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Montague v. Wexford Health Sources, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 28, 2014

RAMON MONTAGUE, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., Defendant.

MEMORANDUM OPINION AND ORDER

GEORGE M. MAROVICH, District Judge.

Plaintiff Ramon Montague ("Montague") seeks to hold defendant Wexford Health Sources, Inc. ("Wexford") liable for a delay between the time his prison physician ordered an outside test and the time he received it. For reasons set forth below, the Court denies plaintiff's motion to strike and grants defendant's motion for summary judgment.

I. Background

Montague has been incarcerated since he was convicted of murder and attempted murder. During the period of time relevant to this dispute, the state housed him at Stateville Correctional Center ("Stateville"). Defendant Wexford is a corporation that contracts with the Illinois Department of Corrections to provide health care to prisoners at Stateville (and other places not relevant to this case).

When Montague filed his original complaint, Montague asserted claims against several individuals, in addition to Wexford.[1] Because he failed to state a plausible claim against the individual defendants, the Court dismissed Montague's claims against the individuals. Montague, however, stated a claim against Wexford. This is what the Court said when it dismissed the claims against the individual defendants:

In June 2009, Montague first started suffering from stomach pain and an inability to keep down food. Montague wrote letters to sick call. His requests for treatment were ignored by Wexford and unspecified employees, including nurses.
In April 2010, Montague changed his tack. He told his work-detail supervisor ("Johnson") about his pain, and Johnson arranged an appointment with defendant Latonya Williams ("Williams"), a physicians assistant employed by Wexford. Williams examined Montague and ordered stool samples. Williams told Montague that it would take a week to get the test results and scheduled him for a follow-up appointment. Montague asserts that Williams, "inquired if I wanted something for the pain and I refused, making it known that I did not want no medication for pain not knowing what caused it." When Montague returned for his follow-up appointment the next week, Williams informed Montague that he tested positive for H.Pylori bacteria and prescribed him two antibiotics. Williams told Montague that it would take six weeks to determine whether the antibiotics were killing the H.Pylori bacteria.
Montague continued to experience pain. When he complained to medical technicians, they did not help him. On or about July 7, 2010, Montague discovered blood in his stools. He complained to his work-detail supervisor, who escorted him to the emergency health care unit to be seen by Dr. Zhang. Dr. Zhang prescribed Montague Dicyclomine for his pain and scheduled him an appointment to see Dr. Ghosh.
At Montague's appointment with Dr. Ghosh, Dr. Ghosh found that Montague's colon was enlarged. Dr. Ghosh told Montague that that was common in men Montague's age and that Montague did not show signs of cancer. Montague requested an MRI. Dr. Ghosh informed Montague that he would first need another round of treatment for the H.Pylori bacteria. Dr. Ghosh prescribed Dicyclomine for the pain. Montague was called in for a follow-up test the following month, at which time Dr. Ghosh ordered an MRI.
Despite Dr. Ghosh's order, Montague did not actually receive an MRI until March 2011 (at least four months after Dr. Ghosh ordered it), at which point Montague was diagnosed with colon cancer. Montague alleges that the reason for the delay is Wexford's policy of making prisoners wait 3-4 months for specialty procedures unless the physician marks the request urgent. Montague alleges that other prisoners have waited 3-4 [months] for their outside treatment needs, as well.
The Court first considers plaintiff's allegations against physicians assistant Williams and concludes that Montague has not stated a plausible claim that Williams was deliberately indifferent to Montague's needs. There are no allegations that Williams knew of Montague's condition before Montague's work-detail supervisor asked Williams to see Montague in April 2010. Williams examined Montague and ordered stool samples. Williams told Montague that it would take a week to get the results and asked him if he wanted pain medication in the meantime. Montague, himself, declined the pain medication. When Montague returned a week later, Williams informed him that he had tested positive for H.Pylori and prescribed him antibiotics. She told him it would take six weeks to find out whether the antibiotics worked. Nothing in these allegations suggests that Williams was deliberately indifferent to Montague's serious health condition. To the contrary, the allegations make clear that Williams attempted to find the cause of Montague's pain and tried to prescribe him pain medication, which he refused. Montague's claims against Williams are dismissed without prejudice.
Next, the Court considers Montague's allegations with respect to Dr. Zhang. Montague does not allege that Dr. Zhang knew about Montague's condition before Montague's supervisor brought Montague to Dr. Zhang for emergency treatment on or about July 7, 2010. Montague alleges that Dr. Zhang prescribed Dicyclomine for his pain and scheduled him an appointment to see Dr. [Ghosh]. Nothing about these allegations suggests that Dr. Zhang was deliberately indifferent, and the Court dismisses without prejudice Montague's claims against Dr. Zhang.

The Court also considers Montague's allegations with respect to Dr. Ghosh. Here, again, Montague does not allege that Dr. Ghosh knew of his serious condition before his first appointment with Dr. Ghosh, which, according to Montague's allegations, was scheduled by Dr. Zhang. Montague takes issue with the fact that Dr. Ghosh did not immediately order an MRI, but Dr. Ghosh informed Montague that he first needed another round of treatment for H.Pylori. Dr. Ghosh scheduled a follow-up appointment for Montague and, at the follow-up, ordered an MRI. Nothing about these allegations suggests that Dr. Ghosh was deliberately indifferent to Montague's needs. At best, one can infer that Dr. Ghosh was negligent in not immediately assuming cancer was the cause of Montague's pain, but Montague alleges that he had tested positive for H.Pylori and, in any event, negligence does not violate the constitution. Duckworth, 532 F.3d at 681 ("it may have been prudent for [defendant doctor] to rule out cancer first. But this is just to reiterate the standard for medical malpractice, which falls short of deliberate indifference."). Montague does not allege that Dr. Ghosh knew and ignored the fact that several months passed between the time Dr. Ghosh ordered the MRI and when Montague actually had the MRI. For that lapse, he blames Wexford (see below). Montague has not alleged a plausible claim against Dr. Ghosh, and the Court dismisses Montague's claims against Dr. Ghosh without prejudice.

The Court is not suggesting that no one was deliberately indifferent to Montague's needs. Whoever refused to allow Montague to see a doctor between June 2009 and April 2010 may have been deliberately indifferent to his serious health condition. In addition, whoever prevented Montague from receiving an MRI between the time Dr. Ghosh ordered it and the time Montague actually received it may have been deliberately indifferent. Montague has not alleged plausibly, however, that Dr. Ghosh, Dr. Zhang or Williams was deliberately indifferent to his serious condition.
Montague has, however, stated a claim against Wexford. "Private corporations acting under color of state law may, like municipalities, be held liable for injuries resulting from their policies and practices." Estate of Nicholas Rice v. Correctional Medical Serv., ___ F.3d ___, ___, slip. op. at 48-49, 2012 WL 917291 (7th Cir. March 20, 2012) (quoting Monell v. Dep't of Social Servs. of New York, 436 U.S. 658, 690-91 (1978)). To state a claim, plaintiff must allege that "his injury was the result of the municipality's or corporation's official policy or custom. Id. Here, Montague alleges that months passed (during which time he was in constant pain) between the time Dr. Ghosh ordered the MRI and when he actually received it in March 2011. Montague alleges that Wexford had a policy in place, in order to save money, ...

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