United States District Court, N.D. California
ORDER GRANTING SUMMARY JUDGMENT FOR DRS. ENGLISH,
ADLER AND KANG RE: DKT. NO. 80
ILLSTON UNITED STATES DISTRICT JUDGE.
Lamar James, Jr. filed this pro se civil rights
action under 42 U.S.C. § 1983 concerning his arrest on
February 19, 2012 and hospital stay later that day. All of
the claims in this action have been resolved in other orders,
except for James' claims against three doctors for
professional negligence and fraud. Those three doctors now
move for summary judgment on the professional negligence and
fraud claims. James opposes the motion. For the reasons
discussed below, summary judgment will be GRANTED in favor of
doctor-defendants. Judgment will now be entered against James
on all of his claims.
following facts are undisputed unless otherwise noted.
turning to the chronology of events, it is necessary to
briefly explain the Glasgow Coma Scale ("GCS"),
which is used by medical personnel "to provide a
reliable, objective way of recording the conscious state of a
person for initial as well as subsequent assessment. A
patient is assessed against the criteria of the scale, and
the resulting points give a person [a] score between 3
(indicating deep unconsciousness) and 15 (fully awake
person), " based on eye, verbal, and motor responses.
Dkt. No. 80-1 at 85.
February 19, 2012, Oakland police officers responded to
reports that a man was banging his head on cars and attacking
people. See Dkt. Nos. 96-9 at 3-4; Dkt. No. 38 at 2.
Oakland police officers arrested James, and fired Tasers at
James repeatedly during the course of his arrest. Dkt. No. 38
at 2. After he was arrested, James was taken by ambulance to
Highland Hospital in Oakland. Id. at 6.
three moving defendants are Dr. Naomi Adler, Dr. David
English, and Dr. Eugenia Kang. Dkt. No. 80 at 5. These three
doctors were licensed to practice medicine in California and
worked at Highland Hospital on February 19, 2012.
See Dkt. No. 80-2 at 53-78.
field, before he arrived at the hospital, James had a GCS
score of 8. Dkt. No. 80-1 at 46, 58.
arrived at Highland Hospital at approximately 2:49 p.m. Dkt.
No. 80-2 at 5. He was made a "Level 1 trauma
activation" because his GCS in the field was "only
English and Dr. Adler evaluated James in the emergency
department. Id. Dr. English noted that James'
vital signs were within normal limits and that there were
Taser barbs in James' left anterior chest, left abdominal
flank, and left bicep. Id. Dr. English also noted
normal heart rate and rhythm, as well as extensive abrasion
on both hand and knees. Id. Dr. English noted no
suicidal ideation. Id. Dr. English noted that
James' GCS was 9. Id.; Dkt. No. 80-1 at 45.
Kang also evaluated James and noted that he had been tased
and had an altered level of consciousness and a GCS of 8 in
the field. Dkt. No. 80-2 at 5; see also Dkt. No.
80-1 at 58. James had brow, cheek and chin abrasions and
Taser barbs in his left chest, left flank and left biceps,
and a GCS improved to 10 on Dr. Kang's assessment. Dkt.
No. 80-2; see also Dkt. No. 80-1 at 58. Chest x-ray
and CT scans to assess plaintiff's head, face, cervical
spine, chest, abdomen and pelvis were obtained. Dkt. No. 80-2
at 5. The Taser barbs were removed and plaintiff's wounds
were cleaned and covered with sterile gauze. Id.
Garcia, M.D. (who is not a defendant) also evaluated James
and noted normal vital signs, multiple abrasions to the face,
abrasions and swelling to the right forehead, abrasions to
the right periorbital area and right maxilla. Id.
James' pupils were equal, round and reactive to light,
and it was noted that he might have a broken right incisor.
Id. His heart had a regular rate and rhythm with 2
femoral pulse, and abrasions to bilateral knees, toes,
wrists, knuckles and his right shoulder. Id. Dr.
