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Ross v. Fogam

United States District Court, S.D. Georgia, Savannah Division

March 20, 2018

MILTON ROSS, Plaintiff,
v.
DOCTOR ERIC FOGAM, Defendant.

          ORDER

          J. RANDAL HALL, CHIEF JUDGE

         Before the Court is Defendant's motion for summary judgment. (Doc. 107.) The Clerk has given Plaintiff notice of the summary judgment motion and the summary judgment rules, of the right to file affidavits or other materials in opposition, and the consequences of default. Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), have been satisfied. For the following reasons, Defendant's motion is GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

          The facts construed in Plaintiff's favor, are as follows. Plaintiff Milton Ross is an inmate at Coastal State Prison ("CSP"). (Ross Dep., Doc. 108-2, at 9.) In 2002, Plaintiff was shot in the back while fleeing from police after committing an assault and armed robbery. (Id. at 9-10, 16.) Plaintiff was convicted and sentenced to serve a life sentence. (Id.)

         A. Plaintiff's Prior Medical History

         Bullet fragments have remained in Plaintiff's spine since he was shot in 2002. (Id. at 17.) Those fragments, which are too small to remove, have damaged Plaintiff's nerve tissue causing him to be in severe pain.[1] (Id. at 17-18.) In 2004, Plaintiff was diagnosed with cauda equina syndrome.[2] (Apple Report, Doc. 125-2, at 2.) Between 2002 and 2006, Plaintiff saw multiple doctors while incarcerated at Phillips State Prison (“PSP") and was further diagnosed with spinal stenosis.[3] (Id.) Plaintiff's doctors prescribed a litany of different drugs to treat his pain including Neurontin, MS Contin, Darvocent, Ultram, and Baclofen, but Plaintiff felt no relief. (Doc. 125-4, at 15, 17; Ross Dep. at 24.) In 2006, after Plaintiff had been given every "medicine conceivable, none of which worked, " Plaintiff's doctor began to consider implanting a spinal cord stimulator ("SCS"). (Doc. 125-4, at 23.) An SCS is an implantable device that uses electrical currents to block pain signals. (Apple Dep., Doc. 108-3, at 9.)

         On September 26, 2006, Plaintiff met Dr. Efrim Moore, a pain management specialist who decided Plaintiff was a proper candidate for an SCS implant. (Doc. 125-10.) A temporary implant was placed in October 2006 and Plaintiff reported a greater than fifty-percent pain reduction as a result thereof. (Doc. 125-12.) A permanent SCS was implanted on December 15, 2006. (Id.)

         On August 13, 2010, Plaintiff underwent surgery to repair a fractured lead on his SCS. (Apple Report at 4.) Shortly after this surgery, Plaintiff started exhibiting symptoms of a life-threatening infection. (Id.) Because of this infection, which was later revealed to be methicillin-resistant Staphylococcus aureus ("MRSA"), doctors were forced to remove Plaintiff's SCS. (Fogam Aff., Doc. 111, ¶ 8.) The doctors who removed Plaintiff's SCS allegedly recommended that Plaintiff see a specialist to discuss future treatment. (Doc. 125-24, at 2; Ross Dep. at 37.) After his hospitalization, Plaintiff was transferred to Men's State Prison ("MSP") on October 21, 2010. (Doc. 125-23, at 2.) With the SCS removed, Plaintiff's pain returned to his pre-implant levels. (Houten Dep., Doc. 110, at 150.)

         B. Defendant's Treatment Between 2010 and 2012

          Plaintiff was transferred to Coastal State Prison (“CSP") on November 17, 2010. (Id.) The next day, Plaintiff had his first appointment with CSP's medical director, Defendant Dr. Eric Fogam. (Apple Report at 4; Ross Aff., Doc. 125-1, ¶ 2.) Defendant concedes that he reviewed Plaintiff's file before the appointment and was aware that Plaintiff suffered from cauda equina syndrome and was in chronic pain. (Fogam Dep., Doc. 125-34, at 36-37, 80-81.) During this appointment, Plaintiff told Defendant about a pending specialist consultation and Defendant assured Plaintiff he would be sent to Dr. Moore. (Ross Dep. at 37.) Defendant renewed Plaintiff's prescriptions for Lyrica, Baclofen, and Motrin, but did not refer him to Dr. Moore. (Doc. 125-25.) Defendant denies that Plaintiff had a pending consultation and further alleges that Plaintiff was not complaining of uncontrolled pain, and therefore such a referral was unnecessary. (Fogam Dep. at 61-62, 75, 78.)

         On December 2, 2010, during an appointment with another CSP physician, Dr. Olantunji Awe, Plaintiff complained that he continued to suffer uncontrolled pain. (Ross Dep. at 63.) Dr. Awe responded by increasing Plaintiff's Baclofen dosage and prescribing a 90-day trial of Percogesic, a pain reliever. (Awe Aff., Doc. 109, ¶ 10.) On February 7, 2011, at Plaintiff's request, Defendant replaced Plaintiff's Baclofen with Neurontin, a medication that treats neuropathic pain. (Fogam Aff. ¶ 11.)

         On February 17, 2011, Dr. Awe ordered an x-ray of Plaintiff's hip, which was injured due to a fall. (Awe Aff. ¶ 11.) During a March 31, 2011 appointment to discuss his x-ray results with Defendant, Plaintiff reported that he continued to experience uncontrolled pain, that the medication he was taking was not effective, and that he needed to see a specialist. (Ross Dep. at 84.) In response, Defendant allegedly accused Plaintiff of malingering and told Plaintiff he "need[ed] to get out of the wheelchair and walk, "[4] and that there was nothing wrong with him other than “a mild case of arthritis." (Ross Dep. at 84.) On April 4, Plaintiff filed a grievance regarding Defendant's treatment, Plaintiff's uncontrolled pain, and his desire to see a pain specialist. (Doc. 125-2 9.) Pursuant to CSP policy, Defendant allegedly signed a witness statement responding to Plaintiff's complaint.[5] (Doc. 125-30.)

         Defendant and Dr. Awe continued to treat Plaintiff with medication over the next year and a half. (Apple Report at 6.) During each of these appointments, Plaintiff complained that he was still in a great deal of pain, the prescribed medication had no effect, and that he wanted to see a specialist. (Ross Dep. at 63-64.) Unaware of any alternative treatment for Plaintiff but believing a specialist might know better, on March 7, 2012, Defendant ordered a consultation with an orthopedic specialist. (Fogam Aff. ¶ 6.) Nevertheless, Defendant subsequently placed Plaintiff's consultation on hold because:

(1) The underlying nerve conditions causing [Plaintiff's] chronic pain were irreversible; (2) they were in the process of managing his chronic pain with medication . . . . (3) there were indications - both objective and subjective - that medications were having some effect . . . and (4) they were not aware of any more efficacious treatment ....

(Defendant's Statement of Material Facts, Doc. 107-2, ¶ 66.) Plaintiff, on the other hand, denies that his pain improved over this period. (Ross Dep. at 60.) Defendant even conceded that by September 17, 2012, Plaintiff's pain had actually intensified. (Fogam Dep. at 114.)

         B. Defendant's Treatment Between 2012 and 2014

         On November 28, 2012, Plaintiff was referred to a specialist, Dr. Michelle Cintron. (Cintron Dep., Doc. 126-33, at 21.) While Defendant intended to send Plaintiff to an orthopedic specialist, Dr. Cintron is a sports management physician. (Id. at 7; Fogam Aff. ¶ 24.) Moreover, because of confusion regarding Defendant's referral form, Dr. Cintron did not assess Plaintiff for any kind of surgery. (Cintron Dep. at 26.) Instead, Dr. Cintron only recommended Defendant increase Plaintiff's Neurontin dosage. (Id. at 45.) Defendant asserts he was unaware of these referral errors and that he assumed Dr. Cintron had evaluated Plaintiff and decided he was not a candidate for surgery. (Fogam Aff. ¶ 28.)

         On January 30, 2013, Plaintiff was sent to a neurologist, Dr. Edward Mendoza. (Mendoza Dep., Doc. 126-36, at 11.) Dr. Mendoza recommended adjusting Plaintiff's medication and ordering an electromyogram to examine Plaintiff's nerve structure. (Mendoza Aff., Doc. 108, ¶ 12.) In July 2014, Defendant left his position at CSP and provided no additional treatment to Plaintiff. (Fogam Dep. at 15.)

         C. Plaintiff's Care From 2014 to Present

          Subsequent to Defendant's departure from CSP, Dr. Awe has taken over as medical director. (Awe Aff. ¶ 3.) Plaintiff continued to complain about his pain and on July 23, 2014, Plaintiff had another appointment with Dr. Mendoza, who again recommended adjusting Plaintiff's medication. (Mendoza Aff. ¶ 25.)

         Over the next two years, Plaintiff continued to receive treatment from Dr. Awe and Dr. Mendoza. On September 21, 2016, Plaintiff was evaluated by an orthopedic surgeon, Dr. John DeVine. (DeVine Dep., Doc. 110-1, at 34-40.) Dr. DeVine reported that surgical intervention was not warranted and recommended Plaintiff be referred to a pain specialist. (Id. at 39.) Dr. DeVine did not, however, evaluate Plaintiff for the placement of an SCS or a pain pump. (Id. at 48.)

         Plaintiff was next seen by a pain specialist at Augusta University Hospital, Dr. Dan Martin, on November 14, 2016. (Martin Dep. Vol. I, Doc. 110-2, at 33.) Dr. Martin recommended that Plaintiff continue his medications and return in two months. (Id. at 44.) Plaintiff returned on February 27, 2017, and while Dr. Martin did not believe Plaintiff was a suitable candidate for an SCS ...


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