Green v. Wexford Health Sources et al

Filing 335

ORDER : Defendants' motion for summary judgment 309 is granted. Defendants' motion to bar plaintiff'sexpert 312 is denied as moot. This case is closed. [See STATEMENT] Signed by the Honorable Frederick J. Kapala on 3/29/2016. Mailed notice (jp, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Antwann Green,
Plaintiff,
v.
Wexford Health Sources, et al.,
Defendants.

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Case No: 12 C 50130

Judge Frederick J. Kapala

ORDER
Defendants’ motion for summary judgment [309] is granted. Defendants’ motion to bar plaintiff’s
expert [312] is denied as moot. This case is closed.
STATEMENT
Antwann Green has sued two prison doctors, Dr. Imhotep Carter and Dr. Bessie Dominguez,
alleging that they were deliberately indifferent to his serious medical needs while he was
incarcerated at the Dixon Correctional Center (“Dixon”).1 In particular, Green alleges that Carter
and Dominguez were deliberately indifferent by failing to diagnose and treat his hypothyroidism in
a timely fashion and, specifically, failing to prescribe a soy-free diet despite his numerous requests.
Defendants now move for summary judgment, arguing that no reasonable jury could conclude that
they were deliberately indifferent to Green’s serious medical condition and, even if arguably a jury
could make such a finding, they are protected by qualified immunity. Defendants have also filed
a Daubert motion seeking to strike Green’s expert witness, a PhD chemist, who has testified that,
in his opinion, it is “well established that the chemical properties of soy can interfere with thyroid
function in people, and that consuming soy can negatively affect the efficacy of medication used to
treat hypothyroidism.” For the reasons which follow, the motion for summary judgment is granted
and the motion to strike is denied as moot.
I. BACKGROUND
A. Hypothyroidism
The thyroid gland is a butterfly shaped organ on the neck that has several functions, one of
which includes controlling the body’s metabolism. The thyroid produces several hormones, notably
for this case thyroid stimulating hormone (TSH), triiodothyroxine (T3), and thyroxine (T4).
Hypothyroidism is a condition where the thyroid gland is not producing those hormones properly,

1

There were additional defendants in this suit at earlier junctures, but they have since been dismissed, leaving
only Carter and Dominguez.

which can affect the body’s metabolism. Common symptoms of hypothyroidism are goiter, fatigue,
hyperpigmentation of the skin, brittle or thinning hair, brittle skin, unexplained weight gain,
constipation, memory problems, muscle aches, and, at advanced stages, slowing of the reflexes of
the muscles and nerves. Hypothyroidism varies in degree from borderline or subclinical cases to
severe cases. Many individuals with mild hypothyroidism are asymptomatic and the condition may
become better or worse with time.2 A diagnosis of hypothyroidism is based on a combination of
physical examination, subjective complaints, and the results of a blood test known as a thyroid
function test (“TFT”), which measures the TSH, T3, and T4 levels in the blood. These levels can
vary rapidly, so multiple tests may be necessary to determine the presence of hypothyroidism. To
raise a concern that a patient has hypothyroidism, the TFT results typically have to indicate that two
of the three values are abnormal. Treatment for low levels of hypothyroidism may include
monitoring and periodic reevaluation, while more serious cases of hypothyroidism can be treated
by synthetic hormones as a replacement for the hormones not produced by the thyroid. According
to the record, that treatment is often lifelong but must be monitored in order to avoid tipping an
individual into hyperthyroidism, which is caused by too much thyroid hormone being present.
B. Green’s Medical Care Prior to the Defendants’ Care
During the relevant time period of this lawsuit, Green was incarcerated at Dixon as a
consequence of a murder conviction. Green has never been diagnosed with a soy allergy and, prior
to incarceration, was not diagnosed with hypothyroidism. After his incarceration, and since 1998,
Green has received a vegan diet in accordance with the tenets of his religion. Green was transferred
to Dixon in 2005, and began at that time to seek medical care from various medical caregivers (none
of whom are at issue in this suit nor is their care) for a panoply of problems: shoulder pain, bone and
muscle aches, numbness, fatigue, rapid heartbeat, brittle hair, constipation, dizzy spells, abdominal
pain, loss of hair, shortness of breath, deformed fingernails, flatulence, and sleep disturbance. At
the end of 2006, Green was given the first of several TFTs, which returned results showing him in
the normal reference range for T3, T4, and TSH.3 In July 2009, Green was again given a TFT, the
2

Throughout the Local Rule 56.1 statements, both parties raise a number of objections, many of which do not
warrant discussion beyond inclusion or non-inclusion of the fact at hand in the background above. Of greater import,
however, are defendants’ objections to this court considering the content of Green’s grievances for the truth of the matter
and for the party admissions (statements allegedly made by Dominguez and Carter) within them. However, Green has
filed a declaration indicating, under oath, that the contents are true and would testify to the same if called to testify on
the matter. That is all that is needed for the court to consider that information at the summary judgment stage. See
Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006). Thus, that repeated objection is overruled.
Defendants also object to this court’s consideration of various print outs from internet-based medical resources (like the
Mayo Clinic’s website and John Hopkins website, etc.) offered by Green in an effort to show various medical facts, like
symptoms and common treatments for hypothyroidism. Green does not claim the print outs meet the learned treatise
exception to the hearsay rule, see Fed. R. Evid. 803(18), but instead cites to Rowe v. Gibson, 798 F.3d 622 (7th Cir.
2015), for the proposition that this court may consider those sources notwithstanding their hearsay nature. The court
is not convinced that Rowe should be read so broadly as to permit this court to accept hearsay evidence without it
meeting one of the exceptions to the hearsay rule, but ultimately does not rule on that issue, because even accepting those
filings the court’s conclusion is not altered.
3

Green testified that sometime in 2007 he received a TFT in which he tested out of range for TSH, but there
is no evidence in the record to support that testimony, Green is not a medical doctor nor does he have other medical
training in order to permit him to make that diagnosis or interpret the results of a TFT himself, and any statement made

