STEVENS v. ZICKEFOOSE et al
Filing
135
OPINION. Signed by Judge Renee Marie Bumb on 3/23/2016. (tf, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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RAUL J. STEVENS,
Plaintiff,
v.
DONNA ZICKEFOOSE, et al.
Defendants.
Civ. Action No. 12-3011 (RMB)
OPINION
APPEARANCES:
Deepa J. Zavatsky, Esq.
Reed Smith LLP
Princeton Forrestal Village
136 Main Street, Suite 250
Princeton, NJ 08540
Counsel for Plaintiff
Mark A. Petraske, Esq.
Buckley Theroux Kine & Petraske, LLC
932 State Road
Princeton, NJ 08540
Counsel for Defendant Denise M. Nugent,
as Executrix of the Estate of Dennis Nugent, M.D.
BUMB, District Judge
Plaintiff Raul J. Stevens, a prisoner incarcerated in FCI
Fort
Dix,
in
Fort
Dix,
New
Jersey,
filed
his
Third
Amended
Complaint (“TAC”) in this action on November 9, 2015. (TAC, ECF.
No.
114.)
Stevens
alleged
Defendant
Dr.
Dennis
Nugent,
an
urologist, misdiagnosed him with benign prostate hyperplasia,
1
failed
to
make
a
differential
diagnosis,
performed
an
unnecessary Transurethral Needle Ablation (“TUNA”) procedure on
him
without
his
informed
consent,
and
refused
to
stop
the
procedure when Plaintiff complained of severe pain.
This matter comes before this Court upon the motion for
summary judgment by Denise M. Nugent as Executrix of the Estate
of
Dennis
Plaintiff’s
Nugent,
M.D.
malpractice
(ECF
No.
claims
121.)
must
be
Defendant
dismissed
contends
because
Plaintiff failed, under New Jersey law, to obtain the requisite
Affidavit of Merit and expert report from an urologist. (Def’s
Brief, ECF No. 121-1.)
Plaintiff opposed the motion for summary judgment. (Pl’s
Mem. of Law in Opp. to Mot. for S.J. by Defendant Denise M.
Nugent as Executrix of the Estate of Dennis Nugent, M.D. (“Pl’s
brief,” ECF No. 130.) He argues New Jersey law does not require
him to obtain an Affidavit of Merit or expert report from an
urologist because his malpractice claims of failure to provide a
differential diagnosis, lack of informed consent, and failure to
assure properly functioning anesthesia, are standards of general
medical care not urological care. Defendant Nugent filed a reply
brief in support of the motion for summary judgment (“Def’s
Reply”, ECF No. 133.)
This Court has considered the pleadings, motions, briefs
and supporting documents, and will decide the motion on the
2
papers, pursuant to Federal Rule of Civil Procedure 78(b). For
the reasons explained below, the Court will grant Defendant’s
motion for summary judgment in part and deny it in part.
I.
Statement of Undisputed Material Facts
Plaintiff
medical
filed
this
malpractice
action
and
other
on
May
claims
21,
2012,
against
alleging
Dr.
Nugent.
(Statement of Undisputed Material Facts, ECF No. 130-1, ¶1.)
Defendant
Nugent’s
contained
a
N.J.S.A.
Answer
demand
2A:53A-26
for
et
an
seq.
to
the
Second
Affidavit
(Id.,
of
¶9.)
Amended
Merit
On
Complaint
pursuant
March
3,
to
2015,
Plaintiff filed the Affidavit of Merit, supporting Plaintiff’s
malpractice claim against Dr. Nugent, by Dr. Ankush K. Bansal,
who is board certified in Internal Medicine by the American
Board of Internal Medicine. (Id., ¶10.) Dr. Bansal also authored
an expert report discussing the care Dr. Nugent provided to
Plaintiff. (Id., ¶16.)
Dr. Nugent was a board certified urologist. (Id., ¶11.) Dr.
