Case 1:09-cv-00247-SM Document 60 Filed 12/14/09 Page 1 of 19
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert H . Boudreau, Plaintiff
v. Civil N o . 09-cv-247-SM Opinion N o . 2009 DNH 192 Celia Englander, M.D., Bernadette Campbell, P.T., John Eppolito, M.D., and Robert MacLeod, M.D. Defendants
O R D E R
Robert Boudreau is serving a criminal sentence in the New
Hampshire State Prison system and is currently housed at the
Northern New Hampshire Correctional Facility. In this suit,
Boudreau seeks compensatory and punitive damages, as well as
declaratory and injunctive relief, claiming defendants violated
his Eighth Amendment right to be free from cruel and unusual
punishment when they altered the prescription medications he had
been receiving to treat chronic back pain. See generally 42
U.S.C. § 1983. He also advances various state law claims for
negligence, medical malpractice, and intentional infliction of
emotional distress.
Following a two-day evidentiary hearing, the Magistrate
Judge issued a Report and Recommendation, in which he concluded
that Boudreau was likely to prevail on his Eighth Amendment Case 1:09-cv-00247-SM Document 60 Filed 12/14/09 Page 2 of 19
claims and recommended that the court grant his application for a
preliminary injunction. Report and Recommendation (document n o .
43). Defendants filed timely objections in which they urge the
court to reject the Report and Recommendation and deny Boudreau’s
motion for preliminary injunctive relief. See generally 28
U.S.C. § 636(b)(1)(C). See also Fed. R. Civ. P. 72(b).
As explained more fully below, preliminary injunctive relief
depends in significant part on Boudreau’s establishing that he is
likely to succeed on the merits of his Eighth Amendment claim.
To succeed on that claim Boudreau will have to persuade a finder
of fact, by a preponderance of the evidence, that the medical
care provided at the New Hampshire State Prison by the named
physicians was so substandard as to constitute “deliberate
indifference” to his serious medical needs.
Having carefully reviewed the record, including the
transcript of the hearing held before the Magistrate Judge, it is
apparent that Boudreau’s Eighth Amendment claim does not rest
upon facts from which a reasonable fact-finder could, or will
likely, conclude that the treating physicians acted with
deliberate indifference, at least not in the absence of expert
medical opinion evidence. That i s , this is not a case in which
it is plausibly alleged that doctors, being aware of a serious
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medical necessity and attendant suffering, nevertheless did
nothing, knowing that failure to intervene would continue and
exacerbate that suffering, or result in permanent damage.
Rather, this is a case in which Boudreau’s medical
condition, concededly serious chronic back pain, complicated by
the comparatively high doses of opioids he was taking, was
seemingly amenable to varying medical treatment strategies.
Different treatment alternatives involve different potential
benefits and risks that must be weighed and, in the end,
professional medical judgment must be exercised in deciding upon
an appropriate treatment plan. The hearing transcript discloses
strong disagreement about the proper (or perhaps only the
preferable) medical strategy that should have been pursued with
respect to Boudreau’s pain management. But, Boudreau is not
medically trained, nor is his legal counsel, nor is this court,
and Boudreau presented no expert medical evidence to contradict
that introduced by the defendants.
The medical care provided Boudreau to address his chronic
back pain may have been perfectly reasonable and well within
appropriate professional norms, or it may have been plainly
substandard. Perhaps it was so substandard that it rose to the
level of deliberate indifference for Eighth Amendment purposes.
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This factual record leaves the question open, however, and it is
inadequate to support a finding that Boudreau is likely to
establish “deliberate indifference” at trial. Indeed, as
currently developed, the record is inadequate to support a
finding that he is likely to establish even medical negligence at
trial.
Because Boudreau failed, as a matter of law, to demonstrate
that he is likely to prevail on the merits of either his Eighth
Amendment claim or any of his state common law claims, the court
cannot approve the Report and Recommendation. Boudreau’s motion
for preliminary injunctive relief is denied, as explained below.
