Warner v. Floyd et al

Filing 203

MEMORANDUM AND ORDER granting 190 & 193 Motions for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 2/7/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STEVEN C. WARNER
Plaintiff,
vs.

Case No. 16-4143-SAC-KGS

SHERRY (SHERI) FLOYD, et al.,
Defendants.

MEMORANDUM AND ORDER
This is a medical malpractice action which is before the
court

upon

defendant

motions
Sheri

for

Floyd

summary
and

judgment

defendants

filed

Sisters

on
of

behalf

of

Charity

of

Leavenworth Health System and St. Francis Health Center.
Nos. 190 and 193.

Doc.

Plaintiff is proceeding pro se.

I. Summary judgment and pro se standards
Summary judgment is appropriate “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).

The

local

rules

of

this

court

provide

that

a

supporting memorandum for a summary judgment motion must contain
“a concise statement of material facts as to which the movant
contends no genuine issue exists.”
local rules further provide that:

D.Kan. Rule 56.1(a).

The

“[a] memorandum in opposition

to the motion for summary judgment must begin with a section

1

containing a statement of material facts as to which the party
contends a genuine issue exists.
numbered

by

paragraph,

refer

Each fact in dispute must be
with

particularity

to

those

portions of the record upon which the opposing party relies,
and, if applicable, state the number of movant’s fact that is
disputed.”

D.Kan. Rule 56.1(b)(1).

“All material facts set

forth in the statement of the movant will be deemed admitted for
the purpose of summary judgment unless specifically controverted
by the statement of the opposing party.”

D.Kan. Rule 56.1(a).

Plaintiff received notice of the provisions of Fed.R.Civ.P. 56
and D.Kan. Rule 56.1 when defendants filed their motions for
summary judgment.

Doc. Nos. 192 and 195.

Of course, pro se

litigants must follows the rules of procedure, including the
local rules.

Elrod v. Swanson, 478 F.Supp.2d 1252, 1268-69

(D.Kan. 2007); Keehner v. Dunn, 409 F.Supp.2d 1266, 1270 (D.Kan.
2005).

A “[p]laintiff’s pro se status, in and of itself, does

not prevent this Court from granting summary judgment.”

Elrod,

478 F.Supp.2d at 1269; see also, Keehner, 409 F.Supp.2d at 1270.
II. Plaintiff’s contentions
Plaintiff

suffered

a

dog

bite

to

his

left

thumb.

The

parties allege that plaintiff was treated by defendant Floyd on
February 7, 2015 for this injury. See Final Pretrial Order, Doc.
No. 186, pp. 4-5.

According to plaintiff’s response to the

motions for summary judgment, plaintiff’s “legal position [is]
2

that the negligence of defendant Floyd caused Plaintiff life
threatening harm by not providing [a] required discharge summary
for Plaintiff to sign and take home upon discharge on 2/7/2015.”
Doc. No. 198, p. 4.

According to the final pretrial order,

plaintiff further contends: that he refused consent to defendant
Floyd to suture his wound; that Floyd’s failure to anesthetize
the wound caused plaintiff trauma; that there was a failure to
evaluate plaintiff’s diagnosis after six weeks of antibiotics;
and

that

defendants

failed

to

report

complaints

plaintiff’s care to state and federal agencies.

about

Doc. No. 186,

pp. 4-5.
III. Uncontroverted facts
Plaintiff has not specifically controverted the lists of
uncontroverted

facts

defendants

summary judgment motions.

have

presented

with

their

After reviewing the motions and the

support materials, the court finds that the following facts are
uncontroverted.

On February 7, 2015, plaintiff sought care at

the Brewster ReadyCare Clinic, a St. Francis Physician Clinic,
for a dog bite on his left thumb.
physician’s
discussed
suturing

assistant,
the

the

risks,

provided

care

benefits

and

lacerations

agreed to that procedure.

on

Defendant Sheri Floyd, a
to

plaintiff.

limitations

plaintiff’s

thumb

of

and

Floyd
loosely
plaintiff

The thumb wounds were cleansed and a

local anesthetic was administered prior to suturing.
3

Plaintiff

complained of pain during the suturing process.
was

stopped

and

an

additional
the

amount

suturing

of

The suturing

anesthetic

continued,

administered.

