Joni Zaya v. Kul Sood

In the

United States Court of Appeals

For the Seventh Circuit

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No. 15-1470

JONI ZAYA,

Plaintiff-Appellant,

v.

KUL B. SOOD,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 12-CV-1307 — Jonathan E. Hawley, Judge.

____________________

ARGUED OCTOBER 26, 2015 — DECIDED SEPTEMBER 6, 2016

____________________

Before WOOD, Chief Judge, BAUER and SYKES, Circuit

Judges.

SYKES, Circuit Judge. Joni Zaya broke his wrist while he

was an inmate at the Henry Hill Correctional Center in

Galesburg, Illinois. The prison physician, Dr. Kul B. Sood,

sent Zaya to an off-site orthopedic surgeon who took x-rays,

fitted Zaya with a cast, and sent him back to the prison with

instructions that he return in three weeks for a follow-up

exam and additional x-rays. Dr. Sood didn’t follow those

2 No. 15-1470

instructions. Instead he waited nearly seven weeks to send

Zaya back to the orthopedic surgeon. By that time Zaya’s

wrist had healed at an improper angle, and two surgeries

were required to repair the defect. Zaya then filed this action

under 42 U.S.C. § 1983 claiming that Dr. Sood was deliber-

ately indifferent to his serious medical needs in violation of

the Eighth Amendment. The district court granted Dr. Sood’s

motion for summary judgment, holding that the doctor’s

decision to delay Zaya’s return to the orthopedic surgeon

constituted a mere difference of opinion between two medi-

cal professionals. Zaya now appeals.

It is well established that a difference of opinion between

two doctors is insufficient to survive summary judgment on

a deliberate-indifference claim. But when a plaintiff provides

evidence from which a reasonable jury could infer that the

defendant doctor disregarded rather than disagreed with the

course of treatment recommended by another doctor, sum-

mary judgment is unwarranted. Because Zaya has provided

such evidence, we reverse and remand for further proceed-

ings.

I. Background

On January 14, 2012, Joni Zaya, an inmate at the Henry

Hill Correctional Center, injured his left wrist while playing

soccer in the prison yard. He was immediately taken to the

health-care unit for x-rays and treatment. Two days later

Zaya was examined by Dr. Kul B. Sood, a physician and

employee of Wexford Health Services, Inc., the private

corporation that contracts with the Illinois Department of

Corrections to provide medical services to inmates at Henry

Hill. After reading Zaya’s x-rays, Dr. Sood diagnosed an

undisplaced fracture of the left distal radius—in other

No. 15-1470 3

words, a broken left wrist. Dr. Sood then arranged for Zaya

to be examined by Dr. Kenneth Bussey, an off-site orthope-

dic surgeon.

Dr. Bussey examined Zaya on January 17 and confirmed

Dr. Sood’s diagnosis. He placed Zaya in a cast and sent him

back to Henry Hill with instructions that he return for a

follow-up exam and additional x-rays in three weeks. In his

exam notes, which he forwarded to the prison, Dr. Bussey

explained why the timing of the follow-up visit was im-

portant:

I will put [Zaya] in a long-arm cast for 6 weeks.

I will see him back in 3 weeks and then get a

recheck x-ray in the cast to make sure that it is

not displaced. If it does, I could still fix it at

3 weeks rather easily. Right now he doesn’t

need surgical intervention so I will see him

back in 3 weeks.

Dr. Sood acknowledged receipt of Dr. Bussey’s notes on

January 30.

Despite Dr. Bussey’s instructions, Dr. Sood waited for

nearly seven weeks to send Zaya back for the follow-up

exam and x-rays. During that time, Dr. Sood prescribed pain

medication when Zaya complained of discomfort and at one

point modified Zaya’s cast by cutting the fiberglass. On

March 1 Dr. Sood removed the cast and x-rayed Zaya’s

wrist. The x-rays revealed that the fracture was healing at an

improper angle. At that point Dr. Sood authorized a follow-

up appointment with Dr. Bussey, who examined Zaya on

March 6 and determined that surgery would be required for

the fracture to heal properly. Zaya subsequently underwent

4 No. 15-1470

two operations: one on March 14 to re-break his wrist and

insert a metal plate, and another on August 14 to remove the

plate.

