Smith v. United States

• Decision Date: 29 July 2021
• Docket Number: No. 20-11365,20-11365
• Citation: 7 F.4th 963
• Parties: Stewart J. SMITH, Plaintiff-appellant, v. UNITED STATES of America, Defendant-appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

7 F.4th 963

Stewart J. SMITH, Plaintiff-appellant,

v.UNITED STATES of America, Defendant-appellee.

No. 20-11365

United States Court of Appeals, Eleventh Circuit.

July 29, 2021

Virgil L. Adams, Caroline Whitehead Herrington, Dawn Maynor Lewis, Adams Jordan & Herrington, Macon, GA, for Plaintiff - Appellant

Jennifer Utrecht, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, Charles W. Scarborough, U.S. Attorney General's Office, Washington, DC, U.S. Attorney Service - Middle District of Georgia, U.S. Attorney's Office, Macon, GA, for Defendant - Appellee

Before WILSON, ROSENBAUM and HULL, Circuit Judges.

HULL, Circuit Judge:

In 2018, Mr. Smith, a veteran, initiated this lawsuit in federal district court against the United States, proceeding under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). Mr. Smith claimed, in part, that various medical professionals working for the Department of Veterans Affairs (the "VA") breached their legal duty to exercise ordinary medical care and negligently failed to diagnose his throat cancer

and immediately treat it. The district court granted the government's motion to dismiss Smith's complaint for lack of subject matter jurisdiction. The district court concluded that its judicial review of his claims was precluded by the Veterans’ Judicial Review Act ("VJRA"), 38 U.S.C. § 511(a), which restricts judicial review of "questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans." 38 U.S.C. § 511(a).

After review, and with the benefit of oral argument, we conclude that the district court did lack jurisdiction over some of Mr. Smith's claims, but that it had jurisdiction over his tort claims alleging medical negligence or malpractice. We thus affirm in part and reverse in part the dismissal of Mr. Smith's complaint.

I. SUBJECT MATTER JURISDICTION

All agree that the government's attack on the district court's subject matter jurisdiction is a factual—as opposed to a facial—one. The parties submitted, and the district court properly considered, evidence relevant to the court's jurisdictional inquiry. See Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003) ("In resolving a factual attack, the district court may consider extrinsic evidence such as testimony and affidavits." (citation omitted)). Therefore, in recounting the basic facts, we rely on material outside the operative complaint, including depositions, affidavits, and medical records.

II. VETERANS’ HEALTH CARE

The VA provides medical care to veterans through the Veterans Health Administration ("VHA"). The Secretary of Veterans Affairs (the "Secretary") manages the provision of health benefits to eligible veterans. See Veterans Health Administration, About VHA, https://www.va.gov/health/aboutvha.asp (last accessed July 29, 2021). Dr. Robert Ferris, an expert witness retained by Mr. Smith, testified that the standard of care for medical treatment received through the VA is no different from the standard of medical care that applies throughout the United States.¹ See Anestis v. United States, 749 F.3d 520, 527 (6th Cir. 2014) (noting a veteran's widow's claims of malpractice by VA hospital staff were "based on standards of care that govern medical professionals" generally).

The VA provides medical care to veterans by two means: (1) by providing care directly through the VA's own medical professionals and their supporting personnel; and (2) by paying medical-care providers in the local community outside the VA when veterans need care that cannot be provided within the VA system. See Community Care, Veterans Overview, https://www.va.gov/communitycare/programs/veterans/index.asp (last accessed July 29, 2021).

As to outside treatment, the medical care is arranged through a purchased-care model where the VA must authorize the outside treatment in advance. See 38 U.S.C. § 1703. The VA's approval process for outside care has two components: (1) administrative review; and (2) clinical review. The process begins when a VA provider (such as a doctor) completes, signs, and submits a non-VA care referral through the VA's Computerized Patient Record System. Members of the VA's Care Coordination Team then perform an administrative eligibility review to determine whether to approve the outside care. The administrative review involves determining whether the patient is eligible as a veteran to receive VA benefits.

The VA's Care Coordination Team also performs a clinical review. That clinical review—which cannot occur unless the patient is administratively eligible—concerns whether, for example, the services are available within the VA and whether the outside services are medically necessary. While the eligibility review may be conducted by someone acting in a solely administrative role, the clinical review is conducted often by a nurse, sometimes with the oversight of a doctor. The "referral review process" is complete once the referral is approved or denied.

Here, both the administrative and clinical review were performed by Nurse Nkechi Ekwueme ("Nurse Ekwueme"), who was the VA's Care Coordinator for Mr. Smith. After the outside medical care is approved, another VA employee schedules the appointment with an appropriate outside care provider.

