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Farmer v. Wexford Health Services, Inc.

United States District Court, D. Maryland

December 13, 2017



          Paul W. Grimm United States District Judge

         Defendants Wexford Health Sources, Inc., Mofikpara Wright, M.D., Muleta Obsu, M.D., Bolaji Onabajo, M.D., Jonathan Thompson, M.D., and Rebecca Barnhart, R.N., move to dismiss or in the alternative for summary judgment in response to this civil rights complaint. ECF No. 21. Plaintiff Jeff Farmer opposes the motion. ECF No. 33. Defendants filed a Reply. ECF No. 36. Also pending are Defendants' Motion for Protective Order (ECF No. 37) and Plaintiff's Motions for Temporary Injunction (ECF No. 38) and for an Extension of Time to file a Class Action (ECF No. 41). No hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow Defendants' motion, construed as a Motion for Summary Judgment, is granted in part and denied in part. Defendants' Motion for Protective Order shall be denied in part and Plaintiff's Motions for Injunctive relief and to file a class action shall be denied. Defendants shall file their answers on or before January 5, 2018.


         Plaintiff Jeff Farmer is an inmate committed to the custody of the Maryland Department of Public Safety and Correctional Services and currently confined at Eastern Correctional Institution (ECI).[2] Farmer alleges he has been denied back surgery and effective pain management pending the surgery; his prescription for pain medication was reduced to one-third of his previous dosage for non-medical reasons; his allergy medication was changed to something less effective; and he has not received treatment for a shoulder injury sustained during a fall from a prison van. Compl. 3, ECF No. 1. Farmer claims that he has moderate and severe disc herniation, spinal stenosis and broken pieces of bone in his lower back (lumbar spine at levels L4, L5, and S1). Id. at 4. He states that prior to his current incarceration he was scheduled for surgery and claims he is entitled to receive that surgery (known as kyphoplasty) while he is incarcerated. Farmer explains he is experiencing such severe pain that he has difficulties sleeping and continued denial of the surgery violates his rights under the Eighth Amendment. Id. The specific claims he raises regarding his care are set forth below.

         Pain Medication

          Farmer claims that his Neurontin dosage was reduced to one-third of his previous dosage for no justifiable medical reason; rather, it was done by Dr. Obsu in retaliation for administrative remedy procedure complaints (“ARPs”) Farmer filed regarding medical care. Compl. 3. Farmer alleges that recent blood tests did not show a valid reason for the cut in pain medication. Id.

         Defendants do not deny decreasing the dosage of Farmer's Neurontin and explain that the dosage initially prescribed to Farmer was too high. Wright Aff. ¶¶ 5-7, ECF No. 21-5. Dr. Wright describes the purpose and effects of Neurontin (a.k.a., Gabapentin), a gabapentinoid. Id. He states that medications like Neurontin “are widely used in neurology, psychiatry, and primary healthcare” for the treatment of “neuropathic pain, fibromyalgia and postherpetic neuralgia.” Id. It is “thought to possess GABA-mimetic properties which have direct and indirect effects on the brain's dopamine ‘reward' system.” Id. “Neurontin has been regularly prescribed with positive result in the treatment of patients with chronic pain and in the management of patients for opioid withdrawal.” Id.

         Dr. Wright also provides information regarding the dosage for Neurontin and states that the “FDA recommended maximum adult dosage is 2400-3600 mg per day.” Id. at ¶ 7. When dosages exceed the recommended dosage, Neurontin is “reported to cause sedative as well as dissociative/psychedelic effects.” Id. Additionally, at higher than therapeutic dosages, drugs like Neurontin have a higher rate of addictiveness. Id. Further, in patients “with a history of polypharmacy and drug abuse” there is “an increased risk of addiction to [Neurontin's] dopamine ‘reward' effect resulting in a need for increasing the medications recommended dosage level beyond the therapeutic dose over time to receive the same effect.” Id. Conversely, at therapeutic levels, Neurontin has a low rate of addiction making it a good option for pain management in the prison environment. Id. ¶ 8. An increased dose of Neurontin does not provide additional clinical benefits as the rate of absorption drops with higher dosages (e.g., “a 900 mg dose will be absorbed [at a rate of] 60%, a 2400 mg dose provides a 34% absorption [rate].”). Id. Side effects such as “dizziness, somnolence, [3] headache, [4] diarrhea, confusion, nausea, and peripheral edema” increase at higher dosages.

