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Balter v. United States

United States District Court, M.D. Pennsylvania

April 7, 2014

RICHARD BALTER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Introduction

The Plaintiff in this matter, Richard Balter, was an inmate at in the United States Penitentiary ("USP") in Allenwood, Pennsylvania from December 1999 until January of 2010. In 1997, Mr. Balter was diagnosed with macular degeneration in his right eye which resulted in the complete loss of vision in his right eye. Sometime in 1999 or 2000, Mr. Balter was diagnosed with macular degeneration in his left eye. The particular type of macular degeneration which afflicts Mr. Balter is the form known as "wet" macular degeneration.

With wet macular degeneration, there occurs an abnormal growth of red blood cells underneath the epithelium of the retina. With this disease, certain waste products are deposited into the retina, called drusen. About ten percent of patients with macular degeneration who have these waste products in the retina form cracks in the retina. Through these cracks, or fissures, blood vessels then grow up from the layer underneath the retina called the choroid. These blood vessels can leak, or bleed, and, in some cases, can burst with a resulting hemorrhage of blood into the retina. The hemorrhage from these new and abnormal blood vessels causes inflammation, scarring underneath the retina and blindness.

Mr. Balter was afforded treatment for his wet macular degeneration by Dr. Roy Tuller of Vitreoretinal Associates P.C. ("VRA") and received steroid injections beginning in 2003 with additional steroid injections in January, March and June of 2007. During this period Mr. Balter had four active leaks of blood into his left eye but experienced no vision loss over that four year period, with his left eye's vision remaining at 20/50 to 20/60.

On August 28, 2007, Dr. Tuller saw Mr. Balter as a result of a scheduled offsite visit to Dr. Tuller's offices. Dr. Tuller told Mr. Balter that his eye was beginning to stabilize following the June 2007 injection and that he would schedule a follow-up for him. Dr. Tuller did so. That same day, Dr. Tuller's office notified the administration at the Allenwood Federal Correctional Complex ("FCC") of Dr. Tuller's request that a follow-up examination of Mr. Balter be scheduled within ten weeks of the August 28, 2007 appointment. Dr. Tuller later testified that a window of an additional seven to ten days would have been acceptable.

USP Allenwood took seven weeks, from August 28, 2007 to October 16, 2007, to notify Medical Development International Ltd., Inc. ("MDI")-an entity with which FCC Allenwood had contracted to find medical providers in the area of FCC Allenwood to provide care to inmates and to schedule the appointments for medical care for those inmates with those outside medical providers-of the need to schedule Mr. Balter's appointment with Dr. Tuller. The Bureau of Prisons ("BOP") submitted a form to MDI on October 16, 2007 which indicated that USP Allenwood wanted the appointment within a one month time frame, or on or before November 16, 2007. It was MDI's responsibility to schedule the appointment according to the requested time frame indicated on the form issued by USP Allenwood to it.

Mr. Balter's appointment was scheduled for December 11, 2007, outside of the time frame requested by USP Allenwood and outside of the ten week request of Dr. Tuller.

During the same time period, Mr. Balter had been on an "automatic call-out" list which permitted him to see the optometrists who came to USP Allenwood twice a month. On September 26, 2007, an optometrist ordered that Mr. Balter was to have his intraocular pressure ("IOP") tested every month by an optometrist. In November 2007, Mr. Balter was inexplicably removed from the automatic call-out list and did not see an optometrist despite the fact that one visited USP Allenwood on November 7, November 14 and November 22, 2007. Although not qualified to treat macular degeneration, the optometrists that visited the prisoner were qualified to identify the presence of any leakage or bleed in Mr. Balter's left eye and had done so previously.

On December 5, 2007, over fourteen weeks after Mr. Balter's August 28, 2007 appointment, Mr. Balter visited Dr. Tuller's office on an emergency basis. That morning, Mr. Balter was scheduled to be seen by an optometrist, Dr. David DeRose, at USP Allenwood. Dr. DeRose identified a"fresh leak" in Mr. Balter's left eye and directed that Mr. Balter should "see Dr. Tuller ASAP." Mr. Balter was then seen that same day by Dr. Tuller's associate, Dr. Lightman, who identified a massive hemorrhage in his left eye and complete loss of central vision.

