Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Colen v. Corizon Medical Services

United States District Court, E.D. Michigan, Southern Division

March 27, 2018

JAMES EDWARD COLEN, Plaintiff,
v.
CORIZON MEDICAL SERVICES, et al., Defendants.

          Elizabeth A. Stafford, United States Magistrate Judge

         OPINION AND ORDER (1) ADOPTING IN PART REPORT AND RECOMMENDATION (ECF NO. 94) AND AMENDED REPORT AND RECOMMENDATION (ECF NO. 106); (2) OVERRULING AND SUSTAINING IN PART PLAINTIFF'S OBJECTIONS (ECF NOS. 92, 99); (3) OVERRULING CORIZON DEFENDANTS' OBJECTIONS AS MOOT (ECF NO. 95) (4) GRANTING CERTAIN OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 71, 79); AND (5) DENYING PLAINTIFF'S MOTIONS FOR EXTENSIONS OF TIME TO RESPOND (ECF NOS. 107, 109)

          PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

         Plaintiff James Edward Colen, a prisoner proceeding pro se, brings this 42 U.S.C. § 1983 action alleging violations of his Eighth and Fourteenth Amendment rights, as well as related state law claims, based upon alleged mistreatment by healthcare providers and staff at the Gus Harrison Correctional Facility (ARF) in Adrian, Michigan, where Plaintiff was incarcerated during the events described in his Complaint. Plaintiff sues the Michigan Department of Corrections (“MDOC”) and several MDOC employees and also sues Corizon Medical Services (“Corizon”) and several Corizon healthcare providers who are alleged to have provided treatment to Plaintiff over a number of years. Plaintiff's claims begin with the alleged misdiagnosis and mistreatment of an ankle injury that he suffered during a basketball game at ARF in November, 2010, and include the alleged deliberate indifference of the Defendants to his evolving medical needs, allegedly related to this misdiagnosis and mistreatment, over a period of years.

         Several Defendants have filed separate motions to dismiss and/or for summary judgment, some of which the Court has already ruled upon. Presently before the Court are Magistrate Judge Elizabeth A. Stafford's Report and Recommendations resolving the dispositive motions of two separate groups of Defendants: (1) Report and Recommendation (ECF No. 94) to GRANT Defendants Corizon Health, Inc., Alford, Brady, Jindal, Martin, Prasad, and Sudhir's Motion for Summary Judgment (ECF No. 79), to which both Defendants (ECF No. 95) and Plaintiff (ECF No. 99) have filed Objections. Both Defendants (ECF No. 100) and Plaintiff (ECF No. 98), have responded to the other parties' Objections. Plaintiff filed a Reply in support of his Objections. (ECF No. 101); and (2) Amended Report and Recommendation (ECF No. 106) to Grant MDOC Defendants VanAusdale, Kopka, Rothhaar and Klee's Motion to Dismiss and/or For Summary Judgment (ECF No. 71), to which Plaintiff has filed Objections (ECF No. 92.); Having conducted a de novo review, pursuant to 28 U.S.C. § 636(b)(1), of those parts of the Magistrate Judge's Report and Recommendations to which specific objections have been filed, the Court OVERRULES the Objections, ADOPTS IN PART the Magistrate Judge's Report and Recommendations, and GRANTS Defendants' Motions for Summary Judgment on Plaintiff's federal 42 U.S.C. § 1983 claims.

         I. BACKGROUND

         On or around November 10, 2010, Plaintiff suffered an injury to his right foot/ankle while playing a game of basketball at the ARF in Adrian, Michigan. (ECF No. 13, Pl.'s Amended Complaint (“Compl.”) ¶ 21, PgID 82.) On November 17, 2010, Plaintiff kited healthcare, stating that he had injured his ankle in a basketball game some days ago but it “didn't feel that bad” and he kept playing on it for about a week. (Compl. Ex. B, Healthcare Kites PgID 147.) Plaintiff stated that “then one day” he woke up and “couldn't hardly walk on it.” (Id.) Plaintiff was seen by ARF Nurse Arlene Rogers, “and another nurse, ” who diagnosed a sprain and gave Plaintiff an ace bandage to wear. (Compl. ¶ 22; Ex. B, 11/17/10 Kite PgID 147.) Plaintiff was also issued crutches, a “lay in with meals and meds OUT, ” and a temporary restriction of “no work assignment.” (ECF No. 81, Ex. 1, MDOC Certified Medical Records (“Med. R.”) PgID 813.)

         On or about December 9, 2010, Plaintiff kited healthcare again seeking to have his foot rechecked. Lynn Van Ausdale, RN, scheduled an appointment with the nurse to recheck Plaintiff's foot. (Med. R. PgID 814.) Plaintiff was seen on December 13, 2010, by nurse Deborah Ellenwood complaining of continued pain in his right ankle and also complaining of edema in his left toes and left hand. (Med. R. PgID 815.) The examination on December 13, 2010 noted no redness, bruising, or edema of the right ankle or the left foot, and found edema in hand to have resolved. Plaintiff was advised to purchase ibuprofen and to keep wearing the ace wrap on his right ankle and apply warm compresses to swollen hands in the mornings as needed for discomfort. Plaintiff was advised to kite again if symptoms did not improve. (Med. R. PgID 815.)

