United States District Court, W.D. Wisconsin
MUSTAFA-EL K.A. AJALA, formerly known as DENNIS E. JONES-EL, Plaintiff,
UW HOSPITAL AND CLINICS, SUTCHIN PATEL, BURTON COX, and SRIHARAN SIVALINGAM, Defendants.
OPINION AND ORDER
BARBARA B. CRABB, DISTRICT JUDGE
plaintiff and prisoner Mustafa-El Ajala is proceeding on
claims that health care staff at Wisconsin Secure Program
Facility and University of Wisconsin Hospital and Clinics
failed to provide him adequate treatment for his
hypercalcemia and hyperparathyroidism, in violation of both
the Eighth Amendment and state law. Now before the court are
motions for summary judgment filed by University of Wisconsin
Hospital and Clinics, dkt. #81, and the state defendants
(Sutchin Patel, Burton Cox and Sriharan Sivalingam), dkt.
#73. For the reasons set out below, I will grant both
before the court are plaintiff's motions for an order
compelling discovery from the state defendants (Sutchin
Patel, Burton Cox and Sriharan Sivalingam) and for sanctions
against them, dkt. #66, motion for default judgment, dkt.
#95, and motion requesting permission to add citations to his
summary judgment filings, dkt. #105. I will deny
plaintiff's motions to compel, for sanctions and for
default judgment, but will grant plaintiff's motion to
add citations to his summary judgment filings.
the parties' proposed findings of facts and responses, I
find the following facts to be material and undisputed unless
Mustafa-El Ajala was incarcerated at Wisconsin Secure Program
Facility during the times relevant to this lawsuit. Defendant
Burton Cox was a doctor at the facility, and was
plaintiff's treating physician from January 2003 to May
2005, and again from February 2007 to November 2010.
Defendant Sutchin Patel was a urologist, employed by
University of Wisconsin School of Medicine and Public Health.
Defendant Sriharan Sivalingam was a urology fellow in
endourology and minimally invasive surgery, and a clinical
instructor for University of Wisconsin School of Medicine and
Public Health. Plaintiff was treated by Patel and Sivalingam
at defendant University of Wisconsin Hospitals and Clinics.
(Plaintiff says that Patel and Sivalingam were employees and
agents of University of Wisconsin Hospitals and Clinics, but
he has cited no evidence to support this.)
Plaintiff's Medical Treatment
began experiencing frequent and painful urination in
approximately 2001. He also had high calcium levels in his
blood starting in 2001 and blood in his urine in 2002. From
2003 to 2007, plaintiff had high calcium levels, occasional
blood in his urine and frequent urination. Plaintiff asked
defendant Cox to diagnose his condition and provide treatment
for it. In 2010, Cox referred plaintiff to the UW Urology
Clinic for treatment.
saw defendant Dr. Patel at the UW Urology Clinic for the
first time on April 30, 2010. Plaintiff had been given a
diagnosis of overactive bladder and was taking lisinopril,
vitamin D, hydrochlorothiazide, calcium carbonate, naproxen
and oxybutynin. When evaluating a patient with urinary
voiding symptoms, Patel's practice is to discuss a
patient's symptoms and complete a urinalysis. Patel
discussed plaintiff's symptoms with him and conducted a
urinalysis, which showed “unremarkable” results.
Patel also checked a post-void residual bladder scan, which
showed that plaintiff was emptying his bladder adequately.
Patel recommended a cystoscopy, which is a procedure to
examine the lining of the bladder, so that he could evaluate
plaintiff's urethra, prostate and bladder, and determine
a possible cause for plaintiff's symptoms, such as a
urethral stricture or bladder tumor. There is no mention in
Patel's notes that plaintiff was concerned with kidney
stones or high calcium levels in his blood at this visit.
Dkt. #79-1 at 3.
saw Patel again on May 14, 2010. Plaintiff reported the same
symptoms of urinary frequency and urgency. Id. at 9.
Patel performed a cystoscopy, but he found no evidence of any
stricture, lesions or tumors. Because these was no evidence
of bladder outlet obstruction, Patel recommended that
plaintiff stop taking Flomax and Doxazosin, which he had been
taking to treat a potentially enlarged prostate. Patel
recommended that plaintiff start taking Ditropan XL, which is
a medication used to treat overactive bladder symptoms
(primarily urinary frequency and urinary urgency). When
plaintiff returned to the prison, defendant Cox requested
Ditropan XL for plaintiff from the Bureau of Health Services.
plaintiff's third appointment with defendant Patel on
August 20, 2010, plaintiff reported continued urinary
frequency and urgency, dry mouth, hot flashes and occasional
flank pain on his left side. He denied having urinary
incontinence and told Patel that he did not have any history
of having kidney stones. Id. at 13. Plaintiff was
taking Ditropan three times a day, and Patel concluded that
some of plaintiff's symptoms were likely side effects of
that medication. Patel recommended that plaintiff change his
medication to an extended release medication, such as
Ditropan XL or Detrol, which would have fewer side effects.
Patel conducted another urinalysis, which indicated that
plaintiff did not have a urinary tract infection. The
urinalysis showed “occasional calcium oxalate
crystals.” (Calcium oxalate crystals are the most
common cause of kidney stones. Calcium oxalate crystals may
be caused by dietary choices, but also may be caused by
overactive parathyroid glands (hyperparathyroidism)). Because
plaintiff had crystals and flank pain, Patel ordered a
CT-scan to evaluate plaintiff's kidneys for possible
hydronephrosis (swelling of the kidney due to a blockage in
the ureter) and possible nephrolithiasis (kidney stones).
saw defendant Patel again on November 12, 2010, and
complained of lower back and left hip pain. Id. at
18. He denied any right or left flank pain. Plaintiff told
Patel that his main symptoms were urinary urgency and
frequency. Plaintiff had not yet received the Ditropan XL or
Detrol, and Patel recommended that plaintiff start taking one
of those medications as soon as he could to address his
overactive bladder symptoms. Patel recommended that plaintiff
follow up with the UW Urology Clinic after he had started one
of those medications.
also discussed the results of the CT scan with plaintiff. The
scan showed no evidence of infection, renal masses or
hydronephrosis, but showed several very small kidney stones.
