Brown v. United States

JERRY BROWN PLAINTIFF v. UNITED STATES OF AMERICA and UNITED STATES OF AMERICA, VETERANS' ADMINISTRATION MEDICAL CENTER DEFENDANTS

Civil Action No. 3:20-CV-063-DPJ-FKB

United States District Court, S.D. Mississippi, Northern Division

August 23, 2021

ORDER

DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.

Plaintiff Jerry Brown, a former United States Marine, says the United States Department of Veterans' Affairs Medical Center (VAMC) was negligent and committed medical malpractice in diagnosing and recording his lung cancer. He brings these claims, pro se, under the Federal Tort Claims Act against the VAMC and the United States. Brown now presents three motions (1) motion for summary judgment [40]; (2) motion for tampering with witnesses, victims, or informants [46]; and (3) motion to stay [50]. As explained below, Brown's motions are denied.

I. Background

Brown was diagnosed with kidney cancer as early as 2010. Records [32-4] at 15. He received treatment for this diagnosis at the VAMC in Jackson, Mississippi. Id. at 16-17. During Brown's treatment, doctors found that his kidney cancer had metastasized into his lungs. Id. at 15. After this finding, Brown requested a change in his VA benefits to cover his additional treatment needs. Id. at 11. The VA had previously acknowledged a relationship between contaminated drinking water at Camp Lejeuene, where Brown served during the relevant timeframe, and a variety of conditions, including kidney, liver, and bladder cancer. Id. at 9. But the VA denied Brown's request for service-connection benefits; its examiner concluded that “the evidence of record and available medical and scientific research does not demonstrate a link between [Brown's] claimed Lung cancer and exposure to contaminants in the water supply at Camp Lejeune.” Id.

When Brown also reviewed his medical records, he, too, saw there was no notation of a lung cancer diagnosis, and, in some cases, the records stated he did not have lung cancer. Am Compl. [5] ¶¶ 11, 17, 19. Believing those omissions and others were the result of negligence, Brown brought this suit against the United States and the VAMC, alleging negligence and medical malpractice. Id. ¶¶ 20, 21-27.

Meanwhile, as Brown was litigating this suit, he was also receiving dialysis treatment through the VAMC at the G.V. (Sonny) Montgomery Dialysis Clinic in Jackson, Mississippi. Pl.'s Mot. [43] at 2; VA Letter [43-1]. Around March 2021, the Clinic decided to close and transition its dialysis patients to community dialysis programs. Id. Brown was concerned about this transition and moved for a preliminary injunction to stop the Clinic's closure for three years. Pl.'s Mot. [43] at 4. According to him, the Clinic needed the time “to do research of outside clinics” and ensure the community providers were “not overcrowded, me[t] the health needs of the Plaintiff beyond his dialysis in case of an emergency[, ] and to give the CDC time to provide research that help[s] the medical world.” Id. The Court denied Brown's motion for a preliminary injunction.

Brown's most recent motions relate to his efforts to obtain a preliminary injunction and his negligence and medical-malpractice claims. All three motions have been fully briefed, and the Court has both subject-matter and personal jurisdiction.

II. Summary-Judgment Motion [40]

A. Standard

Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when evidence reveals “no genuine dispute regarding any material fact and that the movant is entitled to judgment as a matter of law.” The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A showing is insufficient if no “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324. In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make credibility determinations or weigh the evidence.” Reeves, 530 U.S. at 150. Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).

B. Analysis

Brown says he is entitled to summary judgment because the VAMC was negligent and committed medical malpractice as a matter of law when it allegedly failed to diagnose his lung cancer and properly record this diagnosis in his medical records. Pl.'s Mot. [40] at 2. While Brown advances two separate claims-medical malpractice and negligence-the claims appear to overlap, as Brown alleges both causes of action are based on the VAMC's alleged negligence in diagnosing and recording his lung cancer. Id. at 1-2; Am. Compl. [5] at 6-7. The Court will therefore address the claim as a medical-malpractice, or medical-negligence, claim. See Sheffield v. Goodwin, 740 So.2d 854, 856 (Miss. 1999) (showing medical negligence and medical malpractice are the same).^[1]

“Under the Federal Tort Claims Act, liability for medical malpractice is controlled by state law, the law of Mississippi in this case.” Chickaway v. United States, 990 F.Supp.2d 650, 674 (S.D.Miss. 2013); see also 28 U.S.C. § 1346(b). To prove medical malpractice in Mississippi, Brown

must prove “that (1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant's breach of duty was a proximate cause of the plaintiff's injury, and; (4) the plaintiff was injured as a result.”

McDonald v. Mem'l Hosp. at Gulfport, 8 So.3d 175, 180 (Miss. 2009) (quoting Delta Reg'l Med. Ctr. v. Venton, 964 So.2d 500, 504 (Miss. 2007)). Further, unless “a layman [could] observe and understand the negligence as a matter of common sense and practical experience, ” expert testimony is generally required to establish negligence. Smith v. Gilmore Mem'l Hosp., 952 So.2d 177, 180-81 (Miss. 2007) (quoting Coleman v. Rice, 706 So.2d 696, 698 (Miss. 1997)).

Brown cites two records as showing the VAMC committed medical malpractice. The first is his May 26, 2020 visit record where one of his exams showed his lung tumor was “suggestive of recurrent malignancy.” Records [40-1] at 7. And the second is a record that shows the metastasized tumor has had “clear progression in [his] lungs” over the past six months. Records [40-2] at 2. With these records, it seems Brown attempts to show that his lung cancer existed and continued to worsen despite no recorded diagnosis. The VAMC argues in response that it did not fail to diagnose Brown's lung cancer because he does not have lung cancer, but, rather, has kidney cancer that metastasized into his lungs. Resp. [41] at 2.

Even assuming Brown is correct that he has lung cancer and the VAMC should have diagnosed or recorded it, to be entitled to summary judgment, Brown still needs to marshal evidence--like medical expert testimony--that shows the VAMC breached the standard of care and that the lung cancer progressed because of the VAMC's diagnostic or recording mistakes. See Miss. Baptist Med. Ctr., Inc. v. Phelps, 254 So.3d 843, 845 (Miss. 2018) (explaining “[e]xpert testimony is essential in medical malpractice cases” to show “how the required standard of care was disregarded” and that “defendant's ‘failure was the proximate cause . . . of the injury'” (quoting Vicksburg Healthcare LLC v. Dees, 152 So.3d 1171, 1174 (Miss. 2014))). While it appears that Brown has retained an expert, no expert opinions appear in the summaryjudgment record. See Notice of Expert Designation [53].

Generally, breach of duty and causation are questions of fact that must be decided at trial. To decide a question of fact on summary judgment, the movant-in this case Brown-“bears the initial responsibility of . . . demonstrat[ing] the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. Brown has not met that initial burden, so his summary-judgment motion is denied.

III. Motion for Tampering with Witnesses, Victims, or Informants [46]

Brown's next motion seeks sanctions and claims that the VAMC interfered with witnesses related to his then-pending preliminary-injunction motion. Pl.'s Mot. [46] at 1. He says the VAMC talked to his witnesses' families in violation of the Health Insurance Portability and Accountability Act (HIPAA), coerced his witnesses and their families “to make a decision in favor of the dialysis closure transaction, ” and intimidated them. Id. He also says the VAMC “attempt[ed] to draw the Plaintiff's blood without the plaintiff['s] consent on two...