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Romero v. Morgan

United States District Court, D. Maryland

March 20, 2014

MICHAEL R. ROMERO Plaintiff,
v.
PHILLIP MORGAN, DEPT. OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, WEXFORD HEALTH SOURCES, INC., and CORIZON HEALTH CARE SERVICES Defendants.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Pending are Motions to Dismiss or for Summary Judgment (ECF Nos. 22 and 25) filed on behalf of Defendants.[1] Plaintiff opposes the motions (ECF Nos. 29 and 31). Defendant Wexford Health Sources, Inc. (hereinafter "Wexford") replied to Plaintiff's Opposition (ECF No. 30). The court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2011).

Background

Plaintiff claims that in May of 2010, he underwent arthroscopic surgery to his right knee in preparation for reconstructive surgery. Plaintiff asserts that Wexford disapproved the reconstructive surgery based on the cost. As a result, Plaintiff claims he can only walk with the use of a cane and his knee "pops out" approximately five times per day, causing pain. ECF No. 1 at p. 5.

In his Amended Complaint Plaintiff states that Defendants Wexford, Corizon Health Services ("Corizon"), and Krishnaswamy have been aware of his anterior cruciate ligament and medial meniscus tear since July 16, 2010. He claims prior to July 16, 2010, his right knee frequently popped out of the socket, hyper-extended, and caused him to fall. On May 5, 2011, Plaintiff underwent arthroscopic "partial" surgery performed by Dr. Krishnaswamy. Plaintiff describes the partial surgery as failed and states it has left him handicapped since the date of his surgery. He further claims that Dr. Ali and Dr. Getachew did everything in their power to make Plaintiff suffer by depriving him of reconstructive surgery and denying pain medication. He claims Ali and Getachew told him that the "State will not pay for anything, and thus no care or treatment is necessary." ECF No. 10 at p. 4. In addition to his Eighth Amendment claim, Plaintiff alleges the failure to provide him with knee surgery is a breach of contract. Id. at p. 7.

Defendants Corizon, Sadik Ali, M.D., and Asresahegan Getachew, M.D. (hereinafter medical Defendants) assert Plaintiff reported that he tore his anterior cruciate ligament (ACL) in his right knee in 1992 or 1993 and began complaining about ongoing knee problems in July of 2010. ECF No. 22 at Ex. 2. Plaintiff was provided pain medication, primarily Neurontin and Ultram, both of which have potential for abuse and addiction.[2] Id. at Ex. 1. Dr. Krishnaswamy, an orthopedic surgeon at Bon Secours Hospital, examined Plaintiff on July 16, 2010, and reviewed x-rays as well as an MRI of his right knee. Id. Based on his examination, Dr. Krishnaswamy diagnosed Plaintiff with early arthritis, a possible ACL tear, and a possible medial meniscus tear. Id. For treatment, Dr. Krishnaswamy recommended arthroscopic surgery with possible future reconstruction.[3] Id. The recommendation for arthroscopic surgery was submitted for approval by Corizon physician, Dr. Ava Joubert, on September 20, 2010. Id. at Ex. 2, p. 4. On September 28, 2010, Wexford "declined" the surgery[4] and Plaintiff was provided a hinged ACL knee brace. Id. at p. 6.

On October 1, 2010, Plaintiff was transferred to Roxbury Correctional Institution (RCI). At the time of his transfer Plaintiff was prescribed Neurontin and assigned to a bottom bunk due to his knee injury. ECF No. 22 at Ex. 1, pp. 8 and 14. On October 27, 2010, Dr. Menon lowered Plaintiff's prescription for Neurontin, from 800 mg to 600 mg. Id. at Ex. 2, pp. 15-16. Plaintiff complained about the change in his medication on November 3, 2010, and explained that prior to his transfer to RCI there was a plan to put him on Ultram because his knee pain was not controlled. Id. at p. 20. On November 9, 2010, Indomethacin[5] was added to Plaintiff's medications and he was continued on 600 mg of Neurontin. Id. at pp. 20-21.

