Chadwick v. Lochard et al
Filing
51
OPINION entered by Judge Joe Billy McDade on 8/1/16. IT IS ORDERED: The clerk is directed to correct the docket to reflect that Defendant "Carlott's" correct last name is Claussen. Defendants' motion for summary judgment is gr anted in part and denied in part 41 . Summary judgment is granted to Defendants Lochard and Claussen. Summary judgment is denied to Defendants Obaisi and Wexford Health Sources, Inc. This case is referred to Magistrate Judge Hawley for a settle ment conference. The final pretrial and trial will be scheduled if no settlement can be reached. The clerk is directed to notify Magistrate Judge Hawley of the referral of this case to him for a settlement conference. SEE FULL WRITTEN OPINION.(FDT, ilcd)
E-FILED
Monday, 01 August, 2016 03:48:07 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DEAN JEFFERY CHADWICK,
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Plaintiff,
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v.
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DR. HUGH LOCHARD, et al.,
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Defendants.
)
OPINION
14-CV-3190
JOE BILLY MCDADE, U.S. District Judge.
Plaintiff pursues an Eighth Amendment claim arising from an
alleged delay in diagnosing and treating his fractured knee, which
he injured when he slipped on ice while walking to the prison
cafeteria in Lincoln Correctional Center on January 29, 2014. After
Defendants filed a motion for summary judgment, the Court
recruited pro bono counsel for Plaintiff, and counsel has now filed a
response to the summary judgment motion.
For the reasons explained below, summary judgment will be
denied to Dr. Obaisi and Wexford Health Sources, Inc., and granted
to Dr. Lochard and Nurse Claussen.1
1
Defendant Carrie Claussen was incorrectly identified in the complaint as Carrie “Carlott.” According to the
summary judgment motion, Defendant Claussen’s prior last name was “Carlock” and current last name is Claussen.
Page 1 of 19
Summary Judgment Standard
"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." Fed. R. Civ. P.
56(a). A movant may demonstrate the absence of a material
dispute through specific cites to admissible evidence, or by showing
that the nonmovant “cannot produce admissible evidence to
support the [material] fact.” Fed. R. Civ. P. 56(c)(B). If the movant
clears this hurdle, the nonmovant may not simply rest on his or her
allegations in the complaint, but instead must point to admissible
evidence in the record to show that a genuine dispute exists. Id.;
Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011).
“In a § 1983 case, the plaintiff bears the burden of proof on the
constitutional deprivation that underlies the claim, and thus must
come forward with sufficient evidence to create genuine issues of
material fact to avoid summary judgment.” McAllister v. Price, 615
F.3d 877, 881 (7th Cir. 2010). At the summary judgment stage,
evidence is viewed in the light most favorable to the nonmovant,
with material factual disputes resolved in the nonmovant's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
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genuine dispute of material fact exists when a reasonable juror
could find for the nonmovant. Id.
Facts
Plaintiff’s claims arise from incidents which occurred during
Plaintiff’s incarceration in Lincoln Correctional Center in 2014,
where Defendants Dr. Obaisi and Dr. Lochard were working on a
“fill-in basis.” (Defs.’ Undisp. Facts 3, 4.) Plaintiff filed this case
from prison but has since been released.
On January 29, 2014, Plaintiff slipped on ice and twisted his
left leg while walking to the prison cafeteria. He was able to finish
his walk to the cafeteria but slipped a second time on his return
from the cafeteria, this time twisting both legs. He did not fall down
either time and was able to walk back to his housing unit. That
night, he walked to and from dinner, but with pain—he “knew
something was wrong.” (Pl.’s Dep. p. 35, d/e 41-1.)
