Green v. Wexford Health Sources, Inc.

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JEROME GREEN,

Plaintiff,

v. Case No. 19-cv-627-JPG

STEPHEN RITZ,

Defendants.

MEMORANDUM AND ORDER

GILBERT, District Judge:

This matter is before the Court for consideration of a Motion for Summary Judgment filed

by Defendant Steven Ritz, D.O. (“Defendant” or “Dr. Ritz”). Plaintiff Jerome Green (“Plaintiff”

or “Green”), through counsel, opposes the motion. (Doc. 68). Defendant has filed a reply. (Doc.

69). For the reasons set forth below, the motion shall be DENIED.

BACKGROUND

This case involves a federal suit for deprivations of constitutional rights pursuant to 42

U.S.C. § 1983. Green alleges he had a swollen keloid on his neck, which Dr. Ritz denied

multiple requests for removal and only provided Green with aspirin despite alleged serious pain.

(Doc. 6 at 2). The keloid eventually “erupted,” became infected, and Green was only provided

with band-aid and tape. Id. Plaintiff suffered with the infected keloid before being referred for

outside surgery. Id. Following preliminary review of this matter under 28 U.S.C. § 1915A, the

Court dismissed defendant Wexford Health Sources, Inc. (“Wexford”) for a failure to state a

claim for relief for deliberate indifference. Green was allowed to proceed with a claim for

deliberate indifference against Dr. Ritz, a Wexford employee, for delaying Green’s surgery for

removal of his keloid for over a year. (Doc. 6 at 3).

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dr. Ritz filed for summary judgment on the merits of the claim. Dr. Ritz argues that

Green did not suffer from an objectively serious medical condition, and Dr. Ritz was not

deliberately indifferent to Green’s serious medical needs under the Eighth Amendment because

he relied on the treatment of other doctors and exercised his own medical judgment in denying

Green anything beyond “conservative onsite treatment.” Additionally, Dr. Ritz argues he is

shielded from liability by qualified immunity.

PLAINTIFF’S RESPONSE

Green opposes the motion. Green argues that his keloid was extremely painful, and

evidence in the record suggests Dr. Ritz exercised no medical judgment in denying Green’s

requests for outside treatment, and his reasons were speculative, pretextual, and contrary to

Wexford’s medical guidelines. Additionally, Green argues Dr. Ritz has no claim for qualified

immunity because qualified immunity does not apply to private medical personnel in prisons.

FACTS

Green is an inmate at Menard Correctional Center (“Menard”). Dr. Ritz was employed by

Wexford as Corporate Utilization Management (“UM”) Medical Director. Dr. Robert Smith was

a Wexford physician mainly working in UM. Dr. Mohammed Siddiqui (“Dr. Siddiqui”) was

employed by Wexford as the Menard Medical Director. UM Physicians review requests for

outside treatment, which are reviewed for medical necessity and cost of treatment. Wexford pays

for any outside referrals of inmates. Such requests for outside treatment are submitted by site

medical directors, and the UM team will have a collegial review to discuss the request. If a

request is not agreed upon during the collegial review, an Alternate Treatment Plan (“ATP”) is

recommended. Once an ATP is recommended, the date of when the case needs to be readdressed

is provided during the collegial call by the UM physician. Once an ATP has recommended, the

site director can appeal the ATP, which exists because the treating physician has direct

involvement with the patient.

Green experienced a keloid on his neck, which is a skin condition caused from

overgrowth of scar tissue, and testified it caused substantial pain. Green testified that by May 29,

2017, he had been expected the pain for nearly a year and a half, and until he was provided

surgery in May 2018. The keloid exhibited brown or yellow drainage between April 2018 and

May 2018. Additionally, as of May 29, 2017, the keloid had brown discharge and an odor. Green

was provided medication for the drainage, and it only changed the color of the drainage to

yellow. Menard medical personnel tested the drainage and determined the keloid was infected.

Additionally, Dr. Siddiqui testified between April 13, 2017, and July 20, 2017, the keloid was

“oozing blood . . . at the base of the keloid.” (Doc. 68 at 9). By November 22, 2017, the keloid

was chronically bleeding. Id. Green received gauze and dressings for his keloid everyday

between the time of the first referral request and May 2018. However, the keloid grew from 10

cm by 4 cm in April 2017 to 13 cm by 6 cm in May 2018. Id.

