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Alice J. Neuen, et al v. Primecare Medical

March 24, 2011


The opinion of the court was delivered by: Sitarski, M.J.


Currently pending before the Court is a motion for summary judgment filed by Defendants PrimeCare Medical, Inc., Paula Dillman-McGowan, CRNP, and Faye Oxenreider, LPN. For the following reasons, the motion will be GRANTED in part and DENIED in part.


Plaintiffs filed their Complaint on November 5, 2009, against Berks County, Berks County Prison, Sergeant J. Franklin, PrimeCare Medical, Inc., Mildred Karanja, LPN, Paula Dillman-McGowan, CRNP, and Faye Oxenreider, LPN. This matter initially was assigned to District Court Judge Juan R. Sanchez. On March 23, 2010, the parties consented to the exercise of jurisdiction by a United States Magistrate Judge under 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, and the matter was referred to me. (Doc. No. 23).

On October 12, 2010, the Court approved the parties' stipulation for voluntary dismissal of Mildred Karanja, LPN. (Doc. No. 30). On October 14, 2010, the Court also approved the parties' stipulation for voluntary dismissal of Sergeant J. Franklin. (Doc. No. 31). And, on January 11, 2011, the Court approved the parties' stipulation for voluntary dismissal of Berks County and Berks County Prison. (Doc. No. 38). Thus, the claims remaining in this matter are those pending against PrimeCare Medical, Inc. ("PrimeCare"), Paula Dillman-McGowan, CRNP, and Faye Oxenreider, LPN (collectively, "Defendants"). Those claims are: the alleged violations of 42 U.S.C. §1983 for deliberate indifference to Alice Neuen's serious medical needs while incarcerated (Counts I and II), medical negligence (Count III), and Loss of Consortium (Count VI).*fn1

On December 14, 2010, following the completion of discovery, Defendants filed the instant Motion for Summary Judgment. (Doc. No. 32).Defendants move for summary judgment on the grounds that Plaintiffs are unable to show that Nurse Dillman-McGowan and Nurse Oxenreider acted with deliberate indifference to Ms. Neuen's serious medical need or that a policy or custom of PrimeCare caused a constitutional violation. See Def.'s Br. in Sup. at 4-5. Defendants also argue that Plaintiffs' supplemental state law claims should be dismissed in the event that the Court grants summary judgment on the federal claims. Id. at 7. On January 4, 2011, Plaintiffs filed their Answer to Defendants' Motion. (Doc. No. 36). The Court heard oral argument on January 21, 2011. (Doc. No. 39). By order dated February 10, 2011, the Court denied Defendants' request for dismissal of the supplemental state law claims based on considerations of judicial economy, and the Court set trial for April 25, 2011. Accordingly, this matter is now ripe for disposition.


Alice Neuen, an insulin dependent diabetic, was incarcerated on April 18, 2008. Comp. ¶¶ 13, 17; Plt.'s Memo., Ex. A. The prison medical records indicate that, at the time of her incarceration, Ms. Neuen had peripheral vascular disease with risk factors including obesity, hypertension, hyperlipidemia, and diabetic neuropathy. Plt.'s Memo., Ex. G. Ms. Neuen had undergone successful arterial bypass surgery on her right leg a couple of weeks before her incarceration, and she was scheduled to see her treating physician, Robert A. Brigham, M.D., for similar treatment of her left leg. Comp. ¶¶ 15-16, 18; Neuen Dep. at 46. The appointment for the left leg was scheduled for April 21, 2008. Id.; Plt.'s Memo., Ex. C. Immediately upon her incarceration on April 18, Ms. Neuen informed PrimeCare employees of the medical status of both legs, including the April 21 appointment to address her left leg. Neuen Dep. at 46. Ms. Neuen also completed PrimeCare's Receiving Screening/Health Assessment form and indicated that she required a medical referral with respect to the "bypass done on 4/4/08." Def.'s Mot., Ex.

A. As set forth in detail below, Ms. Neuen did not receive a physical examination of her lower extremities during the first three days of her incarceration; Ms. Neuen was prevented from keeping her appointment with her treating physician; and she was not seen by a prison physician until April 30, 2008. Comp. ¶ 19; A.Neuen Dep. at 46-47, 56-57; Plt.'s Memo., Ex. I; Gessner Dep. at 91.

