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Metheney v. United States

United States District Court, N.D. Ohio, Eastern Division

September 1, 2017




         This 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 Administrative Claim.

         I. Factual and Procedural Background.

         On 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.

         Due to 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.

         Dr. 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.)

         On July 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 outside assistance.
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 changed drastically.
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 tended to.
On March 2, 2015, Dr. Welker removed the device, and I underwent major surgery to correct the damage from the (STAR) original device.
Once again, I am in a wheelchair and on crutches for 3 months.
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 ...

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