Green indicated his pain would disrupt his sleep, and his pain was a 9/10. Green also

indicated his keloid altered his activities, such as his inability to write his autobiography. He

could no longer play cards because other inmates did not want to touch the cards he touched

because of the presence of blood and drainage. Green could no longer work because the pain

affected his concentration, and the keloid was so heavy it affected his breathing. Additionally,

Green would get into fights with cellmates because of the keloid’s odor and blood, which spilled

into common areas. Additionally, because he could not chew fast enough during the time allotted

because of how the keloid pressed on his throat, he received a feed-in permit. Id. at 10.

Plaintiff alleges there were five separate instances of documented denials of treatment.

a. April 28, 2017

On April 13, 2017, Green saw a nurse, who noted his keloid was “large” and “sausage-

like.” The nurse prescribed an antibiotic for 14 days and sent in a referral request to Wexford

UM for a general surgical consultation. On April 28, 2017, Green saw the nurse again and

prescribed another antibiotic for 10 days. On that same day, Dr. Siddiqui and Dr. Ritz discussed

the April 13 referral where they denied the referral request and agreed to an ATP to obtain notes

about how long the keloid was present, how it impacted Green’s daily activities, and a picture.

Dr. Ritz does not recall the treatment plan for the keloid at this time or what the treatment

options he considered.

On May 29, 2017, Plaintiff was seen in nurse sick call, and he reported stabbing pain and

was given Acetaminophen. On June 27, 2017, Plaintiff saw Dr. Siddiqui who directed photos be

sent to Dr. Ritz. (Doc. 67 at ¶ 16).

b. July 25, 2017

On July 24, 2017,1 Dr. Siddiqui and Dr. Ritz discussed Green’s condition in another

collegial review. On that same day, Dr. Siddiqui appealed Dr. Ritz’s April 28, 2017, denial of

surgical consultation. On July 25, 2017, Dr. Ritz denied the surgical consultation. The denial

states that photos of the keloid were received, there were no signs of infection or drainage, the

keloid was a pre-existing cosmetic condition, the keloid does not meet the IDOC criteria for

surgical removal, and the treating physicians should continue to monitor on site and treat

symptomatically. Green’s ATP was to treat his symptoms.

1 Defendant indicates that the collegial review occurred on July 20, 2017, and Plaintiff indicates

it occurred on July 24, 2017. (Doc. 67 at ¶ 18); (Doc. 68 at 6).

c. October 30, 2017

On September 14, 2017, Green was seen by a nurse for the keloid, who charted the

presence of drainage, tenderness, pain, but no swelling or redness. Dr. Siddiqui ordered Bactrim

DS for 10 days. On October 11, 2017, Green saw the nurse regarding his keloid again and the

nurse charted the keloid was unchanged with no drainage. The nurse prescribed Robaxin for two

weeks, and Clinamycin for 7 days.

On October 30, Dr. Siddiqui saw Green for the keloid again and Robaxin renewal. Dr.

Siddiqui charted “neck-bleeding” and referred Plaintiff to collegial review for a third time. Dr.

Siddiqui asked for a general surgery consultation because Green had a “humongous” and bloody

keloid. (Doc. 68 at 7). On November 2, 2017, Dr. Siddiqui and Dr. Smith discussed the October

30 request for collegial review.2 Dr. Smith did not approve the general surgeon for a consultation

and an ATP was elected to provide silicone gel sheets to reduce the size and soften Green’s

keloid. However, Dr. Smith stated the keloid had “bloody drainage” and surgical removal had a

“high risk of complication” because of the keloid’s location. Dr. Smith indicated that if silicone

gel sheets were unsuccessful, he would recommend a dermatologist.

d. November 30, 2017 and December 1, 2017

On November 21, 2017, Plaintiff was issued a triple antibiotic ointment with his dressing

supplies. On November 22, 2017, Green saw Dr. Siddiqui who issued an extra feed-in permit.

Dr. Siddiqui filed another request for an outside surgical consultation. The referral notes indicate

the keloid was “humongous” with a chronic bleed, and that photographs were sent separately. On

2 Dr. Smith became involved with collegial reviews at Menard because Dr. Ritz was overseeing

Wexford’s contracts with Maryland due to a departure of a UM physician.

November 30, 2017, Dr. Siddiqui and Dr. Smith discussed the November 22, 2019, referral

request in collegial review. Dr. Smith did not approve the request for surgical consultation.