         On or about January 6, 2011, Plaintiff did kite again, complaining of continued pain in his ankle causing him to limp while walking, and requesting to be seen by a doctor and to have x-rays taken. (Med. R. PgID 818.) Nurse VanAusdale responded and an appointment was scheduled with a medical provider. (Med. R. PgID 819.) Plaintiff was seen again on January 10, 2011, by health services, and told to continue taking his ibuprofen and was informed that he had an appointment with the medical provider scheduled on January 12, 2011. Plaintiff was seen by Physician's Assistant Rosilyn Jindal for the first time on January 12, 2011. (Med. R. 820-21.) PA Jindal found minor swelling of the right ankle, no bruising or redness of the skin. (Med. R. 821.) Given Plaintiff's report of a sports injury, Jindal confirmed the diagnosis of an ankle sprain and saw no diagnostic indication of a fracture, i.e. no bruising, redness, or deformity, and no indication for an x-ray. She prescribed continued use of the ace wrap, elevation of the foot at night, continued use of non-steroidal anti-inflammatories (“NSAIDs”) along with Tylenol and a program of rehabilitation exercises. (Med. R. 821; ECF No. 79-2, March 15, 2016 Declaration of Rosilyn Jindal ¶¶ 1-8, PgID 658-61.)

         On January 30, 2011, Plaintiff kited again, this time complaining of swelling of both hands, sore wrists, swelling of his left knee and left foot. Plaintiff was seen by Victor J. Kaczmar, RN, ordered an ace wrap, and was scheduled to be seen on February 1, 2011. (Med. R. PgID 824-25.) On February 7, 2011, Plaintiff again presented to health care services complained of generalized musculoskeletal pain and was seen by PA Jindal. (Med. R. PgID 828; Jindal Decl. ¶ 9.) Plaintiff described an onset of symptoms 4 weeks prior, and did not identify any mechanism of injury. Both hands and his left leg were symptomatic with swelling and pain, and pitting edema was noted on Plaintiff's left lower leg. (Med. R. PgID 828.) Jindal examined Plaintiff's foot and ankle again and found no indication of a foot or ankle fracture. (Jindal Decl. ¶ 9.) Plaintiff was prescribed knee length support stockings and ordered to report for regular blood pressure monitoring due to a finding of an elevated blood pressure. PA Jindal suspected that Plaintiff's increased blood pressure may have possibly been causing the swelling. (Med. R. PgID 829; Jindal Decl. ¶ 9.) He was instructed to “ambulate daily and regularly, ” to avoid excessive salt and caffeine intake, to elevate his legs as much as possible and to continue taking ibuprofen twice daily. (Med. R. PgID 829; Jindal Decl. ¶ 9.) Jindal signed the medical detail order for Plaintiff's support stockings and ordered regular blood pressure checks. (Med. R. PgID 831; Jindal Decl. ¶ 9.) On February 9, 14, 21, 28, and March 7, 2011, Plaintiff's vital signs and blood pressure were monitored. (Med. R. PgID 831-36.) Jindal determined Plaintiff to be pre-hypertension based on these readings, which did not indicate treatment with medication at that time. (Med. R. PgID 837.) Plaintiff was advised on dietary and lifestyle modifications to address his pre-hypertension. (Med. R. PgID 837.)

         On April 11, 2011, Plaintiff kited healthcare again, asking to be seen for follow up care for the swelling in his left knee and lower leg and right wrist. (Med. R. PGID 839.) Plaintiff was scheduled by Nurse VanAusdale to be seen on April 14, 2011 by PA Jindal and x-rays of his left knee and wrists were ordered to rule out arthritis. (Med. R. 840.) Plaintiff was seen by PA Jindal on April 14, 2011, and complained of swelling in his left knee, popping, and mild pain with motion. PA Jindal suspected prepatellar bursitis, and Plaintiff was given an ace bandage for his left knee and Naprosyn for the inflammation and Tylenol for the pain and ordered to rest and ice the knee as much as possible. (Med. R. PgID 839-42; Jindal Decl. ¶ 10.) Jindal suspected arthritis and ordered x-rays of Plaintiff's right wrist and left knee. (Med. R. PgID 842; Jindal Decl. ¶ 10.) Plaintiff did have the x-rays on April 21, 2011, and both revealed normal soft tissue appearance and an overall “Normal” impression. (Med. R. PgID 844; Jindal Decl. ¶ 10-11.)

         On May 11 and 19, 2011, Plaintiff again kited healthcare complaining of pain and swelling in his left knee and right hands and wrist and pain in his right foot and ankle. Nurse VanAusdale scheduled Plaintiff to be seen on or about May 16, 2011 and Nurse Kaczmar explained to Plaintiff that he was scheduled to be seen on May 20, 2011. (Compl. ¶¶ 23-24, Ex. B, PgID 149; Med. R. PgID 845-47.) On May 20, 2011, Plaintiff was seen by nurse Christine Clark regarding complaints of chronic pain and swelling in his joints. Plaintiff was given a bottom bunk bed detail, elevator use authorization, and ordered a wood cane. (Med. R. PgID 847-50; Jindal Decl. ¶ 12.) Plaintiff subsequently declined the elevator pass, stating that “he does not need an elevator use pass.” (Med. R. PgID 851.)

         On May 26, 2011, Plaintiff was again seen by PA Jindal who noted Plaintiff's continued complaints of joint pain and swelling in hands, wrists, and right foot, symptoms which had been occurring for the past five months and were relieved by anti-inflammatories (“NSAIDs”) and pain medications. Jindal noted that Plaintiff did not meet the criteria for bottom bunk detail and cane based on his x-ray results but he would continue to be monitored for arthritis and was encouraged to follow up if the condition worsened or Plaintiff saw no improvement. (Compl. ¶ 25; Med. R. PgID 854-857; Jindal Decl. ¶ 13.) Jindal did not observe any sign of joint damage, a foot fracture, or ankle sprain in her notes. (Med. R. PgID 854-57; Jindal Decl. ¶ 13.)

