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Wilford v. Bryant

March 9, 2009


The opinion of the court was delivered by: Harold A. Baker United States District Judge

Order Granting and Denying Summary Judgment

Plaintiff alleges that Defendants failed to timely diagnose and fix his broken wrist during his incarceration in Graham Correctional Center in 2005-06. The defendants' motions for summary judgment are before the court. For the reasons below, summary judgment will be granted to Defendants Wexford Healths Sources Inc., and Roger Leigh, the x-ray technician. Summary judgment will be denied as to Defendant Dr. Kayira, the treating physician, and Defendant Bryant, Graham's Warden at the relevant time.


A party moving for summary judgment must show, from the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, . . ." that there is no genuine issue of material fact and that the "moving party is entitled to judgment as a matter of law. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Fed. R. Civ. P.56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). This burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If such a showing is made, the burden shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Outlaw, 259 F.3d at 837. A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992).

Undisputed Facts

1. Dr. Kayira is currently the Medical Director at the Graham Correctional Center was serving in that capacity at all relevant times. He is board certified in radiology.

2. From November 2004 through July 4, 2005, Dr. Kayira was employed by Wexford Health Sources. From July 5, 2005 through December 16, 2005, Dr. Kayira's employer was Health Professionals Ltd. From December 17, 2005, to the present, Dr. Kayira's employer has been Wexford.

3. In March 2005, before the plaintiff's incarceration, the plaintiff had surgery on his right forearm to correct a fracture, which required the insertion of hardware. Dr. Karolyn Senica performed the surgery at St. Johns Hospital in Springfield, Illinois.

3. The plaintiff began his incarceration at Graham in July 2005.

4. On or about August 15, 2005, the plaintiff fell, trying to climb up on his bunk, re-injuring his right arm/wrist where the surgery had been. The plaintiff spent the night in the infirmary and saw Defendant Dr. Kayira the next morning.

5. Dr. Kayira examined the plaintiff on August 16, 2005 and ordered x-rays. The x-ray report, signed by Dr. Mitchell Sussman, stated incorrectly that the plaintiff had originally injured his arm one month prior, when in fact the original injury had occurred before March 2005. The report stated in relevant part:

There are healing fractures involving the mid shafts of the radius and ulna. Alignment is good. The fractures are transfixed by metallic plate and screws. The plate transfixing the radius is mildly angulated. The radial fracture is comminuted*fn2 although unlikely, an acute component to the radial fracture is not entirely excluded. Correlation with previous films would be helpful for further evaluation.

6. Dr. Kayira wrote in his progress notes of August 16, 2005, that the plaintiff had recently had a fracture fixed, that no new soft tissue swelling was noted, and that the x-rays showed no new fracture. The plaintiff told Dr. Kayira that the original fracture had already healed completely before the plaintiff's incarceration, meaning that the "healing fractures" on the x-rays were actually new fractures, not "healing fractures" from the March 2005 surgery.*fn3 The plaintiff also gave Dr. Kayira the name of the surgeon who had performed the surgery and where it had been performed. Dr. Kayira's written plan was to return the plaintiff to housing for one month, with a low bunk permit. Dr. Kayira did not believe there was an immediate need to refer the plaintiff for further care at that time. Dr. Kayira avers that it was his "belief that Mr. Wilford's arm and bone would continue to heal so long as Mr. Wilford did not use his arm or further aggravate his problem. The fact that the plate had moved did not constitute a serious medical need nor an emergent condition at that time." (Kayira Aff. ¶ 15).

7. Dr. Kayira next saw the plaintiff on September 1, 2005, for the plaintiff's complaints of pain. The plaintiff avers that his arm/wrist was still visibly deformed. Dr. Kayira wrote in his notes that no new soft tissue swelling was noted, that the plaintiff moved his fingers well, and that the x-rays showed a comminuted fracture with transfixing plate. Dr. Kayira's written plan was to obtain the records and x-rays from St. John's (where the surgery had been done) "to see if something new is ...

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