Walker v. Wexfor Health Sources et al
MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 8/11/2017:Mailed notice(rth, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
GEORGE WALKER, N-53228,
WEXFORD HEALTH SOURCES, INC.,
DR. SALEH OBAISI, and WARDEN LEMKE,
Case No. 13-cv-7237
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Plaintiff George Walker filed a pro se Complaint, alleging that defendants Wexford Health
Sources, Inc., Dr. Saleh Obaisi, and Warden Michael Lemke were deliberately indifferent to Walker’s
serious medical needs following surgery. 1 This Court recruited counsel to represent Walker, who
filed the Second Amended Complaint on his behalf, alleging deliberate indifference based on a
failure to provide adequate follow-up care to treat a worsening condition after spinal surgery in
March 2011. Defendants, Wexford Health Sources, Inc. and Dr. Saleh Obaisi, move for summary
judgment , arguing that Walker failed to exhaust his administrative remedies and the undisputed
facts demonstrate that the defendants were not deliberately indifferent to Walker’s serious medical
needs. After careful consideration of the parties’ written and oral arguments, this Court grants the
The following facts are undisputed for purposes of deciding this motion. Plaintiff, George
Walker, is a 52-year-old inmate at Stateville Correctional Center. (Dkt. 135, Pl.’s Resp. to Defs.’ L.R.
56.1 Statement of Undisputed Facts at ¶ 6). Defendant, Wexford Health Sources, Inc. (“Wexford”)
Warden Michael Lemke was dismissed from the case by agreement of the parties on March 6, 2017.
is a corporate subcontractor for the State of Illinois, providing healthcare services to inmates at
Illinois Department of Corrections (“IDOC”) facilities. Defendant, Saleh Obaisi, M.D., is Stateville’s
Medical Director and an employee of defendant Wexford. (Id. at ¶ 7). He received his medical
degree in 1960. Dr. Obaisi is trained in general surgery and is board certified in urgent care medicine.
He also serves as a Fellow to the Royal College of Surgeons. He began working for Wexford in
2002, serving at various IDOC prisons before becoming Medical Director at Stateville in August
Stateville operates a Health Care Unit on-site that provides inmates with multiple medical
services. (Id. at ¶ 14). The Health Care Unit has an urgent care facility, various medical clinics, and an
infirmary. Pursuant to its contract with IDOC, Wexford physicians, nurse practitioners, and
physician’s assistants are Wexford employees. (Id. at ¶ 15).
Medical providers at Stateville follow the IDOC administrative procedures for treating
inmates. (Id. at ¶ 16). Wexford also has general treatment guidelines for its employees. Stateville’s
Medical Director is authorized to make non-preapproved referrals to St. Joseph Medical Center if an
inmate is suffering from an emergency medical condition. (Id. at ¶ 17). All other referrals must go
through a physician staffed collegial peer review process that Wexford refers to as UM. Outside
referrals are sent to the University of Illinois at Chicago Medical Center (“UIC”). IDOC developed
the process to order a non-emergency consultation at UIC. The stated goal of the UM procedure is
to eliminate improper referrals and make sure that the inmate receives the right medical treatment.
(Id. at ¶ 17).
During a UM review, the inmate’s case is discussed with the on-site medical director and a
team of other physicians including Wexford’s UM Director for Illinois, Wexford’s Corporate UM
nurse, and other staff and physicians from varying medical specialties, as may be needed. (Id. at ¶
18). Typically, the IDOC’s healthcare unit administrator also participates in the UM. The collegial
review takes place during a once-weekly telephone conference call. Following the discussion, the
physicians at the review either approve the suggested treatment or approve an alternative treatment
plan. (Id. at ¶ 19). Dr. Obaisi testified that if he was ever dissatisfied with the alternative treatment
plan for a patient, he was able to appeal that decision. (Id.).
