United States District Court, S.D. Georgia, Waycross Division
LISA GODBEY WOOD, JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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,
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
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.
filed this action to recover damages and other compensation,
which he claims is ...