Zaya filed this suit against Dr. Sood under § 1983, claim-

ing that the more-than-three-week delay in sending him

back to Dr. Bussey amounted to deliberate indifference to his

serious medical needs in violation of the Eighth Amend-

ment. Dr. Sood moved for summary judgment, arguing that

his decision to wait the extra weeks was an exercise of

medical judgment. Dr. Sood further maintained that even if

his conduct did rise to the level of deliberate indifference, he

was entitled to qualified immunity. The district judge ac-

cepted that Zaya’s fractured wrist was a serious medical

condition. However, he concluded that Zaya had not pro-

duced evidence from which a reasonable jury could find that

Dr. Sood consciously disregarded a known risk by delaying

Zaya’s return to Dr. Bussey. Accordingly, the judge granted

Dr. Sood’s motion for summary judgment without reaching

the question of qualified immunity. This appeal followed.

II. Discussion

We review the court’s order granting summary judgment

de novo, evaluating the record in the light most favorable to

Zaya and drawing all reasonable inferences in his favor.

Burton v. Downey, 805 F.3d 776, 783 (7th Cir. 2015). Summary

judgment is warranted “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).

A dispute is “genuine” “if the evidence is such that a rea-

sonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

No. 15-1470 5

(1986). “As to materiality, the substantive law will identify

which facts are material.” Id.

The Eighth Amendment provides the substantive law in

this case. In Estelle v. Gamble, the Supreme Court held that

“deliberate indifference to serious medical needs of prison-

ers constitutes the ‘unnecessary and wanton infliction of

pain’ proscribed by the Eighth Amendment.” 429 U.S. 97,

104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976))

(citation omitted). “To state a cause of action, a plaintiff must

show (1) an objectively serious medical condition to which

(2) a state official was deliberately, that is subjectively,

indifferent.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.

2008). The parties do not dispute that a fractured wrist is an

objectively serious medical condition, so the only question is

whether a reasonable jury could conclude that Dr. Sood was

deliberately indifferent to that condition.

A. The Deliberate-Indifference Standard

Deliberate indifference requires that a defendant “knows

of and disregards an excessive risk to inmate health or

safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). The

standard is a subjective one: The defendant must know of

facts from which he could infer that a substantial risk of

serious harm exists, and he must actually draw the infer-

ence. Id. The requirement of subjective awareness stems

from the Eighth Amendment’s prohibition of cruel and

unusual punishment; “an inadvertent failure to provide ade-

quate medical care cannot be said to constitute ‘an unneces-

sary and wanton infliction of pain.’” Estelle, 429 U.S. at 105

(emphasis added). Whether a prison official was subjectively

aware of a risk “is a question of fact subject to demonstration

in the usual ways, including inference from circumstantial

6 No. 15-1470

evidence, and a factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk

was obvious.” Farmer, 511 U.S. at 842 (citation omitted).

Any inquiry into a defendant’s mental state is fraught

with difficulties, but those difficulties are often amplified

when the defendant is a medical professional. We have

consistently held that neither a difference of opinion among

medical professionals nor even admitted medical malprac-

tice is enough to establish deliberate indifference. See, e.g.,

Petties v. Carter, No. 14-2674, slip op. at 8 (7th Cir. Aug. 25,

2016) (en banc); Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.

2006); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).

However, we have also made clear that an inmate need not

show that he was “literally ignored” to prevail on a deliber-

ate-indifference claim. Conley v. Birch, 796 F.3d 742, 748 (7th

Cir. 2015) (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th

Cir. 2000)). A doctor who provides some treatment may still

be held liable if he possessed a sufficiently culpable mental state.

See Petties, slip op. at 12.

It is in this context that we have emphasized the defer-

ence owed to the professional judgment of medical person-

nel. McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013); see also

Sain v. Wood, 512 F.3d 886, 894–95 (7th Cir. 2008) (describing

the “‘professional judgment’ standard”). By definition a

treatment decision that’s based on professional judgment

cannot evince deliberate indifference because professional

judgment implies a choice of what the defendant believed to

be the best course of treatment. A doctor who claims to have

exercised professional judgment is effectively asserting that

he lacked a sufficiently culpable mental state, and if no

No. 15-1470 7

reasonable jury could discredit that claim, the doctor is

entitled to summary judgment.

