Johnson, Haji v. Hannula, Joan et al
ORDER granting defendants' 70 Motion for Summary Judgment. The clerk of court is directed to enter judgment for defendants and close this case. Signed by District Judge William M. Conley on 2/9/2016. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION and ORDER
DR. JOAN HANNULA, et al.,
State inmate Haji Johnson, now represented pro bono by recruited counsel, is
proceeding on Eighth Amendment claims against:
(1) defendants Joan Hannula and
Judith Bentley, a doctor and nurse at Stanley Correctional Institution, for failing to
diagnose his ulcerative colitis from August 2008 to February 2011; and (2) defendants
Tammy Maassen and Diane Huber, a medical program assistant and manager of the
health services unit at Jackson Correctional Institution, for failing to schedule Johnson
for medical appointments.1
Defendants have filed a motion for summary judgment
under Fed. R. Civ. P. 56 (dkt. #70), which will now be granted for the reasons set forth
Plaintiff originally claimed that several other defendants were deliberately indifferent to his
medical needs, but voluntarily dismissed his claims against all defendants but Hannula, Bentley,
Maassen and Huber. (See dkts. #64, 47, 69, 81). Plaintiff also originally claimed that postdiagnosis, Hannula and Bentley were deliberately indifferent to his ulcerative colitis, but plaintiff
abandoned that claim in his brief in response to defendants’ motion for summary judgment.
(Pl.’s Br. (dkt. #82) at 3, n. 1). Accordingly, while defendants are entitled to summary judgment
on that claim, the court will not discuss it further in this Opinion.
Plaintiff Haji Johnson is an inmate in the custody of the Wisconsin Department
of Corrections and currently housed at the Jackson Correctional Institution (“JCI”),
where defendant Diane Huber is a medical program assistant associate and defendant
Tammy Maassen is a registered nurse and manager of the health services unit. Johnson
was formerly housed at the Stanley Correctional Institution (“SCI”), where defendant
Joan Hannula works as a physician and defendant Judith Bentley works as a registered
Ulcerative Colitis and Gastrointestinal Disorders.
Ulcerative colitis is a chronic inflammatory bowel disease characterized by
inflammation and ulcerations of the mucosal lining of the large intestine, with cycles of
remission and relapse. Symptoms of ulcerative colitis include pain and cramping in the
abdomen; gurgling or splashing sounds heard over the intestine; blood and pus in stools,
often multiple times a day; fever; feeling a need to pass stools, even though the bowels
are empty; and weight loss.
Constipation is not a common symptom of ulcerative
Unless otherwise noted, the court finds the following facts material and undisputed. The facts
are drawn from the parties’ proposed findings of fact, as well as the underlying evidentiary
support submitted by both sides.
In response to Dr. Hannula’s medical opinion to the contrary, plaintiff attempts to dispute
whether constipation is a symptom of ulcerative colitis, but as defendants correctly point out, the
only “evidence” plaintiff cites in support is inadmissible hearsay. Although plaintiff has retained
a medical expert, Dr. Richard Clarke, plaintiff does not rely on Clarke for the symptoms of
ulcerative colitis. Indeed, nowhere in Clarke’s report does Clarke identify the symptoms of
Crohn’s disease is another inflammatory bowel disease with similar symptoms,
including abnormal bowel movements often associated with blood, abdominal pain,
bloating, weight loss and decreased appetite. An official diagnosis of ulcerative colitis or
Crohn’s disease requires a colonoscopy and a biopsy of microscopic samples from the
intestine, though lab tests can indicate a possible diagnosis of ulcerative colitis or
Crohn’s, as patients with either disease often have anemia, as well as elevation of
Irritable bowel syndrome is associated with abdominal pain, gas and alternating
constipation and diarrhea, and sometimes mucous in stools.
It is not an inflammatory
bowel disease and is not usually associated with bloody stools. Irritable bowel syndrome
is diagnosed based on a patient’s symptoms and not a particular test.
Hemorrhoids are a common condition caused by inflamed veins in the rectum and
anus. Hemorrhoids may cause bloody stools and are often found in conjunction with
constipation. Hemorrhoids may bleed on and off for many years. External hemorrhoids
are diagnosed with visual inspection and internal hemorrhoids with an anoscopy.
ulcerative colitis, irritable bowel syndrome or any other gastrointestinal disease, much less list
constipation among them. Instead, plaintiff points to a handout he received from Hannula about
ulcerative colitis at an appointment after his diagnosis. The handout was apparently printed from
a website named “www.uptodate.com” and authored by an individual named Mark Peppercorn.
According to the handout, symptoms of mild ulcerative colitis may include bouts of constipation.
(Dkt. #85-2.) As defendants correctly point out, however, the printout is inadmissible hearsay
offered for the truth of the matter asserted. Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490
(7th Cir. 2007) (“The evidence relied upon in defending a motion for summary judgment must be
competent evidence of a type otherwise admissible at trial.”).
Plaintiff’s Care Before 2008.4
In March 2005, Johnson was seen for multiple medical complaints, including
diarrhea and bloating. In April 2005, he was tested for occult (hidden) blood in his stool.
These tests were positive, confirming Johnson had GI bleeding. On April 8, 2005, a
medical provider also performed a rectal exam and noted that plaintiff had internal
hemorrhoids. (Dkt. #73-1 at 5.) Johnson was further tested for h. pylori during this
time frame, but the test was negative.
