Opinion
C.A. No. 01-422 ML
June 2, 2003
Scott P. Tierney, Esq., Appellant Counselors.
James R. Lee, Esq., Parisa D. Beers, Esq., Jay M. Elias, Esq., Michael B. Grant, Esq., Appellee Counselors.
Report and Recommendation
Plaintiff Frank Bertram, an inmate incarcerated at the Adult Correctional Institution ("ACI"), Cranston, Rhode Island, filed a Complaint pursuant to 42 U.S.C. § 1983 and named as defendants numerous employees and officials at the Rhode Island Department of Corrections ("RIDOC") and the Connecticut Department of Corrections ("CDOC"). This matter is currently before the Court on the motion of defendant Dr. Anne Spaulding, the Medical Director at the RI DOC, for summary judgement on plaintiff's medical malpractice claims, which are also asserted in the plaintiff's Section 1983 Complaint. The plaintiff, through counsel, has objected.
This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend Dr. Spaulding's motion for summary judgment be granted on plaintiff's medical malpractice claims.
Background
In considering a motion for summary judgement, the Court must view the evidence in the light most favorable to the nonmoving party. Viewing the evidence in that manner, the undisputed facts of this case, unless otherwise indicated, are as follows:
In 1989, the RI DOC legally began confining the plaintiff, Frank Bertram, at the ACI in Cranston, Rhode Island. Following the plaintiff's participation in a riot, the RI DOC transferred the plaintiff to the CDOC, to be confined in one of their facilities.
For inmates in the custody of the RIDOC but housed at out of state confinement facilities, it is the practice and policy of the RIDOC to require the out of state confinement facility to seek written authorization before providing non-routine, non-emergency medical care to Rhode Island inmates. The responsibility for providing authorization rested with Dr. Spaulding.
While incarcerated at the CDOC, plaintiff began experiencing some medical problems. He reported these problems to the medical staff at the CDOC and treatment was rendered. However, a doctor at the CDOC on two occasions requested approval from the RIDOC for a neurological consultation of the plaintiff. No approval was forthcoming. Plaintiff was instructed by the CDOC that the RIDOC refused to approve any more of the plaintiff's treatment because they did not want to pay for it. Plaintiff was thereafter transferred back to the ACI.
When he returned to the ACI, a RIDOC physician examined the plaintiff and requested approval of a neurological consultation. Still, a neurological consultation was not forthcoming. In December of 2001, a different RIDOC physician examined the plaintiff and requested a neurological examination, on an urgent basis. Finally, after being requested as necessary by three different physicians at two different confinement facilities over the course of a year, plaintiff was seen by a neurologist in January 2002. It was discovered that the plaintiff had a cyst on his spine, which had been there for the past year and a half. The neurologist informed the plaintiff that surgery at this point might not be an option. Nonetheless, plaintiff had surgery to decompress the cyst.
Plaintiff brought suit seeking relief, essentially claiming that the intentional denial of the neurological consultation, after being requested as necessary by the prisons' physicians, violated his Eighth and Fourteenth Amendment rights. Plaintiff also asserted a claim of medical malpractice against Dr. Spaulding.
Dr. Spaulding has now moved for summary judgement solely on the medical malpractice claim, contending that plaintiff has failed to secure expert testimony, and thus, this claim can not proceed to trial. Plaintiff, through counsel, filed an objection to Dr. Spaulding's motion but failed to demonstrate that he possesses any evidence to sustain a medical malpractice claim.
Discussion
Summary judgement's role in litigation is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial". Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). Summary judgment can only be granted when "the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Rule 56 has a distinctive set of steps. When requesting summary judgement, the moving party must "put the ball in play, averring `an absence of evidence to support a nonmoving party's case.'" Garside, 895 F.2d at 48 (quoting Celotex v. Catrett, 477 U.S. 317, 325 (1986)). The nonmovant then must document some factual disagreement sufficient to deflect brevis disposition. Not every discrepancy in the proof is enough to forestall summary judgment; the disagreement must relate to some issue of material fact. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-248 (1986).
On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion. See id. at 256-257. This evidence "can not be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a fact finder must resolve at an ensuing trial." Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989). Evidence that is merely colorable or is not significantly probative cannot deter summary judgment. Anderson, 477 U.S. at 256-257.
Here, Dr. Spaulding has moved for summary judgment on plaintiff's medical malpractice claim contending that the plaintiff has no evidence to sustain this claim. In medical malpractice actions, the plaintiff must establish the appropriate standard and a deviation therefrom by presenting competent medical expert testimony. Wilkenson v. Vesey, 295 A.2d 676 (R.I. 1972). Here, plaintiff failed to secure an expert to testify. Plaintiff asserts, however, that "he may still disclose an expert to testify on his behalf." Plaintiff's opportunity to identify an expert expired on December 24, 2002, when discovery closed in this case.
Plaintiff has failed to identify an expert to testify on his behalf, and failed to otherwise demonstrate that he possesses any evidence of the appropriate standard of care, any evidence indicating a deviation from the standard of care, or any evidence demonstrating causation. Schenck v. Roger Williams General Hospital, 382 A.2d 514, 516 (R.I. 1977); Boccasile v. Cajun Music Limited, 694 A.2d 686, 690 (R.I. 1997). Without demonstrating that he possesses such evidence, plaintiff's medical malpractice claim can not go forward. Accordingly, Dr. Spaulding's motion for summary judgment should be granted on plaintiff's medical malpractice claim. I so recommend.
Conclusion
For the reasons stated above, I recommend that Dr. Spaulding's motion for summary judgement be granted on plaintiff's medical malpractice claim. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).