Saddy v. Agnesian Health Care et al

Filing 188

ORDER signed by Judge J.P. Stadtmueller on 2/13/2017 DISMISSING Defendants Agnesian Health Care and Waupun Memorial Hospital from action and DENYING 166 Defendants' Motion for Summary Judgment. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID SADDY,
Plaintiff,

Case No. 13-CV-519-JPS

v.
AGNESIAN HEALTH CARE, DR.
THOMAS W. GROSSMAN, MARGARET
M. ANDERSON, and WAUPUN
MEMORIAL HOSPITAL,

ORDER

Defendants.

1.

INTRODUCTION
On January 9, 2017, the defendants Agnesian Healthcare (“Agnesian”),

Dr. Thomas W. Grossman (“Grossman”), Margaret M. Anderson
(“Anderson”), and Waupun Memorial Hospital (“Waupun”) (Grossman and
Anderson collectively referred to as “Defendants”) filed a motion for
summary judgment. (Docket #166).1 On January 25, 2017, the plaintiff David
Saddy (“Saddy”) submitted a response to the motion. (Docket #181). On
February 8, 2017, Defendants offered a reply in support of their motion.
(Docket #187). For the reasons explained below, the motion must be denied.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides the mechanism for seeking

summary judgment. Rule 56 states that the “court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A

1

A former defendant, Dr. Enrique Luy (“Luy”), was dismissed pursuant to
the parties’ stipulation thereto on January 19, 2017. (Docket #174).

“genuine” dispute of material fact is created when “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts
and reasonable inferences in a light most favorable to the non-movant. Bridge
v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). In assessing
the parties’ proposed facts, the Court must not weigh the evidence or
determine witness credibility; the Seventh Circuit instructs that
“we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d
688, 691 (7th Cir. 2010). Internal inconsistencies in a witness’s testimony
“create an issue of credibility as to which part of the testimony should be
given the greatest weight if credited at all.” Bank of Ill. v. Allied Signal Safety
Restraint Sys., 75 F.3d 1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex
Corp., 805 F.2d 949, 953 (11th Cir. 1986)). The non-movant “need not match
the movant witness for witness, nor persuade the court that [their] case is
convincing, [they] need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact.” Waldridge v.
Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
3.

RELEVANT FACTS
The Court will provide a brief timeline of events addressing each of

Defendants’ roles therein. In accordance with the standard of review, the
facts and inferences therefrom are construed in Saddy’s favor. The Court
limits its discussion to the facts necessary for disposing of the instant motion.
From January 2011 to January 2013, the bulk of the relevant time
period, Saddy was housed at Racine Correctional Institution (“Racine”). Prior
to 2012, he had an extensive history of knee problems. Before seeing
Grossman, Saddy had at least four knee surgeries. Grossman, an orthopedic
surgeon working at Waupun and employed by Agnesian, performed two
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knee surgeries on Saddy in July 2009 and December 2011, respectively. In a
note stemming from the 2011 surgery, Grossman stated that he expected
“residuals” from Saddy’s knee arthritis. Throughout this time, Saddy received
regular treatment to manage his knee pain.
The interactions relevant to this litigation began on May 2, 2012. On
that date, Saddy met with Grossman in his office. X-rays confirmed that
Saddy had degenerative changes in both knees. Grossman discussed various
treatment options with Saddy, including another surgery, use of a cane or
wheelchair, or narcotic pain medication. They agreed on the surgery option.2
The Wisconsin Department of Corrections (“DOC”), which had ultimate
custody of Saddy and control over his medical care, approved the surgery.
Grossman performed the surgery on July 30, 2012. The surgery was
completed without apparent complications. Afterwards, however, Saddy
began making complaints of pain and disfigurement in his knees.3
On September 4, 2012, Saddy went back to Grossman’s office for a
follow-up visit. Saddy was not seen by Grossman, but instead met with
Anderson, a nurse practitioner who assisted Grossman’s practice. X-rays
showed that the surgery appeared successful. Anderson collaborated with
Grossman to review the X-ray results and discuss Saddy’s pain medication,
but Grossman did not actually go in to see Saddy. In meeting with Anderson,
Saddy indicated that he was concerned about taking too much medication
2

The parties dispute how voluntary Saddy’s agreement was, but it is
immaterial to the disposition of this motion.
3

The parties dispute whether Saddy actually complained of disfigurement.
Saddy says that he mentioned it to the Racine medical staff and that some of the
nurses noticed that his knee was misaligned. Defendants counter that Luy,
Racine’s DOC physician, remembers no comments from Saddy about
disfigurement, and that the first note about the issue in Saddy’s medical record
came on October 9, 2012.