         Plaintiff continued to refill his prescriptions for Naprosyn and, on July 14, 2011, Plaintiff was seen by Nurse Deborah Marine, complaining of pain in his left knee and right ankle, especially when he first gets up in the morning and puts weight on the ankle and leg, but stating that the ace wrap helped to relieve the pain. Plaintiff was given an order for crutches and two ace wraps with four clips. Nurse Marine referred Plaintiff to a provider and he was seen by PA Jindal on July 18, 2011. (Med. R. PgID 858-65; Jindal Decl. ¶ 14.) PA Jindal noted swelling over the lateral mallelous of Plaintiff's right foot and diagnosed a peroneal ankle sprain. Plaintiff was given materials on rehabilitation exercises, told to continue with ace wrap, and elevate and ice often. PA Jindal concluded that an x-ray of Plaintiff's ankle was not medically indicated, noting that an “x-ray of the ankle is not going to change the course of treatment for ankle sprain.” (Med. R. PgID 863-64; Jindal Decl. ¶ 14.)

         Plaintiff's Naprosyn and Tylenol continued to be ordered into October, 2011, when Plaintiff kited healthcare again on October 13, 2011, requested to see a doctor regarding swelling in his left knee, right foot, hands and wrists. Plaintiff stated that he did not want to see an assistant but needed to see a doctor. Nurse Ellenwood told Plaintiff that his prescriptions for Tylenol and Naprosyn had been renewed and that he would be examined by a nurse to determine whether he needed to see a doctor. (Compl. ¶ 26, Ex. B PgID 153-54; Med. R. PgID 865-70.) Plaintiff states that he was not scheduled to see a doctor and continued in pain “for the rest of the year.” (Compl. ¶ 26.) The medical records indicate that in fact Plaintiff was seen by Matthew Brown on October 18, 2011, and reported pain in his right ankle and left knee that was unchanged since July 2011, “some days worse than others, ” worse in the morning but improving throughout the day. (Med. R. PgID 871; Jindal Decl. ¶ 15.) The measurements of Plaintiff's left knee and right ankle were unchanged since May, 2011. (Med. R. PgID 871; Jindal Decl. ¶ 15.) Plaintiff stated that he was taking his Tylenol and Naproxen as prescribed and reported “relief after medicating.” Mr. Brown noted that Plaintiff walked out of health services “without difficulty.” (Med. R. PgID 871.) Plaintiff continued to refill his pain medications throughout October and November, 2011, and in December, 2011, Plaintiff indicated to healthcare that he wanted to discontinue the use of Tylenol and continue with the Naprosyn, which Plaintiff continued to fill throughout December, January, and February. In February, Plaintiff requested renewal of his Tylenol, which he was able to purchase at the prisoner store. (Med. R. PgID 873-83.)

         Plaintiff next kited healthcare in April, 2012, complaining of swelling in his left knee, right foot, hands and wrists and complaining of pain in his left knee, which was described as “sharp, throbbing, constant, 8-9 in scale.” (Compl. ¶ 27; Med. R. PgID 884-85; Jindal Decl. ¶ 16.) Plaintiff's Amended Complaint confirms that he did not kite healthcare between November, 2011, and April, 2012. (Compl. Index of Medical Kites, PgID 121.) Nurse Ellenwood saw Plaintiff on April 23, 2012, and scheduled him to see another nurse the next day. (Med. R. PgID 884.) Nurse Marine saw Plaintiff on April 24, 2012, and scheduled him for an immediate visit with a medical provider, Dr. Anil Prasad, whom Plaintiff saw that day. Dr. Prasad noted Plaintiff was seen as “emergent for RN referral” for “left knee pain, ” which had worsened over the last week. (Med. R. PgID 885-86; Jindal Decl. ¶ 16.) Dr. Prasad examined Plaintiff's left knee which was tender and increased Plaintiff's Naprosyn dosage, prescribed Tylenol and ace wrap and ice and one week of rest. (Med. R. PgID 886; Jindal Decl. ¶ 16.) Dr. Prasad also ordered Plaintiff a left knee brace. (Med. R. PgID 888; Jindal Decl. ¶ 16.) Dr. Prasad's examination notes expressly state that Plaintiff presented with “no other complaints.” (Med. R. PgID 886; Jindal Decl. ¶ 16.)

         On May 22, 2012, Plaintiff was seen by PA Jindal regarding complaints of left knee pain and right hand pain. (Med. R. PgID 892-93; Jindal Decl. ¶ 17.) Jindal prescribed prednisone and instructed Plaintiff to continue with Naprosyn for pain and swelling. Jindal denied bottom bunk detail because Plaintiff had no indication of a fracture, joint injury, severe sprain or other conditions beyond soft tissue injury, and did not therefore meet “criteria per MSAC guidelines.” (Med. R. PgID 893; Jindal Decl. ¶ 17.)

