United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING MOTION FOR SUMMARY JUDGMENT
William T. Lawrence, Judge
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. For the reasons that follow, the motion
for summary judgment, [dkt. 64] is granted.
was diagnosed December 2007 with Sarcoid. 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.
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.
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.
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
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
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.
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.
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. Quotesmith.com, 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 ...