Haley, Nathan v. Feinerman, Adrian , 168 F. App'x 113 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 18, 2005
Decided February 24, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-3823
NATHAN HALEY, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Illinois
v.
No. 03:01-CV-574-WDS
DR. ADRIAN FEINERMAN
and DR. JAMES KRIEG, William D. Stiehl,
Defendants-Appellees. Judge.
ORDER
Nathan Haley brought suit under 42 U.S.C. § 1983 against two prison doctors
alleging that their deliberate indifference to his broken arm necessitated surgery to
re-break the arm and free a compressed nerve. The district court granted summary
judgment in favor of both doctors because it found no evidence that the doctors were
indifferent or disregarded Haley’s injury. Haley appeals arguing that the district
court improperly weighed the evidence. We affirm the district court’s judgment as
to both defendants.
On August 6, 2000, Haley broke his upper arm while playing touch football
with other inmates at Menard Correctional Center. Defendant Dr. James Krieg, a
doctor who worked in the prison infirmary, examined an x-ray of Haley’s arm the
No. 04-3823 Page 2
next day and observed that the bone was offset by two centimeters, and he treated
it with a “hanging cast” that allows gravity to pull the bones into alignment. A
week after the first examination, Dr. Krieg saw Haley again and noted that the
bone was still misaligned by one centimeter and that Haley complained his hand
was numb. Defendant Dr. Adrian Feinerman, Menard’s medical director, reviewed
Dr. Krieg’s notes two weeks after the injury occurred and called Dr. Jose Ramon, an
orthopedist, to discuss the fracture. They agreed, based on Dr. Krieg’s notes, that
the injury was a routine fracture and that any numbness was probably due to a
bruise. Dr. Ramon recommended using a sling in addition to the hanging cast to
help reduce movement. Haley remained in the cast for approximately five more
weeks. Dr. Krieg continued to examine Haley approximately once a week during
this period.
Several days after the cast was removed Haley returned to the infirmary
complaining of pain near the fracture. The nurses noted a “deformity” of the left
arm and that Haley could not fully extend his arm because of the pain. An x-ray
taken a week later revealed that the bone fracture had shifted two centimeters from
center. Dr. Krieg recommended that Dr. Feinerman consult with an orthopedist
about Haley’s injury. A week later (about ten weeks after the accident and two
weeks after the cast was removed) Haley met with Dr. Feinerman for the first time
to discuss Dr. Krieg’s recommendation. Dr. Feinerman made an appointment for
Haley to see Dr. Ramon, the orthopedist that Dr. Feinerman had already consulted
about Haley’s case.
Dr. Ramon examined Haley and recommended either surgery or use of a bone
stimulator to treat the bone’s faulty union. Although Haley originally chose the
bone stimulator, he changed his mind five days later when he learned that he would
need to be confined to the infirmary for four weeks. According to Dr. Feinerman’s
notes in Haley’s medical records, Dr. Feinerman again consulted with Dr. Ramon,
who changed his recommendation. He now recommended that Haley remain in a
sling for another three months with continuous monitoring. The medical records do
not explain why Dr. Ramon changed his recommendation.
Approximately one month later–over four months after the injury–Dr.
Feinerman examined Haley for the first time and could feel that the fracture was
still “unstable,” so he scheduled a second visit with Dr. Ramon. Several weeks after
that, Haley met with Dr. Ramon, who diagnosed Haley with an entrapped radial
nerve and recommended that a neurosurgeon examine Haley to evaluate the injury
for a surgery to re-break the arm and release the trapped nerve. Haley was
examined by several specialists, and finally underwent surgery four months
later–eight months after the initial injury.
Dr. Harvey Mirly, the doctor who performed the surgery, testified in an
No. 04-3823 Page 3
affidavit for Haley that there was an obvious deformity when he examined the arm
before surgery and that the operation was made more difficult by the degree of
“healing” that had occurred since the injury. Dr. Mirly’s affidavit did not state that
the increased healing or the deformity were the result of poor medical care. Haley
continued to complain of pain and numbness for nearly a year after the surgery.
Haley brought this action against Drs. Feinerman and Krieg. The doctors
filed a motion for summary judgment in which they argued, as relevant here, that
their actions refute Haley’s claim of deliberate indifference because Haley
underwent extensive medical treatment, was allowed to see a specialist, and that
the doctors followed the specialist’s advice. The district court agreed that Haley
received “comprehensive and ongoing care” for his injury, and that the allegations
“do not approach” a constitutional violation.
A district court’s entry of summary judgment is reviewed de novo with facts
read in a light most favorable to the non-moving party. Green v. Butler, 420 F.3d
689, 694 (7th Cir. 2005). To succeed on an Eighth Amendment claim, the prisoner
must demonstrate that the defendants were deliberately indifferent to a serious
medical condition. Farmer, 511 U.S. at 837; Pierson v. Hartley, 391 F.3d 898, 902
(7th Cir. 2004). Deliberate indifference is established when the plaintiff shows that
the medical condition from which he suffered is objectively serious and that
responsible prison officials knew of, but disregarded, the need for treatment. Id.The parties do not dispute that Haley suffered a serious medical condition.
The issue rather is whether the district court properly applied the subjective test
under Farmer v. Brennan, 511 U.S. 825, 837 (1994). Haley contends that the
doctors were aware that nerve damage was possible and that it could cause pain
and numbness, but ignored the risk and continued treatments that they knew were
ineffective. Moreover, he contends that because they pursued this course of action,
he required surgery to correct the improperly healed bone and suffered unnecessary
pain.