But deference does not mean that a defendant automati-

cally escapes liability any time he invokes professional

judgment as the basis for a treatment decision. When the

plaintiff provides evidence from which a reasonable jury

could conclude that the defendant didn’t honestly believe his

proffered medical explanation, summary judgment is un-

warranted. See Petties, slip op. at 12. (“When a doctor says he

did not realize his treatment decisions (or lack thereof) could

cause serious harm to a plaintiff, a jury is entitled to weigh

that explanation against certain clues that the doctor did

know.”). That evidence may consist of “clues” drawn from

the context surrounding a treatment decision. Id. And if the

defendant’s chosen “course of treatment” departs radically

from “accepted professional practice,” a jury may infer from

the treatment decision itself that no exercise of professional

judgment actually occurred. Pyles v. Fahim, 771 F.3d 403, 409

(7th Cir. 2014).

B. Dr. Sood’s Decision to Delay Zaya’s Return to

Dr. Bussey

With these standards in mind, we turn to whether Zaya

has put forward enough evidence to survive summary

judgment. As we’ve noted, the parties agree that a broken

wrist is a serious medical condition. Our only concern is

Dr. Sood’s failure to comply with Dr. Bussey’s instructions

that Zaya return in three weeks for a follow-up exam and

additional x-rays. Zaya argues that Dr. Sood understood the

risks associated with delaying treatment and disregarded

those risks by waiting nearly seven weeks to authorize a

8 No. 15-1470

follow-up appointment. In support of this claim, Zaya points

to Dr. Bussey’s instructions themselves.

A jury can infer conscious disregard of a risk from a de-

fendant’s decision to ignore instructions from a specialist.

See Petties, slip op. at 9; Gil v. Reed, 381 F.3d 649, 663–64 (7th

Cir. 2004); Jones v. Simek, 193 F.3d 485, 490–91 (7th Cir. 1999).

The validity of the inference rests primarily on the contem-

poraneity of the communication and the defendant’s deci-

sion. Instructions from a specialist are evidence that the

defendant knew a particular course of treatment was rec-

ommended by at least one other medical professional at the

time the defendant chose not to provide that treatment.

Dr. Bussey went a step further than simply recommend-

ing that Zaya return within three weeks; he actually de-

scribed the risks of further delay. Dr. Bussey’s instructions

explained that any displacement of Zaya’s wrist could still

be fixed “rather easily” at the three-week mark—the clear

implication being that it would become more difficult to

correct as more time passed. Dr. Sood expressly acknowl-

edged receipt of these instructions by countersigning the

copy that was sent to Henry Hill. Given these facts, a jury

could conclude that Dr. Sood consciously disregarded the

risks associated with delaying Zaya’s return to Dr. Bussey.

See Gil, 381 F.3d at 664 (“On summary judgment, we find

that prescribing on three occasions the very medication the

specialist warned against … while simultaneously cancel-

ing … two of the three prescribed [medications] gives rise to

a genuine issue of material fact about [the defendant’s] state

of mind.”).

But Dr. Sood has offered an explanation for his decision

to wait nearly seven weeks to send Zaya back to Dr. Bussey:

No. 15-1470 9

He claims that he disagreed with Dr. Bussey’s treatment

plan. In his deposition Dr. Sood explained that he has treat-

ed over 500 fractures in his 22-year career and that he be-

lieves three weeks is too early to assess if a bone is healing

properly. According to Dr. Sood, “[y]ou need up to six to

eight weeks to find out the exact nature of the fracture.” That

explanation distinguishes this case from those in which the

defendant either gives no explanation whatsoever for his

failure to follow a specialist’s instructions, see, e.g., Jones,

193 F.3d at 490–91, or provides an explanation that’s inter-

nally inconsistent or otherwise implausible on its face, see,

e.g., Petties, slip op. at 16; Gil, 381 F.3d at 663–64. Because

Dr. Sood has provided a cogent, medical explanation for his

decision to delay follow-up treatment, Zaya must point to

some evidence that would permit a reasonable jury to reject

his explanation as a post hoc rationalization. Cf. Sain,

512 F.3d at 895 (granting summary judgment to the defend-

ant doctor because the plaintiff provided “no evidence to

show that [the doctor’s medical explanation] was a sham or

otherwise impermissible”). 1

1 This is not to suggest that courts should make credibility determina-

tions or weigh evidence on a motion for summary judgment. See Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Jackson v. Ill.

