Taliani v. Wexford Health Sources et al
Filing
59
OPINION: Plaintiff's motion for summary judgment is denied. (d/e 35 .) Defendants' motion for summary judgment is denied. (d/e 50 .) Defendant "John Doe" is dismissed without prejudice. Plaintiff has not identified the John Doe Defendant, and discovery is closed. This case is referred to the Magistrate Judge to conduct a settlement conference. The clerk is directed to notify the Magistrate Judge of this referral. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 2/16/2018. (MJC, ilcd)
E-FILED
Friday, 16 February, 2018 11:03:21 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
STEVEN A. TALIANI,
Plaintiff,
v.
WEXFORD HEALTH SOURCES,
INC., DIANE POUK, JAMES
CARUSO, RILIWAN OJELADE,
SHAWNA JONESON, ANDREW
TILDEN, JOHN DOE,
Defendants.
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17-CV-1055
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, proceeding pro se from his incarceration in the Hill
Correctional Center, pursues claims for deliberate indifference to
his asthma during various times in 2015 and 2016 at the Pontiac
Correctional Center.
Both sides move for summary judgment. In considering these
motions, the Court has viewed the evidence in the light most
favorable to the nonmovant, resolving material factual disputes in
the nonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). That standard warrants denying both motions,
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either because disputed issues of material fact exist or because the
record is not developed enough to make the determination.
Analysis
Plaintiff has had asthma since he was a child and so is
familiar with the symptoms and warning signs when his asthma is
not well controlled. Unlike some child asthmatics, Plaintiff never
outgrew his asthma and, drawing inferences in Plaintiff’s favor,
Plaintiff still needs two kinds of inhalers to keep his asthma under
control: a corticoid steroid inhaler taken every day and a “shortacting beta-2 agonist” used every 4-6 hours on an as needed basis
for acute flare-ups. Plaintiff’s asthma has been relatively well
controlled on a corticoid steroid inhaler called Alvesco—two daily
inhalations (160 mg)—and a short-acting inhaler, Xopenex, used on
an as needed basis.
No one disputes that Plaintiff’s asthma is a serious medical
need. The question is whether any of Defendants were deliberately
indifferent. Deliberate indifference is the conscious disregard of a
substantial risk of serious harm. An inference of deliberate
indifference can arise if medical professionals take actions (or
inactions) which are “such a substantial departure from accepted
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professional judgment, practice, or standards as to demonstrate
that the person responsible did not base the decision on such a
[professional] judgment.” Petties v. Carter, 836 F.3d 722, 729 (7th
Cir. 2016) (quoting Cole v. Fromm, 94 F.3d 254, 261–62 (7th Cir.
1996)).
Plaintiff’s claims center around delays in obtaining refills of his
inhalers and the cessation of Plaintiff’s corticoid steroid inhaler.
Plaintiff also challenges Wexford’s written policy regarding refills of
short-acting beta-2 agonists and Wexford’s alleged policy of
permitting only one medical complaint per visit. The Court’s
analysis is organized by Defendant since the claims against each
Defendant do not necessarily overlap.
I. Defendant Pouk
Plaintiff had trouble obtaining timely refills of his inhalers in
June and July of 2015. In particular, the refill of Plaintiff’s Alvesco
inhaler was 12 days late in June 2015 and six days late in July
2015. Plaintiff’s refill of Xopenex was eight days late in June 2015.
According to Plaintiff, Plaintiff sent many requests to Defendant
Pouk during this time period, with no response. (Medical Requests
attached to Complaint, d/e 1-1, pp. 9-18.)(e.g., “Out! Out! Out!
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Please refill RX Alvesco 160 inhaler Rx Xopenex inhaler having
shortness of breath and pain on left side of chest”). Defendant
Pouk was the Director of Nursing at Pontiac Correctional Center at
the time.
Defendant Pouk avers that she cannot recall receiving any of
Plaintiff’s requests for refills and that, in any event, sending the
request to her would not have been the proper procedure. However,
Defendant Pouk does not explain what the proper procedure was or
where Plaintiff’s requests, addressed directly to Defendant Pouk,
would have been sent. Additionally, though Defendant Pouk did
not have the authority to write prescriptions, she did have the
authority to review the status of Plaintiff’s prescription. (Pouk Aff. ¶
10.) The medical records show that Plaintiff already had current
orders for refills through August 2015. (6/22/15 Progress Note,
d/e 50-6, p. 16; Medication Administration Records, d/e 50-7, p.
