Opinion
Civil Action No. 99-4891 (JBS).
January 10, 2001
MR. GREGORY SMITH, Baltimore, Maryland, Plaintiff, pro se.
ROBERT J. CLEARY, United States Attorney, By: J. Andrew Ruymann, Assistant United States Attorney, Trenton, New Jersey, Attorneys for Defendant.
OPINION
Plaintiff, Gregory Smith ("Smith"), previously a federal prisoner confined at the Federal Correctional Institute in Fort Dix, filed suit on October 19, 1999, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq, alleging negligence and medical malpractice by employees of the Federal Bureau of Prisons. Smith alleges that the negligence of two correctional officers caused him to fall and fracture his left index finger and that the subsequent medical malpractice of a Bureau of Prisons employed physician's assistant caused a permanent injury and chronic pain. Defendant United States of America now moves for summary judgment on both of plaintiff's claims pursuant to Rule 56, Fed.R.Civ.P., and seeks to have plaintiff's complaint dismissed in its entirety. For the reasons stated herein, Defendant's motion will be denied with respect to plaintiff's negligence claim and granted with respect to plaintiff's medical malpractice claim. Plaintiff's medical malpractice claim will be dismissed with prejudice.
I. BACKGROUND
Plaintiff Gregory Smith ("Smith") was initially incarcerated at Federal Correctional Institute ("FCI") Fort Dix on February 9, 1998, at which time he was to serve a forty-one month sentence. On July 5, 2000, plaintiff was transferred to a halfway house for federal inmates in Baltimore, Maryland, where he presently resides.
On November 18, 1998, plaintiff was transported by two Bureau of Prisons ("BOP") correctional officers, Jose Rivera ("Rivera") and J.D. Turner ("Turner"), from FCI Fort Dix to a scheduled medical appointment in Moorestown, New Jersey. Prior to leaving FCI Fort Dix, plaintiff was placed in leg irons, Martin chains, and handcuffs, which were fastened in front. Upon arrival at the Moorestown physician's office, Officer Rivera escorted Smith from the van across the parking lot. Plaintiff alleges that Rivera and Turner were rushing him from the van to the office. (Compl., ¶ 9.) Upon reaching the curb at the end of the parking lot and attempting to step up, plaintiff fell forward and sustained an injury to his left index finger. (Runyon Decl., Ex. 1, T 61-22 to 62-3.)
The precise cause of plaintiff's fall is unclear. At his deposition Smith testified that he felt something pull his leg chain taught, and that the pull caused his fall. (Id. at T 62-18 to 63-6.) Smith suggested that Rivera stepped on his leg chains, but admitted that he did not see such an action actually occur. (Id. at T 63-9 to 63-18.) Smith alternatively claimed in his pretrial memorandum that he tripped on his chains as a result of being rushed through the parking lot. (Pretrial Memo., Jul. 7, 2000 at 2.) In his declaration filed in opposition to defendant's summary judgment motion, Smith states: "Plaintiff fall [sic] from Officer Rivera stepping on the leg irons while rushing plaintiff towards the doctors [sic] office." (Smith Decl., ¶ 4.) Officer Rivera reported that as they approached the doctor's office, he had to walk behind Smith as they passed between two parked cars. (Smith Decl., at 257, Mar. 12, 1999 BOP Memo.) In contrast to Smith's version, Rivera then reported that Smith tripped on the curb as he stepped up. (Id.) Rivera advised that he was unable to hold Smith up and prevent the fall because his hand slipped off of Smith's jacket. (Id.) Officer Turner reported that he was walking a few steps ahead of Officer Rivera and Smith at the time of the incident. (Smith Decl., at 258, Nov. 18, 1998 Memo.) Officer Turner further reported that he heard a rattle, turned, and observed Officer Rivera assisting Smith up from the ground. (Id.)
