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Calvert v. Paniagua

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

May 8, 2018

MATTHEW W. CALVERT, Plaintiff,
v.
MIGUEL PANIAGUA, M.D., et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE

         This is a civil rights action filed by Plaintiff, pursuant to 42 U.S.C. § 1983. The matter is before the Court on Plaintiff's Motion for Preliminary Injunction, [Doc. No. 40]. Defendants have filed a Response in opposition to the motion, Plaintiff has filed a Reply, Defendants have filed a Sur-Reply and Plaintiff has filed a Sur-Response. For the reasons set forth below, the Motion is granted in part and denied in part.

         Facts and Background[1]

         Plaintiff is currently incarcerated in the Crossroads Correctional Facility in Camden, Missouri. Plaintiff claims he has been denied medical care in violation of the Eighth Amendment. Plaintiff's Amended Complaint alleges the following:

         Prior to January 2011 and continuing to the present, Corizon, f/k/a/ Correctional Medical Services (“CMS”) was retained under contract with the Missouri Department of Corrections (“MDOC”) to provide medical services to inmates in the MDOC penitentiary system, including Plaintiff.

         In 2005, the Plaintiff was diagnosed with Celiac Disease (“CD”), which is a gluten sensitive entizopathy. CD causes a permanent intolerance to ingested gluten.

         In Hemochromatosis, a hereditary disorder, too much iron is absorbed, resulting in the accumulation of iron in the body. Hemochromatosis is potentially fatal but usually treatable. The gene associated with Hemochromatosis was identified and widely published in a myriad of medical journals, including the Journal of American Medicine (“JAMA”) prior to 2011. The standard of community care for identifying Hemochromatosis is through specific blood tests that measure the levels of two substances: (a) Ferritin, a protein that stores iron, and: (b) the iron in transferrin, the protein that carries iron when it is not inside red blood cells. If these levels are high, genetic tests are to be immediately performed to confirm the diagnosis. A liver biopsy should also be performed to determine whether the liver has been damaged.

         CD intersects with Hemochromatosis in two ways: a. Cases have shown the precipitation of iron overload and diagnosis of hereditary hemochromatosis after successful treatment for CD. b. An increased frequency in mutations in the Hemochromatosis susceptibility gene (“HFE”) - suggesting a protective role against iron deficiency by enhancing iron absorption.

         In August 2011, the Plaintiff was delivered to the custody of the MDOC, and upon his induction he immediately disclosed to the medical staff that he had been diagnosed with CD. Thereafter, the Corizon medical personnel at the Fulton Reception and Diagnostic Center further diagnosed Plaintiff as anemic and deliberately prescribed Ferrous Sulfate (iron pills) for anemia, albeit ingesting iron pills for anemia of chronic disease is extremely harmful and likely fatal. These contraindications and the potential fatality rate were not disclosed to the Plaintiff when Ferrous Sulfate was proscribed by Corizon staff.

         Thereafter, the Plaintiff was transferred to the Northeastern Correctional Center (“NECC”) and the care of that site's Corizon medical staff, to include Dr. Archer.

         On January 3, 2013, Plaintiff's labs results indicated that his iron and ferritin level were extremely low, and he was scheduled for a doctor appointment with the chronic care clinic physician, Dr. Archer. When examined by Dr. Archer, he opined that he was “very concerned” about these results and that he was going to prescribe 200 mg iron infusions twice weekly until the Plaintiff's iron levels returned to normal.

         Plaintiff advised Defendant Archer at that encounter that he had already been taking Ferrous Sulfate by mouth for approximately one year, whereupon Dr. Archer stated that because of the history of CD, Plaintiff was not able to absorb iron in pill form and would have to take the IV infusions of iron.

         Dr. Archer refused to test the Plaintiff for hemochromatosis due to the costs of the tests, albeit there were clear indicators that Plaintiff had that disease. Dr. Archer further refused to have Plaintiff's serum ferritin or C-reactive protein (“CRP”) tested to differentiate between iron deficiency anemia, where oral iron can be beneficial and anemia of chronic disease, where oral iron should not be given, due to the costs of the further testing.