2

results of which show a slightly elevated TSH level above the reference range. The record that this
court has, fragmented as it is, appears to lack the results for the T3 and T4 hormones for the July
2009 TFT. However, defendants represent, and Green does not dispute, that both T3 and T4 were
in the normal range for that test.
In August 2009, Green was given another TFT. In that test, he again scored slightly out of
range for TSH, but within the normal range for his T3 and T4 levels. The results were the same
when he was tested again in December 2009. Although Green discusses in his depositions various
medications given to him by providers during this pre-defendant-care period of time—including
some treatment for Green’s complaints of constipation—there are few specifics in Green’s testimony
and no medical records in the record provided to the court to illuminate what that treatment looked
like. In January 2010, Green filed a medical grievance (there is no evidence that he had been seen
by Carter prior to this grievance or that Carter was ever made aware of the grievance) in which he
complained about untreated abdominal and lower back pain and indicated his belief that he had
hypothyroidism. In that grievance, Green requested a soy-free vegan diet, mentioned a lawsuit filed
in the Central District of Illinois against IDOC by prisoners claiming that soy-heavy diets ultimately
caused or exacerbated their hypothyroidism (Harris v. Brown, 07 CV 3225 (C.D. Ill.)), and a
colonoscopy. In February 2010, the grievance officer denied the grievance, stating that healthcare
had indicated that there was nothing to suggest the diet was the problem and that he had come back
negative for colon cancer. He was also told to follow up with health care if symptoms reoccurred.
C. Green’s Care from Carter
At the outset of his deposition, Carter testified that he did not recall Green or the care he
provided at all, and was relying on the medical records and treatment notes for his testimony.
Nevertheless, Carter was employed at Dixon as the medical director from January 4, 2010 to July
24, 2011 by Wexford Health Sources, Inc., the vendor which provides medical services at Dixon.
Green first saw Carter on February 25, 2010 based on complaints of a metal taste in his mouth,
constipation, and abdominal pain. Carter noted, after a physical examination, that Green’s abdomen
was soft, demonstrated positive bowel sounds, was non-tender, and did not demonstrate rebounding
or masses. Based on Green’s complaints of constipation and abdominal pain, Carter ordered
plaintiff to undergo a stool guaiac test and scheduled a collegial review (where Wexford physicians
and staff discuss the patient’s medical condition and care necessary to address the condition and
which is also necessary to schedule off-site procedures) to obtain a right upper-quadrant abdominal
ultrasound for Green. On March 5, 2010, Carter discussed Green’s condition at the collegial review

to him by a medical professional (who, in 2007, could not have been either defendant) would be hearsay and Green has
not pointed to any exception to the hearsay rule which would make it admissible. See Fed. R. Evid. 802. The most
obvious exception, Rule 803(4)’s exception for statements made for medical diagnosis or treatment, does not apply. See
Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir. 1996) (“The Rule excepts statements made by a
person seeking medical attention to the person providing that attention. Rule 803(4) does not purport to except, nor can
it reasonably be interpreted as excepting, statements by the person providing the medical attention to the patient.”); see
also Martin v. Nicklow, 499 F. App’x 569, 573 (7th Cir. 2013) (“The district court mistakenly believed that the note in
the medical record was made ‘for purposes of medical diagnosis or treatment’ and so qualified as excepted hearsay under
Federal Rule of Evidence 803(4). That exception applies only to statements made by the patient.”). Moreover, there
is nothing in the record to suggest that any such medical personnel was functioning as an agent of either Carter or
Dominguez when he or she made this theoretical statement. See Fed. R. Evid. 801(d)(2).

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and noted that the stool guaiac test had returned negative. The collegial review denied Carter’s
request for an ultrasound and, instead, decided to monitor Green’s condition on site and recommend
him for collegial review in the future if needed.
Sometime in early 2010, Green received literature concerning hypothyroidism and informed
Carter that he believed he had hypothyroidism. Green’s testimony is unclear as to when that
occurred and the first time hypothyroidism is mentioned in his medical records is in June 2010, see
infra, when Carter ordered another series of TFTs.
Regardless, on April 1, 2010, Carter again saw Green for complaints of abdominal pains and
trouble with bowel movements. A physical examination again showed Green’s abdomen to be
normal and Carter informed Green that he was likely constipated. Carter ordered Green to undergo
a number of laboratory tests to investigate Green’s condition, including a KUB (kidney, uterus, and
bladder) x-ray of his abdomen, a comprehensive metabolic panel, and a urinalysis test. Carter also
prescribed Green fiber tablets in an effort to relieve his constipation. On April 6, 2010, Green
underwent the KUB abdominal x-ray, which showed only that Green had mild constipation.
On May 10, 2010, despite the fiber tablets, Carter saw Green for complaints of abdominal
pains and constipation. Carter performed a physical exam, which was normal, and discontinued the
apparently ineffective fiber tablets. Instead, he prescribed Lactulose and Colace laxatives in an
attempt to alleviate Green’s constipation. On May 30, 2010, Green filed a grievance concerning his
medical care, although again there is no evidence in the record that Carter was made aware of that
grievance. In it, Green claims that he had been complaining for three years of intestinal problems,
pain in his stomach and groin region, “brain fog,” fatigue, irregular or rapid heart beats, painful
fingernails, spots on his skin, a bulge in the lower right section of his stomach, and constipation
lasting as long as five days. Green also complained that Carter had prescribed him the same
medication as previous prison doctors, notwithstanding the fact that he informed Carter that those
medications did not alleviate his symptoms. Finally, Green diagnosed his problem as
hypothyroidism. Thus, he demanded treatment for hypothyroidism, to be treated for an intestinal
blockage, and to receive a soy-free vegan diet, which he claimed was a cause of his hypothyroidism.
On June 4, 2010, Carter saw and examined Green to further evaluate his abdominal pains.
At that time, Green stated that he wanted to join the Harris lawsuit based on the soy in his diet. On
review of Green’s medical history, Carter noted that Green had been on three different stool
medications, but was now complaining that his stools “look[ed] funny.” Carter performed a physical
examination of Green’s abdomen, which was normal. Carter assessed that Green had developed a
psychosomatic gastrointestinal illness. Nevertheless, Carter ordered Green to undergo another round
of TFTs. Green also reported at that visit that he had a family history of colon cancer, was
concerned that he might have colon cancer, and requested testing to rule out colon cancer. Carter
ordered Green to undergo carcinoembryonic antigen (CEA) tests to investigate Green’s concerns
about colon cancer.
That same day, Green filed another grievance concerning Carter’s care (again, though, no
evidence in the record suggests Carter saw that grievance). In the grievance, he stated that Carter
called him an “ambulance chaser,” told him that there is no proof that soy causes thyroid problems,
and otherwise acted unprofessionally towards Green. Because of that, Green requested that Carter
be disciplined, that Green be cared for by a different doctor, and that Green receive a CEA test and
4

