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Smith v. Warner

United States District Court, W.D. Wisconsin

September 20, 2017

DAMIEN SMITH, Plaintiff,



         Pro se prisoner Damien Smith is proceeding on a claim that several medical care providers at the New Lisbon Correctional Institution failed to give him appropriate treatment after he broke his hand in May 2014, thus violating his rights under the Eighth Amendment and state negligence law. Now before the court are a motion for summary judgment filed by state defendants Anthony Hentz, Angela Stetter, Jean Felber, Candace Warner, Phillip Hoechst and Karl Hoffmann, dkt. #59, and separate motions for summary judgment filed by the privately-employed defendants Pam Hayward, dkt. #71, and Annette Zaripov-Brand, dkt. #76.

         After defendants filed their motions, plaintiff moved to amend his complaint to abandon his claims against defendants Phillip Hoechst and Jean Felber. Dkt. #81. That motion will be granted. In light of the advanced stage of the case and plaintiff's failure to oppose Hoechst's and Felber's arguments for summary judgment, those defendants will be dismissed with prejudice.

         As for defendants' motions for summary judgment, I am granting them in part and denying them in part. The motions will be granted with respect to plaintiff's claims against defendants Warner, Hoffmann and Hayward, as no reasonable jury could conclude that these defendants were deliberately indifferent or negligent in treating plaintiff's hand injury. The motions will also be granted with respect to plaintiff's claim against Hentz relating to the August 2015 visit and his claim against Zaripov-Brand relating to the June 5, 2014 visit. However, I am denying the motions as to Hentz's, Zaripov-Brand's and Stetter's treatment of plaintiff in May 2014, because there are disputed issues of material fact that must be resolved by a jury.

         From the parties' summary judgment materials and the record, I find that the following facts are undisputed, unless otherwise noted.


         A. The Parties

         Plaintiff Damien Smith is a prisoner incarcerated at the New Lisbon Correctional Institution. Several of the defendants were employed by the Wisconsin Department of Corrections at New Lisbon during the relevant time period: Dr. Karl Hoffman as a physician, Anthony Hentz as a registered nurse, Candace Warner as manager of the health services unit and as a registered nurse and Angela Stetter as a registered nurse. Defendant Pam Hayward was employed as a nurse practitioner by Maxim Healthcare Services, Inc., and was working at New Lisbon on a “locum tenens assignment, ” that is, a temporary substitute, at all times relevant to this case. Defendant Annette Zaripov-Brand is a registered nurse who was assigned in 2014 to work at New Lisbon by her employer, Totalmed Staffing, Inc.

         B. Health Services at New Lisbon Correctional Institution

         Nurses in the health services unit are generally the first point of contact for inmates with health concerns at New Lisbon Correctional Institution. They triage patient complaints, that is, they determine the priority of patents by the severity of their condition, handling directly those that do not require attention from a doctor. Nurses may refer to “nursing protocols, ” which are written guidelines for treatment that are consistent with the guidelines set by the Wisconsin Board of Nursing. If a nurse concludes that a complaint does not require evaluation from a doctor, the nurse may provide education or over-the-counter medications to the patient. However, nurses may not order testing or prescribe controlled medication. For serious complaints, nursing staff insure that patients see an advanced care provider, such as a nurse practitioner or a physician. If there is an emergency or no advanced care provider is on-site or available, nurses may direct patients to be sent to the local hospital.

         Only advanced care providers may request outside appointments with a specialist. The advanced care provider must complete a DOC-3001 Off-Site Service Request and Report form, indicating the type of care requested and the potential provider. The request also can indicate the level of care required by assigning a “class.” Class I and Class II are considered emergency and urgent care and neither requires prior authorization. Class III and Class IV are considered non-urgent and elective non-covered services, and both require prior authorization for care. A committee of Department of Correction employees that meets once a month determines whether to approve requests requiring prior authorization. If an offsite appointment is approved, New Lisbon's medical program assistant associate schedules the appointment with the outside provider. Health service unit nurses and advanced care providers do not have authority or control over scheduling offsite appointments.

         C. Plaintiff's Injury and Defendants Hentz and Zaripov-Brand's Initial Evaluations

         On May 10, 2014, plaintiff fell on his left hand while playing basketball during recreation time. Correctional staff sent plaintiff to the health services unit immediately. It was Saturday and there was no physician on site. After waiting for about two hours, plaintiff saw defendant Nurse Hentz. Plaintiff told Hentz he had broken his hand, pointed out what he and other inmates believed was an obvious displacement of a bone in his hand and asked to see a doctor or be sent to the hospital. (Plaintiff says that Hentz responded by acknowledging the displacement but stating that it appeared “barely” displaced. Hentz denies that plaintiff's hand had any obvious displacement.)

