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J.F. v. Correct Care Solutions, LLC

United States District Court, D. Maryland, Southern Division

March 6, 2019

J.F. and D.F., minors, by their guardians and next friends, CRAIG AND DEBORAH ANN BENTON, et al., Plaintiffs,
CORRECT CARE SOLUTIONS, LLC, et al., Defendants.



         This case arises from the death of Melissa Mae Benton at the St. Mary's County Detention Center (SMCDC) on October 13, 2013. Ms. Benton's parents, both individually and on behalf of her minor children J.F. and D.F, Ms. Benton's Estate, and Ms. Benton's adult child Brittany Fleshman filed a lawsuit against the companies and individuals that provided care at the Detention Center on June 17, 2016, alleging violations of the Eighth and Fourteenth Amendment and state law negligence and wrongful death claims. Defendants Correct Care Solutions, LLC (“Correct Care”), Conmed Healthcare Management, Inc. (“Conmed”), Ashley Elizabeth Sampson, Latoya Beaumont, Tara King, Vabian Paden, Nancy Sidorowicz, Penny King, James Cawley, and Kristy Randolph filed a Motion to Strike Expert Cause of Death Opinion of Marc F. Stern, MD, MPH, and a Motion for Summary Judgment on that basis. ECF No. 83. Defendants Correct Care and Conmed filed a separate Motion for Summary Judgment only as to the constitutional claims. ECF No. 81-1. Defendants Penny King, Beaumont, Randolph, Paden, Tara King, and Sidorowicz filed Motions for Summary Judgment as to all claims, ECF Nos. 81-2, 81-3, 81-4, 81-5, 81-6, 81-7. Defendants Sampson and Cawley filed Motions for Summary Judgment only as to the constitutional claims. ECF Nos. 81-8, 81-9.

         A hearing was held on January 11, 2019. For the following reasons, the Motions to Strike, ECF No. 80, 83, are denied. The Motion for Summary Judgment, ECF No. 81, is granted in part and denied in part.[1]

         I. BACKGROUND

         A. Ms. Benton's Death

         On October 8, 2013, Ms. Benton was sentenced to prison, taken into custody, and temporarily placed at SMCDC ahead of her pending transfer to a state facility. ECF Nos. 92-2, 92-3, 92-4. Conmed Healthcare Management (“Conmed”) had been purchased by Correct Care Solutions (“Correct Care”) in 2012. ECF No. 92-5 at 8. In 2014, Conmed contracted with SMCDC to provide onsite healthcare. ECF No. 94-1.

         Upon arrival at SMCDC on October 8, Ms. Benton was given an intake examination by Defendant Penny King, a Certified Nursing Assistant (“CNA”) and Certified Medication Technician (“CMT”) who worked for Conmed. ECF No. 92-7 at 7, 92-9 at 8-9. During this examination, Ms. Benton disclosed use of Xanax, heroin as recently as two weeks before her incarceration, and oxycodone as recently as the day before her incarceration. ECF No. 92-7 at 8. Penny King also included instructions to place Ms. Benton on a protocol for opiate and benozodiazepine detoxification (“detox”). Id. at 6, 8. A Physician's Order for opioid withdrawal was generated for Ms. Benton, on which Defendants Nancy Sidorowicz, a physician's assistant, and Melissa Ann Henderson, a registered nurse, are listed as Ms. Benton's clinicians. Id. at 4. The order provides twenty separate instructions, including requirements to give Ms. Benton Phenergan for vomiting, Imodium for abdominal cramps and diarrhea, Clonidine for blood pressure at specific blood pressure readings, and vitamins. Id. Defendant Dr. Vabian Lewitt, M.D.'s name appears on Ms. Benton's prescription, which also included a tapering dose of Librium, which controls the symptoms of withdrawal. Id. at 13-14. The order also called for recording Ms. Benton's food intake and checking her vital signs three times a day, with instructions to call 911 if her oxygen saturation dropped past 92%. ECF No. 92-7 at 4.

