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Corona-Cervantes v. Karas

United States District Court, W.D. Arkansas, Fayetteville Division

December 28, 2017

J. FELIX (FERNANDO) CORONA-CERVANTES PLAINTIFF
v.
DR. ROBERT KARAS; SAM CAUDLE, Maintenance, Washington County Detention Center; ISAAC ANH-TUAN LE, D.D.S. DEFENDANTS

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis.

         Plaintiff is presently incarcerated in the Cummins Unit of the Arkansas Department of Correction. At all times relevant to this case, Plaintiff was incarcerated in the Washington County Detention Center (WCDC). While incarcerated in the WCDC, Plaintiff contends his constitutional rights were violated in the following ways: he was denied adequate medical care; he was denied adequate dental care; and he was subjected to unconstitutional conditions of confinement. Plaintiff has sued the Defendants in their individual capacities only.

         Dr. Le filed a Motion for Summary Judgment (ECF No. 34). A Motion for Summary Judgment (ECF No. 37) was also filed by Dr. Karas and Sam Caudle.[1] A hearing was held on July 10, 2017, to allow the Plaintiff to testify in response to the Motions for Summary Judgment.[2] At the conclusion of the hearing, the case was taken under advisement pending preparation of this report and recommendation.

         The Washington County Defendants were asked to, and did, file a Post-Hearing Supplement (ECF No. 46) to their Summary Judgment Motion, containing the medical file of the Plaintiff from October 2016 until the end of June 2017. While these records involved care rendered after the time period at issue in this case, the Court believed the information would be helpful to a full understanding of the Plaintiff's medical conditions.

         I. BACKGROUND

         Plaintiff testified he was booked into the WCDC on May 30, 2016. See also (ECF No. 39-2 at 1). He was in pretrial status until his conviction on May 10 or May 12, 2017. The period of time at issue in this lawsuit stems from his booking on May 30, 2016, to his filing of the Complaint on September 12, 2016. (ECF No. 1).

         (A). Factual Background Regarding Dental Claim

         Dr. Le became a licensed dentist in June of 2013. (ECF No. 34-1 at 1). In addition to his private practice, beginning in 2015, he contracted with Dr. Karas to provide dental care at the WCDC one Saturday per month. (Id.).

         Dr. Le does not have access to kiosk requests and has no input into who is put on the dental list. (ECF No. 34-1 at 2). Detainees are brought to him one at a time and this is the first time he learns about the specific dental problem they have. (Id.). Dr. Le provides only a narrow scope of services. (Id.). He can treat ongoing infections with medication or extract teeth. (Id.).

         With respect to extractions, Dr. Le states:

my process is to take a dental history from the detainee. I perform a visual examination of the detainee's mouth. If I identify a tooth that has a level of decay or mobility (looseness) that I deem to be clinically significant for potential problems in the short term, I will recommend to the detainee that the tooth be extracted. I will discuss the risks and benefits of extraction and obtain a written consent. I will provide detainee with anesthetic and, when it has taken effect, perform an extraction using the standard techniques I was taught in dental school.

(ECF No. 34-1 at 2).

         On June 15, 2016, Plaintiff complained of a broken molar and requested to be placed on the dental call list in order for the tooth to be extracted. (ECF No. 39-4 at 5). He was placed on the dental call list. (Id.). The next available dental call date at the time was July 16, 2015. (ECF No. 39-8 at 3).

         Plaintiff testified that the tooth became infected and the pain kept him from eating. He submitted another medical request on June 22, 2016. (ECF No. 39-4 at 5). On June 27, 2016, medical staff responded and placed Plaintiff on the sick call list, told him he was on the dental call list, and told him he would be provided pain medication. (Id.).

         On June 29, 2016, Plaintiff submitted another medical request about the broken molar and was told he was on the sick call list. (ECF No. 39-4 at 5-6). On June 30, 2016, Plaintiff was examined by a nurse who reported no abscess or drainage and prescribed Naproxen[3] for pain. (ECF No. 39-7 at 6).

         On July 16, 2016, Plaintiff saw Dr. Le. (ECF No. 34-1 at 3). Dr. Le noted "significant decay in tooth number one (back molar on the upper right)" and recommended extraction. (Id.). Plaintiff signed a written consent and the tooth was extracted. (Id. at 3 & 6). The consent, among other things, says that "although extreme care will be used the jaw, teeth roots, bone spicules or instruments used in the extraction procedure may fracture or be fractured, requiring retrieval and possible referral to a specialist." (Id. at 3); (ECF No. 39-7 at 41). Plaintiff testified that everything was normal at that time. Plaintiff was prescribed Naproxen and Cephalexin[4] for three days. (ECF No. 39-7 at 9).