         In September, 2012, Plaintiff again kited healthcare, complaining that he had been receiving only conservative management of his pain by PA Jindal and was being denied his constitutional rights under the Eighth Amendment. (Compl. ¶ 28, Ex. B, PgID 156.) On October 13, 2012, Plaintiff kited again and was scheduled to see a nurse on October 16, 2012. Plaintiff asked to see a doctor but was scheduled by the nurse to see PA Jindal. (Compl. ¶ 29, Ex. B, PgID 157; Med. R. PgID 897; Jindal Decl. ¶ 18.) Plaintiff saw PA Jindal on October 18, 2012, stating that the pain in his left knee was severe, that the pain is radiating to the left ankle, and aggravated by walking. (Med. R. PgID 901; Jindal Decl. ¶ 18.) Jindal diagnosed prepatellar bursitis, prescribed Naprosyn, ace wrap, warm compresses, elevation and exercise and also ordered repeat x-rays of the left knee to compare to the April, 2011 x-rays and x-rays of Plaintiff's right foot because Plaintiff noted pain in his right foot as well as his left knee. (Med. R. PgID 901-903; Jindal Decl. ¶ 18.)

         On October 23, 2012, Plaintiff had the additional x-rays of his left knee and his right foot. (Med. R. PgID 904; Jindal Decl. ¶ 19.) The views of the left knee were compared to the x-rays taken on April 21, 2011, and arthritic changes were “markedly advanced, ” at the knee joint articulating surface and the patellofemoral joint area. There was no evidence of displaced fracture or any other acute osseous abnormalities. (Id.) The view of the right foot demonstrated a moderate sized plantar calcaneal spur, mild arthritic changes in the midfoot and toes, mild soft tissue swelling and a mild valgus deformity of the big toe. (Id.) The x-rays indicated chronic degenerative changes of arthritis and gave no indication that Plaintiff suffered a fracture of his right foot. (Jindal Decl. ¶ 19.)

         Plaintiff kited healthcare again on November 4, 2012, complaining of pain in knee and foot and demanding to know the results of his x-ray. (Compl. ¶ 30, Ex. B PgID 158-60.) On November 13, 2012, Nurse Kaczmar responded that Plaintiff would be scheduled to see a medical provider to review his x-ray results. (Compl. ¶ 31, Ex. B PgID 161; Med. R. PgID 906.) Plaintiff did see PA Jindal on November 13, 2012, and discussed x-ray results and was provided materials regarding osteoarthritis, range of motion exercises, and was ordered a bottom bunk detail. (Med. R. PgID 907-09; Jindal Decl. ¶ 20.) Also on November 4, 2014, Plaintiff kited the Health Unit Manager Kopka, stating that he was suffering from a systemic injury that started with his ankle injury and now spread to his “grossly swollen” knee and alleging that PA Jindal was “disinterested” and was not performing any tests other than her visual observation. Plaintiff asserted that he was being denied urgent medical care and was demanding to see the “staff physician” in order to make a proper diagnosis.” (Compl. ¶ 32, Ex. B PgID 159-160.) HUM Kopka responded on November 15, 2012, stating that there have been several visits with the medical provider, the most recent being on November 13, 2012, at which the medical provider discussed the results of Plaintiff's x-rays. HUM Kopka instructed Plaintiff to continue to kite if symptoms did not improve. (Compl. ¶ 33, Ex. B PgID 162; Jindal Decl. ¶ 22.)

         Plaintiff did not kite again until April 5, 2013, when he “asked to see a board certified medical doctor, ” and “NOT” PA Jindal, because his legs were swollen and he could barely walk and his pain medications were no longer working. Plaintiff's Amended Complaint confirms that he did not kite healthcare between November, 2012 and April, 2013. (Compl. Index of Medical Kites PgID 121.) On April 7, 2013, and April 22, 2013, Nurse Velarde responded that he would be scheduled to be evaluated by a nurse for referral to a medical provider, PA Jindal, who would be the one to make a referral beyond that. (Compl. ¶ 34, Ex. B PgID 163; Med. R. PgID 912, 917.) On April 24, 2013, Plaintiff saw Nurse Ellenwood who encouraged Plaintiff to use warm compresses and scheduled an appointment for Plaintiff to see PA Jindal on April 26, 2013. (Med. R. PgID 918.) Plaintiff did see PA Jindal on April 26, 2013, who diagnosed the same condition of osteoarthritis and prescribed a knee brace to help with instability and swelling. PA Jindal explained to Plaintiff that he could not demand to see a particular doctor or specialist and that she, as a midlevel provider, is trained to refer patients as necessary. (Med. R. PgID 920-22; Jindal Decl. ¶ 23.) PA Jindal prescribed the brace, noting that the arthritic changes were markedly advanced, that there was a loss of joint space, that patient was in severe pain that was not improved with anti-inflammatories and that patient wanted surgery. (Med. R. PgID 922.) But Dr. Haresh Pandya, MD denied the request for a knee brace on April 29, 2013, noting that braces do not help Plaintiff's condition and that knee range of motion and rehabilitation exercises, along with self massage, offered the best treatment. (Med. R. PgID 923.)

         On June 6, 2013, Plaintiff kited healthcare again requesting to see a doctor and stating that he was in “GREAT PAIN, ” and that his left knee was swollen and his right ankle was “turning over.” (Compl. ¶ 37, Ex. B PgID 167.) On June 7, 2013, Nurse Velarde responded that Plaintiff was scheduled to have his symptoms assessed by the nurse and on June 7, 2013, Plaintiff was “called out without an appointment” to see Dr. Anil Prasad. (Compl. ¶ 38; Med. R. PgID 933-34.) Dr. Prasad advised to take Naprosyn and added Tylenol and gave an ace wrap to use as directed and to kite if symptoms got worse and provided a detail for a cane. (Id.; Jindal Decl. ¶ 24; Med. R. PgID 935.)