In August 2006, Johnson complained about diarrhea, but then reported during a
subsequent appointment that it was resolved. (Id. at 6.) In March 2007, Johnson sent a
health service request stating that he was having the same type of GI concerns that he’d
had in 2005. At that time, he was given treatment for constipation. (Id.) In August
2007, Johnson again tested positive for occult GI blooding and a barium enema x-ray was
ordered.5 The latter x-ray results did not show anything abnormal.
In his expert report, plaintiff’s medical expert, Dr. Clarke, includes a detailed account of
plaintiff’s care from 2005 through 2007, as well as opinions regarding deficiencies in care during
that time period. Clarke’s analysis of this time period is largely irrelevant, however, because
defendants were not involved with plaintiff’s care during that period and Clarke points to nothing
in plaintiff’s medical condition during that period to which defendants were deliberately
indifferent. The court has nevertheless included a brief overview of treatment during this time
period to provide context for defendants’ subsequent decisions regarding plaintiff’s care.
A barium enema is an x-ray exam that can detect changes or abnormalities in the large intestine,
including the colon and rectum. A barium enema would not detect irritable bowel syndrome or
hemorrhoids, but may detect diverticulosis, polyps, colon cancers, and inflammatory bowel
disease, such as ulcerative colitis or Crohn’s disease. The barium enema test is used much less
often than in the past. Colonoscopy is done more often now. (See Hannula Dep. (dkt. #95) 4145; https://www.nlm.nih.gov/medlineplus/ency/article/003817.htm (last visited Feb. 2, 2016).)
Plaintiff’s Treatment for GI Symptoms While at SCI.
Plaintiff was transferred to SCI sometime before February 2008. Dr. Hannula was
Johnson’s assigned treating physician from February 2008 to January 2014. In addition
to seeing Hannula, Johnson also saw nursing staff at various times. In March and June
2008, Johnson saw a nurse for complaints of constipation.
At the June 2008
appointment, he also mentioned that he had a family history of colon cancer and wanted
The nurse scheduled an appointment with Hannula so that Johnson
could discuss his request with her.
Johnson saw Hannula for the first time on August 1, 2008. At the appointment,
Johnson discussed his family history of colon cancer. Hannula noted that Johnson had a
2-3 year history of alternating loose stools, constipation and gas. She also noted that he
had a previous normal result from a barium enema in 2007. Johnson reported that he
currently had a good appetite, no weight loss and no current abdominal pain. Johnson
did not complain of current rectal bleeding.
Upon examination, Johnson presented with a non-tender abdomen and normal
bowel sounds. Hannula did not perform a rectal exam on Johnson because she did not
believe it was necessary or appropriate, given his age (31 years old) and lack of
complaints about current rectal bleeding.
She also did not think a colonoscopy or
additional occult blood testing were necessary given Johnson’s age and lack of complaints
about current bleeding. Because symptoms of constipation alternating with loose stools
are common signs of irritable bowel syndrome, Hannula further opined that Johnson
possibly had irritable bowel syndrome. She did not think Johnson’s symptoms indicated
ulcerative colitis, particularly because (1) he was reporting constipation; (2) he had a
normal appetite and weight; (3) his symptoms had remained stable for the past two
years; and (4) the barium enema from the previous year had not suggested ulcerative
Hannula ordered Metamucil for plaintiff’s constipation and directed him to
schedule a follow-up appointment in two months.
On October 13, 2008, Johnson saw Nurse Bentley for a follow-up appointment.
This was the first time Johnson was treated by Bentley. Johnson told Bentley he was
taking Metamucil in the morning and having a daily bowel movement, but that it was
small and hard.
He further reported no abdominal discomfort and a good appetite.
Based on her evaluation at that time, Bentley assessed Johnson as having probable
irritable bowel syndrome. She ordered him to take Docusate tablets once a day to soften
his stool and told him to schedule another follow-up appointment in two months.
On December 12, 2008, Nurse Bentley again assessed Johnson during a follow-up
appointment. Johnson reported having no real desire to have a bowel movement, and
Bentley once again concluded that Johnson probably had irritable bowel syndrome. She
changed his order from Docusate to Senna for constipation, the latter of which
encourages evacuation of the stool. On December 27, 2008, Johnson saw a nurse for
complaints of abdominal pain and continued constipation. He told the nurse he wished
to discontinue Senna because it was not helping.
On January 23, 2009, Johnson saw another nurse for complaints of his stomach
“bubbling all the time,” bowel movements mixed with mucous and blood, frequent
constipation and occasional diarrhea. He also reported a good appetite and fluid intake.
Johnson requested Docusate for his constipation.
The nurse scheduled a follow-up
appointment with the nurse practitioner for February 5, 2009, but Johnson did not show
up for it.6
On March 4, 2009, Johnson was scheduled for another appointment with Bentley
based on a health service request he submitted on February 13, 2009, concerning blood
in his stools. Johnson appeared anxious to Bentley at the March 4, 2009 appointment.
In particular, he mentioned having some of the symptoms described in the written
material he received about irritable bowel syndrome, but also had additional symptoms of
bloody/orange stools. He reported oftentimes not having a complete bowel movement,
which made him feel full all day. Johnson mentioned using Metamucil, which gave him
some relief from constipation, and that he was no longer having episodes of diarrhea.
Johnson also reminded Bentley that he had had symptoms for three years and that he felt
ignored when submitting health service requests.
