Price v. Centurian of Delaware, LLC

• Court: Superior Court of Delaware
• Decided: November 15, 2022
• Docket: N21C-05-160 FWW
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MILLARD E. PRICE, ) ) Plaintiff, ) ) v. ) C.A. No. N21C-05-160 FWW ) CENTURION OF DELAWARE, LLC, ) CHRISTINE CLAUDIO, ANDREW ) ABRAHAMSON, JASKIR KAUR and ) AMBEGO TAFFA, ) ) Defendants. )

Submitted: October 31, 2022 Decided: November 15, 2022

Upon Defendants’ Motion for Summary Judgment GRANTED.

Millard E. Price, SBI No. 441452, Howard R. Young Correctional Institution, P.O. Box 9561, Wilmington, DE 19809, pro se.

Scott G. Wilcox, Esquire, MOORE & RUTT, P.A., The Mill, 1007 North Orange Street, Suite 437, Wilmington, DE 19801, Wilmington, Delaware 19801, Attorney for Defendants.

WHARTON, J. This 15th day of November, 2022, upon consideration the Motion for Summary

Judgment1 (“Motion”) of Defendants Centurion of Delaware, LLC (“Centurion”), Christine

Claudio (“Claudio”), Andrew Abrahamson (“Abrahamson”), Jaskir Kaur (“Kaur”), and

Ambego Taffa (“Taffa”) (collectively “Defendants”), Plaintiff Millard E. Price’s (“Price”)

Answer to Defendants’ Motion for Summary Judgment,2 and the record in this matter, it

appears to the Court:

1. In his pro se Complaint Price alleges two claims for relief – Deliberate

Indifference and Reckless and Emotional Infliction of Pain and Emotional Distress.3 A third

claim of Negligence and Malpractice was dismissed by the Court upon initial review for lack

of the required affidavit of merit.4 The claims are based on alleged mistreatment of Price by

the individual defendants as employees of Centurion of Delaware, LLC (“Centurion”), a

health care provider which provides services to inmates at correctional facilities such as the

one where Price is incarcerated.5

2. It appears from his Complaint that Price has undergone two spinal surgeries,

the second of which was performed on June 29, 2020 by neurosurgeon Tim [sic] Boulos,

M.D. through prison medical provider Centurion.6 Post-surgery, Price was prescribed

1 Defs.’ Op. Br. in Support of Mot. for Summ. J., D.I. 110. 2 Pl.’s Answer to Defs.’ Mot. for Summ. J., D.I. 112., D.I. 26. 3 Compl., D.I. 1. 4 D.I. 5. 5 Compl., D.I. 1. 6 Id., at ⁋ 11. 2 Tramadol for pain, but was discontinued after approximately six months.7 When Price

complained, Tramadol was renewed, but only at half strength.8 What followed was a series

of administrative grievances filed by Price, along with 31 sick call requests due to pain, and

meetings with the individual defendants including a meeting with non-party Dr. Boulos.9

According to the Complaint, none of the foregoing resulted in a resumption of his Tramadol

prescription or a referral to a pain management specialist.10

3. The remaining counts of the Complaint are Count 1 – “Deliberate Indifference”

and Count 2 – “Reckless and Emotional Infliction of Pain and Emotional Duress.” Count 1

alleges that the Defendants have “treated Plaintiff with deliberate indifference to his pain

stemming from a serious medical condition and thereby failed to provide him with adequate

medical care as mandated by Delaware Statutory Law and the Delaware and U.S.

Constitutions.11 Count 2 alleges that “Defendants have subjected Plaintiff to reckless and

intentional infliction of physical pain and emotional duress, an intentional tort, by the gross

and outrageous misconduct of refusing to prescribe pain medication for a serious medical

condition.”12 He seeks “general, compensatory, special, and punitive damages, Court costs,

post-judgment interest, pre-judgment interest, and such reasonable attorney fees should

7 Id., at ⁋ 13. 8 Id. 9 Id., at ⁋⁋ 14-27. 10 Id., at ⁋ 26. 11 Id., at ⁋ 29. 12 Id., at ⁋ 32. 3 Plaintiff elect to solicit an attorney…”13

4. The Defendants make three arguments in support of summary judgment.

First, as to Count 1, Price cannot demonstrate deliberate indifference to support his claim of

an Eighth Amendment violation against the individual defendants.14 Further, there is no

evidence that Defendant Centurion of Delaware, LLC (“Centurion”) adopted a policy or

procedure that caused Price’s Eighth Amendment claims.15 As to Count 2, there is no

evidence that the Defendants’ treatment of Price’s medical conditions was extreme or

outrageous.16

5. Specifically, as to Count 1, the individual defendants maintain they were not

deliberately indifferent to Price’s medical condition, specifically his pain symptoms, when

they declined to continue prescribing Tramadol at the levels he requested. In fact, Price’s

medical records show that they saw him continually after his second surgery and treated him

reasonably for his pain.17 The individual defendants’ concern in continuing Price on