On December 1, 2017, Dr. Ritz reviewed the referral request for Green to see a general

surgeon. Dr. Ritz’s records indicate that now the keloid had chronic bleeding and intermittent

purulent drainage, meaning that the drainage was not clear. Dr. Ritz did not approve the request

for a surgical consultation.

e. January 5, 2018

On December 14, 2017, Green saw a nurse about his keloid and complained of the

drainage and foul order. There was blood on Green’s t-shirt. On December 21, 2017, Dr.

Siddiqui submitted another request for a surgical consultation. His request noted the keloid was

“continuously bleeding and infected” and required an “outside eval[uation].” (Doc. 68 at 9). Dr.

Smith covered the January 4 collegial review, denied the request for surgical consultation, and

requested photographs of Green’s keloid be taken and sent to Dr. Ritz for input. Dr. Ritz, when

deposed, indicated he does not recall reviewing the pictures but did receive them.

f. Surgery

On January 24, 2018, a Wexford UM nurse sent Dr. Ritz an email stating Green was

upset nothing was done about his keloid. The nurse’s email stated “Dr. Smith wanted this to be

deferred to you for a decision. ... Dr. Smith feels that it’s [sic] anatomical location makes it too

risky to remove ... They are now requesting a Plastics Eval. ... Dr. Smith wanted pictures sent in

and for the case to be sent to you. Pics are attached." In response to this email, Dr. Ritz explained

that “[i]n order to comment, further objective information is needed,” specifically: objective

evidence of ADL dysfunction and objective evidence of growth or active recurrent infection, or

bleeding that required physician intervention. On February 2, 2018, Dr. Siddiqui provided

information in response to Dr. Ritz’s questions. Dr. Siddiqui explained that Green was unable to

sleep on his left side due to the sizejn and location of the keloid, that the keloid had “frequent

bleeding and infections,” and that the keloid was growing and so large that it was restricting the

movement of Green’s neck.

On February 6, 2018, Dr. Ritz received an email informing him that Dr. Siddiqui and

Menard medical staff wanted to discuss Green’s case. The next day,3 Dr. Steven Meeks (“Dr.

Meeks”), IDOC’s Medical Director, had overridden Wexford’s decision and approved Green for

a surgical evaluation. Dr. Meeks had final authority, and Wexford’s role as UM was over. On

February 7, 2018, Green was formally authorized to have a surgical consultation.

On March 23, 2018, Green had a surgical consultation at Lincoln Surgical Center. The

doctor informed Green that the keloid had grown too large to perform surgery and recommended

a head and neck reconstruction surgeon. On May 4, 2018, Plaintiff’s keloid was evaluated by a

head and neck surgeon at St. Louis University (“SLU”) who concluded he could perform a

successful surgery. On May 10, 2018, Dr. Siddiqui presented Green in a collegial review to Dr.

Ritz for a left mass resection at SLU and Dr. Ritz approved the request. Surgery was performed

to remove the keloid in May 2018.

Two years later, the keloid grew back. In August 2020, Green had a second surgery, and

the keloid has not grown back.

ANALYSIS

Summary judgment will be granted if the “movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ.

3 Dr. Ritz’s brief indicates that the decision by IDOC to direct Plaintiff to be sent for surgical

evaluation was done on February 6 and Green’s belief indicates this decision was made on

February 7.

P. 56(a). The facts and all reasonable inferences are drawn in favor of the nonmoving party.

Kasten v. Saint–Gobain Performance Plastics Corp., 703 F.3d 966, 972 (7th Cir.2012).

Summary judgment is improper “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, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986).

The Eighth Amendment to the Constitution prohibits the infliction of cruel and unusual

punishments on prisoners. U.S. Const. amend. XIII. An inmate's punishment “must not involve

the unnecessary and wanton infliction of pain,” Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct.

2909, 49 L.Ed.2d 859 (1976), and “deliberate indifference to serious medical needs of prisoners”

violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d

251 (1976).

To determine if the Eighth Amendment has been violated in the prison medical context,

the Court perform a two-step analysis, first examining whether a plaintiff suffered from an

objectively serious medical condition, and then determining whether the individual defendant

was deliberately indifferent to that condition. Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir.

2016), as amended (Aug. 25, 2016) (internal citations omitted). In short, there is an objective and

subjective element to this test.

i. Plaintiff suffered an objectively serious medical condition

In evaluating an Eighth Amendment claim, we start by determining if the medical

condition the plaintiff suffered was objectively serious. Id. “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.” 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).

