The opinion of the court was delivered by: Honorable Jerome B. Simandle
This matter, involving alleged inadequate medical treatment for a New Jersey state pretrial detainee, as well as alleged violations of the United States and New Jersey Constitutions, is before the Court on a motion for summary judgment by Defendant CFG Health System LLC ("CFG"). [Docket Item 36.] Plaintiff Colleen McBride claims that she sustained injuries after falling from her bunk in her cell and, although she was seen several times by nurses, she was not seen by a physician until several days later, by which time an infection had spread underneath the hematoma in her chest, requiring special surgery. [Compl. ¶¶ 10-11, 15, 20-49.]
At this stage, the only remaining claims against Defendant are those brought under 42 U.S.C. § 1983 for violations of the due process clause of the Fourteenth Amendment and under the New Jersey Constitution, N.J. Const. art. I, ¶ 1.*fn1 Plaintiff alleges that "CFG's institutionalized failure to train, supervise and discipline its staff members 1) constitutes deliberate indifference to McBride's due process rights, and 2) caused the unconstitutional failure in care to occur." [Pl. Opp'n at 2.]
The key inquiries for the Court are whether Plaintiff has adduced evidence that would permit a reasonable jury to find (1) that CFG acquiesced to the practice or custom of its employees disregarding procedures concerning the handling of sick call requests, and (2) that CFG was deliberately indifferent to Plaintiff's serious medical needs.
Because the Court answers these questions in the negative, the Court will grant CFG's motion for summary judgment.
Plaintiff Colleen McBride filed this lawsuit against County of Atlantic, New Jersey, Atlantic County Justice Facility ("ACJF"), CFG Health Systems, and two nursing employees of CFG, as well as several unnamed correctional officers, unknown medical personnel and unnamed corporations.*fn2 See McBride, 2011 WL 3236212, at *1-*2 (recounting the factual allegations in the Complaint). The principal controversies in this case concern CFG's policies for handling of sick call requests of inmates or detainees and determining when inmates or detainees should see a physician rather than a nurse. Plaintiff's main allegation is that Plaintiff's sick call slips were not handled properly, resulting in a delay in her seeing a physician, rather than a nurse, and because of this delay, she suffered from an infection that required a special procedure. The facts are undisputed, unless noted.
i. Plaintiff's injury and treatment
Plaintiff was incarcerated as a pretrial detainee in the ACJF from March 5, 2008, to April 9, 2008, during which time CFG held a contract to provide medical services at the facility. (Def.'s Statement of Undisputed Material Facts ("DSF") ¶ 6.)
On March 31, 2008, Plaintiff fell from the top bunk in her cell and sustained a hematoma to her chest wall. (Id. ¶¶ 7-8.) It is disputed whether Plaintiff submitted a written sick call slip requesting to be seen by a nurse that day.*fn3 However, it is undisputed that Plaintiff was examined by nurses twice on March 31. (DSF ¶¶ 9-10; see also Def. Ex. D at 5 (describing the two nurse encounters on March 31, recorded in Plaintiff's ACJF Interdisciplinary Progress Notes, part of her medical record).) First, Plaintiff was seen by Nurse Krawiec, a licensed practical nurse. (DSF ¶ 9.) Plaintiff complained to Nurse Krawiec of injuries sustained in her fall and of lower-back pain. (Id.) Nurse Krawiec applied ice and gave Plaintiff Tylenol for pain relief. (Id.) Later, Plaintiff was seen by Defendant Nurse Practitioner Joanne Loeffler, R.N., who ordered x-rays to rule out a fracture of the sternum. (Id. ¶ 10.)
The next day, on April 1, 2008, Nurse Loeffler saw Plaintiff again and noticed continued swelling on her chest. (Id. ¶ 11.) Nurse Loeffler took Plaintiff's vital signs, gave Plaintiff an ice bag, and ordered an increase in Tylenol. (Id.) Plaintiff testified that she orally requested to be seen a second time on April 1, to a corrections officer.*fn4 (McBride Dep. at 74:24-76:15.) Defendants respond that "[t]here is no record of the oral request but the plaintiff was seen on April 1, 2008 at 2:45 p.m. by Joanne Loeffler." (DRF ¶ 50.) On April 2, 2008, Plaintiff had a second round of x-rays taken by a technician. (PCF ¶ 55.) Plaintiff did not make a written sick call request on April 2. (Id.)
On Thursday, April 3, 2008, Plaintiff filled out a sick call slip requesting additional medical attention. (Id. ¶ 12; Def. Ex. D at 11.) Plaintiff wrote on the slip that she continued to have a lot of chest pain and that the swelling "is not going down." (Def. Ex. D. at 11.) She wrote she was having trouble sleeping and could only sleep on her side. (Id.) She requested more ice and more Tylenol, "or send me to Hospital. . . . I'm medically concerned." (Id.) She also made reference on the slip to "x-ray results." (Id.) No one examined Plaintiff on April 3, however Nurse Loeffler made a notation in Plaintiff's Interdisciplinary Progress Notes ("Progress Notes") that indicates Plaintiff's x-rays were negative. (PCF ¶ 61; Def. Ex. D. at 6.)
On Friday, April 4, 2008, Plaintiff was seen by Nurse Davenport, who recorded on Plaintiff's Progress Notes chart that both rounds of x-rays were negative and that she would "redo xray of sternum and give Motrin and Tylenol for pain. Will continue to monitor." (Def. Ex. D at 6.) On April 5, 2008, Plaintiff saw the CFG dentist, who noticed her bruising and swelling and prescribed her antibiotics. (PCF ¶¶ 74-75.)
The first doctor to see Plaintiff was Dr. Nugent, the sick doctor on call, on Monday, April 7, 2008, shortly after noon --one week after Plaintiff's fall. (DSF ¶ 14; Def. Ex. D at 6.) Dr. Nugent examined Plaintiff and ordered an off-site referral for Plaintiff to see an general surgeon for an incision and drainage of an abscess in her chest. (Id.) At 2:15 p.m. on April 7, an appointment was made for Plaintiff to see Dr. Salartash. (Def.
Dr. Salartash saw Plaintiff on April 9, 2008, at the Atlantic Coastal Surgery Office and ordered her to return the next day, April 10, for the incision and drainage. (Id. ¶ 15.)
Dr. Salartash performed part of the surgery on April 10, but, due to an infection, he referred her to Shore Memorial Hospital for a second procedure. (Id.; PCF ¶¶ 83-84; DRF ¶¶ 83-84.) Dr. Fred Weber's Operative Report from Shore Memorial Hospital dated April 18, 2008, explains that the second procedure performed was "[d]ebridement left supraclavicular joint with removal of articular cartilage" and the postoperative diagnosis was "[s]eptic arthritis of the left supraclavicular joint." (Pl. Ex.
A.) Plaintiff never returned to the ACJF. (DSF ¶ 6.)
ii. CFG's sick call policy
Section E: J-07.01 ("Inmate Care and Treatment") of the CFG Manual of Policies and Procedures for Health Services sets forth the sick call procedure to be followed in the ACJF. (Def. Ex. G at 1.) The stated purpose of the policy is to outline a systematic process to ensure "at least daily access to health care services from qualified health professionals" and that sick call requests "are documented and triaged within 24 hours of submission" and that "care is received immediately if emergent or within 48 hours of triage if non-emergent." (Id.) The policy provides for "nurse sick call" seven days a week, and "physician sick call" five days a week, with emergency services available at any time. (Id. ¶ 2.)
The "scheduled sick call" process is as follows: inmates*fn5 requesting medical care fill out sick call slips, which are handed to nurses during the daily "pill pass" when nurses distribute medicine to inmates. (Id. ¶¶ (A)(1)-(2).) All sick call slips are reviewed within 24 hours of collection and, importantly, "[a]ll requests will be reviewed by the nurse and the date, time and disposition of the review, along with the initials of the nurse will be indicated on the upper right hand corner of the sick call request." (Id. ¶¶ (A)(4)-(5).) A licensed practical nurse, or "LPN," sorts the sick call slips, which are given in turn to the nurses for "triage and disposition," meaning the slips will be placed on lists for the inmates to be seen by a nurse or a physician; "[t]his review will be done overnight." (Id. ¶ (A)(7)(b) and (g).) The Director of Nursing will flag whether any inmates must be seen immediately or in the morning, and "note the disposition on the sick call sheet." (Id. ¶ (A)(7)(h).) After the patients are seen, "ALL slips are to be returned to nursing from which the Sick Call Encounter Form will be generated." (Id. ¶ (A)(7)(k).)
In a subsection labeled "Injuries/Injury Reports," the policy provides that qualified health service unit personnel "will see and triage all injuries immediately upon notification" and that "[n]on-emergency sick call complaints will be seen (as practical) within 48 hours of the receipt of the sick call request." (Id. ¶ (A)(11)-(12).) "The health care providers will utilize the Sick Call Request form for the inmate to request a sick call encounter as well as documentation of the encounter. Once the inmate is seen and evaluated, the form will be completed, signed, dated and filed in the inmate's healthcare record." (Id. ¶ (A)(13).) The policy further provides that "[i]nmates evaluated two times for the same complaint by the NP [nurse practitioner] in a one-month period will automatically be referred to the next highest credentialed medical provider at the time of the third ...