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Winston v. Sauvey

United States District Court, E.D. Wisconsin

December 29, 2016

DR. MARY SAUVEY, Defendant.



         1. INTRODUCTION

         Plaintiff Shomas Winston (“Winston”), a prisoner, brings this action pursuant to 42 U.S.C. § 1983 against Defendant Dr. Mary Sauvey (“Dr. Sauvey”), alleging that she was deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment. Specifically, Winston complains that Dr. Sauvey mis-diagnosed an injury to his finger and, based on her mis-diagnosis, she improperly treated him.

         Winston filed his second motion for summary judgment on October 12, 2016. (Docket #35). Dr. Sauvey responded with her own motion for summary judgment on November 1, 2016. (Docket #42). Both motions are fully briefed and, for the reasons stated below, the Court will grant Dr. Sauvey's motion and deny Winston's motion.


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment 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); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).


         The relevant facts are drawn from both parties' submissions. Because the Court ultimately finds that Dr. Sauvey is entitled to judgment as a matter of law, it construes the facts and inferences, where applicable, in Winston's favor.

         3.1Winston's Pre-2015 Diagnoses and Treatment

         Winston was a prisoner at Green Bay Correctional Institution (“GBCI”). (Docket #53 ¶ 1).[1] At all times relevant, Dr. Sauvey was employed as a physician at the GBCI. (Docket #50 ¶ 2).[2] As a physician, she was responsible for providing professional medical services to inmates. Id. ¶ 3.[3]In general, Dr. Sauvey attended to the medical needs of inmates, diagnosed and treated illness and injuries, and arranged for professional consultation when warranted. Id. ¶ 4.

         On December 23, 2013, Winston was seen in the Health Services Unit (“HSU”) by nursing staff for a complaint of left 5th finger injury. Id. ¶ 5. Winston stated, “I was playing basketball a couple days ago, hurt my finger. Thought it was ok, but it's still swelling up pretty big.” Id. ¶ 5. On exam, Winston presented in no acute distress with complaints of increased pain to the left 5th digit. Id. ¶ 6. The 5th finger was swollen at the area between the middle and proximal phalanx with increased tenderness and Winston was unable to bend it. Id. Based on the exam, Winston was given an order for ibuprofen to take as needed as directed, a splint for the finger to leave on as tolerated, and ice for his finger and advised to limit his activity and movement as possible. Id. ¶ 7. The nurse practitioner wrote an order at 3:00 p.m. that same day for an x-ray of the finger. Id. ¶ 8.

         X-rays of the left 5th finger were taken on December 26, 2013. Id. ¶ 12.[4]The x-rays showed no acute fracture or other abnormalities, and the conclusion was a normal x-ray examination of the left 5th digit. Id. ¶¶ 13-14. Winston was seen by nursing staff in a follow up to a Health Services request (“HSR”) dated January 2, 2014 regarding continued pain in his finger and a complaint that he had not be told the results of his recent x-rays. Id. ¶ 15. Nursing staff informed him that the results of the x-ray showed no fracture or break of the left hand 5th finger. Id. During this visit, the nurse noted that the finger remained swollen between the middle and proximal phalanx with limited range of motion, but Winston was able to bend the finger slightly with pain. Id. ¶ 16. The nurse advised Winston to continue to use the splint if it eased discomfort, to try to move the finger as tolerated, to continue the ibuprofen as directed, and made a plan to schedule an appointment for Winston with Dr. Sauvey. Id.

         On January 21, 2014, Dr. Sauvey examined the injured left 5th finger proximal interphalangeal joint (“PIP”) and noted the continued swelling and stiffness. Id. ¶ 17. She therefore injected it with a small amount of the corticosteroid Kenalog, which is injected into a joint space to treat inflammation, to help reduce swelling and stiffness in the joint, and to aid in healing and restoration of motion. Id.

         During a February 13, 2014 follow-up exam, Dr. Sauvey noted that the joint was not as sore but was still a bit swollen at the PIP joint. Id. ¶ 19. Dr. Sauvey noted that Winston's range of motion had improved, the swelling was improved, and there was minimal tenderness. Id. ¶ 20. Dr. Sauvey found that the inflammation of the PIP joint of the left 5th digit had improved, the tendons to that joint were intact, and it appeared that the kenalog injection had worked and Winston was progressing well in his rehabilitation. Id. ¶ 21. Dr. Sauvey advised Winston to continue using range-of-motion exercises and nonsteroidal anti-inflammatory drugs (“NSAIDSs”), such as ibuprofen, and to follow up or return to the rehabilitation clinic as needed. Id. ¶ 22. Dr. Sauvey ordered that he use the splint for protection if he continued participating in active sports. Id. ¶ 23.

         Dr. Sauvey followed up with Winston on May 5, 2014, and she noted that there now appeared to be a 10-degree flexion contracture of the PIP on the left 5th finger. Id. ¶ 24. A flexion contracture is when a joint is healed and fused, but bent. Id. ¶ 25. It indicates that a joint or tendon has been injured and not splinted so it stiffens and heals in a bent fashion. Id. The flexion contracture was a new finding and must have developed since the last appointment in February 2014. Id. ¶ 26.

