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Toomer v. Wexford Medical Health Care Provider

United States District Court, D. Maryland

February 26, 2015



DEBORAH K. CHASANOW, District Judge.

Pending are Motions to Dismiss, or in the Alternative Motion for Summary Judgment filed by Defendants Wexford Health Sources, Inc., Ava Joubert, M.D., Gregory Flury, P.A., and April Shipley, L.P.N. ECF Nos. 19 & 30. Plaintiff has responded.[1] ECF Nos. 24 & 26. Defendants have replied (ECF No. 25) and Plaintiff has filed a surreply. ECF No. 27. Upon review of the papers and exhibits filed, the court finds an oral hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, the dispositive motions will be granted.


The case was instituted upon receipt of Plaintiff Derrick Toomer's complaint alleging he had been denied constitutionally adequate medical care. ECF No. 1. In support of his complaint, Plaintiff alleges that on May 15, 2013, while incarcerated at the North Branch Correctional Institution ("NBCI"), he was given the wrong dosage of insulin which caused him to lose consciousness and fall during a basketball game. Id., p. 4. He states that correctional staff quickly took him to the medical unit where he was seen by a nurse and sent back to his cell. Plaintiff states that his foot swelled to twice its normal size and the bottom of his foot turned black. Plaintiff states that correctional staff called the medical department and was told by "Nurse April" that "she didn't care, [he] could write her up [Plaintiff had] been seen already." Id.

Plaintiff states he endured extreme pain for the next 60 hours before being seen by Dr. Joubert who ordered x-rays. The x-rays showed Plaintiff suffered a hair line fracture of the fibula. He was admitted to the infirmary at Western Correctional Institution ("WCI"), provided ice, and his leg wrapped in an ace-bandage. Plaintiff states that the weight of the ice increased his pain and he fought with nurses to keep the ice off of his leg until May 16, 2013, when he was seen by Dr. Ottey who prescribed Tylenol 3 and an injection twice daily which managed Plaintiff's pain. Id.

On May 19, 2013, Dr. Joubert examined Plaintiff and remarked, "Oh, I thought someone would've taken care of you by now." Id., p. 4. Joubert put a half-cast half-splint on Plaintiff's lower leg and foot. Id., p. 5. Plaintiff asked why he was not being provided a hard cast and Joubert, Dr. Stallworth, and "every nurse that came near [him]" replied, "They couldn't and wouldn't touch [his]my leg until a[n] orthopedic specialist evaluated [him]." Id. Plaintiff states he was returned to his cell to wait for an appointment with the orthopedist.

Plaintiff was scheduled to see the orthopedist on June 7, 2013, but on that date was informed that he had a court date for the same day. Security at the Jessup Correctional Institution ("JCI") advised Plaintiff that his court appearance would take precedence over his hospital appointment. Plaintiff refused to go to court, security cancelled his doctor's appointment, and he was returned to NBCI. Id.

Plaintiff was rescheduled and transported to Bon Secours for evaluation by Dr. Chris[2] in late June. Dr. Chris, the orthopedic specialist, advised Plaintiff that had he been seen within seven days of his injury "it would've been a simple fix" but given the amount of time that passed he would need steel screws in his fibula, a steel plate on his ankle, and the tendon reattached. Id.

Plaintiff underwent surgery on July 18, 2013. A month later he was brought back to Bon Secours to have the staples removed. After removing the dressing, Dr. Chris wrapped Plaintiff's lower leg with a clear dressing and ace bandages. He was told to test putting weight on the leg, and to shower with both the clear dressing and ace bandage, Id., p. 5

In mid to late August, Plaintiff's dressing began to come off and peel. Plaintiff submitted a sick call slip. He was seen by Joubert who cleaned the wound, rewrapped it, and provided Plaintiff fresh ankle wraps. Id., p. 6. Plaintiff was scheduled to return to Bon Secours on September 16, 2013, for follow-up, but security refused to take him as he did not have the proper paperwork for his ankle wrap or ace bandages. Id. P.A. Flury refused to provide Plaintiff the paperwork to go the hospital. Id.

Plaintiff submitted several sick call slips regarding the incident and Joubert advised him that it was his fault he was not transported as he should have removed the ankle wrap and ace bandage, despite Joubert having previously instructed him to shower with the ankle wrap and bandage on and not to take it off. Id. Due to continued swelling in his ankle, Plaintiff asked Joubert to renew the paperwork for his ankle wrap, bandages and crutches but she replied that Plaintiff was standing tall and did not need crutches. Id.

