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Daniel Troup v. Christopher Smith

March 1, 2013

DANIEL TROUP, PLAINTIFF,
v.
CHRISTOPHER SMITH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Dr. Craig Lovett's May 23, 2012 motion for summary judgment, which plaintiff opposes. On review of the motion, the documents filed in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

FACTS*fn1

At all times relevant to this action, plaintiff was incarcerated at Mule Creek State Prison ("MCSP"). Compl. ¶ 2. Craig Lovett is a board certified orthopaedic surgeon in practice since 1985 and employed by the California Department of Corrections and Rehabilitation as a contract physician and surgeon at MCSP from 2007 to 2011. Lovett Decl. ¶ 1.

On February 25, 2009, plaintiff injured his right index finger while working n the MCSP meat plant. Compl. ¶ 3; Def.'s Mot. for Summ. J., Ex. B (Lovett 0013, 0016); Troup Dep. 15:8-9. That day, plaintiff was seen at the MCSP Triage and Treatment Area by Dr. Jalal Soltanian, who ordered an x-ray of plaintiff's finger. Compl. ¶¶ 3-4; Def.'s Mot. for Summ. J., Ex. B (Lovett 0013*fn2 ). On the radiology report, it was concluded that there may be a "fracture of a benign entity such as a bone cyst." Def.'s Mot. for Summ. J., Ex. B (Lovett 0018). Following examination of plaintiff's finger, Dr. Soltanian prescribed 800 mg of ibuprofen for plaintiff's pain, ordered a follow-up appointment in two days, and referred plaintiff to Dr. Lovett for consultation. Id. (Lovett 0013, 0019).

On March 6, 2009, plaintiff was seen by Dr. Alvin Zachariah for a follow-up appointment. Def.'s Mot. for Summ. J., Ex. C (Lovett 0026). Dr. Zachariah thereafter submitted a Physician Request for Services ("PRS") form for a referral to "ortho" for a "routine" appointment and scheduled a follow-up appointment in two weeks. Id. (Lovett 0028). The PRS was approved on March 10, 2009. Id.

Also on March 10, 2009, a second x-ray was taken of plaintiff's finger. Def.'s Mot. for Summ. J., Ex. D (Lovett 0027). Comparing this x-ray with the one taken on February 25, 2009, it was determined that there was "little or no change" since the injury occurred, although "[t]he fracture of the cystic structure is more appropriately seen at the present time." Id.

On March 20, 2009, plaintiff was seen for a follow-up appointment by physician's assistant Karen Todd. Def.'s Mot. for Summ. J. (Lovett 0029). During this appointment, Todd discussed the March 10, 2009 x-ray results with plaintiff, noted that a PRS form was "generated to ortho," and scheduled a follow-up appointment in thirty days. Id. Todd also refilled plaintiff's ibuprofen medication. Id. (Lovett 0030-31).

On April 23, 2009, plaintiff was again seen by Todd for a follow-up appointment. Compl. ¶ 7. Todd again noted that there was a PRS for ortho, refilled plaintiff's ibuprofen medication, and ordered another follow-up appointment. Def.'s Mot. for Summ. J., Ex. E (Lovett 0032-34).

On April 30, 2009, plaintiff was seen by Dr. Lovett. Def.'s Mot. for Summ. J., Ex. F (Lovett 0038). Dr. Lovett indicated on the Health Record Report following this visit that both the February and March x-rays of plaintiff's finger "noted a cystic lesion involving the proximal radial aspect of the right index finger. He unfortunately has gone onto a fix boutonniere deformity*fn3 , -50 degrees with a severe hyperextension deformity of the DIP*fn4 joint." Id. Plaintiff stated that he could "live with the boutonniere deformity, but the unstable DIP joint [was] not acceptable to him" because it "creates problems with his work, wearing gloves, etc." Id.; Lovett Decl. ¶ 10. Following a physical examination of plaintiff, Dr. Lovett recommended "open repair of [plaintiff's] boutonniere deformity." Def.'s Mot. for Summ. J., Ex. F (Lovett 0038). He also determined that plaintiff would benefit from a DIP fusion*fn5 , which was plaintiff's "chief concern." Id. This procedure would have fused the DIP joint and allowed plaintiff to be able to grasp objections with his thumb and index finger without the DIP joint hyperextending. Lovett Decl. ¶ 11. Dr. Lovett noted that "[t]his will be lined up pending authorization." Def.'s

Mot. for Summ. J., Ex. F (Lovett 0038). Dr. Lovett was willing to perform the DIP fusion, but was unwilling to perform the open repair of the boutonniere deformity because it was more complex and not his specialty. Lovett Decl. ¶¶ 11-12. Plaintiff concedes that Dr. Lovett's recommendation for surgery for the boutonniere deformity was correct. Troup Dep. 38:20-23.

Following this appointment, Dr. Lovett submitted to Dr. Smith, MCSP's Chief Physician and Surgeon, a PRS form for a "routine" surgery to perform the DIP fusion, noting that plaintiff's finger was "severe" and "fixed" with a "deformity." Lovett Decl. ¶ 13; Def.'s Mot. for Summ. J., Ex. G (Lovett 0036). This RPS was approved on May 5, 2009. Def.'s Mot. for Summ. J., Ex. G (Lovett 0036).

Dr. Lovett does not recall having received the RPS authorization. Lovett Decl. ¶ 14. If Dr. Lovett had received the authorization, his office would have promptly scheduled the procedure for a date 2-3 weeks thereafter, which was his usual practice. Id. Instead, in late-July or early-August, Dr. Lovett became aware that the DIP fusion procedure had been approved when a scheduling nurse at MCSP showed him a list of approved surgeries during one of Dr. Lovett's monthly on-site consultation visits to the prison. Lovett Decl. ¶ 15. Once Dr. Lovett became aware that the DIP fusion procedure had been approved, he decided it was inappropriate to perform the procedure without another consultation in light of the amount of time that had passed since his April 30, 2009 examination of plaintiff. Id. ¶ 16. Although Dr. Lovett believed that a DIP fusion was still possible, he determined that it was medically appropriate to obtain a second opinion. Id.

On August 28, 2009, Dr. Lovett's office contacted MCSP to cancel the DIP fusion procedure and refer plaintiff to the hand surgery department at the University of California at Davis ("UC Davis") for an evaluation and treatment recommendation. Def.'s Mot. for Summ. J., Ex. H (Lovett 0037); Lovett Decl. ¶¶ 16-17. Dr. Lovett's plan was to perform the fusion procedure if the hand specialist at UC Davis determined that it was still appropriate. Lovett Decl. ¶ ...


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