If the UM review approves a UIC consultation, then the UM department enters the
information into a Wexford computer program called WexCare, that then sends an electronic copy
of that notice to the prison and another electronic copy directly to UIC. (Id. at ¶ 20). Once
approved, Wexford does not schedule the actual UIC appointment. Appointments are coordinated
by UIC and IDOC staff members. The timing of appointments at UIC is entirely at UIC’s
discretion. Authorizations are valid for 90 days after UM approval. (Id.). For surgery referrals,
Wexford usually issues a “Global approval,” providing approval for both the surgery and any followup care needed after the surgery. Dr. Obaisi testified that when follow-up care is included as part of
a global approval, UIC will call Stateville directly to set up the follow-up with the patient. (Id. at ¶
Walker’s treatment prior to August 2012:
On March 1, 2010, a Wexford Physician’s Assistant at Stateville performed a physical
examination of Walker and noted that he had right leg twitching and reports of weakness. (Id. at ¶
24). The treatment plan was to run bloodwork and discuss his condition with the on-site Medical
Director. On March 17, 2010, Wexford approved sending Walker to UIC for an EMG/Nerve
Conduction study of his extremities. (Id.).
On May 11, 2010, the EMG study suggested myeloradiculopathy in Walker’s right leg and
UIC recommended further study. (Id. at ¶ 25). On May 18, 2010, Wexford’s Stateville Medical
Director requested a referral for further UIC neurology consultation, which was approved and an
appointment scheduled for January 5, 2011. (Id.). On October 12, 2010, Wexford’s Stateville Medical
Director gave Walker a medical permit allowing him to have a low bunk, low gallery (first floor) cell,
and special cuffs in order to reduce his pain complaints. (Id. at ¶ 26).
On January 5, 2011, Walker was sent for his approved appointment at UIC for a
neurological consultation with Dr. Zeidman. (Id. at ¶ 27). Dr. Zeidman testified that Walker had a
history of one-year of back pain radiating to the right leg, and a foot drop in his right leg. 2 The May
2010 EMG showed radiculopathy and a prior MRI showed disc bulges at several levels, possible
narrowing of the cervical spinal canal, which Dr. Zeidman thought was a possible pinched nerve,
but he noted no other neurologic dysfunction. Dr. Zeidman recommended another MRI, physical
therapy, re-check of blood levels, and consultation with neurosurgery depending on the results of
the repeat MRI. (Id. at ¶ 27).
On February 7, 2011, Wexford’s on-site Medical Director referred Walker to UIC’s pain
clinic. (Id. at ¶ 28). Walker went to UIC’s pain clinic on February 8, 2011, where personnel noted a
foot drop and radiculopathy, prescribed pain medication and recommended a neurosurgery referral.
On February 16, 2011, Walker had an MRI that showed some degenerative arthritis, but no spinal
cord signal change, and no change from his prior MRI. Dr. Zeidman recommended referring Walker
to a neurosurgeon. (Id. at ¶ 29).
On March 11, 2011, Dr. Neckrysh, a neurosurgeon at UIC, examined Walker. (Id. at ¶ 30).
Dr. Neckrysh recommended “TLIF” spinal surgery to decompress and fuse the lumbar spine.
Wexford conducted a UM peer review and gave “global” approval for the surgery and follow-up
care. (Id. at ¶ 30). On March 23, 2011, Walker underwent spinal surgery at UIC where he remained
an inpatient until March 26, 2011. (Id. at ¶ 31). Upon his return to Stateville, Walker was admitted to
the infirmary, where he was tended to by multiple doctors. (Id. at ¶ 31).
2 Plaintiff disputes that he was experiencing pain for the year preceding his consultation with Dr. Zeidman. To support
his contention that he did not have back pain, plaintiff refers to testimony from Dr. Davison that did not include back
pain as the reason Walker had surgery in March 2011.
