Eugene Devbrow v. Eke Kalu ( 2013 )


Menu:
  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 12-2467
    E UGENE D EVBROW,
    Plaintiff-Appellant,
    v.
    D R. E KE K ALU, et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
    No. 1:07-cv-1355-LJM-TAB—Larry J. McKinney, Judge.
    A RGUED O CTOBER 31, 2012—D ECIDED F EBRUARY 1, 2013
    Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
    S YKES, Circuit Judges.
    S YKES, Circuit Judge. This case arises out of a delay by
    prison medical staff in ordering a prostate biopsy for a
    prisoner. Eugene Devbrow entered the Indiana prison
    system in 2000. During the intake process, he told the
    medical staff that he had prostate problems and would
    need to be tested for prostate cancer within two to
    four years. In February 2004 a prison doctor ordered
    a PSA test (for “prostate-specific antigen”), which
    2                                            No. 12-2467
    revealed an elevated PSA, but the medical staff did not
    order a prostate biopsy until April 2005. In a follow-up
    biopsy six months later, Devbrow was diagnosed with
    prostate cancer, but by that time the disease had spread
    to his spine and treatment options were severely limited.
    In October 2007 Devbrow sued two prison doctors
    and a prison nurse practitioner under 
    42 U.S.C. § 1983
    for deliberate indifference to his serious medical needs
    in violation of the Eighth Amendment. He alleged that
    their long delay in ordering a biopsy prevented the dis-
    covery of his cancer while the odds of successfully
    treating it were still good. The district court entered
    judgment for the defendants based on the two-year
    statute of limitations. The court construed the claim as
    a continuing constitutional violation that began in Feb-
    ruary 2004—when, according to Devbrow, his PSA test
    and prostate history showed the need for a biopsy—and
    ended in April 2005 when the biopsy was ordered. At
    that point, the court said, the defendants’ deliberate
    indifference ceased, the cause of action accrued, and the
    limitations clock started ticking. Because Devbrow filed
    suit more than two years later, the court dismissed it
    as untimely.
    We reverse. The statute of limitations for a § 1983
    deliberate-indifference claim brought to redress a
    medical injury does not begin to run until the plaintiff
    knows of his injury and its cause. Judged by that
    standard, Devbrow’s suit is timely. He did not know of
    his injury in April 2005 when the defendants finally
    ordered a biopsy; he discovered it six months later
    No. 12-2467                                                3
    when he learned he had cancer that might have been
    diagnosed and treated earlier but for the defendants’
    deliberate indifference. The limitations period runs
    from that discovery, and Devbrow filed suit just before
    the time expired.
    I. Background
    The following account is limited to the facts that are
    relevant to the statute-of-limitations question, construed
    in the light most favorable to Devbrow. Draper v. Martin,
    
