United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS UNITED STATES DISTRICT JUDGE
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.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.
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.).
Summary Judgment Standard
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
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.”
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).
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)).
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.
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
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.
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. Id. at 15-16, 21-22, 23.
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.
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.
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.
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. 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.
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.
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
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. 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.
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.
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. 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.
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.
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. 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.
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. 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.
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.
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.
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
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.
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.
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.
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
“really didn't talk ...