Phillips v. Tangilag

Decision Date17 September 2021
Docket NumberNo. 20-6226,20-6226
Citation14 F.4th 524
Parties Donald R. PHILLIPS, Plaintiff-Appellant, v. Shastine TANGILAG, M.D. ; Lester Lewis, M.D.; Correct Care Solutions, LLC; Ted H. Jefferson, D.O., Angela Clifford, M.D., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Gregory A. Belzley, BELZLEY, BATHURST & BENTLEY, Prospect, Kentucky, for Appellant. James R. Coltharp, Jr., WHITLOW, ROBERTS, HOUSTON & STRAUB, PLLC, Paducah, Kentucky, for Appellee Jefferson. William E. Sharp, BLACKBURN DOMENE & BURCHETT, PLLC, Louisville, Kentucky, for Appellees Tangilag, Lewis, Clifford, and Correct Care Solutions. ON BRIEF: Gregory A. Belzley, BELZLEY, BATHURST & BENTLEY, Prospect, Kentucky, for Appellant. James R. Coltharp, Jr., WHITLOW, ROBERTS, HOUSTON & STRAUB, PLLC, Paducah, Kentucky, for Appellee Jefferson. William E. Sharp, Charles M. Rutledge, BLACKBURN DOMENE & BURCHETT, PLLC, Louisville, Kentucky, Katherine L. Kennedy, LEWIS BRISBOIS BISGAARD & SMITH LLP, Cincinnati, Ohio, for Appellees Tangilag, Lewis, Clifford, and Correct Care Solutions.

Before: SILER, THAPAR, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Donald Phillips, a Kentucky inmate, sought medical care for a painful, softball-size mass on his calf. A CT scan

showed that his "plantaris" muscle had ruptured and caused a hematoma (internal bleeding that had pooled in the calf). The plantaris sits deep in the leg, and a person does not need it to function normally. So surgery is not the standard of care for a rupture, and a hematoma typically goes away on its own. Yet Phillips alleges that the painful mass did not go away and that his doctors violated the Eighth Amendment's ban on "cruel and unusual punishments" by refusing to surgically remove it. In most states, a non-incarcerated individual generally could not succeed on this type of challenge to a doctor's professional judgment without expert medical evidence showing that the doctor behaved incompetently. And the Supreme Court has warned that the Constitution should not give prisoners an easier path to recovery than ordinary individuals have for their ordinary tort claims. Because Phillips lacks expert evidence suggesting that his doctors were grossly incompetent, we agree with the district court's rejection of his Eighth Amendment claim. Because his other claims also lack merit, we affirm.

I

Convicted of murdering two people, Phillips has been incarcerated in Kentucky prisons since 1999. In May 2014, Phillips and his cellmate got into a fight. After harassing Phillips for weeks, his cellmate stole the extension cord that Phillips used to watch television. According to Phillips, this final "straw" led to an argument followed by "blows." Phillips Dep., R.56-4, PageID 401. The cellmate gouged out Phillips's right eye, forcing Phillips to shove it back in with his palm. When Phillips countered with a hard strike from a can lid, his cellmate retreated. Phillips did not immediately realize that his left leg had been injured because his eye pain overpowered everything else. But he later told a nurse about pain and bruising around his ankle. Phillips thought he had merely sprained his ankle, and the pain and discoloration went away in a few weeks.

By November, however, Phillips had noticed a growing lump on his left calf. When the lump reached the size of a golf ball, he sent a sick-call request to medical staff. Kentucky officials have contracted with Correct Care Solutions, LLC, to provide medical care to inmates. After visiting two nurses, Phillips saw Dr. Shastine Tangilag of Correct Care Solutions. Dr. Tangilag measured the "mass" on Phillips's calf at "5 inches in diameter." Notes, R.1-5, PageID 57. This measurement comports with Phillips's belief that the mass had grown to the size of a softball.

Dr. Tangilag ordered an ultrasound. The doctor who reviewed it noted that Phillips had a "soft tissue mass" on his calf "with good blood flow" but "no definite clearcut margins[.]" Rep., R.1-5, PageID 58. Tangilag reported that these results were inconclusive and that she would schedule him for a CT scan

primarily to rule out cancer.

Phillips underwent the CT scan

at a local hospital. The doctor who read the scan found a "fluid collection" in the location of the "plantaris muscle" that "likely represent[ed] a plantaris rupture." Rep., R.1-5, PageID 62. The plantaris is a muscle behind the calf. The doctor added that he saw no evidence of a bone fracture or lesion and that the "visualized tendons and ligaments appear[ed] intact." Id.

