Kaci C. Myers v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12733
Non-Argument Calendar
____________________
KACI C. MYERS,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-02486-CAP
____________________
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2 Opinion of the Court 22-12733
Before W ILSON , L UCK , and JULIE C ARNES , Circuit Judges.
PER CURIAM:
Plaintiff in this pro se action asserts medical malpractice
claims under the Federal Tort Claims Act (“FTCA”) arising from
her treatment at the Atlanta Veterans Administration Medical Cen-
ter (“VAMC”). Specifically, Plaintiff claims she received inade-
quate care from doctors at the VAMC during a hysterectomy and
emergency surgery in 2016 and follow-up care in 2017. The Gov-
ernment moved for summary judgment on Plaintiff’s FTCA claims
and the district court granted the motion, holding that Plaintiff
failed to present evidence that the VAMC doctors named in her
complaint breached the applicable standard of care or that any such
breach proximately caused Plaintiff’s alleged injuries. After a care-
ful review of the record and the briefing submitted by the parties,
we AFFIRM.
BACKGROUND
In her complaint, Plaintiff asserts numerous medical mal-
practice claims arising from her treatment by Drs. Jennifer
Goedken and Alfredo Nieves1 at the Atlanta VAMC.2 The claims
primarily relate to a hysterectomy Dr. Goedken performed on
Plaintiff in 2016 and follow-up treatment for complications
1 Dr. Nieves is alternately referred to in the record as Dr. Nieves and Dr.
Nieves-Gonzalez. We refer to him in this opinion as Dr. Nieves.
2 The operative complaint is Plaintiff’s second verified pro se complaint.
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22-12733 Opinion of the Court 3
provided by Drs. Goedken and Nieves at the VAMC ER the week
after the surgery.
Plaintiff began treatment at the Atlanta VAMC clinic for var-
ious gynecological problems in August 2010. Most relevant here,
Dr. Goedken treated Plaintiff for pelvic and menstrual pain near
the end of 2015. After several unsuccessful courses of treatment,
Dr. Goedken recommended, and Plaintiff agreed to undergo, a lap-
aroscopic-assisted vaginal hysterectomy and labial cyst removal.
Dr. Goedken performed the hysterectomy on June 7, 2016.
Plaintiff claims Dr. Goedken perforated her bowel with a Veress
needle during the surgery, and that she failed to document the per-
foration in the surgical records. Plaintiff alleges further that Dr.
Goedken improperly discharged her from the hospital the day after
surgery despite a high white blood cell count indicating an infec-
tion.
Plaintiff returned to the VAMC Emergency Room (“ER”) on
June 15, 2016, complaining of a swollen abdomen, loss of appetite,
fever, and chills. Plaintiff claims she arrived at the ER with sepsis,
and the Government agrees that at some point during her treat-
ment at the ER she met the criteria for sepsis, but not septic shock.
Plaintiff was evaluated in the ER by Drs. Goedken and Nieves.
Based on a pelvic and abdominal CT scan, Dr. Nieves determined
that Plaintiff had a pelvic abscess. Plaintiff claims the CT scan indi-
cated a bowel obstruction, but Dr. Nieves testified that Plaintiff’s
bowel was not obstructed but rather compromised externally due
to infection.
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4 Opinion of the Court 22-12733
Dr. Nieves performed surgery on June 16, 2016, to drain
Plaintiff’s abscess. During the surgery, Dr. Nieves noted and re-
moved a necrotic left ovary. He also oversewed a small indenta-
tion on a segment of Plaintiff’s bowel with dissolvable sutures, but
he did not document the suturing procedure in the surgical rec-
ords. Dr. Nieves drained Plaintiff’s abscess during the surgery as
planned, but Plaintiff claims he negligently failed to submit a sam-
ple of the drainage to pathology.
When Dr. Nieves spoke to Plaintiff the day after the drain-
age surgery, he advised her that she had an infection, but he denied
that her bowel was perforated. In a subsequent patient care meet-
ing, however, Plaintiff was advised that Dr. Nieves had stitched
over a small dimple in her bowel during the drainage surgery to
ensure the bowel would not open. Plaintiff claims the size of the
dimple is consistent with the size of a Veress needle.