         In reviewing plaintiff's injury, defendant Hentz consulted the “musculoskeletal nursing protocol, ” which provides procedures for evaluating musculoskeletal injuries. Hentz evaluated plaintiff's grasp, noting that plaintiff had a strong grasp with his right hand and a weak grasp with his left hand. Hentz performed a “capillary refill test, ” noting plaintiff had good sensation and blood flow. (Hentz also noted that plaintiff's left hand had no swelling or obvious deformity and that plaintiff had a full range of motion with his left wrist and all of his fingers. Plaintiff disputes the accuracy of these notes, stating that his hand was red, slightly swollen, obviously deformed and lacked the range of motion of his other hand.) Hentz asked plaintiff to rate his pain on a scale of 1 to 10, with 10 being the worst pain plaintiff had ever experienced. Plaintiff told Hentz the worst pain he had experienced was being shot twice, while his hand felt like it was being stabbed repeatedly with a butcher's knife. Plaintiff thought his hand felt about half as bad as being shot, so he agreed with Hentz's suggestion that his pain was about 5 on a scale of 10.

         Defendant Hentz gave plaintiff ibuprofen and told him to ice his hand and submit a health service request if he continued to have problems. Hentz did not provide a splint or any other protection for plaintiff's hand and refused to contact an advance care provider for a consultation or send plaintiff to the hospital. Hentz also did not schedule any follow-up care. (Plaintiff says Hentz told him he would normally send a patient with plaintiff's symptoms to the doctor but that none were available. Hentz denies saying this.)

         The next day, May 11, 2014, plaintiff submitted a health service request stating that his hand had worsened. For the next several days, plaintiff was in severe pain and could not use his hand at all. Other inmates had to assist him with his daily activities.

         On May 16, 2014, plaintiff was seen by defendant Zaripov-Brand, a registered nurse. By this time, the swelling in plaintiff's hand had increased. Plaintiff told Zaripov-Brand that his hand was broken and pointed out where he believed the bone was displaced. He also told her his hand still felt like it was being stabbed with a butcher's knife repeatedly, that he was in severe pain and distress and that ibuprofen and tylenol were not relieving his pain. He also said that other inmates had to help him with daily activities. Zaripov-Brand examined plaintiff's hand and noted swelling and musculoskeletal pain with the potential for impaired movement, but no bruising. She noted his pain was “stabbing” and at a level of 5 on a scale of 10. (Plaintiff says Zaripov-Brand told him that his hand looked like it might be fractured and that she would refer him to a doctor and order an x-ray. Zaripov-Brand denies saying this, stating that she did not have authority to order an x-ray and did not think plaintiff needed to be seen by a physician. It is undisputed that Zaripov-Brand did not order an x-ray or refer plaintiff to a physician.) Zaripov-Brand gave plaintiff additional ibuprofen and tylenol, told him to keep his hand elevated to reduce swelling and advised him to return to the health services unit if he did not notice improvement. She declined to splint his hand or refer him to the hospital.

         On May 22, 2014, plaintiff submitted another health service request. He stated that at his last appointment he had been told he would be called down to the health services unit the following Monday or Tuesday but had not been called. He stated he was “still having issues” and asked to receive an x-ray of his hand.

         Defendant Stetter wrote to plaintiff on May 23, 2014 that he was scheduled for an x-ray “next week.” (Defendants do not explain why Stetter told plaintiff he was scheduled for an x-ray when neither Hentz nor Zaripov-Brand, nor apparently anyone else, had ordered an x-ray.) Stetter did not see plaintiff in response to this health service request.

         D. Diagnosis and Treatment of Plaintiff's Fracture

         On May 27, plaintiff was seen in health services again with complaints about his hand. He was given more ibuprofen and tylenol, despite stating that medication was ineffective. Health services staff then contacted defendant Hayward, the advanced care provider on staff that day, about plaintiff's continued complaints of pain and swelling in his hand. That same day, Hayward ordered an x-ray of plaintiff's hand. The x-ray showed that plaintiff had a proximal third metacarpal acute fracture, minimally displaced.

         The next day, May 28, defendant Hayward retrieved plaintiff from a family visit and brought him to the health services unit, believing that plaintiff's medical needs were sufficiently urgent that she did not want to delay his medical care. Hayward told plaintiff about the x-ray results and the importance of treating his fracture. In particular, Hayward told plaintiff that callous formation begins quickly when fractures start to heal, so permanent damage can occur if the fracture is not immobilized. (Plaintiff says Hayward also told him that he was at risk of permanent damage because his fractured hand had not been protected ...

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