Free Motion for Summary Judgment - District Court of Delaware - Delaware

Case 1:07-cv-00505-SLR

Document 22

Filed 06/04/2008

Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE KEVIN A. APGAR, Plaintiff, v. WARDEN RAPHAEL WILLIAMS, DR. BINNON, JAMES WELCH, Defendants. ) ) ) ) ) ) ) ) )

Case No. 07-505 (SLR) JURY TRIAL DEMANDED

DR. BINNON'S MOTION FOR SUMMARY JUDGMENT Defendant Dr. Binnon, through his undersigned counsel, hereby moves for entry of judgment in his favor as a matter of law. Plaintiff has failed to comply with 18 Del. C. § 6853 and cannot show that Dr. Binnon was deliberately indifferent. In support of this Motion, Dr. Binnon states as follows: 1. On August 17, 2007, plaintiff initiated the above-captioned action by filing his

Complaint. (D.I. 2) In it, he alleges he saw Dr. Binnon in February 2007 and "expressed my wish to begin treatment because of my highly elevated enzyme levels attributed to the liver disease chronic hepatitis c. To this date nothing accomplished. No lab work done either (chronic care)." (Id.) Plaintiff also alleges: On August 15, 2007, I saw Dr. Binnon and informed him that I cannot take Tylenol, Motrin, Ibuprofen, Mobic (anything containing the above) on a daily basis due to unnecessary damage that it would do to my liver because of hepatitis C. (I suffer extreme pain due to a bone spur in my back that's grinding a groove into my ribcage. I explained this to Dr. Binnon but he remained obstinate in his position. (Id.)

Case 1:07-cv-00505-SLR

Document 22

Filed 06/04/2008

Page 2 of 6

2.

These are the sum total of all allegations against Dr. Binnon in Plaintiff's Complaint.

Plaintiff's only requested remedy with respect to Dr. Binnon is as follows: "Necessary steps taken (liver biopsy, psychological evaluation) so that my treatment for hepatitis c can proceed." (D.I. 2) He also requests money damages, but that relief is sought not from Dr. Binnon, but from the DOC. (Id.) Facts from Plaintiff's Medical Records 3. Review of Plaintiff's medical records reveals the following facts: On April 21, a

psychiatric consult was ordered to determine whether Plaintiff would tolerate Hepatitis C therapy. (Exhibit "A" at 1) On August 23, 2007, a Consultation Request for liver biopsy was completed by Dr. McDonald. (Id. at 2) The order was entered the same day. (Id. at 3) Also on August 23, 2007, a Hepatitis C Medical Evaluation Form was completed by Dr. McDonald for Plaintiff, and Plaintiff executed the Informed Consent for Hepatitis C treatment. (Id. at 4-6). The biopsy was done October 29, 2007. (Id. at 7-9) Dr. McDonald ordered the medications on November 29, 2007 with an eye toward beginning the therapy on December 20, 2007. (Id. at 10) On December 20, 2007, Dr. Macdonald ordered the therapy to begin. (Id. at 11) Therapy has continued through at least April 26, 2008. (Id. at 12-17) 4. Taking the Plaintiff's allegations in the light most favorable to him, the Court may find

that he has pleaded claims against Dr. Binnon for either medical negligence or deliberate indifference to a serious medical need, or perhaps both. Regardless, Plaintiff cannot sustain his burden for either cause of action, and his requested remedy is moot and so summary judgment in Dr. Binnon's favor is appropriate.

2

Case 1:07-cv-00505-SLR

Document 22

Filed 06/04/2008

Page 3 of 6

ARGUMENT The Standard for Summary Judgment 5. A court shall grant summary judgment where the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue at to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). As the moving party here, Dr. Binnon bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574 586 n. 10 (1986). Once Dr. Binnon demonstrates an absence of material fact, the burden shifts to Plaintiff to provide "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court here should view the underlying facts and all reasonable inferences therefrom in the light most favorable to the Plaintiff. Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). 6. The mere existence of some evidence in support of the Plaintiff, however, will not be

sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for Plaintiff on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Here, if Plaintiff fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, then Dr. Binnon is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 7. There is no dispute as to any material fact. Because Plaintiff failed to comply with the

requirements of 18 Del. C. § 6853, he cannot sustain a claim for medical negligence. Because there are no facts of record that show Dr. Binnon was deliberately indifferent, Plaintiff cannot carry his burden on that claim. In addition, Plaintiff's only request for relief against Dr. Binnon is moot. Accordingly, Dr. Binnon is entitled to judgment in his favor as a matter of law.

3

Case 1:07-cv-00505-SLR

Document 22

Filed 06/04/2008

Page 4 of 6

DR. BINNON IS ENTITLED TO JUDGMENT IN HIS FAVOR AS A MATTER OF LAW State Law Negligence Claims Must be Dismissed 8. Even assuming that Plaintiff's Complaint states a cause of action for medical negligence,

Plaintiff may not maintain a claim against Dr. Binnon based on medical negligence pursuant to Delaware state law, as he has failed to comply with the requirements of 18 Del. C. § 6853. As the Court well knows, all claims for medical negligence filed pursuant to Delaware law must comply with 18 Del. C. § 6853, which provides, in relevant part: (a) No healthcare negligence lawsuit shall be filed in this State unless the complaint is accompanied by: (1) An affidavit of merit as to each defendant signed by an expert witness, as defined in § 6854 of this title, and accompanied by a current curriculum vitae of the witness, stating that there are reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant. If the required affidavit does not accompany the complaint or if a motion to extend the time to file said affidavit as permitted by paragraph (2) of this subsection has not been filed with the court, then the Prothonotary or clerk of the court shall refuse to file the complaint and it shall not be docketed with the court. Id. 9. Plaintiff did not file an Affidavit of Merit or curriculum vitae at the time he filed his

Complaint, nor did he timely move for an extension of time in which to do so. Therefore, any claims for medical negligence pursuant to Delaware state law must be dismissed with prejudice.

