United States District Court, W.D. Kentucky, Paducah
DONALD R. PHILLIPS, PLAINTFF
SHASTINE TANGILAG, MD, et al., DEFENDANT
MEMORANDUM OPINION ORDER
B. Russell, Senior Judge
Donald R. Phillips has two related motions before the Court:
Plaintiff's Motion for Injunctive Relief (Order Requiring
Plaintiff's Transport for Medical Examination and
Treatment), (R. 105), and Motion for Leave to File Second
Amended Complaint, (R. 108). The Defendants, Shastine
Tangilag, Lester Lewis, Ted Jefferson, and Correct Care
Solutions, have responded to the motion for injunctive relief
but have not yet responded to the motion for leave to amend.
For the reasons that follow, the Court must HEREBY DENY
Phillips's motion for injunctive relief, (R. 105). As
will be discussed further below, Phillips's motion to
amend, (R. 108), is consequently HEREBY DENIED AS MOOT.
R. Phillips is an inmate within the Kentucky Department of
Corrections. (R. 1). In 2014, Phillips was assaulted by
another inmate and suffered an injury to his left leg.
(Id.). Later, his injury was diagnosed as a
“probable plantaris rupture in the left lower
leg.” (Id.) Phillips filled out a Healthcare
Request form on November 26, 2014, (R. 57-1), and was seen by
Dr. Shastine Tangilag on November 29. (R. 57-2). In her
notes, Tangilag stated that Phillips had “a mass on the
posterior leg. Has been increasing in size for the past
month. Pain is minimal.” (Id.). Phillips
received an ultrasound on the affected area on February 3,
2015, the results of which were as follows:
“Examination of the medial calf. There is a soft tissue
mass in the area of concern with good blood flow. However no
definite clearcut margins are seen…CT scan is
recommended to better evaluate this region.” (R. 57-3).
Post-ultrasound notes from Tangilag three weeks later
indicate that, at that time, the mass was growing and was
more painful than it had been before. (R. 57-4).
March 13, 2015, Phillips received an off-site CT scan at
Western Baptist Hospital in Paducah, Kentucky. (R. 57-5). The
findings were as follows: “A palpable marker was placed
on the skin at the region of the abnormality. Between the
gastrocnemius and soleus muscles, there is a heterogeneous
fluid collection. This is in the normal course of the
plantaris muscle and likely represents a plantaris rupture.
There is no evidence of fracture or worrisome osseous lesion.
No. soft tissue lesions are identified. The visualized
tendons and ligaments appear intact.” (Id.).
The impression was a “[p]robable plantaris rupture in
the left lower leg.” (Id.). Tangilag met with
Phillips again after the CT scan results were obtained and
informed him that the results would be forwarded to Ted
Jefferson, an outside orthopedic surgeon, “to see if
this is something surgical that needs to be fixed. Other than
the pain and the lump, he [Phillips] has full use of his leg
(able to plantar flex) which is consistent with the CT scan
finding.” (R. 56-7).
saw Phillips in his office on July 3, 2015 for an examination
of Phillips' left leg. (R. 57-7). Jefferson indicated
that the lump on Phillips' left leg was a hematoma. (DN
56-5, at 11-12). In his own words, a hematoma is
“bleeding that happens in the nonvascular space, like
under the skin or deep to the fascia in a muscle belly.
It's just basically a large collection of hemorrhagic
blood.” (Id. at 12). In Jefferson's
estimation, Phillips ruptured his plantaris and the hematoma
was likely the resultant effect of that injury.
(Id.). During his examination of Phillips, Jefferson
attempted to aspirate the mass, a technique wherein the
treating physician inserts a syringe into the affected area
to remove any fluid that has built up there. (R. 57-7).
Jefferson noted that “[n]o appreciable fluid was
identified consistent with the diagnosis of chronic hematoma
posterior aspect of the left leg.” (Id.).
Jefferson recommended that Phillips be given an MRI to
determine what his options were. (Id.). The MRI was
given on August 11, 2015. (R. 57-9). The MRI indicated that
the amount of fluid in Phillips' left calf had
“slightly decreased since his previous CT” scan.
(Id.). No. mass was identified. (Id.).
meeting notes from August 19, 2015, wherein she talked with
Phillips, state the following: “Dr. Ted Jefferson
(Orthopedics) called last week stating that he does not need
further treatment from a surgical standpoint. The hematoma is
resolving.” (R. 57-10). Surgical debridement of the
hematoma had been one of the possible courses of treatment
Jefferson had discussed with Phillips. Tangilag indicated
that Phillips should put moist heat on the affected area
twice daily. (Id.). Finally, Tangilag noted that
Phillips told her he had “contacted an orthopedic
surgeon for a second opinion because he still ‘wants to
be treated, ” and that Phillips “was advised that
he has the right to seek a second opinion at his own expense
per policy.” (Id.). Phillips did not see
another member of the prison medical staff or CCS until late
2017 or early 2018-well after he had already filed the
instant suit. (R. 56-4)
16, 2016, Phillips filed the instant lawsuit pursuant to 42
U.S.C. § 1983. Phillips asserts claims under the Eighth
Amendment to the United States Constitution and Section
Seventeen of the Kentucky Constitution, and medical
malpractice claims. By way of relief, Phillips requests
compensatory and punitive damages, declaratory relief, and
injunctive relief in the form of medical treatment.
