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Cramer v. Beiser

United States District Court, M.D. Florida, Jacksonville Division

October 22, 2019




         I. Status

         Plaintiff, James Melvin Cramer, an inmate of the Florida penal system, is proceeding on an Amended Complaint (Doc. 14; Am. Compl.), which he filed himself. Plaintiff is now represented by Court-appointed counsel. See Order (Doc. 101). In his Amended Complaint, which is verified under penalty of perjury, Plaintiff asserts Defendants, Dr. Page A. Smith and Dr. J. Jorge-Caraballo, were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Am. Compl. at 6, 16-17, 21.[1]Plaintiff alleges the following injuries: loss of balance, dizziness, loss of focus, confusion, motion sickness, loss of hearing, loss of equilibrium, aggravated kidney disease, anemia, and hallucinations. Id. at 23. As relief, Plaintiff seeks compensatory and punitive damages. Id. at 24.

         Before the Court are the following motions: Plaintiff's Motion for Summary Judgment (Doc. 148; Pl. Motion), to which Defendants have responded (Doc. 154; Def. Resp.); Defendants' Motion for Summary Judgment (Doc. 153; Def. Motion), to which Plaintiff has responded (Doc. 156; Pl. Resp.); and Plaintiff's Motion for Discovery from Non-Party (Doc. 146; Disc. Motion), which Defendants oppose (Doc. 152; Disc. Motion Resp.).

         II. Summary Judgment Standard

         Under Rule 56, “[t]he court shall grant summary judgment 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). An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The record to be considered on a motion for summary judgment may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A).

         “When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted).

         On summary judgment, a party opposing the motion must point to evidence in the record to demonstrate a genuine dispute of material fact. Fed.R.Civ.P. 56(c)(1). Substantive law determines the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court “must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

         When a court is presented with cross motions for summary judgment, the court must evaluate each motion separately to determine whether either party is entitled to the relief sought.

         In accordance with Rule 56, when evaluating the merits of each motion, the court must construe the facts in the light most favorable to the non-moving party. See 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2720 (4th ed., August 2019 update) (“The court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.”).

         III. Complaint Allegations[2]

         In his Amended Complaint, Plaintiff alleges Defendants were deliberately indifferent to his serious medical needs with respect to the administration of an intravenous (IV) antibiotic, gentamicin. Am. Compl. at 8, 17. Plaintiff alleges he was admitted to the Reception and Medical Center (RMC) hospital ward on January 3, 2010, because he had trouble overcoming complications following the removal of a boil from his buttocks. Id. at 6.

         Plaintiff alleges gentamicin is highly toxic, and he was more susceptible to toxicity than other patients because he had a kidney disorder. Id. at 15-16. According to Plaintiff, the “manufacturer's label specifically warns about closely monitoring [for] toxicity . . . in patients with preexisting kidney problems.” Id. at 13. Plaintiff asserts Drs. Smith and Jorge knew Plaintiff had not been tested for gentamicin toxicity.[3] Id. at 15-16, 21-22, 23.

         Plaintiff asserts he displayed and complained of symptoms associated with toxicity from January 20, 2010, through February 10, 2010, including vomiting, dizziness, lack of balance, ringing in the ears, and nausea. Id. at 18, 22. Plaintiff alleges that despite his verbal complaints and outward symptoms of toxicity, and in contravention of the manufacturer's recommendations, Defendants did not order tests to monitor gentamicin levels in his blood until February 10, 2010, thirty-seven days (111 doses) after the treatments began. Id. at 14, 16.

         IV. Plaintiff's Motion

         Plaintiff moves for summary judgment on the issue of liability. Pl. Motion at 1. According to Plaintiff, Defendants' conduct constitutes more than mere (or gross) negligence. Id. at 4, 13-14, 15 n.5. Plaintiff contends the evidence shows Defendants were aware of the risks involved in the administration of gentamicin in a patient with renal insufficiency, knew what needed to be done to avoid or minimize the known risks, and failed to take appropriate action with no medical justification for failing to do so. Id. at 4, 17.

         Specifically, Plaintiff asserts Defendants failed, for five weeks, to test the gentamicin levels in his blood despite knowing periodic tests were indicated and despite Plaintiff's complaints and symptoms that should have put them on notice he was experiencing possible gentamicin toxicity. Id. at 13-14. Plaintiff concludes, “Defendants consciously made numerous treatment decisions and entered numerous orders daily over the course of more than 5 weeks . . . knowing . . . they also needed to monitor that treatment. . . . [T]he conscious failure of Defendants to have acted on their actual knowledge sooner epitomizes ‘deliberate indifference.'” Id. at 15 n.5.