Between March 26, 2011, and March 29, 2011, five medical notes confirm that Walker’s
surgical incision was healing well without signs or symptoms of infection. (Id. at ¶ 32). On April 7,
2011, Walker’s surgical staples were removed, the incision site was cleaned, and no signs or
symptoms of redness or infection were noted. Later that day, he was discharged from Stateville’s
infirmary with minimal discomfort noted, given permits for low bunk, low gallery, and special
medical restraints. (Id. at ¶ 32). It is undisputed that UIC could have requested a post-operative
follow-up appointment, if Dr. Neckrysh thought it was necessary. (Id. at ¶ 34).
On April 28, 2011, Walker reported significant resolution of his pain during an examination
at Stateville. (Id. at ¶ 36). That same day, the physical therapist noted that Walker’s surgical scar was
well-healed with minor adhesion. Walker completed two eight week courses of physical therapy with
an on-site physical therapist at Stateville. (Id. at ¶ 37). Although the physical therapist left Stateville,
he provided Walker with a Home Exercise Program, consisting of exercises that the inmate could
perform in his cell every day. (Id.). Walker testified that he followed the physical therapist’s
instructions and that he completed a total of approximately sixteen months of physical therapy. (Id.).
Between May 26, 2011, and August 31, 2012, Walker saw Stateville medical providers on eight
different occasions reporting improvement to his back following the surgery. (Id. at ¶ 36).
Walker’s treatment after August 2012:
Dr. Obaisi became Medical Director for Wexford at Stateville in August 2012. He first
examined Walker on September 26, 2012. (Id. at ¶ 38). Dr. Obaisi noted that Walker was
complaining of an unsteady gait, weakness in his legs, upper thigh pain, and bilateral foot drop. Dr.
Obaisi considered that Walker might have an upper neuron syndrome rather than a muscle disorder
because Walker’s lab work showed elevated blood enzymes consistent with muscle fatigue. (Id. at ¶
38). Dr. Obaisi also ordered x-rays and provided muscle relaxers and anti-inflammatory medication.
He chose to wait for the results from some initial tests before presenting Walker’s situation for UM
peer review and outside consultation. (Id. at ¶ 39). When the results from one of the blood tests
were elevated, Dr. Obaisi referred Walker for UM review to approve a neurology consultation at
UIC. (Id. at ¶ 36). Wexford approved the referral on December 2, 2012, but UIC did not schedule a
neurology appointment until April 24, 2013. (Id. at ¶ 40).
Between his surgery in March 2011 and Wexford’s approval of a UIC neurology consultation
on December 2, 2012, Stateville medical providers saw Walker thirty times. (Id. at ¶ 41) Seven of the
thirty medical consultations were with Stateville’s on-site medical director. (Id.). Dr. Obaisi again
examined Walker on April 9, 2013, for right leg edema that had lasted two weeks. Dr. Obaisi sent
Walker to St. Joseph Hospital in Joliet, Illinois, because he was concerned that Walker was
developing deep vein thrombosis (“DVT”). (Id. at ¶ 42). Emergency medical personnel performed
Doppler testing to rule out DVT. (Id.).
On April 24, 2013, Walker was sent to UIC for his scheduled appointment with neurologist
Dr. Zeidman. (Id. at ¶ 43). Walker advised Dr. Zeidman that his back was not bothering him much,
but that his legs were still bothering him, and he was having bilateral groin pain. (Id. at ¶ 43). Walker
refused any pain medication. Dr. Zeidman noted that Dr. Obaisi referred Walker for an evaluation
of a possible motor neuron disease based on the elevated bloodwork. Dr. Zeidman ordered a repeat
MRI and other imaging tests to check for myelopathy based on the elevated blood tests, and a
referral for neurosurgery. (Id. at ¶ 43).
On May 14, 2013, Walker had an EMG study. (Id. at ¶ 44). On May 23, 2013, Walker had an
MRI of the lumbar spine, which showed some degenerative changes at the L3-L4 disc. With
Wexford’s approval, Dr. Obaisi referred Walker for a neurosurgery consultation at UIC. (Id. at ¶ 44).
