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Braham v. Perelmuter

United States District Court, D. Connecticut

March 26, 2018

MICHAEL BRAHAM, Plaintiff,
v.
BRIAN PERELMUTER et al., Defendants.

          RULING RE: MOTION FOR SUMMARY JUDGMENT (DOC. NO. 170)

          JANET C. HALL UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Michael Braham (“Braham”) brings this action against Susan O'Loughlin (“O'Loughlin”), Dr. Brian Perelmuter, Dr. Johnny Wu, Commissioner Scott Semple, and Health Services Administrator Brown for a delay in providing him with dental care in violation of the Eighth Amendment. The court granted in part and denied in part a Motion for Summary Judgment brought by Dr. Perelmuter, Dr. Wu, Commissioner Semple, and Administrator Brown. (Doc. No. 166). O'Loughlin has now moved for summary judgment. (Doc. No. 170). For the reasons that follow, O'Loughlin's Motion for Summary Judgment is granted.

         II. FACTUAL BACKGROUND

         A. The System for Inmate Patient Specialty Services

         The Department of Correction (“DOC”) and Correctional Managed Health Care (“CMHC”) at UConn Health have an agreement in which CMHC employees are hired to provide dental care to inmate patients in the custody of the Commissioner of the DOC. Defs.' Local Rule 56(a)(1) Statement of Material Facts in Supp. of Summ. J. (“Def.'s L.R. 56(a)1”) (Doc. No. 170-2) at 1 ¶ 3; Pl.'s Local Rule 56(a)(2) Statement (“Pl.'s L.R. 56(a)2”) (Doc. No. 182-2) at 1-2 ¶ 3. Routine dental treatment, such as fillings, extractions, or removable dentures, are typically provided to inmate patients within the facility by CMHC-employed providers. Def.'s L.R. 56(a)1 at 2 ¶¶ 5-6; Pl.'s L.R. 56(a)2 at 2 ¶¶ 5-6. When a CMHC dental provider determines that an inmate patient requires specialty services, the provider submits a request on behalf of the inmate patient to the Utilization Review (“UR”) committee on a UR request form. Def.'s L.R. 56(a)1 at 2 ¶ 7; Pl.'s L.R. 56(a)2 at 3 ¶ 7.

         The provider assigns a priority to the request. Def.'s L.R. 56(a)1 at 2 ¶ 8; Pl.'s L.R. 56(a)2 at 3 ¶ 8. Priority 1 is an emergency that requires the requester to contact oral surgery for immediate approval; Priority 2 signifies that the request is urgent and should be treated within one week; Priority 3 indicates that care should be provided within three weeks; Priority 4 is routine treatment that should be done within two months; and Priority 5 is routine treatment that should be done within two to 13 months. Id. After reviewing the request, the UR committee, comprised of Dr. Richard Benoit, the Director of Dental Services, approves or denies it. Def.'s L.R. 56(a)1 at 3 ¶ 11; Pl.'s L.R. 56(a)2 at 4 ¶ 11. Dr. Benoit also approves or amends the provider's recommended prioritization. Pl.'s L.R. 56(a)2 at 4 ¶ 12.

         The parties dispute the scheduling process in effect during the times relevant to the instant case. According to O'Loughlin, once approved, requests were printed from the Utilization Review System on an outstanding appointment list, which could number over 20 pages. Def.'s L.R. 56(a)1 at 3 ¶¶ 14-15. The UR schedulers at CMHC faxed the list to the School of Dental Medicine and the School of Dental Medicine responded with appointment dates and times. Id. at 3 ¶ 16. Subsequently, Dr. Benoit reviewed the appointment requests to ensure that inmate patients who required prompt care were scheduled for treatment. Id. at 4 at ¶ 25. The UR scheduler then booked inmates to available appointments based on their priority classification. Id. at 3 ¶ 13.

         According to Braham, the process O'Loughlin described for scheduling inmate patient appointments is the current process, not the system in place during at least a portion of the time period during which Braham's treatment was delayed. Pl.'s L.R. 56(a)2 at 4 ¶ 13; Pl.'s L.R. 56(a)2, Additional Material Facts ¶ 23 ¶ 7. In “early 2014, ” when OMF received the fax with the outstanding appointment list, which included Braham beginning on March 10, 2014, the OMF clerks assigned the inmate patients to available appointments on a “first come, first served basis.” Pl.'s L.R. 56(a)2, Additional Material Facts ¶ 24 ¶ 15. Although the appointment list contained CMHC's priority designation, the OMF clerks did not use the number system, which they believed were security ratings, when filling appointment slots. Id. at 25 ¶¶ 17-18.

         B. Defendant O'Loughlin's Role

         O'Loughlin has worked for the UConn Health Center as a registered nurse since 1990 and currently works for the School of Dental Medicine, Department of Oral Maxillofacial Surgery (“OMF”) as a Clinical Nurse 3 and an Assistant Nurse Manager. Def.'s L.R. 56(a)1 at 4 ¶ 30; Pl.'s L.R. 56(a)2 at 8 ¶ 30. In the first several years in her positions, O'Loughlin's responsibilities consisted of providing care to patients directly and scheduling post-operating room (“OR”) appointments. Def.'s L.R. 56(a)1 at 5, 7 ¶¶ 31-33, 46; Pl.'s L.R. 56(a)2 at 8-9, 13 ¶¶ 31-33, 46. When the faxed appointment request list arrived at OMF, O'Loughlin separated the cases that she booked for post-operative OR appointments and wrote “post-op” on the list with the name of the doctor who had operated on the patient. Pl.'s L.R. 56(a)2, Additional Material Facts ¶ 24 ¶ 13. She then gave the rest of the list to the OMF clerks, who plugged in the appointment requests with available providers on a “first come, first served” basis. Id. at 24 ¶¶ 14- 15. Apart from the faxed list, O'Loughlin occasionally learned of a request for OMF services through telephone calls from CMHC requesting emergency service. Def.'s L.R. 56(a)1 at 5-6 ¶ 34; Pl.'s L.R. 56(a)2 at 9-10 ¶ 34.

