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Prisoner Education Guide

Seventh Circuit: No Summary Judgment for 11-Year ACL Surgery Denial

The Seventh Circuit Court of Appeals has vacated a summary judgment order in favor of three prison doctors and a warden who denied a prisoner ACL surgery for over a decade.

Illinois state prisoner Herbert Diggs injured his right knee in 2006. For the next three years he complained to medical staff about pain, swelling and instability – at least 14 times. Dr. Parthasarathi Ghosh, the prison’s medical director, finally ordered an MRI in July 2009. It revealed a complete tear of the ACL, one of the ligaments in the knee.

Wexford Health Sources, Inc., the private contractor that provides medical care in Illinois prisons, approved Diggs for an orthopedic follow-up at the University of Illinois-Chicago Medical Center (UIC). Diggs was seen by UIC orthopedist Dr. Alfonso Mejia in October 2009, who determined that the knee was too stiff for ACL surgery and recommended “extensive aggressive physical therapy” to make Diggs “a better preoperative candidate.” Mejia requested a follow-up appointment in four to six weeks. One month later, Wexford pre-approved the knee surgery.

Despite Dr. Mejia’s recommendation, Diggs received no physical therapy or follow-up. In February 2010, he again complained to Dr. Ghosh about continuing knee pain. Ghosh did not know why the pre-approved surgery had not occurred, and obtained approval from Wexford for a follow-up with Mejia.

During the follow-up in July 2010, Diggs told Dr. Mejia that he had not received physical therapy in the nine months since it had been recommended. Mejia noted that range of motion in the knee had deteriorated and again recommended physical therapy.

Dr. Ghosh finally referred Diggs for the therapy and he steadily improved over the next two months. By October 2010, the physical therapist recommended surgery. Ghosh initially approved that recommendation but later decided to wait until Diggs continued to complain that he was in pain.

No follow-up occurred for another two years. Dr. Imhotep Carter replaced Ghosh as the prison’s chief medical director in May 2011. Carter did not examine Diggs for nearly a year. In March 2012, he noted Diggs’ knee injury but did not order any follow up.

Marcus Hardy served as warden at the facility from December 2009 to December 2012. Diggs claimed that he told Hardy approximately five times he was awaiting ACL surgery; however, Hardy said he did not recall those conversations or seeing Diggs using a crutch.

After becoming medical director, Dr. Saleh Obaisi assessed Diggs’ knee in September 2012. Obaisi obtained Wexford’s approval for another referral to UIC for a follow-up. Dr. Mejia examined Diggs again in December 2012, found a normal range of motion and referred him to another UIC orthopedist for surgical evaluation.

In March 2013, UIC orthopedic surgeon Dr. Samuel Chmell recommended that Obaisi find a different hospital with a physician who was willing to perform ACL reconstruction surgery on prisoners, because UIC doctors would not. He also recommended that Diggs continue receiving physical therapy until the surgery was performed. Dr. Obaisi did not approve additional therapy.

Obaisi twice wrote in his treatment notes that he wanted to send Diggs back to UIC even though they had refused to evaluate him for surgery. In February 2014, Obaisi examined Diggs and again recommended that he be returned to UIC; instead, Wexford told Obaisi to find another orthopedic surgeon.

On January 5, 2015, a Wexford physician, Dr. Ritz, told Obaisi to stop presenting Diggs’ case to Wexford because no local doctor would perform the ACL surgery.

As a result, Obaisi referred Diggs to the Dreyer Medical Clinic, which had recently agreed to treat prisoners, in July 2015. In September, Dreyer orthopedist Dr. Neena Szuch examined Diggs and found he was “not an ideal candidate for ACL reconstruction.”

Diggs filed suit in federal court, alleging that Drs. Ghosh, Carter and Obaisi, as well as Warden Hardy, were deliberately indifferent to his medical needs by delaying treatment for his ACL injury. He sought an injunction compelling surgery and was appointed counsel, but the district court granted summary judgment to the defendants in January 2016, finding
“[t]he undisputed facts do not show that no minimally competent professional would have treated Plaintiff’s injury in the manner of Defendants.”

The Seventh Circuit reversed on March 13, 2017, finding the district court had “overlooked key evidence” and “glossed over key details” of the defendants’ deliberate indifference. “Because a reasonable jury could find for Diggs on his deliberate-indifference claims against Warden Hardy and Doctors Ghosh, Carter, and Obaisi,” the appellate court vacated the summary judgment order.

With respect to Hardy, the Court of Appeals wrote “[t]he district court erred in concluding that Diggs did not present enough evidence to show that Warden Hardy knew that the medical staff was mistreating him. The court disregarded Diggs’s own sworn testimony that four or five times over three years he told Warden Hardy that he was waiting on surgery and had a painful knee injury. This testimony was sufficient to show that Warden Hardy had knowledge of Diggs’s predicament. It is undisputed that Warden Hardy took no action to investigate Diggs’s complaints, other than to tell Diggs to raise them with the medical staff.”

While Diggs also attempted to raise an ineffective assistance of counsel claim related to work performed by his appointed attorney, the appellate court succinctly noted there is “no Sixth Amendment right to effective assistance of counsel in civil cases.” The suit remains pending on remand; as of the date of the Seventh Circuit’s ruling, Diggs had still not received ACL surgery. See: Diggs v. Ghosh, 850 F.3d 905 (7th Cir. 2017). 

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