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Hankins v. Russell

United States District Court, E.D. Missouri, Eastern Division

September 30, 2016

RONNIE HANKINS, Plaintiff,
v.
TERRY RUSSELL, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's Motion for Summary Judgment, [Doc. No. 18] and defendants' Motion for Summary judgment, [Doc. No.25]. The parties respectively oppose the others' motions. For the reasons set forth below, the Court grants defendants' Motion and denies Plaintiff's Motion.

         Facts and Background

         Defendant has, in accordance with the Court's Local Rules, submitted a Statement of Uncontroverted Material Facts. Plaintiff failed to respond to Defendant's facts. Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 7-401(E) of this Court's Local Rules, Defendants' facts are deemed admitted. Local Rule 7-401(E) provides:

Rule 7 - 4.01 Motions and Memoranda.
(E) A memorandum in support of a motion for summary judgment shall have attached a statement of uncontroverted material facts, set forth in a separately numbered paragraph for each fact, indicating whether each fact is established by the record, and, if so, the appropriate citations. Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists. Those matters in dispute shall be set forth with specific references to portions of the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from movant's listing of facts. All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.

         Plaintiff is a 65-year-old male confined in the Missouri Department of Corrections.

         Dr. Carl Bynum is a physician licensed to practice medicine in the State of Missouri and, during the times relevant to Plaintiff's complaint, was an Associate Regional Medical Director for Corizon, LLC. As part of his responsibilities as an Associate Regional Medical Director, Dr. Bynum reviewed referral requests submitted by the patient's treating physician providing medical care within the Missouri Department of Corrections' facilities.

         Dr. Thomas Bredeman is a physician licensed to practice medicine in the State of Missouri and is an Associate Regional Medical Director for Corizon, LLC. Among his responsibilities as Associate Regional Medical Director, Dr. Bredeman reviews referral requests submitted by a patient's treating physician providing medical care within the Missouri Department of Corrections' facilities.

         Dr. David Mullen is a physician licensed to practice medicine in the State of Missouri and, during the time relevant to Plaintiff's Complaint, was one of the site physicians providing care to patients at Eastern Reception Diagnostic and Correctional Center located in Bonne Terre, Missouri.

         On January 18, 2011, the site physician conducted Plaintiff's annual physical exam, during which Plaintiff complained of abdominal pain in the upper right quadrant. The physician assessed an enlarged liver and ordered lab work, including a Hepatitis panel, and a chest x-ray relative to Plaintiff's complaint of abdominal pain. Because Plaintiff was asthmatic, he was being monitored in the asthma chronic care clinic, which included assessment by the chronic care clinic nurse and evaluation by the physician every six months. Plaintiff's January 25, 2011 lab work tested positive for Hepatitis C. On January 28, 2011, the site physician enrolled Plaintiff in the Chronic Care Clinic for Hepatitis (“Hepatitis CCC”), which includes regular examinations and monitoring of Plaintiff's condition. On January 31, 2011, the chronic care nurse counseled Plaintiff on his Hepatitis panel results. The nurse educated Plaintiff on Hepatitis C and informed Plaintiff that interferon and ribaviron are sometimes used to treat Hepatitis C, depending upon factors including the lab test results, a liver biopsy (when indicated) and the absence of contra-indications to the drugs.

         On January 27, 2011, Plaintiff's lab results showed Plaintiff's liver function was within normal limits (i.e. the ALT, AST, Albumin and Bilirubin results were within the reference range).

         On February 3, 2011, Dr. Mullen examined Plaintiff as part of a chronic care clinic appointment for Plaintiff's Hepatitis C. Plaintiff reported feelings of fullness or swelling of the right upper abdominal quadrant; that the prison food caused nausea and dizziness; and that Plaintiff felt tired all of the time. Plaintiff also reported no tattoos, IV drugs or intercourse within the past 30 years but stated that he had a blood transfusion in 1990. Dr. Mullen observed Plaintiff's abdomen to be soft and non-tender and noted no hepatosplenomegaly[1] and no tenderness over the gallbladder. Dr. Mullen also found no physical findings suggesting that Plaintiff had cirrhosis of the liver. Dr. Mullen reviewed Plaintiff's lab results and assessed Plaintiff's condition as stable. Dr. Mullen prescribed Dicyclomine for Plaintiff's complaints of abdominal pain and nausea, which Dr. Mullen associated with Plaintiff's gallbladder. Dr. Mullen also ordered a regimen of care for Plaintiff including chronic care clinic appointments every six (6) months; labs drawn every 12 months; and testing for Plaintiff's Hepatitis C viral load (“hcv rna”) to determine Plaintiff's viral count.

         On February 3, 2011, Dr. Mullen submitted a referral request for the HCV RNA quantitative study, which was approved. On February 10, 2011, Plaintiff was evaluated by Dr. Mullen for complaints of abdominal pain, bloating, right upper quadrant pain, eructation [belching] with meals, cramping and back pain. Dr. Mullen reviewed Plaintiff's lab results and noted that his liver enzymes were stable. Dr. Mullen also noted that Plaintiff's abdomen was tender. Suspecting gallbladder disease, Dr. Mullen submitted a referral request for an upper abdominal ultrasound, which was approved. On February 22, 2011, labs were drawn for the HCV RNA quantitative test, which was received on April 11, 2011. On February 23, 2011, Plaintiff had an x-ray taken of his upper abdomen.

