Gonzalez v. USA
Filing
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MEMORANDUM OPINION & ORDER: 1) Government's motion for S/J 12 is GRANTED; 2) All other pending motions are DENIED as MOOT; 3) Clerk shall STRIKE 25 and maintain that docket entry under SEAL; 4) Jgm in favor of the US shall be entered in this matter. Signed by Judge David L. Bunning on 02/26/18.(MRS)cc: COR, Pro Se Filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 17-270-DLB
ERIBERTO GONZALEZ
VS.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
UNITED STATES OF AMERICA
DEFENDANT
*** *** *** ***
Eriberto Gonzalez is an inmate who was recently confined at the Federal
Correctional Institution (FCI) in Manchester, Kentucky. Proceeding without a lawyer,
Gonzalez filed a complaint against the United States pursuant to the Federal Tort Claims
Act (FTCA), challenging the sufficiency of the medical care he received at FCIManchester. (Doc. #1). The United States filed a motion to dismiss Gonzalez’s complaint
or, in the alternative, a motion for summary judgment (Doc. #12). Gonzalez having
responded (Doc. #19), and the United States having replied (Doc. #22), this matter is ripe
for review. For the reasons set forth below, the Court will grant the United States’ motion
for summary judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Gonzalez alleges that he experienced abdominal and colon-related problems while
he was incarcerated at FCI-Manchester, and he claims that the medical staff at the prison
provided him with care that fell below the applicable standard and caused him harm.
(Doc. # 1) According to Gonzalez’s complaint, he visited the prison’s Health Services
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Unit on three different occasions—once in September 2014, once in October 2014, and
once in November 2014. Id. at 3-8. Gonzalez indicates that, on each occasion, he
complained of abdominal pain and blood in his stool. (Id.). Gonzalez states that a
member of the medical staff evaluated or examined him during each visit and repeatedly
directed him to use hemorrhoid cream. (Id.). Gonzalez says that he followed these
instructions and purchased hemorrhoid cream from the commissary. (Id.). Nevertheless,
Gonzalez claims that his symptoms continued. (Id.).
Although Gonzalez alleges the foregoing facts in his complaint, the Government
disputes his timeline and puts forth extensive evidence to support its version of events,
including Gonzalez’s medical records. (Doc. # 12). Those records show that the medical
staff at the Health Services Unit conducted Gonzalez’s initial health screening in March
2014 and then treated Gonzalez in April, May, June, September, and November of 2014.
(Docs. # 12-5 at 2; #12-6 at 1-30). On those occasions, Gonzalez’s health complaints
were related to either a fungal infection on his foot or a rash on his hands, and the medical
staff provided Gonzalez with various treatments. (Id.). Notably, Gonzalez’s medical
records suggest that he did not complain of abdominal pain, blood in his stool, or a similar
problem at any of these appointments. (Id.). In fact, the records indicate that Gonzalez
first complained of abdominal pain and blood in his stool in December 2014. (Docs. #125 at 2-3; #12-6 at 31-39).
Although the parties’ disagree on the exact timeline of events, they agree that
Gonzalez visited the Health Services Unit on December 2, 2014. (Docs. # 1 at 8; # 1-1
at 5; # 12-6 at 31). During that visit Gonzalez complained to medical staff of “abdominal
pain . . . and blood in his stool x 5 days.” (Doc. # 12-6 at 31). A Physician Assistant (PA)
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provided Gonzalez with care, and checked his temperature, pulse, respiratory rate, blood
pressure, and oxygen saturation level. Id. at 31-32. The PA also examined Gonzalez’s
abdomen and gastrointestinal system and ran a series of blood and lab tests. Id. at 3334. The PA then ordered x-rays of Gonzalez’s abdomen. Id. at 34. Although the x-rays
came back negative, Gonzalez’s labs were abnormal. Id. at 37. Therefore, the PA
consulted with the prison’s physician and decided to send Gonzalez to a local hospital
emergency room. Id.
At the hospital, Gonzalez indicated that his symptoms “started about 5 days ago”
and were getting worse. (Doc. # 12-7 at 2). The emergency room staff then examined
and treated Gonzalez, diagnosed him with colitis, and prescribed him multiple
medications. (Doc. # 12-6 at 40). The hospital then transferred Gonzalez back to prison.
