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Prisoner’s Rectal Prolapse Leads to Malpractice Claims

Gil v. Reed, ---F.3d---, 2008 WL 2814824 (C.A. 7, July 23, 2008)

Diego Gil was incarcerated in federal prison in Oxford, Wisconsin when he developed a rectal prolapse. Surgical repair was unsuccessful, the prolapse reappeared, and an infection set in. A physician's assistant at the prison dismissed Gil's plea for medical aid for several days. Doctors eventually saw Gil and prescribed an antibiotic and a painkiller, but another physician's assistant refused to give Gil the medication for a day. After a second surgery, prison staff gave Gil a medication that his doctor warned against.

Gil was then seen by Dr. James Reed, who had previously been sued by Gil for malpractice. Reed cancelled Gil's pending prescriptions and ordered new prescriptions which aggravated Gil's condition. This prompted intervention by Gil's surgeon, who testified he was furious that Dr. Reed ignored his post-surgical instructions.

Gil sued Dr. Reed and a physician's assistant for violating his Eighth Amendment rights by deliberate indifference to his serious medical needs, and also sued the U.S. under the Federal Tort Claims Act. The District Court granted the prison doctor and the physician assistant’s motion for summary judgment, holding that there was insufficient evidence that Gil was harmed by the physician assistant’s failure to provide antibiotics and there was merely a difference of professional opinion between Dr. Reed and the surgeon regarding proper treatment. The District Court also held that the prisoner’s failure to provide expert witnesses to rebut testimony from Dr. Reed and a defense expert regarding compliance with the requisite standard of care was fatal to Gil's FTCA claim.

On appeal, the Seventh Circuit held that it was a “common-sense conclusion” that the delay of the physician assistant in providing prescribed antibiotics delayed the curing of Gil's infection. The Court stated that the expert witness testimony regarding the antibiotics related only to infections that differed from Gil's. The Court held that it could be inferred that the antibiotics prescribed for Gil were medically necessary, since the medical staff prescribed them and Gil improved after receiving them.

The Court also found sufficient evidence to conclude that Dr. Reed's hostility toward Gil may have been a factor in his countermanding the surgeon's post-operation instructions. The Eighth Amendment imposes a duty for government officials to provide medical care to prisoners. Although, the surgeon testified that Dr. Reed's care was not below the standard of care, a reasonable jury could disregard the opinion and rely on other evidence to conclude that Dr. Reed acted with deliberate indifference to Gil's serious medical needs.

The Court also held that Gil's malpractice claims under the FTCA could proceed, because he could rely on defendant’s expert witness and res ipsa loquitur under Wisconsin law. In addition, a jury could conclude from the surgeon’s inconsistent testimony that Dr. Reed and the physician's assistant failed to meet the requisite standard of care.

 

 

Judge(s): Hon. Ilana Diamond Rovner
Jurisdiction: U.S. Court of Appeals, Seventh Circuit
Related Categories: Constitutional Law , Criminal Justice , Health Care , Torts
 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Marc R. Kadish Mayer Brown LLP

 
Defendant Lawyer(s) Defendant Law Firm(s)
Steven Pray O'Connor US Attorney's Office

 

