Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Niksich v. Corizon Inc.

United States District Court, S.D. Indiana, Terre Haute Division

May 10, 2019

EDWARD J. NIKSICH, Plaintiff,
v.
CORIZON INC., et al. Defendants.

          ORDER DISCUSSING MOTION FOR SUMMARY JUDGMENT

          JANE MAGNUS-STINSON, CHIEF JUDGE

         Plaintiff Edward Niksich is an inmate currently incarcerated at Wabash Valley Correctional Facility (“Wabash Valley”). He brought this action pro se under 42 U.S.C. § 1983 against three doctors who provided him medical care at Wabash Valley; their employer, Corizon, Inc.; and the Warden of Wabash Valley, Richard Brown. He alleges that the defendants provided him deficient medical care for his Hepatitis C and End-Stage Liver Disease in violation of the Eighth Amendment. He seeks monetary damages and injunctive relief. The Court recruited counsel to represent Mr. Niksich and engaged a neutral medical expert under Federal Rule of Evidence 706 to aid the Court in understanding the medical evidence and Mr. Niksich's medical treatment.

         Presently pending are the defendants' motions for summary judgment, one by Drs. Benjamin Loveridge, Samuel Byrd, and Richard Hinchman, [1] and Corizon (the “Medical Defendants”), and a second by Warden Brown. For the reasons explained below, the Medical Defendants' motion for summary judgment is granted in part and denied in part, and Warden Brown's motion for summary judgment is granted.

         I. Summary Judgment Legal Standard

         Summary judgment is appropriate when the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). A “material fact” is one that “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If no reasonable jury could find for the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 380 (2007).

         To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Barbera v. Pearson Education, Inc., 906 F.3d 621, 628 (7th Cir. 2018). The Court cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Johnson v. Advocate Health & Hospitals Corp., 892 F.3d 887, 893 (7th Cir. 2018).

         II. Background

         The following factual background is drawn from the undisputed evidence submitted by the parties. Many of the facts that follow are disputed. The Court notes some of these disputes, but whether noted or not, the facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

         Mr. Niksich has been an inmate with the Indiana Department of Correction since 1990. Filing No. 152-1 at 1. He was diagnosed with Hepatitis C that same year. Id. On November 28, 2012, Mr. Niksich's liver failed due to his Hepatitis C and advanced cirrhosis. Id. at 2. Mr. Niksich had, and continues to have, End-Stage Liver Disease (“ESLD”). Filing No. 144-1 at 2. After his liver failed, he was in a coma and hospitalized for seven days. Filing No. 152-1 at 2. When he regained consciousness, he was told by a Corizon physician that his ESLD was terminal. Id. ESLD can only be cured by a liver transplant.[2] Filing No. 144-1 at 2.

         A. Mr. Niksich's Treatment at New Castle by Defendant Dr. Loveridge

         Mr. Niksich was transferred to New Castle Correctional Facility (“New Castle”) in 2014, where he was under the care of defendant Dr. Loveridge until May 2015. Filing No. 152-1 at 2. During this time, Mr. Niksich was enrolled in the Chronic Care Clinic, which meant he was evaluated every 90 days by a medical provider and regularly underwent lab work to monitor his liver functioning and health. Filing No. 144-2 at 2.

         In 2014, Mr. Niksich was experiencing abdominal pain. Dr. Loveridge prescribed several different pain medications to Mr. Niksich with varying success. First, Dr. Loveridge prescribed Ultram, but it made Mr. Niksich nauseous and upset his stomach. Filing No. 152-1 at 2. Next, Dr. Loveridge prescribed Tylenol 3, but it was ineffective. Id. Dr. Loveridge then prescribed Norco 7.25/325, which was effective for three or four months. Following a conversation with Corizon's then Regional Medical Director regarding Mr. Niksich's pain, Dr. Loveridge prescribed morphine, [3] which was effective in controlling Mr. Niksich's pain. Id. at 3.

         During this period, Mr. Niksich asked Dr. Loveridge to schedule a consultation with a hepatologist or gastroenterologist (“GI”) to determine why he was experiencing abdominal pain and how it should be treated, but Mr. Niksich's requests were denied. Id. Dr. Loveridge was approached by Nurse Perkins in May 2014 regarding Mr. Niksich. Filing No. 144-2 at 4. After reviewing Mr. Niksich's record, Dr. Loveridge advised Nurse Perkins that a consultation with a GI specialist was indicated, and Nurse Perkins submitted the request. Id. Corizon's then Regional Medical Director, Dr. Michael Mitcheff (who is not a defendant), suggested an alternative treatment plan, and Mr. Niksich was informed that he did not qualify for a GI specialist. Id. Nevertheless, Dr. Loveridge attests that the treating medical provider can always schedule a consultation with an outside specialist if he or she thinks that is best. Id. Once Dr. Loveridge began personally overseeing Mr. Niksich's care, he examined Mr. Niksich and determined that a GI consultation was unnecessary. Id. at 5.