a TFT (apparently notwithstanding the fact that Carter had already ordered those tests).
Green underwent the TFTs on June 8, 2010 and June 22, 2010, both of which returned
normal and within laboratory reference ranges for all three hormones. The CEA test was also
negative. On June 15, 2010, the grievance officer denied Green’s May 30, 2010 and June 4, 2010
grievances because the first thyroid test did not suggest hypothyroidism and recommended that
Green drink more water to ease his constipation.
Carter saw Green next on July 14, 2010, this time complaining of pain in his side. On that
date, Carter followed up on his prior request to obtain an abdominal ultrasound for Green. Carter
wanted to obtain an ultrasound of Green’s gallbladder to further investigate Green’s reported
abdominal pain, bloating, and weight loss. Carter appealed the denial of his previous request via
a collegial review to obtain an abdominal ultrasound for Green. Based on his appeal, Wexford
approved the gallbladder ultrasound for Green, which he underwent on September 1, 2010. The
abdominal ultrasound was normal.
On September 22, 2010, Carter saw Green due to complaints of constipation and bloating.
Carter explained the ultrasound results to Green, performed a physical examination of Green’s
abdomen (which was normal), came to the conclusion that Green suffered from chronic constipation,
and adjusted Green’s medication. In particular, Carter discontinued Green’s fiber tablets (it is not
clear on the record when Green began a regimen of fiber tablets again after Carter’s previous
discontinuation of that treatment) and Colace prescription, while increasing Green’s Lactulose
prescription. On October 6, 2010, Carter again saw Green for complaints of constipation and also
a complaint of a lump in the lower left side of Green’s rib cage. Carter examined Green’s abdomen
and found it normal, noted Green’s continued weight gain and healthy appearance, and again
concluded that Green suffered from chronic constipation. Moreover, according to the medical
records, Green informed Carter that his bowels were moving better with the Lactulose syrup, and
Carter did not change Green’s treatment.
That same day, Green grieved Carter’s care. In that grievance, Green claims that he told
Carter that the medication was not working, that he was still experiencing constipation, and that he
was now experiencing a lump under his rib cage. Green also wrote that he requested a colonoscopy,
but that Carter told him there was no need for a biopsy, except “maybe a mental biopsy.”
Additionally, Carter told Green that he was just going to have to live with the pain. According to
Green, Carter continued to prescribe the same medication notwithstanding its previous
ineffectiveness.
According to the medical records, on November 30, 2010, Green saw Carter for complaints
of abdominal pains, constipation, and that the Lactulose was no longer working. Carter noted that
a physical exam of Green’s abdomen was normal, but also noted Green’s previous family history
of colon cancer. Carter concluded that Green continued to suffer from chronic constipation
notwithstanding the maximum permissible dose of Lactulose. As such, Carter requested a collegial
review of Green’s case in order to obtain outside consultation at University of Illinois Chicago’s
(UIC) gastrointestinal clinic.
On December 3, 2010, Carter completed a medical special services referral and report in
order to obtain an outside consultation for Green at the UIC gastrointestinal clinic. On December
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7, 2010, Carter discussed Green’s case in a collegial review with another Wexford physician. At
that time, that physician and Carter approved Green for an outside gastrointestinal consultation at
UIC. On December 8, 2010, Wexford issued final approval of Carter’s request for Green to undergo
an outside gastrointestinal evaluation at UIC. On March 9, 2011, Green was examined by Dr.
Muhammad Nauman Jhandier at UIC. Green reported to Dr. Jhandier that he had not moved his
bowels in five-to-six days. Dr. Jhandier planned to perform a colonoscopy on Green. Dr. Jhandier
also ordered fiber and Miralax for Green.
On March 11, 2011, Carter saw Green during a medical writ follow-up for his visit to UIC.
At that time, Carter reviewed Dr. Jhandier’s report and recommendations and noted that Dr. Jhandier
recommended a stool regimen for Green and a colonoscopy. However, Green was already on a stool
regimen as recommended by Dr. Jhandier. Carter examined Green’s abdomen at that time, which
was normal (i.e. soft, non-tender, and demonstrated positive bowel sounds). Based on Dr. Jhandier’s
recommendation and Green’s medical history, Carter planned a collegial review for Green to obtain
a colonoscopy. After Carter presented his request, Green was approved for a colonoscopy on March
15, 2011. On that same day, Carter saw Green and informed him of the results of his most recent
laboratory tests (all of which were normal) and that he had been approved for the colonoscopy.
On March 25, 2011, Green underwent the colonoscopy at UIC. The doctor performing the
procedure determined that Green’s rectum, sigmoid colon, ascending colon, cecum and ileocecal
valve were normal. Four polyps, each three to five millimeters, were found in Green’s descending
and traverse colon, which were removed during the colonoscopy. Green was thereafter discharged
from UIC and ordered to return for a follow-up visit (the record is unclear whether this follow-up
visit at UIC occurred).
On March 30, 2011, Carter saw Green during a medical writ follow-up after his colonoscopy
at UIC. At that time, Carter reviewed the results of Green’s colonoscopy results and
recommendations, and noted that there was no identified reason for Green’s bowel abnormalities.
Carter examined Green at that time and noted that he appeared healthy. Carter also examined
Green’s abdomen, and noted that it was soft, non-tender, and demonstrated positive bowel sounds.
Carter’s assessment for Green was chronic constipation and that he recently had colon polyps
removed. As such, Carter continued Green’s current management plan, including his laxatives.
Carter ordered Green to be re-evaluated in thirty days in order to evaluate the effectiveness of
Green’s bowel regimen. Green did not follow-up in thirty days with Carter, indeed Green never
returned, or sought to return, to Carter after the March 30, 2011 visit. Carter ceased working at
Dixon in July 2011. It is undisputed that, during the same period Carter was treating Green for
constipation, he also treated him for hypertension, treatment about which Green does not complain.
D. Green’s Care From Dominguez
It is unclear from the record when Dominguez first provided care to Green, but his complaint
focuses on the time after he ceased receiving care from Carter. On February 9, 2011, Dominguez
saw Green for complaints of fatigue and joint pain. At that appointment, Dominguez reviewed at
least the most recent of Green’s TFT results (which came back normal for all three hormones). She
ordered additional tests to determine the source and severity of Green’s joint pain, including an
erthrocyte sedimentation rate (ESR) test, which is used to determine the amount of inflammation in
a patient’s body, and a antinuclear antibodies (ANA) test, which is used to investigate whether a
6