Bansal is not board certified in urology, and he is not trained
to do urological procedures. (Id., ¶21, 22, 23.)
After evaluating Plaintiff for urinary symptoms including
urinary frequency, nocturia, diminished force of urinary stream,
hematuria
and
other
non-urological
3
complaints,
Dr.
Nugent
recommended and later performed a TUNA procedure1 on Plaintiff in
2009. (Id., ¶18.)
II.
DISCUSSION
A.
Summary Judgment Standard
Summary Judgment is proper where the moving party “shows
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); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir.
1999). The moving party has the burden to show there is an
absence
of
evidence
to
support
the
nonmoving
party’s
case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
A party asserting that a fact is genuinely disputed must
support
the
assertion
by
citing
materials
in
the
record,
including depositions, documents, affidavits or declarations or
other materials. Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be based on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). “If a
party fails to properly support an assertion of fact . . . the
1
“Transurethral needle ablation (TUNA) is an outpatient
procedure to treat urinary symptoms caused by an enlarged
prostate, a condition known as benign prostatic hyperplasia
(BPH). This procedure is also called radiofrequency ablation or
RF
therapy.”
Available
at
http://www.mayoclinic.org/testsprocedures/tuna/basics/definition/prc-20020196
4
court may . . . grant summary judgment . . .” Fed. R. Civ. P.
56(e).
In determining whether there is a genuine dispute of a
material fact, the court must view the facts in the light most
favorable
to
the
non-moving
party
and
make
all
reasonable
inferences from those facts. Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact raises a
genuine issue “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
B.
Whether Plaintiff Obtained an Appropriate Affidavit of
Merit as Required to Pursue a Medical Malpractice
Claim; and Whether Plaintiff’s Expert is Qualified to
Offer an Expert Opinion Against Defendant Nugent
Pursuant to N.J.S.A. 2A:53A-41.
In New Jersey an Affidavit of Merit is required in certain
actions against licensed persons. N.J.S.A. 2A:53A-27 provides:
In any action for damages for personal
injuries . . . resulting from an alleged act
of malpractice or negligence by a licensed
person in his profession or occupation, the
plaintiff shall, within 60 days following
the date of filing of the answer to the
complaint by the defendant, provide each
defendant
with
an
affidavit
of
an
appropriate
licensed
person
that
there
exists a reasonable probability that the
care,
skill
or
knowledge
exercised
or
exhibited in the treatment, practice or work
that is the subject of the complaint, fell
outside
acceptable
professional
or
occupational
standards
or
treatment
practices. The court may grant no more than
one additional period, not to exceed 60
5
days, to file the affidavit pursuant to this
section, upon a finding of good cause.
In the case of an action for medical
malpractice,
the
person
executing
the
affidavit shall meet the requirements of a
person who provides expert testimony or
executes an affidavit as set forth in
section 7 of P.L.2004, c. 17 (C.2A:53A-41).
. . .
