Free Reply to Response to Motion - District Court of Arizona - Arizona

1 TERRY GODDARD ATTORNEY GENERAL 2 RICHARD P. BRODER (020782) 3 Assistant Attorney General 177 North Church Avenue, Suite 1105 4 Tucson, Arizona 85701-1114 (520) 388-7131 · Fax (520) 628-6050 5 [email protected] 6 Attorneys for Defendant 7 8 9 10 11 12 13 14 15 16 17 Defendants hereby Reply to Plaintiff's written opposition Defendants' Motion for v. CHARLES RYAN, JIM TAYLOR, M.D., DON SLOAN, M.D., BRUCE KANTER, M.D., JOHN LOCKHART, M.D., Defendants. DOYLE BURNS, Plaintiff, DEFENDANTS' REPLY TO PLAINTIFF'S "REPLY FOR OPPOSING DEFENDANT'S SUMMARY JUDGEMENT" IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV03-2273 PHX-JWS (MS)

18 Summary Judgment. This Reply is supported by the accompanying Memorandum of 19 Points and Authorities. 20 21 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff's submission, drafted by fellow inmate Terry Lacy1, is for the most part a

22 rehash of the factual assertions previously found by the Court to be inadequate to state a 23 claim for deliberate indifference, to wit: that Defendants failed to diagnose his prostate 24 cancer and prescribed inadequate medication. In its Screening Order of December 16, 25 2003 (at pp. 3-4), the Court expressly stated that inadequate treatment due to malpractice 26
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1 or even gross negligence does not constitute an Eighth Amendment violation. 2 In opposing Defendants' motion, Plaintiff barely addresses the one issue found by

3 the Court to state a claim of deliberate indifference: that Defendants failed to provide 4 follow up treatment of his cancer even though ultrasound and CT scan tests had revealed 5 "high levels of cancer." That is not surprising, however, because Defendants have

6 conclusively demonstrated in their Motion for Summary Judgment that this allegation is 7 without any evidentiary support. 8 Plaintiff now argues that ADC consultant urologist Dr. William Kuo negligently

9 performed the TURP by removing too much of the prostate gland so that radioactive seed 10 implantation was not feasible once the cancer was diagnosed. Although Defendants 11 strongly disagree with Plaintiff's criticism of Dr. Kuo, even if we assume that Plaintiff is 12 right, it would establish nothing more than medical negligence, which is insufficient to 13 support a claim for deliberate indifference. 14 Defendants cannot leave unchallenged Plaintiff's assertion--which is made

15 without citation to any medical authority, and which is contrary to the opinion of Dr. 16 Greenberg, a board-certified urologist--that his enlarged prostate gland "resulted in 17 plaintiff having prostate cancer" (Plaintiff's Opposition, pp. 8, 18-19). Dr. Greenberg 18 clearly states that BPH is the "nonmalignant enlargement of the prostate gland," 19 (emphasis supplied), and although BPH is "not diagnostic for prostate cancer, it bears 20 watching for signs of cancer" (Dr. Greenberg's Affidavit at ¶¶ 4-5). Contrary to Plaintiff's 21 belief, there is no causal relationship between BPH and prostate cancer. 22 Nor can Defendants just ignore Plaintiff's totally unfounded and unsupportable

23 assertion that Defendants "used tactics in order to save D.O.C. money." (Plaintiff's 24 Opposition, pp. 9, 25). There is not a shred of evidence in the record to lend even 25 colorable credence to this claim. 26 On a motion for summary judgment, the non-moving party does not meet its 2

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1 burden of going forward to show the existence of a genuine issue of material fact simply 2 by theorizing a "plausible scenario" in support of the party's claims, when that proffered 3 scenario conflicts with direct, contrary evidence. See Anderson v. Liberty Lobby, Inc., 477 4 U.S. 242, 249, 106 S.Ct. 2505, 2510 (1986). Here, Defendants provided timely and 5 appropriate medical care to Plaintiff, including costly repetitive diagnostic testing, and 6 they did not hesitate to refer him to specialists to treat, surgically and otherwise, his BPH 7 and prostate cancer. 8 Finally, Defendants are compelled to respond to Plaintiff's conclusory assertion

9 that an Eighth Amendment violation resulted from the "delay" between the diagnosis of 10 BPH on January 11, 2002 and the TURP performed on December 18, 2002. What 11 transpired during that 11-month period is fully described in Defendants' Separate 12 Statement of Facts at ¶¶ 3-20 and need not be repeated here. 13 Surgery is obviously the treatment option of last resort for a non-life threatening