Id.
Three days later, Gonzalez returned to the Health Services Unit still complaining
of abdominal pain and blood in his stool. Id. at 48. The PA and other members of the
prison’s medical staff provided Gonzalez with care and determined that his condition had
not improved. Id. at 48-50. As a result, prison officials transferred Gonzalez back to the
hospital, where medical professionals performed a colonoscopy and several blood
transfusions, in addition to administering numerous antibiotic treatments. (Doc. # 12-5 at
4). Gonzalez was diagnosed with acute blood loss anemia from a lower gastrointestinal
bleed caused by ulcerative colitis, and he remained at the hospital for over one month.
Id.
Gonzalez was discharged from the hospital in January 2015, and he continued to
receive medical care at FCI-Manchester for a few weeks. Id. at 4-6. However, Gonzalez
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was then transferred to another federal prison out of state. Id. at 6. Gonzalez was
hospitalized again and, eventually, in March 2015, underwent a total colectomy. Id.
Gonzalez was not satisfied with the medical care he received from officials at FCIManchester and, thus, he pursued administrative remedies with the Bureau of Prisons.
(Doc. # 1 at 1-2). However, Gonzalez’s requests for relief were denied and, therefore, he
filed this lawsuit against the United States pursuant to the FTCA. (Doc. # 1). Ultimately,
Gonzalez claims that the medical staff at the prison provided him with care that fellow
below the applicable standard and caused him harm, and he is seeking millions of dollars
in damages. Id.
The United States now moves to dismiss Gonzalez’s complaint or, in the
alternative, asks for summary judgment. (Doc. # 12-1). The Government argues that
Gonzalez’s medical records show that he received prompt care consistent with that of a
reasonable medical practitioner, and it maintains that Gonzalez has not put forth evidence
of his own that supports a contrary conclusion. Id. at 15-19. The Government also argues
that Gonzalez has not made out a case against the United States because he has not put
forth expert testimony to support his FTCA claim. Id. at 9-14.
Gonzalez has filed a response to the Government’s motion, as well as his own
motion for summary judgment. (Docs. # 18, 19). Those submissions, however, are
difficult to follow. As best as the Court can tell, Gonzalez suggests for the first time in his
response that his colon problems are somehow related to his foot fungus. (Doc. # 19 at
1-2). He also spends a significant amount of time arguing about bicameralism and
claiming that he is somehow being incarcerated in violation of his constitutional rights.
(Doc. # 18). Gonzalez, however, does not dispute in any meaningful way the arguments
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and evidence put forth by the Government. Gonzalez also does not offer his own evidence
in response to the Government’s motion; instead, he appears to largely rely on the
allegations set forth in his complaint.
II.
ANALYSIS
Turning to the Government’s dispositive motion (Doc. # 12), the Court will treat it
as a motion for summary judgment because the United States has attached and relied
upon documents and declarations extrinsic to the pleadings. See Fed. R. Civ. P. 12(d);
Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). Ultimately, the
Court will grant the Government’s motion because Gonzalez’s case is unavailing.
Gonzalez has not pled a viable FTCA claim against the United States. As an initial
matter, the extensive evidence submitted by the Government, and not refuted by
Gonzalez, clearly demonstrates that the medical staff at FCI-Manchester provided
Gonzalez with prompt, comprehensive care as soon as he complained about his
abdominal and colon-related problems in December 2014. Therefore, for the reasons
stated in the Government’s motion and reply brief (Docs. # 12-1 at 15-19; 22 at 1-3),
Gonzalez has not presented a valid claim for medical malpractice under the FTCA.
More importantly, even if the Court were to accept Gonzalez’s timeline of events,
he still cannot survive the Government’s motion for summary judgment because he has
not put forth expert testimony to support his case. To be sure, Gonzalez claims that the
medical staff at FCI-Manchester provided him with care that fell below the applicable
standard and caused him harm. However, Kentucky law applies to his case, see Huffman
v. United States, 82 F.3d 703, 705 (6th Cir. 1996), and it provides that a plaintiff is
generally required to put forth expert testimony to establish the relevant standard of care,
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any breach of that standard, causation, and the resulting injury. See Blankenship v.
