# Edward Zaragoza v. Wexford of Indiana, LLC

> Indiana Supreme Court · January 25, 2024

URL: https://www.frixlaw.com/law-library/cases/9926752

## Case

- **Court:** Indiana Supreme Court
- **Decided:** January 25, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9926752

## How later opinions describe it (automated extraction)

- 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
- explaining that “the admissibility of expert testimony does not hinge on the expert’s disclosure of the facts and reasoning that support his opinion”

## Opinion text

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.

Indiana Supreme Court | Case No. 23S-CT-99 | January 25, 2024 Page 2 of 18
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

Indiana Supreme Court | Case No. 23S-CT-99 | January 25, 2024 Page 3 of 18
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).

Indiana Supreme Court | Case No. 23S-CT-99 | January 25, 2024 Page 8 of 18
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.

Indiana Supreme Court | Case No. 23S-CT-99 | January 25, 2024 Page 16 of 18
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9926752. Public record. Not legal advice.