Puerner, Lester v. Hines, David et al

Filing 93

ORDER granting 73 Motion for Summary Judgment. The clerk of court is directed to enter judgment for defendant and close this case. Signed by Magistrate Judge Stephen L. Crocker on 7/28/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LESTER PUERNER,
Plaintiff
v.

OPINION and ORDER
14-cv-781-slc

DAWN ATKINSON,
Defendant.
Plaintiff Lester Puerner is proceeding pro se on a claim that defendant Dawn Atkinson
violated his rights under the Eighth Amendment and state law by denying him adequate
compression supports to treat blood clots in his legs. Atkinson has moved for summary
judgment. Dkt. 73. Because the evidence shows that Atkinson did not violate Puerner’s rights,
I am granting summary judgment in her favor.

UNDISPUTED FACTS1
A.

The Parties
Plaintiff Lester Puerner was incarcerated at the Oshkosh Correctional Institution (OCI)

at all times relevant to this case. Puerner has been diagnosed with peripheral vascular disease
with a long history of varicose veins, and as a result has worn compression support stockings for
many years.
Defendant Dawn Atkinson is an advanced nurse practitioner, with certification as a
family nurse practitioner and geriatrics nurse practitioner. Atkinson has worked at various
prisons in Wisconsin pursuant to a contract with Registry of Physician Specialists, a California
corporation. In 2014, Atkinson provided medical services at OCI. While there, she provided
medical care to Puerner from approximately February 17 to August 28, 2014.
1

The following facts are material and undisputed unless otherwise noted. The facts are drawn from

the parties’ proposed findings of fact and responses.

B.

Atkinson’s Medical Treatment of Puerner2
Puerner’s first appointment with Atkinson was on February 17, 2014.

At that

appointment, Puerner told Atkinson that he needed new TEDS support stockings that provided
30-40 mmHg support, rather than 20-30 mmHg.3 (Puerner had received 20-30 mmHg stockings
in September 2013 from his then-treating physician, Mary Sauvey, M.D.) Atkinson examined
Puerner, noted that his current stockings were loose, and wrote an order for “New TEDS – 3040 mm – 2 pairs.” That same day, the nurse responsible for fulfilling the order returned it to
Atkinson for clarification, noting that “[w]e don’t have 30-40 mm TEDS, we have small, med,
large, XL, XXL, both knee high and thigh high lengths. If the 30-40 mm is length, he will need
Regular or Long.” Atkinson issued a new prescriber order on February 18, 2014, stating, “make
TEDS waist high and regular compression.”
After Puerner received the new stockings, however, he realized he had inadvertently asked
Atkinson for the wrong brand. He told health services unit staff that he actually needed JOBST
stockings, not TEDS stockings, as the TEDS brand stockings were ineffective for him. Atkinson
subsequently discontinued the TEDS order and directed a nurse to measure Puerner for JOBST
stockings. On March 3, 2014, Puerner was measured for new JOBST stockings, and on March
10, new JOBST stockings were ordered.

2

In addition to treating Puerner for his varicose veins and vascular disease, Atkinson treated
Puerner for many other medical issues, including joint pain, arthritis, chronic lymphocytic leukemia, hernia
am ong others. Puerner makes no claims in this case regarding the treatment he received for his other
health conditions.
3

“mmHg” stand for millimeter of mercury, a unit of measure for pressure. 52 mmHg equals about
1 psi (pounds per square inch).

2

At some point in March 2014, Atkinson was told that JOBST stockings at 30-40 mmHg
were no longer available through DOC’s current supplier. Also, in reviewing Puerner’s records,
Atkinson learned that on one or two occasions he had cut off his JOBST stockings, or parts of
them, due to pain from tightness. On March 27, 2014, Atkinson entered a new prescriber order:
3/27/14 Jobst stocking 20-30 mm Hg to PT indefinitely until 30-40 mm
MG Jobst stockings available. (Cut off 30-40 in past) Verbal order D.
Atkinson APNP/____ D. Atkinson, APNP.
On March 31, 2014, Atkinson wrote a prescriber order stating:
Patient to be updated. Will get 20-30 mmHg leg supports as cut off 3040 in past R/T [related to] tightness.
On April 2, 2014, Puerner was offered the new 20-30 mmHg JOBST stockings. He
refused them, however, stating he would only wear 30-40 mmHg. He also explained that he had
not cut off the previous 30-40 mmHg stockings because they were too tight, but rather because
they were worn out. The nurse notified Atkinson of his refusal.
Atkinson consulted with the manager of the health services unit regarding Puerner’s
request for 30-40mmHg stockings. The HSU manager recommended that Puerner be prescribed
the 20-30 mmHg supports because that was what the supplier offered, unless Atkinson thought
a higher compression was medically necessary. Atkinson did not, so on April 3, Atkinson issued
the following order:
I will not address JOBST stocking issues anymore. Patient is getting what
we supply and he will wear without altering.
Puerner met with Atkinson again on April 16, 2014 regarding his stockings. Puerner told
Atkinson he wanted 30-40 mmHg JOBST stockings as recommended to him by the Veteran’s
Administration for deep venous thrombosis, and also that he needed two new pairs every four

