Shaw v. Wexford Health Sources, Inc. et al

Filing 139

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 1/13/2017:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Maurice Shaw,
Plaintiff,
v.
Wexford Health Sources, Inc., et al.,
Defendants.

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Case No. 13-cv-09335
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff Maurice Shaw (“Shaw”) filed his amended complaint [9] asserting claims against
Wexford Health Sources, Inc. (“Wexford”), Dr. Saleh Obaisi (“Dr. Obaisi”), Shaun Bass (“Bass”)
and Royce Brown-Reed (“Brown-Reed”) under 42 U.S.C. § 1983 for their alleged deliberate
indifference to Shaw’s medical condition.

Wexford and Dr. Obaisi (together, the “Wexford

Defendants”) and Bass and Brown-Reed (together, the “IDOC Defendants”) have filed parallel
motions for summary judgment. For the following reasons, the Wexford Defendants’ motion for
summary judgment [111] is granted and the IDOC Defendants’ motion for summary judgment [115]
is granted.
Background
Shaw is currently an inmate in the custody of the Illinois Department of Corrections
(“IDOC”) at Stateville Correctional Center (“Stateville”). (Dkt. 120 1 ¶ 1; Dkt. 122 2 ¶ 1). Wexford, a
private corporation contracted by IDOC, provided medical services to Stateville inmates during the
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Dkt. 120 is Shaw’s response to the Wexford Defendants’ statement of material facts. Shaw objected to the
Wexford Defendants’ statement of facts on the grounds that it violated Local Rule 56.1 because it contained legal
arguments and exceeded the number of permitted statements of fact. The Court disregarded any and all legal
arguments in the Wexford Defendants’ statement of material facts. The Court also finds that the Wexford
Defendants did not exceed the number of permitted statements of fact as a majority of the statements were short
paragraphs, each of which related to one factual assertion.
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Dkt. 122 is Shaw’s response to the IDOC Defendants’ statement of material facts.

time periods relevant to this dispute. (Dkt. 120 ¶ 3). Dr. Obaisi, who was employed by Wexford,
has been the Stateville medical director since August 2, 2012. (Dkt. 120 ¶¶ 2, 26). Bass, who served
as a Stateville grievance officer in 2012 and 2013, reviewed prisoner grievances including those
concerning medical treatment. (Dkt. 122 ¶ 3). Brown-Reed served as the Stateville Health Care
Unit administrator. (Dkt. 122 ¶ 4).
Shaw brings claims against these defendants pursuant to 42 U.S.C. § 1983 for their
purported involvement in a 14-month delay in him receiving physical therapy to treat his right
shoulder.
In October 2010, Shaw injured both of his shoulders. (Dkt. 122 ¶ 10). Shaw’s left shoulder
was treated first since both shoulders could not be treated at the same time. Shaw sought treatment
of his right shoulder in February 2012, and was referred to the University of Illinois Chicago
(“UIC”) for an assessment. (Dkt. 122 ¶¶ 11, 12). An MRI was taken of Shaw’s right shoulder in
May 2012. Shaw returned to the UIC orthopedic clinic on June 11, 2012 for a follow-up on the
MRI. (Dkt. 120 ¶ 16; Dkt. 122 ¶ 12). The UIC orthopedic note issued after the visit states that “the
MRI of [Shaw’s] right shoulder reveals tendinopathy of the supra and infraspinatus with
undersurface tear of the distal fibers.” (Dkt. 120 ¶ 12; Dkt. 128 3 ¶ 6). The attending physician, Dr.
Benjamin Goldberg (“Dr. Goldberg”), recommended that Shaw undergo physical therapy two to
three times a week for four months and that he return for a follow-up four months later. (Dkt. 120
¶ 16; Dkt. 122 ¶ 13). Dr. Roderick Matticks (“Dr. Matticks”), a Wexford staff physician, approved
the UIC recommendation for physical therapy on June 14, 2012, and forwarded the
recommendation to the Stateville Medical Records Department with instructions to forward it to the
Stateville Physical Therapy Department. (Dkt. 120 ¶ 24).

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Dkt. 128 is the IDOC Defendants’ responses to Shaw’s statement of additional facts.

