Edward Zaragoza v. Wexford of Indiana, LLC

FILED

Jan 25 2024, 8:58 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case No. 23S-CT-99

Edward Zaragoza,

Appellant (Plaintiff below)

–v–

Wexford of Indiana, LLC, et al.,

Appellees (Defendants below)

Argued: June 22, 2023 | Decided: January 25, 2024

Appeal from the Marion Superior Court,

No. 49D03-1906-CT-22347

The Honorable Gary L. Miller, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 22A-CT-206

Opinion by Justice Goff

Chief Justice Rush and Justices Massa, Slaughter, and Molter concur.

Goff, J.

An inmate must rely entirely on prison authorities to see that his or her

medical needs are met. If they aren’t, the route to relief runs through the

courts, which must not prematurely close their doors to a potentially

meritorious claim. The inmate here suffers from hypothyroidism. Prison

doctors prescribed him medication, but he complained of side effects. This

led him to make persistent requests for alternative medication over

several years. Eventually, he filed this suit against three doctors and their

employer, seeking damages and injunctive relief on claims of medical

malpractice and deliberate indifference to serious medical need. The trial

court awarded summary judgment to the defendants even though the

inmate presented the affidavit of a physician deploring the defendants’

treatment decisions. Today, we clarify what makes a medical expert’s

affidavit both admissible and substantively sufficient to create an issue of

fact in a malpractice case. And, applying our well-established summary-

judgment standard, we find conflicts in the evidence that require us to

reverse the trial court.

Facts and Procedural History

The plaintiff, Edward Zaragoza, is incarcerated at Wabash Valley

Correctional Facility. The defendants, Samuel J. Byrd, M.D., Naveen

Rajoli, M.D., and Jackie L. West-Denning, M.D., are licensed physicians

who were employed by Wexford of Indiana, LLC, a firm contracted for

medical services at DOC facilities. Each of the doctors provided medical

care to Zaragoza at the prison.

In 2012, Zaragoza was diagnosed with hypothyroidism. He was

initially prescribed the medication Synthroid, which is generally

recommended, but the dosage was reduced after he complained of side

effects. In 2015, Zaragoza first experienced what might have been

symptoms attributable to his condition. Beyond these background facts,

however, the opposing parties dispute almost every point concerning

Zaragoza’s condition and treatment.

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According to the defendants, Zaragoza has “subclinical”

hypothyroidism. Appellees’ Br. at 8. All three defendant doctors

prescribed Synthroid, which they say Zaragoza refused to take as ordered.

In their opinion, Zaragoza did not suffer severe adverse effects or allergic

reactions clearly attributable to the medication, as opposed to symptoms

of his under-medicated condition. And all give the opinion, as medical

experts, that they provided appropriate treatment “within the community

standard of care for general practitioners.” App. Vol. II, pp. 112, 120, 125.

Zaragoza’s evidence paints a different picture. Dr. Richard Schultheis

reviewed Zaragoza’s records and states that he has a “serious medical

condition” that usually requires lifetime treatment. Id. at 200. He disputes

the “subclinical” label. Id. at 208–09. He explains that Zaragoza also has

multiple allergies and that he reported “severe adverse effects” from

taking Synthroid, including “severe headaches, neck pains, blurry vision

and hip pains.” Id. at 201. In Dr. Schultheis’s expert opinion, the “severity

and longevity” of Zaragoza’s “rare adverse effects” meant that the

standard of care was to discontinue Synthroid and try an alternative

medication designed for patients who are allergic to its inactive

ingredients. Id. at 202. He particularly faults Dr. Byrd for persisting in “his

ineffective and harmful treatment,” Dr. West-Denning for advising

Zaragoza to take seven days’ worth of Synthroid at once “despite

knowing the dangers,” and Dr. Rajoli for making “little or no effort” to

treat him. Id. at 202, 206, 207.

By the time he was deposed in this case in 2019, Zaragoza had not

taken hypothyroidism medication since mid-2018. He stated then that his

hormone levels were “very good,” although he continued to experience

“some symptoms.” App. Vol. III, pp. 178–79. We understand that

Zaragoza is currently being treated with a non-allergenic alternative

medication.

