Opinion
Civil Action No. 11-cv-00813-RBJ-CBS
07-31-2012
DANIEL SELF, Plaintiff, v. KEVIN MILYARD, et al., Defendants.
FINAL ORDER AND JUDGMENT
This case was tried to the Court July 23-24, 2012. This order contains the Court's findings of fact, conclusions of law, and final judgment.
FACTS
The plaintiff, Daniel Self, is an inmate serving a life sentence in the Colorado Department of Corrections ("CDOC"). During most of the events in this case he was incarcerated in the Sterling, Colorado Correctional Facility ("SCCF"). This case arises from two entirely separate incidents that occurred in 2009, essentially amounting to two cases within one lawsuit.
The Resuscitation Incident.
On January 1, 2009 Mr. Self executed a "Cardiopulmonary Resuscitation Directive," frequently referred to in this case as a "Do Not Resuscitate" or "DNR" order. The DNR order, on a CDOC form, directed "emergency medical personnel, health care providers and other persons to withhold cardiopulmonary resuscitation in the event that my heart or breathing stops or malfunctions." Ex. 2. It is undisputed that this was a validly executed directive and was binding upon the CDOC. It was placed in Mr. Self's medical file.
At approximately 9:20 p.m. on April 4, 2009 Mr. Self's cellmate reported to SCCF personnel that Mr. Self was unconscious and unresponsive in his bed. No clinical staff, meaning physicians, physicians' assistants, nurse practitioners and nurses, was present that evening. Prison security personnel were unable to revive Mr. Self, and an ambulance was summoned. Upon the arrival of emergency medical personnel, approximately one hour after Mr. Self was first reported to be unresponsive, Mr. Self was found "lying supine on pram at prison; no acute distress; skin perfusing, warm, and dry; unresponsive; GCS = 1, 1, 3; snoring respirations at rate of 15-20/min." Ex. N (paramedic's note).
The paramedics initially inserted a nasopharyngeal airway and applied oxygen at 15 LPM via a non-rebreather mask. Because that did not yield a response, the paramedics removed the nasopharyngeal airway and inserted a nasal tube. Paramedic Daniel Schellenger (who later went to work as a correction officer at the SCCF) testified that he intubated Mr. Self to clear his airway, because he was starting to vomit. Although intubation is also used for cardiopulmonary resuscitation, Mr. Schellenger testified that he never performed CPR that evening, because Mr. Self never stopped breathing or had any respiratory malfunction. The paramedics then transported Mr. Self, still unconscious and unresponsive, to the Sterling Regional Medical Center, a Level III trauma hospital.
CDOC Administrative Regulation 700-27, which was in effect at that time and remains in effect to this day, requires that whenever an offender's medical file contains an advanced medical directive, such as a DNR order, the outside of the file must be marked with an orange sticker to alert anyone handling the file to the fact that it contains a directive. Ex. 4 ¶IV.3 (current edition). There is no evidence that Mr. Self's file had been properly stickered, and the Court finds to a preponderance of the evidence that it was not. After the fact, in response to Mr. Self's complaint that his DNR order was not honored, Nurse Greg Dyson indicated that he would mark the outside of the file "with a big 'DNR' to alert anyone that looks at it to be aware that signed request is inside." Ex. 14. That, of course, was of no value on the night in question.
Even had the file have been properly marked, however, it would have made no difference at the scene. No one informed the paramedics of Mr. Self's DNR order. Indeed, with the exception of the Shift Supervisor, who did not look at the file, non-clinical personnel at the SCCF are not permitted to open an inmate's medical file. Nor did prison personnel provide the medical file to the paramedics, who could have opened it and found the directive. Furthermore, Mr. Self was not wearing, because the CDOC did not allow him to wear, a bracelet or necklace or any other indication of his DNR wishes. The paramedics never learned of the DNR order. Defendants contend that this is a moot point, because Mr. Self was not experiencing respiratory failure or malfunction, and therefore, the DNR order did not apply.
