Gevas v. Obaisi et al

Filing 432

MEMORANDUM Opinion and Order: The IDOC Defendants' summary judgment motion 395 is granted in part and denied in part. The Wexford Defendants' motion for summary judgment 398 is granted in part and denied in part. Signed by the Honorable Mary M. Rowland on 11/18/2022. (See attached Order for further detail.) Mailed notice. (dm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID GEVAS,
Plaintiff,

Case No. 16-cv-10599

v.
SALEH OBAISI, et al.,

Judge Mary M. Rowland

Defendants.
MEMORANDUM OPINION AND ORDER
In March 2016, inmate David Gevas was diagnosed with stage IV non-Hodgkins
lymphoma while incarcerated at Stateville Correctional Center (“Stateville”). He
alleges that this was a delayed diagnosis that required more intensive chemotherapy
treatment than if it had been caught earlier and caused him pain, suffering, and
diminished life expectancy. Gevas filed this lawsuit in November 2016 pursuant to
42 U.S.C. § 1983, alleging that Stateville medical provider, Wexford Health Sources,
Inc. (“Wexford’) and Wexford doctor Dr. Obaisi (collectively the “Wexford
Defendants”), and the Director of IDOC and the Stateville warden (collectively, the
“IDOC Defendants”) violated his Eighth Amendment rights because they were
deliberately indifferent to his medical conditions. The Wexford Defendants and IDOC
Defendants have moved for summary judgment. For the reasons stated below, the
IDOC Defendants’ summary judgment motion [395] is granted in part and denied in
part. The Wexford Defendants’ motion for summary judgment [398] is granted in part
and denied in part.

1

SUMMARY JUDGMENT STANDARD
Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A genuine dispute as to any material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which facts are
material. Id. After a “properly supported motion for summary judgment is made, the
adverse party ‘must set forth specific facts showing that there is a genuine issue for
trial.’” Id. at 250 (quoting Fed. R. Civ. P. 56(e)).
The Court “consider[s] all of the evidence in the record in the light most favorable
to the non-moving party, and [ ] draw[s] all reasonable inferences from that evidence
in favor of the party opposing summary judgment.” Logan v. City of Chicago, 4 F.4th
529, 536 (7th Cir. 2021) (quotation omitted). The Court “must refrain from making
credibility determinations or weighing evidence.” Viamedia, Inc. v. Comcast Corp.,
951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson, 477 U.S. at 255). In ruling on
summary judgment, the Court gives the non-moving party “the benefit of reasonable
inferences from the evidence, but not speculative inferences in [its] favor.” White v.
City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). “The
controlling question is whether a reasonable trier of fact could find in favor of the
non-moving party on the evidence submitted in support of and opposition to the
motion for summary judgment.” Id.

2

BACKGROUND 1
Gevas was housed at Stateville at all times relevant to this action. (IDSOF ¶ 1).
The time period for his complaint goes through September 12, 2017. Id. ¶ 18.
Defendant Pfister was warden of Stateville from November 2015 through February
2018 Id. ¶ 2. Defendant Baldwin was acting director of IDOC from August 14, 2015
through May 2019. Id. ¶ 3. Wexford is a company that provides medical services to
inmates at Stateville pursuant to its contract with the IDOC. (WDSOF ¶ 3). Ghalia
Obaisi is the independent administrator of the Estate of former Defendant, Saleh
Obaisi, M.D. deceased (“Dr. Obaisi”). Dr. Obaisi was employed by Wexford as the
Medical Director of Stateville from August 2012 until he died on or about December
23, 2017. Id. ¶ 4.
On May 6, 2014, Gevas was discharged to Stateville after a week-long
hospitalization during which he was diagnosed with sleep apnea, atrial fibrillation,
and a small pulmonary micronodule in his lung. (PSOF ¶ 1). The discharge
instructions, which were received by both Dr. Obaisi and Wexford’s corporate offices,
instructed that Gevas should have a follow-up chest CT scan in either 6-12 months
or in 3-6 months, and another scan in 9-12 months if stable. Id. On May 19, 2014,
nearly two weeks after being discharged to Stateville from UIC with diagnoses of
sleep apnea, atrial fibrillation, and a pulmonary nodule requiring follow-up, Gevas
attended a post hospitalization evaluation with Dr. Obaisi. Id. ¶ 5. Dr. Obaisi noted
Gevas’s diagnosis of obstructive mild sleep apnea but did not write anything in the
The facts are taken from the parties’ Rule 56.1 statements and are undisputed unless
otherwise noted.

