Maurice Shaw v. Wexford Health Sources, Inc. ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 29, 2019 *
Decided August 29, 2019
Before
DIANE P. WOOD, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 17-2848
MAURICE SHAW, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 13-cv-09335
WEXFORD HEALTH SOURCES, INC.,
et al., Sharon Johnson Coleman,
Defendants-Appellees. Judge.
ORDER
Maurice Shaw, an Illinois inmate, asserts that a prison medical doctor delayed
treating his injured shoulder with physical therapy, in violation of the Eighth
Amendment. See 42 U.S.C. § 1983. The district court entered summary judgment for the
doctor, concluding that Shaw lacked evidence showing that the treatment he received
departed from accepted medical standards or that the doctor was responsible for the
delay. We affirm.
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 17-2848 Page 2
Shaw hurt his shoulders while bench pressing in the prison yard in 2010. Because
both shoulders could not be treated at the same time, Shaw sought treatment first for
his left shoulder and wore a protective sling. He then sought treatment for his right
shoulder in February 2012. He was referred to the University of Illinois at Chicago for
an assessment. An MRI taken in May revealed a partial tear in his right rotator cuff, and
an orthopedic surgeon at UIC recommended that Shaw undergo four months of
physical therapy.
A Wexford staff physician at the prison approved the recommendation and
forwarded it to the prison’s Medical Records Department with instructions to send it to
the Physical Therapy Department. A month passed with no word about the physical
therapy. Shaw then filed a grievance describing the MRI results and the
recommendation for physical therapy. In September, the grievance officer denied his
grievance, explaining that Shaw’s medical file contained no order specifying that he
should receive physical therapy.
That same month, the prison medical director, Dr. Saleh Obaisi, evaluated Shaw
for the first time. Dr. Obaisi examined Shaw’s right shoulder, reviewed the MRI results,
and diagnosed tendinosis. He offered Shaw a steroid injection to reduce pain and
inflammation.
By March 2013, Shaw had yet to receive physical therapy, so he filed another
grievance. He met with a physician’s assistant and showed her copies of his MRI results
and the recommendation for physical therapy. She then ordered physical therapy and
wrote that it be done “ASAP.” Still no therapy took place.
The next month Shaw met again with Dr. Obaisi, who charted a plan for physical
therapy and referred him to the Physical Therapy Department. The doctor also referred
Shaw back to the UIC orthopedic clinic for a follow-up visit.
In August, Dr. Obaisi examined Shaw a third time, gave him another steroid
injection, prescribed two medications for inflammation and pain, and ordered an x-ray
of his right shoulder. About a week later, Shaw finally began physical therapy.
No. 17-2848 Page 3
Shaw sued Dr. Obaisi 1 for being deliberately indifferent to his pain and need for
physical therapy. The district court entered summary judgment for the doctor,
concluding that Shaw’s medical need was serious, but no evidence in the record
reflected that Dr. Obaisi had acted with deliberate indifference. According to the court,
there was no evidence that Dr. Obaisi was personally responsible for any delays or that
his prescribed treatment regimen departed from accepted medical standards.
On appeal, Shaw first argues that a material dispute exists over whether
Dr. Obaisi acted with deliberate indifference by delaying the implementation of the
orthopedic surgeon’s physical-therapy recommendation for 14 months. Dr. Obaisi must
have known about the recommendation, Shaw insists, because he reviewed the MRI at
their first meeting in September 2012.
Shaw, however, has not put forth evidence that Dr. Obaisi knew about the
recommendation or refused to refer him for physical therapy. To establish deliberate
indifference, Shaw had to put forth evidence from which a jury could find that
Dr. Obaisi knew of and recklessly disregarded a serious health concern, for which the
doctor was personally responsible. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Arnett
v. Webster, 658 F.3d 742, 755–57 (7th Cir. 2011). The record shows that Dr. Obaisi learned
of the recommendation for therapy at Shaw’s second evaluation in April 2013. At that
time, Dr. Obaisi referred Shaw to the prison’s Physical Therapy Department as well as
to the orthopedic surgeon for a follow-up visit. Although another four months passed
before Shaw received physical therapy, he has not presented evidence that this delay
can be imputed to Dr. Obaisi. See Arnett, 658 F.3d at 757. To the extent that Shaw faults
Dr. Obaisi for missing the recommendation for physical therapy in his medical file, such
an oversight may amount to negligence but cannot establish deliberate indifference. See
id. at 758 (doctor’s failure to inquire about delay in receiving prescribed medication for
rheumatoid arthritis, despite patient’s repeated requests, may reflect negligence but not
deliberate indifference).
1
Dr. Obaisi is now deceased and Ghaliah Obaisi, the Independent Executor of the Estate
of Saleh Obaisi, is substituted as a party in this case. Shaw also sued a host of other
defendants—a grievance officer, several medical directors, a healthcare administrator,
the prison’s medical-services contractor, and two wardens—but he does not contest the
district court’s entry of summary judgment in their favor, so we say nothing more about
these defendants here.
No. 17-2848 Page 4
Shaw next maintains that there is a genuine issue of fact about whether
Dr. Obaisi’s initial course of treatment—steroid injections and anti-inflammatory
medication—substantially departed from accepted medical judgment. A substantial
departure in care may amount to deliberate indifference. See Sain v. Wood, 512 F.3d 886,
894–95 (7th Cir. 2008). Shaw relies on the expert report of Dr. Mitchell Sheinkop, an
orthopedic surgeon, who opined that the standard treatment for rotator cuff-related
symptoms is physical therapy.
Dr. Sheinkop’s report, however, fails to substantiate how Dr. Obaisi’s initial
treatment departed from accepted medical judgment. Dr. Sheinkop asserted that
therapy is the standard of care, but he said nothing about why that is, or support his
conclusion with any reference to medical sources. Indeed, elsewhere in the report,
Dr. Sheinkop suggested the contrary: he noted that patients with partial tears in their
rotator cuff can be treated with “exercise and/or non-steroidal anti-inflammatory
drugs.” An article he attached to his report even highlighted that “[a]nti-inflammatory
medication, steroid injections, and physical therapy may all be of benefit in treating
symptoms of a cuff tear.” An expert’s unsupported speculation about an ultimate issue
of fact is insufficient to avoid summary judgment. See Ennenga v. Starns, 677 F.3d 766,
781 (7th Cir. 2012); see also Bourke v. Conger, 639 F.3d 344, 347 (7th Cir. 2011) (“[A]n
expert report that lacks foundation and depth will be given little consideration by
courts.”). Dr. Sheinkop’s report fails to raise a genuine fact question about whether
Dr. Obaisi’s initial treatment of steroid injections and anti-inflammatory medicine
departed from accepted medical judgment.
AFFIRMED