United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
WALTON PRATT, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on a Motion for Summary Judgment
filed by Defendant the United States of America
(“United States”). The Plaintiff in this Federal
Tort Claims Act (“FTCA”) action is Daniel Lynn
Brown, Jr. (“Mr. Brown”). Mr. Brown alleges in
his Amended Complaint that the United States was negligent in
providing treatment after he fractured his right leg while he
was incarcerated at the Federal Correctional
Institution-Terre Haute (“FCC-TH”). He seeks
compensatory damages. For the reasons explained in this
Entry, the United States' Motion for Summary Judgment,
dkt. , is granted.
SUMMARY JUDGMENT STANDARD
purpose of summary judgment is to “pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). 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.” Federal Rule of Civil Procedure 56(a). A dispute
about a material fact is genuine only “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If no reasonable jury
could find for the non-moving party, then there is no
“genuine” dispute. Scott v. Harris, 127
S.Ct. 1769, 1776 (2007).
following statement of facts was evaluated pursuant to the
standards set forth above. That is, this statement of facts
is not necessarily objectively true, but as the summary
judgment standard requires, the undisputed facts and the
disputed evidence are presented in the light reasonably most
favorable to Mr. Brown as the non-moving party. See
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 150 (2000).
Summary of Mr. Brown's Medical Care
August 19, 2012, Mr. Brown was brought to FCC-TH Health
Services via a gurney and was assessed by LPN Danna Dobbins
(“Nurse Dobbins”) for a right leg injury. Mr.
Brown reported that, while playing soccer, he ran into
another inmate's shin. Nurse Dobbins noted an obvious
closed fracture to the right lower tibia, palpable pedal
pulses, and that Mr. Brown's foot was warm, dry, and with
normal coloration. Mr. Brown's leg was splinted. Over the
telephone, Dr. William Wilson (“Dr. Wilson”), the
Clinical Director of FCC-TH, gave a verbal order to send Mr.
Brown to the Union Hospital emergency room via ambulance for
further evaluation. See Dr. Wilson's
Declaration, Dkt. -2, ¶ 10.
Brown was transferred and admitted into Union Hospital with a
right tibia and fibia fracture on August 19, 2012. Once he
was transferred to Union Hospital, Dr. Wilson was not the
treating or admitting physician, and Mr. Brown was under the
care of the admitting physician at Union Hospital. As such,
neither Dr. Wilson nor any other member of the Bureau of
Prisons (“BOP”) medical staff made any decisions
regarding Mr. Brown's treatment while he was admitted to
Union Hospital, including, but not limited to, if and when to
discharge Mr. Brown. Rather, those decisions were made by the
hospital treating physicians. Id. at ¶¶
August 20, 2012, while at Union Hospital, Dr. Mickey Cho
performed a closed reduction and intramedullary nailing of
Mr. Brown's right tibia. While being treated at Union
Hospital, either Dr. Wilson or another BOP staff physician
was advised of the recent developments in his case by the
hospital. On August 24, 2012, Dr. Wilson noted that Mr.
Brown's tibia fracture was stable and that they were
“awaiting ok from ortho for discharge.” Dkt.
-4, p. 1.
August 28, 2012, Dr. T. Bailey, M.D. (“Dr. T.
Bailey”), noted that Mr. Brown was six days
post-operative right tibia fracture, was still with more pain
than the physicians caring for him felt was appropriate
unless there was instability, and was to be re-evaluated by
the orthopedist the following day. Id. at p. 2. On
August 31, 2012, Dr. T. Bailey noted that Mr. Brown was
recovering from reconstructive surgery, that the hospital
felt that he could be discharged that day, and that they were
awaiting final word from the orthopedist. Id. at p.
August 31, 2012, Mr. Brown was discharged from Union Hospital
and transferred back to FCC-TH, where he was seen by LPN
Jessica Sawyer for a Medication Reconciliation. Dkt. -5,
p. 1. Mr. Brown returned to FCC-TH with orders for Vicodin,
two tablets every four hours as needed. Id. at p. 2.