After Bentley took Johnson’s vitals and reviewed his chart, she noted that two
different providers had found probable irritable bowel syndrome, but that Johnson did
not believe the diagnosis and did not want treatment for irritable bowel syndrome.
Indeed, he did not want to try anything, other than Metamucil and more testing.
Bentley told Johnson that he could increase his Metamucil to two or three times a day to
possibly improve constipation. She also ordered an occult stool test to check for blood
The record does not disclose why Johnson missed this appointment.
and discussed Johnson’s symptoms with him, advising Johnson at the time that his
symptoms were not suggestive of him having pathology (i.e., a particular disease),
especially with him maintaining his weight and having a good appetite.
nevertheless scheduled a follow-up appointment with Dr. Hannula.
On April 1, 2009, Johnson was scheduled for a follow-up appointment with
Hannula, but did not show up.7 On April 24, Johnson was seen by Hannula for this rescheduled appointment. Hannula had received the results from the occult stool test,
showing that Johnson had blood in his stool. At the appointment, Johnson reported
having some bright red blood in his stools in the recent past, but that it had resolved and
he was not experiencing any other symptoms that day. He also reported having formed
stools and a normal appetite.
On April 24, 2009, Hannula concluded that the blood in Johnson’s stool was
likely related to a hemorrhoid, given that: (1) he was not currently bleeding; (2) he had
been previously diagnosed with hemorrhoids by rectal exam in 2005; and (3)
hemorrhoids can bleed on and off for many years. Hannula also concluded that because
Johnson’s symptoms were similar to those he’d had for the past few years, he still likely
had irritable bowel syndrome. She also noted that because Johnson reported feeling well,
health services would follow up with him upon request.
On June 8, 2009, Johnson was seen by Hannula for an appointment after he
submitted a health service request complaining of gas. Johnson reported that he felt well,
had a good appetite, no cramping and normal bowel movements, but that he had a lot of
Again, there is nothing to suggest this “no show” was defendant’s fault.
gas. Hannula provided Johnson with anti-gas medications. She noted a diagnosis of
probable irritable bowel syndrome and told Johnson to contact health services for a
follow-up as needed.
On October 28, 2009, Johnson was scheduled for an appointment with Bentley
per his request because he wanted to discuss adding a diet tray for high fiber. Johnson
reported that he was using Citrucel (for constipation), having a bowel movement daily
and that his stools were formed. Bentley told him that all meals/diets already have 30g of
fiber, but that he could use Citrucel twice a day if he found himself constipated. Once
again, Bentley assessed Johnson as having probable irritable bowel syndrome that was
controlled, and she did not find it necessary for further follow-up because he was not
reporting worsening symptoms or pain.
On December 9, 2009, Johnson had a visit with a nurse for complaints of
diarrhea, bloating and gas.
Johnson did not submit a request complaining of GI issues for another year. On
December 3, 2010, however, he submitting a request complaining of abdominal pain and
bleeding. He saw a nurse for those complaints on December 4, but refused a rectal exam
to check for hemorrhoids and refused any treatment.
He was scheduled for an
appointment with a doctor or nurse practitioner on December 16, but missed the
He then had appointments with nurses on December 24 and 27,
complaining of diarrhea, abdominal pain, and rectal urgency. After these appointments,
tests were ordered of his blood and stool. On December 31, the lab reported a positive
test for occult blood in Johnson’s stool but normal results for the blood work, including a
normal white blood cell count, normal levels of hemoglobin and hematocrit, and normal
On January 10, 2011, Nurse Bentley saw Johnson in response to his concerns
about abdominal discomfort and diarrhea. Johnson reported that he only had diarrhea,
and no longer had alternating constipation.
appetite, dizziness and fatigue.
He also reported, however, having less
He was concerned about his abdominal issues,
unintentional weight loss and colon cancer.
Bentley noted in Johnson’s chart that he had occult blood in his stools, but that
recent lab work had returned normal results. Bentley assessed Johnson has having either
irritable bowel syndrome or celiac disease and ordered loperamide, which is an antidiarrhea medication. Bentley further noted that she found “nothing concerning.” Even
so, she ordered a colonoscopy for Johnson and a check for anti-tissue transglutaminase
antibodies, which would check for celiac disease.
Finally, Bentley did not believe
Johnson had ulcerative colitis or Crohn’s disease, because his blood work results came
On January 14 and 17, 2011, Johnson had additional nurse visits in response to
his complaints of continued diarrhea with blood and mucous despite the anti-diarrhea
medication Bentley had provided. In response, Johnson was given Pepto-Bismol and a
Common signs of ulcerative colitis would include blood work showing an elevated
sedimentation rate and CRP level, and possibly lower hemoglobin and hematocrit.
handout on celiac disease. On January 19, the lab test for celiac disease antibodies was
negative. On January 20, Johnson submitted another health service request for diarrhea.
On January 21, 2011, Dr. Hannula again saw Johnson. Johnson reported that for
approximately two months, he had been suffering from frequent diarrhea, multiple night
wakings, losing weight and poor appetite. Johnson did not, however, report constipation.
Given that this was the first time Johnson had reported to Dr. Hannula that he had
diarrhea without constipation, Hannula suspected that Johnson had ulcerative colitis.
