Joni Zaya v. Kul Sood , 836 F.3d 800 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1470
JONI ZAYA,
Plaintiff-Appellant,
v.
KUL B. SOOD,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 12-CV-1307 — Jonathan E. Hawley, Judge.
____________________
ARGUED OCTOBER 26, 2015 — DECIDED SEPTEMBER 6, 2016
____________________
Before WOOD, Chief Judge, BAUER and SYKES, Circuit
Judges.
SYKES, Circuit Judge. Joni Zaya broke his wrist while he
was an inmate at the Henry Hill Correctional Center in
Galesburg, Illinois. The prison physician, Dr. Kul B. Sood,
sent Zaya to an off-site orthopedic surgeon who took x-rays,
fitted Zaya with a cast, and sent him back to the prison with
instructions that he return in three weeks for a follow-up
exam and additional x-rays. Dr. Sood didn’t follow those
2 No. 15-1470
instructions. Instead he waited nearly seven weeks to send
Zaya back to the orthopedic surgeon. By that time Zaya’s
wrist had healed at an improper angle, and two surgeries
were required to repair the defect. Zaya then filed this action
under 42 U.S.C. § 1983 claiming that Dr. Sood was deliber-
ately indifferent to his serious medical needs in violation of
the Eighth Amendment. The district court granted Dr. Sood’s
motion for summary judgment, holding that the doctor’s
decision to delay Zaya’s return to the orthopedic surgeon
constituted a mere difference of opinion between two medi-
cal professionals. Zaya now appeals.
It is well established that a difference of opinion between
two doctors is insufficient to survive summary judgment on
a deliberate-indifference claim. But when a plaintiff provides
evidence from which a reasonable jury could infer that the
defendant doctor disregarded rather than disagreed with the
course of treatment recommended by another doctor, sum-
mary judgment is unwarranted. Because Zaya has provided
such evidence, we reverse and remand for further proceed-
ings.
I. Background
On January 14, 2012, Joni Zaya, an inmate at the Henry
Hill Correctional Center, injured his left wrist while playing
soccer in the prison yard. He was immediately taken to the
health-care unit for x-rays and treatment. Two days later
Zaya was examined by Dr. Kul B. Sood, a physician and
employee of Wexford Health Services, Inc., the private
corporation that contracts with the Illinois Department of
Corrections to provide medical services to inmates at Henry
Hill. After reading Zaya’s x-rays, Dr. Sood diagnosed an
undisplaced fracture of the left distal radius—in other
No. 15-1470 3
words, a broken left wrist. Dr. Sood then arranged for Zaya
to be examined by Dr. Kenneth Bussey, an off-site orthope-
dic surgeon.
Dr. Bussey examined Zaya on January 17 and confirmed
Dr. Sood’s diagnosis. He placed Zaya in a cast and sent him
back to Henry Hill with instructions that he return for a
follow-up exam and additional x-rays in three weeks. In his
exam notes, which he forwarded to the prison, Dr. Bussey
explained why the timing of the follow-up visit was im-
portant:
I will put [Zaya] in a long-arm cast for 6 weeks.
I will see him back in 3 weeks and then get a
recheck x-ray in the cast to make sure that it is
not displaced. If it does, I could still fix it at
3 weeks rather easily. Right now he doesn’t
need surgical intervention so I will see him
back in 3 weeks.
Dr. Sood acknowledged receipt of Dr. Bussey’s notes on
January 30.
Despite Dr. Bussey’s instructions, Dr. Sood waited for
nearly seven weeks to send Zaya back for the follow-up
exam and x-rays. During that time, Dr. Sood prescribed pain
medication when Zaya complained of discomfort and at one
point modified Zaya’s cast by cutting the fiberglass. On
March 1 Dr. Sood removed the cast and x-rayed Zaya’s
wrist. The x-rays revealed that the fracture was healing at an
improper angle. At that point Dr. Sood authorized a follow-
up appointment with Dr. Bussey, who examined Zaya on
March 6 and determined that surgery would be required for
the fracture to heal properly. Zaya subsequently underwent
4 No. 15-1470
two operations: one on March 14 to re-break his wrist and
insert a metal plate, and another on August 14 to remove the
plate.