On January 30, 2014, Plaintiff was having difficulty walking,
and an officer called a “code.” (Pl.’s Dep. p. 36, d/e 41-1.) Plaintiff
was transported to the prison infirmary in a wheelchair. The
medical record from that date states that Plaintiff complained of an
“inability to walk due to bilat[eral] foot wounds from boots.” The
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record also states that Plaintiff complained of right heel pain and
pain on the ball of his left foot. Two open wounds about ½
centimeter in diameter were noted on Plaintiff’s lower legs. The
record also states that Plaintiff walked from the nurses station to
the infirmary with a “limping and unsteady gait” but had walked to
the medicine line earlier with “only a slight limp.” (1/30/14
medical progress notes, d/e 41-4, pp. 4-5). A note from later that
date states that Plaintiff complained of “throbbing pain” to his right
ankle and the ball of his left foot. Edema was noted in both of
Plaintiff’s legs, ankles, and feet, and both lower extremities were
tender to the touch. Plaintiff was given Motrin and the medical
record states that an “MD” ordered Plaintiff to be kept in the
infirmary until seen by a doctor. (1/30/14 medical record, d/e 414, p. 4.)
The next morning (February 1) a nurse noted in the medical
record that Plaintiff’s gait was steady, and he had no edema or
complaints. The record further notes that Plaintiff stated he did not
want to be in the infirmary. A nurse note from a few hours later
stated that Plaintiff reported he was fine but he needed different
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footwear. Again Plaintiff was noted as walking with a steady gait.
(2/1/14 medical record, d/e 41-17, p. 2.)
Later that day (February 1) Defendant Dr. Lochard examined
Plaintiff. Dr. Lochard noted Plaintiff’s bilateral lower leg ulcers from
Plaintiff’s boots. The medical record reflects that Plaintiff informed
Dr. Lochard that one of Plaintiff’s friends would give Plaintiff his
gym shoes. Dr. Lochard prescribed Bactrim, ibuprofen, and
antibiotic ointment. He also prescribed a low bunk and slow walk
permit. (2/1/14 medical record, d/e 41-8, p.2.) Dr. Lochard
discharged Plaintiff from the infirmary that day and instructed that
a follow up be scheduled for February 12. Plaintiff returned to his
housing unit.
Dr. Lochard avers that at no point did Plaintiff complain of
knee pain during the February 1 visit. (Dr. Lochard Aff. para. 6.)
Plaintiff disputes this but his cites to the record do not support an
inference that Plaintiff complained of knee pain on February 1 or
before that date. However, Plaintiff did testify in his deposition that
Dr. Lochard asked Plaintiff to walk and told Plaintiff that “it’s
probably just a severe sprain and you need to walk and exercise.”
(Pl.’s Dep. p. 39.)
Page 5 of 19
On February 3, 2014, two days after Dr. Lochard discharged
Plaintiff from the infirmary, Plaintiff was readmitted to the infirmary
because he could not put weight on his legs. The nurse noted “right
leg +3 pitting edema” and left heel pain. Dr. Funk, who is not a
defendant, was notified. (2/3/14 medical record, d/e 41-10, p. 1.)2
Over the next two days Plaintiff stated he was unable to walk and
complained of left knee pain, left heel and foot pain, and right heel
pain. (2/4/14-2/5/14 medical records, d/e 41-18, pp. 2-5.) On
February 5, 2014, Plaintiff complained that he could not put weight
on his left knee and that he needed a wheelchair. The nurse noted
that Plaintiff’s right and left legs and feet were swollen. (1/5/14
medical record, d/e 41-18, pp. 6-9). The nurse note from February
7, 2014 states that Plaintiff was ambulating slowly and full weight
bearing. (1/7/14 medical record, d/e 41-19, p. 4.)
Dr. Obaisi examined Plaintiff on February 7, 2014. Plaintiff
told Dr. Obaisi that he was having difficulty walking and
complained of left knee and right heel pain. Dr. Obaisi found
Plaintiff’s left knee to be warm with mild tenderness and his right
knee to have mild swelling. Dr. Obaisi also noted two tender
2
The Court believes that Dr. Funk was the Medical Director at Lincoln Correctional Center based on Plaintiff’s
description of Dr. Funk’s job. (Pl.’s Dep. p. 53.)
