Cramer v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JAMES MELVIN CRAMER,

Plaintiff,

v. Case No. 3:13-cv-262-J-39JRK

DOCTOR CHRISTOPHER BEISER, et al.,

Defendants.

___________________________________

ORDER

I. Status

Plaintiff, James Melvin Cramer, an inmate of the Florida penal

system, is proceeding on an Amended Complaint (Doc. 14; Am.

Compl.), which he filed himself. Plaintiff is now represented by

Court-appointed counsel. See Order (Doc. 101). In his Amended

Complaint, which is verified under penalty of perjury, Plaintiff

asserts Defendants, Dr. Page A. Smith and Dr. J. Jorge-Caraballo,

were deliberately indifferent to his serious medical needs in

violation of the Eighth Amendment. Am. Compl. at 6, 16-17, 21.1

Plaintiff alleges the following injuries: loss of balance,

1 In his Amended Complaint, Plaintiff also names as defendants

Dr. Christopher Beiser and the Secretary of the Florida Department

of Corrections (DOC) Michael Crews. See Am. Compl. at 1. On August

15, 2014, the Court granted Crews’s motion to dismiss and dismissed

him from this action (Doc. 61). On July 13, 2018, pursuant to

Plaintiff’s and Dr. Beiser’s joint motion for dismissal, the Court

entered an order dismissing Dr. Beiser (Doc. 128).

dizziness, loss of focus, confusion, motion sickness, loss of

hearing, loss of equilibrium, aggravated kidney disease, anemia,

and hallucinations. Id. at 23. As relief, Plaintiff seeks

compensatory and punitive damages. Id. at 24.

Before the Court are the following motions: Plaintiff’s

Motion for Summary Judgment (Doc. 148; Pl. Motion), to which

Defendants have responded (Doc. 154; Def. Resp.); Defendants’

Motion for Summary Judgment (Doc. 153; Def. Motion), to which

Plaintiff has responded (Doc. 156; Pl. Resp.); and Plaintiff’s

Motion for Discovery from Non-Party (Doc. 146; Disc. Motion), which

Defendants oppose (Doc. 152; Disc. Motion Resp.).

II. Summary Judgment Standard

Under Rule 56, “[t]he court shall grant summary judgment if

the movant shows that there is 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). An issue is genuine when the

evidence is such that a reasonable jury could return a verdict in

favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93

F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville

Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere

scintilla of evidence in support of the non-moving party’s

position is insufficient to defeat a motion for summary judgment.”

Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,

1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden

of demonstrating to the court, by reference to the record, that

there are no genuine issues of material fact to be determined at

trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th

Cir. 1991). The record to be considered on a motion for summary

judgment may include “depositions, documents, electronically

stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” Rule

56(c)(1)(A).

“When a moving party has discharged its burden, the non-

moving party must then go beyond the pleadings, and by its own

affidavits, or by depositions, answers to interrogatories, and

admissions on file, designate specific facts showing that there

is a genuine issue for trial.” Jeffery v. Sarasota White Sox,

Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (internal citations

and quotation marks omitted).

On summary judgment, a party opposing the motion must point

to evidence in the record to demonstrate a genuine dispute of

material fact. Fed. R. Civ. P. 56(c)(1). Substantive law determines

the materiality of facts, and “[o]nly disputes over facts that

might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson, 477

U.S. at 248. In determining whether summary judgment is

appropriate, a court “must view all evidence and make all

reasonable inferences in favor of the party opposing summary

judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.

1995) (citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del

Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

When a court is presented with cross motions for summary

judgment, the court must evaluate each motion separately to

determine whether either party is entitled to the relief sought.

In accordance with Rule 56, when evaluating the merits of each

motion, the court must construe the facts in the light most

favorable to the non-moving party. See 10A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 2720 (4th ed.,

August 2019 update) (“The court must rule on each party’s motion

on an individual and separate basis, determining, for each side,

whether a judgment may be entered in accordance with the Rule 56

standard.”).

III. Complaint Allegations2

In his Amended Complaint, Plaintiff alleges Defendants were

deliberately indifferent to his serious medical needs with respect

2 Because Plaintiff is now represented by counsel, who has

supported his motion with evidence, the Court provides an

abbreviated summary of Plaintiff’s factual allegations in his

Amended Complaint.

to the administration of an intravenous (IV) antibiotic,

gentamicin. Am. Compl. at 8, 17. Plaintiff alleges he was admitted

to the Reception and Medical Center (RMC) hospital ward on January

3, 2010, because he had trouble overcoming complications following

the removal of a boil from his buttocks. Id. at 6.

Plaintiff alleges gentamicin is highly toxic, and he was more

susceptible to toxicity than other patients because he had a kidney

disorder. Id. at 15-16. According to Plaintiff, the

“manufacturer’s label specifically warns about closely monitoring

[for] toxicity . . . in patients with preexisting kidney problems.”

Id. at 13. Plaintiff asserts Drs. Smith and Jorge knew Plaintiff

had not been tested for gentamicin toxicity.3 Id. at 15-16, 21-22,

23.

Plaintiff asserts he displayed and complained of symptoms

associated with toxicity from January 20, 2010, through February

10, 2010, including vomiting, dizziness, lack of balance, ringing

in the ears, and nausea. Id. at 18, 22. Plaintiff alleges that

despite his verbal complaints and outward symptoms of toxicity,

and in contravention of the manufacturer’s recommendations,

3 Plaintiff alleges he was primarily under the care of former-

Defendant Christopher Beiser, who was then a medical student under

Defendants’ supervision. Am. Compl. at 11, 24. Plaintiff alleges

Dr. Smith prepared a treatment plan after reviewing the results of

initial tests, and then Dr. Smith placed Plaintiff in the hands of

the medical student. Id. at 12. Plaintiff asserts Drs. Smith and

Jorge failed to adequately train or supervise the medical student.

Id. at 7-8.

Defendants did not order tests to monitor gentamicin levels in his

blood until February 10, 2010, thirty-seven days (111 doses) after

the treatments began. Id. at 14, 16.

IV. Plaintiff’s Motion

Plaintiff moves for summary judgment on the issue of

liability. Pl. Motion at 1. According to Plaintiff, Defendants’

conduct constitutes more than mere (or gross) negligence. Id. at

4, 13-14, 15 n.5. Plaintiff contends the evidence shows Defendants

were aware of the risks involved in the administration of

gentamicin in a patient with renal insufficiency, knew what needed

to be done to avoid or minimize the known risks, and failed to

take appropriate action with no medical justification for failing

to do so. Id. at 4, 17.

Specifically, Plaintiff asserts Defendants failed, for five

weeks, to test the gentamicin levels in his blood despite knowing

periodic tests were indicated and despite Plaintiff’s complaints

and symptoms that should have put them on notice he was

experiencing possible gentamicin toxicity. Id. at 13-14. Plaintiff

concludes, “Defendants consciously made numerous treatment

decisions and entered numerous orders daily over the course of

more than 5 weeks . . . knowing . . . they also needed to monitor

that treatment. . . . [T]he conscious failure of Defendants to

have acted on their actual knowledge sooner epitomizes ‘deliberate

indifference.’” Id. at 15 n.5.

V. Defendants’ Motion

Defendants argue Plaintiff fails to establish they were

deliberately indifferent to a serious medical need and fails to

show they did not adequately train or supervise Dr. Beiser.4 Def.

Motion at 17, 19. They also assert they are entitled to qualified

immunity. Id. at 21-22. Finally, Defendants assert Plaintiff fails

to demonstrate a physical injury under 42 U.S.C. § 1997e(e),

stating his claimed injuries are either pre-existing or not

causally related to gentamicin toxicity. Id. at 20-21.

