Kerns v. United States

DONALD KERNS Reg. #27082-045 PLAINTIFF v. UNITED STATES OF AMERICA DEFENDANT

No. 2:18CV00086-KGB-JTR

United States District Court, E.D. Arkansas, Delta Division

April 9, 2021

RECOMMENDED DISPOSITION

This Recommended Disposition (“Recommendation”) has been sent to United States District Judge Kristine G. Baker. You may file written objections to all or part of the Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the date of this Recommendation. If you do not file objections, Judge Baker may adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may waive the right to appeal questions of fact.

I. Introduction

Plaintiff Donald Kerns (“Kerns”) filed this pro se Federal Tort Claims Act (“FTCA”) action alleging that he received negligent medical care while incarcerated in the Federal Correctional Complex in Forrest City, Arkansas (“FCC Forrest City”). Doc. 1; Doc 9.

Defendant filed a Motion for Summary Judgment, a Brief in Support, and a Statement of Undisputed Facts. Docs. 19, 20 &amp 21. Plaintiff responded (Docs. 27, 29, & 30) and Defendant replied. Doc. 28. For the following reasons, the Court recommends the Motion for Summary Judgment (Doc. 19) be GRANTED, and this case dismissed with prejudice.

Before reaching the merits of Defendant's Motion for Summary Judgment, ^[1]the Court will review the undisputed material facts relevant to Kerns' claims.

II. Facts^[2]

1. Plaintiff Donald Kerns is 56 years old. He was incarcerated in FCC Forrest City at the time he received allegedly negligent medical care. Doc. 20 at ¶ 1; Doc. 29 at ¶ 1.

2. Dr. Te Cora Ballom is the Regional Medical Director for the South Central Region of the BOP and currently serves as the Clinical Director for FCC Forrest City. Doc. 20 at ¶ 2. Kerns does not know Dr. Ballom and she does not know him personally. Doc. 27 at ¶ 2.

3. As part of her official duties, Dr. Ballom has access to Kerns' medical and treatment records, and the claims he raises in this action. Doc. 20 at ¶ 3.

4. On July 30, 2017, Kerns reported to sick call complaining of left shoulder pain, swelling in the area of his collar bone, and pain when he moved his shoulder. He reported the pain started a week earlier after he felt a “pop” while pulling himself up to the top bunk. Doc. 20 at ¶ 4; Doc. 29 at ¶ 4.

5. A left shoulder x-ray, on July 31, 2017, showed “[n]o radiographic evidence for acute fracture or joint space malalignment in the left shoulder.” The report indicated that, aside from minimal osteoarthritis, the x-ray was “unremarkable.” Doc. 20 at ¶ 5; Doc. 29 at ¶ 5.

6. Upon examination, the evaluating clinician noted mild swelling to the mid shaft of Kerns' left clavicle, tenderness, and decreased range of motion of the left shoulder due to pain, but no obvious deformity to the clavicle. The evaluating clinician prescribed Methyl Prednisone, 4 mg dose pack for pain and swelling, and gave Kerns instructions to rest from upper extremity exercise (pushups and pull ups) for two weeks. Doc. 20 at ¶ 5; Doc. 29 at ¶ 5.

7. On August 10, 2017, Kerns reported to Health Services complaining of sharp pain in his left clavicle. Doc. 20 at ¶ 6. According to Defendant, Kerns stated:

“I was doing wide armed pushups when [I] came back up it popped loud on the left side of collar bone and I collapsed on that side.” Doc. 20 at ¶ 6. Kerns denies making the statement. Doc. 29 at ¶ 6. He states pushups were impossible due to a previous wrist surgery. Doc. 27 at ¶ 6.^[3]

8. The treating clinician examined Kerns and found signs of possible fracture or dislocation to his left clavicle. Doc. 20 at ¶ 6. The clinician had Kerns transported to the local emergency room, where x-rays and/or other imaging was requested. Doc. 20 at ¶ 6.

9. At the emergency room, x-rays were negative for fracture. The hospital imaging report noted “[n]o fractures are seen. There is slight widening of the AC joint but no elevation of the clavicle. The adjacent left clavicle, left scapula and left ribs are unremarkable.” Doc. 20 at ¶ 8. The local hospital emergency department diagnosed the injury as a “shoulder sprain” and instructed Kerns to keep his left arm in a sling for 3 days and to apply ice. Doc. 20 at ¶ 8. Kerns neither admits nor denies what the August 10, 2017 x-rays revealed. Doc. 29 at ¶ 8.

10. Defendant states Kerns was given prescriptions for naproxen 500mg and tramadol 50mg, and he was instructed to apply ice to the shoulder and report to sick call as needed. Doc. 20 at ¶ 8. According to Kerns, he continued to take Tylenol #3 and ibuprofen (800mg) for his shoulder pain, and denies being prescribed naproxen or tramadol. Doc. 29 at ¶ 8.

11. On August 15, 2017, Kerns reported back to Health Services for a follow-up appointment. He reported the medications he was receiving (Tylenol #3 and ibuprofen) did not help much with his pain. Doc. 20 at ¶9. The clinician observed moderate swelling and tenderness to the mid shaft of the left clavicle, but no obvious deformity. Doc. 20 at ¶ 9.

