The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ROGER DAVID ALCOTT,
Plaintiff,
v. Case No. 3:21-cv-308-TJC-MCR
CORIZON, LLC, et al.,
Defendants.
ORDER
I. Status
Plaintiff is proceeding on a Second Amended Complaint (Doc. 85) against
Corizon,1 Dr. Benjamin Hasty, and Advanced Eye Care.2 At the time the Second
Amended Complaint was filed, Plaintiff was represented by counsel. He is now
proceeding pro se.
Before the Court is Defendants Dr. Benjamin Hasty and Advanced Eye
Care of Bay County’s Motion for Final Summary Judgment (Doc. 148; Motion)
with exhibits (Docs. 147, 149). Plaintiff filed a Response (Doc. 152; Response),
1 This case is currently stayed as to the claims against Corizon due to Corizon’s
suggestion of bankruptcy. See Order (Doc. 110).
2 Plaintiff also sued Centurion, but Plaintiff and Centurion resolved those claims
through settlement. See Order (Doc. 144).
and Defendants filed a Reply (Doc. 153; Reply). With the Court’s leave, Plaintiff
filed a Sur-Reply (Doc. 157; Sur-Reply). The Motion is ripe for review.
II. Plaintiff’s Second Amended Complaint3
According to Plaintiff, he was incarcerated in the Florida Department of
Corrections (FDC) from April 1, 2014, to November 27, 2019. Doc. 85 at 2. On
March 31, 2015, he “was diagnosed with cataracts in each eye,” and on May 16,
2017, a medical notice indicates that “cataract surgery was recommended ‘as
soon as possible.’” Id. at 6. Plaintiff asserts that “it is well-known that cataracts
develop faster in younger patients (less than 60-years old) and in patients that
may have certain medical condition[s] such as HIV. A 38-year-old patient, like
[Plaintiff] with an HIV diagnosis, should have had follow up visits at least every
six (6) months after the initial diagnosis.” Id. at 6-7. On January 12, 2018,
Plaintiff had a consultation with Dr. Hasty. Id. at 8. Dr. Hasty recommended
that Plaintiff undergo complex cataract surgery on his left eye to be followed by
surgery on his right eye 1-2 months later. Id. at 9. He further noted the high
risk of retinal detachment after surgery. Id. at 8-9.
On April 18, 2018, Dr. Hasty performed surgery on Plaintiff’s left eye. Id.
at 9. The next day, during a scheduled follow-up appointment, Plaintiff was not
3 Because this case is before the Court on Defendants Dr. Hasty and Advanced Eye
Care’s Motion, the Court focuses its summary of Plaintiff’s allegations on these
Defendants only.
experiencing any complications. Id. On May 16, 2018, Dr. Hasty performed
surgery on Plaintiff’s right eye. Id. Plaintiff contends that “[n]ursing records
from May 24, 2018 indicate that on May 18, 2018, [Plaintiff] noted blacklines
and decreased left eye vision,” and that on the following day, Plaintiff advised
that “‘he could not see out of the left eye at all.’” Id. On May 24, 2018, “Dr. Hasty
was called . . . when [Plaintiff] could not see out of his left eye . . . and was seeing
floaters out of his right eye.” Id. Without examining Plaintiff, Dr. Hasty
“prescribed drops instead of performing a prompt ophthalmic evaluation.” Id. at
10. On May 29, 2018, Plaintiff “was next seen for a pre-scheduled post-operative
clinical follow up” with Dr. Roberts. Id. Dr. Roberts immediately transferred
Plaintiff to First Coast Retina Center “in a final effort to save [his] vision.” Id.
However, the delays in Plaintiff receiving care ultimately resulted in him going
blind. Id.
Based on the above allegations, Plaintiff raises the following claims
against Defendants Hasty and Advanced Eye Care: (1) “medical negligence”4
4 Plaintiff’s claims stem from the rendering of and/or the failure to render medical
services and rely on the application of medical skill and judgment in deciding how to
best handle Plaintiff’s medical care relating to his eyesight. Thus, the claims are
medical malpractice claims under Florida law rather than ordinary negligence claims.
See Vance v. Okaloosa-Walton Urology, P.A., 228 So. 3d 1199, 1200 (Fla. 1st DCA
2017) (“When evaluating whether a complaint sounds in ordinary or medical
negligence, courts must determine from the allegations whether the claim arises out
of the rendering of, or the failure to render, medical care or services. The core inquiry
is whether the claim relies on the application of the medical malpractice standard of
care.” (internal quotations and citations omitted)); see also Whittaker v. Sanchez, No.
