Dismukes v. Baker et al
Filing
44
OPINION: Defendant Fuqua's motion for summary judgment is granted (d/e 38 ). Defendant Dr. Baker's motion for summary judgment is denied (d/e 36 ), with leave to renew by February 28, 2013. The final pretrial conference is rescheduled to June 3, 2013 at 1:30 p.m.. The trial date is vacated, to be rescheduled at the final pretrial conference. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 1/2/13. (MJ, ilcd)
E-FILED
Wednesday, 02 January, 2013 04:24:40 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
COREY DISMUKES,
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Plaintiff,
v.
DR. THOMAS BAKER and
DEBORAH FUQUA,
Defendants.
11-CV-3345
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff is incarcerated in Western Illinois Correctional Center. He
pursues an Eighth Amendment claim against his treating physician, Dr.
Baker, and the health care unit administrator at the prison, Deborah
Fuqua. Specifically, Plaintiff alleges that Defendants have failed to treat
a large lipoma near the base of the right side of Plaintiff’s head, which
Plaintiff contends is causing him constant headaches, memory loss, pain,
and difficulty sleeping. Plaintiff’s lipoma can be seen on Plaintiff’s
picture on the Illinois Department of Corrections website,
www.idoc.state.il.us (picture attached).
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Before the Court are Defendants’ motions for summary judgment.
Defendant Fuqua’s motion will be granted because she is entitled to rely
on Dr. Baker’s diagnosis and treatment decisions.
Dr. Baker’s motion for summary judgment is more troublesome.
Plaintiff has no evidence that the lipoma is, by itself, dangerous to
Plaintiff’s current or future health. Plaintiff has no evidence to
controvert Dr. Baker’s opinion that lipomas, as a general matter, are
benign, asymptomatic, and require no treatment. However, Plaintiff does
aver that his lipoma is causing him significant pain, and Dr. Baker does
not specifically address this aspect of Plaintiff’s claim. After careful
consideration, the Court concludes that too many questions remain to
grant Dr. Baker’s motion for summary judgment. Accordingly, Dr.
Baker’s motion will be denied, with leave to renew.
FACTS
Plaintiff was admitted to the IDOC in February, 2009. In October,
2010, while at Lawrence Correctional Center, Plaintiff saw the prison
doctor regarding a lump on Plaintiff’s scalp in the right occipital area,
which is the right posterior lobe of the cerebral hemisphere. At that time
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the lump was described in the medical records as “egg sized.” (10/21/10
medical progress note, d/e 42-1, p. 1.) Plaintiff was told that removal of
the lump would be cosmetic or elective. Id.
Plaintiff was transferred to Western Correctional Center in
November, 2010. He was referred to the doctor to examine “a fluid filled
sack on the back of [Plaintiff’s] head” and for a low bunk permit.
(11/10/10 medical progress note, d/e 36-1, p. 21.) Dr. Shah saw Plaintiff
on 11/19/10, but Dr. Shah’s notes from that date are illegible.
In April 2011, Plaintiff presented to a nurse complaining of
migraine headaches. (4/8/11 medical progress note, d/e 36-1, p. 32.) The
nurse’s note states that Plaintiff had a “large baseball sized soft nodule on
back [right] side of head. States had it for [years] but is getting larger.”
Id.
Dr. Shah saw Plaintiff again on May 1, 2011 regarding Plaintiff’s
complaints of headaches. Dr. Shah’s notes are, again, mostly illegible,
but the parties agree that Dr. Shah referred Plaintiff to Dr. Baker
regarding the mass on the back of Plaintiff’s head. (5/1/11 medical
progress note, d/e 42-1, Ex. A-3.) Dr. Baker was and continues to be the
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Medical Director at Western, in charge of supervising the other
physicians and medical professionals at the prison. Plaintiff asserts that
Dr. Shah’s referral recommends surgery, but Dr. Baker contends that Dr.
Shah’s referral was only for consideration of drainage or surgical removal.
