Davis v. Pulaski Cnty.

• Court: U.S. District Court — Eastern District of Arkansas
• Writing for the Court: LEE P. RUDOFSKY UNITED STATES DISTRICT JUDGE
• Decision Date: 08 March 2021
• Docket Number: Case No. 4:19-cv-00643-LPR
• Citation: Davis v. Pulaski Cnty., Case No. 4:19-cv-00643-LPR (E.D. Ark. Mar 08, 2021)
• Parties: REGINALD DAVIS PLAINTIFF v. PULASKI COUNTY ARKANSAS, et al. DEFENDANTS

REGINALD DAVIS PLAINTIFF v. PULASKI COUNTY ARKANSAS, et al. DEFENDANTS

Case No. 4:19-cv-00643-LPR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

March 8, 2021

ORDER

Pending before the Court is a Motion for Summary Judgment by separate Defendants Turn Key Health Clinics, LLC ("Turn Key") and Diedra Vester, LPN ("Nurse Vester").¹ In his Complaint, Plaintiff Reginald Davis alleges that Turn Key and Nurse Vester committed medical malpractice.² Mr. Davis alleges that Nurse Vester gave him the wrong type of insulin, setting off a chain of events that eventually led to the infection and amputation of Mr. Davis's right leg. Turn Key and Nurse Vester move for summary judgment, arguing that Mr. Davis has failed to support his medical malpractice claims against them with expert opinion. Turn Key and Nurse Vester say that Arkansas law requires expert opinion in a case like the one at bar. Turn Key and Nurse Vester are correct. The Court GRANTS summary judgment for Turn Key and Nurse Vester.

Background

Mr. Reginald Davis was diagnosed in 2000 as an insulin-dependent diabetic.³ He was prescribed (among other medications) "HumuLIN N U-100 INJ 3ML,"⁴ which Mr. Davis describes as a "slow-acting" insulin.⁵ Mr. Davis testified that over the years he has received different types of insulin.⁶ Sometimes he would receive "longer-acting" insulin and sometimes he would receive "regular insulin for specific instances."⁷ In July of 2017, Mr. Davis was arrested and taken to the Pulaski County Regional Detention Facility ("Pulaski County").⁸ Later, in November of 2017, he was transferred to the Arkansas Department of Corrections ("ADC") for a parole violation, where he spent six months.⁹

On the date of the initial event at issue in this case—September 22, 2017—Mr. Davis was held at Pulaski County.¹⁰ Nurse Vester came to Mr. Davis's cell at 4:54 a.m. to give him his daily dose of insulin.¹¹ Mr. Davis believes and testified that Nurse Vester gave him the wrong type of insulin; that is, he believes that Nurse Vester gave him an injection of the fast-acting insulin.¹² The medical chart listing Mr. Davis's medications shows that he was given the same insulin that morning as he had been given on other days.¹³ But Mr. Davis testified that, based on his experienceas a diabetic and based on the events that occurred after he got the injection, he knew that it was the incorrect insulin. He stated that "[t]his has never happened in my life. I'm talking about: I never have passed out or fell out or nothing. I know when I haven't received the right insulin. When I fell, once I hit the wall, I knew that she gave me the wrong dose. I knew that."¹⁴ When asked how he knew that, Mr. Davis responded, "[r]egular would have dropped it right in a minute. N won't. N is slow-acting. Regular is fast, so fast it will knock you out."¹⁵

In his Complaint, Mr. Davis alleges that before he was given a shot of insulin, his blood sugar was measured at 164.¹⁶ He repeats this statement in the Response to the Statement of Materials Facts.¹⁷ However, he does not cite to, and the Court has not found, any evidence as to his blood sugar measurement before his shot. After receiving the insulin shot, Mr. Davis laid back down in his cell bed.¹⁸ At 5:13 a.m., Deputy Dillard ordered Mr. Davis to exit his cell to receive his food tray.¹⁹ Mr. Davis stood up from his bunk and fell; he testified that "when [he] stood up, [he] hit the wall. And once [he] hit the wall, [he] pushed the door and [he] fell. And pretty much that was the last thing [he] remember[s] at that time."²⁰ In his Complaint, Mr. Davis alleges that his blood sugar had dropped from 164 to 28.²¹

When Mr. Davis passed out, he fell to the floor in such a way that he injured his ankle.²² Mr. Davis recounted that, while he lay on the floor, he observed his foot had twisted. He testified the following: "[a]nd I looked down, and my ankle was turned all the way - I mean, my foot was turned all the way to the right, but the ankle was sitting on the right there."²³ As he lay on the floor, Nurse Vester rubbed the back of his neck and repeated, "I'm sorry."²⁴ Mr. Davis recalls that Deputy Debra Ann Dillard told him, "don't you move, don't you move."²⁵ Deputy Dillard called a "Code Red," which is used as a signal for a medical emergency.²⁶ Deputies and Turn Key staff on the scene observed his ankle injury.²⁷ He asked what happened and one of the nurses said he "came in like that," and "another nurse told her, '[n]o, he did not.'"²⁸ Nurse Marsha Warren recorded her observations:

Inmate's right ankle looked deformed; Inmate's right foot was completely turned to the right side of foot as in dislocated & also inmate never shed one drop of sweat during this hypoglycemic episode; given 2 fast acting glucose tabs; rechecked BS: dropped to 26; Fed an orange: BS 36; Fed 2 glucose fast acting tabs, another orange, & started on a sandwich, at 0535 BS 88; inmate assisted to cell, limping on right leg; but inmate had manipulated foot to normal position.²⁹

Mr. Davis recounted that he was given oranges and orange juice to try to get his blood sugar to the appropriate level.³⁰ Mr. Davis denies that he was given an icepack for his ankle or that he was told to elevate it.³¹ Mr. Davis stated that he could not recall whether he was able to reposition his ankle into its normal position.³²

According to Mr. Davis, he was placed back into his cell and did not immediately receive further treatment for his ankle.³³ For example, no x-rays were performed and Mr. Davis did not receive pain medication.³⁴ Nor was he was seen by a doctor or taken to a hospital at that time.³⁵ Nurse Warren completed a Turn Key medical communication form the day of Mr. Davis's injury.³⁶ She checked the box for, "[m]edically cleared to remain in unit."³⁷ She did not check the boxes for "[r]equires outside care. Injury" nor for "[i]njury complained of or observed."³⁸ On another medical form Nurse Warren completed that day, the form stated that "[p]rovider approval must be obtained prior to administration of any medication, x-rays, crutches, slings."³⁹

Several days passed before Mr. Davis's ankle received further medical attention.⁴⁰ On September 26, 2017 (four days after the incident), Mr. Davis filed a sick call request, asking for medical treatment for his ankle.⁴¹ On September 27 and September 29, 2017, Mr. Davis filed grievances for lack of medical care for his ankle injury.⁴² On September 29, 2017, he was taken to the University of Arkansas for Medical Sciences ("UAMS"), where the examining doctor observed that Mr. Davis had an "open fracture of [the] distal end of [the] right fibula . . . ."⁴³ The UAMS medical report from that visit stated that an x-ray was completed, Mr. Davis's ankle was splinted, and that he was discharged with crutches.⁴⁴ The report directed, "[t]o follow up with orthopedics for definitive surgical intervention," and listed a plan to "[s]chedule an appointment as soon as possible for a visit in 3 days."⁴⁵

In his Complaint, Mr. Davis alleges that UAMS advised him that he "needed to have surgery in order to repair his ankle" and that UAMS "is believed to have provided a date for" Mr. Davis's surgery.⁴⁶ Mr. Davis further alleges in his Complaint that "in an effort to avoid incurring this medical expense, the defendants 'fast-tracked'" Mr. Davis to the ADC.⁴⁷ Mr. Davis provided no evidence to support that he was offered a date for the surgery during this September UAMS visit. The only evidence provided to the Court on this issue is the aforementioned medical reportthat says that Mr. Davis was "[t]o follow up with orthopedics for definitive surgical intervention" and to "[s]chedule an appointment as soon possible for a visit in 3 days."⁴⁸ It is true that Mr. Davis was transferred to the ADC in November of 2017.⁴⁹ But there is no record evidence to support the allegation that he was "fast-tracked" or that he was transferred to avoid medical follow-up.

Mr. Davis's next medical report from UAMS is dated October 27, 2017.⁵⁰ The report noted that he had an appointment at the UAMS Orthopedic Clinic on October 10, 2017, "but missed his appointment because he is incarcerated and was not transported to [the] clinic."⁵¹ The report described his splint as "softened" and "falling apart."⁵² The report described Mr. Davis as continuing "to have pain over his lateral malleolus" and having "developed numbness after the fall" which had "not changed since the incident."⁵³ Mr. Davis returned to UAMS on October 31, 2017.⁵⁴ The medical report from that visit noted that x-rays showed a "[r]ight fibula fracture with syndesmotic widening."⁵⁵ The report stated that the fracture "[n]eeds surgical fixation asap."⁵⁶

Mr. Davis was sent from Pulaski County to the ADC on November 9, 2017 to serve his six-month parole violation sentence.⁵⁷ On November 17, 2017, Mr. Davis returned to UAMS for surgery to repair his ankle.⁵⁸ Dr. Ruth Thomas performed the operation and noted the following:"Fibula fracture in 3 three larger pieces with anterior tibia fibula ligaments on most anterior fragment. With fixation of the fibula the syndesmosis was still wide. According, syndesmotic screws added. Three placed as patient has diabetes and the bone was very soft."⁵⁹ Mr. Davis's repaired ankle was placed in a short-leg splint.⁶⁰

Defendants' Expert Disclosures contain expert reports that allude to medical records from Baptist Health leading up to Mr. Davis's amputation.⁶¹ The Court has not been provided those records, nor any other evidence regarding the status of Mr. Davis's ankle between the time of initial ankle repair surgery and his release from the ADC, or after his release and before the amputation. Mr. Davis's Complaint states that he was released from the ADC on August 1, 2018,⁶² which was about nine months after his surgery. Mr. Davis argues that due to his diabetes and "the fact that the walking boot was rubbing against his ankle," he contracted an infection in his right...