         Ms. Benton was placed in a diagnostic holding and medical observation unit. ECF No. 92-10 at 2. CNAs Tara King and James Cawley were on post when Ms. Benton's scheduled dose of Librium on October 8 at 9:00pm was recorded on the Medication Administration Record (“MAR”) as “missed.” ECF No. 81-10 at 6. Her scheduled dose of Librium on October 9 at 2:00am was recorded as “no show.” Id. at 18. On the morning of October 9, Defendant PA Sidorowicz conducted a physical examination of Ms. Benton, noting that she had been taking 4-5 Xanax per day. Id. at 6. Sidorowicz also recorded a blood pressure of 148/112 and a pulse of 112, vital signs Dr. Stern called “abnormal” in his expert report. Id. at 6-7. CNA Penny King conducted a detox check that afternoon at 2:10pm. Id. at 8. Though Ms. Benton was due her fourth dose of Librium at this time, Defendant CNA Kristy Randolph withheld the dose due to a blood pressure of 119/90. Id. On October 9 at 9:00pm, Ms. Benton's scheduled dose of Librium is shown as “missed” while CNAs Randolph and Beaumont were on post. Id. at 18. On October 10, CNA Penny King was to deliver Plaintiff another dose of Librium, but it is recorded on the MAR as “refused.” Id. at 19. Under the heading of “reason, ” the CNA wrote “BP [blood pressure].” Id.

         Ms. Benton's October 11 8:00am dose of Librium was recorded as “held” for “BP.” Id. That evening, CNA Beaumont performed a detox check at 10:01pm. Id. at 9. Ms. Benton had begun to show multiple symptoms of withdrawal, including elevated blood pressure, tremors, agitation, vomiting, and abdominal cramps. Id. CNA Beaumont contacted RN Henderson and recorded that Ms. Benton was given Phenergan and fluids, though the MAR contains no confirmation that Phenergan was actually administered on October 11. Id; ECF No. 92-7 at 16-17. Ms. Benton's blood pressure was above the threshold at which the physician's order called for administering Clonidine, but she was not given a dose of the medication at this time. ECF No. 81-10 at 9.

         By the morning of October 12, Ms. Benton was described by the occupant of a neighboring cell as “deathly sick, ” “hugging the toilet, ” “complaining of being dizzy and feeling feint, ” and “begging for medication.” Id. at 10. At 5:05am, after complaining of chest pains, she was taken to the Medical Unit where she was evaluated by CNA Beaumont. Id. Her blood pressure was 148/101 and her pulse was 48 (described in Dr. Stern's report as “dangerously slow”). Id. CNA Beaumont, having written “deferred to RN” on the Flow Sheet, advised Ms. Benton to “relax and not drink fluids in large gulps but to take sips to stay hydrated.” Id. She also wrote, “Imodium and Phenergen orders renewed” on the Flow Sheet, but did not record that these drugs were actually given at that time. ECF No. 92-7 at 9, 16-17. At 6:30am, CNA Beaumont conducted a detox check and documented blood pressure of 167/92 and a pulse of 36, a rate Dr. Stern called “very dangerously slow.” Id. at 21; ECF No. 81-10 at 12. On the detox sheet, Beaumont wrote “Fluids encouraged. Phenergan given, ” and that she contacted the RN. ECF No. 92-7 at 21. The MAR contains no record that Phenergan was actually administered until 6:13pm that evening. Id. at 16-17.

         CNA Beaumont's record of deferring to RN Henderson both in the evening of October 11 and twice on the morning of October 12 is corroborated neither by Henderson's statement to the Sheriff's Department investigator, in which RN Henderson stated only that she received “one late night call from a medical technician, ” nor by RN Henderson's later statement in her deposition stating that she only recalled being called once in the morning. ECF No. 81-10 at 11.

         At 10:10pm the evening of October 12, CNA Sampson evaluated Ms. Benton for head pain after a fall. Id. at 13. CNA Sampson performed a skin turgor test to evaluate Ms. Benton for dehydration, and, finding no significant signs of dehydration, denied Ms. Benton's request to go to the hospital. Id. Correctional officers recorded that Ms. Benton refused all three meals that day, as she was unable to hold anything down. ECF No. 92-7 at 19. CNA Sampson did not administer Phenergan in response to the vomiting. ECF No. 81-10 at 20.

