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Donald Degner v. Athanassious

February 23, 2012



Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). This action proceeds on plaintiff's Eighth Amendment deliberate indifference claim against defendant Athanassious. Plaintiff alleges that defendant performed an unsuccessful surgery on his right ear causing him excruciating pain and thereafter, defendant failed to refer plaintiff to an outside hospital for a second opinion or surgery. Defendant moves for summary judgment on the ground there is no evidence to support plaintiff's claim of deliberate indifference, and alternatively, on the ground he is entitled to qualified immunity. As discussed below, the undersigned finds there is no evidence to support plaintiff's claim, and therefore recommends that defendant's motion be granted.

I. Background

Unless otherwise noted, the court finds that the following facts are not disputed by the parties or following the court's review of the evidence submitted, have been determined to be undisputed.

Plaintiff is a prisoner properly in the custody of the California Department of Corrections and Rehabilitation (CDCR) at California Medical Facility (CMF) in Vacaville, California.

Def.'s Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof ("SUF") 1. Plaintiff is not a doctor. SUF 2.

Defendant is a licensed physician and surgeon in the State of California and at all times relevant to this lawsuit, was the elected Chairman of Surgery at CMF. SUF 3. Defendant has practiced surgery for over 43 years. SUF 4.

On September 16, 2009, defendant performed an excision biopsy of a skin lesion on plaintiff's right ear pinna to rule out basal cell carcinoma (BCC). SUF 5. The excision of a skin lesion is the appropriate medical treatment to fully remove skin cancers such as BCC because if the cancer is not cut out, it may spread to the surrounding skin and to other parts of the body (metastasize). SUF 6. Another reason that skin lesions are excised is for cosmetic appearance. SUF 7. The most common type of excision is an elliptical excision. SUF 8. The ellipse is designed so that the resulting scar runs parallel with existing skin creases to ensure that the scar is as narrow and short as possible. SUF 9. It is impossible to cut the skin without scarring in some way, so the patient will always have some sort of scar. SUF 10.

On July 20, 2009, a physician request for services was submitted on behalf of plaintiff for a routine, initial, outpatient consultation with defendant at the CMF Surgery Clinic. SUF 11. The doctor's principle diagnosis was possible BCC and the doctor indicated that the consultation was medically necessary because plaintiff had a suspicious lesion on his right upper ear pinna for six months with pearly white edges, central scabbing and a diameter of approximately two to three millimeters. SUF 12.

On August 13, 2009, plaintiff consulted with defendant at the CMF Surgery Clinic. SUF 13. Defendant diagnosed plaintiff with a lesion of his right ear pinna and his plan was to perform an excision biopsy to rule out BCC. SUF 14. Defendant submitted a physician request for services on plaintiff's behalf for an urgent excision biopsy. SUF 15.

Plaintiff signed an Informed Consent form on August 31, 2009 consenting to the excision biopsy after being informed that "[a]ll operations and procedures may involve risks of unsuccessful results, complications, injury, or even death, from both known and unforeseen causes, and no warranty or guarantee is made as to result or cure." SUF 16. Plaintiff was also informed about the possible risks and complications on September 11, 2009, but elected to proceed with the surgery despite an understanding of the possible "risks, benefits, alternatives, and complications, with an emphasis on bleeding, infection, recurrence, and anesthesia complications, as well as the fact that the lesion should be excised with a margin of 0.5 cm circumferentially and more if needed, that may result in delay of healing and disfigurement of the ear." SUF 17.

On September 16, 2009, the excision biopsy of the lesion on plaintiff's right ear pinna took 21 minutes, during which defendant made an elliptical incision with 0.5 centimeter margins all around the lesion and excised the entire lesion and surrounding tissue. SUF 18. The skin was undermined and separated from the cartilage of the ear pinna, and then sutured. SUF 19. Plaintiff tolerated the procedure very well and was transferred to the recovery room in good condition. SUF 20. Defendant submitted the ellipse of skin of the ear pinna with lesion to the lab. SUF 21. Defendant wrote an order for plaintiff's stitches to be removed in two weeks, to have daily dressing changes at the B1 Clinic for two weeks, and to follow-up in the Surgery Clinic in two weeks. SUF 22. Defendant also prescribed Keflex (an antibiotic to prevent infection) for two weeks and Tylenol #3 (pain medication as needed for pain) for two weeks for plaintiff. SUF 23.

The pathology results of plaintiff's skin lesion were consistent with chondrodermatitis nodularis helicis (chondrodermatitis) and no evidence of malignancy was identified. SUF 24. The results demonstrated that the lesion was 0.35 centimeters from the nearest margin, meaning that there was .35 centimeters of normal tissue between the edge of the lesion and the outer edge of the removed tissue. SUF 25. The pathology report confirmed that defendant completely removed the entire lesion. SUF 26.

On September 22, 2009, Dr. Mehta renewed the prescription of Tylenol #3 for 30 days for plaintiff. SUF 27.

On October 2, 2009, defendant saw plaintiff for a follow-up appointment and noted that the pathology report showed chondrodermatitis and no cancer, and defendant also noted that plaintiff's wound was okay. SUF 28. Defendant prescribed Ciprofloxacin (an antibiotic to prevent infection) and also wrote an order for plaintiff's stitches to ...

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