Johnson v. United States

Full title: JAMES ELLIS JOHNSON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Court: UNITED STATES DISTRICT COURT Northern District of California Oakland Division

Date published: Oct 13, 2011

No. C 10-00647 LB (N.D. Cal. Oct. 13, 2011)

Opinion

No. C 10-00647 LB

10-13-2011

JAMES ELLIS JOHNSON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

LAUREL BEELER

ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER

FORFEITING DEFENDANT'S RIGHT TO FILE A SUMMARY JUDGMENT

MOTION AND THAT DEFENDANT PAY 20% OF PLAINTIFF'S

MEDICAL BILLS NOT COVERED BY MEDICARE

Plaintiff James Johnson brought this medical malpractice action against defendant United State (the "Government") under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80. Complaint, ECF No. 1.¹ He alleges that he underwent surgery at the United States Department of Veterans Affairs ("VA") Medical Center in San Francisco, California on December 19, 2005 and was discharged two days later. Id. ¶¶ 8-9. Two days was too soon, he says, and as a result, he suffered injury. Id. ¶11.

1 Citations are to the Electronic Case File ("ECF") with pin cites to the electronic page number at the top of the document, not the pages at the bottom.

Mr. Johnson has now filed a motion requesting that the court (1) "forfeit" the Government's right to file a motion for summary judgment and (2) order the Governmeno pay the 20% of his medical bills that Medicare does not cover. Motion, ECF No. 83. In support of his motion, Mr. Johnson contends that the Government has engaged in a conspiracy to prevent him from obtaining medical records that he plans to use with respect to an upcoming expert report.² See id. The Government has, according to Mr. Johnson, informed his doctors who are not affiliated with the VA that it would not pay for his medical care outside of the VA system on a fee basis. See id at 2-4. As a result, he has to pay for his "outside" medical treatment through Medicare, which only covers 80% of the costs. Id at 2. In addition, the Government somehow has "undermined" his ability to get the medical information he needs. Id. at 3.

2 Previously, this court continued the deadlines for this case because Mr. Johnson needed additional time to conduct discovery. Order, ECF No. 80. Discovery is ongoing, and the current expert discovery deadline is November 3, 2011. Id.

As the Government points out in opposition, Mr. Johnson has failed to provide admissible facts in support of his "conspiracy" claim or cite any law in support of the extraordinary relief he seeks.³Opposition, ECF No. 84. Indeed, Mr. Johnson's motion, which he signed under penalty of perjury, is replete with hearsay and unsubstantiated, conclusory statements. See, generally, Motion, ECF No. 83. Moreover, even if the Government no longer will pay for his "outside" medical care on a fee basis (although Mr. Johnson has submitted no evidence on this point), the court is at a loss to understand how this would prevent Mr. Johnson from obtaining discovery.

3 Either in lieu of or perhaps as a reply, Mr. Johnson filed a document containing brief descriptions of various federal cases in which plaintiffs were awarded medical damages. Response, ECF No. 85. None of these cases, though, relate to or support Mr. Johnson's request that the court deny the Government its right to file a motion for summary judgment or order the Government to pay 20% of his "outside" medical bills.
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Under the circumstances and the record before it, the court refuses to grant either of Mr. Johnson's requests. His motion is DENIED.

This disposes of ECF No. 83.

IT IS SO ORDERED.

LAUREL BEELER

United States Magistrate Judge