Gonzales v. Correctional Health Partners, LLC

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

         Prisoner Plaintiff Timothy Gonzales alleges that injuries to his left knee were left untreated negligently and with deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Defendant CoreCivic, pursuant to a contract with the Colorado Department of Corrections (CDOC), operates as the Bent County Corrections Facility (BCCF), where Gonzales is incarcerated. Defendant Correctional Health Partners (CHP) also contracts with CDOC and provides administrative services determining the medical necessity and propriety of treatment requests by medical providers on behalf of inmates at BCCF. Defendant Dr. Mix is a review manager and chief medical officer at CHP.

         This case is in its fifth year and on its fifth amended complaint. The five remaining claims are these: alleged (I) Eighth Amendment violation by Mix; (II) Eighth Amendment Violation by CoreCivic; (III) Eighth Amendment violation by CHP; (IV) Negligence by CHP and Mix; and (V) Negligence by CoreCivic. Defendants seek summary judgment on all claims. (See ECF Nos. 189, 193, 211, 213, 221, 224.)

         I. BACKGROUND

         a. Obtaining Special Medical Treatment for BCCF Inmates

         This case focuses on the process by which inmates obtain specialized medical treatment outside prison walls. Operating as BCCF, CoreCivic provides medical care on the inside and is usually the first point of contact for incarcerated inmates requiring treatment. (CSUMF ¶¶ 1-3.)^[1]CHP is a private entity that furnishes third-party medical administrative services related to prisoner care-including establishing policies and procedures for the review and authorization for specialized treatment. (CSUMF ¶¶ 4, 6.)^[2] Except in emergencies or other circumstances not relevant here, to schedule an inmate with a provider outside prison walls, CoreCivic staff, or outside care providers (as the case may be), must submit a “prior authorization request” to CHP for approval. (CSUMF ¶¶ 4, 7.)^[3]

         After receiving such a request, a CHP care management coordinator reviews it for completeness. (MSUMF ¶ 8.) Among other things, a complete request includes information concerning the prisoner's diagnosis or symptom and its duration; the service requested and data supporting it; any more conservative therapies that have been tried or were insufficient; any previous diagnostic results; compliance with standard care guidelines; the functional impact of providing the service; and relevant medical history. (R-CSUMF ¶ 89.)^[4] A complete request is reviewed by a nurse manager. (MSUMF ¶ 9.) If a nurse manager does not approve the request, it is reviewed by a medical director, such as Defendant Dr. Mix, ^[5] who considers the request against nationally recognized, evidence-based guidelines for determining appropriate care. (MSUMF ¶¶ 11, 54-55; R-MSUMF ¶¶ 12-14.)^[6] Through this process, CHP does not examine patients directly, ^[7] but reviews and approves or denies requests based on CDOC-approved clinical criteria, national guidelines, and the submitted information. (CSUMF ¶ 6; MSUMF ¶ 59.) If CHP denies a prior authorization request for any reason-for example, if it decides the inmate has yet to undergo more conservative treatment-it returns the request to the provider, who may appeal the decision. (CSUMF ¶ 8; MSUMF ¶ 12.) Following a second denial, a provider may appeal further to the CDOC chief medical officer, who has final decision-making authority and can override any decision made by CHP. (CSUMF ¶ 9; MSUMF ¶¶ 67-69.)

         b. Gonzales's Injuries and Treatment

         Plaintiff Gonzales transferred to BCCF on February 17, 2011. (CSUMF ¶ 10; MSUMF ¶ 1.) On April 25, 2011, he visited the BCCF medical department after twisting his left knee playing basketball. CoreCivic staff gave him ibuprofen and instructed him to rest, rotate, ice, and use analgesic balm. (CSUMF ¶¶ 11.) Eight months later, on January 13, 2012, he returned to the medical department complaining of swelling and abnormal growth in the same knee. He told the nurse that “this is a chronic issue he has had since a teenager” known as “Osgood Schlatter's Disease, ” which is “intermittent” and “possibly aggravated by lifting weights.” (CSUMF ¶ 12.)

