UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Prealou J. Roberts, Plaintiff

v. Case N o . 09-cv-34-SM Opinion N o .

Wentworth-Douglass Hospital, PrimeCare Medical, Inc., and Tracy Warren, R.N., Defendants

O R D E R

Pro se plaintiff, Prealou Roberts, brings this action

seeking damages for alleged violations of his constitutionally

protected rights. See generally

. He also

claims he was the victim of medical malpractice. Specifically,

Roberts says that while he was a pretrial detainee housed at the

Strafford County Department of Corrections (“SCDOC”), defendants

denied him adequate medical care and subjected him to unnecessary

surgery.

Pending before the court are two dispositive motions: a

motion to dismiss, filed by Wentworth-Douglass Hospital; and a

motion for summary judgment, filed by PrimeCare Medical, Inc.

(“PrimeCare”) and Tracy Warren, R.N. For the reasons discussed

below, those motions are granted. Background

Because Roberts failed to object to either of the pending

dispositive motions, the court must take as admitted the factual

statement recited in Primecare’s motion for summary judgment, as

supported by the attached exhibits. See Local Rule 7.2(b)(2)

(“All properly supported material facts set forth in the moving

party’s factual statement shall be deemed admitted unless

properly opposed by the adverse party.”). See also Cordi-Allen

v . Halloran,

5 , 28 (1st Cir. 2006); McCrory v . Spigel

(In re Spigel),

7 , 31 (1st Cir. 2001). In particular,

the court has drawn extensively from the unrebutted affidavit of

Tracy Warren (document n o . 5 3 - 2 ) .

In 2006, Roberts was incarcerated at the SCDOC, as a

pretrial detainee.1 In May of that year, he complained of having

coughed up blood and was referred out of the facility for a chest

CT scan. A radiologist (who is not a party to this litigation)

read the CT scan and arrived at the following differential

diagnosis: splenic hematoma, hemangioma, sarcoid, lymphoma, or

metastasis. She suggested that Roberts undergo clinical testing

1 There is some confusion as to whether the events in question took place in 2006 or 2007. In his complaint, Roberts says it was 2007, but concedes that he is uncertain. See Complaint at 2 . But, all events referenced in the affidavit of Tracy Warren (document n o . 53-2 ) took place in 2006. The court need not resolve that potential dispute in order to address the pending motions.

2 to confirm (or contradict) her impressions. Approximately three

weeks later, Roberts was found unresponsive in his cell and

transported to Wentworth-Douglass Hospital. He was eventually

stabilized and discharged the following day.

On July 5 , 2006, Roberts went to Wentworth-Douglass Hospital

to consult with a surgeon about the lesions that were found on

his spleen. The consulting surgeon’s notes indicate that he

suspected Roberts had lymphoma and recommended a laparoscopic

splenectomy - a surgical procedure during which part or all of

the spleen is removed. Those notes also indicate (though Roberts

apparently denies) that the consulting physician discussed the

procedure and its risks at length with Roberts and that Roberts

consented to the procedure. Surgery was performed on August 4 ,

2006, and Roberts remained hospitalized until August 1 8 .

Following his surgery and while recuperating at Wentworth-

Douglass Hospital, Roberts was seen by a pulmonologist, who noted

that Roberts had a vocal cord polyp and recommended that he see

an Ear, Nose and Throat specialist. Accordingly, on November 2 0 ,

2006, Roberts was transported to see an ENT, for evaluation. An

endoscopic examination revealed bilateral lesions on his vocal

cords. And, on December 2 0 , 2006, Roberts underwent surgery.

The hospital’s records include an informed consent form,

3 apparently signed by Roberts, tending to establish that he was

informed of the risks associated with the proposed procedure and

that he consented to i t .

As construed by the Magistrate Judge, Roberts’ complaint

advances two types of claims:

(1) Fourteenth Amendment claims, premised upon the denial of adequate medical care, against Warren and PrimeCare Medical Services; and (2) state law negligence claims against PrimeCare Medical Services [and] Wentworth-Douglass Hospital.

Report and Recommendation (document n o . 16) at 1 8 . In essence,

Roberts claims he was subjected to unnecessary surgical

procedures - procedures he says were performed without his

consent. On July 2 2 , 2009, the court stayed Roberts’ state law

medical negligence claims against PrimeCare and Wentworth-

Douglass and, pursuant to N.H. Rev. Stat. Ann. (“RSA”) 519-B:4,

referred the matter to the New Hampshire medical review panel.

But, as described by the panel, Roberts’ claims were dismissed

after he repeatedly failed to comply with panel orders to provide

relevant discovery and to disclose an expert witness (which is

necessary, under New Hampshire law, to prove a medical negligence

claim).