March 25, 2018, Phillips filed a Motion for Preliminary
Injunction requesting that he be seen by an outside physician
so as to alleviate his ongoing pain and suffering. (R. 56).
The Court denied that motion for various reasons. One of
those reasons was that Phillips had failed to utilize
intra-prison channels to be reassessed after it became clear
to Phillips that his injury was allegedly no longer resolving
itself, as it had been the last time he saw prison medical
personnel. (R. 60). The Court noted that the Defendants
appeared to indicate that should Phillips reach out through
the proper intra-prison channels to obtain a new evaluation
of his injury by prison medical staff, this is something that
would not be denied to him, provided that he complied with
prison regulations. (Id.).
January 14, 2019, after having attempted to utilize these
intra-prison channels, Phillips moved for an extension of
time in which to designate an expert medical witness to be
used at trial. In that same motion, Phillips also sought an
order from the Court requiring the Defendants to transport
Phillips from where he was incarcerated to that medical
expert to be evaluated for trial purposes and receive
treatment. The Defendants opposed both the extension and the
transport. Regarding the transport, the Defendants argued
that transporting an inmate always presents a security risk,
and that the Court should defer to the Kentucky Department of
Corrections concerning such matters. The Defendants also
claimed Phillips was free to obtain an expert medical opinion
at any time pursuant to Kentucky Department of
Corrections' Policies and Procedures § 13.2.
However, according to § 13.2, the medical expert would
have to come to Phillips and evaluate him where he was
incarcerated. The Court granted Phillips his requested
extension but, deferring to the Kentucky Department of
Corrections, denied Phillips's request that the Court
compel the Defendants to transport him to an outside medical
January 20, 2019, Phillips moved for leave to amend his
Complaint to add Dr. Clifford as a Party Defendant. Dr.
Clifford is a medical professional at Little Sandy
Correctional Complex. According to Phillips, after the Court
had denied his first motion for preliminary injunction, which
spurred him to again seek treatment for his leg injury
through intra-prison channels, he was seen by Dr. Clifford.
During that encounter, Clifford allegedly told Phillips that
“she could not ‘abide people like
[Plaintiff]', that all Plaintiff wanted was for
‘higher-ups to spend thousands of dollars' on
surgery that ‘in her opinion' would not
‘take' anyway, and that all Plaintiff wanted was
free money.” (R. 76). After filing a prison grievance,
Phillips was again seen by Little Sandy medical staff. They
agreed with Dr. Clifford that surgery was not recommended.
(Id.). On March 18, 2019, The Court granted Phillips
leave to amend and added Dr. Clifford as a Party to this
action. (R. 89).
March 20, 2019, after a telephonic conference held with the
Parties, the Court ordered as follows:
Counsel for Plaintiff shall locate and consult with a medical
expert prior to April 24, 2019. That medical expert shall
determine, upon review of Plaintiff's medical records,
whether he or she could adequately assess Plaintiff's
medical condition using the medical facilities at Northpoint
Training Center [where Phillips is currently incarcerated].
If that medical expert can adequately assess Plaintiff's
medical condition using the medical facilities at Northpoint
Training Center, he or she shall travel to Northpoint
Training Center to conduct such an assessment. If that
medical expert determines that he or she cannot adequately
assess Plaintiff's medical condition using the medical
facilities at Northpoint Training Center, Plaintiff's
Counsel shall notify the Defendants and give them opportunity
to make such arrangements as are necessary to transport the
Plaintiff to the offices of the aforementioned medical
expert. If Defendants deny such transport, the Court, upon
proper motion, will determine how to proceed.
1, 2019, Phillips's counsel informed the Court that
although he had contacted multiple physicians, none of them
were willing to assess Phillips outside their own facilities
due to constraints imposed by their respective medical
malpractice insurance contracts. Apparently, coverage would
not extend to assessments or procedures conducted outside the
physicians' respective offices. Upon being so informed,
the Court ordered as follows: “The Court grants
Plaintiff's oral request to file a renewed motion to
compel Northpoint Training Facility to transport the
Plaintiff to an outside medical facility where he may be
examined by a Doctor.” (R. 103).
20, 2019, instead of filing a renewed motion to compel-as
instructed by the Court-Phillips moved again for an
injunction requiring Phillips to be transported to an outside
medical facility “for examination and treatment of his
condition by a qualified physician” in order to
“relieve his ongoing physical and mental pain and
suffering.” (R. 105). The Defendants responded arguing
that Phillips lacks standing to request injunctive relief
from the Defendants because, as private medical contractors,
they do not have the authority to effectuate an inmate's
transport. (R. 106). Phillips replies that, according to the
contract between Defendant Correct Care Solutions and the
Kentucky Department of Corrections, the Defendants do indeed
have the power to effectuate Phillips's transfer. (R.
addition, Phillips has filed for leave to amend his Complaint
to add Warden Brad Adams as a Party Defendant solely to the
extent that he may be necessary in effectuating
Phillips's transportation. (R. 108). The Defendants ...