United States District Court, D. Colorado
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 ...