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Montano v. Centurion Correctional Healthcare of New Mexico, LLC.

United States District Court, D. New Mexico

August 2, 2019



         This matter comes before the Court upon “Centurion Correctional Healthcare of New Mexico, LLC's Motion for Summary Judgment on Count III” (Motion for Summary Judgment), filed December 20, 2018. (Doc. 127). Pro se Plaintiff[1] responded on January 3, 2019, and Defendant Centurion Correctional Healthcare of New Mexico, LLC (Centurion) filed a reply on January 14, 2019. (Docs. 131 and 138). Having considered the Motion for Summary Judgment and the accompanying briefing, the Court grants the Motion for Summary Judgment.

         A. The First Amended Complaint for the Recovery of Damages Caused by the Deprivation of Civil Rights and Injunctive Relief to Provide Medical Care (First Amended Complaint) (Doc.72)[2]

         In June 2013, Plaintiff, an inmate, alleges that his gall bladder was unnecessarily removed. (Doc. 72) at ¶¶ 14 and 15. After the surgery, Plaintiff suffered from a myriad of ailments including, for example, elevated bilirubin, cirrhosis, ulcerative colitis, liver injury, ventral hernia, hives, anxiety, hepatitis C, shortness of breath, and “urinary pressure/incontinence.” Id. at ¶¶ 25, 32, 3540, 71, 103. Various medical specialists treated Plaintiff. See Id. at ¶¶ 24, 35, 86, 105. Despite this treatment, Plaintiff alleges that medical services companies contracting with the New Mexico Corrections Department failed to deliver adequate medical care to him.

         “On June 1, 2016, Centurion became the new contract provider of medical services for all” New Mexico Corrections Department facilities. Id. at ¶ 96. Plaintiff alleges that his medical care issues continued after Centurion became the medical provider. Plaintiff maintains that he “has repeatedly filed grievances and medical requests regarding his various health issues.” Id. at ¶ 169. Plaintiff alleges that “Centurion has provided Plaintiff inadequate care and been unresponsive to provider notations indicating necessary treatments, consultation follow-ups and procedures that were necessary to be completed in a timely fashion.” Id. at ¶ 173. Plaintiff further complains that “medical information continued to be incorrectly or inaccurately conveyed by Centurion to consulting physicians.” Id. at ¶ 102.

         Plaintiff brings three Counts against Centurion. In Counts I and II, Plaintiff brings 42 U.S.C. § 1983 claims based on alleged violations of Plaintiff's Eighth Amendment right to adequate medical care. In Count III, Plaintiff brings state-law medical negligence claims.

         Centurion now moves for summary judgment on Count III. Plaintiff opposes the Motion for Summary Judgment.

         B. Summary Judgment Standard

         Summary judgment is appropriate if the moving party shows “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). Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013). The Court views the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in the nonmoving party's favor. Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).

         C. Discussion

         Centurion argues that it is entitled to summary judgment on Count III because Plaintiff has not disclosed a medical expert to support the allegations of medical negligence. To establish medical negligence, a plaintiff must show that “(1) the defendant owed the plaintiff a duty recognized by law; (2) the defendant breached the duty by departing from the proper standard of medical practice recognized in the community; and (3) the acts or omissions complained of proximately caused the plaintiff's injuries.” Blauwkamp v. Univ. of New Mexico Hosp., 1992-NMCA-048, ¶ 13, 114 N.M. 228.

         Under well-established New Mexico law, the testimony of a medical expert is required “in most medical malpractice suits” to establish the applicable standard of care, to demonstrate that the healthcare provider breached that standard, and to prove causation. Holley v. Evangelical Lutheran Good Samaritan Soc., 588 Fed.Appx. 792, 795 (10th Cir. 2014) (citing Gerety v. Demers, 1978-NMSC-097, 92 N.M. 396 and Gonzales v. Carlos Cadena, D.P.M., P.C., 2010 WL 3997235, at *1 (N.M. Ct. App.)). The need for expert medical testimony stems from the often “technical and specialized subject matter” which is not within the “common knowledge ordinary possessed by an average person….” Id. (citations omitted). Therefore, unless the subject matter of the medical malpractice action falls within “common knowledge ordinarily possessed by an average person, ” the plaintiff must obtain a medical expert to establish a medical negligence claim. Gerety, 1978-NMSC-097 at ¶ 74 (citation omitted). In considering medical negligence in the summary judgment context, “the proponent of summary judgment need only point out the lack of an expert witness” to prevail. Hilley v. Cadigan, 2018 WL 2213697, at *1, ¶ 3 (N.M. Ct. App.).

         In this case, Plaintiff's complex medical history and multiple ailments do not come within an average layperson's common knowledge. Accordingly, Plaintiff cannot establish the elements of a medical negligence claim without a medical expert. It is undisputed that Plaintiff has not retained a medical expert.

         Plaintiff states that he does not have a medical expert because, as of the date of his response to the Motion for Summary Judgment, January 3, 2019, he had not received his medical records from Centurion to provide to a medical expert for analysis. Plaintiff notes that on May 21, 2018, the Magistrate Judge entered a stipulated order requiring Plaintiff to disclose experts by August 21, 2018, and terminating discovery on November 20, 2018. (Doc. 96). After Plaintiff's counsel withdrew from the case on June 1, 2018, Plaintiff filed a motion to stay the case on June 20, 2018, arguing he needed to familiarize himself with the case and possibly retain counsel. (Doc. 100).

         Then, on July 18, 2018, Plaintiff filed a motion to compel Centurion to respond to discovery requests and produce medical records. (Doc. 104). On October 4, 2018, the Magistrate Judge denied the motion to compel, without prejudice, finding that the motion to compel was premature because the Court still needed to rule on Plaintiff's motion to stay; the parties needed “an opportunity to further meet and confer regarding the discovery responses and potentially reach a negotiated settlement;” and Plaintiff ...

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