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Juan Manuel Garcia-Merino v. Patti Irvin

March 15, 2011


The opinion of the court was delivered by: Stephen V. Wilson United States District Judge



Juan Manuel Garcia-Merino ("Plaintiff") filed this action alleging a violation of his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff's claim arises out of the alleged failure of a primary care physician, Dr. Jesus Fernandez, and an administrator, Stacey Allen, (collectively, "Defendants") to schedule a surgery allegedly required to repair a fracture in Plaintiff's hand while Plaintiff was incarcerated at the Federal Correctional Institute I, in Victorville, California ("FCI 1"). Plaintiff also named other defendants; however, the Court previously granted summary judgment on qualified immunity grounds to these defendants. Stacey Allen was also granted summary judgment on qualified immunity grounds only with respect to his actions taken prior to his investigation of Plaintiff's December 28, 2005 administrative complaint.

The Court held a four-day trial on November 16-17, 2010 and December 9-10, 2010. Having heard the evidence at trial, reviewed the submitted direct examination testimony, and examined the record, the Court finds that Defendants did not violate Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment.

The essence of Plaintiff's claim is that Defendants caused delays in providing his prescribed hand surgery, resulting in unnecessary pain and permanent damage to his hand. Plaintiff claims that Dr. Fernandez permanently deferred to a specialist's (Dr. Puri's) recommendation for surgery, and failed to oversee that the surgery took place in a timely manner. The Court finds that initially, Dr. Fernandez did defer to the recommendation for surgery, though he was aware that treating Plaintiff with a splint and painkillers would be medically acceptable. However, Dr. Fernandez did not exhibit deliberate indifference toward Plaintiff because Dr. Fernandez, following established protocol, forwarded surgery requests to a third party scheduler. Plaintiff has not demonstrated that Dr. Fernandez had authority to follow up and ensure the surgery had taken place once Dr. Fernandez forwarded surgery requests for scheduling.

Even if Dr. Fernandez had authority to ensure surgeries had in fact taken place once he approved and forwarded a surgery recommendation, Plaintiff has not shown he was not deliberately indifferent. Dr. Fernandez continued to send Plaintiff to hand specialists for evaluation and surgery once he discovered that the original surgery had not been properly scheduled. However, no other specialist recommended surgery for Plaintiff. This confirmed Dr. Fernandez's own medical opinion that a splint and painkillers were medically acceptable treatment, and Dr. Fernandez continued to treat Plaintiff in a medically acceptable manner while Plaintiff was at FCI

1. Plaintiff has not met his burden in showing Dr. Fernandez's method of treatment was medically unacceptable.

As to Defendant Allen, Plaintiff essentially alleges that Allen caused a delay in his prescribed surgery by failing to oversee that he received the surgery once it was scheduled. However, Plaintiff has not demonstrated that surgery was his prescribed treatment by the time Allen became involved. Allen wrote a memorandum concerning Plaintiff's medical idle status and worker's compensation in December 2005, well after the alleged delays in surgery. Plaintiff has not shown that Allen had a responsibility to ensure that Plaintiff received surgery in this memorandum. Furthermore, Plaintiff has not shown that Allen's memorandum suggests he was deliberately indifferent to Plaintiff's medical needs.

Finally, even if Plaintiff had demonstrated that Defendants were deliberately indifferent to his serious medical needs, Plaintiff has not demonstrated that Defendants caused him any harm. Any pain Plaintiff experienced was treated with painkillers and a necessary part of the healing process. Furthermore, Plaintiff's hand healed in a medically acceptable fashion, without permanent damage.


Plaintiff was incarcerated at FCI 1 from November 8, 2002 through February 9, 2007. Plaintiff injured the base of his ring finger in his right hand on May 14, 2005. Plaintiff went to the prison medical facility the same day, where a physician's assistant, Ms. Lilia Castillo, ordered x-rays, wrapped the hand with an elastic bandage, and gave Plaintiff a prescription for Ibuprofen for his pain. The physician assistant's injury assessment report noted the "need to rule out a fracture" of Plaintiff's hand. One or two days later, Defendant Dr. Fernandez, the treating physician on call, reviewed and approved the injury assessment report and signed off on the treatment, including the need for x-rays.*fn1

During the next ten days following the injury, Plaintiff informed Mr. Louis Sterling, an Assistant Health Services Administrator,*fn2 on three occasions that Plaintiff needed an x-ray on his hand. Plaintiff also discussed his injury with Dr. Fernandez following the injury. Dr. Fernandez told Plaintiff to talk to the Physician's Assistant at Health Services. Plaintiff went to Health Services regularly during this two-week period.

