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Tijerina v. United States

United States District Court, E.D. Texas, Texarkana Division

March 27, 2018

FRANCISCO TIJERINA
v.
UNITED STATES OF AMERICA

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

         The 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.

         I. Background

         Plaintiff 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, 2014. Id.

         Two 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 surgery. Id.

         According 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.

         In his 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.

         II. The Government's Motion to Dismiss and the Plaintiff's Reply

         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. Id.

         Plaintiff's 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 No. 27.

         III. The Report of the Magistrate Judge

          After 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).

         After 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. Id.

         Even 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 ...


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