Opinion
Case No. 3: 15-CV-1397-NJR-MAB
05-21-2019
CARLOS MONTANEZ, Plaintiff, v. DR. JOHN TROST, DR. STEPHEN RITZ, and WEXFORD HEALTH SOURCES, INC., Defendants.
REPORT AND RECOMMENDATIONS BEATTY, Magistrate Judge :
Plaintiff Carlos Montanez, an inmate at Pontiac Correction Center ("Pontiac") in Pontiac, Illinois, brought this action pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights. More specifically, he alleges that, while he was incarcerated at Menard Correctional Center ("Menard"), Defendants were deliberately indifferent to his serious medical needs when they denied and/or delayed providing treatment for his orbital bone fracture and diplopia.
The matter has been referred to United States Magistrate Judge Mark A. Beatty by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on a motion for summary judgment (Doc. 174). It is recommended the District Court adopt the following findings of fact and conclusions of law, and the motion for summary judgment (Doc. 174) be GRANTED IN PART, DENIED IN PART.
I. FINDINGS OF FACT
Following the Court's threshold review of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, Plaintiff was permitted to proceed on an Eighth Amendment claim for deliberate indifference against Defendants Trost, Walls, Brooks, and Butler (Doc. 38). Defendants Ritz and Wexford filed a motion for summary judgment on April 8, 2019 (Doc. 174). Plaintiff filed a response in opposition to the motion (Doc. 189). Defendants Ritz and Wexford then filed a reply to Plaintiff's response in opposition (Doc. 198).
Construed in the light most favorable to Plaintiff, the evidence and the reasonable inferences that can be drawn from it establish the following relevant facts for purposes of the instant summary judgment motion.
On October 7, 2015, while Plaintiff was incarcerated at Menard when he was assaulted by a fellow inmate (Doc. 1) and then taken to a local hospital until being transferred to Barnes-Jewish Hospital ("Barnes"). While at Barnes, medical personnel diagnosed Plaintiff with multiple facial fractures to the right side (Doc. 145-5, p. 9). Plaintiff was discharged from Barnes on October 8 with a recommendation to consult Ophthalmology for "possible blunt trauma to the globe." (Doc. 140-1, p. 2). He also received instructions to have a CT scan to diagnose further injuries and make follow-up appointments to be seen by Barnes's Ophthalmology Clinic within 2-3 weeks and by Barnes's Plastic Surgery Clinic within one week. (Doc. 145-5, p. 15).
Following his discharge, Plaintiff was transferred to Menard's Health Care Unit ("HCU"), where Dr. Trost assumed responsibility of Plaintiff's medical care (Doc. 145-3, p. 8). On October 14, Dr. Hager, a medical professional at Menard, evaluated Plaintiff and agreed with Barnes's recommendation that Plaintiff needs to follow-up as scheduled (Id. at p. 15). Plaintiff also reported experiencing blurry vision, pain, nausea, difficulty with eye movement and double and quadruple vision (diplopia). (Docs. 140-2, 140-3, 140-5). Dr. Trost then recommended that Plaintiff be seen by an ophthalmologist and Dr. Ritz, a physician working for Wexford Health Sources, Inc. ("Wexford") (the private company that contracts with Illinois to provide medical care to prisoners), approved the recommendation (Docs. 140-2, 140-3, 140-4). Wexford's approval is required whenever an inmate needs outside medical care. On November 5, 2015, Menard personnel scheduled an appointment for Plaintiff to been seen by Dr. Mark Nekola, an ophthalmologist with Quantum Vision on November 24, 2015 (Doc. 140-2). Dr. Nekola evaluated Plaintiff on November 25 and provided the following assessment: "Mr. Montanez gives conflicting symptoms but I do think he has an orbital floor fracture on the left side. There is no restriction to movement on exam. That said I would have an ENT take a look at XRays/Scans to decide if needs repair." (Id. at p. 13).
On November 25, in accordance with Dr. Nekola's recommendation, Dr. Trost wrote a request to Dr. Ritz, which he approved, for Plaintiff to been seen by an ENT (Doc. 140-2). However, the ENT declined to see Plaintiff and recommended Plaintiff instead be seen by a plastic surgeon (Doc. 140-3, 140-5). On December 7, Menard medical personnel scheduled an appointment with Plastic Surgery Consultants for Plaintiff to be evaluated on December 17. (Doc. 140-2). Dr. Richard Hehmann, a plastic surgeon employed at Plastic Surgery Consultants, evaluated Plaintiff and recommended that Plaintiff be seen by an oculoplastic surgeon to determine if Plaintiff's double vision would "benefit from surgery." (Doc. 140-7). Dr. Trost then requested a referral for an outside specialist, which Dr. Ritz approved on January 6, 2016. (Doc. 140-2). Menard's scheduling office had difficulty scheduling the appointment because outside providers refused to serve Plaintiff (Id.). Dr. Trost again requested a referral for an outside specialist which Dr. Ritz approved on January 15, and then the Menard scheduling office made an appointment for Plaintiff to be seen by an ophthalmologist (Id.).