Plaintiff had a slow recovery from the drainage surgery, but
she was able to be discharged from the hospital on oral antibiotics
on June 28, 2016. She claims her recovery was hindered by her
misdiagnosis with upper right stomach pain as her primary com-
plaint instead of sepsis, abdominal abscesses, bowel injury, and ne-
crotic left ovary. According to Plaintiff the failure to properly diag-
nose her caused additional damage, including difficulty with her
follow-up care in the fall of 2016 and her subsequent misdiagnosis
and improper treatment with antibiotics when she returned to the
ER in January 2017.
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22-12733 Opinion of the Court 5
Based on the alleged treatment errors described above,
Plaintiff filed the pro se complaint in this case, asserting numerous
medical malpractice claims under the FTCA. Briefly summarizing
her claims, Plaintiff alleges in her complaint that Dr. Goedken per-
forated her bowel with a Veress needle during the hysterectomy
surgery and compounded the error by failing to document the
complication, that she prematurely dismissed Plaintiff from the
hospital after her hysterectomy despite a high white blood cell
count indicating an infection, and that she failed to properly diag-
nose sepsis when Plaintiff returned to the VAMC ER the following
week. As for Dr. Nieves, Plaintiff alleges that he misdiagnosed her
when he treated her at the VAMC ER, that he failed to document
the bowel suturing procedure he performed during the drainage
surgery, and that he failed to submit the drainage substance to pa-
thology.3 According to Plaintiff, these medical errors caused
3 Plaintiff’s statement of facts attached to her complaint also includes allega-
tions related to a sexual assault allegedly inflicted by a male chaperone during
a gynecology visit to the VAMC in 2012 and harassment by an off-duty VA
police officer in 2016. The district court held that Plaintiff had abandoned
these claims. Plaintiff does not challenge that holding on appeal, and she does
not present any substantive argument as to the claims in her appellate briefing,
although she mentions in passing the sexual assault allegation. Accordingly,
we find that Plaintiff has abandoned any sexual assault or harassment claims
and we do not address those claims here. See Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 680 (11th Cir. 2014) (“When an appellant fails to challenge
properly on appeal one of the grounds on which the district court based its
judgment, he is deemed to have abandoned any challenge of that ground, and
it follows that the judgment is due to be affirmed.”).
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6 Opinion of the Court 22-12733
physical injury, pain and suffering, and emotional trauma compen-
sable in the amount of $25 million in damages.
The parties filed cross-motions for summary judgment as to
Plaintiff’s FTCA claims. In support of its motion, the Government
argued there was no competent evidence to establish (1) a breach
of the applicable standard of care or (2) that Plaintiff’s injuries were
proximately caused by such a breach—both of which elements are
essential to a medical malpractice claim under the legal standard
that governs this case. Plaintiff, on the other hand, argued that the
Government had admitted all the material facts underlying her
claims and, consequently, that she was entitled to judgment on
those claims as a matter of law.
The district court granted the Government’s motion for
summary judgment. The court noted in its summary judgment
order that FTCA claims are governed by the law of the state where
the alleged tort occurred, here Georgia. As argued by the Govern-
ment, to prevail on a medical malpractice claim under Georgia law,
a plaintiff must prove that (1) the medical professionals who are the
subject of the claim breached a duty owed to the plaintiff by “failing
to exercise the requisite degree of skill and care” in treating her and
(2) the failure proximately caused the plaintiff’s alleged injury. See
Zwiren v. Thompson, 276 Ga. 498, 499 (2003). Georgia law generally
requires both elements to be proven through expert testimony be-
cause they involve “specialized expert knowledge beyond the ken
of the average layperson.” See id. at 500. Because Plaintiff did not
offer expert testimony as to either element, the district court
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22-12733 Opinion of the Court 7
agreed with the Government that she did not present sufficient ev-
idence to survive summary judgment. Accordingly, the court
granted the Government’s motion for summary judgment and de-
nied Plaintiff’s cross-motion.
