665 Fed.Appx. 476 (6th Cir. 2016), 15-1968, Boyer v. Lacy

Docket Nº:15-1968
Citation:665 Fed.Appx. 476
Opinion Judge:COOK, Circuit Judge.
Party Name:KATHY ANN BOYER, Plaintiff-Appellant, v. ROBERT LACY, Chief Medical Officer, Defendant-Appellee
Attorney:For Kathy Ann Boyer, Plaintiff - Appellant: Karen Smith Kienbaum, Daniel G. Galant, Law Offce, Grosse Pointe Farms, MI. For ROBERT LACY, Chief Medical Officer, Defendant - Appellee: Ronald W. Chapman Sr., Carly Ann Van Thomme, Chapman Law Group, Troy, MI.
Judge Panel:BEFORE: KEITH, COOK, and STRANCH, Circuit Judges. STRANCH, Circuit Judge, dissenting. STRANCH, Circuit Judge, dissenting.
Case Date:December 14, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 476

665 Fed.Appx. 476 (6th Cir. 2016)

KATHY ANN BOYER, Plaintiff-Appellant,

v.

ROBERT LACY, Chief Medical Officer, Defendant-Appellee

No. 15-1968

United States Court of Appeals, Sixth Circuit

December 14, 2016

NOT RECOMMENDED FOR PUBLICATION

Editorial Note:

Sixth Circuit Rule 28(g) limits citation to specific situations. Please see Rule 28(g) before citing in a proceeding in a court in the Sixth Circuit. If cited, a copy must be served on other parties and the Court.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN.

For Kathy Ann Boyer, Plaintiff - Appellant: Karen Smith Kienbaum, Daniel G. Galant, Law Offce, Grosse Pointe Farms, MI.

For ROBERT LACY, Chief Medical Officer, Defendant - Appellee: Ronald W. Chapman Sr., Carly Ann Van Thomme, Chapman Law Group, Troy, MI.

BEFORE: KEITH, COOK, and STRANCH, Circuit Judges. STRANCH, Circuit Judge, dissenting.

OPINION

COOK, Circuit Judge.

Having had the benefit of oral argument, and having studied the record on appeal and the briefs of the parties, we are not persuaded that the district court erred in granting summary judgment to Appellee Lacy. Because the reasons why judgment should be entered for Lacy have been fully articulated by the district court, the issuance of a detailed opinion by this court would be duplicative and would serve no useful purpose. Accordingly, we AFFIRM the judgment of the district court in Lacy's favor upon the reasoning set out by that court in its opinion and order filed on July 15, 2015.

DISSENT

STRANCH, Circuit Judge, dissenting.

In this 42 U.S.C. § 1983 action, Kathy Boyer, a former state prisoner at the Women's Huron Valley Correctional Facility, alleges that Dr. Robert Lacy, Huron Valley's Senior Site Physician, was deliberately indifferent to her serious medical needs. Ms. Boyer argues that Dr. Lacy exhibited deliberate indifference by failing to render adequate medical care--specifically, by: (1) not referring her to an orthopedic specialist within five days of her emergency room discharge but instead waiting six weeks to do so; (2) not refilling in a timely manner her prescriptions for pain relief drugs; and (3) not placing her in the prison infirmary for care. In addition, James Boyer, Ms. Boyer's husband, makes a claim for loss of consortium. The majority affirms the district court's grant of summary judgment to Dr. Lacy on both counts. Viewing the medical evidence in the light most favorable to Ms. Boyer, as we must, I would hold that a reasonable juror could find in Ms. Boyer's favor on some of her claims. Therefore, I respectfully dissent.

I. BACKGROUND

Ms. Boyer began her incarceration at Huron Valley on July 26, 2011.1 Medical records from her primary care physician and her intake physical indicate that, due to a prior motor vehicle accident, she suffered from reduced strength, limited range of motion, osteoarthrosis, and pain in her right shoulder.

