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Truschke v. Chaney

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

May 2, 2019

JOHN TRUSCHKE, Plaintiff,
v.
PHYLLIS CHANEY, LPN; KIMBERLY BELL, LPN; and GUY AUGUSTIN, M.D., Defendants.

          ORDER

          HON. LISA GODBEY WOOD, JUDGE.

         Plaintiff filed this action seeking damages pursuant to 42 U.S.C. § 1983. Dkt. No. 1. Before the Court is Defendants Nurse Chaney, Nurse Bell, and Dr. Augustin's Motion for Summary Judgment. Dkt. No. 34. This Motion has been fully briefed and is ripe for review. For the reasons stated below, Defendants' Motion is GRANTED.

         BACKGROUND

         On February 6, 2017, Plaintiff was an inmate at Coffee Correctional Facility in Coffee County, Georgia, when he collided with another inmate while playing Softball. Dkt. No. 39-1 ¶¶ 1, 2. Defendant Phyllis Chaney, LPN, responded to the softball field. Dkt. No. 34-2 ¶ 4. Plaintiff was transported by wheelchair by Nurse Chaney from the softball field to the correctional facility's medical unit for evaluation. Dkt. No. 39-1 ¶¶ 4, 5; Dkt. No. 34- 2 ¶ 4. From there, Nurse Chaney and Dr. Augustin determined that Plaintiff needed emergency medical treatment and ordered that Plaintiff be sent to an emergency room ("ER") for independent evaluation and treatment. Dkt. No. 34-2 at 79, 242; Dkt. No. 34- 3 ¶ 4; Dkt. No. 34-4 ¶ 4.

         At the ER, x-rays were taken of Plaintiff's right knee and clavicle, and Plaintiff's right knee was placed in a knee immobilizer. Dkt. No. 34-2 at 381-82. Medical Records from the ER show that the x-rays were given the priority of "STAT." Id. at 381. The Doctor reviewing the knee x-ray diagnosed Plaintiff with a "[n] on-displaced fracture at the base of the tibial spine." Id. at 392, 394-95. While these x-rays were ordered, performed, and documented in Plaintiff's February 6, 2017 ER medical records, id. at 381, 384, an MRI was never ordered, recommended, or mentioned in Plaintiff's February 6, 2017 ER medical records. Further, the discharge instructions state that Plaintiff was referred to a surgeon "for an appointment as soon as possible" and instructed Plaintiff to "[b]ring these instructions with you for your appointment," but, again, the instructions do not mention an MRI. Id. at 406.

         While a knee immobilizer was ordered, id. at 382, a wheelchair was never ordered. In fact, the lone mention a wheelchair was a notation in the records that Plaintiff was discharged "via wheelchair." Id. at 409. Notably, an orthopedist at the ER, Dr. Depersio, recommended a knee immobilizer and a follow-up appointment, but not a wheelchair. Id. at 398. The discharge instructions provided by the ER for the fractured knee further evidence that a wheelchair was never recommended. The instructions state under the heading "HOME CARE" that the patient "will be given a splint, cast or knee brace" and to "use crutches or a walker." Id. at 404. Again, the discharge instructions did not mention a wheelchair. Finally, all three Defendants swear that they do not recall Plaintiff ever requesting a wheelchair, dkt. no. 34-3 ¶ 7; dkt. no. 34-4 ¶ 7; dkt. no. 34-5 ¶ 8, and Dr. Augustin swears that a wheelchair was neither recommended nor ordered by the ER medical providers, dkt. no. 34-4 ¶ 7.

         On February 17, 2017, Plaintiff went to Southeastern Orthopaedics and saw Joel Hernandez, PA-C. Dkt. No. 34-2 at 490; Dkt. No. 34-6 ¶ 4; Dkt. No. 39-1 ¶ 16. PA Hernandez recommended an MRI of Plaintiff's right knee. Dkt. No. 34-2 at 4 90; Dkt. No. 34-6 ¶ 5. The recommendation did not mention the need for a wheelchair. Id. The recommendation also noted that Plaintiff was given some range of motion exercises to do. Id. Dr. Barber, an orthopedist also of Southeastern Orthopaedics, reviewed PA Hernandez's impressions, opinions, and plans and agreed with them. Dkt. No. 34-6 ¶ 5. Dr. Barber swears that "relative to [Plaintiff's] February 17, 2017, visit" that "[t]here was nothing about [Plaintiff's] diagnosis and condition between the date of injury and February 17, 2017, that necessitated use of a wheelchair. A knee immobilizer and crutches were appropriate," id. ¶ 6, that "PA Hernandez did not order a STAT (urgent) MRI," id., that "[t]here was nothing about [Plaintiff's] condition on February 17, 2017, that indicated he required surgery at that time," id., and that "[t]here was nothing about [Plaintiff's] condition on February 17, 2017, that indicated he required follow-up prior to the completion of a routine MRI," id.

