J.F and D.F. Minors et al v. Correct Care Solutions, LLC et al
Filing
33
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/2/2017. (rss, Deputy Clerk)
" S
IN TIIF: lINITF:D STATF:S DISTRICT COURT
FOR TilE DISTRICT OF MARYLAND
. ,
Soutltem D;I';s;ou
'J1
.J.F. and n.F. t'.\' rd.
*
CRAIG and DEBORAH ANN BENTON,
Plaintiffs,
Case No.: G.JH-16-2177
*
\'.
CORRF:CT CARE SOLUTIONS,
et :II.,
LLC
*
*
Defendants.
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MF:MORANDUM
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OPINION
This case arises out of the death of Melissa Mac Benton ("Ms. Benton"). a 30-year-old
woman. while she was in the custody of the St. Mary's County Detention Center (the "Detention
Center')
Ms. Benton's minor children, .1.1'. and D.F .. by their guardians and next Ifiends Craig
and Deborah Ann Benton. and Ms. Benton's adult daughter. Brittany Fleshman. bring suit
against Correct Care Solutions. LLC ("CCS"). Conmed Ilealth Care Management. Inc.
("Conmed"). and individual health care stan'l (collectively, "Ilealth Care Provider Defendants").
as well as individual correctional stan~ (collectively. "Correctional Defendants") at the Detention
I In addition
to CCS and Conmcd. Plaintiffs bring suit against 12 individual health care stalTmcmhcrs:
Dr. Vabian
Lcwitt Padell. Certified Nursing Assistant C'"CN"")/Ccrtilied Medication Technician ("CMT") James Cawley.
Registered Nurse (""R.N"') Melissa "enderson. Physician"s Assistant r"p.A.") Nancy Sidorowicz. eNi\ Penny King.
eNA Ashley Sampson. CNA Kristy Randolph. eNA Latoya Beaulllont. eNA Brandoll lIossclrodc. eNA Tara
King. Licensed Clinical Social Worker ("I.C5W")
Lisa Winkler. and R.N. Melissa Perdue. (individuals collectivcly
are "Individual
Ilcalth Care Provider Defendants:"
together with CCS and COllmed they arc "I fealth Carc Provider
Defendants.").
~ Plaintiffs also bring suit against 14 correctional stalTmemhers:
Corporal Gretchen Irby. Officcr Monica Thomas.
Officer Jason Smith. Officcr Janc Thompson. Officer Sehijc Boyd. Oflicer Michael Laballowski. Jr.. Officer
Catherinc Poole. Officcr Benjamin Luffey. Corporal Daniel Catlett. Officer Maurice Gogul. CFe Sherry lIarrison.
Inmate Services Coordinator
Casey Long. Sgl. Bruce Raley. and Sgt. Anthony Fel1\vick. (collectively
"Correctional
Defendants").
Center. alleging claims under 42 U.S.c. ~ 1983 and Maryland state law. Presently pending
bellJre thc Court is a Motion to Dismiss by Individual Defendants 1'. King. Ilossclrodc. T. King.
Randolph. Beaumont. and Winkler. ECF No. 14. and a separate Motion to Dismiss by Individual
Defendant Cawley. ECF No. 21.
0
hearing is necessary. See Loc. R. 105.6. For the lollowing
reasons. DetCndants' Motions to Dismiss arc granted. in part. and denied. in part.
I.
BACKGROUND
Melissa Mac Benton entered the St. Mary's Detention Center on October 8. 2013 to await
transfer to the Maryland Department of Corrections to begin serving a seven year sentence. ECF
NO.4 '146. At the time. Ms. Benton was 36 years old and sunered li'OJllvarious drug addictions.
bipolar disorder. unexplained weight loss. and a host of health issues. !d ~ 45. When Ms. Benton
arrived at the Detention Center. Certitied Nursing Assistant (""CNA") Penny King conducted an
intake examination:'
ECF NO.4
'i 48.
