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Virgil v. Darlak

United States District Court, Second Circuit

August 6, 2013

MELVIN LAVON VIRGIL, Plaintiff,
v.
JENNIFER DARLAK, et al., Defendants.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff Melvin Lavon Virgil ("Virgil") has filed suit against defendants Jennifer Darlak ("Darlak"), Exigence Hospitalist Medical Services of Erie County, PLLC ("Exigence") (collectively, "defendants") and Amy Keith ("Keith"), asserting claims under 42 U.S.C. § 1983 for deliberate indifference and state law claims for negligence, gross negligence, negligent infliction of emotional distress, negligent training and respondeat superior. (Docket # 76). Virgil's claims arise from his treatment at the Erie County Medical Center ("ECMC")[1] in April 2009. ( Id. ). At that time, Keith was a "medical professional" employed by ECMC, and Darlak was a physician assistant employed by Exigence, a private corporation which had a contractual duty to provide physician assistants to ECMC. ( Id.; Docket # 131 at Exhibit ("Ex.") E at ¶ 3).

Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a magistrate judge. (Docket # 129). Currently before the Court is defendants' motion for summary judgment. (Docket # 130). For the reasons discussed below, defendants' motion for summary judgment is granted.

Defendants' Motion for Summary Judgment

Defendants move for summary judgment on Virgil's Section 1983 claim against Darlak on the grounds that Virgil cannot establish that he was suffering from a serious medical need and, even if he could, he cannot demonstrate that Darlak's conduct rose to the level of deliberate indifference. (Docket # 132 at 4-7). Defendants also move for summary judgment on Virgil's state law claims against Darlak for medical negligence, gross negligence, and negligent infliction of emotional distress on the grounds that Virgil has failed to create an issue of fact as to whether Darlak's conduct was negligent - an element of each of the causes of action. ( Id. at 7-10). With respect to the respondeat superior claim against Exigence, defendants contend that because Darlak's conduct was not negligent, no basis exists to impute liability to her employer and the claim should thus be dismissed. ( Id. at 11). Finally, with respect to Virgil's claim against Exigence for negligent training, defendants maintain that no issue of fact exists that Darlak was acting within the scope of her employment when she committed the challenged acts and, accordingly, the claim cannot be maintained. ( Id. at 10-11).

Virgil opposes defendants' motion asserting that he has sufficiently established that he was suffering from a serious medical need and that Darlak's conduct rose to the level of deliberate indifference. (Docket # 134 at 2-6). In addition, Virgil contends that Darlak's conduct so deviated from accepted medical standards that it constituted gross negligence and that defendants are not entitled to summary judgment. ( Id. at 6). Finally, Virgil initially contended that there was an issue of fact whether Darlak was acting within the scope of her employment precluding summary judgment on the negligent training claim. ( Id. at 6-7). However, in her affidavit in support of the motion, Darlak asserted that she was employed by Exigence and was acting within the scope of her employment. (Docket # 131 at Ex. E at ¶ 3). Further, counsel for Virgil conceded at oral argument that there was no dispute that Darlak was employed by Exigence.

A. Factual Background

The following facts are undisputed except where otherwise noted. Virgil was incarcerated in Attica Correctional Facility in April 2009 when the events which give rise to his claim occurred. (Docket # 76 at ¶¶ 5, 10). On April 3, 2009, Virgil was transported to ECMC because he was suffering from chest pains. ( Id. at ¶ 10). On April 7, 2009, Keith removed a catheter that had been placed in Virgil's arm. ( Id. at ¶ 12). Virgil noticed that the tip of the catheter had broken off and remained lodged in his arm. ( Id. at ¶ 13). According to Virgil, he made numerous complaints to various medical staff, including Keith, regarding the catheter tip lodged in his arm, but did not receive any treatment. ( Id. at ¶¶ 13-16).

Darlak first encountered Virgil later that day, at approximately 7:50 a.m. (Docket # 131 at Ex. E at ¶ 5). Virgil complained of tenderness in his arm and informed Darlak that a piece of the catheter remained in his arm. ( Id.; Docket # 76 at ¶ 17). Darlak examined Virgil's arm and diagnosed him with phlebitis.[2] (Docket # 131 at Ex. E at ¶ 5). Darlak did not observe any signs of infection, so she decided to discharge Virgil and instructed him to use warm compresses on his arm and to follow up with the physicians at the correctional facility if he noticed any redness or swelling. ( Id. at ¶ 5).

Before he was discharged, Virgil complained to another unidentified medical staff member concerning the catheter tip in his arm. (Docket # 76 at ¶ 18). As a result, an x-ray was ordered and was performed at approximately 10:52 a.m. on April 7, 2009. ( Id.; Docket # 131 at Ex. E at ¶ 14). The x-ray results revealed the presence of a foreign object in Virgil's arm. (Docket # 131 at Ex. E at ¶ 14). A Doppler was performed approximately three hours later and confirmed that the foreign object was a piece of the broken catheter. ( Id.; Docket # 76 at ¶ 18).

Shortly thereafter, at approximately 3:30 p.m., Virgil participated in a consultation to discuss surgery to remove the catheter tip in his arm. (Docket # 131 at Ex. E. at ¶ 14). The surgery was elective, and Virgil's consent to the procedure was necessary to proceed. ( Id. ). Approximately five hours later, at 8:15 p.m., Virgil consented to the surgery. ( Id. ). Because the procedure was elective, it was scheduled for the following morning at 5:00 a.m. ( Id. ). According to Darlak, her failure to diagnose the lodged catheter tip at 7:50 a.m. and the resulting approximately three-hour delay in treatment did not affect the timing of the surgery. ( Id. at ¶ 14). In other words, even if Virgil had been diagnosed at 7:50 a.m. rather than 10:52 a.m., the surgery still would have been conducted on the morning of April 8, 2009.

In support of her motion for summary judgment, Darlak has submitted an affidavit of Gregory S. Cherr ("Dr. Cherr"), a board-certified vascular surgeon. According to Dr. Cherr, the care and treatment Darlak provided to Virgil was consistent with the applicable standard of care. (Docket # 131 at Ex. F at ¶ 1). Dr. Cherr opines that Darlak's diagnosis of early phlebitis was appropriate based upon Virgil's symptoms and the fact that catheter breaks are "highly unusual." ( Id. at ¶ 18). In addition, Dr. Cherr opines that the catheter tip lodged in Virgil's arm did not constitute a serious medical need because no evidence exists that the broken catheter tip was interfering with Virgil's blood flow. ( Id. at ¶ 21). This conclusion is reinforced, according to Dr. Cherr, by the fact that although the medical tests conducted on April 7 confirmed the presence of the catheter tip, the surgery was still not performed until the following day. ( Id. ). Dr. Cherr opines that even if Darlak had made the accurate diagnosis when she examined Virgil, the surgery would not have been conducted any sooner. ( Id. at ¶ 23).

B. Discussion

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 reaching this determination, the court must assess whether there are any disputed material facts and, in so doing, must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also Konikoff v. Prudential Ins. Co. of Am., 234 F.3d at 97.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, after which the non-moving party must come forward with sufficient evidence to support a jury verdict in its favor; the motion will not be defeated based upon conjecture, surmise or the existence of "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The party seeking to avoid summary judgment "must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56..., that there are ...


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