On April 21, 2008, three days after Ms. Neuen was incarcerated, PrimeCare employees performed a physical examination of Ms. Neuen's lower extremities. Id.; Plt.'s Memo., Ex. G. Nurse Dillman-McGowan examined Ms. Neuen and noted "PVD [peripheral vascular disease]." Plt.'s Memo., Ex. G. During her examination, Nurse Dillman-McGowan was unable to palpate (feel) or auscultate (hear) a pulse in the left foot. Plt.'s Memo., Ex. G. Nurse Dillman-McGowan found that the left foot was cold to the touch, and exhibited rubor (redness) and erythema (redness caused by dilation and congestion of the capillaries). Id.; Dillman-McGowan Dep. at 97-99. Nurse Dillman-McGowan testified that she did not know how long these conditions existed in Ms. Neuen's left foot, and the medical records do not reflect any inquiry or information in that regard.

Dillman-McGowan Dep. at 99. However, Nurse Dillman-McGowan testified that "[i]f this were something new and the patient had reported that this was something new, it would have been an urgent referral." Id. Nurse Dillman-McGowan was taught to recognize the signs and symptoms of peripheral vascular disease and treat them as soon as possible to avoid the progression to gangrene. Dillman-McGowan Dep. at 68-69. With regard to the right foot, Nurse Dillman-McGowan noted a Stage I ulcer and "necrosis oozing" on the first digit. Plt.'s Memo, Ex. G. Nurse Dillman-McGowan then ordered Silvadene*fn3 for the left foot, Tegaderm*fn4 for the right foot, and Neurontin.*fn5 Def.'s Mot., Ex. E. Nurse Dillman-McGowan testified that she believed that Ms. Neuen did not need further evaluation or treatment on April 21, 2008. Dillman-McGowan Dep. at103-104. However, Nurse Dillman-McGowan told Ms. Neuen that she was "going to see the [prison] doctor Wednesday, [April] 23rd." A.Neuen Dep. at 69.

During the examination on April 21, Ms. Neuen advised Nurse Dillman-McGowan that she was concerned about keeping her appointment with Dr. Brigham, which was scheduled for that same day, April 21. A.Neuen Dep. at 62-63; Plt.'s Memo, Exs. C & I. Nurse Dillman-McGowan told Ms. Neuen that she would "take care" of the appointment with Dr. Brigham, and she would call his office to change the appointment. Plt.'s Memo., Ex. I. Nurse Dillman-McGowan noted an order to "obtain old records [from] . . . Dr. Brigham," which was marked "done" in an unidentified hand. Def.'s Mot., Ex. E. At the direction of Nurse Dillman-McGowan, Ms. Neuen completed an Authorization For Release of Health Information, which included a request to "please cancel appt. for today. BCP [Berks County Prison] will reschedule." Plt.'s Memo., Ex. G; Transcript dated Jan. 21, 2011, p. 8. The Authorization form was faxed to Dr. Brigham's office by Nurse Oxenreider; however, neither practitioner followed up with a call to Dr. Brigham's office. Dillman-McGowan Dep. at 44-47; Plt.'s Memo., Exs. A & F. Nurse Dillman-McGowan testified that, as a matter of policy, the only interaction she would have with a prisoner's outside physician in terms of obtaining information about the patient's condition would be to send a medical records request. Dillman-McGowan Dep. at 41-42. Aside from this reference to Nurse Dillman-McGowan's use of the word "policy," there is no evidence of record concerning PrimeCare's policies governing provision of medical services at the Berks County Prison.

On April 21, 2008, Nurse Oxenreider also examined Ms. Neuen's lower extremities and completed a Wound Identification Chart. Plt.'s Memo., Ex. G; Transcript dated Jan. 21, 2011, p. 10; Oxenreider Dep. at 21-22. Nurse Oxenreider noted a wound on the toes of the left foot and wounds on the right foot. Id. Nurse Oxenreider also bathed Ms. Neuen and administered medication and dressing changes on other unspecified occasions. Oxenreider Dep. at 10.

