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Harris v. Corizon, LLC

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

March 17, 2017

JIM HARRIS, JR., Plaintiff,
CORIZON, LLC, et al., Defendants.



         This 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.

         Plaintiff, 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).

         I. Background

         In 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.

         In 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.

         In 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.

         Plaintiff 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.

         On July 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 oral surgeon.

         Plaintiff 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.

         On May 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 ineffective.

         On May 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.

         On May 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 surgical wound.

         On June 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         On 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, p. 34].

         On 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.

         Plaintiff 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.

         Plaintiff 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. ...

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