United States District Court, D. Colorado
PHILLIP S. MANDRELL, Plaintiff,
PHYSICIAN HEALTH PARTNERS AKA PHP CORRECTIONAL HEALTH PARTNERS, Defendant.
KATHLEEN M. TAFOYA, UNITED STATES MAGISTRATE JUDGE
case comes before the court on “Defendant's Motion
for Summary Judgment” (Doc. No. 77 [Mot.], filed
January 20, 2017). Plaintiff filed his response on February
13, 2017 (Doc. No. 83 [Resp.]), and Defendant filed its reply
on February 27, 2017 (Doc. No. 84 [Reply]).
OF THE CASE
proceeding pro se, asserts claims for violations of
his Eighth Amendment rights for the defendant's alleged
failure to provide him proper medical care. (See
Doc. No. 10 [Compl.], filed January 5, 2015). Plaintiff is an
inmate in the Colorado Department of Corrections
(“CDOC”). (Id. at 3.) He states in 2011,
he was diagnosed with a stricture in his colon.
(Id.) Plaintiff alleges gastrointestinal physicians
at Denver Health Medical Center (“Denver Health”)
recommended that he undergo surgery to remove the stricture.
(Id. at 3-4.) Plaintiff alleges the defendant denied
approval for the surgery because Plaintiff was close to his
mandatory release date (“MRD”). (Id. at
4.) Plaintiff alleges he suffered for an additional year
while his condition worsened and the stricture became a bowel
blockage, at which time he underwent immediate surgery with
removal of part of his colon. (Id. at 5-6.)
Plaintiff alleges the defendant has a policy of either
denying or approving surgery depending on the inmate's
MRD, and that the policy violated his Plaintiff's Eighth
Amendment rights. (Id. at 6.)
CHP (“CHP”) is a Colorado corporation providing
utilization management services for inmates incarcerated in
the CDOC pursuant to an annual contract. (Mot., Ex. A [Mix
Decl.], ¶ 2.) CHP is not a medical provider for CDOC
inmates, but rather acts as an administrator, processing
requests from CDOC medical providers to determine the medical
necessity and propriety of requests for treatment outside of
the CDOC's internal medical system. (Id.) CHP
physicians review and approve requests for pre-authorizations
for outside medical care. (Id., ¶¶ 1, 3.)
inmates receive medical care within their correctional
facilities from primary care providers, such as physicians,
nurse practitioners or physician assistants. (Id.,
¶ 4.) Inmates also may be referred by primary care
providers to specialists for outside medical care, but
providers are required to obtain pre-authorization for
outside services, such as surgical procedures, from CHP.
(Id., ¶¶ 4, 5.) Providers request
pre-authorization by sending a request and supporting medical
records to CHP. (Id., ¶ 5.) When a CHP
physician authorizes, or approves, a request, the
authorization is entered into a computer system, and CDOC is
electronically notified within 24 hours. (Id.,
¶ 6.) The authorization also can be reviewed by outside
providers using the electronic system within 24 hours.
(Id.) Neither CHP nor its physicians determine
whether a request for a procedure is “urgent.”
(Id., ¶ 7.) Rather, the provider making the
request marks the request as urgent or routine; the CHP
physician determines only whether the requested procedure is
medically necessary. (Id.) After entering the
authorization into the computer system, CHP and its
physicians have no responsibility for scheduling the approved
procedure. (Id., ¶ 8.) Scheduling is the
responsibility of the CDOC and its health care providers.
(Id., ¶ 9.)
April 15, 2011, a medical provider at Limon Correctional
Facility (“LCF”), submitted a request for
Plaintiff to receive a colonoscopy from Dr. James Miller.
(Mot., Ex. B [Mandrell Dep.] at 29:19-25, 30:1-25, 31:1-12,
Ex. 1.) CHP approved the request. (See id.) In July
2011, Dr. Miller performed the colonoscopy and determined
Plaintiff had a “stricture” in his colon.
(Id. at 28:22-25, 32:5-9.) On August 15, 2011, a
medical provider at LCF requested CHP approve a procedure for
a “radix colon barium enema” for Plaintiff at
Denver Health. (Id. at 33:5-25, 34:1-5, Ex 3.) The
barium enema procedure was approved by CHP (see id.)
and occurred in September 2011 (id. at 32:23-25,
33:1, 34:6-10, Ex. 2). On September 21, 2011, a medical
provider at LCF requested CHP's approval for Plaintiff,
to receive an outpatient visit at Denver Health, which CHP
approved. (Id. at 34:23-25, 35:1-23, Ex. 4.) On
November 16, 2011, Plaintiff was seen at Denver Health as a
follow-up to the colonoscopy and the barium enema.
