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Murphy v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

November 19, 2019

ARRON MURPHY, Plaintiff,




         Plaintiff Arron Murphy brought this Eighth Amendment claim to challenge the treatment he received for an oral infection following a wisdom tooth extraction.[1] Defendants Wexford Health Sources, Inc. and Vipin Shah filed a joint motion for summary judgment. (Defs.' Mot. Summ. J., ECF No. 39). Magistrate Judge Beatty issued a Report and Recommendation (R. & R.) recommending that the Court grant Defendants' motion. (R. & R., ECF No. 55). Plaintiff objected. (P.'s Obj., ECF No. 56). After de novo review of the record, the Court ADOPTS the R. & R. AS MODIFIED BY THIS OPINION and GRANTS Defendants' motion for summary judgment.


         On Wednesday, May 4, 2016, Plaintiff-then an inmate at Robinson Correctional Center in Robinson, Illinois-had a wisdom tooth extracted by a prison dentist. (Pl.'s Consent Form, ECF No. 46-5). The dentist prescribed Plaintiff a pain reliever to take after the procedure but not an antibiotic. (Pl. Dep. 15, ECF No. 64-4).

         The following evening, Plaintiff was experiencing soreness and swelling, and he submitted a healthcare form requesting to be seen by medical staff in the morning. (Id. at 22). The prison dentist was not on site from Friday to Sunday. (Shah Dep. 8, ECF No. 44-1).

         On Friday, May 6, Nurse Rice examined Plaintiff. (Rice Dep. 4, ECF No. 44-6). Nurse Rice noted that Plaintiff was experiencing a soft-tissue infection and “softball size” swelling. (Pl.'s Progress Notes 1). Nurse Rice spoke to Defendant Shah-the on-site physician-in person. (Rice Dep. 5). Defendant Shah was surprised that the dentist did not prescribe Plaintiff an antibiotic following the wisdom-tooth extraction, and he prescribed Plaintiff a five-day course of penicillin. (Shah Dep. 8). Plaintiff believed that penicillin was “one of the most commonly chosen drugs by M.D.s for dental infection.” (Id. at 7). He only prescribed a five-day course, rather than 10, because the dentist would be available by that time to evaluate Plaintiff himself. (Id.). Defendant Shah instructed Nurse Rice to contact him as soon as possible if Plaintiff began experiencing shortness of breath. (Pl.'s Progress Notes 6).

         On May 7 at 1:00 AM, Plaintiff returned to the healthcare unit, again complaining of swelling and difficulty swallowing. (Pl.'s Progress Notes 3). Plaintiff was told by medical staff to return later in the morning. (Id.). Defendant Shah, who did not work on the weekend, was not contacted. (Shah Dep. 9). However, Defendant Shah testified that he did not believe that he should have been contacted since it typically takes several days for penicillin to provide relief, and Plaintiff was not experiencing any symptoms of acute emergency, such as fever and shortness of breath. (Id.).

         Plaintiff was reexamined at 9:00 AM. (Pl.'s Progress Notes 6). Nurse Rice noted that he was unable to obtain a blood sample due to Plaintiff's history of intravenous drug abuse. (Id.). This made it difficult for Defendant Shah to determine whether the infection was responding to the antibiotic. (Shah Dep. 18). Nurse Rice contacted Defendant Shah and notified him that Plaintiff's condition worsened. (Pl.'s Progress Notes 6). Defendant Shah then prescribed Plaintiff Solu-Medrol-a steroid injection-because he thought that the increased swelling was possibly due to an allergic reaction, and Solu-Medrol “helps the swelling and allergic reaction.” (Shah Dep. 10). In Defendant Shah's practice, Solu-Medrol “has always helped the bacteria to subside more along with the antibiotic.” (Id. at 11). He also instructed Nurse Rice to reassess Plaintiff at 2:00 PM. (Pl.'s Progress Notes 7). Defendant Shah was not concerned that the antibiotic was not working, however, since it “just started yesterday, ” and he did not think that Plaintiff needed emergency care at that time. (Id.).

         On Monday, May 9 at 7:20 AM, Plaintiff revisited the healthcare unit and was examined by Defendant Shah. (Shah Dep. 13). Plaintiff informed him that his throat was still swollen, making it difficult for him to eat. (Id.). Defendant Shah changed Plaintiff's course of treatment from penicillin to Rocephin-another antibiotic-because “it apparently works faster.” (Id.). Plaintiff was then placed on 23-hour observation to “see if the treatment is helping or [the] condition is getting stable or worse.” (Id.). However, Defendant Shah did not believe that Plaintiff's condition had worsened because he “didn't see . . . high temperature or any shortness of breath or any respiratory difficulty.” (Id. at 12).

         Plaintiff was admitted into the infirmary the next day. (Pl.'s Progress Notes 15). Defendant Shah became concerned that Plaintiff's condition was not improving: The swelling had not subsided, and Defendant Shah observed that the infected area in Plaintiff's mouth was turning grey. (Shah Dep. 14). At the time, Plaintiff maintained normal vitals signs. (Id. at 15). By 5:30 PM, however, Plaintiff experienced a 105-degree fever and chilling was visible. (Pl.'s Progress Notes 17). Defendant Shah instructed Plaintiff to take a hot shower and prescribed a pain reliever to reduce the fever. (Id.). Plaintiff was reassessed three times throughout the evening, and his fever dropped to 98.5 degrees by 11:15 PM. (Id. at 18-19).

         The following morning on May 11, 2016, Plaintiff reported for the first time that he “heard some whistling.” (Shah Dep. 16). Defendant Shah became concerned that Plaintiff was experiencing respiratory difficulty, (Id.), and he ordered that Plaintiff be immediately sent to the emergency room, (Pl.'s Progress Notes 21). Defendant Shah also determined that since the infection was not resolved with the steroid injection and the antibiotic, the issue was something more than a simple bacterial infection. (Shah Dep. 19).

         Plaintiff was sent to Crawford Memorial Hospital for a CT scan and later arrived at Carle Hospital for treatment. (Bailey Dep. 9, ECF No. 44-5). He was examined by Dr. Bailey, a Harvard-trained surgeon with a specialty in “diseases and diagnoses of the oral cavity and the head and neck.” (Id. at 5-6). Dr. Bailey agreed that penicillin is commonly prescribed to treat post-surgical infections and that it is an appropriate part of treatment. (Id. at 58-59). But although swelling and discomfort after oral surgery tends to get worse two-to-three days after surgery, it tends to improve after that point. (Id. at 56). Dr. Bailey concluded that Plaintiff was experiencing Ludwig's angina: a very rare and advanced infection in the neck requiring urgent surgical treatment. (Id. at 15-16, 70). Dr. Bailey conducted a three-part surgery that ultimately proved successful.

         Plaintiff filed suit in this Court in May 2018. He alleges that Defendant Shah's chosen course of treatment and the delay in sending him to the emergency room constitute Eighth Amendment violations. (Compl. 4-5, ECF No. 1). He further alleges that Defendant Wexford is liable under 42 U.S.C. § 1983, either under a vicarious liability theory or due to the existence of an express policy or widespread practice of not promptly administering antibiotics. (Id. at 5). Plaintiff also raises a state-law medical ...

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