Gallo v. Feinerman et al
Filing
95
ORDER denying 77 Motion for Summary Judgment. Signed by Judge Michael J. Reagan on 7/12/12. (caa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARL GALLO, JR.,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
DR. ADRIAN FEINERMAN,
Defendant.
Case No. 07-cv-0032-MJR-SCW
MEMORANDUM AND ORDER
REAGAN, District Judge:
I. Introduction
Carl Gallo filed suit in this district court in January 2007, alleging
that two doctors, Dr. Ahmed and Dr. Feinerman, were deliberately
indifferent to his serious medical needs and thereby violated his Eighth
Amendment right to be free of cruel and unusual punishment. 1
The sole
remaining Defendant, Feinerman, now moves for summary judgment
pursuant to Federal Rule of Civil Procedure 56 (Doc. 77). Gallo has filed a
Response in opposition to the motion (Doc. 81).
So, the matter is fully
briefed and ready for disposition.
II. Factual Findings
11
On February 9, 2009, on threshold review, the Court dismissed the action with prejudice.
On December 17, 2010, the United States Court of Appeals for the Seventh Circuit issued its
mandate affirming the judgment with respect to Dr. Ahmed, reversing with respect to Dr.
Feinerman and remanding the case for further proceedings. Gallo v. Feinerman, 399
Fed.Appx. 118 (7th Cir. 2010).
The incidents giving rise to this case occurred while Gallo was
incarcerated at Menard Correctional Center (MCC).
gastroesophageal
reflux
disease
and
ulcerative
Gallo suffers from
colitis,
which
is
a
gastrointestinal disorder characterized by pain, blood in the stool, abdominal
cramping, and which may result, in severe cases, in the removal of parts of
the bowel (Doc. 77-1 at p. 2; Doc. 77-3, Feinerman Dep. at p. 11). Gallo
was taking Prilosec for this condition, but, on June 25, 2004, the prison
doctor noted that Prilosec was causing side effects and that reducing the
dosage resulted in less gas, mucus, and stool frequency (Doc. 1-1 at p. 16).
The doctor prescribed a trial of Prevacid, noting that it had helped before.
(Id.).
At some point, Prilosec was again prescribed for Gallo because
when he saw a prison doctor on March 2, 2005, he complained that Prilosec
and antacids were causing an allergic reaction: his tongue swelled and he
had a rash (Doc. 1-1 at p. 18). The medical record also shows that Gallo
received another prescription for Prevacid on March 31, 2005. (Id. at p. 17).
He was scheduled for a flexible fiberoptic sigmoidoscopy in May 2005 and
scheduled to see Dr. Krieg in four-to-six weeks after the procedure (Doc. 1-1
at p. 19).
Gallo saw Krieg, a part-time doctor at MCC, on July 14 or 16,
2005. (Doc. 77-3, Feinerman Dep. at p. 5-6; Doc. 77-1 at p. 2).
At that
time, Krieg continued to prescribe Prevacid to treat Gallo’s ulcerative colitis
(Doc. 77-3, Feinerman Dep. at 11; Doc. 77-1 at p. 2).
Page 2 of 12
However, on July 29, 2005, Feinerman discontinued Gallo’s
Prevacid prescription because it was a non-formulary drug and, instead,
prescribed Prilosec (Doc. 77-1 at p. 3). It is unclear whether Dr. Feinerman
saw Gallo on that date or if he just changed the prescription without having
seen Gallo. 2
Gallo saw Feinerman on August 9, 2005. At that time, Gallo told
Feinerman that he was allergic to Prilosec and wanted Prevacid prescribed
instead (Doc. 77-1 at p. 4). Feinerman discontinued the Prilosec, but it does
not appear that anything else was prescribed in its place.
(Id.).
In
Feinerman’s affidavit, he simply states that, at Gallo’s request, he
discontinued Prilosec (Doc. 77-2, p. 2, Feinerman Aff.).
Feinerman stated in his deposition that when prescribing drugs
at MCC, he would consult the formulary and prescribe accordingly (Doc. 773, Feinerman Dep. at p. 6). However, he also stated that it was possible to
obtain non-formulary drugs, and virtually any medicine was available. Id.
Feinerman testified that in requesting non-formulary drugs, it “would be
unusual of them to say, no, you can’t have that drug.” (Id. at 7).
As described by Feinerman, Prilosec is a brand name for
omeprazole, and Prevacid is a brand name for lansoprazole (Doc. 77-3,
Feinerman Dep. at p. 9).
decrease
the
amount
Both are proton pump inhibitors (PPIs) used to
of
acid
in
a
2
patient’s
system
and
relieve
According to Gallo’s August 1, 2005, grievance, Feinerman did not see him and did not
review his medical file before changing his prescription to Prilosec (Doc. 1-1, p. 8).
Page 3 of 12
gastrointestinal symptoms. (Id.). While the two drugs are similar and serve
the same purpose, they are not identical and have slightly different chemical
compositions. (Id. at 13).
Feinerman indicated that he did not consult with Dr. Krieg when
he discontinued Prevacid and prescribed Prilosec. (Id. at 11). He testified
that he did not recall that there was ever any significant concern about
allergic reactions to Prilosec and that he had “been prescribing that stuff for
twenty years” and had not “seen it yet.” (Id. at 12). However, Feinerman
acknowledged that Prilosec could cause allergic reactions, including swelling
of the lips, throat and tongue, and the symptoms of which Gallo complained
were consistent with those of an allergic reaction. (Id. at 12, 13). He also
stated that he was familiar with Gallo’s prescription history and the issue
related to Prilosec and Prevacid. (Id. at 11). Feinerman further stated that
he would not believe an allergy to Prilosec existed until Gallo showed him
the symptoms. 3 (Id. at 14).
Feinerman did not recall taking any steps to
resolve the question of whether Gallo was experiencing side effects as a
result of the prescription of Prilosec. (Id. at 14).
III. Conclusions of Law
A. Summary Judgment Standard
According to a counselor’s September 12, 2005, response to Gallo’s grievance, Feinerman
stated that “he can no longer prescribe Prevacid as it is not in the allowed formulary.
Prilosec is an acceptable substitute and … there is no documentation that would indicate an
allergic reaction to it” (Doc. 1-1 at p. 15).
3
Page 4 of 12
Summary judgment is proper only “if the admissible evidence
considered as a whole shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Dynegy Mktg. & Trade v. Multi Corp., 648 F.3d 506, 517 (7th Cir.
2011)(internal quotation marks omitted)(citing FED.R.CIV.P. 56(a));
see also Ruffin-Thompkins v. Experian Information Solutions, Inc.,
422 F.3d 603, 607 (7th Cir. 2005). The party seeking summary judgment
bears the initial burden of demonstrating – based on the pleadings,
affidavits, and/or information obtained via discovery – the lack of any
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317
323 (1986).
After a properly supported motion for summary judgment is
made, the adverse party “must set forth specific facts showing that there is
a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986)(quoting FED.R.CIV.P. 56(e)(2)). 4 A fact is material if it is
outcome determinative under applicable law. Anderson, 477 U.S. 242,
248
(1986);
Balance
v.
City
of
Springfield,
Illinois
Police
Department, 424 F.3d 614, 616 (7th Cir. 2005); Hottenroth v. Village
of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004). A genuine issue of
material fact exists if “the evidence is such that a reasonable jury could
Though Rule 56 was amended in 2010, the amendment did not change the
summary judgment standard. Sow v. Fortville Police Dep’t, 636 F.3d 293, 300 (7th
Cir. 2011).
4
Page 5 of 12
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. “A
mere scintilla of evidence in support of the nonmovant’s petition is
insufficient; a party will be successful in opposing summary judgment only
when it presents definite, competent evidence to rebut the motion.” Albiero
v. City of Kankakee, 246 F.3d 927, 931-32 (7th Cir. 2001)(citations
and quotations omitted).
On summary judgment, the Court considers the facts in the light
most favorable to the non-movant. Srail v. Vill. of Lisle, 588 F.3d 940,
948 (7th Cir. 2009). The Court adopts reasonable inferences and resolves
doubts in the nonmovant’s favor. Id.; Nat’l Athletic Sportswear, Inc. v.
Westfield Ins. Co., 528 F.3d at 512. Even if the facts are not in dispute,
summary judgment is inappropriate when the information before the court
reveals that “alternate inferences can be drawn from the available
evidence.” Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004). See also
Anderer v. Jones, 385 F.3d 1043, 1064 (7th Cir. 2004).
B. Deliberate Indifference
“[T]he treatment a prisoner receives in prison and the conditions
under which he is confined are subject to scrutiny under the Eighth
Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). The Eighth
Amendment’s prohibition against cruel and unusual punishment “requires
the State to provide adequate medical care to incarcerated prisoners.”
DeShaney v. Winnebago County Dep’t of Soc. Services, 489 U.S. 189,
Page 6 of 12
198 (1989). Since an inmate cannot care for himself because of the
deprivation of his liberty, “it is only ‘just’ that the State be required to care
for him.” Id. at 199 (quoting Estelle v. Gamble, 429 U.S. 97 (1976)
(quoting Spicer v. Williamson, 191 N.C. 487, 490, (1926)). The Eighth
Amendment imposes a duty on prison officials to ensure that inmates
receive adequate medical care. Farmer v. Brennan, 511 U.S. 825, 832
(1994).
Deliberate indifference to a prisoner’s serious medical need
constitutes a violation of the prisoner’s Eighth Amendment rights. Estelle,
429 U.S. at 104. “A claim of deliberate indifference to a serious medical
need contains both an objective and a subjective component.” Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005); Farmer, 511 U.S. at 834.
“To satisfy the objective component, a prisoner must demonstrate that his
medical condition is objectively, sufficiently serious…. To satisfy the
subjective component, a prisoner must demonstrate that prison officials
acted with a sufficiently culpable state of mind.”
Id.
(citations and
quotation marks omitted).
In analyzing whether a plaintiff suffered from an objectively
serious condition posing a substantial risk of serious harm, “[t]he question
under the Eighth Amendment is whether prison officials … exposed a
prisoner to a sufficiently substantial ‘risk of serious damage to his future
health.…’” Farmer, 511 U.S. at 843 (quoting Helling, 509 U.S. at 35).
Page 7 of 12
To satisfy the objective component, a prisoner must show that his medical
needs are “objectively, sufficiently serious.” Greeno, 414 F.3d at 653
(citing Farmer, 511 U.S. at 834). “A serious medical condition is one that
has been diagnosed by a physician … or one that is so obvious that even a
lay person would perceive the need for a doctor’s attention.” Id. An injury
or illness meets the objective element if the condition is sufficiently serious
or painful so as to make the denial of treatment uncivilized. Cooper v.
Casey, 97 F.3d 914, 916 (7th Cir. 1996).
“[T]here is no requirement
that a prisoner provide ‘objective’ evidence of his pain and suffering – selfreporting is often the only indicator a doctor has of a patient’s condition.”
Greeno, 414 F.3d at 655.
The second component of the two-part test requires that “a
prison official have a sufficiently culpable state of mind,” and that state of
mind is one of “deliberate indifference.” Farmer, 511 U.S. at 834.
Deliberate indifference can be “manifested by prison doctors in their
response to the prisoner’s needs.…” Kelley v. McGinnis, 899 F.2d 612,
616 (7th Cir. 1990) (quoting Estelle, 429 U.S. at 104-105) (internal
quotations omitted). To be found liable for deliberate indifference, the
official must “be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer, 511 U.S. at 837. “[A] factfinder may conclude that a
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prison official knew of a substantial risk from the very fact that the risk was
obvious.” Id. at 842.
“Whether a prison official had the requisite knowledge of a
substantial risk is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence.…” Id. If a plaintiff
were able to present evidence that a particular risk was well-documented or
“expressly noted by prison officials in the past, and the circumstances
suggest that the defendant-official being sued had been exposed to
information concerning the risk” the evidence could be sufficient to find that
the individual had actual knowledge of the risk. Id. at 842-43. The actions
committed must be deliberate or so dangerous that the knowledge of the
risk can be inferred. Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir.
1996). “A prisoner’s dissatisfaction with a doctor’s prescribed course of
treatment does not give rise to a constitutional claim unless the medical
treatment
is
‘so
blatantly
inappropriate
as
to
evidence
intentional
mistreatment likely to seriously aggravate the prisoner’s condition.’” Id. at
592 (quoting Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974)). A
prisoner does not have to show that they were “literally ignored” to prevail
on an Eighth Amendment claim. Greeno, 414 F.3d at 653.
In Greeno, the fact that the nurse thought the prisoner was
“malingering and did not have a severe medical need” was determined to be
an issue for the jury to decide. Id. at 655. The Court in Cooper held that
Page 9 of 12
to deliberately ignore a request for medical assistance was a form of cruel
and unusual punishment. Cooper v. Casey, 97 F.3d 914, 916 (7th Cir.
1996). In Kelley, the Court stated that deliberate indifference could be
found where “the clinic personnel deliberately gave a certain kind of
treatment knowing that it was ineffective, either as a means of toying with
[the inmate] or as a way of choosing ‘the easier and less efficacious
treatment.’” Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990)
(quoting Estelle, 429 U.S. at 104) (additional citation omitted).
Feinerman does not argue, nor could he reasonably argue, that
Gallo did not have a serious medical condition. Instead, Feinerman contends
that his decision to prescribe Prilosec rather than Prevacid does not establish
deliberate indifference to a serious medical need but rather comports with
the standard of medical care in the community (Doc. 77, p. 6). Feinerman
asserts that, under that standard, he had to see Gallo’s allergic reaction to
Prilosec before prescribing Prevacid because Gallo’s reaction could have been
caused by something other than that drug. Also, according to Feinerman,
Prilosec and Prevacid are “basically identical,” and it would be “extremely
unusual” for a patient to be allergic to one and not the other.
However, by mid-2005, the medical records show that Gallo was
allergic to Prilosec but could tolerate Prevacid to treat his condition.
Feinerman claimed that he reviewed Gallo’s record, according to which, Gallo
exhibited a rash and a swollen tongue when taking Prilosec. Also, the record
Page 10 of 12
showed that Gallo had less gas, mucus and stool frequency when taking
Prevacid instead of Prilosec. Feinerman himself stated that the symptoms of
which Gallo complained were consistent with a severe allergic reaction.
Lastly, Feinerman conceded that it was possible to obtain non-formulary
drugs and that it would be unusual for a request for a non-listed drug to be
denied.
Adopting reasonable inferences and resolving doubts in favor of
Gallo, a genuine issue of material fact exists as to whether Gallo was
effectively left without treatment for serious medical condition when an
effective drug was available, a drug, moreover, that Feinerman admitted in
his deposition could be obtained even though it was non-formulary. Stated
more succinctly, as the Seventh Circuit Court of Appeals summed up Gallo’s
allegations, Feinerman’s choice was “give Gallo a drug that helps him, or
give Gallo a drug that harms him.” Gallo, 399 Fed.Appx. at 119-20.
Because genuine issues of material fact exist as to whether
Feinerman was deliberately indifferent to Gallo’s serious medical needs,
summary judgment is not warranted.
IV. Conclusion
For these reasons, the Court DENIES Feinerman’s motion for
summary judgment (Doc. 77). This action remains set for jury trial on July
30, 2012, with a final pretrial conference set for July 12, 2012.
IT IS SO ORDERED.
Page 11 of 12
DATED this 12th day of July, 2012
s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge
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