         Farmer was prescribed 800 mg of Neurontin, two tablets twice daily between April 13, 2016 through August 13, 2016. Id. ¶ 9. Farmer was also receiving: 800 mg of Ibuprofen as needed three times a day; Excedrin migraine; 50 mg of Ultram[5] two times a day; and 350 mg of Soma[6] one tablet twice per day. Id. On July 15, 2016, when Dr. Wright saw Farmer at Dorsey Run Correctional Facility (“DRCF”), he reviewed the medications Farmer was receiving and determined that the amount of Neurontin he was receiving was too high, given all the other medications he was taking. Id. ¶ 10. Dr. Wright changed the prescription to 800 mg of Neurontin, one tablet twice daily. Id. ¶ 11.

         Dr. Wright explains that Neurontin is a “non-formulary medication” at DRCF, meaning it takes a period of time to process the request for the drug and at times the request is “disapproved.” Id. With those factors in mind, Dr. Wright wrote orders “to discontinue [Farmer's] existing 800 mg Gabapentin, 2 tablets twice daily if the new order for 800 mg, 1 tablet twice daily was approved.” Id. An error was made, however, and Farmer's prescription order was “transcribed as ‘Gabapentin 800 mg take two by mouth three times per day, discontinue the old order for Neurontin, if this order is approved.'” Id. Based on that erroneous order, Farmer was given 4800 mg per day, a dose that Dr. Wright states was “supratherapeutic and not intended.” Id.

         Farmer continued to receive the incorrect dosage until October 24, 2016, when Dr. Obsu discontinued it and prescribed 800 mg, one tablet twice daily. Id. ¶ 14. Farmer's other prescriptions for Soma and Ultram were unchanged. Id. Prior to Dr. Obsu changing the prescription, Dr. Syed Rizvi noted the excessive dosage of Neurontin during an August 3, 2016 chronic care clinic visit with Farmer. Id. ¶ 12. Dr. Rizvi indicated his intention to follow up with Dr. Wright regarding the prescription and continued it in the interim. Id. Although Farmer was seen on August 22, 2016, for his shoulder pain, his medications were not reviewed at that time. Id. ¶ 13. It is this change to the prescribed Neurontin upon which Farmer bases his claim against Dr. Obsu. See Compl.

         Farmer complained about the change in dosage on April 6, 2017, when he was seen by Dr. Thompson at Maryland Correctional Training Center (MCTC) and informed the doctor he needed 800 mg of Neurontin three times a day. Farmer Med. R. 50, ECF No. 21-4. Dr. Thompson explained to Farmer that “institutional policy was to issue medications twice daily, and it would not be changed for [Farmer].” Id. Farmer's prescription for Neurontin provided for 2400 mg per day with two 600 mg tablets, twice a day. Id. Farmer's additional request for an increase in Tramadol was denied as it was not clinically indicated. Id.

         Allergy medication

         Farmer also claims that on October 25, 2016, Dr. Obsu changed his allergy medication “from Claritin back to Zyrtec (that I was on for many months and did not work either).” Compl. 4. Despite putting in sick call slips regarding the change in medication, Farmer states that he was not seen by a doctor until November 8, 2016. At that time, he was seen by Dr. Wright whom he claims “did absolutely nothing about my allergy medication.” Id. Farmer claims Dr. Wright told him he would contact Dr. Obsu to determine if there was a reason for the change in medication; however, when Farmer asked about it, the nurses told him there was nothing noted in his record. Id. Farmer opines that this is “the definition of deliberate indifference to my ailments.” Id. He claims he saw Dr. Obanajero on an unspecified date, and Farmer was told that his allergy medication would be changed, but as of January 24, 2017, no change had occurred. Id. at 5.

         Dr. Wright admits that Farmer was taking Zyrtec, but states that he had been prescribed that medication since April 13, 2016, and it was continued through August 3, 2016, when it was not renewed. Wright Aff. ¶ 16. The Zyrtec prescription was renewed on October 24, 2016, as Farmer “had not submitted any complaints that [it] was not effective.” Id. However, Dr. Wright initially states that Farmer complained that Zyrtec was ineffective and that his prescription was changed to Aprodine on February 10, 2017, “in response to Plaintiff's complaints.” Id. Wright concludes that it is his “opinion to a reasonable degree of medical probability” that the change to Aprodine “was an appropriate medication change for [Farmer's] allergic rhinitis.” Id.

         Back Injury and Surgery

         Farmer states that the condition of his back requires surgery which should be performed during his incarceration so he will not have to miss work when he returns home. He claims that surgery was recommended prior to his incarceration. Compl. 3-4.

         Defendants do not directly address Farmer's claim that he is entitled to back surgery, but provide verified medical records that make mention of two previous imaging results of Farmer's lumbar spine. Farmer Med. R. 1. As early as September 30, 2014, Dr. Ben Oteyza noted that Farmer had a history of back pain and that MRI reports regarding the condition of Farmer's back were conflicting. Id. Oteyza observed that “[p]ersonal opinion is that this patient is not suffering the magnitude of discomfort that he claims. May need a good, thorough orthopedic evaluation.” Id. Despite that observation, Oteyza did not order a referral at that time, but instructed a “follow up if condition worsens or no improvement within 14 days.” Id. at 2. When Oteyza saw Farmer again on October 23, 2014, and Farmer asked for a referral, the referral was made. Id. at 3. That referral was “declined” following collegiate review. Id. at 10.

