Baker v. Obasi et al
Filing
171
MEMORANDUM Opinion and Order: Signed by the Honorable Rebecca R. Pallmeyer on 3/27/2024. Mailed notice. (cp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DWAYNE EUGENE BAKER (#R-29601),
)
)
Plaintiff,
)
)
v.
)
)
GHALIAH OBAISI, Independent Executor of )
Estate of SALEH OBAISI,
)
)
Defendant.
)
No. 16 CV 7668
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Dwayne Eugene Baker, a prisoner at Stateville Correctional Center (“Stateville”)
in Illinois, brought this action under 42 U.S.C. § 1983 against Stateville doctors Saleh Obaisi,
M.D.; Alma Martija, M.D.; and Stateville’s former Assistant Warden Victor Calloway. Baker
contends the Defendants were deliberately indifferent to a serious medical condition affecting
Baker’s wrist. Since the filing of this lawsuit, Martija and Calloway have been dismissed [79, 113],
and after Dr. Obaisi died in 2017, his estate was substituted as a Defendant [90]. The estate now
moves for summary judgment on Baker’s claims [119]. 1 For the reasons explained here, the
motion is denied.
BACKGROUND
The record in this case is messy and disputed. 2 The parties nominally contest almost
every fact in each other’s Local Rule 56.1 statements, and the court has prepared the following
This motion has been briefed for some time but was only recently reassigned to
this court. (See Executive Committee Order [169].)
1
For one, Plaintiff filed exhibits to his Statement of Additional Facts (“SOAF”) in
groups, and some do not bear Bates numbers. Accordingly, the court uses ECF “PageID”
numbers when citing to these exhibits, adding internal pagination or line numbers where, as in
the case of depositions, such information is useful. For consistency, the court does the same
when citing to the exhibits supporting Defendant’s Rule 56 statements. The depositions
referenced are as follows, with corresponding ECF Numbers: Deposition of Dr. Martija (one of
Plaintiff’s treating physicians at Stateville), Ex. A to SOAF (hereinafter “Martija Dep.”) [139-1] at
2
factual account by relying on evidence in the factual record, whose contents include: Plaintiff’s
grievances, medical records, and his deposition; the depositions of two of Plaintiff’s treating
physicians (Dr. Martija at Stateville and Dr. Gonzalez at the University of Illinois at Chicago
(“UIC”)); depositions of and reports written by each party’s medical expert (Dr. Michael Treister
for Plaintiff, and Dr. Bruce Goldberg for Defendant); and more. (See generally Ex. List to Am.
Rule 56.1(a)(3) Statements of Undisputed Material Facts [127].) 3 Notably, Dr. Obaisi was not
deposed before his death in 2017.
I.
Treatment History and Procedural Background
Baker is a prisoner at Stateville. (Def. Ghaliah Obaisi, Independent Executor of Estate of
Saleh Obaisi – Am. Rule 56.1 (a)(3) St. of Undisputed Material Facts (hereinafter “DSOF”) [126]
¶ 1.)
Beginning in the mid-2000s and continuing into the times relevant to this case, he has
suffered from serious wrist pain. In 2007, Baker had developed a one-centimeter ganglion cyst
on his wrist; he saw a doctor for the condition in 2008, and after that visit, it disappeared without
treatment. (DSOF ¶ 38.) But the problem resurfaced in 2013, and Plaintiff saw Dr. Obaisi,
Stateville’s Medical Director, both that year and in an appointment on August 20, 2014 for the
issue. (Dwayne Eugene Baker’s Statement of Additional Material Facts (hereinafter “SOAF”)
[139] ¶ 1; Ex. Baker Dep. at 47:4–19, 56:15–19; Ex. C to SOAF (hereinafter “Martija Note”) [1392292–2321; Deposition of Plaintiff, Ex. D to SOAF (hereinafter “Baker Dep.”) [139-1] at 2327–
2578; Deposition of Dr. Gonzalez (Plaintiff’s hand specialist at UIC), Ex. BB to SOAF (hereinafter
“Gonzalez Dep.”) [139-6] at 2721–2814; Deposition of Dr. Goldberg (Defendant’s medical expert),
Ex. CC to SOAF (hereinafter “Goldberg Dep.”) [139-6] at 2815–2840; and Deposition of Dr.
Treister (Plaintiff’s medical expert), Ex. EE to SOAF (hereinafter “Treister Dep.”) [139-6] at 2843–
2923.
The parties agreed that most of the record materials should be placed under seal
[46], but such a practice is contrary to Circuit precedent. See Duff v. Cent. Sleep Diagnostics,
LLC, 801 F.3d 833, 844 (7th Cir. 2015) (pointing out that “secrecy in judicial proceedings is
generally disfavored”); In re Specht, 622 F.3d 697, 701 (7th Cir. 2010); (noting that “[d]ocuments
that affect the disposition of federal litigation are presumptively open to public view”). Accordingly,
the court will direct the Clerk to lift the seal on all materials considered in connection with this
motion. The court will stay this direction for 14 days, however, and invites the parties during that
14-day period to identify specific portions of the record that they believe should be redacted and
kept under seal.
3
2
1] at 2326.) At the August appointment, Obaisi ordered an X-ray of Baker’s wrist, which showed
“no visible bone or joint pathology.” (Baker Dep. at 97:20–23; see also id. at 58:20–59:7.) But
late that year, Baker returned, as more fully described below.
A.
Plaintiff’s November 2014 Appointment
Baker visited Dr. Obaisi again on November 18, 2014. (DSOF ¶ 6; SOAF ¶ 1.) According
to a grievance he filed later that day, 4 Baker sought Obaisi’s treatment for an “unknown knot under
[his] foot and some type of cyst growing on [his] wrist.” (Ex. B to SOAF (hereinafter “November
2014 Grievance”) [139-1] at 2323.) The parties dispute what happened next. It appears that
Plaintiff’s appointment was intended to address the growth on his foot, but that Baker raised the
matter of his continuing wrist pain. According to Baker, Obaisi told him “he wasn’t going to do
anything for [his] wrist” until he had treated Plaintiff’s foot, which so angered Plaintiff that he “asked
Dr. Obaisi in that meeting what type of doctor was he.” (Baker Dep. at 57:7–58:1, 86:8–15.)
According to Plaintiff, Obaisi replied: “what do you mean what type of doctor am I, fuck your wrist
and you, get the fuck out of here.” (November 2014 Grievance at 2324; see also Baker Dep. at
58:1–9, 103:1–2 (“Technically, he had out of his mouth, his specific words was fuck your wrist.”).)
At this point, “without examining [his] wrist or foot” or prescribing medication or a follow-up
appointment, Dr. Obaisi told Baker “to leave the health care unit.” (November 2014 Grievance at
2324.) Defendant admits that Obaisi saw Baker on that day, but denies he used the language
Defendant argues that Plaintiff’s grievances constitute inadmissible hearsay and
cannot be considered at the summary judgment stage. At the summary judgment stage, the court
considers evidence that “would be admissible at trial,” and such evidence “need not be admissible
in form, but must be admissible in content, such that, for instance, affidavits may be considered if
the substitution of oral testimony for the affidavit statements would make the evidence admissible
at trial.” Wheatley v. Factory Card and Party Outlet, 826 F.3d 412, 420 (7th Cir. 2016). Given
that Plaintiff was deposed in this case—and, during that deposition, testified consistently with his
grievances—and, further, can testify from personal knowledge as to what he describes in his
grievances, the court will rely on them as evidence in assessing Defendant’s summary judgment
motion. Nor is there anything objectionable in the fact that some of these grievances are “selfserving.” Rooni v. Biser, 742 F.3d 737, 740 (7th Cir. 2014). Some information in the grievances
is inadmissible on other grounds, of course, which the court recognizes in this discussion.
4
3
that Plaintiff attributes to him. (Def.’s Resp. to Pl.’s Statement of Additional Facts (hereinafter D’s
Resp. – SOAF) [149] at 2). As noted earlier, however, Dr. Obaisi is deceased, and Defendant
therefore has no evidentiary basis to rebut Plaintiff’s account. That the account is “self-serving”
is not a basis for excluding it.
B.
Plaintiff’s Months-Long Effort to Get Approval to See a Specialist (November
2014–June 10, 2015)
In the grievance he filed after his appointment, Plaintiff wrote that “[i]t’s urgent that I see a
doctor who is concerned about the medical problems I have, and is willing to help resolve the
problem.” (November 2014 Grievance at 2324.) Plaintiff in fact saw Dr. Martija, a staff physician
at Stateville, 5 on January 29, 2015 in an appointment that also turned heated. (Martija Note at
2326.) According to Martija’s doctor’s note, “[a]llegedly [Plaintiff’s] hand/wrist is in pain.” (Id.)
She noted that Plaintiff had seen Dr. Obaisi for the same reason back in November, but that
Obaisi “determined it to be benign and plan was to f/u PRN.” 6 (Id.) Because Plaintiff already had
been approved to see an outside specialist for a cyst on his foot, Martija “told him to wait until he
returns from [that] visit to see Dr. Obaisi [about his wrist],” in part to save Plaintiff the ($5) cost of
an additional visit and in part because medications used to treat his foot cyst might also alleviate
his wrist symptoms. (Id.) Baker, evidently unhappy with this suggestion, “got angry & was
removed from premises by security.” (Id.; Martija Dep. at 98:8–99:9.)
On the same day of his appointment with Martija, Plaintiff wrote a letter to Dr. Obaisi. In
it, he wrote, “I apologize if I insulted you in any type of way when I asked you what type of doctor
was you. But I really need to see you right away cause I lay around in pain 24/7 from this knot in
Dr. Martija described her role at Stateville, which lasted from July 2014 to July
2016, as “s[eeing] patients who had minor medical problems,” and referring those she “thought
needed a higher level of care” to Dr. Obaisi. (Martija Dep. at 21:24–22:15.)
