Flowers v. Illinois Department of Corrections Stateville Northern Reception Center et al
Filing
292
MEMORANDUM Opinion and Order. Claude Owikoti's 231 , Victoria Plummer's 225 , and Jessica Ortegon's 228 motions for summary judgment are granted. Patricia Burke's motion 242 is granted with respect to Count I and denied w ith respect to Count III. Wexford's motion 235 is denied with respect to Count I and is granted with respect to Count III. On or before June 21, 2024, the parties shall submit a joint status report that includes a list of the remaining claims and defendants, the anticipated length of trial, and any trial conflicts in the months of October, November, or December 2024. Signed by the Honorable Jeremy C. Daniel on 6/3/2024. Mailed notice(vcf, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDREW LEE FLOWERS, JR.,
Plaintiff
v.
WEXFORD HEALTH SOURCES, INC.,
et al.,
Defendants
No. 19 CV 6423
Judge Jeremy C. Daniel
MEMORANDUM OPINION AND ORDER
Two months after undergoing corneal transplant surgery on his left eye,
Plaintiff Andrew Lee Flowers Jr. was arrested and incarcerated at the Kane County
Jail (“Kane County”) and the Stateville Correctional Facility (“Stateville”). Flowers
brings this suit, pursuant to 42 U.S.C. § 1983, alleging that various healthcare
workers at Kane County and Stateville violated his rights under the Eighth
Amendment through their deliberate indifference to his postoperative condition. (R.
147 (“TAC”).) 1 Flowers also asserts an Illinois state law medical malpractice claim.
(Id.) Before the Court are five motions for summary judgment filed by Wexford Health
Sources, Inc. (“Wexford”), and medical staff at Kane County and Stateville. (R. 235.) 2
For ECF filings, the Court cites to the page number(s) set forth in the document’s ECF
header unless citing to a particular paragraph or other page designation is more appropriate.
2 The four other moving defendants are Patricia Burke M.D., the physician-in-charge at
Kane County (R. 242), Victoria Plummer (R. 225) and Jessica Ortegon (R. 228), nurses at
Kane County (“together, “the Defendant Nurses”), and Claude Owikoti, a physician’s
assistant at Statesville. (R. 231.)
1
For the following reasons, Owikoti’s and the Defendant Nurses’ motions are granted.
Wexford’s and Dr. Patricia Burke’s motions are granted in part and denied in part.
BACKGROUND
The following facts are taken from the parties’ Local Rule 56.1 submissions, 3
the materials cited therein, and other aspects of the record in this case. All facts are
genuinely undisputed unless otherwise noted.
I.
FLOWERS UNDERGOES CORNEAL TRANSPLANT SURGERY.
On July 19, 2016, following an injury at work, Flowers was diagnosed with a
corneal laceration and ruptured globe of his left eye. (Burke’s Resp. to Pl.’s SOAF ¶¶
1–2.) He underwent surgery to repair the wound. (Id. ¶ 2.)
Six months later, in February 2017, Flowers was referred to an
ophthalmologist named Greg Berdy. (Id. ¶ 3; R. 246, Exhibit H (“Berdy Dep.”) at 8:12–
16.) Flowers complained to Dr. Berdy of tearing and blurry vision. (Burke’s Resp. to
See Owikoti’s Statement of Material Facts, (R. 233) (“Owikoti’s SOF”); Plaintiff’s
Response to Owikoti and Statement of Additional Facts, (R. 259) (“Pl.’s Resp. to Owikoti and
SOAF”); Owikoti’s Response to Plaintiff’s Statement of Additional Facts, (R. 279) (“Owikoti’s
Resp. to Pl.’s SOAF”); Burke’s Statement of Material Facts, (R. 241) (“Burke’s SOF”);
Plaintiff’s Response to Burke and Statement of Additional Facts, (R. 255) (“Pl.’s Resp. to
Burke and SOAF”); Burke’s Response to Plaintiff’s Statement of Additional Facts, (R. 274)
(“Burke’s Resp. to Pl.’s SOAF”); Plummer’s Statement of Material Facts, (R. 226) (“Plummer’s
SOF”); Plaintiff’s Response to Plummer and Statement of Additional Facts, (R. 261) (“Pl.’s
Resp. to Plummer and SOAF”); Plummer’s Response to Plaintiff’s Statement of Additional
Facts, (R. 277) (“Plummer’s Resp. to Pl.’s SOAF”); Ortegon’s Statement of Material Facts, (R.
229) (“Ortegon’s SOF”); Plaintiff’s Response to Ortegon and Statement of Additional Facts,
(R. 257) (“Pl.’s Resp. to Ortegon and SOAF”); Ortegon’s Response to Plaintiff’s Statement of
Additional Facts, (R. 278) (“Ortegon’s Resp. to Pl.’s SOAF”); Wexford’s Statement of Material
Facts, (R. 236) (“Wexford’s SOF”); Plaintiff’s Response to Wexford and Statement of
Additional Facts, (R. 255) (“Pl.’s Resp. to Wexford and SOAF”); Wexford’s Response to
Plaintiff’s Statement of Additional Facts, (R. 275) (“Wexford’s Resp. to Pl.’s SOAF”).
3
2
Pl.’s SOAF ¶ 3; Berdy Dep. at 19:9–11.) Dr. Berdy observed significant corneal
damage and diagnosed Flowers as legally blind. (Burke’s Resp. to Pl.’s SOAF ¶ 3.)
On November 9, 2017, Dr. Berdy performed a corneal transplant on Flowers’
left eye. (Id. ¶ 4; Berdy Dep. at 8:17–19.) Afterward, Dr. Berdy prescribed Flowers
four eye medications: an ointment called Erythromycin, an antibiotic ointment called
Tobradex, an anti-inflammatory drop to treat intraocular pressure and the attendant
risk of glaucoma called Istalol, and a steroid drop called Lotemax. (Burke’s Resp. to
Pl.’s SOAF ¶ 5.) Dr. Berdy prescribed Lotemax as part of Flowers’ life-long treatment
plan in light of his opinion that any corneal transplant surgery carries an inherent
life-long risk of rejection. (Id. ¶ 6; Berdy Dep. at 130:11–131:8.)
