United States District Court, E.D. Wisconsin
SHOMAS T. WINSTON, Plaintiff,
DR. MARY SAUVEY, Defendant.
STADTMUELLER U.S. DISTRICT JUDGE.
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.
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
STANDARD OF REVIEW
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).
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
Pre-2015 Diagnoses and Treatment
was a prisoner at Green Bay Correctional Institution
(“GBCI”). (Docket #53 ¶ 1). At all times
relevant, Dr. Sauvey was employed as a physician at the GBCI.
(Docket #50 ¶ 2). As a physician, she was responsible for
providing professional medical services to inmates.
Id. ¶ 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.
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.
of the left 5th finger were taken on December 26, 2013.
Id. ¶ 12.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.
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.
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. ¶
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.
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.
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.
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. 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.
February 2015 Injury, X-Rays, and Diagnosis
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.
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.
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.
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. 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.”
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. 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.
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.
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.
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.
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).
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
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. ¶
71. Again, Winston ...