The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
In May 2007, plaintiff Delbert Heard was rushed from Menard Correctional Facility to the hospital for emergency surgery on his incarcerated hernia. Heard sued Wexford Health Sources, Inc. ("Wexford"), an Illinois Department of Corrections' (IDOC) healthcare contractor, Dr. Partha Ghosh, a Wexford employee, and Dr. Williard Elyea, IDOC's medical director, alleging that they ignored his worsening hernias for years, choosing to treat them with ibuprofen and "watchful waiting" rather than surgery. Wexford and the doctors assert that they were following established policy and Heard's case is nothing more than Heard disagreeing with their medical judgment about how to treat the hernias. For the below reasons, the Court denies the defendants' motions and the case must proceed to trial.
I. MATERIAL UNDISPUTED FACTS*fn1
A. Background and Parties
Heard is an IDOC prisoner. (Pl. 56.1 Resp. Wexford ¶ 1.)Wexford has a contract with IDOC to provide medical care to inmates and was responsible for Heard's medical care at Pontiac Correctional Facility ("Pontiac") between March 2000 and February 2003, Stateville Correctional Facility ("Stateville") at various points between March 2004 and March 2006, and Menard Correctional Facility ("Menard") between March 2006 and May 2007, when his hernias were finally repaired. (Id. ¶ 2.) Ghosh, a medical doctor and a Wexford employee, was the medical director at Stateville when Heard was incarcerated there. (Id. ¶ 3.) As the on-site medical director, Ghosh was responsible for deciding whether particular surgical procedures for prisoners were warranted. (Pl. 56.1 Resp. Elyea ¶ 14.) Dr. Lawrence Ngu, also a Wexford employee, was a staff physician at Stateville at the same time. (Pl. 56.1 Resp. Wexford ¶ 4.)*fn2 On-site vendor physicians like Ghosh and Ngu were responsible for providing the day to day medical care to IDOC prisoners. (Pl. 56.1 Resp. Elyea ¶¶ 12-13.) Elyea, also a doctor, was IDOC's Agency Medical Director between 1996 and 2007. (Pl. 56.1 Resp. Elyea ¶¶ 5, 8.) In that capacity, Elyea was not a treating doctor, but among other duties would review correspondence from prisoners requesting surgery that had been previously denied by a vendor physician. (Pl. 56.1 Resp. ¶ 16.)
B. Hernias in General and Wexford's Hernia Policy
A hernia is a sac formed by the lining of the abdominal cavity bulging through a hole in the the abdominal wall. (See Abdominal hernia, J. Am. Med. Assoc. available at http://jama.amaassn.org /content/305/20/2130.full.pdf (last accessed Feb. 24, 2012).) An inguinal hernia is a bulge in the groin area. (Id.) A "reducible" hernia is a bulge that can be pushed back into the body; an "incarcerated" hernia is one that cannot be pushed back in. (Id.) A hernia can become "strangulated," meaning the tissue is stuck inside the hole and its blood supply has been cut off, requiring emergency surgery. (Id.) The standard treatment (and only long-term solution) for hernias is surgical repair, called a herniorrhaphy. (Wexford 56.1 Resp. ¶ 2.)
Wexford's hernia policy during the time in question was "watchful waiting," meaning that prisoners with reducible hernias were under no medical risk. (Wexford 56.1 Resp. ¶ 2.) Specifically, Wexford's policy stated that "[p]atients with stable abdominal wall hernias are not, in general, candidates for herniorrhaphy and will be monitored and treated with appropriate non-surgical therapy." (Pl. 56.1 Resp. Wexford ¶ 36.) Before Wexford put the "watchful waiting" policy in writing, Wexford's general surgery policy was to deny surgery unless it was "medically necessary," meaning the surgery was required to prevent the patient's condition from getting worse. (Wexford 56.1 Resp. ¶ 2.) Between 1996 and 2000, Wexford's policy was that herniorrhaphies were usually not medically necessary. (Id. at ¶ 3.)
C. Heard's Hernia History
Heard was first diagnosed with a single hernia while in Cook County Jail in 1995, and was later diagnosed with a double hernia in 2000. (Pl. 56.1 Resp. Wexford ¶ 11.) In 1996, while incarcerated at Pontiac, Heard sought treatment for his hernia and an IDOC doctor recommended that it be surgically repaired. (Wexford 56.1 Resp. ¶ 5.) Pontiac's medical director at the time, Dr. George Castrovillo, approved the treating physician's recommendation for surgery, but for reasons not clear in the record, that surgery never took place. (Id.) Heard again sought hernia treatment from a doctor at Pontiac in 2000, who noted a right inguinal hernia that was "easily reducible" and "non-tender." (Id. ¶ 6.) In June 2000, Dr. Arthur Funk, Castrovillo's successor, denied Heard's request for surgery, noting the surgery was "elective." (Id. ¶ 7.) On March 28, 2001, Heard visited Funk, who noted in his records that Heard wanted him to note that his hernias were painful; Funk did not recommend surgery. (Id. ¶¶ 9-10.) As a general matter, the parties dispute whether Heard complained of pain from his hernias (and how serious his pain was) when he saw Ghosh and Ngu, though Ghosh conceded that he had no reason to doubt Heard was in pain. (See e.g., id. ¶¶ 29-30; Ghosh Dep. at 70, 75 ("I did not see that he was in that much pain really when I was seeing him or anything.")) Heard claims he complained of pain at all his doctor visits and the hernia pain made him less active and affected his mobility. (Id. at ¶ 36; Pl. 56.1 Resp. Wexford ¶ 14.) Similarly, the parties dispute whether various Wexford doctors explained to Heard the risks of observation versus surgery. (Wexford 56.1 Resp. ¶ 10.)
Heard complained in grievances and letters to Funk in 2002 that his hernias were painful, but his requests for surgery were again denied per "established health care procedures." (Id. ¶ 11.) After IDOC transferred Heard to Stateville, Ngu examined him in March 2003 and diagnosed him with a right reducible inguinal hernia and a normal left inguinal area. (Pl. 56.1 Resp. Wexford ¶ 12.) Heard told Ngu he had intermittent pain. (Wexford 56.1 Resp. ¶ 13.) Ngu recommended observation and prescribed Motrin for the pain. (Id.) A few months later, Stateville's medical director at the time (not Ghosh) denied Heard's request for surgery again. (Id. at ¶ 14.) By August 2004, Heard's right hernia had descended into his scrotum, and the pain associated with the hernia ranged from mild discomfort to extreme pain. (Id. at ¶ 15; Pl. 56.1 Resp. Wexford ¶ 15.) Ngu increased Heard's Motrin prescription and, given Heard's worsening pain, requested a surgical evaluation. (Wexford 56.1 Resp. ¶¶ 15-16.) An independent surgeon not affiliated with Wexford recommended surgical repair. (Id. at ¶ 17.) Ghosh, now medical director at Stateville, denied that request in favor of his own examination of Heard, noting that the hernias were not complicated. (Id. at ¶ 18; Ghosh Dep. at 48-49; Pl. 56.1 Resp. Wexford ¶ 18.) Ghosh examined Heard a few weeks later, found reducible hernias, and prescribed him a muscle relaxant to treat his hernia pain as well as the pain associated with a shoulder injury. (Wexford 56.1 Resp. ¶ 19; Ghosh Dep. at 40; Pl. 56.1 Resp. Wexford ¶¶ 21-22.) Though Ghosh did not recommend surgery for Heard at that point, he conceded at his deposition that nothing existed in Heard's medical history that suggested Heard was not eligible for surgery. (Wexford 56.1 Resp. ¶ 20.) Had Ghosh approved the surgery, Heard would have been sent to University of Illinois at Chicago (UIC) at no charge to Wexford or IDOC. (Pl. 56.1 Resp. Wexford ¶¶ 32-33.)
Ngu saw Heard again on March 2, 2005 after Heard complained of worsening pain. (Wexford 56.1 Resp. ¶¶ 26-27.) Ngu increased Heard's prescription for Motrin and requested a second surgical consultation. (Id. at ¶ 27.) On March 9, Ghosh again denied the surgery request-this time before the surgeon examined Heard-despite knowing that Heard had complained of worsening pain. (Id. at ¶ 29.)*fn3 The consultation went forward anyway on March 16 and the surgeon, in consideration of Heard's worsening pain, again recommended surgery; he conceded it was elective surgery. (Pl. 56.1 Resp. Wexford ¶ 25; Wexford 56.1 Resp. ¶ 28.) Two months later, in May 2005, Ghosh examined Heard again and found hernias; however he disagreed with the surgeon's recommendation and did not approve surgery. (Id. at ¶ 30; Pl. 56.1 Resp. Wexford ¶¶ 27-30.) In short, Ghosh determined surgery for Heard's hernia was "elective" and that Wexford's policy with respect to elective surgery is to monitor the patient's condition. (Wexford 56.1 Resp. ¶ 31; Ghosh Dep. at 115.) In 2005 and 2006, IDOC denied several grievances from Heard where he complained of pain from his hernias. (Wexford 56.1 Resp. ¶¶ 32-33.)
Finally, on May 22, 2007, Heard's hernia became incarcerated and painful and prison officials took him to a hospital emergency room. (Id. at ¶ 35.) The next day, after the hernias were partially reduced with sedatives, a surgeon fixed Heard's hernia. (Id.; Doc. 302-12, Ex. 45.) During the surgery, the surgeon found significant scarring in the Heard's hernia sac caused by repeatedly popping the hernia back into place, which complicated the surgery. (Wexford 56.1 Resp. ¶ 37.) The surgeon testified at his deposition that the scarring was more prevalent on one ...