Nevertheless, since Johnson was already scheduled to have a colonoscopy, which would
esophagogastroduodenoscopy (“EGD”) to his colonoscopy order, and she also ordered
repeated blood and lab work.9 Hannula ordered the EGD to diagnose other potential
causes of Johnson’s symptoms, including Crohn’s disease.
Johnson saw Dr. Hannula again one week later. On January 27, 2011, Johnson
provided stool samples at the appointment, and Hannula noted that the samples were
liquid and blood-tinged. Hannula had Johnson stay in the health services unit for a few
hours to collect further samples, in which he apparently had three bloody stools in three
hours, mixed with a small amount of mucous. As a result this appointment, Hannula felt
that Johnson’s symptoms presented most consistent with ulcerative colitis.
ulcerative colitis could not be confirmed without a colonoscopy (which was scheduled for
the following week), Dr. Hannula started Johnson on medications for ulcerative colitis,
assuring him that: (1) a nurse would be checking his weight over the following days; (2)
An EGD is a test to examine the lining of the esophagus, stomach, and first part of the small
he would have a follow-up with her in four days; and (3) she would order a GI consult.
On January 31, 2011, Johnson saw Hannula for a follow-up appointment. His
bowel movements had decreased and he reported feeling better after starting the new
medications. His vital were taken and his weight had increased by six pounds. Even so,
his colonoscopy was still scheduled for February 2, 2011, and Hannula indicated that she
would follow-up with the results.
On February 3, 2011, the results from Johnson’s colonoscopy confirmed ulcerative
colitis. Due to these results, Johnson remained on his current medications, to which Dr.
Hannula added other medications.
While Johnson reported that his loose stools
continued to decrease, Dr. Hannula was still not yet sure of the extent of his ulcerative
colitis without receipt of the final report. At that time, Johnson was also to schedule a
follow-up appointment in two weeks. Since then, and until he transferred to a different
prison, Johnson continued to have follow-up appointments with Hannula and other
health services staff regarding his ulcerative colitis condition and any other concerns.
Plaintiff’s Remicade Infusions at JCI.
Before being transferred from SCI to JCI on January 15, 2014, Johnson had been
admitted to the hospital, where it was determined that he needed a more aggressive
treatment for his ulcerative colitis. He was ordered to receive Remicade infusions every
eight weeks. Upon arrival at JCI, Johnson was already receiving scheduled Remicade
When he was transferred to JCI, he was scheduled to have his Remicade
appointments off-site at Black River Memorial Hospital.
The medical program assistant associate (“MPAA”) at JCI, defendant Diane
Huber, is responsible for scheduling offsite appointments.
Before Huber may do so,
however, the treating provider has to write the order for treatment in the inmate’s
“prescriber’s orders.” The inmate’s chart then goes to a nurse to transcribe, sign off on
and flag for Huber to schedule the treatment. When a chart is flagged, this is an alert to
Huber to schedule an offsite appointment. If an inmate’s order for offsite treatment is
not flagged, Huber has no way of knowing that action needs to be taken on her part,
unless she receives a complaint from an inmate. When an inmate returns from an offsite
appointment with recommendations for further offsite treatment, the proper procedure is
for the request to get flagged. Once a physician or nurse practitioner review the request,
they write any orders, if they agree with the outside provider’s recommendations.
In October 2014, Huber scheduled a series of four Remicade treatments for
Johnson. She scheduled four appointments at once because the prescriber’s order was
only written for twelve months, and the hospital usually only allows appointments to be
scheduled for six to twelve months in advance. Johnson’s March 30, 2015, Remicade
treatment was the last treatment scheduled in this series.
He returned from that
appointment with an offsite service request indicating that another appointment was to
be scheduled for eight weeks. The offsite service request was reviewed and initialed by a
nurse practitioner, but the nurse practitioner never wrote any orders and never flagged
the chart for a nurse. Thus, the order was never completed by a nurse and the chart was
not flagged for Huber to schedule more offsite appointments. In other words, Huber was
never notified that she needed to schedule further Remicade appointments.
On May 29, 2015, Johnson submitted a health service stating that he was
supposed to have received a Remicade infusion that week. Although the nurse responded
that the request was “Referred to MPAA [Huber] for appointment date,” the request was
in fact never forwarded to Huber and no appointments were scheduled. On June 13,
2015, Johnson submitted a medication refill request indicating that his Remicade
treatment was three weeks late. A nurse responded that he would be notified when his
next Remicade appointment was scheduled. Unfortunately, Huber was apparently never
notified of (and never received a copy of) the June 13, 2015, medication refill request.10
That same day, Johnson submitted a health service request directly to Huber
stating that: (1) it had been 11 weeks since his last Remicade treatment; and (2) he
needed to be sent out for treatment so he did not relapse. This was the first time Huber
had heard about the delay. Huber responded that she would schedule his Remicade
treatments for every eight weeks until December 2015.
She immediately worked on
getting the appropriate orders written by the physician. Once the prescriber’s order was
written and entered by a nurse, Huber was able to schedule the series of appointments.
Meanwhile, on June 15, 2015, Johnson had written a letter to defendant Tammy
Maassen, as health services manager, complaining that he had been waiting three weeks
beyond when his Remicade treatment should have been scheduled.
