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Gooch v. Bergeson

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

September 27, 2019

CHARLES GOOCH, Plaintiff,
v.
LISA BERGESON, DR MICHAEL PERSON, TINA COLLINS RN, DANA MILLER Physical Therapist, LYNETTE KING, JAMALEE EDWARDS, WEXFORD OF INDIANA, CORIZON, LLC, Defendants.

          ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS PERSON, BERGESON, EDWARDS, COLLINS, KING, CORIZON, AND WEXFORD

          JAMES R. SWEENEY II, JUDGE

         I. Background

         At all relevant times, plaintiff Charles Gooch was an Indiana prisoner incarcerated at the Correctional Industrial Facility (CIF). Mr. Gooch filed this civil rights action on April 3, 2017. Dkt. 1. This action was consolidated with another action, 1:17-cv-2217-RLY-MPB, on March 12, 2018. Dkt. 41. His third amended complaint, tendered on May 7, 2018, dkt. 48, and filed on June 8, 2018, is the operative pleading. Dkt. 52. The third amended complaint names the following defendants: 1) Dr. Michael Person; 2) Lisa Bergeson, nurse; 3) Dana Miller, physical therapist; 4) Jamalee Edwards, M.A.; 5) Tina Collins, R.N.; 6) L. King, A.A.; 7) Corizon Health Care (Corizon); and 8) Wexford Health Care (Wexford). Mr. Gooch seeks compensatory and punitive damages and injunctive relief in the form of diagnostics and surgery.[1]

         Dana Miller filed a separate motion for summary judgment which has been resolved in a separate Entry. The remaining seven defendants seek summary judgment on the claims brought against them. Dkt. 85. Briefing was extended to allow the Court to recruit counsel to assist Mr. Gooch. Counsel was recruited on May 2, 2019, and August 15, 2019. Dkt. 137; dkt. 152. The Court greatly appreciates recruited counsel’s assistance with this case. Mr. Gooch has opposed the motion, dkt. 147, and the defendants have replied, dkt. 155. For the reasons explained in this Entry, the defendants’ motion for summary judgment, filed on February 13, 2019, must be granted.

         II. Summary Judgment Standard

         Summary judgment should be granted “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.” Fed.R.Civ.P. 56(a). “Material facts are those that might affect the outcome of the suit under applicable substantive law.” Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015) (internal quotation omitted). “A genuine dispute as to any material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Daugherty v. Page, 906 F.3d 606, 609-10 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court views the facts in the light most favorable to the non-moving party and all reasonable inferences are drawn in the non-movant’s favor. Barbera v. Pearson Educ., Inc., 906 F.3d 621, 628 (7th Cir. 2018). The Court cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Johnson v. Advocate Health and Hosp. Corp. 892 F.3d 887, 893 (7th Cir. 2018).

         III. Discussion

         A. Facts

         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. Gooch as the non-moving party with respect to the motion for summary judgment. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150 (2000).

         Mr. Gooch received his first ankle-foot orthosis (AFO) in early 2015. Dkt. 148-1 at ¶ 20. An AFO is a mechanical brace that can be worn by a patient with foot drop to keep the foot elevated and to assist with ambulation. Dkt. 88-5 at ¶ 6.

         On May 3, 2016, Mr. Gooch was seen for a chronic care visit, at which time he presented with high blood pressure, high cholesterol, and gastroesophageal reflux (GERD) - all of which were being controlled with medication. Dkt. 88-1 at ¶ 6. Mr. Gooch also presented with left-side weakness related to a cerebrovascular accident (CVA), otherwise known as a stroke, that he experienced in 1994 as a result of a motor vehicle accident. Id. It was noted that Mr. Gooch wore a brace on his left leg. Id. Mr. Gooch was noted as being on bottom bunk/bottom floor status.

         On August 31, 2016, Mr. Gooch submitted a health care request form (HCRF) stating he slipped on the stairs near the officers’ station because standing water was present. Dkt. 88-2 at 67. He was given Tylenol and ice for back pain. Id.; dkt. 88-1 at ¶ 8. He was told to notify medical if his symptoms became worse. Id.

         On September 8, 2016, Mr. Gooch saw Dr. Michael Person. Dkt. 148-1 at ¶ 6. Mr. Gooch stated he injured the back of his left knee. Id. The examination reflected that ligaments in the knee were intact. Dkt. 88-1 at ¶ 9. Dr. Person prescribed Ultram for pain. Id. Nurse Bergeson was present to take vital signs and record orders. Id.