patient has an autoimmune disorder. Dominguez also prescribed anti-inflammatory medication,
including Naprosyn, and instructed Green, who is according to the record a body builder with “six
pack abs,”4 to be gentler in his exercise routines. She counseled Green that excessive exercise can
cause damage to cartilage and ruin the body’s joints. In her deposition, Dominguez admitted that
she did not review all of Green’s medical records, and that if she had seen Green’s 2009 TFT results,
she would have ordered a TFT test for Green on February 9, 2011.
On July 14, 2011, Dominguez saw Green for his complaints of chronic constipation, muscle
aches, and his request for Metamucil. Dominguez’s assessment of Green’s condition at that time
included chronic constipation, body/muscles aches and pain (mild arthritis), and thoracic and lumbar
muscle pain. Dominguez ordered Metamucil, a fiber supplement, for Green to try and alleviate his
constipation. Dominguez also ordered Green to try walking exercises to alleviate his constipation.
Finally, Dominguez ordered Naprosyn for Green to treat his muscle aches and pains.
On May 8, 2012, Dominguez saw Green for a complaint of gastrointestinal discomfort in the
right-upper quadrant of his abdomen, as well as a complaint that he was always tired. Green also
stated at that time that his bowel movements were generally alright. Dominguez examined Green
at that time and determined that he had right-upper quadrant abdominal pain, but no hepatomegaly
nor back or costal vertebral tenderness. Green also stated that he had been eating his meals with no
problems, that he did not have nausea or vomiting, did not report weight loss, and he had good
bowel sounds on exam. Dominguez then reviewed at least some of Green’s medical records,
including his x-rays, UIC consultation records, and his colonoscopy test results, and noted that there
was no definitive reason found for Green’s gastrointestinal complaints. Nevertheless, Dominguez
ordered various laboratory tests, including a complete blood count and a comprehensive metabolic
panel and instructed Green to return for further evaluation after those tests.
On May 21, 2012, Dominguez saw Green for that follow-up examination to review and
discuss his laboratory results. At that time, Dominguez examined Green, who stated that he had
abdominal pain in the right-upper quadrant of his abdomen and that his prior thyroid tests could
demonstrate a cause of his fatigue. Dominguez performed a physical exam, which showed Green’s
abdomen was soft, without right upper quadrant tenderness, and demonstrated good bowel sounds.
Dominguez also reviewed Green’s most recent laboratory results—a complete metabolic panel, a
complete blood count, and a urinalysis—which were all normal. Given Green’s statement
concerning his thyroid, Dominguez noted in her chart that Green may have a thyroid problem and
ordered him to undergo another TFT and to return in two weeks for a follow up on his TFT results.
The result of that TFT, given on May 23, 2012, showed that Green’s TSH was, like his 2009 exams
and unlike his 2010 exams, slightly elevated, but that his T3 and T4 levels were within normal
range. At some point, although the record is not clear on when, Green allegedly told Dominguez
about his concerns about his thyroid and soy’s effect thereon, and Dominguez responded “Don’t
even try it, we’ve been through this already.”
On June 4, 2012, Dominguez saw Green for his follow-up examination. Dominguez

4

The undisputed fact that Green has a body builder’s physique and “six pack abs” is difficult to square with his
testimony concerning his chronic fatigue. Nevertheless, since this case is currently at summary judgment, the court will
accept both as true.

