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Watson v. Jamsen

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

September 24, 2019

DERRYL WATSON, Plaintiff,
v.
CHARLES JAMSEN, ET AL., Defendants.

          OPINION AND ORDER (1) SUSTAINING PLAINTIFF’S OBJECTION [ECF NO. 95]; (2) REJECTING MAGISTRATE JUDGE’S AUGUST 9, 2019 REPORT AND RECOMMENDATION [ECF NO. 92]; AND (3) DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 79]

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         This is a prisoner civil rights action brought by Plaintiff Derryl Watson, a Michigan Department of Corrections’ (“MDOC”) inmate, against Defendants Dr. Charles Jamsen and Physician Assistant Mary Boayue, who provided medical care to Plaintiff following reconstructive surgery to fix deformities in his left foot. Upon discharge, Plaintiff’s surgeon detailed an eight-part treatment plan for Plaintiff’s surgical wounds-a plan the record shows was not followed. Plaintiff alleges deliberate indifference to his serious medical needs in violation of the Eighth Amendment under 42 U.S.C. § 1983. (Compl., ECF No. 1.) Defendants argue that their actions and inactions show no more than negligence, which does not meet the more demanding standard of deliberate indifference.

         The matter has been assigned to Magistrate Judge R. Steven Whalen for all pretrial proceedings, including a hearing and determination of all non-dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(A) and/or a report and recommendation (R&R) on all dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(B). Before the Court is an R&R filed by Judge Whalen, which recommends that Defendants’ motion for summary judgment be granted. (ECF Nos. 79, 92.) Plaintiff filed an objection to the R&R on September 11, 2019. (ECF No. 95.) Defendants responded to the objection on September 23, 2019. (ECF No. 96.)

         For the reasons stated below, the Court (i) sustains Plaintiff’s objection; (ii) rejects the R&R; and (iii) denies Defendants’ motion for summary judgment.

         BACKGROUND

         On March 10, 2016, the MDOC transferred Plaintiff to G. Robert Cotton Correctional Facility (“JCF”) to see a podiatrist in Jackson County. (Defs.’ Mot., ECF No. 79 at Pg. ID 538.) On March 18, MDOC transported Plaintiff to Duane Waters Hospital, where Plaintiff and Dr. Matthew Page, the podiatrist, agreed that Plaintiff would undergo surgery to fix his deformed foot. (Id. at 538-39.) In the “Plan” section of a “Consultation Note, ” Dr. Page wrote, among other things, that Plaintiff will use “crutches for approximately two weeks, ” “a boot . . . for an additional four weeks, ” and “[a]dvised two months for fairly complete recovery.” (Defs.’ Mot., Ex. C, ECF No. 80 at Pg. ID 586.) Defendant Boayue electronically signed this Consultation Note on the same day. (Id.)

         On April 19, Dr. Page performed reconstructive foot surgery on Plaintiff and bandaged Plaintiff’s wounds. (Defs.’ Mot., ECF No. 79 at Pg. ID 539). In an “Authorization Letter” drafted at 2:27 PM on that day, Dr. Page outlined a treatment plan that included (i) JCF “[changing] dressing in 3 days”; (ii) “Norco, ” a type of pain medication; (iii) crutches; (iv) a boot; (v) “keep[ing] [the wounds] dry [in] shower[s]”; (vi) “ice detail”; (vii) “extra pillows”; and (viii) “2 week[s] for suture removal.” (Defs.’ Mot., Ex. C, ECF No. 80 at Pg. ID 614.) In “Discharge Instructions” drafted three minutes later, at 2:30 PM, Dr. Page repeated much of the same instruction included in the Authorization Letter but also checked boxes labeled “[d]o not remove outer dressing until follow-up appointment” and “[c]all the office to schedule or confirm your follow-up appointment date and time.” (Id. at 604.)

         The Discharge Instructions also listed information about when surgery patients should call their doctor, including if (i) “you have bright red bleeding or develop bleeding that concerns you”; (ii) “you develop signs of infection, ” such as “[r]edness and or warmth on your incision” or “[s]welling at the incision site”; or (iii) “your pain is not relieved or controlled.” (Id. at 605.)