         On October 13, just after 6:30am, a correctional officer notified CNA Cawley of Ms. Benton's persistent vomiting. Id. at 13. CNA Cawley did not administer Phenergan in response to this report. Id. at 20. A correctional officer testified that by around 10:00am, Ms. Benton was a “different person, ” as she was weak and unsteady and “had a blank stare and did not seem to even see the medic within her cell, ” and the officer recalled informing CNA Cawley about her confusion. ECF No. 81-10 at 13-14. CNA Cawley also testified that Ms. Benton had a “slightly altered mental status, ” as though “time and place wasn't present.” Id. at 14. A correctional officer recalled that when she asked Ms. Benton for a Gatorade bottle, Ms. Benton instead handed her a shoe. Id. at 15. By 11:19am, a correctional officer was reporting that Ms. Benton still could not hold down fluids, but she was still not given any Phenergan. Id. at 20. At 1:16pm, CNA Cawley filed a “Form 35” to order Ms. Benton held in her cell due to “her being unsteady on her feet during detox.” Id.

         At 3:25pm, CNA Cawley performed Ms. Benton's final detox check. Id. at 15. At that check, Ms. Benton “seemed more alert, ” and her vitals were within normal limits. Id. at 16. Her blood pressure had dropped to 106/68. Id. She was, however, still vomiting. Id. at 20. CNA Cawley took no further action. Id. At 5:58pm, Ms. Benton was found unresponsive in her cell. Id. She was pronounced dead at the hospital across the street from the detention center. Id. For the second day in a row, she had refused all meals. ECF No. 92-7 at 19. In the end, staff failed to administer six of Ms. Benton's fourteen scheduled doses of Librium. ECF No. 81-10 at 18. She also missed doses of Thiamine and vitamins. Id. at 14.

         B. Dr. Marc F. Stern's Expert Testimony

         Plaintiffs offer a report from Dr. Marc F. Stern in support of their allegations. See ECF No. 81-10. Dr. Stern is a board-certified internist specializing in correctional health care. Id. at 1. From 2002-2008, he served as the Assistant Secretary for Health Care in the Washington State Department of Corrections. ECF No. 90-4 ¶ 4. He has extensive experience directly and indirectly supervising, hiring, firing, and teaching RNs, PAs, and primary care physicians. ECF No. 81-10 at 2. He also volunteers as a clinician at the Olympia Free Clinic. ECF No. 90-4 ¶ 5.

         Dr. Stern testified that he consistently reads peer-reviewed publications in general medicine and other medical literature; he himself peer reviews four to six draft medical manuscripts a year. Id. He also testified that he keeps himself “current on the medical literature with respect to withdrawal from opiates and benzodiazepines.” Id. Earlier in his career, from 1982 to 1998, he “regularly participated in mortality and morbidity reviews” and, as a clinician, has signed dearth certifications and “trained physician trainees in the proper completion of death certifications.” Id. ¶ 6.

         In his report, Dr. Stern opines that “Ms. Benton died of dehydration due to some combination of acute withdrawal from benzodiazepines and opiates.” ECF No. 81-10 at 23. He initially concluded that, “[w]hile this is the most likely diagnosis, there is also good evidence supporting that Ms. Benton died of the sole effects of benzodiazepine withdrawal.” Id. He later supplemented his report to state that he believes it is “at least as likely” that Ms. Benton died from withdrawal as it is that she died from dehydration. Id. at 36. He concedes that it is possible, as the Medical Examiner found, that Ms. Benton died instead of a cardiac arrhythmia. Id. at 24.

