However, Dr. Franklin also criticized Dr. Sood for treating Holmes symptomatically, without any
attempt to evaluate the cause of his symptoms. (Jd. at 59.) Dr. Franklin opined that although
subsequent events proved that Holmes did not have a mechanical bowel obstruction, the possibility
of an obstruction would have been part of Dr. Franklin’s analysis when Holmes presented with his
symptoms. (/d. at 99, 149-50.) Further, Dr. Franklin testified that the only thing Dr. Sood did right
was to perform a physical examination on Holmes. (/d. at 60-61, 82.) Dr. Franklin further indicated
his opinion that that the prescriptions Dr. Sood provided could not reasonably be described as proper
medical treatment. (Franklin Report.) Holmes’ experts opined that Holmes should have been treated
with nasogastric tube suctioning, intravenous fluids, withdrawal of narcotic medication, small tap
water enemas and/or colonoscopic intervention. (/d.; Himmelman Report.) Dr. Sood did not
provide any of those treatments. Dr. Darbandi testified that surgery may have been avoided if
Holmes had less dilation when he arrived at Silver Cross Hospital. (Darbandi Dep. at 65-66.) Dr.
Franklin opined that conservative measures may have been successful and surgery avoided if the
problem was detected earlier. (Franklin Report.) Thus, a reasonable jury could find that Dr. Sood
disregarded the risk to Holmes’ health. Based on all of the above, there is a genuine issue of material
fact and summary judgment is inappropriate.

As the Seventh Circuit observed in Greeno, a prisoner does not need to show that he was
literally ignored. Despite the fact that Holmes received medical attention and pain medication, a
factfinder could conclude that the treatment Holmes received was so blatantly inappropriate as to
evidence deliberate indifference likely to seriously aggravate his condition, based on Dr. Sood’s
refusal to alter Holmes’ course of treatment despite his repeated reports that the medication was not

working and his condition was getting worse. See Greeno, 414 F.3d at 654. Thus, summary


intervention may have prevented the need for surgery. See Franklin Report.

After the first surgery, Holmes underwent a second surgery to remove the ileostomy and
restore intestinal continuity. (Franklin Report; Darbandi Dep. at 44-46.) Subsequently, Holmes
experienced complications from that surgery, specifically an anastomosis leak. (Darbandi Dep. at
44.) After those complications, Holmes was taken back to the operating room and ended up having
an ileostomy again. (d. at 45.) Holmes had additional complications with sepsis, a wound infection,

which resulted in a long hospital course from which he eventually recovered. (/d.)

LEGAL STANDARD

The court may properly grant summary judgment “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact exists “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 US. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the court
must construe all facts and draw all reasonable and justifiable inferences in favor of the non-moving
party. Id. at 255. The moving party bears the initial burden to demonstrate the absence ofa genuine
issue of material fact and that judgment as a matter of law should be granted in the moving party’s
favor. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met the initial
burden, the non-moving party must designate specific facts showing that there is a genuine issue for
trial. Jd. at 324. The non-moving party must support its contentions with admissible evidence and

may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits. Id.


36.) On the other hand, Holmes reported that he had a good bowel movement and was passing gas.
(P1.’s LR Resp. 439.) His abdomen was reported as distended but he had good bowel sounds. (/d.)
Asaresult of this examination, Dr. Sood prescribed “continue present management.” (Jd. 440.) Dr.
Sood prescribed Clonidine (a blood pressure medicine) twice daily for Holmes, unrelated to Holmes’
abdominal condition. (Defs.’ LR Resp. { 37.)

On September 15, 2001, Dr. Sood was informed of Holmes’ condition and he prescribed
Vicoprofen for pain. (/d. J 38.)

On September 16, 2001, Holmes submitted a written inmate health service request
complaining of a fistula in his rectum, which is a chronic condition, a history of carcinoma,
constipation, vomiting, and bleeding in his rectum. (PI.’s LR Resp. 42; Defs.’ LR Resp. 1 39, 40.)
That day, a nurse recorded that Holmes complained of “constipation for a couple of []” (sentence was
not completed), as well as reversal of colostomy. (Defs.’ LR Resp. 140.) When inmates complain
of constipation for a couple of days, the nurses follow a standard protocol of giving the inmate milk
of magnesia. (P1.’s LR Resp. § 42.) Dr. Sood reviewed the September 16, 2001 request for medical
care, and Holmes was given milk of magnesia. (Defs.’ LR Resp. 41.) However, Dr. Sood testified
that if there had been a sudden onset of abdominal distention, nausea, vomiting, constipation, and
low bowel sounds, he would have sent Holmes to the hospital. (/d. 77; Sood Dep. Vol. I] at 120-
21)

Dr. Sood conducted a physical examination of Holmes on September 17,2001 and noted that
his abdomen was “questionable to evaluate,” meaning “hard to evaluate at that time,” because of
distention and/or tenderness. (Sood Dep. Vol. II at 57-58, 65-66.) During the physical examination,

Dr. Sood found that Holmes’ abdomen was abnormal, “tender-tense” with diffuse tenderness, and


judgment is not appropriate on Holmes’ § 1983 claim against Dr. Sood.