1

3

progress note about ordering a CPAP machine as recommended by UIC, and did not
note UIC’s recommendation to schedule a follow-up CT scan to monitor the
pulmonary micronodule found in Gevas’s lung. Id. 2
On August 5, 2015, Gevas presented to Stateville medical staff with throbbing
pain in his lower back and lower left leg that was constant and getting worse. Id. ¶
12. He was referred to Dr. Obaisi. Id. 3 On December 28, 2015, Mr. Gevas presented
to nurse sick call reporting chest pain, productive coughing with clear sputum, pain
when coughing, shortness of breath, chills, and night sweats and was initially
prescribed antibiotics and cough drops. Id. ¶ 16. 4 On February 8, 2016, Gevas had a
follow up appointment with Dr. Obaisi. Id. ¶ 19. Dr. Obaisi’s notes from the February
8 appointment indicate that his plan included a chest x-ray, prescription of
prednisone, and “CXS sputum.” Id. ¶ 20. When the chest x-ray completed on February
10, 2016 revealed no explanation for Gevas’s ongoing symptoms, a request was put in
with Wexford for a chest CT scan for Gevas. Id. ¶ 21. However that request was
denied in Wexford’s collegial review process on February 16, 2016, with a notation

The Defendants dispute in part this fact. The note the Court believes Defendants refer to
does state that the CPAP request was received and approved, however there is no notation
for a follow-up or that the CPAP machine was ordered. (Dkt. 399-9 at 16).

2

Defendants dispute in part this fact but do not cite any evidence that “MD” refers generally
to “physicians sick call” and not to Dr. Obaisi or “medical director”.
3

The Defendants dispute in part this fact but its dispute is essentially that Obaisi’s
condition was improving in February 2016. Defendants’ response does not directly address
the asserted fact.

4

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stating that Gevas’s symptoms were controlled on prednisone. Id. 5 On March 2, 2016,
Gevas was seen by a nurse following a urology appointment at UIC and reported pain
in his shoulder. Id. ¶ 23. On March 21, 2016, Gevas reported to Dr. Obaisi that he
had the “same cough without prednisone” and that he had tenderness in his shoulder,
near his scapula blade. Id. ¶ 24.
On March 30, 2016, Gevas reported to sick call that he had had chest pain for the
past two days, even at rest, had tightness and burning in his chest, was experiencing
shortness of breath and arm pain, and had vomited that day. Id. ¶ 25. Dr. Obaisi
prescribed 50 mg of Metoprolol and sent him back to his housing unit. Id. As Medical
Director at Stateville, Dr. Obaisi was responsible for all referrals to UIC, for
communication with outside hospitals, and for referrals to collegial review for off-site
testing. Id. ¶ 69. 6
The next day, March 31, Gevas presented with progressively worsening chest pain
and was sent to St. Joseph’s medical center, where a CT angiogram revealed chest
and abdominal lymphadenopathy, pulmonary nodules, lytic lesions in ribs and spine
consistent with metastic disease and likely pathological fracture in right clavicle. Id.
¶ 26. Gevas was transferred to UIC Medical Center, where a CT scan of his chest,
abdomen, and pelvis was done on April 7, 2016. Id. ¶ 27. It further revealed
“numerous lytic lesions throughout the spine, pelvis and left ribs with additional

The collegial review process is an internal process by which Wexford reviews the medical
necessity and clinical appropriateness of referrals for off -site services. The determination of
whether or not to send a particular prisoner to UIC Medical Center is one of the issues
discussed in collegial review. Id. ¶ 58.