After the fall, Smith immediately reported pain in his left hand and wrist and was transported back to FCI Fort Dix. (Runyon Decl., Ex. 1, at T 65-19 to 66-13.) At FCI Fort Dix, plaintiff's injury was evaluated by physician's assistant Vincente Elias ("Elias"). Examination revealed a left proximal interphalangeal joint deformity, pain, and limited motion. (Elias Decl., ¶ 3.) An x-ray, reviewed by Enrico Doganiero, D.O., revealed a dislocated fracture of plaintiff's left index finger. Elias decided that the proper course of treatment would be to manipulate the finger back into place. (Id. at ¶ 4.) Elias administered a 1% lidocaine block and performed a manual reduction procedure to properly realign the finger. A post- reduction x-ray revealed no dislocation and a non-displaced fracture. (Id.) After the procedure Elias applied a splint, prescribed Motrin and gave plaintiff a one month convalescent pass. Elias also referred plaintiff to an orthopedic surgeon for a follow-up evaluation. (Id. at ¶ 6.)
Approximately five weeks after the injury, plaintiff returned to the health services unit at FCI Fort Dix and the splint was removed from his finger. On November 24, 1998 and December 8, 1998, plaintiff failed to attend the scheduled visits he had requested at health services. On January 20, 1999, Ronald M. Krasnick, M.D., an arthroscopic surgeon, corresponded with FCI Fort Dix and reported that his examination revealed that plaintiff was experiencing left hand pain and stiffness. (Ruymann Decl., Ex. D-1 at 210.) Krasnick advised that plaintiff should perform aggressive exercises to reduce adhesion formation. (Id.) On February 24, 1999, Krasnick again communicated with FCI Fort Dix and reported that plaintiff was still experiencing pain and stiffness. Examination revealed decreased left index finger range of motion. (Id. at 212.) On July 22, 1999, plaintiff was evaluated by Andrew B. Sattel, M.D. Examination revealed left index finger joint swelling and stiffness, post-traumatic degenerative changes, and minor decreased flexion. (Id. at 214.) Sattel recommended stretching exercises and buddy taping the index finger to the middle finger to increase flexion. (Id. at 215.)
On May 25, 2000, plaintiff was examined by David M. Smith, M.D., medical expert for the defense, after Dr. Smith reviewed plaintiff's medical history and the pleadings associated with this case. (Pretrial Memo, Jul. 7, 2000; Ruymann Decl., Jan. 2, 2001, Ex. 1 at 1.) Examination revealed mild left index finger swelling and decreased range of motion. The rest of the left extremity, including the neurovascular status of plaintiff's left hand, was normal. X-rays revealed a healed fracture at the base of the left index finger. (Ruymann Decl., Jan. 2, 2001, Ex. 1. at 1-2.) Smith opined that, to a reasonable degree of medical certainty, there were no deviations from accepted standards of medical care by the professionals who treated plaintiff's left index finger injury, arising after he fell in a parking lot. (Id. at 2-3.) Smith also noted that Elias appropriately diagnosed and treated the dislocation and recommended proper post-fracture exercises.
Dr. Smith received his M.D. from Emory University in 1965 and completed his residency in Orthopaedic Surgery at Columbia Presbyterian Medical Center in New York. Dr. Smith now practices in Princeton, New Jersey. (Ruymann Decl., Jan. 2, 2001, Ex. 2.)
No health care provider has ever informed plaintiff that the treatment he received following the injury to his left index finger was improper or in any way deviated from the accepted standards of medical care. (Ruymann Decl., Ex. 1, T 84-15 to 84- 19.) Despite that fact, Smith filed the instant complaint claiming negligence and medical malpractice relating to the fall and subsequent medical treatment which occurred when he was a prisoner at FCI Fairton. On July 14, 2000, the government moved for summary judgment on both of plaintiff's claims pursuant to Rule 56, Fed.R.Civ.P. Plaintiff entered his opposition on July 28, 2000. For the reasons stated below, defendant's motion will be denied with respect to plaintiff's negligence claim, for which a genuine issue of material fact remains to be determined, and granted with respect to plaintiff's medical malpractice claim. Plaintiff's medical malpractice claim only will be dismissed with prejudice.
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L F Products, 82 F.3d 1283, 1288 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250.
