ROBERT L. MILLER, Jr., District Judge.
Donnell Robertson, a pro se prisoner, is proceeding against Dr. Jackson and Dr. Liaw for compensatory and punitive damages for denying him medical treatment for his ears and back while he was housed at the Westville Correctional Facility. He was also proceeding on a claim for injunctive relief for the same conditions, but his transfer to the Miami Correctional Facility last year made his injunctive relief claim moot. See
The defendants seek summary judgment because Mr. Robertson can't demonstrate that they were deliberately indifferent. Mr. Robertson argues that the defendants were deliberately indifferent to his serious medical needs and that they shouldn't have accessed his medical records as a part of this lawsuit.
Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Federal Rule of Civil Procedure 56(a). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Mr. Robertson objects to the defendants' submission of his medical records. He filed a motion asking the court to dismiss the summary judgment motion because his records were obtained in violation of Indiana Department of Correction policies and without his consent. "[T]he exclusionary rule is not a proper remedy for a violation of agency regulations,"
Mr. Robertson doesn't dispute the accuracy of his medical records (DE 27-2) or any of the declarations made by either Dr. Liaw (DE 27-1) or Dr. Jackson (DE 27-3). For summary judgment purposes, then, the court accepts them in their entirety as undisputed facts. Dr. Jackson declared that "although I do not recall specifically examining the patient, I may have responded to calls from nursing staff regarding his frequent Urgent Care visits." DE 27-3 at 2. The medical records contain nothing to indicate that Mr. Robertson was ever a patient of Dr. Jackson. Neither is there any record of Dr. Jackson having consulted with a nurse about his medical condition or having made any treatment decisions related to him.
Though the court has accepted as undisputed facts all of the medical records submitted with the summary judgment motion (DE 27-2), This opinion only sets forth those medical facts that are relevant to this decision. These include any treatment provided by Dr. Liaw as well as treatment provided by others that relate to events where Mr. Robertson alleges that Dr. Liaw was deliberately indifferent even if there was no indication that Dr. Liaw was involved in the event. The facts related to treatments provided by Dr. Liaw are in separate paragraphs from those related to treatments by others.
We begin with the medical events of 2012. On March 5, Dr. Liaw examined Mr. Robertson and noted that he had a follow-up appointment with an outside specialist for his chronic ear infections. DE 27-2 at 1. His report doesn't indicate that Mr. Robertson had any back pain. DE 27-2 at 2. During that visit, Dr. Liaw reviewed his prescribed medications that included boric acid powder for both ears once a day and two 325 mg Tylenol
Dr. Anekal B. Sreeram, an otolaryngologist, saw Mr. Robertson on March 23, and suggested Debrox
On April 12, Dr. Liaw had a follow up visit with Mr. Robertson to discuss the appointments with Dr. Sreeram. DE 27-2 at 12. Dr. Liaw noted that Dr. Sreeram had suggested Vicodin, but no changes were made to Mr. Robertson's medications during this visit.
On April 27, after a follow up visit with Mr. Robertson and after speaking with Dr. Krembs at the prison, Dr. Sreeram decided that the Vicodin prescription wasn't necessary. DE 27-2 at 16-17. On May 1, Mr. Robertson met again with Dr. Sreeram. After that visit Mr. Robertson spoke to a nurse and asked for Vicodin. DE 27-2 at 19. The nurse told him that she couldn't prescribe medication and she forwarded his request to Dr. Krembs. DE 27-2 at 19-20.
On May 8, Mr. Robertson again requested Vicodin as well as a return visit to see Dr. Sreeram. Dr. Liaw prescribed another antibiotic prescription, but didn't schedule an appointment with the outside specialist because Dr. Sreeram declined to see him. DE 27-2 at 21. The same day, Mr. Robertson began receiving Maxidex
On June 1, Dr. Sreeram noted that Mr. Robertson's external ear was 90% cleared. DE 27-2 at 25. On June 6, Mr. Robertson asked a nurse to refer him to a doctor to get a prescription for Vicodin. The nurse declined to do so because there was no indication that Vicodin was needed. DE 27-2 at 27.
On June 20, Dr. Liaw saw Mr. Robertson as a follow up to his visit with Dr. Sreeram. DE 27-2 at 30. Dr. Liaw told Mr. Robertson that he would be scheduled to see an audiologist. DE 27-2 at 30. An audiologist saw Mr. Robertson the next day and recommended that he return to the otolaryngologist. DE 27-2 at 32. On June 26, Dr. Krembs saw Mr. Robertson and told him that he was scheduled to see an otolaryngologist and prescribed him Ultram.
On August 22, Dr. Liaw saw Mr. Robertson for a chronic care visit related to his asthma and high blood pressure. DE 27-2 at 44. The report notes that Mr. Robertson had back pain, but makes no mention of it (or his ears) being discussed or treated; his ears weren't the subject of this visit. DE 27-2 at 44-45.