19-13486, 2021 WL 4495808, at *3 (11th Cir. Oct. 1, 2021) (“The plaintiff’s labels are
leading to loss of sight in Plaintiff’s left and right eyes against Dr. Hasty (Count
X (left eye); Count XI (right eye)); and (2) vicarious liability against Advanced
Eye Care (Count XII).5 As relief, Plaintiff seeks compensatory damages and all
other just and proper relief.
III. Standard of Review
“A district court must 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.’” Atheists of Fla., Inc. v. City of Lakeland, 713
F.3d 577, 589 (11th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). In making this
assessment, the court “view[s] all facts and reasonable inferences drawn
therefrom in the light most favorable to [] the non-moving party.” Id. (cleaned
up). Conclusory allegations are insufficient to create a triable issue of fact.
Carter v. City of Melbourne, 731 F.3d 1161, 1167 (11th Cir. 2013) (citation
omitted). “Issues of fact are ‘genuine’ only if a reasonable jury, considering the
not dispositive as to whether a claim sounds in medical malpractice; the district court
must decide if the allegations in the complaint rely on the application of the medical
malpractice standard of care.”); Parker v. United States, No. 5:22-cv-679-WFJ-PRL,
2024 WL 4008113, at *3 (M.D. Fla. Aug. 30, 2024) (“Florida Statutes define a medical
malpractice claim as a claim, arising out of the rendering of, or the failure to render,
medical care or services. An action constitutes medical care or services when it
require[s] the use of professional judgment or skill.” (internal quotations and citations
omitted)).
5 The Court previously granted Defendant Hasty’s request to dismiss Plaintiff’s Eighth
Amendment deliberate indifference claim against him (Count XIII). See Order (Doc.
119).
evidence presented, could find for the nonmoving party.” Atheists of Fla., 713
F.3d at 589 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
IV. Record Evidence
On January 12, 2018, Dr. Hasty examined Plaintiff and recommended
that he undergo complex cataract surgery on his left eye “soon,” to be followed
by cataract surgery on his right eye 1-2 months later. Doc. 147-1 at 212; see
Doc. 147-2 at 1. On April 18, 2018, Dr. Hasty performed complex cataract
surgery on Plaintiff’s left eye. Doc. 147-2 at 7; Doc. 147-3 at 12. Dr. Hasty noted
that Plaintiff’s case was “complicated . . . mainly because of the density of the
lens requiring Trypan Blue.” Doc. 147-3 at 12. He further indicated that
Plaintiff was at high risk of retinal detachment. Doc. 147-2 at 7. The next day,
Dr. Hasty saw Plaintiff for a follow-up appointment, and noted that Plaintiff
was “doing OK” and he recommended that Plaintiff use the standard GTTs
(drops) and follow-up with Dr. Roberts in one week. Doc. 152-1 at 1; see Doc.
147-2 at 7. Dr. Hasty further recommended that Plaintiff undergo cataract
surgery on the right eye in 1-2 months. Doc. 152-1 at 1.
On May 16, 2018, Dr. Hasty performed complex cataract surgery on
Plaintiff’s right eye. Doc. 147-3 at 1. Dr. Hasty noted: “Patient went to the
recovery room free of complications, but is at high risk for retinal detachment
because of the very long, 29 mm axial length in both eyes.” Id.; see Doc. 147-2
at 14 (Dr. Hasty’s post-operative notes indicating Plaintiff was at high risk for
retinal detachment). The next day, May 17, 2018, Dr. Hasty saw Plaintiff for a
follow-up appointment. Doc. 147-2 at 14. He recommended that Plaintiff use the
eye drops as ordered and see Dr. Roberts in the optometry clinic in one week.
Doc. 157-2 at 2-3.
On May 21, 2018, Plaintiff authored a sick-call request, that was received
and marked as “Routine” on May 22, 2018. Doc. 147-4 at 1. Plaintiff stated that
his eyes were hurting, he just had surgery and he was seeing traces going back
and forth, and his vision was blurry. Id. He also complained about corns on his
feet and asked for them to be removed. Id. On May 24, 2018, Plaintiff was
examined by a nurse. Doc. 147-2 at 15. The nurse wrote that Plaintiff reported
“seeing black lines and blurry vision in [his] left eye” beginning on May 18, 2018,
and by the next day, he “could not see out of [his] left eye at all.” Id. The nurse
further wrote that Plaintiff reported seeing well out of his left eye prior to the
surgery on his right eye on May 16, 2018, and that he had clear vision in his
right eye since the surgery on May 16, 2018. Id. The nurse immediately referred
Plaintiff to urgent care. Id.
