Dean v. Wexford Health Source et al
Filing
138
ORDER denying Motions for Summary Judgment. Entered by Judge Sue E. Myerscough on 11/22/2019. (SG, ilcd)
E-FILED
Friday, 22 November, 2019 05:41:08 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
WILLIAM KENT DEAN,
Plaintiff,
v.
WEXFORD HEALTH SOURCES,
INC., et al.,
Defendants.
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17-CV-3112
ORDER
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.
Plaintiff, incarcerated in the Taylorville Correctional Center,
pursues claims arising from alleged delays in the diagnosis and
treatment of kidney cancer. Defendants move for summary
judgment on all but the medical malpractice claim against
Defendant Dr. Nawoor and the corresponding respondeat superior
claim against Defendant Wexford Health Sources, Inc.1
The motions for summary judgment are denied. While a
rational jury could find in Defendants’ favor, a rational jury would
not be compelled to do so.
1
The respondeat superior claim against Wexford corresponding to the federal claims has been dismissed.
11/16/18 text order.
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Discussion
The Court views the admissible evidence in the light most
favorable to Plaintiff, drawing reasonable inferences in Plaintiff’s
favor. The Court is not permitted to compare the strength of
competing reasonable inferences. Stokes v. Board of Educ. of the
City of Chicago, 599 F.3d 617 (7th Cir. 2010)(“In deciding a motion
for summary judgment, neither the district court nor this court may
assess the credibility of witnesses, choose between competing
reasonable inferences, or balance the relative weight of conflicting
evidence."). Defendants bear the burden of showing that no
disputed material fact exists for trial and that no reasonable juror
could find for Plaintiff. Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Bunch v. United States, 880
F.3d 938 (7th Cir. 2018)(movant must “‘demonstrate why the record
is so one-sided as to rule out the prospect of a finding in favor of
the non-movant ....’”)(quoted cite omitted).
The events occurred in the Taylorville Correctional Center
(Taylorville), where Plaintiff remains incarcerated. The parties agree
that on December 23, 2015, Plaintiff presented to Defendant Dr.
Nawoor (Taylorville’s Medical Director) with gross hematuria (visible
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blood in Plaintiff’s urine). Dr. Nawoor ordered a complete blood
count, urine strain (to check for kidney stones), and confirmed with
a urine dipstick that Plaintiff had blood in his urine. Plaintiff had a
history of kidney stones and treatment for kidney stones. Plaintiff
had also had CT scans of his abdomen and pelvis in August 2014
and July 2015. Defendants maintain that these tests were normal,
other than showing kidney stones, but one of Defendant’s experts
testified that the 2015 scan showed a mass in the upper pole of the
right kidney. (Racenstein Dep. p. 34.)
Plaintiff saw Defendant Dr. Einwohner (a Wexford
nephrologist) by video (telemedicine) on January 7, 2016. Plaintiff
reported painless hematuria for five days that had resolved. Dr.
Einwohner emailed a Wexford physician and asked for a “collegial
review” to consider “re-imaging and urology eval.” (Wexford Defs.’
Undisp. Fact 30.) Plaintiff maintains that “re-imaging” meant a CT
scan. Instead of a CT scan, Wexford approved an on-site renal and
bladder ultrasound. The ultrasound was done on February 2,
2016, which was inconclusive as to kidney stones and reported “no
mass lesions or evidence of hydronephrosis as to the right kidney.”
(Wexford Defs.’ Undisp. Facts 30, 58.) Plaintiff does not dispute
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that the radiologist reading the ultrasound “failed to recognize a
diffuse infiltrative process in the right kidney.” (Wexford Defs.’
Proposed Fact 57). One of Plaintiff’s experts testified that the
ordering physicians should read the ultrasound themselves, though
acknowledged that some do not. (Metwalli Dep. p. 60). Plaintiff
maintains that the unusually large right kidney reported on the
ultrasound called for an investigation into the cause of the size
differential between the kidneys, including cancer as a possible
cause. (Barnett Report p. 6; Racenstein Dep. p. 45).
A microscopic urinalysis ordered by Dr. Einwohner on
February 8, 2016 showed blood in Plaintiff’s urine. Dr. Nawoor
then contacted Dr. Ritz for a collegial review, and the two
determined that Plaintiff needed a urology referral and cystoscopy
to determine the cause of the blood in Plaintiff’s urine. (Wexford
Defs.’ Undisp. Fact 69.) Plaintiff saw an off-site urologist, Dr.