         Nurse Bergeson is a Registered Nurse (RN) licensed by the State of Indiana since 2013. Dkt. 88-1 at ¶ 2. She began her employment with Corizon on March 17, 2014, as a floor nurse at CIF. Id. She was then employed as the Health Services Administrator (HSA) by Corizon from January 8, 2017, through March 31, 2017. Id. She remained in that position when Wexford was awarded the medical provider contract beginning April 1, 2017. Id.

         As an RN, Nurse Bergeson did not prescribe medications or order repairs to medical devices. Dkt. 88-1 at ¶¶ 5, 56. As an RN, Nurse Bergeson did not formulate treatment plans or override the medical judgment of the medical providers. Id. As HSA, she was the chief administrative manager of the on-site health services department and, as such, oversaw the administrative duties of the clinic but did not treat or interact with patients. Id. In her capacity as HSA for both Corizon and Wexford, her job duties included responding to informal and formal grievances submitted by inmates regarding their healthcare. Id. at ¶ 56.

         On September 23, 2016, Mr. Gooch was seen by Dr. Person for continued left knee pain under the knee cap. Dkt. 88-4 at 145-47; dkt. 88-2 at 149-153. Mr. Gooch was wearing a knee brace but not all the time. He reported that his pain was less when he wore the brace. Id. Dr. Person’s evaluation indicated good range of motion, but with pain. Id. Dr. Person prescribed a left knee injection and encouraged Mr. Gooch to wear his brace. Id. There was no discussion about any issue with his AFO at this time. Dkt. 88-5 at ¶ 9. Nurse Bergeson was present to take vital signs and record Dr. Person’s orders. Dkt. 88-4 at 145-47; dkt. 88-1 at ¶ 12. Dr. Person also submitted an outpatient request for physical therapy. Dkt. 88-4 at 143.

         On September 23, 2016, Lynette King, administrative assistant, noted that the OPR (outside provider request) for a physical therapist evaluation had been approved. Dkt. 88-4 at 141. During all relevant times, Ms. King was employed as an administrative assistant at the CIF. Dkt. 88-7 at ¶ 2. As an administrative assistant, Ms. King did not have the authority to order treatment or address medical issues. Dkt. 88-7 at ¶ 5. She scheduled outside specialist appointments as directed by medical providers and noted on the inmate’s medical chart when the appointment was scheduled. Id. She occasionally responded to a HCRF after reviewing a patient’s medical record and conferring with a medical provider or nurse. Id. She did not formulate treatment plans or override the medical judgment of the medical providers. Id.

         On October 4, 2016, Mr. Gooch was seen by Dana Miller, PT, for the first of four visits. Dkt. 88-4 at 139-40. She noted Mr. Gooch had left hemiparesis after an earlier stroke and wore an AFO. Id. He had been seen by Ms. Miller in January 2015 for issuance of his AFO. Dkt. 148-1 at ¶¶ 19-20. He told her he had received a book of PT exercises that he had been following faithfully until he fell and injured his knee on August 31, 2016. Dkt. 88-4 at 139-40. Ms. Miller noted left thigh atrophy, tight hamstrings and quads, and good patellar mobility (but accompanied by pain). Id. Mr. Gooch was issued a written copy of flexibility exercises and strengthening for lower extremities and encouraged to use a stationary bike. Id.

         Mr. Gooch continued his physical therapy sessions with Ms. Miller in October and November 2016. Dkt. 148-1 at ¶ 9. On October 24, 2016, Mr. Gooch was seen by Tamara Smith for a nurse visit in response to his HCRF complaining of knee pain when he walked. Dkt. 88-4 at 127-29. He said physical therapy was not improving his pain. Id. He was provided crutches and referred to a medical provider. Id.

         Another knee injection was scheduled for October 28, 2019, but it had to be rescheduled because Mr. Gooch was out for a court appearance in Marion County. Dkt. 88-4 at 119.

         On November 7, 2016, Mr. Gooch was seen for the third of his physical therapy sessions. Dkt. 88-1 at ¶ 17; dkt. 88-4 at 111-113. He said his left leg was feeling better and attributed the improvement to rest and staying off the leg. Id. He said that his knee was not popping anymore, but he had occasional pains and an itchy sensation under his knee cap. Id. He returned his crutches on that date and was using a cane. Id. He was advised to continue the stretches and avoid exercises that caused him more discomfort. Id. He was also advised to continue wearing the knee sleeve and his AFO. Id.

