Dennis Davis v. Francis Kayira ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2456
DENNIS DAVIS,
Plaintiff-Appellant,
v.
FRANCIS KAYIRA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 15-cv-3075-SLD — Sara Darrow, Chief Judge.
____________________
ARGUED MARCH 25, 2019 — DECIDED SEPTEMBER 16, 2019
____________________
Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit
Judges.
SYKES, Circuit Judge. Dennis Davis is an Illinois prisoner
suffering from kidney disease. After receiving dialysis on a
Saturday morning, he told a prison nurse that his mind was
fuzzy and his body was weak. Both complaints were similar
to side effects he had experienced in the past after dialysis.
The nurse called Dr. Francis Kayira, the prison’s medical
director, who was on call. The doctor asked her whether
2 No. 18-2456
Davis had asymmetrical grip strength, facial droop, or was
drooling—all classic signs of a stroke. When she said “no,”
Dr. Kayira determined that Davis was experiencing the same
dialysis-related side effects as before rather than something
more serious. He told the nurse to monitor the problem and
call him if the symptoms got worse. Dr. Kayira didn’t hear
anything else for the rest of the weekend, but on Monday
morning he examined Davis and discovered that he had in
fact suffered a stroke.
Davis later sued Dr. Kayira, alleging that he acted with
deliberate indifference to his medical needs in violation of
the Eighth Amendment. Davis also raised a state-law
medical-malpractice claim. The district court entered sum-
mary judgment for Dr. Kayira on both claims. The judge
ruled that the deliberate-indifference claim failed because
there is no evidence that Dr. Kayira was aware of symptoms
suggesting that Davis was suffering a stroke. And the state-
law claim failed because Davis lacked expert testimony
about the appropriate standard of care. A magistrate judge
had blocked Davis’s sole expert because he wasn’t disclosed
in time, and Davis never objected to that ruling before the
district court.
We affirm. Davis lacks evidence of deliberate indiffer-
ence. And because he did not ask the district court to review
the magistrate judge’s exclusion of his expert, his state-law
claim fails as well.
I. Background
Davis is currently serving a prison sentence at the
Graham Correctional Center in central Illinois. He has a
history of diabetes, high blood pressure, and renal disease.
No. 18-2456 3
Davis’s renal disease requires dialysis, a treatment he began
in 1996 and continues to receive three times a week.
Davis received dialysis early on the morning of Saturday,
June 21, 2014. He told a nurse almost immediately afterward
that he was feeling weak. She observed a number of symp-
toms, including slurred speech, an inability to follow com-
mands, weak hand grasps, and pupils that were pinpoint
and nonreactive. At 5:45 a.m. she called Dr. Kayira, the
medical director at Graham Correctional Center. Dr. Kayira
was on call for the weekend, but he wasn’t otherwise sched-
uled to return to the prison until Monday morning. The
nurse told him about the complaints and mentioned that
Davis had previously experienced similar symptoms after
dialysis. That isn’t surprising given that patients are often
fatigued after dialysis because of fluid withdrawal.
Dr. Kayira asked the nurse whether Davis had asymmetrical
hand-grip strength, whether he was drooling, and whether
his face was drooping. She said “no” to all three, which led
Dr. Kayira to conclude that Davis wasn’t having a stroke but
was instead suffering the same dialysis-related side effects as
before. Dr. Kayira directed the nurse to put Davis in the
infirmary to be monitored more closely, and he told her to
have the daytime nurse call back if symptoms worsened.
Over the weekend Davis’s condition deteriorated. But
while the medical staff reported its observations in a series
of handwritten notes, there is no evidence that anyone
notified Dr. Kayira. A medical technician wrote at 6 a.m. on
Saturday that Davis was confused and his grip was weaker
on one side than the other. The same note mentioned that
Dr. Kayira had asked for the daytime nurse to evaluate the
patient and call him back, but it did not say whether
4 No. 18-2456
Dr. Kayira was told about the asymmetry. According to
another note—written at an unknown time—Davis said that
his left arm and leg weren’t working and he thought he was
having a stroke. A note written at 8 a.m. on Sunday said that
Davis couldn’t move one of his legs as much as normal. A
note written at 3:30 p.m. the same day observed that Davis
was weak in his left hand and leg but that he could raise his
arms and sit up in bed. Notes the following morning contin-
ued to record weakness on Davis’s left side. Again, none of
the notes indicated that Dr. Kayira was notified of these
changes in Davis’s condition.