Tramadol was that long term use of that narcotic drug can cause harm to the kidneys, and

Price’s elevated creatinine levels demonstrated acute kidney injury.18 Their plan was to wean

Price off of narcotics gradually and to prescribe medications which were less harmful to his

13 Id., at 19. 14 Defs.’ Op. Br., at 5-8, D.I. 110. 15 Id., at 8-10. 16 Id., at 10-12. 17 Id., at 6-8. 18 Id., at 7. 4 kidneys directed to his areas of pain.19 Moreover, the individual defendants, citing Third

Circuit precedent, argue that Price cannot meet his burden so show that he has a serious

medical need in the absence of expert medical testimony.20 The corporate defendant,

Centurion, contends that settled law precludes it from being held liable for the constitutional

violations of its employees under a respondeat superior or vicarious liability theories unless

those violations were the result of a policy or custom, where that practice reasonably can be

said to amount to deliberate indifference to the plaintiff’s serious medical need.21 Here, Price

has identified no such policy or custom.22

6. Turning to Count 2, the Defendants argue that Price has not met his burden of

producing evidence to establish extreme and outrageous conduct which intentionally caused

him severe emotional distress.23 Rather, the record only supports the conclusion that the care

Price was provided was anything but extreme and outrageous.24

7. Price opposes the Motion and has submitted his own affidavit in support of his

opposition.25 As to Count 1, he contends that his two back surgeries and the prospect of a

third constitute a sufficiently serious medical condition to warrant Eighth Amendment

19 Id. 20 Id., at 6, (citing Heath v. Shannon, 442 Fed. Appx. 712, 716 (3d. Cir. Aug. 25, 2011)(citing Boring v. Kozakiewicz, 833 F. 468, 473 (3d. Cir. 1987)). 21 Id., at 8-9. 22 Id., at 9. 23 Id., at 10-11. 24 Id., at 11. 25 Pl.’s Ans. to Defs.’ Mot. for Summ. J., D. I. 112. 5 protections.26 Further, whether the Defendants had the requisite mental state for an Eighth

Amendment violation – deliberate indifference – is a genuine issue of material fact not

susceptible to a determination on summary judgment.27 With regard to Centurion, Price

argues that it, along with the Department of Corrections (“DOC”), are jointly tasked with

developing policies in compliance with the “National Correctional Association (NCCHA),

ACA and Bureau of Prisons (BOP), and all state and federal laws.”28 According to Price,

this policy, known as the “Pain Management Initiative,” was introduced at Howard R. Young

Correctional Institution pursuant to DOC Policy No. A-02 and implemented by Health

Services Administrator, Defendant Claudio.29 The policy eschews banning opioids – they

should be considered with caution after weighing other treatment options.30 He alleges that,

despite the absence of a ban on opioids, Centurion has a practice of systematically refusing

to prescribe them to treat chronic pain and other health issues without regard to a patient’s

individualized needs.31

8. Regarding Count 2, he states that Defendant Toffa “made an extreme and

outrageous racial comment in the administration of his duties as a health care provider” and

“made outrageous conclusory statements that plaintiff suffers ‘acute kidney injury’ which is

26 Id., at 2. 27 Id. 28 Id., at 4. 29 Id. 30 Id., at 4-5. 31 Id., at 5. 6 totally contradicted by laboratory tests…” for the sole purpose of denying him pain relief.32

In sum, he argues that he has provided evidence through exhibits attached to his Answer to

the Motion that demonstrate: (1) many medical experts consider his condition a serious one

requiring treatment; (2) Defendants, who are not experts, caused excessive delays in his

treatment and circumvented treatment recommended by the Pain Management Initiative;

and (3) he has been suffering for two years due to the Defendants’ policy of non-compliance

with the Pain Management Initiative.33

9. Superior Court Civil Rule 56 provides that summary judgment is appropriate

when “there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.”34 The moving party initially bears the burden of

demonstrating that the undisputed facts support its claims or defenses.35 If the moving party

meets its burden, the burden shifts to the non-moving party to show that there are material

issues of fact to be resolved by the ultimate fact-finder.36 When considering a motion for

summary judgment, the Court’s function is to examine the record, including “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any,” in the light most favorable to the non-moving party to determine whether genuine issues

