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Reckk v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

July 9, 2019

MICHAEL RECK, Plaintiff,



         Plaintiff Michael Reck, an inmate in the Illinois Department of Corrections (“IDOC”), brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff alleges several medical providers at Menard Correctional Center (“Menard”) were deliberately indifferent to his serious medical needs. Plaintiff is proceeding on the following claims:

Count 1: Eighth Amendment deliberate indifference claim against Wexford, Walls, and Trost for implementing, monitoring, and overseeing an ineffective sick call system;
Count 2: Eighth Amendment deliberate indifference claim against Wexford, Walls, and Trost for understaffing and failing to fulfill necessary positions within the prison medical system;
Count 4: Eighth Amendment deliberate indifference claim against Wexford, Trost, and Smith for failure to place Plaintiff in the chronic care clinic and on an individualized treatment plan;
Count 5: Eighth Amendment deliberate indifference claim against Dr. Trost for delaying his referral of Plaintiff to a GI specialist despite having diagnosed the need for such referral.

         Defendants Trost and Wexford filed a motion for summary judgment (Doc. 150) arguing Dr. Trost was not deliberately indifferent to Plaintiff's medical needs and Plaintiff has no evidence Wexford had an unconstitutional policy, practice, or procedure that caused a constitutional violation. Defendants Walls and Smith filed a motion for summary judgment (Doc. 152) arguing Walls had no personal involvement in Plaintiff's care and Smith was a nurse with no authority to direct Plaintiff's assignment to the general medicine chronic care clinic. Plaintiff filed a joint response under seal (Doc. 158).

         As an initial matter, Defendants Trost and Wexford filed a Motion to Strike (Doc. 160) Plaintiff's Exhibit 1 (disciplinary records of Dr. Trost) and Plaintiff's Exhibit 5 (excerpts of deposition testimony of Dr. Trost from Thomas v. Wexford, 15-cv-108-RJD). Plaintiff filed a Response (Doc. 165) and Defendants filed a Reply (Doc. 168). Defendants assert Trost's disciplinary records constitute inadmissible hearsay and are improper character evidence. Plaintiff argues the statements within the disciplinary records are not hearsay because they are statements of an opposing party - Wexford, and, assuming arguendo, any statements found in the disciplinary letters are hearsay, they constitute exceptions to hearsay. Plaintiff further argues Defendants offer no explanation as to how or why this contemporaneous documentary evidence of Dr. Trost's behavior is prejudicial or improper. The Court agrees and denies Defendants' motion to strike Exhibit 1.

         Defendants assert Exhibit 5 should be stricken because Plaintiff failed to disclose the deposition testimony during discovery. Plaintiff argues he had no discovery obligation to alert Defendants to the existence of Dr. Trost's deposition testimony in a prior case of which Defendants and Defendants' counsel were already aware. Again, the Court agrees. Plaintiff was under no obligation to disclose the existence of deposition testimony given by Defendant Trost himself. Trost and Wexford were already aware of the deposition testimony. Further, Trost was represented in Thomas v. Wexford by Cassiday Schade, LLP, the same firm that currently represents Defendants Wexford and Trost. Federal Rule of Civil Procedure 32 expressly allows the use of deposition testimony in the manner in which Plaintiff has used it. Defendants' motion to strike Exhibit 5 is denied.

