United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
ROBERT L. MILLER, Jr., District Judge.
Donnell Robertson, a pro se prisoner, is proceeding against Dr. Jackson and Dr. Liaw for compensatory and punitive damages for denying him medical treatment for his ears and back while he was housed at the Westville Correctional Facility. He was also proceeding on a claim for injunctive relief for the same conditions, but his transfer to the Miami Correctional Facility last year made his injunctive relief claim moot. See Pearson v. Welborn, 471 F.3d 732, 743 (7th Cir. 2006) ("Pearson was transferred from Tamms, thus mooting, at the very least, his request for injunctive relief.") and Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004) ("[W]hen a prisoner who seeks injunctive relief for a condition specific to a particular prison is transferred out of that prison, the need for relief, and hence the prisoner's claim, become moot.").
The defendants seek summary judgment because Mr. Robertson can't demonstrate that they were deliberately indifferent. Mr. Robertson argues that the defendants were deliberately indifferent to his serious medical needs and that they shouldn't have accessed his medical records as a part of this lawsuit.
I. Legal Standards
Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Federal Rule of Civil Procedure 56(a). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id . To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). A party opposing a properly supported summary judgment motion can't just rely on allegations or denials in his or her own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party doesn't establish the existence of an essential element on which that party bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
Mr. Robertson objects to the defendants' submission of his medical records. He filed a motion asking the court to dismiss the summary judgment motion because his records were obtained in violation of Indiana Department of Correction policies and without his consent. "[T]he exclusionary rule is not a proper remedy for a violation of agency regulations, " Buntrock v. S.E.C., 347 F.3d 995, 999 (7th Cir. 2003), and while federal law provides for the privacy of medical records, "HIPAA does not provide any private right of action, much less a suppression remedy." United States v. Streich, 560 F.3d 926, 935 (9th Cir. 2009). Mr. Robertson's medical records are admissible and the motion asking to dismiss the summary judgment motion will be denied.
Mr. Robertson doesn't dispute the accuracy of his medical records (DE 27-2) or any of the declarations made by either Dr. Liaw (DE 27-1) or Dr. Jackson (DE 27-3). For summary judgment purposes, then, the court accepts them in their entirety as undisputed facts. Dr. Jackson declared that "although I do not recall specifically examining the patient, I may have responded to calls from nursing staff regarding his frequent Urgent Care visits." DE 27-3 at 2. The medical records contain nothing to indicate that Mr. Robertson was ever a patient of Dr. Jackson. Neither is there any record of Dr. Jackson having consulted with a nurse about his medical condition or having made any treatment decisions related to him.
Though the court has accepted as undisputed facts all of the medical records submitted with the summary judgment motion (DE 27-2), This opinion only sets forth those medical facts that are relevant to this decision. These include any treatment provided by Dr. Liaw as well as treatment provided by others that relate to events where Mr. Robertson alleges that Dr. Liaw was deliberately indifferent even if there was no indication that Dr. Liaw was involved in the event. The facts related to treatments provided by Dr. Liaw are in separate paragraphs from those related to treatments by others.
We begin with the medical events of 2012. On March 5, Dr. Liaw examined Mr. Robertson and noted that he had a follow-up appointment with an outside specialist for his chronic ear infections. DE 27-2 at 1. His report doesn't indicate that Mr. Robertson had any back pain. DE 27-2 at 2. During that visit, Dr. Liaw reviewed his prescribed medications that included boric acid powder for both ears once a day and two 325 mg Tylenol twice a day for pain. DE 27-2 at 2-3.
Dr. Anekal B. Sreeram, an otolaryngologist, saw Mr. Robertson on March 23, and suggested Debrox drops twice a day. 27-2 at 6. That day, Mr. Robertson began receiving Debrox drops twice a day for his ears. DE 27-2 at 10. Dr. Sreeram saw him again on April 6, and suggested antibiotic ear drops and Vicodin for severe pain. DE 27-2 at 7-8. Mr. Robertson began receiving Ciloxan drops twice a day for both ears that day. DE 27-2 at 10.
On April 12, Dr. Liaw had a follow up visit with Mr. Robertson to discuss the appointments with Dr. Sreeram. DE 27-2 at 12. Dr. Liaw noted that Dr. Sreeram had suggested Vicodin, but no changes were made to Mr. Robertson's medications during this visit. Id.
On April 27, after a follow up visit with Mr. Robertson and after speaking with Dr. Krembs at the prison, Dr. Sreeram decided that the Vicodin prescription wasn't necessary. DE 27-2 at 16-17. On May 1, Mr. Robertson met again with Dr. Sreeram. After that visit Mr. Robertson spoke to a nurse and asked for Vicodin. DE 27-2 at 19. The nurse told him that she couldn't prescribe medication and she forwarded his request to Dr. Krembs. DE 27-2 at 19-20.
On May 8, Mr. Robertson again requested Vicodin as well as a return visit to see Dr. Sreeram. Dr. Liaw prescribed another antibiotic prescription, but didn't schedule an appointment with the outside specialist because Dr. Sreeram declined to see him. DE 27-2 at 21. The same day, Mr. ...