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On July 3, 2012, Shaw filed grievance number M1386. (Dkt. 122 ¶ 14). In the grievance,
Shaw briefly describes his visits to UIC in May and June 2012, claims that he was told by a UIC
doctor that the MRI revealed a tear in his right rotator cuff, and that he was prescribed physical
therapy twice a week. (Dkt. 9-7). Shaw also indicated that he had yet to begin physical therapy. (Id.).
Bass reviewed the grievance and issued a Grievance Officer Report on September 12, 2012 denying
Shaw’s grievance. (Dkt. 122 ¶ 15; Dkt. 128 ¶ 12). The Grievance Officer Report provided the
following:
Per chart review and medical records, on 5/4/12 LPN note; return from UIC following
MRI for possible rot cuff tear. 5/16/12 MD note; patient visit follow up right shoulder
condition. Had MRI done about 2 weeks ago. 6/11/12 RN note; inmate to HCU from
UIC ortho follow up. 0 new orders at this time. This Grievance Officer has no medical
expertise or authority to contradict the doctor’s recommendation/diagnosis. It appears that
inmates medical needs have been addressed and met. There are no orders in medical file
that specify that grievant is to be submitted for physical therapy.
(Dkt. 9-8). Shaw did not communicate or interact with Bass before or after he filed grievance
number M1386. (Dkt. 122 ¶ 21).
Dr. Obaisi met with Shaw for the first time on September 24, 2012. (Dkt. 120 ¶ 26). Dr.
Obaisi’s notes from the visit indicate that the MRI did not show a full tear. (Dkt. 120 ¶ 27). Dr.
Obaisi diagnosed Shaw as having tendinosis and appears to have given him a steroid injection meant
to reduce inflammation and pain in his right shoulder. (Dkt. 120 ¶¶ 27, 28). He testified that he was
not aware of the physical therapy recommendation from UIC. (Dkt. 120 ¶ 29). Dr. Obaisi did not
order physical therapy on September 24, 2012.
Shaw filed his next grievance on March 25, 2013, because he had yet to receive physical
therapy; the grievance mentioned that Shaw was still suffering from pain in his right shoulder. (Dkt.
128 ¶¶ 13, 14). On March 26, 2013, Shaw met with LaTanya Williams (“Williams”), a Stateville
physician’s assistant, and provided her with copies of his MRI, the UIC MRI report, and the UIC
orthopedic report. (Dkt. 122 ¶ 31). Williams testified that she could not remember whether the
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MRI results and the referral for physical therapy were already in Shaw’s medical file on March 26,
2013. (Dkt. 128 ¶ 18). Williams ordered physical therapy for Shaw and recommended that it be
done “ASAP.” (Dkt. 122 ¶ 35; Dkt. 128 ¶ 23).
Shaw next visited with Dr. Obaisi on April 16, 2013. (Dkt. 120 ¶ 36). On that day, Dr.
Obaisi charted a plan for physical therapy and authored a written referral to the Stateville Physical
Therapy Department. He also referred Shaw back to the UIC orthopedics department for a followup visit. (Dkt. 120 ¶¶ 36, 37).
In June 2013, Shaw wrote a letter to Brown-Reed in which he complained of the pain in his
shoulder and about not receiving physical therapy. (Dkt. 122 ¶ 22; Dkt. 128 ¶ 26). Shaw never
communicated directly with Brown-Reed about his shoulder issues after the June 2013 letter. (Dkt.
122 ¶ 29).
Shaw met with Dr. Obaisi again on August 6, 2013. Dr. Obaisi gave Shaw a steroid injection
to deal with inflammation, prescribed two different medications to address inflammation and pain,
and ordered an x-ray on Shaw’s right shoulder. (Dkt. 120 ¶ 38). Shaw began physical therapy on
August 15, 2013. (Dkt. 120 ¶ 39).
Legal Standard
Summary judgment is proper where the record shows that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Whiting
v. Wexford Health Sources, Inc., 839 F.3d 658, 661 (7th Cir. 2016). A genuine dispute as to any material
fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving
party. Whiting, 839 F.3d at 661.
Discussion
To succeed on a claim for deliberate indifference, Shaw must demonstrate that he had an
objectively serious medical need and that the Wexford Defendants and IDOC Defendants were
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aware of and refused to take reasonable steps to address it. Berry v. Peterman, 604 F.3d 435, 440 (7th
Cir. 2010); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001). Generally speaking, “[d]eliberate
indifference is intentional or reckless conduct, not mere negligence.” Berry, 604 F.3d at 440 (citation
omitted). As to medical professionals, deliberate indifference will only be inferred if a physician’s
treatment decision is such a departure from accepted professional standards as to raise the inference
that it was not actually based on a medical judgment. Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.
2006).

When determining whether deliberate indifference can be inferred from a physician’s

treatment decision, courts focus on what the physician knew at the time of treatment. Duckworth v.
Ahmad, 532 F.3d 675, 680 (7th Cir. 2008). Nonmedical personnel, on the other hand, are generally
entitled to rely on the judgment of jail health professionals, Berry, 604 F.3d at 440, and will not be
found to be deliberately indifferent unless they have reason to believe that medical personnel are
mistreating or not treating a prisoner. King v. Kramer, 680 F.3d 1013, 1018-19 (7th Cir. 2010); Hayes v.
Snyder, 546 F.3d 516, 527 (7th Cir. 2008).
A “serious” medical need is one that a physician has diagnosed as needing treatment or is so
obvious that even a lay person would recognize the necessity for a doctor’s attention. Knight v.
Wiseman, 590 F.3d 458, 463 (7th Cir. 2009) (finding that a repeated shoulder injury constituted a
serious medical need). The evidence clearly demonstrates that Shaw’s medical need was similar to
the one addressed in Knight and that multiple physicians determined that his shoulder condition
required treatment. Shaw’s medical need was indeed a serious one. Therefore, the only issue to
resolve on the motions for summary judgment is whether Dr. Obaisi, Wexford, Bass, and BrownReed were deliberately indifferent.
Shaw claims that Dr. Obaisi showed deliberate indifference to his medical needs by refusing
to provide him with and delaying the administration of the recommended treatment for his shoulder

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injuries – specifically, physical therapy – and by failing to follow up with him. Shaw focuses on the
14-month delay in physical therapy from June 2012 to August 2013.
Shaw argues that Dr. Obaisi is not entitled to summary judgment because there are still
outstanding issues of material fact related to whether Dr. Obaisi departed from accepted
professional standards. As support for this contention, Shaw relies on Dr. Mitchell B. Sheinkop’s
(“Dr. Sheinkop”) expert report. (Dkt. 112-7). An expert report will not create a genuine issue of
material fact if it does not provide the basis for its conclusions. Weigel v. Target Stores, 122 F.3d 461,
469 (7th Cir. 1997); Mid-State Fertilizer Co. v. Exch. Nat’l Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir.
1989) (citations omitted).
The evidence shows that Dr. Goldberg’s initial review of Shaw’s MRI revealed
“tendinopathy of the supra and infraspinatus with undersurface tear of the distal fibers,” (Dkt. 120
¶ 12; Dkt. 128 ¶ 6), while Dr. Obaisi’s initial diagnosis was tendinosis. (Dkt. 120 ¶¶ 27, 28). First,
Dr. Sheinkop’s report and Shaw fail to show how Dr. Obaisi’s diagnosis was a departure from
accepted medical professional standards.