31, showing prescriptions for Alvesco and Xopenex through August
2015.) Defendant Caruso, a Physician Assistant, avers that he
prescribed these inhalers on January 29, 2015, for seven months,
which would have taken Plaintiff to near the end of August 2015.
(Caruso Aff. ¶ 4.) Defendant Pouk, then, would not have had to
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write any prescriptions for Plaintiff. Defendant Pouk does not
address who is responsible for ensuring prescribed refills are filled
timely or why Plaintiff’s refills were late. In short, the record is not
developed enough to rule out a reasonable inference that Defendant
Pouk knew that Plaintiff needed refills to adequately control
Plaintiff’s asthma and that Defendant Pouk had the authority to
make that happen. Whether Plaintiff suffered constitutionallyactionable harm from these temporary delays is questionable, but
that question is not addressed by Defendants.
II. Defendant Caruso
Defendant Caruso worked as a Physician Assistant at Pontiac
Correctional Center from September 15, 2014, through January 5,
2016. Defendant Caruso saw Plaintiff on various dates for various
ailments during this time period, including the assessment of
Plaintiff’s asthma at the asthma chronic clinic.
Defendant Caruso first saw Plaintiff on January 29, 2015 and
continued Plaintiff’s prescriptions for Alvesco and Xopenex for seven
months. (Caruso Aff. ¶ 4.) Defendant Caruso realized on July 27,
2015, that Plaintiff had been receiving only 80 mg of Alvesco, even
though Defendant Caruso had prescribed 160 mg. Defendant
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Caruso then increased the dosage to 160 mg to correct the dosage.
(Caruso Aff. ¶ 9.)
Plaintiff focuses on one visit with Defendant Caruso at the
asthma clinic on July 21, 2015. Plaintiff contends that Defendant
Caruso did not “provide an education plan,” failed to conduct a
meaningful physical exam, and failed to conduct a peak flow test.
Plaintiff also contends that Plaintiff told Defendant Caruso that
Plaintiff’s inhalers were out and that Defendant Caruso allegedly
refused to obtain inhalers from what Plaintiff believes the prison
keeps as an emergency back-up stock.
Defendant Caruso avers that Plaintiff’s asthma was stable on
July 21, 2015 and Plaintiff did not require “any evaluation other
than those normally completed during an asthma chronic clinic
which would include patient discussion, renewal of medications,
and an opportunity for Plaintiff to address any concerns he had
with regard to his chronic condition.” (Caruso Aff. ¶ 18.)
Defendant Caruso argues, and the Court agrees, that Plaintiff
does not explain what harm Plaintiff suffered from not being
provided an education plan, a physical exam, or a peak flow test at
the asthma clinic July 21, 2015. Plaintiff did not need to be
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educated about asthma, having lived with asthma since childhood.
And, a less than thorough exam (accepting Plaintiff’s version) does
not by itself give rise to a constitutional violation.
However, Defendant Caruso does not address Plaintiff’s
allegation about needing inhaler refills. Plaintiff would not have
been out of his Xopenex inhaler at the July 21 visit because that
inhaler had just been refilled on June 18, 2015. However,
Plaintiff’s Alvesco inhaler lasted only 30 days as prescribed and
would have run out on or around July 17, four days before
Plaintiff saw Defendant Caruso and two days after Plaintiff started
sending requests for a refill. Plaintiff also saw Defendant Caruso
on June 20, 2015, (Caruso Aff. ¶ 7), which was shortly after
Plaintiff had problems with his June refills. Defendant Caruso
does not explain what control, if any, he had over seeing that the
inhalers were timely refilled.
A reasonable inference arises that, like Defendant Pouk,
Defendant Caruso knew that Plaintiff needed refills of his inhalers
and had the authority to do something about it. Again, whether
Plaintiff suffered harm from these temporary delays is
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questionable, but Defendant Caruso does not address this issue.
Summary judgment is denied for Defendant Caruso.