    664 F.3d 1110
    , 1113 (7th Cir. 2011); F ED. R. C IV. P. 56(a).
    Even before he went to prison in 2000, Devbrow knew
    he was at risk for prostate cancer. In 1998 a PSA
    test revealed elevated prostate-specific antigen levels. A
    follow-up biopsy was benign, but his doctor advised
    him to have another test in two to four years. In the
    meantime Devbrow was convicted of a crime and sen-
    tenced to prison by an Indiana court. When he arrived
    at the Pendleton Correctional Facility in May 2000, he
    told the intake physician about his prostate history and
    that his doctor recommended cancer screening within
    two to four years. Four years later, on February 3, 2004,
    a prison doctor ordered a PSA test, and the result—a PSA
    of 13.3 ng/mL—was significantly elevated above the
    level considered to be normal. Nurse Practitioner Kelley
    Carroll requested a urology consultation, but Dr. Eke
    Kalu, the Regional Medical Director for Prison Health
    Services, would not authorize it.
    The test was repeated a week later, and again revealed
    an elevated PSA of 14.1. Dr. Malak Hermina examined
    4                                               No. 12-2467
    Devbrow, found his prostate enlarged, and requested a
    urology consultation. Dr. Kalu again did not authorize
    it, but told Dr. Hermina to obtain Devbrow’s outside
    medical records. Dr. Hermina began that process and also
    ordered an on-site ultrasound. Devbrow had the ultra-
    sound in early March and met with Dr. Hermina to
    discuss the results. Based on the test results and
    his clinical examination, Dr. Hermina again recom-
    mended a urology consultation. Dr. Kalu again denied
    it and instead treated Devbrow for benign prostate hy-
    perplasia.
    Devbrow did not have another PSA test until a year
    later, on February 10, 2005, and by this time his PSA
    level had risen to 18.1. Dr. Hermina again requested a
    urology consultation and also recommended a biopsy.
    Devbrow was taken to the hospital to see a urologist and
    on April 27, 2005, had a prostate biopsy, which revealed
    high-grade prostatic intraepithelial neoplasia, a precursor
    to prostate cancer. A follow-up biopsy on September 25,
    2005, confirmed that Devbrow had prostate cancer. Ac-
    cording to Devbrow’s account of the facts, which we
    accept at this stage and the defendants do not dispute
    “for purposes of the statute of limitations,” he received
    the cancer diagnosis on October 21, 2005. A bone scan
    in December revealed that the cancer had spread
    to Devbrow’s spine and no longer was operable.
    Devbrow learned of the metastasis on December 16,
    2005. Treatment options for metastatic prostate cancer
    are limited, and the ten-year survival rate is less than 15%.
    On October 19, 2007, Devbrow sued Drs. Kalu and
    Hermina and Nurse Practitioner Carroll under § 1983 for
    No. 12-2467                                                  5
    deliberate indifference to his medical needs in violation
    of the Eighth Amendment. He alleged that their delay
    in ordering a prostate biopsy prevented the diagnosis of
    his cancer until after it had metastasized. Hermina and
    Carroll moved for summary judgment, arguing that
    Devbrow’s suit was untimely under the two-year statute
    of limitations. Kalu moved to dismiss on the same
    ground. The district court granted the motions, holding
    that the limitations period commenced on April 27, 2005,
    when Devbrow was referred for a biopsy. At this point,
    the court held, the defendants ceased being indifferent
    to his medical needs and the statute of limitations
    started to run. Counting the time from that date,
    Devbrow’s suit was six months too late. The court entered
    judgment for the defendants, and this appeal followed.
    II. Discussion
    For claims brought under § 1983, we borrow the limita-
    tions period and tolling rules applicable to personal-injury
    claims under state law. Richards v. Mitcheff, 
    696 F.3d 635
    ,
    637 (7th Cir. 2012). The pertinent Indiana statute of limita-
    tions is two years. Id.; IND. C ODE § 34-11-2-4. Accrual rules,
    however, are governed by federal law “conforming in
    general to common-law tort principles.” Wallace v. Kato,
    
    549 U.S. 384
    , 387-88 (2007). There is no single accrual
    rule for all § 1983 claims. Rather, we use the rule that
    applies to the common-law cause of action most similar
    to the kind of claim the plaintiff asserts. Id. at 388
    (drawing on the “distinctive treatment of the torts of
    false arrest and false imprisonment, the causes of action
    6                                                No. 12-2467
    that provide the closest analogy to claims of the type
    considered here” (internal quotation marks and altera-
    tions omitted)).
    The tort claim most closely analogous to a deliberate-
    indifference claim premised on a medical error is
    medical malpractice. Thus, in a recent case asserting a
    § 1983 claim for deliberate indifference based on the
    failure of prison physicians to render needed medical
    care to a prisoner, we applied the statute-of-limitations
    analysis applicable to medical-injury claims under the
    Federal Tort Claims Act. See Richards, 696 F.3d at 637. In
    Richards, as here, the plaintiff was an Indiana prisoner.
    Starting in January 2008, he complained to prison
    doctors of abdominal pain and blood in his stool, but
    they “assured him that he was fine.” Id. at 636. In
    October 2008 they finally referred him to a specialist,
    who promptly diagnosed ulcerative colitis. By that time,
    however, the only solution was to remove his lower
    digestive tract. In December 2010 the prisoner sued the
    prison physicians, and they moved to dismiss based
    on the two-year statute of limitations. The district court
    granted the motion, but we reversed. Id. at 637-38.
    We began by noting that in claims brought under
    § 1983, “[f]ederal law defines when a claim accrues, . . . and
    the federal rule for medical errors is that a claim accrues
    when a person knows his injury and its cause.” Id. at 637.
    For this principle we cited United States v. Kubrick,
    