Il. Holmes’ intentional infliction of emotional distress claim

Inorder to establish a claim for intentional infliction of emotional distress under Illinois law,
a plaintiff must show that: (1) the defendant’s conduct was truly extreme and outrageous; (2) the
defendant knew that there was a high probability that his or her conduct would cause severe
emotional distress, or intended for his conduct to cause severe emotional distress; and (3) the
conduct in fact caused severe emotional distress. McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill.
1988).

Defendants argue that both Wexford and Dr. Sood are entitled to summary judgment on
Holmes’ intentional infliction of emotional distress claim because Holmes provided no evidence:
(1) that Dr. Sood or Wexford did anything that they thought was harmful to Holmes; (2) that any of
the treatment rendered by Dr. Sood was in any way motivated by an abuse of power; or (3) that Dr.
Sood’s conduct rose to the level which is beyond all bounds of decency or that which cannot be
tolerated in a civilized society. (Defs.’ Mem. at 5-7.)

Holmes has not presented facts sufficient to allow a reasonable jury to find intentional
infliction of emotional distress. In fact, Holmes’ response to the motion for summary judgment on
this issue consists of three paragraphs and does not attempt to demonstrate what evidence would
establish the elements of intentional infliction of emotional distress.

Holmes’ own experts both testified that they saw no evidence that Dr. Sood was intentionally
trying to harm Holmes. Holmes does not offer any evidence to the contrary. Holmes merely

responds that because he was incarcerated, he had no other option than to rely on Dr. Sood to save

21


For the reasons discussed above, Defendants’ Motion for Summary Judgment is granted in
part and denied in part. Judgment is entered in favor of both Defendants on Counts II and III and

in favor of Defendant Wexford Health Services on Count J. Summary judgment is denied as to

Geraldine Soat Brown

United States Magistrate Judge

Defendant Kul Sood on Count I.

IT IS SO ORDERED.

December 9, 2005

23


In Greeno, the plaintiff complained to the prison staff of severe heartburn and occasional
vomiting, and informed the prison staff of a family history of peptic ulcer disease. 414 F.3d at 649.
The prison staff treated the plaintiff's symptoms by prescribing Maalox and noting in his chart that
chronic peptic ulcer and gastro-esophageal reflux disease needed to be ruled out. Jd. However,
despite those notations, the prison staff failed to perform any testing and prescribed Maalox and
Tagamet, which did not help the plaintiff's pain. /d. at 649. The Seventh Circuit reversed summary
judgment in favor of the defendants, finding that a prisoner is not required to show that he was
literally ignored. Id. at 653-54. The court rejected the defendants’ contention that the plaintiff's
claim should fail because he received some treatment, noting that that argument “overlooks the
possibility that the treatment [the plaintiff] did receive was ‘so blatantly inappropriate as to evidence
intentional mistreatment likely to seriously aggravate’ his condition.” Jd. at 654 (quotation omitted).
The Seventh Circuit found that “a factfinder could infer as much from the medical defendants’
obdurate refusal to alter [the plaintiff's] course of treatment despite his repeated reports that the
medication was not working and his condition was getting worse.” /d.

In Sherrod, the plaintiff presented with pain in his abdomen and symptoms including right
lower quadrant abdominal pain, pain on palpation, and pain with eating or moving. 223 F.3d at 608.
The defendants acknowledged the risk of appendicitis, which they documented in his charts, but
failed to perform the tests needed to rule out appendicitis. /d. at 611. Rather, the medical staff
placed the plaintiff on a liquid diet, enemas and pain medication, which did not ameliorate his
condition. /d. The Seventh Circuit held that summary judgment was not appropriate because the
evidence raised questions of material fact as to whether the prison medical staff exhibited deliberate

indifference by returning the plaintiff to his cell despite the appendicitis symptoms. Id.

18


inmate at WCADF, testified that Holmes’ stomach appeared fairly normal when he entered WCADF
on September 13, 2001, but that during the next two to three weeks it had started swelling bigger and
bigger each day. (Smith Dep. at 42-45.)

Julie Sterr, a social worker who regularly worked with detainees at WCADF, intervened with
the medical staff on Holmes’ behalf several times in the weeks prior to his release. (P].’s LR Ex. D,
Julie Sterr Dep. at 6-7, 10-16, 25-26.) Sterr concluded that Holmes’ condition was life-threatening,
with symptoms of a bowel obstruction requiring treatment. (/d. at 12, 18, 25-26.) She made
multiple requests for Holmes to be provided the treatment he required. (/d. at 12-18, 25-26.)
Defendants admit that Sterr appeared before Judge Wozack and requested that he order Holmes’
release from jail due to his health condition, even saying “You got to let him go, they’re going to kill
him.” (Defs.’ LR Resp. {| 72; Sterr Dep. at 15-18.) Holmes was released from custody at
approximately 7:45 p.m. on October 12, 2001. (Defs.’ LR Resp. { 74.) Holmes’ wife picked him
up and took him directly to Silver Cross Hospital where his doctors had a room waiting for him.
(id)

Holmes’ expert concluded that Holmes’ pain and distention increased during his detention
at WCADF, and upon leaving the facility he was found to have dilation of his colon. (Defs.’ LR
Resp. { 16; Pl.’s LR Ex. G, James L. Franklin Expert Report.) Because his colon was dilated, it was
not functioning properly to expand and contract in order to expel waste from the body. (Defs.’ LR
Resp. 16.) Colon dilation can be decompressed by “placing the patient on intravenous fluids, naso-
gastric decompression, attempting to withdraw narcotic medications and correcting any electrolyte
imbalance (low potassium).” (/d. § 90.) Other conservative methods of treating colon dilation
include use ofa rectal tube and small tap water enemas. (/d.) Decompressing colon dilation can also

be achieved with colonoscopy. (/d. 91.) However, that procedure is more invasive, and thus is

10


fluids, enemas and a nasogastric tube. (/d. J] 48, 92; PI.’s LR Ex. M, Holmes’ medical records
W001004-W001014.)