Standard of Review
Pursuant to 28 U.S.C. §636(b)(1), the court reviews de novo
those portions of the report and recommendation to which a party
has filed a timely objection.
The Supreme Court has observed that “a preliminary
injunction is an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing,
carries the burden of persuasion.” Mazurek v . Armstrong, 520
U.S. 9 6 8 , 972 (1997) (quoting 11A C . Wright, A . Miller, & M .
Kane, Federal Practice and Procedure § 2948, at 129-30 (2d ed.
4 Case 1:09-cv-00247-SM Document 60 Filed 12/14/09 Page 5 of 19
1995)) (emphasis in original). Consequently, as the party
seeking preliminary injunctive relief, Boudreau bears a heavy
burden and must establish each of the following: (1) that he is
likely to succeed on the merits of his claims; (2) that he will
likely suffer irreparable harm in the absence of an injunction;
(3) that issuance of the requested injunction would burden the
defendants less than denying an injunction would burden Boudreau;
and (4) that issuance of an injunction is consistent with (or at
least not contrary to) the public interest. See, e.g., Waldron
v . George Weston Bakeries, Inc., 570 F.3d 5 , 9 (1st Cir. 2009);
Boston Duck Tours, LP v . Super Duck Tours, LLC, 531 F.3d 1 , 11
(1st Cir. 2008). “The sine qua non of this four-part inquiry is
likelihood of success on the merits: if the moving party cannot
demonstrate that he is likely to succeed in his quest, the
remaining factors become matters of idle curiosity.” New Comm
Wireless Serv. v . Sprintcom, Inc., 287 F.3d 1 , 9 (1st Cir. 2002)
(citing Weaver v . Henderson, 984 F.2d 1 1 , 12 (1st Cir. 1993)).
Discussion
I. The Eighth Amendment and Prison Medical Care.
To prevail on his Eighth Amendment claim for medical
mistreatment, Boudreau must show that prison officials
demonstrated “deliberate indifference to [his] serious medical
needs.” Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976). This test
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has both objective and subjective (state-of-mind) aspects. See
DesRosiers v . Moran, 949 F.2d 1 5 , 18 (1st Cir. 1991).
As the Supreme Court has noted, the Constitution “does not
mandate comfortable prisons, and only those deprivations denying
the minimal civilized measure of life’s necessities are
sufficiently grave to form the basis of an Eighth Amendment
violation.” Wilson v . Seiter, 501 U.S. 2 9 4 , 298 (1991) (citation
and internal quotation marks omitted). Consequently, under the
objective aspect of the deliberate indifference test, Boudreau
must show that he has suffered a serious deprivation of a
fundamental right or basic human need. See DesRosiers, 949 F.2d
at 1 8 . And, under the subjective aspect, he must demonstrate
that defendants were aware o f , yet consciously chose to
disregard, a substantial risk of serious harm to him. See Farmer
v . Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official cannot
be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”).
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An Eighth Amendment medical mistreatment claim, then, cannot
be premised upon a theory of simple negligence or even a clear
case of medical malpractice. Rather, to support an Eighth
Amendment claim, a medical care provider’s conduct must go beyond
negligence in diagnosing or treating a prisoner’s medical
condition. See Estelle, 429 U.S. at 105-06. Similarly, a
constitutional violation does not occur merely because a prisoner
disagrees with a nurse’s or physician’s decision regarding the
proper course of medical treatment. See, e.g., Ruiz-Rosa v .
Rullan, 485 F.3d 1 5 0 , 156 (1st Cir. 2007) (“[S]ubstandard care,
malpractice, negligence, inadvertent failure to provide care, and
disagreement as to the appropriate course of treatment are all
insufficient to prove a constitutional violation.”); Watson v .
