Eugene Devbrow v. Eke Kalu
2013 U.S. App. LEXIS 2249
| 7th Cir. | 2013Background
- Devbrow, a prisoner, had a history of elevated PSA and later cancer risk noted in 1998 and 2000.
- In February 2004, prison doctors found elevated PSA; urology consultation was denied by a supervisor.
- An on-site ultrasound and repeated testing occurred; no biopsy was ordered until April 2005.
- The biopsy in April 2005 showed precursor lesions; a second biopsy in September 2005 confirmed cancer.
- Cancer diagnosed October 21, 2005; metastasis to the spine discovered December 16, 2005, limiting treatment.
- Devbrow sued in October 2007 for deliberate indifference under § 1983; district court held two-year statute of limitations began April 27, 2005.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual timing for §1983 medical-deliberate-indifference claims | Accrual begins when injury and its cause are known (discovery rule). | Accrual begins at the point of referral/diagnostic action (April 2005). | Accrual when plaintiff knows physical injury and its cause; timely here. |
| Continuing-violation doctrine applicability to medical-deliberate indifference | Heard v. Sheahan supports continuing violation delaying accrual. | Heard applies only to ongoing injuries; not here. | Heard does not apply; accrual not delayed by continuing-violation theory. |
| Relation of metastasis and accrual date | Injury disclosed with cancer diagnosis and metastasis awareness. | Accrual may begin earlier at misdiagnosis stage (April 2005). | Accrual no earlier than October 21, 2005 (cancer diagnosis), possibly December 16, 2005; suit timely. |
Key Cases Cited
- Richards v. Mitcheff, 696 F.3d 635 (7th Cir. 2012) (applies medical-injury accrual rule for §1983 deliberate indifference)
- Wallace v. Kato, 549 U.S. 384 (S. Ct. 2007) (accrual principles for §1983 align with when injury and its cause are known)
- United States v. Kubrick, 444 U.S. 111 (S. Ct. 1979) (foundational medical-malpractice accrual rule for discovery)
- Goodhand v. United States, 40 F.3d 209 (7th Cir. 1994) (accrual and discovery principles for medical-injury claims under FTCA)
- Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001) (continuing-violation doctrine in jail medical-delay context)
- Sellars v. Perry, 80 F.3d 243 (7th Cir. 1996) (action accrues when injury known, not on later speculative harms)
- Matson v. Burlington Northern Santa Fe R.R., 240 F.3d 1233 (10th Cir. 2001) (last-injury rule cited in continuing-violation discussion)
- Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (S. Ct. 2007) (discussion of evolving statutory interpretation (not controlling here))
- National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (S. Ct. 2002) (statutory time-bar considerations in discrimination claims context)