Ms. King noted that Ms. Benton suffered Irom high blood
prcssure. bipolar disorder. unexplained weight loss. an enlarged colon. and drug addiction. Id
Ms. King further noted that Ms. Benton was supposed to receive tollow-up medical care Itll' her
enlarged colon. Id. Ms. King also reported that Ms. Benton was an intravenous drug user and had
taken unprescribed Oxycodone the previous day. Id Ms. King's report stated that Ms. Benton
"will be placed on Benzo protocol4 per Conmed:' Id.
On or about October 9. 2013. Ms. Benton underwent a second health assessment by
members of the medical stan: a Suicide Prevention Screening by Defendant Licensed Clinical
Social Worker (""I.CSW") Winkler. and an interview bv the inmate services coordinator. ECF
J
While she was in custody. Ms. Bentoll received care from individuals employed by Defendants Correct Care
Solutions
("CCS")
and COllmcd
Health
Management.
is a Kansas limited
liability
company
that provides
EeF NO.4
all times relevant
to the action.
and provide
.j
at
7. At
ces
this protocol
for Biotcchnology
Center.
refers to a method of withdra\val
Information.
Il'il/u/l'mnl/
According
to the Amended
Conmcd.
i\/1I1111geme111.
(last visited February 21. 2(17).
2
Complaint.
a Maryland
and COl1mcd had contracts to employ
health care services to inmates at the Detention
In this context.
Ccntcr
Inc. C'ConlTlcd").
health care to inmates through
ces
corporation.
health care providers
/d.
management
for users of bcnzodiazepines.
https://\v\\w.ncbi.nlm.nih.gov/booksINBKJ
National
10652/
NO.4 at 16. The health assessment
heroin. Xanax. and Oxycodone
Physician's
noted that Ms. Renton had a long history of addiction
and was currently experiencing
Orders signed at the time stated that stafTwere
deterioration
occurs such as unstable blood pressure ...
~ 51. Following
immediate
the Suicide Prevention
Screening.
action for Ms. Benton. but scheduled
the week of October
vitamins.
Amended
Complaint
persistent
her complaints
identifies
Id.
vomiting. or dehydration'"
her Ii)!"a further mental health assessment
ECF No.4'1
I.ibrium.
fiJr
withhcld
11.2013.
vomiting and tremors.
without examination.
Id.
Ms. Benton was to
cramps. yet no Imodium was
fiJr two days. Id. '157. Clonidine
only once. Id. '154. Ms. Benton infilfllled medical staffofher
were dismissed
however. the
in which Ms. Renton received sporadic
or none at all. Id. '154. 55. 57. 67. For example.
was allegedly
Phenergan.
53. Despite these instructions.
a number of instances
Id. '155. I'henergan
By October
49. 51.
LCSW Winkler did not recommend
receive 4 mg of Imodium three times a day fiJr her abdominal
administered
'I'i
to "notify clinician if possible
detox protocol. she was prescribed
and Imodium.'
doses of these medications.
administered.
Id.
14.2013.
As part of Ms. l3enton's
Clonidine.
opioid withdrawal.
to
,I~
Ms. l3enton began experiencing
was
stomach pains. but
55. 58.
severe symptoms.
including
ECF No. 4 ~ 56. lIer blood pressure had c1evated to 153/1 06. Id.
to receive 0.1 mg of Clonidine
repeat
'1 57.
Although
Ms. Benton was supposed
pressure.
that order was not carried out. Id. ~ 57. Ms. Benton refused all of her meals on October
12 and 13. 2013. Id. ~ 58. She also complained
of chest pain and suffered
Her pulse was 48 beats per minute and her oxygen saturation
low level. Id. Despite Ms. Benton's
condition.
to treat the high blood
fi'om diarrhea.
was 90%. indicating
the health and correctional
Id. ~ 59.
an abnormally
stafTsimply
told her
.5 According 10 the Complaint. Libriurn is used to treat anxiety and acute \vithdrawal: Phernergall is used to treat
nausea and vomiting. Clonidinc is used to treat high blood pressure: Imodiulll is used 10 treat diarrhea. ECF No. 4 ~
53.