Caton, 984 F.2d 5 3 7 , 540 (1st Cir. 1993) (“The courts have
consistently refused to create constitutional claims out of
disagreements between prisoners and doctors about the proper
course of a prisoner’s medical treatment, or to conclude that
simple medical malpractice rises to the level of cruel and
unusual punishment.”). Instead, to violate the Eighth Amendment,
the “care provided must have been so inadequate as to shock the
conscience,” Feeney v . Corr. Med. Servs., 464 F.3d 1 5 8 , 162 (1st
Cir. 2006) (citations and internal punctuation omitted), or it
must “constitute an unnecessary and wanton infliction of pain or
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be repugnant to the conscience of mankind,” Estelle, 429 U.S. at
105-06 (citations and internal punctuation omitted).
II. Defendants’ Treatment of Boudreau.
The relevant facts, largely undisputed, are set forth in
detail in defendants’ memoranda and the Magistrate Judge’s Report
and Recommendation. Accordingly, they need not be recounted in
detail. Those facts necessary to the disposition of this matter
are discussed as appropriate.
Before his most recent incarceration, Boudreau injured his
back and suffered three ruptured or herniated disks. He
underwent surgical procedures in 2000 and 2002. And, in 2006, he
had a third surgery while incarcerated, after which he was
advised that additional surgeries were not recommended. He was
encouraged to manage his continuing pain medically, and through
the use of a T.E.N.S. unit (a battery-operated device that
transmits electrical impulses to block nerve pain signals to the
brain). Since approximately 2004 or 2005, prison medical
professionals have prescribed narcotics to manage Boudreau’s
pain. Immediately prior to filing this lawsuit, Boudreau was
taking 210 mg of MS Contin per day, up from the 180 mg per day he
had been receiving at the end of 2008.
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MS Contin is a “controlled-release oral formulation of
morphine sulfate indicated for the management of moderate to
severe pain when a continuous, around-the-clock opioid analgesic
is needed for an extended period of time.” Physicians’ Desk
Reference (“PDR”) at 2586 (63rd ed. 2009). The PDR cautions that
“MS Contin 100 and 200 mg tablet strengths are high dose,
controlled-release, oral morphine formulations indicated for the
relief of pain in opioid-tolerant patients only.” Id. It goes
on to warn that, “[t]his strength is potentially fatal if
accidentally ingested and patients and their families should be
instructed to take special care to avoid accidental or
intentional ingestion by individuals other than those for whom
the medication was originally prescribed.” Id.
Defendant, D r . Celia Englander, is the Chief Medical Officer
for the New Hampshire Department of Corrections (“DOC”), and was
one of Boudreau’s treating physicians during his incarceration.
In January of 2008, D r . Englander wrote in a progress note that
DOC medical staff should consider tapering Boudreau’s
prescription for MS Contin. Transcript, Day 1 afternoon, at page
3 7 , line 1 5 . Later, in October of 2008, Boudreau filed an inmate
request slip in which he reported that he was “in constant pain
lately [and] the medication alone isn’t enough to quell the pain
I’m in.” Defendants’ Exhibit U . D r . Englander responded, saying
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she had reviewed his most recent MRI and it “looked great.” Id.
She also stated that “I see no indication for [additional]
narcotics.” Id. Subsequently, D r . Englander sought to have
Boudreau evaluated at the Dartmouth-Hitchcock Medical Center’s
Pain Management Center. On the form she submitted requesting
that evaluation, D r . Englander wrote that Boudreau was receiving
210 mg of MS Contin each day and was seeking an increase in that
medication, but his symptoms appeared disproportionate to
objective findings on an MRI. Transcript, Day 1 afternoon, page
45. Plainly, then, as early as January of 2008 and into 2009,
Dr. Englander was concerned about the high levels of MS Contin
Boudreau was taking, and had given thought to tapering him off
that medication.1 See, e.g., Transcript, Day 1 afternoon, at 4 8 .
See also Defendants’ Exhibit U .