         On March 25, 2011, a nurse assessed Plaintiff for complaints of stomach pain, which he reported increased when he ate greasy or sweet foods. The nurse recorded Plaintiff's vital signs and observed bowel sounds present and normoactive in all quadrants. The nurse also noted that Plaintiff presented with no signs of distress. The nurse referred Plaintiff to the site physician for follow up. On April 4, 2011, Dr. Mullen examined Plaintiff during a follow-up appointment to review Plaintiff's ultrasound results. Dr. Mullen noted that the ultrasound results showed a normal right kidney with cyst, the liver presented with some fatty infiltrate, the pancreas was not able to be evaluated, the gall bladder was poorly visualized and the study was unable to confirm or refute stones or wall thickening. Dr. Mullen assessed Plaintiff's symptoms as “highly suspicious for cholecystitis” [i.e. inflammation of the gallbladder] and referred Plaintiff for a HIDA scan for confirmation of gallbladder disease. On April 4, 2011, Dr. Mullen submitted a referral request for a HIDA scan. Dr. Bynum recommended an alternative treatment plan of a CCK-HIDA scan.[2] Plaintiff failed to report to the medical unit on April 5, 2011 and May 2, 2011 to allow for a medical assessment of his complaints of right side pain.

         On June 14, 2011, Dr. Mullen examined Plaintiff for complaints of acute back pain. Dr. Mullen observed that Plaintiff presented with a normal gait, muscle strength, tendon reflex, perianal sensation, posture, range of motion and hamstrings. Dr. Mullen also observed tenderness on Plaintiff's left thoracic spine, hip and pelvis and assessed Plaintiff with a low back strain. Dr. Mullen prescribed Plaintiff meloxicam for pain management and an exercise program and requested a follow up with Plaintiff in six months. On June 21, 2011, Dr. Mullen examined Plaintiff based upon Plaintiff's complaints of back pain and a chest rash. Dr. Mullen assessed Plaintiff with back pain, headache and a rash and prescribed doxycycline for the rash. The prescription for meloxicam was still current.

         On July 5, 2011, Plaintiff was seen by a nurse in the medical unit. At the assessment, Plaintiff reported to the nurse that his rash had cleared and denied any other problems.

         On July 26, 2011, labs were drawn as part of Plaintiff's care in the Hepatitis CCC. Plaintiff's lab results showed Plaintiff's liver function remained within normal limits (i.e. the ALT, AST, Albumin and Bilirubin results were within the reference range). On July 29, 2011, the chronic care nurse assessed Plaintiff during the Hepatitis CCC appointment and advised Plaintiff that most persons with chronic Hepatitis C will remain healthy and will not develop serious liver disease and that medications may not be appropriate depending on the status of Plaintiff's disease.

         On August 4, 2011, Dr. Mullen examined Plaintiff at the Hepatitis CCC appointment. Although Dr. Mullen observed Plaintiff's liver to be tender, Plaintiff's lab results showed liver function within normal limits and Plaintiff exhibited no signs or symptoms of decompensated cirrhosis. Dr. Mullen assessed Plaintiff's condition as stable and discussed with Plaintiff the process of workup for therapy and obtained written informed consent to begin the workup, for which the first step was to refer Plaintiff to mental health for assessment. Dr. Mullen also requested a second viral load count (“hcv rna quant”) following clearance of Plaintiff by mental health. Dr. Mullen ordered additional testing to determine whether Plaintiff was a potential candidate for interferon-based therapy.

         On October 4, 2011, the nurse assessed Plaintiff for complaints of side pain and a rash. The nurse noted a rash to Plaintiff's back, torso and arms and observed that the side pain was associated with eating and lying down. The nurse referred Plaintiff to the physician for further evaluation. On October 11, 2011, the nurse assessed Plaintiff for complaints of red itchy areas on Plaintiff's face and to discuss questions Plaintiff had regarding treatment for Hepatitis C. Plaintiff incorrectly reported to the nurse that he had placed multiple medical service requests for his Hepatitis C, had never been seen by a physician and wanted to get started on medications. The nurse referred Plaintiff to the physician and issued hydrocortisone cream for the red areas on his face.

         On October 17, 2011, Dr. Mullen examined Plaintiff for complaints of abdominal and lower back pain. Dr. Mullen observed spots on Plaintiff's abdomen and noted that Plaintiff was still lifting weights even with the low back pain. Dr. Mullen reviewed Plaintiff's lab results and noted no liver abnormality. Dr. Mullen assessed Plaintiff with lower back pain due to lumbar dysfunction and issued orders for benzoyl peroxide for the spots, Clindamycin (an antibiotic), and Salsalate for pain management.

         On October 20, 2011, Dr. Mullen assessed Plaintiff and discussed the next step in the Hepatitis C workup, which was to evaluate the Hepatitis C Genotype, since Plaintiff received the requisite mental health clearance. Dr. Mullen submitted a referral request to evaluate Plaintiff's Hepatitis C Genotype and prescribed prednisone for arthritis pain. The referral request for Genotype evaluation was approved by Dr. Bynum.

         On October 25, 2011, Plaintiff was scheduled for an appointment with the nurse to discuss the workup process for Hepatitis C, namely identifying Plaintiff's genotype. Plaintiff refused to have his vital signs recorded and reported to the nurse that he had already discussed genotype testing with the physician. The nurse instructed Plaintiff to follow up in sick call as needed.

         On November 1, 2011, Dr. Mullen issued an oral order to have Plaintiff's leg xrayed because Plaintiff reported to custody that he was setting off the metal detector at ...


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