3
..to relax:'
and gave her some "Gatorade
to hydrate:'
October 9th. iI' Ms. Benton' s oxygen saturation
Order Ihlln
Id. Under the Physieian's
level lell below 92%. care providcrs
to call 91 I. Id. ~ 51. But no onc did.
instructed
A numbcr of Detcntion
Ccntcr hcalth care providers
and correctional
ofliccrs conducted
numerous
cell checks on Ms. Benton over the course of two days. and witnessed
profusely.
having abdominal
cramps. complaining
ECI' NO.4
n 60-62.
However.
64-69.
Benton received additional
CNA Beaumont
checked
to ensure that Ms.
vital signs and noted that Ms. Benton's
'i
Cawley and CNA Hosselrode
least twice" and witnessed
her "vomiting
both administered
profusely.
but failed to call li)r medical help. Id
On the morning of October
deliver her medication.
ECI' NO.4
13.2013.
'1 71.
having abdominal
to Ms. Benton "at
cramps. and refusing all
'i~
65-66.
Delendant
Cawley entered Ms. Benton's
cell to
Id. She reached out and crushed the cups he was
to hand hcr. Id Ms. Benton linally took the medication.
and began rocking back and Il)rth. Id. Mr. Cawley allegedly
attention
medication
Id. ~ 63. On October
Mr. Cawley stated that Ms. Benton "did not seem to see
him" and was in "an altered mental status:'
attempting
pulse was a
62: lOCI' No. 4-4 at 13. 176 Ms. Benton asked if
she could go to the hospital. but her request was denied as "not indicated:'
12. CNA/CvIT
See
Id. On October 12. 2013. Defendant
medical care or intervention.
Ms. Benton's
her "vomiting
of chest pains. and refusing all meals:'
none of them took any measures
low" 36 beats per minute. Id.
"dangerously
meals:'
wcrc
lor Ms. Benton. but rather. issued a memorandum
thcn grabbed her mattress
made no efforts to obtain medical
..that Ms. Benton not be allowed out
of her cell. except li)r her shower. because she was unsteady on her leet:' Id By October
Pin cites to documents liIed on the COUl1's electronic tiling system (CMIECF)
by that system.
h
4
13. Ms.
refer to the page numbers generated
Benton's
blood pressure bad reached
Id'i
1631109 and her heart rate was 106 beats per minute.
73.
On October
13.2013
at approximately
5:55PM. Ms. Benton was found non-responsive
her cell. ECF No. 4 ~ 79. She was not breathing
transported
to St. Mary's
autopsy report coneluded
and hypertensive
death:'
Ilospital
in
and had no pulse. Id Ms. Benton was
a half hour later. where she was pronounced
that Ms. Benton "died of cardiac arrhythmia
dead.ld
The
due to myocardial
heart disease. Chronic drug and aleohol abuse were contributing
fibrosis
causes of
ECF No. 4-4 at 16.
Melissa Mae Benton's
minor children . .1.1'. and D.F .. bring this action by thcir guardians
and ncxt friends. Craig and Deborah Benton. Melissa' s parents. Also named as a Plainti ITis
Brittany fleshman.
Melissa's
Eighth and/or Fourteenth
adult daughter.
Amendment
The Plaintiffs assert claims ftlr: I) negligence.
violations
under 42 U.S.c.
death against the Health Care Provider Defendants.
Amendment
violations
under 42 U.S.c.
against the Correctional
Plaintiffs'
Defendants.
waiver of arbitration
*
Resolution
ornce
1983. and Ill) wrongful
as well as IV) Eighth and/or Fourteenth
1983. V) gross negligence.
ECF NO.4. Accompanying
before the Maryland
Office. ECF No. 4-3. an Ordcr of Transler
*
II)
and VI) wrongful
Plaintiffs'
Health Care Alternative
fi'om thc Maryland
Complaint
ofQ.ualified
is
Disputc Rcsolution
Health Care Alternative
to this Court. lOCI' No. 4-5. and a Certificate
death
Dispute
Expert and Report
from Dr. Robert L. Cohen. ECF No. 4-4.
