Laird v. USA
FINDINGS OF FACT AND CONCLUSIONS OF LAW: Bobby Laird is unable to prove that the BOP violated the applicable standard of care or that the BOP's actions were the proximate cause of his injuries, and judgment is entered in favor of the United States. Signed by Chief Judge Brian S. Miller on 7/27/2016. (kdr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
CASE NO. 2:13CV00119 BSM
UNITED STATES OF AMERICA
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case was tried to the bench on January 11, 2016. As a preliminary matter, the
United States’ motion on partial findings under Federal Rule of Civil Procedure 52(c) is
denied. Having listened to the testimony and reviewed the exhibits introduced into evidence,
judgment is entered in favor of the United States.
This case involves a federal prisoner, Bobby Laird, who sued the United States under
the Federal Tort Claims Act for delaying medical treatment. At trial, the government
admitted that Laird needed an additional surgery, and stated that the Bureau of Prisons had
begun taking steps to obtain this surgery for Laird. It was known at trial that Laird would be
released from prison on June 8, 2016, and it was requested that this order be held in abeyance
until the government confirmed that Laird would receive the surgery before being released.
This order was held in abeyance so that the findings and conclusions herein would not weigh
in any way on the Bureau of Prisons’s decision to either provide the surgery or not provide
the surgery. Sadly, Laird was released from prison on June 8, 2016, without having received
I. FINDINGS OF FACT
Bobby Laird was incarcerated in the Federal Correction-Camp in Forrest City,
Arkansas, which is operated by the Federal Bureau of Prisons (“BOP”), until his release on
June 8, 2016. Beginning on January 24, 2011, Laird began to complain to BOP medical care
providers about left shoulder pain. BOP provided Laird with steroid injections, and Laird was
instructed to follow up as needed. Laird returned to the health services clinic on April 12,
2011, and an X-ray was ordered, which showed mild degenerative changes to his left
shoulder. On May 11, 2011, Laird was seen by Dr. Bret Sokoloff, an outside orthopedic, who
diagnosed Laird with arthritis in his spine, a possible rotator cuff tear, mild arthritis in his left
shoulder, and possibly adhesive capsulitis or frozen shoulder. Dr. Sokoloff injected a steroid
into Laird’s left shoulder and ordered an MRI, which was conducted on July 18, 2011.
Laird was treated by Dr. Sokoloff again on July 20, 2011, March 27, 2012, and June
27, 2013. Between his visits with Dr. Sokoloff, Laird was treated by BOP medical providers
who gave him steroid injections and anti-inflammatory medication as needed. In addition to
the July 18, 2011, MRI of the left shoulder, all tests ordered by doctors were approved,
including a cervical MRI on November 17, 2011, which showed multi-level degenerative
disc disease; an EMG on March 29, 2012; an MRI on October 23, 2013; and an arthrogram
on February 27, 2014, showing what was believed to be a full rotator cuff tear.
At trial, Dr. Martin Tindel, the clinical director of the Forrest City Federal
Correctional Institution, testified that there is a process to obtain any testing or treatment not
offered at Forrest City. First, any test or procedure must be approved by the clinical director
at Forrest City, and then a third party scheduling company, NaphCare, is in charge of
scheduling the test or procedure. Some tests and procedures, such as an MRI, need additional
approval from the Regional Medical Director before being scheduled by NaphCare.
NaphCare will then schedule the test or procedure with the outside specialist and report the
date back to Forrest City, and then correctional services will transport the inmate on that
appointed day. Importantly, officials at Forrest City are not responsible for scheduling the
consultation date; that task is reserved for NaphCare.
Specifically, the delay in obtaining two tests requested by Dr. Sokoloff are at issue:
an EMG and an MRI. The EMG was obtained nearly a year after being ordered, and the MRI
was obtained almost fifteen months after being ordered.
