Sherrod v. Lingle R.N. et al

• Decision Date: 27 July 2000
• Docket Number: No. 99-3385,99-3385
• Citation: 223 F.3d 605
• Parties: (7th Cir. 2000) David Sherrod, Plaintiff-Appellant, v. Darlene Lingle, R.N.; Mary Geiger, R.N.; Betty Lorance, R.N.; C.P. Ramaswamy, M.D.; Rajendra Shroff, M.D.; Franklin Hospital District, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 605

223 F.3d 605 (7th Cir. 2000)

David Sherrod, Plaintiff-Appellant, v. Darlene Lingle, R.N.; Mary Geiger, R.N.; Betty Lorance, R.N.; C.P. Ramaswamy, M.D.; Rajendra Shroff, M.D.; Franklin Hospital District, Defendants-Appellees.

No. 99-3385

In the United States Court of Appeals For the Seventh Circuit

Argued April 5, 2000

Decided July 27, 2000

Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 97 C 63--David R. Herndon, Judge. [Copyrighted Material Omitted]

Before Manion, Kanne and Evans Circuit Judges.

Kanne, Circuit Judge.

David Sherrod suffered a ruptured appendix and related complications that required emergency surgery to remove part of his colon in 1995. He blames these problems on the medical staff at Big Muddy River Correctional Center ("BMRCC"), where Sherrod was a prisoner, and Franklin Hospital District, which operates the hospital where he was treated. Sherrod brought a three-count complaint, alleging that the prison medical staff violated his Eighth Amendment right to be free from cruel and unusual punishment and medical negligence against both the prison and hospital staffs. The district court dismissed the constitutional claim after finding that Sherrod had not shown that the prison medical staff was deliberately indifferent to his health condition. The state law negligence claims were dismissed after the court barred Sherrod's experts as a discovery sanction and found that he failed to comply with the pleading and filing requirements of Illinois law. We affirm the dismissal of the case against defendant Franklin Hospital District as time- barred but reverse dismissal of the remaining counts.

I. History

Medical care at BMRCC is provided in the Health Care Unit, which is separate from the prisoner cellblocks. The unit has an in-house nursing staff, including defendants Darlene Lingle, Mary Geiger and Betty Lorance, but no full-time resident medical doctors. Instead, the prison employs doctors to serve as medical directors and to visit the health unit on a weekly basis. In 1995, Rajendra Shroff, who was serving as the acting medical director, and C.P. Ramaswamy provided inmate medical care. Sherrod first requested medical attention on March 9, 1995, for pain in his abdomen. Sherrod was taken to the health unit in a wheelchair, examined by Lingle and given an enema, which failed to relieve the pain. Sherrod asked to be taken to a hospital, but Lingle denied the request and admitted him to the health unit for observation.

The pain continued the next day, and Sherrod again asked to be taken to the hospital. Sherrod's symptoms included right lower quadrant abdominal pain, pain on palpation and pain with eating or moving, which can be symptoms of appendicitis. Lingle and Geiger refused to send him to the hospital, but acknowledged the risk of appendicitis with the cryptic note "rule out appendicitis." It is unclear from the record whether this note indicates the nurses had ruled out appendicitis, or were instructing that tests be done to determine whether the symptoms were caused by appendicitis. The nurses communicated with Ramaswamy, who alerted them of the risk of appendicitis, but did not order Sherrod be taken to the hospital.¹

On March 11, Sherrod again complained of worsening pain in his abdomen. Geiger again noted "rule out appendicitis" but did not contact a doctor, authorize transportation to the hospital or treat Sherrod's pain. Again on March 12, Sherrod complained of pain, but was not examined by a doctor. Lorance again noted "rule out appendicitis." Sherrod was discharged from the health unit on March 13, although he continued to complain of abdominal pain and lack of bowel activity. Throughout the first several days of Sherrod's illness, his complaints of pain and other symptoms fluctuated from minimal to acute, at times corresponding to the administration of pain medication, as one might expect.

Ramaswamy visited Sherrod in his cell on March 14 to discuss an error in medication. Ramaswamy did not examine Sherrod despite his continuing complaints of abdominal pain. A prison officer ordered Sherrod taken to the health unit on March 16, apparently because his abdominal pain had become severe. Lingle and Geiger reproached the guards for bringing a patient to the health unit without permission and allegedly said there was nothing wrong with Sherrod. Sherrod was holding his side and walking bent over. There were no bowel sounds and his abdomen appeared swollen, both of which are signs of appendicitis. The nurses admitted him to the health unit, but did not contact a doctor.