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because he was an addict, but that he could take Tylenol. Anderson discussed
the issue with Grossman, who prescribed Saddy the maximum allowable
dose of Tylenol.
Saddy also complained about his pain and disfigurement to Anderson.
He told her that he was in pain and felt “lousy.” (Docket #176 at
170:24-171:14). Saddy further reported that he knees ached. Anderson
examined them and found that Saddy did not have discomfort with knee
palpitation. He also mentioned that he was having trouble sleeping due to his
knee pain. Anderson did not include all of those complaints in her clinical
note

memorializing

the

appointment,

however.

Anderson’s

note

acknowledged Saddy’s ache and sleeping issues, but rather than relating
Saddy’s pain and “lousy” feeling, Anderson indicated that he “reports doing
well.” (Docket #170-11 at 2). Anderson’s note concluded by recommending
a follow-up visit in a year. Id. Though she acknowledged that Saddy’s knees
were swollen, Anderson avers that this was normal and denies discussing
knee disfigurement with Saddy at the appointment.
Saddy’s final relevant appointment was with Grossman on October 31,
2012. Saddy states that he complained of knee pain. Grossman did not
include this information in the office note for the visit, though Grossman
contends that Saddy had no visible displays of pain at the time. As to knee
disfigurement, X-rays were again taken. These, along with Grossman’s
in-person assessment, led him to conclude that Saddy’s gait was “off.”
Medically speaking, there was “a slight 5 degree difference in valgus
alignment between Mr. Saddy’s right knee and his left knee.” (Docket #170
at ¶ 26). Defendants assert that this “is not unexpected” and “can and does
occur in the absence of negligence,” but at his deposition, Grossman
conceded that “[t]here’s a wide range of variation in normal knee alignment,
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and I was unable to come up with literature consensus as to what was
normal.” Id. at ¶ 27; (Docket #179 at 84:14-18). It is not clear whether the
misalignment was present prior to the July 30 surgery.
Grossman and Saddy discussed Saddy’s ongoing pain treatment and
agreed on the use of an orthotic shoe apparatus. Saddy refused to see
Grossman or Anderson again after October 31, 2012. On December 14, 2012,
Saddy met with the orthotic provider. The representative noted “a
considerable amount [of] external rotation of the tibia associated with the
femur,” and that Saddy’s “toe angle is probably about a 20 degree angle.”
Saddy avers that since the July 30, 2012 surgery his pain has been greater than
ever before. Defendants counter that pain is normal after this type of surgery,
and that Saddy has presented no expert testimony to show that the origin of
the new, more severe pain was Grossman’s latest surgery. They stress that
Saddy has had chronic, degenerative knee conditions for years.
4.

ANALYSIS
Upon screening Saddy’s complaint, Magistrate Judge Aaron E.

Goodstein allowed him to proceed on four claims: 1) deliberate indifference
to his serious medical needs, namely for delaying his medical care resulting
in untreated pain following the surgery, in violation of the Eighth
Amendment, against Grossman and Anderson, 2) failure to appropriately
train Grossman and Anderson, a Monell theory, against Agnesian and
Waupun, 3) medical malpractice against Grossman, and 4) fraud against
Grossman and Anderson. (Docket #8 at 7). On December 28, 2016, the parties
stipulated to dismissal of all but the first claim. (Docket #165). Thus,
Agnesian and Waupun no longer have any claims pending against them and
must be dismissed regardless of the Court’s disposition of the instant motion.

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Defendants seek summary judgment on Saddy’s sole remaining claim
for their alleged deliberate indifference to his untreated post-surgical pain.
(Docket #172). To state a claim for a violation of constitutional rights
pursuant to 42 U.S.C. § 1983, a plaintiff must prove that: 1) he was deprived
of a right secured by the Constitution or laws of the United States; and 2) the
deprivation was visited upon him by a person or persons acting under color
of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). For purposes of this
motion, Defendants do not dispute that they acted under the color of state
law.4 They do, however, argue that they did not violate Saddy’s Eighth
Amendment right to be free from “deliberately indifferent” medical care.
The Gayton court outlined the law of a “deliberate indifference” claim:
[T]he plaintiff must show that: (1) [he] had an
objectively serious medical condition; (2) the defendants knew
of the condition and were deliberately indifferent to treating
[him]; and (3) this indifference caused [him] some injury. An
objectively serious medical condition is one that has been
diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would perceive the need
for a doctor's attention. A medical condition need not be
life-threatening to be serious; rather, it could be a condition
that would result in further significant injury or unnecessary
and wanton infliction of pain if not treated.
With regard to the deliberate indifference prong, the
plaintiff must show that the official acted with the requisite
culpable state of mind. This inquiry has two components. The
official must have subjective knowledge of the risk to the
inmate’s health, and the official also must disregard that risk.

