Martello v. Federal Bureau of Prisons et al

Filing 61

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 48 Motion for Summary Judgment (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

NICHOLAS MARTELLO
Plaintiff
v.
UNITED STATES,
Defendant.

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CIVIL ACTION NO.
1:13-cv-13089-DPW

MEMORANDUM AND ORDER
March 18, 2016
Plaintiff Nicholas Martello brings this case under the
Federal Tort Claims Act.

He alleges that, while he was in

federal custody after a violation of the terms of his supervised
release, the United States failed to provide him with adequate
medical care for a defective wire in his knee, causing him to
suffer pain and damages in the amount of $10,000.

I denied a

motion to dismiss when the government alleged inadequate service
of process.

Martello v. United States, 2015 WL 5680327 (D.

Mass. Sept. 25, 2015).

Following completion of discovery, the

United States now moves for summary judgment.

It contends that

the level of care that it provided to Martello was adequate, and
that Martello has provided no evidence or expert opinion to find
otherwise.

I. BACKGROUND
A.

Factual Background
Martello underwent knee surgery at Massachusetts General

Hospital in October of 2011.

A few months later, in January of

2012, he saw a different doctor for a follow-up visit where he
discussed the possibility of removing a wire that was put into
his knee during the original surgery.

Martello and the doctor

specifically discussed the possibility of removing the wire at a
later visit, but left it in place for the time being.
On February 9, 2012, Martello was found to have violated
the conditions of his supervised release on a prior federal
sentence.

He was taken into custody on February 15, 2012 and

transferred to a federal Bureau of Prisons facility in Brooklyn,
New York.

At that facility, he was prescribed a painkiller for

his knee as a result of an initial medical evaluation.

After a

few weeks at the facility, Martello had a full medical exam, at
which he did not complain of knee pain.
On May 31, 2012, Martello was transferred to another Bureau
of Prisons facility, this one in Otisville, New York, where he
was given another initial medical evaluation, during which his
knee was not mentioned.

On June 14, 2012, Martello saw Dr.

Sommer, the clinical director at Otisville.

He mentioned pain

in his knee, which he thought was a result of a broken wire from
his surgery.

Dr. Sommer ordered an x-ray of the knee and made a
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note to schedule a consultation with an orthopedic doctor if the
x-ray showed that the wire was broken.

The x-rays did not show

any evidence of a broken wire in Martello’s knee; consequently,
a consultation was not scheduled at that time.
On July 30, 2012, Martello had another physical exam, at
which a doctor noticed mild swelling in his knee, but no
physical evidence of a broken wire.

The doctor requested

Martello’s surgery records from MGH and requested that an
appointment be made for Martello to see an orthopedist.

This

request was provisionally approved on August 10, 2012, but
needed further approval from the Regional Medical Director
responsible for the area’s federal prison facilities.

Martello

had another exam at Otisville on September 25, 2012, during
which the doctor noticed physical signs of a defective wire in
his knee.

On November 2, 2012, Martello had a consultation with

Dr. Daniil Polishchuk, an orthopedic specialist who recommended
removing the wire.

On December 5, 2012, Martello filed an

administrative claim with the Bureau of Prisons, complaining
that he had not yet had a procedure to remove the wire, despite
Dr. Polishchuk’s recommendation.

On December 20, 2012, Dr.

Polishchuk performed a procedure to remove the wire from
Martello’s knee.

Martello was released from federal custody

shortly thereafter, when the term of his incarceration ended on
January 22, 2013.
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Martello’s administrative claim was denied on June 4, 2013.
The denial cited the fact that Martello had in fact ultimately
had the procedure to remove the wire, and that he had suffered
no compensable loss due to BOP negligence.

On December 4, 2013,

Martello filed a claim in this court seeking $10,000 in damages,
alleging inadequate and negligent medical care provided by the
United States, or, more specifically, by the BOP through its
medical staff.

Fact discovery closed on July 31, 2015.

Plaintiff’s expert disclosures were due on September 4, 2015,
those of the defendant due on October 2, 2015, and depositions
of both to be completed by October 30, 2015.

Plaintiff,

however, disclosed no expert opinion in support of his claim.
II. LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.”

Fed. R. Civ. P. 56(a), (c).

A

“genuine” dispute is one that, based on the evidentiary
material, a factfinder “could resolve . . . in favor of the nonmoving party,” and a “material” fact is one that has “the
potential to affect the outcome of the suit under the applicable
law.”

Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)

(citations and quotation marks omitted).

When reviewing a

motion for summary judgment, I view the facts “in the light most
favorable to the non-moving party.”
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Zambrana-Marrero v. Suarez-

Cruz, 172 F.3d 122, 125 (1st Cir. 1999).