         On July 11, 2013, Plaintiff was seen again by PA Jindal complaining of worsening knee pain. PA Jindal discontinued Naprosyn, started ibuprofen and ordered intra-articular Kenalog injections for Plaintiff's knee to begin in two weeks and ordered a bottom bunk detail, a cane, and support hose. (Med. R. PgID 946-49; Jindal Decl. ¶ 27.) On July 28, 2013, Plaintiff kited again asking to see a “board certified medical doctor and a knee specialist, ” requesting an MRI of his foot, claiming negative effects from a medication change and complaining that he had waited two weeks for medical treatment ordered for his knee (the Kenalog injections) that was canceled. (Compl. Ex. B PgID 170; Med. R. PgID 950.) Plaintiff kited again on August 9, 2013, complaining that he had been waiting over four weeks for his knee injections which had been repeatedly canceled. (Med. R. PgID 951; Compl. ¶ 42, Ex. C PgID 323.) The kite response to Plaintiff's August 9, 2013 kite explained that there was only one provider available and appointments had to be canceled and rescheduled to take care of “emergent issues.” (Med. R. PgID 951; Compl. Ex. B PgID 172; Jindal Decl. ¶ 28.) Plaintiff kited again on August 23, 2013, complaining that his kites were being ignored, that he has never been scheduled for the knee injections that Jindal ordered on July 11, 2013, and again asking to see a board certified doctor. (Compl. Ex. B PgID 174.) Nurse Velarde responded that a request to see a board certified doctor cannot be answered by sending a kite and explaining that a medical provider (PA Jindal) will refer to another provider if she deems it medically necessary. (Compl. Ex. B PgID 175.)

         On September 30, 2013, Plaintiff saw Dr. Darrell Brady, who ordered repeat x-rays of Plaintiff's left knee and right foot. Plaintiff explained to Dr. Brady that he had injured his foot in a basketball game two years ago and believes that by shifting his weight onto his left leg to avoid the pain in his right foot, he developed left knee pain that has progressed to the point where he has begun to walk on the toes of his left foot. Dr. Brady noted that prior x-rays of Plaintiff's right foot and left knee reported only arthritic changes. Dr. Brady performed several clinical diagnostic tests on Plaintiff and found the left knee warm with some swelling and limited range of motion and found the right foot without any deformity or obvious soft tissue swelling and no specific point of tenderness. Dr. Brady suspected Plaintiff may have a loose body in his knee and ordered updated foot and knee x-rays in view of the progression of symptoms and held off on the steroid injections pending the results of the x-rays. (Med. R. PgID 957- 60; ECF No. 79-3, March 15, 2016 Declaration of Darrell Brady ¶ 23.) Dr. Brady's examination of Plaintiff's right foot ruled out a fracture and found Plaintiff's complaints about his foot consistent with the diagnosis of arthritis. (Brady Decl. ¶ 23.) Plaintiff thought that the purpose of the appointment with Dr. Brady was to receive the steroid injections he had missed (Compl. ¶ 43) but Dr. Brady determined to wait on any aspiration of Plaintiff's knee or steroid injections for the results of the x-rays. (Brady Decl. ¶ 23.)

         Plaintiff did have x-rays on October 8, 2013, which showed “moderate and advanced arthritic changes” in Plaintiff's knee and arthritic changes in Plaintiff's mid-foot joint, the suggestion of old healed trauma of the first metatarsal bone (forefoot), and a plantar calcaneal spur. (Med. R. PgID 963; Brady Decl. ¶ 24.) Plaintiff states that Dr. Brady told him that his foot had been broken in the past, but Dr. Brady explained that he did not reach or express that conclusion and that the word “trauma” as used in the x-ray report includes any injury to the bone and, in any event, there was no indication of a fracture that healed incorrectly. (Brady Decl. ¶ 25.) Dr. Brady opined that even if Plaintiff had suffered a foot fracture, there was no indication that Plaintiff's foot required any additional treatment beyond what had been pursued prior to Dr. Brady's examination in September/October, 2013. (Brady Decl. ¶ 26.)

         Dr. Brady saw Plaintiff again for follow up on October 14, 2013, diagnosed Plaintiff with chronic, progressive arthralgia of the left knee and explained that the steroid injections had been deferred due to suspicion of a loose body, which was not present on x-ray. (Med. R. PgID 965-66; Brady Decl. ¶ 27.) Dr. Brady noted that he would still consider a steroid injection but thought they would be of questionable benefit. (Brady Decl. ¶ 28.) Dr. Brady changed Plaintiff's NSAID to Mobic, a different anti-inflammatory effective for arthritis. Dr. Brady also noted he would consider referral to an orthopedic surgeon before proceeding with steroid injections and also opined that had Plaintiff received the steroid injections when they were ordered by PA Jindal, it would not have halted the deterioration in his left knee or improved his condition. (Med. R. Pg ID 966; Brady Decl. ¶¶ 27, 28.)