(Id. at 34:6-16, Ex. 2.) During the November 16,
2011 visit, it was determined Plaintiff's
“descending colon [ ] has a stricture narrowing from 8
centimeters down to 1 centimeter.” (Id. at
40:20-23, Ex. 2.) The medical providers at Denver Health
recommended that Plaintiff receive a colonoscopy with a
pediatric scope in an effort to be better able to pass the
scope through the stricture. (Id. at 41:8-21, Ex.
2.) As of November 16, 2011, the medical providers at Denver
Health were not recommending surgery. (Id. at
41:22-25, Ex. 2.) On November 22, 2011, medical providers
from Denver Health requested CHP's approval for Plaintiff
to have a follow- up visit to Denver Health and a CT scan of
his abdomen. (Id. at 42:8-25; 43:1-25, 44:1-25,
45:1-25, Exs. 5, 6.) The follow-up visit and the CT scan were
approved. (Id. at 43:7-15, 45:13-25, Exs. 5, 6.) On
January 5, 2012, Plaintiff received the CT scan of his
abdomen, which indicated a “narrowing colon.”
(Id. at 46:2-25, 47:1-7, Ex. 7.) On February 2,
2012, Plaintiff was seen at Denver Health for a colonoscopy,
though the procedure was aborted prior to completion due to
Plaintiff's anxiety and the inability to sedate.
(Id. at 48:7-25, 49:1-25, 50:1-24 Ex. 8.)
3, 2012, a medical provider at Colorado Territorial
Correctional Facility (“CTCF”) requested
CHP's approval to refer Plaintiff to Denver Health for
three items: (1) endoscopy, (2) colonoscopy, and (3)
“unclassified” drug administration. (Id.
at 55:15-25, 56:1-25, 57:1-25, Ex. 9.) All three requests
were approved by CHP. (Id. at 58:1-8, Ex. 9.) The
colonoscopy was to be performed with a pediatric scope under
stronger anesthesia to avoid the issues encountered in the
previous colonoscopy. (Id. at 59:17-25, 60:1-24, Ex.
10.) On May 29, 2012, CTCF requested approval from CHP for
Plaintiff's immediate transfer to St. Mary-Corwin
Hospital for inpatient care related to an inflammation in his
colon. (Id. at 61:15-25, 62:1-25, 63:1-25, Ex. 11.)
CHP approved the request. (Id. at 64:1-7, Ex. 11.)
at St. Mary-Corwin Hospital in late May 2012, Plaintiff
received a colonoscopy and CT scan, which revealed the
stricture. (Id. at 64:8-23.) On June 28, 2012, Dr.
Susan Tiona at CTCF requested approval from CHP to refer
Plaintiff to Dr. Camille Azar to receive another colonoscopy
with “balloon dilation, ” which is when a balloon
is inflated inside the colon to widen or expand a stricture.
(Id. at 65:1-23, 66:14-25, 67:18-25, 68:1-3, Ex.
12.) CHP approved both requests. (Id. at 68:16-24,
Ex. 12.) On or about August 30, 2012, Plaintiff went to see
Dr. Azar for the colonoscopy and balloon dilation, but the
balloon dilation procedure was not successful. (Id.
at 69:21-25, 70:1-25, 71:1-25, 72:1-12, Ex. 13; see also
Id. at 91:1-3.) While attempting the balloon dilation,
it is believed Plaintiff's colon tore, which resulted in
bleeding and repair using clips. (See id.)
October 11, 2012, after Plaintiff had been transferred to
Fremont Correctional Facility (“FCF”), Dr.
Timothy Creany requested approval from CHP to refer Plaintiff
to Dr. Atul Vahil, a gastroenterologist, for a consultation.
(Id. at 76:18-25, 77:1-21, Ex. 14.) CHP approved Dr.
Creany's request. (Id. at 77:22-25, 78:1-3, Ex.