On August 31, Dr. Sreeram referred Mr. Robertson to the audiologist and suggested Vosol
On October 2, Mr. Robertson told Dr. Liaw that he fell off a ladder and hit his back on a brick. It's unclear whether this had happened recently or was the old injury he previously reported to the nurse. Dr. Liaw ordered an x-ray and a back brace if the x-ray indicated that it was necessary. DE 27-2 at 54. Later that day, Mr. Robertson was x-rayed and some abnormalities were noted. Mr. Robertson then stated that he was born with a defect related to his back. DE 27-2 at 56. A back brace was ordered on October 29. DE 27-2 at 74.
Dr. Sreeram performed surgery on both ears on October 19. DE 27-2 at 57-59. On November 1, Mr. Robertson was admitted to the infirmary at the prison where he was given Vicodin. DE 57-2 at 60-64. On November 2, Dr. Krembs replaced the Vicodin with Tramadol when Mr. Robertson was discharged from the infirmary. DE 27-2 at 65. On November 5, Dr. Sreeram found that Mr. Robertson was doing well. He recommended another follow up visit in a month. DE 27-2 at 71.
On November 6, Dr. Liaw saw Mr. Robertson for a chronic care visit to review his asthma, high blood pressure, and ear issues. Mr. Robertson reported that he was having back pain and asked for a bottom bunk pass. DE 27-2 at 74.
On December 20, Dr. Krembs saw Mr. Robertson, who was complaining of back pain. Dr. Krembs gave him an injection of Ketorolac
On December 30, Mr. Robertson told a nurse that his pain was a 10 on a 10 point scale and requested both oral and injected pain medication. The nurse contacted Dr. Liaw, who cancelled the Ultram prescription, but continued the Tylenol prescription. Mr. Robertson was given a heat pack for his back. DE 27-2 at 84-85.
That brings us to 2013.
Dr. Sreeram performed surgery on Mr. Robertson's left ear on January 3. The doctor discharged him back to the prison the same day and prescribed Cipro
On March 1, Dr. Liaw saw Mr. Robertson about his back pain. Mr. Robertson requested extra strength Tylenol. Dr. Liaw prescribed Vicodin twice a day for five days. DE 27-2 at 110. On March 7, Mr. Robertson asked a nurse to have his Vicodin prescription extended. The nurse sent Dr. Liaw an email asking about using an alternative medication. DE 27-2 at 115. On March 8, Mr. Robertson began taking Imipramine.
On March 10, in response to Mr. Robertson's complaints of back pain, a nurse told him that a sick call visit was unnecessary because he needed to take the Tofranil for three weeks to determine its effectiveness.
[Patient] instructed to continue present plan of care —
DE 27-2 at 129. On April 12, Dr. Sreeram examined Mr. Robertson and suggested Vosol ear drops. DE 27-2 at 131-32. On April 16, Mr. Robertson began receiving the drops twice a day. DE 27-2 at 134. On June 16, a nurse told Mr. Robertson that he could take Tylenol for his back pain. DE 27-2 at 141. On June 25, Dr. Sreeram performed surgery on Mr. Robertson's ears and prescribed Tylenol 3 and Cipro. DE 27-2 at 143-44 and 152. On June 25, Mr. Robertson began receiving Cipro. DE 27-2 at 147. On June 26, he began receiving Tylenol 3. DE 27-2 at 149. On July 1, Dr. Sreeram noted that Mr. Robertson's ears had improved.
On July 5, Dr. Liaw saw Mr. Robertson as a follow up to his ear surgery and continued his prescription of Tylenol for pain. DE 27-2 at 152. On July 15, Mr. Robertson complained to a nurse about ear and back pain. DE 27-2 at 153. She referred him for a doctor visit.
On July 22, Dr. Sreeram examined Mr. Robertson for a follow up visit. DE 27-2 at 157. Mr. Robertson received his new back brace on August 1, DE 27-2 at 158, and began receiving Tylenol-Codeine #3 twice a day. DE 27-2 at 160. On August 12, a nurse observed Mr. Robertson before and during a nurse's visit. She noted that despite his statement that his back hurt very badly, he didn't show any signs of back pain. DE 27-2 at 162. On August 13, an audiologist determined that Mr. Robertson's hearing was normal. DE 27-2 at 164-66. On August 28, Mr. Robertson complained that he hadn't "received anything for my back pain." DE 27-2 at 173. A nurse responded that he was approved to receive Tylenol for his back pain.
On November 6, Dr. Liaw conducted a chronic care visit with Mr. Robertson. DE 27-2 at 185. Mr. Robertson complained of back issues but the doctor found that he could move without difficulty.