         Plaintiff, however, has a different recollection of the February 17, 2017 appointment. Plaintiff declares that at the February 17, 2017 appointment Dr. Barber, not PA Hernandez, saw Plaintiff and that Dr. Barber "reiterated to [him] that [Plaintiff] needed to have an MRI performed as soon as possible." Dkt. No. 39-1 ¶¶ 16, 17, 19. Dr. Barber swears, however, that only PA Hernandez saw Plaintiff on February 17, 2017, and that he, Dr. Barber, "did not personally see or speak to [Plaintiff] on February 17, 2017." Dkt. No. 35-6 ¶ 4. Notably, the documentation recapping the visit bears the signature of PA Hernandez. Dkt. No. 34-2. That document was "e-signed" by Dr. Barber ten days after the visit, on February 27, 2017. Id.

         On February 20, 2017, Defendant Dr. Augustin filled out an "Outpatient Referral Request" form requesting an MRI of Plaintiff's right knee. Dkt. No. 34-2 at 418. The form states that the "Ortho. request[ed] MRI." Id. Dr. Augustin swears that an MRI was not recommended or ordered by the ER medical providers and that he "was not aware of any fact which caused [him] to believe that a MRI was indicated or should be ordered by [him] at any time prior to PA Hernandez's February 17, 2017 order for MRI." Dkt. No. 34-4 ¶ 8. On March 6, 2017, an MRI was performed on Plaintiff's right knee. Dkt. No. 34-2 at 301, 420.

         On March 7, 2017, Plaintiff was transferred to a correctional facility in Tennessee. Dkt. No. 39-2 ¶ 28. On April 10, 2017, Plaintiff returned to Coffee Correctional Facility, and Nurse Bell performed his intake screening, noting that he was alert and had a brace on his knee. Id. ¶ 29.

         On April 17, 2017, Plaintiff returned to Southeastern Orthopedics; all parties agree that this time he was seen by Dr. Barber. Dkt. No. 34-2 at 491; Dkt. No. 39-2 ¶ 30. Dr. Barber's impressions were that Plaintiff had a "[m]edial tibial plateau fracture with lateral compartment impaction factures," meniscus tears, a torn ACL, and a possible torn PCL. Dkt. No. 34-2 at 491. Regarding the plan for Plaintiff, Dr. Barber noted that he "talked extensively" with Plaintiff "about the options for surgery." Id. Dr. Barber did "not have a specific answer for [Plaintiff that day] about whether he must or must not have surgery because obviously this is an elective decision that he must make." Id. Dr. Barber noted that he could not perform Plaintiff's surgery while Plaintiff was incarcerated, and Dr. Barber discouraged surgery at that time because Plaintiff's incarceration made rehab and recovery difficult. Id. Dr. Barber also noted that "for the time being he is going to work on quad strengthening, wean to weightbearing at 12 weeks post fracture, utilize crutches for the transition period and go to a knee sleeve with an ACE bandage." Id. Finally, Dr. Barber "e-signed" the document detailing Plaintiff's appointment on April 18, 2017, the day after the appointment. Id.

