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Kerstetter v. Matera

United States District Court, D. Maryland

December 4, 2017

DANIEL KERSTETTER, #438048 Plaintiff
v.
DR. PAUL MATERA Defendants

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.

         Daniel Kerstetter, a self-represented litigant formerly incarcerated at the Eastern Correctional Institution in Westover, Maryland (“ECI”), filed a civil rights complaint under 42 U.S.C. § 1983, seeking unspecified money damages and injunctive relief mandating that he be provided appropriate medical care. Kerstetter alleges that a physician employed by Wexford Health Source, Inc. (“Wexford”), Paul Matera, M.D., was deliberately indifferent to his medical needs in violation of the Eighth Amendment by failing to treat adequately his ventral hernias and pancreatic mass and provide appropriate pain relief. ECF No. 1.

         The court earlier stated that the claims against Defendant Wexford would be dismissed on March 20, 2017. ECF No. 7. Defendant Matera seeks to dismiss the case or, alternatively, moves for summary judgment. ECF No. 14. Kerstetter opposes the dispositive motion (ECF No. 16), and moves for appointment of counsel.[1] ECF No. 17. Matera has filed a Reply.[2] ECF No. 18. After review of the papers filed, the court finds a hearing on the pending matters unnecessary. See Local Rule 105.6 (D. Md. 2016).

         Standard of Review

         Because matters outside the pleadings are presented in Defendant's dispositive motion, it is considered a motion for summary judgment. Fed.R.Civ.P. 12(d). Summary judgment is governed by Fed.R.Civ.P. 56(a) which provides that:

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

         The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

         “The party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court should “view the evidence in the light most favorable to . . . the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witness' credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court must, however, also abide by the “affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).

         Background

         Kerstetter is in his mid-fifties and suffers from diabetes and ventral hernias.[3] ECF No. 14-4, pp. 1, 11.[4] On May 21, 2015, he received an intake examination by Physician's Assistant (“PA”) Peter Stanford. Kerstetter, who reported three prior hernia repairs, was positive for an abdominal mass, had a large, tender, reducible incisional hernia in the central right incision area near a femoral aortic graph, and wore a hernia belt. Id., pp. 1-4.

         On August 10, 2015, Kerstetter submitted a sick call slip complaining of stomach pain due to his incisional hernia and his job assignment. Id., p.5. Two weeks later, on August 26, 2015, he was seen by Dr. Matera, who noted his large recurrent ventral hernia. Id., pp. 6-7. Kerstetter reported no recent blood in his stool, but complained of intermittent, crampy abdominal pain in addition to hernia pain. Id. Kerstetter had a binder (compression wrap) but had not been using it due to increased pain. He also stated that although he had a light duty kitchen job, he recently had been assigned tasks that involved lifting. Dr. Matera agreed the binder should not be used and Kerstetter should not perform heavy lifting. Id., p. 7. Dr. Matera noted that a GI (gastrointestinal) consult would likely be needed, and a CT scan and hernia surgery may be necessary. Id., p. 6.

         A consult was submitted for gastroenterology, surgery, CT scan, and a teleconference to determine a treatment plan. Id., p. 8. Because Kerstetter had reported blood in his stool in the prior month, guaiac stool tests[5] were performed, one of which was positive. Kerstetter had crampy abdominal pain without nausea or vomiting, and his vitals were stable. Id. Matera wanted to assess whether Kerstetter had a vascular perfusion component to the bleeding, [6] i.e., intermittent ischemic bowel stemming from his previous aortic graft, or hernia-induced intermittent strangulation causing pain and/or bleeding. Id.

         On September 10, 2015, Kerstetter was seen by Dr. Matera for a scheduled provider visit, and asked about the status of his consult. Dr. Matera indicated it was pending University of Maryland collegial discussion. Kerstetter reported that he had lost his job, and agreed with Dr. Matera that he should only work a light duty job. The hernia was stable, and Kerstetter was prescribed two 325 mg. Tylenol, twice daily. Id., pp. 9-10.

         On October 15, 2015, Ruth Pinkney, P.A. examined Kerstetter and noted an extremely large and painful ventral hernia and abdominal tenderness in the right lower quadrant (RLQ). Although a consult had been previously sent in September, another was submitted that day. Id., pp. 11-13.

