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Brown v. United States

United States District Court, S.D. Indiana, Indianapolis Division

September 19, 2017




         This matter is before the Court on a Motion for Summary Judgment filed by Defendant the United States of America (“United States”).[1] 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. [124], is granted.


         The 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).


         The 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).

         A. Summary of Mr. Brown's Medical Care

         On 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. [124]-2, ¶ 10.

         Mr. 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 ¶¶ 11-12.

         On 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. [125]-4, p. 1.

         On 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. 3.

         On 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. [125]-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. [124]-2, ¶ 16.

         On September 4, 2012, Mr. Brown was seen at Sick Call, reporting that his foot was numb and that he was in constant pain. Dkt. [125]-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. [124]-2, ¶ 17.

         Mr. 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. [124]-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.

         On 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. [124]-2, ¶ 21.

         On 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. [125]-14. Dr. Ulrich came to FCC-TH to see Mr. Brown. Dkt. [124]-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. Dkt. [125]-14.

         On 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. [125]-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. [124]-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. [125]-16.

         Dr. Wilson evaluated Mr. Brown on September 27, 2012, for follow up of his tibia/fibula fracture. Dkt. [125]-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. [124]-2, ¶ 24.

         On October 23, 2012, Dr. Wilson evaluated Mr. Brown again for hypertension, migraines, and follow up of his tibia/fibula fracture. Dkt. [125]-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. Dkt. [125]-20.

         On November 28, 2012, Dr. Wilson spoke with the orthopedist regarding Mr. Brown's tibia/fibula fracture. Dkt. [125]-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. [124]-2, ¶ 26.

         Mr. Brown was seen for a Chronic Care encounter on December 13, 2012, by Dr. Roger Bailey (“Dr. R. Bailey”). Dkt. [125]-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. [125]-24.

         On January 23, 2013, Mr. Brown was transported to Wabash Valley Neurology for another EMG. Dkt. [125]-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. [125]-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. [125]-27.

         Mr. 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. [125]-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. [125]-29. On April 25, 2013, an x-ray was performed of Mr. Brown's right tibia/fibula. Dkt. [125]-30. The findings were “negative except for: increased callus formation consistent with interval partial healing. Hardware is intact.” Id.

         Dr. Ulrich performed hardware removal surgery on Mr. Brown on May 20, 2013, at Union Hospital. Dkt. [124]-2, ¶ 33; Dkt. [125]-31. Mr. Brown was returned to FCC-TH that same day, at which time he was evaluated by RN Stephen Mize. Dkt. [125]-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.

         Two 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. [125]- 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. [125]-33.

         Upon Mr. Brown's return to FCC-TH, Dr. Wilson submitted consultation requests to have Mr. Brown seen by neurology and neurosurgery. Dkt. [125]-33. The Utilization Review Committee (“URC”) approved the neurology and neurosurgeon consultations on June 5, 2013. Dkt. [125]-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. [124]-2, ¶ 35.

         Another x-ray of Mr. Brown's right tibia/fibula was taken on June 7, 2013, to rule out osteomyelitis. Dkt. [125]-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.

         After 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. [125]-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. [125]-37.

         On August 8, 2013, Mr. Brown was evaluated in-house by Dr. Ulrich, who recommended a right tibia/fibula x-ray and bone scan. Dkt. [125]-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. [125]-39. A nuclear bone scan was ordered on September 24, 2013. Dkt. [125]-40. Also on August 8, 2013, Mr. Brown was seen again by outside neurologist Dr. Richter. Dkt. [125]-41.

         Mr. 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. [125]-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. [125]-43. Another x-ray of Mr. Brown's right tibia/fibula was taken on December 5, 2013, which showed “abnormal. Fracture ...

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