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)

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" 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. * * * * * * * * MF:MORANDUM * * * * * * 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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