United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
January 9, 2017, the defendants Agnesian Healthcare
(“Agnesian”), Dr. Thomas W. Grossman
(“Grossman”), Margaret M. Anderson
(“Anderson”), and Waupun Memorial Hospital
(“Waupun”) (Grossman and Anderson collectively
referred to as “Defendants”) filed a motion for
summary judgment. (Docket #166). On January 25, 2017, the
plaintiff David Saddy (“Saddy”) submitted a
response to the motion. (Docket #181). On February 8, 2017,
Defendants offered a reply in support of their motion.
(Docket #187). For the reasons explained below, the motion
must be denied.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides the mechanism for seeking
summary judgment. Rule 56 states 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 “genuine” dispute of material fact
is created when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court construes all facts and reasonable
inferences in a light most favorable to the non-movant.
Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). In assessing the parties'
proposed facts, the Court must not weigh the evidence or
determine witness credibility; the Seventh Circuit instructs
that “we leave those tasks to factfinders.”
Berry v. Chicago Transit Auth., 618 F.3d 688, 691
(7th Cir. 2010). Internal inconsistencies in a witness's
testimony “create an issue of credibility as to which
part of the testimony should be given the greatest weight if
credited at all.” Bank of Ill. v. Allied Signal
Safety Restraint Sys., 75 F.3d 1162, 1170 (7th Cir.
1996) (quoting Tippens v. Celotex Corp., 805 F.2d
949, 953 (11th Cir. 1986)). The non-movant “need not
match the movant witness for witness, nor persuade the court
that [their] case is convincing, [they] need only come
forward with appropriate evidence demonstrating that there is
a pending dispute of material fact.” Waldridge v.
Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
Court will provide a brief timeline of events addressing each
of Defendants' roles therein. In accordance with the
standard of review, the facts and inferences therefrom are
construed in Saddy's favor. The Court limits its
discussion to the facts necessary for disposing of the
January 2011 to January 2013, the bulk of the relevant time
period, Saddy was housed at Racine Correctional Institution
(“Racine”). Prior to 2012, he had an extensive
history of knee problems. Before seeing Grossman, Saddy had
at least four knee surgeries. Grossman, an orthopedic surgeon
working at Waupun and employed by Agnesian, performed two
knee surgeries on Saddy in July 2009 and December 2011,
respectively. In a note stemming from the 2011 surgery,
Grossman stated that he expected “residuals” from
Saddy's knee arthritis. Throughout this time, Saddy
received regular treatment to manage his knee pain.
interactions relevant to this litigation began on May 2,
2012. On that date, Saddy met with Grossman in his office.
X-rays confirmed that Saddy had degenerative changes in both
knees. Grossman discussed various treatment options with
Saddy, including another surgery, use of a cane or
wheelchair, or narcotic pain medication. They agreed on the
surgery option.The Wisconsin Department of Corrections
(“DOC”), which had ultimate custody of Saddy and
control over his medical care, approved the surgery. Grossman
performed the surgery on July 30, 2012. The surgery was
completed without apparent complications. Afterwards,
however, Saddy began making complaints of pain and
disfigurement in his knees.
September 4, 2012, Saddy went back to Grossman's office
for a follow-up visit. Saddy was not seen by Grossman, but
instead met with Anderson, a nurse practitioner who assisted
Grossman's practice. X-rays showed that the surgery
appeared successful. Anderson collaborated with Grossman to
review the X-ray results and discuss Saddy's pain
medication, but Grossman did not actually go in to see Saddy.
In meeting with Anderson, Saddy indicated that he was
concerned about taking too much medication because he was an
addict, but that he could take Tylenol. Anderson discussed
the issue with Grossman, who prescribed Saddy the maximum
allowable dose of Tylenol.
also complained about his pain and disfigurement to Anderson.
He told her that he was in pain and felt “lousy.”
(Docket #176 at 170:24-171:14). Saddy further reported that
he knees ached. Anderson examined them and found that Saddy
did not have discomfort with knee palpitation. He also
mentioned that he was having trouble sleeping due to his knee
pain. Anderson did not include all of those complaints in her
clinical note memorializing the appointment, however.
Anderson's note acknowledged Saddy's ache and
sleeping issues, but rather than relating Saddy's pain
and “lousy” feeling, Anderson indicated that he
“reports doing well.” (Docket #170-11 at 2).
Anderson's note concluded by recommending a follow-up
visit in a year. Id. Though she acknowledged that
Saddy's knees were swollen, Anderson avers that this was
normal and denies discussing knee disfigurement with Saddy at
final relevant appointment was with Grossman on October 31,
2012. Saddy states that he complained of knee pain. Grossman
did not include this information in the office note for the
visit, though Grossman contends that Saddy had no visible
displays of pain at the time. As to knee disfigurement,
X-rays were again taken. These, along with Grossman's
in-person assessment, led him to conclude that Saddy's
gait was “off.” Medically speaking, there was
“a slight 5 degree difference in valgus alignment
between Mr. Saddy's right knee and his left knee.”
(Docket #170 at ¶ 26). Defendants assert that this
“is not unexpected” and “can and does occur
in the absence of negligence, ” but at his deposition,
Grossman conceded that “[t]here's a wide range of
variation in normal knee alignment, and I was unable to come
up with literature consensus as to what was normal.”
Id. at ¶ 27; (Docket #179 at 84:14-18). It is
not clear whether the misalignment was present prior to the
July 30 surgery.
and Saddy discussed Saddy's ongoing pain treatment and
agreed on the use of an orthotic shoe apparatus. Saddy
refused to see Grossman or Anderson again after October 31,
2012. On December 14, 2012, Saddy met with the orthotic
provider. The representative noted “a considerable
amount [of] external rotation of the tibia associated with
the femur, ” and that Saddy's “toe angle is
probably about a 20 degree angle.” Saddy avers that
since the July 30, 2012 surgery his pain has been greater
than ever before. Defendants counter that pain is normal
after this type of surgery, and that Saddy has presented no
expert testimony to show that the origin of the new, more
severe pain was Grossman's latest surgery. They stress
that Saddy has had chronic, degenerative knee conditions for