Smith v. Randall et al

Filing 129

OPINION entered by Judge Sue E. Myerscough on 07/07/2015. SEE WRITTEN OPINION. Plaintiff's motion for the appointment of an expert is denied (d/e 123 ). Defendant's supplemental motion for summary judgment is granted (d/e 109 ). The clerk is directed to terminate Attorney Costello and to close this case. (DM, ilcd)

E-FILED

Tuesday, 07 July, 2015 01:51:46 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOSEPH SMITH,

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Plaintiff,
v.
VIPIN SHAH, et al.,
Defendant,

11-CV-3092

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff pursues claims against Defendant Dr. Shah for Dr.
Shah’s alleged failure to effectively treat Plaintiff’s abdominal pain
and gastrointestinal problems from about May 2010 to March 2011,
when Dr. Shah last treated Plaintiff.
The Court denied Dr. Shah’s second summary judgment
motion, concluding that “[w]hile a juror could certainly find in Dr.
Shah’s favor on this record, the Court cannot rule out an inference
of deliberate indifference to Plaintiff’s continued complaints of
abdominal pain and difficulty digesting food. A rational juror could
find that Dr. Shah deliberately refused to rule out other causes of
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Plaintiff’s medical problems even though Dr. Shah knew his
treatment approach had not improved Plaintiff’s symptoms.” (d/e
74, p. 2.) In particular, the Court was concerned with Plaintiff’s
persistently elevated levels of amylase, which can indicate
pancreatitis. Id. at 8. Dr. Shah had concluded that the elevated
amylase level was attributable to Plaintiff’s H. Pylori infection, a
condition which Dr. Shah diagnosed and treated. The Court
assumes familiarity with that opinion.
After the Court recruited pro bono counsel for the trial, the
Court granted Dr. Shah leave to file a third summary judgment
motion, the motion now before the Court.
Plaintiff does not dispute Dr. Shah’s additional evidence that
Plaintiff’s pancreatic amylase levels were actually normal.
According to medical records attached to the third motion for
summary judgment, Dr. Thomas Baker, a prison doctor at Western
Illinois Correctional Center during the relevant time, ordered a
“fractionated amylase” and an abdominal ultrasound of Plaintiff’s
pancreas and gall bladder in December of 2012, though Dr. Baker
noted in the record that “neither [pancreatitis or choleocystitis] fit
the clinical picture well.” (d/e 109-1, p. 2.) Choleocystitis is an
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inflammation of the gall bladder. www.mayoclinic.org (last visited
7/1/2015).
The labs ordered by Dr. Baker showed that Plaintiff’s elevated
overall amylase level was attributable to a high salivary amylase
level, not an elevated pancreatic amylase level. (1/10/2013 medical
record, d/e 109-1.) The ultrasound of Plaintiff’s pancreas and gall
bladder were also normal, except that Plaintiff’s liver “reported with
patchy . .. [illegible] echogenicity, likely fatty infiltration, but
radiologist wrote that infectious and neoplastic processes need to be
excluded and recommended pre and post contrast CT abdomen.”
(1/10/13 medical record, d/e 109-1, p. 2.) Dr. Baker referred
Plaintiff for a CT scan, though Dr. Baker noted that the suspicion
for infection or neoplasm was low. Dr. Baker advised Plaintiff to
avoid the food that caused Plaintiff gastrointestinal trouble. Id. Dr.
Baker’s physical exam of Plaintiff was unremarkable, including an
exam of Plaintiff’s salivary gland. Dr. Baker concluded that
Plaintiff’s elevated salivary amylase was asymptomatic. Id. The
results of the CT scan, if one was done, are not in the record, and
Dr. Baker is not a defendant.

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This additional evidence addresses the Court’s concern that
Dr. Shah had failed to rule out pancreatitis. The evidence also
shows that another doctor, Dr. Baker, agreed with Dr. Shah that
Plaintiff’s clinical presentation did not fit the picture for
pancreatitis.
Plaintiff does not dispute the lab results, but he “denies that
one test is determinative of Plaintiff’s claims.” (Pl.’s Resp. p. 2.) He
offers a list of conditions which may cause elevated blood amylase
levels. (Pl.’s proposed additional fact 41.) He contends that the H.
Pylori “only masked and or demonstrated Smith’s pancreatic
infection.” (Pl.’s Resp. p. 16, d/e 122.) However, he offers no
evidence that Plaintiff actually had a pancreatic infection at any
time. Plaintiff complained of the same symptoms to Dr. Baker that
Plaintiff had complained of to Dr. Shah, and the tests ordered by
Dr. Baker showed a normal pancreas and normal pancreas amylase
level.
Plaintiff contends that he still needs unspecified treatment for
his problems, but Dr. Shah is the only defendant in this case, and
Dr. Shah has not treated Plaintiff for four years. If Plaintiff’s