Maassen to make sure he received the treatment immediately so he would not begin to
After looking into his complaints, Maassen learned that the issue had been
Defendants assert that JCI has been working on updating the practice for triaging health service
requests submitted by inmates. Currently, all health service requests are triaged by nursing staff
and requests regarding Remicade treatment should be forwarded to the MPAA. The new
procedure requires that health service requests requiring off-site appointments be directly
addressed to the MPAA. A reminder system has already been implemented, using Outlook to
notify staff when it is time to schedule the next series of appointments.
resolved and Johnson’s Remicade appointments had been scheduled for the remainder of
the year. Maassen responded to Johnson informing him that his appointments have been
scheduled for the remainder of 2015.
Johnson received his next Remicade treatment on June 19, 2015.
The states have an affirmative duty to provide medical care to their inmates.
Estelle v. Gamble, 429 U.S. 97, 103 (1976). Deliberate indifference to the serious medical
needs of prisoners constitutes the “unnecessary and wanton infliction of pain” and
violates the Eighth Amendment’s prohibition against cruel and unusual punishments. Id.
at 104. To succeed on an Eighth Amendment medical care claim, a plaintiff must show
(1) an objectively serious medical condition to which (2) a state official was deliberately,
that is subjectively, indifferent. Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000).
While all of the parties agree that ulcerative colitis is an objectively serious
medical condition, plaintiff argues, and defendants deny, that the medical treatment
afforded him shows deliberate indifference.
He has two specific claims of deliberate
(1) the failure of Dr. Hannula and Nurse Bentley at SCI to properly
diagnose and treat his ulcerative colitis from 2008 to 2011; and (2) the failure of Medical
Program Assistant Associate Maassen and Health Service Director Huber at JCI to
schedule timely infusions of Remicade. To succeed on a deliberate indifference claim
against medical providers, however, he must show more than mere negligence.
Deliberate indifference is not medical malpractice; the Eighth Amendment does
not codify common law torts. See King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012)
(“[M]edical malpractice does not become a constitutional violation merely because the
victim is a prisoner.”)
Disagreement with a doctor’s medical judgment, incorrect
diagnosis or improper treatment resulting from negligence is insufficient to state an
Eighth Amendment claim. Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997).
While deliberate indifference means more than negligent acts, it is something less
than purposeful ones. Farmer v. Brennan, 511 U.S. 825, 836 (1994). The point between
these two poles lies where “the official knows of and disregards an excessive risk to
inmate health or safety” or where “the official [is] both aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he . . . draw[s]
the inference.” Id. at 837. A jury can “infer deliberate indifference on the basis of a
physician's treatment decision [when] the decision [is] so far afield of accepted
professional standards as to raise the inference that it was not actually based on a medical
judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). See also Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir. 2014) (“A prisoner may establish deliberate indifference by
demonstrating that the treatment he received was “blatantly inappropriate.”)
however, plaintiff has insufficient evidence to permit a reasonable jury from making that
Dr. Hannula and Nurse Bentley’s Failure to Diagnose Ulcerative Colitis.
The jist of plaintiff’s argument against Hannula and Bentley is that they should
have ordered a colonoscopy and other diagnostic tests as soon as they learned that
plaintiff had unexplained blood in his GI tract in conjunction with other GI distress.
Plaintiff contends that the failure to do so shows deliberate indifference, at least when
coupled with the continued treatment for constipation, adherence to the irritable bowel
syndrome diagnosis, and failure to schedule more frequent follow-up appointments.
Even construing the evidence in the light most favorable to plaintiff, however, the facts
do not support this argument.
Perhaps plaintiff’s strongest undisputed fact is that between February 2008, when
Hannula and Bentley began treating him, and February 3, 2011, when he was diagnosed
with ulcerative colitis, plaintiff complained to medical staff approximately 20 times about
GI pain or trouble. Even so, the majority of his complaints were not about symptoms
that would have suggested ulcerative colitis or any other serious diagnosis. During 2008,
most of his complaints were about constipation. Moreover, he reported feeling well and
having a good appetite during this period. He also reported no unexplained weight loss,
blood in his stool or severe abdominal pain.
Accordingly, Dr. Hannula and Nurse
Bentley both believed that his symptoms suggested irritable bowel syndrome and possibly
Plaintiff has adduced no evidence suggesting that their diagnoses were
unreasonable or even incorrect.
Further, the facts show that Hannula and Bentley
consistently provided treatment for plaintiff’s symptoms, and that Hannula and Bentley
chose not to order additional testing because they did not think it necessary or
appropriate to order testing for someone of plaintiff’s age who had constipation and a
concern about a family history of cancer, but generally reported feeling well.
Even in January, February and March of 2009, when plaintiff again complained of
diarrhea, mucous and blood in his stools, he also complained of continued constipation.
Since this seemed consistent with irritable bowel syndrome and hemorrhoids, Hannula
and Bentley continued to treat him accordingly.
Plaintiff did not make similar
complaints about diarrhea with bleeding again until December 3, 2010, and even then,
there is no evidence that Hannula or Bentley had notice of these complaints. Moreover,
plaintiff refused a rectal exam at his December 4 appointment that may have helped
determine whether his bleeding was attributable to hemorrhoids.
As a result, there is no evidence that Hannula or Bentley learned of plaintiff’s
worsening symptoms until January of 2011. At his January 10, 2011 appointment with
Bentley, plaintiff complained of diarrhea without constipation, less appetite, dizziness
and unintentional weight loss. The contemporaneous treatment notes indicate that these
complaints were markedly different than his previous complaints.