First, as to the EMG, Dr. Sokoloff requested this test on February 27, 2014, after
seeing Laird that day. In Laird’s medical records, Dr. Sokoloff noted, “Please
consider/arrange repeat EMG to rule out other source of weakness and numbness. Schedule
left shoulder arthroscopy and rotator cuff repair with distal clavicle excision and
acromioplasty after EMG completed and forwarded to office.” This request was received by
medical officials at Forrest City on April 10, 2014, and on April 16, 2014, a physician’s
assistant ordered the test to be conducted, noting that the test should be completed “as soon
as possible.” This test was approved by the acting clinical director at the time on April 17,
2014, and sent to NaphCare for scheduling on April 21, 2014. The test was initially
scheduled for May 8, 2014, but on that date, the trip was cancelled by correctional services
due to staffing issues. The escort staff scheduled to take Laird had to take a different inmate
due to an emergency, and no other staff was available to take Laird. Laird’s EMG went back
to NaphCare to be rescheduled for a different date.
On January 27, 2015, Dr. Tindel, the new clinical director at Forrest City, discussed
Laird’s treatment with Dr. Sokoloff and the need for more tests since Laird already had a
number of tests performed. Dr. Sokoloff told Dr. Tindel that Laird’s symptoms now indicated
a potential neurological issue and that an EMG and MRI were needed. The EMG was
obtained on February 19, 2015, and Laird underwent surgery on his left shoulder on April
2, 2015. During this surgery, Dr. Sokoloff performed a subcromial decompression of Laird’s
left AC joint but did not repair the left rotator cuff because the rotator cuff was not fully
severed, as initially believed. Dr. Sokoloff testified that Laird received some relief from the
decompression but not total relief because his pain is also caused by cervical nerve root
As for the second test, Dr. Sokoloff ordered a repeat cervical MRI on April 16, 2014.
A physician’s assistant reviewed Dr. Sokoloff’s recommendation on April 16, 2014, and
ordered the MRI to be conducted. The acting clinical director approved the test on April 17,
2014, and sent the request to the regional medical director, who approved the test on May 6,
2014. The MRI was performed on August 12, 2014, and the BOP received the results on
September 22, 2014. For reasons unknown, the results of this test were never sent to Dr.
Sokoloff. After Dr. Tindel spoke to Dr. Sokoloff about Laird’s treatment on January 27,
2015, another MRI was scheduled for February 23, 2015, but that trip was cancelled due to
inclement weather. After performing the shoulder surgery on April 2, 2015, Dr. Sokoloff
again requested a repeat cervical MRI. Laird was seen at health services in June 2015 by Dr.
Capps, who requested another MRI of the cervical spine. On July 9, 2015, the BOP sent
Laird for a cervical MRI, which showed nerve root compression.
After reviewing this MRI with Laird on July 28, 2015, Dr. Sokoloff believed that
Laird needed to see a neurosurgeon for a decompression fusion procedure. Dr. Tindel
approved this request on July 30, 2015, and the regional medical director approved the
request on October 21, 2015. Laird saw Dr. James Feild, an outside neurosurgeon on
December 21, 2015, who recommended surgery. After re-examining Laird on May 16, 2016,
Dr. Feild decided based on Laird’s symptoms that surgery was not appropriate at that time,
and Laird was released from prison on June 8, 2016, without having received the
decompression fusion surgery.
II. CONCLUSIONS OF LAW
Judgment is entered in favor of the United States because Laird has failed to prove
that the BOP breached the applicable standard of care or that any failure on the BOP’s part
was the proximate cause of Laird’s injuries. Because this case has been brought under the
Federal Tort Claims Act, the law of the state where the alleged tort took place applies, which
is Arkansas. 28 U.S.C. § 1346(b) (2012); Glorvigen v. Cirrus Design Corp., 581 F.3d 737,
743 (8th Cir. 2009). In an action for medical injury under Arkansas law, the plaintiff “must
prove the applicable standard of care, that the medical provider failed to act in accordance
with that standard, and that such failure was a proximate cause of the plaintiff’s injuries.”
Webb v. Bouton, 85 S.W.3d 885, 891 (Ark. 2002). Usually, the plaintiff is required to prove
these three elements by expert testimony, but an expert is not required in every case. Ark.