On February 1, an ophthalmologist evaluated Plaintiff, noted that he was experiencing diplopia in all directions except with his straight forward gaze, and suggested that he "would not pursue surgical correction." (Id. at p. 29). In accordance with the ophthalmologist's recommendation, Dr. Couch, an oculoplastic surgeon, evaluated Plaintiff on March 17, 2016 and concluded, in part, that Plaintiff has "no limitation in eye movement in eye movement in the medial and lateral . . . I do not see signs or symptoms to suggest that the diplopia has been caused by fracture." (Id. at p. 30). Dr. Couch then recommended a "repeat of a CT scan of his orbits and return to discuss this further in the future." (Doc. 145-7, p. 3).
In April 2016, Plaintiff fell as he climbed down from his top bunk and alleges that it was due to his double vision (Doc. 145-7). Because of his fall, Menard medical personnel evaluated Plaintiff for his shoulder pain and provided him with pain medication (Doc. 140-2). On May 26, 2016, Dr. Trost evaluated Plaintiff and recommended physical therapy (Id.). Dr. Ritz approved physical therapy for Plaintiff and, in July 2016, medical personnel from Southern Illinois Health Care Rehabilitation Institute of Chicago treated Plaintiff (Id.). In August 2016, Plaintiff began refusing physical therapy sessions because he believed it was not benefiting his shoulder (Id.). On October 13, Plaintiff met with an optometrist to obtain new glasses to help address his vision issues, but the optometrist noted in his report that Plaintiff "refuses new gls litigation @ menard . . ." (Doc. 140-8).
II. CONCLUSIONS OF LAW
A. Summary Judgment Standard
The standard applied to summary judgment motions under Federal Rule of Civil Procedure 56 is well-settled and has been succinctly stated as follows:
Summary judgment is appropriate where the admissible evidence shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. A "material fact" is one identified by the substantive law as affecting the outcome of the suit. A "genuine issue" exists with respect to any such material fact . . . when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." On the other hand, where the factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is nothing for a jury to do. In determining whether a genuine issue of material fact exists, we view the record in the light most favorable to the nonmoving party.
B. Deliberate Indifference Standard
The Supreme Court has recognized that deliberate indifference to the serious medical needs of prisoners may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on a claim for deliberate indifference to a serious medical need, there are "two high hurdles, which every inmate-plaintiff must clear." Dunigan ex rel. Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). First, the plaintiff must demonstrate he suffered from an objectively serious medical condition. Id. at 591-92. Second, the plaintiff must establish the individual prison officials were deliberately indifferent to that condition. Id.
Here, Defendants do not affirmatively dispute the first element (see generally Docs. 140, 142), so the Court will assume for the purposes of this Recommendation that Plaintiff had an objectively serious medical condition. Thus, the only question for the Court is whether Defendants acted with deliberate indifference with respect to Plaintiff's condition.
To show that prison officials acted with deliberate indifference, a plaintiff must put forth evidence that prison officials not only knew that the prisoner's medical condition posed a serious health risk, but they consciously disregarded that risk. Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). "This subjective standard requires more than negligence and it approaches intentional wrongdoing." Id.; accord Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) ("Deliberate indifference is intentional or reckless conduct, not mere negligence."); McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) ("[N]egligence, even gross negligence does not violate the Constitution.").
For a medical professional to be held liable under the deliberate indifference standard, he or she must respond in a way that is "so plainly inappropriate" or make a decision that is "such a substantial departure from accepted professional judgment, practice, or standards," that it gives rise to the inference that they intentionally or recklessly disregarded the prisoner's needs. Holloway, 700 F.3d at 1073; Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)). In other words, a prison medical professional is "entitled to deference in treatment decisions unless no minimally competent professional would have so responded under those circumstances." Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (citation omitted).
