UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Darren Brady, Plaintiff

v. Case No. 19-cv-655-SM Opinion No.

Weeks Medical Center and John Ford, M.D., Defendants

O R D E R

Pro se plaintiff, Darren Brady, brings this action seeking

damages for alleged violations of state and federal law.

Specifically, he claims that the defendants, Weeks Medical

Center (“WMC”) and Dr. John Ford, refused to provide him with

required medical treatment when he presented to the WMC

Emergency Department complaining of back pain. Moreover, says

Brady, defendants’ wrongful conduct was motivated by a racially

discriminatory animus. He advances claims under the Emergency

Medical Treatment and Active Labor Act, Title VI of the Civil

Rights Act of 1964, and New Hampshire’s Law Against

Discrimination. He also brings common law claims for medical

malpractice. Defendants move for summary judgment on all remaining

claims in Brady’s complaint, asserting that there are no

genuinely disputed material facts and saying they are entitled

to judgment as a matter of law. For the reasons discussed, that

motion is granted.

Standard of Review

When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,

(1st Cir. 2016) (citation omitted). Summary

judgment is appropriate when the record reveals “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). In this

context, a factual dispute “is ‘genuine’ if the evidence of

record permits a rational factfinder to resolve it in favor of

either party, and ‘material’ if its existence or nonexistence

has the potential to change the outcome of the suit.” Rando v.

Leonard,

(1st Cir. 2016) (citation omitted).

When objecting to a motion for summary judgment, “[a]s to

issues on which the party opposing summary judgment would bear

the burden of proof at trial, that party may not simply rely on

2 the absence of evidence but, rather, must point to definite and

competent evidence showing the existence of a genuine issue of

material fact.” Perez v. Lorraine Enters.,

, 29–30

(1st Cir. 2014). In other words, “a laundry list of

possibilities and hypotheticals” and “[s]peculation about mere

possibilities, without more, is not enough to stave off summary

judgment.” Tobin v. Fed. Express Corp.,

, 451–52

(1st Cir. 2014). See generally Anderson v. Liberty Lobby, Inc.,

(1986).

Background

On June 2, 2018, shortly after 8:00 p.m., Brady presented

to the WMC Emergency Department, complaining of lower back pain.

Based on prior experience with similar discomfort, he assumed it

was a recurrence of sciatica. Other than pain radiating from

his back and into his leg, Brady had no other complaints or

medical issues.

After checking in at reception, Brady was taken to an

examination room. There, a triage nurse took his medical

history and vital signs, including blood pressure, pulse,

temperature, and oxygen saturation rate. All were normal. At

his deposition, Brady testified that he felt the nurse did her

3 job appropriately and he had no complaints with the manner or

scope of her examination.

Once the triage nurse completed her initial interview and

examination, she informed Dr. Ford that Brady was ready for him.

Dr. Ford entered the examination room and Brady described the

severity and location of his pain. Dr. Ford believed that the

more Brady explained his situation, the more he began to

contradict himself by giving varying descriptions of the

location of his pain.

I remember entering the examination room after the triage nurse completed her assessment. Mr. Brady was unaccompanied, and I recall that he was lying on his stomach on the stretcher, which is unusual for someone with back pain. I began speaking with Mr. Brady about his back pain to understand the location and quality of the pain. Mr. Brady gave me varying descriptions. First, he described the back pain as radiating down to his knee, but then he said it was radiating into his groin. In a third version, Mr. Brady said that the pain radiated down to his foot. I recall asking Mr. Brady about these inconsistencies, and trying to do so nicely.

John E. Ford, M.D., Answers to Interrogatories (document no. 26-

7) at 14.

As the interaction between the two men continued, Brady

became increasingly animated, agitated, and loud. See, e.g.,

Deposition of Darren Brady (document no. 26-4) at 70 (“[Dr.

