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Guilliams v. Helder

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

February 5, 2018




         Plaintiff, Gary W. Guilliams, filed this action pursuant to 42 U.S.C. §1983. He proceeds in forma pauperis. Although he was proceeding pro se when he filed the original Complaint, Plaintiff's Motion for Appointment of Counsel was granted and an attorney, Christopher William Nanos, was appointed to represent him (ECF No. 42).

         The case is before the Court on the Motion for Summary Judgment (ECF No. 66) filed by Sheriff Helder and Major Randall Denzer (the “County Defendants”). Plaintiff has responded (ECF Nos. 74, 75) to the Motion.

         A Motion for Summary Judgment (ECF No. 69) has also been filed by Dr. Karas and Karas Correctional Health, PLLC (the “Medical Defendants”). Plaintiff has responded (ECF Nos. 74, 75) to the Motion. Additionally, the Medical Defendants filed a reply brief (ECF No. 76). The Motions are ready for decision.

         Plaintiff maintains he was denied adequate medical care while incarcerated at the Washington County Detention Center (“WCDC”). Specifically, Plaintiff maintains he was denied adequate pain medication, a splint, a referral to an orthopedic doctor, and surgery for his fractured right wrist and associated numbness of his hand. Plaintiff also brings supplemental state tort claims of negligence and malpractice.

         I. BACKGROUND

         On February 22, 2016, when Plaintiff was walking in front of the IGA grocery store he “was knocked over by a person running from the store.” (ECF No. 74-10 at 1). He hit the ground injuring his right wrist. (Id.). That same day, Plaintiff reported being assaulted by several individuals from the Salvation Army at the IGA grocery store. (ECF No. 68-11 at 9). Plaintiff was arrested for public intoxication and transported to the WCDC where the jail nurse decided not to accept the Plaintiff. (Id.). He was cited and released from custody. (Id.).

         Central Emergency Medical Services (“CEMS”) responded to the WCDC. (ECF No. 68-7 at 5). Plaintiff told the CEMS paramedics that “someone assaulted him, twisting his arm behind his back.” (Id.). Swelling and a possible deformity in the right wrist was noted. (Id.). Plaintiff also reported lateral neck pain, right knee pain, and being short of breath. (Id.). Plaintiff was transported to the emergency room (“ER”) at Washington Regional Medical Center (WRMC). (Id.).

         Plaintiff's x-rays showed: “an impacted, mildly comminuted distal radial fracture. No evidence of intra-articular extension. Fracture of the ulnar styloid process. There is some dorsal angulation of the distal radial fracture. Old fracture of the mid scaphoid bone.” (ECF No. 68-9 at 34). Plaintiff was intoxicated, uncooperative, and abusive to staff. (Id. at 18-19). No attempt was made to reduce the fracture due to his conduct. (Id.). A splint, ace bandage, and sling were applied. (Id. at 18). His discharge diagnosis was Colles' fracture, no reduction required. (Id. at 16). Plaintiff was advised that Dr. Coker, an orthopedic physician, wanted to see him in two days. (Id. at 12). He was told to call for an appointment time. (Id.). He was prescribed Norco. (Id.).

         Following this visit, Plaintiff testified he went to Ozark Orthopaedic. (ECF No. 71-1 at 21-22). Because he did not have insurance, Plaintiff testified he was turned away. (Id. at 22).

         On February 25, 2016, Plaintiff reported to the Fayetteville Police Department (“FPD”) that someone “pushed him down, causing him to hurt his right arm.” (ECF No. 68-11 at 14). CEMS responded and Plaintiff reported being pushed from behind and that he hurt his arm again. (ECF No. 68-7 at 11). Plaintiff was in pain and his right wrist was swollen. (Id.). An attempt was made to splint his wrist but he would not let them. (Id.).

         Plaintiff was transported by ambulance to Physician's Specialty Hospital (“PSH”). (ECF No. 68-7 at 12). It was noted Plaintiff fell and injured his right arm and had a previous fracture of his right wrist. (ECF No. 68-8 at 14). It was also noted that Plaintiff had a splint after the initial injury but took it off because it was hurting him, and that he had the odor of alcohol. (Id.). Plaintiff was diagnosed with fractures of the distal radius, the ulna and scaphoid. (Id. at 22). A sugar tong splint was applied and two four inch ace bandages. (Id. at 14). He was also placed in a sling. (Id.). Plaintiff was prescribed Ultram. (Id. at 27).