This issue has a significant history. Following a telephonic structuring conference, a structuring order issued November 1 0 , 2009 which in part ordered

4 plaintiff’s expert disclosure by March 1 , 2010 and completion of all discovery by June 1 , 2010. A panel hearing was scheduled by the court for July 6, 2010. On or about January 8 , 2010 WDH filed a Motion to Compel Discovery based on plaintiff’s failure to properly respond to interrogatories served on him by WDH. On February 2 4 , 2010 the undersigned conducted a telephonic hearing on that motion and issued an order dated March 1 , 2010 which required the plaintiff to provide complete written answers to a number of interrogatories, excused him from answering others, and required plaintiff to execute and return certain authorizations requested by WDH. The plaintiff was ordered to comply with this order by March 1 5 , 2010, a date which was selected by the plaintiff. (A copy of the March 1 , 2010 order is attached.)

On or about April 1 4 , 2010 WDH filed a Motion for Dismissal of Panel Proceeding again based on plaintiff’s multiple failures to comply with discovery orders including a failure to provide an expert disclosure, incomplete interrogatory answers and a failure to provide the signed authorizations. The plaintiff again failed to object. That motion was joined by defendants PrimeCare Medical Inc. and Tracy Warren, RN. A record hearing on this motion was held at the US District Court on May 1 4 , 2010 at which the plaintiff appeared and represented himself. An order issued May 1 4 , 2010 (copy attached) denying the motion to dismiss without prejudice and required the plaintiff to provide complete interrogatory answers and certain records by June 1 , 2010, provide completed medical authorizations by May 2 0 , 2010, and provide a complete expert disclosure by June 1 5 , 2010. Paragraph 6 of that order noted (and the record of the hearing will verify) that these dates were agreed to by the plaintiff and he was clearly advised by the undersigned as panel chair on several occasions that his failure to comply with this order would result in a dismissal of his action if requested by the defendants.

Based on WDH’s renewed motion to dismiss and the amendment to which the plaintiff has not objected it appears that the plaintiff has completely failed to comply with the order of March 1 4 , 2010.

5 Roberts v . Wentworth-Douglass Hosp., Order of the Medical Review

Panel (Oct. 1 4 , 2010) (document n o . 48-1) (emphasis supplied).

Given plaintiff’s repeated failure (or refusal) to comply with

discovery orders, and pursuant to RSA 519-B:4 VII(a), the Medical

Review Panel dismissed Roberts’ claims, with prejudice.

Wentworth-Douglass Hospital now moves to dismiss Roberts’

claims, pointing out that, as he did before the medical panel,

Roberts has failed to timely disclose a medical expert.

Accordingly, says Wentworth-Douglass, he cannot, as a matter of

New Hampshire law, succeed on his state medical negligence claim,

nor can he succeed on his constitutional claims. PrimeCare and

Tracy Warren move for summary judgment, advancing the same

argument: given his failure to disclose an expert medical

witness, Roberts cannot prevail on any of his claims. As noted

above, Roberts has not responded to either motion.

Discussion

I. Roberts’ Constitutional Claim.

In order to prevail on a section 1983 claim for medical

mistreatment, an inmate must show that prison officials

demonstrated “deliberate indifference to [his] serious medical

needs.” Estelle v . Gamble,

7 , 106 (1976). This test

6 has both objective and subjective (state-of-mind) components.

See DesRosiers v . Moran,

5 , 18 (1st Cir. 1991). 2

With regard to the objective component of the deliberate

indifference test, the inmate must show that he or she has

suffered a serious deprivation of a fundamental right or basic

human need. See DesRosiers,

8 . As the Supreme

Court has observed, the Constitution “does not mandate

comfortable prisons, and only those deprivations denying the

minimal civilized measure of life’s necessities are sufficiently

grave to form the basis of an Eighth Amendment violation.”

Wilson v . Seiter,

(1991) (citation and internal

quotation marks omitted). And, in Farmer v . Brennan,

(1994), Justice Souter explained the state-of-mind element of

deliberate indifference in the context of an Eighth Amendment

claim.

. In short, a prison official is liable

“only if he knows that inmates face a substantial risk of serious

2 At the time of his alleged injuries, Roberts says he was a pretrial detainee. Accordingly, the constitutional obligations defendants owed to him flow from the provisions of the Fourteenth, rather than the Eighth Amendment. That i s , however, a distinction without a significant difference, as the standard by which defendants’ conduct is measured is essentially the same under the Eighth and Fourteenth Amendments. See, e.g., Burrell v . Hampshire County,

, 7 (1st Cir. 2002) (“Pretrial detainees are protected under the Fourteenth Amendment Due Process Clause rather than the Eighth Amendment; however, the standard to be applied is the same as that used in Eighth Amendment cases.”). See also City of Revere v . Mass. Gen. Hosp.,

(1983).

