Opinion
08-2017.
March 3, 2010
MEMORANDUM OPINION AND ORDER
Before the court are Defendant Mary Miller's summary judgment motion [100], Plaintiff's response [103] and Miller's reply [107].
Standard
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Any discrepancies in the factual record should be evaluated in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ( citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
"Summary judgment is the `put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed.R.Civ.P. 56(e). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If [the nonmovant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the nonmovant]." Fed.R.Civ.P. 56(e). Further, "[t]he plaintiff cannot merely allege the existence of a factual dispute to defeat summary judgment. . . . Instead, he must supply evidence sufficient to allow a jury to render a verdict in his favor." Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001). Specifically, the non-moving party "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Filipovic v. K R Express Systems, Inc., 176 F.3d 390, 390 (7th Cir. 1999). Failure by the non-movant to meet all of the above requirements subjects him to summary judgment on his claims.
Affidavits must be based on the personal knowledge of the affiant and "set out facts that would be admissible in evidence." Fed.R.Civ.P. 56(e) (emphasis added). Personal knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng. Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). "But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be based on flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.
Background
Plaintiff, Daniel Escobedo, N43563, is an inmate currently incarcerated in the Illinois Department of Corrections. Plaintiff brings this cause of action alleging that the Defendants, Wexford Health Sources, Dr. Bashir Ameji and Mary Miller have violated his 8th Amendment rights by being deliberately indifferent to his serious medical needs. Specifically, Plaintiff alleges that on April 6, 2007, he suffered tremors in his left arm and leg. Plaintiff attributed this to his prescription medication, Trazadone, having run out on April 5, 2007. Plaintiff's prescription for Trazadone was renewed and he returned to his cell house. The next morning, Plaintiff returned to the Health Care Unit on the order of a Correctional Officer due to difficulty in using his left leg. Plaintiff remained in the Health Care Unit under 24 hour observation until April 9, 2007. During that period he was not seen or examined by a physician. Against the advice of medical staff, on April 9, 2007, Plaintiff asked to sign himself out of the Health Care Unit. Plaintiff was instructed to wait to be examined by Dr. Ameji before leaving the Health Care Unit. Plaintiff refused to wait and signed himself out of the Health Care Unit against medical orders prior to being examined by Dr. Ameji on April 9, 2007. Plaintiff did not seek any medical attention at the Danville Correctional Center after April 9, 2007. Plaintiff was called to the Health Care Unit and examined by Dr. Ameji on April 17, 2007. On April 17, 2007, Dr. Ameji performed a physical examination of the plaintiff and performed a mental acuity examination. Defendant Ameji, claims the Plaintiff did not exhibit any signs of having suffered a stroke. Having experienced an stroke in the past, the Plaintiff believes he suffered a stroke again in April 2007. The plaintiff did not seek any other medical treatment while he was at the Danville Correctional Center. Mary Miller reviewed and denied a grievance written by Plaintiff about the alleged inadequate medical treatment he received in April of 2007. Plaintiff alleges Mary Miller was deliberately indifferent to his serious medical needs.
Undisputed Material Facts
Plaintiff asserts that this fact is immaterial. However, as slurred speech is an indication of someone experiencing a stroke, the court finds that this fact is material. Support this with Dr.'s exhibit.
The Plaintiff disputes this fact by pointing out that Dr. Ameji's official job description requires that he review and approve all referrals to outside hospitals or specialist. This statement does not dispute the fact that in an emergency situation, the nurses and physician's assistants had the authority to send an inmate to a hospital.
Defendant assert this fact is immaterial because there is no evidence Miller ever evaluated Plaintiff such that she could be deliberately indifferent for not sending him off-site. However, the court disagrees and finds it is material.
Because Miller does not remember the phone call and because she states that she can't talk to someone about an inmate's medical concerns, this fact is listed as disputed.
