Hinton v. United States
| Docket Number | 3:20-cv-00633 |
| Decision Date | 06 June 2023 |
| Parties | MICHAEL A. HINTON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Middle District of Tennessee |
AMENDED REPORT AND RECOMMENDATION [1]
This medical malpractice action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-2680, arises out of pro se Plaintiff Michael A Hinton's treatment at the Tennessee Valley Healthcare System (TVHS) campus in Nashville, Tennessee, which is a United States Veterans Administration (VA) facility. (Doc No. 1.) Hinton, who is diabetic, alleges that TVHS podiatrist Dr. Mark P. Hinkes injured him while trimming a callus on Hinton's foot, that the injury became infected, and that the infection ultimately caused the amputation of Hinton's right leg below the knee. (Id.) Defendant the United States of America filed a motion for summary judgment under Federal Rule of Civil Procedure 56 (Doc. No. 36) supported by a memorandum of law (Doc. No. 37), a statement of undisputed material facts (Doc. No. 39), a transcript of Hinton's deposition testimony (Doc. No. 37-1), an expert affidavit and report (Doc. Nos. 38, 381), and other exhibits including Hinton's medical records (Doc. Nos. 37-2-37-14). Hinton responded in opposition to the United States' motion (Doc. No. 43), and the United States filed a reply (Doc. No. 44). Hinton also filed a surreply accompanied by excerpts from his medical records.[2] (Doc. No. 45.) For the reasons that follow, the Magistrate Judge will recommend that the Court grant the United States' motion for summary judgment.
Hinton served in the United States military from 1986 until 1990.[4] (Doc. No. 39.) He was first diagnosed with Type 2 diabetes in 1991 and experienced diabetic neuropathy in both legs.[5](Id.) In 2010, doctors amputated Hinton's left leg below the knee because of a diabetic infection that began in Hinton's left foot. (Id.) After losing his left leg, Hinton began seeing Dr. Hinkes every three or four months for podiatry care for his right foot. (Id.) From 2011 until 2017, Hinkes treated several calluses and one fissure on Hinton's right foot without incident.[6] (Id.) Hinkes also trimmed Hinton's nails and prescribed compression socks and special shoes to relieve pressure on Hinton's foot. (Id.)
During an appointment with Hinkes on November 6, 2017, Hinton complained of a callus on his right foot. (Id.) Hinkes's treatment notes state that Hinton had developed a “keratosis” on his fifth right toe with a six-centimeter-long fissure.[7] (Doc. No. 37-11, PageID# 435.) The treatment notes state that Hinkes “[t]rimmed the nails and keratosis” and prescribed “Lac Hydrin Lotion[.]” (Id.) The notes do not mention a wound on Hinton's foot or any bleeding. (Doc. Nos. 3711, 39.)
Hinton states that his callus was not open or bleeding before the appointment on November 6, 2017, but that, “when [Hinkes] used a scalpel . . . to cut the . . . dead part off, he went too deep, and it caused it to become a wound” that bled. (Doc. No. 37-1, PageID# 297.) Hinton further states that Hinkes told him “to keep an eye on it to make sure it [did not] get any worse.” (Id. at PageID# 298.) According to Hinton, Hinkes typically used a file on Hinton's calluses, but had used a scalpel to trim a callus with a fissure without any complications on one prior occasion. (Doc. No. 37-1.)
Hinton returned to TVHS on November 21, 2017, for a previously scheduled appointment at the Endocrinology and Metabolism Clinic and an emergency appointment with Hinkes. (Doc. Nos. 37-1, 37-12, 37-13, 39.) Hinton states that the area where Hinkes had trimmed Hinton's callus had “started getting redder, and it started having a little puss and stuff start coming out of it” and that Hinton knew “it was getting infected.” (Doc. No. 37-1, PageID# 304.) Hinkes's treatment notes from November 21, 2017, state that Hinton [8] (Doc. No. 37-12, PageID# 437.) The notes state that Hinkes debrided the wound and sent a tissue sample to the lab for a culture and sensitivity study.[9] (Doc. No. 37-12.) Hinkes also ordered an x-ray; prescribed Hinton antibiotics and a topical cream; provided Hinton with wound dressings and a surgical shoe; and referred Hinton to the TVHS wound clinic. (Id.)
Hinton had two appointments at the wound clinic in December 2017 but the infection worsened, and Hinton was hospitalized in January 2018. (Doc. Nos. 37-1, 39.) Dr. Richard Sieber amputated Hinton's fifth right toe and later amputated Hinton's remaining toes. When the infection remained after these amputations, Hinton agreed to have vascular surgeons amputate his right leg below the knee. (Doc. Nos. 37-1, 39.)
Hinton filed an administrative tort claim with the VA regarding Hinkes's treatment and, after receiving a letter denying the claim, initiated this action by filing a complaint under the FTCA. (Doc. No. 1.) Hinton's complaint alleges that Hinkes's medical negligence caused him to lose his right leg and seeks $1.5 million in damages. (Id.) The Court referred this action to the Magistrate Judge to dispose or recommend disposition of any pretrial motions under 28 U.S.C. § 636(b)(1)(A) and (B). (Doc. No. 3.)
The United States moved to dismiss Hinton's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted, arguing that Hinton did not comply with the Tennessee Health Care Liability Act's (THCLA) requirement that a plaintiff alleging health care liability claims file a certificate of good faith with his or her complaint, Tenn. Code Ann. § 29-26-122. (Doc. No. 9.) The Court denied the United States' motion, finding that the THCLA's certificate-of-good-faith requirement conflicts with the Federal Rules of Civil Procedure and therefore does not apply to actions in federal court. (Doc. Nos. 24, 28.)
The United States has now filed a motion for summary judgment (Doc. No. 36) accompanied by a supporting memorandum of law (Doc. No. 37), a statement of undisputed material facts (Doc. No. 39), the transcript of Hinton's deposition testimony (Doc. No. 37-1), an affidavit and report by Nashville Podiatrist Dr. Jamil Auvy Hossain (Doc. Nos. 38, 38-1), and several other exhibits including excerpts from Hinton's medical records (Doc. Nos. 37-2-37-14). Hinton filed a response in opposition to the United States' motion. (Doc. No. 43.) He did not respond to the United States' statement of undisputed material facts or provide any exhibits to support his response. The United States filed a reply in support of its motion. (Doc. No. 44.) Hinton filed a surreply and attached medical records related to his claims. (Doc. No. 45.)
In resolving a motion for summary judgment, the Court must undertake “the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Under Federal Rule of Civil Procedure 56, a court must grant summary judgment if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing law[,]” and a dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The moving party bears the initial burden of demonstrating that no genuine issues of material fact exist. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its burden, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (citation omitted); see also Blizzard v. Marion Tech. Coll., 698 F.3d 275, 282 (6th Cir. 2012) . The parties “must support” their assertions “that a fact cannot be or is genuinely disputed” by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or, alternatively, by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A)-(B). Courts must view the record evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009). However, if the moving party carries its initial burden, the non-moving party must show more than “[t]he mere existence of a scintilla of evidence in support of” his or her position. Anderson, 477 U.S. at 252. In order to proceed to trial, “there must be evidence on which the jury could reasonably find” for the non-moving party. Id.
This Court's Local Rule 56.01 provides that “any ...
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