After

that it stop.

Floyd tied off the sixth suture and used steri

strips to finish closing the lacerations.
importance

of

a

thorough

examination

importance of cleaning the wounds.

plaintiff

was
asked

Floyd explained the

of

the

wounds

and

the

The progress notes of the

visit (Doc. No. 191-2, p.2) indicate that a “wound handout” was
given to plaintiff. Further, plaintiff was informed to keep the
wound clean and dry, to apply antibiotic ointment daily, to
notify

the

return

in

clinic
7

days

if

he

for

noticed

the

signs

removal

of

of

infection,

the

sutures.

and
Id.

to
A

treatment plan was established which included pain medication
and antibiotics.

A prescription by Floyd for antibiotics was

transmitted to a pharmacy.
On February 17, 2015, staff at the St. Francis Physician
Clinic

called

complained
hand.

of

plaintiff
unbearable

to

check

pain

and

on

his

status.

discoloration

Plaintiff
in

his

left

He requested a refill of his antibiotics prescription and

said he was out of pain medication.

Plaintiff was advised that

he needed to be seen by a health care provider.

Plaintiff went

to Brewster ReadyCare Clinic where he was assessed and referred
to the emergency room at St. Francis Health Center.

4

At
LeFever,

the

emergency

observed

room,

that

a

physician’s

the

left

thumb

had

assistant,
become

Shari

infected.

Plaintiff was continued on antibiotics and pain medication, and
he was told to follow up with his primary care doctor in two to
three days.
On February 26, 2015, plaintiff visited Brewster ReadyCare
Clinic to recheck the dog bite.

He was seen by defendant Floyd

in conjunction with Dr. Michael McClintick.

The wound appeared

well-healed, but there was some tenderness to the touch.

A

change in antibiotics was prescribed and plaintiff was referred
to another clinic for evaluation and treatment of his thumb.
On March 11, 2015, plaintiff reported to the St. Francis
Health Center emergency department to recheck his left thumb.
It

was

reported

that

there

was:

some

mild

swelling;

no

streaking; minimal warmth; and decreased sensation and range of
motion because of swelling.
antibiotics

until

he

was

Plaintiff was told to continue

seen

by

a

hand

specialist

and

to

elevate his thumb and use it as tolerated.
On April 1, 2015, plaintiff was seen again at Brewster
ReadyCare Clinic.

Plaintiff was told to keep the wounded area

clean and dry, finish all antibiotics, and to follow up with his
primary care doctor if his symptoms did not improve.
was referred to an infectious disease specialist.

5

Plaintiff

On April 3, 2015, plaintiff visited the St. Francis Health
Center

emergency

infection.
of

department

complaints

of

a

left

thumb

A MRI was conducted which provided some indications

osteomyelitis.

antibiotics
hospital

with

for

An

3-6

admission

orthopedic

weeks.
for

physician

Plaintiff

an

infectious

was

recommended
also

disease

IV

offered

consult,

a

but

plaintiff refused.
On April 6, 2015, plaintiff saw Dr. Michael Tablang at
Mission

Woods

Clinic,

a

St.

Francis

Physician

Tablang observed some swelling and tenderness.
antibiotics for at least six weeks.
day, April 7.

Clinic.

Dr.

He ordered IV

This was started the next

Also on April 7, plaintiff saw defendant Floyd

for blood pressure and pain medications.

She advised plaintiff

to continue IV therapy and the keep all scheduled appointments.
On May 8, 2015, plaintiff was again seen by Dr. Tablang.
No tenderness or erythema was observed and there was full range
of motion in plaintiff’s left thumb.
later

plaintiff

was

diagnosed

with

Approximately one year
bilateral

carpal

tunnel

syndrome and left thumb arthritis at a clinic in Arizona.
Defendant
Francis.