Here, the facts are not disputed that multiple physicians including Dr. Siddiqui,

diagnosed the keloid as requiring treatment. Additionally, based on descriptions of the keloid in

the record as “large,” “fist-sized,” “sausage-like,” “oozing blood,” discharge of varying colors

from brown to yellow, infected, and grown from 10 cm by 4 cm in April 2017 to 13 cm by 6 cm

in May 2018. Additionally, Green testified he was uncomfortable, indicated he was in substantial

pain, could not sleep because of the pain, had difficulty engaging in daily activities, and had to

receive a feed-in permit because he could not chew quickly based on the placement of the keloid.

Additionally, multiple health professionals including Dr. Siddiqui, Dr. Meeks, other medical

professionals at Menard, including surgeons who later evaluated Green, indicated the keloid had

grown, was infected, and needed to be treated, and eventually operated on. The Court finds,

providing all reasonable inferences in favor of Green, a layperson would find that Green’s keloid

needed to be treated, and therefore, was an objectively serious medical condition.

Defendant argues that a list of cases within this circuit regarding keloids show that it is

not a serious medical condition. Those cases are distinguishable. In Wheeler v. Talbot, the

Seventh Circuit Court of Appeals held that plaintiff’s keloid was not an objectively serious

medical condition. Wheeler v. Talbot, 695 F. App'x 151, 154 (7th Cir. 2017). In Wheeler,

plaintiff was seen by Talbot four separate times, who concluded the keloid was purely a cosmetic

issue. The Seventh Circuit reasoned it was not objectively serious because plaintiff did not

contradict that during the exams, the keloid was intact and showed no signs of infection, oozing,

bleeding, or trauma. Id. Here, the evidence in the record, including in his chart and referral notes,

shows that Green’s keloid was indeed infected, oozing, and bleeding. Wheeler is distinguishable.

Defendant also cites Leach v. Ritz in its support. No. 18-CV-947-NJR-RJD, 2019 WL

8063921 (S.D. Ill. Sept. 9, 2019), report and recommendation adopted, No. 18-CV-947-NJR-

RJD, 2019 WL 6713258 (S.D. Ill. Dec. 10, 2019). Leah involves the same doctors in this case –

Dr. Ritz and Dr. Siddiqui. Here, the Leah court found plaintiff’s keloids were not objectively

serious because Dr. Siddiqui “found no signs of infection or active folliculitis.” Id. at 3.

Additionally, the court noted the objective findings in the medical records do not establish a

finding of a serious medical need. Id. Additionally, the court noted a medical condition can be

objectively serious if it affects the individual’s daily activities, or causes chronic or substantial

pain, and did not find the record supported that finding. Id. (noting plaintiff has lived with his

keloid for two years and did not seek any further medical treatment). Here, the record indicates

Green’s keloid showed drainage, tenderness, and pain (September 14), “bleeding” (October 30),

“bloody drainage” (November 2), chronic bleeding (November 22), intermittent purulent

drainage (December 1). Additionally, the record is clear at least on January 5, 2018, Sr. Siddiqui

noted the keloid was draining, bloody and dropping on Green’s t-shirt, and showed signs of

infection. In fact, he was treated for the infection with antibiotics on numerous occasions. Green

complained of significant pain and did not live with his keloid for years while litigation was

pending. This case is distinguishable from Leach.

Defendant also cites Warren v. Coe in its support. No. 3:17-CV-0917-GCS, 2020 WL

1703603 (S.D. Ill. Apr. 8, 2020). In Warren, the court held that plaintiff’s keloid on his ear was

not a “serious medical condition” because there were no signs of infection or bleeding, and there

was no evidence the keloid affected his daily activities. Id. at *5. However, as stated above, there

is ample evidence that Green’s keloid was infected, bloody, and draining various colors.

Additionally, there is ample evidence the keloid affected Green’s daily life. Green indicated he

could not sleep properly, could not write, or read as long because of the pain, and required a

feed-in permit because he could not chew fast to eat his food during the allotted time in the food

hall. Defendant argues that Green’s claims of impacts on daily living are rebutted because he was

hurt while trying to work out. However, the Court provides reasonable inferences in favor of

Green and looks at his complaints of sleep, substantial pain, recorded attempts to gain medical

treatment, feed-in permit, and conflict with other inmates as sufficient evidence a reasonable jury

could find in favor of a finding his keloid was objectively serious. This case is distinguishable

from Warren.

