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Burns v. Hardy

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

August 16, 2016

MARCUS HARDY, et al., Defendants.


          James B. Zagel United States District Judge

         Plaintiff 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”).[1] 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.

         Currently before me is Defendants’ motion for summary judgment. For the following reasons, I am denying Defendants’ motion.


         On May 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, 2010.

         Upon 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.

         Dr. 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.

         On June 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.

         Prior 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.

         One 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.

         After 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.


         “Summary 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. 2010).

         D ...

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