As to Defendants’ argument regarding a failure to train or

supervise claim, Plaintiff clarifies his claims against Defendants

are not premised on vicarious or supervisory liability but rather

on the “actions and omissions that lay exclusively within the scope

of Defendants’ known duties.” Pl. Resp. at 1-2. Plaintiff

acknowledges he does not claim to have suffered harm because of

Dr. Beiser’s deliberate indifference or his failure to follow Drs.

Smiths’ or Jorge’s instructions. Id. at 2. As such, Defendants’

motion with respect to a claim for failure to train or to supervise

is moot.

4 It is undisputed that when Plaintiff was treated at RMC,

Christopher Beiser was a medical student. However, the Court

acknowledges Beiser’s current status as a physician and will use

the appropriate designation of “Dr.” when referencing him.

VI. Facts5

This case boils down to whether and when a physician’s course

of treatment crosses the line from mere negligence, which is not

actionable under § 1983, to deliberate indifference, which is.

Generally, the parties do not dispute the facts related to

Plaintiff’s course of treatment. For instance, in their

declarations (Doc. 153-1; Def. Ex. A) (Doc. 153-2; Def. Ex. B),

Defendants acknowledge Plaintiff’s admission to RMC was

precipitated by an infection on his buttocks. Def. Ex. A ¶ 8; Def.

Ex. B ¶ 7. According to the “physician’s order sheets” (Doc. 148-

8; RMC Phys. Orders), and as confirmed by Defendants in their

depositions (Doc. 148-5; Smith Dep.) (Doc. 148-6; Jorge Dep.),

Joseph Charles, M.D., was on duty when Plaintiff was admitted to

RMC. Smith Dep. at 48; Jorge Dep. at 45; RMC Phys. Orders at 1.

5 Because the Court is presented with cross motions for

summary judgment, the facts are drawn from the exhibits Plaintiff

and Defendants offer in support of their motions. Defendants’

exhibits will be cited as “Def. Ex.” followed by the letter

designation Defendants assign each exhibit (for example, “Def. Ex.

A”). Plaintiff does not individually label his motion exhibits;

rather, Plaintiff’s exhibits appear in various places on the

Court’s docket. See Plaintiff’s amended exhibit index (Doc. 149-

1). As such, the Court will cite Plaintiff’s exhibits by reference

to the document type or the document’s contents. When referencing

either party’s exhibits for the first time, the Court will indicate

the document number and identify how the Court will subsequently

cite the exhibit. In some instances, Plaintiff and Defendants offer

the same exhibits. In those instances, the Court will cite the

exhibit by reference to one document number only. Page numbers

reflect the pagination assigned by the Court’s electronic

docketing system.

The RMC healthcare authorization form (Doc. 153-3; Def. Ex. C)

notes Plaintiff arrived via wheelchair and was in “fair” condition.

Def. Ex. C at 1. Dr. Charles ordered blood panels and, in addition

to another antibiotic, ordered 120 milligrams (mg) of gentamicin

(the “loading dose”) to be followed by 80 mg for seven days (the

“maintenance dose”). RMC Phys. Orders at 1; Def. Ex. C at 1; Smith

Dep. at 31-32.6

The RMC admission report (Doc. 153-9; Def. Ex. I) is co-

signed by Dr. Smith and Dr. Beiser. The admission report notes

doctors were awaiting the results of a complete blood count (CBC)

and a basic metabolic panel (BMP), and “broad spectrum antibiotics”

were started to treat Plaintiff’s peri rectal abscess. Def. Ex. I

at 5.7 Initial blood test results (Doc. 148-7; RMC Labs) revealed

Plaintiff had an infection identified as methicillin resistant

staphylococcus aureus (MRSA), which Dr. Smith testified is

difficult to treat. Smith Dep. at 52; RMC Labs at 3. Dr. Smith

testified at deposition Plaintiff’s initial blood tests also

6 In his deposition, Dr. Smith explained the initial dose of

gentamicin, referred to as the loading dose, is usually higher

than the maintenance dose. Smith Dep. at 31. The loading dose is

administered one time. Id. at 32.

7 The admission report notes the date of admission was January

4, 2010. Def. Ex. I at 5. Other records, however, indicate the

date of admission was January 3, 2010. RMC Phys. Orders at 1; Def.

Ex. I at 6, 8.

showed he suffered borderline renal insufficiency. Smith Dep. at

15. See also RMC Labs at 1.

Plaintiff offers the affidavit of Dr. Beiser (Doc. 156-1;

Beiser Aff.). Dr. Beiser explains, as a medical student, he “had

no authority to treat patients, prescribe medications, or order

tests or examinations for them.” Beiser Aff. ¶ 7. Rather, decisions

regarding patient care and treatment “lay exclusively with the

licensed attending physicians.” Id. The physician’s order sheets

confirm Dr. Beiser was not the one to order medications or tests.

Rather, Drs. Smith and Jorge primarily did so. See generally RMC

Phys. Orders. On January 12, 2010, Dr. Jorge ordered gentamicin at

80 mg for seven days. Id. at 6. Dr. Smith ordered gentamicin at 80

mg for seven days on January 19, 2010, January 24, 2010, February

1, 2010, and February 9, 2010. Id. at 8-10, 13.

According to the RMC doctor’s progress notes (Doc. 153-9;

Def. Ex. I) and nurse’s notes (Doc. 153-14; Def. Ex. N), Plaintiff

was evaluated daily between January 3, 2010, and the date of

discharge, February 19, 2010.8 Over this time, Plaintiff complained

of hearing loss, dizziness, nausea, and vomiting. Def. Ex. I at

16, 17, 22, 24. On January 23, 2010, Dr. Marie J. Garcon noted

Plaintiff complained of vomiting. Id. at 16. Also on January 23,

2010, a nurse noted Plaintiff “continues to be deaf in [left] ear,

8 The doctor’s progress notes contain no entry for January

29, 2010. See RMC Phys. Orders at 18.

and [is] hard of hearing in [right] ear.” Def. Ex. N at 43. On

January 25, 2010, Dr. Smith changed a medication (not gentamicin),

noting Plaintiff attributed his recent bout of nausea and vomiting

to his receipt of that medication. Def. Ex. I at 17. On January

27, 2010, a nurse noted Plaintiff was “hard of hearing/deaf.” Def.

Ex. N at 51. On February 8, 2010, Plaintiff complained of

dizziness, which he said started the week before and was constant

over the weekend. Def. Ex. I at 22.

On February 10, 2010, Plaintiff complained he had nausea and

vomiting the previous night. Id. at 24. Dr. Smith ordered a CBC

and BMP in response to Plaintiff’s complaints. Dr. Smith directed

antibiotics be continued to treat the abscess. Id. On February 11,

2010, Dr. Jorge ordered Zofran and Phenergan (for nausea), RMC

Phys. Orders at 14, and Plaintiff reported no longer feeling

nauseous, Def. Ex. I at 24. On that same day, Dr. Jorge lowered

the gentamicin dosage to 40 mg for eighth hours. RMC Phys. Orders

at 14.

On February 12, 2010, Dr. Jorge ordered a “STAT BMP” and

discontinued the gentamicin. Id. at 15; see also Def. Ex. I at 25.

On February 15, 2010, Dr. Jorge noted Plaintiff’s abscess was not

healing and his creatinine and “BUN” levels were rising.9 Def. Ex.

