Pardassee v. Federal Medical Center, Lexington
Filing
30
MEMORANDUM OPINION & ORDER: (1) Plaintiff's request for relief under FRCP 56(d) [DE 29] is DENIED; (2) Defendant's 26 MOTION to Dismiss for failure to state a claim or MOTION for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 7/23/2015.(STC)cc: COR,Plt
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
BHARRAT STEVEN PARDASSEE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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Civil Case No. 14-cv-145-JMH
MEMORANDUM OPINION & ORDER
***
This matter is before the Court upon Defendant’s Motion to
Dismiss or, in the Alternative, for Summary Judgment [DE 26].
Plaintiff, proceeding pro se, has filed a Response in which he
asks the Court to defer consideration of the motion and permit
additional time to take discovery, as well as for the Court’s
assistance in obtaining that discovery.
Fed. R. Civ. P. 56(d).
I.
Plaintiff Bharratt Steven Pardassee seeks relief under the
Federal Tort Claims Act for injuries allegedly sustained while
he was incarcerated at the Federal Medical Center-Lexington.
He
complains that he was injured as a result of prison employees’
negligence when they failed to provide him with timely medical
care while he was incarcerated.
He avers that he repeatedly
sought medical assistance over the course of almost five hours
after he experienced shortness of breath, numbness, and chest
pains and collapsed following a regular exercise routine, but
that medical and non-medical prison personnel (first a nurse,
then a unit officer, then a lieutenant) delayed seeking medical
care for him.
He further avers that he had suffered a heart
attack or myocardial infarction and that he now suffers from
“akinetic stenosis” which causes permanent and persistent damage
to his body as a result of the delay in treatment for that heart
attack.
Pardassee avers that the delay constituted a breach of
the applicable duty of care owed to him and that the alleged
delay in treatment was the proximate cause of his injury.
In support of his case, he has presented a letter which
serves as an expert or opinion witness report from Francis T.
Thandroyen, M.D., his treating cardiologist in Greenville, South
Carolina.
[See DE 25.]
In that letter, Dr. Thandroyen writes:
My
initial
contact
with
Mr.
Pardassee
occurred on March 19, 2015, at which time I
became aware, upon Mr. Pardassee’s account,
that there was a delay in treatment of a
myocardial infarction on August 1, 2012[,]
while in jail. He states he suffered a
sudden
onset
of
“shortness
of
breath,
numbness, and chest pains,” indicative of
acute distress which required immediate
evaluation and treatment. As a cardiologist,
I recommend to all my patients that when
sudden, acute chest pain occurs, that they
seek immediate medical attention to assess
whether they are having a heart attack. If
the cause of chest pain or shortness of
breath is from a heart attack, failure to
receive
immediate
medical
attention,
assessment, and treatment can result in more
extensive damage of the cardiac muscle or
2
even
cardiac
death.
This
damage
adversely
affect
cardiac
prognosis
subsequent years.
can
in
[DE 25-1 at 1; PageID#: 107.]
II.
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant
is
entitled
Fed. R. Civ. P.
to
56(a).
judgment
In
as
considering
a
a
matter
motion
of
for
law.”
summary
judgment the court must construe the facts in the light most
favorable to the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
III.
Under the FTCA, a plaintiff may recover monetary awards
from
the
United
States
for
injury,
property
loss,
or
death
“caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope . . .
of employment, under circumstances where the United States, 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); see, e.g., Huffman v. United States, 82
F.3d
703,
provided
705
cause
United States).
(6th
of
Cir.
action
1996)
of
(holding
nuisance
in
that
FTCA
Kentucky
claim
law
against
Because the alleged acts of negligence occurred
3
in Kentucky, Plaintiff’s claims sound in negligence and, with
respect to medical personnel, medical malpractice under Kentucky
law.
Id.
For a plaintiff to establish a cause of action for common
law
negligence
in
Kentucky,
he
must
prove
the
following
elements: (1) duty of care; (2) breach of that duty; (3) actual
injury, and (4) that the injury was proximately caused by the
negligence.
See Mullins v. Commonwealth Life Ins. Co., 839
S.W.2d 245, 247 (Ky. 1992) (citing
Illinois Central R.R. v.
Vincent, 412 S.W.2d 874, 876 (Ky. 1967)). To establish a prima
facie case of medical malpractice under Kentucky law,
. . . a plaintiff must introduce evidence,
in
the
form
of
expert
testimony,
demonstrating (1) the standard of care
recognized by the medical community as
applicable to the particular defendant, (2)
that
the
defendant
departed
from
that
standard, and (3) that the defendant’s
departure was a proximate cause of the
plaintiff’s injuries.
Heavrin v. Jones, No. 02-CA-000016-MR, 2003 WL 21673958, at *1
(Ky.
Ct.
App.
July
18,
2003)
(citing
Reams
v.
