United States District Court, D. Maryland
W. GRIMM, UNITED STATES DISTRICT JUDGE
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. 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. 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.
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.
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.
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.
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.
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.
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.
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
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
Sisay Aff. ¶¶ 18, 19.