32 Id. 33 Id. 34 Super. Ct. Civ. R. 56(c); Buckley v. State Farm Mut. Auto. Ins. Co., 139 A.3d 845, 847 (Del. Super. Ct. 2015), aff'd, 140 A.3d 431 (Del. 2016) (quoting Moore v. Sizemore, 405 A.2d 679, 680 (Del.1979). 35 Sizemore, 405 A.2d at 681. 36 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995). 7 of material fact exist “but not to decide such issues.”37 Summary judgment will only be

appropriate if the Court finds there is no genuine issue of material fact. When material facts

are in dispute, or “it seems desirable to inquire more thoroughly into the facts, to clarify the

application of the law to the circumstances,” summary judgment will not be appropriate.”38

However, when the facts permit a reasonable person to draw but one inference, the question

becomes one for decision as a matter of law.39

10. In Estelle v. Gamble the United States Supreme Court held that the Eighth

Amendment to the United States Constitution’s ban on cruel and unusual punishment

requires state prison officials to provide inmates with adequate medical care.40 “Deliberate

indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton

infliction of pain’ proscribed by the Eighth Amendment.”41 In order to establish a violation

of that ban related to medical care, an inmate plaintiff must establish; (1) a serious medical

need; and (2) acts or omissions by prison officials that show a deliberate indifference to that

need.42 The Delaware Supreme Court explained in Johnson v. Connections Community

Support Programs, Inc. that “a medical need is sufficiently serious if a physician has

diagnosed it as requiring treatment or if it is one that is so obvious that a layperson could

37 Super. Ct. Civ. R. 56(c); Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992). 38 Ebersole v. Lowengrub, 180 A.2d 467, 468-60, (Del. 1962) (citing Knapp v. Kinsey, 249 F.2d 797 (6th Cir. 1957)). 39 Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967). 40 429 U.S. 97, 103-105 (1976); Farmer v. Brennan, 511 U.S. 825 (1994). 41 Estelle, at 104. 42 Id. 8 easily recognize the need for a physician’s attention.”43 Deliberate indifference occurs when

a state actor knows that a prisoner faces a substantial risk of serious harm and fails to take

reasonable steps to avoid the harm.44

11. Here, Price maintains that the seriousness of his medical need is manifest due

to his two surgeries and the prospect of a third. But, that argument misidentifies Price’s

medical need. It is not Price’s surgical needs to which he claims Defendants were

deliberately indifferent that are at issue here. It is his pain management needs. Relying on

Heath v. Shannon,45 Defendants contend that Price must present expert testimony to meet

his burden under Estelle to establish a serious medical need. The Court disagrees. Consistent

with Johnson, Price had already been diagnosed by a physician as needing pain management

treatment.46

12. The Court turns next to the question of whether there is a genuine issue of

material fact as to whether the Defendants were deliberately indifferent to Price’s medical

need. Before doing so, however, it is important to recognize that a disagreement about the

appropriate treatment for a medical need is not the same thing as deliberate indifference to

it, even if that treatment later proves not to have been the better option. Nor is medical

43 2018 WL 50443331, at *2 (Del. Oct. 16, 2018) (citing Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d. Cir. 1987). 44 Farmer v. Brennan, at 837. 45 442 Fed.Appx., 712, 714 (3d. Cir. 2011) (citing Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d. Cir. 1987). 46 See, Johnson, at *2. 9 negligence necessarily deliberate indifference to a patient’s medical needs. The United

States District Court for the District of Delaware has recognized in Blackston v. Correctional

Medical Services, Inc. that:

An inmate’s claims against members of a prison medical department are not viable under § 1983 where the inmate receives continuing care but believes that more should be done by way of diagnosis and treatment and maintains that options available to medical personnel were not pursued on the inmate’s behalf.47

13. Price maintains that the deliberate indifference element of his Eighth

Amendment claim implicates the Defendants’ culpable state of mind and, thus, is inherently

subjective and incapable of resolution by summary judgment.48 The Court disagrees. The

record before the Court includes Prices’ medical records. Those records detail the actions

taken by the Defendants in response to Price’s pain complaints. They allow the Court to

determine objectively whether a genuine issue of material fact exists as to whether the

Defendants were deliberately indifferent to Price’s medical needs.

14. The dispute here centers on the Defendants’ refusal to prescribe Tramadol at

the strength Price desired. As described by Defendant P.A. Toffa in the sick call notes from

January 5, 2021:

Patient is seen today in the office as he has been unhappy with his pain medication regimen. Patient has been getting Tramadol 100 mg BID for the longest (months , even prior to surgery), and now 6 months post op he still wants high dose of Tramadol. The

47 499 F.Supp. 2d 601, 605 (D. Del. 2007). 48 Pl.’s Ans. to Defs.’ Mot. for Summ. J., at 2, D.I. 112. 10 plan is to wean patient off narcotics gradually so his Tramadol dose has been lowered from 100 mg to 50 mg BID. Patient reports that pain is more manageable now but he still experiences numbness and tingling mainly in left lower extremity. I explained to patient that we need to check labs first to assess his kidney function as chronic Tramadol use is harmful for the kidneys, but patient insists on me increasing Tramadol dose. Most recent labs from June 2020 with Creatinene of 1.23 (acute kidney injury) – which even justifies cautious use of Tramadol in this patient.49

On January 25, 2021, Price was seen by Defendant Dr. Abrahamson.50 During that visit, Dr.

