Aaron Murphy v. Wexford Health Sources, Inc. ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐3310
ARRON MURPHY,
Plaintiff‐Appellant,
v.
WEXFORD HEALTH SOURCES INC.
and DR. VIPIN SHAH,
Defendants‐Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 18‐CV‐01077‐JPG‐MAB — J. Phil Gilbert, Judge.
____________________
ARGUED JUNE 9, 2020 — DECIDED JUNE 18, 2020
____________________
Before KANNE, SYKES, and BRENNAN, Circuit Judges.
PER CURIAM. Arron Murphy, a former Illinois prisoner, ap‐
peals the district court’s entry of summary judgment in favor
of the defendants in his suit asserting their deliberate indiffer‐
ence to his dental infection. Murphy’s infection—which
swelled on his face to the size of a softball—ultimately re‐
quired multiple surgeries. Relying on expert testimony,
2 No. 19‐3310
Murphy argues that fact questions exist concerning the prison
doctor’s choice of medicine and subsequent delay in sending
him to a hospital. The district court correctly concluded that
the record reflects not deliberate indifference but at most a
medical disagreement over the course of treatment, so we af‐
firm the judgment.
I. BACKGROUND
Because this case was decided at summary judgment, the
following facts are set forth in the light most favorable to Mur‐
phy. See Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016) (en
banc).
A. Dental Infection and Medical Treatment
On May 4, 2016, a dentist extracted one of Murphy’s teeth,
a molar in his upper‐left jaw.
Two days later, a Friday, Murphy went to the prison’s
healthcare unit, complaining that his left cheek had swollen
significantly. Derek Rice, a prison nurse who examined Mur‐
phy, described the swelling as “softball‐size[d]” and sus‐
pected an infection. (Doc. 44–7 at 1; Doc. 44–6 at 15:12–16:4.)
Rice spoke in person with Dr. Shah about the evaluation.1 Dr.
Shah prescribed penicillin, one gram by mouth twice a day
for five days, because it is “one of the most commonly chosen
drugs by M.D.s for dental infection[s].” (Doc. 44–6 at 13:15–
23; Doc. 44–1 at 20:23–21:18.) Treatment records reflect that
Murphy received penicillin that morning. Murphy contends
that he received only one dose of the medicine, but a notation
in the record alongside a reference to the lone disbursement
1 Neither Dr. Shah nor Nurse Rice recalled these events. They based
their testimony on review of the medical records.
No. 19‐3310 3
says “#10 doses.” (Doc. 46–1 at 2.) Dr. Shah, who did not ex‐
amine Murphy that day, did not recall whether Rice told him
of the extent of Murphy’s swelling.
The next day, Saturday, May 7, Murphy had to make sev‐
eral trips to the healthcare unit. At 1:00 a.m., Murphy com‐
plained that he was having difficulty swallowing. The nurse
told him that, at that hour, she was “definitely not calling the
doctor,” but he should ice his jaw and neck and come back
later in the morning. (Doc. 46–4 at 34:8–13; Doc. 44–7 at 3.)
Murphy returned at 9:00 a.m., noting that his tongue felt
swollen; however, he was unable to open his mouth wide
enough for the nurse to see it. Thinking his condition was an
allergic reaction, the nurse gave him Benadryl. The nurse was
unable by phone to reach Dr. Shah (who did not work at the
prison on weekends) and told Murphy to return at 2:00 p.m.
to be reassessed—but to return “ASAP” if he had any short‐
ness of breath. (Doc. 44–7 at 6–7; Doc. 44–1 at 7:7–10.) Shortly
after, the nurse spoke with Dr. Shah and told him that Mur‐
phy’s swelling was worse than the day before. Dr. Shah was
not concerned that the antibiotic was not working because
penicillin takes several days to work. Dr. Shah did, however,
prescribe a steroid by injection because, in his experience, the
steroid “has always helped the bacteria to subside more along
with the antibiotic.” (Doc. 44–7 at 7; Doc. 44–1 at 36:13–38:5.)