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gence and malpractice under the federal tort claims tylenol iii in violation of his post-surgical instructions. from reed and penaflor, expert testimony from a colo- deliberately indifferent to his serious medical needs. and malpractice. gil also alleged miscellaneous mal- amendment. in gil's first appeal we concluded that he exhibited are not beyond a layperson's grasp." id. in ftca we therefore vacate the district court's grant of sum- judgment on gil's ftca claims, we look to the substan- ment and ftca claims regarding penaflor's actions testified that he did not believe that reed provided gil scribes a state of mind more blameworthy than negli- 1 segregation. the next day gil successfully obtained the pain medication to use as a mere "professional disagree- relieve pain and that the delay in gil's receipt of anti- tion testimony. penaflor, responding to gil's claims delaying antibiotic therapy by 12 hours would not, in subtle, if there is a difference at all. in any event the disposi- we observed that "we need not check our common biotics would not "increase the chances that there could interpretations that must be resolved by a fact-finder. the unavailability of medical care following his first decide, based on common experience aside from the no. 06-1414 7 other acts of prison officials and medical staff. on the downs, 279 n.w.2d 918, 921 (wis. 1979); richards v. reasons as the eighth amendment claims, we need not magnesia because those drugs would dehydrate gil and earlier anger when reed refused to follow his instruc- performed a second rectal prolapse surgery on gil in evidence in the record to conclude that reed acted with denied gil's requests to see a colorectal surgeon who physician's assistant, and the united states for negli- superamerica, llc, 526 f.3d 1099, 1103-04 (7th cir. 2008); liefer, 491 f.3d 710, 714 (7th cir. 2007). prison officials standard-of-care opinions and instead rely on other the court also credited reed's explanation that he cause gil was permitted to rely on his treating physi- before ripple, rovner, and wood, circuit judges. taking tylenol iii because it caused constipation, tylenol iii, leaves little doubt that he knew the drug in the negligence. because the factual record as it stands permits gil, 381 f.3d at 664. the new evidence in the record he was experiencing pain in his abdomen and bleeding the prison medical center as a "misuse of emergency down and stanch his bleeding. the next day a different necessary for his ftca claims to show that his treatment 521 f.3d 769, 776 (7th cir. 2008). but whether wisconsin's at the summary judgment stage and instead requires ____________ near his surgical incisions, but he was instructed to re- not undermine that common-sense conclusion. first, with substandard care, this conclusion contradicts his holding them) is inconclusive: reed says they do, dr. kim regarding whether reed's and penaflor's conduct consti- res ipsa loquitor under wisconsin law with respect to all of thermore, we reasoned, under wisconsin law res ipsa munity. for the united states on gil's ftca claims. the court deine in the tylenol iii." dr. kim testified, however, that argued april 2, 2007--decided july 23, 2008 from his rectum. although reed agreed to renew gil's ment rights by unreasonably delaying his surgery.1 when he disobeyed dr. kim's instructions. reed and penaflor for violating his eighth amendment claims could not survive summary judgment. we con- practice and negligence claims under the ftca based on experience tylenol iii caused more severe constipation surgical recovery. furthermore, the very fact that prison scribe colace "to prevent fecal impaction from the co- follow dr. kim's instructions amounted to deliberate after every bowel movement. prison staff repeatedly indifferent to a prisoner's serious medical needs. estelle, ____________ quire hospitalization. but there is no evidence that gil exacerbate gil's constipation, id. at 664. therefore, we interpretation by a fact-finder. although dr. kim later an issue of material fact regarding reed's state of mind allowed to go to trial on them as well. summary judgment only if there is no genuine issue on may 9, 2000, gil, still constipated, bleeding, and in ii. mendivil, 584 n.w.2d 85, 89 n.5 (wis. ct. app. 1996). thus court found that because gil had failed to retain an appending a note requesting that prison staff follow his pain, scheduled another appointment with reed. reed, 2 expert witness requirement is substantive or procedural, the penaflor's actions--had already been rejected by this dr. harms's opinion that the delay in receiving anti- dant in this case and the prison's clinical director. gil and named only the doctors who had treated him, he could he was harmed, the district court placed much weight fill his prescription for antibiotics. that conclusion is a. evidence that gil's infection caused him pain, that anti- of summary judgment, reversed the denial of gil's no. 00-c-0724-c--barbara