United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE.
response to this civil rights complaint raising claims of an
Eighth Amendment violation, defendants Wexford Health
Sources, Inc. (“Wexford”), Dr. Asresahegn
Getachew, and Dr. Mahboob Ashraf,  filed a motion to dismiss or
for summary judgment. ECF 18. The motion is opposed by
plaintiff. ECF 21. Defendants have filed a reply (ECF 24),
which plaintiff moves to strike. ECF 25. No. hearing is
necessary to determine the matters now pending before the
Court. See Local Rule 105.6 (D. Md. 2018). For the
reasons that follow, defendants' motion, construed as one
for summary judgment, shall be granted and plaintiff's
pending motion denied.
complaint, plaintiff Arnold Davis states that in 2013,
Wexford approved surgery for his hand, but the surgery was
unsuccessful and caused more nerve damage to plaintiff's
hand. ECF No. 1, p. 4.
March of 2015, Dr. Jackson, a hand specialist, performed
surgery on plaintiff's left hand to remove hardware.
Id., p. 3.
returned to Dr. Jackson on April 20, 2015, for a surgical
wound check and evaluation of flexor tendon reconstruction of
the left index finger. Id. During the consultation,
plaintiff and Dr. Jackson discussed additional surgeries to
repair the damaged tendon in plaintiff's left hand.
Id. Dr. Jackson advised plaintiff that she would try
to obtain the original note from the Eastern Shore Wicomico
County Hospital, and if she could not do so, she would
arrange for plaintiff to undergo “left hand exploration
with possible placement of hunter rods, with possible tendon
reconstruction with tendon graft.” Id.
Plaintiff states that the recommended treatment was urgent,
particularly in light of the earlier failed surgeries, but
Wexford failed to follow up regarding the consultation
reports for two years and ten months, despite plaintiff's
filing numerous sick call slips and complaints. Id.
states that he has been denied effective pain medication and
has not been prescribed any pain medication since December of
2017. ECF 1, p. 4.
claims his hand is disabled and that he is unable to write
with or otherwise use his hand. ECF 1, p. 4. He describes the
pain as a muscle being constantly flexed with no release and
periodically, throughout the day, the nerves are
“jumpy, ” causing his fingers to move
irregularly. Id. He also suffers from numbness and
loss of circulation in his left hand. Id.
indicates that Wexford is responsible for implementing and
adhering to policies and protocols relating to health care
services and the training of physicians, nurses, and other
health care providers. ECF 1, p. 2. He claims that Wexford
“chose to implement corporate policies by which the
treatment of prisoners with serious medical conditions such
as the plaintiff was delayed and denied.” Id.,
p. 5. He claims that those policies include denying plaintiff
access to licensed physicians, a hand specialist, physical
therapy, pain medication, appropriate and necessary
medical/surgical procedures, and treatment. Id.
alleges that Dr. Getachew is the Regional Director for
Wexford and is responsible for “(a) assigning the
appropriate health care providers to patients (b) insuring
complaints are addressed appropriately.” Id.,
p. 3. Plaintiff alleges that Dr. Getachew delayed and denied
plaintiff access to adequate medical care for his serious
injury, including access to licensed physicians, a hand
specialist, pain medication, and appropriate and necessary
procedures and treatments. Id, p. 5. Plaintiff
states that Dr. Ashraf was responsible for providing medical
care and treatment to plaintiff at North Branch Correctional
Institution (NBCI). Id., pp. 2, 5. As relief,
plaintiff seeks monetary damages.
Getachew avers that plaintiff's medical history is
significant for chronic left hand pain secondary to a gunshot
injury, allergic rhinitis, and asthma. ECF 18-5, ¶ 4.
medical records reflect that on January 2, 2015, plaintiff
was evaluated by Roy J. Carls, M.D. ECF 18-4, p. 2. Dr.
Carls's recount of plaintiff's medical history
indicates that plaintiff sustained a gunshot wound to his
left hand in 2007. Id. Afterward, plaintiff
underwent “several surgeries including a final
reduction internal fixation of bone grafting to his left hand
middle and ring finger metacarpals.” Id.
