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Ford v. Ghosh

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

September 8, 2014



MANISH S. SHAH, District Judge.

Plaintiff Hundley Lynn Ford, Jr. brought this suit under 42 U.S.C. § 1983, complaining that allegedly inadequate care he received for a back injury while imprisoned at Stateville Correctional Center rose to the level of cruel and unusual punishment under the Eighth Amendment. Plaintiff brings this claim against the individuals who treated him-Dr. Parthasarathi Ghosh, Dr. Imat Carter, and physician assistant La Tanya[1] Williams-as well as against their employer, Wexford Health Sources, Inc. All four defendants now move for summary judgment. For the following reasons, their motion is granted in part, and denied in part.

I. Legal Standard

Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether a genuine issue of material fact exists, the court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. See CTL ex rel. Trebatoski v. Ashland School District, 743 F.3d 524, 528 (7th Cir. 2014).

II. Background

Plaintiff Hundley Lynn Ford, Jr. was incarcerated by the Illinois Department of Corrections at the Stateville Correctional Center. Dkt. 149[2] ¶ 1. While moving his property box on about April 20, 2008, plaintiff felt a "pop" in his lower back. Dkt. 158 ¶ 1. Intense pain immediately radiated down from his lower back to his legs. Id. The pain stayed with plaintiff, even as the days, months, and years went on. Id. ¶ 2. Plaintiff experienced the continued discomfort as "a stabbing pain on [his] left side at the bottom of [his] back right above [his] hip, [along with a] pain shoot[ing] down [his] left leg [which went] numb [along with his] whole lower body... at times...." Id. Plaintiff sought treatment from the medical providers at Stateville. The professionals he saw were employees of the private company Wexford Health Sources, Inc.-an entity the Department of Corrections had contracted to deliver inmate health services. Id. ¶ 7; Dkt. 149 ¶ 2.

The present lawsuit stems from the treatment plaintiff received from three Wexford employees over a several year period, namely La Tanya Williams (a physician assistant), Dr. Parthasarathi Ghosh (Stateville's medical director from 2003 to March 2011), and Dr. Imat Carter (Stateville's medical director from July 11, 2011 to May 13, 2012).[3] Dkt. 149 ¶ 2.

Plaintiff alleged several different theories of liability. First, plaintiff claims the individual defendants were deliberately indifferent to his diffused discs. Dkt. 12. ¶ 74. Second, plaintiff believes all defendants abided by a pattern or practice of deliberately postponing off-site treatment as a way to save money (i.e., the "cost-cutting" theory of liability). Id. ¶ 76. Third, plaintiff alleges that all defendants abided by a pattern or practice of failing to ensure (1) that plaintiff's medical permits and prescriptions were renewed in a timely fashion, or (2) that he was not prescribed harmful or ineffective medicine. Id. ¶ 77. Finally, plaintiff claims that Dr. Carter implemented a policy of voiding all treatments authorized by Dr. Ghosh. Id. ¶ 78.

In response to defendants' motion for summary judgment, plaintiff articulates a theory that Wexford's practice or custom of allowing a sick call backlog to amass caused plaintiff needless pain for a period of months. Dkt. 150 at 10, 14-16. Defendants argue that, in so doing, plaintiff is trying to amend his complaint by means of his response brief because "[t]he Amended Complaint does not contain a cause of action related to alleged sick call' backlogs.'" Dkt. 159 at 14. Defendants are correct that plaintiff did not use these exact terms together to plead a claim, but plaintiff did allege that:

Defendants Wexford, Dr. Ghosh, Dr. Carter, and Williams' pattern and practice of refusing to take any measures to ensure Mr. Ford's medical permits and prescriptions were renewed in a timely fashion or to ensure that Mr. Ford was not repeatedly prescribed pain medications which were known to cause his stomach to bleed or to be ineffective amounts to a deliberate indifference to Mr. Ford's serious medical need.

Dkt. 12 ¶ 77. This allegation presents the precise theory upon which plaintiff continues to rely. See Dkt. 150 at 10 ("Because prescriptions and permits can only be obtained during sick call, delays in sick call also result in delayed prescription and permit renewals."). Thus defendants' argument fails to the extent it seeks to preclude plaintiff from arguing that Wexford is liable for being deliberately indifferent to a pattern of sick call delays that caused plaintiff harm by denying or delaying his access to permits and prescriptions.

Plaintiff failed to respond to several summary judgment arguments defendants made in response to theories of liability plaintiff alleged in his amended complaint, including (1) that defendants deliberately postponed off-site treatment, (2) that defendants did not ensure plaintiff's pain medications were safe and effective, and (3) that Dr. Carter voided all treatments authorized by Dr. Ghosh. Dkt. 12 ¶¶ 76-78. Thus, the only claims still in dispute (and in the case) are (1) that the individual defendants were deliberately indifferent to plaintiff's diffused discs, and (2) that Wexford's practice or custom of allowing a sick call backlog to amass caused plaintiff needless pain for a period of months.

Physician Assistant Williams's Treatment of Plaintiff

The first Wexford employee plaintiff saw for his back was physician assistant Williams on October 1, 2008. Dkt. 149 ¶ 75. Williams observed that plaintiff's lumbar spine had "minimal tenderness with palpation, that he had a full range of motion, no spasm and that his neurologic exam was intact." Id. She prescribed Tylenol and analgesic balm, and she discussed exercise and stretching. Id.

Williams next examined plaintiff on May 20, 2009, at which time he complained of right arm numbness-off-and-on for two weeks-as well as back spasms. Id. ¶ 76. Williams ordered an x-ray of plaintiff's right shoulder and elbow, and prescribed him a muscle relaxer (Robaxin) and a pain reliever (Naproxen). Id.

Williams examined plaintiff again on June 17, 2009. Id. ¶ 77. This time he complained of his back going out, numbness, and stabbing pain. Id. Williams assessed him for chronic low-back pain and for possible disc herniation. Id. Williams also decided to refer plaintiff to be seen by Dr. Ghosh-the then-medical director- for a possible MRI to rule out disc herniation. Id. Williams had to make this referral because she did not have authority to order an MRI herself. Id. Williams also referred plaintiff for a physical therapy evaluation to see if that would help ease his pain.[4] Id. Finally, Williams refilled plaintiff's prescriptions for Robaxin, Naproxen, and analgesic balm. Id.

Williams next saw plaintiff on June 10, 2011. Id. ¶ 79. He complained that a back brace he received had been confiscated because he had not been given a permit for it, so Williams gave plaintiff a six-month permit. Id. Williams also learned that plaintiff had not yet been to the University of Illinois at Chicago pain clinic, as Dr. Ghosh had ordered on January 25, 2011. Id. ¶¶ 79-80. Williams noted in plaintiff's file: "[c]heck with medical records [regarding] the status of the referral to the pain clinic as per Dr. Ghosh's visit with patient on January 25, 2011." Dkt. 147-14 at 120:7-13. At her deposition, Williams explained she made this note because "obviously the patient [was] still having pain and [he] was told that he was going to the pain clinic." Id. at 122:13-18. Williams could not recall whether she personally followed up on the note. Dkt. 123:19-124:12.

Finally, on July 8, 2011, Williams saw plaintiff at a hypertension clinic, and he told her he had still not been to the UIC pain clinic. Dkt. 149 ¶ 81. Williams once more reflected this fact in plaintiff's file. Dkt. 158 ¶ 14.

Dr. Ghosh's Treatment of Plaintiff

Dr. Ghosh first examined plaintiff on June 28, 2010. Dkt. 149 ¶ 83. He ordered him an MRI[5] and gave him permits for ice, medical restraints, and a lower bunk. Id. Dr. Ghosh submitted the MRI request to the Utilization Management Committee for collegial review that same day. Dkt. 149 ¶ 84.

A few days later, on July 1, 2010, the Committee followed up on the request for plaintiff's MRI by faxing Dr. Ghosh a form asking for more information on plaintiff's treatments up to that point in time, including the physical therapy he had been prescribed, any prior imagings he had undergone, medications he had taken, or any other "conservative treatment" he had received. Id. ¶ 85. The parties dispute how Dr. Ghosh responded to this request. Plaintiff claims he did not respond at all, and that he likewise failed to respond when the Committee re-sent Dr. Ghosh the same questions on August 3 and November 1, 2010. Dkt. 158 ¶ 21. By contrast, the doctor claims he responded to the July request by hand writing a note, but that the healthcare unit's medical records director committed a "clerical error" and did not transmit it to the Committee. Id. ¶ 21; Dkt. 149 ¶ 87; Dkt. 159 at 7. Dr. Ghosh testified that, as of August 3, 2010, he was not aware the Committee was still looking for the information it requested on July 1, 2010. Dkt. 149 ¶ 90.

The Committee approved plaintiff's MRI on November 23, 2010 and plaintiff underwent the procedure on January 13, 2011. Id. ¶¶ 91-92. On January 25, 2011, Dr. Ghosh reviewed the findings and told plaintiff that he suffered from degenerative disc disease. Id. ¶ 92; Dkt. 158 ¶ 23. As result, Dr. Ghosh noted in plaintiff's file that he should be referred to the UIC pain clinic for a spinal epidural injection-a referral that also needed to be approved by the Committee. Id. ¶¶ 92-93.

Plaintiff suggests Dr. Ghosh never submitted this request to the Committee because no documents reflect any such submission. Dkt. 158 ¶ 24. For his part, Dr. Ghosh testified that a nurse would have made sure that a consultation form was filled out and taken to medical records for faxing to the Committee. Dkt. 149 ¶ 93. Dr. Ghosh retired from Stateville on March 31, 2011, at which time plaintiff had not yet gone to the pain clinic. Dkt. 158 ¶¶ 16, 24.

Dr. Carter's Treatment of Plaintiff

On July 11, 2011, Dr. Carter took over as Stateville's medical director after a series of interim medical directors. Dkt. 158 ¶ 25. Dr. Carter first saw plaintiff on July 27, 2011 at a sick call. Id. ¶ 26. Plaintiff claims he told the doctor he was still awaiting care at the UIC pain clinic, but the admissible evidence plaintiff cites does not support that claim. See Dkt. 158 ¶ 26 (citing Dkt. 147-3 at IDOC202 (inadmissible hearsay); Dkt. 147-2 at F57 (no mention of a referral to the UIC pain clinic)). Nevertheless, plaintiff's medical file did contain notes to that effect from examinations with Williams on June 10 and July 8, 2011. See Dkt. 147-2 at F54-55. Plaintiff also filed grievances on July 21, July 23, July 29, August 21, and August 26, 2011 about his lack of medical treatment and the absence of progress on ...

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