7

reviewed Green’s TFT results and noted that Green’s TSH levels were elevated, though his T3 and
T4 levels were still within normal ranges. However, Dominguez was concerned that Green was
abnormally sensitive to fluctuations in his TSH levels because of his chronic problems and other
symptoms consistent with hypothyroidism. As such, Dominguez diagnosed Green with mild
hypothyroidism and prescribed Synthroid for him, which is used to regulate the body’s TSH levels.
Dominguez ordered Green not take the Synthroid within thirty minutes of eating. Dominguez
further ordered Green to undergo a repeat TFT in one month to determine whether the Synthroid was
working. The parties agree that Green was never at risk of harm by receiving Synthroid, since it was
a low dose and his TSH levels were being monitored. The next TFT occurred on July 3, 2012,
which showed a decrease in TSH from the previous test, and all three hormones were reported as
being in normal range.
On July 12, 2012, Dominguez saw Green for a follow up on the July 3, 2012 TFT.
Dominguez advised Green that the results were normal and that his TSH levels were within range.
Green testified that, following treatment with Synthroid, his condition improved. At that time,
Green requested Metamucil for his constipation, which Dominguez ordered as a daily treatment
along with Green’s Synthroid. On November 16, 2012, Dominguez saw Green for a routine
physical, where she noted his hypothyroidism and continued his Metamucil and Synthroid
medications. On November 27, 2012, Green received a follow-up TFT, which returned all three
hormone levels as normal. In December 2012, Dominguez saw Green at the general medical clinic
and noted his controlled hypothyroidism and reviewed his most recent TFT results. Dominguez
ordered Green to continue taking his Synthroid. Green testified that, after receiving his prescription
for Synthroid and voluntarily avoiding the soy-based products in his food by spending a significant
amount of money at the prison commissary to supplement his diet, he has seen an improvement in
his condition, however his symptoms have periodically continued.
E. Procedural Background
In April 2012, Green filed the instant suit claiming deliberate indifference to a serious
medical need. Specifically, he alleges that Carter and Dominguez were deliberately indifferent for
failing to diagnose and treat his hypothyroidism and for failing to prescribe him a soy-free diet.
Carter and Dominguez, based on the above-stated record, have moved for summary judgment,
arguing (1) there is insufficient evidence for a reasonable jury to conclude they were deliberately
indifferent to a serious medical need and (2) even if there were, they are entitled to qualified
immunity. Defendants have also moved to bar Green’s expert witness in a separate motion.
Because the court ultimately concludes that defendants are entitled to summary judgment even
assuming the admissibility of the expert’s testimony, the court need not address the motion to bar
and it is denied as moot.
II. ANALYSIS
Summary judgment is appropriate “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).
In evaluating such a motion, the court’s role is not to weigh the evidence and determine the truth of
the matter, but to determine whether there is a genuine issue for trial. Preddie v. Bartholomew
Consol. Sch. Corp., 799 F.3d 806, 818-19 (7th Cir. 2015). The court must draw all reasonable
inferences in the light most favorable to the party opposing the motion. See id. at 812-13. “If a
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party moving for summary judgment has properly supported his motion, the burden shifts to the
nonmoving party to come forward with specific facts showing that there is a genuine issue for trial.”
Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 951 (7th Cir. 2013) (emphasis and quotation marks
omitted).
“[D]eliberate indifference to [the] serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain” such that a prisoner may bring a cause of action against
a prison official. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (quotation marks omitted). The
Seventh Circuit has distilled the language from Estelle into a two-part test, requiring a prisoner to
establish (1) an objective component, a serious medical condition,5 and (2) a subjective component,
an official’s deliberate indifference to that condition, to make out a claim for deliberate indifference
under § 1983. See Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012). To satisfy the subjective
element of a deliberate indifference claim against a medical provider, a plaintiff must prove that
“[t]he official [had] subjective knowledge of the risk to the inmate’s health, and the official . . .
disregard[ed] that risk.” Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). To survive summary
judgment, plaintiff must have evidence sufficient to create a genuine issue of material fact that
defendants’ medical decisions were “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.” King v. Kramer, 680 F.3d 1013, 1018-19 (7th Cir. 2012) (quotation
marks omitted). However, “[i]n evaluating the evidence,” this court “must remain sensitive to the
line between malpractice and treatment that is so far out of bounds that it was blatantly inappropriate
or not even based on medical judgment.” Id. at 1019. Indeed, even gross negligence is insufficient
to meet the necessary standard. See id. at 1018. Nevertheless, plaintiff is not required to show
“intentional harm” or “that he was literally ignored.” Id. at 1018-19 (quotation marks omitted).
A. Carter
Carter first argues that no reasonable jury could conclude that he subjectively inflicted cruel
and unusual punishment through deliberate indifference to Green’s serious medical needs. Green
argues, in response, that the following acts could be relied upon by a reasonable jury to find that
Carter was subjectively indifferent: (1) the delay in diagnosing and treating Green’s hypothyroidism
despite his symptoms remaining unchanged throughout his treatment, (2) Carter prescribed the same
medications as had been previously prescribed and proven ineffective, (3) Carter called Green an
“ambulance chaser” and diagnosed him with a psychosomatic disorder, and (4) Carter refused to
prescribe a soy-free diet despite the fact that Green’s expert has testified that it is “well established
that the chemical properties of soy can interfere with thyroid function in people, and that consuming
soy can negatively affect the efficacy of medication used to treat hypothyroidism” and Green
showed Carter some literature to the same effect during his treatment.6

5

Defendants make an argument concerning the objective component of the deliberate indifference test, however,
because the court finds defendants’ arguments concerning the subjective component and qualified immunity persuasive,
it need not address that argument.
6

Green’s arguments against both Carter and Dominguez are difficult to discern, as he combines the actions of
each defendant and argues as though all of the acts were committed by the same individual. However, he provides no
authority, and the court has found none, for imputing the acts of Carter to Dominguez or vice versa, and thus the court

9

As to the first, the record does not bear out the existence of any delay in treatment, but,
rather, a delay in correctly diagnosing Green. But there is not even sufficient evidence on the record
to support a finding of negligence in Carter’s failing to diagnose Green with hypothyroidism, much
less deliberate indifference. In the thirteen months Carter cared for Green, he saw Green eleven
times for various complaints of abdominal pain or constipation. At all eleven of those appointments,
Carter performed a physical examination of Green’s abdomen. Additionally, he sought two
ultrasounds (ultimately only getting approval for one), a KUB x-ray, a comprehensive metabolic
panel, a urinalysis test, two TFTs (and reviewed several others), a CEA test, a consult from a
specialist at UIC, and a colonoscopy. Green suspected that he had a thyroid problem, but an inmate
is not permitted to dictate the course of his treatment or diagnosis and Carter is not required to
replace his medical judgment with that of his patient’s. See Forbes v. Edgar, 112 F.3d 262, 267 (7th
Cir. 1997) (“Under the Eighth Amendment, [plaintiff] is not entitled to demand specific care. [He]
is not entitled to the best care possible. [He] is entitled to reasonable measures to meet a substantial
risk of serious harm to [him]. The defendants have taken those measures.”). That Green may have
been right7 about his thyroid condition does not alter the analysis: he presented with some symptoms
consistent with hypothyroidism (constipation, weight fluctuation, etc.), but also lacked several of
the most common (like goiter). Indeed, when Carter tested Green for hypothyroidism by the way
of two TFTs, both came back within normal range for all three hormones. Green argues that it may
have been better practice to space those two TFTs out further based on Carter’s testimony, or that
Carter should have performed more TFTs based on Green’s 2009 TFTs which showed a somewhat
elevated TSH, but he is not entitled to demand the best care and Green points to nothing on the
record to show that Carter’s decision to seek out other diagnostic testing after the two normal TFTs
is so far afield from normal medical practice that no competent doctor would have followed the same
path. See Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (“Making that showing is not easy: A
medical professional is entitled to deference in treatment decisions unless no minimally competent
professional would have so responded under those circumstances.” (quotation marks omitted)).
For similar reasons, Green’s argument that a jury could conclude Carter was deliberately
indifferent for failing to start Green on Synthroid earlier fails. Synthroid is designed to treat
hypothyroidism, and Carter had very good reasons (even if potentially incorrect ones) to conclude
that Green did not have hypothyroidism. Moreover, in the materials offered by Green from
Synthroid’s manufacturer, it specifically indicates that Synthroid is contraindicated for patients with
abnormal TSH, but normal T3 and T4 levels, which is the only way Green has ever tested except
in 2006 and again in 2010 when he tested in the normal range for all three hormones. Although the
Synthroid ultimately provided Green relief from some of his symptoms and helped bring his TSH
level back to normal, Carter can hardly be faulted for failing to give Green a medicine which the
manufacturer indicates is contraindicated for Green (even ignoring the fact that Green tested in range
in the 2006 and both of the 2010 TFTs).