Stutler,
742
S.W.2d 586 (Ky. 1982); Jarboe v. Harting, 397 S.W.2d 775 (Ky.
1965)).
Except
in
very
limited
circumstances
in
a
medical
negligence case, the Plaintiff “is required to present expert
testimony that establishes (1) the standard of skill expected of
4
a reasonably competent medical practitioner and (2) that the
alleged
negligence
Begley,
203
S.W.3d
proximately
165,
170
caused
(Ky.
Ct.
the
injury.”
App.
2006);
Andrew
v.
Sakler
v.
Anesthesiology Associates, P.S.C., 50 S.W.3d 210, 213 (Ky. Ct.
App. 2001) (holding that expert’s opinion must be based “on
reasonable
medical
probability
and
not
speculation
or
possibility”); Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122,
124
(Ky.
medical
1991)
(“It
negligence
is
an
cases,
accepted
proof
of
principle
that
in
causation
requires
most
the
testimony of an expert witness because the nature of the inquiry
is
such
that
jurors
are
not
competent
to
draw
their
own
conclusions from the evidence without the aid of such expert
testimony.”); see also Hernandez v. United States, No. 08-CV195-KSF, 2009 WL 1586809 *6 (E.D. Ky. June 5, 2009) (“It is the
Plaintiff’s burden to find a doctor who will testify to the
standard of treatment of each condition and testify that in his
or her expert opinion, the standard was breached by the federal
employee(s) in this case.”); Cuco v. United States, CV:5-07-338JMH, 2008 WL 4526196, 2 (E.D.Ky. September 30, 2008) (“Kentucky
law requires a medical malpractice plaintiff to support [his]
allegations
that
the
defendant
physician’s
treatment
did
not
meet the applicable standard of care with expert testimony to
this effect as part of his prima facie case.”); Vance v. United
States, 90 F.3d 1145, 1148 (6th Cir. 1996). In this instance,
5
even
if
the
Court
assumes
that
the
Dr.
Thandroyen’s
expert
report sets forth a standard of care (for example, immediate,
appropriate
medical
attention
“when
sudden,
acute
chest
pain
occurs”) by which this matter may be evaluated, he offers only
general commentary on the potential dangers associated with the
failure to receive immediate medical attention, assessment, and
treatment for suspected myocardial infarction.
Dr. Thandroyen
does not offer an opinion as to what action or inaction by
prison personnel constituted a breach of that standard of care
in this case, what injury Plaintiff suffered as a result of any
breach, or whether such a breach could be the proximate cause of
“akinetic stenosis,” which Plaintiff claims as his injury in his
Complaint.
Thus,
the
Court
agrees
with
the
United
States
that
Pardassee is unable to establish medical malpractice based on
the action or inaction of prison medical personnel.
the
Court
agrees
that
Pardassee
cannot
establish
Further,
negligence
based on the action or inaction of non-medical prison personnel
since he has offered no opinion proof regarding the causation of
his alleged injury.
Summary judgment in favor of the United
States is appropriate.
(“To
survive
a
motion
See Andrew v. Begley, 203 S.W.3d at 170
for
summary
judgment
in
a
medical
malpractice in which a medical expert is required, the plaintiff
must produce expert evidence or summary judgment is proper.”)
6
IV.
Finally,
the
Court
denies
Plaintiff’s
request
that
the
undersigned defer considering this dispositive motion or deny it
in order to permit him more time to obtain documents and reports
made on the day of the incident from the United States.
Such
relief is available under Federal Rule of Civil Procedure 56(d)
only when a nonmovant “shows by affidavit or declaration that,
for
specified
reasons,
it
justify its opposition.”
cannot
present
facts
essential
to
Ignoring the absence of an affidavit
or declaration from Pardassee for the moment, he has failed to
set forth specific reasons why he has failed to obtain a report
from an expert which offers an opinion on the necessary elements
of
negligence,
including
medical
malpractice,
as
set
forth
above.1
V.
There
being
no
genuine
issue
of
material
fact,
summary
judgment in favor of the United States is appropriate.
Accordingly, IT IS ORDERED:
(1)
that Plaintiff’s request for relief under Fed. R. Civ.
P. 56(d) [DE 29] is DENIED;
1
Of note, Dr. Thandroyen’s records, attached to his letter opinion, suggest
that the limpness or numbness in the left side of his body is the result of
issues arising in his cervical spine, not as a result of any cardiac or
vascular issue.
[See DE 25-1 at 2-11; Page ID#: 108-117.]
It strikes the
Court as unlikely that Dr. Thandroyen simply overlooked causality—rather he
was unable to offer an opinion which would support Plaintiff’s claim.
7
(2)
that
Defendant’s
Motion
to
dismiss
or,
Alternative, for Summary Judgment [DE 26] is GRANTED.
This the 23rd day of July, 2015.
8
in
the
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