Plaintiff states his ankle and lower leg cause him pain and the top of his foot is swollen and does not bend the way it should. Id. He states that he takes narcotics to control the pain and will need to do so for the rest of his life. He indicates the steel screws and plate will remain in his leg for the rest of his life. Id., p. 8.

Plaintiff indicates that Joubert and Flury have animus toward him for unknown reasons and have deliberately refused to provide him care. ECF No. 25.

Defendants indicate that Plaintiff suffers from insulin dependent diabetes and suffered a left ankle fracture with ligament tear which required surgical repair. ECF No. 19, Ex. 1, pp. 3-4; Ex. 2. Plaintiff has been non-compliant with the management of his diabetes including refusing insulin and diabetic assessments for blood glucose monitors. He also refused to adhere to a diabetic diet. Id. Additionally, Plaintiff has been non-compliant with care related to his ankle injury in that he has refused to attend scheduled follow-up appointments with the orthopedic specialist and has been non-complaint with directives regarding elevating the ankle, applying ice, and keeping weight off of the ankle. Id.

Plaintiff receives 75 units of long acting insulin administered by nursing staff subcutaneously every evening, with additional units administered based on Plaintiff's blood glucose levels as determined by a finger stick test. Id., Ex. 1, pp. 283-84; Ex. 2. If Plaintiff refuses the blood glucose test it is not possible for staff to determine whether additional insulin units are required above Plaintiff's daily dose. Id., Ex. 2.

On the morning of May 14, 2013, Plaintiff refused the blood glucose test. Id., Ex. 1, pp. 229, 237. That evening, Nurse Buck was called to evaluate Plaintiff for complaints of dizziness. Id., pp. 1-2. Plaintiff advised Buck that he became dizzy during a basketball game and almost passed out. He denied any symptoms during the assessment and was alert and oriented. His blood glucose level was 127, within normal limits for a person with Type II diabetes.[3] Id.; Ex. 2. Plaintiff's gait was steady. Id., Ex 1, pp. 1-2. He was instructed to rest, increase his fluids, and submit a sick call slip if he experienced a worsening of symptoms. Id. He was seen the following morning by Dr. Joubert. Id., pp. 3-4. Joubert reviewed the tape of the exercise yard and observed Plaintiff walking without difficulty when he began to wobble slightly, recovered, stood against the wall, then fell to the ground. Id. Joubert advised Plaintiff that his diabetes was "chronically" out of control. Plaintiff denied chest pain, shortness of breath, heart palpitations, excessive thirst, foot ulcers, frequent infections, frequent urination, slow healing wounds or sores, tooth of gum disease changes in weight, or heartburn. Id. Joubert noted that the injury to plaintiff's ankle was a result of the fall the previous day. She ordered x-rays of Plaintiff's left foot and ankle which were completed that morning. The preliminary results of the x-rays showed no acute evidence of a fracture of the foot but did show an acute fracture of the ankle. Plaintiff was admitted to the infirmary at WCI for observation. Joubert also ordered a "tong splint" for Plaintiff's left ankle.

After being admitted to the WCI infirmary, he was seen by Kimberly Martin, R.N. Plaintiff told Martin he had not taken his medication that day and was hungry. Id., pp. 5-6. Swelling was observed around Plaintiff's left ankle. His foot and ankle were wrapped with an ace bandage, ice applied, and the ankle elevated. Plaintiff's blood sugar was 447. Toradol was prescribed for pain relief and 15 units of Humulin for his elevated blood-glucose levels. He was also given lunch. Id.

Plaintiff advised Lori Schafer, R.N. during infirmary rounds that his toes hurt, his foot wrap was too tight, and he needed pain medication. Id., p. 7. Schafer noted swelling of Plaintiff's left ankle. His foot and ankle were rewrapped with the ace bandage, ice applied, and the leg elevated. Plaintiff's blood sugar was 386. He ate his dinner and offered no further complaints that night. Id.

On May 16, 2013, at 1:15 a.m., he complained that the pain in his ankle was seven out of ten. Id., pp. 8-9. Blood sugar levels taken at 4:20 a.m. registered 207. He refused insulin. At 7:45 a.m., Plaintiff advised that he no longer wanted to elevate the leg or apply ice to the ankle. Id., p. 12. At approximately 9:30 a.m. he requested to leave the infirmary and return to his cell. Id.