Officials in Health Services took x-rays of Plaintiff's hand on May 24, 2005. The x-rays confirmed a fracture in the fourth metacarpal bone in his right hand -- the bone at the base of the ring finger. Plaintiff's hand was placed in a splint. Two days later, on May 26, Plaintiff was examined by an orthopedic surgeon, Doctor Rajiv Puri, for a follow-up requested by Dr. Fernandez for a prior knee and ankle surgery. Ex. 7. Dr. Fernandez personally attended this meeting. Medical staff at FCI 1 requested that Dr. Puri examine Plaintiff's hand at this meeting in addition to the follow-up examination.

Dr. Puri was a contract consultant for Medical Development International, Ltd ("MDI"), a company that contracted with the Bureau of Prisons ("BOP"). MDI contracted with physicians to perform medical consultations at FCI 1 as needed per its agreement with the BOP. As a contractor with MDI, Dr. Puri provided orthopedic specialty services at the prison in 2004 and 2005. Puri voluntarily ended his agreement to provide services for BOP through MDI sometime in July, 2005, after his last trip to FCI 1 on July 12.

At the time of this meeting on May 26, 2005, Dr. Puri determined that the fracture in Plaintiff's hand was "angulated" by a visual examination of Plaintiff's hand and by examining the May 24, 2005 hand x-rays. Dr. Puri's notes acknowledged that Plaintiff's hand was on a splint, but do not indicate that Dr. Puri was aware that Plaintiff was receiving Ibuprofen.*fn3 Ex. 7. Dr. Puri prescribed open reduction internal fixation ("ORIF") surgery to treat the fracture. Dr. Puri believed the ORIF surgery was necessary because the fracture would otherwise take a long time to heal and subject Plaintiff to pain during the healing process. Further, Dr. Puri believed that without the surgery, there was a chance that the fracture could heal improperly, causing problems such as decreased grip strength and disfigurement.

Dr. Puri testified that his usual practice is to indicate a need for pain medication in his notes if he feels the prisoner needs pain medication. However, despite the fact that pain is greatest soon after the fracture, Dr. Puri did not indicate Plaintiff needed stronger pain medication than Ibuprofen or prescribe any medication on May 24, 2005. Trial Transcript Vol. 3 at 9: 7-22. In fact, Dr. Puri's notes do not refer to pain.

Defendant Dr. Fernandez had accompanied Plaintiff to the examination room where the Plaintiff's meeting with Dr. Puri took place. Dr. Puri made notes of the examination and prepared a recommendation for surgery to be performed on June 2, 2005. Ex. 7.

The notes do not indicate any sense of urgency, but state simply that Plaintiff had a fracture in his fourth metacarpal bone and that he was recommended "for ORIF on 6/2/05." Ex. 7. The notes do not mention pain. Dr. Puri indicated to Dr. Fernandez that he selected the June 2, 2005 date because the date was particularly convenient in his schedule. Trial Transcript Vol 3. at 11:11-14; Fernandez Dec. ¶ 9. Dr. Puri did not indicate that he felt it was urgent that Plaintiff receive the surgery. Trial Transcript Vol 3. at 10:25; 11:1-14; Fernandez Dec.¶ 9. Dr. Fernandez prepared a written request for surgery (a "form 513") and wrote "ASAP" on the request. Ex. 6. Dr. Puri's testimony at trial and Dr. Fernandez's testimony confirm that Dr. Fernandez wrote "ASAP" on the request because of the proximity of the June 2 date, rather than any belief that it was urgent that Plaintiff receive the surgery. Trial Transcript Vol 3. at 10:25; 11:1-4; Fernandez Dec. ¶ 15. Dr. Fernandez then delivered the form 513 to the medical secretary for scheduling. The medical secretary then faxed the form to MDI, which was received by MDI on May 31, 2005. Ex. 6.

MDI was responsible for contacting an outside specialist to schedule the surgery. MDI was also responsible for confirming with the secretary, Ms. Kline, at FCI 1 that the appointment had been scheduled. Sterling Dep. at 68; Allen Dec. ¶ 4; Kline Dep. at 19-25; Fernandez Dec. ¶ 19. In the past, Dr. Fernandez called service providers to reschedule cancelled appointments directly out of concern for inmates' urgent medical needs, Kline Dep. at 41, but he was reprimanded as he does not have authority to schedule appointments. Fernandez Dec. ¶ 23.

Dr. Fernandez assumed that the medical secretary had contacted MDI and that the procedure had been scheduled. For security reasons, inmates are not given advance notice of when they will be leaving the facility for scheduled appointments. Kline Dep. at 43. If an inmate knew of a trip, Ms. Kline would be required to cancel the appointment and reschedule. Kline Dep. at 43. To avoid disclosing this information, Dr. Fernandez did not keep records of outside appointments and did not know exactly when Plaintiff's surgery was scheduled.