On September 26, 2001, Nurse Keenan noted that Holmes complained of abdominal pain,
denied constipation, had a normal bowel movement, and had run out of medication. (Sood Dep. Vol.
Il at 77-78.) Dr. Sood physically examined Holmes on September 26, 2001, and his notes document
Holmes’ complaints of abdominal pain and distention. (Defs.’ LR Resp. 51.) Dr. Sood testified
that Holmes was not in acute distress, his vital signs were stable, his abdomen was distended, bowel
sounds were active, and there was no guarding or rebound. (Sood Dep. Vol. If at 79.) At that time,
Dr. Sood prescribed Tylenol 3 for pain. (Defs.’ LR Resp. § 52; Himmelman Dep. at 84.) Dr. Sood
recorded that Holmes’ abdomen was “very hard to evaluate organomegaly.”* (/d.) Dr. Sood was
unable to palpitate Holmes’ liver or spleen or any specific organ or mass in the abdominal cavity.
(P1.’s LR Ex. P, Dr. John Clark Dep. at 100.) Even though Dr. Sood currently has no memory of
how distended Holmes’ abdomen was on September 26, 2001, he testified that his examination that
day showed that Holmes was stable and not in acute distress. (Sood Dep. Vol. II at 79-81.)
However, Dr. Himmelman testified that there is some “incongruence between what . . . [Dr. Sood]
said in his examination and how he treated [Holmes],” because even though Dr. Sood noted that
Holmes was not in any acute distress, he still prescribed Tylenol 3 for pain. (Himmelman Dep. at
84-85.)

On September 27, 2001, Dr. Sood was informed about Holmes’ condition and prescribed
Vicoprofen and Tylenol 3. (Defs.’ LR Resp. § 54.)

On September 30, 2001, Holmes refused to take Colace (a stool softener) because it was

® Organomegaly means “enlarged organs.” (Defs.’ LR Resp. {| 53.)

7


“masses, questionable to evaluate.” (Pl.’s LR Resp. { 43; Sood Dep. Vol. II at 65.) Dr. Sood
prescribed Colace (a stool softener) and Zantac (an antacid) twice a day for thirty days for abdominal
discomfort. (PI.’s LR Resp. { 44; Defs.’ LR Resp. 4 45.) Even though Dr. Sood had difficulty
evaluating Holmes’ abdomen due to distention and/or diffuse tenderness, he did not take any other
steps to evaluate Holmes’ abdomen. (Defs.’ LR Resp. {i 21, 43; Sood Dep. Vol. II at 171-72.)
Because of Holmes’ medical history and symptoms it was important to evaluate for masses or
enlargements of the intestine. (/d. § 44.) Dr. Sood could have evaluated Holmes’ intestinal tract
through diagnostic studies such as x-rays, obstructive series films, or ultrasound. (/d. 22.) Dr.
Himmelman, one of Holmes’ experts, believes that after that examination, Dr. Sood should have sent
Holmes to have an obstructive series of abdominal x-rays and surgical consultation. (Defs.’ LR Ex.
E, Robert Himmelman Dep. at 103.) However, Dr. Himmelman admitted that on September 17,
2001, Holmes apparently did not have an acute surgical abdomen. (Jd. at 105.)

On September 21, 2001, Dr. Sood was informed of Holmes’ condition and he continued the
prescription for Vicoprofen. (Defs.’ LR Resp. 450.) Dr. Sood also reviewed Holmes’ medical
records from Silver Cross Hospital and learned that Holmes had a chronic abdominal condition,
including a history of sigmoid stricture, pancreatitis, a previous colostomy, and ileus.’ (/d. {4 46.
47.) Through those records, Dr. Sood learned that Holmes had been hospitalized in July 2001 with
complaints of abdominal pain and nausea, and that a dilation of Holmes’ colon at that time was

successfully treated without surgical intervention by adjusting his medications, providing intravenous

> Tleus is the obstruction in any part of the intestine (not necessarily the ileum), and also
the condition resulting from the obstruction. It is marked by abdominal pain, nausea, vomiting
and fever. Schmidt, Attorneys’ Dictionary of Medicine at Vol. 3, I-23.


