Adam Christopher v. Lily Liu ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 10, 2021*
Decided June 23, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20‐2602
ADAM CHRISTOPHER, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of
Wisconsin.
v. No. 18‐cv‐944‐bbc
LILY LIU, Barbara B. Crabb,
Defendant‐Appellee. Judge.
ORDER
Adam Christopher, a Wisconsin inmate, appeals the entry of summary judgment
in favor of one of his treating physicians, Dr. Lily Liu. He maintains that Dr. Liu
violated state and federal law during a five‐month period by ordering diagnostic tests
rather than changing his existing course of treatment. During the pretrial proceedings,
the district court denied several of Christopher’s motions—to amend his complaint, for
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20‐2602 Page 2
assistance recruiting counsel, and to compel the production of discovery material. He
appeals those rulings as well. We affirm in all respects.
For more than a year before he first saw Dr. Liu, Christopher received treatment
from other prison medical providers for gastrointestinal problems and back pain, but
nothing resolved his symptoms. He first saw Dr. Liu in May 2018, a month after he
received a wearable nerve stimulator (a “TENS unit”) for his back pain and exercise
instructions from a physical therapist. Dr. Liu initially focused on Christopher’s
gastrointestinal complaints, performing physical exams, ordering a full blood panel,
and prescribing a stool softener—a treatment Christopher had tried before but did not
like. When Christopher’s blood panel appeared normal, Dr. Liu ordered further tests
related to Christopher’s gastrointestinal, back, and fatigue complaints: an abdominal
x‐ray and a CT scan. She also referred him to an orthopedist and to additional physical
therapy. Before the end of 2018, Christopher had a colonoscopy and saw an outside
back specialist. The colonoscopy results showed that Christopher had mild colon
diverticulosis, for which the treatment was to continue increasing his fiber intake. The
back specialist noted that Christopher’s problems were chronic and could be addressed
only with physical or chiropractic therapy.
In November 2018, Christopher sued Dr. Liu and 22 other prison employees. He
moved the court to recruit counsel for him because his back condition made it “very
difficult to draft pleadings,” and the case would require medical expertise. The district
court ordered Christopher to refile his complaint to include only factually related claims
and determined that, until he did so, it would be too early to decide whether he needed
assistance from counsel.
Christopher amended his complaint to include only claims about the medical
treatment he received from three defendants. As to Dr. Liu, he claimed that between
May and October 2018 she acted with deliberate indifference to his serious medical
needs and violated state medical‐negligence law by persisting in ineffective treatment
for his gastrointestinal problems, failing to provide treatment for his back pain, and
ignoring his complaints of fatigue.
After the defendants moved for summary judgment on their affirmative defense
of failure to exhaust administrative remedies, the court denied Christopher’s second
motion to recruit counsel and fifth motion to amend his complaint (to add a new
allegation that Dr. Liu’s alleged failure to treat his medical conditions continued while
the case was pending). The case did not appear too complex for Christopher to litigate
on his own, the court concluded, because his “complaint and numerous other filings
No. 20‐2602 Page 3
[were] clear and easy to follow.” And it was not yet apparent that the case would turn
on questions of medical expertise. Further, although Christopher generally complained
about obtaining discovery, the court could not conclude that a lawyer would help
because he did not provide enough information about the evidence he sought. As for
the motion for leave to amend, the court explained that “a complaint cannot be a
moving target.”
After her exhaustion defense failed, Dr. Liu moved for summary judgment on
the merits. (By then, the other defendants had been dismissed; one on exhaustion
grounds, and the other voluntarily by Christopher.) Christopher responded, but he
asserted that he had not been able to perform sufficient discovery without assistance
from a lawyer. He also filed two motions to compel specific discovery. The court
reserved ruling on those requests until summary judgment briefing was complete.