5
Though neither party defines “f/u PRN,” the court takes it to mean “follow up” and
pro re nata, or “as needed.” See Martija Dep. at 101:14–20; prn, MERRIAM-WEBSTER.COM (last
visited Mar. 25, 2024), https://www.merriam-webster.com/dictionary/prn.
6
4
my foot, also from this knot in my wrist.” (Ex. E to SOAF [139-1] at 2580.) He went on to explain
that his wrist pain “keeps me from picking anything up, bending my hand backwards, and I often
have to stop writing when I’m writing more than a page . . . .” (Id.) He also noted, “I have no type
of pain meds to even try and relieve some of this pain, so I really need to see you about these 2
problems right away.” (Id.) Around this time, Plaintiff also filed a grievance in which “he requested
an MRI to evaluate the pain in his right wrist”—a diagnostic test that Dr. Michael Treister, Plaintiff’s
medical expert, later concluded was indeed “medically necessary to help alleviate Mr. Baker’s
wrist pain.” (Ex. F (Part One) to SOAF (hereinafter “Treister Rep.”) [139-2] at 2588; see also Ex.
8 to DSOF (hereinafter “Goldberg Rep.”) [127-7] at 2095 (also noting that “Mr. Baker submitted
to the prison a grievance form that he was not being sent for an MRI” around this time.) 7
On March 13, 2015, Baker had his foot appointment with an outside specialist—a
podiatrist named Matthew Keene at UIC—to address the plantar fibroma on his foot. (SOAF ¶¶
8–9.) After that appointment, Dr. Keene wrote notes in a “Referral and Report” form summarizing
the appointment and making two recommendations: first, that the mass on Plaintiff’s foot be
excised; and second, that Baker be sent to a hand specialist for his wrist cyst. (Id. ¶¶ 9–10; Ex. I
to SOAF [139-4] at 2667.)
Within a couple of days, Obaisi had officially approved Keene’s
recommendation that Baker’s foot fibroma be removed. (SOAF ¶ 10.) Keene’s recommendation
that Baker see a hand specialist was ignored, however. (Id.)
While awaiting treatment recommended by Dr. Keene, Plaintiff continued to seek medical
help for his wrist at Stateville. He saw a physician’s assistant on March 16th, 2015 who noted
that Baker reported that “it hurts to do anything” because of his wrist issue. (Ex. G to SOAF [1394] at 2662.) Baker was then referred to Dr. Obaisi, who saw Baker on March 23. (DSOF ¶ 7;
Ex. 9 to DSOF (hereinafter “IDOC Medical Records”) [127-8] at 2131.) According to Obaisi’s note
7
The court recounts both parties’ expert reports in more detail below.
5
recounting that appointment, Baker spoke about his wrist pain and Obaisi prescribed him Mobic,
an anti-inflammatory drug, for 90 days. 8 (Id.)
Plaintiff had a follow-up foot appointment with Dr. Keene on May 29, 2015. (SOAF ¶ 11.)
In the “Referral and Report,” Keene once again remarked that Plaintiff “likely” had a “ganglion
cyst” in his right wrist, and that he “w[ould] need w/u [workup]” with an “ortho/hand” specialist for
the problem. 9 (Id.; Ex. K to SOAF [139-4] at 2671.) After this second request, on June 10, Obaisi
approved Baker to see a hand specialist at UIC. (SOAF ¶ 12.) In a memorialization of that
approval, a Wexford medical note reads “6-9-15 RCVD REQUEST FOR HAND CLINIC
EVALUATION AT UIC – APPROVED BY DR. RITZ IN COLLEGIAL WITH DR. OBAISI FOR PT
W/ GANGLION RIGHT WRIST.” (Ex. L. to SOAF [139-4] at 2673.) Oddly, the bottom of that
document bears a stamp stating “FAXED OCT 28 2015 . . . .” (Id.) Understanding the potential
significance of that stamp first requires some detail as to the process for scheduling prisoners’
appointments with outside specialists, described below.
Mobic is a brand of meloxicam, a nonsteroidal anti-inflammatory drug that treats
arthritis symptoms.
Meloxicam, Mayo Clinic (last updated Mar. 1, 2024),
https://www.mayoclinic.org/drugs-supplements/meloxicam-oral-route/side-effects/drg20066928?p=1. Plaintiff appeared to be on various similar pain medications at different times
throughout 2014 and 2015, including Naprosyn, Tylenol, Motrin, and Methocarbamol. (DSOF ¶
6.) Neither party points to record evidence tying these medications specifically to Plaintiff’s wrist
pain (as opposed to his foot fibroma, at which Plaintiff claims the medications were targeted). Nor
does the record clarify the timing (that is, when Plaintiff was taking which medication). It appears
that in January 2016, Plaintiff’s medication was switched from Motrin to Naprosyn because Motrin
“was not helping” him with the pain he had (whether from his wrist or otherwise was unspecified).
(DSOF ¶ 8.)
8
Plaintiff’s expert explained that ganglion cysts “are the result of synovial fluid which
is produced by inflamed synovial tissues at the intra-carpal or wrist joint levels.” (Treister Rep. at
2587.) The cysts vary in size over time and can “spontaneously disappear.” (Id.) Additionally,
they often need not be removed “[u]nless [they] push on nerves and/or tendons, or restrict
movements by virtue of their size . . . .” (Id.) When symptomatic, they are “commonly removed,”
but because they frequently recur, some doctors avoid surgical intervention. (Id.)
9
6
C.
Scheduling Plaintiff’s Specialist Appointment After its Approval (June 2015–
July 26, 2016)
The (admissible) record evidence sheds some light on how Stateville prisoners were
supposed to be scheduled for appointments with outside specialists. An Administrative Directive
from the Illinois Department of Corrections (“IDOC”), (Ex. AA to SOAF (hereinafter “IDOC
Administrative Directive”) [139-6] at 2715–20), explained the process the following way. 10 If a
physician determined that a referral was “medically necessary,” they were supposed to submit a
“Medical Special Services Referral and Report” to the Medical Director. (Id. at 2716.) The Medical
Director would then review the referral and determine whether to follow through with it; if the
Director approved the referral, he would “submit [it] to the Utilization Management Unit of the
facility’s health care vendor,” in this case, Wexford Health Sources, 11 either “in writing or verbally
through a collegial review.” 12 (Id.) The vendor’s Utilization Management Unit (“UM Unit”) would
then review the approval and “submit a written response” to the Medical Director within five
working days. (Id. at 2717.) In the event of approval from the UM Unit, the Directive states that
the “Facility Medical Director shall ensure services are scheduled and the course of treatment is
initiated.” (Id.) The same section of the Directive concerning scheduling separately states that
“[i]f approved, health care staff shall schedule the pending specialty service.” (Id.)
Defendant repeatedly cites to this directive in its objections to Plaintiff’s Statement
of Additional Facts while simultaneously claiming, without citation to cases or the Federal Rules
of Evidence, that Plaintiff cannot rely on the Directive because he cannot “lay proper foundation”
for it. (See D’s Resp – SOAF at 7, 9, 10–12, 14, 15–18.) As Defendant itself cites the report, its
objection to Plaintiff’s own citation to the document is overruled.
10
Wexford Health Sources, Inc. is a company that contracted to provide the medical
care at Stateville and other Illinois prisons. See Dean v. Wexford Health Sources, Inc., 18 F.4th
214, 221 (7th Cir. 2021) (describing Wexford as “a private corporation that contracts with Illinois
to provide healthcare to Illinois inmates.”).
11
In other words, a “collegial” in this context means a review and sign-off of one
doctor’s treatment decision by another. See Dean, 18 F.4th at 221 (describing Wexford’s
“collegial review” policy as “requir[ing] Wexford’s corporate office to preapprove offsite care”).
12
7
Whether and to what extent these directions were followed by Stateville’s medical staff is
unclear. For example, at times in her deposition, Dr. Martija claimed to not know how scheduling
occurred. (Martija Dep. at 84:9–24.) At other times, she agreed that Dr. Obaisi, as the Medical
Director, was responsible for ensuring that specialty consults were scheduled “and the course of
treatment was initiated.” (Id. at 54:8–11.) At one point, Martija claimed that scheduling of these
consults was handled by a woman named Inca, apparently Stateville’s then-Medical Records
Director, but went on to say “[b]ut that’s not really part of her job description. I think she does it.
I don’t know why.” (Id. at 54:12–22.) And in his deposition, Baker testified that a woman named
Amanda—whose last name he did not know—was the scheduling coordinator for prisoners’
appointments at UIC around the summer of 2015. (See Baker Dep. at 197:16–198:21.) According
to Baker, “Amanda d[id] the scheduling, and Dr. Obaisi, it’s up to the medical director and Amanda
to come up with the scheduling process.” (Id. at 198:1–2.)
Whatever the procedure for scheduling one, Plaintiff’s appointment continued to elude
him. After the June approval, months passed without update. By September 17, Plaintiff had
filed a grievance claiming that he was being denied proper medical treatment. (Ex. M to SOAF
[139-5] at 2675.) The Grievance Officer’s Report privately noted, in response to this complaint,
that Baker “has been approved but no date yet.” (Id.) Then, on September 23, Dr. Obaisi appears
to have seen Baker after Baker had a seizure; at that appointment, Dr. Obaisi increased the dose
of an anti-seizure medication. (IDOC Medical Records at 2135). And in a portion of the note
recounting Baker’s requests during that appointment, Obaisi acknowledges that “offender . . . has
not been called for ortho consult previously approved [for his] ganglion” cyst. (Id.) Baker would
also claim in his deposition that, at this appointment, Obaisi “picked up the phone and called
somebody because he said he didn't understand why they didn't ever send me out. . . . I don't
know what transpired on the telephone or what happened or none of th[ose] things, I don't know,
but he picked up the phone and called somebody.” (Baker Dep. at 206:5–16.)
8
However, non-action continued.
