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Fortunato v. Bhopale

United States District Court, S.D. New York

July 24, 2017

LOUIS FORTUNATO, Plaintiff,
v.
DR. BHOPALE, Defendant.

          OPINION AND ORDER

          KATHERINE POLK FAILLA, District Judge

         Plaintiff Louis Fortunato[1] brought this action pursuant to 42 U.S.C. § 1983, alleging that Defendant Dr. Vishwas Bhopale[2] was deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment. In particular, Plaintiff alleges that but for Defendant's substandard medical treatment, Plaintiff's glaucoma would not have progressed as it did, to the point where Plaintiff's vision is now compromised. Defendant has moved for summary judgment, contending alternatively that (i) there is no genuine dispute of material fact and he is entitled to judgment as a matter of law, and (ii) he is entitled to qualified immunity. For the reasons that follow, Defendant's motion is granted.

         BACKGROUND[3]

          A. Factual Background

          1. The Parties

         At all times relevant to this case, Plaintiff was an inmate incarcerated in the DOCCS system. (Def. 56.1 ¶ 1). Plaintiff was housed at Green Haven Correctional Facility (“Green Haven”) from approximately January 2007 through May 2011, at which time he was transferred to Southport Correctional Facility (“Southport”). (Id. at ¶ 2).

         Defendant was employed by DOCCS as a physician at Green Haven from April 2005 through his retirement in February 2016. (Def. 56.1 ¶ 3). Defendant “did not have specialized training in ophthalmology or optometry.” (Id. at ¶ 4 (citing Bhopale Decl. ¶¶ 16-17)).

         2. Plaintiff's Medical History at Green Haven

         Plaintiff first complained of vision problems to Green Haven's medical staff on or around December 6, 2007. (Def. 56.1 ¶ 5). He was evaluated in the Putnam Hospital Center Emergency Room on December 10, 2007, and found to have an elevated intraocular pressure (“IOP”) of 23 in his right eye. (Id. at ¶¶ 5-6).[4] It was recommended that Plaintiff follow up with an ophthalmologist, and an ophthalmological consultation was requested by Plaintiff's primary medical care provider at the time, Green Haven Physician Assistant Novoa (“PA Novoa”). (Id. at ¶ 9). On December 19, 2007, Plaintiff was examined by an ophthalmological specialist and found to have a normal IOP of 19 in both eyes and normal visual acuity. (Id. at ¶¶ 9-10).

         Two months later, on February 25, 2008, Plaintiff was again seen by a specialist upon the referral of PA Novoa. (Def. 56.1 ¶ 13). Plaintiff had been evaluated at Green Haven after complaining of blurry vision, and was found to have 20/70 vision in his right eye and 20/40 in his left eye. (Id.). However, the specialist found that Plaintiff had normal visual acuity in both eyes. (Id. at ¶ 14). Plaintiff's IOP was 21 in his right eye and 22 in his left. (Id. at ¶ 15). Accordingly, the specialist recommended a visual field test. (Id. at ¶ 16). “Following a referral by Green Haven Physician Assistant Rodas, an Octopus Visual Field Test was performed on March 19, 2008, which showed normal results in both eyes.” (Id. at ¶ 18).

         Sometime within the subsequent year, Defendant was assigned to serve as Plaintiff's primary medical care provider. (Def. 56.1 ¶ 19). When Plaintiff complained of blurry vision, Defendant referred Plaintiff to a specialist on April 9, 2009. (Def. 56.1 ¶ 19 (citing Rheeman Decl. ¶ 14, Ex. F); Bhopale Decl. ¶ 14). “Plaintiff was seen by the specialist on May 11, 2009, and his IOP was found to be slightly elevated at 22 in the right eye and 24 in the left eye, and his vision was measured as normal, 20/25, in both eyes.” (Id. at ¶ 20). “[T]he specialist recommended another visual field test.” (Id. at ¶ 21). Defendant issued an additional referral, and an additional Octopus Visual Field Test was performed on June 4, 2009[.]” (Id. at ¶ 23). The test results were normal as to both of Plaintiff's eyes. (Id.). Accordingly, “[n]o course of treatment or follow-up testing was recommended by the specialist who conducted the June 4, 2009 visual field test.” (Id. at ¶ 24).[5]