Severino, on March 10, 2016. Medical records state that Dr.
Nawoor tried to obtain an earlier appointment by contacting the offsite clinic. (Wexford Defs.’ Undisp. Facts 80-82.)
On March 10, 2016, Dr. Severino ordered a CT scan and a
cystoscopy. Dr. Nawoor approved this plan four days later.
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Wexford’s “Utilization Management Department” approved the
cystoscopy on March 22 and approved the CT on March 30, 2016.
Plaintiff had the CT scan on April 12, 2016. The CT “showed
cancer in the right kidney with potential invasion of the vena cava,
which is the main vein of the entire body that drains blood back to
the heart.” (Wexford Defs.’ Undisp. Fact 99.) Through Wexford’s
review process, the surgery was approved on April 21, 2016; a
cardiac consultation for the surgery was approved on May 5, 2016;
and, and a consultation with a cardiothoracic surgeon was
approved on June 14, 2016. Plaintiff had the surgery on July 19,
2016 which took many hours and required three surgeons.
On August 18, 2016, Dr. Nawoor obtained approval through
the collegial review for an off-site oncology evaluation. On October
19, 2016, Plaintiff was prescribed a cancer medication (Votrient)
which had to be approved through Wexford’s pharmacy review
process. Plaintiff began receiving Votrient on November 18, 2016.
On March 2, 2017, Plaintiff was prescribed Opdivo, which was
approved on March 20, 2017 through Wexford’s pharmacy review
process. Throughout this time, Defendant Galvin was a registered
nurse acting as the Director of Nursing at Taylorville, and
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Defendant Mincy was the Health Care Unit Administrator at
Taylorville.
Plaintiff’s expert, Dr. Barnett, opines that the above time-line
for diagnosis and treatment was rife with unnecessary delays that
taken together caused harm to Plaintiff: “[M]ore likely than not, Mr.
Dean’s cancer was contained within his kidney on December 23,
2015 and thus curable without the extended chemotherapy he is
currently receiving, as it is indubitable that his cancer did grow and
spread during 7 months until the cancer was removed.” (Barnett
Report p. 23.) Plaintiff does not appear to dispute that the delay in
the actual scheduling of the surgery was in large part attributable
to the surgeons’ challenge in coordinating their own schedules and
preparing for the complicated surgery. However, Plaintiff maintains
that the delays that were attributable to Defendants allowed
Plaintiff’s cancer to progress, which in turn increased the
complexity of the surgery and caused the difficulty in scheduling
the surgery.
This case, then, is primarily about delays—whether there were
unnecessary delays attributable to Defendants, and, if so, whether
those delays, separately or taken together, caused Plaintiff harm.
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The parties vigorously dispute these issues with cites to admissible
evidence, which demonstrates the need for a trial. The Court will
not wade into each dispute to weigh the strength of the inferences;
that is the jury’s job. The focus of the Court’s inquiry is whether a
reasonable juror could find in Plaintiff’s favor.
Addressing the Eighth Amendment claims first, a reasonable
juror could conclude that Wexford’s policies and practices were
deliberately indifferent to inmates like Plaintiff with potentially lifethreatening illnesses and the need for fast diagnosis and treatment.
According to Plaintiff, gross hematuria presents a 40-50% risk of
malignancy, and painless hematuria like Plaintiff’s is more
suggestive of malignancy than hematuria with pain. (Barnett
Report p. 17.) A reasonable juror could find that the practices and
procedures regarding off-site care and the implementation of off-site
recommendations are simply not designed for a nimble response to
urgent needs. Drawing inferences in Plaintiff’s favor, the individual
Defendants knew this from their experience with those procedures.
A reasonable juror could draw an inference of deliberate
indifference from the absence of fast-track procedures for
diagnosing and treating urgent, life-threatening medical conditions.
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See Daniel v. Cook County, 833 F.3d 728, 734 (7th Cir. 2016)(“An
unconstitutional policy can include both implicit policies as well as
a gap in expressed policies.”); Jones v. City of Chicago, 787 F.2d
200 (7th Cir. 1986)(“in situations that call for procedures, rules or
regulations, the failure to make policy itself may be actionable.”).
For example, a reasonable juror might wonder why any review
process was necessary at all to implement Dr. Severino’s
recommendations and prescriptions, once the referral to Dr.
Severino was approved. Dr. Severino’s orders were standard and
expected, looking at the record in Plaintiff’s favor.