If the moving party

satisfies the burden of showing, based on evidentiary material,
that there is no genuine issue of material fact, the burden
shifts to the nonmoving party to demonstrate by reference to
other evidentiary material “that a reasonable jury could return
a verdict for the nonmoving party.”
Inc., 477 U.S. 242, 248 (1986).
477 U.S. 317, 324 (1986).

Anderson v. Liberty Lobby,

See Celotex Corp. v. Catrett,

“[C]onclusory allegations, improbable

inferences, and unsupported speculations” are insufficient to
establish a genuine dispute of fact.

Medina-Munoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
III. ANALYSIS
A.

Mootness
The United States contends that, because Martello

ultimately received the necessary knee surgery, his claim is
moot because he is no longer suffering an injury.

It is of

course true that Article III requires a live case or controversy
for a district court to assert jurisdiction.

See Steffel v.

Thompson, 415 U.S. 452, 459 n. 10 (1974) (“The rule in federal
cases is that an actual controversy must be extant at all stages
of review, not merely at the time the complaint is filed.”)
Martello here asserts a claim for damages, not injunctive
relief.

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But

Martello also asserts that his claim entitles him to
damages in the amount of $10,000 to be paid by the United States
under the Federal Tort Claims Act.

See 28 U.S.C. § 2674.

If it

is determined that the care provided to Martello while in
federal custody was negligent, he may be entitled to damages as
a result.

This means that there is still a live case or

controversy.

Because Martello still has an active interest in

the determination of this suit, and still has a cognizable
injury capable of remedy under the FTCA, his case is not moot.
B.

FTCA Claim
Under the FTCA, whether or not the United States is liable

for a tort claim is to be determined by “the law of the place
where the act or omission occurred,” and the United States is to
be treated like a “private person” for determination of
liability.

28 U.S.C. § 1346.

Essentially, “the FTCA

specifically provides that the federal government’s tort
liability is co-extensive with that of a private individual
under state law.”
(9th Cir. 1984).

Proud v. United States, 723 F.2d 705, 706
In this case, the alleged tort occurred

entirely within New York State, so I will apply New York law to
determine whether or not the United States is liable.
The plaintiff’s claim rests upon the accusation that he was
the victim of medical malpractice at the hands of BOP
physicians.

In New York State, in order to prove a claim for
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medical malpractice, the plaintiff “must prove (1) that the
defendant breached the standard of care in the community, and
(2) that the breach proximately caused the plaintiff’s
injuries.”

Milano by Milano v. Freed, 64 F.3d 91, 95 (2d Cir.

1995); see also Vale v. United States, No. 10-CV-4270 (PKC)(LB),
2015 WL 5773729 at *2 (E.D.N.Y. Sept. 30, 2015).

In satisfying

the first prong, “[i]t is well established in New York law that
‘unless the alleged act of malpractice falls within the
competence of a lay jury to evaluate, it is incumbent upon the
plaintiff to present expert testimony in support of the
allegations to establish a prima facie case of malpractice.’”
Sitts v. United States, 811 F.2d 736, 739 (2d Cir. 1987)
(quoting Keane v. Sloan-Kettering Institute for Cancer Research,
96 A.D.2d 505, 506, 464 N.Y.S. 548, 549 (N.Y. App. Div. 2d
1983)) (citations omitted).
In Sitts, the plaintiff faced a situation similar to the
one at issue in the instant case.

Sitts underwent a spinal

procedure at a VA hospital in Syracuse, New York.

During the

first procedure, the physicians removed tissue from the wrong
segment of his spine.

The doctors realized their mistake after

further testing, and remedied it with a corrective surgery
almost a year later.

Sitts brought a case against the doctors,

alleging medical malpractice under a theory of negligence.

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Sitts did not offer any expert testimony.

The United

States moved for summary judgment claiming that New York law
requires that a plaintiff produce expert testimony on the
grounds of causation and negligence in order to establish a
prima facie case for medical malpractice.

Sitts maintained that

the fact that his operation was performed at the wrong site was
evidence enough for a lay jury to conclude that he was treated
negligently without expert testimony.
The District Court granted the United States’ motion for
summary judgment and dismissed the case.

The Second Circuit

Court affirmed, focusing on the general rule in New York that,
unless an instance of malpractice would appear as such to a lay
jury, expert testimony is necessary to establish the appropriate
medical standard.

In New York, “[i]n order to show that the

defendant has not exercised ordinary and reasonable care, the
plaintiff ordinarily must show what the accepted standards of
practice were and that the defendant deviated from those
standards. . . .”

Id. at 739-40 (citations omitted).

The Court

observed that this requirement “is imposed in part because
‘without expert assistance a jury will often have no
understanding of what constitutes reasonable behavior in a
complex and technical profession such as medicine.’”