         On February 29, 2016, Plaintiff stated a man pushed him down and reinjured his wrist again. (ECF No. 68-7 at 17). CEMS was dispatched. (Id.). Plaintiff indicated he had twice been given a splint but the splints were too tight and he removed them. (Id.). The paramedics attempted to place an ice pack on his wrist but Plaintiff refused. (Id.). He also refused a splint. (Id.). Plaintiff was transported to WRMC. (Id.).

         Plaintiff complained of right wrist swelling and pain for the last nine days and needed his arm fixed. (ECF No. 68-9 at 45). He stated he took the splint off because it was hurting, and he was not wearing his sling. (Id.). He said he tried to see the orthopedic doctor, but he was homeless and could not pay. (Id.). He was told there was not much else that could be done since he had already been seen there, and that he would have to go to the lobby and wait his turn to be seen. (Id.). Plaintiff became belligerent and the intake worker called security. (Id.). Plaintiff left the ER area without being treated and was found sleeping in the chapel. (Id. at 44). Plaintiff was escorted from the hospital by law enforcement. (Id.).

         On March 2, 2016, Plaintiff was seen at Ozark Orthopaedic by Larrah Jenkins, a Physician's Assistant for Dr. C. Noel Henley. (ECF No. 71-5 at 1). It was noted Plaintiff was not wearing his splint because it was too uncomfortable, but he was using an Ace wrap. (Id.). The right wrist was noted to be mildly swollen with: “notable deformity of the distal radius, has limited flexion and extension, limited pronation and supination. He has good gentle range of motion of the fingers. Sensation is grossly intact.” (Id.). X-rays were taken and showed “a fracture of the distal radius with some dorsal angulation apex volar.” (Id.). The plan was to put him in a volar splint and have him follow-up with Dr. Henley in the next seven to 10 days. (Id.).

         On March 6, 2016, Plaintiff called 911 from a McDonald's restaurant. (ECF No. 68-7 at 24). CEMS responded. (Id.). Plaintiff complained his right wrist had been hurting for the past two weeks since he broke it when he fell. (Id.). Swelling was noted in the right wrist with no other signs of injury. (Id.). Plaintiff rated his pain as a ten out of a ten. (Id.). A sling was applied and he was transported to WRMC. (Id.).

         Plaintiff advised that he had been diagnosed with a right wrist fracture, had been using the splint off and on, had not called for a follow up with an orthopedic physician, and had not been able to fill his Norco prescription because of lack of money. (ECF No. 68-9 at 55). Plaintiff smelled of alcohol. (Id.). He was diagnosed with a “mildly comminuted distal radial fracture.” (Id. at 57). A slightly increased displacement was noted compared to the prior study. (Id. at 63). A splint was applied to his right forearm along with a four inch ace wrap and a sugar tong posterior mold was applied and the wrist immobilized. (Id. at 59). Plaintiff was told to follow up with Dr. Heinzelmann, an orthopedic surgeon. (Id. at 54). Plaintiff was released but would not leave. (ECF No. 68-2 at 5). He was yelling at staff and wandering around the waiting room. (Id.).

         The police were called and Plaintiff was transported to the WCDC. (ECF No. 68-2 at 3-4; ECF No. 68-11 at 20). He was charged with public intoxication and disorderly conduct. (Id. at 18, 21). He was booked in at 9:57 a.m. and released at 2:07 p.m. that same day. (ECF No. 68-2 at 3-4). His medical complaints/injuries were listed as “broken rt. arm in cast.” (Id.).

         On March 13, 2016, Plaintiff was charged with public intoxication and criminal trespass and booked into the WCDC at 1:05 p.m. (ECF No. 68-2 at 11; ECF No. 68-11 at 21, 25). He was released the following day at 1:50 p.m. (ECF No. 68-2 at 12). Intake documents indicate he had three ace bandage wraps in his possession, but no splint or sling was listed with his other property. (Id. at 13). His medical complaints/injuries were listed as “hurt right wrist.” (Id.).

