United States District Court, E.D. Arkansas, Eastern Division
CLIFFORD EATON Reg. #12878-074 PLAINTIFF
UNITED STATES OF AMERICA DEFENDANT
Kristine G. Baker United States District Judge
The Court has reviewed the Recommended Disposition submitted by United States Magistrate Judge Beth Deere (Dkt. No. 28) recommending that the Court grant the motion for summary judgment filed by defendant United States of America (Dkt. No. 17). Plaintiff Clifford Eaton has filed an objection to the Recommended Disposition (Dkt. No. 29).
After carefully considering the Recommended Disposition and the timely objections, and making a de novo review of the record in this case, the Court adopts the Recommended Disposition. Mr. Eaton, a Bureau of Prisons (“BOP”) inmate proceeding pro se under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., alleges that the United States, through its employees at the Federal Correctional Institution - Forrest City Medium (“FCI-FC”), was negligent in providing him dental treatment (Dkt. No. 2). He alleges that, during the delay in treatment, he continuously suffered significant pain and that he ultimately had to have a tooth extracted.
Although it is undisputed that Mr. Eaton did not receive the recommended dental fillings while he was housed at FCI-FC, it is also undisputed that he was housed at FCI-FC for only six months following the dental examination by Dr. Stewart. During those six months, Mr. Eaton never reported any dental pain, nor did he submit any sick-call requests regarding his dental needs. Once transferred, Mr. Eaton was housed at FCI-Otisville for nearly a year before he underwent a comprehensive dental examination.
The United States moves to dismiss and argues that, because Mr. Eaton has not retained a medical expert, he is not able to meet his burden to prove the three elements. Magistrate Judge Deere, in the Recommended Disposition, recommends granting the motion for summary judgment as to Mr. Eaton’s claim.
First, this Court notes that Mr. Eaton filed his complaint pursuant to the FTCA. Congress enacted the FTCA as a limited waiver of the sovereign immunity of the United States. Johnston v. United States, 85 F.3d 217, 218-19 (5th Cir. 1996) (citing United States v. Kubrick, 444 U.S. 111, 117-18 (1979)). Subject to some exceptions, the United States is liable in tort for certain damages caused by the negligence of any employee of the Government “if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Substantive state law determines whether a cause of action exists. F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994) (state law is the source of substantive liability under the FTCA); Johnston, 85 F.3d at 219. Therefore, this Court turns to Arkansas law.
Mr. Eaton’s claim that he was denied medical care for his dental issue is governed by the Arkansas Medical Malpractice Act. In an action for medical injury, under Arkansas law, a plaintiff must prove the applicable standard of care and a deviation therefrom, unless the asserted negligence is a matter of common knowledge. Ark. Code Ann. §16-114-206(a)(1)-(2). Specifically, the Act states that:
(a) In any action for medical injury, when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:
(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;
(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard.
Ark. Code Ann. § 16-114-206(a)(1)-(2). The Arkansas Supreme Court has stated that it is “well settled” that “a plaintiff must present expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence.” Robson v. Tinnin, 911 S.W.2d 246, 249 (Ark. 1995). In Broussard v. St. Edward Mercy Health System, Inc., 386 S.W.3d 385 (Ark. 2012), the Arkansas Supreme Court struck down a portion of the Arkansas Medical Malpractice Act requiring that the expert testimony be provided only by a medical care provider of the same specialty as the defendant. The remainder of § 16-114-206(a)(1) and (2) was unaffected and remains controlling law in this case.
When expert testimony is required for proof of a plaintiff’s claim for medical malpractice, and the defendant demonstrates the plaintiff’s failure to produce the requisite expert testimony, then the defendant has demonstrated that no genuine issues of material fact exist for presentation to a jury, and the defendant is entitled to summary judgment as a matter of law. Tinnin, 911 S.W.2d at 250. The Eighth Circuit has applied expert affidavit requirements derived from state law to medical malpractice claims filed under the FTCA. Bellecourt v. United States, 994 F.2d 427 (8th Cir. 1993) (affirming dismissal of prisoner’s medical malpractice claims filed under the FTCA because the prisoner failed to present an expert affidavit as required by Minnesota law).
Under Arkansas law, Mr. Eaton’s claim that the defendants failed to provide treatment for a dental issue requires expert testimony establishing the standard of care. When confronted by a motion for summary judgment challenging his claim, Mr. Eaton has provided no such expert testimony. This Court is not persuaded by the record evidence, even drawing all reasonable inferences in his favor, that Mr. Eaton’s claim survives summary judgment. Mr. Eaton’s claim must be dismissed for failure to satisfy the requirements of the Arkansas Medical Malpractice Act.
The Court acknowledges that there is a narrow exception to the necessity of expert testimony-when the asserted negligence lies within the jury’s comprehension as a matter of common knowledge. Ark. Code Ann. §16-114-206(a). The necessity of a tooth extraction and the extraction’s relation to a delayed dental filling are not matters within the common ...