9 According to Dr. Smith, gentamicin is filtered by the

kidneys. Smith Dep. at 11. High levels of gentamicin in the blood

system is an indication the kidneys are not processing the drug;

the higher level of the drug in the blood, the more likely toxicity

I at 26. On February 17, 2010, a different physician ordered a CBC

and BMP. Id. at 27; RMC Phys. Orders at 17. On February 18, 2010,

Dr. Smith noted Plaintiff’s creatinine levels had increased and

ordered a BMP. Def. Ex. I at 27.

On February 19, when Plaintiff showed no signs of improvement,

Dr. Smith transferred Plaintiff to Memorial Hospital Jacksonville

(MHJ). The discharge summary (Doc. 148-10; RMC Disch. Summ.), co-

signed by Dr. Beiser and Dr. Smith, notes the following course of

treatment and reason for transfer:

After several weeks of IV antibiotics

[Plaintiff’s] BUN and creatinine began to

rise. Antibiotics were discontinued and

[Plaintiff] was hydrated with [fluids] . . .

with repeated BMPs. BUN and creatinine

continued to trend downwards. [Plaintiff] was

no longer able to be treated with IV

antibiotics. He has subsequently developed a

left lower quadrant pain that became tender to

touch. CT machine was not working. We were

unable to get a CT due to the machine not

working on Friday. Subsequently, it was

discussed with the surgeon at Regional

Memorial and he was transferred.

RMC Disch. Summ. at 4. See also Def. Ex. A ¶ 15; Def. Ex. B ¶ 14.10

When Plaintiff was transferred to MHJ, he was in “obvious kidney

is an issue. Id. BUN and creatinine measurements help show a

patient’s kidney function. Id. at 14-15. BUN measures “[n]itrogen

waste products from protein metabolism,” and creatinine is a

“chemical or enzyme that’s broken down . . . and filtered through

the kidneys.” Id.

10 After physicians at MHJ stabilized Plaintiff, on February

23 or 24, 2010, Plaintiff returned to RMC. See Doc. 153-10 (Def.

Ex. J) at 6, 9. Dr. William Nields, the RMC admitting physician,

failure.” Jorge Dep. at 29-30. See also Smith Dep. at 19. Dr. Smith

testified at deposition, based on a comparison of the blood tests

on January 4, 2010, and February 10, 2010, Plaintiff’s “kidney

functioning deteriorated” during that time. Smith Dep. at 19.

Defendants acknowledge in their responses to Plaintiff’s

counseled interrogatories (Doc. 131-5; Smith Interrog.) (Doc. 131-

6; Jorge Interrog.), gentamicin administration carries potentially

serious side effects, including nephrotoxicity (damage to the

kidneys) and ototoxicity (damage to the ears, including hearing

loss and equilibrium issues). Smith Interrog. ¶ 2; Jorge Interrog.

¶ 1. See also Smith Dep. at 9-10, 14; Jorge Dep. at 40-41. The

Federal Drug Administration (FDA) warns gentamicin “is potentially

nephrotoxic,” the risk of which is “greater in patients with

impaired renal function and in those who receive high dosage or

prolonged therapy” (Doc. 149-2; FDA Warning). Additionally, the

FDA warns, “[n]eurotoxicity manifested by ototoxicity . . . can

occur in patients treated with gentamicin, primarily in those with

pre-existing renal damage.” FDA Warning at 1. According to the FDA

warning, “[p]atients treated with [gentamicin] should be under

close clinical observation because of the potential toxicity

associated with [its] use.” Id. The warning provides, “[s]erum

noted Plaintiff’s chief complaint was dizziness. Id. at 6-7.

Plaintiff was ultimately discharged from RMC on February 24, 2010.

concentration levels of [the drug] should be monitored when

feasible to assure adequate levels and to avoid potentially toxic

levels.” Id.

Dr. Smith testified at deposition that he knew, when he

treated Plaintiff, a patient with renal (kidney) insufficiency is

more susceptible to the risks associated with gentamicin. Smith

Dep. at 15-16. Dr. Jorge, on the other hand, denied having had

such knowledge. Jorge Dep. at 15. In his answers to

interrogatories, Dr. Jorge simply acknowledges he was “aware of

the side effects of gentamicin use.” Jorge Interrog. ¶ 2. Dr. Jorge

did not state he knew when he treated Plaintiff that such side

effects are heightened in a patient with renal insufficiency. Id.

Drs. Smith and Jorge both also knew when they treated Plaintiff a

patient’s complaints of hearing difficulty and dizziness could

possibly be symptoms of gentamicin toxicity. Smith Dep. at 26, 27;

Jorge Dep. at 40. However, they contend nausea and vomiting are

“nonspecific” symptoms, which can be caused by anything. Smith

Dep. at 28; Jorge Dep. at 41.

Dr. Smith and Dr. Jorge each knew when they treated Plaintiff

the risks associated with gentamicin can be lessened or avoided

through “routine” monitoring of kidney function and testing

gentamicin levels in the blood stream. Smith Dep. at 10-12; Jorge

Dep. at 18, 56-57; Smith Interrog. ¶¶ 2, 3; Jorge Interrog. ¶ 2.

However, they disagree on when monitoring should occur. Dr. Smith

testified at deposition all patients who receive gentamicin should

be monitored every three to five days or at least once a week,

regardless of the patient’s kidney function at the start of the

treatment. Smith Dep. at 11, 33. Dr. Smith stated, “[t]here should

have been an order to check [Plaintiff’s] [g]entamicin level

probably after the third or fifth dose and then his kidney function

once a week thereafter,” but that was not done. Id. at 17, 55.

On the other hand, Dr. Jorge maintains there is no set

schedule for monitoring gentamicin levels but rather monitoring is

a matter of medical judgment and physician discretion. Jorge Dep.

at 24; Jorge Interrog. ¶ 10. Dr. Jorge states in his answers to

interrogatories, “[i]t was not common practice to have a set

periodic test. The tests were ordered based on a physician’s

analysis of the situation.” Jorge Interrog. ¶ 10. According to Dr.

Jorge’s analysis of the situation, the symptoms Plaintiff reported

during his treatment (hearing loss, dizziness, nausea, and

vomiting) did not indicate Plaintiff had gentamicin toxicity

because the symptoms Plaintiff reported “were probably already

chronic in him, like, unsteadiness, dizziness, all of those

symptoms.” Jorge Dep. at 24, 59.

Drs. Smith and Jorge concede Plaintiff’s blood was not tested

for gentamicin toxicity between January 3, 2010, and February 10,

2010, though they claim they had no knowledge such tests were not

being done. Smith Dep. at 12-13, 55; Jorge Dep. at 18; Smith

Interrog. ¶ 10; Jorge Interrog. ¶ 6. In their answers to

interrogatories, Defendants state blood tests were ordered to

monitor Plaintiff’s kidney function between January 4, 2010,

through February 10, 2010, but those tests did not report

gentamicin levels. Smith Interrog. ¶ 10; Jorge Interrog. ¶ 10. In

their motion, Defendants explain they failed to notice Plaintiff

was not being tested for toxicity because blood tests were being

performed periodically. Def. Resp. at 2. They say, “Defendants

were aware that blood test[s] . . . should have been ordered to

test for toxicity; however, since Plaintiff’s blood was being

tested [for other reasons], neither made the connection that his

blood was not being tested for toxicity.” Id.