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months. Atkinson responded that she would provide new stockings when his current pairs were
worn out and that she would order 30-40 mmHg if he could produce an order showing that he
needed them. She also discussed what deep venous thrombosis is, how it develops, and how to
prevent it. At this point, Atkinson did not believe Puerner had ever been diagnosed with deep
venous thrombosis; nor did Puerner show any symptoms of having deep venous thrombosis.
However, Atkinson ordered nursing staff to check Puerner’s feet at night to see if there was
edema or swelling to the feet or signs of other problems indicative of deep venous thrombosis.
The nurses performed these checks; they did not find any of these symptoms.
On May 23 and 28, 2014, Puerner again complained to nursing staff about his support
stockings. At some point, Puerner provided Atkinson with a note from a physical therapist
recommending JOBST stockings of 30-40 mmHg. On May 29, 2014, Atkinson spoke with Dr.
Patrick Murphy about Puerner. Dr. Murphy was a family practice physician who had treated
Puerner previously at OCI. After talking with Murphy, Atkinson called a meeting for June 5,
2014 with Dr. Murphy and Puerner. At this meeting, Atkinson and Murphy concluded that
Puerner should continue using waist-high compression stockings at 20-30 mmHg, with checks
every 6 months for a new pair. Both Aktinson and Murphy believed that the 20-30 mmHg
JOBST stockings were appropriate for Puerner’s condition of peripheral vascular disease and
varicose veins. Atkinson again told Puerner that she would consider changing her order if
Puerner supplied a physician’s order for 30-40 mmHg due to a diagnosis of deep venous
thrombosis, but that the note from the physical therapist was not sufficient. Atkinson also
declined to refer Puerner to a vascular specialist so he could be assessed for deep venous
thrombosis.

4

Atkinson stopped providing care at OCI in August 2014. Puerner did not develop deep
venous thrombosis during Atkinson’s tenure at OCI; nor did he ever have any incidents
stemming from deep venous thrombosis such as pulmonary embolism, stroke, or other
conditions that could result from deep venous thrombosis.

C.

Veteran’s Administration Records
Puerner maintains that he was diagnosed with deep venous thrombosis at some point

while he was being treated by the VA. However, Atkinson’s counsel obtained Puerner’s medical
records from the VA going back to 1998, and none of the records indicate that he was ever
diagnosed deep venous thrombosis. Records from 1998 and 1999 indicate that Puerner had
been diagnosed as having varicose veins in both his legs and chronic venous insufficiency, also
known as peripheral vascular disease. In December 1998, the VA referred Puerner to a vascular
specialist, who ordered that Puerner be provided with medium compression thigh-high JOBST
stockings for his varicose veins. In April 1999, a physician in the VA Hospital’s Peripheral
Vascular Surgery Clinic again diagnosed varicose veins and ordered a consultation with physical
therapy/occupational therapy so that he could again be provided with compression stockings.
The physician’s order stated that Puerner should be provided “graded compression stockings
measure for 20-30 mmHg or 30-40 mmHg<prefer.” The instruction to physical therapy stated
PLEASE FIT PATIENT WITH KNEE HIGH 20-30 MMHG or 30-40
MMHG-PREFERRED .

The VA records provide no information to whether the physician or Puerner was the source of
the “prefer 30-40 mmHg.” A May 17, 1999, physical therapist’s note indicates that Puerner was
fitted for SigVaris pantyhose, closed-toe style compression hose, 30-40 mmHg.
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OPINION
The states have an affirmative duty under the Eighth Amendment to provide medical care
to their inmates. Estelle v. Gamble, 429 U.S. 97, 103 (1976). To succeed on his claim that
Atkinson violated his right to medical care under the Eighth Amendment, Puerner must show
(1) an objectively serious medical condition to which (2) Atkinson was “deliberately indifferent.”
Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000). “Deliberate indifference” means that
Atkinson was aware that Puerner needed medical treatment, but disregarded an excessive risk
to his health by consciously failing to take reasonable measures to address it. Arnett v. Webster,
658 F.3d 742, 751 (7th Cir. 2011); Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997).
On the question whether Puerner had a serious medical need, the evidence shows that
Puerner has been diagnosed with varicose veins and peripheral vascular disease. Puerner, who
has the burden of proving that he had a serious medical condition, did not provide evidence
about the seriousness of his conditions or any symptoms that he suffered from them. For her
part, Atkinson states in her declaration that Puerner’s varicose veins and peripheral vascular
disease are not “serious medical conditions,” Atkinson Dec., dkt. 75, ¶ 62, but she provides no
explanation for this opinion.
For the purposes of summary judgment, I will assume that Puerner’s varicose veins and
vascular disease were serious medical conditions. Certainly, in some cases varicose veins may be
solely a cosmetic concern, but in other cases they may cause extreme pain and may lead to more
serious health problems.4

4

Likewise, chronic venous insufficiency may present only mild

http://www.mayoclinic.org/diseases-conditions/varicose-veins/home/ovc-20178078.