Acting pro se, Zaragoza filed this suit against the defendants, raising

state-law medical-malpractice claims, claims of deliberate indifference to

his medical needs in violation of the Eighth Amendment, and other claims

not at issue in this appeal. The defendants do not assert that he had to

submit a proposed complaint to a medical review panel, as the doctors are

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not qualified providers for purposes of the Medical Malpractice Act. 1 They

did, however, seek summary judgment, arguing that “the undisputed

evidence” showed they provided “appropriate care and treatment.” App.

Vol. II, p. 72. The trial court awarded summary judgment to the

defendants. Zaragoza’s motion to correct error was subsequently deemed

denied when the court failed to rule on it. See Ind. Trial Rule 53.3(A). The

Court of Appeals affirmed the judgment in a memorandum decision.

Zaragoza v. Wexford of Indiana, LLC, 194 N.E.3d 621 (Ind. Ct. App. 2022).

We granted transfer, vacating the Court of Appeals decision. See Ind.

Appellate Rule 58(A).

Standards of Review

Cases “hinging on disputed material facts” are “‘a matter for trial, not

summary judgment.’” Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184,

1188 (Ind. 2016) (quoting Hughley v. State, 15 N.E.3d 1000, 1005–06 (Ind.

2014)). Thus, a party seeking summary judgment must show that

“undisputed evidence affirmatively negates a required element” of the

non-movant’s claim or defense. Community Health Network, Inc. v.

McKenzie, 185 N.E.3d 368, 377 (Ind. 2022) (citing Siner, 51 N.E.3d at 1187–

88). The “initial burden” is on the movant to demonstrate the absence of

an issue for trial. Hughley, 15 N.E.3d at 1003. If satisfied, the burden then

shifts to the non-movant to “come forward with contrary evidence

showing an issue for the trier of fact.” Id. (internal quotation marks and

citation omitted).

Our review is de novo. Id. We consider only the evidentiary matter

“specifically designated to the trial court.” Reed v. Reid, 980 N.E.2d 277,

285 (Ind. 2012). “[A]ll factual inferences” and “all doubts as to the

existence of a material issue” are resolved in favor of the non-movant. Id.

And we “give careful scrutiny” to make sure the non-movant’s “day in

1 See Ind. Code §§ 34-18-2-24.5, 34-18-3-1, 34-18-8-4 (1998).

Indiana Supreme Court | Case No. 23S-CT-99 | January 25, 2024 Page 4 of 18

court” is not improperly denied. Siner, 51 N.E.3d at 1187 (internal

quotation marks and citation omitted).

The trial court’s decision to admit or strike evidence is reviewed for an

abuse of discretion. Williams v. Tharp, 914 N.E.2d 756, 769 (Ind. 2009).

Discussion and Decision

We first address the award of summary judgment on Zaragoza’s

medical-malpractice claims, determining that Dr. Schultheis’s affidavit

was both admissible and sufficient to present triable issues of fact. We

then address Zaragoza’s deliberate-indifference claims, finding some

evidence that each doctor knowingly failed to offer him a potentially safer

alternative medication for treatment of his condition. As a result, we

conclude that summary judgment was not warranted on these claims.

I. Zaragoza’s expert affidavit defeats summary

judgment on the malpractice claims.

The elements of a medical-malpractice claim are “‘(1) that the physician

owed a duty to the plaintiff; (2) that the physician breached that duty; and

(3) that the breach proximately caused the plaintiff’s injuries.’” Siner, 51

N.E.3d at 1187 (quoting Mayhue v. Sparkman, 653 N.E.2d 1384, 1386 (Ind.

1995)). Generally, a plaintiff cannot prevail without presenting “expert

opinion that a defendant health care provider’s conduct fell below the

applicable standard of care.” Chi Yun Ho v. Frye, 880 N.E.2d 1192, 1201

(Ind. 2008). By the same token, however, “expert opinions which conflict

on ultimate issues necessarily defeat summary judgment.” Siner, 51

N.E.3d at 1190 (citing Chi Yun Ho, 880 N.E.2d at 1200–01).

In this appeal, Zaragoza does not claim that the defendants failed to

carry their initial summary-judgment burden as to his malpractice claims.

