Washington v. Adams et al
MEMORANDUM OPINION & ORDER: 1. The defendants' 14 motion to dismiss or in the alternative, motion for summary judgment is GRANTED IN PART and DENIED IN PART; 2. The Court GRANTS the defendant's motion with respect to Washington's Bi vens claims against Dr. Terre Adams. Dr. Adams is DISMISSED as a dft in this case; 3. The Court DENIES WITHOUT PREJUDICE the defendants' motion with respect to Washington's FTCA medical malpractice claim; 4. This matter is REFERRED to a U.S. Magistrate Judge to conduct all further pretrial proceedings; 5. The Clerk of Court shall ASSIGN this matter to the relevant Magistrate Judge (Ingram). Signed by Judge Joseph M. Hood on 10/4/2019.(KM)cc: COR,Pltf via U.S. mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DR. TERRE ADAMS, et al.,
Civil No. 5: 19-73-JMH
Lexington, Kentucky (“FMC-Lexington”), pro se plaintiff Carroll
orthopedic surgeons recommended that he promptly receive an MRI
followed by, depending on the test results, surgery.
FMC-Lexington did not provide Washington with the recommended MRI
until four months later. At that point, the University of Kentucky
surgeon no longer felt that Washington’s bicep could be effectively
repaired through surgery.
In light of the delayed treatment and his lingering injury,
Washington seeks relief from the United States via the Federal
Tort Claims Act.
He also alleges a Bivens claim against Dr. Terre
Adams of FMC-Lexington.
Dr. Adams and the United States have
jointly moved to dismiss or, in the alternative, for summary
judgment on all claims.
For the reasons that follow,
the defendants’ motion is GRANTED IN PART and DENIED IN PART.
In August 2017, Carroll Washington was incarcerated at FMCLexington in Lexington, Kentucky.1
According to the complaint,
Washington first injured his bicep on August 16, 2017, while
helping another inmate move a locker.
[R. 7 at 3.]
On August 29,
2017, Washington was taken to the University of Kentucky Medical
Center (“UK”) for treatment, where an orthopedic surgeon found
that Washington had likely suffered a left distal bicep rupture.
The surgeon’s note states that Washington would be scheduled for
surgery if the distal bicep rupture was confirmed via MRI.
14-3 at 26.]
The medical note lists the MRI as “due” on September
8, 2017, with surgery to be done “after MRI completed.”
Upon Washington’s return to FMC-Lexington that day, a
Federal Bureau of Prisons (“BOP”) medical trip return encounter
The BOP assessment states that Washington “needs
an MRI of left upper arm for probable Bicep Rupture asap.”
14-3 at 21.]
received neither an MRI nor surgery by September 8.
Washington has since been released on good time credit.
suggests that FMC-Lexington first received the official medical
records from UK on September 6, 2017, and that Dr. Adams was
notified of these records twenty days later on September 26, 2017.
[R. 14-1 at 5.]
Although Dr. Adams signed the order requesting an
MRI the very next day, an MRI was still not attempted until
November 9, 2017.
[Id. at 5-6.]
Then, because Washington was too
large for the onsite mobile MRI unit, the November 9 attempt
Washington finally received the needed MRI on December
20, 2017, and he was seen by UK orthopedics two days later.
At that point, the surgeon noted that Washington indeed
had a bicep tendon tear that affected the majority of the tendon.
The surgeon further stated that “[t]here is very little tendon
remaining below the myotendinous junction, making direct repair
impossible.” [R. 1-3 at 6.] The defendants interpret this finding
to mean that the surgeon would not perform surgery because of the
type of injury revealed on the MRI. [R. 14-3 at 5.] But Washington
claims that the four-month delay caused his injury to be such that
surgery would no longer prove effective.
[See, e.g., R. 21 at 5-
Washington sues Dr. Adams pursuant to the doctrine announced
in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971), claiming his Eighth Amendment right was violated by the
delayed MRI and resulting irreparable injury.
seeks relief from the United States under the Federal Tort Claims
The Court previously conducted a preliminary screening of
Washington’s claims and served the defendants with the complaint.
The defendants have now responded to the complaint with
a joint motion to dismiss or, in the alternative, motion for
No discovery has been completed.
The Court first addresses Washington’s Bivens claim against
To the extent Washington seeks relief from Dr. Adams
for an alleged violation of his Eighth Amendment rights, that claim
Although Washington appears to have
filed twenty-two administrative remedy requests during BOP tenure,
the record indicates that none of those requests pertain to Dr.
Adams, and none of them were filed at FMC-Lexington.
1 at 7.]
[See R. 14-
Under the terms of the Prison Litigation Reform Act,
pursuing administrative relief is a prerequisite to seeking money
damages under Bivens.
See, e.g., 42 U.S.C. § 1997e(a); Jones v.
exhaustion is mandatory under the PLRA and that unexhausted claims
exhausted his Eighth Amendment claim against Dr. Adams with the
BOP, he may not proceed with that claim here.
defendants’ motion to dismiss the Bivens claim will be granted.
