George Walker v. Wexford Health Sources, Inc. ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2821
GEORGE WALKER,
Plaintiff-Appellant,
v.
WEXFORD HEALTH SOURCES, INC., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13-cv-07237 — Sharon Johnson Coleman, Judge.
____________________
ARGUED SEPTEMBER 6, 2019 — DECIDED OCTOBER 15, 2019
____________________
Before FLAUM, SYKES, and ST. EVE, Circuit Judges.
FLAUM, Circuit Judge. George Walker is an inmate at State-
ville Correctional Center. He has an incurable motor neuron
disease called primary lateral sclerosis (“PLS”) that causes
weakness in his voluntary muscles. Walker alleges that his
healthcare providers at Stateville—Wexford Health Sources
and Dr. Saleh Obaisi—were deliberately indifferent to his
medical needs after he underwent spinal surgery in March
2 No. 17-2821
2011.1 Specifically, Walker alleges defendants failed to: (1) en-
sure he received proper follow-up care after his surgery, and
(2) allowed undue delays in his treatment by outside experts.
Defendants’ failures, he asserts, delayed his diagnosis and
caused him to suffer from the undiagnosed PLS in the interim.
Defendants successfully moved for summary judgment on all
of Walker’s claims. We affirm.
I. Background
During the relevant period, the State of Illinois subcon-
tracted with Wexford Health Sources to provide healthcare
services to inmates at all the facilities managed by the Illinois
Department of Corrections (“IDOC”). Saleh Obaisi, M.D., was
a Wexford employee who served as Stateville’s Medical Di-
rector from August 2012 until his death in December 2017.
A. Healthcare at Stateville
Stateville’s onsite healthcare facilities included an urgent
care center, various medical clinics, and an infirmary. The
physicians, nurse practitioners, and physician’s assistants at
Stateville were Wexford employees; the nurses and other
medical personnel were a mix of Wexford and IDOC employ-
ees. All the medical providers at Stateville, whether employed
by Wexford or not, followed IDOC’s administrative policies
and procedures. Nonetheless, Wexford’s corporate repre-
sentative testified that when deciding how to provide the best
care for patients, clinicians relied on their training and expe-
rience first, and the governing policies second.
1Originally, Warden Michael Lemke was a defendant, but the parties
agreed to dismiss him from the case.
No. 17-2821 3
When the medical professionals and facilities at Stateville
could not address an inmate’s conditions, Wexford referred
such inmates to outside providers like the University of Illi-
nois at Chicago Medical Center (“UIC”). Typically, referrals
had to go through a collegial peer review process, which Wex-
ford called “Utilization Management” (“UM”). In the event of
a medical emergency, however, Stateville’s Medical Director
could make referrals to another hospital, St. Joseph’s Medical
Center, without securing UM’s preapproval.
In practice, UM consisted of a weekly conference call in
which medical professionals reviewed an inmate’s case and
the suggested treatment. Participants in the call included:
Wexford’s UM Director for Illinois, Wexford’s Corporate UM
nurse, Wexford physicians, Wexford staff, and IDOC’s
healthcare unit administrator. If the onsite Medical Director
was ever dissatisfied with the alternative treatment plan UM
authorized for a patient, the director could appeal that deci-
sion.
If UM approved a patient for an offsite consultation at
UIC, the UM department would enter the information into
Wexford’s computer program (“WexCare”), which triggered
an electronic notice to the prison and UIC. Then, the staff at
IDOC and UIC would coordinate to schedule the inmate’s ap-
pointment. With respect to surgery referrals, UM often issued
a “global approval,” which authorized both the surgery and
any necessary follow-up care. Whenever UIC received a
global approval, it would call Stateville directly to arrange the
follow-up care for the inmate.
UM’s authorizations were valid for ninety days. From
2011 to 2014, however, Wexford did not have a system in place
4 No. 17-2821
to alert its staff when an authorization expired before the in-
mate had received treatment.2
B. Walker’s Treatment History at Stateville
On March 1, 2010, a Wexford physician’s assistant exam-
ined Walker, noting that he had right leg twitching and re-
ports of weakness. Over the course of the next year, Walker
underwent several examinations with specialists and other
medical professionals. These appointments culminated in a
recommendation by a UIC neurosurgeon, Dr. Sergey
Neckrysh, that Walker have spinal surgery to decompress and
fuse the lumbar spine. UM gave a global approval for the sur-
gery and follow-up care.
