Virgil v. Erie County Medical Center
6:10-cv-06479
W.D.N.Y.Aug 6, 2013Background
- Plaintiff Melvin Virgil, an incarcerated patient, sued physician assistant Jennifer Darlak and her employer Exigence arising from treatment at Erie County Medical Center in April 2009 after a portion of an IV catheter broke and remained in his arm.
- On April 7, 2009 Darlak examined Virgil at ~7:50 a.m., diagnosed phlebitis, gave conservative care instructions, and discharged him; an x-ray at ~10:52 a.m. revealed the retained catheter tip.
- A Doppler confirmed the foreign object; elective surgery to remove the tip was scheduled for the next morning after Virgil consented that evening.
- Plaintiff alleged a ~3-hour diagnostic delay caused significant pain, impaired blood flow, and risk of death; defendants submitted an expert (Dr. Cherr) opining care met the standard and the delay caused no harm or earlier surgery.
- Defendants moved for summary judgment on federal (§1983 Eighth Amendment deliberate indifference) and state-law claims (medical malpractice, gross negligence, negligent infliction of emotional distress), plus claims against Exigence (respondeat superior, negligent training).
- The court granted summary judgment for defendants, dismissing all claims against Darlak and Exigence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ~3‑hour diagnostic delay to identify retained catheter tip constituted a "serious medical need" under the Eighth Amendment | Virgil: delay aggravated pain, interfered with blood flow, and posed a risk of death | Darlak: retained tip did not create an emergency; tests and scheduling show no harm from delay | Court: Not a sufficiently serious deprivation — no evidence delay caused substantial harm; summary judgment for defendants |
| Whether Darlak acted with deliberate indifference (subjective prong) | Virgil: failure to verify his complaint and delayed diagnosis shows indifference | Darlak: examined patient, made reasoned diagnosis (phlebitis) based on symptoms; rare occurrence of catheter break explained assessment | Court: No evidence of recklessness or conscious disregard; misdiagnosis at most negligence; summary judgment for defendants |
| Medical malpractice / deviation from standard of care | Virgil: Darlak negligently failed to diagnose and delayed care | Darlak: expert affidavit (board‑certified surgeon) opines care consistent with standard | Court: Plaintiff failed to produce opposing expert evidence; defendant’s expert controls; malpractice claim dismissed |
| Gross negligence; negligent infliction of emotional distress; employer claims (negligent training, respondeat superior) | Virgil: conduct sufficiently egregious to support gross negligence / emotional distress; employer vicariously liable or negligently trained | Defendants: conduct did not evince reckless disregard; Darlak acted within scope of employment; Exigence not liable absent underlying tort | Court: Gross negligence/infliction claims fail (no recklessness or outrageous conduct); negligent training dismissed because employee acted within scope; respondeat superior dismissed because underlying claims against Darlak were dismissed |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
- Estelle v. Gamble, 429 U.S. 97 (Eighth Amendment deliberate indifference standard for inadequate medical care)
- Chance v. Armstrong, 143 F.3d 698 (deliberate indifference involves subjective and objective components)
- Smith v. Carpenter, 316 F.3d 178 (prisoner must show serious medical need and deliberate indifference)
- Farmer v. Brennan, 511 U.S. 825 (subjective awareness and disregard of substantial risk)
- Brock v. Wright, 315 F.3d 158 (factors for assessing seriousness of medical need)
- Gallo v. Prudential Residential Servs., 22 F.3d 1219 (court’s role at summary judgment: issue-finding not resolution)