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Neisser v. Wexford Health Services, Inc.

United States District Court, D. Maryland

December 10, 2019

JARED ANDREW NEISSER, Plaintiff
v.
WEXFORD HEALTH SOURCES, INC., et al . Defendants

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         In this § 1983 civil rights action, the self-represented plaintiff, Jared Andrew Neisser, a prisoner at Maryland Correctional Training Center, alleges that defendants acted with deliberate indifference to his medical needs while he was housed at Jessup Correctional Institution (“JCI”). ECF 1; ECF 6. He also complains that he was denied access to his medical records. Id. The plaintiff submitted exhibits with his suit.

         Defendants Wexford Health Sources, Inc. (“Wexford”); Marnette Valcin, N.P.; Bernard Alenda, N.P.; and Eveline Bobga Tatong, R.N.[1] have moved to dismiss or, in the alternative, for summary judgment. ECF 17. The motion is supported by a memorandum (ECF 17-3) (collectively, the “Motion”) and several exhibits. Neisser opposes the motion. ECF 21; ECF 24; ECF 26. Defendants have replied. ECF 22.[2]

         No hearing his needed to resolve the Motion. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, defendants' Motion, construed as a motion for summary judgment, shall be granted.

         I. Background

         A. Plaintiff's allegations

         On August 21, 2018, plaintiff had an epileptic seizure while he was in his cell. ECF 1 at 5. Plaintiff states that his medical records clearly indicate that he suffers from epilepsy, but Wexford medical staff treated him as though he were suffering from a drug overdose, rather than from a seizure, and administered Narcan. Id. He was transferred to the medical unit where another dose of Narcan was administered intra-muscularly. Id. Shortly thereafter, his “legs locked up, ” which plaintiff attributes to the use of Narcan. Id. He was then given Benadryl to “stop the reaction.” Id. The following day, plaintiff was transferred back to MCTC, where a urinalysis was performed. It showed that plaintiff had not taken any illegal substances. Id.

         Plaintiff filed a grievance regarding the incident. Id. He maintains that the conduct of the medical providers could have adversely affected his security status, good time credits, and release date. Id. Plaintiff also alleges that unidentified defendants hindered his access to his medical records by stating that he could only access them once every six months. Id. at 6. Ultimately, plaintiff was provided access to the records when he invoked his rights under the Freedom of Information Act. Id.

         B. Medical Defendants' Response

         1. August 21, 2018 incident

         On August 21, 2018, at approximately 6:27 p.m., RN Tatong and Nurse Practitioner Valcin evaluated plaintiff in response to an emergency medical call. ECF 17-4 at 2-3, 4-5. Custody staff reported that plaintiff had been found shaking on his bed and was then moved to the floor. Id. at 2.

         Valcin's note indicates that when she responded to plaintiff's cell he was found on the mattress, “lying on prone position . . . .” Id. at 4. Although plaintiff was breathing, he did not respond to pain or voice stimuli. Id. He was sweating heavily and there was no indication of what preceded the change in his mental status. Id. Tatong noted that when she arrived, plaintiff was on the floor, sweating, and unable to follow commands. Id. at 2-3.

         At approximately 6:35 p.m., a spray of Narcan was administered.[3] Id. at 2, 4. Plaintiff immediately opened his eyes and made eye contact. He was still weak and could not follow commands. Id. at 2, 4. Plaintiff was taken to the medical unit where he was coherent but remained drowsy, weak, and exhibited slow speech. Id. At 6:45 p.m. Valcin directed an intramuscular administration of Narcan. Id. Fifteen minutes later, plaintiff's speech improved and he was alert and oriented to person, place, and time. Id. Plaintiff advised medical staff that he had stopped taking his seizure medication for some period. Id. He denied that he had taken illegal drugs. Id. at 4. It was unclear whether plaintiff was suffering from a “Post ictal state vs substance abuse.” Id. He was given Keppra[4] and Tylenol. Id. at 2, 4. Plaintiff responded to the treatment. Id.