will analyze each defendant separately to determine if either can be held liable for deliberate indifference.
7

The fact that Green’s symptoms have subsided, but not fully abated, does not necessarily suggest his problem
is something other than hypothyroidism. According to the record, an individual under treatment for hypothyroidism can
continue to exhibit symptoms even while undergoing treatment.

10

Green next argues that a jury could conclude Carter was deliberately indifferent by
prescribing the same care other doctors in the past had (specifically, fiber tablets and laxatives),
which had been ineffective at treating his conditions previously. Indeed, a physician who continues
the same treatment plan repeatedly despite having been told that the plan was ineffective runs the
risk of being liable for deliberate indifference. See Berry v. Peterman, 604 F.3d 435, 441 (7th Cir.
2010). However, there is no support in the record for Green’s statement that Carter followed the
same treatment plan as previous doctors. Although Green stated in his grievances that he had been
given the same medications before and had told Carter as much, there is no indication that the
medications had been given in the same dosages, on the same intake schedule, or in the same
combination to treat Green’s ailments. Indeed, the record, as set out above, shows that Carter
consistently modified Green’s medications throughout the relatively short time he treated Green in
an effort to find some combination that worked (for example, Carter started off with fiber tablets,
then changed from those to Lactulose and Colace once Green complained the fiber was not working,
and then increased the Lactulose prescription and canceled the Colace when Green again
complained) while also running diagnostic tests to attempt to discover if there was an underlying
problem causing Green’s abdominal discomfort and constipation. In short, no rational jury could
rely on this argument, as supported by the record currently before the court, to determine that Carter
was deliberately indifferent.
Next, Green argues that a jury could rely on the fact that Carter called Green an “ambulance
chaser” and diagnosed him with a psychosomatic disorder (which Green equates to accusing him
of faking) to find that he was deliberately indifferent. However, the fact that a prison physician
suspects or even accuses an inmate of lying or exaggerating about his symptoms is not evidence of
deliberate indifference where, as here, the medical provider continues to treat the inmate. See
Coleman v. Ghosh, 609 F. App’x 871, 872-73 (7th Cir. 2015). This stands in contrast to cases like
Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002), where the Seventh Circuit held that a
good-faith belief that an inmate is lying about or exaggerating his pain is not a sufficient defense
against a claim of deliberate indifference at the summary judgment stage8 where medical staff
withheld prescribed pain medication because, here, Carter did not cease Green’s treatment, indeed
Carter ordered additional diagnostic testing. This case is controlled by Ray v. Wexford Health
Sources, Inc., where the plaintiff, Ray, asserted that his doctor, Shah, was deliberately indifferent
where Shah failed to order an MRI to discover the basis of Ray’s shoulder pain, instead he
diagnosed him with arthritis and treated accordingly. 706 F.3d 864, 866 (7th Cir. 2013). In that
case, the Seventh Circuit held that an alleged statement from Shah, that he “didn’t care how much
pain [plaintiff] was in or how bad [his] shoulder hurt, he wasn’t sending [plaintiff] for an MRI . . .
so [plaintiff] was going to have to live with it,” was, although potentially callous, not sufficient to
show deliberate indifference in light of the history of arthritis treatment. Id. Similarly, here, even
if Carter made a callous statement about how he did not believe Green or that Green was an
“ambulance chaser” (or needed a “mental biopsy,” although Green does not explicitly rely on this
testimony in his argument), he nevertheless provided treatment for Green’s complained-of symptoms
in the form of various constipation medications, which he altered as previous attempts proved

8

The Court left open that a good-faith belief an inmate is lying could be a defense presented to a jury even in
circumstances where treatment was denied. Walker, 293 F.3d at 1040.

11

ineffective, and sought diagnostic testing by way of a host of different tests. See id. (“Ray calls this
statement callous, and perhaps it was . . . [but] [t]he fact remains that, far from ignoring Ray’s pain,
Shah treated him for arthritis.”).
That leaves only Green’s argument that Carter was deliberately indifferent for refusing to
prescribe a soy-free diet. As support for his argument, he relies on the report from his expert
chemist, who testified in pertinent part that it is “well established that the chemical properties of soy
can interfere with thyroid function in people, and that consuming soy can negatively affect the
efficacy of medication used to treat hypothyroidism.” The expert’s testimony, however, only
establishes an effect on the thyroid gland from soy, it does not establish the magnitude of the effect
or whether whatever that magnitude is has permeated the medical community sufficiently that failure
to prescribe a soy-free diet is something no minimally competent doctor would decline to do.
Indeed, the record belies any contention that this scientific research has made the leap to medical
treatment protocols. None of the various medical documents offered by Green in support of his case
state that a soy-free diet is a required treatment protocol with those with slightly out-of-the-normalrange-TSH values.9 Also, it is undisputed that the FDA has labeled soy beans generally recognized
as safe for consumption in any quantity and even permitted labeling that soy protein is a good choice
for cardiovascular health. See 21 C.F.R. § 101.82. Indeed, Green’s own expert testified in his
deposition that the research concerning soy’s effect on the thyroid is still a “murky area” with
“eminent scientists, some who say [soy] is a problem and some who say [soy] is not. . . . And so
there is a range of scientific opinion.” (Fitzpatrick Dep. 89.) And although he ultimately testified
that he believed, based on his research, that soy does have an impact on the functioning of the
thyroid gland, he admitted that “the jury is [still] out” on the question and that the research in the
area is “unsettled.” (Id. at 90-91.) In light of that record, the court discerns insufficient evidence to
support a jury conclusion that every minimally competent doctor would have prescribed a soy-free
diet based on slightly elevated TSH levels and that failure to do so constitutes deliberate indifference
to a serious medical need. Holloway v. Del. Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012)
(“[A] prisoner is not entitled to receive unqualified access to healthcare. Instead, prisoners are
entitled only to adequate medical care. There is not one proper way to practice medicine in prison,
but rather a range of acceptable courses based on prevailing standards in the field.” (citations and
quotation marks omitted)).