The VA's Care Coordinator has another substantive role in a veteran's medical care. Nurse Karen Rose ("Nurse Rose"), another expert witness retained by Mr. Smith, testified about the functions of a VA nurse care coordinator and whether Nurse Ekwueme acted "within the standard of care for nursing care coordination" throughout Mr. Smith's care.² In particular, Nurse Rose, a registered nurse with VA work experience, opined that one of the primary functions of a VA care coordinator was to "[t]rack and monitor" the patient's medical care and treatments throughout the time he is receiving outside VA care. According to Nurse Rose, Nurse Ekwueme was responsible for, among other duties, managing, coordinating, and monitoring the medical consultation and treatment Mr. Smith received from an outside ear, nose, and throat ("ENT") specialist, Dr. Sanford Duke.³ We now detail Mr. Smith's medical care.

III. MR. SMITH'S CANCER

Mr. Smith is a veteran of the U.S. Army who served during the Vietnam era. In 1972, he was honorably discharged, and, since then, he has received medical care through the VA. Since 2004, Mr. Smith has received medical care at the Carl Vinson VA Medical Center in Dublin, Georgia (the "VA Medical Center"). At the relevant time, Mr. Smith's primary care physician was Dr. Neelima Puppala, an inside VA care provider.

A. October 2013: Emergency Room

On October 24, 2013, Mr. Smith called the nurse triage line at the VA Medical Center and reported severe pain in the right side of his head, particularly behind his ear and eye, accompanied by tongue swelling that caused his speech to be slurred. A VA nurse relayed a message to Dr. Puppala and directed Mr. Smith to the emergency room. That day, Mr. Smith sought care at the Coliseum Medical Center Emergency Department ("ER") in Macon, Georgia. The ER physician, believing Mr. Smith's symptoms were an adverse reaction to Neurontin

, instructed him to stop taking Neurontin and to follow up with his VA physician.

The very next day, October 25, 2013, Mr. Smith contacted Dr. Puppala's office, but he was unable to secure a VA appointment with Dr. Puppala until December 16, 2013—nearly two months later.

B. December 2013–January 2014: Diagnosis and CT Scans

At the December 16 appointment, Mr. Smith reported to Dr. Puppala, his VA doctor, that his tongue had remained dry and swollen since the October 24 ER visit and that the right side of his neck had begun to swell in the weeks prior to this appointment. Dr. Puppala noted the ER evaluation, examined Mr. Smith, and confirmed the right "submandibular gland swelling." Dr. Puppala ordered CT scans

without contrast of Mr. Smith's neck. The VA scans, however, did not occur until over a month later, on January 14, 2014.

Predictably, the January 14 CT scans

showed a tumor in Mr. Smith's throat at the base of his tongue. At that point, the tumor had spread to three lymph nodes in his right neck. According to the VA radiologist's report, the CT scans showed "an enlarged mass or lymph node

" in Mr. Smith's right neck, "abnormally enlarged and irregular appearing lymph nodes" also in his right neck, and "[q]uestionable increased soft tissue density in the right base of [his] tongue."

Dr. Ferris testified that, given the extent of the swelling in Mr. Smith's neck and the undisputed presence of a mass in his neck, there was a "joint duty on the part of the [VA] physician and radiology" teams to get Mr. Smith in for CT scans

"[w]ithin days, a week at the most" of his December 16 visit and to then assess the results quickly to arrive at a diagnosis. According to Dr. Ferris, the urgency of Mr. Smith's condition ought to have been apparent, since "a neck mass in an adult is cancer until proven otherwise."⁴

Dr. Ferris opined that "Mr. Smith had initial symptoms of tongue malignancy in October 2013 and there were obvious findings of his tongue cancer

on the CT scans on January 14, 2014." Dr. Ferris also testified, based on his review of the January 14 CT scans, that Mr. Smith "appeared to be clinical stage IV," given that there were "two or more metastatic lymph nodes" and also "a large tumor at the primary site." Even the VA radiologist noted that the January 14 scans were "worrisome for underlying head and neck malignancy"—cancer.

Despite all this, the VA radiologist, Dr. Matthew Dobbs, only recommended an outside "ENT consultation and visual inspection and possible PET/CT for biopsy of these nodes." Dr. Ferris opined that, "[h]ad Mr. Smith's malignancy been diagnosed in January 2014, as it should have been, it is more likely than not that the malignancy could have been resectable at the time."

Upon receiving the CT scans

on ...