Barrow v. Wexford Health Sources, Inc. et al
Filing
349
ORDER DENYING 284 Motion for Summary Judgment filed by Defendant Dr. Eric Johnson; GRANTING 285 Motion for Summary Judgment filed by Defendant Dr. Christine Lochhead; and DENYING 286 Motion for Summary Judgment filed by Defendants Wexford Health Sources, Inc., Dr. Robert Shearing, and Dr. Mark Baker. Defendant Dr. Christine Lochhead is DISMISSED with prejudice. Signed by Judge Nancy J. Rosenstengel on 5/5/2017. (mlp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD BARROW,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
DR. ERIC JOHNSON, DR. CHRISTINE
LOCHHEAD, DR. ROBERT
SHEARING, DR. MARK BAKER, and
WARDEN OF MENARD,
Defendants.
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Case No. 3:14-CV-941-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on Defendant Dr. Eric Johnson’s motion for
summary judgment (Doc. 284), Defendant Dr. Christine Lochhead’s motion for
summary judgment (Doc. 285), and Defendants Wexford Health Sources, Inc., Dr. Robert
Shearing, and Dr. Mark Baker’s motion for summary judgment (Doc. 286). For the
reasons set forth below, Defendant Dr. Johnson’s motion is denied, Defendant Dr.
Lochhead’s motion is granted, and Defendants Dr. Baker, Dr. Shearing, and Wexford’s
motion is denied.
INTRODUCTION
Plaintiff Ronald Barrow, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit pro se pursuant to 42 U.S.C. § 1983 alleging his
constitutional rights were violated while he was incarcerated at Menard Correctional
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Center. Barrow’s allegations relate to ongoing medical treatment, or lack thereof, to
address various eye conditions that have impaired his vision since 2012. Following the
filing of an amended complaint and an order on motions for summary judgment on the
issue of exhaustion of administrative remedies, Barrow is proceeding on a claim of
deliberate indifference against Defendants Wexford Health Sources, Inc. (“Wexford”),
Dr. Eric Johnson, Dr. Christine Lochhead, Dr. Robert Shearing, and Dr. Mark Baker. The
Warden of Menard is named as a defendant only in an official capacity for purposes of
securing injunctive relief, if necessary (see Docs. 1, 113, and 192).
Barrow timely responded to Defendants’ motions for summary judgment (after
requesting, and being granted, an extension of time to do so) (see Docs. 299, 300, 305, and
310-311). The Court, having carefully considered the briefs and all of the evidence
submitted by the parties, finds as follows.
FACTUAL BACKGROUND1
Barrow’s claims in this matter relate to the medical care he received for various
eye conditions from 2012 onward, causing him to lose vision in one or both eyes.
Barrow’s first eye examination relevant to this case occurred on January 10, 2012, when
he saw Dr. Johnson, the onsite optometrist at Menard (Barrow’s Deposition, Doc. 285-1,
p. 4; Doc. 284-1, p. 85). Barrow contends that he began losing vision in his right eye in
January 2012, and he told Dr. Johnson at his exam that he was seeing floaters in his right
eye (Doc. 285-1, p. 4). Dr. Johnson checked Barrow’s visual acuity, noting it was 20/20
In setting forth the factual background, the Court chronicles the material facts underlying Barrow’s
claims as evidenced in the record before the Court. The Court notes that Barrow disputes a number of facts
that Defendants presented. Although the Court declines to address each dispute, it will highlight genuine
issues of material fact, as required by Federal Rule of Civil Procedure 56(a).
1
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with correction in both eyes, and submitted an order for new eyeglasses for Barrow
(Doc. 284-1, p. 85). Barrow asserts Dr. Johnson did not address his complaint of floaters
at this examination (Doc. 299-1, p. 2, ¶ 4). Dr. Johnson contends there is no record that
Barrow ever complained of floaters on this date. In support of this position, Dr. Johnson
points to two letters written by Barrow, dated February 2 and February 21, 2012, which
reference his examination on January 10, 2012, and complain about recent loss of eye
sight in his right eye, but fail to include any reference to right eye floaters (although Dr.
Johnson asserts he never received the letters, a fact that Barrow disputes) (Doc. 284-1, pp.
97-98). Barrow disputes that these letters support an inference that he failed to complain
to Dr. Johnson about floaters. In any event, it is undisputed that floaters can signal a
detachment, tear, or other problem involving the retina (Doc. 299-3, p. 4; Doc. 285-2,
p. 16).
Soon after this examination, Barrow lost all vision in his right eye. He was seen on
February 23, 2012, by Defendant Dr. Lochhead, another onsite optometrist at Menard
(Doc. 285-1, p. 5). Based upon her examination, Dr. Lochhead referred Barrow for
evaluation on an emergent basis by an outside physician for a possible right eye retinal
detachment2 (Affidavit of Dr. Christine Lochhead, Doc. 285-3, p. 2, ¶ 6; see id. at p. 10).
