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March 7, 1986

Mir M. Yosuf, Plaintiff
United States of America, Defendant

The opinion of the court was delivered by: MUIR

 I. Introduction.

 On June 9, 1983, Yosuf M. Mir filed the complaint in this action pursuant to the Federal Tort Claims Act, 28 U.S.C. ยง 2671 et seq. in the United States District Court for the District of Columbia. By order of December 2, 1983, the Honorable Thomas Penfield Jackson transferred this action to this Court. Mir's action arose from an incident in which Mir fell at the Allenwood Federal Prison Camp and injured his left arm, wrist and hand. Mir alleges that the Bureau of Prisons refused him adequate and proper treatment for the injury sustained by his hand. This liability phase of the case was tried to the Court from January 16 through January 29, 1986. The Court's findings of fact, conclusions of law, and discussion of this case as to liability follow.

 II. Findings of Fact.

 A. Medical Care.

 1. Yosuf M. Mir was born in Afghanistan around 1952, came to the United States in about 1971, and became a citizen of the United States in 1985.

 2. In approximately 1972, Mir suffered some type of an injury to his left wrist. The injury occurred when a baggage cart was pushed into Mir's left wrist while he was loading the cart onto an elevator in the scope of his employment with Holiday Inn. He received medical treatment for the injury. There are scars on Mir's left hand and wrist, two of which could be surgical scars. It is possible that Mir sustained a fractured wrist at this time, and it is also possible that he had a carpal tunnel release. The exact nature of the injury and the nature of the medical treatment Mir received are unknown.

 3. Mir does not remember any specific details of the nature of the 1972 injury, the treatment he received for the injury or the length of his recovery time from this injury.

 4. Prior to August 31, 1980, Mir had no pain, no numbness, and no limitations of any type with respect to the wrist.

 5. In approximately February, 1979, while working as an assistant to a surveyor, Mir suffered a back injury. Mir experienced some back pain prior to late August 1979.

 6. In July 1979, Mir was convicted of two counts of mail fraud and four counts of wire fraud, and in August, 1979 was committed to the custody of the United States Attorney General for a term of ten years.

 7. In late August 1979, Mir was incarcerated at the Allenwood Federal Prison Camp, Montgomery, Pennsylvania (Allenwood), a minimum security facility under the control of the United States Attorney General.

 8. While at Allenwood, prior to August 31, 1980, Mir received medication for discomfort related to his back injury.

 9. While at Allenwood, prior to August 31, 1980, Mir never complained to the prison authorities about his left wrist or hand.

 10. Mir is left hand dominant.

 11. At approximately 5:00 A.M. on August 31, 1980, Mir slipped on some ice which was on the floor near an ice machine outside of the bathroom of his dormitory. Upon slipping, he attempted to break his fall with his left hand, and sustained an injury to his hand, wrist, and arm.

 12. Shortly after the fall, he began experiencing pain in his left hand and wrist. Mir reported to the Allenwood medical facilities in the morning.

 13. Upon his initial visit to the medical facilities, Mir was seen by a physician's assistant who gave him aspirin and bandaged his hand.

 14. That same morning when the pain became worse Mir returned to the medical facilities, at which time he was instructed to put ice on the hand. Mir followed this advice.

 15. At approximately 9:00 P.M. on September 1, 1980, Mir was moaning and crying because of the pain. Various inmates summoned the Lieutenant who took Mir to his office and made arrangements to have Mir taken to the Evangelical Community Hospital in Lewisburg, Pennsylvania.

 16. At approximately midnight, September 1, 1980, a correctional officer took Mir to the Evangelical Community Hospital. A doctor put Mir's left hand in a sling and gave Mir some medication. The doctor gave the correctional officer a document indicating that Mir should come back to the hospital the next day for rechecking and x-rays.

 17. Mir was taken back to Allenwood where he had difficulty sleeping because of the pain.

 18. On September 2, 1980, at 7:00 A.M., Mir again reported for sick call, and at that time a physician's assistant attempted to x-ray his left wrist and hand. However, Mir refused the x-rays because he felt that the physician's assistant was too rough in his handling of the injured hand while attempting to X-ray it.

 19. On that same day, September 2, a hospital administrator at Allenwood, Mr. Roach explained to Mir that Allenwood could take the x-rays that day, that Mir would not be roughly handled and that Mir would be scheduled to see an orthopedic specialist on September 3, 1980. With those assurances, Mir agreed to the x-ray, and the x-ray was taken at 2:00 P.M. on September 2, 1980.

 20. Mir's appointment with the orthopedic specialist for September 3, 1980 was rescheduled by the prison authorities for September 17, 1980.

 21. Mir continued to experience pain in his left hand and wrist. By September 4, 1980 Mir's hand was becoming numb and he was unable to move the hand without pain.

 22. On September 4, 1980 at approximately noon, Mir reported for sick call but was told that he had not followed the proper procedure for making a sick call appointment. At that time, Mir became agitated. Mir stated that if he wasn't in prison he could get proper care for his hand, complained generally about lack of medical attention, and indicated that he was going to file an administrative complaint. As a result of these statements, Mir was issued an incident report for behaving threateningly towards a staff member.

 23. On September 4, 1980, Mir returned to the clinic and was seen by a physician's assistant. The x-rays were repeated, the wrist re-splinted, and the arm elevated.

 24. At the time of his examination on September 4, 1980, Mir complained of numbness in the thumb and middle fingers of the left hand.

 25. On September 4, 1980, the hand and wrist appeared yellowish in color, warm to the touch, with no swelling, no ecchymosis and no lacerations.

 26. The x-rays taken on September 4, 1980 were not read by a radiologist until September 18, 1980, when the following report was made:

There is a 1 x 2 cyst in the distal metapharys (sic) of the radius with a partial sclerotic border. There is no fracture but it would be easily susceptible to a future fracture. It could be due to old inflammation. Follow-up is suggested in a month or two.

 27. On September 5, 1980, Mir was transferred to the Segregation Unit at the United States Penitentiary at Lewisburg, Pennsylvania (Lewisburg) pending a hearing on the incident report filed September 4, 1980.

 28. When Mir arrived at Lewisburg, Mir complained to staff at Lewisburg that he had been beaten while in transit by the two correctional officers transporting him to Lewisburg. After delivering Mir to Lewisburg, the correctional officers who transported Mir wrote an incident report against Mir for threatening the correctional officers.

 29. Mir was put in segregation at the Lewisburg on September 5, 1980.

 30. At approximately 3:00 P.M. on September 5, while in segregation, Mir was seen by Dr. Stallworth, a staff general surgeon at Lewisburg Penitentiary. Dr. Stallworth found that Mir's problem was beyond her range of expertise and recommended referral to an orthopedic specialist. Dr. Stallworth prescribed no pain medication. No other treatment was given to Mir at that time.

 31. On September 11, 1980, Mir was taken to see an orthopedist, Dr. J. Arnold Donovan. Dr. Donovan examined Mir and stated in a report that Mir was complaining of numbness and pain in the wrist.

 32. Dr. Donovan found no muscle wasting or atrophy.

 33. The Doctor stated that the X-rays showed no fracture. Dr. Donovan opined that there was some arthritic changes of the radial carpal joints indicating an old injury and changes there and a cyst formation of the distal radius.

 34. Dr. Donovan did not find any serious pathology. He stated in his report that Mir was completely uncooperative, extremely hostile and needed some psychiatric help.

 35. Dr. Donovan was of the opinion that if Mir's wrist caused him further trouble, he should be transferred to the United States Medical Center for Federal Prisoners at Springfield, Missouri (Springfield) where Donovan felt that they were more capable of dealing with Mir's hostility.

 36. Following the examination by Dr. Donovan, Mir was transferred back to the Segregation Unit at Lewisburg.

 37. Mir was seen by Dr. Dudley Turner, another staff physician at Lewisburg, on September 16, 1980. This examination was the result of a phone call to the prison authorities from the Honorable Richard P. Conaboy of this Court.

 38. Dr. Turner took a history which included Mir's previous back problem and his hand and wrist injury of August 31, 1980. No treatment was rendered by Dr. Turner.

 39. On September 18, 1980, Dr. Mahoney, a psychiatrist at Lewisburg Penitentiary, saw Mir and concluded that Mir had no noticeable psychiatric defect at that time. No treatment for the wrist injury was rendered by Dr. Mahoney.

 40. At various times during his confinement to segregation at Lewisburg, Mir attempted to obtain medical treatment for his hand and wrist by putting notes on his cell door indicating that he was in pain and requesting medical attention.

 41. In addition to posting notes, Mir orally complained of pain and numbness in his hand and sought medical attention.

 42. These written and oral pleas for help did not result in the administration of other than an occasional aspirin or aspirin-type pain relief medicine.

