JOHN MOULDS, District Judge.
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. §1983. This matter is before the court on cross motions for summary judgment on the question of whether Mercy Hospital of Folsom (Mercy or Mercy Hospital) complied with the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (EMTALA) when plaintiff arrived at Mercy's emergency room on the evening of June 1, 2003, and on pendent state law negligence and medical malpractice claims against Mercy. It is also before the court on the motion of defendant Dr. Gary Nugent to dismiss on the ground that the claims against him are time-barred.
This action is proceeding on claims raised in plaintiff's third amended complaint, filed July 14, 2005, against Mercy, California Department of Corrections and Rehabilitation (CDCR) Correctional Officers Sherburn
By separate orders, summary judgment was entered in favor of Mercy and denied to Sherburn and Lebeck.
On May 28, 2008, plaintiff filed a notice of appeal from the judgment entered on May 7, 2008. By order filed June 23, 2010, the United States Court of Appeals for the Ninth Circuit resolved the interlocutory appeal filed by plaintiff from the grant of summary judgment in favor of Mercy. The court of appeals affirmed the grant of summary judgment to Mercy on plaintiff's Eighth Amendment claim.
On July 2, 2010, this court granted all parties fifteen days to file a brief addressing whether the court should exercise supplemental jurisdiction over plaintiff's state law claims. Mercy did not respond to that order and now affirmatively represents that it has no opposition to the exercise of such jurisdiction and seeks adjudication of all claims on the merits.
On July 21, 2010, the court issued an order providing that the action would proceed on plaintiff's state law medical malpractice and negligence claims as well as on the EMTALA claim. After additional proceedings, by order filed January 28, 2011, the court noted that the matter had been referred for consideration of appointment of counsel and that the court would entertain a motion to appoint an expert witness from counsel should the court be successful in finding counsel to represent plaintiff.
On February 25, 2011, after receiving an extension of time to do so, Mercy filed the motion for summary judgment at bar. In relevant part, by order filed March 25, 2011, counsel for plaintiff and counsel for Mercy were directed to confer and submit to the court a proposed briefing schedule for Mercy's motion for summary judgment. The parties filed their proposed joint schedule on April 21, 2011.
On April 25, 2011, plaintiff filed, pro se, the pending cross-motion for summary judgment, together with a motion for an extension of time to file an opposition to Mercy's motion for summary judgment. On the same day, plaintiff filed, pro se, an opposition to the motion for summary judgment, a statement of undisputed facts in opposition to the motion, and objections to Mercy's request for judicial notice. By order filed May 2, 2011, the court adopted the briefing schedule proposed in the April 21, 2011 filing, and denied plaintiff's pro se cross motion for summary judgment and his motion for extension of time because he was represented by counsel. On May 20, 2011, counsel for plaintiff filed an opposition to Mercy's motion for summary judgment and a request pursuant to Rule 56(d) for a continuance to permit additional specific discovery on the appropriateness of the medical screening provided to plaintiff at Mercy on June 1, 2003.
On May 23, 2011, plaintiff filed a request to remove his court appointed attorney. On June 7, 2011, counsel for plaintiff filed a motion to withdraw as counsel for plaintiff. After a hearing on June 9, 2011 with plaintiff participating by telephone and counsel for plaintiff present, the court by written order filed June 21, 2011, granted counsel's motion to withdraw. In an order filed the same day, the court vacated that part of the May 2, 2011 order that denied plaintiff's cross-motion for summary judgment and set a briefing schedule on that motion, granted plaintiff's June 3, 2011 motion to file a supplemental opposition to Mercy's motion for summary judgment, indicated that plaintiff's supplemental opposition, filed the same day, would be considered, and granted Mercy ten days to file a supplemental reply. In addition, plaintiff sought and received an extension of time to file a reply brief in support of his cross-motion for summary judgment; plaintiff filed the reply brief on August 8, 2011.
Defendant Nugent's motion to dismiss was filed May 31, 2011.
Under summary judgment practice, the moving party
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed.
On October 22, 2004, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The claims against Mercy arise from an incident at California State Prison-Sacramento (CSP-Sacramento) on June 1, 2003 when plaintiff was slashed by another inmate with an inmate-manufactured weapon. Following the incident, plaintiff was transported to Mercy for emergency treatment. He was transferred from Mercy to the University of California Davis Medical Center (UC Davis). Plaintiff raises state law medical malpractice and negligence claims against Mercy alleging that Mercy "refused to treat plaintiff who had a serious medical need, on or about June 1, 2003." (Amended Complaint at 7.) The parties also contest whether Mercy violated the EMTALA by transferring plaintiff to UC Davis.