         On October 16, 2015, Kerstetter was seen by Jason Clem, M.D., and a gastroenterologist, Dr. Abdi, at a telemed conference. Dr. Abdi assessed a lower GI bleed, possibly anorectal and not diverticulosis, with a lesser suspicion for aortoenteric fistula and/or ischemia.[7] Id. Dr. Abdi recommended a CT scan of the abdomen, and a consult for the CT was submitted. On October 21, 2015, the CT consult was approved. Id., pp. 14-20.

         On November 9, 2015, Kerstetter underwent the CT scan, which revealed a previous ventral hernia repair using mesh; a large hernia inferior to the mesh to the right of midline containing small bowel and mesentery; a smaller hernia more superiorly containing an anterior portion of transverse; a “somewhat concerning” 3cm low-density mass in the pancreatic body (malignancy not excluded); a patent (obvious) aortobifemoral bypass graft; and no other evidence of active disease or malignancy in the abdomen or pelvis. Id., pp. 21-23. Kerstetter reviewed the results with PA Pinkney on December 4, 2015, and a follow-up referral to GI was submitted. Id., pp. 24-25.

         On December 21, 2015, Kerstetter submitted a sick call to obtain an update as to the progress of his testing. On December 30, 2015, he submitted a sick call to renew medications. Id., pp. 26-27. That same day, December 30, 2015, he was seen by Dr. Matera for a chronic care visit. Id., pp. 28-29. Vital signs, weight, and lab results were normal, and Kerstetter reported Tylenol was only somewhat effective, so he was taking his cell mate's Indocin[8] and wearing his binder. Dr. Matera prescribed Indomethacin[9] in addition to his Tylenol. Id. On January 14, 2016, Kerstetter submitted a sick call slip to renew medications. Id., p. 30. On January 20, 2016, during a scheduled provider visit with PA Bruce Ford, Kerstetter asked about the follow-up on his GI consult. Ford sent an email to see if the CT scan results had been sent to Dr. Abdi, and what recommendations were available. Id., pp. 31-32. The next day, January 21, 2016, Jason Clem, M.D. entered a note that after consultation regarding the CT scan results. Dr. Abdi wanted Kerstetter to receive an endoscopic ultrasound with biopsy to identity the pancreatic mass. A consult was placed for the endoscopic ultrasound with biopsy. Id., pp. 33-34. On January 27, 2016, endoscopic biopsy was approved. Id., p. 36. The biopsy was scheduled to be done in March by Dr. Darwin at the University of Maryland. Id.

         At a follow-up visit, Kerstetter stated Tylenol was not sufficient for his pain, which was worsening, and his abdominal binding was no longer holding its elasticity. It was recommended that abdominal measurements be taken at the next chronic care encounter to order a replacement binder, and the Tylenol prescription was increased to extra strength 500mg. Id., pp. 37-38.

         During a March 20, 2016, sick call visit, Kerstetter could not push his lower right quadrant hernia back in, and reported pain at the level of 10/10. Dr. Clem ordered Kerstetter be given 200 mg. of Motrin and returned to his housing unit. If pain persisted, further evaluation would be provided. Id., pp. 39-41. That same day, March 20, 2016, Kerstetter's hernia was evaluated by Ben Oteyza, M.D., and he was sent by ambulance to the Peninsula Regional Medical Center (“PRMC”) emergency room to evaluate and treat the irreducible hernia. Id., pp. 42-44.

         Kerstetter was admitted to PRMC for hernia surgery. His discharge diagnosis was: 1) incarcerated hernia[10] status post exploratory laparotomy[11] with small bowel resection repair of incisional hematoma with biological mesh; 2) diabetes; 3) hospital acquired pneumonia; 4) probable chronic obstructive pulmonary disease; and 5) a stable pancreatic mass. Id., pp. 40-42. Five days of Levaquin[12] was prescribed. Id., pp. 43-44.

         Upon returning to ECI on April 4, 2016, Kerstetter was seen by Dr. Clem and admitted to the prison infirmary. His Levaquin prescription was continued and a consult was placed for follow-up. Id., p. 45. Skilled nursing care was provided in ...


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