Plaintiff appeals the district court’s summary judgment or-
der. Plaintiff concedes in her appellate brief that she failed to pro-
vide expert testimony to support her medical malpractice claims,
but she argues that expert testimony is not required because some
of her claims are grounded in principles of ordinary negligence and
admitted errors rather than professional negligence. In support of
this argument, Plaintiff relies on Dr. Nieves’s testimony acknowl-
edging that he failed to diagnose her with sepsis or to document
her sepsis, bowel obstruction, and bowel suturing. In addition to
being negligent, Plaintiff claims Dr. Nieves’s documentation errors
constituted fraudulent concealment and falsification of medical
records and that they violated various state and federal laws, in-
cluding O.C.G.A. §§ 16-10-94.1, 16-10-20, and 51-6-2 and 18 U.S.C.
§ 1035. Plaintiff also complains in her brief about discovery viola-
tions and procedural errors committed by the Government, includ-
ing an untimely filed summary judgment motion.
As discussed below, the documentation errors, procedural
issues, and discovery violations alleged in Plaintiff’s appellate brief
do not remedy her admitted lack of competent evidence to prove
that any VAMC doctor or medical professional breached the appli-
cable standard of care in treating her or that such a breach proxi-
mately caused the injuries for which she seeks to recover in her
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8 Opinion of the Court 22-12733
complaint. Contrary to Plaintiff’s argument on appeal, the claims
asserted in her complaint are for the most part grounded in profes-
sional negligence rather than ordinary negligence or admitted er-
rors, and thus they require competent evidence proving profes-
sional negligence. To the extent Plaintiff arguably alleges ordinary
negligence in the form of documentation errors, she still needs—
and admittedly has failed to provide—expert testimony to show
how the errors proximately caused her claimed injuries. Finally,
Plaintiff did not assert a fraud or misrepresentation claim below,
but even if she had, the statutes and regulations cited in her appel-
late briefing do not appear to give rise to a compensable claim un-
der the FTCA, nor do they support her claimed damages in this
case. Accordingly, we affirm the district court’s order granting
summary judgment to the Government on Plaintiff’s FTCA claims
and denying Plaintiff’s cross-motion.
DISCUSSION
I. Standard of Review
We review the district court’s summary judgment order de
novo, applying the same standard as the district court. Travelers
Prop. Casualty Co. of Am. v. Ocean Reef Charters LLC, 71 F.4th 894, 904
(11th Cir. 2023). When conducting our review, we construe the
facts and draw all inferences in the light most favorable to the non-
moving party. See Harrigan v. Metro Dade Police Dep’t, 977 F.3d 1185,
1192 (11th Cir. 2020). Viewing the evidence in that manner, sum-
mary judgment is appropriate when “there is no genuine dispute
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22-12733 Opinion of the Court 9
as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
As a pro se litigant, Plaintiff’s pleadings “are held to a less
stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.” Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998). However, this leniency does not
give a court “license to serve as de facto counsel for a party, or to
rewrite an otherwise deficient pleading in order to sustain an ac-
tion.” GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369 (11th
Cir. 1998) (citations omitted), overruled on other grounds by Ashcroft
v. Iqbal, 556 U.S. 662 (2009).
II. Analysis
A. Abandoned Claims and Irrelevant Allegations
We note as an initial matter that Plaintiff abandoned many
of the claims asserted in her appellate brief by not raising them be-
low, and that she likewise abandoned several of the claims she as-
serted below by not addressing them on appeal. With respect to
the former category of claims—claims that were abandoned be-
low—Plaintiff argues on appeal that the Government is liable for
fraudulent concealment, misrepresentation, and falsification of her
medical records based on various documentation errors commit-
ted by Dr. Nieves. In support of these claims, Plaintiff cites state
and federal laws governing medical record-keeping, including
O.C.G.A. §§ 16-10-20, 16-10-94.1, and 51-6-2 and 18 U.S.C. § 1035,
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10 Opinion of the Court 22-12733
as well as VA guidelines.4 According to Plaintiff, Dr. Nieves’s fail-
ure to keep accurate medical records in her case violated these laws
and thus gives rise to a claim for recovery. Relatedly, Plaintiff ar-
gues on appeal that Dr. Nieves had a history of malpractice that
could not be uncovered because he was registered under the name
Dr. Nieves with the Georgia Medical Board but referred to himself
as Dr. Nieves-Gonzalez while practicing at the VAMC, and that the
discrepancy violated O.C.G.A. § 43-34A-3(c), a Georgia statute gov-
erning the creation and contents of physician profiles by the Geor-
gia Composite Medical Board.
