Gregory Baker v. State Of Illinois And The Illinois Dept. Of Corrections et al
Filing
122
ORDER Signed by the Honorable Philip G. Reinhard on 7/28/2015 : For the reasons stated below, the defendants' motion to strike 106 is denied and defendants' motion for summary judgment 86 is granted as to Dr. Dominguez and Dr. Funk and granted in part and denied in part with regard to Wexford. The parties are directed to contact Magistrate Judge Iain Johnston's chambers by August 24, 2015 to arrange for a settlement conference with regard to the remaining claims. [See STATEMENT - OPINION] Mailed notice (jp, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Gregory Baker,
Plaintiff,
vs.
Wexford Health Sources, Inc., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. 13 C 50193
Judge Philip G. Reinhard
ORDER
For the reasons stated below, the defendants’ motion to strike [106] is denied and
defendants’ motion for summary judgment [86] is granted as to Dr. Dominguez and Dr. Funk and
granted in part and denied in part with regard to Wexford. The parties are directed to contact
Magistrate Judge Iain Johnston’s chambers by August 24, 2015 to arrange for a settlement
conference with regard to the remaining claims.
STATEMENT - OPINION
On March 2, 2015, defendants Wexford Health Sources, Inc., Dr. Bessie Dominguez, and
Dr. Arthur Funk filed a joint motion for summary judgment [86], as well as their memorandum
in support [91], Local Rule 56.1(a)(3) statement of facts [87], and corresponding exhibits [8890]. On April 7, 2015, plaintiff Gregory Baker filed his response [95], Rule 56.1(b)(3)(A)-(B)
response to defendants’ statement of facts [96], and Local Rule 56.1(b)(3)(C) statement of
additional facts [97]. On May 6, 2015, defendants filed their reply [102] and response to
plaintiff’s statement of additional facts [101]. The court granted plaintiff’s motion to file a
surreply, which plaintiff filed on May 11, 2015 [108]. Defendants filed a motion to strike
plaintiff’s motion for leave to file a surreply [106], which is hereby denied as moot. Defendants
also filed a motion for leave to file a sur-surreply, which the court denied [112]. Defendants’
motion for summary judgment is now ripe for the court’s review.
On summary judgment, the court construes all facts and draws all inferences in the light
most favorable to the non-moving party. Schepers v. Commissioner, Indiana Dept. of
Corrections, 691 F.3d 909, 913 (7th Cir. 2012). The court does not weigh evidence or determine
the credibility of witness testimony. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th
Cir. 2011). Instead, the court only grants summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). That said, Rule 56 “mandates the entry of summary judgment, after
1
adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Prior to addressing the merits of defendants’ motion, it is necessary to set forth the
undisputed facts located in the parties’ Local Rule 56.1 Statements of Material Fact, as well as
plaintiff’s version of relevant disputed facts. In addition, the court is cognizant of its obligation
to construe all disputed and undisputed facts in the light most favorable to plaintiff and does so
accordingly. See Schepers, 691 F.3d at 913.
A. FACTUAL BACKGROUND.
At all relevant times, plaintiff Gregory Baker was incarcerated at the Dixon Correctional
Center in Dixon, Illinois.1 [96] at ¶ 3. At all relevant times, Wexford Health Sources, Inc.
contracted with the IDOC to provide medical services to inmates at various IDOC prisons,
including Dixon. [96] at ¶ 4. In 2011 and 2012, medical staff at Dixon included a medical
director, a staff physician, a physician’s assistant, and twenty to thirty nurses. [96] at ¶ 72. Dr.
Bessie Dominguez was employed during the relevant time as the site physician at Dixon,
practicing general medicine and providing medical services to inmates. [96] at ¶ 5. Dr. Arthur
Funk was employed during the relevant time as Wexford’s Regional Medical Director for the
northern region of Illinois, which includes Dixon. [96] at ¶ 6.
The parties dispute the date of plaintiff’s injury. According to plaintiff, on July 11, 2011,
plaintiff was assigned a work detail in the dietary unit of Dixon, cleaning pots and pans. [96] at
¶¶ 9-10. He was asked by his supervisor, Darla Habben, to help another inmate unload a food
“hotbox” from a van. Id. While attempting to unload the box, he lost control and it fell on his
right hand and arm. Id. He grabbed his arm after the incident and informed Habben what had
occurred at approximately 1:30 p.m., but continued working throughout the day cleaning pots
and pans. [97-2] at 7; [96] at ¶ 11.
When he woke up on July 12, 2011, plaintiff “couldn’t get out of bed” because his arm
and hands were badly swollen. [97-2] at 7. He observed that he had “a big knot” at the top of his
right arm and that “from my hand up to my arm it was swollen. My fingers were swollen and
stuff. And I knew something was wrong, because I couldn’t turn my hand over.” [97-2] at 1415. In order to turn his hand, he needed to turn his elbow rather than his wrist. [97-2] at 16.
Plaintiff asked an officer if he could be taken to the healthcare service and was informed
that he would need to sign up for sick call. [97-2] at 7-8. At work that day, he showed Habben
the swelling and “she looked like, whoa, this is pretty swollen up.” [97-2] at 8. When he asked
her to take him to Health Services, she consulted with Cynthia Eykamp, a Public Service
1
Plaintiff has since been released from the custody of the Illinois Department of
Corrections.
2
Administrator at Dixon, who instructed that plaintiff put ice on his arm and sign up for sick call.
Id.; [101] at ¶ 1. After work, plaintiff signed up for sick call to be seen the next day, on July
13th. [97-2] at 17.
Plaintiff testified that at one point after he informed her of the incident, Habben informed
him that she did not want to fill out an incident report and that he was “going to mess up [her]
vacation time, you know, messing around with the incident reports[.]” [97-2] at 14. Habben
signed an incident report on July 26, 2011, stating that the incident occurred on July 25, 2011.
[97-2] at 12; [101] at ¶ 2.
On July 13, 2011, plaintiff went to sick call and explained the incident and his symptoms
to “Nurse Katie,” [97-2] at 18, referred to by Dr. Dominguez as Nurse Cady. See [87-2] at 16,
19. Nurse Cady attempted to have plaintiff seen by a physician, but according to plaintiff “by
that time there, I guess it was short-staffed or something or a lot of people was going on
vacations or whatever, you know, so it was like short-staffed or something.” [97-2] at 18.
Because of this, “she said because there wasn’t a lot of people there that help or whatever, so she
gave me some aspirin and an Ace bandage. And she just told me that she would put me on the
list to see the doctor due to the fact there’s a shortage[.]” [97-2] at 18. It is undisputed that it
was Wexford’s custom and practice to list any time that a patient presented to sick call, and that
no record reflects that plaintiff presented to sick call on July 13, 2011. See [96] at ¶¶ 10, 61. Dr.
Dominguez testified that she could not recall if she or any other medical staff were on vacation in
July of 2011. [96] at ¶ 72.
Plaintiff was called back to Health Services on August 1, 2011, at which time he again
spoke to Nurse Cady, who recognized him from his previous visit and referred him to Dr.
Dominguez for an examination on August 2, 2011. [97-2] at 20; [96] at ¶ 12.
