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Mickey v. Wexford

United States District Court, D. Maryland, Southern Division

March 22, 2017

EUGENE MICKEY III, #3038555, #417152 Plaintiff,
WEXFORD (STAFF at MCIH), et. al., [1] Defendants.


          GEORGE J. HAZEL United States District Judge.

         Eugene 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 No. 15.

         After 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.

         I. BACKGROUND

         On 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, [2]

         Plaintiff 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.

         Defendants 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.

         After 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.

         Plaintiff 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.

         On June 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.

         On July 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 34-37.

         On July 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.

         On July 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.

         On July 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.

         On July 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.

         On July 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.

         On July 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.

         On July 16. 2015. Defendant Sampong examined Plaintiff. Id. at 62. lie reported the wound was improving and recommended warm compresses. Id.

         On 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.

         On July 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.

         On July 19. 2015, Matthew Carpenter. P.A., examined Plaintiff. Id. at 70-71. Carpenter reported that Plaintiff was awaiting a PICC[3] 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.

         On July 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.

         On July 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 ...

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