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Heary v. Folino

United States District Court, W.D. Pennsylvania

March 22, 2018

RICHARD HEARY, Plaintiff,
v.
LOUIS S. FOLINO, CORRECT CARE SOLUTIONS, NEDRA GREGO, MS. VIHLIDAL, and DOCTOR JIN, Defendants.

          OPINION AND ORDER ECF NOS. 58, 76

          Maureen P. Kelly Chief Magistrate Judge

         I. INTRODUCTION

         A. Relevant Procedural History

         Richard Heary (“Plaintiff”), a prisoner incarcerated at the State Correctional Institution at Greene, Pennsylvania (“SCI-Greene”), filed this pro se civil rights action on February 2, 2016, alleging that various prison officials and medical providers were deliberately indifferent to his medical needs, in violation of his rights provided by the Eighth Amendment to the United States Constitution. ECF No. 8. This Court subsequently granted Motions to Dismiss filed on behalf of all Defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. The Court granted Plaintiff leave to file an Amended Complaint as to Defendant Dr. Jin, to the extent that Plaintiff could allege additional specific facts to make out an Eighth Amendment claim. ECF Nos. 15, 28, 38.

         On December 20, 2016, Plaintiff filed his Amended Complaint alleging that Dr. Jin failed to treat persistent severe pain and contractures of the fingers of his left hand, and that Dr. Jin suggested that as a prisoner serving a life sentence, Plaintiff was not entitled to outside medical treatment, but could receive only ibuprofen for pain. ECF No. 39 ¶ 8-10. Plaintiff alleged additional claims for “negligence and malpractice” and sought injunctive relief. ECF No. 39 at 5-6. Dr. Jin responded with a Motion to Dismiss, ECF No. 40, which this Court granted in part and denied in part. In particular, the Court ordered stricken Plaintiff's claims of negligence and malpractice against Dr. Jin, as both claims were not included in Plaintiff's original Complaint and, as new claims, were not contemplated by this Court's Order allowing the filing of an amended complaint.[1] However, the Court determined that Plaintiff's Amended Complaint alleged sufficient facts to state a claim for deliberate indifference to his medical needs in violation of the Eighth Amendment. ECF No. 47.

         Pursuant to the Court's Case Management Order, ECF No. 51, discovery is now closed and the parties have filed the pending cross Motions for Summary Judgment. ECF Nos. 58, 76. The parties have filed their respective briefs in support and in opposition to the pending motions, ECF Nos. 59, 60, 74, 75, 77, 78, 80, and 81. On March 16, 2018, the Court heard oral argument on the Motions for Summary Judgment. The Court asked Plaintiff and counsel for Dr. Jin to address a number of issues, including the failure to refer Plaintiff to a hand specialist and the statute of limitations. ECF No. 84. As such, the Motions for Summary Judgment are now ripe for consideration. [2]

         B. Relevant Factual History

         The evidence adduced to date establishes that in December 2011, Plaintiff began seeking medical treatment at SCI-Greene for complaints of a painful nodule on his left palm. Dr. Jin diagnosed the nodule as a palmar fibroma, and in May 2012, provided a local steroid injection for possible relief from pain. ECF 77-1 at 80, 138, 250. On June 7, 2012, Plaintiff was seen for follow-up, and Dr. Jin noted a tender nodule of the left palmar fascia in the area of the fifth metacarpal. Dr. Jin suggested excising the nodule, which was scheduled and completed with success two weeks later. This nodule was assessed as sequelae to Dupuytren's contracture.[3]ECF 77-1 at 79-80, 136-137, 258.

         Over the course of the next nine months, Plaintiff was seen by Dr. Jin or other medical staff for continuing and worsening pain and contractures to his left little finger and hand. Dr. Jin prescribed various doses of Motrin, Mobic and Naprosyn and provided a steroid injection to attempt to treat Plaintiff's pain. On September 24, 2013, Plaintiff submitted an initial grievance complaining that he most recently requested treatment on September 17, 2013, for “radiating, shooting, throbbing pain that is unbearably advancing at a rapid rate.” ECF 29-1 at 1-2. Plaintiff reported continued reduction of his range of motion and requested a consultation with a specialist. Plaintiff's grievance was denied and this disposition was upheld at each level of appeal. A Final Appeal Decision by the Secretary's Office of Inmate Grievances and Appeals affirmed the denial on March 6, 2014, based on a finding that Plaintiff's medical care was “reasonable and appropriate.” ECF No. 29-1 at 10.