Ultimately, the district court concluded that the undisputed facts did not support
Christopher’s claims against Dr. Liu, who had responded to Christopher’s reported
symptoms by ordering tests to determine appropriate treatment. With respect to
Christopher’s gastrointestinal problems, within five months Dr. Liu performed multiple
physical examinations, prescribed medication, ordered lab work, an abdominal x‐ray,
and a CT scan, and referred Christopher for a colonoscopy. Christopher lacked evidence
that this course of treatment fell outside the bounds of accepted medical judgment. And
even taking as true Christopher’s assertion that Dr. Liu refused to treat his back pain at
his initial appointment, Christopher had recently received a TENS unit and exercise
instructions for his back from his physical therapist. Dr. Liu did not have to consider
alternatives before learning whether the new treatments helped. Further, Christopher
failed to show that Dr. Liu’s failure to prescribe a treatment specific to his fatigue was
deliberately indifferent because the cause of that symptom was unknown, and she
ordered multiple tests to determine the origins of his symptoms. Finally, the court
concluded that no reasonable jury could find Dr. Liu liable for malpractice because
Wisconsin law requires expert testimony to establish the standard of care, but
Christopher submitted none. The district court denied the motions to compel, finding
that the requested materials would not have changed its analysis.
A few days after entering the final judgment order, the district court docketed
Christopher’s third request for recruited counsel. In it, Christopher argued that without
counsel he could not try to enlist an expert to prove that Dr. Liu’s care departed from
accepted professional judgment. The court did not address the motion.
No. 20‐2602 Page 4
More than 28 days after the judgment, Christopher filed what he labeled a
motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e).
Treating the filing as a Rule 60(b) motion, the district court denied it. The court granted
Christopher an extension of time to appeal, however, because he swore that COVID‐19‐
related restrictions had impeded him from timely filing it. After ordering jurisdictional
briefs from the parties, we determined that this appeal would include review of the
district court’s judgment and its order denying the post‐judgment motion. But because
Christopher’s appellate briefs point to myriad perceived errors in the district court
proceedings but do not address the post‐judgment order, neither will we. See Landmark
Am. Ins. Co. v. Deerfield Constr., Inc., 933 F.3d 806, 816 (7th Cir. 2019).
We begin with Christopher’s challenge to the district court’s denial of his motion
for leave to amend his complaint for a fifth time, which sought to expand his claims
against Dr. Liu to include her actions in 2019, after Christopher sued. We review denials
of motions to amend a complaint under the deferential abuse of discretion standard.
Mulvania v. Sheriff of Rock Island Cnty., 850 F.3d 849, 854 (7th Cir. 2017). “[D]istrict courts
have broad discretion to deny leave to amend where there is undue delay, bad faith,
dilatory motive, repeated failure to cure deficiencies, undue prejudice to defendants, or
where the amendment would be futile.” Id. at 855 (quoting Arreola v. Godinez, 546 F.3d
788, 796 (7th Cir. 2008)).
Here, the district court justifiably denied Christopher’s motion. First, the court
found that Christopher’s repeated amendments made his complaint “a moving target”
for Dr. Liu. Moreover, he filed this request during summary judgment proceedings on
exhaustion and just two months before the final dispositive‐motions deadline. Granting
leave to amend would have required modifying the court’s scheduling order to allow
for more discovery. Finally, many of the events Christopher complained of occurred
before his earlier amendments, but he had not included them. The district court
therefore did not abuse its discretion in limiting Christopher’s claims to the five‐month
period in his earlier amended complaint. (For this reason, we do not address
Christopher’s arguments about Dr. Liu’s alleged conduct in 2019. See On‐Site Screening,
Inc. v. United States, 687 F.3d 896, 900 (7th Cir. 2012).)
Next, Christopher raises several arguments challenging the entry of summary
judgment for Dr. Liu on his claim of deliberate indifference. The parties agreed that
Christopher’s gastrointestinal problems, back problems, and fatigue were serious
medical conditions that required treatment, and we will assume the same for purposes
of this appeal. Thus, to survive summary judgment, Christopher needed to furnish
No. 20‐2602 Page 5
evidence that Dr Liu recklessly disregarded his need for treatment. See Petties v. Carter,
836 F.3d 722, 728 (7th Cir. 2016) (en banc). We review de novo the district court’s
decision. See Wilson v. Adams, 901 F.3d 816, 820 (7th Cir. 2018).
We agree with the district court that no reasonable juror could conclude that
Dr. Liu displayed deliberate indifference to Christopher’s need for treatment.
Christopher’s theory of the case is essentially that Dr. Liu should have changed his
course of treatment—specifically, by prescribing some sort of new medication—upon
his first visit with her because he told her that he still had symptoms. “Persisting in
treatment known to be ineffective” can be evidence of deliberate indifference. Thomas v.
Martija, 991 F.3d 763, 772 (7th Cir. 2021). But Christopher’s expectation that Dr. Liu
should have changed his course of treatment based on his word alone is not evidence
that her decision was medically unsound. See id. (“It is not enough that the plaintiff
simply believes the treatment was ineffective or disagrees with the doctor’s chosen
course of treatment.”) Rather, Dr. Liu’s decision to perform diagnostic tests—physical
exams, blood work, an x‐ray, a CT scan, and, eventually, a colonoscopy—before
changing his course of treatment is owed deference because it was an exercise of her
medical judgment. See Pyles v. Fahim, 771 F.3d 403, 411 (7th Cir. 2014) (quoting Estelle v.
Gamble, 429 U.S. 97, 107 (1976)) (explaining that decisions about the need for diagnostic
testing are “a classic example of a matter of medical judgment”).
Further, there is no evidence in the record that any delay caused by the
diagnostic testing unnecessarily prolonged suffering that an earlier, feasible action
could have abated. See Petties, 836 F.3d at 730–31. While Christopher points to many
perceived errors by Dr. Liu—that she wrongly noted his complaints and should have
considered various treatments, including fatigue‐specific ones—he does not point to
any evidence that the continuation of his existing course of treatment during the
relevant period caused him further harm. For example, he asserts that Dr. Liu should
have ordered a colonoscopy earlier, but when he received a colonoscopy, the
recommendation was merely that he continue supplementing his fiber intake, as Dr. Liu
had ordered. And, though Christopher says that Dr. Liu’s delay in developing a new
treatment plan for his back pain prolonged his suffering, the back specialist that he
eventually saw confirmed that the same treatment—physical therapy—was the best
available. Christopher presses that Dr. Liu should have personally provided the
treatment he ultimately received from specialists, but the Eighth Amendment does not
give prisoners the right to demand specific medical treatment, let alone treatment by a
specific provider. See Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011).
No. 20‐2602 Page 6
For this same reason, the district court did not err in finding in Dr. Liu’s favor on
Christopher’s state‐law negligence claim. A claim of medical malpractice requires a
negligent act or omission that caused an injury, i.e. greater harm than existed at the
time. See Paul v. Skemp, 625 N.W.2d 860, 865 (Wis. 2001). No reasonable jury could
conclude that Christopher established the element of injury.
Finally, because Christopher cannot show that granting his discovery motions or
requests for recruited counsel would have changed the outcome of this case, we will not
reverse based on the district court’s decisions to deny those motions. See Kuttner
v. Zaruba, 819 F.3d 970, 974 (7th Cir. 2016); Pruitt v. Mote, 503 F.3d 647, 649–50 (7th Cir.
2007) (en banc). Christopher requested from Dr. Liu admissions that her treatment had
the potential to aggravate his blood pressure and that there were treatments available for
his conditions that she did not prescribe. None of this would have tended to prove that
Dr. Liu had the requisite state of mind or that she inflicted harm on Christopher by
exacerbating his chronic conditions or needlessly prolonging pain. Nor could a lawyer
have saved this case: The record contained Christopher’s relevant medical records, and
he presented cogent arguments opposing summary judgment. A lawyer might have
been able to enlist a medical expert, but we have explained why Christopher’s evidence
would have fallen short anyway.
We have considered Christopher’s other arguments, and none has merit.
AFFIRMED