Burns v. Fenoglio et al
Filing
78
ORDER DENYING 68 Motion for Summary Judgment. The Final Pretrial Conference and Trial will be reset by separate order. The Clerk of Court is DIRECTED to correct the docket sheet to reflect the true spelling and full name of Defendant. "Dr. Fenoglio" should be changed to James Fenoglio. Signed by Judge Nancy J. Rosenstengel on 12/23/14. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYRONE BURNS,
Plaintiff,
vs.
JAMES FENOGLIO,1
Defendant.
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Case No. 11-CV-1104-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff, Tyrone Burns, an inmate housed at the Lawrence Correctional Center
(“Lawrence”), filed a Complaint on December 19, 2011, pursuant to 42 U.S.C. § 1983,
alleging that a number of prison officials and health care providers were deliberately
indifferent to his serious medical need in violation of the Eighth Amendment. This
matter was originally dismissed at screening in August 2012 for failure to state a claim
upon which relief could be granted, and judgment was entered (Doc. 13). On appeal,
however, the Seventh Circuit Court of Appeals vacated the judgment and remanded this
matter as to the claims against Defendant James Fenoglio, a doctor at Lawrence (Doc.
32). Plaintiff now is proceeding on a single count that Dr. Fenoglio was deliberately
indifferent to his serious medical need by delaying treatment for a painful tumor in his
The Clerk of Court is DIRECTED to correct the docket sheet to reflect the true spelling and full
name of Defendant. “Dr. Fenoglio” should be changed to James Fenoglio.
1
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right hip for an eight month period beginning in November 2010.
This matter is currently before the Court on Dr. Fenoglio’s motion for summary
judgment, which he filed on May 1, 2014 (Doc. 68). Burns filed a timely response in
opposition to the motion for summary on June 2, 2014, which addressed the merits of Dr.
Fenoglio’s argument and provided additional evidence for consideration (Doc. 71). For
the reasons set forth below, the motion for summary judgment is denied.
BACKGROUND
The undisputed facts reveal that Burns first noticed a lump the size of a walnut on
his right hip in April of 2010 while he was not incarcerated (Doc. 69-1, p. 6). He went to
the emergency room at John Stroger Hospital in Chicago, Illinois, where he was
prescribed pain medication2 and instructed to appear at a follow-up visit (Id. at pp. 5–6).
At a follow-up visit in May 2010, Burns was told by a doctor that a biopsy would need to
be performed (Id. at p. 5). Prior to the biopsy being performed, however, Burns was
arrested for armed robbery and incarcerated (Doc. 69-2, p. 2).
Burns was held at the Cook County Jail for the first couple weeks following his
arrest, and then he was transferred to Stateville Correctional Center during the first
Burns could not remember the name of the pain medication that he was prescribed (see Doc.
69-1, p. 6). He stated that it was not ibuprofen, and it started with an “H” (Id.). He guessed that it
was hydrocortisone (Id.), which is used to treat inflammation, arthritis, allergies, and asthma.
U.S.
National
Library
of
Medicine,
Medline
Plus,
Hydrocortisone
Oral,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682206.html (last visited Dec. 17,
2014). The Court thinks it is more likely that Burns was prescribed hydrocodone, which is used
to relieve severe pain. U.S. National Library of Medicine, Medline Plus, Hydrocodone,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a614045.html (last visited Dec. 17,
2014).
2
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week of June 2010 (“Stateville”) (Id.). When he arrived at Stateville, Burns was examined
by Dr. Diane Schwartz, who referred him to Dr. Sylvia Mahone, the head doctor (Id. at p.
7). A week later, on June 22, 2010, he was seen by Dr. Mahone (Id. at p. 8; Doc. 71, p. 8).
Burns complained that the lump was getting bigger and that it hurt when he walked
(Doc. 71, p. 8). Dr. Mahone prescribed ibuprofen for the pain and referred Burns to the
University of Illinois at Chicago Medical Center for a biopsy (Doc. 69-1, p. 8; Doc. 71, p.
8; see Doc. 69-2, p. 6). The referral order indicated that the matter was “urgent” (Doc. 71,
p. 8). According to Burns, Dr. Mahone told him that she thought the condition might be
lymphoma, which is a form of cancer (Id.; Doc. 69-2, p. 2). On the referral order,
however, Dr. Mahone noted that it was a “probable lipoma,” which is a “benign form of
a soft tissue growth” (Doc. 71, p. 8; Doc. 69-2, p. 2). Dr. Mahone’s referral was denied on
collegial review, and an alternate plan was approved which placed Burns on a medical
hold and directed that he should be re-evaluated the following month (Doc. 71, p. 9).