Id. at 425. The stones were not obstructing the
kidney and were asymptomatic, so Patel did not recommend any
surgical intervention. Patel recommended that plaintiff
increase his oral citrate intake with lemonade or lime juice
and decrease his salt intake. Id. at 18. There is no
indication in the notes that Patel thought plaintiff's
kidney stones were related to his lower urinary tract
kidney stones by themselves do not cause pain, so patients
can have a stone in their kidney for many years without
symptoms. The stone must be blocking urine flow to cause
pain. An obstructing stone can cause the kidney to swell
(hydronephrosis). Patel generally recommends surgery if a
patient has an obstructing stone or a large stone with a low
chance of spontaneous passage. Kidney stones that are not
obstructing should be monitored every couple of years to
assess interval growth and the need for intervention.
Depending on the patient and underlying causes of the kidney
stones, calcium-based kidney stones may be prevented through
dietary modifications, medications and surgical management of
the parathyroid glands.
plaintiff's appointment with Patel, defendant Cox did not
prescribe oral citrate for plaintiff. (According to Cox, he
thought plaintiff could purchase lemonade from the canteen,
but plaintiff says he told Cox that he could not purchase it
February 9, 2011, plaintiff had his blood drawn in the health
services unit for lab work. The results showed a calcium
level of 12 mg/dL (milligrams per deciliter), which is above
normal levels. Dkt. #79-2 at 80. Cox ordered that the labs be
repeated to check plaintiff's calcium levels again.
Id. at 3. On February 16, 2011, plaintiff's lab
results showed a calcium level of11.4 mg/dL. Id. at
79. On March 2, 2011, Cox ordered that plaintiff's blood
be drawn again to check his calcium and parathyroid hormone
levels. Id. at 3. The results showed calcium at 11.3
mg/dL, which was down from previous testing, and parathyroid
hormone at 59.5 pg/mL, which is within the normal range.
Id. at 78. (Records from 2009 and 2010 show calcium
levels between 11 and 11.8 mg/dL. Id. at 84, 93,
saw Dr. Patel again on April 29, 2011. Plaintiff reported
that he had started taking Detrol LA, that the frequency and
urgency of his urination had decreased by half and he was
able to sleep through the night. Dkt. #79-1 at 24. He also
denied any incontinence, painful urination, blood in his
urine, abdominal pain or flank pain. (Plaintiff says he
reported to Patel that his frequent and urgent need to
urinate had “slightly” decreased, but that it was
still occurring and had been ongoing for a decade.) Patel
noted that plaintiff's overactive bladder appeared to be
well controlled by Detrol LA. Patel ordered a uroflow test
and a follow up appointment in one year.
to Patel, he did not think that plaintiff's symptoms
warranted the work-up for the diagnosis of hypercalcemia or
hyperparathyroidism. “Hypercalcemia” is the
presence of an excess of calcium in the blood.
“Hyperparathyroidism” is the presence of excess
parathyroid hormone in the body, causing an increase in serum
calcium, a decrease in inorganic phosphorus, loss of calcium
from bone and renal damage with frequent kidney-stone
formation. Hyperparathyroidism can cause hypercalcemia.
Symptoms of hypercalcemia caused by hyperparathyroidism can
be mild to severe, and can include nausea, vomiting,
constipation, kidney stones, fatigue, weakness, confusion,
frequent urination, headaches, abdominal pain, sensory
deficits, obtundation and coma. Patients with mild and
moderate hypercalcemia (calcium in their blood that is less
than 14 mg/dL) may not need immediate treatment, but rather a
methodical evaluation of the causes and effects of their
condition. Patients with calcium higher than 14 mg/dL require
thought plaintiff's primary symptom was urinary
frequency, which has many common causes, and that plaintiff
had no other obvious symptoms of hypercalcemia. The calcium
oxalate crystals in plaintiff's urine had other potential
causes, including diet. (Plaintiff says that his medical
records show that he had experienced other symptoms of
hypercalcemia, including high calcium levels in his blood,
high blood pressure, an abnormal heart rhythm, abdominal
pain, blood in his urine, kidney stones that were 100 percent
calcium, calcification of his prostate and coronary artery
and fatigue. However, he does not point to any evidence
suggesting that he was experiencing these symptoms at the
time of his appointments with Patel or that Patel was aware
of these symptoms.)
August 22, 2011, plaintiff was taken to the emergency room
because he was experiencing blood in his urine and pain. A CT
scan showed that plaintiff had developed new kidney stones
since his 2010 scan. He had a 3 millimeter stone and two very
small stones in his left kidney and a 2 millimeter stone in
his left ureter. There were no stones in his right kidney.
Dkt. #79-2 at 161. He was given Vicodin and sent back to the
prison to pass the stones. Id. at 41. When he
returned, plaintiff asked Cox to treat his high calcium
levels because they were causing his stones.
saw defendant Sivalingam at UW Urology for the first time on
April 27, 2012. Dkt. #79-1 at 29. Plaintiff continued to
complain of urinary urgency and frequency, though he reported
that his urine stream was good and that his urinary frequency
had declined since taking Detrol LA. He stated that he had
been drinking lots of fluids to try to prevent the formation
of new kidney stones. Plaintiff also told Sivalingam ...