Walker v. Southern Health Partners

• Citation: 576 F.Supp.3d 516
• Decision Date: 17 December 2021
• Docket Number: Civil Action No. 5: 20-397-DCR
• Parties: Rontaveus WALKER, individually and as administrator of the estate of Rodney Walker, et al., Plaintiffs, v. SOUTHERN HEALTH PARTNERS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

576 F.Supp.3d 516

Rontaveus WALKER, individually and as administrator of the estate of Rodney Walker, et al., Plaintiffs,

v.SOUTHERN HEALTH PARTNERS, et al., Defendants.

Civil Action No. 5: 20-397-DCR

United States District Court, E.D. Kentucky, Central Division. (at Lexington).

Signed December 17, 2021

Alphonse A. Gerhardstein, Jacqueline Greene, Friedman, Gilbert & Gerhardstein, LLC, Gary F. Franke, Pro Hac Vice, Gary F. Franke Co., L.P.A., Cincinnati, OH, Charles David Ewing, Ewing, McMillin & Willis, PLLC, Louisville, KY, for Plaintiffs.

Robert Franklin Duncan, Margaret Jane Brannon, Jackson Kelly PLLC, Lexington, KY, for Defendants Southern Health Partners, Inc., Leslie Steenbergen, Roy Washington, Jessica Houk, Kandi Ginn.

D. Barry Stilz, Lynn Sowards Zellen, Kinkead & Stilz, PLLC, Lexington, KY, for Defendants Jamie Wynn, Deanna Anglin, Dargavell, KY Madison County.

MEMORANDUM OPINION AND ORDER

Danny C. Reeves, Chief Judge Rodney Walker was arrested for a parole violation and booked into the Madison County Detention Center on September 30, 2019. He was transferred to the University of Kentucky Medical Center on October 21, 2019, where he subsequently passed away due to an intra-abdominal hemorrhage secondary to liver cancer

. Walker's adult children, as the administrators of his estate ("plaintiffs"), seek to hold Madison County Detention Center ("MCDC" or "jail") and certain personnel, as well as Southern Health Partners ("SHP") and certain SHP medical providers liable.

The plaintiffs filed suit under 42 U.S.C. § 1983, alleging that the defendants were deliberately indifferent to Walker's serious medical needs. They also assert claims of negligence and wrongful death. In addition, the administrator of the estate of Walker's widow (Virginia) brings a claim for loss of consortium. The MCDC and its personnel ("the MCDC Defendants") have filed a motion for summary judgment, as has SHP and its medical providers ("the SHP Defendants.")

The individual MCDC Defendants are entitled to qualified immunity regarding the plaintiffs’ § 1983 and state-law negligence claims. As a result, summary judgment will be granted in their favor with respect to those claims. However, the deliberate indifference claim asserted pursuant to Monell will proceed against MCDC. And because the plaintiffs have established a genuine issue of material fact concerning their § 1983 and state-law negligence claims against SHP, those claims also will be permitted to proceed. Summary judgment will be granted in favor of the defendants with respect to the claim for loss of consortium because the plaintiffs have failed to present more than a scintilla of evidence to support that claim.

I. Background

Rodney Walker ("Walker") presented to the emergency department at Baptist Health in Richmond, Kentucky on August 28, 2019, complaining of abdominal pain. [Record No. 85-1] Kent Kessler, M.D., performed an appendectomy

. During the procedure, he discovered "peritoneal implants," which were suspicious for carcinoma. Kessler excised the implants and sent them for biopsy. While Kessler could not find Walker's family members to talk to following the surgery, he discussed the surgery with Walker while he was in recovery. Kessler received the biopsy results on September 3, 2019, indicating the presence of metastatic high-grade neuroendocrine carcinoma.

Walker had a follow-up visit with Kessler the next day. Kessler noted:

I had a detailed and extensive discussion with the patient in the office and they understand that they need to undergo further evaluation with PET scan

and future upper and lower endoscopy. I have reviewed the patient's previous CT scan at the time of appendicitis with the radiologist over the phone, PET scan I think will better delineate any possible

further metastatic disease

. I would like to see the patient back in the office in 2 weeks for clinical follow up after PET scan ....

He fully understands his pathology report, he fully understands that there is a neuroendocrine carcinoma associated with the appendix, he fully understands that he did have appendicitis but a second problem was found at the time of operative intervention. He understands the importance of clinical follow up with me. There were no questions for me at the end of the office visit.

[Record No. 85-2]

Walker saw his primary care provider, Kimberly Snowden, APRN, on September 6, 2019. According to Snowden's note, Walker reported that he had recently had his appendix removed, which showed "neuroadenoma" and that he was scheduled to undergo a PET scan

. [Record No. 85-3] Walker advised Snowden that he had been using heroin but after his birthday he was going to "the House of Mercy" to get clean. He added that his wife also was a heroin user, so he was going to go live with his daughters.

