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December 9, 2005.


The opinion of the court was delivered by: GERALDINE BROWN, Magistrate Judge


Plaintiff Edward Holmes ("Holmes") brought this action pursuant to 42 U.S.C. § 1983, alleging that Dr. Kul Sood ("Dr. Sood") and Wexford Health Sources, Inc. ("Wexford") (collectively, "Defendants") violated Holmes' civil rights by deliberate indifference to his medical needs when Holmes was incarcerated at the Will County Adult Detention Facility ("WCADF"). (Second Am. Compl. ¶¶ 1, 5-19.) [Dkt 33.] Particularly, Holmes claims that Defendants' failure to treat his abdominal pain and distention properly necessitated subsequent surgery and treatment. (Id.) Holmes also alleges pendent state law claims of intentional infliction of emotional distress and respondeat superior. (Id. ¶¶ 20-28.) Defendants have moved for summary judgment. [Dkt 66.] The parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Dkt 22, 23.] For the reasons set forth below, Defendants' motion for summary judgment is granted as to Holmes' intentional infliction of emotional distress and respondeat superior claims, granted as to Holmes § 1983 claim against Wexford, and denied as to Holmes' § 1983 claim against Dr. Sood. FACTUAL BACKGROUND*fn1

A. Relationship Between Wexford and Dr. Sood

  Wexford contracted with WCADF to provide medical care to the inmates. (Pl.'s LR Resp. ¶ 2.) In 2001, Wexford employed a full time nursing staff and a Medical Director/physician at WCADF. (Defs.' LR Resp. ¶ 3; Pl.'s LR Ex. E at § 2.1.) Dr. Sood was the Medical Director for WCADF on a contract basis with Wexford, working approximately 12 hours a week at WCADF. (Pl.'s LR Resp. ¶ 3; Defs.' LR Resp. ¶ 5.)

  The medical unit at WCADF also had eight or nine registered nurses who assisted the doctor, administered medication, responded to inmate requests, and implemented the doctor's orders. (Pl.'s LR Ex. C, Dr. Kul Sood Dep. Vol. I at 87; Pl.'s LR Ex. N, Affidavit of Christina Keenan ¶ 3.) The nurses did not have decision-making authority for the treatment of patients; rather, the decisions for treatment plans and whether to send patients for outside medical care were the responsibility of Dr. Sood. (Keenan Aff. ¶ 3.) In 2001, Dr. Sood had sole decision-making responsibility for ordering tests for the inmates at WCADF. (Sood Dep. Vol. I at 76-77.) As the Medical Director, Dr. Sood had final responsibility for supervising medical and treatment decisions for the care provided to patients at WCADF, and was responsible for Holmes' medical care and treatment while he was detained at WCADF. (Defs.' LR Resp. ¶ 9; Pl.'s LR Ex. O ¶ 31.)*fn2 B. Holmes' Health Prior to Incarceration

  Prior to his incarceration, Holmes had chronic abdominal distention, and suffered from chronic abdominal pain and a chronic orthopedic condition. (Defs.' LR Ex. C, Dr. Saeed Darbandi Dep. at 52; Defs.' LR Resp. ¶ 10.) On July 28, 2001, prior to his incarceration, Holmes was seen by Dr. Saeed Darbandi who found that Holmes had a mildly distended abdomen with some lower abdominal tenderness, no guarding, no rebound tenderness, and no masses. (Darbandi Dep. at 31-32.) The finding of no guarding and rebound tenderness means that the patient did not require immediate surgery. (Id.)

  C. Holmes' Health During Incarceration

  Holmes was incarcerated at WCADF from September 13, 2001 to October 12, 2001. (Pl.'s LR Resp. ¶¶ 1, 6.) During that time, Holmes suffered from stomach pain, constipation, diarrhea, nausea, vomiting, and difficulty eating and digesting food. (Defs.' LR Resp. ¶ 11; Defs.' LR Ex. B, Edward Holmes Dep. at 126-27, 130-32.)*fn3 At the time he was incarcerated, Holmes told Wexford employees that he had chronic pain, recently had a colostomy reversed, and his stomach hurt.*fn4 (Pl.'s LR Resp. ¶ 7.) At that time, Holmes' abdomen was distended and he provided a history of abdominal distention for years. (Id. ¶ 8; Holmes Dep. at 91-92.) Holmes also informed the medical staff that he had a history of colon cancer. (Defs.' LR Resp. ¶ 32.) Holmes did not actually have colon cancer, but testified that he had previously been told by a physician that he did. (Id.) Holmes was taking pain medication, including Vicoprofen and Methadone at the time he entered WCADF. (Holmes Dep. at 91-92; 98-100.) Dr. Sood authorized the continuation of Vicoprofen (a narcotic pain reliever), which had been prescribed by Holmes' outside doctor as a pain reliever. (Pl.'s LR Resp. ¶ 37; Defs.' LR Ex. F, Dr. Kul Sood Dep. Vol.II at 38.) Vicoprofen can cause constipation and abdominal problems. (Sood Dep. Vol. II at 38.) The Vicoprofen was not prescribed to treat Holmes' abdominal condition. (Id. at 38-39.)

  During his detention at WCADF, Holmes was visibly ill. (Defs.' LR Resp. ¶ 17; Holmes Dep. at 119, 224.) The nurses saw Holmes every day. (Defs.' LR Resp. ¶ 19; Holmes Dep. at 94-95.) Dr. Sood personally saw Holmes on several occasions and was regularly informed of his condition through review of his medical chart and phone calls from the nursing staff. (Defs.' LR Resp. ¶ 19; Keenan Aff. ¶ 8; Sood Dep. Vol.II at 40-41.) On September 14, 2001, Holmes was seen by medical personnel at WCADF, complaining of chest pain, and the medical staff noted that his abdomen was very distended with pain of an unknown etiology. (Pl.'s LR Resp. ¶ 38; Defs.' LR Resp. ¶ 35.) He also complained of chronic hip, abdominal and intestinal pain, and fistula drainage, as well as a history of carcinoma with multiple surgeries. (Pl.'s LR Resp. ¶ 39; Defs.' LR Resp. ¶ 36.) On the other hand, Holmes reported that he had a good bowel movement and was passing gas. (Pl.'s LR Resp. ¶ 39.) His abdomen was reported as distended but he had good bowel sounds. (Id.) As a result of this examination, Dr. Sood prescribed "continue present management." (Id. ¶ 40.) Dr. Sood prescribed Clonidine (a blood pressure medicine) twice daily for Holmes, unrelated to Holmes' abdominal condition. (Defs.' LR Resp. ¶ 37.)

  On September 15, 2001, Dr. Sood was informed of Holmes' condition and he prescribed Vicoprofen for pain. (Id. ¶ 38.)

  On September 16, 2001, Holmes submitted a written inmate health service request complaining of a fistula in his rectum, which is a chronic condition, a history of carcinoma, constipation, vomiting, and bleeding in his rectum. (Pl.'s LR Resp. ¶ 42; Defs.' LR Resp. ¶¶ 39, 40.) That day, a nurse recorded that Holmes complained of "constipation for a couple of []" (sentence was not completed), as well as reversal of colostomy. (Defs.' LR Resp. ¶ 40.) When inmates complain of constipation for a couple of days, the nurses follow a standard protocol of giving the inmate milk of magnesia. (Pl.'s LR Resp. ¶ 42.) Dr. Sood reviewed the September 16, 2001 request for medical care, and Holmes was given milk of magnesia. (Defs.' LR Resp. ¶ 41.) However, Dr. Sood testified that if there had been a sudden onset of abdominal distention, nausea, vomiting, constipation, and low bowel sounds, he would have sent Holmes to the hospital. (Id. ¶ 77; Sood Dep. Vol. II at 120-21.)

  Dr. Sood conducted a physical examination of Holmes on September 17, 2001 and noted that his abdomen was "questionable to evaluate," meaning "hard to evaluate at that time," because of distention and/or tenderness. (Sood Dep. Vol.II at 57-58, 65-66.) During the physical examination, Dr. Sood found that Holmes' abdomen was abnormal, "tender-tense" with diffuse tenderness, and "masses, questionable to evaluate." (Pl.'s LR Resp. ¶ 43; Sood Dep. Vol.II at 65.) Dr. Sood prescribed Colace (a stool softener) and Zantac (an antacid) twice a day for thirty days for abdominal discomfort. (Pl.'s LR Resp. ¶ 44; Defs.' LR Resp. ¶ 45.) Even though Dr. Sood had difficulty evaluating Holmes' abdomen due to distention and/or diffuse tenderness, he did not take any other steps to evaluate Holmes' abdomen. (Defs.' LR Resp. ¶¶ 21, 43; Sood Dep. Vol.II at 171-72.) Because of Holmes' medical history and symptoms it was important to evaluate for masses or enlargements of the intestine. (Id. ¶ 44.) Dr. Sood could have evaluated Holmes' intestinal tract through diagnostic studies such as x-rays, obstructive series films, or ultrasound. (Id. ¶ 22.) Dr. Himmelman, one of Holmes' experts, believes that after that examination, Dr. Sood should have sent Holmes to have an obstructive series of abdominal x-rays and surgical consultation. (Defs.' LR Ex. E, Robert Himmelman Dep. at 103.) However, Dr. Himmelman admitted that on September 17, 2001, Holmes apparently did not have an acute surgical abdomen. (Id. at 105.)

  On September 21, 2001, Dr. Sood was informed of Holmes' condition and he continued the prescription for Vicoprofen. (Defs.' LR Resp. ¶ 50.) Dr. Sood also reviewed Holmes' medical records from Silver Cross Hospital and learned that Holmes had a chronic abdominal condition, including a history of sigmoid stricture, pancreatitis, a previous colostomy, and ileus.*fn5 (Id. ¶¶ 46, 47.) Through those records, Dr. Sood learned that Holmes had been hospitalized in July 2001 with complaints of abdominal pain and nausea, and that a dilation of Holmes' colon at that time was successfully treated without surgical intervention by adjusting his medications, providing intravenous fluids, enemas and a nasogastric tube. (Id. ¶¶ 48, 92; Pl.'s LR Ex. M, Holmes' medical records W001004-W001014.)

  On September 26, 2001, Nurse Keenan noted that Holmes complained of abdominal pain, denied constipation, had a normal bowel movement, and had run out of medication. (Sood Dep. Vol. II at 77-78.) Dr. Sood physically examined Holmes on September 26, 2001, and his notes document Holmes' complaints of abdominal pain and distention. (Defs.' LR Resp. ¶ 51.) Dr. Sood testified that Holmes was not in acute distress, his vital signs were stable, his abdomen was distended, bowel sounds were active, and there was no guarding or rebound. (Sood Dep. Vol.II at 79.) At that time, Dr. Sood prescribed Tylenol 3 for pain. (Defs.' LR Resp. ¶ 52; Himmelman Dep. at 84.) Dr. Sood recorded that Holmes' abdomen was "very hard to evaluate organomegaly."*fn6 (Id.) Dr. Sood was unable to palpitate Holmes' liver or spleen or any specific organ or mass in the abdominal cavity. (Pl.'s LR Ex. P, Dr. John Clark Dep. at 100.) Even though Dr. Sood currently has no memory of how distended Holmes' abdomen was on September 26, 2001, he testified that his examination that day showed that Holmes was stable and not in acute distress. (Sood Dep. Vol. II at 79-81.) However, Dr. Himmelman testified that there is some "incongruence between what . . . [Dr. Sood] said in his examination and how he treated [Holmes]," because even though Dr. Sood noted that Holmes was not in any acute distress, he still prescribed Tylenol 3 for pain. (Himmelman Dep. at 84-85.)

  On September 27, 2001, Dr. Sood was informed about Holmes' condition and prescribed Vicoprofen and Tylenol 3. (Defs.' LR Resp. ¶ 54.)

  On September 30, 2001, Holmes refused to take Colace (a stool softener) because it was "making [him] want to vomit." (Pl.'s ...

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