Dr. Smith contends the failure to ensure gentamicin toxicity

testing was done is attributable to him and Dr. Jorge being over-

worked. Smith Interrog. ¶ 10. In his answers to interrogatories,

Dr. Smith states, “[t]he fact that [gentamicin] drug levels were

not completed [prior to February 10, 2010] was an oversight due to

[his and Dr. Jorge’s] heavy work load [sic]” resulting from a

shortage of physicians. Id. Dr. Smith testified at deposition he

and Dr. Jorge were the only two doctors on staff at the relevant

time but there should have been six doctors. Smith Dep. at 7, 48.

At deposition, Dr. Smith suggested other possible reasons the

tests had not been ordered: because a different physician (not he

or Dr. Jorge) started Plaintiff on gentamicin, and because Dr.

Beiser was the primary medical provider attending Plaintiff’s

care. Id. at 13. Dr. Smith recalled speaking with Dr. Beiser about

Plaintiff’s progress, but they did not talk about gentamicin

levels. Id. Dr. Smith explained, when he spoke with Dr. Beiser,

they “really didn’t talk about monitoring . . . [and] whenever

[Dr. Beiser] told [Dr. Smith] about the patient [Plaintiff] the

patient was doing fine.” Id.

Dr. Beiser avers he had no knowledge of the risks associated

with gentamicin at the time he treated Plaintiff, nor does he

recall Drs. Smith or Jorge providing any special instructions or

precautions regarding the administration of gentamicin. Beiser

Aff. ¶¶ 3, 10. Dr. Beiser states he “subsequently learned through

additional training and experience that a patient treated with

gentamicin (particularly one with renal deficiencies) should be

closely monitored due to risks of nephrotoxicity (impaired kidney

functioning) and ototoxity [sic] (impaired vestibular and auditory

functioning).” Id. ¶ 3.

In their declarations, Defendants aver, “[w]hen it was

determined that the [g]entamicin was affecting [Plaintiff]’s

kidneys, it was stopped, [Plaintiff] was given IV fluids and Renal

function was closely monitored through labs.” Def. Ex. B ¶ 13; see

also Def. Ex. A ¶ 14. They further declare they did not ignore any

complaints by Plaintiff or those reported to them by Dr. Beiser,

and they were not aware “Plaintiff’s blood was not being tested

for toxicity” prior to February 10, 2010. Def. Ex. A ¶¶ 16, 17;

Def. Ex. B ¶¶ 15, 16.

VII. Expert Witness Opinions

A. Defense Expert, Rakesh Sharma, M.D.

In his report (Doc. 153-7; Def. Ex. G), Dr. Sharma concludes

Plaintiff “was treated within the standard of care and there was

no action that was grossly incompetent, inadequate, or excessive

as to shock the conscience or to be intolerable to fundamental

fairness.” Def. Ex. G at 1. According to Dr. Sharma, on January 4,

2010, Plaintiff’s blood work showed his “[k]idney function was

normal and in fact better than it had been in 2009.”11 Id. at 2.

Dr. Sharma also notes Plaintiff was monitored daily by a medical

practitioner and his sugars were closely monitored through routine

blood tests. Id.

Dr. Sharma concludes the injuries Plaintiff associates with

Defendants’ treatment were either pre-existing, not related to the

gentamicin treatment, or not supported by subsequent medical

records. Id. at 3-4. Dr. Sharma’s overall conclusion is as follows:

[Plaintiff’s] . . . complaints are not

related to Gentamicin usage [but are] . . .

chronic complaints dating back to 2001 and

related to uncontrolled diabetes, neuropathy,

noncompliance, age related hearing loss, and

11 Notably, even Dr. Smith concedes Plaintiff’s January 4,

2010 blood work shows he had “borderline” renal insufficiency at

the time. Smith Dep. at 15; see also Doc. 153-13 (Def. Ex. M) at

3. There is no indication Dr. Smith or Dr. Jorge compared the

January 4, 2010 blood test results with previous test results.

hypertension. I see no evidence of actions

below the standard of care on [the] part of

the physicians who addressed his perirectal

abscess at RMC from January 3, 2010 to

February 19, 2010. There was no gross

incompetence or actions that would shock the

conscience on the part of the physicians.

There was no detriment to [Plaintiff] as a

result of the doctors’ actions.

Id. at 4.

B. Court-Appointed Expert, Loren J. Bartels, M.D., F.A.C.S.

In his report, (Doc. 119-1; Bartels Report), Dr. Bartels

explains he reviewed medical records from December 2009 through

April 2010. Dr. Bartels notes Plaintiff “developed significant

renal impairment in late 2009,” related to treatment for diabetes.

Bartels Report at 1. Dr. Bartels confirms Plaintiff received

gentamicin for about five weeks while at RMC. Id. Upon review of

the RMC records for that five-week period, Dr. Bartels was unable

to “find where BUN/Creatinine levels were sufficiently frequently

measured and did not find that gentamicin trough levels were

measured during that period of time.”12 Id.

With respect to the standard of care, Dr. Bartels states the

gentamicin doses administered to Plaintiff were too high given

12 In his deposition, Dr. Smith explained what “trough levels”

are: “The trough level is the blood level of [g]entamicin an hour

or so prior to giving the next dose.” Smith Dep. at 32. Dr. Smith

explained, if a patient has a “very high trough then that would be

an indication to decrease his dose.” Id. at 33. According to Dr.

Smith, the trough reading is more important than measuring the

peak level, which is the reading taken about an hour after a dose

of gentamicin is given. Id. at 32-33.

Plaintiff’s creatinine levels were elevated prior to his

hospitalization. Id. Dr. Bartels observes the doses given to

Plaintiff are those “normally given to patients who do not have

renal problems and are inappropriate in the context of even low

grade chronic kidney disease.” Id. at 2. Dr. Bartels continues,

“[r]egardless of renal status, gentamicin peak and trough levels

and frequent, at least biweekly, monitoring of BUN/creatinine

would be normal expected practice.” Id. Dr. Bartels observes,

“[g]entamicin dosing was not adjusted based on renal function and

renal function was not closely monitored during the Jan-Feb 2010

hospitalization.” Id. Dr. Bartels found nothing in the medical

records indicating either Drs. Smith or Jorge “attempted to

evaluate gentamicin toxicity sufficiently.” Id. at 4.

Dr. Bartels explains his opinions are somewhat limited based

on his area of expertise, which is in otology. Id. at 3. In that

regard, Dr. Bartels concludes “gentamicin within reasonable

medical probability caused ototoxic loss of vestibular function

and is with medical probability responsible for [Plaintiff’s]

permanent loss of balance.” Id. Plaintiff’s susceptibility to

ototoxicity was compounded by his “pre-existing renal dysfunction

aggravated by use of metformin.”13 Id. Dr. Bartels could not

13 Metformin is a medication used to treat diabetes. Smith

Dep. at 38. Plaintiff was taking metformin upon his admission to

RMC. Def. Ex. I at 5. Doctors continued to prescribe metformin for

Plaintiff during his hospital stay. See, e.g., RMC Phys. Orders at

conclude with certainty, and without testing, that Plaintiff’s

hearing worsened because of Defendants’ treatment, though he

states, “more likely than not, [Plaintiff’s] hearing worsened

because of the gentamicin toxicity.” Id.

C. Court-Appointed Expert, Donald C. Kern, M.D., M.P.H.

Dr. Kern provided his opinion on November 18, 2018 (Doc. 139-

2; Kern Report). Dr. Kern notes gentamicin “continues to be

effective against a variety of serious bacterial infections [and]

is often used in combination with other antibiotics as initial

treatment for serious infections.” Kern Report at 5. Dr. Kern

notes, however, despite gentamicin’s effectiveness, it “has a

number of well recognized potential side effects,” including

kidney and ear damage. Id.