Dr. Baker saw Plaintiff May 9, 2011 and diagnosed Plaintiff’s mass
as a lipoma. Dr. Baker noted that the lipoma measured 7-8 cm by 9-10
cm. According to Dr. Baker’s undisputed testimony, “[a] lipoma is a
growth of fatty tissue. Lipomas are rarely symptomatic and treatment is
usually not required.” (Dr. Baker Aff. ¶ 9.) Dr. Baker explained to
Plaintiff that the lipoma was not infected, so Dr. Shah’s idea of incision
and drainage would not help. Dr. Baker also told Plaintiff that lipomas
are “cosmetic/comfort” issues and that there was no medical necessity for
removal of Plaintiff’s lipoma. Dr. Baker prescribed Tylenol to Plaintiff
and scheduled him for a follow-up the next month to check on the
lipoma’s size.
Thereafter, Dr. Baker saw Plaintiff monthly to check on the size of
Plaintiff’s lipoma. Dr. Baker’s monthly measurements of the lipoma
between May 2011 and January 2012 were consistently 6-8 cm by 8.5-10
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cm. However, in January 2012, Nurse Mills measured the lipoma at 12
cm by 10 cm. Plaintiff does not dispute that Nurse Mills measured the
lipoma by laying the tape measure along the entire curve of the lipoma,
rather than by holding the tape measure above the lipoma for an accurate
measure of the lipoma’s diameter, as Dr. Baker had done. (medical
progress note dated 1/19/12.) Dr. Baker avers that the lipoma has not
changed in size, although the measurements since January 2012 are not
in the record. On the other hand, Plaintiff avers that the lipoma appears
to have tripled in size since Dr. Baker started treating Plaintiff, but
Plaintiff does not explain the grounds for his conclusion. (Plaintiff’s Aff.
¶ 4, d/e 42, p. 17.).
In September 2001, during Dr. Baker’s monthly check of Plaintiff’s
lipoma, Dr. Baker decided to perform a neurological study to determine
whether any objective evidence supported a connection between
Plaintiff’s headaches and the lipoma. Dr. Baker determined that Plaintiff
had normal strength and grip and “tested symmetric in his elbows,
shoulders, hips and knees.” Dr. Baker “found no neurological defects,
and no evidence connecting the Plaintiff’s headaches to his lipoma.” (Dr.
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Baker’s Aff. ¶ 17, d/e 36-1, p. 3.)
On January 9, 2012, Plaintiff saw Nurse Mills for complaints of
headaches. Nurse Mills wrote in her notes “refer to M.D. for evaluation
for need for removal due to c/o pain, [increase] size or continue as
ordered.” (1/9/12 medical progress note, d/e 42-1, p. 10.) Plaintiff was
prescribed Excedrin Migraine for his headaches.
Dr. Baker saw Plaintiff on January 19, 2012. Dr. Baker determined
that Plaintiff’s lipoma had not increased in size, despite Nurse Mills’
measurements. As discussed above, Nurse Mills had used a different
measuring technique. Dr. Baker’s notes reflect that Plaintiff said, “I keep
telling you it hurts, but you don’t listen.” Dr. Baker did not observe any
outward signs which would indicate Plaintiff was in pain. (1/19/12
medical progress note, d/e 42-1, p. 11.) Dr. Baker’s 1/19/12 progress
note states “continued next page,” but the Court does not see the next
page in the record. The Court does not see any medical records dated
after 1/19/12.
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Plaintiff has consistently complained to health care staff of bad
headaches, memory loss, and pain which he believes to be caused by the
lipoma. Plaintiff testified in his deposition that the headaches did not
start until the lipoma grew larger. Plaintiff also asserts that he is taking
medication for depression, which he believes is caused by the ridiculing
he endures from IDOC employees and other inmates about his
disfigurement. (Pl.’s Dep. pp. 40-41.)
Dr. Baker avers that, “[i]n my professional medical opinion . . ., a
lipoma is a cosmetic condition which is asymptomatic. I also do not
believe, to a reasonable degree of medical certainty, that Mr. Dismukes
complaints of headaches and memory loss are caused by, or otherwise
connected to, his lipoma.” (Dr. Baker Aff. ¶ 20.) In Dr. Baker’s opinion,
removal of Plaintiff's lipoma is a cosmetic, elective procedure. (Dr.
Baker’s Aff. ¶ 7.)
