James v. Oakland Police Department

          ORDER GRANTING SUMMARY JUDGMENT FOR DRS. ENGLISH, ADLER AND KANG RE: DKT. NO. 80

          SUSAN ILLSTON UNITED STATES DISTRICT JUDGE.

         Dennis 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.

         BACKGROUND

         The following facts are undisputed unless otherwise noted.

         Before 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.^[1]

         On 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.

         The 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.

         In the field, before he arrived at the hospital, James had a GCS score of 8. Dkt. No. 80-1 at 46, 58.

         James 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 8." Id.

         Dr. 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.

         Dr. 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.

         Arturo 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 discharge." Id.

         During 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.

         At 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.

         James 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.

         The 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).

         In 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).

         James 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.

         A declaration from defendant's expert, Dr. Hugh West, provides the only expert evidence about the treatment of James.^[2] 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 ...