Dr. Kern explains a patient with pre-existing kidney or ear

problems may be at greater risk of these side effects, though the

risks may be mitigated by “adjusting the dosage and/or the interval

dosing of gentamicin to manage the concentration of the drug.” Id.

at 6. According to Dr. Kern, the standard method to monitor the

concentration of gentamicin in a patient’s system is by “measuring

peak and trough” levels. Id. Dr. Kern observes, “[b]lood tests for

gentamicin concentration have . . . been available for decades.”

3. A physician at MHJ noted in Plaintiff’s discharge summary (Doc.

153-6; Def. Ex. F) that metformin “is not recommended for people

with renal insufficiency.” Def. Ex. F at 1.

Id. Dr. Kern concludes to a reasonable degree of medical certainty

that Plaintiff suffered “at least one serious medical need as a

result of the administration of gentamicin,” which was recognized

when Plaintiff began to show signs of decreased kidney function.

Id. at 6.

Dr. Kern opines Drs. Smith and Jorge “were aware of facts

from which they could draw the inference that their course of

treatment presented a substantial risk of serious harm to

Plaintiff.” Id. at 7. In example, Dr. Kern notes Drs. Smith and

Jorge held titles suggesting their competence (Medical Executive

Director and Senior Physician respectively). Dr. Kern notes the

“potential risks of gentamicin are long standing and well known to

primary care physicians” and observes, both Drs. Smith and Jorge

acknowledge in their responses to Plaintiff’s interrogatories they

were aware of potential risks associated with gentamicin. Id. Given

Drs. Smith and Jorge were aware of the risks associated with

gentamicin, knew Plaintiff presented with abnormal kidney

function, and signed or co-signed most of the progress notes, Dr.

Kern concludes Drs. Smith and Jorge were aware their course of

treatment presented a substantial risk of serious harm to

Plaintiff. Id. at 7, 8.

Additionally, Dr. Kern opines Drs. Smith and Jorge “actually

drew the inference” their course of treatment posed a substantial

risk of serious harm yet persisted in that course of treatment

anyway. Id. at 7. Of significance to Dr. Kern was Dr. Jorge’s

decision to lower the dose of gentamicin when Plaintiff complained

of side effects, indicating “an awareness that medication

concentration is related to the development of potential side

effects.” Id. Dr. Kern notes the medical records show “Defendants

persisted in the use of gentamicin, extending the order week by

week without ever checking levels.” Id.

VIII. Legal Analysis & Conclusions of Law

A. Deliberate Indifference

An Eighth Amendment claim for deliberate indifference may not

be sustained where a plaintiff demonstrates conduct that amounts

to negligence or oversight. Farrow v. West, 320 F.3d 1235, 1245

(11th Cir. 2003) (citing Estelle v. Gamble, 429 U.S. 97, 106

(1976); Farmer v. Brennan, 511 U.S. 825, 835 (1970)). Likewise,

“an 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.” Daniels

v. Jacobs, 753 F. App’x 748, 759 (11th Cir. 2018).

While medical negligence does not constitute an Eighth

Amendment violation, a deliberate indifference claim may be

“satisfied by something less than acts or omissions for the very

purpose of causing harm or with knowledge that harm will result.”

Farmer, 511 U.S. at 835. To prove a deliberate indifference claim,

a plaintiff must “satisfy both an objective and a subjective

inquiry.” Farrow, 320 F.3d at 1243. First, a plaintiff must show

he had an “objectively serious medical need.” Id. Next, the

plaintiff must demonstrate the medical provider subjectively acted

“with an attitude of deliberate indifference to that serious

medical need.” Id.

Defendants do not dispute Plaintiff had an objectively

serious medical need. See Def. Motion at 17-18. Rather, Defendants

disavow any knowledge gentamicin toxicity testing had not been

done and assert their failure to ensure the testing was done was

an “oversight” amounting to negligence. Id. at 17-18. As such,

the parties dispute whether Defendants had actual, subjective

knowledge Plaintiff’s blood was not tested for gentamicin levels

before February 10, 2010, or whether their lack of knowledge or

their failure to order admittedly necessary testing constitutes

mere negligence or something more.

A deliberate indifference claim requires a plaintiff to show

the medical provider had subjective knowledge of a risk of serious

harm yet disregarded that risk by conduct that amounts to more

than mere negligence. Farrow, 320 F.3d at 1245.14 A plaintiff who

14 The Eleventh Circuit clarified its precedent requires a

showing of more than “mere,” as opposed to more than “gross”

negligence. See Melton v. Abston, 841 F.3d 1207, 1223 n.2 (11th

Cir. 2016) (citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th

Cir. 1999) (concluding “the ‘more than mere negligence’ standard

in McElligott is more consistent with Farmer than the ‘more than

gross negligence’ standard”)).

receives some medical treatment can demonstrate deliberate

indifference when the care is so deficient that it surpasses

traditional concepts of medical malpractice. McElligott, 182 F.3d

at 1255.

The Eleventh Circuit has recognized a failure to provide

proper medical care surpasses mere negligence when a plaintiff

receives “grossly inadequate care” or “care that is so cursory as

to amount to no treatment at all.” Melton, 841 F.3d at 1223. See

also Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th

Cir. 1985). Additionally, a physician’s failure to “provide even

that level of diagnostic care that [he himself] believed necessary”

suggests an Eighth Amendment violation. Ancata, 769 F.2d at 704.

“[T]he quality of [medical] care one receives can be so substantial

a deviation from accepted standards as to evidence deliberate

indifference to [] serious [medical] needs.” Steele v. Shah, 87

F.3d 1266, 1269 (11th Cir. 1996).

Defendants contend there is no evidence of their subjective

knowledge Plaintiff faced a risk of serious harm because they did

not know Plaintiff’s blood was not tested for gentamicin

concentration. Def. Motion at 17-18. Defendants’ argument

disregards that Plaintiff can satisfy his burden through reference

to circumstantial evidence:

Whether a [defendant] had the requisite

knowledge of a substantial risk is a question

of fact subject to demonstration in the usual

ways, including inference from circumstantial

evidence, and a factfinder may conclude that

a [defendant] knew of a substantial risk from

the very fact that the risk was obvious.

Farmer, 511 U.S. at 842 (internal citations omitted). See also

Melton, 841 F.3d at 1224 (“Since a finding of deliberate

indifference requires a finding of the defendant’s subjective

knowledge of the relevant risk, a genuine issue of material fact

exists ‘only if the record contains evidence, albeit

circumstantial, of such subjective awareness.’”).

Indeed, the Eleventh Circuit has recognized, “rarely if ever

will a defendant medical professional admit that he knew his course

of treatment was grossly inadequate.” Campbell v. Sikes, 169 F.3d

1353, 1371-72 (11th Cir. 1999). See also Steele, 87 F.3d at 1269

(reversing summary judgment in the defendant’s favor because the

jury could have concluded the defendant “knew of a substantial

risk from the very fact that the risk was obvious”); McElligott,

182 F.3d at 1256 n.3 (holding a jury reasonably could conclude

from the totality of the circumstances the defendant doctor knew

the plaintiff faced a serious risk of harm even though the doctor

maintained he was subjectively unaware of some of the plaintiff’s

complaints of pain).

A court may consider expert witness testimony as

circumstantial evidence of a defendant’s subjective mental intent.

Campbell, 169 F.3d at 1371. See also German v. Broward Cty.