When an offender is transported to a hospital, his medical file is supposed to go with him, usually in the possession of the transporting officer who accompanies him and the paramedics. No one knows whether that occurred in this instance. What is known, however, is that the Sterling Regional Medical Center records contain an entry at 1:08 a.m. on April 5 2009, "Pt is DNR yet was intubated by EMS." Ex. O at 1. They presumably learned that by examining Mr. Self's file. The ambulance had departed the prison at 10:22 p.m. on April 4. Ex. N at 1. Therefore, the file appears to have been delivered to the hospital, in the ambulance or otherwise, within less than three hours after Mr. Self was taken from the scene.
There is a notation in the Sterling Regional Medical Records indicating a "clinical impression" of altered mental status and "respiratory arrest." Ex. 10 at Bates number Self 100215. Mr. Self was taken from Sterling by air ambulance to the Denver Health Medical Center to be seen by a neurology specialist. There a history of "respiratory failure" was noted. Ex. 11 at Bates number Self 100204. Plaintiff relies on those notations as indicating that Mr. Self did experience a respiratory malfunction that evening. The Court noted the same notations in its pre-trial order denying summary judgment on the resuscitation claim.
Dr. Paula Frantz, who is the Chief Medical Officer for the CDOC, and who has substantial training and experience in emergency medicine in addition to her board certification in family medicine, testified that if those notations indicated physicians' ultimate determinations, she would disagree. However, she considers these notations to be part of a differential diagnosis, not the final diagnosis. The medical records, beginning with the paramedic evaluation and continuing through Denver Health, indicate that Mr. Self was always breathing on his own. Dr. Frantz is adamant, based upon her review of the medical records, that cardiopulmonary resuscitation was neither needed nor performed at any time during the incident. Consistent with the trial testimony of paramedic Schellenger, Dr. Frantz believes that intubation was appropriate but only to protect Mr. Self from aspiration, i.e., vomiting, into his airway.
Defendants also emphasize the fact that, despite knowledge of the DNR order, hospital personnel did not extubate Mr. Self. This, they claim, demonstrates that they recognized after performing tests that he had not stopped breathing or experienced respiratory malfunction. The Denver Health records, after noting that Mr. Self had been transferred from an outside hospital due to respiratory failure, indicate that there was no identifiable cause; that it was likely due to a medication overdose; and that this was unlikely to have been an ischemic event (anything that would contribute to a lack of oxygen), given his quick recovery. Ex. P at Bates number Self 100204 and at Bates number Self 100256.
Also, a toxicology screen found an anti-depressant medication, doxepin, in Mr. Self's blood. That drug, in sufficient quantities, can be fatal. Medications belonging to other inmates were found in his cell. On April 16, 2009 Mr. Self reportedly told a CDOC psychiatrist that he had saved up his pills and then had taken them in a suicide attempt. Ex. M, last (unnumbered) page. No contrary evidence was presented. Mr. Self did not testify. The significance of these facts is that, as plaintiff conceded, DNR orders are not enforceable in cases of attempted suicide or homicide.
Plaintiff presented no expert medical testimony other than cross-examination of defendants' witnesses. The Court finds, based upon the expert testimony and the measurements of his respiration rate, that Mr. Self never stopped breathing. The Court also finds, to a preponderance of the evidence, that Mr. Self did not experience any significant respiratory malfunction. Rather, at least as a matter of hindsight, he did not experience a respiratory failure that required cardiopulmonary resuscitation to save his life. The Court also finds, to a preponderance of the evidence, that the most likely cause of Mr. Self's becoming unconscious and unresponsive that evening was an intentional drug overdose.
The Broken Wrist Incident.
On October 5, 2009 Mr. Self fell out of his top bunk and injured his wrist. He was first seen by an SCCF nurse who observed that the wrist was swollen and deformed. He was then taken to an outside (non-CDOC employee) orthopedic surgeon, Darrel T. Fenton, D.O., who diagnosed a right wrist fracture. Surgical repair was performed on October 9, 2009 by Robert Lambert, M.D. Dr. Lambert's note indicates that he was to return to be placed in a short-arm cast and for new x-rays on October 23. Ex. R. at Bates number Self 100144. Likewise, the doctor's dismissal sheet for the patient noted "23 Oct - call for appt." Ex. Q at Bates Self/Def CDOC 00214.
