Corley v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KEON CORLEY,

Plaintiff,

v. Case No. 3:16-CV-850-NJR-GCS

WEFORD HEALTH SOURCES, INC.,

JOHN TROST, FE FUENTES, and

STEPHEN RITZ,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Keon Corley alleges that, after he broke his finger while he was

incarcerated at Menard Correctional Center in March 2015, Defendants Wexford Health

Sources Inc., John Trost, Fe Fuentes, and Stephen Ritz were deliberately indifferent to his

serious medical needs in violation of his Eighth Amendment rights. Before the Court is a

motion for summary judgment filed by Defendants (Doc. 92). For the reasons explained

below, the Court grants in part and denies in part Defendants’ motion.

FACTUAL BACKGROUND

Three claims from Corley’s Complaint, as identified in the Court’s threshold order

(Doc. 7), remain pending:

Count 5: Eighth Amendment deliberate indifference to serious medical

need claim against Defendant Wexford Health Sources, Inc.

for maintaining a policy that led to inadequate medical care,

delayed medical care, improperly trained medical staff, lack

of follow up care, and refusal of pain medication, with the

objective of saving money;

Count 10: Eighth Amendment deliberate indifference claim against

Defendant John Trost and Defendant Fe Fuentes, both

doctors, for denying pain medication stronger than Motrin to

treat Corley’s injured hand; and

Count 12: Eighth Amendment deliberate indifference claim against

Defendant Stephen Ritz, a doctor, for failing to allow

adequate access to physical therapy via a cuff pass and for

denying ongoing care recommended by an external provider.

Many of the facts underlying Corley’s claims in this action are undisputed by the parties.

Corley has been an inmate in the custody of the Illinois Department of Corrections

since 2005. At all times relevant to this action, he was incarcerated at Menard Correctional

Center. Defendant Fe Fuentes worked as a physician at Menard Correctional Center from

June 2008 through July 2015; she was an employee of Defendant Wexford Health Sources,

Inc. Defendant John Trost was a physician employed by Wexford and worked as the

Medical Director at Menard from November 2013 through March 2017. Defendant

Stephen Ritz, a doctor, has been employed by Wexford as the Corporate Utilization

Management Medical Director since September 2014.

On March 2, 2015, Corley visited the healthcare unit at Menard on a nurse sick call

and was evaluated by Martha Oakley, a licensed practical nurse (“LPN”). He complained

about right finger pain. On Corley’s medical records, Oakley circled “MD referral.”

Defendants interpret this referral as one to a nurse practitioner or a medical doctor, but

Corley maintains that he should have been referred to a medical doctor for evaluation.

(Doc. 93, p. 3 at ¶ 6; Doc. 98, p. 2 at ¶ 6).

Corley was evaluated by a nurse practitioner on March 3, 2015, and he continued

to complain of pain in his right ring finger. The nurse practitioner noted that Corley was

alert and oriented, that he did not display apparent distress, and that he had swelling and

limited range of motion to the third, fourth, and fifth digits of his right hand. The nurse

practitioner ordered an x-ray of Corley’s right hand to rule out a fracture. The x-ray

revealed a displaced fracture of the fourth proximal phalanx with associated soft tissue

swelling.

Following the x-ray, the nurse practitioner admitted Corley to the healthcare unit,

prescribed Motrin for his pain, and submitted an urgent request for collegial review,

seeking to refer Corley for an orthopedic evaluation. The parties disagree as to the

purpose of collegial review. Defendants describe it as a conference between physicians to

evaluate treatment and recommendations, but Corley cites to Defendant Ritz’s deposition

to support his position that it is an opportunity to discuss cases with clinical staff at the

facilities and to look at the medical necessity and general management of care that may

have to be provided off-site. (Doc. 93, p. 4 at ¶ 9; Doc. 98., p. 2 at ¶ 9; Doc. 98-2). Dr. Ritz

approved the nurse practitioner’s request, and Corley was scheduled for an orthopedic

evaluation on March 4, 2015.

Due to weather, Corley’s evaluation was rescheduled to March 6, 2015, at the

request of the orthopedic specialist, but he was seen by Defendant Fuentes that day before

the appointment was canceled. She noted that his splint was intact and that he had good

circulation to this injured finger. She examined him again on March 5, and Corley

reported ongoing pain. Fuentes recommended that he continue his current plan of care.

At 8:30 a.m. that day, Corley saw a nurse and told her that his hand hurt but that the

Motrin helped. At 3:05 a.m. on March 6, 2015, Corley reported that he was in pain to a

nurse and asked specifically for Motrin, stating, “I would like some Motrin please.”

(Doc. 93-1, p. 12).

Dr. Bret Miller at the Orthopaedic Institute of Southern Illinois evaluated Corley’s

injury on March 6, 2015. He determined that Corley had a right ring finger proximal

phalanx fracture. Dr. Miller recommended a closed reduction and percutaneous pinning

of Corley’s ring finger.

Corley returned to Menard after the appointment and was evaluated by a nurse.

The nurse spoke with Defendant Trost about Dr. Miller’s report. As the report did not

contain any pain medication recommendations, Dr. Trost ordered that Corley continue

with Motrin for pain, as previously prescribed. Dr. Ritz approved the surgery

recommended by Dr. Miller on March 6, 2015. Corley was scheduled for surgery on

March 9, 2015. In accordance with Dr. Miller’s pre-surgical instructions, Dr. Trost ordered

that Corley’s Motrin be held for 72 hours prior to surgery.

Dr. Miller performed the surgery on Corley’s finger on March 9, 2015. Corley

returned to Menard after surgery and was evaluated by a nurse. The nurse reported on

Corley’s condition to Dr. Trost, who put in a telephone order for a Motrin prescription

with instructions to schedule Corley for an evaluation with a doctor the following

morning. Dr. Trost testified at this deposition that, in cases like Corley’s, he would start

out prescribing a non-narcotic pain medication, like Motrin, and see how a patient does.

If the non-narcotic didn’t work, then he would prescribe a stronger pain medication, like

a narcotic, to attempt to control pain.

At her deposition Dr. Fuentes testified that she would have prescribed Tramadol

instead of Motrin had she seen Corley when he returned from his surgery because of the

amount of pain caused by the surgery. (Doc. 98-5, p. 12). Dr. Fuentes evaluated Corley on

the morning of March 10, 2015, and he complained of continued right-hand pain. She

examined his hand and prescribed Tramadol, an opiate, for two days. Dr. Fuentes chose

to limit the prescription to 48 hours because the pain and swelling lessens after the first

postoperative day. When the healthcare unit sees an inmate daily after surgery, the

prescription can be extended, if needed, she explained. (Doc. 98-5, p. 12).

Dr. Fuentes saw Corley again on March 11, 2015, and recommended that he

continue with the current course of treatment. Dr. Trost also submitted a request for

collegial review that day, and Corley was approved for a post-operative follow-up with

Dr. Miller, which was scheduled for March 19, 2015. Dr. Fuentes examined Corley again

on March 12, 2015. She ordered that his status be changed to “chronic” so that he would

not be charged further for pain medication. She renewed Corley’s Motrin prescription on

March 13, 2015, and evaluated him again on March 18, 2015. Corley reported no

complaints during that visit, and Dr. Fuentes recommended that he be released from the

infirmary and placed on a security hold, which allowed him to stay in the healthcare unit

for safety reasons due to his inability to use his right hand.

Corley went to his follow-up appointment with Dr. Miller on March 19, 2015. He

reported that he was doing well post-surgery and that he had very little discomfort and

no complaints. Dr. Miller recommended that Corley follow-up in two weeks for x-rays of

his right hand.

On April 13, 2015, Corley reported swelling and pain in his right hand after

striking it on a wall on April 7, 2015. Dr. Fuentes ordered, by telephone, that an updated

x-ray of Corley’s hand be taken. An x-ray taken the next day showed two metallic pins

across a fracture with satisfactory bony alignment. On April 16, 2015, Corley’s follow-up

with Dr. Miller, which was supposed to happen within two weeks of their March 19

appointment, was scheduled for April 22, 2015.

