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Smith v. Lim-Javate

United States District Court, N.D. California

November 8, 2017

ROSANA LIM-JAVATE, et al., Defendants.




         Anthony Smith filed this pro se prisoner's civil rights action under 42 U.S.C. § 1983. This action is now before the court for consideration of the motion for summary judgment filed by defendants and opposed by Smith. For the reasons discussed below, summary judgment will be granted in defendants' favor.


         The following facts are undisputed unless otherwise noted:

The events and omissions giving rise to this action occurred in the time period from June 2014 through March 2015, at the Correctional Training Facility (CTF) in Soledad, California. At the relevant time, Smith was a prisoner at CTF.

         Defendants Darrin Bright, D.O., and Rosana Lim-Javate, M.D., were on the medical staff, and each served at times as the Chief Physician and Surgeon at CTF. Neither Dr. Bright nor Dr. Lim-Javate personally examined or treated Smith during the relevant time period. Instead, their alleged liability stems from the role of each in reviewing requests for services made by other members of the medical staff, specifically, Dr. Lim-Javate's denial of a request in June 2014, and Dr. Bright's denial of two requests in early 2015. Docket No. 1 at 3. (For ease of reference, these challenged decisions will be identified in the statement of facts as “Decision # 1, “Decision # 2, ” and “Decision # 3.”)

         A. Smith's Medical Care

         Smith injured his shoulder at another prison in or about 2011 or 2012. Docket No. 1 at 3-4. He received cortisone injections and physical therapy for his shoulder. Id. at 4. After he arrived at CTF, Smith received cortisone injections for his shoulder in December 2013. Id.

         In April 2014, Smith was examined by Dr. Friederichs, his primary care provider, whose examination revealed that Smith had a markedly decreased range of motion in the right shoulder, avoided movement of the right shoulder, had tenderness around the shoulder, and had moderate atrophy of his right biceps. Id.; Docket No. 13-1 at 4-5. Dr. Friederichs submitted a Request for Services (“RFS”) for an MRI of the right shoulder, which Dr. Lim-Javate approved on April 25, 2014. Docket No. 1 at 5; Docket No. 17-2 at 5. The MRI was done on May 9, 2014. Docket No. 17-4 at 15.

         On June 1, 2014, Dr. Friederichs submitted an RFS for an orthopedic consultation on a routine basis for a rotator-cuff tear because Smith's range of motion in his right shoulder had decreased. Docket No. 17-2 at 6.

         Decision # 1: Dr. Lim-Javate, acting as chief physician and surgeon on June 4, 2014, denied the June 1, 2014 RFS. Dr. Lim-Javate explained her reasoning in her declaration:

[T]he clinical management was incomplete and I had not been provided sufficient information about Mr. Smith's condition to justify processing the RFS. I exercised my medical judgment in denying this request for orthopedic consult based on several factors. My notes show that I wanted more information to explain Dr. Friederichs' finding of bicep atrophy, because the MRI report showed that the long head of the biceps tendon was intact and bicep atrophy may not be solely caused by a rotator cuff tear. Moreover, Mr. Smith's symptoms did not seem consistent with rotator cuff tear. In addition, other possible causes of Mr. Smith's complaints, such as impingement and frozen shoulder, had not been documented as ruled out. Before an orthopedic consult was ordered, I wanted to make sure that we had the correct diagnosis.

         Docket No. 17-2 at 2-3. After denying this request, Dr. Lim-Javate had nothing further to do with Smith's treatment. Id. at 3.

         On August 19, 2014, Dr. Friederichs submitted another RFS requesting an orthopedic consultation on a routine basis for Smith's right shoulder pain. Docket No. 17-6 at 3. Dr. Friederichs wrote that Smith reported the pain was affecting his sleep and work duties in textiles; the x-rays were unremarkable; corticosteroid shots were no longer effective; Smith had limited abduction of the right shoulder to 70 degrees and elevation to 80 degrees; and Smith had passive range of motion of abduction to 160 degrees and elevation to 160 degrees. Dr. Bright denied this RFS on August 26, 2014. Docket No. 17-6 at 3. (Smith does not challenge this denial in this action.) Dr. Bright explained in his declaration that Dr. Friederichs' information suggested two possible diagnoses, there was no clear indication of what Dr. Friederichs wanted an orthopedic surgeon to do, and the choice of treatment depended on the loss of function the patient had. He further explained: “We do not put patients at risk of surgery if they are not going to improve their function.” Docket No. 17-6 at 3. Also, frozen shoulders, such as that displayed by Smith, “typically resolve on their own and do not need surgery.” Id.

         Dr. Friederichs submitted a new RFS on September 18, 2014, for an orthopedic consultation on the basis that, contrary to information in his previous request, the patient did not have good passive range of motion and in fact was getting worse. Based on this new information, Dr. Bright approved the RFS for an orthopedic consultation on September 22, 2014.

         Dr. Kowall, an outside orthopedic surgeon, examined Smith on October 22, 2014. See Docket No. 17-6 at 4. Dr. Kowall recommended neurological studies prior to considering surgery. Dr. Bright approved the requested neurological studies. See Id. The studies were done in December 2014. The report for the studies concluded that the “electrophysiologic findings are consistent with moderate and chronic right suprascapular neuropathy. There is no evidence for C5 radiculopathy.” Docket No. 22-1 at 4.

         Dr. Kowall examined Smith again on February 18, 2015. His notes stated that Smith's “[c]ondition is multifactorial. Needs tertiary care evaluation for potential surgical remedy -- if any.” Docket No. 22-1 at 2.

         Dr. Friederichs had a follow-up appointment with Smith on February 20, 2015, and reviewed Dr. Kowall's notes from February 18. Docket No. 22-1 at 13. Dr. Friederichs wrote that Dr. Kowall had “reviewed the nerve conduction studies and did not feel that he could help the patient with surgery to repair his rotator cuff tear. The patient was referred to a tertiary orthopedic center.” Id.[1] Dr. Friederichs' plan was to obtain a further neurology consultation and an orthopedic consultation at a tertiary care center. Id. Dr. Friederichs' notes state that he explained to Smith that he would submit the paperwork but that it was difficult to get an appointment at a tertiary care center; he also emphasized the need to continue the range of motion exercises. Id. at 14.

         On February 28, 2015, Dr. Friederichs submitted an RFS for a “tertiary orthopedic consult.” Docket No. 17-7 at 20.

         Decision # 2: Dr. Bright denied the February 28 RFS on March 6, 2015. See Docket No. 17-7 at 21 (progress notes). Dr. Bright explained his reasoning in his declaration:

[T]he procedure that Dr. Friederichs was seeking is a very rare procedure and most orthopedic surgeons do not do it. We knew that Mr. Smith had a suprascapular nerve injury, but if it was due to trauma, surgery does not help and we would not want to risk surgical complications with no chance of improvement. So I needed to know more information before I could approve the RFS. I communicated that need in the “Denied RFS” notes dated March 6, 2015.

Docket No. 17-6 at 4.

         Dr. Friederichs then submitted an RFS for a surgical consult on ...

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