Rose v. Borsos, Case No. 2:17-cv-204
| Decision Date | 17 August 2018 |
| Docket Number | Case No. 2:17-cv-204 |
| Parties | ROBERT D. ROSE, JR., Plaintiff, v. DEAN BORSOS, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
MEMORANDUM OPINION
Before the Court are the following motions: 1) a motion for substitution of parties filed by the United States (Doc. 95); 2) a motion to dismiss filed by the United States, Dean Borsos, Dr. Matthew Caffrey, Christina Craft, Dr. James Crider, Lonnie Hatton, Dr. David Hecht, Dr. John Hendrick, Kim Odom, Dr. Mark Vernon, and Dr. Dale Whitson1 (together the "Medical Provider Defendants") (Doc. 97); 3) a motion to dismiss filed by Defendants Jerry Shelton, Russell Jamerson, and Ernest King (together the "Officer Defendants") (Doc. 99); 4) a motion to dismiss certain intentional-tort claims filed by the United States (Doc. 101); 5) a motion for supporting evidence or for dismissal of Defendants' motions to dismiss filed by Plaintiff Robert D. Rose, Jr. (Doc. 108); and 6) a motion to amend the scheduling order, filed by the United States and the Medical Provider Defendants (Doc. 134). For the following reasons, the motion for substitution of parties (Doc. 95) will be GRANTED, the motions to dismiss (Docs. 97, 99, 101) will be GRANTED, Plaintiff's motion for supporting evidence or for dismissal ofDefendants' motions to dismiss (Doc. 108) will be DENIED AS MOOT, and the motion to amend the scheduling order (Doc. 134) will be DENIED AS MOOT.
The following facts, alleged in Plaintiff's amended complaint, will be accepted as true for the purposes of the pending motions to dismiss. Plaintiff served as a United States Marine from 1983 to 1994. (Doc. 22, at 4.) During service, Plaintiff suffered a number of serious injuries, including a spinal cord injury, which ultimately "result[ed] in long term Intractable Pain Disease." (Id.) After returning to civilian life, Plaintiff was treated for pain at the Mountain Home Veterans Affairs Medical Center ( "Mountain Home VAMC"). (Id. at 1, 4.) According to Plaintiff, in October 2016, he received a call from Defendant Christina Craft, a nurse practitioner, who informed him that the United States Department of Veterans Affairs (the "VA") had adopted a new "opioid safety initiative" (the "VA Policy"). (Id. at 4.) Craft told Plaintiff that, under the VA Policy, the providers at Mountain Home VAMC would start tapering Plaintiff's pain medication—despite his medical condition and persistent pain. (Id.) According to Plaintiff, Dr. James Crider, a primary care physician at Mountain Home VAMC whom Plaintiff had yet to meet, was "supposedly" supervising Craft at this time. (Id. at 6.)
Before the forced tapering, Plaintiff was prescribed 180 milligrams of morphine sulfate a day. (Id. at 4.) Craft first decreased his daily dose to 120 milligrams and then continued tapering his medication further. (Id.) Since the forced tapering, Plaintiff has experienced symptoms of increased pain, difficulty breathing, high blood pressure, numbness, tingling, and dizziness. (Id. at 5.) Plaintiff resisted going to the Mountain Home VAMC to treat these symptoms, believing it would be a waste of time. (Id. at 6.) Defendant Lonnie Hatton, the Mountain Home VAMC Patient Advocate, advised Plaintiff that the VA would not compensateany visits to a private health care provider. (Id.) On October 28, 2016, Dr. Crider "falsely enter[ed] into [Plaintiff's] medical records that [he had] violated the pain patient agreement contract; still without having spoken to [him]." (Id.)
On November 29, 2016, after a month of reduced pain medication, Plaintiff's symptoms caused him so much pain that he visited the emergency room at the Mountain Home VAMC. (Id.) From the waiting area, Plaintiff contacted Hatton and asked her to meet him at the emergency room, but she never arrived. (Id. at 7.) Plaintiff was eventually called back to see a physician, but, when the staff realized that Plaintiff was attempting to make an audio recording of the visit, a police officer was summoned to his exam room. (Id.) "Sgt. Haney," who is not listed as a defendant, "bullied his way into the room" and told Plaintiff that recording devices were not permitted at VA facilities. (Id.) Haney told Plaintiff that "if [he] did not stop interfering" with the activities of the staff at the Mountain Home VAMC, "he was going to throw [Plaintiff] in the back of his car, take [him] to Greeneville, and make [him] talk to Judge Corker."2 (Id. at 7-8.) According to Plaintiff, "Haney was equipped with his sidearm and in uniform" during this interaction. (Id. at 17.) After Haney left the room, Plaintiff called his wife on the telephone and decided to leave after discussing the matter with her. (Id. at 8.)
