Greene v. Bd. of Regents of the Univ. Sys. of Ga.

• Docket Number: Civil Action 4:21-cv-277
• Decision Date: 08 September 2023
• Parties: JOEL GREENE, Plaintiff, v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, et. al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

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JOEL GREENE, Plaintiff,
v.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, et. al., Defendants.

Civil Action No. 4:21-cv-277

United States District Court, S.D. Georgia, Savannah Division

September 8, 2023

ORDER

R. STAN BAKER UNITED STATES DISTRICT JUDGE

Plaintiff Joel Greene brought this case in the State Court of Chatham County, Georgia, after his infected toe fell off while he was incarcerated at Coastal State Prison. (Doc. 1, pp. 30-45.) Plaintiff's remaining claims are (1) a medical malpractice claim asserted against Defendants Board of Regents of the University System of Georgia (“BOR”), the Georgia Department of Corrections (“GDC”), Physician Assistant (“P.A.”) Latoya Hall, and Dr. Olatunji Awe; and (2) an Eighth Amendment deliberate indifference claim asserted against Hall in her individual capacity pursuant to 42 U.S.C. § 1983.^[1] There are numerous motions presently before the Court: (1) GDC's Motion for Summary Judgment and BOR's Motion for Partial Summary Judgment, which have been consolidated and briefed together, (docs. 90); (2) Hall's Motion for Summary Judgment, (doc. 92); (3) GDC, BOR, and Hall's Motion to Exclude portions of the opinions of

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Plaintiff's expert, Dr. Robert Powers, (doc. 93); and (4) Plaintiff's Consolidated Motion for Partial Summary Judgment, Motion to Exclude the Opinions of Defendants' Experts, and Motion to Reconsider the Order dismissing Plaintiff's federal claims asserted against Awe, (doc. 100). The issues have been fully briefed. (Docs. 91, 92-2, 93, 100-1, 135-40, and 145-50.)

For the reasons stated below, the Court GRANTS GDC's Motion for Summary Judgment as to the claims asserted against GDC, (doc. 90), DENIES BOR's Motion for Partial Summary Judgment as to Plaintiff's claims based on Dr. Arlene Wilson's alleged negligence, (id.), DENIES Hall's Motion for Summary Judgment, (doc. 92), DENIES as moot BOR, GDC, and Hall's Motion to Exclude portions of Plaintiff's proffered expert's opinion, (doc. 93), GRANTS in part and DENIES in part Plaintiff's Motion for Partial Summary Judgment, (doc. 100), GRANTS in part and DENIES in part Plaintiff's Motion to Exclude certain portions of Defendants' experts' opinions, (id.), and DENIES Plaintiff's Motion for Reconsideration, (id.).

BACKGROUND

I. Factual History

A. Plaintiff's Medical Issues and 2017 Amputations

Plaintiff is a former state prisoner who was confined at Coastal State Prison (the “Prison”) beginning in 2017 through at least December 2019. (Doc. 137-1, p. 1; doc. 1381, p. 2.) Plaintiff suffers from several chronic medical conditions, including Type II diabetes and peripheral vascular disease (“PVD”). (Doc. 137-1, pp. 1-2; doc. 138-1, p. 2.) In October 2017, Plaintiff was hospitalized for treatment of diabetic foot ulcers on his left foot, and ultimately had his big toe, pinky toe, and a portion of the side of his foot

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amputated. (Doc. 137-1, pp. 6-7.) After the amputations, Plaintiff underwent surgery to have several stents placed into the arteries in his left leg because his left superficial femoral artery was occluded (i.e., clogged) and inhibiting his foot's ability to heal. (Id. at p. 7.)

B. Plaintiff's Medical Issues Culminating in the Autoamputation of His Left Second Toe in June 2019

(1) Plaintiff's “Sick Call” on April 23 with Nurse Gatewood

On April 19, 2019, Plaintiff noticed that his entire left food had swollen up overnight due to an abrasion/opening that had formed on the top of his left second toe. (Id. at p. 9.) Plaintiff put in a “sick call” request and was seen by nurse Melissa Gatewood on April 23. (Id.) Gatewood's notes for the visit indicate that Plaintiff had a “small open area” on the left second toe and that “pedal pulses [were] present.” (Id.; doc. 108-1, p. 31.) Gatewood assessed Plaintiff as having “possible cellulitis.” (Doc. 108-1, p. 31; doc. 122, p. 24.) Under the “disposition” section of the notes, Gatewood checked the “urgent” box and listed the date “4/23/19,” (doc. 108-1, p. 31), which she testified meant that Plaintiff was to be seen by an advanced level provider (“ALP”) that same day, (doc. 122, pp. 26, 28-29).

(2) Plaintiff's Appointment with Dr. Awe on April 25 or 26

Awe, the Prison's medical director, saw Plaintiff on April 25 or April 26. (Doc. 137-1, pp. 5, 10.) Awe testified that Plaintiff's left food had a “little sore” on it as well as “some redness” and “some warmth,” the latter two of which are “clinical features of [] an infection, cellulitis.” (Id. at p. 10 (quoting doc. 119, pp. 22, 51).) Awe also testified that Plaintiff's “peripheral pulses were good.” (Doc. 119, p. 23.) Awe knew at the time that Plaintiff had PVD, had suffered prior amputations to the same foot, and had received stenting to restore blood flow to that foot. (Doc. 137-1, p. 10; see doc. 119, p. 24.) Awe

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prescribed Plaintiff daily bandage changes, ten days of Clindamycin (an oral antibiotic) for the infection, and Lasix (a water pill) for the swelling. (Doc. 137-1, p. 11; see doc. 107-1, p. 14.) Awe additionally scheduled Plaintiff to return to the clinic in three weeks. (Doc. 137-1, p. 11; see doc. 107-1, p. 14.)

