# Bogan v. Wexford Health Sources

> District Court, S.D. Illinois · September 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10155515

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** September 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANTONIO M. BOGAN,
Plaintiff,
v. Case No. 3:19-CV-00590-NJR
WEXFORD HEALTH SOURCES, INC.,
VIPIN SHAH, SARA STOVER, and

LYNN PITTMAN,
Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:
Pending before the Court is a Motion for Summary Judgment filed by Defendants
Dr. Lynn Pittman, Dr. Vipin Shah, Sara Stover, and Wexford Health Sources, Inc.
(“Wexford”) (Doc. 117). Plaintiff Antonio Bogan filed a timely response to the motion
(Doc. 136) to which Defendants filed a timely reply (Docs. 138, 139, 140). For the reasons
set forth below, the motion is granted in part and denied in part.
INTRODUCTION
On June 4, 2019, Plaintiff Antonio Bogan, a prisoner in custody of the Illinois
Department of Corrections (“IDOC”), filed this action pro se pursuant to 42 U.S.C. § 1983
alleging his constitutional rights were violated while incarcerated at Lawrence
Correctional Center (“Lawrence”) (Doc. 1). When he filed the Complaint, Bogan resided
at Lawrence (Id.), but he is currently incarcerated at Shawnee Correctional Center
(“Shawnee”)1. Bogan has since filed two amended complaints (Docs. 19, 48). He proceeds
on two counts for deliberate indifference in treating his throat cyst and associated pain

against Dr. Shah, Dr. Pittman, Stover, and Wexford in violation of the Eighth Amendment
(Doc. 48). He also proceeds on one count under Illinois state law for intentional infliction
of emotional distress against all defendants (Id.).
At the time of the underlying events, Dr. Shah, a licensed physician, worked at
Robinson Correctional Center as the Medical Director and occasionally rendered medical
care to prisoners at Lawrence (Doc. 118-2). Dr. Pittman, a licensed physician, held the

position of Medical Director at Lawrence from February 2019 to July 2020 (Doc. 118-3).
Sara Stover worked as a Nurse Practitioner (“NP”) at Lawrence from December 2018 to
December 2019 (Doc. 118-4). Wexford, a corporation in contract with IDOC, provides
medical services to several prisons including Lawrence (Doc. 118-5).
Defendants argue that Bogan cannot set forth any evidence of deliberate

indifference to a serious medical need or intentional infliction of emotional distress, and
as such, urge the Court to grant summary judgment in their favor (Docs. 117, 118).
Alternatively, Bogan argues that many genuine issues of material fact exist and, thus,
summary judgment is improper (Doc. 136).
FACTUAL BACKGROUND

The medical care relevant to this action spans over the course of a year from
December 2018 to December 2019. During a level one lockdown at Lawrence, in mid-

1 See https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (last visited Sept. 21, 2022).
December 2018, Bogan noticed a sudden swelling in his throat (Docs. 48; 118-1, p. 30). His
throat appeared three times its normal size and caused extreme pain (Id.). Concerned

with this rapid swelling, Bogan drafted several request slips to the healthcare unit and
placed them in his door because he had no access to the medical box during lockdown
(Id.). After lockdown ended, Bogan saw Dr. Shah on December 18 (Docs. 118-2, ¶ 5; 118-
6, p. 28). Bogan reported pain and swelling in his throat along with trouble drinking water
and eating (Id.). Dr. Shah examined Bogan’s neck and observed swelling in his thyroid,
which caused him to order blood work, request an urgent ultrasound of the neck, inject

an antibiotic to treat any infection, prescribe antibiotics and ibuprofen, and order another
check-up in a few days (Docs. 118-1, pp. 32-35; 118-2, ¶ 5; 118-6, pp. 28, 274, 284). In
collegial review, Wexford’s approval process for certain specialty procedures, the
ultrasound request was initially denied, and the reviewing physician reasoned that the
procedure could wait pending Bogan’s response to antibiotic treatment (Doc. 118-6,

p. 234).
After his initial appointment, Bogan met with NP Stover three times during the
remainder of December. In their first visit, on December 24, Stover examined his thyroid
abscess as ordered by Dr. Shah (Docs. 118-4, ¶ 5; 118-6, p. 30). The medical record for that
visit, along with Bogan’s testimony, indicates that Bogan reported pain and swelling but

noticed that each symptom had slightly lessened (Docs. 118-1, p. 36; 118-4, ¶ 5; 118-6,
p. 30). Stover ordered a prompt follow-up visit and a continuation of his current
medications (Docs. 118-4, ¶ 5; 118-6, p. 30). In the next visit two days later, Bogan’s blood
work results signaled potential infection (Docs. 118-4, ¶ 6; 118-6, p. 32). Stover
documented the cyst’s reduced size and Bogan’s report of lessening pain (Id.; Doc. 136,
p. 34). Stover ordered another two-day follow-up and continuation of the current