4 Ford] said I was making too much noise, and I’m overreacting.

I’m -- I shouldn’t be screaming. . . and because I was screaming

and making a fuss about it, that I was overreacting”); id. at 72

(testifying that he wanted Dr. Ford to “do something to take

away me screaming and yelling.”); see also John E. Ford, M.D.,

Answers to Interrogatories at 14 (“I could not complete taking

Mr. Brady’s history or begin a physical examination because Mr.

Brady became angry and began swearing.”). The parties disagree

as to whether Dr. Ford simply refused to treat Brady, see Brady

Deposition at 82 (“They told me I had to leave. He said I

wasn’t experiencing any pain. They said you got to leave.”), or

whether Brady terminated his interaction with Dr. Ford, see,

e.g., Weeks Medical Center ED Report (document no. 26-3) at 2

(“[Mr. Brady] became angry and stated he would go to LRH for

better care and did not allow further history to be obtained or

exam.”); see also Ambulatory Assessment (document no. 26-3) at

6, 7, & 8 (noting that Brady was discharged from the hospital

“AMA” - that is, against medical advice).

All agree that Brady left the examination room and, as he

was making his way back to the waiting area, he fell to the

ground. One witness reported that Brady was “very loud and

thrashing on the floor.” Statement of Triage Nurse Rebecca

Shanks (document no. 26-6) at 1. Nurse Shanks further recounted

5 that, “Dr. Ford went to the ED waiting room and tried to talk to

the patient, with no success. After the patient wouldn’t talk

to Dr. Ford, and continued to be loud, the Lancaster Police

Department was notified to come for assistance.” Id. See also

Statement of Security Officer Richard Gilson (document no. 26-6)

at 2 (“I heard him yelling and cursing out the doctor, saying he

was leaving. Doctor Ford came out of the ER and asked the

person to return so he could treat him, the person yelled he did

not want to stay at Weeks and was leaving. He wanted to make a

phone call, went to the ER waiting room, grabbed the phone,

[and] flopped on the floor, yelling on the floor. After that he

stayed on the floor. . . . He was cursing and yelling so loud he

was intimidating other people in the waiting room and they

left.”).

Eventually, an officer escorted Brady to the exit where he

apparently fell to the ground again. See id. (“The police

officer asked him to leave the building. . . . When he got

outside, he flopped onto the sidewalk and started yelling and

screaming again.”). A family member recorded a portion of those

events, which Brady published to the internet. See

https://www.youtube.com/watch?v=rh0RDY_pS8s. That video shows

Brady alternating between shouting obscenities at the officer

and rolling around on the ground, moaning in apparent pain.

6 Brady also appears to be directing the person producing the

video to make certain that she captures particular aspects of

the scene.

Brady testified that although he was in significant pain,

he was never “in fear of [his] life,” noting that “I’ve had this

situation before in Littleton so I already know it’s not life-

or-death situation.” Brady Deposition at 56. When asked what

led him to conclude that racial animus affected the way

defendants treated him, Brady testified that:

So to answer your question is – is that without the proper information that know if he has – him or the hospital has called the cops on past patients seeking help, I don’t have the information. Going by what the townspeople say – and going by my own observations, no patient, white, Jewish, Chinese, the hospital’s never called the cops on anyone. So why do I believe that the incident is based upon my race is because it’s never happened before in that hospital.

* * *

Another reason I believe it was my race, maybe they think black people handle pain better. I don’t know what was going on in his mind. Maybe he think black people lying. He believes the pain wasn’t shooting down to my leg. I can’t answer that question.

Brady Deposition at 78-80. Later in his deposition, Brady was

again asked why he believed Dr. Ford’s allegedly skeptical

attitude toward him was motivated by racial animus.

7 I don’t know. I don’t know. Like again I said he could have wanted to go eat. He could have had a phone call. He could have had more patients that he felt needed his help more. I don’t know per se if it was because my skin color, but what I do feel is me being black had something to do with it.

Id. at 133. When asked whether Dr. Ford used any derogatory

language with him, Brady said, “No. It just seemed like it was

a debate. Seemed like he just wanted to debate whether or not

the pain was coming from my back down to my lower thighs and

stuff.” Id. at 81.1

There is no evidence that WMC or Dr. Ford failed to comply

with any of the hospital’s procedures in dealing with Brady, nor

is there any evidence (other than Brady’s testimony about his

“beliefs”) that he was treated differently than any other

patient under similar (albeit fairly unusual) circumstances.