On July 20, 2009, Mr. Balter initiated the instant action against the Government pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 and 28 U.S.C. § 2671, et seq. , and MDI based upon diversity of citizenship pursuant to 28 U.S.C. § 1332. (Compl., Doc. 1, at ¶¶ 4, 6). Mr. Balter filed timely Certificates of Merit (Docs. 5; 6) pursuant to PA. R. CIV. P. 1042.3(a). By Order dated March 28, 2011, MDI was granted leave to join Roy E. Tuller, D.O., VRA and the Retinal Group of Pa., P.C., as Third Party Defendants. (See Doc. 63). Thereafter, Mr. Balter and MDI resolved Mr. Balter's claim against MDI on December 6, 2012, ( see Doc. 111), and MDI in turn agreed to voluntarily discontinue its claims against the Third Party Defendants, ( see Docs. 91; 112).

The remaining parties, Mr. Balter and the Government, filed pretrial memoranda on January 23, 2013. (See Docs. 124; 126). On February 25, 2013, the parties filed a forty-nine page document titled "Amended Comprehensive Statement of Agreed Upon Facts Submitted by the United States and Richard Balter" ("CSF") containing 338 numbered paragraphs. ( See Doc. 132). The undersigned conducted a bench trial which commenced on February 26, 2013 and ended on February 28, 2013. The Court heard live testimony from the following witnesses:

1. Plaintiff Richard Balter, an inmate at USP Allenwood from December 1999 until January of 2010, ( see CSF at ¶ 2);
2. Ron Laino, Health Service Administrator over the FCC Allenwood Complex from 2005 until his retirement in 2011, ( see id. at ¶ 42);
3. Kelly Auman, Health Information Technician at FCC Allenwood between 1998 and June 2008, ( see id. at ¶ 61, 63-64);
4. Kelley DeWald, Assistant Health Services Administrator at Allenwood since December 2003 or December 2004, (see id. at ¶ 88);
5. Lisa Rey, "Medical Records Technician at USP Allenwood since 2002, " ( see id. at ¶ 70);
6. Dr. Matthew Goren, Mr. Balter's medical expert, ( See Trial Tr., Goren, Day 2, at 79:20-80:2); and
7. Dr. Adam Paul Beck, the Government's medical expert, ( See Trial Tr., Beck, Day 3, at 7:11-21).

In addition, the Court received video deposition testimony from Dr. Roy Tuller, Mr. Balter's primary ophthalmologist while he was incarcerated at USP Allenwood, ( see Trial Dep. Tr., Tuller, Doc. 139, Pl.'s Ex. 37; see also CSF at ¶¶ 167-168), and his partner Dr. David Lightman, who saw Mr. Balter twice in 2007-including on December 5, 2007, ( see Trial Dep. Tr., Lightman, Doc. 139, Pl.'s Ex. 39; see also CSF at ¶¶ 208, 211).

The issues which this Court must resolve may be stated as follows:

A. Has Mr. Balter proved that the failure of the Government and/or MDI to schedule him for his follow-up examination by Dr. Tuller within the period prescribed by Dr. Tuller for such follow-up examination establishes negligent conduct under principles of ordinary negligence?

B. Has Mr. Balter proved that the Government was negligent in failing to arrange for Mr. Balter to be seen at USP Allenwood by one of the two optometrists who came to USP Allenwood on November 7, 14 and 22 by removing him from the automatic call-out list?

C. If Mr. Balter has proved negligence on the part of the Government and/or MDI, did such negligence increase the risk of harm to Mr. Balter-specifically, did such negligence cause any bleed or hemorrhage which may have occurred to go unnoticed and untreated until he was seen on December 5, 2007 by Dr. DeRose, who directed that Mr. Balter be sent to an ophthalmologist "ASAP"?

D. If Mr. Balter has proved negligence on the part of the Government and/or MDI, was such negligence a factual cause of the hemorrhage Mr. Balter sustained to the macula of his left eye which caused his vision to be reduced from 20/50 to 20/400?

E. If Mr. Balter has proved negligence on the part of the Government and/or MDI and has further shown that such negligence was factual cause of the hemorrhage in the macula of his left eye, to what damages is Mr. Balter entitled?

Because Mr. Balter has proven all of the elements of his ordinary negligence claims, judgment will be entered in favor of the Plaintiff.

II. Findings of Fact

At the outset, the Court adopts the CSF. Many of the facts from the CSF are specifically incorporated below. The rest are incorporated insofar they are consistent with the findings below.