         On January 18, 2012, Rachel Scobee, a CoreCivic primary healthcare provider, discussed knee x-ray results with Gonzales and submitted a prior authorization request to CHP for an MRI, which CHP approved. (CSUMF ¶ 13; MSUMF ¶ 17.) The MRI indicated “Chronic Osgood-Schlatter lesion, possible tear of meniscus and mild associative degenerative change; possibly mild iliotibial (‘IT') band syndrome.” (CSUMF ¶ 14.) On May 31, 2012, Scobee provided Gonzales with a Velcro strap knee brace, and instructed him to continue with ibuprofen, rest, ice, and not play sports. (CSUMF ¶ 15.) She also submitted another prior authorization request to CHP for him to see an orthopedist, which CHP approved. (CSUMF ¶¶ 15-16; MSUMF ¶¶ 18- 19.) On July 12, 2012, Gonzales orthopedic specialist Dr. Alex Romero, who diagnosed him with IT band syndrome, Osgood Schlatter's Disease with overlying pre-patellar bursitis, and possible medial meniscus tear, which he characterized as “not distinctly present on MRI.” Dr. Romero proposed a knee strengthening program and a cortisone injection but did not recommend surgery. (CSUMF ¶ 16.)

         In August 2012, Gonzales reinjured his knee playing basketball. (CSUMF ¶ 18.) On October 12, 2012, he reported this new injury to Scobee, who submitted a prior authorization request to CHP for a second MRI, which CHP approved. (CSUMF ¶¶ 19-20; MSUMF ¶ 20.) The second MRI revealed “compartment degenerative change with lateral meniscus tear and [ACL] tear, possibly with partial tear of condylar fibular component of lateral collateral ligament complex.” (CSUMF ¶ 20.) Scobee reviewed these MRI results with Gonzales and submitted a prior authorization request to CHP for a second visit to Dr. Romero. (CSUMF ¶ 21.)

         Dr. Romero saw Gonzales two weeks later, on February 5, 2013. His report from that day relays that Gonzales described “sensations of pain and instability as well as swelling essentially all the time [and an inability] to do many things including ascending and more likely descending stairs.” The evaluation continues that “[t]he contralateral knee has good muscular development. The skin is intact. There is full range of motion without swelling or tenderness to palpation. There is no instability. There is a normal neurovascular examination.” The assessment notes that Gonzales wished to stay athletically active with running, jumping, and cutting sports. At this point, Dr. Romero first recommended reconstruction surgery, and his office submitted a prior authorization request for the operation. But CHP (via Dr. Mix) denied the request, stating, “based on the information provided he has good functional capacity. Therefore this is not medically necessary.” (CSUMF ¶ 24; MSUMF ¶¶ 24-26; ECF No. 192-2, at 5; ECF No. 212, at 6.) Dr. Romero did not appeal CHP's decision. (CSUMF ¶ 26.)^[8] He later testified that he did not dispute the propriety of CHP's decision:

When I make a recommendation, then that is submitted. I don't understand how the Department of Corrections and CHP work, so my assumption was that they made a determination whether or not they felt it was necessary. My specialty, especially in Mr. Gonzales' case, is for an elective surgery. I don't treat cancer. I don't treat heart disease. Nothing that I do is life threatening. It's all about quality of life. And so my assumption with the Department of Corrections is that they make a determination whether or not that that inmate, slash, patient deserves that quality of care.

(CSUMF ¶¶ 78-79.)