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). The non-moving party, here the plaintiff, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Anderson, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, a "motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 106 S.Ct. 2505, and citingCelotex, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
B. Negligence
Under New Jersey law, negligence is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, when prompted by a consideration which ordinarily regulates the conduct of human affairs. It is, in other words, the failure to use ordinary care under the circumstances in the management of one's person or property, or of agencies under one's control._Bennett v. Real Prop. Services, Corp., 66 F. Supp.2d 607, 614 (D.N.J. 1999).
Negligence, ordinarily, must be proved by the plaintiff, and will not be presumed just because there is an injury. Buckelew v. Grossbard, 87 N.J. 512, 525, 435 A.2d 1150, 1157 (1981) (citing Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139, 84 A.2d 281 (1951)). In order for a plaintiff to prevail on a negligence claim, he or she must prove that the defendant's negligence caused the complained of injury. Bennett, 66 F. Supp.2d at 614-15 (citing Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 73 (3d Cir. 1996) (citing Kulas v. Public Serv. Elect. Gas Co., 41 N.J. 311 (1964))). Under New Jersey law, "[t]he plaintiff must introduce evidence which provides a reasonable basis for the conclusion that it was more likely than not that the negligent conduct of the defendant was a cause in fact of the injury." Fedorczyk, 82 F.3d at 74. Causation consists of both causation in fact, meaning that the particular event would not have occurred without the defendant's act or omission, and legal causation, otherwise known as proximate cause. W. Page Keeton, et al., Prosser and Keeton and the Law of Torts, § 41, at 263 (5th Ed. 1984 (" Prosser").
In order to make out a prima facie case of negligence here, Smith must prove that defendant, through BOP guards Rivera and Turner, breached a legal standard of care that was the actual and legal cause of the harm and damages suffered by plaintiff. Plaintiff has the burden of proof at trial on each of these elements. Bennett, 66 F. Supp.2d at 615;Fedorczyk, 82 F.3d at 74. Plaintiff has little difficulty showing, and defendant does not dispute, that the transporting officers owed Smith a duty of care and that Smith sustained at least some damage as a result of his fall.
The transporting officers owed plaintiff a duty of care because he was in BOP custody at the time of the fall. Jones v. United States, 91 F.3d 623, 624 (3d Cir 1996) (holding that prison officials owed a duty of care to prisoner to provide him with his necessary blood pressure medication). The general duties owed by the BOP to prisoners are articulated in 18 U.S.C. § 4042(a), which provides in part that:
The Bureau of Prisons . . . shall — . . .
(2)provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise;
(3) provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States.See Jones, 91 F.3d at 624. Similarly, in light of plaintiff's post-fall medical treatments (Ruymann Decl., Ex. D-2) and consultations with hand specialists Dr. Krasnick and Dr. Sattel, both of whom found abnormal hand swelling and tenderness three and eight months after the fall (id.), plaintiff offers sufficient proof that his injury has caused damages.
Plaintiff's claim for negligence is less clear with respect to the elements of breach and, more significantly, causation.
Determining causation requires a court to examine whether an act or omission played a material part in the occurrence of an event. See Fedorczyk, 82 F.3d at 73. Causation is not found where the event in question would have occurred even in the absence of the alleged act or omission. Fedorczyk, 82 F.3d at 73 (citing Prosser § 41, at 772). "When more than one act or omission could have caused an event, then the negligent conduct must be shown to have been a substantial factor in causing the harm." Fedorczyk, 82 F.3d at 73. Plaintiff bears the burden of proving causation at trial. see also State of New Jersey, Dep't of Envtl. Protection v. Jersey Central Power Light Co., 69 N.J. 102, 351 A.2d 337, 342 (1976) (adopting the Prosser and Restatement principles on causation).
As the Third Circuit discussed in Fedorczyk, circumstantial evidence can be used to prove negligence even when the doctrine of res ipsa loquitur does not apply. 83 F.3d at 74. That doctrine applies when: (1) the event ordinarily bespeaks negligence; (2) the instrumentality was exclusively within defendant's control; and (3) there is no indication that the injury was a result of defendant's act or neglect. Id. (citingBuckelew v. Grossbard, 87 N.J. 512, 435 A.2d 1150, 1157 (1981)). Here, because injury resulting from falling in a parking lot does not bespeak negligence, res ipsa loquitur does not apply. Plaintiff may, however, use circumstantial evidence at trial to demonstrate to the finder of fact that defendant was negligent.
It is the defendant's burden on motion for summary judgment to establish that there is an absence of any genuine issue of material fact. Even if this Court found that defendant met its initial burden, summary judgment would have to be denied if plaintiff Smith can produce evidence that could reasonably be the basis for a finder of fact determination in his favor. Defendant has offered some evidence of alternative causes of plaintiff's fall, such as plaintiff's own carelessness and plaintiff's acknowledgment of the possibility that he himself could have stepped on his chain. (Ruymann Decl., Ex. 1, T 63-19 to 64-4.) Such evidence, however, does not sufficiently satisfy the defendant's burden on summary judgment to prove the absence of a genuine issue of material fact. Additionally, the reports of the officers accompanying Smith at the time of the fall do not show that no factual issue concerning defendant's negligence remains. If anything, these varying accounts of the cause of plaintiff's fall weigh heavily in favor of this Court's decision to deny summary judgment on plaintiff's negligence claim.
Additionally, plaintiff has presented some evidence that defendant breached a duty owed to him and that such a breach caused his present residual injury. Smith offered circumstantial evidence that Officer Rivera negligently rushed and/or stepped on his chains while they walked single file between two parked cars in the medical center parking lot. Rivera walked behind plaintiff, who presumably looked ahead as he walked. That plaintiff did not actually see Rivera step on the leg chain behind him does not negate the circumstantial inference that this is how plaintiff was caused to fall. Although plaintiff offers conflicting accounts of the precise cause of his fall and subsequent injury (i.e., plaintiff separately testified that the stepping and the rushing caused his fall), it would be unreasonable for this Court to require more from him at this stage, because he could not have been looking behind him, down at the ground, and in front of him all at once as he was being transported through the parking lot.
Reading all facts and inferences in favor of plaintiff as this Court must, a genuine issue of material fact remains to be determined regarding the cause of plaintiff's fall. A finder of fact could determine that the negligence of the guards in rushing plaintiff or in Officer Rivera stepping on his leg chain caused plaintiff's injury. Because a genuine issue of material fact regarding plaintiff's claim of negligence against defendant remains, defendant's motion for summary judgment of that claim must be denied.
C. Medical Malpractice
1. Affidavit of Merit Statute
The Court next considers whether plaintiff's proof of medical malpractice is sufficient to survive summary judgment. As a threshold issue, this Court must first decide whether Smith's failure to file an affidavit of merit in accordance with N.J.S.A. 2A:53A-27, precludes his malpractice action. Whether New Jersey's Affidavit of Merit Statute applies to an action alleging medical malpractice by a Federal Bureau of Prison health care provider appears to be a novel issue. Defendant urges this court to extend the scope of New Jersey's Affidavit of Merit Statute beyond protecting only those providers licensed by the state to also protect unlicenced Federal Bureau of Prison health care providers who are accused of medical malpractice.
N.J.S.A. 2A:53A-27 reads, in part, as follows:
In any action for damages for personal injuries, wrongful death or property damage 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.
It has not been alleged that Elias did not meet the standards set by the BOP for physician's assistants. The relevant issue is whether defendant United States of America should be afforded the protection of a statute which specifically requires protected providers to be "licensed persons."
It is undisputed that plaintiff did not file an affidavit of merit in connection with his malpractice claim involving BOP
physician's assistant Elias (Ruymann Dec., ¶ 4.) It is also undisputed that no health care provider ever told plaintiff that Elias or any FCI Fort Dix health care provider failed to properly treat his injuries or deviated from the proper standard of care while treating his injury (Ruymann Dec., Ex.1, T 84). Defendant argues that the United States should be able to claim the protections of the statute even though neither Elias nor FCI Fort Dix's Health Center are "licensed persons" as defined in N.J.S.A. 2A:53A-26 because they "lawfully provid[e] health care to inmates in New Jersey, albeit in a federal correctional institute." (Defs.' Mot. for Summ. J. at 13.) Defendant further argues that plaintiff's admission about the lack of professional corroboration concerning his theory of medical malpractice indicates that this is exactly the type of frivolous case New Jersey tort-reform legislators sought to eliminate with the statute.
