United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT, UNITED STATES DISTRICT JUDGE
Arron Murphy brought this Eighth Amendment claim to challenge
the treatment he received for an oral infection following a
wisdom tooth extraction. 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.
PROCEDURAL & FACTUAL HISTORY
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).
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).
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).
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
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.).
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).
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).
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).
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.
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 ...