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Reed v. United States

United States District Court, E.D. Virginia, Alexandria Division

March 25, 2015

Trevor Reed, Plaintiff,
United States of America, Defendant.


LEONIE M. BRINKEMA, District Judge.

Trevor Reed, a federal inmate confined in the Eastern District of Virginia and proceeding pro se, has filed a civil action alleging medical malpractice pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), § 2671. Specifically, plaintiff claims that he suffered injury to his left arm on March 5, 2013, when he received a single injection containing both the flu vaccine and the pneumonia vaccine at FCC Petersburg ("Petersburg"). The matter is before the Court on the remaining defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. After careful consideration, defendant's motion will be granted, and summary judgment will be entered in its favor.

I. Procedural History

Plaintiff initiated this action with a Complaint filed on March 7, 2014. [Dkt. No. 1]. In an order dated March 14, 2014, plaintiff was directed either to pay the appropriate tiling fee or to apply to proceed in forma pauperis. In the same order, the Court dismissed plaintiff's claims against two of the three defendants, the Federal Bureau of Prisons ("FBOP") and J. Fajardo for failure to state a claim, pursuant to 28 U.S.C. § 1915(A)(b)(1). [Dkt. No. 2]. Plaintiff paid the filing fee, and by an order dated April 9, 2014, the Complaint was deemed filed and the remaining defendant, the United States of America, was directed to respond within sixty (60) days. [Dkt. No. 5].

On May 13, 2014, plaintiff filed a motion seeking relief in relevant part regarding a letter sent to him by the United States Attorney, requesting "a copy of the expert witness opinion certification required under Virginia Code § 8.01-20.1." In an order dated May 23, 2014, service on the defendant was quashed to allow plaintiff an opportunity to obtain an expert opinion to comply with that provision, or otherwise to provide medical records showing that he fit within its exception. [Dkt. No. 14]. On June 17, 2014, plaintiff filed a Motion in Request [sic] for Service on the Defendants to which he attached an Affidavit of Medical Opinion by Dr. Peter E. McNeil ("Dr. McNeil"). [Dkt. No. 181. That affidavit was found "to satisfy the basic requirements of Virginia Code § 8.01-20.1, " and plaintiff's request to perfect service on the defendant accordingly was granted. Dkt. No. 19].

On August 25, 2014, the United States filed a Motion to Dismiss or in the Alternative, Motion for Summary Judgment, along with a supporting memorandum and exhibits.[1] [Dkt. Nos. 25 and 26]. Plaintiff responded to this motion on September 18 and 23, 2014 [Dkt. Nos. 29 and 30] and on September 24, 2014 defendant filed a reply to plaintiff's response. [Dkt. No. 31]. It is undisputed that plaintiff has properly exhausted his administrative remedies by filing an administrative tort claim with the FBOP.[2] Accordingly, this matter is ripe for disposition.

II. Factual Background

The following material facts are undisputed.[3] On March 5, 2013, plaintiff received both the flu vaccine "Fluzone" and the pneumonia vaccine "Pneumovax" at FCC Petersburg. Although the vaccines were stored in two separate vials, both were drawn into the same syringe and administered to plaintiff in his left arm in a single injection. Compl. ¶ 6; Def. Ex. A ¶ 10. Physician's Assistant Joseph Fajardo administered the vaccines in that manner to minimize discomfort. Def. Ex. A ¶ 7. He previously had done so with other patients and none had complained of any adverse reaction. Id.

Beginning on March 21, 2013, plaintiff returned to the Petersburg medical center on several occasions, complaining of swelling and weakness in his left arm and pain in the area of the injection site. Def. Ex. A ¶ 11; id. Att. 3, at 1-9. He was prescribed a ten-day course of Cephalexin, an antibiotic used to treat bacterial infections, placed on light duty status, and instructed to follow up as needed. Def. Ex. A, Att. 3, at 1-2. An X-ray of plaintiff's left arm was ordered on April 8, 2013, and an orthopedic consultation was prepared. He also was given a seven-day prescription for Meloxicam, Which is used to relieve pain, swelling, and stiffness caused by osteoarthritis. Id. at 4-5. On April 11, 2013, plaintiff again complained of swelling in his left arm and was prescribed Prednisone for twelve days. Id. at 6-8.

