REPORT AND RECOMMENDATION

DONALD G. WILKERSON, Magistrate Judge.

Pending before the Court is a Motion for Summary Judgment filed by Defendant Venerio Santos (Doc. 95). For the following reasons, it is hereby RECOMMENDED the Court DENY the Motion for Summary Judgment and adopt the following findings of fact and conclusions of law.

FINDINGS OF FACT

Plaintiff Willie Davis has suffered from sickle cell disease since childhood. As a result of his sickle cell, Davis also suffers from avascular femoral necrosis, a medical condition that causes extreme pain in the hips and can necessitate hip replacement surgery (Doc. 1, p. 5). While at Centralia Correctional Center, Davis was treated by Defendant Venerio Santos, who he alleges was deliberately indifferent to his serious medical condition (Doc. 5, p. 3).

Santos has been the Medical Director at Centralia Correctional Center since 2011 (Doc. 96-2, 14:14-16). Santos treated Davis for persistent hip pain from at least May 16, 20111 (Doc. 96-2, 75:9-18). In his deposition, Santos admitted that given Davis' sickle cell anemia, one of the differential diagnosis for hip pain is avascular necrosis (Doc. 96-2, 69:2-6). The way to rule out avascular necrosis is through a physical examination and blood test (Doc. 96-2, 69:12-15). In a physical exam the physician is looking for tenderness, swelling and limited range of motion (Doc. 96-2, 69:12-15, 70:20). Santos, however, did not do a physical examination of Davis' hip at the May 16, 2011 appointment despite recognizing Davis was "having tremendous hip pain" and prescribing him a quad cane to help him walk (Doc. 96-2, 76:6-24). During subsequent appointments, Santos prescribed Davis a series of different pain medications including Motrin, Acetaminophen, Vicodin, Lortab, Hydrocodone (opioid) and MS Contin (controlled-release morphine) (Doc. 96-2, 77:9-80:19). All of these medications ultimately failed to control Davis' pain (Doc. 96-2, 77:9-80:19).

It was not until September 19, 2012, that another doctor ordered x-rays of Davis' hip (96-3, p. 15). The x-rays revealed moderate osteoarthritis and "possible avascular necrosis of the left femoral head" (Doc. 96-3, 16). Santos was approved for a referral to Dr. Alan Froehling, an orthopedic surgeon, for a consult (Doc. 96-3, p. 18). Dr. Froehling testified that when he saw Davis in February of 2013, his medical opinion was that the only reasonable treatment option was a total left hip arthroplasty (Doc. 96-5, 16:3-12). He relayed that recommendation back to the correctional facility in a letter dated February 8, 2013 (Doc. 96-5, 16:11-23; 96-3, p. 26). That letter also documented that Davis had been experience hip pain for two years and indicated that Davis' right hip was becoming problematic (Doc. 96-3, p. 26).

In his deposition, Dr. Santos testified that to obtain medical services off site, the request had to go through a process called collegial review (Doc. 96-2, 23:11-18). The medical records show Dr. Santos requested a collegial review of Mr. Davis' case in order to obtain approval for a hip replacement in February of 2013, but the surgery was denied (Doc. 96-3, pp. 57-58). Instead, it was recommended Davis be treated with biophosphonates (Doc. 96-3, p. 30). Because Davis' disease had progressed to Stage IV, however, Santos testified he believed to a reasonable degree of medical certainty that biophosphonates would not help Davis (Doc. 96-2, pp. 31, 35, 36). Rather, it was his medical opinion the only thing that would relieve Davis' hip pain was a total hip arthroplasty or replacement (Doc. 96-2, p. 85).

Santos appealed the original denial of surgery, and when that failed, submitted a second request for surgery on April 25, 2013 (Doc. 96-2, 81:4-82:23). When the surgery was again denied, Santos submitted additional appeals until surgery was finally approved on November 13, 2013 (96-3, pp. 37, 39, 57 and 65). However, by this time Davis' condition had developed to "advanced" avascular necrosis of both hip joints (Doc. 96-3, pp. 53, 57-58).

Although finally approved, Davis never actually received the surgery while incarcerated. The surgeon he was originally referred to, Dr. Froehling, cancelled Davis' surgery believing he needed to be treated at a specialized hospital by a surgeon who had experience dealing with sickle cell anemia and avascular necrosis (Doc. 96-2, 42:19-43:2). Santos admitted in his deposition he made no attempt to find someone with that experience and did not discuss those issues with either of the two other surgeons contacted (Doc. 96-2, pp. 49:13-51:7).