Individual
Defendants
1'. King. Hosselrode.
filed a Motion to Dismiss Plaintiffs'
James Cawley filed a separate
All other Defendants
Amended
T. King. Randolph.
Complaint.
ECF No. 14. Individual
Motion to Dismiss Plaintiffs'
Amended
have filed an Answer to the Amended
Complaint.
5
Beaumont.
Complaint.
and Winkler
Defendant
lOCI' No. 21.
ECF Nos. 15. 16. and 32.
Plaintiffs filed a Consolidated Response in Opposition on August 26. 2016. ECF No. 22.
Defendants filed their Reply on September 12.2016. ECF No. 23. Defendants request that the
Court dismiss Counts II and III against P. King. Hosselrode. T. King. Randolph. Cawley. and
Beaumont.) and dismiss all counts against Lisa Winkler. The Motions to Dismiss arc now ready
for review.
II.
STANI>ARI> OF REVIEW
Defendants may ..test the adequacy of a complaint by way of a motion to dismiss under
Rule 12(b)(6):' Prelieh \'. Med Res.. llle.. 813 F. Supp. 2d 654. 660 (D. Md. 2(11) (citing
Germl/Ill'. Fox. 267 F. App'x 23 J. 233 (4th Cir. 2(08).
Motions to dismiss for failure to state a
claim do "not resolvc contests surrounding the facts. the merits of a claim. or the applicability of
defenses:' Prelieh. 813 F. Supp. 2d at 660 (citing E,hrardl
I'.
City orGoldshoro.
178 F.3d 231.
243 (4th Cir. 1999). To overcome a Rule 12(b)(6) motion. a complaint must allege enough facts
to state a plausible claim for relief Ashcrofi \'. hlhl/I. 556 U.S. 662. 678 (2009). A claim is
plausible when ..the plaintiff pleads factual content that allows the Court to draw the reasonable
infcrenee that the defendant is liable for the misconduct alleged:' Id
In evaluating the sufficiency of the Plaintiffs' claims. the Court accepts factual
allegations in the complaint as true and construes the factual allegations in the light most
favorable to the Plaintiff See Alhright
1".
()Jil-er. 510 U.S. 266. 268 (1994): Ll/mheth
I'.
I3d or
Comm 'rs ofD{{\'it/soll Oy.. 407 F.3d 266. 268 (4th Cir. 2(05). However. the complaint must
contain more than "legal conclusions. elements of a cause of action. and bare assertions dcvoid
These Defendants originally asked the Court to dismiss all counts against them. ECF No. 14: ECF No. 21.
However. ill their Reply. ECF No. 23. Defendants "collccdc[dJ that Plaintiff" were not required to submit claims
against the CNA/CMT Defendants to the Ileahh Claims Altemative Dispute Resolution Ortiec:" as relevant to the
survival actiort/negligcnce claim in Count I. Therefore. the analysis here addresses only the ~ 1983 claim and
7
wrongflll death claim (Counts II and III) as to Defendants P. King. Ilossclrode. T. King. Randolph. Cawley. and
Beaumont.
.
6
of furthcr factual enhancemenl." Nell/e/ Che\Tole/.
LId \', ConslIlI/l!/',,[filirs,coll/,
Inc,. 591 FJd
250.255 (4th Cir. 2009), The court should not aflirm a motion to dismiss fiJI' failurc to statc a
claim for rclicf unlcss "it is clear that no relief could bc granted under any set of facts that could
bc proved consistcnt with the allegations:' GE In\'. I'r;m/e
I'I"cell/el1/ I'"r/nl!/'s /I \'. l'"rkl!/'.247
FJd 543. 548 (4th Cir. 2001) (citing 11..1. Inc. \'. Nor/lnl'es/el'11 Bell Td Co, 492 U,S. 229. 24950).
III.
ANALYSIS
A. Constitutional
Claims
In Count II of the Complaint. Plaintiffs assert violations of the Eighth and/or Fourteenth
Amendment of the United States Constitution pursuant to 42 U,S,c.
