Demeo v. Koenigsmann

FRANK A. DeMEO, Plaintiff, v. CARL J. KOENIGSMANN, MD, Deputy Commissioner,Chief Medical Officer, N.Y.S. Department of Correction and Community Supervision,in an official capacity, et al., Defendants.

11 Civ. 7099 (HBP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 7, 2017

OPINION AND ORDER

PITMAN, United States Magistrate Judge:

I. Introduction

Plaintiff Frank A. DeMeo, a former inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), proceeding pro se, commenced this action against defendants Drs. Carl J. Koenigsmann, Timothy Whalen, Mervat Makram, Jonathan Holder and Frank Lancellotti, pursuant to 42 U.S.C. § 1983, alleging that defendants were deliberately indifferent to injuries to his right shoulder and biceps muscle that were sustained during his incarceration at Woodbourne Correctional Facility ("Woodbourne"). Plaintiff also asserts state law claims for medical malpractice and negligence against defendants. Plaintiff seeks damages, as well as declaratory and injunctive relief. By notice of motion dated January 28, 2016, Drs. Koenigsmann, Whalen and Makram move for summary judgment (Notice of Motion, dated Jan. 28, 2016 (Docket Item ("D.I.") 91).

The parties have consented to my exercising plenary jurisdiction over this matter pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, defendants' motion for summary judgment is granted and the complaint is dismissed.

II. Facts

A. Background

Plaintiff had been in DOCCS custody since 1984 (Declaration of Steven N. Schulman, Esq., dated Jan. 28, 2016 (D.I. 96) ("Schulman Decl."), Ex. D, at 13:17-13:23). He arrived at Woodbourne in June 2007 (Schulman Decl., Ex. D, at 15:5-15:9).

Plaintiff had surgery on his shoulders before the alleged events that give rise to this action. In 2003, surgery was performed on his left shoulder to repair a torn rotator cuff (Schulman Decl., Ex. D, at 12:5-12:9). In 2005, a cyst was surgically removed from plaintiff's right shoulder (Schulman Decl., Ex. D, at 12:5-12:11). In 2007, plaintiff's right rotatorcuff was surgically repaired (Schulman Decl., Ex. D, at 12:5-12:12). As a result of the 2003 and 2007 surgeries, plaintiff has metallic screws in both shoulders (Schulman Decl., Ex. D, at 12:20-12:25, 34:13-34:17 & Ex. F, at MED068-70).

B. The Injury

On October 13, 2010, plaintiff was working as a porter in Woodbourne's gym, storing dumbbells on their racks, when he "felt something pop" in his right arm (Schulman Decl., Ex. D, at 19:13-19:17). Prior to that injury, plaintiff had noticed a "clicking" in his right arm for weeks and "felt that something was going to happen" (Schulman Decl., Ex. D, at 25:23-26:4).

Plaintiff immediately reported his injury to a correction officer, who called the infirmary (Schulman Decl., Ex. D, at 19:18-19:20). The infirmary said that plaintiff's injury did not warrant an emergency sick call (Schulman Decl., Ex. D, at 19:21-19:25). After waiting a day or two to see how he felt, plaintiff signed up for regular sick call due to discomfort and a significant loss of strength in his right arm and shoulder (Schulman Decl., Ex. D, at 24:22-25:1).

C. The Diagnosis

Plaintiff was seen by a nurse at regular sick call on October 18, 2010; by that date, plaintiff's arm had turned black and blue (Schulman Decl., Ex. D, at 22:5-22:9, 25:2; Declaration of Dr. Mervat Makram, dated Jan. 14, 2016 (D.I. 95) ("Makram Decl."), Ex. A, at MED136). After noting a bruise on plaintiff's biceps and an "obvious deformity," the nurse referred plaintiff to a physician's assistant, Genevieve Switz, who saw plaintiff the same day (Schulman Decl., Ex. D, at 25:2-25:4; Makram Decl. ¶ 7 & Ex. A, at MED136). Switz also noted a bruise on the biceps, but reported that plaintiff had "no pain" and "no loss of strength" (Makram Decl., Ex. A, at MED136). Switz diagnosed plaintiff with a "possible rupture of the proximal biceps tendon," i.e., a rupture at the shoulder end of the biceps (Makram Decl. ¶ 7 & Ex. A, at MED136). Switz requested a referral for magnetic resonance imaging ("MRI"), directed plaintiff to wear a sling until the MRI report was available and restricted plaintiff's activities (Makram Decl., Ex. A, at MED136). Plaintiff wore the sling for approximately one week (Schulman Decl., Ex. D, at 55:12-55:14).

An x-ray was also taken that same day (Schulman Decl., Ex. D, at 29:10-30:13). A report dated October 21, 2010 andreviewed by Dr. Makram on October 26, 2010 did not disclose a ruptured biceps or torn rotator cuff based on the x-ray (Makram Decl. ¶ 8 & Ex. B, at MED068). However, according to Dr. Makram, the lack of such findings was inconclusive because an MRI is more effective than an x-ray in revealing soft tissue injuries (Makram Decl. ¶ 8).

Approval for the MRI required analysis under DOCCS's "utilization review process" for specialist referrals (Schulman Decl., Ex. H; Makram Decl. ¶ 9). Switz and Dr. Lancellotti, plaintiff's primary care physician, initiated the utilization review process the same day that Switz saw plaintiff by electronically entering a request into DOCCS's computer system with an urgency level of "soon"; this designation meant that the MRI should be provided within two weeks (Makram Decl. ¶ 10 & Ex. B, at MED1821). Switz also noted that there were metal fragments in plaintiff's left shoulder (Makram Decl. ¶ 11 & Ex. B, at MED069). DOCCS's contracted utilization reviewer, APS,¹ reviewed the request that same day and determined to defer the decision pending more information (Makram Decl. ¶ 12 & Ex. B, at MED1822). Specifically, APS wanted to know whether any weakness or instability was noted on physical examination (Makram Decl. ¶ 12 & Ex.B, at MED1822). On October 21, 2010, Dr. Lancellotti informed APS that plaintiff had "bulging of biceps toward elbow on flexion; decreased motor ability to flex @ elbow; weakness of muscle[]distal [sic] to shoulder; large hematoma on flexor side of upper arm" (Makram Decl. ¶ 13 & Ex. B, at MED1822). Based on this information, on October 22, 2010, APS approved the MRI on a "soon" basis (Makram Decl. ¶ 13 & Ex. B, at MED1822).

The first radiologist contacted to conduct the MRI refused to do so because of the metal screws in plaintiff's shoulders; according to Dr. Makram, metallic objects in the body require special safety precautions and could adversely affect the images produced by the MRI (Makram Decl. ¶ 16). Accordingly, Dr. Makram spent several days trying to find a radiologist willing to conduct the MRI at a location suitable for a medium security inmate (Makram Decl. ¶ 16). Albany Medical Center agreed to perform the MRI, which took place on November 15, 2010 (Schulman Decl., Ex. D, at 36:20-36:21; Makram Decl. ¶¶ 16, 18).

Dr. Makram's only role concerning the MRI was finding a radiologist willing to perform it (Makram Decl. ¶ 17). At no point did Dr. Makram disapprove the MRI, nor was she involved in APS's request for more information (Makram Decl. ¶ 17).²

Dr. Whalen was not involved in approving the MRI (Makram Decl. ¶ 15). As Regional Medical Director, Dr. Whalen would not have been involved in the utilization review process unless APS preliminarily denied the request for an MRI, which did not occur here (Schulman Decl., Ex. H ¶ III.A.4; Makram Decl. ¶ 15).³

There is no evidence in the record indicating that Dr. Koenigsmann was involved in the approval of plaintiff's MRI. As Chief Medical Officer, Dr. Koenigsmann would not have ordinarily been involved in the approval of an injury-related MRI (Makram Decl. ¶ 15).

The MRI report, dated November 22, 2010, arrived at Woodbourne on November 29, 2010; Dr. Makram reviewed it on December 1, 2010 (Makram Decl. ¶ 18 & Ex. B, at MED1191). The report stated that plaintiff had a "full thickness retracted proximal biceps tendon rupture" with an approximately eight-centimeter distal retraction of the biceps tendon, "a large amount of surrounding fluid" and no evidence of muscle atrophy (Makram Decl., Ex. B, at MED1191). It also stated that plaintiff had a "full thickness re-tear of the supraspinatus tendon"⁴ (Makram Decl., Ex. B, at MED1191). Dr. Makram referred the report to Dr. Lancellotti (Makram Decl. ¶ 18).

Plaintiff met with Dr. Lancellotti on December 2, 2010 (Schulman Decl., Ex. D, at 42:7-42:14; Makram Decl., Ex. B, at MED090). Dr. Lancellotti informed plaintiff of the MRI resultsand requested a referral for plaintiff to see Dr. Holder, an orthopedic specialist, on a "soon" basis (Schulman Decl., Ex. D, at 44:10-44:19 & Ex. F, at MED090).

Plaintiff saw Dr. Holder on December 9, 2010, at which time Dr. Holder reviewed the MRI images (Schulman Decl., Ex. D, at 40:23-41:17, 44:20-44:22; Makram Decl., Ex. B, at MED090). Dr. Holder reported that an examination of plaintiff's right shoulder indicated that plaintiff had a full range of motion with no restrictions, "no impingement or O'Brien's,"⁵ no weakness on abduction or flexing and "[positive] Biceps Belly deformity"⁶ (Makram Decl., Ex. B, at MED090). He also noted that there was "[n]o clinical Rot[ator] Cuff tear-determined [and that no] orthopedic intervention [was warranted] at [that] time" (Makram Decl., Ex. B, at MED090). Dr. Holder opined that the MRI "reveal[ed] long head Biceps rupture -- supraspinatus tear," and he opined that plaintiff's right biceps was "rupture-chronic -- not surgically amenable for repair at this time" (Makram Decl.,Ex. B, at MED090).⁷ Dr. Lancellotti reviewed Dr. Holder's findings with plaintiff on December 23, 2010 (Schulman Decl., Ex. D, at 53:9-53:20; Makram Decl., Ex. A, at MED132).

D. Return to Activities

On December 31, 2010, plaintiff requested that medical restrictions that had been in place be lifted and that he be allowed to return to work (Schulman Decl., Ex. D, at 56:23-57:6; Makram Decl., Ex. B, at MED115). Dr. Lancellotti cleared plaintiff for "full duty" as a porter (Schulman Decl., Ex. D, at 57:19-58:12 & Ex. F, at MED103), although plaintiff...