Devbrow v. Kalu

• Citation: 705 F.3d 765
• Decision Date: 01 February 2013
• Docket Number: No. 12–2467.,12–2467.
• Parties: Eugene DEVBROW, Plaintiff–Appellant, v. Dr. Eke KALU, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

705 F.3d 765

Eugene DEVBROW, Plaintiff–Appellant,

v.Dr. Eke KALU, et al., Defendants–Appellees.

No. 12–2467.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 31, 2012.

Decided Feb. 1, 2013.

Samuel Mark Adams (argued), Michael K. Sutherlin, Attorneys, Sutherlin & Associates, Indianapolis, IN, for Plaintiff–Appellant.

Andrew P. Wirick, Attorney, Hume Smith Geddes Green & Simmons, LLP, Carol A. Dillon (argued), Attorney, Bleeke Dillon Crandall, PC, Roger Karl Kanne, Attorney, Zeigler, Cohen & Koch, Indianapolis, IN, for Defendants–Appellees.

Before EASTERBROOK, Chief Judge, and WILLIAMS and SYKES, Circuit Judges.

SYKES, Circuit Judge.

This case arises out of a delay by prison medical staff in ordering a prostate biopsy for a prisoner. Eugene Devbrow entered the Indiana prison system in 2000. During the intake process, he told the medical staff that he had prostate problems and would need to be tested for prostate cancer within two to four years. In February 2004 a prison doctor ordered a PSA test (for “prostate-specific antigen”), which revealed an elevated PSA, but the medical staff did not order a prostate biopsy until April 2005. In a follow-up biopsy six months later, Devbrow was diagnosed with prostate cancer, but by that time the disease had spread to his spine and treatment options were severely limited.

In October 2007 Devbrow sued two prison doctors and a prison nurse practitioner under 42 U.S.C. § 1983 for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. He alleged that their long delay in ordering a biopsy prevented the discovery of his cancer while the odds of successfully treating it were still good. The district court entered judgment for the defendants based on the two-year statute of limitations. The court construed the claim as a continuing constitutional violation that began in February 2004—when, according to Devbrow, his PSA test and prostate history showed the need for a biopsy—and ended in April 2005 when the biopsy was ordered. At that point, the court said, the defendants' deliberate indifference ceased, the cause of action accrued, and the limitations clock started ticking. Because Devbrow filed suit more than two years later, the court dismissed it as untimely.

We reverse. The statute of limitations for a § 1983 deliberate-indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause. Judged by that standard, Devbrow's suit is timely. He did not know of his injury in April 2005 when the defendants finally ordered a biopsy; he discovered it six months later when he learned he had cancer that might have been diagnosed and treated earlier but for the defendants' deliberate indifference. The limitations period runs from that discovery, and Devbrow filed suit just before the time expired.

I. Background

The following account is limited to the facts that are relevant to the statute-of-limitations question, construed in the light most favorable to Devbrow. Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir.2011); Fed.R.Civ.P. 56(a). Even before he went to prison in 2000, Devbrow knew he was at risk for prostate cancer. In 1998 a PSA test revealed elevated prostate-specific antigen levels. A follow-up biopsy was benign, but his doctor advised him to have another test in two to four years. In the meantime Devbrow was convicted of a crime and sentenced to prison by an Indiana court. When he arrived at the Pendleton Correctional Facility in May 2000, he told the intake physician about his prostate history and that his doctor recommended cancer screening within two to four years. Four years later, on February 3, 2004, a prison doctor ordered a PSA test, and the result—a PSA of 13.3 ng/mL—was significantly elevated above the level considered to be normal. Nurse Practitioner Kelley Carroll requested a urology consultation, but Dr. Eke Kalu, the Regional Medical Director for Prison Health Services, would not authorize it.

The test was repeated a week later, and again revealed an elevated PSA of 14.1. Dr. Malak Hermina examined Devbrow, found his prostate enlarged, and requested a urology consultation. Dr. Kalu again did not authorize it, but told Dr. Hermina to obtain Devbrow's outside medical records. Dr. Hermina began that process and also ordered an on-site ultrasound. Devbrow had the ultrasound in early March and met with Dr. Hermina to discuss the results. Based on the test results and his clinical examination, Dr. Hermina again recommended a urology consultation. Dr. Kalu again denied it and instead treated Devbrow for benign prostate hyperplasia.

