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Harris v. Arias

United States District Court, Third Circuit

October 24, 2013

JORGE HARRIS, Plaintiff,
v.
FELIPE ARIAS, M.D., et al., Defendants.

MEMORANDUM OPINION

Mitchell S. Goldberg, J.

On May 27, 2005, Plaintiff, Jorge Harris, then an inmate at State Correctional Institution (SCI) Graterford in Montgomery County, Pennsylvania, suffered a serious injury when he was poked in his right eye during a basketball game. On February 5, 2008, Plaintiff was taken to the University of Pittsburgh Medical Center in response to uncontrolled pressure within that same eye. Dr. Evan Waxman tentatively diagnosed Plaintiff with steroid-induced glaucoma and optic nerve damage, and informed him that his vision, which had deteriorated to the point that he was unable even “to count fingers in front of [his] face, ” was permanently lost in that eye.[1]

This lawsuit concerns the care Plaintiff received in the Pennsylvania prison system between those two dates. All defendants, who include several of Plaintiff’s treating physicians, as well as Prison Health Services, Inc., now move for summary judgment. They argue that Plaintiff’s claims are barred because he failed to exhaust his administrative remedies, because he did not file his complaint prior to the expiration of the statute of limitations, and because discovery has failed to produce evidence to support his claims. For the reasons discussed below, with the exception of a few claims that Plaintiff concedes are insufficient to go forward, Defendants’ motions will be denied.

I. Factual Background and Procedural History

The following facts are set forth in the light most favorable to Plaintiff, the non-moving party. Because the merits of Plaintiff’s claims are at issue with respect to only two defendants— Dr. Randall Bell and Prison Health Services—the following summary is not a full discussion of Plaintiff’s treatment, but pertains only to those facts necessary to decide the current motion, or to provide context.

Immediately after being poked in the eye on May 27, 2005, Plaintiff was taken to the prison dispensary, [2] where inmates with “acute or life-threatening” injuries can be seen. (Arias Br., Ex. D, Stefanic Dep., at 75, 86.) Plaintiff was seen by Dr. Richard Stefanic, a Prison Health Services employee, who noted that Plaintiff was “complain[ing] of pain and blurry vision, ” and sent him to be evaluated at Mercy Suburban Hospital. (Arias Br., Ex. D, Stefanic Dep., at 86-87.) At the hospital, Plaintiff was diagnosed with a scratched cornea and placed on antibiotic eyedrops to guard against possible infection. (Arias Br., Ex. C, Cusick Dep., at 38-39; Arias Br., Ex. G, Harris Dep., at 14-17.) He was then released back to the prison.

Five days later, on June 1, Plaintiff was seen by Dr. Richard Cusick. Dr. Cusick observed some bloodiness in the white of Plaintiff’s eye, and Plaintiff complained of photophobia, an abnormal sensitivity to bright light. Otherwise, however, Plaintiff could move the eye fully and had reactive pupils. Dr. Cusick switched Plaintiff from antibiotic eyedrops to antibiotic ointment, and gave Plaintiff a pass to the dispensary where he could apply ice to his eye several times a day, but otherwise left the treatment regimen unchanged. Dr. Cusick also ordered that Plaintiff be seen by an ophthalmologist at the next clinic held on-site at the prison. The importance of this order was emphasized by the double-underlining of the word “next.” Despite this order, Plaintiff had not seen the ophthalmologist before Dr. Cusick saw him again two weeks later. At that time, Dr. Cusick indicated that Plaintiff’s eye was improving slowly, though some complaints of photophobia and “floaters” (spots in the visual field) remained. Plaintiff was ordered to continue to “protect” the eye and apply ointment, and return to the clinic in six weeks. (Arias Br., Ex. C, Cusick Dep., at 39-40, 42, 44-50.)[3]

Plaintiff’s six week follow-up occurred on July 29, 2005, with Dr. Caleb Nwosu. (Arias Br., Ex. E, Nwosu Dep., at 64.) Again, despite Dr. Cusick’s earlier orders, and despite the fact that ophthalmology clinics were held at Graterford once or twice a month, Plaintiff had still not been seen by an ophthalmologist in the prison. (Arias Br., Ex. I, Bell Dep., at 23-24.) Dr. Nwosu noted that Plaintiff complained of severe headaches when exposed to bright lights, but observed that the eye was “clear, ” without redness or discoloration. (Arias Br., Ex. E, Nwosu Dep., at 64-66.) At deposition, Plaintiff testified that in the weeks following his injury he suffered from blurry vision and photophobia, along with headaches that he described as “constant pressure.” (Arias Br., Ex. G, Harris Dep., at 18-20, 32.) Dr. Nwosu ordered an ophthalmology referral. As he understood the Prison Health Service’s policies, this was accomplished by “writ[ing] an order referring [the inmate] to a specialist, and then the order is taken out and the people that handle it will arrange the appointment.” (Arias Br., Ex. E., Nwosu Dep., at 42.)

