United States District Court, D. Connecticut
RULING DENYING DEFENDANT'S MOTION FOR SUMMARY
Bond Arterton, U.S.D. J.
Jeffrey Bardo brings this civil rights action pursuant to 42
U.S.C. § 1983 against Defendant Carson Wright, a
physician at the state prison where plaintiff was
incarcerated. Mr. Bardo alleges that Dr. Wright violated his
Eighth Amendment rights by acting with deliberate
indifference toward his facial lesion, which was later
diagnosed as basal cell carcinoma. Dr. Wright now moves for
summary judgment [Doc. # 27]. For the reasons that follow,
Defendant's Motion for Summary Judgment is denied.
Jeffrey Bardo is a former Connecticut state prisoner, who
entered Connecticut Department of Correction
("DOC") custody on August 24, 2012 and was housed
at a variety of DOC facilities during his imprisonment term.
(Parties' L.R. Stmts. [Docs. ## 27-14, 28-1] ¶ 1.)
Defendant Carson Wright is a physician who provided medical
care to DOC inmates while Mr. Bardo was incarcerated at Carl
Robinson Correctional Institution. (Id.
Mr. Bardo's Treatment Prior To Entering Dr. Wright's
December 16, 2012, while incarcerated at the Willard Cybulski
Correctional Institution, Mr. Bardo submitted a medical
request stating that he had "an odd spot on [his] face
that need[ed] to be checked out." (Ex. 3 (Medical
Request Forms) to Pl.'s Opp. [Doc. # 28-4] at 2.) Two
days later, on December 18, 2012, Mr. Bardo saw a DOC
physician, Dr. Michael Clements. (Parties' L.R. Stmts.
¶¶ 5, 6.) Dr. Clements documented the
"spot" on Mr. Bardo's medical chart, describing
it as a two-centimeter sebaceous cyst. (Id.
¶ 6.) Dr. Clements also provided an illustration of the
spot, sketching a face with a round circle on the right cheek
just below the eye. (Id.) Dr. Clements made these
observations without "measuring] the cyst... with a
ruler," instead making a visual
estimation. (Ex. 3 (Clements Decl.) to Def.'s Mot.
for Summ. J. [Doc. # 28-3] ¶ 3.) Dr. Clements
"advised Bardo to watch for enlargement of the cyst and
for progression of symptoms, such as pain or tenderness and
changes in color, shape or size." (Id.
18, 2013, while incarcerated at Osborn Correctional
Institution, Mr. Bardo visited the medical unit regarding a
"bump under the skin of his abdomen." (Parties'
L.R. Stmts. ¶ 12.) The clinical record from that visit
states that Mr. Bardo asked about an "old scar on his
face" and said he did "not know how it got
there" and that it would "not go away." (Ex. 4
(Clinical Records) to Def.'s Mot. for Summ. J. [Doc. #
27-4] at 242.) Mr. Bardo visited Osborn's medical
unit again on July 5 and 30, 2013, but clinical records from
those visits do not reference the facial lesion.
Mr. Bardo's Treatment While in Care of Dr.
August 15, 2013, Mr. Bardo was transferred to Carl Robinson
Correctional Institution, where Dr. Wright treated inmates.
(Parties' L.R. Stmts. ¶¶ 1, 4.) On August 20,
2013, Mr. Bardo submitted a medical request stating, "I
have a spot on my face and also a strange lump on my stomach
and would like to have them both checked out." (Medical
Request Forms at 3.) The next week, on August 28, he filed a
nearly identical request regarding the "spot on [his]
face." (Id. at 4.)
August 31, 2013, Bardo was seen by Nurse Thaddeus Burgmeyer
at the Robinson medical unit. (Parties' L.R. Stmts.
¶ 15.) In the clinical note for the visit, Nurse
Burgmeyer "documented that Bardo explained that he had
skin discoloration and a bump under his right eye" for
"x years." (Id.) Nurse Burgmeyer described
the "bump" as a "non-raised mass that was not
crusty, had no drainage, was hard but not movable, was firm
and had positive pigmentation that was the same as the skin
color but more pink at its surrounding edges."
(Id.) Nurse Burgmeyer also wrote a note indicating
that a sick call should be "scheduled for further
evaluation]." (Clinical Records at 239.)
November 20, 2013, Mr. Bardo saw Defendant Dr. Wright in the
Robinson medical unit for the first time. (Parties' L.R.
Stmts. ¶ 16.) As part of the visit, Dr. Wright had
opportunity to review Mr. Bardo's clinical
records-including the notes by Dr. Clements and Nurse
Burgmeyer-as was his standard practice when treating a
patient. (Ex. 5 (Wright Dep.) to Pl.'s Opp. [Doc. # 28-6]
at 67, 71-72, 78.) During this visit, Dr. Wright observed Mr.
Bardo's stomach lump and facial lesion. (Parties'
L.R. Stmts. ¶ 15.) However, Dr. Wright did not touch the
facial lesion for a physical examination. (Wright Dep. at
81.) In his notes, Dr. Wright drew a diagram depicting the
facial lesion on the right cheek below the right eye.
(Clinical Records at 239.) Mr. Bardo recalls that during this
visit, he "expressed concern about the lesion on his
face to Dr. Wright and asked if it could be skin
cancer," to which "Dr. Wright responded that it was
not." (Ex. 1 (Bardo Decl.) to Pl.'s Opp. [Doc. #
28-2] ¶ 2.)
