United States District Court, W.D. New York
Brian Laudadio, Esq., Joseph S. Nacca, Esq., Bond Schoeneck & King PLLC, Rochester, NY, for Plaintiff.
Gary M. Levine, A.A.G., New York State Office of the Attorney General, Rochester, NY, for Defendant.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
Siragusa, J. This prisoner civil rights case is before the Court on Defendant's application for summary judgment, filed April 8, 2014, ECF No. 60. The Court heard oral argument on June 19, 2014, and reopened discovery for the limited purpose of determining the identity of the individual who allegedly administered a double dose of Kayexalate to Plaintiff. Despite the commendable assistance provided to Plaintiff by pro bono counsel, the Court determines that Defendant's motion should be granted.
Both parties complied with L.R. Civ. P. 56, filing a statement of undisputed facts, and an opposing statement. The following facts are taken from the unopposed portions of Defendant's statement.
In her statement of facts, defendant Virginia Bluff ("Bluff"), a Caucasian female, maintains that she was a Physician's Assistant licensed to practice in the State of New York since March 5, 1982 and employed by the New York State Department of Correctional and Community Services ("DOCCS"). In 2003, Bluff worked as a Physician's Assistant at the Regional Medical Unit at Wende Correctional Facility where Peralta Francisco Peralta ("Peralta") was an inmate. Peralta had been incarcerated in DOCCS since 1996. Peralta was a forty-three year old man with diabetes, hypertension and end stage renal disease. He was receiving hemodialysis three times a week.
In March 2003, Peralta received dialysis at Wende Correctional Facility. Peralta knew Bluff and had no problems with her. On March 5, 2003, Peralta complained to a nurse that he was not feeling well. Peralta's blood was taken and it was reported to Bluff that Peralta had an elevated potassium level of 6.4, instead of the normal level between 3.3 and 5.3. The following day, March 6, 2003, Bluff repeated the laboratory study to confirm the high potassium level. Also on March 6, 2003, while she was on sick call rounds, Bluff was advised over the telephone that Peralta still had a high potassium level of 6.2. High potassium levels may cause heart problems which may be fatal. As a result of the high potassium levels, Bluff prescribed Kayexalate, 30 gm po bid to address Peralta's high potassium level.
Kayexalate is a medicine commonly prescribed to patients that show elevated potassium levels. Prior to March 2003, Peralta had used Kayexalate without any complications. Kayexalate is given in liquid form from bottles-normally one bottle at a time. Peralta did not have any further problems until the end of March, 2003. Peralta states that on March 29, 2003, at around 8:00 a.m., he was given a double dose (two bottles) of Kayexalate before his dialysis treatment by a "small frame African American Nurse" Second Amended Compl. ¶ 13, Sept. 10, 2007, ECF No. 22; Peralta Dep. at 16, 24, & 27, Dec. 13, 2013, ECF No. 60-2 (attached as Ex. A to Levine Decl., Apr. 8, 2014, ECF No. 60-2). Bluff did not administer medicine to patients. Peralta's medical record had no indication that the Kayexalate dosage was changed. His complaint alleged that the order for the double dose of Kayexalate camefrom Bluff by telephone. Compl. ¶ 13; Peralta Dep. at 27. Peralta did not hear the alleged phone call and has no personal knowledge of the contents of the alleged telephone call. Peralta Dep. at 28. Bluff had no contact with Peralta during the time he received the double dose of Kayexalate. Bluff maintains that she did not order a double dose of Kayexalate on March 29, 2003.