Even assuming Dr. Nieves violated the cited statutes and
guidelines, Plaintiff makes no plausible argument that the violation
is cognizable under the FTCA. See Smith v. United States, 14 F.4th
1228, 1232 n.1 (11th Cir. 2021) (noting that the FTCA “does not
cover breaches of federal statutory or regulatory duties that do not
apply to private parties” and that it expressly excludes claims for
“misrepresentation [and] deceit” (citation and quotation marks
omitted)). But in any event, Plaintiff abandoned her claims for
fraud, misrepresentation, or falsification of records by failing to
4 O.C.G.A. §§ 16-10-20 and 16-10-94.1 make it a crime to misrepresent or fal-
sify statements in a document within the jurisdiction of the State government
or to intentionally conceal, destroy, alter, or falsify a patient’s health record,
respectively. Although O.C.G.A. § 51-6-2 creates a private cause of action for
willful misrepresentation of a material fact, it does not establish a private cause
of action for mere concealment except in certain circumstances. Finally, 18
U.S.C. § 1035 makes it a crime to misrepresent or falsify a fact related to pay-
ment for healthcare benefits or services.
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22-12733 Opinion of the Court 11
assert those claims below.5 See Access Now v. Sw. Airlines Co., Inc.,
385 F.3d 1324, 1332 (11th Cir. 2004) (explaining that this Court will
entertain an argument raised for the first time on appeal only in
exceptional circumstances that do not apply here, for example, if
the issue involves a pure question of law or if its proper resolution
is beyond any doubt). Because the district court did not have an
opportunity to rule on Plaintiff’s fraud, misrepresentation, and fal-
sification claims, we do not consider those claims on appeal. See id.
at 1332–33.
As to the claims abandoned on appeal, Plaintiff’s appellate
brief focuses solely on Dr. Nieves’s failure to diagnose her with sep-
sis in the VAMC ER and his various alleged documentation errors.
It does not identify as an issue or otherwise address any of the
claims in the operative complaint related to: (1) Dr. Goedken’s al-
leged negligence, including the perforation of Plaintiff’s bowel with
a Veress needle and her discharge from the hospital with a high
white blood cell count, (2) Dr. Nieves’s failure to submit the sub-
stances from Plaintiff’s drainage surgery to pathology, or (3) treat-
ment errors during Plaintiff’s follow-up visit in January 2017. Plain-
tiff presumably abandoned these claims because they so obviously
fall into the category of medical negligence rather than ordinary
negligence and, as such, they cannot survive summary judgment
5 Although Plaintiff made a vague and passing reference to “fraud” in her sum-
mary judgment brief below, all the claims in her complaint are grounded in
negligence. She did not seek to amend her complaint to add such claims, nor
did she otherwise suggest in her complaint that there was any basis for her to
recover against the Government for fraud.
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12 Opinion of the Court 22-12733
given Plaintiff’s admitted failure to produce any expert testimony.
See Beach v. Lipham, 276 Ga. 302, 304 (2003) (“The proof required to
rebut th[e] presumption [medical services were performed in an
ordinary, skillful manner] must come from expert medical wit-
nesses.” (quotation marks omitted)). Nevertheless, we affirm the
district court’s order granting summary judgment as to these
claims on the ground of abandonment.6 See Sapuppo v. Allstate Flo-
ridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (“When an appel-
lant fails to challenge properly on appeal one of the grounds on
which the district court based its judgment, he is deemed to have
abandoned any challenge of that ground, and it follows that the
judgment is due to be affirmed.”).
6 Although we rest our affirmance on abandonment grounds, we note that
Plaintiff did not present any evidence in response to the testimony of Drs.