Flowers visited Dr. Berdy again on November 15 and December 1, 2017.
(Burke’s Resp. to Pl.’s SOAF ¶ 7.) During each visit, Dr. Berdy continued Flowers’
course of treatment on the four eye medications. (Id.)
At the December visit, Dr. Berdy instructed Flowers to return in four weeks.
(Id. ¶ 9.) Dr. Berdy also prescribed Flowers three one-month supply refills of the
Lotemax and Tobradex and twelve one-month refills of the Istalol and Erythromycin.
(Id. ¶ 8.) Records from the Walgreens where Flowers picked up these medicines show
that Flowers’ Lotemax prescription had three refills remaining as of December 11,
2017. (Id.) The parties dispute whether these prescriptions had an end date of
December 31, 2017. (Id. ¶¶ 8–9; Pl.’s Resp. to Burke and SOAF ¶ 31.)
3
II.
FLOWERS IS TAKEN INTO CUSTODY.
However, on December 30, 2017, before Flowers could visit Dr. Berdy again,
Flowers was arrested and taken into custody on an outstanding warrant. (Burke’s
Resp. to Pl.’s SOAF ¶ 10.)
A.
Flowers Enters Kane County Jail.
Flowers entered Kane County’s custody on January 8, 2018. (Id. ¶ 11.) Kane
County’s policies require that, upon arrival, all individuals undergo an intake
screening performed by an emergency medical technician (“EMT”). (Id. ¶¶ 14–15.) If
a patient reports any medications, the policy requires the examining EMT to note
such on their intake form. (Id.) The EMT then must attempt to verify the
prescription’s validity with the patient’s community provider or pharmacy. (Id.) If
verification is not possible, the physician-in-charge would then use her medical
judgment to decide whether to prescribe or discontinue the medication. (Id. ¶ 16.)
Consistent with these policies, when Flowers arrived at Kane County, he was
interviewed by EMT Melissa Lamesch. (Id. ¶ 17.) Lamesch noted on Flowers’ intake
form that he had sustained an injury to his left eye in October 2017 and was taking
Erythromycin, Tobradex, Istalol, and Lotemax. (Id.) She also noted that Flowers was
arrested before he could complete a follow-up with his doctor. (Id.)
On January 9, 2018, EMT David Bullis received a “Patient Task” asking him
to call the pharmacy Flowers reported having filled his prescriptions, Walgreens, to
verify his prescriptions. (Id. ¶ 18; Pl.’s Resp. to Burke and SOAF ¶ 30; R. 246, Exhibit
G (“Bullis Dep.”) at 55:2–23.) When Bullis called, the pharmacy reported that none of
4
Flowers’ identified eye medicines were current prescriptions, and they were last
refilled more than a year and a half ago. (Burke’s Resp. to Pl.’s SOAF ¶ 18; Pl.’s Resp.
to Burke and SOAF ¶¶ 30–31; Bullis Dep. at 58:14–16.)
Dr. Burke, the physician-in-charge at Kane County, reviewed Flowers’ intake
form on January 10. (Burke’s Resp. to Pl.’s SOAF ¶ 20; R. 246, Exhibit B (“Burke
Dep.”) at 143:1–18.) Based on her review, Dr. Burke understood that Flowers had
surgery a few months prior and that he had likely been prescribed Erythromycin,
Tobradex, Istalol, and Lotemax in connection with that surgery. (Burke’s Resp. to
Pl.’s SOAF ¶ 20; Burke Dep. at 147:12–14.) Upon learning that Flowers’ medicines
could not be verified by Walgreens, Dr. Burke made the medical judgment to issue
her own prescription for Istalol in its generic form, Timolol. (Burke’s Resp. to Pl.’s
SOAF ¶ 21; Pl.’s Resp. to Burke and SOAF ¶ 32; Burke Dep. at 156:9–157:12.) Dr.
Burke prescribed Flowers one Timolol drop daily in his left eye. (R. 234-1 at 11.)
Each of the Defendant Nurses administered the Timolol drops to Flowers as
directed by Dr. Burke during their shifts on three different occasions (meaning that
Flowers received Timolol drops six times from the Defendant Nurses). (Plummer’s
Resp. to Pl.’s SOAF ¶ 49; Ortegon’s Resp. to Pl.’s SOAF ¶ 23.) It is disputed whether
Flowers requested or informed the Defendant Nurses that he needed additional
medicines for his eye. (Plummer’s Resp. to Pl.’s SOAF ¶ 28; Ortegon’s Resp. to Pl.’s
SOAF ¶ 28; R. 246, Exhibit A (“Flowers Dep.”) 63:6–65:15.) Further, although it is
disputed whether Flowers reported eye pain while at Kane County jail, he
experienced emotional distress due to the fear of becoming blind in his left eye.
5
(Burke’s Resp. to Pl.’s SOAF ¶¶ 37, 51; Flowers Dep. at 63:6–65:15, 289:15–19.)
During his time at Kane County, the Timolol that Dr. Burke prescribed was the only
medication that Flowers received for his eye. (Burke’s Resp. to Pl.’s SOAF ¶ 25.)
B.
Flowers is Transferred to Stateville.
On January 18, 2018, Flowers was transferred from Kane County to Stateville.
(Id. ¶ 26.) Upon arrival at Stateville, Claude Owikoti, a physician’s assistant, met
with Flowers for a physical examination. (Owikoti’s Resp. to Pl.’s SOAF ¶ 28.) Flowers
told Owikoti that he was having trouble with his eyes, specifically complaining of
blurry vision in his left eye related to a traumatic eye injury in June 2016. (Id.; Pl.’s
Resp. to Owikoti and SOAF ¶ 35; R. 234-1 at 5; R. 234-3, Exhibit 4 (“Owikoti Dep.”)
47:5–10, 72:1–13.) Without identifying any medicines by name, Flowers told Owikoti
that he needed additional medication for his eye. (Owikoti’s Resp. to Pl.’s SOAF ¶ 28;
Flowers Dep. at 113:8–22, 117:11–14.)
