CHAMBERS v. VAISVILAS et al
ENTRY Discussing Motion for Summary Judgment - granting 69 Motion for Summary Judgment. See Entry. All claims have now been resolved against all defendants. Judgment consistent with this Entry and with the Entry of July 26, 2011, dismissing the claim against defendant Rose Vaisvilas, shall now issue. Copy to plaintiff vis US Mail. Signed by Judge William T. Lawrence on 3/15/2012. (RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DR. MICHAEL MITCHEFF, et al.,
Entry Discussing Motion for Summary Judgment
Plaintiff Robert Chambers (AChambers@) has been incarcerated at the
Wabash Valley Correction Facility (“WVCF”) at all times relevant to this complaint.
Chambers voluntarily dismissed his claim against defendant Rose Vaisvilas on July
26, 2011. Chambers alleges that the remaining two defendants, Dr. Michael
Mitcheff and Dr. Alfred Talens were deliberately indifferent to his serious medical
needs. These defendants seek resolution of Chambers’ claims through the entry of
For the reasons explained in this Entry, the remaining defendants= motion for
summary judgment  is granted.1
I. Summary Judgment Standard
A motion for summary judgment must be granted Aif 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.” Rule 56(a) of the Federal Rules of Civil Procedure. A
“material fact” is one that “might affect the outcome of the suit.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine only if a reasonable jury
could find for the non-moving party. Id. “The applicable substantive law will dictate
which facts are material.@ National Soffit & Escutcheons, Inc., v. Superior Systems,
Inc., 98 F.3d 262, 265 (7th Cir. 1996) (citing Anderson, 477 U.S. at 248). The court
views the facts in the light most favorable to the non-moving party and all
reasonable inferences are drawn in the non-movant=s favor. Ault v. Speicher, 634
F.3d 942, 945 (7th Cir. 2011).
Chambers requests that the court strike his deposition from the record because the
defendants failed to seek leave to take his deposition in accordance with Rule 30 of the
Federal Rules of Civil Procedure. His request is denied because leave was granted for the
defendants to take his deposition. See Order of May 18, 2011 [docket #56].
A. Undisputed Facts
On the basis of the pleadings and the expanded record, and specifically on the
portions of that record which comply with the requirements of Rule 56(c), the
following facts, construed in the manner most favorable to Chambers as the nonmovant, are undisputed for purposes of the motion for summary judgment:
At all relevant times, Dr. Talens was a treating physician at the WVCF. He
was licensed to practice medicine in the State of Indiana in 1979, and his specialty
was general surgery. Dr. Talens first examined Chambers on May 8, 2008, for
complaints of abdominal pain. Dr. Talens ordered fecal occult blood stool tests and
prescribed Metamucil, Milk of Magnesia, and Colace, all of which are medications to
relieve constipation. The stool was negative for occult blood. Chambers saw Dr.
Talens again on May 17, 2008, because his pain had continued and spread to his
groin, and the medications were not helping. No changes in medication were made.
On June 26, 2008, Dr. Talens ordered an x-ray of Chambers’ abdomen. The results
showed evidence of constipation with no abnormal intra-abdominal calcifications
and no evidence of obstruction.
Chambers saw Dr. Talens again on July 22, 2008, because the pain had
worsened and the laxatives were not working. Dr. Talens examined Chambers for
abdominal pain and determined that the stool occult blood tests had returned
positive for blood in his stool two out of three times. Dr. Talens submitted a
consultation request for an air contrast barium enema.
At all relevant times, Dr. Mitcheff was the Regional Medical Director for
Corizon, Inc., f/k/a Correctional Medical Services, Inc. Dr. Mitcheff has practiced
medicine since 1987, and his specialty is emergency medicine. After reviewing the
consultation request, Dr. Mitcheff suggested an alternative treatment plan
consisting of further diagnostic testing, i.e. additional fecal occult blood tests, to
confirm the need for an air contrast barium enema before proceeding with the
requested enema. Dr. Mitcheff recommended that Dr. Talens submit a follow-up
consultation request depending on the additional test results.
