United States District Court, D. South Carolina, Beaufort Division
James E. Mclean, Jr., #17701-058, Plaintiff,
United States of America, Defendant.
OPINION AND ORDER
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant's Motion to
Reconsider. ECF No. 41. Plaintiff filed a Response in
Opposition. ECF No. 43. Accordingly, the matter is ripe for
filed a Complaint pursuant to the Federal Tort Claims Act,
alleging that Defendant committed multiple acts of medical
malpractice during Plaintiff's incarceration in the
Bureau of Prisons (“BOP”). Accepting
Plaintiff's allegations as true for purposes of ruling on
the Motion to Dismiss, Plaintiff contends that he has
suffered from a rare bone disease known as Rickets, which is
a severe Vitamin D deficiency. ECF No. 1 at 1-2. Prior to
Plaintiff's incarceration, Plaintiff was prescribed high
doses (i.e., 50, 000 IU), of Vitamin D to be taken per day as
well as calcium and/or phosphate supplements. Id. at
2. “Because the treatment was effective, Plaintiff was
able to enjoy somewhat of a normal life, with an occasional
joint pain in a knee or an elbow.” Id.
“Plaintiff was able to enjoy physical activities such
as, but not limited to, martial arts, weight lifting,
extended walks in theme parks; boating, which includes a lot
of physical activity and standing; biking, and other physical
activities and labors.” Id.
November 22, 2002, Plaintiff was convicted of federal charges
and immediately incarcerated in a county jail facility,
presumably pending transfer to a BOP facility. Id.
Plaintiff did not receive proper medical treatment for his
Rickets in the county jail. Thereafter, Plaintiff was
transferred to a BOP facility-Federal Correctional
Institution (“FCI”) Gilmer-and was medically
interviewed regarding his health issues. Id. During
this medical interview, Plaintiff informed the medical staff
that he had Rickets and that he took high doses of Vitamin D
as well as calcium and phosphate for this condition.
Id. Medical staff obtained consent from Plaintiff to
review his prior medical records and prescribed him
appropriate doses of Vitamin D, calcium, and phosphate.
Id. A short time later, BOP staff reduced
Plaintiff's Vitamin D and eliminated his phosphate
prescription altogether. Id. In response, Plaintiff
asked his “orthopedic doctor, who has treated
Plaintiff's health issue rickets nearly all of his life,
” to comment on the reduction in Plaintiff's
medication. Id. at 3. This physician wrote Plaintiff
a letter in which he stated he did not think it was
appropriate to reduce Plaintiff's medications.
Id. Plaintiff forwarded that letter to BOP medical
staff; however, BOP medical staff ignored the letter and
continued to provide Plaintiff with an inappropriate amount
of Vitamin D and no phosphate. Id.
the reduction in Plaintiff's medications, he began
experiencing great pain in his knees and other joints.
Id. He informed BOP medical staff, but no change was
made in his medications. Id. In fact, after
Plaintiff returned from being “called to court for his
appeal, ” BOP's medical staff failed to renew
Plaintiff's medicine altogether. Id. As a
result, Plaintiff started having “great back and joint
pain, ” which he reported to BOP's medical staff.
Id. BOP's medical staff informed Plaintiff that
he needed to purchase these medications from the commissary.
Id. At some point, after Plaintiff went without his
medication for “a while” and explained that the
medications available at the commissary were insufficient,
Plaintiff's medicine was renewed, albeit still at an
insufficient level. Id.
result of Plaintiff's complaints about joint pain, BOP
medical staff took x-rays of Plaintiff's joints and
performed some lab work; however, Plaintiff's medications
were not increased. Id. at 4. Plaintiff was then
transferred to FCI-Butner, where he was again medically
interviewed. Id. Once again, Plaintiff informed
medical staff about his health issues and the medication he
previously was prescribed that was effective. Id.
Plaintiff was prescribed a calcium and Vitamin D combination
supplement; however, it was insufficiently dosed to benefit
Plaintiff's medical condition. Id. Plaintiff
continued to suffer from severe pain, despite his dosage of
Vitamin D being increased to 50, 000 IU once per week.
Id. at 5. After three years at FCI Butner, Plaintiff
was transferred to FCI Ashland and went without any
medication for “many days.” Id. Finally,
Plaintiff received some medication, though at an insufficient
dose. Id. Plaintiff reports that his “days and
nights were pain driven.” Id.
spending two years at FCI Ashland, Plaintiff was transferred
to his current location, FCI Estill. Once Plaintiff arrived
at FCI Estill, he was not provided any medication for his
Rickets for approximately one year and was told that he
needed to buy vitamins at the commissary. Id.
“Finally, after much pain and stress, Plaintiff was
able to see the doctor for chronic care.” Id.