         In March 2015, Mr. Niksich's lab results showed, among other things, that Hepatitis C was “detectable at large levels in Mr. Niksich's body, ” so Dr. Loveridge determined Mr. Niksich should be considered for Hepatitis C treatment. Filing No. 144-2 at 11. He initiated the process for determining whether Mr. Niksich was a candidate for Hepatitis C treatment, which begins with an abdominal ultrasound. Id. It was shortly after he initiated this process, in late March 2015, when Dr. Loveridge, after consulting the Regional Medical Director, determined that Mr. Niksich should be prescribed morphine because his current pain medication was ineffective. Id.

         In early April 2015, Dr. Loveridge conducted the next step in testing to determine if Mr. Niksich was eligible for Hepatitis C treatment. Id. Mr. Niksich also informed Dr. Loveridge that the morphine was helping with his pain. Id. at 12. On April 22, 2015, after further testing, Dr. Loveridge discussed with Mr. Niksich the risks and benefits of treating his Hepatitis C. Id. Mr. Niksich consented to receive Hepatitis C treatment, and Dr. Loveridge submitted a request for the treatment that day. Id.

         Dr. Loveridge continued to order the necessary screening tests before Mr. Niksich could begin Hepatitis C treatment. Id. at 12-13. Dr. Loveridge renewed Mr. Niksich's morphine on May 14, 2015. Mr. Niksich was transferred from New Castle to Wabash Valley on May 29, 2015, before he began his Hepatitis C treatment, and Dr. Loveridge had no further involvement in Mr. Niksich's medical care.

         B. Mr. Niksich's Treatment at Wabash Valley

         1. Mr. Niksich's Treatment by Defendant Dr. Byrd

         When Mr. Niksich was transferred to Wabash Valley, he was placed under the care of defendant Dr. Byrd and other medical providers. Mr. Niksich was transferred with several prescriptions, including one for morphine. Filing No. 144-4 at 2-3. Dr. Byrd examined Mr. Niksich on June 5, 2015, in the Chronic Care Clinic and notified him that he had been approved for the Hepatitis C treatment of Harvoni and Ribavirin. Id. at 3. Dr. Byrd requested those drugs that same day. Id. Three days later, on June 8, 2015, Mr. Niksich began his twelve-week Hepatitis C treatment.[4] Id.

         For the next few months, Dr. Byrd periodically evaluated how the Hepatitis C treatment was working. Id. at 4-5. On September 8, 2015, Mr. Niksich received his final doses of Harvoni and Ribavirin. It was later confirmed that the treatment had cured Mr. Niksich of Hepatitis C. Id. at 7.

         According to the defendants, once Mr. Niksich had completed his Hepatitis C treatment, Dr. Neil Martin determined that Mr. Niksich needed to begin tapering his pain medications, so Dr. Martin ordered a reduced dosage of morphine. Filing No. 144-4 at 18; Filing No. 144-3 at 157-59. Mr. Niksich attests that Dr. Martin never examined him. Filing No. 152-1 at 4.

         On September 10, Mr. Niksich spoke with Dr. Byrd while Mr. Niksich was visiting the eye clinic and x-ray clinic (although Dr. Byrd disputes that this interaction occurred). Id. Mr. Niksich complained about his lack of pain medication-specifically that he wanted to go back on morphine-and asked to see a hepatologist, but Dr. Byrd denied his requests. Id. Five days later, on September 15, 2015, Mr. Niksich felt dizzy and nauseous, experienced abdominal pain, and was urinating blood. Filing No. 152-1 at 3. Dr. Byrd ordered x-rays, believing the pain to be kidney pain, prescribed antibiotics, and discontinued Mr. Niksich's morphine prescription.[5] Id. Three days later, on September 18, 2015, Dr. Martin prescribed Tylenol 3 for five days to relieve Mr. Niksich's pain from kidney stones.[6] Id. at 4.

         Over the next several months, Mr. Niksich continued to experience abdominal pain and complained to Dr. Byrd and other medical staff about his pain, including on October 16, 2015; November 19, 2015; December 2, 2015; December 18, 2015; January 7, 2016; and January 22, 2016.[7] Id. As detailed further below, Mr. Niksich did not receive any pain medication during this period.

         At an October 16, 2015, appointment, Mr. Niksich complained about continuing to urinate blood, but Dr. Byrd denied Mr. Niksich's request to see a hepatologist. Id. Mr. Niksich again complained to Dr. Byrd about abdominal pain during his appointment on November 19, 2015, as he did during all of his appointments. Id. at 5. Contrary to Dr. Byrd's evidence, however, Mr. Niksich never stated that he wanted to remain off opiate therapy.[8] Id.

         At his December 2, 2015, appointment, Mr. Niksich repeated his request to see an outside specialist because he was still urinating blood and had low while blood cell and platelet counts. Id. Dr. Byrd denied the request, stating that Mr. Niksich needed a liver transplant, or he would not live much longer. Id. Mr. Niksich also reiterated that he continued to experience abdominal pain and requested pain medication. Id. Contrary to Dr. Byrd's testimony, Mr. Niksich attests that he did not prefer to remain off opiate pain medication, nor did he express satisfaction with the treatment plan. Id.

         Approximately two weeks later, on December 18, 2015, Mr. Niksich again complained to Dr. Byrd about abdominal pain, but Dr. Byrd insisted that the pain was in Mr. Niksich's back. Id. Dr. Byrd told Mr. Niksich he would not prescribe any pain medication for Mr. Niksich's abdominal pain. Id.

         Dr. Byrd saw Mr. Niksich again on January 22, 2016. Mr. Niksich continued to complain of abdominal pain and urinating blood. Id. Mr. Niksich renewed his request to see a hepatologist or another specialist to determine why his pain and symptoms persisted. Id. at 6. Dr. Byrd informed Mr. Niksich that Corizon's then Regional Medical Director, defendant Dr. Hinchman, would not permit referral to a specialist. Id.

         On February 4, 2016, Mr. Niksich submitted two healthcare request forms. Filing No. 144-3 at 197-98. One asked whether he was scheduled to see a specialist to evaluate him for a liver transplant, and the second stated he was experiencing abdominal pain and needed pain medication. Id. Medical providers responded that he was scheduled for an appointment. Id.

         Dr. Byrd evaluated Mr. Niksich on February 10, 2016, due to Mr. Niksich's complaints of abdominal pain. Dr. Byrd was “puzzled” by Mr. Niksich's continued complaints of abdominal pain because Mr. Niksich did not “seem to carry a lot of fluid for Ascites to account for abdominal pain, ” nor should Hepatitis C cause any pain since Mr. Niksich was cured. Id. at 201. Dr. Byrd noted that “unfortunately” Mr. Niksich was treated with morphine in the past, which Dr. Byrd told Mr. Niksich “seemed to be a drastic measure” given that he needs to know if there is a spike in abdominal pain “due to his high risk of [spontaneous bacterial peritonitis].” Id. Dr. Byrd suggested that Mr. Niksich purchase Tylenol from the commissary to treat his abdominal pain. Id.

         Mr. Niksich repeated his request to see a specialist to Dr. Byrd on February 19, 2016, because he was still urinating blood and experiencing abdominal pain. Filing No. 152-1 at 6. But Dr. Byrd again denied his request. Id.

         Mr. Niksich filled out a healthcare request form on March 10, 2016, because he was experiencing abdominal pain and requested pain medication. Filing No. 144-3 at 221. Specifically, he requested an appointment with Dr. Byrd, stating “I am still having abdominal pain[.] I would like pain medication renewed but know you will not do it.” Id. Nursing staff could not provide him any treatment other than referring him to Dr. Byrd, who did not see him that day. Filing No. 152-1 at 6.

         Two days later, on March 12, 2016, Mr. Niksich was evaluated by nursing staff. He informed them that he has been having abdominal pain “for a long period of time” and that morphine helped his pain. Filing No. 144-3 at 223. He further stated that some days the pain is “unbearable and other days it isn't as bad.” Id. Mr. Niksich was sent back to his cell without any additional pain medication. Dr. Byrd attests that he was not made aware of this complaint at the time. Filing No. 144-4 at 14.

         Mr. Niksich submitted another healthcare request form on March 21, 2016. He requested an appointment with Dr. Byrd, stating: “Dr. Byrd again I am requesting that you represcribe my pain medication, that you took me off. I am having abdominal pain, as in the past. . . . This is an ongoing issue and it is not getting better. [P]lease renew my pain medication prescript[ion].” Filing No. 144-3 at 225. On March 23, 2016, Mr. Niksich was dizzy, nauseous, urinating blood, and had abdominal pain. Filing No. 152-1 at 6. He was taken to Terre Haute Regional Hospital to receive treatment. Id.

         Mr. Niksich had returned to Wabash Valley by April 1, 2016. Dr. Byrd examined Mr. Niksich that day due to continued complaints of abdominal pain. Filing No. 144-3 at 234. Dr. Byrd's evidence reflects that he convinced Mr. Niksich to hold off on opiate pain management “as long as [Mr. Niksich] is assured this is an option given his terminal state.” Id. Contrary to Dr. Byrd's evidence, Mr. Niksich attests that he did not did not agree to hold off receiving pain medication. Filing No. 152-1 at 6. Dr. Byrd also noted that, “given [Mr. Niksich's] terminal state, a request for opiate treatment would be reasonable, however this will have to be evaluated/approved by [the Regional Medical Director].” Filing No. 144-3 at 237.

         Three weeks later, on April 22, 2016, Dr. Byrd examined Mr. Niksich who complained of abdominal pain. Dr. Byrd noted that Tylenol, Tylenol 3, and Tramadol (Ultram) have not provided pain relief for Mr. Niksich in the past, but that morphine had “successfully treated” his pain. Filing No. 144-3 at 243. Nevertheless, Dr. Byrd stated that morphine seemed like a drastic measure given the risk of spontaneous bacterial peritonitis. Id. Dr. Byrd stated further that pain management would be “at the discretion of the [Regional Medical Director] given [his] complete lack of experience with such cases.” Id. Contrary to Dr. Byrd's evidence, Mr. Niksich attests that he did not agree to hold off on pain management during that appointment. Id.

         Five days later, on April 27, 2016, Mr. Niksich submitted a healthcare request form stating, “Dr. Byrd what is happening with my pain medication prescriptions that we discussed on 4/22/16.” Filing No. 144-3 at 247. The next day, on April 28, 2016, a medical provider responded that the “request [was] sent for approval.” Id. Also, on April 28, 2016, Dr. Byrd emailed the then Regional Medical Director, Dr. Kuenzli, requesting “any suggestions” regarding Mr. Niksich's pain management. Id. at 250. Dr. Kuenzli replied with “concerns about using” morphine, so suggested starting with Norco. Id.

         This was the first time Mr. Niksich was prescribed pain medication in more than six months.

         On May 2, 2016, Mr. Niksich was dizzy, nauseous, feverish, experiencing abdominal pain, and urinating blood, which made it impossible for him to get out of bed. Filing No. 152-1 at 7. Mr. Niksich's cellmate, Dale Fugate, informed a correctional officer that Mr. Niksich needed to go to the infirmary. Id. Medical staff told the correctional officer that he needed to fill out a healthcare request form before receiving treatment, but Mr. Niksich was too sick to do so. Id. The correctional officer called the infirmary again, and he was again instructed to have Mr. Niksich fill out a healthcare request form. Id. Despite these instructions, the correctional officer took Mr. Niksich to the infirmary due to his dire health condition. Id. Mr. Niksich was then taken to Terre Haute Regional Hospital by ambulance, where he received treatment for three days. Id.

         Mr. Niksich returned to Wabash Valley on May 6, 2016, and was discharged from the infirmary the next day. Filing No. 144-4 at 17. When discharged, Dr. Byrd told Mr. Niksich that Dr. Hinchman had denied the request to be evaluated for a liver transplant. Filing No. 152-1 at 7. According to Dr. Byrd's evidence, Mr. Niksich complained about the low dose of Norco he was receiving, but Mr. Niksich disputes this, asserting that he did not complain about receiving Norco generally because he was happy to be receiving any pain medication. Filing No. 152-1 at 7.

         Mr. Niksich continued to complain to Dr. Byrd regarding abdominal pain and requesting more effective pain medication over the next few months. Mr. Niksich submitted two health care request forms on May 10 and May 14, 2016. The first requested morphine because Mr. Niksich believed the doctors from the hospital prescribed it for him. Filing No. 144-3 at 330. The second requested an appointment with Dr. Byrd, stating that “[t]he Norco does not work for the pain I am having, ” and he again requested morphine. Id. at 331.