Plaintiff wrote Stateville’s Assistant Warden of
Operations, Nicholas Lamb, on October 14, 2015, to complain that he was “being denied medical
treatment” because “for over a year now I have had this cyst on my wrist that has to be surgically
removed” and that “I was finally approved for the outside hospital in . . . 2015 . . . and I still haven’t
been sent to get this cyst removed.” (Ex. N to SOAF [139-5] at 2677.) He continued, noting that
he “sit[s] around all day in pain because nobody here at the jail even followed up with ‘UIC’ to
make me an appointment.” (Id.) Then, in a letter dated November 2, the Warden wrote Baker
that “[y]ou have been approved for an outside evaluation” and that “another request for a date
has been made recently. Once a date has been scheduled you will be taken to that evaluation.”
(Ex. O to SOAF [139-5] at 2679.)
It is unclear whether Lamb’s reference to “another request” referred to the call Obaisi
allegedly made after Baker’s September 23 appointment or something else. Plaintiff suggests,
instead, that the request for a date actually occurred in late October, after Warden Lamb received
Baker’s October 14th letter. Plaintiff appears to rely on some curious timing: as noted above, the
June 10, 2015 Wexford UM Unit document confirming approval of Baker’s hand-specialist
appointment appears to have been faxed somewhere months later, on October 28, 2015, right
after Baker complained to the Warden about not being scheduled for an appointment (on October
14) and before the Warden’s letter claiming that another appointment request had recently been
made (on November 2). (See Ex. L. to SOAF [139-4] at 2673 (the approval); Ex. N to SOAF [1395] at 2677 (Baker’s letter to the Warden); Ex. O to SOAF [139-5] at 2679 (the Warden’s
response).) There appears to be no evidence in the record that explains where such a document
might have been faxed that October, whether faxing would be the means by which an appointment
would be requested, or at whose direction the document was faxed. Nonetheless, inferring in
Plaintiff’s favor, the court notes that these documents could perhaps be read to suggest that the
relevant Stateville official responsible for requesting Plaintiff’s appointment—whether Dr. Obaisi
9
or somebody else—never did so after Obaisi (and Wexford) approved it in June, and only took
action in October, after Plaintiff’s entreaty to the Warden.
Even after November 2, however, Plaintiff continued to wait. He had an appointment with
Obaisi on November 17, 2015, in which he claimed in a later grievance he “made the medical
director aware that I am having the same problem and still haven’t been sent to the outside
hospital for treatment even though I was approved months ago.” (Ex. P to SOAF [139-5] at 2681.)
According to Baker, Obaisi responded by saying that Baker should have been sent to a specialist
and he would be seen shortly.
(Id.)
Additionally, in his doctor’s note memorializing that
appointment, Obaisi, for the first time, noted that something other than a ganglion cyst might be
the cause of Plaintiff’s pain—specifically, he wrote “tendinitis v. ganglion [cyst] . . . .” (Ex. DD to
SOAF [139-6] at 2842.)
Months continued to pass without progress. Plaintiff continued waiting for an appointment
for consultation with a hand specialist. (Ex. P to SOAF [139-5] at 2681.) So, when Plaintiff saw
Obaisi again on March 24, 2016, he yet again complained about the problem with his wrist and
the fact that, since June of the previous year, he had been approved but never scheduled for an
outside consultation. (Ex. 9 to DSOF [127-8] at 2137.) This time, Obaisi “made referrals to see
[an] orthopedic specialist[] on . . . March 29, 2016.” (DSOF ¶ 32.) And a Wexford UM record
indicates that, by March 30, 2016, an appointment was on the books:
3-30-2016: Received request for ortho eval. This p[atient] was previously
approved for a hand clinic evaluation at UIC in 6/2015. During collegial, Dr. Ritz
and Dr. Obaisi were informed that the p[atient] has an appointment with the hand
clinic at UIC on 7/27/2016. Dr. Ritz and Dr. Obaisi were okay with keeping this
appointment. P[atient] has a ganglion cyst on his R wrist. . . . AUTH FOR ORTHO
EVAL AT UIC . . . .
(Ex. R to SOAF [139-5] at 2686.) But it appears that no one shared this information with Plaintiff,
who wrote a grievance a month later stressing that he “was approved a year ago to go to the
outside hospital to see a hand-specialist to have this knot/cyst removed from off my wrist” and
that his “several grievances” and repeated complaints to prison officials had been ignored. (Ex.
10
S to SOAF [139-5] at 2688.) He claimed that “the Medical Director . . . has [not] given me any
follow-up appointments, or setup a date at ‘U.I.C.’ for me to see the hand specialist.” (Id. at 2688–
89.)
D.
Plaintiff Begins Receiving Specialty Care (July 2016)
At last, on July 26, 2016—over a year and a half after his November 2014 complaint to
Dr. Obaisi—Baker was taken to UIC for an appointment with Dr. Mark Gonzalez, an orthopedic
hand surgeon. 13 (DSOF ¶ 14.) In his doctor’s note, Gonzalez reported the following:
The patient is a 33-year-old male with history of right wrist pain for 2 years. He
visited an orthopedic surgeon last year [14] and he has been told that he has a right
wrist ganglion cyst. Nothing was recommended at the time, and the patient
continued to bear the pain. He rates his pain about 4–5 today. The pain is not
constant. It comes and goes, sometimes it wakes him up from sleep. . . .
An x-ray of the right wrist was obtained in the office today. . . . [N]o evidence for
fracture or dislocation.
The patient and Dr. Gonzales [sic] had an extensive discussion about the future
plan. The patient voiced understanding and agreement with the plan, which is to
proceed with physical therapy three times a week for a time of 8 weeks, and take
Aleve 400 mg [thrice daily] . . . for pain control and inflammation. The patient will
come back in the office for reevaluation in 6 months. The patient voiced
understanding and agreement with the plan.
(Ex. T to SOAF [139-5] at 2691–92.) Other than physical therapy, Dr. Gonzalez’s treatment plan
broadly resembled the care that Plaintiff had already received. In this vein, in his deposition,
Gonzalez explained that ganglion cysts are “benign and a lot of people leave them alone and do
fine with it.” (Gonzalez Dep. at 12:19–20.) He noted that he himself had had a ganglion cyst for
eighteen years, and that he would occasionally have the cyst drained and it would simply
resurface. (Id. at 12:13–17.) He clarified, however, that, though “a cyst can just be cosmetic and
most cases it is,” the story changes “[i]f they become painful . . . .” (Id. at 12:6–12.)
It is unclear from the record why the appointment occurred a day before the date
listed in the abovementioned Wexford document referencing the appointment.
13
14
fibroma.
Presumably, this refers to Dr. Keene, the podiatrist who saw Plaintiff for his foot
11
Plaintiff’s follow-up appointment with Gonzalez did not in fact occur within six months of
his July appointment, as Gonzalez had recommended. Instead, it took some seven months
before Plaintiff was approved for a follow-up appointment to be scheduled, and then another six
months before the appointment itself. (SOAF ¶¶ 25–26.) Both medical and legal developments
would occur in the interim.
E.
Plaintiff Files His Lawsuit and Gets Counsel (July 2016–January 2017)
Around the time of his July 26th appointment with Dr. Gonzalez, Plaintiff wrote his first
complaint in this case, alleging that he “has been approved to go to the outside hospital since
June 9, 2015 and nobody has sent me to ‘U.I.C.’ to see the hand specialist to have this knot/cyst
removed.” (Compl. [1] at 12.) The complaint—which was file-stamped on July 28, 2016, two days
after his appointment with Gonzalez—alleged deliberate indifference under 42 U.S.C. § 1983
against Dr. Obaisi and Dr. Martija, as well as numerous wardens and assistant wardens (both
former and current) at Stateville. (See id. at 1–3, 5.) Baker simultaneously filed a motion seeking
attorney representation (see Mot. for Attorney [4]), and the court recruited an attorney to represent
him on September 6, 2016 (Ord. [5] at 1). Around the same time, Plaintiff was still complaining
of wrist pain. (See Treister Rep. at 2590.)
A few months later, in early January 2017, Plaintiff’s counsel filed an amended complaint
naming Dr. Obaisi, Dr. Martija, and Victor Calloway (a former assistant warden at Stateville). (Am.
Compl. [24].) The amended complaint alleged specifically that “[f]rom November 2014 to July
2016,” the defendants were deliberately indifferent to Baker’s medical needs by delaying and
denying him care “despite knowledge of his serious medical condition.” (Id. ¶ 1.)
F.
Scheduling Plaintiff’s Follow-up Appointment at UIC and Treatment of his
Wrist (February 2017–April 2018)
In the winter of 2017, Plaintiff moved closer toward scheduling a second meeting with Dr.
Gonzalez. On February 16, 2017, Baker saw Dr. Obaisi for an appointment, and Obaisi wrote in
his notes that he would seek approval for the follow-up in a collegial review with a Wexford
12
physician. (Ex. U to SOAF [139-5] at 2695.) On February 21, Obaisi met with a Wexford
physician, noting that Baker had been seen six months earlier, and received Wexford’s approval
for the appointment. (Ex. V to SOAF [139-5] at 2697; Ex. W to SOAF [139-5] at 2699.)
Plaintiff was sent to UIC for his follow-up appointment with Dr. Gonzalez on August 15,
2017. (SOAF ¶ 26.) The appointment was similar to the first one, which had occurred more than
a year earlier, in that Gonzalez noted that Plaintiff reported “right wrist pain for the last 3 years,”
that “[h]e has seen an orthopedic surgeon previously and he was told he has a right wrist ganglion
cyst with nothing recommended at the time,” and that “he continues to have pain in the dorsum
of the wrist,” including “shooting pains,” significant enough to wake him from sleep. (Ex. W to
SOAF [139-5] at 2700–01.) Gonzalez also remarked that Plaintiff “reports there was a mass on
the dorsum of the wrist that does enlarge and shrink,” and that “[c]urrently, it is very small.” (Id.
at 2700.)