    444 U.S. 111
     (1979), a case involving a medical-malpractice
    claim brought under the Federal Tort Claims Act. Id.; see
    also Goodhand v. United States, 
    40 F.3d 209
    , 212-14 (7th
    No. 12-2467                                              7
    Cir. 1994) (explaining accrual rules for medical-injury
    claims under the Federal Tort Claims Act). Applying the
    rule from Kubrick, we held that the two-year limitations
    period commenced October 2008 when Richards was
    diagnosed with ulcerative colitis. At that point he
    knew “that he had ulcerative colitis that defendants
    had failed to detect, causing him to lose his lower gastro-
    intestinal tract and anus.” Richards, 696 F.3d at 637. Ac-
    cordingly, Richards illustrates that for a § 1983 claim
    based on medical injury arising from deliberate indif-
    ference, the relevant injury for statute-of-limitations
    purposes is not the intangible harm to the prisoner’s
    constitutional rights but the physical injury caused by
    the defendants’ indifference to the prisoner’s medical
    needs.
    The dispute in Richards, however, centered on tolling
    principles and pleading standards, not accrual rules; the
    date of accrual was uncontested. See id. at 637-38. Ac-
    cordingly, our discussion of when a deliberate-indifference
    claim accrues cannot be characterized as a holding. We
    adopt it as holding now. A § 1983 claim to redress a
    medical injury arising from deliberate indifference to a
    prisoner’s serious medical needs accrues when the
    plaintiff knows of his physical injury and its cause. The
    statute of limitations starts to run when the plaintiff
    discovers his injury and its cause even if the full extent
    or severity of the injury is not yet known. See Goodhand,
    8                                                     No. 12-2467
    
    40 F.3d at 212
    .1 In certain circumstances the limitations
    period may commence later than the date of discovery
    (more on that in a moment), but it does not begin any
    earlier than the date on which the plaintiff knows of
    his physical injury and its cause.
    Applying that general rule here, the accrual date is
    no different than in Richards. Devbrow alleges that the
    defendants were deliberately indifferent to his medical
    needs by unnecessarily delaying a biopsy and thus pre-
    venting the diagnosis of his prostate cancer until it had
    already spread to the bone.2 Like Richards, Devbrow
    1
    We explained in Goodhand that “[t]his is a general principle of
    limitations law, not an idiosyncratic feature of the statute of
    limitations in the Federal Tort Claims Act.” Goodhand v. United
    States, 
    40 F.3d 209
    , 212 (7th Cir. 1994). The principle is subject
    to several important qualifications, notably for cases in-
    volving an injury that “seems trivial, and only much later is
    it discovered to be serious enough to warrant the expense of
    a precomplaint investigation,” and also for cases involving
    “lulling efforts by the defendants.” 
    Id. at 212-13
    . These qualifiers
    may or may not apply here, but because we resolve this case
    under the general discovery rule, we need not address them.
    2
    Although we do not have the merits of Devbrow’s claim
    before us, we note that testing protocols for prostate cancer are
    the subject of debate within the medical profession. See, e.g.,
    V IRGINIA A. M OYER , ON BEHALF OF THE U.S. P REVENTIVE
    S ERVICES T ASK F ORCE , Screening for Prostate Cancer: U.S. Preven-
    tive Services Task Force Recommendation Statement, 157 A NNALS
    OF I NTERNAL M ED . 120 (July 17, 2012); American Urological
    (continued...)
    No. 12-2467                                                   9
    learned of his injury and its cause when the disease
    was diagnosed. He received the cancer diagnosis on
    October 21, 2005, and he learned of the metastasis
    on December 16, 2005. The two-year limitations period
    thus started no earlier than October 21, 2005, and per-
    haps as late as December 16, 2005. Either way, the
    suit—filed on October 19, 2007—is timely.
    The defendants argue that the limitations period began
    earlier, on April 27, 2005, as the district court held. As of
    that date, they contend, the deliberate indifference
    ceased and Devbrow could have sued for nominal or
    presumed damages even without a physical injury. It is
    true that a prisoner may obtain nominal damages for an
    Eighth Amendment deliberate-indifference violation in
    the absence of a compensable physical injury; actual
    damages are not an element of the claim. See Cotts v.
    Osafo, 
    692 F.3d 564
    , 569 (7th Cir. 2012) (“Damages are
    not an element of liability in a deliberate indifference
    claim.”). And a prisoner may also bring an Eighth Amend-
    ment claim when the deliberate indifference of prison
    officials creates a likelihood of future harm even if no
    actual harm is presently manifested. See Helling v.
    McKinney, 
    509 U.S. 25
    , 31-35 (1993).
    But accrual rules are applied to the substance of the
    claim before the court, and this deliberate-indifference
    claim seeks redress for a concrete physical injury, not
    2
    (...continued)
    Association, Prostate-Specific Antigen Best Practices Statement:
    2009 Update, http://www.auanet.org/content/media/psa09.pdf.
    10                                             No. 12-2467
    probabilistic future harm or an abstract injury for which
    nominal damages are available as a remedy. See Sellars
    v. Perry, 
    80 F.3d 243
    , 245 (7th Cir. 1996) (“A Section 1983
    claim accrues when the plaintiff knows or has reason
    to know of the injury that is the basis of his action.”).
    Here, Devbrow alleges that the defendants’ deliberate
    indifference delayed the diagnosis of his cancer until
    after it had metastasized. Devbrow did not know of that
    injury any sooner than October 21, 2005, when he
    received the cancer diagnosis.
    The defendants also rely on Heard v. Sheahan,
    
    253 F.3d 316
    , 320 (7th Cir. 2001), but that case does not
    affect the result here. Our decision in Heard involved
    an application of the “continuing violation” doctrine.
    The plaintiff, an inmate in the Cook County jail, com-
    plained of pain for months, suspecting a hernia, but jail
    officials did not offer him any treatment. He was eventu-
    ally examined by the jail physician, who diagnosed a
    ruptured hernia and recommended surgery, but jail
    officials refused to act on the recommendation. 
    Id. at 317
    . After he was released from jail, he sued the jail
    officials for deliberate indifference to his medical needs
    in violation of the Eighth Amendment. The district
    court dismissed the suit as untimely, concluding that
    the statute of limitations started to run the moment the
    plaintiff knew he had a medical condition that needed
    treatment; counting from that date, the two-year limita-
    tions period expired long before he filed suit. 
    Id. at 318
    .
    We reversed, construing the claim as a continuing
    constitutional violation that persisted for the duration of
    No. 12-2467                                               11
    the inmate’s confinement in the jail. The jail officials
    were aware of his need for treatment and refused to do
    anything about it, and “[t]his refusal continued for as
    long as the defendants had the power to do something
    about his condition, which is to say until he left the jail.”
    
    Id.
     “Every day that they prolonged his agony by not
    treating his painful condition marked a fresh infliction
    of punishment that caused the statute of limitations to
    start running anew.” 
    Id.
     The inmate sued the jail officials
    within two years after he was released, so we held that
    his suit was timely. 
    Id. at 318-19
    .
    Heard thus holds that when the violation of the
    plaintiff’s constitutional rights is a continuing one, the
    statute of limitations does not start to run any earlier
    than the last day of the ongoing injury. 
    Id. at 319
     (“ ‘[T]he
    cause of action accrues at . . . the date of the last in-
    jury.’ ” (emphasis added) (alteration in original) (quoting
    Matson v. Burlington N. Santa Fe R.R., 
    240 F.3d 1233
    , 1237
    (10th Cir. 2001))). The continuing nature of the violation
    in Heard meant that the limitations period did not com-
    mence when the inmate first discovered his medical
    problem, but later, when his constitutional rights were
    last violated—that is, when he left the jail. In other
    words, the continuing-violation doctrine operates to
    delay the start of the limitations period. 
    Id.
     A contrary
    rule, we explained in Heard, would encourage the pro-
    liferation of protective lawsuits. Id. at 320 (“We have
    enough prisoners’ suits without having to create
    incentives to bring multiple suits arising out of the same
    course of events.”). Accordingly, Heard does not
    support the defendants’ argument that Devbrow’s limita-
    12                                                 No. 12-2467
    tions clock started ticking before he knew he had prostate
    cancer.3
    The claim asserted here involves an actual physical
    injury, not an abstract or intangible one. Devbrow
    contends that the defendants’ deliberate indifference
    delayed the diagnosis of his cancer until after it
    metastasized, foreclosing successful medical interven-
    tion. He learned of that injury no earlier than October 21,
    2005, when he received his cancer diagnosis. He filed
    this suit on October 19, 2007, almost two years later and
    just before the statute of limitations expired.
    R EVERSED.
    3
    Because Heard does not apply here, we do not address the
    extent to which our decision in that case has been affected by
    the Supreme Court’s reasoning in Ledbetter v. Goodyear Tire &
    Rubber Co., 
    550 U.S. 618
     (2007), and National Railroad Passenger
    Corp. v. Morgan, 
    536 U.S. 101
     (2002).
    2-1-13