Plaintiff first saw Dr. Dominguez on August 2, 2011, at which time he explained the
incident and his resulting symptoms. [96] at ¶ 13. She examined his arm and determined that
the right wrist was swollen and had a decreased range of motion. Defendant testified that the
knot on the top of his right arm was visible at the time of the examination. [97-2] at 21. She
opined that “it looked liked a nice little sprain” and diagnosed plaintiff with a right wrist injury.
Id. She also wrapped his wrist up to the middle arm in an ACE bandage, prescribed him 600
milligrams of ibuprofen, and directed him to keep his arm elevated. [97-2] at 21-22; [96] at ¶ 14.
Dr. Dominguez also ordered x-rays of plaintiff’s wrist to rule out a fracture. The x-rays
were performed at Dixon on August 2, 2011 and delivered to OneRadiology, which reviewed the
films and completed an x-ray report on August 3, 2011. [87-2] at 14, 40. However, the
OneRadiology x-ray report was not reviewed by a Wexford physician at that time. Plaintiff
signed up for sick call on August 8, 2011, at which time the medical chart notes that he was
“asking questions about wrist.” [87-2] at 15. On August 10, 2011, Dr. Jill Wahl, traveling
medical director, reviewed the OneRadiology x-ray report, noted an “abnormal right wrist x-ray,”
and ordered that plaintiff follow up with Dr. Dominguez. Id.; [96] at ¶ 15. Dr. Dominguez
3
testified that Wexford’s policy at the time was that “the medical director got all the x-rays and
lab reports” which could at times cause delays in treatment if the medical director was
unavailable on the day that the x-ray results became available. [87-2] at 15, 17.
Plaintiff was seen by Dr. Dominguez on August 12, 2011, at which time she examined
him, discussed the x-ray findings showing a mildly separated ulna, and opined that plaintiff had a
right ulnar tip dislocation. [96] at ¶ 16. Dr. Dominguez submitted a referral request to
Wexford’s collegial review board in an effort to obtain a consultation for him with an outside
specialist. Id. The August 15, 2011 collegial review, which Dr. Wahl participated in, denied the
referral request based on the totality of the evidence and recommended conservative treatment for
plaintiff’s wrist. Id. Dr. Wahl discussed the decision with Dr. Dominguez on August 15, 2011,
and Dr. Dominguez scheduled a re-evaluation and repeat x-ray for plaintiff. Id.
On August 17, 2011, plaintiff filed an emergency grievance regarding the referral request
and complained that he was not receiving adequate medical treatment for his “hand wrist, and
arm [which was] still in overwhelming pain” and he believed he had “nerve damage and a
fractured bone.” [101] at ¶ 8.
On August 24, 2011, Dr. Dominguez examined plaintiff for a third time and ordered a
repeat x-ray of his wrist, which continued to show an ulna separation. [96] at ¶ 17. The
examination revealed that while plaintiff’s swelling had improved, part of plaintiff’s right ulna
“was prominently sticking out,” he continued to have right wrist pain, and “his range of motion
was still so limited.” Id. Dr. Dominguez re-wrapped plaintiff’s ACE bandage and informed him
how to fill the prescription for his pain and anti-inflammatory medication. Id.
On September 9, 2011, Dr. Dominguez examined plaintiff for a fourth time, at which
time the knot on his arm was still visible, he continued to complain of pain, and his range of
motion remained limited. [96] at ¶ 18. She ordered additional x-rays and determined that
plaintiff should be referred to the regional medical director, Dr. Funk, for a possible second
opinion on an orthopedic referral “ASAP.” [87-2] at 20. This was “[b]ecause it’s been kind of
like a month of follow-up, and I wasn’t seeing any improvement.” Id. Due to her own referral
request being denied, Dr. Dominguez testified that her plan was to obtain a second opinion from
Dr. Funk, “or what I’m hoping is that he will appeal that and hopefully get it going, considering
it’s been a month.” Id.; [96] at ¶ 18. When asked if a month of follow up was unusual or typical,
Dr. Dominguez testified that it was “[k]ind of typical. I kind of get impatient.” [87-2] at 20; [96]
at ¶ 18. Plaintiff was scheduled to be seen by Dr. Funk on September 22, 2011. [96] at ¶ 18.
On September 11, 2011, plaintiff received a denial of his emergency grievance,
purportedly from Warden Chandler, determining that his condition was not an emergency. [101]
at ¶ 11. Later that day, plaintiff spoke to Warden Chandler and showed his injury to her. Id.
Chandler agreed that his wrist looked twisted and spoke to Dr. Funk in the healthcare unit to
request that plaintiff be seen. Id. Dr. Funk rescheduled plaintiff’s appointment and examined
him on September 12, 2011. [96] at ¶ 18. Dr. Funk noted the knot on plaintiff’s arm, as well as
4
continuing pain in his wrist and limitation in his range of movement. [96] at ¶ 19. He approved
a thirty-day lay in and explained to plaintiff that he would be requesting an expedited referral to
an orthopedic specialist. Id. On September 13, 2011, Dr. Funk participated in collegial review
and plaintiff was approved for an expedited independent orthopedic consultation, which was
scheduled for September 27, 2011. [96] at ¶ 20. It is undisputed that when a referral for an
outside specialist is approved, Wexford’s practice is to schedule an appointment within one day.
[96] at ¶ 71.
On September 27, 2011, plaintiff was taken to KSB Hospital in Dixon, Illinois, and was
examined by Dr. Gabriel, a general orthopedic physician. [96] at ¶ 21. Dr. Gabriel reviewed xrays of plaintiff’s wrist which had been taken at Dixon Correctional. [96] at ¶ 22. He
determined based on the x-rays and a physical examination of plaintiff that plaintiff had a
fracture farther up his arm. Id. Dr. Gabriel ordered x-rays of plaintiff’s forearm, which revealed
a fracture that he described as at least six to eight weeks old. Id.
Dr. Gabriel asked the guards accompanying plaintiff why he had been referred so late.
[101] at ¶ 13. Dr. Gabriel testified that he would have treated the fracture acutely if he had seen
plaintiff closer to the time of the incident. [88] at 15. However, as time went on and the fracture
began to heal, it would require more complicated reconstructive surgery by a specialist. Id.
Because plaintiff’s fracture could no longer be treated on an acute basis, Dr. Gabriel referred him
to a hand orthopedic specialist at the University of Illinois Chicago (“UIC”) for possible
reconstructive surgery. Because the fracture could no longer be treated acutely, Dr. Gabriel
testified that the injury was no longer emergent and there was no particular timeframe in which
the surgery would need to occur. [96] at ¶ 24. He testified that “you don’t want it to go six
months or anything[,]” but that even after six months it could still be worked on. [101] at ¶ 13.
When asked for the threshold time period in which he would move from treating the fracture
acutely to referring it to a specialist, he testified “if I’m thinking here out loud, at what point
would I have gone from I’ll take care of this to refer it? You know, a month or so. For sure six
weeks. But something like that.” [88] at 15. When asked whether a delay in treatment could
have exacerbated plaintiff’s injury, Dr. Gabriel testified that it was possible, but also that with
plaintiff’s injury he could suffer continuing mobility problems even if he treated it immediately
after the injury. [96] at ¶ 24.
