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Pevia v. Wexford Health Resources, Inc.

United States District Court, D. Maryland

February 15, 2019

WEXFORD HEALTH SOURCES, INC., et al., Defendants


          Ellen L. Hollander United States District Judge

         Donald Pevia, a self-represented Maryland prisoner confined at the North Branch Correctional Institution (“NBCI”), filed suit under 42 U.S.C. § 1983 against Wexford Health Sources, Inc. (“Wexford”) and Ali Yahya, M.D. ECF 1. He alleges the denial of constitutionally adequate medical care. Id.

         Pending is a renewed motion to dismiss or, in the alternative, for summary judgment filed by Wexford and Yahya. ECF 29.[1] It is supported by a memorandum (ECF 29-3) (collectively, the “Motion”) and exhibits. Plaintiff opposes the Motion (ECF 31; ECF 37) and submitted exhibits. Defendants filed a reply. ECF 33.

         No hearing is necessary to resolve the motion. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, defendants' Motion, construed as one for summary judgment, shall be granted.

         I. Factual Background


         Plaintiff explains that in 2006, before his incarceration, he injured his knee playing basketball, suffering a dislocation, fracture, and torn ligaments. ECF 1 at 3. He claims that the torn ligaments caused his knee to “constantly slip[] out of place.” According to plaintiff, between 2013 and 2016, he “has complained about his knee.” Id. Plaintiff alleges that in February 2013, he was seen by medical staff at NBCI due to his complaints that his knee “constantly slipp[ed] out of place and swell[ed] to the size of a softball.” Id. Plaintiff states that an x-ray was ordered and, on an unspecified date, he was provided a steroid injection. Id.

         In June of 2016, plaintiff's knee again slipped out of place and “swelled up.” Id. He was seen by RNP Krista Swann. Id. at 4. X-rays were ordered, which showed that plaintiff's knee had multiple bone spurs and that the space within his knee was decreased. Id. There were also three “large lumps” on his knee. Id. Pain medication was prescribed. Id.

         A request was made for plaintiff to be seen by an orthopedist. However, it was denied by Wexford's review process. Id. at 5. Instead, on September 15, 2016, it was recommended that plaintiff undergo a steroid injection. Id. Plaintiff was advised that only Dr. Yahya could override the decision. Id.

         Plaintiff saw Dr. Yahya for the injection on October 29, 2016. Id. Plaintiff states that Yahya advised him that the referral to an orthopedist was likely denied because plaintiff could still walk. Id. at 6. Plaintiff asked if Dr. Yahya could order the consultation but he said, “no.” Id. Yahya provided the injection (id. at 6-7) and ultimately plaintiff developed an infection at the injection site, which required additional treatment. Id. at 7-8. Another request for plaintiff to be seen by an orthopedist was submitted in November of 2016. Id. at 8. Plaintiff complains that knee surgery should have been provided.


         In support of their Motion, defendants submitted various exhibits, including the affidavits of Robustiano Barrera, M.D. and Asresahegn Getachew, M.D., and relevant portions of plaintiff's medical records from February 26, 2013 through February 2, 2018. ECF 15-4 (medical records); ECF 15-5 (Barrera Affidavit); ECF 29-4 (medical records); ECF 29-5 (Getachew Affidavit).

         Plaintiff's medical records reflect that he has a history significant for Hepatitis C Virus, hypertension, shoulder pain/dislocation, and left knee pain. ECF 29-5, ¶ 3. Relevant to the allegations raised in this case, on February 26, 2013, plaintiff was evaluated by Colin Ottey, M.D., due to plaintiff's complaints of sharp pain in his left knee. ECF 29-4 at 2. Plaintiff explained that he twisted his knee five days earlier. Id. His knee was swollen, exhibited a decreased range of motion, and tenderness over the medial aspect. Id. Plaintiff was prescribed Ibuprofen and Tylenol-codeine No. 3. Id. He was directed to elevate the knee and to use a wheelchair for one week. Id. at 3. Dr. Ottey also ordered an x-ray of the knee and directed plaintiff to follow up in two weeks. Id. The x-ray, taken on March 5, 2013, revealed mild degenerative changes in plaintiff's knee with no evidence of fracture, dislocation, or subluxation. Id. at 7.