This time, Gonzalez prescribed a different course of treatment; he wrote that he “would
like [Baker] to obtain an MR arthrogram of the right wrist to evaluate possible causes to see if a
ganglion might be the cause.” 15 (Id. at 2701.) In his deposition, Gonzalez explained that “if I just
An arthrogram is “[i]maging of a joint following the introduction of a contrast agent
into the joint capsule to enhance visualization of the intraarticular structures.” Stedmans Medical
Dictionary 75970, Westlaw (database updated Nov. 2014). The parties do not describe what
“MR” refers to, but it appears that Plaintff had an arthrogram of the wrist as well as an MRI. (See
Treister Rep. at 2590 (noting that “[a]n MRI was made on the same day” as the arthrogram).)
More specifically, Dr. Goldberg, Defendant’s expert, explained the procedure the following way:
15
So there's two things that the injection of dye does when you do an arthrogram.
One, you're still getting an MRI. So you're still getting the MRI. And then you inject
the dye. And the dye both is injected into a space and you see if it transverses or
flows into other spaces that it shouldn't be in, like a TFCC [triangular fibro-cartilage
complex] tear. Or it outlines other structures that you can't see. So now you're
looking at a negative image. So the contrast around the ligament now defines the
ligament in -- if you will, if you're looking at a negative image, so you now see this
space that should be ligament that's thickened. You're not actually seeing the
ligament itself. You're seeing the shape of the ligament because the dye has
bathed the ligament. So it gives another level of information on the tissues that
aren't specifically defined by the MRI.
13
want to look for a ganglion, I would not get an arthrogram,” and that the arthrogram’s usefulness
would extend beyond identifying types of cysts to “looking for [intra-articular] pathology.”
(Gonzalez Dep. at 26:11–19.)
In late December 2017, as Baker awaited his arthrogram (and as discovery in this lawsuit
was ongoing), Dr. Obaisi died. (Suggestion of Death of Saleh Obaisi, M.D. Upon the Record
Pursuant to Fed. R. Civ. P. 25(A)(1) [64].) And on January 17th, 2018, just weeks later, Baker
had the MR-arthrogram. (Ex. X to SOAF [139-5] at 2703–06.) The procedure turned up more
problems than a simple ganglion cyst. According to Dr. Treister, Plaintiff’s expert, the procedure
showed: a two-centimeter ganglion cyst; 16 a “cyst in the radial aspect of the carpal lunate bone
(near the scapho-lunate junction)”; a “[p]artial tearing of the scapho-lunate ligament”; a “[p]artial
tearing of the . . . triangular fibro-cartilage complex”; “[p]artial cartilage loss . . . of the proximal
pole of the scaphoid bone”; “[e]xtensive synovitis in the right wrist and inter-carpal joint areas”;
“[c]omplete articular cartilage loss in the scapho-trapezial joint”; and “a longer than usual distal
ulna . . . .” (SOAF ¶ 29.) Dr. Gonzalez testified that Plaintiff’s two-centimeter cyst was “[p]retty
big” in comparison to others he had seen. (Gonzalez Dep. at 65:3–18.) But the arthrogram
revealed a mixture of problems plaguing Plaintiff’s wrist, including partial ligament tears, cartilage
loss, synovitis (that is, “inflammatory tissue”), and a cyst. (See Gonzalez Dep. at 54:20–62:3
(describing findings and speculating that Plaintiff’s wrist pain was probably largely caused by the
scapho-lunate ligament tear and nearby cartilage loss).
Plaintiff’s wrist thus suffered from more significant issues than the ganglion cyst Dr. Obaisi
and others had assumed was the cause of his pain. According to Dr. Treister, Plaintiff’s expert,
the arthrogram disclosed a “considerable right wrist pathology in the wrist joint, around the
(Goldberg Dep. at 56:6–23.)
In one instance, Treister’s report erroneously refers to the cyst as being one
centimeter, while radiologist notes and other portions of Treister’s report describe the cyst as
being two centimeters large. (Compare Treister Rep. at 2586–87, with Ex. X to SOAF at 2706.)
16
14
scaphoid, lunate, and trapezoid bones, and an associated large synovial cyst (ganglion), very
likely secondary to the aforementioned wrist pathologies, on the volar aspect of the wrist joint.”
(Treister Rep. at 2590.) The “bulk of th[is] pathology hides out of clinical sight” and is thus only
visible with arthrograms and other similar procedures. (Id.) Elaborating, Treister concluded that
the “observed [ganglion] cyst . . . clinically was the ‘tip of the iceberg,’” and that the “cause of wrist
pain in Mr. Baker was, much more likely than not, from the extensive pathology deep in his wrist
and not from the size-variable easily observed and superficial protruding dorsal extension of the
deeper synovial cyst . . . .”
(Id. at 2591.)
Treister characterized these pathologies as
“osteoarthritis.” (Id. at 2588.)
At a follow-up appointment in March 2018, after Baker’s arthrogram, Dr. Gonzalez
recommended that Baker undergo a “right wrist arthroscopy 17 in April” to investigate and address
the assortment of wrist problems observed during the procedure. (Ex. Z to SOAF [139-5] at 2713;
SOAF ¶ 30.) Gonzalez told Baker at that appointment that they would “likely repair the TFCC
[triangular fibro-cartilage complex],” as well as the “scapholunate ligament.” (Ex. Z to SOAF [1395] at 2713.) Though they would “begin arthroscopically,” Gonzalez told Baker that he “may need
to have an arthrotomy 18 and open repairs of some of these things” down the road. (Id.) And
Gonzalez warned Baker that, though the procedure would be beneficial, “he may not get 100%
pain relief from the procedure,” largely due to potentially permanent “scaphoid cartilage damage
. . . .” (Id.)
The procedure occurred on April 26, 2018. (Ex. Y to SOAF [139-5] at 2709.) Exploring
Baker’s wrist, Gonzalez discovered “some synovitis throughout the entire wrist,” including near
An arthroscopy is an “[e]ndoscopic examination of the interior of a joint.” Stedmans
Medical Dictionary 76380, Westlaw (database updated Nov. 2014). In his deposition, Dr.
Gonzalez explained that “arthroscopy is just a look at the inside technically,” but that during the
procedure, “if there’s something that surgically we can do to fix things, debride things, to treat it,
we would go ahead and do that simultaneously.” (Gonzalez Dep. at 33:23–34:14.)
17
An arthrotomy is a procedure involving “[c]utting into a joint to expose its interior.”
Stedmans Medical Dictionary 76450, Westlaw (database updated Nov. 2014).
18
15
the “TFCC,” as well as “fraying of the scapholunate ligament” and “some cartilage loss in the
proximal pole.” (Id.) In response, Gonzalez and the surgical team “inserted [a] shaver and
debrided the scapholunate ligament partial tear,” and also “debrided some of the scaphoid
cartilage and . . . debrided the TFCC until synovitis was clear.” (Id. at 2710.) They also drained
“excess fluid from the joint.” (Id.) According to Plaintiff’s expert, “much of Mr. Baker’s right wrist
pain abated after the arthroscopic intervention at” UIC. (Treister Rep. at 2591.)
G.
Contemporaneous Litigation Developments (2018–Present)
As Baker’s wrist healed, this litigation continued. The parties stipulated to Calloway’s
dismissal in June of 2018. (Minute Entry [81].) Near the end of that month, the court granted
Plaintiff’s motion to substitute Ghaliah Obaisi, the Independent Executor of Dr. Obaisi’s estate, as
Defendant (see Ord. [90]), and discovery was completed during the summer of 2019 (see Minute
Entry [109]). Then, in August 2019, the parties entered two additional stipulations. The first was
that “Plaintiff will not assert, as a basis for liability, that Dr. Obaisi’s failure to send medical records
to Plaintiff’s treating physicians at the University of Illinois Medical Center constituted deliberate
indifference to Plaintiff’s serious medical needs.”
(Stipulation Regarding Pl.’s Deliberate
Indifference Claim [112].) The second was a stipulation dismissing Dr. Martija from the suit.
(Stipulation of Voluntary Dismissal of Def. Alma Martija, M.D. Pursuant to FED. R. CIV. P.
41(a)(1)(A)(ii) [113].)
Defendant filed the motion for summary judgment at issue here on
September 9, 2019. (Mot. by Def. Ghalia Obaisi for Summ. J. [119].)
II.
Expert Reports
Both parties hired medical experts to opine on Mr. Baker’s condition and the treatment he
received between 2014 and 2018. Because disputes concerning their conclusions occupy a
significant amount of space in the briefing, the court (briefly) recounts each expert’s take on
Baker’s wrist condition and how it was treated.
Dr. Michael Treister, Plaintiff’s expert, is a board-certified orthopedic and hand surgeon.
(Treister Rep. at 2585.) Treister opined that Baker’s osteoarthritis was “more likely than not
16
present as of November 2014 when Mr. Baker first began complaining of severe pain in his right
wrist.” (Id. at 2588.) And according to Treister, the condition deteriorated “exponentially,” causing
worse symptoms, including severe pain, and thus rendering delays in Baker’s treatment
consequential in exacerbating his condition. (Id. at 2588, 2592.) Because the condition was
progressive, Treister also concluded that Baker was “likely to have future problems with his right
wrist” notwithstanding the “significant relief” he felt after his 2018 surgery. (Id. at 2592.)
Treister also drew on Plaintiff’s medical records, grievances, and other evidence to opine
on—and broadly criticize—the treatment Plaintiff received. Treister opined that Obaisi’s medical
treatment fell “below the acceptable standards of medical care,” in his alleged altercation with
Plaintiff in November 2014, in his failure to investigate the cause of Plaintiff’s wrist pain more
seriously, and in his delays in getting Plaintiff to see a specialist. (Id. at 2588, 2591–93; DSOF ¶
20.) In sum, Treister claimed that, save for the occasional use of anti-inflammatories, “Mr. Baker
had no reasonable medical care for the conditions which existed in his right wrist” for the long
period before Plaintiff began seeing Dr. Gonzalez. (Id. at 2592; Treister Dep. at 304:15–18
(admitting that the phrase “no reasonable care” was “a little bit of an error” because antiinflammatory drugs were not inappropriate prescriptions).) Treister, however, did not ascribe
malicious intent to Obaisi. (DSOF ¶ 21.) He also agreed at turns that the prescription of
medications was a reasonable—if partial—way to address Plaintiff’s pain. (Id. ¶¶ 9, 12, 16.)