These notes also show that Bentley responded to this change: she reviewed his
recent lab results, ordered further tests to check for celiac disease, ordered a colonoscopy
and provided anti-diarrheal medication.
Similarly, when Dr. Hannula learned of
plaintiff’s worsening condition and new symptoms on January 21, she acted on her
suspicion of ulcerative colitis. In particular, since plaintiff was already scheduled for a
colonoscopy, Hannula also ordered an EGD and repeat blood and lab work. A few days
later, Hannula collected stool samples from plaintiff, starting him on medications for
ulcerative colitis, which helped plaintiff feel better almost immediately.
Given this history of plaintiff’s symptoms and the ongoing care provided by
Hannula and Bentley, however imperfect it may have been in hindsight, no reasonable
jury could find that their failure to perform or order invasive tests, such as rectal exams or
a colonoscopy, was “blatantly inappropriate” or showed complete lack of medical
judgment. Rather, the facts show that Hannula and Bentley’s treatment and assessment
of plaintiff were supported by plaintiff’s presentation at each of his appointments with
Plaintiff relies on Dr. Clarke’s expert report as the sole basis for his argument that
Hannula and Bentley were deliberately indifferent to plaintiff.
Despite Dr. Clarke’s
qualifications and expertise, however, his report does not justify a different view of the
facts here. First, Dr. Clarke never identifies the symptoms of ulcerative colitis, irritable
bowel syndrome or any other GI disorder. This deficiency is significant, because without
an expert to identify the common symptoms of these diseases, plaintiff has no support
for his argument that Hannula and Bentley were deliberately indifferent when they failed
to diagnose ulcerative colitis sooner. In other words, no reasonable jury could accept
plaintiff’s suggestion that Hannula and Bentley should have suspected ulcerative colitis
before 2011 when there is no evidence in the record suggesting that plaintiff even had
ulcerative colitis before December 2010. Steele v. Choi, 82 F.3d 175, 178-79 (7th Cir.
1996) (affirming summary judgment to prison medical staff on prisoner’s Eighth
Amendment claim that defendants failed to diagnose hemorrhage when plaintiff’s
symptoms did not make it obvious that he had suffered a hemorrhage); Turner v. Cox, 569
F. App'x 463, 467-68 (7th Cir. 2014) (defendants’ failure to test for h. pylori earlier was
not deliberate indifference where plaintiff had not submitted evidence that his earlier
symptoms were even consistent with h. pylori).
Additionally, Dr. Clarke does not dispute that plaintiff was exhibiting symptoms
of irritable bowel syndrome and hemorrhoids.
In particular, he does not deny that
constipation alternating with loose stools, such as plaintiff was experiencing, are common
symptoms of irritable bowel syndrome or that hemorrhoids can bleed off and on for
years. He also does not dispute that positive occult blood results can be the result of a
number of different conditions, with the most common for young patients being
hemorrhoids or anal fissures. (See Hannula Dep., dkt. #95, at 33-35.) Nor does Clarke
directly dispute Hannula and Bentley’s opinion that plaintiff’s symptoms appeared to
remain relatively stable until late 2010, when they changed significantly. Finally, Clarke
never disputes that, if plaintiff was indeed suffering from irritable bowel syndrome and
hemorrhoids until late 2010, Hannula and Bentley provided the correct treatment for
Without such contrary opinions, Dr. Clarke’s report does not raise a genuine
factual dispute about the appropriateness of Dr. Hannula’s and Nurse Bentley’s
treatment of plaintiff, let alone whether they were deliberately indifferent. See, e.g., Ray
v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013) (“Ray does not deny
that, if his pain stems from arthritis, his treatment is appropriate.”); Mlaska v. Talbot, 571
F. App'x 483, 486-87 (7th Cir. 2014) (“So long as Talbot's diagnosis was consistent with
Mlaska's symptoms, and Talbot thought he was appropriately treating them (and the
record does not suggest otherwise), he was not deliberately indifferent.”)
At most, Dr. Clarke’s opinions boil down to his opinion that Hannula and Bentley
should have performed more rectal exams and ordered more tests (specifically, a
colonoscopy and possibly more lab tests) to determine the cause of the blood in
plaintiff’s stool stemming back to 2005. Clarke’s opinions, however, fail to address the
reasons Dr. Hannula and Nurse Bentley have given for declining to order additional tests.
In particular, Clarke ignores the long periods of time where plaintiff’s symptoms were
either resolved, or at least controlled, by the treatment provided by Hannula and Bentley.