N.J.S.A. 2A:53A-26 defines a "licensed person" as "any person who is licensed as: . . .
f. a physician in the practice of medicine or surgery pursuant to R. S. 45:9-1 et seq.; . . .
i. a registered professional nurse pursuant to P.L. 1947, c. 262 (C. 45:11-23 et seq.); and
j. a health care facility as defined in section 2 of P.L. 1971, c. 136 (C. 26:2H-2).
Again, no one disputes the fact that Elias was qualified for employment as a BOP physician's assistant. BOP physicians assistants are not required to be licensed by any state. (Jarvis Decl., ¶ 4.) The United States Office of Personnel Management GS-603 (Jarvis Decl., Ex. 1) details the basic requirement for physician's assistants. Mr. Elias graduated from Autonomous University in Guadalajara, Mexico, with a degree of Physician-Surgeon, which is the equivalent of a Doctor of Medicine degree in the United States. (Jarvis Decl., ¶ 6, Ex. 2.) Elias was qualified to perform digital block and reduction procedures similar to that performed on plaintiff's left index finger. (Patel Decl., ¶ 4.)
Treating plaintiff's opposition to the government's motion for summary judgment with the substantial deference owed to pro se litigants, the Court understands plaintiff's argument (namely, "[t]hat Vicente Elias, Physician's Assistant at the FCI Fort Dix can not [sic] stand, where he was not privileged to stand. Mr. Elias [sic] medical privileges did not grant him the privilege to treat fractures or dislocations" (Pls.' Decl., ¶ 3)), as a request that no extra protection be afforded to Defendant United States of America through inclusion of Elias as a "licensed person" within the meaning of the statute. This Court agrees that New Jersey's Affidavit of Merit Statute should not be extended to medical practitioners not licensed by the state.
The purpose of N.J.S.A. § 2A:53A-27 is "to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation." Cornblatt v. Barlow, 153 N.J. 218, 242, 708 A.2d 401 (1998) (citations omitted). The question of whether there should be strict adherence to this New Jersey tort-reform law when a claim has obvious merit will likely be determined by the New Jersey Supreme Court, if that court chooses to review one of the four appeals currently pending on that issue. See Fink v. Thompson, 165 N.J. 129, 754 A.2d 1207 (2000) (granting appeal from Superior Court's decision to dismiss based on failure to file affidavit); Palanque v. Lambert-Wooley, M.D., 327 N.J. Super. 158, 742 A.2d 1002 (App.Div. 200 0) (affirming dismissal with prejudice); Burns v. Belasky, 326 N.J. Super. 462 (App. Div. 1999) (reinstating a suit where plaintiff's attorney inadvertently failed to file the affidavit of merit); Hubbard v. Reed, 331 N.J. Super. 283, 751 A.2d 1055 (App.Div. 2000) (requiring an affidavit in a common knowledge or res ipsa loquitur medical malpractice case); see also Henry Goldfarb, "High Court to Navigate Minefield Laid by Affidavit-of- Merit Statute," New Jersey Law Journal, Oct. 16, 2000, at 1, 18.
Despite this brewing debate regarding the necessary degree of adherence to the statute, it is unnecessary for this Court to weigh in on that issue on the facts of this case. Because Physician's Assistant Elias and FCI Fort Dix Health Services Unit are not "licensed persons" under the language of the New Jersey Affidavit of Merit Statute, and because the statute already places a strong burden on plaintiffs, particularly those litigants who are incarcerated, to expend a significant fee for an affidavit of merit, this Court is not bound to an sees no reason to extend the scope of the statute to include BOP medical workers such as Elias at this time. Because Elias is not a "licensed person" as required in N.J.S.A. 2A:53-27, defendant cannot claim the protection of that statute.
