Almond v. Wexford Health Source, Inc. et al

Filing 165

MEMORANDUM Opinion and Order. Defendants' motion for summary judgment 148 is granted in part and denied in part. Claims of deliberate indifference are dismissed as against Dr. Garcia and Wexford, but claims against Dr. Dominguez and Dr. Wahl s urvive this motion. Plaintiff's malpractice claims are dismissed without prejudice to renewal if he promptly supplements the record. The parties are encouraged to discuss settlement. A telephone status conference is set for January 30, 2020 at 8:30 a.m. Parties are directed to call this court's chambers' number on the date of the status conference. Signed by the Honorable Rebecca R. Pallmeyer on 1/9/2020. Notice mailed by judge's staff (ntf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHARLES ALMOND,
Plaintiff,
v.
WEXFORD HEALTH SOURCE, INC.,
a Pennsylvania Corporation, JILL
WAHL, M.D., BESSIE DOMINGUEZ, M.D.
HECTOR GARCIA, M.D., DONALD
ENLOE, and ASSISTANT WARDEN
FASANO,
Defendants.

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No. 3:15 C 50291
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff Charles Almond, a prisoner in the custody of the Illinois Department of
Corrections, suffered a serious knee injury in 2013, while Almond was incarcerated at the Dixon
Correctional Center ("DCC"). The injury went undiagnosed for some time, and after nearly two
years, Mr. Almond underwent surgery to repair his knee. On November 20, 2015, Almond filed
this action against Wexford Health Services, a private firm that provides health care services to
inmates at DCC, and against three physicians—Dr. Dominguez, Dr. Wahl, and Dr. Garcia—
alleging that the 22-month delay in treatment violated his Eighth Amendment rights. He also
asserts a state law claim of medical malpractice. Defendants move for summary judgment in their
favor on all of Almond’s claims. For the reasons stated here, the motion is granted in part and
denied in part.
BACKGROUND
Although represented by counsel, Plaintiff did not comply fully with the Local Rules
direction that he provide a concise response to the movant's statement of undisputed facts. N.D.
Ill. R. 56.1(b)(3). Instead, Plaintiff submitted his own statement of facts, which contradicts that of
Defendants in many respects. The parties’ competing statements support the following account.

The injury that gave rise to this suit occurred on May 16, 2013, when Mr. Almond tripped
and fell while running in the prison yard. (DSUF ¶ 6; PSUF ¶ 2.) Mr. Almond walked back to his
cell where he remained for the rest of the day. (DSUF ¶ 6-7; PSUF ¶ 2-3.) The next day, Mr.
Almond reported to his job in the kitchen, but complained of knee pain and was sent to the
healthcare unit, where he was seen by a nurse who gave him an ACE bandage, pain medication
(Tylenol or Motrin), and crutches that, according to Plaintiff, lacked any cushions. (DSUF ¶ 8;
PSUF ¶ 4.)
On May 18, Mr. Almond returned to the healthcare unit, where a nurse gave him a "lay-in"
order, allowing Almond to remain in his housing unit, and prescribed Motrin for his knee pain.
(DSUF ¶ 10; PSUF ¶ 4.) On May 21, Mrs. Colgan-Valdez, a Physician's Assistant (P.A.) at DCC,
examined Plaintiff's knee, performing Thrower and Lachman's tests to check for knee ligament
damage1; she concluded that neither test revealed knee ligament damage. (DSUF ¶ 11.) Neither
the Thrower nor Lachman exams test for a quadricep tendon injury. (Dominguez Dep. 45:1-46:19,
Nov. 7, 2018, [149-3].) P.A. Valdez ordered Motrin, and an Ace bandage, but discontinued the
authorization for the use of crutches. (DSUF ¶ 12.) An x-ray taken the following day showed that
revealed only “mild osteoarthritis and mild effusion” in Almond’s knee, similar to normal wear and
tear on joints. (DSUF ¶ 13, 18; Dominguez Dep. 42:11-23.) On May 31, Almond returned to the
healthcare unit and was again examined by P.A. Valdez. (DSUF ¶ 14; PSUF ¶ 6.) The parties
disagree on whether there was any improvement in Almond’s knee at this point, but P.A. Valdez
prescribed Naproxen and Motrin. (DSUF ¶ 14; PSUF ¶ 6.)

1

Defendants did not shed light on either of these tests, but the court understands
that the Lachman test is used to determine the nature and degree of ligament damage. See
Edward P. Mulligan, et al, The Reliability and Diagnostic Accuracy of Assessing the Translation
Endpoint During the Lachman Test, 2015 Int'l J. Sports Phys Therapy, 10(1): 52–61 (Feb. 2015)
(available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4325288/) (last visited January 8,
2020).