After Dr. Gabriel’s examination and referral, Dr. Funk and Wexford’s utilization
management approved plaintiff to see a hand orthopedic specialist at UIC, and an appointment
was scheduled for November 21, 2011. [96] at ¶¶ 26-28. Dr. Funk also ordered a three-month
lay in for plaintiff, ordered additional x-rays, prescribed additional pain medications, and ordered
that plaintiff be placed in an Ace wrap, although the parties dispute whether plaintiff in fact
received an Ace wrap. Id.
On November 21, 2011, plaintiff was taken to UIC. [96] at ¶ 29. Due to miscommunication within UIC as to whether plaintiff required an upper extremity or knee specialist,
plaintiff was examined by Dr. Chmell, an orthopedic surgeon who specializes in knee problems
5
rather than upper extremities. [96] at ¶¶ 29-31. Dr. Chmell performed x-rays and referred
plaintiff to Dr. Meija, a hand specialist. Id. Dr. Chmell testified that urgent surgery was not
required and that plaintiff’s condition would be unchanged between November 21, 2011 and
February 13, 2012, when plaintiff’s next appointment was scheduled. Id.
Following Dr. Chmell’s examination and referral, Dr. Funk and Wexford’s utilization
management approved plaintiff to see Dr. Meija for an examination and possible surgery. [96] at
¶¶ 32-36. Dr. Funk was notified that UIC had scheduled plaintiff for an appointment on February
13, 2012, and according to plaintiff’s medical chart Dr. Funk responded that “that was gonna
have to work.” [101] at ¶ 18. During this time period, plaintiff drafted a letter complaining that
he had been given insufficient treatment for his injury, which risk management forwarded to Dr.
Funk. [96] at ¶ 34. Wexford ultimately responded to plaintiff that he had been referred for
further medical treatment and was going to be scheduled to be seen again in the near future. Id.
Also during this time period, plaintiff presented to sick call on multiple occasions and
was seen by Dr. Dominguez on several occasions. On January 27, 2012, plaintiff was examined
by Dr. Dominguez, complaining of pain and numbness. [96] at ¶¶ 32-36. In response, Dr.
Dominguez prescribed new medications for his pain and numbness. Id.
On February 13, 2012, plaintiff was taken to UIC for his appointment with Dr. Meija.
[96] at ¶ 37. However, UIC cancelled the appointment that day and plaintiff was not seen by any
physician. Id. UIC originally rescheduled plaintiff’s appointment for April 5, 2012. Id. After
Wexford staff intervened and requested an earlier date, the appointment was rescheduled to
March 29, 2012. Id. During an appointment with Dr. Dominguez, plaintiff’s pain medications
were continued and Dr. Dominguez noted in her chart that plaintiff was “unfortunately not seen”
during his last UIC visit. [96] at ¶ 38; [101] at ¶¶ 22-23. In a March 19, 2012 letter to the
Illinois Attorney General’s office, Wexford staff noted that Wexford was aware of the continuing
delay in treating plaintiff’s injury, but “unfortunately by the time a diagnosis was made time was
no longer a factor” and Wexford was attempting to expedite referrals. [101] at ¶ 23.
On March 29, 2012, plaintiff was taken to UIC and examined by Dr. Meija. [96] at ¶¶
39-40. Dr. Meija recommended and planned reconstructive surgery to repair the fracture. Id.
Dr. Funk and Wexford’s utilization management approved plaintiff for surgery. [96] at ¶¶ 41,
43. UIC originally scheduled plaintiff for surgery on April 20, 2012, but cancelled and
rescheduled to May 12, 2012. Id. While awaiting surgery, plaintiff was again seen by Dr.
Dominguez, who prescribed him additional pain medications. [96] at ¶ 42.
On May 12, 2012, Dr. Meija performed a surgical reconstruction to repair plaintiff’s arm.
[96] at ¶ 44. Dr. Meija testified that he considered the surgery a success and that the timing was
reasonable, if not remarkable, for how soon the surgery was performed after he first saw plaintiff.
Id.
6
During follow-up appointments with Dr. Meija, plaintiff complained of continuing
numbness to his arm. [96] at ¶¶ 45-54; [101] at ¶¶ 27-33. Dr. Meija opined that this numbness
was potentially related to the delay between plaintiff’s injury and surgery, but that it also could
have been independent of the delay or caused by a separate injury. Id.
B. ANALYSIS
“The Eighth Amendment safeguards the prisoner against a lack of medical care that may
result in pain and suffering which no one suggests would serve any penological purpose.” Perez
v. Fenoglio, __ F.3d __ , 2015 WL 4092294, at *3 (7th Cir. July 7, 2015) (quoting Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir.2009)) (internal quotations omitted). “To
state an Eighth Amendment claim based on deficient medical care, a plaintiff must allege an
objectively serious medical condition and an official’s deliberate indifference to that condition.”
Perez, 2015 WL 4092294, at *3. Here, because there is no dispute that plaintiff’s fractured arm
constituted an objectively serious medical condition, the only issue is whether plaintiff has raised
a genuine issue of material fact as to whether the defendants’ actions constituted deliberate
indifference. See id.2
“Deliberate indifference occurs when a defendant realizes that a substantial risk of serious
harm to a prisoner exists, but then disregards that risk.” Id. (citing Farmer v. Brennan, 511 U.S.
825, 837 (1994) (plaintiff must show that officials are “aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and they must also draw the
inference.”)). “The deliberate indifference standard reflects a mental state somewhere between
the culpability poles of negligence and purpose, and is thus properly equated with reckless
disregard.” Perez, 2015 WL 4092294, at *3.
The court will conduct the foregoing analysis with regard to the claims against the named
prison physicians, Dr. Dominguez and Dr. Funk, as well as the claims against Wexford, to
determine if plaintiff has raised a genuine issue of fact as to whether the respective defendants
were deliberately indifferent to his medical needs.
2
Defendants also contend that plaintiff has failed to show causation because “there is no
evidence that the alleged delay harmed Plaintiff[,]” all his pain was “associated with the injury
sustained while unloading the hotbox[,]” and thus “[t]here is no genuine issue of material fact
upon which a reasonable jury could conclude that Plaintiff suffered substantial harm unrelated to
the initial injury as a result of the Defendant’s conduct.” [96] at 18. However, this argument is
easily rejected because the Seventh Circuit recently found that “a delay in treatment may
constitute deliberate difference if it exacerbates the inmate’s injury or unnecessarily prolonged
his pain.” Perez, 2015 WL 4092294, at *8. Plaintiff’s testimony is that he suffered ongoing pain
for ten months awaiting surgery, and thus the fact that plaintiff’s pain originated from his injury,
rather than defendants’ conduct, does not defeat causation.
7
1. The Prison Physicians – Dr. Dominguez and Dr. Funk.
Although plaintiff references several treating physicians throughout his complaint, only
Dr. Dominguez and Dr. Funk are named as defendants. As a general proposition, “[p]rison
physicians will be liable under the Eighth Amendment if they intentionally disregard a known,
objectively serious medical condition that poses an excessive risk to an inmate’s health.” Perez,
2015 WL 4092294, at *4 (quoting Gonzales v. Feinerman, 663 F.3d 311, 313 (7th Cir.2011)).
Defendants contend that there is no genuine dispute of material fact because Dr. Dominguez and
Dr. Funk at all times exercised their medical judgment to diagnose and treat plaintiff’s injury,
including referring him to outside orthopedic specialists and treating his symptoms with pain
medication and stabilizing ACE bandages. See [91]. Plaintiff counters that there is a genuine
dispute as to whether Dr. Dominguez and Dr. Funk were deliberately indifferent by condoning
the lengthy wait times for referral approval and orthopedic appointments once scheduled. See
[95]. Plaintiff also suggests that there is a genuine issue of material fact as to whether Dr.
