Wilson v. Wexford Health Sources, Inc

Filing 13

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 5/2/2016. (kw2s, Deputy Clerk)(c/m 5.3.16)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
TIWAN T. WILSON,

*

Plaintiff,

*

v.

*

WEXFORD HEALTH SOURCES, INC.,

*

Defendant.

Civil Action No. PWG-15-1448

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***
MEMORANDUM OPINION

Plaintiff Tiwan T. Wilson filed this complaint alleging that he has received insufficient
and inappropriate medical care from Defendant Wexford Health Sources, Inc. ("Wexford").
Pending are Wexford's motion to seal and motion to dismiss or for summary judgment.

ECF

Nos. 9 & 10. Wilson was notified of his right to file an opposition in response to Wexford's
dispositive motion and was advised of the consequences of failing to do so. See ECF Nos. 11 &
12. Wilson has filed nothing further, and the time to do so has passed. See Loc. R. 105.2(a). A
hearing is unnecessary in this case.

See Loc. R. 105.6.

For the reasons stated below, the

unopposed motion to dismiss or for summary judgment will be granted.
seal Wilson's medical records, ECF No.9,

Wexford's motion to

which contains his sensitive personal information,

shall also be granted.
I.

BACKGROUND

A. Plaintifrs Allegations
Wilson alleges that he has been coughing up blood since January 21, 2013, and that on
August 4, 2014, he filed an administrative remedy procedure complaint ("ARP") in an effort to

get help. CompI. 5, ECF No. 1. Although Wilson's ARP was dismissed on the grounds that he
was already receiving medical care for his complaint, he states he was still experiencing chest
pain and was coughing up blood.

Jd.

He claims that medical staff at Eastern Correctional

Institution ("Eastern") told him nothing was wrong with him. Jd.
After being transferred

to Roxbury

Correctional

Institution

("Roxbury"),

Wilson

submitted sick call in an effort to get help for his complaints. Id. He states that as a result of his
requests he was sent for a chest x-ray and CT scan. Jd. at 3. Wilson was first informed that the
problem stemmed from metal inside his chest, which he states was what he was told previously
while he was at Eastern. Jd. He claims that medical staff "still did nothing about it." Jd.
Wilson was sent back to the hospital for another test and states "they find (sic) out that
[he is] suffering from lung disease." Jd. Wilson believes this was the problem all along and that
it was missed by medical staff at Eastern. Jd. He further relates that he fears doctors at Roxbury
are delaying proper treatment for his condition because he was told more tests would be required
before surgery could be approved. Jd. Wilson claims a doctor at Bon Secours Hospital informed
him he would have to be sent to the University of Maryland where the original surgery on his
chest was performed and his medical records are located. Jd.
Wilson further alleges that "black lines" have begun to appear inside his fingernails. Jd.
He states that a physician's

assistant told him the black lines could be an indication of heart

disease, while another told him it could be related to his lung disease.

Jd. He maintains that

neither physician assistant did anything about the black lines, such as order further tests to
determine the reason for the black lines. Jd. Wilson claims he is not on any type of medication

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to help with his lung disease or "whatever else [he] could be suffering from." Id.l
Wilson's request for relief seeks to "make Wexford

...

take responsibility and pay for

their misdiagnosis and medical neglect." Id. at 4-5. He further asserts that Wexford misled the
undersigned in a previous lawsuit and convinced the Court there was nothing wrong with him.
Id. at 4. He seeks injunctive relief ordering appropriate medical care for his condition. Id.
B. Defendant's Response
Wilson sued Wexford in this Court for substantially the same claim in 2013. See Wilson
v. Wexford, Civil Action PWG-13-3539 (D. Md. filed Nov. 22, 2013) ("Wilson 1'). In that case,
it was established that Wilson had a history of chest and abdominal trauma from multiple
gunshot and stab wounds.

See Wilson I Mem. 3, Wilson I, ECF No. 16. For his complaints of

coughing up blood, Wilson received diagnostic imaging tests that revealed fibrotic changes in the
mid-to-Iower lung area, decreased aeration of his right lung, and deformities of his ribs.

Id.