* 1983, Section 1983
provides lor certain governmental liability resulting from constitutional violations. stating that:
Every person who. under color of any statute. ordinancc.
regulation. custom. or usage. of any Statc or Territory or the
District of Columbia. subjects. or causes to be subjected. any
citizen of the United States or other person within the jurisdiction
thereof to the dcprivation of any rights. privileges. or immunities
sceurcd by the Constitution and laws. shall be liable to thc party
injured in an action at law. suit in cquity. or other propcr
procccding , , ,
42 U.S.c.
* 1983, The Eighth Amcndment.
spccifically. prohibits "cruel and unusual
punishment:' such as those involving the "unncccssary and wanton intliction of pain:' Gregg \'.
Georg;".
428 U.S. 153. 173 (1976), Thc Suprcmc Court of thc Unitcd Statcs has hcld that
"deliberatc indillerence to serious mcdical needs of prisoners" constitutes wanton intliction of
pain. regardless of whether thc indillercncc is "manilested by prison doctors in their response to
the prisoner's nceds or by prison guards in intcntionally dcnying or delaying access to medical
care or intentionally interfering with the treatmcnt once prescribed:' Es/elle \'. Gall/hie. 429 U.S.
97.104-05
(1976), Thus. thc Individual Defendants argue principally that Plaintiffs' allegations
7
regarding their conduct do not "risc to the level of de libcrate indifference'" ECF No. 14-1 at 6;
ECF No. 21-1 at 6.
Not every allcgation of inadequate medical trcatment establishes a claim undcr the Eighth
Amendment. Estelle. 429 U.S. at 105. "Deliberate indifferencc is a vcry high standard - a
showing of mere ncgligcnce will not mcet it." Shieldl'
1".
Prince George's Cly.. No. GJII-15-
1736.2016 WL 4581327. at *6 (D. Md. Sept. I. 2(16) (quoting Grayson \'. Peed. 195 F.3d 692.
695 (4th Cir. 1999)). Nor will an "inadvcrtcnt failure to providc adequate mcdical care" surtice.
ESlelle. 429 U.S. at 105. To prevail on a "dclibcrate indifference" claim. Plaintiffmust provc two
clements: ..( 1) that the deprivation of a basic human nced. as an objective matter. was
surticiently serious: and (2) that. when viewed Irom a subjective perspectivc. prison orticials
acted with a sufficiently culpable statc of mind'" King
1".
United Siaies. 536 F. App'x 358. 360
(4th Cir. 2013). Additionally. "[110 constitutc deliberatc indifference to a serious mcdical nced .
.the trcatment la prisoner receives] must be so grossly incompetent. inadequate. or excessive as
to shock the conscience or to be intolcrable to fundamental lairncss .... Id at 361 (alteration in
original).
The Fourth Circuit has explaincd that ..two slightly different aspccts of an otlicial's state
of mind" must be shown in order to satisfy the subjcctive component ofdelibcratc indiffcrencc.
Iko \'. Shrel'e. 535 F.3d 225. 241 (4th Cir. 20(8). First. the prison otlicialmust
have known ofa
scrious risk of harm. }'oung \'. City (IrAti. Ranier. 238 F.3d 567. 575-76 (4th Cir. 20(1). Second.
the otliccr must have also recognizcd that his or her actions wcrc insufficient or "inappropriatc in
light of the risk'" Parrish ex rei. Lee
I'.
Cle\'elwul. 372 F.3d 294. 303 (4th Cir. 2(04). It is not
cnough ..that the officcrs should haw recognized" thc risk of harm or inadequacy of thcir
8
actions: they actually must have pcrccivcd thc risk.!d
(citing Rich \'. 8mC<'. 129 F.3d 336. 340
n.2 (4th Cir. 1997)) (emphasis in original).
i. Defendant LCSW Lisa Winkler
Defendants contend that Plaintiffs failed to cstablish dcliberate indifferencc on the part of
clinical social workcr Lisa Winkler. ECF No. 14-1 at 14-15. They claim that "Ms. Winkler is
alleged to have had one interaction with Ms. Benton several days before her death:' and "Ms.
