The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Thursday, 25 October, 2012 08:24:33 AM
Clerk, U.S. District Court, ILCD
Plaintiff, proceeding pro se and incarcerated in Logan Correctional Center, alleges deliberate indifference to his need for effective treatment for bone spurs in his ankle. Discovery closed at the end of July, 2012, with the exception of information sought in Plaintiff's pending motions to compel. This order addresses those motions to compel and Plaintiff's motion to amend his complaint and motion for financial assistance to hire an expert. For the reasons below, the motions to compel will be granted in part. The motion to amend and motion for financial assistance will be denied.
I. Plaintiff's motion to amend his complaint is denied (d/e 41).
Plaintiff seeks to add Dr. Mark Baker as a Defendant, who allegedly works at the corporate headquarters of Wexford Health Sources, Inc., in Pittsburgh. According to Plaintiff's medical records, Dr. Obaisi spoke with Dr. Baker in March, 2012, in a collegial review of Plaintiff's ankle problem. (Pl.'s medical recs., 3/1/12 entry, d/e 41, p. 12.) The record apparently says that Dr. Baker advised Dr. Shah to continue conservative treatment and try physical therapy. In support of his motion for summary judgment, Dr. Obaisi avers in his affidavit that the other physicians he conferred with in the collegial review agreed with Dr. Obaisi's diagnosis and treatment approach. (Dr. Obaisi Aff. ¶ 23.)
Plaintiff contends that Dr. Baker should have intervened to stop Dr. Obaisi's deliberate indifference and directed Dr. Shah to conduct diagnostic tests and recommend surgery. But Dr. Baker cannot be held liable for Dr. Obaisi's constitutional violations solely because Dr. Baker is allegedly Dr. Obaisi's supervisor. Kuhn v. Goodlaw, 678 F.3d. 552, 555 (7th Cir. 2012)("§ 1983 liability is premised on the wrongdoer's personal responsibility"); Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001)(no respondeat superior liability under § 1983). Supervisors are liable only if they, too, were personally responsible, meaning they participated in, directed, condoned, or turned a blind eye to the constitutional violation. Matthews v. City of East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012)("To show personal involvement, the supervisor must 'know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.'")(quoted cite omitted). Dr. Baker's participation in a collegial review and agreement with Dr. Obaisi's conservative approach does not allow a plausible inference that Dr. Baker is personally responsible for Dr. Shah's treatment decisions or was deliberately indifferent to Plaintiff's medical problems. Therefore, Plaintiff's motion to amend will be denied on grounds of futility. Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir.2008)("[D]istrict courts have broad discretion to deny leave to amend where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile.").
II. Plaintiff's motions to compel against Dr. Obaisi are granted in part (d/e's 52, 55, 60, 69).
Plaintiff moves to compel Dr. Obaisi to answer questions about prior settlements, charges, and sanctions against him. Specifically, Plaintiff wants to know about any settlements in civil actions; charges brought by the American Medical Association; job terminations; investigations or prosecutions by the Attorney General's Office; facilities that have banned Dr. Obaisi; convictions; reprimands; sanctions; and fines against Dr. Obaisi. He alleges that Dr. Obaisi has been relieved of his positions at other prisons due to a lack of reasonable care of the inmates and was removed as Chief Medical Officer at Logan Correctional Center in August 2012. Plaintiff also wants to know if Dr. Obaisi has been treated for depression, has had psychotherapy, or has taken psychotropic medications.
Dr. Obaisi objects on grounds of relevance and admissibility. Plaintiff counters that this information is relevant and admissible to show Dr. Obaisi is incompetent, insensitive, lacking in credibility, and has a habit of deliberate indifference. Plaintiff argues that specific instances of misconduct by Dr. Obaisi against other patients would be admissible under Fed. R. Evid. 405(b) which applies if a "person's character or character trait" is an "essential element" of a claim. Plaintiff also contends that Dr. Obaisi's mistreatment of other patients would be admissible as habit evidence under Fed. R. Civ. P. 406.
Dr. Obaisi's alleged mistreatment of other patients with other conditions would not be admissible to prove Dr. Obaisi acted in conformance with a character trait of deliberate indifference. See Fed. R. Evid. 404(b)(a)("Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character."). Additionally, Dr. Obaisi's character is not an "essential element" of Plaintiff's claim under Fed. Rule of Evidence 405(b). The essential element in this case is whether Dr. Obaisi was deliberately indifferent to Plaintiff's serious medical need. Deliberate indifference arises "'if the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment.'" Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)(quoting Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2009). "A medical professional is entitled to deference in treatment decisions unless no minimally competent professional would have so responded under those circumstances." Sain, 512 F.3d at 894-95.
However, evidence of prior wrongs is admissible to prove a material fact besides character, such as motive or intent. Fed. R. Evid. 404(b)(2); see Okai v. Verfuth, 275 F.3d 606, 610 (7th Cir. 2001)(setting forth test for whether prior bad acts are admissible). Dr. Obaisi's motive and intent could be relevant to the deliberate indifference inquiry. Additionally, whether Dr. Obaisi is competent to practice medicine could also be relevant to the deliberate indifference inquiry, and prior criminal convictions might be admissible to attack Dr. Obaisi's credibility. While Plaintiff's requests as worded are too broadly, the Court cannot conclude with confidence that Plaintiff's requests are entirely irrelevant.
Plaintiff's motion to compel will be allowed to the extent he asks about fines, sanctions, reprimands, or other disciplinary action against Dr. Obaisi. The motion to compel will also be granted with regard to prior criminal convictions, criminal charges, or the revocation of hospital privileges. However, Dr. Obaisi's entire 40-year career as a physician is too large of a time frame. See Okai, 275 F.3d at 210 (prior ...