United States District Court, W.D. Louisiana, Lake Charles Division
RICO TAYLOR REG. # 90834-071
UNITED STATES OF AMERICA
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is a Motion for Summary Judgment [doc. 44] filed by
defendant the United States of America
(“government”), in response to the claims raised
by pro se plaintiff Rico Taylor under the Federal Tort Claims
Act, 28 U.S.C. § 2671 et seq. The motion is
opposed and has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636.
complains of medical care he received while he was an inmate
in the custody of the Bureau Prisons (“BOP”)
housed at the Federal Correctional Institution at Oakdale,
Louisiana (“FCIO”). These allegations relate to
treatment of nodules in his groin area from October 2013
until December 2014, when he was transferred to another
facility. Doc. 6. A more detailed summary of Taylor's
allegations can be found at this court's amend order from
March 2018. See doc. 8, pp. 1-3. Namely, Taylor
complains about aspects of the treatment he received
(specifically, delays in surgical intervention, oncology
consult, and radiation therapy) for a condition eventually
diagnosed as dermatofibrosarcoma. Doc. 6.
brought suit in this court against the United States under
the Federal Tort Claims Act and against various individual
defendants under Bivens v. Six Unknown Named Agents,
91 S.Ct. 1999 (1971). The court ruled that Taylor's
Bivens claims were prescribed and ordered dismissal
of same. Docs. 12, 14. The government now moves for summary
judgment on the FTCA claims, asserting that Taylor cannot
prevail on his medical malpractice/negligence allegations in
light of his failure to provide an expert opinion. Doc. 44;
doc. 44, att. 2. Taylor opposes the motion, arguing that the
negligence in his case is obvious enough to survive without
supporting expert testimony. Doc. 46, att. 1.
Law & Application
Summary Judgment Standard
should grant a motion for summary judgment when the movant
shows “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
2511 (1986) (quotations omitted). This requires more than
mere allegations or denials of the adverse party's
pleadings. Instead, the nonmovant must submit
“significant probative evidence” in support of
his claim. State Farm Life Ins. Co. v. Gutterman,
896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 106 S.Ct.
at 2511 (citations omitted).
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a
reasonable trier of fact could render a verdict for the
nonmoving party. Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008). Finally, “[a] motion for summary
judgment cannot be granted simply because there is no
opposition, even if failure to oppose violated a local rule,
” and the movant still has the burden of establishing
the absence of a genuine issue of material fact. Hetzel
v. Bethlehem Steel Corp., 50 F.3d 360, 362 (5th Cir.
1995). The nonmovant's failure to file an opposition and
statement of contested material facts, however, requires the
court to deem the movant's statement of uncontested
material facts admitted for the purposes of this motion.
Local Rule 56.2.
Revised Statute § 9:2794 sets out the elements of a
medical malpractice claim under Louisiana law. A plaintiff
must prove: (1) the applicable standard of care; (2) a breach
of that standard of care by the defendant; and (3) that the
plaintiff's injury was a proximate result of that breach.
Id. at § 9:2794(A). Nurses who perform medical
services are subject to the same standard of care as
physicians: to exercise the degree of skill ordinarily
employed under similar circumstances by members of the
profession in good standing in the same community or
locality, and to use reasonable care and diligence, along
with their best judgment, in their application of skill to
the case. Little v. Pou, 975 So.2d 666, 674-75 (La.
Ct. App. 2d Cir. 2008). Injury alone does not create a
presumption of negligence, and the plaintiff has not proven
his case if the harm would have resulted nevertheless. La.
Rev. Stat. § 9:2794(A)(3), (C); Swartzlander v. Hunt
Lab. Inc., 552 So.2d 1339 (La. Ct. App. 5th Cir. 1989).
Expert support is usually required to establish the
applicable standard of care. Schultz v. Guoth, 57
So.3d 1002, 1006-07 (La. 2011). However, an exception is made
where “the negligence is so obvious that a lay person
can infer [it] without the guidance of expert
testimony.” Id. This standard encompasses
cases involving an “obviously careless act, ”
such as amputating the wrong limb or dropping an instrument
in a patient during surgery, as well as failure to attend a
patient “when the circumstances demonstrate the serious
consequences of this failure.” Pfiffner v.
Corea, 643 So.2d 1228, 1233-34 (La. 1994).
support of its motion, the government provides Taylor's
medical records and the following chronology of his care at
FCIO: Taylor first reported three raised areas on his groin
at a sick call on October 21, 2013. Doc. 44, att. 4, pp. 1-2.
At that time he agreed with his provider's plan to
observe the lesions for change. Id. He made another
sick call on January 13, 2014, and it was discovered that the
maximum width of the lesions had increased from .5
centimeters to 1.5 centimeters. Id. at 1-2, 212-13.
The provider, a physician assistant, entered a request for
surgical consult. Id. at 212-13. The consult was
approved on January 15, 2014, to be scheduled with an outside
contractor. Id. at 368. He returned to sick call in
March 2014, complaining that the lesions were causing
discomfort and getting bigger. Id. at 210-11. He was
told to watch for the general surgery appointment and to keep
the area clean and dry. Id. He was approved to see a
specialist on April 21, 2014. Id. at 361. He made
another sick call on June 6, again complaining that the
lesions were increasing in size and causing discomfort.
Id. at 188. He received his general surgery consult
on June 9, and it was recommended that the lesions be removed
“ASAP” due to the risk of cancer. Id. at
355. He was approved for surgery on July 1, and seen at sick
call several times through the summer with complaints that
the lesion was irritating him and getting larger.
Id. at 351, 181-86. Taylor was prescribed pain
medication and antibiotics as a result of these visits.
August 15, 2014, Taylor saw a general surgeon. Id.
at 174-76, 337-38. This provider also recommended immediate
excision and prescribed Tylenol 3. Id. Taylor was
again approved for general surgery on August 20, and the
surgery was performed on August 26. Id. at 162-66,
344-48. As a result, he was diagnosed with a sarcoma and
referred for a surgery consult for a wider excision.
Id. He underwent this procedure on September 4.
Id. at 125, 318-24, 339-43. He received a consult
from an outside oncologist on September 30. Id. at
98. The ...