He argues only that the affidavit of Dr. Schultheis was sufficient to create

an issue of fact. The defendants counter that Dr. Schultheis “failed to show

that he was a qualified expert on the standard of care,” drew conclusions

about Zaragoza’s condition “not based on the information contained

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within the medical records,” and opined without factual support that the

defendants breached the standard of care and caused Zaragoza injury—all

of which, they argue, renders his affidavit inadmissible. Appellees’ Br. at

24–26.

We disagree with the defendants’ argument that Dr. Schultheis’s

affidavit is not reliable enough to be admissible. And we agree with

Zaragoza that the affidavit meets the sufficiency requirements set out in

our case-law.

A. The expert affidavit is admissible on summary

judgment.

Affidavits presented on summary judgment must “set forth such facts

as would be admissible in evidence.” T.R. 56(E). 2 This includes compliance

with the requirements for expert testimony in Indiana Rule of Evidence

702. Dr. Schultheis’s affidavit satisfies this rule.

This Court has explained that the trial court is “the gatekeeper for

expert opinion evidence” and must apply Rule 702(b) to “weed out

unreliable ‘junk science’ from reliable scientific evidence.” Doe v. Shults-

Lewis Child & Family Servs., Inc., 718 N.E.2d 738, 750 (Ind. 1999). For the

court to perform this role, it “needs something more than a list of

admissible facts and a bald conclusion drawn therefrom.” Id. Thus, an

affidavit supplying an expert opinion should “state the reasoning or

methodologies upon which it is based.” Id. At the summary-judgment

stage, however, an expert need only provide the trial court “with enough

information to proceed with a reasonable amount of confidence that the

principles used to form the opinion are reliable.” Id. at 750–51. This does

not always require a complete exposition of the expert’s methodology. See

2We note that the trial court denied the defendants’ motion to exclude Dr. Schultheis’s

testimony from trial. That order is not before us. We may, however, consider affirming

summary judgment on any legal theory supported by the evidence. Owens Corning Fiberglass

Corp. v. Cobb, 754 N.E.2d 905, 914 (Ind. 2001); Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind.

1998). This includes the inadmissibility of evidence.

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Thayer v. Vaughan, 798 N.E.2d 249, 254 (Ind. Ct. App. 2003) (noting that an

expert forensic psychiatrist was “uniquely trained” to analyze the

plaintiff’s state of mind and that he “detailed” how her statements

supported his diagnostic conclusions); Yang v. Stafford, 515 N.E.2d 1157,

1161–62 (Ind. Ct. App. 1987) (deeming a medical expert’s specialty

licensure and “familiarity with the standard of care” sufficient to validate

his methods on summary judgment); cf. Akey v. Parkview Hosp., 941 N.E.2d

540, 543–46 (Ind. Ct. App. 2011) (delving more deeply into a cardiologist’s

methodology where his theory of causation had “not been scientifically

tested, discussed in medical literature, or subjected to peer review”). Still,

to comply with Rule 702(b) at summary judgment, we would expect a

medical expert’s affidavit at least to provide enough information to enable

the trial court to infer what the standard of care is and in what way the

defendant’s care fell short.

The affidavit here describes, in considerable detail, Zaragoza’s medical

history, the treatment each doctor provided, and Dr. Schultheis’s views on

what they should have done differently to comply with the standard of

care. His affidavit is no less detailed than those of the defendants. He

notes, for example, that people with multiple allergies, like Zaragoza,

“often react to acacia, an inactive ingredient” in medications such as

Synthroid. App. Vol. II, p. 201. And he reasons that Zaragoza’s reactions

were so severe, persistent, and closely connected with taking Synthroid

that they could not be a mere “sensitivity.” Id. at 200–02. This inference,

based on the medical records, supports Dr. Schultheis’s conclusion that

Zaragoza should have been offered an alternative, non-allergenic

medication. Such an opinion, delivered by a qualified physician, is not the

kind of “junk science” or “bald conclusion” that warrants weeding out at

the summary-judgment stage.

The defendants also argue that Dr. Schultheis’s opinion requires

specialist expertise or experience with hypothyroidism or allergies.

Indiana case-law has not demanded specialist medical qualifications from

experts who possess demonstrable professional knowledge of the relevant

medical matters. See Bennett v. Richmond, 960 N.E.2d 782, 789–90, 791 (Ind.

2012) (permitting a clinical psychologist to testify on the cause of a brain

injury); McIntosh v. Cummins, 759 N.E.2d 1180, 1184–85 (Ind. Ct. App.

Indiana Supreme Court | Case No. 23S-CT-99 | January 25, 2024 Page 7 of 18

2001) (citing Snyder v. Cobb, 638 N.E.2d 442, 446 (Ind. Ct. App. 1994))

(permitting a family practitioner to testify on an orthopedic surgeon’s

standard of care). Even if we were to assume that Dr. Schultheis’s

conclusions did require specialist expertise, the same limitation applies to

the defendants’ affidavits, which claim no greater specialist knowledge or

experience than Dr. Schultheis’s affidavit does. This makes the

defendants’ argument self-defeating. Indeed, one of the grounds for Dr.

Schultheis’s criticism of the defendants is their failure to consult with a

specialist.

For these reasons, we find Dr. Schultheis’s expert affidavit admissible

under Evidence Rule 702.

B. The expert affidavit is sufficient to create triable issues

of fact.

Aside from being admissible, an expert’s affidavit must also be

substantively sufficient. That is, it must supply enough information to

show that a genuine issue of material fact exists.

In Jordan v. Deery, this Court explored whether a medical expert’s

affidavit was substantively sufficient to withstand summary judgment.

609 N.E.2d 1104, 1110–11 (Ind. 1993). That case arose from “personal

injuries to mother and daughter” sustained “in the course of labor and

delivery.” Id. at 1106. An affidavit prepared by a physician expert, stating

that “the defendants had breached the standard of care,” was challenged

on three grounds. Id.

The first challenge asserted that the expert’s affidavit failed to show she

was familiar with the standard of care at hospitals in communities like

those involved in the case. 3 Id. at 1110. This Court found it sufficient that

the affidavit, along with a curriculum vitae, indicated that the expert had

attended medical school in Indiana, was licensed and practicing in-state,

3We no longer follow this “modified locality rule” for the standard of care. Vergara v. Doan,

593 N.E.2d 185, 186–87 (Ind. 1992).

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and was familiar with the applicable standard of care. Id. Her “bare

assertion” of familiarity sufficed. Id. Second, the defendants in Jordan

asserted that the affidavit had to show the nature, reliability, and accuracy

of the medical records reviewed. Id. This Court was satisfied by the

expert’s statement of having reviewed pertinent records that plainly came

from the defendant hospital. Id. Lastly, the defendants faulted the

affidavit’s failure to describe the standard of care. Id. While

acknowledging that the affidavit was “not informative in any way as to

the nature of the deviation” from the standard of care, this Court

concluded that the “lack of detail” went only to its “weight and

credibility.” Id. at 1111. The affidavit sufficed “under the facts of [the]

case,” we “reluctantly” concluded, because it established the affiant’s

“credentials as a medical expert,” stated that pertinent medical records

were reviewed, and set forth a “conclusion that the defendants violated

the standard of care” and thereby “caused the complained-of injuries.” Id.

at 1201.

In Chi Yun Ho, this Court reiterated, albeit without citing Jordan, that a

detailed discussion of the care provided is unnecessary. Chi Yun Ho

considered the defendant surgeon’s own affidavit and the deposition of

another practitioner, which were “extremely sparse in factual content.”

880 N.E.2d at 1200. Nevertheless, we held that “conflicting opinions

regarding whether a physician met the applicable standard of care” were

sufficient to defeat summary judgment, even “in the absence of facts

supporting such opinions.” Id. at 1201.

A plurality opinion of this Court in Oelling v. Rao, which predated

Jordan and Chi Yun Ho, differed from our later decisions on this key point.

Oelling required the affidavit presented by the plaintiff non-movants in

that case to “set out the applicable standard of care.” 593 N.E.2d 189, 190

(Ind. 1992) (plurality opinion). While Evidence Rule 702(b) requires

enough information to infer what the standard of care is, affidavits as

succinct as those in Jordan and Chi Yun Ho are substantively sufficient.

