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Bethel v. Karas

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

June 26, 2019

WILLIAM CALVIN BETHEL, JR. PLAINTIFF
v.
DR. ROBERT KARAS and SHERIFF TIM HELDER DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.

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

         The claims in this case concern the medical care Bethel received when he was incarcerated in the Washington County Detention Center (“WCDC”) from July 11, 2017, until his transfer to the Arkansas Department of Correction on October 19, 2017. Specifically, Bethel maintains that Dr. Robert Karas, the contract physician for the WCDC, and Sheriff Tim Helder violated Bethel's constitutional rights by denying him adequate medical care.

         On December 19, 2018, Defendants filed a Motion for Summary Judgment (Doc. 21). On December 27, 2018, an Order was entered directing Bethel to file a response to the Motion for Summary Judgment by January 17, 2019. (Doc. 24). Bethel was advised in the Order that failure to comply with its terms would result in: (a) all of the facts set forth by the Defendants in the summary judgment papers being deemed admitted by Bethel, pursuant to Rule 56.1(c) of the Local Rules for the Eastern and Western Districts of Arkansas; and/or (b) the dismissal of the entire case, without prejudice, pursuant to Local Rule 5.5(c)(2). Bethel did not file a response to the summary judgment motion.

         Although the local rules allow the Court to deem facts admitted when a plaintiff does not file a response specifically disputing those facts, the Eighth Circuit has stated:

A plaintiff's verified complaint is the equivalent of an affidavit for purposes of summary judgment, and a complaint signed and dated as true under penalty of perjury satisfies the requirement of a verified complaint, 28 U.S.C. § 1746. Although a party may not generally rest on his pleadings to create a fact issue sufficient to survive summary judgment, the facts alleged in a verified complaint need not be repeated in a responsive affidavit in order to survive a summary judgment motion.

Roberson v. Hayti Police Dep't., 241 F.3d 992, 994-995 (8th Cir. 2001). Therefore, the Court will “piece[] together [Bethel's] version of the facts from the verified complaint.” McClanahan v. Young, 2016 WL 520983, at *1 (D.S.D. Feb. 5, 2016). The Court also has the benefit of Bethel's deposition, which is attached to the motion. Accordingly, the Court will deem admitted those portions of the Defendants' statement of material facts that do not conflict with either Bethel's verified complaint or his deposition.

         I. BACKGROUND

         A. Bethel's Account of His Medical History

         Bethel testified that he was diagnosed in 2015 with severe chronic obstructive pulmonary disease (“COPD”) and sleep apnea by Dr. Kalyan of Northwest Physicians. (Doc. 23-6 at 25, 27). Dr. Kalyan prescribed oxygen, twenty-four hours a day and seven days a week; the use of a CPAP/BIPAP[1] machine; Prednisone[2] as needed; two inhalers (Symbicort and Coventolin); an Albuterol updraft machine; and an Albuterol inhaler.[3] Id. at 25, 27, 32-33. Bethel stated that he did not use the oxygen as directed because he was worried he would become dependent on oxygen. Id. at 25. When Bethel's deposition was taken on November 12, 2018, he testified that he only used oxygen on an as-needed basis, which he estimated was now more than 50% of the time. Id. at 26. He indicated that he possessed a portable oxygen bottle in a carrying case with a nasal cannula. Id. Bethel also testified that he used the CPAP/BIPAP machine when he slept. Id. at 27. He admitted that there were periods of time in his life when he could not afford to lease the CPAP machine. Id. at 27-28. Further, despite his COPD diagnosis, Bethel testified that he still smoked about a pack of cigarettes a day. Id. at 49.

         At some point, Bethel was diagnosed with a blood clot (a deep vein thrombosis (“DVT”)) in his right leg and was placed on Coumadin.[4] Id. He claims that Dr. Hayward of Highlands Oncology took him off Coumadin due to an adverse reaction and prescribed Lovenox[5] injections instead. Bethel testified that he currently gives himself Lovenox injections in the stomach. Id. at 38-39. He maintains that in 2017, he was also diagnosed as having pulmonary embolisms in his lungs, specifically three or four blood clots. Id. at 38, 41.

         Next, Bethel claims that he was diagnosed with pulmonary hypertension in 2010. This condition was not treated. Id. at 43. He testified that his bicuspid valve and his mitral valve have moderate leakage. Id. at 43-44. He further claims that he was diagnosed with hypertension at some point in time, and doctors treated that condition with blood pressure medication. Id. at 43.

         Next, Bethel claimed to have “borderline diabetes, ” which he claims to monitor himself by testing his sugar levels daily. He also testified that he has neuropathy[6] in his legs and hands and at one point was prescribed “nerve medication, ” i.e., Gabapentin[7] or Klonopin.[8] Id. at 44-45.

         Finally, with respect to his mental health, Bethel claims he has severe anxiety, depression, and bipolar disorder. He believes he was diagnosed with bipolar disorder by Dr. Bonner in 2016. Id. Bethel was also prescribed Adderall[9] for ADD/ADHD.[10] Id. at 50.

