United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Zagel United States District Judge
Tyrone Burns is currently incarcerated as an inmate in the
Illinois Department of Corrections (“IDOC”) at
Lawrence Correctional Center (“Lawrence”). The
instant case involves Plaintiff’s claim for deliberate
indifference and common law negligence against Defendants
Sylvia Mahone, M.D. (“Dr. Mahone”) and Wexford
Health Sources, Inc. (“Wexford” and,
collectively, “Defendants”) with regards to
Plaintiff’s medical treatment while he was an inmate
housed on a temporary basis at the IDOC Northern Reception
and Classification Center (“NRC”). Specifically,
Plaintiff alleges that he was in pain due to a benign growth
on his right hip, and did not receive appropriate medical
treatment from Dr. Mahone and Wexford during the six months
that he was an inmate at the NRC.
before me is Defendants’ motion for summary judgment.
For the following reasons, I am denying Defendants’
14, 2010, Plaintiff went to the emergency room at Stroger
Hospital due to intense pain he was experiencing from a mass
on his right hip. At Stroger, the attending physicians
discovered a lump they believed was a tumor, and
consequently, referred Plaintiff to the Surgical Oncology
Department for a biopsy and surgical removal. Plaintiff
subsequently was seen by an oncologist, Dr. Lazzaro, on May
18, 2010 who confirmed that the mass required a biopsy and
scheduled the procedure for a date within a few weeks.
Plaintiff was also prescribed hydrocodone to alleviate the
pain. Prior to the biopsy being performed, however, Plaintiff
was arrested and incarcerated at the Cook County Jail, before
being transferred to the Northern Reception and
Classification Center (“NRC”) at Stateville
Correctional Center (“Stateville”) on June 8,
arriving at NRC, Plaintiff underwent an intake physical
examination by Diane Schwarz, a physician’s assistant.
Plaintiff told Schwarz that he was in extreme pain from the
mass on his hip. After the examination, Schwarz concluded
that the mass was a tumor, and believed that it needed to be
biopsied and surgically removed immediately. Because Schwarz
cannot order a biopsy, she prescribed over-the-counter pain
medication and referred Plaintiff to Dr. Sylvia Mahone, the
NRC Medical Director, for further examination.
Mahone first examined Plaintiff on June 14, 2010. She
concluded that Plaintiff needed additional tests, but told
him that a biopsy and surgery were necessary and should be
scheduled in the near future. Plaintiff’s right hip was
x-rayed on June 17, 2010. Although the x-rays were negative,
Dr. Mahone ordered some additional tests, and told Plaintiff
that she would make arrangements for a biopsy.
22, 2010, Dr. Mahone submitted a “Medical Special
Services Referral and Report” (“MSSR
Report”) for Plaintiff, where she stated that the need
for treatment was “Urgent” and referred Plaintiff
to outpatient general surgery at the University of
Illinois-Chicago Hospital. According to Dr. Mahone, she was
concerned that if Plaintiff did not receive a biopsy while at
NRC, he may not receive the treatment he needed when moved to
a permanent correctional facility.
to referring an inmate for an outpatient medical procedure, a
collegial review must be undertaken with Wexford physicians
in Pennsylvania. The collegial review took place on June 22,
2010. There, Dr. Hector Garcia, a Dedicated Utilization
Management Physician and Wexford’s National Medical
Director, ignored Dr. Mahone’s recommendation for a
biopsy. Even though Dr. Garcia did not examine Plaintiff, he,
on Wexford’s behalf, overruled Dr. Mahone and denied
the referral. Instead, he recommended over-the-counter
medication, and directed Dr. Mahone to convene another
collegial review should the medication not address and treat
the growing mass. Despite ordering a biopsy, a procedure she
believed was “urgent, ” Dr. Mahone followed this
direction and gave Plaintiff a modest dosage of pain
medication. Although she had the right to appeal, Dr. Mahone
chose against appealing this decision, even though it was one
of the first times in her career at Wexford where her
recommendation and medical judgment was overruled.
month later, Plaintiff scheduled a visit to see Dr. Mahone,
as his mass had doubled in size. Despite continued difficulty
walking and sleeping, and even though the pain medication was
irritating his stomach, causing more pain and suffering, Dr.
Mahone did nothing other than increasing the dosage of his
medication to treat the growing mass on his hip. Contrary to
Wexford’s instructions, she did not initiate another
collegial review or attempt to have the mass biopsied.
Ultimately, in November 2010, Plaintiff was transferred to
Lawrence Correctional Center.
filing a grievance against Lawrence Correctional Center, its
warden, and the Wexford physicians working there, Plaintiff
finally was sent for a biopsy at the Carle Foundation
Hospital (“Carle”) in Urbana, Illinois in May
2011. There, the lump was drained of fluid. Approximately one
month later, Plaintiff was seen by Dr. Daniel Pontius at the
Lawrence County Memorial Hospital, who was concerned that the
lump on Plaintiff’s hip was a sarcoma. On August 2,
2011, the lump on Plaintiff’s right hip, now diagnosed
as a “right thigh tumor” was removed at Saint
Louis University Hospital. Despite removal of the
“right thigh tumor, ” Plaintiff still
experiences, and believes that he will continue to
experience, pain for the rest of this life in his pelvic
region and continues to have difficulty sleeping and walking.
judgment is designed to head off a trial if the opposing
party ‘does not have a reasonable prospect of
prevailing before a reasonable jury-that is, a jury that will
base its decision on facts and the law, rather than on
sympathy or antipathy or private notions of
justice.’” Karazanos v. Navistar Int'l
Transp. Corp., 948 F.2d 332, 338 (7th Cir. 1991)
(quoting Palucki v. Sears, Roebuck & Co., 879
F.2d 1568, 1572 (7th Cir. 1989)). Summary judgment is
appropriate if 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); Burnell v.
Gates Rubber Co., 647 F.3d 704, 708 (7th Cir. 2011). 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 making a summary judgment determination, the Court
must “construe all facts and reasonable inferences in
favor of the non-moving party.” Goodman v.
Nat'l Sec. Agency, Inc., 621 F.3d 651, 653 (7th Cir.