Gil, Diego v. Reed, James ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1823
DIEGO GIL,
Plaintiff-Appellant,
v.
JAMES REED, JAIME PENAFLOR,
and UNITED STATES OF AMERICA,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 C 724—Barbara B. Crabb, Chief Judge.
____________
ARGUED SEPTEMBER 3, 2003—DECIDED AUGUST 25, 2004
____________
Before RIPPLE, ROVNER and DIANE P. WOOD, Circuit
Judges.
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 indiffer-
ence 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
2 No. 02-1823
the defendants on all claims. We reverse in part and vacate
and remand in part.
I.
On review of this motion for summary judgment, we con-
strue the facts in a light most favorable to Diego Gil, the
party opposing judgment, and we draw all reasonable infer-
ences 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 de-
scription 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 physi-
cian’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 incarcer-
ated 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 hem-
orrhoids, 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 thereaf-
ter, 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 rec-
ommended operation. The physician who examined him
No. 02-1823 3
there told him his condition was much more serious than
hemorrhoids. He told Gil that it was his colon, not hemor-
rhoids, that had been protruding from his body after bowel
movements. The physician diagnosed rectal prolapse and
told Gil he needed major surgery. Rectal prolapse is an ab-
normal movement of the rectal mucosa down to or through
the anal opening. A rectal prolapse may be partial (involv-
ing mucosa only) or may be complete, involving the entire
wall of the rectum.1 Another doctor at that same hospital
gave Gil the same diagnosis the next day, confirming that
it was his colon that had been protruding from his body and
that major surgery was required to correct the condition.
In early March 1998, Gil had abdominal surgery to cor-
rect 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.
1
See http://www.nlm.nih.gov/medlineplus/ency/article/ 001132.htm.
This is an encyclopedia entry in Medline Plus, an online service of
the National Library of Medicine and the National Institutes of
Health.
4 No. 02-1823
That evening, Gil went to the medication line to pick up
his prescriptions. Penaflor was in charge of dispensing
medications that evening. When Gil presented his medical
pass and asked for both medications, Penaflor picked up
two bottles, looked at the labels and gave Gil only the bottle
containing Tylenol III. He held onto the other bottle and
told Gil in a hostile tone that he could not have the antibi-
otic. When Gil asked why he could not have his prescribed
medication, Penaflor refused to give a reason and ordered
Gil back to his unit, threatening that he would be placed in
disciplinary segregation if he failed to leave. Gil returned to
his housing unit and complained to the duty officer about
what had just happened. The duty officer called Penaflor to
investigate and Penaflor hung up on him, asserting he was
too busy to talk. The duty officer noted the incident in his
log and directed Gil to return to the medication line in the
morning.
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 bet-
ter. 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 sur-
gery was performed through Gil’s rectum by a colorectal
specialist, Dr. Michael Kim. After the surgery, Dr. Kim pre-
scribed 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
No. 02-1823 5
III because it causes constipation, which would worsen Gil’s
condition. Gil was returned to FCI Oxford in the evening on
the same day as the surgery. That night, the prison medical
staff gave him Metamucil, Milk of Magnesia, Colace and
Tylenol III. Apparently, Vicodin is not included on the
national formulary of drugs used by the Bureau of Prisons,
and so the staff substituted Tylenol III. The next day, Gil was
seen by Dr. Reed. He told Reed about Dr. Kim’s instructions
and relayed the warning about Tylenol III. Nonetheless, Reed
gave Gil Tylenol III and cancelled Dr. Kim’s prescriptions
for Metamucil and Milk of Magnesia when he knew Gil was
experiencing constipation.
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 pre-
scription 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 dif-
ferent 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
6 No. 02-1823
him with Tylenol III only. The next day, other medical staff
finally provided Gil with Metamucil, Milk of Magnesia and
Motrin. On August 7, 2000, Dr. Kim surgically repaired
Gil’s two hernias.
Gil sued the United States for violations of the Federal
Tort Claims Act (“FTCA”) and Reed and Penaflor for vio-
lation of his Eighth Amendment rights in connection with
the medical care he received. He asked the district court to
appoint counsel to assist him in bringing his claims. The
district court denied the request for appointed counsel, finding
that Gil had failed to demonstrate that he had attempted
and failed to obtain a lawyer on his own. The court found,
however, that even if Gil had made this requisite threshold
showing, counsel would not be appointed because Gil had
adequate skills to handle the case, the matter was not com-
plex, and pro se litigants were afforded wide latitude in
complying with rules and procedures. After attempting and
failing to hire a lawyer, Gil filed a second motion for
appointment of counsel which was also denied. The court
adopted the reasoning expressed in its first order and also
offered an additional rationale to support the order, which
we will discuss below. The defendants then moved for sum-
mary judgment and the court granted the motion. For the
FTCA claim, the court found, Gil would be required to pro-
duce expert testimony demonstrating that the defendants
failed to use a reasonable standard of care in treating him.