Owikoti examined Flowers’ left eye. (Owikoti’s Resp. to Pl.’s SOAF ¶ 28;
Owikoti Dep. at 50:19–20.) He noted that Flowers’ pupils were reacting to light and
had no redness or swelling. (Pl.’s Resp. to Owikoti and SOAF ¶ 36; Owikoti Dep. at
50:23–51:3, 52:1–7.) At the conclusion of the visit, Owikoti continued Flowers on the
Timolol eye drops, which was the only current eye medication listed in his transfer
records from Kane County. (Owikoti’s Resp. to Pl.’s SOAF ¶ 26; Pl.’s Resp. to Owikoti
and SOAF ¶ 39; Owikoti Dep. 55:2–14; R. 234-1 at 11.) He did not prescribe Flowers
any new medications. (Owikoti’s Resp. to Pl.’s SOAF ¶ 28.)
6
III.
FLOWERS IS TRANSFERRED TO SHERIDAN CORRECTIONAL CENTER AND
RELEASED FROM CUSTODY.
In February 2018, Flowers was transferred to Sheridan Correctional Center
(“Sheridan”), where he remained until the completion of his sentence in December
2019. (Burke’s Resp. to Pl.’s SOAF ¶¶ 28, 32.) Upon intake, Flowers was referred for
a visit with Sheridan’s on-site ophthalmologist, Dr. Russell. (Id. ¶ 28.)
On March 6, 2018, Dr. Russell treated Flowers and prescribed a steroid eye
drop called Prednisolone to reduce the risk that his corneal transplant would be
rejected. (Id. ¶ 29.) The parties dispute whether Wexford’s policies permitted Dr.
Russell fifteen-minute appointments with his patients and whether Wexford had a
policy for obtaining a patient’s medical records. (Pl.’s Resp. to Wexford and SOAF ¶¶
33, 35.) Nevertheless, contrary to his practice outside of Wexford, Dr. Russell did not
contact Dr. Berdy despite knowing of Flowers’ recent surgery. (Id. ¶ 35.) Additionally,
there is evidence that, since January 2018, Wexford staff knew that Dr. Russell was
frequently absent from work, internally describing him as unreliable and ineffective,
and that these shortcomings were causing a backlog of eye appointments for inmates.
(Id. ¶¶ 36–37.) Wexford, though, did not replace Dr. Russell until that fall. (Id. ¶ 37.)
Further, treatment providers at Sheridan like Dr. Russell, may seek collegial
review from a specialist at the University of Illinois at Chicago Medical Center
(“UIC”). (Wexford’s Resp. to Pl.’s SOAF ¶ 66.) During Flowers’ stay at Sheridan, Dr.
Russell requested twelve referrals for Flowers to see an eye specialist at UIC, which
Wexford approved. (Id. ¶¶ 48, 65, 67.) Accordingly, in May, Flowers was seen by
Salima Hassanaly, an ophthalmology fellow at UIC. (Owikoti’s Resp. to Pl.’s SOAF ¶
7
31.) Hassanaly determined that Flowers had suffered a “[f]ailed corneal transplant
due to [the] lapse
in treatment with prednisolone (drops that prevent
failure/rejection) in the critical early postoperative period.” (Id.) Hassanaly defined
the “critical early postoperative period” as the first few months following a corneal
transplant. (Id.)
Flowers’ expert witness, Dr. Raiji, opined that Flowers not receiving steroid
drops during January and March of 2018 led to his corneal transplant rejection.
(Owikoti’s Resp. to Pl.’s SOAF ¶ 35; R. 234-11 (“Raiji Report”) ¶ 15.) She also opined
that the rejection necessitated increased steroid dosing, multiple visits to
practitioners, and caused a life-long risk of glaucoma. (Id.) Further, Dr. Raiji opined
that the lapse in steroid treatment may also have exacerbated the loss of peripheral
vision in Flowers’ left eye. (Id. ¶ 36.)
IV.
PROCEDURAL HISTORY
Flowers’ third amended complaint asserts that Dr. Burke, Owikoti, the
Defendant Nurses and Wexford violated the Eighth Amendment (Count I), 4 and an
Illinois medical malpractice claim against Dr. Burke and Wexford (Count III). Dr.
Burke, Owikoti, the Defendant Nurses, and Wexford have each filed motions for
summary judgment on Flowers’ claims. (R. 225; R. 228; R. 231; R. 235; R. 242.)
LEGAL STANDARD
“Summary judgment is appropriate when ‘there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’” Donald
28 U.S.C. § 1331 confers this Court with jurisdiction over Count I and the Court may
exercise supplemental jurisdiction over Count III pursuant to 28 U.S.C.§ 1367(a).
4
8
v. Wexford Health Sources, Inc., 982 F.3d 451, 457 (7th Cir. 2020) (quoting Fed. R.
Civ. P. 56(a)). “And summary judgment is inappropriate ‘if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.’” Walker v. Wexford
Health Sources, Inc., 940 F.3d 954, 963 (7th Cir. 2019) (citation omitted). In ruling on
the present motions, the Court “interpret[s] all facts and draw[s] all reasonable
inferences in favor of the nonmoving party.” Id.
ANALYSIS
I.
MOTIONS TO STRIKE
A.
Dr. Burke
The Court begins by addressing Dr. Burke’s motion to strike Flowers’ expert,
Dr. Raiji. (R. 243 at 4.) “The admission of expert testimony is specifically governed by
Federal Rule of Evidence 702 and the principles announced in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 113 (1993).” Smith v. Ford Motor Co., 215 F.3d 713, 717–
18 (7th Cir. 2000). “Rule 702 states: ‘If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise.”
Heard v. Ill. Dep’t of Corr., No. 06 C 0644, 2012 WL 2524748, at *1 (N.D. Ill. June 29,
2012) (citing Fed. R. Civ. P. 702). “Together, Rule 702 and Daubert provide that an
expert’s testimony is admissible if: 1) the witness is qualified, 2) the expert’s
methodology is reliable, and 3) the testimony will assist the trier of fact to understand
the evidence or to determine a fact in issue.” Zollicoffer v. Gold Standard Baking,
9
Inc., 335 F.R.D. 126, 145 (N.D. Ill. 2020) (citing Myers v. Ill. Cent. R.R. Co., 629 F.3d
639, 644 (7th Cir. 2010).