Walker had spinal surgery at UIC on March 23, 2011. He
remained at UIC for three days following his surgery. When
he returned to Stateville, the infirmary admitted him; his dis-
charge note from UIC called for a follow-up appointment
with Dr. Neckrysh in three months, including a CT scan of the
lumbar spine. Walker testified that three UIC nurses told him
they would see him in six to eight weeks for a follow-up CT
scan. The follow-up appointment never occurred. It was the
first of many delays that prompted Walker to bring this law-
suit. As Walker testified, “it’s been all down hill ever since the
surgery.” Walker also testified, however, that none of his
treating doctors have ever told him that his condition would
2 Fortunately, Wexford has since eliminated this vulnerability in its
system; it now requires doctors to enter a “service completion date” when
they authorize an outside referral, and whenever treatment does not occur
before that service completion date, the inmate’s case returns to UM for
discussion and potential reauthorization.
No. 17-2821 5
have improved if he had been sent back to UIC within three
months of his March 2011 surgery.
The medical records tell a more complicated story. During
Walker’s first three days at the infirmary, five treatment notes
recorded that his surgical incision was healing well. When the
infirmary staff removed Walker’s staples on April 7, 2011,
they cleaned the incision site and did not record any signs or
symptoms of redness or infection. Later that day, the infir-
mary discharged Walker, reporting his minimal discomfort
and giving him permits for low bunk, low gallery, and special
medical restraints.
Approximately four weeks after the surgery, Walker re-
ceived a physical therapy examination at Stateville. The ther-
apist stated that Walker explained that his pain had resolved,
and that the surgical scar was well-healed with minor adhe-
sion (excessive growth of scar tissue). Between May 26, 2011,
and August 31, 2012, the record shows that Walker saw Stat-
eville medical providers on eight different occasions and that
he informed them of the improvement to his back following
the surgery. Walker also completed two eight-week courses
of physical therapy with an onsite provider at Stateville. He
then did sixteen months of physical therapy in his cell. During
Walker’s deposition, defendants’ lawyer asked: “Did your
condition improve at all through the physical therapy?”
Walker responded: “It seemed like after the physical therapy
I would become more irritated and when I was let out of my
cell to take a shower I fall flat on my face. I couldn’t walk. The
irritation was just so tight.” The timing and nature of this irri-
tation, however, is unclear from Walker’s testimony.
Dr. Obaisi first examined Walker on September 26, 2012,
almost exactly eighteen months after Walker’s surgery. He
6 No. 17-2821
documented that Walker complained of an unsteady gait,
weakness in his legs, upper thigh pain, and bilateral foot
drop. Dr. Obaisi’s appointment note also stated that he sus-
pected that Walker might have upper motor neuron syn-
drome. As a result, Dr. Obaisi ordered x-rays and provided
Walker with muscle relaxers and anti-inflammatory medica-
tion. Once Dr. Obaisi received the results from one of the
blood tests and learned that Walker’s levels were elevated, Dr.
Obaisi sought UM’s approval for a neurology consultation at
UIC. Wexford approved the referral on December 2, 2012, but
UIC did not schedule a neurology appointment until April 24,
2013.
At his deposition, Dr. Obaisi testified that his focus during
this initial visit was Walker’s condition; he did not “really pay
attention” to whether Walker had seen UIC neurosurgery for
his post-surgery visit. Nonetheless, when Walker’s attorney
specifically asked Dr. Obaisi why he did not send Walker back
to UIC neurosurgery for the follow-up, Dr. Obaisi explained
he wanted to see the results from some tests before presenting
Walker’s case to UM—this way, Dr. Obaisi could support his
concern regarding upper motor neuron syndrome. He also
testified that he did not have control over UIC’s scheduling,
that specialists generally prioritize scheduling by the urgency
of cases, and that Dr. Neckrysh does not call people “very eas-
ily.”
Walker continued to receive treatment from Dr. Obaisi
and several other medical professionals. A summary of this
later treatment appears below in chronological order.
 On April 9, 2013, Dr. Obaisi examined Walker for
swelling in his right leg that had persisted for two
weeks. Concerned that Walker was developing a
No. 17-2821 7
blood clot in one of his veins, Dr. Obaisi transferred
Walker to St. Joseph on an emergency basis. The
hospital’s discharge notes state that Walker needed
a repeat ultrasound of the right leg in one week to
check for a blood clot.
 On April 24, 2013, Walker was transferred offsite to
UIC neurology; he told Dr. Lawrence Zeidman that
his back “was not bothering him much,” that he
had pain in his legs and groin, but that he did not
want any medication. Dr. Zeidman requested a re-
peat MRI of the lumbar spine, an imaging test of the
right lower extremity to rule out a myelopathy3
given his blood test, and a rereferral to neurosur-
gery.4
 On May 23, 2013, Walker received an MRI that
showed some degenerative changes to his L3-L4
spinal segments.
