Robert Madden v. Enrique Luy ( 2016 )

NONPRECEDENTIAL DISPOSITION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 February 11, 2016 *
Decided March 18, 2016
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 15-1653
ROBERT MADDEN, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 13-C-549
ENRIQUE LUY, and Rudolph T. Randa,
DAVID FOLEY, Judge.
Defendants-Appellees.
ORDER
Robert Madden, a Wisconsin inmate, appeals the grant of summary judgment
against him in this suit under 42 U.S.C. § 1983, asserting that two doctors (one at the
prison where he was incarcerated, and one at a hospital to which he was referred) were
deliberately indifferent to his serious medical needs when they failed appropriately to
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15-1653 Page 2
treat complications and pain he experienced following a surgical procedure. The district
court concluded that no jury could rule in Madden’s favor. We affirm.
Madden, who had a history of chronic hepatitis C, was an inmate during the time
in question at the Racine Correctional Institution. After a scan revealed a small tumor in
his liver, Madden was referred to the Primary Liver Tumor Clinic at the University of
Wisconsin (UW) Hospital.
Two weeks later he was examined by Dr. David Foley, a liver and kidney
transplant surgeon employed by the UW Hospital, who confirmed the presence of a 1.4
centimeter tumor. Dr. Foley acknowledged that Madden was a suitable candidate for
resection, but believed (for reasons on which he did not elaborate) that a “microwave
ablation” was Madden’s best treatment option. Microwave ablation is a technique that
involves sticking a microwave-emitting probe directly into the tumor for the purpose of
destroying it.
Less than a week later, the microwave ablation was performed by two
radiologists at the hospital. Medical records reflect that there were complications in the
form of a small area of “diaphragmatic burn and intercostal musculature burn”—in
other words, burns to some of the tissue surrounding the liver. Madden says he was
never informed of these burns, though he was admitted for inpatient care under Dr.
Foley, the surgeon on duty. While hospitalized, Madden ran fevers as high as 102 and
experienced pain, and Dr. Foley treated him with oral medication. Six days later
Dr. Foley discharged Madden. This was his final interaction with Madden.
Madden returned to Racine and came under the care of Dr. Enrique Luy, the
prison’s staff physician. Dr. Luy prescribed methadone for pain caused by the burns and
otherwise monitored Madden’s liver condition. An MRI taken roughly 18 months after
the first ablation revealed a possible second tumor, and so Dr. Luy referred Madden
back to the UW Hospital’s Liver Tumor Clinic.
At that clinic Madden was examined by Dr. Alexandru Musat, a transplant
hepatologist, who noted his complaints of continuing pain at the site of the previous
ablation. Dr. Musat wrote to Dr. Luy that Madden’s case should be evaluated by the
Hospital’s Multidisciplinary Tumor Board to determine whether he should be treated
again with a “local regional therapy” (such as another ablation) or evaluated for a liver
transplant. Dr. Musat also recommended that Dr. Luy refer Madden to the
UW Hospital’s Pain Clinic to determine whether a nerve block would better manage
No. 15-1653 Page 3
Madden’s pain if a repeat ablation were not going to be performed “at this time.” The
Board recommended that Madden be referred for a transplant evaluation and that the
lesion be monitored and possibly treated with a second ablation.
Dr. Luy referred Madden for the transplant evaluation but declined to send him
to the pain clinic because the Board had not ruled out a second ablation. Instead Dr. Luy
maintained Madden’s methadone prescription.
Over the next year, Dr. Luy continued to collaborate with Dr. Musat to monitor
Madden’s second tumor and coordinate his care. After one exam Dr. Musat found that
the tumor had increased in size to 2.3 cm and opined that it needed to be removed. He
also noted that Madden had suffered a “significant” muscle injury from the earlier
ablation and recommended that Madden’s methadone dosage be increased. Madden
underwent a procedure to remove the second tumor shortly thereafter. Throughout the
following year, Dr. Luy adjusted Madden’s methadone dosage three times based on
recommendations from Dr. Musat (Dr. Luy noted on one of the authorizations that
Madden had twice been caught selling methadone to other inmates, but that he “could
not discontinue methadone liquid because this was recommended by Dr. Musat for
pain”). Madden remained on methadone for 18 months after the second tumor was
removed. He told Dr. Luy that he wished to discontinue taking the drug, at which point
Dr. Luy referred him to the UW Hospital’s Pain Clinic, which found that there was “no
good interventional or surgical solution” for his pain. Madden was transferred to
another facility shortly thereafter and had no further contact with Dr. Luy.
Madden brought this deliberate-indifference suit against Dr. Foley and Dr. Luy.
He asserted that Dr. Foley injured him during the ablation and then prolonged his pain
and suffering by failing to tell him about the complications from the procedure. Madden
further charged that Dr. Luy displayed deliberate indifference to his pain by keeping
him on addictive medication rather than referring him to the pain clinic when Dr. Musat
first recommended the referral.
As the litigation unfolded, Madden repeatedly— and unsuccessfully—filed
motions for recruitment of counsel and for assistance in obtaining discovery. Six times
he moved to recruit counsel, and each time the court denied his motion, finding that he
was competent to litigate his claims, that the quality of his filings was high, and that the
issues were not unduly complex. In addition, Madden moved three times to compel the
defendants to produce his medical records. The court similarly denied each of these
motions, noting that Madden could obtain his records directly from the UW Hospital
No. 15-1653 Page 4
and the Department of Corrections, and that he actually had copies of the relevant
records, which he received when the defendants attached them to their motion for
summary judgment.
The district court granted summary judgment for the two doctors, concluding
that Madden failed to identify any facts that pointed in the direction of deliberate
indifference toward his medical needs. Not only was it undisputed that Dr. Foley did not
perform the ablation but, even if he had, there was no issue of non-disclosure because
Madden’s burns had been noted in his medical records and thus were made known to
subsequent treating providers. Further, the court determined, Foley’s course of
treatment—Tylenol and ibuprofen to treat Madden’s fevers and prescription
medications for pain—was “not so far afield” as to allow an inference of deliberate
indifference. Nor had Dr. Luy been deliberately indifferent to Madden’s pain: Madden
had premised his claim on Dr. Luy’s failure to refer him to the pain clinic, but Dr. Musat
had recommended such a referral only if the Board concluded that a second procedure
not be performed, and the Board had not, in fact, ruled out a second procedure. And it
was not “blatantly inappropriate” for Dr. Luy to continue Madden’s methadone
prescription “in collaboration with Dr. Musat.”
On appeal Madden generally challenges the grant of summary judgment against
him, essentially reiterating the arguments he raised in the district court. But as the
district court properly concluded, Madden failed to create a fact question on the
question whether Dr. Foley treated him with deliberate indifference. To survive
summary judgment, Madden needed to present evidence that Dr. Foley knew of and
disregarded an excessive risk to his health or safety—in other words, that the doctor
exhibited a reckless disregard of harm. King v. Kramer, 680 F.3d 1013, 1018–19 (7th Cir.
2012); Estate of Cole v. Fromm, 94 F.3d 254, 258–59 (7th Cir. 1996). Although a failure to
treat serious, chronic pain may constitute deliberate indifference, Walker v. Benjamin, 293
F.3d 1030, 1039–40 (7th Cir. 2002); Gutierrez v. Peters, 111 F.3d 1364, 1371 (7th Cir. 1997),
disagreement about a proper course of treatment does not suffice. The treatment
received must be “blatantly inappropriate.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.
2014). The medical records confirm that Dr. Foley did not perform the ablation. And
even if Dr. Foley somehow were at fault for not disclosing to Madden the nature of the
complications from the ablation, Dr. Foley nevertheless treated his pain and noted the
burns in his medical records, ensuring that the details of the burns would be available to
subsequent treatment providers. The fact that Madden was given a powerful narcotic
painkiller by Dr. Luy after he returned to Racine undermines Madden’s suggestion that
the seriousness of his injuries was unknown.
No. 15-1653 Page 5
Madden also maintains that Dr. Luy was deliberately indifferent by ignoring until
this case began Dr. Musat’s recommendation that he be referred to a pain clinic. But here
too we agree with the district court that Madden has failed to raise a triable issue
regarding deliberate indifference on the doctor’s part. Madden misunderstands
Dr. Luy’s reason for not following Dr. Musat’s recommendation. Dr. Luy declined to
make a referral because Dr. Musat premised his recommendation on a second procedure
not being performed. But even if Dr. Luy favored a method of pain treatment other than
the one recommended by Dr. Musat, this would not amount to “so significant a
departure from accepted professional standards or practices that it calls into question
whether the doctor actually was exercising his professional judgment,” Pyles, 771 F.3d at
409. Madden did receive treatment for his pain in the form of increasing doses of a
powerful narcotic. (The fact that Madden was twice caught selling his methadone to
other inmates also undercuts his assertion that his pain was not being effectively
managed.) The lack of any evidence that he was harmed by Dr. Luy’s delay in referring
him dooms his claim of deliberate indifference.
Madden also asserts that the district court erred by denying his motions to
compel discovery of his medical records. But as the court explained in denying the
motions, the defendants in their court filings provided him with addresses that he could
use to obtain his own medical records. And in any event, Madden obtained the records
he sought when the defendants attached them to their motion for summary judgment.
He therefore suffered no prejudice by the court’s denial of his motions. See James v. Hyatt
Regency Chicago, 707 F.3d 775, 784 (7th Cir. 2013).
Madden also contends that the district court abused its discretion by denying his
motions to recruit counsel. But the district court committed no abuse of discretion when
it denied his requests, because his claims were not novel or complex and he had proven
competent to litigate the case. His arguments were straightforward and did not require
interpretation of complex medical evidence, and he repeatedly demonstrated his ability
to handle the litigation. Moreover, Madden has not shown a reasonable likelihood that
representation would have changed the outcome of the case. Henderson v. Ghosh, 755 F.3d
559, 564–65 (7th Cir. 2014); Johnson, 433 F.3d at 1007.
AFFIRMED.