2

Plaintiff continued to complain about his knee and request to see a doctor. On June 21,
Almond was seen for the first time by Dr. Bessie Dominguez, a physician employed by Wexford
Health Services, Inc.2 (Wexford) and working at the DCC. (DSUF ¶ 3, 15-18; PSUF ¶ 8.) Dr.
Dominguez noted swelling and a decreased range of motion in Plaintiff's knee, but she did not
find any knots or hollowness above the knee (the typical signs of a quadricep tendon rupture).
(DSUF ¶ 17.) She again prescribed Naproxen and Motrin and gave Almond a low bunk permit.
(DSUF ¶ 15-18; PSUF ¶ 8; Dominguez Dep. 110:21-111:3.) Still experiencing pain in his right
knee, Mr. Almond returned to the healthcare unit on July 15 and again saw Dr. Dominguez.
(DSUF ¶ 20-22; PSUF ¶ 9-11.) Almond did not appear to be limping, and Dr. Dominguez again
did not find knots or hollowness about the knee, but she noted that the knee was still swollen, and
prescribed Prednisone and Motrin. (DSUF ¶ 20, 22.)
One month later, on August 15, Almond saw Dr. Dominguez for a third time, still
complaining of pain in his knee. (DSUF ¶ 23-27; PSUF ¶ 12.) Dr. Dominguez was concerned
about the continued swelling of the knee but did not suspect a tear in his quadricep tendon; rather,
based on the prior x-ray and the chronic condition of the injury, she diagnosed Almond as suffering
from right knee osteoarthritis with mild effusion. She prescribed Naprosyn and extended Mr.
Almond's low bunk permit for an additional six months. (DSUF ¶ 24-26.)
Dr. Dominguez next saw Mr. Almond on August 28, when Plaintiff reported to the
healthcare clinic after he discovered a "knot" or "lump" above his right knee. (DSUF ¶ 28-30;
PSUF ¶ 13.) Dr. Dominguez examined the knee, and for the first time noted a "hollow area" above
Plaintiff’s right knee, leading the doctor to suspect, for the first time, that Mr. Almond may have
ruptured his tendon. (DSUF ¶ 29; PSUF ¶ 13.) Wexford Health Sources, Inc. has a policy that,
for non-emergency situations, a physician seeking to refer a prisoner for treatment off-site must
first request a “collegial review,” in which the Wexford utilization review management doctor

2

Wexford Health Sources, Inc. is a private contractor providing healthcare services
to Illinois prisons. (DSUF ¶ 5).
3

confers with the local medical director at the prison (in this case, Dr. Jill Wahl) to assess whether
an off-site referral is warranted. (DSUF ¶ 39; PSUF ¶ 14.) Consistent with that policy, Dr.
Dominguez requested a collegial review of her proposal that Plaintiff receive an off-site MRI and
examination by an orthopedic specialist at the University of Illinois Chicago (“UIC”) Hospital.
(DSUF ¶ 30; PSUF ¶ 13.) Dr. Dominguez also ordered another x-ray of the knee and instructed
Mr. Almond to apply an Ace bandage. (DSUF ¶ 30.)
On September 6, Dr. Dominguez saw Mr. Almond for a follow-up on his x-ray. (DSUF
¶ 31-33.) Dr. Dominguez noted in Mr. Almond’s medical file that the mass above his knee
appeared "much improved."

(DSUF ¶ 32).

She prescribed additional anti-inflammatory

medication and a muscle relaxant and advised Mr. Almond that the request for an off-site visit
had been submitted. (DSUF ¶ 33.) In response to Dr. Dominguez's request for a collegial review,
on September 12, Dr. Wahl, the local medical director at DCC, examined Mr. Almond. (DSUF
¶ 34-37; PSUF ¶ 14.) Dr. Wahl observed an indentation, or a dip, above Plaintiff's right knee and
suspected a torn quadricep tendon.

(DSUF ¶ 36-37; PSUF ¶ 14.)