         When Bethel was arrested in July of 2017, he claims he was taking Hydrocodone[11]for the neuropathy in his legs and for arthritis in his elbows, wrists, and knees. Id. at 51. Several months before his arrest, in March of 2017, he was incarcerated in the WCDC for a few days was prescribed the following medications: Albuterol; Gabapentin; Metoprolol; Amlodipine; Lisinopril; Lipitor;[12] Furosemide; Enoxaparin Sodium; a steroid inhaler; and Potassium. (Doc. 23-4 at 143).

         B. Bethel's Documented Booking and Medical History

         Bethel was booked into the WCDC in the late evening hours on July 11, 2017. (Doc. 23-2 at 1). His intake papers indicate that he was in possession of the following: Amphetamine salt;[13] Lovenox; Lisinopril;[14] Amlodipine;[15] Albuterol inhaler; Hydrocodone; Adderall; and a steroid inhaler.[16] Id. at 2. Bethel reported to the intake officer that he had a history of heart and breathing problems. Id. A nurse came to the booking area and asked where Bethel's medical records could be obtained. (Doc. 23-6 at 56). Bethel testified that he advised the nurse that the WCDC could obtain his medical records from Drs. Bonner, Howard, Kalyan, and Fish. Id. at 56-57.

         On July 13, 2017, the WCDC received medical records for Bethel from Mission Family Practice. These records showed that Bethel had a history of COPD, ADD/ADHD, generalized anxiety disorder, depression, and personality disorder. (Doc. 23-4 at 8-13). His prescribed medications included Adderall, Combivent[17], Hydrocodone, Klonopin, Lasix, [18] Lipitor, Lisinopril, Lovenox (subcutaneous injection), Norvasc, Potassium Chloride, Prednisone, ted hose for daily wear, Trazodone, [19] Tussionex, [20] Ventolin (inhaler), and Wellbutrin.[21]

         On July 19, 2017, the WCDC received Bethel's records from Northwest Health System. He had been treated there for the following conditions: a minor finger laceration on July 12, 2015, id. at 17-27; and cellulitis following a hernia repair on November 25, 2015, id. at 28-38.

         On July 19, 2017, the WCDC received Bethel's records from Highlands Oncology. From these records, it appears that on December 15, 2016, Bethel was diagnosed with acute embolism and thrombosis of an unspecified vein, anxiety disorder, polyneuropathy, other pulmonary embolism, bipolar disorder, COPD, pain in the right lower leg, personality disorder, major depressive disorder, and ADHD. Id. at 61. Bethel was switched from the drug Coumadin to the drug Xarelto, for treatment of his deep vein thrombosis condition.[22]Id. The medical records noted that Bethel had a “very complicated history involving primarily lungs and now a question of pulmonary emboli.” Id. at 63.

         Bethel was next seen by Highlands Oncology on December 28, 2016, complaining of rectal bleeding following initiation of Xarelto. Id. at 56. Bethel refused to consider having a colonoscopy but agreed to see a gastroenterologist. Id. A note was made in his file that Bethel's father had died of breast cancer at the age of 42. Id. at 57. Bethel was told to stop taking Coumadin and Xarelto and was given a prescription for Lovenox. Id. at 59.

         He was also seen at Highlands Oncology on May 11, 2017, just two months before his July incarceration at the WCDC. On May 11, he complained of pain in his legs, knees, and hips; fatigue; daily diarrhea; and restless sleep. His chart noted that he had several clots in the right lower lobe of his lung, chronic swelling of his right lower extremity, and possible pulmonary emboli. Id. at 41, 43. He was on “oxygen chronically” and took Prednisone 10 mg daily, a Ventolin inhaler, Warfarin, [23] Norvasc, [24] Potassium Chloride, and Combivent. Id. at 41. It was also noted that he had “diagnoses of a major depressive, personality disorder and attention deficient disorder” for which he took Klonopin and Adderall. Id. Dr. Hayward prescribed Lovenox injections and noted that the following medications had previously been prescribed to Bethel: Accu-Check Compact Test, Adderall, Chantix, Combivent Respimat solution for inhalation, Doxepin[25], Hydrocodone, Klonopin, Lasix, Lipitor, Lisinopril, Lopressor[26], Lunesta[27], Lyrica[28], Maxzide[29], Norvasc, Potassium Chloride, Symbicort inhaler, Tramadol[30], Trazodone, Ventolin inhaler, and Xarelto. Id. at 41-43.

         C. Medical Treatment at the WCDC

         Since January 1, 2016, Dr. Karas has been the WCDC's doctor for all inmates, and Karas Correctional Health has provided all medical, dental, and mental health care coordination for inmates in the WCDC. “All matters of judgment regarding health services are made within the sole province of the contract medical staff. No. employee of the [WCDC] is permitted to make non-emergency medical decisions on behalf of any inmate.” (Doc. 23-1 at 3).