4

Agnesian, Grossman and Anderson’s employer, provided healthcare
services to DOC inmates pursuant to contract. (Docket #172 at 10 n.2). Defendants
concede that this subjects them to Section 1983 liability even though they are not
governmental employees. See de Vryer v. Maryville Academy, 544 F. App’x 653, 654
(7th Cir. 2013).

Page 6 of 14

Evidence that the official acted negligently is insufficient to
prove deliberate indifference. Rather, “deliberate indifference”
is simply a synonym for intentional or reckless conduct, and
that “reckless” describes conduct so dangerous that the
deliberate nature of the defendant’s actions can be inferred.
Simply put, an official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference. Even if a
defendant recognizes the substantial risk, he is free from
liability if he responded reasonably to the risk, even if the harm
ultimately was not averted.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (citations and quotations
omitted). As Defendants do not contest the first element, the Court turns its
attention to the second.5
The heart of this case is whether Defendants exhibited deliberate
indifference to Saddy’s medical needs. It is important to discern the precise
contours of Saddy’s claims. They went from all of those identified at the
screening stage to the two narrow issues identified in his response brief.
Those are first that “Nurse Anderson knew of Mr. Saddy’s pain and
disfigurement and deliberately misrepresented both in her [clinical] note”
from the September 4, 2012 visit. (Docket #181 at 15). Her note, then, “lead[]
to at least a two month delay before the pain and disfigurement was finally
recognized by Dr. Grossman and remedial measures were offered.” Id. at 11.

5

Defendants do not argue that Saddy’s complained-of condition, pain
resulting from Defendants’ allegedly substandard care following his double knee
replacement, is not sufficiently serious. See (Docket #172 at 10-21 and #187). Saddy,
nevertheless, argues the point. (Docket #181 at 12-14). Without opposition from
Defendants, the Court must conclude that a triable issue of fact exists as to whether
Saddy’s condition was serious. Gutierrez v. Peters, 111 F.3d 1364, (7th Cir. 1997)
(finding that while not “every ache and pain or medically recognized condition
involving some discomfort can support an Eighth Amendment claim,” this Circuit
and others “have repeatedly recognized that delays in treating painful medical
conditions that are not life-threatening can support Eighth Amendment claims”).

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Second, as to Grossman, he knew he should have seen Saddy himself at the
September 4 appointment, but by delegating the responsibility to Anderson,
he contributed to delaying the pain diagnosis he would make two months
later. Id. at 16-17. His mere “colloboration” with Anderson at that time was,
in Saddy’s view, insufficient to discharge his professional clinical obligations.
Id.
As noted by Judge Goodstein, a deliberate indifference claim may be
advanced for delaying medical treatment to an inmate. (Docket #8 at 6);
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). This is “especially where
the result is prolonged and unnecessary pain.” Berry v. Peterman, 604 F.3d 435,
441 (7th Cir. 2010). Further, “a non-trivial delay in treating serious pain can
be actionable even without expert medical testimony showing that the delay
aggravated the underlying condition.” Id. When viewing the facts most
favorably to Saddy, a reasonable jury could infer that he suffered a painful
two-month delay in receiving appropriate treatment due to Defendants’
actions or inactions. Defendants do not argue that Saddy’s pain was
imaginary or that the two-month delay was less than what is constitutionally
actionable. See McGowan, 612 F.3d at 640 (“[T]he length of delay that is
tolerable depends on the seriousness of the condition and the ease of
providing treatment.”). Instead, they attack various other potential factual
and legal infirmities with Saddy’s claims. The Court address each in turn.
As a preliminary matter, the Court must ignore Defendants’ references
to the report of their expert witness, Dr. Steven J. Merkow (“Merkow”),
dated February 3, 2016. See (Docket #180-1). Defendants may not marshal
arguments and evidence for the first time in their reply when they were
available and relevant to the issues in their opening brief. Kenall Mfg. Co. v.
H.E. Williams, Inc., No. 09-C-1284, 2012 WL 4434370 at *3 (N.D. Ill. Sept. 24,
Page 8 of 14