Here, Defendant argues that Green’s keloid was simply cosmetic and not life threatening.

However medical condition need not be life threatening to be objectively serious. Gayton, 593

F.3d at 620. Drawing all reasonable inferences in favor of Green, the Court finds that a jury

could find the keloid was objectively serious.

Green argues that there are other courts within this circuit that have shown that keloids

can be an objectively serious medical condition. Conner v. Hoem, No. 17-CV-948, 2018 WL

11265508, at *8 (E.D. Wis. Sept. 13, 2018), aff'd sub nom. Conner v. Waterman, 794 F. App'x

527 (7th Cir. 2020) (“If a jury were to credit Mr. Conner's characterization of his keloids [bleed,

ooze, and painful], it could reasonably conclude that he suffered from an objectively serious

medical condition.”). The Court agrees a reasonable jury could conclude he suffered from an

objectively serious medical condition.

ii. Whether Dr. Ritz was Deliberately Indifferent to Green’s Medical Needs

To determine if a prison official acted with deliberate indifference, the Court looks into

his or her subjective state of mind. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996) (citing

Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). For a prison

official's acts or omissions to constitute deliberate indifference, a plaintiff does not need to show

that the official intended harm or believed that harm would occur. Id. at 992. But showing mere

negligence is not enough. Estelle, 429 U.S. at 106, 97 S.Ct. 285; McGee v. Adams, 721 F.3d 474,

481 (7th Cir. 2013) (“Deliberate indifference is not medical malpractice.”). Even objective

recklessness—failing to act in the face of an unjustifiably high risk that is so obvious that it

should be known—is insufficient to make out a claim. Farmer, 511 U.S. at 836–38, 114 S.Ct.

1970. Instead, the Supreme Court has instructed that a plaintiff must provide evidence that an

official actually knew of and disregarded a substantial risk of harm. Id. at 837, 114 S.Ct. 1970.

The Seventh Circuit has identified several circumstances that can be enough to show

deliberate indifference. First, and most obvious, is a prison official's decision to ignore a request

for medical assistance. Petties, 836 F.3d at 729. An inmate does not need to show he was

“literally ignored,” but if a “risk from a particular course of medical treatment (or lack thereof) is

obvious enough, a fact finder can infer a prison official knew about it and disregarded it.” Id.

(internal citations omitted). In a medical context, “medical professional's treatment decision must

be “such a substantial departure from accepted professional judgment, practice, or standards as to

demonstrate that the person responsible did not base the decision on such a judgment.” Cole v.

Fromm, 94 F.3d 254, 260 (7th Cir. 1996). Evidence some medical professionals would have

chosen a different course of treatment is insufficient. Petties, 836 F.3d at 729.

A hint of where a medical professional is beyond the permissible bounds of competent

medical judgment is “when a doctor refuses to take instructions from a specialist.” Id. Another, is

where he or she “fails to follow existing protocol.” Id. Another example that might establish a

departure is where a prison official “persists in a course of treatment known by be ineffective.”

Id. In Petties, the Seventh Circuit states, for example, this can be shown if “knowing a patient

faces a serious risk of appendicitis, the prison official gives the patient an aspirin and sends him

back to his cell, a jury could find deliberate indifference even though the prisoner received some

treatment.” Petties, 836 F.3d at 730; see also Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005)

(continuing to treat severe vomiting with antacids over three years created material fact issue of

deliberate indifference), Additionally, choosing a “easier and less efficacious treatment” without

exercising professional judgment, can also constitute deliberate indifference. Estelle, 429 U.S.

97, 105, 97 S.Ct. 285 (material fact of deliberate indifference where there was a painkiller and

ice treatment for suspected fractures). The Seventh Circuit has cautioned that while the cost of

treatment can be a factor in determination of treatment, medical professionals cannot simply

resort to easier course of treatment that they know is ineffective. Petties, 836 F.3d at 730.

Defendant argues that the facts indicate Dr. Ritz, of the four collegial reviews he was

involved in, did not disregard a substantial risk of harm. (Doc. 67 at 14). First, Defendant argues

that Green’s disagreement with the decisions to not surgically remove the keloid is insufficient to

show deliberate indifference. Id. Green argues that while Dr. Ritz noted that every keloid is

“unique” and dependent on “multiple different variables,” his proffered reasons were not

particular to Green and Green’s keloid. (Doc. 68 at 20). The Court believes there is a factual

issue as to whether Dr. Ritz was deliberately indifferent.