         Detainees are required to submit all non-emergency medical requests through an electronic kiosk. Medical staff then review the medical requests that the inmates submit. The nursing staff is responsible for checking the files of inmates under care and for following all physician's orders that are noted in the file. According to Dr. Karas's Affidavit:

No one in the Sheriff's office, including the Sheriff, makes any decision as to whether or not [to] provide a particular medication, diagnostic testing, or medical treatment based on the cost of the medication, testing, or treatment. All decisions regarding medications, medical testing, or medical treatment are left to the professional medical judgment of the providers at the detention facility.

(Doc. 23-7 at 1-2) (emphasis in original).

         The WCDC has adopted procedures for handling inmates who are prescribed medications while in the facility and who are admitted with medications on their persons. According to Dr. Karas, “[i]t is common practice of the WCDC medical staff to request a patient's medical records prior to prescribing medications.” Id. at 2.

         On July 11, 2017, the day of Bethel's arrest, Corporal Patrick Bzoski submitted an incident report which read as follows:

On July 11, 2017 at approximately 10:57 p.m., Officer Hayden from the Fayetteville Police Department Brought in Detainee Bethel, William . . . for false imprisonment. Prior to their arrival they were at the hospital because Detainee Bethel complained he was having a heart attack. The hospital medically cleared him and then Detainee Bethel made the statement that he wanted to kill himself. Once the intake was complete, Officer Hayden informed me of Detainee Bethel's statement.
I notified the medical staff and Nurse Melissa responded. She spoke with Detainee Bethel and asked him if he wanted to commit suicide and he responded no. Nurse Melissa had Detainee Bethel sign a “No Harm Contract” and concluded from her evaluation [that] Detainee Bethel did not need to be put on suicide watch.

(Doc. 23-5 at 1).

         On July 12, 2017, medical staff reviewed Bethel's current medications and performed a medication reconciliation. (Doc. 23-4 at 89). They were able to verify his prescriptions for Hydrocodone, Tramadol, and Adderall at the Southgate Pharmacy. It appeared to staff that Bethel had not filled his prescriptions at the Southgate Pharmacy for Wellbutrin, Clonazepam, [31] Lipitor, Ventolin inhaler, Furosemide, [32] Triamterene-HCTZ, [33] Warfarin, Metoprolol, [34] Amlodipine, Gabapentin, Atorvastatin, [35] or Lisinopril for some time, and he had no refills left on any of those prescriptions. Id. at 90-93. In short, Dr. Karas and his staff concluded that Bethel had not been taking many, if any, of his heart medications and blood thinners since sometime in 2016. (Doc. 23-7 at 3). However, records from Bethel's March 2017 incarceration at the WCDC showed that he was prescribed at least Lovenox-a drug used to treat and prevent blood clots-during that several-day window. In fact, according to documents submitted by the Defendants, March 14, 2017 “was the last confirmed record of Lovenox administration” at the jail facility. Id. at 4.

         Shortly after Dr. Karas received some of Bethel's medical records from his free-world providers, he ordered Bethel to begin taking aspirin (162 mg.) on July 19, 2017, to serve as a blood thinner. (Doc. 23-4 at 98). Dr. Karas had concerns about the lack of detail in the medical records that would explain or justify why certain anticoagulant medications had been prescribed. He stated in his affidavit:

The records from Dr. Bonner did not give a thorough history of Bethel's diagnoses, and did not detail why he was taking the Lovenox. Further information was request[ed] from Walker Heart, who stated that the patiend [sic] had not been there since 2015 . . . . Medical records were received from Northwest medical Center on 7/19/16 and reviewed the same day. These records did not contain any information regarding anticoagulant medications.

(Doc. 23-7 at 3-4). In the meantime, Bethel refused to take the aspirin, and the prescription was discontinued on July 26, 2017. Id. at 99. Bethel later testified that he refused to take aspirin because he knew it would not help his medical conditions. (Doc.

         23-6 at 59 On July 20, 2017, Bethel submitted a medical request complaining that he was being charged for medical services, but none had been provided to him. On July 24, 2017, Bethel again asked for his money back because no medical services had been rendered. Nurse Hughes responded that Bethel “has more medical personnel trying to get all your medical history than most people.” (Doc. 23-6 at 65). She noted that he had listed very serious medications in his history, and staff were trying to get his medications started. She also noted that they had been “unable to verify” Bethel's medications and asked if he had “the bottles we can use them to get yours filled. Can you have them brought to us?” Id. Bethel testified that his bottles were brought to the jail as requested. Bethel indicated he did not receive the medications even after this was done. Id.

         On July 29, 2017, Bethel submitted a grievance stating that he was not being given his medication, “which is life-threatening medicine, which violates [his] inmate rights.” (Doc. 23-6 at 62). The nurse responded by asking if he wanted to sign a medical refusal form since he had refused the treatment they had tried-the treatment being aspirin, presumably. Id. Bethel responded by asking that staff contact his attorney, as he could not speak about “this matter.” Id. Bethel testified he responded this way because ...


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