A. Background Facts

1. Mr. Balter was born on October 20, 1946 and was sixty-six years old at the time of trial. (CSF at ¶ 1).

2. On September 14, 1994, United States District Court for the District of New Jersey sentenced Mr. Balter to a term of life imprisonment. See United States v. Balter, Crim. A. No. 93-00536 (D.N.J. 1994), aff'd, 91 F.3d 427 (3d Cir. 1996).

3. While incarcerated in USP Lewisburg, sometime between 1994 and 1996, Mr. Balter "[w]as diagnosed with macular degeneration in his right eye." (CSF at ¶ 3).

4. In 1997, his condition rendered him legally blind in his right eye. ( See Trial Tr., Balter, Day 1, at 25:12-14).

5. Eventually, Mr. Balter was transferred to UPS Allenwood, where he was housed from December 1999 until January of 2010. ( See CSF at ¶ 2).

6. Mr. Balter "[w]as diagnosed with macular degeneration in his left eye in 1999 or 2000 while incarcerated" at USP Allenwood. ( Id. at ¶ 4).

7. Although he experienced several leakages between 2003 and 2007, Mr. Balter was able to maintain his baseline vision of 20/50 to 20/60. (Trial Dep. Tr., Tuller, Doc. 139, Pl.'s Ex. 37, at 31:2-10). Mr. Balter is currently incarcerated at FCI Beaumont. (CSF at ¶ 2).

B. Wet Macular Degeneration

Understanding Mr. Balter's negligence claim requires background information about the nature of macular degeneration and how medical services at UPS Allenwood are administered.

8. "Mr. Balter has age related macular degeneration, " a disease that "progresses and develops as a person ages" and can lead to vision loss. (CSF at ¶ 169; see also Trial Tr., Goren, Day 2, at 80:7-81:5).

9. "[M]acular degeneration is a disease that affects a very specific part of the retina called the macula, which is the central part of the retina where central vision is processed." (Trial Tr., Goren, Day 2, at 80:7-10).

10. "[T]here are two types of macular degeneration, ... wet and... dry macular degeneration. Dry [macular degeneration] is a very slow gradual process. Everyone [with macular degeneration] will start with dry type, and perhaps 10% will progress to the wet type." (CSF at ¶ 170).

11. "What distinguishes dry from wet [macular degeneration]... is the formation of new and abnormal blood vessels that occur underneath the retina within the macula. The problem with these blood vessels is that they leak and they bleed abnormally.... [Ultimately, ] when this happens, there's fluid that accumulates underneath the retina, causes inflammation, causes damage, and... can be a very aggressive condition that can and does lead to blindness." (Trial Tr., Goren, Day 2, at 80:20-81:5).

12. Wet, as opposed to dry, macular degeneration "is [a] more serious condition with regard to prognosis" as "[t]here... can be... sudden loss of vision" with wet macular degeneration. (CSF at ¶ 171).

13. "[W]hen one has wet macular degeneration, dramatic leakage can happen instantly." ( Id. at ¶ 174).

14. "[W]et macular degeneration is an unpredictable condition." ( Id. at ¶ 175).

15. "Hemorrhages can happen suddenly and without warning." ( Id. at ¶ 176).

16. Moreover, "a person who loses central vision in one eye due to wet macular degeneration is at a 5% higher risk per year, " and "[t]he risk would increase 5% every year moving forward once you lose vision in one eye due to macular degeneration." ( Id. at ¶ 173).

17. With wet macular degeneration, there is no treatment that can "cure the underlying disease process; [doctors] can only act or react to occurrences of leakage or bleeding" but cannot "eliminate the risk of hemorrhage, even with treatment." ( Id. at ¶ 172).

18. In order to prevent the progression of the disease, one treatment option is injections of "vascular endothelial growth factor inhibitors" which are "administered directly into the eye." (Trial Tr., Goren, Day 2, at 81:19-22, 82:19-21).

19. However, "even with timely injections, a person with wet macular degeneration can have loss of central vision." (CSF at ¶ 180).

C. UPS Allenwood's Medical Care Delivery System

20. UPS Allenwood is one of three institutions that encompass the FCC Allenwood Complex. ( Id. at ¶ 42).

21. "In 2007, the Allenwood Complex had 4, 500-5, 000 inmates at any given time." ( Id. at ¶ 43).

22. "Beginning in 2005, until the time of his retirement in 2011, Ron Laino was Health Service Administrator" ("HSA"), who oversaw the administration of medical services of the Allenwood Complex. ( See id. at ¶ 42).

