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Laird v. United States

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

July 27, 2016

BOBBY LAIRD, PLAINTIFF
v.
UNITED STATES OF AMERICA, DEFENDANT

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

         This case was tried to the bench on January 11, 2016. As a preliminary matter, the United States’ motion on partial findings under Federal Rule of Civil Procedure 52(c) is denied. Having listened to the testimony and reviewed the exhibits introduced into evidence, judgment is entered in favor of the United States.

         This case involves a federal prisoner, Bobby Laird, who sued the United States under the Federal Tort Claims Act for delaying medical treatment. At trial, the government admitted that Laird needed an additional surgery, and stated that the Bureau of Prisons had begun taking steps to obtain this surgery for Laird. It was known at trial that Laird would be released from prison on June 8, 2016, and it was requested that this order be held in abeyance until the government confirmed that Laird would receive the surgery before being released. This order was held in abeyance so that the findings and conclusions herein would not weigh in any way on the Bureau of Prisons’s decision to either provide the surgery or not provide the surgery. Sadly, Laird was released from prison on June 8, 2016, without having received the surgery.

         I. FINDINGS OF FACT

         Bobby Laird was incarcerated in the Federal Correction-Camp in Forrest City, Arkansas, which is operated by the Federal Bureau of Prisons (“BOP”), until his release on June 8, 2016. Beginning on January 24, 2011, Laird began to complain to BOP medical care providers about left shoulder pain. BOP provided Laird with steroid injections, and Laird was instructed to follow up as needed. Laird returned to the health services clinic on April 12, 2011, and an X-ray was ordered, which showed mild degenerative changes to his left shoulder. On May 11, 2011, Laird was seen by Dr. Bret Sokoloff, an outside orthopedic, who diagnosed Laird with arthritis in his spine, a possible rotator cuff tear, mild arthritis in his left shoulder, and possibly adhesive capsulitis or frozen shoulder. Dr. Sokoloff injected a steroid into Laird’s left shoulder and ordered an MRI, which was conducted on July 18, 2011.

         Laird was treated by Dr. Sokoloff again on July 20, 2011, March 27, 2012, and June 27, 2013. Between his visits with Dr. Sokoloff, Laird was treated by BOP medical providers who gave him steroid injections and anti-inflammatory medication as needed. In addition to the July 18, 2011, MRI of the left shoulder, all tests ordered by doctors were approved, including a cervical MRI on November 17, 2011, which showed multi-level degenerative disc disease; an EMG on March 29, 2012; an MRI on October 23, 2013; and an arthrogram on February 27, 2014, showing what was believed to be a full rotator cuff tear.

         At trial, Dr. Martin Tindel, the clinical director of the Forrest City Federal Correctional Institution, testified that there is a process to obtain any testing or treatment not offered at Forrest City. First, any test or procedure must be approved by the clinical director at Forrest City, and then a third party scheduling company, NaphCare, is in charge of scheduling the test or procedure. Some tests and procedures, such as an MRI, need additional approval from the Regional Medical Director before being scheduled by NaphCare. NaphCare will then schedule the test or procedure with the outside specialist and report the date back to Forrest City, and then correctional services will transport the inmate on that appointed day. Importantly, officials at Forrest City are not responsible for scheduling the consultation date; that task is reserved for NaphCare.

         Specifically, the delay in obtaining two tests requested by Dr. Sokoloff are at issue: an EMG and an MRI. The EMG was obtained nearly a year after being ordered, and the MRI was obtained almost fifteen months after being ordered.