Code Ann. § 16-114-206(a) (requiring an expert only “when the asserted negligence does not
lie within the jury’s comprehension as a matter of common knowledge”). Because the
asserted negligence is a delay in treatment, it has already been determined that expert
testimony is not required. See Doc. No. 73; see also Lanier v. Trammell, 180 S.W.2d 818
Applicable Standard of Care / Breach
Because expert testimony is not required, “Arkansas law determines the standard of
care required of the doctors and the Infirmary. Under that law: a physician is required to
possess and exercise that degree of skill and learning possessed and exercised by members
of his profession or specialty in the same or similar communities.” Jeanes v. Milner, 428 F.2d
598, 601 (8th Cir. 1970) (citing McClellan v. French, 439 S.W.2d 813 (Ark. 1969)). The
applicable standard of care is easy to infer in these “common sense” cases. See Scales v.
Jonak, No. 5:05CV00223 JWC, 2006 WL 3327952 (E.D. Ark. Nov. 15, 2006) (“The
distinction seems to turn on whether medical knowledge, training, or expertise is necessary
when addressing the alleged medical negligence, as opposed to merely common sense.”); see
also Rogers v. Sargent, 2010 Ark. App 640U, 2010 WL 3783696 (leaving a surgical sponge
inside of a patient during surgery invokes a common sense analysis); Lanier, 180 S.W.2d at
819 (failing to sterilize instruments and wash hands before surgery invokes a common sense
analysis). As for the applicable standard of care in this case, Dr. Sokoloff stated that the
standard of care for obtaining the repeat EMG and MRI testing would be “probably four
months or so.” Sokoloff Dep. 23:14. Although the United States has consistently objected
to any standard of care propounded by Dr. Sokoloff, this argument is moot, as Laird is unable
to prove that the United States breached its duty to provide medical treatment to Laird in a
The asserted negligence here, as it has been since Laird originally filed his complaint
in 2013, is a delay in treatment. Even though it took the United States nearly a year to obtain
the EMG test and almost fifteen months to obtain the MRI test, the United States did not
breach the applicable standard of care because it did what a reasonable healthcare facility
would do: it approved and ordered tests and made sure that Laird’s medical issues were being
When considering a breach, the fact that a delay occurs does not automatically impose
liability upon the defendant. Cf. Rogers, 2010 WL 3783696, at *3 (“Neither the Medical
Malpractice Act nor our case law provides that the mere presence of a foreign object in a
surgical patient establishes liability on the part of the surgeon as a matter of law.”). In
Rogers, a patient sued a doctor for medical malpractice after a surgical sponge was left inside
the patient during a gallbladder surgery. Id. at *1. Because the evidence showed that it was
reasonable for the doctor to rely on the nurses’ sponge count to be correct, the court held that
“a jury could reasonably find that, despite leaving a sponge in [the patient’s] abdomen, Dr.
Rogers was not negligent in doing so.” Id. at *3. Rather, “[w]hether the particular act [is]
negligent is for the jury to decide, after considering the circumstances of the case.” Id. (first
alteration in original) (quoting Spears v. McKinnon, 270 S.W. 524, 526 (Ark. 1925)).
In this case, the United States did not commit medical malpractice. There is no factual
dispute that it took nearly twelve months to obtain the EMG and almost fifteen months to
obtain the MRI. As explained by Rogers, this time period alone does not establish
negligence. To effect safety and security, the BOP has a process for obtaining testing and
procedures from healthcare practitioners outside the BOP. This process includes ordering the
test, approval by the clinical director, further approval by the regional director in some cases,
and then submission to a third party, NaphCare, for scheduling. The BOP received Dr.
Sokoloff’s request for additional EMG testing. The medical director approved this request
and submitted the request to NaphCare to schedule a date to obtain the testing. After Laird
was unable to obtain the testing on May 8, 2014, it is still unknown how or why the test was
not rescheduled immediately, but there is no evidence that the BOP was negligent in failing
to follow its usual process for scheduling or that the BOP was even responsible for
rescheduling the operation after it was pushed back in May 2014. Here, the BOP acted as a
reasonable medical care provider would: it approved a request for additional testing and
passed this information on to NaphCare for scheduling, as it always did. It is not appropriate
to hold the government liable for medical malpractice when it followed its usual procedure
for outside medical testing.