         On April 4, 2016, CEMS responded to a call to the WRMC parking lot for a possible arm fracture. (ECF No. 68-7 at 30). Plaintiff complained of right wrist pain. (Id.). He reported having broken his arm about a month ago. (Id.). He said he had been seen at the ER and a cast was put on. (Id.). He indicated the cast was uncomfortable and he removed it but the pain was now getting worse and he wanted to go to the ER again. (Id.). It was noted that swelling and deformity of the right wrist were present, but Plaintiff was moving it without obvious difficulty. (Id.). Sensory and motor function in the injured arm were found to be intact, and there was good capillary refill in the finger tips. (Id.).

         The FPD stated that Plaintiff was not permitted on WRMC property and would have to go to Northwest Medical Center in Springdale. (ECF No. 68-7 at 30). Plaintiff was transported to the ER at the Northwest Medical Center. (Id.).

         Plaintiff's diagnosis was “right distal radius fracture and right scaphoid fracture.” (ECF No. 71-7 at 29). He was given a prescription for Tylenol with Codeine and told to follow-up with a physician within one to two days and with Dr. John Heim within three to five days. (Id.).

         Plaintiff points out that during this entire time since his injury he was homeless, had no insurance, and was suffering from major depressive disorder. (ECF No. 74-10 at 3). He indicates he had to carry his belongings with him, slept on the street, and it was difficult to wear the splint because it caused his arm to swell and it was painful. (Id.). Plaintiff indicates he would take if off for a while and when the pain went away he would put it back on. (Id.).

         On April 5, 2016, Plaintiff was identified as having run from the woods and threatened two people with a kitchen knife. (ECF No. 68-2 at 23; ECF No. 68-11 at 34). He was arrested by the FPD and charged with aggravated assault, carrying a prohibited weapon, and public intoxication. (ECF No. 68-11 at 26). He was booked into the WCDC on April 6, 2016 at 12:31 a.m. and remained there until May 19, 2016, when he was released. (ECF No. 68-2 at 20-21).

         One of the intake forms lists his medical complaints/injuries as: “depression, broken rt. arm.” (ECF No. 68-2 at 30). Plaintiff was seen at booking by a jail nurse. (ECF No. 71-6 at 9). It was noted that Plaintiff's right wrist had been broken over a month ago. (Id). Plaintiff reported constantly being in pain. (Id.). Plaintiff's wrist was noted to be deformed, and Plaintiff stated he had been told it would have to be re-broken and set back in place. (Id.). Plaintiff was able to move his fingers. (Id.). Plaintiff was added to doctor call. (Id).

         Detainees of the WCDC may submit medical complaints/requests via an electronic kiosk. (ECF No. 68-1 at 2). The requests are reviewed by medical personnel. (Id.). Since January 1, 2016, Washington County has contracted (ECF No. 74-4) with Karas Correctional Health, PLLC (“KCH”) (ECF No. 74-2) to provide medical services at the WCDC. (ECF No. 68-1 at 3; ECF No. 68-5 at 2). Dr. Karas is the jail doctor, and he or his personnel are the primary medical care providers. (ECF No. 68-4 at 7).

         Plaintiff submitted his first request on April 6, 2016. He stated “broke arm [medical] help please.” (ECF No. 68-3 at 1). He was told he had submitted it incorrectly and needed to submit the request to medical. (Id. at 2). He submitted a second request that same day saying he was in a lot of pain from his broken arm. (Id.). He was again told to submit the request to medical. (Id.). The requests were reassigned to medical. (ECF No. 68-3 at 1). On that same day, doctor call was declined because there was “[n]o indication for MD at this time.” (ECF No. 71-9 at 9).

         On April 7, 2016, Plaintiff was asked if he broke his arm before or after he was incarcerated and whether he had told anyone that had been passing medication. (ECF No. 68-3 at 1). Plaintiff submitted his next request on April 7, 2016, stating he needed to see a nurse or doctor about having his arm re-broken because it had grown back together wrong. (Id. at 2). Plaintiff responded to the question of when he had broken his arm by saying that he broke it before he was incarcerated. (Id. at 1). He also noted that the nurse passing medication merely said she would check into it. (Id. at 1).

