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Gara v. Peek

United States District Court, Seventh Circuit

July 31, 2013

RAME GARA, Plaintiff,
v.
TRACY PEEK, DR. WAHL, and WEXFORD HEALTH SOURCES Defendants.

MEMORANDUM AND ORDER

STEPHEN C. Williams, United States Magistrate Judge

Plaintiff filed this cause of action on October 4, 2010, alleging deliberate indifference to serious medical needs against various Defendants as a result knee injury he suffered while playing soccer at Pinckneyville Correction Center. (Doc. 1). The remaining Defendants filed this Motion for Summary Judgment (Doc. 93) on April 15, 2013. Plaintiff filed his Response on May 20, 2013. (Docs. 93 and 94). Defendants filed a Reply to Plaintiff’s Response on June 3, 2013, making this Motion ripe for disposition. (Doc. 96). For the reasons below, Defendants’ Motion for Summary Judgment is GRANTED in part and DENIED in part.

Background

Pursuant to 42 U.S.C. § 1983, Rame Gara, then an inmate at Pinckneyville Correctional Center, sued five defendants on the theory Defendants violated his Eighth Amendment rights by showing deliberate indifference to his medical needs after he hurt his knee while playing soccer. Defendant Obadina was never properly served and was dismissed pursuant to Federal Rule of Civil Procedure 4(m). (Doc. 32). The Court granted Defendant Kelly’s Motion for Summary Judgment on August 24, 2012. (Doc. 76). Defendants Peek, Wahl, and Wexford Heath Sources remain in the case.

Plaintiff was playing soccer in the Pickneyville yard on May 3, 2009, when he fell while running and injured his knee. (Pl’s Dep. pp. 11-12). At the time of the incident, he heard something crack in his knee. (Pl’s Dep. p. 12). At his deposition, Plaintiff described the pain he experienced at that time as “11 out of 10.” (Pl.’s Dep. p. 13). Plaintiff was helped to his cell by the other inmates. (Pl.’s Dep. p. 15). Plaintiff asked the guard to go to medical, but was told that he had to submit a sick call slip, which he did. (Pl.’s Dep. p. 17). He testified that he had trouble using the bathroom and missed several meals because he was in too much pain to leave his cell prior to receiving medical attention. (Pl.’s Dep. pp. 21-22).

Plaintiff saw Defendant Peek approximately four days after the incident. (Pl’s. Dep. p.22). Plaintiff told Peek that he had injured his knee, complained of pain, and showed her the swelling. (Pl.’s Dep. p. 26). Peek was not able to fill out the prison’s protocol form specifically for sprains and other orthopedic injuries because the office was out of those forms that day, although she followed a copy of the protocol as she made her notes. (Peek Dep. pp. 99-100). Peek’s notes indicate that Plaintiff told her that he fell in the yard last week and injured his right knee. (Peek Dep. p. 149). She also recorded swelling, although her notes do not indicate how much, decreased range of motion, crepitus, a limp, and Plaintiff’s subjective complaints of pain. (Peek Dep. pp. 152-59). Peek gave him an ice pack for the swelling, which Plaintiff testified lasted twenty minutes, and also prescribed ibuprofen. (Pl.’s Dep. pp. 26-27). Peek later testified that she actually gave Plaintiff a twenty-four hour pass to have ice. (Peek Dep. pp. 125-26). Plaintiff testified that he did not receive the ibuprofen until eight or nine hours after it was prescribed, however, the nurse’s notes indicate that Plaintiff informed her he had been taking Tylenol on his own prior to seeing her. (Pl.’s Dep. p. 27); (Peek Dep. p. 157). Peek referred Plaintiff to see a physician or physician’s assistant. (Peek Dep. p. 164). She did not do so on an emergency basis because Plaintiff had told her that he had injured his knee a week ago, he was able to walk, her examination showed no deformities, and his temperature was normal, which typically indicates that circulation and nerve conduction is not damaged. (Peek Dep. pp. 161-62). Peek also testified that she was not specifically trained to identify ACL injuries. (Peek Dep. p. 162). She would refer on an emergency basis if a patient presented with extreme swelling, deformity, lack of circulation, and lack of nerve conduction. (Peek Dep. p. 162).

Plaintiff next saw an unidentified nurse practitioner (or possibly a physician’s assistant) approximately four days after he saw Peek, on May 11, 2009. (Pl.’s Dep. p. 28); (Doc. 95-7, p. 1). The nurse practitioner indicated that Plaintiff may have a torn ACL, and gave him a low gallery permit, a low bunk permit, crutches, and more pain medication. (Pl.’s Dep. pp. 28-29). She also made him a doctor’s appointment. (Pl.’s Dep. p. 30). Plaintiff saw Dr. Obadina on May 19, 2009. (Pl.’s Dep. p. 30). Obadina told Plaintiff his knee might be broken and scheduled an x-ray. (Pl.’s Dep. p. 33). The x-ray showed no fractures. (Pl.’s Dep. p. 34). Plaintiff saw Obadina approximately three weeks after his first visit; at the second visit, Obadina gave him his x-ray results, took away his crutches, and measured him for a knee sleeve. (Pl.’s Dep. pp. 34-36). Plaintiff then missed several scheduled sick calls because he was scheduled for mandatory schooling. (Pl.’s Dep. p. 108-109). Plaintiff did not get another appointment regarding his knee until January 2010; although he continued to complain of knee pain at other doctor’s visits, Obadina would tell him that he couldn’t address his complaints of knee pain on visits regarding other health issues. (Pl.’s Dep. pp. 37-38).

Plaintiff got a doctor’s appointment in January because his knee pain had not improved since June. (Pl’s Dep. p. 39). Plaintiff first saw Dr. Wahl on January 27, 2010 and requested an MRI at that time. (Pl.’s Dep. p. 41; Wahl Dep. p. 101). Wahl found Plaintiff’s gait to be normal and no swelling in the right knee. (Wahl Dep. p. 107). Wahl also performed several range of motion tests which were negative. (Wahl Dep. p. 109). Plaintiff testified that Wahl told him he didn’t need an MRI because his x-ray was negative. (Pl.’s Dep. p. 42).

In February, Wahl scheduled Plaintiff for physical therapy. (Pl.’s Dep. p. 44). Plaintiff received approximately five weeks of physical therapy, during which time he continued to experience pain in his knee. (Pl.’s Dep. p. 49). Wahl testified that she signed off on a recommendation by Plaintiff’s physical therapist to send Plaintiff to get an MRI and an orthopedic consult on February 22, 2010, although this is not shown in Plaintiff’s progress notes. (Wahl Dep. pp. 118-119). However, it appears as if Dr. Shepard actually presented that course of action at Wexford’s collegiate review on March 8, 2010 and then appealed the initial decision denying the MRI. (Wahl Dep. pp. 185-86); (Shepherd Dep. pp. 84-85; 91-92). Plaintiff received an MRI as ordered by Dr. John Shepard on April 7, 2010 at Memorial Hospital in Carbondale, Illinois. (Pl.’s Dep. p. 53). Plaintiff met with Wahl approximately three weeks later, at which time she told him that the MRI showed a torn ACL and ligament damage. (Pl.’s Dep. p. 56). Specifically, the MRI showed that Plaintiff had a 1) torn meniscus; 2) a complete/near complete tear of his ACL; 3) a fracture of the medial tibial plateau, and 4) osteoarthrosis (Doc. 95-2).

Wahl’s notes also indicated that on April 26, 2010, she participated in a collegial conference between herself and a physician and nurse on Wexford’s utilization management team, located in Pittsburgh. (Wahl. Dep. p. 128). During the collegial conference, Wahl made a second request for an orthopedic consult, but utilization management suggested an alternate plan of using a knee immobilizer. (Wahl Dep. p. 128). Wahl ordered a knee immobilizer and additional physical therapy for eight weeks. (Pl.’s Dep. p. 56). Wahl next examined the Plaintiff on July 1, 2010. (Wahl Dep. p. 130). Plaintiff discussed his continuing pain, which Plaintiff described at his deposition as “8 out of 10.” (Pl.’s Dep. pp. 59-60). She presented his case again to utilization management on July 6, 2010; this time they approved the orthopedic consult. (Wahl Dep. p. 131). The consult recommended surgery as an option. Wahl met with the colligate review committee again on August 16, 2010, and utilization management approved Plaintiff for surgery. (Wahl Dep. p. 132). He had surgery on August 30, 2010. (Pl.’s Dep. p. 65). Plaintiff alleges that post-surgery, he still experiences pain of 7 out of 10 and has limited range of motion as a result of delaying the surgery. (Pl.’s Dep. p. 71).

Wexford has promulgated policies addressing care of knee injuries. Their Orthopedic Surgery Policy and Guideline requires a referral after six weeks for an acute injury; likewise, the same policy requires a referral after six months if symptoms include chronic pain and crepitus. Wahl testified that when the Wexford Guidelines indicate that a patient should be referred, they mean to the collegial conference, not to a specialist. (Wahl Dep. p. 150). Wexford doctors follow Wexford medical and treatment policies. (Shepherd Dep. p. 43). Several witnesses in this case testified that the Wexford collegial conference often rejects medical plans in favor of more conservative courses of treatment. (Varel Dep. p. 30); (Shepherd Dep. p. 45). The collegial conference’s treatment plans may be based on studies, as opposed to an independent evaluation of the patient. (Shepherd Dep. p. 47-48). If the proposed treatment fails, the medical provider takes that patient’s case back to the collegial conference. (Shepherd Dep. p. 48).

Discussion

a) Summary Judgment Standard

Summary judgment, which is governed by Federal Rule of Procedure 56, is proper only if the admissible evidence considered as a whole shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Dynegy Mktg. & Trade v. MultiutCorp., 648 F.3d 506, 517 (7th Cir. 2011) (citing Fed.R.Civ.P. 56(a)).[1] The party seeking summary judgment bears the initial burden of demonstrating, based on the pleadings, affidavits and/or information obtained via discovery, the lack of any genuine issue of material fact. CelotexCorp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. If a party fails to properly address another party’s assertion of fact, courts may “grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it.” Fed.R.Civ.P. 56(e). A mere scintilla of evidence supporting the non-movant's position is insufficient; a party will successfully oppose summary judgment only when it presents definite, competent evidence to rebut the motion. Albiero v. Cityof Kankakee, 246 F.3d 927, 931-32 (7th Cir. 2001). See also Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (“[S]ummary 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 the ...


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