The referral was approved, and Barrow was seen by Dr. Ahmad, an ophthalmologist at
Marion Eye Center, on February 24, 2012 (Doc. 285-1, p. 6; Doc. 285-3, p. 2, ¶ 7). Dr.
Ahmad determined Barrow had a detached retina in his right eye and performed
2
In his motion, Dr. Johnson implies that Barrow’s vision loss was due to a chemical agent splashing in
Barrow’s eye sometime after January 15, 2012; however, Barrow testified that Dr. Lochhead advised him it
was not related to the chemical exposure (Doc. 285-1, p. 5).
Page 3 of 24
surgery for a right eye retinal detachment on February 27, 2012 (Id.). Barrow saw Dr.
Ahmed for a follow-up exam on March 17, 2012;3 at that time, Dr. Ahmad explained that
Barrow would need two additional procedures on his right eye: one to remove a cataract
and one to remove scar tissue that had formed following surgery (Doc. 285-1, p. 7).
Barrow saw Dr. Ahmad for another follow-up appointment on April 10, 2012
(Doc. 285-1, p. 8; Doc. 284-1, p. 86). Dr. Ahmad again recommended that Barrow
undergo procedures to remove the cataract and scar tissue that developed following
surgery on his right eye (Doc. 284-1, p. 92).
In light of this recommendation, Barrow’s case was submitted by Dr. Johnson for
collegial review with Defendants Dr. Baker and Dr. Shepherd (Id. at pp. 86 and 93). The
cataract extraction was not approved because Barrow did “not meet criteria for cat
extraction” (Id. at p. 93). There is no indication that Dr. Ahmad’s recommended
membrane peel to remove the scar tissue was brought forth by Dr. Johnson or
considered by Dr. Baker or Dr. Shepherd during this review (See id.). Barrow was to see
the onsite optometrist in two months and have his case re-presented if needed (Id.). Dr.
Baker signed off on the decision as the “dedicated utilization management physician”
(Id.). Dr. Baker attests that he and Dr. Shepherd came to their decision after discussing
Barrow’s best corrected visual acuity of 20/400 in his right eye and 20/25 in his left eye,
as well as his ability to carry out his activities of daily living within the prison
environment (Doc. 287-7, pp. 2-3, ¶ 11).
It is not entirely clear when this examination took place. During his deposition, Barrow indicated he was
seen by Dr. Ahmad on March 17, 2012; however, in his response to Dr. Johnson’s motion, he indicates this
examination took place on March 7, 2012 (see Doc. 299, p. 11). Although the Court notes this discrepancy, it
finds that the precise date of this examination is not material to the issues in this case.
3
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The parties do not dispute that Dr. Johnson examined Barrow again on June 19,
2012; however, the parties dispute most of what occurred at this appointment. Dr.
Johnson asserts that he referred Barrow to an offsite ophthalmologist for right eye
membrane stripping, but informed Barrow that Wexford would not approve a right eye
cataract removal. Barrow contends that Dr. Johnson’s documentation indicates the two
removal procedures had not been approved (See Doc. 284-1, p. 87). Accordingly, Barrow
disputes that there was a June 19, 2012 referral for evaluation of membrane stripping and
cataract removal. Barrow also claims there are no documents concerning the collegial
review of this purported referral, and Barrow was not seen until August 1, 2012 by Dr.
Ahmad. Barrow’s medical records, however, indicate that Barrow’s case was presented
in collegial review on June 27, 2012 (Doc. 287-2, p. 34). Dr. Baker attests that during this
collegial review, it was determined that Barrow did not meet the criteria for cataract
extraction; however, Barrow was approved for an outside examination by a retina
specialist regarding the scar tissue in his right eye (Doc. 287-7, p. 3, ¶ 12).
Barrow also asserts that he sent a letter to Dr. Johnson dated July 24, 2012,
wherein he complained about left-eye floaters that were impairing his ability to see
(See Doc. 299-1, p. 5, ¶ 21; Doc. 284-1, pp. 57-58; Doc. 285-1, p. 8). Dr. Johnson denies ever
receiving this letter (Doc. 284-1, p. 137). However, Barrow was seen by Dr. Ahmad on
August 1, 2012 (Doc. 287-2, pp. 35-41). Dr. Ahmad diagnosed Barrow with a retinal tear
in his left eye that was repaired on the date of his appointment (Id.; Doc. 285-1, p. 9). Dr.
Ahmad also advised Barrow again of the “macular puckering” in his right eye and
explained that the longer the scar tissue remains on Barrow’s eye, the less his vision
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would improve if surgery was completed (Doc. 287-2, p. 40; Doc. 285-1, p. 9). Barrow’s
medical records also indicate that Dr. Ahmad diagnosed Barrow with a “severe NS and
PSC cataract” in his right eye and indicated he would have some vision improvement if
the cataract were removed (Doc. 287-2, p. 39).