Plaintiff reported that he had some aching over the site with
occasional numbness, especially at night. He also lost active
flexion function of his index finger. Id.
Examination demonstrated that plaintiff had full passive
range of motion of all of his fingers, including his index
finger. Id. He did not have active flexion of his
index finger but did have active flexion of the other fingers
and thumb. Id. Dr. Carls noted that the issues with
plaintiff's left hand was due to “symptomatic
hardware” and there were signs of possible carpal
tunnel. Id. He noted that in his “opinion his
primary functional deficiency is his active flexion loss with
left index finger.” Id. Dr. Carls recommended
plaintiff be evaluated by a hand surgeon to consider a staged
procedure for tendon grafting and at the same time the
hardware could be removed. Id. Dr. Carls stated,
“[A]gain his primary deficiency is much more likely to
help him reconstructively would be the index finger tendon
and of course the hardware and even a carpal tunnel release
could be done at the same time.” Id.
February 10, 2015, plaintiff was examined by Emme Jackson,
M.D. ECF 18-4, p. 5. She recounted plaintiff's history of
gunshot wound in 2007 with bone grafting to his 4th and 5th
metacarpals in 2012. Id. In 2013, surgery was
attempted to remove the plate in plaintiff's hand due to
his report of pain, “however the surgeon did not have
the correct screwdriver at the time and the surgery was
aborted.” Id. At the time of Dr. Jackson's
exam, plaintiff continued to complain of pain at the plate
site. “He also had a flexor tendon injury to the index
finger which was planned to have a staged reconstruction,
however this has never been done.” Id.
Examination demonstrated that while plaintiff did not have
flexion of the index finger, he had full range of motion with
passive flexion. Id. There was scar tissue in the
palm, which was consistent with his complaint of numbness in
the index and long finger and was likely due to digital nerve
injury from the initial trauma. Id. The transverse
carpal ligament compression test was negative, and
plaintiff's thumb had normal sensation. Dr. Jackson
indicated that she did not feel that plaintiff had carpal
tunnel. Id. Rather, she assessed plaintiff as
suffering from two issues: “[t]he inability to flex the
index finger due to a tendon injury which would require a
tendon reconstruction with an interposition tendon graft
versus a hunter rod that is present in zone 2. He also has
painful hardware on the dorsal aspect of his hand overlying
the 4th and 5th metacarpals. The patient reports that the
hardware troubles him the most and he would like it removed
first.” Id., p. 6. Plaintiff was advised that
he could have both procedures at the same time, but he
indicated he wanted to proceed with the hardware removal
March 9, 2015, plaintiff underwent left hand surgery with Dr.
Jackson at Western Maryland Regional Medical Center to remove
the hardware. ECF 18-5, ¶ 5; ECF 18-4, p. 12. The
hardware was removed successfully, and plaintiff was
described as having tolerated the procedure very well.
Id. Dr. Jackson noted that plaintiff should return
for follow-up in two weeks. ECF 18-5, ¶ 6; ECF 18-4, p.
the surgery, plaintiff was seen by Renato Espina, M.D.,
during his 23-hour infirmary hold. ECF 18-5, ¶ 6; ECF
18-4, pp. 14-16. At that time, plaintiff complained of pain
as 7 on a 10-point scale. Id. He was also seen by
Delores Adams, R.N., who noted that plaintiff was able to
perform all activities of daily living. ECF 18-5, ¶ 7;
ECF 18-4, p. 17. During Nurse Adams's initial assessment
of plaintiff, he stated that he did not need pain medication.
ECF 18-4, p. 14. Later, plaintiff was found pounding on the
door and yelling that he needed pain medication. ECF 18-5,
¶ 7; ECF 18-4, p. 17. He was offered a Toradol
injection, but became loud and verbally abusive, accusing
staff of racism. Id. He requested Percocet, but had
an order for Toradol. Id. He also had orders for
Ultram and Baclofen, but the medications had not been
delivered from NBCI to WCI where plaintiff was then housed.
