Keller v. Ahmed et al
Filing
94
OPINION, denying 70 MOTION for Summary Judgment filed by Adrian Feinerman. Signed by Judge Richard H. Mills on 4/20/2011. (myz )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HILTON LLOYD KELLER,
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Plaintiff,
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vs.
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ADRIAN FEINERMAN and DR. ELYEA, )
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Defendants.
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Case No. 3:06-CV-661
OPINION
RICHARD MILLS,1 U.S. District Judge:
For the following reasons, Defendant Adrian Feinerman’s Motion for
Summary Judgment [d/e 70] is denied.
I. BACKGROUND
The Plaintiff, Hilton Keller, is a prisoner at the Menard Correctional Center,
Menard, Illinois. Dr. Adrian Feinerman has been the Medical Director at Menard
Correctional Center since 2005.
This is a civil rights action pursuant to 42 U.S.C. § 1983, wherein the
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Honorable Richard Mills, United States District Judge for the Central District of Illinois,
sitting by designation.
Plaintiff alleges that his constitutional rights have been violated during his
incarceration. The Plaintiff claims that Dr. Feinerman was deliberately indifferent
to his serious medical needs, an assertion that Dr. Feinerman disputes. Dr.
Feinerman contends that he enjoys qualified immunity.
The Plaintiff suffers from gastroesophagael reflux disease (GERD). The
Plaintiff claims that prior to Dr. Feinerman’s appointment as Medical Director at
Menard, the Plaintiff had sought medical attention from prison staff regarding his
GERD symptoms. The Plaintiff claims that he had previously sought treatment for
his GERD and throat pain. The Plaintiff claims that a Menard physician, Dr. Platt,
recommended referral to an ear, nose, throat specialist (ENT) in 2004, but that this
request was blocked by Dr. Faisal Ahmed, the Medical Director at that time.
The Plaintiff has had numerous other health care issues or complaints during
his incarceration at Menard. For example, on June 29, 2005, the Plaintiff was sent
to an outside facility so a lymph node biopsy could be performed.
Dr. Feinerman had his first visit with the Plaintiff during the Summer of
2005.2 Prior to that appointment, Dr. Feinerman reviewed the Plaintiff’s medical
records and possessed general knowledge of the Plaintiff’s medical history.
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The Parties dispute when the first appointment between the Plaintiff and Dr. Feinerman
took place.
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The Plaintiff claims that on August 1, 2005, August 22, 2005, and
September 6, 2005, the Plaintiff complained to Dr. Feinerman about severe
heartburn, shoulder pain, sore throat, abdominal pain, stomach cramps, and
constipation. The Plaintiff claims that he repeatedly requested a referral to an
ENT. Dr. Feinerman denies these allegations.
The Plaintiff claims that when he saw Dr. Feinerman again on November 30,
2005, he told Dr. Feinerman of his sore throat and hoarseness, and requested to see
an ENT. The Plaintiff claims he was suffering severe pain throughout this period.
Dr. Feinerman denies this allegation.
On February 26, 2006, the Plaintiff saw another physician, Dr. Ady. Dr.
Ady determined that the Plaintiff’s chronic hoarseness of voice was probably
caused by GERD. Dr. Ady recommended that the Plaintiff see an ENT.
On March 17, 2006, Dr. Feinerman saw the Plaintiff, and noted that the
hoarseness could have been caused by GERD. The Plaintiff was seen by another
doctor on March 21, 2006, who recommended that the Plaintiff see an ENT.
The Plaintiff was sent to an ENT in early April of 2006, and the Plaintiff
underwent a laryngael polypectomy on May 19, 2006.
During relevant periods, the Plaintiff had been prescribed medication,
including Tagament and Prilosec. The Parties dispute whether the Plaintiff’s
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GERD treatment to date has been adequate since the surgery was performed in
May of 2006.
The Parties agree on very few facts in this case. Before the Court are
affidavits from both the Plaintiff and Dr. Feinerman, depositions from both Parties,
and other documentation. The differing accounts of treatment are not reconcilable.
In the summary judgment briefing, each party has denied the bulk of the opposing
party’s factual assertions.
II. STANDARDS
The entry of summary judgment is appropriate when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with any
affidavits, show that there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “Rule 56(c) mandates the entry of judgment,
after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp., 477 U.S. at 322. The Court construes all facts and makes all
reasonable inferences in favor of the non-moving party. Magin v. Monsanto Co.,
420 F.3d 679, 686 (7th Cir. 2005).
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III. ANALYSIS
A. Deliberate Indifference
In order to establish a claim of deliberate indifference, a plaintiff must
demonstrate (1) that he suffered from an objectively serious medical condition, and
(2) that the defendant was deliberately indifferenct to the condition. See Zentmyer
v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000).
1. Objectively Serious Medical Condition
The Defendant has not argued that GERD is not an objectively serious
medical condition. In any event, the U.S. Court of Appeals for the Seventh Circuit
has determined that GERD is a serious condition. See Greeno v. Daley, 414 F.3d
645 (7th Cir. 2005).
2. Deliberate Indifference by Defendant
“Deliberate indifference occurs when a defendant realizes that a substantial
risk of serious harm to the prisoner exists, but the defendant disregards that risk.
Deliberate indifference is intentional or reckless conduct, not mere negligence.”
Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (citations omitted).
Neither medical malpractice nor mere disagreement with a doctor’s medical
judgment is enough to prove deliberate indifference in violation of the
Eighth Amendment. But a prisoner also is not required to show that he was
literally ignored . . . A doctor’s choice of the “easier and less efficacious
treatment” for an objectively serious medical condition can still amount to
deliberate indifference for the purposes of the Eighth Amendment. A
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significant delay in effective medical treatment also may support a claim of
deliberate indifference, especially where the result is prolonged and
unnecessary pain. In this context, courts may consider the cost of treatment
alternatives when determining what constitutes adequate, minimum-level
medical care, but medical personnel cannot simply resort to an easier course
of treatment that they know is ineffective.
Id. at 441 (citations, quotation marks, and alteration omitted).
One of the key points made by the Court of Appeals in Berry is that a delay
in effective treatment can support a claim of deliberate indifference, particularly in
cases where the delay results in “prolonged and unnecessary pain.” 604 F.3d at
441.
Recent Seventh Circuit decisions show that summary judgment is not
appropriate when (1) a prisoner has an objectively serious medical condition that
requires referral to a specialist, (2) the prison doctor refuses to make the referral,
and (3) the prisoner is subjected to pain as a result. See Berry, 604 F.3d at 441
(holding that summary judgment was not appropriate when jailhouse medical staff
refused to make dental referral for prisoner suffering tooth pain); Snyder v. Hayes,
546 F.3d 516, 526 (7th Cir. 2008) (holding that summary judgment was not
appropriate when medical staff refused urology referral requested by prisoner
suffering severe testicular pain associated with muscle cramps in his scrotum);
Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005) (holding that summary
judgment was not appropriate when a prisoner suffering from severe GERD was
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given over-the-counter medication and denied referral to a specialist).
On the evidence before the Court, a jury could conclude that Dr. Feinerman
persisted in an easier method to treat the Plaintiff’s pain that he knew was
ineffective. Viewing the facts in the light most favorable to the Plaintiff, the
course of treatment was not effective and Dr. Feinerman was unable to identify the
source of the Plaintiff’s throat pain. A jury could conclude that Dr. Feinerman
refused to refer the Plaintiff to an ENT specialist for a period of nearly a year.
It is unlikely that a civilian doctor would refuse to refer a patient to a
specialist when the individual complains of severe pain, and repeatedly and
specifically begs for a referral to a specialist.
Referring the Plaintiff to an ENT specialist would not have been an
extraordinary measure. Instead, this would have been an inexpensive and
conventional treatment option. See Ralston v. McGovern, 167 F.3d 1160, 1162
(7th Cir. 1999).
Therefore, summary judgment is not warranted in these circumstances.
The Defendant’s Motion for Summary Judgment is alternatively denied
because there are genuine issues of material fact. The accounts presented by the
Parties are not reconcilable in favor of Dr. Feinerman based solely upon the papers
before the Court. Ultimately, a trier of fact will have to make a credibility
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determination in order to know which side to believe.
B. Qualified Immunity
Dr. Feinerman claims he is entitled to qualified immunity because he was
relying upon “his experience and expertise in exercising his medical judgment in
treating the patient.” Def.’s Mem. in Supp. of Mot. for Summ. J. [d/e 71], 31.
“Qualified immunity shields public officials from liability when they act in a
manner that they reasonably believe to be lawful.” Gonzalez v. City of Elgin, 578
F.3d 526, 540 (7th Cir. 2009).
In determining whether a defendant is entitled to qualified immunity, courts
examine (1) whether the facts, viewed in the light most favorable to the plaintiff,
indicate that the defendant violated a constitutional right; and (2) whether the
constitutional right was clearly established when the alleged violation occurred.
See Gonzalez, 578 F.3d at 540. Courts may decide these questions in whatever
order is best suited to the particular case. See id.
1. Constitutional Violation
As detailed above, viewing the facts in the light most favorable to the
Plaintiff, a jury could conclude that the Plaintiff’s Constitutional Rights were
violated.
2. Clearly Established Rights
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The Court will consider whether Dr. Feinerman violated the Plaintiff’s
clearly established rights. “Since the purpose of qualified immunity is to protect
public officials from guessing about constitutional developments at their peril, the
plaintiffs have the burden of showing that the constitutional right was clearly
established.” Gonzalez, 578 F.3d at 540.
A plaintiff can meet this burden by showing that there is “a clearly
analogous case establishing the right to be free from the specific conduct at issue”
or that “the conduct is so egregious that no reasonable person could have believed
that it would not violate clearly established rights.” Id. (quoting Smith v. City of
Chicago, 242 F.3d 737, 742 (7th Cir. 2001)). If the qualified immunity inquiry
involves disputed facts, then the issue is one for trial. See id.
Dr. Feinerman argues that he is entitled to qualified immunity, asserting that
“there is no case law or evidence to indicate that a physician using his best
judgment based on his education, experience, and expertise in providing medical
care constitutes a violation of an individual’s constitutional rights.” Def.’s Mem.
in Supp. of Mot. for Summ. J. [d/e 71], 32.
Dr. Feinerman argues that Greeno v. Daley is the most factually similar case
from the Seventh Circuit, and that, because it is distinguishable, he is immune. Dr.
Fenierman points out that in Greeno, the medical staff refused to treat Mr. Greeno,
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while in this case, Mr. Keller “has been seen by surgeons, provided CT scans of his
head and neck, given a biopsy of his lymph nodes, and evaluated by [an] Ear, Nose
and Throat specialist.” Def.’s Mem. in Supp. of Mot. for Summ. J. [d/e 71], 32.
The Plaintiff notes that the deliberate indifference to a prisoner’s serious
medical needs violates the Eighth Amendment prohibition against cruel and
unusual punishment. See Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008).
There is no question that this general rule is clearly established. The Plaintiff
claims that he has shown that he made every effort to inform Dr. Feinerman of his
serious medical condition. Nevertheless, according to the Plaintiff, his condition
was not properly treated, which resulted in the Plaintiff enduring severe and
ongoing pain.
Relying on Hayes, the Plaintiff notes that the standard regarding deliberate
indifference has long been established. See Hayes, 546 F.3d at 528 (“It has been
established for decades that prison physicians violate inmates’ constitutional rights
when they deliberately disregard an inmate’s serious medical condition”).
Turning to Greeno, the Plaintiff states the following:
The facts of this case are substantially similar to Greeno. Here, despite Dr.
Feinerman’s knowledge of Plaintiff’s lengthy history of G.E.R.D. and of the fact
that other physicians had recommended sending Plaintiff to an outside E.N.T.
specialist, Dr. Feinerman withheld Mr. Keller’s referral for nearly a year. The
fact that Mr. Keller was, at some point, referred to specialists does not make the
length of time Dr. Feinerman waited to do so reasonable. Defendant recites the
number of tests performed on Mr. Keller. Yet, over the course of several years,
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which is how long Mr. Keller has been suffering from G.E.R.D. symptoms, this
does not necessarily demonstrate proper treatment. A plaintiff’s receipt of some
medical care does not automatically defeat a claim of deliberate indifference if a
fact finder could infer that the treatment was so blatantly inappropriate as to
evince intentional mistreatment. That Dr. Feinerman eventually succumbed and
sent Mr. Keller to an E.N.T. only serves to reinforce the fact that there had been a
need for Mr. Keller to see an E.N.T. all along.
Pl.’s Mem. in Opp’n to Mot. for Summ. J. [d/e 77], 21-22 (alteration, quotation
marks, and citations omitted).
The Court recognizes that this is a close issue, but in the end, it finds the
Plaintiff’s arguments more persuasive. The Court finds that Greeno v. Daley did
provide Dr. Feinerman notice that the alleged conduct would violate the Plaintiff’s
rights. Accordingly, Dr. Feinerman does not enjoy qualified immunity.
Alternatively, the multitude of disputed material facts prevent the Court
from determining that Dr. Feinerman is entitled to qualified immunity.
IV. CONCLUSION
Ergo, Defendant Adrian Feinerman’s Motion for Summary Judgment [d/e
70] is DENIED.
IT IS SO ORDERED.
DATED: April 20, 2010
/s/ Richard Mills
RICHARD MILLS
United States District Judge
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