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Kendall v. Murray

United States District Court, D. Massachusetts

October 17, 2018

STEVEN N. KENDALL, Plaintiff,
v.
SCOTT MURRAY, M.D. et al., Defendants.

          MEMORANDUM AND ORDER

          PATTI B. SARIS CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff Steven Kendall, who is currently in custody at Federal Medical Center, Devens (“FMC Devens”), brings this action under 42 U.S.C. § 1983 alleging that the Federal Bureau of Prisons, Dr. Scott Murray, Dr. Berhan Yeh, and various named officers[1] (collectively “Defendants”) have been deliberately indifferent to his medical needs in violation of his Eighth and Fourteenth Amendment rights. (Docket No. 80, Count I). Plaintiff has a “Kock Pouch, ” which is a pouch made from his small intestine that sits inside his body to hold his stool. On July 20, 2018, Plaintiff moved for a preliminary injunction seeking a second opinion from a colorectal surgeon or an adult gastroenterologist to evaluate his Kock Pouch. (Docket No. 81). Plaintiff alleges that he is having trouble accessing the pouch in the proper way because of a hematoma which puts pressure on the pouch and has lasted for over a year. Plaintiff also asks the Court to order FMC Devens to provide him with a handicap accessible bathroom facility (Count IV and VI).[2]

         The Court held an evidentiary hearing on May 26, 2018 via videoconference. At the time of the hearing, Plaintiff was pro se. The Court appointed pro bono counsel in light of the alleged medical emergency. Three additional days of hearings were held ending on August 21, 2018. During the hearings, Plaintiff testified and introduced the expert testimony of Dr. Steven Freedman, a gastroenterologist at the Beth Israel Deaconess Medical Center. The government introduced the testimony of two defendants Dr. Berhan Yeh, the Clinical Director, and Dr. Scott Murray, Plaintiff's treating physician, and submitted Plaintiff's voluminous medical records. After the hearing, the motion is ALLOWED IN PART and DENIED IN PART.

         I. FINDINGS OF FACT

         Based on the evidentiary hearings, the medical records and affidavits, the Court finds the following facts are likely true.

         A. The Kock Pouch (K-Pouch)

         Plaintiff is a 63-year old man serving a 26-month term of imprisonment for Conspiracy to Commit Unlawful Distribution of Oxycodone. He arrived at FMC Devens on April 12, 2017. He is scheduled to be released in March 2019. Since the mid-1980's Plaintiff has suffered from ulcerative colitis which led to the removal of his colon.[3] Prior to incarceration, Plaintiff received a colostomy during which his doctors created a “Kock Pouch” - a form of continent ileostomy which refashioned Plaintiff's lower intestines into a reservoir that holds waste generated by his digestive system. A K-pouch system includes the pouch, located inside the body, and a one-way valve on the patient's abdomen that prevents leakage from the reservoir and allows the patient to drain the reservoir. The reservoir is emptied throughout the day by passing a special catheter through the valve, called a stoma, into the pouch. In order to drain the reservoir, a patient is advised to sit over the toilet and near a sink with running hot water to clean the drain catheter.

         Plaintiff has been managing his K-pouch by catheterizing himself. Generally, when his pouch is full, he lies down in a semi-recumbent position on a bed to use a catheter to enter the stoma to empty the pouch, which sometimes spills over. He then typically empties the stool into a bucket and then the toilet. When he is semi-reclined, he can empty his K-pouch without complications. Sometimes when the K-pouch is not full, he can empty it while sitting on a toilet.

         Before incarceration, Plaintiff had complications with his K-pouch including pouchitis, intermittent bleeding and incontinence at the valve site. Since incarceration, he has had some incontinence issues, but there is no credible evidence of significant bleeding.

         B. Medical Treatment at FMC Devens

         Plaintiff's primary care physician at FMC Devens is defendant Dr. Scott Murray, who has a specialty in emergency care medicine. He received his medical degree from the University of Connecticut and finished his emergency medicine residency at the Beth Israel Deaconess Medical Center in Boston. He is board certified in emergency medicine, but has no expertise in gastroenterology. There are no specialists in gastroenterology on site at FMC Devens. Defendant Dr. Berhan Yeh is a Lieutenant Commander in the United States Public Health Service, and is the Clinical Director of FMC Devens. He has his medical degree from Boston University and is board certified in emergency medicine and wound care. Because he did not provide treatment, his knowledge of Plaintiff's use of the K-pouch was not always accurate.

         In May 2017, shortly after the start of his incarceration, Plaintiff was sent for an evaluation with a gastroenterologist due to his pouchitis. The doctor in Nashoba Valley was not familiar with the K-pouch, although this is unsurprising given how rare the K-pouch procedure is. Plaintiff received antibiotics and an enema.

         Plaintiff, who has a myriad of other medical issues, received anti-coagulation medication by self-injection in June 2017.[4] He developed a large hematoma at the injection site in the lower right quadrant of his abdomen. The hematoma was the size of Plaintiff's head or small child's basketball, and it pressed on Plaintiff's stoma when he was in a sitting or standing position. The hematoma made it difficult for Plaintiff to access his K-pouch. In July 2017, Dr. Murray sent Plaintiff to have his hematoma evaluated by the University of Massachusetts Emergency Department. A doctor recommended conservative management because of the risk of infection if the hematoma were drained. The CT scan showed a hematoma measuring 17 x 8 x 9 cm in the abdominal wall. Plaintiff was going to be admitted for observation, but he checked himself out against medical advice because he believed (mistakenly) that the doctors wanted to perform surgery and overheard one of the surgeons express concern about nicking the K-pouch. In fact, the surgeons recommended conservative management of the hematoma, not surgery.

         In December 2017, Plaintiff was given a CAT scan to examine the mass which Dr. Murray has diagnosed as a hematoma. Since then, the mass has shrunk to about 6 cm x 6 cm in size, alleviating some of the pressure. When Plaintiff is ...


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