Page 6 of 19
varicose veins in both lower legs. Dr. Obaisi’s assessment was
possible bursitis in Plaintiff’s left knee, tendonitis bursitis of the
right heel and varicose veins. Dr. Obaisi ordered x-rays of Plaintiff’s
left knee and right ankle and also ordered a uric acid test to check
for gout, as well as a comprehensive metabolic panel lab draw.
(2/7/14 medical record, d/e 41-19, p. 6.) Dr. Obaisi prescribed a
walker, two lidocaine injections, an anti-inflammatory, and ice.
Plaintiff remained in the infirmary, using the walker to
ambulate but walking slowly until February 12, 2016, when Dr.
Lochard discharged Plaintiff from the infirmary. On that date, Dr.
Lochard diagnosed Plaintiff with chronic musculoskeletal pain,
pending the x-ray results, and ordered Plaintiff to use the walker
indefinitely.
Defendants maintain that the walker allowed Plaintiff
to put little to no weight on his leg, but Plaintiff counters that he
was instructed to keep putting weight on his left leg throughout this
entire period. (Pl.’s Compl. p. 9)(“I told [Dr. Lochard something was
really wrong for I can hardly walk [and] he told me to use the walker
and walk it off.”)
X-rays of Plaintiff’s left knee were taken on February 13, 2014.
The x-rays showed that Plaintiff had an “acute proximal medial
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tibial plateau fracture.” (Dr. Olysav 5/22/14 report, d/e 41-25.)
The x-ray report stated that the joint space was maintained:
A fracture is noted involving the medial tibial plateau and
proximal tibia. The fracture abuts the articular surface
along the tibial tuberosities. The joint space is
maintained. No joint effusions are present. Mild soft
tissue swelling is noted.
(2/13/14 x-ray report, d/e 41-25, p. 5.)3
Dr. Obaisi reviewed the x-ray report the next day
(February 14) and ordered that Plaintiff be admitted to the
prison infirmary. Dr. Obaisi also began the process for
seeking a “collegial review” through Wexford Health Sources,
Inc., in order to obtain an orthopedic referral. (2/14/14
medical record, d/e 41-20, p. 2, 4.) Dr. Obaisi directed that
Plaintiff could engage in activity as tolerated, and Plaintiff was
directed to continue using the walker to ambulate. (2/14/14
medical record, d/e 41-20, p. 5). Dr. Obaisi saw Plaintiff the
next day (February 15), prescribing pain medicine and a knee
brace. February 15th was the last time Dr. Obaisi saw Plaintiff
3
The website for the American Academy of Orthopaedic Surgeons states with regard to proximal tibia fractures
and weight bearing: “Whether your fracture is treated with surgery or not, your doctor will most likely discourage
full weight bearing until some healing has occurred. This may require as much as 3 months or more of healing
before full weight bearing can be done safely. During this time, you will need crutches or a walker to move
around. You may also wear a knee brace for support.” http://orthoinfo.aaos.org (last visited 7/12/16).
Page 8 of 19
before Plaintiff’s consult with Dr. Olysav, an orthopedic
surgeon, on March 3, 2014.
Dr. Obaisi avers that he did not encourage Plaintiff to
walk on his left leg after the x-ray, but Plaintiff disputes this.
Plaintiff testified in his deposition that Dr. Obaisi was one of
the “circle of doctors” who treated Plaintiff both before and
after the x-ray like Plaintiff just had a “bad sprain” and needed
to “walk it off.” He testified that he was instructed to ambulate
even after the x-ray. (Pl.’s Dep. pp. 44, 52, 55, 59.) The
nurses also told Plaintiff to make sure he ambulated. (Pl.’s
Dep. 41-1, p. 51.)
Dr. Lochard saw Plaintiff on February 26, 2014, the first
time Dr. Lochard had seen Plaintiff after the x-ray results.
According to Plaintiff, Dr. Lochard apologized and said that he
never thought anything was broken. (Pl.’s Dep. p. 56.) Dr.
