Fernandez v. United States, Case No. 4:19-cv-113-RH/MJF

Decision Date04 June 2020
Docket NumberCase No. 4:19-cv-113-RH/MJF
PartiesRICARDO JOSE FERNANDEZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
CourtU.S. District Court — Northern District of Florida
REPORT AND RECOMMENDATION

This matter is before this court on Defendant's motion for summary judgment. (Doc. 18). Plaintiff responded. (Docs. 22 & 23). Defendant replied, (Doc. 24), and Plaintiff filed two sur replies without having obtained permission from the court. (Docs. 25 & 28). For the reasons set forth below, the undersigned recommends that Defendant's motion for summary judgment be granted.1

I. Background

On March 5, 2019, Plaintiff commenced this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80, alleging that medical providers at hospitals run by the Department of Veteran's Affairs ("VA") negligently providedmedical care. Specifically, Plaintiff alleges that VA physicians and nurses prescribed and treated Plaintiff with medications known as "beta blockers" and "ACE inhibiters,"2 despite Plaintiff informing these individuals that he was allergic to these drugs. Plaintiff alleges that this resulted in substantial damage to his heart. (Doc. 7 at 3-4).

On December 10, 2019, the undersigned issued a final scheduling order setting March 31, 2020, as the discovery deadline and setting a deadline to file dispositive motions twenty-one days thereafter. (Doc. 17). Additionally, the undersigned set January 15, 2020, as the deadline for Plaintiff to disclose his expert witnesses. (Id.). Plaintiff did not disclose any expert witnesses on or before that deadline. On January 30, 2020, Defendant informed Plaintiff that it intended to move for summary judgment. (Doc. 18 at 1). On February 4, 2020, Plaintiff provided Defendant a document titled "Expert Witness Writte [sic] Report" that identified Plaintiff as his sole expert witness. (Doc. 18-1). Plaintiff's expert disclosure is one page of text and it merely summarizes Plaintiff's medical treatment from May 5,2007, through September 13, 2016. (Id.). This expert disclosure notes the type of medication that Plaintiff was prescribed, the physicians who prescribed the medications and the dates on which they did so, how Plaintiff felt after taking the medication, and the places Plaintiff sought treatment. (Id. at 2). On February 5, 2020, Defendant filed its "Motion to Strike Expert Disclosures and for Summary Judgment." (Doc. 18).

II. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure states that a "court shall grant summary judgment if 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(a). A "genuine" dispute 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); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). An issue of fact is "material" if it could affect the outcome of the case. Anderson, 477 U.S. at 248; Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995).

When addressing a motion for summary judgment, a court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Hickson, 357 F.3d at 1260 (quoting Anderson, 477 U.S. at 251-52). At "the summaryjudgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S at 249. A "scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry . . . asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict . . . ." Id. at 252. In evaluating a summary judgment motion, all "justifiable inferences" must be resolved in the nonmoving party's favor so long as there is a genuine dispute as to those facts. Beard v. Banks, 548 U.S. 521, 529 (2006); see Scott v. Harris, 550 U.S. 372, 380 (2007).

III. Discussion

Defendant argues that Plaintiff has failed to create a genuine issue of material fact with respect to his FTCA claim. (Doc. 18 at 7).

The Federal Tort Claims Act was "designed to provide redress for ordinary torts recognized by state law." Stone v. United States, 373 F.3d 1129, 1130 (11th Cir. 2004) (quoting Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001)). Under the FTCA, the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances," applying the applicable state law. See 28 U.S.C. § 2674; Turner ex rel. Turner v. United States, 514 F.3d 1194, 1203 (11th Cir. 2008). Thus, when addressing an FTCA claim, courtsmust apply the law of the state where the alleged tortious act occurred. Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015); Duque v. United States, 216 F. App'x 830, 832 (11th Cir. 2007); Stone, 373 F.3d at 1130. Here, Plaintiff alleges that, in Florida, VA physicians and nurses treated Plaintiff with medication that damaged his heart. (Doc. 7 at 3-4). Therefore, Florida tort law applies to Plaintiff's claim.