A reasonable juror could also agree with Plaintiff that the
standard of care for Plaintiff was to bypass the ultrasound and go
straight to obtaining a CT with contrast and a cystoscopy,
regardless of Plaintiff’s history for kidney stones. The ultrasound,
while not outside the standard of care for all patients with
hematuria, was arguably too risky for Plaintiff because Plaintiff had
been experiencing intermittent, painless, gross hematuria for
months before the ultrasound was even ordered. (Dhar Dep. p.
124.) According to Plaintiff, an ultrasound would not have ruled
out cancer as the cause of the hematuria and so only delayed the
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CT, which would have been necessary regardless of what the
ultrasound showed. A reasonable juror could find that the decision
to order the ultrasound instead of a CT scan in February 2016 was
primarily driven by concern over costs rather than an exercise of
professional judgment.
A reasonable juror could also agree with Plaintiff that the
delays attributable to Defendants caused Plaintiff’s condition to
worsen, making the surgery more complex and difficult to schedule.
As to after the surgery, Defendants argue that the delays in
providing the prescribed chemotherapy caused no harm, but Dr.
Barnett maintains that those drugs may not have even been
necessary (or less so) if Plaintiff had received surgery sooner.
The cases cited by the Wexford Defendants, Duckworth v.
Ahmad, 532 F.3d 675, 677 (7th Cir. 2008) and Whiting v. Wexford
Health Sources, Inc., 839 F.3d 658 (7th Cir. 2016), are
distinguishable.
Duckworth involved an inmate with gross hematuria who was
not diagnosed with bladder cancer for 16 months. However, one of
the defendants in Duckworth mistakenly believed that the inmate
was already being treated by a urologist and ordered tests when
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learning otherwise. The other defendant in Duckworth ordered
several urine tests that did not show hematuria. In this case, no
one mistakenly believed that Plaintiff was seeing a urologist, and
the urine tests showed either gross or microscopic hematuria. In
Duckworth, no defendant “actually ‘drew the inference’ that the
[inmate’s] symptoms posed a serious medical risk.” 532 F.3d at
630. In this case, a reasonable juror could infer that Defendants
suspected the cancer risk was significant from the start. According
to Plaintiff, Defendant Dr. Nawoor acknowledged when Plaintiff first
presented with gross hematuria that Plaintiff either had kidney
stones or cancer.
In the other case cited by Defendants, Whiting, a prison doctor
took two months to diagnose an inmate with non-Hodgkins
lymphoma. In Whiting, “no expert testified that Dr. David’s chosen
course of [initial] treatment was a substantial departure from
accepted medical judgment . . . .” 839 F.3d at Here, Plaintiff does
have that expert testimony.
The Defendants who are nurses (Galvin and Mincy) argue that
they were not directly involved in Plaintiff’s care and reasonably
relied on Dr. Nawoor and Dr. Einwohner to make the treatment
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decisions. A reasonable juror could agree. On the other hand, a
reasonable juror could find that both nurses had the medical
training to know that gross hematuria is a sign of cancer, and that
processing Plaintiff’s medical care through Wexford’s standard
procedures for off-site care put Plaintiff at a substantial risk of
serious harm. A reasonable juror could conclude that Defendants
Mincy and Galvin, who both held supervisory positions, had the
authority to intervene in some fashion to reduce the delays. See,
e.g., Perez v. Fenoglio, 792 F.3d 768 (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.”); Holloway v. Delaware County Sheriff, 700 F.3d
1063, 1075 (7th Cir. 2012)(nurse’s deference “‘may not be blind or
unthinking, particularly if it is apparent that the physician's order
will likely harm the patient.’”)(quoting Berry v. Peterman, 604 F.3d
435, 443 (7th Cir. 2010)).
Defendant Mincy asserts qualified immunity. She is the only
Defendant who might have qualified immunity because she is the
only Defendant employed by the Illinois Department of Corrections.
The Court must determine “‘(1) whether the facts, taken in the light
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most favorable to the plaintiff[ ], show that the defendants violated a
constitutional right; and (2) whether that constitutional right was
clearly established at the time of the alleged violation.’” Campbell v.
Kallas, 936 F.3d 526, 545 (7th Cir. 2019)(quoted cite omitted).
“Qualified immunity applies unless the specific contours of the right
‘were sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was violating it.’”
Id. (quoted cite omitted).
