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Lloyd v. Glennon

United States District Court, D. Maryland

August 6, 2018

GARRETT GLENNON et al., Defendants



         Anthony Lloyd, a self-represented Maryland prisoner, filed a civil rights complaint alleging that he was illegally detained in a State correctional facility when he injured his right triceps after falling from his bunk. He alleges he received constitutionally inadequate medical care for his injury. ECF 6. Now pending is a Motion to Dismiss or, in the Alternative, for Summary Judgment filed by defendants Contah Nimely, Lori Slavick, and Wexford Health Source, Inc. ECF 45, 47.[1] Plaintiff has responded (ECF 53, 55)[2] and defendants have replied (ECF 54). Upon review of the papers filed, the court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, defendants' dispositive motion will be GRANTED.[3]

         I. Factual Background

         The plaintiff's claims have been previously summarized as follows:

Plaintiff indicates that in 2009 he was convicted of bank robbery and related offenses in the Circuit Court for Baltimore County. He was sentenced to 25 years' incarceration without the possibility of parole. On February 23, 2015, his petition for post-conviction relief was granted and his conviction vacated. ECF 1, p. 7.
On May 21, 2015, three months after he was granted post-conviction relief, he alleges he improperly remained confined in state prison at the Maryland Correctional Training Center (“MCTC”). Id. He states that his post-conviction counsel contacted Deputy State's Attorney Glennon requesting that he be transferred to the County Detention Center. Id., p. 8. Plaintiff indicates his belief that since he was then awaiting trial it was improper to continue to house him in the Division of Correction. Id.
While housed at MCTC, he fell from his bunk sustaining a serious injury to his right elbow. Id. Plaintiff states that he was “falsely diagnosed with a bone spur: and later taken to a local hospital where he was diagnosed with a torn tricep [sic] and blood clot.” ECF 6, p. 3. He states that it took five months to have his injury treated and he underwent two surgeries to repair his arm. The first was performed on March 1, 2016, at Bon Secours hospital. ECF 1, p. 8. Plaintiff states his surgery was “botched.” Id. Plaintiff indicates he was denied proper post-operative medical care by the named medical defendants who failed to follow the discharge instructions of his surgeon. Id., p. 8. Rather, Physician Assistant Lori Slavick removed the stitches. ECF 6, p. 3. The removal of the stitches/staples left a hole in his right elbow. He claims that as a result he has suffered excruciating pain, draining, infection, and burning from the ulcer that developed at the surgical site. ECF 1, pp. 8-9. He claims he was tortured by the physical therapist[4] and received second degree burns on his biceps. ECF 6, p. 3. He also claims he was burned by Dr. Saleem Muhammed. Id.
Also pending is plaintiff's “Supplement to Amended Complaint.” ECF 39.[5] Plaintiff indicates that on June 29, 2017, he was returned to Bon Secours Hospital for additional surgery to treat his elbow injury. He states that once again his post-operative orders were not followed and that Contah Nimely continued to provide follow up care, despite the conflict of interest that exists due to plaintiff's suing Nimely in this case. Additionally, plaintiff alleges that he was directed to return to the surgeon two weeks after his surgery but was not returned. Instead, staff at the prison removed his stitches. Plaintiff maintains that this is the same type of conduct that caused him injury after his initial surgery to repair his elbow. He further maintains that his follow-up treatment with the surgeon was scheduled for August, weeks after the surgeon directed he return for follow-up care. Id.

ECF 41 at pp. 2-4.

         B. Medical Defendants' Response

         In support of their motion, defendants have submitted various exhibits, including the affidavit of Robustiano Barrera, M.D. (ECF 27-5), and 139 pages of plaintiff's medical records relative to the initial injury and first surgery (ECF 27-4), as well as Contah Nimely, M.D.'s affidavit (ECF 47)[6] and an additional 184 pages of plaintiff's medical records detailing his care after the initial operation and including his second surgery and post-operative care. ECF 45-4.

         Barrera avers that plaintiff has a medical history significant for hyperlipidemia, asthma, olecranon bursitis, and a torn right triceps tendon. ECF 27-5, ¶ 4. Barrera indicates that “[t]he olecranon bursa is a small fluid filled sac that decreases friction between tissues and bony structures in the elbow.” Id., ¶ 5. It is described as very thin and when struck or injured can fill with fluid or blood and become enlarged and painful. Id. If the bursa is repeatedly irritated or injured, its walls may thicken and develop irregular areas of scar tissue that are often mistaken for bone chips or spurs. Id. Barrera avers that calcium may collect inside the bursa. Id. Olecranon bursitis may be treated with rest, application of ice, compression, elevation, or aspiration by a doctor. Id.

         In August of 2015, due to complaints of pain and swelling, plaintiff's right olecranon bursa was aspirated. ECF 27-5, ¶ 6; ECF 27-4 at p. 1. The aspirated fluid was cultured and the culture was negative. Id.