“An expert’s proponent has the burden of establishing the admissibility of the
opinions by a preponderance of the evidence.” Varlen Corp. v. Liberty Mut. Ins. Co.,
924 F.3d 456, 459 (7th Cir. 2019). “The Rule 702 inquiry ‘is a flexible one,’” Zollicoffer,
335 F.R.D at 145 (quoting Daubert, 509 U.S. at 594), focusing “solely on principles
and methodology, not on the conclusions they generate.” Winters v. FruCon Inc., 498
F.3d 734, 742 (7th Cir. 2007). “The district court has significant latitude in
determining how to measure the reliability of the proposed expert and whether the
testimony is in fact reliable.” Ortiz v. City of Chi., 656 F.3d 523, 536 (7th Cir. 2011).
Further, “[d]eterminations on admissibility should not supplant the adversarial
process; ‘shaky’ expert testimony may be admissible, assailable by its opponents
through cross-examination.” Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010).
Dr. Burke first attacks Dr. Raiji’s qualifications by arguing that Dr. Raiji, as
an ophthalmologist, lacks foundation to render a standard of care opinion for Dr.
Burke, an internal medicine physician. (R. 243 at 4.) “While a doctor’s medical degree
does not make him qualified to opine on all medical subjects, the doctor need not be
a specialist in a given field as long as he has the knowledge, training, and education
to reach his conclusions.” Vandervelden v. Saint Louis Univ., 589 F. Supp. 3d 944,
951 (S.D. Ill. 2022) (citing Gayton, 593 F.3d at 953). The relevant medical testimony
in this case concerns an eye condition, a topic on which Dr. Raiji can opine given her
background, training, and experience working in ophthalmology. Specifically, Dr.
10
Raiji has been an ophthalmologist since 2012. (Raiji Report at 41.) Dr. Raiji’s
curriculum vitae reflects that she obtained her Doctor of Medicine from the
University of Michigan in 2007 and completed her ophthalmology residency at the
George Washington University Hospital in 2011. (Id. at 39.) Dr. Raiji has maintained
board certification with American Board of Ophthalmology throughout her career and
is a member of four professional ophthalmology organizations. (Id.) She has also
worked as an ophthalmologist in clinical settings and as a Professor of
Ophthalmology. (Id.) The Court accordingly declines to strike Dr. Raiji as an expert
on this basis. (R. 274 at 33.)
Dr. Burke next argues that Dr. Raiji’s testimony should be stricken because
her “opinion is based on a wrong fact.” (R. 243 at 5–6.) This argument refers to Dr.
Raiji’s opinion that Dr. Burke did not reconcile Flowers’ medications as the Wexford
guideline required. (See Burke’s Resp. to Pl.’s SOAF ¶ 34.) But the “soundness of the
factual underpinnings of the expert’s analysis and the correctness of the expert’s
conclusions based on that analysis are factual matters to be determined by the trier
of fact”; they do not bear on admissibility. Kawasaki Kisen Kaisha, Ltd. v. Plano
Molding Co., 782 F.3d 353, 360 (7th Cir. 2015). Accordingly, Dr. Burke’s motion to
strike Dr. Raiji as an expert is denied.
B.
Wexford
Next, Wexford objects to the Court relying upon any testimony from Dr. Russell
because he was not disclosed as an expert witness. (Wexford’s Resp. to Pl.’s SOAF ¶
33.) “[A]ll witnesses who are to give expert testimony under the Federal Rules of
11
Evidence must be disclosed under Rule 26(a)(2)(A).” Musser v. Gentiva Health Servs.,
356 F.3d 751, 756 (7th Cir. 2004). An expert witness may offer expert opinions based
on their “knowledge, skill, experience, training, or education.” Varlen Corp., 924 F.3d
at 459. Lay witnesses, however, offer testimony “rationally based on [their]
perception.” Fed. R. Civ. P. 701(a). Here, Dr. Russell is not offering expert opinion
based on his medical training; rather, his testimony describes his personal knowledge
of Wexford’s policies as he understood them with respect to his day-to-day job duties.
(See Pl.’s Resp. to Wexford and SOAF ¶¶ 33–35.) Wexford’s objection is overruled.
II.
DELIBERATE INDIFFERENCE TO A SERIOUS MEDICAL NEED.
The Court now turns to the substance of Flowers’ claims. Flowers brings his
federal claims pursuant to § 1983, which “creates a private right of action against any
‘person’ who violates the plaintiff’s federal rights while acting under color of state
law.” Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th Cir. 2021) (quoting
§ 1983). He first charges Dr. Burke, Owikoti, the Defendant Nurses, and Wexford,
with deliberate indifference to his postoperative condition in violation of the Eighth
Amendment. “The Eighth Amendment proscribes ‘deliberate indifference to serious
medical needs of prisoners’ amounting to ‘the unnecessary and wanton infliction of
pain[,]’” Stockton v. Milwaukee Cnty., 44 F.4th 605, 614 (7th Cir. 2022) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)), because, in such cases, it can be fairly
said that “the official has inflicted cruel and unusual punishment.” Wilson v. Seiter,
501 U.S. 294 (1991). The Court proceeds by analyzing the evidence against Dr. Burke,
12
Owikoti, and the Defendant Nurses in their personal capacities, and then analyzing
the evidence against Wexford.
A.
Dr. Burke, Owikoti, and the Defendant Nurses
With respect to Dr. Burke, Owikoti, and the Defendant Nurses, “[t]o determine
if the Eighth Amendment has been violated” the Court “perform[s] a two-step
analysis, first examining whether [Flowers] suffered from an objectively serious
medical condition, and then determining whether the individual defendant was
deliberately indifferent to that condition.” Petties v. Carter, 836 F.3d 722, 727–28 (7th
Cir. 2016). There must also be evidence to support a jury finding “that delay in
medical treatment exacerbated an injury.” Stockton, 44 F.4th at 615.