medication (Id.). In their next check-up, Stover recorded that the cyst continued to
decrease in size (Docs. 118-4, ¶ 7; 118-6, p. 33). The medical records also indicate that
Bogan reported some pain but denied trouble swallowing (Id.). In his declaration, Bogan
stated that, while he only experienced slight pain at the appointment, he experienced
instances of excruciating pain as well (Doc. 136, p. 34). Stover prescribed another
antibiotic and ordered another follow-up appointment (Id.).

Like the previous month, Bogan met with Stover three times in the beginning of
January. On January 2, Stover evaluated Bogan’s vitals and observed no change in the
cyst (Docs. 118-4, ¶ 8; 118-6, p. 34). She documented that Bogan described the abscess as
“starting to hurt,” in addition to causing headaches and trouble swallowing (Id.; Doc. 136,
p. 34). As a result, Stover submitted another collegial referral for an ultrasound and

prescribed more antibiotics (Docs. 118-4, ¶ 8; 118-6, p. 34). Two days later, in Bogan’s next
follow-up appointment, Stover noted that Bogan complained of trouble swallowing and
some soreness, but the discomfort seemed to improve (Docs. 118-4, ¶ 9; 118-6, p. 35). At
this time, the cyst continued to shrink (Id.). As a result, Stover continued the current
treatment plan and medications (Id.). In his declaration, Bogan stated that during this

appointment he told Stover he experienced constant pain and asked for a stronger pain
medication which she refused to prescribe (Doc. 136, p. 34). Three days later on January
7, they met again (Doc. 118-6, p. 36). Stover recorded that the cyst continued to shrink but
still caused some soreness (Docs. 118-4, ¶ 10; 118-6, p. 36).
An ultrasound of Bogan’s throat taken on January 10, which was approved in
collegial review after Stover’s renewed request, revealed that Bogan likely had a

thyroglossal duct cyst (Doc. 118-6, p. 288). In light of this diagnosis, the radiologist
recommended further evaluation including cross-sectional imaging (Id.). Bogan next met
with Dr. Shah on January 21, however, the healthcare unit had not received the
ultrasound results, so they scheduled another follow-up visit (Docs. 118-2, ¶ 8; 118-6,
p. 42). Two days later, Dr. Shah reviewed the ultrasound results with Bogan and
submitted a collegial referral for evaluation with an outside Ear, Nose, and Throat

(“ENT”) specialist (Docs. 118-2, ¶ 8; 118-6, pp. 42, 238). Approval for the ENT consultation
came the next day (Docs. 118-2, ¶ 9; 118-6, pp. 42, 238-239). On January 28, Dr. Shah noted
the ENT specialist approval in Bogan’s chart (Docs. 118-2, ¶ 9; 118-6, p. 43). This marked
the end of Dr. Shah’s involvement in treating Bogan (Id.). Based on the approval, a
consultation was scheduled with an ENT specialist on February 11 (Doc. 118-6, pp. 239-

240). In his declaration, Bogan detailed that during this time, he sent four medical
requests complaining of extreme pain that ultimately went unanswered and submitted
an emergency grievance (Docs. 48, pp. 28-30; 136, p. 35).
As scheduled, Bogan met with an offsite ENT specialist, Dr. Nguyen (Doc. 118-6,
pp. 240, 242). Dr. Nguyen found a thyroglossal duct cyst in Bogan’s throat and

recommended that Bogan receive neck scans and follow-up within two weeks of the scan
results (Id. at p. 242). Four days after the ENT visit, Bogan visited Dr. Pittman for the first
time regarding his cyst (Docs. 118-3, ¶ 5; 118-6, p. 45). Dr. Pittman noticed that Bogan’s
tonsils felt enlarged and suspected sinusitis or tonsilitis as a potential cause (Id.). Heeding
the recommendation of Dr. Nguyen, Dr. Pittman submitted a collegial referral for the
MRI of Bogan’s neck the same day (Id.; Doc. 118-6, p. 241). Dr. Pittman also recommended

changes to Bogan’s diet with increased water intake (Doc. 118-6, p. 45). Bogan told Dr.
Pittman about his throat pain for the past couple months and that he responded well to
antibiotic treatments in the past (Id.).
Approval for the MRI came through within two weeks (Doc. 118-6, pp. 243-244).
Around this time, Dr. Pittman documented growth in Bogan’s cyst and made a note to
schedule the MRI (Docs. 118-3, ¶ 7; 118-6, p. 46). Bogan’s offsite MRI was scheduled for

