Dixon v. Wexford Health Sources, Inc. et al

Filing 48

ORDER AND OPINION entered by Magistrate Judge Jonathan E. Hawley on 1/17/2019. For the reasons stated, supra, the Defendant's motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of the Defendants. This case is terminated. See full written Order.(VH, ilcd)

E-FILED

Thursday, 17 January, 2019 02:51:11 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
LAMONTE DIXON, JR.,
Plaintiff,
v.

Case No. 1:16-cv-01458-JEH

WEXFORD HEALTH SOURCES,
INC. and DR. SCOTT McCORMICK,
Defendants.
Order and Opinion
I
A
The Plaintiff, Lamonte Dixon, Jr. (“Dixon”) filed a pro se Complaint against
the Defendants, Wexford Health Sources, Inc. (“Wexford”) and Dr. Scott
McCormick (“Dr. McCormick”), making claims against them related to medical
care he received while an inmate in the Illinois Department of Corrections. (D. 1)1.
Pursuant to the Court’s Merit Review Opinion, 28 U.S.C. § 1915A, the Court
allowed Dixon to proceed on his Eighth Amendment claims against defendant Dr.
McCormick and Wexford for deliberate indifference to a serious medical need, and
a Fourteenth Amendment Due Process Claim against defendant Dr. McCormick.
(D. 8 at ECF p. 2). Specifically, Dixon claims that: (1) Wexford was deliberately
indifferent to a serious medical need by failing to have a policy which requires its
employees to inform patients of the side-effects of prescribed medications; (2) Dr.
McCormick was deliberately indifferent to a serious medical need by failing to
inform Dixon of Risperdal’s potential side-effect of gynecomastia; and (3) Dr.
McCormick violated Dixon’s Fourteenth Amendment substantive due process
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Citations to items on the docket in this case are abbreviated as “D. __ at ECF p. __.”

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right to informed consent and to refuse treatment due to Dr. McCormick’s failure
to warn of Risperdal’s side effects.
The Court granted Dixon’s request for recruited counsel. (Minute entry,
6/23/2017). After the conclusion of discovery, the Defendants filed a motion for
summary judgment, seeking judgment in their favor on all claims. Pending is the
Defendants’ motion for summary judgment (D. 44). For the reasons stated, infra,
the motion is granted.2
B
The parties do no dispute the following facts. Dixon began taking Risperdal,
an antipsychotic medication, when he was very young. In April 2004, when Dixon
was twenty years old, he entered the Illinois Department of Corrections. He
continued to take Risperdal in prison from at least 2004 until 2011, which had been
prescribed to him by various prison doctors.
Dr. McCormick, a Board Certified Psychiatrist employed by Wexford, had
professional contact with Dixon from November 14, 2012 to June 1, 2016. When
Dr. McCormick first saw Dixon in November of 2012, he reported that he had not
taken Risperdal or any other antipsychotic medications in a couple of years,
although he was taking Prozac. At Dixon’s next visit with Dr. McCormick on
February 13, 2013, Dixon reported he was doing well and expressed a preference
to take no prescribed medication. However, on September 16, 2013, Dixon
reported to Dr. McCormick that he was experiencing psychotic symptoms, and he
asked to be placed back on Risperdal. Because Dr. McCormick did not believe
Dixon was suffering from a psychotic disorder at that time, Dr. McCormick
declined to prescribe Risperdal, but discontinued the Prozac prescription because
Dr. McCormick believed Dixon’s reported symptoms could be a negative reaction

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The parties consented to a magistrate judge presiding over all matters. (D. 18 & 23).

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to that medication. At subsequent visits on October 21 and November 19, 2013, Dr.
McCormick continued to prescribe no medication for Dixon.
In January of 2015, Dr. McCormick, accepted a position as Regional
Psychiatrist and no longer regularly saw patients. Thus, on October 28, 2015, a
different doctor, Dr. Gvozdjan, prescribed Dixon Prozac and Haldol—an
antipsychotic medication, which he thereafter substituted with Risperdal on
December 7, 2015.
Then, on March 9, 2016, Dr. McCormick, while filling in for another
psychiatrist, saw Dixon again. Dr. McCormick did not diagnose Dixon as suffering
from a psychotic disorder on March 9, 2016. On that date and with Dixon’s
consent, Dr. McCormick reduced Dixon’s dose of Risperdal from 2mg to 1mg per
day. Dr. McCormick saw Dixon again on June 1, 2016, at which time he continued
the Risperdal prescription at 1 mg per day.
A potential side effect of Risperdal is gynecomastia, which causes increased
breast tissue. Dixon experienced enlargement of his breasts, there being a rumor
among inmates as early as 2007 that Dixon was taking hormones to enlarge his
breasts. Dixon experienced this enlargement prior to ever seeing Dr. McCormick.
The parties dispute whether Dr. McCormick ever informed Dixon of the risk
of developing gynecomastia as a side-effect of Risperdal and whether Wexford
failed to have a policy of requiring employees to inform patients of the side effects
of prescribed medications.
II
A
“Rule 56(c) of the Federal Rules of Civil Procedure provides that summary
judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
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entitled to a judgment as a matter of law.’” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “[A]t the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Id. at 249. “Summary
judgment is appropriate only in circumstances where ‘the evidence is such that a
reasonable jury could [not] return a verdict for the nonmoving party.’” Harriston
v. Chi. Tribune Co., 992 F.2d 697, 704 (7th Cir. 1993). The Court should “construe all
facts and reasonable inferences from the record in a light most favorable to the
nonmoving party.” Magin v. Monsanto Co., 420 F.3d 679, 686 (7th Cir. 2005).
B
Wexford, a private corporation, argues that it can be held liable for an Eighth
Amendment violation claim made pursuant to 42 U.S.C. § 1983 only if the
constitutional violation was caused by an unconstitutional policy or custom of the
corporation itself; there is no respondeat superior liability for employers in § 1983
actions. Wexford also argues that Dixon has no evidence to demonstrate a
deliberate decision by Wexford policymakers to promulgate no policy or to show
an awareness of harm by those policymakers that the failure to promulgate such a
policy created a substantial risk of serious harm. Dixon acknowledges that no
respondeat superior liability exists for a private corporation in a § 1983 action but
argues that Wexford’s failure to establish a policy regarding informing inmates of
medication side-effects is established by the fact that for Dixon’s years in custody,
“not one mental health provider informed him of the side effects of Risperdal.” (D.
46 at ECF p. 23). He also notes an inmate in another case made a similar claim
regarding this lack of a policy. Williams v. Kelly, 2018 WL 1911820 (N.D. Ill., Apr.
23, 2018), appeal dismissed, 2018 WL 6879709 (7th Cir. Sept. 28, 2018).
Wexford is correct that a private corporation “cannot be held liable under
§1983 unless the constitutional violation was caused by an unconstitutional policy
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or custom of the corporation itself.” Shields v. Ill. Dep’t. of Corr., 744 F.3d 782, 746
(7th Cir. 2014). “Respondeat superior liability does not apply to private corporations
under §1983.” Id. The Court is bound to follow this precedent.
On the policy question, the only evidence to which Dixon points in support
of his claim is the fact that none of his health care providers ever informed him of
Risperdal’s side-effects while he was in the custody of the Illinois Department of
Corrections. However, as Wexford notes, with the exception of Dr. McCormick,
there is no evidence in the record to establish which, if any, of Dixon’s other health
care providers worked for Wexford. Thus, the Court cannot infer anything related
to Wexford from their actions, much less the existence or lack of any policy on
Wexford’s part. Second, as Wexford also points out, Dixon failed to identify any
witnesses who could testify to the alleged deliberate indifference of Wexford
policymakers. He identified only himself and Dr. McCormick as witnesses. The
only documents Dixon identified in support of his claims against Wexford are his
medical and grievance records. He never deposed Dr. McCormick or posed
interrogatories to him. Although Dixon asked Wexford to produce policies
relating to the treatment of gynecomastia, he never sought information about any
policies relating to the treatment of psychosis, the use of Risperdal, or warning of
the side effects of medication.
Finally, Williams serves only to demonstrate why summary judgment in
Wexford’s favor is appropriate. Like Dixon, the plaintiff in Williams alleged that
several of his health care providers failed to advise him of the risk of developing
gynecomastia when taking Risperdal. He cited this fact in support of his Monell
claim “based on Wexford’s lack of policy warning inmates about the potential side
effects of medications.” Williams, at *6. Faced with the identical argument Dixon
makes here, the court stated:
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The duty to warn a patient of a prescription drug’s side effects—
standing alone—is a physician’s professional duty under Illinois law.
See Xeniotis v. Cynthia Satko, D.D.S., 14 N.E.3d 1207, 1213 (1st Dist.
2014) (“In a malpractice action based on the doctrine of informed
consent, the plaintiff must” show that “the physician had a duty to
disclose material risks.”); McDonald v. Lipov, 13 N.E.3d 179, 187 (2d
Dist. 2014) (“It is well established that a claim that a health
professional acted without the informed consent of the patient is a
type of medical malpractice claim.”). Thus, under the
circumstances—and construing the evidence in Williams' favor—that
Wexford has gaps in its policies regarding warning inmates about
medications' potential side effects does not implicate any
constitutional deprivation.
Williams, at *6. The court granted summary judgment in favor of Wexford.
This Court reaches the same result here. Dixon has simply failed to present
any evidence which would allow this Court to reasonably infer that Wexford failed
to establish a policy requiring inmates be warned about potential side-effects. Nor
did Dixon present any evidence on why such a policy would even be necessary
given a physician’s independent duty under Illinois law to provide such a
warning. Id. Accordingly, Wexford is entitled to summary judgment.
C
Both Dixon’s Eighth and Fourteenth Amendments claims fail because, even
assuming constitutional violations, Dixon failed to present evidence that such
violations are a proximate cause of his alleged gynecomastia or other injuries.
“Liability under §1983 requires evidence that the injury ‘ha[s] a causal connection
with the alleged [constitutional] violation.’” Bradley v. Sheriff of Rock Island Cnty,
2016 WL 9775233 at *4 (C.D. Ill., Mar. 2, 2016), quoting Berman v. Young, 291 F.3d
976, 982 (7th Cir. 2002). Although ordinarily proximate cause is a question to be
decided by a jury, summary judgment is appropriate in the rare case that a plaintiff
can proffer no evidence that a constitutional injury created or exacerbated his
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injury. See Id., quoting Gayton v. McCoy, 593 F.3d 610, 624 (7th Cir. 2010). This is one
of those rare cases.
There are no experts in this case. Dixon is the only deposed witness. There
is no information regarding the connection between gynecomastia and Risperdal,
other than the fact that the parties agree it is a potential side effect of the drug.
Dixon was on Risperdal for many years before ever seeing Dr. McCormick and
had symptoms of gynecomastia before seeing Dr. McCormick—at least as early as
2007. When Dr. McCormick first saw Dixon on November 14, 2012, he did not put
Dixon back on Risperdal; rather, a different doctor placed him back on it on
December 7, 2015. Three months later, on March 9, 2016, Dr. McCormick reduced
Dixon’s Risperdal dose, maintained that reduced dose on June 1, 2016, and, as far
as the record is concerned, never treated Dixon again. On June 25, 2016, a different
doctor took Dixon off Risperdal.
Given these facts, Dr. McCormick’s relevant role in this case is limited to
reducing Dixon’s Risperdal dose and maintaining it at that level for less than four
months. Even assuming Dr. McCormick failed to warn Dixon of Risperdal’s side
effects, there is nothing in the record to demonstrate that such a failure is a
proximate cause of Dixon’s injuries. There is no evidence in the record that
reducing a Risperdal dose can cause gynecomastia or make it go away. There is
no evidence that stopping Risperdal after gynecomastia develops will improve or
make the condition go away. There is no evidence that gynecomastia can develop
as a side effect to a 1 mg dose of Risperdal. There is no evidence that gynecomastia
can develop after using it at a 1 mg dose for less than four months. There is no
evidence that stopping Risperdal after gynecomastia develops will improve or
make the condition go away. There is no evidence that reducing a Risperdal dose
from 2 mg per day to 1 mg day for four months before stopping it would have a
different effect on gynecomastia than terminating the drug immediately.
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In other words, Dixon needed to present some evidence which provides
information related to Risperdal, its usage, its dosage, and gynecomastia. When
attempting to state a claim based upon a failure to warn, the Plaintiff is obliged to
present some evidence that such a failure is a proximate cause of his injuries. Dixon
simply does not have any evidence to establish that link. Dixon needed some type
of expert evidence to establish it. The Court does not know why Dixon did not, or
could not, present expert evidence to establish proximate cause. Perhaps his
experienced, recruited counsel (himself a medical doctor) had good reasons for not
doing so, including the possibility that he was unable to find an expert witness
who would provide a helpful opinion. Ultimately, it is not appropriate for the
Court to speculate about the reasons for why the evidence is absent; this Court
must make its decision based upon the evidence presented to it. Contrast Rowe v.
Gibson, 798 F.3d 622, 630 (7th Cir. 2015) (holding the district court should have
considered appointing a pro se plaintiff an expert).
This is not a case where Dr. McCormick placed Dixon on Risperdal for the
first time in his life, and he developed gynecomastia thereafter. In that scenario,
even without the evidence missing here, one might be able to reasonably infer that
Dr. McCormick’s actions and the gynecomastia are linked, at least to the extent
that the case could survive summary judgment on the proximate cause issue. In
this case, however, Dixon’s own deposition testimony demonstrates that he was
on Risperdal for years and had enlarged breasts long before Dr. McCormick ever
saw him. Under this circumstance, Dixon needed to present some evidence of how
Dr. McCormick’s failure to warn him of Risperdal’s side-effects at the March or
June appointments are connected to his alleged injuries. He has presented nothing
to make that connection.
Therefore, Dr. McCormick is entitled to summary judgment on both the
Eighth and Fourteenth Amendments claims.
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III
For the reasons stated, supra, the Defendant’s motion for summary
judgment is granted. The Clerk is directed to enter judgment in favor of the
Defendants. This case is terminated.
It is so ordered.
Entered: January 17, 2019
s/Jonathan E. Hawley
U.S. Magistrate Judge

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