12. According to Dr. Ballom, Dr. Obie, a Health Services provider, placed Kerns on prednisone for pain and swelling and renewed his prescription for Tylenol #3. Doc. 20 at ¶ 9. Kerns states his Tylenol #3 was not renewed, and he only received a prescription for Prednisone. Doc. 27 at ¶ 9. According to Kerns, Ms. Stiles took his arm sling, which resulted in overwhelming pain with arm movement. Doc. 27 at ¶ 9; Doc. 29 at ¶ 9.

13. According to Dr. Ballom, on September 21, 2017, Kerns' Tylenol #3 was discontinued because he had stopped reporting to pill line. Doc. 20 at ¶ 10. Kerns states he was taken off Tylenol #3 when Dr. Obie prescribed Prednisone. Doc. 27 at ¶ 10. Kerns alleges he stopped going to pill call because he was unable to dress or put on boots. Doc. 29 at ¶ 10.

14. On September 26, 2017, Health Services evaluated Kerns for a skin condition and a possible mass on his chest-wall. The clinician ordered a CT scan of soft tissue of the chest and requested that the CT scan include the left clavicle to evaluate a firm mass that had developed after the injury on August 10, 2017. Doc. 20 at ¶ 11.^[4] Kerns states it was swelling, not a mass, and that the swelling was present before August 10, 2017. Doc. 27 at ¶ 11; Doc. 29 at ¶ 11.

15. On October 16, 2017, Health Services ordered a follow-up x-ray of Kerns' left clavicle. The x-ray indicated “there is a new but subacute minimally displaced fracture with partial callus formation at the proximal third of the left clavicle. There is no joint space abnormality. Bone mineralization is normal” Comparing this film to the previous x-ray, the radiologist concluded that this was a new fracture that developed after July 31, 2017. Doc. 20 at ¶ 12; Doc. 29 at ¶ 12.

16. On October 18, 2017, the staff physician reviewed the x-ray and ordered an orthopedic consultation. Doc. 20 at ¶ 13; Doc. 29 at ¶ 13. The same day, a new prescription for Tylenol #3 was issued with a note to monitor Kerns' compliance with taking that medication. Doc. 20 at ¶ 14; Doc. 29 at ¶ 14.

17. On October 30, 2017, Kerns reported to sick call complaining of continued pain to his left clavicle and requested more pain medication. Kerns was provided with a copy of the x-ray of his left clavicle, taken on October 16, 2017. The Health Services provider explained to Kerns that the x-ray showed a new minimally displaced fracture with partial callus formation at the proximal third of his left clavicle. He was also informed of the pending orthopedic consult and told to follow-up at sick call as needed. Doc. 20 at ¶ 15; Doc. 29 at ¶ 15.

18. A CT scan was performed on December 22, 2017. It showed “[n]o acute fracture” but noted a “non-united comminuted fracture of the left clavicle is seen.” Doc. 20 at ¶ 16; Doc. 29 at ¶ 16.

19. On January 9, 2018, orthopedist Bret Sokoloff, MD (“Dr. Sokoloff”), evaluated Kerns and confirmed a “non-united comminuted fracture” to the “proximal left clavicle”^[5] After reviewing an x-ray of Kerns' left clavicle, Dr. Sokoloff found: “no dislocation, no tumor, alignment WNL [within normal limits], joint spaces well preserved, good bone quality, no loose bodies, no abnormal soft tissue findings, and fracture healing in satisfactory, alignment w/o significant change[, ] good callus formation” Dr. Sokoloff recommended bone growth stimulation treatment for Kerns' fractured left clavicle, to hold off on surgery, and follow-up within three months. Doc. 20 at ¶ 17; Doc. 20-1 at 92; Doc. 29 at ¶ 17.

20. On January 10, 2018, Kerns' Tylenol #3 prescription was “discontinued due to patient's non compliance.” Doc. 20 at ¶ 18; Doc. 29 at ¶ 18.

21. On January 18, 2018, Health Services clinical staff noted Dr. Sokoloffs recommendation that Kerns receive “bone stimulation inf [sic] incomplete union, f/u 3 months.” A consultation request was ordered, on January 18, 2018, for a follow up appointment with Dr. Sokoloff. Doc. 20 at ¶ 19; Doc. 29 at ¶ 19.

22. On February 8, 2018, Kerns reported to Health Services for a follow-up visit. The treating clinician noted that Dr. Sokoloff had recommended that Kerns receive bone stimulator treatments, but not surgery. Doc. 20 at ¶ 20; Doc. 29 at ¶ 20.

23. On February 20, 2018, Kerns reported for sick call complaining of a “popping noise” and shoulder pain with movement and when sleeping on left his side. An examination by the medical provider showed localized swelling to the left clavicle but no change in prior exams. The medical provider noted that Kerns was scheduled for a follow up with Dr Sokoloff and issued Kerns a lower bunk pass. Doc 20 at...