         Plaintiff's next consultation with a specialist took place on January 19, 2010, upon an additional referral from Defendant. (Def. 56.1 ¶ 26). The specialist found that Plaintiff's IOP was 25 in his right eye and 24 in his left. (Id.). Plaintiff's visual acuity was normal, measuring at 20/25 in both eyes. (Id. at ¶ 28). “The specialist recommended another visual field test, which, after a referral by [Defendant], was performed on February 12, 2010.” (Id. at ¶ 29). “The Octopus Visual Field Test showed claimed nonspecific scattered scotoma (small isolated areas of claimed vision loss) in [the] superior visual field in the right eye and a claimed superior arcuate (top of the eye) visual field defect in the left eye.” (Rheeman Decl. ¶ 20 (citing id. at Ex. I)).[6]

         Therefore, Defendant referred Plaintiff for a follow-up appointment with a specialist, which appointment occurred on February 22, 2010. (Def. 56.1 ¶ 30). Plaintiff's IOP was measured to be 23 in his right eye and 22 in his left. (Id. at ¶ 31). Plaintiff had normal visual acuity of 20/25 in both eyes. (Id. at ¶ 32). Following this appointment, Plaintiff was prescribed Lumigan eye drops[7]to treat his elevated IOP and referred to a glaucoma specialist.[8] (Id. at ¶ 33). Additionally, upon Defendant's referral, “an MRI of Plaintiff's brain was taken” on February 23, 2010, “which showed normal results.” (Id. at ¶ 36).

         On March 19, 2010, Plaintiff was examined by glaucoma specialist Dr. Wandel, again upon a referral from Defendant. (Def. 56.1 ¶ 37). Plaintiff's IOP was 15 in his right eye and 20 in his left. (Id. at ¶ 38). His vision was normal, 20/20 and 20/30 in each of Plaintiff's eyes. (Id. at ¶ 39).

         “Following a referral by [Defendant], Dr. Wandel ordered a Humphrey Visual Field Test and a Heidelberg Retina Tomograph (‘HRT'), which was conducted on May 4, 2010, and was normal except [for] a subtle superior eyelid defect in both eyes, a condition that is not a symptom of glaucoma.” (Def. 56.1 ¶ 40). A “superior visual field defect in both eyes” detected on February 22, 2010, “appeared to have resolved.” (Id. at ¶ 41). “Plaintiff also had OCT (Optical Coherence Tomography) of NFL (Nerve Fiber Layer) ..., which showed normal results.” (Id. at ¶ 42 (citing Rheeman Decl. ¶ 27, Ex. M; Wandel Decl. ¶ 7)).[9]

         “Following referrals by [Defendant], Plaintiff was seen again by Dr. Wandel on November 12, 2010, and February 25, 2011.” (Def. 56.1 ¶ 45). “Plaintiff was found to have normal IOP on November 12, 2010, and February 25, 2011, while being treated with Lumigan.” (Id. at ¶ 46). “Plaintiff's vision was normal, measur[ing] at 20/25 in both eyes on November 12, 2010, and February 25, 2011.” (Def. 56.1 ¶ 47). Moreover, “Plaintiff's optic nerves continued to be normal in appearance without cupping, which indicated that Plaintiff was not suffering from glaucoma.” (Id. at ¶ 48 (citing Rheeman Decl. ¶ 28, Ex. N; Wandel Decl. ¶¶ 6-7)).

         3. Plaintiff's Medical History After His Transfer from Green Haven

         In May 2011, Plaintiff was transferred from Green Haven to Southport, and Defendant's responsibilities for Plaintiff's medical care ceased. (Def. 56.1 ¶¶ 49-50). However, Plaintiff continued to receive care from DOCCS.

         On June 7, 2011, pursuant to a referral from Plaintiff's “medical providers at Southport, Plaintiff was seen by a new ophthalmological specialist.” (Def. 56.1 ¶ 49). Plaintiff's IOP was 17 in his right eye and 21 in the left. (Id. at ¶ 51). On July 6, 2011, pursuant to an additional referral, “Plaintiff was seen by an optometrist ... and Plaintiff's vision was corrected, by glasses, to 20/20 in both eyes, with mild correction for myopia/near sightedness.” (Id. at ¶ 52).

         Plaintiff was next seen by a specialist on June 25, 2012, at which time his IOP was normal, measuring at 12 in his right eye and 14 in his left. (Def. 56.1 ¶¶ 53-54). Plaintiff was seen by a specialist again on September 25, 2012, and his IOP was still normal, measuring at 18 in his right eye and 14 in his left. (Id. at ¶ 55).