         In January 2014, after prescribing Naprosyn, Plaintiff was told to follow-up in six months. Plaintiff returned in July 2014, and reported continued painful flexion contracture. Dr. Jin photographed Plaintiff's finger and forwarded a request to the Regional Medical Director for consultation with a hard surgeon. ECF 77-1 at 28-29, 76, 130 - 34. The consultation request does not indicate the identity of the reviewing physician, and contains only Dr. Jin's signature, reflecting that on July 14, 2014, it was determined that Plaintiff was to complete an Alternative Treatment Plan (“PT etc”).[4] Thereafter, Plaintiff attempted physical therapy, to no avail. The therapist indicated that as of August 14, 2014, Plaintiff suffered “severe left fifth digit contracture[, with] a dime-sized nodule” in the fifth digit metacarophalangeal area. Two weeks later, the therapist reported his assessment of no change in Plaintiff's severe contracture, with the therapist's notation that Plaintiff “may benefit from hand surgeon consult” because he was “not [a] good candidate for PT [at] this time.” ECF No. 77-1 at 129 - 30.

         Plaintiff was next seen by medical personnel on December 30, 2014, complaining of pain that at times went on for twenty minutes without relief or exacerbation. He rated his pain a 7 ½ out of 10 and the provider scheduled a chart review with Dr. Jin. ECF 77-1 at 75, 129. The provider reviewed Plaintiff's case with Dr. Jin, and progress notes indicate that Dr. Jin reviewed Plaintiff's chart again the following month and noted that while physical therapy was recommended as an alternative to surgery after the initial consult, he “didn't expect any help.” Id. at 128.

         Dr. Jin next examined Plaintiff on March 3, 2015. ECF No. 77-1 at 75, 128. By that time, Plaintiff suffered “a complete contracture with tenderness to the volar aspect.” ECF No. 77-1 at 71, 128. On March 24, 2015, Dr. Jin again examined Plaintiff and noted that at this time, Plaintiff was still in pain, and suffering a complete flexion contracture with pain at the site of the nodule. Dr. Jin determined that Plaintiff required surgical correction, and prepared a Consultation Record seeking an evaluation with a hand surgeon. ECF No. 77-1 at 27, 127. The Consultation Record does not indicate the identity of the consulting physician, but per Dr. Jin's notes, states that the request was declined. The record does not reflect the basis for the denial and Plaintiff's medical records do not indicate that Dr. Jin sought or initiated an alternative treatment plan. Id.

         Over the course of the next month, Plaintiff injured his left third and fourth fingers while playing basketball. Dr. Jin was notified, and ordered that Plaintiff's fingers be splinted and X-rayed the next day, and that he be treated with Motrin and ice. Plaintiff was seen the following day, and the X-rays revealed a dislocation of Plaintiff's left ring finger. On April 9, 2015, Plaintiff was seen by a medical provider for follow-up care to his hand, and it was noted that Plaintiff's ring finger was displaced. Dr. Jin was able to reduce the dislocation, and follow-up x-rays revealed good alignment of the joint and finger. On April 16, 2015, Plaintiff was seen by Dr. Jin for follow-up of his left ring finger. Dr. Jin buddy taped the ring finger to the contracted little finger and explained that the surgical consult for his Dupuytren's contracture had been denied for the second time. ECF No. 77-1 at 123. Again, there is nothing in the medical records to reflect the basis for the denial or that Dr. Jin took any further action to seek referral of Plaintiff to a hand surgeon or to develop an alternative treatment plan. Dr. Jin saw Plaintiff once more to follow-up on his dislocated finger, and recommended that Plaintiff continue active range of motion exercises. Id. Dr. Jin transferred out of SCI-Greene in May 2015, and has not seen Plaintiff again. ECF No. 78 at 15.

         Over the course of the remainder of 2015 and 2016, Plaintiff continued to be treated sporadically for complaints of pain in his left hand and contracture of his little finger. In January 2016, Plaintiff was prescribed pain medication for spasms and enlarged flexor tendons in his left hand, but was generally noncompliant with medication. A third hand surgeon consultation was considered but rejected because Plaintiff was able to perform all of his activities of daily living. ECF 77-1 at 116. After additional complaints of worsening pain, leading to the inability to use his left hand, in August 2016, four years after the initial excision by Dr. Jin, Correct Care Solutions, LLC (“CCS”) approved Plaintiff for a telemedicine consultation. The consultation occurred in November 2016 and after a second consultation in February 2017, ...


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