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Gaston v. Ghosh

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

November 28, 2017

JAMES GASTON Plaintiff,
v.
PARTHASARTHI GHOSH, LIPING ZHANG, IMHOTEP CARTER, WEXFORD HELATH SOURCES, INC., AND SALEH OBAISI, M.D. Defendants.

          MEMORANDUM OPINION AND ORDER

          HONORABLE EDMOND E. CHANG, UNITED STATES.

         Plaintiff James Gaston, a prisoner at Stateville Correctional Center, brings this civil-rights lawsuit, 42 U.S.C. § 1983, for violation of his Eighth Amendment rights.[1] Defendants are Wexford Health Sources, Inc., a private corporation that provides medical services at Stateville; three current and former Stateville medical directors; and one former Stateville staff physician. For the reasons explained below, the Court grants summary judgment in favor of each defendant and against Gaston.

         I. Background

         This case arises out of the treatment of James Gaston's various medical problems-a course of treatment “spanning eight years, three serious medical conditions, and four surgeries.” R. 178, Pl. Resp. at 1.[2] For the sake of clarity, the Court will address each medical condition separately, though they overlap chronologically. The facts narrated here are undisputed unless otherwise noted. The Court views the evidence in the light most favorable to Gaston, the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         A. Left Knee

         In early May 2009, Gaston injured his left knee while playing basketball at the prison. R. 159, DSOF ¶ 9; DSOF Exh. B at 27:21-23.[3] On May 11, 2009, Gaston complained of knee pain to physician's assistant La Tanya[4] Williams (who is not a defendant). DSOF ¶ 9. X-rays were ordered, which showed degenerative changes in the left knee. R. 180, PSOF ¶ 3. To deal with the knee pain, Williams ordered a knee brace for Gaston, and also ordered him to take Motrin and to apply ice. Id. Later that summer, then-medical director Dr. Parthasarathi Ghosh saw Gaston at a Hepatitis C clinic. PSOF ¶ 4. It is not clear whether Gaston complained to Ghosh about knee pain at that appointment. In the medical records, Ghosh listed “[left] knee brace” under “Plans, ” but did not make any other notes about Gaston's knees. R. 197, Pl. Supp. Exh. at 16. Gaston, however, testified that his knee continued to be painful, and that it would swell up and give out on him. DSOF Exh. B at 31:16-32:11.

         In September 2009, Gaston made an appointment to see a physician during sick call. PSOF ¶ 6. But due to staff shortages and a Stateville lockdown, he did not see a doctor until November 2009, when he presented for an appointment with Dr. Liping Zhang. PSOF ¶¶ 7-10; Pl. Supp. Exh. at 21-22. Zhang examined Gaston, noting that there was no bruising of the left knee and that Gaston had full range of motion, but that he favored the knee while walking. DSOF ¶ 10; DSOF Exh D. at 3. Zhang prescribed Ibuprofen (which is a non-steroidal anti-inflammatory drug) to treat the pain and inflammation, as well as an analgesic balm. Id.[5] Zhang did not refer Gaston to a specialist at this appointment, and instead told him to return to the clinic in two months (though Zhang did not schedule the follow-up). PSOF ¶ 10.[6]Gaston next complained to Zhang of knee pain in April 2010, when he presented at the health care unit for the Hypertension and Asthma Chronic Clinics. DSOF ¶ 11. At this appointment, Gaston again complained about his left knee. Id. Gaston states that Zhang refused to examine his knee or to discuss it with him when he asked her to. Id. Defendants deny that Zhang refused to examine Gaston's knee, and note that Zhang prescribed Tramadol, [7] which is an opioid pain reliever, and an analgesic balm. R. 186, Def. Resp. PSOF ¶ 11.[8] Again, Zhang did not refer Gaston to a specialist, but rather told him to follow up at the clinic. PSOF ¶ 13. Gaston reports that he asked about a specialist referral, but Zhang told him “I don't want to talk to you about that. That ain't what you're here for.” DSOF Exh. B at 35:24-36:5. Gaston further asserts that at one of these two appointments (it is unclear which one), Zhang told him “I'm not treating you, and I'm not letting you see no specialist.” DSOF Exh. B at 56:19-21.