         Although Winston did not report a re-injury to the medical staff, Dr. Sauvey avers that the flexion contracture likely occurred as a result of a re-injury to that finger. Id. ¶¶ 27-28. Dr. Sauvey informed Winston that this appeared to be an old injury, probably months old, complicated by his history of previous trauma. Id. ¶ 29. She told him that the flexion contracture could be difficult to completely reverse, but that they could try to splint the finger in a progressive fashion and perhaps achieve a bit less angulation. Id. ¶ 29. Splinting the finger at progressively lower angles would stretch the flexor tendon and soft tissues to achieve a gradual straightening. Id. ¶ 30. Straightening the finger would also help to prevent re-injury and allow Winston to buddy tape or splint during active sports more easily. Id. ¶ 31. This was a preventative measure, not a treatment course for an acute injury. Id. Dr. Sauvey avers that she contacted an orthopedic specialist, Dr. O'Brien, who confirmed that the best course of treatment was to use a splint. Id. ¶ 32.

         Winston had an appointment in the HSU on June 13, 2014, for complaints of continued left 5th finger pain with movement, and it was noted that Winston could bend the 5th finger with some pain and that the knuckle stuck out. Id. ¶ 34. The nurse noted that a splint was ordered on May 5, 2014, but could not find the splint in the HSU, so she made a plan to reorder the splint and place Winston on the list to be seen. Id. ¶ 36. She advised Winston to continue using the ibuprofen as directed for pain. Id. On June 25, 2014, Winston was seen in the HSU for a fitting of the splint. Id. ¶ 37. The small-size splint did not fit, so an extra-small splint was ordered. Id.

         Winston was again seen in the HSU on September 10, 2014, for complaints of finger swelling and pain in his left 5th finger. Id. ¶ 38. The nurse noted the following: (1) that Winston was concerned that the bone was closer to the surface of the skin; (2) that he did not feel the injection had really helped; (3) that the finger was still crooked; (4) that he experienced pain with bending the finger; and (5) that he was still playing “light ball” at recreation. Id. After this exam, the nurse contacted Dr. Sauvey, who ordered that Winston's finger splint be re-ordered and the ibuprofen extended. Id. ¶ 39. Dr. Sauvey also directed that Winston be advised not to play ball or other jarring exercises at recreation. Id. ¶ 39.[5] He was directed to rest and alert HSU staff of any major changes before his next follow up. Id. ¶ 40. He was also informed that the discoloration in the finger was not the result of the bone being close to the surface of the skin. Id.

         3.2Winston's February 2015 Injury, X-Rays, and Diagnosis

         Winston claims that on February 3, 2015, he was playing basketball during recreation time. (Docket #53 ¶ 2). During the game, he “hurt his left pinky finger, ” which became “swollen at the middle.” Id. He thereafter contacted HSU for treatment. Id.; see also (Docket #45-1 at 108) (report from November 2015 visit with physical therapist in which Winston reports that his left 5th finger injury came from playing basketball in February 2015). No contemporaneous records from the HSU or elsewhere reflect that such an injury occurred. Id. ¶¶ 48-49.

         On February 5, 2015, Winston had an appointment with Dr. Sauvey. (Docket #50 ¶ 41). Winston reported that he had continued discomfort in his left 5th finger but was not wearing the splint. Id. Dr. Sauvey found the left 5th PIP joint had improved to 5- to 7-degree flexion contracture with minimal PIP joint changes and was still a bit tender to touch. Id. ¶ 42. This led Dr. Sauvey to believe that the splinting was a successful treatment strategy. Id. ¶ 43. Dr. Sauvey believed that re-injury was a real possibility since Winston had previously reported to the nursing staff that he had continued to play active sports of the kind that had resulted in the original injury. Id. ¶ 44.

         Dr. Sauvey ordered another x-ray of the digit to rule out inflammation of the joint, among other things, as a cause of his continued joint tenderness. Id. ¶ 45. She also thought Winston might be a candidate for another Kenalog injection for inflammation as she believed he had benefitted from the earlier one. Id. ¶ 46. Pending the results of the x-ray, Dr. Sauvey directed Winston to continue to take ibuprofen or naproxen, oral anti-inflammatories, for pain. Id. ¶ 47. Winston agreed to that plan. Id.

         The x-ray ordered by Dr. Sauvey on February 5, 2015 was taken on February 12, 2015. Id. ¶ 50. The x-ray showed an age indeterminate avulsion fracture at the PIP joint of the 5th finger, which was new since December 26, 2014. Id.[6] The fact that the x-ray noted that the avulsion fracture was “age indeterminate” suggests that the fracture was old, not acute or new. Id. ¶ 51. In Winston's opinion, “‘age indeterminate' does not necessarily mean [that] the injury was older than February, 2015.” See id.