         Dr. Archer is not a Hematologist, nor did he possess any specialized training in hematology or diseases related to that field of medicine and refused to consult with a specialist of this nature due to the costs of the consult.

         For more than a year, the Plaintiff endured increasingly painful 200 mg. iron infusions intravenously twice weekly. Approximately six months into the first year of these infusions, Plaintiff's iron levels returned to normal.

         During the entire year of 2013 the Plaintiff's Ferritin level consistently rose into toxic and deadly ranges. Although the Ferritin levels were consistently rising into the permanently harmful ranges, Dr. Archer ordered the infusions continued. Plaintiff inquired of Dr. Archer whether these infusions should be continued in light of the fact his Ferritin levels had reached the range of 2, 000 ng/mL or toxicity, in that they were more than six times normal - to which he replied he was going to continue the infusions until Plaintiff's liver became too damaged to endure them.

         At that same meeting, Dr. Archer admitted that Plaintiff's liver enzymes, AST and ALT's, were elevated into the high levels but he wasn't too worried about the levels. Dr. Archer secreted the fact that these levels, as well as the decreased hemoglobin and glucose levels, indicated onset of severe organ damage by iron overload and hemochromatosis which had become deadly.

         During that period of time, Plaintiff suffered from symptoms that included extreme and relentless fatigue, weakness of his body, weight loss, severe abdominal pain, joint aches and joint pain, grey/bronzing of his skin, and chest pains, which he reported to Dr. Archer repeatedly. Dr. Archer dismissed those marked symptoms and deliberately continued the iron infusions.

         Dr. Archer again refused to send Plaintiff to a hematologist, dismissing his request for a specialist consult, although among all iron overloading disorders, hereditary hemochromatosis and transfusion dependent iron overload in hereditary anemia's, are central when considering the epidemiological impact, extent of burden and risk for iron related morbidity and mortality.

         Thereafter, Dr. Archer continued the iron infusions for the remainder of 2013.

         By August of 2013, Plaintiff's iron levels were dangerously high, his ferritin level reaching 651 ng/mL, nearly double the normal level, and his iron saturation levels had reached 56 - well within the high range and certainly beyond the treatment parameters originally explained at the onset of the infusions. Plaintiff's liver enzymes likewise were severely elevated to 80, almost twice the normal level, a prime indicator that the liver was beginning to fail due to the iron saturation and overload.

         On September 5, 2013, Dr. Archer requested that Plaintiff be referred to a hematologist or oncologist. This request was denied by Dr. Bredeman, the regional Medical Director for Corizon.

         Despite the fact that Plaintiff had not seen a specialist and testing for genetic hemochromatosis had been refused, Dr. Archer deliberately continued these iron infusions. Dr. Archer persisted with Plaintiff's iron infusions well into 2014, during which time his Ferritin levels, ALT's, AST's, and iron levels remained elevated to from 3 to 7 times their normal levels. By early 2014, his Transferrin Iron Binding Capacity (“TIBC”) and Unsaturated Iron Binding Capacity (“UIBC”) remained dangerously low. Indeed, in some instances they could not even be calculated due to the dangerously low UIBC. At this point, Plaintiff's ferritin level had risen to over 2, 000 ng/mL.

         Plaintiff claims that the ultimate result was that the Plaintiff was deliberately subjected by Dr. Archer to deadly, toxic iron over-load, iron poisoning and iron saturation, and Dr. Archer's unconstitutional behavior persisted in the face of the well-established medical indicators instructing him to cease the painful, invasive infusions or risk the Plaintiff's death or permanent damage to his organs.

