Kaci C. Myers v. United States

USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 1 of 20

[DO NOT PUBLISH]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 WILSON, LUCK, and JULIE CARNES, 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 Nieves 1 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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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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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

USCA11 Case: 22-12733 Document: 23-1 Date Filed: 09/20/2023 Page: 20 of 20

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.