On September 25, 2013, Walker had a follow-up appointment with Dr. Zeidman at UIC. Walker
complained of radiculopathy and was now in a wheelchair. Dr. Zeidman noted that tests showed a
possible loose screw at S1 vertebrae. Dr. Zeidman recommended re-referral to the neurosurgery
team to consult on the loose screw and another MRI of the cervical and thoracic spine because
Walker was showing brisk reflexes in his ankles, which was a new development. (Id. at ¶ 45).
On March 27, 2014, Walker returned to UIC’s neurology department for follow-up on Dr.
Obaisi’s referral. (Id. at ¶ 46). Dr. Zeidman noted that Walker reported feeling that he was not
receiving enough physical therapy. Dr. Zeidman also reported that the MRI was done but the images
had not been sent. On that date, Dr. Zeidman noted that Walker was receiving 300 mg Gabapentin
for pain twice a day and showing some improvement. (Id.).
On October 20, 2014, Walker had another MRI of his cervical spine, which showed
degenerative joint disease among other findings. (Id. at ¶ 47). Ten days later Dr. Obaisi referred
Walker to the UIC pain clinic for treatment for his back and legs. The UIC pain specialist noted that
Walker was not taking daily medication, having independently ceased taking all of his pain
medications (Gabapentin and Vicodin) because they were making him constipated. (Id. at ¶ 48). The
pain clinic encouraged Walker to resume taking his pain medication and noted that they would
consider a possible epidural steroid injection if surgery was not ordered by the neurosurgery
department. (Id. at ¶ 48). Walker had another MRI on November 6, 2014, this time of his thoracic
spine. (Id. at ¶ 49). When compared to the MRI of his thoracic spine taken before the 2011 surgery,
there was a similar appearance of mild multilevel degenerative disc disease. (Id. at ¶ 49).
On January 8, 2015, Dr. Obaisi referred Walker to UIC neurology for more follow-up care.
Walker reported that he had ongoing back pain on his left side, was doing physical therapy once per
week, and a change in his medications was helping his pain. (Id. at ¶ 50). At that time, Walker was
exhibiting slurred speech and hand and finger jerking. Dr. Zeidman referred Walker to neurosurgery
and recommended an MRI of the brain in order to evaluate these new symptoms. In the meantime,
Dr. Zeidman ordered Walker to continue physical therapy and taking his medication. (Id. at ¶ 51).
On February 3, 2015, Walker was sent to UIC for an appointment with neurosurgery. (Id. at
¶ 52). The neurosurgeon found that Walker had radiculopathy in his left leg and recommended a CT
myelogram to delineate any possible neurosurgical issues at the lumbar spine, which was done on
May 28, 2015. (Id.). On March 27, 2015, Walker had an MRI of his brain that showed non-specific
scattered flare changes in the brain, but was otherwise unremarkable and showed no acute or
subacute stroke. (Id. at ¶ 53).
Walker next saw Dr. Zeidman at UIC on July 1, 2015. He noted no sign of stroke, but
observed that Walker was demonstrating problems with “word-finding”. (Id. at ¶ 54). Dr. Zeidman
recommended another neurosurgical follow-up, a speech therapy consultation, and to continue pain
medications and physical therapy at Stateville. (Id.).
On August 11, 2015, Walker had another x-ray at UIC, which showed “no definitive
evidence for hardware malfunction”. (Id. at ¶ 55). That same day, Walker had a consultation with
UIC’s neurosurgery service who advised that the myelogram indicated that Walker had some
adjacent segment degeneration at L3-4 and a grade 1 spine at L3-4. Neurosurgery advised that they
could extend his fusion up to the L3-4 level. (Id.).
Walker next returned to UIC neurosurgery on December 22, 2015, when the neurosurgeon
who conducted the consultation confirmed that the original 2011 surgery was effective. (Id. at ¶ 56).
The neurosurgery service recommended a revision and extension of the original 2011 spinal fusion
to correct the new issues. Wexford approved the second surgery on January 7, 2016. (Id. at ¶ 56).
Walker underwent the surgery at UIC on March 30, 2016. (Id. at ¶ 57).