On August 30, 2005, more than three months after his initial injury, Plaintiff was examined by Dr. Randall Bell, the first time an ophthalmologist had evaluated his eye at Graterford. (Arias Br., Ex. I, Bell Dep., at 43.) Dr. Bell recorded his initial impressions as “traumatic cataract with anisocoria, iris irregular, ? old traumatic, T. [meaning traumatic] glaucoma.” (Arias Br., Ex. N, Bell 8/30/05 Consultation Record.) Dr. Bell testified that the word “traumatic” standing alone was a reference to “traumatic neuropathy, ” which in his view would have been apparent to another doctor reviewing the chart. (Arias Br., Ex. I, Bell Dep., at 46-49.) The reason for this diagnosis was that Plaintiff’s “right [optic] nerve showed significant damage.” (Arias Br., Ex. I, Bell Dep., at 46-49.) Dr. Bell prescribed Pred Forte eyedrops (a corticosteroid) as well as Xalatan eyedrops, the latter drug being used to reduce intraocular pressure (IOP). (Arias Br., Ex. N, Bell 8/30/05 Consultation Record.) Dr. Bell testified that Pred Forte was prescribed because Plaintiff had symptoms consistent with traumatic uveitis (inflammation), but acknowledged that he did not record this potential diagnosis in Plaintiff’s chart. (Arias Br., Ex. I, Bell Dep., at 50-51.) Also of significance, Dr. Bell testified at deposition that Plaintiff’s eyes exhibited a “reverse Marcus Gunn phenomena with the pupil, ” in which his right pupil did not react to light, an indication of optic nerve damage. (Arias Br., Ex. I, Bell Dep., at 45-47.) Although this finding was not specifically recorded in Plaintiff’s chart, Dr. Bell testified that “the anisocoria covers that.” (Arias Br., Ex. I, Bell Dep., at 47-48.)

Regarding the Pred Forte drops, Dr. Bell testified that the “significant complications” included that it could “stimulate growth of the herpetic virus, ” “worsen cases of corneal ulcer, ” or “cause a rise in intraocular pressure in patients that we call steroid responders.” (Arias Br., Ex. I, Bell Dep., at 53.) Because of these possible side effects, he explained that if the Pred Forte fails to improve the condition within two days, the patient should be reevaluated. Dr. Bell also acknowledged that some literature suggested that use of Pred Forte for longer than ten days requires routine monitoring of intraocular pressure. (Arias Br., Ex. I, Bell Dep., at 51-52.) He further indicated that there are “no circumstances” under which he would prescribe Pred Forte for 180 days, and that his normal practice would be to prescribe if for between 30 and 60 days. (Arias Br., Ex. I, Bell Dep., at 59-60.) Despite this acknowledgment, the order Dr. Bell wrote for August 30, 2005, which was co-signed by Dr. Felipe Arias, the site medical director at the time, included the notation “X 180 days, ” indicating a six-month prescription.[4] (Arias Br., Ex. N, Physician’s Order Sheet, Entry 8/30/05.)

Along with the medications, which Plaintiff began using, Dr. Bell ordered a return visit in two months, and Plaintiff saw him again on October 4, 2005. This time, Dr. Bell did note “uveitis, ” along with “glaucoma, ” but otherwise his diagnosis remained the same. (Arias Br., Ex. I, Bell Dep., at 69.) He re-ordered Pred Forte and Xalatan, and Dr. Arias co-signed an order prescribing the drugs for 180 days. (Arias Br., Ex. N, Physician’s Order Sheet, Entry 10/4/05.) Dr. Bell recommended a return visit in four months. (Arias Br., Ex. I, Bell Dep., at 69.)

Plaintiff was next seen on December 2, 2005 by Dr. Nwosu, in response to lab results that indicated increased creatinine levels, an indication of possible kidney problems. (Arias Br., Ex. E, Nwosu Dep., at 80-81.) Plaintiff had no kidney-related complaints, however, and instead tried to focus the discussion on the worsening condition of his eye. Dr. Nwosu did not conduct an eye exam, or refer Plaintiff to a specialist at that time. (Arias Br., Ex. E, Nwosu Dep., at 80-81.)