Devbrow did not have another PSA test until a year later, on February 10, 2005, and by this time his PSA level had risen to 18.1. Dr. Hermina again requested a urology consultation and also recommended a biopsy. Devbrow was taken to the hospital to see a urologist and on April 27, 2005, had a prostate biopsy, which revealed high-grade prostatic intraepithelial neoplasia, a precursor to prostate cancer. A follow-up biopsy on September 25, 2005, confirmed that Devbrow had prostate cancer. According to Devbrow's account of the facts, which we accept at this stage and the defendants do not dispute “for purposes of the statute of limitations,” he received the cancer diagnosis on October 21, 2005. A bone scan in December revealed that the cancer had spread to Devbrow's spine and no longer was operable. Devbrow learned of the metastasis on December 16, 2005. Treatment options for metastatic prostate cancer are limited, and the ten-year survival rate is less than 15%.

On October 19, 2007, Devbrow sued Drs. Kalu and Hermina and Nurse Practitioner Carroll under § 1983 for deliberate indifference to his medical needs in violation of the Eighth Amendment. He alleged that their delay in ordering a prostate biopsy prevented the diagnosis of his cancer until after it had metastasized. Hermina and Carroll moved for summary judgment, arguing that Devbrow's suit was untimely under the two-year statute of limitations. Kalu moved to dismiss on the same ground. The district court granted the motions, holding that the limitations period commenced on April 27, 2005, when Devbrow was referred for a biopsy. At this point, the court held, the defendants ceased being indifferent to his medical needs and the statute of limitations started to run. Counting the time from that date, Devbrow's suit was six months too late. The court entered judgment for the defendants, and this appeal followed.

II. Discussion

For claims brought under § 1983, we borrow the limitations period and tolling rules applicable to personal-injury claims under state law. Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.2012). The pertinent Indiana statute of limitations is two years. Id.;Ind.Code § 34–11–2–4. Accrual rules, however, are governed by federal law “conforming in general to common-law tort principles.” Wallace v. Kato, 549 U.S. 384, 387–88, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). There is no single accrual rule for all § 1983 claims. Rather, we use the rule that applies to the common-law cause of action most similar to the kind of claim the plaintiff asserts. Id. at 388, 127 S.Ct. 1091 (drawing on the “distinctive treatment of the torts of false arrest and false imprisonment,the causes of action that provide the closest analogy to claims of the type considered here” (internal quotation marks and alterations omitted)).

The tort claim most closely analogous to a deliberate-indifference claim premised on a medical error is medical malpractice. Thus, in a recent case asserting a § 1983 claim for deliberate indifference based on the failure of prison physicians to render needed medical care to a prisoner, we applied the statute-of-limitations analysis applicable to medical-injury claims under the Federal Tort Claims Act. See Richards, 696 F.3d at 637. In Richards, as here, the plaintiff was an Indiana prisoner. Starting in January 2008, he complained to prison doctors of abdominal pain and blood in his stool, but they “assured him that he was fine.” Id. at 636. In October 2008 they finally referred him to a specialist, who promptly diagnosed ulcerative colitis. By that time, however, the only solution was to remove his lower digestive tract. In December 2010 the prisoner sued the prison physicians, and they moved to dismiss based on the two-year statute of limitations. The district court granted the motion, but we reversed. Id. at 637–38.

We began by noting that in claims brought under § 1983, “[f]ederal law defines when a claim accrues, ... and the federal rule for medical errors is that a claim accrues when a person knows his injury and its cause.” Id. at 637. For this principle we cited United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), a case involving a medical-malpractice claim brought under the Federal Tort Claims Act. Id.; see also Goodhand v. United States, 40 F.3d 209, 212–14 (7th Cir.1994) (explaining accrual rules for medical-injury claims under the Federal Tort Claims Act). Applying the rule from Kubrick, we held that the two-year limitations period commenced October 2008 when Richards was diagnosed with ulcerative colitis. At that point he knew “that he had ulcerative colitis that defendants had failed to detect, causing him to lose his lower gastrointestinal tract and anus.” Richards, 696 F.3d at 637. Accordingly, Richards illustrates that for a § 1983 claim based on medical injury arising from deliberate indifference, the relevant injury for statute-of-limitations purposes is not the intangible harm to the prisoner's constitutional rights but the physical injury caused by the defendants' indifference to the prisoner's medical needs.

The dispute in Richards, however, centered on tolling principles and pleading standards, not accrual rules; the date of accrual was uncontested. See id. at 637–38. Accordingly, our discussion of...