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Davis v. Wexford Health Sources, Inc.

United States District Court, D. Maryland

September 3, 2019

ARNOLD DAVIS, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., DR. ASRESAHEGN GETACHEW, DR. MAHBOOB ASHRAF, Defendants.

          MEMORANDUM OPINION

          JAMES K. BREDAR CHIEF JUDGE.

         In 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, [1] 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.[2] 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.

         BACKGROUND

         In his 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.

         In March of 2015, Dr. Jackson, a hand specialist, performed surgery on plaintiff's left hand to remove hardware. Id., p. 3.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         He 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.

         Plaintiff 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.

         Dr. 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.

         The 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.

         On 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 first. Id.

         On 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. 12.

         After 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. Id.

         The 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.

         On 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. Id.

         Plaintiff 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., p. 28.

         Janette 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.

         Plaintiff 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.

         On June 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. Id.

         Plaintiff 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.

         Plaintiff 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 ...


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