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Oliver v. United States

United States District Court, S.D. Indiana, Terre Haute Division

August 10, 2017



          Hon. William T. Lawrence, Judge

         Plaintiff Emmanuel Oliver, a former inmate of the Federal Correctional Institution in Terre Haute, Indiana (“FCI Terre Haute”) brought this action alleging that he received inadequate medical care while confined at that facility. Specifically, Oliver asserts that he should have been, but was not, provided with continuous oxygen therapy because of his lung disease. He also asserts that he was not properly treated for sleep apnea. In his Amended Complaint, filed on April 14, 2015, Oliver asserts claims under the Federal Tort Claims Act (“FTCA”) and the Eighth Amendment to the United States Constitution pursuant to the theory recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The defendants move for summary judgment on Oliver's claims and Oliver has responded.[1] For the reasons that follow, the motion for summary judgment, [dkt. 64] is granted.

         Statement of Facts

         Oliver was diagnosed December 2007 with Sarcoid.[2] Oliver was transferred from Wishard Hospital to the FCI Terre Haute on August 13, 2008. During his stay at FCI Terre Haute, between 2008 and 2012, Oliver was seen by Bureau of Prison (“BOP”) physicans on a number of occasions each year. He was also treated at the infirmary on a number of occasions and required hospitalization a number of times each year from 2008 through 2012. BOP physicians requested that Oliver be seen by specialists, primarily pulmonary specialists, although he was also seen by Cardiology, Internal Medicine, and Ophthalmology specialists during the time frame of 2008 through 2012. His care was overseen by pulmonary specialists each time he was hospitalized, which occurred a number of times each year between 2008 and 2012. Oliver states that during this time frame he needed continuous oxygen therapy and this was not supplied to him.

         The defendants have submitted an expert opinion from Dr. Mitchell Pfeiffer, a board certified pulmonary specialist. Dr. Pfeiffer reviewed Oliver's medical records and concluded that he did not require continuous oxygen therapy. Dr. Pfeiffer explains:

The standard level of care for continuous oxygen therapy is specific in terms of looking at oxygen saturation below certain parameters. One of the hallmarks to the criteria is that when a patient is sick or ill or going into the hospital, is that in order to look at the need for home oxygen therapy, whether it is intermittent or continuous, is based on what his oxygen saturations were like at the recovery phase after treatment has been initiated for whatever the underlying problem or process was. . . . [C]ontinuous oxygen therapy is not something that is “suggested, ” there are strict criteria for it and you either meet the criteria or you do not. Each time Oliver had difficulty with breathing, and there were certainly a number of them, his oxygen saturation would be low, but at the conclusion of therapy or at the conclusion of hospitalization, Oliver would no longer meet the criteria for oxygen therapy and therefore, did not require it.

         For example, on September 5, 2012, during an office visit for oxygen qualification testing, a note written by Dr. Lawrence Dultz at UAP Clinic Pulmonology, states the following:

Patient in office today for pulmonary function testing and re-evaluation of sarcoid. Patient O2 saturation to room air 84% at rest. Patient ambulated on room air Saturations of 79%. O2 applied at 2L, saturation remained 79%. O2 increased to #L, ambulated, saturation 81%. O2 increased to 4L, ambulated, saturation 84%. O2 increased to 5L, ambulated, saturation 87%. O2 increased to 6L, ambulated, saturation 94%. Patient sat down. O2 was removed, saturations 95%. Patient ambulated on room air, saturation from 91% to 98%. Nurse Practitioner notified of saturation levels. Patient currently at Federal Prison, does not allow for oxygen therapy on a routine basis. Will forward to Dr. Dultz for his review.

         At the conclusion of the note, it says “It looks like all he had to do to stay on the 90s without O2 was to move around a bit and ‘pop' open areas of atelectasis. The treatment is for him to be active, lose weight, and maybe use an incentive spirometer 4 times a day or so. I don't think he should be on continuous O2 or even O2 with exertion, ” and, at the final conclusions of the note, Dr. Dultz's opinion is that Oliver does not need continuous O2. Dr. Pfeiffer explains that this was the situation on virtually every occasion, or exacerbation, but after treatment and at the conclusion of the treatment or after hospitalization and at the very end of hospitalization, Oliver's situation had improved, his oxygen level had normalized, and he did not qualify for continuous oxygen therapy nor intermittent oxygen therapy. Dr. Pfeiffer concludes that BOP physicians met the standard of care for Oliver's conditions.

         Dr. Pfeiffer also explains that if Oliver had been denied needed oxygen therapy he would have developed pulmonary hypertension, right-side heart failure, and signs of cor pulmonale. However, in testing throughout the years from 2008 to 2012, and even into early 2013, Oliver has had several cardiac echocardiograms, cardiac MRIs, including cardiac catheterization, none of which show any sign of left nor right-sided heart failure or dysfunction in any way. According to Dr. Pfeiffer, there was no sign of elevated pulmonary artery pressures, no sign of secondary pulmonary hypertension, nor cor pulmonale. Dr. Pfeiffer concludes that Oliver has not suffered permanent harm from the treatment; the fact that each time he was started on appropriate therapy his level of pulmonary function would improve, indicates that it was still an inflammatory process able to respond to treatment and reversible.

         With regard to Oliver's complaint about sleep apnea, Dr. Pfeiffer states: Oliver did have access to his CPAP unit and wore his CPAP unit while he was at FCI Terre Haute. At each hospitalization, Oliver was seen by a pulmonary specialist, who, at any point in time without needing to do a sleep study, the specialist could have increased the pressure in Oliver's CPAP machine or requested that this be done. Dr. Pfeiffer concludes: “I do not see anywhere in Mr. Oliver's complaint nor in his notes that any of these pulmonary specialists asked for the pressures in the CPAP unit to be increased.” According to Dr. Pfeiffer, the BOP physicians provided care appropriate to their level of their training and expertise. In doing so, the Bureau of Prison physicians met the appropriate standard of care. Oliver suffered no harm from not wearing oxygen and his Sarcoid should improve with appropriate therapy.

         Summary Judgment Standard

         Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed and all reasonable inferences must be drawn in the non-movant's favor. Hemsworth v., Inc., 476 F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.”). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490. Finally, the non-moving party ...

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