United States District Court, D. Maryland
K. Bredar Chief Judge
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,
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.” 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.
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.
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.
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
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.
alleged by Curtis, the referral to an ENT was denied sometime
in October of 2015, 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.
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.
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