When Dr. Kayira examined Davis in person on Monday,
he immediately recognized that Davis’s strength was asym-
metrical and he had likely suffered a stroke. Dr. Kayira
transferred Davis to a hospital where the stroke was con-
firmed.
The following year Davis sued Dr. Kayira under
42 U.S.C. § 1983 alleging that he acted with deliberate indif-
ference to his medical condition in violation of his Eighth
Amendment right to be free from cruel and unusual pun-
ishment. He later amended his complaint to add a state-law
medical-malpractice claim. Dr. Kayira was the only named
defendant. More than a year into the litigation, Davis sought
leave to amend his complaint again to add five nurses. The
judge denied the motion because it was untimely and would
cause undue prejudice and delay.
After filing suit, Davis obtained a report from a board-
certified physician stating that his claim had merit, a prereq-
uisite for the medical-malpractice claim under state law,
which requires a plaintiff to obtain a certificate of merit at
the pleading stage. See 735 ILL. COMP. STAT. 5/2-622 (2015).
No. 18-2456 5
The report concluded that “Dr. Kayira knew or should have
known that Dennis Davis was suffering from a stroke, or
that a stroke was imminent.” But the report is unsigned and
its author remains unidentified.
Once discovery began, the district judge adopted the par-
ties’ proposed pretrial schedule, which required that Davis
disclose experts by June 1, 2017. All discovery was to close
on October 1, 2017, but in November Dr. Kayira moved to
extend the deadline. The judge granted the motion but
rejected the parties’ new proposed schedule, reasoning that
it would delay trial until four years after the initial filing.
Rather than adopt another phased schedule, she simply
ordered that all discovery be completed by February 15,
2018. Six weeks before that deadline, she referred the case to
a magistrate judge to handle the remaining pretrial matters.
Davis retained Dr. Coleman Seskind as an expert but
didn’t disclose the doctor’s report until February 13, 2018—
just two days before the final discovery cutoff. Dr. Kayira
moved to strike the expert report as untimely. In a telephonic
hearing, the magistrate judge explained that all discovery
had to end by February 15 under the district court’s order,
which meant that Davis had left Dr. Kayira no opportunity
to depose Dr. Seskind or otherwise respond to his proposed
testimony. The magistrate judge concluded that it would be
improper to allow Dr. Seskind to testify without that oppor-
tunity, so he granted the motion to strike.
Dr. Kayira then moved for summary judgment on both
claims. The district judge granted the motion. She first
concluded that the evidence was insufficient to establish that
Dr. Kayira acted with deliberate indifference to Davis’s
medical condition. More specifically, no jury could find that
6 No. 18-2456
Dr. Kayira was aware based on the initial phone call that
Davis was having a stroke. Moreover, there was no evidence
that Dr. Kayira learned anything new until he arrived at the
prison on Monday, at which point he immediately trans-
ferred Davis to the hospital. And Davis’s state-law claim
failed because he had no expert testimony on the appropri-
ate standard of care. Davis never argued to the district judge
that the magistrate judge was wrong to exclude Dr. Seskind’s
testimony.
II. Discussion
“We review the court’s order granting summary judg-
ment de novo, viewing the evidence and drawing all reason-
able inferences in” the nonmovant’s favor. See Whiting v.
Wexford Health Sources, Inc., 839 F.3d 658, 661 (7th Cir. 2016).
Summary judgment is warranted if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). “A factual
dispute is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Whiting, 839 F.3d at 661 (quotation marks omitted).
A. The Eighth Amendment Claim
The Eighth Amendment requires that the government
provide “medical care for those whom it is punishing by
incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). But a
claim for violation of this right is not synonymous with a
claim for medical negligence. To prevail on a claim that a
prison healthcare provider violated the Eighth Amendment,
a plaintiff must prove that he “suffered from an objectively
serious medical condition” and the defendant was “deliber-
ately indifferent to that condition.” Petties v. Carter, 836 F.3d
No. 18-2456 7
722, 727–28 (7th Cir. 2016). Everyone agrees that Davis’s
stroke was an objectively serious medical condition. The
only dispute is whether Dr. Kayira acted with deliberate
indifference.