The second surgeon, Dr. Otto, noted that by the time he saw Davis in January of 2014, he had avascular necrosis in both hips (Doc. 96-4, p. 17). He raised concerns about the possibility of multiple hospitalizations and the risk of infection due to Davis' institutionalization, and stated in his report he would investigate the feasibility of performing the procedures given his incarceration (Doc. 96-4, p. 18). Yet, Santos admitted he never spoke with Dr. Otto about the fact that extended hospitalization could be approved or that the prison has an infirmary that provided a clean area where there would be no increased risk of infection (Doc. 96-2, 51:18-21, 53:4-22).

Finally, although there is some evidence that a referral was made to a third surgeon, Dr. MacDonald,2 that physician never saw Davis or conducted a physical exam (Doc. 96-2, 54:17-20). There is no evidence any medical records were sent to Dr. McDonald (Doc. 96-2, 55:10-13), and Santos never spoke with MacDonald at all (Doc. 96-2, 54:14-55:21).

LEGAL STANDARD

Summary judgment is proper only if the moving party can demonstrate there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). Any doubt as to the existence of a genuine issue of fact must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Lawrence v. Kenosha Cnty., 391 F.3d 837, 841 (7th Cir. 2004).

A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Carett, 477 U.S. 317, 323 (1986). A party asserting that a fact is genuinely disputed must support that assertion by citing to particular materials in the record or by showing that the materials in the record do not establish the absence of a genuine dispute. Fed. R. Civ. P. 56. If the non-moving party does not show evidence exists that would reasonably allow a fact-finder to decide in their favor on a material issue, the court must enter summary judgment against them. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

The Seventh Circuit has stated summary judgment is "the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)).

CONCLUSIONS OF LAW

The Supreme Court has recognized that deliberate indifference to the serious medical needs of prisoners may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on a claim for deliberate indifference to a serious medical need, however, there are "two high hurdles, which every inmate-plaintiff must clear." Dunigan ex rel. Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). First, the plaintiff must demonstrate he suffered from an objectively serious medical condition. Id. at 591-92. Here, Defendants do not contest that Davis' sickle cell disease and avascular femoral necrosis qualify as serious medical conditions. That element is therefore conceded for purposes of summary judgment.

The second element a plaintiff must establish is that the individual prison officials were deliberately indifferent to that medical condition. Id. Proving deliberate indifference is difficult because prison medical professionals are entitled to deference unless no minimally competent professional would have responded similarly under the same circumstances. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014). Accordingly, a plaintiff must show more than simple medical malpractice. Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016).

Disagreement between a prisoner and his doctor, or even between two medical professionals, about the proper course of treatment is generally insufficient, by itself, to establish deliberate indifference. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). In other words, federal courts will not interfere with a doctor's decision to pursue a particular course of treatment unless that decision represents so significant a departure from accepted professional standards or practices that it calls into question whether the doctor was actually exercising professional judgment. Pyles, 771 F.3d at 409.

Doggedly persisting in a course of treatment known to be ineffective can qualify as deliberate indifference. Greeno v. Dailey, 414 F.3d 645, 655 (7th Cir. 2005) (citing Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir. 1990) (per curiam). Additionally, choosing an easier and less efficacious treatment rather than exercising professional judgment, can also constitute deliberate indifference. Petties v. Carter, 836 F.3d 722, 730 (7th Cir. 2016).

Direct Treatment of Davis

There is evidence upon which a jury could find Santos' treatment of Davis was deliberately indifferent. Santos was aware Davis was suffering extreme hip pain as early as May 16, 2011, when he prescribed him a quad cane (Doc. 96-2, 76:6-24). However, he did not conduct a physical exam or order any x-rays; which he testified were necessary to rule out avascular necrosis (Doc. 96-2, 69:12-15, 75:9-18, 76:6-24). During subsequent appointments, Santos prescribed Davis a series of different pain medications including Motrin, Acetaminophen, Vicodin, Lortab, Hydrocodone (opioid) and MS Contin (controlled-release morphine) (Doc. 96-2, 77:9-80:19). All of these medications ultimately failed to control Davis' pain (Doc. 96-2, 77:9-80:19). Regardless, it was not until another physician ordered x-rays on September 19, 2012 — sixteen months later — that Santos took any action to diagnose or treat Davis' avascular necrosis (96-3, p. 15). Thus, a jury could find that Santos' failure to conduct a necessary physical examination or order an x-ray, despite being aware that Davis was at risk of avascular necrosis, evidences deliberate indifference.

