United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
JOSEPH M. HOOD, District Judge.
This matter is before the Court upon Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment [DE 26]. Plaintiff, proceeding pro se, has filed a Response in which he asks the Court to defer consideration of the motion and permit additional time to take discovery, as well as for the Court's assistance in obtaining that discovery. Fed.R.Civ.P. 56(d).
Plaintiff Bharratt Steven Pardassee seeks relief under the Federal Tort Claims Act for injuries allegedly sustained while he was incarcerated at the Federal Medical Center-Lexington. He complains that he was injured as a result of prison employees' negligence when they failed to provide him with timely medical care while he was incarcerated. He avers that he repeatedly sought medical assistance over the course of almost five hours after he experienced shortness of breath, numbness, and chest pains and collapsed following a regular exercise routine, but that medical and non-medical prison personnel (first a nurse, then a unit officer, then a lieutenant) delayed seeking medical care for him. He further avers that he had suffered a heart attack or myocardial infarction and that he now suffers from "akinetic stenosis" which causes permanent and persistent damage to his body as a result of the delay in treatment for that heart attack. Pardassee avers that the delay constituted a breach of the applicable duty of care owed to him and that the alleged delay in treatment was the proximate cause of his injury.
In support of his case, he has presented a letter which serves as an expert or opinion witness report from Francis T. Thandroyen, M.D., his treating cardiologist in Greenville, South Carolina. [ See DE 25.] In that letter, Dr. Thandroyen writes:
My initial contact with Mr. Pardassee occurred on March 19, 2015, at which time I became aware, upon Mr. Pardassee's account, that there was a delay in treatment of a myocardial infarction on August 1, 2012[, ] while in jail. He states he suffered a sudden onset of "shortness of breath, numbness, and chest pains, " indicative of acute distress which required immediate evaluation and treatment. As a cardiologist, I recommend to all my patients that when sudden, acute chest pain occurs, that they seek immediate medical attention to assess whether they are having a heart attack. If the cause of chest pain or shortness of breath is from a heart attack, failure to receive immediate medical attention, assessment, and treatment can result in more extensive damage of the cardiac muscle or even cardiac death. This damage can adversely affect cardiac prognosis in subsequent years.
[DE 25-1 at 1; PageID#: 107.]
Summary judgment is appropriate "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). In considering a motion for summary judgment the court must construe the facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Under the FTCA, a plaintiff may recover monetary awards from the United States for injury, property loss, or death "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope... of 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); see, e.g., Huffman v. United States, 82 F.3d 703, 705 (6th Cir. 1996) (holding that Kentucky law provided cause of action of nuisance in FTCA claim against United States). Because the alleged acts of negligence occurred in Kentucky, Plaintiff's claims sound in negligence and, with respect to medical personnel, medical malpractice under Kentucky law. Id.
For a plaintiff to establish a cause of action for common law negligence in Kentucky, he must prove the following elements: (1) duty of care; (2) breach of that duty; (3) actual injury, and (4) that the injury was proximately caused by the negligence. See Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992) (citing Illinois Central R.R. v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967)). To establish a prima facie case of medical malpractice under Kentucky law,
... a plaintiff must introduce evidence, in the form of expert testimony, demonstrating (1) the standard of care recognized by the medical community as applicable to the particular defendant, (2) that the defendant departed from that standard, and (3) that the defendant's departure was a proximate cause of the plaintiff's injuries.
Heavrin v. Jones, No. 02-CA-000016-MR, 2003 WL 21673958, at *1 (Ky. Ct. App. July 18, 2003) (citing Reams v. Stutler, 742 S.W.2d 586 (Ky. 1982); Jarboe ...