         Subsequent to Defendant Archer leaving his employment with Corizon, Plaintiff began seeing Dr. Cabrera on a regular basis in 2014. Dr. Cabrera, whom had been reviewing the Plaintiff's blood work, noticed the extremely and dangerously high ferritin levels present in the Plaintiff's blood and Plaintiff's unusual orange yellow skin tinge. Dr. Cabrera asked Plaintiff if Dr. Archer was trying to kill him by giving him these iron overloading infusions when his ferritin levels were so high (over 2, 000 ng/mL), which indicated Plaintiff's entire body was being poisoned by the iron infusions and couldn't eradicate the iron from his system in such dangerously high levels. Dr. Cabrera further opined the iron was building up in Mr. Calvert's vital organs as a result of Dr. Archer giving him iron overload and could be stored excessively in Plaintiff's liver as evidenced by the high AST and ALT levels, the spleen and bone marrow, or worse, the brain -which would be terminal. The iron infusions were halted.

         Plaintiff demanded to be referred to a hematologist, a specialist in these types of diseases, cellular and molecular poisonings. Dr. Cabrera refused to refer Plaintiff to a hematologist, because Corizon wouldn't approve the specialist consult due to the costs involved. At this meeting Plaintiff then requested that Dr. Cabrera order the genetic testing to confirm that he actually had hemochromatosis and not some other disease, such as ACER. Again, Dr. Cabrera refused to refer Plaintiff for genetic testing because Corizon wouldn't approve this type of testing because the cost of the genetic testing would be more expensive than a specialist consult, and they would not approve these types of tests due to the costs involved. Dr. Cabrera instead apparently had a phone call with Dr. Waheed, a hematologist, and decided to wait and see if Calvert's numbers would go down on their own.

         While Plaintiff continued to suffer from iron toxicity, he was seen by Defendant Dr. Proctor. Dr. Proctor assessed Plaintiff's condition as seizure disorder, celiac, and anemia, failing to address Plaintiff's iron toxicity.

         When Plaintiff returned to Dr. Proctor to discuss his lab results, Dr. Proctor again did nothing for Plaintiff's iron toxicity, but merely ordered a recheck in one month.

         When Plaintiff's numbers remained elevated months later, another physician, Dr. Rardin, asked that Plaintiff be referred to a hematologist/oncologist for chelation therapy. Defendants, Drs. Babich and Kosierowski, denied the request for a consult or for chelation, and instead authorized phlebotomies. Plaintiff did not receive his first phlebotomy until December 2014.

         Throughout the first six months of serial phlebotomies, Plaintiff endured severe pain, fatigue, excessive loss of blood, tiredness, weakness, weight loss, severe abdominal pain, joint aches and pains, other arthritic type pain, retained graying and/or bronzing of his skin, and suffered from severe, excruciating chest pains, as though he was suffering from heart attacks.

         After enduring six months of six hour long, serial phlebotomies twice per month, with very little drop in the ferritin and iron levels, and his TIBC levels remaining dangerously low, Plaintiff demanded again to see a hematologist and a geneticist for genetic testing to determine the origin and extent of the intentional iron overloading, as well as the cellular damage exacted by iron overloading. The Plaintiff further requested that he be given treatment within the standard of community care for iron overload, that being iron chelation.

         Iron chelation has been the industry standard prior to 2011. Iron chelation removes iron from the blood with a chelation agent such as: desferrioxamine (“Desferal”) or deferasirox (“Exjade”), both of which bind with iron in the blood and cells to excrete the iron through the patient's urine.

         Dr. Cabrera admitted to Plaintiff that iron chelation is the industry standard for iron overload albeit this treatment is far too expensive and Corizon would not, under any circumstances, pay for such costly drugs. Plaintiff literally begged Dr. Cabrera to place an order for the drug, which he finally agreed to.

         Within a couple days Plaintiff was summoned back to medical and advised by Dr. Cabrera “the iron chelation was denied by Dr. Babich” at Corizon's corporate office, because “‘Corizon is not going to pay for this drug because it's too expensive.'” He then asked ...


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