         On October 24, 2013, Plaintiff saw Dr. Bahmini Sudhir, MD. (Med. R. PgID 972-975; Brady Decl. ¶ 29.) Dr. Sudhir noted that Plaintiff walked into the exam in apparent pain, had to walk on the toes of his left foot because of the inability to straighten his left leg, and that removing clothing seemed a chore. Dr. Sudhir noted that Plaintiff had a bony enlargement on his right foot due to Osteoarthritis with restricted range of motion in all directions. Dr. Sudhir noted severe Osteoarthritic changes in Plaintiff's left knee, with deformity and limited range of motion. Dr. Sudhir ordered a wheelchair for Plaintiff for long distances, a geriatric pusher and an elevator pass. Dr. Sudhir ordered Plaintiff to continue with the Mobic and planned to send in an orthopedic consult. (Id.) Dr. Sudhir did not note the presence of an unhealed fracture in Plaintiff's foot and did not order steroid injections.

         On November 6, 2013, Plaintiff kited healthcare complaining that he was seen on October 14, 2013, and steroid injections were ordered. (Med. R. PgID 980.) Nurse Paratchek checked the records and appropriately responded that steroid injections were being considered but had not been ordered. (Id.) On November 12, 2013, Plaintiff was instructed to kite for his medications about one week before they run out so that he is not without his meds while waiting for them to be delivered. (Med. R. PgID 981.) On November 13, 2013, Plaintiff saw the orthopedic surgeon, Dr. Ikram, who ordered repeat x-rays of his left knee which demonstrated advanced arthritic changes and mild soft tissue swelling in the prepatellar and suprapatellar region medially of the knee. Dr. Ikram diagnosed Plaintiff with severe Degenerative Joint Disease of left knee and recommended that he be started on Indocin. Dr. Ikram states that Plaintiff is a candidate for a total knee replacement. Dr. Ikram questioned whether the advanced degenerative changes were due to just wear and tear or whether Plaintiff's prior drug use may have contributed to the advanced arthritic conditions. (Med. R. PgID 982-984; Brady Decl. ¶ 30.) Plaintiff continued to kite through November asking when his surgery would be happening. He was told that his new medications had been ordered and that the medical provider had submitted the request for approval for knee replacement and was awaiting a response. (Med. R. PgID 989-1002; Brady Decl. ¶ 31.) Plaintiff received his Indocin sometime in mid-November as he complains on December 3, 2013 that he has been taking it for two weeks and it makes him nauseous and Plaintiff self-discontinued the Indocin. (Med. R. PgID 1004-10.) The request for the surgery was approved on December 9, 2013. (Med. R. PgID 1008-09; Brady Decl. ¶ 31.) Plaintiff was seen by PA Jindal on December 20, 2013, and informed that both the surgery and pre-op consultation had been approved. (Med. R. PgID 1019-20; Jindal Decl. ¶¶ 32-34.) Plaintiff was using a wheelchair for long-distances only and still complained of foot and ankle pain. (Id.) Plaintiff continued to receive medications and attend appointments related to preparation for surgery in February and March. (Med. R. PgID 1010-1047.) On March 31, 2014, Plaintiff saw Dr. Brady for a history and physical examination in preparation for his upcoming knee replacement surgery. (Med. R. PgID 1048-50; Brady Decl. ¶ 32.) Dr. Brady discontinued the Indocin and resumed Mobic due to Plaintiff's complaints of side effects of the Indocin. Dr. Brady instructed Plaintiff to follow up in one month after his surgery and prescribed post-operative medications. (Med. R. PgID 1050-52; Brady Decl. ¶ 32.) On April 1, 2014, Plaintiff was ordered several pre-op medications (Med. R. PgID 1054-55.)

         Plaintiff underwent total knee replacement with Dr. Cochran on April 17, 2015 and was admitted to the Duane L. Waters Health Center after surgery for inpatient care and physical therapy. (Med. R. PgID 1073-74; Brady Decl. ¶ 33.) Physician's Assistant Danielle Alford performed Plaintiff's intake history and physical on his admission to Duane Waters for his post-operative care. PA Alford states that Plaintiff has a past medical history of degenerative joint disease that necessitated left total knee replacement on April 17, 2014. Plaintiff gives a history of having injured his right foot about three years ago and subsequently having his left knee become inflamed and painful. (Med. R. PgID 1075; Brady Decl. ¶ 33.) Plaintiff described pain to his left knee 8/10, and mild chronic paid to right foot and elbow. Plaintiff was ambulating within his room post-op to the toilet. (Med. R. PgID 1075; Brady Decl. ¶ 33.) Plaintiff's incision was checked and his right foot was tender to palpation of the dorsum but showed no edema and had normal range of motion. (Med. R. PgID 1076; Brady Decl. ¶ 34.) His strength was 5/5 in his upper extremities and his right lower extremity and 4/5 in his left lower extremity. (Med. R. PgID 1076.) Plaintiff was scheduled to begin physical therapy on April 20, 2014, and to use a walker for ambulation for two weeks. Plaintiff was scheduled for a follow up appointment with Dr. Cochran, his surgeon, in three weeks. (Med. R. PgID 1076.) With respect to Plaintiff's right foot and elbow arthritis, Plaintiff's past x-rays would be reviewed and he would be placed back on Mobic once off his post-off pain narcotics. (Med. R. PgID 1076.) Plaintiff's mobic was discontinued and he was started on a number of post-op pain medications, including Tramadol, Norco, and Aspirin, (Med. R. PgID 1079.) Plaintiff continued to be seen daily at Duane Waters, continued to complain of pain in his left knee, was treated for hospital acquired pneumonia six days post-op, began physical therapy on April 25, 2014, often complained of pain in his right elbow and foot “just like arthritis in other joints, ” (Med. R. PgID 1165) and demanded to be seen by doctors and not Physician Assistants. (Med. R. PgID 1080-1170.) On April 26, 2014, Plaintiff was seen Dr. Lynn Larson who stated that Plaintiff's right foot pain was likely a flare up due to being off of Mobic and she prescribed moist heat to relieve the pain. (Med. R. PgID 1166; Brady Decl. ¶ 36.) Plaintiff required frequent breaks during physical therapy due to “pain and fatigue.” (Med. R. PgID 1169.) On May 2, 2014, Plaintiff was ambulating with a single point cane and stated to his therapist that he did not need his walker anymore. (Med. R. PgID 1188.) Plaintiff reported that his right side was flaring up less after his surgery and, when instructed on proper use of his cane, reported that he “wasn't using the cane near anything like this before surgery.” (Med. R. PgID 1188.) On May 6, 2014, Plaintiff was “complaining more of right foot pain than knee pain, ” and his progress in PT was limited by his complaints of flare ups in his right knee and foot. (Med. R. PgID 1195-1202.) During one therapy session Plaintiff refused to perform certain standing exercises, stating that “last time I did that, I sprained my ankle and went in the wheelchair for three years.” (Med. R. PgID 1202.) PT stated that it was unable to progress with Plaintiff due to his declining to participate in the exercises. Plaintiff demanded to see the PA. (Med. R. PgID 1202; Brady Decl. ¶ 37.) At this same PT session, it was noted that Plaintiff had functionally met all set PT goals, was able to ambulate with a single point cane and was “safe for DC back to GP.” (Med. R. PgID 1203.)