         First, as to the EMG, Dr. Sokoloff requested this test on February 27, 2014, after seeing Laird that day. In Laird’s medical records, Dr. Sokoloff noted, “Please consider/arrange repeat EMG to rule out other source of weakness and numbness. Schedule left shoulder arthroscopy and rotator cuff repair with distal clavicle excision and acromioplasty after EMG completed and forwarded to office.” This request was received by medical officials at Forrest City on April 10, 2014, and on April 16, 2014, a physician’s assistant ordered the test to be conducted, noting that the test should be completed “as soon as possible.” This test was approved by the acting clinical director at the time on April 17, 2014, and sent to NaphCare for scheduling on April 21, 2014. The test was initially scheduled for May 8, 2014, but on that date, the trip was cancelled by correctional services due to staffing issues. The escort staff scheduled to take Laird had to take a different inmate due to an emergency, and no other staff was available to take Laird. Laird’s EMG went back to NaphCare to be rescheduled for a different date.

         On January 27, 2015, Dr. Tindel, the new clinical director at Forrest City, discussed Laird’s treatment with Dr. Sokoloff and the need for more tests since Laird already had a number of tests performed. Dr. Sokoloff told Dr. Tindel that Laird’s symptoms now indicated a potential neurological issue and that an EMG and MRI were needed. The EMG was obtained on February 19, 2015, and Laird underwent surgery on his left shoulder on April 2, 2015. During this surgery, Dr. Sokoloff performed a subcromial decompression of Laird’s left AC joint but did not repair the left rotator cuff because the rotator cuff was not fully severed, as initially believed. Dr. Sokoloff testified that Laird received some relief from the decompression but not total relief because his pain is also caused by cervical nerve root compression.

         As for the second test, Dr. Sokoloff ordered a repeat cervical MRI on April 16, 2014. A physician’s assistant reviewed Dr. Sokoloff’s recommendation on April 16, 2014, and ordered the MRI to be conducted. The acting clinical director approved the test on April 17, 2014, and sent the request to the regional medical director, who approved the test on May 6, 2014. The MRI was performed on August 12, 2014, and the BOP received the results on September 22, 2014. For reasons unknown, the results of this test were never sent to Dr. Sokoloff. After Dr. Tindel spoke to Dr. Sokoloff about Laird’s treatment on January 27, 2015, another MRI was scheduled for February 23, 2015, but that trip was cancelled due to inclement weather. After performing the shoulder surgery on April 2, 2015, Dr. Sokoloff again requested a repeat cervical MRI. Laird was seen at health services in June 2015 by Dr. Capps, who requested another MRI of the cervical spine. On July 9, 2015, the BOP sent Laird for a cervical MRI, which showed nerve root compression.

         After reviewing this MRI with Laird on July 28, 2015, Dr. Sokoloff believed that Laird needed to see a neurosurgeon for a decompression fusion procedure. Dr. Tindel approved this request on July 30, 2015, and the regional medical director approved the request on October 21, 2015. Laird saw Dr. James Feild, an outside neurosurgeon on December 21, 2015, who recommended surgery. After re-examining Laird on May 16, 2016, Dr. Feild decided based on Laird’s symptoms that surgery was not appropriate at that time, and Laird was released from prison on June 8, 2016, without having received the decompression fusion surgery.

         II. CONCLUSIONS OF LAW

         Judgment is entered in favor of the United States because Laird has failed to prove that the BOP breached the applicable standard of care or that any failure on the BOP’s part was the proximate cause of Laird’s injuries. Because this case has been brought under the Federal Tort Claims Act, the law of the state where the alleged tort took place applies, which is Arkansas. 28 U.S.C. § 1346(b) (2012); Glorvigen v. Cirrus Design Corp., 581 F.3d 737, 743 (8th Cir. 2009). In an action for medical injury under Arkansas law, the plaintiff “must prove the applicable standard of care, that the medical provider failed to act in accordance with that standard, and that such failure was a proximate cause of the plaintiff’s injuries.” Webb v. Bouton, 85 S.W.3d 885, 891 (Ark. 2002). Usually, the plaintiff is required to prove these three elements by expert testimony, but an expert is not required in every case. Ark. Code Ann. § 16-114-206(a) (requiring an expert only “when the asserted negligence does not lie within ...


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