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Toomer v. Wexford Health Care Inc.

United States District Court, D. Maryland

June 5, 2019

DERRICK TOOMER, Plaintiff
v.
WEXFORD HEALTH CARE, INC., Defendant

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.

         In response to this court's Order to Show Cause, counsel for the Division of Corrections filed a response indicating that Plaintiff, an inmate at Roxbury Correctional Institution (RCI), is not entitled to a preliminary injunction because his medical needs are being addressed. ECF No. 4.[1] After seeking an extension of time, which was granted, Plaintiff filed a response. ECF No. 8. For the reasons that follow, Plaintiff's request for preliminary injunctive relief will be denied and this case closed.

         In his unverified complaint solely seeking injunctive relief, Plaintiff alleged that in 2010 he was stabbed multiple times in his right forearm and hand resulting in his undergoing surgery at Union Memorial Hospital. ECF No. 1, p. 1. After his discharge, he was directed to return in 7-10 days to begin rehabilitation of his injury but Wexford Health Source, Inc. refused to pay for the rehabilitation at Union Memorial Hospital and Plaintiff did not receive rehabilitation for 18 months resulting in his hand “heal[ing] wrong” and partial paralysis.[2] Id., p. 2.

         Plaintiff states that he was prescribed Neurontin for over 7 years and that, on an unspecified date, Wexford Health Care, Inc. stopped the Neurontin and gave him Cymbalta instead. ECF No. 1, p. 2. He claims that Cymbalta caused him to suffer nightmares of such intensity that he awoke punching the wall in a fight with an imaginary foe. Id. He states that Cymbalta was “[n]ot a[n] ideal medication to give [him] especially after being diagnosed with P.T.S.D. by 4 different board certified psychiatrist[s and it was also n]ot a good idea to stop [his] psychological medication, ‘Prozac' to give [him] Elavil to replace [his] pain medication Neurontin.” Id., p. 2. Plaintiff explains that he lives with horrible pain and suffers from the sensation of crawling up and down his forearm. Id. Plaintiff denies being an opioid or heroin addict. Id., pp. 2, 4.

         Additionally, Plaintiff states that on May 15, 2013, he passed out during outside recreation. ECF No. 1, p. 3. The following morning he noticed his entire foot was black. An x-ray was taken and a hair-line fracture discovered on his left foot. Dr. Joubert saw Plaintiff on May 19, 2013, and put his foot in a half-cast, half-splint and advised Plaintiff that he needed to see a doctor, but he did not see a doctor until July 19, 2013. Id. Plaintiff states that he has a metal rod in his fibula and a metal plate over his ankle.[3] ECF No. 1, p. 3. He states that he suffers from deep pain and the inside of his bones ache. Id.

         Plaintiff states that he is not getting any pain relief and that the pain he is suffering from is affecting his eating, sleeping, and mental health.[4] ECF No. 1, p. 6. He indicates that he was scheduled to see a pain management team but that it did not happen. Id.

         As relief, Plaintiff seeks: 1) consultation with the pain management team; 2) to be provided pain medication; 3) disclosure of “the rule that allowed, whomever to stop all of my medication, who what, when, and why, why, why?” and 4) determination of whether the pharmacist is licensed. ECF No. 1, p. 6.

         In response, counsel provides 105 pages of Plaintiff's medical records (ECF 4-1) and the affidavit of Erwin Aldana, M.D. ECF No. 4-2. The exhibits demonstrate that Plaintiff is a chronic care patient who is regularly evaluated by physicians and other health care providers in order to manage his chronic medical conditions which include diabetes mellitus, hypertension, obesity, and chronic pain syndrome related to his 2010 right forearm surgery and 2013 left ankle fracture and ligament tear. ECF No. 4-2, ¶¶4, 5. Dr. Aldana explains in his affidavit that pain management for chronic pain is individualized and as such the cause and type of the pain must be determined in order that the most appropriate treatment can be selected. ECF No. 4-2, ¶ 6. Plaintiff suffers from both neuropathic (often caused by “nerve damage or a malfunctioning nervous system”) and musculoskeletal pain (“often caused by injury to the bones, joints muscles, tendons, ligaments, or nerves” or by overuse). Id., ¶¶6, 7.

         In light of the age of Plaintiff's injuries and the chronic nature of his complaints, Dr. Aldana opines that it is likely Plaintiff will suffer life-long pain. Therefore, the goal of his pain management plan is to manage the pain in order to “prevent interference with physical function including Plaintiff's regular activities of daily living.” Id., ¶ 7.

         In order to manage Plaintiff's pain he has been prescribed a number of different “pain medications including non-steroidal anti-inflammatory medications, non-opioid analgesics, opioid analgesics, and anti-neuropathic pain medications (anti-depressants and anti-epileptic medications). ECF No. 4-2, ¶ 8.

         Dr. Aldena explains that the Department of Public Safety and Correctional Services' State Medical Director has identified Neurontin/Gabapentin (approved by the FDA as an anticonvulsant for seizure conditions and to treat neuropathic pain caused by herpes virus or shingles) and Tramadol/Ultram (a synthetic opioid) “as medications with patterns of over use and abuse.” ECF No. 4-2, ¶¶ 9, 10. The patterns of abuse include hoarding of these medications by inmates for improper use due to their narcotic, euphoric, and sedative like effect, or for trade to other inmates for misuse in exchange for secondary benefits. Id. To address these issues with regard to Neurontin, DPSCS has sought to eliminate its use for non-FDA approved conditions barring exceptional circumstances. Id., ¶ 10. Neurontin is not FDA approved for any of Plaintiff's diagnosed conditions. Id.

         On October 25, 2017, Plaintiff was seen in the chronic care clinic where he reported that he was doing well “except for pain.” ECF No. 4-1, p. 1. At that time Plaintiff was prescribed Tylenol Extra Strength (ES), Tramadol, and Neurontin. Id., p. 2. The doctor recommended switching Plaintiff from Neurontin to amitriptyline (Elavil) and a new prescription was entered with Plaintiff's prescriptions for Tramadol and Tylenol ES continued. Id., p. 2.

         On December 15, 2017, Plaintiff was seen for a regular appointment in the chronic care clinic. He reported chronic pain in his left foot. ECF 4-1, p. 6. His pain medications were reviewed, his prescription for amitriptyline discontinued, and Cymbalta prescribed. Id., p. 8. Plaintiff's prescriptions for Tramadol and Tylenol ES were continued. Id. Thereafter, Plaintiff underwent an EKG to assess his cardiac function before continuing with amitriptyline. Id., pp. 12, 14. On January 8, 2018, the results of the EKG were reviewed. They were abnormal but Plaintiff was asymptomatic. Id., p. 14. His prescriptions for Extra Strength Tylenol, Cymbalta, and Tramadol for pain management were continued. Plaintiff did not complain at that time of ineffective pain control or of any negative side effects from Cymbalta. Id.

         On February 13, 2018, Plaintiff was seen for follow up regarding his diabetic condition. It was noted that the EKG had been abnormal but that the abnormal reading was likely due to the leads being placed on his leg improperly. ECF 4-1, p. 15. Another EKG was ordered with directives to avoid placing the lead on his leg with the metal implant. Plaintiff's ...


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