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Aurel v. Wexford Health Source, Inc.

United States District Court, D. Maryland

January 7, 2015

MICH AUREL, #317239, Plaintiff,



Mich Aurel, a self-represented inmate at Maryland's North Branch Correction Institution ("NBCI"), filed suit under 42 U.S.C. § 1983, alleging, inter alia, that he has been denied adequate treatment for Hepatitis A, B & C, tuberculosis, and orthopedic problems while a state prisoner. ECF 1.[1] The court ordered plaintiff to supplement his suit (ECF 2), because initially he did not name any defendants. Thereafter, plaintiff named Wexford Health Source, Inc. ("Wexford") as the defendant. ECF 3.[2]

Aurel alleged that he tested positive for tuberculosis and Hepatitis A and B, yet claims he has not received proper medical treatment for his conditions. Id. In addition, Aurel filed three separate letters, construed as supplemental complaints, in which he alleged that his orthopedic shoes and boots had been confiscated, medical staff refused to measure a raised bump on his arm for a tuberculosis evaluation, and he was denied treatment for pain in his left ankle, right ear, and throat and for night sweats, shortness of breath, and fatigue. ECF 12, 13, & 14. Aurel seeks injunctive relief and compensatory damages of $1, 000, 000. ECF 3 at 3.

Wexford has filed a motion to dismiss or, in the alternative, motion for summary judgment, (ECF 15), along with a Memorandum (ECF 15-1) (collectively, the "Motion"). The Motion is supported by about 160 pages of plaintiff's prison medical records as well as the Affidavit of Colin Ottey, M.D. Dr. Ottey, a licensed Maryland physician, is employed by Wexford and serves as the Medical Director for inmates confined, inter alia, at NBCI. ECF 15-5 ¶ 1. He avers that he has personally participated in the treatment of plaintiff and has also reviewed Aurel's medical records. Id. ¶¶ 4, 5. In his Affidavit, he recites from the medical records and also provides expert opinions.[3]

Aurel has filed three opposition responses. See ECF 19, 20, 21. In addition, Aurel has filed his own motion for summary judgment. ECF 26. In response, Wexford filed a combined motion to strike Aurel's dispositive motion and an opposition. ECF 27.

Aurel has also filed motions for injunctive relief, for appointment of counsel, and for a temporary restraining order. ECF 22 & 28.[4] Wexford filed a reply. ECF 23. Claiming that Aurel has sent counsel a bag of debris, Wexford has also filed a motion to enjoin Aurel from sending any "dust, hair or physical matter" to defendant or its counsel. ECF 25. Counsel argues that the forwarding of such materials is inappropriate, serves no legal or evidentiary function, and is potentially harmful to Wexford's counsel and staff. Id.

No hearing is needed to resolve the motions. See Local Rule 105.6. (D. Md. 2014). For the reasons that follow, Wexford's Motion (ECF 15), construed as one for summary judgment, shall be granted. Wexford's motion for injunctive relief (ECF 25) shall also be granted. Aurel's motions for injunctive relief, for appointment of counsel, for summary judgment, and for temporary restraining order (ECF 22, 26, 28) shall be denied. Wexford's motion to strike (ECF 27) shall be denied, as moot.

I. Factual Summary

According to Wexford, Aurel is a 49-year old male[5] with a medical history significant for gastroesophageal disease; peptic ulcer disease; positive tuberculosis skin tests in 2002 and 2005 without active disease; positive Hepatitis A & B surface antibody tests in 2009; seasonal allergies; syncopal episodes with implanted cardiac monitor, which was surgically removed in December 2006; micro-fractures of the right heel, diagnosed in 2011, with calcaneous deformity and chronic apophysitis; and a 2004 surgically repaired left lateral ankle fracture with retained hardware. See generally ECF 15-4, Ex. 1 (Aurel's medical records);[6] ECF 15-5, Ex 2 (Affidavit of Colin Ottey, M.D.).

Wexford asserts that prior to July 1, 2012, it was not contractually responsible for providing medical care to Maryland Department of Public Safety and Correctional Services inmates. Instead, it acted upon referral requests for inmates as part of the utilization review process. ECF 15-1 at 2-3; ECF 15-5 ¶ 2. Prior to July 1, 2012, Corizon, Inc., formerly known as Correctional Medical Services, was the contractual provider for primary health care for DPSCS inmates. Ottey Aff., ECF 15-5 ¶ 2.

A. Tuberculosis Care

According to the medical records provided by Wexford, Aurel was incarcerated in December 2003. At his initial intake, he reported a history of "PPD, " i.e., positive tuberculin purified, protein derivative[7] skin test. ECF 15-4, Ex. 1 at 2-3. He denied any previous treatment for the disease. Id. at 2.

