United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
Mickey III ("Plaintiff) is an inmate incarcerated at the
Maryland Correctional Institution in Hagerstown. Maryland
("MCIH""). Pending before the Court is his pro
se Complaint filed pursuant to 42 U.S.C. §1983, alleging
that Defendants provided him with inadequate post-surgical
wound care. ECF No. 1 ("Complaint"). Defendants
Wexford Health Sources, Inc., Lori Slavick. P.A., and Richard
Sampong. P.A., by their counsel, have filed a Motion to
Dismiss or. in the Alternative. Motion for Summary Judgment.
ECF No. 9. and Plaintiff filed a Response in opposition. ECF
No. 13. Defendants filed a Reply to Plaintiffs Response. ECF
considering the pleadings and exhibits, the Court concludes a
hearing is unnecessary. See Loc. R. 105.6 (D. Md.
2016). For the reasons that follow. Defendants' Motion to
Dismiss or. in the Alternative. Motion for Summary Judgment.
ECF No. 9 shall be granted. The claims against Wexford will
be dismissed and summary judgment is granted as to claims
against Defendants Slavick and Satnpong.
December 16. 2015. Plaintiff filed a Complaint alleging that
Defendants' provided inadequate wound care after his
surgery to repair a torn Achilles tendon. ECF No. 1.
Plaintiff seeks an unspecified amount of monetary damages for
his pain and suffering. ECF No. 1 at 3, 
states that he ruptured his Achilles tendon in February of
2015. Id. On June 11. 2015. he had surgery to repair
the rupture at Bon Secours Hospital. Id. Plaintiff
claims that he tested positive for E Coli and pseudomonas as
a result of improper medical treatment. Id.,
Plaintiff asserts that the surgeon sent a progress note on
August 21, 2015. to inform Defendants "what to do."
but it was disregarded. Id. Plaintiff does not
provide a copy of that progress note or specify what the
surgeon recommended. He further alleges Defendants did not
prescribe recommended medications, but fails to indicate what
medicines were recommended, and that his treatment amounted
to malpractice. Id.
filed 149 pages of Plaintiffs medical records and the
declaration of Dolph Druckman. M.D., Acting Regional Medical
Director at MICH. in support of their dispositive motion. ECF
No. 9-4: ECF No. 9-5. Defendants" verified exhibits
detail the post-surgical wound treatment provided to
Plaintiff, and the records are summarized below.
his June 11. 2015 surgery at Bon Secours Hospital. Plaintiff
was admitted to the infirmary at Jessup Correctional
Institution. ECF No. 9-5 ¶ 6: ECF No. 9-4 at 9.
Plaintiff was transferred to the MCIH infirmary on June 13.
2015. and was seen by Belay Tessema. M.D. HCF No. 9-5 ¶
6; ECF No. 9-4 at 12-15. The medical report indicates
Plaintiff had no fever, no swelling at the wound site, no
discharge, no bleeding, and no erythema. ECF No. 9-5 ¶
6; ECF No. 9-4 at 12. Dr. Tessema indicated the injury and
surgical site were healing and stable, and prescribed
Robaxin. Acetomenophin-codcine. Percocet. Keflex, and
Ibuprofen for Plaintiff. ECF No. 9-5 ¶ 6; ECF No. 9-4 at
13. Dr. Tessema also ordered daily wound cleaning with normal
saline solution and dry dressing changes. ECF No. 9-4 at 13.
Keflex, an antibiotic, was prescribed prophylactically as
Plaintiff had no symptoms of infection at the wound site. ECF
No. 9-5 ¶ 6. On June 13. 2015. Tamara Medina. R.N.
changed Plaintiffs dressings, and noted no symptoms of
infection. ECF No. 9-4 at 15.
remained in the infirmary until June 16. 2015. ECF No. 9-5
¶ 7. Medical providers monitored his vital signs and
changed his dressings. ECF No. 9-5 ¶ 7: ECF No. 9-4 at
16-20. On June 16. 2015. Liberatus DeRosa. M.D. examined
Plaintiffs wound, observed that it was continuing to improve,
and noted no symptoms of infection. ECF No. 9-5 ¶ 7: ECF
No. 9-4 at 21-24. Dr. DeRosa continued Plaintiffs Percocet
prescription until June 22. 2015. to address Plaintiffs
complaints of continuing pain. ECF No. 9-5 ¶ 7; ECF No.