March 18, 2014, Mr. Bardo saw Nurse Linda Oeser at the
Robinson medical unit for a variety of ailments.
(Parties' L.R. Stmts. ¶ 27.) In her medical note,
Nurse Oeser wrote “eval facial lesion (? biopsy),"
(Clinical Records at 164), which the parties understand to
mean that it was necessary to "schedule a medical doctor
sick call to evaluate a facial lesion with an indication that
the medical doctor, who would be [Defendant] Carson Wright,
might consider a biopsy." (Parties' L.R. Stmts.
¶ 27.) She recorded that the "lesion had
been present for 1-2 years," and she noted
telangiectasia, which refers the presence of "dilated
capillaries, which are prominent small blood vessels."
next week, on March 24, 2014, Mr. Bardo had his second and
final appointment with Dr. Wright regarding the lesion.
(Id. ¶ 28.) As part of the examination, Dr.
Wright "recorded that that Bardo had a lesion on his
face for 2-3 years" that was “indurated"-that
is, firm and fibrous- but not tender or itchy. (Id.)
In his note, Dr. Wright sketched Mr. Bardo's face and
placed a circle on the right cheek. (Clinical Records at
233.) In shorthand, Dr. Wright wrote "rule out"
tinea versicolor, a fungal infection. (Parties' L.R.
Stmts, ¶ 28.) For treatment, Dr. Wright prescribed an
antifungal cream, Lotrimin 1%, and a steroid cream,
triamcinolone 0.1%, to be mixed in equal parts and applied to
the lesion daily for 30 days. (Id.) Dr. Wright also
noted that a medical doctor sick call for follow-up should be
made in 30 days. (Clinical Records at 233.) These sick calls
are typically scheduled by nurses. (Parties' L.R. Stmts.
¶ 33.) Of this visit, Mr. Bardo recalls that Dr. Wright
told him that his lesion was likely ringworm. (Ex. 3 (Bardo
Dep.) to Def.'s Reply [Doc. # 36-3] at 95.)
deposition, Dr. Wright explained that he diagnosed the lesion
as tinea versicolor without conducting a differential
diagnosis because that fungus was very common at Robinson.
(Wright Dep. at 87-93.) A differential diagnosis involves
identifying the possible medical outcomes and then narrowing
down options according to how the symptoms manifest. Dr.
Wright acknowledged that it is standard practice for doctors
to make differential diagnoses, but his "thought process
told [him] it was tinea" and that "if you kind of
know what it is, you can sort of follow suit."
(Id. at 93, 96.) He also acknowledged that the
prison medical unit did not perform biopsies, and that
"there's a lot of steps" before a doctor can
refer a patient to an outside specialist. (Id. at
97-98.) Specifically, Dr. Wright would have needed to fill
out a form and make a referral request to a Utilization
Review Committee ("URC"). (Ex. 2 (Wright Decl.) to
Def.'s Reply [Doc. # 36-2] ¶¶ 3, 4.)
March 31, 2014, Dr. Wright learned that Mr. Bardo had not
received one of the topical creams that he had prescribed.
(Wright Dep. at 11.) He entered a new physician's order
that day, changing "the dose and duration of the
triamcinolone (increasing it from once a day to twice a day
and from 30 days to 60 days)." (Parties' L.R. Stmts.
¶ 34.) That order also shows a notation to
"discontinue" the prior prescription for
triamcinolone and Lotrimin. (Clinical Records at 163.) Dr.
Wright avers that "Lotrimin" is not written in his
handwriting and that he never discontinued the drug. (Wright
Decl. ¶¶ 7, 10.) Dr. Wright has also declared that
it is possible that he gave the Lotrimin directly to Mr.
Bardo during the office visit. (Id. ¶ 13.) Mr.
Bardo also recalls receiving a topical medication in person.
(Bardo Dep. at 95.)
April 27, 2014, Mr. Bardo submitted another request, stating
that he "was recently put on some creme for a spot on my
face" and it "is not working at all." (Medical
Request Forms at 6.) The request asked, "Could we please
try something else?" (Id.)
April 28, 2014, Bardo was seen in the Robinson medical unit
by Nurse Margo Griffin. (Parties' L.R. Stmts, ¶ 35.)
She recorded that Mr. Bardo "told her that his facial
'rash' was still there and that the cream prescribed
by Dr. Wright 'made it come out more.'"
(Id.) She noted that "the rash was red and
round, was located below the right eye, and was flaking
without drainage"-that is, "the skin [was] getting
dry and scaly or that the skin [was] coming off like
dandruff." (Id.) In his deposition, Dr. Wright
testified that he took this information to mean that the
cream he prescribed was having some effect. (Wright Dep. at
5, 2014, Dr. Wright noted in his physician's orders that
he discontinued the triamcinolone and had "entered a new
order of Clobetasol 0.05%," another steroid cream,
"to be applied twice a day for 3 months." (Clinical
Records at 163.) Dr. Wright did not see Mr. Bardo prior to
making this change, and instead altered the prescription
based on Nurse Griffin's notes. (Wright Dep. at 113-14,
117-21.) On May 7, 2014, Mr. Bardo confirmed with Nurse
Griffin that he received the Clobetasol. (Clinical Records at
2014, Mr. Bardo sought a transfer to a halfway house.
(Parties' L.R. Stmts. ¶ 41.) This required a
reduction to his designated medical level, which DOC scores
on a range from one to five. (Id.) On July 25, 2014
Dr. Wright adjusted ...