b. crabb, chief judge. violate the eighth amendment when they are deliberately cures a painful ailment but is not itself a painkiller can had to push his protruded rectum back into his body can cause harm. in concluding that gil had not shown no. 06-1414 11 to him dr. kim's warning against the drug. and the two medicines were equally effective at controlling pain. the kind of contested factual issue that cannot be resolved magnesia, although he knew that gil was suffering from still reduce harm, and conversely, withholding that drug dr. kim's deposition testimony that antibiotics have no the medical unit several times so the infected bulge nonmoving party." walker v. sheahan, 526 f.3d 973, 977 condition in which the rectal wall slides out of place recommendations that reed acted with deliberate indif- site" and prescribed an antibiotic and tylenol iii, a pain- 8 no. 06-1414 and metamucil are "optional" postoperative treatments. to give him the antibiotic. the court reasoned that mine from their inconsistent testimony that reed did not ference when he prescribed tylenol iii instead of vicodin cluded that gil's ftca claims should survive sum- would only cause injury to patients who suffered from f.3d at 658. under wisconsin law, medical malpractice does not undermine this conclusion; instead, the new therefore granted summary judgment for the defendants claims: the plaintiff must prove that there was a breach no. 06-1414 9 grown to a golf-ball-sized bulge, which the prison staff ftca claims is wrong for the same reasons as its deci- not shown that he was harmed by penaflor's refusal to the district court granted summary judgment for the medical aid a physician's assistant dismissed his visit to difference between the wisconsin rule and the federal rule is united states court of appeals ferent to his medical needs in violation of the eighth "pain relieving effect" does not refute the considerable in gil's first appeal, we expressed doubt about whether under the federal tort claims act ("ftca") and suing prison physician advised gil to stop taking tylenol iii no. 06-1414 3 ment" and opined that gil had not, in his estimation, re- milk of magnesia, colace, and metamucil--all laxa- tylenol iii. reed nonetheless prescribed tylenol iii for movements. the surgery was not a success and gil's reed's deliberate indifference to serious medical needs instructions, and repeated to gil his warning against was not suffering a severe infection aside from the fact gil antibiotics but nonetheless he "would not have pur- tion of this case does not hinge on the distinction. we therefore in this case, the district court concluded that gil had the district court placed significant weight on gil's has presented evidence that reed's post-operative treat- of care through expert testimony. id. at 661. we also sionals. the court concluded that gil had not shown metamucil and milk of magnesia. the court placed par- facts construed in the light most favorable to gil. see gil, gil waited for one hour before returning to his cell to lie ____________ ical staff diagnosed gil with cellulitis just hours before uine issue of material fact about reed's state of mind." the district court ultimately granted the defendants' motion is not for the squeamish, we briefly recount the relevant failure to present expert witnesses to testify regarding and when doctors finally examined him, his infection had and simultaneously cancelled gil's prescriptions for 6 no. 06-1414 characterized reed's failure to follow dr. kim's instruc- regarding whether he was harmed by penaflor's refusal the district court's grant of summary judgment for the 429 u.s. at 104; williams, 491 f.3d at 714. at 662-63. not fill it for another three days. reed also prescribed tions. see gil, 381 f.3d at 653. a reasonable jury rules govern procedural matters. see arpin v. united states, doctors' testimony, that penaflor's and reed's treatment did not meet a reasonable standard of care. the court under wisconsin law gil must provide an expert opinion his medical assistance after suing him. when gil met accordance with wisconsin law, he had presented no on appeal gil first argues that the district court erred "delay in providing antibiotics will necessarily delay the killer. gil was informed that the drugs would be avail- cir. 2000). the district court may grant a motion for deliberate indifference to gil's serious medical needs. flatly contradicted by our opinion in gil's first appeal, no. 06-1414 5 actions raised a genuine issue of material fact regarding otic, and when gil asked why he could not have his could be lanced and drained. judgment on his eighth amendment claims, he neces- these conclusory opinions. a rational jury could deter- iii. dictory portions of their testimony might undermine ment on the ftca clams for essentially the same flawed contends that his eighth amendment claim against reed medication the specialist warned against because of its found that the evidence did not support a claim for dr. harms also believed that gil's medical treatment did negligence. alternatively, he may show that an ordinary despite the surgery gil's medical condition continued fed. r. civ. p. 56(c). to overcome a motion for sum- had, and he stated that he does not "put patients on a full factual recitation appears in our opinion in gil's him by withholding his antibiotics. of a duty owed that results in an injury. see paul v. skep, mary judgment under wisconsin's expertise rules be- clusion that an antibiotic was necessary for gil's post- laration that he discontinued dr. kim's prescriptions cases, state law applies to substantive questions and federal has the same ingredients as garden-variety negligence "nothing in wisconsin law prevents a plaintiff from curing of the infection or possibly lead to its spread." gil, finally gil asserts that he should be allowed to proceed expert witness as required by wisconsin law and instead tuted deliberate indifference to gil's medical needs. id. could give him specialized advice regarding his medical an "infection/cellulitis/abscess formation at surgical plemented the record with new evidence, including an act. he also claimed that they were deliberately indif- defendants a second time. we once again vacate the whether reed met the applicable standard of care. in nonmoving party. sherrod v. lingle, 223 f.3d 605, 610 (7th sarily can do so with respect to his less stringent ftca give him prescribed antibiotics and reed's failure to should be allowed to go forward because there is be resolved at the summary judgment phase. the next day gil saw dr. james reed, the second defen- where we concluded that he had provided enough evi- and milk of magnesia should not cause dehydration. 24 hours gil felt better, although he had to return to nal problems, has been incarcerated in federal prison v. gamble, 429 u.s. 97, 104-05 (1976); see also williams v. and united states of america, where defendant jaime penaflor, a physician's assistant gence"). the district court's rationale for denying gil's mary judgment on gil's eighth amendment claims be- i. on dr. kim's testimony that withholding antibiotics had failed to present evidence that he was harmed by posefully denied mr. gil the antibiotic in an effort to regarding the standard of care, thus eliminating any patient does not suffer from cellulitis. but prison med- cause additional pain or suffering by the patient." gil had surgery to repair a rectal prolapse, an unpleasant told reed that dr. kim had warned him not to take biotics was sufficient to create a genuine issue of fact his ftca claims, including his miscellaneous claims for ticular weight on dr. kim's and dr. harms's opinions diego gil, a federal prisoner, sued a prison doctor, a ____________ cellulitis," a skin infection. dr. harms also claimed that gave gil everything dr. kim had prescribed except for priate standard of care." see gil, 381 f.3d at 659. on of gil fell short of appropriate treatment. gil is entitled delay in giving gil his medications would not affect his sion on his eighth amendment claims, and gil must be which would worsen his condition. prison medical staff whether prison personnel were deliberately indifferent understood tylenol iii's adverse side effects, gil relayed evidence that a "jury could reasonably find for the the standard for reviewing a district court's grant of given gil tylenol iii instead of vicodin because in his the defendants again moved for summary judgment gil did not receive any medical care for several days, expert report, several declarations, and depositions of for summary judgment in that suit. see gil v. jones, no. 99-c-38- tion, there is no evidence in the record suggesting that antibiotics from a different medical staff member. within tylenol iii. reed prescribed it nonetheless and then v. court in his first appeal and the new evidence on antibiotics unless they have a significant spreading of tive was available) while simultaneously cancelling the found that, because gil had not retained an expert in nor is reed entitled to summary judgment on gil's 4 no. 06-1414 cause penaflor's angry refusal to provide needed anti- they always do. although the record contains new evi- in reviewing the district court's grant of summary the case for trial on all claims. he could not have been injured had his medical pro- that he had not had a bowel movement since the opera- first appeal, and so, repeating our warning that this case ceived substandard care. he also testified that metamucil defendants. see gil v. reed, 381 f.3d 649 (7th cir. 2004). had presented a genuine issue of material fact regarding next concluded that gil had produced no evidence that gil appealed, and we vacated the district court's grant dr. kim described his conflict with reed over which tive law of the place where the malpractice occurred-- in favor of gil, dr. harms's testimony supports the con- biotics did not harm gil was based on cases where the be a severe infection." because he and dr. kim had simply had a difference 10 no. 06-1414 not fall below the standard of care provided in the com- tions as a difference of opinion between medical profes- recovery from surgery, removed any factual dispute dence to create a question of fact on the issue of harm. loquitur could obviate the need to establish the standard had failed to provide an expert witness, his ftca pain-killing effect (thus eliminating any possibility that caused dehydration (reed's explanation for with- cir. 1994) (explaining that "deliberate indifference de- milk of magnesia prescription, the prison pharmacy did no. 06-1414 15 2 no. 06-1414 enough evidence in the record to show that reed was the court next concluded that a reasonable trier of fact constipating effect (when a non-constipating alterna- pointed counsel. claims. see del raine v. williford, 32 f.3d 1024, 1031 (7th occasion he made gil wait for 6 hours past his sched- for the western district of wisconsin. options, but they finally allowed gil to see a specialist a pick up his prescriptions penaflor gave him only tylenol year and a half later. that physician, dr. michael kim, structed gil went that evening to the medication line, that he was harmed because of penaflor's and reed's b. medical staff prescribed him an antibiotic is evidence gil a laxative to counteract the constipating effects of dr. harms, for his part, declared that vicodin and tylenol remand did nothing to revise that conclusion. gil also against him, stated that he did not remember denying could constipate gil. moreover, even if reed had not claims. the court also denied gil's requests for ap- of drugs used by the bureau of prisons. instead prison reed had met the standard of care, but other contra- medications the next day. court concluded that gil's eighth amendment claim motions for appointed counsel, and remanded the case rights. gil's complaint alleged that penaflor's refusal to since 1993 and is currently housed at the federal correc- ment officials to provide medical care to prisoners. estelle a third time, and when gil went to the medication line to potential factual question. but because the district court granted summary judg- dr. kim rewrote his original prescriptions, this time however, was not available at the scheduled time, and evidence submitted on remand is susceptible to multiple to the district court. gil, 381 f.3d at 664. we held that penaflor angrily refused to give gil the prescribed antibi- ment violated the standard of care. regarding whether gil was harmed by penaflor's actions. rovner, circuit judge. this is the second time that we ant's agents . . . to supply evidence regarding the appro- on both the ftca claims and the eighth amendment witness, opined that drainage, not antibiotic therapy, is the defendants also submitted new evidence re- for the seventh circuit than vicodin. dr. kim conceded, however, that the biotics were necessary to cure that infection, and that he ultaneously cancelling the laxatives. this is precisely 14 no. 06-1414 unsurprisingly complained of constipation, reporting usca-02-c-0072--7-23-08 two witnesses, including gil. based on that evidence, decided that the district court erred in granting sum- 625 n.w.2d 860, 865 (wis. 2001). in most cases, wis- remand dr. kim and dr. harms summarily opined that garding the claims against reed. reed stated in his dec- rectal surgeon, dr. bruce harms, and dr. kim's deposi- when switching from vicodin to tylenol iii and sim- staff substituted tylenol iii. because gil had failed to raise an issue of material fact plaintiff-appellant, of opinion regarding gil's post-surgical care. the court because the court's rationale for those decisions--that gil the eighth amendment imposes a duty on govern- here, wisconsin. 28 u.s.c. 1346(b)(1). see also gil, 381 the primary treatment for an abscess like the one gil finally, the district court granted summary judgment turn to his unit. reed had a history of bad blood. after gil's first surgery c, 2000 wl 34235979, at *3 (w.d. wis. july 20, 2000). not as a matter of law produce the expert testimony 12 no. 06-1414 cians to establish the standard of care. id. at 659-60. fur- second, dr. kim's testimony that antibiotics have no district court's judgment and remand the case for trial. against penaflor could not survive summary judgment with reed the day after his second surgery, his suit to deteriorate. his rectum prolapsed again, and so he medication, penaflor threatened him with disciplinary was openly hostile toward gil after he filed suit; on one summary judgment is a familiar one, but it bears re- defendants' summary judgment motion, the district 381 f.3d at 651-54. gil, who has long suffered from intesti- necessary. lanced and drained. the prison staff noted that gil had dence, our conclusion remains the same: gil has raised a gil saw dr. kim, who was angry that reed had prescribed 381 f.3d at 662. dr. kim's and dr. harms's testimony do no. 06-1414 mary judgment, the record must contain only enough felt better once he received the antibiotics. a drug that care." gil showed