United States District Court, N.D. Illinois, Western Division
For Gregory Baker, Plaintiff: Claudette P. Miller, LEAD ATTORNEY, Ungaretti & Harris LLP, Chicago, IL.
For Nedra Chandler, Darla Habben, Defendants: James Patrick Doran, LEAD ATTORNEY, Illinois Attorney General's Office, Chicago, IL.
For Wexford Health Sources, Inc., Bessie Dominguez, Arthur Funk, Defendants: Stephen Joseph Gorski, William W. Ranard, Cassiday Schade LLP, Rockford, IL.
PHILIP G. REINHARD, United States District Court Judge.
For the reasons stated below, the defendants' motion to strike  is denied and defendants' motion for summary judgment  is granted as to Dr. Dominguez and
Dr. Funk and granted in part and denied in part with regard to Wexford. The parties are directed to contact Magistrate Judge Iain Johnston's chambers by August 24, 2015 to arrange for a settlement conference with regard to the remaining claims.
STATEMENT - OPINION
On March 2, 2015, defendants Wexford Health Sources, Inc., Dr. Bessie Dominguez, and Dr. Arthur Funk filed a joint motion for summary judgment , as well as their memorandum in support , Local Rule 56.1(a)(3) statement of facts , and corresponding exhibits [88-90]. On April 7, 2015, plaintiff Gregory Baker filed his response , Rule 56.1(b)(3)(A)-(B) response to defendants' statement of facts , and Local Rule 56.1(b)(3)(C) statement of additional facts . On May 6, 2015, defendants filed their reply  and response to plaintiff's statement of additional facts . The court granted plaintiff's motion to file a surreply, which plaintiff filed on May 11, 2015 . Defendants filed a motion to strike plaintiff's motion for leave to file a surreply , which is hereby denied as moot. Defendants also filed a motion for leave to file a sur-surreply, which the court denied . Defendants' motion for summary judgment is now ripe for the court's review.
On summary judgment, the court construes all facts and draws all inferences in the light most favorable to the non-moving party. Schepers v. Commissioner, Indiana Dept. of Corrections, 691 F.3d 909, 913 (7th Cir. 2012). The court does not weigh evidence or determine the credibility of witness testimony. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). Instead, the court only grants summary judgment " 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." Fed.R.Civ.P. 56(a). That said, Rule 56 " mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Prior to addressing the merits of defendants' motion, it is necessary to set forth the undisputed facts located in the parties' Local Rule 56.1 Statements of Material Fact, as well as plaintiff's version of relevant disputed facts. In addition, the court is cognizant of its obligation to construe all disputed and undisputed facts in the light most favorable to plaintiff and does so accordingly. See Schepers, 691 F.3d at 913.
A. FACTUAL BACKGROUND.
At all relevant times, plaintiff Gregory Baker was incarcerated at the Dixon Correctional Center in Dixon, Illinois. at ¶ 3. At all relevant times, Wexford Health Sources, Inc. contracted with the IDOC to provide medical services to inmates at various IDOC prisons, including Dixon.  at ¶ 4. In 2011 and 2012, medical staff at Dixon included a medical director, a staff physician, a physician's assistant, and twenty to thirty nurses.  at ¶ 72. Dr. Bessie Dominguez was employed during the relevant time as the site physician at Dixon, practicing general medicine and providing medical services to inmates.  at ¶ 5. Dr. Arthur Funk was employed during the relevant time as Wexford's Regional
Medical Director for the northern region of Illinois, which includes Dixon.  at ¶ 6.
The parties dispute the date of plaintiff's injury. According to plaintiff, on July 11, 2011, plaintiff was assigned a work detail in the dietary unit of Dixon, cleaning pots and pans.  at PP 9-10. He was asked by his supervisor, Darla Habben, to help another inmate unload a food " hotbox" from a van. Id. While attempting to unload the box, he lost control and it fell on his right hand and arm. Id. He grabbed his arm after the incident and informed Habben what had occurred at approximately 1:30 p.m., but continued working throughout the day cleaning pots and pans. [97-2] at 7;  at ¶ 11.
When he woke up on July 12, 2011, plaintiff " couldn't get out of bed" because his arm and hands were badly swollen. [97-2] at 7. He observed that he had " a big knot" at the top of his right arm and that " from my hand up to my arm it was swollen. My fingers were swollen and stuff. And I knew something was wrong, because I couldn't turn my hand over." [97-2] at 14-15. In order to turn his hand, he needed to turn his elbow rather than his wrist. [97-2] at 16.
Plaintiff asked an officer if he could be taken to the healthcare service and was informed that he would need to sign up for sick call. [97-2] at 7-8. At work that day, he showed Habben the swelling and " she looked like, whoa, this is pretty swollen up." [97-2] at 8. When he asked her to take him to Health Services, she consulted with Cynthia Eykamp, a Public Service Administrator at Dixon, who instructed that plaintiff put ice on his arm and sign up for sick call. Id. ;  at ¶ 1. After work, plaintiff signed up for sick call to be seen the next day, on July 13th. [97-2] at 17.
Plaintiff testified that at one point after he informed her of the incident, Habben informed him that she did not want to fill out an incident report and that he was " going to mess up [her] vacation time, you know, messing around with the incident reports[.]" [97-2] at 14. Habben signed an incident report on July 26, 2011, stating that the incident occurred on July 25, 2011. [97-2] at 12;  at ¶ 2.
On July 13, 2011, plaintiff went to sick call and explained the incident and his symptoms to " Nurse Katie," [97-2] at 18, referred to by Dr. Dominguez as Nurse Cady. See [87-2] at 16, 19. Nurse Cady attempted to have plaintiff seen by a physician, but according to plaintiff " by that time there, I guess it was short-staffed or something or a lot of people was going on vacations or whatever, you know, so it was like short-staffed or something." [97-2] at 18. Because of this, " she said because there wasn't a lot of people there that help or whatever, so she gave me some aspirin and an Ace bandage. And she just told me that she would put me on the list to see the doctor due to the fact there's a shortage[.]" [97-2] at 18. It is undisputed that it was Wexford's custom and practice to list any time that a patient presented to sick call, and that no record reflects that plaintiff presented to sick call on July 13, 2011. See  at ¶ ¶ 10, 61. Dr. Dominguez testified that she could not recall if she or any other medical staff were on vacation in July of 2011.  at ¶ 72.
Plaintiff was called back to Health Services on August 1, 2011, at which time he again spoke to Nurse Cady, who recognized him from his previous visit and referred him to Dr. Dominguez for an examination on August 2, 2011. [97-2] at 20;  at ¶ 12.
Plaintiff first saw Dr. Dominguez on August 2, 2011, at which time he explained the incident and his resulting symptoms.  at ¶ 13. She examined his arm and determined that the right wrist was swollen
and had a decreased range of motion. Defendant testified that the knot on the top of his right arm was visible at the time of the examination. [97-2] at 21. She opined that " it looked liked a nice little sprain" and diagnosed plaintiff with a right wrist injury. Id. She also wrapped his wrist up to the middle arm in an ACE bandage, prescribed him 600 milligrams of ibuprofen, and directed him to keep his arm elevated. [97-2] at 21-22;  at ¶ 14.
Dr. Dominguez also ordered x-rays of plaintiff's wrist to rule out a fracture. The x-rays were performed at Dixon on August 2, 2011 and delivered to OneRadiology, which reviewed the films and completed an x-ray report on August 3, 2011. [87-2] at 14, 40. However, the OneRadiology x-ray report was not reviewed by a Wexford physician at that time. Plaintiff signed up for sick call on August 8, 2011, at which time the medical chart notes that he was " asking questions about wrist." [87-2] at 15. On August 10, 2011, Dr. Jill Wahl, traveling medical director, reviewed the OneRadiology x-ray report, noted an " abnormal right wrist x-ray," and ordered that plaintiff follow up with Dr. Dominguez. Id. ;  at ¶ 15. Dr. Dominguez testified that Wexford's policy at the time was that " the medical director got all the x-rays and lab reports" which could at times cause delays in treatment if the medical director was unavailable on the day that the x-ray results became available. [87-2] at 15, 17.
Plaintiff was seen by Dr. Dominguez on August 12, 2011, at which time she examined him, discussed the x-ray findings showing a mildly separated ulna, and opined that plaintiff had a right ulnar tip dislocation.  at ¶ 16. Dr. Dominguez submitted a referral request to Wexford's collegial review board in an effort to obtain a consultation for him with an outside specialist. Id. The August 15, 2011 collegial review, which Dr. Wahl participated in, denied the referral request based on the totality of the evidence and recommended conservative treatment for plaintiff's wrist. Id. Dr. Wahl discussed the decision with Dr. Dominguez on August 15, 2011, and Dr. Dominguez scheduled a re-evaluation and repeat x-ray for plaintiff. Id.
On August 17, 2011, plaintiff filed an emergency grievance regarding the referral request and complained that he was not receiving adequate medical treatment for his " hand wrist, and arm [which was] still in overwhelming pain" and he believed he had " nerve damage and a fractured bone."  at ¶ 8.
On August 24, 2011, Dr. Dominguez examined plaintiff for a third time and ordered a repeat x-ray of his wrist, which continued to show an ulna separation.  at ¶ 17. The examination revealed that while plaintiff's swelling had improved, part of plaintiff's right ulna " was prominently sticking out," he continued to have right wrist pain, and " his range of motion was still so limited." Id. Dr. Dominguez re-wrapped plaintiff's ACE bandage and informed him how to fill the prescription for his pain and anti-inflammatory medication. Id.
On September 9, 2011, Dr. Dominguez examined plaintiff for a fourth time, at which time the knot on his arm was still visible, he continued to complain of pain, and his range of motion remained limited.  at ¶ 18. She ordered additional x-rays and determined that plaintiff should be referred to the regional medical director, Dr. Funk, for a possible second opinion on an orthopedic referral " ASAP." [87-2] at 20. This was " [b]ecause it's been kind of like a month of follow-up, and I wasn't seeing any improvement." Id. Due to her own referral request being denied, Dr. Dominguez testified that her plan was to obtain a second opinion from Dr. Funk, " or what I'm hoping is that he will appeal that
and hopefully get it going, considering it's been a month." Id. ;  at ¶ 18. When asked if a month of follow up was unusual or typical, Dr. Dominguez testified that it was " [k]ind of typical. I kind of get impatient." [87-2] at 20;  at ¶ 18. Plaintiff was scheduled to be ...