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Curtis v. Wexford Health Sources, Inc.

United States District Court, D. Maryland

February 11, 2019



          James K. Bredar Chief Judge

         In response to this civil rights complaint raising claims of an Eighth Amendment violation, defendants Wexford Health Sources, Inc., Collin Ottey, M.D., and Krista Bilak, RNP, filed a motion to dismiss or for summary judgment. ECF 22, 23.[1] The motion is opposed by plaintiff. ECF 25. Plaintiff has also filed a renewed motion for admission (ECF 21), a motion for Rule 56(f) continuance to conduct discovery (ECF 26), and a motion to appoint counsel (ECF 27). No. hearing is necessary to determine the matters now pending before the Court. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, defendants' motion, construed as one for summary judgment, shall be granted and plaintiff's pending motions shall be denied.


         In his verified amended complaint, plaintiff Lamont Curtis states he was diagnosed with polyps on his vocal cord and larynx in 2000, a condition that required surgery by an Ear Nose and Throat (ENT) specialist several times during his confinement at Jessup Correctional Institution (JCI). In February of 2008, Curtis was transferred to North Branch Correctional Institution (NBCI), where he continued to experience problems with the polyps. He states that defendant Dr. Collin Ottey referred him for treatment by an ENT on an unspecified date. ECF 13 at p. 5.

         On May 18, 2012, Curtis submitted a sick call slip indicating that his referral to an ENT for surgery was delayed; asking how to file a complaint with the “Physician Board” because of the delay; and stating he needed to be seen by Dr. Ottey. ECF 13 at pp. 5-6 and ECF 13-5. Curtis also indicates in the same sick call slip that he saw an ENT at Bon Secours Hospital on March 13, 2012, where he was advised by Dr. Mumtaz that due to the breathing problems he was experiencing Curtis required surgery. ECF 13-5 at p. 2. Curtis further notes that he had been sent back to see Dr. Mumtaz on March 23, 2012, which he characterizes as a mistake because Mumtaz had already recommended surgery for him due to his difficulties breathing at night. Id.

         In a consultation report dated March 27, 2012, Dr. Mumtaz indicates that Curtis was advised that he has “a recurrence of the left vocal cord polyps and papillomas” that had not progressed to a size that obstructed his airway. ECF 13-2. Dr. Mumtaz “re-advised” Curtis to “have the papillomas removed” and indicated that the papillomas will keep coming back. Id. The only available treatment at Bon Secours, according to the report, is surgical removal of the papillomas, but Dr. Mumtaz indicated that there are “experimental treatments including antiviral injections” for treatment of recurrent polyps and papillomas. Id. The recommended surgery was performed on June 12, 2012. ECF 13 at p. 6.

         On August 14, 2012, Curtis was seen by Dr. Mumtaz for a post-surgical exam. ECF 13 at p. 7. Dr. Mumtaz indicated that Curtis was experiencing no post-surgical complications and there was no evidence of polyps or papillomas. ECF 13-2. The consultation report further indicates that during the surgical excision of the papillomas it was discovered Curtis had extensive subglotic papillomas that were also excised during surgery. Id. Dr. Mumtaz advised that Curtis would “need to be evaluated in three months and, depending on the recurrence rate, he may need laryngoscopic biopsy again.” Id.

         On December 23, 2012, Curtis filed another sick call slip indicating he had surgery on June 12, 2012, and he was concerned about missing follow-up appointments because he had been advised by Dr. Mumtaz that he needed to keep track of his breathing and progress. ECF 13 at p. 6; ECF 13-7.

         In August of 2015, Curtis began experiencing problems with hoarseness of his voice, shortness of breath, and throat pain. ECF 13 at p. 7. He submitted a sick call slip requesting to be seen and he was seen by Krista Bilak, RNP, who submitted a referral for Curtis to be seen by an ENT. Id. By September 1, 2015, Curtis's symptoms worsened. ECF 13 at p. 7.

         On October 30, 2015, Curtis received written notice from Krista Bilak that the request for an ENT consult had been denied. ECF 13-1. Bilak indicated that the denial indicated Curtis should continue receiving “conservative treatment” for 90 days and that she would follow up with Curtis in one month. Id. Curtis alleges that Dr. Ottey denied the request. ECF 13 at p. 7.

         Curtis claims that despite knowing his symptoms had worsened, Bilak and Ottey prescribed steroids, throat lozenges, and a soft diet, rather than sending him to see an ENT. ECF 13 at p. 8. He asserts that Bilak and Ottey knew the treatment they prescribed was “useless” and claims it was simply a delay tactic. Id. In support of his allegation, Curtis refers to Dr. Mumtaz's consultation report indicating that the only treatment for recurrent papillomas and polyps was surgical removal. Id., see also ECF 13-2.