Additionally, evidence of prior surgeries, including surgical clips in his right lower lung, were
noted. Id. At that time, Wilson's complaints included chronic chest pain, which was not related
to cardiac or respiratory problems; hemoptysis or coughing up blood; shortness of breath; upper
respiratory disease; pneumonia; and empyema (collection of pus or infection) in his lung. Id.
In his 2013 complaint, Wilson had alleged that he was denied medical treatment,
including diagnostic testing, for his complaints and sought injunctive relief ordering treatment.
Id. at 1. Evidence was produced that indicated Wilson had received diagnostic testing and was
being treated for bronchiectasis, a condition in which damage to airways causes them to widen
and become flabby and scarred. Id. at 3 & n.4. I further observed that:

Page four of Wilson's complaint is actually a continuation of his request for relief, which
begins on page five.
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It appears the request for the CT scan was generated on March 28, 2013, six
months before the test was conducted. At that time, it was noted that Plaintiff
was complaining of intermittent hemoptysis and there was a need to rule out
bronchiectasis or pulmonary disease following his admittance to the prison
infirmary. Id. at 112, 327. A chest x-ray taken two months prior to the request
for a CT scan on January 28, 2013, revealed "post-traumatic changes." Id. at
323. On May 7, 2013, when Plaintiff was seen by Dr. Ashraf, it was noted that
there were no signs or symptoms of hemoptysis or shortness of breath,
prompting Ashraf to delay the CT scan. Id. at 128.
The bronchoscopy test requested by the Bon Secours pulmonary clinic was done
on December 4, 2013. Those test results indicate that plaintiff has "a mild
restrictive lung defect" with "mild decrease in diffusing capacity" which is
interpreted as an "insignificant response to bronchodilator." Id. at 341. Plaintiff
was given another bronchoscopy on February 7, 2014, which ruled out any
presence of a tumor or other lesion. Operative Report 1-2, Def.' s Supp. Ex. 1,
ECF No. 12-1. There was evidence of bronchiectasis with acute inflammation
of the inner walls of Plaintiff s lungs; the surgeon noted that there was "splinter
hemorrhages" when touched but that Plaintiff was not actively bleeding in his
lungs. !d. at 1. The current plan of treatment for Plaintiff is stated in Dr. Jason
Clem's affidavit as follows:
The treatment for bronchiectasis is aimed at controlling infections
and bronchial secretions, relieving airway obstruction, and
preventing complications. Based on these findings ... plaintiff is
presently receiving appropriate care for his pulmonary conditions
which includes Symbicort a corticosteroid inhaler used to reduce
inflammation of the lung, Guaifenesin an expectorant to thin and
loosen mucus production and chest congestion and cough tabs.
Plaintiff will continue to be regularly followed for his pulmonary
issues as a chronic care patient to monitor his condition and the
effectiveness of his treatment plan in controlling his symptoms
associated with his bronchiectasis, bronchitis and recurrent
hemoptysis.
Chern Supp. Aff. ~~ 6-7, Def.'s Supp. Ex. 2, ECF No. 12-2.
Wilson I Mem. 5-6.
Since that time, Defendant, states that Wilson continues to receive treatment for his lung
and respiratory
medications

issues, including prescribed

provided

to address

Wilson's

medications
respiratory

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to address his symptoms.
issues

include

The

Qvar (an inhaled

corticosteroid that decreases irritation and swelling in the airways); Nasacort AQ (a steroid that
prevents the release of substances in the body that cause inflammation); Prinvil (a drug used to
treat heart disease and hypertension); Metoprolol Tartrate (a beta blocker used to treat chest pain
and high blood pressure); Ventolin HFA (a bronchodilator that relaxes muscles in the airways to
allow increased air flow to the lungs); cough drops; Pneumovax 23 (a vaccine to prevent
streptococcus pneumoniae bacteria); and Benztropine Mesylate (used to reduce the effects of
certain chemicals in the body that may become unbalanced as a result of disease, drug therapy, or
other causes). See Def.'s Mem. 4-5 & n. 5, 6, 8, 12, 14, & 15, ECF No. 10-1; Clem Aff. 2-4,
Def.'s Mem., Ex. 2, ECF No. 10-5.
Wilson was sent to Bon Secours Hospital on March 11, 2015, where he was seen by Dr.
Surjit Julka. Clem Aff. 2. Dr. Julka determined after his physical examination of Wilson, that
his hemoptysis was likely caused by bronchiectasis but needed to rule out bronchopleural fistula.
ld. at 2-3. To that end, a CT scan of Wilson's chest was performed.