Because Gil failed to name an expert and named as medical
witnesses only the defendant doctors who treated him, the
court granted judgment in favor of the United States on the
FTCA claim. On the Eighth Amendment claims, the court
granted judgment in favor of Penaflor because, first, his
conduct consisted of, at most, a few isolated instances of
neglect when viewed in light of Gil’s overall care and
because, second, Gil did not have evidence that he was harmed
by Penaflor’s actions. The court similarly granted judgment
in favor of Reed because Reed’s actions amounted to a dif-
No. 02-1823 7
ference of opinion with another physician and were not ade-
quate to state a claim for deliberate indifference to serious
medical needs. Gil appeals.
II.
We appointed counsel for Gil on appeal after determining
that the assistance of counsel and oral argument would ma-
terially 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 Wiscon-
sin; 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 appoint-
ment of counsel. Gil also contends that the court should not
have entered summary judgment on his FTCA claims be-
cause he could rely on the defendants’ prospective testimony
and evidence from his treating physicians to meet the re-
quirement 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.
8 No. 02-1823
A.
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 plead-
ings 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 liti-
gants 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 dif-
ferent 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 appoint-
ment of counsel, the second motion will be denied. How-
ever, 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
No. 02-1823 9
take the case on a contingency basis. The court opined that
the contingent fee system served as a reality check for liti-
gants because if no lawyer is willing to take the case, “chances
are high that the case is one the lawyers have assessed ei-
ther as not likely to succeed or not likely to result in a damage
award large enough to recoup the expense of prosecuting
the case.” The court then noted that all of the lawyers Gil
approached rejected the case, including a firm that special-
ized in medical malpractice:
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 prob-
ability 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 character-
izes 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 dem-
onstrate 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
10 No. 02-1823
court abused its discretion. The court’s authority to appoint
counsel for indigent plaintiffs derives from 28 U.S.C.
§ 1915(e)(1): “The court may request an attorney to repre-
sent any person unable to afford counsel.” The next subsec-
tion provides, however, that the court shall dismiss the case
at any time if it determines that:
(A) the allegation of poverty is untrue; or
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be
granted; or
(iii) seeks monetary relief against a defendant who
is immune from such relief.
28 U.S.C. § 1915(e)(2). In determining whether to appoint
counsel for an indigent plaintiff like Gil, a court must “first
determine if the indigent has made reasonable efforts to
retain counsel and was unsuccessful or that the indigent was
effectively precluded from making such efforts.” Jackson v.
County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992). In
its first order, the court noted that Gil’s request failed on
this initial inquiry because he did not demonstrate that he
made any effort to obtain counsel on his own. That finding
alone was enough to support the court’s first order.
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 an-
nounced 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
No. 02-1823 11
ruling. After adopting the reasoning of the first order, the
court offered “additional comments.” Because the second
ruling did not rest on the additional comments, they are best
characterized as dicta. The basis of the final ruling on the
issue was the court’s application of Farmer to Gil’s circum-
stances. We therefore review that analysis.
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 rep-
resent 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.3d 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 affi-
davit 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
12 No. 02-1823
fourteen other cases, six on behalf of himself and eight for
other inmates. As a result, he felt unable to give Gil’s case
the attention it needed. The court does not appear to have
considered Ortloff’s affidavit when it ruled on the second
motion. We note that the court had previously appointed
counsel for Gil in another case related to his medical care
and thus was aware that Gil was not necessarily competent
to try such a case.
More importantly, the court appears to have underesti-
mated 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 pit-
falls 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 ap-
pointed 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 com-
ments” 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.
No. 02-1823 13
In these additional comments, the court noted that it was
reluctant to appoint counsel in a case where a number of
lawyers had declined the case after assessing the risks of
incurring the expense of the lawsuit against the probability
of succeeding on the merits of the case. To the extent that
this rationale influenced the court’s ruling on the second
motion, we agree with Gil that it was not an appropriate
consideration. Gil is correct that a plaintiff’s suit is not per
se meritless simply because he was unable to obtain counsel.
