When Eugene Devbrow entered the Indiana Department of Correction (DOC) in 2000, he informed medical staff that a 1998 prostate-specific antigen (PSA) test revealed elevated levels, but a biopsy had come back benign. He further advised that his doctor said another test should be conducted in two to four years.
A PSA test conducted at Pendleton Correctional Facility on February 3, 2004 indicated that Devbrow had levels significantly elevated above normal. Nurse Practitioner Kelley Carroll requested a urology consultation, but Dr. Eke Kalu, the regional medical director for Prison Health Services, the DOC’s private medical contractor, would not authorize it. Another test was conducted a week later, showing an even higher level. Dr. Malak Hermina examined Devbrow, found his prostate enlarged, and requested a urology consult. Again, Kalu denied the request.
Another PSA test was not conducted until February 10, 2005; it showed even higher elevation levels. Devbrow was taken to a hospital on April 27, 2005 to see a urologist and have a biopsy, which revealed a precursor to cancer. A follow-up biopsy in September confirmed that Devbrow had prostate cancer, and he received that diagnosis on October 21, 2005. A subsequent bone scan on December 16 revealed the cancer had spread to his spine and was no longer operable.
Devbrow sued Kalu, Hermina and Carroll on October 19, 2007, alleging their delay in ordering a prostate biopsy prevented the diagnosis of cancer until after it had metastasized. The defendants moved to dismiss the suit as untimely under the two-year statute of limitations for personal injury actions under state law. The district court granted their motions, finding the limitations period had commenced when Devbrow was referred for a biopsy on April 27, 2005.
On appeal, the Seventh Circuit held that when a civil rights action is “based on a 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,” referencing Richards v. Mitcheff, 696 F.3d 635 (7th Cir. 2012).
A deliberate indifference claim, therefore, accrues “when the plaintiff knows of his physical injury and its cause.” While the limitations period starts when the injury and its cause are discovered, even if the full extent or severity of the injury is not known, in certain circumstances the limitations period may commence later than the date of discovery; however, it does not begin any earlier than the date of the discovery of the injury and its cause, the Court of Appeals found.
Devbrow did not learn of his cancer diagnosis until October 21, 2005, or that the cancer had metastasized until December 16. Thus, the appellate court held the expiration date for the statute of limitations was no earlier than October 21 and perhaps as late as December 16, 2005. Either way, Devbrow’s lawsuit was timely filed within the two-year limitations period.
The Seventh Circuit rejected the defendants’ position that Devbrow could have filed a suit for nominal or presumed damages earlier, even absent a physical injury; the appellate court noted that “[t]he claim asserted here involves an actual physical injury, not an abstract or intangible one.” It further held that the continuing violation doctrine, which serves to extend the statute of limitations period in certain circumstances, was not applicable.
Accordingly, the district court’s order was reversed and the case remanded for further proceedings. See: Devbrow v. Kalu, 705 F.3d 765 (7th Cir. 2013). Following remand, the district court denied the defendants’ motions for summary judgment in December 2013. The case is scheduled for trial on March 24, 2014.
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