III. Defendants Tilden, Ojelade, and Joneson
Defendant Dr. Tilden discontinued Plaintiff’s Alvesco inhaler
altogether on July 20, 2016. Dr. Tilden avers that he did this
because of the possible negative effects of the long term use of
steroids and the fact that Plaintiff’s asthma had been stable for a
long period of time. (Tilden Aff. ¶¶ 7-8.) Dr. Tilden avers that his
plan was to monitor the situation to determine if Plaintiff still
needed the steroid inhaler. (Tilden Aff. ¶9.) Plaintiff was still
provided his short-acting inhaler.
Plaintiff maintains that Dr. Tilden never told Plaintiff about the
discontinuation of Plaintiff’s Alvesco inhaler, though that fact
would have been obvious to Plaintiff when Plaintiff received no
refill. Shortly after the discontinuation, Plaintiff began
experiencing symptoms such as shortness of breath and tightness
in his chest. On August 31, 2016, Plaintiff saw Defendant Ojelade,
a Nurse Practitioner, who refused to restart Plaintiff’s Alvesco.
Plaintiff’s understanding from this interaction was that Defendant
Ojelade’s refusal was not based on independent medical judgment
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but instead on going along with Dr. Tilden’s plan to “test” the
asthmatics to try to save money.
A few days later, on September 2, 2016, Plaintiff saw
Defendant Joneson, a sick call nurse, for the same asthma
complaints, as well as complaints about Plaintiff’s shoulder and a
cold. Defendant Joneson told Plaintiff to pick one complaint to be
addressed. Plaintiff chose his asthma, and Defendant Joneson
referred Plaintiff to the next level of medical provider.
Seven days later, on September 9, 2016, Plaintiff saw
Defendant Ojelade. Defendant Ojelade again did not restart
Plaintiff’s Alvesco. On September 29, 2016, Plaintiff summoned a
Lieutenant Evans, seeking help for what Plaintiff describes as a
cough and severe chest pains. According to Plaintiff, Lieutenant
Evans tried to help by calling the medical unit, but nothing
happened. Plaintiff then filed an emergency grievance and was
seen by a Nurse Hansen on September 30, 2015. Plaintiff asserts
that he was wheezing and had difficulty breathing. Nurse Hansen
diagnosed an exacerbation of Plaintiff’s asthma and restarted the
Alvesco. Nurse Hansen also administered a nebulizer treatment
and prescribed Claritin and Prednisone.
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Dr. Tilden argues that his decision to discontinue Plaintiff’s
Alvesco was based on Dr. Tilden’s professional judgment to
minimize the possible negative effects of taking Alvesco
unnecessarily. A rational juror could agree.
A rational juror could also disagree. Dr. Tilden does not
address Plaintiff’s contention that the Alvesco should have been
tapered rather than abruptly stopped, and Dr. Tilden set up no
follow-up appointments to see how Plaintiff was handling this
significant change in Plaintiff’s medications. Nor did Dr. Tilden
note in the records that the discontinuation was a trial or that the
Alvesco should be restarted if Plaintiff began to experience
symptoms. Arguably, Defendant Ojelade chose not to exercise his
independent professional judgment to override Dr. Tilden, the
Medical Director.
Defendant Joneson, the nurse who saw Plaintiff during this
time period, correctly points out that she referred Plaintiff to see
the next level of medical professional and that she did not have
prescription authority. However, if Plaintiff’s condition was as
described by Plaintiff, Defendant Joneson arguably should have
recognized the need for immediate referral. Instead, Plaintiff did
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not see Defendant Ojelade for seven days. Damages against
Defendant Joneson may be difficult to prove since Defendant
Ojelade did not restart the Alvesco, but the Court cannot rule out
potential liability for Joneson on this record. Reasonable
inferences arise in Defendants’ favor, too, but that just
demonstrates the existence of disputed material facts for trial.
IV. Wexford Health Sources, Inc.
Wexford Health Sources, Inc. (Wexford), can be liable only if
policies or practices attributable to Wexford caused the deliberate
indifference to Plaintiff’s asthma. Teesdale v. City of Chicago, 690
F.3d 829, 833-34 (7th Cir. 2012)(quoted cite
omitted)(policy/practice must be “moving force” behind
constitutional violation).
Plaintiff contends that Wexford has a written policy limiting
refills on short-acting inhalers to every 180 days. (Wexford’s 2011
Asthma Initiative, d/e 35-3, p. 18.) This is the same policy Plaintiff
challenged unsuccessfully in his prior case, Taliani v. Wexford
Health Sources, 13-cv-1471 (C.D. Ill.). The Court agrees with
Defendants that Plaintiff’s challenge to the facial validity of this
written policy is barred by res judicata. Plaintiff argues that the
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Judge in this prior case failed to give Plaintiff an opportunity to fully
litigate this issue because the Judge denied Plaintiff’s motion for an
extension. Plaintiff could have appealed that case and made that
argument on appeal, but he did not. See Vaughn v. Chapman, 662
F’Appx. 464, 466 (7th Cir. 2016)(not published in F.Rptr.)(“Vaughn
abandoned his appeal from the earlier judgment, and by doing so
he abandoned any contention that his initial lawsuit was dismissed
erroneously.”) Plaintiff cannot pursue the same claim in this case
which was already decided against him in his prior case.
In any event, the written policy allows for exceptions if a
patient needs a short-acting inhaler more often than every 180
days. The policy as written allows for the exercise of independent
medical judgment. And, the 180-day policy is not even relevant
because the policy was not applied to Plaintiff. Plaintiff points to no
period of time relevant to this case in which he did not have an
active prescription for a short-acting inhaler. The delays in refilling
this inhaler were not attributable to the 180-day policy.
Plaintiff also argues that Wexford has a policy of limiting
patients to one medical complaint per visit. Dr. Tilden agrees that
generally patients are asked to address only one non-acute medical
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problem per visit but that this does not apply when a patient has an
urgent medical need. (Tilden Aff. ¶ 17.) In the abstract, the Court
does not see a constitutional problem with this practice. The
practice arguably ensures that the greatest number of patients are
seen on any given day.
In any event, Plaintiff has no evidence that the practice as
applied to him amounted to deliberate indifference to his serious
medical needs. Plaintiff takes issue with Defendant Joneson, whom
Plaintiff saw on September 2, 2016, for complaints of an asthma
exacerbation, shoulder pain, and a cold. Joneson told Plaintiff to
pick the one problem Plaintiff wanted to address, and Plaintiff chose
his asthma exacerbation. Plaintiff has no evidence that his cold
was a serious medical need. See Gibson v. McEvers, 631 F.2d 95
(7th Cir. 1980)(“Plaintiff's allegation that he was refused medical
treatment for a cold does not show deliberate indifference to a
serious medical need, and therefore there was no violation of his
constitutional rights.”). Plaintiff’s shoulder pain was treated by
Defendant Ojelade on September 9, 2016, after Joneson’s referral.
Defendant Ojelade renewed Plaintiff’s Mobic prescription and
analgesic balm. (Ojelade Aff. ¶ 8.) Thus, Dr. Ojelade addressed
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more than one complaint of Plaintiff’s despite the one-complaint
practice. Plaintiff suffered no constitutionally actionable harm from
the one-complaint-per-visit practice.
Wexford could be liable if any evidence suggested that the refill
delays or the decision to stop Plaintiff’s Alvesco was caused by a
Wexford practice or policy. The Court sees no such evidence. On
the other hand, Defendants do not address this possibility in their
motion for summary judgment. At this point, Wexford will remain
in the case on the possibility that a Wexford practice or policy
caused the refill delays or Dr. Tilden’s cessation of the Alvesco. If
this case does not settle, the Court will consider whether
Defendants Wexford, Pouk, or Caruso may file a renewed motion for
summary judgment.
IT IS THEREFORE ORDERED:
1)
Plaintiff’s motion for summary judgment is denied. (d/e
2)
Defendants’ motion for summary judgment is denied.
35.)
(d/e 50.)
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3)
Defendant “John Doe” is dismissed without prejudice.
Plaintiff has not identified the John Doe Defendant, and discovery is
closed.
4)
This case is referred to the Magistrate Judge to conduct
a settlement conference.
5)
The clerk is directed to notify the Magistrate Judge of
this referral.
ENTERED: February 16, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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