April 2 (Doc. 118-6, pp. 46, 47). In the meantime, Bogan submitted a second emergency
grievance because his medical requests went unanswered and he suffered excruciating
pain (Doc. 136, pp. 36, 41-43). As a result, Bogan received an appointment with Stover,
who informed him of his upcoming MRI (Docs. 118-4, ¶ 12; 118-6, p. 47; 136, p. 36). During
this visit, Stover documented that Bogan reported some discomfort when eating but

denied any current pain (Docs. 118-4 ¶ 12; 118-6, p. 47). Stover instructed Bogan to follow-
up as needed with the healthcare unit (Id.).
Less than two weeks later, Bogan’s MRI was performed as scheduled at Lawrence
County Memorial Hospital (Doc. 118-6, pp. 244-245, 289-290). Three days later, Bogan
reported to Dr. Pittman that his sleep and nausea improved, with no nighttime coughing

(Docs. 118-3, ¶ 9; 118-6, p. 52). Upon examination, the cyst appeared smaller (Id.). Aside
from urging Bogan to continue with his dietary changes and increased hydration for his
sinusitis, Dr. Pittman noted that she would request collegial referral for a follow-up
appointment with the ENT specialist when the healthcare unit received the MRI results
Bogan’s declaration reflects that he told Dr. Pittman about his ongoing stress and
anxiety that the cyst was cancerous during this visit (Doc. 136, p. 37).
From here, a substantial amount of time passed until the Lawrence healthcare unit
received the MRI results—four months (Doc. 118-6, pp. 289-290). While the completion
and transcription of the radiology report occurred on April 3, the day after Bogan’s scan,
the report was faxed to Lawrence on August 5 (Id.).
During this long waiting period, Bogan contends that he submitted several
medical request slips for his extreme pain to which he received no response (Doc. 136,
pp. 37-38). Bogan went to the healthcare unit in May to retrieve his medical records (Id.).
While in the healthcare unit, he brought his condition to the attention of the nurses, but
they instructed him to submit another medical request (Id.). He claims to have done so
many more times over the summer to no avail (Id.). As such, he filed a third emergency
grievance and initiated this lawsuit ([d.; Docs. 1; 48, pp. 36-37). In August, shortly before
obtaining the MRI results, Bogan also reported to the healthcare unit for a standard TB
test, shot, and follow-up (Docs. 118-1, p. 139; 118-6, p. 55).
Finally, on August 5, Lawrence received Bogan’s MRI results (Doc. 118-6, pp. 289-
290). Four days later, Stover met with Bogan to discuss the results (Doc. 118-6, p. 57). The
medical notes from the visit reflect that Bogan complained of soreness in his neck and
occasional difficulty eating (/d.). Bogan avers that he told Stover of ongoing excruciating
pain, difficulty swallowing, breathing, and sleeping (Doc. 136, p. 39). He also told Stover
that he suffered stress and anxiety as he feared the cyst could be cancerous and lead to
his death (Id.). Stover referred Bogan to Dr. Pittman (Doc. 118-6, p. 57). On August 14,
Page 7 of 24

Dr. Pittman examined Bogan’s cyst and noted that the cyst had slightly improved over
time (Docs. 118-3, ¶ 10; 118-6, p. 58). The notes from the visit, however, showed the cyst

measuring at six centimeters in size, indicating recent growth (Doc. 118-6, p. 58). Now
equipped with the MRI results, Dr. Pittman submitted a collegial referral for an urgent
ENT appointment and possible surgery (Docs. 118-3, ¶ 10; 118-6, pp. 58, 246-249). ENT
follow-up was approved a week later, and an appointment with Dr. Nguyen was slated
for October 15 (Doc. 118-6, pp. 58, 248). At the eventual appointment, Dr. Nguyen
recommended surgical removal of Bogan’s cyst (Id. at p. 249). A week after the ENT

specialist visit, Bogan met with Dr. Pittman again (Docs. 118-3, ¶ 13; 118-6, p. 68).
Adhering to the specialist’s recommendation, Dr. Pittman submitted a collegial referral
for the surgery (Id.; Doc. 118-6, p. 250). The surgery was approved and scheduled for
November 14 (Docs. 118-3, ¶ 13; 118-6, pp. 68, 265-267).
Bogan underwent surgery as scheduled (Doc. 118-6, pp. 251-263, 267). The cyst