Two days later, a Monday, Dr. Shah examined Murphy for
the first time, and noted that, in addition to the swelling, he
was having difficulty closing his mouth and swallowing. Dr.
Shah placed Murphy under a 23‐hour2 “infirmary
2 The “23‐hour” figure appears to be the relevant duration of the
prison healthcare unit’s standard order for determining treatment plans.
4 No. 19‐3310
observation,” with his vital signs to be checked every four
hours, to see if the treatment was helping, and he ordered an‐
other steroid injection. (Doc. 44–1 at 38:24–40:16.) But Dr.
Shah didn’t believe Murphy’s condition had worsened be‐
cause he did not have a high temperature (which would sig‐
nal infection) or respiratory difficulty (which would suggest
spread of infection). Over the course of the day, Murphy’s
swelling persisted, and his temperature fluctuated between
98.5 and 99.8 degrees.
Dr. Shah saw Murphy again the next morning, May 10,
and noted continued swelling. At the site of the tooth extrac‐
tion, the doctor noticed grayish discoloration, which indi‐
cated infection, and so he admitted Murphy to the infirmary
out of concern that the infection was not healing. He gave
Murphy an injection of a different antibiotic, thinking that it
may work faster than penicillin, and another steroid injection.
Later in the day, Murphy reported having chills; his temper‐
ature had spiked to 105 degrees. Dr. Shah prescribed Tylenol
and ibuprofen, which helped reduce Murphy’s temperature
that night.
Just before noon on May 11, after two check‐ups that
morning, the nurse noticed faint whistling when Murphy
breathed. The nurse notified Dr. Shah, who wasn’t working
at the prison that day, and the doctor ordered that Murphy be
sent to a local hospital’s emergency room.
After a CT scan showed signs of an infection and the clos‐
ing of Murphy’s airway, emergency‐room staff transferred
him to another hospital. There, Dr. Jonathan Bailey, an oral
and maxillofacial surgeon, diagnosed him with Ludwig’s an‐
gina—a disease that involves infections of nearly all the ana‐
tomic spaces in the neck and requires urgent surgical
No. 19‐3310 5
treatment. That day, Dr. Bailey operated on Murphy, draining
the involved spaces of fluid.
Later that week, Murphy underwent two more surgeries
to clean the incisions and drain the spaces again. He returned
to the prison on May 31.
B. District Court Proceedings
Murphy then sued Dr. Shah for deliberate indifference.
(This appeal does not concern Murphy’s claims against
Dr. Shah’s employer, Wexford Health Sources, Inc., or his
state‐law claims against both defendants, so we say nothing
further about those claims.)
Dr. Shah moved for summary judgment, arguing that
Murphy raised only a disagreement with his treatment, which
is insufficient to show that Dr. Shah actually knew of and dis‐
regarded a substantial risk of harm. Dr. Shah enlisted the sup‐
port of two experts, a dentist and an oral and maxillofacial
surgeon, who both opined that Dr. Shah’s treatment of Mur‐
phy was within the standard of care and did not show that
Dr. Shah disregarded his medical condition.
Murphy countered that genuine issues of material fact re‐
garding Dr. Shah’s treatment precluded summary judgment.
In addition to questions about the use of penicillin and ster‐
oids, Murphy argued that Dr. Shah recklessly disregarded the
serious risk to his health by refusing to send him to the hospi‐
tal before May 11. Murphy relied on his expert, Dr. Robert
Citronberg, a physician certified in infectious medicine, who
opined that Dr. Shah “ignored the obvious risk of progression
[to] the severe infection that [Murphy] ultimately suffered.”
(Doc. 46 at 17, quoting Doc. 46–3 at 3.)
