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Bardo v. Wright

United States District Court, D. Connecticut

November 8, 2019

DR. CARSON WRIGHT, individually, Defendant.


          Janet Bond Arterton, U.S.D. J.

         Plaintiff 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.

         I. Background

         Plaintiff 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. ¶¶ 2-3.)

         A. Mr. Bardo's Treatment Prior To Entering Dr. Wright's Care

         On 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.[1] (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.[2] (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. 6.)

         On June 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.)[3] 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. (Id.)

         B. Mr. Bardo's Treatment While in Care of Dr. Wright

         On 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.)

         On 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.)

         On 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.)

         On 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." (Id.)

         The 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.)

         In a 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.)

         On 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.)

         On 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.)

         On 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 113.)

         On May 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 262.)

         In July 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 ...

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