was removed, and a drain was inserted at the suture site to empty excess fluid (Id.). Upon
his return to Lawrence, Bogan stayed in the infirmary for monitoring (Docs. 118-3, ¶ 14;
118-6, pp. 73-82). While there, Dr. Pittman prescribed pain medication and antibiotics for
Bogan and submitted a collegial referral for a post-surgical appointment with Dr. Nguyen
(Docs. 118-3, ¶ 15-17; 118-6, pp. 73-81). Bogan’s drain and sutures were removed a week

after surgery (Doc. 118-6, pp. 264-265). After discharge from the infirmary, on December
10, Bogan did not report any further issues with his throat (Docs. 118-3, ¶ 18; 118-6, p. 230).
LEGAL STANDARD
I. Summary Judgment
Summary judgment is proper only if the moving party can demonstrate that there

is no genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also
Ruffin Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005).
The moving party bears the burden of establishing that no material facts are in genuine
dispute; any doubt as to the existence of a genuine issue must be resolved against the

moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); see also Lawrence v.
Kenosha Cty., 391 F.3d 837, 841 (7th Cir. 2004).
Once the moving party sets forth the basis for summary judgment, the burden then
shifts to the nonmoving party who must go beyond mere allegations and offer specific
facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P. 56(e); see Celotex

Corp., 477 U.S. at 322-24. A moving party is entitled to judgment as a matter of law where
the nonmoving party “has failed to make a sufficient showing on an essential element of
her case with respect to which she has the burden of proof.” Celotex Corp., 477 U.S. at 323.
The party opposing summary judgment must offer admissible evidence in support of his
version of events; hearsay evidence does not create a genuine issue of material fact.

Durling v. Menard, Inc., No. 18 C 4052, 2020 WL 996520, at *2 (N.D. Ill. Mar. 2, 2020) (citing
McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 484 (7th Cir. 1996)). In determining whether
a genuine issue of fact exists, the Court must view the evidence and draw all reasonable
inferences in favor of the nonmovant. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th
Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However,
“[i]nferences that rely upon speculation or conjecture are insufficient.” Armato v. Grounds,

766 F.3d 713, 719 (7th Cir. 2014). “Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”
Id. (citation omitted).
ANALYSIS
I. Eighth Amendment Deliberate Indifference to Medical Needs
The Supreme Court has recognized that “deliberate indifference to serious medical

needs of prisoners” may constitute cruel and unusual punishment under the Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). 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 as to evidence
intentional mistreatment likely to seriously aggravate the prisoner’s condition. Machicote
v. Roethlisberger, 969 F.3d 822, 828 (7th Cir. 2020) (quoting Pyles v. Fahim, 771 F.3d 403, 409
(7th Cir. 2014)). “[T]he Eighth Amendment does not reach disputes concerning the
exercise of a professional’s medical judgment, such as disagreement over whether one

course of treatment is preferable to another.” Cesal v. Moats, 851 F.3d 714, 721 (7th Cir. 2017).
To succeed on a claim of deliberate indifference, a plaintiff must show: (1) that he
suffered from an objectively serious medical condition; and (2) that the individual
defendant was deliberately indifferent to that condition. Berry v. Peterman, 604 F.3d 435,
440 (7th Cir. 2010); Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (citing Johnson v.
Snyder, 444 F.3d 579, 584 (7th Cir. 2006)).

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.” Lockett
v. Bonson, 937 F.3d 1016, 1023 (7th Cir. 2019) (quoting Pyles, 771 F.3d at 409) (internal
quotation marks omitted).
Prevailing on the second prong requires a prisoner to show that a prison official
has subjective knowledge of—and then disregards—an excessive risk to prisoner health.

Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). A 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, 771 F.3d at 409; 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, 604 F.3d at 440
(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). 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, 604 F.3d at 441. A delay in treating a non-life-threatening but painful
condition may constitute deliberate indifference if the delay exacerbated the injury or
unnecessarily prolonged the prisoner’s pain. Arnett, 658 F.3d at 753 (citing McGowan v.
Hulick, 612 F.3d 636, 640 (7th Cir. 2010)).
As an initial matter, Defendants concede that Bogan’s thyroglossal duct cyst and
associated symptoms qualify as a serious medical condition, thus, the objective prong is
satisfied.
Turning to the subjective prong, according to Defendants, each medical provider
acted within his or her professional judgment to provide appropriate treatment and care
for Bogan. On the other hand, Bogan argues that Defendants refused to provide him pain
medication which unnecessarily prolonged his pain and that they delayed his treatment
by failing to promptly follow the recommendations of his ENT specialist. To satisfy this
element, Bogan must show that each individual defendant had subjective knowledge
—and then disregarded —an excessive risk to his health. The Court will evaluate each
defendant separately to determine whether a genuine issue of material fact exists as to
their sufficiently culpable states of mind.
a. Dr. Shah
Dr. Shah contributed to Bogan’s treatment on three occasions—two patient visits
and one chart note. In the first visit, Dr. Shah assessed Bogan’s neck, prescribed
Page 12 of 24