On August 3, 2008, Chambers requested to see a nurse and an appointment
with the doctor because he was still having pain and a lot of trouble defecating. He
also submitted a written request to find out whether the barium enema had been
approved. On August 4, 2008, a written response was issued to Chambers stating
that his request had been “deferred” and that “alternative treatment” was
On July 25, 2008, Dr. Talens ordered follow-up fecal occult blood tests every
week for one month. On August 16 and August 20, 2008, Chambers submitted
requests to see the doctor because his pain was worse. On August 20, 2008, Dr.
Talens saw Chambers for complaints of “lots of left upper abdominal pain” and “lots
of mucous with stools.” No medications were prescribed at this time. Dr. Talens
submitted another request for an air contrast barium enema. The request described
Chambers’ symptoms as on and off left upper abdominal pain for months, mucous
with bowel movements, pain sometimes colicky and lasted for an hour or two,
regular bowel movements, denied diarrhea and constipation, stool negative
hemoccult, and an unremarkable abdominal and rectal exam.
On August 20, 2008, Dr. Mitcheff denied Dr. Talen’s second consultation
request. Dr. Mitcheff denied the barium enema request and recommended that Dr.
Talens continue to follow Chambers conservatively on-site. Dr. Mitcheff also
recommended that Dr. Talens perform a digital rectal examination or an anoscope.
Dr. Mitcheff indicated that if there was a change in symptoms, the request could be
On September 16, 2008, Chambers submitted a sick call request because the
abdominal pain and dizziness he had been experiencing since October 2007 was
worse. Chambers saw Dr. Talens on September 18, 2008. The chart notes that his
stool was negative for occult blood. Dr. Talens suggested that Chambers increase
his activity level, increase his fluid intake, and use a warm compress. He told
Chambers that the State was refusing his requests and he suggested that
Chambers keep a journal of his symptoms. Dr. Talens saw Chambers again on
September 23, 2008. Dr. Talens noted a long history of left sided abdominal pain. A
stool occult blood test was ordered.
Chambers requested an appointment with a doctor on October 5, 2008. He
was seen by Dr. Talens on October 10, 2008. Dr. Talens prescribed Colace and
Metamucil and increased fluid intake. On October 24, 2008, Chambers requested
medical assistance because for a year he had been in pain and experienced dizziness
and constipation but had not yet been given a diagnosis. On October 28, 2008,
Chambers saw Dr. Talens. The medications were continued.
On January 10, 2009, Chambers submitted a request for health care, stating
that he was still having the same abdominal pain and dizziness that he had
experienced since October 2007. Dr. Talens examined Chambers on January 12,
2009. Chambers reported left lower abdominal pain for about a year, everyday
lately. He also reported some blood with stools. Another fecal occult blood test was
completed. Dr. Talens examined Chambers again on February 9, 2009. No
medications or additional tests were ordered. Dr. Talens told Chambers he could not
do anything more.
On March 2, 2009, Chambers began seeing Dr. Rogan. Chambers reported
that during the past five months he had increasing abdominal girth but no weight
gain. Dr. Rogan suspected irritable bowel syndrome (“IBS”). On April 1, 2009, Dr.
Rogan examined Chambers, noting that there had been no change in symptoms. Dr.
Rogan did not find any distension, and he noted that the previous diagnoses of
“gastrointestinal hemorrhage” and “blood in stool” appear to have been based on
history and not borne out by physical or laboratory tests. He prescribed a new
medication, magnesium citrate.
On April 24, 2009, Dr. Rogan prescribed Toradol and Pamelor. On June 23,
2009, Dr. Rogan noted that he had been treating Chambers as having IBS, but
usual treatments had been ineffective thus far. Dr. Rogan noted that a “GU exam”
was normal and there was no hernia visible or palpable. He further noted that the
hemoccult blood stool tests had been negative 3 times out of 3 per EMR lab results,
but there was a physician note from July 22, 2008, stating that the results were
positive 2 times out of 3. Dr. Rogan examined Chambers nine times over fifteen
months. Dr. Rogan tried medications for IBS but none of them helped. On June 23,
2009, Dr. Rogan submitted a consultation request for a CT scan of Chambers’
abdomen and pelvis.