While Walker was still at UIC following his second spinal surgery, UIC’s medical staff
diagnosed Walker with primary lateral sclerosis (“PLS”). (Id. at ¶ 58). PLS is a motor neuron disease
that causes muscle nerve cells to slowly break down, resulting in weakness in the voluntary muscles
that is similar to the more commonly known amyotrophic lateral sclerosis (“ALS”). (Id.). UIC speech
and psychology staff also consulted with Walker following the diagnosis. (Id.). Walker makes no
allegations against UIC.
Dr. Nicholas Rizzo testified as plaintiff’s expert. He is board certified in internal medicine.
He provided the following opinions:
1) Wexford failed to follow the order for a three month post-operative follow-up with the UIC
neurosurgeon after Walker’s March 23, 2011, surgery.
2) Dr. Obaisi also failed to follow the post-operative order for a follow-up appointment,
though Dr. Rizzo acknowledged that Dr. Obaisi was not at Stateville until more than a year
after Walker’s surgery.
3) Walker’s condition deteriorated as a result of not being seen by the neurosurgeon for two
years following his March 2011 surgery.
4) There was a lack of routine physical therapy.
5) Walker suffered additional pain as a result of not being treated in an appropriate and timely
6) Wexford’s medical director at Stateville should have ensured that Walker received timely and
7) Wexford should have had a procedure in place to ensure that orders for follow-up care are
Walker admits that he was informed of the grievance process and had the Stateville inmate
handbook. (Id. at ¶ 75). Walker also admits that he did not file a grievance with Stateville to
complain about Wexford medical personnel not sending him back to UIC for a post-surgical followup until sixteen months after his March 2011 surgery. (Id. at ¶ 74). Walker filed two grievances
relating to his medical care; one on April 1, 2013, and one on April 20, 2013. (Id. at ¶ 78-9). Warden
Lemke testified that the April 1, 2013, grievance was returned to Walker as a non-emergency and
directed Walker to follow the standard grievance procedures. (Dkt. 124-1, Ex. D at 23:16-24:4). The
Administrative Review Board returned both grievances with the box checked requesting additional
information. (See Dkt. 136-1, Ex. J, and Dkt. 136-2, Ex. K).
Summary judgment is proper when “the admissible evidence shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of
law.”McGreal v. Vill. of Orland Park, 850 F.3d 308, 312 (7th Cir. 2017), reh'g denied (Mar. 27, 2017)
(quoting Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791 (7th Cir. 2014)); Fed. R. Civ. P. 56(a). In
deciding whether summary judgment is appropriate, this Court accepts the nonmoving party’s
evidence as true and draw all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 244, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
Defendants move for summary judgment, arguing that Walker failed to exhaust his
administrative remedies and, even if he had, the undisputed facts demonstrate that Dr. Obaisi and
Wexford were not deliberately indifferent to Walker’s serious medical need. This Court will first
address the exhaustion issue.
1. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act, 42 U.S.C. §1997(e), includes a strict mandatory
exhaustion requirement that disallows any lawsuit brought by a prisoner confined in any jail, prison,
or other correctional facility that deals with prison conditions under 42 U.S.C. §1983 or any other
federal law, if the prisoner failed to exhaust any administrative remedies and comply with a facility’s
procedural rules, including deadlines. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). A
prisoner will be barred from pursuing a civil action in federal court if his claims have not been
exhausted by following the grievance procedure. Id.
In Illinois, the standard procedure for prisoners to file grievances requires the submission of
a grievance form to their institutional counselor within sixty days after the discovery of the incident,
occurrence or problem that gives rise to the grievance. Ill. Admin. Code tit. 20, § 504.810(a). If the
inmate is not satisfied with the response to his grievance, he has thirty days from receiving the
response to file an appeal with the Administrative Review Board. Ill. Admin. Code tit. 20, §
Here, Walker complains that he was not sent for his three month follow-up with a UIC
neurosurgeon following his March 2011 surgery. Defendants contend that for this claim to be
properly before this Court, Walker would have had to submit a grievance within sixty days of June
2011. It is undisputed that Walker’s first grievance regarding his medical care was not submitted to
prison officials until April 1, 2013. Walker concedes that he did not comply with the standard
grievance procedure by submitting his grievance within 60 days of discovering his injury, but argues
that he did comply with the emergency procedures.