the physician's assistant an infection cancelled gil's prescriptions for metamucil and milk of multiple interpretations, those inconsistencies cannot tional institution in oxford, wisconsin. in march 1998 defendants-appellees. constipation. gil saw reed again three days later and whether he was deliberately attempting to prolong or evidence to rebut dr. kim's and dr. harms's testimony gil tylenol iii once again despite dr. kim's warning draw all inferences from those facts in favor of the on remand, the defendants submitted declarations permitting the inference that the drug was medically sense at the door" in analyzing gil's injury and that a antibiotics), together with dr. harms's opinion that the meet the standard of care. moreover, a layman could person could conclude from common experience that do not answer the question here. he was harmed by penaflor's actions. the court also (7th cir. 2008). employed by the prison, was dispensing medicines. consin law requires expert testimony to establish medical reed able at the prison's medication line later that day and he was "unhappy" when he discovered that reed had tion five days before, that he could not urinate, and that no. 06-1414 13 for milk of magnesia and metamucil after gil's second 381 f.3d at 659. the federal rule, unlike the wisconsin one, with severe infections may usually require hospitaliza- gil's case, "significantly affect abscess treatment or when it granted summary judgment on his eighth amend- viders exercised care. richards, 548 n.w.2d at 89 n.5.2 relying on the defendant (such as reed) or the defend- says they do not. in any case, gil has presented suf- could not infer from reed's failure to follow dr. kim's immediately and substituted motrin. two days later negligence, although res ipsa loquitur can substitute for regarding any material fact. harney v. speedway tives--to prevent fecal impaction, as well as vicodin to regarding his state of mind, id. at 661-62, and reed's could disregard dr. kim's and dr. harms's conclusory expert testimony. see gil, 381 f.3d at 659; christianson v. indifference of his serious medical needs, negligence, cancelled gil's prescriptions for metamucil and milk of cause him harm or discomfort." dr. harms, the expert ion on summary judgment, and we construe all facts and question of fact on the issue of whether penaflor harmed dehydration. reed maintained that he continued to pre- to rely on the defendants' expert testimony as well as diego gil, brought this action on december 21, 2000, suing the where the federal rules of evidence apply exclusively. see gil, vicodin, which is evidently not included on the formulary james reed, james penaflor, frustrated with his medical care at the prison, gil to his medical needs. on remand the defendants sup- appeal from the united states district court against it. reed's declaration, in which he admits that he prescribed against reed was still pending. at that appointment gil penaflor denied his prescription. drawing all inferences the district court erred when it ruled that, because gil holds that "no expert testimony is needed when the symptoms wisconsin's expertise rule should be applied in federal court mary judgment in favor of the defendants and remand and protrudes from the anus, usually during bowel therapeutic effects and risks" and that milk of magnesia soft-tissue infections so severe that they would re- surgery, the delay in receiving his second surgery, and volved in gil's first surgery, stated that antibiotics do not that gil's post-operative treatment was medically proper. uled appointment time and then berated gil for seeking surgery because, in his view, they might cause severe on his ftca claims based on reed's actions because he that he was not hospitalized, and although people gil's first appeal we rejected this argument because may 2000. following the surgery, dr. kim prescribed factual record on whether gil's other prescribed drugs treat his pain. dr. kim specifically warned gil against gil suffered increased pain when penaflor withheld his two of the three prescribed laxatives gives rise to a gen- united states for negligence and medical malpractice peating here. we review de novo a district court's decis- that he should start taking them immediately. as in- belabor this point. because gil can overcome summary have heard this case and the second time that we vacate in 1998, gil sued reed for violating his eighth amend- eighth amendment claim. in gil's first appeal, we con- and the district court again granted their motion. the dr. kim, testifying as an expert because he was not in- iii. medical staff finally provided gil with the correct ficient evidence to call into question reed's state of mind iii are "interchangeable as pain medications with similar see walker, 526 f.3d at 979. explained, there was a genuine issue of material fact condition worsened, but when he asked prison staff for cluded that "prescribing on three occasions the very


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