On June 24, 2009, Dr. Mitcheff reviewed Dr. Rogan’s consultation request
and agreed with Dr. Rogan that a CT scan of Chambers’ abdomen and pelvis was
medically warranted. On July 22, 2009, Chambers received the CT scan, which
returned clinically unremarkable as to the abdomen. The CT scan of the pelvis
revealed the possibility of a small amount of free fluid in the lower pelvis. The CT
scan of the pelvis was otherwise clinically unremarkable.
Chambers was admitted to the infirmary for skilled care on August 13, 2009,
for further workup, last tests, observation, and treatment of abdominal pain. Dr.
Rogan noted that Chambers’ condition was negative for diarrhea, nausea, vomiting,
weight loss, distention, abdominal tenderness, hernia, or palpable masses. New
medications, Hyomax-sr and Fibercon, were prescribed. Chambers was discharged
to the general population on August 17, 2009.
On August 20, 2009, Dr. Rogan reviewed the benign CT and laboratory
findings with Chambers. Dr. Rogan discussed with Chambers the possibility of the
symptoms being exacerbated by psychological stress, but Chambers denied any
particular anxiety over the past 15 months and preferred to avoid psychotropic
medications. Hyomax-sr was continued and Fibercon was discontinued. Again on
September 30, 2009, Dr. Rogan noted that a GU exam was normal and there was no
hernia visible or palpable. Hyomax-sr was continued and Fibercon was started
On November 30, 2009, Dr. Mitcheff and Dr. Rogan discussed Chambers’
treatment plan and both physicians agreed to proceed with an air contrast barium
enema. On December 24, 2009, Chambers reported to Dr. Rogan that the Levbid
(Hyomax-sr) had not been helpful and that the full sensation he felt now involved
the left testicle and left lung, and it felt worse worst after ingestion of food and
water. Chambers continued to resist taking meds with psychotropic effects. The
medications, Fibercon and Hyomax-sr, were stopped.
On March 10, 2010, Chambers continued to report abdominal pain radiating
to testicles and lungs. It was often worse after eating and drinking, but not always.
Dr. Rogan noted that workup to this point had included CT scans, stool studies,
blood work, CXR, and multiple physical exams, all without clear diagnosis. Dr.
Rogan continued to believe that IBS was most likely involved. Chambers continued
to decline antidepressant medications for stress. On March 24, 2010, Chambers
received an air contrast barium enema, which returned negative for any
obstructions, polyps, abnormalities, lesions, or masses.
On June 4, 2010, Dr. Rogan examined Chambers for complaints of scrotal
pain. Dr. Rogan noted that Chambers had reported lower abdominal pain for
approximately two years without diagnosis despite labs, stool studies, CT, and
barium enema. On examination, there were no abnormal masses or hernia.
Chambers declined pain medication. Dr. Rogan ordered scrotal support for
Chambers and submitted a request for a testicular ultrasound. Dr. Mitcheff
approved the testicular ultrasound due to Chambers’ complaints that his abdominal
pain had started to radiate down into his testicles. The bilateral testicular
sonogram was performed at the Sullivan County Community Hospital and it
On August 28, 2010, Dr. Mitcheff reviewed a consultation request from Dr.
Michael Person, a treating physician at WVCF, for Chambers to receive a
colonoscopy. Dr. Mitcheff agreed that the colonoscopy was medically warranted. On
October 14, 2010, a colonoscopy was performed at the Regenstrief Health Center.
The physicians removed a small, non-cancerous polyp from Chambers’ colon during
the colonoscopy. They opined that the polyp was likely not the cause of constipation
On October 20, 2010, Dr. Stoller examined Chambers at WVCF, noting that
the total colonoscopy had returned normal. His notes indicate an assessment of a
femoral hernia and marked tenderness in left femoral canal area. He noted that he
would seek approval for surgery at Wishard Hospital. There is no indication in the
record that such approval was requested.