That is because, at trial, a qualified expert’s “medical opinion concerning

breach of duty and causation,” even if only “a conclusion,” is “admissible

in evidence.” Jordan, 609 N.E.2d at 1111 (quoting Kopec v. Mem’l Hosp. of

South Bend, 557 N.E.2d 1367, 1369 (Ind. Ct. App. 1990)). In a malpractice

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case, such an opinion “takes on the character of an evidentiary fact.” Chi

Yun Ho, 880 N.E.2d at 1201. The opinion itself therefore meets the non-

movant’s burden on summary judgment to “set forth specific facts

showing that there is a genuine issue for trial.” See T.R. 56(E). More

generally, an expert may testify in the form of an opinion at trial without

providing detailed factual explanations. See Ind. Evidence Rule 705

(permitting an expert on direct examination to “state an opinion and give

the reasons for it without first testifying to the underlying facts or data”);

Dorsett v. R.L. Carter, Inc., 702 N.E.2d 1126, 1128 (Ind. Ct. App. 1998)

(explaining that “the admissibility of expert testimony does not hinge on

the expert’s disclosure of the facts and reasoning that support his

opinion”). We would not require greater substance on summary judgment

than at trial. Nor do we wish to subject the affidavits of non-lawyers to

unnecessary hurdles.

Here, Dr. Schultheis states that he attended medical school and

obtained a degree, is currently licensed and practicing in Indiana (albeit

not full-time since 1967), and is familiar with the standard of care both

“for general practitioners in the State of Indiana” and “surrounding the

facts and circumstances in this case.” App. Vol. II, p. 199. He recites

having “reviewed all of the relevant medical records” and having held

“multiple conversations” with Zaragoza “regarding his medical

treatment.” Id. And he concludes that the doctors “did not follow the

standard of care,” thereby causing “injuries.” Id. at 209. This suffices

under Jordan to create a substantive “conflict of evidence” that “must be

resolved by a trier of fact.” See Siner, 51 N.E.3d at 1190.

Accordingly, the expert affidavit in this case is both admissible and

sufficient for Zaragoza’s medical-malpractice claims to survive summary

judgment.

II. Issues of fact exist on Zaragoza’s deliberate-

indifference claims.

The Eighth Amendment of the United States Constitution prohibits

“cruel and unusual punishment” by “prison officials.” Roe v. Elyea, 631

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F.3d 843, 856–57 (7th Cir. 2011). This guarantee “safeguards the prisoner

against a lack of medical care that may result in pain and suffering which

no one suggests would serve any penological purpose.” Id. at 857 (internal

quotation marks and citation omitted). It applies to “prison doctors” just

as much as to “prison guards.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).

On this issue, Zaragoza again argues, not that the defendants failed to

carry their initial summary-judgment burden but, rather, that his own

evidence presents triable issues of fact. He claims there is evidence to

show the doctors refused to prescribe and provide him a safe alternative

to Synthroid despite knowing the harm it was causing. The doctors

contend that they did not display the necessary level of deliberate

indifference to Zaragoza’s medical needs. Rather, they argue, their care

decisions reflected at least a minimal degree of medical judgment.

We first survey the applicable law. Then, taking each defendant doctor

in turn, we again agree with Zaragoza that factual disputes remain.

A. The deliberate-indifference standard.

A plaintiff seeking relief on a deliberate-indifference claim must prove

two elements. First is the objective element of a “sufficiently serious”

medical need—one that “has been diagnosed by a physician as mandating

treatment” or one “so obvious that even a lay person would perceive the

need for a doctor’s attention.” Elyea, 631 F.3d at 857 (internal quotation

marks and citation omitted). A medical condition that “significantly

affects an individual’s daily activities” or “the existence of chronic and

substantial pain” qualify as sufficiently severe. Gutierrez v. Peters, 111 F.3d

1364, 1373 (7th Cir. 1997) (internal quotation marks and citation omitted).

Second, a plaintiff must prove the subjective element of a “sufficiently

culpable state of mind”—meaning “the defendants knew of a substantial

risk of harm to the inmate and disregarded the risk.” Elyea, 631 F.3d at 857

(internal quotation marks and citations omitted). This is a high bar.

