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Gomez v. Snyder

September 30, 2008

JUAN GOMEZ, PLAINTIFF,
v.
DONALD N. SNYDER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCuskey Chief United States District Judge

MEMORANDUM OPINION AND ORDER

Before the court are the Defendants, Dr. Ikechukwu Uzoaru, Wexford Health Sources, Inc., and Dr. David E. Rowe's revised summary judgment motion [110], the Pplaintiff's response [118] and the Defendants' reply [120]. The Defendants move for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure.

Standard

Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

"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 events. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If [the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e).

Affidavits must be based on the personal knowledge of the affiant and "set out facts that would be admissible in evidence." Fed. R. Civ. P. 56(e) (emphasis added). Personal knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng. Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). "But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be based on flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.

Background

The Plaintiff claims that the Defendants Dr. Uzoaru, Dr. Rowe, and Wexford Health Sources, Inc. were deliberately indifferent to his serious medical needs. Plaintiff claims to suffer from low back pain and from ankle clonus (the shaking in his ankles) as a result of suffering from herniated discs in his neck. Plaintiff believes that he should have been diagnosed with this condition earlier and that the care and treatment provided to him in the form of an MRI, a neurology consult, and a steroid injection should have been provided to him sooner and that the delay caused by an initial denial of the procedures by Wexford constituted deliberate indifference to a serious medical need by Wexford, Dr. Rowe, and Dr. Uzoaru. Defendants deny that the Plaintiff was treated with deliberate indifference and further deny that Plaintiff was treated inappropriately with respect to any medical condition from which he may suffer. Defendants also deny that Plaintiff was injured as a result of the minor delay in obtaining the medical tests and steroid injections recommended by Plaintiff's physicians. For these reasons, Defendants believe summary judgment is appropriate.

Material Facts Claimed to be Undisputed*fn1

1. Plaintiff, Juan Gomez, is currently incarcerated at the Dixon Correctional Center.

2. Plaintiff was seen by Dr. Ike Uzoaru, the Medical Director at the Danville Correctional Center during the time frame referenced in Plaintiff's Complaint.

3. The Plaintiff's claim against Dr. Uzoaru is based on inadequate medical care and deliberate indifference with respect to Plaintiff's various medical conditions. (See Deposition of Juan Gomez, p. 8.)

4. Plaintiff suffers from ankle clonus. (Gomez Deposition, p. 9; see also Affidavit of Dr. Uzoaru, attached hereto as Exhibit A.)

5. Plaintiff was advised that one of the possible diagnoses for his ankle clonus was multiple sclerosis. (Gomez Deposition, p. 9.)

6. Dr. Uzoaru recommended two (2) MRIs which were performed, but came back inconclusive with respect to multiple sclerosis. (Gomez Deposition, pp. 9-10.)

7. In 2003, the Plaintiff was sent to the University of Illinois Chicago where he was diagnosed with herniated discs in his neck. (Gomez Deposition, p. 10.)

8. Plaintiff believes that Dr. Uzoaru should have diagnosed him with the herniated disc sooner. (Gomez Deposition, p. 10.)

9. Plaintiff also complains that he did not receive a back brace. (Gomez Deposition, p. 10.)

10. However, no doctor has indicated that Plaintiff's herniated disc arose from the fact that he did not have a back brace. (Gomez Deposition, pp. 10-11.)

11. Plaintiff admits that Dr. Uzoaru recommended that an MRI be performed, that the Plaintiff see a neurologist, and that steroid injections be given to the inmate. (Gomez Deposition, pp. 11-13.)

12. Plaintiff did in fact receive care and treatment recommended by Uzoaru in the form of an MRI, a neurology consult, and the steroid injections. (Gomez Deposition, pp. 11-13.)

13. Plaintiff's complaint is that his care and treatment was delayed as a result of the initial denials by Wexford. (Gomez Deposition, pp. 11-13; see also Exhibit A.)

14. Plaintiff's claim against Wexford is also based upon its denial and delay of the requests for approval of medical care recommended by Dr. Uzoaru and other medical specialists. (Gomez Deposition, p. 17.)

15. Despite Plaintiff's contentions, no medical provider has indicated to him that if the MRI, neurology visit, and epidural steroid injection were performed sooner, his overall condition would be any different. (Gomez Deposition, p. 18.)

16. Plaintiff was provided with pain medication for his complaint regarding his low back pain. At the time of his deposition, the Plaintiff was not satisfied with the care and treatment being provided to him at the Danville Correctional Center subsequent to the diagnosis of herniated discs. (Gomez Deposition, pp. 13-14.)

17. Plaintiff is capable of exercising. (Gomez Deposition, p. 18.)

18. While the Plaintiff claims Dr. Uzoaru began treating him on September 23, 1999, Dr. claims he began treating Mr. Gomez on January 11, 2001. (Exhibit A, ¶ 4; Exhibit 1, p. 2, Plaintiff's Exhibit B, p. 1.)

19. Dr. Uzoaru's note from January 11, 2001 reads as follows: Mr. Gomez says his problems are not resolved. He has great hesitancy. His problem started when he was asked to "drop" by security officer. (Exhibit A, ¶ 5; Exhibit 1, p. 2) He does not have a large prostate. I treated him for prostatitis. I think he has a nervous bladder. (Exhibit A, ¶ 5; Exhibit 1, p. 3.)

20. Mr. Gomez made these complaints to Dr. Uzoaru. Based upon Dr. Uzoaru's examination of Mr. Gomez, Dr. Uzoaru believed he had prostatitis. Dr. Uzoaru treated him with Urecholine, a medication for this condition. (Exhibit A, ¶ 6; Exhibit 1, p. 3.)

21. Dr. Uzoaru's reference to "hesitancy" in Mr. Gomez's note relates to hesitancy or difficulties with urinating when asked to "drop" by security, which makes reference to a request by the security office for an inmate, Mr. Gomez in this instance, to provide a urine sample for urine testing. (Exhibit A, ¶ 7.)

22. Mr. Gomez was seen by a nurse on February 22, 2001 for complaints of back pain. The nurse referred him to Dr. Uzoaru on February 22, 2001. Dr. Uzoaru's note from that date reads as follows:

S (subjective): LBP (low back pain). Dystonic bladder (which is a nervous bladder).

A (assessment): Med refill.

P (plan): Urecholine, Naprosyn. (Exhibit A, ¶ 8; Exhibit 1, p. 6.)

23. On February 22, 2001, Mr. Gomez continued to make complaints of low back pain. Dr. Uzoaru diagnosed him with a dystonic or nervous bladder. Dr. Uzoaru provided him with a refill of his medications, including the Urecholine and Naprosyn for pain. Mr. Gomez was also going to be seen by an orthopedic physician in the near future. (Exhibit A, ¶ 9.)

24. Mr. Gomez was evaluated on March 22, 2001 by Dr. Bavishi, the orthopedic physician. (Exhibit A, ¶ 10; Exhibit 1, p. 5.) Dr. Bavishi performed an evaluation and made recommendations. With the exception of back brace, those recommendations were carried out by Dr. Uzoaru's recommendations. (Exhibit A, ¶ 10, Plaintiff's Exhibit A, p. 3.)

25. Dr. Uzoaru next saw Mr. Gomez on May 9, 2001. His note from that date reads as follows:

S (subjective): F/U (follow-up). Back problem. Seen by ortho on 3/22/01. Ordered exercise, back brace, low bunk. Patient also complaining about benching 275*fn2 pounds down from 325 pounds.

Lifts weights 5 days a week A (assessment): LB (low back) strain.

P (plan): Low bunk, back brace, HIV test-RPR (syphilis) test. (Exhibit A, ¶ 11; Exhibit 1, p. 7.)

26. On May 9, 2001, Dr. Uzoaru saw Mr. Gomez and evaluated him for his complaints of ongoing back problems. Dr. Uzoaru noted the orders by the orthopedic physician and followed through with them per his plan. At that time, Mr. Gomez complained that he was able to lift 275 pounds down from 325 pounds. He was lifting 5 days per week at this time. Pursuant to his complaints and his abilities, Dr. Uzoaru diagnosed Mr. Gomez with low back strain. (Exhibit A, ¶ 12.)

27. The next time Dr. Uzoaru saw Mr. Gomez was on May 18, 2001. On that date, his note reads as follows:

S (subjective): Chronic LBP (low back pain) and shaking legs. O (objective): CNS (central nervous system) DTR (deep tendon reflexes) 3 LE (lower extremities), 2 UE (upper extremities). A (assessment): LB (low back) strain.

P (plan): Refer to neurology for NSC (nerve conduction studies)/EMG. Tylenol. (Exhibit A, ¶ 13; Exhibit 1, p. 9.)

28. Pursuant to his examination and evaluation of Mr. Gomez on May 18, 2001, Dr. Uzoaru found that Mr. Gomez continued to have low back strain. However, based upon his ankle clonus, which can occur during examination or while walking, it was Dr. Uzoaru's opinion that Mr. Gomez should be referred to neurology for further neurological studies. Dr. Uzoaru followed through with these referrals. (Exhibit A, ¶ 14; Exhibit 1, p. 9.)

29. Dr. Uzoaru's personal evaluation found Mr. Gomez within normal limits; however, the plaintiff did have some positive findings on examination in the form of the ankle clonus. Exhibit A, ¶ 15.)

30. As Dr. Uzoaru was unsure of the cause of the ankle clonus, Dr. Uzoaru referred the patient to see neurology for an opinion regarding this. (Exhibit A, ¶ 16.)

31. Mr. Gomez was sent to Dr. Tazudeen, a neurologist in Danville, Illinois. (Exhibit A, ¶ 17; Exhibit 1, p. 90.)

32. Dr. Tazudeen performed an EMG/nerve conduction study. Dr. Tazudeen's report under the "Impression" section states as follows:

EMG/NC (nerve conduction) studies of both LES (lower extremities) are normal. No neuropathy or root irritation seen. (Exhibit A, ¶ 18; Exhibit 1, p. 90.)

33. Mr. Gomez then followed up with Dr. Bavishi, the orthopedic physician, on June 28, 2001. Dr. Bavishi noted that the patient had been seen by the neurologist. He performed an X-ray of the patient's lumbar spine. His recommendation was to continue with the elastic back support and back exercises. Dr. Uzoaru had no reason to dispute Dr. Bavishi's recommendations. (Exhibit A, ¶ 19; Exhibit 1, p. 10.)

34. Dr. Uzoaru personally next saw Mr. Gomez on July 15, 2001. His note from that date reads as follows:

S (subjective): To rule out MS (multiple sclerosis), was seen by neurologist 6/7/01. ...


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