         Factual Background

         On March 6, 2014, Plaintiff was transferred to Menard (Doc. 151-11 at 2). Dr. Trost was employed as Medical Director at Menard from November 25, 2013 to March 17, 2017 (Doc. 151-3). Since May 16, 2011, Wexford Health Sources, Inc. (“Wexford”) has contracted with the State of Illinois to provide certain medical services to inmates within IDOC, and specifically at Menard (Doc. 151-D). Plaintiff's Personal Records Plaintiff testified at his deposition that when he would submit a sick call request, he would make an identical copy of the request and keep it for his own records (Plaintiff's Deposition, Doc. 151-2 at 28, 31). Plaintiff's records include sick call requests dated July 10, July 14, July 19, August 10, August 18, September 14, and September 20, 2015, seeking medical assistance for rectal pain, inflammation, and a possible infection (Doc. 158-6). Plaintiff also testified he kept a journal documenting certain events, including filing sick call slips and medical visits (Doc. 151-10). Plaintiff's journal includes entries documenting that he filed sick call requests on July 10, July 19, August 10, August 18, September 14, and September 20, 2015 (Id. at 4). Plaintiff testified as follows regarding submission of the sick call requests: “I write them on a half sheet of paper, place them in the bars, which they pick up at 11:00 p.m. or so, in the mail pass, when they come to collect the inmate mail” (Doc. 151-2 at 9). When asked who picks up the sick call requests, Plaintiff testified, “Usually an officer on the third shift, ” not medical staff (Id.). Plaintiff testified that locked boxes were available at the end of the gallery but that he placed his sick call requests in the bars to be picked up by correctional staff (Id. at 26). Plaintiff testified he also informally notified various Menard staff members of his medical condition and requested medical assistance on multiple occasions (Doc. 151-2 at 26).

         Plaintiff's Medical Records

         On July 26, 2015, medical staff was in receipt of an undated request from Plaintiff stating, “I have been having scrotal pain, redness, and some mild swelling. The skin is extremely sensitive to touch and feels like being rubbed with sand-paper. Please help, this has been going on for about two weeks with no let up in symptoms” (Doc. 151-15 at 6). There is a notation, “Refer to MDCL” (Id.). According to Menard Sick Call Logs, Plaintiff was seen the next day by an RN on July 27, 2015, during nurse sick call for testicular pain (Doc. 151-14 at 1). The noted plan was to refer Plaintiff to DR/PA/NP (Id.). Plaintiff's medical records do not show that he was scheduled for an appointment to see a physician or NP until September 1, 2015 (Doc. 151-2 at 11, Doc. 151-1 at 1-6). In response to a grievance filed by Plaintiff later in September, Defendant Walls noted that “there was one kite in your medical file and Medical Records said you were scheduled but there was a computer glitch” (Doc. 153-2).

         On September 1, 2015, Plaintiff saw Dr. Trost who noted that Plaintiff had a history of Crohn's disease and was last prescribed Humira (biologic medication used to treat Ulcerative Colitis) in 2011 (Doc. 151-1 at 6). Trost noted Plaintiff has had a fistula (abnormal connection between two hollow spaces) for one month and has a history of a fistulotomy (surgical procedure to treat fistulas) (Id.). Trost documented a fistula on Plaintiff's left buttock (Id.). Trost prescribed Levaquin 750mg (antibiotic) for 14 days and Pentasa 750mg (anti-inflammatory medication that treats Ulcerative Colitis) for six months and ordered a one-month follow-up appointment (Id.). The following day, Plaintiff saw RN Smith complaining that “it's leaking now” (Id.). Smith noted the area was assessed the day prior by Trost and the left buttock was now draining (Id.). She noted alteration in skin integrity and instructed Plaintiff to keep the area clean and dry and gave him gauze (Id.). Defendant Smith testified she did not do an additional assessment on 9/2/15, but noted that Dr. Trost assessed Plaintiff the day before on 9/1/15 (Doc. 151-5 at 26).

         On September 12, 2015, Plaintiff saw a non-party RN complaining that “it busted again” and self-reported that his fistula opened up (Doc. 151-1 at 7). The RN examined Plaintiff and did not observe any active draining, but noted an open area approximately 1 cm by 1 cm that was “beefy red” (Id.). Additionally, the RN noted Plaintiff was taking Levaquin and that he was scheduled to see Trost in three weeks (Id.). Plaintiff was instructed to keep the area clean and dry and provided gauze and band-aids (Id.).

