United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge.
Shawn Barmore, Jr., an inmate at Stateville Correctional
Center, brought this action under 42 U.S.C. § 1983
against three prison physicians-Dr. Anthony Dubrick, Dr.
Imhotep Carter, and Dr. Saleh Obaisi-claiming that they were
deliberately indifferent to his hernia-related pain in
violation of the Eighth Amendment. Barmore is also suing the
corporation contracted to provide medical care to inmates at
Stateville, Wexford Health Sources, Inc. He contends that
Wexford's hernia treatment policy caused him to receive
constitutionally deficient treatment. Defendants have filed a
motion for summary judgment, asserting that Barmore's
claim constitutes nothing more than a disagreement with the
doctors' medical judgment about the appropriate course of
treatment. For the reasons given below, Defendants'
motion is denied.
Wexford Health Sources, Inc. is a medical contractor that
provides medical services to inmates at Stateville
Correctional Center. Defs.' SOF ¶ 12. Defendant
Anton Dubrick is a physician who was employed by Wexford at
Stateville. Id. ¶ 9. Defendant Imhotep Carter
is also a physician who was employed by Wexford employee at
Stateville, where he served as the medical director until May
2012. Id. ¶¶ 9-10. Defendant Saleh Obaisi
is a physician and Wexford employee who became the medical
director at Stateville in August 2012. Id. ¶
entered Stateville in 2004. In 2011, he complained to prison
medical staff of swelling on his side. Id. ¶
15. The following month, a physician's assistant, Latonya
Williams, twice examined Barmore because of his complaints of
swelling and pain. Id. ¶¶ 16-17. Following
the second examination, Williams diagnosed Barmore with a
non-incarcerated, non-tender, reducible right inguinal
hernia. Id. ¶ 17. Williams prescribed Tylenol
for pain and Metamucil (a fiber supplement) to reduce the
strain on Barmore's bowels. Id. ¶¶
17-18. Barmore understood from Williams that, because his
hernia was “reducible, ” it might repair itself
over time. In fact, a reducible hernia is one that can be
pushed back into the abdominal cavity temporarily. Defs.'
Ex. E, Obaisi Dep., at 13. An inguinal hernia, which is what
Barmore was diagnosed with, can be expected to grow over time
rather than heal. Id. at 20.
March 2011 until February 2012, Barmore did not complain of
hernia-related pain to any prison personnel, nor did he
request to see health care providers for any issue related to
his hernia. Defs. SOF ¶¶ 22-30. He explains that he
was patiently waiting to see if his hernia would heal or
improve. Defs.' Ex. B, Barmore Dep., at 24. During this
period, Barmore sometimes played basketball and, until
October 2011, he worked at his prison job assignment,
sweeping and mopping the floors and galleries. Defs.' SOF
¶ 23; Pl.'s Resp. Defs.' SOF ¶ 23.
returned to the health care unit again on February 9 and
February 21, 2012, and was again evaluated by Williams.
According to her treatment notes, he complained that his
hernia was “acting up, ” Defs.' Ex. F, IDOC
Medical Records, at 20, and reported that “the
Metamucil didn't really work.” Id.;
Defs.' SOF ¶ 33. He also reported that the pain
“hasn't gone away, ” and “I can't
even play basketball or work out because of the pain.”
Defs.' Ex. F, IDOC Medical Records, at 20-21. Williams
prescribed Barmore Metamucil and Tylenol once more, and she
referred him to Dr. Dubrick for a second opinion.
Id.; Defs.' SOF ¶ 33.
examined Barmore on February 24, 2012. Defs.' SOF ¶
34. Barmore, Dubrick acknowledges, reported that the pain
caused him “trouble sleeping” and “bending
over.” Defs.' Ex. B, Barmore Dep., at 19, 56.
Dubrick diagnosed Barmore with a right inguinal hernia that
was “easily reducible when supine, ” and noted
that Barmore suffered from “longstanding pain”
related to this hernia. Defs.' Ex. F, IDOC Medical
Records, at 22. Barmore does not dispute that his hernia was
reducible when he was lying flat on his back, but he did
testify that, as early as 2011, the hernia could not be
pushed into place when he was standing. See
Defs.' Ex. B, Barmore Dep., at 26-30.
notes go on to say that Barmore's hernia likely would be
repaired surgically as a comfort measure if Barmore were not
in prison and had health insurance. Defs.' Ex. F, IDOC
Medical Records, at 22; Pl.'s SOAF ¶¶ 3-4. But
the hernia simply did not meet the criteria of Wexford's
hernia policy for surgical repair. Id. That policy,
according to Dubrick, allowed surgery only if the hernia was
strangulating the bowel (which would call for emergency
surgery) or if it was nonreducible and had become so
large it was a significant source of pain or disability for
the patient. Defs.' Ex. D, Dubrick Dep., at 12; Pl.'s
SOAF ¶ 7.
testified that Dubrick told him he would not recommend
surgery despite his pain and despite that the hernia
“may have grown.” Defs.' Ex. B, Barmore Dep.,
at 20. Dubrick also, according to Barmore, went so far as to
tell him that he would need to file a lawsuit in order to get
surgery. Id. at 55. Defendants dispute Barmore's
account, however, and they assert that Dubrick's
determination was based on his clinical evaluation of
Barmore's hernia, rather than any reliance on
Wexford's policy. Defs.' LR 56.1(a)(3) Stmt.
Dubrick declined to recommend surgery, Barmore filed a
grievance in which he described the intensity of his pain and
the pain's interference with his ability to function
normally. Defs.' Ex. A, Complaint, at Compl. Ex. A,
Grievance of 2/26/12. Possibly as a result of Barmore's
grievance, he was permitted to see Dr. Carter, the medical
director, on April 16, 2012. Barmore testified that he told
Carter his hernia had increased in size and become more
painful. Defs.' Ex. B, Barmore Dep. at 20. But Carter,
like Dubrick before him, determined that Barmore was not a
candidate for surgery. Defs.' SOF ¶¶ 37-38.
Barmore recounts that Carter explained, as Dubrick had, that
Wexford would not pay for his hernia to be surgically
repaired. Defs.' Ex. B, Barmore Dep. at 20. Defendants
dispute that this was Carter's reasoning, contending that
Carter weighed the risks and benefits of surgical repair and
concluded that surgery was not medically indicated.
Defs.' SOF ¶ 38. Barmore, however, testified that
Carter never attributed his decision to the risks of surgery.
Defs.' Ex. B, Barmore Dep., at 37.
addition to the Tylenol and Metamucil that Barmore was
already receiving, Dr. Carter prescribed him a hernia belt.
Defs.' SOF ¶¶ 37-39. A hernia belt does not
repair a hernia. It can provide some comfort by holding the
protruding intestine in place, but its main function,
according to Carter, is to remind the patient to be careful
of the hernia. Defs.' Ex. C, Carter Dep., at 21-22.
Carter testified that the belt was to be worn only when the
hernia was causing Barmore discomfort. Id. at 27.
five months passed after Carter prescribed the hernia belt
for Barmore, yet no hernia belt arrived. Barmore then filed a
grievance asking for it. Defs.' Ex. B, Barmore Dep., at
71; Defs.' Ex. A, Complaint, at Compl. Ex. H, Grievance
10/4/12. He explained in the grievance that his hernia was
causing him “extreme pain.” Defs.' Ex. A,
Complaint, at Compl. Ex. H, Grievance 10/4/12.
November 9, 2012, Barmore received the hernia belt.
Defs.' SOF ¶ 43. Ten days later, he was examined by
Dr. Obaisi, who had replaced Carter as medical director.
Id. ¶ 45. Obaisi's notes indicate that
Barmore had a reducible right inguinal hernia that was
occasionally painful. Id. Obaisi prescribed Barmore
Motrin 400 mg for pain and Konsyl, a fiber supplement that is
equivalent to Metamucil. Id.
like Dubrick and Carter, refused to recommend surgery.
According to Obaisi, his determination that Barmore was not a
candidate for surgery was based on Barmore's subjective
complaints, objective findings, and consideration of
Wexford's policy, which he said was merely a guide.
Defs.' Ex. E, Obaisi Dep., at 18. But Barmore testified
that Wexford's unwillingness to pay for the surgery was
the reason that Obaisi gave for not recommending it.
Id. at 17-18.
notes indicate that Barmore was not wearing his hernia belt
during the appointment. Defs.' Ex. F, IDOC Medical
Records, at 26. Obaisi apparently did not ask him why, and
Barmore did not volunteer an explanation. Defs.' Ex. B,
Barmore Dep., at 62-64. Barmore has since explained that the
belt was uncomfortable and provided no pain relief, possibly
because his hernia actually was not reducible. Id.
at 64. He nevertheless tried to use the belt on and off for
about two months. Id. at 65. The reason he did not
complain to any Wexford employee about the hernia belt's
inefficacy after those two months was that he had become
convinced, following Obaisi's refusal to recommend
surgery, that no one from Wexford would do anything to help
him. Id. at 63.
February 26, 2013, Barmore filed this lawsuit, claiming that
Defendants' refusal to refer him for a surgical
consultation violated the Eighth Amendment. He requested
injunctive relief-that Wexford be ordered to provide
did not make any other official complaints of hernia-related
pain until March 3, 2014, when he presented to sick call,
complaining of hernia pain. Defs.' SOF ¶¶
47-48. (At that point, this lawsuit was well under way, and
he had testified at length in his deposition about his
ongoing pain.) Obaisi examined him on March 13 and, although
he still evaluated the hernia as reducible, he recommended a
surgical consultation, pending collegial review. Id.
¶ 49. Obaisi testified that, while Barmore's
condition had not changed dramatically since November 2012,
he felt that Barmore's worsening pain warranted sending
him to see a general surgeon for evaluation. Id.
Obaisi received approval to send Barmore out for a surgical
evaluation, and Plaintiff was referred to Dr. Shishin Yamada,
general surgeon at Silver Cross Hospital. Id.
¶¶ 51-52. Dr. Yamada assessed Plaintiff to have a
recurrent right inguinal hernia with some incarceration and
recommended elective inguinal hernia repair. Id.
¶ 52. On June 24, 2014, surgery was approved in