3 “Myelopathy is an injury to the spinal cord due to severe compres-
sion that may result from trauma, congenital stenosis, degenerative dis-
ease or disc herniation.” Myelopathy, John Hopkins Medicine,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/mye-
lopathy (last visited Oct. 15, 2019).
4 Dr. Zeidman testified that his recommendations for further treat-
ment are always directed at the referring physician—regardless of
whether the patient is an inmate or not—and “it’s optional to the prerog-
ative of the referring doctor whether they even want to follow the recom-
mendations.”
8 No. 17-2821
 On May 28, 2013, Walker had a neurosurgery con-
sultation at UIC. The examining neurosurgeon ob-
served that Walker’s back pain and radiculopathy5
symptoms had improved, but that he had “right in-
guinal [(i.e., groin)] pain.” As a result, the doctor
recommended an x-ray of the lumbar spine. An x-
ray was taken that same day; the impression note
states: “Postsurgical changes with posterior spinal
fusion from L4 to S1. There is a suggestion of lu-
cency around the bilateral S1 screws suggesting
hardware loosening.”
 On September 25, 2013, Dr. Zeidman examined
Walker, noting Walker was now in a wheelchair
and complaining of radiculopathy. Dr. Zeidman
further documented Walker’s May 2013 MRI iden-
tified a loose surgical screw at his S1 vertebrae, but
that UIC’s neurosurgery team, who had seen
Walker after the MRI, did not seem concerned
about it. Dr. Zeidman recommended reconsulting
with UIC’s neurosurgery team about the screw,
and having Walker receive another MRI due to his
presentment of a new symptom: brisk reflexes in
his ankle, and a referral to the UIC pain clinic for a
potential epidural steroid injection.
 On March 27, 2014, Dr. Zeidman examined Walker,
noting that the neurosurgery follow-up and pain
5 “Radiculopathy describes a range of symptoms produced by the
pinching of a nerve root in the spinal column.” Radiculopathy, John Hop-
kins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-
diseases/radiculopathy (last visited Oct. 15, 2019).
No. 17-2821 9
consult he had recommended had not been done.6
(Dr. Zeidman believed the recommended cervical
and thoracic MRI repeat had occurred, but that the
images had not been sent to him.) Accordingly,
Dr. Zeidman again referred Mr. Walker to neuro-
surgery and the pain clinic. Additionally, Dr. Zeid-
man’s notes state that Walker reported that one of
his medications (gabapentin) was improving his
pain but that he did not feel he was getting enough
physical therapy in prison.
 On October 20, 2014, Walker received an MRI of his
cervical spine, which showed some degenerative
joint disease.
 On October 30, 2014, Walker received an evaluation
at UIC’s pain clinic for his back and hip pain. Notes
from that visit show that Walker reported he vol-
untarily stopped taking pain medications because
he felt they made him constipated. The UIC pain
physicians instructed Walker to resume taking the
pain medications and advised him they were con-
sidering giving him an epidural steroid injection.
 On November 6, 2014, Walker received a thoracic
spine MRI. The UIC radiologist found that that MRI
was similar to Walker’s 2011 (pre-surgery) MRI be-
cause both showed degenerative disc disease in his
back.
6 Dr. Zeidman testified that he does not know how scheduling works
with IDOC, Wexford, and UIC. He also opined that he did not think it
would be “unreasonable” for it to take “a couple months” for an inmate
to get an appointment with him.
10 No. 17-2821
 On January 8, 2015, Walker returned to UIC neurol-
ogy and reported continued back pain and that
switching prescriptions (from gabapentin to Mo-
bic) had helped his pain. Dr. Zeidman reviewed
Walker’s MRI and found that it showed degenera-
tive joint disease but no neural compromise. It was
Dr. Zeidman’s impression that Walker may have
had a stroke before the visit. Dr. Zeidman grew
concerned that Walker had started slurring his
speech and jerking his hands and fingers. Again,
Dr. Zeidman noted that despite his referrals,
Walker had not been sent to neurosurgery. Accord-
ingly, he issued another referral to neurosurgery.
He also asked to see Walker again in six months,
and he advised Walker to continue with physical
therapy and keep taking his pain medications.
 On February 3, 2015, Walker went to UIC neurosur-
gery for a consultation; the neurosurgeon found
Walker had radiculopathy in the left leg and recom-
mended a CT myelogram7 to delineate any possible
neurosurgical issues at the lumbar spine.
 On March 27, 2015, Walker received an MRI of his
brain that showed nonspecific scattered flare
changes but was otherwise unremarkable and
showed no acute or subacute stroke.
