Adriano Jimenez v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12966
Non-Argument Calendar
____________________
ADRIANO JIMENEZ,
as Personal Representative of the Estate of Marisela
Fernandez,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
d.b.a. Miami VA Healthcare System,
Defendant-Appellee.
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2 Opinion of the Court 21-12966
___________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-21368-BB
____________________
Before W ILSON, NEWSOM , and BRASHER , Circuit Judges.
PER CURIAM:
The facts of this case are very tragic. Adriano Jimenez’s wife
passed away while receiving treatment at the Department of Vet-
erans Affairs Medical Center in Miami. Jimenez filed suit against
the United States for negligently causing his wife’s death. The dis-
trict court granted summary judgment for the United States. After
careful review, we affirm. While recognizing the tragic nature of
this case, we agree with the district court that there was no evi-
dence on which a jury could determine that the hospital staff
breached the relevant standard of care.
I
Jimenez’s wife, Marisela Fernandez, suffered from amyo-
trophic lateral sclerosis—otherwise known as Lou Gehrig’s disease.
In 2017, she was admitted to the VA Medical Center in Miami with
an acute decline in dysphagia. She underwent surgery for the
placement of a percutaneous gastro-jejunostomy (PGJ) feeding
tube. And the surgery appeared successful.
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21-12966 Opinion of the Court 3
Later, however, Fernandez needed to use the restroom. So
three nurses executed a “Hoyer lift” to move her from the hospital
bed. During the maneuver, Fernandez cried out in pain.
Her condition then worsened. The hospital staff stopped
her feedings and completed an X-ray and CT scan. The testing re-
vealed free abdominal air, a collapsed stomach, and fluid in the pel-
vis. Accordingly, doctors performed another surgery to remove
the PGJ tube—which had become dislodged.
The next day, Fernandez became unresponsive and passed
away. Her autopsy revealed that she had died of sepsis and aspira-
tion pneumonia due to complications arising from the dislodged
PGJ tube.
Jimenez sued the United States under the Federal Tort
Claims Act, alleging various theories of medical negligence. The
district court granted the government’s motion for summary judg-
ment, explaining that Jimenez “fail[ed] to present any expert evi-
dence with respect to the standard of care applicable to the place-
ment and securing of a PGJ tube or the proper use of a Hoyer lift
to move a patient.” Jimenez appealed.
II
“We review
de novo a district court’s order granting sum-
mary judgment, viewing all evidence in favor of the nonmoving
party.”
Gelber v. Akal Sec., Inc., 14 F.4th 1279, 1282 n.2 (11th Cir.
2021). Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the
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4 Opinion of the Court 21-12966
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
III
Plaintiffs injured by the negligence of the VA’s medical pro-
fessionals can sue the United States under the FTCA.
Smith v.
United States, 7 F.4th 963, 973 (11th Cir. 2021). When they do, the
“source of substantive liability” is the “‘law of the place where the
act or omission occurred.’”
FDIC v. Meyer, 510 U.S. 471, 477–78
(1994) (quoting 28 U.S.C. § 1346(b)). Here, that means the law of
Florida governs our analysis.
In Florida, a medical-negligence claimant has the burden of
proving that “the alleged actions of the health care provider repre-
sented a breach of the prevailing professional standard of care.”
Fla. Stat. § 766.102(1). “The standard of professional care is a level
of care, skill, and treatment that, in consideration of all surrounding
circumstances, is recognized as acceptable and appropriate by sim-
ilar and reasonably prudent health care providers.”
Saunders v.
Dickens, 151 So. 3d 434, 441 (Fla. 2014) (citing Fla. Stat.
§ 766.102(1)). Establishing this standard “usually necessitates ex-
pert testimony by those physicians who perform similar services in
the community.”
Bush v. United States, 703 F.2d 491, 496 (11th
Cir. 1983);
accord Pate v. Threlkel, 661 So. 2d 278, 281 (Fla. 1995).
While his wife’s death was certainly tragic, Jimenez hasn’t
marshaled evidence from which a reasonable jury could conclude
that the VA breached its duty of care. Jimenez doesn’t dispute that
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21-12966 Opinion of the Court 5
the VA acted reasonably following the Hoyer lift—as his own ex-
pert acknowledged. But he insists that the evidence shows that the
hospital breached its duty when its staff (a) placed and secured the
PGJ tube or (b) executed the Hoyer lift. We disagree as to both.
Starting with the placement of the PGJ tube, one of the de-
fendant’s experts opined that the procedure “was performed with-
out complication and the tube was confirmed to be in good posi-
tion with the aid of fluoroscopy.” The tube was also “se-
cured . . . in place with a self-retaining loop and balloon.” As a re-
sult, the expert was “quite confident in saying that the standard of
care was met . . . despite [the] unfortunate outcome.” And another
expert was of the same opinion. In response, Jimenez’s expert, Dr.
Steven Lee-Kong, noted that “dislodgement of gastronomy tubes
is a known complication of their use,” and he confirmed that “the
risks of dislodgement can be minimized by careful attention during
their placement.” But Dr. Lee-Kong didn’t offer any opinion as to
the applicable standard of care for placing or securing PGJ tubes.
Nor did he suggest that the standard was breached here. As such,
Dr. Lee-Kong’s expert report doesn’t create a genuine issue of ma-
terial fact.
That brings us to the Hoyer lift. Again, both defense experts
concluded that the lift wasn’t performed negligently. And again,
Dr. Lee-Kong didn’t offer a contrary opinion. To be sure, he said
that “it appears that the tube was dislodged on or around the time”
Fernandez was moved. But he didn’t suggest or explain how the
tube becoming dislodged was a product of negligence. Nor did he
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6 Opinion of the Court 21-12966
offer any opinion as to whether the hospital staff breached medical
protocol in executing the lift. He simply noted that the risk of dis-
lodgement could be “minimized” by exercising “careful attention”
during patient movement. He then declined to offer an opinion as
to whether such attention was exercised in this case, remarking
only that “[d]etails surrounding how [Fernandez] was moved
should be more clearly characterized further.” Thus, Dr. Lee-
Kong’s report doesn’t permit Jimenez to survive summary judg-
ment on the lift-related claim either.
Finally, Jimenez emphasizes his testimony that his wife im-
mediately cried out in pain while being lifted. He’s right that a rea-
sonable jury could infer from this testimony that the PGJ tube be-
came dislodged during the Hoyer lift. But causation isn’t enough
to establish liability.
See Gooding v. Univ. Hosp. Bldg., Inc., 445
So. 2d 1015, 1018 (Fla. 1984). Instead, the plaintiff must prove that
the harm was proximately caused
by a breach of the standard of
care. “Negligence cannot be inferred from the fact that the” medi-
cal provider’s actions were “unsuccessful or terminated in unfortu-
nate results.”
Sims v. Helms, 345 So. 2d 721, 723 (Fla. 1977);
see
also Fla. Stat. § 766.102(3)(b).
* * *
In sum, Jimenez failed to offer evidence as to “what standard
of care existed under the circumstances of the case.”
Stepien v. Bay
Mem’l Med. Ctr., 397 So. 2d 333, 334 (Fla. Dist. Ct. App. 1981). Ab-
sent such evidence, “a lay jury could not have determined, except
by pure speculation, whether [the hospital staff] chose the correct
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21-12966 Opinion of the Court 7
method of treatment or whether [they] deviated from accepted
medical practice” in placing and securing the PGJ tube or executing
the Hoyer lift.
Sims, 345 So. 2d at 723. Summary judgment was
therefore appropriate.
See id. at 724.
We AFFIRM.
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