         Dr. Barber swears that at the April 17, 2017 appointment Dr. Barber "spoke to the patient at length regarding his ligament injuries and surgical options" and "advised him that surgery would be elective." Dkt. No. 34-6 ¶ 7. Dr. Barber also swears that he advised Plaintiff that Dr. Barber could not perform any surgery while Plaintiff was incarcerated and that there were many factors that weighed against electing to have surgery while Plaintiff was incarcerated. Id. Along this line, Dr. Barber informed Plaintiff that any surgery while Plaintiff was incarcerated would have to be done at an incarceration medical facility. Id. Dr. Barber also swears that he "instructed [Plaintiff] to work on quad-strengthening, wean to weightbearing at 12 weeks, use crutches during transition, and wear a knee sleeve with an ACE bandage." Id. Dr. Barber further swears that he did not tell Plaintiff that he required surgery within two weeks, that he did not tell Plaintiff that he needed re-break surgery, that he did not tell Plaintiff that his tibula fractures healed improperly, and that he did not refer Plaintiff to a specialist for "re-break" surgery. Id. ¶ 9. Finally, Dr. Barber swears that he holds the following opinions regarding Plaintiff's April 17, 2017 visit and thereafter: (1) Plaintiff's diagnosis and condition did not necessitate use of a wheelchair-a knee immobilizer and crutches were sufficient until 12 weeks after injury, when he could begin to bear weight on his knee, id. ¶ 8; (2) Plaintiff's condition on that day did not require ligament surgery, which would have been inappropriate because Plaintiff's fractures were healing, id.; (3) at that time Plaintiff's fractures were healing as expected and without complication, id.; and (4) "nothing about [Plaintiff's] condition . . . suggest[ed] that corrective surgery was required at that time or would be required in the future," id.

         On April 18, 2017, Dr. Augustin completed another "Outpatient Referral Request" for Plaintiff to see an orthopedic doctor for "evaluation for ACL reconstruction." Dkt. No. 34-2 at 327. On April 26, 2017, Plaintiff was evaluated by another orthopedist, Dr. Gaines. Dkt. No. 34-2 at 497-98. Dr. Gaines evaluation states under the heading "PLAN" that he "would certainly recommend some physical therapy to help [Plaintiff] with motion of his knee." Id. at 498. He also noted that Plaintiff could "weightbear [sic] as tolerated," and that Dr. Gaines was fine with Plaintiff switching to canes and crutches (instead of bearing weight on his knee). Id. Regarding surgery, Dr. Gaines "discussed this honestly with [Plaintiff] and discussed his need to rehab his knee and if he is doing well at the end of this, we could consider a discussion again regarding intervention surgically, however if we were to intervene and reconstruct his ACL and fix his meniscal tears at this time, it would likely make him a lot worse due to his pain tolerance and his preoperative stiffness." Id. Plaintiff was given a physical therapy script by Dr. Gaines, which noted a diagnosis of knee pain and an ACL deficient knee. Id. at 325. The script set forth an exercise regimen with detailed instructions on nine exercises that Plaintiff was to perform and how often he was to perform them. Id. at 326. Dr. Gaines also filled out an "Order Form" noting that Plaintiff's only diagnosis was knee pain and that Dr. Gaines ordered a cane and knee brace. Id. at 499. Finally, Dr. Gaines signed a Coffee Correctional Facility "Consult Sheet" that set forth the "Consulting Physician's Report"; the report noted under the heading "Orders/Recommendations," that Plaintiff needed a "cane, knee brace, [and] PT." Id. at 323.

         Plaintiff has a different recollection than what is contained in the medical records. Plaintiff declares that Dr. Gaines instructed Plaintiff that he needed physical therapy so that he could bend his right knee farther and that once he can bend his right knee sufficiently, Dr. Gaines could perform necessary re- break surgery. Id. ¶ 25. Plaintiff further declares that he was never provided physical therapy by Coffee Correctional, but instead, was merely provided e-stimulation by means of a TENS unit, which only occurred twice over the two months after his April 26 appointment. Id. ¶ 26.

         Upon Plaintiff's return from Dr. Gaines office on April 26, Nurse Bell saw Plaintiff and notified Dr. Augustin. Dkt. No. 39-2 ¶ 47. Dr. Augustin and Nurse Bell evaluated Plaintiff. Dkt. No. 34-2 at 42. Nurse Bell filled out a chart report and noted that Plaintiff "return[ed] with orders to have cane, brace, and PT." Id. The chart further states that Nurse Bell "[n]otified Dr. Augustin of [Plaintiff's] new orders and gave orders to place [Plaintiff] on PT twice a week on Monday and Wednesday for 3 months." Id. Under the heading "Plan," the chart report states that Plaintiff was "to start PT on Monday and Wednesday for 3 months." Id. Both parties agree that "Dr. Augustin considered Dr. Gaines' recommendations and ordered PT, knee sleeve, cane and follow up." Dkt. No. 39-2 ¶ 48. Plaintiff's "Condensed Chart Report," states that Dr. Augustin ordered "Physical Therapy" on April 30, 2017. Dkt. No. 34-2 at 3. On June 1, 2017, Plaintiff was seen by Dr. Augustin, who noted Plaintiff's history of recommendations for conservative management of his knee and that Plaintiff was "currently on PT." Id. at 40. On August 9, 2017, in another follow up with Plaintiff, Dr. Augustin noted that Plaintiff was "very angry" and "complaining about the PT he is receiving, calls it inadequate." Id. at 113. Another chart report from November 7, 2017, electronically signed by Dr. Augustin as its author, states that Plaintiff "has been on PT for several mos [sic] ." Id; at 33.