         On April 8, 2016, Plaintiff submitted two requests saying he was in pain and needed medical help. (ECF No. 68-3 at 3). He was again told to write to medical and the requests were closed. (Id.). He submitted a third request saying he needed his broken arm “looked at ASAP.” (Id.). He was added to doctor call. (ECF No. 71-6 at 9). He was seen by Kelley Oliver, a nurse practitioner. (ECF No. 71-6 at 10; ECF No. 74-3 at 71). She noted Plaintiff had been non-compliant with the splint and was refused a visit with the orthopedic doctor due to inability to pay. (ECF No. 71-6 at 10). She noted “right wrist deformity, increase pain with flexion/extension, fingers pink, sensory/motor intact and points straight, no edema/discoloration at wrist.” (Id.). She ordered an x-ray, indicated they would request his records from WRMC and Physicians Specialty Hospital (“PSH”), and started Plaintiff on Naproxen and ice. (Id.).

         On April 8, 2016, Plaintiff submitted a fourth request asking for something for pain. (ECF No. 68-3 at 4). On April 11, 2016, he was told he had been added to the nurse call list. (Id.). On April 11, 2016, Plaintiff complained that he had been taking Tramadol, one every four hours, and at the WCDC was only given one Naproxen in the morning and one at night. (ECF No. 68-3 at 4). He indicated he was suffering unnecessary pain and could not sleep. (Id.). He was seen by a jail nurse who noted he wanted something stronger for pain and wanted his wrist fixed now he had Medicaid. (ECF No. 71-6 at 10). He was told he would be added to the “doctor call, but we do not give anything stronger than naproxen or [T]ylenol.” (ECF No. 68-3 at 4). On April 12, 2016, he was told the advance practice nurse had approved an increase in the Naproxen dosage but that he would not be prescribed any stronger pain medication. (Id. at 5). He was not seen by the doctor. (Id.).

         On April 11, 2016, Plaintiff was asked if he was seen by a doctor when he broke his wrist. (ECF No. 68-3 at 1). That same day, he responded that he was seen at “Regional.” On April 11, 2016, a notation was made that plaintiff had been “seen via medical.” (Id.). On April 12, 2016, Dr. Karas read the x-ray and noted “a distal comminuted radius fracture.” (ECF No. 71-8 at 75-76). Dr. Karas testified they treated Plaintiff's injury as a “non-acute injury and a non-emergent condition.” (Id. at 79). In his words:

“that horse was out of the barn. He'd been six weeks without treatment of it. The procedure he would need - the surgery he's going to need, whether we gave it to him the first day he got in there or whether he gets it six months later, the surgery treatment and outcome are going to be the same.”


         Dr. Karas testified they could not “fix” all the inmates medical problems and had to be judicious about what they treated. (ECF No. 71-8 at 80). He noted there were other inmates in the detention center with broken bones they did not send to an orthopedic doctor. (Id.). He stated that Plaintiff was in and out of the jail multiple times, fell frequently, failed to wear the splints provided, and failed to follow-up on the recommendations made by the different hospital physicians he had seen. (Id. at 80-81, 89). Dr. Karas testified that Plaintiff was aware that his wrist was going to have to be re-broken and he was going to need surgery. (Id. at 81). Dr. Karas testified they also considered whether they were able to control an inmate's pain, such as they did with Plaintiff, by providing a second mat, a 24 hour mat, a second blanket, the pain medication they had available, and an Ace wrap. (Id. at 82-83). Dr. Karas indicated they considered how long the inmate was going to be incarcerated (Id. at 82), and whether the problem was one that “once they get out and their insurance kicks back in, they [can] go get it fixed.” (Id.). Another consideration mentioned by Dr. Karas was whether the patient would follow-up and take good care of themselves, go to physical therapy or rehab, so they would have a good outcome from the surgery. (Id. at 104). Dr. Karas testified they tried to be fair and consistent among inmates with similar types of injuries. (Id. at 83).

