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Wilder v. Wexford Health Sources, Inc.

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

May 8, 2015

Roosevelt Wilder, Jr., Plaintiff,
Wexford Health Sources, Inc. et al., Defendant.



In this Section 1983 civil rights action, Plaintiff Roosevelt Wilder, Jr. claims that Defendants were deliberately indifferent in failing to provide adequate care for his hernia, pain from that hernia and post hernia surgery complications. All of the remaining Defendants filed a motion for summary judgment [124]: Dr. Parthasarathi Ghosh, Dr. Liping Zhang, Physician's Assistant LaTanya Williams, Nurse Tiffany Utke, Alan Karraker, Kevin Halloran, and Wexford Health Sources, Inc. ("Wexford"). The individual Defendants listed are or were Wexford employees. DSOF ¶ 7. As explained below, Defendants' motion for summary judgment is granted in part and denied in part.

I. The Evidence Before the Court

Before addressing the parties' arguments, the Court must briefly consider the state of the evidence before it. Many of the facts underpinning this Opinion come from Plaintiff's deposition and affidavit - Plaintiff's Exhibits A and B. [162-1]; [162-2]. This is because Plaintiff has provided detailed factual information regarding specific instances of misconduct that has not, in most instances, been rebutted by the Defendants. While Plaintiff's testimony may be characterized as self-serving, that does not bar the Court's consideration. Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013) (finding that it was error for the district court to discredit Plaintiff's testimony because it was "self-serving"); Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) ("a self-serving affidavit is an acceptable method for a non-moving party to present evidence of disputed material facts").

It was the Defendants' job to provide evidence contradicting Plaintiff's self-serving testimony at summary judgment. To a large extent, especially with regard to Plaintiff's specific allegations of mistreatment, they have not done so. They are left, then, to do so at trial - by challenging Plaintiff's testimony through the crucible of cross examination and the presentation of their own evidence. At this time, the Court will rely on Plaintiff's un-contradicted testimony and construe it (and all related inferences) in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "[I]n doing so, " however, the Court notes that it "does not vouch for [the] truth" of Plaintiff's self-serving testimony. Pauley, 337 F.3d at 773; Goodhand v. United States, 40 F.3d 209, 211 (7th Cir. 1994).

II. Background[1]

Plaintiff was diagnosed with a left inguinal hernia in 1996 while in the custody of the Illinois Department of Corrections ("IDOC"). [162-1] P. Ex. A at 16. This matter concerns the treatment Plaintiff received for that hernia while housed at Stateville Correctional Center ("Stateville") from 2003 to 2011. A hernia is a protrusion of abdominal contents (intestines) through the abdominal wall and/or muscle fascia that normally contains it. [162-3] P. Ex. C at Dep Ex. 3. An inguinal hernia is a hernia that is located in the pubic region. [162-4] P. Ex. D at 17. Hernias are relatively common among men, with approximately 750, 000 surgeries occurring every year in the United States. Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011). In general, hernias may be classified as reducible, incarcerated, or strangulated. [162-3] P. Ex. C at Dep. Ex. 3. A hernia is reducible if the herniated contents can be returned to the abdominal cavity. This is usually done manually. An incarcerated hernia is one where the herniated contents cannot be easily returned to the abdominal cavity ( i.e., the material "gets stuck" outside the abdominal wall). A strangulated hernia is one where the abdominal material outside of the abdominal wall gets cinched by the abdominal wall, cutting off blood flow to the herniated material. Id.

During most of the relevant timeframe, 2003 to 2011, Wexford was under contract to provide health care services at IDOC facilities - including Stateville.[2] Wexford had a written policy in place concerning the treatment of hernias that read:

"Based upon the current medical literature regarding the natural history of abdominal hernias, their repair and recurrence, it is Wexford's position that: (1) Patients with stable abdominal wall hernias are not, in general, candidates for herniorrhaphy [hernia surgery] and will be monitored and treated with appropriate non-surgical therapy, (2) Patients with incarcerated or strangulated abdominal wall hernias are candidates for herniorrhaphy and will be referred urgently for surgical evaluation, and (3) Hernias which do not impact on an inmate's ADLs ["Activities of Daily Living"] in this setting would not be consideration for repair [sic]. Decisions regarding patient suitability for consideration of abdominal wall herniorrhaphy must be made on a case-by-case basis. These recommendations are intended only as a guide for the site physician and are not intended to replace hands-on clinical judgment." [162-3] P. Ex. C at 50-51, Dep. Ex. 3.

Dr. Ghosh, the medical director at Stateville, admitted that he did not "follow [that] criteria all the time." Id. at 51-53. Instead, Dr. Ghosh said that he relied on the judgment of the physician, and that surgery should be performed if: (1) the hernia is getting bigger; (2) constant pain is present or ADL's are affected; or (3) difficulty reducing the hernia exists. Id. at 26, 51-53.

From 1996 to 2003, Plaintiff's hernia would pop out occasionally, but it was easily reducible. [162-1] P. Ex. A at 21-22. It only hurt when it popped out and while he was reducing it. Id. Plaintiff's complaint is not based on the treatment of his hernia between 1996 and June 2003. [162] P. Resp. at 2.

On July 11, 2003, Plaintiff aggravated his hernia while climbing his bunk bed. [162-1] P. Ex. A at 24. Dr. Tielden, who is not a party here, evaluated Plaintiff and found a left inguinal hernia approximately two centimeters in size. [162-3] P. Ex. C at 21-22. On August 21, 2003, Plaintiff wrote Dr. Ghosh saying that his hernia caused "constant pain and discomfort" and limited his ADL's. PSOF ¶ 66. Plaintiff further said, "I pray that you do something about this hernia, soon. I'm in constant pain and discomfort. My ability to exercise has been severely curtailed, and I'm always wondering if this hernia with obstruct, strangulate or rupture - and kill me." [162-3] P. Ex. C at Dep. Ex. 5 (emphasis in original). Dr. Ghosh did not recall receiving that letter. [162-3] P. Ex. C at 59.

On September 7, 2003, Plaintiff filed a grievance urgently requesting hernia surgery. [162-3] P. Ex. C at Dep. Ex. 7. Plaintiff wrote: "due to intense pain from my hernia I fell while attempting to jump into the top bunk. The fall further aggravated the injury and the constant pain and discomfort intensified." Id. On September 17, 2003, Dr. Ghosh examined Plaintiff and recommended an onsite surgical consultation by a specialist, Dr. R.K. Natesh. DSOF ¶ 23-25. Dr. Ghosh found that the hernia was not strangulated or incarcerated, and that it was reducible. [162-3] P. Ex. C at Dep. Ex. 2. He further found that the hernia was not painful to reduce. Id. at 33.

Dr. Natesh examined Plaintiff on September 24, 2003. [162-2] P. Ex. B at ¶ 9. After that visit, Plaintiff told Dr. Ghosh that "Dr. Natesh recommended surgery, " yet Dr. Ghosh did not approve surgery. [162-1] P. Ex. A at 69:5-15; [162-2] P. Ex. B at ¶ 9. Dr. Ghosh told Plaintiff that just because surgery is recommended does not mean he has to approve it. [162-1] P. Ex. A at 69. Dr. Ghosh does not remember Dr. Natesh's recommendation, [162-3] P. Ex. C at 37, and there is no copy of that recommendation in the record. At some point, Dr. Ghosh explained to Plaintiff that if the hernia "wasn't incarcerated or strangulated, it wasn't life-threatening, so it wasn't an emergency" and did not require surgery. [162-1] P. Ex. A at 70. He said as long as Plaintiff could reduce the hernia, no matter how painful, Plaintiff was not a candidate for surgery. Id. at 70-71. It is unclear from the record when exactly Dr. Ghosh conveyed that information.

On June 3, 2004, Plaintiff received a response to his 9/7/03 grievance. [162-3] P. Ex. C at Dep. Ex. 7-8. The response denied Plaintiff's request for hernia surgery, stating that Dr. Ghosh reviewed Plaintiff's chart and, per the evaluation done by the "MD's there is not evidence of any medical emergency of immediate surgery." Id. Plaintiff therefore did not undergo hernia surgery at that time. [162-1] P. Ex. A at 27:10-14.

Between September 2003 and December 2009 (the date of Plaintiff's eventual surgery), Plaintiff alleged he was in continuous pain. [162-1] P. Ex. A at 28. Whenever he coughed, sneezed, raised his voice or defecated his hernia would extrude and he would be in pain until he could reduce it. Id. at 29. Plaintiff testified that he lived in a "world of pain" for those six years and was not given any pain medication. Id. He further stated that he frequently complained of his pain and requested surgery from Dr. Ghosh and others in the health care unit. Id. at 29-31.

During that same period, 2003 to 2009, Plaintiff worked as a barber and in the soap factory at Stateville. Id. at 10-12. He explained that he was physically able to do those jobs because he was given "light duty, " which did not require heavy lifting. Id. at 9-10. From 2004 to 2008, Plaintiff did not file any formal grievances about his hernia treatment. See [9] Complaint.

On February 16, 2007, Plaintiff complained to Physicians Assistant LaTanya Williams ("Williams") of his persistent pain. [162-2] P. Ex. B at ¶11. Likewise, on August 30, 2008, Plaintiff complained to Dr. Zhang of his persistent pain. Id. On January 7, 2009, Plaintiff wrote letters to Williams, Dr. Ghosh and Dr. Zhang describing his pain and seeking relief. Id. at ¶12.

The specifics of Plaintiff's June 16, 2009 interaction with Dr. Zhang are disputed. According to Plaintiff, he saw Dr. Zhang on that day and she refused to address his pain or recommend referral to a surgeon or specialist. Id. at ¶17. Instead, she told Plaintiff to lose weight to eliminate the pain. Plaintiff testified that she said, "everybody ha[s] pain. Everybody, all the time, people are in pain. You're a big boy. For you, a little pain is nothing. You'll be alright." Id. In her affidavit, Dr. Zhang disagreed. She said that "while a hernia was noted, there was no pain and it was easily reducible." [162-8] P. Ex. H. Dr. Zhang declined to recommend surgery. [162-2] P. Ex. B at ¶17.

On February 19, 2009, Plaintiff sent a letter to Alan Karraker, the regional administrator for Wexford, asking that Wexford authorize surgery. Id. at ¶ 13. Karraker did not respond and presently does not recall receiving the letter. [162-5] P. Ex. E. Plaintiff wrote similar letters on June 25, 2009 and July 7, 2009 to both Karraker and Kevin Halloran (CEO of Wexford). [162-2] P. Ex. B at ¶17. Neither took any action in response and neither remembers receiving the letter. [162-5] P. Ex. E; [162-6] P. Ex. F. Karraker and Halloran have no medical training and are not responsible for medical oversight at Wexford. Id. Karraker was in charge of human resources, the State of Illinois contract, and personnel union issues. Id. Halloran was the Chairman of Wexford. Id. Moreover, inmate letters sent to Wexford's corporate office are routed to Joseph Ebbitt, the Director of Risk Management and Legal Affairs, regardless of who the letter was intended for. Id.

Plaintiff was examined by Williams on February 25, 2009, but there is a dispute in the record as to what happened during that examination. Plaintiff says that he complained to Williams about constant pain from his hernia. [162-2] P. Ex. B at ¶14. Those complaints were listed in his medical log. [162-5] P. Ex. D at 11-12. According to Plaintiff, Williams examined his hernia and caused him to yell out in pain more than once, but refused to treat Plaintiff's pain or refer him to a surgeon or specialist for evaluation. [162-2] P. Ex. B at ¶14. As Plaintiff retells, she said "I'm not going to bullshit you. The truth is we do nothing for inmates with hernias, unless the hernia becomes incarcerated or strangulated." Id. Williams testified, however, that though Plaintiff had complained of pain, she had written in Plaintiff's medical log that - based on her examination - Plaintiff's hernia was "non-tender or no tenderness." [162-5] P. Ex. D at 14.

On July 9, 2009, Dr. Ghosh examined Plaintiff and saw that the hernia had grown to 4 centimeters in size. [162-4] P. Ex. C at 44. Plaintiff reported constant pain and the hernia extruding when he sneezed, coughed, talked loudly or defecated. [162-1] P. Ex. A at 37-39. Dr. Ghosh referred Plaintiff to the University of Illinois Chicago ("UIC") hospital for a second consultation. [162-4] P. Ex. C at 44. Plaintiff was seen on August 14, 2009 at UIC and surgery was recommended. Plaintiff underwent hernia surgery on December 29, 2009. [162-1] P. Ex. A at 40-41. The surgery was not done on an emergency basis, and the hernia was neither strangulated nor incarcerated. Id. at 71.

After surgery, Plaintiff spent one day in the infirmary before being sent back to his cell. Id. at 42. While in the infirmary, Plaintiff received pain medications prescribed by his surgeons at UIC. Id. Once back in his cell, the Wexford staff discontinued his pain medications even though Plaintiff was in "intense pain." Id. at 43-44. On January 1, 2010, Plaintiff went to the health care unit seeking pain medication and was seen by Nurse Tiffany Utke. [162-2] P. Ex. B at ¶ 31. She said: "[y]ou can't have the pain medication that has been prescribed for you while you are in population; you have to be in the infirmary to receive this." Id. Plaintiff said he didn't necessarily need Tylenol or Vicodin, but would take anything for pain. Id. He still got nothing. Id. Plaintiff asked to remain in the infirmary so that he could receive medication for his "intense pain, " but this request was denied. [162-1] P. Ex. A at 44. Nurse Utke only gave the Plaintiff a stool softener (Colace), [162-7] P. Ex. G, and refused to provide even the Tylenol Dr. Ghosh had prescribed. [162-1] P. Ex. A at 45; [162-3] P. Ex. C at 48.

Following surgery, Plaintiff's navel incision from the surgery became an infected, open sore with continual pain that was not properly addressed for several months. [162-1] P. Ex. A at 46-47. On January 28, 2010, Plaintiff filed a grievance regarding his infected wound. [162-2] P. Ex. B at ¶ 42. Dr. Ghosh responded by saying "all medical issues have been addressed and treated appropriately." Id. at ¶ 43. As set out in Plaintiff's affidavit, Dr. Ghosh ignored all of Plaintiff's verbal requests, sick call request slips, and personal letters about his post-surgery complications from the end of January 2010 to the beginning of April 2010. This was true even though, on ...

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