On April 25, 2013, plaintiff was evaluated by Petersburg's onsite orthopedic surgeon, who "found that [plaintiff] hard] left arm weakness not related to the injection and recommended] a Ne[u]rologist evaluation." Id. at 11. A neurological consultation was prepared and approved. id. Plaintiff saw the Petersburg's Clinical Director on May 15, 2013, to discuss treatment and the referral to a neurologist, and he was prescribed Amitriptylinc for 90 days to prevent headaches. Id. at 12-13. Plaintiff's Amitriptyline prescription was increased and his light duty status was renewed on May 20, 2013. Id. at 14-15.

On June 3. 2013, plaintiff was examined by an off-site neurologist, who provisionally diagnosed him with Brachial Neuritis or Radiculitis NOS (not otherwise specified) and recommended that he undergo an electromyogram/NCS (nerve conduction study) of both his upper extremities. Id. at 18, 73-74. On June 7, 2013, plaintiff complained of continued pain in his left arm and was prescribed Gabapentin for 180 days. Id. at 16-17. Ten days later, plaintiff reported "stabbing pain" in his left shoulder and was prescribed Tylenol with codeine for seven days and Prednisone for ten days; he was also given an increased dosage of Gabapentin for 30 days.[4] Id. at 18-22. The prescription for Tylenol with codeine was renewed on June 24, July 1, and July 8 for seven days in each instance. Id. at 24, 26-27.

Plaintiff again visited the off-site neurologist on July 11, 2013, and also saw his primary care physician. At this time the neurologist provisionally diagnosed Cervical Root Lesions and recommended that plaintiff undergo an MRI of the cervical spine. Def. Ex, A, Att. 1 at p. 28. His Tylenol with codeine prescription was renewed for seven additional days each on July 16, July 23, and July 29, and his light duty status was renewed on August 5. Id. at 29-32. The MRI of plaintiff's cervical spine was conducted on August 15, 2013, and revealed "mild degenerative disc disease." Def. Ex. B at 3. After additional renewals of the Tylenol with codeine and Gabapentin on August 16 and August 29, the Clinical Director at Petersburg noted on September 13, 2013, that because neither the electromyogram "EMG" nor the MRI had demonstrated "significant findings to account for this inmate's complaints, narcotics should be stopped." Def. Ex. A, Att. 3 at 35-36, 39. Nonetheless, throughout September and October 2013, plaintiff continued to receive prescriptions for Tylenol with codeine, and he was provided with information regarding recommended exercises for his left arm and shoulder. Id. at 41-44. His light duty status continued to be extended. Id. at 37, 43.

On October 22, 2013, plaintiff had another consultation with the neurologist and was informed again that the EMG and MIDI results did not reveal any pathology to explain his symptoms. Id. at 45. His prescription for Tylenol with codeine was discontinued, and he was recommended to return to normal activities. Id . On October 24, 2014, plaintiff's primary care physician instructed him to remove his sling and to follow the recommended exercises. Id. at 46. On November 15, 2013, plaintiff received a renewed prescription for Gabapentin, and on November 22 he was informed that he would be placed in Petersburg's chronic care unit. Id. at 47-51.

Plaintiff underwent another CT scan on December 16, 2013. It revealed a "small sclerotic focus, " or mass, near his left humerus, but the scan as a whole did "not reveal any significant pathology that would lead to this inmate's symptoms." Id. at 53-55. Also in December 2013, plaintiff's light duty status and lower bunk pass were renewed, and he received prescriptions for Ibuprofen and Amitriptyline. Id. at 56-57. He was seen for a follow-up examination at which he stated that his arm was not improving, he was counseled on "the results of his ...

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