Although Clarke suggests that plaintiff suffered from continuous bleeding, pain or other
symptoms that remained unexplained from 2005 to February 2011, when he was
ultimately diagnosed with ulcerative colitis, this is simply not supported by the
undisputed facts. Rather, the facts show that there were lengthy periods between 2005
and late 2010 in which plaintiff reported no serious symptoms at all, instead he reported
feeling well. Clarke’s opinions also seem to assume that even if plaintiff had periods in
which he felt well, Hannula and Bentley should have done more to determine what had
caused his previous bleeding. Again, however, Clarke ignores that Hannula and Bentley’s
assessment of and periodic treatment for probable irritable bowel syndrome with
hemorrhoids did take into account plaintiff’s intermittent symptoms and test results
stemming back to 2005. Finally, Clarke never states in his report that an assessment of
probable irritable bowel syndrome with hemorrhoids is inconsistent with plaintiff’s
intermittent symptoms from 2005 to late 2010, at which time his symptoms clearly
Ultimately, Clarke’s opinions constitute a difference of opinion between medical
providers, which is not enough to go forward to trial. See Burton v. Downey, 805 F.3d
776, 786 (7th Cir. 2015) (“evidence that another doctor would have followed a different
course of treatment is insufficient to sustain a deliberate indifference claim”); see also
Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996) (“Mere differences of
opinion among medical personnel regarding a patient’s appropriate treatment do not give
rise to deliberate indifference.”); Pyles, 771 F.3d at 411 (7th Cir. 2014) (“An MRI is
simply a diagnostic tool, and the decision to forego diagnostic tests is ‘a classic example
of a matter for medical judgment.’”) (quoting Estelle, 429 U.S. at 107); Walker v. Peters,
233 F.3d 494, 499 (7th Cir. 2000) (“A doctor might be careless in not appreciating the
need to investigate several possible explanations for a particular prisoner’s symptoms, and
this carelessness may constitute malpractice. But malpractice alone is not enough to meet
the constitutional standard.”)
Although Dr. Clarke opines that more diagnostic testing would have been
appropriate, Hannula and Bentley believed it was unnecessary, and even risky, to order
an invasive test, such as a colonoscopy, without more compelling symptoms, particularly
where the barium enema in 2007 had shown no signs of cancer, ulcerative colitis or
Crohn’s disease. See, e.g., Hannula Dep. at 70:22-24 (“[A] colonoscopy is an invasive
test, so there needs to be an indication for one. There was no indication at this point for
a colonoscopy.”); 78:13-22 (Hannula believed plaintiff was suffering from hemorrhoids
based on “[t]he positive occult blood test with a negative barium enema [and results of
previous] rectal exam[,] . . . Hemorrhoids will give you positive occult blood.
Hemorrhoids will bleed on and off. So the barium enema ruled out any serious
underlying pathology, so the positive hemoccults were probably explained most likely by
Plaintiff’s reliance on Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005), is also not
helpful. In Greeno, the inmate visited a prison doctor complaining of severe heartburn
and vomiting. The doctor made notes on two separate occasions to rule out a chronic
peptic ulcer and gastro-esophageal reflux disease, but never did so. Instead, the inmate
was prescribed several medications to treat his heartburn and antacids for his vomiting.
Despite this treatment actually making Greeno’s condition worse, a fact he
communicated to his doctors, no effort was made to find an underlying cause for his
discomfort. On the contrary, at some point, medical personnel denied him treatment
altogether. After months of ineffective treatment, a specialist eventually tested him for
an esophageal ulcer. When those tests came back positive for a distal ulcer, Greeno was
finally properly treated.
To compound matters, the months of taking antacids had
caused damage to Greeno’s colon and bowels. Id. at 650-51.
The Seventh Circuit held that this evidence was sufficient to find the medical staff
treating Greeno was subjectively indifferent to his serious medical condition. Central to
that holding, however, was the fact that “[t]he possibility of an ulcer was first noted in
Greeno’s chart in August 1995” after which “the defendants doggedly persisted in a
course of treatment known to be ineffective.” Id. at 655. Indeed, the contemporaneous
evidence was overwhelming that the course of treatment prescribed Greeno was not
effective, and that he repeatedly complained of worsening symptoms to medical staff over
the course of a year.
Despite this evidence, the medical staff became increasingly
frustrated with Greeno’s requests for treatment, refused to alter his treatment when the
condition became worse, and even denied him further medication at one point.
Unlike in Greeno, there is no evidence here that Dr. Hannula or Nurse Bentley
thought ulcerative colitis was a possibility, given their diagnosis of probable irritable
bowel syndrome and hemorrhoids, nor that the course of prescribed treatment was
unhelpful, much less worsening his condition. Neither is there evidence that plaintiff’s
symptoms were obviously attributable to ulcerative colitis. The evidence here indicates
that unlike the medical staff in Greeno, Hannula and Bentley repeatedly assessed and
treated plaintiff’s condition.
If anything, plaintiff’s case is similar to Duckworth v. Ahmad, 532 F.3d 675, 682
(7th Cir. 2008). In that case, an inmate with bladder cancer sued two different doctors,
both of whom had failed to diagnose the cancer and instead treated him for a gross
Nevertheless, the Seventh Circuit found no evidence of deliberate
indifference. In particular, there was no evidence that one of the doctors ever suspected
cancer, nor that his failure to order additional testing or pursue a “more aggressive
treatment” was the product of deliberate indifference.
Id. at 680.
As for the other
doctor, he “was aware that cancer was a risk but erroneously thought that another
condition was more likely causing Duckworth’s symptoms.” Id. Thus, he continued to
provide treatment to Duckworth for the other condition.
The Seventh Circuit explained that this was not deliberate indifference because
the evidence established that the doctor “tried to cure what he thought was wrong with
Duckworth, an opinion he arrived at using medical judgment.” Id. at 681. The court
reached this conclusion despite a report from an expert urologist who stated that “cancer
should always be ruled out first before other conditions when a patient has gross
hematuria.” Id. The court concluded that, “[t]his may be a fair statement of how a
reasonable doctor would treat Duckworth’s symptoms, but it does not shed any light into
[the doctor’s] state of mind. Nor did [the doctor’s] chosen course of treatment so depart
from accepted professional practice as to allow the jury to infer indifference.” Id.
