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Smith-Bey v. Petterson

United States District Court, D. Maryland

May 16, 2016

GERMAINE SMITH-BEY, # 405083, SID # 1934109 Plaintiff



         Germaine Smith-Bey filed suit under 42 U.S.C. § 1983, claiming that defendants, medical providers at Maryland Division of Correction facilities, provided him constitutionally inadequate medical treatment. ECF 1. Pending is a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment filed by counsel on behalf of defendants Jennifer Patterson, R.N., [1] Bruce Ford, P.A., Jason Clem, M.D., Terri Davis, P.A., Paul Matera, M.D., and Oladipo Olaleye, P.A.[2] ECF 10. Smith-Bey, who is self-represented, filed an opposition to which defendants have replied. ECF 13, 17. Thereafter, Smith-Bey filed a second opposition response and attachments to defendants’ dispositive motion. ECF 18.

         The case is briefed and ready for disposition. After considering the pleadings, exhibits, and applicable law, the court finds a hearing unnecessary. See Local Rule 105.6 (D. Md. 2014). For reasons to follow, defendants’ dispositive motion (ECF 10), treated as a motion for summary judgment, will be granted, subject to submission of a status report indicating if and when Smith-Bey was provided ACL repair surgery.


         I. Plaintiff’s Claims

         Smith-Bey, an inmate in the custody of the Maryland Division of Correction who is presently housed at the Maryland Correctional Institution in Hagerstown, Maryland (MCI-H”), filed this complaint on June 29, 2015.[3] Smith-Bey alleges defendants, who are medical providers employed by Wexford Health Sources, Inc., a private medical contractor that provides medical services to inmates at state facilities under contract with the State of Maryland (ECF 10-3 at 10), violated his rights under the Eighth Amendment to the United States Constitution by providing him inadequate medical treatment for a torn ACL[4] in his left knee. ECF 1. He alleges that the long delays in returning him for a follow-up visit after surgery resulted in deterioration of the condition of his knee. Id. at 15. He also avers that he was improperly removed from work duty in retaliation for filing an Administrative Remedy Procedure (“ARP”) request against Jennifer Patterson. Id. He seeks one million dollars in compensatory damages and one million dollars in punitive damages. Id.

         II. Treatment History

         The following facts are presented in the light most favorable to Smith-Bey, the nonmoving party. Smith-Bey’s medical history includes meniscal and ACL tears to his left knee, conditions he attributes to an injury suffered prior to incarceration. ECF 11-2 at 3. The verified and undisputed medical records provided by defendants demonstrate the following chronology of care.

         On July 23, 2013, Smith-Bey was seen by Bruce Ford, P.A., for a scheduled medical visit to consider his request to return to his prison job. Smith-Bey presented complaints of left knee pain and stated his knee “gave out” at times. Ford ordered x-rays and prescribed Naprosyn, a nonsteroidal anti-inflammatory drug (NSAID). Id. at 1; ECF 10-3 n. 1.

         On August 6, 2013, Ford saw Smith-Bey for complaints of left knee pain. The x-rays taken of his knee were negative. Ford observed Smith-Bey’s left knee was positive for tenderness and moderate pain with motion. Ford reordered Naprosyn and prescribed a knee brace. Ford wrote on the medical chart that he would consult Dr. Matera regarding possible cortisone injections. ECF-11-2 at 3, 4.

         On August 12, 2013, Terri Davis, P.A., examined Smith-Bey for complaints of left knee pain. Smith-Bey reported his left knee gave out and felt like it was twisted while walking. Smith-Bey complained Naprosyn was ineffective, but asked to continue it because he believed that nothing stronger would be prescribed for him. He complained he was assigned to a top bunk in his cell. Physical examination revealed some edema, but no locking, popping, or ligamentous laxity. Mild tenderness in the left knee was noted. Davis informed Smith-Bey that based on the examination an order for bottom bunk status was not indicated. Additionally, Davis administered a steroid injection to Smith-Bey’s left knee. Id. at 5. Smith-Bey reported feeling immediate relief after the injection.

         On September 25, 2013, Paul Matera, M.D., saw Smith-Bey for left knee pain. Smith-Bey stated he sustained the knee injury in 2002[5] after he jumped off a wall and twisted his knee. Matera noted a knee brace had been ordered and x-rays results were negative. Smith-Bey reported that prior to his incarceration, he was to receive physical therapy for his knee, but was incarcerated before it could begin. He also reported the steroid injection helped him for three weeks and NSAIDs were of some help. He reported that he works at a prison job and walks for exercise. Id. at 9. Matera’s physical examination of Smith-Bey revealed moderate pain with stiffness. Matera found Smith-Bey had no instability and had a full range of motion. Matera placed Smith-Bey on bottom bunk status for three months while he received knee injections. Id. at 10.