         The following day, plaintiff submitted a sick call slip seeking the results of his x-ray, extra support for his knee, and renewal of his medications. ECF 29-4 at 8. Dr. Ottey examined plaintiff on March 9, 2013. Id. at 9. At that time, plaintiff reported the pain in his knee had improved, but remained swollen and stiff. Plaintiff also reported tingling in his toes when his leg hung from a seat. Id. Examination showed tenderness and moderate pain with motion. Dr. Ottey did not observe any swelling. Id. Plaintiff's prescription for Tylenol-codeine No. 3 was renewed and plaintiff was directed to return in two weeks. Id. at 9-10.

         On March 15, 2013, plaintiff was evaluated by Greg Flury, PA in the chronic care clinic. ECF 29-4 at 12. Flury noted that plaintiff was not due in the chronic care clinic at that time and would be rescheduled. He also noted that plaintiff “denie[d] current complaints” and described plaintiff as in no acute distress and walking unassisted with a normal gait. Id.

         Flury again evaluated plaintiff on March 25, 2013, in response to plaintiff's sick call complaining of knee pain. Id. at 13. Plaintiff advised Flury of his history of “knee pain due to previous t[reatment]” and denied any recent injury. Id. The pain increased with flexion. Id. Flury reviewed the recent x-rays which showed mild degenerative changes. Id. Flury also noted “osteochondral prominence of inferior left patellar pole and tibial tubercle. No. effusion. Test[ing] joint laxity negative.” Id. He prescribed Indomethacin and referred plaintiff for consideration of an injection to the left knee. Id. at 14.

         On April 30, 2013, plaintiff was seen by Renato Espina, M.D., who aspirated the knee and injected it with a steroid. ECF 29-4 at 15. Plaintiff tolerated the procedure well. Id.

         Although plaintiff was seen by medical providers over the next three years, he did not again complain of knee pain until February of 2016.[2] ECF 29-5, ¶ 6; ECF 29-4 at 16-20.

         On February 3, 2016, plaintiff was evaluated by Taylor Hershberger, RN for his complaint of left knee pain. ECF 29-4 at 23. Plaintiff told Hershberger that his “knee keeps slipping out of place which is caused from torn ligaments. I'm having severe pain in my knee. I'm requesting an MRI for possible surgery.” Id. Hershberger observed that plaintiff was able to complete the range of motion exercises and there was no swelling in the knee. He walked into the examination room with a steady gate and was able to get on and off the exam table without difficulty. He had a current prescription for Mobic and he was encouraged to complete stretching exercises and to apply warm/cool compresses as needed. Id. Approximately one week later, plaintiff submitted a sick call slip, asking to see the doctor and for an MRI, due to his knee continuing to slip out of place even when wearing his knee brace. Id. at 26. He submitted a second sick call slip the following week, complaining of sharp pain in his knee, which he attributed to the torn ligament and sought referral for an MRI. Id. at 27. He noted that he had already been provided an x-ray and cortisone shot and the knee brace did not sufficiently hold the knee in place. Id. He also requested renewal of his bottom bunk status. Id.

         On February 20, 2016, plaintiff was evaluated by Tammy Buser, RN. Id. at 28. Buser described plaintiff as walking with a steady gait but also as having poor range of motion in the knee and pain below the knee “cal.” Id. Plaintiff had active prescriptions for pain medications and his bottom bunk status was renewed. Id.

         In response to plaintiff's sick call slip dated June 11, 2016, asking to have his bottom bunk status renewed and to see medical regarding his knee (ECF 29-4 at 30), plaintiff was seen by Krista Bilak, RNP on June 14, 2016. Due to plaintiff's chronic knee and shoulder disorders she renewed his medical assignment to the bottom bunk. Id. at 31. Pevia was directed to follow up if his condition persisted or worsened. Id. at 32.

         On June 22, 2016, plaintiff was examined by Ricki Moyer, RN. ECF 29-4 at 34. Plaintiff advised that he had a torn medial tendon prior to coming to prison and that he had been treated with ice, elevation, and medication. He reported that “he was exercising and ‘felt something snap' and his knee is ‘messed up again'”. Id. Moyer observed that plaintiff's gait was independent and steady; his knee was moderately swollen; there was a bony prominence in the area of the patella; and he had scarring from possible surgery to the medial side of patella.[3] Id. He was directed to elevate the area and apply ice/cool compresses. Id. He had active analgesic pain prescriptions at that time. He was referred to the provider for further evaluation and treatment. Id. at 36.

         Kirsta Bilak, RNP evaluated plaintiff in the chronic care clinic on July 2, 2016. ECF 29-4 at 37. Relavant to his knee, she noted: “Pt has old injury to left knee in 2006-posterior spurring medial tibial plateau-fracture of medial tibia. Pt reinjured knee 1 week ago. Unable to place weight on left leg. Reports knee gives out and dislocates.” Id. at 38. She also observed that plaintiff's left knee was swollen and he experienced severe pain with motion. She wrote, “Pt appears deformed. Unable to palpate any area of the patella. Can not weight bear.” Id. His pain medication, including Mobic, Baclofen, Tramadol, and Tylenol-codeine No. 3, were continued. Bilak ordered an x-ray of plaintiff's knee and directed him to return in one week for follow-up. Id. at 38-39.

         Plaintiff returned to Bilak on July 13, 2016. ECF 29-4 at 40. The results of the x-ray showed “degenerative changes with reduced joint spacing and osteophytes.” Id. Bilak noted that plaintiff complained of worsening pain and that his knee was unstable, locked-up, and clicked with movement. Id. She also observed that plaintiff suffered from weak knee muscles and moderate pain with movement. Id. At that time, plaintiff was receiving pain medication and wearing a knee sleeve.

         Bilak requested referral of plaintiff to orthopedics. Id. at 40-41. However, on September 15, 2016, the request for orthopedic consult was denied, pursuant to Wexford's review process, in favor of a steroid injection. ECF 31-3 at 1.

         In August and September of 2016, plaintiff was seen by various medical providers regarding his dislocated shoulder. He did not express any concerns about his knee during those visits. ECF 29-4 at 42; ECF 15-4 at 15-18.

         Bilak again examined plaintiff in the chronic care clinic on October 6, 2016. As to his knee injury she noted that he suffered from chronic left knee pain and had an abnormal x-ray of the left knee. ECF 29-4 at 45. She observed that plaintiff walked with a limp and there was swelling of the left patella. Id. Plaintiff's pain medications were renewed, and an order was entered referring plaintiff to a provider regarding his left knee pain and to Dr. Yahya for an injection in the left knee. Id. at 46. On October 29, 2016, Dr. Yahya aspirated plaintiff's knee and injected steroids. ECF 15-4 at 23.

         Approximately one week later, Krista Bilak, RNP evaluated plaintiff. He reported worsening pain in his knee, as well as increased instability, locking, and clicking. Id. at 24. He also reported difficulty with climbing stairs and walking. Bilak noted that the x-rays showed degenerative changes with reduced joint space and osteophytes; the request for an orthopedic consult submitted in July had been denied in favor of steroidal injection which occurred; and plaintiff reported an increase in pain. Id. Additionally, he developed an infection at the injection site. Id. His medications were renewed, he was prescribed antibiotics, and he was referred for physical therapy. Id. at 25.

         Bilak also renewed the request that plaintiff be provided an orthopedic consult. Id. at 26-27. Notably, on November 17, 2016, the request was approved. Id. at 28. In the meantime, plaintiff continued to be seen by medical providers throughout November and December of 2016. Id. at 30-35.

         On December 29, 2016, plaintiff was examined by Roy Carls, M.D. Plaintiff told Carls that he dislocated his knee playing basketball ten years ago, with an additional history of a fracture medially on his knee. Throughout the years he had pain in his left knee and reported that he had been unable to participate in activities. He reported the knee felt unstable on a regular basis. ECF 15-4 at 35. After examining plaintiff, Carls noted that it was “[l]ikely he has soft tissue injury to his left knee which is chronic, possibly the medial collateral ligament and also the ACL. Likely he has a medial meniscus tear as well. He does have some accompanying arthritis as well.” Id. Carls ordered an MRI and directed plaintiff to follow-up with him after the MRI to discuss treatment options. Id.

         On January 18, 2017, Bilak submitted the request for the MRI ordered by Dr. Carls. Id. at 36-39. The request was approved a few days later, on January 26, 2017 (id. at 40), and ...

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