During this appointment, Plaintiff informed the doctor about
his Rickets. Id. Although the doctor agreed to
prescribe the appropriate medication, Plaintiff was again
prescribed grossly insufficient quantities of Vitamin D and
no phosphate even though his lab results “clearly
indicate[d] the need for it.” Id. at 6.
alleges that “because [he] is not getting from outside
sources the proper Vitamin D and phosphate, his body [has] to
get calcium and/or phosphate from other sources (reserves)
within [his] body, and these other sources are his bone[s],
joints, and teeth.” Id. “Therefore,
Plaintiff's bone[s], joints and teeth are being
degenerated (eaten away).” Id. As of March
2017, Plaintiff has yet to receive the proper treatment for
his Rickets at any BOP location, and Plaintiff has suffered
great pain in all of his major joints. Id. In fact,
“Plaintiff's joints have lost full range and motion
to the point that he can't do any where (sic) near the
things that he use[d] to do.” Id. Plaintiff
alleges that he can't wash his feet, can't wash the
back of his neck, can't tie his shoes, can't stand
for long periods of time, and that he is in pain all day and
night. Id. at 6-7.
also alleges that he has “lost his teeth, except for
two teeth that are supporting a bridge in the front of his
mouth.” Id. at 7. Plaintiff contends that he
has been seeking treatment for these dental problems for many
years. Id. Because of this, eating and chewing
became very difficult, and Plaintiff was told he was placed
on a list for dentures. Id. “[A]fter being
assured that he would get the dentures quickly, in about the
month of July 2016, Plaintiff allowed the dentist to extract
all of his remaining teeth that had not already been
extracted or fallen out due to the lack of the [BOP] properly
treating his [Rickets], which was approximately 13
teeth.” Id. at 8. During this procedure,
Plaintiff experienced substantial pain, “which caused
Plaintiff so great of pain (sic) that he showered his face
with tears.” Id. at 9. Plaintiff later
overheard the dentist tell another person that he “had
a bad batch of Novocaine.” Id. at 10.
Plaintiff suffered other complications from the dental
procedure, including numbing under his right eye that
persisted for a month. Id. Furthermore, Plaintiff
alleges that he still has not received the dentures that he
was promised. Id. at 11-12.
remainder of Plaintiff's Complaint largely contains
detailed allegations of the severe pain that he is suffering
in various body parts due to BOP's failure to properly
treat his Rickets. However, Plaintiff acknowledges that he
was assigned a new doctor, Dr. Lepiane, by BOP after he filed
his administrative FTCA claim. Id. at 23. As a
result of Dr. Lepiane's treatment, Plaintiff's lab
tests were “very favorable.” Id. at
attached a number of exhibits to his Complaint, including
three medical affidavits from fellow inmates, which are
Affidavit of Harold C. Spears III, M.D.
C. Spears III worked in the medical field as a medical doctor
for approximately twenty-nine years, after receiving a
Bachelor's degree in Chemistry from Eckerd College and a
Medical degree from Emory University School of Medicine. ECF
No. 1-2 at 1. For the first three years of his practice, he
“attended a Family Practice Residency under the
auspices of the University of Florida's Jacksonville
Health Education Program at St. Vincent's Medical Center
Family Practice Group.” Id. Dr. Spears stated
that he has been board certified in Family Practice from 1982
to present and was board certified in Emergency Medicine from
1992 until 2002. Id. Dr. Spears stated that is
familiar with Plaintiff's medical issue, Vitamin D
resistant Rickets, “which is also termed
‘late-rickets or osteomalacia.'” Id.
Spears extensively outlined the medical records, lab reports,
medication summary, and x-ray records that he reviewed in
drafting his affidavit, and explained that these findings
were indicative of a Vitamin D deficiency. For example, Dr.
Spears “noticed that Plaintiff had a very high Alkaline
Phosphatase reading, along with its associated flag. . . .
Such a high Alkaline Phosphatase reading is indicative of an
increase in compensatory osteoblast activity (PTH-induced
increase in bone turnover); and such an indication suggests
that there is a deficiency of vitamin D, or that the current
treatment of vitamin D is insufficient or ineffective.”
Id. at 2 (internal quotation marks omitted). Dr.
Spears observed that Plaintiff had “no current
prescription for calcium or phosphate, and the current
prescription for vitamin D (i.e. take one 2000 IU table twice
per day) is insufficient.” Id. Therefore, Dr.
Spears opined that the radiographic findings, which indicate
fractures in Plaintiff's foot and “severe joint
degeneration in [Plaintiff's] elbows, knees, and ribs,
” “are a direct reflection of the FBOP's
inadequate and ineffective medical treatment plan for
Plaintiff's late rickets.” Id. at 1-2.
Therefore, Dr. Spears opined that BOP's medical care
“falls below the standard of medical practices/care for
such a medical condition.” Id. at 3. Dr.
Spears noted that the appropriate standard of care would be
to prescribe a large amount of Vitamin D, “in the range
of 50, 000 IU to 150, 000 IU.” Id. at 4.