         On October 10, 2013, Matera administered a steroid injection to Smith-Bey’s left knee. Id. at 11. This was Smith-Bey’s second injection to the left knee, and a third injection would not be offered until February 14, 2014, if one was needed. Id. at 12.

         On October 21, 2013, Smith-Bey was seen by Kathy Killmoon, R.N., for complaints of knee pain. He reported the steroid injection was ineffective and asked to see Dr. Matera. When Killmoon explained that under medical policy she could refer him to a midlevel provider but not directly to Dr. Matera, Smith-Bey stated “I don’t want to see anyone then.” Id. at 13.

         On October 29, 2013, Smith-Bey reported to Laesha Kellam, R.N., that his most recent steroid injection was ineffective. He reported experiencing extreme pain since the injection and pain when walking. He reported he was unable to work on several occasions. He also informed her that he had yet to receive his knee brace. Id. at 14.

         On November 7, 2013, Smith-Bey reported his left knee pain was increasing and he had difficulty standing since his most recent injection. Smith-Bey had neither received his knee brace nor been given bottom bunk status. Terri Davis, P.A., told him that the knee brace had been ordered several times and Dr. Matera recommended him for bottom bunk status for three months. Id. at 16. Davis requested a physical therapy consultation for Smith-Bey. Id. at 17.

         On November 24, 2013, Smith-Bey presented knee pain complaints to Laesha Kellam, R.N. He indicated he was having difficulty walking and getting to meals. He was placed on activity restriction with meals in his cell until cleared by a medical provider. Id. at 18.

         On December 3, 2013, Smith-Bey reported to Bruce Ford, P.A., that physical therapy was not helping his knee pain. Ford told him that he had to complete physical therapy in order to be considered for further treatment. Smith-Bey reported he had yet to receive his knee brace. Ford noted the knee brace had been ordered multiple times. Ford ordered x-rays of Smith-Bey’s left knee and lumbar spine. Id. at 20, 21.

         On December 16, 2013, Ford submitted a request for Smith-Bey to be seen by an orthopedist. Id. at 163-164. Ford also prescribed Gabapentin. Id. at 23. Defendants explain Gabapentin is a medication that may be used to treat nerve pain. Id. at 6, n. 5.

         On December 23, 2013, Smith-Bey received a knee brace. Id. at 202.

         On January 7, 2014, Dr. Manning, an orthopedist, examined Smith-Bey and recommended an MRI to rule out a meniscus tear. Manning indicated it was likely that Smith-Bey required arthroscopic surgery. Id. at 185.

         On January 14, 2014, Smith-Bey was placed on bed rest, and a medical order to provide meals to him in his cell (“feed-in”) was issued.

         On January 19, 2014, Smith-Bey informed Terri Davis that the orthopedist had recommended an MRI of his left knee. Davis noted on the medical chart that she could not find documentation of the orthopedist visit and sent a request for additional information. Id. at 22. Davis indicated that she would contact Smith-Bey to let him know when the MRI request was written. She continued Smith-Bey on bottom bunk placement for six months and discontinued his bed rest and feed-in orders. Id. at 23.

         On February 13, 2014, Dr. Matera examined Smith-Bey. Smith-Bey declined Matera’s recommendation to be placed on no work status and asked when he would receive the MRI. Id. at 24. Smith-Bey reported experiencing pain at a level of 5 out of 10 with it increasing to 7 out of 10 by the end of the day. Matera observed Smith-Bey’s “gait was stable with slight antalgia, [6] no gross instability.” Matera prescribed Ultram for pain relief and ordered the MRI. Id.

         On February 21, 2014, Smith-Bey asked to be placed on bedrest and feed-in. He stated he was in too much pain to walk and his knee kept giving out. Nurse Kellam wrote orders to place him on these medical restrictions. Id. at 26.

         On April 2, 2014, Smith-Bey received an MRI at Bon Secours Hospital in Baltimore. Id. at 190. The MRI showed tears of the medial and lateral meniscal ligaments. Id. A complete tear of the ACL was also observed. Id.