Predictably, Defendant’s expert—Dr. Bruce J. Goldberg, also an orthopedic surgeon—
drew different conclusions. (Ex. 6 to DSOF (hereinafter “Goldberg Rep.”) [127-7] at 2092.) For
one, Goldberg downplayed the severity of Baker’s wrist condition. To Goldberg, Baker’s wrist
condition simply was “not an urgent or emergent condition that requires treatment” because most
ganglion cysts are harmless.
(Id. at 2099.)
When asked during his deposition about the
significance of Obaisi’s noting, in November 2015, the possibility Baker had either a ganglion cyst
or tendinitis, Goldberg observed that tendinitis, too, is a non-urgent condition that could be treated
with “activity modification, simple medications, perhaps a brace or a cast . . . to immobilize the
17
wrist . . . .” (Goldberg Dep. at 51:11–17; DSOF ¶ 62.) 19 In other words, Baker’s wrist condition
“at no time presented a serious risk of harm to Mr. Baker,” and “any pain he may have been
experiencing was well controlled at all times” by pain medications. (Goldberg Rep. at 2099.)
Goldberg also disputed the extent (and regularity) of Plaintiff’s pain and Treister’s conclusion that
his osteoarthritis was present as of 2014. (Id. at 2095, 2099.)
Goldberg also had little if anything critical to say about the treatment Baker received. In
Goldberg’s view, Dr. Obaisi and other Stateville doctors met the standard of care by prescribing
the various pain medications they gave Plaintiff and by largely observing the cyst and seeing
whether it resolved over time. (Id. at 2095, 2097.) Nor, in Goldberg’s view, was there any
indication “that Mr. Baker required any form of advanced imaging” prior to receiving the
arthrogram in August 2017, let alone that he required such imaging urgently. (Id. at 2095–96.) In
drawing this conclusion, Goldberg stressed that Dr. Gonzalez—an orthopedic surgeon trained in
hand surgery—himself did not order these tests during Baker’s first appointment with him in July
2016. (Id.) To Goldberg, Dr. Obaisi had no reason to “suspect” from 2013 until his death in 2017
that Baker suffered from the pathologies discovered once these tests were done. (Id.) And finally,
Goldberg concluded that delays in Baker’s seeing a specialist was neither consequential nor was
it the fault of Obaisi or the Stateville officials. Dr. Goldberg asserted that he saw “no medical
evidence that Wexford Health Sources, Inc ever delayed or denied specialty care” and instead
claimed that “[s]cheduling was done by UIC.” (Id. at 2099.) And he concluded that “[t]here is no
medical evidence any perceived delay in orthopedic referral, advanced imaging or surgical
intervention caused, contributed to or exacerbated Mr. Baker’s intra-articular pathology.” (Id. at
2097, 2098.)
As far as the court can tell, Dr. Obaisi never immobilized Plaintiff’s wrist or
otherwise instructed him to modify his activity.
19
18
DISCUSSION
I.
Legal Standard
A court may 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 dispute is genuine “‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party,’” Lord v. Beahm, 952 F.3d 902, 903 (7th Cir. 2020) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)), and the substantive law dictates which
facts are material, Anderson, 477 U.S. at 248. In deciding whether to grant summary judgment,
the court must “construe the record in the light most favorable to the nonmovant and avoid the
temptation to decide which party's version of the facts is more likely true.” Miller v. Gonzalez, 761
F.3d 822, 827 (7th Cir. 2014) (citing Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009–10 (7th
Cir.1999)). Both the moving and nonmoving parties may raise objections “that the material cited
to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
FED. R. CIV. P. 56(c)(2).
II.
Preliminary Issues
Before turning to the merits of Plaintiff’s deliberate indifference claim, the court addresses
several ancillary issues Defendant raised in briefing.
A.
How Dr. Obaisi’s Death Affects Plaintiff’s Case
Defendant argues that Obaisi’s death impacts this case in two ways: First, though the
briefing is not entirely clear, Defendant appears to argue that Obaisi cannot be liable for any of
Plaintiff’s future wrist-related medical needs that post-date Obaisi’s passing. (Mem. by Ghaliah
Obaisi in Supp. of Summ. J. (hereinafter “MSJ”) [128] at 2–3; Reply by Ghaliah Obaisi to Mem. in
Supp. of Motion (hereinafter “Reply”) [148] at 8.) Second, Defendant argues that Plaintiff cannot
seek punitive damages against Obaisi’s estate. (MSJ at 15.) As discussed below, the court
rejects the former argument but accepts the latter.
19
1.
Liability for Post-Mortem Harm
In support of summary judgment, Defendant argues that “[a]ny claimed violation of inmate
Baker’s rights was extinguished upon Dr. Obaisi[’s] death on December 23, 2017.” (MSJ at 2.)
Elaborating, Defendant claims that the violation of a prisoner’s rights “can only continue for as
long as the defendant has the power to do something about the prisoner’s condition.” (Id. (citing
Heard v. Sheehan, 253 F.3d 316, 318 (7th Cir. 2001)).) Though the briefing is unclear, as best
as the court can tell, Defendant appears to be making an argument about damages—essentially
claiming that Obaisi’s death prevents his estate from being held liable for any harm that Plaintiff
suffered related to the wrist injury after December 23, 2017. (See Reply at 8.)
Section 1983 allows a plaintiff to recover damages proximately caused by the defendant’s
wrongdoing. Henderson v. Sheahan, 196 F.3d 839, 848 (7th Cir. 1999) (“Ordinarily, to obtain an
award of compensatory monetary damages under § 1983, a plaintiff must demonstrate both that
he has suffered an ‘actual’ present injury and that there is a causal connection between that injury
and the deprivation of a constitutionally protected right caused by a defendant.”) Accordingly, in
this case, Obaisi can be liable for harm caused by actions he took while alive, even if he was not
there to see the damage he had done. To the extent that Obaisi’s treatment decisions and delay
caused Plaintiff’s pain and the exacerbated wrist injury discovered during his 2018 surgery, he
can be liable notwithstanding his death. In this sense, Defendant’s argument misses the mark.
One caveat bears mentioning. Plaintiffs may not receive damages for a mere “increased
risk of incurring a future serious injury caused by a defendant’s deliberate indifference to that risk
. . . .” Id. This principle applies to situations as in Henderson where the defendant exposed the
plaintiff to a toxin (there, secondhand smoke), which increased the risk that the plaintiff might
develop a disease down the road. Id. at 848–49. This case is not like those cases; Plaintiff’s
claim is that Obaisi’s deliberate indifference exacerbated his wrist pathology such that he required
greater surgical intervention than otherwise would have been required and also extended the
duration of his wrist pain. Those harms already exist, and a jury might find that they were
20
proximately caused by Obaisi’s actions in the years before his death. Obaisi’s death thus has no
obvious effect on Plaintiff’s compensatory damages recovery.
2.
The Availability of Punitive Damages
The conclusion differs with respect to punitive damages: punitive damages are
recoverable under Section 1983 “even in the absence of actual damages where the jury
concludes that the defendant’s conduct was ‘motivated by evil intent or involv[ed] reckless or
callous indifference to the federally-protected rights of others.’” Siebert v. Severino, 256 F.3d
648, 655 (7th Cir. 2001) (quoting Erwin v. County of Manitowoc, 872 F.2d 1292, 1299 (7th
Cir.1989)). The purpose of awarding punitive damages is to “punish [the defendant] for his
outrageous conduct,” as well as to “deter him and others like him from similar conduct in the
future.” Heidelberg v. Manias, 503 F. Supp. 3d 758, 800 (C.D. Ill. 2020) (quoting Smith v. Wade,
461 U.S. 30, 54 (1983) (alteration in original)).
But as Defendant observes, punitive damages are ordinarily no longer available when the
wrongdoer has died. When a defendant is deceased, imposing punitive damages does not serve
the ends of punishment or deterrence. See Flournoy v. Est. of Obaisi, No. 17 CV 7994, 2020 WL
5593284, at *14 (N.D. Ill. Sept. 18, 2020) (refusing to allow punitive damages in similar situation,
as “imposing punitive damages on Obaisi's estate would not serve” the ends of unique
punishment and individual deterrence); Heidelberg, 503 F. Supp. 3d at 800 (collecting cases
drawing the same conclusion). Plaintiff stresses that other doctors may be deterred by the
imposition of punitive damages here, and stresses that “compensation and deterrence” are
prominent purposes of § 1983 litigation. (Resp. by Dwayne Baker in Opp. to Mot. by Def. Ghaliah
Obaisi for Summ. J. (hereinafter “Pl.’s Resp. – MSJ) [135] at 19–20 (quoting City of Newport v.
Fact Concerts, Inc., 453 U.S. 247, 267–68 (1981)).) But “other forms of deterrence already exist
to prevent state officials from committing constitutional torts,” including the possibility of liability
and the commitment that most such officials have to their public duties. Kahlily v. Francis, No. 08
C 1515, 2008 WL 5244596, at *6 (N.D. Ill. Dec. 16, 2008).
21
In other words, the court is not convinced that imposing punitive damages on a deceased
doctor’s estate is justified merely because there is some theoretical possibility that, down the road,
it might dissuade a different prison doctor considering maliciously inflicting pain on a prisoner.
Accordingly, the court grants summary judgment to Defendant on the question of punitive
damages.
B.