Sheriff’s Office, 315 F. App’x 773, 777-78 (11th Cir. 2009)

(stating, as dicta, an expert may be warranted on remand “to

determine whether [the defendant] was deliberately indifferent to

[the plaintiff’s] serious medical need”). However, an expert’s

opinion alone will not suffice; there must be other circumstantial

evidence in the record to permit a factfinder to conclude a

defendant had actual knowledge of a risk of serious harm. Campbell,

169 F.3d at 1372.

Here, the expert testimony demonstrates there is a genuine

issue of material fact regarding whether Defendants knew Plaintiff

faced a risk of serious harm. Dr. Sharma concludes the medical

records show no evidence of “actions below the standard of care.”

Def. Ex. G at 4. However, Dr. Kern opines the records reflect

Defendants knew of a substantial risk associated with the

administration of gentamicin without associated testing yet

persisted in their course of treatment despite that knowledge.

Kern Report at 7-8.

Dr. Kern’s report is not the sole evidence of Defendants’

subjective intent, however. The evidence permits the conclusion

that Drs. Smith and Jorge knew Plaintiff’s blood was not tested

for gentamicin concentration despite their assertions to the

contrary. Drs. Smith and Jorge were primarily responsible for

Plaintiff’s care. Although Dr. Beiser met with and examined

Plaintiff, Drs. Smith and Jorge supervised Dr. Beiser and directed

Plaintiff’s treatment plan. Dr. Beiser avers, and Dr. Smith

concedes, Dr. Beiser had no authority to order tests or prescribe

medications. Beiser Aff. at ¶ 7; Smith Dep. at 13.

At his deposition, Dr. Jorge denied having had a supervisory

role over Dr. Beiser, saying Dr. Beiser was “mostly” under Dr.

Smith’s supervision. Jorge Dep. at 44. However, in his declaration,

Dr. Jorge acknowledges Dr. Beiser reported to him and to Dr. Smith.

Def. Ex. B ¶ 9. Moreover, both Dr. Smith’s and Dr. Jorge’s primary

responsibility for Plaintiff’s treatment is evidenced by their

signatures on the daily doctor’s progress notes and physician’s

order sheets. See generally Def. Ex. I; RMC Phys. Orders. Between

January 5, 2010, and February 18, 2010, forty-five progress notes

were made and all except seven are signed by Drs. Smith or Jorge.15

Def. Ex. I. Between January 4, 2010, and February 9, 2010, Dr.

Smith ordered the continuation of gentamicin on four occasions.

Dr. Jorge ordered the continuation of gentamicin one time, though

the progress notes and physician’s order sheets indicate Dr. Jorge

was involved with Plaintiff’s care on a regular basis between the

date of admission and the date of discharge. See RMC Phys. Orders

at 6, 8, 9, 10, 13; Def. Ex. I.

15 The remaining six entries are signed by one of two other

physicians, not including the admitting physician, Dr. Charles.

Def. Ex. I at 16, 20, 21, 22, 26, 27.

Given all the evidence, a reasonable factfinder could

conclude Dr. Smith and Dr. Jorge each had to know Plaintiff’s blood

was not tested for gentamicin toxicity from the very fact it was

obvious. Together, they directed the continuation of gentamicin

over a period of five weeks knowing the risks associated with its

use and the ways to avoid those risks, though neither of them

ordered that Plaintiff’s blood be tested for gentamicin. Moreover,

given Dr. Beiser had no authority to order tests and Drs. Smith

and Jorge were the licensed physicians with such authority, any

orders for blood tests had to have come from one of them.16 Cf.

Daniels, 753 F. App’x at 758 (holding the evidence did not support

an inference the defendant doctor knew the results of a blood test

because the undisputed evidence showed the nurses were charged

with the plaintiff’s care and had the authority to order tests and

prescribe medications).

Even accepting Defendants did not actually know gentamicin

levels were not being tested, their admitted ignorance of such a

fact permits the inference they did not take the steps necessary

to ensure their treatment plan was medically appropriate, such as

reviewing medical records and test results. Such a failure could

support the conclusion Defendants rendered “grossly inadequate

16 This is especially the case accepting as true Dr. Smith’s

account that he and Dr. Jorge were the only two doctors working at

RMC at the time.

care” or substantially deviated “from accepted standards as to

evidence deliberate indifference to [] serious [medical] needs.”

Steele, 87 F.3d at 1269-70 (holding the defendant physician was

not entitled to summary judgment despite a favorable expert witness

report where the plaintiff presented evidence that the physician

discontinued a medication after only a “cursory interview [with

the plaintiff] and without having reviewed any medical records”);

Greason v. Kemp, 891 F.2d 829, 835 (11th Cir. 1990) (holding a

trier of fact could find the defendant doctor provided grossly

inadequate care and knew he was doing so when the doctor abruptly

discontinued an inmate’s anti-psychotic medication without

reviewing the inmate’s file or conducting an examination).

Additionally, a factfinder reasonably could conclude the

circumstantial evidence belies Dr. Smith’s proffered explanation

for his admitted failure to recognize gentamicin levels were not

monitored (being over-worked and under-staffed). Dr. Smith

testified he and Dr. Jorge were the only two doctors at RMC at the

time but there should have been six. Smith Dep. at 48. However,

the medical records from RMC contain the signatures of at least

four doctors in addition to Drs. Smith and Jorge. Def. Ex. H at 1;

Def. Ex. I at 6-7, 16, 21. Moreover, Dr. Beiser avers he does not

recall any patient-care conversations with Dr. Smith or Dr. Jorge

being cut short because the doctors were too busy. Beiser Aff. ¶

7.

Given a reasonable factfinder could conclude, based on the

circumstantial evidence, that Defendants were deliberately

indifferent to a serious risk of harm, Defendants are not entitled

to summary judgment. Defendants’ assertions they did not know

Plaintiff’s blood was not being tested for gentamicin toxicity

until February 10, 2010, presents a factual dispute and a

credibility determination this Court may not make on summary

judgment. See Anderson, 477 U.S. at 249 (“[T]he judge’s function

is not . . . to weigh the evidence and determine the truth of the

matter.”).

For the same reason, neither is Plaintiff entitled to summary

judgment. On this record, construing the facts in the light most

favorable to Defendants, a factfinder reasonably could conclude

Defendants did not know Plaintiff’s blood was not being tested for

toxicity until February 10, 2010, and their lack of knowledge

amounts to mere negligence. The records show a medical provider

examined Plaintiff daily, and Defendants contend they did not

ignore any complaints brought to their attention by Plaintiff or

Dr. Beiser. See Def. Ex. A ¶ 16; Def. Ex. B ¶ 15; Def. Ex. I.

A jury reasonably could conclude the symptoms Plaintiff

complained of over the course of his treatment (hearing loss,

nausea and vomiting, and dizziness) did not alert Defendants to

gentamicin toxicity under the circumstances. As Plaintiff

acknowledges by affidavit (Doc. 156-2; Pl. Aff. #1), he presented

with hearing loss upon his admission to RMC. Def. Ex. I at 8; Pl.

Aff. #1 ¶ 1. As to Plaintiff’s complaints of nausea and vomiting,

according to Drs. Smith and Jorge, those are “nonspecific” symptoms

not necessarily attributable solely to gentamicin toxicity. See

Smith Dep. at 28; Jorge Dep. at 41. Finally, the records reflect

Plaintiff’s complaints were not persistent but occurred on a few,

sporadic occasions, and after steps were taken to address his

complaints, Plaintiff reported feeling better. See Def. Ex. I at

16-17, 22-23.

