Opinion
Civil Action No. 4:02-CV-685-BE.
September 27, 2004
MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pending before the Court for consideration is the Defendant's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
A. STATEMENT OF THE CASE
Brown was an inmate at the Federal Medical Center Carswell (FMC Carswell) from 1995 until her release on August 23, 2004. On October 4, 1999, Brown was standing in the commissary line at FMC Carswell when another inmate in an motorized wheelchair ran over Brown's right foot. On October 5, 1999, Brown sought treatment at the FMC Carswell medical clinic for the injury to her foot. (Plf. App. C, Exh. A). She was examined by a mid-level medical practitioner at the clinic, and her injury was treated with ice-packs and anti-inflammatory medications. (Def. Exh. 1, App. at 001). On October 13, 1999, Brown was re-evaluated by a practitioner at the clinic and was diagnosed with an ankle sprain. (Plf. App. C, Exh. B; Def. Exh. 1, App. at 002). She was instructed to use her ice packs, elevate her right ankle, and take Motrin as prescribed.
On October 28, 1999, x-rays were taken of Brown's right foot. Wayne Johnson, D.O., reviewed the x-rays and found sclerotic changes within the navicular bone that were most likely due to an old trauma. (Plf. App. C, Exh. C; Def. Exh. 1, App. at 002). There were no recent fractures, and mild cortical bone irregularity along the tuft of Brown's right great toe remained unchanged when compared with study made on August 5, 1998. (Plf. App. C, Exh. C).
Brown had reported stubbing her right big toe in June 1998, and the x-rays from August 1998 were taken to evaluate this injury. She had sustained a laceration to her toe and was provided with Augmentin and antibiotic ointment, and was instructed to soak her right foot in hydrogen peroxide daily. (Def. Exh. 1, App. at 003).
On November, 16, 1999, Brown was treated by a physician's assistant for persistent pain and swelling in her right foot. (Plf. App. C, Exh. D). The attending physician ordered a bone scan to rule out possible osteomyelitis. Brown was prescribed an antibiotic and Motrin for pain. (Def. Exh. 1, App. at 002). The bone scan was performed on December 6, 1999 and revealed increased radio nuclide activity on all three phases of the mid-right foot. These findings were considered worrisome for septic arthritis as opposed to osteomyelitis or other etiology. (Plf. App. C, Exh. E).
Osteomyelitis is an inflammation of bone caused by an infection. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1289 (29th ed. 2000).
On February 1, 2000, Brown was referred to an orthopedic surgeon because of the abnormal bone scan. The orthopedic surgeon recommended a bone biopsy and tentatively concluded that Brown had osteomyelitis. (Def. Exh. 1, App. at 002). Brown was referred to a podiatrist for further treatment.
On May 9, 2000, Glen A. Beede, D.P.M., diagnosed Brown with advanced Charcot's arthopathy. Charcot's arthropathy is a condition often found in patients with long-term diabetes, elevated blood sugars, peripheral neuropathy, and possible trauma. (Plf. App. C, Exh. L; Def. Exh. 1, App. at 003). Beede stated that the wheelchair incident might be the inciting event that stimulated Brown's Charcot arthropathy. Beede ordered Brown to wear a non-weight bearing cast boot for six to eight weeks until the third stage of Charcot's arthropathy, when ambulation might resume. (Plf. App. C, Exh. L; Def. Exh. 1, App. at 002). Beede recommended Brown wear custom insoles once the swelling subsided. Brown was evaluated for custom insoles and shoes on June 13, 2001. (Def. Exh. 1, App. at 003).
Brown complains of a permanently deformed foot and alleges that she was provided negligent medical care in the treatment of her injury. She further alleges that FMC Carswell was negligent in providing proper safety instructions to inmates who use wheelchairs in the facility. Brown seeks damages in the amount of $10,000,000. (Joint Status Report, filed 11/20/03, at 2).
B. STANDARD OF REVIEW
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party bears the burden of informing the court of the basis for its belief that there is a lack of a genuine issue of material fact for trial, and of identifying those portions of the record that demonstrate such. Celotex, 477 U.S. at 323. In determining whether summary judgment is appropriate, the court must view the evidence introduced and all factual inferences from that evidence in the light most favorable to the nonmoving party. Boston Old Colony Ins. Co. v. Tiner Ass'n, Inc., 288 F.3d 222, 226 (5th Cir. 2002); Impossible Elec. Techniques, Inc. v. Wackenhut Protective Sys., Inc., 669 F.2d 1026, 1031 (5th Cir. 1982).
The movant bears the initial burden of showing that no genuine issue of material fact exists, but once the movant makes such a showing, the burden shifts to the nonmovant to produce competent summary judgment evidence of the existence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514, 91 L.Ed.2d 202; Spivey v. Robertson, 197 F.3d 772, 774-775 (5th Cir. 1999); Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). An issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the nonmovant. Anderson. 477 U.S. at 248. A fact is material if its resolution would affect the outcome of the suit under the governing law. Id.
C. DISCUSSION
The United States is immune from suit without its consent, United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980), but the Federal Tort Claims Act (FTCA) waives sovereign immunity for tort claims involving
injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b) (footnote added). See generally 28 U.S.C. § 2671-80. In particular, federal prisoners can maintain suits under the Federal Tort Claims Act to recover for personal injuries sustained in prison because of the negligence of government employees. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed. 2d 805 (1963).
The Unites States is not liable for prejudgment interest or punitive damages. 28 U.S.C. § 2674.