         On September 17, 2015, Plaintiff saw RN Smith and complained that he needed to have surgery “on this” (Doc. 151-1 at 9). Smith noted Plaintiff complained of constant rectal bleeding related to a fistula and reported that he had a history of fistula with surgical repair (Id.). Smith documented Plaintiff's skin was warm and dry, his color was natural, and his respirations were even and unlabored (Id.). Plaintiff complained of frequent dressing changes related to rectal bleeding and RN Smith provided gauze and referred him to a physician (Id.). Smith testified she did not perform an examination of Plaintiff's buttocks on that date (Doc. 151-5 at 27).

         On September 24, 2015, Plaintiff saw a non-party RN for “boils” on his left buttock (Doc. 151-1 at 10). He reported that the boil drained with “white stuff” (Id.). The RN took his vitals and noted the boil on his left buttock was the size of a nickel (Id.). The RN examined Plaintiff and noted there was no drainage seen and that the area looked like a healed boil (Id.). The RN instructed Plaintiff to cleanse gently with antiseptic soap (Id.). A notation was made to “check to see if in for follow up” (Id.). The RN further instructed Plaintiff on hygiene and symptoms of cellulitis and told him to return to sick call if those symptoms occurred or if the pain worsened, new boils appeared, or he developed a temperature (Id. at 11).

         On September 27, 2015, a non-party Correctional Medical Technician (“CMT”) documented Plaintiff was scheduled on the physician call line from Nurse Sick Call, but the physician did not show and Plaintiff was not seen, so the CMT made a notation to recall Plaintiff (Doc. 151-1 at 12). In Plaintiff's September 27, 2015 journal entry, he noted “Med Pass for Dr. Butalid - Never called (MD No Show)” (Doc. 151-10 at 5).

         On October 2, 2015, Plaintiff saw Dr. Trost (Doc. 151-1 at 12). Plaintiff's vitals were taken and Trost noted Plaintiff's fistula persisted, his last colonoscopy was in 2012, and he was prescribed Humira in 2011 (Id.). Trost noted there was no improvement and prescribed Levaquin 750mg for 14 days and referred Plaintiff to Collegial Review for a G.I. consultation (Id.). Plaintiff was also prescribed ibuprofen 800mg to be taken three times per day as needed for one month (Id. at 55-56). There is a dispute between Plaintiff and Defendant Trost as to whether Trost “examined” Plaintiff on October 2, 2015. On that date, Trost completed two Medical Special Services Referral and Reports (Id. at 27-28). The first was for Plaintiff to be sent to a gastroenterologist (“G.I.”) for a colonoscopy. In the rationale he noted Plaintiff had uncontrolled Crohn's disease and his last colonoscopy was in 2012 and he was prescribed Humira in 2011 with good result (Id. at 27). The second was for a consultation with a gastroenterologist for an anal fistula and his rationale noted Plaintiff had Crohn's disease and a non-healing fistula (Id. at 28).

         On October 9, 2015, Trost's referral for a diagnostic colonoscopy was approved (Doc. 151- 1 at 29). On October 19, 2015, Plaintiff saw RN Smith requesting supplies for his draining fistula (Id. at 13). She noted Plaintiff had drainage with his fistula and she provided triple antibiotic ointment and gauze (Id.). Smith instructed Plaintiff to drink plenty of fluids and to use stool softeners and she also noted Plaintiff was awaiting Collegial approval (Id.). On October 29, 2015, Trost presented Plaintiff to Collegial Review for a G.I. consultation and noted in the medical record the request was approved (Id. at 14).

         On November 2, 2015, Plaintiff saw Smith and asked when he would “get this taken care of” (Doc. 151-1 at 15). Plaintiff complained of rectal bleeding with fistula and hemorrhoid signs and symptoms (Id.). Smith issued him gauze, noted he had hemorrhoids, and instructed him to keep the area clean and dry (Id.). Smith testified she did not examine Plaintiff's buttocks (Doc. 151-5 at 31). On November 4, 2015, Plaintiff saw a non-party RN who noted Plaintiff self-reported he was out of ibuprofen and antibiotics and had a history of bleeding fistula (Doc. 151-1 at 15.). Plaintiff requested ibuprofen and antibiotics (Id.). The RN called Trost who gave telephonic orders prescribing ibuprofen 800mg to take three times a day for 2 months and Levaquin 750mg for 14 days (Id.). Also, on November 4, 2015, the gastroenterologist consultation was documented approved by Wexford Utilization Management (Id. at 30).