ANALYSIS
Plaintiff’s claim falls under the Eighth Amendment to the
Constitution, which prohibits cruel and unusual punishment. In the
context of medical care for prisoners, cruel and unusual punishment
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occurs when a Defendant is deliberately indifferent to a serious medical
need of a prisoner:
A prisoner's claim for deliberate indifference must establish
“(1) an objectively serious medical condition; and (2) an
official's deliberate indifference to that condition.” Arnett,
658 F.3d at 750. Deliberate indifference is proven by
demonstrating that a prison official knows of a substantial
risk of harm to an inmate and “either acts or fails to act in
disregard of that risk.” Id. at 751.
Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012). A condition can
be considered serious if, without treatment, the plaintiff suffers “‘further
significant injury or unnecessary and wanton infliction of pain.’” Id.
Negligence, even gross negligence, will not make out a claim for
deliberate indifference. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.
2010). Deliberate indifference requires personal knowledge of an
inmate’s serious medical need and an intentional or reckless disregard of
that need. Id.; Hayes, 546 F.3d at 524. Deliberate indifference arises “‘if
the decision by the professional is such a substantial departure from
accepted professional judgment, practice, or standards, as to demonstrate
that the person responsible actually did not base the decision on such a
judgment.’” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)(quoting Sain
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v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2009). In other words, “[a]
medical professional is entitled to deference in treatment decisions unless
no minimally competent professional would have so responded under
those circumstances.” Sain, 512 F.3d at 894-95.
Plaintiff argues that Dr. Baker disregarded the recommendations of
Dr. Shah and Nurse Mills to remove the lipoma, but that argument
misstates the record, at least as to Nurse Mills. Nurse Mills’ note states
“refer to M.D. for evaluation for need for removal due to c/o pain,
[increase] size or continue as ordered.” (1/9/12 medical progress note, d/e
42-1, p. 10.) Nurse Mills did not recommend any specific treatment.
Dr. Shah’s note is more difficult to read, but even if Dr. Shah did
recommend surgery, this would be at most a difference of medical
opinion, not evidence of deliberate indifference by Dr. Baker. 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”). Failure to follow a specialist’s
recommendation might allow an inference of deliberate indifference in
the right circumstance, Gil v. Reed, 381 F.3d 649, 663-64 (7th Cir.
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2004), but Dr. Shah is not a specialist. In sum, these referrals are not
evidence of deliberate indifference by Dr. Baker.
Plaintiff contends that removal is necessary because of the constant
ridicule he endures from other inmates and employees, which he believes
has caused his depression. But the oafish behavior of others does not
factor into whether removing the lipoma is medically necessary. Further,
no evidence suggests that Plaintiff has a mental condition to which Dr.
Baker has been deliberately indifferent. Plaintiff is currently taking an
anti-depressant.
The only evidence in the record of a serious medical need or
deliberate indifference thereto arises from Plaintiff’s own testimony about
the pain he experiences. “[D]eliberate indifference to prolonged,
unnecessary pain can . . . be the basis for an Eighth Amendment claim . .
. ‘The length of the delay that is tolerable depends on the seriousness of
the condition and the ease of providing treatment.’” Smith v. Knox
County Jail, 666 F.3d 1037, 1040 (7th Cir. 2012)(quoted cite omitted).
Plaintiff submits an affidavit in response to the summary judgment
motion in which he avers that he suffers excruciating pain if he lies on
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the lipoma. (Pl.’s Aff. ¶ 8.). He avers that he has “begun to experience
pain down my spinal cord or upper back pain/right side of my neck.”
Plaintiff testified in his deposition that his neck hurts and that he cannot
sleep on his back or side. (Pl.’s Dep. p. 22.) The medical records reflect
that Plaintiff has complained consistently that the lipoma itself hurts.
He has also complained consistently of memory loss and bad headaches,
which he believes are attributable to the lipoma.