23. Below the HSA is the Assistant Health Services Administrator ("AHSA"). ( See id. at ¶¶ 88-89). Kelley DeWald has been the AHSA since December 2003 or December 2004. ( See id. at ¶ 88).

24. Separate from "the health service administrator, assistant health service administrator, [and] the administrative side of the medical department at the Allenwood Complex, " is the Clinical Director. ( See id. at ¶ 143).

25. "The clinical director overs[ees] all the other medical providers at the Allenwood Complex." ( Id. at ¶ 142).

26. "Dr. Brady was clinical director at Allenwood in 2007." ( Id. at ¶ 109).

Mainline

27. When inmates gather to eat their meals, extra prison officials "stand main line." ( See Trial Tr., Laino, Day 1, at 111:13-24). As Ron Laino explained,

The purpose of main line is two-fold. One to provide security there, since... there's a large amount of inmates.... The second one is to field any questions that the inmate might have. It's a lot easier to address a concern that the inmate may have, instead of going down the paper route in the sense of responding to inmate complaints via paper or responding to a complaint that you have to respond to for the Warden, so it's a lot easier to talk to the inmate, find out what his complaint is, and address it right then and there.

( Id. ).

28. "Warden Martinez or someone on behalf of the Warden, the Assistant Warden ["AW"] or someone on behalf of the Assistant Warden, and Kelley DeWald or someone from medical were always at mainline." (CSF at ¶ 7).

29. "Inmates could voice complaints or bring up issues with Department heads at main line." ( Id. at ¶ 93).

30. When Laino's office was located in USP Allenwood, he was primarily responsible to stand main line. ( See Trial Tr., Laino, Day 1, at 110:21-111:11; Trial Tr., DeWald, Day 2, at 11:10-20).

31. "Mr. Laino['s] office moved to a Medium institution [within the Allenwood Complex] sometime in 2005, " and Kelley DeWald became the primary medical representative to stand main line. ( See Trial Tr., DeWald, Day 2, at 1110-22).

32. As a result, Kelley DeWald became "responsible to stand main line every day." ( See id.; CSF at ¶ 93).

33. However, even after "Ron Laino's office was located at the Medium [institution, ]... he would visit USP Allenwood approximately once a week." (CSF at ¶ 44). "When at USP Allenwood, " Laino "would visit the segregation unit and stand mainline." ( Id. at ¶ 45).

Sick Call

34. "(E]ach morning at USP Allenwood, except for Wednesdays, " there is what is known as "sick call" ( See id. at ¶¶ 8, 97).

35. Sick call affords inmates an opportunity to consult a medical provider. ( Id. at ¶¶ 8, 97, 116).

36. Sick call "is where most requests to clinical staff would happen[, ]... includ[ing] anything from refilling medications to appointments." ( Id. at ¶ 116). 37. "Every other day, at 6:00 in the morning when their unit is released for mainline, inmates [are permitted to] come to Health Services and sign up for sick call" ( Id. at ¶ 97).

38. Inmates come to the window at sick call, give [the Health Services staff] their ID card[, ] and they take a seat until they are called by the provider." ( Id. at ¶ 72).

39. "There are no restrictions for inmates going to sick-call with problems, " and "[i]nmates are free to go to sick-call at any time and wait to be seen by a PA [Physician Assistant]." ( Id. at ¶¶ 85, 86).

40. "The inmates had a lot of freedom in terms of accessing health services. An inmate could come up every day if he was having a particular issue...." ( Id. at ¶ 126.) There are "[u]sually around 4 PA's on duty at sick call" ( Id. at ¶ 99).

41. "In terms of coming to sick call in the morning, if an inmate is not getting a response from one of the PAs, there is always someone else there." ( Id. at ¶ 127).

42. "One at a time [inmates] would come in[, ]... be evaluated by the PA, [and] tell them their problem[s]. The PA would triage them. If their problem was serious enough, they would be seen at that time. If not, they'd be given a date at a later time to be seen by their PA." ( Id. at ¶ 97).

43. "It used to be that [a PA] would give [an inmate] a medical slip to come back at a different time.... Now, most of the time[, inmates are] put on a call out list, a piece of paper [prison officials] send around in the evening indicating when [the inmate is] supposed to go the following day." ( Id. at ¶ 8).

