LAWRENCE K. KARLTON, Judge.
Plaintiff Charles Robert Gorton, a state prisoner, brings claims against Defendants Robert Hawkins and Sahir Naseer, physicians for the California Department of Corrections and Rehabilitation ("CDCR"), alleging that Defendants' delay in treatment of Plaintiff's kidney disorders constituted medical malpractice and violated his rights under the Eighth Amendment.
Pending before the court is Defendants' motion for summary judgment or, in the alternative, partial summary judgment. Defs' Mot., ECF No. 140. For the reasons provided herein, Defendants' motion is denied.
Plaintiff asserts that the delays in medical care provided by Defendants Hawkins and Naseer, primary care physicians at the Mule Creek State Prison ("MCSP"), constituted medical malpractice and deliberate indifference to Plaintiff's medical needs, contributing to Plaintiff's kidney deterioration and prolonged pain and suffering.
As to Defendant Hawkins, Plaintiff contends, in short, that, even though Plaintiff's "nephrotic syndrome," a kidney disorder, should have been apparent to Dr. Hawkins, the actions taken by Dr. Hawkins from March to May of 2007 resulted in harmful and unnecessary delays in Plaintiff's treatment.
As to Defendant Naseer, Plaintiff alleges,
1. On August 6, 2007, after a visit to U.C. Davis Medical Center for an appointment with a nephrologist, Plaintiff was seen at the prison clinic by Dr. Naseer, who indicate[d] on Plaintiff's chart, "No Nephrology report, will check with . . . UM Nurse."
2. On September 27, 2007, Plaintiff was again seen by Dr. Naseer, "who file[d] an[] RFS [request for services], on a `Routine' basis." Within the CDCR, a "routine" prioritization means that "an inmate will not receive speciality medical care for 3 months." Dr. Naseer wrote on Plaintiff's chart, "[inmate] has nephrotic syndrome, was seen 7/27/07 in UC Davis. Needs 3 month [follow-up] appt per UC Davis."
3. On December 11, 2007, after a December 5, 2007 follow-up appointment at U.C. Davis, Dr. Naseer indicated that "MCSP had not received any medical reports from the 12/5 UCD appointment." Plaintiff "informed Dr. Naseer about the ordered biopsy by Dr. Stevenson," a supervising physician at U.C. Davis, "[b]ut Dr. Naseer informed Plaintiff that he would not order anything based on the word of an inmate."
4. On March 4, 2008, following a February 13, 2008 appointment at U.C. Davis, Plaintiff "informed Dr. Naseer about the urgent need to perform a colonoscopy within 2-3 weeks per Dr. Don's instructions [from U.C. Davis]." "Dr. Naseer stated that because he didn't have any confirmation of this UCD order in Plaintiff's medical file, he would not order anything, especially based on the word of an inmate." However, "because Plaintiff was 50 years old, Dr. Naseer would order a colonoscopy for routine purposes." "[E]ven after MCSP "received the UCD medical report for the 2/13/08 visit, Dr. Naseer failed to update the RFS from `Routine' to `Urgent'."
In September 2007, Plaintiff, acting in
In his Board claim, Plaintiff makes the following assertions as to Dr. Naseer:
On October 22, 2007, Plaintiff received a response from the Board, acknowledging receipt of Plaintiff's claim and stating: "Based on its review of your claim, Board staff believes that the court system is the appropriate means for resolution of these claims, because the issues presented are complex and outside the scope of analysis and interpretation typically undertaken by the Board."
In an August 17, 2009 deposition, Plaintiff testified that, on September 27, 2007, "Dr. Naseer instead of filing a request for referral on an urgent basis filed it on a routine basis, and that gave the scheduler three months to file the appointment." Pl's Dep., ECF No. 140, Att. 4, at 18-19. Plaintiff continued that "it was Dr. Naseer's duty to file an urgent RFS instead of a routine RFS, and that . . . delayed my treatment even more. . . . I hold Dr. Naseer liable for deliberate indifference for depriving me of required medical care in a timely manner."
In response to counsel's question, "is there anything else that Dr. Naseer did or didn't do that you are claiming was improper?", Plaintiff replied, "No. That was the only complaint."
The parties agree that their experts have reached contrary conclusions as to whether the actions of Defendants Hawkins and Naseer fell within the applicable standard of care.
In short, Plaintiff's expert, Dr. David H. Lovett, a Professor of Medicine at the University of California San Francisco School of Medicine and Chief of the Nephrology Section at the San Francisco Veterans Administration Medical Center, concluded that Dr. Hawkins "acted outside the standard of care" by "failing to undertake reasonable efforts [to] respond to obvious indicators of nephrotic syndrome . . . from March 8 through June 22, 2007." Lovett Report, ECF No. 146, Att. 3, at ¶¶ 19-28. Noting that Plaintiff was seen by Dr. Naseer "[b]etween July of 2007 and January of 2008," Lovett concluded that Dr. Naseer "acted outside the standard of care" in his treatment of Plaintiff between March 2008 and May 2008.
Defendants' expert, Dr. Eric C. Disbrow, a private practitioner in Family Practice and Geriatric Medicine, concluded that "Dr. Hawkins met the standard of care. He treated what he could treat appropriately . . . . He requested referral to UCD Nephrology on 5/18/07 the day after the patient returned with a diagnosis of Nephrotic Syndrome. . . . He reviewed the diagnostic tests in a timely fashion and followed up appropriately." Disbrow Report, ECF No. 133, at 8-10. Dr. Disbrow further concluded, "Dr. Naseer met the standard of care. . . . He did what he could to move up the second UCD Nephrology visit one month . . . . He was very diligent in ordering lab and notifying the patient he would have appointments."