"But deference does not mean that a defendant automatically escapes liability any time he invokes professional judgment as the basis for a treatment decision. When the plaintiff provides evidence from which a reasonable jury could conclude that the defendant didn't honestly believe his proffered medical explanation, summary judgment is unwarranted." Zaya v. Sood, 836 F.3d 800, 805 (7th Cir. 2016). With these standards in mind, the Court considers whether Plaintiff has put forward enough evidence to survive summary judgment with regard to Defendant Ritz.
i. Dr. Ritz
The Court's concern is whether Dr. Ritz acted with deliberate indifference to comply with Barnes's instructions that Plaintiff return to Barnes's Plastic Surgery Clinic within one week for a follow-up exam and return to Barnes's Ophthalmology Clinic within two to three weeks. Applying the deliberate indifference standard, the Court finds a reasonable jury could find Dr. Ritz's conduct regarding Plaintiff's care while at Menard amounted to deliberate indifference to Plaintiff's medical needs. Put simply, when taking the factual record as whole, a rational jury could find for Plaintiff.
Plaintiff argues, in part, "Dr. Ritz had full access to Mr. Montanez's medical file, including the recommendation that Mr. Montanez immediately follow-up with a plastic surgeon, yet did nothing to ensure Mr. Montanez received the recommended treatment." (Doc. 190, p. 1). Defendant argues, in part, "Dr. Ritz approved every single referral presented to him in collegial review regarding Plaintiff's orbital fracture and associated symptoms." (Doc. 175, p. 15).
A jury can infer "conscious disregard of a risk from a defendant's decision to ignore instructions from a specialist." Zaya, 836 F.3d at 806 (citing Gil v. Reed, 381 F.3d 649, 663-64 (7th Cir. 2004); Jones v. Simek, 193 F.3d 485, 490-91 (7th Cir. 1999)). "Instructions from a specialist are evidence that the defendant knew a particular course of treatment was recommended by at least one other medical profession at the time the defendant chose not to provide that treatment. In Zaya, the court found that a jury could conclude that the defendant doctor consciously disregarded the risks associated with delaying the plaintiff's return to a specialist for follow-up about his broken wrist.
Here, there are several genuine issues of material facts. First, there is the issue of whether Dr. Ritz knew of Barnes's recommendation that Plaintiff see a plastic surgeon for follow-up within a week of his discharge. Dr. Ritz indicates, depending on the situation, he does not extensively review an inmate's medical records when approving/denying a recommendation for outside medical care. Second, there is the issue of whether Dr. Ritz should have modified Dr. Trost's initial recommendation to include an off-site medical referral for Plaintiff to visit to a plastic surgeon. Dr. Ritz contends his role is not to challenge or modify Dr. Trost's referral request but determine whether the request is clinically appropriate and medically necessary. However, Dr. Ritz admits in the past he has suggested a different course of action when he believes a referral request is not clinically appropriate. Specifically, Dr. Ritz testified that:
Even last week, there was a referral request for an MRI of the cervical spine for a patient who had bullet fragments and other metal in his body. I said to the provider, "You know, I don't think that the MRI is going to be able to be done. I don't think that's a good test. Let's do a CT scan instead because it doesn't involve magnetism."(Doc. 189-10, p.46).
Considering the discrepancy in what Dr. Ritz's role in collegial review process entails, and whether he should have modified Dr. Trost's initial referral request given Barnes's recommendation, there are genuine issues of material fact and a reasonably jury could conclude Dr. Ritz consciously disregarded the risks associated with delaying Plaintiff's follow-up with a plastic surgeon. These material issues of fact as to Dr. Ritz should preclude summary judgment. The Court now asks whether Plaintiff has put forward enough evidence to survive summary judgment with regard to Defendant Ritz.
ii. Wexford
The Court's next concern is whether Wexford acted with deliberate indifference by maintaining a practice of condoning employee misconduct and hiring unqualified medical directors. Applying the Monell standard, Plaintiff fails to present evidence to support any type of causal link or connection between the alleged policy and claimed injury.
Under controlling precedent, a private corporation that contracts to provide essential government services can be held liable under § 1983, but not under a theory of respondeat superior. Shields v. Ill. Dep't of Corr., 746 F.3d 782, 789 (7th Cir. 2014), cert. denied, 135 S. Ct. 1024 (2015). The corporation can only be held liable if "the constitutional violation was caused by an unconstitutional policy or custom of the corporation itself." Id.; see also Monell v. Dep't of Social Serv. of N.Y.C., 436 U.S. 658 (1978). Plaintiff must "show the existence of an official policy or other . . . custom that not only causes but is the moving force behind the deprivation of constitutional rights." Teesdale v. City of Chicago, 690 F.3d 829, 833-834 (7th Cir. 2012) (quotation marks and citations omitted). In other words, to survive summary judgment, Plaintiff "must present evidence demonstrating the existence of an official policy, widespread custom, or deliberate act of a county decision-maker of the municipality or department." Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008) (internal citations omitted). Plaintiff must also show that the official policy or custom caused his constitutional violation. Id.