According to Plaintiff, the next thing he remembered was "being strapped extremely tightly to some sort of board . . . ." (Id.) A nurse explained to Plaintiff that he had fallen and needed x-rays. (Id.) Plaintiff was given two doses of morphine, which relieved some of his pain. (Id.) Nevertheless, when he was ultimately discharged, he was still in extreme pain and had "extremely high blood pressure." (Id. at 9.)
Before his discharge, Plaintiff and his wife spoke to Defendant Dr. Suzanne Allen. (Id.) Allen "indicated that because of the VA[']s blanket policy she was forbidden to provide anything more for the pain or to provide anything for me to take home." (Id.) Allen informed Plaintiff that "the Cat Scans indicated no new damages but that she could see the old fracture to the T9 . . . ." (Id.) Allen gave Plaintiff a discharge paper with the following directions: (Id.)
When Plaintiff arrived home, he got out his recording device to listen to the part of the incident he had recorded, but discovered that "someone had gone into [his] saddlebag on [his] wheelchair and deleted what little of the incident [he] was able to record." (Id. at 10.)
After the incident, Plaintiff and his son met with Defendant Dr. John Hendrick and a Mountain Home VAMC psychologist. (Id. at 10-11.) During the meeting, Dr. Hendrick falsely accused Plaintiff of suffering from "opioid use disorder" and "opioid dependence disorder," despite his lack of training in substance-abuse disorders. (Id.) According to Plaintiff, as retaliation "for what Dr. Hendrick perceived as a threat during this meeting," Dr. Hendrick coerced the psychologist to falsely diagnose Plaintiff with "opioid use disorder" and wrote an "administrative note" asserting that Plaintiff should be treated in a substance-abuse program. (Id.) As a result of the administrative note, which Plaintiff alleges Dr. Hendrick shared with non-medical personnel, other health-care providers at Mountain Home VAMC—specifically Craft, Dr. James Crider, Dr. Thomas Edwards, and Dr. Mark Vernon—continued to deny him needed pain medication. (Id. at 11-16.) Other providers, including nurse Teresa Odom, also wrote misleading and defamatory notes in his file. (Id.) According to Plaintiff, he is unable to purchase private insurance to seek medical care outside of the VA medical system as a result ofthe notes in his file. (Id. at 12.) Additionally, Dean Borsos, the Mountain Home VAMC Director, submitted false information about Plaintiff's medical history in a letter to Senator Bob Corker. (Id. at 15-16.)
On December 21, 2016, Craft offered to restore Plaintiff's pain medication dosage to 120 milligrams per day, "but only if he would stop fighting the VA policies." (Id. at 4.) According to Plaintiff, after Craft admitted that this increase would only be for a twenty-week period, Plaintiff refused. (Id.) At the time of his amended complaint, Plaintiff asserted he had not taken pain medication since December 29, 2016. (Id. at 5.)
Dr. Matthew Caffrey saw Plaintiff in January 2016 for pain management. (Id. at 15.) He told Plaintiff about his family member who committed suicide after suffering from pain and dementia and advised Plaintiff that "God would forgive [him] for committing suicide because of uncontrolled pain." (Id.)
On May 20, 2017, Plaintiff was seen by Dr. Vernon, his primary care physician. (Id. at 13.) According to Plaintiff, despite his high blood pressure and diabetes, Dr. Vernon advised him to continue to smoke cigarettes and drink Mountain Dew. (Id.) Dr. Vernon eventually apologized to him for the VA Policy and admitted that, based on his "latest nerve conduction tests," Plaintiff's pain medication should have never been reduced. (Id.)
On May 23, 2017, Plaintiff saw Dr. Edwards. (Id.) Plaintiff alleges that, though Dr. Edwards had not reviewed his medical records, he refused to prescribe opioid medication to Plaintiff. (Id. at 13-14.) Plaintiff "stated [to Dr. Edwards] in anger 'Then just prescribe me a 9mm and one round to end my suffering' . . . ." (Id. at 14.) Plaintiff also told Dr. Edwards that Plaintiff would "destroy him . . . legally." (Id.) Plaintiff alleges that, based on these statements,Dr. Edwards and his nurse Teresa Odom "had [his] record flagged as a danger to [himself], others or medical staff." (Id.)
Several days later, as a result of this flag, Plaintiff "was informed by phone that [he] had to go before the Disruptive Behavior Clinic on June 6, 2017." (Id.) Plaintiff reported to the Clinic on June 6, as requested. (Id. at 15.) Jerry Shelton, the Chief of the Mountain Home VAMC Police, met with Plaintiff at the clinic. (Id.) Shelton interrogated him with his firearm and handcuffs plainly visible "[i]n an obvious attempt at intimidation." (Id.) After Plaintiff explained the context of his comments to Dr. Edwards, Shelton implored him to "be more cautious in future communications with staff and providers . . . as [his] military demeanor could be intimidating" (Id.) Shelton advised Plaintiff that "[the Disruptive...
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