Collier, 302 S.W.3d 665, 667, 675 (Ky. 2010); Jackson v. Ghayoumi, 419 S.W.3d 40, 45
(Ky. Ct. App. 2012). In fact, the Kentucky courts have clearly said that “[t]o survive a
motion for summary judgment in a medical malpractice case in which a medical expert is
required, the plaintiff must produce expert evidence or summary judgment is proper.”
Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. Ct. App. 2006). Here, Gonzalez has not
provided any expert testimony and has therefore failed to establish a prima facie case of
medical malpractice.
The Court acknowledges and appreciates that Gonzalez’s English-language skills
are limited and that he has repeatedly asked the Court to appoint him an attorney to assist
him with his case, including helping him obtain a medical expert’s opinion. (Docs. #4,
#17). However, despite Gonzalez’s suggestions to the contrary, he does not have a
constitutional right to counsel in this civil case, and this matter does not present the kind
of circumstance that would otherwise justify either the appointment of counsel or an
expert. See, e.g., Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); Brown v. United
States, 74 F. App’x 611, 614-15 (7th Cir. 2003).
Finally, the Court recognizes that there is a “common knowledge” exception to the
expert witness rule. This exception provides that, under certain limited circumstances,
expert testimony may not be required in a medical malpractice case. See Andrew, 203
S.W.3d at 170. But this exception only applies in a situation in which “any layman is
competent to pass judgment and conclude from common experience that such things do
not happen if there has been proper skill and care,” and it is “illustrated by cases where
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the surgeon leaves a foreign object in the body or removes or injures an inappropriate
part of the anatomy.” Id. (citation and quotation marks omitted).
Gonzalez’s claim does not meet this very narrow exception. At most, Gonzalez
implies that the prison’s medical staff was responsible for a delay during a critical time
when he argues that the medical staff did not provide him with “timely treatment of a
treatable medical condition.” (Doc. #19 at 2). This Court, however, has recognized that
these kinds of “delay-based allegations ... are fundamentally different from a surgeon
leaving a foreign object in a person or operating on the wrong party of the body.” Earle
v. United States, No. 6:13-cv-184, 2016 WL 8814363, *6 (E.D. Ky. 2016). As the Court
put it in Earle:
Laypeople certainly are not competent, based on common, everyday
experience, to judge relative injury causation or delay effect as to … highly
complex area[s] of the body .... Particular cause(s) of [such an injury or
complication] … surely may result from many factors that laypeople do not
know how to accurately weigh or evaluate absent expert testimony on the
subject.
Id. Kentucky courts have said essentially the same thing. Jones v. Gaes, No. 2009-SC780, 2011 WL 1642225, at *3 (Ky. 2011) (“Absent expert testimony, a layperson is not
competent to determine whether the alleged delay . . . in recognizing and treating [the
plaintiff’s] perforated colon was the proximate cause of her pain and suffering, the
colostomy procedure, or her ongoing medical problems.”). The same is true in this case.
The common knowledge exception is inapplicable here and, as a result, Gonzalez’s FTCA
claim does not even get off the ground.
Finally, the Court must a resolve a procedural issue. Recently, an individual who
is not a party to this case submitted medical and other documents into the record and
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claimed to be doing so on Gonzalez’s behalf. (Doc. # 25). However, Gonzalez did not
sign this submission, as required by Rule 11 of the Federal Rules of Civil Procedure, and
there is no indication that he intended for these documents to be part of the record. Id.
Therefore, the Court will strike docket entry 25 from the record and direct the Clerk of the
Court to maintain these sensitive documents under seal.
III.
CONCLUSION
Accordingly,
IT IS ORDERED as follows:
(1)
The Government’s motion for summary judgment (Doc. #12) is GRANTED;
(2)
All other pending motions in this case are DENIED AS MOOT;
(3)
The Clerk of the Court shall STRIKE Docket Entry No. 25 from the record
and shall also maintain the documents at that docket entry under SEAL; and
(4)
A Judgment in favor of the United States will be entered contemporaneously
entered in this matter
This 26th day of February, 2018.
K:\DATA\ORDERS\ProSe\Gonzalez 17-270-DLB Memorandum CDS.docx
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