Admissibility of the Lippert Reports
In his summary judgment opposition, Plaintiff relies in part on two expert reports (the
“Lippert Reports”) generated in a separate case, Lippert v. Ghosh, No. 10-cv-4603, Dkt. Nos. 339
& 767-5. The reports were generated pursuant to the parties’ agreement in that case to have an
independent expert “determin[e] whether [IDOC] is providing health care services to the offenders
in its custody that meet the minimum constitutional standards of adequacy.” Id. Dkt. No. 244.
The resulting reports were highly critical of both Dr. Obaisi specifically and Stateville’s medical
care more generally. For example, the first report concluded that Obaisi’s “primary care skills”
appeared to be “not up to date” and that he “d[id] not provide clinical oversight for [Stateville’s]
program.” (Ex. FF to SOAF [139-7] at 2927, 2930.) The second report found that Stateville
physicians were frequently ignorant of care guidelines for common medical problems, took
inadequate histories for patients, and performed inadequate physical exams. (Ex. GG to SOAF
[139-8] at 2972.) It found that specialty care at UIC was often untimely. (Id.) It also concluded
that, “[b]ased on record reviews, the quality of physician care, particularly care provided by the
recently deceased Medical Director [Obaisi], was substandard,” in part due to his being a surgeon
and “not appear[ing] to know how to manage many primary care problems, resulting in harm to
patients.” (Id. at 2976.)
Defendant argues that these reports would be inadmissible at trial and therefore cannot
be treated as evidence at summary judgment. The court agrees, at least at this stage of the
proceedings. In deciding a motion for summary judgment, the court may only consider evidence
that “would be admissible at trial,” either in form or substance. Wheatley, 826 F.3d at 420.
22
Therefore, Plaintiff may rely on the Lippert Reports in opposing summary judgment only if those
reports would be admissible at trial.
On that score, the Seventh Circuit has explicitly held that the Lippert reports are
inadmissible hearsay when introduced to prove the truth of their allegations, because they are not
authenticated, they are not public records, and the residual hearsay exception does not permit
their admission. Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 522 (7th Cir. 2019).
Indeed, it appears from the court’s research that every court to have considered the matter has
refused to admit these reports. Boyce v. Wexford Health Sources, Inc., No. 15 C 7580, 2017 WL
1436963, at *5 (N.D. Ill. Apr. 24, 2017) (collecting cases).
In this case, too, the Lippert Reports are hearsay (Plaintiff offers the reports’ allegations
about Obaisi’s poor medical care and other medical-care failures at Stateville for their truth), and
the reports do not fall within the exception for “public records” under Rule 803(8), or to any other
recognized exception to the hearsay rule. See Mathis v. Carter, No. 13 C 8024, 2017 WL 56631,
at *4–5 (N.D. Ill. Jan. 5, 2017) (finding that Lippert Report did not fall within the public records
exception because it was not a “record or statement of a public office”).
Plaintiff tacitly acknowledges as much by arguing that the Lippert Reports, even if
inadmissible hearsay, can nonetheless be considered because Plaintiff’s expert relied on them in
drawing his conclusions. True, the Federal Rules of Evidence allow experts to rely on otherwise
inadmissible evidence in drawing their conclusions “[i]f experts in the particular field would
reasonably rely on those kinds of facts or data” to inform their conclusions. FED. R. EVID. 703.
However, when the evidence on which an expert reasonably relies is otherwise inadmissible, “the
proponent of the opinion may disclose them to the jury only if their probative value in helping the
jury evaluate the opinion substantially outweighs their prejudicial effect.” Id. And as Defendant
points out, even in these latter cases, “the judge must make sure that the expert isn't being used
as a vehicle for circumventing the rules of evidence.” Matter of James Wilson Assocs., 965 F.2d
160, 173 (7th Cir. 1992) (citing Gong v. Hirsch, 913 F.2d 1269, 1272–73 (7th Cir.1990)).
23
In this case, to help a jury evaluate his opinion, it may be that Dr. Treister could offer
testimony that relies on certain parts of the Lippert Reports. But to admit the entire reports on
this basis—let alone the list of the reports’ conclusions Plaintiff seeks to introduce at this stage—
would fall far closer to the impermissible practice of using Rule 703 as a backdoor to sneak
inadmissible evidence into a trial. For this reason, the court avoids discussing them at this stage
and will defer ruling on whether any portions of the reports are admissible at trial. With these
preliminary issues addressed, the court turns to the meat of the parties’ dispute.
III.
Baker’s Deliberate Indifference Claim
Prison officials’ “deliberate indifference to serious medical needs of prisoners” violates the
Eighth Amendment and thus “states a cause of action under § 1983.” Estelle v. Gamble, 429
U.S. 97, 104–05 (1976). Not “every claim by a prisoner that he has not received adequate medical
treatment” rises to the level of a constitutional violation, however. Id. Instead, courts perform a
two-step test to determine whether the plaintiff has proven deliberate indifference in violation of
the Eighth Amendment: first, whether “plaintiff suffered from an objectively serious medical
condition”; and second, “whether the individual defendant was deliberately indifferent to that
condition.” Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016), as amended (Aug. 25, 2016)
(citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). While the former prong of the test is
objective, the latter prong revolves around the defendant’s “subjective state of mind.” Id. at 728.
Defendant does not dispute that Plaintiff suffered from an objectively serious medical
condition. (See Reply at 3 (“Plaintiff goes on for fourteen pages restating facts and arguing the
undisputed position that Plaintiff’s medical condition was objectively serious.”) Accordingly, the
court focuses on the second, subjective prong of the deliberate indifference test.
To establish the subjective element of a deliberate indifference claim, a plaintiff must show
that the defendant “knew of facts from which he could infer that a substantial risk of serious harm
existed, and that he did, in fact, draw that inference.” Walker v. Wexford Health Sources, Inc.,
940 F.3d 954, 964 (7th Cir. 2019) (citing Farmer, 511 U.S. at 837). Put differently, a plaintiff must
24
prove that the defendant “actually knew of and disregarded a substantial risk of harm.” Petties,
836 F.3d at 728 (emphasis in original). Accordingly, though “a plaintiff does not need to show
that the official intended harm or believed that harm would occur” to meet this standard, a showing
of “mere negligence is not enough.” Id.
Though this is a high bar, the Seventh Circuit has pointed out “[t]he difficulty . . . that except
in the most egregious cases, plaintiffs generally lack direct evidence of actual knowledge.” Id.
This means that “[m]ost cases turn on circumstantial evidence, often originating in a doctor's
failure to conform to basic standards of care.” Id. Such circumstantial evidence can include:
the obviousness of the risk, the defendant's persistence in a course of treatment
known to be ineffective, or proof that the defendant's treatment decision departed
so radically from accepted professional judgment, practice, or standards that a jury
may reasonably infer that the decision was not based on professional judgment.
Thomas v. Martija, 991 F.3d 763, 768 (7th Cir. 2021) (quoting Davis v. Kayira, 938 F.3d 910, 915
(7th Cir. 2019)). Furthermore, “inexplicable delays in treatment where the delays serve no
penological purpose” can serve as circumstantial evidence of deliberate indifference. Mitchell v.
Kallas, 895 F.3d 492, 498 (7th Cir. 2018) (citing Petties, 836 F.3d at 730).
Defendant makes three main arguments in support of summary judgment: first, that
Obaisi rendered adequate care to Plaintiff; second, that even if the care he provided was substandard, evidence in the record at most implied that it was negligent as opposed to deliberately
indifferent; and third, that any delays in Plaintiff’s seeing a hand specialist were not Obaisi’s fault.
Plaintiff contends there are disputes of fact on all of these issues. He stresses, first, that
Obaisi openly expressed deliberate indifference through his statements to Plaintiff at their
November 2014 appointment; and second, that there remain factual disputes about whether
Obaisi knowingly (and unnecessarily) delayed Plaintiff’s visits to a specialist in the face of clear
evidence that alternative treatment methods were not relieving his pain.
25
A.
The November 2014 Appointment
“A prison official's decision to ignore a request for medical assistance” is the “most
obvious” circumstance evincing deliberate indifference. Id. at 729 (citing Estelle, 429 U.S. at 104–
05).
This includes ignoring or otherwise not treating a prisoner such that “he experience[s]
prolonged, unnecessary pain as a result of a readily treatable condition.” Gomez v. Randle, 680
F.3d 859, 865–66 (7th Cir. 2012) (reversing dismissal of deliberate indifference claim where
doctors promised to provide medical supplies to prisoner who had a wound he worried would get
infected, but did not give him that treatment until four days later).
Plaintiff has offered evidence that his requests were ignored. First, he testified, consistent
with assertions he made in contemporary grievances, that during his November 2014 appointment
with Dr. Obaisi, Obaisi kicked him out of the appointment without examining or providing pain
medication for Plaintiff’s wrist, and said some variant of “fuck your wrist and you.” (November
2014 Grievance at 2323; see also Baker Dep. at 58:1–7, 103:1–2.) Defendant disputes this, but
Dr. Obaisi himself is no longer alive, and Baker’s testimony, however implausible it may be, is
unrebutted. If Dr. Obaisi did make the comments attributed to him, such language is an explicit
invocation of deliberate indifference—a rarity in such litigation. See Petties, 836 F.3d at 728
(“Rarely if ever will an official declare, ‘I knew this would probably harm you, and I did it anyway!’”).
Moreover, a reasonable jury could pair evidence of this alleged statement with other record
evidence to find that Obaisi deliberately ignored Plaintiff’s wrist condition despite knowing that
Plaintiff was in serious pain. Plaintiff reports he complained about his wrist pain during that
appointment. (See November 2014 Grievance at 2323–24.) And there is evidence that Plaintiff
had seen Obaisi complaining of wrist pain at least twice before this November appointment in
2013 and 2014. So, even if Obaisi later treated Plaintiff appropriately, and even if “this delay did
not exacerbate [Plaintiff’s] injury,” a jury could reasonably conclude that by refusing to treat him
at that appointment—with no apparent follow-up for months—Obaisi knowingly prolonged
Plaintiff’s pain. See Gomez, 680 F.3d at 865–66; see also Conley v. Birch, 796 F.3d 742, 747
26
(7th Cir. 2015) (reversing grant of summary judgment where doctor prescribed plaintiff ibuprofen
for multiple days before she returned from vacation, with the knowledge that his hand was in
serious pain and potentially broken). In other words, the evidence of Plaintiff’s past appointments
for wrist pain in 2013 and 2014, paired with Obaisi’s comment and refusal to treat him in
November 2014, could lead a jury to conclude that Obaisi knew Plaintiff was in pain and
deliberately ignored it.