Two weeks later, on

September 25, Dr. Wahl held a collegial review with Dr. Garcia, a doctor from Wexford's utilization
review management department. (DSUF ¶ 40-41; PSUF ¶ 15-16.) Both parties agree that on
September 25, Dr. Garcia had not personally examined Mr. Almond and was not informed of the
suspected quadricep tear. (DSUF ¶ 38, 40; PSUF ¶ 15-16.) Dr. Garcia denied the request for an
MRI and orthopedic exam, choosing instead to focus on treatment that was available on-site.
(DSUF ¶ 40-41; PSUF ¶ 15.)
On October 15, Dr. Wahl saw Mr. Almond and advised him that the request for an MRI
and off-site visit was denied but that she planned to appeal that decision and also to request an
ultrasound. (DSUF ¶ 42; PSUF ¶ 17.) Dr. Wahl also directed that Plaintiff undergo physical
therapy. (DSUF ¶ 43.) The next day, October 16, Dr. Wahl and Dr. Garcia conducted another
collegial review, this time a phone conference to review Dr. Wahl's request for an MRI or
ultrasound of the knee. (DSUF ¶ 44; PSUF ¶ 17.) Dr. Garcia agreed that further testing was
4

appropriate, and approved the request for an ultrasound, which could be done on-site. (DSUF
¶ 44; PSUF ¶ 17.) A month later, on November 13, Mr. Almond underwent an on-site ultrasound,
which showed a possible tendon tear of Almond’s right quadricep.

(DSUF ¶ 46; PSUF ¶ 18.)

Based on this test, on November 27, Dr. Wahl appealed the September 25 denial of the request
for an off-site MRI and orthopedic examination. (DSUF ¶ 48; PSUF ¶ 18.) Dr. Neil Fisher, a
Wexford physician, reviewed the appeal and approved the request for an off-site MRI and
orthopedic consult at UIC. (DSUF ¶ 48; PSUF ¶ 18.) Once an off-site referral is granted, the offsite facility handles scheduling; Defendants assert, and Plaintiff does not challenge, that Wexford
employees have no control over the off-site MRI scheduling. (DSUF ¶ 50-51.)
On March 7, 2014, nearly five months after the request was approved, Dr. Amir El Shami,
an orthopedic specialist at UIC, examined Mr. Almond's knee. (DSUF ¶ 52-55; PSUF ¶ 19-20.)
Dr. El Shami diagnosed a chronic right quadricep tendon rupture, recommended an MRI and
surgery by an orthopedic surgeon, and ordered a different knee brace for Mr. Almond. (DSUF
¶ 55; PSUF ¶ 19-20.) Back at the DCC, on March 20, Dr. Wahl saw Mr. Almond for a follow-up
after his off-site examination. (DSUF ¶ 56.) Dr. Wahl noted Dr. El Shami's recommendation for
an MRI and an orthopedic surgeon consultation, and filed a request for another collegial review
to approve that recommendation. (DSUF ¶ 56.) Dr. Fisher approved the request on March 26.
(DSUF ¶ 57). After some scheduling delays occasioned by UIC, staff there performed an MRI on
May 20; the MRI confirmed Dr. El Shami's assessment of a chronic partial rupture of his right
quadricep tendon. (DSUF ¶¶ 58, 60; PSUF ¶ 21.)
Almond nevertheless received no further treatment until October 7, when he was again
taken to UIC to see Dr. El Shami, “by mistake,” according to the doctor’s notes. (DSUF ¶ 62;
PSUF ¶ 22.) Dr. El Shami confirmed his initial assessment and again referred Mr. Almond to a
surgeon. (DSUF ¶ 62; PSUF ¶ 22.) Finally, on January 22, 2015, Dr. Samuel Chmell, an
orthopedic surgeon at UIC, examined Plaintiff’s right knee and confirmed the need for
reconstructive surgery. (DSUF ¶ 63; PSUF ¶ 24.) On March 3, approximately twenty-two months

5

after the May 16, 2013 injury, Dr. Chmell successfully operated on Plaintiff's right knee and set it
in a cast. (DSUF ¶ 64; PSUF ¶ 24.) Almond saw Dr. Chmell for a post operation evaluation on
March 9 and then again in June and October. (DSUF ¶ 65-68; PSUF ¶ 25-27.) At some point
prior to the October appointment, the cast was removed and Plaintiff began physical therapy.
(DSUF ¶ 67.)
On November 20, 2015, he filed this complaint, alleging that Wexford violated 42 U.S.C.
§ 1983 by maintaining a policy of deliberate indifference to serious injuries, and that Wexford’s
physician employees exhibited deliberate indifference towards Plaintiff’s knee injury.3 Plaintiff
also brought a claim for medical negligence based on the treatment he received for his knee
injury. Defendants Dr. Garcia, Dr. Dominguez, Dr. Wahl, and Wexford now move for summary
judgment.
DISCUSSION
I.

Legal Standard
Summary judgment is appropriate if there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A genuine
dispute of material fact exists if "the evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986). The party moving for summary judgment bears the burden of proving
the absence of such a dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986). If the movant meets that burden, the nonmoving party then bears the
burden to demonstrate that there is a genuine dispute of material fact, "such that a reasonable
jury could return a verdict in her favor." Gordon v. FedEx Freight, Inc., 674 F.3d 769, 773 (7th
Cir. 2012). The burden on the nonmovant "is not onerous," Liu v. T & H Mach., Inc., 191 F.3d

3

Plaintiff’s Second Amended Complaint also included Dr. Louis Shicker who was
the Illinois Department of Corrections Medical Director and Charles Fasano, the Assistant Warden
at the DCC, as defendants. The claims against Dr. Shicker and Mr. Fasano were subsequently
dismissed. See June 22, 2017 Order [97]; February 26, 2018 Order [127].
6

790, 796 (7th Cir. 1999), and the court "construe[s] all facts and reasonable inferences in favor of
the nonmoving party." Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). To defeat the
motion, however, the non-moving party must be able to point to more than the "mere existence
of a scintilla of evidence in support of" his position. Liu, 191 F.3d at 796.
II.

Statute of Limitations
Defendants argue, first, that Plaintiff's claims against Dr. Garcia and Dr. Dominguez are

time-barred: Dr. Garcia was involved in treating Plaintiff on just two occasions, the last one being
October 16, 2013. Dr. Dominguez was last involved in treating Plaintiff on September 6, 2013.
Because Plaintiff’s complaint was not filed until November 20, 2015, well more than two years
after they last treated Plaintiff, Defendants Garcia and Dominguez contend they are entitled to
dismissal.
Section 1983 claims filed in Illinois are subject to a two-year statute of limitations, Tobey v.
Chibucos, 890 F.3d 634, 645 (7th Cir. 2018), triggered “when the plaintiff knows or has reason to
know of the injury that is the basis of his action." Devbrow v. Kalu, 705 F.3d 765, 769 (7th Cir.
2013) (quoting Sellars v. Perry, 80 F.3d 243, 245 (7th Cir. 1996)). A plaintiff learns of his injury
and its cause when he is diagnosed. Id. The Seventh Circuit has also recognized that "when the
violation of the plaintiff's constitutional rights is a continuing one, the statute of limitations does
not start to run any earlier than the last day of the ongoing injury." Devbrow, 705 F.3d at 770
(citing Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001)). Under the continuing violation
doctrine, the claim accrues "as long as the defendants had the power to do something about" it.
Heard, 253 F.3d at 318.
Defendants argue that the cause of action here accrued when Dr. Dominguez and Dr.
Garcia were last involved in treating Plaintiff—on September 6 and October 6, 2013,
respectively—but the court is not able to make that determination as a matter of law. A plaintiff
learns of his claim at the time he is diagnosed, but here the record is not clear as to when that
happened. On August 28, 2013, Dr. Dominguez noted for the first time that she suspected a torn

7

quadricep and then requested an off-site referral for Mr. Almond. (DSUF ¶ 29; PSUF ¶ 13.) She
evidently did not communicate her suspicion to Dr. Garcia, however, and he denied the request.
Then, on November 13, 2013, an ultrasound showed a possible tear, but there is no evidence
that anyone disclosed the results to Plaintiff at that time. (DSUF ¶ 46; PSUF ¶ 18.) On November
27, 2013, Dr. Wahl told Mr. Almond that the request for an off-site referral was approved, but that
does not constitute communicating a diagnosis. See Pl's Dep. 55:20-56:6, April 18, 2018 [1491]. Viewing the record in the light most favorable to Plaintiff on this issue, as the court must at
this stage, Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010), he did not learn of his diagnosis
until he saw Dr. El Shami on March 7, 2014. (DSUF ¶ 55; PSUF ¶ 19.) His complaint, filed on
November 20, 2015, falls within the two-year statute of limitations.
III.

Section 1983 Claim of Deliberate Indifference
"[T]he Eighth Amendment's proscription against cruel and unusual punishment [ ]

impos[es] a duty upon the States, through the Fourteenth Amendment, 'to provide adequate
medical care to incarcerated individuals.'" Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir.
2006) (quoting Boyce v. Moore, 314 F.3d 884, 888-89 (7th Cir. 2002)). In considering claims
under the Eighth Amendment relating to medical treatment, the court will “perform a two-step
analysis, first examining whether a plaintiff suffered from an objectively serious medical condition,
and then determining whether the individual defendant was deliberately indifferent to that
condition." Petties v. Carter, 836 F.3d 722, 727-28 (7th Cir. 2016). Deliberate indifference is a
"subjective standard" requiring a showing that defendants have "know[n] of the serious risk to the
prisoner's health . . . and . . . [have] also consciously disregard[ed] that risk/need so as to inflict
cruel and unusual punishment on the prisoner." Johnson, 433 F.3d at 1010 (quoting Farmer v.
Brennan, 511 U.S. 825, 837-38, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)). The Seventh Circuit
has described deliberate indifference as "intentional or reckless conduct, not mere negligence."
Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010).

8

Defendants in this case do not dispute that Almond’s ruptured quadricep tendon
constitutes an objectively serious medical condition. See Pyles v. Fahim, 771 F.3d 403, 411 (7th
Cir. 2014). They do, however, argue that the evidence does not support a finding of deliberate
indifference on the part of any of the individual Defendants. The court addresses the evidence
as against each of the Defendants below.
a.

Dr. Dominguez

Dr. Bessie Dominguez is the physician who first saw Plaintiff regarding his knee pain.
Though Almond alleges he suffered his injury on May 16, 2013, he did not see Dr. Dominguez
until June 21, after four visits with the nurse and P.A.s. (The month-plus delay in seeing a
physician is part of Plaintiff’s claim that the alleged constitutional violation is a product of Wexford
policy. Pl.'s Second Amended Complaint, ¶34 [1].)
Plaintiff claims that during his first visit, Dr. Dominguez was "preoccupied” and denied his
requests for an off-site evaluation of his knee. (PSUF ¶ 8.) Apart from her alleged demeanor,
however, Plaintiff offers no evidence that he was deliberately indifferent to his complaints. To the
contrary, Dr. Dominguez testified that on June 21 she examined Mr. Almond, and noted no knots
or hollowness above his right knee. Dominguez Dep. 110:21-111:3. Dr. Dominguez has treated
patients with quadricep tendon tears and knows that knots or hollowness above the knee are
indicative of such tears, but she ruled out the possibility of a quadricep tear when she examined
Plaintiff and instead provided him with pain medication. (DSUF ¶ 17.) Plaintiff may have
disagreed with Dr. Dominguez's treatment plan, but this does not establish deliberate indifference.
Berry, 604 F.3d at 441 ("Neither medical malpractice nor mere disagreement with a doctor's
medical judgment is enough to prove deliberate indifference in violation of the Eighth
Amendment."). Nor is the court troubled by Dr. Dominguez's failure to diagnose a quadricep
tendon tear. The board-certified orthopedic surgeon who eventually performed the surgery on
Almond testified that it would take a trained eye like his three to six months to diagnose this type
of injury. Chmell Dep. 37:7-13, July 19, 2018, [149-6]. In any event, any failure to diagnose the

9

tear in the first consultation would amount, at worst, to malpractice, which again falls below the
threshold of deliberate indifference. Berry, 604 F.3d at 441.
When Plaintiff next saw Dr. Dominguez, on July 15, 2013, she again examined his knee,
again found no knots or hollowness, and still did not suspect a quadricep tear. (DSUF ¶ 22.) She
prescribed additional medication to help with the pain and swelling and scheduled a follow-up
appointment in a month. At his third visit, on August 15, 2013, Plaintiff’s knee remained swollen
and painful. This generated concern for Dr. Dominguez, who began to suspect arthritis or an
infection as the cause of his pain. Based on the x-ray taken at the time of the injury and the
ongoing pain, Dr. Dominguez diagnosed Almond as suffering from osteoarthritis with mild effusion
and prescribed medication to help with this condition.

Again, this evidence—that Plaintiff

disagreed with the doctor’s medical judgment, or believes her failure to diagnose a tear was
negligent—does not support a finding of deliberate indifference. Berry, 604 F.3d at 441.
On August 28, 2013, Dr. Dominguez saw Almond again, and for the first time observed a
hollow area above the knee, an indication of a possible ruptured tendon in Plaintiff's knee. The
parties agree that this was the first time that Dr. Dominguez suspected a quadricep tear. (DSUF
¶ 22; PSUF ¶ 13.) Plaintiff contends this suspicion should have resulted in prompt treatment. Pl's
Response to Defendant's Motion for Summary Judgment, 7 [157]. Instead, Dr. Dominguez filed
a request for a referral with an off-site specialist, adhering to Wexford’s policy requiring “collegial
review” before sending an inmate to an off-site facility for treatment in non-emergency situations.
To establish that this decision violated the Eighth Amendment, Plaintiff must present evidence
from which a reasonable jury could find that Dr. Dominguez “[knew] of and disregard[ed] an
excessive risk to [his] health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw
the inference." Farmer, 511 U.S. at 837. Whether Dr. Dominguez’s failure to take more prompt
action constitutes deliberate indifference is a close question, but the court concludes it is one for