In approximately June of 2009, D r . Eppolito began seeing
patients at the DOC in anticipation of establishing a pain
1 Medical witnesses testified that patients receiving opiates for an extended period of time can develop a tolerance for those medications and, therefore, require increasingly larger dosages to obtain the same pain-management benefit. Eventually, some patients reach dosage levels at or near the therapeutic limit - that i s , the dosage they need to obtain relief from pain approaches the level at which the drug can cause serious side- effects and/or death. Accordingly, it is often advisable for such patients to “taper” their dosage down, allow their bodies to adapt to that lower dosage, and then increase the dosage as necessary to obtain more effective relief. D r . Eppolito referred to this tapering as taking a drug “holiday.”
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management clinic for inmates. Transcript, Day 1 afternoon, at
57. He testified that the first patients he saw were the 30 or
so inmates receiving prescription morphine derivatives for pain
management. He met with Boudreau on June 3 0 , 2009. A
confrontational exchange developed, the details of which are
disclosed in the transcript. It is sufficient to note that D r .
Eppolito was concerned that Boudreau’s daily prescription for 210
mg of MS Contin was dangerously high and risked potentially
severe side effects. He was also concerned that, in light of
Boudreau’s October, 2008, inmate request slip (in which he stated
that his pain was not well-managed on his current dosage of MS
Contin), steps needed to be taken to address Boudreau’s
increasing tolerance to opiates. S o , apparently sharing some of
the same concerns expressed by D r . Englander, D r . Eppolito
concluded that it might be appropriate to taper Boudreau’s
prescription for MS Contin o r , as he put i t , to have Boudreau
take an opiate “holiday.”
Importantly, however, before ordering any tapering of
Boudreau’s prescription for MS Contin, D r . Eppolito first
consulted with other medical providers, including experts in pain
management. To that end, D r . Eppolito testified that he spoke
with: (1) D r . John Richman, another doctor working at the
Department of Corrections, who stated that Boudreau’s aggressive,
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angry, threatening conduct at the June 30 meeting was suggestive
of drug-seeking behavior (Transcript, Day 1 afternoon, at page
109, lines 21-23); (2) Chris Clough, a certified physician
assistant at a pain management clinic in Somersworth, New
Hampshire, who said a drug holiday would be “a reasonable idea at
this time” (id. at page 109, lines 1 - 4 ) ; (3) D r . Ross Jenkins at
the New Hampshire NeuroSpine Institute (the neurosurgeon who
performed Boudreau’s most recent surgery), who stated that a
“narcotic taper would be appropriate if patient was still having
pain on his current dose.” (id. at page 1 0 2 , lines 8-11); and (4)
Dr. Ralph Beasley at the Dartmouth-Hitchcock Medical Center’s
Pain Management Center, who opined that Boudreau’s large daily
dosage of morphine would likely cause problems with his immune
system and endocrine system, and stated that it would be
appropriate to taper his MS Contin prescription (id. at page
106). D r . Beasley’s notes from his telephone conversation with
Dr. Eppolito provide as follows:
Phone discussion with Doctor from State Prison. Patient reporting morphine not helping anymore and needs more morphine. Patient coming soon for medial branch blocks. On Effexor now.
Advised that 200 mg of morphine is our relative upper limit for treatment of chronic non-malignant pain and at that level you start seeing more immunologic suppression and effect on hormones such as Testosterone, etc. Suggested not to increase dose further and since morphine is not helping, it may be worth weaning off of an ineffective medication as it appears opioids are not effective for controlling his
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pain, and there is no need to give an ineffective drug with significant side effects.
Defendants’ Exhibit D (emphasis supplied).
Dr. Eppolito concluded that it was appropriate to taper
Boudreau’s MS Contin. But, as part of that process, several
other medications were prescribed, both to help manage Boudreau’s
pain and to help him sleep. Boudreau himself testified that he
was given Motrin, Mobic, Prednisone, Benadryl, and Neurontin, as
well as a T.E.N.S. unit. Transcript, Day 1 morning, pages 45-49.