         Gaston followed up at the clinic about two weeks later, when he saw Williams and reported that his left knee was getting worse. DSOF ¶ 12. Williams referred Gaston to Ghosh for further evaluation. Id. On May 19, 2010-now more than a year after Gaston's initial injury-Ghosh examined Gaston. DSOF ¶ 13. Ghosh noted Gaston's history of pain, instability and swelling since May 2009, and planned to refer him for an orthopedic consult at the University of Illinois at Chicago (UIC). DSOF ¶ 13; PSOF ¶ 16. It took Ghosh until July 15, 2010-about two months-to actually sign the order approving the orthopedic consult. PSOF ¶ 17. Then there was another delay of several months until the consult took place, during which Gaston grieved the treatment of his knee and continued to complain of knee pain to Stateville medical personnel. PSOF ¶¶ 19-23.

         In the end, the orthopedic consult did not take place until September 27, 2010, when Gaston saw Dr. Samuel Chmell, an attending orthopedic surgeon at UIC. PSOF ¶ 25. At this appointment, Chmell noted a possible left meniscal injury and ordered x-rays and an MRI to further evaluate the potential injury. DSOF Exh. D at 11. But Gaston was not referred to UIC for an MRI until late November 2010, and the MRI did not take place until February 4, 2011. PSOF ¶¶ 29, 32. Gaston met with Ghosh on March 25, 2011 to discuss the results of the MRI. DSOF ¶ 18. Ghosh planned another orthopedic referral. PSOF ¶ 35. Ghosh retired shortly after this appointment. DSOF ¶ 18.

         On June 6, 2011, Gaston returned to UIC for another appointment with Chmell. DSOF ¶ 19. After reviewing the MRI, Chmell recommended a left knee arthroscopy, which is an elective outpatient procedure, to repair or remove damaged tissue in the knee. Id. Gaston agreed to undergo this surgery. Id. Wexford approved Gaston for the left knee arthroscopy in July 2011, and Chmell performed the surgery on August 2, 2011. PSOF ¶ 43; DSOF ¶ 21.

         At a follow-up appointment on August 8, 2011, Chmell noted that Gaston was doing well, ordered physical therapy, and gave him instructions on exercises to do in his cell. DSOF Exh. D at 21-22.[9] Gaston was never given physical therapy for his left knee. PSOF ¶ 47. Even so, it appears that the left knee arthroscopy was a success: Gaston did not complain about left knee pain again until four years later, in October 2015. DSOF ¶ 51.

         B. Right Knee

         Gaston began complaining of right knee pain sometime in 2010, but there is no evidence that Ghosh or the other defendants were aware of the right knee issue until much later. Gaston filed a grievance mentioning his right knee pain in August 2010, but there is no indication that Ghosh knew about the grievance. See DSOF Exh. G at 3-9. Gaston points to a letter that he wrote to Ghosh on December 1, 2010, stating that he had been waiting 18 months for left knee treatment, and that “my other knee is getting bad from the pressure and extra weight.” Pl. Supp. Exh. at 1-2. But the foundation for this letter (either its authorship by Gaston or its receipt by Ghosh) is not in the record. Gaston's Local Rule 56.1 Statement paragraph on this letter cites only a purported copy of the letter, and fails to cite any factual support, whether it be deposition testimony (or even an affidavit) of Gaston, or an admission by Ghosh that he received the letter. PSOF ¶ 30. As Defendants point out, there is no reason to think that this letter was ever received by Ghosh. Def. Resp. PSOF ¶ 30. Gaston did complain of right knee pain to Williams on December 17, 2010, DSOF ¶ 16, but there is no evidence that Ghosh or any of the other defendants knew about this complaint. There is also no evidence that Gaston complained to Ghosh or other medical personnel about his right knee between December 2010 and August 2011. Indeed, it is not clear that Ghosh ever knew about the right knee complaint (Ghosh retired in March 2011, DSOF ¶ 2).

         On August 8, 2011, at an appointment with Chmell after the left knee arthroscopy, Gaston complained of right knee pain. Chmell noted that he would likely order an MRI of Gaston's right knee at their next appointment, and that he would see Gaston again in two weeks. DSOF Exh. D. at 23. This follow-up appointment was never scheduled. Instead, in an August 25, 2011 appointment, Stateville's new medical director, Dr. Imhotep Carter, noted that there was “no current indication for a right knee evaluation.” DSOF Exh. D at 24. In November 2011, Carter presented Gaston's case at a Wexford collegial review. DSOF ¶ 24. Collegial review is a discussion between the Stateville medical director and a Wexford utilization management physician to determine a patient's treatment plan. Id. The collegial review decided to postpone an MRI of the right knee for six months “to allow surgically repaired left knee to recover.” DSOF Exh. D at 25.

         Gaston next presented for an evaluation with Carter in February 2012. Carter noted that Gaston was walking with a crutch and “Basically NWB [non-weightbearing] on his right LE [lower extremity].” DSOF Exh. D at 26. Carter reminded Gaston of the plan to delay the MRI of his right knee for six months, and renewed his medical permits and prescriptions. DSOF ¶ 25. Carter left Stateville shortly after this exam.

         In May 2012, the interim medical director (not a defendant in this case) referred Ghosh for an MRI of his right knee, which took place in July 2012. DSOF ¶ 27-28. The MRI showed degenerative tears of the medial and lateral meniscus, a joint effusion, and some osteochondral fragments within the joint. DSOF Exh. D at 31. Based on the MRI results and an examination, Chmell recommended a right knee arthroscopy. DSOF ¶ 28. Dr. Saleh Obaisi became medical director of Stateville on August 2, 2012, and approved the right knee arthoscopy on August 8, 2012. DSOF ¶ 29, DSOF Exh. D at 33. The surgery was performed on October 2, 2012. DSOF ¶ 30. Gaston underwent several months of physical therapy after the surgery. DSOF ¶¶ 32, 34.

         In December 2012, Obaisi approved a follow-up orthopedic consultation at UIC. PSOF ¶ 69. This consultation was approved in a Wexford collegial review on January 7, 2013, but the consultation did not take place until June 17, 2013. DSOF ¶¶ 36-37. Neither party explains why it took six months to schedule this appointment. During the appointment, Gaston complained of pain despite receiving medication and physical therapy. DSOF ¶ 37. Chmell gave Gaston a steroid injection, recommended further physical therapy, and noted that if non-operative measures were unsuccessful, Chmell would consider recommending a full knee replacement. Id. When Gaston returned to UIC in October 2013, he was still experiencing knee pain, so Chmell recommended a right knee arthroplasty (in other words, a full knee replacement). DSOF ¶ 39. Obaisi and the Wexford collegial review approved the arthroplasty within a month. PSOF ¶ 79; Pl. Supp. Exh. at 324.

         Unfortunately, the arthroplasty was long delayed. At least some of the holdup was due to the need for Gaston to get pre-surgery clearance from the pulmonary and cardiology departments at UIC to ensure that he was fit for surgery. DSOF ¶¶ 41-42. It is unclear when the pre-surgical clearance process ended. Gaston was cleared by cardiology in May 2014, PSOF ¶ 86, but the parties have pointed to no evidence of the date of pulmonary clearance.[10] In any event, during the time that Gaston waited for the surgery, he was seen regularly by medical staff and provided with pain medication, muscle relaxants, crutches, medical permits for low-bunk/low-gallery, and supportive knee braces. DSOF ¶ 42.

         After more than a year of waiting, Gaston returned to Chmell's office for a pre-surgery consult in December 2014. DSOF ¶ 43. The right knee replacement was performed on February 3, 2015, and was apparently successful. DSOF ¶ 44. Gaston had frequent follow-up appointments with Obaisi in the year after the surgery, and received multiple courses of physical therapy. DSOF ¶¶ 48-50. An August 2016 follow-up appointment with Chmell revealed that Gaston was healing well from the arthroplasty, despite continued pain. DSOF ¶ 53.

         C. Lower Back

         Gaston first reported lower back issues on February 3, 2014, when he complained to Obaisi of numbness in his left thigh. DSOF ¶ 55. Obaisi ordered x-rays of the lumbar spine and left hip. Id. Williams reviewed the x-rays with Gaston and diagnosed him with mild degenerative joint disorder of the lumbar spine. DSOF ¶ 56. She prescribed Mobic and Robaxin, and referred Gaston to Obaisi. DSOF ¶ 56; PSOF ¶ 83; DSOF Exh. D at 156. Obaisi saw Gaston in late March and scheduled him for a steroid injection, which took place in early April 2014. DSOF ¶ 57.

         In August 2014, Gaston heard a “pop” while bench pressing weights. DSOF ¶ 58. Gaston saw a nurse at the health care unit about the injury. Id. The nurse renewed Gaston's Tramadol prescription and advised him to raise the issue with Obaisi at an upcoming appointment. Id. Gaston did not mention the injury at his appointment with Obaisi. Id.

         Gaston next complained of hip pain to Obaisi on January 27, 2015. DSOF ¶ 59. Obaisi told Gaston that they would wait to address the issue until after his right knee surgery, which was scheduled for the following week. Id. In the year after the surgery, Gaston saw Obaisi frequently, but seemingly did not complain of back pain during those visits. See DSOF ¶ 48.

         In August 2016, Gaston reported low back pain and lower extremity numbness during an appointment with Chmell. Chmell examined Gaston's lower back and ordered an x-ray of the lumbar spine, which revealed arthritis. DSOF ¶ 60. During a follow-up visit in September 2016, Chmell recommended physical therapy and core strengthening. DSOF ¶ 61. Chmell has never recommended surgery for Gaston's lower back condition, and opined in a deposition that the standard of care for treating lumbar spine arthritis is non-operative measures such as medication. DSOF ¶¶ 60-61.

         D. Hernia (Obaisi)

         Gaston's last pertinent medical condition is a reducible right-sided inguinal hernia. DSOF ¶ 62. Gaston began to complain about the hernia in October 2013, but there is no evidence that Obaisi (or any other defendant) knew about it until September 28, 2014, when a nurse notified Obaisi that Gaston's hernia was painful and swollen. PSOF ¶¶ 77-78, 90; Pl. Supp. Exh. at 263. On October 7, 2014, Obaisi presented Gaston's case at a Wexford collegial review. PSOF ¶ 92. During the review, Obaisi and the consulting physician decided to delay surgical evaluation of the hernia until after Gaston's knee surgery. Pl. Supp. Exh. at 346. Instead, Gaston was given a hernia truss. DSOF ¶ 65.

         On March 2, 2015, Gaston again reported discomfort from his hernia to Obaisi. DSOF ¶ 66. Obaisi elected to re-present Gaston's case at collegial review, and Gaston was approved for a general surgery consult at UIC on March 10, 2015. Id; DSOF Exh. D at 172. The consult took place on July 20, 2015 (more than five months after it was approved). DSOF ¶ 67. The consulting physician recommended hernia repair surgery, which was performed on August 25, 2015. DSOF ¶¶ 67-68.

         II. Summary Judgment Standard

         Summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating summary judgment motions, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011), and must consider only evidence that can “be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). However, affidavits, depositions, and other written forms of testimony can substitute for live testimony. Malin v. Hospira, Inc., 762 F.3d 552, 554-55 (7th Cir.2014). The party seeking summary judgment has the initial burden of showing that there is no genuine dispute and that they are entitled to judgment as a matter of law. Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the adverse party must then “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.

         III. Analysis

         A. ...


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