Further, Santos' decision to prescribe biophosphonates, despite believing such treatment would be ineffective, is sufficient for a jury to find he acted with deliberate indifference. Santos admitted in deposition he believed the only thing that would relieve Davis' hip pain was a total hip replacement (Doc. 96-2, p. 85). He further admitted he was aware of that fact as early as 2011 (Doc. 96-2, 85:1-4). Regardless, when the hip surgery Davis needed was denied, Santos prescribed biophosphonates despite the fact that Davis' condition had progressed to Stage 4, and he understood biophosphonates to only be helpful in Stages 1 and 2 (Doc. 96-2, 30:13-31:16). The Seventh Circuit has held that doggedly persisting in a course of treatment known to be ineffective can qualify as deliberate indifference. Greeno v. Dailey, 414 F.3d 645, 655 (7th Cir. 2005) (citing Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir. 1990) (per curiam). Thus, evidence exists upon which a jury could find that Santos' treatment of Davis with biophosphonates, which he knew were unlikely to be effective, constituted deliberate indifference to Davis' serious medical condition.

Obtaining Surgery — Medical Director

Santos has been the Medical Director at Centralia Correctional Center since 2011 (Doc. 96-2, 14:14-16). Although Davis' surgery was finally approved by Collegial Review, however, Santos never obtained the surgery for Davis while he incarcerated. Santos argues the failure to provide the surgery was not his fault, but rather the responsibility of the outside surgeons (Doc. 96, p. 14). Conversely, Davis argues Santos' failure to communicate with the outside surgeons in order to ensure the surgery was conducted, evidences deliberate indifference (Doc. 101, p. 170).

Santos claims he made referrals to three surgeons who all agreed the proposed surgery was potentially life threatening and therefore inappropriate (Doc. 96-6, ¶ 16). While it is true Dr. Froehling cancelled Davis' surgery, he did so because he believed the surgery needed to be done at a specialized hospital with a surgeon who had experience dealing with sickle cell anemia and avascular necrosis (Doc. 96-2, 42:19-43:2). Nowhere is it alleged he believed the surgery was unnecessary or too dangerous to perform. Further, despite Dr. Froehling's recommendation that Davis be treated by a surgeon familiar with sickle cell anemia and avascular necrosis, Santos admitted in his deposition he made no attempt to find someone with that experience and did not discuss those concerns with either of the two other surgeons contacted (Doc. 96-2, pp. 49:13-51:7).

The second surgeon, Dr. Otto, raised concerns about the possibility of multiple hospitalizations and the risk of infection due to Davis' institutionalization (Doc. 96-4, p. 18). Otto's report indicated he wanted to investigate the feasibility of performing the procedure given Davis' incarceration (Doc. 96-4, p. 18); he did not refuse to perform the surgery or make a medical finding that it was too dangerous. Santos admitted he never spoke with Dr. Otto about his concerns, the fact that extended hospitalization could be approved, or that the prison could place Davis in the infirmary where there would be no increased risk of infection (Doc. 96-2, 51:18-21, 53:4-22). A jury could find Santos' failure to follow up on Dr. Otto's concerns and to clarify the prison's capacity to address them, evidences deliberate indifference.

Finally, rather than undermining Davis' claim, the record regarding the referral to Dr. MacDonald supports a finding of deliberate indifference. Dr. MacDonald never saw Davis and never conducted a physical exam (Doc. 96-2, 54:17-20). There is no evidence any medical records were ever sent to him (Doc. 96-2, 55:10-13), and Santos never spoke with MacDonald at all (Doc. 96-2, 54:14-55:21). Thus, Dr. MacDonald's refusal to perform surgery on a patient he never saw and whose records he never reviewed, can hardly be considered evidence of the feasibility of such surgery. Further, Santos' failure to ensure Dr. MacDonald could perform an exam of Davis or received his records, could form the basis for a jury finding his actions were deliberately indifferent.

Thus, there is sufficient evidence upon which a jury could find Santos was deliberately indifferent to Davis' serious medical need for surgery to address his avascular necrosis, and summary judgment is inappropriate.

RECOMMENDATION

For the reasons stated above, it is RECOMMENDED the Court DENY Defendant Santos' Motion for Summary Judgment (Doc. 95) and the Court adopt the foregoing findings of fact and conclusions of law.

NOTICE REGARDING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen (14) days after service. Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v. Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).

You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge.