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Wexford Faces Liability for Indiana Prisoner’s Delayed Specialist Referral

by David M. Reutter

On March 3, 2023, the U.S. District Court for the Southern District of Indiana only partly granted a motion for summary judgment filed by prison medical profiteer Wexford Health Sources, Inc. and its employees in a state prisoner’s civil rights action over a nearly three-year delay in providing specialty care for his painful skin lesions.

Kenneth Zamarron sought redress from Wexford and its subsidiary, Wexford of Indiana, LLC, the contracted medical provider at Wabash Valley Correctional Facility (WVCF), along with Wexford employees Dr. Samuel Byrd and two nurses, Kim Hobson and Amy Wright. Proceeding under 42 U.S.C. § 1983, he alleged they were deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment guarantee of freedom from cruel and unusual punishment.

Zamarron’s pro se petition said he saw Dr. Byrd for the first time in 2016 about painful lesions on his scalp. On March 17, 2017, Dr. Byrd administered a steroid injection into four scalp cysts, noting his “hopes that this would decrease size and pain associated with lesions.” But those hopes were dashed, and two weeks later Dr. Byrd prescribed Cleocin T solution.

Because he had previously been prescribed the medication and it was not effective, Zamarron objected. But Dr. Byrd disregarded that, injecting the steroid again on June 16, 2017. Two months later, Cleocin T was prescribed again. At that time, Zamarron had also developed a pilonidal cyst near his tailbone. On December 13, 2017, Dr. Byrd prescribed Bactrim to treat the cyst, again ignoring Zamarron’s protest that it was ineffective when previously administered.

Another round of steroids was injected on February 22, 2018, but the cyst near his tailbone persisted. Zamarron agreed to a three-week trial of Cipro to treat it, as well as a biopsy of the scalp cysts.

In March 2018, Zamarron complained the cysts were draining, but a nurse found no evidence of that. The scalp biopsy showed scarring consistent with Pilar cysts and no malignancy. Dr. Byrd believed Zamarron had a genetic predisposition to Pilar cysts. Zamarron agreed with Dr. Byrd’s recommendation to use antibiotics for preventing acute infection.

But two months later, on September 14, 2018, when Zamarron insisted on a procedure to remove the lesions, Dr. Byrd stopped when he ran into scar tissue. He believed only more scar tissue would develop, worsening the condition. Thus, more radical treatment beyond his training was needed, Dr. Byrd said. He also said it was beyond his training to remove the tailbone cyst.

Wellpath denied Dr. Byrd’s request to have Zamarron evaluated by a specialist. Instead, it opted for an Alternative Treatment Plan. On October 8, 2018, Dr. Byrd gave that plan to Zamarron: Use antibacterial soup twice a day and lose weight.

Drainage of the tailbone cyst occurred on December 14, 2018. Zamarron’s condition continued to worsen to include not only pilonidal cysts, but Pilar cysts and pseudo folliculitis. Cleocin T was re-prescribed on February 21, 2019.

Dr. Byrd and Zamarron did some research together but were unable to find another treatment. A wound culture was taken. The pilonidal cyst was removed on May 21, 2019, by Dr. Talia. More drainage of cysts occurred on September 28 and October 9, 2019.

Finally, on November 20, 2019, Zamarron was seen by a dermatologist, Dr. Wolverton. He diagnosed Zamarron with dissecting cellulitis of the scalp and prescribed Accutane. Dr. Byrd completed training to administer the treatments on October 8, 2020. Zamarron’s condition was improving at the time of the Court’s order.

In denying summary judgment to Dr. Byrd, the Court found no evidence that he “could send Zamarron to an outside specialist without authorization, [but] a reasonable jury might conclude he delayed in requesting outside treatment and that this delay exacerbated Mr. Zamarron’s conditions.”

Hobson and Wright were granted summary judgment, though, since there was no evidence from which a jury could conclude they were aware that Dr. Byrd was not providing sufficient treatment. Wexford Health Sources was also granted summary judgment because it provides only administrative functions and specific personnel to oversee Wexford of Indiana, the Court said. WVCF Warden Brown, who was also a named defendant, was granted summary judgment because he was not aware of nor involved in the treatment.

But Wexford of Indiana was denied summary judgement. A jury could conclude it “maintains a policy – formal or informal – of prioritizing cost savings over adequate patient care,” the Court wrote. A “jury could also conclude that this policy creates an obvious risk that, like in this case, medical staff would persist in providing inadequate care rather than seeking a consultation.” Thus, it could be concluded that “Wexford was aware of this risk and consciously disregarded it.” Therefore, the Court ordered claims against Dr. Byrd and Wexford of Indiana to “proceed to settlement or trial if one is necessary.” See: Zamarron v. Wexford Health Sources, Inc., 2023 U.S. Dist. LEXIS 35583 (S.D. Ind.).

On April 6, 2023, the Court agreed to appoint counsel for Zamarron. On July 27, 2023, attorney Janet L. Thompson was recruited from Hoover Hull Turner in Indianapolis. The case is set for trial in January 2024, and PLN will update developments as they are available. See: Zamarron v. Wexford Health Sources, Inc., USDC (S.D. Ind.), Case No. 2:21-cv-00098.