14.) In October 2012, Plaintiff was seen by Dr. Vahil, who
performed a colonoscopy on Plaintiff “at some
point” and recommended Plaintiff be referred to Denver
Health. (Id. at 81:23-25, 82:1-7.)
November 19, 2012, after Plaintiff had been transferred to
Sterling Correctional Facility (“SCF”), Dr.
Maurice Fauvel requested CHP approve a request for Plaintiff
to be seen at Denver Health, which was approved by CHP.
(Id. at 82:16-25, 83:1-25, 84:1-5, Ex. 15.) Dr.
Fauvel sent Plaintiff to Denver Health based on his
recommendation Plaintiff be evaluated for a possible
colectomy. (Id. at 84:10-15, Ex. 15.) The
appointment was scheduled for January 16, 2013. (Id.
at 88:10-23, Ex. 17.) At the January 16, 2013 appointment,
the providers reviewed Plaintiff's colonoscopy results
from Dr. Azar's colonoscopy on August 30, 2012, and ruled
out cancer as a possible diagnosis. (Id. at 92:4-16,
Ex. 17.) The providers recommended two surgical options for
Plaintiff: (1) a total complete proctocolectomy with an end
ileostomy and (2) a total colectomy with an ileorectal
anastomosis. (Id. at 94:12-22, Ex. 18.) Plaintiff
preferred not to have a colostomy bag permanently, so he and
the physician decided in favor of the total colectomy with an
ileorectal anastomosis and a possible diverting loop
ileostomy. (Id. at 97:19-25, Ex. 18.) The physician
informed Plaintiff that, before committing to surgery, he
wanted to confirm Plaintiff's diagnosis of ulcerative
colitis, discuss Plaintiff's pathology results with a
pathologist, and discuss Plaintiff's case with other
gastroenterologists at Denver Health. (Id. at
98:21-25, 99:1-7, Ex. 18.)
January 16, 2013, Plaintiff was “tentatively”
scheduled for a laparoscopic total colectomy and ileorectal
anastomosis with diverting loop ileostomy. (Id. at
99:8-15, Ex. 18.) On January 18, 2013, a medical provider at
Denver Health requested approval from CHP for the surgical
procedure recommended by Denver Health. (Id. at
99:17-25, 100:1-25, 101:1-3, Ex. 19). On January 24, 2013,
CHP approved the surgical procedure. (Id. at
101:4-8, Ex. 19.) On February 12, 2013, Plaintiff was seen at
Denver Health in follow-up to the January 16, 2013
appointment. (Id. at 101:11-25, 102:1-8, Ex. 20.)
The medical provider at Denver Health informed Plaintiff
that, after discussions with Plaintiff's
gastroenterologist at St. Mary-Corwin Hospital, it was not
clear Plaintiff had ulcerative colitis. (Id. at
102:9-13, Ex. 20.) On February 12, 2013, the medical provider
at Denver Health canceled Plaintiff's scheduled surgery
because he wanted Plaintiff to be seen by a
gastroenterologist and receive another colonoscopy.
(Id. at 102:14-21, Ex. 20.) As of February 12, 2013,
the medical providers at Denver Health choose to hold-off on
surgical intervention which demonstrated the recommended
surgery was not emergent and was something that could wait.
(Id. at 103:20-25, 104:1-8, Ex. 20.)
February 22, 2013, a medical provider at Denver Health
requested CHP's approval for Plaintiff to receive a
follow-up appointment at Denver Health for “further
workup by GI prior to surgery to determine if patient carries
diagnosis of ulcerative colitis.” (Id. at
104:11-25, 105:1-14, Ex. 21.) On March 1, 2013, CHP approved
this request. (Id. at 105:15-20, Ex. 21.) On March
25, 2013, a medical provider at Denver Health requested
CHP's approval for Plaintiff to receive another
colonoscopy under anesthesia. (Id. at 107:1-25, Ex.
22). On the request there is a notation Plaintiff had
received a colonoscopy in August 2012. (Id. at
106:1-4, Ex. 22.) The request was marked as
“routine.” (Id. at Ex. 22.) On April 2,
2013, CHP denied the March 25, 2013 request for a
colonoscopy, and on April 3, 2013, and on April 30 2013, CHP
noted that the request “Remains denied. As per Dr. Mix
given path[ology] provided and short MRD this procedure can
reasonably be deferred until after release.”
(Id. at 108:9-25, 109:1-21, Ex. 22; see ...