After Brady left WMC, his girlfriend drove him to another

local hospital, where he was observed to be in “mild to moderate

distress” with “some left lower sciatic and buttock tenderness.”

Littleton Regional Healthcare Emergency Department Report

(document no. 26-5) at 2. Again, all his vital signs were

1 Although defendants’ counsel only alludes to the issue during Brady’s deposition, it is, perhaps, worth noting that Brady’s interaction with Dr. Ford occurred during the height of New Hampshire’s opioid crisis.

8 normal. He was given Toradol (a non-narcotic pain reliever and

anti-inflammatory) and Flexeril (a muscle relaxant used to treat

spasms) and discharged.

Brady subsequently filed this action. Discovery closed

approximately six months ago and the date by which Brady was to

have disclosed expert medical witnesses passed more than eight

months ago. See Order on Preliminary Pretrial Conference

(document no. 11). Brady did not disclose any expert witnesses.

Nor did he depose any of the relevant witnesses. Nor did he

respond to at least two orders issued by the magistrate judge.

By order dated April 27, 2021 (document no. 31), Brady was

directed to show cause why this action should not be dismissed

due to his failure to prosecute or otherwise comply with the

orders of the court. Brady filed a non-responsive reply

(document no. 37), in which he complained of judicial corruption

and stated that “the reason to allow my case to move forward is

simply cause of the face of justice.” Id.

Parenthetically, the court notes that while Brady is pro

se, he is no stranger to state and federal civil litigation. He

is, therefore, generally familiar with the rules of court, as

9 well as the requirements of pretrial discovery and motion

practice.2

Discussion

Brady’s claims can be divided into two broad categories:

those relating to the quality of medical treatment he received

and those related to racial discrimination.

I. Medical Treatment.

Turning first to the claim against Weeks Medical Center

under the Emergency Medical Treatment and Active Labor Act

(“EMTALA”), 42 U.S.C. § 1395dd, the undisputed record evidence

reveals that Brady’s claim fails as a matter of law.

2 In this court alone, Brady has filed at least five civil actions (including this one) in the past three years. See Brady v. Whitefield Police Dept., No. 19-cv-147-JL; Brady v. Family Dollar, Inc., 19-cv-616-SM; Brady v. Roberts, 20-cv-208-PB; and Brady v. Roberts, 20-cv-209-SM. He appears to have been equally busy in the state court system. See, e.g., Brady v. Weeks Medical Center, No. 214-2018- CV-00094 (N.H. Super. Ct., Coos Cnty., Feb. 21, 2019); Brady v. Holmander, No. 2018-0494,

(N.H. May 6, 2019); Brady v. Holmander, No. 2018-0351,

(N.H. May 3, 2019); Brady v. Family Dollar, Inc., No. 2018-0443,

(N.H. Mar. 29, 2019); Brady v. St. Pierre, No. 2018- 0075,

(N.H. Feb. 22, 2019).

10 Broadly speaking, EMTALA imposes two requirements on

covered hospitals. “First, it requires that a participating

hospital afford an appropriate medical screening to all persons

who come to its emergency room seeking medical assistance.

Second, it requires that, if an emergency medical condition

exists, the participating hospital must render the services that

are necessary to stabilize the patient’s condition, unless

transferring the patient to another facility is medically

indicated and can be accomplished with relative safety.” Correa

v. Hosp. San Francisco,

(1st Cir. 1995)

(emphasis supplied; citations omitted). So, to prevail on his

EMTALA claim against WMC, Brady must establish that:

(1) the hospital is a participating hospital, covered by EMTALA, that operates an emergency department (or an equivalent treatment facility); (2) the patient arrived at the facility seeking treatment; and (3) the hospital either (a) did not afford the patient an appropriate screening in order to determine if she had an emergency medical condition, or (b) bade farewell to the patient (whether by turning her away, discharging her, or improvidently transferring her) without first stabilizing the emergency medical condition.