Zaya filed this suit against Dr. Sood under § 1983, claim-
ing that the more-than-three-week delay in sending him
back to Dr. Bussey amounted to deliberate indifference to his
serious medical needs in violation of the Eighth Amend-
ment. Dr. Sood moved for summary judgment, arguing that
his decision to wait the extra weeks was an exercise of
medical judgment. Dr. Sood further maintained that even if
his conduct did rise to the level of deliberate indifference, he
was entitled to qualified immunity. The district judge ac-
cepted that Zaya’s fractured wrist was a serious medical
condition. However, he concluded that Zaya had not pro-
duced evidence from which a reasonable jury could find that
Dr. Sood consciously disregarded a known risk by delaying
Zaya’s return to Dr. Bussey. Accordingly, the judge granted
Dr. Sood’s motion for summary judgment without reaching
the question of qualified immunity. This appeal followed.
II. Discussion
We review the court’s order granting summary judgment
de novo, evaluating the record in the light most favorable to
Zaya and drawing all reasonable inferences in his favor.
Burton v. Downey, 805 F.3d 776, 783 (7th Cir. 2015). Summary
judgment is warranted “if the movant shows that 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 dispute is “genuine” “if the evidence is such that a rea-
sonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
No. 15-1470 5
(1986). “As to materiality, the substantive law will identify
which facts are material.” Id.
The Eighth Amendment provides the substantive law in
this case. In Estelle v. Gamble, the Supreme Court held that
“deliberate indifference to serious medical needs of prison-
ers constitutes the ‘unnecessary and wanton infliction of
pain’ proscribed by the Eighth Amendment.” 429 U.S. 97,
104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976))
(citation omitted). “To state a cause of action, a plaintiff must
show (1) an objectively serious medical condition to which
(2) a state official was deliberately, that is subjectively,
indifferent.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.
2008). The parties do not dispute that a fractured wrist is an
objectively serious medical condition, so the only question is
whether a reasonable jury could conclude that Dr. Sood was
deliberately indifferent to that condition.
A. The Deliberate-Indifference Standard
Deliberate indifference requires that a defendant “knows
of and disregards an excessive risk to inmate health or
safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). The
standard is a subjective one: The defendant must know of
facts from which he could infer that a substantial risk of
serious harm exists, and he must actually draw the infer-
ence. Id. The requirement of subjective awareness stems
from the Eighth Amendment’s prohibition of cruel and
unusual punishment; “an inadvertent failure to provide ade-
quate medical care cannot be said to constitute ‘an unneces-
sary and wanton infliction of pain.’” Estelle, 429 U.S. at 105
(emphasis added). Whether a prison official was subjectively
aware of a risk “is a question of fact subject to demonstration
in the usual ways, including inference from circumstantial
6 No. 15-1470
evidence, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk
was obvious.” Farmer, 511 U.S. at 842 (citation omitted).
Any inquiry into a defendant’s mental state is fraught
with difficulties, but those difficulties are often amplified
when the defendant is a medical professional. We have
consistently held that neither a difference of opinion among
medical professionals nor even admitted medical malprac-
tice is enough to establish deliberate indifference. See, e.g.,
Petties v. Carter, No. 14-2674, slip op. at 8 (7th Cir. Aug. 25,
2016) (en banc); Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.
2006); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).
However, we have also made clear that an inmate need not
show that he was “literally ignored” to prevail on a deliber-
ate-indifference claim. Conley v. Birch, 796 F.3d 742, 748 (7th
Cir. 2015) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th
Cir. 2000)). A doctor who provides some treatment may still
be held liable if he possessed a sufficiently culpable mental state.
See Petties, slip op. at 12.
It is in this context that we have emphasized the defer-
ence owed to the professional judgment of medical person-
nel. McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013); see also
Sain v. Wood, 512 F.3d 886, 894–95 (7th Cir. 2008) (describing
the “‘professional judgment’ standard”). By definition a
treatment decision that’s based on professional judgment
cannot evince deliberate indifference because professional
judgment implies a choice of what the defendant believed to
be the best course of treatment. A doctor who claims to have
exercised professional judgment is effectively asserting that
he lacked a sufficiently culpable mental state, and if no
No. 15-1470 7
reasonable jury could discredit that claim, the doctor is
entitled to summary judgment.
