Heath v. Horan, 5:17-cv-209-DPM-JTK. (2019)
Court: District Court, E.D. Arkansas
Number: infdco20190306a55
Visitors: 13
Filed: Mar. 05, 2019
Latest Update: Mar. 05, 2019
Summary: ORDER D.P. MARSHALL, JR. , District Judge . On de novo review, the Court adopts Magistrate Judge Kearney's supplemented recommendation, N o 43 & N o 56, and overrules the parties' objections, N o 44-45 & 59. FED. R. CIV. P. 72(b)(3). A timeline laying out what happened when is illuminating. • 30 August 2015 Heath hurt his foot at work. • 28 March 2016 Heath underwent surgery, and a screw was placed in his foot. • 5 October 2016 An x-ray of Heath's foot showed th
Summary: ORDER D.P. MARSHALL, JR. , District Judge . On de novo review, the Court adopts Magistrate Judge Kearney's supplemented recommendation, N o 43 & N o 56, and overrules the parties' objections, N o 44-45 & 59. FED. R. CIV. P. 72(b)(3). A timeline laying out what happened when is illuminating. • 30 August 2015 Heath hurt his foot at work. • 28 March 2016 Heath underwent surgery, and a screw was placed in his foot. • 5 October 2016 An x-ray of Heath's foot showed tha..
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ORDER
D.P. MARSHALL, JR., District Judge.
On de novo review, the Court adopts Magistrate Judge Kearney's supplemented recommendation, No 43 & No 56, and overrules the parties' objections, No 44-45 & 59. FED. R. CIV. P. 72(b)(3). A timeline laying out what happened when is illuminating.
• 30 August 2015 Heath hurt his foot at work.
• 28 March 2016 Heath underwent surgery, and a screw was placed in his foot.
• 5 October 2016 An x-ray of Heath's foot showed that the screw was broken. Later that month, an outside orthopedic consultation was approved and scheduled for late December.
• 6 December 2016 Heath saw Dr. Horan for the first time for foot pain. Heath told him about the broken screw, and Dr. Horan saw an "obvious foreign body pressing out" from Heath's foot. Dr. Horan noted the pending orthopedic appointment.
• 27 December 2016 A scheduled x-ray procedure was canceled.
• 29 December 2016 Heath's orthopedic appointment was canceled and rescheduled for March.
• 3 January 2017 Dr. Horan saw Heath for foot pain and "suspected movement of hardware[.]" Dr. Horan noted the pending orthopedic appointment.
• 17 February 2017 Another scheduled x-ray procedure was canceled.
• 20 February 2017 Dr. Horan saw Heath again for foot pain. Dr. Horan noted the pending orthopedic appointment.
• 14 March 2017 Dr. Horan saw Heath again for foot pain "with obvious head of screw protruding subcutaneous." Dr. Horan noted the pending orthopedic appointment.
• 17 March 2017 Heath's orthopedic appointment was again canceled.
• 29 March 2017 Dr. Horan saw Heath again for foot pain. He saw that the "screw [was] protruding laterally." Dr. Horan completed a new consult request. He noted that the consult was "non emergent in nature and [could] exceed the time x 60 day if needed."
• 7 August 2017 Heath underwent surgery again.
Based on this timeline, a jury could reasonably conclude that Horan was deliberately indifferent to Heath's serious medical needs by failing to inquire about the repeatedly canceled appointments or by failing to request a more timely consultation. Further, the Court agrees with Magistrate Judge Kearney that this is not the type of case where verifying medical evidence about harm from the delay is required. Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999). The need to promptly fix a broken screw visible beneath the skin of a person's foot is obvious to a layperson. Cf, Haase v. Starnes, 323 Ark. 263,268-69, 915 S.W.2d 675, 677-78 (1996).
Motion for summary judgment, No 31, partly granted and partly denied. Heath's claims against Griswold are dismissed with prejudice. He may proceed with his deliberate indifference claim against Dr. Horan.
So Ordered.
Source: Leagle
