Opinion
05 Civ. 3388 (JSR) (GWG).
December 8, 2006
REPORT AND RECOMMENDATION
John Doe, an inmate at a Bureau of Prisons ("BOP") facility proceeding pro se, seeks relief against various BOP employees and a doctor who worked under a contract with the BOP (collectively "the Government" or "the defendants"). Doe's claims are based on allegedly improper medical treatment he received. The defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Doe has cross-moved for summary judgment. For the following reasons, the defendants' motion should be granted and Doe's denied.
I. INTRODUCTION
A. Factual Background
In late February 2004, while incarcerated at the Metropolitan Correctional Center in New York City ("MCC"), Doe injured his right knee playing basketball. See Defendants' Local Rule 56.1 Statement, filed August 2, 2006 ("Def. 56.1 Statement") (Docket #35), ¶ 1. He reported the injury to a "recreation specialist," and the next day to his counselor and his Unit Manager, who referred him to a physician's assistant, Gautam Patel. Id. at ¶ 2. Gautam Patel took him to see Dr. Glover, a staff physician at the MCC. Id. at ¶ 3. Dr. Glover took an x-ray "which did not show anything," after which Doe told Dr. Glover that "it felt like I tore something." Id. at ¶ 4. On March 4, 2004, Dr. Glover filled out a diagnostic form and checked a box indicating that any further treatment requiring Doe's transportation outside the prison was "Medically Acceptable But Not Medically Necessary: for the convenience of the inmate."See id. at ¶ 5; Diagnostic Report of Dr. M. Glover, dated Mar. 4, 2004 ("3/4/04 Report") (reproduced at Ex. B to Redacted Complaint, filed Mar. 30, 2005 ("Compl.") (Docket #2)), at 1. On March 11, 2004, Dr. Glover examined Doe again, and this time checked a box indicating that further treatment was "Presently Medically Necessary: treatment that cannot reasonably be delayed without causing further serious deterioration, significant pain or discomfort." See Def. 56.1 Statement ¶ 6; Diagnostic Report of Dr. M. Glover, dated Mar. 11, 2004 ("3/11/04 Report") (reproduced at Ex. B to Compl.), at 2.
At some point following this second visit, Dr. Glover referred Doe to an orthopedist, Dr. Kahanowicz, see Def. 56.1 Statement ¶ 7; 3/11/04 Report at 2, who apparently is not a BOP employee.See Def. 56.1 Statement ¶ 7; Professional Services Agreement, dated Dec. 15, 2003 (reproduced as Ex. B to Memorandum of Law in Support of Defendant's Motion to Dismiss Plaintiff's Complaint, dated July 8, 2005). Dr. Kahanowicz examined Doe and told him to "just exercise" the knee and return in "a few weeks" for a follow-up. Def. 56.1 Statement ¶ 8. After three follow-up visits to Dr. Kahanowicz, Doe's knee was still swollen, which led him to contact Dr. Pradip Patel. Id. at ¶ 9. Dr. Patel told him to see Dr. Kahanowicz again, and that if he was still unsatisfied, Dr. Patel would give him a second opinion.Id. On March 25, 2004, Dr. Patel examined Doe and ordered a magnetic resonance imaging exam ("MRI") on Doe's right knee. See id.; Diagnostic Report of Dr. P. Patel, dated Mar. 25, 2004 (reproduced as Ex. B to Compl.), at 3.
On April 8, 2004, Doe underwent the MRI on his right knee. Def. 56.1 Statement ¶ 10. This procedure revealed a "small subchondral cyst in the femoral condyles, and small cystic area in the inferior patellar attachment" of the right knee. Id. at ¶ 11. Dr. Patel's own notes of the procedure, recorded on May 13, 2004, read as follows: "Reveal bone bruise, mild arthritis [changes], no meniscal abnormalities." Id. at ¶ 12; Diagnostic Report of Dr. P. Patel, dated May 13, 2004 (reproduced as Ex. B to Compl.), at 4.
On July 29, 2004, Doe was still experiencing pain and was referred to an orthopedic surgeon, Dr. Kaplan, who recommended arthroscopic surgery on his knee. See Def. 56.1 Statement ¶ 13. Doe had the surgery on October 13, 2004. Id. at ¶ 14. After surgery, Doe was told he still had "loose chips" and that he might need more surgery. Id. at ¶ 15. The surgeon also prescribed physical therapy, but did "not want to give to[o] much therapy."Id. at ¶ 16.
