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Whiting v. Wexford Health Sources, Inc.

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

February 27, 2015

WEXFORD HEALTH SOURCES, INC., et al., Defendants.


ELAINE E. BUCKLO, District Judge.

Calvin Whiting ("Whiting") alleges that Alfonso David, M.D. ("Dr. David") and his employer, Wexford Health Sources, Inc. ("Wexford"), were deliberately indifferent to his medical condition-swollen lymph nodes that were diagnosed as cancerous two months after they appeared-while he was incarcerated at an Illinois prison.

Dr. David and Wexford have filed separate motions for summary judgment, which I grant for the reasons stated below.


At the summary judgment stage, I must view the evidence in the light most favorable to Whiting and draw all reasonable inferences in his favor. See Shields v. Ill. Dep't of Corrections, 746 F.3d 782, 786 (7th Cir. 2014). I will not, however, credit any Local Rule 56.1 statements and responses "that consist of hearsay, speculation, legal conclusions, improper argument, and evasive denials, in addition to those that do not properly cite to the record, are unsupported, or are otherwise improper." Boudreau v. Gentile, 646 F.Supp.2d 1016, 1019 (N.D. Ill. 2009).

Whiting began his prison sentence at the Hardin County Work Camp and its parent institution, the Shawnee Correctional Center, in July 2010. Defs.' Statement of Facts ("DSOF"), Dkt. No. 172, at ¶ 68. On October 15, 2010, Whiting complained to a nurse about "nodules" or growths on his left jaw and in his left groin area. Id . at ¶ 12. He reported increased tenderness in these regions and pain in his left ear. Id . The nurse who examined Whiting prescribed an antibiotic (amoxicillin) and a pain reliever (Motrin) based on her impression that he may have had an ear or throat infection. Id .

Ten days later, Whiting reported to a nurse that Motrin had not relieved his pain and showed her two new "bumps" on his neck. See Dkt. No. 173-3 at Whiting Ex. 009. The nurse scheduled Whiting to see Dr. David, the Medical Director at Shawnee Correctional Center, during the next sick call. Id . The next day, Whiting complained to a different nurse, "I'm getting more of these lumps all over my body. I can't eat or sleep and [am] getting more pain all over." Id . at Whiting Ex. 012. The nurse observed "multiple enlarged nodes" on Whiting's neck and a firm, enlarged mass on his left jaw. Id . Per Dr. David's instructions, she admitted Whiting to the prison's infirmary. Id .

Dr. David examined Whiting on October 27, 2010. Id. at Whiting Ex. 021. Whiting complained that he was "dying." Id . After observing Whiting's symptoms, Dr. David submitted a request to Wexford for a biopsy of the mass on Whiting's left jaw to determine whether lymphoma-a cancer of the lymphatic system-was causing his enlarged nodes. Id . Dr. David could have ordered an emergency biopsy on his own, but decided to submit his request through Wexford's collegial review process. Dkt. No. 165-1 ("Dr. David Dep.") at 29-30.

Dr. David and a doctor on Wexford's collegial review committee discussed the biopsy request. DSOF at ¶ 80. On November 1, 2010 Wexford denied Dr. David's request for a biopsy, but recommended an alternative treatment plan. Id . at ¶ 81-82. Specifically, Wexford recommended trying a course of two antibiotics, one after the other, and resubmitting the biopsy request if necessary. Dkt. No. 173-3 at Whiting Ex. 026. Although only a biopsy could have determined whether Whiting had lymphoma, Dr. David explained that Wexford's recommended course of treatment was consistent with his initial impression that Whiting had an ear or throat infection. Dr. David Dep. at 59. If Whiting responded positively to the antibiotics, it would have been less likely that he had lymphoma. Id .

After Wexford denied his biopsy request, Dr. David summarized this thought process as follows:

[M]y initial impression of the presented signs and symptoms was an infectious process going on. And while in my mind there's that possibility of blood dyscrasia such as lymphoma present in this patient, I was directing more [of] my attention or the treatment or management to my impression at that time. We don't right away do an invasive procedure on anyone presenting with earache or sore throat or enlarged lymph nodes, such as a biopsy of those lymph glands. We would rather consider treatment for whatever we think the patient is having at that time. And, going further, when collegial review denied my request for a biopsy but gave an alternative plan of trying additional courses of antibiotics, I thought it was a reasonable alternative plan at the time. But, at the same time, they gave a recourse that if those trial of antibiotics will not work that I can submit my request for a biopsy again, which was done in [December 2010].

Id . at 61-62. Dr. David explained the alternative treatment plan to Whiting on November 1, 2010 and started giving him the first of the recommended antibiotics and pain medication. Dkt. No. 173-3 at Whiting Ex. 045.

Whiting showed signs of improvement in response to the antibiotics, but sometimes voiced complaints of pain and frustration about not having a definitive diagnosis. DSOF at ¶¶ 9, 13. On November 3, 2010, a nurse observed that Whiting's "scattered and circular lesions appear[ed] to be decreasing in size and redness" and were "not as severe as one week ago." Dkt. No. 173-3 at Whiting Ex. 051. Three days later, on November 6, 2010, a nurse reported that the mass on Whiting's neck had decreased in size and the areas on his back and chest "continue[d] to improve." Id . at Whiting Ex. 060. Whiting's condition then started to decline. He reported a "new bump" and increasing pain on November 7, 8, and 9. Id . at Whiting Ex. 062, 064-065. By November 29, 2010, Whiting was complaining of multiple "knots" on his body. Id . at Whiting Ex. 087. The nurse who examined Whiting that day observed nodules at the edge of his hairline, on both sides of his neck, under his left armpit, and on his right deltoid. Id . She scheduled Whiting to see Dr. David during the next sick call. Id .

Dr. David examined Whiting on December 2, 2010. Id . at Whiting Ex. 092. Whiting was "very upset" and claimed that Dr. David was "letting him die." Id . Dr. David explained why Wexford had denied his first request for a biopsy, but decided to resubmit the request. Id . ...

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