7 “A myelogram is a diagnostic imaging test generally done by a radi-
ologist. It uses a contrast dye and X-rays or computed tomography (CT)
to look for problems in the spinal canal.” Myelogram, John Hopkins Medi-
cine, https://www.hopkinsmedicine.org/health/treatment-tests-and-ther-
apies/myelogram (last visited Oct. 15, 2019).
No. 17-2821 11
 On May 28, 2015, Walker underwent a CT myelo-
gram.
 On July 1, 2015, Walker returned to UIC neurology
for a consultation. Dr. Zeidman noted that Walker
demonstrated problems with “word-finding.”
Dr. Zeidman concluded that Mr. Walker needed
“to see Dr. Neckrysh again given his ongoing lum-
bar radiculopathy issues.” He also recommended a
speech therapy consultation and that Walker con-
tinue taking pain medications and doing physical
therapy onsite at Stateville.
 On August 11, 2015, Walker received an x-ray that
showed “no definitive evidence of hardware mal-
function” regarding the screw. He also had a con-
sultation with UIC neurosurgery; Dr. Neckrysh
concluded that Walker’s May 2015 myelogram
showed evidence of adjacent segment degeneration
at L3-4 and a grade 1 spine at L3-4, and he proposed
extending Walker’s prior surgery “up to the L-3-4
level.”8
 On December 22, 2015, Walker returned to UIC
neurosurgery for an evaluation; the neurosurgeon
confirmed the 2011 surgery was effective and that
Walker did not complain of pain and weakness in
8Dr. Obaisi testified that he is typically inclined to follow UIC neuro-
surgery’s recommendations; specifically, in Walker’s case, Dr. Obaisi was
happy to acquiesce to the surgery extension recommendation, though he
did not believe it would affect Walker’s speech or any of the other prob-
lems Dr. Obaisi believed were caused by an issue with Walker’s nervous
system.
12 No. 17-2821
his legs for two years after the surgery.9 But be-
cause of Walker’s left-sided thigh pain, UIC neuro-
surgery recommended a revision and extension of
the 2011 spinal fusion to correct these newly-occur-
ring (as of 2015) complaints.
 On March 30, 2016, Walker received the revision
and extension spinal fusion surgery at UIC. Before
his discharge, UIC physical therapy noted that
there were “signs and symptoms of [upper motor
neuron] involvement,” and that “[his] gait will
likely remain with current impairments unless
other means for spasticity/clonus are utilized.” The
post-surgery notes state that Walker reported
“much improvement in ‘nerve’ pain in both legs”
and a reduced amount of “drooling.”
 While Walker remained at UIC following his sec-
ond spinal surgery, UIC’s medical staff diagnosed
him with PLS. During this time, Walker also con-
sulted with UIC speech and psychology staff re-
garding his diagnosis and what that meant for his
life going forward.
 On April 14, 2016, UIC discharged Walker.
C. Expert Opinions
Each of the parties retained medical experts. Walker hired
Nicholas Rizzo, M.D., who is board-certified in internal med-
9Walker admits that the medical notes state as much, but he disputes
the assertion that he did not complain of pain or weakness in his legs for
two years after surgery and only complained of left-sided thigh pain start-
ing in 2015. As Walker testified, he asserts that he experienced pain almost
immediately after his March 2011 surgery.
No. 17-2821 13
icine. He has neither worked in a prison or correctional insti-
tution, nor has he treated inmate populations. He provided
the following opinions: (1) Wexford and Dr. Obaisi failed to
follow the order for a three-month post-operative follow-up
with the UIC neurosurgeon after Walker’s March 23, 2011 sur-
gery; (2) Walker’s condition deteriorated as a result of not be-
ing seen by the neurosurgeon for two years following his
March 2011 surgery; (3) there was a lack of routine physical
therapy; (4) Walker suffered additional pain as a result of not
being treated in an appropriate and timely fashion; (5) Wex-
ford’s Medical Director at Stateville should have ensured that
Walker received timely and adequate treatment; and (6) Wex-
ford should have had a procedure in place to ensure that or-
ders for follow-up care were followed. Dr. Rizzo also gave the
following relevant testimony:
 The March 2011 surgery “was likely successful for
its goal at the time.”
 The three-month post-surgery visit was not op-
tional; it was (and is) the “standard of care” and it
should have been done by UIC neurosurgery. At
that appointment, a few hypothetical scenarios
could have played out: (1) “If there was new symp-
tomatology …, they would have ordered additional
imaging”; (2) “If … his progress postoperatively
was not what they would have otherwise antici-
pated, they could have ordered a subsequent three-
month follow-up which would have obviously in-
creased the chance of picking up progressive symp-
tomatology”; (3) “If he had a perfect recovery from
the surgery and no symptomatology whatsoever
and no progression of symptoms, they may have
dismissed him from their care for that particular
14 No. 17-2821
surgery”; and (4) “If [his recovery was not perfect],
a continuity of care for lumbar disk disease in gen-
eral would have not been unreasonable.”