B. Procedural History
In August 2004, Doe submitted an Administrative Tort Claim to the Office of the Regional Counsel of the BOP, seeking $25,000.See Claim for Damage, Injury, or Death [TRT-NER-2004-04547], dated Aug. 11, 2004 (reproduced as Ex. C to Declaration of Adam M. Johnson, filed Aug. 8, 2005 (Docket #18)). On February 11, 2005, the Northeast Regional Office of the BOP informed Doe it was declining to offer him any payment on this claim. See Memorandum, dated Feb. 11, 2005 (annexed to Compl.).
Doe then brought this action using the form complaint for actions brought under 42 U.S.C. § 1983. He alleges that the defendants did not provide "proper medical treatment in the proper amount of time," and that there was "negligence" on the part of the BOP and its "employees." See Compl. ¶ V (capitalization omitted). He requests damages of $150,000. Id.
In August 2006, defendants Torres, Dr. Glover, Dr. Patel, and Gautam Patel — all of whom are federal employees represented by the United States Attorney's Office — moved to dismiss under Fed.R.Civ.P. 12(b)(1) and (6). See Notice of Motion, filed Aug. 8, 2005 (Docket #16). Dr. Kahanowicz, represented by private counsel, moved to dismiss under Fed.R.Civ.P. 12(b)(6). See Notice of Motion, filed July 8, 2005 (Docket #13). Because it was unclear whether Doe intended to bring a complaint against the various federal employees in their individual capacities underBivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Court issued an order on December 2, 2005 directing Doe to clarify this point. Doe submitted additional allegations, see Plaintiff's Response, dated Dec. 21, 2005, at 1-2, which the Court deemed to supplement Doe's original complaint.
Thereafter, the Court granted in part and denied in part the defendants' motion. See Doe v. Torres, 2006 WL 290480 (S.D.N.Y. Feb. 8, 2006) ("Doe I"), adopted by Order, filed Mar. 9, 2006 (Docket #24). The Court dismissed the claims against all defendants in their official capacities except that it permitted Doe to proceed with a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, 2006 WL 290480, at *4-5. The Court also held that Doe's Bivens claims should be dismissed but granted him leave to replead those claims. Id. at *9. Doe never did so, however.
C. The Instant Motions
1. The Government's Motion for Summary Judgment
On August 2, 2006, the Government moved for summary judgment against Doe. See Notice of Motion, filed Aug. 2, 2006 (Docket #32); Memorandum of Law in Support of Defendants' Motion for Summary Judgment, filed Aug. 2, 2006 (Docket #33) ("Def. Mem."); Def. 56.1 Statement. Included in its motion was the statement required by Local Civil Rule 56.2 informing Doe of the materials he would have to submit in order to oppose the summary judgment motion. See Notice to Pro Se Litigant Opposing Motion for Summary Judgment, filed Aug. 4, 2006 (Docket #36).
Doe filed a response to this motion. See Plaintiff's Reply to Defendants' Motion for Summary Judgment, filed Sept. 7, 2006 (Docket #38). The defendants then filed a memorandum of law in reply. See Reply Memorandum of Law in Further Support of Defendants' Motion for Summary Judgment, filed Sept. 22, 2006 (Docket #39).
2. Doe's Motion for Summary Judgment
On July 11, 2006, Doe filed a document entitled "Plaintiff's Notice of Plaintiff's Motion for Summary Judgment Pursuant to FRCvP 56(a)" (Docket #31). In this document, he asserted that he intended to file motion papers by August 2, 2006. But, inasmuch as he did not do so, we will construe this notice as adopting papers he had filed previously seeking summary judgment. See Plaintiff's Notice of Plaintiff's Motion for Summary Judgment Pursuant to FRCvP 56(a), Plaintiff's Motion for Summary Judgment Pursuant to FRCvP 56(a); Plaintiff's Memorandum in Support of Plaintiff's Motion for Summary Judgment Pursuant to FRCvP 56(a) ("Pl. Mem.") (all filed Apr. 28, 2006, and included in Docket #27). The defendants filed a memorandum of law in response to Doe's motion.See Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment, filed Sept. 1, 2006 (Docket #37).
The Court had not previously considered these papers because they were filed prior to the close of discovery. See Order, dated May 1, 2006 (Docket #30), at 1.
II. LAW GOVERNING SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a genuine issue of material fact exists, "[t]he evidence of the non-movant is to be believed" and the court must draw "all justifiable inferences" in favor of the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). Nevertheless, once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial,'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original), and "may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). In other words, the nonmovant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Where "the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to [its] case." Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S. at 322) (internal quotation marks omitted) (alteration in original). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).