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symptoms, but also can cause pain, swelling and severe complications.5

Moreover, it is

undisputed that medical professionals have prescribed compression stockings as treatment for
Puerner’s conditions for many years. Williams v. Rodriguez, 509 F.3d 392, 401 (7th Cir. 2007)
(“A medical condition is deemed to be objectively serious if it is ‘one that has been diagnosed
by a physician as mandating treatment. . . .’.”) (citation omitted).
But Puerner’s claim falters on the second prong of the Eighth Amendment analysis
because he has not submitted evidence from which a jury could find that Atkinson was
deliberately indifferent to his medical needs. To show a genuine issue of material fact on the
deliberate indifference prong, Puerner needed to submit evidence suggesting that Atkinson’s
treatment decisions were “blatantly inappropriate,” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.
2014), clearly “ineffective,” Smego v. Mitchell, 723 F.3d 752, 758 (7th Cir. 2013) or “so far afield
of accepted professional standards as to raise the inference that [they] [were] not actually based
on a medical judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). Puerner’s
evidence falls far short of this standard.
Puerner argues that he needed 30-40 mmHg compression stockings because he has deep
venous thrombosis. But Puerner concedes in response to several of Atkinson’s proposed findings
of fact that he has no proof that he ever received a diagnoses of deep venous thrombosis; the VA
records do not show that Puerner ever was diagnosed with deep venous thrombosis; and Puerner
never had any symptoms of deep venous thrombosis during the time that Atkinson treated him.
Plt.’s Resp. to DPFOF, dkt. 89, ¶¶ 43, 67, 71, 86, 88, 90.

5

https://vascular.org/patient-resources/vascular-conditions/chronic-venous-insufficiency.

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This means that the only evidence Puerner has to support his claim are medical records
showing that in 1998 and 1999, VA physicians issued orders for compression stockings that
were either 20-30mmHg or 30-44 mmHg, with the 30-40 mmHg stockings being “preferred.”
These records are simply not enough to show that Puerner actually needed 30-40 mmHg
stockings in 2014, let alone that Atkinson was deliberately indifferent because she chose not to
specially order them for him. Instead, the VA orders show that, about 15 years earlier, VA
doctors thought that Puerner would benefit from either level of compression for his varicose veins
and venous insufficiency. These records tell us next to nothing about Puerner’s compression
needs in 2014; they do not come close to establishing that Atkinson was deliberately indifferent
for failing to supply Puerner with higher level compression stockings.
At most, Puerner’s evidence shows that he wanted higher-level compression stockings and
he disagreed with Atkinson’s decision not to specially order them for him.

But “mere

disagreement with a doctor's medical judgment” is not enough to support an Eighth Amendment
violation. Cesal v. Moats, 851 F.3d 714, 722 (7th Cir. 2017). This is particularly true where, as
here, all of the medical providers to review Puerner’s diagnoses, including Atkinson, Dr. Murphy,
Dr. Sauvey and the VA doctors, concurred that 20-30 mmHg stockings would be sufficient.
Puerner’s evidence is also insufficient to support a negligence claim, as he has no evidence
from which a jury could infer that Atkinson breached her duty of care to him or that he suffered
injury as a result. Paul v. Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507, 625 N.W.2d 860
(negligence claim requires proof of (1) a breach of (2) a duty owed (3) causing (4) harm to the
plaintiff).

Specifically, Puerner has no evidence that wearing 20-30 mmHg compression

stockings caused him pain, increased his risk of deep venous thrombosis, or even that they failed

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to provide the support he actually needed for his varicose veins and venous insufficiency.
Without such evidence, Puerner cannot sustain a negligence claim. Accordingly, I am granting
summary judgment to Atkinson on Puerner’s Eighth Amendment and state law claims.
One final note: Puerner repeatedly requested that the court recruit counsel for him,
arguing that a lawyer would have an easier time gathering evidence and proving his claim. I
denied Puerner’s requests, however, noting that Puerner’s claim was legally and factually
straightforward and that Puerner appeared capable of presenting his arguments and evidence on
his own. After reviewing the parties’ summary judgment submissions, I conclude that a lawyer
could not have obtained a more favorable outcome for Puerner on Atkinson’s motion for
summary judgment. Atkinson’s attorney obtained and presented to the court the very medical
records that Puerner contended would support his claim. But these medical records did not
support his claim that he needed 30-40 mmHg compression stockings as treatment for deep
venous thrombosis. The undisputed material facts demonstrate that Puerner’s claims are
unsupported.

ORDER
IT IS ORDERED that defendant Dawn Atkinson’s motion for summary judgment (dkt.
73) is GRANTED. The clerk of court is directed to enter judgment for defendant and close this
case.
Entered this 28th day of July, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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