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Barmore v. Dubrick

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

September 12, 2016

SHAWN BARMORE, JR., Plaintiff,


          John Z. Lee United States District Judge.

         Plaintiff 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.

         Factual Background

         Defendant 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. ¶ 11.

         Barmore 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.

         From 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.

         Barmore 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.

         Dubrick 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.

         Dubrick's 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.

         Barmore 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. ¶¶ 35-36.

         After 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.

         In 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.

         Over 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.

         On 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.

         Obaisi, 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.

         Obaisi's 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.

         On 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 surgery-and damages.

         Barmore 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.

         Dr. 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. ΒΆ 52. On June 24, 2014, surgery was approved in ...

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