9-4 at 24. Dr. DeRosa discharged Plaintiff from the infirmary
with instructions to return in three days for a follow-up
visit. ECF No. 9-5 ¶ 7; ECF No. 9-4 at 24. Dr. DeRosa
also ordered daily cleaning of the wound, instructed
Plaintiff to perform toe pointing exercises, continued his
medications, and directed him to minimize walking. ECF No.
9-5 ¶ 7; ECF No. 9-4 at 24. Plaintiff was given
crutches, placed on "feed in status" so that his
meals were delivered to his cell, and instructed to wear a
splint on his right ankle. ECF No. 9-5 ¶ 7; ECF No. 9-4
at 24. The Keflex prescription was allowed to expire on June
17. 2015. in view of Plaintiff s improved healing and in the
absence of any symptoms of infection. ECF No. 9-5 ¶ 7;
ECF No. 9-4 at 24. On June 17, 2015. Plaintiff was returned
to the general prison population. ECF No. 9-5 ¶ 7: ECF
No. 9-4 at 26.
24, 2015, when Plaintiff was seen by Matthew Fairall. R.N.,
he rated his pain as 10 out of a possible 10. ECF No. 9-4 at
31. He complained that his medication had been stopped and he
was having a hard time getting the dressing changed,
Id. Plaintiffs Percocet and Baclofen prescriptions
had expired on the previous day, June 23, 2015. Id.
Fairall referred Plaintiff to a medical provider for a
medication evaluation, ordered Tylenol for pain, and informed
him that daily wound care had been scheduled. Id.
Plaintiff was listed as a "no show" for his nursing
sick call visit on July 7. 2015. Id. at 33.
8, 2015. Jonathan Thompson. M.D. saw Plaintiff for an urgent
provider visit. Mickey reported that his right foot
hyperextended while he was trying to climb stairs to the
dispensary, and he fell and hurt his lower back. ECF No. 9-5
¶ 8: ECF No. 9-4 at 34. He reported that he slipped on
water. ECF No. 9-4 at 36. Jessica Smith. R.N reported
Plaintiffs dressing and ace bandages were soaking wet. and
the dressing was changed. ECF No. 9-5 ¶ 8: ECF No. 9-4
at 36. Smith observed pitting edema at the right foot, but
observed no infection. ECF No. 9-5 ¶ 8; ECF No. 9-4 at
36. Dr. Thompson ordered x-rays of Plaintiffs lower spine,
right ankle, and right knee. ECF No. 9-5 ¶ 8; ECF No.
9-4 at 34. 36. Plaintiff was placed on bed rest and feed-in.
with his medications to be delivered to his cell, and was
prescribed 325 mg. of Tylenol and Tramadol HcL for pain. ECF
No. 9-4 at 34. The daily dressings were continued and
Plaintiff was instructed to continue using crutches.
Id. at 34, 36. Dr. Thompson ordered a follow-up
visit in three weeks with Dr. Krishnaswammy, an orthopedic
surgeon. Id. at 34. Plaintiff returned to his cell
using his crutches. ECF No. 9-5 ¶ 8: ECF No. 9-4 at
10. 2015. Defendant Fori Slavick saw Plaintiff during
provider rounds. Plaintiff reported feeling better. ECF No.
9-4 at 38-39. The results of his x-rays were still pending.
Id. Plaintiff asked to go to the commissary, but was
informed that because he was on feed-in status he could not
go. Id. He was informed that his safety was at risk
as demonstrated by his fall two days prior. Id.
Later that day. Matthew Fairall. R.N. examined Plaintiff at
the prison dispensary for scheduled wound care. Plaintiff
complained of aches, chills, a headache, and dizziness.
Id. at 40-41. Plaintiffs temperature was 100.8 and
his pulse was 110. Id. Fairall contacted Dr. Nimeiy
for further orders. Id. Plaintiff was administered
400 mg of Motrin and medical tests were ordered. Id.
Plaintiff was administered the first dose of Motrin at the
dispensary and. after one hour, his fever reduced to 99.2 and
his pulse reduced to 98.9. Id. Plaintiff was told to
follow up in the morning, and returned to his housing unit in
stable condition. Id.
11. 2015. Dr. Tessema examined Plaintiff, who complained of
pain in his right leg. swelling, and fever. ECF No. 9-5
¶ 9: ECF No. 9-4 at 42-43. Dr. Tessema observed that
Plaintiffs wound had opened, and it was tender and swollen.
