Newell v. Ngu
| Decision Date | 20 October 2014 |
| Docket Number | No. 14-1582,14-1582 |
| Parties | JAN NEWELL, Plaintiff-Appellant, v. LAWRENCE NGU, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
Before RICHARD A. POSNER, Circuit Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge
Appeal from the United States District Court for the Northern District of Illinois, Western Division.
ORDER
Jan Newell, a former inmate at Dixon Correctional Center, is a paraplegic and requires the use of a catheter. He brought this action under 42 U.S.C. § 1983 claiming that Dr. Lawrence Ngu, a past medical director at Dixon, was deliberately indifferent to his recurring urinary tract infections, which resulted from the failure to timely and properly replace his catheter. The district court entered summary judgment for Dr. Ngu, reasoning that a jury could not find from the evidence that he was responsible for changing Newell's catheter—that was the nurses' job—or that he knew that catheter replacements were being delayed. Although we conclude that there is evidence that Dr. Ngu was aware Newell's catheter was not being replaced regularly, we affirm thejudgment because a jury could not reasonably find from the evidence that Dr. Ngu was personally responsible for those delays.
Dr. Ngu worked at Dixon from 2004 to 2009 as an employee of Wexford Health Sources, Inc., first as a staff physician and then, beginning in 2005, as the medical director. As medical director, Dr. Ngu treated inmates and submitted requests to prison administrators for off-site medical care. He typically reviewed the reports of inmates' off-site treatment; if he disagreed with the off-site doctor's recommendation, he would discuss his disagreement with the inmate and with his superiors at Wexford.
Newell already was paraplegic when he arrived at Dixon in 1996 after being convicted of murder in Illinois. (He was paroled in May 2013.) Newell requires a catheter because he lacks bladder control. In 2004, Dixon medical staff switched him from an external catheter to an internal (or "indwelling") catheter to alleviate his recurring urinary tract infections. But those infections persisted, and from 2004 through 2007, Newell submitted several grievances complaining that Dixon medical staff were not timely or properly replacing his catheter.
Because of his infections and other urological problems, Newell received off-site medical treatment at the University of Illinois at Chicago Medical Center in May 2005, January 2006, June 2006, and August 2007. The treatment reports from those visits show that, after the 2005 and 2006 visits, a urologist recommended that Newell's catheter be changed monthly. The urologist also noted in the June 2006 report that Newell's catheter had been improperly placed the week before. Dr. Ngu reviewed the June 2006 report and approved the urologist's recommendation that Newell's catheter be changed monthly.
Newell filed this suit in July 2006. In his amended complaint (drafted by appointed counsel in February 2007), Newell alleged that Dr. Ngu was responsible for his medical care, that Dr. Ngu knew his health was at risk because of delayed and improper catheter changes, and that Dr. Ngu did nothing about this inadequate medical care.
In July 2013, Dr. Ngu moved for summary judgment. He argued that he was not liable for any harm resulting from the delayed replacements of Newell's catheter because the nurses at Dixon were responsible for changing catheters and he did not "supervise" the nurses or other members of the medical staff. Dr. Ngu submitted as evidence a transcript of his deposition, during which he had testified that his job was"more of an administrative position," that he did not "supervise[] the medical care provided by" other providers at Dixon, that he did not supervise the nursing staff "directly," and that, at most, he "maybe [supervised the] director of nursing, if need be." He also submitted transcripts of the depositions of other members of Dixon's medical staff: Dr. Brian LaMere, Dr. Rajender Dahiya, and physician's assistant Eva Colgan Valdez. Dr. Dahiya and Colgan Valdez both had testified that it was the nurses' job to change catheters. Colgan Valdez had testified also that the "protocol" was to wait "30 days unless directed otherwise" before changing an indwelling catheter. Finally, Dr. Ngu submitted a report from Newell's medical records showing that he had approved the urologist's June 2006 recommendation to change Newell's catheter monthly.
