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Taylor v. United States

United States District Court, W.D. Louisiana, Lake Charles Division

April 23, 2019

RICO TAYLOR REG. # 90834-071
v.
UNITED STATES OF AMERICA

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         I. Background

         Taylor 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.

         Taylor 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.

         II. Law & Application

         A. Summary Judgment Standard

         A court 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.

         If the 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).

         A court 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.

         Louisiana 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).

         B. Application

         In 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.[1] 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. Id.

         On 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 ...


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