         Regardless of the precise “mechanism(s) [that] played the most prominent role in Ms. Benton's death, ” Dr. Stern contends that Conmed's staff committed a lengthy list of errors that, in his opinion, were causally related to Ms. Benton's death. Id. These errors include: Dr. Paden's failure to notice the missed doses of Librium on the MAR and rectify the failure to deliver the medication; the missed or withheld doses of Librium by CNAs Tara King, Penny King, Randolph, and Cawley; the failure of CNAs Sampson, Beaumont, and Cawley to administer Phenergan; CNA Beaumont's treatment during Ms. Benton's 5:05pm visit to the Medical Center on 10/12; the treatment given during the 10/12 6:30pm detox check, whether that treatment was determined by RN Henderson or CNA Beaumont; the failure of Conmed staff to respond to Ms. Benton's refusal to eat for the final 36 hours of her life; CNA Sampson's treatment during the 10/12 10:10pm detox check; CNA Cawley's treatment in response to the report of Ms. Benton's changed mental state at 10:00am on 10/13; CNA Cawley's failure to respond to Ms. Benton's unsteadiness on her feet and altered mental state the morning of 10/13; and CNA Cawley's treatment in response to Ms. Benton's drop in blood pressure and changed mental state at 3:25pm on 10/13. Id. at 6-16, 31. In sum, Dr. Stern believes that treating Ms. Benton's vomiting, diarrhea, elevated blood pressure, and delirium would have eliminated both her dehydration and her cardiac stress factors, and likely prevented her death. Id. at 24.

         Dr. Stern also criticizes Conmed's policies and procedures as causative of Ms. Benton's death. He explains that Conmed's CNAs customarily made treatment decisions beyond their legal and safe scope of practice: for instance, by choosing to withhold Librium due to blood pressure despite no physician having made such an order or by ignoring the thresholds specified in the physician orders to trigger the administration of Clonidine based on their own “clinical judgment.” Id. at 19-21. Though CNAs train for 100 hours and RNs train for two to four years, Dr. Stern contends that the circumstances surrounding Ms. Benton's death are “replete with examples of complex nursing activities that required nursing judgment-something reserved for the RN-but that were performed by CNAs at SMCDC and, further, activities which, based on the totality of evidence in this case, have all become routine parts of the CNAs' job duties.” Id. at 27. For instance, Conmed's Rule 30(b)(6) witness conceded that its CNAs made clinical judgments as to whether a blood pressure reading was abnormal enough to prompt a call to a nurse or physician. Id. at 28. Dr. Stern argues that this problem was exacerbated in this case by the absence of a withdrawal protocol for benzodiazepine; Conmed staff, including CNAs, instead relied upon an order set for opiate withdrawal or upon their own judgment. Id. at 24-25. Dr. Stern also asserts that the Opiate Protocol, Conmed's Flow Sheet utilized as part of the Opiate Protocol, and Conmed's Intoxication and Withdrawal Policy are so “woefully inadequate” as to be causally linked to the death of Ms. Benton. Id. at 7.

         Dr. Stern further criticizes RN Henderson, who supervised the CNAs, for being aware of and condoning the CNAs' custom of using their own judgment to make nursing assessments. Id. at 29. He similarly faults Dr. Paden who, despite his role as attending physician and facility medical director, had only “minimal” involvement in overseeing medical care and conceded that the “nurses there, they basically ran the . . . show. And basically I was there basically (sic) as the physician because they needed someone with credentials in order to - for the, for the process to move forward.” Id. at 30.


         A. Daubert Motion

         Trial judges have a responsibility to “ensure that any and all scientific testimony . . . is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993). Because expert witnesses “have the potential to ‘be both powerful and quite misleading' . . . judges must conduct ‘a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.'” Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (quoting Daubert, 509 U.S. at 592-93, 595). A party seeking admission of expert testimony bears the burden of establishing admissibility by a preponderance of the evidence. Id.

         B. Summary Judgment

         Under Fed.R.Civ.P. 56, summary judgment is appropriate only when the Court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The burden is on the moving party to demonstrate that there exists no genuine dispute of material fact. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). To defeat the motion, the nonmoving party must submit evidence showing facts sufficient for a fair-minded jury to reasonably return a verdict for that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).


         A. Daubert Motion

         The Federal Rules of Evidence provide that:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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