DANA BROWN v. KURT OSMUNDSON, TERRY EDWARDS, and BRITANY BEARD (MILLER)
No. 21-1647
United States Court of Appeals For the Seventh Circuit
Argued June 2, 2022 — Decided June 27, 2022
Before EASTERBROOK, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges.
Appeal from the United States District Court for the Central District of Illinois. No. 17-cv-04284 — Jonathan E. Hawley, Magistrate Judge.
Brown sued three of the officials who cared for him in the prison’s hospital, alleging violations of his Eighth Amendment rights. The district court granted summary judgment for the defendants. We affirm. The prison medical staff did not act with the necessary deliberate indifference, a high bar under current precedent, toward Brown’s serious medical condition.
I. Background
While working in the prison’s bakery on February 20, 2017, Brown began experiencing abdominal pain, which he attributed to a preexisting hernia. The next day though, the pain had worsened. He could not bend down to take bread out of the oven, needing to rely on his coworker to cover his work. By the end of his shift, Brown was sweating profusely, was unable to leave his bed, and had to use a jug in his cell to urinate. Despite the pain, Brown decided to wait to consult medical personnel for two days, when he went to see Nurse Practitioner Britany Miller for an appointment he previously scheduled before his abdominal pain began.
At the appointment, Brown reported “back pain [at] nine out of ten on the pain scale with groin discomfort.” N.P. Miller believed that Brown had a problem with his right hernia. She prescribed some Ibuprofen, a hernia belt, and a “no work” permit for three days. Brown returned to his cell and
Nurse Terry Edwards saw Brown upon his arrival. Brown could not stand, was clutching his abdomen, complained of constant stabbing pain, which was a “ten out of ten,” and had an elevated blood pressure. His abdomen was “swollen and tender to the touch.” Nurse Edwards called Dr. Kurt Osmundson, who ordered that Brown be given an injection of pain medication, which did little to dull the pain, and placed him on 23-hour observation. The next day, a non-defendant nurse saw Brown, who still suffered from abdominal pain, and called Dr. Osmundson to report his condition. Dr. Osmundson formally admitted Brown to the infirmary and ordered a urinalysis, vital checks, and Motrin three times a day. On February 27, two days after Brown entered the prison’s medical wing, Dr. Osmundson examined Brown in-person and detected positive bowel sounds. He ordered an x-ray, regular vital checks, a painkiller, diet and activities as tolerated, an Accu-Chek, a blood count, a metabolic panel, and another urinalysis.1
Brown’s pain subsided briefly later that day, but by the evening, it had returned. Brown called for a nurse as he continued to vomit throughout the night in increasingly worrisome colors, such as “bright yellow with … brown colored flecks,” and his blood pressure started to spike. At midnight, one nurse observed that Brown’s abdomen appeared hard to
Brown brought suit under
II. Discussion
Brown contends that the defendants violated the Eighth Amendment’s Cruel and Unusual Punishment Clause by depriving him of necessary medical care. See
“The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit inhumane ones ….” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)); see also Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016) (en banc). Because depriving a prisoner of medical care serves no valid penological purpose, “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). To succeed on a deprivation-of-medical-care claim, a plaintiff must show that “(1) he had an objectively serious medical need (2) to which [the defendants] were deliberately indifferent.” Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 241 (7th
Deliberate indifference requires a look into the subjective state of the defendants’ mind. Wilson v. Adams, 901 F.3d 816, 820 (7th Cir. 2018) (quoting Petties, 836 F.3d at 728). A prison official acts with deliberate indifference only when he “actually [knows] of and disregard[s] a substantial risk of harm.” Dean, 18 F.4th at 241 (quoting Petties, 836 F.3d at 728). “This is a high bar ‘because it requires a showing [of] something approaching a total unconcern for the prisoner’s welfare in the face of serious risks.’” Rasho v. Jeffreys, 22 F.4th 703, 710 (7th Cir. 2022) (quoting Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012)). “[M]ere negligence” or even civil “objective recklessness” simply “is not enough.” Petties, 836 F.3d at 728; see also Farmer, 511 U.S. at 836–38. An “official’s failure to alleviate a significant risk that he should have perceived but did not … cannot … be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838. Moreover, medical malpractice “does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (“Deliberate indifference is not medical malpractice.”).
A plaintiff must provide evidence, either direct or circumstantial, to prove deliberate indifference. Petties, 836 F.3d at 728. Direct evidence, we have observed, is rarely forthcoming. Id. Prison officials do not typically proclaim that they violated
Brown has no direct evidence that any of the defendants were deliberately indifferent to his appendicitis. Instead, he relies on circumstantial evidence, arguing that a reasonable jury could find that the medical team inexcusably delayed treatment, continued in a course of ineffective treatment, and grossly violated the standard of care.
The claim against Dr. Osmundson ultimately falls short of the demanding standard for deliberate indifference. See Farmer, 511 U.S. at 838. “[D]elays are common in the prison setting with limited resources ….” Petties, 836 F.3d at 730. It is uncontested that appendicitis is difficult to diagnose; its symptoms mirror those of other abdominal ailments. Nurse Edwards first informed Dr. Osmundson of Brown’s condition on February 25, several days after he developed symptoms. Dr. Osmundson provided some care by prescribing pain killers and ordering Brown be placed on 23-hour observation. The next morning, a non-defendant nurse told Dr. Osmundson that Brown was still in “discomfort,” and Dr. Osmundson promptly admitted Brown into the infirmary. After the pain
Additionally, Brown has not presented evidence that Dr. Osmundson knowingly persisted in a course of ineffective treatment. See Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005). Throughout the three-and-a-half days, Dr. Osmundson gradually changed his treatment in response to Brown’s worsening symptoms. At first, he put Brown on painkillers and observation. When the situation did not improve, he admitted him into the infirmary for more monitoring, and the next day, he ordered imaging, vital checks, and a urinalysis. Brown’s condition still declined, so Dr. Osmundson examined him,
Nor did Dr. Osmundson administer care that was “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.” Cole, 94 F.3d at 261–62; see also Petties, 836 F.3d at 729 (“[E]vidence that some medical professionals would have chosen a different course of treatment is insufficient to make out a constitutional claim.”); Norfleet, 439 F.3d at 396 (“[T]he decision must be so far afield of accepted professional standards as to raise the inference that it was not actually based on a medical judgment.”); Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996) (“The Supreme Court‘s holding in Estelle that the Eighth Amendment does not constitutionalize medical malpractice implies that there will be cases in which treatment falls below acceptable standards that do not state a claim for constitutional purposes.”). Brown has furnished no evidence for his “substantial departure” assertion in the form of an expert opinion or otherwise. Dr. Osmundson treated Brown by gradually increasing monitoring and testing as his conditions worsened, and when necessary, he sent Brown to the hospital. At no point did Dr. Osmundson abandon his duties as a physician such that “no minimally competent professional would have so responded.” Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998).
Brown relies on Conley v. Birch, 796 F.3d 742, and Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000), to little avail. In Conley,
Sherrod is similarly distinguishable. See 223 F.3d 605. The prisoner there also suffered from appendicitis. Id. at 608. He requested assistance, first on March 9, 1995, but was never admitted for observation. Id. He returned two days later, and a nurse wrote “rule out appendicitis.” Again though, the prisoner was sent back to his cell despite complaints of abdominal pain and a lack of bowel activity. Id. On March 17, the doctor transferred him to the emergency room—at least eight days after his first symptoms. Id. at 609. The emergency-room doctor prescribed pain medication and a shot of a medication with orders to return for more testing, but the prison hospital staff at first refused to allow the prisoner to return for more
Brown may have received subpar care in the prison’s infirmary. Dr. Osmundson waited two days after Brown was wheeled into the prison’s medical wing to examine the patient in-person. After Brown vomited through the entire night, and a nurse described his abdomen as “hard” at one point, a symptom of appendicitis, Dr. Osmundson refrained from sending him to the hospital immediately, instead opting to continue the pain treatment and take x-rays six hours later. In the words of one physician, Dr. Osmundson’s decisions “led to … worsening of the patient’s outcome and a more complicated and dangerous surgical procedure with increased length of time for recovery and hospitalization.” Nothing in this opinion seeks to minimize Brown’s suffering. But medical malpractice is not a constitutional violation. McGee, 721 F.3d at 481. Brown has not provided sufficient evidence, whether direct or circumstantial, to prove that Dr. Osmundson “actually knew of and disregarded a substantial risk of harm.” Dean, 18 F.4th at 241 (quoting Petties, 836 F.3d at 728).
Turning to the nurses, we have little trouble concluding that N.P. Miller and Nurse Edwards did not act with deliberate indifference toward Brown’s serious medical needs. N.P. Miller only saw Brown once, on February 23, 2017, for an originally unrelated appointment. There, Brown discussed his recent symptoms, but given the fact that he suffered from a hernia before, N.P. Miller could reasonably think that diagnosis caused this pain as well. She also acted promptly, prescribing medication to alleviate his pain. Brown argues that a jury could infer deliberate indifference from her refusal to see Brown when she returned from her vacation on February 27. That contention reads too much into an alleged (overheard) conversation by Brown. N.P. Miller managed a large staff of nurses who regularly checked on Brown at the same time Dr. Osmundson was treating him as well. A lone decision to not to reevaluate Brown when others, including a physician, were attending to him does not rise to deliberate indifference.
Nurse Edwards, too, diligently cared for Brown. She wrote down his symptoms, checked his vitals, relayed necessary information to Dr. Osmundson, and performed her assigned duties. The advanced treatment required to manage appendicitis cannot be given, in most cases, by a nurse. Only Dr. Osmundson could make the important decisions on whether and how to treat Brown’s symptoms. Nurse Edwards could not override his judgment. Thus, she did not act with deliberate indifference either.
III. Conclusion
For these reasons, we affirm the judgment of the district court.
DANA BROWN v. KURT OSMUNDSON, TERRY EDWARDS, and BRITANY BEARD (MILLER)
No. 21-1647
United States Court of Appeals For the Seventh Circuit
First, the majority opinion describes Dr. Osmundson’s six-hour delay before examining Brown on February 28 as “minimal” and “not … excessive,” and contrasts that delay with the months-long delay at issue in Miller v. Campanella, 794 F.3d 878 (7th Cir. 2015) (two months) and Arnett v. Webster, 658 F.3d 742 (7th Cir. 2011) (ten months). But “the length of delay that is tolerable depends on the seriousness of the condition and the ease of providing treatment.” Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012) (citation omitted); see also Gillis v. Litscher, 468 F.3d 488, 492 (7th Cir. 2006) (citations omitted) (“Determining whether [a prisoner’s] constitutional rights have been violated [under the Eighth Amendment] requires a ‘fact-intensive inquiry under constitutional standards.’”). The cases the majority opinion highlights, Miller and Arnett, involved chronic conditions—gastro-esophageal reflux and rheumatoid arthritis, respectively. Brown’s case involves an acute condition—appendicitis, which the record reflects can worsen to near fatal levels in a matter of days.
In our cases involving acute conditions or emergency medical situations, we have held that a delay of mere days or even hours can qualify as deliberate indifference. One such example is the two-week delay in our other appendicitis case, Sherrod v. Lingle, 223 F.3d 605, 611–12 (7th Cir. 2000). See also Smith, 666 F.3d at 1040 (citations omitted) (“Even a few days’ delay in addressing a severely painful but readily treatable
In short, Brown’s appendicitis was an emergent issue that required defendants to act quickly, and a six-hour delay could run afoul of the Constitution depending on when the defendants ascertained the seriousness of the condition. Brown’s claim fails not because a six-hour delay is considered minimal under our caselaw, but because he does not supply sufficient evidence that Dr. Osmundson’s delay, no matter the length, was the result of deliberate indifference.
Second, Brown argues in his appellate brief that Nurse Edwards was deliberately indifferent because she failed to call Dr. Osmundson when Brown’s condition did not improve, especially during the critical early hours of February 28. Brown’s argument fails because it is undisputed that Nurse Edwards did call Dr. Osmundson at least once after examining Brown during this time, which in any event, was after another nurse took over Brown’s care.
The majority opinion states that Nurse Edwards could not provide the “advanced treatment required to manage appendicitis,” as that was in Dr. Osmundson’s purview, and she “could not override [Dr. Osmundson’s] judgment,” “[t]hus, she did not act with deliberate indifference.” But to be clear, a
I do not understand the majority opinion to be inconsistent with this rule about nurses. With that understanding, I join the opinion.