Warden v. US, 90-30-CRT-D.

• Decision Date: 01 September 1993
• Docket Number: No. 90-30-CRT-D.,90-30-CRT-D.
• Citation: 861 F. Supp. 400
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Henry Franklin WARDEN, Jr., Plaintiff v. UNITED STATES of America, Defendant.

861 F. Supp. 400

Henry Franklin WARDEN, Jr., Plaintiff v. UNITED STATES of America, Defendant.

No. 90-30-CRT-D.

United States District Court, E.D. North Carolina, Raleigh Division.

September 1, 1993.

Henry Franklin Warden, Jr., pro se.

Linda Kaye Teal, U.S. Attorney's Office, Raleigh, NC, Richard B. Conely, Sr., Patterson, Dilthey, Clay & Bryson, Raleigh, NC, for U.S.

ORDER

DUPREE, District Judge.

Plaintiff, Henry Franklin Warden, Jr., originally filed two actions pro se based on the same factual allegations, which cases were consolidated by this court. The first was a Bivens action the dismissal of which as against all defendants the Fourth Circuit upheld on appeal. The pending action was brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80 (1965 and Supp.1993), based on the alleged negligent medical treatment given while plaintiff was an inmate at the Federal Correctional Institution at Butner, North Carolina ("FCI-Butner"). It is presently before the court on defendant's motion to dismiss or in the alternative for summary judgment and plaintiff's motion to amend his complaint. Plaintiff has also filed what he has designated as a "request for due process right to consultation prior to the issuance of a scheduling order." All responses and replies have been filed.

I. FACTUAL BACKGROUND AND PRIOR PROCEDURAL HISTORY

In his complaint, plaintiff claims that he sustained an injury on April 10, 1987 while lifting weights at the gym at FCI-Butner, where he was incarcerated. After several complaints and visits to the prison infirmary, plaintiff was sent to Duke University Medical Center ("Duke") for diagnostic tests on August 11, 1987 and was seen by a Dr. Nunley. The diagnostic tests performed at Duke revealed a problem with one of plaintiff's spinal discs, the extent of which is disputed by the parties, but which required surgery around August 15, 1987. In January or February of 1988, plaintiff again saw Dr. Nunley at Duke and at the doctor's recommendation was readmitted to the hospital for testing.

Plaintiff alleges that at this second appointment with Dr. Nunley, another of his spinal discs was found to be ruptured. (Complaint at Para. 30.) Plaintiff further asserts that subsequently a Dr. Perry informed him that he did not consider the problem identified by Dr. Nunley an emergency, and that new fiscal policy of the government required plaintiff to be sent to the United States Medical Center for Federal Prisoners in Springfield, Missouri ("USMCFP-Springfield") for surgery rather than having it performed at Duke immediately. (Complaint at Paras. 31-33.)

Plaintiff was transported on May 5, 1988 from FCI-Butner to FCI at Talladega, Alabama and on May 18, 1988 to FCI at El Reno, Oklahoma and finally to USMCFP-Springfield on May 25, 1988. After this rather tortuous trip to USMCFP-Springfield, the head of neurology, Dr. Puzio, performed several diagnostic, pre-operative tests on plaintiff and discussed surgery as a treatment for plaintiff's current back problem. Surgery was performed on plaintiff at USMCFP-Springfield, and plaintiff alleges at a postoperative briefing, Dr. Puzio indicated he thought the surgery was successful but the only problem that might arise could have been caused by the length of time the nerve under the ruptured disc had been impinged. (Complaint at Para. 41.)

Plaintiff filed a claim with the southeast region of the Bureau of Prisons, which claim was denied sometime between July 27 and August 1, 1989. The current action was filed on January 16, 1990 asserting negligence or malpractice against various staff members of FCI-Butner for failing to diagnose plaintiff's second ruptured disc and act in a timely manner to prevent additional injury to plaintiff. Plaintiff named as defendants in his complaint various "P.A. John Doe's," Dr. Perry, Mr. Ron Hilwig, head of the medical department at FCI-Butner before his transfer to USMCFP-Springfield, Mr. Robert W. Skakun, head of the medical department at FCI-Butner after plaintiff's return from USMCFP-Springfield and Mr. Jack Roach, regional medical designator for the southeast region of the Bureau of Prisons. Plaintiff seeks compensatory damages for disfunction and disfigurement of his left arm and shoulder, for pain and suffering, for past and future mental anguish, for loss of future earning capacity, for future medical rehabilitative expenses, and for lost enjoyment of life.