Later that same day, Dr. Dure examined Plaintiff. Id. at 16. Dr. Dure’s
notes reflect that the “[c]ase was discussed with Dr. Hasty regarding patient
left eye visual disturbances.” Id. According to Dr. Dure, Dr. Hasty recommended
two types of eye drops until Plaintiff was seen by an optometrist. Id. Dr. Dure
noted that Plaintiff was scheduled to be seen on May 29, 2018. Id. He assessed
Plaintiff with “left eye visual disturbances” and noted that the “case was also
discussed with Dr. Bassa,” the Chief Health Officer at the Reception and
Medical Center (RMC). Id.
Plaintiff was seen by Dr. Roberts on May 29, 2018, who recommended an
emergent referral to Dr. Rappaport. Id. Dr. Roberts diagnosed Plaintiff with left
eye retinal detachment. Doc. 157-2 at 8-9. Dr. Bassa indicated on May 29, 2018,
that Plaintiff had “left eye retinal detachment” and he was referred emergently
to a retinal specialist. Doc. 147-2 at 17.
Dr. Hasty submitted a Declaration (Doc. 147-1) summarizing his care and
treatment of Plaintiff. In relevant part, he avers:
At all times material, I was engaged as a
consulting ophthalmologist for National Eye Care, the
entity contracted by Centurion of Florida, LLC to
provide eye care and surgery to the inmates housed
within the [FDC].
I entered into a contract with National Eye Care,
which expressly referenced Centurion’s contract with
National Eye Care, which expressly referenced
Centurion’s contract with the [FDC].[6] Pursuant to
these agreements, I worked as a subcontractor to
Centurion, providing specialty and surgical treatment
to inmate-patients for the [FDC]. At all times
material, I was acting within the scope of, and
pursuant to, guidelines established by FDC rule
and/or these contracts.
To perform the contracted medical services, I
traveled to the [FDC RMC], which is located
6 The contracts are attached to Dr. Hasty’s Declaration. See Doc. 147-1 at 8-210.
approximately 250 miles from where I reside. I went
to RMC two days each month. One day per month I
performed surgeries. On the following day, I held
clinic. During my clinic day at RMC, I conducted the
day-one postoperative follow-up evaluation for the
inmate-patients on whom I had performed surgery the
previous day and medical evaluations to other
inmates.
At all times material, National Eye Care and
Centurion retained numerous full-time optometrists
who worked in the various [FDC] prison facilities to
provide eye care to the inmates. Optometrists are
trained to perform postoperative patient eye care and
management. After I performed surgery and
conducted the day-one postoperative evaluation, the
prison optometrists performed all of the remaining
postoperative follow-up care, either at RMC or at the
facility where the inmate was housed. I was never
involved in any postoperative care after the day-one
postoperative evaluation (and it was not my
responsibility to be involved) unless one of the treating
optometrists recommended that the patient be sent
back to me for further consultation and the facility
placed the patient back on my list of patients to be seen
during the two days I was at RMC each month. There
are many inmate-patients that I never saw again after
their day-one postoperative evaluation.
I was only retained to perform surgical
interventions and specialty consultations for
Centurion as referred by the prison optometrists. I
relied on the prison optometrists to conduct all
necessary postoperative examinations and to provide
reasonable postoperative care. It is well within the
standard of care and industry practice for optometrists
to provide postoperative care after an ophthalmologist
performs surgery on a patient and conducts the day
one (1) post op evaluation.
After the day-one postoperative evaluation, I did
not have access to the patient’s chart (the chart is
paper and accompanies the inmate back to his housing
facility). I did not have the ability to arrange for a
patient to be transferred by FDC to be seen by myself
or any other specialist. While I sometimes completed
forms recommending that an inmate-patient be seen
by a specialist or return to me for follow-up, it was
always subject to Centurion and/or FDC’s approval,
scheduling and arrangement for transport.
I communicated with the prison optometrists
through my notes, and left instructions for
postoperative follow-up. My notes were contained on
the same medical form that the prison optometrists
used to chart their postoperative follow-up care. It was
my understanding and expectation that prison
optometry staff reviewed and followed my
instructions.
For my two days each month at RMC, my
surgical and clinic schedules were provided by
Centurion staff to me a few days beforehand. They
determined which inmate-patients I would see at RMC
on which date. I had no involvement in arranging
patient transfer between facilities or to outside
providers.