Next, Dr. Sheinkop concludes that the appropriate

standard of treatment for rotator cuff related symptoms is physical therapy, (Dkt. 112-7 at 1); the
bases for this conclusion are articles that Dr. Sheinkop attaches to his report which directly
contradict his conclusion. (Id. at 48 (“Many rotator cuff tears can be treated nonsurgically. Antiinflammatory medication, steroid injections, and physical therapy may all be of benefit in treating
symptoms of a cuff tear.”); see also id. at 53 (listing steroid injections as an alternative to rest,
medications, and physical therapy)). Dr. Sheinkop fails to show how Dr. Obaisi’s initial treatment of
Shaw’s shoulder – a steroid injection – is a departure from accepted medical standards, even if one
were to assume that he misdiagnosed Shaw or that he was aware of the UIC physical therapy
recommendation. Lastly, Dr. Sheinkop writes that “Dr. Obaisi’s view of physical therapy is not
consistent with Evidence Based Medicine,” (Id. at 6), but does not indicate how or why. Any
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conclusions found in Dr. Sheinkop’s report that would preclude summary judgment are
unsupported and therefore do not create an issue of material fact.
The Wexford Defendants also contend that summary judgment in favor of Dr. Obaisi is
appropriate because any delay in physical therapy is not attributable to Dr. Obaisi. Liability under
section 1983 requires personal participation by the defendant, Payne v. Chuchich, 161 F.3d 1030, 1039
(7th Cir. 1998), and there is no evidence in the record that Dr. Obaisi personally delayed the physical
therapy that Dr. Goldberg recommended and Dr. Matticks approved.
No reasonable jury could find that Dr. Obaisi was deliberately indifferent to Shaw’s medical
need, therefore, the Court grants summary judgment in his favor.
The parties characterize the claim against Wexford, the entity, as a claim under Monell v. Dep’t
of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L. Ed. 2d 611 (1978), in their joint
status report on discovery. (Dkt. 65). The parties agreed to bifurcate Shaw’s claims against the
individual defendants and his claim against Wexford, the private entity, and the parties agreed to stay
discovery related to the claim against Wexford. Shaw, however, reserved the right to move forward
with discovery against Wexford if there was no constitutional violation perpetrated by the individual
defendants. (Dkt. 65 at 3).
Despite neither party having put forth any facts about Wexford policies and procedures, the
Wexford Defendants still argue that summary judgment in favor of Wexford is appropriate because
Wexford’s agent – Dr. Obaisi – did not provide unconstitutional medical care. See, e.g. Pyles v. Fahim,
771 F.3d 403, 412 (7th Cir. 2014) (holding that Wexford could not be liable for damages because
there was no underlying constitutional violation) (citation omitted); Ray v. Wexford Health Sources, Inc.,
706 F.3d 864, 866 (7th Cir. 2013) (per curiam) (finding that it was unnecessary to decide what
Wexford’s policy may be since the plaintiff had not established a constitutional violation). Shaw
does not attempt to distinguish these cases, or the other cases the Wexford Defendants cite. Rather,
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Shaw relies on Woodward v. Correctional Med. Servs. of Ill., 368 F. 3d 917, 928 (7th Cir. 2004), for the
proposition that Wexford may still be liable for deliberate indifference. Shaw, unlike the plaintiff in
Woodward, has not shown a series of bad decisions made by the medical staff at Stateville that would
permit an inference that the policymakers at Wexford condoned and supported the misconduct of
its employees. Id. at 927. Rather, the evidence and testimony provided by the parties shows that
Shaw received constitutionally adequate medical care, was not ignored by staff, and that delays in
receiving treatment were attributable to the normal Stateville processes. No reasonable jury could
return a verdict against Wexford for deliberate indifference, particularly when there is no individual
liability, therefore, the Court grants summary judgment in Wexford’s favor.
Shaw’s claim against Bass is primarily based on the Grievance Officer Report. Shaw argues
that Bass’s representation that there were no new orders for physical therapy in his medical file is
evidence that Bass failed to conduct any investigation into Shaw’s grievance. Shaw also contends
that Bass deliberately disregarded Shaw’s complaints when he denied grievance number M1386.
It is clear that grievance number M1386, filed on July 3, 2012, put Bass on notice than an
MRI of Shaw’s right shoulder had been taken and that Shaw had not received the recommended
physical therapy. Shaw, however, fails to provide evidence that elevates Bass’s failure to see or
review the MRI documentation that UIC provided, assuming it was in the file, to something more
than negligence. Bass conducted some investigation; this conclusion is evidenced by his near
verbatim quotes from the medical files in the Grievance Officer Report. As an example, the
Grievance Officer Report clearly reflects a note from a Stateville nurse which provides that as of
June 11, 2012, there were “0 new orders at this time.” (Compare Dkt. 114 4 at IDOC 000231 with Dkt.
9-8).

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Dkt. 114, a collection of Shaw’s medical records, is currently filed under seal.

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The contention that Bass deliberately disregarded Shaw’s complaints also fails.

Shaw

provides no authority or evidence that contravenes the longstanding principle that non-medical
personnel are entitled to rely on the notes and recommendations of medical professionals. The
Grievance Officer Report clearly indicates that Bass relied on the Stateville medical professionals’
notes in Shaw’s medical files when he came to his decision to deny Shaw’s grievance. Finally, the
Court notes that Shaw’s contact with Bass is limited to grievance number M1386. No jury could
find Bass to have been deliberately indifferent to Shaw’s medical needs, therefore, the Court grants
summary judgment in Bass’s favor.
Finally, Shaw alleges that Brown-Reed denied him access to recommended medical care by
refusing to take corrective measures and by turning a blind eye to Bass and the Wexford
Defendants’ actions. The basis for this claim is Shaw’s June 2013 letter to Brown-Reed.
The evidence shows that by the time Brown-Reed received the letter, Shaw had already been
referred to UIC for another follow-up and that Dr. Obaisi had issued another order for physical
therapy. Shaw does not point to any authority that supports the proposition that Bass-Reed had the
obligation to speed up Shaw’s physical therapy, or that she was not entitled to rely on the decisions
that had been made by medical professionals. The Court holds that no jury could find that BrownReed was deliberately indifferent to Shaw’s medical needs, therefore, summary judgment in BrownReed’s favor is granted.

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Conclusion
For the foregoing reasons, the Court grants the Wexford Defendants’ motion for summary
judgment [111] and the IDOC Defendants’ motion for summary judgment [115].
IT IS SO ORDERED.
_____________________________
SHARON JOHNSON COLEMAN
United States District Judge
DATED: January 13, 2017

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