Lochard ordered a neoprene brace, crutches, and no weight
bearing. (1/26/2014 medical record, d/e 41-23, p. 2.)
Plaintiff maintains that, despite Dr. Lochard’s orders, he never
received the crutches or the brace and he was not provided
any way to avoid bearing weight on his left leg.
Page 9 of 19
On March 3, 2014, Plaintiff saw Dr. Olysav, an
orthopedic surgeon. Dr. Olysav’s report states that Plaintiff
presented as “full weight bearing with his walker.” Dr.
Olysav’s report goes on to state:
Since films that are given to us are on a CD, they are
reviewed and dated February 13, 2014, show an acuteappearing proximal tibial medial plateau fracture;
however, patient has been full weight bearing. Therefore,
x-rays are repeated and there is significant collapse of
the entire medial plateau, widening of the intercondylar
notch of the tibia. This is now a displaced and angulated
tibia apparent[ly] due to the patient’s full weight bearing.
I do not know what restrictions were placed on the
patient initially after injury or after the diagnosis made
with this x-ray.
He will, in order to prevent this from further varus and
nearly the impossibility of recreating the joint space even
with total knee arthroplasty because of the displacement,
our plans will be open reduction internal fixation of the
medial tibial plateau with bone graft. If this is, as the
patient indicates, the injury date of January 30, 1st x-ray
February 13, 1st evaluation March 3, this would then
require an osteotomy of the proximal medial tibia,
opening wedge, and then bone grafting with application
then of a plate and screws to maintain that position. He
would then be nonweightbearing postop. I will put him
in a cylinder case postoperatively.
Information is conveyed to the institution, correctional
center, and our response is that the patent will be seen
for a history and physical later on today so that surgery
could be done tomorrow, that is March 4, 2014, as an
outpatient.
Page 10 of 19
(Dr. Olysav March 2014 Report, d/e 41-25, p. 4.) Dr. Olysav
ordered that Plaintiff not bear weight. (3/3/14 medical record,
d/e 41-24, p. 1.) Plaintiff could not receive the surgery the
next day because, according to Plaintiff, Plaintiff’s blood tests
showed a low platelet count. (Compl. p. 1.) He eventually had
the surgery on July 8, 2014. (Dr. Olysav July 2014 report,
d/e 18, pp. 3-4; Pl. Dep. p. 45.)
Analysis
Deliberate indifference to an inmate’s serious medical needs
violates the Eighth Amendment. Gomez v. Randle, 680 F.3d 859,
865 (7th Cir. 2012). Defendants do not dispute that Plaintiff’s
injury was serious—Plaintiff fractured his knee and was
experiencing severe pain and difficulty walking.
The question is whether a rational jury could find that
Defendants were deliberately indifferent to that injury. Deliberate
indifference is more than malpractice. Deliberate indifference is the
conscious disregard of an excessive risk to an inmate’s health.
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). Deliberate
indifference arises when a doctor’s decisions are a “‘such a
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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.’”
Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2009)(quoted cite
omitted). Malpractice is not deliberate indifference, and there is no
malpractice claim before the Court. Norfleet v. Webster, 439 F.3d
392, 396 (7th Cir. 2006)(“even admitted medical malpractice does
not give rise to a constitutional violation.”).
Dr. Obaisi
There is no medical evidence in the record for a reasonable
jury to find that on February 7th, the first time Dr. Obaisi saw
Plaintiff, the existence of a fractured knee was obvious and should
have been diagnosed prior to the knee x-ray results on February
14th. Dr. Obaisi’s notes from February 7th reflect that he suspected
bursitis in Plaintiff’s left knee. Dr. Obaisi also ordered an x-ray on
this date, but that order suggests only that Dr. Obaisi was ruling
out a possible fracture, not that a fracture was obvious. Plaintiff
offers no evidence that Dr. Obaisi’s treatment decisions on February
7th were a substantial departure from accepted professional norms.
