Karov v. Correct Care Solutions, Inc., No. 532-9-13 Wncv (Teachout, J., August 3, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 532-9-13 Wncv

THOMAS KAROV
    Plaintiff

           v.

CORRECT CARE SOLUTIONS, INC., et al.
    Defendants

                                                     DECISION
                                      Defendants’ Motion for Summary Judgment

        Plaintiff Thomas Karov had hernia-related abdominal surgery while incarcerated at the
Northern State Correctional Facility in Newport. He alleges that the medical staff at the Facility
did not provide him with his pain medication in a timely manner during the first three days
following surgery. He also claims that over the course of his imprisonment (in Newport and
elsewhere) he at times did not get prompt refills of other unrelated prescriptions. In this case, he
claims that these circumstances rise to the level of medical malpractice and cruel and unusual
punishment under the Eighth Amendment. Defendants include Correct Care Solutions, Inc., the
contractor responsible for medical care at the Facility at the time, and two of its employees: Dr.
Garry Weischedel and Nurse Samantha Lapage.1

        Defendants have filed a motion for summary judgment. They argue that the medical
malpractice claim requires the support of expert testimony and Mr. Karov has failed to come
forward with any. They also argue that Mr. Karov’s evidence of deliberate indifference is
insufficient to establish a triable issue on the Eighth Amendment claim.

           Facts regarding pain relief following surgery

       The facts, as alleged by Mr. Karov, are materially inconsistent with parts of the progress
notes kept by his medical providers and are supported principally by his testimony alone. For
purposes of summary judgment, the court assumes that a jury could find the facts as represented
by Mr. Karov.

        Mr. Karov’s surgery (which went well) occurred on the morning of May 5, 2010 at a
hospital that is not part of the prison. Following surgery, he was given a dose of Oxycodone, a
narcotic, for pain while still at the hospital. He was discharged back to the prison with the
instruction that he could have the next dose in four hours (approximately 2:30 p.m.) as needed.

           According to his allegations, at 2:30 p.m., in the prison infirmary, he began to complain

1
 Mr. Karov also named another nurse, Colleen Jelicka, as a defendant. Mr. Karov never filed any proof of service
on Ms. Jelicka and Ms. Jelicka has never made an appearance in this case.
that he needed his next dose of pain medication. The nursing staff indicated that they needed to
await a prescription from the Facility doctor and that any instructions regarding pain medication
from the hospital surgeon were not “valid.” The nurses made clear that they were in touch with
the doctor about the need for pain medication. Eventually, the Facility doctor wrote a
prescription for Tramadol, a non-narcotic pain reliever. Mr. Karov received the first dose of it at
7:44 p.m. Thereafter, he received regular doses through May 6.

        At the morning “med pass” on May 7 there was confusion about his prescription. One
nurse was ready to dispense the Tramadol. Another believed that the prescription did not permit
it. Mr. Karov did not get that dose of Tramadol at that time and filed an emergency grievance.
The findings in the grievance denial explain as follows:

       The patient was ordered Tramadol 50mg 1 or 2 tablets to be given every 4 hours
       as needed not to exceed 400 mg/day. The order was written incorrectly in the
       MAR [medication administration record] and the patient did not receive his 0600
       dose. The nursing staff spoke with the physician received [sic] an order for
       Ibuprofen for 1100. When patient arrived for the 1100 med pass at approximately
       1145 he was told about the ibuprofen but also told that he could return in 30
       minutes for his Tramadol. Pt refused the Ibuprofen and stated he would be
       contacting his attorney. The patient did not return for his medication as
       requested/suggested by the nursing staff at 1215. The patient did receive the 1600
       and 2000 doses.

VT DOC Grievance Form #3 (dated May 12, 2010) (emphasis added). Mr. Karov alleges that he
did not return for the Tramadol at 12:15 p.m. because he was under the impression that he
needed to be called specially by medical staff and he never received that call. He did not get his
first dose on May 7 until 4:00 p.m. Thereafter, he received his doses as needed and prescribed.