         On November 5, 2015, Plaintiff saw a non-party RN who provided instructions for preparation for his colonoscopy the following day (Doc. 151-1 at 16). On November 6, 2015, Plaintiff left Menard on medical furlough for his colonoscopy (Id. at 17). Dr. Leyland Thomas performed Plaintiff's colonoscopy at Touchette Regional Hospital in Centreville, Illinois (Id. at 31-41). Thomas took three biopsies of the large intestine, two of which came back normal and one came back with focal active colitis with no dysplasia or malignancy. Thomas documented these results were consistent with focal mildly active Crohn's disease (Id. at 40). Thomas noted Plaintiff had a couple of dimpled areas on the perianal skin suggestive of fistula openings (Id. at 39). Plaintiff returned from medical furlough on the same date with no complaints of pain or bleeding (Id. at 18).

         On November 9, 2015, the Medical Furlough Clerk noted that Plaintiff was scheduled for his G.I. consultation for Crohn's disease and his non-healing fistula (Doc. 151-1 at 19). The clerk noted that Dr. McCain's first available appointment was December 24, 2015 (Id.).

         On November 16, 2015, RN Smith did not see Plaintiff but noted a request was sent in for a follow-up for his colonoscopy (Id. at 20). Plaintiff self-reported that his bleeding continued with his fistula/abscesses and that he had a pain of 8 out of 10 (Id.). Smith referred Plaintiff for a follow-up with a physician for the colonoscopy results and issued supplies (Id.). Also, on November 16, 2015, Plaintiff saw non-party physician Dr. Siddiqui, for his two-year physical exam (Id. at 59-61). Siddiqui noted Plaintiff had Crohn's disease and Plaintiff refused a rectal exam (Id. at 61). Plaintiff disputes that he refused an exam. A non-party nurse also saw Plaintiff on November 16, 2015 and noted Plaintiff complained of a fistula or infected boil and complained of intermittent pain of 6 out of 10 and discharge (Id. at 62). The nurse noted Plaintiff was to be reviewed for collegial and referred him to a physician (Id.).

         On November 17, 2015, it was noted Plaintiff was scheduled on the Nurse Practitioner call line for his medical furlough return, but there was no need to see Plaintiff because the medical furlough return appointment was already done on November 6, 2015 after his colonoscopy (Id. at 21). It was documented he would be recalled and could access sick call as-needed (Id.). On November 24, 2015, Plaintiff saw a non-party NP for a follow-up post-colonoscopy (Id. at 22). The NP noted a visual exam on Plaintiff's rectum and redness on buttocks (Id.). On November 28, 2015, a non-party RN noted Plaintiff was sent to the Emergency Room via ambulance for a seizure (Id. at 23, 42-28). Plaintiff returned to Menard later that day and it was noted that the seizure was possibly psychogenic or fake and that Plaintiff was malingering (Id. at 25).

         On December 24, 2015, Plaintiff saw gastroenterologist Dr. Mack McCain (Id. at 51-52). His assessment was that Plaintiff had Crohn's disease and a rectal fistula (Id. at 51). His impression was to restart Plaintiff on Humira and refer him to a surgeon to evaluate his perirectal fistula and infection, continue Cipro, and order tuberculosis skin test and blood work (Id.). On return to Menard, the NP ordered blood work and a tuberculosis skin test (Id. at 26).

         On December 28, 2015, Trost submitted a Medical Special Services Referral and Report for Plaintiff for a general surgery consultation and the rationale for his referral was for evaluation/treatment of Plaintiff's anal fistula (Id. at 49). On December 31, 2015, Plaintiff requested renewal of his ibuprofen and Hytrin prescriptions (Id. at 64). The medical records state Plaintiff signed a refusal for nurse sick call (Id.). ...

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