The surgery on June 2, 2005 with Dr. Puri was never scheduled by MDI for unknown reasons. MDI scheduled Dr. Puri's appointment with another surgeon, Dr. George T. Craig, for a date well after June 2, 2005. Dr. Fernandez was not responsible for MDI's scheduling decision. Dr. Fernandez was not informed by Dr. Puri or MDI that the surgery was not scheduled for June 2, 2005. During the relevant period there was no system or policy in place to notify a physician that a scheduled appointment had been changed or canceled. Fernandez Dec. ¶ 27; Allen Dec. ¶ 6.

On June 28, 2005, the MDI scheduler advised Ms. Kline that the surgery was scheduled with Dr. Craig and that Dr. Craig had to cancel his upcoming appointment because he would be out of the office. The appointment was scheduled for August 4, 2005. Kline Dep. 61. Meanwhile, on July 2, 2005, Plaintiff contacted Mr. Louis Sterling, the Assistant Health Services Administrator at FCI 1, asking when the surgery recommended by Dr. Puri would be performed. Mr. Sterling informed Plaintiff that he would be seen by Dr. Craig.

On July 12, 2005, while Plaintiff's appointment with Dr. Craig was still pending, Dr. Puri met with Plaintiff for a second time on a routine visit to FCI 1. Dr. Puri wrote in Plaintiff's chart that Plaintiff had a malunited fracture in the right fourth metacarpal. At trial, Dr. Puri indicated that the optimal period for ORIF surgery was within six weeks of the fracture, because new bone (known as a "callus") could have formed by six weeks, beginning the natural healing process. Dr. Puri also indicated that because he did not have a current set of x-rays, he was uncertain "whether the fracture had or had not actually healed as of July 12, 2005." Puri Dec. ¶ 23.

Nonetheless, Dr. Puri recommended surgery because Plaintiff told him that the "bump" on his hand was hurting, and because Plaintiff was concerned about the fact that the knuckle was missing. Dr. Puri 's notes affirm his reasoning: "Insists on correcting the malunion. Painful bump. Adv[ised] will remove the bump, but no guarantee for restoring the knuckle[.] For ORIF [fracture] [right] 4th [metacarpal]." Ex. 9. At trial, Dr. Puri explained that when he wrote "insists on correction of the malunion," he was referring to the Plaintiff insisting on the surgery. Trial Transcript Vol. 3 at 13:14-19. Further, the notation regarding a "painful bump" was based on Plaintiff informing Dr. Puri that the "bump" was hurting him. Puri Dec. ¶¶ 27-28. Dr. Puri did not prescribe pain medication or indicate stronger pain medication than Ibuprofen was needed. Dr. Puri placed his recommendation in Plaintiff's file and had no further contact with Dr. Fernandez. Dr. Fernandez was not present during the July 12, 2005 meeting. Aside from the notes and conversation on May 26, 2005, and notes from July 12, 2005 in Plaintiff's file, Dr. Puri did not communicate with Dr. Fernandez about his recommendation for surgery.

Dr. Fernandez reviewed and signed Dr. Puri's second recommendation for surgery. Dr. Fernandez believed based upon his review of Dr. Puri's July 12, 2005 notes that Dr. Puri was indicating that surgery might remove the bump on Mr. Garcia-Merino's right hand. Fernandez Dec. ¶ 29. Dr. Fernandez reasonably interpreted the notes to mean, as Dr. Puri intended to convey, that Plaintiff was "insist[ing] on" the surgery, not Dr. Puri. Trial Transcript Vol. 1 at 50: 24-25; 51: 1-9. He understood that Dr. Puri warned that the ORIF procedure was "no guarantee" for improvement. Fernandez Dec. ¶ 29. The only advantage for doing the procedure, according to Dr. Puri's notes, was to remove the bump, which Plaintiff claimed was hurting. Fernandez Dec. ¶ 29. During the time Dr. Fernandez was responsible for Plaintiff's treatment, Dr. Fernandez was aware that another viable method of treatment was to treat the fracture conservatively by using a splint and Ibuprofen. Fernandez Dec. ¶ 29. Nonetheless, Dr. Fernandez approved and forwarded the request for surgery on August 1, 2005, about three weeks after Dr. Puri made his second recommendation for surgery. Dr. Fernandez did not exercise his independent medical judgment in making this decision. Despite his reservations regarding the necessity of surgery, he deferred to Dr. Puri's expertise. Trial Transcript Vol. 1 at 49:17-22; 60: 20-23; 61:8-15. On August 10, 2005, Mr. Sterling sent an additional 513 on behalf of Dr. Fernandez requesting surgical intervention and evaluation by Dr. Craig.*fn4 Sterling Dep. at 142.

After Mr. Sterling contacted MDI and after Dr. Fernandez forwarded the request for surgery on August 1, 2005, MDI rescheduled Plaintiff's appointment with Dr. Craig from September 1, 2005 to September 8, 2005. Ex. 12. This change likely occurred because of Dr. Craig's schedule, according to Ms. Kline. Kline Depo. at 60. Dr. Fernandez was not responsible for this decision. ...

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