Physician Assistant Christopher Blila (“PA
Blila”) gave the order to “change vicodin to
percocet 2 TID x 10 days, start on doxycycline 100mg BID x 10
days, and daily vitals through the weekend.”
Id. Mr. Brown was given his first dose of
antibiotics and pain medication and instructed to return in
the morning for his vitals and medication. He was further
instructed to lie with his legs elevated and to avoid sitting
for long periods of time. PA Blila gave the order to give Mr.
Brown a wheelchair until he was evaluated by physical
therapy. Id. The medications and instructions that
Mr. Brown received from BOP medical staff were consistent
with his discharge instructions from Union Hospital. Dkt.
-2, ¶ 16.
September 4, 2012, Mr. Brown was seen at Sick Call, reporting
that his foot was numb and that he was in constant pain. Dkt.
-7. Nurse Dobbins noted signs of infection in Mr.
Brown's right lower leg and notified PA Blila, who gave a
verbal order to x-ray the area to rule out osteomyelitis. The
x-ray identified no radiographic evidence of osteomyelitis.
Dkt. -2, ¶ 17.
Brown began physical therapy on September 11, 2012, at which
time he reported to Ashley Matchett, a contract physical
therapist, that he was told he was 50% partial weight
bearing, but that he was in a wheelchair and had not walked
in the past ten days. Mr. Brown was to be seen at physical
therapy twice per week. Dkt. -2, ¶ 18. He returned
to physical therapy on September 13, 2012, reporting to the
physical therapist that he was walking with crutches without
a boot, which the physical therapist advised against until
the orthopedist told him this was okay. Mr. Brown continued
to be seen for physical therapy, initially twice per week and
then gradually decreasing over time until it was discontinued
on January 2, 2014. Id., ¶¶19-20.
September 18, 2012, Mr. Brown was seen at Sick Call,
requesting to speak to his doctor about pain in his leg after
his post-surgery narcotic had ended. It was explained to Mr.
Brown that the use of pain medications after surgery is short
term only and that Nonsteroidal Anti-Inflammatory Drugs
(“NSAIDs”) were to be used after that, if needed.
Later on that same day, Mr. Brown was seen by Mid-Level
Provider Z. Ndife, requesting more narcotic pain medication.
Naproxen was prescribed. Dkt. -2, ¶ 21.
September 20, 2012, Mr. Brown was seen in-house by Dr. Gary
Ulrich (“Dr. Ulrich”), an orthopedist, for follow
up post hospitalization for his tibia/fibula fracture. Dkt.
-14. Dr. Ulrich came to FCC-TH to see Mr. Brown. Dkt.
-1, p. 19:19-20. Mr. Brown was able to move his right
toes and foot without problems. He was instructed to do toe
touch weight bearing and continue range of motion exercises
with physical therapy. The note indicates that Dr. Ulrich did
not want Mr. Brown to take ibuprofen or naproxen so the
naproxen was discontinued and he was prescribed meloxicam.
September 24, 2012, Mr. Brown submitted an Inmate Request to
Staff, contending that Dr. Ulrich had ordered all NSAIDs
stopped and complaining that Dr. Wilson had prescribed more
NSAIDs. Dkt. -15. Dr. Wilson responded to Mr.
Brown's request the same day, informing him that he saw
no medical contraindication to NSAIDs and that they would not
cause delayed healing or suffering. Dkt. -2, ¶ 23.
Nonetheless, Dr. Wilson ordered the NSAIDs stopped,
discontinued the meloxicam, and informed Mr. Brown that he
may purchase Tylenol from the commissary. Dkt. -16.
Wilson evaluated Mr. Brown on September 27, 2012, for follow
up of his tibia/fibula fracture. Dkt. -17. Mr. Brown
reported burning in the top and medial right foot, that he
did not want narcotics, and that he wanted to get out of the
wheelchair, which was medically indicated at that time. It
appeared that Mr. Brown had neuropathic type discomfort, and
Dr. Wilson started him on gabapentin beginning with 100 mg
three times per day and gradually increasing to 300 mg three
times a day. (Neurontin is the brand name for gabapentin.)