The CDOC contracts with a private entity, Physician Health Partners which does business under the name "Correctional Health Partners" ("CHP"), to manage the referral and approval of medical care by outside specialists, somewhat in the nature of managed health care outside the prison environment. When someone on the prison's clinical staff believes that an inmate should be seen by a specialist, he or she contacts CHP and requests that an appointment be made. If CHP agrees it makes the appointment, and prison personnel then transport the inmate to his appointment. If the specialist wants to see the inmate for a follow-up visit after the first visit, it is the specialist's responsibility under CDOC policy and the terms of the CDOC-CHP contract to contact CHP and so indicate. The specialists with whom SCCF deals supposedly have been trained in this procedure.
Apparently neither Dr. Lambert, the operating surgeon, nor Dr. Fenton, the specialist who first saw Mr. Self, contacted CHP. However, as indicated, Dr. Lambert's records show that Mr. Self should return on October 23. The outside specialist's records go to the SCCF and are made part of the inmate's medical file there. On October 28, 2009 a staff physician at the SCCF, Dr. Fortunato, noticed that a follow-up had been requested. Notwithstanding the normal procedure, Dr. Fortunato directly contacted the specialist's office to "sort out the scheduling mishap." Ex. Q.
Mr. Self was seen by Dr. Fenton on November 4, 2009. The doctor's note indicates that he had "a little dorsal fragmentation;" that the joint surface appeared to be aligned but was "a little dorsally shifted;" and that they were going to put him in a cockup splint. He was instructed to work on volar (downward) but not dorsal (upward) flexion. The note indicates that Dr. Fenton wanted to see Mr. Self in one month, take another x-ray, check his function, and check his alignment. If he remained satisfactory, then no further intervention would be needed. If there was too much more dorsal migration, a dorsal osteotomy would be performed. Ex. Q at Bates number Self/Def CDOC 00385.
Dr. Fortunato saw Mr. Self two days later, on November 6, 2009. He noted that the orthopedic specialist told Mr. Self that he would schedule a repeat evaluation in approximately one month. Ex. Q, Bates number Self/Def CDOC 00210. Dr. Fortunato's note also states, "Educate inmate ROM exercises and isometrics." Plaintiff argues that this instruction is contrary to Dr. Fenton's instruction that limited him to volar flexion only. Neither party called Dr. Fortunato (who has since left the SCCF) as a witness. Both parties did list Dr. Fenton as a witness. Neither party called him.
Mr. Self was not seen again in one month. In fact, Mr. Self was not seen by an orthopedic specialist until June 11, 2010, approximately six months after he was supposed to have been seen. Defendants assign primary blame for this to Dr. Fortunato, their former in-house physician. They interpret the records as indicating that Dr. Fortunato saw Mr. Self in December, knew he was supposed to have a follow-up visit with Dr. Fenton, knew that this had not occurred, but did nothing about it. They also note that Dr. Fenton did not make a request to CHP until April 27, 2010; it was approved by CHP on May 7, 2010; an appointment was scheduled for May 26, 2010 but was cancelled because the doctor was late; another appointment was scheduled for May 28, 2010 but was cancelled because transportation was not available; and that even after Mr. Self saw Dr. Fenton on June 11, 2010 and it was determined that an osteotomy was necessary, it was not performed until September 2, 2010. Ex. S at Bates numbers Self/Def CDOC 144-49.
The Court agrees that, at least based on the record before the Court, some fault can be attributed to Dr. Fortunato. However, the record shows that beginning on January 1, 2010 and continuing through March 19, 2010 Mr. Self submitted a series of seven "kites" in which he complained about wrist pain and asked to see a doctor. A kite is a slip of paper filled out by an inmate, collected three times daily within the SCCF, and supposedly triaged by a nurse. The triaging nurse is supposed to contact a physician, physician's assistant or nurse practitioner for any appropriate follow-up. The first kite indicated that he was supposed to have been seen by Dr. Fenton around December 4, 2009 for follow-up to his surgery. Ex. 17 at first unnumbered page. This was repeated in the second kite. His desire to see a doctor was repeatedly expressed thereafter. Id. at unnumbered pages 1-4. He received no response to the kites.