On June 1, 2003, plaintiff was incarcerated at CSP-Sacramento. On that day, plaintiff was slashed in the face with an inmate-manufactured weapon by another inmate. At approximately 5:59 p.m. plaintiff was transported by paramedics from CSP-Sacramento to Mercy Hospital. Plaintiff arrived at Mercy at approximately 6:25 p.m.
On arrival at Mercy, plaintiff was seen by Dr. Grant G. Nugent and R.N. Romano. The laceration to plaintiff's face measured 12 centimeters or 5 inches in length, it was 2 or 3 centimeters deep through the skin and all soft tissue structures to the buccal mucosa, which is the mucous membrane on the inside of the cheek. Declaration of Robert E. Buscho, M.D. in Support of Mercy Hospital of Folsom's Motion for Summary Judgment, filed February 25, 2011 (Buscho Declaration), at ¶ 7;
Gel foam bandages were put on plaintiff's wound. Pl.'s June 26, 2006 Aff. at 18.
Plaintiff's vital signs were checked during the two hours he was at Mercy, with his blood pressure and pulse rate being taken at least four different times. Buscho Declaration at ¶ 12; Ex. B to Pierson Declaration at MERCY 0006.
Plaintiff's wound was not sutured at Mercy but he was transferred to UC Davis for the suturing .
Once at UC Davis, plaintiff's wound was sutured layer by layer by a specialist who noted that both the facial nerve and the parotid gland were intact. Buscho Declaration at ¶ 9.
The EMTALA was enacted "to ensure that individuals, regardless of their ability to pay, receive adequate emergency medical care.
Defendant Mercy seeks summary judgment on plaintiff's EMTALA claim on the grounds that the undisputed facts show that the requirements of the EMTALA were complied with in connection with plaintiff's transfer to UCDavis. Specifically, defendant contends that (1) plaintiff was medically screened appropriately; and (2) plaintiff was stabilized prior to the transfer. In the alternative, Mercy contends that the transfer was proper under 42 U.S.C. § 13955dd(C). In his cross-motion for summary judgment, plaintiff contends that he was neither provided with a proper screening nor stabilized prior to the transfer.
Despite plaintiff's contentions to the contrary, the undisputed evidence shows that plaintiff was provided with a medical screening that identified the relevant medical condition.
The undisputed evidence also shows that plaintiff was "stabilized" within the meaning of the EMTALA prior to his transfer to UC Davis. Shortly after plaintiff arrived at Mercy, his blood pressure was recorded at 162/66 and his pulse was 90. Ex. B to Pearson Decl. at MERCY 0005.
At UC Davis, medical staff found that plaintiff's mucosa had been spared, his facial nerve was intact, and there was no involvement of the parotid duct.
In support of their motion for summary judgment, Mercy has provided a declaration from an emergency medicine physician who avers that plaintiff was "examined and stabilized while at Mercy", that he was "medically stable while at Mercy", and that it was therefore safe to transfer plaintiff to UC Davis. Declaration of Robert E. Buscho, M.D. in Support of Motion for Summary Judgment, filed February 25, 2011 at ¶¶ 8, 12.
Based on the evidence, the court finds that there is no triable issue of material fact as to whether the stabilization requirements of the EMTALA were complied with prior to plaintiff's transfer to UC Davis.
In the third amended complaint, plaintiff claims that Mercy and its staff were negligent and committed malpractice by "refusing to treat" plaintiff and in "failing to summons medical transportation." Third Amended Complaint, filed July 14, 2005, at 15. Mercy seeks summary judgment on these claims. Mercy contends that plaintiff's allegations give rise to only a medical malpractice claim, and that there is no genuine issue of material fact as to whether Mercy met the requisite standard of care. Mercy also contends that they are not liable for any alleged malpractice by defendant Nugent because he was not an agent or an employee of Mercy, and there is no contention that Mercy was negligent in its hiring and screening practices with respect to medical staff.
Under California law, "a plaintiff cannot, on the same facts, state causes of action for ordinary negligence as well as professional negligence, as a defendant has only one duty that can be measured by one standard of care under any given circumstances."
Professional negligence is defined in § 340.5 as
Cal. Code Civ. P. § 340.5. Here, as noted above, plaintiff alleges in relevant part that he was taken to Mercy and that the on duty physician, refused to treat him, denied him medical care, and did not summon medical transportation to take plaintiff to another hospital. Third Amended Complaint, at 15. These allegations give rise to a cause of action for professional negligence because they all describe acts or omissions to act "by a health care provider in the rendering of professional services." Cal. Code Civ. P. § 340.5. Thus, plaintiff's sole claim against Mercy is one for professional negligence.