Floyd

has

been

an

employee

of

defendant

St.

She has never been an employee of defendant Sisters of

Charity.

Defendant

qualified

for

St.

coverage

Francis
under

6

is
the

a

health
Kansas

care

provider

Health

Care

Stabilization Fund.

Defendant Floyd is a health care provider

and is also qualified for coverage under the Fund.
IV. Medical malpractice standards
Plaintiff is bringing Kansas state law claims of medical
practice

which

this

court

may

properly

consider

under

the

diversity jurisdiction provisions of 28 U.S.C. § 1332.
To recover upon a claim of medical malpractice, plaintiff
has the burden of proving the same elements required in any
negligence action.

Treaster v. HealthSouth Corp., 442 F.Supp.2d

1171, 1179 (D.Kan. 2006); Sharples v. Roberts, 816 P.2d 390, 397
(Kan.

1991).

These

elements

are:

1)

that

defendant

owed

plaintiff a duty of care; 2) that plaintiff violated that duty
of care by failing to exercise reasonable care, in other words,
committing negligence; and 3) that defendant’s negligence caused
plaintiff an injury.

See Treaster, 442 F.Supp.2d at 1179-80;

Rios v. Bigler, 847 F.Supp. 1538, 1542 (D.Kan. 1994); Sharples,
816 P.2d at 395 & 397.

“Negligence is never presumed and may

not be inferred merely from a lack of success or an adverse
result

from

treatment.”

Rios,

847

F.Supp.

at

1542.

Expert

testimony generally is required in medical malpractices cases to
establish whether there was a breach in the standard of care and
to prove causation.

Treaster, 442 F.Supp.2d at 1180; Sharples,

816 P.2d at 395 and 397-98.

“An exception arises where the lack

of reasonable care or the existence of causation is apparent to
7

the

average

layperson

from

common

knowledge

or

experience.”

Treaster, 442 F.Supp.2d at 1180.
V. Defendants Floyd, St. Francis and Sisters of Charity are
entitled to judgment as a matter of law.
Plaintiff’s

position

in

his

response

to

the

summary

judgment motions is that defendant Floyd was negligent because
she did not provide a required discharge summary for plaintiff
to sign and take home when he was discharged on February 7,
2015.

He has also made assertions in the final pretrial order

regarding

the

suturing

process,

anesthesia,

plaintiff’s

evaluation after six weeks of antibiotics and the failure of
defendants to report complaints about plaintiff’s care to state
and federal agencies.
Plaintiff has not timely designated an expert witness and
the court has barred plaintiff from using an expert witness at
trial.
to

Doc. No. 182.

dispute

This

the

opinion

Plaintiff also has not presented evidence

expert

from

Dr.

opinion

presented

Randall

McAllister

by

defendant

is

that

Floyd.

defendant

Floyd’s care was within the standards of care and did not cause
or contribute to the plaintiff’s osteomyelitis.

Doc. No. 191-8.

It is clear from the record that plaintiff cannot present
the expert testimony necessary to show that defendant Floyd was
negligent or that defendant Floyd’s care caused an injury or

8

damages to plaintiff.

Plaintiff argues that the doctrine of res

ipsa loquitur applies in this situation.
The doctrines of “common knowledge” and “res ipsa loquitur”
are applied infrequently and are limited to situations in which
it would be apparent to a layperson that an injury or an outcome
would not have occurred if due care had been exercised.1
v.

Mellion,

302

P.3d

1084,

1092

(Kan.App.

2013);

Hubbard

see

also,

Palmer v. Shawnee Mission Medical Center, Inc., 2017 WL 5629624
*8-9

(D.Kan.

11/22/2017)(discussing

res

ipsa

loquitur);

Tarantola v. Cushing Memorial Hosp., 2012 WL 5877532 *3 (D.Kan.
11/20/2012)(discussing

common

knowledge

exception).

doctrine applies to the facts of this case.