The paperwork with the request for the follow-up appointment did not make it

back to Menard with Corley on March 19, 2015. Defendants submit that a medical

furlough clerk, and not Dr. Ritz, Dr. Trost, or Dr. Fuentes, is responsible for scheduling

off-site follow-up appointments for inmates at Menard. Corley points out that Dr. Ritz

testified that Wexford is partly responsible for facilitating off-site inmate medical

appointments. (Doc. 93, p. 9 at ¶ 30; Doc. 98, p. 3 at ¶ 30). The medical furlough clerk

eventually followed-up on the missing paperwork. By the time a second copy was

received, it was outside the recommended two-week window, and Corley was scheduled

for the next available appointment with Dr. Miller.

Corley was examined by Dr. Miller on April 22, 2015. Dr. Miller noted that Corley’s

joint was very tight and that his pinky and middle fingers were both stiff. Corley reported

numbness and decreased sensation, but Dr. Miller wrote that it could have been caused

by drying of the skin. He expressed that the delay in the scheduling of his follow-up

appointment caused issues because Corley needed to be moving his finger earlier. Dr.

Miller noted that the fracture showed “really very little, if any, healing in that bone at this

point,” and that he felt “that we [don’t] have any option but to go ahead and proceed

with physical therapy or OT for this hand.” (Doc. 93-1, p. 37-38).

After the follow-up appointment with Dr. Miller, Dr. Trost submitted a request for

collegial review to refer Corley for a follow-up with Dr. Miller and for occupational

therapy, and Dr. Fuentes reviewed his chart on April 24 and renewed Corley’s

prescription for Motrin. On April 27, 2015, Dr. Ritz approved the request and referred

Corley for one off-site occupational therapy evaluation and for a follow-up appointment

with Dr. Miller. (Doc. 98-1, p. 102).

Corley was evaluated by a therapist on May 5, 2015, and he was instructed on a

home exercise program to improve range of motion in his fingers. Corley testified that

the physical therapist told him he needed physical therapy appointments two or three

times per week, in addition to his home plan, in order to regain full mobility. (Doc. 98-6,

p. 10). Corley also had an appointment with Dr. Miller on May 5, 2015. He told Dr. Miller

that he had continued, but less severe, pain and that his range of motion had improved

somewhat. Dr. Miller recommended that Corley continue with his range of motion

exercises and that he return for a follow-up appointment in two-to-three weeks.

Dr. Trost evaluated Corley’s recovery during an appointment on June 2, 2015.

Corley reported no complaints during the visit, and Dr. Trost submitted a request for

collegial review to refer Corley for his follow-up visit with Dr. Miller. Corley saw

Dr. Miller on June 4, 2015. He told Dr. Corley that he had no complaints and that he was

feeling better, with improved range of motion and decreased pain. Dr. Miller found that

Corley’s fracture was healing and improved. He recommended that Corley return in four

weeks for x-rays to ensure that the fracture had healed completely.

Dr. Trost submitted a request for collegial review to refer Corley for the follow-up

appointment with Miller. Dr. Trost and Dr. Ritz discussed the request on June 12, 2015.

Dr. Ritz did not approve the request because the x-ray could be performed at Menard.

Dr. Ritz instead recommended an alternative treatment plan, which recommended on-

site x-rays after which Dr. Trost could re-present the request for a referral to Dr. Miller.

On July 9, 2015, Dr. Trost evaluated Corley and ordered an x-ray, following Dr.

Ritz’s alternative plan. Corley was scheduled for an x-ray on July 10, 2015, but it was

canceled due to a lockdown at Menard. The x-ray was scheduled for July 17, 2015, but it

had to be canceled again due to another lockdown. The x-ray was completed on July 21,

2015, and it showed an essentially completely healed fracture. Dr. Trost resubmitted the

request to refer Corley for a follow-up appointment with Dr. Miller. Dr. Ritz denied the

request because the x-ray showed an essentially completely healed fracture. Dr. Ritz

instead recommended an alternative treatment plan that included continued on-site

monitoring.