But deference does not mean that a defendant automati-
cally escapes liability any time he invokes professional
judgment as the basis for a treatment decision. When the
plaintiff provides evidence from which a reasonable jury
could conclude that the defendant didn’t honestly believe his
proffered medical explanation, summary judgment is un-
warranted. See Petties, slip op. at 12. (“When a doctor says he
did not realize his treatment decisions (or lack thereof) could
cause serious harm to a plaintiff, a jury is entitled to weigh
that explanation against certain clues that the doctor did
know.”). That evidence may consist of “clues” drawn from
the context surrounding a treatment decision. Id. And if the
defendant’s chosen “course of treatment” departs radically
from “accepted professional practice,” a jury may infer from
the treatment decision itself that no exercise of professional
judgment actually occurred. Pyles v. Fahim, 771 F.3d 403, 409
(7th Cir. 2014).
B. Dr. Sood’s Decision to Delay Zaya’s Return to
Dr. Bussey
With these standards in mind, we turn to whether Zaya
has put forward enough evidence to survive summary
judgment. As we’ve noted, the parties agree that a broken
wrist is a serious medical condition. Our only concern is
Dr. Sood’s failure to comply with Dr. Bussey’s instructions
that Zaya return in three weeks for a follow-up exam and
additional x-rays. Zaya argues that Dr. Sood understood the
risks associated with delaying treatment and disregarded
those risks by waiting nearly seven weeks to authorize a
8 No. 15-1470
follow-up appointment. In support of this claim, Zaya points
to Dr. Bussey’s instructions themselves.
A jury can infer conscious disregard of a risk from a de-
fendant’s decision to ignore instructions from a specialist.
See Petties, slip op. at 9; Gil v. Reed, 381 F.3d 649, 663–64 (7th
Cir. 2004); Jones v. Simek, 193 F.3d 485, 490–91 (7th Cir. 1999).
The validity of the inference rests primarily on the contem-
poraneity of the communication and the defendant’s deci-
sion. Instructions from a specialist are evidence that the
defendant knew a particular course of treatment was rec-
ommended by at least one other medical professional at the
time the defendant chose not to provide that treatment.
Dr. Bussey went a step further than simply recommend-
ing that Zaya return within three weeks; he actually de-
scribed the risks of further delay. Dr. Bussey’s instructions
explained that any displacement of Zaya’s wrist could still
be fixed “rather easily” at the three-week mark—the clear
implication being that it would become more difficult to
correct as more time passed. Dr. Sood expressly acknowl-
edged receipt of these instructions by countersigning the
copy that was sent to Henry Hill. Given these facts, a jury
could conclude that Dr. Sood consciously disregarded the
risks associated with delaying Zaya’s return to Dr. Bussey.
See Gil, 381 F.3d at 664 (“On summary judgment, we find
that prescribing on three occasions the very medication the
specialist warned against … while simultaneously cancel-
ing … two of the three prescribed [medications] gives rise to
a genuine issue of material fact about [the defendant’s] state
of mind.”).
But Dr. Sood has offered an explanation for his decision
to wait nearly seven weeks to send Zaya back to Dr. Bussey:
No. 15-1470 9
He claims that he disagreed with Dr. Bussey’s treatment
plan. In his deposition Dr. Sood explained that he has treat-
ed over 500 fractures in his 22-year career and that he be-
lieves three weeks is too early to assess if a bone is healing
properly. According to Dr. Sood, “[y]ou need up to six to
eight weeks to find out the exact nature of the fracture.” That
explanation distinguishes this case from those in which the
defendant either gives no explanation whatsoever for his
failure to follow a specialist’s instructions, see, e.g., Jones,
193 F.3d at 490–91, or provides an explanation that’s inter-
nally inconsistent or otherwise implausible on its face, see,
e.g., Petties, slip op. at 16; Gil, 381 F.3d at 663–64. Because
Dr. Sood has provided a cogent, medical explanation for his
decision to delay follow-up treatment, Zaya must point to
some evidence that would permit a reasonable jury to reject
his explanation as a post hoc rationalization. Cf. Sain,
512 F.3d at 895 (granting summary judgment to the defend-
ant doctor because the plaintiff provided “no evidence to
show that [the doctor’s medical explanation] was a sham or
otherwise impermissible”). 1
1 This is not to suggest that courts should make credibility determina-
tions or weigh evidence on a motion for summary judgment. See Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Jackson v. Ill.
