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Diggs v. Ghosh

United States Court of Appeals, Seventh Circuit

March 13, 2017

Herbert Diggs, Plaintiff-Appellant,
v.
Parthasarathi Ghosh, et al., Defendants-Appellees.

          Submitted February 21, 2017 [*]

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 3563 - John W. Darrah, Judge.

          Before Wood, Chief Judge, and Posner and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         In 2014, Herbert Diggs, an Illinois prisoner, sued three doctors and the former warden of State-ville Correctional Center, asserting principally that they were deliberately indifferent to a full tear in his right knee's anterior cruciate ligament ("ACL"). The tear had been diagnosed in 2009. When he filed suit in 2014 Diggs was (and for all we know he still is) waiting for surgery to repair the tear. The district court granted summary judgment for the defendants. We affirm in part and vacate and remand in part.

         Because we are reviewing a grant of summary judgment, we consider facts that are undisputed, and where the evidence conflicts, we consider the version more favorable to plaintiff Diggs as the non-moving party. We also give him the benefit of reasonable inferences from the evidence. White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016). Diggs injured his knee in a fight with a cellmate in 2006, and for three years his ACL tear went undiagnosed. In the interim, he repeatedly complained to medical staff about knee pain, swelling, and instability (fourteen times he orally requested treatment from medical staff), for which they gave him pain medication.

         In July 2009, Dr. Parthasarathi Ghosh, the prison's medical director, saw Diggs after he complained of right-knee instability. Dr. Ghosh recommended that Diggs be assigned to a lower bunk on a lower floor and ordered an MRI. The following month Dr. Ghosh referred Diggs to the University of Illinois-Chicago Medical Center ("UIC") for the MRI, which revealed that his right ACL had a complete tear. Dr. Ghosh then got approval from Wexford Health Sources, Inc. (the private company that contracts with Illinois to provide medical care to prisoners) for Diggs to receive orthopedic follow-up at UIC. Wexford's approval is required whenever an inmate needs outside medical care.

         In October 2009, Diggs had his first of three visits with Dr. Alfonso Mejia, an orthopedist at UIC who is not a defendant in this case. Diggs had a range of motion in his knee of zero to ninety degrees, which Dr. Mejia thought was too stiff for ACL surgery. Dr. Mejia explained that Diggs needed "to be made into a better preoperative candidate" before being evaluated for knee surgery. Dr. Mejia recommended ibuprofen, a crutch, "extensive aggressive physical therapy" and a follow-up appointment in four to six weeks. A month later, at Dr. Ghosh's request, Wexford pre-approved knee surgery for Diggs. From a constitutional standpoint, so far, so good.

         But then, notwithstanding Dr. Mejia's recommendations, Diggs received no physical therapy and no medical follow-up. In February 2010, Diggs complained to Dr. Ghosh of continuing knee pain. Dr. Ghosh taught Diggs stretching exercises that he could perform in his cell, and he expanded Diggs's medical permit to include a crutch, a knee sleeve, and special boots. Dr. Ghosh did not understand why the pre-approved surgery had not taken place, so he obtained approval from Wexford to have Diggs follow up with Dr. Mejia regarding the reason for the delay.

         At a visit in July 2010, Diggs told Dr. Mejia that he had not received any physical therapy for his knee in the past nine months, and Dr. Mejia noted that his range of motion had decreased slightly to ten to eighty degrees. Dr. Mejia recommended that Diggs receive physical therapy before being evaluated for surgery. Dr. Ghosh noted Mejia's recommendation and promptly referred Diggs to the physical therapist, an outside contractor who came to the prison twice weekly. According to the physical therapist's notes, Diggs steadily improved over the next two months and by October 2010 was "ready for surgery." Dr. Ghosh initially approved the physical therapist's recommendation for surgery, but he later decided to wait and to reevaluate the situation depending on whether Diggs continued to complain about pain.

         Another two years passed, during which Diggs had no follow-up. Dr. Ghosh renewed Diggs's medical permit in February 2011, but otherwise took no further action. Three months later, Dr. Imhotep Carter replaced Dr. Ghosh as the prison's medical director, and he did not examine Diggs for nearly a year. In the meantime, Diggs regularly complained about his knee pain to other medical staff. When Dr. Carter examined Diggs in March 2012, he learned of Diggs's knee injury noted Diggs's use of a crutch, and renewed his medical permits. But Dr. Carter did not follow up on Diggs's knee, and he too left the prison two months later.

         Roughly around this time, Diggs says, he repeatedly told the warden that his medical issues were being ignored. Marcus Hardy, Stateville's warden from December 2009 to December 2012, did not recall having any conversations with Diggs or seeing him use a crutch. Diggs, on the other hand, said that he told Warden Hardy on approximately five occasions that he was awaiting ACL surgery, and that Warden Hardy responded by telling him to bring the issue up with the medical department. Shortly after Dr. Carter's departure, Diggs filed an emergency grievance in which he requested surgery for his torn ACL and complained that his placement in a housing unit with stairs effectively confined him to his cell. Diggs says that Warden Hardy might have seen this grievance because the warden's office reviews all emergency grievances. The warden's office decided that his grievance was not an emergency and returned it to him four days later. Diggs then resubmitted it through the normal grievance process. Months later it was denied by the Administrative Review Board.

         In the meantime Dr. Saleh Obaisi had taken over as medical director. He assessed Diggs's knee in September 2012. Dr. Obaisi obtained Wexford's approval to refer Diggs back to UIC for follow-up. In December 2012, Dr. Mejia again examined Diggs, who still complained about knee pain and instability, and the doctor noted that Diggs had completed physical therapy and now had a normal range of motion (zero to 125 degrees). Dr. Mejia, with Dr. Obaisi's approval, then referred Diggs to another orthopedist at UIC for a surgical evaluation.

         In March 2013, Diggs saw Dr. Samuel Chmell, an orthopedist at UIC, who recommended (1) that Dr. Obaisi try to find a different hospital that had a physician who was willing to perform ACL reconstruction surgery on inmates (since the doctors at UIC would not) and (2) that Diggs receive more physical therapy for the time being. Dr. Obaisi, however, did not authorize any physical therapy. ...


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