         V. Defendants' Motion

         Defendants argue Plaintiff fails to establish they were deliberately indifferent to a serious medical need and fails to show they did not adequately train or supervise Dr. Beiser.[4] Def. Motion at 17, 19. They also assert they are entitled to qualified immunity. Id. at 21-22. Finally, Defendants assert Plaintiff fails to demonstrate a physical injury under 42 U.S.C. § 1997e(e), stating his claimed injuries are either pre-existing or not causally related to gentamicin toxicity. Id. at 20-21.

         As to Defendants' argument regarding a failure to train or supervise claim, Plaintiff clarifies his claims against Defendants are not premised on vicarious or supervisory liability but rather on the “actions and omissions that lay exclusively within the scope of Defendants' known duties.” Pl. Resp. at 1-2. Plaintiff acknowledges he does not claim to have suffered harm because of Dr. Beiser's deliberate indifference or his failure to follow Drs. Smiths' or Jorge's instructions. Id. at 2. As such, Defendants' motion with respect to a claim for failure to train or to supervise is moot.

         VI. Facts[5]

         This case boils down to whether and when a physician's course of treatment crosses the line from mere negligence, which is not actionable under § 1983, to deliberate indifference, which is. Generally, the parties do not dispute the facts related to Plaintiff's course of treatment. For instance, in their declarations (Doc. 153-1; Def. Ex. A) (Doc. 153-2; Def. Ex. B), Defendants acknowledge Plaintiff's admission to RMC was precipitated by an infection on his buttocks. Def. Ex. A ¶ 8; Def. Ex. B ¶ 7. According to the “physician's order sheets” (Doc. 148-8; RMC Phys. Orders), and as confirmed by Defendants in their depositions (Doc. 148-5; Smith Dep.) (Doc. 148-6; Jorge Dep.), Joseph Charles, M.D., was on duty when Plaintiff was admitted to RMC. Smith Dep. at 48; Jorge Dep. at 45; RMC Phys. Orders at 1. The RMC healthcare authorization form (Doc. 153-3; Def. Ex. C) notes Plaintiff arrived via wheelchair and was in “fair” condition. Def. Ex. C at 1. Dr. Charles ordered blood panels and, in addition to another antibiotic, ordered 120 milligrams (mg) of gentamicin (the “loading dose”) to be followed by 80 mg for seven days (the “maintenance dose”). RMC Phys. Orders at 1; Def. Ex. C at 1; Smith Dep. at 31-32.[6]

         The RMC admission report (Doc. 153-9; Def. Ex. I) is co-signed by Dr. Smith and Dr. Beiser. The admission report notes doctors were awaiting the results of a complete blood count (CBC) and a basic metabolic panel (BMP), and “broad spectrum antibiotics” were started to treat Plaintiff's peri rectal abscess. Def. Ex. I at 5.[7] Initial blood test results (Doc. 148-7; RMC Labs) revealed Plaintiff had an infection identified as methicillin resistant staphylococcus aureus (MRSA), which Dr. Smith testified is difficult to treat. Smith Dep. at 52; RMC Labs at 3. Dr. Smith testified at deposition Plaintiff's initial blood tests also showed he suffered borderline renal insufficiency. Smith Dep. at 15. See also RMC Labs at 1.

         Plaintiff offers the affidavit of Dr. Beiser (Doc. 156-1; Beiser Aff.). Dr. Beiser explains, as a medical student, he “had no authority to treat patients, prescribe medications, or order tests or examinations for them.” Beiser Aff. ¶ 7. Rather, decisions regarding patient care and treatment “lay exclusively with the licensed attending physicians.” Id. The physician's order sheets confirm Dr. Beiser was not the one to order medications or tests. Rather, Drs. Smith and Jorge primarily did so. See generally RMC Phys. Orders. On January 12, 2010, Dr. Jorge ordered gentamicin at 80 mg for seven days. Id. at 6. Dr. Smith ordered gentamicin at 80 mg for seven days on January 19, 2010, January 24, 2010, February 1, 2010, and February 9, 2010. Id. at 8-10, 13.