Medi–Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002). But summary judgment

does require courts to decide what inferences can justifiably be drawn

from the nonmovant’s evidence. See Liberty Lobby, 477 U.S. at 249–50 (“If

the evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.”) (citations omitted). If a defendant

provides a facially plausible medical explanation for his decision and

that explanation remains un-rebutted, the jury would have no reason to

discredit it.

10 No. 15-1470

We think that Zaya has met this requirement—though

just barely—by offering the report and deposition testimony

of Dr. Nathaniel R. Evans, his expert. Dr. Evans opined that

it was unreasonable for Dr. Sood, a general practitioner, to

disagree with instructions from Dr. Bussey, an orthopedic

surgeon who had examined and treated Zaya:

A reasonable physician, when faced with the

circumstance of a patient having been treated

by an orthopedist and having received written

request from that orthopedist to return the pa-

tient to the orthopedist in … three weeks,

would have directed that the patient be re-

turned to the orthopedist in the three week

timeframe as specified by the orthopedist. In

failing to do so, Dr. Sood deviated from the

standard of care.

From that testimony a reasonable jury could draw the

following conclusions: Most general practitioners wouldn’t

disagree with Dr. Bussey’s instructions. Dr. Sood is a general

practitioner; therefore, Dr. Sood didn’t actually disagree

with Dr. Bussey’s instructions.

Of course doctors do sometimes act unreasonably, so the

expert’s opinion is only weakly probative of Dr. Sood’s

mental state. By itself an expert’s assessment that a treatment

decision was unreasonable is not enough to establish con-

scious disregard of a known risk. See Duckworth, 532 F.3d at

681. But Zaya has offered more than that; he has provided

evidence that Dr. Sood was fully apprised of the risks asso-

ciated with delaying treatment at the time he made the

decision to do so. Given that affirmative evidence of

Dr. Sood’s mental state, the expert’s opinion is enough to

No. 15-1470 11

create a genuine factual dispute about whether Dr. Sood

actually disagreed with Dr. Bussey’s instructions or instead

simply ignored them, notwithstanding the attendant risks.

C. Qualified Immunity

Dr. Sood contends that even if a jury could find that he

consciously disregarded the risks of delaying Zaya’s return

to Dr. Bussey, he is nonetheless entitled to summary judg-

ment on qualified-immunity grounds. The Supreme Court

has held that employees of privately operated prisons may

not assert a qualified-immunity defense. See Richardson v.

McKnight, 521 U.S. 399, 412 (1997). We have construed that

holding to extend to employees of private corporations that

contract with the state to provide medical care for prison

inmates. See Currie v. Chhabra, 728 F.3d 626, 631–32 (7th Cir.

2013); see also Shields v. Ill. Dep’t of Corrs., 746 F.3d 782, 794

n.3 (7th Cir. 2014). As an employee of Wexford, a private

corporation that contracts with the Illinois Department of

Corrections, Dr. Sood asks us to reconsider our earlier

decisions.

We need not do so because even if a qualified-immunity

defense were available to Dr. Sood, he would not be entitled

to summary judgment on that basis. “The doctrine of quali-

fied immunity protects government officials ‘from liability

for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Pearson v. Calla-

han, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). Zaya’s deliberate-indifference claim

turns on Dr. Sood’s mental state, and it is well established

what the law requires in that regard. See Farmer, 511 U.S. at

837. If Dr. Sood consciously disregarded the risks of delay-

12 No. 15-1470

ing Zaya’s return to Dr. Bussey, then his conduct violates

clearly established law under the Eighth Amendment. See

Petties, slip op. at 18. As we’ve explained, that’s a question of

fact that needs to be resolved by a jury.

REVERSED AND REMANDED.