9

The Mayo Clinic Family Health Book excerpt only notes that an individual who is on an artificial thyroid
hormone treatment should talk to their doctor if they eat “large amounts of soy products,” but does not even then indicate
that part of every competent treatment protocol must be removing that soy ingestion. And, of course, when treating with
Carter, Green was not on that medication for soy to potentially interfere with, in any event. Similarly, the
MayoClinic.com printout offered by Green only, again, notes that an individual who ingests large amounts of soy who
is on artificial thyroid hormones should consult with their doctor. Neither the John Hopkins printouts nor the
EndocrineWeb printouts mention soy at all as a factor in hypothyroidism diagnosis or treatment. Only the About.com
printout specifically mentions soy “overconsumption” as a factor in developing a thyroid problem, and even then fails
to define what “overconsumption” means. Nevertheless, Green’s offerings certainly do not establish that a soy-free diet
is a required treatment protocol for anyone with a history of mildly elevated TSH levels.

12

Moreover, Carter is entitled to qualified immunity on this issue.10 Qualified immunity
shields government officials “from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would have
known.” Volkman v. Ryker, 736 F.3d 1084, 1089 (7th Cir. 2013) (quotation marks omitted). “The
qualified immunity analysis therefore traditionally involves a two-part inquiry.” Id. at 1090. “The
first question is whether the defendants’ conduct violated a constitutional right.” Id. “The second
question is whether that particular constitutional right was clearly established at the time of the
alleged violation.” Id. (quotation marks omitted). The burden to make that showing rests with
Green, and he must “show that the contours of the right he alleges was violated are sufficiently clear
that a reasonable official would understand that what he is doing violates that right.” Id. (quotation
marks omitted). “[F]or qualified immunity to be surrendered, preexisting law must dictate, that is,
truly compel the conclusion for every like-situated, reasonable government agent that what he is
doing violates federal law in the circumstances.” Id. (alterations and quotation marks omitted). In
other words, courts “do not require a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.” Mullenix v. Luna, 577 U.S. ___, 136 S. Ct.
305, 308 (2015) (quotation marks omitted). “Put simply, qualified immunity protects all but the
plainly incompetent or those who knowingly violate the law.” Id. (quotation marks omitted). Here,
Green points to no case or cases which would have put Carter on notice that his
treatment—including ordering a battery of diagnostic tests and providing medication, albeit
ultimately ineffective medication, targeted at Green’s complaints—violated the Eighth
Amendment’s prohibition on cruel and unusual punishment. Instead, he defines the issue broadly
and states that the deliberate indifference standard is well established, and while that may be so, the
Seventh Circuit has repeatedly criticized attempts to define the right which must be clearly
established in such broad terms. See Volkman, 736 F.3d at 1090 (“[T]he Supreme Court has
repeatedly told courts not to define clearly established law at a high level of generality and the
Seventh Circuit has long held that the test for immunity should be whether the law was clear in
relation to the specific facts confronting the public official when he acted.”) (alteration, citation, and
quotation marks omitted)). There is no suggestion in the case law cited by Green, or found in this
court’s own research, that a prison doctor presented with a patient complaining principally of
abdominal pain and constipation—and who has an occasional history of mildly elevated TSH
levels—violates the Constitution by failing to order more TFTs or by failing to prescribe Synthroid
and a soy-free diet.
Based on the foregoing, there is insufficient evidence on the record for a reasonable jury to
conclude that Carter was deliberately indifferent to Green’s hypothyroidism, and none of Green’s
arguments to the contrary, individually or as a group, change that analysis. Even if there were,
Carter is entitled to qualified immunity. Accordingly, the motion for summary judgment is granted
as to Carter.

10

Green does not argue that Carter or Dominguez are not entitled to assert qualified immunity based on his
employment by Wexford rather than IDOC. See Filarsky v. Delia, 566 U.S. ___, 132 S. Ct. 1657, 1665 (2012) (holding
that qualified immunity typically extends to all employees of a state government, including those hired on a part-time
or contractual basis).

13

B. Dominguez
Green’s arguments concerning Dominguez’s care are similar to those made against Carter,
specifically he argues that a reasonable jury could conclude she was deliberately indifferent due to
(1) the delay in diagnosing and treating Green for hypothyroidism, particularly in light of his history
of symptoms and her admitted failure to review all of Green’s medical records; (2) her prescribing
the same medications as previous doctors had attempted despite being told that they did not work;
(3) her refusal to prescribe a soy-free diet, even after placing Green on Synthroid which is known
to be affected by a soy-heavy diet; and (4) her telling Green, at some point in her treatment when
he raised soy and thyroid concerns, “Don’t even try it, we’ve been through this already.”
As to the first, Dominguez initially saw Green, at least for the relevant purposes of this
lawsuit, on February 9, 2011 for complaints of joint pain (Green does not argue that the treatment
provided for those complaints was deliberately indifferent or even inadequate). Dominguez
reviewed some of his medical records, but admitted in her deposition that she did not know that
Green had two binders of medical records and thus may have missed whatever was in the other
binder. Based on her testimony, a reasonable jury could conclude that she did not review the 2009
TFTs, which showed slightly elevated TSH levels, as she testified that had she seen those TFTs she
would have ordered a TFT for Green at that time. But that admission, which is the basis for the
majority of Green’s argument as to this first point, does not move the ball towards deliberate
indifference. Green did not present in February with complaints tied to his hypothyroidism, but with
complaints of arthritis pain. So the fact that Dominguez did not sua sponte realize that Green may
have some undiagnosed thyroid problems, about which he was not complaining, can hardly be
considered deliberate indifference when she treated him fully for the issues about which he appeared
before her. He did not see Dominguez for constipation until July 2011, at which time he requested
Metamucil. She gave him that fiber supplement, ordered him to attempt walking exercise to relieve
his constipation, and provided him with pain medication. After that, Green did not return with
constipation or abdominal complaints until nearly a year later, in May 2012. Certainly she had no
reason to assume that treatment was ineffective where Green did not return to see her for those
issues for nearly a year. In May 2012, when he did return, she ordered two sets of tests, including
eventually the two TFTs which led her to conclude, in June 2012, that he had mild hypothyroidism
and prescribe Synthroid. At most, her failure to review his full medical records and diagnose, or at
least test Green for, hypothyroidism in July 2011 was negligence, there is nothing in the record
which would permit a jury to conclude deliberate indifference in the treatment history before the
court. See King, 680 F.3d at 1018 (not even gross negligence is sufficient to show deliberate
indifference).
Next, Green faults Dominguez for prescribing fiber supplements, despite the fact that the
treatment had been ineffective before. However, the undisputed record discloses that when
Dominguez prescribed that treatment for Green, he requested that treatment. Moreover, it was
prescribed in combination with walking exercises in an attempt to alleviate Green’s constipation,
which there is no record of having been tried previously. And, again, he did not return with similar
complaints for nearly a year after that treatment regimen had been put in place, from which
Dominguez could conclude the regimen was working. Nevertheless, prescribing a constipation
treatment requested by a patient is not evidence of deliberate indifference.

14

Green’s third argument centers around Dominguez’s refusal to prescribe a soy-free diet.11
To the extent Green is arguing that Dominguez’s refusal before she diagnosed Green with
hypothyroidism and started him on Synthroid is evidence of deliberate indifference, it fails for the
same reasons as it does against Carter supra. There is more to the argument against Dominguez,
though, as the record discloses that Synthroid’s manufacturer has cautioned that “Soybean flour
(infant formula) . . . may bind and decrease the absorption of [Synthroid] from the GI tract.”12 First,
the record does not disclose how much soy flour specifically Green would have been eating and the
manufacturer’s warnings appear geared towards infant formula in particular, and there is no
suggestion in the record concerning how much infant formula he may have consumed. Second,
Dominguez testified that she instructed Green to take Synthroid well before eating, as absorption
of the drug is improved on an empty stomach (another point made by the manufacturer), so that the
drug may have passed the GI tract before any soy flour could have entered his system. Third, and
most critically, there is nothing in this case to suggest that Green’s consumption of soy interfered
with his absorption of Synthroid. The Synthroid was sufficiently absorbed, irregardless of Green’s
diet, to bring his TSH levels into the normal range. Green eventually ceased eating soy of his own
volition, but there is no indication in the record that he began that practice prior to the Synthroid
getting his TSH levels under control. Thus, a reasonable jury could not conclude that Dominguez’s
refusal to provide Green a soy-free diet was even negligent, much less so far afield from basic
competent medical services as to be deliberately indifferent. See Pyles, 771 F.3d at 409.
That leaves only Green’s argument that Dominguez’s statement “Don’t even try it, we’ve
been through this already” when Green raised his concerns about his thyroid and soy diet is evidence
of deliberate indifference. It is unclear from the record when Dominguez is supposed to have made
this statement (she denies ever saying it, but the court is bound at this point to accept that she did),
but it ultimately does not matter for the same reasons that the callous and dismissive statements
purportedly made by Carter are not evidence of deliberate indifference where, as here, Dominguez
continued to treat and seek diagnostic testing for Green throughout the complained-of period. See
Ray, 706 F.3d at 866. Green, as an inmate of the state, has a right to constitutionally adequate
medical care, which on this record he received, but no court Green has cited has extended a right to
courteous medical care without the physician running afoul of the Eighth Amendment’s prohibitions
on cruel and unusual punishment. See id.
Finally, Dominguez is entitled to qualified immunity for essentially the same reasons as set
out supra. Green cites no case law, and this court’s research uncovered none, that places outside the
realm of debate the question of whether a doctor, when seeing a patient who presents with a history
abdominal pain and constipation and an occasional history of mildly elevated TSH levels, violates
11

Dominguez testified that she was unable to provide a soy-free diet because it was not one of the approved
therapeutic diets offered by the IDOC. However, Carter testified that he believed he could have ordered such a diet and
Green notes that at least one inmate in the Harris lawsuit has been provided such a diet. Accordingly, a reasonable jury
could conclude that Dominguez had the capability to prescribe such a diet but, as Green testified, simply refused.
12

Green’s expert testified similarly, but more broadly, that in his opinion all soy interferes with the absorption
of Synthroid. However, for the same reasons supra, there is no indication that the more general opinion held by Green’s
expert has permeated medical treatment protocols to the point that no minimally competent doctor would fail to prescribe
a soy-free diet for any patient on Synthroid.

15

the Constitution by ordering various other diagnostic tests and treatment before ordering a series
TFTs and Synthroid, and continues to refuse to prescribe a soy-free diet. Mullenix, 577 U.S. at ___,
136 S. Ct. at 308 (“[E]xisting precedent must have placed the statutory or constitutional question
beyond debate.” (quotation marks omitted)).
Based on the foregoing, there is insufficient evidence on the record for a reasonable jury to
conclude that Dominguez was deliberately indifferent to Green’s hypothyroidism, and none of
Green’s arguments to the contrary, individually or as a group, change that analysis. Even if there
were, Dominguez is entitled to qualified immunity. Accordingly, the motion for summary judgment
is granted as to Dominguez.
III. CONCLUSION
Defendants’ motion for summary judgment is granted. This case is closed.13

Date: 3/29/2016

ENTER:
_________________________
FREDERICK J. KAPALA
District Judge

13

The court recognizes that Green’s attorneys and his expert offered their services to Green without cost, the
attorneys by way of recruitment by this court and the expert by way of volunteering. The court wishes to express its
thanks for the hard work of all involved in presenting the best possible case for Green.

16