Eye Care

44. As a general matter, "the BOP is sensitive about people having eye issues." ( Id. at ¶ 135).

45. According to Dr. Brady, if an inmate was at risk of going blind, "[t]he BOP would try to do everything to maintain his vision. The last thing we really want to have in the BOP is somebody that is so impaired they're going to need to have extra attention." ( Id. at ¶ 137).

46. "No optometrist or any eye specialist would be present at sick call" ( Id. at ¶ 163).

47. Because "[e]ye care is specialized, Dr. Brady would do eye exams and sometimes prescribe drops and things for infections, but beyond that, [BOP] would refer to optometrist[s] and ophthalmologist[s]." ( Id. at ¶ 124).

48. In order to receive eye care, inmates ordinarily would have to wait until an independent contractor optometrist visited USP Allenwood. ( See id. at ¶¶ 69, 124, 163).

49. "Dr. DeRose... along with Dr. Weyand would go to USP Allenwood twice a month" as independent contractor optometrists. ( Id. at ¶ 286).

50. However, "Dr. DeRose would make additional trips if there was an emergency." ( Id. at ¶ 287).

51. "Inmates were always scheduled before seeing the optometrist when they came onsite." ( Id. at ¶ 160).

52. Although "[t]here [we]re times when Dr. DeRose went to the institution and saw inmates that were not on the original call out list[, ]... [so-]called add-ons, " ( id. at ¶ 296), generally, the optometrists would only see those inmates who were on the call-out list, ( id. at ¶¶ 326-327).

53. "Dr. DeRose and Dr. Weyand do not make the call out list." ( Id. at ¶ 320).

54. According to Dr. DeRose, "[i]t's just somebody puts [inmates] on the list, and we see them.[']" ( See id. at ¶ 320).

55. "To Dr. DeRose's recollection, there was not a time between August 2007 and December 2007 where he did not see an inmate that was on the call out list." ( Id. at ¶ 331).

56. "An inmate could not just walk in and see the optometrist at the prison." ( Id. at ¶ 326).

57. Instead, inmates would have to request that Kelly Auman place them on the call out list. ( See id. at ¶¶ 69, 334).

58. Kelly Auman was the administrator at USP Allenwood responsible for scheduling inmates with an optometrist. (Trial Tr., Auman, Day 1, at 159:13-20).

59. "Kelly Auman was the health information technician that worked with the optometrist most of the time." (CSF at ¶ 333).

60. Typically, once Mr. Balter would make a request to see an optometrist, "Kelly Auman would refer to any supervisor[, ] and [the supervisor] would say schedule him to see an optometrist." ( See id. at ¶ 69).

61. Ms. Auman was also responsible for maintaining the call out list. ( See Trial TL, Auman, Day 1, at 159:23-25, 160:1-5). Decisions as to which inmates are to be placed on the call out list are made by either "the clinician, the physician, physician assistant, or [the health service administrator]." (See Trial Tr., Laino, Day 1, at 115:8-11).

62. "For a long period of time[, ] Mr. Balter was automatically placed on the call out list [to be seen by an optometrist] twice a month." ( See CSF at ¶ 338).

63. By virtue of being on the automatic call out list, inmates with "certain medical diseases, macular degeneration being one, " would be "seen frequently by the optometrist, just for close monitoring." ( See Trial Tr., Laino, Day 1, at 115:1-7).

64. As Mr. Balter explained, being on the automatic call out list enabled him to consult an optometrist every time one came to USP Allenwood without having to sign up for sick call the night before, like other inmates. ( See Trial Tr., Balter, Day 1, at 30:12-25).

65. However, even during sick call, inmates do "not have access to Kelly Auman's office." ( See CSF at ¶ 102).

66. "Ms. Auman's office was probably the most removed from the waiting area and main corridor where inmates were. The doors to get back there are locked[, ] and an inmate would have to be escorted by someone and brought back into the department." ( Id. at ¶ 117).

67. Because "the eye room is next door to the PA's rooms, ... [an inmate] could have gone to the PA... [to] be put on list to be seen." ( See id. at ¶ 295).

68. "If an inmate has requested to be placed on a call out list and has allegedly been told that he was on the call out list, the inmate has followed the appropriate steps to ensure that he will be seen by the optometrist." ( Id. at ¶ 165).

69. Ultimately, "[i]t would be the prison's responsibility to have [an inmate] on the call out list for the next clinic." ( See id. at ¶ 330).