Newell opposed Dr. Ngu's motion on the grounds that a jury could find from the evidence that he knew the catheter wasn't being changed monthly and because he "was the healthcare official responsible for approving the location and frequency of Plaintiff's catheter changes." As evidence of Dr. Ngu's knowledge, Newell submitted his own deposition testimony and documents related to a grievance he filed in May 2007. Newell had testified at his deposition that "on numerous occasions" he told Dr. Ngu that his "catheter had to be changed because it had been too long," that Dr. Ngu responded by promising to schedule a catheter change, and that later "somebody else" told him he "wasn't scheduled" for a catheter change. In the May 2007 grievance, Newell complained that his catheter wasn't changed from December 27, 2006, to April 28, 2007, and that the nurses who finally changed the catheter had tried several times before succeeding, which resulted in bleeding. Newell requested in the grievance "that all future catheter changes be done by off-site urologists in a timely fashion." That grievance was forwarded to the healthcare administrator, who apparently replied that Newell was refusing, without basis, to allow Dixon staff to change his catheter. The grievance officer "encouraged" Newell to let the staff change his catheter and stated that a copy of the grievance would be forwarded to Dr. Ngu.
In support of his contention that Dr. Ngu was responsible for ensuring timely catheter changes, Newell pointed to Dr. Ngu's testimony that, as the medical director, his duties at Dixon were "the day-to-day management of patient care, as well as a supervisory position of medical staff, physicians, [and a] physician assistant." Newell did not provide, however, any evidence defining Dr. Ngu's supervisory duties. Newell cited his own testimony that the "nurses and doctors were all taking turns changing the catheter," as well as Dr. Ngu's testimony that catheter changes were documented by the nurse or other staff member who changed the catheter. Colgan Valdez, the physician'sassistant, also had testified that on one occasion she changed Newell's catheter and that she worked under Dr. Ngu's supervision and control. Newell also relied on Dr. LaMere's testimony that off-site treatment had to be approved by the medical director and that the medical director could override doctors' orders for catheter changes if he felt that the catheter changes were unnecessary.
Newell's evidence further included the reports from his off-site consultations in May 2005, January 2006, and June 2006 recommending that his catheter be changed monthly, and a report from June 2007 stating that Newell had received surgery to fix a narrowing of the urethra. Dr. Ngu had conceded at his deposition that his signature on the reports from June 2006 and 2007 "likely" meant that he had reviewed those reports. Newell also submitted a one-page self-prepared document titled "Chronological History of Catheter Changes," which lists the dates of his catheter changes from August 2004 through April 2009 and gives the average time between changes as "80 days (2.66 months)." But Newell submitted no evidence that Dr. Ngu did not, as he had promised, tell the staff to change the catheter or that he directed them not to do so.
Finally, Newell submitted a three-page letter from Dr. Donald Feeney, a urologist who had reviewed Newell's medical records (he does not say which ones) and concluded that he had suffered "significant and permanent reduced kidney function" as a direct result of inadequate care for his bladder condition, including the failure to change the catheter monthly. As further evidence of harm, Newell cited his own testimony that the delayed and improper catheter changes caused frequent urinary tract and other infections, pain and discomfort, resistance to antibiotics, and heart problems.
Dr. Ngu replied that he was entitled to summary judgment because Newell's evidence does not show he was "directly involved with the claimed constitutional violation." He also advanced two procedural arguments: that the district court should ignore Newell's proposed "additional facts" because his submission does not comply with Local Rule 56.1 of the Northern District of Illinois, and that the court should disregard Dr. Feeney's letter because he had not been disclosed as an expert witness, see FED. R. CIV. P. 26(a)(2). Dr. Ngu further maintained that Newell's Chronological History of Catheter Changes lacks a foundation and thus is inadmissible.
In granting summary judgment for Dr. Ngu, the district court assumed that Newell's bladder condition constituted a serious medical need but asserted that the plaintiff failed to submit any "evidence that Dr. Ngu was aware of any...
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