Likewise, in this case, there are facts from which the jury could infer that Dr. Sood knew that
Holmes faced a substantial risk of serious harm and disregarded that risk by failing to take
reasonable measures. Deliberate indifference is a question of fact, and if a risk was obvious, the
factfinder may conclude that the defendant knew of a substantial risk. As discussed above, lay
people testified that the risk to Holmes’ health was obvious. The photographs depicted in Pl.’s LR
Ex. L show that Holmes was grossly distended, which would have been obvious to any layperson.
When the photographs of Holmes were shown to him at his deposition, Dr. Sood testified that he
does not remember Holmes looking like that when he was at WCADF, but he admitted that if
Holmes had looked like that, he would have referred him to the hospital. (Sood Dep. Vol. II at 119-
20.) Also, Dr. Sood admitted that Holmes’ symptoms of abdominal distention, pain, constipation,
nausea, vomiting, and low bowel sounds could have been caused by an obstruction, and that an
obstruction can lead to death. (Sood Dep. Vol. II at 172-74; Sood Dep. Vol. fat 119.) Although Dr.
Sood testified that he did not refer Holmes to an outside facility because of his chronic condition and
previous record, Dr. Sood admitted that Holmes’ chronic condition did not preclude the possibility
that Holmes was in fact suffering from a bowel obstruction. (Sood Dep. Vol. II at 198, 202-03.)
From all of the above facts, a reasonable jury could find that Dr. Sood knew of a substantial risk to
Holmes’ health.

Defendants argue that the only criticism Holmes’ experts have expressed in their depositions
is Dr. Sood’s failure to obtain abdominal x-rays, which, they argue, would at most support a claim
of negligence, not deliberate indifference. (Defs.’ Mem. at 4-5; Defs.’ Reply at 2.) However, that
simply is not true. One of Dr. Franklin’s criticisms of Dr. Sood was that Holmes should have been

referred out for x-rays and other diagnostic studies. (Franklin Dep. at 97, 109, 132, 148-50.)


Dep. Vol. I at 108-13.) On October 11, 2001, Holmes submitted an inmate health service request,
complaining of soft bowel movements, abdominal! pains and vomiting, but denying constipation.
(Med. Record No. W001027.) His abdomen was hard and his bowel sounds were low. (Sood Dep.
Vol. II at 86-88.) Medical progress notes from October 11 show abdominal distention, hard
abdomen, pain, vomiting, missed meals, and soft bowel movements. (Defs.’ LR Resp. 7 62.) At
2:00 p.m. on October 11, 2001, Holmes’ bowel sounds were low in all four quadrants and his
abdominal girth was 40 inches. (/d. 63.) At this time, Holmes was in abdominal distress. (/d. {
65.) However, Dr. Sood testified that he was not concerned about the abdominal distress because
of Holmes’ history of abdominal surgeries and distress. (Sood Dep. Vol. II at 93-94.) That evening,
Holmes thought he was “impacted” and complained of abdominal pain, and his bowel sounds were
low. (id. at 108, 111; Med. Record No. W001028.) Holmes was given a cup to obtain a stool
sample to determine whether there was blood in his stool, but the test showed no blood. (PI.’s LR
Resp. § 52.) At 11:40 p.m., Holmes had diarrhea. (Defs.’ LR Resp. § 67.)

In the early morning hours of October 12, 2001, Dr. Sood was notified that Holmes was
complaining of pain, his bowel sounds were diminished in all four quadrants, and he had diarrhea.
(id. 168.) The medical progress notes document that at 11:00 a.m., Holmes told the medical staff
that he was throwing up blood and the medical staff noted that Holmes had one loose watery stool
with no blood in stool, abdominal distention, diminished bowel sounds in all four quadrants, and an
abdominal girth measuring 42 inches. (/d. | 69; Sood Dep. Vol. HI at 118.) At that time, Dr. Sood
prescribed Kaopectate for diarrhea. (P1.’s LR Resp. {| 53.)

On October 12, 2001, Holmes’ abdomen measured 42 inches. (Sood Dep. Vol. II at 118.)
According to Holmes and his wife Marilyn, that is about 10 inches larger than his normal waist size.

(Holmes Dep. at 83-85; PI’s LR Ex. K, Marilyn Holmes Dep. at 39-41.) Timothy Smith, another

9


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EDWARD HOLMES, y
Plaintiff, )
)
v. ) Case No. 02 C 7266
) Magistrate Judge Geraldine Soat Brown
DR. KUL SOOD and )
WEXFORD HEALTH SOURCES, INC., )
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Edward Holmes (“Holmes”) brought this action pursuant to 42 U.S.C. § 1983,
alleging that Dr. Kul Sood (“Dr. Sood”) and Wexford Health Sources, Inc. (“Wexford”)
(collectively, “Defendants”) violated Holmes’ civil rights by deliberate indifference to his medical
needs when Holmes was incarcerated at the Will County Adult Detention Facility “(WCADF”).
(Second Am. Compl. § 1, 5-19.) [Dkt 33.] Particularly, Holmes claims that Defendants’ failure to
treat his abdominal pain and distention properly necessitated subsequent surgery and treatment. (/d.)
Holmes also alleges pendent state law claims of intentional infliction of emotional distress and
respondeat superior. (/d. §§ 20-28.) Defendants have moved for summary judgment. [Dkt 66.] The
parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Dkt
22, 23.] For the reasons set forth below, Defendants’ motion for summary judgment is granted as
to Holmes’ intentional infliction of emotional distress and respondeat superior claims, granted as to

Holmes § 1983 claim against Wexford, and denied as to Holmes’ § 1983 claim against Dr. Sood.