         According to the RMC doctor's progress notes (Doc. 153-9; Def. Ex. I) and nurse's notes (Doc. 153-14; Def. Ex. N), Plaintiff was evaluated daily between January 3, 2010, and the date of discharge, February 19, 2010.[8] Over this time, Plaintiff complained of hearing loss, dizziness, nausea, and vomiting. Def. Ex. I at 16, 17, 22, 24. On January 23, 2010, Dr. Marie J. Garcon noted Plaintiff complained of vomiting. Id. at 16. Also on January 23, 2010, a nurse noted Plaintiff “continues to be deaf in [left] ear, and [is] hard of hearing in [right] ear.” Def. Ex. N at 43. On January 25, 2010, Dr. Smith changed a medication (not gentamicin), noting Plaintiff attributed his recent bout of nausea and vomiting to his receipt of that medication. Def. Ex. I at 17. On January 27, 2010, a nurse noted Plaintiff was “hard of hearing/deaf.” Def. Ex. N at 51. On February 8, 2010, Plaintiff complained of dizziness, which he said started the week before and was constant over the weekend. Def. Ex. I at 22.

         On February 10, 2010, Plaintiff complained he had nausea and vomiting the previous night. Id. at 24. Dr. Smith ordered a CBC and BMP in response to Plaintiff's complaints. Dr. Smith directed antibiotics be continued to treat the abscess. Id. On February 11, 2010, Dr. Jorge ordered Zofran and Phenergan (for nausea), RMC Phys. Orders at 14, and Plaintiff reported no longer feeling nauseous, Def. Ex. I at 24. On that same day, Dr. Jorge lowered the gentamicin dosage to 40 mg for eighth hours. RMC Phys. Orders at 14.

         On February 12, 2010, Dr. Jorge ordered a “STAT BMP” and discontinued the gentamicin. Id. at 15; see also Def. Ex. I at 25. On February 15, 2010, Dr. Jorge noted Plaintiff's abscess was not healing and his creatinine and “BUN” levels were rising.[9] Def. Ex. I at 26. On February 17, 2010, a different physician ordered a CBC and BMP. Id. at 27; RMC Phys. Orders at 17. On February 18, 2010, Dr. Smith noted Plaintiff's creatinine levels had increased and ordered a BMP. Def. Ex. I at 27.

         On February 19, when Plaintiff showed no signs of improvement, Dr. Smith transferred Plaintiff to Memorial Hospital Jacksonville (MHJ). The discharge summary (Doc. 148-10; RMC Disch. Summ.), co-signed by Dr. Beiser and Dr. Smith, notes the following course of treatment and reason for transfer:

After several weeks of IV antibiotics [Plaintiff's] BUN and creatinine began to rise. Antibiotics were discontinued and [Plaintiff] was hydrated with [fluids] . . . with repeated BMPs. BUN and creatinine continued to trend downwards. [Plaintiff] was no longer able to be treated with IV antibiotics. He has subsequently developed a left lower quadrant pain that became tender to touch. CT machine was not working. We were unable to get a CT due to the machine not working on Friday. Subsequently, it was discussed with the surgeon at Regional Memorial and he was transferred.

RMC Disch. Summ. at 4. See also Def. Ex. A ¶ 15; Def. Ex. B ¶ 14.[10] When Plaintiff was transferred to MHJ, he was in “obvious kidney failure.” Jorge Dep. at 29-30. See also Smith Dep. at 19. Dr. Smith testified at deposition, based on a comparison of the blood tests on January 4, 2010, and February 10, 2010, Plaintiff's “kidney functioning deteriorated” during that time. Smith Dep. at 19.

         Defendants acknowledge in their responses to Plaintiff's counseled interrogatories (Doc. 131-5; Smith Interrog.) (Doc. 131-6; Jorge Interrog.), gentamicin administration carries potentially serious side effects, including nephrotoxicity (damage to the kidneys) and ototoxicity (damage to the ears, including hearing loss and equilibrium issues). Smith Interrog. ¶ 2; Jorge Interrog. ¶ 1. See also Smith Dep. at 9-10, 14; Jorge Dep. at 40-41. The Federal Drug Administration (FDA) warns gentamicin “is potentially nephrotoxic, ” the risk of which is “greater in patients with impaired renal function and in those who receive high dosage or prolonged therapy” (Doc. 149-2; FDA Warning). Additionally, the FDA warns, “[n]eurotoxicity manifested by ototoxicity . . . can occur in patients treated with gentamicin, primarily in those with pre-existing renal damage.” FDA Warning at 1. According to the FDA warning, “[p]atients treated with [gentamicin] should be under close clinical observation because of the potential toxicity associated with [its] use.” Id. The warning provides, “[s]erum concentration levels of [the drug] should be monitored when feasible to assure adequate levels and to avoid potentially toxic levels.” Id.