The results of the scan

indicated "extensive changes in the posterior right hemithorax related to old trauma and surgery"
as well

as "[ e]xtensive

calcification."

rib deformity

associated

with

diffuse

pleural

thickening

and

ld. at 3. No distinct bronchopleural fistula was seen, but Dr. Julka still suspected

one might be present and recommended Wilson undergo pulmonary function tests and prescribed
Albuterol as needed. ld.

The pulmonary function test was performed at Bon Secours Hospital

on April 16,2015. !d.
On July 1,2015, Wilson was seen by Dr. Colin Ottey, the regional medical director, and
Wilson's pulmonary function test results were reviewed with him. ld. Wilson told Dr. Otley
that he was experiencing right-sided chest pain that radiates to his back, which he rated at a nine
'out of ten level of pain. ld. He also told Dr. Ottey that he was coughing up brown sputum over

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the past month and experienced shortness of breath, wheezing, and fatigue after walking onehundred yards. Id. at 3-4. Based on Wilson's reports, Dr. Ottey noted that Wilson's pulmonary
doctor would be contacted for further discussion and follow-up.

Id. at 4. Dr. Ottey did not

observe Wilson to be in apparent distress but noted breath sounds in his right upper respiratory
tract was decreased. Id.
Defendant asserts that Wilson's complaint is barred by the doctrine of res judicata in
light of my prior decision granting summary judgment

in Wexford's

favor in Wilson 1.

Additionally, Defendant asserts that the complaint fails to state a constitutional claim based on
the undisputed material facts. Def.' s Mem 10, 12.
II.

STANDARD OF REVIEW

A. Summary Judgment
Summary judgment is proper when the moving party demonstrates, through "particular
parts of materials

in the record, including

depositions,

documents,

electronically

stored

information, affidavits or declarations, stipulations ... , admissions, interrogatory answers, or
other materials," that "there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c)(l)(A); see Baldwin v. City of
Greensboro, 714 F.3d 828, 833 (4th Cir. 2013).

If the party seeking summary judgment

demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
facts.

See Celotex v. Catrett, 477 U.S. 317 (1986).

The existence of only a "scintilla of

evidence" is not enough to defeat a motion for summary judgment.

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986). Instead, the evidentiary materials submitted must show facts
from which the finder of fact reasonably could find for the party opposing summary judgment.

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Id. "In ruling on a motion for summary judgment, this Court reviews the facts and all reasonable
inferences in the light most favorable to the nonmoving party." Downing v. Baltimore City Bd.
of School Comm 'rs, No. RDB 12-1047,2015 WL 1186430, at *1 (D. Md. Mar. 13,2015) (citing
Scott v. Harris, 550 U.S. 372,378 (2007)). Defendant's motion is unopposed.
B. Res Judicata
Res judicata

'''bars a party from suing on a claim that has already been litigated to a final

judgment by that party or such party's privies and precludes the assertion by such parties of any
legal theory, cause of action, or defense which could have been asserted in that action. '" Reid v.
New Century Mortg. Corp., No. AW-12-2083, 2012 WL 6562887, at *3 (D. Md. Dec. 13,2012)
(quoting Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009)
(citation and internal quotation marks omitted).

When considering this defense, '''a court may

take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises
no disputed issue of fact.'"

Kalas, 2012 WL 6210117, at *2 (quoting Andrews, 201 F.3d at 524

n.1). Res judicata provides grounds for dismissal if a defendant establishes '" (l) a judgment on
the merits in a prior suit resolving (2) claims by the same parties or their privies, and (3) a
subsequent suit based on the same cause of action.'"

Ohio Valley Envtl. Coal. v. Aracoma Coal

Co., 556 F.3d 177,210 (4th Cir. 2009) (quoting Aliffv. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir.
1990)).
judicata

Even if the plaintiffs

legal theory differed in the earlier dispute, the doctrine of res

still bars the current action, provided that "the second suit 'arises out of the same

transaction or series of transactions as the claim resolved by the prior judgment.'"

Id. (quoting

Aliff, 914 F.2d at 42). Further,
The preclusive [e]ffect of a prior judgment extends beyond claims or defenses
actually presented in previous litigation, for "[n]ot only does res judicata bar
claims that were raised and fully litigated, it prevents litigation of all grounds for,
or defenses to, recovery that were previously available to the parties, regardless of

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whether they were asserted or determined in the prior proceeding." Peugeot
Motors of America, Inc. v. Eastern Auto Distributors, Inc., 892 F.2d 355, 359 (4th
Cir. 1989), quoting Brown v. Felsen, 442 U.S. 127, 131 (1979) (internal quotation
marks omitted).
Meekins v. United Transp. Union, 946 F.2d 1054,1057 (4th Cir. 1991).
III.

ANALYSIS
The Eighth Amendment prohibits "unnecessary and wanton infliction of pain" by virtue

of its guarantee against cruel and unusual punishment.

Gregg v. Georgia, 428 U.S. 153, 173

(1976). "Scrutiny under the Eighth Amendment is not limited to those punishments authorized
by statute and imposed by a criminal judgment."

De 'Lonta v. Angelone, 330 F.3d 630, 633 (4th

Cir. 2003) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)).

In order to state an Eighth

Amendment claim for denial of medical care, a plaintiff must demonstrate that the actions of the
defendants or their failure to act amounted to "deliberate indifference to serious medical needs."
See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Deliberate indifference is a very high standard-a
will not meet it. ... (TJhe Constitution is designed
rights, not errors in judgments, even though such
consequences ....
To lower this threshold would
daily practices of local police departments.
Grayson v. Peed, 195 F.3d 692,695-96

showing of mere negligence
to deal with deprivations of
errors may have unfortunate
thrust federal courts into the

(4th Cir. 1999).

Deliberate indifference to a serious medical need requires proof that, objectively, the
prisoner plaintiff was suffering from a serious medical need and that, subjectively, the prison
staff were aware of the need for medical attention but failed to either provide it or ensure the
needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Objectively, the
medical condition at issue must be serious.

See Hudson v. McMillian, 503 U.S. 1, 9 (1992)

(there is no expectation that prisoners will be provided with unqualified access to health care).
Proof of an objectively serious medical condition, however, does not end the inquiry.

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The subjective component requires "subjective recklessness" in the face of the serious
medical condition. See Farmer, 511 U.S. at 839-40.

"True subjective recklessness requires

knowledge both of the general risk, and also that the conduct is inappropriate in light of that
risk." Rich v. Bruce, 129 F.3d 336,340 n.2 (4th Cir. 1997). "Actual knowledge or awareness on
the part of the alleged inflicter ... becomes essential to proof of deliberate indifference 'because
prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment.'"
Brice v. Virginia Beach Correctional Center, 58 F.3d 101, 105 (4th Cir. 1995) (quoting Farmer
511 U.S. at 844).

If the requisite subjective knowledge is established, an official may avoid

liability "if [he] responded reasonably to the risk, even if the harm was not ultimately averted."
See Farmer, 511 U.S. at 844. Reasonableness of the actions taken must be judged in light of the
risk the defendant actually knew at the time. See Brown v. Harris, 240 F.3d 383, 390 (4th Cir.
2001) (citing Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998) (focus must be on precautions
actually taken in light of suicide risk, not those that could have been taken)).
In his prior complaint, Wilson sought, as he does here, injunctive relief based on his
claim his serious medical need was being ignored by the same Defendant named in the instant
complaint. I found that while Wilson's medical condition was objectively serious, the care being
provided to him did not amount to deliberate indifference.

Wilson's

allegations and the

underlying, undisputed facts concerning the continuing care he is provided are unchanged from
thos.e established in Wilson 1. His assertion that he is receiving no medication for his lung
condition is unfounded and unsupported by the record; thus, there appears to be no change in the
status of the medical
constitutionally adequate.

care being provided

to Wilson,

which this Court found to be

The claim is barred by res judicata, but to the extent the complaint

raises claims regarding the quality of ongoing care, the record evidence demonstrates that care is

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constitutionally adequate.

The complaint must therefore be dismissed by separate Order which

follows.

oQ/JW~
Date

Paul W. Grimm
United States District Judge

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