         Plaintiff indicated that a few days later, the inflammation from the extraction had gone down. However, Plaintiff felt a "little pain" and put in a request because he felt pieces of tooth in his gum. Plaintiff testified he was told that the problem would go away on its own. Several months passed and Plaintiff continued to feel pain in the area of the extraction and in his right eye. He knew the area had gotten infected because of the smell, inflammation, taste, and because it would bleed when he brushed his teeth.

         On September 14, 2016, Plaintiff asked to see the dentist related to a "little chunk of teeth." (ECF No. 34-1 at 4). He was placed on the dental call list.

         According to Dr. Le, a bone spicule, or small piece of bone material which breaks off the tooth during extraction, is one of the normal complications that can occur in any tooth extraction. (ECF No. 34-1 at 2). The bone spicule may "work its way to the surface and the patient will notice it." (Id. at 3). When this happens, Dr. Le extracts the bone spicule. (Id). Plaintiff was seen by Dr. Le on November 12, 2016, and he recommended removal. (ECF No. 34-1 at 4; ECF No. 46-2 at 10). According to Dr. Le, "[t]his would have been a minor issue and most likely would not even have required anesthetic." (ECF No. 34-1 at 4). Dr. Le states that Plaintiff "declined to have the bone spicule removed because he had a pending lawsuit." (Id.); see also (ECF No. 46-2 at 10). Dr. Le did not see the Plaintiff again during the time period relevant to this case.

         Plaintiff testified, in contrast, that when he went to sign the consent for extraction, he noted that it said there was a chance his jaw could become dislocated or he could suffer partial or total paralysis. Plaintiff testified he became scared and refused to sign the consent.

         Plaintiff testified he continued to get infections and have pain. Finally, Plaintiff again requested extraction because he could "not stand" the pain. The bone spicule was extracted on June 17, 2017. (ECF No. 46-2 at 28 & 31). Plaintiff testified that after the spicule was extracted he had no further trouble.

         The Court has been provided the affidavit of Dr. Lee Hinson. (ECF No. 34-2). Dr. Hinson indicates he obtained his license to practice dentistry in 1983 and has practiced general dentistry in Central Arkansas since then. (Id. at 2). Dr. Hinson indicates he is familiar with the standard of care of the practice of general dentistry in Fayetteville, Arkansas, in 2016. (Id.).

         Dr. Hinson notes that a bone spicule is one of the normal complications of any tooth extraction. (ECF No. 34-2 at 3). He indicates the bone spicule is typically not felt by the patient for a few days or weeks. (Id.). If the patient consents, the spicule can be removed. (Id.). Dr. Hinson notes this is normally a "minor procedure that often does not even require anesthesia." (Id.).

         Dr. Hinson states that in his opinion Dr. Le "met the applicable standard of care in terms of diagnosis and treatment of the broken molar." (ECF No. 34-2 at 3). Further, he states that the presence of a bone spicule "does not, in and of itself, indicate any type of negligence or malpractice on the part of Dr. Le." (Id.). According to Dr. Hinson, "Dr. Le's response to the bone spicule was within the applicable standard of care." (Id.).

         (B). Factual Background as to Denial of Medical Care Claim

         Dr. Karas has been the jail doctor since January 1, 2016, pursuant to a contract between Washington County and Karas Correctional Health. (ECF No. 39-1 at 2); (ECF No. 39-8 at 1). All medical, dental, and mental health care is coordinated by Karas Correctional Health, which is located inside the WCDC. (Id.). The term "provider" is used to "refer to the treating medical professional who is either a physician or nurse practitioner." (ECF No. 39-8 at 1).

         Detainees can make medical requests daily for review by qualified medical personnel. (ECF No. 39-1 at 2). The requests are made via an electronic kiosk. (Id.). All kiosk requests for medical care are reviewed by medical staff. (ECF No. 39-8 at 2). All matters of judgment regarding health services are made by contract medical staff or staff of the treating facility. (ECF No. 39-1 at 2); (ECF No. 39-8 at 2).

         With respect to the language barrier, Dr. Karas states:

The Plaintiff is a Mexican national and his English appears to be very poor. The language barrier appears to have created a challenge in communications with the jail staff, but according to the records, Mr. Corona's complaints in Spanish were translated by medical staff and medical staff spoke with Mr. Corona both in Spanish and through the use of a translator when a Spanish-speaking member of staff was not involved in his care.

(ECF No. 39-8 at 2).

         Plaintiff testified that with respect to his general medical condition, he was not on any prescription medication when he was booked into the WCDC. Plaintiff testified that other than colds, the only medical problem he had before his incarceration was a rib injury caused when he lifted too much. (ECF No. 39-6 at 17-18). However, on the medical intake questionnaire, Plaintiff indicated he had a heart attack eight months ago, attempted to hang himself four years ago but currently had no thoughts of harming himself, and was allergic to ...


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