         Dr. Smith testified at deposition that he knew, when he treated Plaintiff, a patient with renal (kidney) insufficiency is more susceptible to the risks associated with gentamicin. Smith Dep. at 15-16. Dr. Jorge, on the other hand, denied having had such knowledge. Jorge Dep. at 15. In his answers to interrogatories, Dr. Jorge simply acknowledges he was “aware of the side effects of gentamicin use.” Jorge Interrog. ¶ 2. Dr. Jorge did not state he knew when he treated Plaintiff that such side effects are heightened in a patient with renal insufficiency. Id. Drs. Smith and Jorge both also knew when they treated Plaintiff a patient's complaints of hearing difficulty and dizziness could possibly be symptoms of gentamicin toxicity. Smith Dep. at 26, 27; Jorge Dep. at 40. However, they contend nausea and vomiting are “nonspecific” symptoms, which can be caused by anything. Smith Dep. at 28; Jorge Dep. at 41.

         Dr. Smith and Dr. Jorge each knew when they treated Plaintiff the risks associated with gentamicin can be lessened or avoided through “routine” monitoring of kidney function and testing gentamicin levels in the blood stream. Smith Dep. at 10-12; Jorge Dep. at 18, 56-57; Smith Interrog. ¶¶ 2, 3; Jorge Interrog. ¶ 2. However, they disagree on when monitoring should occur. Dr. Smith testified at deposition all patients who receive gentamicin should be monitored every three to five days or at least once a week, regardless of the patient's kidney function at the start of the treatment. Smith Dep. at 11, 33. Dr. Smith stated, “[t]here should have been an order to check [Plaintiff's] [g]entamicin level probably after the third or fifth dose and then his kidney function once a week thereafter, ” but that was not done. Id. at 17, 55.

         On the other hand, Dr. Jorge maintains there is no set schedule for monitoring gentamicin levels but rather monitoring is a matter of medical judgment and physician discretion. Jorge Dep. at 24; Jorge Interrog. ¶ 10. Dr. Jorge states in his answers to interrogatories, “[i]t was not common practice to have a set periodic test. The tests were ordered based on a physician's analysis of the situation.” Jorge Interrog. ¶ 10. According to Dr. Jorge's analysis of the situation, the symptoms Plaintiff reported during his treatment (hearing loss, dizziness, nausea, and vomiting) did not indicate Plaintiff had gentamicin toxicity because the symptoms Plaintiff reported “were probably already chronic in him, like, unsteadiness, dizziness, all of those symptoms.” Jorge Dep. at 24, 59.

         Drs. Smith and Jorge concede Plaintiff's blood was not tested for gentamicin toxicity between January 3, 2010, and February 10, 2010, though they claim they had no knowledge such tests were not being done. Smith Dep. at 12-13, 55; Jorge Dep. at 18; Smith Interrog. ¶ 10; Jorge Interrog. ¶ 6. In their answers to interrogatories, Defendants state blood tests were ordered to monitor Plaintiff's kidney function between January 4, 2010, through February 10, 2010, but those tests did not report gentamicin levels. Smith Interrog. ¶ 10; Jorge Interrog. ¶ 10. In their motion, Defendants explain they failed to notice Plaintiff was not being tested for toxicity because blood tests were being performed periodically. Def. Resp. at 2. They say, “Defendants were aware that blood test[s] . . . should have been ordered to test for toxicity; however, since Plaintiff's blood was being tested [for other reasons], neither made the connection that his blood was not being tested for toxicity.” Id.

         Dr. Smith contends the failure to ensure gentamicin toxicity testing was done is attributable to him and Dr. Jorge being overworked. Smith Interrog. ¶ 10. In his answers to interrogatories, Dr. Smith states, “[t]he fact that [gentamicin] drug levels were not completed [prior to February 10, 2010] was an oversight due to [his and Dr. Jorge's] heavy work load [sic]” resulting from a shortage of physicians. Id. Dr. Smith testified at deposition he and Dr. Jorge were the only two doctors on staff at the relevant time but there should have been six doctors. Smith Dep. at 7, 48.

         At deposition, Dr. Smith suggested other possible reasons the tests had not been ordered: because a different physician (not he or Dr. Jorge) started Plaintiff on gentamicin, and because Dr. Beiser was the primary medical provider attending Plaintiff's care. Id. at 13. Dr. Smith recalled speaking with Dr. Beiser about Plaintiff's progress, but they did not talk about gentamicin levels. Id. Dr. Smith explained, when he spoke with Dr. Beiser, they ‚Äúreally didn't talk ...

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