Mr. Alcott was referred to me by prison
optometry staff for a consultation and cataract
surgery. I first saw Mr. Alcott on January 12, 2018.
Based on my review of the chart and interaction with
the inmate-patient, it was clear that Mr. Alcott had
severe cataracts that had worsened since 2015 and
which were significantly impacting his vision. At this
visit, even with his glasses he could only count fingers.
I noted that he had a history [of] amblyopia (lazy eye),
as well as HIV and schizophrenia. After a thorough
examination, I diagnosed him with dense cataracts in
both eyes (worse in the left eye) and high axial myopia
(extreme nearsightedness) with high retinal
detachment risk. My plan was to perform complex
cataract surgery on his left eye, with cataract surgery
on the right eye 1-2 months later.
I performed complex cataract surgery on Mr.
Alcott’s left eye on April 18, 2018. The surgery went
well but was complicated by the density and bulkiness
of the cataract as well as his very long axial length. I
conducted a post-surgical follow-up exam on April 19,
2018. At that time, Mr. Alcott was doing well. I
prescribed standard GTTs (drops) and ordered that he
be rechecked in 1 week with Dr. Roberts, the prison
optometrist assigned to his post-surgical follow-up
care.
I performed complex cataract surgery on the
right eye on May 16, 2018. The surgery was free of
complications, but I still noted that he was at high risk
for retinal detachment because of the very long 29mm
axial length in both eyes. I followed up with Mr. Alcott
on May 17, 2018, and again ordered standard GTTs
and follow up in the optometry clinic in 1 week. At this
time, the right eye looked fine and the patient did not
voice any complaints to me about the left or right eye.
At this point, I turned the patient’s care over to the
prison optometry staff.
I have subsequently learned that on May 21,
2018, Mr. Alcott submitted a sick call request about
eye pain, and that he was seen by a prison physician
on May 24, 2018, who is alleged to have called me
about the patient. I have no recollection of a call with
a prison physician on this date.
I had no further involvement in Mr. Alcott’s
medical care.
Doc. 147-1 at 2-6 (internal record citations and paragraph enumeration
omitted).
Defendants also submitted the Report of Expert Witness, John A. Beneke,
M.D., a board-certified ophthalmologist. Doc. 147-6. Dr. Beneke reviewed
Plaintiff’s medical records, the FDC’s Health Services Bulletin 15.03.13, and
the pre-suit affidavits from Chris Channon, MD, FACS and Sharon Aronovitch,
Ph.D., RN, CWOCN. Id. at 2. Dr. Beneke avers in pertinent part as follows:
Based on my review of the records, as well as my
professional education, my experience, and training I
am of the opinion that the Centurion healthcare
providers, acted within the standard of care owed to
Roger Alcott as summarized in the sequence of events
and generalized facts as set forth below.
On January 12, 2018, Mr. Alcott had his first
ophthalmology consult with Dr. Ben Hasty, M.D. Dr.
Hasty recommended cataract surgery and noted that
there was a high risk of retinal detachment after
surgery. Dr. Hasty planned the left eye complex
cataract surgery to be followed by the right eye
cataract surgery one to two months later. Mr. Alcott
had a history of decreased visual acuity in the right
eye for the prior two years, which was getting
progressively worse. The diagnosis included a dense
cataract left eye greater than right eye and high axial
myopia with retinal detachment risk. The plan was to
perform left eye cataract surgery soon and follow with
the right eye surgery one to two months thereafter.
In fact, the surgery to the left eye was completed
on April 18, 2018. The cataract surgery was successful,
and Mr. Alcott showed markedly improved vision on
his first postoperative visit which was on April 19,
2018.
Accordingly, the right eye surgery was then
completed on May 16, 2018. The right eye surgery
likewise appeared to be successful, and Mr. Alcott
showed improved vision in the right eye on his post-
operative visit on the following day.
Unfortunately, two days after the surgery to the
right eye, Mr. Alcott started having symptoms in his
left eye. When Mr. Alcott reported his symptoms to the
nurse in urgent care following his sick call request, the
nurse recognized Mr. Alcott’s symptoms and Dr. Hasty
was consulted. Dr. Hasty ordered Mr. Alcott to be
placed on an anti-inflammatory regimen consisting of
steroid drops and non-steroid drops and he was to be
worked in and evaluated by the optometrist[,] Dr.
Roberts, on her next visit which was on the 29th.