After he received no response to his first two kites, Mr. Self submitted a formal step one grievance in which he stated that Dr. Lampert had "botched" the October 5 surgery; that Dr. Fenton saw him for follow-up care; that Fenton had told him that it did not look good but that he would see him in a month; that he had not been taken to Dr. Fenton again; and that his wrist was misaligned, sore, and not functioning properly. He indicated that his goal was to have his wrist fixed by a qualified surgeon. Ex. B at Bates number Self/Def CDOC 00437.
When he received no response, he submitted a step two grievance on the same subject on February 15, 2010. Id. at 003. Having received no response, he submitted a step three grievance on February 27, 2010. Id. at 002. Finally, on March 23, 2010 Mr. Self received a response to the step one grievance from Nicole Wilson, a records technician. She wrote, "Mr. Self, usually it is up to the specialist to schedule his own follow up appointments. However, Dr. Goldsmith (a SCCF in-house physician) has requested another appointment with Dr. Fenton. We will see if we can get reschedule (sic) for as soon as possible. GRIEVANCE RESOLVED." Id. at 437.
As indicated above, Mr. Self did not receive an appointment with Dr. Fenton for nearly three months after Ms. Wilson declared the grievance to have been resolved. Ms. Wilson's ultimate supervisor, defendant Beverly Dowis, has acknowledged in her trial testimony that the response to the grievances was untimely; that a records technician should not have been the responder; and that the response was, in any event, inadequate.
The osteotomy that was ultimately performed apparently ended or at least significantly reduced the pain that Mr. Self had been suffering for at least ten months. However, it did not restore normal function. Moreover, Mr. Self's wrist, as defendants acknowledge, is grossly deformed. Whether it can be improved through additional surgery is unknown to this Court. No evidence was presented on that subject.
CASE HISTORY.
In his First Amended Complaint Mr. Self, who has been represented by counsel throughout, named as defendants Kevin Milyard, then the Warden at SCCF; Aristedes Zavaras, then the Executive Director of CDOC; Cheryl Smith, mistakenly thought to be CDOC's Chief Medical Officer; Dr. Fortunato; SCCF Nurse Kathy Lovell; SCCF Physician's Assistant Gatbel Chamjock; SCCF Health Service Administrator Beverly Dowis; Physician Health Partners, to whom I have referred as CHP; Dr. Stephen Krebs, Chairman of Physician Health Partners and President and CEO of CHP; Julie Dorsey, CHP's Regional Manager; Karen Schmedeke, a CHP Nurse Manager; Lifecare, Inc., the ambulance company; paramedic Schellenger; EMT Nicole Hensman.
Mr. Self asserted eight claims for relief against various combinations of these defendants: (1) violation of his Eighth Amendment right to be free from cruel and unusual punishment (failure to honor the DNR directive); (2) violation of the Eighth Amendment (improper treatment of his wrist injury); (3) violation of his Fourteenth Amendment right to due process (DNR directive); (4) negligent failure to train and supervise; (5) negligence by emergency responders; (6) battery by emergency responders; (7) intentional infliction of emotional distress by the emergency responders; and(8) negligent infliction of emotional distress by the emergency responders. [#5]
The number of defendants and claims was substantially pared down during the later course of the case. In part this was done by plaintiff's voluntary dismissals of his claims against Lifecare, Hensman, Schellenger, Fortunato and Lovell [#40]; Physician Health Partners, Krebs, Dorsey and Schmedeke [#44]; Zavaras [#63]; and Smith [#82].
In an order issued May 7, 2012 [#48], the Court granted a motion to dismiss in part, dismissing the first claim as to all defendants, and the third claim against defendants Dowis and Chamjock. In the same order the Court granted qualified immunity to defendants Milyard, Smith (later voluntarily dismissed) and Krebs (the Court apparently overlooked the fact that the claims against him had previously been voluntarily dismissed). Then, in an order issued July 19, 2012 [#92], the Court granted the remaining defendants' motion for summary judgment in part. The Court dismissed all remaining claims against defendant Chamjock and ordered that defendants Dowis and Milyard were entitled to the protection of qualified immunity with respect to all claims against them for money damages. Id. at 17. The latter order, with respect to defendant Milyard, inadvertently duplicated an earlier order granting him qualified immunity protection.