         Soon after becoming the assistant nurse manager at OMF in 2010, O'Loughlin became aware that appointment requests for specialty service treatment were frequently delayed because the number of requests for elective services far exceeded the availability of the dental providers at OMF. Def.'s L.R. 56(a)1 at 6 ¶ 37; Pl.'s L.R. 56(a)2 at 10-11 ¶ 37; Pl.'s L.R. 56(a)2, Additional Material Facts ¶ 25 ¶ 19. O'Loughlin became aware of the backlog when she got calls from CMHC asking her what was happening or what she could do. Pl.'s L.R. 56(a)2, Additional Material Facts ¶ 25 ¶ 21. When O'Loughlin asked the clerks if they were making any progress with the list, their response was that they were not. Id.

         As a result, O'Loughlin volunteered to review the scheduling of all appointment requests. Def.'s L.R. 56(a)1 at 6 ¶ 39; Pl.'s L.R. 56(a)2 at 11 ¶ 39; Pl.'s L.R. 56(a)2, Additional Material Facts ¶ 25-26 ¶¶ 22-23. CMHC's priority designation for each appointment request was contained on the faxed list, but it did not enter into the decision-making process of O'Loughlin or the clerks. Pl.'s L.R. 56(a)2, Additional Material Facts ¶ 24-25 ¶¶ 16-18.

         Due to the backlog of requests for specialty service appointments and the amount of time O'Loughlin was spending assisting the clerks in providing dates for appointment requests with the appropriate department and dental providers, O'Loughlin requested that a meeting be held. Def.'s L.R. 56(a)1 at 8 ¶ 48; Pl.'s L.R. 56(a)2 at 13 ¶ 48. At the meeting, O'Loughlin, Dr. David Shafer, the head of OMF, Dr. Stephen Lepowsky, the Dean of Academic and Student Affairs at UCONN School of Dental Medicine, Dr. Benoit, and Erica Roman, Administrative Program Coordinator at CMHC, discussed how the process could be handled more efficiently to alleviate the backlog. Def.'s L.R. 56(a)1 at 8 ¶¶ 48-49; Pl.'s L.R. 56(a)2 at 13-14 ¶¶ 48-49; Richard Benoit Depo. (Nov. 15, 2017), Ex. 1 to Pl.'s Obj. to Def.'s Mot. for Summ. J. (Doc. No. 182-3) at 53; Affidavit of Erica Roman (“Roman Aff.”), Ex. 2 to Def.'s L.R. 56(a)1 at 1 ¶ 2. After the meeting, several changes to the process for scheduling inmates went into effect: O'Loughlin communicated the provider availability to CMHC; Dr. Benoit chose the patients that would be filled into O'Loughlin's oral surgery schedule; the roster was separated according to specialty; and OMF began consulting with and treating patients on the same day, if appropriate. Pl.'s L.R. 56(a)2, Additional Material Facts ¶ 29 ¶ 37. There is nothing in the record as to who had the authority to implement these changes.

         C. Braham's Delay in Treatment

         On January 21, 2014, Braham was seen by Dr. David Sochacki, a CMHC dentist, for generalized complaints of sensitivity at or near the location of the lower wisdom teeth. Def.'s L.R. 56(a)1 at 3 ¶ 17; Pl.'s L.R. 56(a)2 at 5 ¶ 17, Benoit Depo. at 30-31. Dr. Sochacki determined that Braham's lower wisdom teeth were impacted-a condition in which neighboring teeth block the wisdom teeth from erupting into the mouth-and recommended oral surgery for the extraction of the impacted wisdom teeth. Def.'s L.R. 56(a)1 at 3 ¶ 18; Pl.'s L.R. 56(a)2 at 5 ¶ 18. On February 25, 2014, Dr. Peter O'Shea, a different CMHC dentist, examined Braham, concurred with Dr. Sochacki's recommendation of surgical extraction of Braham's lower wisdom teeth, and prepared and submitted a request for off-site specialty service at UConn Health Center. Def.'s L.R. 56(a)1 at 4 ¶¶ 19-20; Pl.'s L.R. 56(a)2 at 6 ¶¶ 19-20; Benoit Depo. at 32. The surgical request indicated that the last panoramic film taken of Braham was in 2001 and that he had “mesioangular impacted 17 and 32. High caries risk.”[1] Def.'s L.R. 56(a)1 at 4 ¶ 21; Pl.'s L.R. 56(a)2 at 6 ¶ 21. Dr. O'Shea gave the request a Priority 4, meaning that it should be treated within two months. Def.'s L.R. 56(a)1 at 4 ¶ 22; Pl.'s L.R. 56(a)2 at 6 ¶ 22. The request was approved on March 10, 2014. Def.'s L.R. 56(a)1 at 4 ¶ 23; Pl.'s L.R. 56(a)2 at 6 ¶ 23.

         After February 2014, Braham experienced swelling, bleeding from infections in the pockets between his impacted wisdom teeth and his secondary molars, soreness, and terrible breath. Def.'s L.R. 56(a)1 at 9 ¶ 60; Pl.'s L.R. 56(a)2 at 16 ¶ 60. On February 14, 2015, Braham, still waiting for his surgical extraction, was summoned by Dr. Perelmuter for an examination. See Michael Braham Depo. (Apr. 6, 2016), Ex. 4 to L.R. 56a(1) (Doc. No. 170-6) at 32. That same day, Dr. Perelmuter cancelled the request for oral surgery and ...


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