         Dr. Byrd saw Mr. Niksich on May 20, 2016, for complaints of abdominal pain. Id. at 332. Dr. Byrd said he would discuss pain management with Dr. Kuenzli again “given lack of improvement with Norco.” Id. at 334. Mr. Niksich submitted additional healthcare request forms on June 1 and June 9, 2016. Id. at 335-37. He first requested information about the possibility of a liver transplant and stated to Dr. Byrd that “[t]he Norco 5mg does not work for my abdominal pain. We discussed this at our last visit and you said you would suggest changing my pain medication back to morphine.” Id. Then, on June 9, Mr. Niksich informed Dr. Byrd that “[t]he Norco pain medication does not work for [my] abdominal pain” and it needed “to be increased or switched to [morphine] as I was taking from February 2014 until September 23[, ] 2015 when Dr. Byrd refused to renew [the] prescription. . . . Please . . . renew my prescription for [morphine].” Id. at 337. Mr. Niksich submitted further healthcare requests regarding the ineffectiveness of his pain management for his abdominal pain on June 15 and June 26, 2016. Id. at 339, 346.

         There is no evidence that Dr. Byrd provided Mr. Niksich with any pain medication from October 2015 through April 2016, when Dr. Byrd eventually prescribed Norco through Dr. Kuenzli. The Court is surprised-and concerned-that the Medical Defendants did not present any evidence, let alone mention, that Dr. Byrd was unable to dispense controlled substances during the time he was treating Mr. Niksich and explain what, if any, protocols were in place given this restriction. This is especially true given that Mr. Niksich directly raised this concern at the outset of this action by submitting with his Complaint documents (that the Medical Defendants do not dispute are authentic) that reflect that Dr. Byrd surrendered his controlled substance license to the Drug Enforcement Agency (“DEA”), see Filing No. 2-1 at 2-3, and raised it again in response to an interrogatory later in the case, see Filing No. 146-1 at 4 (Mr. Niksich's response to defendant Richard Brown's second interrogatory, which states that Richard Brown allowed Dr. Byrd to treat Mr. Niksich's severe pain even though “Dr. Byrd was unable to prescribe prescription pain killers”).

         The Court takes judicial notice of a declaration Dr. Byrd filed in Perkins v. Byrd, No. 2:15-cv-336-WTL-MJD, Filing No. 34-1 at 3. See Parungoa v. Community Health Sys., Inc., 858 F.3d 452, 457 (7th Cir. 2017) (“Courts may take judicial notice of court filings and other matters of public record when the accuracy of those documents reasonably cannot be questioned.”). In Perkins, Dr. Byrd acknowledged that he “voluntarily surrender[ed] [his] privileges to dispense controlled substances for three years.” See id., Filing No. 25-1 at 2-3 (documents dated February 3, 2015, wherein Dr. Byrd voluntarily surrendered his license with the federal DEA that permitted him to prescribe controlled substances); see also Filing No. 2-1 at 2-3. Dr. Byrd attested in Perkins that his inability to prescribe controlled substances has no impact on his patients because they can receive medications through another doctor at the facility. Id., Filing No. 34-1 at 3. But he also noted that “from September to October 2015” he was “the only on-site medical doctor, ” so he “referred patients who might have a need for controlled substances to the Regional Medical Director.” Id.

         2. Mr. Niksich was Referred to Indiana University's Transplant Team

         Mr. Niksich filed this action on June 8, 2016, approximately a month after Dr. Byrd told Mr. Niksich that Dr. Hinchman had denied the request to be evaluated for a liver transplant. Filing No. 152-1 at 7. Nevertheless, at an indeterminate time in “early June of 2016, ” Dr. Byrd referred Mr. Niksich to the Hepatitis C Treatment Committee (made up of medical providers throughout the Indiana Department of Correction, including Dr. Hinchman), which determined that “Mr. Niksich's case should be referred directly to IU Health Transplant Team.” Filing No. 144-1 at 5. IU Health Transplant Team is the only entity in Indiana that performs liver transplants. Id. Dr. Hinchman directed Dr. Byrd to complete the referral by sending the necessary paperwork and requesting an appointment. Id. Still in June 2016, Mr. Niksich's most recent lab results and medical records were sent to the IU Health Transplant Team.[9] Id.

         On July 18, 2016, the IU Health Transplant Team denied Mr. Niksich's transplant referral without having examined him. In short, the letter denying eligibility stated that Mr. Niksich's incarceration renders him ineligible for a liver transplant because incarceration does not “lend[] itself to the necessary support system or controlled environment” necessary to ensure proper recovery from a liver transplant. Filing No. 144-3 at 355. However, the letter stated that medical providers at Wabash Valley should let them know if they “could assist in contacting other transplant programs who might have different candidate criteria.” Id.

         3. Mr. Niksich's Treatment by Dr. Mary Chavez

         Beginning on or around July 6, 2016, Mr. Niksich was seen by Dr. Mary Chavez (who is not a defendant) instead of Dr. Byrd. He continued to complain about abdominal pain and the ineffectiveness of Norco to Dr. Chavez. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.