5

6

This part of the asserted fact is not disputed by Defendants.
5

large lytic mass within the right clavicle causing pathological fracture” as well as
“mediastinal lymphadenopathy and bulky retroperitoneal lymphadenopathy” as well
as multiple pulmonary nodules. Id. He was instructed to avoid heavy lifting and take
precautions against falling…” Id. Lytic lesions are weak spots where the bone has
been replaced by cancerous tissue. Id. ¶ 28. Gevas was later diagnosed with stage IV
diffuse large B-cell lymphoma with multifocal bone disease in the spine, rib, and
clavicle and extranodal disease (lung nodules). Id. ¶ 29. The lymphoma had also
caused a pathological fracture in Gevas’s right clavicle, near his shoulder. Id. ¶ 30.
In his Fourth Amended Complaint (FAC), Gevas alleges that his Eighth
Amendment rights were violated by Ghaliah Obaisi (for the estate of Dr. Saleh
Obaisi) (Count I), Director Baldwin (Count II), Warden Pfister (Count III), and
Wexford (Count IV). Gevas also brings state-law claims for medical malpractice
against Obaisi (Count V), respondeat superior - medical malpractice against Wexford
(Count VI), and institutional negligence against Wexford (Count VII). 7
ANALYSIS
I.

The Eighth Amendment

The Eighth Amendment requires prison officials to provide healthcare to
incarcerated inmates who cannot obtain healthcare on their own, Howell v. Wexford
Health Sources, Inc., 987 F.3d 647, 653 (7th Cir. 2021), and imposes liability on those
who act with deliberate indifference to a substantial risk of serious harm to inmates,
Eagan v. Dempsey, 987 F.3d 667, 693 (7th Cir. 2021). A plaintiff alleging deliberate
On August 4, 2021, Gevas and the IDOC Defendants stipulated to the dismissal of certain
claims and Defendant Christerson. [388].

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indifference must show: (1) an objectively serious medical condition; and (2) an
official’s deliberate indifference to that condition. See id. In this case, Defendants do
not dispute that Gevas’s medical conditions were objectively serious, so only the
second prong is in dispute.
The second prong, the subjective inquiry, requires a plaintiff to provide evidence
that each defendant acted “with a ‘sufficiently culpable state of mind.’” Peterson v.
Wexford Health Sources, Inc., 986 F.3d 746, 752 (7th Cir. 2021) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). “To establish deliberate indifference, a plaintiff
must show that the defendant ‘actually knew of and disregarded a substantial risk of
harm.’” Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir. 2018) (quoting Petties v. Carter,
836 F.3d 722, 728 (7th Cir. 2016) (en banc)).
II.

The IDOC Defendants

The IDOC Defendants argue that Gevas cannot establish their personal
involvement because Gevas only named them in this suit because of their role in the
grievance procedure. Gevas responds that Baldwin and Pfister were personally
involved and their failure to act to provide adequate medical treatment to prisoners
lead Gevas to suffer from atrial fibrillation, sleep apnea and delayed cancer diagnosis.
The Court finds that Gevas has not presented evidence of Baldwin’s personal
involvement to create a triable issue of fact, but has done so with respect to Pfister.
To be liable for an alleged deprivation of constitutional rights, a defendant must
be “personally responsible” for the deprivation. Mitchell, 895 F.3d at 498. This is
satisfied if the constitutional violation occurs at a defendant's “direction or with her

7

knowledge or consent.” Id. Even if a defendant did not “take part” in the
constitutional deprivation, he may nevertheless be liable if he “acquiesced in the
failure to provide necessary medical treatment.” Id. A plaintiff seeking to hold
supervisors liable cannot “rely on a theory of respondeat superior but, instead, must
present evidence that the defendants violated the Constitution through their own
conduct.” Stockton v. Milwaukee Cnty., 44 F.4th 605, 619 (7th Cir. 2022).
The parties dispute whether the IDOC Defendants’ involvement in the grievance
process is sufficient to give rise to their personal liability. In this context, courts
assess whether the grievance officials “obtained actual knowledge” of plaintiff’s
medical condition and inadequate medical care. Perez v. Fenoglio, 792 F.3d 768, 782
(7th Cir. 2015). Courts have found that a plaintiff provided sufficient evidence to
survive summary judgment on this issue when, in addition to submitting grievances,
there was evidence that the plaintiff spoke in person with or wrote letters to the
official. See Snow v. Obaisi, No. 1:17 CV 4015, 2021 WL 4439421, at *8-9 (N.D. Ill.
Sept. 28, 2021) (finding that plaintiff submitted sufficient evidence to allow a
reasonable jury to find that the warden knew about plaintiff's serious medical
conditions, including plaintiff’s testimony that he had conversations with the warden
and wrote him letters); Thomas v. Wexford Health Servs., Inc., 414 F. Supp. 3d 1154,
1162-63 (N.D. Ill. 2019) (plaintiff provided evidence from which it could be reasonably
inferred that warden “had actual knowledge” about plaintiff’s delayed medical care
including plaintiff’s testimony that he told the warden that he was having trouble
breathing and needed a follow-up appointment); Taylor v. Wexford Health Sources,