6 No. 19‐3310
Largely adopting the report and recommendation of a
magistrate judge, the district judge granted Dr. Shah’s mo‐
tion, finding that the case amounted to only a disagreement
over the proper course of treatment. The district judge
acknowledged Dr. Citronberg’s disagreement with Dr. Shah’s
choice of treatment, but highlighted Dr. Citronberg’s testi‐
mony that Dr. Shah provided “what he thought was the right
treatment” and did not “wholly disregard” Murphy’s condi‐
tion. (Murphy’s Br. App. at 19, quoting Doc. 44‐2 at 10:1–11.)
Nor was there any genuine dispute, the judge added, that Dr.
Shah had acted within the bounds of professional judgment
by choosing to wait until May 11 (five days after Murphy first
went to the prison clinic) to send Murphy to the hospital. Not‐
ing that penicillin often takes several days to take effect, the
judge concluded that no reasonable factfinder could deter‐
mine that Dr. Shah was “persisting in a course of treatment
that was known to be ineffective.” (Murphy’s Br. App. at 23.)
II. ANALYSIS
On appeal Murphy first argues that, contrary to the dis‐
trict judge’s determination, a reasonable jury could find that
Dr. Shah was aware of his condition, recklessly disregarded
its progression, and improperly delayed sending him to the
hospital. He points to the testimony of his expert, Dr. Citron‐
berg, and his treating surgeon, Dr. Bailey—expert testimony
that, he believes, the district court wrongly “discount[ed]” in
favor of its own view of the record. (Murphy’s Br. at 23.)
Deliberate indifference requires a two‐fold showing. First,
the plaintiff must suffer from an “objectively serious medical
condition.” Petties, 836 F.3d at 727–28 (citing Farmer v. Bren‐
nan, 511 U.S. 825, 834 (1994)). The parties agree that Murphy’s
dental infection meets this requirement. But second, the
No. 19‐3310 7
plaintiff must provide evidence that the defendant “actually
knew of and disregarded a substantial risk of harm.” Petties,
836 F.3d at 728.
The assessment here presents a close question. On the one
hand, Dr. Citronberg’s report does contain statements that, in
isolation, may call into question whether the risk of severe in‐
fection posed to Murphy was so obvious that a reasonable
jury could infer that Dr. Shah was aware of the risk and dis‐
regarded it. See Petties, 835 F.3d at 729. For instance, Dr. Cit‐
ronberg opined that Dr. Shah “ignored the obvious risk of
progression to the severe infection that [Murphy] ultimately
suffered.” (Doc. 46–3 at 3.) This progression, he said, was “ap‐
parent” from the softball‐sized swelling to Murphy’s cheek
that persisted despite treatment, and the presence of new
swelling that had developed in his mouth and to his jaw. (Doc
46–3 at 2–3.) And this progression, he added, required a trans‐
fer to a higher level of care, which Dr. Shah did not order until
days later.
But portions of Dr. Citronberg’s sworn testimony require
understanding these statements about shortcomings in Dr.
Shah’s medical care as a difference in medical opinion about
the proper course of treatment. As the district court noted,
Dr. Citronberg testified that, while he disagreed with Dr.
Shah’s course of treatment, Dr. Shah provided “what he
thought was the right treatment.” (emphasis ours). (Murphy’s
Br. App. at 19, quoting Doc. 44–2 at 10:1–4.) And Dr. Citron‐
berg agreed that Murphy’s condition remained “generally the
same” during the five days from his arrival at the prison
healthcare unit on May 6 until he showed his first signs of a
high fever on May 10. (Doc. 44–2 at 52:1–53:15.)
8 No. 19‐3310
Murphy responds that the district court took Dr. Citron‐
berg’s testimony out of context and that a factfinder still could
find deliberate indifference. He spotlights Dr. Citronberg’s
statement that his condition between May 6 and May 10 “was
always severe enough to require transfer to a hospital.” (Mur‐
phy’s Reply Br. at 9.) But this statement does not relate to Dr.
Shah’s subjective awareness of a substantial risk, let alone the
risk of progression to a severe infection. The statement reflects
merely a difference of opinion over when Murphy should
have been sent to a hospital, a scenario that is insufficient to
support deliberate indifference. See Petties, 836 F.3d at 729
(“[E]vidence that some medical professionals would have cho‐
sen a different course of treatment is insufficient to make out
a constitutional claim.”); see also Steele v. Choi, 82 F.3d 175, 179
(7th Cir. 1996).
Murphy also argues that deliberate indifference can be in‐
ferred from the testimony of his treating surgeon, Dr. Bailey,
who said that when a patient shows signs of trismus (reduced
opening of the jaws) and infection, “[y]ou need to get imaging
to find out what’s going on.” (Murphy’s Br. at 23, 25–26; Doc.
44–5 at 75:22–76:4.) But a failure to seek a particular diagnostic
technique, like imaging, “is a classic example of a matter for
medical judgment,” amounting to, “[a]t most,” medical mal‐
practice, Estelle v. Gamble, 429 U.S. 97, 107 (1976), which “just
isn’t enough,” Steele, 82 F.3d at 179. What’s more, Dr. Bailey’s
testimony says nothing about Dr. Shah’s actual knowledge of
a need to order such imaging.
Relatedly, Murphy argues that deliberate indifference
could be inferred from Dr. Shah’s failure to alter the antibiotic
treatment upon learning that he was not taking his oral peni‐
cillin. In support, Murphy references his increased swelling
No. 19‐3310 9
and inability to open his mouth as of May 7, and entries in a
prison medical record (to which Dr. Shah likely had access)
that, he says, show he received only the first of five prescribed
doses.
But there is no evidence that Dr. Shah knew that Murphy
was not taking the medicine. The doctor testified that he was
not concerned with Murphy’s symptoms on May 7 because
penicillin, which had been started only the previous day,
takes 4–5 days to heal an infection. But Dr. Shah also did more
than stick with the same penicillin treatment; on May 10 he
gave Murphy an injection of a different antibiotic because it
“works faster.” (Doc. 44–1 at 50:13–18.) And even if Murphy’s
prison medical record reflects that he received only one dose
of penicillin,3 it is unreasonable to infer, without more, that
the particular record was both in the chart Dr. Shah reviewed
and that he saw it.
Finally, Murphy turns his attention to Dr. Shah’s steroid
treatment, which, Murphy says, showed a “complete aban‐
donment of medical judgment”—as opined by Dr. Citron‐
berg. Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). But
Dr. Citronberg’s written opinions and oral testimony do not
go so far; his statements suggest only that Dr. Shah’s steroid
treatment can be regarded as negligent. As he wrote in his
3 Such an assumption probably would be misplaced (even though the
magistrate judge agreed with Murphy on this point). Nurse Rice testified
that for an oral penicillin prescription (as opposed to injection), he typi‐
cally would issue all doses of the medication to the inmate to keep in his
cell and take as directed. That testimony is consistent with Murphy’s
prison medical record, which bears a set of initials alongside an entry for
May 6 at 8:00 a.m. with a notation “#10 doses” (i.e., 2 pills per day for 5
days). (Doc. 46–1 at 2.)
10 No. 19‐3310
report, the use of steroids outside of an appropriate hospital
setting and without appropriate antibiotics was a “deviation
from the standard of care.” (Doc. 46–3 at 3.) His oral testimony
was similar: Steroid treatment in this situation was “inappro‐
priate,” though he acknowledged that certain antibiotics and
steroids are a “known treatment” for oral infections in “cer‐
tain situations.” (Doc. 44–2 at 40:4–13; 41:5–42:1.) The matter
of steroid treatment, then, merely highlights a difference in
medical opinion over the course of treatment—a standard
that suggests negligence rather than deliberate indifference.
See Petties, 836 F.3d at 729.
III. CONCLUSION
Because the evidence would not support a finding of de‐
liberate indifference, we AFFIRM the judgment.