antibiotics and ibuprofen, ordered blood work, and put in an urgent request for an
ultrasound. He also instructed Bogan to follow up within a few days in an effort to

continually monitor his condition. During their second appointment, a little over a month
later, Dr. Shah reviewed Bogan’s ultrasound results and submitted a collegial referral
request for an outside consultation with an ENT specialist. Lastly, Dr. Shah recorded the
ENT specialist consultation approval in Bogan’s chart so that he could be scheduled for
the offsite appointment.
Bogan argues that Dr. Shah unreasonably delayed his treatment and failed to treat

his ongoing pain. Bogan is correct that a delay in medical treatment may constitute
deliberate indifference if the delay exacerbates the injury or unnecessarily prolongs pain.
Arnett, 658 F.3d at 753. The record shows that Dr. Shah prescribed pain medication to
Bogan after the first appointment along with antibiotics. Thus, Dr. Shah provided
treatment for Bogan’s pain. Further, Dr. Shah did not act in a way that delayed Bogan’s

care. In fact, the record shows the opposite. At each appointment, Dr. Shah progressed
Bogan’s treatment through ordering bloodwork and submitting collegial referrals for an
ultrasound and an ENT specialist consultation. Collegial review denied the initial
ultrasound request—to first monitor antibiotic response—but Dr. Shah had no control
over that process. Further, Dr. Shah only saw Bogan twice over the course of a month,

and within that time, Bogan received an ultrasound and a specialist referral. There does
not appear to be any unreasonable delay during Dr. Shah’s treatment, especially
considering that procedures like ultrasounds require scheduling based on availability
and time to deliver results.
Even if an unreasonable delay occurred over the course of this first month of
treatment, Bogan has not demonstrated that Dr. Shah contributed to the delay. Dr. Shah

put in collegial referrals for both the ultrasound and ENT specialist immediately after
each visit, and he had no control over the approval process or subsequent scheduling.
Besides, in the prison setting, some delays are commonplace due to limited resources.
Petties, 836 F.3d at 730.
No reasonable jury, on this record, could find that Dr. Shah demonstrated
deliberate indifference to Bogan’s serious medical need through ignoring his pain or

causing an unnecessary delay in treatment. As such, Dr. Shah is entitled to summary
judgment.
b. NP Stover
Bogan met with Stover much more frequently than Dr. Shah, especially in the
beginning of his treatment. From December 24 to January 7, Stover saw Bogan six times.

After this initial phase of treatment, Bogan visited Stover on two other occasions, once in
March and once in August.
As with the other defendants, Bogan argues Stover demonstrated deliberate
indifference in failing to prescribe pain medication and delaying his treatment. In their
first set of appointments, Stover monitored Bogan every two to three days and noted his

progress. Overall, the medical records indicate that Bogan showed improvement during
this time. Stover observed that swelling lessened with each visit or remained the same.
Further, the records are devoid of complaints of excruciating or even increasing pain. To
the contrary, the progress notes indicate that in the second appointment Bogan described
decreased pain levels. In the third visit, Bogan described the cyst as “a little painful” and
he “denie[d] trouble swallowing.” In the next appointment, Bogan reported the knot was

starting to hurt with some trouble swallowing and headaches. Days later, the medical
notes reflect that Bogan stated “the discomfort is getting better, but it’s still a little sore.”
Finally, in the last January visit, Bogan mentioned soreness and shrinking of the lump.
Even in his declaration, Bogan describes that in the first three appointments with Stover
he mentioned lessening swelling and pain. Regarding the next three appointments, he
claims he told Stover of ongoing pain and that the previously prescribed ibuprofen did

not help.
First, the medical records evidence that the swelling, the size of the lump, pain,
and trouble swallowing continued to decrease over the course of these visits. Based on
that information, Stover’s decision not to prescribe pain medication was reasonable. She
continued to prescribe antibiotics as the swelling and size of the lump appeared to

decrease with this treatment. Further, in order to establish deliberate indifference based
on medical judgment, Bogan must show that Stover’s treating decision fell “so far afield
of accepted professional standards as to raise the inference that it was not actually based
on medical judgment.” Arnett, 658 F.3d at 758-59. Considering the information contained
in the medical records, Bogan cannot demonstrate such a departure from acceptable