Discussion and Conclusion
Prison officials violate the Eighth Amendment proscription against cruel and unusual punishment when they display "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976). This encompasses a broader range of conduct than intentional denial of necessary medical treatment, but it stops short of "negligen[ce] in diagnosing or treating a medical condition." Id., at 106. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id.While the state has "an affirmative obligation under the Eighth Amendment to provide persons in its custody with a medical care system that meets minimal standards of adequacy," ( Meriwether v. Faulkner, 821 F.2d 408, 411 (7th Cir. 1987)), inmates are not entitled to unqualified access to health care. Hudson v. McMillian, 503 U.S. 1, 9 (1992). "A prisoner's dissatisfaction with a doctor's prescribed course of treatment does not give rise to a constitutional claim unless the medical treatment is so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate the prisoner's condition." Snipes v. Detella, 95 F.3d 586, 592 (7th Cir. 1996). Further, although a prisoner has the right to receive medical care, he does not have the right to determine the type and scope of care he personally desires. Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968), citing Lawrence v. Ragen, 323 F.2d 410, 412 (7th Cir. 1963). Further, the Eighth Amendment does not provide that an inmate is entitled to demand specific care, nor does it entitle him to the best care available. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). However, an inmate is entitled to adequate medical treatment. See Collingnon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998) (deliberate indifference may be established if "response so inadequate that it demonstrated an absence of professional judgment, that is, that nominally competent professional would not have so responded under the circumstances.").
In order to state a cognizable claim against a prison official, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend `evolving standards of decency' in violation of the Eighth Amendment." Estelle, 429 U.S. at 104. Deliberate indifference requires the prison official to act with a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 — (1994) quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991). Therefore, a prison official cannot be liable under the Eighth Amendment "unless he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847. Further, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. A prison official must reasonably respond to a prisoner's complaints, through the investigation and referral of a plaintiff's complaints, in order to be insulated from liability. Johnson v. Doughty, 433 F.3d 1001, 1011 (7th Cir. 2006).
However, the standard and analysis for medical professionals is "a little different" than that of other prison officials. Chavez v. Candy, 207F.3d 901, 905 (7th Cir. 2000). The professional judgment standard applies in Fourteenth Amendment claims to decisions made by professionals such as physicians and nurses within their area of expertise. Id. However, the Fourteenth Amendment professional judgment standard is comparable to the deliberate indifference standard and requires "essentially the same analysis." Collignon v. Milwaukee County, 163 F.3d 982, 988, 999 (7th Cir. 1998). First, a plaintiff must establish an objectively serious medical need. Id. "Then the plaintiff must show "(1) that the professional knew of the serious medical need, and (2) disregarded that need." An objectively serious injury or medical need is "`one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Chapman, 241 F.3d at 845, quoting Zentmyer v. Kendall County 220 F.3d 805, 810 (7th Cir. 2000) ( quoting Gutierrez v. Peters 111 F.3d 1364, 1373 (7th Cir. 1997)). An objectively serious condition also presents itself if "`failure to treat [it] could result in further significant injury or unnecessary and wanton infliction of pain.'" Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999), quoting Gutierrez, 111 F.3d at 1373. The trier of fact can conclude that the professional knew of the need from evidence that it was obvious and, further, it can be assumed that "what might not be obvious to a lay person might be obvious to a professional acting within her area of expertise."" Chavez, 207F.3d at 905 citing Collignon, 163 F.3d at 989.
In this case, the defendant argues that plaintiff has not established an objectively serious medical need. Specifically, Defendant asserts several arguments to support her contention that an objectively serious medical condition did not exist: (1) Plaintiff was not formally diagnosed with having a stroke; (2) Plaintiff had access to medical care in April 2007; (3) Plaintiff signed out of the health care unit before being seen by a doctor; (4) Plaintiff did not present any signs of a stroke when he was finally examined by Dr. Ameji.