4

Case 1:07-cv-00505-SLR

Document 22

Filed 06/04/2008

Page 5 of 6

Deliberate Indifference Claims Must be Dismissed 10. In order to succeed on a claim for violation of Eighth Amendment based on medical

claims, Plaintiff must show "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). In order to show "deliberate indifference," a plaintiff must demonstrate an act or omission and a sufficiently culpable state of mind on the part of the defendant. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994). There are no facts of record to support such a claim. Plaintiff has not even alleged that Dr. Binnon was deliberately indifferent. Plaintiff has alleged, specifically, that he asked for a liver biopsy and psychological evaluation to determine whether he could begin treatment for Hepatitis C, and had not received those things as of the date he filed his Complaint. (D.I. 2) Plaintiff also alleged that he informed Dr. Binnon that he could not take certain medications, but that Dr. Binnon was "obstinate in his position". (Id.). 11. The first issue is moot because, as shown in the medical records, Plaintiff received all the

necessary testing and began Hepatitis C treatment in December, 20071 and has been receiving the therapy ever since. (Exhibit A) As for the second allegation, Plaintiff states not that Dr. Binnon is deliberately indifferent, but that the doctor is "obstinate" in his position as to the type of medications that Plaintiff should receive. (D.I. 2) Simply put, Plaintiff and Dr. Binnion disagree as to the type of medication that is appropriate for Plaintiff. Those allegations are not sufficient to defeat this Motion. Plaintiff is entitled to adequate medical care, not to direct the type of care he receives: However, "a prisoner has no right to choose a specific form of medical treatment," so long as the treatment provided is reasonable. Poole v. Taylor, 466 F.Supp.2d 578, 589 (D.Del.2006)
1

As stated above, the only relief Plaintiff requested from Dr. Binnon was the performance of the tests so that he could begin treatment. He has received that relief. 5

Case 1:07-cv-00505-SLR

Document 22

Filed 06/04/2008

Page 6 of 6

(citing Harrison v. Barkley, 219 F.3d 132, 138-140 (2d Cir.2000)). An inmate's claims against members of a prison medical department are not viable under § 1983 where the inmate receives continuing care, but believes that more should be done by way of diagnosis and treatment and maintains that options available to medical personnel were not pursued on the inmate's behalf. Estelle, 429 U.S. at 107, 97 S.Ct. 285. Moreover, allegations of medical malpractice are not sufficient to establish a constitutional violation. White v. Napoleon, 897 F.2d 103, 108-109 (3d Cir.1990); Spruill v. Gillis, 372 F.3d at 235. Mere disagreement as to the appropriate treatment is insufficient to state a constitutional violation. Spruill, 372 F.3d at 235. See Blackston v. Correctional Medical Services, Inc., --- F.Supp.2d ----, 2007 WL 2325210 * 3 (D. Del., August 16, 2007) (emphasis supplied) (granting summary judgment in favor of medical provider and against plaintiff/prisoner); accord Pecoraro v. Correctional Medical Services, 2007 WL 1560302 at *4 (D.N.J., May 25, 2007)2 (stating prisoner's subjective dissatisfaction with his dental care, and not a deliberate withholding or delay of treatment as alleged in the Complaint, is not in itself indicative of deliberative indifference) (citing Andrews v. Camden County, 95 F.Supp.2d 217, 228 (D.N.J.2000)). 12. There is no genuine issue of material fact. Plaintiff cannot maintain a cause of action for

medical negligence or deliberate indifference based on these facts, allegations, medical records and the applicable law. WHEREFORE, for the foregoing reasons, Dr. Binnon respectfully requests entry of the order attached hereto granting judgment in his favor as a matter of law.

BALICK & BALICK L.L.C.

/s/ James E. Drnec James E. Drnec (DE Bar # 3789) 711 King Street Wilmington, DE 19801 (302) 658-4265 Attorneys for Dr. Binnon Date: June 4, 2008

2

All unreported decisions are included as Exhibit "B". 6

Case 1:07-cv-00505-SLR

Document 22-2

Filed 06/04/2008

Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE KEVIN A. APGAR, Plaintiff, v. WARDEN RAPHAEL WILLIAMS, DR. BINNON, JAMES WELCH, Defendants. -----------------------------------------------------) ) ) ) ) ) ) ) )

Case No. 07-505 (SLR) JURY TRIAL DEMANDED

ORDER AND NOW, this day of , 2008, the Court having considered

Dr. Binnon's Motion for Summary Judgment, and all opposition thereto, it is hereby ordered that the Motion is Granted. All claims against Dr. Binnon are dismissed with prejudice.

J.

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 1 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 2 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 3 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 4 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 5 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 6 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 7 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 8 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 9 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 10 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 11 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 12 of 13

Case 1:07-cv-00505-SLR

Document 22-3

Filed 06/04/2008

Page 13 of 13

Case 1:07-cv-00505-SLR

Document 22-4

Filed 06/04/2008

Page 1 of 1

CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 4th day of June 2008, the foregoing Dr. Binnon's Motion for Summary Judgment was filed via CM/ECF and served upon the following:

Kevin A. Apgar SBI# 302981 Howard R.Young Correctional Institution P.O. Box 9561 Wilmington, DE 19809 Stacey X. Stewart, Esquire Department of Justice State of Delaware 820 N. French Street, 8th Floor Carvel Office Building Wilmington, DE 19801

VIA FIRST CLASS MAIL

VIA CM/ECF FILING

/s/ James E. Drnec James E. Drnec, Esquire (#3789)