         On November 8, 2016, Dr. Person saw Mr. Gooch for a chronic care visit, during which they discussed his hypertension, drop foot, and prior CVA. Dkt. 88-2 at 189-191. Mr. Gooch indicated he was taking his hypertension medications as prescribed and complained that he was poked by sharp object while at the county jail. Id. Dr. Person’s assessment was hypertension and drop foot, for which Mr. Gooch was to continue wearing the AFO. Dr. Person also ordered labs because of the complaint of a puncture wound. Id.

         On November 29, 2016, at his fourth physical therapy session, Mr. Gooch reported doing the therapy exercises and that he had been going to recreation 2-3x/week and riding the bike. Dkt. 88-4 at 103. He stated his knee was “bearable, ” but still gave him problems and he believed it needed to be looked at more closely. Id. Mr. Gooch’s left knee range of motion remained within normal limits. Id. He stated that he believed his left AFO was allowing his left foot to “drop” a little and wondered if some rubber pieces at the ankle/foot articulation might need to be replaced. Id. Ms. Miller examined the orthosis and stated that she agreed that the orthotist/prosthetist might be able to troubleshoot any problems with his orthosis more effectively. Id. She reported that Mr. Gooch had no further need for physical therapy at this time and he was advised to continue the exercises and to see the doctor for further concerns. Id.

         On November 30, 2016, Mr. Gooch submitted a HCRF stating he believed his AFO needed repairs. Dkt. 88-2 at 57. He stated he had discussed this with the physical therapist. Id. He then signed a refusal of treatment stating he would wait for his annual medical review to discuss the need for any repairs to his AFO. Dkt. 88-2 at 58; dkt. 88-4 at 102.

         On December 13, 2016, Nurse Collins spoke to Mr. Gooch in response to his December 12, 2016, HCRF in which he stated he continued to have knee problems after his August 31 fall. Dkt. 88-2 at 55. He stated that he was waiting to see a physician to have him seen by an outside specialist. Id. Nurse Collins reported to Mr. Gooch that no outside visits were currently scheduled and that he should discuss his request with his medical provider at his next chronic care clinic visit. Id., dkt. 88-4 at 100.

         At all relevant times, Nurse Collins was employed as the chronic care nurse at CIF. Dkt. 88-8 at ¶ 2. Although she was not generally involved with direct patient care as the chronic care nurse, she would occasionally fill in as a floor nurse if needed. Dkt. 88-8 at ¶ 5. A floor nurse was responsible for patient triage, medication administration, communicating with the treating physician, patient education, and completing physician orders. Id. Nurse Collins did not prescribe medications or order repairs to medical devices. Id. She did not formulate treatment plans or override the medical judgment of the medical providers. Id.

         On December 18, 2016, Mr. Gooch saw a nurse in response to complaints of knee pain. Dkt. 88-4 at 97-99. The nurse noted that there was no swelling at that time, but referred Mr. Gooch to a provider for evaluation. Id.

         On December 23, 2016, Mr. Gooch saw Dr. Person for his complaints of knee pain. Dkt. 88-4 at 91-93. Dr. Person submitted a request for outside orthopedic consultation noting that Mr. Gooch experienced a CVA which resulted in left foot drop and use of an AFO. Dkt. 88-4 at 94-96. Mr. Gooch continued to report knee pain and instability on the left knee, pain behind the knee in the popliteal region and pain under the patella. Id. Dr. Person reported that Mr. Gooch’s knee ligaments were stable, but the musculature was weak secondary to the CVA. Id. He had been through a course of physical therapy and Dr. Person stated he needed some help to determine if there was anything else that might improve Mr. Gooch’s pain/mobility. Id.

         On December 27, 2016, the Utilization Management review responded to Dr. Person’s request for an outside orthopedic consultation with an alternative treatment plan that, as Mr. Gooch’s knee weakness appeared to be secondary to a CVA, physical therapy and home exercise program should be continued. Dkt. 88-2 at 217. On December 28, 2016, Ms. King made an administrative note of the alternative treatment plan. Dkt. 88-4 at 90.

         On January 3, 2017, Mr. Gooch submitted a HCRF stating that he would like to request an MRI of his left knee. Dkt. 88-2 at 51. Nurse Collins responded that he should discuss this ...


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