Dr. Roberts examined Mr. Alcott on May 29,
2018, and immediately referred Mr. Alcott to Dr.
Rappaport, the retinal specialist in Jacksonville, who
examined him that very day.
On May 29, 2018, Dr. Rappaport diagnosed Mr.
Alcott with a serous retinal detachment in his left eye
and treated him with a sub-tenon’s injection, along
with a regimen of topical steroid drops. No discernable
tears or rhegmatogenous detachment was noted.[7]
Mr. Alcott followed up with Dr. Rappaport on
June 5, 2018, and Mr. Alcott was not getting any better
at that time, so Dr. Rappaport gave him another sub-
tenon’s injection, increased his topical steroid use and
added oral steroids. Mr. Alcott was to follow-up in two
weeks.
On June 21, 2018, Dr. Rappaport saw Mr. Alcott
again and noted that his condition was not improving
and that he was not responding to his treatment
regimen. Hence, Dr. Rappaport requested a second
opinion at a training ophthalmology center at Shands
Hospital in Gainesville. Mr. Alcott was then sent to the
University of Florida at Shands Medical Center in
7 Defendants submitted Dr. Rappaport’s treatment notes. See Doc. 147-5.
Gainesville. During this time, the vision in Mr. Alcott’s
right eye deteriorated as well. Mr. Alcott received
further treatment at Shands for both his left and right
eyes, including sub-tenon’s injections and topical
medications with no improvement
At the University of Florida Medical Center at
Shands Hospital, Mr. Alcott underwent a vitrectomy
on August 13, 2018, to his right eye. Unfortunately, on
his postoperative visit on August 30, 2018, he was
noted to have a retinal detachment to his right eye. He
underwent subsequent retina surgery on October 10,
2018, which did not result in any improvement in his
vision.
In my opinion, Mr. Alcott was provided
appropriate care, but he suffered complications due to
his high myopia and possibly due to his long-standing
HIV status.
Based on my review as well as my education[,]
training, and experience, I conclude with a reasonable
degree of medical certainty that the Standard of Care
was met and that no act or omission on the part of the
Centurion health care providers, caused Roger Alcott’s
injuries.
Id. at 3-6.
Finally, Plaintiff submitted the Affidavit of Chris Channon, MD, FACS,
who Plaintiff consulted during his pre-suit investigation. See Doc. 152-1 at 10-
11. Dr. Channon has “been actively engaged in the practice of ophthalmology
within the five-year period immediately prior to the incident giving rise to this
claim” and he is “familiar with the standard of care as it pertains to the
management in situations such as those that unfolded in this case.” Id. at 10.
Dr. Channon “reviewed the medical records for [Plaintiff] as provided by the
[FDC],” and based upon review of those records, he opines:
[W]ithin a reasonable degree of medical probability,
reasonable grounds exist to initiate a medical
negligence claim against Benjamin Hasty, MD. . . .
This is based on the [FDC] Chronological Record of
Health Care dated 5/24/2018. The history recorded
states that on 05/18/2018 the inmate saw blacklines in
[sic] decreased vision in the left eye. On 05/19/2018 the
inmate reported “could not see out of the left eye at
all[.]” The nurse clearly identified that the loss of
vision represented a medical emergency and initiated
a prompt medical evaluation with Dr. Dure.
Consultation with Dr. Hasty was made. Dr. Hasty,
without the benefit of examination, and knowing the
high risk of retinal detachment in this patient,
prescribed drops instead of prompt ophthalmic
evaluation. More likely than not, prompt examination
would have revealed the nature of the condition.
Instead, clinic follow up 05/29/2018 (five days later,
with Dr. Roberts, OD) was arranged. This failure to
examine the inmate delayed accurate diagnosis of the
cause of loss of vision and resulted in further delay in
initiating referral to the appropriate ophthalmologist
for treatment. This more likely than not diminished
the chances of sight restoration in the inmate’s left
eye.
Doc. 152-1 at 10-11 (emphasis added).
V. Analysis8
According to Defendants, Plaintiff fails to establish a medical malpractice
claim because he “has not produced any competent evidence establishing that
8 To the extent Defendants claim sovereign immunity, the record is not dispositive on
this issue. Because the Court finds that Defendants are entitled to summary judgment
any alleged breach caused his injuries.” Motion at 16. They argue that while
“Plaintiff makes the conclusory assertion that Dr. Hasty was aware of his
condition as of May 24, 2018,” Plaintiff fails to produce “any record evidence
establishing what information was told to Dr. Hasty about [Plaintiff’s] condition
on this date.” Id. Because there is no evidence to establish what information
was told to Dr. Hasty, according to Defendants, “Plaintiff, and any expert
retained by Plaintiff, can only make unsubstantiated assumptions about the
sufficiency of Dr. Hasty’s purported response.” Id. Additionally, Defendants
contend that because Dr. Hasty was only at RMC on two days each month,
“there is no record evidence establishing how or when Dr. Hasty could or should
have arranged for ‘prompt ophthalmic evaluation.’” Id. at 17. Indeed, Dr. Hasty
contends that the only action he could have taken was to “make a
recommendation, subject to the approval of Centurion and/or FDC.” Id.
Defendants also note that when Plaintiff was evaluated on May 29, 2018, the
clinicians “essentially continued the existing course of treatment (steroidal
drops) with follow-up a week later.” Id.
Defendants further argue that “Plaintiff cannot prove the essential
element of causation.” Id. According to Defendants, “Plaintiff’s theory of
causation is that the purported delay in referral to ophthalmology between May
based on their substantive arguments, the Court declines to address in detail
Defendants’ sovereign immunity argument.
24 and May 29 delayed his diagnosis and decreased the chance of sight
restoration in both the left and right eyes by an unknown degree.” Id. at 19.
Defendants acknowledge that “Plaintiff has only asserted a possibility of causal
connection, not a probability that the breach proximately caused the injury at
issue—permanent loss of vision in both eyes.” Id. As to Plaintiff’s left eye,
Defendants contend that “there is no evidence in the record from which a
reasonable juror could conclude that Dr. Hasty’s negligence was the but-for
cause of injury.” Id. at 20; see Reply at 4. And as to the right eye, Defendants
assert that “Plaintiff did not lose vision in the right eye until weeks later, when
he was being followed by vitreoretinal specialists;” and “[t]here is no competent
evidence explaining how the purported delay caused a decreased chance of sight
restoration in the right eye, which was not an issue on May 24, 2018.” Motion
at 20.
Plaintiff contends that Dr. Hasty “breached the standard of care by
abrogating his responsibility as the surgeon to oversee [his] post-operative
care,” “by failing to perform an examination of [his] left eye at [his] post-
operative visit on May 17, 2018,” and “by failing to review [his] medical records
before recommending any treatment options on May 24, 2018.” Response at 7.
Plaintiff further argues that Dr. Hasty breached the standard of care by “failing
to order an immediate eye examination on May 24, 2018.” Sur-Reply at 9.
Plaintiff contends that when Dr. Hasty conducted his follow-up on May 17,
2018, the day after the surgery on his right eye, Dr. Hasty should have
examined his left eye as well, because Dr. Hasty knew of the severe
complications of which Plaintiff was at risk and Plaintiff told Dr. Hasty about
the issues he was experiencing with his left eye.9 Response at 7; see Sur-Reply
at 3-4. Plaintiff argues that “[i]t is unfathomable how an experienced
ophthalmologist would not have ordered an immediate examination of
[Plaintiff’s] eyes when complications developed with both eyes in the eight days
after surgery – especially when [Dr. Hasty’s] original order was for an eye
professional to examine [Plaintiff] one week after the May 17, 2018 surgery.”
Sur-Reply at 5-6. Plaintiff concludes that “[p]roper post-operative care by Dr.
Hasty would have likely saved [his] sight in both eyes.” Id. at 8. To support his
position, Plaintiff includes some of his medical records, the Affidavit of Dr.
Channon, and an article regarding “An Ophthalmologist’s Duties Concerning
Postoperative Care” from the American Academy of Ophthalmology.10 See Docs.
152-1, 157-1, 157-2.
9 Throughout his unverified Response and Sur-Reply, Plaintiff indicates that he told
Dr. Hasty he was experiencing issues with his left eye immediately prior to Dr. Hasty
performing surgery on his right eye on May 16, 2018, and/or during his follow-up
appointment on May 17, 2018.
10 The article states that it is the position of the American Academy of Ophthalmology
“that an operating ophthalmologist’s duties to a patient regarding postoperative
medical care are satisfied if the ophthalmologist” either personally performs the
postoperative care throughout the patient’s “at-risk” period or arranges for the
patient’s postoperative care to be completed by a qualified and licensed practitioner
with the patient’s consent. Doc. 157-1 at 1.
“To prevail in a medical malpractice case a plaintiff must establish the
following: the standard of care owed by the defendant, the defendant’s breach
of the standard of care, and that said breach proximately caused the damages
claimed.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984).
“The standard of professional care is a level of care, skill, and treatment that,
in consideration of all surrounding circumstances, is recognized as acceptable
and appropriate by similar and reasonably prudent health care providers.”
Saunders v. Dickens, 151 So. 3d 434, 441 (Fla. 2014) (citing Fla. Stat. § 766.102)
(“[T]he burden is on the plaintiff to establish that the care provided by the
physician was not that of a reasonably prudent physician.”). “As to the element
of causation, ‘Florida courts follow the more likely than not standard of
causation and require proof that the negligence probably caused the plaintiff’s
injury.’” Cantore v. W. Boca Med. Ctr., Inc., 254 So. 3d 256, 260 (Fla. 2018)
(quoting Gooding, 445 So. 2d at 1018). “In other words, the plaintiff must show
that there is a 51% or more likelihood that the defendant’s negligence caused
the plaintiff’s injuries.” Wroy v. N. Miami Med. Ctr., Ltd., 937 So. 2d 1116, 1117
(Fla. 3d DCA 2006).
a. Count X
In Count X of the Second Amended Complaint, Plaintiff claims that “[a]s
a direct and proximate result of Dr. Hasty’s negligence, [Plaintiff] lost the sight
in his left eye, endured unnecessary pain [and] suffering[, and] his quality of
life has been adversely affected forever.” Doc. 85 at 37. As detailed above,
Defendants present evidence, in the form of medical records and Declarations
from Dr. Hasty and Dr. Beneke, to show that Dr. Hasty did not breach the
standard of care. Defendants have carried their initial burden of showing there
are no genuine issues of material fact with respect to Count X. Thus, the burden
on summary judgment shifts to Plaintiff, who must go beyond the pleadings and
“designate specific facts showing that there is a genuine issue for trial.” Jeffery
v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir. 1995) (internal citations
and quotation marks omitted). As explained below, the Court finds that
Plaintiff has not done so.
In opposition to Defendants’ Motion, the only expert testimony that
Plaintiff submitted was the affidavit of Dr. Channon, Plaintiff’s pre-suit expert.
Dr. Channon’s affidavit neither addresses the standard of care for someone in
Plaintiff’s position nor discusses Plaintiff’s diagnosis, standard treatment, or
whether his sight could have been restored in the left eye.11 Instead, based
solely on the nurse’s May 24, 2018 medical record, Dr. Channon notes that “Dr.
Hasty, without the benefit of examination, and knowing the high risk of retinal
11 While Plaintiff argues in his Response and Sur-Reply about various ways Dr. Hasty
allegedly breached his duty to Plaintiff, Plaintiff’s unverified, lay opinions are
insufficient. See Guzman v. Lazzari, 394 So.3d 106, 110 (Fla. 4th DCA 2024) (“Only
experts are allowed to testify regarding a medical provider’s applicable standard of
care.” (citing Fla. Stat. § 766.102(5))).
detachment in this patient, prescribed drops instead of prompt ophthalmic
evaluation.” And then Dr. Channon concludes: “More likely than not, prompt
examination would have revealed the nature of the condition. . . . This failure
to examine the inmate delayed accurate diagnosis of the cause of loss of vision
and resulted in further delay in initiating referral to the appropriate
ophthalmologist for treatment. This more likely than not diminished the
chances of sight restoration in the inmate’s left eye.”
It is unclear whether Dr. Channon was aware that Dr. Hasty was not
physically present at the prison on May 24, 2018, and thus, he could not have
personally examined Plaintiff. Regardless, Dr. Channon does not explain or
support his conclusion. Notably, the medical records reflect that when Dr. Dure
called Dr. Hasty on May 24, 2018, Plaintiff had reported that starting on May
19, 2018, he could no longer see out of his left eye,12 and upon the nurse’s
examination on May 24, 2018, Plaintiff reported that the vision in his left eye
was “completely gone” and he could not see light through the left eye. Doc. 147-
2 at 15. Thus, by the time Dr. Hasty was called, Plaintiff was already reporting
being unable to see out of his left eye. Dr. Channon does not opine that Dr.
12 This is somewhat contradictory to Plaintiff’s notations in his sick-call request dated
May 21, 2018, in which Plaintiff stated that his eyes were hurting, he was seeing
traces going back and forth, and his vision was blurry. Doc. 147-4 at 1. Nevertheless,
there is no dispute that Plaintiff reported being unable to see out of his left eye on May
24, 2018.