Peralta became sick after taking the extra dose of Kayexalate. The medical records indicate that on March 31, 2003, he was seen by Dr. Miller for complaints of muscle weakness. The records also show that on April 1, 2003, Peralta was seen by Dr. Clemens with increased complaints, and was admitted to Erie County Medical Center ("ECMC") for evaluation. At ECMC, Peralta was treated for hypokalemia (lower-thannormal amount of potassium in the blood) and returned to the facility on April 3, 2003. The hospital discharge memorandum stated: "Muscle weak and myalgias secondary to hypokalemia most likely from the aggressive treatment with Kayexalate." On April 16, 2003, after Peralta returned to the facility, he filed a grievance about Kayexalate. On April 29, 2003, Bluff submitted a memorandum to the grievance department advising them of her role in Peralta's treatment.
Peralta's statement adds the following facts. Peralta is a native of the Dominican Republic who attained an eighth grade education. He is a former inmate of the Wende Correctional Facility in the Town of Alden in Erie County, New York ("Wende"). During the course of his confinement at Wende and earlier, Peralta suffered from kidney failure and had to undergo dialysis treatment. This treatment consisted of the cleaning of his blood three times a week. During the course of this treatment, he was confined at the Wende infirmary and not housed in the general population. He was simultaneously receiving medication for diabetes and high blood pressure. He was not aware of any other medical conditions for which he might have been receiving treatment.
Regarding the events of March 29, 2003, at around 8:00 a.m., Peralta was administered Kayexalate medication prior to his dialysis treatment. On March 29th, he was given a double dose of Kayexalate, rather than the single dose usually administered to him. Peralta contends that Bluff gave the order to administer the double dose of Kayexalate via telephone. At this time, he was confined in the infirmary. Approximately three hours later, he was taken to dialysis treatment. About an hour and a half after starting dialysis, he requested some water. A white male nurse, about 30 years old, who had a large build and stood approximately six feet tall, brought him a large cup of ice water. He handed Peralta the cup, at which time Peralta realized that he had no strength in his right hand to hold the cup. As a result, the cup fell and the water spilled all over him. At this point the nurse asked what happened. Peralta explained that he had no strength in his hand. Within minutes the situation worsened, as he began losing all of the strength throughout his body. A supervisor was called, and Peralta told him that he believed he was reacting poorly to the medication. At this point, he could not stand up and had no strength in his arms, legs or hands. He finished his dialysis and was taken to his room in a wheelchair. During the course of that evening and throughout the night, he repeatedly complained of muscular weakness and breathing difficulties. In spite of his complaints, nothing was done. He continued complaining of muscular weakness and difficulty breathing through the following morning of March 30, 2003, and thereafter, until, eventually, he was seen by a short, heavy set, African American doctor who wore glasses. This doctor immediately sent him to ECMC. Despite Peralta's repeated complaints, he was not admitted to ECMC until April 1, 2003. Once admitted, he spent the night of April 1 and the following two to three days at ECMC. Upon being returned to the Wende facility, he was informed by the dialysis supervisor at Wende that the double dose of Kayexalate was the cause of his severe medical problems.
Peralta contends that despite being the medical professional who prescribed Kayaxelate to Peralta, and despite knowing that Kayexalate is known to weaken muscles, Bluff failed to follow up with Plaintiff or take any affirmative action to assess whether Peralta was tolerating the Kayexalate without harm. Peralta further contends that this failure led to permanent damage, which could have been avoided had he been monitored.
At ECMC, Peralta was diagnosed with Myalgia and muscle weakness. Upon information and belief, Peralta asserts that he has suffered the following permanent physical damage as a result of Bluff's alleged deliberate indifference in allegedly ordering a double dose of Kayexalate and by allegedly failing to properly monitor his reaction and/or failing to immediately send him to the hospital despite his repeated complaints about his reaction to the medication: 1) wasting of the muscles in the arches of both feet; 2) wasting of the muscles in the upper leg of both legs; 3) weakening of both knee joints; 4) wasting of the muscles in his right hand, lower and upper right arms;
5) damage to the heart, which has required him to take four different heart medications ever since; 6) systemic "pins and needles"; and 7) random nervous jerks of the body. Peralta made diligent efforts to learn the identities of Bluff and additional caregivers throughout this litigation, and ...