7 harm and disregards that risk by failing to take reasonable

measures to abate it.” Id. at 847. “[A]n official’s failure to

alleviate a significant risk that he should have perceived but

did not, while no cause for commendation, cannot . . . be

condemned as the infliction of punishment.” Id. at 838.

Accordingly, an Eighth Amendment medical mistreatment claim

cannot be premised upon a theory of simple negligence or even

medical malpractice; a medical care provider’s conduct must go

beyond negligence in diagnosing or treating a prisoner’s medical

condition. See Estelle,

. Similarly, a

constitutional violation does not occur merely because a prisoner

happens to disagree with a nurse’s or a physician’s decision

regarding the proper course of medical treatment. See, e.g.,

Ruiz-Rosa v . Rullan,

(1st Cir. 2007)

(“[S]ubstandard care, malpractice, negligence, inadvertent

failure to provide care, and disagreement as to the appropriate

course of treatment are all insufficient to prove a

constitutional violation.”); Watson v . Caton,

(1st Cir. 1993) (“The courts have consistently refused to create

constitutional claims out of disagreements between prisoners and

doctors about the proper course of a prisoner’s medical

treatment, or to conclude that simple medical malpractice rises

to the level of cruel and unusual punishment.”).

8 Instead, to violate the Eighth Amendment - that i s , to

constitute cruel and unusual punishment - the “care provided must

have been so inadequate as to shock the conscience,” Feeney v .

Corr. Med. Servs.,

(1st Cir. 2006) (citations

and internal punctuation omitted), or “constitute ‘an unnecessary

and wanton infliction of pain,’ or be ‘repugnant to the

conscience of mankind.’” Estelle,

(citations

omitted).

Here, the medical treatment provided to Roberts was not so

obviously outrageous or malicious that a lay trier-of-fact could

reasonably conclude that it violated either the Eighth or

Fourteenth Amendments. S o , to prevail on his constitutional

claims, Roberts must provide expert medical testimony. See,

e.g., Robinson v . Hager,

(8th Cir. 2002);

Boring v . Kozakiewicz,

(3d Cir. 1987). As this

court recently observed:

This court lacks the medical training and expertise necessary to determine, in the absence of expert opinion evidence, whether the medical judgment exercised by the defendant physicians fell below an acceptable standard of professional care, much less that the medical care provided to [plaintiff] was so substandard as to implicate the Eighth Amendment.

* * *

If [plaintiff] expects to prevail at trial on his constitutional and/or state tort claims in this case,

9 he will need to present expert medical witness testimony.

Boudreau v . Englander, 09-cv-247-SM,

(D.N.H. May 2 4 ,

2010). See also Smith v . Wrenn, 07-cv-408-SM,

(D.N.H. June 2 3 , 2009) (“Absent expert medical testimony

suggesting that defendants’ treatment of Smith was so far below

acceptable medical standards as to constitute an unnecessary and

wanton infliction of pain or be repugnant to the conscience of

mankind, Smith cannot prevail on his Eighth Amendment claim on

the undisputed facts.”).

So it is in this case. Roberts has failed to disclose an

expert witness, the time for doing so has passed, and he has not

sought an extension of that deadline - in fact, he has not even

responded to defendants’ pending motions. And, absent expert

medical testimony suggesting that defendants’ treatment of him

was so far below acceptable medical standards as be to repugnant

to the conscience of mankind, or that it amounted to an

unnecessary and wanton infliction of pain, Roberts cannot prevail

on his constitutional claims.3

3 One can easily imagine countless scenarios in which a defendant’s conduct might be so outrageous and so obviously undertaken either with intent to injure an inmate or with deliberate indifference to the inmate’s well-being that expert medical testimony would not be necessary. This, however, is not one of those cases.

10 II. Roberts’ State Law Malpractice Claim.

Under New Hampshire law, a plaintiff cannot prevail on a

medical malpractice claim without expert testimony as to the

applicable medical standard of care and causation.

In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or witnesses:

(a) The standard of reasonable professional practice in the medical care provider’s profession or specialty thereof, if any, at the time the medical care in question was rendered; and

(b) That the medical care provider failed to act in accordance with such standard; and

(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

RSA 507-E:2 I (emphasis supplied). Because Roberts has failed to

disclosed a medical expert, he cannot, as a matter of law,

prevail on his state law medical malpractice claims.

Conclusion

For the foregoing reasons, as well as those set forth in

defendants’ memoranda, the motion to dismiss filed by Wentworth-

Douglass Hospital (document n o . 52) and the motion for summary

judgment filed by PrimeCare Medical, Inc. and Tracy Warren

11 (document n o . 53) are granted. The Clerk of Court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

March 2 9 , 2011

cc: Prealou J. Roberts, pro se Kenneth C . Bartholomew, Esq. Sarah S . Murdough, Esq.

12