DIEGO GIL, Plaintiff-Appellant, v. JAMES REED, JAIME PENAFLOR, and UNITED STATES OF AMERICA, Defendants-Appellees.
No. 02-1823
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 3, 2003—DECIDED AUGUST 25, 2004
ROVNER, Circuit Judge. Diego Gil, a federal prisoner, sued a prison doctor, a physician‘s assistant and the United States for negligence, malpractice and deliberate indifference to his serious medical needs in violation of his Eighth Amendment rights. The district court declined his request for the appointment of counsel to assist him in his claims and subsequently granted summary judgment in favor of
I.
On review of this motion for summary judgment, we construe the facts in a light most favorable to Diego Gil, the party opposing judgment, and we draw all reasonable inferences in his favor. Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000). Gil is a prisoner at the Federal Correctional Institution at Oxford, Wisconsin (“FCI Oxford“) who suffers from a number of intestinal and colorectal illnesses. A description of his alleged symptoms, included below, is not for the squeamish. James Reed is a physician who serves as clinical director at FCI Oxford. Jaime Penaflor is a physician‘s assistant at that same facility. Some of Gil‘s medical problems predated the events that led to this lawsuit and we address them to give context to the issues.
Before arriving at FCI Oxford in 1994, Gil was incarcerated at the Metropolitan Correctional Center in Chicago (“MCC“). At the MCC, Gil required surgery for a bleeding ulcer. He later experienced rectal bleeding that resulted in a need for blood transfusions. When he was transferred to FCI Oxford, he informed medical staff there of his medical conditions. His medical file described his condition as hemorrhoids, but his symptoms were more severe than would be expected with hemorrhoids. After bowel movements, Gil had to push a large protuberance back into his body. In 1997, an outside specialist examined Gil and determined that he required surgery for hemorrhoids. Shortly thereafter, Gil began to experience additional symptoms, including pain on the right side of his abdomen and a sensation that there was a great pressure pushing outward in that area.
Eight months after the specialist determined that Gil needed surgery, he was taken to a local hospital for the recommended operation. The physician who examined him
In early March 1998, Gil had abdominal surgery to correct the prolapse and was later returned to his cell at FCI Oxford. After the surgery, Gil‘s condition worsened and he experienced severe pain in his lower abdomen. On March 20, 1998, Gil told the FCI Oxford medical staff about the pain that radiated from the area of his surgical incision around to his back and legs. A staff member characterized Gil‘s complaint as “non-urgent back pain” and a “misuse of emergency care.” The staff member, who was aware of Gil‘s recent major surgery, gave Gil a booklet on back exercises and told him to begin performing the exercises. On March 23, Gil returned to the medical unit complaining of pain, fever, chills, and a “bulge the size of a ping-pong ball” at the site of his surgical incision. The staff diagnosed an infection, lanced the bulge, and prescribed Tylenol III and an antibiotic. The physician assistant told Gil he should begin taking the antibiotic that same day and that both medications would be available at the medication line later that day.
The next morning, Gil returned to the medication line and picked up his prescription. It was labeled with the prior day‘s date. The antibiotic began to take effect within twenty-four hours and Gil reported that he was feeling better. He returned to the medical unit for three days so that the bulge could be lanced and the abscess drained. Although that crisis passed, Gil‘s overall condition continued to deteriorate. His rectal prolapse did not improve. After each bowel movement, he still had to painfully push a protruded portion of his rectum back into his body. He developed two hernias that compounded his discomfort.
On May 1, 2000, Gil returned to the hospital for a second surgery to correct the rectal prolapse. The first surgery had been performed through Gil‘s abdomen, but this second surgery was performed through Gil‘s rectum by a colorectal specialist, Dr. Michael Kim. After the surgery, Dr. Kim prescribed Vicodin for pain and Colace, Milk of Magnesia and Metamucil (all laxatives) to prevent fecal impaction. Dr. Kim specifically warned Gil that he should not take Tylenol
On May 5, 2000, Gil saw Reed again and complained of severe constipation. He had not had a bowel movement since the operation five days earlier, was experiencing severe abdominal pain and was having difficulty urinating. He was also bleeding from his rectum. Reed continued the prescription for Tylenol III and wrote a prescription for Milk of Magnesia which the prison pharmacy did not fill for another three days. On May 8, 2000, Gil received the Milk of Magnesia. The next day he was still constipated, bleeding from the rectum, in great pain and could not urinate. He made an appointment to see Reed but the doctor was unavailable at the scheduled time. Gil waited for an hour in the prison infirmary and then went back to his cell to address the bleeding, change his clothes and lie down.
On May 10, 2000, Gil returned to the infirmary. A different prison physician drained his bladder with a catheter and gave him two enemas for the constipation. This doctor discontinued the Tylenol III and gave Gil Motrin instead. The next day, Gil saw Dr. Kim, who was angry that his post-operative instructions had not been followed. He rewrote his original instructions and prescriptions. He again told Gil not to take any Tylenol III. Back at the prison, Reed told Gil that his prescriptions would be available that afternoon but when Gil went to the medication line, Penaflor provided
Gil sued the United States for violations of the
II.
We appointed counsel for Gil on appeal after determining that the assistance of counsel and oral argument would materially advance the issues presented on appeal. We asked counsel to brief the following issues in addition to any others that counsel deemed appropriate: (1) whether the district court abused its discretion in denying Gil‘s request for the assistance of counsel; (2) whether in granting summary judgment the district court erred in requiring Gil to produce expert testimony to proceed on his FTCA claim, either because expert testimony (a) was not required given the particular facts of Gil‘s medical malpractice claim for inadequate treatment after he was transferred from Chicago to Wisconsin; or (b) is not required for a negligence claim under Wisconsin state law that implicates prison employees’ duty to protect inmates in their custody from harm; and (3) whether Gil demonstrated a triable issue of fact as to an Eighth Amendment violation arising from his entire course of treatment at the federal prison in Wisconsin.
On appeal, Gil argues that the district court abused its discretion in denying his request for appointed counsel and made an error of law in applying the standard for appointment of counsel. Gil also contends that the court should not have entered summary judgment on his FTCA claims because he could rely on the defendants’ prospective testimony and evidence from his treating physicians to meet the requirement for expert medical evidence. Additionally, Gil argues that he stated a genuine issue of material fact as to his common law negligence claim, a claim for which no medical expert testimony is required. Finally, Gil argues for reversal of the judgment on his Eighth Amendment claims.
We begin with the question regarding appointment of counsel. In Gil‘s first request for counsel, the court ruled that Gil had failed to make the required threshold showing that he had attempted to hire counsel on his own and had failed to do so. That alone was enough to deny the motion but the court noted that even if Gil had satisfied the threshold inquiry, the result would be the same. The court noted that Gil requested “appointment of counsel to assist a Spanish speaking plaintiff.” The court assumed Gil was suggesting that his use of English as a second language disadvantaged him in his ability to litigate his case. Based on Gil‘s pleadings in this case and in other cases before the same district court judge, the court found that Gil‘s language skills did not appear to be limited to a degree that would affect his ability to litigate the case. The court noted that pro se litigants were afforded wide latitude in complying with rules and procedures, that the case was not complex, the law was well-settled and the plaintiff was capable of undertaking discovery. The court therefore denied his motion.
Gil filed a second motion for appointment of counsel, this time demonstrating that he had in fact contacted four different law firms in hopes of finding counsel on his own and had been turned down by each one. He explained that he was a Colombian national with limited English skills and that a jailhouse lawyer had been helping him prepare his pleadings. The court denied this second request:
Because nothing in plaintiff‘s second motion convinces me that I erred in denying his first motion for appointment of counsel, the second motion will be denied. However, I will offer these additional comments.
September 21, 2001 Order, at 1. The court went on to note that Gil would require a medical expert in support of his claims, and that because the cost of experts is great, most malpractice plaintiffs seek out a lawyer who is willing to
It is difficult for lawyers to refuse to take a case when the court requests it. In a case such as this one, it would not be appropriate for a court to select a lawyer to take the case without regard for his or her assessment of the risks of incurring the expense of the lawsuit against the probability of succeeding on the merits of the case. Therefore, if plaintiff is to be represented by counsel in this case, he will have to find counsel on his own.
September 21, 2001 Order, at 2.
Gil argues that the district court erred in both the first and second denials of appointment of counsel. He characterizes the court‘s first order as resting entirely on his failure to demonstrate that he had attempted and failed to retain his own attorney. He claims that the remainder of the court‘s order is dicta. Gil attacks the so-called dicta as containing incorrect assumptions about his ability to represent himself and the complexity of the case. He faults the court for failing to consider the difficulty of hiring an expert for an indigent, incarcerated person. He protests that the second order places him in a “Catch-22” by requiring him to demonstrate that no attorney would take his case and then finding that his case was meritless because no attorney would take it.
A fair reading of the district court‘s first order shows that the court applied the correct legal standard in that order. In the second order, however, we conclude that the district
- the allegation of poverty is untrue; or
- the action or appeal—
- is frivolous or malicious;
- fails to state a claim on which relief may be granted; or
- seeks monetary relief against a defendant who is immune from such relief.
The court nonetheless proceeded to analyze Gil‘s request as if he had made the threshold showing of an attempt and failure to obtain counsel, turning to the standard we announced in Farmer v. Haas, 990 F.2d 319 (7th Cir.), cert. denied, 510 U.S. 963 (1993). Gil is therefore correct that the remainder of the first order, at the time it was issued, is properly considered dicta. But when Gil filed his second motion, and demonstrated that he had now attempted and failed to obtain counsel, the court adopted the reasoning of the first order, rendering it the controlling ruling on the issue. At this point, it was no longer dicta; it was the court‘s
In Farmer, we simplified the inquiry for determining whether to appoint counsel for indigent plaintiffs:
[G]iven the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?
Farmer, 990 F.2d at 322. In answering this question, the court below considered Gil‘s language skills as demonstrated in his pleadings, the latitude afforded pro se plaintiffs on procedural matters, and the complexity of the case. In each instance, the court found that Gil could adequately represent himself. We review that finding for abuse of discretion. Farmer, 990 F.2d at 323. “Denying a request for counsel will constitute an abuse of discretion if it ‘would result in fundamental unfairness infringing on due process rights.‘” Jackson, 953 F.2d at 1071-72 (quoting McNeil v. Lowney, 831 F.2d 1368, 1371 (7th Cir. 1987), cert. denied, 485 U.S. 965 (1988)). See also Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995) (we review the court‘s refusal to appoint counsel for abuse of discretion and reverse only when that refusal amounts to a violation of due process).
At the time the court entered the first order, the ruling it later adopted, it did not have before it an affidavit from Gil‘s jailhouse lawyer, Robert Ortloff. Ortloff filed the affidavit with the second motion for appointment of counsel. According to Ortloff, Gil indeed had limited language skills and had relied on Ortloff in all of his pleadings. Ortloff stated that Gil is a Colombian national with limited English skills. Additionally, Ortloff was busy litigating an astonishing
More importantly, the court appears to have underestimated the complexity of Gil‘s Eighth Amendment and FTCA claims from both a legal and medical standpoint. As we discuss below, Gil‘s claims are not as straightforward as they might initially appear, and the legal and factual pitfalls are many for an untrained person unfamiliar with the English language. Using the Farmer analysis, we consider the complexity of the case, the plaintiff‘s competence and whether appointed counsel could have made a difference in the outcome. We will shortly see that the case is rather complex. From Ortloff‘s affidavit and the court‘s prior appointment of counsel in a related matter, we note that Gil‘s competence to try the case was in question. A lawyer would have been able to help Gil untangle the medical and legal questions that we address below and the court would probably not have granted summary judgment had appointed counsel assisted Gil. Under the Farmer factors, we must therefore conclude that the court abused its discretion in denying Gil‘s motion for appointed counsel.
Gil also objects to the district court‘s “additional comments” in the second order, arguing that the court applied an inappropriate “market test” to his case. As we noted above, in the second order, the court opined that when the suit is one for damages, the contingency system provides a reality check on litigants whose cases may not be as strong as they think. These additional comments were dicta; the court had already determined (albeit incorrectly) that under the Farmer standard, Gil did not require appointed counsel.
B.
Gil filed lawsuits relating to his medical treatment prior to the first surgery for rectal prolapse in March 1998, including treatment he received at the MCC. The district court had previously disposed of those claims and allowed Gil to proceed here only on claims arising subsequent to the March 1998 rectal prolapse surgery. Gil does not challenge that ruling and so we also confine our discussion to events occurring after the March 1998 surgery. Gil‘s FTCA claims encompass both medical malpractice and common law
We review the district court‘s grant of summary judgment de novo, construing all facts and drawing all reasonable inferences from those facts in favor of the non-moving party. Epps v. Creditnet, Inc., 320 F.3d 756, 758 (7th Cir. 2003). The FTCA provides in part that the “United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.”
In the medical malpractice setting, Wisconsin requires expert testimony to establish medical negligence except in situations where the errors were of such a nature that a layperson could conclude from common experience that such mistakes do not happen if the physician had exercised proper skill and care. Christianson v. Downs, 279 N.W.2d 918, 921 (Wis. 1979) (unless the situation is one where the common knowledge of laymen affords a basis for finding negligence, expert medical testimony is required to establish the degree of care and skill required of a physician); Fehrman v. Smirl, 121 N.W.2d 255, 266 (Wis. 1963); Kasbaum v. Lucia, 377 N.W.2d 183, 185 (Wis. Ct. App. 1985) (testimony from medical experts is essential to establish a cause of action for medical malpractice except when the doctrine of res ipsa loquitur applies). Wisconsin allows application of res ipsa loquitur as a substitute for expert testimony in extreme cases where the physician‘s negligence is obvious such as when a surgeon leaves a sponge or other foreign object inside a patient during surgery or removes the wrong organ or body part. Richards v. Mendivil, 548 N.W.2d 85, 89 (Wis. Ct. App. 1996); Christianson, 279 N.W.2d at 921. The doctrine of res ipsa loquitur is not a rule of pleading but rather a rule of evidence that permits a jury to draw a permissible inference of the physician‘s negligence without any direct or expert testimony as to the physician‘s conduct at the time the negligence occurred. Mendivil, 548 N.W.2d at 89. Similarly, Wisconsin‘s preference for expert testimony in proving the standard of care in medical malpractice cases is a rule of evidence, not a substantive rule of law. Although
Even under Wisconsin‘s evidentiary expertise rule, Gil‘s FTCA claims should survive summary judgment. In the claims relating to Reed‘s actions, Gil proposes to use the testimony of Reed himself as well as the testimony of Dr. Kim, the colorectal specialist who reacted with anger when he learned his post-surgery instructions had been ignored. Nothing in Wisconsin law prevents a plaintiff from relying on the defendant (such as Reed) or the defendant‘s agents (to the extent that Dr. Kim can be considered an agent of the defendants in this instance) to supply evidence regarding the appropriate standard of care. In fact, in two Wisconsin cases, courts relied on testimony from physicians who were defendants or agents of the defendant to prove issues related to standard of care. In one case where the court had already determined that res ipsa loquitur relieved the plaintiff of the need for expert testimony, the court nonetheless opined that the testimony of the surgeon accused of malpractice was “sufficient to place this matter in the field of negligence and malpractice by a physician.” Froh v. Milwaukee Medical Clinic, S.C., 270 N.W.2d 83, 87 (Wis. Ct. App. 1978). The physician in that case had inserted a drainage tube in the plaintiff during surgery, and then had removed part of the tube after surgery. When he returned
In the second case, the court relied on the physician-defendant to establish one of the elements of res ipsa loquitur, namely that the event in question would not occur unless there was negligence. Mendivil, 548 N.W.2d at 90. In performing a breast biopsy, Dr. Mendivil had placed a localization guide wire in the patient‘s breast to aid the subsequent surgical removal of the suspicious breast tissue. Mendivil, 548 N.W.2d at 87. During surgery, Mendivil inadvertently left a three-centimeter portion of the guide wire in the patient‘s breast, resulting in sharp pain and the need for a subsequent procedure to remove the wire and resulting scar tissue. Mendivil, 548 N.W.2d at 87. The trial court had attempted to distinguish this case from other cases involving foreign objects left during surgery because there was no evidence on how the wire was broken. The Wisconsin Court of Appeals reversed and remanded, finding that the trial court improperly ignored Mendivil‘s own testimony that it was expected medical practice for surgeons to assure themselves that there are no foreign objects left in a patient when they are finished with surgery. Mendivil, 548 N.W.2d at 90.
In the district court, the government proposed no findings
In addition, Penaflor‘s allegedly more deliberate action is similar to leaving a sponge inside a patient and thus no expert testimony is needed. Construing the facts in Gil‘s favor, Penaflor simply refused to provide a prescribed antibiotic to a person with a serious infection. His angry tone of voice at the time of the refusal could indicate that he had no legitimate reason for the refusal and may have been motivated by malice. It is within a layperson‘s purview to know that when a serious infection at the site of a surgical wound is diagnosed and an antibiotic is prescribed, failure to supply or delay in supplying the antibiotic can result in unnecessary pain, discomfort and a spreading of the infection. Moreover, if res ipsa loquitur does not apply, Dr. Kim could supply the necessary testimony about the standard of care for a person in Penaflor‘s position. No doubt any physician would testify that delaying antibiotics for a serious infection for no reason other than spite does not meet the standard of care for a physician‘s assistant. Summary judgment was not warranted because Gil may be able to show just that.
We turn finally to Gil‘s Eighth Amendment claim against Reed and Penaflor for deliberate indifference to his serious medical needs. The district court granted summary judgment on this claim because, in Penaflor‘s case, his action was a relatively brief and isolated instance of neglect, and because Gil could not show he was harmed by Penaflor‘s temporary withholding of antibiotics. In Reed‘s case, the court granted judgment because the evidence against Reed at best made out a claim for malpractice in the absence of evidence that Reed knew or should have known that discontinuing laxatives while providing Tylenol III would result in a substantial risk of harm for Gil. Reed‘s difference of opinion with Dr. Kim, the court found, was not enough to demonstrate deliberate indifference.
We begin with Penaflor. Recall that when Gil showed up at the medication line to pick up his prescribed medication, Penaflor angrily refused to give it to him, threatened him with disciplinary action if Gil would not immediately return to his cell, and later hung up on a guard who called to find out what happened. Gil was able to pick up the antibiotic the next day during a return trip to the medication line. Prison officials violate the Eighth Amendment prohibition against cruel and unusual punishment when their conduct demonstrates deliberate indifference to the serious medical needs of prisoners. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). The defendants do not claim that Gil did not have a serious medical need. Instead, they argue that Penaflor did not have a sufficiently culpable state of mind, that the single incident of refusal of the antibiotic is insufficient when reviewing Gil‘s medical treatment as a whole, and that Gil was not injured by the delay in receiving the prescribed antibiotic.
Penaflor‘s angry and unexplained refusal to give Gil his prescribed medication is sufficient to create a genuine issue
We consider Reed‘s action next. When Gil returned from the hospital after the second surgery for rectal prolapse, a surgery that was performed through his rectum rather than his abdomen, Dr. Kim sent explicit instructions to take a certain regimen of laxatives (Colace, Milk of Magnesia and Metamucil) and to not take Tylenol III because of its constipating effects. Dr. Kim proscribed Vicodin instead, a drug that is not part of the Bureau of Prison‘s national formulary. Reed cancelled the Milk of Magnesia and the Metamucil and substituted Tylenol III for the Vicodin. He did this after Gil passed on Dr. Kim‘s warnings about the dangers of constipation for Gil following rectal surgery. Indeed, our review of the record, which we recount in full above, demonstrates that Reed prescribed Tylenol III no fewer than three times after being warned about the dangers of this drug for persons suffering from rectal prolapse. Eventually, the prison medical staff substituted Motrin for Vicodin.
The defendants and the district court characterize Reed‘s actions as the result of a difference of medical opinion or at worst medical malpractice. See Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997) (mere differences of opinion among medical personnel regarding a patient‘s appropriate treatment do not give rise to deliberate indifference). Gil maintains that this is not a simple case of differing opinions but that Reed‘s refusal to follow the orders of the specialist precludes summary judgment. He relies on Jones v. Simek, 193 F.3d 485 (7th Cir. 1999), maintaining that the failure to follow the expert‘s instructions alone creates a genuine issue of material fact on deliberate indifference. In Jones, an inmate suffering from arm pain visited the prison doctor a number of times. The inmate alleged that the doctor diagnosed the problem as nerve damage and promised to schedule an
Using Jones as our guide, we find that summary judgment should not have been granted in favor of Reed here. Although Reed has an alternate explanation for the course of action he took, Gil has presented sufficient facts to create a genuine issue as to Reed‘s state of mind in refusing to follow the specialist‘s advice. For example, Reed claims he could not avoid the constipating effect of pain medication because Vicodin was unavailable to him. His explanation is suspect in light of the fact that prison medical personnel eventually prescribed non-constipating Motrin for Gil, demonstrating that Reed in fact had other options available to him that would have avoided the constipation. And in light of his acknowledgment that Tylenol III is constipating, it is even more curious that he simultaneously cancelled two of the three prescribed laxatives. Again, Tylenol III was a curious choice given the express warning provided by the specialist to avoid this very medication. See Estate of Cole,
In sum, we reverse the district court‘s denial of the motion for appointment of counsel. We vacate the court‘s judgment in favor of the defendants and remand for proceedings consistent with this opinion.
REVERSED IN PART, VACATED AND REMANDED IN PART.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—8-25-04