         It appeared Winston had sustained further trauma at some point, but not recently, to that finger, and Dr. Sauvey assessed him as having a tiny avulsion fracture of left 5th PIP superimposed on his residual flexion contracture based on her review of the x-ray, Winston's history, and her examination. Id. ¶ 55.[7] Avulsion or “chip” fractures represent traction injuries when a tendon pulls on chips or small pieces of bone on the edge of the finger during an acute stress or trauma, such as a “jammed” finger. Id. ¶ 53. The majority of such fractures heal over time with simple splinting, and Dr. Sauvey avers that she is not aware that they are ever treated any differently. Id. ¶ 54. For his part, Winston claims that he should have been treated with a referral to an outside orthopedic specialist. Id. To the best of Dr. Sauvey's knowledge, a certain percentage of avulsion fractures may not re-attach to the bone but do not cause pain or disability. Id.

         Dr. Sauvey claims that Winston had not been splinting the finger consistently and was still playing active sports in the intervening months. Id. ¶ 57. In her view, the avulsion fracture could have happened any time after February 2014; there was no way to accurately date it. Id. ¶ 58. Dr. Sauvey felt the fracture would likely eventually resolve, although it might be delayed if he continued to re-injure it. Id. According to Dr. Sauvey, the exact date of the avulsion fracture was only significant to the plan of care going forward because, although it was not the source of Winston's deformity, which was already long established, it reinforced the need to buddy tape or splint the finger to allow the chip to heal and to avoid re-injury. Id. ¶ 59. Winston does not dispute this opinion about the importance of the date of the fracture; he simply reiterates his view that Dr. Sauvey mis-dated it. See Id. Dr. Sauvey advised Winston again about the importance of splinting and buddy tape. Id.

         Dr. Sauvey asserts that the deformity at the PIP joint of Winston's left 5th finger did not cause a significant disability, since he reported that he was able to continue active sports. Id. ¶ 60. Winston, however, claims that his injury “prevents [him] from doing normal daily activities and exercises.” Id. Dr. Sauvey disagrees, noting that in her experience, patients with a significantly tender or actively inflamed joint would have avoided contact activities, especially activities that resulted in enough force to cause an avulsion fracture. Id. ¶ 61.

         On February 17, 2015, Winston was seen by an HSU nurse for complaints of finger pain. Id. ¶ 62. Winston claimed that he could not sleep and that ibuprofen did not relieve his pain. Id. The nurse found the left 5th finger was deformed from the flexion contracture and that there was no redness, but the mid-joint was swollen. Id. ¶ 63. Winston was able to move the finger. Id. The nurse further noted that he had the splint on during the appointment. Id. Based on the exam, she scheduled Winston for an appointment with Dr. Sauvey and made a plan to request that Dr. Sauvey change the ibuprofen to naproxen. Id. ¶ 64.

         Dr. Sauvey met with Winston next on March 16, 2015. Id. ¶ 66. She says that he reported an original “jam” injury to the left 5th finger PIP joint approximately six years prior, in 2009, and noted x-rays had been taken of the left hand and that there was evidence of re-injury and small avulsion fractures that had subsequently healed. Id. Winston argues that Dr. Sauvey mis-read the record and that his six-year-old injury was to his left 4th finger, not the left 5th finger. Id. There is, in fact, a record from 2009 showing that Winston was diagnosed with a left 4th finger avulsion fracture. (Docket #45-1 at 145).

         Dr. Sauvey claims that the record is “unclear” whether, during the March 16 visit, Winston was referring to the left 5th finger or some other finger. (Docket #50 ¶ 67). She states that the medical record shows numerous, recurrent “jam” injuries to Winston's left-hand fingers going back at least six years. Id. Winston complains that she simply got her diagnosis wrong by failing to appreciate which left-hand finger was injured and when. See Id. ¶¶ 67-69. He states that during this appointment, after being told his injury was recurrent from 2009, he informed Dr. Sauvey that he had never hurt his left 5th finger in 2009, only his left 4th finger. (Docket #53 ¶ 8); (Docket #38 ¶¶ 2-4). According to Winston, they then looked at his 2009 x-rays together and he pointed out on the x-ray that his 2009 injury was to his left 4th finger. (Docket #53 ¶¶ 8-9). She responded that she would “look into the situation.” Id. ¶ 10. In connection with this suit, Dr. Sauvey maintains that “there is noting in the medical records to indicate [that] I was looking at the wrong x-ray” during this appointment. (Docket #53 ¶¶ 33-36).

         Dr. Sauvey avers that Winston's injuries prior to May 2014 healed and resolved with conservative care and did not warrant referral for surgical or orthopedic care. (Docket #50 ¶ 69). She believes that “[t]o the extent that the medical records include a lack of clarity, it is a historical lack of clarity only and would not change [her] diagnosis of Winston's flexion contracture, nor her treatment of the flexion contracture.” Id. ¶ 70. As noted above, to Dr. Sauvey, the historical information was useful only for understanding the history of Winston's injuries to his left hand, including the fact that prior injuries did not require surgical or orthopedic care. Id. ΒΆ 71. Again, Winston ...

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