As a result of these various dismissals, the only claims remaining were the second claim, asserting a violation of Mr. Self's due process rights by defendants Milyard and Dowis for failure to provide proper care for his wrist injury; and the third claim, asserting a violation of the Eighth Amendment by defendant Milyard, arising from the failure to honor his DNR directive.
Mr. Milyard was at that time the Warden of the SCCF. He has since been promoted to Deputy Director of the CDOC. He testified, without contradiction, that as Warden he had no supervisory authority over the clinical staff. Rather, although he was the chief executive officer at the facility, the chain of command leading up to him consisted of the security side of the facility.
Ms. Dowis testified, and her job description confirmed, that as the facility's Health Services Administrator she has operational and supervisory oversight over the clinical staff. Ex. 18 at 1. Her duties include preserving inmates' rights to legally mandated healthcare. Id.at 2. Among other things she supervises the offender grievance process with respect to medical issues. Id. Essentially, Ms. Dowis was the supervisor in charge of ensuring, or at least exercising her best efforts to ensure, that inmates receive necessary and appropriate medical care.
Because the claims for money damages had been dismissed, and only equitable relief was still sought, the two remaining claims were tried to the Court.
CONCLUSIONS
Third Claim: Failure to Honor the DNR Directive.
Defendants do not dispute that they had a legal obligation to honor Mr. Self's DNR directive. Indeed, "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment." Cruzan v. Director, Missouri Dept. of Health, 497 U.>S. 261, 278 (1990).
This prison did not, however, establish or maintain a reliable method of assuring that an inmate's DNR directive would be honored. Contrary to the CDOC's own administrative regulation, no one placed an orange sticker on Mr. Self's medical file to alert persons handling the file that it contained an advanced directive. No one wrote "DNR" on the file. Dr. Frantz testified that writing "DNR" raises HIPPA confidentiality concerns. In this Court's view, that defies common sense. The file is available only to clinical staff and, apparently, to a Shift Supervisor if clinical staff personnel are not present. The inmate wants those individuals to know that the file contains a DNR directive. Moreover, he has a right to waive confidentiality.
The fact that a nurse, after the incident, promised to write a large "DNR" on the file jacket reflects that person's recognition, albeit untimely recognition, of this simple fact. Mr. Milyard testified that in his view it would make sense to make the whole file jacket florescent orange or yellow and write "DNR" all over it to make sure that it got the attention of persons handling the file. That testimony too reflects common sense and good judgment. To the extent that traditional paper files are replaced by electronic files, then an electronic flag of similar prominence is a minimum requirement.
Flagging the file does no good, however, if the file is not provided to persons who are prepared to engage in cardiopulmonary resuscitation. The CDOC now requires, at least at Sterling and other large facilities, that there be a night nurse on duty, so that there will always be a clinical staff person on duty on site. This is at least a step in the right direction. I also note that an inmate may place a copy of his DNR order in his pocket or in his billfold, a place where emergency medicine personnel often look.
Whether these measures will assure compliance with DNR orders is a different question. Mr. Self certainly is not convinced. He wants to be able to wear a bracelet or necklace that would indicate that he has executed a DNR directive. Inmates already are required to wear wrist bands indicating their housing placement, and that inmates are permitted to wear chains with religious symbols. He asks that this be expanded in some manner to, if nothing else, prompt personnel who might come across him in distress to look at his file. He also notes that the file would not be available if he happened to experience cardiac or respiratory failure outside the prison (not that he is likely to spend much time outside the prison, given his sentence). It appears to this Court that such prompts could provide an added measure of assurance that a DNR order would be followed.
On the other hand, Mr. Milyard, whose testimony was credible, expressed concern about DNR bracelets. For example, he fears that prison gangs might abuse DNR bracelets or persons wearing them, or that they might obtain and place a DNR bracelet on an assault victim and cause prison staff inadvertently to believe that the victim had executed a DNR directive and fail to proceed with appropriate resuscitative efforts. Dr. Frantz shares these concerns.
