United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
W. SCHROEDER III UNITED STATES DISTRICT JUDGE
Plaintiff Francisco Tijerina, a former prisoner of the
Federal Correctional Institution in Texarkana, filed this
civil action under the Federal Tort Claims Act. Docket No. 1.
This Court referred the case to the United States Magistrate
Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the
Amended Order for the Adoption of Local Rules for the
Assignment of Duties to United States Magistrate Judges. The
sole named Defendant is the United States of America.
states he had heart surgery at Christus St. Michael's
Health Center, a hospital in Texarkana, on August 26, 2014.
Docket No. 31 at 4. He returned to the prison on September 2,
days later, on September 4, 2014, Plaintiff states he
complained of dizziness and passed out. Id. He
explains he had been given an improper dose of a blood
thinner called Coumadin by the medical staff at the prison,
causing him to suffer low blood pressure and internal
bleeding. Id. As a result, Plaintiff asserts he had
to be rushed back to the hospital for emergency heart
to Plaintiff, an investigation showed he had been prescribed
2.5 mg of Coumadin but had been given 5 mg. Id. He
contended the medical staff at the prison did not administer
any INR swabs to record his blood, but nonetheless gave him
an improper dose of the medication. Id. Plaintiff
filed an administrative tort claim, but the response stated
there was no evidence the improper dosage of Coumadin caused
the symptoms Plaintiff had experienced. Docket No. 1 at 4.
Instead, the response claimed the symptoms Plaintiff suffered
were complications from his previous surgery and was not
caused by the Coumadin overdose. Id.
federal tort claim, Plaintiff contended “the Defendant
United States of America, by and through its agents,
servants, and employees, conducted an initial examination of
Plaintiff, and said Defendant, by and through its medical
agents, servants and employees administered double the
prescribed dose of above mentioned prescribed Coumadin by way
of orally.” Docket No. 1 at 2. As a result, Plaintiff
asserted he sustained serious physical injuries, was confined
to the hospital for days, and suffered through emergency
surgery and emergency life-saving medical intervention.
Id. at 4. He sought $3 million in damages as well as
the costs of suit. Id. at 5.
The Government's Motion to Dismiss and the
Government was ordered to answer the lawsuit and filed a
motion to dismiss with 388 pages of evidence attached. Docket
No. 20. The Court gave Plaintiff notice of intent to construe
the motion as one for summary judgment and gave Plaintiff an
opportunity to respond, which he did. Docket No. 24. The
motion to dismiss or for summary judgment argued any
negligent act in this case was not committed by an employee
of the Federal Bureau of Prisons, but by an employee of
Christus St. Michaels Hospital who incorrectly told a Bureau
of Prisons nurse the prescription was for 5 mg of Coumadin
rather than for 2.5 mg. Docket No. 20. The Government also
maintained, according to the summary judgment evidence,
Plaintiff returned to the hospital with a pericardial
effusion and pleural effusion, but these were not caused by
receiving a two-day dosage of excessive Coumadin.
response to the motion to dismiss or for summary judgment
acknowledged his filing under the Federal Tort Claims Act was
incorrect and sought leave to amend to set out a claim under
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971). Docket No. 24 at 4.
In its reply, the Government asserted Plaintiff's attempt
to amend to add a Bivens claim was futile because
Plaintiff failed to exhaust the administrative remedies
available for Bivens claims, the attempt to amend
was untimely, and Plaintiff did not identify any employee of
the Federal Bureau of Prisons who violated his rights. Docket
The Report of the Magistrate Judge
review of the pleadings, the Magistrate Judge issued a Report
construing the Government's motion to dismiss as a motion
for summary judgment and recommending this motion be granted.
Docket No. 29 at 14. The Magistrate Judge explained that
under the Federal Tort Claims Act, the United States is
liable for the acts of its employees only 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. Cleveland ex rel. Cleveland
v. U.S., 457 F.3d 397, 403 (5th Cir. 2006). Here,
Plaintiff complains of an act of alleged medical malpractice
which occurred in Texas. Under Texas law, a medical
malpractice claimant must prove four elements: (1) a duty by
the medical provider to act according to a certain standard;
(2) a breach of the applicable standard of care; (3) injury
or harm to the plaintiff; and (4) a causal connection between
the breach of the applicable standard of care and the injury
or harm. Coronel v. Providence Imaging Consultants,
P.A., 484 S.W.3d 635, 638 (Tex. App. 2016), review
denied (June 9, 2017).
assuming, without deciding, expert testimony would not be
required to establish the applicable standard of care with
regard to giving the proper dose of medication, the
Magistrate Judge determined there was no evidence the Bureau
of Prisons nurse breached this standard. Docket No. 29 at 6.
Plaintiff offered no evidence of the standard of care
applicable to nurses and failed to show the nurse's
action in accepting the information she received from the
hospital staff without double-checking or verifying the
dosage violated this standard of care. Id. at 7.
Because the summary judgment evidence showed the negligent
act was not committed by an employee of the Government, the
Magistrate Judge concluded the Court lacked subject matter
jurisdiction over a claim under the Federal Tort Claims Act.
assuming the Bureau of Prisons nurse was negligent, despite
the absence of any evidence to support this, the Magistrate
Judge went on to state Plaintiff failed to show he suffered
an injury which was proximately caused by a breach of the
applicable standard of care. Id. at 8. In this case,
the Magistrate Judge observed that none of the medical
records contained any indication that Plaintiff's
readmission to the hospital was the result of a two-day
Coumadin overdose. Id. He did not display any of the
common symptoms of Coumadin toxicity and was not treated for
Coumadin toxicity, and the summary judgment evidence ...