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Elaine R. Mckissick, In Her Own Right, and As Administratrix of the Estate of Troy Allen Cole v. County of York

October 25, 2011


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



On October 7, 2008, Troy Cole entered the York County Prison as a pre-trial detainee. At that time, Cole was 40 years old and suffered from a host of medical and substance abuse problems, including end-stage renal disease, hepatitis C, hypertension, seizure disorder, and opiate addiction. During the early morning hours of October 28, 2008, Cole suffered a heart attack at the prison, and subsequently died at a hospital on November 5, 2008, due to complications from hypertensive cardiovascular disease, lack of oxygen to the brain, and bronchopneumonia.

Following Troy Cole's death, Elaine McKissick, Troy Cole's mother and the administratrix of his estate ("Plaintiff"), brought this action in federal court on September 23, 2009. (Doc. 1) In her complaint, Plaintiff alleged that medical providers at the prison were liable for violations of the Eighth and Fourteenth Amendments to the United States Constitution, and for negligence under state law. With respect to these claims, Plaintiff named as Defendants PrimeCare Medical, Inc. and its employees: Michelle Murphy, CMA; B. Hamrick, RN; Kimberly Heim, RN; Michelle Rau, EMT; and Dr. Erik Von Kiel (collectively, the "Medical Defendants").

Additionally, Plaintiff sued the County of York; the York County Board of Inspectors a/k/a York County Prison Board; and Mary E. Sabol, the prison's warden, alleging that these Defendants violated Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), by prohibiting Troy Cole from continuing with methadone treatments following his arrival at the prison, and alleging that the deprivation of methadone caused or contributed to his inability to complete his dialysis treatments for end-stage renal disease.

Defendants responded by filing motions to dismiss the complaint (Docs. 12, 17), which the District Court granted in part and denied in part. (Doc. 40) In its order, the District Court dismissed Plaintiff's claims against the County of York and Warden Mary Sabol, but permitted all remaining claims against the Medical Defendants and against the York County Prison Board to go forward. (Id.)

Following a period of discovery, the Medical Defendants and the Prison Board have moved separately for summary judgment on all of Plaintiff's claims. (Docs. 54, 58) The motions have been fully briefed and are ripe for disposition. (Docs. 59, 60, 69, 70, 71, 72, 73, 74, 75) Upon consideration of the motions and documents filed in support of and opposition thereto, we find that there remain unresolved issues of material fact that preclude summary disposition of Plaintiff's claims against Dr. Von Kiel, Kimberly Heim, RN, and PrimeCare Medical, and that these disputed factual issues necessarily must be resolved by a factfinder at trial.

However, with respect to Plaintiff's claim against the York County Prison Board for alleged violations of Title II of the ADA, we find that Plaintiff has developed insufficient facts to support this claim. In essence, Plaintiff claims that the prison's policy of prohibiting inmates from continuing to use methadone was itself discriminatory, and that the deprivation of methadone impaired Troy Cole's ability to complete his dialysis treatments. As discussed below, however, we find that Plaintiff has failed to support this claim with sufficient evidence to survive summary judgment. As an initial matter, we have some doubts that Cole was a "qualified individual" under the ADA, as he admitted to prison officials that he used heroin two days before arriving at the prison, and there is thus some question as to whether Cole was a recovering drug addict who comes within the protections of the ADA.

But even if this is merely a fact question that ordinarily should be resolved by a jury, and we assume that Cole was a qualified individual under the ADA for purposes of ruling on the motion for summary judgment, Plaintiff's claim nevertheless fails because she has not shown that Cole was discriminated against, as the methadone policy applied to all male inmates at the prison, and because Cole was not denied access to his dialysis treatments.

Even more fundamentally, the record contains insufficient evidence to support Plaintiff's underlying claim that Cole's lack of access to methadone caused or contributed to his inability to complete his dialysis treatments. Instead, the record presented to the Court contains only the lay, speculative testimony of Plaintiff that her son required methadone to complete dialysis, and a limited reference in one of Cole's treatment notes indicates that Cole claimed he was "wigging out" due to withdrawal symptoms. Notably, although Plaintiff has provided two expert reports in support of her claims, neither expert opined that Cole's lack of methadone treatment was the, or one of the, reasons that Cole failed to complete his dialysis treatments. Instead, these experts opined that Cole's diet and uncontrolled hypertension were the contributing and critical reasons for Cole's failed dialysis, and their testimony otherwise focuses almost exclusively on the medical treatment that Cole received at the prison, and particularly on Cole's last day at the prison, when he began a clinical devolution that ended with him suffering a heart attack shortly before 2:00 a.m. on October 28, 2008. Accordingly, we find Plaintiff has failed to support her ADA claim, and the lack of evidence compels a finding that summary judgment in the Prison Board's favor is warranted.