         On July 8, 2013, Scobee gave Gonzales a cortisone shot and submitted another prior authorization request for an offsite orthopedic visit, but CHP administratively denied it for being incomplete. (CSUMF ¶¶ 27-28; R-CSUMF ¶ 95; MSUMF ¶ 32.) Scobee gave Gonzales more cortisone injections on February 21 and April 11, 2014 and submitted another prior authorization request to CHP for him to see an orthopedist. (CSUMF ¶¶ 30-31.) On April 14, she called the chief medical officers at CHP and CDOC, seeking to have CHP's prior surgery denial overturned. (CSUMF ¶ 32.) This time, CHP approved the surgery. (MSUMF ¶ 37.) On May 9, 2014, Gonzales underwent ACL and meniscus tear surgery on his left knee. (CSUMF ¶ 34.) During a May 22, 2014 follow-up visit, Dr. Romero diagnosed Gonzales with “posttraumatic arthritis [that would] likely lead to a knee replacement at a relatively young age.” (CSUMF ¶ 36.) He testified that the delay in surgery likely contributed to Gonzales's osteoarthritis, insofar as that delay afforded Gonzales more time to experience instability episodes through continued use-including in everyday activities and participation in sports. (R-CSUMF ¶ 97.) On August 7, 2014, Dr. Romero aspirated his knee and gave him a cortisone injection. (CSUMF ¶ 37.) After his operation, Gonzales saw CoreCivic providers at BCCF for additional follow-ups in July, August, and September of 2014. (CSUMF ¶ 38.)

         On September 16, 2014, CHP approved another outside visit. (MSUMF ¶¶ 38-39.) Dr. Romero aspirated Gonzales's left knee again, gave him another cortisone injection, and noted that he “may benefit from vicosupplementation.” (CSUMF ¶ 39.) He submitted a prior authorization request for Synvisc-One (Synvisc)-medication “like giving a lubrication shot or oil change to the knee.” (CSUMF ¶¶ 40-41; MSUMF ¶ 41.) On December 1, 2014, CHP (via Dr. Stephen Krebs) denied that request, stating, “Synvisc is FDA approved for [degenerative joint disease] of the knee. It is not approved for Rx after knee reconstruction.” (CSUMF ¶ 41; MSUMF ¶ 41.)

         On November 18, 2014, Gonzales saw Dr. Timothy Creany, CoreCivic's new primary medical provider at BCCF, who noted that Gonzales had “advanced [osteoarthritis] in his left knee.” He also surmised that Gonzales would need total knee replacement surgery at some point “but will need to delay this as long as possible given the finite life of an artificial joint.” He prescribed Gonzales naproxen “to try a different medication to help his pain.” (CSUMF ¶ 42.)

         On January 12, 2015, Gonzales saw nurse practitioner Jayne Scharff at BCCF, reporting significant pain following further physical injury to his knee. Scharff observed him walking without difficulty and did not give him the cane or crutches he requested. However, she submitted a prior authorization request for an MRI. (CSUMF ¶ 43.) CHP denied that request, stating that “there was no clinical information provided. There was no history of present illness, there was no exam, there were no plain films, there was no assessment, [and] there was no failed conservative therapy.” (MSUMF ¶ 44; CSUMF ¶ 44.) After this denial, Dr. Creany explored whether he could administer Synvisc without CHP's approval. He ultimately obtained clearance from CHP and gave Gonzales a Synvisc shot at BCCF on April 16, 2015, which relieved some of his pain. (CSUMF ¶¶ 45-46; R-CSUMF ¶ 98.)

         From May 4, 2014 to January 12, 2016, BCCF medical staff gave Gonzales different medications to treat inflammation and pain, including at least three steroid shots. (CSUMF ¶ 51.)^[9] On November 30, 2015, Dr. Creany requested Synvisc for Gonzales again, but CHP denied it. (CSUMF ¶ 48.) Dr. Creany advised Gonzales of this denial and submitted a new prior authorization request seeking a referral to an orthopedic specialist, hoping that the orthopedist could get Synvisc approved. (CSUMF ¶ 49.) On January 7, 2016, CHP denied that request with an indication that Synvisc was “not medically necessary” because it did not “alter the disease process.” (CSUMF ¶ 50; MSUMF ¶ 47.)^[10]