(citing Miller v. Medical Ctr. of Sw. La.,

(5th Cir. 1994); Stevison v. Enid Health Sys., Inc.,

, 712 (10th Cir. 1990) (emphasis supplied)). An “emergency

medical condition” is:

11 a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in —

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.

42 U.S.C. § 1395dd(e)(1)(A). “The term ‘to stabilize’ means,

with respect to an emergency medical condition described in

paragraph (1)(A), to provide such medical treatment of the

condition as may be necessary to assure, within reasonable

medical probability, that no material deterioration of the

condition is likely to result from or occur during the transfer

of the individual from a facility.” 42 U.S.C. §

1395dd(e)(3)(A).

WMC does not dispute that the first two elements of Brady’s

EMTALA claim are present. That is, WMC is a participating

hospital and Brady arrived at its emergency department seeking

treatment. As to the third element of Brady’s claim, however,

WMC asserts that he cannot, as a matter of law, carry his burden

of proof.

12 In many (if not most) EMTALA cases, expert medical

testimony is required to prove a violation of the statute – that

is, a plaintiff must provide expert testimony that the screening

provided was inappropriate, that the plaintiff suffered from an

emergency condition, and/or that the defendant failed to

properly stabilize an emergency condition prior to discharge or

transfer. Expert testimony is also frequently required to

establish a plaintiff’s damages (i.e., that the plaintiff’s

original injury that brought him or her to the hospital was

exacerbated by the hospital’s misconduct).

Given the facts presented in this case, expert medical

testimony is plainly required. Absent such expert testimony,

Brady cannot demonstrate to a lay jury that the medical

screening he received was “inappropriate.” Nor can he show that

he was suffering from an “emergency medical condition,” since

it’s entirely unclear whether back pain of the sort Brady

described meets the statutory definition. See 42 U.S.C. §

1395dd(e)(1)(A). Nor can he demonstrate that he was improperly

discharged or turned away without necessary and proper

“stabilization” (or even that such “stabilization” was required,

given his condition). See Cruz-Vazquez v. Mennonite Gen. Hosp.,

Inc.,

, 56–57 (1st Cir. 2010) (discussing the need

for expert medical testimony in EMTALA cases); Ortiz-Lopez v.

13 Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto

Rico,

, 36–37 (1st Cir. 2001) (same); see generally

Alvarez-Torres v. Ryder Mem’l Hosp., Inc.,

, 51–52

(1st Cir. 2009) (“The duty to stabilize under EMTALA does not

impose a standard of care prescribing how physicians must treat

a critical patient’s condition while he remains in the hospital,

but merely prescribes a precondition the hospital must satisfy

before it may undertake to transfer the patient.”) (citation and

internal punctuation omitted).

The same is true with respect to Brady’s common law medical

malpractice claims against both WMC and Dr. Ford: absent expert

medical testimony, those claims cannot proceed. See N.H. Rev.

Stat. Ann. (“RSA”) 507-E:2 (requiring, in any case seeking

compensation for medical injury, expert medical testimony: (1)

as to the standard of reasonable medical practice in the

particular field or specialty at issue; (2) that the medical

care provider failed to act in accordance with that standard;

and (3) that, as a proximate result, the plaintiff suffered

injuries); see also Smith v. HCA Health Servs. of New Hampshire,

Inc.,

(2009); Goudreault v. Kleeman,

(2009).

14 II. Racial Discrimination.

Brady also claims he was the victim of racial

discrimination in violation of both state and federal law. See

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et

seq., and New Hampshire’s Law Against Discrimination, RSA ch.

354-A. Those claims also fail as a matter of law.

Title VI provides that “No person in the United States

shall, on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity

receiving Federal financial assistance.” 42 U.S.C. § 2000d.