       Facts regarding refills of longer term medications

        Mr. Karov generally alleges that, throughout his incarceration, regardless where he was
housed, there were times when he experienced problems getting refills on his medications taken
for conditions unrelated to the abdominal surgery. It appears that Mr. Karov took several of
these medications as needed rather than on a predictable schedule. At the time, he was unaware
that prescriptions at the facility could not be written for longer than 90 days and would be
discontinued if unused for a certain amount of time. His confusion over these matters appears to
have contributed to those occasions in which Mr. Karov should have had a medication available
but did not.

       The culmination of one of his relevant grievances was a letter from the Health Services
Director:

       My office received your Appeal petition outlining your dissatisfaction with the
       medical service process of reordering medications. From your state, it appears
       that your medication ran out and was not available. You also state that it was
       discontinued.

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         My office has spoken with medical services about the need to reorder medication
         in a timely fashion and that self-carry inhalers must be available when an
         individual needs a replacement. I have copies [sic] this letter to key medical
         services managers so that [sic] can put into place procedures to prevent this
         problem from reoccurring.

Letter from Delores Burroughs–Biron to Thomas Karov (dated April 9, 2010).

         Medical malpractice

       The Court has described the elements of a medical malpractice claim and the need for
supporting expert testimony as follows:

                 The burden is on the plaintiff in a medical malpractice action to prove
         both that the defendant physician was negligent and that the plaintiff’s injuries
         were proximately caused by that negligent conduct. Normally this burden is only
         satisfied when the plaintiff produces expert medical testimony setting forth: (1)
         the proper standard of medical skill and care; (2) that the defendant’s conduct
         departed from that standard; and (3) that this conduct was the proximate cause of
         the harm complained of. An exception to this general rule exists in cases where
         the violation of the standard of medical care is “so apparent to be comprehensible
         to the lay trier of fact.”

Senesac v. Associates in Obstetrics and Gynecology, 141 Vt. 310, 313 (1982) (citations omitted);
see also 12 V.S.A. § 1908. Mr. Karov has come forward with no such expert testimony in this
case and did not file a 12 V.S.A. § 1042 certification of merit.2 Defendants argue that expert
support is necessary.

                  Post-surgery pain relief

       Mr. Karov’s position is understandable. In his view, it is obvious that a patient who
undergoes abdominal surgery such as he did is going to experience pain and need pain
medication. It is all the more obviously so when that patient complains that he is in pain and still
does not get pain medication. His malpractice claim is that it was obvious that he needed
medication and it took too long to get it. No expert is necessary, he argues, for a jury to
understand that.

        The problem with Mr. Karov’s argument, however, is that it is asserted but not proved.
There is no dispute that Mr. Karov was in pain and reasonably needed pain medication. Those
facts, however, do not prove that because there was a delay in the administration of medication,

2
 Generally, by statute, plaintiffs are not supposed to file medical malpractice claims until consulting with an
applicable expert who has explained the standard of care and warranted that there is a good faith basis for the claim
and certifying the same to the court. 12 V.S.A. § 1042. The statute obviously advances a strong legislative policy
against the filing of medical malpractice claims by plaintiffs, whether represented by an attorney or not, without the
imprimatur of a medical expert’s expertise. This did not happen in this case.

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the medical providers negligently breached the applicable standard of care.

         Expert testimony is necessary to establish the standard of care in this case, as in most
cases. The standard of care articulates “the degree of care ordinarily exercised by a reasonably
skillful, careful, and prudent health care professional engaged in a similar practice under the
same or similar circumstances whether or not within the state of Vermont.” 12 V.S.A. §
1908(1). Thus, as to May 5, the case could not go to a jury without expert medical testimony as
to the duty of the Facility doctor between 2:30 pm and 7:44 pm and breach of that duty, given all
the circumstances, including transfer of the care of the patient from the hospital to the Facility.
As to May 7, the case could not go to a jury without expert medical testimony as to the duty of
the Facility medical providers between 11:45 am and 4:00 pm and breach of that duty, given all
the circumstances, including Mr. Karov’s failure to return for medication at 12:15 pm.