In sum, we find that Plaintiff has failed to meet her burden on summary judgment of pointing to evidence to support her claim against the Prison Board under Title II of the ADA, and we will, therefore, grant summary judgment in the Prison Board's favor on this claim. However, Plaintiff has demonstrated the existence of disputed issues of material fact relevant to her claims against the Medical Defendants, and these claims will proceed to trial.*fn1


By the time he was arrested in October 2008 on an outstanding warrant, 40 year-old Troy Cole had been addicted to drugs, including opiates, for approximately 14 years. In addition to his long history of substance abuse, Cole suffered from myriad serious medical problems, including end-stage renal disease, hepatitis C, hypertension, and seizure disorder. To treat his end-state renal disease, Cole had been undergoing dialysis treatments. In addition, to combat his opiate addiction, Cole was following a regimen of methadone treatment to control his withdrawal symptoms and to facilitate therapeutic progress; according to Plaintiff, Cole had been undergoing methadone treatment for approximately three months before his arrest. (Doc. 73, Ex. R, Deposition of Elaine McKissick, at 36) However, according to the medical intake form prepared upon Cole's arrival at the prison, Cole admitted to having used three bags of heroin just two days before his arrest. (Doc. 73, Ex. G, Medical Intake Form) Thus, when Cole was processed into the York County Prison on October 7, 2008, he suffered from grave health and substance-abuse problems -- problems that medical staff at the prison initially seem to have recognized and acted upon.*fn3

Thus, because of the manifest nature of his serious medical conditions, upon being admitted to the prison, Cole was immediately placed in the medical unit at York County Prison under the care of PrimeCare Medical, Inc., the contractor to which York County's Prison Board outsources the medical care of inmates at the prison. It, therefore, appears beyond dispute that Cole presented to the prison with very serious medical conditions, and that medical officials at the prison initially recognized these conditions and housed Cole accordingly. (Doc. 73, Ex. G, Initial Medical Assessment)*fn4

After his intake, however, the parties dispute whether Cole was, in fact, provided with appropriate and necessary medical care over the following three weeks leading up to his discharge during the early morning hours of October 28, 2008, after he suffered what would prove to be a fatal heart attack while in custody at the prison.

Among her claims, Plaintiff has charged that the Prison Board followed PrimeCare Medical guidelines, which provided that no inmates other than expectant mothers would received methadone treatment while in custody. Plaintiff claims that the refusal to make methadone available to Cole was discriminatory and caused Troy Cole medical injury by impairing his ability to complete necessary dialysis treatments. As an initial matter, there is no dispute PrimeCare Medical adhered to a policy that refused to continue methadone treatment for inmates other than pregnant women, unless ordered by a court to do so. Accordingly, following his intake at the prison, Troy Cole's methadone treatments were abruptly discontinued. According to Defendants, PrimeCare Medical addresses addicted inmates' withdrawal symptoms with alternative therapies and approaches, although it is not clear from the record what steps were taken in response to Cole's alleged withdrawal symptoms.

The physician in charge of Troy Cole's medical care at the prison was Dr. Erik Von Kiel, an employee of PrimeCare, who first saw Cole on October 17, 2008, ten days after his arrival at the prison. (Doc. 73, Ex. D, L) Dr. Von Kiel testified during his deposition that notwithstanding Cole's numerous serious health concerns, if Cole's treatment needs were "closely managed," he could be expected to survive for a "number of years". (Doc. 73, Ex. D, Deposition of Dr. Erik Von Kiel, at 45) Nevertheless, there are facts in the record to suggest that Cole's medical condition was not "closely managed," and that Cole's serious health problems were, in some instances, either ignored, not taken seriously, or inadequately addressed by Dr. Von Kiel and other medical staff at the prison.

In this regard, the record reveals that Troy Cole suffered what appears to have been a precipitous physical decline during the three weeks he was housed at York County Prison, beginning shortly after his arrival. Medical records and other documents compiled in this action indicate that during his incarceration, Cole suffered from increased potassium levels, with fluid build-up, high blood pressure, and attendant cardiovascular risks. (Doc. 73, Ex. D, Von Kiel Dep. at 16-18; Ex. M, at 4) Additionally, on October 12, 2008, less than one week after arriving, Cole suffered a seizure at the prison following several days of elevated blood pressure, requiring that he be hospitalized for two days. Upon Cole's discharge, doctors expressly prescribed him a low-sodium renal diet. (Doc. 73, Ex. H) However, there is evidence in the record that shows Cole was not provided with a low-sodium renal diet at the prison, but was repeatedly provided with foods, such as peanut butter, that are toxic for individuals with end-stage renal disease.

During his incarceration, Cole was receiving dialysis treatments from an outside provider, Wellspan Dialysis. Records from Wellspan indicate that throughout the period of time Cole was receiving dialysis treatments during his incarceration, he suffered from elevated blood pressure, high potassium levels, and pronounced anxiety related, at least in part, to his withdrawal from opiates and the discontinuance of his methadone treatment. (Doc. 73, Ex. I) These records also reveal that Cole's final four dialysis treatments were aborted before completion, apparently at Cole's insistence. Included within Cole's treatment notes are observations that Cole's diet and withdrawal from opiates was adversely affecting his ability to complete and benefit from dialysis treatments.

