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Ellison v. United States

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

May 11, 2018

KYLE ELLISON, Plaintiff,


          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff Kyle Ellison is a federal inmate. He filed this civil action against the United States of America under the Federal Tort Claims Act (FTCA). Ellison contends that, during his incarceration at the Federal Correctional Institution in Terre Haute, Indiana (FCI-Terre Haute), he received negligent medical care. The United States argues that it is entitled to judgment as a matter of law because it was not negligent with respect to Ellison's medical care and there is no evidence that any negligence caused him injury. This Court recruited counsel to assist Ellison in responding to the motion for summary judgment.[1] The United States replied and subsequently sought to exclude Ellison's witness's opinions at trial. The United States' motion to exclude the opinions of Dr. Rebecca De La Rosa, dkt [89], is denied for the reasons set forth in a separate Entry issued this same day.

         For the reasons explained below, the United States' motion for summary judgment, dkt [84], is granted in part and denied in part.

         I. Summary Judgment Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018) (emphasis added). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         II. Statement of Material Facts

         Applying the standards set forth above, the following statement of facts give Ellison, as the non-moving party, the benefit of all reasonable inferences.

         A. Lipoma

         While in custody at FCI-Terre Haute in May or June of 2014, Ellison injured his forehead on a metal soap dish in the shower. Believing that the subsequent pain and swelling on his forehead would subside over time, Ellison initially treated his injury without seeking medical assistance by applying ice.

         A couple weeks following his injury, Ellison mentioned the lump on his forehead to a BOP doctor treating his diabetes. The doctor advised Ellison to give his lump a few more weeks to heal and then to return if the situation did not improve.

         After waiting a few weeks, Ellison put in for sick call since the lump on his forehead had not improved. He saw a registered nurse on August 27, 2014. The registered nurse who saw Ellison on that date recorded that Ellison's pain was a “7” on the Pain Scale and that it was aching. The nurse placed Ellison on call-out to be examined by a physician.

         BOP medical providers did not see Ellison again for the lump on his forehead until October 17, 2014. On that day, Ellison was examined by Dr. Joseph Bergeron and Dr. Bailey at Health Services. They estimated his lump to be approximately one inch by one inch in size, and recorded that Ellison's pain was a “1” on a scale from 1 to 10 at that time. Additionally, they recorded that the lump was consistent with his prior contusion and identified it as a “possible consolidated hematoma, seroma, [or] lipoma . . . .” Because the conditions indicated the lump could likely resolve on its own without surgery, Dr. Bergeron recommended a six-month period of observation, after which a surgical consultation could be considered. In the meantime, Dr. Bergeron advised Ellison to present to Health Services if his condition worsened.

         Ellison continued to suffer from headaches of varying severity. Ellison believed the lump was causing his headaches and dizziness.

         Dr. T. Bailey evaluated Ellison for a Chronic Care encounter on January 8, 2015. There is no indication in the medical record that Ellison complained about any bump or contusion on his forehead at that time.

         On March 5, 2015, Ellison sent an electronic message to Health Services, stating that he had been told to follow up in six months, was having headaches and dizziness, and would like a consultation. Ms. Dautherly, a BOP employee, responded to Ellison's message by informing him that he needed to sign up for sick call and that he was scheduled to see Dr. Bailey again in July.

         BOP Registered Nurse (“R.N.”) Matthew Worthington treated Ellison at sick call on March 9, 2015. R.N. Worthington recorded that Ellison's chief complaint was pain in the front part of his scalp at a pain level of “4” on a scale of 1 to 10. He further recorded that the pain quality was “[a]ching” and that it had lasted for “6-12 [m]onths.” On March 17, 2015, Ellison was evaluated at Health Services by Certified Family Nurse Practitioner (“FNP”) Christopher Blila. FNP Blila noted that Ellison reported that he had developed a knot on his forehead that would not go away and “problems with constant headaches in the area of the injury since.” FNP Blila noted further that the “3 cm x 3 cm” lump on Ellison's forehead was “most likely” a fatty lipoma. A lipoma is a benign condition of the subcutaneous tissue.[2] This was the first time since his injury that any BOP medical provider informed Ellison that his knot might be a lipoma. FNP Blila placed a request for Ellison to receive a General Surgery consultation to evaluate the lipoma and the possibility of removal.

         Despite Ellison's complaints that the lipoma was causing chronic headaches, dizziness, and was growing, the BOP's Utilization Review Committee (“URC”) denied the consultation request made by FNP Blila on March 18, 2015, as merely cosmetic.