Medical professionals are “entitled to deference in treatment decisions

unless no minimally competent professional” would have done the same.

Id. (internal quotation marks and citation omitted). To violate the

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constitution, the decision must mark “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. (internal quotation marks and citation omitted). Inmates

are “not entitled to the best care possible.” Arnett v. Webster, 658 F.3d 742,

754 (7th Cir. 2011) (citation omitted). And “administrative convenience

and cost” may be appropriately weighed—but not “to the exclusion of

reasonable medical judgment about inmate health.” Elyea, 631 F.3d at 863

(citation omitted).

Greeno v. Daley is an instructive case finding triable Eight Amendment

claims based on the alleged failure to provide effective treatment. See 414

F.3d 645 (7th Cir. 2005). In that case, the plaintiff claimed that prison

officials did not adequately treat his vomiting and heartburn. Id. at 648.

On summary judgment, the evidence favorable to the plaintiff showed

that the drugs prescribed were ineffective in controlling his symptoms. Id.

at 649. The plaintiff took painkillers after a fall, but these aggravated the

condition of his esophagus. Id. Although a doctor promised an alternative

painkiller, it was never given. Id. Nor did officials permit the plaintiff a

bland diet. Id. He went without adequate treatment for over two years. Id.

at 649–50. One nurse told him he had to live with his condition. Id. at 650.

Finally, he was given ulcer medication and a bland diet, which worked. Id.

But then he was moved and the prescription temporarily discontinued. Id.

The Seventh Circuit Court of Appeals held that a factfinder could infer

that certain defendants exhibited an “obdurate refusal to alter” the

plaintiff’s course of treatment “despite his repeated reports that the

medication was not working.” Id. at 654. Summary judgment as to several

of the defendants was, therefore, improper. Id. at 658.

Somewhat similar is Berry v. Peterman, 604 F.3d 435 (7th Cir. 2010). In

that case, the plaintiff “developed a serious toothache” but the prison

doctor and nurse provided only “over-the-counter pain relievers” and

“refused to refer him to a dentist.” Id. at 437. The plaintiff’s evidence

indicated that the doctor “persisted in this course of treatment even after”

the painkillers proved “ineffective.” Id. at 439. She “never contacted a

dentist” for the apparent reason that the plaintiff was suffering “nothing

more urgent than unexplained severe pain.” Id. The Seventh Circuit

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decided that a jury could conclude that the doctor “knowingly adhered to

an easier method to treat Berry’s pain that she knew was not effective”

and found it “hard to imagine” she would have acted the same way if

“seeing a civilian patient.” Id. at 441.

By contrast, the appeals court in Zingg v. Groblewski affirmed summary

judgment for a medical director who had denied a request for a potent

immune-system drug to treat the plaintiff’s severe psoriasis. 907 F.3d 630,

633 (1st Cir. 2018). Applying the federal summary-judgment standard, 4

the court found “no evidence” that the director knew a less potent topical

medication “would not work,” or that he had intended the plaintiff to take

such medication on its own. Id. at 635–36. In any case, trying topical

medications before immune-system drugs, the court concluded, aligned

with the “treatment protocol.” Id. at 636–37. Therefore, the director’s

actions could not be interpreted as “exhibiting a deliberate intent to harm

or wanton disregard” for the plaintiff’s health. Id. at 637 (internal

quotation marks and citation omitted).

A closer case is Pyles v. Fahim, 771 F.3d 403 (7th Cir. 2014). In that case,

the plaintiff suffered back pain after a fall. Id. at 405–06. He was initially

hospitalized and given an MRI scan. Id. at 405. The plaintiff asserted that

the prison doctor had “refused to record the true nature” of his

complaints, send him for a second MRI, or refer him to a specialist. Id. at

407. Yet the doctor had adjusted his pain medication and medical staff had

suggested stretches that “partly relieved” his pain. Id. The Seventh Circuit

held that the decision to forego a second MRI was a question of medical

judgment and that the plaintiff’s back pain was “a common ailment” not

presenting any “potentially serious long-term medical issue” requiring

specialist care. Id. at 411–12. The doctor had prescribed new medications

and changed the dosages in response to the plaintiff’s pain, which was

“not blatantly inappropriate” treatment. Id. at 412.