Goedken and Nieves that they complied with the applicable standard of care
throughout the course of her treatment. Specifically, Dr. Nieves testified that
he inspected Plaintiff’s entire bowel during the drainage surgery and did not
see evidence of a perforation during the hysterectomy. As to her subsequent
care, Dr. Goedken testified that the timing of Plaintiff’s discharge was within
the standard of care set out by the American College of Obstetricians and Gy-
necologists, that it is not unusual for a patient to have a blood cell count in the
range Plaintiff experienced one day after surgery, and that discharge was ap-
propriate given Plaintiff’s measures on other benchmarks. Dr. Nieves stated
that he and Dr. Goedken believed Plaintiff’s symptoms at the ER were related
to a postoperative pelvic abscess, which was not caused or exacerbated by
medical negligence, and which was best treated by the interventions provided
to her—antibiotics and drainage surgery. According to Dr. Nieves, he was
unable to draw a culture from the drainage substance to send to pathology.
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22-12733 Opinion of the Court 13
Finally, Plaintiff includes in her appellate brief a lengthy dis-
cussion of the Government’s alleged procedural errors and discov-
ery violations below. For example, Plaintiff notes that the Govern-
ment’s motion for summary judgment was untimely and that the
Government improperly sought to change its responses to Plain-
tiff’s requests for admissions as to certain matters. Plaintiff does
not explain, and it is not readily apparent, how the procedural er-
rors and discovery violations noted in her appellate brief are rele-
vant to the district court’s summary judgment decision. Im-
portantly, the errors and violations do not supply the evidence that
is essential to Plaintiff’s claims and that is missing from the record:
expert testimony indicating that the doctors named in her com-
plaint or other medical personnel at the VAMC breached the stand-
ard of care in treating her or that any such breach proximately
caused her to suffer an injury. Nor does Plaintiff argue that the
errors or violations prevented her from producing such evidence.
Plaintiff’s arguments concerning these issues are thus irrelevant to
her appeal, and we do not consider them further.
B. Plaintiff’s Remaining FTCA Claims
As mentioned above, Plaintiff’s argument on appeal relies
entirely on Dr. Nieves’s failure to diagnose her with sepsis in the
VAMC ER, as well as his alleged documentation errors with re-
spect to her sepsis, bowel obstruction and perforation, and bowel
suturing. Again, Plaintiff seeks to recover from the Government
for injuries allegedly caused by these errors pursuant to the FTCA.
As relevant here, the FTCA authorizes a plaintiff to pursue “claims
against the [Federal Government] seeking money damages for
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14 Opinion of the Court 22-12733
injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of a federal employee acting
within the scope of his employment.” Smith, 14 F.4th at 1232 (quo-
tation marks omitted). The Government is liable under the FTCA
for such a wrongful act or omission “if a private person” in like cir-
cumstances “would be liable to the [plaintiff] in accordance with
the law of the place where the act or omission occurred.” Id. (citing
28 U.S.C. § 1346(b)(1)). It is undisputed that Dr. Nieves was a fed-
eral employee acting within the scope of his employment when he
treated Plaintiff. In the context of the FTCA, “the law of the place
where the act or omission occurred refers to the law of the state
where the alleged tort occurred.” Id. (quotation marks omitted).
Here, that state is Georgia.
As set out in her complaint, Plaintiff’s claims sound in med-
ical malpractice. To prevail under Georgia law on a medical mal-
practice claim, a plaintiff must prove: (1) a duty arising from the
doctor-patient relationship, (2) a breach of that duty by failing to
exercise the requisite degree of skill and care in providing treat-
ment, and (3) that the failure proximately caused the plaintiff in-
jury. Zwiren, 276 Ga. at 499. As to the second element, Georgia
law presumes medical services have been provided in an ordinarily
skillful manner and the plaintiff has the burden of proving other-
wise. Beach, 276 Ga. at 303 (reaffirming the presumption of due
care that applies in Georgia medical malpractice cases). Expert tes-
timony generally is required to meet that burden. Id. at 304 (“The
proof required to rebut [the] presumption [of due care in a medical
malpractice case] must come from expert medical witnesses.”
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22-12733 Opinion of the Court 15
(quotation marks omitted)). Likewise, a plaintiff must present ex-
pert testimony to establish causation in a medical malpractice case,
and the proffered expert “is required to express some basis for both
the confidence with which his [causation] conclusion is formed,
and the probability that his conclusion is accurate.” Zwiren, 276 Ga.
at 501 (quotation marks omitted).
Plaintiff concedes that she failed to provide expert testimony
to show either a breach of the standard of care by the VAMC doc-
tors who treated her or that any such breach proximately caused
her claimed injuries. Nevertheless, Plaintiff argues the district
court erred when it granted summary judgment to the Govern-
ment because her claims are (1) grounded in ordinary negligence
rather than professional negligence, and thus exempt from the ex-
pert testimony requirement or (2) supported by admissions of neg-
ligence made by the VAMC doctors. It is true that a Georgia plain-
tiff is not required to present expert testimony if her claim against
a medical professional involves ordinary negligence rather than
professional negligence, but the claims set out in the operative
complaint overwhelmingly—and clearly—involve professional
negligence. See Se. Pain Specialists, P.C. v. Brown, 303 Ga. 265, 271
(2018) (“Medical malpractice exists . . . where the act or omission
by a professional requires the exercise of expert medical judg-
ment.” (quotation marks omitted)). To the extent any of Plaintiff’s
claims arguably raise an issue of ordinary negligence, she still
would need expert testimony to show that the negligence proxi-
mately caused the medical injuries claimed in her complaint, which
she admittedly does not have. Likewise, because of the lack of
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16 Opinion of the Court 22-12733
competent evidence to establish causation, the admissions cited in
Plaintiff’s appellate brief do not save her FTCA claims in this case.
First, Plaintiff’s claim that Dr. Nieves negligently failed to
diagnose her with sepsis based on the symptoms she presented in
the VAMC ER clearly is grounded in medical negligence rather
than ordinary negligence. See id. at 266 (holding that the lower
court “erred in concluding that an ordinary negligence instruction
was authorized by evidence that a doctor . . . responded inade-
quately to medical data provided by certain medical equipment
during a medical procedure”). As the Georgia Court of Appeals has
explained, whether a claim alleges professional or ordinary negli-
gence “depends on whether the . . . alleged negligence required the
exercise of professional judgment and skill.” Giddens v. Med. Ctr. of
Central Ga., 353 Ga. App. 594, 604 (2020) (citation omitted). A claim
that “calls into question the conduct of the professional in his area
of expertise” is grounded in professional negligence whereas a
claim based on “[a]dministrative, clerical, or routine acts demand-
ing no special expertise fall[s] in the realm” of ordinary negligence.
Id. Choosing the correct diagnosis based on the array of symptoms
presented by a patient in the ER is a quintessentially medical deci-
sion rather than an administrative or clerical act. See Se. Pain Spe-
cialists, P.C., 303 Ga. at 266. As such, Plaintiff must present expert
testimony to show that Dr. Nieves’s failure to diagnose sepsis
breached the applicable standard of care.
Nor can Plaintiff rely on an admission of negligence with re-
spect to the sepsis diagnosis, as she argues in her appellate brief.
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22-12733 Opinion of the Court 17
Plaintiff claims in her brief that Dr. Nieves admitted he failed to
diagnose her with sepsis in the VAMC ER and, consequently, that
she does not need expert testimony to establish that fact. Presum-
ably the admission Plaintiff is referring to is the Government’s
statement of undisputed material fact indicating that Plaintiff “met
the criteria for sepsis but not septic shock” when Dr. Nieves treated
her at the VAMC ER. That statement establishes that Plaintiff dis-
played symptoms of sepsis at some point during her treatment at
the VAMC ER, but it does not constitute an admission that Dr.
Nieves or any other VAMC employee breached the standard of
care in response to Plaintiff’s symptoms, nor does any such admis-
sion appear anywhere else in the record. On the contrary, Dr.
Nieves testified that based on Plaintiff’s symptoms and a CT scan,
he and Dr. Goedken believed she was suffering from a postopera-
tive pelvic abscess, which was not caused or exacerbated by medi-
cal negligence, and which was best treated by the interventions
provided to her: antibiotics and drainage surgery. In other words,
Dr. Nieves did not admit negligence, but rather testified that his
care met the applicable standard of care in diagnosing and treating
Plaintiff’s symptoms in the ER.
