United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion for summary judgment
filed by defendant R. Eric Bessey, D.D.S., and the motion for
summary judgment filed by defendants Ernest W. Jackson,
D.D.M., Corizon LLC, Corizon Health, Inc. and Corizon, Inc.
(the “Corizon defendants”). Plaintiff Jim Harris,
Jr., has responded in opposition to both motions, and the
issues are fully briefed.
a Missouri prison inmate, brings this action pursuant to 42
U.S.C. § 1983, claiming that the defendants were
deliberately indifferent to his serious medical needs, in
violation of the Eighth Amendment. Defendant Bessey is an
oral surgeon in private practice who performed surgery on and
provided post-operative treatment to the plaintiff. At all
relevant times, Corizon, LLC was under contract with the
State of Missouri to provide medical and dental care to
prison inmates. Defendant Jackson was Corizon's dental
director whose duties included providing dental services to
inmates in the Southeast Correctional Center (SECC).
1995, plaintiff was involved in an automobile accident which
resulted in several fractures to his facial area, including a
fractured right mandible. On November 24, 1995, plaintiff
underwent surgery to repair the facial fractures, which
included the fixation of an external plate to his right
mandible. After the surgery, plaintiff developed an
infection. He was admitted to Cook County Hospital from May
20, 1996 to May 28, 1996 for nonunion, osteomyelitis,
abscess, and infection of the right mandible. Plaintiff was
treated with antibiotics and it was determined that he was
allergic to penicillin.
1997, while confined at Centralia Correctional Center,
plaintiff received surgery to address continued discharge
from the surgical wound; as well as difficulty eating, pain,
and infection. As a result of the surgery, the drainage
stopped and the infection subsided, but plaintiff continued
to complain of difficulty eating, jaw pain, and a continuing
nonunion of the right mandible.
August 2010, plaintiff was confined in the Pemiscot County
Jail where he completed a medical intake form. On the form,
plaintiff reported a history of heart attack and a nervous
disorder, but he left blank the section about allergies.
Plaintiff received treatment for his jaw again in August of
2010, after complaining of drainage associated with the
infection and worsening pain. He was administered penicillin
and, within two days, plaintiff developed hives and
experienced nervousness, swelling, and itching.
was taken to see Dr. Robert Ward, an oral surgeon, on August
27, 2010. According to Dr. Ward, plaintiff did not report any
allergies to medications. Dr. Ward diagnosed plaintiff as
having an existing non-union of a right mandible fracture and
the temporomandibular joint (TMJ) of the left side of the
face. Medication was prescribed, and Dr. Ward recommended
that plaintiff undergo surgery on his lower jaw to create a
normal union in the jaw.
13, 2012, plaintiff was transferred to the Eastern Reception,
Diagnostic Correctional Center (ERDCC). Plaintiff was seen
for complaints of soreness in his jaw by Snowber Fazili, a
dentist employed by Corizon. Dr. Fazili discussed Dr.
Ward's evaluation of plaintiff with defendant Jackson on
December 3, 2012. Dr. Jackson reviewed Dr. Ward's
evaluation and gave approval for plaintiff to be seen by an
was transferred to SECC on February 26, 2013. He was referred
to defendant Bessey to address ongoing complaints with his
jaw. Dr. Bessey performed a clinical examination, reviewed
the plaintiff's chief complaints, obtained a health
history from plaintiff, and took radiological images at the
initial examination. He recommended that plaintiff undergo
surgery of the right mandible.
6, 2013, Dr. Bessey performed an open reduction allogenic
bone graft with internal fixation of a metal plate. The graft
consisted of ground bone obtained from a bone bank that was
enhanced with platelets from platelet-rich plasma. On a
health history form that plaintiff signed, the response
“No” was given to the question whether plaintiff
was allergic to penicillin. In his deposition, plaintiff
denied making that response and testified that he did report
an allergy to penicillin. Dr. Bessey testified that he relied
on the information in the health history form. He further
testified that he asked plaintiff if he were allergic to any
drugs and plaintiff responded that he was not. Dr. Bessey did
not try to obtain the medical records that included the
plaintiff's initial jaw injury and operation in 1995.
Before the surgery, Dr. Bessey ordered intra-operative
Clindamycin, an antibiotic. A course of Clindamycin was
ordered for plaintiff to continue after surgery. Plaintiff
testified that he told Dr. Bessey that he'd previously
been prescribed Clindamycin for an infection and it was
7, 2013, plaintiff returned to Dr. Bessey for a follow-up
examination. Plaintiff saw Dr. Bessey again on May 14, 2013
with complaints of swelling and pain on the right side of his
face. Dr. Bessey told plaintiff to continue taking the
Clindamycin for ten days and to rinse with Peridex. When
plaintiff returned on May 21, 2013, he again complained of
swelling and pain on the right side of his face. Dr. Bessey
instructed plaintiff to continue the Clindamycin and Peridex
and to return in two weeks to evaluate the healing.