Hasty’s alleged negligence more likely than not caused Plaintiff’s initial
blindness. And Plaintiff presents no expert testimony about the standard of care
or how Dr. Hasty breached that standard. Nor does Plaintiff present evidence
regarding whether his sight in his left eye could have been restored had he been
examined by an optometrist or ophthalmologist between May 24 and May 29,
2018. Dr. Channon’s unexplained and speculative conclusion that Dr. Hasty’s
failure to refer Plaintiff for “prompt ophthalmic evaluation” “more likely than
not diminished the chances of sight restoration” does not show that Dr. Hasty’s
actions or inactions probably caused Plaintiff’s blindness. See Gooding, 445
So.2d at 1020; see Wroy, 937 So. 2d at 1117, 1118.
While the Court is sympathetic to Plaintiff’s position, Plaintiff simply has
not carried his burden in responding to Defendants’ Motion. Dr. Channon’s
affidavit—the only expert testimony Plaintiff submitted—neither establishes
the standard of care nor that Dr. Hasty’s alleged actions or inactions more likely
than not caused Plaintiff’s blindness in his left eye. Thus, Dr. Hasty is entitled
to summary judgment on Count X.
b. Count XI
As to Plaintiff’s right eye, Defendants have shown, by reference to the
medical records and the Declarations of Dr. Hasty and Dr. Beneke, that Dr.
Hasty did not breach the standard of care and no genuine issue of material fact
exists. Indeed, the medical records indicate that on May 24, 2018, Dr. Dure
consulted with Dr. Hasty about the visual disturbances in Plaintiff’s left eye.
See Doc. 147-2 at 15-16. Further on May 29, 2018, Dr. Roberts diagnosed
Plaintiff with retinal detachment in his left eye and noted that Plaintiff’s visual
acuity in his right eye was 20/30. Doc. 147-2 at 17; Doc. 157-2 at 8-10. The
parties do not dispute that after May 24, 2018, Dr. Hasty was not involved in
Plaintiff’s medical care. The only expert testimony Plaintiff submitted does not
address any issues with respect to Plaintiff’s right eye. See Doc. 152-1 at 11
(averring that Dr. Hasty’s alleged negligence “more likely than not diminished
the chances of sight restoration in [Plaintiff’s] left eye” (emphasis added)).
Plaintiff has presented no evidence to create an issue of fact as to his right eye.
Thus, Dr. Hasty is entitled to summary judgment in his favor on Count XI.
c. Count XII
Finally, Defendant Advanced Eye Care is also entitled to summary
judgment on the vicarious liability count. Because Plaintiff failed to prove his
medical malpractice claims against Dr. Hasty, the vicarious liability count
against Advanced Eye Care automatically fails. This is so “because an alleged
vicariously liable employer and its employee are in no sense joint tort-feasors,
[and thus,] a party must establish an employee’s liability in a vicarious liability
action against the employer. If a party fails to do so, thus exonerating the
employee, a principal cannot be held liable either.” Tsuji v. Fleet, 366 So. 3d
1020, 1032 (Fla. 2023) (internal quotations and citations omitted); see also Goss
v. Hum. Servs. Assocs., Inc., 79 So. 8d 127, 131 (Fla. 5th DCA 2012) (“Vicarious
liability is not based on the negligence of the employer, but rather the
negligence of the employee imputed to the employer.”). Thus, Advanced Eye
Care is entitled to entry of summary judgment in its favor on Count XII.
Accordingly, it is
ORDERED:
1. Defendants Dr. Benjamin Hasty and Advanced Eye Care of Bay
County’s Motion for Final Summary Judgment (Doc. 148) is GRANTED. The
Court will withhold entry of judgment until the case concludes. See Fed. R. Civ.
P, 54.
2. By March 31, 2025, and every 120 days thereafter, Defendant
Corizon shall file a notice updating the Court on the status of Corizon’s
bankruptcy proceedings. Also, immediately upon any action by the bankruptcy
court that may affect the stay in this case, Defendant Corizon shall file a notice
so alerting the Court.
3. Pending further Order, the Clerk shall administratively close
this case.
DONE AND ORDERED at Jacksonville, Florida, this day of
January, 2025.
& Cimotbeg g. Corrig on
TIMOTHY J. CORRIGAN
Senior United States District Judge
23
JAX-3 1/21
c:
Counsel of Record
Roger David Alcott
1011 Jamaica Avenue
Fort Pierce, FL 34982
(772) 708-3186