II. DISCUSSION

A. Defendant's Motion for Summary Judgment

Defendant has moved to dismiss or alternatively for summary judgment. On a motion for summary judgment, a court must grant the motion if the parties' pleadings, depositions, interrogatory answers, admissions and any affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56(c); Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party moving for summary judgment has the initial burden of demonstrating the absence of any material issue of fact, but need not support its motion with affidavits or other materials negating the non-moving party's claim. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553.

Once the moving party meets its initial burden, the non-moving party may not rely upon mere allegations or denials contained in its pleadings, but must come forward with some form of evidentiary material allowed by Rule 56 demonstrating the existence of a genuine issue of material fact requiring a trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. In other words, to withstand a motion for summary judgment, the non-moving party must proffer sufficient evidence on which a reasonable jury could find in its favor. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. In considering the motion, the court must view the facts and inferences to be drawn from the evidence in the light most favorable to the non-moving party to the extent those inferences are reasonable. Matsushita Electrical Industrial Company v. Zenith Radio Corporation, 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986).

Plaintiff brought his claim for medical malpractice pursuant to the FTCA, 28 U.S.C. §§ 2671-80 (1965 and Supp.1993). This court has jurisdiction pursuant to 28 U.S.C. § 1346(b) (1976). Venue is proper pursuant to 28 U.S.C. § 1402 (1976).

Actions brought under the FTCA are governed by the substantive law of the state in which the alleged tort occurred. Shumaker v. United States, 714 F.Supp. 154, 158 (M.D.N.C.1988). The negligence or malpractice alleged by plaintiff occurred in North Carolina, and the parties do not dispute that North Carolina substantive law controls this action. However, federal rules govern procedural questions, such as the summary judgment standard cited above used to determine if plaintiff has presented a genuine issue of material fact on his medical malpractice claim. Id.

Defendant asserts that North Carolina law requires expert testimony to make out a prima facie case for medical malpractice. Thus, defendant argues that plaintiff has failed to raise a genuine issue of material fact on his claims for medical malpractice. The court required the parties to disclose their expert witnesses by May 26, 1993, and plaintiff has identified no expert witnesses to date.

To recover on a medical malpractice claim under North Carolina law, plaintiff must prove three essential elements: (1) the applicable standard of care; (2) defendant's breach of that standard; and (3) defendant's breach caused plaintiff's injury. Shumaker at 158. As a general rule, plaintiff must present expert testimony to make out a prima facie showing for each of these three elements. Id.; Makas v. Hillhaven, Inc., 589 F.Supp. 736, 740 (M.D.N.C.1984) (granting defendant's motion for a directed verdict in medical negligence case because plaintiff did not offer any expert testimony on the standard of care); White v. Hunsinger, 88 N.C.App. 382, 387, 363 S.E.2d 203, 206 (1988) (plaintiff's failure to produce affidavit of medical expert on causation warranted trial court's grant of summary judgment for doctor on medical malpractice claim); Beaver v. Hancock, 72 N.C.App. 306, 312, 324 S.E.2d 294, 298-99 (1985) (upholding grant of summary judgment for defendant doctor because plaintiff failed to produce affidavit of medical experts on medical malpractice claim).

However, North Carolina courts have recognized an exception to the requirement of expert testimony in medical malpractice claims "when the jury, based on its common knowledge and experience, can understand, evaluate, and judge the legal reasonableness of a health care provider's actions." Shumaker, 714 F.Supp. at 159 (quoting Makas, 589 F.Supp. at 740). The limited number of North Carolina courts to apply this exception have discussed it as applying the doctrine of res ipsa loquitur. Tice v. Hall, ...