1. Medical Malpractice
Liability under the FTCA is controlled by state law. Hollis v. United States, 323 F.3d 330, 334 (5th Cir. 2003); Edwards v. United States, 519 F.2d 1137, 1139 (5th Cir. 1975). Brown complains of an injury sustained while she was incarcerated in Texas. When the negligence alleged is medical malpractice, Texas law places the burden on the plaintiff to prove (1) a duty by the physician or hospital to act according to an applicable standard of care; (2) a breach of that standard of care; (3) an injury, and (4) a causal connection between the breach and the injury. Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003); Urbach v. United States, 869 F.2d 829 (5th Cir. 1989). In Texas, the plaintiff has the burden to put forth expert testimony that the alleged act or omission of the defendant physician or hospital personnel fell below the appropriate standard of care in the community, or similar communities, in which the treatment took place. Quijano, 325 F.3d at 568; Rodriguez v. Pacificare of Texas, Inc., 980 F.2d 1014, 1020 (5th Cir. 1993).
Brown has not provided any expert testimony on the issue of the appropriate standard of care or the failure of FMC Carswell physicians and medical personnel to exercise the requisite degree of skill and knowledge to meet that standard of care. Conversely, the United States has produced medical expert testimony in the form of the declaration of Te Cora Ballom, D.O. Ballom is a licensed doctor of osteopathy and the Clinical Director at FMC Carswell. (Def. Exh. 1, App. at 001). Ballom reviewed Brown's medical records and affirms that her opinions are based on a reasonable degree of medical probability. Ballom's declaration establishes that Brown was treated appropriately and according to community standards for the injury to her right foot as a result of the wheelchair incident. Ballom further states that in her medical opinion, no act or omission of the FMC Carswell doctors or staff caused any of the damage that Brown alleges, and denies that the doctors and staff were negligent in their care, diagnosis, or treatment. (Def. Exh. 1, App. at 003).
When the laws of the state require that the plaintiff prove negligence by expert testimony, summary judgment can be granted where the defendant presents expert affidavits and the plaintiff presents no such affidavits. Rodriguez, 980 F.2d at 1020. There are no genuine issues of material fact related to Brown's claims of medical malpractice that would preclude summary judgment in favor of the United States.
2. Negligent Wheelchair Instruction
Brown complains that the staff at FMC Carswell was negligent in instructing inmates who used wheelchairs on the safe and the proper use of their wheelchairs inside the facility. A negligence action in Texas requires proof supporting the following elements: A legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).
The Supreme Court has determined that the duty of care owed to federal prisoners is fixed by federal statute, 42 U.S.C. § 4042, independent of any inconsistent state rule. Muniz, 374 U.S. at 164-65. More specifically, the United States — via the Bureau of Prisons — must exercise ordinary diligence in keeping prisoners safe and free from harm. Jones v. U.S., 534 F.2d 53, 54 (5th Cir. 1976). See generally 18 U.S.C. § 4042(a).
Federal law directs the Bureau of Prisons to provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the Unite States. 18 U.S.C. § 4042(a)(2). Muniz is binding Supreme Court authority; however, using a federal statute to establish existence of a duty appears to be at odds with the language of the FTCA, which conditions the United States' tort liability on existence of state law liability. See Dawson v. United States, 68 F.3d 886, 896 (5th Cir. 1995) (reversing award of sanctions against counsel for advancing argument that state law, rather than Section 4042, governed liability issues for prisoner FTCA claim because counsel's argument was reasonable and made in good faith); Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (adhering to principle that FTCA was not intended to redress breach of a federal statutory duty). This anomaly has been noted in previous cases within the Northern District of Texas, with differing results. Compare Haliq v. United States, No. 4:97-CV-1030-Y (N.D. Tex.Mar. 8, 2001) (declining to decide if Muniz or Texas premises liability law controlled FTCA claim because outcome was same under either standard) with Mohammed v. United States, 6 F. Supp. 2d 582 (N.D. Tex. 1998) (holding that Muniz determines Bureau of Prison's duty to inmates for purposes of FTCA claim).
To establish breach of duty, the plaintiff must show the defendant did something an ordinarily prudent person exercising ordinary care would not have done under the circumstances or failed to do that which an ordinarily prudent person would have done in the exercise of ordinary care. Caldwell v. Curioni 125 S.W.3d 784, 793 (Tex.App.-Dallas 2004, pet. denied); Lincoln Prop. Co. v. DeShazo, 4 S.W.3d 55, 61 (Tex.App.-Fort Worth 1999, pet. denied).
The government submits evidence that the prison provides a safe environment for wheelchair use, has a Biomedical Engineering department that performs necessary service and repairs on inmates' wheelchairs, and provides safety instruction on wheelchair use that is comparable to the instructions given to wheelchair users in the general community. (Def.Exhs. 5-6, App. at 018-020). Brown has provided statements from three wheelchair-dependent inmates who use non-motorized chairs and declare that they have received no safety instructions on the use of their wheelchairs at FMC Carswell. (Plf. App. C, Exh. O, P, Q). But Brown has come forward with no evidence of additional wheelchair accidents in the facility or other evidence to suggest that prison staff should have foreseen the possibility of wheelchair-inflicted injuries within the facility from any wheelchair-bound inmate (including the particular inmate who ran over Brown's foot with a motorized wheelchair) and taken corrective action before Brown's injury occurred. No evidence suggests that Brown's injury was anything but the result of an isolated accident. Although the Bureau of Prisons must execute ordinary diligence in keeping inmates safe, the government is not the insurer of an inmate's safety. Jones, 534 F.2d at 54. Summary judgment is appropriate because there is no fact issue regarding the government's breach of duty towards Brown as an inmate subject to the safekeeping of the Bureau of Prisons.
It is ORDERED that Defendant's Motion for Summary Judgment is granted.