As in many cases of this nature, the parties’ dispute turns on the issue of
deliberate indifference. E.g., Walker, 940 F.3d at 964. To determine if any of the
parties are entitled to summary judgment, the Court must “look at the totality of
[Flowers’] medical care” to determine “whether that care evidences deliberate
indifference to serious medical need.” Petties, 836 F.3d at 727–28. “Deliberate
indifference is a subjective mental state,” Rasho v. Jeffreys, 22 F.4th 703, 710 (7th
Cir. 2022), and, thus, Flowers must come forward with evidence of “something more
than negligence or even medical malpractice[.]” Reck v. Wexford Health Sources, Inc.,
27 F.4th 473, 483 (7th Cir. 2022); see also Estelle, 429 U.S. at 10 (“[A]n inadvertent
failure to provide adequate medical care cannot be said to constitute ‘an unnecessary
and wanton infliction of pain.’”). Rather, “‘[s]omething akin to recklessness’ is
needed,” Reck, 27 F.4th at 483 (citation omitted); i.e., there must be evidence that the
caregiver knew of and consciously disregarded a substantial risk of harm to him.
13
Rasho, 22 F.4th at 710. Because “[w]hether a reasonable jury could possibly find for
the plaintiff depends on the knowledge each individual defendant had regarding
[Flowers’] condition, and how each defendant responded to [his] requests for medical
attention,” the Court analyzes the evidence of each respective defendant’s subjective
mental state in turn. Gayton, 593 F.3d at 621.
1.
Dr. Burke
Flowers argues that a jury could conclude that Dr. Burke ignored an obvious
risk to Flowers. (R. 254 at 12–13.) While Flowers is correct that, “[n]ormally a jury
may infer the subjective (awareness of a substantial risk) from the objective
(obviousness of a risk),” “[c]ases of medical judgment are different.” Estate of Cole by
Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). “[D]eliberate indifference may be
inferred based upon a medical professional’s erroneous treatment decision only when
the medical professional’s decision is such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate that the person
responsible did not base the decision on such a judgment.” Id. at 261–62.
The Court must “defer to medical professionals’ treatment decisions unless
there is evidence that ‘no minimally competent professional would have so responded
under those circumstances’” because “medical professionals may choose from ‘a range
of acceptable courses based on prevailing standards in the field[.]’” Walker, 940 F.3d
at 965 (citation omitted). “A treating physician” like Dr. Burke, “[b]y claiming that
[s]he was exercising [her] medical judgment” is “‘asserting that [s]he lacked a
sufficiently culpable mental state, and if no reasonable jury could discredit that claim,
the doctor is entitled to summary judgment.’ The plaintiff cannot reach the jury
14
without evidence to overcome that deference to medical judgment.” Wilson v. Wexford
Health Sources, Inc., 932 F.3d 513, 520 (7th Cir. 2019) (citation omitted).
Dr. Burke argues that she is entitled to summary judgment because there is
no evidence that her treatment was a substantial departure from accepted
professional judgment. (R. 273 at 8–10.) Specifically, Dr. Burke testified that she
decided to discontinue the steroid by considering how steroids themselves carry risks,
they can damage the eye by causing intraocular pressure or cataracts, and how
Flowers had been prescribed medication to reduce inner eye pressure. (Burke’s Resp.
to Pl.’s SOAF ¶¶ 22, 34; Burke Dep. 157:8–12.) Dr. Burke also decided that Flowers
was not likely taking the four medications he reported at intake because two months
had passed since his surgery, Flowers’ pharmacy could not verify the prescriptions,
and patients commonly report an outdated list of medications. (Burke’s Resp. to Pl.’s
SOAF ¶ 22.) There is also evidence from Dr. Burke’s expert, Dr. Nijm, approving of
Dr. Burke’s treatment decisions. Specifically, Dr. Nijm, approved of Dr. Burke’s
medical judgment that steroids carry known side effects and added that using
steroids does not guarantee the transplant will not be rejected. (R. 246 at 556–67.)
For his part, Flowers points to the opinions of his expert, Dr. Raiji. (R. 254 at
12–13.) Dr. Raiji opines that Dr. Burke failed to follow the applicable standard of care
when she “failed to determine what kind of medication Flowers needed and failed to
determine what medication was prescribed to him.” (Raiji Report at 27–28.) In Dr.
Raiji’s opinion, the evidence shows that there was a discrepancy between what
Flowers reported to be taking and what Walgreens reported. (Id.) In such
15
circumstances, “[s]tandard of care would have dictated at this point to follow up.” (Id.
at 28.) As an example, Dr. Raiji opined that Dr. Burke could have “called [Flowers’]
surgeon, obtain[ed] his records or consult[ed] with a doctor of similar qualifications
to [] Flowers’ s surgeon.” (Id.) Flowers also relies upon testimony from Dr. Hassanaly
that the delay of steroidal treatment caused the failed transplant. (R. 254 at 14.)
Such evidence is insufficient to create a genuine factual dispute as to deliberate
indifference, however. “Mere differences of opinion among medical personnel
regarding a patient’s appropriate treatment do not give rise to deliberate
indifference.” Estate of Cole, 94 F.3d at 261 (citing Estelle, 429 U.S. at 107); Stockton,
44 F.4th at 616 (“[E]vidence that some medical professionals would have chosen a
different course of treatment is insufficient to make out a constitutional claim.”);
Reck, 27 F.4th at 484–85. Flowers may disagree with Dr. Burke’s decision to
discontinue the steroid drop, but absent evidence that “no minimally competent
professional would have so responded under those circumstances,’” his claim fails.
Walker, 940 F.3d at 965 (citation omitted). The Court therefore grants judgment for
Dr. Burke on Count I.
2.
Owikoti
With respect to Owikoti, Flowers argues that the evidence creates a genuine
dispute of material fact about whether Owikoti ignored an obvious risk to him,
departed from accepted professional judgment, or persisted in knowingly ineffective
16
treatment. (R. 258 at 12.) Even when viewed in the light most favorable to Flowers,
though, the evidence shows that Owikoti is entitled to judgment in his favor.
Owikoti’s expert opined that he complied with the standard of care and there
was no medical basis for Owikoti to know that Flowers’ unspecified request for
“additional medications” meant that he was seeking steroid treatment. (Pl.’s Resp. to
Owikoti and SOAF ¶ 59.) Owikoti’s expert further said nothing in Flowers’ records
would have put a physician on notice that Flowers was at a serious risk of harm. (Id.