In support of their motion for summary judgment, Mercy has presented the declaration of Dr. Buscho, who is, as noted above, an emergency medicine physician. Dr. Buscho avers avers in relevant part that the decision to transfer plaintiff to UC Davis "was entirely appropriate and within the standard of care," that "[t]he nurses and hospital personnel who treated [plaintiff] on June 1, 2003 met the applicable standard of care" and that based on his "education, training, and experience, it is [his] expert opinion that the care and treatment rendered to [plaintiff] while he was at Mercy Hospital of Folsom by the Mercy Hospital of Folsom nursing staff was entirely appropriate and met the requisite standard of care." Buscho Decl. at ¶ 16. Plaintiff has not presented any expert testimony of his own to rebut this evidence tendered by Mercy. Under California law,
In the opposition filed by his court-appointed attorney, plaintiff contends that the facts of plaintiff's claim fall within the "common knowledge" exception to the foregoing rule. "Expert evidence is not needed when the type of conduct required by the particular circumstances is within the common knowledge of laymen."
Plaintiff also suggests that Mercy was negligent per se because it violated provisions of California Health and Safety Code § 1317. "California law creates a rebuttable presumption of failure to exercise due care if a person violates a public regulation, the violation proximately causes an injury, the injury is of the type the regulation is designed to prevent, and the injured party is a type of person the regulation was meant to protect. Cal.Evid.Code § 669(a) (West Supp.1990);
Here, the undisputed evidence shows that Mercy provided a medical screening to plaintiff. The undisputed evidence also shows that the staff at Mercy did not "refuse to render" any care to plaintiff. The staff at Mercy provided stabilizing care, but did not provide full treatment for the laceration. In support of their motion for summary judgment, Mercy has presented declarations from Dr. Buscho and Dr. Nugent. Defendant Nugent avers that he examined plaintiff and determined that plaintiff's "laceration was `critical' due to the depth and severity, and therefore required closure by a plastic surgeon." Declaration of Grant G. Nugent, M.D. in Support of Mercy Hospital of Folsom's Motion for Summary Judgment, filed February 25, 2011 (Nugent Decl.), at ¶ 3. Defendant Nugent avers that he was "concerned that [plaintiff]'s facial nerve or parotid gland had been injured, both of which would require plastic surgery revision by a specialist."
Plaintiff notes that the reason for the transfer given in the medical records is that the Chief Medical Officer of the prison requested that plaintiff go to UC Davis. Ex. B to Pearson Decl. at MERCY 0002, 0004, 0007. The transfer summary specifically gives the reason for the transfer as "Dr. Borges CSP Sac Requested UCD".
Plaintiff contends that if, as the foregoing records suggest, plaintiff's transfer to UC Davis was for non-medical reasons, Mercy and its staffed breached their duty under California Health and Safety Code § 1317 to provide emergency services to plaintiff. However, the court need not reach this argument because there is no admissible evidence in the record that the transfer to UC Davis was the proximate cause of any additional injury to plaintiff beyond that sustained as a result of the laceration.
For the foregoing reasons, this court finds that plaintiff has failed to present any evidence, expert or otherwise, sufficient to create a triable issue of material fact as to whether Mercy was negligent in connection with the events of June 1, 2003. Mercy is entitled to summary judgment on plaintiff's state law claim.
For all of the foregoing reasons, Mercy's motion for summary judgment should be granted, and plaintiff's cross-motion for summary judgment should be denied.
As noted above, on May 31, 2011, defendant Nugent moved to dismiss the claims against him as time-barred. The claims against defendant Nugent are state law negligence and medical malpractice claims. In his motion, defendant Nugent contends that under the circumstances of this case plaintiff's sole cause of action against him is a claim for medical malpractice and that such a claim is barred by the statute of limitations.
For the reasons set forth
In accordance with the above, IT IS HEREBY ORDERED that plaintiff's May 20, 2011 request for appointment of an expert is denied; and
IT IS HEREBY RECOMMENDED that:
1. Plaintiff's May 20, 2011 Rule 56(d) request be denied;
2. Mercy's February 25, 2011 motion for summary judgment be granted;
3. Plaintiff's April 25, 2011 cross-motion for summary judgment be denied; and
4. The district court decline to exercise supplemental jurisdiction over plaintiff's sole state law claim, for medical malpractice, against defendant Nugent.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