He was also given Effexor. Transcript, Day 1 afternoon, page 4 9 ,
line 1 . Additionally, Boudreau was offered, but refused,
Trazodone (Transcript, Day 1 morning, page 4 8 , lines 10-12) and a
nerve block surgical procedure (Id. at page 5 4 , lines 9-13).
III. The Report and Recommendation.
In his report and recommendation, the Magistrate Judge
concluded that “Dr. Eppolito failed to adequately treat
Boudreau’s serious medical condition” and “acted with deliberate
indifference to Boudreau’s pain.” Report and Recommendation at
43. After careful review, I find the record support for those
factual and legal conclusions incomplete, particularly in one
dispositive respect.
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As noted above, to demonstrate that one or more defendants
were deliberately indifferent to his serious medical needs,
Boudreau is obligated to show more than mere negligence or even
medical malpractice. He has not, as a matter of law, met even
the lower standard. As the record stands, D r . Eppolito’s
unrebutted testimony is that, after consulting with at least four
other medical providers, he determined, as a licensed medical
professional, that Boudreau’s narcotic dosage should be tapered.
Each medical professional he consulted concurred that tapering
was an appropriate treatment response to Boudreau’s condition.
And, there was substantial testimony concerning the various
medications that were prescribed during that taper to help
alleviate Boudreau’s pain.
For his part, and this is critical, Boudreau did not offer
any expert medical opinion evidence tending to question or
contradict D r . Eppolito’s professional treatment decisions.
Instead, he merely produced evidence tending to show that he
continued to suffer pain, notwithstanding the treatment provided,
that his pain was not well-managed during the taper, or might
have been better managed, o r , in his opinion, managed
differently. Boudreau also presented evidence showing that he
refused to take some of the recommended medications (allegedly
due to his concerns about potential adverse side-effects), while
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those medications he did take did not adequately address his
pain. He also refused an offered nerve block procedure (again,
apparently due to personal concerns about potential side
effects). It may b e , as alleged, that defendants’ professional
efforts to manage Boudreau’s pain during the tapering period were
not a model of first-rate pain management care. It may also be
that the initial decision to taper Boudreau off MS Contin was
itself not the best medical approach under the circumstances.
The Magistrate Judge reached that very conclusion, finding that
“Dr. Eppolito jumped the gun in reducing Boudreau’s medication”
before a comprehensive pain management plan had been developed
and implemented by the pain management clinic team. Report and
Recommendation at 4 7 . There i s , however, no medical evidence in
the record suggesting that a “pain management plan” must be
developed and implemented by a “pain management clinic team”
before medical treatment decisions can be properly implemented by
a qualified physician, and there is little evidence suggesting
some untoward motivation behind D r . Eppolito’s medical judgment
(the Magistrate Judge rejected, for example, an implication that
budgetary problems were driving medical treatment decision).
This court lacks the medical training and expertise
necessary to determine, in the absence of expert opinion
evidence, whether the medical judgment exercised by the defendant
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physicians fell below an acceptable standard of professional
care, much less that the medical care provided to Boudreau was so
substandard as to implicate the Eighth Amendment. Stated
slightly differently, the medical care Boudreau did receive was
not so obviously and shockingly deficient that the court can
conclude, without the benefit of supporting expert medical
testimony, that Boudreau is likely to prevail on his Eighth
Amendment, or even his common-law tort, claims. Absent credible
expert medical evidence to support Boudreau’s position, the
evidence he did introduce at the hearing - particularly when
considered in light of the evidence produced by defendants - is
simply too weak to support even a suggestion that D r . Eppolito
was “deliberately indifferent” to his serious medical needs, or
that the medical care Boudreau received was “repugnant to the
conscience of mankind.” Estelle, 429 U.S. at 106. See also
Feeney, 464 F.3d at 162 (noting that “‘deliberate indifference’
defines a narrow band of conduct in this setting” and substandard
medical treatment, “even to the point of malpractice, is not the
issue”).