70. "If Mr. Balter had complained to Dr. DeRose" that he had requested to be seen by the optometrist and that "those requests [were] not being granted, Dr. DeRose would not document that on the eye exam form or any other document." ( Id. at ¶ 329).

71. "If Dr. DeRose saw an inmate at USP Allenwood who had issues or complications with wet macular degeneration, he would refer the inmate to a retinal specialist or an ophthalmologist." ( Id. at ¶ 305).

72. There are no ophthalmologists on-site at USP Allenwood. ( See Trial Tr., Laino, Day 1, at 122:10-16).

73. "In the prison system, there are not a lot of options for treating wet macular degeneration.... [D]uring the disease process, ... it's all out of the optometrist's hands. The optometrists refer the inmate out for treatment of wet macular degeneration." (CSF at ¶ 307).

74. "Other than ophthalmoscopies, looking in the eye and seeing [that an inmate's] got a leak... [Dr. DeRose and Weyand] don't have any equipment" to treat wet macular degeneration. ( See id. at ¶ 308).

Utilization Review Committee

75. In order to be scheduled for a medical appointment outside of USP Allenwood, the Utilization Review Committee ("URC") would have to first authorize the appointment. ( See id. at ¶¶ 98, 146).

76. The Clinical Director is the "chair of the URC" and has "final authority for all URC decisions." ( Id. at ¶ 112). As Clinical Director, Dr. Brady was the chair of the URC "at [the] Allenwood Complex in August through December 2007." ( See id. at ¶ 144).

77. "Dr. Brady would decide what inmates could go for offsite medical appointments, but it was up to security to decide who went, when, where and why." ( Id. at ¶ 147).

78. "Typically, the [FCC Allenwood] complex would have 8-10 inmates going out per day, with 2 of those inmates being from USP [Allenwood], unless there was an emergency." ( Id. at ¶ 48).

79. "The [URC] would suggest atimeframe for medical treatment." ( Id. at ¶ 148).

80. "If an offsite treating physician requested a specific timeframe for follow up treatment, the utilization review committee would generally go along with that requested timeframe." ( Id. at ¶ 149).

81. "If an offsite doctor had an inmate patient with wet macular degeneration who needed to be seen in ten weeks for follow up, Dr. Brady would want him to be seen in ten weeks." ( Id. at ¶ 150).

82. "There would usually be a note that came back with the inmate patient about what happened at the offsite medical appointment." ( Id. at ¶ 151).

83. "The note would be converted into a consultation form usually by a prison nurse or EMT around the same time the inmate patient returned to the prison." ( Id. at ¶ 152).

84. "Lisa Rey does paperwork at URC meetings." ( Id. at ¶ 74).

85. "A consult that was approved would be given to Mrs. Rey, " the Health Information Technician. ( See id. at ¶¶ 100, 113).

86. "Lisa Rey takes the consult forms that are approved at URC, goes back to her desk and creates an [offsite referral] ["OSR"] and[, ] in doing so, ... puts in the specific instructions on what needed to be scheduled." ( Id. at ¶ 76).

87. "Lisa Rey would create an OSR within a day or two, at most, from receiving the consult from the URC." ( Id. at ¶ 78).

88. Ms. Rey would then send the OSR to MDI for scheduling. ( See id. at ¶ 113).

MDI

89. "In 2007[, ] MDI had a contract with FCC Allenwood to provide scheduling services for USP Allenwood." ( Id. at ¶ 38).

90. "Prior to MDI, each separate institution [in the Allenwood Complex] would have their own scheduling person." ( Id. at ¶ 47).

91. "MDI was a middleman." ( Id. at ¶ 46).

92. "Under the contract with FCC Allenwood, it was MDI's responsibility to find medical providers and/or physicians in the area of FCC Allenwood to provide care to inmates." ( Id. at ¶ 17).

93. "In August 2007, Vida Hall was the MDI scheduler for USP Allenwood." ( Id. at ¶ 20).

94. "Brandon Fairbanks became the MDI scheduler for USP Allenwood in late November or early December of 2007." ( Id. at ¶ 21).

95. "Lisa Rey would get an e-mail from Brandon Fairbanks, an MDI scheduler, letting her know when appointments were scheduled." ( See id. at ¶ 80).

96. "At times[, ] Lisa Rey would have to contact Brandon Fairbanks, an MDI scheduler, via e-mail and say [']l still have these consults pending, can you let me know if they are getting scheduled.[']" ( Id. at ¶ 82).