         PA Alford ordered x-rays of Plaintiff right foot on May 20, 2014, and again the x-rays showed no evidence of a fracture or any acute osseous abnormality and showed mild chronic degenerative changes. (Compl. Ex. A, PgID 132; Med. R. PgID 1205; Brady Decl. ¶ 38.) Plaintiff was discharged from Duane Waters on May 20, 2014. (Med. R. PgID 1206.) In the discharge summary, PA Alford noted that “by the date of discharge, he no longer complained of pain to his left knee and was complaining exclusively about his right foot, requesting x-rays and increased pain medication.” (Med. R. PgID 1206.) PA Alford noted that an x-ray was performed on the right foot and showed mild chronic changes, generalized osteopenia, and no acute abnormalities, which was “consistent with his previous x-rays in chronic nature, ” and also noted that physical therapy addressed his chronic foot pain and concluded “no increase in pain medications were warranted.” (Med. R. PgID 1206; Brady Decl. ¶ 38.) PA Alford diagnosed Plaintiff's complaints of right foot pain as an “exacerbation of arthritis” similar to what Plaintiff suffered in October 2013, (Med. R. PgID 1212.) Plaintiff was to restart his mobic and to taper off of his narcotic pain medications. (Med. R. PgID 1208.) PA Alford noted that Plaintiff had a follow up appointment with Dr. Cochran, his surgeon, on May 15, 2014, who stated that his knee was healing well and he should follow up in one year. (Med. R. PgID 1206.) Plaintiff was ambulating with a single point cane and a walker at the time of his May 21, 2014 discharge. PA Alford noted that she had discussed Plaintiff's complaints of foot pain with him multiple times and that Plaintiff refused to wear shoes and insisted on wearing only shower shoes with socks, including at PT. (Med. R. PgID 1211.)

         On May 21, 2014, back at ARF, Plaintiff kited health care asking to see a doctor for his knee and foot pain and was seen by PA Jindal. Although Plaintiff's therapist at Duane Waters noted that Plaintiff was ambulating with a single point cane on discharge, Plaintiff presented in a wheelchair when seen by PA Jindal the next day. (Compl. ¶ 51; Med. R. PgID 1221-23; Jindal Decl. ¶ 39.) PA Jindal warned Plaintiff of the risks of failure to ambulate after knee replacement surgery. She agreed to review the x-rays of Plaintiff's right foot that were taken on May 20, 2014 and discontinued Plaintiff's wheelchair, encouraging him to ambulate with his cane. Plaintiff was instructed to try ambulating with his self-purchased tennis shoes and was given a bottom bunk detail and a prescription for support hose. (Compl. ¶¶ 50-52; Med. R. PgID 1222, 1225.)

         On May 28, 2014, Plaintiff was seen by Dr. Minnie Martin, MD, for an evaluation of his right foot pain. (Compl. ¶ 52; Med. R. PgID 1233-34; Brady Decl. ¶ 39.) Dr. Martin examined Plaintiff's right foot and noted that the pain extended from the right great toe laterally to the right posterior ankle. (Med. R. PgID 1233.) Dr. Martin noted the Mobic prescription and did not order further assessment or treatment of Plaintiff's right foot. (Id.) On May 28, 2014, Plaintiff kited health care complaining that he did not get a chance to ask Dr. Martin all of his questions. (Compl. Ex. B PgID 195; Med. R. PgID 1235.) Nurse Velarde responded to the kite, stating that Plaintiff should present his question in a kite and the nurse would answer the question or submit the question to the medical provider if unable to give a sufficient explanation. (Compl. Ex. B PgID 196; Med. R. PgID 1235.)