B.
Obaisi’s Delays
In addition to Obaisi’s comments during their November 2014 appointment, Plaintiff points
to two periods during which he alleges Obaisi delayed referring him to a specialist while knowing
that Plaintiff harbored a serious medical condition in his wrist. First, Plaintiff points to the eightmonth gap between November 2014 and June 2015, at which point Obaisi approved him to see
a hand specialist. Secondly, Plaintiff points to the fact that he waited more than a year after that
approval before actually seeing Dr. Gonzalez in July 2016, and then experienced more delays
before a follow-up appointment with Dr. Gonzalez. Slightly different issues arise concerning each
delay, as set forth below.
Circumstantial evidence of deliberate indifference can arise when “a prison official persists
in a course of treatment known to be ineffective.” Petties, 836 F.3d at 729–30 (citing Walker v.
Peters, 233 F.3d 494, 499 (7th Cir. 2000)). This includes when “a prison doctor chooses an
‘easier and less efficacious treatment’ without exercising professional judgment . . . .” Id. (quoting
Estelle, 429 U.S. at 104 n.10). A jury may also rely on context clues to determine whether a
doctor knew that he was providing “deficient treatment,” including “evidence that the patient
repeatedly complained of enduring pain with no modifications in care . . . .” (Id. at 726, 731.) As
one such failure to modify care, an “ ‘inexplicable delay’ in responding to an inmate’s serious
medical condition can reflect deliberate indifference.” Goodloe v. Sood, 947 F.3d 1026, 1031 (7th
Cir. 2020) (quoting Petties, 836 F.3d at 731).
This is “especially” true when “that delay
exacerbates an inmate’s medical condition or unnecessarily prolongs suffering.”
27
Id. (citing
Williams v. Liefer, 491 F.3d 710, 715–16 (7th Cir. 2007)). Accordingly, the court must deny
summary judgment if there is direct or circumstantial evidence from which a jury could reasonably
conclude that Obaisi, knowing of the risk of harm to Baker, delayed approving or sending him to
a specialist, and that this delay prolonged Baker’s pain or exacerbated his wrist condition. The
court discusses two potentially relevant delays below.
1.
Delay in Approving a Specialist Appointment
Plaintiff complained of serious pain both before and after his November 2014 appointment.
He complained of wrist pain to Dr. Martija in January 2015, and wrote a letter to Obaisi that same
day stating that “I really need to see you right away cause I lay around in pain 24/7” as a result of
his wrist and foot problems. (Ex. E to SOAF at 2580.) The pain was significant enough to wake
him from sleep, keep him from picking things up or bending his hand, and from extensive
handwriting, and he noted that he had “no type of pain meds to even try and relieve some of this
pain . . . .” (Id.) Around that time, he also requested that he receive an MRI to determine the
cause of his wrist pain. (Goldberg Rep. at 2095.) And soon after, in mid-March, Dr. Keene—the
outside specialist Plaintiff saw for his foot—recommended that Plaintiff be referred to a hand
specialist. (SOAF ¶¶ 8–10.)
There is evidence that Obaisi ignored that recommendation and appears to have done
nothing for Plaintiff’s wrist pain between November 2014 and March 23, 2015, when he prescribed
Plaintiff Mobic for ninety days.
(DSOF ¶ 7.)
And it was not until June, after Dr. Keene
recommended for a second time that Plaintiff see a hand specialist, that Obaisi finally approved
the referral. Inferring in Plaintiff’s favor, a reasonable jury could conclude that Obaisi knew that
Plaintiff’s wrist was causing him enough pain to keep him up at night and prevent him from doing
numerous quotidian tasks, yet not only refused to prescribe pain medication for months, but also
ignored repeated requests for additional care (Plaintiff’s own request for an MRI and Dr. Keene’s
recommendation).
28
Thomas v. Martija, a recent and similar case, proves instructive. There, a prisoner,
Michael Thomas, had broken his hand in 2011 and, for years, had been given a “low bunk” permit
to keep him from incurring hand pain when climbing into a high bunk to sleep. 991 F.3d at 766–
67. After that permit expired in August 2014, Thomas met with Stateville doctors in October 2014
and both “asked them to renew the low-bunk permit” and “submitted formal requests through the
prison’s grievance system for a referral to an orthopedic specialist for lingering complications from
the same hand injury.” Id. at 767. Thomas had an appointment in January 2015 with Dr. Obaisi
about a different medical issue, during which he repeated these hand-related requests, but Obaisi
neither renewed the permit nor referred him to a specialist until June 2015, five months later. Id.
Reversing a grant of summary judgment in favor of Obaisi, the Seventh Circuit noted that the
months-long delay “would allow a factfinder to conclude that Dr. Obaisi was aware of Thomas's
continuing pain from the hand and consciously and needlessly delayed both measures.” Id. at
769. Plaintiff Baker’s case maps well onto Thomas: as in that case, Plaintiff (and Dr. Keene)
requested specialty care or referrals, Plaintiff complained repeatedly of serious pain, and Obaisi
delayed both the prescription of pain medication and the referral to an outside specialist.
Of course, Obaisi’s treatment decisions and refusal to heed a podiatrist’s recommendation
of referral may well have been appropriate and considerate care. But there are genuine disputes
about this. A reasonable juror could pair Obaisi’s allegedly sluggish response to Plaintiff’s wrist
complaints with his alleged statement during their November 2014 appointment—“fuck your wrist
and you”—and conclude that Obaisi understood Plaintiff’s wrist condition was serious enough to
warrant intervention (either pain medication or specialty care) and nonetheless dragged his feet
for non-medical reasons. This use of circumstantial evidence—inferring that doctors’ earlier
statements infected their later actions—finds support in the caselaw. In Petties, for example, the
Seventh Circuit explained that a doctor’s statement that surgery would be “too expensive” could
reasonably support the inference that the same doctor’s later treatment decisions were “dictated
by cost . . . rather than medical judgment.” 836 F.3d at 733. The same principle applies here. A
29
jury could infer that, in the face of Plaintiff’s repeated complaints of severe pain, Obaisi’s monthslong delay in prescribing Mobic, or his even longer refusal to approve Plaintiff to see a specialist,
were dictated not by medical judgment but by animosity.
In sum, viewed in the light favorable to Plaintiff, there is evidence that Obaisi knew Plaintiff
harbored severe wrist pain and needed specialty care, but for non-medical reasons refused to
budge on his treatment regimen, unnecessarily prolonging Plaintiff’s pain. This is sufficient to
survive summary judgment.
2.
Delay in Scheduling Specialist Appointments
Finally, Plaintiff points to the delays in scheduling the first and second appointments with
Dr. Gonzalez after Obaisi’s June 2015 approval. Here, Plaintiff stresses that the Administrative
Directive concerning scheduling outside consultations for prisoners states that the Medical
Director “shall ensure services are scheduled and the course of treatment is initiated” once the
appointment is approved by Wexford’s UM Unit (which, for Plaintiff’s first appointment with Dr.
Gonzalez, occurred in June 2015). (IDOC Administrative Directive at 2717.) He also points out
that, between his June 2015 approval and his July 2016 appointment, Plaintiff repeatedly
complained about serious pain in his wrist, including in grievances, letters, or at appointments in
September, October, and November 2015, as well as March 2016. In November 2015, Obaisi
saw Plaintiff and recorded a doctor’s note suggesting that he understood tendinitis—as opposed
to a ganglion cyst—might be causing Plaintiff’s pain, but did not change his treatment regimen of
over-the-counter pain pills. Then, it was not until Plaintiff’s March 2016 complaint—after many
months of complaining of severe pain—that Obaisi scheduled him for the July appointment with
Dr. Gonzalez. Finally, Plaintiff notes that Obaisi appears to have ignored Dr. Gonzalez’s request
for a six-month follow-up after Baker’s first appointment with him in July 2016, instead failing to
even request the follow-up appointment until seven months later.
Drawing inferences in his favor, this evidence could support a finding that the delay
between June 2015 (his approval) and March 2016 (when his appointment was actually
30
scheduled, for July), was the product of knowing, deliberate indifference on Obaisi’s part. Again,
a recent case proves instructive. In Goodloe v. Sood, the Seventh Circuit reversed the district
court’s grant of summary judgment in a prison doctor’s favor where the doctor had “resorted not
to taking a step to be certain [the plaintiff] saw an outside specialist, but instead continued” a
topical treatment for the plaintiff’s rectal pain that plaintiff insisted “was providing no relief” for that
pain. 947 F.3d 1026, 1031 (7th Cir. 2020). In reaching this decision, the court stressed that
plaintiff had “complained in no uncertain terms” in a grievance he filed about his pain and the
ineffective nature of the treatment he was receiving, and that “[t]he complaint prompted no action,
no renewed effort to arrange for the outside consultation [the defendant doctor] had decided two
weeks earlier was medically necessary. A jury could find that there was no medical justification
for the delay.” Id. at 1032 (citing Petties, 836 F.3d at 730–31).