2012) (“[A]rguments and evidence that could have been raised in the opening
brief but are first raised in a reply brief are generally deemed waived.”)
(citing Judge v. Quinn, 612 F.3d 537, 542 (7th Cir. 2010)). Merkow and his
opinions were not part of the original brief or statement of facts. See (Docket
#171 and #172). Defendants’ first reference to Merkow is in their reply, and
the reply cites his opinions extensively to show that their actions comported
with accepted standards of medical practice. (Docket #187 at 8-19). As they
readily admit, Defendants knew as of December 15, 2016 that Saddy had no
expert opinions to offer in this case. Id. at 8. Thus, their own briefs show that
Merkow’s opinions were available and relevant to their arguments by January
9, 2017, the date their first brief was filed.
Defendants stress that if Saddy cannot show medical negligence via
expert opinion, his deliberate indifference claim must fail. Id. at 9-11. While
this is true in certain instances, the Seventh Circuit’s reading of the
constitutional cause of action is broader than that, making it provable by
many other means beyond pure expert opinion. See Petties v. Carter, 836 F.3d
722, 728-731 (7th Cir. 2016). Saddy’s claim falls within the latter categories.
Namely, defendants do not, and cannot, argue that it would be appropriate
for a minimally competent professional to lie in a clinical note about a
patient’s symptoms, or to refuse to see the patient, knowing that those
actions risked permitting severe, continuing pain. See Arnett v. Webster, 658
F.3d 742, 751 (7th Cir. 2011) (“A prisoner, however, need not prove that the
[medical personnel] intended, hoped for, or desired the harm that transpired.
Nor does a prisoner need to show that he was literally ignored. That the
prisoner received some treatment does not foreclose his deliberate
indifference claim if the treatment received was so blatantly inappropriate as
to evidence intentional mistreatment likely to seriously aggravate his
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condition.” (citations and quotations omitted)). Still, to the extent Saddy
continues to complain about Defendants’ treatment outside of the issues
identified above, those complaints are defeated by his inability to secure
favorable expert testimony. Id. at 759 (“Without some evidence, such as
expert opinion testimony, creating a reasonable inference that Dr. Webster’s
treatment during this time frame was so inadequate that it demonstrated an
absence of professional judgment, Arnett cannot succeed against him on
summary judgment.”).6
Beyond Merkow’s opinions, Anderson raises two additional
arguments. First, she contends that because Saddy voluntarily dismissed his
fraud claim against her, he cannot now pursue the same theory under the
aegis of deliberate indifference. Anderson believes that any misrepresentation
in her note was mere negligence, far short of the recklessness required to
establish deliberate indifference. The Court cannot agree. Saddy voluntarily
dismissed his fraud claim; it was not struck down by this Court on its merits.
Without any authority suggesting that dismissal of the fraud claim eliminates
a related deliberate indifference theory—Defendants cite none—the Court
will not hold that Saddy’s constitutional claim is foreclosed. Further,
Anderson’s alleged conduct fits within the literal definition of deliberate
indifference: Saddy told her he was in pain and his knee was misaligned, but
in her indifference to his plight, she deliberately misrepresented those facts
in her note and recommended a follow-up visit far in the future.

6

These include, for instance, Saddy’s contentions that Grossman pushed
him into accepting surgery and whether Saddy’s “slight 5 degree difference in
valgus alignment” was within acceptable limits for his surgery (or, indeed,
whether that was even caused by the surgery).

Page 10 of 14

Second, Anderson asserts that her note could not have delayed
Saddy’s pain treatment because, in his own words, his pain and
disfigurement were obvious. Once Saddy returned to the institution, the
Racine medical staff were in a position to address his repeated complaints,
and their failure to do so satisfactorily cannot be laid at Anderson’s feet. The
facts presented do not go this far, however. Defendants offered no statement
of fact on the point for Saddy to dispute (or not). They have also presented
no evidence at this juncture which would confirm that Anderson’s note had
no effect on the DOC medical personnel. See (Docket #183 at ¶¶ 23-24).7
Without an undisputed fact or other evidence, the Court must leave the
causation question to the jury. Gayton, 593 F.3d at 624 (“Proximate cause is
a question to be decided by a jury, and only in the rare instance that a
plaintiff can proffer no evidence that a delay in medical treatment
exacerbated an injury should summary judgment be granted on the issue of
causation.”).8
Grossman also advances two arguments in favor of summary
judgment. First, he states that it was “happenstance” that Saddy met with
Anderson on September 4, 2012. (Docket #187 at 14). To the extent he could

7

Defendants present voluminous statements of fact and evidence
attempting to show that they lacked the ability or authority to affect the treatment
Saddy received from DOC medical personnel. (Docket #183 at ¶¶ 32-40, 65-93).
None bear on the issue at hand, namely whether the DOC personnel read
Anderson’s note and relied on that in determining that Saddy needed no further
pain treatment.
8

At this stage, Saddy does not bear the burden to prove his claims; it is
instead Defendants’ burden to show that they cannot be proven on the indisputable
facts. Boss, 816 F.3d at 916. Defendants’ failure to offer appropriate statements of
facts or related evidence does not mean that none exists, however. The Court
leaves it to the parties to evaluate that evidence, if any, and discuss how that bears
on the impending trial of this matter.