On January 20, 2011, Chambers saw Dr. Talens. Dr. Talens noted that
Chambers had been complaining of left groin pain for years and that it was getting
worse. The pain was worse when Chambers walked and it went away when he laid
down. Chambers reported that he had been told by a doctor that he had a hernia.
Dr. Talens’ examination was “unremarkable.” Dr. Talens ordered an x-ray of
Chambers’ abdominal cavity. The x-ray returned “negative,” with the comment that
“further evaluation of an inguinal hernia should be based on clinical judgment.”
Chambers saw Dr. Talens again on February 9, 2011. Dr. Talens requested a
CT scan of the left groin area. In his request, Dr. Talens reported that Chambers’
pain was consistently at the left groin, compatible with a hernia, but examinations
by several examiners had been repeatedly negative. Dr. Talens indicated that this
was “highly suspicious of rare hernia,” a Spigelian hernia. That same day, Dr.
Mitcheff approved the CT scan of the left groin area. The CT scan was performed on
March 7, 2011. The impression was “normal CT of the abdomen and pelvis.” The
report indicated that there was no Spigelian hernia and no inguinal hernia.
On March 9, 2011, Dr. Talens requested a general surgical consultation for
Chambers’ left groin pain at Wishard Memorial Hospital. Dr. Mitcheff approved the
surgical consult. On April 12, 2011, Chambers presented to Wishard Memorial
Hospital for his consultation. The Wishard Hospital physicians physically examined
Chambers and reviewed the Sullivan County Community Hospital CT scan of the
abdomen and pelvis. They found no hernia. Surgery was not recommended for
Chambers. The physicians recommended stool softeners, to be evaluated in the pain
clinic, and a return visit if he developed a hernia. Otherwise, they reported that his
care should be dictated by his regular physicians.
Dr. Talens saw Chambers after his surgery consult on April 12, 2011.
Chambers told Dr. Talens that when he was seen at Wishard Hospital, one young
doctor, Dr Gayed, examined him and diagnosed him with a femoral hernia, but then
an older doctor, Dr. Gomez, examined him differently and said he had no hernia.
The “dictating” physician, Dr. Gayed, and “staff” physician, Dr. Gomez, reported in
writing “[n]o hernias noted on examination or on imaging.” Dr. Talens
recommended continuation of local treatment with warm compress and that
Chambers write in a diary the course of his symptoms. He recommended a
reevaluation in the future and/or getting a second opinion.
Chambers saw Dr. Talens again on May 18, 2011. Dr. Talens requested
another general surgery consultation for a second opinion. Dr. Talens retired in late
May of 2011. Chambers submitted a written request for health care on June 28,
2011, to find out if Dr. Talens’ request for a specialty consultation was approved.
The response of health care staff was “onsite treatment.”
At the time of his confinement at the WVCF, Chambers was a convicted
offender. Accordingly, his treatment and the conditions of his confinement are
evaluated under standards established by the Eighth Amendment=s proscription
against the imposition of cruel and unusual punishments. Helling v. McKinney, 509
U.S. 25, 31 (1993) (“It is undisputed that the treatment a prisoner receives in prison
and the conditions under which he is confined are subject to scrutiny under the
Pursuant to the Eighth Amendment, prison officials have a duty to provide
humane conditions of confinement, meaning, they must take reasonable measures
to guarantee the safety of the inmates and ensure that they receive adequate food,
clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To
establish a medical claim that a prison official has violated the Eighth Amendment,
a plaintiff must demonstrate two elements: (1) an objectively serious medical
condition; and (2) deliberate indifference by the prison officials to that condition.
Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006).
A[A]n objectively serious medical need is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor's attention.@ Id. at 584-85 (internal
quotation omitted). The defendants do not dispute that Chambers had an
objectively serious medical condition.
As to the second element, A[t]o show deliberate indifference, the plaintiff must
demonstrate that the defendant was actually aware of a serious medical need but
then was deliberately indifferent to it.@ Knight v. Wiseman, 590 F.3d 458, 463 (7th
Cir. 2009). For a medical professional to be liable for deliberate indifference to an
inmate's medical needs, he or she must make a decision that represents “such a
substantial departure from accepted professional judgment, practice, or standards,
as to demonstrate that the person responsible actually did not base the decision on
such a judgment.” Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008) (internal
quotation omitted); see also Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.