Dr. Wilson further requested an electromyography
(“EMG”) of Mr. Brown's right lower extremity
and a repeat x-ray of his right lower leg. A repeat x-ray of
Mr. Brown's right leg was taken on October 17, 2012,
which showed no osseous bridging. Dkt. -2, ¶ 24.
October 23, 2012, Dr. Wilson evaluated Mr. Brown again for
hypertension, migraines, and follow up of his tibia/fibula
fracture. Dkt. -19. Regarding Mr. Brown's right leg
fracture, Dr. Wilson noted to ensure follow up with
orthopedics and he increased Mr. Brown's gabapentin to
400mg three times a day. Approximately a month later, after
Mr. Brown complained of increased pain in his right leg and
numbness and pressure in his foot and calf muscle, his
gabapentin was again increased, to 600 mg three times a day.
November 28, 2012, Dr. Wilson spoke with the orthopedist
regarding Mr. Brown's tibia/fibula fracture. Dkt.
-21. The orthopedist stated that Mr. Brown needed a bone
stimulator and/or further surgery for incomplete healing of
the tibia. Dr. Wilson submitted a request to arrange for a
bone stimulator for Mr. Brown to be placed by nursing
in-house. On December 3, 2012, Dr. Ulrich completed a
Specialist Order Referral ordering a Smith & Nephew bone
stimulator for Mr. Brown. Mr. Brown was provided an Exogen
bone stimulator, which Dr. Wilson believes was consistent
with the referral from Dr. Ulrich. Dkt. -2, ¶ 26.
Brown was seen for a Chronic Care encounter on December 13,
2012, by Dr. Roger Bailey (“Dr. R. Bailey”). Dkt.
-23. Mr. Brown reported that his continuous pain was
markedly improved since being placed on gabapentin, but he
was still uncomfortable. Dr. R. Bailey requested a follow up
consultation with the in-house orthopedist and prescribed Mr.
Brown a low dose of tricyclic antidepressants to see if it
would be effective for his pain. Mr. Brown was encouraged to
use the bone stimulator as prescribed. A Clinical Encounter -
Administrative Note completed on January 24, 2013, noted that
Mr. Brown began using the bone stimulator on December 13,
2012, and used it 42 times over 43 days. Dkt. -24.
January 23, 2013, Mr. Brown was transported to Wabash Valley
Neurology for another EMG. Dkt. -25. Dr. Lawrence
Richter's impression was that the EMG and nerve
conduction studies would be compatible with an axonal injury
to the nerves distally in the right lower extremity above the
ankle. He recommended clinical correlation. An x-ray of Mr.
Brown's right tibia/fibula was ordered on January 24,
2013, to recheck the fracture. Dkt.
-26. The findings were
“abnormal.” “Fracture lucencies still
evident, only mild callus bridging from prior. Hardware
intact.” Id. Dr. Ulrich evaluated Mr. Brown
in-house on January 24, 2013, as well as the x-ray from that
day. Dr. Ulrich recommended continuing the current treatment
and scheduling removal of the distal fixation screws, with
follow up after the hardware removal. Dkt. -27.
Brown was seen at Health Services in the prison several times
between January 24, 2013 and May 9, 2013, reporting pain in
his lower leg, headaches, and blisters on the great toe of
his right foot, and requesting changes to his medications.
Dkt. -28. Mr. Brown's medications were altered, his
blisters were cleaned and dressed with tefla and tape, and he
was prescribed Cephalexin (Keflex). Id. He was also
given a medical surgical shoe/all-purpose boot. Dkt.
-29. On April 25, 2013, an x-ray was performed of Mr.
Brown's right tibia/fibula. Dkt. -30. The findings
were “negative except for: increased callus formation
consistent with interval partial healing. Hardware is
Ulrich performed hardware removal surgery on Mr. Brown on May
20, 2013, at Union Hospital. Dkt. -2, ¶ 33; Dkt.