In short, whether Defendants’ self-proclaimed “oversight”

constitutes negligence or deliberate indifference is a question of

fact this Court may not resolve as a matter of law on summary

judgment. See Rogers v. Evans, 792 F.2d 1052, 1060 (11th Cir. 1986)

(“The issue is whether the questioned conduct is cruel and unusual

because it involves deliberate indifference, or something more

than a medical judgment call, an accident, or an inadvertent

failure.”) (quoting Murrell v. Bennett, 615 F.2d 306, 310 n.4 (5th

Cir. 1980)). As such, neither party is entitled to summary judgment

on Plaintiff’s claim of deliberate indifference.17

17 The parties also dispute whether Defendants obtained

Plaintiff’s informed consent to treat him with gentamicin. It is

undisputed Dr. Charles initially ordered gentamicin and was the

doctor on duty when Plaintiff was admitted. The patient

authorization form, dated January 3, 2010, is signed by Dr.

Charles. Def. Ex. C at 1. Plaintiff was “unable to sign” the form.

Id. Whether Plaintiff understood the risks associated with

gentamicin or whether he would have declined the treatment had he

B. Qualified Immunity

Defendants invoke qualified immunity, asserting they were

acting within the scope of their discretionary duties at the

relevant times and arguing Plaintiff fails to demonstrate the

violation of a constitutional right that was clearly established

at the time. Def. Motion at 18, 21-22. In response, Plaintiff

asserts Defendants were not acting within the scope of their

discretionary duties because their conduct was not the product of

medical judgment but a failure to adhere to protocols. Pl. Resp.

at 4-5. Plaintiff further asserts that deliberate indifference to

an inmate’s serious medical needs has long been recognized as a

constitutional violation. Id. at 5.

An official sued in his individual capacity “is entitled to

qualified immunity for his discretionary actions unless he

violated ‘clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Black v.

Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting Case v.

Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified immunity

allows government employees to exercise their official duties

known the risks are not issues this Court must resolve in ruling

on the parties’ motions for summary judgment. Rather, the Court

focuses on whether there is evidence that Defendants were

deliberately indifferent to Plaintiff’s condition over the weeks

during which they treated him with gentamicin regardless of whether

anyone explained the risks associated with gentamicin to

Plaintiff.

without fear of facing personal liability. Alcocer v. Mills, 906

F.3d 944, 951 (11th Cir. 2018). The doctrine protects all but the

plainly incompetent or those who knowingly violate an inmate’s

constitutional rights. Id.

Upon asserting a qualified immunity defense, a defendant

bears the initial burden to demonstrate he was acting within his

discretionary authority at the relevant times. Id. Defendants

assert, and the record demonstrates, they were acting within the

scope of their discretionary duties as physicians for the DOC at

the time they treated Plaintiff. Def. Motion at 22. See also Def.

Ex. A; Def. Ex. B; Def. Ex. I; Def. Ex. J; RMC Phys. Orders.

Plaintiff offers no evidence to dispute Defendants were

acting within the scope of their discretionary duties at the time.

Rather, Plaintiff argues Defendants were not acting within the

scope of their discretionary duties because they “abdicated clear-

cut, known professional duties” by their failure to test Plaintiff

for gentamicin toxicity. Pl. Resp. at 3. Plaintiff’s argument is

not convincing. Whether Defendants provided deficient medical care

in a manner that violated Plaintiff’s constitutional rights is a

separate question from whether Defendants acted within the scope

of their discretionary duties as physicians for the DOC. As such,

the Court finds Defendants carry their burden on qualified

immunity.

To overcome a qualified immunity defense, a plaintiff bears

the burden to demonstrate two elements: the defendant’s conduct

caused plaintiff to suffer a constitutional violation, and the

constitutional violation was “clearly established” at the time of

the alleged violation. Alcocer, 906 F.3d at 951. “Because § 1983

‘requires proof of an affirmative causal connection between the

official’s acts or omissions and the alleged constitutional

deprivation,’ each defendant is entitled to an independent

qualified-immunity analysis as it relates to his or her actions

and omissions.” Id. (quoting Zatler, 802 F.2d at 401).

As addressed at length above, Plaintiff alleges facts and

presents evidence that, accepted as true, demonstrate Dr. Smith

and Dr. Jorge, by their separate actions or omissions, were

deliberately indifferent to Plaintiff’s serious medical needs. Dr.

Smith knew at the time he treated Plaintiff that a patient with

renal insufficiency, which Plaintiff had, is more susceptible to

the risks associated with gentamicin and knew gentamicin levels

should be routinely monitored. Smith Dep. at 11-12, 33. Yet Dr.

Smith ordered the drug four times without ordering the routine

gentamicin concentration tests. See RMC Phys. Orders at 8-10, 13.

Similarly, Dr. Jorge knew the risks associated with

gentamicin, was familiar with the symptoms of possible gentamicin

toxicity, and knew that blood tests were indicated to monitor

gentamicin levels in a patient’s bloodstream. Jorge Dep. at 18,

45. Dr. Jorge was involved in Plaintiff’s care for five weeks,

ordering tests and medications, including gentamicin, and he

admittedly did not order tests to monitor the gentamicin levels in

Plaintiff’s blood. See RMC Phys. Orders at 6-9, 11, 14-16.

Unlike Dr. Smith, Dr. Jorge denies having known a person with

renal insufficiency is more susceptible to the side effects of

gentamicin or that gentamicin monitoring should occur with any

particular frequency. Id. at 15. However, a factfinder reasonably

could conclude Dr. Jorge’s testimony lacks credibility given Dr.

Jorge was a “senior physician,” and two court-appointed experts,

Dr. Smith, and Dr. Beiser all recognize renal insufficiency places

a patient at an increased risk of harm during the administration

of gentamicin and routine blood tests are indicated.

Alternatively, a factfinder could conclude Dr. Jorge’s claimed

lack of familiarity with this particular risk factor or the

frequency with which a patient’s blood should be tested, both of

which are included in the FDA warning, suggests he rendered grossly

inadequate medical care.

The clearly established law in the Eleventh Circuit at the

time served to put Defendants on notice that a physician’s

treatment of an inmate can fall so far below the acceptable

standard of care that it may constitute deliberate indifference.

See, e.g., Campbell, 169 F.3d at 1370 (stating a plaintiff may

establish a deliberate indifference claim if the direct or

circumstantial evidence demonstrates the physician actually drew

the inference that his “course of treatment presented a substantial

risk of serious harm . . . but persisted in the course of treatment

anyway”); McElligott, 182 F.3d at 1255 (noting that the Supreme

Court in Farmer clarified a plaintiff does not have to demonstrate

an intent to cause him harm; “it is enough the official acted or

failed to act despite his knowledge of a substantial risk of

serious harm”) (citing cases as examples of circumstances under

which the Eleventh Circuit has held medical care was so inadequate

as to constitute deliberate indifference). See also Rogers, 792

F.2d at 1058 (“Medical treatment that is so grossly incompetent,

inadequate, or excessive as to shock the conscience or to be

intolerable to fundamental fairness violates the eighth

amendment.”).

At the time Defendants treated Plaintiff, the Eleventh

Circuit had recognized a plaintiff may demonstrate a genuine issue

of material fact in a deliberate indifference claim with respect

to the manner in which prison doctors prescribe or administer

medications. Steele, 87 F.3d at 1270 (holding the plaintiff

demonstrated a genuine issue of material fact as to deliberate

indifference where the physician discontinued a medication after

only a “cursory interview [with the plaintiff] and without having

reviewed any medical records”); Greason, 891 F.2d at 835 (holding

the manner in which a prison doctor withdraws a medication can

amount to deliberate indifference depending on the circumstances).

For these reasons, Defendants are not entitled to qualified

immunity on summary judgment, and their motion is due to be denied.