professional standards.
Even taking Bogan’s declaration as true, that Bogan complained of increasing pain
over the course of the latter three visits and asked for stronger pain medication, Stover’s
actions do not amount to deliberate indifference. Stover continued to prescribe
antibiotics, which appeared effective in decreasing swelling and the size of the cyst.
Treating the symptoms of swelling and size could also impact and decrease pain

especially related to swallowing. Focusing on this method of treatment, as opposed to
prescribing pain medicine, is not unreasonable and merely demonstrates that Stover and
Bogan disagreed about the proper course of treatment. Perhaps, at most, Stover
negligently failed to prescribe pain medication during these visits. Both fall short of the
demanding standard for deliberate indifference. See Snipes v. DeTella, 95 F.3d 586, 591 (7th
Cir. 1996) (mere disagreement with the course of a prisoner’s medical treatment does not

constitute an Eighth Amendment claim of deliberate indifference.); see also Whiting, 839
F.3d at 662 (“It’s clear that evidence of medical negligence is not enough to prove
deliberate indifference.”). Further, Stover ordered that the approved ultrasound be
scheduled as soon as possible, which advanced Bogan’s medical treatment and eventual
diagnosis.

Moving to their next interaction, Bogan met with Stover in March. Bogan filed a
grievance prior to this appointment discussing his ongoing pain. The medical records
indicate that during the appointment, however, Bogan reported some discomfort when
eating and “denie[d] any current pain.” At this time, Stover notified Bogan that he was
scheduled for an MRI in April. Bogan asserts that Stover denied his request for stronger

pain medication. Based on the report of pain reflected in the medical records, Stover did
not demonstrate deliberate indifference in declining to prescribe stronger pain
medication when Bogan denied any current pain. Moreover, even the ENT specialist, in
an appointment a month earlier, did not prescribe or recommend pain medication of any
kind in treating Bogan’s cyst.

During Bogan’s last appointment with Stover, in August, the progress notes
indicate that Bogan reported occasional soreness with difficulty eating and pressure
while lying down. At this point, Lawrence received the MRI results, and Stover referred
Bogan to Dr. Pittman for next steps. Again, with the limited reports of pain in the medical
records, a reasonable jury could not make an inference of deliberate indifference on behalf
of Stover for declining to prescribe pain medication.

Certainly, Bogan experienced a substantial delay in treatment having waited four
months after his MRI to receive his results and return to the ENT specialist. This delay
also seems to have exacerbated Bogan’s condition as his cyst grew over this time. But
there is no evidence that Stover knew of or contributed to the delay in obtaining Bogan’s
MRI results. Deliberate indifference requires a culpable state of mind. No such state of

mind can be inferred on behalf of Stover as to the delayed delivery of the MRI results.
Bogan also argues that the Defendants, including Stover, failed to heed the
instructions of the outside ENT specialist by failing to send him back to the specialist two
weeks after the MRI for surgery. But the ENT specialist ordered that Bogan be sent back
to the clinic for follow-up two weeks after receiving the CD-ROM results of the scan,

which Lawrence did not receive until August. Once the healthcare unit received the
results, Stover referred Bogan to Dr. Pittman so he could eventually return to the ENT
specialist. Stover did not ignore the specialist’s recommendation regarding post-MRI
follow-up.
The record reflects that, in the total course of treating Bogan, Stover responded to
his reported symptoms, monitored his condition closely, continued in effective antibiotic

treatment, and progressed his medical care through scheduling an ultrasound and
referring him to the appropriate physician for specialist referral. Moreover, while Bogan
suffered a significant delay in treatment from the time of the MRI to the scheduled follow-
up with the ENT specialist, there is no evidence to suggest that Stover contributed to or
knew of this delay. On this record, no reasonable jury could find that Stover acted with a
criminally reckless state of mind. See Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005).

Additionally, “[w]here the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no ‘genuine issue for trial.’” Armato, 766 F.3d at
719 (7th Cir. 2014). As such, Defendant Stover is entitled to summary judgment on
Bogan’s deliberate indifference claim.
c. Dr. Pittman

In February 2019, Dr. Pittman took over treatment of Bogan’s cyst. In their first
appointment, Dr. Pittman requested collegial review for Bogan to receive an MRI
pursuant to the ENT specialist’s recommendation. The medical records indicate that
Bogan complained of a persisting sore throat and nausea. Dr. Pittman recorded that
Bogan’s tonsils were swollen and that Bogan responded well to antibiotic treatment in

the past. Suspecting tonsilitis or sinusitis, Dr. Pittman prescribed a change in diet and
increased fluid intake. Dr. Pittman next saw Bogan three days after his MRI. During this
appointment, she documented that Bogan reported improvement in his nausea and
sleeping, with no nighttime coughing. The cyst also appeared to have decreased in size.
The progress notes show that Dr. Pittman intended to follow up once the healthcare unit
received the MRI results. In August, after receiving the MRI results, Dr. Pittman

submitted a collegial referral for an ENT follow-up and did the same after the specialist
recommended surgery. Finally, Dr. Pittman monitored Bogan post-surgery in the
Lawrence infirmary for a month. At this time, she prescribed pain medications and
antibiotics. She also submitted collegial referrals for a post-operation specialist
appointment.
Bogan argues that Dr. Pittman was deliberately indifferent to his pain. He

generally takes issue with Dr. Pittman’s holistic approach to medicine and the fact that
she purportedly delayed follow-up and surgery because she believed his body would
heal the cyst on its own. He argues that discussing diet and hydration in their initial
appointment circumvented the underlying problem and ignored his pain demonstrating
deliberate indifference.

Such an inference is not warranted here. It is clear that Dr. Pittman followed the
specialist’s advice in sending a collegial referral for MRI. Notably, the specialist did not
recommend any pain medication for Bogan’s symptoms. Further, Dr. Pittman sought to
treat Bogan’s potential tonsilitis or sinusitis, which could have been a source of pain,
through diet and hydration. The record does not suggest that this treatment is

inappropriate for either of those potential conditions. Also, as a new medical provider to
Bogan, it is not unreasonable for Dr. Pittman to attempt to provide recommendations as
to his overall health, including diet. At most, this demonstrates a difference of opinion
regarding treatment of Bogan’s condition, or an isolated incident of negligence in
declining to prescribe pain medication which both fall short of deliberate indifference.
Upon receiving the MRI results, Dr. Pittman also submitted collegial referrals for

specialist follow-ups and surgery, and she monitored his progress in the infirmary while
prescribing pain medication and antibiotics. The medical notes from their visits also do
not reflect that Bogan reported increasing pain levels. This treatment does not paint a
picture of Dr. Pittman’s deliberate indifference to the specialist’s recommendation or his
reported pain.
Bogan also argues that Dr. Pittman caused an unnecessary delay in his treatment.

Dr. Pittman saw Bogan three days after his MRI. During that appointment, Dr. Pittman
documented that the MRI results were currently unavailable and that she intended to
follow up once the healthcare unit received the MRI results. Then, four months passed.
This delay, according to Bogan, demonstrates deliberate indifference on behalf of
Dr. Pittman. Different from Stover, Dr. Pittman knew that Lawrence had not received the

MRI results days after the scan. Moreover, Dr. Pittman knew of the ENT specialist’s
recommendation to follow-up within two weeks of receiving the scan results. The Court
finds that there is a genuine issue of material fact as to why Dr. Pittman failed to inquire
about the scan results with the hospital or why she did not attempt to procure the results
over the following four months, which could create an inference of deliberate

indifference. Importantly, this delay appears to have exacerbated Bogan’s condition as
his cyst grew. According to Bogan’s testimony and grievances, he also suffered more pain
during this time. While the record is unclear as to whether Dr. Pittman knew of or
received Bogan’s grievances or medical requests during that time, she did know of his
condition, the specialist’s recommendations, and that the MRI results were not sent after
the scan. As discussed above, delay in medical treatment can create an inference of

deliberate indifference if the delay exacerbates the injury or unnecessarily prolongs pain.
Arnett, 658 F.3d at 753
In August, when the hospital finally faxed the MRI results to Lawrence,
Dr. Pittman submitted collegial referrals for an ENT follow-up and surgery, and she
provided post-operative care. Dr. Pittman argues that these actions show a lack of
deliberate indifference based on the totality of her care. A jury, in weighing this evidence,

may agree. But a jury could also find that Dr. Pittman knew of Bogan’s need for specialist
follow-up after the MRI and consciously disregarded a risk to his health in not attempting
to obtain the results earlier, forcing Bogan to wait four months for appropriate treatment.
On this record, a reasonable jury could find that Dr. Pittman acted with a
criminally reckless state of mind in allowing a four-month delay in care and, as such, Dr.