2006). ADeliberate indifference is more than negligence and approaches intentional
wrongdoing.@ Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006) (internal
quotation omitted). A[D]eliberate indifference is essentially a criminal recklessness
standard, that is, ignoring a known risk.@ Id. (internal quotation omitted). AEven
gross negligence is below the standard needed to impose constitutional liability.@
Id. (internal quotation omitted).
The claim against Dr. Mitcheff is that he was responsible for Chambers’ lack
of medical treatment. Chambers alleges in his complaint that Dr. Mitcheff denied
requests for tests, colonoscopies, enemas, and MRIs that had been submitted by
prison physicians on April 30, 2008, July 21, 2008, August 20, 2008, September 10,
2008, March 2, 2009, April 14, 2009, June 8, 2009, and September 30, 2009.
Chambers alleges that Dr. Mitcheff’s repeated and continuing denials of examining
doctors’ orders show a pattern of reckless disregard for Chambers’ serious medical
Chambers’ allegations misstate the record. There were no requests submitted
to Dr. Mitcheff by any physicians for any special tests on April 30, 2008, September
10, 2008, March 2, 2009, April 14, 2009, June 8, 2009, or September 30, 2009. On
July 23, 2008, Dr. Mitcheff did review a request for approval submitted by Dr.
Talens for Chambers to receive an air contrast barium enema. Dr. Mitcheff denied
this request and recommended that additional fecal occult blood stool tests first be
performed to confirm the need for the enema. On August 20, 2008, Dr. Mitcheff
reviewed a second request from Dr. Talens for the air contrast barium enema. Dr.
Mitcheff denied the request and recommended that Dr. Talens consider performing
an anoscope or a digital rectal examination. Dr. Mitcheff also noted that if
Chambers’ symptoms changed, Dr. Talens should submit another consultation
request. On September 18, 2008, Chambers’ stool was negative for occult blood.
On June 24, 2009, Dr. Mitcheff approved a consultation request for Chambers
to receive a CT scan of his abdomen and pelvis. The CT scan was clinically
unremarkable except for a small amount of free fluid in the lower pelvis, which Dr.
Rogan considered to be benign. On November 30, 2009, Dr. Mitcheff discussed
Chambers’ condition with Dr. Rogan and Dr. Mitcheff approved an air contrast
barium enema. The air contrast barium enema was not performed until March 24,
2010, but there is no evidence that Dr. Mitcheff delayed the enema in any way. The
results were negative for any polyps or other abnormalities.
In June 2010, Dr. Mitcheff approved a consultation request for Chambers to
receive a testicular ultrasound. The ultrasound was performed at a local hospital
and it returned “normal.” In August 2010, Dr. Mitcheff approved a consultation
request for Chambers to receive a colonoscopy. The physicians who performed the
colonoscopy removed a small, non-cancerous polyp from Chambers’ colon. The
physicians opined that the polyp had not caused Chambers’ constipation and pain.
In February of 2011, Dr. Mitcheff approved a consultation request from Dr.
Talens for Chambers to receive a CT scan of his left groin area. The results of the
CT scan of the abdomen and pelvis were “normal.” In March of 2011, Dr. Mitcheff
approved a surgical consultation submitted by Dr. Talens. Chambers was seen in
the surgical clinic at Wishard Memorial Hospital and the physicians found no
hernia and recommended that Chambers not have surgery.