Plaintiff’s next visit to a doctor in the prison was with Dr. Nwosu on March 17, 2006, where he complained of worsening photophobia and said that the eyedrops were not helping. (Arias Br., Ex. E, Nwosu Dep., at 92-94.) Prior to seeing the doctor, a physician’s assistant noted: “Patient visibly upset. States that he was supposed to see specialist mid-February and states has not seen anyone.”[5] (Arias Br., Ex. E, Nwosu Dep., at 95.) Dr. Nwosu then noted that, although the inside of Plaintiff’s right eye was bloodshot, there was no visible swelling. (Arias Br., Ex. E, Nwosu Dep., at 97.) He prescribed cleansing eyedrops, reassured Plaintiff that his condition was not serious (probably a broken blood vessel), and told him to follow up as needed. (Arias Br., Ex. E, Nwosu Dep., at 98.) Dr. Nwosu also noted that Plaintiff had an optometry appointment scheduled for March 27, 2006. (Arias Br., Ex. E, Nwosu Dep., at 99.) At the optometry appointment, Plaintiff received a referral to Dr. Bell. (Arias Br., Ex. H, Sanders Dep., at 114-16.)

As a result of the referral, Plaintiff saw Dr. Bell on April 25, 2006, almost seven months after his last appointment with that doctor. At that point, Plaintiff was “down to finger counting vision, ” with an intraocular pressure of 24 in his right eye. Dr. Bell circled this number because it was “significantly higher” than any other pressure recorded for Plaintiff, and because it was approaching what might be a “magic number” for someone in Plaintiff’s position, which Dr. Bell viewed as cause for concern. (Arias Br., Ex. I, Bell Dep., at 86, 88-89.) Dr. Bell testified that, at this appointment, he would have “emphasized the severity of the injury” and said that although “I didn’t mention blindness . . . I said this was a very serious injury, [and it is] very threatening to your vision.” (Arias Br., Ex. I, Bell Dep., at 86, 88-89.) Plaintiff, meanwhile, was growing increasingly frustrated about the lack of improvement in his eye, and Dr. Bell’s notes indicate that he was “hostile” and “demanded to know what was wrong with him.” (Arias Br., Ex. O, April 25, 2006 Ophthalmologic Exam Record.) In response, Dr. Bell assured Plaintiff that “these meds [are] best.” (Arias Br., Ex. O, April 25, 2006 Ophthalmologic Exam Record.) During his deposition, Dr. Bell testified that “these meds” referred primarily to Xalatan, and that he was unsure if he reordered Pred Forte on that date because Plaintiff’s condition “was less and less inflammatory and more and more optic neuropathy.” (Arias Br., Ex. I, Bell Dep., at 90.)

Dr. Bell’s diagnoses from the April 2006 visit reflect an increasing alarm over the extent of Plaintiff’s injury. He indicated at deposition that he purposefully included a longer version of his findings because “it was such a severe injury and it had progressed so much, ” that a “more complete record” was necessary.[6] (Arias Br., Ex. I, Bell Dep., at 90.) His impression now was chronic open-angle glaucoma, with possible Posner-Schlossman syndrome. (Arias Br., Ex. O, April 25, 2006 Ophthalmologic Exam Record.) The latter finding was especially curious, in that it was a rare condition that Dr. Bell noted “in retrospect” Plaintiff did not have, [7] but which Dr. Bell also had other reasons for including. According to Dr. Bell: “I also wrote [Posner-Schlossman] down because it’s a great buzz word, and I wanted to make sure if the staff saw this patient, and it was a problem they’d mention Posner-Schlossman, and I’d know that it was Harris, because he was the only one in five thousand inmates that I put down Posner-Schlossman.” (Arias Br., Ex. I, Bell Dep., at 78-79.) Dr. Bell again suggested a return visit in four months. (Arias Br., Ex. O, April 25, 2006 Ophthalmologic Exam Record.) Despite this order, Dr. Bell would not see Plaintiff again for over a year.