Defendant argues that Green cannot show that the four collegial reviews Dr. Ritz

participated in (April 28, 2017, July 25, 2017, December 1, 2017, and January 24, 2018),

demonstrate Dr. Ritz knew of a substantial risk of harm and disregarded the risk. On April 28,

2017, the first instance of a collegial review, Dr. Ritz and Dr. Siddiqui agreed to an ATP to

obtain additional information, monitor the keloid for drainage, and send a picture. (Doc. 67 at

14-15). The Court is unclear as to what monitoring was conducted, and what follow up was

done. Dr. Ritz requested a picture during this April collegial review and testified he received a

picture by July 25, 2017. It is reasonable that Dr. Ritz was attempting to treat the keloid

conservatively. However, on May 29, 2017, Plaintiff was seen in nurse sick call, reported

stabbing pain, was given Acetaminophen. By the next collegial review on July 20, 2017, Dr. Ritz

and Dr. Siddiqui discussed Green’s keloid and felt that it did not warrant a surgical consultation

because the picture did not show signs of infection or drainage. Again, it is clear that Dr. Ritz

wanted to treat the keloid symptomatically and conservatively.

On September 14, 2017, Green was seen by a nurse, who charted the presence of

drainage, tenderness, and pain. At this point, months have passed since Green’s initial collegial

review and a jury could reasonably infer that he was still showcasing pain, and now

demonstrating drainage, a reason for a conservative ATP during the first collegial review. While

Dr. Smith and Dr. Ritz were involved in the October 30 collegial review, a conservative

treatment of silicone sheets was given, and a surgical consultation was denied. By November,

referral notes by Dr. Siddiqui show that the keloid was “humongous” with a chronic bleed.

However, Dr. Smith did not approve a surgical consultation request on November 22.

A few weeks later on December 1 when Dr. Ritz reviewed another referral request by Dr.

Siddiqui, records indicate the keloid had chronic bleeding and intermittent purulent drainage.

However, Dr. Ritz again did not approve the request for a surgical consultation. Green does not

need to show that he was “literally ignored” but a fact finder may infer at this point that Green’s

keloid was demonstrating chronic bleeding, colored drainage, and causing Green significant

pain, and that a conservative treatment of treating symptoms and silicone sheets was not treating

the keloid effectively. Petties, 836 F.3d at 729.

While the law is clear that there is no constitutional violation where there is evidence

some medical professionals would have chosen a different course of treatment, Petties, 836 F.3d

at 729, Dr. Siddiqui, another treating physician, testified that the conservative treatments were

ineffective. Dr. Siddiqui continuously requested a surgical referral for outside surgical referral

when the keloid was not improving. Petties, 836 F.3d at 731 (“But repeatedly, we have rejected

the notion that the provision of some care means the doctor provided medical treatment which

meets the basic requirements of the Eighth Amendment.”). Additionally, the facts show that the

IDOC Medical Director, Dr. Meeks overturned Dr. Ritz’s decision not to refer for a surgery,

which is a rare occasion. A jury could find that, while there was a difference of medical opinion,

Dr. Ritz was persisting “in a course of treatment known by be ineffective” and other physicians

had to intervene to get Green a surgical referral. Id. at 730.

The Court understands Dr. Smith’s perspective (enshrined in an email from a nurse to Dr.

Ritz on January 24, 2018) that Dr. Smith believes that surgery was too risky to remove because

of its “anatomical location.” However, as Green argues, the “risks of surgery was something a

surgeon could decide.” (Doc. 68 at 24). The Court agrees, especially in light of the fact Green

had been complaining of subjective pain, indicated he could not do certain daily activities, and

was demonstrating drainage and bleeding from April 2017 to January 2018. A reasonable jury

could find, especially by the third, fourth, or fifth denial of surgical consultation that choosing a

“easier and less efficacious treatment” could constitute deliberate indifference. Estelle, 429 U.S.

at 104–05, 97 S.Ct. 285.