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Inc., No. 16-CV-3464, 2022 WL 4329025, at *16 (N.D. Ill. Sept. 19, 2022) (“Plaintiff
presented evidence that he filed grievances with [officials] and that he spoke to both
of them about his conditions.”) (emphasis added).
Here, the IDOC Defendants argue that Gevas cannot rely solely on their role in
the grievance process. However, Gevas, relying on his October 2021 affidavit,
contends that in addition to grievances, he wrote letters to the IDOC Defendants. He
states that he wrote them three letters in January and February 2016 about his
conditions including his need for a CT scan. (Gevas Aff. (Dkt. 406-1)). The IDOC
Defendants criticize Gevas’s affidavit as “self-serving” (Dkt. 415 at 5). However, as
the Seventh Circuit has explained, “[o]ur cases for at least the past fifteen years teach
that [s]elf-serving affidavits can indeed be a legitimate method of introducing facts
on summary judgment.” McKinney v. Off. of Sheriff of Whitley Cnty., 866 F.3d 803,
814 (7th Cir. 2017) (cleaned up). 8 The IDOC Defendants argue that Gevas’s
statements in his affidavit conflict with Gevas’s prior testimony, but about Baldwin
only. (Dkt. 415 at 5). The Court agrees that at his deposition (Gevas Dep. (Dkt. 3992)), Gevas testified to communicating with Baldwin only through the grievance
process. As for Pfister, however, Gevas testified that he communicated with Pfister
about his health outside of the grievance process. (Id. at pp. 20-23).

The IDOC Defendants also argue that “nothing in this case that demonstrates that the
IDOC Defendants received or reviewed Plaintiff’s alleged letters.” (Dkt. 415 at 9). The IDOC
Defendants do not cite any authority showing Gevas was required to attach the referenced
letters to his affidavit. In essence their argument challenges Gevas’s credibility, but the Court
will not decide credibility issues on summary judgment. See Viamedia, 951 F.3d at 467.
8

9

Therefore, Gevas has presented sufficient evidence of Pfister’s personal
responsibility to survive summary judgment. Because Pfister became warden of
Stateville in November 2015 (IDSOF ¶ 2), the claims against him will be limited to
November 2015 through September 2017. Gevas does not dispute this.
Gevas argues that a jury could infer the IDOC Defendants’ personal involvement
because of the 2014 Report of medical expert Dr. Ronald Shansky which “detailed
these systemic issues [with the healthcare system in Illinois Prisons] and put
Defendants on notice of these problems.” (Dkt. 407 at 7). 9 However as the Seventh
Circuit recently reiterated, “we have repeatedly held such reports [the Shansky
reports] are inadmissible hearsay and thus their contents cannot be offered for the
truth of the matter asserted.” Stockton, 44 F.4th at 617; Shafford v. Wexford Health
Sources, Inc., No. 16 C 50111, 2020 WL 1304821, at *1 (N.D. Ill. Mar. 19, 2020), aff'd,
No. 20-1810, 2021 WL 4958769 (7th Cir. Oct. 26, 2021) (declining to consider Shansky
report as evidence on summary judgment). Even if the Court considered the Shansky
Report as evidence that Baldwin had notice of problems at Stateville, the Shansky
Report is the sole evidence Gevas has provided, outside of Baldwin’s role in the
grievance process, to argue that Baldwin was personally involved in the alleged
constitutional violation. The Court finds that this does not show that Baldwin
“obtained actual knowledge” (Perez, 792 F.3d at 782) of Gevas’s medical condition and

The Shansky Report was prepared by plaintiffs in a class-action brought by individuals in
IDOC custody, Lippert v. Godinez, Case No. 10-cv-4603.
9

10

inadequate medical care or “violated the Constitution through [his] own conduct.”
Stockton, 44 F.4th at 619.
Finally, Gevas does not object to the IDOC Defendants’ argument that his claims
for injunctive relief and official capacity claims are moot. In sum, the IDOC
Defendants’ summary judgment motion [395] is granted as to Baldwin and denied as
to Pfister, and granted as to the official capacity and injunctive relief claims.
III.

