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Torres v. Wexford Health Sources, Inc.

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

September 26, 2016

EDGAR TORRES, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., RICHARD SHUTE, M.D., and IMHOTEP CARTER, M.D., Defendants.

          MEMORANDUM OPINION AND ORDER

          John Z. Lee, United States District Judge.

         Plaintiff 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.

         Factual Background

         The 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.

         Torres 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.

         An 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.

         The 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.

         Wexford's 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.

         On 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.

         Torres 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.

         On 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. Id.

         Dr. 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.

         After 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.

         Although 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 91.[1] 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.

         Dr. 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 157-58.

         On 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 meetings. Id.

         On May 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 ...


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