Haley believes this case is analogous to Sherrod v. Lingle, 223 F.3d 605 (7th
Cir. 2000), in which the court found that the prison medical staff showed deliberate
indifference to an inmate’s complaints of pain, which turned out to be the result of
an inflamed appendix. In Sherrod, the prisoner went to the infirmary complaining
of abdominal pain; the nurse gave him an enema and aspirin, both of which proved
ineffective. Id. at 608. The prisoner continued to complain of abdominal pain along
with other symptoms that the nurses recognized were consistent with appendicitis,
but he was never allowed to go to the hospital. Id. at 608-09. Eventually the
appendix burst. Id. We held that the prisoner was not required to show that he
was “literally ignored” by the medical staff. Id. at 610-12. He only needed to
No. 04-3823 Page 4
demonstrate that prison officials knew there was an excessive medical risk and
disregarded that risk. Id.Haley argues that, like the doctors in Sherrod, his doctors knew of the risk of
a serious medical condition–in this case a trapped nerve and a faulty union of the
bone–but did not take appropriate steps to correct the deformation. He contends
that treating the broken arm with a hanging cast, Motrin, and a sling was
equivalent to treating appendicitis with an enema and aspirin. As in Sherrod, the
doctors’ regular treatments failed to focus on a problem that ultimately developed
into a more serious (and painful) medical condition.
Haley attempts to appeal to common sense because the doctors must have
been deliberately indifferent if it took them eight months to determine that a broken
arm was not healing correctly, but he has not supplied any medical evidence to
support his position. Haley has the burden to designate specific facts that show
there is a genuine issue for trial. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); Fisher v. Lovejoy, 414 F.3d 659, 661 (7th Cir. 2005). Doctors
Feinerman and Krieg have offered the only evidence that addresses the proper
medical standards in this case. Haley simply has not provided evidence that creates
a material issue of whether the doctors were deliberately indifferent.
Haley complains that the eight-month delay between his injury and the
surgery in itself demonstrates deliberate indifference. But the only delay that could
be deemed unreasonable was the time between Dr. Ramon’s second recommendation
and the surgery that took place four months later (eight months after the injury)
because by then Dr. Feinerman was certainly aware of a serious medical
condition–the trapped nerve and misaligned bone–and the delay in treatment may
have been needless. And Dr. Mirly’s affidavit established that the delay caused
unnecessary “healing,” which resulted in a more difficult surgery. See Langston v.
Peters, 100 F.3d 1235, 1240 (7th Cir. 1996) (“[A]n inmate who complains that delay
in medical treatment rose to constitutional violation must place verifying medical
evidence in the record to establish the detrimental effect of delay in medical
treatment to succeed.” (emphasis in original) (quoting Beyerbach v. Sears, 49 F.3d
1324, 1326 (8th Cir. 1995)).
But the primary reason for this delay was that Haley was being evaluated in
preparation for surgery. During these four months, Feinerman scheduled
examinations by a neurosurgeon and another doctor who performed additional tests
that were recommended by the neurosurgeon. Dr. Mirly also examined the arm
prior to the surgery. Prisoners are not entitled to the best possible care, only
reasonable measures to meet a substantial risk of serious harm; we do not believe
this delay rose to the level of deliberate indifference. Forbes v. Edgar, 112 F.3d 262,
267 (7th Cir. 1997).
No. 04-3823 Page 5
To establish that Drs. Feinerman and Krieg were deliberately indifferent
Haley must demonstrate that they failed to act despite the knowledge of a
substantial risk of serious harm. Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir.
2002). Haley points to Dr. Mirly’s affidavit stating that there was “an obvious
deformity about the left humerus” at the time he operated on it as evidence that Drs.
Feinerman and Krieg should have been aware of a substantial risk. Haley also
points to Dr. Krieg’s notes early in the treatment stating that there was an “ulnar
neuropathy” as evidence that he knew the nerve was going to become trapped.
Neither Dr. Mirly’s affidavit nor Dr. Krieg’s notes support Haley’s position.
The fact that the deformity was obvious when Dr. Mirly operated on it does not
support the inference that Haley was improperly treated. Similarly, Haley has not
supplied evidence that the possible nerve damage that Dr. Krieg noted made a
trapped nerve the obvious and inevitable result. All the evidence shows is that Dr.
Krieg exercised his medical judgment to determine that a hanging cast would allow
the arm to heal properly. Cole v. Fromm, 94 F.3d 254, 260-61 (7th Cir. 1996)
(rejecting argument that medical staff must take precautions against all possible
risks). Moreover, Dr. Krieg’s medical judgment was fully supported by Dr.
Ramon–the orthopedic specialist. Haley produces no evidence that Drs. Feinerman
or Krieg failed to respond to an obvious injury, which is the standard required to
constitute deliberate indifference. Farmer, 511 U.S. at 837; Pierson, 391 F.3d at 902.
Haley also argues that there was no evidence that Dr. Feinerman consulted
with Dr. Ramon after Haley chose not to use the bone stimulator. We have held that
failing to follow specialists’ advice can be cruel and unusual. Jones v. Simek, 193
F.3d 485, 490 (7th Cir. 1999). But Haley’s medical record includes Dr. Feinerman’s
notes stating that Dr. Ramon recommended that Haley remain in a sling with
follow-up monitoring. Although it is not clear from the record why Dr. Ramon
changed his original recommendation, Haley did not supply any evidence to
contradict the medical record. Fed. R. Civ. P. 56(e); Walker v. Shansky, 28 F.3d 666,
670-71 (7th Cir. 1994). Haley cannot fault Dr. Feinerman for following the
recommendation of a specialist. Id.We AFFIRM the district court’s grant of summary judgment in favor of the
doctors.