         Thereafter, plaintiff continued to complain of pain in his right elbow. ECF 27-5, ¶ 7; ECF 27-4 at p. 1. On October 27, 2015, he was evaluated by Physician's Assistant Murray who assessed plaintiff as having a palpable bone spur on the olecranon process that caused irritation to his skin. Id. Plaintiff reported pain when he flexed or extended his elbow. Id. An x-ray was ordered but did not show a spur. Id. Murray consulted with MCTC medical director Dr. Ottey who agreed to refer plaintiff to the onsite orthopedic doctor, Dr. Manning. Additional lab work and x-rays were also ordered. ECF 27-5, ¶ 7; ECF 27-4 at pp. 3-4. Barrera avers that “[a]lthough the x-ray tended to rule out a bone spur, the x-ray was [not] definitive of a diagnosis.” ECF 27-5, ¶ 7. Barrera further avers the course of treatment provided plaintiff at this point was not contraindicated whether or not plaintiff suffered from a bone spur, and that plaintiff did not suffer any medical consequences due to the bone spur diagnosis. Id.

         Plaintiff continued to complain of pain and swelling in his elbow. ECF 27-5, ¶ 8; ECF 27-4 at pp. 5-12. He was seen by nurses and mid-level providers to whom he expressed regular concern regarding the swelling in his elbow and reported that he was told it could be a sign of a blood clot. Id. Plaintiff was provided analgesic pain medication and educated about his condition. ECF 27-4 at pp. 5-12. Barrera avers that injury to the olecranon bursa commonly results in swelling and was likely the cause of the swelling. ECF 27-5, ¶ 8. He notes that plaintiff was never diagnosed as suffering from a blood clot. Id.

         On November 17, 2015, plaintiff injured his right upper arm getting out of bed. ECF 27-5, ¶ 9; ECF 27-5 at p. 13. He was seen on November 23, 2015, by P.A. Murray who described plaintiff as “report[ing] to the dispensary with color change, increasing pain, warmth, worsening swelling, and fluid moving up the arm.” Id. Dark blue bruising from below the elbow to 14 centimeters up the posterior biceps was observed. Plaintiff's upper arm and elbow were described as extremely tender to the touch and warm. Id. It was noted that plaintiff's recent x-ray of the elbow showed no fracture, dislocation, or subluxation and the alignment was anatomic and that he had been referred to the onsite orthopedist but had not yet been seen. ECF 27-4 at p. 13. Murray consulted with the Regional Medical Director about the possibility of a septic joint. ECF 27-5, ¶ 9; ECF 27-5 at p. 13. The Regional Medical Director advised Murray to consult with Dr. Atanfu about sending plaintiff to Meritus Medical Center (“MMC”) or Bon Secours Hospital for further evaluation. Id.

         That same day, plaintiff was sent to MMC and underwent a CAT scan, which revealed “diffusely edematous triceps tendon with associated joint effusion and olecranon bursitis.” ECF 27-5, ¶ 9; ECF 27-4 at p. 21. Plaintiff was diagnosed as suffering a right triceps tendon tear. He was directed to consult with an orthopedist for possible surgery and to follow up with an MRI. Id. Barrera avers that in his opinion to a reasonable degree of medical probability this was the appropriate treatment for plaintiff's November 17, 2015 injury. Id.

         Plaintiff returned to MCTC that day. ECF 27-5, ¶ 9; ECF 27-4 at p. 28. The recommendation for an MRI was noted. His prescription for a tapering dose of prednisone was continued and a consult to see Dr. Manning submitted. ECF 27-5, ¶ 10; ECF 27-4 at pp. 28-29. Plaintiff saw Dr. Manning on December 4, 2015. ECF 27-5, ¶ 10; ECF 27-4 at p. 30. His right elbow range of motion was described as full. Id. “[A] large area of echymosis about the medial distal half of the right arm” was noted. Minimal swelling of the elbow was also observed and a palpable defect above the right olecranon noted. An x-ray of undisclosed date showed a “tiny olecranon spur.” ECF 27-4 at p. 30. Plaintiff was provided a sling and an elbow sleeve and it was recommended that he be provided an urgent consult with an outside orthopedic doctor for surgical repair of the right triceps. Id. at pp. 30-32.

         Plaintiff was seen by Dr. Krishnaswamy on December 15, 2015, who indicated that plaintiff needed reconstruction of the triceps and it would be done “soon.” ECF 27-5, ¶ 11. On February 23, 2016, plaintiff underwent a preoperative examination in preparation for his triceps repair surgery (ECF 27-4 at ¶ 34-35), which occurred at Bon Secours Hospital on March 1, 2016. ECF 27-5, ¶ 13; ECF 27-4 at pp. 36-43.

         Plaintiff tolerated the procedure well and there were no complications. ECF 27-5, ¶ 13; ECF 27-4 at pp. 36-43. He returned to MCTC that day with a splint and a sling on his right arm. ECF 27-5, ¶ 13; ECF 27-4 at p. 44-45. It was noted that he could move all fingers on his right hand and his sensation was intact. His surgeon prescribed Cephalexin and Hydrocodone-acetaminophen. Id. He was cleared to return to his housing unit. Id. Barrera avers that in his opinion to a reasonable degree of medical probability this was the appropriate treatment for plaintiff's right tendon tear. ECF 27-5, ¶ 13.

         On March 23, 2016, Lori Slavick, P.A. removed plaintiff's staples during an unscheduled provider visit. ECF 27-5, ¶ 14; ECF 27-4 at p. 48-49. The staples were removed without incident and the area cleaned and an Ace wrap placed. Slavick noted that plaintiff was to follow up with Krishnaswamy as soon as possible. ECF 27-4 at p. 48. Barrera avers that, as a mid-level provider, Slavick was competent to remove the staples and was within her authority and medical judgment to decide to do so. ECF 27-5, ¶ 14. He ...

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