Reese v. Mino et al

Filing 31

MEMORANDUM OPINION. Signed by Judge Karon O Bowdre on 10/14/2020. (JLC)

FILED
2020 Oct-14 PM 05:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL E. REESE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 2:18-CV-01059-KOB

MEMORANDUM OPINION
This medical malpractice case comes before the court on defendant’s motion for
summary judgment (doc. 25). For the reasons set forth below, the court will GRANT the motion
and enter summary judgment for the United States and against plaintiff Michael Reese.
Factual and Procedural Background
This case arose from a steroid injection that Mr. Reese received in his right wrist at the
Birmingham, Alabama VA Medical Center in April of 2016. (Doc. 26-1 at 10–11; doc. 1 at 5).
Mr. Reese claims that Dr. Matthew Mino failed to properly sterilize the needle before he
administered the injection to Mr. Reese. Mr. Reese also alleges that Dr. Luis Vasconez failed to
supervise Dr. Mino to ensure that he followed the proper protocol for administering the injection.
These failures, Mr. Reese alleges, constituted a breach of the standard of care and led to a
subsequent infection in Mr. Reese’s right wrist at the injection site. (Doc. 26-1 at 10–11).
The May 15, 2020 deadline for expert disclosures under this court’s scheduling order has
come and gone. (Doc. 24 at 2). Mr. Reese has not designated an expert. (See doc. 26-1 at 14–15;
doc. 26-3 at 4). As such, the Government has moved for summary judgment under the Alabama
Medical Liability Act, as applied to the United States through the Federal Tort Claims Act; that

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Act generally requires plaintiffs in medical malpractice cases to employ expert testimony to
prove the breach element of a medical malpractice claim.
Mr. Reese did not respond to the Government’s motion for summary judgment.
Summary Judgment Standard
Although Mr. Reese did not respond to the Government’s motion for summary judgment,
the court will not grant the Government’s motion simply by default. See Trs. of the Cent.
Pension Fund of the Int’l Union of Operating Eng’rs and Participating Emps. v. Wolf Crane
Serv., Inc., 374 F.3d 1035, 1039 (11th Cir. 2004) (“the district court cannot base the entry of
summary judgment on the mere fact that the motion was unopposed but, rather, must consider
the merits of the motion”) (quoting United States v. One Piece of Property, 5800 S.W. 4th Ave.,
Mia., Fla., 363 F.3d 1099, 1101 (11th Cir. 2004)) (alterations omitted).
Instead, the court may grant an unopposed motion for summary judgment if its entry of
summary judgment would be otherwise appropriate under Rule 56, Fed. R. Civ. P. Wolf Crane,
374 F.3d at 1039 (citing One Piece of Property, 363 F.3d at 1101). Under Rule 56, summary
judgment is appropriate “where 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 judgment as a matter of law.” Wolf
Crane, 374 F.3d at 1039 (quoting One Piece of Property, 363 F.3d at 1101; Fed. R. Civ. P.
56(c)).
The court must “view the evidence presented through the prism of the substantive
evidentiary burden” to determine whether a factfinder could reasonably find for the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). And the court must view
all evidence and inferences drawn from the underlying facts in the light most favorable to the

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non-moving party. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.
1999).
Discussion
As stated above, Mr. Reese’s sole cause of action in this case is a medical malpractice
claim brought against the United States through the Federal Tort Claims Act. Under the FTCA,
the federal government “shall be liable…in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 2674. If a private physician in Alabama had
performed the allegedly tortious procedure on Mr. Reese, any claim by Mr. Reese against that
private physician would be governed by the Alabama Medical Liability Act. See Ala. Code § 65-548(a). Therefore, Mr. Reese’s claim against the federal government is likewise governed by
AMLA. See Moore v. Guzman, 362 F. App’x 50, 53 (11th Cir. 2010) (citing FDIC v. Meyer, 510
U.S. 471, 478 (1994)) (“state law is the source of substantive liability under the FTCA”) (internal
quotation marks omitted).
Under AMLA, a medical malpractice plaintiff must prove by “substantial evidence” that
the healthcare provider breached the standard of care. Ala. Code § 6-5-548(a). And “the plaintiff
in a medical malpractice action must ordinarily establish the defendant physician’s negligence
through expert testimony as to the standard of care and the proper medical treatment.” Pruitt v.
Zeiger, 590 So. 2d 236, 237–38 (Ala. 1991) (citing Bates v. Meyer, 565 So. 2d 134, 136 (Ala.
1990)).
The Government has proffered uncontroverted medical expert testimony that “the
procedure for the steroid injection into [Mr. Reese’s] right wrist…[met] the medical standard of
care;” and that “one cannot eliminate the risk of infection even with [the proper procedure] in
place.” (Doc. 26-13 at 5).

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Because Mr. Reese has presented no medical expert evidence of his own to show that
Drs. Mino and Vasconez breached the standard of care, the court finds as a matter of law that he
has not presented “substantial evidence” as to the element of breach. See Pruitt, 590 So. 2d at
238 (“the failure of an expert to establish the standard of care results in a lack of proof essential
to a medical malpractice plaintiff’s case”) (citing Rosemont, Inc. v. Marshall, 481 So. 2d 1126
(Ala. 1985)).
As such, the court concludes that no genuine issue of material fact exists as to whether
Drs. Mino and Vasconez breached the standard of care in treating Mr. Reese; accordingly, the
Government is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 254 (1986).
Conclusion
Because Mr. Reese’s claim fails under AMLA, it also fails under the FTCA. The court,
by contemporaneous order, will therefore GRANT the Government’s motion for summary
judgment (doc. 25) and will ENTER SUMMARY JUDGMENT for the Government and
against Mr. Reese.
DONE and ORDERED this 14th day of October, 2020.

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KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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