Snowden sent Walker to the University of Kentucky Medical Center for a gastroenterology/hepatology consult with Mary Broadbent, APRN, on September 13, 2019. [Record No. 85-4] Walker reported his appendectomy

, but did not mention a tumor or the need for any further testing. He expressed a desire to stop using drugs and Broadbent provided him with the number of an addiction specialist. [Record No. 85-3]

On September 19, 2019, Dr. Kessler sent a letter to Walker stating:

This letter is in reference to your recent appendectomy

that was performed on 08/28/19 which, as you know, showed carcinoma associated with your appendix. You need close follow-up including CT scan of the abdomen and pelvis. Our office has tried to contact you on several occasions by telephone, all of our attempts to contact you have been unsuccessful and we continue to receive a message stating that your phone has restrictions which will not allow the call to go through.

Please contact our office as soon as possible so we can schedule the above mentioned CT scan and follow-up appointments needed thereafter. Please do not neglect your healthcare.

Walker was arrested for a parole violation on September 30, 2019. Deputy Steve Howard booked Walker into the MCDC. Walker answered "no" in response to a "standard medical question" asking whether he had any serious medical conditions that may require attention while in custody. [Record No. 84-19] However, he did indicate that he "had his appendix removed 3 weeks ago." He also reported that he had been taking prescription medicines that he may need to continue while in custody, but he was unsure what the medications were. Id.

There were approximately 400 inmates at MCDC in October 2019. [Record No. 100-16, p. 280] MCDC began contracting with SHP in 2014 to provide medical care for its inmates. Nurse Practitioner Roy Washington, an independent contractor for SHP, acted as medical director for the jail during the relevant period. Washington visited the jail every other Tuesday to provide onsite services and was "on-call 24/7." [Record No. 100-24, p. 64]

LPN Leslie Steenbergen was a regional manager for SHP and was "not a regular on-site." Instead, she would visit the jail at least every 90 days. [Record No. 100-19, p. 19] Her duties included auditing charts and overseeing staff continuing education, as well as being an on-call nurse. LPN Jessica Houk held the position of Medical Team Administrator ("MTA"). [Record No. 100-23, p. 26] Her duties included scheduling, completing reports, and providing patient-inmate care. Kandi Ginn, LPN also worked for SHP, providing patient care at MCDC during the relevant period. [Record No. 100-25, p. 34] Ginn reported to Houk and "always kept [her] aware of anything that was going on." Id. at 43.

Walker put in a request for medical assistance on October 2, 2019. [Record No. 84-20] He reported, "need to see someone ASAP about this situation [sic] I'm having really bad pain in my side." Nurse Ginn saw Walker on October 3, 2019, and completed a "clinical pathway/patient clinical data form" based on her assessment. [Record No. 84-21] She documented that Walker had stomach pain of two weeks’ duration, which he rated as nine out of ten in intensity. [Record No. 84-21] His blood pressure was 140/80, pulse was 110, respirations were 16, and his oxygen saturation

was 99 percent. He weighed 165 pounds and his temperature was 100.4 degrees. She noted that he was calm, oriented, alert, and cooperative. Beside "physician order," Ginn's note states, "Ibu 600 mg × 1 dose[,] ROI signed." Ginn testified during her deposition that she was allowed to give ibuprofen and Tylenol for three days without a doctor's order. [Record No. 100-25, p. 124] Washington signed off on Ginn's October 3, 2019 encounter note during his on-site visit on October 8, but did not see Walker.

During recorded phone calls with his adult children on October 6 and 7, Walker complained of stomach pain, bloating, and weakness. He told them that the doctor must have "left something in [his] stomach" when he performed the appendectomy

. He also complained that the jail had not provided his prescription medications. On October 7, Walker told his daughter that he was going to ask jail staff to call an ambulance. Later that day, however, he asked his daughter if she would call an ambulance and expressed frustration at the lack of response he received to his complaints, telling her there was no doctor at the jail.

Ginn saw Walker at 5:30 p.m. on October 8, 2019, presumably after Washington's shift had ended. [Record No. 84-22] He still complained of stomach pain and a sensation of food getting stuck in his upper stomach. Ginn contacted Washington by phone and described Walker's symptoms. Washington stated that "medical" needed to contact Walker's surgeon to obtain his thoughts concerning further treatment. Walker advised Ginn that his surgeon's name was Kent Kiser.

On October 11, 2019, at 1:00 p.m., Ginn contacted Dr. Kessler's office and was advised that Walker had not kept his follow-up appointment and needed to schedule a CT scan

. When Ginn told Kessler's office about Walker's complaints, she was advised that he would need to...