Although Dr. Bell was unsure at the time of his deposition whether he had discontinued Pred Forte on April 25, 2006, Plaintiff and the prison medical staff were apparently under the impression that he had not. On June 11, 2006, Plaintiff saw Dr. Nwosu and asked to have his medications renewed. (Arias Br., Ex. E, Nwosu Dep., at 106.) He had no other complaints and Dr. Nwosu renewed both the Pred Forte and Xalatan drops for 180 days. (Arias Br., Ex. E, Nwosu Dep., at 109-10.) When those prescriptions ran out, Plaintiff again returned to sick call for renewal, this time seeing physician’s assistant Frank Masino on January 4, 2007. (Arias Br., Ex. J, Masino Dep., at 85-91.) Masino renewed all of Plaintiff’s medications, including Pred Forte and Xalatan, this time for 210 days.[8] At the time of the January renewal, Plaintiff had not seen Dr. Bell since April 2006, and Masino acknowledged at his deposition that he knew Plaintiff had been on Pred Forte roughly since his 2005 injury, was unaware of the “side effect profile for long-term use” of Pred Forte, and did not consult with any other doctor (including Dr. Bell) prior to writing the renewal order, although the order was co-signed the next day by Dr. Arias. (Arias Br., Ex. J, Masino Dep., at 92-94, 96-97.)

On May 15, 2007, Plaintiff again saw Dr. Bell. According to Dr. Bell: “My impression now is blindness in the right [eye] secondary to uveitis and glaucoma. My disposition is to again restart the Pred Forte[9] and I raised the Xalatan to twice a day, and return in four months.” (Arias Br., Ex. I, Bell Dep., at 103.) Dr. Bell again noted the (incorrect) diagnosis of Posner-Schlossman syndrome. (Arias Br., Ex. O, May 15, 2007 Consultation Record.)

Plaintiff’s final appointment with Dr. Bell was September 18, 2007. His diagnosis was essentially the same as the May 2007 appointment, glaucoma and uveitis, with Dr. Bell again including Posner-Schlossman syndrome. (Arias Br., Ex. O, September 18, 2007 Consultation Record.) When asked at his deposition what his basis was for an impression of Posner-Schlossman, Dr. Bell said “[p]robably no basis. It was just to continue the marking of his records that this was a unilateral glaucoma with evidence of some uveitis and glaucoma.” (Arias Br., Ex. I, Bell Dep., at 111-12.) When asked what steps he took on this date to lower Plaintiff’s intraocular pressure (which was again high), Dr. Bell said that he discontinued Pred Forte on that date. (Arias Br., Ex. I, Bell Dep., at 112.) However, he acknowledged that he took no “affirmative steps” to discontinue the medication, beyond simply not writing it on the order form. When asked why he did not write on the form that Plaintiff should stop using Pred Forte, Dr. Bell responded that “in my opinion it may have been doing some good.” (Arias Br., Ex. I, Bell Dep., at 112.)

About a month after his final appointment with Dr. Bell, Plaintiff was transferred from SCI-Graterford to SCI-Albion to better accommodate his asthma. (Arias Br., Ex. G, Harris Dep., at 121-22, 139.) On February 5, 2008, he was taken to the University of Pittsburgh Medical Center because of uncontrolled intraocular pressure in his right eye. There, according to Plaintiff, Dr. Waxman told him that he would never regain sight in his right eye, that his blindness was the result of prolonged use of corticosteroids, and that, had he been treated properly, at least some of his vision could have been preserved. (Arias Br., Ex. G, Harris Dep., at 126-38.) Dr. Waxman stopped the use of Pred Forte (which Plaintiff had still been taking since his last appointment with Dr. Bell) because “there didn’t appear to be an indication for its use anymore, and “it seemed possible that Pred Forte was responsible for the high pressure” in Plaintiff’s eye. (Arias Br., Ex. K, Waxman Dep., at 52.)

At a follow-up appointment on February 19, 2008, Dr. Waxman noted that Plaintiff’s intraocular pressure had “improved but not enough.” (Arias Br., Ex. K, Waxman Dep., at 66.) He ordered the continued use of drops prescribed at the February 5 appointment, but testified at his deposition that “[i]t’s not uncommon for the prescriptions we provide to the corrections facility to not be followed. It seemed that they weren’t in this case.” (Arias Br., Ex. K, Waxman Dep., at 63.) According to Dr. Waxman’s understanding, at least one of the medications he prescribed at the initial appointment was not provided to Plaintiff at the prison. (Arias Br., Ex. K, Waxman Dep., at 64.) There was similarly no vision change at subsequent appointments at the University of Pittsburgh (which was no surprise to Dr. Waxman). (Arias Br., Ex. K, Waxman Dep., at 68.) Throughout, Dr. Waxman’s diagnoses remained the same: angle-recession glaucoma or steroid-induced glaucoma, along with severe optic nerve damage. (Arias Br., Ex. K, Waxman Dep., at 64.) In layman’s terms, Plaintiff was now permanently blind in his right eye.

On January 26, 2010, Plaintiff delivered his pro se complaint to prison authorities. (Harris Opp. Br., Ex. ...


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