On March 17, Shroff sent Sherrod to the emergency room at Franklin Hospital. Sherrod was examined by Dr. Richard O'Hair, who found a mass in the right upper quadrant of Sherrod's abdomen. O'Hair prescribed pain medication and administered the first shot of medication. O'Hair then ordered Sherrod to return for more tests on March 20 and sent Sherrod back to the prison. The next day, the pain had worsened and Sherrod could not stand up. He had an elevated temperature and diminished bowel sounds. A nurse again noted "rule out appendicitis" on Sherrod's chart. The symptoms continued on March 19, but Geiger did not contact a doctor. A nurse contacted Shroff on March 20 and reported that the symptoms continued and asked for approval to send Sherrod to the hospital. Shroff refused, despite O'Hair's order to return Sherrod to the hospital for tests, and directed that Sherrod be given Tylenol No. 3 pain medication. Shroff did not examine Sherrod.

Ramaswamy was told on March 21 that Sherrod had a fever and severe pain. He ordered an abdominal x-ray but never reviewed the x-ray report. Ramaswamy also did not order Sherrod to the hospital, despite Sherrod's symptoms and O'Hair's directions. On March 22, Sherrod was taken to Franklin Hospital and given a barium enema, which revealed a lucent defect at the ascending portion of the colon near the secum. The radiologist recommended a repeat examination. On March 23, Sherrod returned to the hospital for gall bladder and upper gastrointestinal tests. Ramaswamy told Sherrod that the results were negative and there was nothing medically wrong with him. Sherrod asked to be taken to a different hospital, but Ramaswamy refused. On March 24, Sherrod's blood pressure had dropped to 92/70 and he was stooped over in intense pain. Sherrod was taken to St. Mary's Hospital where emergency surgery was done for a ruptured appendix and a gangrenous bowel. Afterward, Lorance admitted that she knew Sherrod had been suffering from appendicitis.

In January 1997, Sherrod filed a three-count complaint in federal district court against the prison medical staff, Franklin Hospital and the hospital's medical staff. Count One of the complaint alleged, pursuant to 42 U.S.C. sec. 1983, that the prison medical staff deprived Sherrod of adequate medical care in violation of the Eighth Amendment. Counts Two and Three averred pendent state-law claims of medical malpractice against the prison doctors, O'Hair and Franklin Hospital. A physician's report and certificate of merit were attached to the complaint as required by Illinois law. The physicians and Franklin Hospital sought dismissal of the complaint on the ground that the physician's report was inadequate. On November 5, 1997, District Judge J. Phil Gilbert agreed with the defendants and dismissed Count Three with leave for Sherrod to amend, which he did on November 26, 1997, with a new physician's report. On December 5, 1997, Judge Gilbert dismissed Count Two against the prison doctors on the same ground, but without leave to amend.

On November 18, 1997, the magistrate entered a pretrial discovery order directing that all discovery be completed by June 5, 1998. The court extended that time limit to December 30, 1998, and both sides continued taking depositions through early December. There were difficulties and delays in taking the defendants' depositions, which delayed the completion of the plaintiff's experts' reports. Before the deadline, Sherrod released his list of experts to testify at trial, but did not disclose the experts' reports, believing that Rule 26(a)(2) of the Federal Rules of Civil Procedure only required disclosure of expert opinion reports ninety days before trial.

On a motion for summary judgment, District Judge David R. Herndon dismissed Count One after finding that Sherrod could not prove the prison staff had shown deliberate indifference to his medical needs. The district court also granted summary judgment on Count Three for Franklin Hospital District, finding that the allegations against the hospital did not constitute such gross negligence as to excuse the plaintiff's state-law duty to present expert testimony. Since Sherrod's experts had been barred as a discovery sanction, he could not meet the proof requirements to prevail on the malpractice claim.

II. Analysis

With judgment entered on all three counts, Sherrod appeals the grant of summary judgment on Counts One and Three, the exclusion of his medical experts that led to the judgment on Count Three and the dismissal of Count Two. We review de novo a district court's entry of summary judgment, accepting the facts in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999). Discovery sanctions for failure to comply with Rule 26(a)(2) are reviewed for abuse of discretion. See Miksis v. Howard, 106 F.3d 754, 758 (7th Cir. 1997). A court does not abuse its discretion "unless one or more of the following circumstances is present

(1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears...