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Drinkwater v. Larson

United States District Court, W.D. Wisconsin

April 5, 2019




         This court previously granted pro se plaintiff Dale Drinkwater leave to proceed under 42 U.S.C. § 1983, on his Eighth Amendment claims of deliberate indifference and Wisconsin common law negligence against health care professionals working for the Wisconsin Department of Corrections (“DOC”). Specifically, Drinkwater claims that while he was incarcerated at various times between 2011 and 2015, the defendants, Drs. Larson, Burnett, Hoftiezer, and Springs, and Nurses Bellin and Moerchen, failed to take reasonable steps in response to his need for hip surgery during that time frame. Now before the court is defendants' motion for summary judgment (dkt. #55), along with Drinkwater's requests for assistance in recruiting counsel (dkt. ##46, 53, 64, 70). Since the evidence of record does not support a reasonable finding that any of the defendants acted with deliberate indifference or negligence, the court will grant defendants' motion and deny Drinkwater's motions as moot.


         A. Parties

         Although the events comprising his claims took place while he was incarcerated at multiple DOC institutions between May 2010 and 2015, Drinkwater is no longer incarcerated. Defendants include: Dr. Larson, who was working in the Health Services Unit (“HSU”) at Fox Lake Correctional Institution (“FLCI”) during the relevant time period; Dr. Burnette, a DOC employee who handled a request for a referral to an out-of-contract facility; Dr. Hoftiezer, who treated Drinkwater while he was housed at Dodge Correctional Institution (“Dodge”); Dr. Springs, who treated Drinkwater when he was housed at Redgranite Correctional Institution (“Redgranite”); and registered nurses Bellin and Moerchen, who also treated Drinkwater at Redgranite.

         B. Drinkwater's treatment from Dr. Larson between May 2010 and 2011

         While Drinkwater's claims in this lawsuit focus on events beginning in May of 2010, his earlier medical treatment provides context. Drinkwater had gone through hip replacements in the early 1990s, but he was experiencing ongoing pain. By the time he arrived at FLCI in October of 2009, his hips were in such a bad state that he could no longer walk without crutches. As a result, staff promptly placed him on a chronic pain management plan for bilateral hip pain. Indeed, between his arrival at and release from FLCI, Drinkwater had seven, internal examinations for chronic pain management: November 13, 2009; February 24, 2010; May 27, 2010; June 18, 2010; September 16, 2010; January 19, 2011; and June 2, 2011. FLCI also arranged for several, off-site medical exams and procedures during this same time frame. In addition, Drinkwater was seen by off-site specialists to consider whether Drinkwater's hip condition warranted surgery.

         During the November 13, 2009, visit, a nurse saw Drinkwater for concerns about how to manage his pain, hepatitis C and sleep apnea. The nurse also noted that Drinkwater had an upcoming referral with a University of Wisconsin (“UW”) orthopedic surgeon for probable hip surgery. At that time, Drinkwater had the following indefinite medical restrictions: no kneeling, low bunk, no floor or boat placement, and first floor placement only.[2]

         Drinkwater's first UW appointment took place on or around December 17, 2009. Drinkwater met with Dr. Illgen, who had examined Drinkwater previously. Dr. Illgen's treatment note dated December 17, 2009, reflects agreement that Drinkwater may need surgical intervention, but questions whether it was appropriate at that time:

The difficult problem in this 46-year-old patient is when to proceed with revision surgery. In my opinion although there is significant retroacetabular lysis and polyethylene wear, I do not see definitive evidence for mechanical loosening of the acetabular component. Short of this, I believe that the decision to proceed with revision surgery is one of clinical judgment. Although there may be orthopedic surgeons who review his history, physical examination, and clinical radiographs and recommend revision surgery due to the retroacetabular osteolysis and possibility of reintroducing cross-linked polyethylene, I do not feel this is the case at the present time. I recognize that this is a judgment decision and at the age 46 one could come to a different conclusion. My concern is that his risk of complication is substantial . . . . I do not think that this patient fully understands the complex nature of what revision surgery would entail. There is clearly a difference in opinion regarding the physician in Green Bay. Specifically, he saw Dr. Grossman who felt revision surgery was indicated, but by his note, he was not qualified to actually perform the surgery. . . . We would simply suggest that the complex nature of this patient's problem and the potential for serious complications with revision surgery in my opinion is only warranted if there is definitive evidence for mechanical loosening of the acetabular component or complete wear through the polyethylene liner or instability resulting in frank dislocation.

(Pl. Discovery Ex. (dkt. #65-2) at 18-19.)