Page 477

On March 14, 2012, Ms. Boyer fell from the top bunk of her cell on to her right shoulder. The nurse who examined Ms. Boyer observed that her right shoulder was " obviously dislocated" and telephoned the on-call physician for that day, Dr. Lacy, who directed her to send Ms. Boyer to the emergency room at St. Joseph Mercy Hospital. There, doctors took x-rays of Ms. Boyer's arm and concluded that she had sustained a " closed right proximal humerus fracture." Ms. Boyer testifies that the doctors said her arm was fractured in four places and her " shoulder was dislocated and they could not set it because the bone was displaced. It would have to be set surgically." Ms. Boyer's discharge instructions, prepared by a certified physician assistant, suggested she see an orthopedic surgeon within five days, pursuant to St. Joseph's standard procedure for her type of injury, and, at Ms. Boyer's request, that she be admitted to the prison's infirmary. The instructions also recommended prescriptions for pain medication and a sling for immobilization.

On Ms. Boyer's return to the prison that same night, Dr. Lacy was again contacted by a nurse. He instructed the nurse to give Ms. Boyer temporary pain medication and an abdominal binder to be used with the sling for better immobilization. As an alternative to admitting Ms. Boyer to the prison infirmary, Dr. Lacy provided her " bottom-bunk" and " lay-in" detail, which allowed rest and receipt of meals in her cell, in addition to a wheelchair for better access to medication lines. The nurse, at Dr. Lacy's request, scheduled a follow-up and chart review in the morning, with instructions for the follow-up doctor to " call in prescription medication" and extend the bottom-bunk, lay-in, and wheelchair details. Over the next two days, the physician assigned to follow-ups, Dr. Vivian Johnson, prescribed Vicodin and other pain medications, extended the details, and added a detail allowing her to forgo tucking in her shirt--but like Dr. Lacy neither requested an orthopedic consult nor admitted her to the infirmary.

On March 23, nine days after her fall, Ms. Boyer again visited the health clinic, complaining of severe bruising and pain, and a nurse described her arm as in " various stages of bruising," her hand as swollen, and her chest as bruised. Dr. Lacy directed the nurse examining Ms. Boyer to refer her to a physician for further evaluation. Medical records do not indicate how the nurse communicated with Dr. Lacy, who testified he could not recall. Ms. Boyer asserts that Dr. Lacy was physically present at this appointment and, in response to her request for a renewed Vicodin prescription, told her " to order Motrin from the commissary. I'm not renewing the Vicodin."

On March 29 and April 2, Ms. Boyer filed kites stating that she was out of pain medication and requesting an appointment with Dr. Johnson or Dr. Lacy. A prison official responded to the kites by telling Ms. Boyer that she would have to wait until her scheduled appointment " around" April 4. As the district court explained, despite the two kites asserting lack of pain medication, medical records show that from March 16 to April 5 Ms. Boyer took one to two tablets of Vicodin per day and had access to ibuprofen.

On April 3, Ms. Boyer attended her scheduled appointment with a nurse, who received verbal instructions from Dr. Lacy to order Advil with a start and stop date of April 3 and April 6 respectively. Dr. Lacy also authorized another prisoner to serve as Ms. Boyer's personal care aide, but prison policy prevented the inmate from assisting with feeding, clothing, or personal hygiene.

Page 478

That same day, the Assistant Resident Unit Supervisor of the jail requested that Ms. Boyer be transferred to the infirmary. Although Ms. Boyer admits that at this time Dr. Lacy had not completed a physical exam of her, she testified that he saw that her arm was black from her fingers all the way across the middle of her chest, " not black and blue, black." According to Ms. Boyer, Dr. Lacy told her " that's normal bruising from a broken arm" and, responding to a physician assistant asking if Ms. Boyer had " a ruptured biceps," said that it was just bleeding internally. Dr. Lacy denied seeing Ms. Boyer bruised " [b]lack from the shoulder to the fingertips," but admits if he had it would have been cause for " quite a bit of alarm." A fellow prisoner and former registered nurse testified that she " could barely get a radial pulse on [Ms. Boyer's] wrist" and observed extensive bruising and swelling of Ms. Boyer's arm, shoulder, and chest; she thought at the time that Ms. Boyer " probably had a fractured humerus and it was overriding the upper part of the humerus." Evidence also exists that, although a nurse visited her every day, Ms. Boyer relied on fellow prisoners for care during this time. Dr. Lacy ultimately denied the Unit Supervisor's request to transfer Ms. Boyer to the infirmary, claiming that her needs could be managed in the housing unit.

On April 10, Dr. Lacy for the first time ordered follow-up x-rays, after which he requested an orthopedic evaluation. There is evidence in the record that...

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