Laird argues that the government should not be able to free itself from liability simply
by passing the blame onto a third party. The Arkansas Supreme Court considered this very
issue in Spears v. McKinnon, 270 S.W. 524 (Ark. 1925); see also Rodgers, 2010 WL
3783696, at *3 (“Although decided in 1925, Spears has never been overruled and remains
the law in this jurisdiction.”). Spears was a medical malpractice case in which the doctors
left a sponge or gauze in the patient’s abdomen. See Spears, 270 S.W. at 525. The doctors
argued that they were not liable because it was the attendant nurses’s job to make sure that
no sponges or gauze was left inside the patient. Id. at 526. The Arkansas Supreme Court
rejected the idea that the doctors could automatically relieve themselves of liability by
passing blame onto a third party but held that negligence would be determined based on the
“circumstances of the case.” Id. (citation omitted). Based on the circumstances of Laird’s
case, the BOP did not commit medical malpractice, not because it cast blame onto a thirdparty scheduler, but because it followed its procedures in obtaining a medical test for an
inmate. Accordingly, the BOP is not liable based on any theory that it delayed in treating
Even if an applicable standard of care had been breached, Laird has not proved by a
preponderance of the evidence that the defendant’s alleged negligence is the proximate cause
of his injuries. “Proximate cause is that which in a natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury and without which the result
would not have occurred.” Dodd v. Sparks Reg’l Med. Ctr., 204 S.W.3d 579, 585 (Ark. Ct.
App. 2005). The Arkansas Medical Malpractice Act “implements the traditional tort standard
of requiring proof that ‘but for’ the tortfeasor’s negligence, the plaintiff’s injury or death
would not have occurred.” Ford v. St. Paul Fire & Marine Ins. Co., 5 S.W.3d 460, 462-63
(Ark. 1999). “It is not required in a case of this kind that the injured party show to a
mathematical certainty or to the exclusion of every other hypothesis that his injury occurred
as a result of the negligence of which he complains.” Lanier, 180 S.W.2d at 823.
Laird first complained of pain in his left shoulder in January 2011. All signs pointed
to a degenerative condition that had developed as part of the natural aging process. The BOP
and Dr. Sokoloff took a conservative approach to Laird’s treatment, and the defendant’s
expert, Dr. Andrew Heinzelmann, who testified at trial by video deposition, noted that a
conservative approach was an appropriate approach to take. Dr. Heinzelmann testified that
he believed that the medical treatment Laird received was within the applicable standard of
care and that even if surgery had been performed earlier, a better outcome would not have
been guaranteed. According to Dr. Heinzelmann, Laird’s symptoms can persist, even in the
face of appropriate treatment. Based on the actions the BOP took, Dr. Heinzelmann testified
that he did not believe there was any long-lasting effect from a delay with regard to Laird’s
left shoulder. Although Dr. Heinzelmann is not a cervical neurosurgeon, his testimony
regarding the BOP’s treatment of Laird’s left shoulder injury, which was thought to be the
problem from the beginning, carries great weight. Based on the reliable testimony of Dr.
Heinzelmann, Laird is unable to show, by a preponderance of the evidence, that the BOP’s
actions were the proximate cause of his injury.
The difficulty of this case is further compounded by the fact that the prison context
is different than a non-prison context. In the free world, a patient has many more options
when it comes to seeing a doctor, obtaining tests, and having operations performed. In
contrast, every outside appointment for a prisoner must go up the administrative ladder, a
process that takes time in order to effect safety and security. In no way does this mean that
a prison is free to disregard the medical needs of an inmate or that a prison may delay
treatment of a prisoner. This does mean, however, that Laird’s challenge is understandable,
but at the end of the day, the BOP is not liable in this case.
For the reasons set forth above, Laird is unable to prove that the BOP violated the
applicable standard of care or that the BOP’s actions were the proximate cause of his injuries,
and judgment is entered in favor of the United States.
IT IS SO ORDERED this 27th day of July 2016.
UNITED STATES DISTRICT JUDGE
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