Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02319-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-02319-WDM-MJW OLOYEA D. WALLIN, Plaintiff, vs. CMI, CHARLES ABBOTT, KIM DEMPEWOLF, RYAN BRADLEY, MARYE DEMING, MONIQUE M. MARTEL, SANDRA CANNON-GRANT, AND JASON COLLIDGE Defendants.

DEFENDANT MARTEL'S MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendant, MONIQUE M. MARTEL, by her attorneys, JENNIFER M. PALMER and BILLY-GEORGE HERTZKE of the firm SENTER GOLDFARB & RICE, L.L.C., submits this Memorandum Brief in Support of Motion for Summary Judgment. I. INTRODUCTION Plaintiff entered the Centennial Community Transition Center ("CTCC") on August 22, 2001 to serve a four year sentence for menacing. Defendant Monique Martel is a licensed nurse practitioner with prescriptive authority. CTCC provides the prescription drug Antabuse to residents as a deterrent to individuals who have a violent criminal history involving substance

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abuse. Plaintiff knew he was going to be given Antabuse while at CTCC. Plaintiff was referred to Ms. Martel by CCTC. On October 30, 2001, Ms. Martel examined Plaintiff at her office to assess whether Plaintiff was an acceptable candidate for Antabuse. Ms. Martel took a history from Plaintiff and sent a blood sample to a laboratory. Mr. Wallin's laboratory tests showed that he was, in fact, an acceptable candidate for Antabuse. Based on her medical training and experience, Ms. Martel prescribed the medication. However, Ms. Martel never administered Antabuse to Plaintiff. Plaintiff himself filled his prescription at a supermarket pharmacy. Plaintiff claims he became ill after taking Antabuse at CTCC. He brought this action against Ms. Martel for medical malpractice, claiming that Ms. Martel negligently prescribed Antabuse to him. Plaintiff has not endorsed an expert witness in this case. The deadline for endorsing experts was June 30, 2006. Without an expert, Plaintiff cannot establish a prima facia case of medical malpractice against Ms. Martel. The Court should, therefore, grant summary judgment in favor of Ms. Martel because Plaintiff cannot prove the elements of his claim to the trier of fact. II. UNDISPUTED MATERIAL FACTS 1. Plaintiff was referred to Monique Martel by CTCC to determine if he was

medically able to take Antabuse. [Exhibit A-1, Defendant Martel's Answers to Interrogatories and Requests for Admission, at p. 7]. 2. Ms. Martel prescribed Antabuse to Plaintiff on or about October 30, 2001 after

the necessary laboratory results showed that Plaintiff could take the medication. Id. at p. 5, ¶ 4.8; p. 7, ¶ 1-2. Plaintiff filled the Antabuse prescription himself. [Exhibit A-2, Deposition Wallin at p. 15:7-16:8].

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3.

Plaintiff has not consulted with or endorsed any medical experts in this case.

[Exhibit A-2, Deposition O. Wallin, 7/17/06, at p. 35:17-36:5; see also, Docket No. 271, Plaintiff's Response to Motion to Dismiss (conceding no experts endorsed)]. III. SUMMARY JUDGMENT STANDARD Summary judgment should be granted where, taking the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110-11 (10th Cir. 1991). Upon a motion for summary judgment, the moving party bears the burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d. 265, 273 (1986). The burden then shifts to the non-moving party to produce evidence creating a genuine issue of material fact to be resolved at trial. See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993). To avoid summary judgment, the non-moving party must present more than "a mere scintilla of evidence." Id. There must be enough evidence to allow a reasonable jury to find for the non-moving party. Id. The nonmoving party may not rely upon unsupported allegations "without any significant probative evidence tending to the support the complaint." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Rather, the nonmovant "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Id. at 257.

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IV. ARGUMENT The Court should grant Defendant Martel's Motion for Summary Judgment because Plaintiff does not have an expert in the field of medicine or nursing to provide expert opinion testimony to support the only claim he has asserted against Ms. Martel ­ medical malpractice. [SOF No. 3, supra]. Without expert testimony, Plaintiff cannot make a prima facia showing of malpractice against Ms. Martel. In a medical malpractice case, the burden is on Plaintiff to establish a prima facie case of negligence. Melville v. Southward, 791 P.2d 383, 387 (Colo. 1990)(citations omitted). To establish a prima facie case, Plaintiff must establish that Ms. Martel failed to conform to the standard of care ordinarily possessed and exercised by members of the same profession and school of medicine practiced by Ms. Martel (in this case, licensed nurse practitioner). Id. The standard of care in a medical malpractice action is measured by whether a reasonably careful nurse practitioner of the same knowledge and skill as Ms. Martel would have acted in the same manner as did Ms. Martel in treating and caring for Plaintiff. Id.; see, also, Gorab v. Zook, 943 P.2d 423, 427 (Colo. 1997). Unless the subject matter of a medical malpractice action lies within the ambit of common knowledge or experience of ordinary persons, Plaintiff must establish the controlling standard of care, as well as Ms. Martel's failure to adhere to that standard, by expert opinion testimony. Melville, 791 P.2d at 387 (citations omitted). The reason for the requirement of expert opinion testimony in most medical malpractice cases is that matters relating to medical diagnosis and treatment ordinarily involve a level of technical knowledge and skill beyond the realm of lay knowledge and experience. Id. Without expert opinion testimony in such cases, the