were trying to provide what they thought was appropriate medical attention.” (Defs.’ LR Ex. D, Dr.
James L. Franklin Dep. at 59-60.) Dr. Franklin criticized Dr. Sood’s treatment of Holmes as not
“particularly appropriate,” and stated that the only correct thing done was the physical examination
of Holmes. (id. at 60-61, 82, 96-98, 128-32.) Furthermore, Dr. Franklin opined that when Dr. Sood
had difficulty examining Holmes’ abdomen properly by touch (because of the distention), diagnostic
studies, such as an x-ray, were necessary. (Jd. at 97, 109, 148-50.) Dr. Franklin testified that
although subsequent events proved that Holmes did not have a mechanical bowel obstruction, the
possibility of obstruction would have been part of Dr. Franklin’s analysis when Holmes presented
with increasing abdominal distention in September and October 2001. (/d. at 99, 149-50.) Dr.
Franklin criticized Dr. Sood’s failure to refer Holmes out for a series of x-rays or other diagnostic
studies. (Id. at 97, 132, 149-50.) Instead, Dr. Sood provided Holmes with “symptomatic[]}”
treatment with continued narcotic pain medications, laxatives, and a stool binding agent. (/d. at 59.)
Dr. Franklin indicated his opinion that those prescriptions were not the proper medical treatment for
Holmes’ condition, as it deteriorated. (Franklin Report.) According to Holmes’ experts, he should
have been treated with nasogastric tube suctioning, intravenous fluids, withdrawal of narcotic
medication, small tap water enemas and/or colonoscopic intervention. (/d.; PI.’s LR Ex. I, Ronald

Himmelman Expert Report.)'°

° In his Response, Holmes argues that Dr. Franklin testified that whether the health care
providers were seeking to intentionally injure Holmes was not a topic on which he was rendering
an opinion. (Pl.’s LR Resp. { 13.) However, the citations to the record provided do not support
that proposition.

‘© Defendants assert that Dr. Franklin does not believe that Dr. Sood should have
provided that treatment. (Defs.’ LR Resp. § 28.) However, Dr. Franklin’s report lists some of
the above as the proper treatment for colonic ileus, which he opines is a condition from which
Holmes suffered. (Franklin Report.)

12


generally used after conservative measures have failed, but prior to surgery. (id.) Dr. Sood did not
take any of those steps.

Upon reviewing the photographs taken by Marilyn on October 15, 2001, depicting what she
asserts was Holmes’ condition for at least one week prior to his release from WCADF, Dr. Sood
testified that he does not recall Holmes looking like that when he was at WCADF, and if Holmes
had looked like that he would have referred him to the hospital. (Photographs and Marilyn Aff. {4
6, 7; Sood Dep. Vol. I at 119-20.) Dr. Sood testified that he did not order abdominal x-rays or refer
Holmes to an outside facility because of Holmes’ chronic abdominal condition, multiple surgeries,
and previous medical record. (Sood Dep. Vol. II at 198, 202.) However, Dr. Sood admitted that a
chronic abdominal condition does not eliminate the possibility of the patient developing an acute
condition, such as a bowel obstruction. (Jd. at 202-03.) Dr. Sood knows that abdominal distention,
pain, constipation, nausea, vomiting, and low bowel sounds are symptoms of a bowel obstruction,
which if left untreated can lead to death. (/d. at 172-74; Sood Dep. Vol. I at 119.) Defs.’” LR Resp.
4/78.) Dr. Sood also testified that based on Holmes’ history of abdominal problems, he would have
referred Holmes to the hospital if Holmes’ symptoms would have changed suddenly and included
a sudden onset of abdominal distention, nausea, vomiting, constipation, and low bowel sounds.
(Sood Dep. Vol. II at 120-21.) From September 13, 2001 to October 12, 2001, Dr. Sood was
informed that Holmes had experienced acute abdominal pain, abdominal distention, nausea,
vomiting, constipation, and low bowel sounds. (PI.’s LR Resp. 6; Defs.’ LR Resp. 479; Keenan
Aff. $9 6, 8.)

Dr. James Franklin, one of Holmes’ expert witnesses, testified that he does not believe

anyone at WCADF intended to injure Holmes, but that they were trying to treat his symptoms and

11


“making [him] want to vomit.” (P1.’s LR Resp. § 49; Holmes Dep. at 148.)

In the last couple of weeks that Holmes was incarcerated at WCADF, Holmes was
constipated, his stomach was distended, and he thought that he was going to die. (Defs.’ LR Resp.
¢ 59; Holmes Dep. at 116-19.) In October 2001, Holmes was emaciated and his stomach was
extremely distended. (Defs.’ LR Resp. § 60; Pl.’s LR Ex. X, Timothy Smith Dep. at 42-45). In his
Response to Defendants’ Motion for Summary Judgment, Holmes attached photographs of his
abdomen that were taken on October 15, 2001. (Pl.’s LR Ex. L, Photographs and Affidavit of
Marilyn Holmes §§ 6, 7.) Marilyn Holmes’, Mr. Holmes’ wife, took these photographs at the Silver
Cross Hospital and swears that the photographs are a “fair, accurate and true depiction of Mr.
Holmes on October 14 and 15, 2001 and for at least, approximately, one week prior to his release
from the Will County Jail.” (/d.) Those photographs show that Holmes was grossly distended,
which would have been obvious to any layperson.*

On October 8, 2001, Holmes was so sick that he could not get up for the correctional head
count and, as a result, was punished by the correctional staff and given three hours of segregation.
(Defs.’ LR Resp. § 58; Holmes Dep. at 109-10.)