The parties presented testimony concerning possible variations on the theme such as the use of different colored wrist bands without a specific DNR reference or even the use of bar codes on wrist bands. Colored wrist band were tried at one time, but some inmates complained that their privacy was violated. Bar codes and the necessity to acquire, use and maintain scanners could create other problems, including expense, that were not explored in this trial. Mr. Milyard also believes that this technology would tend to "dehumanize" relationships between inmates and prison personnel.
I note that no evidence was presented as to whether any of these alternatives is in effect or has been tried in other state or federal prisons. In any event, whether Mr. Milyard's concerns are sufficient to warrant a court's refusal to consider bracelets or necklaces as a prompt to pull the file and verify the directive is a question that this Court does not reach in this case. Plaintiff's claim arising from the alleged failure to honor his DNR order was not proven for three separate reasons.
First, by the time the various dismissals were completed, the only defendant remaining on the claim was Mr. Milyard. As indicated, he had no supervisory authority over the clinical staff. There was no evidence that he was involved in any way in creating or implementing procedures for identifying and honoring DNR orders. He was not present on the night of April 4, 2009 and had no role in the events that occurred. He was evidently named as a defendant on this claim in the belief that he must have had some oversight responsibility as the Warden. This was not established by the evidence presented. In short, he was not the correct defendant for this claim.
Second, even if Mr. Milyard were the right defendant, plaintiff did not carry its burden of proving that he stopped breathing or suffered a cardiac or respiratory malfunction that evening. Therefore, the failure of SCCF staff to provide Mr. Self's medical file to the paramedics and their failure to alert the paramedics to the DNR caused no harm. The placement of a tube in a person's airway to assist breathing is a recognized measure of cardiopulmonary resuscitation. See, e.g., 6 Colorado Code of Regulations 1015-2, § 2.6 (eff. 4/30/2010)(submitted as Ex. 15). However, it does not follow that intubation was done for the purpose of cardiopulmonary resuscitation or that the placement of the tube in this instance resuscitated Mr. Self. Rather, the preponderance of the evidence causes the Court to find and conclude that the DNR directive was not triggered.
Finally, the preponderance of the evidence is that Mr. Self was unconscious and unresponsive due to an intentional drug overdose in an unsuccessful suicide attempt. It is undisputed that a DNR directive has no application to an attempted suicide or homicide.
Nonetheless, the Court emphasizes that it is constitutionally mandatory that a prison have in place a reasonable and effective method of assuring that an inmate's DNR directive will be honored in the event of a cardiac or respiratory failure or malfunction resulting from anything other than an attempted suicide or homicide. There is simply no excuse not to do so.
Second Claim: Inadequate treatment of the wrist injury.
Plaintiff asserts his Eighth Amendment claim against both Mr. Milyard and Ms. Dowis. "Eighth Amendment claims alleging inadequate or delayed medical care...involve both an objective and a subjective component, such that [the court] must determine both whether the deprivation is sufficiently serious and whether the official acted with a sufficiently culpable state of mind." Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)(internal quotations omitted). The deprivation is "sufficiently serious" where a physician has diagnosed the condition as mandating treatment or where even a lay person would easily recognize the need for medical attention. Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir. 2001). However, "delay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show that delay resulted in substantial harm." Oxendine, 241 F.3d at 1276 (quoting Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000)).
As with the DNR claim, this claim has no merit with respect to Mr. Milyard. With respect to Ms. Dowis, however, certain aspects of the claim were proven. She was responsible to ensure that inmates received necessary and appropriate medical care. However, as she acknowledged at trial, the system then in place under her direction utterly failed Mr. Self. No one at the SCCF arranged for the follow up appointment that the orthopedic specialist requested. Defendants repeatedly cited the fact that the specialist apparently did not contact CHP to request a follow-up appointment as arrangement between the CDOC and CHP required. That is not an excuse. The constitutional duty to provide competent and adequate medical care cannot be delegated to others.
The facts are even more egregious when one considers that Mr. Self did everything that an incarcerated inmate could do to obtain the care he needed. He submitted multiple kites that were apparently ignored. He submitted a grievance that was ignored at each of three steps until finally an unqualified person responded with a meaningless response.
Nevertheless, the Court concludes that plaintiff did not establish the objective component of an Eighth Amendment claim against Ms. Dowis, at least as it applies to the disability and disfigurement claims. Intuitively, one might suspect that delay in treatment is not a good thing. However, in this case, Mr. Self presented no competent medical testimony that the delay in seeing Dr. Fenton from early December, when the appointment should have been made, to mid-June, when Dr. Fenton finally saw him, caused further damage to his wrist. Nor did he testify himself to a "before and after" comparison of the functionality and deformity of his wrist as between December 2009 and June 2010.
There was undisputed testimony that bone fractures in adults generally heal in six to eight weeks, perhaps suggesting that the healing process, and the deformity that occurred, might have been essentially completed by early December 2009 when he was supposed to have been seen again. I also note that when Mr. Self was seen by Dr. Fenton in June 2010, he apparently did not believe that the osteotomy was urgently needed. It was not performed until two and one half months later. The point is that a court cannot just assume that deterioration occurred. It is a matter of proof.
I do find, however, that there was convincing evidence that Mr. Self continued to experience considerable wrist pain during the six-month delay period. There was evidence that when the osteotomy was ultimately performed, the pain was at least reduced if not eliminated. To that extent Mr. Self did prove causation. However, even if one assumes that the subjective component - deliberate indifference -- was proven by the continuous failure of clinical staff, under Ms. Dowis' direction and supervision, to respond appropriately to his kites and grievances, the claim ultimately fails, because there is no available remedy for the harm caused by the pain.
Mr. Self requested an award of money damages. Regrettably, the Court had no choice but to grant the individual defendants qualified immunity with respect to the damages claim. Government officials enjoy qualified immunity from damages claims unless a plaintiff establishes both that their conduct violated a constitutional right and that the right was clearly established at the time of the violation. See, e.g., Toevs v. Reid, 646 F.3d 752, 755, 760-61 (10th Cir. 2011). An inmate's right to have prison officials make a follow-up appointment with an outside specialist, as requested by the specialist in his records, notwithstanding the specialist's failure to initiate the request directly with the managed care provider, was not a clearly established right in 2009 through 2010. The Court was aware of no United States Supreme Court or Tenth Circuit, or even District of Colorado, decision on point. This order perhaps might serve to put prison officials in Colorado on notice of such a right or potential right for future purposes, but that does not help Mr. Self in this case.
The equitable remedy he requested before trial was an order that he be restricted to a lower bunk. That would not address the unnecessary pain that he experienced in 2009 and 2010. Moreover, the evidence was that he does have a lower bunk restriction. The evidence further showed that he now resides at the Colorado State Penitentiary (not in administrative segregation), which only has one bed per cell. It is conceivable that he could in the future be placed back in an upper bunk in a different facility. However, in response to a specific question from the Court, defense counsel stated that she could envision no scenario where this would occur, unless Mr. Self's wrist is substantially improved and such a restriction is unnecessary.
During trial plaintiff's counsel suggested another remedy, i.e., that the Court order that he be taken to an orthopedic specialist for further evaluation and perhaps treatment of his wrist. That, too, would not address the pain he suffered two years ago. Had he proven liability with respect to his disability and disfigurement, I may well have considered such an order. As it is, I can only rely on defendants' continuing duty to ensure that inmates get necessary and appropriate medical care. I assume and expect that they will do everything reasonably possible, in good faith, to make appropriate additional consultation and treatment available to him. They owe him at least that much.
ORDER
The Court enters judgment in favor of the remaining defendants, Kevin Milyard and Beverly Dowis, and against the plaintiff, Daniel Self. All remaining claims and this civil action are dismissed with prejudice. As the prevailing parties, defendants are entitled to an award of their reasonable costs. They may, if they wish, submit a bill of costs to the Clerk of this Court for consideration.
DATED this 31th day of July, 2012.
BY THE COURT:
/s/_________
R. Brooke Jackson
United States District Judge