FCF No. 9-5 ¶ 9: FCF No. 9-4 at 42-43. Dr. Tessema
diagnosed cellulitis, an infection, at the wound site. ECF
No. 9-5 ¶ 9; ECF No. 9-4 at 42-43. He prescribed
Baclofen. Clindamycin Hcl, Rocephin, and Potassium Chloride,
and ordered Plaintiff be admitted to the infirmary with bed
rest and daily dressing changes using sterile saline solution
and a clean dry dressing ("wet dry dressing"). ECF
No. 9-5 ¶ 9: ECF No. 9-4 at 42-43. He also ordered a
comprehensive blood laboratory test panel. ECF No. 9-5 ¶
9: ECF No. 9-4 at 42-43. While in the infirmary. Plaintiff
reported feeling dizzy, slight chills and leg pain. ECF No.
9-4 at 44-51. His temperature measured 100.9. and he was
administered antibiotics intravenously. Id. at 44.
12, 2015. Defendant Sampong saw Plaintiff during infirmary
rounds at 1:31 p.m. ECF No. 9-4 at 45-46. Sampong recorded
Plaintiffs wound status as stable and continued Plaintiffs
Tramadol and Rocephin prescriptions. Id. That
evening at 5:48 p.m., Laura Ausherman. R.N. saw Plaintiff for
skilled nursing care. Id. at 47. Plaintiff
complained of pain from his ankle to his calf, and Ausherman
contacted Dr. Ottey. who gave a verbal order to administer
Tylenol #3. Id. Ausherman observed Plaintiffs wound
had a necrotic area approximately 1, 5 inches long and 0.5
inches wide. Id. Several inches of the suture line
were separated, approximately 2mm of the length of the wound,
and were pink and draining. Id. Later, at 11:46
p.m., Plaintiffs dressing was changed again because it was
dripping onto the bedding. Id. at 48.
13, 2015, Cynthia Martin, R.N. saw Plaintiff for skilled
nursing care. ECF No. 9-4 at 49. She reported that Plaintiffs
appetite was good, that his dressing was clean, dry. and
intact when it was changed, and that lie was able to wiggle
all his toes. Id. Martin noted minimum swelling, no
pitting, and no redness. Id. Dr. DeRosa. who saw
Plaintiff later that same day. reported that the infection
was improving and Plaintiff had no fever, but noted Plaintiff
was in severe pain with any movement of his right ankle and
was unable to flex his foot. Id. at 50-51. DeRosa
wrote that Plaintiff "had a short visit in infirmary and
was discharged with f/u [follow-up] and during that time
infection seemed to develop." Id. at 50. DeRosa
said the tendon repair was abnormal. Id. There was
wound dehiscence and Plaintiff had a deep space infection
needing surgical debridement. Id. at 50-51. There
was discoloration around the entire incision. Id.
DeRosa prescribed Lovenoz and "wet dry" dressing
changes twice daily. Id. at 51. DeRosa indicated no
culture reports were noted on the medical chart to confirm
the accuracy of the antibiotics administered, and he ordered
lab studies. Id. at 50. DeRosa listed his assessment
of Plaintiffs condition as "uncontrolled
cellulitis/abscess leg." Id. at 51.
14. 2015. Laura Asherman. R.N. noted Plaintiffs wound culture
was completed. Id. at 52. She noted serosanguinous
drainage from the wound. Id. Later that day. Dr.
DeRosa reported Plaintiffs wound infection was not measurably
improved, but was not worsening. Id. at 53. DeRosa
discussed with Dr. Krishnaswammy that 20 cc of pus with
slight pressure was expressed from the wound. Id. at
54. He noted Krishnaswammy wanted to see Plaintiff because he
had worsened since his last follow up visit. Id. at
55: ECF No. 9-5 ¶ 9. Plaintiffs blood test results were
returned and revealed infection with E. Coli and pseudomonas
bacteria. ECF No. 9-4 at 58-61; ECF No. 9-5 ¶9.
15, 2015. Dr. DeRosa noted Plaintiff was running a low grade
temperature. ECF No. 9-4 at 57. Plaintiffs calf had slight
induration suggesting spread of infection and resistance to
the medications Rocephin and Clindamycin, but the wound had
shown some improvement in the past 2 days. Id.