Dr. Sood was informed of Holmes’ condition throughout October 11 and 12, 2001. (Sood

7 For the sake of clarity, Plaintiff's wife, Marilyn Holmes, will be referred to herein as
“Marilyn.”

5 In Defendants’ LR Response, they hint that they object to those photographs on the
ground that Marilyn’s affidavit was not submitted until Holmes’ Response was filed. (Defs.” LR
Resp. { 17.) The fact that an affidavit is submitted in response to a motion for summary
judgment is not itself a basis for striking the affidavit. Notably, Defendants do not argue that the
photographs were not produced in discovery, nor do they provide any other reason for the court
to disregard the photographs. Defendants note that fact discovery closed on January 30, 2004.
(Id.) However, Defendants did not file any motion pursuant to Fed. R. Civ. P. 56(f) to seek any
further discovery. Defendants have not moved to strike or exclude this evidence, and therefore, it
will be considered for the purpose of this summary judgment motion.

8


his life and that by refusing to provide treatment, Dr. Sood willfully caused Holmes to suffer
excruciating pain and come very close to death. (PI.’s Resp. at 14.) Holmes has failed to meet his
burden as he did not designate specific facts showing there is a genuine issue for trial on his
intentional infliction of emotional distress claim. See Celotex, 477 U.S. at 324.

Holmes argues that all of the facts establishing Dr. Sood’s “deliberate indifference” are
sufficient to establish intentional infliction of emotional distress for Rule 56 purposes. (PI.’s Resp.
at 15.) However, if that were true, every violation of § 1983 would also be an intentional infliction
of emotional distress claim. Furthermore, Holmes’ argument ignores the elements of a claim of
intentional infliction of emotional distress as established in McGrath, During oral argument,
Holmes’ counsel was unable to cite any precedent in which a failure to act constituted intentional
infliction of emotional distress.

Accordingly, Defendants’ motion for summary judgment on Holmes’ intentional infliction

of emotional distress claim is granted.

III. | Holmes’ respondeat superior claim against Wexford

There is no respondeat superior liability under § 1983. See Jackson v. Illinois Medi-Car, Inc.,
300 F.3d 760, 766 (7th Cir. 2002). Because summary judgment is granted on the intentional
infliction of emotional distress claim, there is no underlying cause of action for Holmes’ respondeat
superior claim. Therefore, because there is no proper claim of respondeat superior, summary

judgment in favor of Wexford is granted.

CONCLUSION

22


employees that he had chronic pain, recently had a colostomy reversed, and his stomach hurt.’ (PI.’s
LR Resp. 7.) At that time, Holmes’ abdomen was distended and he provided a history of
abdominal distention for years. (/d. § 8; Holmes Dep. at 91-92.) Holmes also informed the medical
staff that he had a history of colon cancer. (Defs.’ LR Resp. § 32.) Holmes did not actually have
colon cancer, but testified that he had previously been told by a physician that he did. (/d.) Holmes
was taking pain medication, including Vicoprofen and Methadone at the time he entered WCADF.
(Holmes Dep. at 91-92; 98-100.) Dr. Sood authorized the continuation of Vicoprofen (a narcotic
pain reliever), which had been prescribed by Holmes’ outside doctor as a pain reliever. (Pl.’s LR
Resp. { 37; Defs.’ LR Ex. F, Dr. Kul Sood Dep. Vol. II at 38.) Vicoprofen can cause constipation
and abdominal problems. (Sood Dep. Vol. II at 38.) The Vicoprofen was not prescribed to treat
Holmes’ abdominal condition. (/d. at 38-39.)

During his detention at WCADF, Holmes was visibly ill. (Defs.’ LR Resp. {| 17; Holmes
Dep. at 119, 224.) The nurses saw Holmes every day. (Defs.’ LR Resp. | 19; Holmes Dep. at 94-
95.) Dr. Sood personally saw Holmes on several occasions and was regularly informed of his
condition through review of his medical chart and phone calls from the nursing staff. (Defs.’ LR
Resp. § 19; Keenan Aff. 8, Sood Dep. Vol. II at 40-41.) On September 14, 2001, Holmes was seen
by medical personnel at WCADF, complaining of chest pain, and the medical staff noted that his
abdomen was very distended with pain of an unknown etiology. (PI.’s LR Resp. § 38; Defs.’ LR
Resp. 435.) He also complained of chronic hip, abdominal and intestinal pain, and fistula drainage,

as well as a history of carcinoma with multiple surgeries. (P1.’s LR Resp. § 39; Defs.’ LR Resp. {

* A colostomy is the formation of an artificial outlet for the contents of the large intestine
(colon) through the wall of the abdomen. J. E. Schmidt, Attorneys’ Dictionary of Medicine, Vol.
2, C-361 (Matthew Bender, Nov. 2004).


See also Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994) (non-moving party is required
to present evidence of “evidentiary quality” (i.e., admissible documents or attested testimony, such
as that found in depositions or in affidavits) demonstrating the existence of a genuine issue of
material fact). “[N]either ‘the mere existence of some alleged factual dispute between the parties’
.. - Nor the existence of ‘some metaphysical doubt as to the material facts,’ is sufficient to defeat a
motion for summary judgment.” Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th
Cir. 1997) (quoting Anderson, 477 U.S. at 247 and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)). Thus, “[t]he mere existence of a scintilla of evidence in support
of the [non-moving party’s] position will be insufficient, there must be evidence on which the jury

could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

DISCUSSION
L. Holmes’ § 1983 Claims
A. § 1983 claim against Wexford
Defendants argue that Wexford is entitled to summary judgment on Holmes’ § 1983 claim
because the allegations against Wexford appear to be entirely vicarious, and § 1983 does not provide
for vicarious liability. (Defs.’ Mot. §§ 6, 8, 10; Defs.” Mem. at 5.) In his response, Holmes states
that he “does not oppose . . . summary judgment on the separate and independent claim against

Wexford under a Monell theory of liability.” (Pl.’s Resp. at 5.) Thus, summary judgment in favor

of Wexford on Holmes § 1983 claim is granted.

B. Holmes’ § 1983 claim against Dr. Sood


bigger each day. (Smith Dep. at 42.) Finally, Julie Sterr testified that she was concerned that
Holmes’ condition was life-threatening and requested Holmes’ release from jail, telling the judge,

“You got to let him go, they’re going to kill him.” (Sterr Dep. at 12, 15-18.)

2. Subjective element

The subjective element of deliberate indifference requires that the official “know[] of and
disregard{] an excessive risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Farmer, 511 U.S, at 837, However, a prisoner does not have to show that the
official intended or desired the harm that transpired. Greeno, 414 F.3d at 653. Whether a prison
official acted with deliberate indifference is a question of fact and “a factfinder may conclude that
a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer,
511 US. at 842.

Defendants correctly point out that neither medical malpractice nor a mere disagreement with
a doctor’s medical judgment amounts to deliberate indifference. See Chapman y, Keltner, 241 F.3d
842, 845 (7th Cir. 2001) (neither alleged negligence nor gross negligence is sufficient); Snipes v.
DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (evidence of difference of opinion as to whether one
course of treatment is preferable to another is insufficient); Bryant v. Madigan, 84 F.3d 246, 249 (7th
Cir. 1996) (the Eighth Amendment is not a vehicle for bringing claims for medical malpractice),
accord Oliver v. Deen, 77 F.3d 156, 159 (7th Cir. 1996). However, in order to prevail on an Eighth
Amendment claim for deliberate indifference, “a prisoner is not required to show that he was literally

ignored by the staff.” Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000).


B. Holmes’ Health Prior to Incarceration

Prior to his incarceration, Holmes had chronic abdominal distention, and suffered from
chronic abdominal pain and a chronic orthopedic condition. (Defs.’ LR Ex. C, Dr. Saeed Darbandi
Dep. at 52; Defs.’ LR Resp. § 10.) On July 28, 2001, prior to his incarceration, Holmes was seen
by Dr. Saeed Darbandi who found that Holmes had a mildly distended abdomen with some lower
abdominal tenderness, no guarding, no rebound tenderness, and no masses. (Darbandi Dep. at 31-
32.) The finding of no guarding and rebound tenderness means that the patient did not require

immediate surgery. (/d.)

Cc. Holmes’ Health During Incarceration

Holmes was incarcerated at WCADF from September 13, 2001 to October 12, 2001. (PI's
LR Resp. {f 1, 6.) During that time, Holmes suffered from stomach pain, constipation, diarrhea,
nausea, vomiting, and difficulty eating and digesting food. (Defs.’ LR Resp. § 11; Defs.’ LR Ex. B,

Edward Holmes Dep. at 126-27, 130-32.) At the time he was incarcerated, Holmes told Wexford

treatment while he was detained at WCADF. (Defs.’ LR Resp. 49.) Thus, that fact is admitted.
See L.R. 56.1(b)(3)(B).

3 Defendants attempt to dispute this statement of fact by stating that “Holmes made
complaints documented in his medical records on various occasions as reflected in his medical
records.” (Defs.’ LR Resp. { 11, citing Plaintiff's Ex. M, a compilation of Holmes’ medical
records.) However, Defendants fail to specify which portion of this statement is disputed, and
the court will not sift through the medical record in an attempt to determine what portion of this
statement is properly disputed. Thus, that statement will be deemed admitted. See L.R.
56.1(b)(3). Defendants asserted that type of response to a number of Plaintiff's statements of
additional facts, and where the dispute is not clear and the supporting evidence is not specific or
simply refers to Plaintiff's medical records, the statements will be deemed admitted.

3


FACTUAL BACKGROUND'
A. Relationship Between Wexford and Dr, Sood

Wexford contracted with WCADF to provide medical care to the inmates. (P1.’s LR Resp.
2.) In 2001, Wexford employed a full time nursing staff and a Medical Director/physician at
WCADF. (Defs.’ LR Resp. § 3; Pl.’s LR Ex. E at § 2.1.) Dr. Sood was the Medical Director for
WCADF on a contract basis with Wexford, working approximately 12 hours a week at WCADF.
(Pl.’s LR Resp. ¥ 3; Def.’ LR Resp. 5.)