After his appointment with Dr. Ahmad, Barrow saw Dr. Johnson for a follow-up
exam (Doc. 285-1, p. 10; Doc. 284-1, p. 88). Barrow asserts Dr. Johnson informed him
Wexford policy did not allow him to undergo the removal procedures recommended by
Dr. Ahmad (Doc. 285-1, p. 10). Dr. Johnson asserts that he referred Barrow for a right eye
pars plana vitrectomy (a procedure to remove vitreous gel from the eye) and a
three-month follow-up for the retinal tear in Barrow’s left eye (Doc. 284-1, p. 88). It is not
clear why Dr. Johnson did not refer Barrow for removal of his cataract and scar tissue
based on Dr. Ahmed’s recommendations. Barrow did not undergo any further
examinations by Dr. Johnson relevant to this lawsuit.
Dr. Johnson’s referral for a pars plana vitrectomy (“PPV”) was approved by Dr.
Baker and Dr. Shah (not a named defendant) during collegial review on August 13, 2012
(Doc. 287-2, p. 43; Doc. 287-7, p. 3, ¶ 13). Barrow was referred to Dr. Ahmad on October
31, 2012 for another examination (Doc. 285-1, p. 10). At this appointment, Dr. Ahmad
examined Barrow’s left and right eye and again recommended procedures for the
removal of his right eye cataract and scar tissue; however, he indicated that he had not
received approval to complete these procedures (Id.).
On this same date, Dr. Lochhead submitted a referral for Barrow to undergo
removal procedures for his right eye cataract and scar tissue (Doc. 285-1, p. 10;
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Doc. 285-2, p. 19; see Doc. 287-2, p. 44). In her referral, Dr. Lochhead indicates that the
procedures might improve Barrow’s visual acuity in his right eye to 20/60, but that the
membrane peel alone would only improve his visual acuity to 20/200 (this referral
appears to have been handled as an appeal of the April 18, 2012 denial of a referral for
extraction of Barrow’s right eye cataract) (Doc. 285-3, p. 3, ¶ 12; see Doc. 287-2, p. 44). On
November 6, 2012, Dr. Lochhead’s request for a referral was denied by Dr. Baker, in
consultation with Dr. Shepherd (Doc. 285-3, p. 3, ¶ 13; Doc. 287-2, p. 46). This decision
was made after discussing Barrow’s best correct visual acuity of 20/400 in his right eye
and 20/20 in his left eye and his ability to carry out his activities of daily living
(Doc. 287-7, pp. 3-4, ¶ 14; Doc. 287-2, p. 46). According to Dr. Baker, Wexford’s policy for
the management of cataracts allows for approval of cataract surgery if the inmate’s best
corrected visual acuity is 20/60 or worse in the dominant eye, or if the cataract causes
inflammation, angle closure, or medically unmanageable open angle glaucoma
(Doc. 287-7, p. 4, ¶ 15). Defendant Baker asserts that these conditions were not present in
Barrow’s case on April 18, 2012 (though he fails to assert whether these conditions were
present on November 6, 2012) (Id.). At her deposition, Dr. Lochhead testified that no test
was done to determine Barrow’s dominant eye due to the retinal detachment
(Doc. 285-2, pp. 6, 19). In other words, Dr. Lochhead explained that “[i]t would be
impossible to evaluate which of his eyes were dominant with one of them so severely
damaged” (Id. at p. 19). Significantly, there is no documentation regarding the
disapproval of the scar tissue removal.
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Barrow continued to see Dr. Lochhead for regular eye exams from October 31,
2012, to December 26, 2013 (Doc. 285-3, pp. 3-4, ¶ ¶ 14-18; see Doc. 287-3, pp. 8-12).
Barrow testified at his deposition that he had no complaints regarding the treatment
provided by Dr. Lochhead during this time, aside from the fact that she was bound to
follow Wexford’s decision regarding the recommended removal procedures.
When Barrow saw Dr. Lochhead for an examination on December 26, 2013
(Doc. 287-3, p. 11), he complained of worsening vision in his left eye. After performing
an examination, Dr. Lochhead determined that Barrow’s vision in his left eye was 20/70.
Based on this finding, Dr. Lochhead concluded that Barrow met the criteria for cataract
removal and submitted a referral for Barrow to be seen for an evaluation for cataract
extraction (Doc. 285-2, p. 13; Doc. 285-3, p. 4, ¶ 18; see Docs. 287-2, p. 47 and 287-3, p. 12).
On January 13, 2014, Dr. Lochhead’s referral was approved by Dr. Garcia, and Barrow
was sent to Dr. Unwin at Illinois Eye Surgeons on March 5, 2014 (Doc. 287-2, pp. 48-52).
Dr. Unwin recommended Barrow see a retinal specialist after which he would perform
cataract surgery (Doc. 285-1, p. 12; Doc. 285-3, p. 4, ¶ 20; see Doc. 285-3, p. 25).
Subsequently, on April 4, 2014, Dr. Lochhead submitted a referral for Barrow to
see Dr. Tarigopula at Illinois Eye Surgeons for a retinal consultation prior to cataract
surgery (Doc. 285-3, p. 5, ¶ 22). This referral was approved on April 21, 2014, and Barrow
was seen by Dr. Tarigopula on May 16, 2014 (Doc. 287-2, pp. 53-56). Dr. Tarigopula was
unable to evaluate the scar tissue on Barrow’s right eye due to the thickness of his right
eye cataract. Dr. Tarigopula recommended that Barrow undergo a procedure to remove
his right eye cataract before having his scar tissue evaluated (Doc. 285-1, p. 12).
Page 8 of 24
Dr. Tarigopula also noted that Barrow had a cataract in his left eye (Doc. 285-1, p. 12; see
Doc. 287-2, p. 54).
On June 9, 2014, Barrow was approved to undergo a removal procedure for his
right eye cataract by Drs. Fisher and Trost (Doc. 287-2, p. 57). Following some confusion
regarding which eye the cataract would be removed from (the left eye or the right eye),
Barrow’s right eye cataract was removed on June 26, 2014 (Doc. 285-1, p. 13; see Doc.
287-2, pp. 23-24). Barrow was seen by Dr. Lochhead for follow-up appointments on June
27 and July 3, 2014 (Doc. 285-1, p. 13; see Doc. 285-3, pp. 35, 37). By the July 3, 2014
examination, some vision had returned in Barrow’s right eye (Doc. 285-1, p. 13). Barrow
was scheduled to be seen by site optometry on July 17 and August 8, 2014, but the
appointments were cancelled because the facility was on deadlock (Doc. 285-3, p. 5, ¶ 27;
see pp. 38-39). On August 8, 2014, Dr. Lochhead did, however, submit a referral for
Barrow to again see Dr. Tarigopula for a consultation for a membrane peel on his right
eye (Doc. 285-1, p. 14; Doc. 285-3, pp. 6, 40). Defendant’s referral was purportedly
approved on August 14, 2014 (Doc. 285-1, p. 14).
Barrow was seen by Dr. Unwin on September 9, 2014, at Quantum Vision Center
(Doc. 287-3, pp. 15-19). At this appointment, Barrow complained of blurred vision in
both of his eyes, but indicated that the vision in his right eye was improving since his
cataract extraction (Doc. 287-3, p. 16). Barrow’s visual acuity was documented as 20/40
in his right eye and 20/50 in his left eye (Doc. 287-3, p. 17). Barrow saw Dr. Tarigopula
on September 19, 2014, during which time she again confirmed the need for a membrane
peel and indicated she would recommend the procedure (Doc. 287-3, pp. 29-33). Based
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on Dr. Tarigopula’s recommendation, Dr. Lochhead submitted a referral for Barrow to
undergo a right eye pars plana vitrectomy and membrane peel (Doc. 285-3, p. 6, ¶ 31; see
Doc. 287-3, p. 34). Barrow underwent these procedures on October 14, 2014 (Doc. 285-1,
p. 15; Doc. 285-3, p. 6, ¶ 32; see Doc. 287-3, pp. 35-38).
Barrow saw Dr. Tarigopula for a follow-up examination on October 15, 2014
(Doc. 287-3, pp. 39-41). On October 21, 2014, Barrow saw Dr. Lochhead complaining
about pain in his right eye (Doc. 285-1, p. 16; see Doc. 285-3, p. 50). Defendant Lochhead
recommended that Barrow follow-up with a retinal specialist in two days and return to
site optometry the following week (Doc. 285-3, p. 6, ¶ 32, see Doc. 285-3, p. 50). In
accordance with Dr. Lochhead’s recommendation, Barrow saw Dr. Tarigopula on
October 23, 2014 (Doc. 285-1, p. 16; Doc. 285-3, p. 7, ¶ 33). According to Barrow, Dr.
Tarigopula was concerned about some bleeding in his right eye, and she was surprised
that Barrow had not been supplied the eye drops she prescribed on October 18, 2014
(Doc. 285-1, p. 16). Dr. Tarigopula recommended that Barrow come in for a follow-up
exam in one month (Doc. 285-3, p. 7, ¶ 33). Dr. Lochhead put in a referral based on this
recommendation that was apparently approved, as Barrow saw Dr. Tarigopula again on
November 13, 2014 (Doc. 285-3, p. 7, ¶ 34; see Doc. 285-3, p. 52). Barrow testified that Dr.
Tarigopula informed him that he had scar tissue on the cataract lens in his right eye at
the November 13, 2014 examination (Doc. 285-1, p. 17).
Barrow saw Dr. Lochhead again on November 20, 2014, who noted his right eye
visual acuity was 20/50, and his left eye visual acuity was 20/30 (Doc. 285-3, p. 7, ¶ 36;
see Doc. 287-3, p. 46). Dr. Lochhead recommended that Barrow follow up again in two
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weeks (Id.). In accordance with this recommendation, Barrow saw Dr. Lochhead on
December 4, 2014 (Doc. 285-3, p. 7, ¶ 37; see Doc. 287-3, p. 47). At this examination,
Barrow’s visual acuity was 20/50 in his left eye and 20/40 in his right eye (Id.). It was
recommended that Barrow follow up in three months with site optometry (Id.). Barrow
testified at his deposition that Dr. Lochhead was consistent in scheduling Barrow for
follow-up visits, as set forth above (Doc. 285-1, p. 31).
On January 9, 2015, Dr. Lochhead submitted a referral for Barrow to present to
Quantum Vision Center for a follow-up examination; however, there is no record
regarding a review of this referral (Doc. 285-3, p. 7, ¶ 38; see Doc. 285-3, p. 56). Dr.
Lochhead submitted another referral on January 28, 2015, for an evaluation by Dr.
Unwin for a yag capsulotomy eye procedure to address a decrease in visual acuity
(Doc. 285-3, p. 8, ¶ 39; Doc. 285-3, p. 57). It is not clear what Barrow’s visual acuity was at
this time or whether the noted decrease in his visual acuity was based on a previous
finding or new information. In any event, Barrow asserts that he presented at Quantum
Vision Center on April 8, 2015 for the yag procedure, but was told that it had not been
approved and, as such, it would not be completed (Doc. 285-1, p. 17). Barrow underwent
the yag procedure on June 25, 2015 (Doc. 285-1, p. 17; see Doc. 287-3, pp. 54-58). This was
the last time Barrow was seen by an outside ophthalmology provider (Doc. 285-1, p. 19).
The Wexford Defendants assert that on July 2, 2015, soon after the yag procedure was
performed, Barrow’s best corrected vision was 20/30 in his right eye and 20/50 in his left
eye and, on October 22, 2015, it was 20/50-1 in the right eye and 20/40-20/50 in the left
eye (see Docs. 287-3, pp. 50-51).
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LEGAL STANDARDS
Summary Judgment
Summary judgment is proper only if the moving party can demonstrate that there
is no genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also
Ruffin Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005);
Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th
Cir. 2005). The moving party bears the burden of establishing that no material facts are in
genuine dispute; any doubt as to the existence of a genuine issue must be resolved
against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); see also
Lawrence v. Kenosha Cty., 391 F.3d 837, 841 (7th Cir. 2004).
A moving party is entitled to judgment as a matter of law where the non-moving
party “has failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex, 477 U.S. at 323. “[A] complete
failure of proof concerning an essential element of a nonmoving party’s case necessarily
renders all other facts immaterial.” Id. The Seventh Circuit has stated that summary
judgment is “the put up or shut up moment in a lawsuit, when a party must show what
evidence it has that would convince a trier of fact to accept its version of the events.”
Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese
Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).
Eighth Amendment Deliberate Indifference
The Supreme Court has recognized that “deliberate indifference to serious
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medical needs of prisoners” may constitute cruel and unusual punishment under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on this
claim, Barrow must show first that his condition was “objectively, sufficiently serious”
and second, that the “prison officials acted with a sufficiently culpable state of mind.”
Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005) (citations and quotation marks
omitted).
With regard to the first showing, the following circumstances could constitute a
serious medical need: “[t]he existence of an injury that a reasonable doctor or patient
would find important and worthy of comment or treatment; the presence of a medical
condition that significantly affects an individual’s daily activities; or the existence of
chronic and substantial pain.” Hayes v. Snyder, 546 F.3d 516, 522-23 (7th Cir. 2008)
(quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)); see also Foelker v.
Outagamie Cnty., 394 F.3d 510, 512-13 (7th Cir. 2005) (“A serious medical need is one that
has been diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.”).
A prisoner also must show that prison officials acted with a sufficiently culpable
state of mind, namely, deliberate indifference. “Deliberate indifference to serious
medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain.’”
Estelle, 429 U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “The infliction
of suffering on prisoners can be found to violate the Eighth Amendment only if that
infliction is either deliberate, or reckless in the criminal law sense.” Duckworth v. Franzen,
780 F.2d 645, 652-53 (7th Cir. 1985). Negligence, gross negligence, or even recklessness as
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that term is used in tort cases, is not enough. Id. at 653; Shockley v. Jones, 823, F.2d 1068,
1072 (7th Cir. 1987). Put another way, a plaintiff must demonstrate that the officials were
“aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists” and that the officials actually drew that inference. Greeno, 414 F.3d
at 653. A plaintiff does not have to prove that his complaints were “literally ignored,”
but only that “the defendants’ responses were so plainly inappropriate as to permit the
inference that the defendants intentionally or recklessly disregarded his needs.” Hayes,
546 F.3d at 524 (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)).
DISCUSSION
Defendants Dr. Johnson, Dr. Lochhead, Dr. Baker, Dr. Shepherd, and Wexford all
assert they are entitled to judgment as a matter of law. Notably, Defendants do not
contend that Barrow’s eye conditions fail to meet the objective requirement of a “serious
medical need” as explained above. Thus, the Court finds that element has been conceded
and considers only whether Defendants were deliberately indifferent. The Court
considers each Defendant’s argument in turn, as set forth below.
A.
Dr. Eric Johnson
Dr. Johnson contends that summary judgment in his favor is appropriate as he
repeatedly provided treatment to Barrow that met the applicable standard of care. Dr.
Johnson claims there is no evidence that he inflicted cruel and unusual punishment on
Barrow. In support of his motion, Dr. Johnson makes three primary arguments. First, he
asserts there is no evidence Barrow complained of floaters during his January 10, 2012
examination. Second, Dr. Johnson contends he appropriately evaluated, monitored, and
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treated Barrow’s eye conditions on the four occasions he saw Barrow between January
10, 2012, and August 1, 2012. Finally, Dr. Johnson asserts Barrow has failed to provide
any evidence that his conduct caused the constitutional deprivations of which Barrow
complains.
Dr. Johnson’s arguments miss the mark. With regard to his first point, Barrow
has produced sufficient evidence to create a genuine issue of fact as to whether he
complained about floaters to Dr. Johnson at the January 10, 2012 examination. This fact is
material to the question of whether Dr. Johnson acted appropriately and with adequate
care in rendering treatment for Barrow’s eye conditions, as it is undisputed that floaters
can signal a detachment, tear, or other problem in involving the retina.
Dr. Johnson is correct that “[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.” Snipes v. DeTella, 95 F.3d 586, 592
(7th Cir. 1996) (quotation omitted). However, this Circuit also recognizes that a
physician, in exercising his or her professional judgment, must make decisions that are
“fact-based with respect to the particular inmate, the severity and stage of his condition,
the likelihood and imminence of further harm, and the efficacy of available treatments.”
Roe v. Elyea, 631 F.3d 843, 860 (7th Cir. 2011) (citing Collingon v. Milwaukee Cty., 163 F.3d
982, 989 (7th Cir. 1998) (“A plaintiff can show that the professional disregarded the need
only if the professional’s subjective response was so inadequate that it demonstrated an
absence of professional judgment, that is, that no minimally competent professional
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would have so responded under those circumstances.”)).
When viewing the evidence before the Court in the light most favorable to
Barrow, the Court finds there is a question of fact as to whether Dr. Johnson exercised his
professional judgment in addressing Barrow’s complaints of floaters and rendering
adequate treatment for his eye conditions. In particular, there is evidence that Barrow
complained of floaters at his eye appointment on January 10, 2012, and again by way of
letter on July 24, 2012, but Dr. Johnson failed to address these complaints. Significantly,
soon after Barrow lodged his complaints to Dr. Johnson, he was diagnosed with either a
detached or torn retina (first in his right eye and then in his left eye). The temporal
proximity of Barrow’s complaints regarding floaters and a subsequent finding of retinal
issues creates a question of fact as to whether Dr. Johnson was deliberately indifferent in
failing to adequately evaluate Barrow’s complaints. Accordingly, Dr. Johnson is not
entitled to judgment as a matter of law.
B.
Dr. Christine Lochhead
Dr. Lochhead seeks judgment in her favor arguing there is no evidence that her
regular evaluation and treatment of Barrow’s eye conditions, coupled with her many
referrals for Barrow to see outside specialists for additional care, equates with an
unnecessary, wanton infliction of pain or a reckless disregard of Barrow’s vision needs.
The Court agrees.
Although Barrow disputes much of Dr. Lochhead’s statement of facts, most of the
disputes are not material to the issue of whether Dr. Lochhead acted with deliberate
indifference in her treatment of Barrow’s eye conditions. Indeed, most of Barrow’s
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complaints attributable to Dr. Lochhead relate to matters outside of her control,
including approval of various referrals to outside specialists, lapses in the provision of
prescription medications that she had prescribed, scheduling of appointments, and care
attributable to other on-site providers. Accordingly, the Court declines to reference each
dispute mentioned by Barrow. In any event, the material facts, when viewed in Barrow’s
favor, establish that Dr. Lochhead not only saw and examined Barrow regularly, but
consistently referred Barrow for additional consultation and procedures with outside
providers. While Dr. Lochhead’s referrals were not always approved by the utilization
review committee, these matters were outside her control.
Although Barrow clearly disagrees with Dr. Lochhead’s course of treatment and
apparently was frustrated by the delays in receiving approval for various procedures, as
noted above, it is well established that his mere dissatisfaction with a prescribed course
of treatment does not equal a constitutional claim unless the treatment was “blatantly
inappropriate.” Snipes, 95 F.3d at 592. Making such a showing is not easy as “[a] medical
professional is entitled to deference in treatment decisions unless ‘no minimally
competent professional would have so responded under those circumstances.’” Pyles v.
Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (quoting Sain v Wood, 512 F.3d 886, 894-95 (7th
Cir. 2008) (other quotation omitted)). In other words, federal courts will not interfere
with a doctor’s decision to pursue a particular course of treatment unless that decision
represents so significant a departure from accepted professional standards or practices
that it calls into question whether the doctor actually was exercising his professional
judgment. Id. (citations omitted).
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There is no evidence that Dr. Lochhead’s prescribed course of treatment was
“blatantly inappropriate.” Rather, the evidence demonstrates that Dr. Lochhead
examined Barrow multiple times and referred Barrow for a variety of procedures on
multiple occasions. Although the referrals were not always approved, the record fails to
demonstrate that any delay was attributable to Dr. Lochhead. Accordingly, the Court
finds that Dr. Lochhead’s treatment of Barrow was grounded in professional judgment
and was reasonable. See Jackson v. Kotter, 541 F.3d 688, 698 (7th Cir. 2008). For the reasons
mentioned above, Dr. Lochhead is entitled to judgment as a matter of law.
C.
Dr. Mark Baker
Dr. Baker seeks summary judgment on Barrow’s deliberate indifference claim,
asserting that Barrow received immediate evaluation and treatment for urgent
ophthalmologic conditions and was never denied care.
With regard to Dr. Baker, the evidence viewed in Barrow’s favor establishes that
this Dr. Baker was the Strategic Clinical Initiatives Director for Wexford from August 29,
2011, to July 3, 2013, and, in this role, conducted Wexford’s utilization management
process meetings known as “collegial review” via telephone with on-site correctional
facility medical directors (Doc. 287-7, p. 1, ¶¶ 2, 4). With regard to Barrow in particular,
Dr. Baker received a number of referrals from Menard’s on-site optometrists.
Specifically, Dr. Baker was involved in the following referral reviews:
April 18, 2012 non-approval for a request that Barrow be seen by an
outside ophthalmologist for evaluation of a right eye cataract and scar
tissue removal;
June 27, 2012 non-approval for a request that Barrow be evaluated for a
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right eye cataract and an approval for evaluation by a retinal specialist
regarding right eye scar tissue;
August 13, 2012 approval for Barrow to undergo a pars plana
vitrectomy of the right eye following a specialist’s recommendation;
and
November 6, 2012 denial of an appeal of the April 18, 2012
non-approval for evaluation of Barrow’s right eye cataract and scar
tissue removal.
Dr. Baker attests that the decisions disapproving referrals for Barrow to undergo
evaluation for right eye cataract extraction and/or scar tissue removal on April 18, 2012,
June 27, 2012, and November 6, 2012, were based on Barrow’s “near normal visual acuity
in his left eye” and his “ability to safely perform his activities of daily living,” which led
to a finding that Barrow did not meet the criteria for cataract extraction. Dr. Baker asserts
that these decisions comport with Wexford’s policy for the management of cataracts that
allows for surgery if the inmate’s best corrected visual acuity is 20/60 or worse in the
dominant eye, or if the cataract causes inflammation, angle closure, or medically
unmanageable open angle glaucoma. In this instance, Dr. Baker noted that Barrow’s best
corrected visual acuity was 20/400 in his right eye and 20/25 in his left eye.
In light of this evidence, Dr. Baker’s argument that Barrow received immediate
evaluation and treatment for urgent ophthalmologic conditions and was never denied
care is problematic. Most certainly, Dr. Baker denied Barrow surgical treatment and
outside evaluation for his right eye cataract and right eye scar tissue on multiple
occasions. Although Dr. Baker cites Wexford policy to support this decision, there is a
question of fact as to whether this denial was appropriate and whether it was based on
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an analysis of the severity and stage of Barrow’s condition, the likelihood and
imminence of further harm, and the efficacy of available treatments. See Roe, 631 F.3d at
860. Indeed, on the utilization review forms completed and signed by Dr. Baker, there is
no mention of the analysis undertaken to deny Barrow’s referral. At most, the only
reason provided was that Barrow “does not meet criteria for cat extraction.” The Court
cannot discern how this is the case, because Wexford policy appears to require a
determination as to which eye is the patient’s dominant eye and, as testified by Dr.
Lochhead, no test could ascertain Barrow’s dominant eye due to his severe eye damage.
Furthermore, the record is bereft of any evidence that Dr. Baker considered, and
rendered his professional judgment, in denying Barrow’s referral for outside evaluation
and surgical removal of scar tissue present in his right eye.
For these reasons, a reasonable jury could find that Dr. Baker’s repeated denial of
the on-site optometrists’ referrals for right eye cataract extraction and scar tissue
removal were not clearly within boundaries of accepted professional standards or based
on the exercise of professional judgment. See Pyles, 771 F.3d at 409 (citations omitted).
Accordingly, the Court finds there is a question of fact as to whether Dr. Baker was
deliberately indifferent, and he is not entitled to judgment as a matter of law.
D.
Dr. Robert Shearing
Similar to Dr. Baker, Dr. Shearing seeks summary judgment on Barrow’s
deliberate indifference claim on the basis that Barrow received immediate evaluation
and treatment for urgent ophthalmologic conditions and was never denied care.
The Court’s findings with regard to Dr. Baker are similar to its findings with
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regard to Dr. Shearing. More specifically, the evidence viewed in Barrow’s favor
establishes that Dr. Shearing engaged in collegial review with Dr. Baker on April 18,
2012, June 27, 2012, and November 6, 2012, and denied referrals for Barrow to undergo a
procedure for removal of his right eye cataract and scar tissue.
As set forth above regarding Dr. Baker, there is a similar question of fact as to
whether Dr. Shearing exercised his professional judgment in denying Barrow these
procedures and relying on Wexford’s cataract removal policy. Dr. Shearing, therefore, is
not entitled to judgment as a matter of law.
E.
Wexford Health Sources, Inc.
Barrow’s deliberate indifference claim against Defendant Wexford is premised on
its alleged utilization of a “one good eye” policy and adoption of practices resulting in a
prioritization of “cost over care.”
As articulated by the Seventh Circuit, where a private corporation has contracted
to provide essential government services, such as health care for prisoners, the private
corporation cannot be held liable under § 1983 unless the constitutional violation was
caused by an unconstitutional policy or custom of the corporation itself. Shields v. Illinois
Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014); see also Monell v. Dep’t of Social Servs. of City
of New York, 436 U.S. 658 (1978). Accordingly, in order for Barrow to recover from
Wexford, he must offer evidence that his injury was caused by a Wexford policy,
custom, or practice of deliberate indifference to medical needs, or a series of bad acts that
together raise the inference of such a policy. Id. at 796. Also, Barrow must show that
policymakers were aware of the risk created by the custom or practice and must have
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failed to take appropriate steps to protect him. Thomas v. Cook Cty. Sheriff’s Dept., 604 F.3d
293, 303 (7th Cir. 2009).
Wexford contends that it is entitled to judgment as a matter of law on Barrow’s
deliberate indifference claim because Barrow has failed to prove the existence of a policy
or custom that inflicted an injury on Barrow. More specifically, Wexford asserts that
money is never a consideration in regards to providing medical care, and its policy on
the management of cataracts is merely a guide for providers to determine when an
inmate could be referred for cataract extraction and is not intended to replace providers’
clinical judgment. As the Court finds insufficient evidence in the record to establish that
Barrow’s care (or lack thereof) was driven by profit motives or “cost over care,” it
declines to engage in a protracted analysis on this issue. The Court takes a careful look at
Barrow’s allegations regarding a “one eye policy,” however, based on the evidence in
the record.
The evidence before the Court indicates that Wexford’s policy regarding cataract
removal allows for approval of cataract surgery if the inmate’s best corrected visual
acuity is 20/60 or worse in the dominant eye, or if the cataract causes inflammation,
angle closure, or medically unmanageable open angle glaucoma (Doc. 287-7, p. 4, ¶ 15).
This statement of the Wexford policy, attested to by Dr. Baker, appears to be an accurate
recitation of the undated written policy that describes Wexford’s position as follows:
Consideration of cataract surgery is indicated when maximally corrected
binocular Snellen visual acuity is 20/60 or worse in the dominant eye and
such surgery offers a reasonable likelihood in visual function;
Consideration of cataract surgery is indicated when the lens opacity
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inhibits optimal management of posterior segment ocular disease or the
lens causes inflammation, angle closure, or medically unmanageable
open-angle glaucoma (Doc. 307-4, pp. 2-3, sealed).
A plain reading of this policy would allow Wexford to deny an inmate cataract
surgery so long as they have adequate (20/60) vision in their dominant eye, without
regard to the visual acuity of the other, cataract-affected eye (with some exceptions
provided for particular circumstances, as set forth above). Although Wexford takes issue
with Barrow’s designation of this policy as the “one good eye” policy, this description is
not unfounded. The Court finds adequate evidence in the record that Wexford’s
subscription to this policy caused Barrow injury in that he was made to wait
approximately 27 months for removal of his right eye cataract due to this policy (and, as
a result, was unable to clearly see out of his eye for this amount of time). Because of the
obviousness of this circumstance, the Court further finds that Wexford knew or should
have known of the risk created by its policy, but failed to take appropriate steps to
protect Barrow. For these reasons, the Court finds that Defendant Wexford failed to meet
its burden in showing that it is entitled to judgment as a matter of law. Accordingly,
Barrow’s deliberate indifference claim against Defendant Wexford shall proceed.
CONCLUSION
For the reasons set forth above, Defendant Dr. Eric Johnson’s motion for
summary judgment (Doc. 284) is DENIED; Defendant Dr. Christine Lochhead’s motion
for summary judgment (Doc. 285) is GRANTED; and Defendant Wexford Health
Sources, Inc., Dr. Robert Shearing, and Dr. Mark Baker’s motion for summary judgment
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(Doc. 286) is DENIED. Defendant Dr. Christine Lochhead is DISMISSED with
prejudice.
Barrow shall proceed in this action on his claim of deliberate indifference against
Defendants Dr. Johnson, Dr. Baker, Dr. Shearing, and Wexford. The Warden of Menard
remains a defendant for purposes of injunctive relief.
IT IS SO ORDERED.
DATED: May 5, 2017
s/Nancy J. Rosenstengel__________
NANCY J. ROSENSTENGEL
United States District Judge
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