         On December 8, 2015, Curtis was examined by Dr. Mumtaz. ECF 13-8. In his Consultation Report, Dr. Mumtaz indicates that Curtis was currently experiencing worsening hoarseness of his voice as well as respiratory problems and feeling “like his throat was closing up.” Id. at p. 1. The physical examination note indicates, however, that Curtis was “not having any airway problem.” Id. Dr. Mumtaz found that Curtis now had a papilloma of the right vocal cord and a smaller one on the left vocal cord and concluded that Curtis had “recurrent laryngeal papillomatosis.”[2] Id. at pp. 1-2. He recommended that Curtis undergo a “repeat microlaryngoscopy with removal of papilloma with coblation.” Id. at p. 2. Curtis claims that Dr. Ottey caused a delay in surgery being scheduled because he did not process the request with Bon Secours Hospital. ECF 13 at p. 8. This delay resulted in Dr. Mumtaz not performing the surgery. Id.

         Curtis states he did not receive the surgery recommended by Dr. Mumtaz until July 6, 2016, when ENT Dr. Elizabeth Guardini performed the surgery at University of Maryland Medical Center (UMMC). ECF 13 at p. 9. He further asserts that Dr. Ottey has denied Curtis access to follow-up examinations with an ENT since January 2014 and caused him to suffer for ten months (from September 1, 2015 to July 6, 2016) by denying him access to surgery. Id. Curtis states that during the ten-month delay he suffered from the progression of his condition, which caused hoarseness, shortness of breath, an inability to exercise due to labored breathing, pain, and discomfort. Id. at p. 11. Despite his worsening symptoms, Curtis alleges that no efforts, or inadequate efforts, were made to secure the needed surgery for his condition. Id. at pp. 11-12.

         Curtis claims that Wexford Health Source, Inc. (Wexford), the private healthcare provider under contract with the Maryland Division of Correction, “implemented corporate policies by which the treatment of individuals with serious medical conditions . . . was postponed, delayed, or denied.” ECF 13 at p. 10. He states that these policies, which “denied timely and appropriate access to licensed physicians, pain medication, and appropriate medical and surgical procedures and treatments, ” amount to deliberate indifference to his serious medical needs and resulted in the infliction of pain and mental anguish. Id. As relief, Curtis seeks monetary damages.

         Defendants admit there was a delay in providing Curtis with the surgery he required but state, via a declaration under oath by Dr. Asresahegn Getachew, that the delay was due to the fact that the surgery was scheduled to be performed at Bon Secours Hospital and had to be rescheduled at University of Maryland Medical System (UMMS). ECF 22-5 at pp. 3 & 4-5. Further, they assert the delay was two months long, not the ten months alleged by Curtis. Id. at pp. 4-5. They provide the following explanation regarding the period of time between September 21, 2015, the date Curtis began to complain of symptoms, and July 6, 2016, the date the surgery was provided.

         When Curtis initially complained on September 21, 2015, his presenting symptom was hoarseness without pain or difficulty swallowing. ECF 22-4 at p. 2; ECF 22-5 at p. 2, ¶ 7. On September 24, 2015, Ricki Moyer, RN, noted that Curtis was complaining of a sore throat and had a history of throat polyps; Curtis's vital signs were within normal limits. ECF 22-4 at p. 3. Moyer referred Curtis to a provider. Id. at p. 5. That referral took place on September 30, 2015, when Curtis was seen by Janette Clark, NP. ECF 22-4 at p. 6. Clark reviewed Curtis's case with the Regional Medical Director (RMD) and Curtis was prescribed an oral steroid, prednisone, and Curtis was provided throat lozenges. Id. at pp. 6-7. Clark also indicated that a referral to an ENT would be requested. Id. at p. 7.

         As alleged by Curtis, the referral to an ENT was denied sometime in October of 2015, [3]however, defendants assert the denial was due to the “minimal symptoms” Curtis was experiencing at the time. ECF 22-5 at p. 2, ¶ 7. The collegial review “proposed an alternative treatment plan of conservative therapy to include steroids for inflammation, throat lozenges and soft food” with a re-evaluation in 90 days. Id. Curtis continued to complain of worsening symptoms; on October 27, 2015, Curtis reported to Robert Claycomb, RN, that he was experiencing difficulty with swallowing and breathing. ECF 22-4 at p. 12. At that time, Curtis was receiving only throat lozenges and Claycomb apparently thought the referral to an ENT was still pending. Id. at pp. 12-13.

         On October 30, 2015, Curtis again reported that his symptoms were worsening when he was seen by defendant Krista Bilak, RNP, who noted that Curtis was experiencing shortness of breath when lying flat and described a feeling as if his throat was closing off. ECF 22-4 at p. 14. Bilak discussed the case with the Regional Medical Director and resubmitted the ENT consult request. Id. That request was approved on November 5, 2015. Id. at p. 18.

         On December 8, 2015, Curtis was seen at Bon Secours Hospital by Dr. Mumtaz for a laryngoscopy. ECF 22-5 at p. 3, ¶ 8. Mumtaz recommended surgical removal of the papillomas he found on Curtis's vocal cords and a consultation request for the surgery was submitted on December 10, 2015, by Renato Espina, M.D. ECF 22-4 at p. 23. Following his laryngoscopy, Curtis was admitted to the prison infirmary at Western Correctional Institution (WCI), where he was monitored and it ...

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