Pittman is not entitled to summary judgment.
d. Wexford Health Sources, Inc.
Bogan asserts that a genuine issue of material fact exists as to whether Wexford
inexplicably delayed his ENT follow-up and the surgical removal of his cyst. He proceeds
on this claim against Wexford under Monell. Wexford’s liability is governed by Monell,

because although Wexford is a private corporation, in providing medical care to
prisoners it acts under the color of state law. Dean v. Wexford Health Sources, Inc., 18 F.4th
214, 235 (7th Cir. 2021). To substantiate his claim, Bogan must show that Wexford’s
express policy or widespread practice or custom directly caused him to suffer a
deprivation of a federal right, and such policy, custom, or practice reflects a conscious
disregard for the known or obvious risk of the constitutional deprivation. Id. at 235-36.
Bogan argues that Wexford’s specialty care policy and collegial review process is
flawed. Even just considering his personal circumstances, which is not enough under a
Monell claim, all of Bogan’s specialty care procedures—the ultrasound, ENT consultation,
MRI, ENT follow-up, and surgery—were approved in Wexford’s collegial review process
within days or weeks. The first ultrasound had the longest waiting period of three weeks.
In that instance, the collegial review physician urged Bogan’s medical providers to
monitor his response to antibiotic treatment before sending him for an ultrasound. But
the request was renewed and approved shortly thereafter. Each subsequent request was
approved in much less time. Moreover, while there is a genuine issue of material fact as
to a constitutional violation with the delay in obtaining MRI results, this delay cannot be
attributed to any express policy or widespread practice of Wexford, and does not involve
the specialist care policy with which Bogan takes issue. Accordingly, Wexford is entitled
to summary judgment.
II. Intentional Infliction of Emotional Distress
Under Illinois law, three elements are necessary to substantiate a claim of
intentional infliction of emotional distress: (1) extreme and outrageous conduct by the
defendant, (2) either intent to cause distress or knowledge of a high probability that the
defendant’s own conduct will cause severe emotional distress, and (3) that severe
emotional distress actually resulted. Feltmeier v. Feltmeier, 207 IlL.2d 263, 269 IIl.Dec. 228,
798 N.E.2d 75, 80 (2003); see also Dixon v. County of Cook, 819 F.3d 343, 351 (7th Cir. 2016).
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To constitute extreme and outrageous conduct, a defendant’s actions must be so extreme
as to go beyond all possible bounds of decency, which would be regarded as intolerable

in a civilized society. Feltmeier, 798 N.E.3d at 81 (citing Kolegas v. Heftel Broadcasting Corp.,
154 Ill.2d at 21, 180 Ill.Dec. 307, 607 N.E.2d 201 (1992)).
As discussed above, Dr. Shah and Stover’s actions in treating Bogan’s cyst fell
within professional standards of reasonable care. Certainly, on the facts in this record,
their conduct could not be described as extreme and outrageous or going beyond all
possible bounds of societal decency. Further, the medical records contain no evidence

that Dr. Shah knew of Bogan’s stress and anxiety related to his condition or his family
history of cancer, much less that he used such knowledge to intentionally cause Bogan
severe emotional distress. Bogan’s declaration indicates that he mentioned his anxiety to
Stover in March, but even taken as true, there is no evidence that she knew of his family
history of cancer or understood his concerns to rise above the normal level of anxiety

associated with any medical issue. Nothing in the record suggests that Stover exploited
this knowledge to intentionally cause Bogan emotional distress.
Bogan, in his declaration, also suggests that he told Dr. Pittman of his anxiety and
fear of dying because of the cyst. The medical records do not reflect any complaints of
fear or anxiety. Similar to Stover, there is no indication that Dr. Pittman knew of Bogan’s

family history of cancer or understood the anxiety to be more than general medical
concern. Although the Court has determined that a genuine issue of material fact exists
as to Dr. Pittman’s deliberate indifference in delaying care, the subjective standard is akin
to recklessness, not an intentional state of mind. Thus, even if a jury could find Dr.
Pittman acted deliberately indifferent, there is no evidence in the record that she acted
intentionally to cause Bogan severe emotional distress.
Accordingly, Bogan’s claim of intentional infliction of emotional distress cannot
survive summary judgment.
CONCLUSION
For these reasons, the motion for summary judgment (Doc. 117) is GRANTED as
to Vipin Shah, Sara Stover, and Wexford Health Sources, Inc. on all claims, and as to
Dr. Pittman on the claim of intentional infliction of emotional distress. The motion is
DENIED as to Dr. Pittman for deliberate indifference in delaying medical care.
Further, by separate order, the Court will appoint counsel for Bogan as the case

moves beyond summary judgment. He has previously demonstrated indigence and has
attempted to procure counsel on his own, and now, with the procedural posture of the

case, it will be challenging for Bogan to litigate the remaining claim on his own. See Pruitt
v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). Once counsel is appointed, a status conference
will be set to select a firm trial date.
IT IS SO ORDERED.
DATED: September 23, 2022
neff mast!
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10155515. Public record. Not legal advice.