         On January 6, 2010, a nurse practitioner prescribed Drinkwater 5 mg of methadone to be taken by mouth two times a day, to treat his pain. The nurse practitioner also instructed staff to follow up with UW Orthopedics regarding a second opinion by January 20, 2010, which was done. On January 15, 2010, Drinkwater was measured and fitted for crutches and allowed to use a wheelchair for distance.

         On February 23, 2010, Drinkwater refused to go to his appointment with the UW orthopedic surgeon and signed a refusal form. (Def. Ex. 500 (dkt. #58-1) at 4.) Drinkwater does not deny that the refused to see the surgeon that day, but emphasizes that he did so out of skepticism given Dr. Illgen's hesitance to recommend surgery at that point.

         On May 24, 2010, Drinkwater reported falling while taking a shower. Because he was having trouble breathing, Drinkwater was taken to Waupun Memorial Hospital (“WMH”), where he stayed three days and underwent x-rays and received treatment. WMH emergency department physician, Farhat Khan, assessed Drinkwater and diagnosed him with a left hip contusion. Although Drinkwater would dispute it, Dr. Khan concluded that Drinkwater's x-ray did not differ from his x-ray from the prior year. (See Ex. 500 (dkt. #58-1) at 94-98, 103.)[3] In any event, it is undisputed that Dr. Khan spoke with Dr. Grossman at WMH and a UW orthopedic surgeon, who collectively determined that a transfer to UW was unnecessary because Drinkwater had not suffered an acute fracture. Dr. Khan further recommended Drinkwater follow-up with the UW surgeon who Drinkwater had seen previously, Dr. Illgen.

         However, Drinkwater again declined to see a UW orthopedic surgeon, or at the very least, to see Dr. Illgen. Dr. Khan noted that interaction as follows:

When this was discussed with patient, he absolutely declines to see any of the UW orthopedic surgeons, also does not want to go back as he claims he is unable to move and he has crutches at the correctional facility . . . . So case was again discussed with Dr. Grossman and it was decided to admit him to medical service on DOC for pain management. Dr. Grossman will see him as a consultant on Wednesday and then we will try to arrange a special orthopedic care for him at Medical College of Wisconsin or at Mayo Clinic. Patient agrees with that plan.

(Ex. 500 (dkt. #58-1) at 97-98.) Drinkwater insists that he was willing to see other UW orthopedic surgeons, just not Dr. Illgen. However, there is no evidence that he made this clear to Dr. Kahn, nor to any of the DOC defendants.

         On May 26, 2010, Dr. Grossman met with Drinkwater again for a follow up appointment. In Dr. Grossman's note, he recounted having previously seen Drinkwater and reviewed his x-rays in 2009, as well as his previous recommendation that he see a hip specialist. Dr. Grossman further noted that Drinkwater was seen by UW, but UW neither recommended nor offered revision surgery as an option at that time. Dr. Grossman then noted:

As previously, these problems are difficult to deal with. Expertise in management of these types of difficulties resides at tertiary or quaternary level referral centers. I will check with the department of corrections physicians as to what options we have. I think that, in the short run, pain medication, wheelchair ambulation is about all that we can offer at this point.

(Ex. 500 (dkt. #58-1) at 110-11.) Dr. Grossman also suggested that because Drinkwater did not want to see a UW specialist, he should see a specialist at Froedtert or Mayo clinic as soon as possible.[4]

         Upon his return to FLCI, Dr. Larson saw Drinkwater almost immediately on May 27, and again on June 2, 2010. On June 2 in particular, Dr. Larson and Drinkwater discussed whether he wanted to pursue surgery. At that time, Drinkwater indicated he wanted time to consider waiting for surgery until he was out of prison.[5]

         Dr. Larson saw Drinkwater once again on June 18, 2010. Drinkwater did not report any increased pain, and Dr. Larson observed no change in his functional capacity. On this occasion, however, Drinkwater expressed interest in undergoing surgery at a facility other than UW before his release. Dr. Larson heeded this request, preparing a request for hip removal and replacement at Mayo or Froedtert as follows:

46 yo familiar to Dr. Hoftiezer and Burnett through recent discussions. Has bilateral hip prostheses with osteolysis and left pelvic discontinuity. Had been working with UW Ortho for some time, but is currently at odds with his orthopedist there over his care plan. From what Dr. Hoftiezer and the patient have briefed me on, UW ortho is of the opinion that he will need revision of his hip joints eventually, but are not recommending it yet. Patient has been refusing to return to UW ortho for his follow-ups because he doesn't believe they want to fix him as quickly as he wants to be fixed (his [maximum release date] is in about 15 months). He had a recent fall and hip injury and was seen by Dr. Grossman at WMH for it. He [Grossman] suggested that he get his reconstructive hipwork at Froedtert or the Mayo Clinic if he won't return to UW and was concerned his long-term outcome might not be as good if he continued to delay. Grossman contacted Hoftiezer to see if it was possible to send him somewhere besides UW. UW reviewed the patient's recent ER x-rays from his WMH stay, and didn't feel the findings on x-ray warranted urgent intervention. He was offered follow up then, but the patient continued to refuse. Since his arrival at FLCI he has been managing his ADLs independently on Methadone for pain and the use of the wheelchair and crutches. See[n] again today in HSU at FLCI. He remains conflicted about his care plan but had previously admitted that his “strategy” all along was to “try and ride it out” and avoid submitting to any ortho surgeries until he got released and could seek his care at a facility of his choosing. However, today he remains conflicted and implied he would go somewhere other than UW to consider hip surgery before his release if it were offered. Request permission to sen[d] him to Mayo Clinic or Froedtert for another opinion and possible surgery.

(Ex. 500 (dkt. #58-1) at 114-15.)

         Because the request required medical review, DOC's regular reviewer, James LaBelle, RN, referred Dr. Larson's request out for “Secondary Medical.” In that capacity, Dr. Burnett received the request and declined to approve it the same day. (Id.) According to defendants, the DOC typically cannot use Mayo or Froedtert because the DOC is under contract with UW; the only exception being when a UW physician concludes that he or she cannot actually perform the requested medical intervention. (Spring Decl. (dkt. #63) ¶ 30.)

         After learning his request was denied, Drinkwater submitted a request to correct his medical records, in which he wrote the “only” thing he would not allow would be his “surgery done by Dr. Illgen, ” repeating his request to see a doctor from Mayo or Froedtert, but adding “I'm not refusing any and all UWM treatment!” (Pl. Ex. (dkt. #3) at 11.) On July 15, 2010, Dr. Larson denied his request to change the content of this, noting that Drinkwater's record was accurate and complete. (Id.)

         Dr. Larson next saw Drinkwater again on September 16, 2010, for chronic pain management. At that time Drinkwater did not report any changes in functional status or intensity or character of pain. Accordingly, Dr. Larson continued all special needs and conservative coping measures, and he ordered a follow-up in 3-4 months. Dr. Larson also saw Drinkwater on January 19, 2011, once again for chronic pain management. Drinkwater reported no status changes, other than that he voluntarily weaned his methadone down to 10 mg once a day for five days per week, and he was taking his usual dose two times daily the other two days. Drinkwater nevertheless requested that Dr. Larson not change his dosage or care plan, a request Larson heeded. Dr. Larson again ordered follow-up in 3-4 months.

         On June 2, 2011, Dr. Larson saw Drinkwater for the last time. While Drinkwater stated that his function had not improved, Dr. Larson observed him independently transfer and ambulate on one crutch (a fact Drinkwater does not dispute). Ultimately, Drinkwater refused to let Dr. Larson examine him. Instead, he complained about his care and left abruptly. Accordingly, Dr. Larson maintained his methadone dosage, again ordering follow-up for four months. Dr. Larson did not see Drinkwater again because he was released from DOC custody in September of 2011.

         C. Drinkwater's out-of-custody medical care between September 2011 and January 2012

         After his release from prison, Drinkwater he saw a physician on his own at the Mayo Clinic. Dr. Daniel Berry at Mayo opined that Drinkwater would likely benefit from a custom triflange-type component for reconstruction of his left acetabulum. However, the surgery required some lead time, with Drinkwater undergoing a CT scan and surgery scheduled six weeks later. Dr. Berry's examination of Drinkwater in June of 2012 included the following contemporaneous note:

Mr. Drinkwater is seen in followup today. We have talked about the status of further evaluation for a triflange implant. He understands that computer models have been made, that a plastic model is being made, and that at some point we would need to make a decision about whether to proceed to fabricating an actual implant. He understands there are major economic implications involved in this and that we would not fabricate an implant until we were fairly confident that he will be going ahead with surgery. He understands that we cannot make a decision to go ahead with surgery until such time as we are confident that he has been able to stop smoking, as I think if he is not able to stop smoking the chances of surgery being successful are dramatically reduced. In those circumstances, I would be concerned that the risk/benefit profile would not be in his favor. He seems to understand this logic.

(Ex. 500 (dkt. #58-1) at 142.)

         On August 30, 2012, Drinkwater went to the Mayo Clinic again. Drinkwater had not quit smoking, and thus was not recommended to undergo the triflange implant. Instead, Drinkwater wanted to proceed with resection arthroplasty. Dr. Berry noted the ...

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