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Dean v. Wexford Health Sources, Inc.

United States District Court, C.D. Illinois

November 22, 2019

WEXFORD HEALTH SOURCES, INC., et al., Defendants.



         Plaintiff, incarcerated in the Taylorville Correctional Center, pursues claims arising from alleged delays in the diagnosis and treatment of kidney cancer. Defendants move for summary judgment on all but the medical malpractice claim against Defendant Dr. Nawoor and the corresponding respondeat superior claim against Defendant Wexford Health Sources, Inc.[1]

         The motions for summary judgment are denied. While a rational jury could find in Defendants' favor, a rational jury would not be compelled to do so.


         The Court views the admissible evidence in the light most favorable to Plaintiff, drawing reasonable inferences in Plaintiff's favor. The Court is not permitted to compare the strength of competing reasonable inferences. Stokes v. Board of Educ. of the City of Chicago, 599 F.3d 617 (7th Cir. 2010)(“In deciding a motion for summary judgment, neither the district court nor this court may assess the credibility of witnesses, choose between competing reasonable inferences, or balance the relative weight of conflicting evidence."). Defendants bear the burden of showing that no disputed material fact exists for trial and that no reasonable juror could find for Plaintiff. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Bunch v. United States, 880 F.3d 938 (7th Cir. 2018)(movant must “‘demonstrate why the record is so one-sided as to rule out the prospect of a finding in favor of the non-movant ....'”)(quoted cite omitted).

         The events occurred in the Taylorville Correctional Center (Taylorville), where Plaintiff remains incarcerated. The parties agree that on December 23, 2015, Plaintiff presented to Defendant Dr. Nawoor (Taylorville's Medical Director) with gross hematuria (visible blood in Plaintiff's urine). Dr. Nawoor ordered a complete blood count, urine strain (to check for kidney stones), and confirmed with a urine dipstick that Plaintiff had blood in his urine. Plaintiff had a history of kidney stones and treatment for kidney stones. Plaintiff had also had CT scans of his abdomen and pelvis in August 2014 and July 2015. Defendants maintain that these tests were normal, other than showing kidney stones, but one of Defendant's experts testified that the 2015 scan showed a mass in the upper pole of the right kidney. (Racenstein Dep. p. 34.)

         Plaintiff saw Defendant Dr. Einwohner (a Wexford nephrologist) by video (telemedicine) on January 7, 2016. Plaintiff reported painless hematuria for five days that had resolved. Dr. Einwohner emailed a Wexford physician and asked for a “collegial review” to consider “re-imaging and urology eval.” (Wexford Defs.' Undisp. Fact 30.) Plaintiff maintains that “re-imaging” meant a CT scan. Instead of a CT scan, Wexford approved an on-site renal and bladder ultrasound. The ultrasound was done on February 2, 2016, which was inconclusive as to kidney stones and reported “no mass lesions or evidence of hydronephrosis as to the right kidney.” (Wexford Defs.' Undisp. Facts 30, 58.) Plaintiff does not dispute that the radiologist reading the ultrasound “failed to recognize a diffuse infiltrative process in the right kidney.” (Wexford Defs.' Proposed Fact 57). One of Plaintiff's experts testified that the ordering physicians should read the ultrasound themselves, though acknowledged that some do not. (Metwalli Dep. p. 60). Plaintiff maintains that the unusually large right kidney reported on the ultrasound called for an investigation into the cause of the size differential between the kidneys, including cancer as a possible cause. (Barnett Report p. 6; Racenstein Dep. p. 45).

         A microscopic urinalysis ordered by Dr. Einwohner on February 8, 2016 showed blood in Plaintiff's urine. Dr. Nawoor then contacted Dr. Ritz for a collegial review, and the two determined that Plaintiff needed a urology referral and cystoscopy to determine the cause of the blood in Plaintiff's urine. (Wexford Defs.' Undisp. Fact 69.) Plaintiff saw an off-site urologist, Dr. Severino, on March 10, 2016. Medical records state that Dr. Nawoor tried to obtain an earlier appointment by contacting the off-site clinic. (Wexford Defs.' Undisp. Facts 80-82.)

         On March 10, 2016, Dr. Severino ordered a CT scan and a cystoscopy. Dr. Nawoor approved this plan four days later. Wexford's “Utilization Management Department” approved the cystoscopy on March 22 and approved the CT on March 30, 2016.

         Plaintiff had the CT scan on April 12, 2016. The CT “showed cancer in the right kidney with potential invasion of the vena cava, which is the main vein of the entire body that drains blood back to the heart.” (Wexford Defs.' Undisp. Fact 99.) Through Wexford's review process, the surgery was approved on April 21, 2016; a cardiac consultation for the surgery was approved on May 5, 2016; and, and a consultation with a cardiothoracic surgeon was approved on June 14, 2016. Plaintiff had the surgery on July 19, 2016 which took many hours and required three surgeons.

         On August 18, 2016, Dr. Nawoor obtained approval through the collegial review for an off-site oncology evaluation. On October 19, 2016, Plaintiff was prescribed a cancer medication (Votrient) which had to be approved through Wexford's pharmacy review process. Plaintiff began receiving Votrient on November 18, 2016. On March 2, 2017, Plaintiff was prescribed Opdivo, which was approved on March 20, 2017 through Wexford's pharmacy review process. Throughout this time, Defendant Galvin was a registered nurse acting as the Director of Nursing at Taylorville, and Defendant Mincy was the Health Care Unit Administrator at Taylorville.

         Plaintiff's expert, Dr. Barnett, opines that the above time-line for diagnosis and treatment was rife with unnecessary delays that taken together caused harm to Plaintiff: “[M]ore likely than not, Mr. Dean's cancer was contained within his kidney on December 23, 2015 and thus curable without the extended chemotherapy he is currently receiving, as it is indubitable that his cancer did grow and spread during 7 months until the cancer was removed.” (Barnett Report p. 23.) Plaintiff does not appear to dispute that the delay in the actual scheduling of the surgery was in large part attributable to the surgeons' challenge in coordinating their own schedules and preparing for the complicated surgery. However, Plaintiff maintains that the delays that were attributable to Defendants allowed Plaintiff's cancer to progress, which in turn increased the complexity of the surgery and caused the difficulty in scheduling the surgery.

         This case, then, is primarily about delays-whether there were unnecessary delays attributable to Defendants, and, if so, whether those delays, separately or taken together, caused Plaintiff harm. The parties vigorously dispute these issues with cites to admissible evidence, which demonstrates the need for a trial. The Court will not wade into each dispute to weigh the strength of the inferences; that is the jury's job. The focus of the Court's inquiry is whether a reasonable juror could find in Plaintiff's favor.

         Addressing the Eighth Amendment claims first, a reasonable juror could conclude that Wexford's policies and practices were deliberately indifferent to inmates like Plaintiff with potentially life-threatening illnesses and the need for fast diagnosis and treatment. According to Plaintiff, gross hematuria presents a 40-50% risk of malignancy, and painless hematuria like Plaintiff's is more suggestive of malignancy than hematuria with pain. (Barnett Report p. 17.) A reasonable juror could find that the practices and procedures regarding off-site care and the implementation of off-site recommendations are simply not designed for a nimble response to urgent needs. Drawing inferences in Plaintiff's favor, the individual Defendants knew this from their experience with those procedures. A reasonable juror could draw an inference of deliberate indifference from the absence of fast-track procedures for diagnosing and treating urgent, life-threatening medical conditions. See Daniel v. Cook County, 833 F.3d 728, 734 (7th Cir. 2016)(“An unconstitutional policy can include both implicit policies as well as a gap in expressed policies.”); Jones v. City of Chicago, 787 F.2d 200 (7th Cir. 1986)(“in situations that call for procedures, rules or regulations, the failure to make policy ...

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