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be blamed for not handling the appointment, Grossman argues that a nurse
practitioner like Anderson is perfectly competent to handle a post-surgery
follow-up appointment. See Wis. Admin. Code § N 8.10. He further contends,
as Saddy generally concedes, that inmates are not entitled to their choice of
medical providers. See (Docket #181 at 17 n.2).
As with Anderson, however, the Court is left wanting for undisputed
facts. Defendants repeatedly refer to Anderson’s interaction with Grossman
during the September 4 appointment as a “collaboration.” (Docket #183 at ¶¶
22, 51, 56; Docket #172 at 3). What this collaboration entailed is not entirely
clear: was Grossman also present in the office? Was he consulted via
telephone? The Court remains uninformed. Defendants state that it at least
covered “Mr. Saddy’s x-ray results, and . . . his refusal to accept certain pain
medications for expected post-surgery pain.” (Docket #183 at ¶ 56). Under
Saddy’s view of the facts, one can reasonably infer that Anderson told
Grossman about the full extent of Saddy’s pain and disfigurement
complaints, and that Grossman explicitly or implicitly agreed to withhold
them from the office note.
Another reasonable inference would be that, hearing of Saddy’s
concerns, Grossman should have gone to see him directly. That would have
eliminated Saddy’s instant claims because, as shown by his clinical evaluation
and treatment plan from the October 31 appointment, Grossman would have
recognized the misalignment in Saddy’s knees and addressed it at that time.
Finally, it is not clear how it came about that Anderson handled the
appointment. In light of his post-operative statement that he should have
seen Saddy, Grossman’s decision to delegate the task would lend weight to
the conclusion that he was personally responsible for the delay to the same
extent as Anderson.
Page 12 of 14

Second, Grossman argues that he was not responsible for setting the
October 31, 2012 appointment. That was instead the responsibility of the
DOC medical staff, and their failure to set the appointment sooner is no fault
of Grossman’s. As discussed above, Defendants cannot shift blame to the
DOC without offering undisputed evidence that Anderson’s clinical note had
no effect on their decision-making.
In sum, viewing the facts in a light most favorable to Saddy, they
support a jury finding that Anderson misrepresented Saddy’s complaints in
her clinical note. They further support a finding that Grossman knew he
should have seen Saddy on September 4 but did not and that his limited
“consultation” with Anderson that day was inadequate to address Saddy’s
pain. These findings can support an inference that Grossman and Anderson
engaged in this conduct with at least a reckless disregard of the risk of
continuing pain for Saddy. Saddy has raised more than a mere scintilla of
evidence on these issues and it is the jury’s province to determine whether,
in absence of the favorable standard of review applied here, he has proven
them. See Petties, 836 F.3d at 731 (“[W]here evidence exists that the
defendants knew better than to make the medical decisions that they did, a
jury should decide whether or not the defendants were actually ignorant to
risk of the harm that they caused.”); Harris N.A. v. Hershey, 711 F.3d 794, 798
(7th Cir. 2013); Gayton, 593 F.3d at 620 (“Whether a medical condition is
‘serious’ and whether a defendant was ‘deliberately indifferent’ to it are fact
questions, to be resolved by a jury if a plaintiff provides enough evidence to
survive summary judgment.”). The Court offers no comment on the strength
of Saddy’s case or his prospects of a successful result at trial, but it finds that
there are disputed issues of material fact precluding judgment in Defendants’
favor at this juncture.
Page 13 of 14

5.

CONCLUSION
In light of the foregoing, the Court must dismiss Agnesian and

Waupun and deny summary judgment to Grossman and Anderson. This
matter remains set for a pretrial conference on March 14, 2017, and a jury trial
beginning on March 20, 2017.
Accordingly,
IT IS ORDERED that the defendants Agnesian Health Care and
Waupun Memorial Hospital be and the same are hereby DISMISSED from
this action; and
IT IS FURTHER ORDERED that the defendants’ motion for
summary judgment (Docket #166) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 13th day of February, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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