4Unlike in Indiana courts, “federal practice permits the moving party to merely show that the

party carrying the burden of proof lacks evidence on a necessary element.” Hughley, 15 N.E.3d

at 1003 (citation omitted).

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For our purposes, the critical point illustrated by the cases is as follows:

Professional decisions based on medical judgment and the facts as the

professional knows them do not constitute deliberate indifference. And a

doctor does not have to comply with an inmate’s requests for certain

forms of care. But a “prison physician cannot simply continue with a

course of treatment that he knows is ineffective in treating the inmate’s

condition.” Arnett, 658 F.3d at 754 (citation omitted).

B. There is some evidence of deliberate indifference by

each doctor.

We now apply the law we have surveyed to the designated evidence in

this case. We find disputes that preclude the award of summary judgment

to any of the three doctors.

1. Dr. Byrd.

Dr. Byrd argues that the evidence shows he rendered at least minimally

professional care in that he assessed Zaragoza, adjusted his Synthroid

dosage, prescribed Neurontin for pain relief, and ordered lab tests after

Zaragoza reported “dramatic side effects.” App. Vol. II, p. 110. He states

that Synthroid is an appropriate medication for hypothyroidism and that

“there was no clinical reason” to believe Zaragoza was experiencing “any

severe adverse reactions” to warrant a change of medication. Appellees’

Br. at 19. Rather, he opines, it may have been Zaragoza’s failure to take

Synthroid as prescribed that caused him harm.

Zaragoza’s designated evidence conflicts with Dr. Byrd’s opinion. He

presented his own affidavit stating that at “every visit” with all three

defendant doctors he “always relayed” the “timing and severity level” of

the “severe adverse effects” he had from Synthroid, including “severe

headaches, neck pains, neck tightness, muscle pains, blurred vision, hip

pains and cognitive problems.” App. Vol. III, p. 14. Dr. Schultheis states in

his affidavit that Dr. Byrd was “fully aware” of the “adverse effects and

harm” Synthroid was causing Zaragoza, yet “disregarded” them. App.

Vol. II, p. 202. There is also evidence that Dr. Byrd knew of alternative

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drugs, even if none were listed in the DOC’s formulary. He “wonder[ed] if

Cytomel [was] more appropriate” in a lab-test request form. Id. at 223.

And, according to Zaragoza, Dr. Byrd said he would have prescribed

Armour Thyroid in a private-practice context because this alternative

drug had helped somebody he knew with similar issues. Dr. Schultheis

explained that Armour Thyroid is “often used successfully in patients

who present with allergic reactions to Synthroid,” although it requires

“additional blood work to be done on a regular basis,” whereas Synthroid

is “cheaper and easier.” Id. at 200. Lastly, Zaragoza stated that he took

Synthroid as prescribed “every day” while he was on Neurontin but still

suffered adverse effects. App. Vol. III, p. 182.

Drawing all inferences and resolving all doubts in favor of Zaragoza, a

factfinder could infer that Dr. Byrd acted contrary to his professional

judgment by failing to prescribe an alternative drug that he knew might

treat Zaragoza’s hypothyroidism without the severe effects of the cheaper

and easier Synthroid. This would amount to deliberate indifference to

serious medical need.

2. Dr. West-Denning.

Dr. West-Denning argues that she provided treatment in line with her

medical judgment. She states that Zaragoza did not comply with his

Synthroid prescription and that she warned him he would feel better if he

took it properly. And she explains that she sought a “second opinion”

about prescribing Armour Thyroid instead, but “medical leadership”

deemed it “inappropriate” and “not aligned with standard medical

practice.” Appellees’ Br. at 21.

However, other evidence suggests at least two possible grounds for

deliberate indifference. Dr. Schultheis states, based on discussions with

Zaragoza, that Dr. West-Denning advised him to take seven days’ worth

of Synthroid in one go so he “would only have to suffer the severe adverse

effects” once a week. App. Vol. II, p. 206. In Dr. Schultheis’s opinion, Dr.

West-Denning did this “despite knowing the dangers,” namely the serious

adverse effects that even a “low dose” had previously led to. Id. Zaragoza

recalls Dr. West-Denning describing his ensuing reaction as “extreme.”