N.J.S.A. 2A:53A-41 requires:
In
an
action
alleging
medical
malpractice, a person shall not give expert
testimony or execute an affidavit pursuant
to the provisions of P.L.1995, c. 139
(C.2A:53A-26 et seq.) on the appropriate
standard of practice or care unless the
person is licensed as a physician or other
health care professional in the United
States and meets the following criteria:
a. If the party against whom or on
whose behalf the testimony is offered is a
specialist or subspecialist recognized by
the American Board of Medical Specialties or
the American Osteopathic Association and the
care or treatment at issue involves that
specialty or subspecialty recognized by the
American Board of Medical Specialties or the
American Osteopathic Association, the person
providing
the
testimony
shall
have
specialized at the time of the occurrence
that is the basis for the action in the same
specialty or subspecialty, recognized by the
American Board of Medical Specialties or the
American Osteopathic Association, as the
party against whom or on whose behalf the
testimony is offered, and if the person
against
whom
or
on
whose
behalf
the
testimony
is
being
offered
is
board
certified and the care or treatment at issue
involves
that
board
specialty
or
subspecialty recognized by the American
Board of Medical Specialties or the American
6
Osteopathic Association, the expert witness
shall be:
(1) a physician credentialed by a
hospital to treat patients for the medical
condition, or to perform the procedure, that
is the basis for the claim or action; or
(2)
a
specialist
or
subspecialist
recognized by the American Board of Medical
Specialties or the American Osteopathic
Association who is board certified in the
same specialty or subspecialty, recognized
by the American Board of Medical Specialties
or the American Osteopathic Association, and
during the year immediately preceding the
date of the occurrence that is the basis for
the claim or action, shall have devoted a
majority of his professional time to either:
(a) the active clinical practice of the
same health care profession in which the
defendant is licensed, and, if the defendant
is a specialist or subspecialist recognized
by the American Board of Medical Specialties
or the American Osteopathic Association, the
active clinical practice of that specialty
or subspecialty recognized by the American
Board of Medical Specialties or the American
Osteopathic Association; or
(b) the instruction of students in an
accredited medical school, other accredited
health professional school or accredited
residency or clinical research program in
the same health care profession in which the
defendant is licensed, and, if that party is
a specialist or subspecialist recognized by
the American Board of Medical Specialties or
the American Osteopathic Association, an
accredited
medical
school,
health
professional school or accredited residency
or clinical research program in the same
specialty or subspecialty recognized by the
American Board of Medical Specialties or the
American Osteopathic Association; or
7
(c) both.
. . .
“[A]n
expert
must
have
the
same
type
of
practice
and
possess the same credentials, as applicable, as the defendant
health care provider, unless waived by the court.” Nicholas v.
Mynster, 213 N.J. 463, 479 (2013) (quoting Assembly Health &
Human Services Committee, Statement to Assembly Bill No. 50 at
20 (Mar. 4, 2004)). When a physician is a specialist and the
basis
of
specialty,
the
the
malpractice
action
“involves”
challenging
expert
must
the
practice
physician's
in
the
same
specialty. See Buck [v. Henry,] 207 N.J. [377,] 391 [2011]. A
medical expert must be a specialist in the same field in which
the defendant physician specializes; there are no exceptions to
that requirement other than the waiver provision of N.J.S.A.
2A:53A–41(c). . . Id. at 481-82.
In determining whether an affidavit of merit satisfies the
statute:
the
first
inquiry
must
be
whether
a
physician
is
a
specialist
or
general
practitioner.
If
the
physician
is
a
specialist, then the second inquiry must be
whether the treatment that is the basis of
the
malpractice
action
involves
the
physician’s specialty. When the treatment
“involves” the physician’s specialty, the
equivalency requirements apply, otherwise
the specialist is subject to the same
affidavit requirements as if he were a
general practitioner.
8
Buck, 207 N.J. at 391.
Under the statute, the New Jersey Supreme Court looks to
whether
“the
claim's
underlying
factual
allegations
require
proof of a deviation from the professional standard of care
applicable to that specific profession.” Couri v. Gardner, 173
N.J. 328, 340 (2002).
In
medical
addition
to
malpractice
present
expert
the
claim
testimony
Affidavit
in
New
of
Merit,
Jersey,
establishing
“a
(1)
to
establish
plaintiff
the
a
must
applicable
standard of care, (2) deviation from that standard of care; and
(3) that the deviation proximately caused the injury.” Gardner
v.
Pawliw,
150
N.J.
359,
375
(1997).
If
Plaintiff
does
not
present expert testimony to establish the relevant standard of
care, breach of that standard, and causal connection between the
breach and the Plaintiff’s injury, “the case is not sufficient
for determination by the jury.” Rosenberg v. Tavorath, 352 N.J.
Super. 385, 399 (N.J. Super. Ct. App. Div. 2002) (citations
omitted).
Defendant Nugent argues that the basis of this malpractice
action involves a condition and treatment within the specialty
of urology, in which Dr. Nugent was board certified. (Id. at
11.)
Therefore,
Plaintiff’s
malpractice
claims
should
be
dismissed with prejudice because Plaintiff failed to provide an
Affidavit of Merit from an appropriately licensed professional,
9
as required by New Jersey law. (Def’s Brief, ECF No. 121-1 at 78.)
Plaintiff’s
expert,
Dr.
Bansal
is
board
certified
in
internal medicine but not in urology. (Id.)
Plaintiff contends his claims against Dr. Nugent “relate
solely
to
duties
that
surround
every
medical
professional,
regardless of specialty.” (Pl’s Brief, ECF No. 130 at 13.) For
instance,
he
asserts
that
failure
to
conduct
a
differential
diagnosis is a requirement of general medical practice. (Id. at
14.) Additionally, every physician has a duty to obtain informed
consent for treatment. (Id. at 16.) Finally, it is a general
medical duty “and simple common sense” . . . “that a doctor must
not continue a procedure after the patient shows signs of pain
or distress.” (Id. at 17.)
1.
Failure to Conduct a Differential Diagnosis
Applying the first step of the two-step inquiry announced
in Buck, there is no question that Dr. Nugent is a urologist.
The second inquiry is whether the treatment that is the basis of
the malpractice action involves the physician’s specialty.
The
TUNA
procedure
is
the
basis
for
this
malpractice
action. Plaintiff claims that Dr. Nugent failed to rule out
other
causes
or
exhaust
other
treatments
for
his
urinary
symptoms before performing the procedure. This requires proof of
the
following:
(1)
what
other
conditions
an
urologist
would
investigate before performing the TUNA, (2) the harm that might
10
result from not investigating other causes before performing the
TUNA; (3) what other treatments were available for Plaintiff’s
symptoms; and (4) why such treatments are preferable to the TUNA
procedure.
The TUNA procedure is urological in nature. Therefore, New
Jersey law required Plaintiff to have an Affidavit of Merit to
bring his malpractice claim that Dr. Nugent failed to conduct a
differential
diagnosis
before
performing
the
TUNA
procedure.
Furthermore, to establish his claim, Plaintiff would be required
to
present
expert
testimony
of
an
urologist
regarding
the
proximate cause of Plaintiff’s alleged injury of continued and
increased urinary symptoms.
2.
Failure to Obtain Informed Consent
Plaintiff
also
claims
Dr.
Nugent
failed
to
establish
informed consent before doing the TUNA procedure. In the TAC,
Plaintiff alleged he initially refused. (TAC, ECF No. 114, ¶77.)
Dr.
Nugent
told
Plaintiff
“that
if
he
underwent
the
TUNA
procedure, his ‘urinary stream would be as strong as that of a
20 year old.’” (Id., ¶269.) Plaintiff ultimately consented to
the
TUNA
procedure
because
the
Federal
Defendants
threatened
that he would not be offered any other treatment if he refused
the TUNA. (Id., ¶81.) Plaintiff alleges he was never informed of
risks associated with the TUNA procedure, and he was not given
11
any written materials regarding the procedure. (Id., ¶¶100-103,
105.) He did not sign a written consent form. (Id., ¶106.)
When
consent,
a
the
plaintiff
action
alleges
is
for
failure
negligence
to
obtain
rather
than
informed
battery.
Matthies v. Mastromonaco, 160 N.J. 26, 35 (1999). “In informed
consent
analysis,
the
decisive
factor
is
.
.
.
whether
the
physician adequately presents the material facts so that the
patient can make an informed decision.” Id. at 36. “[P]roof of a
risk recognized by the professional community must come from a
qualified expert.” Chamberlain v. Giampapa, 210 F.3d 154, 161
(3d Cir. 2000).
To prove his claim, Plaintiff must present evidence of the
risks of undergoing a TUNA procedure. A urologist is required to
identify those risks. Therefore, under New Jersey law, Plaintiff
was required to obtain an Affidavit of Merit from an urologist
to substantiate his informed consent claim.
Failure to provide an Affidavit of Merit “shall be deemed a
failure to state a cause of action.” N.J.S.A. 2A:53A-29; see
Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003)
(failure to timely file the Affidavit of Merit will result in
dismissal with prejudice.) Therefore, Plaintiff’s claims that
Dr. Nugent failed to conduct a differential diagnosis and failed
to obtain informed consent before doing the TUNA procedure will
be dismissed with prejudice. Additionally, Plaintiff’s battery
12
claim against Dr. Nugent (TAC, ECF No. 114, ¶¶266-75) is based
on lack of informed consent, and it will also be dismissed for
failure to obtain an Affidavit of Merit from a urologist.
3.
Failure to Stop Procedure When Anesthesia Failed
In the TAC, Plaintiff alleged:
108.
Immediately before the procedure, Dr.
Nugent administered an injection purporting
to be a local anesthetic, allegedly to
prevent Plaintiff from feeling pain during
the procedure.
. . .
110.
Plaintiff
continued
to
feel
significant
pain
during
the
procedure,
including an excruciating burning feeling
within his stomach and colon.
111.
As a result of this apparent failure
of
anesthesia,
Plaintiff
experienced
agonizing pain during the TUNA procedure . .
.
112.
Plaintiff repeatedly requested in the
middle of the procedure that the TUNA be
stopped and that Dr. Nugent cease any
further invasive action on his prostrate. Dr
Nugent did not comply, and continued to act
upon Plaintiff, stating that he was “almost
done, almost there,” and that there were
just a few minutes more.
(TAC, ECF No. 114.)
There is a “common knowledge” exception to New Jersey’s
Affidavit of Merit requirement. Bender v. Walgreen Eastern Co.,
Inc., 399 N.J.Super 584, 590 (N.J. Super. Ct. App. Div. 2008).
“The
doctrine
.
.
.
is
appropriately
invoked
when
the
‘carelessness of the defendant is readily apparent to anyone of
13
average
intelligence
and
ordinary
experience.’”
Id.
(quoting
Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 46970, 734 A.2d 778 (1999) (quoting Rosenberg ex rel. Rosenberg v.
Cahill,
99
N.J.
318,
‘common
knowledge’
325,
492
exception
A.2d
371
recognized
(1985)).”
in
Id.
Hubbard
“The
[ex
rel
Hubbard v. Reed, 168 N.J. 387 (2001)] applies only ‘when an
expert will not be called to testify ‘that the care, skill or
knowledge
...
[of
the
defendant]
fell
outside
acceptable
professional or occupational standards or treatment practices.’”
168 N.J. at 390, 774 A.2d 495 (quoting N.J.S.A. 2A:53A-27).”
Bender, 399 N.J.Super at 592.
Plaintiff
contends
that
it
is
“simple
common
sense
and
knowledge, that a doctor must not continue a procedure after the
patient shows signs of pain or distress.” (Pl’s Brief, ECF No.
130 at 17.) The Court agrees, and will not dismiss this claim
for failure to obtain an Affidavit of Merit from an urologist.
C.
Whether Plaintiff’s Claims for Emotional Distress and
Deliberate Indifference under Bivens2 Require Expert
Testimony Under New Jersey Law
The parties disagree as to whether the New Jersey Affidavit
of
Merit
statute
applies
to
Plaintiff’s
2
claims
of
battery,
In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Supreme Court held that a
plaintiff may bring a federal cause of action for damages
against a federal actor for violation of the Fourth Amendment.
14
emotional distress and deliberate indifference. (Pl’s Brief, ECF
No. 130 at 25, 42.)
1.
Deliberate Indifference
Plaintiff alleged Dr. Nugent violated his Eighth Amendment
Right to be free from Cruel and Unusual Punishment. (TAC, ECF
No. 114, ¶¶242-255). “Compliance with the affidavit of merit
statute is not a prerequisite for a federal civil rights action
against a doctor who is deliberately indifferent to his or her
patient's medical needs.” Hill Intern., Inc. v. Atlantic City
Bod of Educ., 438 NJ Super 562, 591 (NJ Super Ct App. Div. Dec.
30, 2014). Thus, the Court will not grant summary judgment to
Defendant
Nugent
appropriate
expert
for
Plaintiff’s
affidavit
to
failure
support
to
his
obtain
the
constitutional
claim.
2.
In
Negligent and Intentional Infliction of Emotional
Distress
Count
Four
of
the
TAC,
Plaintiff
alleged
Defendant
Nugent’s conduct, particularly in performing the TUNA without
functioning anesthesia, amounted to intentional infliction of
emotional distress. (TAC, ¶¶276-83.) In Count Five, Plaintiff
alleged
Dr.
Plaintiff’s
embarrassment
Nugent’s
negligent
increasing
medical
from
his
treatment
deterioration
uncontrollable
289.)
15
foreseeably
and
symptoms.
caused
shame
(TAC,
and
¶¶284-
In
Couri
v.
Gardner,
the
New
Jersey
Supreme
Court
announced:
“[W]hen presented with a tort or contract
claim
asserted
against
a
professional
specified
in
the
statute,
rather
than
focusing on whether the claim is denominated
as tort or contract, attorneys and courts
should determine if the claim's underlying
factual allegations require proof of a
deviation from the professional standard of
care applicable to that specific profession.
If such proof is required, an affidavit of
merit is required for that claim, unless
some exception applies. See Hubbard, supra,
168 N.J. at 390, 774 A.2d 495 (holding that
an affidavit of merit is not required in
“common knowledge” cases when an expert will
not be called to testify “ ‘that the care
skill or knowledge ... [of the defendant]
fell outside acceptable professional or
occupational
standards
or
treatment
practices'”) (citing N.J.S.A. 2A:53A–27).
173 N.J. 328, 340 (2002).
As discussed above, Plaintiff’s claim that Defendant Nugent
continued to perform the TUNA procedure after Plaintiff asked
him to stop because he was in agonizing pain is subject to the
common knowledge exception of the Affidavit of Merit statute.
Therefore, Plaintiff’s intentional and negligent infliction of
emotional
distress
claims
based
failing
to
stop
the
TUNA
procedure will be allowed to proceed without an Affidavit of
Merit from an urologist.
Plaintiff also alleged negligent infliction of emotional
distress
claim
because
Dr.
Nugent
16
failed
to
perform
a
differential diagnosis for his symptoms and failed to try other
treatment
claim
options
will
before
require
proof
performing
TUNA
deviation
of
the
from
procedure.
a
This
professional
standard of care. Therefore, the Court will dismiss this claim
for failure to obtain an Affidavit of Merit from a urologist.
See
Romano
v.
Brown,
Civil
No.
1:04-cv-4346(FLW),
2006
WL
2376913 (D.N.J. Aug. 16, 2006) (dismissing emotional distress
claims
where
claims
required
expert
testimony
regarding
treatment of HIV infection, and whether deviation in standard of
care caused distress).
D.
Whether Plaintiff Failed to Establish a Claim under
the Eighth Amendment for Deliberate Indifference to a
Serious Medical Need
Plaintiff alleges the following facts in support of his
deliberate indifference claim. (Pl’s Brief, ECF No. 130 at 40.)
First, Dr. Nugent requested that Plaintiff have a neurological
consultation before the TUNA procedure, but he conducted the
potentially
unnecessary
neurological
cause
of
procedure
Plaintiff’s
without
symptoms.
ruling
(Id.
at
out
a
40-41.)
Second, Dr. Nugent continued to perform the TUNA procedure after
Plaintiff informed him that he was in agonizing pain and asked
him to stop. (Id. at 41.)
Defendant Nugent replied that even if the TUNA procedure
was
not
the
proper
choice
to
treat
Plaintiff’s
urological
symptoms and prostatic obstruction, performing the procedure did
17
not amount to deliberate indifference. (Def’s Reply, ECF No. 133
at 12.) Regarding Plaintiff’s claim that Dr. Nugent performed
the TUNA without adequate anesthesia, Defendant argues this is a
medical negligence claim that requires an expert opinion from a
qualified expert. (Id.)
“[D]eliberate indifference to a substantial risk of serious
harm to an inmate violates the Eighth Amendment.” Farmer v.
Brennan, 511 U.S. 825, 828 (1994). Deliberate indifference is
more than negligence. Id. at 835 (citing Estelle v. Gamble, 429
U.S.
97,
medical
104
(1976)).
needs
of
“[Deliberate
prisoners
indifference
constitutes
the
to
serious
‘unnecessary
and
wanton infliction of pain.’” Estelle, 429 U.S. at 104 (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
Deliberate indifference may be found when a prison official
“knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” The deliberate
indifference standard is met “when a doctor is ‘intentionally
inflicting pain on [a] prisoner[].’” Spruill v. Gillis, 372 F.3d
218, 235 (3d Cir. 2004) (quoting White v. Napoleon, 897 F.2d
103, 109 (3d Cir. 1990)).
To
claim
the
rests
extent
on
that
Plaintiff’s
allegations
that
18
Dr.
deliberate
Nugent
indifference
misdiagnosed
and
improperly treated his condition, the claim does not rise to the
level of deliberate indifference. See Weigher v. Prison Health
Services,
402
F.
App’x
668,
670
(3d
Cir.
2010)
(“claim
of
misdiagnosis would sound in negligence as a malpractice suit,
and
does
not
constitute
deliberate
indifference”);
Monmouth
County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
Cir. 1987) (disagreement as to proper medical care does not
support a claim of Eighth Amendment violation).
Plaintiff also alleged he complained of severe pain during
the TUNA procedure and repeatedly asked Dr. Nugent to stop, but
Dr. Nugent responded only by repeating that he was almost done.
Accepting
as
true
Plaintiff’s
allegation
that
he
was
in
agonizing pain during the TUNA procedure caused by the failure
of
anesthesia,
Plaintiff
stated
an
Eighth
Amendment
claim
against Dr. Nugent. See Spruill, 372 F.3d 218, 237 (3d Cir.
2004) (finding the plaintiff stated a deliberate indifference
claim by alleging physician twisted his legs like a pretzel,
after the plaintiff repeatedly told him the exam was causing
increased pain); Glenn v. Barua, 252 F. App’x 493, 497 (3d Cir.
2007) (finding the plaintiff stated a deliberate indifference
claim with allegation that his cast had broken and was poking
into his leg and causing pain, but the doctor refused to do
anything.)
IV.
CONCLUSION
19
For the reasons discussed above, in the accompanying Order
filed herewith, the Court will grant Defendant Nugent’s motion
for summary judgment on Plaintiff’s malpractice claims for: (1)
failing
to
perform
a
differential
diagnosis;
(2)
failure
to
obtain informed consent; (3) battery based on lack of informed
consent; and (4) negligent infliction of emotional distress for
misdiagnosis and performing the TUNA procedure. The Court will
deny
Defendant
Nugent’s
motion
for
summary
judgment
on
Plaintiff’s claims of Eighth Amendment violation by deliberate
indifference to his serious medical needs, and intentional and
negligent infliction of emotional distress for failing to stop
the TUNA procedure upon Plaintiff’s request.
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
Dated: March 23, 2016
20
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