         At approximately 7:51 p.m., plaintiff complained that both of his legs were “locking up.” Id. at 3, 4. At the direction of Valcin he was given Benadryl intramuscularly. Id. A short time later, plaintiff complained of headache and was provided Excedrin Migraine. He reported feeling much better and at 10:20 p.m. was discharged back to his housing unit by Nurse Practitioner Alenda. Id. at 3, 6.

         Ayoku Oketunji, M.D., a licensed Maryland physician and a Wexford employee, examined plaintiff's medical records. ECF 17-5 (Affidavit). Plaintiff was 40 years of age at the time, with a medical history of epilepsy, depression, and other conditions. ECF 17-5, ¶ 4. He explains that plaintiff's recovery “was clinically assessed as ambiguous for either post ictal seizure symptoms or opioid toxicity.” Id. ¶ 11. But, plaintiff's rapid increase in responsiveness to Narcan was typical for opioid toxicity. However, he also displayed symptoms of recovery from an ictal seizure. Id. The cause of plaintiff's condition was not apparent at that time. Id. Moreover, plaintiff “had admitted not being compliant with Keppra.” Id.

         On September 10, 2018, plaintiff submitted a sick call slip requesting to be seen by mental health and complaining that since the incident at JCI on August 21, 2018, he had difficulty sleeping and concentrating and was extremely worried. ECF 17-4 at 7. He was seen by mental health staff the same day. Id. at 8. Neisser was irritable, defensive, and angry about the events at JCI. Id. Plaintiff requested confirmation that medical had done something wrong and when the mental health provider explained that it was not his role to make such an assessment plaintiff became upset and left the appointment. Id.

         Contah Nimely, M.D. saw plaintiff on September 10, 2018, for a chronic care appointment. ECF 17-4 at 9-11. It was noted that plaintiff's most recent seizure had occurred a few weeks earlier. Id. at 9. Plaintiff stated that he was not taking Keppra and wanted to continue Excedrin because it improved his headaches. Id. Dr. Nimely advised plaintiff to discontinue use of Excedrin if he had another seizure and was reminded to be compliant with the Keppra. Id. Plaintiff's physical examination was unremarkable. Id. at 9-10.

         On December 4, 2018, plaintiff was seen again in the chronic care clinic. ECF 17-4 at 12-14. He had not suffered any seizures in the previous 90 days and his physical examination was unremarkable. Id.

         Dr. Oketunji opines that the mid-level providers who treated plaintiff on August 21, 2018, followed the appropriate medical standard of care for treating an unresponsive patient presenting with plaintiff's clinical conditions. ECF 17-5, ¶¶ 7, 8. He explains that absent an obstructed airway, obvious impaired circulation or hypoglycemia, none of which were present in this case, the standard of care dictated treating plaintiff with Narcan. Id. ¶ 8.

         Specifically, Dr. Oketunji avers: “In view of the potentially very serious, and commonly lethal, effects of opioid toxicity . . . compared to the low incidence of side effects from Narcan, it is standard medical procedure to administer [Narcan] . . . for unresponsive patients notwithstanding other potential sources of unresponsiveness including reported or observed seizure activity or in a patient with seizure history.” Id. ¶ 8. He added, id.: [I]n short, the benefit of using the medication prior to confirmation of overdose outweigh[s] the risks to the patient particularly in the prison setting where abuse and overdose on opioids is common.” Id. In Dr. Oketunji's opinion, to a reasonable degree of medical probability, the administration of Narcan was appropriate treatment of plaintiff's unresponsive condition on August 21, 2016, and plaintiff did not suffer any significant harm due to its administration. Id. ¶ 12.

         2. Access to Medical Records

         On January 26, 2019, plaintiff submitted a sick call slip requesting his medical records. ECF 17-4 at 15. Subsequently, he submitted a memorandum stating that the Maryland Public Information Act mandated he be given his medical records. Id. at 16. The Department of Public Safety and Correctional Services limits inmates' access to their medical records for review and copies to once every six months. ECF 17-6.

         II. Standard of Review

         Defendants' motion is styled as motions to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. ...


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