         On July 3, 2013, an optometrist found that Plaintiff's visual acuity was 20/50 in both eyes. (Def. 56.1 ¶ 57). Plaintiff was given glasses, which improved his vision to 20/30. (Id.).

         Plaintiff was next seen by a specialist on May 8, 2015. (Def. 56.1 ¶ 59). At that time, Plaintiff's optic nerves were examined and found to still be “normal in appearance with an estimated cup of 0.2 in both eyes.” (Id.).

         Plaintiff was seen by a glaucoma specialist on January 27, 2016, and his IOP was normal, measuring 17 in both eyes. (Def. 56.1 ¶¶ 60-61). An additional Humphrey Visual Field Test was conducted, which test “showed high false negatives (35% in the right and 21% in the left eye) and showed dense superior and temporal visual field defect in both eyes. An OCT of NFL came back normal in the right eye and significant nerve fiber layer thinning in the left eye.” (Id. at ¶ 62). This abnormality was the result of “the scan being off centered and was thus not accurate.” (Id. at ¶ 63). However, in light of the “dense superior and bitemporal visual field defect seen, which is very atypical of glaucoma, the glaucoma specialist recommended referring Plaintiff to a neuroophthalmologist.” (Id. at ¶ 63).

         Accordingly, Plaintiff was referred to and seen by Dr. Charles Rheeman on February 24, 2016. (Def. 56.1 ¶ 64; see also Rheeman Decl. ¶ 42, Ex. BB). Without his glasses, Plaintiff's visual acuity was 20/50 in his right eye and 20/80 in his left. (Id. at ¶ 65). “Plaintiff's pupillary exam was normal without afferent pupillary defect[, ] and ... Plaintiff's IOP was normal at 19 in the right and 18 in the left eye.” (Id. at ¶¶ 66-67). “An OCT of NFL came back normal in both eyes.” (Id. at ¶ 70). “[An] HVF test showed moderate to severely constricted visual field defect in both eyes, which was different than [the] complete superior and temporal visual field defect in both eyes seen on January 27, 2016.” (Id. at ¶ 69). But overall, “Plaintiff's entire eye exam was normal, including normal appearing optic nerves with normal cup of 0.2 in both eyes.” (Id. at ¶ 68 (citing Rheeman Decl. ¶ 42, Ex. BB)). Indeed, “Plaintiff's cup/disc ratio of his optic nerve was 0.2 on February 24, 2016, which was the same as it was when measured in 2008.” (Id. at ¶ 74 (citing Rheeman Decl. ¶ 45)).

          B. Procedural Background [10]

         The operative pleading in this action, Plaintiff's Amended Complaint, was filed on May 17, 2012. (Dkt. #12). The then-Defendants moved to dismiss the Amended Complaint on May 20, 2015. (Dkt. #44-46).

         On September 1, 2015, Judge Analisa Torres issued the September 1 Memorandum and Order (the “September 1 Memorandum”) dismissing Plaintiff's claims against all Defendants but for Defendant Bhopale. Fortunato v. Bernstein, No. 12 Civ. 1630 (AT), 2015 WL 5813376 (S.D.N.Y. Sept. 1, 2015). (Dkt. #50). On September 10, 2015, Defendant Bhopale and former-Defendant Bernstein filed a motion for reconsideration of certain arguments they had made under Federal Rule of Civil Procedure 12(b)(2). (Dkt. #51-52). After resolving various service-related issues (Dkt. #55-62), the Court granted the reconsideration motion on February 22, 2016. (Dkt. #63). “However, upon reconsideration, the Court adhere[d] to its prior decision, ” pursuant to its discretion under Federal Rule of Civil Procedure 4(m). (Id.). Defendant Bhopale, the only remaining Defendant, filed his Answer to the Amended Complaint on April 14, 2016, in which he raised several affirmative defenses, including the defense of qualified immunity. (Dkt. #68).

         On October 6, 2016, at Defendant's request (Dkt. #76), Judge Torres set a schedule for the briefing of Defendant's contemplated motion for summary judgment. (Dkt. #77). After the schedule was extended on November 9, 2016 (Dkt. #79), Defendant filed his motion on November 22, 2016 (Dkt. #80-88). Plaintiff filed a letter in opposition to Defendant's motion dated November 27, 2016 (Dkt. #89), and Defendant filed his reply in further support of his motion on January 11, 2017 (Dkt. #90). Plaintiff filed a second letter ...


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