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Graves v. Wexford Health Sources, Inc.

United States District Court, D. Maryland

July 17, 2019




         Plaintiff George Graves, who is incarcerated in Maryland Correctional Institution Jessup (MCIJ) and proceeding without an attorney, filed a 42 U.S.C. § 1983 complaint in this Court, alleging that Defendants Dr. Yonas Sisay, M.D. and Wexford Health Sources, Inc.[1] negligently injured him when Dr. Sisay used the “wrong size tool” for a surgical procedure. ECF No. 1. Pending is Defendants' Motion to Dismiss or for Summary Judgment, ECF No. 9, which the parties fully briefed, ECF Nos. 9-3, 13, 14. Plaintiff also has filed an unauthorized surreply.[2] ECF No. 15. A hearing is not necessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons that follow, Defendants' motion, construed as a Motion for Summary Judgment, shall be granted.


          In his verified Complaint, Mr. Graves asserts that he filed a sick call request seeking medical attention for irregularity in skin coloring on his left elbow, right knee, and lower left leg. Compl. 4. Dr. Sisay examined Mr. Graves and determined the skin irregularities required a biopsy. Id. According to Mr. Graves, biopsies for inmates at MCIJ are normally done at the Jessup Regional Hospital, but in his case Dr. Sisay “decided to perform the biopsy himself.” Id. He states that Dr. Sisay did not have the right size tool to perform the biopsy, but he went forward with it anyway using a tool that was one-inch in size. Id. Mr. Graves asserts that the biopsy left a deep puncture wound on his left leg and damaged a blood vessel, causing excessive bleeding, which, according to Mr. Graves, Dr. Sisay used a “blowtorch” to try to stop. Id. He repeats some of this history in his opposition and also insists that, based on the surgical notes of Dr. Saleem, the doctor who ultimately performed the biopsy, the “proper size should have been 5c (sic) by 4cm lesion.” Pl.'s Opp'n 2.

         After the unsuccessful biopsy, Dr. Sisay referred Mr. Graves to the Jessup Regional Hospital for a “biopsy extraction.” Compl. 4. But, according to Mr. Graves, Dr. Saleem informed him that he could not perform the biopsy due to the damage caused by Dr. Sisay's attempt and that Mr. Graves would have to wait for three weeks to have the procedure performed. Id. Mr. Graves states that, because of “Dr. Sisay[‘s] negligence of performing the biopsy operation without the proper size tool, ” he has suffered “permanent damage[] to [his] left leg” involving “severe[] pain and swelling.” Id. As relief, Mr. Graves seeks damages of one million dollars. Id.

         Defendants attached medical records, ECF No. 9-4, and an Affidavit from Dr. Sisay, ECF No. 9-5, to their dispositive motion. This evidence tells a very different story.

         On January 6, 2016, Dr. Sisay performed a “small 2mm punch biopsy” on Mr. Graves at MCIJ. Sisay Aff. ¶¶ 5, 7; Med. Recs. 3-4. A “punch biopsy of the skin is a biopsy . . . performed by using . . . an instrument for cutting and removing a small, tube-shaped piece of skin tissue and some underlying tissue.” Sisay Aff. ¶ 7. It “is a minor surgical procedure which is routinely performed by primary care physicians . . . done in any physician's office.” Id.; see also Id. at 7, Illus. 2. The biopsy did not result in a capture of an adequate sample of tissue due to the condition of Mr. Graves's skin. Id. ¶ 9. The bleeding that the biopsy caused could not be controlled through direct pressure and required electrocautery of the wound. Med. Recs. 3-4; Sisay Aff. ¶ 9. Contrary to Mr. Graves's description of a “blow torch, ” electrocauterization is a commonly used surgical tool in cases where bleeding needs to be controlled. See Sisay Aff. 7, Illus. 3. Dr. Sisay then referred Mr. Graves to a surgeon for a skin biopsy. Id. ¶ 10.

         Dr. Mohammad Saleem saw Mr. Graves at Jessup Regional Hospital five days later on January 11, 2016, and discussed an excisional biopsy with him and informed him of the risks involved with the procedure. Med. Recs. 5; Sisay Aff. ¶ 11. Mr. Graves declined to have the procedure done at that time and it was scheduled for the following week. Med. Recs. 5; Sisay Aff. ¶ 11. Dr. Saleem performed the biopsy on January 18, 2016, removing a “5cm by 4cm lesion” from Mr. Graves's leg. Sisay Aff. ¶ 12; Med. Recs. 7. The wound was closed by sutures and pain medication was prescribed. Med. Recs. 7; Sisay Aff. ¶ 12.

         Dr. Sisay saw Mr. Graves again two days later, and the surgical wound showed no discharge or active bleeding. Med. Recs. 11-12. Mr. Graves complained about pain at the site of the wound so Dr. Sisay changed his prescription for Tylenol #3 to three times daily. Id. Mr. Graves later was assessed as having a “slow healing ulcer” complicated by “venous stasis and venous insufficiency, contact dermatitis and post-operative infection.” Sisay Aff. ¶ 14.

         Dr. Sisay explained:

The vascularity and bleeding noted during the punch biopsy was related to plaintiff's stasis dermatitis. The lack of intact skin to send to the laboratory for examination was a result of scaly and friable nature of the lichen simplex chronica.[3]
Plaintiff's slowly healing wound that developed following plaintiff's second minor surgery was similar to a venous stasis ulcer. A stasis ulcer is a breakdown of skin caused by fluid build up in the skin from poor vein function (venous insufficiency). Fluid leads from veins in to skin and surrounding tissue when the blood backs up rather than returning to the heart through veins. By their nature, stasis ulcers typically heal very slowly over many months or even years.

Sisay Aff. ¶¶ 18, 19.

         Standard ...

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