Sells v. USA
ORDER granting 31 motion for an extension of time; granting 10 motion for summary judgment; and adopting in part and rejecting in part 30 Recommendations. A judgment dismissing Mr. Sells's case will be entered by separate Order. Signed by Judge Kristine G. Baker on 03/03/2016. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
Case No. 4:14-cv-00638 KGB
UNITED STATES OF AMERICA
(“Recommendations”) submitted by United States Magistrate Judge Jerry W. Cavaneau (Dkt.
The United States moved for an extension of time to file objections to the
Recommendations (Dkt. No. 31). The Court grants the motion for extension of time, and will
consider as timely filed the objections filed by the United States to specific parts of the
Recommendations (Dkt. No. 32). Plaintiff Anthony Sells did not file any objections, and the
time for filing objections has passed. After carefully considering the Recommendations and the
objections, and after making a de novo review of the record in this case, the Court adopts in part
and rejects in part the Recommendations.
Mr. Sells is an inmate at FCI Forrest City Low. Mr. Sells filed a pro se complaint
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., alleging that he
was denied adequate medical care for a lump on his face, denied prescribed medication, and
given an unsafe medication combination for his elevated blood lipid levels. Mr. Sells also
claimed that he was denied healthier fruits and vegetables that were prescribed by his physician
because he is not allowed sufficient time to eat them. The United States filed a motion to
dismiss or, in the alternative, a motion for summary judgment, a brief in support, and a statement
of facts (Dkt. Nos. 10, 11, 12). Mr. Sells filed a response, brief in support, and a responsive
statement of facts (Dkt. Nos. 24, 25, 26). Judge Cavaneau held a hearing on the motion on July
28, 2015. Mr. Sells testified at that hearing.
The Court agrees with Judge Cavaneau’s recommendation to dismiss Mr. Sells’s denial
of prescribed medication claim, unsafe medication combination claim, and claim that he is
denied time to eat healthier fruits and vegetables as prescribed by his physician. The United
States does not object to those portions of the Recommendations. After a de novo review of the
record, the Court adopts the Recommendations to dismiss without prejudice each of those
The United States does object, however, to Judge Cavaneau’s recommendation with
regard to Mr. Sells’s claim that he was denied medical care for a lump on his face. The United
States contends that the factual conclusion that Mr. Sells suffered “from what was obviously an
active, uncomfortable infection for almost a year” is erroneous and unsupported by the evidence.
In addition, the United States contends that additional evidence, in the form of an affidavit from
Dr. Martin Tindel, reveals that Judge Cavaneau erred by concluding that the record entries of
June 2014, directing the scheduling “ASAP” or as soon as possible in no uncertain terms, and of
December 2014, stating that Mr. Sells was lost to follow-up, are adequate medical evidence of
negligence to prevent summary judgment on this claim. Specifically, the United States contends
that Dr. J. Chapman routinely included the term “ASAP” on his consultation requests, even when
the nature of the inmate’s medical condition did not require immediate or urgent consideration,
and that, in the medical opinion of Dr. Tindell, Dr. Chapman’s use of this term was inappropriate
under the circumstances. The United States contends that the evidence in the record shows that
there was no negligence in scheduling the removal of Mr. Sells’s sebaceous cyst.
First, this Court notes that Mr. Sells filed his complaint pursuant to the FTCA. Congress
enacted the FTCA as a limited waiver of the sovereign immunity of the United States. Johnston
v. United States, 85 F.3d 217, 218–19 (5th Cir. 1996) (citing United States v. Kubrick, 444 U.S.
111, 117–18 (1979)). Subject to some exceptions, the United States is liable in tort for certain
damages caused by the negligence of any employee of the Government “if a private person,
would be liable to the claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b). Substantive state law determines whether a cause of action
exists. F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994) (state law is the source of substantive
liability under the FTCA); Johnston, 85 F.3d at 219. Therefore, this Court turns to Arkansas
Mr. Sells’s claim that he was denied medical care for a lump on his face is governed by
the Arkansas Medical Malpractice Act. In an action for medical injury, under Arkansas law, a
plaintiff must prove the applicable standard of care and a deviation therefrom, unless the asserted
negligence is a matter of common knowledge.
Ark. Code Ann. §16-114-206(a)(1)-(2).
Specifically, Ark. Code Ann. §16-114-206 states, in pertinent part, that:
(a) In any action for medical injury, when the asserted negligence does not lie
within the jury’s comprehension as a matter of common knowledge, the
plaintiff shall have the burden of proving:
(1) By means of expert testimony provided only by a medical care
provider of the same specialty as the defendant, the degree of skill and
learning ordinarily possessed and used by members of the profession of
the medical care provider in good standing, engaged in the same type of
practice or specialty in the locality in which he or she practices or in a
(2) By means of expert testimony provided only by a medical care
provider of the same specialty as the defendant that the medical care
provider failed to act in accordance with that standard.
Ark. Code Ann. § 16-114-206(a)(1)-(2). The Arkansas Supreme Court has stated that it is “well
settled” that “a plaintiff must present expert testimony when the asserted negligence does not lie
within the jury’s comprehension as a matter of common knowledge, when the applicable
standard of care is not a matter of common knowledge, and when the jury must have the
assistance of experts to decide the issue of negligence.” Robson v. Tinnin, 911 S.W.2d 246, 249
(Ark. 1995). In Broussard v. St. Edward Mercy Health System, Inc., 386 S.W.3d 385 (Ark.
2012), the Arkansas Supreme Court struck down a portion of the Arkansas Medical Malpractice
Act requiring that the expert testimony be provided only by a medical care provider of the same
specialty as the defendant. The remainder of § 16-114-206(a)(1) and (2) was unaffected and
remains controlling law in this case.
When expert testimony is required for proof of a plaintiff’s claim for medical
malpractice, and the defendant demonstrates the plaintiff’s failure to produce the requisite expert
testimony, then the defendant has demonstrated that no genuine issues of material fact exist for
presentation to a jury, and the defendant is entitled to summary judgment as a matter of law.
Tinnin, 911 S.W.2d at 250. Moreover, the Arkansas Supreme Court has stated that “mere
statements of what treatment should or should not have been provided do not qualify as
statements setting forth the applicable standard of care.” Mitchell v. Lincoln, 237 S.W.3d 455,
459 (Ark. 2006) (citing Dodd v. Sparks Reg’l Med. Ctr., 204 S.W.3d 579 (Ark. App. 2005)
(declining to find an expression of the standard of care in a statement that, “if the attending
doctors and hospital staff had exercised due care, it is more likely than not that” the plaintiff’s
decedent would not have committed suicide)); Fryar v. Touchstone Physical Therapy, Inc., 365
Ark. 295, 304, 229 S.W.3d 7, 14 (2006) (affirming summary judgment and holding that, in an
action for medical malpractice, “questions of fact” regarding the treatment rendered will not
withstand summary judgment without some explanation of their significance, as it relates to the
standard of care, by an expert witness); Tinnin, 911 S.W.2d 246 (Ark. 1995) (rejecting an
argument that assumed that “simply because treatment is available for a medical injury, it
follows that it is negligence for a medical care provider not to provide the treatment”). The
Eighth Circuit has applied expert affidavit requirements derived from state law to medical
malpractice claims filed under the FTCA. Bellecourt v. United States, 994 F.2d 427 (8th Cir.
1993) (affirming dismissal of prisoner’s medical malpractice claims filed under the FTCA
because the prisoner failed to present an expert affidavit as required by Minnesota law).
Under Arkansas law, Mr. Sells’s claim that the defendants failed to provide treatment for
a sebaceous cyst requires expert testimony establishing the standard of care. When confronted
by a motion for summary judgment challenging his claim, Mr. Sells has provided no such expert
testimony. This Court is not persuaded by the record evidence, even drawing all reasonable
inferences in his favor, that Mr. Sells’s claim survives summary judgment. Dr. Chapman’s
notation that the excision surgery should be scheduled “ASAP” does not satisfy the requirement
for expert testimony establishing the standard of care.
Further, without expert testimony
demonstrating why such a recommendation should be followed, there is no record evidence
whether the alleged negligence caused Mr. Sells’s alleged harm. Cf. Harris v. United States,
Case No. 2:13-cv-00123-BMS, 2014 WL 5384565, at *2 (E.D. Ark. 2014) (denying summary
judgment based on record evidence that, after prison health services assessed a tendon and nerve
injury and recommended “repair within two weeks,” plaintiff inmate did not see an orthopedic
physician for more than two weeks and orthopedic physician then determined it was “likely too
late for primary tendon repair”). Further, there is no indication that Mr. Sells has requested that
this Court appoint an expert witness for him. See, e.g., Rueben v. United States, Case No. 2:13-
cv-00033-DPM, 2014 WL 5460574 (E.D. Ark. 2014) (examining when it may be appropriate to
grant an indigent inmate plaintiff’s request for a court-appointed expert).
In this Court’s view, at most, Dr. Chapman’s statement is a recognition that treatment
was available and that, in Dr. Chapman’s opinion, such treatment should have been rendered
Arkansas courts, however, have rejected the notion that such conclusory statements
concerning what treatment should or should not have been provided are sufficient to establish the
standard of care or to prove causation between the alleged negligence and harm. Thus, even if
this Court were to conclude that Dr. Chapman’s notes in Mr. Sells’s medical file constituted
expert testimony, that testimony does not establish the standard of care as required by Arkansas
law. Therefore, Mr. Sells’s claim must be dismissed for failure to satisfy the requirements of the
Arkansas Medical Malpractice Act.
Accordingly, this Court dismisses Mr. Sells’s denial of prescribed medication claim,
unsafe medication combination claim, and his claim that he is denied time to eat healthier fruits
and vegetables as prescribed by his physician for the reasons set out in the Proposed Findings
and Recommendations. In addition, for the reasons stated in this Order, the Court grants the
motion for summary judgment filed by the United States with regard to Mr. Sells’s claim that he
was denied medical care for a lump on his face. Mr. Sells failed to adhere to the requirements of
Arkansas’s Medical Malpractice Act for each of these claims, and the United States is entitled to
summary judgment as a result. A Judgment dismissing Mr. Sells’s case will be entered by
So ordered this 3rd day of March, 2016.
Kristine G. Baker
United States District Judge
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