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Robert Chencinski, Jr., #B75443 v. Wexford U.R.

June 28, 2012

ROBERT CHENCINSKI, JR., #B75443, PLAINTIFF,
v.
WEXFORD U.R., DR. ALFONSO DAVID, AND GINA SHAFFER, DEFENDANTS.



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

MEMORANDUM AND ORDER

I. Introduction

Before the Court is a motion for summary judgment filed by Defendants Dr. Alfonso David, Gina Shafer, and Wexford Health Services, Inc. (Docs. 100 & 101). Specifically, Defendants contend that they are entitled to summary judgment on Plaintiff's claims of deliberate indifference against them because Plaintiff did not suffer from a serious medical condition and none of the Defendants acted with deliberate indifference. Plaintiff has filed a Response to Defendant's motion (Doc. 103). Based on the following, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion for summary judgment.

II. Factual Background

The events which form the basis of Plaintiff's Complaint occurred while he was incarcerated at Shawnee Correctional Center. Plaintiff was incarcerated at Shawnee from January 2008 to sometime in 2011. After being sent to Shawnee, Plaintiff complained to the nurse on February 11, 2008 that he was having issues with his left eye (Doc. 101 Ex. 1 at p. 17). Plaintiff was referred to an outside doctor, Dr. Fix, and met with Dr. Fix on May 22, 2008 (Id.). At that time, Dr. Fix diagnosed Plaintiff with blepharospasm and recommended that he be referred to outside care for botox injections (Id. at pp. 17-18).

Blepharospasm is an eye condition which is manifested in "uncontrollable, forcible closure of the eyelids." (Doc. 103 Ex. 1 at ¶ 4). A severe form of the condition can cause the eyelid to forcibly close for longer than normal, interrupting vision and, as the condition progresses, can leave the eyelid shut and eyebrow pulled down (Id. at ¶¶ 5-6). According to Dr. Umana, a board certified ophthalmologist who ultimately provided Plaintiff with his botox treatment and with whom Dr. David consulted, botox injections are the most effective form of treatment for blepharospasm and the use of seizure medicine such as Depakote and Klonopin (or Clonopin) are not effective treatments (Id. at ¶¶ 7-9). Botox injections are required every three to four months and a course of injections can cause continued relief (Id. at ¶10). Without such injections, a patient suffering from the condition would have increasing problems keeping his eye open and seeing out of the affected eye, and ultimately the condition would affect a patient's every day life (Id. at ¶¶ 11-12).

After Dr. Fix made his recommendation, Dr. Alfonso David, the medical director at Shawnee Correctional Center and a Defendant in this case, reviewed Dr. Fix's diagnosis and recommended treatment and ultimately denied the proposed treatment (Doc. 101 Ex. 1 at p. 18). Dr. David indicates that he denied the botox treatment because it was merely cosmetic and would not be a permanent treatment for Plaintiff's condition.

Dr. David did not see Plaintiff in person until June 2, 2008, at which time he denied Plaintiff botox treatment (Id. at p. 19-20). Dr. David then had a follow-up appointment with Plaintiff on July 1, 2008 at which time he referred Plaintiff again to Dr. Fix. At the July 1 visit, Dr. David also reviewed Plaintiff's history and discovered that Plaintiff had previously been treated by a neurologist at the Cook County Hospital who had recommended botox injections for Plaintiff (Id. at pp. 21, 52). Plaintiff saw Dr. Fix again on July 13, 2008 and again Dr. Fix recommended botox injections as treatment for his blepharospasm (Id. at p. 22). Dr. David again denied the recommended treatment

Dr. David next saw Plaintiff on October 13, 2008. At that visit, Dr. David noted that Plaintiff suffered from "left heavy facial spasm" (Id. at p. 23). He also received Plaintiff's file from Cook County and noted that the neurologist had recommended botox injections to treat Plaintiff (Id.). In response to Dr. David's meeting with Plaintiff, he recommended Plaintiff to an outside neurologist and on October 30, 2008 Plaintiff met with Dr. Alam (Id.; Doc. 103 Ex. 5-2 at p. 2). Dr. Alam recommended that Plaintiff be treated with Depakote and, if that did not work, Dr. Alam recommended the consideration of botox injections (Id. at pp. 22-23; Doc. 103 Ex. 5-2 at pp. 3-4).

Dr. David approved the treatment with Depakote, an anti-seizure medication, and prescribed the medicine for Plaintiff's blephasospasm (Id. at p. 24). Dr. David indicated that such recommendations from an outside specialist, are just that, a recommendation, which Dr. David can either agree with and prescribe the proposed treatment or not prescribe (Id. at pp. 26-27). However, Dr. David noted that if the treatment was unusual, he would have to not only approve the treatment but seek approval from the Wexford Collegial Review (Id. at pp. 26-28). Plaintiff was prescribed Depakote and on either November 2 or 3 of 2008, Dr. David noted that Plaintiff complained the Depakote was not working, even though Dr. David stated that Plaintiff could not have been taking the medicine for more than one day at that time (Id. at p. 30). Dr. David also scheduled a CT scan and EEG for Plaintiff, based on Dr. Alam's recommendation, which came back normal (Id. at pp. 30, 56). Plaintiff followed up with Dr. Alam on December 11, 2008 regarding those tests (Id.). Dr. Alam recommended that Plaintiff be referred to Dr. Umana for botox injections (Id. at p. 31; Doc. 103 Ex. 5-2 at p. 5).

After visiting with Dr. Alam, Plaintiff again saw Dr. David on December 17, 2008 (Id.). Dr. David reviewed Dr. Alam's recommendations and informed Plaintiff that he would seek approval from Wexford for botox treatments as Dr. Alam suggested (Id.). Plaintiff points out that even though Dr. Alam recommended botox, Dr. David continued to try to prescribe Depakote after Plaintiff saw Dr. Alam and that is when Plaintiff started refusing to take Depakote (Doc. 103 Ex. 5-2 at p. 5). Dr. David noted that he would seek approval for botox from the Collegial Review (Doc. 101 Ex. 1 at pp. 31-32).

The Wexford Collegial Review, or specifically Dr. Dennis Larson, denied the treatment, determining that the risk of injecting toxins outweighed any temporary reduction in symptoms (Id. at pp. 32-35). However, while Dr. David noted in his December 17, 2008 visit with Plaintiff that he would recommend botox treatment, he admitted in his deposition that he believed the use of botox was temporary and cosmetic and he believed that Plaintiff did not need botox (Id. at pp. 35-36, 61).*fn1 He admitted that he agreed with Dr. Larson's decision to deny Plaintiff botox treatment (Id. at p. 63). Dr. David included in his consideration to the Collegial Review that Plaintiff rarely presented with symptoms when Dr. David saw him and that Plaintiff admitted the spasms were only occasional and not constant (Id. at p. 64). Plaintiff again saw Dr. David on January 19, 2009, and he informed Dr. David that he would not take Depakote any longer as Dr. Alam had told him it was not working (Doc. 103 Ex. 5-2 at p. 7).

Plaintiff did not complain again of his eye problems until September 22, 2010 when he complained of suffering from depth perception issues (Doc. 101 Ex. 1 at p. 40).*fn2 Dr. David noted that Plaintiff had been admitted to the infirmary for other reasons during the time period between January 2009 to September 2010, but did not complain about eye problems on those occasions (Id. at pp. 65-66). Plaintiff indicates that he can only put in sick call for one condition and he felt that Dr. David knew what was wrong with his eye, so there was no reason to continue complaining about his condition when he had gone through all the procedures for dealing with his eye problem, including visiting the doctor and filing grievances (Doc. 103 Ex. 5-2 at pp. 14-15).

Plaintiff was referred to optometrist Dr. Brush on October 12, 2010 and Dr. Brush prescribed glasses for Plaintiff and recommended Clonopin, a medication used to treat seizures and psychiatric conditions, for Plaintiff's condition but noted that botox should be used if the prescription did not resolve the issue (Doc. 101 Ex. 1 at pp. 40-41, 68). Dr. David also consulted with Dr. Umana about Plaintiff's depth perception problems and was informed that blepharospasm did not cause depth perception problems (Id. at pp. 67-68). Plaintiff agreed to try the Clonopin (Doc. 103 Ex. 5-3 at pp. 3-4). On December 27, 2010, Plaintiff again saw Dr. David and noted that the Clonopin was not helping his condition (Doc. 101 Ex. 1 at p. 41). Based upon this visit, Dr. David completed a summary of Plaintiff's treatment, completed on December 29, 2010, noting both Dr. Fix's and Dr. Alam's recommendation for botox (Id. at p. 38). This time Dr. David recommended the use of botox as treatment because the other medications were not remedying the condition (Id. at pp. 44-45). Dr. David noted that he did not believe the treatment of blepharospasm with drugs such as Clonopin or Depokote were short term solutions, as some patients due respond to prescription treatment, but he admitted that the medications would not cure the twitching (Id. at pp. 49-50). He admitted that the drugs would not cure the underlying condition, but also noted that botox wouldn't cure the underling condition either (Id. at p. 50). Dr. David also maintains that in all of the times he saw Plaintiff, Plaintiff never complained of pain, ...


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