United States District Court, E.D. Wisconsin
JOSHUA E. COLE, Plaintiff,
THOMAS GROSSMAN, JR., Defendant.
DECISION AND ORDER GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
JOSEPH, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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
phalanxof 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.
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.
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.
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.
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.
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.
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.” Id. ¶ 40.
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.
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. ¶ 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