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Toscano v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

March 16, 2018

RIGOBERTO TOSCANO, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., Dr. SHAH, and DR. OSMUNDSON, Defendants.

          REPORT AND RECOMMENDATION

          STEPHEN C. WILLIAMS United States Magistrate Judge

         Introduction

         Pursuant to 42 U.S.C. § 1983, pro se Plaintiff Rigoberto Toscano filed his complaint alleging deliberate indifference against Dr. Osmundson, Dr. Shah, and Wexford Health Sources, Inc. for the treatment of his bilateral inguinal hernias. This matter is before the Court on Defendants' motion for summary judgment (Docs. 88 and 89). Plaintiff has filed a response (Doc. 96) in opposition to the motion. The matter has been referred to United States Magistrate Judge Stephen C. Williams by United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (c), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a). Based on the following, it is RECOMMENDED that the Court GRANT Defendants' motion for summary judgment.

         Factual Background

         Plaintiff filed his complaint against Defendants on February 29, 2016 (Doc. 1). As narrowed by the Court's threshold order (Doc. 10), Plaintiff's complaint alleges that he suffers from a hernia and that neither of the defendant doctors provided treatment for Plaintiff (Doc. 10, p. 2). As to Defendant Wexford Health Sources, Inc. (hereinafter “Wexford”), Plaintiff's complaint alleges that the company will not authorize the procedure due to cost considerations.

         At that time the events that make up the claim in his lawsuit took place, Plaintiff was housed at Robinson Correctional Center. Plaintiff has two inguinal hernias located in his groin (Doc. 89-1, p. 2). Plaintiff was lifting weights in March 2015 and the next day, while playing soccer, he felt pain in his groin (Id.). As a result of the pain he felt, he put in a sick call request (Id.). Plaintiff was seen by a nurse on March 24, 2015 (Id. at p. 3; Doc. 89-2, p. 2). Plaintiff also believes that he saw Dr. Shah on that day as well as the nurse, but is not positive (Doc. 89-1, p. 2). The medical records indicate that he saw Dr. Shah on March 26, 2015 (Doc. 89-2, p. 3). Shah diagnosed his pain as a muscle strain and prescribed ibuprofen (Doc. 89-1, p. 3; 89-2, p. 3).

         Plaintiff was seen again in the healthcare unit on June 3, 2015 for pain in his groin area (Doc. 89-2, p. 4). It was noted at that time that he had no anatomical abnormalities or signs of a hernia (Id.). He again was instructed to avoid heavy lifting and to follow-up in three to five days (Id.). Plaintiff was seen by the nurse again on June 9, 2015 for pain in his right groin (Doc. 89-2, p. 5). He was referred to the doctor (Id.).

         Plaintiff saw Dr. Osmundson on June 16, 2015 for pain in his right side (Doc. 89-1, p. 3; 89-2, p. 6). Plaintiff testified that Osmundson noted a bulge on his right side and told him that it was a hernia (Doc. 89-1, p. 3). Osmundson told him that the hernias were very little and that they would go away on their own (Id.). Plaintiff recalled asking about surgical options and Osmundson informed him that they were too small for surgery (Id.). Osmundson found no tenderness and prescribed Fibercon, increased fluid, exercise, and Tylenol as needed (Doc. 89-2, p. 6).

         Plaintiff saw the nurse again on November 6, 2015 (Doc. 89-2, p. 7; 89-1, p. 7). Plaintiff informed the nurse that he had a hernia in his right groin and he was working in the dietary which caused it to flare up (Doc. 89-2, p. 7). Plaintiff testified that because the doctor was not in the office that day, he was given a “lay in” so that he did not have to work until he saw the doctor (Doc. 89-1, p. 7; 89-2, p. 7-8). Plaintiff indicated that he lifted crates of milk in the dietary and that it would sometimes cause him pain with his hernia (Id. at p. 6). He testified that the hernia only hurt when it popped out and that if he pushed the bulge back in, it would stop hurting (Id. at p. 7). The nurse noted that his hernia was not bulging at the time of the examination (Doc. 89-2, p. 8).

         Plaintiff was seen by a doctor on November 10, 2015 (Doc. 89-2, p. 9). At that time, the doctor noted an inguinal hernia and scheduled an ultrasound (Id.; 89-1, p. 7). The ultrasound was approved by Wexford on November 18, 2015 (Doc. 89-2, p. 10, 17). Plaintiff received an ultrasound on December 4, 2015 (Id. at p. 16). The ultrasound confirmed that Plaintiff had small bilateral inguinal hernias (Id.). Plaintiff testified that Shah informed him at a January 11, 2016 visit that there were two hernias but that they were small and no further treatment was needed unless they became incarcerated or strangulated (Doc. 89-1, p. 7, 9). Shah told him that they were not going to do surgery because they were not strangulated or life-threatening (Id. at p. 9; 89-2, p. 12). The January 11, 2016 visit was his last visit with doctors while at Robinson Correctional Center (Id. at p. 9). Plaintiff transferred from Robinson in August 2017 (Id. at p. 8).

         Plaintiff testified that he later put in for another sick call but that the nurse did not let him see the doctor (Doc. 89-1, p. 7-8). The nurse told him that they were not going to prescribe pain medication or do anything further for his hernias unless they were incarcerated (Id. at p. 8). While he did not get any more Tylenol or ibuprofen from the healthcare unit, he was able to buy the pain medication in the commissary (Id.). He took the pain medication when he was in pain (Id.). While the pain medication helped the pain, Plaintiff testified that he still had to push the hernia back in to stop the pain completely (Id.).

         Plaintiff alleges that Dr. Shah was deliberately indifferent for not identifying the hernias at the March 2015 visit (Doc. 89-1, p. 9). He also alleges that both Shah and Osmundson were deliberately indifferent for not referring Plaintiff for surgery for his hernias (Id. at p. 9-10). Plaintiff testified that he wants surgery to fix the hernias but acknowledged that no doctor has told him that he actually needs surgery (Id. at p. 10). Plaintiff indicated that the doctors told him surgery was not necessary unless the hernias were incarcerated (Id.). At the time of his deposition, Plaintiff testified that he recently did not have any pain from his hernias (Doc. 89-1, p. 4, 10). Sometimes the hernias push out and cause him pain (Id. at p. 5). He sometimes has pain the next day after running although he did not start running until after he was transferred from Robinson Correctional Center (Id. at p. 4-5). Plaintiff testified at his deposition that while the hernias are still present, he had not really felt them like he used to feel them (Id. at p. 10).

         Legal Standards

         A. Summary ...


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