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Cole v. Grossman

United States District Court, E.D. Wisconsin

April 25, 2018

JOSHUA E. COLE, Plaintiff,



         Joshua Cole brings this 42 U.S.C. § 1983 action against defendant Dr. Thomas Grossman, Jr., alleging that Dr. Grossman was deliberately indifferent to his medical needs in violation of the Eighth Amendment. Dr. Grossman filed a motion for summary judgment. For the reasons explained below, the motion will be granted.

         RELEVANT FACTS[1]

         Cole is a Wisconsin state inmate, currently housed at Oshkosh Correctional Institution. Between November 2015 and March 2016, Cole was housed at Waupun Correctional Institution. Dr. Grossman is an orthopedic surgeon. During 2016, he was employed by Agnesian Healthcare; about 80% of his patient population consisted of inmates referred by the Wisconsin Department of Corrections.

         In late 2010, Cole began to have difficulty flexing his right thumb. Docket # 28, ¶ 9. Cole was treated by Dr. Manlove, the DOC physician in charge of medical care at Waupun. Id. ¶ 11. Dr. Manlove referred Cole to Dr. Grossman for an orthopedic consult. Id.

         On November 11, 2015, Dr. Grossman saw Cole for the first time at the Fond du Lac Regional Clinic. Id. ¶ 13. Dr. Grossman ordered x-rays of Cole's right thumb in advance of the appointment. Id. ¶ 14. The x-rays revealed a deformity of the distal phalanx[2]of the right thumb, both at the base and at the tuff. Id. ¶ 15. Cole told Dr. Grossman that he was not able to flex the end joint of his thumb. Id. ¶ 16. Although he said that he had not injured it and that it did not hurt, he explained that it did not work very well. Id.

         Dr. Grossman examined Cole's thumb and then discussed several treatment options with him, including a thumb joint fusion. Id. ¶ 18. Dr. Grossman explained to Cole that a thumb fusion would be an elective procedure, and he discussed with Cole the potential risks of the procedure, including bleeding, infection, damage to nerves and blood vessels, scars, swelling, stiffness, an inability to relieve Cole's complaints, and a potential need for further interventions. Id. ¶ 19. Cole decided to proceed with the proposed thumb fusion and told Dr. Grossman that he had no unanswered questions. Id. ¶ 21.

         Dr. Grossman returned Cole to Dr. Manlove at Waupun for approval of the proposed procedure and the completion of a preoperative history and physical. Id. ¶ 22. Dr. Manlove obtained institutional approval for the proposed thumb fusion. Id. ¶ 23. The surgery was scheduled for March 10, 2016. Id. ¶ 24.

         On March 10, 2016, Dr. Grossman proceeded with the right thumb joint fusion. Id. ¶ 29. Based upon Dr. Grossman's experience and training as an orthopedic surgeon, as well as his knowledge of the orthopedic literature at that time, he chose to use an 18-gauge needle and 26-gauge wire and a 90/90 interosseous wiring technique in Cole's fusion surgery. Id. ¶ 30. According to Dr. Grossman, the technique and hardware that he chose to use were well-documented in the literature as a routine and usual method for small joint fusion in March 2016, and complied with the standard of care. Id. ¶ 31.

         The thumb joint procedure was completed without complication, and Cole was sent to the recovery room in good condition. Id. ¶ 32. Following surgery, Cole was discharged back to Waupun. Id. ¶ 33. Dr. Grossman's post-operative recommendations to Dr. Manlove included: “Change the dressing in 72 hours. Resplint, repad the splint. Do not let him use the right thumb at all. Change the dressing as required. Keep the wound dry. Sutures out in 14 days. See me in 14 days. I can take the sutures out if you want. Vicodin 2 [orally] every 4 hours [as needed for] pain. Call me if there are any questions.” Id.

         Dr. Grossman explains that he did not prescribe post-operative antibiotics to Cole because the medical literature and the standard of care mandated that routine post-operative antibiotics not be prescribed. Id. ¶ 36. Cole did not have any clinical signs or symptoms of infection at the time of the operation. Id. At Dr. Manlove's request, a follow-up consultation appointment was approved and scheduled. Id. ¶ 37.

         On March 30, 2016, Cole saw Dr. Grossman at the Fond du Lac Regional Clinic. Id. ¶ 38. Dr. Grossman ordered x-rays of Cole's right thumb Id. ¶ 39. The x-rays revealed a “focal discontinuity of one of the fusion cerclage wires, and slight widening of the interphalangeal joint space which suggested the presence of a joint effusion.[3]Id. ¶ 40.

         Cole told Dr. Grossman that he had been given antibiotics at Waupun and that he was performing dressing changes. Id. ¶ 41. Upon examination, Dr. Grossman noted that Cole's surgical wound showed some drainage and erythema, and, after reviewing the x-rays, he noted that one of the wires used during the procedure was broken. Id. ¶ 42. Dr. Grossman noted in his office notes that, “[I]t is conceivable that the operation has been compromised.” Id. ¶ 43.

         Dr. Grossman recommended that Cole's providers at Waupun give him the antibiotic Septra DS and damp to dry dressing changes. Id. ¶ 44. Dr. Grossman also recommended that Cole return to see him in two weeks. Id. ΒΆ 45. Dr. Grossman explains that his intention in having Cole return in two weeks was to allow the antibiotic time to resolve the infection in the thumb, at which ...

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