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current doctors are being deliberately indifferent, Plaintiff may file a
new lawsuit after exhausting his administrative grievances.
The Court has a duty to ensure that material factual disputes
exist for the jury to decide. See Watts v. Network Solutions, Inc.,
1999 WL 778389 *4 (S.D. Ind. 1999)(“If there are no genuine issues
of material fact, a jury trial is a waste of time for the jurors, the
court, and the parties.”)(unpublished). Additionally, summary
judgment is not a discretionary remedy. Dr. Shah is entitled to
summary judgment if no rational juror could find in Plaintiff’s favor.
Fed. R. Civ. P. 56(a)(“The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”)
In the Court’s opinion, the additional evidence removes any
doubt about deliberate indifference. Dr. Shah’s second summary
judgment motion should arguably have been granted to begin with,
but the Court was concerned about Plaintiff’s elevated amylase
level. The Court is obviously not a doctor, but the Court will not
ignore obvious possible diagnoses described in reputable sources,
particular in a pro se prisoner case where the plaintiff does not
have access to that information or access to other doctors for a
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second opinion. The website for the U.S. National Library of
Medicine indicates that elevated blood amylase levels may be
caused by serious conditions including pancreatitis and gall
bladder disease. www.nlm.nih.gov/medlineplus/ency (“Amylase—
blood”). The Court was concerned that Dr. Shah had not ordered
further tests in light of Plaintiff’s amylase level, which continued to
be high even after Plaintiff’s treatment for H. Pylori.
However, the additional evidence shows that Dr. Baker did
order further tests about nine months after Dr. Shah last treated
Plaintiff. These tests show that Plaintiff’s elevated amylase level
was attributable to his salivary gland, that his pancreatic amylase
level was normal, and that his pancreas and gall bladder were
normal on ultrasound examination. Dr. Baker’s notes state that
Plaintiff had no nodules, lumps, or enlargement of his salivary
gland and that the elevated salivary amylase was asymptomatic.
Therefore, even if Dr. Shah should have ordered these tests earlier
to rule out pancreatitis and gall bladder disease, Plaintiff suffered
no harm from Dr. Shah’s failure to do so because the test results
were negative. The tests did not alter the treatment of Plaintiff’s
symptoms. Walker v. Peters, 233 F.3d 494, 502 (7th Cir.
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2000)(summary judgment appropriate where plaintiff had no
competent evidence that he was harmed by delays or refusals to
provide Factor VIII for hemophilia).
That Plaintiff is still experiencing intestinal problems does not
mean that Dr. Shah was deliberately indifferent. Dr. Shah treated
Plaintiff for less than one year and has not treated Plaintiff for over
four years. During the year that Dr. Shah was responsible for
Plaintiff’s care, Dr. Shah ordered lab tests, including a soy allergy
test, a thyroid test, cholesterol tests, and a test for lipase levels. He
treated Plaintiff’s H. pylori infection and also prescribed Prilosec,
Bioxin, Pepto Bismol, and Flagyl. (Dr. Shah Aff. para. 9.) No
rational juror could find that Dr. Shah’s approach was outside the
acceptable standard of care, much less substantially so.
Duckworth v. Ahmad, 532 F.3d 675, 681 (7th Cir. 2008)(no
deliberate indifference where doctor “tried to cure what he thought
was wrong . . ., an opinion he arrived at using medical judgment.”)
Plaintiff moves for the appointment of an expert under Federal
Rule of Evidence 706 to help him prove his case. Rule 706 permits
a court to appoint a neutral expert to assist the trier of fact, not to
prove a party’s case. See Turner v. Cox, 569 Fed.Appx. 463, 468
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(7th Cir. 2014)(“A court may appoint an expert to help sort through
conflicting evidence, . . ., but it need not appoint an expert for a
party's own benefit . . .”). Further, even if Plaintiff had evidence
that another doctor would have had a different approach, that
would not be enough to show deliberate indifference on this record.
Norfleet v. Webster, 439 F.3d 392, 396, 396 (7th Cir. 2006)(“[A]
difference of opinion among physicians on how an inmate should be
treated cannot support a finding of deliberate indifference”). Estate
of Cole v. Fromm, 94 F.3d 254, 261 (7th Cir.1996) (“Mere
differences of opinion among medical personnel regarding a
patient's appropriate treatment do not give rise to deliberate
indifference.”).
In sum, a jury verdict for Plaintiff would not be supported by
the evidence in the record because no evidence supports a finding
that Dr. Shah was deliberately indifferent. Therefore, summary
judgment must be granted to Dr. Shah.

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IT IS THEREFORE ORDERED:

1. Plaintiff’s motion for the appointment of an expert is denied
(d/e 123).
2. Defendant’s supplemental motion for summary judgment is
granted (d/e 109). The clerk of the court is directed to enter
judgment in favor of Defendants and against Plaintiff. This
case is closed, with the parties to bear their own costs. All
deadlines and settings on the Court’s calendar are vacated.
3. Attorney Costello is discharged as Plaintiff’s pro bono counsel,
with the Court’s gratitude. Plaintiff proceeds pro se from the
entry of this order.
4. If Plaintiff wishes to appeal this judgment, he must file a
notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal
in forma pauperis should identify the issues Plaintiff will
present on appeal. See Fed. R. App. P. 24(a)(1)(c). If Plaintiff
does choose to appeal, he will be liable for the $455.00
appellate filing fee regardless of the outcome of the appeal.

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5. The clerk is directed to terminate Attorney Costello and
to close this case.
ENTER: 07/07/2015
FOR THE COURT:

s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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