As is clear from the above time-line, Dr. Mitcheff did not, in fact, demonstrate
a pattern of reckless disregard for Chambers’ serious medical needs. If anything,
Dr. Mitcheff exhibited a pattern of approving various outside tests in an effort to
diagnose the cause of Chambers’ pain. The initial two requests for an air contrast
barium enema were reviewed and conservative treatment measures and confirming
tests were recommended instead. A prisoner's dissatisfaction with a certain course
of treatment does not support an Eighth Amendment violation unless the medical
treatment was “so blatantly inappropriate as to evidence intentional mistreatment
likely to seriously aggravate” the prisoner's condition. Edwards v. Snyder, 478 F.3d
827, 831 (7th Cir.2007). There is no evidence that Dr. Mitcheff did not exercise
reasonable medical judgment in responding to the first two requests for the barium
enema. Thereafter, Dr. Mitcheff approved a number of tests, including an
ultrasound, a colonoscopy, CT scans, and an air contrast barium enema. Finally, he
approved a surgery consult with an outside hospital, and the surgeons concluded
that surgery was not recommended. “We examine the totality of an inmate's
medical care when determining whether prison officials have been deliberately
indifferent to an inmate's serious medical needs.” Walker v. Peters, 233 F.3d 494,
501 (7th Cir. 2000). The totality of care approved by Dr. Mitcheff negates any
inference of deliberate indifference.
Chambers further alleges that Dr. Mitcheff denied a request for surgery
submitted by Dr. Stoller on October 20, 2010. The chart cited by Chambers is an
examination by Dr. Stoller after a colonoscopy was performed and returned normal.
Dr. Stoller indicated that he “will seek approval for a surgical consult at Wishard.”
Chambers argues that Dr. Mitcheff has failed to include in his affidavit any
mention of Dr. Stoller’s surgical consultation request and that therefore, a jury
could infer that Dr. Mitcheff was aware of the request and of Chambers’ pain, but
merely chose to ignore both.
Contrary to Chambers’ suggestion, there is no evidence that a surgical
consultation request was actually prepared by Dr. Stoller and received by Dr.
Mitcheff. There can be no inference made as to Dr. Mitcheff’s lack of response to a
surgical request which apparently was not submitted.
Chambers next argues that Dr. Mitcheff denied Dr. Talens’ second request for
a surgical consultation in May of 2011, and instead recommended “on-site
treatment,” knowing that “on-site treatment” amounted to “no treatment at all.”
Chambers supports this contention with Dr. Talens’ deposition testimony that he
had “no idea” what “on-site treatment” would include. As explained by Dr. Talens in
his deposition, his May 18, 2011, request for surgical consultation was one for a
second opinion, submitted after Chambers was seen at Wishard Hospital on April
12, 2011. The April 12, 2011, report indicated that no hernias were noted on
examination or on imaging. The surgical physicians, Dr. Gayed and Dr. Gomez,
indicated that if a hernia developed, Chambers should be re-evaluated by them at
that time. Otherwise, no follow-up was needed in the surgical clinic. Docket #72-6,
First, there is no evidence of record that Dr. Mitcheff reviewed a request for a
second opinion. The only record of a response to such a request, if it was submitted,
is the response to Chambers’ request for health care in which he asked if Dr. Talens’
request for a general surgery consult had been approved. A nurse signed the
response from the Health Care Staff, merely stating “on-site treatment.” These
circumstances do not amount to deliberate indifference on the part of Dr. Mitcheff.
Absent evidence that Dr. Mitcheff denied the request for a reason other than one
based on the exercise of his professional judgment, there is no genuine issue of
material fact on this issue. Moreover, even if the court were to infer that Dr.
Mitcheff did review and deny a request for a second surgical opinion, there was no
additional evidence in the record that would support a finding that in denying the
request Dr. Mitcheff ignored “a known risk” that Chambers had a hernia. The
initial consult indicated that Chambers should be re-evaluated “if a hernia
developed.” No diagnosis of a hernia was made between April 12, 2011, and May 18,
2011. These circumstances do not create a genuine issue of fact as to whether Dr.
Mitcheff was deliberately indifferent to Chambers’ serious medical needs, including
any need for surgery.
Chambers also makes much of an email that was produced inadvertently in
discovery. The email, dated March 31, 2011, was sent by Dr. Mitcheff to his
attorneys, stating that Chambers “just had another NORMAL CT SCAN. This guy
is like a woman walmart employee trying to cash in.” Chambers argues that this
email proves that Dr. Mitcheff was indifferent toward Chambers’ medical needs. Dr.