Therefore, plaintiff's failure to file an affidavit of merit pursuant to N.J.S.A. 2A:53-27 will not, as a threshold matter, preclude consideration of his claim against Defendant the United States for the alleged medical malpractice of physician's assistant Elias and the FCI Fort Dix Health Services Unit, the merits of which are discussed below.
2. Medical Malpractice Claim
In order to establish a prima facie case of medical malpractice negligence, a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury. Gardner v. Pawliw, 150 N.J. 359, 375, 696 A.2d 599 (1997) (citing Rosenberg v. Cahill, 99 N.J. 318, 325, 492 A.2d 371 (1985); Clark v. Wichman, 72 N.J. Super. 486, 496, 179 A.2d 38 (App.Div. 1962); Germann v. Matriss, 55 N.J. 193, 205, 260 A.2d 825 (1970)). The law requires plaintiff to prove by a preponderance of the evidence that the injury complained of probably would not have occurred "but for" the negligent conduct of the defendant. Gardner, 150 N.J. at 377 (citations omitted).
Plaintiff claims that physician's assistant Elias was not qualified or authorized to treat fractures or dislocations and that the treatment he administered to plaintiff was improper and caused the extended left index finger swelling and pain. Plaintiff offers no expert testimony to support his assertion and admits that no one, medical expert or otherwise, has ever advised him that any of the medical care he has received fell below the accepted standards of medical care. (Ruymann Decl., Ex. 1, T 84- 15 to 84-19.)
Although plaintiff has not produced an expert to certify that medical malpractice has occurred, he was evaluated by the government's expert, David M. Smith, M.D. Rather than granting the government's summary judgment because of plaintiff's failure to produce an expert, as is required by New Jersey law, this Court extended the proper deference to plaintiff as a pro se litigant and evaluated his medical malpractice claim using Dr. Smith's expert opinion, to see whether there is ambiguity or doubt about Dr. Smith's opinion from which a colorable inference of malpractice could be raised. Defendant has successfully met its burden on motion for summary judgment that no genuine issue of material fact remains to be determined in plaintiff's medical malpractice claim. Dr. Smith's report of June 1, 2000 is thorough and comprehensive, based on a review of all relevant records of treatment and a physical examination of plaintiff. (See Ruymann Decl. filed Jan. 4, 2001, at Ex. 1.) Dr. Smith concluded that there have been no deviations from accepted standards of medical care by the personnel who have treated plaintiff for his fracture dislocation, which was appropriately diagnosed and treated. (Id.) Plaintiff submitted no evidence of a deviation from the applicable standard of medical care he received or that such alleged deviation caused his present injury. Plaintiff admitted that he alone felt the care he received was inadequate. This type of unsubstantiated allegation does not create a genuine issue of material fact under the governing principles of New Jersey law, and, therefore, defendant is entitled to a judgment as a matter of law on the issue of medical malpractice.
Defendant's motion for summary judgment on plaintiff's medical malpractice claim will be granted and that claim will be dismissed with prejudice, and his negligence claim may be set for trial.
III. CONCLUSION
For the foregoing reasons, defendant United States of America's motion for summary judgment on plaintiff Smith's claims will be denied with respect to plaintiff's negligence claim and granted with respect to plaintiff's medical malpractice claim. Plaintiff's medical malpractice claim against defendant will be dismissed with prejudice.
The accompanying Order is entered.
O R D E R
This matter having come before the Court upon the motion of Defendant United States of America for summary judgment pursuant to Fed.R.Civ.P. 56 on plaintiff Smith's claims; and this Court having considered the parties' submissions; for good cause shown; and for the reasons expressed in an opinion of today's date;
IT IS this day of January 2001 hereby
ORDERED that defendant United States of America's motion for summary judgment, which appears as Docket Item 33-1, be and hereby is, DENIED IN PART, GRANTED IN PART as follows: defendant's motion with respect to plaintiff's negligence claim will be DENIED and defendant's motion with respect to plaintiff's medical malpractice claim will be GRANTED ; and
IT IS FURTHER ORDERED that plaintiff's medical malpractice claim be, and hereby is DISMISSED with prejudice.
_____________________ Dated
_____________________ JEROME B. SIMANDLE U.S. District Judge