On December 10, 2010, Plaintiff complained that the Indomethacin was not working. When he continued to complain about the decreased dosage of Neurontin on January 12, 2011, he was prescribed a cane and his lower bunk assignment was renewed. Id. at pp. 24-26. Plaintiff's knee was examined by Dr. Davis on February 3, 2011, who noted the knee was not locking and was not swollen, nor was Plaintiff experiencing difficulty with standing or deep knee bends. Davis requested physical therapy so that Plaintiff's knee could be strengthened and renewed his prescriptions for Neurontin and Indomethacin. Id. at pp. 27-31. Davis later submitted a request for arthroscopic surgery on April 4, 2011, noting a failed hinge brace and loose patella (knee cap). The surgery was approved on April 13, 2011. Id. at p. 41. On May 5, 2011, Plaintiff underwent surgery at Bon Secours Hospital and was returned to custody with instructions for telephone follow up with the surgeon in one week. Id. at pp. 51-52. Plaintiff received physical therapy after the surgery. Id. at pp. 62, 69, 74, and 76.

Plaintiff was first prescribed Ultram on May 15, 2011, for acute post-operative pain. Id. at pp. 66-067. The pharmacist reviewed Plaintiff's medications and recommended decreasing the Neurontin dose to 900 mg because only 47% of the daily dose of 1200 mg. was absorbed, noting that "this explains why higher dosages do not provide any clinical benefit, but [cause] adverse effects." Id. at p. 70. On June 22, 2011, when Plaintiff was transferred to Maryland Correctional Institution Hagerstown (MCIH), he immediately submitted a sick call slip for medical housing and a bottom bunk, but declined a nurse visit on June 28, 2011. Id. at pp. 79-80 and 85-86.

On July 11, 2011, Plaintiff's knee was injected with Kenalog for pain relief and Davis ordered a bottom bunk, neoprene knee sleeve, single cell and assignment to F-2 tier, which is located close to the medical unit and does not require use of stairs. In addition, Plaintiff received a knee brace, cane and renewals of his prescriptions for Neurontin and Ultram. Id. at pp. 87-96.

Plaintiff was seen by a nurse on September 26, 2011, in response to his complaint of knee pain, but no swelling was observed. Id. at pp. 113-116. Two days later he was seen by Physician's Assistant (PA) Staub and Dr. Ali. Staub observed that Plaintiff was walking without a cane and without any apparent difficulty and discussed the continued need for his assignment to a single cell in F-2 tier with Ali. When Plaintiff met with Ali, he was told the arthroscopy was partially successful and that reconstructive surgery such as knee replacement may be required eventually. Ali gave Plaintiff no indication that reconstructive surgery would be approved at that time and continued Plaintiff's housing assignment for another year. In addition, Ali instructed Plaintiff to wear his knee brace and use his cane. Id. at pp. 117-20.

On October 12, 2011, Getachew examined Plaintiff to evaluate his request for an Ultram refill. Getachew advised Plaintiff it was appropriate to take Ultram immediately after surgery, but that taking addictive pain medication for chronic knee pain was ill-advised. Getachew planned to discuss the pain management issue at a patient care conference and to include an orthopedist in the consultation. When he was informed of the plan, Plaintiff became angry and threatened legal action if the Ultram prescription was stopped. Pending the meeting, Getachew continued the Ultram prescription until January 12, 2012, and discontinued Neurontin. Id. at pp. 124-25, 128-29.

Medical Defendants assert that Plaintiff began a "campaign" to have his prescriptions for Ultram and Neurontin kept intact. He began refusing to be seen by Getachew and instead requested to be seen by Dr. Ali for his refill requests. Id. at pp. 126-27; 130-31. When Plaintiff was seen by Staub on November 10, 2011, regarding his complaint that his Neurontin had been discontinued, he was advised that pain management was handled by Getachew. Id. at pp. 136-37.

On November 15, 2011, Plaintiff's pain management was discussed and, based on Dr. Krishnaswamy's diagnosis of early arthritis of the right knee, the providers attending agreed Plaintiff should be tapered off of Ultram over a two week period. Additionally, Plaintiff would be prescribed Indomethacin, which he had taken previously with no reported side effects, for his knee pain. Three days ...


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