October 26, 2015
from the United States District Court for the Central
District of Illinois. No. 12-CV-1307 - Jonathan E. Hawley,
Wood, Chief Judge, Bauer and Sykes, Circuit Judges.
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 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 deliberately
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 medical
professionals. Zaya now appeals.
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, summary
judgment is unwarranted. Because Zaya has provided such
evidence, we reverse and remand for further proceedings.
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
words, a broken left wrist. Dr. Sood then arranged for Zaya
to be examined by Dr. Kenneth Bussey, an off-site orthopedic
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
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.
Sood acknowledged receipt of Dr. Bussey's notes on
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 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.
filed this suit against Dr. Sood under § 1983, claiming
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 Amendment. 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 accepted that
Zaya's fractured wrist was a serious medical condition.
However, he concluded that Zaya had not produced 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.
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 reasonable jury could return a
verdict for the nonmoving party." Anderson v.
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