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Gearnhardt v. United States

United States District Court, S.D. Indiana, Terre Haute Division

November 13, 2018

JOHN P. GEARNHARDT, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT

          JAMES R. SWEENEY II, JUDGE

         Plaintiff John P. Gearnhardt, a former federal inmate, alleges that he is entitled to monetary relief because he received inadequate medical treatment following cervical fusion surgery in April 2016. He contends that Bureau of Prison (BOP) medical providers left his surgical staples in his neck beyond the timeframe in which they were instructed to remove the staples and failed to change the dressing on his wounds, leading to an infection, pain, disfigurement, and scarring of his neck. The United States of America is allegedly liable under the Federal Tort Claims Act (FTCA) based on the theory that medical personnel at the Federal Correctional Complex in Terre Haute, Indiana (FCI Terre Haute), provided Mr. Gearhardt with inadequate medical treatment.

         The United States seeks resolution of the claims alleged against it through summary judgment. The United States argues that Mr. Gearnhardt cannot establish that the United States was negligent with respect to his medical care. For the reasons explained below, the United States' motion for summary judgment, dkt [29], is granted.

         I. Standard of Review

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         II. Material Facts

         Because the Court must view the facts in the light most favorable to the non-moving party and all reasonable inferences are drawn in the non-movant's favor, the following facts are not necessarily objectively true, but are construed in favor of Mr. Gearnhardt for the purposes of resolving the pending motion for summary judgment.

         At the time of the medical treatment at issue in this action, Mr. Gearnhardt was incarcerated at the Federal Correctional Institution in Terre Haute, Indiana, (“FCI Terre Haute”). On July 31, 2014, upon Mr. Gearnhardt's arrival at FCI Terre Haute, RN David Decker performed a health screen of Mr. Gearnhardt in which Mr. Gearnhardt reported “L/S pain x 10 years.” Dkt. 29-3. Mr. Gearnhardt's medical records reveal that Mr. Gearnhardt's condition has required extensive treatment since his arrival at FCI Terre Haute including an MRI of his cervical spine and a cervical epidural steroid injection in March 2015, and an anterior cervical discectomy and fusion at ¶ 4-5 and C5-6 performed at Union Hospital in August 2015. Dkts. 29-5 through 29-8, 29-12.

         Although the surgery performed in August 2015 initially relieved Mr. Gearnhardt's symptoms, he experienced increased pain and weakness in his left arm in January 2016. Dkts. 29-13 & 14. On February 10, 2016, Dr. Narotam, Mr. Gearnhardt's neurosurgeon, diagnosed Mr. Gearnhardt with cervical radiculopathy and recommended that he undergo surgery. Dkt. 29-20.

         Dr. Narotam performed the surgery on April 21, 2016. Dkt. 29-50. Mr. Gearnhardt's posterior cervical incision was closed with surgical staples and he had a staple placed in his left scalp. Id. He remained in the hospital until April 25, 2016, when he was discharged and returned to FCI Terre Haute. Dkt. 29-23.

         The patient copy of the Union Hospital Discharge Instructions as maintained in the BOP records contains, among other instructions, a handwritten note, stating, “Has a staple in L side of his head (just one) it can be removed in 10-14 days. per Dr. Koj.” Dkt. 29-22. The discharge instructions, as subpoenaed directly from Union Hospital, contain typewritten instructions that differ from the handwritten instructions found in FCI Terre Haute's records. The instructions produced by Union Hospital state: “remove dressing, shower and pat dry and apply clean dressing. Wear soft collar for comfort. [S]taples out 10 to 14 days, dont [sic] forget the 1 staple on the left side of his head.” Dkt. 29-50.

         The discharge instructions do not indicate whether the staples should be removed 10-14 days after surgery or 10-14 days after discharge. Mr. Gearnhardt testified at his deposition that someone at the hospital told him the staples should be removed either 6-7 or 7-10 days after discharge. This date range would match up with an instruction to remove the staples 10-14 after surgery because he was discharged 4 days after surgery. The United States argues that this statement by Mr. Gearnhardt is hearsay and therefore inadmissible. But even if it were admissible, it would not change the discharge instructions received by FCI Terre Haute medical staff which stated that the staples were to be removed within 10-14 days. Mr. Gearnhardt acknowledges, under penalty of perjury in his response brief, that the treating physician's orders were to remove the staples within 10-14 days. Dkt. 40, p.5.

         Upon Mr. Gearnhardt's return to FCI Terre Haute, he was seen by RN Sarah Walters Dkt. 29-23. RN Walters noted:

Paperwork received: follow up with DR. [sic] Narotam in 1 month. EMG in 6 weeks post op @ june [sic] 2nd. Follow up with Dr. Wilson at FBOP. Activity: no lifting greater than 10 pounds. Limitations: no bending or twisting of the spine neck. Remove dressing, shower and pat dry and apply clean dressing. Wear soft collar for comfort. Has staple in left side of his head (just one). It can be removed in 10-14 days per Dr. Koj. Recommend hydrocodone. Inmate complains of ...

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