         On April 17, 2014, Dr. Matera entered an administrative note on Smith-Bey’s medical chart indicating Smith-Bey was scheduled for an orthopedic follow-up visit with Dr. Manning. Id. at 27.[7]

         On May 8, 2014, Carl Oltman, P.A., renewed Smith-Bey’s Ultram prescription and added Indomethacin, a NSAID, to his medication regimen. ECF 10-3 n. 8. The medical chart reads “Left knee limited ROM [range of motion], severity is severe, associated with pain, worse with movement, improved by rest, status is worse.” Id. at 28. Oltman reported Smith-Bey was approved for surgery with Dr. Krishnaswamy at Bon Secours Hospital. Id. at 28. Defendants postulate that Oltman most likely meant to say that Smith-Bey was approved for a consultation for possible ACL surgery with Dr. Krishnaswamy. ECF 10-3 n.7.

         On June 5, 2014, Dr. Matera noted on Smith-Bey’s medical chart that an orthopedic consultation had been scheduled. Against Matera’s medical recommendation, Smith-Bey declined to be placed on no work status and also declined to use crutches. Dr. Matera reviewed and continued Smith-Bey’s medications. ECF 11-2 pp. 30-31.

         On June 13, 2014, Dr. Ashok Krishnaswamy’s examination of Smith-Bey revealed the left knee showed a range of motion between 20 and 110 degrees with positive Lachman and drawer signs.[8] Moderate crepitus[9] was also observed in the left knee joint. X-rays and an MRI revealed left knee arthritis with a tear of the left anterior and medial crucial ligaments. Dr. Krishnaswamy advised Smith-Bey that he first required arthroscopic knee surgery to correct the internal derangement and to examine the extent of the arthritis of the knee. Dr. Krishnaswamy recommended that Smith-Bey “have arthroscopic surgery of the left knee soon.” Id. at 172. If the arthritis was mild, Dr. Krishnaswamy indicated Smith-Bey might require an ACL repair at a future time. If the arthritis was moderate, there was no benefit from ACL reconstruction. Dr. Krishnaswamy explained he usually refers ACL repair procedures to University Hospital[10] for surgery. Id. at 172-77. In his complaint, Smith-Bey states Dr. Krishnaswamy told him “the long delays in me getting back in to see him about my ACL tear has [sic] my knee to deteriorate much further than when he first examined me.” ECF 1 at 15.

         On June 24, 2014, Dr. Matera saw Smith-Bey for his preoperative health assessment. ECF 11-2 at 32-34.

         On July 1, 2014, Bruce Ford, P.A., saw Smith-Bey for pre-operative evaluation and cleared him for arthroscopic surgery. Id. at 35-36.

         On July 15, 2014, Dr. Krishnaswamy performed arthroscopic surgery on Smith-Bey at Bon Secours Hospital. Id. at 178-79. Smith-Bey’s arthritis was observed in the early stages. Id. Krishnaswamy recommended physical therapy, a patella stabilizing knee brace, and a follow-up visit in five weeks. Id. at 180.

         On July 16, 2014, Smith-Bey was admitted to the prison infirmary for post-surgical treatment. Id. at 40-42. Medical providers placed Smith-Bey on bedrest and feed-in, and approved him for wheelchair use to visit the medical unit. Id. at 37. He was ordered physical therapy and prescribed Percocet for one week. Id.

         On July 17, 2014, Jason Clem, M.D., discharged Smith-Bey from the infirmary. Notes on the medical chart by Angela Walston, RN, read that Smith-Bey rated his pain as 8 out 10. Id. at 43. After Ultram was administered, he reported the pain lessened to 4 out of 10. Id. The notes indicate Smith-Bey was able to walk with a cane and Ultram controlled his pain. The notes read, “[l]eft knee swelling, severity is moderate, associated with pain, status is stable.” Id. at 44. Smith-Bey claims he expressed the need to remain in the infirmary longer, but his request was denied. He explains that once he left the infirmary, no one would provide him with proper medical care. ECF 1 at 13.

         On July 19, 2014, Smith-Bey was readmitted to the infirmary due to concerns of infection. Angela J. Scheib, RN, observed drainage on the gauze placed between the ACE wrap and dressing on Smith-Bey’s knee. Smith-Bey reported sweating and expressed concerns about increased drainage at the site of the surgery. ECF 11-2 at 46. The medical chart noted there were “no orders for dsg change. Area warm to touch with edema from knee to foot.” Id. at 46. Smith-Bey was intravenously administered Rocephin, an antibiotic, for three days. Id. at 52; ECF 10-3 n.16. Smith-Bey avers his bandages had not ...

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