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Warner v. Floyd

United States District Court, D. Kansas

February 7, 2018

SHERRY SHERI FLOYD, et al., Defendants.


          Sam A. Crow, U.S. District Senior Judge

         This is a medical malpractice action which is before the court upon motions for summary judgment filed on behalf of defendant Sheri Floyd and defendants Sisters of Charity of Leavenworth Health System and St. Francis Health Center. Doc. Nos. 190 and 193. Plaintiff is proceeding pro se.

         I. Summary judgment and pro se standards

          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). The local rules of this court provide that a supporting memorandum for a summary judgment motion must contain “a concise statement of material facts as to which the movant contends no genuine issue exists.” D.Kan. Rule 56.1(a). The local rules further provide that: “[a] memorandum in opposition to the motion for summary judgment must begin with a section containing a statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, state the number of movant's fact that is disputed.” D.Kan. Rule 56.1(b)(1). “All material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.” D.Kan. Rule 56.1(a). Plaintiff received notice of the provisions of Fed.R.Civ.P. 56 and D.Kan. Rule 56.1 when defendants filed their motions for summary judgment. Doc. Nos. 192 and 195. Of course, pro se litigants must follows the rules of procedure, including the local rules. Elrod v. Swanson, 478 F.Supp.2d 1252, 1268-69 (D.Kan. 2007); Keehner v. Dunn, 409 F.Supp.2d 1266, 1270 (D.Kan. 2005). A “[p]laintiff's pro se status, in and of itself, does not prevent this Court from granting summary judgment.” Elrod, 478 F.Supp.2d at 1269; see also, Keehner, 409 F.Supp.2d at 1270.

         II. Plaintiff's contentions

         Plaintiff suffered a dog bite to his left thumb. The parties allege that plaintiff was treated by defendant Floyd on February 7, 2015 for this injury. See Final Pretrial Order, Doc. No. 186, pp. 4-5. According to plaintiff's response to the motions for summary judgment, plaintiff's “legal position [is] that the negligence of defendant Floyd caused Plaintiff life threatening harm by not providing [a] required discharge summary for Plaintiff to sign and take home upon discharge on 2/7/2015.” Doc. No. 198, p. 4. According to the final pretrial order, plaintiff further contends: that he refused consent to defendant Floyd to suture his wound; that Floyd's failure to anesthetize the wound caused plaintiff trauma; that there was a failure to evaluate plaintiff's diagnosis after six weeks of antibiotics; and that defendants failed to report complaints about plaintiff's care to state and federal agencies. Doc. No. 186, pp. 4-5.

          III. Uncontroverted facts

         Plaintiff has not specifically controverted the lists of uncontroverted facts defendants have presented with their summary judgment motions. After reviewing the motions and the support materials, the court finds that the following facts are uncontroverted. On February 7, 2015, plaintiff sought care at the Brewster ReadyCare Clinic, a St. Francis Physician Clinic, for a dog bite on his left thumb. Defendant Sheri Floyd, a physician's assistant, provided care to plaintiff. Floyd discussed the risks, benefits and limitations of loosely suturing the lacerations on plaintiff's thumb and plaintiff agreed to that procedure. The thumb wounds were cleansed and a local anesthetic was administered prior to suturing. Plaintiff complained of pain during the suturing process. The suturing was stopped and an additional amount of anesthetic was administered. After the suturing continued, plaintiff asked that it stop. Floyd tied off the sixth suture and used steri strips to finish closing the lacerations. Floyd explained the importance of a thorough examination of the wounds and the importance of cleaning the wounds. The progress notes of the visit (Doc. No. 191-2, p.2) indicate that a “wound handout” was given to plaintiff. Further, plaintiff was informed to keep the wound clean and dry, to apply antibiotic ointment daily, to notify the clinic if he noticed signs of infection, and to return in 7 days for the removal of the sutures. Id. A treatment plan was established which included pain medication and antibiotics. A prescription by Floyd for antibiotics was transmitted to a pharmacy.

         On February 17, 2015, staff at the St. Francis Physician Clinic called plaintiff to check on his status. Plaintiff complained of unbearable pain and discoloration in his left hand. He requested a refill of his antibiotics prescription and said he was out of pain medication. Plaintiff was advised that he needed to be seen by a health care provider. Plaintiff went to Brewster ReadyCare Clinic where he was assessed and referred to the emergency room at St. Francis Health Center.

         At the emergency room, a physician's assistant, Shari LeFever, observed that the left thumb had become infected. Plaintiff was continued on antibiotics and pain medication, and he was told to follow up with his primary care doctor in two to three days.

         On February 26, 2015, plaintiff visited Brewster ReadyCare Clinic to recheck the dog bite. He was seen by defendant Floyd in conjunction with Dr. Michael McClintick. The wound appeared well-healed, but there was some tenderness to the touch. A change in antibiotics was prescribed and plaintiff was referred to another clinic for evaluation and treatment of his thumb.

         On March 11, 2015, plaintiff reported to the St. Francis Health Center emergency department to recheck his left thumb. It was reported that there was: some mild swelling; no streaking; minimal warmth; and decreased sensation and range of motion because of swelling. Plaintiff was told to continue antibiotics until he was seen by a hand specialist and to elevate his thumb and use it as tolerated.

         On April 1, 2015, plaintiff was seen again at Brewster ReadyCare Clinic. Plaintiff was told to keep the wounded area clean and dry, finish all antibiotics, and to follow up with his primary care doctor if his symptoms did not improve. Plaintiff was referred to an infectious disease specialist.

         On April 3, 2015, plaintiff visited the St. Francis Health Center emergency department with complaints of a left thumb infection. A MRI was conducted which provided some indications of osteomyelitis. An orthopedic physician recommended IV antibiotics for 3-6 weeks. Plaintiff was also ...

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