Currin v. Miloslavic

Filing 43

ORDER signed by Judge J P Stadtmueller on 1/17/2020: GRANTING 25 Defendant's Motion for Summary Judgment and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Stephanie Shynette Currin at Milwaukee Women's Correctional Center) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STEPHANIE SHYNETTE CURRIN,
Plaintiff,
v.

Case No. 18-CV-577-JPS

DR. MISO MILOSLAVIC,

ORDER

Defendant.
Plaintiff, a Wisconsin prisoner, was formerly incarcerated at the
Robert E. Ellsworth Correctional Center (“RECC”), where Defendant Miso
Miloslavic worked as a physician. Plaintiff claims that Defendant’s care for
her chronic knee pain was so deficient as to violate her constitutional right
to adequate medical care. Plaintiff was allowed to proceed on a claim that
Defendant violated her rights under the Eighth Amendment. (Docket #8).
Defendant has filed a motion for summary judgment, (Docket #25), and that
motion is fully briefed, (Response, Docket #34; Reply, Docket #39).
According to Defendant, the material facts are as follows. See
Defendant’s Proposed Findings of Fact, (Docket #27). Plaintiff injured her
knee while she was incarcerated at Taycheedah Correctional Institution
(“TCI”). In the years she spent at TCI after the injury, Plaintiff received
treatment for her knee pain in the form of anti-inflammatory medication,
physical therapy, and a steroid injection. When she arrived at RECC in
March 2017, Plaintiff complained to a nurse that her pain was not abated by
the prior treatments at TCI. Plaintiff said she felt her injury was a meniscus
tear. The nurse scheduled Plaintiff for an appointment with Defendant that
same month. Plaintiff was also provided a knee brace.

At that first appointment, Defendant diagnosed Plaintiff with
tendonitis, not a meniscus tear. He ordered the standard plan of care for
that injury, which was a continuation of physical therapy, a topical muscle
rub cream, and anti-inflammatories. Plaintiff saw Defendant again in May,
and began her physical therapy in June. The therapy was discontinued just
two months later because Plaintiff failed to show for two consecutive
appointments.
In September, Plaintiff complained that her knee was buckling.
Defendant ordered an MRI to determine if the treatment plan was adequate
to address Plaintiff’s injury. In December, prior to the MRI, Plaintiff met
with a nurse and asked for knee surgery. The nurse tested Plaintiff’s
mobility and determined that surgery was not immediately necessary, and
instead referred Plaintiff back to Defendant’s care.
The MRI was conducted in February 2018. It showed that Plaintiff
had a condition called runner’s knee, wherein the cartilage deteriorates due
to overuse. The MRI confirmed that Plaintiff did not have a meniscus tear.
The standard plan of care for runner’s knee was precisely what Defendant
had already ordered for Plaintiff.
In March, Plaintiff had another appointment with Defendant, and
again requested surgery. Defendant did not agree that surgery was
necessary. He instead altered Plaintiff’s medication slightly, ordered a
second steroid injection, and ordered Plaintiff to be seen by a specialist.
Plaintiff also complained of plantar fasciitis, i.e., pain and inflammation in
the foot, which would be treated by the same course of treatment already
prescribed for her knee. In addition, Defendant ordered shoe inserts and
occupational therapy for Plaintiff’s foot pain. Plaintiff saw a nurse again

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later that month, complaining of knee and foot pain, but the nurse saw
nothing which warranted changing Defendant’s treatment plan.
Plaintiff then saw Benjamin Lasee (“Lasee”), an orthopedic
specialist, in April. Lasee evaluated Plaintiff and reached the same
conclusion as Defendant—that Plaintiff had runner’s knee. Lasee felt that a
conservative course of treatment, including anti-inflammatories, steroid
injections, and physical therapy, was most appropriate. This matched
Defendant’s opinion.
Plaintiff saw Defendant again in May. His examination did not
reveal any issues that were not already accounted for. He ordered some
additional treatment for Plaintiff’s foot pain and an x-ray, which showed
nothing out of the ordinary. Plaintiff did additional physical therapy for
about a month between May and June.
Plaintiff largely agrees with this view of the facts. See Plaintiff’s
Response to Defendant’s Proposed Findings of Fact, (Docket #35). She offers
only minor quibbles with various issues with her treatment and the topics
discussed in her medical appointments. Id. Instead, the thrust of her
argument is legal. Specifically, Plaintiff asserts that Defendant’s
conservative treatment plan was the same that she received at TCI, and that
throughout her time at both institutions, her knee condition became
progressively worse and her pain did not lessen. Plaintiff contends that
Defendant knew the treatment plan was not effective but continued it
anyway. Plaintiff also claims that her plantar fasciitis was caused by the
need to compensate for her knee injury. Finally, Plaintiff states that
Defendant delayed sending her to a specialist.
To prove her right to relief under the Eighth Amendment, Plaintiff
must show that Defendant was deliberately indifferent to her serious
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medical needs. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). Deliberate
indifference equates to intentional or reckless conduct, not mere negligence.
Id. It occurs only when a defendant realizes that a substantial risk of serious
harm to the prisoner exists, and then disregards that risk. Id.
“Neither medical malpractice nor mere disagreement with a doctor’s
medical judgment is enough to prove deliberate indifference.” Id. at 441.
Further, “[a] medical professional is entitled to deference in treatment
decisions unless no minimally competent professional would have so
responded under those circumstances.” Sain v. Wood, 512 F.3d 886, 894–95
(7th Cir. 2008) (quotation omitted). Rather, a medical professional is
deliberately indifferent only when his decisions are “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.” Id. at 895 (quotation omitted).
The facts of this case can lead to no other conclusion than that
Defendant exercised his careful medical judgment in evaluating Plaintiff
and forming a treatment plan for her injuries. He followed the standard
plans of care for Plaintiff’s injuries and adapted them as he felt was
appropriate in light of her continuing complaints. Far from disregarding
any risk to Plaintiff’s health, Defendant provided Plaintiff with considered
and ongoing treatment. That Plaintiff wanted more or different treatment
is no evidence that Defendant’s care was so woefully inadequate as to
violate her constitutional rights. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.
2014) (“Disagreement between a prisoner and his doctor, or even between
two medical professionals, about the proper course of treatment generally
is insufficient, by itself, to establish an Eighth Amendment violation.”).

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Moreover, Plaintiff is not a doctor herself and has marshalled no
competent evidence to undermine Defendant’s medical judgment as to the
appropriate course of her treatment. Indeed, the only other medical expert
involved in this case, Lasee, agreed with Defendant’s diagnosis and his
conservative treatment plan. Plaintiff’s “mere disagreement with
[Defendant’s] medical judgment” is not enough to raise a triable issue of
fact on a claim of deliberate indifference. Berry, 604 F.3d at 441. In other
words, Plaintiff has failed to adduce evidence that Defendant’s treatment
plan was so poor that his decision to adopt it was not motivated by his
medical judgment at all. Sain, 512 F.3d at 895.
In light of the foregoing, the Court will grant Defendant’s motion for
summary judgment and dismiss this action with prejudice.
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment
(Docket #25) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 17th day of January, 2020.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

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