On April 22, 2008, Ms. Neuen completed a Sick Call Request stating, "want to discuss [right] great toe and pain in left foot." Plt.'s Memo., Ex. G. The next day, on April 23, Nurse Dillman-McGowan spoke with Ms. Neuen in her cell and examined the dressing on Ms. Neuen's right toe. Dillman-McGowan Dep. at 160. Nurse Dillman-McGowan recorded Ms. Neuen's symptoms and noted "await old records . . . [follow up with] Dr. Gessner as previously scheduled." Def.'s Mot., Ex. E. There is no indication in the record that any documents were ever received from the outside medical providers. On that same date, Nurse Dillman-McGowan reported that Ms. Neuen complained of "severe" "burning pain" in her left foot, but a physical examination of the left foot was not conducted. Plt.'s Memo., Ex. G; Dillman-McGowan Dep. at 160. Nurse Dillman-McGowan did not consider whether the severe burning pain of the left foot on April 23 was a new finding, in addition to the previously noted symptoms. Dillman-McGowan Dep. at 159.

The prison physician, Victoria Gessner, M.D., was working at the prison on April 23, 2008, but Ms. Neuen was not referred to her care on that day, as had been promised by Nurse Dillman-McGowan. Gessner Dep. at 43; A.Neuen Dep. at 69. Ms. Neuen's diary entry dated April 23, 2008, states "[m]y left leg hurting a lot." Plt.'s Memo., Ex. I. The Dispensary Cards indicate that Ms. Neuen was ordered to receive Robaxin*fn6 and Ultram*fn7 beginning April 23, 2008. Def.'s Mot., Ex. E.

Ms. Neuen's left foot was not examined for the next several days, during which time Ms. Neuen's pain and symptoms in her left foot continued to increase. Plt.'s Memo., Ex. I. Ms. Neuen's diary entry dated April 25, 2008, states that she asked the night nurse to please contact her surgeon and that she was "in so much pain." Plt.'s Memo., Ex. I. On April 26, 2008, Ms. Neuen made a single diary entry: "Nothing New - still no word about my surgery - I keep asking -no response." Id. Ms. Neuen's diary entry on April 27, 2008, states "I hurt so bad I'm afraid I'm going to die." Id. On that same day, Mr. Neuen visited his wife in the prison, and he observed that the toes on her left foot "were black and her nails were oozing." L.Neuen Dep. at 20. Ms. Neuen's diary entry the next day, April 28, 2008, also states that her toes were turning black.

Plt.'s Memo., Ex. I.

The next medical record concerning Ms. Neuen's left foot is dated April 29, 2008, when Silvadene was applied to the left foot. Def.'s Mot., Ex. E. A Sick Call report on that same day noted that Ms. Neuen exhibited "symptoms of anxiety verbally not responding." Def.'s Mot., Ex. E.

The next day, on April 30, 2008 computerized medical records indicate that Joetta Kline, a PrimeCare employee, placed a call to Dr. Brigham's office. Def.'s Mot., Ex. E. The record contains two entries concerning this contact with Dr. Brighman's office. First, Ms. Kline noted that "Dr. Brigham's office will be sending notification in June 2008 when next follow up appointment is due." Id. Second, an "Appointment Description" states, "nursing please contact Dr. Brigham's office[.] Can they send records? When should pt be seen? Pt reports just havin[g] fempop bypass 4/1/08. Please task to CRNP note re results of conversation?" The "Appointment Change Note" for that same entry states, "Jo placed call to Dr. Brigham's office to [follow up] about [appointment]. [Inmate] is a [patient] with this doctor." Id.

Ms. Neuen's left foot was finally examined by the prison physician, Dr. Gessner, on April 30, 2008. Gessner Dep. at 143. At that time, the possible presence of a blister on the toes and "the entire clinical picture made [Dr. Gessner] concerned for the vascular integrity of that foot." Gessner Dep. at 143. Consequently, Dr. Gessner recommended Ms. Neuen's immediate transfer to the Reading Hospital emergency room, which took place with the approval of the corporate vice president who happened to be at the prison that same day. Id. at 147.

At Reading Hospital, Ms. Neuen was noted to have "gangrenous changes on her toes and was anticoagulated with [H]eparin.*fn8 " Plt.'s Memo., Ex. A. Plaintiffs' expert, Paul E. Collier, M.D., opined that the delay in treatment "allowed the vascular occlusions to progress leading to the development of gangrenous changes." Id. Left leg bypass surgery was performed on May 2, 2008, but there was no improvement in the ...

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