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Moyer v. Wexford Medical

United States District Court, D. Maryland, Southern Division

August 23, 2018

VERNON MOYER, Plaintiff,
v.
WEXFORD MEDICAL, Defendant.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE

         Pro se Plaintiff Vernon Moyer filed an action pursuant to 42 U.S.C. § 1983 alleging that he received inadequate medical treatment while in custody at Maryland Correctional Institute- Jessup (“MCIJ”). ECF No. 1. Defendant has filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. ECF No. 9. Although advised of his right to do so, ECF No. 10, Moyer has not filed a response to Defendant's dispositive Motion and the time to do so has expired. The matter is now ripe for review. The Court finds a hearing in these matters unnecessary. See Local Rule 105.6. For the reasons that follow, Defendant's Motion, construed as a Motion for Summary Judgment, is granted.

         I. BACKGROUND

         Moyer alleges that Defendant failed to provide adequate medical care in June of 2017 in response to him seeking treatment for pain in his right foot. ECF No. 1. Defendant submitted Moyer's medical records from the relevant time period and an affidavit from Dr. Sisay, a physician involved with Moyer's care. ECF Nos. 9-3; 9-4; 9-5. According to the medical records, Moyer suffers from lower back pain as a consequence of a car accident. ECF No. 9-4 at 2.[1] Notes from Moyer's chronic care visit on March 10, 2017 state that Moyer suffered from “moderate and aching” lower back pain which “radiates to the right buttock and right leg.” Id.

         On June 6, 2017, Moyer was seen by Nurse Practioner Yetunde Rotimi after placing a sick call. Rotimi's notes from the visit state:

[Moyer] presents today with pain in right lower extremity. Patient reports pain started 3 days [ago] and he is unable to ambulate[;] that the pain is mostly in his calf. Patient reports that the pain is very different from what he had before and the pain is increasing. Patient reports none of his medication relieves the pain and denies recent injury.

Id. at 7. The notes contain various medical observations following examination of Moyer's leg (e.g., “1䒱 edema and 2 pedal edema”; “Positive homan[;] Well's score of 3 for pain”). Id. In an affidavit to the Court, Sisay explains the significance of the observations:

Plaintiff's exam revealed 1 edema of his right lower extremity, 2 edema of his right foot, and leg swelling of 2 inches (Plaintiffs left leg was 13 inches in circumference and the right was 15 inches) and calf tenderness of moderate severity which resulted in a Well's score of 3. In addition, Plaintiff had positive Homan's sign strengthening the suspicion for deep venous thrombosis. There was no redness or discoloration noted and pulses in dorsalis pedis and posterior tibial sites were palpable. A well's score of 3 or higher suggests that DVT [deep vein thrombosis] is likely. . . . It is standard medical practice to undertake diagnostic ultrasound and subsequent management in all DVT likely patient with Well's score of 3 or higher. . . .
These above symptoms and signs presented features for high probability for the diagnosis of deep vein thrombosis, or blood clot, in Plaintiff's right leg. The report of “different” pain in the right leg of recent onset, swelling in one lower extremity and the foot, the positive Homan's sign, and the Well's score of 3 are all indications of a possible DVT. A DVT is a serious condition because if the blood clot breaks off and travels through the blood stream to the lungs it can block blood flow and cause a pulmonary embolism ("PE"). A PE is a serious medical emergency that can damage the lungs, other organs and potentially be lethal. The medical standard of care calls for immediate and aggressive treatment for a diagnosis of DVT.

ECF No. 9-5 at 3-4. Accordingly, Rotimi requested authorization for Moyer to receive an “ultrasound of the right lower extremity.” ECF No. 9-4 at 8. Sisay states that Moyer was “prescribed empiric dose of Lovenox twice daily for seven days for a presumptive diagnosis of DVT to thin the blood and help prevent the possible clot from enlarging and migrating to cause PE pending ultrasound result.” ECF No. 9-5 at 4; see also ECF No. 9-4 at 8. Moyer was also prescribed Tylenol as needed for pain management, instructed to discontinue certain medications that he was already taking, and was placed on various restrictions for a week to reduce the need to walk. ECF No. 9-4 at 8; ECF No. 9-5 at 4. Sisay avers that, in his opinion “to a reasonable degree of medical probability this was a reasonable treatment option for Plaintiff's condition.” ECF No. 9-5 at 4.

         On June 12, 2017, Moyer returned to the prison clinic unscheduled, reporting that he was still experiencing pain in his right leg and that the pain was preventing him from being able to sleep. ECF No. 9-4 at 9. Rotimi assessed his leg and observed no swelling, discoloration, or weakness. Moyer was given capsaicin for pain and advised that his ultrasound was scheduled for the following morning. Id.

         Notes from Moyer's June 14, 2017 visit state that he was “seen post ultrasound, he reported that he was clear, and informed that he has no DVT during U/S. No result available with patient.” Id. at 11. Lovenox was discontinued “based on verbal report from patient” that he did not have DVT. Id. Sisay avers that:

[t]reatment with Lovenox can present with a number of unwanted side-effects, including but not limited to unusual bleeding in any part of the body such as bleeding gums, coughing up blood, black or bloody stool, difficulty breathing or swallowing, dizziness, headache, and nausea. Plaintiff did not present with any of these side-effects subsequent to receiving Lovenox. Lovenox was very unlikely to have affected Plaintiff's back pain condition. The course ...

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