Dominguez and Dr. Funk were deliberately indifferent by administering ACE bandages to his
injury rather than a splint or cast, which would have provided greater immobility and stability.
See [95] at 10.
At first glance, the underlying facts of this case bear a striking resemblance to the
allegations in Perez v. Fenoglio, in which the Seventh Circuit recently found that a plaintiff
stated a claim of deliberate indifference against a Wexford prison physician. In Perez, as here,
the plaintiff alleged a ten-month delay between suffering a serious injury to his hand and
obtaining “meaningful treatment in the form of surgery.” Perez, 2015 WL 4092294, at *5. The
district court dismissed the complaint, finding that the plaintiff “had undermined any contention
of deliberate indifference by ‘conceding’ to having received ‘immediate’ and ‘continuing’
medical attention from prison staff for his injury.” Id. at *4. The Seventh Circuit reversed,
finding that the lengthy delay between the injury and surgery supported the plaintiff’s deliberate
indifference claim against the prison physician. See id. at **4-6 (“A delay in treatment may
show deliberate indifference if it exacerbated the inmate’s injury or unnecessarily prolonged his
pain. Whether the length of delay is tolerable depends upon the seriousness of the condition and
the ease of providing treatment.”). Also like this case, the plaintiff in Perez alleged that the
prison physician only partially immobilized his injury with an ACE bandage rather than
completely immobilizing it with a splint – the Seventh Circuit found that there too the plaintiff
had adequately stated a deliberate indifference claim. The apparent similarities between the facts
of this case and Perez merit a closer analysis of that decision to determine whether the two are
analogous or distinguishable.
Before delving further into the Seventh Circuit’s reasoning, it is important to note that
Perez was not decided at the summary judgment stage, but rather at the pleadings stage based on
the allegations in the plaintiff’s pro se complaint. See id. at *3 (“Because [the plaintiff’s]
complaint is pro se, we construe it liberally, holding it to a less stringent standard than formal
pleadings drafted by lawyers.”) (internal quotations and alterations omitted). First, the court
examined the plaintiff’s allegations that the prison physician was deliberately indifferent by
8
delaying his treatment for a hand injury, despite knowing that the plaintiff’s condition was severe
and causing him ongoing pain and suffering. The court noted that the plaintiff “alleges with
specificity a number of troubling delays in his treatment[,]” including the following:
After sustaining a gaping wound and open dislocation, [the plaintiff] was forced
to wait 24 hours before seeing a physician with authority to prescribe medication
or suture wounds. After being seen by [the prison physician], who determined
that the wound was so serious it required the care of a specialist, [the plaintiff]
had to wait four days (and had to file a grievance) before being sent to [an outside
specialist clinic]. By the time he arrived, it was too late for the specialist to suture
the wound. After visiting the [clinic], [the plaintiff] waited seven months (and
had to file another grievance) before he was returned to the clinic for follow-up
care. All told, while under [the prison physician’s] care, [the plaintiff]
experienced a ten-month delay from the time of his injury until the time he
received meaningful treatment in the form of surgery.
Id. at *5.
The Seventh Circuit found that “[s]uch unexplained delays could support a deliberate
indifference claim if [the prison physician] was aware of the severity of [the plaintiff’s]
condition.” Id. The plaintiff satisfied his burden at the pleading stage by alleging that the prison
physician was aware as early as his first appointment that the plaintiff had a severe hand injury.
Moreover, the plaintiff alleged that the prison physician saw him on multiple occasions thereafter
during the ten-month delay before surgery, during which he repeatedly complained of “ongoing
symptoms (pain and discomfort, bleeding, swelling, and loss of functioning), which could
support a finding that the delays in [the plaintiff’s] treatment were unacceptable.” Id. These
allegations, liberally construed, were sufficient for the plaintiff’s claim to survive. However, the
court cautioned that the inference of deliberate indifference supported by the plaintiff’s pro se
allegations could be defeated if, following discovery, “a more complete examination of the facts”
established that the prison physician “was not aware of the need for more urgent care, or that
someone else was responsible for the alleged delays.” Id. at *6.
Second, the court examined the plaintiff’s claim that the prison physician was deliberately
indifferent by allegedly ignoring the recommendations of the plaintiff’s medical specialists
without a medical reason for doing so. See id. at *5 (“Allegations that a prison official refused to
follow the advice of a medical specialist for a non-medical reason may at times constitute
deliberate indifference.”). The plaintiff alleged that despite his medical specialists’
recommendation that he either undergo surgery or be custom fitted for an immobilizing thumb
“spica splint,” id. at *2, the prison physician “allegedly ignored the recommendations, electing
instead to wrap [his] wound in an Ace bandage.” Id. at *5. Crucially, the court was able to infer
that this decision was based on deliberate indifference, rather than reasoned medical judgment,
because plaintiff alleged that the prison official made the “sarcastic statement” while
administering the Ace bandage that “[t]hat’s [your] thumb-splica [sic] splinter.” Id. at **2, 6
(citing Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir.1997) (prison official’s “sarcastic
9
responses” to prisoner’s complaint “help raise a dispute about . . . defendants’ knowledge of the
condition, and [his] refusal to take steps to prevent it”)). Again, however, the court noted that
this inference could be defeated at the summary judgment stage. See id. at *6 (“We recognize
that a more complete examination of the facts may show that [the plaintiff’s] condition did not
necessitate surgery or a splint . . . . It might also reveal that [the prison physician’s] treatment
plan fell within the specialists’ recommendations or was based on his own legitimate medical
judgment.”).
Here, “a more complete examination of the facts” reveals that plaintiff has not raised a
genuine dispute as to whether Dr. Dominguez and Dr. Funk were deliberately indifferent to his
medical needs. First, with regard to the ten-month delay in treatment, the undisputed facts show
that during the relevant time period, both Dr. Dominguez and Dr. Funk were attentive to
plaintiff’s complaints, exercised their medical judgment to diagnose and treat his injury, and
were either “not aware of the need for more urgent care,” or else “someone else was responsible
for the alleged delays.” See id. at *6.
During Dr. Dominguez’s first meeting with plaintiff following the incident on August 2,
2011, she listened to his complaints, examined his wrist and arm, noted his pain and limited
range of movement, opined that “it looked like a nice little sprain,” [97-2] at 21, ordered x-rays
to rule out a fracture, wrapped his wrist in an ACE bandage, prescribed ibuprofen, and directed
plaintiff to keep his arm elevated. When the x-rays were reviewed and she saw plaintiff again on
August 12th, she opined that plaintiff had a right ulnar tip dislocation and submitted a referral for
him to obtain a referral from an outside specialist. After her referral request was denied, she
ordered additional x-rays on August 24th and on September 9th referred him to Dr. Funk for a
second opinion on the orthopedic referral “ASAP.” [87-2] at 20. This referral resulted in
plaintiff being seen by a series of independent orthopedic surgeons who diagnosed plaintiff with
an arm fracture and planned for him to undergo reconstructive surgery. Between the time that
Dr. Dominguez referred plaintiff to Dr. Funk on September 9, 2011 and when Dr. Meija
performed surgery on May 12, 2012, she saw plaintiff on various occasions, addressed his
complaints, and actively monitored his progress at UIC.
It is clear from these facts that Dr. Dominguez’s treatment was not “so blatantly
inappropriate as to evidence intentional mistreatment,” see Greeno v. Daley, 414 F.3d 645, 654
(7th Cir. 2005), and the record does not support an inference that she was aware that he had a
fracture necessitating urgent treatment prior to his September 27, 2011 appointment with Dr.
Gabriel. While it is undisputed that Dr. Dominguez was initially incorrect about the source of
plaintiff’s symptoms, this at bests supports an inference of negligence, which does not constitute
cruel and unusual punishment. See Walker v. Benjamin, 293 F.3d 1030, 1036-38 (7th Cir. 2002)
(physician’s medical decisions “may have been negligent” but this did not arise to deliberate
indifference). Deliberate indifference can be inferred when a prison physician recklessly delays
referring a patient to outside specialists for non-medically justified reasons. See Arnett v.
Webster, 658 F.3d 742, 753 (7th Cir. 2011) (plaintiff stated a claim where he alleged he had “a
serious medical condition and his pleas for treatment and medication were ignored for over ten
10
months while he suffered intense pain”). In contrast, the undisputed facts show that prior to
plaintiff’s diagnosis, Dr. Dominguez was at all times exercising her medical judgment to
diagnose his injury, either by ordering imaging studies or by referring him to outside specialists
for further evaluation. Because she was “not aware of the need for more urgent care,” she was
not deliberately indifferent. See Perez, 2015 WL 4092294, at *6.
Plaintiff nonetheless argues that there is a genuine dispute as to whether Dr. Dominguez
caused and condoned the repeated delays involved in scheduling plaintiff’s UIC appointments
following his diagnosis, because of issues of fact “as to the amount of control” she had over his
referral appointments. See [95] at 18. It is true that Dr. Dominguez was aware of plaintiff’s
ongoing pain and discomfort throughout his lengthy wait for surgery. However, it is undisputed
that plaintiff’s appointments were in fact scheduled by UIC based on the availability of its
orthopedic surgeons. [96] at ¶ 71. Thus, at least in the first instance, “someone else was
responsible for the alleged delays.” See id. at *6; see also Walker, 293 F.3d at 1038 (summary
judgment was appropriate where plaintiff claimed deliberate indifference on the part of prison
physician regarding the delay between his treatment at the prison and his referral specialist
because plaintiff “presented no evidence that these delays were even within [the prison
physician’s] control, much less that he was deliberately indifferent to [the plaintiff’s] medical
need”). Moreover, plaintiff’s UIC treatment providers testified that his injury was no longer
emergent and that he was timely scheduled for each subsequent appointment as any ordinary
patient. See [88-1] at 9-10. In the light of an existing treatment plan by the specialists who had
assumed responsibility for plaintiff’s surgery, the record does not support a reasonable inference
that Dr. Dominguez was deliberately indifferent by failing to actively disrupt his schedule or
transfer him to a different outside facility and thereby replace his treatment providers.
The analysis is substantially similar as to Dr. Funk. Although Dr. Dominguez scheduled
plaintiff for an appointment with him on September 22, 2011, Dr. Funk spoke about plaintiff
with Warden Chandler on September 11th and rescheduled the appointment to September 12th.
On that day, he examined plaintiff, reviewed his x-rays, requested an “urgent” referral to an
outside orthopedic specialist, and approved a thirty-day lay in. He then participated in collegial
review on September 13th and obtained approval for the referral. Thus, the record shows that
prior to plaintiff’s diagnosis, when the urgency of plaintiff’s injury was still unclear, Dr. Funk
acted to minimize, rather than exacerbate, the delays in plaintiff’s treatment.
With regard to plaintiff’s post-diagnosis care, the undisputed facts show that Dr. Funk’s
actions focused on approving the plans of the outside orthopedic specialists. Like Dr.
Dominguez, he was not directly involved in scheduling the UIC appointments and thus “someone
else was responsible for the alleged delays.” See id. at *6. As with Dr. Dominguez, plaintiff
argues that Dr. Funk was nonetheless deliberately indifferent by condoning the UIC scheduling
delays, pointing to evidence that Dr. Funk was aware of and accepted the lengthy wait times. On
January 9, 2012, Dr. Funk purportedly was told that plaintiff’s next UIC appointment was not
scheduled until mid-February and replied “that was gonna have to work.” [101] at ¶ 18. Plaintiff
also points to correspondence with Wexford risk management in which he complained of his lack
11
of treatment. In Wexford’s January 12, 2012 response, based on information supplied by Dr.
Funk, plaintiff was informed that he was going to be scheduled for a follow up in the near future.
Dr. Funk, like Dr. Dominguez, was not deliberately indifferent merely because he
“condoned” the timing of appointments made by plaintiff’s orthopedic treatment providers, who
had determined his injury was non-emergent and scheduled him “like anyone else” in his
situation. See [96] at ¶ 21. While plaintiff is understandably frustrated with the eight-month
delay between Dr. Gabriel’s recommendation and his surgery, much of this delay is attributable
to an unforeseeable series of errors attributable to UIC. Thus, it does not give rise to a reasonable
inference of deliberate indifference against Dr. Funk, who exercised his medical judgment in
deferring to the orthopedic specialists’ treatment plans.
Plaintiff also appears to suggest that Dr. Dominguez and Dr. Funk were deliberately
indifferent because they imperfectly immobilized his injury with ACE wrap, when they should
have used a more effective method such as a cast or splint. As noted, these allegations bear a
superficial similarity to those found to state a claim of deliberate indifference in Perez. But
several important differences make plaintiff’s situation distinguishable.
First, this case is at the summary judgment stage, and plaintiff has not raised a genuine
issue of disputed fact that complete immobilization of his injury was medically necessary. To
support his argument, plaintiff points to the following deposition testimony from Dr. Chmell, Dr.
Meija, and Dr. Funk. When asked whether “a cast or immobilization would have been useful” in
plaintiff’s case, Dr. Chmell responded that “[w]ell, it would have been useful in terms of
alleviating the pain.” [88-1] at 13. When asked whether “seeing Dr. Chmell constitutes
treatment,” Dr. Meija responded that “[i]n a semantic sense, yes. In a semantic – that’s word
play. He’s being examined, if you have a fracture you’ll need either immobilization, protected
mobilization, surgery, some other actual treatment.” [97-12] at 8. Later in his deposition, when
asked “[i]s there any risk to walking around with a forearm broken in terms of no sling, no cast,
nothing?” Dr. Meija responded “[i]t’s a little speculative. I mean, you could – we immobilize
fractures because the bone can cause further damage” Id. at 41. He also agreed that “there is
some risk to not immobilizing a fracture[.]” Id. Finally, Dr. Funk testified that plaintiff’s injury
was “immobilized” with an ACE wrap on the upper extremity. [87-3] at 19. When asked if an
ACE wrap “would be immobilizing his forearm,” Dr. Funk responded that “[i]t would act to
mobilize [sic], but it would not fully immobilize the area or the arm.” Id. Dr. Funk was then
asked “[w]ould a cast fully immobilize it?” and he responded “[a] cast would be also a form of
immobilizing, yes. It would be more of a restrictive in that it would serve more to immobilize.”
Id.
The above testimony is insufficient to raise an inference of negligence, let alone
deliberate indifference. There appears virtually no factual development of the issue, and plaintiff
does not point to any portions of Dr. Chmell’s or Dr. Meija’s depositions in which they discussed
the appropriateness of an ACE wrap, rather than a cast or splint, to immobilize his injury. Only
Dr. Funk discussed the difference between an ACE wrap and other forms of immobilization, and
12
he did not discuss whether greater immobilization was medically necessary in this case, other
than to generally testify that he met the standard of care at all times when treating plaintiff. [873] at 27. Moreover, there is no evidence that plaintiff’s orthopedic specialists recommended a
cast or disapproved of an ACE wrap. Dr. Gabriel’s September 27, 2011 office note does not
make a recommendation as to immobilization. [87-3] at 80. Dr. Chmell’s November 21, 2011
office note states only that “we recommend he not weight bear with that upper extremity.” [881] at 47-48. Dr. Meija’s March 29, 2012 office note, despite mentioning that “[t]he patient has
never had any calf casting or any immobilization or surgeries[,]” makes no recommendation of
immobilization prior to his surgery. [97-12] at 68-69. Thus, unlike in Perez, where the plaintiff
alleged that the prison physician ignored the specialists’ recommendations of a splint for a nonmedical reason, here there is no evidence that Dr. Dominguez or Dr. Funk acted contrary to
plaintiff’s specialists’ recommendations or failed to exercise medical judgment in administering
or ordering the ACE wraps.3 See Perez, 2015 WL 4092294, at *6 (noting that an inference of
deliberate indifference would be defeated if “a more complete examination of the facts” revealed
“that [the prison physician’s] treatment plan fell within the specialists’ recommendations or was
based on his own legitimate medical judgment”). As such, no reasonable inference of deliberate
indifference arises out of Dr. Dominguez’s and Dr. Funk’s use of ACE wraps to immobilize
plaintiff’s injury.
For the foregoing reasons, plaintiff has not raised a genuine issue of material fact as to
whether Dr. Dominguez or Dr. Funk were deliberately indifferent to his medical needs, and thus
summary judgment in favor of Dr. Dominguez and Dr. Funk [86] is granted.
3. Wexford.
Plaintiff also contends that Wexford was deliberately indifferent to his medical needs.
“In this circuit, a private corporation cannot be held liable under § 1983 unless it maintained an
unconstitutional policy or custom.” Perez, 2015 WL 4092294, at *7. A plaintiff may establish
“municipal liability” against a private corporation by showing that the unconstitutional act
complained of is caused by: “(1) an official policy adopted and promulgated by its officers; (2) a
practice or custom that, although not officially authorized, is widespread and well settled; or (3)
an official with final policy-making authority.” Thomas v. Cook County Sheriff's Department,
604 F.3d 293, 303 (7th Cir.2010). “A plaintiff pursuing a ‘practice or custom’ theory of liability
must show that policymakers were ‘deliberately indifferent as to the known or obvious
consequences’ of that practice or custom. ‘In other words, they must have been aware of the risk
created by the custom or practice and must have failed to take appropriate steps to protect the
plaintiff.’ Finally, the plaintiff must present evidence that this widespread custom or practice
3
Plaintiff also notes that after Dr. Funk ordered an ACE wrap on September 29, 2011,
there is a factual dispute as to whether plaintiff in fact received an ACE wrap. See [96] at ¶ 15.
However, he does not dispute that Dr. Funk ordered the ACE wrap and does not suggest that the
failure to administer the ACE wrap was the result of an official policy or practice. See id. Thus,
no reasonable inference of deliberate indifference arises from this occurrence.
13
caused him a constitutional injury.” Ford v. Ghosh, 2014 WL 4413871, at *10 (N.D. Ill. 2014)
(quoting Thomas, 604 F.3d at 303). In any case, “a municipal policy or practice must be the
‘direct cause’ or ‘moving force’ behind the constitutional violation. In other words, it is when
execution of a government’s policy or custom . . . inflicts the injury that the government as an
entity is responsible under § 1983.” Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917,
927 (7th Cir. 2004) (internal quotations omitted).
In his briefs and Rule 56 statements and responses, plaintiff sets forth several theories of
liability against Wexford. Plaintiff primarily focuses on the claim “that Wexford was well aware
of and had a widespread practice and custom of tolerating, condoning or encouraging delays in
referrals and acted with deliberate indifference to the known or obvious consequences of its
practices.” [95] at 20. Plaintiff contends that he has raised a genuine issue of material fact that
“[d]espite Wexford’s express policy that outside services be provided in a timely manner and its
ability to seek other providers or intervene in scheduling if it chose, Wexford was aware of and
condoned lengthy delays in appointments with outside specialists.” Id. at 23. However, the
alleged “widespread practice” of delaying referrals is not supported by the parties’ statements of
facts and responses.
As a preliminary matter, plaintiff makes a series of admissions that significantly narrow
the scope of his claims. With regard to the initial delay between a physician’s referral request
and Wexford’s decision, plaintiff does not dispute that when a physician makes a non-emergent
referral, collegial review evaluates the referral “within a week of the time they are made, during a
weekly scheduled call[,]” and that when a referral is urgent, “a provider can request an earlier
appointment for a collegial review, subject to availability.” [96] at ¶ 62. He does not dispute
that when Dr. Funk requested an “urgent” referral, collegial review and approval occurred the
following day. [96] at ¶¶ 19-20. With regard to referral denials, plaintiff does not dispute that
Wexford’s denial of Dr. Dominguez’s first referral was based on the medical judgment of the
collegial review physicians based on the medical evidence, rather than for the purposes of delay:
Defendant’s Statement of Fact No. 16: . . . . On August 16, 2011, Dr. Wahl
discussed Plaintiff’s case in collegial review. Dr. Dominguez was not involved in
the collegial review. Based on the totality of the medical evidence presented,
Wexford’s collegial review board denied Dr. Dominguez’s referral for the time
being, and instead recommended conservative treatment for Plaintiff’s wrist. . . .
Response: Undisputed, except that the collegial review took place on August 15,
2011 and was recorded in Wexford’s Authorization Tracking Logs on August 16,
2011.
[96] at ¶ 16 (internal record citations omitted) (emphasis supplied).
With regard to the delay between approvals and scheduling, plaintiff does not dispute that
“[g]enerally, an appointment for off-site medical services is scheduled the same day Wexford
approves the referral request for the off-site service.” [96] at ¶ 71. Finally, with regard to the
delay caused by appointment availability, plaintiff essentially concedes that appointments were
14
scheduled by the off-site facility in the first instance and Wexford’s participation was largely
restricted to monitoring those schedules:
Defendant’s Statement of Fact No. 71: With respect to scheduling inmate
appointments at University of Illinois Chicago Hospital, a scheduler at UIC will
schedule the inmate’s appointment. UIC has a designated person who schedules
inmate appoints [sic] at the hospital. A UIC employee directs and controls the
scheduling of inmate appointments at UIC. The date of a prisoner’s off-site
appointment would be subject to the availability and the scheduling of the selected
off-site provider. . . .
Response: Undisputed, but the Utilization Management employees at Wexford
assisted with scheduling appointments at UIC. They were involved in calling the
UIC scheduler to determine when the patient is scheduled. Wexford provided
UIC with a report of all the approved cases that needed to be scheduled there and
had a good sense of what was going on in terms of appointments with the
University of Illinois. Moreover, Dr. Funk has admitted when there was no
appointment available from the usual off-site physicians, Wexford would seek to
send inmates to another provider.
[96] at ¶ 71 (internal record citations omitted).
Given these concessions, the focus of plaintiff’s claim appears to be that Wexford has a
widespread practice of condoning lengthy scheduling appointments made by its off-site referral
providers. In other words, rather than insisting on faster appointments or searching for speedier
facilities, Wexford’s practice is simply to accept whatever appointments its off-site providers
schedule according to their own availability. This widespread practice, plaintiff argues, resulted
in unconstitutionally lengthy delays for his treatment which caused him unnecessary pain.
Plaintiff’s claim is not implausible on its face. The Seventh Circuit has held that “[a] delay in
treatment may show deliberate indifference if it exacerbated the inmate’s injury or unnecessarily
prolonged his pain. Whether the length of delay is tolerable depends upon the seriousness of the
condition and the ease of providing treatment. In some cases, even brief, unexplained delays in
treatment may constitute deliberate indifference.” Perez, 2015 WL 4092294, at **4, 8 (“Even a
few days’ delay in addressing a severely painful but readily treatable condition suffices to state a
claim of deliberate indifference.”) (internal quotations omitted). Thus, the court must evaluate
whether plaintiff has raised a genuine issue of material fact as to whether Wexford’s
acquiescence to his various scheduling delays unnecessarily prolonged his pain based on the
seriousness of his condition and the ease of providing treatment.
A significant portion of the scheduling delays occurred while plaintiff was waiting for
various UIC appointments following Dr. Gabriel’s diagnosis and recommendation for surgery.
On October 4, 2011, Wexford approved plaintiff for a referral to a UIC hand specialist; UIC
scheduled an appointment for November 21, 2011, a 48-day delay. See [96] at ¶¶ 28-29. On
December 7, 2011, following plaintiff’s appointment with Dr. Chmell, Wexford approved him
for a referral to Dr. Meija; UIC scheduled an appointment for February 13, 2012, a 68-day delay.
15
See [96] at ¶ 33. On February 13, 2012, after UIC cancelled plaintiff’s appointment with Dr.
Meija, UIC rescheduled the appointment for April 5, 2012, which Wexford was able to
reschedule to March 29, 2012, another 45-day delay. See [96] at ¶ 37. On April 4, 2012,
Wexford approved Dr. Meija’s plan for surgery; UIC scheduled the surgery for April 20, 2012
and then rescheduled for May 12, 2012, a 38-day delay. Thus, 199 days, or roughly six-and-ahalf months of plaintiff’s ten-month wait for surgery, can be attributed to waiting for UIC
appointments.
While in the aggregate these delays could hardly be characterized as “brief,” see Perez,
2015 WL 4092294, at *4, the total 199-day delay is in large part attributable to a series of errors
by UIC which Wexford could not foresee at the time it approved each referral. When approving
the initial November 21, 2011 UIC appointment, plaintiff’s condition was known to be serious,
but no longer emergent, and required a complicated surgery. Dr. Gabriel testified that the injury
required a specialist and was no longer emergent. [96] at ¶¶ 23-24. Thus, the injury was not
“readily treatable” and Wexford was subject to the availability of specialists for plaintiff’s
treatment. See Perez, 2015 WL 4092294, at *8. Dr. Chmell testified that it was reasonable for
plaintiff’s condition to be scheduled on an elective basis and that for any ordinary patient, inmate
or not, “if you called and tried to make an appointment to see me or Dr. Meija, it’d probably be
three or four months ahead of time. . . . I don’t think there was any urgency.” [88-1] at 9-10.
There is evidence in the record that Wexford was aware that “the University of Illinois was
known to have a long wait time to get an appointment[,]” see [90] at 22, but plaintiff has not
claimed that the general existence of Wexford’s referral relationship with UIC is in itself an
unconstitutional policy. Under plaintiff’s particular circumstances, it cannot be said that it was
deliberately indifferent for Wexford to schedule a regular appointment with UIC in a manner that
plaintiff’s specialists testified was reasonable.
Because it was unforeseeable that UIC would assign plaintiff with a knee specialist rather
than an upper extremity hand specialist, Wexford cannot be said to be deliberately indifferent for
plaintiff’s subsequent referral to Dr. Meija, which was scheduled within the “three or four
months” period that Dr. Chmell testified was ordinary and reasonable. See Shields v. Illinois
Dept. of Corrections, 746 F.3d 782, 797 (7th Cir. 2014) (declining to infer deliberate indifference
from mistaken referral where there was “no indication that [defendants] had any involvement in
that mistaken referral, let alone that either one acted with deliberate indifference to [the
plaintiff’s] health in allowing the referral to go forward”). The same holds true for the
rescheduled appointment after UIC cancelled plaintiff’s appointment on the day he was taken to
see Dr. Meija. Moreover, Dr. Chmell testified that the March 29, 2012 appointment with Dr.
Meija represented good timing. [96] at ¶ 39. Finally, Dr. Meija testified that it was reasonable
for plaintiff’s surgery to be scheduled for April 20, 2012, and he suffered no harm as a result of
the surgery being rescheduled to May 12, 2012. [96] at ¶¶ 43-44. Thus, each referral that
Wexford approved represented ordinary and reasonable timing, according to plaintiff’s
specialists. And because Wexford could not foresee the future mistakes of third parties, there is
no point at which it can be said to have been deliberately indifferent for failing to upset plaintiff’s
16
treatment plan and seek new providers. Under these facts, there can be no reasonable inference
of deliberate indifference against Wexford for the UIC delays.
The analysis is different with regard to pre-diagnosis delays. For a period of time
following plaintiff’s original injury, there is at least a genuine dispute that he could have been
treated on an emergent and acute basis. As plaintiff points out in his response to defendants’
statement of facts, by the time of his orthopedic referral, “Dr. Gabriel stated that the surgery
would not need to be done on an emergent basis because it had already been over two months.”
[96] at ¶ 24. Dr. Gabriel testified that he could have treated the fracture on an acute basis if he
saw it soon enough, but would have referred plaintiff to a UIC hand specialist after
approximately one month to six weeks. See [88] at 15. Within this crucial pre-diagnosis period,
plaintiff points to a number of “troubling delays in his treatment” from which a reasonable fact
finder could infer deliberate indifference. See Perez, 2015 WL 4092294, at **5-7 (plaintiff
stated a claim for deliberate indifference where he alleged that delays prevented specialist from
treating plaintiff’s injury on an acute basis, thus prolonging his pain while he waited for followup surgery).
First, plaintiff points to a factual dispute as to when his injury occurred and when he
initially sought treatment. According to plaintiff’s testimony, he was injured on July 11, 2011.
[101] at ¶¶ 9-10. On July 12, 2011, he asked an officer and his supervisor to take him to the
healthcare service for treatment, but was told he would need to sign up for sick call. [97-2] at 78; [101] at ¶ 1. After going to sick call on July 13, 2011, he was seen by Nurse Cady, who
agreed that he had a serious injury and attempted to have him seen by a physician. [97-2] at 18.
However, because the healthcare service was short-staffed for the day (plaintiff’s testimony
suggests that she told him physicians or staff were on vacation), she simply put him on a list to
be seen by a physician in the future. On August 1, 2011, plaintiff returned to sick call, was
recognized by Nurse Cady, and was finally scheduled to see Dr. Dominguez on August 2, 2011.
Construing this factual dispute in favor of plaintiff, as the court is required to do, there was a 20day delay between the time plaintiff initially presented to sick call, with what Nurse Cady agreed
was an obviously serious injury, and when he was ultimately seen by a physician. This delay,
accepting plaintiff’s testimony as true, was attributable to a staffing shortage rather than a
legitimate medical reason. Analogously, in Perez the Seventh Circuit found that an allegation
“that Wexford maintained a policy or practice of not having a full-time doctor stationed at the
prison at all times” stated a claim for deliberate indifference against Wexford because it was
“capable of causing delays in treatment . . . which could result in a constitutional deprivation[.]”
See Perez, 2015 WL 4092294, at *7.
Second, the parties’ statements of facts and supporting attachments reveal that after Dr.
Dominguez ordered x-rays on August 2, 2011, no Wexford physician reviewed the results until
August 10, 2011, despite a report being completed by an outside radiology group on August 3,
2011. Dr. Dominguez testified that Wexford’s policy at the time was that “the medical director
got all the x-rays and lab reports” which could at times cause delays in treatment if the medical
director was unavailable on the day that the x-ray results became available. [87-2] at 15. The
17
Seventh Circuit has held that delays related to x-rays do not necessarily constitute deliberate
indifference. See, e.g. Davis v. Samalio, 286 F. App’x. 325, 328 (7th Cir. 2008) (prison officials
were not liable for eight-day delay in procuring second round of x-rays where there was no
evidence that the delay was a product of deliberate indifference on the part of the officials).
Construing the immediate facts in the light most favorable to plaintiff, however, the 7-day delay
in reading the already prepared x-ray report can be attributed to an express Wexford policy which
a Wexford physician testified could cause unnecessary delays in treatment.
Finally, as part of his claim that Wexford had a widespread practice of condoning
scheduling delays, plaintiff points to the 14-day delay between September 13, 2011, when
Wexford approved Dr. Funk’s “urgent” orthopedic referral, and plaintiff’s actual appointment
with Dr. Gabriel on September 17, 2011. This multi-week waiting period occurred during a time
when it was still unclear whether plaintiff’s condition could be treated on an emergent basis.
Analogously, in Perez, the Seventh Circuit found that a plaintiff stated a claim for deliberate
indifference where he had to wait four days between his prison physician’s realization that his
injury “required the care of a specialist” and the referral itself, at which time the injury could no
longer be treated acutely. See Perez, 2015 WL 4092294, at *7. However, the analysis does not
end there. While the court finds that there is a genuine dispute as to whether this delay was
unconstitutionally lengthy in light of plaintiff’s circumstances, it is nonetheless a close question
whether plaintiff has set forth sufficient evidence to infer a widespread practice of condoning
scheduling delays. The Seventh Circuit has cautioned that, at the summary judgment stage,
“isolated incidents do not add up to a pattern of behavior that would support an inference of a
custom or policy, as required to find that Wexford as an institution/corporation was deliberately
indifferent to [the plaintiff’s] needs.” Shields, 746 F.3d at 796. On the one hand, plaintiff claims
a widespread practice by pointing to this occurrence as one of several incidents in which
Wexford condoned lengthy wait times scheduled by outside providers. On the other hand, this is
the only act of “condoning” a scheduling delay that the court finds was arguably unconstitutional
as applied to plaintiff’s circumstances. Plaintiff’s contention that all the scheduling delays were
unconstitutional may explain why there appears to have been little discovery as to whether this
multiple-week delay for an “urgent” referral was part of a wider pattern or practice. In light of
the court’s findings, plaintiff may seek leave to reopen discovery on this limited basis and thus
summary judgment on this issue would, at this time, be premature.
Thus, plaintiff has pointed to a series of delays, totaling 41 days, which were arguably
attributable to Wexford’s deliberately indifferent policies and practices. The Seventh Circuit has
held that a prisoner who complains that a delay in treatment was deliberately indifferent must
point to some medical evidence in the record that the delay was detrimental. See Walker, 293
F.3d at 1038 (citing Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir.1996)); see also Davis, 286
F. App’x. at 328 (plaintiff presented no evidence that delay in procuring x-rays caused him
harm). Here, under plaintiff’s version of the facts, he waited 78 days after his July 11th injury
before finally being seen by Dr. Gabriel on September 27th. He has identified a factual dispute
as to whether as much as 41 of those days were attributable to Wexford’s deliberately indifferent
policies and practices, including failure to maintain adequate staffing levels during sick call, a
18
policy of requiring the medical director to review all x-ray reports, and a practice of condoning
multi-week delays for urgent referrals. Under Perez, it is sufficient that these delays were
directly responsible for 41 days of unnecessary prolonged pain and suffering. Perez, 2015 WL
4092294, at *4 (“In some cases, even brief, unexplained delays in treatment may constitute
deliberate indifference.”) (citing Cooper v. Casey, 97 F.3d 914, 917 (7th Cir.1996) (“whether the
plaintiffs were in sufficient pain to entitle them to pain medication within the first 48 hours after
the beating” presented question for jury)). Perhaps even more importantly, the remaining 37 days
are within the month-to-six-weeks period that Dr. Gabriel testified was the outside range in
which he might still have been able to treat the injury on an acute basis; this raises the possibility
that absent Wexford’s policies and practices, plaintiff could have avoided the seven-and-a-half
month delay and prolonged pain, discomfort, and disability between Dr. Gabriel’s diagnosis and
his surgery.4
Because plaintiff has raised a genuine issue of fact as to whether Wexford’s policies and
practices caused “unacceptable” delays which both directly prolonged his pain and potentially
precluded Dr. Gabriel from treating plaintiff on an acute and emergent basis, defendants’ motion
for summary judgment [86] is denied with regard to his claims against Wexford pertaining to
pre-diagnosis delays. See Perez, 2015 WL 4092294, at *5. Plaintiff has failed to raise a genuine
issue of material fact as to the remainder of his claims against Wexford, Dr. Dominguez, and Dr.
Funk, and defendants’ motion for summary judgment [86] is granted with respect to those
claims. The parties are directed to contact Magistrate Judge Iain Johnston’s chambers by August
24, 2015 to arrange for a settlement conference with regard to the remaining claims.
Date: 7/28/2015
ENTER:
United States District Court Judge
Electronic Notices. (LC)
4
Plaintiff also points to testimony from Dr. Meija that the continued numbness he
suffered after his injury could potentially have been related to the lengthy delay between the
injury and surgery. See [96] at ¶¶ 45-54; [101] at ¶¶ 27-33. While not dispositive, this raises a
further factual dispute as to the impact that the delay had on plaintiff’s injury and recovery.
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?