DeRosa expressed concern that although Plaintiff was
scheduled to be seen by Dr. Krishnaswammy on Friday, he might
need to be seen sooner, and therefore asked the medical
director to examine Plaintiff. Id. DeRosa changed
Plaintiffs antibiotic to Vancomycin Hcl. Id. at 58.
16. 2015. Defendant Sampong examined Plaintiff. Id.
at 62. lie reported the wound was improving and recommended
warm compresses. Id.
Friday, July 17. 2015. Defendant Lori Slavick examined
Plaintiff. Id. at 64-65. She noted that Plaintiff
had pain and swelling in his right calf. Id. at 64.
Later that day. Plaintiff expressed concern to Nurse
Ausherman that the intravenous site should be changed and
initially refused his antibiotic medication. Id. at
66. Ausherman explained that she could not start a new
intravenous site without a medical order. Id.
Plaintiff changed his mind and the antibiotic was
administered. Id. Plaintiff rated his pain as 10 out
of 10 and said he ambulated with crutches. Id. As
noted. Dr. DeRosa's July 15. 2015 note had anticipated
that Plaintiff would be seen by Dr. Krishnaswammy that day, a
Friday. Id. at 57. The record does not reflect
whether Plaintiff was seen that day by Dr. Krishnaswammy.
18. 2015. Dr. Tessema examined Plaintiff. Id. at
67-68. Tessema noted Plaintiffs continuing pain and swelling,
and a yellow and while discharge from the wound site,
Id. at 67. Nurse Cynthia Martin saw Plaintiff for
skilled nursing care. Id. at 69. Plaintiff was
administered a Vancomycin test to monitor levels of the
antimicrobial drug in the blood. Id.: ECF No. 9-3 at
11 n.23. Martin recorded that Tessema was aware of the
results and indicated the Vancomycin would be adjusted. ECF
No. 9-4 at 69.
19. 2015, Matthew Carpenter. P.A., examined Plaintiff.
Id. at 70-71. Carpenter reported that Plaintiff was
awaiting a PICC line. Id. Carpenter observed the
wound was an irregularly-shaped. 5.4 cm ulceration with red,
yellow, and pink hard exudate scattered throughout.
Id. The wound was surrounded by a mild
thrombocytopenic purpura (TPP). ECF No. 9-3 at 11 n.24. TPP
is a rare blood disorder in which blood clots form in small
blood vessels throughout the body, and can limit the How of
blood to the body's organs. Id. Nurse Martin
changed Plaintiffs dressing that evening, and noted a
purulent yellowish brown drainage. ECF No. 9-4 at 72.
Plaintiff rated his pain as 7 out of 10. Id. The
results of Plaintiff s wound culture were listed as still
pending. Id. at 70-72.
20. 2015. Nurse Martin reported that Plaintiff had no fever,
changed his dressing, and continued his antibiotics.
Id. at 73. Martin noted a tetemedicine conference
was scheduled for 1:00 p.m. (1300 hrs.) to discuss Plaintiffs
wound evaluation and treatment. Id. That evening.
Dr. DeRosa examined Plaintiff during infirmary rounds, and
observed that Plaintiff had started Cipro, an antibiotic, on
the previous day. Id. at 74. Dr. DeRosa saw
increased wound drainage and some improvement in the
gastrocnemius muscle, a muscle in the calf, possibly due to
the Cipro. Id. The culture report indicated E coli
and pseudomonas. both of which are sensitive to Cipro.
Id. Dr. DeRosa reported that Dr. Atnfu "did
telemed at 1 pm and picuture [sic] taken of wound so he could
communicate with DR (sic) Krishnaswammy. Apparently pt is to
go to BSH [Bon Secours Hospital] for surgical debridement
since tendon infection can be bad due to poor blood supple
[sic]." Id. DeRosa indicated that there may be
difficulty transporting Plaintiff at that time, but the
scheduler would try to arrange for custody staff to transfer
Plaintiff to the BSD early in the morning. Id.; FCF
No. 9-3 at 12 nn25 & 26.
21. 2015. Plaintiff was transported to Bon Secours Hospital
for surgical debridement of the wound. ECF No. 9-5 ¶ 12.
Dr. Druckman attests the procedure was indicated due to risks
inherent in a tendon infection due to low blood supply to the
tendons. Id. Plaintiff returned to the MCIH
infirmary the same day. ECF No. 9-4 at 75-77. Kathleen
McCauley, RN provided skilled nursing care to Plaintiff upon
his return, id. McCauley indicated the anticipated
PICC line was not inserted but ...