-31. Mr. Brown was returned to FCC-TH that same day, at
which time he was evaluated by RN Stephen Mize. Dkt.
-31. The RN reviewed the discharge instructions with Mr.
Brown, noted that his dressing was clean, dry, and intact,
and obtained verbal orders from PA Blila to prescribe Mr.
Brown Tylenol plus codeine, antibiotics, and daily dressing
changes for seven days or until no drainage. Id.
days later-on May 22, 2013-Mr. Brown was evaluated at Health
Services by RN Sarah Walters, complaining of redness and
drainage around the surgical incision site. Dkt. - 32.
Dr. Wilson was notified and gave verbal orders to send Mr.
Brown as a direct admit to Union Hospital for a probable
infection. Id. Mr. Brown remained at Union Hospital
for cellulitis of his surgical site until May 29, 2013, when
he was discharged and returned to FCC-TH. Dkt. -33.
Mr. Brown's return to FCC-TH, Dr. Wilson submitted
consultation requests to have Mr. Brown seen by neurology and
neurosurgery. Dkt. -33. The Utilization Review Committee
(“URC”) approved the neurology and neurosurgeon
consultations on June 5, 2013. Dkt. -34. Once the URC
approves consultation requests, they are given to a
representative of NaphCare, a third-party independent
contractor that is responsible for scheduling consultations
with outside providers, such as neurologists and
neurosurgeons. Dkt. -2, ¶ 35.
x-ray of Mr. Brown's right tibia/fibula was taken on June
7, 2013, to rule out osteomyelitis. Dkt. -35. The x-ray
findings were “abnormal. Transverse fractures of distal
fibular and tibial shafts with mild osseous bridging. An
intramedullary rod with proximal interlocking screws
traverses the tibia. Ghost tracks from prior distal
interlocking screws are noted.” Id.
the hardware removal surgery, Mr. Brown continued to complain
of difficulties with the toes on his right foot. On July 3,
2013, he was evaluated by EMT-P Adam Webb, regarding pain in
his second toe on his right foot. Dkt. -36. The toe
appeared to have a clearing infection although the nail was
black. Blood flow was present in the toe. Mr. Brown asked EMT
Webb to remove his toenail and drain his toes. EMT Webb
advised Mr. Brown that he was not able to perform such a task
and that it would have to be done by a physician or PA when
he was seen for his sick call. He also explained that, due to
short staffing, being seen is taking a little longer. Mr.
Brown was provided with a prescription of Keflex and
instructed on compliance with treatment and proper wound
care. Id. On July 18, 2013, Mr. Brown reported to
PTA Burns that he had removed the nails from his first and
second toes. Dkt. -37.
August 8, 2013, Mr. Brown was evaluated in-house by Dr.
Ulrich, who recommended a right tibia/fibula x-ray and bone
scan. Dkt. -38. An additional x-ray was taken on August
12, 2013, which was “[n]egative and no evidence of
orthopedic hardware failure. Healing fractures of the tibia
and fibula. Status post ORIF of tibia fracture.” Dkt.
-39. A nuclear bone scan was ordered on September 24,
2013. Dkt. -40. Also on August 8, 2013, Mr. Brown was
seen again by outside neurologist Dr. Richter. Dkt. -41.
Brown was subsequently seen at Health Services numerous
times, complaining of problems with the toes on his right
foot. He was given medical boots, weekly wound dressings, and
toe splints for these complaints. Dkt. -42. Along with
toe complaints, Mr. Brown was also evaluated at Health
Services several times for continued complaints about his
right leg. His gabapentin dose was increased to 1200mg three
times a day and eventually stopped and replaced with Lyrica
(brand name for pregabalin), 50mg three times a day, once the
necessary approvals were received. Dkt. -43. Another
x-ray of Mr. Brown's right tibia/fibula was taken on
December 5, 2013, which showed “abnormal. Fracture