Several of Dr. Nieves’s alleged documentation errors simi-
larly call into play his medical judgment and expertise. For exam-
ple, Plaintiff argues Dr. Nieves negligently failed to document her
bowel obstruction and perforated bowel. According to Plaintiff,
such documentation is an administrative or clerical act that re-
quires no special expertise, and Dr. Nieves’s failures in this regard
thus qualify as ordinary negligence. The problem with Plaintiff’s
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18 Opinion of the Court 22-12733
argument is that Dr. Nieves testified that, in his opinion: (1) Plain-
tiff’s bowel was not obstructed but rather externally compromised
due to infection and (2) there was no evidence Plaintiff’s bowel was
perforated, although he did see a dimple or indentation on a seg-
ment of the bowel that needed to be oversewn during surgery.
Plaintiff did not present any expert testimony to challenge Dr.
Nieves’s opinion that she did not have an obstructed or perforated
bowel, so the only inference that can be drawn from the record is
that Dr. Nieves failed to document these conditions because he
concluded Plaintiff did not suffer from them. That again is a med-
ical determination, the diagnosis and documentation of which can-
not be considered ordinary negligence. See Giddens, 353 Ga. App.
at 604.
The only alleged documentation error that possibly could
qualify as admitted or ordinary negligence is Dr. Nieves’s failure to
note in the surgical records the bowel suturing he performed dur-
ing the drainage surgery. As Plaintiff points out, Dr. Nieves, in his
deposition, characterized this documentation failure as a “lapse.”
We will assume, though we do not decide, that this testimony
shows a breach of the standard that applies to documentation. We
also will assume that Dr. Nieves’s documentation error can be con-
sidered an administrative or clerical error, albeit the error is similar
to a doctor’s breach of the duty to inform a patient of her medical
condition, which under Georgia law constitutes medical negli-
gence. See Piedmont Hosp., Inc., v. D.M., 335 Ga. App. 442, 447
(2015) (holding that the plaintiff’s claims based on his doctor’s fail-
ure to notify him of positive HIV test results arose “out of the
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22-12733 Opinion of the Court 19
breach of a professional duty to inform [the plaintiff] of his medical
condition and thus must be considered classic medical malpractice
claims”).
Nevertheless, and even assuming Dr. Nieves’s failure to doc-
ument Plaintiff’s bowel suturing qualifies as ordinary negligence or
an admitted error, Plaintiff’s FTCA claim still cannot survive sum-
mary judgment because she has not presented any competent evi-
dence that the error proximately caused her to suffer an injury. Un-
der Georgia law, “a plaintiff cannot recover for medical malprac-
tice, even where there is evidence of negligence, unless [she] estab-
lishes . . . that the negligence either proximately caused or contrib-
uted to cause plaintiff harm.” Zwiren, 276 Ga. at 500 (quotation
marks omitted). Further, causation must be proven by expert tes-
timony establishing a causal connection that is “more than mere
chance or speculation.” Id. at 501 (quotation marks omitted).
Plaintiff admits she failed to present such expert testimony in this
case.
In short, even assuming Dr. Nieves breached the standard of
care when he failed to document Plaintiff’s bowel suturing proce-
dure, there is no competent evidence in the record to show that the
breach proximately caused Plaintiff’s claimed injuries. Plaintiff
claims Dr. Nieves’s documentation error made it difficult for her
to get proper follow-up care and caused her to experience mental
struggles and PTSD, as well as kidney injury, irritable colon, and
adhesions. But without expert testimony to substantiate and ex-
plain it further, the claimed connection between Dr. Nieves’s
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20 Opinion of the Court 22-12733
failure to document the bowel suturing and Plaintiff’s alleged inju-
ries is “mere . . . speculation.” Id. As such, the district court cor-
rectly granted the Government’s motion, and denied Plaintiff’s
cross-motion, for summary judgment as to the FTCA claims as-
serted in this case.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order granting the Government’s motion for summary judgment
on Plaintiff’s FTCA claims and denying Plaintiff’s cross-motion.
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