Indiana Supreme Court | Case No. 23S-CT-99 | January 25, 2024 Page 15 of 18

App. Vol. III, p. 17. This could be interpreted as blatantly inappropriate

care and disregard of a substantial risk of harm.

Dr. Schultheis also infers from the records that Dr. West-Denning

prescribed Tirosint, another potential alternative medication, although

Zaragoza never received it. This would imply that Dr. West-Denning was

aware of this potentially safer alternative to Synthroid. Yet she continued

Zaragoza on Synthroid afterwards. Dr. West-Denning denies having

ordered Tirosint, but it is not our place to determine the truth of this

dispute. A factfinder could infer that Dr. West-Denning acted contrary to

her professional judgment by knowingly and unnecessarily prescribing a

harmful medication.

3. Dr. Rajoli.

Dr. Rajoli argues that Zaragoza has shown nothing more than

“dissatisfaction or disagreement” with his course of care. Appellees’ Br. at

23 (internal quotation marks and citation omitted). He asserts that he

prescribed Tirosint but Zaragoza refused to take it. He explains that, later

on, he prescribed Synthroid and recommended waiting for a clinical

response, but Zaragoza refused that too. According to Dr. Rajoli, Zaragoza

stopped complaining about his hypothyroidism and so he planned simply

to monitor hormone levels.

Once more, Zaragoza’s evidence contradicts the doctor’s opinion.

Zaragoza states that Dr. Rajoli discussed with him the use of Tironsint for

people with allergies, but he was still only offered Synthroid. Dr.

Schultheis agrees that Zaragoza was not given Tirosint and concludes that

Dr. Rajoli refused to treat his hypothyroidism with an alternative

medication. Indeed, Dr. Schultheis’s opinion is that Dr. Rajoli “made little

or no effort to treat” Zaragoza, “not even mentioning” his hypothyroidism

“in most of the medical records” and giving little attention to “adverse

effects” or “requests for alternate treatment.” App. Vol. II, p. 207.

A factfinder could infer that Dr. Rajoli knew about Tirosint but failed to

supply Zaragoza the alternative drug in place of Synthroid. If Dr.

Schultheis is right, Dr. Rajoli left Zaragoza in an untreated condition.

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Resolving doubts in Zaragoza’s favor, we again find a triable issue as to

deliberate indifference.

* * *

There is some evidence that each doctor offered Synthroid as the only

option for Zaragoza to treat his hypothyroidism, despite knowing of its

adverse effects and potentially safer alternatives. This is not, therefore, a

case like Zingg, where the medical director was unaware that a generally

accepted mode of treatment was ineffective for the plaintiff. Nor can we

feel assured, like the Pyles court, that the care given was appropriate in the

circumstances. Rather, as in Greeno, a factfinder could interpret the

evidence as showing an “obdurate refusal” to move on from a plainly

inadequate medication, leaving Zaragoza to choose between the

intolerable side effects of the drug and untreated hypothyroidism—a

diagnosed condition that all three doctors evidently thought warranted

treatment on prescription. And we are concerned that, as in Berry, an

inmate may have been denied a basic standard of care that a civilian could

expect to receive. Given this possibility, we are persuaded that Zaragoza

has met his burden to show a genuine issue for trial.

Conclusion

Summary judgment is not a summary trial. Hence, we do not decide

today whether the parties’ claims or defenses are persuasive. We hold,

simply, that genuine issues of material fact remain to be determined.

Zaragoza’s evidence raises questions that can only be answered by a

factfinder after a trial. Accordingly, the summary judgment entered by the

trial court is reversed.

Rush, C.J., and Massa, Slaughter, and Molter, JJ., concur.

Indiana Supreme Court | Case No. 23S-CT-99 | January 25, 2024 Page 17 of 18

ATTORNEY FOR APPELLANT

Brian A. Karle

Ball Eggleston, PC

Lafayette, Indiana

ATTORNEY FOR APPELLEES

Rachel D. Johnson

Stoll Keenon Ogden PLLC

Indianapolis, Indiana

Indiana Supreme Court | Case No. 23S-CT-99 | January 25, 2024 Page 18 of 18