        The record is silent as to why it took as long as it did for Mr. Karov to receive his first
dose of pain medicine in the Facility on May 5. All that is known is that the nurses were in
contact with the doctor about the need for the prescription and it took as long as it did to receive
it. The delay on May 7 was caused by some kind of error in the medication administration
record and some kind of confusion about whether Mr. Karov could return to the infirmary for his
medication when he was told to. These may or may not be sufficient facts upon which an expert
could predicate a standard of care and a breach, but they certainly are not sufficient for a
layperson jury to do so. Juries do not know what standards apply in an institutional setting of
this sort and the record is silent on the background circumstances that might help to show
negligence or an absence of it. Defendants are entitled to summary judgment on these claims.

               Refills of longer term medications

         Mr. Karov’s claim regarding delays in getting refills of his prescriptions has the same
defects. It is insufficient to simply assert the bad outcome (delays in getting refills) and then
insist that the outcome must be the result of negligence. The record discloses little about this
claim other than that Mr. Karov was confused about the rules regarding refills and he repeatedly
experienced delays in getting refills on prescriptions that had run out. There is no expert support
for this claim and the record cannot not support any inference of negligence without it.

       The Eighth Amendment

        The U.S. Supreme Court has recognized that deliberate indifference to a prisoner’s
serious medical needs violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104–05
(1976). Not every claim of inadequate medical care is a constitutional violation, however. As
the Court described,

       [I]n the medical context, an inadvertent failure to provide adequate medical care
       cannot be said to constitute “an unnecessary and wanton infliction of pain” or to
       be “repugnant to the conscience of mankind.” Thus, a complaint that a physician
       has been negligent in diagnosing or treating a medical condition does not state a
       valid claim of medical mistreatment under the Eighth Amendment. Medical
       malpractice does not become a constitutional violation merely because the victim

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       is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or
       omissions sufficiently harmful to evidence deliberate indifference to serious
       medical needs. It is only such indifference that can offend “evolving standards of
       decency” in violation of the Eighth Amendment.

Id. at 105–06. Deliberate indifference means “that the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[A]n official’s failure to alleviate a
significant risk that he should have perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of punishment.” Id. at 838.

        The evidence in this case is insufficient to show a negligent state of mind, much less
deliberate indifference. While there were delays in getting pain medication to Mr. Karov, there
is no dispute that the nurses conveyed the need for medication to the doctor, the doctor wrote the
prescription, and the medication was given. It just took longer than desirable for reasons that go
completely unexplained in the record. The delay itself is insufficient to support any inference of
disregard.

       Counsel for Mr. Karov argues as follows:

                When a patient is returned to a prison infirmary after undergoing serious
       abdominal surgery, such as to repair an inguinal hernia, is not seen by the doctor
       at all that day, and has his prescription changed from one given for serious pain to
       a non-narcotic without explanation specific to the individual, and is given no
       medication for more than five hours after the surgeon’s prescribed time for the
       next dose, despite his repeated requests and claims of pain; those are facts that a
       lay trier of fact can readily determine constitute medical neglect. When the
       provider’s notes for a good portion of the day in question are withheld or
       otherwise not available, and false entries made when the staff becomes aware that
       the patient has contacted his attorney, at that point a lay trier of fact can readily
       determine that the neglect is willful and constitutes deliberate indifference.

Plaintiff’s Opposition to Summary Judgment 6 (filed May 26, 2015). This is an argument of
counsel, however, and not evidence. There is no evidence in the record that the Facility doctor
should have seen Mr. Karov on the day of his surgery or should not have prescribed Tramadol,
or that anyone refused to produce any medical records, or that anyone falsified medical records
because Mr. Karov contacted his attorney. There is a dispute about the content of some of Mr.
Karov’s progress notes but that dispute does not change the outcome here. Assuming the truth of
Mr. Karov’s version of the events, he still has failed to demonstrate a triable issue on his Eighth
Amendment claim.




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       Conclusion

       The claims in this case are based on delays in receiving medication. Without expert
medical testimony, Mr. Karov is unable to demonstrate that those delays were caused by
negligent breaches of duty on the part of medical professionals. Neither is he able to show that
they occurred because of deliberate indifference.


                                            ORDER

       For the foregoing reasons, Defendants’ motion for summary judgment is granted.

       Dated at Montpelier, Vermont this 3rd day of August 2015.


                                                     _____________________________
                                                     Mary Miles Teachout
                                                     Superior Judge




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