Here, similarly, Plaintiff repeatedly complained of pain and demanded that the prison make
good on his pre-approval to see a specialist. In September, he filed a grievance report about
being denied proper treatment, to which the Grievance Officer responded by acknowledging that
he “has been approved but no date yet.” (Ex. M to SOAF at 2675.) That date remained elusive;
Plaintiff complained again a month later in a letter to the warden, both about his pain, about the
need for surgery for his wrist, and that he had been approved for a specialist with no appointment
made. (Ex. N to SOAF at 2677.) Additionally, Obaisi appeared to recognize in November 2015
that Plaintiff’s painful wrist issue was possibly more complicated than a ganglion cyst, and yet no
official word of an appointment with a specialist appeared until after Plaintiff complained once
again in March of 2016. A jury could take the fact that these repeated requests and Obaisi’s
evolving understanding of Plaintiff’s wrist condition did not produce an appointment date—let
alone a prompt appointment date—as evidence that Obaisi did not make a genuine effort to
resolve Plaintiff’s suffering.
It is true, as Defendant argues, that there is some evidence that Obaisi did renew efforts
at scheduling Plaintiff’s appointment in response to his complaints. For example, Plaintiff testified
31
that he understood Obaisi made a “call” after their September 2015 appointment about scheduling
the specialty consult (Baker Dep. at 206:5–16); that the warden implied that a new “request” had
been made for the appointment after Plaintiff’s October letter (Ex. O to SOAF at 2679); and that
Obaisi told him that he should have been sent to the specialist and that the appointment would
happen soon (Ex. P to SOAF at 2681). But whether these efforts occurred or were genuine or
enough is a factual matter for a jury. See Thomas, 991 F.3d at 770–71 (in similar case concerning
delays in referrals and scheduling appointments, noting that “[a]ll this is to say that there are facts
that need to be resolved”).
C.
Defendant’s Counterarguments
Defendant argues that these factual disputes are insufficient to defeat summary judgment
for four reasons. The court explains below why it concludes otherwise.
1.
Whether Negligence is Dispositive
First, Defendant at times claims that the fact that Plaintiff’s expert concluded that Obaisi’s
care was merely negligent—as opposed to intentionally malicious—is “dispositive testimony” in
Defendant’s favor. (MSJ at 4–5.) In this vein, Defendant repeatedly stresses that Dr. Treister
refused to ascribe malicious intent to Obaisi, testifying “of course not” when asked in his
deposition whether Obaisi was “intentionally negligent.” (MSJ at 4; Reply at 2 (quoting Treister
Dep. at 303:2–5).)
Dr. Treister’s conclusion in this regard is significant. Much of his opinion would support a
conclusion that Dr. Obaisi was negligent and that the care he provided fell below acceptable
standards—but “plaintiffs must show more than mere evidence of malpractice to prove deliberate
indifference.” Petties, 836 F.3d at 728 (citing Estelle, 429 U.S. at 106). In other words, if Obaisi’s
care was merely sub-standard, it would not constitute deliberate indifference. That said, substandard care—care that could expose Obaisi to medical malpractice liability—may also “rise to
the level of deliberate indifference” if the circumstances show that Obaisi “did not just slip up, but
was aware of, and disregarded, a substantial risk of harm.” Petties, 836 F.3d at 728.
32
In any event, Treister is an expert on a physician’s treatment decisions, not his state of
mind; and other evidence in the record raises triable issues of fact as to whether Obaisi knew that
the care he was giving exposed Plaintiff to a serious risk of harm. The Seventh Circuit has
“rejected the notion that the provision of some care means the doctor provided medical treatment
which meets the basic requirements of the Eighth Amendment.” Arce v. Wexford Health Sources
Inc., 75 F.4th 673, 679 (7th Cir. 2023) (quoting Petties, 836 F.3d at 731). As Arce explained, a
plaintiff can establish deliberate indifference either by showing that a doctor’s treatment decision
“is such a substantial departure from accepted professional judgment, practice, or standards as
to demonstrate that the person responsible actually did not base the decision on such judgment.”
Id. (quoting Johnson v. Rimmer, 936 F.3d 695, 707 (7th Cir. 2019)). Alternatively, “even if a
defendant eventually pursues an acceptable course of treatment,” that doctor “still may violate
the Eighth Amendment if she is deliberately indifferent to an unjustifiable delay that ‘exacerbated
the inmate's injury or unnecessarily prolonged his pain.’” Id. (quoting Perez v. Fenoglio, 792 F.3d
768, 777–78 (7th Cir. 2015)). As already explained, evidence in the record raises triable issues
of fact as to whether Obaisi knew that the care he was giving exposed Plaintiff to a serious risk of
harm or prolonged his pain.
2.
Adequate Treatment
Defendant notes that Dr. Gonzalez prescribed similar treatment—anti-inflammatories and
physical therapy—after Plaintiff’s first appointment with him, arguing that this shows that the risk
of serious harm was not obvious. If the wrist pathology was not obvious to Gonzalez, the
argument goes, Plaintiff has failed to show any inadequacy or constitutional deficiency in the
(similar) care Obaisi had employed until then. Again, this is evidence that may be persuasive to
the jury. But a jury could also conclude that, unlike Dr. Gonzalez, Obaisi had seen Plaintiff
repeatedly and understood that his wrist pain was severe and ongoing, and, at least as of
November 2015, that a ganglion cyst may not be its cause.
33
Put differently, Plaintiff has done enough here to raise a triable issue of fact as to whether
Obaisi knew that something more than pain medication was necessary to treat Plaintiff’s
condition, but nonetheless dragged his feet in initiating specialty care. Moreover, Dr. Gonzalez’s
treatment plan did differ from Obaisi’s insofar as he recommended physical therapy. And more
importantly, Dr. Gonzalez ramped up treatment on Plaintiff’s second visit, when he saw that pain
medications were not working. Had Plaintiff never seen the specialist, then, it is not at all clear
that Obaisi would have ordered the MR arthrogram Dr. Gonzalez eventually conducted. Viewed
in Plaintiff’s favor, a jury could reasonably conclude that the delay in getting that process started,
in the face of Plaintiff’s obvious and frequent complaints of pain, constituted deliberate
indifference notwithstanding the initial similarity in the two doctors’ treatment plans.
3.
Whether Treatment Delays Caused Plaintiff’s Injuries
Similarly, Defendant argues that any delay in Plaintiff’s treatment was irrelevant because
“there is no causal relationship between any alleged delays and any alleged injuries to Plaintiff.”
(Reply at 6.) Defendant cites to Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008), which
implies that, to show deliberate indifference from a delay in treatment, a plaintiff needs to proffer
“verifying medical evidence” that the delay worsened his medical condition. But Plaintiff has
proffered such evidence: Plaintiff’s medical expert opined that his wrist condition was “more likely
than not present as of November 2014 when Mr. Baker first began complaining of severe pain in
his right wrist,” and that it would deteriorate “over time” and “accelerate[] exponentially . . . as the
disease status becomes worse.” (Treister Rep. at 2588.) In other words, evidence in the record
could lead a jury to conclude that some of Plaintiff’s wrist issues could have been prevented with
earlier intervention. Secondly, as noted above, a delay need not actually worsen Plaintiff’s
medical condition to amount to deliberate indifference if it unnecessarily prolonged serious pain.
See Gomez, 680 F.3d at 865–66.
34
4.
Questions Related to Control Over Appointment Scheduling
Finally, Defendant points to confusion in the record about who controls Stateville’s
appointment-scheduling process to argue that any delay was not Obaisi’s fault. Here, Defendant
relies in part on Walker, in which the Seventh Circuit noted that “the plaintiff must show that the
defendant’s actions or inaction caused the delay in his treatment.” 940 F.3d at 964. 20 Defendant
is right that the record points in different directions on this question. On the one hand, some
evidence suggests that Obaisi controlled the process: the Administrative Directive claims that
Obaisi, the Medical Director, must ensure that specialist appointments are made once approved,
and Obaisi “made referrals to see [an] orthopedic specialist” in late March, 2016, after Plaintiff’s
repeated complaints, and which resulted in a scheduled appointment the following day. (IDOC
Administrative Directive at 2717; Ex. R to SOAF at 2686.) However, other evidence suggests
that the scheduling delays were the fault of other individuals, including the Medical Records
Director or other healthcare staff. (See IDOC Administrative Directive at 2717 (noting that “health
care staff shall schedule the pending specialty service”); Martija Dep. at 54:12–22; Baker Dep. at
197:19–198:3.)
But the fact that evidence points in different directions means that summary judgment is
inappropriate. As the Seventh Circuit put it in Thomas:
All this is to say that there are facts that need to be resolved. It is enough for now
that there is evidence supporting two possibilities: either that Dr. Obaisi was
deliberately indifferent to [Plaintiff’s] needs and caused this delay, or that
administrative issues beyond his control were to blame. Moreover, one cannot
blame the orthopedists for delays before June 2015, when Dr. Obaisi initiated the
referral process.
The parties spent time in separate briefing arguing as to whether Walker v.
Wexford, 940 F.3d 954, created “new law” or law retroactively applicable to this case. (See Reply
at 3–4; Sur-Reply by Pl. Eugene Baker to Reply [152] at 2–3; Sur-Reply by Def. Ghaliah Obaisi
[153] at 1–2.) It is unclear to the court exactly where their dispute lies, but the parties appear to
agree that Walker is “precedential” and thus bears on this case. (See Sur-Reply by Def. Ghaliah
Obaisi at 1–2.)
20
35
991 F.3d at 770. Broader still, a jury could conclude that as the Medical Director, Dr. Obaisi had
the authority—and responsibility—to ensure that other medical staff made the appointments in a
timely manner, and he failed to do so with knowledge of the consequences that failure risked
having on Plaintiff. Defendant’s argument thus misses the mark.
CONCLUSION
A reasonable jury could view the entirety of the evidence amassed in this case—including
the statements Obaisi allegedly made to Plaintiff in November 2014, his refusal to prescribe pain
medications at that appointment, the delay in approving Plaintiff to see a specialist, and the delay
in scheduling Plaintiff’s first and second appointments with that specialist—as suggesting his
deliberate indifference to Plaintiff’s serious pain, or a serious slate of wrist conditions. For these
reasons, Defendant’s motion for summary judgment [119] is denied.
ENTER:
Dated: March 27, 2024
______________________________________
REBECCA R. PALLMEYER
United States District Judge
36
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