Defendant Mincy was the Health Care Administrator and is a
registered nurse. Drawing reasonable factual inferences in
Plaintiff’s favor, Defendant Mincy knew, from her training as a
registered nurse, that Plaintiff’s prolonged hematuria carried a
substantial risk of cancer. As a registered nurse she also knew
(drawing inferences in Plaintiff’s favor) that the failure to promptly
treat Plaintiff’s kidney cancer once diagnosed put Plaintiff at a
substantial risk of serious harm from cancer metastasis. A
reasonable juror could find that Defendant Mincy knew from her
experience as a health care administrator that the decisions of the
Wexford doctors and nurses to process Plaintiff’s care through the
standard Wexford procedures would cause dangerous delays in
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both diagnosis and treatment. Defendant Mincy did ask questions
and raise concerns, but a reasonable juror could also find that she
had the authority to take action given her authority to monitor the
Wexford doctors and nurses and report concerns to IDOC officials.
Further, Defendant Mincy was part of Plaintiff’s health care team,
and disputed material facts exist regarding each team member’s
authority and role.
Defendant Mincy argues that denying qualified immunity will
mean that a non-treating administrator can “no longer rely upon
the decision of a treating medical professional[] and would need to
assume the duties of providing medical care outside the scope of
her expertise and abilities.” (d/e 101, p. 13.) However, Defendant
Mincy’s medical training as a registered nurse sets her apart from
an administrator with no medical training. Her medical training
enabled her to identify obvious health risks that a layperson could
not. See Perez, 792 F.3d at 779 (nurse has independent duty to
ensure that inmates receive constitutionally adequate care); Berry,
604 F.3d at 442 (“Although a medical care system requires nurses
to defer to treating physicians' instructions and orders in most
situations, that deference may not be blind or unthinking, . . . .”).
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Turning to the malpractice claims, Defendants Nurse Galvin
and nephrologist Dr. Einwohner argue that Plaintiff has not
proffered an expert licensed in their respective medical fields.
Sullivan v. Edward Hosp., 209 Ill.2d 100 (2004)(foundational
requirements for expert opinion are (1) “expert must be a licensed
member of the school of medicine about which he proposes to
testify; and, (2) expert must be “familiar with methods, procedures,
and treatments ordinarily observed . . . .”).
Dr. Barnett has a medical license, not a nurse’s license, but
that does not preclude Dr. Barnett from offering opinions based on
his experience in correctional medicine about the role a prison
health care administrator plays in the provision of health care for
inmates. Dr. Barnett opines that Nurse Galvin (the Director of
Nursing) was “negligent in providing inadequate oversight of the
care provided to Mr. Dean . . . and displayed deliberate indifference
to Mr. Dean’s medical condition by failing to promote timely and
efficacious treatment for Mr. Dean’s persistent grossly bloody urine
despite express knowledge of Mr. Dean’s high risk of injury from
cancer.” (Barnett Report p. 9.) Dr. Barnett is not opining on
nursing procedures like the doctor in Sullivan but instead on
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correctional standards in the delivery of healthcare to inmates and
the role each healthcare team member plays. See Petryshyn
v. Slotky, 387 Ill.App.3d 1112 (4th Dist. 2008)(physician could
testify about “responsibilities of the individual surgical team
members,” including the nurses); Petre v. Cardiovascular
Consultants, 373 Ill.App.3d 929, 941 (1st Dist. 2007)(foundational
licensing requirement inapplicable where “allegations of negligence
concern communications between members of different schools of
medicine acting as part of the same team.”).
As to Dr. Einwohner, the nephrologist, both Dr. Barnett and
Dr. Einwohner are licensed medical doctors, which satisfies the
licensing requirement. Dr. Barnett does not need to be a
nephrologist to satisfy the licensing requirement. Jones v. O’Young,
154 Ill.2d 39 (1992)(plaintiff’s physician expert need not practice in
the same specialty as defendant physicians); Russo v. Corey Steel
Co., 125 N.E.3d 1036 (1st Dist.)(2018)(physician was qualified to
testify as to likelihood of needing future hip surgery even though
physician was not orthopedic surgeon).
In sum, the parties have all done a good job of pointing out the
weaknesses in each other’s claims and defenses, but those
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arguments belong in front of the jury. Disputed issues of material
fact remain for the jury’s determination.
IT IS ORDERED that Defendants’ motions for summary
judgment are denied. [100, 101].
IT IS FURTHER ORDERED that Plaintiff’s counsel has
called chambers to ask whether Plaintiff will be returned to
Taylorville Correctional Center each day of the trial and the
procedure for ensuring that Plaintiff receives his medicines
during the trial. Defense counsel should be prepared to discuss
these issues at the final pretrial conference.
ENTERED:
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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