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trier of fact would be left with no standard at all against which to evaluate a medical professional's conduct. Id. Mr. Wallin entered CTCC on August 22, 2001. CTCC referred Plaintiff to Ms. Martel to determine if he was an acceptable candidate for the prescription drug Antabuse. [SOF No. 1, supra]. After evaluating Plaintiff and completing his blood work, which showed that he had no physical conditions that would make him an unacceptable candidate for the medication, Ms. Martel prescribed Antabuse to Plaintiff. [SOF No. 2, supra]. Plaintiff claims Ms. Martel committed medical malpractice by prescribing him Antabuse on October 30, 2001. [See Amended Prisoner Complaint at p. 8, ¶ 7]. Ms. Martel did prescribe Antabuse to Plaintiff, but only after Plaintiff's laboratory results showed he was an acceptable candidate for the drug. Id. The factors and considerations a medical professional such as Ms. Martel must consider before prescribing Antabuse is beyond the realm of common knowledge of lay persons. Expert testimony is necessary in this case to establish the standard of care, to which Ms. Martel must adhere in her practice. Moreover, expert testimony is necessary to establish whether or not Ms. Martel violated that standard of care when she prescribed Antabuse to Plaintiff. Defendant Martel recently filed a Motion to Dismiss based on Plaintiff's failure to file a certificate of review pursuant to C.R.S. § 13-20-602. [#268]. The certificate of review

requirement is intended to avoid circumstances where unsupported claims are submitted against medical professionals. Here, Plaintiff filed his malpractice claims without consulting with any qualified medical professional. The Motion to Dismiss has been fully briefed and is ripe for ruling. This Motion for Summary Judgment complements Defendant Martel's Motion to

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Dismiss. The issues presented in both motions relate to Plaintiff's failure to identify an expert who can provide testimony concerning the standard of care and whether Ms. Martel's care fell below that standard. In his Response to the Motion to Dismiss, Plaintiff argued that expert testimony is not required in this case because he claims it is obvious that Antabuse should not be prescribed for a condition that Plaintiff does not possess (i.e. alcoholism) and, thus, no certificate of review was necessary. It is anticipated that Plaintiff will make a similar argument in effort to defeat this Motion for Summary Judgment. The Court should not be persuaded. A prima facia case of medical malpractice cannot be established against Ms. Martel without expert opinion testimony. Plaintiff's contention that medication should not be

prescribed to a person for a condition that person does not possess is unsubstantiated. Plaintiff must present expert opinion testimony to support his assertion that Antabuse should not be prescribed to a person in Plaintiff's circumstance. Here, Plaintiff claims he does not drink. There are several examples of instances where medication is given when the person receiving the medicine may not possess the ailment for which the medication is given. For example, immune globulin is given to persons who may have been exposed to the hepatitis A virus as a preventative measure even if that person did not actually contract the disease. See Tabor's Cyclopedic Medical Dictionary 966 (18th Ed. 1997). Recently, medical officials recommended that nearly 1,000 girl scouts in Virginia be given vaccinations for rabies, even though none of the girls claimed to have been bitten, after it was discovered that bats inhabited some of the girl scouts' sleeping quarters. See http://www.usatoday.com/news/nation/2006-08-06-girl-scoutsrabies_x.htm.

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In this case, Plaintiff must prove that it was below the standard of care for Ms. Martel to prescribe him Antabuse. This can only be done through expert opinion testimony. Plaintiff's assertion that Ms. Martel fell below the standard of care because he claims he did not drink alcohol at the time the Antabuse was prescribed is not sufficient. Whether or not the medication should have been prescribed is within the medical professional's judgment. If Plaintiff wishes to establish that Ms. Martel fell below the standard of care by prescribing him Antabuse, even if he did not drink on October 30, 2001, he must offer expert testimony to support this position. Moreover, Plaintiff offers no expert testimony to support his contention that the prescription caused any injuries. As Plaintiff has not endorsed an expert witness, and the time to do so has passed, he cannot prevail on his claim against Ms. Martel for medical malpractice. Summary Judgment should be granted because no reasonable trier of fact could find in Plaintiff's favor because he cannot establish the essential elements of his claim. V. CONCLUSION Plaintiff has not endorsed an expert to testify in this matter. The expert disclosure deadline has passed. Without an expert to testify as to the standard of care and whether or not Ms. Martel fell below that standard of care, Plaintiff cannot establish a prima facia case of medical malpractice against Ms. Martel. The Court should, therefore, grant Ms. Martel's Motion for Summary Judgment. WHEREFORE, Defendant Martel respectfully requests that the Court grant her Motion for Summary Judgment and dismiss Plaintiff's claim against her for medical malpractice.

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Respectfully submitted,

By s/ Jennifer M. Palmer Jennifer M. Palmer

By s/ Billy-George Hertzke Billy-George Hertzke SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: (303) 320-0509 Facsimile: (303) 320-0210 E-mail: [email protected] [email protected] Attorneys for Defendant Martel

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1st day of September, 2006, I electronically filed a true and exact copy of the above and foregoing DEFENDANT MARTEL'S MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Steven J. Wienczkowski ­ [email protected] Daniel M. Hubbard ­ [email protected] Scott S. Nixon ­ [email protected] PRYOR JOHNSON CARNEY KARR & NIXON, P.C. Attorneys for Defendants CMI, Abbott, Dempewolf, Bradley, Deming, Coolidge, and CannonGrant Via U.S. Mail Oloyea D. Wallin AVCF, Prisoner #111389 P.O. Box 1000 Crowley, CO 81034 Plaintiff, Pro Se /s Rita Sinks

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