ECF 18-4, p. 17. Plaintiff was advised that the staff would
not enter as long has he continued yelling and pounding on
the door. ECF 18-5, ¶ 7; ECF 18-4, p. 17. Two hours and
20 minutes later, plaintiff agreed to the Toradol injection
and stated that it reduced his pain to 4 on a 10-point scale.
following day, plaintiff was evaluated by Dr. Colin Ottey.
ECF 18-5, ¶ 8; ECF 18-4, p. 21-22. Plaintiff had limited
range of motion in his fingers. No. drainage was observed. He
reported his pain was controlled by medication and was
discharged from the infirmary with a referral to see a
provider in three days. Id.
March 13, 2015, plaintiff was seen by Janette Clark, N.P. ECF
18-5, ¶ 9; ECF 18-4, pp. 23-24. At that time, the
dressing was removed, and Clark noted that the wound had mild
swelling, but the temperature was normal to the touch, there
was no drainage, the steri-strips were intact, and there was
no sign of infection. Id. Plaintiff was able to move
all of his fingers and reported that his pain was controlled
with Tramadol. Plaintiff was provided gauze and an ACE wrap.
was evaluated by Colin Ottey, M.D., on March 25, 2015. ECF
18-4, p. 25. At that time, plaintiff had decreased range of
motion in his left index finger and moderate pain with
motion. Id. Dr. Ottey noted that plaintiff was still
in need of the tendon repair and he would recommend surgical
follow-up. Id. He submitted the consultation request
for surgical follow-up on March 29, 2015. Id., p.
27. The request was approved on April 2, 2015. Id.,
Clark, N.P., evaluated plaintiff again on March 30, 2015. ECF
18-5, ¶ 10; ECF 18-4, pp. 29-30. Plaintiff reported
non-radiating intermittent pain in his left hand that was
improving. He explained that the pain was aggravated by
grasping and was relieved by ice and pain medication. He also
reported that the pain had improved significantly with the
hardware removed. Id.
returned to Dr. Jackson on April 20, 2015, for
“follow-up for wound check evaluation and also possible
evaluation for flexor tendon reconstruction to the left index
finger.” ECF 18-4, p. 36. The wound was healing
appropriately, and plaintiff reported that the “plate
pain was gone.” Id. He requested tendon repair
surgery. ECF 18-5, ¶ 11; ECF 18-4, p. 36. Dr. Jackson
explained that plaintiff's records from Eastern Shore
Wicomico Hospital needed to be obtained to determine the
extent of the injury to the tendon, and if the records could
not be obtained there was the possibility for exploratory
surgery and tendon graft. Id. Dr. Jackson's
notes were reviewed with plaintiff on May 20, 2015. ECF 18-4,
p. 37. NP Clark noted that Dr. Jackson requested the original
surgical report from the hospital, but the referenced
hospital appeared to be an inpatient mental health facility.
Clark indicated she would ask plaintiff if he knew the
hospital name and year of original treatment. She also noted
that the report would determine whether plaintiff needed
exploratory surgery or any surgery at all. Id.
22, 2015, plaintiff was seen by Dr. Ashraf at the chronic
care clinic. ECF 18-5, ¶ 12; ECF 18-4, p. 40. In light
of plaintiff's report that he had no pain, his
prescription for Tramadol was discontinued. His prescription
for Baclofen, to treat muscular spasm, was continued.
submitted numerous sick call slips through the end of June
and July complaining of pain and inquiring as to his surgical
consult. ECF 18-4, pp. 42-44. He was seen by NP Clark on July
30, 2015. Id., p. 45. Based on plaintiff's
history, she suspected that plaintiff's pain was
neuropathic in origin and prescribed Gabapentin (also known
as Neurontin). Id. She also indicated that she would
refer him to the regional medical director for review of any
plan for tendon repair. Id.
was seen by Dr. Ashraf in the chronic care clinic on
September 9, 2015. ECF 18-5, ¶ 13; ECF 18-4, p. 48.
Plaintiff continued to complain of pain in his left hand. Dr.
Ashraf noted that plaintiff might benefit from reconstructive
surgery with a tendon graft, and the prior recommendations
for surgical repair had not been ...