         On May 11, 2017, Plaintiff was released from segregation back to general population and issued a cane. Id. at 41. On May 24, 2017, Plaintiff began seeing Dr. Cronin, a physical therapist at the correctional facility, for physical therapy. Id. at 132. Dr. Cronin's notes, other than the notation for electronic stimulation, i.e., "ES," are illegible. Nevertheless, Plaintiff was seen by Dr. Cronin on the following dates: May 31, 2017, id. at 131; June 5, 2017, id. at 130; June 7, 2017, Plaintiff was marked as a no show, id. at 129; June 12, 2017, id. at 128; June 14, 2017, Plaintiff was marked as a no show, id. at 127; June 19, 2017, again, Plaintiff was marked as a no show, id. at 126; an undated entry, id. at 125; June 28, 2017, id. at 124; July 5, 2017, Plaintiff was marked as a no show, id. at 123; July 10, 2017, Plaintiff was marked as a no show, id. at 122; July 12, 2017, id. at 121; July 17, 2017, id. at 120; July 19, 2017, id. at 119; July 24, 2017, id. at 118; July 25, 2017, id. at 117; July 31, 2017, id. at 116; August 2, 2017, id. at 115; August 7, 2017, id. at 114; August 9, 2017, id. at 108; August 14, 2017, id. at 109; August 16, 2017, id; at 107; August 21, 2017, id. at 106; August 23, 2017, id. at 105; August 28, 2017, id. at 104; and August 30, 2017, id. at 103. Documentation of Plaintiff's sessions with Dr. Cronin continue at intervals of twice or once a week from September 2017 to late November 2017. id. at 91-102, 178, 180, 182, 304-08, 321.

         Defendants have provided an expert report from Dr. Michael T. Puerini, who is a correctional medicine expert and consultant. Dkt. No. 34-1 at 1. Dr. Puerini reviewed the Complaint, the Coffee Regional Medical Center medical records of Plaintiff, the Coffee Correctional Facility medical records of Plaintiff, the Southeastern Orthopaedics (where Dr. Barber practices) medical records of Plaintiff, and the Optim Orthopedics (where Dr. Gaines practices) medical records of Plaintiff. Id. at 2. After reviewing these records Dr. Puerini opined that "no outside provider recommended or ordered a wheelchair for Mr. Truschke and a wheelchair was not indicated." Id. at 6. Similarly, Dr. Puerini opined:

There is no evidence of any policy, procedure, rule, mandate or protocol which prohibited providers in the emergency room from performing a MRI of Mr. Truschke on 02/06/17. If the medical providers in the emergency room thought a MRI was indicated, the standard of care required them to perform one or order one to be done on an outpatient basis. There was no medical indication noted in the CRMC emergency room for this procedure, so MRI procedure was neither done nor suggested.

Id. at 6-7. Finally, Dr. Puerini concluded:

The allegations set forth by Mr. Truschke in his Complaint are not supported by his medical records. Mr. Truschke was timely referred for treatment following an injury sustained during an alleged recreational activity. He was treated by an independent emergency room and two independent orthopedic surgeons. "Re-break" surgery was never contemplated for Mr. Truschke as it was not indicated. Mr. Truschke's fracture(s) healed as expected and without complications. Mr. Truschke's orthopedic surgeons both discussed the possibility of MCL, ACL, and/or PCL repair surgery with Mr. Truschke, but neither recommended it.

Id. at 8.

         Plaintiff filed this action to recover damages and other compensation, which he claims is ...


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