The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The following defendants moved for summary judgment in this case: Correctional Medical Services, Inc. (CMS), Robert Balfour, LPN, Timothy McHugh, M.D., David Hadlock, D.O., Lane Deitchler, N.P., Howard Willis, M.D., and Klint Stander, M.D. (collectively, the "CMS Defendants"). See Dkt. 70. Thereafter, defendants Randy Blades, John Hardison and Johanna Smith joined the CMS Defendants' motion. See Dkt. 71.
The Court finds that the decisional process would not be aided by oral argument, and will resolve these motions after consideration of the parties' written submissions. D. Idaho L. Civ. R. 7.1(d).
Before reciting the relevant facts, the Court will address the admissibility of certain evidence, including Stakey's medical records and the CMS Defendants' admissions.
The CMS Defendants' motion relies heavily on Stakey's medical records. These medical records are hearsay, but may be admissible under the business records exception to the hearsay rule. See, e.g.,United States v. Hall, 419 F.3d 980, 987 (9th Cir. 2005) (medical records "classic" exception to the hearsay rule). That exception renders admissible records of "acts, events, conditions, opinions, or diagnoses, made at or near the time by . . . a person with knowledge," but only if such records are "kept in the course of a regularly conducted business activity, and if it was a regular practice of that business activity to make a memorandum, report, record, or data compilation." Fed. R. Evid. 803(6). Facts supporting admissibility must be supplied "by the testimony of the custodian or other qualified witness or by certification" that complies with Federal Rule of Evidence 902.
Dr. Scott Lossmann (who is not one of Stakey's treating physicians) attaches Stakey's medical records as an exhibit to his affidavit, but he does not lay the necessary foundation to invoke the business-records exception to the hearsay rule. Instead, the only foundation provided is this: "As Regional Medical Director [of CMS], I perform only administrative duties. I am personally familiar with the facts set forth herein by virtue of my status as Regional Director for CMS." Lossmann Aff., Dkt. 70-4 ¶ 1.
Nonetheless, the Court will consider the medical records because Stakey has not objected to their use and relies on many of the same records in his complaint and in opposing the motion for summary judgment. See Fed. R. Civ. P. 56(e)(2) (if a party fails to "properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion); Atkinson v. Fischer, 2009 WL 3165544, at *3 n.1 (N.D.N.Y. Sept. 25, 2009) (under similar facts, deciding summary judgment motion based upon unauthenticated prison medical records). Defendants are advised to properly authenticate medical records in future motions.
A second evidentiary issue arises because the CMS Defendants argue that Stakey cannot rely on out-of-court statements they made. As the CMS Defendants put it: "Of course, any statements that Stakey attributes to the CMS defendants . . . are hearsay and . . . inadmissible. (FRE. 801, 802)." Reply at 3, Dkt. 74.
This is incorrect. Stakey may testify as to what the CMS Defendants said to him because such statements are non-hearsay admissions. See Fed. R. Evid. 801(d)(2)(d) (admission by a party-opponent's agent concerning a matter within the scope of the agency is an out-of-court statement offered against a party). The rationale for treating these out-of-court statements as non-hearsay is as follows:
Admissions are non-hearsay because none of the fundamental reasons for excluding hearsay applies. A party against whom an admission is offered has ample opportunity to cross-examine the testifying witness regarding the statement, and to explain or deny the purported admission. The fact the party's statement was not made under oath or in the presence of the trier of fact is immaterial because the party is able to testify as to the circumstances under which the statement was made.
Robert E. Jones et al., Rutter Group Practice Guide: Federal Civil Trials & Evidence ¶ 8:2027. The Court will, therefore, consider the CMS Defendants' admissions, to the extent relevant.
Otherwise, the CMS Defendants have raised some valid, general objections to Stakey's affidavit, in that certain statements are medical opinions, argument, or not based on personal knowledge. But the Court can handle these issues by reciting only those facts supported by admissible evidence. In so doing, the Court will rely on Stakey's verified complaint, to the extent statements made therein are based on personal knowledge. See Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995) (verified complaint may be treated as affidavit).
With these evidentiary issues resolved, the Court turns to the facts. The short version is that Stakey injured his shoulder twice while in prison -- once in the summer of 2007 and again in November 2008. He was seen by several different medical providers for his injuries, including doctors, nurses, and a physician's assistant. These providers administered a course of treatment the CMS Defendants describe as "conservative management." This treatment included, at various times, x-rays, prescription and non-prescription pain medications, lower-bunk memos, and an arm sling. The more specific, visit-by-visit details are set forth below.
A. Summer 2007: Stakey's Initial Shoulder Injury
In late June or early July 2007, Stakey injured his right shoulder
while playing soccer. Stakey Compl. ¶ 19, Dkt. 3. That same day,
Stakey submitted a health services request form (referred to by the
parties as a kite) requesting a doctor appointment.*fn1
He then waited for two weeks, but was not seen by a doctor.