Generally speaking, then, Brady must show that “defendant[s]

treated members of one race differently and less favorably than

members of another race and that the defendant[s] did so with a

racially discriminatory purpose.” Students for Fair Admissions,

Inc. v. President & Fellows of Harvard Coll.,

, 195–

96 (1st Cir. 2020) (citing Washington v. Davis,

(1976); Alexander v. Sandoval,

(2001);

and Goodman v. Bowdoin Coll.,

(1st Cir. 2004)).

Initially, Brady must make out a prima facie case showing

that defendants acted with a racially discriminatory animus and

that there was a causal connection between that discriminatory

15 animus and defendants’ treatment of him. See generally Doe v.

Brown Univ., No. CV 17-191-JJM-LDA,

, at *9

(D.R.I. Sept. 24, 2020) (discussing the elements of the burden-

shifting analysis employed in discrimination cases) (citing

Guardians Ass’n v. Civil Serv. Comm’n,

, 602–03

(1983); Sandoval,

; and Comcast Corp. v. Nat’l

Ass’n of African Am.-Owned Media, __ U.S. __,

,

(2020)); see also Cornelius-Millan v.

Caribbean Univ., Inc.,

(D.P.R. 2016)

(explaining why and how courts have applied the McDonnell

Douglas burden-shifting framework to claims under Title VI);

Rashdan v. Geissberger,

(9th Cir. 2014)

(joining the other circuit courts of appeals that have applied

the McDonnell Douglas burden-shifting framework to disparate

treatment claims under Title VI). If Brady were to make out a

prima facie case of discrimination, defendants would then have

to respond with a racially neutral explanation for their

conduct. If defendants did so, the burden would revert to Brady

to demonstrate that defendants’ explanation is merely a pretext

for racial discrimination.

To prevail on his claim under New Hampshire’s Law Against

Discrimination, Brady must demonstrate that one or both

defendants intentionally discriminated against him on the basis

16 of his race. See RSA 354-A:17; see also Franklin Lodge of Elks

v. Marcoux,

,

(2003) (“The

plain language of this provision, standing alone, suggests that

a complainant must show intentional misconduct in order to

prevail.”).

In short, then, to prevail on either of his racial

discrimination claims, Brady must be able to demonstrate that

the defendants’ discrimination against him was intentional and

that his race (African American) was a motivating factor in (if

not the “but-for” cause for) their allegedly deficient medical

treatment of him and/or their decision to contact the police

when he became disruptive. Such evidence is, however, entirely

lacking.

Brady bases his discrimination claims solely upon his

personal experience, perceptions, beliefs, and “what the

townspeople say.” See generally Brady Deposition at 78-81. He

concedes that Dr. Ford never used any racially-charged or

disparaging language, and he has not pointed to any evidence

suggesting that anyone else at the hospital did so. He also

admits that he was “screaming,” “yelling,” and disruptive. For

their part, defendants have offered legitimate, non-

discriminatory explanations for their conduct. First, they say

17 that Brady became so angry and unruly that Dr. Ford could not

complete his examination of him. Next, they explain that

hospital security (and eventually the local police) were

contacted because Brady was causing a loud disturbance in the

Emergency Department waiting area – an explanation supported by,

among other things, the video Brady uploaded to the Internet,

which shows him being loud, abusive, and profane. Consequently,

even if Brady had been able to establish a prima facie case of

discrimination, he has failed to rebut defendants’ legitimate,

non-discriminatory explanations for their conduct.

Conclusion

The court need not belabor the point. Brady cannot prevail

on his medical claims because, under the circumstances

presented, they require the testimony of a medical expert and

Brady has disclosed none. He cannot prevail on his racial

discrimination claims because he has failed to point to any

admissible evidence even hinting that defendants’ actions were

motivated by a racial animus and nothing in the record suggests

any racial animus by anyone associated with the hospital.

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

defendants’ memorandum of law, defendants’ Motion for Summary

Judgment (document no. 26) is granted. Plaintiff’s Motion for

18 Summary Judgment (document no. 28) is denied. All other pending

motions are denied as moot.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

July 22, 2021

cc: Darren Brady, pro se Beth G. Catenza, Esq.

19