         The first of the MRI reports referenced, dated September 1, 2008, indicated that Farmer had a “large left paramedian disk herniation at ¶ 5-S1 . . . [m]oderate central disk herniation at L-4-5.” Id. (Nov. 16, 2015 Provider Visit). The second MRI report, dated November 14, 2013, is noted as showing

[m]arked improvement in the large left paracentral disk herniation L5-S1 since the study of 9/1/2008. There remains a small left apracentral disk protrusion minimally affecting the left S1 nerve root . . . . Mild spinal stenosis L3-4 appearing since previous study . . . secondary to broad-based central disk protrusion. Mild central protrusion of the L4-5 disk unchanged.

Id. The noted purpose of Farmer's November 16, 2015 medical exam was for review of his record for an orthopedic referral. Id. It is noted that the referral was declined and that Farmer was referred for physical therapy (PT) which he had begun receiving on July 10, 2015.[7] Id. Farmer was complaining of chronic low back pain “with intermittent paresthesia[8] and left leg weakness” at that time. Id.

         On December 28, 2015, Farmer was seen by Dr. Jason Clem and Dr. Getachew, via telemed regarding whether neurosurgery for his back was necessary. Id. at 15. During the examination “he was able to touch his toes with ease, bend laterally, and bend minimally to back, no pain.” Id. It was further noted that Farmer reported “walking over a mile on [a] regular basis without issue.” Id. Clem and Getachew attempted to explain to Farmer that, given his “good function he would not be [a] surgical candidate” but Farmer focused instead on the fact he was not receiving narcotic pain relief as he was prior to incarceration. Id. Upon Dr. Getachew's suggestion, Farmer's prescription for Ultram was increased and Farmer was assured that Ultram is an opiate. Id. Farmer was also referred to psychology and his “drug seeking behavior” was noted. Id.

         On February 11, 2016, Farmer was seen for “continued chronic back and shoulder pain” and reported “that he had fallen out of the top bunk while he was trying to get out of bed” because “his leg ‘gave out.'” Id. at 17. The fall occurred on January 18, 2016, and Farmer reported that since the fall he was unable to perform PT exercises; he had last received PT on January 22, 2016. Id. The medical director, who is not named in the record submitted, was consulted regarding further PT sessions and Farmer was instead “encouraged to work on exercises and stretching exercises as he is able to slowly regain flexibility and range of motion.” Id. At that time, Farmer had received 12 PT sessions and a “formal consult” was “not placed at this time.” Id.

         On April 13, 2016, when Farmer was seen for pain management, the two MRI reports from 2008 and 2013 were still the only reports being relied upon for an assessment of Farmer's lumbar spine. Id. at 20. The same record notes that the plan of care[9] was to “[i]ncrease Tramadol from 50 mg BID to 100 mg BID” and there was improvement noted with that increase, but Farmer reported that he “still has significant low back pain that radiates down the left leg.” Id. Despite the noted improvement, Farmer's Tramadol prescription was changed upon renewal to “50 mg BID on 4/1/16 without provider visit, ” causing Farmer's pain to increase. Id. It is noted that Farmer “[s]till wants to consider corrective surgery” but reportedly was considering delaying surgery until after his release so that “he can consult with surgeon of his own choosing.” Id.

         Farmer does not appear to have had further testing done to determine the source of his chronic back pain. A record dated February 10, 2017, reports that Farmer has suffered from lower back pain since 2003, from “lifting and hitting his back against the corner of a bench.” Id. at 45. Farmer reported that the pain has gotten worse “with associated numbness in the [leg]” and that “he fell last week from his [leg] giving out.” Id. It is noted that Farmer has no history of incontinence and does not use a cane, walker or wheelchair. Id. The physical exam that was provided during this visit revealed “no areas of swelling or redness” and Farmer's gait was described as normal. Id. Because his back pain was worsening, a consultation with an orthopedic doctor, Lawrence Manning, MD, was requested. Id. 46.

         Farmer was seen by Dr. Manning on March 7, 2017, who noted that Farmer required “lumbar MRI scan asap.” Id. at 48. Manning further noted that Farmer should return with the results of that scan. Id. The consultation for the recommended MRI was not generated until April 6, 2017, almost one month after Dr. Manning saw Farmer. Id. at 50-51. There is no indication in the records provided that Farmer was provided with an MRI of his lumbar spine, the results shown, or whether surgery is indicated by his condition.

         Shoulder ...

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