United States District Court, Eastern District of Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE
This matter, filed under 42 U.S.C § 1983, is before the Court on the motion for summary judgment filed by Brenda Mallard, M.D., the one remaining Defendant in the action. Plaintiff Louis Sean Bodway claims that Dr. Mallard, the medical director of health care for inmates of the City of St. Louis, Missouri, violated Plaintiff's constitutional rights by her deliberate indifference to his serious medical needs. For the reasons set forth below, Dr. Mallard’s motion for summary judgment shall be denied.
The record establishes the following for purposes of the motion before the Court. On July 27, 2012, Plaintiff sustained second- and third-degree burns on 60 to 70 percent of his body, including his upper torso, shoulders, and hands. He received skin grafts and pins in some fingers, and on November 26, 2012, Michael Smock, M.D., performed surgery to release scar contractures in Plaintiff’s shoulders and small fingers and thereby help with range of motion problems in his neck, shoulders, and hands. The surgery required a multiple-day stay at the hospital as an inpatient, from where Plaintiff went to a nursing facility. Upon his discharge from the hospital, Dr. Smock recommended physical and occupational therapy. During a follow-up on December 21, 2012, Dr. Smock demonstrated stretching exercises which he recommended that Plaintiff do to help prevent more scar contractures from forming. Dr. Smock, who knew that Plaintiff had a history of narcotic drug abuse (heroin) and mental health issues (schizophrenic disorder), prescribed Neurontin 300mg three times a day for pain and nerve damage, Oxycodone 15mg every 3-6 hours as needed for pain, and Oxycodone CR 60mg one tablet every 12 hours for pain.
On January 10, 2013, Plaintiff was arrested at the nursing facility where he was receiving the pain medication as prescribed, and confined in the infirmary at the St. Louis County Criminal Justice Center. On February 3, 2013, he was transferred to the Criminal Justice Center (“CJC”) for the City of St. Louis, and there came under the care of Dr. Mallard, an employee of the corporation that contracts with the City of St. Louis to provide medical care to its inmates. The pain medications that Plaintiff was provided while in the custody of St. Louis County were Morphine Sulphate ER 100mg twice a day, Morphine Sulfate ER, 15mg every 12 hours, Oxycodone 15mg every six hours as needed for breakthrough pain. This regimen provided Plaintiff with adequate pain relief. Upon his transfer to the CJC, Dr. Mallard ordered Vicodin three times a day for pain. On February 5, 2013, Plaintiff was transferred from the CJC to the City’s Minimum Security Institution (“MSI”).
It is not clear from the summary judgment record before the Court just how many doses of Vicodin Plaintiff received in the first days after his transfer to the City’s custody. Plaintiff attests by affidavit that during the first four or five days at MSI he was not administered any pain medication and suffered “excruciating” pain which he reported to MSI personnel, including at least one doctor. (Doc. No. 75-3.)
It is also not clear what Dr. Mallard knew about Plaintiff’s condition and medications prior to February 6, 2013, when she examined him. She did know he had been taking Oxycodon and that he complained of significant pain. According to Plaintiff, he told Dr. Mumford that he needed physical therapy. Dr. Mumford testified by deposition that after conversing with Plaintiff on February 6, 2013, she believed that he had completed his course of physical therapy. She testified that she had observed that Plaintiff had the ability to function at MSI, and so determined that he did not require additional physical therapy.
Plaintiff initiated this action pro se on February 13, 2013. On March 15, 2013, Plaintiff, with the assistance of appointed counsel, filed a motion for a temporary restraining order (“TRO”) seeking an order to compel Dr. Mallard to provide pain medications and physical or occupational therapy, in accordance with Dr. Smock’s treatment plan. A hearing was held that day, at which Dr. Mallard testified that she had prescribed Plaintiff Neurontin in addition to the Vicodin on February 19, 2013, but that two days prior to the hearing she met with Plaintiff and found out that the order had never gone through, and so that night she initiated another order which would take about seven to ten days to process. She testified that at this meeting with Plaintiff, he seemed comfortable and did not complain of pain. Dr. Mumford testified by deposition that by February 6, 2013, she knew about Plaintiff’s history of drug abuse and that her prescription was based on objective symptoms exhibited rather than on Plaintiff’s requests and complaints. She testified at the hearing that she could get a seven-day supply of Neurontin for Plaintiff to cover the interim until the re-order was processed, and she agreed to do so that day or the next morning.
The Court denied the TRO, except to the extent of ordering the expedited referral of Plaintiff to a plastic surgeon so that Plaintiff’s need for physical therapy or surgery could be assessed as soon as possible. The Court stated that its decision was based on Dr. Mallard’s testimony that, since her initial assessment of Plaintiff, there had been negative changes to his contraction condition, and on her commitment to provide Plaintiff with Neurontin that day or early the next day.
On March 18, 2013, Plaintiff filed an amended complaint seeking injunctive relief as well as damages for the pain and injury he sustained, claiming that Dr. Mallard violated his Eighth and Fourteenth Amendment rights by failing to provide him with therapeutic treatment and sufficient pain medication. On March 22, 2013, Plaintiff was taken to see Bruce A. Kraemer, M.D., who instructed that Plaintiff be given ibuprofen up to 2400mg daily, do stretching exercises, and be provided weekly therapy visits for advancing his upper extremity function. On May 9, 2013, Plaintiff was released from the custody of the City of St. Louis. The record is not clear as to what pain medications Plaintiff was provided after February 6, 2013, both before and after the TRO hearing.
On May 14, 2013, Plaintiff returned to Dr. Smock and complained that he was not given his pain medications and so could not continue his therapy. Plaintiff was advised to have further surgery due to new scar contractures. Dr. Smock told Plaintiff that nearly one year from the initial burn injury, Plaintiff should not be experiencing significant burn wound pain, provided Plaintiff with “a small amount of pain medication, ” and referred him to a primary care physician for long term pain management.
Dr. Mallard argues that her course of treatment does not reflect deliberate disregard of Plaintiff’s pain. Rather, based on her observations of Plaintiff’s objective pain symptoms and her experience with painful injuries, and taking into account Plaintiff’s drug abuse and “the risk of tolerance to narcotic pain medication, ” she believed that the pain medication she prescribed adequately addressed Plaintiff’s pain. She argues that the record “unequivocally demonstrates that Plaintiff did not require pain medication of greater potency” than what she prescribed. She argues that Plaintiff’s “mere disagreement” with her medical judgment regarding the appropriate quantity of pain medication does not constitute deliberate disregard of Plaintiff’s medical needs. Dr. Mallard further argues that the record establishes that she did not act with deliberate indifference regarding Plaintiff’s need for physical therapy.
In opposition to the motion for summary judgment, Plaintiff submits the May 1, 2013 sworn declaration of Dr. Smock, stating that the decrease in Plaintiff’s pain medication from what he was receiving while in the custody of the County to Vicodin three times a day was “phenomenal, ” was not likely to have managed his pain (assuming his prior medications were appropriate for that purpose), ...