Burns put in another sick call, and he was seen by Dr. Mahone on June 28, 2010
(Doc. 69-2, p. 6). Dr. Mahone noted that Burns’s lab results were within normal limits
and his xray was negative (Id.). Dr. Mahone prescribed Tylenol to Burns because he
complained that the ibuprofen was not helping the pain (Id.). According to Burns, at that
time, his pain was “like an eight out of ten,” but Dr. Mahone would not give him “strong
enough medication” (Doc. 69-1, p. 9). Burns also testified that Dr. Mahone told him to be
patient because it could take up to six months to receive outside treatment (Id. at p. 8).
Burns testified that he was taking the over-the-counter pain medication “like they
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were candy because he was in so much pain” (Id. at p. 9). He stated “I don’t wish that
pain on anybody, man. It was just horrible.” (Id.). He further testified that the
over-the-counter pain medication helped a little bit at first, but as the lump grew, it did
nothing to alleviate his pain (Id. at pp. 9–10). He continued taking the over-the-counter
pain medication because it was all he had; he stated “I would eat four or five of them
things, the 800’s” (Id.). But after three or four months, the medication negatively affected
his stomach and his bowel movements (Id. at p. 9).
Burns was at Stateville until November 2010, at which time he was transferred to
Lawrence (Id. at p. 10; Doc. 69-2, p. 2). He indicates that during the approximately six
months that he was incarcerated at Stateville, the lump grew in size, he experienced
severe pain, the pain medication did not help and was causing undesirable side effects,
he could not sleep on his right side, and he could not exercise, which caused him to gain
thirty pounds (Doc. 69-1, pp. 8–11). No biopsy had been performed by the time he was
transferred to Lawrence (Id. at p. 10).
Upon his arrival at Lawrence, Burns underwent a reception screening by a nurse
on November 16, 2010 (Doc. 69-2, p. 7). The nurse noted that he had a tumor on his right
hip (Id.). According to Burns, the nurse told him that he would automatically be put in to
see Dr. Fenoglio (Doc. 69-1, p. 12).
By January 2011, Burns still had not seen Dr. Fenoglio, so he put in a sick call
request (Id.at p.12). Burns testified that he saw Dr. Fenoglio sometime in January 2011,
and the following exchange occurred:
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Yeah, when I first seen him he said, he looked at my hip, and he was like,
man, what is that? And I was like, man, it’s a tumor. And he said oh don’t
worry about it, it might go away. I said, man, if you look at my chart, it has
been there for the past seven months. What do you mean it is going to go
away? This was Doctor Fenoglio’s first words to me.
(Id. at pp. 12, 13–14).
Dr. Fenoglio disputes that he saw Burns in January 2011. He states that Burns’s
medical records show that he was seen by a nurse on sick call on February 16, 2011 (Doc.
69-2, pp. 2, 9). It was noted that Burns had a lump on his right hip, and the plan at that
time was to schedule him to see Dr. Fenoglio on the first available date (Id.). According
to Dr. Fenoglio, Burns “refused the ‘MD Line’ per Lawrence security” on February 18,
2011 (Doc. 69-2, pp. 2, 9).3
Both parties agree that Burns saw Dr. Fenoglio on March 24, 2011 (Doc. 69-1, p. 14;
Doc. 69-2, pp. 2, 11). Burns complained that the lump “aches and hurts,” and he told Dr.
Fenoglio that he was supposed to have it cut out before he went to prison and while he
was at Statesville (Doc. 69-2, p. 11). Dr. Fenoglio noted that Burns had a firm, rubbery
mass on his right hip that was “nontender” and “about the size of palm of one’s hand”
(Id. at p. 12). Dr. Fenoglio ordered a soft tissue x-ray (Id. at pp. 2, 12). He did not prescribe
any pain medication at that time (see id. at pp. 11–12).
The xray was taken on March 28, 2011, and Dr. Fenoglio noted that it showed “a
tissue density mass of about the size of egg but is not very distinct on its superior
The Court is not certain but assumes this means that someone was sent to fetch Burns for an
appointment with the doctor, but Burns refused to go.
3
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borders” (Doc. 69-2, pp. 12, 13). That same day, Dr. Fenoglio completed a referral for a
biopsy of the lump (Id. at p. 14). On collegial review, it was noted that the mass was
“approx. the size of an orange” (Id. at p. 16). The biopsy referral was denied on collegial
review, but an alternate plan for an onsite ultrasound was approved (Id. at pp. 3, 16).
The ultrasound was performed on April 12, 2011 (Id. at p. 17). The ultrasound
showed “complex cystic and solid lesions” and a solid mass that measured 2.4cm
lengthwise and 16mm in diameter (Doc. 69-2, pp. 3, 16). Thirteen days later, on April 25,
2011, Burns had a follow-up visit with Dr. Fenoglio (Id. at pp. 3, 18). Burns again
complained of pain from the lump, and Dr. Fenoglio wrote Burns a thirty-day
prescription for 400mg of ibuprofen (Id.). Dr. Fenoglio also completed another referral
for a biopsy (Id.). The referral was approved on collegial review on May 3, 2011 (Id. at pp.
3, 20, 21). It took another ten days for the biopsy to be scheduled at the Carle Clinic on
May 25, 2011 (Id. at p. 3).
Burns underwent the biopsy on May 25, 2011 (Doc. 69-2, p. 3). No medical records
from the biopsy were submitted to the Court. According to Burns, the doctor at the Carle
Clinic “took a needle about this long . . . about 12 inches, and did an incisional biopsy,
and he drained 70 CC’s of fluid off my hip” (Doc. 69-1, p. 16). The doctor conducting the
biopsy also indicated that Burns had a hematoma, and he recommended immediate
surgery to remove two nodules (Id.).
Two days later, on May 27, 2011, Burns had a follow-up visit with Dr. Fenoglio
(Doc. 69-2, pp. 3, 22). Dr. Fenoglio noted that Burns’s pain was “manageable now” after
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having the fluid drained (Id. at p. 22). He also noted the presence of “atypical cells” of
“uncertain significance” (Id. at pp. 3, 22, 23). According to Burns, however, his pain
remained the same after the fluid was drained and did not improve until the lump was
actually removed (Doc. 69-1, p. 17). Burns also testified that Dr. Fenoglio told him that
there was no cancer, but they discovered nodules which were causing his pain, and he
was going to be referred for surgery (Id. at p. 16). Dr. Fenoglio completed a referral for an
excisional biopsy, which was approved on collegial review on May 31, 2011 (Doc. 69-2,
pp. 3, 23, 24).
Burns was seen for a surgery consultation by Dr. Daniel Pontius, a general
surgeon, at Lawrence County Memorial Hospital on June 20, 2011 (Doc. 71, p. 11; Doc.
69-2, p. 3; Doc. 69-1, p. 4, 17). Dr. Pontius was concerned about a sarcoma,4 and therefore
recommended that Burns be sent to the Carle Clinic to see a surgical oncologist (Id.; Doc.
69-2, pp. 4, 25). According to Burns, Dr. Pontius said that he “[was] not touching it”
because he was worried that it was cancerous (Doc. 69-1, p. 17). Dr. Pontius also
questioned why Burns was sent to him and not simply sent back to the Carle Clinic (Id.).
Two days later, on June 22, 2011, Burns had a follow-up visit with Dr. Fenoglio
(Doc. 69-2, p. 25). The doctor refilled Burns’s prescription for ibuprofen and completed a
referral for an evaluation by a surgical oncologist (Id. at pp. 25, 26). The referral was
approved on collegial review, and Burns was scheduled to see Dr. Eddy Hsueh at St.
Sarcoma is a cancer of the soft tissue. U.S. National Library of Medicine, Medline Plus, Soft
Tissue Sarcoma http://www.nlm.nih.gov/medlineplus/softtissuesarcoma.html (last visited Dec.
17, 2014).
4
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Louis University Hospital on June 29, 2011 (Doc. 69-2, pp. 4, 25, 26).5 No medical records
from the visit were submitted to the Court.
On July 5, 2011, Burns had a follow-up visit with Dr. Fenoglio (Doc. 69-2, p. 28).
According to Dr. Fenoglio’s notes, Dr. Hsueh recommended an excisional biopsy (Id. at
pp. 4, 28). Dr. Fenoglio wrote Burns a thirty-day prescription for 100mg of Ultram6 and
completed a referral for an excisional biopsy (Id.). The referral was approved on collegial
review on July 12, 2011 (Id. at pp. 4, 29). It took another week for the surgery to be
scheduled for August 2, 2011 (Id. at 4, 30).
Burns underwent surgery to have the lump removed on August 2, 2011. Burns
submitted the operative report and pathology report as evidence (Doc. 71, pp. 12–16),
but neither party submitted Dr. Hsueh’s notes. The pathology report indicates that the
mass that was removed measured 4 cm x 2.9 cm x 2.3 cm (Doc. 71, p. 15). According to
Dr. Fenoglio, Burns had a “benign organizing hematoma or cystic structure” (Doc. 69-2,
pp. 4, 32). Burns testified that it took him about two weeks to recover from the surgery
and then he was pain free (Doc. 69-1, p. 18). He further testified that Dr. Hsueh
prescribed antibiotics and therapy, but he did not receive those recommended
treatments (Id. at p. 19).
The medical records indicate that prior to seeing Dr. Hsueh, Burns underwent an abdominal
ultrasound on June 27, 2011, the results of which were negative (Doc. 69-2, p. 27).
6 Ultram is a brand name for Tramadol, which is an opiate analgesic used to relieve moderate to
moderately severe pain. U.S. National Library of Medicine, Medline Plus, Tramadol,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a695011.html (last visited Dec. 17,
2014).
5
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DISCUSSION
A. Legal Standard for Summary Judgment
The standard applied to summary judgment motions under Federal Rule of Civil
Procedure 56 is well-settled and has been succinctly stated as follows:
Summary judgment is proper when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. In determining
whether a genuine issue of material fact exists, [the Court] must view the
record in a light most favorable to the nonmoving party. Because the
primary purpose of summary judgment is to isolate and dispose of
factually unsupported claims, the nonmovant may not rest on the
pleadings but must respond, with affidavits or otherwise, setting forth
specific facts showing that there is a genuine issue for trial . . . . A mere
scintilla of evidence in support of the nonmovant’s position 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). No issue remains for trial “unless there is sufficient evidence favoring the
non-moving party for a jury to return a verdict for that party. If the evidence is merely
colorable, or is not sufficiently probative, summary judgment may be granted.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).
B. Analysis
Burns claims that Dr. Fenoglio was deliberately indifferent to his serious medical
need because the doctor delayed scheduling Burns for surgery to remove the mass in his
right hip and failed to prescribe effective pain medication prior to the surgery.
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Prison physicians are liable under the Eighth Amendment for cruel and unusual
punishment if they are deliberately indifferent to an inmate’s serious medical need.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on a deliberate indifference
claim, there are “two high hurdles, which every inmate-plaintiff must clear.” Dunigan ex
rel. Nyman v. Winnebago County, 165 F.3d 587, 590 (7th Cir. 1999). First, a plaintiff must
demonstrate that his medical condition was “objectively, sufficiently serious.” Greeno v.
Daley, 414 F.3d 645, 652-653 (7th Cir. 2005) (citations and quotation marks omitted).
Second, a plaintiff must demonstrate that the “prison officials acted with a sufficiently
culpable state of mind,” meaning that the prison officials knew that the prisoner’s
medical condition posed a serious risk to the prisoner’s health, but they consciously
disregarded that risk. Greeno, 414 F.3d at 653; Holloway v. Delaware Cnty. Sheriff, 700 F.3d
1063, 1073 (7th Cir. 2012).
1. Serious Medical Need
Dr. Fenoglio first argues that he is entitled to summary judgment because Burns
was not suffering from a serious medical need (Doc.76, p. 8). The Court disagrees.
A serious medical condition is one “that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would perceive the
need for a doctor’s attention.” Edwards v. Snyder, 478 F.3d 827, 830–31 (7th Cir. 2007).
“Notably, ‘[a]medical condition need not be life-threatening to be serious; rather, it
could be a condition that would result in further significant injury or unnecessary and
wanton infliction of pain if not treated.’” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)
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(quoting Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)).
The evidence shows that the lump on Burns’s hip was growing, causing severe
pain, and limiting his ability to sleep and exercise. There is no suggestion in the record
that Burns was exaggerating his symptoms or malingering, or that his pain was caused
by some other medical condition. Furthermore, three outside physicians opined that
Burns needed treatment and recommended surgery to have the lump removed—the
doctor at the Carle Clinic who performed the needle biopsy, Dr. Pontius, and Dr. Hseuh.
There is nothing in the record that indicates any of these doctors considered the surgery
to be elective or cosmetic. In fact, Dr. Pontius was concerned that the lump could be
cancerous. Taken together and viewed in a light most favorable to Burns, a reasonable
jury could find that the mass constituted a serious medical need.
2. Deliberate Indifference
Dr. Fenoglio next argues that he is entitled to summary judgment because he was
not deliberately indifferent to Burns’s serious medical need (Doc. 76, 12). Again, the
Court disagrees.
Prisoners are not entitled to receive “unqualified access to healthcare”; instead,
they are only entitled to “adequate medical care.” Holloway v. Delaware Cnty. Sheriff, 700
F.3d 1063, 1073 (7th Cir. 2012) (citations omitted). Furthermore, “[t]here is not one
‘proper’ way to practice medicine in prison, but rather a range of acceptable courses
based on prevailing standards in the field.” Id. (quoting Jackson v. Kotter, 541 F.3d 688,
697 (7th Cir. 2008)). Accordingly, in order for a prison medical professional to be held
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liable for deliberate indifference, his or her treatment decisions must be “such a
substantial departure from accepted professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did not base the decision on such a
judgment.” Holloway, 700 F.3d at 1073 (quoting Sain v. Wood, 512 F.3d 886, 895 (7th Cir.
2008)). In other words, a prison medical professional is “entitled to deference in
treatment decisions unless no minimally competent professional would have so
responded under those circumstances.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)
(quoting Sain, 512 F.3d at 894–95).
Additionally, a delay in providing effective medical treatment can constitute
deliberate indifference if the delay unnecessarily prolonged an inmate’s pain. McGowan
v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). “[T]he length of delay that is tolerable depends
on the seriousness of the condition and the ease of providing treatment.” Smith v. Knox
Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012) (quoting McGowan, 612 F.3d at 640). “Even a
few days’ delay in addressing a severely painful but readily treatable condition suffices
to state a claim of deliberate indifference.” Smith, 666 F.3d at 1040.
It is indisputable that while Burns was incarcerated at Lawrence, Dr. Fenoglio
evaluated him multiple times, ordered an xray and ultrasounds, sent him for
consultations with specialists, and eventually approved a biopsy and surgery to remove
the lump. But the fact that Burns received some medical attention does not foreclose his
deliberate indifference claim. Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011). He
can still prevail if Dr. Fenoglio’s response was blatantly inappropriate in the face of his
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pain and the likelihood that his condition was worsening. Id.
The evidence, when viewed in a light most favorable to Burns, shows that he
complained a number of times that he was in severe pain and that the lump was
growing. Despite his complaints, Burns did not receive any pain medication for the first
five months that he was at Lawrence. 7 After that, for approximately two and half
months, he received only over-the-counter pain medication that was ineffective. It was
not until one month before the surgery to remove the lump that Dr. Fenoglio prescribed
Burns something stronger. Additionally, Burns was at Lawrence for six months before
the lump was biopsied and approximately eight and half months before the lump was
surgically removed. Eight and a half months seems unnecessarily long to wait to have a
large, increasingly expanding, painful, and potentially cancerous mass removed. It is
hard to imagine that a doctor seeing a civilian patient would have waited that long.
Dr. Fenoglio stated in his affidavit that “the ordering and scheduling of the
Plaintiff’s medical care was appropriate in light of the clinical findings” (Doc. 69-2, p. 4).
Dr. Fenoglio did not explain the basis for his conclusory assertion, however, and he did
not present any evidence showing that his decisions were actually consistent with
accepted professional judgment, practice, or standards for treating a patient who
presents with a condition like Burns’s. Furthermore, Dr. Fenoglio did not address why
he prescribed only over-the-counter pain medication when Burns repeatedly
complained that he was still in pain.
Based on the evidence submitted to the Court, Dr. Fenoglio did not prescribe Burns any pain
medication until April 25, 2011. See supra p. 6.
7
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Accordingly, Dr. Fenoglio has failed to put forth sufficient evidence to show that
he is entitled to judgment as a matter of law that he was not deliberately indifferent to
Burns’s serious medical need. Viewing all of the evidence in a light most favorable to
Burns, a reasonable jury could infer that Dr. Fenoglio substantially departed from
professional judgment by waiting to authorize a biopsy and surgical removal of Burns’s
lump and continuing to treat him with ineffective pain medication.
CONCLUSION
For these reasons, the motion for summary judgment filed by Defendant James
Fenoglio (Doc. 68) is DENIED. The Final Pretrial Conference and Trial will be reset by
separate order. The Clerk of Court is DIRECTED to correct the docket sheet to reflect the
true spelling and full name of Defendant. “Dr. Fenoglio” should be changed to James
Fenoglio.
IT IS SO ORDERED.
DATED: December 23, 2014
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge
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