United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGENT UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Dismiss filed by
Defendant, United States of America. (Docket #41.) Pursuant
to Fed.R.Civ.P. 12(B)(1), Defendant USA asks this Court to
dismiss any request for relief made by Ms. Metheney beyond
fifteen thousand dollars ($15, 000.00) for lack of subject
matter jurisdiction, arguing she has failed to prove
intervening facts or newly discovered evidence which would
justify obtaining more relief than stated in her
Factual and Procedural Background.
April 23, 2012, Ms. Metheney obtained a total left ankle
replacement from Dr. Howard Kimmel at the Veterans Affairs
Medical Center in Cleveland, Ohio (“VAMC”) due to
preexisting osteoarthritis. (Complaint at ¶ 7.) Ms.
Metheney had follow-up appointments with Dr. Kimmel on May
24, 2012, June 21, 2012, July 5, 2012, November 29, 2012,
August 14, 2013 and November 26, 2013, during which she
complained of pain, numbness, and problems with the incision,
all of which were indicated complications she acknowledged
prior to surgery. Prior to surgery, Ms. Metheney had also
been warned of the risk that she may require a future ankle
replacement or ankle fusion surgery. (Docket #39-2, Joint
Exhibit B, at pp. 1-8.) Amputation was not a stated risk.
continued pain, Ms. Metheney sought care outside of the VAMC.
On January 16, 2015, Ms. Metheney began treating with Dr.
David Welker in Washington, Pennsylvania. (Docket #40, Joint
Exhibit C.) An x-ray revealed a loose and possibly infected
implant. Dr. Welker offered Ms. Metheney three options: ankle
replacement revision, ankle fusion, or an amputation.
(Id. at p. 4.) Ms. Metheney met with Dr. Welker
again on February 9, 2015 and Dr. Welker noted that the plan
was “to take the total ankle out and at least do a hind
foot fusion nail and a cadaveric implant” and that he
“discussed the risks and benefits of that which clearly
included in that risk is an amputation. She understands that.
She wishes to go ahead and proceed.” (Id. at
p. 14.) He also explained risks of “failure to improve,
” “the need for additional surgery, ” and
other potential complications.
Welker performed the ankle fusion surgery on March 2, 2015.
Ms. Metheney signed a consent form and reviewed the risks and
benefits of the procedure. Between March 12, 2015 and July 8,
2015, Ms. Metheney had five follow-up visits with Dr. Welker,
with Dr. Welker noting during the July 8, 2015 examination
that Ms. Metheney had “very little swelling” and
was “doing great.” Dr. Welker stated, “She
has no complaints of any numbness, tingling or burning; no
complaints of any pain. She is fully weight-bearing on
this.” (Docket #40, Joint Exhibit C at 81.)
20, 2015, 12 days after her July 8, 2015 appointment with Dr.
Welker, Ms. Metheney filed her initial Administrative Claim
for Damage, Injury or Death, Standard Form
95(“Administrative Claim”), with the Department
of Veterans Affairs, seeking $3, 300.00, which she indicated
was the amount of her deductible. On her claim form, Ms.
Metheney explained as follows:
On 4/23/12 Dr. Kimmell at Wade Park VA facility (podiatry)
inserted an artificial ankle (STAR) to replace my arthritic
ankle. When I first saw my Xray, I stated to Dr. Kimmell that
it is crooked. He said no it isn't, but I disagreed. He
assured me it was fine. I continued to question the placement
of the replacement. Over the next three years, I grew
progressively worse. I became unable to walk without
assistance or a device. I continued to ask the VA Drs. to
please look at my new ankle. Without Xray or further exam,
they at Wade Park continued to make braces, devices support
wraps, special shoes, etc. I continued to tell them it is
crooked. I showed them how the devices were wearing to the
outside as my foot was being thrown to the outside. After
about a year and half, I changed Drs, still within the VA.
Again, the 2nd VA Dr. said we will make a wedge,
to force my ankle back in line. I became worried and sought
At this point my ankle was completely swollen, and too
painful to walk, I was extremely fatigued and my system was
suffering having fought the damage in my ankle for so long. I
had to stop all every day activities, and my quality of life
On Feb. 2015, I went to Washington PA to Washington Advanced
Orthopedics. Dr. Welker advised the device must be removed as
it was tearing up the ankle and he was concerned about
infection in the bone. The device had torn up the tissue
around my ankle and the tibea bone was damaged.
Dr. Welker was concerned that I may, at this point, lose my
foot above the ankle. I under went extensive testing trying
to make sure there was no infections.
I was constantly traveling 2 ½ hours to have my ankle
On March 2, 2015, Dr. Welker removed the device, and I
underwent major surgery to correct the damage from the (STAR)
Once again, I am in a wheelchair and on crutches for 3
Dr. Welker cut the inside bone off (of the tibia) as it was
damaged. He inserted a cadaver bone into the joint about
2" high. He cut the fibula and pinned it against the
cadaver bone in hopes to help it adhere and feed the blood
supply. He also drove a rod thru my heel and into the tibea
about half way up. Secured all areas with 6 screws. We still
have to wait to see if my ankle will accept the cadaver bone.
If it does not, I will still lose my foot above the ankle.
From the first day of corrective surgery, 3/2/15, my ankle
feels better, even tho [sic] I have a ways to go, and my
system is recovering.
That being said, if only the VA Drs. would have helped me or
admitted the device was crooked, I wouldn't be going thru
this and the worry of losing my foot, not to mention the loss
of quality of life.
I am attaching files, Xrays, and information I have to show
progression over the past 3 years.
I wish my co-payments reimbursed. I am unsure of the amounts
exactly. The bills are still coming in. I will submit what I
have thus far.
I can also make available as many witnesses as you desire.
Please consider refund for my co-pay thru Champ VA. I am
currently making payments and trying ...