Mitcheff responds that the email merely confirms that he continued to monitor
Chambers’ condition and he had approved appropriate treatment and consultations
with outside providers, even though no testing had revealed the presence of a
hernia. Dr. Mitcheff describes his remark about Walmart as revealing his
frustration with a lawsuit brought against him for failure to treat a hernia when
there was no hernia. The report of normal test results and a flippant remark to
counsel is not sufficient evidence to support any inference of indifference on the part
of Dr. Mitcheff. Rather, his professional judgment was exercised in reviewing each
of the requests for outside consultations, and there is no evidence that Dr. Mitcheff
ignored a “known risk.”
Certainly it is reasonable for Chambers to feel frustrated with the fact that
the medical providers and numerous tests that were performed failed to determine
a diagnosis that explained his pain. Although the physicians were unable to
diagnose or cure Chambers’ pain, this does not by itself establish deliberate
indifference. When “a physician provides constitutionally acceptable care, his or her
inability to effect a final cure is not proof of deliberate indifference.” Glass v.
Rodriguez, 417 F.Supp.2d 943, 948 (N.D. Ill. 2006)(citing Snipes v. DeTella, 95 F.3d
586, 591 (7th Cir.1996)).
As to the claim against Dr. Talens, Chambers alleges that when Dr. Talens
submitted requests for approval for tests to help diagnose Chambers’ symptoms, Dr.
Talens misrepresented facts concerning his condition. Chambers alleges that this
contributed to the repeated denials for the tests. Chambers also alleges that Dr.
Talens insisted to Chambers that his symptoms did not exist. Chambers contends
that Dr. Talens’ actions show an actual intent to keep Chambers from knowing the
truth about his condition and from receiving medical treatment to relieve his pain
Dr. Talens treated Chambers for abdominal pain from May 8, 2008, through
February 9, 2009, and again from January 20, 2011, through May 18, 2011. During
the earlier segment of that time, Dr. Talens examined Chambers at least ten times.
Dr. Talens ordered an x-ray which revealed no obstructions or abnormalities. On
two occasions, Dr. Talens requested an air contrast barium enema. Dr. Talens
prescribed Colace (stool softener), Matamucil (laxative), and Milk of Magnesia. He
ordered fecal occult blood tests to determine whether there was blood in Chambers’
stool. From January 20, 2011, through May 18, 2011, Dr. Talens examined
Chambers at least four times. During that time, Dr. Talens ordered an x-ray, CT
scan, surgical consult, and a request for a second opinion.
Dr. Talens asserts that since May of 2008, Chambers received 50 physician
examinations, 90 nursing examinations, numerous blood stool tests, x-rays of his
abdomen, CT scans of his abdomen and pelvis, an air contrast barium enema, an
ultrasound, a colonoscopy, three separate admissions to the infirmary for
observation and monitoring, numerous consultations with outside providers, and
numerous medications. Dr. Talens argues that this abundance of care negates any
claim of deliberate indifference.
Chambers concedes that Dr. Talens did not completely ignore his medical
needs, but he contends that the treatment decisions made by Dr. Talens evidence a
substantial departure from professional judgment. Chambers asserts that none of
the treatment provided by Dr. Talens alleviated his pain. Chambers argues that Dr.
Talens continued to prescribe Metamucil, Milk of Magnesia, and Colace for
constipation at times when he knew it was ineffective and Chambers’ pain had
worsened. This, he argues, shows deliberate indifference.
Chambers is correct in his contention that the mere fact that prison medical
providers examined him numerous times and ran a number of diagnostic tests does
not, in and of itself, preclude a finding of deliberate indifference. It is also true,
however, as noted above, that the fact that the providers’ treatment failed to cure
Chambers’ condition does not prove the existence of deliberate indifference.
Whether Dr. Talens was deliberately indifferent to Chambers’ serious medical
needs turns on a closer examination of his responses to Chambers’ complaints.