14 condition such as BPH, and conservative (i.e., non-surgical) treatment would be indicative 15 of the practice of "good medicine." Mere delay in surgery does not, in and of itself, show 16 deliberate indifference. See Shapley v. Nevada Bd. of State Prison Commissioners, 766 17 F.2d 404 (9th Cir. 1985). Dr. Greenberg strongly supports the medical care afforded to 18 Plaintiff prior to the diagnosis of cancer. After reviewing Plaintiff's complete medical 19 record, as well as his deposition testimony, Dr. Greenberg finds that ADC clinicians and 20 consultants neither fell below the standard of care in treating Plaintiff's urological 21 condition, nor demonstrated deliberate indifference to his serious medical needs. In Dr. 22 Greenberg's words, "all treatment, care and diagnostic testing...administered by Burns' 23 ADC providers and consultants was medically appropriate and timely" (Dr. Greenberg's 24 Affidavit, ¶¶ 3, 28). See, also, Id. at ¶ 5 ("Not all men with BPH will suffer bothersome 25 symptoms; however, those who do will require some form of medical or surgical 26 treatment....Where treatment is indicated, it is also common to prescribe medication to 3

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1 shrink the prostate and thereby alleviate some of the symptoms associated with BPH."). 2 Putting these preliminary observations aside, Defendants now turn to the only

3 assertion contained in Plaintiff's response that pertains to the treatment he was afforded 4 after2 he was diagnosed with prostate cancer--that is, his claim that 5 Defendants delayed in providing radiation therapy to Plaintiff. Plaintiff states that

6 he did not start radiation treatment until on or about August 17, 2004, and "therefore, 7 since the TURP it took the defendants about 20 months to get the radiation treatment." 8 (Plaintiff's Opposition, p. 25). Nothing could be further from the truth. 9 As Dr. Greenberg notes in his affidavit (at ¶ 45), the chart reveals numerous efforts

10 by Plaintiff's ADC providers to answer his many questions about various treatment 11 options once the cancer diagnosis was made, and to persuade Plaintiff to choose an option 12 as soon as possible. The approximate 1 year and 3 month period between the diagnosis of 13 cancer (around April 30, 2003) and the commencement of external beam radiation therapy 14 in August 2004 was primarily due to Plaintiff's indecision about which treatment option 15 to select. The actual sequence of events during this time period is detailed in Defendants' 16 Statement of Facts at ¶¶ 25-38. See, also, Dr. Greenberg's Affidavit at ¶ 48. Dr.

17 Greenberg has opined that Plaintiff received timely and appropriate follow-up care after 18 19 20 21 22 23 24 25 26 Plaintiff now appears to be making a new claim that Defendants "disregarded" his pain and suffering caused by BPH before he was diagnosed with cancer (Plaintiff's Opposition, p. 3). That allegation was contained in neither the original Complaint nor the Amended Complaint. In fact, the original Complaint sets forth an alleged sequence of events which demonstrates that Defendants did not ignore or disregard the pain caused by his BPH but addressed it by modifying his medication and performing various types of examinations (i.e., digital rectal, PSA, ultrasound and CT scan) and by referring him to urologist Dr. William Kuo, who performed a TURP. Similarly, the Amended Complaint makes no claim that Defendants failed to treat Plaintiff's BPH. Plaintiff's allegations of deliberate indifference pertain only to the time period after he was diagnosed with prostate cancer. The medical records submitted in support of the Motion for Summary Judgment clearly substantiate Dr. Greenberg's opinion that "at all times prior to being diagnosed with prostate cancer on or about April 30, 2003, Burns received reasonable medical care and treatment in response to his complaints of urinary difficulty and retention." See Dr. Greenberg's Affidavit at ¶28. 4
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1 being diagnosed with prostate cancer, and that the care and treatment afforded by ADC 2 did not fall below the standard of care and does not suggest deliberate indifference to his 3 medical needs (Id. at ¶¶ 44 and 49). 4 5 CONCLUSION Defendants have established beyond any dispute that there is no genuine issue of

6 material fact as to Plaintiff's one legally viable claim of deliberate indifference; therefore, 7 as a matter of law, they are entitled to judgment dismissing the Amended Complaint. 8 9 10 11 12 13 of 14 COPY nd the foregoing mailed this 22 day of September, 2005, to: 15 Doyle Burns, #85830 16 ASP-Kingman P.O. Box 6639 17 Kingman, AZ 86402 18 19 20 21 22 23 24 25 26 5
IDS04-0034 / G93-04406 / 925743

RESPECTFULLY SUBMITTED this 22nd day of September, 2005. TERRY GODDARD ATTORNEY GENERAL

s/ Richard P. Broder RICHARD P. BRODER Assistant Attorney General Attorneys for Defendant

/s JK

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