(3) Plaintiff is Seen by Dr. Wilson on May 3 and May 16

Plaintiff returned to the Prison's medical center on May 3 and was seen by Dr. Arlene Wilson. (Doc. 137-1, p. 12.) At that point, Plaintiff had been on Clindamycin for nine days without improvement, and his second toe had developed a “superficial ulcer.” (Id. (quoting doc. 108-1, p. 30).) Wilson knew that Plaintiff had PVD and prior amputations to his left foot but did not think it was necessary to urgently refer him to a vascular surgeon for arterial studies because Plaintiff had “palpable peripheral pulses,” his skin was “warm to touch,” his “capillary refill was normal,” and there was “no necrosis.” (Id. (quoting doc. 121, p. 32); doc. 121, p. 70.) Instead, Wilson discontinued Clindamycin, placed Plaintiff on different antibiotics, and ordered daily bandage changes.^[2] (Id.)

Although Wilson told Plaintiff that he would be scheduled for a follow-up appointment within four to five days, Wilson did not see Plaintiff until May 16 (thirteen days later). (Doc. 137-1, pp. 12-13; see doc. 108-1, p. 29.) Wilson's notes from the visit indicate that Plaintiff's toe was still infected, describe the skin on his foot as “red,” and list

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the degree of control of Plaintiff's PVD as “fair.” (Doc. 108-1, p. 29; doc. 137-1, p. 13; doc. 121, pp. 49, 52.) Because Plaintiff's foot was not healing, Wilson requested that Plaintiff be referred to an outside wound care clinic on an urgent basis. (Doc. 137-1, p. 13.) Wilson testified that she did so because the Prison “only had certain types of dressings” and “sometimes you need special dressings in order to clear up a wound infection.” (Doc. 121, p. 35.) Wilson further testified that she referred Plaintiff to wound care-instead of a vascular surgeon or specialist-“on the assumption that there was adequate blood flow to [Plaintiff's] extremity.” (Id. at p. 36; see id. (stating that, in general, if she had seen a patient who lacked a “palpable pulse,” indicating “restricted blood flow to the extremity,” she “would not have referred them to wound care” because wound care “wouldn't have been able to help [the patient] in that situation”).) Awe signed off on Wilson's wound care referral after discussing it with her and, thus, knew that Plaintiff's toe had not improved. (Doc. 137-1, p. 14.) Neither Awe nor Wilson ever referred Plaintiff to a vascular surgeon because of Plaintiff's May 16 visit. (Id.)

(4) Plaintiff's Visit to the Wound Care Clinic on May 29

Plaintiff saw Dr. Douglas Hanzel at St. Joseph's Candler Center for Hyperbarics & Wound Care on May 29, 2019. (Doc. 137-1, p. 21.) This was the first time that Plaintiff had seen an outside provider about his toe. (Id.) Hanzel's records state that Plaintiff's left foot had no palpable pulse, a weak dorsalis pedis pulse with doppler, and no posterior tibial pulse with doppler. (Doc. 119-2, p. 12; see doc. 119, pp. 28, 35.) Hanzel described Plaintiff's wound as an “open diabetic ulcer” that was worsening due to “poor circulation.” (Doc. 119-2, p. 15.) He further stated that the toe looked like it was almost autoamputated, and he noted that “there [was] tendon exposed,” a “large amount of serosanguineous

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drainage,” and “a medium (34-66%) amount of necrotic tissue within the wound bed.” (Doc. 137-1, p. 22 (quoting doc. 119-2, pp. 12, 15, 17).) Hanzel also stated that Plaintiff “surely will need another vascular evaluation]” because he suspected Plaintiff “may not have adequate circulation to heal [his] toe ulcer.” (Id. (quoting doc. 119-2, p. 18).) Plaintiff testified that Hanzel told him his toe was “dead” and that Plaintiff needed to see a vascular surgeon about getting it amputated. (Doc. 118, pp. 46, 48; see doc. 92-4, p. 202 (medical encounter form dated June 5, 2019, which indicates that Plaintiff said he was told by the wound clinic to follow up with “vascular” to have an amputation).) However, Hanzel's records do not contain any information about what Hanzel personally told Plaintiff. (See generally doc. 119-2, pp. 10-31.)

(5) Plaintiff's Interactions with P.A. Hall on May 30 and June 5

Following Plaintiff's meeting with Hanzel, he was scheduled for a May 30 followup appointment with P.A. Hall. (Doc. 137-1, p. 23; doc. 138-1, p. 6 (admitting that Hall was supposed to see Plaintiff “as a follow up from an outside provider consultation]”).) When an inmate is sent to an outside facility for a consultation, they have a follow-up with a provider at the Prison upon their return. (Doc. 138-1, pp. 6-7.) According to Hall, the purpose of these follow-ups is to ensure that the outside provider's directions are noted and followed by the Prison's medical unit and its providers. (Doc. 92-4, p. 4.)

Plaintiff and Hall had not interacted prior to the May 30...