Winkler is not alleged to have witnessed any signs or symptoms indicating that Ms. Benton had a
serious medical need:' /d. at IS. Indeed. the Amended Complaint provides only that Ms. Winkler
conducted a single suicide prevention screening on October 9. 2013. several days before Ms.
Benton's death. Although the screening indicated that "Ms. Benton had a psychiatric history and
a history of drug or aleohol abuse:' the Amended Complaint provides no other facts indicating
an objectively serious medical need at that timeor Ms. Winkler's subjective knowledge and
disregarding of that risk. See lion/in-Coone)' \'. Frederick 0)'.. Md.. No. CIY. WDQ-13-1731.
2014 WL 576373. at
* 10 (D.
Md. Feb. 11. 2014) (dismissing deliberate indifference claim
against prison nurse where plaintilTpleaded insufficient facts showing nurse had subjcctive
knowledgc ofinmate's
suicide risk when she evaluated him): Brown \'. Harris. 240 F.3d 383.
390 (4th Cir. 2001) (noting that court must locus on the risk of which the official actually knew.
and what precautions were taken in response to that risk. not those that "could have been taken").
Thus. because Plaintiffs havc failed to plead suflicicnt facts showing deliberate indinerence on
the part of Defendant Winkler. the
ii. Defendants
Cawley
* 1983 claims in Count II against her must be dismissed.
I'. King, Beaumont,
Uosselrode, T. King, Randolph, and
With respect to the remaining Defendants, Plaintiffs have adequately stated a claim.
Delendant Penny King conducted an intake examination of Ms. Benton. ECF No. 4 ~ 48. and
9
also revicwed thc suicidc prcvention scrccning. Id. '1 50. Hcncc. Ms. King had knowledgc that
Ms. Benton "suffercd from high blood prcssure. bipolar disorder. uncxplaincd wcight loss. an
cnlargcd colon. and drug addiction:' and also that she "nccdcd follow-up medical carc for hcr
enlargcd colon:' Id. '148. Ms. King was also aware that Ms. Benton was cxperiencing
withdrawal. as she placed Ms. Bcnton on a "l3cnzo protocol:. Id. Additionally. Ms. King .'did
dctox chccks on and/or administcrcd medications to Ms. Benton during hcr incarccration at thc
Dctcntion Ccntcr and kncw shc was dctoxing. vomiting profuscly. refusing meals and had
unstable vital signs:' Id. ~ 82. Thercfore. Plaintiffs have allegcd sufficient facts "from which the
Court can infer that [Defendant P. Kingl had actual knowledgc oflMs. Bcnton'sl scrious
medicalnecd:'
See lIanlin-Cooney. 2014 WI. 576373. at
additionalmcdical
* 10. The
purported failurc to call fiJr
help was inappropriate in light of this risk. See id.
Defendant Latoya Bcaumont reported that Ms. Bcnton had clevatcd blood pressurc of
153/106 on Octobcr 11. 20 13. ECF No. 4 ~ 57. Dcspite Physician's Ordcrs that Ms. Bcnton was
to rcccivc 0.1 mg of Clonidinc for e1cvated blood pressurc ... that order was not carricd out:' Id.
Ms. Beaumont also conducted a detox check on Ms. Benton and took her vital signs thc next day.
Ms. Bcnton's blood prcssurc had risen to 167/92 and her pulsc had droppcd to 36 hcats per
minutc. Id. ~ 62. According to Plaintiffs' submittcd cxpert rcport .. '[aJ heart ratc of 36/minutc
represents a life-threatening condition:'
ECF No. 4-4 at 17. Alier notifying anothcr nurse ... thc
only mcdical care noted by Defcndant Bcaumont was a second dosc of Phencrgan and to
'cncourage' fluids:. ECF No. 4 ~ 62. Plaintiffs furthcr allege that Ms. Bcaumont "did dctox
checks on and/or administercd mcdications to Ms. Bcnton during hcr incarccration at thc
Dctcntion Ccnter and kncw she was detoxing. vomiting profusely. rcfusing mcals and had
unstable vital signs:. Id. '182. Bccause Ms. Bcaumont allegedly witncssed thcsc objectively
10
serious symptoms.
including
the deterioration
of Ms. Benton's
condition.
action to seek help for Ms. Benton. Plaintiffs state a claim for deliberate
See McKissick
CIY. 4 York. No. I :09-CV-1840.