Prison staff told him to submit another medical kite, which he did on
August 1, 2007. Id. ¶ 23.
In his August 1 kite, Stakey indicated that the pain from the injury was so excruciating that he could not sleep at night and, further, that ibuprofen and aspirin were not alleviating his pain. See Ex. A to Stakey Aff., Dkt. 73-7, at 1; HFOB 1.*fn2
Stakey was eventually seen in mid-August 2007, when he had an appointment with nurse practitioner, Lane Deitchler. Compl. ¶ 24. Deitchler ordered an x-ray, mobic (a non-steroidal anti-inflammatory), and muscle balm. Id. ¶ 26; HFOB 9, 19; see also Ex. A to Stakey Aff., Dkt. 73-5, at 2.
A few weeks later, Stakey submitted another medical kite. In this one, he indicated that Mobic was not alleviating his pain, and he asked to be evaluated by a doctor. HFOB 2; see also Ex. A. to Stakey Aff., Dkt. 73-5, at 2 (Stakey voices similar concerns in a September 13, 2007 IDOC offender concern form).
On September 21, 2007, Dr. David Hadlock evaluated Stakey. See id. at 2-3. Dr. Hadlock had apparently just received the x-ray that was ordered during the August visit. Compl. ¶ 28. The x-ray showed a "very subtle first degree A-C [acromio-clavicular] joint separation" on the right shoulder. HFOB 40. Dr. Hadlock ordered an arm sling for Stakey, but did not prescribe any pain medication. See Compl. ¶ 28. Stakey indicated that when he asked for pain medication (explaining that he could not sleep or turn over in bed), Dr. Hadlock said he was an OB/GYN and was "new at this." Id.
Shortly after this appointment, on October 2, Stakey submitted two offender concern forms, one addressed to "Tom Manwaring HSA (CMS)" and the other to "Doctor Hadlock M.D. (C.M.S.)" See Ex. A to Stakey Aff., Dkt. 75-3, at 2-3; Compl. ¶ 29. In both, he expressed dissatisfaction with the treatment he had received; his chief complaint was that he was still in pain. The prison responded to both forms by instructing Stakey to submit a medical kite. Id.
Stakey complied, submitting another medical kite on October 5, 2007. Compl. ¶ 30; Ex. A to Stakey Aff., Dkt. 73-5, at 3, 7 and Dkt. 73-7, at 3. He stated: "I need to be scheduled to see a doctor immediately. This Mobic medication is not helping to alleviate the pain at all. Also, I still continue to have bad side effects of this Mobic as severe stomach cramps, chest pain, diarrhea, dizziness, fainting and breathing difficulties . . . ." Ex. A to Stakey Aff., Dkt, 73-7, at 3. CMS indicates that it did not receive this kite. See Lossmann Aff. ¶ 10, Dkt. 70-4 ("Dr. Lossman notes, "I note that while Mr. Stakey was instructed to submit a Kite to obtain another evaluation, he never did so.").
Roughly three weeks later, on October 31, 2007, Stakey filed a grievance with the prison, again setting forth his problems with Mobic. Ex. A to Stakey Aff., Dkt. 73-5, at 4. Stakey further stated, "I feel that somebody in C.M.S. is deliberating ripping up my medical HSR form, before it can get process[ed]." Id. Prison staff eventually checked a box indicating that Stakey's grievance was "denied," but the response also states: "You will be scheduled for a call out for a new x-ray of your shoulder . . . . You will also be on call-out to see an MD." Id.
On November 13, 2007, Stakey was evaluated for complaints of sharp pain in the right deltoid. The August x-ray was reviewed and another ordered. See HFOB 10 (November 13, 2007 appointment notes). The new x-ray indicated that the separation had worsened somewhat -- the November x-ray reports indicates a"first degree right A-C separation" as compared to the August 2007 x-ray, which indicated a "very subtle first-degree separation. Compare HFOB 40 with 42 (emphasis added).
After the November visit, Stakey filed a grievance with the prison. He reiterated that he remained in severe pain and that Mobic was not helping. He also expressed frustration that CMS "ignored my two (2) HSR medical forms that I've filed in the past months." Ex. A to Stakey Aff., Dkt. 73-5, at 7.
In early January 2008, Stakey "was finally scheduled to see a different doctor: Defendant Dr. Stander . . . ." Compl. ¶ 35. Dr. Stander determined that Stakey had strained his right deltoid muscle and injected him with kenalog. Id.
Dr. Stander saw Stakey for a follow-up visit on March 14, 2008. Dr. Stander noted: "On exam, I don't feel he has significant pain. He requests vicodin. I recommended against it. I offered him despramine - he declined that. I offered him Percogesic - he declined that and made fun of it. He then became argumentative and I had to ask him to leave." HFOB 12.
According to Stakey, he did not become argumentative, but simply could not pronounce the names of the medication, as he is hearing impaired. He ...