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Toomer v. Warden

United States District Court, D. Maryland

February 10, 2014

DERRICK TOOMER, Plaintiff,
v.
WARDEN, et al., Defendants.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Pending are Motions to Dismiss or for Summary Judgment filed by Defendants J. Michael Stouffer, the Department of Public Safety and Correctional Services (DPSCS), [1] and Wexford Medical Health Care Provider (Wexford). ECF Nos. 23 & 41. Plaintiff has responded.[2] ECF Nos. 45 & 50. Upon review of papers and exhibits filed, the court finds an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2011). For the reasons stated below, the dispositive motions will be granted.

Background

The case was instituted upon receipt of correspondence from Plaintiff Derrick Toomer, then a pretrial detainee held at the North Branch Correctional institution. Plaintiff complained that as a pretrial detainee he had no access to administrative remedies and generally alleged that he had been denied medical care while housed at the Baltimore County Detention Center. ECF No. 1. Thereafter Plaintiff filed a court-directed amended complaint naming Sharon Baucom, the Department of Public Safety and Correctional Services, M. Stouffer, and "Wexford Medical Health Care Provider" as Defendants. ECF No. 7.

Plaintiff alleged that the named Defendants refused him medical care for injuries he sustained after he was stabbed in the hand in April of 2010. Plaintiff states that after undergoing surgery he was provided a half-cast/half-splint to immobilize his hand and given discharge instructions directing he return for follow up in 7-10 days. Plaintiff states that he wore the splint for three months rather than for the 7-10 days as directed. He indicates he was not provided rehabilitation for his hand and forearm for 20 months resulting in his arm "heal[ing]wrong" and necessitating the daily use of Neurontin due to the nerve damage and pain. Plaintiff also claims that he has lost strength in two of his fingers and suffers from nightmares when his arm hurts because "it feels like I'm right back to BCDC fighting for my life."[3] Id.

Plaintiff's uncontroverted medical records demonstrate that on April 30, 2010, he was transported to Union Memorial Hospital for evaluation and treatment of a stab wound to his right forearm. ECF No. 41, Ex. 2, p. 490-94. At the time of Plaintiff's injury, surgery and immediate post-surgical care, Defendant Wexford solely provided onsite utilization review management services for off-site medical services, hospitalizations, and other specialized medical or clinical services provided to inmates in the custody of the DPSCS. ECF No. 41 and Affidavit. Wexford continued its role of utilization review but also undertook responsibility for primary patient care of inmates in the custody of DPSCS on July 1, 2012. Id.

Plaintiff underwent surgery to repair the laceration and tendon injury to the forearm. No pre-authorization of the surgery was required by Wexford due to the emergent nature of the injury. Thereafter, on October 30, 2011, Wexford received a request from Colin Ottey, M.D. for a physical therapy consultation after Plaintiff complained of decreased sensation and difficulty holding objects due to weakness in the 4th and 5th digits of his hand. Id., Ex. 1 & 2, p. 18-19, 24-25, 29-30. Dr. Ottey associated the complaints with neuropathy arising from Plaintiff's stab injury. The request for physical therapy was approved by Wexford on November 1, 2011. Id., Ex. A. Plaintiff received physical therapy to his right hand on November 29 and December 6, 8, 13, 15, 22, and 27, 2011. Id., Ex. 2 p. 32-33, 37-45.

On December 29, 2011, Wexford received a request for additional physical therapy sessions. The request was approved the same day and Plaintiff was provided additional physical therapy throughout January. Id., Ex. 2, pp. 46-51. On January 24, 2012, Plaintiff's physical therapist noted Plaintiff reported improvement in the functional use of his hand. Examination revealed functional grip strength and full range of motion within normal limits in his 4th and 5th fingers. Additionally, it was noted that Plaintiff demonstrated a positive tinel sign (a tingling sensation felt in the distal portion of a limb upon percussion of the skin over a regenerating nerve in the limb) over his surgical incision which was noted to be related to neuropathy. The therapist indicated Plaintiff had reached optimum benefit from physical therapy and Plaintiff was discharged. Id.

Plaintiff was seen by the physical therapist for recertification on March 13, 2012. At that time he indicated he continued to have problems with his right forearm. The physical therapist noted Plaintiff's complaints were related to neuropathy of the right forearm and recommended an additional physical therapy session. There is no record, however, that a request for physical therapy was presented to Wexford for review. Id., Ex. 1, Ex. 2 p. 53-54.

On April 4, 2012, Plaintiff was seen by Dr. Ottey in the chronic care clinic for his diabetes. Dr. Ottey issued no consult request for further physical therapy. Id., Ex. 2. p. 56-58.

Physician's Assistant Katie Winner examined Plaintiff on April 25, 2012. Plaintiff complained of arm pain for a year at a 9 out of 10 on the pain scale and requested an increase in his dose of Neurontin. Winner noted Plaintiff's right forearm was tender to palpation with decreased range of motion in the 4th and 5th digits and his grip strength was 4/5. Winner ordered application of cold and warm compresses and ice as needed to his arm. She also ordered front handcuffing and noted that the pharmacist would be consulted regarding Plaintiff's pain management. No consult for further physical therapy was generated by Winner. Id., p. 61-62.

Plaintiff was seen by Dr. Ottey on May 12, 2012, and complained of an increase in pain in the arm and hand. Id., p. 64-65. Ottey noted tenderness in the right forarm as well as Plaintiff's history of nerve injury. He ordered an increase in Plaintiff's Neurontin dose and recommended no weights or heavy lifting and for Plaintiff to return for follow up if there was no improvement in thirty days. Id., p. 64-65.

On July 1, 2012, Wexford became the medical contractor for DPSCS assuming the contract for the delivery of primary medical care and continuing its role as utilization review manager. Id., Ex. 1. At that time Plaintiff was receiving Neurontin, Naproxen and Triamcinolone Acetonide for his right arm. Id., p. 82.

On August 14, 2012, Plaintiff submitted a sick call slip seeking a refill of his Triamcinolone Acetonide prescription. The medication was refilled. He submitted sick call slips on September 2 and 23, 2012 regarding his medication regimen and complained that he had reinjured his arm. Id., Ex. 2, p. 373-74. On September 6, 2012, he was seen by Aliy Yahya, M.D. Plaintiff complained of pain and tingling in his right forearm and reported pain of 3 out of 10. Id., p. 96-98. Examination revealed his old stab wound and surgery scar but no ...


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