So, too, here. The undisputed records shows that Hannula and Bentley tried to
treat what they thought was wrong with plaintiff. In the face of Hannula’s and Bentley’s
reasonable, if possibly mistaken, explanations for their respective care decisions, and the
lack of any evidence suggesting that their care decisions were “blatantly inappropriate,”
or so departed from accepted professional practice as to infer indifference, a reasonable
jury could not find that in deciding not to order additional tests or perform additional
exams, defendants Hannula and Bentley failed to use medical judgment at all or that
their judgment was “such a substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person responsible did not base the
decision on such a judgment.” Estate of Cole, 94 F.3d at 261–62. Accordingly, defendants
are entitled to summary judgment on plaintiff’s Eighth Amendment claim against
Hannula and Bentley.
Maassen and Huber’s Failure to Schedule Timely Remicade Infusions.11
Plaintiff argues in his opposition brief that he is pursuing a claim against Maassen and Huber
related to delayed “Remicade infusions” in the fall of 2014. (Pl.’s Br. at 18.) However, plaintiff
never pled such a claim against Maassen and Huber. Instead, plaintiff was granted leave to
amend his complaint on March 3, 2015, to add a claim against “Eric Doe” (later identified as Eric
Stugen) regarding a delayed Remicade treatment in the fall of 2014. (Dkt. #49.) Moreover,
plaintiff’s proposed amended contained no allegations against Maassen or Huber, who were not
defendants in the case at the time. While plaintiff later sought, and was granted, leave to add
claims against Maassen and Huber regarding a delayed Remicade infusion in the summer of 2015
(dkt. ##61, 66), he instead voluntarily dismissed his claim against Eric Stugen without ever
asserting a claim against Maassen and Huber based on an alleged fall of 2014 delay. Accordingly,
the court will not consider plaintiff’s arguments relating to that claim.
On this record, entry of summary judgment is even more compelling as to
plaintiff’s claims against defendants Maasen and Huber. Plaintiff alleges that Maassen
and Huber were deliberately indifferent to his serious medical needs because there was a
delay in his Remicade infusion in the summer of 2015. Plaintiff was supposed to receive
the infusion around May 21, 2015, but actually received it on June 19. Plaintiff now
contends that this delay caused his ulcerative colitis to become “mildly symptomatic.”
This claim fails for two reasons. First, plaintiff has failed to show that he had a
serious medical need for the Remicade infusions every eight weeks. Defendants correctly
point out that in this instance, the relevant “medical need” was not plaintiff’s ulcerative
colitis itself, but the medication used to treat it some three weeks sooner. The Seventh
Circuit has explained that, “[i]n cases where prison officials delayed rather than denied
medical assistance to an inmate,” the plaintiff must “offer verifying medical evidence that
the delay (rather than the inmate’s underlying condition) caused some degree of harm.”
Conley v. Birch, 796 F.3d 742, 749 (7th Cir. 2015) (citing Jackson v. Pollion, 733 F.3d 786,
790 (7th Cir. 2013)). Here, plaintiff has offered no medical evidence that the delay
caused the mild flare-up in symptoms. His expert, Dr. Clarke, offers no testimony in
support of this claim, and plaintiff points to no other source of evidence to support his
argument. For example, he has no evidence that he requested treatment or complained
about symptoms during this time. He has not even submitted testimony in the form of a
declaration stating that he suffered a flare-up.
Even if plaintiff had shown a serious medical need for the infusions every eight
weeks and that he suffered harm from the three-week delay, plaintiff has shown at most
that Maassen or Huber acted negligently in responding to that need, not that they were
deliberately indifferent to it. The evidence shows that in October 2014, Huber scheduled
four Remicade treatments for plaintiff. His last appointment for the four treatments
scheduled by Huber was March 30, 2015. After his March 30 appointment, plaintiff
returned with an offsite service request that indicated he should be scheduled for another
appointment in eight weeks.
Plaintiff argues that Maassen and Huber were deliberately indifferent for failing to
schedule further infusions after he returned with the offsite service request, but Huber
could not be expected to schedule appointments she knows nothing about.
contrary, while institution procedures mandated that a physician or nurse practitioner
must review offsite service requests, and write any orders necessary if they agree with the
outside provider’s recommendations, the record appears to suggest that no physician or
nurse practitioner wrote an order for the next set of Remicade treatments. As a result,
Huber did not know she was supposed to schedule them. In fact, Huber did not learn
that plaintiff’s Remicade infusions were past due until she received his health service
request directed to her on June 13, 2015. After she received the request, the record
shows she immediately began work to secure appropriate orders, and schedule his
Remicade appointments going forward as well. With respect to Maassen, she did not
learn about the delayed Remicade treatments until June 15, 2015, when she received a
letter from plaintiff. Upon looking into his complaint, she then learned that Huber had
already resolved the issue by scheduling appointments for the remainder of 2015,
something Maassen then reported to plaintiff.
In short, plaintiff has no evidence that Huber or Maassen were responsible for the
delayed Remicade treatments.
Accordingly, plaintiff has not shown that they were
deliberately indifference. Defendants are entitled to summary judgment on this claim.
IT IS ORDERED that defendants’ motion for summary judgment (dkt. #70) is
GRANTED. The clerk of court is directed to enter judgment for defendants and close
Entered this 9th day of February, 2016.
BY THE COURT:
WILLIAM M. CONLEY
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