Washington’s claim against the United States is not as easily
The Federal Tort Claims Act (“FTCA”) allows a plaintiff
to recover money damages from the United States for injuries
“caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope . . . of
28 U.S.C. § 1346(b).
Washington alleges the medical
[See, e.g., R. 7.]
“Liability under the FTCA is
determined by reference to the law of the state where the alleged
medical malpractice or negligence occurred.”
Shedden v. United
States, 101 F. App’x 114, 115-16 (6th Cir. 2004) (citations
malpractice law applies.
Under Kentucky law, “a plaintiff alleging medical malpractice
must prove that a medical provider failed to adhere to the standard
of care of a reasonably competent practitioner in the same medical
field, proximately causing the plaintiff’s injury.”
Robinson, 52 F. App’x 808, 809-10 (6th Cir. 2002) (citing Reams v.
Stutler, 642 S.W.2d 586, 588 (Ky. 1982); Blair v. Eblen, 461 S.W.2d
370, 373 (Ky. 1970)).
“Generally, expert testimony is required to
show that a medical provider failed to conform to the applicable
standard of care and caused the plaintiff’s injury.”
Vance, 90 F.3d at 1148; Jarboe v. Harting, 397 S.W.2d 775, 777-78
testimony is not required in res ipsa loquitur cases “where the
jury may reasonably infer both negligence and causation from the
mere occurrence of the event and the defendant’s relation to it.”
(internal quotation marks and citation omitted).
This occurs, for
instance, “where the surgeon leaves a foreign object in the body”
or operates on the wrong organ or limb.
S.W.3d 165, 170 (Ky. App. 2006).
Andrew v. Begley, 203
Further, expert testimony is
unnecessary where “the defendant doctor makes admissions of a
technical character from which one could infer that he or she acted
Id. at 171.
In this case, Washington has not presented expert testimony
in support of his medical malpractice claim.
merely indicates that “no expert testimony is available” and he
thus attempts to rely on one of the two exceptions outlined above.
[See R. 21 at 2.]
However, the first res ipsa loquitur exception does not apply.
This Court has recognized that “delay-based allegations . . . are
fundamentally different from a surgeon leaving a foreign object in
a person or operating on the wrong part of the body.”
United States, No. 6:13-184-DLB, 2016 WL 8814363, at *6 (E.D. Ky.
Feb. 8, 2016).
And Kentucky courts have found essentially the
See Jones v. Gaes, No. 2009-SC-780, 2011 WL 1642225, at *3
(Ky. April 21, 2011) (“Absent expert testimony, a layperson is not
competent to determine whether the alleged delay by Dr. Jones in
recognizing and treating Gaes’s perforated colon was the proximate
cause of her pain and suffering, the colostomy procedure, or her
ongoing medical problems.”).
Further, on the present record, the second exception based on
defendant admissions also does not appear to apply.
the Sixth Circuit has noted that the relevant defendant admissions
“may be supplied . . . during discovery.”
Vance, 90 F.3d at 1148.
And no discovery in this matter has been conducted.
“The general rule is that summary judgment is improper if the
Washington has not explicitly requested discovery in this case,
the fact remains that “an expert’s opinion frequently is not
obtained until after such discovery is conducted.”
Id. at 1149.
“Thus, the evidence that [the defendants] fault [Washington] for
not providing is evidence which he was neither required nor likely
to have obtained prior to filing suit.”2
So while the
Notably, Washington was able to obtain and provide one medical record
pertinent to his case. [See R. 21-1.] Perhaps, given a reasonable
opportunity to conduct discovery, Washington could obtain actual
expert testimony from that physician regarding the impact (if any) of
the delayed MRI.
defendants’ arguments are well taken, the Court nevertheless finds
it would be premature to grant summary judgment at this time, when
dealing with a pro se party and where “no discovery was conducted
before the motion for summary judgment was filed.”
in original); Lytle v. United States, No. 5:18-0599-KKC, 2018 WL
5268613 (E.D. Ky. Oct. 23, 2018) (denying motion to dismiss or, in
the alternative, motion for summary judgment in similar case).
For the foregoing reasons, the Court hereby ORDERS as follows:
alternative, motion for summary judgment [R. 14] is GRANTED IN
PART and DENIED IN PART.
The Court GRANTS the defendants’ motion with respect to
Washington’s Bivens claim against Dr. Terre Adams.
Dr. Adams is DISMISSED as a defendant in this case.
Pursuant to 28 U.S.C. § 636(b), this matter is REFERRED
to a United States Magistrate Judge to conduct all further pretrial
proceedings, including overseeing discovery and preparing proposed
findings of fact and recommendations on any future dispositive
The Clerk of the Court shall ASSIGN this matter to the
relevant Magistrate Judge.
This the 4th day of October, 2019.
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