Florida Statute § 766.106(1)(a) defines a claim for "medical negligence" or "medical malpractice" as "a claim arising out of the rendering of, or the failure to render, medical care or services." J.B. v. Sacred Heart Hosp., 635 So. 2d 945, 948-49 (Fla. 1994). To establish a claim for medical negligence in Florida, a plaintiff must establish: (1) the standard of care owed by the defendant; (2) the defendant's breach of the standard of care; and (3) that the breach proximately caused the damages claimed (i.e., that the damages were the direct result of the medical care or treatment). Gooding v. Univ. Hosp. Bldg. Inc., 445 So. 2d 1015, 1018 (Fla. 1984); see Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001); Saunders v. Dickens, 151 So. 3d 434, 441 (Fla. 2014).

Here, Plaintiff did not offer evidence sufficient to create a genuine issue of material fact regarding: (1) the standard of medical care; (2) breach of the standard; and (3) proximate causation.

A. Failure to Create a Genuine Issue as to The Standard of Care

Section 766.102, Florida Statutes, defines the standard of care for medical malpractice claims as "that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." Fla. Stat. § 766.102(1); Saunders, 151 So. 3d at 441. That is, a doctor must "provide the care that a reasonably prudent physician would provide." Saunders, 151 So. 3d at 441. Generally, a plaintiff must provide expert testimony to establish the prevailing professional standard of care. Lambert v. United States, 198 F. App'x 835, 839 (11th Cir. 2006); Bush v. United States, 703 F.2d 491, 495-96 (11th Cir. 1983); Pate v. Threlkel, 661 So. 2d 278, 281 (Fla. 1995).3

Plaintiff has not submitted an affidavit or deposition testimony from a medical expert regarding the standard of care that applied in his case. His expert disclosure report pursuant to Rule 26(a)(2)—which Defendant has moved to have stricken—identified only Plaintiff as an expert witness. The disclosure also was only one pageof text, and it merely summarizes Plaintiff's medical treatment from May 5, 2007, through September 13, 2016. (Doc. 18-1 at 2). That document clearly does not create a genuine issue of material fact regarding the standard of care that the VA owed to Plaintiff.

Plaintiff subsequently filed a "rebuttal," which could be construed as a supplemental expert disclosure. (Doc. 22). In this "rebuttal," Plaintiff included the following opinions:

"It is my opinion that Dr. Sahlin should not have continue to prescribe Mr. Fernandez with beta blockers";
"It appears that Mr. Fernandez had a allergic reaction to the new medication which was a (beta blockers)";
"It appears that Mr. Fernandez was prescribed medication that would do more harm than good";
"It appears do to the overwhelmingly amount of beta blockers, Ace inhibitors. That Ricardo Fernandez was prescribed caused Mr. Fernandez to have 40 TO 50% of his heart left";
"This tells me that Dr. Dragstedt. Was definitely aware of beta blockers and patient's intolerance to them there is no denying this. And for the Dr. to continue to prescribe beta blockers to Mr. Fernandez. As well as prescribe beta blockers for the following day. It is definitely in adequate care it is my opinion that Dr. Carl A. Dragstedt should have stopped completely prescribing beta blockers"; and
"This tells me because of the beta blockers that Ricardo Fernandez had been receiving for today head lowered his blood pressure to low to where cause his heart to drop a another 20%."

(Doc. 22 at 2-10) (typographical and grammatical errors in original). This document also is insufficient to create a genuine issue of material fact regarding the standard of care. It does not indicate the applicable standard of care, but even if it did, Plaintiff has not shown that he has sufficient expertise to offer an admissible opinion regarding the standard of care that a physician owes to a patient.

In a FTCA case, courts first apply the forum state's rules to determine a witness's competence to testify. Fed. R. Evid. 601; Dutton v. United States, 621 F. App'x 962, 966 (11th Cir. 2018); Liebsack v. United States, 731 F.3d 850, 855-56 (9th Cir. 2013); Legg v. Chopra, 286 F.3d 286, 291 (6th Cir. 2002). Florida law provides that in a medical malpractice action, in addition to other qualifications, a "person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health...

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