97. "MDI lets Lisa Rey know when an appointment is scheduled[, ] and she types up the trip paper work that is routed to unit manager, HSA, AW and Warden for approval." ( Id. at ¶ 83).

98. For security reasons, inmates are not apprised of the dates of their appointments. ( See id. at ¶¶ 40, 147, 220, 229).

99. "Once the OSR is sent to MDI Lisa Rey has no further contact with MDI about an appointment unless there are questions about it." ( Id. at ¶ 79).

100. "The OSR form is then taken with the attached consults[, ] and the medical provider is called." ( Id. at ¶ 27).

101. "The scheduler will schedule the appointment according to the requested time frame that is indicated on the OSR form." ( Id. at ¶ 28).

102. "If the BOP sends MDI an OSR with a time frame that differs from the one requested by the provider, the scheduler will indicate to the provider that the institution has requested a time that differs from the provider and then its decided with the physician if they are going to be able to get the appointment within the institution's time frame." ( Id. at ¶ 29).

103. "The MDI schedulers are trained to provide the medical provider the pertinent information that's listed on the OSR form." ( Id. at ¶ 30).

104. "According to Laurie Zeller, Director of Contract Services for MDI, as a 13-year employee, the section of the OSR that sets forth Pertinent Information' should be communicated to the physician's office when the appointment is being set up." ( Id. at ¶ 31).

105. "As a routine, if a scheduler [from MDI] was told by the scheduler at the physician's office a date that was outside the requested time frame, the scheduler would have said, [']l need it sooner because the [BOP] is asking for a one month time frame.['] At that time, the physician's office would either move it up, if they could, and if their calendar was full, the first available appointment would be scheduled." ( Id. at ¶ 33).

106. "When the MDI scheduler has to schedule the first available appointment, but that appointment is outside the requested time frame, whether or not it would specifically notify the BOP depends on the nature of the appointment. If the OSR is an ASAP and they can't get it scheduled within that week, they would notify the institution. If it is a two week or one month OSR and it can't be scheduled within that timeframe, then it would not be routine to specifically inform the institution." ( Id. at ¶ 39).

107. If MDI "could not schedule a particular appointment within a requested time frame, " HSA Ron Laino "expected MDI to contact Lisa Rey and tell her." ( Id. at ¶ 50).

108. "In past, MDI would contact Ron Laino with scheduling conflicts." ( Id. at ¶ 51).

109. Mr. Laino testified that he was aware of some scheduling issues with MDI and that some inmates were not scheduled for offsite evaluations within the requested time frame made by the prison. (Trial Tr., Laino, Day 1, at 129:24-130:8).

110. Subsequently, MDI put a liaison onsite at USP Allenwood "to improve timeliness of scheduling." (CSF at ¶ 52).

111. "There were situations where follow up appointments with outside providers had to be cancelled or rescheduled due to scheduling conflict issues." ( Id. at ¶ 159).

112. Although "[t]here was always pressure on the prison's calendar to schedule the number of offsite medical trips [, ] there was usually enough availability." ( Id. at ¶ 161).

113. Mr. Laino testified that he believed that the ultimate responsibility for ensuring that off-site appointments are appropriately scheduled resides with the prison. (Trial Tr., Laino, Day 1, at 140:2-5).

VRA

114. "MDI ha[d] a contract with Vitreoretinal Associates... to provide ophthalmological services to inmates at USP Allenwood, " including for the year 2007. ( See CSF at ¶¶ 19, 168).

115. Dr. Tuller and Dr. Lightman are partners at VRA. ( See id. at ¶ 208).

116. Both Dr. Tuller and Dr. Lightman are ophthalmologists that specialize in vitreoretinal diseases. ( See id. at ¶¶ 167, 208).

117. At VRA, "[i]nmates were not scheduled on-site when they left the office, their appointment would be scheduled after they leave." ( Id. at ¶ 229).

118. "Vitreoretinal would fax a fee slip to MDI in late 2007 after an inmate's appointment... to show when the doctor wanted the inmate back" in order to trigger MDI to call VRA "to make the appointment." ( See id. at ¶¶ 230-232).

119. "The [f]ee slip would be sent to MDI on the day of the [inmate's] visit" to VRA. ( Id. at ¶ 233).

120. Aside from the fee slip, VRA would also send MDI "doctor's notes... via regular mail along ...


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