         When Ellison's symptoms persisted, he returned to sick call on April 6, 2015. Certified Physician Assistant (“PA”) Genevieve Daugherty recorded that Ellison's pain on that visit was a “7” on a scale from 1 to 10. PA Daugherty further noted that Ellison reported intermittent pain at the site of his lipoma. Finally, PA Daugherty indicated that Ellison's lipoma had grown from “3 cm x 3 cm” to a size of “4 cm x 3.5 cm” in a matter of only twenty (20) days. PA Daugherty again requested that Ellison receive a General Surgeon consultation to assess his lipoma. The URC approved the second request for Ellison to receive a General Surgeon consultation on April 8, 2015.

         On April 10, 2015, Ellison complained to the Assistant Warden that he did not feel like enough was being done to address his condition. The Assistant Warden contacted Christopher McCoy, the Assistant Health Services Administrator (“AHSA”), who met with Ellison on April 13, 2015. During this meeting, Ellison claimed that nothing was being done to address his lipoma. Ellison questioned why, after numerous medical assessments over the course of several months, Health Services had not taken an MRI, x-ray, or otherwise run any tests on the lump on his forehead. R.N. McCoy agreed to have another clinician examine Ellison during mainline on April 13, 2015, but Ellison was not able to attend mainline due to missing his “move” while at work.

         On May 12, 2015, Ellison had his General Surgery consultation with Dr. Brett Guinn, a contract surgeon not employed by the BOP.[3] Dr. Guinn confirmed that Ellison had a lipoma and recommended surgical removal given Ellison's symptoms relating to the lipoma. The medical records memorialize that Dr. Guinn discussed with Ellison “the risks of poor scarring, poor cosmetic result, [and] nonresolution of his headaches” and that Ellison understood and agreed to proceed. Ellison asserts that contrary to the medical records, these risks were not discussed with him. Ellison agreed to the excision of his lipoma, and Dr. Guinn submitted requests for an offsite general surgery appointment and an onsite general surgery follow-up appointment.

         On July 21, 2015, Dr. Guinn removed the lipoma at the Wabash Valley Surgery Center. To close the wound, Dr. Guinn used black, interrupted 3-0 nylon vertical mattress and simple skin sutures near Ellison's hairline.

         After the surgery, Ellison was provided with discharge instructions that advised Ellison- among other directions-that the “[s]utures need to be removed in 10 days at Health Services” and that he needed to “[c]hange dressing as needed, ” “[p]lace Neosporin on wound, ” and “cover with gauze daily.” In order to assist Ellison with managing pain following the excision of his lipoma, Dr. Guinn prescribed him “5 mg” doses of “acetaminophen- HYDROcodone 325 mg - 10 mg oral tablet” (“Hydrocodone”) to take every four (4) hours on an as-needed basis.

         Upon his return to FCI-Terre Haute that same day, Ellison was seen at Health Services, voicing “no complaints at this time.” R.N. Stephen Mize, purportedly following verbal orders from PA Daugherty, disregarded Dr. Guinn's direction to provide Ellison with Hydrocodone to treat his pain and instead provided him with ibuprofen. R.N. Mize noted that Ellison's sutures were to be removed in ten (10) days. He instructed Ellison to follow-up with Sick call if he had any additional issues in the interim.

         Following the surgery, the tissue that was removed was tested, confirming that it was indeed a lipoma and not cancerous.

         B. Removal of Sutures

         On the ninth day following his surgery, Ellison reported to Health Services to determine what time they wanted him to return on July 31, 2015, to have his sutures removed. He spoke with R.N. Worthington, who informed him that he needed to return that same afternoon, July 30, 2015, to have his sutures removed and not on the following day. According to R.N. Worthington, inmates from a different part of the prison would be visiting on July 31, 2015, making it too busy for the health care providers to see Ellison.

         Ellison returned as R.N. Worthington had instructed him. When Ellison arrived at Health Services, R.N. Worthington was eating. R.N. Worthington asked Ellison to give him a few minutes, but Licensed Practical Nurse (“LPN”) Nicole Clingerman offered to remove the sutures for R.N. Worthington. Ellison, R.N. Worthington, LPN Clingerman, and Dental Hygienist Kimberly Rhoads joked about R.N. Worthington's hands being too large to remove the sutures from Ellison's forehead.

         Rhoads stated that she would remove Ellison's sutures, but Ellison took her statement as a joke. Ellison believed that LPN Clingerman would be the one to remove his sutures, but he started to get apprehensive when it seemed Rhoads was going to proceed. Ellison questioned Rhoads' qualifications to remove his sutures. Rhoads responded by telling Ellison to “stop being scared” and that she takes stitches out of smaller places like mouths. Still believing that LPN Clingerman would be the one to remove his sutures, Ellison continued to joke with Rhoads about her removing his sutures.

         Once LPN Clingerman returned with a tray to remove Ellison's sutures, she told Rhoads that Clingerman could handle the removal. But Rhoads insisted that she would remove Ellison's sutures, called two (2) dental assistants into the room with her, and proceeded to remove the sutures. Neither LPN Clingerman nor ...

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