On March 7, 2005, after Aurel voiced complaints that he was coughing up blood, plaintiff was admitted to the infirmary for respiratory isolation to rule out tuberculosis. Id. at 113. During this admission, a chest x-ray showed no active infiltrate or pneumonia. Id. at 132. Serial sputum tests were administered to determine if Aurel had an active tuberculosis infection. The smears and cultures were negative. Id. at 138-141. On March 10, 2005, Aurel's PPD reading was reported as positive at 26 mm. Id. at 112. The following date he was discharged with a diagnosis of bronchitis and no active tuberculosis. However, it was recommended that he be treated for a latent tuberculosis infection ("LTBI") with a nine month regimen of directly observed Isoniazid ("INH") therapy.[8] Id. at 125. Aurel received this prescribed therapy throughout 2005. Id. at 124. On March 23, 2009, Aurel received a chest x-ray which was negative for any active disease. ECF 15-4 at 133-34.

On February 22, 2010, Aurel received a PPD test which was read as negative at 0 mm. ECF 15-4 at 16. On February 29, 2012, he was seen by Saidatu Baiyewu, LPN, for tuberculosis signs and symptom review. Id. at 30. It was noted that he had no active signs or symptoms suggestive of tuberculosis. Id. On March 2, 2012, Aurel underwent a chest x-ray which was negative for any active disease. Id. at 137. On February 22, 2013, Aurel was seen by Nurse Baiyewu, who noted no active signs or symptoms suggestive of tuberculosis. Id. at 38.

Aurel was seen by Nurse Kristi Cortez on December 9, 2013. Id. at 50. At that time, Aurel reported respiratory disorders including asthma and tuberculosis. Id. Aurel also reported his cell fan had been confiscated and that he needed a medical order for a fan. Id. On December 14, 2013, as well as January 8, 12, 19 and 28, 2014, Aurel submitted sick call slips raising complaints of respiratory disease which he believed threatened his life and were exacerbated by his hot cell and the removal of his fan. He also requested a test for tuberculosis. Id. at 50-51, 98, 101-103 & 107.

On February 6, 2014, medical staff were called to Aurel's housing unit after a report that Aurel was "laying flat on his back on his cell floor gasping for air." ECF 15-4 at 66. On arrival, Nurse Autumn Durst observed Aurel on his back "taking large deep breaths...." Id. A pulse oxygen reading was 98% out of 100% on room air. Aurel's heart rate was between 84 and 92, id. at 67, his blood pressure was within normal limits ("WNL"), and no use of accessory muscles for breathing was observed. Id. at 66-68. However, Aurel was wheezing. Dr. Ottey was contacted and instructed Durst to administer a nebulizer[9]treatment. Plaintiff completed the treatment without difficulty. Id. at 67.

That same day, Aurel was seen by Ava Joubert, M.D., to whom Aurel reported that his lung problems were returning due to the hot and dry air in his cell. ECF 15-4 at 69. Aurel's lungs were clear to auscultation and percussion.[10] His pulse oximetry[11]was 99% and his mouth, nose, and throat were found to be unremarkable. Id. at 69-70. A chest x-ray was ordered and the results showed clear lung fields and no acute or active disease. Id. at 138. Aurel was advised to increase his fluid intake and to try placing a moist blanket over his heating vent to improve humidity in his cell. Id. at 69-70.

On February 20, 2014, Aurel was seen by Physician's Assistant ("PA") Quinta Lum and was informed that his last PPD test was negative. Id. at 74-75. On February 26, 2014, he was seen by Nurse Travis Barnhart and informed the nurse that he had been infected with tuberculosis and never treated for the disease. Id. at 79. Barnhart instructed Aurel that his last chest x-ray results from February 2014 showed both lung fields as clear with no acute disease. Id.

In his Affidavit, Dr. Ottey opined: "Plaintiff does not have TB." ECF 15-5 ¶ 10. He notes that Aurel was treated for LTBI "as a prophylactic measure." Id. Moreover, Aurel was "repeatedly" told that he does not have latent or active TB. Id.

B. Hepatitis Testing and Treatment

On October 9, 2009, a hepatic profile study was ordered for Aurel. ECF 15-4 at 12-14. On December 22, 2009, the results of that study detected positive Hepatitis A total antibodies and positive Hepatitis B surface antibodies. Id. at 147. Wexford maintains, through the Affidavit of Dr. Ottey, the Medical Director for state inmates confined in the Cumberland, Maryland region, that these test results indicate past exposure but immunity to both the Hepatitis A and B virus, from ...

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