         On January 22, 2016, Gonzales reported to Dr. Creany that he had slipped and hurt his knee again, and Dr. Creany submitted yet another prior authorization request to CHP for an MRI. (CSUMF ¶ 52.) CHP denied this request, citing a lack of documentation, but CoreCivic successfully appealed it. (CSUMF ¶¶ 53-54; MSUMF ¶¶ 48-49.) This latest MRI revealed that Gonzales had completely torn his surgically repaired ACL, and CHP approved his subsequent request to follow up with Dr. Romero. (CSUMF ¶ 55-56.) On May 3, 2016, Dr. Romero gave Gonzales a steroid shot, an x-ray, and a hinged knee brace. (CSUMF ¶ 56.) CoreCivic staff confiscated the brace because it contained metal and therefore violated security policy-which requires approval of the CDOC chief medical officer before inmates may have certain medical equipment, including “any leg braces containing metal.” (CSUMF ¶¶ 57-58.) CDOC did not approve the brace in this instance. (CSUMF ¶ 59.)

         On June 17, 2016, Dr. Romero submitted a prior authorization request to CHP for Synvisc. (CSUMF ¶ 56.) CHP initially denied the request, but CoreCivic successfully appealed, and Dr. Romero gave Gonzales the injection on November 7, 2016. (CSUMF ¶ 61.)^[11] On February 14, 2017, Dr. Creany gave Gonzales a cortisone/kenalog injection. (CSUMF ¶ 62.) On April 21, 2017, Dr. Romero submitted another prior authorization request for Synvisc, but CHP denied it with an indication Gonzales could follow up with his primary care provider. (CSUMF ¶ 63; MSUMF ¶¶ 52-53.) Dr. Creany gave Gonzales Synvisc injections on August 17, 2017 and March 1, 2018. At present, Gonzales receives regular Synvisc injections. (CSUMF ¶¶ 65, 67.)

         In all, from 2013 to 2017, CHP denied eight prior authorization requests related to Gonzales's care-four of which were submitted by Dr. Romero and four by CoreCivic staff. Of the eight, only two were appealed (both by CoreCivic), and both appeals were successful. (R-CSUMF ¶ 92.)

         c. Gonzales's Pain Management, Activity, and Grievances

         Gonzales maintains that between April 2011-when he first injured his knee-and the present, he has experienced, and continues to experience, pain and instability, including popping, buckling, grinding, aching, and ligaments catching that he has continuously reported to CoreCivic. (R-CSUMF ¶¶ 80, 82.) During this time, he took various pain relievers that did not fully eliminate the pain. (R-CSUMF ¶ 88.) His daily life required walking up to a quarter of a mile, going up and down stairs, and using a ladder to get into his bunk. (R-CSUMF ¶ 81.) According to him, it often hurt to bend, put weight on, or touch his knee. Even so, Gonzales's testimony and medical records indicate that he continued to regularly lift weights (including leg exercises) and has been able “to be active with minimal pain.” (R-CSUMF ¶ 80.) He also plays basketball as his knee can tolerate. (R-CSUMF ¶ 85.)

         Although he was not personally able to appeal CHP's denials of prior authorization requests, Gonzales was able to-and did-submit grievances through CDOC's administrative processes. (CSUMF ¶ 68.) A common complaint of his was that CoreCivic would tell him that he would be scheduled with a provider, but he would have to wait for several weeks or months. (R-CSUMF ¶ 83.) Another typical grievance revolved around him being told he would have to pay for his own treatment. (CSUMF ¶ 71.) For example, on March 27, 2013, Gonzales submitted a “kite”^[12] regarding the denied surgery request. (CSUMF ¶ 25.) For another, on June 3, 2013, a health services administrator responded to one of his Grievances by telling him, “[y]ou are scheduled to see a provider 6/25/2013. Your surgery was denied 2/18/2013 based on information ...