Id. at 740

(quoting Paul v. Boschenstein, 482 N.Y.S.2d 870, 872, 105 A.D.2d
248, 249 (N.Y. App. Div. 2d 1984) (abrogated on other grounds)).
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The Second Circuit recognized that there are cases in which
malpractice is so obvious that an ordinary lay jury will be able
to recognize it, such as “where a dentist pulled the wrong
tooth,” or “where the surgeon saws off the wrong leg.”

Id.

(citing Wenger v. Mollin, 264 N.Y. 656, 191 N.E. 611 (1934);
quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and
Keeton on the Law of Torts § 32, at 189 (5th ed. 1984)).

But

even for those cases, expert testimony “may be required to prove
that the negligence was the proximate cause of the injury
complained of.”

Id.

As a general proposition, “in the view of

the New York courts, the medical malpractice case in which no
expert medical testimony is required is rare.”
omitted).

Id. (citation

As a consequence, the Second Circuit concluded that

“[w]here [expert] evidence is not proffered, the defendant is
entitled to judgment as a matter of law . . . by means of . . .
the granting of a motion for summary judgment in opposition to
which the plaintiff fails to come forward with such evidence.”
Id. (citations omitted).
I find here that the amount of time that is standard in the
community for someone to receive medical treatment for a nonlife-threatening knee surgery is not within the general
knowledge of a lay person.

Martello must make a prima facie

showing of negligence through proffer of expert testimony

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showing that the care received falls below the community
standard, which he has failed to do.
The medical record in this case is uncontested.

The

factual timeline presented above reflects the following: at
intake on February 15, 2012, the BOP doctors knew of his knee
surgery.

But it was not until June 14, 2012 that doctors at a

BOP facility could be said to have become aware that he was
experiencing severe pain in his knee, possibly as the result of
the defective wire.

An x-ray was ordered, but doctors concluded

that the x-ray did not show any evidence of a broken wire from
his knee surgery.

On July 30, 2012, a physical exam revealed

physical evidence of knee problems, and the examining doctor
requested an appointment with an orthopedic specialist, a
request that was approved eleven days later.

An exam a month-

and-a-half thereafter, on September 25, revealed physical signs
of a defective wire in his knee.

Slightly more than another

month later, on November 2, Martello saw an orthopedic
specialist who diagnosed the problem and performed the procedure
to remove the wire on December 20, approximately a month-and-ahalf after his initial diagnosis.
The relevant question, as framed by the plaintiff, is
whether the amount of time Martello had to wait between
diagnosis of his knee issue and ultimate resolution of the issue
by surgery fell below the community standard of a reasonable
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time to wait for such a procedure.

The plaintiff concedes that

he does not argue that any negligence or malpractice occurred:
simply that the delay between Martello’s complaint of pain in
June and his surgery in December was negligent.
timeline is misleading.

But Martello’s

Although he did indeed first complain

of knee pain as the result of his surgery in June, an x-ray was
read that showed no signs of a broken wire.

If Martello does

not allege negligence in diagnosis, then he cannot start his
timeline in June.

A supportable start time for any assertion of

negligence is July 30, at which point his examining doctor did
notice swelling in his knee, requested his surgery records, and
requested a consultation with an orthopedic specialist on
Martello’s behalf.
After this point, there was a progression of medical
activity for Martello approximately once every month-and-a-half.
There was a further medical consultation, request and approval
for an orthopedic examination, the orthopedic examination, and
the ultimate surgery.

Whether this time horizon between signs

of a non-life-threatening injury and its diagnosis and ultimate
correction falls below community standards is not within the
knowledge of a lay person.

The amount of time is not so

significant as to be obviously negligent.

Five months may be an

acceptable amount of time to wait for such a procedure.

It

cannot, in any event, be said that the Otisville medical staff
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ignored Martello’s complaints.

This is not to diminish

recognition of the pain Martello may have felt, but simply to
say that medical scheduling takes time.

The average lay person

— and even a judicial officer without expert opinion evidence —
has no frame of reference as to what may or may not be a
reasonable time to wait for the orthopedic surgery prescribed
for Martello.
It was incumbent upon Martello to provide expert testimony
to support a prima facie case that the amount of time he waited
for his surgery after initial diagnosis fell below community
standards.

This burden is not particularly demanding because

the information being analyzed is not voluminous.

An orthopedic

surgeon could simply have reviewed Martello’s record to offer an
opinion whether or not the amount of time Martello waited for
his surgery would be considered within the normal range in the
community.

Martello had more than sufficient opportunity to

adduce such testimony.

He does not dispute any of the

underlying facts relied upon by the United States.

He has

submitted insufficient testimony to support even a prima facie
case that the delay was negligent.

Accordingly, I conclude that

a grant of summary judgment to the defendant is appropriate.

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IV. CONCLUSION
For the foregoing reasons, I GRANT the Defendant’s Motion
for Summary Judgment.

The Clerk shall enter judgment for the

Defendant.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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