Absent Expert Medical Testimony, Deliberate Indifference Tough to Prove in Medical Cases
by David M. Reutter
The Eighth Circuit Court of Appeals affirmed the grant of summary judgment for the defendants in a civil rights lawsuit alleging they were deliberately indifferent to a prisoner’s serious medical needs. This case highlights the need for expert medical testimony to win in such cases.
The court’s June 7, 2021, opinion was issued in an appeal brought by Iowa prisoner Elvin Redmond. He reported on March 27, 2017, that he had a swollen and painful fifth toe on his right foot. As he has diabetes and hepatitis, he required ongoing treatment. He was examined by Nurse Practitioner Jana Hacker at the Fort Dodge Correctional Facility (FDCF). She prescribed pain medication and ordered a follow up in two days.
After she saw a blister had formed, she prescribed an antibiotic injection, a daily oral antibiotic, and a twice-a-day topical cream. After the blister opened, Redmond ran a temperature. Hacker sent him to the University of Iowa Hospitals and Clinics (UIHC) emergency room on March 31, 2017. He was evaluated and an x-ray was taken. A doctor prescribed an oral antibiotic, which a prison doctor substituted for a different antibiotic, and he was returned to FDCF the same day.
Redmond was seen by Hacker during two follow up visits. When she saw on April 7 that the wound was larger and the skin around it was changing color, she again sent him back to the hospital.
Tests were conducted and he was discharged to the Iowa Medical and Classification Center (IMCC) three days later. He was seen multiple times by Dr. Joel Kosinski at IMCC in April and May. The infection was evaluated, he was provided with medications, and it was documented that Redmond needed a toe amputation.
During that period, Redmond filed grievances about delayed orthopedic appointments. During a May 30 surgery, two toes were amputated and the surgeon found the infection had spread. It was recommended that Redmond receive a below-the-knee amputation. After a kidney infection delayed the operation, Redmond underwent surgery on May 30, 2017.
Redmond filed a civil rights action pro se alleging Eighth Amendment violations by prison and hospital doctors, and other prison officials. The court appointed counsel who apparently failed to hire expert witnesses who could testify about the standard of care. The district court granted the defendant’s motion for summary judgment. On appeal, Redmond only challenged the dismissal of claims against Hacker, Kosinski, and UIHC orthopedic surgeon Dr. Michael Wiley.
The Eighth Circuit noted that a determination whether a physician acted with deliberate indifference is a factually intensive inquiry that presents a “substantial evidentiary threshold” to show the medical providers “deliberately disregarded the inmate’s needs by administering an inadequate treatment.” Redmond, the court said, did not clear that threshold.
“He presented no medical evidence that Hacker’s actions did not meet a nurse practitioner’s standard of care or that her alleged four-day delay in transferring him back to the hospital caused his wound to deteriorate,” wrote the court. “And without expert testimony, no jury could conclude that Kosinski or Wiley made decisions that do not meet a physician’s standard of care or caused Redmond’s condition to worsen.”
At issue was the proper care for a wound in a person with diabetes and hepatitis. “The sophisticated medical question here is not within the common understanding of the jury or the court.” It is not “so obvious that a layperson would easily recognize” whether the medical provider’s actions or inactions were grossly incompetent.”
The district court’s order was affirmed. The reality is that it is virtually impossible to win a medical claim without expert testimony. See: Redmond v. Kosinski, 999 F.3d 1116 (8th Cir. 2021).