¶ 61.) Critically, Flowers has supplied no evidence to the contrary; his expert, Dr.
Raiji, gave no testimony about Owikoti. (Id. ¶ 56.) Because Flowers cannot point to
evidence that Owikoti’s treatment was outside the bounds of medical professionalism,
no reasonable jury could return a verdict in his favor.
Similarly, there is no evidentiary support for a jury to conclude that Owikoti
substantially departed from accepted professional judgment or persisted in
knowingly ineffective treatment. (R. 258 at 13); see Petties, 836 F.3d at 729–30.
Though Flowers said he needed “more medicines,” he did not tell Owikoti that his
Timolol was ineffective and there is no evidence Owikoti should have known Flowers
meant steroid treatment. For all these reasons, the Court grants judgment for
Owikoti on Count I.
3.
The Defendant Nurses
The Court now considers the Defendant Nurses’ motions for summary
judgment. Each Defendant Nurse supplied Flowers with his Timolol eyedrops on
three separate occasions during his time at Kane County. (Plummer’s Resp. to Pl.’s
SOAF ¶ 21; Ortegon Resp. to Pl.’s SOAF ¶ 23.) The same basic principles applicable
17
to Dr. Burke and Owikoti apply to the Defendant Nurses, but it is also “important to
take into account . . . that . . . . [a]s a general matter, a nurse can, and indeed must,
defer to a treating physician’s instructions.” Reck, 27 F.4th at 485.
Still, summary judgment is not warranted if some evidence would permit a
jury to conclude that the Defendant Nurses demonstrated “blind or unthinking”
deference to Dr. Burke. Id. Such is shown by evidence that either nurse was aware of
Flowers’ pain and the ineffectiveness of the medications but delayed in notifying Dr.
Burke. Id. For example, in Berry v. Peterman, the Seventh Circuit reversed a grant
of summary judgment where a nurse received the plaintiff’s complaints of pain for
nearly six weeks, but never followed up with the doctor on whether an examination
was necessary. 604 F.3d 435, 443 (7th Cir. 2010).
There is no comparable evidence in this case. Rather, the evidence shows the
Defendant Nurses followed Dr. Burke’s treatment plan, and the record does not
indicate that they had reason to know that the plan may have been ineffective.
“Simply adhering to the medication regime prescribed” does not show deliberate
indifference for a nurse even if doing so “may not have been the optimal course to
follow in light of [the plaintiff’s] complaints of pain.” Reck, 27 F.4th at 48.
Unlike Berry, the Defendant Nurses did not know Flowers was in pain because
he did not tell them so. Flowers response brief says that there is evidence that the
Defendant Nurses “knew about Flowers’ pain and discomfort,” citing to paragraphs
22, 25, 27–28 of his Statement of Additional Facts. (R. 261 at 14; see also R. 256 at 14
18
(citing to Ortegon’s Resp. to Pl.’s SOAF ¶¶ 23, 28.) None of those paragraphs describes
Flowers telling the Defendant Nurses about experiencing pain, however.
Only paragraph 28 describes Flowers’ interaction with the Defendant Nurses.
(See Plummer’s Resp. to Pl.’s SOAF ¶ 28.) This paragraph is consistent with Flowers
testimony that “every time” medical personnel “came in[to]” his cell he would “ ask[]
them about [his] eye drops.” (Compare id., with Flowers Dep. 65:11–15.) These
requests would not have alerted the Defendant Nurses that Dr. Burke’s treatment
plan was ineffective. Absent any proof that the Defendant Nurses knew that Flowers
was referring to steroid treatment and that not receiving such put him at risk, there
was no reason for either nurse to question Dr. Burke’s prescribed treatment plan. In
sum, there is no evidence to conclude that either of the Defendant Nurses were
deliberately indifferent toward Flowers’ objectively serious medical condition. The
Court grants judgment for the Defendant Nurses on Count I.
B.
Wexford
The Court now considers Flowers’ § 1983 claim against Wexford. As set forth
above, Flowers has failed to adduce evidence of deliberate indifference based on the
individual defendants’ actions. But the Court must also consider whether Wexford
“might be liable even if its individual agents are not.” Glisson, 849 F.3d at 378. “[I]f
institutional policies are themselves deliberately indifferent to the quality of care
provided, institutional liability is possible.” Id. “This is a high bar.” Dean, 18 F.4th at
235. “If a municipality’s action is not facially unconstitutional, the plaintiff ‘must
prove that it was obvious that the municipality’s action would lead to constitutional
violations and that the municipality consciously disregarded those consequences.’”
19
Id. (citation omitted). “Finally, the plaintiff must show that the municipal action was
‘the ‘moving force’ behind the federal-rights violation.’” Id. (citation omitted). The
Court addresses each of the five policies Flowers identifies as indicative of Wexford’s
deliberate indifference toward the medical needs of incarcerated persons in turn.
1.
Policy of Delaying Specialist Referrals
Flowers asserts that Wexford had a policy of delaying specialist referrals. (TAC
¶¶ 20, 41.) Wexford argues summary judgment is warranted because there is no
evidence that it had any control over UIC’s scheduling or that Wexford was aware of
any delays that would amount to constitutional violations such that it would have
been put on notice. (R. 244 at 3–4.) Flowers did not respond to this argument in his
response brief, and thus waived any argument to the contrary. See Palmer v. Marion
Cnty., 327 F.3d 588, 597–98 (7th Cir. 2003) (holding that claims not addressed in a
summary judgment opposition brief are deemed abandoned).
Even so, there is no evidence that earlier appointments were available and/or
that Wexford denied them, and the undisputed evidence shows that Wexford
approved all twelve specialist referrals sought while Flowers was at Sheridan. (Pl.’s
Resp. to Wexford and SOAF ¶¶ 67–69.) And Flowers has supplied no evidence that
other inmates experienced delays in being referred to UIC. As such, there is no
evidence from which a jury could conclude that Wexford had a deliberately indifferent
policy. Indeed, in Walker, the Seventh Circuit concluded that evidence that Wexford
knew “some referrals slipped through the cracks” was not proof of “Wexford’s
knowledge that constitutionally necessary referrals were not happening with such
20
frequency that it ignored an obvious risk of serious harm.” Walker, 940 F.3d at 967.