 When asked whether it was his opinion that
Walker’s condition was going to deteriorate after
his March 2011 surgery, regardless of whether
Walker had had the three-month post-surgery fol-
low-up visit, Dr. Rizzo said: “There’s no way to
know if most patients are going to progress and de-
teriorate or not.”
Wexford employed William Davison, M.D., who is a
board-certified neurologist. He provided the following rele-
vant testimony:
 Walker’s condition deteriorated after his March
2011 surgery, but the lumbar surgery could “[a]bso-
lutely” be ruled out as the cause of that deteriora-
tion.
 Walker’s March 2011 surgery was a success because
the records suggest he had less pain going down his
right leg.
 The missed post-surgery appointment did not con-
stitute inadequate medical care because Walker’s
problems could not be solved by neurosurgery any-
way.
 The post-surgery follow-up visit was a recommen-
dation for the referring physician to consider.
 A few months was a reasonable amount of time to
wait before going back to neurosurgery.
 It was not inadequate medical treatment for de-
fendants not to refer Walker to the pain clinic be-
tween September 25, 2013, when Dr. Zeidman
No. 17-2821 15
made that recommendation, and March 27, 2014,
when Dr. Zeidman noted it had not yet occurred,
because Walker was being seen at his local clinic for
pain and was on medication.
Although not an expert, Neil Fisher, M.D., provided testi-
mony as Wexford’s designated Federal Rule of Civil Proce-
dure 30(b)(6) witness. At the time of his deposition, he served
as Wexford’s Corporate Medical Director for Quality Manage-
ment and Pharmacy. He previously served as Wexford’s Cor-
porate Director for UM from July 2012 until September 2014.
Dr. Fisher holds a medical degree and is a general medical
practitioner. He provided the following pertinent testimony:
 During this case, the WexCare system was able to
pull up a report of expired UM authorizations, but
he was not aware if there was a policy to pull that
report in 2011–2012.
 Wexford is “usually very good at getting people
back to [UIC] during the period of time that special-
ist is requesting” because “this is a no-charge ser-
vice for us so we—these are specialists that we par-
ticularly want to satisfy what they are asking for.”
D. This Lawsuit
The operative complaint in this case alleges that Dr. Obaisi
was deliberately indifferent to Walker’s serious medical needs
by (1) failing to timely return Walker to UIC after the March
2011 surgery and (2) generally ignoring the persistent delays
in Walker’s treatment after he assumed his care. Similarly,
Walker alleges that Wexford was deliberately indifferent to
his serious medical needs by (1) failing to promulgate a policy
16 No. 17-2821
to alert the Medical Director that a previously approved refer-
ral had lapsed before the authorized treatment came to frui-
tion and (2) relying on UIC doctors to schedule their own ap-
pointments with inmates.
Dr. Obaisi and Wexford moved for summary judgment on
all of Walker’s claims. They argued that Walker failed to ex-
haust his administrative remedies and that they were entitled
to judgment on the merits of Walker’s claims. The district
court agreed; it granted Dr. Obaisi and Wexford’s motion for
summary judgment after concluding: (1) the Prison Litigation
Reform Act’s exhaustion requirement barred Walker’s claims,
42 U.S.C. § 1997(e); (2) Dr. Obaisi was not working at the
prison during the relevant time when Walker wished to be
sent back to UIC for his three-month post-surgical neurosur-
gery follow-up appointment; (3) the totality of medical care
Dr. Obaisi provided to Walker did not support a finding of
deliberate indifference; (4) there was no testimony connecting
Walker’s condition to any failure by Dr. Obaisi; (5) some of
the delays Walker blamed on Wexford were actually caused
by UIC; and (6) there was no evidence that Wexford denied
any medical care that one of its medical directors requested
for Walker’s benefit or that any delay between appointments
with specialists at UIC caused Walker’s deteriorating condi-
tion; and (7) the only testimony about what could have been
done had Wexford personnel returned Walker to UIC for a
post-operative follow-up within three months of his 2011 sur-
gery was speculative, thus Walker could not establish the req-
uisite causal connection between Wexford’s allegedly uncon-
stitutional policies and practices, on the one hand, and his
medical condition, on the other.
No. 17-2821 17
Walker appeals the district court’s decision to enter sum-
mary judgment for Dr. Obaisi and Wexford.
II. Discussion
We review a district court’s grant of a motion for summary
judgment de novo, interpreting all facts and drawing all rea-
sonable inferences in favor of the nonmoving party. O’Brien
v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir. 2018). “Summary
judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a mat-
ter of law.” Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 673
(7th Cir. 2016) (citing Fed R. Civ. P. 56(a)). And summary
judgment is inappropriate “if the evidence is such that a rea-
sonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We may
affirm the grant of a motion for summary judgment on any
ground supported in the record, so long as the parties ade-
quately presented the issue in the district court and the non-
moving party had an opportunity to contest it. O’Brien, 900
F.3d at 928.
A. Dr. Obaisi
The Eighth Amendment prohibits deliberate indifference
to prisoners’ serious medical needs because it constitutes an
“unnecessary and wanton infliction of pain.” Estelle v. Gamble,
429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153,
173 (1976)). A failure-to-provide-adequate-medical-care claim
requires proof that the prisoner suffered from “(1) an objec-
tively serious medical condition to which (2) a state official
was deliberately, that is subjectively, indifferent.” Duckworth
v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). Defendants do not
18 No. 17-2821
dispute that Walker suffered from an objectively serious med-
ical condition; only the subjective component is at issue here.
To establish the subjective component, Walker must show
that Dr. Obaisi knew of facts from which he could infer that a
substantial risk of serious harm existed, and that he did, in
fact, draw that inference. See Farmer v. Brennan, 511 U.S. 825,
837 (1994); see also Petties v. Carter, 836 F.3d 722, 728 (7th Cir.
2016) (en banc). “[E]vidence of medical negligence is not
enough to prove deliberate indifference,” but evidence that a
medical professional “knew better than to make the medical
decision[ ] that [he] did” is enough to survive summary judg-
ment. Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662–
63 (7th Cir. 2016) (quoting Petties, 836 F.3d at 730–31).
In practice, “[s]tate-of-mind evidence sufficient to create a
jury question might include the obviousness of the risk from
a particular course of medical treatment; … persistence in a
course of treatment known to be ineffective; or proof that the
defendant’s treatment decision departed so radically from ac-
cepted professional judgment, practice, or standards that a
jury may reasonably infer that the decision was not based on
professional judgment.” Whiting, 839 F.3d at 663 (citations
and quotation marks omitted). In cases such as this one—
where the plaintiff alleges the defendant delayed, rather than
denied, medical treatment—we have required that the plain-
tiff present “verifying medical evidence” that the delay, and
not the underlying condition, caused some harm. Jackson v.
Pollion, 733 F.3d 786, 790 (7th Cir. 2013) (citing Williams v.
Liefer, 491 F.3d 710, 714–15 (7th Cir. 2007)). Most importantly,
the plaintiff must show that the defendant’s actions or inac-
tion caused the delay in his treatment. See Pepper v. Village of
Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (“Under any theory,
No. 17-2821 19
to be liable under § 1983, the individual defendant must have
caused or participated in a constitutional deprivation.” (cita-
tion and internal quotation marks omitted)).
Walker argues on appeal that Dr. Obaisi repeatedly failed
to ensure that he receive treatment within the timeline re-
quested by UIC specialists, and that this failure delayed the
ultimate PLS diagnosis and precluded alternative treatment
options in the interim. Walker also disputes the notion that
Dr. Obaisi was powerless to ensure timely offsite appoint-
ments.
In response, defendants argue that Dr. Obaisi had a prin-
cipled reason for not immediately making a referral, as he tes-
tified: He wanted to obtain and review Walker’s lab test re-
sults before presenting any follow-up care to UM for ap-
proval. Indeed, Dr. Obaisi ordered tests the day he first saw
Walker. Similarly, defendants highlight that Dr. Obaisi
treated Walker’s symptoms while they awaited the test results
and continued to treat Walker’s changing condition in a vari-
ety of ways as noted above. Thus, defendants assert that there
is no evidence that Dr. Obaisi did (or failed to do) something
that (1) postponed Walker’s treatment and thereby caused his
need for a second spinal surgery, (2) delayed the diagnosis or
treatment of Walker’s PLS or other symptoms, or (3) pro-
longed Walker’s pain. Finally, defendants emphasize that it is
undisputed that Dr. Obaisi could not schedule appointments
at UIC. Given Dr. Obaisi’s lack of personal involvement in
UIC scheduling, defendants insist that Dr. Obaisi cannot be
held liable.
First, we conclude that Dr. Obaisi’s decision to wait for test
results before referring Walker to UIC, even though Walker
was months overdue for a follow-up appointment at UIC, is
20 No. 17-2821
not evidence of Dr. Obaisi’s deliberate indifference. As
Dr. Obaisi testified, during his first appointment with Walker,
he was focused on Walker’s complaints—unsteady gait, occa-
sional falls, and weak legs—and his assessment that Walker
likely had either upper neuron syndrome or a muscle disor-
der. To rule out a muscle disorder, Dr. Obaisi requested blood
tests, and he explained that he wanted those results—as well
as x-ray images—before making a case to UM that Walker
should be referred to UIC.
Perhaps an immediate referral to UIC would have been
beneficial, but as we have held before, “an inmate is not enti-
tled to demand specific care,” Arnett v. Webster, 658 F.3d 742,
754 (7th Cir. 2011), and medical professionals may choose
from “a range of acceptable courses based on prevailing
standards in the field,” Jackson v. Kotter, 541 F.3d 688, 697 (7th
Cir. 2008). We defer to medical professionals’ treatment deci-
sions unless there is evidence that “no minimally competent
professional would have so responded under those circum-
stances.” Pyles, 771 F.3d at 409 (quoting Sain v. Wood, 512 F.3d
886, 894–95 (7th Cir. 2008)).
Here, Dr. Obaisi made a reasonable medical judgment to
delay referring Walker until he had more information so that
he could make a more informed referral request to UM. See,
e.g., Zackery v. Mesrobian, 299 F. App’x 598, 601–02 (7th Cir.
2008) (“Although it may have been prudent for Dr. Mesrobian
to order diagnostic testing in 2001, his failure to choose the
best course of action does not amount to a constitutional vio-
lation.”).
Second, considering Walker’s treatment overall, we believe
that the records do not show a pattern of deliberate indiffer-
ence to Walker’s serious medical needs. To the contrary, the
No. 17-2821 21
record shows that Dr. Obaisi responded to Walker’s changing
symptoms and that he was receptive to the specialists’ recom-
mendations. He made referrals and re-referrals when neces-
sary, all the while treating Walker’s symptoms. This treatment
was not outside the bounds of medical professionalism. See,
e.g., Harrison v. Wexford Health Sources, Inc., 669 F. App’x 797,
799 (7th Cir. 2016) (“During these 17 months [of treatment
without a referral], Dr. Obaisi regularly altered [the inmate’s]
prescriptions for pain-relieving, anti-inflammatory, and mus-
cle-relaxing drugs based on [the inmate’s] condition.
Dr. Obaisi also ordered and reviewed [the inmate’s] MRI to
ensure that he properly diagnosed his injury. Because the rec-
ord does not contain evidence showing that Dr. Obaisi’s care
violated professional medical standards, the district court
properly granted Dr. Obaisi summary judgment.”).
That Walker’s pain and other symptoms did not subside is
not evidence of Dr. Obaisi’s deliberate indifference, especially
considering that Walker voluntarily stopped taking pain
medication at some point and Dr. Obaisi ordered a variety of
therapies and requested several referrals to address Walker’s
ongoing complaints.
Third, although there were clearly delays in Walker’s treat-
ment, the evidence suggests Dr. Obaisi did what he could
within the limits of his role to move the ball forward. The
question is whether we can place all the scheduling blame on
UIC, because we can only hold Dr. Obaisi liable if he had con-
trol over the circumstances that caused the delays. See Walker
v. Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002).
Defendants have presented evidence that UIC employs a
prioritization scheme for scheduling appointments and that
22 No. 17-2821
Stateville’s Medical Director was not involved in the schedul-
ing process. Similarly, nothing in the record suggests that
Dr. Obaisi’s actions or inaction caused any of the scheduling
delays with Walker’s appointments at UIC. Such lack of per-
sonal involvement saves Dr. Obaisi from liability here. See
Pepper, 430 F.3d at 810.
B. Wexford
The claim against Wexford “proceeds under the theory of
municipal liability announced in Monell v. Department of Social
Services, 436 U.S. 658 (1978), which we have held applies in
§ 1983 claims brought against private companies acting under
color of state law.” Chatham v. Davis, 839 F.3d 679, 685 (7th Cir.
2016) (citing Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 795–96
(7th Cir. 2014)). Prevailing on such a claim requires evidence
that a Wexford policy, practice, or custom caused a constitu-
tional violation. Whiting, 839 F.3d at 664.
We held in Glisson v. Indiana Department of Corrections,
however, that this list is not exclusive; rather, a “policy” can
take the form of a hands-off approach or a policy to do noth-
ing (a “policy of inaction”). 849 F.3d 372, 379–80 (7th Cir. 2017)
(en banc); see also King v. Kramer, 680 F.3d 1013, 1021 (7th Cir.
2012) (explaining that when a municipality has “actual or con-
structive knowledge that its agents will probably violate con-
stitutional rights, it may not adopt a policy of inaction.”);
Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir.
2010) (“[I]n situations where rules or regulations are required
to remedy a potentially dangerous practice, the County’s fail-
ure to make a policy is also actionable.”); Sims v. Mulcahy, 902
F.2d 524, 543 (7th Cir. 1990) (“[I]n situations that call for pro-
cedures, rules or regulations, the failure to make policy itself
may be actionable.”).
No. 17-2821 23
When a § 1983 claim is based on a policy of inaction, the
plaintiff must present evidence that the institution made a
conscious decision not to act. Glisson, 849 F.3d at 381; see also
id. at 383 (Sykes, J., dissenting) (agreeing that a “a municipal-
ity’s failure to have a formal policy in place on a particular
subject may represent its intentional decision not to have such
a policy—that is, a policy not to have a policy—and that insti-
tutional choice may in appropriate circumstances form the ba-
sis of a Monell claim.”). Consequently, in prison litigation, in-
mates generally cite other examples where a constitutional vi-
olation similarly occurred. Id. at 381.
Walker challenges two aspects of Wexford’s operations on
appeal: (1) that Wexford did not have a policy or practice of
ensuring that offsite appointments authorized through UM
occurred; and (2) that Wexford had a practice of deferring to
UIC in scheduling offsite appointments. Walker attempts to
bolster his point that Wexford’s monitoring and scheduling
practices presented obvious risks by focusing on Dr. Obaisi’s
testimony that there was no guarantee that UIC would call to
schedule a follow-up appointment,10 and to Dr. Fisher’s testi-
mony in separate litigation that as of August 2012, a large
number of authorized appointments were not happening. See
Quinn v. Obaisi, No. 14-cv-6633, 2018 WL 1184736, at *8 (N.D.
Ill. Mar. 7, 2018).
In response, defendants deny responsibility for any offsite
appointments that were not scheduled as requested by plac-
10 Indeed, during his deposition Dr. Obaisi remarked that it was
“sometimes debatable” whether UIC would call certain inmates for their
follow-up appointments.
24 No. 17-2821
ing the blame for such errors on the onsite prison staff mem-
ber, who is “likely not a Wexford employee.” Defendants also
cast doubt on Walker’s assertion that it was foreseeable to
Wexford that its monitoring and scheduling policies were
“highly likely” to lead to harm. For example, defendants note
that despite Wexford’s financial incentive to avoid delays, it
had no control over UIC’s schedule. Indeed, Walker has not
produced any evidence that Wexford could control UIC’s
schedule; it is undisputed, as defendants emphasize, that UIC
is not in Wexford’s chain of command. Finally, defendants ar-
gue that Walker cannot prevail because he has no evidence
that other inmates faced the same treatment issues and his
case is not of the “rare” cases where evidence of his own ex-
perience is sufficient to establish deliberate indifference. See,
e.g., Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 929
(7th Cir. 2004) (affirming a finding of Monell liability where
the evidence showed the organization condoned its employ-
ees’ repeated decisions to ignore its policies).
Neither Walker’s own experience nor the testimony from
Drs. Obaisi and Fisher admitting awareness that referrals to
UIC were sometimes never scheduled or, if scheduled, signif-
icantly delayed, is enough to establish that Wexford was de-
liberately indifferent to Walker’s serious medical needs. See
Glisson, 849 F.3d at 381. Wexford’s knowledge that some re-
ferrals slipped through the cracks is not the same as Wex-
ford’s knowledge that constitutionally necessary referrals
were not happening with such frequency that it ignored an
obvious risk of serious harm. Similarly, Walker has not shown
that the standby options of Stateville’s onsite medical care fa-
cilities and the nearby hospital were not sufficient as a backup
plan in the intervening periods of time where an inmate
awaited treatment with an outside expert.
No. 17-2821 25
As for the coordination of schedules with UIC, Walker’s
instinct that Wexford should not be able to use UIC as a shield
is understandable. But Wexford cannot be accused of “defer-
ring” to UIC when Wexford had no control over UIC. To defer
to another suggests the relinquishment of power or control,
which did not exist here. Practically speaking, Wexford refers
many inmates, and the specialists at UIC have a finite number
of appointments available; thus, it seems unavoidable that, at
times, the wait for appointments will grow to a few months.
Absent evidence that Wexford was on notice that these wait
times were likely to cause constitutional violations, but failed
to act in response, we cannot hold Wexford liable.
C. Exhaustion
Because we conclude that the district court appropriately
entered summary judgment against Walker on the merits, we
need not address whether the district court correctly con-
cluded that Walker failed to exhaust his administrative reme-
dies.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.