United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee, United States District Judge.
Edgar Torres is a prisoner at Stateville Correctional Center,
who suffered from an umbilical hernia that became
incarcerated. He has sued his treating physicians, Dr.
Imhotep Carter and Dr. Richard Shute, for deliberate
indifference to his serious medical needs in violation of the
Eighth Amendment to the United States Constitution pursuant
to 42 U.S.C. § 1983. In addition, Torres has sued
Wexford Health Sources, Inc., the corporation that provides
medical care to inmates at Stateville, alleging that Wexford
has a de facto policy of delaying and denying all
non-emergency hernia surgeries, regardless of an inmate's
pain. Defendants have moved for summary judgment. For the
following reasons, Defendants' motion is granted in part
and denied in part.
following facts are undisputed, unless otherwise noted.
Defendant Wexford Health Sources, Inc. is a private
corporation that has contracted with the Illinois Department
of Corrections to provide medical services to inmates at
Stateville Correctional Center. Defs.' LR56.1(a)(3) Stmt.
¶ 4. Defendant Imhotep Carter is a physician who was
employed by Wexford at Stateville. Although he completed his
term as Stateville's Medical Director in May 2012,
id. ¶ 2, Dr. Carter was “on call”
on June 23, 2012, and advised Nurse Marsha Warning regarding
Torres's hernia condition. Defs.' Ex. D, Medical
Records, IDOC 001007; Defs.' Ex. E, Warning Dep. at 20.
Defendant Richard Shute is a physician who was employed by
Wexford as a traveling physician and provided medical
services to inmates Stateville from 2007 to 2012.
Id. ¶ 3.
was an inmate at Tamms Correctional Center (Tamms) from
September 2006 through mid-February 2012. See
Defs.' Ex. A, Torres Dep. at 25; Medical Records,
Stateville Intake Questionnaire, IDOC 000985. As he describes
it, starting in 2006, he had a bubble protruding from his
stomach that would occasionally blow up and tear his skin,
leaking a sticky liquid. See Defs.' Ex. A,
Torres Dep. at 24-25. He experienced shooting pain in that
area and would have to buckle over or sit down for ten
minutes at a time. Id. at 26. When he sought medical
treatment, a physician at Tamms told him that he was
suffering from an umbilical hernia and informed him that, as
long as it could be pushed back in, he would be okay.
Id. at 24. An umbilical hernia occurs when abdominal
contents protrude through an opening in the abdominal wall
and/or abdominal muscles. Pl.'s LR 56.1(b)(3)(C) Stmt.
¶ 1. Umbilical hernias come in various forms. For
example, it can be “reducible, ” meaning that the
hernia can easily be pushed back or reduced into the
abdominal cavity with manual manipulation. Defs.' LR
56.1(a)(3) Stmt. ¶ 49. An umbilical hernia also can be
“irreducible.” To some physicians, a hernia is
irreducible if it cannot be reduced under any condition;
other physicians use the term “irreducible
hernia” to refer to a hernia that can only be reduced
with significant manipulation when the patient is under
sedation. Defs.' Ex. F, Natesh Dep. at 15. Another term
for an umbilical hernia that cannot be reduced under any
circumstances is an “incarcerated” hernia.
See Defs.' LR 56.1(a)(3) Stmt. ¶ 51.
individual with an incarcerated hernia experiences increased
pain. Id. The abdominal lining (the peritoneum) is
extremely sensitive, and when it is stretched and pulled by
the protruding abdominal contents, the individual feels quite
a bit of pain. Defs.' Ex. F, Natesh Dep. at 11. Pain from
an incarcerated hernia may be treated temporarily with
medication, but medication does not cure the problem.
Defs.' LR 56.1(a)(3) Stmt. ¶ 51; Defs.' Ex. F,
Natesh Dep. at 19.
only treatment for an incarcerated hernia is surgery, which
should be performed as soon as possible, preferably within
twenty-four hours and no later than a week after diagnosis.
Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 40. If an
incarcerated hernia is left untreated, it can become
“strangulated.” Defs.' Ex. F, Natesh Dep. at
22. A strangulated hernia is a life-threatening condition in
which the abdominal contents contained in the hernia lose
blood circulation, causing the tissue to die and become
gangrenous. Defs.' LR 56.1(a)(3) Stmt. ¶¶
52-53; Defs.' Ex. F, Natesh Dep. at 20. Symptoms of a
strangulated hernia include vomiting, abdominal distension,
and septic shock. Id.
policy manual regarding the repair of abdominal wall hernias
provides that hernias may be classified as reducible,
incarcerated, or strangulated. Pl.'s Ex. 1, Wexford
Health Medical Policies and Procedures, at GS-3. Furthermore,
the manual states that “based upon the current medical
literature regarding the natural history of abdominal
hernias, their repair and recurrence, it is Wexford
Health's position that . . . [p]atients with incarcerated
or strangulated abdominal wall hernias are candidates for
herniorrhaphy [hernia surgery] and will be referred urgently
for surgical evaluation.” Pl.'s LR 56.1(b)(3)(C)
Stmt. ¶ 13. The manual also instructs that
“Wexford's physicians should incorporate the tools
in this manual into daily practice.” Pl.'s Ex. 1,
Wexford Health Medical Policies and Procedures, at 4.
November 29, and December 13, 2011, Dr. Marvin Powers, the
Medical Director at Tamms, examined Torres's hernia.
Defs.' Ex. D, Medical Records, IDOC 000906, 000976-77.
Dr. Powers remarked that Torres's hernia was one inch in
diameter and that it was “reducible, but with
difficulty.” Id. Torres asserts that, on
December 13, Dr. Powers told him he would request hernia
repair surgery for Torres. Torres Dep. at 31-33. Dr.
Powers' notes do not reflect this. Defs.'
LR56.1(a)(3) Stmt. ¶¶ 9, 33. The record does
indicate, however, that on December 13, 2011, Torres's
medical records were requested and delivered, but it is
unclear by whom and to whom. Defs.' Ex. D, Medical
Records, IDOC 000978.
was transferred to Stateville Correctional Center on February
21, 2012. Defs.' LR56.1(a)(3) Stmt. ¶ 10. According
to Torres, four days after his transfer, or on February 25,
2012, he filed a medical request (a copy of which he saved),
stating that he had been approved for hernia surgery while at
Tamms and was currently in pain due to his hernia. Torres
Dep. at 47. The record is silent as to whether Defendants
made any effort to ask Dr. Powers about this.
March 6, 2012, Torres complained of hernia pain and requested
to go to the medical unit. Defs.' Ex. D, Medical Records,
IDOC 000987. On March 9, 2012, Torres was examined by a
physician's assistant, who noted that Torres had reported
that his hernia was very painful and getting bigger.
Id. at 988. The physician's assistant referred
Torres to Stateville's Medical Director, Dr. Carter.
Carter examined Torres's hernia on April 9, 2012, .
Defs.' LR 56.1(a)(3) Stmt. ¶ 11. Dr. Carter
diagnosed Torres as having a “non-reducible”
hernia that he described as “permanent.”
Defs.' Ex. D, Medical Records, IDOC 000989. During his
deposition, Dr. Carter testified that he considers a hernia
to be “incarcerated, ” if its abdominal contents
cannot be easily returned to the abdominal cavity. Defs.'
Ex. B, Carter Dep. at 47. But, according to him, to determine
whether a hernia is, in fact, incarcerated “[t]here
would have to be some kind of a test performed in order to
identify . . . the contents of the hernia” to determine
whether the hernia contained abdominal materials, rather than
simply air. Defs.' Ex. B, Carter Dep. at 47. Dr. Carter
intimates that the required test could not be performed at
the Stateville facility. Id.; id. at 50. He
avers that he does not “have any way to determine the
risk of incarceration of a nonreducible hernia. That's
not my skill set.” Id. at 55.
examining Torres, Dr. Carter recommended that Torres's
hernia condition undergo what is known as “collegial
review” to determine whether Torres should be referred
for a surgical evaluation appointment with a physician in the
general surgery department at University of Illinois Hospital
in Chicago (UIC). Id. A collegial review is a weekly
teleconference meeting between on-site and off-site Wexford
personnel, including the Stateville's Medical Director,
to discuss both urgent and non-urgent services. The review
participants determine the most appropriate approach to the
health care issue. Pl.'s Ex. 2, Wexford Medical Program,
§ XI.B.12. That said, Dr. Carter, as the Medical
Director, had the ability to conduct an immediate collegial
review in urgent cases. Id. § XI.B.4. Dr.
Carter also had the authority to send inmates to the hospital
in emergency situations. See, e.g., Defs.' Ex.
D, Medical Records, IDOC 001007. On the form requesting
collegial review for Torres's condition, Dr. Carter
checked a box indicating that the matter was “not
urgent.” Defs.' LR56.1(a)(3) Stmt. ¶ 16.
the parties agree that Torres's hernia caused him pain,
they disagree as to its constancy and severity. Torres
testified that, at the time that Dr. Carter examined him, he
was in constant pain. Defs.' Ex. A, Torres Dep. at
According to Torres, the severity of the pain varied from
being bearable, where he was able to walk, id.
89-90, to unbearable, where the stabbing, shooting pain
lasted for hours and Torres was unable to stand or get out of
bed, id. 86, 87, 89-91.
Carter prescribed an over-the counter, nonsteroidal
anti-inflammatory drug, Naprosyn, for Torres's pain.
Defs.' Ex. D, Medical Records, IDOC 000989. But Naprosyn
did not alleviate Torres's hernia pain. Id.
¶ 85. And on April 16 and May 6, 2012, Torres wrote
letters to Salvador Godinez, who was then Director of the
Illinois Department of Corrections, stating that the pain was
too much for him to bear. Defs.' Ex. A, Torres Dep. at
April 16, April 23, and April 30, 2012, Dr. Carter
participated in collegial reviews during which the
participants discussed urgent and non-urgent surgical
evaluation referrals for Stateville inmates. Pl.'s LR
56.1(b)(3)(C) Stmt. ¶ 20. Despite the fact that he had
recommended a review of Torres's case on April 9, 2012,
Dr. Carter did not discuss Torres' hernia at any of these
7, 2012, Dr. Carter participated in yet another collegial
review, and this time, the participants approved Torres's
referral for an outside surgical evaluation to determine
whether he would be a candidate for surgical hernia repair.
Defs.' LR 56.1(a)(3) Stmt. ¶ 15. Wexford's
records reflect that, on day of the collegial review, a
Wexford employee contacted UIC regarding Torres's
surgical evaluation and noted “appointment two