 44. Besides the occasional administration of aspirin-type pain relievers, the examinations noted above were the only medical treatment received by Mir for his injured wrist and hand from the time he was transferred to the Lewisburg Segregation Unit on September 5, 1980 until an order of this Court by the Honorable Richard P. Conaboy dated December 11, 1980.

 45. On or about September 29, 1980, Mir filed a pro se habeas corpus petition in which he alleged that he was being held in segregation illegally, that he was being denied access to the Courts, and that he was being denied proper medical treatment for the injury suffered on August 31, 1980.

 46. The Respondent in the habeas corpus proceeding, Joseph S. Petrovsky, filed a response to the petition on October 20, 1980, wherein Mir's allegations were generally denied.

 47. Because of conflicts in the allegations, by Memorandum and Order dated December 11, 1980, the Honorable Richard P. Conaboy appointed an independent orthopedic specialist, Dr. Frederick R. Amsler, Jr. of Williamsport, Pennsylvania to examine Mir.

 48. On December 12, 1980, the day after the issuance of Judge Conaboy's order, Mir was given pain medication (norgesic, two tablets three times a day as needed to last five days).

 49. Throughout the time that he had been at the Lewisburg Segregation Unit from September 5, 1980 until December 12, 1980, Mir had been denied any pain medication except aspirin-type drugs, even though he had been receiving prescription pain medicine at Allenwood for his back problems.

 50. Pursuant to Judge Conaboy's Order of December 11, 1980, Mir was examined and evaluated by Dr. Amsler on December 16, 1980.

 51. As a result of the examination, Dr. Amsler issued a report to Judge Conaboy, dated December 29, 1980, which set forth his findings, conclusions and recommendations. The report provided as follows:

Mir M. Yosuf is a 27 year old prisoner at the Lewisburg Penitentiary who was examined in my office on December 16, 1980. Mir Yosuf states that he was in normal health until about 5:00 a.m. in the morning on August 31, 1980, when he slipped on chips of ice outside an ice maker near his cell at the Lewisburg Penitentiary. The patient tried to break his fall with the extended left upper extremity. As he impacted he injured his left wrist. He has had severe pain in the left wrist since that date. The patient has been attended on numerous occasions by various physicians, however, in spite of this attention and care he has gone on to develop a useless chronically painful wrist and hand. The patient notes that prior to this injury he was left handed and wrote with his left hand but since the injury has had to use his right hand for writing. He has difficulty using the left hand for light activities and does not use the hand for dressing or eating. At the present time he uses his right hand to accomplish all of these functions. The patient notes that so long as he does not use the hand or move the wrist, the pain is minimal, however, any motion associated with this wrist causes severe pain. In addition to the pain the patient also has a numbing sensation involving the thumb, index and long finger of his left hand.
My examination on December 16, 1980, revealed an alert male who seemed comfortable sitting on the examination table with his left arm resting on a pillow. The patient had virtually no active flexion or extension of the fingers of the left hand and he maintained the wrist in a position of about 30 degrees flexion and the fingers were in more or less neutral position. Attempts to passively flex or extend the fingers were associated with sharp pain in the wrist and hand. Sensation was tested with light touch and there was a decreased sensibility to light touch in the thumb, index and long finger. The patient noted that he had relatively normal flexibility and sensation in the small finger of the left hand.
Range of motion testing of the elbow revealed the patient had 45-50 degrees pronation and supination of the elbow. The patient hesitated to move the elbow because the motion of the elbow indirectly affected the hand and wrist. However, with careful examination we determined the patient had motion in the elbow from 30 degrees to 120 degrees. There was no tenderness to palpation over the shoulder, arm, or forearm. However, there was tenderness to even light pressure over the volar and dorsal aspect of the left wrist. There is a well healed incision over the distal radius on the left side which the patient states is related to a fracture which occurred about eight years ago. Following that injury the patient notes that he had regained full and normal use of the wrist and hand.
Subsequent examination of the left hand and wrist reveals the patient has arthrosis with narrowing of the joint space between the distal radius and the proximal row of carpal bones. There is an irregular cystic cavity in the distal radius which measures two by three centimeters on the anterior posterior view of the wrist joint. This lesion appears to be lytic in nature and the borders are well defined on the ulnar aspect but poorly defined proximally. Based on this x-ray examination I cannot make a specific disagnosis (sic.) as to the nature of this lesion. In any event he does have an arthrosis or degenerative disease which may be traumtic (sic.) in origin at the carpal radial joint and lytic lesion the etiology of which is not determined. Based on this examination it is my impression that the patient has a ...

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