Plaintiff first argues Wexford was deliberately indifferent to his serious medical needs because they maintained a practice of condoning employee misconduct despite knowing it delayed treatments. More specifically, Plaintiff contends Wexford was aware of Dr. Trost's inadequate performance and professional misconduct yet failed to correct it. Plaintiff points to Dr. Trost's record of unauthorized departures which allegedly delayed treatments provided to patients scheduled at Menard. While the Court notes Plaintiff's reasoning, it fails to see a link between the alleged policy and claimed injury. Importantly, as previously outlined by the Court, the issue as to Dr. Trost is whether he was deliberately indifferent when he failed to follow Barnes's recommendation that Plaintiff be referred to a plastic surgeon within one week from his discharge from Barnes (Doc. 145-5, p. 15). Evidence of Wexford's alleged policy condoning Dr. Trost's unexcused absences simply has no bearing on whether Dr. Trost's failure to follow Barnes's specific recommendation ultimately amounts to deliberate indifference. Put simply, even when viewing the record in the light most favorable to the plaintiff, there is no evidence to support or even infer a finding that the alleged policy or custom caused Plaintiff's alleged constitutional violation. Therefore, the Court should grant Defendants' motion for summary judgment as it relates to this argument.
Plaintiff next argues Wexford was deliberately indifferent to his serious medical needs because they maintained a practice of hiring underqualified medical directors despite knowing it caused significant delays. To the extent Plaintiff is arguing Wexford's alleged practice of employing general surgeons who had no experience or certification in primary care as medical directors led to the deprivation of his constitutional rights, again there is insufficient evidence to survive summary judgment.
Plaintiff points to a 2014 Report ("the Report") authored by Dr. Ronald Shansky that explicitly identified Dr. Trost as an underqualified clinician, noting "[a]t Menard, the Medical Director position is filled by a clinician trained as a general surgeon" and "a general surgeon is underqualified to practice primary care." (Doc. 189-12, pp. 7, 8). Plaintiff notes Dr. Shansky published the Report prior to Wexford's treatment of Plaintiff for the underlying medical issues, which Plaintiff contends is evidence of notice.
Plaintiff claims the Report is admissible at trial and Defendant, of course, claims it is not. However, the Court need not issue a recommendation as to whether the Report is admissible because it does not change the outcome of the undersigned's recommendation. Even if the Report was admitted into evidence a causal link or connection between the alleged policy and claimed injury is still lacking.
But notice of a purported problem, or an allegation of notice, is simply not enough to get Plaintiff past summary judgment on this Monell claim. Here again (and viewing the record in the light most favorable to Plaintiff), there is simply no evidence that connects or even allows an inference of a connection between the alleged policy and the claimed injury. See Grieveson, 538 F.3d at 771 ("Further, the plaintiff must show that the official policy or custom was the cause of the alleged constitutional violation—the 'moving force' behind it.'") (quoting Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 514 (7th Cir.2007) (emphasis in original). While the Court can envision any number of scenarios in which an underqualified medical director may make poor health care decisions, the alleged policy of hiring underqualified medical directors simply has no bearing on whether Dr. Trost's failure to follow Barnes's specific recommendation amounts to deliberate indifference. Importantly, Defendants' point out this disconnect in their reply brief:
Plaintiff alleges Wexford hired Dr. Trost to perform duties of a primary care physician despite the fact that Dr. Trost had no experience in that role. This argument is immaterial to the matters in this case as Plaintiff's allegations are related to treatment he received for an orbital fracture and alleged associated symptoms. Dr. Trost is uniquely qualified in this area. Plaintiff continuously overlooks the fact that Dr. Trost is a trained general surgeon.(Doc. 198, p. 7). As such, the Court should grant Defendants' motion for summary judgment as it relates to this argument.
III. RECOMMENDATIONS
For the foregoing reasons, it is RECOMMENDED that Defendants' motion for summary (Doc. 174) be GRANTED IN PART, DENIED IN PART and that the Court adopt the foregoing findings of fact and conclusions of law. Specially, the Court should GRANT Defendants' motion as it relates to Wexford and DENY Defendants' motion as it relates to Ritz.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law are due fourteen (14) days after service (see attached Notice).
DATED: May 21, 2019
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge