United States District Court, D. Connecticut
RULING RE: MOTION FOR SUMMARY JUDGMENT (DOC. NO.
C. HALL UNITED STATES DISTRICT JUDGE
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.
The System for Inmate Patient Specialty Services
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 ¶
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 ¶
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.
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.
Defendant O'Loughlin's Role
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.
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.
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.
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.
Braham's Delay in Treatment
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.” 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.
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 ...