         Upon Plaintiff’s return to JCF later that day, Defendant Boayue updated Plaintiff’s chart, noting in the “Additional Comments” section under “History of Present Illness” four out of eight of Dr. Page’s instructions, including Norco, an ice detail, crutches, and a pillow. (Id. at 610-11.)

         At that time, Defendant Boayue ordered the pain medication and the request was approved the same day. (Id. at 612-13.) However, Plaintiff’s medical records do not show that Defendant Boayue ordered an ice detail, crutches, pillows, or any other item included in Dr. Page’s April 19 Authorization Letter.[1]

         On the next day, April 20, Defendant Jamsen-a doctor and medical provider (“MP”) for JCF inmates-signed, dated, and timestamped the “Reviewed By” section of Dr. Page’s Authorization Letter. (Id. at 614.) Defendant Jamsen requested a “[p]odiatry surgery follow up, ” noting that “Dr. Page requests 2 week f/u for suture removal.” (Id. at 615.) Though the request was approved on April 22, (Id. at 617-18), Plaintiff’s medical records do not show that any JCF medical personnel in fact scheduled a follow-up appointment at or around this time.

         During the three weeks that followed, Plaintiff sought help from medical personnel numerous times:

April 25: Plaintiff sent a kite to JCF medical personnel. The kite stated that Plaintiff needed (i) “[his] ice detail extended”; (ii) [his] “extra pillow extended”; (iii) the “MP [to] check pins and rods in [his] foot”; and (iv) “to see [his] MP before [his] next schedule[d] Podiatry appointment.” (Id. at 620.) In response, the medical personnel noted that Plaintiffs request was “[s]ent to MP to review” and a “[c]hart [r]eview/[u]pdate” was scheduled for “approx 04/29/2016 with Physician ” (Id.)
May 1: In a “Grievance Form” based on the conduct of Defendant Jamsen and all “unavailable” medical staff, Plaintiff stated that (i) he has not yet been seen by an MP, in violation of MDOC policy which Plaintiff said “states that a prisoner who’s been seen or treated off-site for procedures or treatment SHALL be seen by the institution’s Medical Provider upon the prisoner’s return”; (ii) to date, no one had checked or changed his dressings, or checked his foot “for possible infection (a major concern after surgery), ” even though he “was told by the off-site surgeon [that it] needed to be done”; and (iii) his “medical details didn’t cover a satisfactory recovery or rehabilitation plan.” (Pl.’s Resp., ECF No. 83 at Pg. ID 1150.) Plaintiff also recounted the events of April 25 and further stated that, on April 29, he again asked to see an MP and to have his medical details extended-but to no avail. (Id.)[2] “This refusal to examine or see me or even do a competent chart review, ” Plaintiff wrote, “has allowed all my medical details to expire and run out and still not address my serious medical needs.” (Id.)
May 2: Plaintiff sent a kite to JCF medical personnel, requesting a pain medication refill. Though the “Kite Response” states “Comment: Meds ordered, ” (Defs.’ Mot., Ex. C, ECF No. 80 at Pg. ID 622), Plaintiffs medical records do not show that any pain medication was ordered that day-but, when JCF medical personnel ordered pain medication at other times, such orders were reflected in Plaintiffs medical records. (See e.g., Id. at 619, 645.)
May 3: In a second Grievance Form based on the conduct of Defendants Jamsen and Boayue, among others, Plaintiff stated that earlier that day, after reporting “extreme pain” to his unit officer, he was wheeled over to the JCF HealthCare unit, where he waited for two hours before Defendant Boayue saw him. (Pl.’s Resp., ECF No. 83 at Pg. ID 1158.) Plaintiff contends that, after complaining of extreme pain and bleeding, Defendant Boayue offered him Motrin and refused to change his dressings or check his surgical wounds. (Id.)
May 5: Plaintiff told JCF medical personnel that “[he] bled through the dressings and it stinks, ” “[his] foot hurts really bad, ” and he’s “[b]een out of pain meds for 4 or 5 days now.” (Defs.’ Mot., Ex. C, ECF No. 80 at Pg. ID 623.) In response, the medical personnel noted in a “Nurse Protocol” note that she examined Plaintiffs foot, which revealed “[t]enderness, ” “[p]ain with movement, ” and “[w]eakness.” (Id.) The medical personnel further noted that Plaintiff “[s]till had dressing from surgery on 4-19-16 [and] [f]oot quite odiferous, ” as well as “[r]eferred to provider (Charles S. Jamsen MD)” and “[p]hysician contacted for same day treatment and orders.” (Id. at 623-24.) The medical personnel also noted in a “Clinical Progress Note” that she “[s]poke with MP2[3] about the soiled dressing, odor and pain in foot [and] ¶ 2 read post op instructions. Stated inmate should not have dressing changed until F/U appointment with surgeon. . . . Informed inmate of MP2’s decisions. Inmate very unhappy.” (Id. at 625.) The medical personnel gave Plaintiff Tylenol and Naprosyn, contacted an off-site coordinator regarding Plaintiff’s follow-up appointment with Dr. Page, and noted that Plaintiff “has a follow up appointment with Dr. Page very soon.” (Id.) The appointment was set for the following day, May 6. (Defs.’ Mot., ECF No. 79-1 at Pg. ID 562.)

         On May 6, MDOC transported Plaintiff to Dr. Page’s office. (Defs.’ Mot., ECF No. 79 at Pg. ID 540.) Dr. Page’s Consultation Note reads in relevant part:

Identifying Data: “[Plaintiff] states that upon discharge . . . he checked in with the nurse in health care. He was advised that he would see the physician at his facility the following day. He states that he has not seen any care provider since his surgery and he has not had his bandages changed on his foot since his surgery. He states he did receive Norco for pain, however that prescription ran out this past Sunday. His current pain level is 5/10 . . . . [and] the details for his ice and extra pillow have expired. He notes some odor coming from the bandages on his left foot. He states the bandage is blood-soiled, [and] there is pain . . . .”
Physical Examination: “Upon removing [boot on the left foot], there is a blood-soiled, well-adhered bandage to his toes and foot. This is the surgical bandage that was placed on in the OR at the time of surgery. Upon removing this, there is significant adherence to the [] toes and [] incisions. Upon removing all of the bandages, there is superficial dehiscence of the bunion incision along the entire length. . . . There is postoperative edema throughout the whole foot []. The pins in the . . . toes . . . are dry and intact distally. The . . . left third toe has an ulcerative area and skin breakdown from the soiled bandages. This is the size of a dime extending into the dermal level.”
Plan: “Bandages were removed today. Photographs of the bandages along with his foot and areas of concern were obtained along with the review of the medical record which did show specific postoperative orders for his bandage to be changed three days following his surgical procedure. . . . Aquacel AG was applied to the ulcerative area . . . as well as the bunion incision. . . . Specific orders were written today for extra pillow for elevation, ice detail, pain management with tramadol . . . for two weeks. I also prescribed Cipro . . . and clindamycin . . . since the wounds have dehisced and now there is an ulcer. Thankfully I believe this will heal with good wound care. . . . There was some backing out of the pin in . . . toe from about 1 cm.”

(Defs.’ Mot., Ex. C, ECF No. 80 at Pg. ID 627-28.) Dr. Page also drafted an additional Authorization Letter on May 6, which stated “POSTOP 4-19-16 . . . see dictation and orders.” (Id. at 626.)

         When Plaintiff returned from his visit with Dr. Page on that day, he met with JCF medical personnel, complaining of “9/10” pain. (Id. at 630.) The medical personnel noted in a “Consultation” document that Plaintiff was seen by Dr. Page “when his dressing was noted to be blood-soiled, and adhered to the incisions” and there was “dehiscence and “ulceration” where “the original surgical dressing was removed today.” (Id. at 631.) The document further noted that Plaintiff’s “[p]resumed [d]iagnosis” was “wound, open, foot w/cmpl, ” that another “F/U visit” “to recheck the wounds” ...


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