Defendant
Beaumont.
* 14 (M.D.
I'a. Oct. 25. 20 II) (finding sufficient
I'.
evidence
prison nurse delayed or failed to respond to inmatc's
but took no further
indiffercnce
2011 WL 5117621.
for Eighth Amendmcnt
complaints
against
as his condition
at
claim whcrc
was
"dramatieall y worsening").
Next. the Amended
medication
Complaint
allcges that Dcfendant
Brandon Ilosscirode
to Ms. Bcnton at Icast twice during thc cvening. and despitc the fact that Ms. Bcnton
was vomiting
prolusely.
having abdominal
cramps. and refusing allmcals.
did nothing to see that Ms. Benton rcceivcd any additionalmcdical
NO.4 '166. Thc Complaint
administcrcd
furthcr states that Defendant
mcdications
knew she was dctoxing.
82. Thcsc allcgations
consciously
vomiting
profusely.
Plaintiffs
at thc Dctcntion
Ccntcr and
rcfusing mcals and had unstablc vital signs:'
to Dcfcndants
!d. fI
Kristy Randolph and Tara King. "Bccausc
* I 0 (citing
Ilosselrodc.
Randolph.
and King.
Ne\l"hrollgh v. l'iedlllol1/ Reg '/.Iail Aulh.. 822
(finding claim stat cd againstmedicaltcchnician
inmatc was going through withdrawal
medication):
ECF
I-!osselrode "did dctox checks on and/or
have statcd a claim against Dcfendants
F. Supp. 2d 558. 578 (E.D. Va. 2011ยป
appropriate
Hosselrode
medical carc can givc rise to a plausible claim of dclibcratc
!Ianlin-Cooney. 2014 WL 576373. at
rccognized
Defendant
carc or intcrvention:'
to Ms. Bcnton during hcr incarceration
are also attributcd
withholding
indiffercnce:'
tcchnician
"administered
but knowingly
whcrc
did not prcscribc
see a/so De 'Ionia v. Johllson. 708 F.3d 520. 526 (4th Cir. 2013)
(rcversing
dismissal
of Eighth Amendment
claim. noting that "just bccause [prison stanl have
providcd
[thc inmate
I with
.. it docs not f()lIow that they have necessarily
providcd
hcr with conslillllirJllally adeqllale treatmcnt")
sOllie treatmcnt.
II
(cmphasis
in original).
Finally. Defendant Cawley argues that Plaintiffs' claims against him must lail because
Plaintiffs fail to allege that he "knew ofa substantial risk of harm" or recognized that his actions
"were inappropriate in light of a known risk:' ECF No. 21-1 at 10. These arguments arc not
persuasive. The Amended Complaint includes several allegations regarding Defendant Cawley.
First. Mr. Cawley allegedly advised Delendant Harrison that Ms. Benton "is just going threw
[sic] withdrawals and her body is going to ache," and Ms. Benton was subsequently given
"Gatorade to hydrate:' ECI' NO.4
'1 50. Second.
on October 12.2013. Delendant Cawley
"administered medication to Ms. Benton at least twice during the day. and despite the lact that
Ms. Benton was vomiting profusely. having abdominal cramps. and refusing all meals.
Defendant Cawley did nothing to sec that Ms. Benton received any additional medical care or
intervention:'
Id ~ 65. Third. Defendant Cawley had substantial interaction with Ms. Benton on
the morning of her death. Id
'\71.
Mr. Cawley entered Ms. Benton's cell to dcliver medication.
Cawley reported that Ms. Benton "did not seem to sec him" and was in an "altered mental
status:' Id When he finally got her attention. Ms. Benton reached out and crushed both cups he
was trying to give her. Id She eventually took the medication. then grabbed her mattress and
began rocking back and forth. 1<1.
Plaintiffs also contend that Mr. Cawley. despite knowing of her condition and attendant
mental state. did nothing to provide further assistance or call for a doctor. Eel' No. 4 ~ 71.
Instead. Mr. Cawley "issued a memorandum that Ms. Benton not be allowed out of her cell.
except for her shower. because she was unsteady on her feet during her detox protocol:' 1<1. The
Amended Complaint further alleges that Mr. Cawley witnessed Ms. Benton vomiting and
refusing to cat during detox checks. but failed to obtain medical help. Id
'182.
Indeed. the only
reasonable inference here is that Mr. Cawley observed. first-hand. Ms. Benton's condition
12
worsening
rather than improving.
Accordingly.
Cawley was aware of an objectively
Plaintiffs have alleged suflicient
serious medical condition
facts that Mr.
and also rccognized
that his
actions were inadequate.
B. State Law Claims
The state law claims for survival action/negligence
I and III against Defendant
Health Care Malpractice
Winkler shall be dismissed.
Claims Act (HCMCA).
of a qualified
and that the departure
care. As Plaintiff:,'
"ifthe
from standards
contains
of the Maryland
of care is the proximate
I). Dr. Cohen's
no actual allegations
fllr
claimant or plaintiff fails to file a
expert with the Director attesting to departure
Code. Cts. & .Iud. Proc. ~ 3-2A-04(B)(
of other defendants.
Under the requirements
a claim filed against a health care provider
damage due to a medical action shall be dismissed
certificate
and wrongfiil death asserted in Counts
trom standards
of care.
cause of the alleged injury'"
Md.
report. while naming Ms. Winkler in a list
describing
her departure
from the standard of
expert report does not attest to a breach of the standard of care attributable
Defendant
Winkler.
Plaintiffs
defendant.
Compliance
to
have failed to comply with the HCMCA with respect to this
with HCMCA
Kimhle \'. Rajl'al. No. RWT IICVI457.
is a conditional
precedent
2012 WL 3263754.
to filing in federal court. See
at *4 (D. Md. Aug. 8. 2012) (citing
Dal'i.IIJI1l'.Sinai 110.11'. o(Baltimore. fnc .. 617 F.2d 361. 362 (4th Cir. 1980)).
Moreover.
in Maryland.
a wrongtiil death action "may be maintained
whose wrongful
(D. Md. 2011) (citing Md,Code.
Grinage \'. Mylan Pharm .. fnc .. 840 F. Supp.
act causes the death of another'"
2d 862, 872-73
only states a claim fill' wrongful
against a person
CIs. & .Iud. I'roc. ~ 3-902(a)).
death if a "wrongful
act" occurred.
Thus, a plaintiff
!d. (citing Georgia-Pacific
Corp. \'. Benjamin. 394 Md. 59. 80 n.6 (2006). A wrongful act is defined as "an act. neglect. or
default including
a felonious
act which would have entitled the party injured to maintain an
13
action and recover damages ifdeath
had not cnsued"/d.
(citing Md.Code. Cts. & .Iud. Proc. ~ 3-
901 (e)). Herc. Plainti ITs havc not pleaded suflicicnt facts that Dcfendant Winkler committed a
"wrongful act:' Thus. Counts I and III against Defendant Winkler are dismissed.
Howcvcr. Dcfendants havc conceded that PlaintitTs wcrc not required to tile an expert
report to accompany
the Cel1iticate of Merit with respect to Individual Defendants
P. King.
Beaumont. Hossclrode. T. King. Randolph. and Cawley. as they are CNAs and CMTs not
detined as "health care providers"
within the meaning of the HCMCA. ECr No. 23 at 1: see ,,/so
Ecr No. 22 at 11-14. Thus. the state law claims in Counts 1and III will proceed against these
Detcndants.
IV.
CONCLUSION
For the foregoing reasons. Detcndants'
Motions to Dismiss are granted. in part. denied. in
part. All claims arc dismissed as to Defendant Winkler. but shall proceed against all other
Defcndants.
A separate Order shall issue.
Date: March ~ 2017
George.l. Hazcl
Unitcd States District Judge
14
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