         Plaintiff continued to kite health care, complaining of pain in his foot and asking why he was not given the “foot brace” that the physical therapist at Duane Waters had recommended for him and asking why his physical therapy had been discontinued after seven days. (Compl. Ex. B PgID 190-92.) The medical records from Duane Waters contain no recommendation for a “foot brace” and none appears in Plaintiff's medical order history. (Med. R. PgID 1215-1217.) The physical therapy medical records from Duane Waters do not mention a “foot brace, ” and indicate that physical therapy was stopped because no further progress could be made due to Plaintiff's declining to participate in certain exercises. (Med. R. PgID 1202.) At his May 9, 2017 therapy session at Duane Waters, Plaintiff's therapist noted that Plaintiff had functionally met all goals and was safe to return to ARF. No mention is made of the need for a “foot brace.” The goal stated for Plaintiff at his May 9, 2014 therapy session was to be “independent with progressive home exercise program within 1 week.” (Med. R. PgID 1203.) There is no indication in the record that Plaintiff was prescribed a 4-6 weeks of scheduled physical therapy sessions or that he was ordered to have a “foot brace.”

         Mr. Colen's right knee, which had been asymptomatic, also developed arthritis and now may also require surgery. (Brady Decl. ¶ 8.) The presence of arthritis bilaterally, and a multiple joint presentation, suggested rheumatoid rather than osteoarthritis, which had been the diagnosis that informed Plaintiff's treatment over the previous three years. (Brady Decl. ¶ 8.) The diagnosis of rheumatoid arthritis has now been confirmed through lab work and Mr. Colen has been approved to see a rheumatologist for further evaluation. (Brady Decl. ¶ 9.) According to Dr. Brady, rheumatoid arthritis progresses at an unpredictable rate and the disease can be managed, but not cured. (Brady Decl. ¶ 9.) According to Dr. Brady, even if Mr. Colen had fractured his right foot in 2011, this would not be the cause of Plaintiff's rheumatoid arthritis, the chronic pain in his right foot and left knee, or the deterioration of his left knee requiring joint replacement surgery. (Brady Decl. ¶¶ 10, 40.) Only after Plaintiff presented with extensive acute onset arthritis in his right knee did the medical providers suspect rheumatoid arthritis. (Brady Decl. ¶ 40.)

         Dr. Brady states that the x-rays taken of Plaintiff's right foot rule out the claim that the medical providers misdiagnosed Plaintiff's November, 2010 injury as a sprain. (Brady Decl. ¶ 41.) Whatever “healed trauma” was noted in Plaintiff's 2013 x-ray healed correctly and the course of treatment provided by PA Jindal was appropriate even if Plaintiff had suffered a minor fracture. (Brady Decl. ¶ 41.) Dr. Brady opines that the medical providers' diagnosis of osteoarthritis and course of treatment were appropriate under the applicable standard of care. The medical providers placed Plaintiff on the appropriate course of treatment for arthritis, followed through on all necessary treatment and specialty consults, and obtained a total knee replacement, which met or exceeded the applicable standard of care. (Brady Decl. ¶¶ 41, 43.)

         In sum, Plaintiff was seen, by Physicians Assistants and medical doctors, including specialists in orthopaedics, nearly 30 times over the course of three years for his complaints of persistent pain - principally in his right foot and left knee although other joints also were painful at times. Diagnostic tests were ordered, x-rays were taken which demonstrated arthritis but ruled out any fractures, x-rays were repeated demonstrating advancing arthritic changes and undifferentiated “trauma” that had healed, different courses of treatment were attempted, different pain medications and anti-inflammatories were tried, and ultimately Plaintiff underwent a total knee replacement. Ultimately, Plaintiff was diagnosed with rheumatoid arthritis, and has been referred for treatment by a specialist in that discipline.

         Plaintiff theorizes that his rheumatoid arthritis was caused by the original injury to his foot and by the Defendants failure to properly diagnose and treat his condition. But other than his lay opinion, Plaintiff offers no evidence to substantiate this claim, which is rejected by the only medical evidence in the record.

         At its heart, Plaintiff's case, though we cannot doubt his claims of physical discomfort, is one questioning the correctness of the admittedly continuous clinical and diagnostic techniques and courses of treatment that he received for his complaints. In the end, he has not presented facts that state an actionable claim of deliberate indifference against any of these Defendants.

         II. STANDARD OF REVIEW

         A district court judge reviews de novo the portions of the report and recommendation to which objections have been filed. 28 U .S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). A district “court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. Objections must be timely to be considered. A party who receives notice of the need to timely object yet fails to do so is deemed to waive review of the district court's order adopting the magistrate judge's recommendations. Mattox v. City of Forest Park, 183 F.3d 515, 519-20 (6th Cir. 1999). “[A] party must file timely objections with the district court to avoid waiving appellate review.” Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987) (emphasis in original).

         Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those portions of the magistrate's report that the district court must specially consider.” Id. (internal quotation marks and citation omitted). A general objection, or one that merely restates the arguments previously presented, does not sufficiently identify alleged errors on the part of the magistrate judge. An “objection” that does nothing more than disagree with a magistrate judge's determination, “without explaining the source of the error, ” is not considered a valid objection. Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Specific objections enable the Court to focus on the particular issues in contention. Howard, 932 F.2d at 509. Without specific objections, “[t]he functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrate's Act.” Id. “[O]bjections disput[ing] the correctness of the magistrate's recommendation but fail[ing] to specify the findings [the objector] believed were in error” are too summary in nature. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (alterations added).

         III. ANALYSIS

         A. Plaintiff's Objections to the Magistrate Judge's January 18, 2017 Report and Recommendation to Grant Defendants Corizon Health, Inc., Alford, Brady Jindal, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.