Green argues that there is evidence of deliberate indifference because Dr. Ritz did not

consider a treatment suggested by Wexford’s published guidelines. Specifically, Green points to

a guideline provision requiring a consideration of a dermatology referral for “extremely large” or

“symptomatic” keloids. (Doc. 68 at 21). In response, Defendant argues that he did consider a

referral to a general surgeon and was not deliberately indifferent to considering a surgical referral

instead of a dermatology referral. (Doc. 69 at 2). Additionally, Defendant argues that “Plaintiff

offers no evidence that Ritz’s decisions would have been different had Ritz considered a

dermatology referral rather than a surgical referral.” Id. Considering Dr. Ritz’s lack of

recollection on this issue, and in totality of the rest of the evidence in the record, the Court

believes this is yet another factual issue where summary judgment is inappropriate. Additionally,

Defendant does not show us caselaw that requires Green show evidence that the guideline

requirement, here a dermatology referral, would have been different. At summary judgment,

Defendant must set forth evidence that shows there are no material disputes.

Green also points to the fact that surgery was ultimately approved in May 2018 by Dr.

Ritz, which indicates a factual issue that his previous denials were medically unsound. Defendant

argues that Dr. Ritz’s reason for ultimately approving the surgical evaluation was because he was

“expected” to approve the surgery referral after the IDOC Medical Director, Dr. Meeks, had

approved the surgical evaluation. As the court in Petties notes that context of a doctor’s

treatment decision can sometimes “override his claimed ignorance of the risks.” Petties, 836 F.3d

at 731. Specifically, Petties states that these context clues “existence of documents the doctor

regularly consulted which advised against his course of treatment, evidence that the patient

repeatedly complained of enduring pain with no modifications in care, inexplicable delays or

departures from common medical standards, or of course, the doctor's own testimony that

indicates knowledge of necessary treatment he failed to provide.” Id. This Court believes the jury

is entitled to weigh this evidence, and this evidence produces a factual issue not appropriate for

summary judgment.

Defendant argues this case is analogous to that of Stallings v. Zhang, 607 Fed. Appx. 591,

592-93 (7th Cir. 2015). In Stallings, the Seventh Circuit affirmed the district court granting

summary judgment in favor of Williams and other Stateville medical professionals, finding that

their conservative treatment of the inmate's keloids, which likewise included prescribing oral and

topical antibiotics and creams, and administering steroid injections, satisfied the Eighth

Amendment. Stallings noted there was any absence evidence that the Stateville medical

professionals deviated from accepted professional standards. Id. However, as noted above, there

is some evidence that Dr. Ritz deviated from the professional standards and persisted in

potentially ineffective conservative treatment of Green’s keloid after sustained pain, drainage,

and infection.

Defendant further points to O'Quinn v. Feinerman, Case No. 10-CV-917-GPM, 2013 WL

1287067, at *5 (S.D. Ill. Mar. 28, 2013). In this case, the court granted summary judgment where

plaintiff complained the treatment of his keloids amounted to deliberate indifference. This case is

distinguishable because there were no factual issues, records indicate plaintiff did not complain

of keloids with a visit with defendant, and defendants did not find evidence of either blood, puss

or infection. Id. Here, the Court has found genuine issue of material fact Dr. Ritz acted with

deliberate indifference in treating Green’s keloid.

For all these reasons, and providing all reasonable inferences in favor of Green, the Court

finds Dr. Ritz has not met its burden of showing there are no material facts in dispute entitling

him to summary judgment. Green has a right for a jury to hear the evidence and to determine

whether Dr. Ritz was deliberately indifferent in treating his keloid.

iii. Whether Dr. Ritz is shielded based on qualified immunity

Defendant argues that Dr. Ritz is entitled to summary judgment based on qualified

immunity (Doc. 67 at 19-20). However, “qualified immunity does not apply to private medical

personnel in prisons.” Petties, 836 F.3d at 734. Additionally, even if Dr. Ritz were entitled to

qualified immunity, “threshold factual questions of the defendants’ states of minds remain

disputed” and therefore, “summary judgment on the basis of qualified immunity is

inappropriate.” Id. (internal citations omitted).

CONCLUSION

The Court hereby DENIES Defendant Steven Ritz, D.O.’s Motion for Summary

Judgment (Doc. 66). The Court will schedule a telephone status conference by separate order to

select dates for the Final Pretrial Conference and Jury Trial.

IT IS SO ORDERED.

DATED: March 7, 2023

/s/ J. Phil Gilbert

J. PHIL GILBERT

U.S. DISTRICT JUDGE