Abrahamson discussed with Price “how tramadol and narcotics are more used for acute

issues, such as an acute injury or perioperatively” and “how Tylenol <3gm/day would be

safe for his kidney in someone who is already on HCTZ and lisinopril with a creat >1.2 and

should not be harmful for his liver.”51 Dr. Abrahamson submitted a memorandum requesting

that price be given a bottom bunk and that his use of stairs be minimized.52 On February 8,

2021, when Price reported that his symptoms had not improved with Tylenol, Dr.

Abrahamson restarted him on Tramadol at the lower dosage of 50 mg in addition to

Tylenol.53 Price was seen again on February 22, 2021 by Defendant N.P Kaur.54 As a result

of that visit, Price was referred for physical therapy and would be referred for pain

49 Pl.’s Ans. to Defs.’ Mot. for Summ. J., at Ex. G, D.I. 112. 50 Id., at Ex. I. 51 Id. 52 Defs.’ Op. Br. in Support of Mot. for Summ. J., at Ex. A., D.I. 110. 53 Pl.’s Ans. to Defs.’ Mot. for Summ., D.I. 112. 54 Id., at Ex. J. 11 management if there was no improvement in his pain level.55 Defendant N.P. Kaur

discussed the risks and benefits of Tramadol with Price who refused to taper his current

dosage.56 Price also was encouraged to continue his weight loss and exercise.57 Ultimately,

Price was sent to Uday Uthaman, M.D. a pain management specialist, on June 28, 2021.58

15. The facts do not present a genuine issue as to whether the Defendants were

deliberately indifferent to Price’s medical needs. They were not. The record establishes that

the Defendants provided Price with consistent medical care, the basis for which they

explained to him repeatedly. Price strongly disagrees with the Defendants’ decision to wean

him off of the narcotic Tramadol.59 He also believes that the Defendants were medically

negligent in the course of treatment they followed for him.60 But, Price “has no right to

choose a specific form of medical treatment, so long as the treatment is reasonable.”61 The

reasonableness of the treatment provided to Price is an issue that can be raised only through

expert medical testimony. Such testimony is absent here. Because here was no Eighth

Amendment violation on the part of the individual defendants, there can be no derivative

55 Id. 56 Id. 57 Id. 58 Id., at Ex. N. 59 Price disputes that his creatinine levels were high enough to warrant concern that he was at risk of kidney damage. Ans. to Defs.’ Mot. for Summ. J. at 2 (citing Ex. H). Whether they were or were not may be relevant to the propriety of Price’s treatment, but it not evidence of intentional disregard of his medical needs. 60 See, Complaint, Count 3, Negligence and Malpractice, D.I. Dismissed for lack of an Affidavit of Merit, D.I. 5. 61 Blackston, at 605. 12 violation by Centurion on a theory of either respondeat superior or vicarious liability.

Accordingly, Defendants’ Motion for Summary Judgment as to Count 1 is GRANTED.

16. In order to establish a claim for intentional infliction of emotional distress, a

plaintiff must establish that a defendant “by extreme and outrageous conduct intentionally or

recklessly causes severe emotional distress to another.”62 If bodily harm results from the

conduct, the defendant is liable for that as well.63 “Extreme and outrageous conduct is that

which “exceeds the bounds of decency and is regarded as intolerable in a civilized

community.”64 Here, Price has not produced competent expert medical testimony that the

care provided him was unreasonable, much less that it “exceeds the bounds of decency and

is regarded as intolerable in a civilized community.” The Motion for Summary Judgment is

GRANTED as to Count 2.

THEREFORE, the Motion for Summary Judgment of Defendants Centurion of

Delaware, LLC, Christine Claudio, Andrew Abrahamson, Jaskir Kaur, and Amegbo Taffa is

GRANTED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton Ferris W. Wharton, J.

74 Spence v. Cherian, 135 A. 3d 1282, 1288, 89 (Del. Super. Ct. 2016) (quoting the Restatement (Second) of Torts, § 46). 63 Fanean v. Rite Aid Corp. of Delaware, 984 A. 2d 812, 818 (Del. Super. Ct. 2007). 64 Thomas v. Hartford Mut. Ins. Co., 2004 WL 1102362, at *3 (Del. Super. CT. Apr. 7, 2004). 13