C. Plaintiff’s Injuries

Defendants assert Plaintiff fails to demonstrate a physical

injury attributable to Defendants’ conduct, barring him from

receiving compensatory or punitive damages under 42 U.S.C. §

1997e(e). Def. Motion at 20. In response, Plaintiff references the

court-appointed experts’ opinions and the medical records, which

he claims demonstrate otherwise. Pl. Resp. at 2.

Defendants recognize gentamicin toxicity can cause kidney and

ear damage, Smith Dep. at 9-10; Jorge Dep. at 17; Smith Interrog.

¶ 2; Jorge Interrog. ¶ 1, which are some of the injuries Plaintiff

alleges he suffered as a result of Defendants’ treatment, Am.

Compl. at 23. Defendants argue, however, the injuries Plaintiff

attributes to Defendants’ conduct are pre-existing or are not

causally related to gentamicin toxicity. Def. Motion at 20.

Defendants provide no explanation or analysis to support their

general conclusions. Instead, they rely upon Dr. Sharma’s report,

in which Dr. Sharma simply concludes by reference to a few medical

records that the injuries Plaintiff associates with Defendants’

treatment were not caused by gentamicin or are those Plaintiff

complained of as far back as 2001. Def. Ex. G at 3-4.

Defendants provide some of the medical records Dr. Sharma

references in his report. On April 14, 2000, Plaintiff complained

of hearing problems that persisted even after the wax was flushed

from his ears. Def. Ex. E at 1. He also informed the medical

provider that a doctor previously told him he “had a bad liver”

because he was a drinker for twelve years. Id. However, the nurse

noted, “no hx [history] of kidney problems.” Id. In 2001, Plaintiff

complained of “unsteady gait” and having “frequent falls,” though

he attributed those problems to weak joints and arthritis. Id. at

4, 5. He also reported his knees and ankles “giv[ing] out” on long

walks, and he reported using a cane since before his incarceration.

Id. at 4. The nurse referred him to a clinician for evaluation,

noting Plaintiff had “joint pain.” Id.

In an affidavit (Doc. 156-2; Pl. Aff. #2), Plaintiff concedes

he had hearing problems prior to being treated with gentamicin.

Pl. Aff. #2 ¶ 1. However, Plaintiff explains his past hearing

issues were the result of wax build-up. Id. ¶¶ 1, 2. He avers “each

time [he] experience[d] [hearing loss] prior to [his admission to

RMC], . . . the medical staff . . . cleared out the excessive wax

. . . [and] [he] could hear normally.” Id. ¶ 1. Plaintiff explains

that upon his admission to RMC, on January 4, 2010, a hearing

specialist flushed the wax from his ears with the same positive

results previously experienced. Id. ¶ 2.

According to Plaintiff, “[a]fter 19 days of hearing

normal[ly],” on January 23, 2010, he reported to a nurse that he

was having problems. Id. ¶ 3. He told the nurse the hearing

problems were “similar” to those he expressed when he was admitted,

“except for the fact that [he] had never before experienced the

deafness happening so soon after the excessive wax was removed.”

Id. Plaintiff says he complained to nurses or doctors on January

27th, 29th, and 30th. Id. ¶¶ 4-6. He contends “no one would take

more than a minute to listen,” and he became frustrated with his

attempts to report the problem. Id. ¶ 6.

The Court finds Defendants fail to carry their burden on

summary judgment. Defendants provide some evidence Plaintiff

previously complained of hearing problems and an unsteady gait,

Def. Ex. E at 1, 4, 5, though there is no evidence demonstrating

whether the problems Plaintiff attributes to gentamicin are the

same in nature or severity as those he reported nearly ten years

before. As Plaintiff points out, Pl. Resp. at 2, Dr. Bartels

suggests there may be a causal connection between Plaintiff’s

current hearing loss and gentamicin toxicity, even though

Plaintiff previously complained of hearing loss, Bartels Report at

3. Dr. Bartels concludes, “more likely than not, [Plaintiff’s]

hearing worsened because of the gentamicin toxicity.” Id. Dr.

Bartels also attributes Plaintiff’s loss of balance to gentamicin

toxicity. Id. Significantly, Dr. Bartels indicates he is unable to

conclude with certainty whether gentamicin worsened Plaintiff’s

hearing without conducting studies and examining Plaintiff, which

he has not done.18 Id.

Dr. Smith himself concedes Plaintiff’s kidneys “did get

worse” between January 4, 2010, and February 19, 2010, and

Plaintiff was in “chronic kidney failure” on February 19, 2010.

Smith Dep. at 19. As such, the Court finds there remain genuine

issues of material fact regarding whether Plaintiff sustained

injuries that were caused or exacerbated by gentamicin toxicity.

IX. Plaintiff’s Motion for Discovery from Non-Party

Plaintiff seeks an order directing the DOC to respond to his

subpoena requests without cost. Disc. Motion at 1.19 Defendants

oppose Plaintiff’s request. See Disc. Motion Resp. According to

Plaintiff, the DOC agreed to provide the responsive documents for

the estimated production cost of almost $2,500.00. Disc. Motion at

1; see also Doc. 146-2. Plaintiff’s attorney represents that should

18 The Court previously granted Plaintiff’s motion to move to

reopen the discovery period after the Court’s ruling on the

dispositive motions, “for the limited purpose of deposing the

medical experts” and to seek leave for Dr. Bartels to examine

Plaintiff. See Order (Doc. 145).

19 To meet the deadline for filing discovery motions,

Plaintiff filed this motion before filing his Motion for Summary

Judgment. See Disc. Motion at 1 n.1. However, Plaintiff clarifies

the documents he seeks are not necessary for the Court’s

consideration of the parties’ summary judgment motions. Id.

Plaintiff states he will need the requested documents to prepare

for trial. Id.

the case survive summary judgment, he will revisit discussions

with DOC representatives and opposing counsel to resolve the

dispute without the need for Court intervention. Disc. Motion at

2.

Given Plaintiff’s representation that he will make additional

attempts to resolve this issue himself, the Court will deny

Plaintiff’s motion without prejudice to his right to renew the

motion should he be unable to reach a satisfactory resolution.

X. Conclusion

In light of the Court’s ruling on the parties’ summary

judgment motions, the Court finds the parties may benefit from

renewed settlement negotiations. As such, the Court will direct

the parties to confer and file a joint notice advising whether

there is a possibility of settlement or whether this case should

be set for trial. If the parties are amenable to settlement

negotiations, the Court will refer the case to the assigned

Magistrate Judge for a settlement conference. If the parties are

not amendable to settlement negotiations, they shall provide a

joint schedule with proposed deadlines for the completion of this

case with a goal of trying the case by March 2020. The parties

shall make every effort to resolve this case, which has been

pending since 2013, without undue delay.

Therefore, it is now

ORDERED :

1. Plaintiff’s Motion for Discovery from Non-Party (Doc.

146) is DENIED without prejudice.

2. Plaintiff’s Motion for Summary Judgment (Doc. 148) is

DENIED.

3. Defendants’ Motion for Summary Judgment (Doc. 153) is

DENIED.

4, By November 4, 2019, the parties shall confer and file

a joint notice advising whether they there is a possibility of

settlement or whether this case should be set for trial. If the

parties are not amendable to settlement negotiations, they shall

provide a joint schedule with proposed deadlines for the completion

of this case, which the Court would like to try no later than March

2020.

DONE AND ORDERED at Jacksonville, Florida, this 22nd day of

October, 2019.

Dow

BRIAN J. DAVIS

United States District Judge

Jax-6

Cc:

Counsel of Record

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