The deliberate-indifference standard requires a “suffi-
ciently culpable state of mind.” Farmer v. Brennan, 511 U.S.
825, 834 (1994). A healthcare provider cannot be liable unless
he “knows of and disregards an excessive risk to inmate
health or safety.” Id. at 837. This is “essentially a criminal
recklessness standard.” McGee v. Adams, 721 F.3d 474, 481
(7th Cir. 2013). Indeed, “[a] medical professional is entitled
to deference in treatment decisions unless no minimally
competent professional would have so responded under
those circumstances.” Pyles v. Fahim, 771 F.3d 403, 409 (7th
Cir. 2014) (quotation marks omitted).
When a plaintiff alleges that a healthcare provider knew
enough to infer a substantial risk of harm, he must prove
(1) that the provider was aware of facts supporting the
inference and (2) that the provider actually drew the infer-
ence. See Farmer, 511 U.S. at 837. To prove the subjective
component of the claim, a plaintiff might point to a number
of things, including “the obviousness of the risk,” “the
defendant’s persistence in a course of treatment known to be
ineffective,” or “proof that the defendant’s treatment deci-
sion departed so radically from accepted professional judg-
ment, practice, or standards that a jury may reasonably infer
that the decision was not based on professional judgment.”
Whiting, 839 F.3d at 663 (quotation marks omitted).
Davis claims that Dr. Kayira should have inferred that he
was having a stroke based on the information in the initial
phone call on Saturday morning. But there is no evidence
8 No. 18-2456
that the information relayed to Dr. Kayira at that time would
have led every minimally competent doctor to conclude that
Davis was at risk of something that serious. The fatigue
Davis experienced is common in dialysis patients. Even
more important, Davis himself had experienced similar side
effects following previous dialysis treatment. And when
Dr. Kayira asked the nurse whether Davis was showing
telltale signs of a stroke, she said “no.” Based on the then-
available information, Dr. Kayira reasonably concluded that
Davis was not suffering a stroke. At the very least, there is
no evidence that Dr. Kayira actually drew the necessary
inference—in other words, that he actually believed Davis
had suffered a stroke.
We addressed essentially the same issue in Whiting. The
doctor there thought it possible a patient had lymphoma but
concluded it was more likely he had an infection. See id. Like
Dr. Kayira, that doctor was wrong. We nonetheless held that
a reasonable jury could not conclude that the doctor acted
with deliberate indifference because no evidence suggested
that he knew his diagnosis was wrong or that the treatment
he prescribed would be ineffective. See id. at 664. We empha-
sized that there was no expert testimony suggesting the
doctor’s actions were a substantial departure from the norm.
See id. This case is exactly the same. Dr. Kayira thought one
diagnosis was far more likely than another and responded
accordingly. There is no evidence—and certainly no expert
testimony—to suggest he clearly should have known better.
In response Davis directs us to Conley v. Birch, where we
held that a jury could find a doctor deliberately indifferent
for failing to order an x-ray in response to a nurse’s call
about an inmate’s serious hand injury. See 796 F.3d 742, 747–
No. 18-2456 9
49 (7th Cir. 2015). But there the evidence was sufficient to
conclude that the nurse gave the doctor enough information
to make it obvious that the hand was fractured and that an
x-ray was needed. The record showed that the nurse likely
told the doctor that the inmate’s hand was swelling two days
after the injury, that he had lost function in all five fingers,
and that the hand was discolored. See id. at 744–45. In fact,
the record was sufficient for a jury to find that the nurse
directly told the doctor that he thought the hand was broken.
See id. In Davis’s case the cause of his symptoms wasn’t
similarly obvious and there is no reason to think Dr. Kayira’s
diagnosis was unreasonable, much less substantially so.