The Plaintiff correctly points out that case law does not support the contention that a deliberate indifference claim should lose on summary judgment for lack of a physician's diagnosis. In lieu of a formal diagnosis, an objectively serious medical condition may be found when the ailment "is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Johnson, 444 F.3d at 584. In this case, Plaintiff was twice sent to the health care unit by "lay persons" who realized the plaintiff required medical care. On April 6, 2007, Plaintiff was originally sent to the health care unit by a guard who noticed his difficulty walking. After being sent back to his cell, a different officer sent Plaintiff back to health care unit for treatment after observing his impaired motor skills. While the opinion of two "lay persons" should be sufficient to establish a genuine issue of material fact, the facts of this case lend even stronger support. When Plaintiff was sent to the health care unit on April 6, 2007, the nurse, a trained medical professional, who first saw Plaintiff called Dr. Ameji — an action that Dr. Ameji himself stated would only occur if the nurse thought that a patient needed to be seen by a physician. (Attached to Co-Defendants. MSJ, Exhibit 2, Deposition of Dr. Bashir Ameji, p. 76, lines 1-3, 4-9.) The medical records indicate that the plaintiff was placed on a 24 hour observation in the infirmary on April 7. Two days later, on April 8, 2007, a nurse "okay'd" Plaintiff to be discharged, but Plaintiff was readmitted by a physician's assistant who determined that the Plaintiff should remain in the infirmary so he could see a physician in the morning. Plaintiff remained in the infirmary from 2:15 p.m., April 7 until 12:20 p.m., April 9, where he was treated and evaluated by several nurses and a physician assistant. When Plaintiff checked himself out, medical staff instructed him to stay until he could be examined by a doctor. Further, the Plaintiff's wife affies that in her observation of her husband when she visited him his left leg was dragging, his skin was a whitish-gray color and his eyes were bloodshot and he was unable grip her with his left arm. Thus, in a three-day period from April 6 to April 8, 2007, three "lay persons" and several medical professionals felt that Plaintiff's condition was so obvious as to warrant a doctor's attention. Based upon these facts, the court cannot find that the Plaintiff did not have a serious medical need. A jury could reasonably conclude based upon these facts that the Plaintiff has an objectively serious medical need.
It is ironic, considering the nature of the allegations in this case, that Defendant would cite Plaintiff's lack of a formal diagnosis as a reason for granting summary judgment. In fact, part of Plaintiff's claim is that he was unable to receive tests such as an MRI or CT scan, for the purposes of formally diagnosing his condition and receiving appropriate treatment, because Defendant and co-defendants refused to allow Plaintiff to be taken to a hospital. In addressing a motion for summary judgment premised, in part, on a defendant's lack of an objective diagnosis, the Seventh Circuit found a similar set of circumstances to be remarkable: "[T]he defendants fail to acknowledge that [plaintiff] spent two years trying to obtain objective. evidence, but was prevented from doing so by [defendant doctor and other medical professionals.]" Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005). The very fact that Plaintiff has been unable to receive the testing needed to obtain objective evidence of his condition is an issue worthy of jury contemplation, as it shows that Plaintiff was never sent to a hospital to receive the treatment he needed — part of the premise of this lawsuit.
