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Wendell K. Brown v. Kevin Deparlos

March 28, 2011

WENDELL K. BROWN,
PLAINTIFF
v.
KEVIN DEPARLOS, ET AL., DEFENDANTS



The opinion of the court was delivered by: (Judge Munley)

MEMORANDUM

Plaintiff Wendell K. Brown ("Brown") initiated this action on May 18, 2009. (Doc. 1.) Presently pending are motions for summary judgment filed pursuant to Federal Rule of Civil Procedure 56 on behalf of Elizabeth Anderson, M.D. ("Anderson") (Doc. 101), and nurses Kim Poorman ("Poorman"), Cathy, Judy, Darlene and Tammy (Doc. 104).*fn1

Defendant Anderson's motion is fully briefed and ripe for disposition and, for the reasons set forth below, will be granted. However, the motion filed on behalf of nurses Poorman, Cathy, Judy, Darlene and Tammy will be deemed withdrawn based on defendants' failure to file a supporting brief in accordance with Local Rule of Court 7.5, requiring a supporting brief be filed within fourteen days of the filing of a motion, and defendants' failure to properly support assertions of fact made in the statement of undisputed facts as required by Federal Rule of Civil Procedure 56 (e). (Doc. 104-2.) The withdrawal will be without prejudice to re-submit the motion accompanied by the proper supporting materials.

I. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, the movant is entitled to summary judgment if it "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).*fn2 In pertinent part, parties moving for, or opposing, summary judgment must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Colwell v. Rite-Aid Corp., 602 F.3d 495, 501 (3d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

II. Statement of Facts

With the above standard of review in mind, the following are the facts material to Anderson's motion for summary judgment.

On March 16, 2008, Brown was treated at a Williamsport hospital emergency room for injuries he received as a result of being in a fight. (Doc. 102, ¶ 1.) Upon being discharged from the hospital, he was arrested and transported to the Lycoming County Prison ("LCP"). (Id. at ¶ 2.) It was noted in his medical records that upon incarceration he had two prescriptions bottles on his person. One was from a Medicine Shoppe pharmacy for Valium 5mg, three times a day filled on March 4, 2008, for ninety pills, which was empty. The second bottle for sixty pills of Valium 5mg to be taken every twelve hours was filled on March 15, 2008, at a Rite Aid pharmacy and there were thirty-six tablets missing on the LCP intake date of March 16, 2008. (Id. at ¶ 3.) It was also noted in the medical records that he had a history of Valium use. (Id. at ¶ 5.) During his intake evaluation, Brown advised one of the prison nurses that he suffered from a spinal cord injury and needed a walker. (Id. at ¶ 4.)

Defendant Anderson is currently licensed to practice medicine in the Commonwealth of Pennsylvania, and was so licensed at all times material to Brown's complaint. (Id. at ¶ 8.) She is employed by Susquehanna Physicians Services and occasionally provides medical care and treatment to inmates at LCP. (Id. at ¶¶ 9-10.) In that capacity, Anderson provided medical services to Brown during his incarceration at LCP from 2008 through 2010. (Id. at 11.)

In his affidavit, Brown represents that he "began to suffer from a powerful neck spasm on April 3, 2008, while being denied [his] prescribed medications from outside doctors for pain and spasms." (Doc. 108, ¶ 2.) On that same date, he sought medical attention and reported that for three weeks he had been suffering from left neck back/shoulder pain with pain radiating down his left arm and into his spine, causing his legs to spasm. (Id. at ¶¶ 12-14.) Brown's head was turned to the left and he was holding his left arm in a sling-hold position to relieve pain. (Id. at ¶ 16.) Anderson conducted a physical examination in the presence of a medical student and a nurse and concluded that he was suffering with left neck/shoulder pain - muscle spasm. (Id. at ¶ 18.) She asked Brown to turn his head to the right, left, and up and down and she palpitated his neck to see if it was tender or if there were any discernable fractures. (Id. at ¶¶ 15, 23.) His neck range of motion was limited due to pain and he was unable to turn his head past midline to the right. (Id. at 17.) Anderson also palpitated the plaintiff's muscles to check for spasm and checked for muscle strength. (Id. at ¶ 24.) His muscle strength was at plus 4, which is slightly below normal, his deep tendon reflexes were intact and he had no sensory deficit. (Id. at ¶ 16.) He was diagnosed with left neck/shoulder pain - muscle spasm and prescribed 10 mg of Flexoril three times a day for two weeks to control the muscle spasms and 1000 mg of Tylenol three times a day for two weeks for pain. (Id. at ¶¶ 18-19.)

According to defendant Anderson, the manner in which she palpitated Brown's neck was and is consistent with accepted medical practices for examination and treatment of neck/shoulder muscle spasms. (Id. at ¶ 25.) Turning a patient's head toward the direction of a spasm is known as manipulation and involves, in part, using high velocity low amplitude thrusts which stretch the stiff part of the spine and it is often accompanied by a series of "clicks" or "pops." (Id. at ¶¶ 26-27.) These manipulations frequently result in a rapid reduction of muscle spasm and pain accompanied by a noticeable increase in the range of spinal movement. (Id. at ¶ 28.) Further, manipulation is within the standard of care and is a well-known means of treating a neck spasm and it is used by many physicians, chiropractors, and physical therapists. (Id. at ¶ 27.) Defendant Anderson states that she did not seek to intentionally cause plaintiff pain either by palpitation of his neck or otherwise. (Id. at ¶ 29.)

On April 5, 2008, he sent a request to the medical department for Valium and Percocet for pain. (Doc. 103, at p. 33.) He was given Tylenol and Flexoril. (Id.) He wrote a second request on April 5, 2008, in which he requested a doctor's visit and a neck brace. (Id.) On April 8, 2008, he wrote a request in which he sought medical attention because he was unable to sleep due to pain and numbness in his fingers, and complained that he was being denied medication and proper care. (Id.) On April 10, 2008, Anderson reviewed Brown's request slips for medical treatment. (Doc. 102, ¶ 31.) In response to Brown's ongoing complaints of pain and numbness, Anderson prescribed a cervical collar and added a prescription for Neurontin, 100mg three times a day and 50mg of Ultram three times a day as needed for pain. (Id. at ¶ 31.)

On April 21, 2008, Brown complained that he had been suffering from arm numbness since his visit to the emergency room on March 16, 2008, and there was a concern about cervical neuropathy. (Doc. 103, at p. 34.) It was therefore determined that Brown should have a Magnetic Resonance Imaging("MRI") scan. (Id., at 35.) The following day, prison medical staff scheduled an MRI. (Id.) On April 25, 2008, the MRI was conducted of the plaintiff's cervical spine which showed a left sided C5-C6 disc herniation, C6 nerve compression and C6 disc bulging. (Doc. 102, at ¶ 32.)

On June 3, 2008, he was examined by neurosurgeon Dr. Rodwan Rajjoub for complaints of cervical, bilateral shoulders, and left arm pain . (Id. at ΒΆ 33.) Dr. ...


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