by Harold Hempstead

A recent decision by the U.S. Court of Appeals for the Sixth Circuit illustrates the importance of expert testimony in a prisoner’s claim he was denied constitutionally adequate medical care. In its ruling on September 17, 2021, the Court affirmed the decision of the federal court for the Western District of Kentucky, granting summary judgment to defendant employees of Correct Care Solutions, LLC (CCS), now known as Wellpath, the privately contracted health care provider for the state Department of Corrections (DOC).

The claim was brought by a DOC prisoner, Donald R. Phillips, who was incarcerated on a murder conviction in 1999. In May 2014, he injured his calf in an altercation with his cellmate, and after a lump then appeared and reached the size of a golf ball, he submitted a sick-call request to see medical staff. The lump was diagnosed as a hematoma (pool of blood), caused by a ruptured plantaris muscle.

Phillips was seen several times by different CCS/Wellpath providers, including Shastine Tangilag, M.D.; Lester Lewis, M.D.; Ted H. Jefferson, D.O.; and Angela Clifford, M.D. He underwent two ultrasounds, a CT scan, and an MRI. He was also “given pain medication and referred to physical therapy.” However, the Court noted, “Surgery is not the standard of care for a rupture[d]” plantaris, since a person does not need it to function normally, and a hematoma usually goes away on its own.

Moreover, the CT scan showed “no evidence of a bone fracture or lesion and that the ‘visualized tendons and ligaments appeared intact,’” and the MRI “showed that the hematoma was decreasing and that ‘no mass was identified.’” Thus CCS/Wellpath staff told Phillips that surgery was not needed.

Phillips contended “the lump did not go away, and he continued to suffer pain.” He filed his complaint in June 2016, accusing Defendants of deliberate indifference to his serious medical needs in violation of his Eighth Amendment guarantee to protection from cruel and unusual punishment. He also alleged he was denied medical care in retaliation for his filing of the complaint, in violation of his First Amendment rights. In addition, he raised a state-law malpractice claim and filed a motion to avoid paying $500 in expert fees.

The district court granted the Defendants summary judgment on all claims and denied Phillip’s motion to avoid paying expert fees. Phillips appealed, and the Sixth Circuit affirmed the lower court’s decision.

First, the Court noted that medical care “qualifies as ‘cruel and unusual’ only if it is ‘so grossly incompetent’ or so grossly ‘inadequate’ as to ‘shock the conscience’ or ‘be intolerable to fundamental fairness,’ citing Rhinehart v. Scott 894 F.3d 721 (6th Cir 2018), which quoted Miller v. Calhoun Cty., 408 F.3d 803 (6th Cir. 2005). That same decision held that “[f]or prisoners to prove grossly inadequate care … courts generally require them to introduce medical evidence, typically in the form of expert testimony.”

Only then, the Court continued, can the analysis of deliberate indifference proceed to its second step, which is to determine whether prison officials subjectively knew of the prisoner’s serious medical need and disregarded it, as laid out by the U.S. Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994).

Phillips couldn’t get to this step because he never completed step one, the Court said, noting that “he lacks any expert medical evidence showing that he received grossly inadequate care.” Since “undisputed evidence shows that Phillips received extensive care … [h]e thus cannot rely on his serious medical needs alone to establish the objective element of his deliberate-indifference claim,” the Court concluded, citing Anthony v. Swanson, 701 Fed. Appx. 460, (6th Cir. 2017).

In rebuttal, Phillips attempted to argue that two of the defendant CCS/Wellpath doctors agreed he needed follow-up care if the lump didn’t diminish. But the Court said that “reliance on the testimony of these two doctors has a fatal legal problem,” since “at most Phillips has shown that they caused a delay in the reassessment,” and this “type of claim (that doctors delayed care) typically requires expert medical testimony too.”

As for Philips’ retaliation claim, the Court said that it “requires a prisoner to establish three well-known elements: that the prisoner engaged in activity protected by the First Amendment, that the defendant took a harmful action against the prisoner, and that the action was caused by the prisoner’s protected activity,” citing King v. Zamiara, 680 F.3d 686 (6th Cir. 2012) and Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc). The first two elements didn’t need to be considered in Phillips’ case, the Court continued, “because [u]ndisputed evidence shows that Phillips’s lawsuit did not cause [defendant doctors] (or any other provider) to deny him care for his leg.”

The district court ordered Phillips to pay some of the fees for Defendants’ expert testimony, which he also appealed. But the Court noted that the same Federal Rule of Civil Procedure 26(b)(4)(A) that allowed Phillips to depose those experts “comes with a catch: ‘the party seeking discovery’ … generally must “pay the expert a reasonable fee for time spent in responding to discovery[.]”

Thus the district court’s order was affirmed. Phillips was represented in his case by Gregory A. Belzley of Belzley, Bathurst & Bentley of Prospect. See: Phillips v. Tangilag, Case No.: 20-6226; 14 F.4th 524 (6th Cir. 2021).

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