In Dr. Baker’s medical opinion, the lipoma is not the cause of, nor
is it connected to, Plaintiff’s headaches and memory problems. However,
Dr. Baker does not explain how the size and location of Plaintiff’s lipoma
factor into this conclusion. Nor does he address whether Plaintiff’s claim
that the headaches started when the lipoma grew can be considered as
evidence that the lipoma’s growth is a contributing cause to Plaintiff’s
headaches. Is it possible that the lipoma is exerting sufficient pressure on
Plaintiff’s nerves or blood vessels to cause or contribute to causing
Plaintiff’s headaches? Assuming, arguendo, that the lipoma is causing
Plaintiff’s pain, what are the treatment options, and would Dr. Baker
recommend consideration of any of them? How did Dr. Baker’s test for
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muscle strength rule out whether the lipoma is causing Plaintiff’s
headaches?
On the other hand, the Court cannot tell on this record whether a
question of disputed fact exists for the jury. The extent of Plaintiff’s pain
is not clear. Plaintiff testified in his deposition that he works as a porter,
attends yard, lifts weights, and plays basketball, activities which suggest
that Plaintiff’s pain falls more on the side of discomfort than serious
pain. (Pl.’s Dep. p. 11.); cf. Gonzales v. Feinerman, 663 F.3d 311 (7th
Cir. 2011)(refusal to authorize hernia surgery could amount to deliberate
indifference where plaintiff’s pain was “so debilitating that he cannot
carry on his daily activities or sleep comfortably”’). Moreover, Dr. Baker
has not been deliberately indifferent to Plaintiff’s pain. Dr. Baker has
prescribed pain medication such as Tylenol and Excedrin. Plaintiff
concedes that the Excedrin helps his headaches provided he avoids
touching the lipoma or lying on it. (d/e 42, p. 7.)
After careful consideration, the Court concludes that summary
judgment cannot be granted to Dr. Baker in light of Plaintiff’s complaints
of pain. Dr. Baker’s affidavit addresses Plaintiff’s headaches but does not
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address Plaintiff’s other complaints of pain. Dr. Baker avers generally
that lipomas are rarely symptomatic, but he does not specifically address
whether the location and size of Plaintiff’s lipoma could cause the neck
and back pain complained of by Plaintiff. Are Plaintiff’s complaints of
pain consistent with pain that could be caused by his large lipoma
pressing on Plaintiff’s nerves or blood vessels? Is Plaintiff one of the rare
cases in which a lipoma is symptomatic?
The unpublished cases cited by Dr. Baker do not hold that a lipoma
can never amount to a serious medical need. The plaintiff in Flores
complained that a lipoma on his hip affected his muscle function, but he
did not contest the notations in his medical records that his range of
motion and strength were unaffected. Flores v. Wellborn, 119 Fed.Appx.
5 (7th Cir. 2004). In Martinez, the plaintiff complained only that a
lipoma on his back was tender and that he could not sleep on one side.
Martinez v. Hedrick, 36 Fed.Appx. 209 (7th Cir. 2002). The plaintiff in
Kendrick challenged the prison’s refusal to refer him to an oncologist for
what the prison doctor had diagnosed as a golf-sized fatty and benign
mass in plaintiff’s arm. None of these cases involved a large lipoma on
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the back of the head like Plaintiff’s, or complaints of constant headaches,
neck and back pain, and “excruciating” pain when lying on the lipoma.
In short, too many questions remain unanswered for the Court to
confidently grant summary judgment to Dr. Baker.
The conclusion is different for Deborah Fuqua. As the health care
unit administrator, she was entitled to rely on Dr. Baker’s diagnosis and
treatment decisions. Greeno v. Daley, 414 F.3d 645, 656 (7th Cir.
2005)(“‘If a prisoner is under the care of medical experts... a nonmedical
prison official will generally be justified in believing that the prisoner is in
capable hands.’”)(quoted cite omitted). Accordingly, summary judgment
must be granted for Fuqua.
IT IS THEREFORE ORDERED:
1)
Defendant Fuqua’s motion for summary judgment is granted
(d/e 38).
2)
Defendant Dr. Baker’s motion for summary judgment is
denied (d/e 36), with leave to renew by February 28, 2013.
3)
The final pretrial conference is rescheduled to June 3, 2013 at
1:30 p.m.
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4)
The trial date is vacated, to be rescheduled at the final pretrial
conference.
ENTERED: 1/2/2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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