If Boudreau expects to prevail at trial on his
constitutional and/or state tort claims in this case, he will
need to present expert medical witness testimony. At the very
least, Boudreau will be required to show that the medical care he
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received fell below the standard of reasonable medical practice.
As the record currently stands, however, the following facts are
undisputed:
1. In October of 2008, Boudreau reported that his then-current dosage of MS Contin was not adequately managing his pain;
2. 210 mg of MS Contin daily is at the upper end of the therapeutic limit, and higher levels pose a substantial risk of serious physical and behavioral side-effects;
3. Given Boudreau’s situation, the medical decision to taper his daily intake of MS Contin was not obviously medically inappropriate;
4. During the tapering period, Boudreau was not ignored, but was prescribed numerous medications to help manage his pain (some of which he took, others he refused); and
5. Defendants provided Boudreau with a T.E.N.S. unit, and offered a surgical nerve block to alleviate his pain, which he refused.
Given those undisputed facts, and the uncontradicted medical
testimony presented, the court cannot conclude that Boudreau is
likely to prevail on his Eighth Amendment claim that defendants
subjected him to cruel and unusual punishment by demonstrating
deliberate indifference to his serious medical needs.
Finally, although not directly addressed in the Report and
Recommendation, given the absence of any expert medical evidence
supportive of Boudreau’s claims, this record also cannot support
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a legal conclusion that he is likely to prevail on his state
common law negligence or medical malpractice claims. See N.H.
Rev. Stat. Ann. ch. 507-E (requiring, in any case seeking
compensation for medical injury, expert medical testimony: (1) as
to the standard of reasonable medical practice in the particular
field or specialty at issue; (2) that the medical care provider
failed to act in accordance with that standard; and (3) that, as
a proximate result, the plaintiff suffered injuries). See also
Smith v . HCA Health Servs. of N.H., 159 N.H. 1 5 8 , ___, 977 A.2d
534, 538 (2009) (“The legislature enacted this statutory scheme
to contain the costs associated with medical malpractice suits by
elevating the evidentiary burden on plaintiffs, and by covering
all conceivable lawsuits against medical care providers. The
plaintiffs’ causes of action are plainly within the universe of
claims the legislature intended to cover.”) (citations and
internal punctuation omitted).
Conclusion
No one seems to doubt that Boudreau does suffer from chronic
pain. Nevertheless, the fact that he was in pain during the
tapering period - even substantial pain - does not, standing
alone, suffice to demonstrate that any defendant was
“deliberately indifferent” to his serious medical needs. As the
Supreme Court has observed, even “prison officials who actually
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knew of a substantial risk to inmate health or safety may be
found free from liability if they responded reasonably to the
risk, even if the harm ultimately was not averted.” Farmer v .
Brennan, 511 U.S. at 844. At this point, there is no evidence of
record sufficient to establish that any of the defendants failed
to act in a medically reasonable manner in either: (1) making the
initial decision to taper Boudreau’s MS Contin; or (2) attempting
to manage his pain during that “tapering” period with alternative
medical therapies.
For the foregoing reasons, the court must decline to accept
the Report and Recommendation (document n o . 4 3 ) . Plaintiff’s
motion for temporary restraining order and preliminary injunction
(document n o . 2 ) i s , therefore, denied, for failure to establish,
as a matter of law, the critical “likelihood of success on the
merits” element necessary to issuance of preliminary injunctive
relief.
SO ORDERED.
Steven J. McAuliffe Chief Judge
December 1 4 , 2009
cc: Michael J. Sheehan, Esq. Edward M . Kaplan, Esq. Martin P. Honigberg, Esq. Laura E . B . Lombardi, Esq.