Around that same time, Plaintiff was seen by Renato Espina, M.D. Id., pp. 10-11. Espina noted the area was wrapped with an ace bandage, slightly swollen, and tender to the touch. Plaintiff complained of pain. Espina also noted Plaintiff was diabetic with poorly controlled blood sugar. Id. Espina ordered Plaintiff on bed rest and to ambulate with a walker. He also ordered an orthopedic consultation. Plaintiff received a walker that afternoon, along with pain medication. Id., p. 12.

Later that day, Plaintiff complained that his pain was a ten out of ten. He also asked to be taken off the diabetic diet and placed on a 2400 calorie diet with a snack bag. Id., p. 13. His blood sugar was tested at 4:00 p.m. and was 206. Dr. Ottey approved Plaintiff's diet request. Id.

On May 17, 2013, at 12:10 a.m, Plaintiff advised Karen Meyers, R.N. that he received a shot which relieved his pain. Id., p. 14. He advised that he did not need ice and did not want to elevate his foot. He reported his pain as a zero out of ten. Swelling of the Plaintiff's left ankle was noted. Id. Later that morning Plaintiff advised Kimberly Martin, R.N. that his ankle did not hurt unless he moved it. Id., pp. 16-18. That afternoon he advised staff he was refusing medication until he was seen by a doctor. Id. Shortly thereafter he was seen by Dr. Ottey. Plaintiff reported pain in the left ankle but no tingling or numbness. Decreased range of motion was noted. Plaintiff was told to elevate the ankle, apply ice, continue his current medications, and was granted partial weight-bearing status. Id., pp. 16-18.

Plaintiff remained in the infirmary on May 18, 2013. Patricia Knotts, R.N., observed that Plaintiff complained of pain when he moved his foot. His blood sugar at 4:00 a.m. on May 18, 2013 was 118. Id., p. 20. Later that day, Nurse Ravenscroft noted Plaintiff offered no complaints and was pleasant and cooperative. Id., pp. 21-22. Minimal swelling of Plaintiff's ankle was noted. He was able to move his toes and reported pain as six out of ten. That afternoon Plaintiff's blood sugar measured 126. Id., pp. 21-22. That same day, Plaintiff was seen by Dr. Ottey. Id., pp. 23-25. Plaintiff reported pain but stated medication gave him relief. He was advised to continue with his current treatment plan. Id.

On May 19, 2013, while in the infirmary, Plaintiff reported his ankle was getting better and denied numbness or tingling. Decreased swelling was observed. He ambulated with a walker. He was given a Toradol shot for pain. At various times he rated his pain at six out of ten and four of ten. Id., pp. 26, 28. He was seen that day by Dr. Joubert who applied a tong splint and directed Plaintiff to continue rest, elevating and icing of his ankle. Joubert noted she was waiting for the final interpretation from the radiologist and planned to call Dr. Krishnaswamy, an orthopedic specialist at Bon Secours. Id.

On May 20, 2013, while in the infirmary, Plaintiff reported his pain as eight out of ten. Id., p. 73. He denied numbness or tingling. He was given Toradol. Id., p. 33. That day at 11:04 a.m., the radiologist's reading of plaintiff's x-rays were posted which showed no fracture of the left foot but an acute left ankle fracture of the distal end of the fibula with no significant displacement. Id., p. 256; Ex. 2.

Plaintiff was seen that day by Joubert during rounds. Id., p. 34-35. Plaintiff's ankle was stable and it was noted his diabetes had been better controlled during his infirmary stay. Joubert called Krishnaswamy to discuss the final radiology reports and treatment options. Id.; Ex. 2. Pending examination of Plaintiff by Krishnaswamy it was decided that Plaintiff's injury could continue to be managed with the splint, he was to remain non-weight bearing with crutches when ambulating, and he should regularly elevate the leg to reduce swelling. Id., Ex. 2. The x-ray results were reviewed with Plaintiff. Id., Ex. 1, pp. 34-35.

On May 21, 2013, while in the infirmary, Plaintiff's blood sugar remained controlled in the morning. Id., p. 36. In the evening his blood sugar was high but he refused insulin. Id., 40, 242. He requested pain medication and to see a doctor. He received a shot of Toradol and thereafter did not offer any complaint of pain. Plaintiff was seen by P.A. Lum who reported Plaintiff was without pain and stable, but showed weakness in the left foot. Id., pp. 36-40. Lum advised Plaintiff to continue with his treatment plan. Id. During her ...

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