Neither

For the common

knowledge exception to apply, the care or the result of the care
must be patently bad and a person without pertinent knowledge
must be able to assess the wrongfulness of the treatment and
attribute

the

plaintiff’s

injury

to

the

wrongful

without the assistance of expert testimony.
at 1093; Tarantola, at *3.
care,

including

the

alleged

treatment

Hubbard, 302 P.3d

Here, defendant Floyd’s alleged
failure

to

provide

a

discharge

summary, may not reasonably be characterized as patently bad.
Nor

may

defendant

the

alleged

Floyd’s

result

care

(osteomyelitis)

without

1

the

be

attributed

assistance

of

to

expert

Although plaintiff does not argue the “common knowledge” exception, the
court discusses it here because it is related to “res ipsa loquitur” and
because defendants have raised the issue.

9

testimony.

It

is

not

a

matter

of

common

knowledge.

Cf.,

Tarantola, at *4 (whether stapling wound resulted in additional
scarring is not a matter of common knowledge).
For res ipsa loquitur to apply, the defendant must have the
thing or instrumentality which caused injury or damage to the
plaintiff in the defendant’s exclusive control.
P.3d at 1094.
nature

as

control

Also, the occurrence must be of such kind or

ordinarily

negligence.

Id.

over

plaintiff’s

Hubbard, 302

Here,

the

left

does

not

occur

defendants

agents

thumb.

which
Nor

is

in

did

the

not

impacted

have

the

plaintiff’s

absence

exclusive

healing

thumb

of

of

infection

something which occurs ordinarily only because of negligence.
See Palmer, at *9 (dismissing res ipsa loquitur claim where lay
persons

would

whether

not

possess

negligent

care

knowledge

was

and

provided

experience

where

to

know

plaintiff

was

discharged from hospital for false labor pains and less than two
hours later gave birth at her home).
For
plaintiff

these
could

reasons,
not

prove

defendants
negligence

without expert witness testimony.

have
or

demonstrated
causation

at

that
trial

No reasonable jury on this

record could find that plaintiff’s osteomyelitis was something
which occurred because of defendants’ negligence.
Defendant Sisters of Charity and defendant St. Francis are
also entitled to summary judgment against any claim deriving
10

from

defendant

reasons.

Floyd’s

actions

or

omissions

for

other

legal

Defendant Sisters of Charity is not vicariously liable

for defendant Floyd’s actions or omissions because it did not
employ defendant Floyd and owed no duty of care to plaintiff.
Defendant St. Francis is entitled to summary judgment against
any vicarious liability claims under the provisions of K.S.A.
40-3403(h).

This statute bars vicarious liability in a medical

malpractice case where the employer and the care provider are
both

qualified

for

Stabilization Fund.

coverage

under

the

Kansas

Health

Care

See Cady v. Schroll, 317 P.3d 90, 93-94

(Kan. 2014).
Finally, these defendants are entitled to summary judgment
against any claim alleging that they failed to make a report to
federal or state agencies because plaintiff has not alleged that
he suffered any damages caused by a failure to report.
VI. The Court declines to order a screening panel.
At the conclusion to plaintiff’s response to the summary
judgment

motions,

plaintiff

requests

a

screening panel pursuant to K.S.A. 65-4901.

medical

malpractice

Pursuant to Kansas

Supreme Court Rule 142(c), a request for such a screening panel
must be made no later than 60 days after a defendant subject to
the panel is served with process.
time limit in other cases.
(D.Kan.

3/14/2014);

Ellibee

This court has applied that

See Cox v. Ann, 2014 WL 1011679 *2
v.
11

Chappas,

2006

WL

1192941

*3

(D.Kan. 5/3/2006)(applying the time limit to a request for a
legal

malpractice

screening

panel

Plaintiff’s request is untimely.

under

K.S.A.

60-3502).

Therefore, it shall be denied.

VII. Conclusion
For

the

above-stated

reasons,

defendants’

motions

summary judgment (Doc. Nos. 190 and 193) shall be granted.
IT IS SO ORDERED.
Dated this 7th day of February, 2018, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

12

for