The next x-ray, which was performed at Menard on September 1, 2015, showed

that Corley’s right ring-finger fracture was healed. Corley, however, testified that he has

continued pain, which precludes him from seeking certain jobs at Menard, like janitorial

work, because he cannot do heavy lifting. He also explained that he cannot lift weights

like he used to because he has grip issues, and he cannot write long letters without

experiencing excessive throbbing. (Doc. 98-6, p. 15).

LEGAL STANDARDS

I. Summary Judgment Standard

Federal Rule of Civil Procedure 56 governs motions for summary judgment.

Summary judgment is appropriate if the movant shows that there is no genuine dispute

as to any material fact and that the movant is entitled to judgment as a matter of law.

Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014), citing FED. R. CIV. P.

56(a). Accord Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). A genuine issue of

material fact remains “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord

Bunn v. Khoury Enterpr., Inc., 753 F.3d 676, 681-82 (7th Cir. 2014).

In assessing a summary judgment motion, the district court views the facts in the

light most favorable to, and draws all reasonable inferences in favor of, the nonmoving

party. Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012); Delapaz v. Richardson, 634

F.3d 895, 899 (7th Cir. 2011). As the Seventh Circuit has explained, as required by Rule

56(a), “we set forth the facts by examining the evidence in the light reasonably most

favorable to the non-moving party, giving [him] the benefit of reasonable, favorable

inferences and resolving conflicts in the evidence in [his] favor.” Spaine v. Community

Contacts, Inc., 756 F.3d 542 (7th Cir. 2014).

II. Eight Amendment Deliberate Indifference

The Eighth Amendment prohibits cruel and unusual punishment, and the

deliberate indifference to the “serious medical needs of a prisoner constitutes the

unnecessary and wanton infliction of pain forbidden by the Constitution.” Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009). A prisoner is entitled to

“reasonable measures to meet a substantial risk of serious harm”—not to demand specific

care. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). A prisoner’s dissatisfaction with a

medical professional’s prescribed course of treatment does not give rise to a successful

deliberate indifference claim unless the treatment is so “blatantly inappropriate a to

evidence intentional mistreatment likely to seriously aggravate the prisoner’s condition.”

Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996)(quoting Thomas v. Pate, 493 F.2d 151, 158

(7th Cir. 1974)).

In order to prevail on a claim of deliberate indifference, a prisoner who brings an

Eighth Amendment challenge of constitutionally-deficient medical care must satisfy a

two-part test. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (citing Johnson v. Snyder,

444 F.3d 579, 584 (7th Cir. 2006)). The first consideration is whether the prisoner has an

“objectively serious medical condition.” Arnett, 658 F.3d at 750. Accord Greeno, 414 F.3d at

653. “A medical condition is objectively serious if a physician has diagnosed it as

requiring treatment, or the need for treatment would be obvious to a layperson.”

Hammond v. Rector, 123 F. Supp. 3d 1076, 1084 (S.D. Ill. 2015) (citing Pyles v. Fahim, 771

F.3d 403, 409 (7th Cir.2014)). It is not necessary for such a medical condition to “be life-

threatening to be serious; rather, it could be a condition that would result in further

significant injury or unnecessary and wanton infliction of pain if not treated.” Gayton v.

McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Accord Farmer v. Brennan, 511 U.S. 825, 828 (1994)

(violating the Eighth Amendment requires “deliberate indifference to a substantial risk of

serious harm”) ((internal quotation marks omitted) (emphasis added).

Prevailing on the subjective prong requires a prisoner to show that a prison official

has subjective knowledge of—and then disregards—an excessive risk to inmate health.

Id. at 653. The plaintiff need not show the individual “literally ignored” his complaint,

but that the individual was aware of the condition and either knowingly or recklessly

disregarded it. Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008). “Something more than

negligence or even malpractice is required” to prove deliberate indifference. Pyles v.

