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Bailey v. Beckley VAMC

United States District Court, S.D. West Virginia, Beckley Division

May 7, 2018




         This case concerns a medical negligence action brought against Defendants involving alleged medical malpractice when Plaintiff was treated at the Beckley Veterans Affairs Medical Center (“VA”) occurring in the two and a half years prior to the amputation of his toe on February 13, 2017. (ECF No. 10 at 5) By Standing Order, this matter was referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 3)

         There are two matters pending before this Court:

         The first is the United States' Motion to Dismiss the Beckley V.A. Medical Center, Dr. Sertoz, Dr. Taylor, Dr. Harper, K. Grimes, K. McGraw and Dr. Berryman and Substitute the United States, filed on March 22, 2018. (ECF No. 22) The United States asserts in its Memorandum that presuming Plaintiff has a cognizable claim of negligence, this matter must be brought against the United States pursuant to the Federal Tort Claims Act, and further, the United States has filed its certification that these named defendants were acting within the scope of their employment at the time Plaintiff's claims arose. (ECF Nos. 23, 23-1) On March 23, 2018, the undersigned issued a Roseboro[1] notice to Plaintiff directing him to file his response to the Motion. (ECF No. 25) On April 18, 2018, Plaintiff filed a response stating he had no objection to the substitution of parties. (ECF No. 30) Due to Plaintiff's no objection to the dismissal and substitution of the parties, and based on the pertinent legal authority for same, restated infra, the undersigned respectfully recommends that the United States' Motion substituting parties be GRANTED.

         The second matter pending before this Court concerns the United States' Motion to Dismiss For Failure to Comply with the West Virginia Medical Practice Liability Act. (ECF No. 27) Having examined Plaintiff's Complaint, Amended Complaint and the responsive pleadings and having consulted the pertinent legal authorities herein, the undersigned recommends that the United States' Motion to dismiss Plaintiff's Complaint(s) be GRANTED for the reasons explained infra.


         On December 26, 2017[2] (ECF No. 2), Plaintiff, acting pro se, [3] filed a Complaint seeking relief pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671, et seq.[4]Plaintiff sues Defendants “due to inaction and mismanagement and misinformation” concerning a blood blister that “did not get treated resulting in infection then ulcer which resulted in 2 ½ years of fighting to save [the] toe as treatment was stopped with no explanation then lied to preventing [Plaintiff] from proper care[.]” (ECF No. 10 at 6) As a result, on February 13, 2017, Plaintiff's toe was amputated. (Id.) Plaintiff further alleges that he is entitled to punitive damages as he was denied treatment under the guise that it was not FDA approved, but he later found such treatment was available at other VA medical centers, in addition, he has balance issues since the loss of his toe. (Id. at 7) As relief, Plaintiff requests one million dollars. (Id. at 6)

         Of interest herein, and in response[5] to this Court's order to amend (ECF No. 9) filed on February 16, 2018, Plaintiff specifically alleged the following:

         Plaintiff saw his primary care physician who scheduled Plaintiff an appointment on September 7, 2014 to see podiatrist Dr. Sertoz because his primary care physician “wanted the blood drained as soon as possible” from his left great toe. (Id. at 2) Dr. Sertoz “simply then cut my toenails” and gave him a follow up appointment in December 2014 to cut them again, but Dr. Sertoz did not provide Plaintiff any instructions for care. (Id.) Plaintiff alleges that Dr. Sertoz's notes indicated the area on his toe “was dried up”, but Plaintiff disputes this and references a contrasting report by his primary care provider. (Id.) Plaintiff alleges that his toe became infected, which he treated with over the counter remedies and antibiotics, “like Neosporin”, but he returned to the ER. (Id.) Ultimately, Plaintiff alleges that had Dr. Sertoz treated his toe properly from the start, he would not have had multiple treatments over the two and half years that were of no avail, leading to the amputation at the Salem VA. (Id. at 4)

         Plaintiff alleges that Dr. Hanrado did testing and provided antibiotics but did not provide after care instructions; the toe did not improve, however, and Plaintiff saw Dr. Oye who drained the wound and “cut the portion of the infection off[.]” (Id.)

         Plaintiff describes Sandy Harper of the “wound clinic” as a “saint and miracle worker”, who tried different treatments in January or February of 2015, but “something happened” and the wound clinic closed, and Plaintiff was referred back to Dr. Taylor or Dr. Oye for debridement. (Id. at 3) Plaintiff asserts that “[s]he is the only one who can answer as to what happened and why as she did return but went to a different position and the wound clinic did not reopen for years.” (Id.) Plaintiff alleges that “I feel in no way I received standard practice of care other then [sic] the short period under the care of Sandy Harper.” (Id. at 4)

         Plaintiff alleges that he only saw Dr. White twice, who was hired as the Beckley VA's wound specialist. (Id.) Plaintiff alleges that Dr. White handled his feet and wounded toe without gloves; Dr. White's “only instructions at the time was I needed to make love to my foot and shoes for the wound.” (Id.) Dr. White sent Plaintiff to Dr. Taylor for debridement. (Id.) “No treatments like the ones done with Harper was ever attempted” and Plaintiff reported to his primary care provider that he was not comfortable with Dr. White. (Id.)

         Plaintiff appears to allege that when he filed a formal complaint against Dr. White, he met with Karilyn Grimes and another woman who said nothing during their meeting; although he does “not know what [Grimes] role within the Veterans administration was”, she did not give Plaintiff an answer for why the wound clinic was closed, but she stated that his toe treatment had stopped because it “was not FDA approved.” (Id.) Plaintiff alleges that the treatment worked because his toe was healing, however, his only options were to see Dr. White, Dr. Oye, or go to the Salem VA Medical Center. (Id.) Plaintiff alleges that he went to the Salem VA and learned that his treatment had indeed been FDA approved; when he attempted to get an explanation for this from Karilyn Grimes, she instead referred him to contact the other woman who was present at their initial meeting. (Id.)

         Plaintiff alleges that Katherine McGraw, the director of the Beckley VA, caused “the lack of funds” that eventually led to the wound clinic's closure. (Id. at 4) Plaintiff alleges that she “and others at the VA” get bonuses for operating the VA under budget, and the cutbacks led to his subpar care. (Id.)

         Plaintiff alleges that Dr. Berryman, Chief of Staff of the Beckley VA is a “[s]tand up man who was always very straight forward with me but feel he could of done ...

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