On December 9, Mr. Robertson complained about back pain and a nurse told him that he had been referred for physical therapy. DE 27-2 at 193. On December 10, Mr. Robertson walked to medical without assistance after complaining of back pain. After being seen by a nurse, he "got up out of his chair and walked back into the hallway with no [signs or symptoms] of back injury or pain." DE 27-2 at 195. On December 11, after complaining of back pain, a nurse told him that he had been seen six times since September for back problems and has mentioned them every time he requested a breathing treatment.
On December 18, Mr. Robertson told Dr. Liaw that he was supposed to have had another follow up visit with Dr. Sreeram for his ears. DE 27-2 at 203. Dr. Liaw reviewed the consultant notes, but there was no mention of a follow up visit.
These medications cause Mr. Robertson to have gastrointestinal problems: Chlorpheniramine, Aspirin, Magnesium, Calcium Carbonate, Ibuprofen, Pseudoephedrine HCI, and Naproxen. DE 27-2 at 227-28.
Mr. Robertson alleges that Dr. Jackson was deliberately indifferent to his serious medical needs. The records contains no evidence that Dr. Jackson ever treated or refused to treat Mr. Robertson. "For a medical professional to be liable for deliberate indifference to an inmate's medical needs, he must make a decision that represents such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment."
Mr. Robertson argues that the Dr. Liaw was deliberately indifferent because he didn't provide him with ear plugs.
This record contains no evidence that Mr. Robertson needed ear plugs. There is no record that Dr. Sreeram, the otolaryngologist who treated him for more than a year and a half and performed surgery on his ears four times, ever recommended that he have ear plugs. Indeed, Mr. Robertson told a nurse that he didn't use ear plugs because Dr. Sreeram told him not to put any thing in his ear canals. When Mr. Robertson asked for ear plugs, Dr. Liaw denied the request because he was advised not to put anything in his ears and Dr. Sreeram had never suggested that he needed ear plugs. It wasn't deliberately indifferent for Dr. Liaw to have refused to provide Mr. Robertson with ear plugs.
Mr. Robertson argues that the Dr. Liaw was deliberately indifferent because he refused to provide him adequate pain relief for his ears and back. Dr. Liaw treated Mr. Robertson fifteen times in 22 months. During that time, Mr. Robertson saw at least three other doctors 26 times. Those doctors prescribed him Ultram, Vicodin, Tylenol, Tylenol 3, and Ketorolac injections. Despite repeated evidence that Mr. Robertson wasn't in nearly as much pain as he claimed and despite having been caught concealing pain medication rather than swallowing it, Dr. Liaw prescribed Tylenol, Vicodin, Imipramine, and Ultram. He ordered an x-ray of Mr. Robertson's back and provided a back brace, a heat pack, and replacement back brace. He recommended that Mr. Robertson perform back exercises and lose weight. He also referred him for physical therapy. "Whether and how pain associated with medical treatment should be mitigated is for doctors to decide free from judicial interference, except in the most extreme situations."
Mr. Robertson argues that despite numerous treatments, he remained in pain. "If [a doctor] exercises sound judgment in selecting from a variety of approved treatments and uses ordinary care and skill in treating a patient, then the [doctor] is not responsible for the treatment's lack of success."
Mr. Robertson argues that Dr. Liaw was deliberately indifferent because he delayed ordering ear drops for two to three weeks. Nothing in the summary judgment record supports that assertions. On the five occasions that Dr. Sreeram prescribed ear drops, Mr. Robertson twice began receiving them the same day and twice had already been receiving them. One time there was a four-day delay. It is unclear why there was a delay, but there is no indication that Dr. Liaw was involved.
Mr. Robertson argues that Dr. Liaw was deliberately indifferent because he prescribed medication to which he was allergic. The undisputed evidence shows that Mr. Robertson has gastrointestinal problems if he takes Chlorpheniramine, Aspirin, Magnesium, Calcium Carbonate, Ibuprofen, Pseudoephedrine HCI, or Naproxen. Dr. Liaw prescribed Tylenol, Vicodin, Imipramine, and Ultram. There is no evidence that Dr. Liaw ever prescribed Mr. Robertson any medication to which he is allergic.
Finally, Mr. Robertson argues that Dr. Liaw was deliberately indifferent because he wouldn't refer him to physical therapy or send him to a specialist. The undisputed evidence shows that Dr. Liaw did refer him for physical therapy. It's unclear whether Mr. Robertson saw a physical therapist before he was transferred to the Miami Correctional Facility, he hasn't provided any evidence that Dr. Liaw delayed the scheduling of his physical therapy appointments. As for not referring him to a back specialist, prisoners are "not entitled to demand specific care [nor] entitled to the best care possible"
For the foregoing reasons, the plaintiff's motion (DE 30) asking to dismiss the summary judgment motion is DENIED. The defendants' motion for summary judgment (DE 26) is GRANTED. The clerk is DIRECTED to enter judgment in favor of the defendants and against the plaintiff.
SO ORDERED.