Jackson, 953 F.2d at 1073. The “willingness of counsel to
take a case is not a perfect indicator of which claims are
important and legitimate nor will counsel always be avail-
able.” Jackson, 953 F.2d at 1073. As we noted, the threshold
consideration in determining whether to appoint counsel is
whether the inmate has attempted and failed to procure
counsel on his own. If that failure can then be used deter-
minatively to demonstrate that the case is meritless, no
indigent litigant would ever be appointed counsel. To the
extent the court equated the failure to procure counsel with
the meritlessness of the case, that equation was error. In
sum, we find the court abused its discretion in declining
Gil’s motion.
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
14 No. 02-1823
negligence claims.2 The district court granted summary
judgment in favor of the defendants on the FTCA claims
because Wisconsin law requires plaintiffs to provide expert
evidence regarding the standard of care and Gil named as
witnesses only doctors who were defendants or who were
contractors for the defendants. On appeal, Gil argues that
Wisconsin law does not always require expert testimony,
and that the witnesses he named could provide the neces-
sary testimony.
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 relat-
ing to tort claims, in the same manner and to the same
extent as a private individual under like circumstances.” 28
U.S.C § 2674. Because a claim brought under the FTCA is
governed by “the law of the place where the act or omission
occurred,” the substantive law of Wisconsin governs Gil’s
claims for medical malpractice and common law negligence.
28 U.S.C. § 1346(b); Campbell v. United States, 904 F.2d
1188, 1191 (7th Cir. 1990). To make out a claim for medical
malpractice or negligence in Wisconsin, a plaintiff must
prove the following four elements: (1) a breach of (2) a duty
2
The defendants contend that Gil waived any claim to common
law negligence by failing to raise it below. Although his claim for
common law negligence may have been inartfully pled in his pro
se complaint, we will construe his pleadings liberally and give him
the benefit of the doubt. See Haines v. Kerner, 404 U.S. 519, 520
(1972) (pleadings of a pro se litigant held to less stringent stand-
ards than formal pleadings drafted by lawyers). He did claim
“reckless and negligent medical care” below and that is sufficient
for our purposes. See Hoskins v. Poelstra, 320 F.3d 761, 754 (7th
Cir. 2003) (a complaint satisfies the requirements of Rule 8 if it
notifies the defendant of the principal events).
No. 02-1823 15
owed (3) that results in (4) injury or injuries, or damages.
Paul v. Skemp, 625 N.W.2d 860, 865 (Wis. 2001). “In short,
a claim for medical malpractice requires a negligent act or
omission that causes an injury.” Id. To survive summary
judgment, Gil need not prove his claim; he need only show
that there is a genuine issue of material fact as to each of
these elements.
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 estab-
lish 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) (testi-
mony 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 per-
missible 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
16 No. 02-1823
neither side briefed the issue, we are doubtful that Wiscon-
sin’s expertise rule need be applied in federal court where
the Federal Rules of Evidence apply exclusively. See Ueland
v. United States, 291 F.3d 993, 998 (7th Cir. 2002). In
federal court, no expert testimony is needed when the
symptoms exhibited by the plaintiff are not beyond a
layperson’s grasp. Ledford v. Sullivan, 105 F.3d 354, 360
(7th Cir. 1997) (no expert needed in deliberate indifference
case where plaintiff experienced nausea, dizziness, vomit-
ing, a crawling sensation on his skin, emotional and mental
regression, and depression when the defendants deprived him
of his medication). Nonetheless, a determination of the
applicability of Wisconsin’s rule is unnecessary to the
resolution of the appeal.
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 regard-
ing the appropriate standard of care. In fact, in two Wiscon-
sin 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 nonethe-
less 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
No. 02-1823 17
to remove the remainder, he could not locate the tube but
performed no further testing to determine if part of the tube
remained. The tube had retracted into the patient’s body
where it remained for more than two months, causing
inflammation and infection. Eventually the doctor located
and removed the object. Froh, 270 N.W.2d at 84-85. At trial,
the doctor, who was determined to be an expert, admitted
under adverse questioning that leaving a drainage tube in
a patient for more than seven days will cause infection.
Froh, 270 N.W.2d at 86-87. After citing the Wisconsin
requirement for expert testimony on the degree of care and
skill required, the court found that the testimony of the
doctor who performed the negligent act was sufficient to
establish negligence and malpractice. Froh, 270 N.W.2d at
87.
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 per-
forming a breast biopsy, Dr. Mendivil had placed a localiza-
tion 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 pa-
tient’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 involv-
ing 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
18 No. 02-1823
of fact regarding the specifics of Gil’s malpractice claim.
Rather, the government rested solely on Gil’s failure to
produce expert testimony that the care provided to him was
not within the standard of practice at the time treatment
was provided. The district court faulted Gil for failing to name
as expert witnesses anyone other than his treating physi-
cians. We hold that Gil may rely on his treating physicians
to establish the standard of care, even if those physicians
are defendants or agents of defendants. Gil has not cited
specific evidence from Reed regarding the standard of care,
but relies instead on Dr. Kim’s angry reaction upon learn-
ing that his instructions had been ignored as demonstrating
that Reed’s and Penaflor’s actions breached the standard of
care. At the summary judgment stage, with a pro se plaintiff,
Dr. Kim’s angry reaction and reassertion of his earlier
instructions are enough to create a genuine issue on
whether Reed and Penaflor were meeting the standard of care
required under the law.
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 anti-
biotic 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 moti-
vated 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 in-
fection. Moreover, if res ipsa loquitur does not apply, Dr.
Kim could supply the necessary testimony about the stand-
ard 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.
No. 02-1823 19
C.
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 judg-
ment 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 dis-
continuing laxatives while providing Tylenol III would re-
sult 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 insuf-
ficient 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
20 No. 02-1823
of fact regarding his state of mind. Although a negligent or
inadvertent failure to provide adequate medical care is
insufficient to state a deliberate indifference claim, it is
enough to show that a defendant actually knew of a sub-
stantial risk of harm to the inmate and acted or failed to act
in disregard to that risk. Walker v. Benjamin, 293 F.3d
1030, 1037 (7th Cir. 2002); Vance v. Peters, 97 F.3d 987, 992
(7th Cir. 1996), cert. denied, 520 U.S. 1230 (1997) (in order
to be held liable for deliberate indifference, prison official
must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists and
he must also draw the inference). Penaflor is not a phy-
sician but rather is a physician assistant. His job that day
was to hand out medications prescribed by the prison
doctor. A jury could infer from his angry tone and from his
action in hanging up on the guard that his refusal to give
Gil his medication was malicious. We have noted that it is
difficult to generalize about the civilized minimum of public
concern necessary for the health of prisoners except to
observe that this civilized minimum is a function both of ob-
jective need and cost. Ralston v. McGovern, 167 F.3d 1160,
1162 (7th Cir. 1999). “The lower the cost, the less need has
to be shown, but the need must still be shown to be substan-
tial.” Ralston, 167 F.3d at 1162. Here the cost of handing
over the prescribed antibiotic was zero. The drug had been
prescribed and dispensed into a bottle labeled for Gil and
was in Penaflor’s hand when he refused to hand it over. See
Zentmyer v. Kendall County, Illinois, 220 F.3d 805, 810 (7th
Cir. 2000) (Eighth Amendment principles prohibit jail
personnel from intentionally denying or delaying access to
medical care or intentionally interfering with the treatment
once prescribed); Wynn v. Southward, 251 F.3d 588, 594
(7th Cir. 2001) (failure to respond to inmate’s request for pre-
scribed heart medication sufficient to state Eighth Amend-
ment claim when inmate informed prison staff he needed
heart medication immediately for fluttering heart and to
prevent heavy chest pains). Gil’s need for the antibiotic to
treat a serious infection involving a surgical wound was
No. 02-1823 21
substantial. Gil has shown enough to survive summary
judgment on the issue of Penaflor’s state of mind. The fact
that this was a single incident is not determinative. Al-
though we have stated that isolated instances of neglect in
the course of treatment may not be enough to make out a
claim for deliberate indifference, Gutierrez, 111 F.3d at
1375, this was a deliberate and potentially malicious act.
Again, the cost to Penaflor of meeting Gil’s serious medical
need was zero. In that context, a single incident may be
enough to make out a claim for deliberate indifference.
Finally, as for Gil’s injury, we need not check our common
sense at the door. A delay in providing antibiotics will
necessarily delay the curing of the infection or possibly lead
to its spread. Gil presented testimony as to the pain caused
by the infection, which required lancing and draining multiple
times, and he also presented evidence that within 24 hours of
taking the antibiotic he began to feel better. A jury could
infer that Penaflor’s delay caused Gil that many more hours
of needless suffering for no reason. That is enough to
survive summary judgment.
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. In-
deed, 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. Even-
tually, the prison medical staff substituted Motrin for Vicodin.
22 No. 02-1823
Motrin is part of the formulary and is not constipating;
Reed had this option available at the time he prescribed
Tylenol III. This time there is no argument about injury;
Gil was severely constipated for more than a week following
his rectal prolapse surgery. He suffered much pain and
discomfort, rectal bleeding, and an inability to even urinate
as a result of Reed’s course of treatment. Reed, of course,
has a different view of the facts. He prescribed Tylenol III
because Vicodin was not available in the prison formulary;
he cancelled the Metamucil and Milk of Magnesia because
he feared Gil would become dehydrated. He claims that con-
stipation was a risk he could not avoid because Vicodin was
not available for him to prescribe.3
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 medi-
cal 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
3
We are troubled by Reed’s attempt to justify prescribing an ad-
mittedly inappropriate drug because the appropriate drug was not a
part of the Bureau of Prison’s formulary. Because Gil has not raised
a claim related to the adequacy of the formulary, we reserve for
another day the issue of whether the government or a prison doc-
tor may avoid liability for deliberate indifference by seeking
shelter behind an inadequate formulary.
No. 02-1823 23
appointment with a specialist. The doctor did not make the
appointment for approximately six more months, during
which time the doctor refused to provide pain medication
and treated the prisoner with hostility (the doctor told a dif-
ferent story but Jones, like this case, came to the court on
summary judgment and so the court was obliged to credit
the inmate’s version of events). The specialist prescribed a
sling, medication and a consultation with an anesthesiologist.
The prison doctor then essentially ignored the specialist’s
advice for many more months until another specialist per-
formed a nerve block on the inmate. In the meantime, the
inmate lost the use of his right arm from the elbow down
and suffered great pain. Jones, 193 F.3d at 488. We held
that the six-month delay in providing an appointment with
a specialist and the refusal to then follow the specialist’s
advice, if proven, met the standard for deliberate indif-
ference to serious medical needs. Jones, 193 F.3d at 490. We
twice more cited the refusal to provide the treatment
ordered by the specialist as facts sufficient to survive a
motion for summary judgment. Jones, 193 F.3d at 491.
Using Jones as our guide, we find that summary judgment
should not have been granted in favor of Reed here. Al-
though 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, dem-
onstrating 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,
24 No. 02-1823
94 F.3d at 260 (facts showing that a defendant has been ex-
posed to information concerning the risk will permit a jury
to infer subjective awareness of a substantial risk of serious
harm); Benjamin, 293 F.3d at 1037 (fact-finder may conclude
that a prison official knew of a substantial risk of harm
from the very fact that the risk was obvious). Reed may be
able to show at trial that his decisions were simply an
exercise of medical judgment rather than deliberate indif-
ference. Deliberate indifference encompasses a broader
range of conduct than intentional denial of necessary medi-
cal treatment but stops short of negligence in treating a
medical condition. Jones, 193 F.3d at 490. The test is a sub-
jective one: the prison official must act or fail to act despite
his knowledge of a substantial risk of serious harm. Jones,
193 F.3d at 490. See also Farmer v. Brennan, 511 U.S. 825,
837 (1994) (prison official may be held liable under the Eighth
Amendment when he knows of and disregards an excessive
risk to inmate safety). On summary judgment, we find that
prescribing on three occasions the very medication the
specialist warned against because of its constipating effect
(when a non-constipating alternative was available) while
simultaneously cancelling the two of the three prescribed
laxatives gives rise to a genuine issue of material fact about
Reed’s state of mind. See Estate of Cole, 94 F.3d at 259 (a
plaintiff may establish subjective awareness of the risk by
proof of the risk’s obviousness). See also Snipes v. Detella,
95 F.3d 586, 592 (7th Cir. 1996), cert. denied, 519 U.S. 1126(1997) (medical treatment may give rise to Eighth Amend-
ment claim when it is so blatantly inappropriate as to
evidence intentional mistreatment likely to seriously
aggravate the prisoner’s condition). Gil has demonstrated a
genuine issue of material fact regarding whether Reed was
deliberately indifferent to his serious medical needs. For
that reason, we vacate and remand for further proceedings
consistent with this opinion.
No. 02-1823 25
III.
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 con-
sistent 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