Of course, this might be a different case if Dr. Kayira had
learned new information over the weekend about Davis’s
status. But there is no evidence that Dr. Kayira received any
updates until he returned Monday morning. The record
includes medical notes describing in detail how Davis’s
condition worsened, but no evidence suggests that
Dr. Kayira was made aware of this information. Davis’s best
evidence is the note written by the medical technician at
6 a.m. on Saturday morning. It says that Davis’s grip was
asymmetrical and also records Dr. Kayira’s order to watch
Davis and have the daytime nurse call him back. But the
note says nothing about whether the technician called
Dr. Kayira to tell him about the asymmetry. Instead, the
technician simply recorded what he personally observed
while simultaneously noting Dr. Kayira’s earlier order from
the initial phone conversation during which the doctor was
definitively told there was no asymmetry. 1
1 At times Davis seems to suggest that Dr. Kayira conceded in his
deposition that the technician told him about the asymmetry. As Davis
10 No. 18-2456
Davis offers no evidence that Dr. Kayira knew more. He
argues that the nurses and the technician might testify at trial
that they called Dr. Kayira a second time to relay new in-
formation. But without evidence that they would so testify
(say, an affidavit or a deposition), Davis cannot survive
summary judgment. Based on the information from the
initial (and only) phone call, Dr. Kayira thought Davis was
experiencing normal side effects of dialysis. His response—
ordering closer monitoring and asking that he be notified of
adverse changes—was not reckless. Granted, there is some
evidence that he said he would call back later to check in.
But at best that’s probative of negligence. Without expert
testimony establishing that every minimally competent
doctor would have done so, that fact alone isn’t enough to
prove deliberate indifference. We therefore affirm the sum-
mary judgment on Davis’s Eighth Amendment claim.
B. The Medical-Malpractice Claim
Under Illinois law a medical-malpractice claim requires
expert testimony about the appropriate standard of care
“[u]nless the physician’s negligence is so grossly apparent or
the treatment so common as to be within the everyday
knowledge of a layperson.” Sullivan v. Edward Hosp.,
806 N.E.2d 645, 653 (Ill. 2004) (quotation marks omitted). The
magistrate judge excluded Davis’s sole expert because his
disclosure was untimely. Davis challenges that ruling on
appeal.
tells it, Dr. Kayira chose not to rely on the technician’s observation
because he thought him incompetent. But that’s a mischaracterization of
what Dr. Kayira said. While he did say that he didn’t think the technician
was competent, he also said very clearly that he didn’t recall ever
speaking to him.
No. 18-2456 11
The problem is that Davis never objected to that ruling
when he was before the district court. Rule 72(a) of the
Federal Rules of Civil Procedure says that a party may object
to a magistrate judge’s ruling on a nondispositive pretrial
matter within 14 days. The very next sentence says: “A party
may not assign as error a defect in the order not timely
objected to.” FED. R. CIV. P. 72(a); Flint v. City of Belvidere,
791 F.3d 764, 769 (7th Cir. 2015) (“[The] failure to challenge a
magistrate’s pretrial ruling in the district court forfeits the
right to attack it on appeal.”).
In response Davis directs us to the local rules for the
Central District of Illinois. He notes that the rule about
objecting to nondispositive orders uses permissive rather
than mandatory language. See C.D. ILL. L.R. 72.2(A) (“Ap-
peal of Non-Dispositive Matters. Any party may appeal
from any order of a magistrate judge within 14 days … .”).
He contrasts that with the rule governing dispositive mo-
tions, which explicitly says that the failure to object counts as
a waiver. See id. L.R. 72.2(B). Thus, he reasons, a party litigat-
ing in that particular court need only object to a ruling on a
dispositive matter in order to preserve its argument for
appeal. But given that Rule 72(a) requires an objection to
nondispositive orders within 14 days and itself bars further
review of untimely objections, there’s no need for the local
rules to parrot that mandate. Davis didn’t object to the
magistrate judge’s exclusion of his expert within the
timeframe required by Rule 72(a), so the issue is not proper-
ly before us.
Without expert testimony, Davis’s malpractice claim
cannot succeed. Other than Dr. Seskind, the only doctor to
have expressed an opinion on the standard of care is the
12 No. 18-2456
doctor who wrote the certificate of merit. See 735 ILL. COMP.
STAT. 5/2-622. But that report is unsigned and the doctor
remains unidentified. To take a malpractice claim to trial,
“[t]he proponent of an expert’s testimony must lay a founda-
tion which affirmatively establishes the expert’s qualifica-
tions and competency to testify.” Weekly v. Solomon, 510 N.E.
2d 152, 155 (Ill. App. Ct. 1987). Davis obviously can’t lay that
foundation without identifying who the doctor is. And
without expert testimony, his malpractice claim fails.
AFFIRMED