The emergency procedures allow an inmate to submit his grievance directly to the Chief
Administrative Officer; in this case Warden Michael Lemke. Ill. Admin. Code tit. 20, § 504.840. “If
there is a substantial risk of imminent personal injury or other serious or irreparable harm to the
offender, the grievance shall be handled on an emergency basis.” Id. The Chief Administrative
Officer has the option to treat the grievance as an emergency and expedite a resolution, or the
Officer may inform the inmate that the grievance will not be treated as an emergency and the inmate
may then proceed with the grievance under the standard procedures. Id.
Here, Warden Lemke testified that the April 1, 2013, grievance was returned to Walker with
the direction to follow the standard procedures. There is no evidence in the record suggesting that
Walker followed this directive. Instead, it appears that Walker submitted his second grievance on
April 20, 2013. The second grievance was returned by the Administrative Review Board with a
notation for Walker to submit more information or documentation. There is nothing in the record
demonstrating that Walker ever submitted the requested information or otherwise followed up.
Thus, Walker has not exhausted his administrative remedies.
Walker argues that the Court should excuse any untimeliness because the grievances assert
an injury based on a continuing violation. The April 1, 2013, grievances asserts that the defendants
have done nothing in the sixteen months following his March 26, 2011, surgery to provide him with
access to medical care that will detect and possibly correct the nerve problem in his right leg.
A prisoner may file one grievance, instead of multiple or a successive grievance, if an
objectionable condition is continuing. Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). “Separate
complaints about particular incidents are only required if the underlying facts or the complaints are
different. Thus, once a prison has received notice of, and an opportunity to correct, a problem, the
prisoner has satisfied the purpose of the exhaustion requirement.” Id. (internal citations omitted).
The problem in the case at bar is that Walker did not file any grievance relating to his medical care
until nearly two years after the time in which to do so had passed and neither of the grievances were
pursued to exhaustion. A finding that Walker has not exhausted his either of his grievances relieves
the Court of having to consider the merits of his claims. The Court will nevertheless consider the
merits of Walker’s deliberate indifference claim.
2. Deliberate Indifference
Defendants move for summary judgment on Walker’s claim that Dr. Obaisi and Wexford
acted with deliberate indifference by delaying post-operative appointments with neurologists at UIC
and failing to order tests recommended by outside physicians. Defendants argue that Walker suffers
from a degenerative, incurable, motor neuron disease, PLS, that caused and will continue to cause
the deterioration in Walker’s condition.
Prison officials and employees violate the Eighth Amendment’s proscription against cruel
and unusual punishment when they display “deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Walker must present evidence of both the
objective and the subjective components of deliberate indifference to establish his claim. The
objective component requires the prisoner to demonstrate that his medical condition is “objectively,
sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 934 (1994). In this case, there is no question
that Walker suffers from a serious medical condition. See Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.
2005) (defining a serious medical condition as “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would perceive the need for a
At issue here, is the subjective component, which requires Walker to show that Dr. Obaisi
acted with a “‘sufficiently culpable state of mind.’” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter,
501 U.S. 294, 297 (1991)). To survive summary judgment, Walker must present evidence creating an
issue of fact that Dr. Obaisi knew of and disregarded an excessive risk to Walker’s health. See Greeno,
414 F.3d at 653 (quoting Farmer, 511 U.S. at 837). In other words, Dr. Obaisi must have been aware
of facts from which the inference could be drawn that a substantial risk of serious harm exists and
Dr. Obaisi must also draw the inference. Id. This standard does not mean that Walker must show
that Dr. Obaisi intended to harm him or desired the harm to occur. It is enough for Walker to show
that Dr. Obaisi knew of a substantial risk of harm to Walker and disregarded it. See Id. Where, as
here, the claim relates to a delay in medical care, Walker does not need to show that he was “literally
ignored.” Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir.2000). However, Walker must show
“something approaching a total unconcern for [the prisoner’s] welfare in the face of serious risks.”
Collins, 462 F.3d 757, 762 (7th Cir. 2006) (quoting Duane v. Lane, 959 F.2d 673, 677 (7th Cir.1992)).
Isolated incidents of delay are insufficient to establish a deliberate indifference claim; instead, the
Court looks at instances of delay within the totality of the medical care the inmate received. See
Walker v. Peters, 233 F.3d 494, 501 (7th Cir.2000).
In this case, it is undisputed that between his surgery in March 2011 and December 2, 2012,
when Wexford approved another consultation with neurosurgery at UIC, Walker saw Stateville
medical personnel thirty times, including seven visits with the medical director (Dr. Obaisi after
August 2012 and his predecessor prior to that date). Walker argues that the fact that he received
some treatment does not negate the possibility that the treatment he received was “‘so blatantly
inappropriate as to evidence intentional mistreatment likely to seriously aggravate’ his condition.”
Greeno, 414 F.3d at 654 (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir.1996)). Dr. Rizzo,
plaintiff’s retained expert, criticizes the lack of a three-month post-operative follow-up appointment
after Walker’s March 2011 surgery, including a failure by Dr. Obaisi to follow that order. Dkt. 124-1,
Ex. F, Rizzo Dep. at 20:1-5; 45:19 – 46:9. Dr. Obaisi could not have sent Walker for a follow-up
within three months of his surgery because Dr. Obaisi did not begin his employment at Stateville
until August 2012.
Neither medical malpractice nor a mere disagreement with a doctor’s medical judgment
amounts to deliberate indifference. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir.2010) (citing Estelle v.
Gamble, 429 U.S. at 106). All of plaintiff’s expert’s opinions concern the three month post-operative
follow-up appointment that did not happen. Dr. Rizzo did not testify to specific opinions relating to
the care and treatment that Dr. Obaisi actually provided. Instead, Dr. Rizzo testified that he had not
opined that Dr. Obaisi disregarded an excessive risk to Walker’s health. See Dkt. 124-1, Ex. F, Rizzo
Dep. at 84:8-11. Although Dr. Rizzo speculated that a follow-up appointment after six-months may
have helped preserve continuity of care, he provided no opinions, and was not asked, whether a
follow-up appointment with the neurosurgeon would have accomplished anything when Dr. Obaisi
joined Stateville more than a year later. Id. at 66:8-22. Indeed it is undisputed that Dr. Obaisi
examined Walker on September 26, 2012, requested a UM review to send Walker to UIC for a
neurological consultation, and Wexford’s UM review approved the request on December 2, 2012. It
is undisputed that UIC scheduled to the appointment with neurosurgery on April 24, 2013. In the
interim, Walker returned to Dr. Obaisi on April 9, 2013, after two weeks of swelling in his right leg.
Dr. Obaisi sent him to the emergency department at St. Joseph out of a concern that Walker was
developing a blood clot or deep vein thrombosis. Tests ruled out DVT.
This case is similar to the situation recently considered by the Seventh Circuit in Kyles v.
Williams, 679 Fed. Appx. 497, 2017 WL 946743 (7th Cir. Mar. 9, 2017). 3 In Kyles, the prisoner
plaintiff complained that the prison and medical personnel were deliberately indifferent to his
serious medical needs by limiting his physical therapy and for not scheduling a post-operative
reevaluation of his knees. Kyles, 2017 WL 946743 at *1. The court of appeals considered the merits
of Kyles’ claims even though it held that the district court had properly found that Kyles did not
exhaust his administrative remedies as to one of his grievances. Id. at *2. On the merits, the court
found that the lack of evidence of causation suggesting that the absence of physical therapy caused
his knees to “pop” or impaired his healing was fatal to his claim and summary judgment in favor of
the defendant was appropriate. Id. at *3. The court further held that the frequent attention by staff in
the medical unit during the period covered by his grievance was not deliberate indifference. Id. It
was undisputed that the defendants examined the plaintiff for knee pain in May 2010, July 2010,
September 2010, and the following January 2011, and each time prescribed pain medication and
directed him to follow-up as needed. Id. Likewise, here, it is undisputed that Walker saw medical
personnel at Stateville, including Dr. Obaisi, on numerous occasions and the only testimony to
touch on causation was speculative about what could have been done had Wexford personnel
returned Walker to UIC for a post-operative follow-up within three months of his 2011 surgery.
There was no testimony connecting Walker’s condition to this or any other failure by Dr. Obaisi.
Wexford also moves for summary judgment on Walker’s claim that Wexford has a policy of
delaying and deferring medical care. In the section 1983 context, there is no respondeat superior,
therefore, Wexford cannot be held vicariously liable for the failure of its employees and no other
Wexford employee is named. See Hahn v. Walsh, 762 F.3d 617, 639 (7th Cir. 2014). However,
“‘[p]rivate corporations acting under color of state law may, like municipalities, be held liable for
The Court recognizes that Kyles is a non-precedential order. However, it is persuasive due to its similarity to the case at
injuries resulting from their policies and practices.’” Hahn v. Walsh, 762 F.3d 617, 640 (7th Cir. 2014)
(quoting Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir.2012)). “An official policy or
custom may be established by means of an express policy, a widespread practice which, although
unwritten, is so entrenched and well-known as to carry the force of policy, or through the actions of
an individual who possesses the authority to make final policy decisions on behalf of the
municipality or corporation.” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012)
(citing e.g., Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th Cir.2011); Waters v. City of Chicago,
580 F.3d 575, 581 (7th Cir.2009)). Walker must show a causal connection between his injury and
Wexford’s official policy or custom. Hahn, 762 F.3d at 640.
Although Walker attempts to show a series of delays in his medical care, the undisputed
evidence shows that some of the alleged delay was the result of UIC scheduling of appointments.
Further, there is no evidence of a causal connection between Walker’s deteriorating condition and
any delay between appointments with neurologists or neurosurgeons at UIC. Walker was examined
thirty times by medical personnel at Stateville, including seven visits with the medical director.
Moreover, the undisputed fact that Walker did not file a grievance until two years after his initial
surgery suggests that he did not have significant concerns about his care and treatment. The record
also does not show any instance where the medical director requested additional care, outside care,
and his recommendation was denied by Wexford. Plaintiff’s medical expert testified that he could
not recall Wexford’s policies and procedures in 2011 with regard to sending inmates for follow-up
care, though he opined that there should have been one in place. Dkt. 124-1, Ex. F at 91:21-92:19.
The evidence in the record fails to establish sufficient causal connection between Wexford’s policies
and Walker’s condition to establish a genuine issue of fact on Wexford’s liability.
The Court is not unsympathetic to the severe and degenerative condition from which
Walker suffers. The undisputed factual record is insufficient to allow his claims to proceed to a jury.
In addition to his claims being barred by a failure to exhaust his administrative procedures, they
must also fail on the merits. Dr. Obaisi, the only individual defendant, did not join Wexford at
Stateville until more than a year after Walker’s March 2011 surgery, after which he claims Wexford
should have sent him for post-operative follow-up. When Dr. Obaisi examined Walker, he
recommended review for neurological consultation at UIC. The recommendation was approved and
UIC scheduled Walker for an appointment in neurology. While it was six months between Dr.
Obaisi’s examination and UIC scheduling an appointment, there is nothing in the record to support
an inference that something could have been done differently in that time frame that would have
altered Walker’s condition. There is likewise scant evidence of a causal connection between
Wexford’s alleged policy of delaying medical care and Walker’s condition.
Based on the foregoing discussion, this Court grants summary judgment in favor of
IT IS SO ORDERED.
Date: August 11, 2017
SHARON JOHNSON COLEMAN
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?