Fahim, 771 F.3d 403, 409 (7th Cir. 2014); see also Hammond v. Rector, 123 F. Supp. 3d 1076,

1086 (S.D. Ill. 2015) (“isolated occurrences of deficient medical treatment are generally

insufficient to establish . . . deliberate indifference”). Deliberate indifference involves

“intentional or reckless conduct, not mere negligence.” Berry v. Peterman, 604 F.3d 435,

440 (7th Cir. 2010)(citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).

Assessing the subjective prong is more difficult in cases alleging inadequate care

as opposed to a lack of care. Without more, a “mistake in professional judgment cannot

be deliberate indifference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th

Cir. 2016). The Seventh Circuit has explained:

By definition a treatment decision that’s based on professional judgment

cannot evince deliberate indifference because professional judgment

implies a choice of what the defendant believed to be the best course of

treatment. A doctor who claims to have exercised professional judgment is

effectively asserting that he lacked a sufficiently culpable mental state, and

if no reasonable jury could discredit that claim, the doctor is entitled to

summary judgment.

Id. (citing Zaya v. Sood, 836 F.3d 800, 805-06 (7th Cir. 2016)). This is in contrast to a case

“where evidence exists that the defendant [ ] knew better than to make the medical

decision[ ] that [he] did,” Id. (quoting Petties v. Carter, 836 F.3d 722, 731 (7th Cir.

2016))(alterations in original). A medical professional’s choice of an easier, less efficacious

treatment can rise to the level of violating the Eighth Amendment, however, where the

treatment is known to be ineffective but is chosen anyway. Berry v. Peterman, 604 F.3d

435, 441 (7th Cir. 2010).

ANALYSIS

I. Count 5: Deliberate Indifference claim against Defendant Wexford Health

Sources, Inc.

Typically, the doctrine of respondeat superior does not apply in Section 1983 cases.

Shields v. Illinois Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014) (citing Iskander v. Village of

Forest Park, 690 F.2d 126, 128 (7th Cir. 1982)). In Monell v. Dep’t of Social Services of the City

of New York, however, the Supreme Court held that a municipality may be liable under

Section 1983 for constitutional violations resulting from a policy or custom of the

municipality. 436 U.S. 658, 690–91 (1978). The Seventh Circuit has extended Monell

beyond municipalities to include private corporations providing government services,

such as Wexford. See Shields, 746 F.3d at 789. Absent a deprivation of a constitutional

right, a claim under Monell cannot succeed. Rice v. Correctional Medical Services, 675 F.3d

650, 675 (7th Cir. 2012).

Liability under Monell may be established in three ways. First, a plaintiff may

establish that the unconstitutional action “‘implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that body’s

officers.’” Glisson v. Indiana Dep’t of Corr., 849 F.3d 372, 379 (7th Cir. 2017)(quoting Los

Angeles County v. Humphries, 562 U.S. 29, 35 (2010)). Second, the plaintiff might prove that

a custom was created by “‘those whose edicts or acts may fairly be said to represent

official policy.’” Glisson, 849 F.3d at 379 (quoting Monell, 436 U.S. at 690–91).

The final way a plaintiff may demonstrate liability pursuant to Monell is by

establishing a widespread custom. Glisson, 849 F.3d at 379. Liability may extend to

customs “so permanent and well settled as to constitute a custom or usage with the force

of law” even though they received no formal approval. Monell, 436 U.S. at 91 (quoting

Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68 (1970)). A widespread custom may be

established by evidence of policymaking officials’ knowledge and acquiescence to the

unconstitutional practice. McNabola v. Chicago Transit Authority, 10 F.3d 501, 511 (7th Cir.

1993). Sufficient evidence may include proof that the practice was so “long standing or

widespread” that it would “support the inference that policymaking officials ‘must have

known about it but failed to stop it.’” Id. (quoting Brown v. City of Fort Lauderdale, 923 F.2d

1474, 1481 (11th Cir. 1991)).

The “critical question under Monell … is whether a municipal (or corporate) policy

or custom gave rise to the harm (that is, caused it) or if instead the harm resulted from

the acts of the entity’s agents.” Glisson, 849 F.3d at 379 (internal citation omitted). Corley

does not point to a policy statement, regulation, or decision that has been officially

adopted and promulgated by officials at Wexford that caused a delay or other issues in

his treatment. Similarly, he does not describe a specific policy, practice, or custom by

Wexford that is constitutionally suspect. While it is unclear which conduct by Wexford

during his course of treatment he alleges constitutes a harmful custom or practice, Corley

appears to argue that Defendants Fuentes, Trost, and Ritz had final policymaking

authority and created an unspecified custom through their edicts and acts that led to

deliberate indifference on the part of Wexford.

The Seventh Circuit differentiates between a final decision-maker and a final

policymaker when it comes to actions by a doctor during a prisoner’s medical care. See

Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 664 (7th Cir. 2016). A doctor who has

the final say on a prisoner’s treatment plan is a final decision-maker with respect to his

care, but that is insufficient to show that he was a final policymaker. Id. Having discretion

for some decisions does not make an individual “responsible for establishing final …

policy on a particular issue.” Valentino v. Vill. S. Chi. Heights, 575 F.3d 664, 675 (7th Cir.

2009).

Corley does not provide sufficient evidence that Defendants Fuentes, Trost, and

Ritz had final policymaking authority for Wexford. Defendants Fuentes and Trost, in

particular, did not have final decision-making authority, as their requests for outside

referrals had to be submitted for review. Defendant Ritz had greater decision-making

authority with respect to Corley’s care, but Corley does not provide sufficient evidence

or a developed argument to establish that Dr. Ritz was a person whose edicts and acts

constituted official Wexford policy. Given the lack of argument and evidence to establish

that a policy, practice, or custom of Wexford’s caused Corley harm, Defendant Wexford

Health Sources, Inc. is entitled to summary judgment on Count 5.

II. Count 10: Deliberate Indifference claims against Defendants Fe Fuentes

and John Trost

There is insufficient evidence to allow a reasonable juror to conclude that

Defendant Fuentes was deliberately indifferent to Corley’s hand injury and his related

pain. There is no evidence that she knowingly or recklessly disregarded his injury. Dr.

Fuentes saw Corley and evaluated his injury on March 4 and 5, 2015, before his evaluation

by Dr. Miller. Between March 5 and Corley’s surgery on March 9, 2015, he saw other

members of the healthcare unit staff and reported that the Motrin was helping with his

pain. While he testified that he told members of the healthcare unit that he wanted

something stronger that Motrin for his pain, there is no evidence of that in his medical

records, nor did he express that to a physician. (See Doc. 98-6, p. 16-17).

Dr. Fuentes saw Corley on March 10, 2015, the morning after his surgery, and,

recognizing that he was in greater pain following surgery, she prescribed a stronger pain

medication for two days. When she saw him the next day, he reported no complaints.

While he reported having occasional right-hand pain on March 12, Dr. Fuentes

determined that Corley’s Motrin prescription should be renewed on March 13, 2015. By

the time she saw him again on March 18, Corley again reported no complaints.

There is no evidence in the record that Corley’s alleged request for stronger pain

medication, if made, reached Dr. Fuentes and that she knowingly or recklessly

disregarded his medical needs. While Corley characterized his pain as excruciating when

he described it during his deposition, there is insufficient evidence that he told Defendant

Fuentes he was in excruciating pain and that, knowing of his pain, she declined to

provide reasonable treatment. As such, she is entitled to summary judgment.

Corley argues that Dr. Trost also was deliberately indifferent to his pain post-

surgery, pointing to a medication reconciliation form that shows that a Norco

prescription was destroyed “per RN request.” (Doc. 98-1, p. 95-96). The form suggests

that Dr. Miller prescribed Norco, but a nurse at Menard directed that the prescription be

destroyed, as Corley would “only” receive Motrin. It is unclear whether that decision was

made at Dr. Trost’s direction, and Corley also points to a statement by Dr. Fuentes that

she would have prescribed a narcotic and not Motrin after his hand surgery as evidence

of Dr. Trost’s deliberate indifference to Corley’s pain.

Dr. Trost described his more conservative approach of trying non-narcotic pain

medications first, which is not the approach that Dr. Miller or Dr. Fuentes may have

chosen. The Seventh Circuit, however, has held that “evidence that another doctor would

have followed a different course of treatment is insufficient to sustain a deliberate

indifference claim.” Burton v. Downey, 805 F.3d 776, 787 (7th Cir. 2015). To infer deliberate

indifference on the basis of a physician’s treatment decision, the decision must be “such

a substantial departure from accepted professional judgment, practice, or standards, as

to demonstrate that the person responsible actually did not base the decision on such a

judgment.” Id. (quoting Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008)).

In Burton, the Seventh Circuit found that the medical staff treating a pretrial

detainee was not deliberately indifferent when they ignored the detainee’s preference for

a narcotic pain medication, even when he displayed withdrawal symptoms and suffered

extreme post-surgical pain. Id. Preference of one pain medication over another does not

give rise to a deliberate indifference claim, as prisoners “are not entitled to receive

‘unqualified access to healthcare.’” Id. (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)).

With no evidence to allow a reasonable juror to discredit Dr. Trost’s claim that he was

taking a conservative approach to pain management, rather than intentionally or

recklessly disregarding Corley’s post-surgery pain, he is entitled to summary judgment.

III. Count 12: Deliberate Indifference claim against Defendant Stephen Ritz

The parties’ disputes as to Count 12 focus on two issues: Corley’s post-surgery

occupational therapy and Dr. Ritz’s denial of the final two requests to refer Corley for a

follow-up appointment with Dr. Miller. As to Corley’s physical therapy, Dr. Ritz

approved a single outpatient appointment along with a home exercise plan. Corley

claims that he was told during his physical therapy appointment that he needed regular

outpatient appointments in addition to his home exercise plan.

Dr. Ritz, however, testified patients requiring physical therapy are sent out for an

evaluation and for a home health exercise program because it is not feasible to send

inmates for multiple off-site physical or occupational therapy sessions due to security,

transportation, and public safety concerns. He pointed to on-site medical staff as being

available to monitor and support patients with home exercise programs. (Doc. 93-4,

p. 13). Similarly, the decision not to send Corley back for follow-up appointments with

Dr. Miller after his fracture was close to being healed was based on the availability of in-

house medical staff to perform and review the needed x-ray. Corley maintains that he

has ongoing pain and soreness in his finger and that he cannot write for long periods of

time without pain due, in part, to these decisions.

Refusals to refer an inmate for medical care can create a question of material fact

as to whether a doctor was deliberately indifferent. See, e.g., Green v. Daley, 414 F.3d 645,

655 (7th Cir. 2005) (finding that a reasonable juror could conclude that a doctor who

refused to refer an inmate to a specialist over a two-year period was deliberately

indifferent). While prisoners are entitled only to adequate care, a reasonable juror could

conclude that Corley did not receive adequate care given his ongoing symptoms and the

complications that Dr. Miller indicated were caused by the delay in his follow-up

appointment in April 2015. There is a question of fact as to whether Dr. Ritz’s

determinations were made for reasons other than his professional judgment as to the

appropriate treatment. If he chose a less efficacious court of treatment, such as a home

exercise program when outpatient therapy was needed in light of Corley’s delayed

healing, and Corley suffered pain as a result, then the Eighth Amendment could be

triggered. See Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). As such, Defendant Ritz is

not entitled to summary judgment.

CONCLUSION

For these reasons, the Court GRANTS in part and DENIES in part Defendants’

motion for summary judgment (Doc. 92). At the close of the case, the Clerk of Court shall

enter judgment in favor of Defendant Wexford Health Sources, Inc., Defendant Fe

Fuentes, and Defendant John Trost and against Plaintiff Keon Corley.

Count 12 against Defendant Stephen Ritz remains pending. Judge Sison is

DIRECTED to set this case for a settlement conference.

IT IS SO ORDERED.

DATED: September 24, 2019

wf oust!

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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