Medi–Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002). But summary judgment
does require courts to decide what inferences can justifiably be drawn
from the nonmovant’s evidence. See Liberty Lobby, 477 U.S. at 249–50 (“If
the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”) (citations omitted). If a defendant
provides a facially plausible medical explanation for his decision and
that explanation remains un-rebutted, the jury would have no reason to
discredit it.
10 No. 15-1470
We think that Zaya has met this requirement—though
just barely—by offering the report and deposition testimony
of Dr. Nathaniel R. Evans, his expert. Dr. Evans opined that
it was unreasonable for Dr. Sood, a general practitioner, to
disagree with instructions from Dr. Bussey, an orthopedic
surgeon who had examined and treated Zaya:
A reasonable physician, when faced with the
circumstance of a patient having been treated
by an orthopedist and having received written
request from that orthopedist to return the pa-
tient to the orthopedist in … three weeks,
would have directed that the patient be re-
turned to the orthopedist in the three week
timeframe as specified by the orthopedist. In
failing to do so, Dr. Sood deviated from the
standard of care.
From that testimony a reasonable jury could draw the
following conclusions: Most general practitioners wouldn’t
disagree with Dr. Bussey’s instructions. Dr. Sood is a general
practitioner; therefore, Dr. Sood didn’t actually disagree
with Dr. Bussey’s instructions.
Of course doctors do sometimes act unreasonably, so the
expert’s opinion is only weakly probative of Dr. Sood’s
mental state. By itself an expert’s assessment that a treatment
decision was unreasonable is not enough to establish con-
scious disregard of a known risk. See Duckworth, 532 F.3d at
681. But Zaya has offered more than that; he has provided
evidence that Dr. Sood was fully apprised of the risks asso-
ciated with delaying treatment at the time he made the
decision to do so. Given that affirmative evidence of
Dr. Sood’s mental state, the expert’s opinion is enough to
No. 15-1470 11
create a genuine factual dispute about whether Dr. Sood
actually disagreed with Dr. Bussey’s instructions or instead
simply ignored them, notwithstanding the attendant risks.
C. Qualified Immunity
Dr. Sood contends that even if a jury could find that he
consciously disregarded the risks of delaying Zaya’s return
to Dr. Bussey, he is nonetheless entitled to summary judg-
ment on qualified-immunity grounds. The Supreme Court
has held that employees of privately operated prisons may
not assert a qualified-immunity defense. See Richardson v.
McKnight, 521 U.S. 399, 412 (1997). We have construed that
holding to extend to employees of private corporations that
contract with the state to provide medical care for prison
inmates. See Currie v. Chhabra, 728 F.3d 626, 631–32 (7th Cir.
2013); see also Shields v. Ill. Dep’t of Corrs., 746 F.3d 782, 794
n.3 (7th Cir. 2014). As an employee of Wexford, a private
corporation that contracts with the Illinois Department of
Corrections, Dr. Sood asks us to reconsider our earlier
decisions.
We need not do so because even if a qualified-immunity
defense were available to Dr. Sood, he would not be entitled
to summary judgment on that basis. “The doctrine of quali-
fied immunity protects government officials ‘from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Pearson v. Calla-
han, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). Zaya’s deliberate-indifference claim
turns on Dr. Sood’s mental state, and it is well established
what the law requires in that regard. See Farmer, 511 U.S. at
837. If Dr. Sood consciously disregarded the risks of delay-
12 No. 15-1470
ing Zaya’s return to Dr. Bussey, then his conduct violates
clearly established law under the Eighth Amendment. See
Petties, slip op. at 18. As we’ve explained, that’s a question of
fact that needs to be resolved by a jury.
REVERSED AND REMANDED.