Accordingly, it is evident that, in the absence of any proof that Wexford had any
knowledge of delays, Flowers’ claim cannot survive summary judgment.
2.
Verification Policy
Second, Wexford seeks summary judgment on Flowers claim that Wexford has
a policy of limiting or discouraging providers from determining the proper medication
inmates were prescribed by community providers. (TAC ¶ 42; R. 244 at 9–10.) Flowers
again failed to respond to the arguments raised in Wexford’s motion and so he has
waived any argument to the contrary. See Palmer, 327 F.3d at 597–98. Regardless,
there is no evidence that Wexford was subjectively aware of any issues with its policy
of requiring prison officials to verify new inmates’ medicines by contacting the
inmate’s community prescribing clinician or pharmacy.
3.
Fifteen-Minute Visit Per Patient Policy and
No Policy for Receiving Outside Medical Records
Next, Wexford seeks summary judgment on Flowers’ claims that it maintained
a fifteen-minute visit per patient policy that could only be extended in the case of an
emergency and had no policy for obtaining a patient’s medical records. (See R. 262 at
13–14; R. 276 at 12–14.) Dr. Russell testified that he believed he could have provided
better care if Wexford permitted longer appointments. (Pl.’s Resp. to Wexford and
SOAF ¶ 33.) Dr. Russell complained to the Sheridan Health Care Administrator that
the fifteen-minute appointments felt rushed but was told that “because of the amount
of inmates that needed to be seen, the appointments had to be kept [to] four per hour.
(Id.) This meant that for patients with complex medical histories requiring testing
21
like Flowers, Wexford policies required Dr. Russell to recall him at a future date,
which could be three to four weeks in the future. (Id.) Also, due to Wexford not having
any policy for obtaining prior records, contrary to his practice outside of Wexford, Dr.
Russell did not contact Dr. Berdy upon learning of Flowers’ recent surgery. (Id. ¶ 35.)
This evidence fails to create a genuine fact dispute. Even when viewed in the
light most favorable to Flowers, the absence of evidence that Wexford knew that its
fifteen-minute visit per patient policy or lack of having a policy for obtaining a
patient’s medical records was risking constitutional violations prevents the
conclusion that Wexford was deliberately indifferent toward the medical needs of
prisoners.
4.
Staffing of Sheridan’s Ophthalmologist Position
Finally, Wexford argues it is entitled to summary judgment because there is
no evidence that Wexford was deliberately indifferent by not replacing Dr. Russell
sooner than Fall 2018. (R. 276 at 14.) Although Wexford knew that Dr. Russell was
frequently absent and ineffective causing appointment backlogs as early as January
2018, they argue that they did not disregard the risk that Dr. Russell was providing
constitutionally deficient care. E.g., Rasho, 22 F.4th at 710 (concluding no deliberate
indifference because “the evidence establishes that IDOC made reasonable efforts to
cure the deficiencies in the five areas identified in the plaintiffs claim and to alleviate
the staffing shortage”). Rather, Wexford asserts that the evidence shows that it
contracted with additional providers to periodically assist at Sheridan. (Wexford’s
22
Resp. to Pl.’s SOAF ¶ 37.) Wexford further explained that the delay in replacing Dr.
Russell occurred because it is difficult to find providers for correctional medicine. (Id.)
However, there is evidence that, even in January 2018, a Wexford Regional
manager responded to an email about Dr. Russell not showing up for work by saying
“[t]his is at least the [fifth] time . . . something like this has happened.” (264-27 at 7.)
Because this evidence supports concluding that Wexford had prior knowledge of
repeated issues causing a backlog of eye appointments but delayed in replacing him
even before Flowers arrived at Sheridan, Wexford’s motion for judgment is denied.
III.
MEDICAL MALPRACTICE
Flowers also brings Illinois state law medical malpractice claims against Dr.
Burke and Wexford, Count III. The Court addresses Dr. Burke and Wexford’s
procedural arguments before addressing each respective party’s liability.
A.
Procedural Arguments
First, Dr. Burke argues that Flowers failed to amend his complaint to attach
the requisite affidavit under Illinois state law. (R. 243 at 13–14.) Illinois law requires
medical malpractice plaintiffs to “file an affidavit, attached to the original and all
copies of the complaint,” stating that “there is a reasonable and meritorious cause”
for litigation. Young v. United States, 942 F.3d 349, 350 (7th Cir. 2019) (quoting 735
ILCS 5/2-622(g)). However, § 622(g)’s requirement that an affidavit be attached to a
complaint is a procedural rule that does not apply when an Illinois medical
malpractice claim is filed in federal court. Id. at 351. Instead, Federal Rule of Civil
Procedure 8, which does not require attachments to a complaint, controls. Id. In
federal court, summary judgment is the deadline for complying with § 622(g). Id. at
23
352–53. Even after a motion for summary judgment is filed, Rule 56(d) allows the
Court to grant a plaintiff additional time to comply. Id. at 352. Considering Young’s
liberal interpretation of the affidavit requirement, the fact that Flowers attached the
affidavit to his summary judgment response and did not disclose it at an earlier time
is not fatal to his claim. Id. at 351.
Because Rule 8 does not require a complaint to have attachments, it follows
that Flowers did not need to amend his complaint to properly submit the report. (See
R. 273 at 12–13.) Dr. Burke’s argument that Flowers could not properly submit the
report by attaching it to his response brief because “[a] Plaintiff cannot amend his
complaint in response to summary judgment,” is therefore misplaced. (Id.) The Court
accordingly concludes that Flowers has sufficiently complied with § 622(g) by
attaching his expert’s affidavit to his response brief.
Second, Wexford argues that Flowers’ malpractice claim must be dismissed as
untimely. (R. 276 at 3–6.) Illinois requires malpractice plaintiffs to file their action
within two years “after the date on which the claimant knew, or through the use of
reasonable diligence should have known, or received notice in writing of the existence
of the injury or death for which damages are sought in the action, whichever of such
date occurs first[.]” 735 ILCS 5/13-212(a). “[A]ll that is required to start the statute
of limitations running is knowledge of the injury and that the defendant or an
employee of the defendant acting within the scope of his or her employment may have
caused the injury.” Arteaga v. United States, 711 F.3d 828, 831 (7th Cir. 2013).
Wexford’s argument fails, because even assuming without deciding that the operative
24
date was May 2018, Flowers’ first amended complaint, which first named Wexford,
“relates back to the date of the original complaint for purposes of tolling the statute
of limitations[.]” Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001; (R. 19.)
Flowers’ first complaint was filed on September 23, 2019, making the operative date
within the applicable limitations period. (R. 1.)
B.
There is a Genuine Dispute of Material Fact Regarding
Whether Dr. Burke Committed Malpractice.
“Under Illinois law, a medical malpractice plaintiff must establish the
following elements: “(1) the standard of care in the medical community by which the
[medical provider’s] treatment was measured; (2) that the [medical provider] deviated
from the standard of care; and (3) that a resulting injury was proximately caused by
the deviation from the standard of care.” Midland State Bank v. United States, 634
F. Supp. 3d 498, 511 (N.D. Ill. 2022).
First, Dr. Burke argues that Flowers cannot show any standard of care
deviation because Dr. Raiji “only criticized Dr. Burke for purportedly not following
Wexford’s guideline for medication reconciliation at intake.” (R. 243 at 14–15.) As
stated above, however, Flowers has presented a dispute of fact as to this issue, since
Dr. Raiji testified that Dr. Burke should have reconciled Flowers’ medications upon
learning of his recent surgery. (See Raiji Report ¶ 114.)
Second, Dr. Burke argues that there is no evidence to support a jury finding in
Flowers’ favor regarding causation and damages. (R. 243 at 15.) Not so. Dr. Raiji and
Dr. Hassanaly concluded that Flowers has suffered a corneal transplant rejection.
(Burke’s Resp. to Pl.’s SOAF ¶¶ 30, 34.) Dr. Raiji also opined that the cause of the
25
rejection was a lapse in steroid drops between January and March of 2018. (Burke’s
Resp. to Pl.’s SOAF ¶ 34.) This testimony is sufficient to create a genuine dispute of
material fact regarding whether Dr. Burke’s failure to prescribe Flowers additional
medication constituted malpractice. Accordingly, Dr. Burke’s motion for summary
judgment on Count III is denied.
C.
There is No Genuine Dispute of Material Fact Regarding
Whether Wexford Is Vicariously Liable for Dr. Burke.
Flowers also seeks to hold Wexford vicariously liable for Dr. Burke’s actions.
“Generally, a person injured by the tortious action of another must seek his or her
remedy from the person who caused the injury.” Lawlor v. N. Am. Corp. of Ill., 983
N.E.2d 414, 427 (Ill. 2012). “The principal-agent relationship is an exception to this
general rule.” Id. Relatedly, “no vicarious liability exists for the actions of
independent contractors.” Id. Nevertheless, “Illinois has adopted vicarious liability
for ‘[o]ne who entrusts work to an independent contractor, but who retains control of
any part of the work.’” Bokodi v. Foster Wheeler Robbins, 728 N.E.2d 726, 731 (Ill.
2000). Wexford argues that it is entitled to summary judgment because the evidence
shows that it did not control Dr. Burke’s work. (R. 244 at 12.)
Whether Wexford “[r]etained control” over Burke “is a question of fact that may
be decided on summary judgment only if there is insufficient evidence to create a
factual dispute.” Liszkiewicz, 2017 WL 4512836, at *3. “The best indicator of whether
a defendant retained control sufficient to trigger the potential for liability . . . is the
written agreement between the defendant and the contractor.” Foley v. Builtech
Constr., Inc., 160 N.E.3d 78, 86–87 (Ill. App. 2019). In this respect, Wexford points to
26
a provision of Wexford’s contract with Kane County that states: “Wexford will not
exercise control over the manner or means by which these independent contractors
perform their professional medical duties.” (R. 276 at 10–11.) Additionally, the
Wexford guidelines disclaimed any control over Dr. Burke: “[t]hese guidelines do not
replace sound clinical, operational, or administrative judgment, nor are they intended
to strictly apply to all patients.” (Id. at 11.)
Still, “even if the agreement[s] provide[] no evidence the defendant retained
control, evidence of the defendant’s conduct at variance with the agreement may still
demonstrate that control.” Foley, 160 N.E.3d at 87. Flowers points to “Wexford’s
documents admit[ting] that Dr. Burke was part of Wexford.” (R. 262 at 9; Wexford’s
Resp. to Pl.’s SOAF ¶ 26.) There is also evidence that Wexford maintained a “Site
Management Team” at Kane County which provided “hands-on site-level
supervision.” (Wexford’s Resp. to Pl.’s SOAF ¶ 26.) Dr. Burke was a member of this
team. (Id. ¶ 27.) Because this evidence does not show that Wexford had control over
Dr. Burke’s decision-making regarding patient-specific care, it fails to create a
genuine dispute. Flowers’ argument that Dr. Burke was controlled by the Wexford
guidelines also mistakenly ignores Dr. Burke’s testimony that she was not required
to follow the guidelines while providing medical treatment to inmates at the Jail.
(Wexford’s Resp. to Pl.’s SOAF ¶ 31.) The Court accordingly grants judgment in
Wexford’s favor on Count III.
CONCLUSION
For the foregoing reasons, Claude Owikoti’s [231], Victoria Plummer’s [225],
and Jessica Ortegon’s [228] motions for summary judgment are granted. Patricia
27
Burke’s motion [242] is granted with respect to Count I and denied with respect to
Count III. Wexford’s motion [235] is denied with respect to Count I and is granted
with respect to Count III. On or before June 21, 2024, the parties shall submit a joint
status report that includes a list of the remaining claims and defendants, the
anticipated length of trial, and any trial conflicts in the months of October, November,
or December 2024.
Date: June 3, 2024
JEREMY C. DANIEL
United States District Judge
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