Defendants present two arguments in their motion for summary judgment.
First, Defendants argue that Plaintiff is barred from seeking damages for medical malpractice against Defendant Naseer for acts Plaintiff failed to allege in his tort claim filed with the VCGCB. Defs' Mot., ECF No. 140, at 11-13. Specifically, Defendants contend that Plaintiff's VCGCB claim "does not include any alleged wrongful acts which occurred
Second, Defendants argue that, because the parties' submitted expert testimony reached opposing conclusions on whether the Defendants' treatment fell within the applicable standard of care, "reasonable minds can differ as to whether their treatment was within the applicable standard of care" and, therefore, both Defendants are entitled to qualified immunity from suit.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
Consequently, "[s]ummary judgment must be denied" if the court "determines that a `genuine dispute as to [a] material fact' precludes immediate entry of judgment as a matter of law."
Under summary judgment practice, the moving party bears the initial responsibility of informing the district court of the basis for its motion, and "citing to particular parts of the materials in the record," Fed. R. Civ. P. 56(c)(1)(A), that show "that a fact cannot be ... disputed." Fed. R. Civ. P. 56(c)(1);
If the moving party meets its initial responsibility, the burden then shifts to the non-moving party to establish the existence of a genuine issue of material fact.
"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party."
For any state law cause of action seeking damages against a California state or local government entity, the plaintiff must demonstrate compliance with the California Government Claims Act ("Government Claims Act" or the "Act"), Cal. Gov. Code §§ 900 et seq. Pursuant to this act, presentation of a claim to the appropriate entity—here, the VCGCB—is a condition precedent to the commencement of a lawsuit for damages against the State of California or its agencies. Cal. Gov. Code §§ 905.2, 945.4;
The purpose of the Government Claims Act is said to be to give the proper Board the opportunity to investigate and evaluate the claim and, where appropriate, avoid litigation by settling meritorious claims.
"[A] claim need not contain the detail and specificity required of a pleading, but need only fairly describe what [the] entity is alleged to have done."
In his claim filed with the VCGCB, Plaintiff properly gave the Board notice of the basis of Plaintiff's medical malpractice claims against Dr. Naseer. Plaintiff predicated his malpractice claim against Dr. Naseer on what Plaintiff characterized as Dr. Naseer's "deliberate prolonged waiting and watching attitude" in treating Plaintiff's diagnosed kidney disorder. Plaintiff specifically referred to Dr. Naseer's failure to "expedite [] follow-up appointment[s]" and his failure to treat Plaintiff's diagnosed acute nephrotic syndrome. These allegations were sufficient to give the VCGCB the opportunity to investigate and evaluate Plaintiff's claims.
The court finds it unreasonable to expect Plaintiff to have filed amended claims with the VCGCB related to Dr. Naseer's ongoing treatment of Plaintiff's kidney disorder, either during the pendency of the Board's review of Plaintiff's claim, or after the Board rejected Plaintiff's claims and explicitly indicated that the "court system is the appropriate means for resolution of these claims." It would defy reason to require Plaintiff to continually return to the Board after each encounter with Dr. Naseer, when the Board specifically provided that Plaintiff's claims would be more properly resolved through litigation.
In his federal proceeding, Plaintiff's medical malpractice claims against Dr. Naseer are based on the same alleged delay in Dr. Naseer's treatment of Plaintiff's acute nephrotic syndrome as Plaintiff's malpractice claim against Dr. Naseer, as asserted to the VCGCB. The factual allegations included in his amended complaint, which occurred after Plaintiff's VCGCB claim was filed, merely provide further detail to Plaintiff's VCGCB claim. Thus, the factual allegations against Dr. Naseer in Plaintiff's amended complaint fall within the ambit of Plaintiff's VCGCB claim.
Defendants' motion for summary judgment based on the California Government Claims Act is DENIED.
The doctrine of qualified immunity "protects government officials from `liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"
Drawing all reasonable inferences in favor of the non-moving party, Plaintiff has established that a constitutional violation occurred. In order to establish a constitutional violation under the Eighth Amendment, Plaintiff must show that Defendants were "deliberately indifferent" to his "serious medical needs."
In the Ninth Circuit, the deliberate indifference test is comprised of two parts.
Second, Plaintiff must show that Defendants' responses to this need were deliberately indifferent.
Additionally, the constitutional right Plaintiff alleges that Defendants violated—the Eighth Amendment prohibition on cruel and unusual punishment in the context of inmate medical care—is unquestionably clearly established law.
Defendants argue that, because the experts reached opposing conclusions, "reasonable minds can differ as to whether their treatment was within the applicable standard of care" and, therefore, Defendants are entitled to qualified immunity. Defendants go too far in assuming that a fact-finder would find the testimony of Dr. Disbrow at least as persuasive as that of Dr. Lovett. The weight given to each expert's testimony, and thus the determination as to whether Defendants' actions constituted deliberate indifference, requires a factual, as opposed to a legal, determination that is for the jury. That is, the experts' conflicting testimony raises, as opposed to obviates, a genuine dispute over a material fact to be resolved at trial.
Defendants therefore fail to prove the absence of a genuine issue of material fact and their motion for summary judgment based on qualified immunity is DENIED.
For the foregoing reasons, Defendants' motion for summary judgment is DENIED.
