Warner v. Floyd et al
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
Case No. 16-4143-SAC-KGS
SHERRY (SHERI) FLOYD, et al.,
MEMORANDUM AND ORDER
This is a medical malpractice action which is before the
Leavenworth Health System and St. Francis Health Center.
Nos. 190 and 193.
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.
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).
“[a] memorandum in opposition
to the motion for summary judgment must begin with a section
containing a statement of material facts as to which the party
contends a genuine issue exists.
Each fact in dispute must be
portions of the record upon which the opposing party relies,
and, if applicable, state the number of movant’s fact that is
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
Doc. Nos. 192 and 195.
Of course, pro se
litigants must follows the rules of procedure, including the
Elrod v. Swanson, 478 F.Supp.2d 1252, 1268-69
(D.Kan. 2007); Keehner v. Dunn, 409 F.Supp.2d 1266, 1270 (D.Kan.
A “[p]laintiff’s pro se status, in and of itself, does
not prevent this Court from granting summary judgment.”
478 F.Supp.2d at 1269; see also, Keehner, 409 F.Supp.2d at 1270.
II. Plaintiff’s contentions
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]
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;
plaintiff’s care to state and federal agencies.
Doc. No. 186,
III. Uncontroverted facts
Plaintiff has not specifically controverted the lists of
summary judgment motions.
After reviewing the motions and the
support materials, the court finds that the following facts are
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.
agreed to that procedure.
Defendant Sheri Floyd, a
The thumb wounds were cleansed and a
local anesthetic was administered prior to suturing.
complained of pain during the suturing process.
that it stop.
Floyd tied off the sixth suture and used steri
strips to finish closing the lacerations.
importance of cleaning the wounds.
Floyd explained 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
treatment plan was established which included pain medication
A prescription by Floyd for antibiotics was
transmitted to a pharmacy.
On February 17, 2015, staff at the St. Francis Physician
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.
to Brewster ReadyCare Clinic where he was assessed and referred
to the emergency room at St. Francis Health Center.
Plaintiff was continued on antibiotics and pain medication, and
he was told to follow up with his primary care doctor in two to
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.
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.
streaking; minimal warmth; and decreased sensation and range of
motion because of swelling.
Plaintiff was told to continue
elevate his thumb and use it as tolerated.
On April 1, 2015, plaintiff was seen again at Brewster
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.
On April 3, 2015, plaintiff visited the St. Francis Health
A MRI was conducted which provided some indications
On April 6, 2015, plaintiff saw Dr. Michael Tablang at
Tablang observed some swelling and tenderness.
antibiotics for at least six weeks.
day, April 7.
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.
Approximately one year
syndrome and left thumb arthritis at a clinic in Arizona.
She has never been an employee of defendant Sisters of
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
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
Treaster v. HealthSouth Corp., 442 F.Supp.2d
1171, 1179 (D.Kan. 2006); Sharples v. Roberts, 816 P.2d 390, 397
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
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
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.
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,
He has also made assertions in the final pretrial order
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
Doc. No. 182.
Plaintiff also has not presented evidence
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
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
Palmer v. Shawnee Mission Medical Center, Inc., 2017 WL 5629624
Tarantola v. Cushing Memorial Hosp., 2012 WL 5877532 *3 (D.Kan.
doctrine applies to the facts of this case.
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
without the assistance of expert testimony.
at 1093; Tarantola, at *3.
Hubbard, 302 P.3d
Here, defendant Floyd’s alleged
summary, may not reasonably be characterized as patently bad.
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.
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.
Also, the occurrence must be of such kind or
something which occurs ordinarily only because of negligence.
See Palmer, at *9 (dismissing res ipsa loquitur claim where lay
discharged from hospital for false labor pains and less than two
hours later gave birth at her home).
without expert witness testimony.
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
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.
This statute bars vicarious liability in a medical
malpractice case where the employer and the care provider are
See Cady v. Schroll, 317 P.3d 90, 93-94
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
screening panel pursuant to K.S.A. 65-4901.
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.
This court has applied that
See Cox v. Ann, 2014 WL 1011679 *2
(D.Kan. 5/3/2006)(applying the time limit to a request for a
Plaintiff’s request is untimely.
Therefore, it shall be denied.
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
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