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Stewart v. Wang

United States District Court, W.D. Virginia, Roanoke Division

August 14, 2019

LORENZO STEWART, Plaintiff,
v.
LAURENCE WANG, et al., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE.

         Lorenzo Stewart, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, [1] alleging that he was denied adequate medical treatment for his Hepatitis C (“Hep C”) infection. He also was allowed to amend to add a claim regarding a failure by Dr. Wang to timely treat an injury to his middle finger. (Dkt. No. 33 (setting forth claim); Dkt. No. 36 at 1 n.1 (allowing amendment); Dkt. No. 37 (Order).) I previously granted portions of defendants' motion to dismiss, leaving only Dr. Wang and Warden Davis as defendants.[2]

         Pending before me is a motion for summary judgment filed on behalf of Dr. Wang.[3](Dkt. No. 42.) Upon review of the record, I conclude that Dr. Wang's motion for summary judgment should be granted. Because the motion only seeks relief as to the Hep C claim and fails to address the claim based on Stewart's finger injury, Dr. Wang remains a defendant as to the latter claim. If Dr. Wang wants to file a separate motion for summary judgment addressing that claim, he should do so not later than 30 days after entry of the accompanying order.

         I.

         The evidence before me includes a declaration from Dr. Wang, Stewart's verified complaint, and Stewart's medical records from the relevant time period.

         According to his affidavit, Dr. Wang is a medical doctor licensed in Virginia. Since 2007, he has been a contract physician of the Virginia Department of Corrections (“VDOC”) at Green Rock Correctional Center. (Wang Decl. ¶¶ 1-2, Ex. A to Mem. Supp. Mot. Summ. J., Dkt. No. 43-1.) Stewart's records reflect that he was noted to have Hep C when he entered Green Rock. (Id. ¶ 6; see also Stewart Med. Records, Ex. B to Mem. Supp. Mot. Dismiss, Dkt. No. 26-2.)

         Dr. Wang's treatment of Stewart began on May 6, 2014, when he reviewed and approved the history and physical taken by the nurse and requested that Stewart be continued on his admission medications. According to Dr. Wang, less than two months before, Stewart underwent two tests, and the results on both were consistent with “only trace activity” related to Hep C. (Wang Decl. ¶ 7.)

         Dr. Wang further avers that in May 2014, physicians treating inmates in jails did not have medications that they could prescribe to inmates in Stewart's condition and with test results like his. According to Dr. Wang, although VDOC had previously prescribed ribavirin and interferon for Hep C patients, those medicines had been discontinued for use in VDOC prisons in February 2014. Even if they had been available, moreover, Dr. Wang notes their shortcomings, especially for Stewart. Specifically, those medicines had a response rate of less than 50% for patients with Stewart's type of Hep C and they had significant side effects, including flu-like symptoms, neuropsychiatric disorders, and autoimmune syndromes. Dr. Wang suggests that the low success rate and the significant side effects, as well as the fact that Stewart's Hep C was asymptomatic, would not have made them a good choice for Stewart at that time, even if they had been available within VDOC. (Id. ¶¶ 7-8.)

         During a visit in May 2014, Dr. Wang informed Stewart that a new Hep C treatment was in development and that VDOC was developing a new treatment protocol. He told Stewart that he would be evaluated under that protocol. (Id. at ¶ 9.) Dr. Wang states that he followed VDOC guidance and the standard of care in monitoring Stewart's condition and waiting for the development of the new treatment. (Id.)

         According to Dr. Wang, “Stewart never exhibited any material symptoms related to Hepatitis C” “while waiting for the new treatment.” (Id. ¶ 8; see also Id. ¶¶ 22-23.) This fact, however, is disputed to some degree. As discussed in more detail below, Stewart alleges that he experienced some medical issues while waiting for the treatment, in roughly the period of May 2014 until September 2017, although he does not allege nor have any evidence to show that those symptoms were the result of his Hep C.

         The updated guidelines and treatment were released in June 2016, and presented a new screening protocol. Those prisoners eligible for treatment under the new guidelines would receive treatment from the VCU Medical Center Hepatology group, part of the Medical College of Virginia (“MCV”); all others would be monitored on a certain schedule. (June 2016 Guideline at 1, 12-13, Dkt. No. 26-17.)

         Dr. Wang ordered blood work on Stewart to evaluate him under the new guidelines. The results were “equivocal, ” but because one of the test results warranted referral for treatment, Dr. Wang ordered a fibroscan, a special ultrasound of the liver. (Wang Decl., ¶¶ 10-12.) Because of a state-wide lack of machines and skilled staff necessary to perform the test, the test could not be done until August 31, 2016. In response to the test, which showed mild to moderate liver fibrosis, Dr. Wang ordered additional testing “relevant to the choice of treatment.” (Id. ¶ 14.) In September 2016, he submitted all of the test results to Dr. Ammonette, per VDOC's policy, for his evaluation. Dr. Ammonette approved treatment and, by October 4, VDOC had submitted all of the records to MCV for its review. (Id. ¶¶ 14-16.)

         Stewart did not have his first specialty telemedicine review until May 24, 2017, but the delay from October 4, 2016 until May 24, 2017 was “due to lack of availability by the MCV providers.” (Id. ¶ 17.) Treatment was initiated on June 20, 2017, and the treatment has been successful-as of September 2017, the Hep C virus was undetectable in Stewart. (Id. ¶ 19.) As noted, Dr. Wang emphasizes that Stewart did not have any symptoms related to his Hep C diagnosis at any time. (Id. ¶ 22.)

         Stewart filed a response and a supplemental response to the motion in which he again takes issue with the delay in treatment. (Dkt. Nos. 46, 49.) He alleges that Dr. Wang waited to treat him until other problems arose, like blood in his bowels “or when I crouch up to sip.” (Pl's Opp'n 3, Dkt. No. 46.)[4] In his verified complaint, he notes different or more vague symptoms he experienced while waiting for treatment. (Compl. at 5 (referencing “unnecessary suffering” due to the delay); id. at 3 (stating that due to the waiting he now has “other problems such as bladder problems” and an “ammonia build up in [his] urine.”).) He offers nothing to connect those symptoms, however, to the delay in ...


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