The medical unit at WCADF also had eight or nine registered nurses who assisted the doctor,
administered medication, responded to inmate requests, and implemented the doctor’s orders. (Pl.’s
LR Ex. C, Dr. Kul Sood Dep. Vol. I at 87; PI.’s LR Ex. N, Affidavit of Christina Keenan {/3.) The
nurses did not have decision-making authority for the treatment of patients; rather, the decisions for
treatment plans and whether to send patients for outside medical care were the responsibility of Dr.
Sood. (Keenan Aff. § 3.) In 2001, Dr. Sood had sole decision-making responsibility for ordering
tests for the inmates at WCADF. (Sood Dep. Vol. I at 76-77.) As the Medical Director, Dr. Sood
had final responsibility for supervising medical and treatment decisions for the care provided to
patients at WCADF, and was responsible for Holmes’ medical care and treatment while he was

detained at WCADF. (Defs.’ LR Resp. 9; Pl.’s LR Ex. 0 § 31.7

’ The following facts are taken from the parties’ responses to the respective statements of
fact filed pursuant to Local Rule 56.1, which are cited herein as: “PI.’s LR Resp. §___” [dkt 75]
and “Defs,’ LR Resp. {__” [dkt 77], and from the exhibits submitted with those statements or
responses to those statements, or legal memoranda, which are cited herein as: “Pl.’s LR Ex. __”
[dkt 74] and “Defs.” LR Ex. __” [dkt 69]. Statements not responded to or not controverted by
specific references to the record are deemed admitted. L.R. 56.1(b)(3).

2 Although Defendants denied P1.’s LR Stmt. § 9 as it pertains to whether the Medical
Director had final authority over the medical treatment of inmates at WCADF, they did not
specifically dispute the statement that Dr. Sood was responsible for Holmes’ medical care and

2


D. Holmes’ Health After Release

Holmes was admitted to Silver Cross Hospital at approximately 8:00 pm. on October 12,
2001, with abdominal distention, but did not have his first abdominal x-ray until the following day.
(P1.’s LR Resp. 19; Defs.’ LR Resp. § 93.) Dr. Darbandi saw Holmes at Silver Cross Hospital on
either October 14, 2001 or October 16, 2001." (Darbandi Dep. at 16, 39-40.) When he first saw
Holmes, he did not believe immediate surgery was necessary, but rather decided to correct Holmes’
electrolytes, repeat the x-ray, and watch him clinically to see if there was any improvement. (/d. at
40-41.) There was an attempt to reduce Holmes’ colon dilation through conservative measures,
including a colonoscopic intervention. (Defs.’ LR Resp. { 94.)

Dr. Darbandi decided to operate on Holmes because of the size of the colon dilation, the x-
ray findings, severe tenderness and guarding upon examination, and because Holmes was stil] in a
lot of pain and discomfort with no improvement. (Darbandi Dep. at 41.) Dr. Darbandi testified that
based on his symptoms, Holmes had a high chance of bowel perforation. (/d. at 42.) Dr. Darbandi
performed an exploratory laparotomy and a total colectomy, removing portions of Holmes’ colon
and leaving him with an ileostomy. (/d. at 14, 17, 39-42, 65.) During surgery, Dr. Darbandi found
that Holmes had extensive chronic distention all the way to the rectum and his colon was dilated
approximately 16 to 17 centimeters. (/d. at 62, 64.) Dr. Darbandi testified that he does not believe
that Holmes had a mechanical obstruction of the bowel in October 2001. (/d. at 42.) Dr. Darbandi
also opined that if Holmes had less dilation when he presented at Silver Cross Hospital, surgery may

have been avoided. (/d. at 65-66.) That is consistent with Dr. Franklin’s opinion that early

Dr, Darbandi is not sure if he examined Holmes on October 16, 2001 or October 14,
2001. Dr. Darbandi’s report is dated October 16, 2001, but the pathology report lists a collection
date of October 14, 2001. (Darbandi Dep. at 38-40.)

13


Defendants also argue that Dr. Sood is also entitled to summary judgment on Holmes’ §
1983 claim because Holmes is unable to prove that Dr. Sood acted with deliberate indifference as
required by § 1983. (Defs.’ Mot. 11; Defs.’ Mem. at 3-5.)

Prison officials violate the Eighth Amendment’s proscription against cruel and unusual
punishment when they display “deliberate indifference to serious medical needs of prisoners.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976). A claim of deliberate indifference to a serious medical
need contains both an objective and a subjective component. Greeno v. Daley, 414 F.3d 645, 653
(7th Cir. 2005). To satisfy the objective component, a prisoner must demonstrate that his medical
condition is “objectively, ‘sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quotation omitted). To satisfy the subjective component, a prisoner must demonstrate that prison

officials acted with a sufficiently culpable state of mind. /d.

1. Objective element

A serious medical condition is one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would perceive the need for a doctor’s
attention. Greeno, 414 F.3d at 653. Defendants do not dispute that Holmes’ condition was
objectively serious, which the record demonstrates. First, upon entering WCADF, Holmes informed
Wexford employees that he had chronic abdominal pain and had just had a colostomy reversed.
Second, many lay people recognized Holmes’ need for medical treatment. Holmes testified that one
correctional officer told him, “Your time is running out, you ain’! got too many more days left.”
(Holmes Dep. at 116-17.) Holmes testified that Officer Flannagan also called out for help on his

behalf. (/d. at 117-18.) Timothy Smith testified that Holmes’ stomach started swelling bigger and