10

a jury to decide. See Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000) ("Whether a prison
employee acted with deliberate indifference presents a question of fact.").
In Petties v. Carter, an inmate suffered a ruptured Achilles tendon in January, underwent
an MRI in March, and saw an off-site specialist in July. 836 F.3d at 726-27. The prisoner later
brought a § 1983 claim against the prison medical staff for deliberate indifference, and the trial
court entered summary judgment for the defendants. Id. at 727. The Seventh Circuit reversed,
finding material questions of fact precluding summary judgment. Id. at 731-33. Specifically, the
court noted that the doctor's decision not to view the ruptured tendon as an emergency and refusal
to send the inmate to the emergency room to obtain an MRI, which prolonged the inmate's pain,
generated a question for the jury about whether the doctor demonstrated deliberate indifference.
Id. at 733.
Here, similarly, a reasonable jury could find that when faced with a suspect tendon rupture,
Dr. Dominguez acted with deliberate indifference in submitting an internal request for an off-site
visit, a request that took nearly a month to process. Her decision not to process the situation as
an emergency may have been a reasonable step; but the jury may also conclude that it caused
unnecessary and unreasonable delay in arranging for proper treatment. Summary judgment is
denied as to Dr. Dominguez.
b.

Dr. Wahl

Dr. Wahl, who was the local medical director at DCC in 2013, first saw Almond on
September 12, in response to Dr. Dominguez’s request for a collegial review. Dr. Wahl knew of
the suspected quadricep tear, and indeed herself observed the "indentation or dip" above the right
knee that is a common symptom of a quadricep tendon rupture. (DSUF ¶ 36-37; PSUF ¶ 14.)
Like Dr. Dominguez, Dr. Wahl did not perceive this injury to be an emergency. As in Petties, the
court concludes that a jury must decide whether Dr. Wahl’s failure to refer Almond for prompt
treatment constitutes deliberate indifference. 836 F.3d at 733.

11

Dr. Wahl continued treating Plaintiff for his knee injury, and after Dr. Garcia denied a
request for an offsite evaluation on September 25, the record shows that Dr. Wahl disagreed and
advised Almond that she planned to appeal the denial. (DSUF ¶ 38, 40; PSUF ¶ 15-16.) Dr.
Wahl’s disagreement supports the inference that she was aware of the serious nature of Plaintiff’s
condition; because she at all times had the option of sending him to the emergency room, a
reasonable jury could find that her decision to follow Wexford's internal policy of seeking approval
for off-site treatment contributed to the delay in Almond’s treatment. The court notes, in particular,
that after the denial of the first request for an MRI, Dr. Wahl submitted another request for a
collegial review, this time asking for an MRI or ultrasound. (DSUF ¶ 44; PSUF ¶ 17.) Dr. Garcia
approved the ultrasound, which could be done on-site and could also confirm the injury. (DSUF
¶ 44-45; PSUF ¶ 17.) Yet after the November 2013 ultrasound confirmed the quadricep tendon
rupture, Dr. Wahl nevertheless appealed the prior request, again asking for approval to obtain an
MRI which Almond did not receive for almost seven months and which apparently did nothing
more than confirm the ultrasound findings. (DSUF ¶ 48; PSUF ¶ 18). The delay in getting the
MRI and proceeding with treatment may support a finding of deliberate indifference.
True, a physician's decision not to send a patient to see an off-site specialist is ordinarily
viewed as an exercise of medical judgment, not a constitutional violation. But such a decision
may support a finding of deliberate indifference if it is blatantly inappropriate. Pyles, 771 F.3d at
411 (internal quotation marks omitted). In Pyles, the Seventh Circuit explained that "if the need
for specialized expertise either was known by the treating physicians or would have been obvious
to a lay person, then the 'obdurate refusal' to engage specialists permits an inference that a
medical provider was deliberately indifferent to the inmate's condition.” Id. at 412. Here, Dr. Wahl
suspected a quadricep tendon rupture yet decided not to send Mr. Almond for immediate imaging
or to see a specialist, but instead engaged in a course of treatment that prolonged the ultimate
surgery that Plaintiff needed. Berry, 604 F.3d at 441 ("A significant delay in effective medical
treatment also may support a claim of deliberate indifference, especially where the result is

12

prolonged and unnecessary pain."); Petties, 836 F.3d at 730 ("[A]nother type of evidence that can
support an inference of deliberate indifference is an inexplicable delay in treatment which serves
no penological interest.") 4 Plaintiff notes, further, that Dr. Wahl failed to comply with the postoperation recommendation that Almond return for a follow-up appointment after four weeks. Cf.
Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999) (holding that failure to follow a specialist's
advice can amount to deliberate indifference). As Defendants see things, Dr. Wahl "provided
Plaintiff with palliative and therapeutic treatment on-site at the Dixon Correctional Center—actions
which are literally the antithesis of deliberate indifference." Def.'s Memorandum of Law in Support
of Motion for Summary Judgment, 16 [153]. That Dr. Wahl provided some care does not by itself
defeat an Eighth Amendment claim, however. See Petties, 836 F.3d at 729-30 ("Another situation
that might establish a departure from minimally competent medical judgment is where a prison
official persists in a course of treatment known to be ineffective."). Summary judgment is denied
as to Dr. Wahl.
c.

Dr. Garcia

Dr. Garcia's involvement with Almond's care is limited to two collegial reviews. The first,
on September 25, 2013, related to Dr. Dominguez’ request for authorization of an off-site MRI
and consultation with an orthopedist at UIC. Dr. Garcia denied that request and, for the reasons
explained earlier, there appears to be material dispute about whether that denial constituted
deliberate indifference. There is no indication in the record, however, that Dr. Garcia was aware
of the suspected quadricep tendon rupture. (DSUF ¶ 40; PSUF ¶ 15; Garcia Dep. 30:7-10, Oct.

4

The court declines to make findings concerning the appropriate treatment for
Plaintiff’s injury, but notes that some authority suggests the value of prompt treatment. See
Subhadra Nori, Quadriceps Tendon Rupture, J Family Med Prim Care, 2018 Jan-Feb; 7(1): 257–
260 (available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5958582/) (last visited
January 8, 2020) ("For complete ruptures, open repair and reconstruction is required. Early repair
is recommended to avoid retraction and atrophy of quad muscle. . . . Early diagnosis and prompt
repair is crucial, to obtain optimal results.").
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31, 2018, [149-2].) Indeed, Plaintiff has conceded as much, effectively acknowledging he cannot
establish the subjective component of a claim of deliberate indifference on Dr. Garcia’s part.
The second collegial review occurred on October 16, 2013, when Dr. Wahl requested an
MRI or ultrasound. Dr. Garcia denied authorization for an MRI, but did approve ultrasound. Dr.
Garcia was involved once more in the treatment of Mr. Almond, when he attended another
collegial review on October 16, 2013. This time, the collegial request, from Dr. Wahl, was for an
MRI or ultrasound. Dr. Garcia denied the MRI, but approved an ultrasound. To the extent Almond
challenges that decision, his challenge amounts to no more than a disagreement with a medical
opinion. See Pyles v. Fahim, 771 F.3d at 411 ("An MRI is simply a diagnostic tool, and the decision
to forego diagnostic tests is 'a classic example of a matter for medical judgment.'" (quoting
Estelle v. Gamble, 429 U.S. 97, 107, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)). "A medical
professional is entitled to deference in treatment decisions unless no minimally competent
professional would have so responded under those circumstances." Sain v. Wood, 512 F.3d 886,
894-95 (7th Cir. 2008) (citations omitted). Dr. Wahl asked for approval to conduct either an
ultrasound or an MRI, to confirm her suspicion of a quadricep tendon rupture, and Dr. Garcia
approved the ultrasound request. As two “minimally competent professionals” agreed that an
ultrasound was sufficient to determine the scope of the injury the court is satisfied that denial of
an MRI did not amount to a constitutional violation. Summary judgment is granted as to Dr.
Garcia.
d.

Monell Claim against Wexford

Courts in this district generally hold a private corporation that provides municipal services
liable for constitutional violations only if caused by (1) an express policy, (2) a widespread custom
or practice, or (3) a decision by someone with final policy-making authority. Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Pittman ex rel.

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Hamilton v. Cty. of Madison, 746 F.3d 766, 780 (7th Cir. 2014); Valentino v. Vill. of S. Chicago
Heights, 575 F.3d 664, 674 (7th Cir. 2009).5
Plaintiff here has alleged the existence of a "wide spread practice" of failing to provide
adequate healthcare at DCC. Pl.'s Second Amendment Complaint, ¶ 34 [66]. But Plaintiff has
not produced any evidence of such a practice beyond the circumstances of his own right knee
injury. One instance of deliberate indifference is not enough to support Monell liability resting on
a practice or policy. Thomas v. Cook Cty. Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2009)
("[T]here is no clear consensus as to how frequently such conduct must occur to impose Monell
liability, except that it must be more than one instance, or even three . . . ." (citations omitted));
Cosby v. Ward, 843 F.2d 967, 983 (7th Cir. 1988) ("There is no clear consensus among the courts
as to what level of frequency of the challenged conduct evidences a custom, except that it must
be more than one instance."). At minimum, the Plaintiff must show that "there is a policy at issue
rather than a random event." Thomas, 604 F.3d at 303.
Plaintiff Almond has presented evidence of what he deems less-than-acceptable care for
his knee injury. He has not offered evidence supporting the inference that this is an ongoing
practice rather than an isolated incident. Summary judgment is granted as to Wexford.
IV.

Medical Malpractice Claims
Plaintiff did not respond to Defendants’ argument for summary judgment on the medical

malpractice claim. He has, thus, effectively admitted facts on which that argument is based.
Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir. 2015). More importantly, Plaintiff has not
presented expert testimony establishing the proper standard of care and its alleged breach by
Defendants, as required by Illinois law. See Tierney v. Cmty. Mem'l Gen. Hosp., 268 Ill. App. 3d

5

The Monell doctrine is held to shield private corporations that perform government
functions, but the Seventh Circuit has observed that there are “substantial grounds to question
the extension of the Monell holding for municipalities to private corporations.” See Shields v.
Illinois Dep't of Corr., 746 F.3d 782, 790–96 (7th Cir. 2014); see also Pindak v. Dart, 125 F. Supp.
3d 720, 764–65 (N.D. Ill. 2015).
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1050, 1058, 206 Ill. Dec. 279, 285, 645 N.E.2d 284, 290 (1st Dist. 1994) ("Expert testimony is
required to support a charge of medical malpractice because the assessment of the alleged
negligence typically requires knowledge, skill, or training in a technical area outside the
comprehension of lay people.").

The expert who offers testimony in support of a claim of

malpractice must ordinarily be licensed to practice in the relevant area, must be familiar with other
physicians’ methods and procedures, and must be qualified and competent to state an opinion
regarding the standard of care. Gill v. Foster, 157 Ill. 2d 304, 316-17, 193 Ill. Dec. 157, 163, 626
N.E.2d 190, 196 (1993). Plaintiff did file a late affidavit pursuant to 735 ILCS 5/2-622(a)(1).
Plaintiff's Motion to File Amended Exhibit A [89].

That exhibit includes a letter purportedly

prepared by a physician—but the physician’s name is not included, nor did the physician sign the
letter.
Plaintiff might point to the testimony of Dr. El Sami and Dr. Chmell, the two UIC physicians
who treated his injury, but Plaintiff failed to disclose Dr. El Hami and Dr. Chmell as experts,
pursuant to FED. R. CIV. P. 26(a)(2). See Musser v. Gentiva Health Servs., 356 F.3d 751, 756
(7th Cir. 2004) ("all witnesses who are to give expert testimony under the Federal Rules of
Evidence must be disclosed under Rule 26(a)(2)(A)"). In any event, although Dr. El Shami and
Dr. Chmel’s status as general practitioners may not preclude their offering expert testimony on
the standard of care, Jones v. O'Young, 154 Ill. 2d 39, 43, 180 Ill. Dec. 330, 332, 607 N.E.2d 224,
226 (1992), the foundation for such testimony appears inadequate. Purtill v. Hess, 111 Ill. 2d 229,
244, 95 Ill. Dec. 305, 311, 489 N.E.2d 867, 873 (1986) ("a foundation must be laid which
demonstrates that the witness is familiar with the standard of care applicable to a defendant
physician."). Specifically, nether Dr. El Shami nor Dr. Chmell reviewed Plaintiff's medical records
from DCC. El Shami Dep. 11:8-11, July 26, 2018 [149-5]; Chmell Dep. 9:19-22. Indeed, Dr.
Chmell specifically refused to render any opinions about the care Mr. Almond received at DCC.
Chmell Dep. 9:23-10:6. The court dismisses Almond’s malpractice claim without prejudice to
renewal, if Almond can promptly bolster that claim with an appropriate expert affidavit.

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CONCLUSION
Defendants’ motion for summary judgment [148] is granted in part and denied in part.
Claims of deliberate indifference are dismissed as against Dr. Garcia and Wexford, but claims
against Dr. Dominguez and Dr. Wahl survive this motion. Plaintiff’s malpractice claims are
dismissed without prejudice to renewal if he promptly supplements the record. The parties are
encouraged to discuss settlement. A telephone status conference is set for January 30, 2020 at
8:30 a.m. Parties are directed to call this court’s chambers’ number on the date of the status
conference.
ENTER:

Date: January 9, 2020

____________________________
REBECCA R. PALLMEYER
United States District Judge

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