Wexford Defendants – Federal Claims

The Court next turns to the Wexford Defendants’ summary judgment motion. The
Wexford Defendants argue that Gevas has not provided any evidence that treatment
he received at Stateville was a substantial departure from accepted professional
standards. Medical professionals generally have discretion in treatment decisions so
a plaintiff must establish that the medical professional’s acts are “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 a
judgment.” Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 458 (7th Cir. 2020).
The Wexford Defendants further argue that Gevas has not produced sufficient
evidence showing that Wexford had an unconstitutional policy or practice, or that any
such policy or practice was a driving force behind his alleged constitutional injury.
First, as to Dr. Obaisi, the Court finds that there is a triable issue about whether
he was deliberately indifferent to Gevas’s lymphoma and sleep apnea. However

11

summary judgment is granted to Dr. Obaisi on Gevas’s claim about atrial
fibrillation. 10
a. Lymphoma
Gevas has provided sufficient evidence creating a jury question about whether Dr.
Obaisi knew of and disregarded known risks of harm to Gevas by failing to order
follow-up CT scans after a UIC radiologist found a pulmonary micronodule in 2014.
When a CT scan was finally done nearly two years later in April 2016, Gevas was
diagnosed with stage IV diffuse large B-cell lymphoma. Although he received the
recommendation for a follow-up CT scan to monitor the pulmonary micronodule, Dr.
Obaisi did not put in an order for it and actually denied a chest CT scan request
during a collegial review process in February 2016. When Gevas reported chest pain
and tightness, shortness of breath, arm pain, and vomiting on March 30, 2016, Dr.
Obaisi prescribed medicine and sent him back to his housing unit. The next day, with
worsening chest pain, Gevas was sent to St. Joseph’s medical center, where a CT
angiogram revealed among other things, chest and abdominal lymphadenopathy,
pulmonary nodules, and lytic lesions with metastic disease. Gevas was transferred to
UIC Medical Center, where a CT scan done on April 7, 2016 revealed numerous lytic

The Court notes initially that in several instances, the Wexford Defendants argue that
Gevas failed to produce the grievances and correspondences he references. The Court does
not find that dispositive. As a court in this district has explained, “[t]he general assertion
that [plaintiff] filed grievances is within his personal knowledge and something he could
testify to at trial. That he does not offer or cite to specific grievances he filed, their substance,
or how they were resolved, goes to the weight of the assertion.” Flournoy v. Est. of Obaisi, No.
17 CV 7994, 2020 WL 5593284, at *2 (N.D. Ill. Sept. 18, 2020).
10

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lesions with a large lytic mass within the right clavicle causing a fracture, multiple
pulmonary nodules and lymphadenopathy.
Gevas has presented evidence that the delay in receiving a CT scan caused him
harm. “When a plaintiff alleges that a defendant delayed, rather than denied, medical
treatment, he must present ‘verifying medical evidence’ that the delay, not the
underlying condition, caused ‘some harm.’” Flournoy v. Est. of Obaisi, No. 17 CV 7994,
2020 WL 5593284, at *8 (N.D. Ill. Sept. 18, 2020) (citations omitted). “If the evidence
falls somewhere in between a bare recitation of treatment received and expert
testimony about the delay’s effect, that is sufficient to survive summary judgment on
whether the delay caused harm.” Id. (cleaned up). Gevas’s testimony about his
worsening condition and his complaints to the medical staff 11, combined with the
medical records showing Dr. Obaisi did not follow up on a recommendation for a CT
scan and even later denied another request for a CT scan, create a jury question about
whether Dr. Obaisi was deliberately indifferent to Gevas’s medical condition.
Moreover, testimony of the Wexford Defendants’ own expert, Dr. Neil Fisher,
supports Gevas’s position that summary judgment is not warranted. Dr. Fisher
testified that it was possible that the back and leg pain that Gevas reported in August
2015 was caused by the cancer that was then discovered in 2016, and after the
January 2016 x-ray of the rib, the doctor should have spoken to Gevas about what

Defendants argue that not all of these complaints are in the medical records. However, at
this stage the Court will not question Gevas’s credibility or choose between competing
inferences. “The court does not ‘assess the credibility of witnesses, choose between competing
reasonable inferences, or balance the relative weight of conflicting evidence.’” Driveline Sys.,
LLC v. Arctic Cat, Inc., 936 F.3d 576, 579 (7th Cir. 2019) (citation omitted).
11

13

could have caused the broken rib, and a possible cause of the fracture could have been
cancer. (Dkt. 406-2, pp. 103-05, 107-08).
The Wexford Defendants argue that the follow-up CT scans ordered by the UIC
radiologist in April 2014 were “to make sure [Gevas] did not develop lung cancer, not
lymphoma.” (Dkt. 400 at 7). They also argue that biopsies on in May 2014 “rul[ed] out
lymphoma at that time.” Id. However these are not accurate representations of the
medical records. They do not say lymphoma was “ruled out.” Instead during the
biopsies, “lymphocytes were seen,” but “no other significant adenopathy seen at
paratracheal or bilateral [] areas.” (Dkt. 399-9 at 11, emphasis added). The Wexford
Defendants also make the completely unsupported argument that “clearly, the risks
of harmful exposure to radiation do not warrant constant CT scan in the hope of
making incidental findings.” (Dkt. 400 at 7). 12
Thus there is a triable issue of fact about whether Dr. Obaisi’s failure to order a
CT scan and monitor Gevas’s pulmonary micronodule caused Gevas harm.
b. Sleep apnea
Gevas also alleges that Dr. Obaisi was deliberately indifferent to his sleep apnea
and need for a CPAP machine. In May 2014, after Gevas’s hospitalization and
obstructive sleep apnea diagnosis, Dr. Obaisi and Dr. Garcia, approved him for CPAP.
However, he did not receive a CPAP machine until August 2017. In his affidavit and

Murphy v. Wexford Health Sources Inc., 962 F.3d 911 (7th Cir. 2020), relied on by
Defendants, is distinguishable because in that case the prison doctor did not receive a specific
recommendation of a diagnostic imaging follow up for an inmate within a specific amount of
time.
12

14

at his deposition, Gevas testified that Dr. Obaisi told him he ordered the CPAP
machine, and in the subsequent years, Gevas continued to follow up with Dr. Obaisi
about the CPAP machine. 13
The Wexford Defendants argue that on May 30, 2014, the pulmonologist
“recommended weight loss…in lieu of a CPAP.” (Dkt. 400 at 6). Although the
pulmonologist recommended weight loss and a sleep study (Dkt. 399-9 at 17), nothing
in this medical record states that these were recommended instead of a CPAP. The
Wexford Defendants do not cite evidence that Dr. Obaisi believed the pulmonologist
to be recommending that Gevas not receive a CPAP machine. In addition, the Court
is confused by the Wexford Defendants’ argument stressing Gevas’s failure to do a
sleep study in 2013, since in 2014, Gevas did a sleep study and a CPAP machine was
recommended for him then, and Dr. Obaisi and utilization management physician,
Dr. Garcia, approved Gevas for CPAP on May 19, 2014. (WSOF ¶¶ 17, 22). In short,
regarding his sleep apnea, this is not a case of Gevas insisting on some “particular
care of [his] choosing.” Woods v. Obaisi, No. 21-1659, 2022 WL 2113080, at *2 (7th
Cir. June 13, 2022). Rather he was seeking the particular care that had been
specifically approved for him.

Defendants object to this testimony since progress notes do not reference complaints from
Gevas regarding sleep apnea or reference Dr. Obaisi discussing a CPAP machine with him.
Again, the Court declines to assess Gevas’s credibility on summary judgment. Further,
Defendants do not dispute that Gevas’s sleep apnea was a serious medical condition that Dr.
Obaisi was aware of and that Dr. Obaisi himself approved a CPAP machine for Gevas.
13

15

Accordingly a reasonable jury could conclude that Dr. Obaisi’s failure to order a
CPAP machine constituted deliberate indifference. Summary judgment on this claim
against Dr. Obaisi is denied.
c. Atrial fibrillation
The Wexford Defendants argue that Dr. Obaisi was not deliberately indifferent to
Gevas’s atrial fibrillation. Gevas does not dispute that Dr. Obaisi was aware of and
provided him medication for this condition. Gevas also does not dispute that after
three days of worsening chest pain, he was sent to St. Joseph’s hospital. Gevas argues
that the Defendants rely on January 2016 medical records showing an increase in his
medication, “but there is strong evidence to suggest that this is a transcription error”
and the increase did not actually happen. (Dkt. 408 at 20). 14 Gevas’s transcription
error theory appears speculative. Even if the evidence was clear that Dr. Obaisi did
not increase his medication at this time, Gevas has not shown how this rises to the
level of “”‘grossly inadequate medical care.’” Woods, 2022 WL 2113080, at *2 (citations
omitted). Showing deliberate indifference poses a “high hurdle” for a plaintiff.
Donald, 982 F.3d at 458 (internal quotation marks omitted). “Negligence—even gross
negligence—is insufficient to meet this standard,” though a plaintiff need not show
intentional harm. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012).
The Wexford Defendants’ summary judgment motion based on the atrial
fibrillation is granted.

14

The Court is unable to read the handwriting in this medical record in Dkt. 406-13.
16

d. Monell claim against Wexford
Next the Court considers Gevas’s Eighth Amendment claim against Wexford.
Under Monell v. Department of Social Services of City of New York, 436 U.S. 658
(1978), Wexford faces liability under section 1983 only for constitutional injuries
caused by “(1) an express government policy; (2) a widespread and persistent practice
that amounted to a custom approaching the force of law; or (3) an official with final
policymaking authority.” Howell, 987 F.3d at 653; see also Shields v. Ill. Dep’t of Corr.,
746 F.3d 782, 789 (7th Cir. 2014). Plaintiff must “offer evidence of causation: that the
unconstitutional custom, policy, or practice at the Jail was the ‘moving force’ behind
the constitutional deprivation.” Daniel v. Cook Cnty., 833 F.3d 728, 736 (7th Cir.
2016) (cleaned up).
Gevas contends that Wexford has “several practices, customs, or patterns of bad
acts that demonstrate deliberate indifference”: inadequate medical record keeping,
failure to establish a procedure to track patients who receive offsite services and
require additional follow-up, using a deficient collegial review process, hiring an
underqualified physician to act as Medical Director, and inadequate staffing. The
Wexford Defendants object to Gevas relying on expert reports from another case in
this district; they object to him relying on either Lippert report. As already discussed,
the Seventh Circuit has “repeatedly held such reports are inadmissible hearsay and
thus their contents cannot be offered for the truth of the matter asserted.” Stockton,
44 F.4th at 617. And given the relevant time frame for this case, there is no basis for

17

Gevas to rely on the 2018 Puisis Report. See Dean v. Wexford Health Sources, Inc., 18
F.4th 214, 221 (7th Cir. 2021). However, in Dean, the Seventh Circuit did not decide
whether the district court abused its discretion in admitting the 2014 Shansky report.
Id. at 234.
In a footnote, Gevas asserts: “Defendants argue that the Lippert reports are
impermissible hearsay, but the Shansky Report is put forth here to show that
Wexford was on notice of these systemic problems, not for the truth of the matter
asserted.” (Dkt. 408, n. 2). Gevas argues that at Stateville, the Shansky Report found
that it was common that patients who had received consultations or procedures at
UIC had not received appropriate follow up, and recommended that Wexford develop
a system for logging outside appointments and necessary follow-up. 15 Unlike in Dean,
the 2014 report does link directly to the facility here, Stateville. Dean, 18 F.4th at
238. And Dr. Fisher, assistant chief medical officer at Wexford, testified that he was
familiar with and had read the Shansky report and “we did help the IDOC respond
to the Shansky report.” (Fisher Dep. (Dkt. 406-3) pp. 11-12)). In addition, Dr. Ritz,
who had been employed at Wexford since 2014 and reviewed Gevas’s case in collegial
review, testified that he read the Shansky report with respect to the care that was
being provided by Wexford. (Ritz Dep. (Dkt. 399-8), p. 106). 16

The Shansky Report found that “at every facility, there were examples of patients who had
received consultations or procedures but no follow up with the patient had occurred. This was
quite common at some facilities, including Stateville…” Shansky Report, p. 32.

15

In addition, Baldwin testified that he was familiar with the Shansky Report including
problems with follow up for prisoners sent out to outside hospitals for certain health services.
PSOF ¶ 41. Baldwin testified that he believed he had some responsibility for assessing the
16

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Therefore Gevas has provided sufficient evidence in his case creating a question
of fact for a jury on this Monell claim.
In addition, Gevas has sufficient evidence at this stage that the follow-up failure
after his UIC discharge caused his delayed cancer diagnosis. But other than this
claim, Gevas puts forth no evidence that Wexford’s alleged unconstitutional practice
is what caused him to receive constitutionally deficient medical care. Without
evidence of causation, his section 1983 claim against Wexford fails as a matter of law.
See Pulera v. Sarzant, 966 F.3d 540 (7th Cir. 2020), cert. denied, 141 S. Ct. 1509
(2021).
For the stated reasons, this Court grants summary judgment to Wexford on
Gevas’s Monell claim, with one exception: the claim related to patients who receive
offsite services and require additional follow-up.
IV.

Wexford Defendants – State Law Claims and Punitive Damages
a. State law claims

Gevas claims that Dr. Obaisi is liable for medical malpractice under Illinois state
law. For his medical-malpractice claim, Gevas must establish that Dr. Obaisi
deviated from the standard of care, and that proximately caused his injury. Miranda

validity of the claims in the Shansky report. (Baldwin Dep. (Dkt. 406-4) at pp. 21-22). This
responsibility included, he said, “at a macro level [to] try[] to change how we provided health
care to the offender population”; he further testified “we have a duty to provide adequate
health care,” and he relied on health care staff at the facility to provide medical care to the
inmates. Id. at pp. 21-25. Baldwin also confirmed that Gevas’s allegations about follow-up
failures appeared consistent with the problem Shansky identified. Id. at pp. 13-14. Although
Baldwin was the IDOC acting director, his testimony along with the Wexford doctors’
testimony, the undisputed fact that IDOC contracts with Wexford to provide medical care,
and the Shansky Report findings, could give rise to the reasonable inference that Wexford
was aware of and deliberately indifferent to the follow-up issues Gevas experienced.
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v. Cty. of Lake, 900 F.3d 335, 348 (7th Cir. 2018) (citation omitted). Illinois law
requires that these elements must be established by expert testimony “to a
reasonable degree of medical certainty.” Id. In response to the Wexford Defendants’
summary judgment motion, Gevas relies on the October 2021 affidavit of Dr. Paulette
Finander. (Dkt. 406-12). Dr. Finander opines that to a reasonable degree of
professional certainty, “defendants did not follow the medical standards of care as to
their duty to evaluate Mr. Gevas…leading to a delay in diagnosis of Mr. Gevas’s
lymphoma malignancy.” Id. The Wexford Defendants object to Gevas relying on this
expert. Indeed in September 2020, the Court stayed expert discovery pending the
resolution of Defendants’ summary judgment motion. (Dkt. 324).
At this time, the Court will not strike this affidavit or rule on Defendants’ Daubert
challenge. Defendants’ summary judgment motion on this claim, Count V, is denied
without prejudice. Accordingly, summary judgment on Count VI against Wexford is
also denied without prejudice.
Finally, as to the institutional negligence claim against Wexford, Count VII,
Wexford argues that it fails for the same reasons the Monell claims fail: Gevas “has
not come forth with evidence sufficient to show that the alleged inadequate medical
care or resulting injuries were caused by anything other than the individual decisions
or negligence on the part of the Stateville medical staff.” (Dkt. 400 at 13). However
as discussed, since one Monell claim against Wexford has survived, this claim
survives as well.

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b. Punitive damages
The Wexford Defendants finally contend that even if his claims survive, Gevas
does not have evidence that punitive damages are warranted. Gevas concedes that
punitive damages are not recoverable against the estate of a deceased Defendant and
is not pursuing punitive damages against Obaisi. But Gevas argues that summary
judgment is not appropriate on the question of whether punitive damages are
recoverable against Wexford. With one Monell claim surviving against Wexford, the
Court will not dismiss the punitive damages claim against Wexford. See Flournoy,
2020 WL 5593284, at *15 (“Since there is a triable issue about whether Wexford had
a custom or practice of withholding prescribed medicine, Wexford’s motion for
summary judgment on punitive damages is denied.”).
CONCLUSION
For the stated reasons, the IDOC Defendants’ summary judgment motion [395] is
granted in part and denied in part. The Wexford Defendants’ motion for summary
judgment [398] is granted in part and denied in part.

E N T E R:
Dated: November 18, 2022
MARY M. ROWLAND
United States District Judge

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