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Barroww v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

March 1, 2017

RONALD BARROW, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., DR. ROBERT SHEARING, and DR. J. TROST, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL United States District Judge

         Plaintiff Ronald Barrow initiated this civil rights action, pursuant to 42 U.S.C. § 1983, on July 11, 2014 (Doc. 1). Now pending before the Court is the Motion for Summary Judgment filed by Defendants Wexford Health Sources, Inc., Dr. Robert Shearing, and Dr. John Trost on July 15, 2016 (Doc. 176). Barrow filed a response on October 11, 2016 (Doc. 195), supplemented by several exhibits (Docs. 200, 208). For the reasons set forth below, Defendants' motion is granted in part and denied in part.

         Background

         Plaintiff Ronald Barrow, an inmate incarcerated at Menard Correctional Center, suffers from various chronic conditions including hemorrhoids, rectal bleeding, chronic knee and shoulder pain, lower back pain, GERD (gastroesophageal reflux disease), diverticulosis, [1] and eye conditions (Doc. 177-1, pp. 1-2; Doc. 177-3, pp. 1-2). Barrow is proceeding on his Third Amended Complaint (Doc. 30), filed on October 8, 2014, which alleges that Defendants were deliberately indifferent to his chronic medical conditions in violation of the Eighth Amendment. Specifically, after threshold review pursuant to 28 U.S.C. § 1915A, Barrow was permitted to proceed on the following claims:

Count 1: Eighth Amendment deliberate indifference to medical needs claim against Wexford based on a policy, custom, or practice of elevating “cost over care;”
Count 2: Eighth Amendment deliberate indifference to medical needs claim against Defendants Wexford, Shearing, and Trost for denying Plaintiff access to prescription medications;
Count 3: Eighth Amendment deliberate indifference to medical needs claim against Defendants Wexford, Shearing, and Trost for denying Plaintiff adequate treatment for his chronic back injury;
Count 4: Eighth Amendment deliberate indifference to medical needs claim against Defendants Wexford, Shearing, and Trost for denying Plaintiff adequate treatment for his chronic rectal bleeding and diverticulosis;
Count 5: Eighth Amendment deliberate indifference to medical needs claim against Defendants Wexford, Shearing, and Trost for denying Plaintiff adequate treatment for his chronic knee problem; and
Count 6: Eighth Amendment deliberate indifference to medical needs claim against Defendants Wexford, Shearing, and Trost for his shoulder problem.[2]

         The following facts are undisputed except where noted.[3]

         A. Dr. Robert Shearing

         During the relevant time period, Barrow was incarcerated at Menard and was treated by Dr. Robert Shearing, who was employed by Wexford as the medical director from October 15, 2012 to November 16, 2013 (Doc. 177-1, p. 4). In a November 19, 2012 letter, Barrow introduced his medical conditions to Dr. Shearing, claiming that he had chronic back pain, loss of vision, diverticulosis (for which his prescription of Metamucil was switched to Konsyl, which was ineffective), chronic shoulder pain, chronic GERD, and a few other medical issues (Doc. 200, pp. 25-31). Prior to his interaction with Dr. Shearing, Barrow had been prescribed Tramadol, a generic for the narcotic Ultram, [4] for his lower back pain and Prilosec for GERD.[5]

         Dr. Shearing first saw Barrow on November 20, 2012 (Doc. 177-2, p. 2; Doc. 177-1). At that examination, Dr. Shearing reduced Barrow's Tramadol doses in an effort to wean him off that medication (Doc. 177-1, p. 2). Dr. Shearing's reason for discontinuing Barrow's “high dose” of Tramadol was that, “when used on a chronic basis, [it] tends to produce problems with tolerance, dependence and addiction” (Doc. 177-1, p. 2).

         Furthermore, “over the long term, it would require ever increasing doses, eventually to the point where the risks of life-threatening respiratory depression, among other things, would become prohibitively high in order to have any pain reducing effect at all” (Id.). Dr. Shearing instead prescribed Amitriptyline, a non-narcotic prescribed to treat chronic pain without the adverse side effects associated with Tramadol (Doc. 177-1, p. 2). It is unclear from the record whether Barrow was, in fact, addicted to or dependent on Tramadol, or whether tolerance to the medication required Barrow to take a higher dose.

         On November 27, 2012, Barrow wrote to Dr. Shearing stating that he was in “extreme pain” and “unable to function like I was while on Ultram” (Doc. 200, p. 76). Barrow claimed the Amitriptyline did nothing to help with his pain and caused him unnecessary suffering. Barrow also referenced his chronic knee and shoulder pain and stated that, without Ultram, his severe pain and stiffness were worse than ever. Barrow further stated that the switch from Metamucil to Konsyl was not working, and he had continued rectal bleeding and constipation.

         Dr. Shearing next reviewed Barrow's chart on December 10, 2012, but made no changes to his medication (Id.). Barrow wrote additional letters to Dr. Shearing on December 11, 2012, December 20, 2012, January 6, 2013, January 13, 2013, and February 6, 2013, making the same complaints about the switch in his medications, the ineffectiveness of Amitriptyline and Konsyl, and his ongoing severe pain and suffering (Doc. 200, pp. 80-95).

         On February 20, 2013, Barrow's prescription for Amitriptyline ran out and was not refilled. On March 7, 2013, Barrow sent a letter to Dr. Shearing in which he claimed a previous MRI showed a bulging disc for which he received steroid injections and Ultram (i.e., Tramadol) (Doc. 200-1, p. 28). Barrow also claimed that his prescription for Konsyl (also known as Fibercon) was not refilled for more than five weeks, and that Dr. Shearing allowed both his Ultram and Amitriptyline to run out without weaning him off the medications. He further stated that his knee pain was limiting his activity and that prior testing showed “spurring behind the knee cap” (Id. p. 30). He claimed the discontinuation of his pain medication “result[ed] in my daily pain and suffering from back, knee, and shoulder, negatively impacting my daily activity, sleep and quality of life” (Doc. 200, p. 9).

         Dr. Shearing saw Barrow on March 13, 2013, but did not renew the prescription for Amitriptyline, and no further pain medications were ordered. Dr. Shearing did change Barrow's Prilosec prescription to Protonix “due to a change in the formulary” (Id.). Dr. Shearing indicates that both Prilosec and Protonix are “functionally equivalent” proton pump inhibitors that “decrease the amount of acid produced in the stomach” and are “appropriate to treat symptoms of excess acid production and GERD” (Id., pp. 2-3). Dr. Shearing states in his affidavit that while there are situations when ordering a non-formulary medication is appropriate, there was no medical reason to do so in this instance (Id.).

         When Dr. Shearing saw Barrow again on July 16, 2013, to follow up on claims of blood in his stool (which Barrow had conveyed to a nurse on July 8, 2013) and chronic back pain, he reviewed the physical examination done by a nurse on May 30, 2013, [6] and ordered blood work (Id. p. 3). Dr. Shearing subsequently prescribed Fibercon and instructed Barrow to continue Protonix for his GERD (Id. pp. 3-4). In his affidavit, Barrow claims that these medications were ineffective, but he does not elaborate in what manner they did not work. As for Barrow's back pain, Dr. Shearing performed physical tests, which revealed that Barrow suffered from a chronic condition with no acute cause. Accordingly, no additional diagnostic testing such as an MRI or further pain management was necessary (Id.). Dr. Shearing did not see Barrow again; however, he did renew his medications (Protonix, Fibercon, and artificial tears) on August 28, 2013 (Id.).

         Throughout the year that Barrow saw Dr. Shearing for treatment, Barrow sent ten letters to the doctor (Doc. 200, p. 42). At the heart of Barrow's many letters is his belief that Dr. Shearing changed his medications to prescriptions that were ineffective, that he was not ordering diagnostic testing of his back problems, that he did not ensure Barrow was in fact receiving his medications without delay or breaks, and that he discontinued pain medication notwithstanding the continuation of Barrow's chronic pain. For example, Barrow generally complained that the Protonix, Fibercon, and Amitriptyline were either not working or were not working as well as Prilosec, Metamucil, and Tramadol to control his GERD, diverticulosis, and chronic pain in Barrow's back, shoulder, and knee. Barrow also claimed that dosing changes were reducing the efficacy of the drugs and that various medications were not refilled prior to them running out, which left him without medication for days (See generally, Doc. 200, pp. 25-31, 76-95; Doc. 200-1, pp. 27-32, 39).

         Dr. Shearing responded twice to Barrow's letters, once around December 11, 2012, and the next on February 18, 2013. In these letters, Dr. Shearing stated, in relevant part, that Tramadol/Ultram for chronic low-back pain was not used at Menard any longer because it is not an “evidence-based practice” and that after Barrow's long-term use, weaning him off the medication rather than discontinuing it immediately (what they were doing) was best. Dr. Shearing also said that Konsyl/Fibercon and Metamucil have the “same exact effective ingredient” with no difference in effectiveness. Dr. Shearing noted that Barrow's knee x-ray showed only “very minimal early degenerative changes which has not progressed, ” and that should not substantially limit his activity. Dr. Shearing further told Barrow that his spinal x-rays showed minimal degenerative changes, there was nothing unusual about his spine or back pain, and if he was not receiving his medication on time he should put in a nurse sick call (Doc. 200, p. 83; Doc. 200-1, p. 22).

         B. Dr. John Trost

         Dr. John Trost has been employed by Wexford as the medical director of Menard since November 25, 2013 (Doc. 177-3, p. 1). In a February 24, 2014 letter, Barrow introduced himself to Dr. Trost and requested to be seen to discuss his health conditions, including back pain, loss of vision, GERD, diverticulosis, and rectal bleeding (Doc. 200, p. 41). Barrow also said Dr. Shearing discontinued or denied certain treatments and listed his medical conditions, but he did not request any particular relief. Dr. Trost's notes from a subsequent appointment, as well as Dr. Trost's affidavit, reveal that he switched Barrow back to Prilosec for GERD and reordered Konsyl/Fibercon, but he did not make any notation about Barrow's pain (Doc. 177-2, p. 6; Doc. 177-3, p. 2). Dr. Trost states that Barrow did not complain about pain (Doc. 177-3, p. 2), while Barrow claims that the visit was rushed and he only had a few minutes to talk about his issues (Doc. 200, p. 14).

         Barrow wrote a follow up letter on April 7, 2014, discussing the “disc damage” in his back and requesting an MRI and pain medication. He also said he did not receive all medications prescribed for GERD/diverticulosis (Doc. 200-1, p. 65-67). Barrow further submitted sick call and prescription refill requests in July, August, and September 2014 (Doc. 200-1, pp. 71-73). In his affidavit, Barrow stated he suffered from rectal bleeding as a result of being prescribed Konsyl/Fibercon and not Metamucil (Doc. 200, p. 14).

         On September 29, 2014, Dr. Trost evaluated Barrow for low back pain after Barrow complained about it in a September 2014 letter (Doc. 200-1, p. 73) and during a visit to the nurse on September 12, 2014 (Doc. 177-3, p. 2). After reviewing Barrow's medical history, his normal physical examination on July 16, 2013, a lack of radiating pain, and the fact that Barrow had not been on pain medication for nineteen months, Dr.

         Trost ordered Tylenol 500 mg for the “exacerbation of his chronic back pain” for a three-month period (Doc. 177-3, p. 3).

         Barrow wrote five more letters dated October 30, 2014, November 4, 2014, January 13, 2015, January 13, 2015, and February 1, 2015 (Doc. 200-2, pp. 1, 2, 67; Doc. 177-4, pp. 1-2; Doc. 177-5) addressed either to Dr. Trost or the health care unit. In these letters, some of which are difficult to read, Barrow mentions his back pain, his desire for an MRI, the fact that he is not receiving his Tylenol, and that, by January 2015, his Tylenol prescription ran out.

         During this letter writing campaign, there were no medical records showing that Barrow complained about back pain during nurse sick call (Doc. 200-2, p. 65). Nonetheless, Dr. Trost renewed Barrow's Tylenol prescription on February 15, 2015, and his Fibercon prescription on March 9, 2015 (Docs. 177-2, pp. 11-12). The Tylenol was again renewed on May 12, 2015 (Doc. 177-2, p. 14).

         Barrow's letter writing continued. In a June 14, 2015 letter, Barrow indicated that his rectal bleeding was persistent, that the Tylenol prescribed for headaches and back pain was not working, and that his GERD medication was not working (Doc. 200-2, pp. 5-6). On June 25, 2015, Barrow explained that he slipped and fell, causing severe pain and trouble breathing. He put in for a sick call request but claims he was not adequately treated, only having received 325 mg of Tylenol and not his prescription for 500 mg of Tylenol (Doc. 200-2, p. 83-84). Barrow was seen by a non-defendant doctor on July 16, 2015, for his back pain; the doctor noted that Barrow said the Tylenol was not working, but that he refused non-steroidal anti-inflammatory agents (NSAIDS).[7] Barrow was told to continue taking Tylenol (Doc. 177-2, p. 18). In an October 1, 2015 letter, Barrow stated that pain medication for his back was not working (Doc. 200-2, p. 9). He further complained in an October 14, 2015 letter that prescription medications were not being refilled (Doc. 200-3, p. 3), although only a few weeks prior to that Dr. Trost renewed his prescriptions for Tylenol, Fibercon, and Zantac[8] (Doc. 177-3, p. 5).

         On December 17, 2015, Barrow was seen at nurse sick call for all the medical conditions outlined above, at which time he said he wanted to be seen by the doctor (Doc. 177-2, p. 22). After two appointments were rescheduled, first due to Dr. Trost being sick and then due to security issues, Barrow was seen on January 21, 2016 (Doc. 177-3, p. 6). Dr. Trost ordered Robaxin, a muscle relaxant, for back pain, Tylenol, Fibercon, and Zantac; he also ordered an x-ray of Barrow's lumbar spine (Doc. 177-2; 177-3, p. 6). The x-ray revealed “mild degenerative changes” (Doc. 177-2, p. 24). He then underwent a lumbar spine MRI on March 24, 2016 (Doc. 177-2, pp. 31-32). The test results revealed “minimal disc bulges (possibly physiologic) and minor facet anthropathy” and minimal or mild ...


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