Page 12 of 19
However, a jury could reasonably find that Dr. Obaisi was
deliberately indifferent after he reviewed the x-ray results on July
14th. Dr. Obaisi does not explain why it took over two weeks from
the x-ray results to schedule Plaintiff for a consultation when Dr.
Obaisi knew by that time that Plaintiff had a fracture and had likely
been living with the fracture since January 30, 2014, when Plaintiff
was first admitted to the infirmary. Additionally, if Plaintiff’s
version is believed, Dr. Obaisi continued to instruct Plaintiff to bear
full weight on his left leg by prescribing a walker even after
receiving the x-ray results. Even a layperson can conclude from the
first x-ray and Dr. Olysav’s report that Plaintiff’s weight bearing
after July 14 caused significant damage to Plaintiff’s knee. In the
first x-ray, the joint space is maintained. Two ½ weeks later,
Plaintiff’s “entire medial plateau” had collapsed and Dr. Olysav
reported that “recreating” the joint space might be impossible. (Dr.
Olysav’s May 2014 report.) Dr. Olysav’s decision to schedule
surgery the day after seeing Plaintiff suggests that time was of the
essence.
Dr. Obaisi has evidence in his favor, but that evidence only
demonstrates that a disputed question of fact exists for the jury to
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decide. For example, the medical records do not appear to reflect
that Plaintiff ever told the medical professionals that he twisted his
knees. Plaintiff’s complaints at the beginning focused on his boots
and feet. Plaintiff was having swelling and problems with both legs,
not just one, and he appeared to have other medical conditions that
may have complicated the diagnosis. Plaintiff himself reported that
he “did not know what he did” to cause his difficulty walking
(2/4/14 nurse note, d/e 41-18, p. 2), and told the nurse on
February 1 that he was fine except for the boots. A rational juror
could find Dr. Obaisi was trying in good faith to find the cause of
Plaintiff’s problems and that he simply failed to appreciate the
extent of Plaintiff’s injury even after seeing the x-ray.
Dr. Lochard
This record would not support a jury verdict against Dr.
Lochard. When Dr. Lochard saw Plaintiff on February 1, Plaintiff’s
complaints were focused on Plaintiff’s boots and lower leg ulcers.
Plaintiff’s edema had improved by the time he saw Dr. Lochard, and
earlier that day Plaintiff had said he was fine and did not want to be
in the infirmary. As soon as Dr. Lochard became aware of the x-ray
results, Dr. Lochard ordered crutches and no weight bearing.
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Plaintiff asserts that he never received the crutches, but he offers
no evidence that Dr. Lochard knew this.
Dr. Lochard did release Plaintiff from the infirmary on
February 12 with the walker, despite knowing that x-rays had been
ordered. However, Plaintiff points to nothing in the record to
suggest that this treatment plan was inappropriate while awaiting
the x-ray results or that keeping Plaintiff in the infirmary was
medically required. The record is void of any medical evidence that
the existence of the fractured knee was obvious and should have
been diagnosed prior to the x-ray results on February 14th.
Nurse Claussen
A jury also could not reasonably find against Nurse Claussen
on this record. Nurse Claussen was the Director of Nursing at
Lincoln Correctional Center, responsible for supervising the nursing
staff. Nurse Claussen avers that she rarely provides direct medical
care to patients and directs the nurses to follow the doctor’s orders.
According to Plaintiff, Dr. Obaisi and Dr. Lochard told Plaintiff to
ambulate, so an inference arises that Nurse Claussen would have
echoed that direction.
Page 15 of 19
Nurses cannot blindly follow doctors’ directions if doing so
amounts to ignoring obvious risks. Perez v. Fenoglio, 792 F.3d 768,
779 (7th Cir. 2015)(“ While nurses may generally defer to
instructions given by physicians, they have an independent duty to
ensure that inmates receive constitutionally adequate care.”)(citing
Berry v. Peterman, 604 F.3d 435, 443 (7th Cir. 2010) and Rice ex rel
Rice v. Correctional Med. Servs., 675 F.3d 650, 682 (7th Cir. 2012).
However, there is no medical evidence in this record that Nurse
Claussen knew about and ignored any obvious risk by following the
doctors’ orders. Before the knee x-ray on July 14th, the cause of
Plaintiff’s knee problem was not obvious even to the doctors.
Further, Plaintiff offers no evidence that Nurse Claussen knew that
Dr. Obaisi’s instructions after the x-ray were blatantly
inappropriate. Plaintiff also points to no evidence that Nurse
Claussen was aware that Plaintiff did not receive his crutches as
directed by Dr. Lochard. In sum, Plaintiff has not pointed to any
admissible evidence which would support a jury verdict against
Nurse Claussen.
Page 16 of 19
Wexford Health Sources, Inc.
Wexford Health Sources, Inc. (Wexford) cannot be held liable
unless an unconstitutional policy or practice of Wexford caused the
constitutional deprivation, or a final policymaker at Wexford caused
the constitutional deprivation. Perez v. Fenoglio, 792 F.3d 768, 780
(7th Cir. 2015); Awalt v. Marketti, 74 F.Supp.3d 909, 933 (N.D. Ill.
2014).
Wexford argues that Plaintiff offers no evidence that a policy or
practice of Wexford caused the alleged deliberate indifference by
Defendants, who are Wexford employees. Plaintiff counters that a
“widespread unwritten practice” can be inferred that Wexford
“condoned ignoring Mr. Chadwick’s medical requests.”
Plaintiff has not offered any evidence that Wexford had any
unwritten practice of condoning or turning a blind eye to deliberate
indifference by their employees. However, the record is silent on
why the consultation took 2 ½ weeks after the x-ray. Dr. Obaisi
seems to imply that he was trying to obtain approval from Wexford
in a “collegial review” during this time. The record is silent on
Wexford’s procedure for obtaining approval for an outside consult
where an x-ray shows a fracture. What is required and how long
Page 17 of 19
does it take? Did a final policymaker from Wexford cause the
delay? This evidence is critical because the time between the x-ray
and the consult is arguably the time when Plaintiff experienced the
most damage to his knee. Summary judgment might be warranted
on a more developed factual record, but Wexford’s present motion
does not meet its burden on summary judgment.
Qualified Immunity
Defendants assert qualified immunity, but they do not address
cases which suggest that whether they can claim qualified
immunity does not appear to be settled in this Circuit. See
Maldonado v. Powers, Wexford, et al., 2014 WL 2926522 * (S.D. Ill.
2014)(report and recommending concluding that qualified immunity
not available to Wexford prison doctor)(citing Currie v. Chhabra,
728 F.3d 626, 632 (7th Cir. 2013) (not deciding question but finding
persuasive Sixth Circuit’s denial of qualified immunity to doctors
providing psychiatric services to prisoners.) In any event,
Defendants’ qualified immunity argument depends on accepting
their version of the facts and drawing inferences in their favor,
which the Court cannot do at the summary judgment stage.
IT IS THEREFORE ORDERED:
Page 18 of 19
1)
The clerk is directed to correct the docket to reflect that
Defendant “Carlott’s” correct last name is Claussen.
2)
Defendants’ motion for summary judgment is granted in
part and denied in part (41). Summary judgment is granted to
Defendants Lochard and Claussen. Summary judgment is denied
to Defendants Obaisi and Wexford Health Sources, Inc.
3)
This case is referred to Magistrate Judge Hawley for a
settlement conference. The final pretrial and trial will be scheduled
if no settlement can be reached.
4)
The clerk is directed to notify Magistrate Judge Hawley
of the referral of this case to him for a settlement conference.
ENTERED: 8/1/16
FOR THE COURT:
s/Joe Billy McDade
JOE BILLY MCDADE
UNITED STATES DISTRICT JUDGE
Page 19 of 19
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