Defendant argues that even if Plaintiff were able to establish that he had an objectively serious medical need, there is no evidence that this defendant, Mary Miller disregarded that need. Defendant asserts that she appropriately responded to Plaintiff's grievance and ensured that Plaintiff had access to medical care. However, the Seventh Circuit has specifically stated that the fact that a plaintiff received some treatment does not preclude success on a deliberate indifference claim, as a plaintiff "is not required to show that he was literally ignored by the staff . . . a jury could find deliberate indifference although the prisoner was not simply ignored." Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000). Further, the possibility that a doctor and nurse "did not do more" for a plaintiff because they believed he "did not really have a severe medical need is an issue for the jury." Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) ( emphasis added). In this case, Plaintiff does not dispute that he was taken to the health care unit on April 6, 2007. However, he believes that the treatment that he received was obviously inadequate so as to amount to deliberate indifference. The court acknowledges that the Plaintiff checked himself out of the infirmary, three days after he first presented himself and after waiting two days to see a physician. However, the plaintiff says he checked himself out without seeing the doctor because when he asked Dr. Ameji could he talk to him, Ameji responded no. Plaintiff believed Dr. Ameji did not want to see him, so he left the infirmary. Despite presenting at least some symptoms of a stroke, Plaintiff was not treated by a doctor until eleven days after he was first sent to the health care unit. When Plaintiff was first brought in, the only physician on call was not present. The nurse telephoned that physician, Dr. Ameji, an action that would only be undertaken if the nurse felt that the inmate needed to be seen by a physician. Rather than adhere to his standard procedure and have an inmate in need of a physician's treatment be sent to a hospital, Dr. Ameji had him confined in the health care unit for days without seeing a doctor. When the Defendant reviewed the Plaintiff's grievance, she knew this. After observing his difficulty walking and weak grip with his left arm, Plaintiff's wife returned home and she says she called Defendant. Maybe she did, maybe she did not. That would be an issue for the jury to determine. A jury could believe that Plaintiff's wife asked that Defendant look into the situation and ultimately offered to personally pay for Plaintiff to be sent to a hospital and that Defendant refused. (Plaintiff.s Exhibit 1, p. 2, ¶ 24.) A jury could find that Plaintiff tried to have conversations with her about his treatment on April 10 and 11, 2007 and Miller told him that she did not have time to speak with Plaintiff. Whether, after being made aware of Plaintiff's medical condition, with the facts before this court, Defendant's refusal to have Plaintiff sent to an outside physician rises to the level of deliberate indifference is a genuine issue of material fact to be decided by a jury.
Further, "a jury could find deliberate indifference from [a doctor's] refusal over a two year period to refer [the plaintiff] to a specialist" or authorize a diagnostic test, even though the plaintiff saw the prison doctor. Greeno, 414 F.3d at 655. Defendant reviewed the situation when Plaintiff's grievance regarding his condition came across her desk. As part of the grievance procedure, Defendant reached a determination of the grievance by "review of the chart." Defendant could not recall whether she consulted with Dr. Ameji as part of her review. In her grievance report, Defendant — despite repeated references in Plaintiff's medical records from April 2007 — failed to cite the fact that Plaintiff had experienced damage to the left side of his body and was having trouble walking. This Defendant is a nurse with 30 years of hospital emergency room experience — one that a jury could find would recognize the signs and symptoms of a stroke. Further, Defendant's report falsely claimed that Plaintiff was seen by a physician, Dr. Ameji, on April 9, 2007. Both Plaintiff and Dr. Ameji deny that any such examination occurred. Is she allowed to use such selective reporting of symptoms and a false statement regarding treatment by a physician to reject Plaintiff's request for a "full medical examination by an outside facility?" As she had daily conversations with Dr. Ameji about the medical care being provided to inmates in the clinic, Miller would know that in his absence, Dr. Ameji's practice was to send to the hospital those who were suffering a stroke. Health Care Unit Administrator, Miller claims she does not admit or provide health care or treatment to patients, but according to Dr. Ameji, Miller in performing her duty as a health care unit administrator Miller, did go and examine patients. These are issues of credibility. If a jury believes Ameji, rather than Miller, this is a factor that a jury could use to determine the issue of deliberate indifference by the Defendant, Miller. Perhaps the jury might believe that Miller deliberately chose to not examine the Plaintiff because she was indifferent to fact that perhaps he had or was actually suffering a stroke. Perhaps the jury might conclude the Miller was able to unilaterally send Plaintiff to an outside hospital for medical care. Considering the facts before this court, a jury might reasonably conclude that Defendant was deliberately indifferent to Plaintiff's serious medical need by refusing to allow him to see an outside doctor.
As there are genuine issues of material facts which must be decided by a trier of facts, this court must and does deny Defendant's summary judgment motion.
Based on the foregoing:
1. Defendant, Mary Miller's summary judgment motion [100] is denied. Plaintiff may proceed against Miller on his claim for deliberate indifference to serious medical need.