Garcia documented a GCS of 9, and that plaintiff was opening
his eyes to voice, and continued not to phonate, although he
appeared to understand everything that was said, as he
followed all directions. Id. In addition, plaintiff
was noted to have three Taser darts lodged in his
subcutaneous tissue in his left chest, left biceps and left
flank. Id. at 5-6. Dr. Garcia also noted that the
results of a chest x-ray and CT scans of plaintiff's
head, face, cervical spine, chest, abdomen and pelvis were
all negative. Id. at 6. Dr. Garcia's clinical
impression stated: "This is a 36-year-old gentleman
[who] came in because of altered mental status resisting
arrest [and] multiple [T]aser injuries. Other than some
superficial abrasions and broken right incisor, he had no
other visible injury clinically or on imaging studies. His
C-spine was cleared and he was stable enough for discharge
into custody. He will just need to follow up with OMFS for
his broken tooth. Currently, his abrasions are being
thoroughly washed and TTS will be performed prior to
James' stay at the hospital, attending trauma surgeon
Terence Liu, M.D., communicated with the trauma team
residents, who informed Dr. Liu of James' condition, the
residents' assessment, the results of the chest x-ray and
several CT scans that were negative, and their plan to treat
plaintiff as documented in his medical records. Id.
approximately 6:10 p.m., a trauma team resident completed the
Tertiary Trauma Survey (also known as "TTS"), which
serves as the trauma team's "once over" of a
patient before discharge. Id. As part of the TTS,
the trauma team again reviewed James' vital signs, GCS,
injuries, and negative x-ray findings and determined that he
was stable for discharge. Id. The TTS form from the
hospital shows GCS scores of "E: 3 V: 5 M: 6, "
which would yield a GCS of 14. Dkt. No. 80-1 at 56.
was discharged at 6:45 p.m., given instructions, and
prescribed medications which were reviewed with him. Dkt. No.
80-2 at 6. His vitals remained stable. Id. James was
given prescriptions for Vicodin and Colace and he was
referred to the dental drop-in clinic. Id. James was
escorted through the ambulance bay by Oakland Police
Department officers, id., with James leaving in a
wheelchair. Dkt. No. 101 at 20.
parties disagree as to whether James spoke when he was at the
hospital. According to James, he "was nonverbal"
and "no doctor ever asked [him] any questions"
during his stay at the hospital. Dkt. No. 101 at 19. But
James also states that he was "not totally conscious,
" was in an "altered conscious state, " Dkt.
No. 101 at 15-16, and declares under penalty of perjury he
"had an acute altered mental status, altered level of
conscious." Id. at 19. He does not explain how,
being in such a state, he would know that he was never asked
any questions or that he was nonverbal throughout his stay.
James was verbal before he even left the scene of the crime,
as shown in the video recording of his arrest. On that video
recording, much of what he was uttering while he waited for
the ambulance was gibberish, but some phrases -- such as his
repeated statements "Ok, got that" at about 11:04,
and "ok" at 16:04 on the recording as he apparently
tried to calm himself -- are understandable speech.
See Dkt. No. 96-8 (Exhibit A, manually filed).
contrast to James' evidence that he was nonverbal,
defendant's expert, Dr. Hugh West, declares that James
had a GCS score of 15 when he left the hospital. Dkt. No.
80-2 at 6. To receive a GCS score of 15, James would have had
to be "oriented, convers[ing] normally."
See Dkt. No. 80-1 at 85; Dkt. No. 101 at 22; but
see Dkt. No. 80-1 at 56 (TTS form showing GCS scores of
E-3, V-5 and M-6, which would indicate a GCS of 14).
states that he "was suicidal" during his hospital
stay. Dkt. No. 101 at 19. There is no evidence, however, that
James told anyone at the hospital that he was suicidal. James
states that his knee was injured, but there is no evidence
that he told or otherwise informed anyone at the hospital of
any problem with his knee. In one filing, James stated he did
not notice his knee was "unoperable" until after he
left the hospital and got to the jail. Dkt. No. 60 at 4.
declaration from defendant's expert, Dr. Hugh West,
provides the only expert evidence about the treatment of
James. According to Dr. West, the "standard
of care for treating a patient such as [James] who has been
tased includes review of his vital signs, removal of the
taser barbs, local skin injury care, with some degree of
observation and cardiac assessment." Dkt. No. 80-2 at 7.
Dr. West opined "that Dr. English, Dr. Kang and Dr.
Adler at all times complied with the standard of care, and
that to a reasonable probability no alleged act or omission
caused any of plaintiff's alleged injuries."
Id. at 4. Dr. West also opined:
There was no indication for a formal psychiatric consultation
on this patient based on the overall evaluation reflected in
the chart, especially in the absence of any indication of
suicidal ideation. The patient followed commands readily. At
the time of Mr. James' discharge, his GCS had improved to
15 (a perfect score), and he was in stable condition. Dr.
English, Dr. Adler and Dr. Kang therefore appropriately
discharged Mr. James to police custody with the expectation
that he would be taken to a correctional facility, where he
would be further observed and evaluated by the appropriate