Dr. Tangilag conveyed these findings to Phillips. In a letter, she opined that the rupture "must have been related to an old injury/trauma" and assured Phillips that it was "not cancer

or any bone lesion that you should worry about." Letter, R.1-5, PageID 64. She later told him that she would send his CT-scan results to an outside orthopedic surgeon, Dr. Ted Jefferson, "to see if this is something surgical that needs to be fixed." Notes, R.1-5, PageID 66.

Phillips saw Dr. Jefferson at his office in July 2015. Agreeing with the other doctors, Jefferson told Phillips that his plantaris had ruptured. Yet surgeons do not typically fix this rupture by surgically repairing the tendon because people do not need their plantaris to function normally. Jefferson also explained to Phillips that blood from the rupture had internally pooled between his calf and plantaris and had caused the mass on his leg. Jefferson tried to drain the fluid from this "hematoma

" but had little success because the blood had thickened. He suggested that the gelatinous blood might require surgery to remove but recommended an MRI to confirm the hematoma diagnosis.

The doctor who reviewed the MRI reported that the fluid near Phillips's plantaris had decreased slightly since the CT scan

and that "[n]o mass [was] identified." Rep., R.1-5, PageID 87. As a result, Dr. Jefferson advised Dr. Tangilag that Phillips did not need surgery because the hematoma was resolving.

Dr. Tangilag met with Phillips a final time in August 2015. She told Phillips that, after speaking with Dr. Jefferson, they had decided against the surgical route because the hematoma

was going away. Unhappy with this decision, Phillips noted that he still experienced pain when walking.

Tangilag told him to apply moist heat to his calf twice a day.

According to Phillips, the lump did not go away, and he continued to suffer pain. His leg would go numb and then throb like an impacted tooth

when he stood for substantial periods. (A dispute of fact exists over whether a visible mass remains. The most recent medical examination by Phillips's outside doctors identified "[n]o clear deformity or mass" on the leg. Rep., R.139-2, PageID 1109.)

Months after his last visit with Dr. Tangilag, Phillips sent Dr. Jefferson a letter questioning whether Tangilag had accurately described Jefferson's recommended treatment. The letter indicated that Phillips's pain had increased and that the lump had not gone away. Dr. Jefferson did not respond.

Yet Phillips did not file another sick-call request with the prison medical staff seeking additional care for the mass or his pain. Instead, in June 2016, Phillips sued Dr. Tangilag, Correct Care Solutions, Dr. Lester Lewis (the regional medical director for this entity), and Dr. Jefferson. The district court denied his request for a preliminary injunction, reasoning that he could seek follow-up care from the prison at any time.

The court's decision led Phillips to do just that. Medical staff ordered another ultrasound, which found nothing remarkable. Phillips was given pain medication and referred to physical therapy. He participated in that therapy for weeks. Although Phillips at one point found that it was "helping," Notes, R.164, PageID 2006, the physical therapist eventually discharged him because he had "plateaued" and continued to believe that he would not get better without "that surgery the one doctor said I needed," Notes, R.160-6, PageID 1311–12.

A short time later, Phillips saw a nurse for his leg. She recommended that Phillips continue pursuing physical therapy and taking pain medication "in keeping with the latest evidence based practice." Notes, R.160-8, PageID 1318. During the meeting, the nurse asked for an opinion from Dr. Angela Clifford, another doctor employed by Correct Care Solutions. Clifford reiterated that a plantaris rupture was not an injury on which surgeons operate. Although Clifford does not remember the conversation, the nurse's notes suggest that she further opined: "This happened in 2014 and if it was to be fixed it should have been done" at that time. Notes, R.160-8, PageID 1317. When Clifford made this comment, Phillips asked for her name so that he could call her as a witness (on the theory that the comment showed that he had not received proper care in 2014). According to Phillips, Clifford "went ballistic" in response, saying that "she could not abide people like" him who were just trying to get money. Phillips Dep., R.173-1, PageID 2503, 2507.

Phillips filed an amended complaint adding Dr. Clifford as a defendant. He alleged that Dr. Tangilag, Dr. Lewis, Dr. Clifford, Correct Care Solutions, and Dr. Jefferson (as well as two now-irrelevant defendants) had been deliberately indifferent to his medical needs in violation of the Eighth Amendment. He also alleged that Correct Care Solutions and its doctors had denied him care because of this suit in violation of the First Amendment. He lastly raised a state-law malpractice claim.

In a trio of decisions, the district court granted summary judgment to all defendants. Phillips v. Tangilag , 2020 WL 5665080, at *2–5 (W.D. Ky. Sept. 23, 2020) (Dr. Tangilag); Phillips v. Tangilag , 2020 WL 5413783, at *2–5 (W.D. Ky. Sept. 9, 2020) (Correct Care Solutions, Dr. Lewis, and Dr. Clifford); Phillips v. Tangilag , 2020 WL 5223310, at *2–7 (W.D. Ky. Sept. 1, 2020) (Dr. Jefferson). The court also denied Phillips's motion...

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