Records from Wellspan indicate that Cole complained during his dialysis treatments that his withdrawal symptoms were adversely affecting his ability to complete his dialysis treatments. Thus, on October 16, treatment notes indicate that Cole "stated he was 'wigging out' due to methodone [sic] w/d". (Doc. 73, Ex. I) Notes taken the same day indicate that prison guards who accompanied Cole to his dialysis treatment were attempting to encourage him to work through his withdrawal, and that Cole was informing those around him that he was "coming off" oxycodone, heroin, and methadone. (Id.)

Wellspan treatment records from October 18, 2008, indicate that Cole's treatments were once again aborted after two hours, pursuant to his insistent demands that treatment be discontinued. (Id.) The same notes state that Cole arrived late for his treatment on that day, with Cole representing that "[the] guards forgot I had to come." (Id.)

On October 21, 2008, Wellspan treatment notes reflect that providers were concerned over Cole's elevated potassium levels, and Cole was reminded of the importance of avoiding foods high in potassium and to keep his potassium levels within normal limits. (Id.)

Cole's final dialysis treatment at Wellspan was on October 25, 2008, and was discontinued in accordance with Cole's demands. (Id.) On this date, Wellspan medical professionals expressed specific concern about Cole's diet at the prison. Specifically, Wellspan medical providers became troubled when they learned that Cole was "repeatedly given peanut butter products for lunch," and accordingly a nurse with Wellspan spoke to a corrections officer to advise him of Cole's nutritional restrictions.*fn5 (Id.) These documents reflect that a nurse informed a prison guard about her concerns, and provided him with informational materials to take back to the prison regarding Cole's dietary needs after the guard informed the nurse that "there [was] no nutritional person [at the prison] for special diets." (Id.)

Following this treatment session, Cole's medical condition declined even more rapidly. Thus, two days later, Cole began a "clinical devolution" while incarcerated at the prison. (Doc. 73, Exs. A, K, and M) At 6:40 a.m. on October 27, Cole told Nurse Kimberly Heim that he could not complete his dialysis because he was "wigging out". (Doc. 73, Ex. B, Nursing Assessment) At that time he was complaining of a headache and having "fluid on [his] lungs". (Id.) Defendant Heim observed that Cole had periorbital edema, a blood pressure reading of 230/150 and a pulse of 96 beats per minute.*fn6 (Id.) Nurse Heim noted that Cole was short of breath and was wheezing.*fn7 (Id.) Nurse Heim also commented that Cole had "asked 3 times this shift for separate types of meds." (Id.) In response, Nurse Heim provided Cole with Tylenol. (Id.) She also testified that she thought Cole might be faking or manufacturing his symptoms. (Id. at 86)

At 4:30 p.m. on October 27, 2008, Cole was again brought before Nurse Heim, complaining of shortness of breath, and presenting with a blood pressure of 182/118, which Plaintiff's expert found to be "highly elevated". (Doc. 73, Ex. K, at 4) Cole was returned to his cell. (Id.)

Two hours later, Cole was once again brought to the medical area, complaining that his heart was fluttering and that he was experiencing shortness of breath. (Id., at 5) At this time, Cole's blood pressure had once again spiked and was "severely elevated" at 248/126. (Id.) Following this visit to the medical area, Nurse Heim contacted Dr. Von Kiel to inform him about Cole's shortness of breath. (Doc. 73, Ex. D, Von Kiel Dep., at 42-45) Dr. Von Kiel ordered the administration of oxygen. (Id.) According to Dr. Von Kiel, this is the only instance when Nurse Heim informed him about Cole's shortness of breath or medical concerns on October 27. (Id.) Indeed, Dr. Von Kiel claims that Nurse Heim never informed him about any of Cole's vital signs, and he attested that he would have ordered "close monitoring" of Cole had he been informed about his deteriorating condition. (Id., at 43-45) However, Dr. Von Kiel did not testify that he inquired into Cole's vital signs, and even testified that he may have considered Cole's severely elevated blood pressure to be the product of anxiety and, hence, "not an accurate blood pressure".*fn8 (Id.) Notwithstanding Dr. Von Kiel's authorization for Cole to be provided with oxygen, nobody provided Cole with an oxygen tank until 11:00 p.m. on October 27. (Doc. 73, Ex. C, Deposition of Kimberly Heim, at 84-86)

At 8:00 p.m., Nurse Heim testified that she heard Cole crying out that he was "dying", but she cannot recall whether or not she responded to his cries. (Id., at 81) Three hours later, Cole was once again brought to see Nurse Heim, complaining of shortness of breath, a rapid heart beat, and presenting with high blood pressure. (Id., at 85) Although Nurse Heim attests that she informed Dr. Von Kiel at this time about Cole's condition, (id., at 88), Dr. Von Kiel denies a second contact, (Doc. 73, Ex. D, Von Kiel Dep. at 40-45). At this time, neither Nurse Heim nor Dr. Von Kiel took steps to provide further treatment or have Cole transported for outside medical attention. Like Dr. Von Kiel, Nurse Heim attested that she questioned whether Cole's symptoms were real, and thought that Cole might have been intentionally creating them. (Doc. 73, Ex. C, Heim Dep. at 86)

Around 11:00 p.m., Cole was provided with a "small, mobile oxygen tank," which had a flow rate of 12 liters per minute, and was ...

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