None of the tests ordered by Dr. Talens revealed a hernia or any abnormal
findings. Dr. Talens did not record that he had ever found a hernia or other
abnormality on examination. Surgery was not recommended. Regardless of what
Dr. Talens believed with regard to Chambers’ symptoms, he responded to
Chambers’ complaints by prescribing medications and a number of diagnostic tools
in an effort to discover the cause of Chambers’ pain. Dr. Talens noted the fact that
Chambers had sought treatment for months/years and that the pain was getting
worse. Dr. Talens noted how Chambers’ pain increased when he walked. On
February 9, 2011, Dr. Talens noted his suspicion that the cause might be a
Spigelian hernia, but that, too, was ruled out upon further imaging. These are not
circumstances that give rise to an inference of deliberate indifference. Dr. Talens
did not ignore Chambers’ complaints. Each time Dr. Talens saw Chambers, he
responded with some type of prescription, recommendations, and/or requests for
additional diagnostic tests. “Mere medical malpractice or a disagreement with a
doctor’s medical judgment is not deliberate indifference.” Edwards v. Snyder, 478
F.3d 827, 831 (7th Cir. 2007).
Chambers argues that he was diagnosed as having a hernia but was never
provided meaningful treatment. Chambers points out that his medical expert, Dr.
Schultheis, opined on July 28, 2011, that Chambers had been diagnosed with a
femoral hernia. Dr. Schultheis had not examined Chambers, but after reviewing the
medical records, he stated that Chambers “was recently diagnosed with a femoral
hernia after a four year history of complaints and requests for medical treatment.”
Chambers also asserts that Dr. Stoller diagnosed a hernia on October 20, 2010, and
Dr. Talens diagnosed a hernia on January 20, 2011, and February 9, 2011. The
defendants contend that Dr. Talens never did diagnose a hernia. They also argue
that if Chambers truly did have a hernia, it would have been confirmed when he
was seen at Wishard Memorial Hospital on April 12, 2011, but the physicians there
found no hernia. Dr. Gayed, the treating physician at Wishard Memorial Hospital
was deposed for this case and stated that based on a CT scan and physical
examination, Chambers did not have an inguinal or femoral hernia on April 12,
2011. Dr. Schultheis’s statement in July of 2011 that Chambers had been “recently
diagnosed with a femoral hernia” is arguably not supported by the records that he
Moreover, whether Chambers had a hernia is not the dispositive point in this
case. The issue is whether the defendants were deliberately indifferent to
Chambers’ medical needs, not whether they properly diagnosed a particular
condition. Indeed, even if Chambers was misdiagnosed, Chambers might have
shown negligence, but under these circumstances, he has not shown that a genuine
issue of fact exists as to whether the defendants were deliberately indifferent to his
serious medical needs.
Chambers argues that the defendants deliberately ignored his pain and failed
to treat it. The record simply does not reflect that the defendants, or any other
prison medical staff, ignored Chambers’ pain. Chambers was admitted to the
infirmary for a week in 2009 where he could be closely monitored and given
additional medications for his symptoms. Chambers chose not to try antidepressant
medications for stress, as suggested by Dr. Rogan in 2009 and 2010. In June of
2010, Chambers declined pain medication. The other numerous examinations and
tests that were performed on Chambers have been discussed at length.
As a final point, Chambers’ medical expert Dr. Schultheis opined that the
failure to timely diagnose a femoral hernia and to surgically correct it fell below the
reasonable standard of care for a physician practicing medicine in the State of
Indiana from 2007 to the present. The defendants have submitted correspondence
between Dr. Schultheis and Chambers showing that Dr. Schultheis is also an
attorney and that he reviewed Chambers’ medical records in 2010 to determine the
viability of a medical malpractice claim. The defendants correctly point out that Dr.
Schultheis does not offer any opinion as to the defendants’ actions or omissions, and
at best, Dr. Schultheis has testified to a negligence standard, not deliberate
Chambers has not identified a genuine issue of material fact as to his claim
that Dr. Mitcheff and Dr. Talens were deliberately indifferent to his serious medical
needs. Accordingly, the motion for summary judgment filed by these defendants 
must be granted.
All claims have now been resolved against all defendants. Judgment
consistent with this Entry and with the Entry of July 26, 2011, dismissing the claim
against defendant Rose Vaisvilas, shall now issue.
IT IS SO ORDERED.
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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