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McLean v. United States

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

February 12, 2019

James E. Mclean, Jr., #17701-058, Plaintiff,
United States of America, Defendant.



         This 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 review.


         I. Plaintiff's Complaint

         Plaintiff 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.

         On 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.

         After 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.

         As a 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.

         After 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.

         Plaintiff 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.

         Plaintiff 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.

         The 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 23-24.

         Plaintiff attached a number of exhibits to his Complaint, including three medical affidavits from fellow inmates, which are detailed below.

         A. Affidavit of Harold C. Spears III, M.D.

         Harold 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.

         Dr. 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. ...

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