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Frederick v. United States

United States District Court, D. South Carolina, Beaufort Division

March 14, 2016

Sam Frederick, Plaintiff,
v.
United States of America, Defendant.

REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

This action has been filed by the Plaintiff, pro se, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. ยง 2671, et. seq.. Plaintiff is an inmate with the Federal Bureau of Prisons, currently housed at the Federal Correctional Institution in Coleman, Florida. At the time Plaintiff filed this action he was confined at the Federal Correctional Institution in Butner, North Carolina, but the claims that give rise to this action occurred while Plaintiff was housed at the Federal Correctional Institution in Edgefield, South Carolina.

The Defendant filed a motion to dismiss or for summary judgment on November 30, 2015. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on December 1, 2015, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendant's motion may be granted, thereby ending his case. After receiving several extensions of time, Plaintiff filed a response in opposition to the Defendant's motion on February 23, 2016.

The Defendant's motion is now before the Court for disposition.[1]

Background and Evidence

Plaintiff alleges in his Verified Complaint[2] that while in the custody and care of the Bureau of Prisons he reported to a physician's assistant (Ryan) on January 30, 2013 for an "open wound complaint". Plaintiff alleges that the following day, January 31, 2013, he returned (apparently to medical) for a "dressing change", where the Nurse (Adams) said he had a skin tear to his right great toe. Plaintiff thereafter lists chronologically the care and treatment he received for this injury/condition through May 31, 2013 (totaling, according to the Complaint, forty-seven (47) medical visits during that four (4) month time period). See Complaint, pp. 4-7. Plaintiff alleges that the Defendant was negligent and grossly negligent in addressing his medical condition, and that the Defendant's misdiagnosis of his condition and delayed treatment of his great right toe resulted in him "losing his great right toe needlessly". Plaintiff seeks monetary damages. See generally, Plaintiff's Verified Complaint.

In support of summary judgment in the case, the Defendant has provided as exhibits copies of some four hundred twenty (420) pages of medical records detailing the medical care and treatment Plaintiff has received. The Defendant has also provided an affidavit from R. A. Blocker, a licensed physician in South Carolina and the clinical Director at FCI Edgefield, where Plaintiff was housed. Dr. Blocker attests that he is responsible for overseeing the medical care provided to inmates at FCI Edgefield, and that he is familiar with the Plaintiff, who was incarcerated at FCI Edgefield from June 13, 2012 through August 15, 2013.

Dr. Blocker attests that when Plaintiff arrived at FCI Edgefield on June 12, 2012, he had an initial health screen which noted several medical problems, including diabetes mellitus. Plaintiff did not voice any complaints or concerns about wounds on his toes at that time. Dr. Blocker attests that he thereafter saw the Plaintiff on June 20, 2012 in the chronic care clinic, where Plaintiff reported a history of diabetes since 2000, and that he had been on insulin since 2005. Labs were ordered, and Plaintiff was counseled on the importance of complying with treatment and his plan of care. Plaintiff was thereafter seen by medical staff on June 28, 2012 for a complaint of blisters on both great toes. No signs or symptoms of infection were noted, the blisters were debrided, and Acticoat and sterile dressings were applied. Plaintiff was seen for followup the following day, where his toes were cleaned and ointment and band-aids were applied. Again, there were no signs or symptoms of infection.

Dr. Blocker attests that Plaintiff was seen again by medical staff on July 3, 2012 for cleaning and a change of band-aids, at which time there were again no signs or symptoms of infection. Medical staff noted that Plaintiff was non-compliant with diabetic control and he was counseled on the importance of compliance with treatment and on how to access care. Dr. Block attests that Plaintiff received another follow-up on July 10, 2012, and that by July 7, 2012 examination by medical staff found that the wounds to both great toes were essentially healed with no signs or symptoms of infection. Plaintiff was instructed on a treatment plan, which included advice to purchase some lotion from the commissary for use on his feet daily.

Dr. Blocker attests that Plaintiff continued to be seen thereafter by medical staff for other medical issues, but that Plaintiff did not again complain about any wounds on his great toes until December 27, 2012, when he was seen at sick call about a callous on his right great toe that he had "picked off". Plaintiff's wound was cleaned and dressing was applied. Dr. Blocker attests that Plaintiff did not thereafter return to medical again until a month later, on January 30, 2013, where he complained that an area on his great right toe had "busted". Examination revealed that Plaintiff's right great toe had a linear wound with a pink base, with no malodor or drainage noted. Plaintiff's wound was cleaned, and Acticoat and sterile dressings were applied. It was also noted that Plaintiff was again non-compliant with his insulin regimen. Plaintiff was thereafter seen by medical staff ten (10) times over the next twenty days for wound care on his right toe. By March 1, 2013, examination of Plaintiff's great right toe revealed that the wound had essentially healed. Medical staff again noted on that date that Plaintiff was non-compliant with insulin and "all other medications". Plaintiff's medications were renewed, and he was again counseled on how to access care and of the importance of compliance with his treatment plan.

Dr. Blocker attests that Plaintiff was seen on March 15, 2013 for a follow-up, at which time examination revealed his right great toe had callous formation and no signs or symptoms of infection or cellulitis. Dr. Blocker attests that medical staff removed Plaintiff's callous, trimmed his toenail, cleaned his wound, and applied Acticoat, following which he was instructed to return for follow-up examination the next week. When Plaintiff was seen again by medical staff on March 18, 2013, examination of his right great toe revealed the wound was essentially healed with no open areas or wounds. Plaintiff was advised to use lotion on his feet three times a day and return to the clinic as needed.

Dr. Bocker attests that Plaintiff was seen by medical staff on April 9, 2013 for a complaint of an open wound on his right great toe. Examination revealed a wound on his great right toe with signs of infection and with a scant amount of drainage. The wound was cleaned, conservatively debrided, Acticoat and sterile dressings were applied, and Plaintiff was prescribed an antibiotic. Plaintiff was thereafter seen for follow-up wound care on numerous occasions over the course of the next few weeks, during which Plaintiff also had blood work, x-rays, and wound cultures taken for laboratory testing. On April 17, 2013 medical staff noted that Plaintiff's wound was improving. On May 6, 2013, lab results revealed that Plaintiff had a staff infection that was resistant to the antibiotic he was on, which was then discontinued and replaced with another medication.

Dr. Blocker attests that Plaintiff continued to be seen thereafter for wound care, including a radiological consult being requested on May 12, 2013. Dr. Blocker attests that he personally counseled Plaintiff on May 15, 2013 on the effects of wound healing and the compliance with taking insulin. A consultation was also written at that time to have Plaintiff examined by the consultant general surgeon during his next visit to the institution. Plaintiff thereafter continued to be seen at regular intervals (daily between May 19 and May 22, 2013), culminating in Plaintiff being evaluated by the consultant general surgeon on May 22, 2013. An x-ray was also taken of Plaintiff's right foot, and it was recommended that Plaintiff be examined by an orthopedic surgeon for further treatment.

Dr. Blocker attests that x-ray results from May 23, 2013 revealed soft tissue swelling with internal erosive changes and tiny fragments of bone in the distal tip of the great toe consistent with a history of osteomyelitis.[3] Plaintiff was thereafter seen four more times (daily from May 25, 2013) through May 28, 2013, when Plaintiff presented to medical staff advising that he had removed, on his own, two of his toenails from his right foot because they were pressing in his shoes when he walked. Dr. Blocker attests that medical staff stressed the dangers of getting ...


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