III. DISCUSSION
The defendants contend that in order for Doe to establish a prima facie case of medical malpractice, expert testimony is necessary. See Def. Mem. at 7. Specifically, the defendants argue that Doe's claim "is a quintessential malpractice claim implicating complex medical issues and requiring knowledge beyond the ken of the ordinary juror." Id. at 9. Because Doe has not submitted affirmative evidence in the form of expert testimony as to malpractice, the defendants argue, summary judgment in their favor is appropriate. See id.
Under New York law, which governs this matter, a plaintiff seeking to prove a claim of malpractice must show "a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage." Wicksman v. Nassau County Health Care Corp., 27 A.D.3d 644 (2d Dep't 2006); accord Trimarco v. Klein, 56 N.Y.2d 98, 106 (1982); Suib v. Keller, 6 A.D.3d 805, 806 (3d Dep't 2004). The Second Circuit has held that
A physician's obligations to his patient are to possess at least the degree of knowledge and skill possessed by the average member of the medical profession in the community in which he practices, to exercise ordinary and reasonable care in the application of that professional knowledge and skill, and to use his best judgment in the application of his knowledge and skill. In order to show that the defendant has not exercised ordinary and reasonable care, the plaintiff ordinarily must show what the accepted standards of practice were and that the defendant deviated from those standards or failed to apply whatever superior knowledge he had for the plaintiff's benefit.Sitts v. United States, 811 F.2d 736, 739 (2d Cir. 1987). In other words, proof of medical malpractice ordinarily requires the submission of expert testimony. Id.; accord Grassel v. Albany Med. Ctr. Hosp., 223 A.D.2d 803, 805 (3d Dep't 1996); Fane v. Zimmer, Inc., 927 F.2d 124, 131 (2d Cir. 1991) (quoting Meiselman v. Crown Heights Hosp., 285 N.Y. 389, 396 (1941)). This requirement applies to pro se inmate plaintiffs. See, e.g.,Boomer v. Lanigan, 2002 WL 31413804, at *9 (S.D.N.Y. Oct. 25, 2002). Expert testimony is not required only where a matter is "within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill."Meiselman, 285 N.Y. at 396. Such cases are "rare" and might include for example, with respect to a deviation from accepted practice, a situation "[w]here a dentist has pulled the wrong tooth or where an unexplained injury has occurred to a part of the body remote from the site of the surgery." Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 183, 190 (2d Cir. 2005) (quoting Sitts, 811 F.2d at 740) (internal citations and punctuation omitted).
Doe's case is not one of the "rare" instances where an ordinary juror could conclude either that the defendants departed from accepted practice or that, if there was such a departure, it was a proximate cause of any injury to him. Accordingly, expert testimony is required.
In an apparent effort to meet his obligation to provide such testimony, Doe points to certain medical evidence that he asserts would be sufficient to allow a jury to find in his favor. He notes that on a March 4, 2004 diagnostic form, Dr. Glover stated that further treatment was "not medically necessary," see Pl. Mem. at 2; 3/4/04 Report at 1 (capitalization omitted), but that on a March 11, 2004 report, Dr. Glover stated that treatment was "presently medically necessary" and that it "cannot reasonably be delayed without causing further serious deterioration." See Pl. Mem. at 2; 3/11/04 Report at 2 (capitalization omitted). Doe argues that Dr. Glover's change in his recommendation shows that a "serious deterioration" of his injury resulted from Dr. Glover's failure to treat him initially, on March 4, 2004, with more comprehensive medical care. See Pl. Mem. at 3.
This conclusion, however, is nothing more than speculation. There is no evidence from which a reasonable juror could conclude that Dr. Glover did not act according to accepted medical practice both on March 4 and on March 11. For example, Doe's condition on March 4 might not have indicated the need for further medical treatment whereas his condition on March 11 might have reflected such a need. Moreover, even if Doe had shown the existence of a departure from medical practice, there is nothing in the record from which a reasonable juror could conclude that any deviation was the proximate cause of injury to Doe.
Where evidence offered in opposition to a summary judgment motion by a non-moving party "is merely colorable, or is not significantly probative," summary judgment is inappropriate.Scotto, 143 F.3d at 114. Because nothing in the medical records would allow a reasonable juror to conclude that either of the two elements of a malpractice claim had been proven, Doe has failed to make "a showing sufficient to establish the existence of an element essential to [his] case." Nebraska, 507 U.S. at 590. Accordingly, summary judgment must be granted in favor of the defendants. For the same reasons, Doe's own motion for summary judgment must be denied. Conclusion
Defendants' motion for summary judgment (Docket #32) should be granted and Doe's motion for summary judgment (Docket #31) should be denied. Judgment should be entered dismissing the case.
Without taking a position on whether the complaint states any state law claims against Dr. Kahanowicz, any such state law claims would properly be dismissed as well inasmuch as all federal claims have been dismissed. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).