         In general, Dr. Karas testified that splints are a security risk which is why they usually use Ace wraps. (ECF No. 71-8 at 84). If an inmate has a splint, they have to be in isolation or medical holding. (Id. at 86). If there is a question regarding a medical device's safety, Dr. Karas testified detention center staff would look at it first. (Id.). Dr. Karas testified detention center staff can refuse “to allow that care” (Id. at 87); however, Dr. Karas testified that immobilizing Plaintiff's wrist in April of 2016 might have decreased Plaintiff's pain. (Id. at 88, 90).

         On April 16, 2016, Plaintiff submitted a request stating that his arm was broken in three places and asking why he had not been taken to an orthopedic doctor. (ECF No. 68-3 at 6). Since he had been in jail, Plaintiff states his hand had gone numb and his thumb felt like it was on fire. (Id.). He asked that something be done before he lost the use of his hand. (Id.). He stated he was in a lot of pain. (Id.). In response, he was told to write to medical and was asked if he could not see the medical category on the kiosk. (Id.). Plaintiff submitted another request that same day asking for help to get to the orthopedic doctor. (Id.). He stated his hand was numb and his thumb felt on fire. (Id.). That day, a prescription was added for “24/7 bed rest on mat.” (ECF No. 71-6 at 12).

         On April 18, 2016, he was told he was placed on nurse call. (ECF No. 68-3 at 6). On April 18, 2016, Plaintiff submitted a request asking if he could keep his blanket since it was so cold in his cell. (ECF No. 68-3 at 7). He said the cold made his arm hurt twice as bad and that he had screws in his ankle the cold bothered too. (Id.). He indicated he could not sleep because he hurt from head to toe. (Id.).

         On April 18, 2016, Plaintiff also asked when he was going to be taken to see his doctor at the “old regional hospital.” (ECF No. 68-3 at 7). In response, he was told that the nurse did not believe they took people to see their own doctors. (Id.). Plaintiff was asked why he wanted to see his doctor. (Id.). Plaintiff replied that he wanted to see his doctor about his broken arm. (Id. at 8).

         On April 19, 2016, he was told he was placed on doctor call. (ECF No. 68-3 at 7). That same day, a doctor visit was declined because Plaintiff had been put on a “24 hr mat.” (ECF No. 71-6 at 12).

         On April 20, 2016, Plaintiff asked again when he would be taken to his doctor. (ECF No. 68-3 at 8). In response, he was told that they did not transport detainees to outside doctors. (Id.).

         On April 22, 2016, Plaintiff was given a prescription for a “24 hr 2nd mattress.” (ECF No. 71-6 at 14). That same day, the prescription for 24/7 bed rest on mat was discontinued and Plaintiff was given a prescription for a 24 hour mat instead. (Id. at 13).

         On April 27, 2016, Plaintiff submitted a request about a number of issues and stated his wrist hurt and asked someone to do something. (ECF No. 68-3 at 11). He was told to submit a separate request to medical. (Id.). He was reassigned to segregation by medical staff because of his “hand issue” on April 28, 2016. (ECF No. 71-6 at 14).

         On April 29, 2016, Plaintiff asked again if he could keep his blanket during the day because his wrist hurt even more in the cold air. (ECF No. 68-3 at 12). He was told he was on nurse call. (Id.). He was prescribed “24/7 bed rest on mat, ” and a “24 hr 2nd mattress.” (ECF No. 71-6 at 14-15). His request to keep his blanket was declined by the nurse because the “[j]ail is kept at an adequate temp.” (Id. at 16). On May 3, 2016, his “24 hr 2nd mattress” was discontinued and he was prescribed again “24/7 bed rest on mattress.” (Id.).

         On May 5, 2016, Plaintiff was added to doctor call. (ECF No. 71-6 at 18). On May 6, 2016, doctor call was declined. (Id.). Notes indicate: “[t]he xray, wrmc, and psh records were reviewed.

         Detainee was instructed to have surgery prior to detention. The detainee reported Ozark orthopedic refused to see him related to not having a method to pay. The detainee has no compromise to circulation, sensory and motor intact.” (Id.).

         On May 6, 2016, Plaintiff was told:

“Mr. Guilliams per the provider, as you know you were told by Washington Regional Medical Center, Physician Specialty Hospital and Ozark Orthopaedics th[a]t you needed surgery prior to you[r] arrest. I will start you on Seroquel and continue Naproxen and Tylenol. . . . ...

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