23, 2013, plaintiff saw Dr. Theodore Ostrom, an oral surgeon
at SECC. Plaintiff complained about pain in his right jaw and
swelling on the right side of his face. Dr. Ostrom diagnosed
plaintiff with cellulitis on the right side of the face in
the jaw and temporalis area and removed the suture from the
4, 2013, plaintiff presented to Dr. Bessey with complaints of
right facial swelling and a bad taste in his mouth. Dr.
Bessey noted that there was delayed healing of the repair
site, the fixation plate was exposed, and some debris was
present. Dr. Bessey continued plaintiff on Clindamycin and
Peridex and prescribed ibuprofen for pain.
saw Dr. Ostrom on June 5, 2013, complaining of jaw and chin
pain and an “infection taste” in his mouth.
Medical Record [Doc. 71-10, at p. 65]. Dr. Ostrom
instructed plaintiff to continue the course of medication
prescribed by Dr. Bessey.
returned to Dr. Bessey on June 25, 2013. Dr. Bessey noted
that plaintiff had “been on long term clindamycin
without improvement.” Id. at p. 69. The
medical record also shows that plaintiff told Dr. Bessey that
“clindamycin was ineffective in [the] past.”
Id. Plaintiff's internal fixation plate was
exposed and there was swelling in his right cheek. Dr. Bessey
recommended a consultation with an infectious disease
specialist, which was approved by Corizon on June 28, 2013.
The specialist recommended that plaintiff undergo an MRI
which was approved by Corizon on July 10, 2013.
returned to Dr. Bessey for further evaluation on July 19,
2013. During the visit, Dr. Bessey noticed that the surgical
wound was more closed and the swelling had diminished. Dr.
Bessey obtained and sent out cultures for culture and
sensitivity testing. Based on the results, he believed that
the infection “was responding to clindamycin [but] it
was just very slow.” Bessey depo. at p. 95
[Doc. 71-3]. Dr. Bessey also learned from the test results
that plaintiff had a resistance to Clindamycin. Id.
p. 96. Consequently, on July 30, 2013, Dr. Bessey, ordered
that the Clindamycin be discontinued and prescribed
Augmentin, an antibiotic within the penicillin family.
August 8, 2013, plaintiff complained to Dr. Doyle at SECC
that he had nausea and vomiting, and thought he was allergic
to the antibiotic he was taking. At Dr. Bessey's
direction, Dr. Doyle changed plaintiff's prescription to
penicillin. On August 13, 2013, Dr. Bessey again recommended
that plaintiff see an infectious disease specialist.
August 17, 2013, plaintiff went to the SECC infirmary
complaining of an allergic reaction to penicillin. Upon
examination, a nurse observed that plaintiff had marked
facial swelling and hives on his arms and buttocks. He was
given Benadryl and remained in the infirmary overnight.
Suspecting that plaintiff's hives were caused by the
penicillin, a doctor at SECC ordered that penicillin be
discontinued. On August 25, plaintiff complained of an
itching and burning rash that he believed was caused by
penicillin. Medical personnel at SECC examined him and
prescribed Benadryl and prednisone On August 26, 2013,
Corizon approved the request for a referral to an infectious
disease specialist. Plaintiff was seen by the specialist,
Lorenzo McKnelly, D.O., on September 3, 2013. Dr. McKnelly
noted the “ongoing infectious process” and
recommended that the plate be removed from plaintiff's
jaw if possible to help address the infection. [Doc. # 71-13,
October 29, 2013, Dr. Bessey removed the metal plate from
plaintiff's right mandible. He prescribed Tylenol III and
Motrin for pain. Plaintiff was seen by Dr. Doyle at SECC on
November 6, 2013. Dr. Doyle found that the surgical site
seemed to be healing. When plaintiff saw Dr. Bessey on
November 19, 2013 it was noted that, although plaintiff had
some swelling in the right cheek, the surgical site was
closed and there was no drainage and no active infection.
was seen by Dr. Doyle at SECC on December 19, 2013. Plaintiff
stated that the draining and infection were all gone, but
that his TMJ on the left side of his face was uncomfortable
from time to time. Plaintiff also stated that he still had
severe pain in the lower right jaw from time to time. Dr.
Doyle instructed plaintiff to follow-up with Dr. Hakala for
reevaluation of the pain and prescription for pain
medication. Dr. Doyle noted that the surgical site looked
closed and was healing within normal limits. Dr. Doyle told
plaintiff that he would request that plaintiff see a
neurologist for complaints of right-sided jaw pain, an x-ray
for complaints of left-sided TMJ, and that plaintiff return
to Dr. Bessey for continued evaluation. On December 23, 2013,
Dr. Jackson approved Dr. Doyle's request for plaintiff to
be seen by Dr. Bessey.
was seen by Dr. Bessey on January 14, 2014, for reevaluation
of the healing of the mandible's nonunion, evaluation of
the left-sided TMJ pain and dysthesia of the right jaw. Dr.
Bessey stated that he would refer plaintiff for an evaluation
by neurology for evaluation of the dysthesia. Dr. ...