by Jacob Barrett

A recent ruling by the U.S. Court of Appeals for the Seventh Circuit highlights the importance of producing expert testimony to refute assertions made by defendant health care providers that their inaction—especially when it results in the loss of an eye—is deliberately indifferent.

The Court’s decision on December 1, 2020, affirmed a lower court’s grant of summary judgment to Wexford Health Sources, Inc., and its fellow defendants, Dr. Anthony Carter and Dr. Kurt Osmundson, on the basis that James A. Donald, an Illinois prisoner under their care, failed to produce evidence that showed that Wexford and other defendants acted with deliberate indifference toward an objectively serious medical condition.

When Donald was convicted of drug crimes and sentenced to a term at Illinois River Correctional Facility (IRCF), he had two eyes. Now he has one. Prior to his incarceration, Donald had been diagnosed with glaucoma and keratoconus, a thinning of the cornea that causes distorted vision. To treat his keratoconus, he had left-eye corneal transplant surgery.

After he was imprisoned a few years later, his eye problems started flaring up, causing redness and poor vision. Donald was seen by Dr. Carter, an IRFC medical provider, who referred the prisoner to the Illinois Eye Center (IEC) for an evaluation and a fitting for a contact lens he wore in his left eye.

At IEC, Dr. Steven Sicher, an ophthalmologist specializing in disease of the cornea, recommended no changes in Donald’s care and suggested that he continue using prescribed eye drops. Dr. Sicher also recommended that Donald see the physician who performed his corneal transplant surgery, Dr. Catharine Crockett, for “follow-up maintenance of [his] corneal transplant and keratoconus” because “continuity of care is important,” Court records recalled. Dr. Sicher further recommended that the prison continue to obtain Donald’s contact lenses. Apparently, “Dr. Sicher did not realize that part of the reason Donald had been sent to him in the first place was to obtain the prescription for those lenses.”

Upon returning to IRFC, Dr. Carter did not schedule Donald a follow-up appointment with Dr. Crockett as recommended by Dr. Sicher “because he didn’t think it was necessary.” When Donald did not receive his contact prescription, he filled out a medical request, delaying his treatment further.

A week after that, Dr. Carter claimed he attempted to contact Dr. Crockett’s office to process the order, asserting that “despite several attempts and ‘many calls and letters,’ his staff could not get a hold of Dr. Crockett,” the record continued.
Oddly, during this same period that Dr. Carter claimed he could not get a hold of Dr. Crockett, the Illinois Department of Corrections (DOC) received a letter from Dr. Crockett stressing the importance of proper treatment and medication for Donald’s corneal transplant. The letter also indicated that Donald needed a contact lens “for vision in his left eye.”

Donald’s conditioned worsened. He was examined by another physician, Dr. Pike, who diagnosed “a left-eye corneal ulcer caused by a bacterial infection.”

Donald continued to complain about a loss of vision, yellow drainage, and immense pain, all in his left eye, which nursing staff at IRFC confirmed and said also included bleeding in his eye. Nurses contacted Dr. Osmundson, who directed them to call for instructions from IEC, which in turn directed Donald immediately be transferred there and seen by Dr. Sicher, who diagnosed Donald with a rupture of the globe stating, “the corneal graft had come off and … there was a wide opening in the front of his eye with protrusion of iris and intraocular contents through the opening in the front of his eye.” Donald, the doctor said, had, “an irreversible loss of vision” that in his words “was basically a disaster.”

Consequently, Donald had to have surgery to remove his left eye. Pathological tests revealed that the infection that led to the ruptured globe was caused by “pseudomonas aeruginosa, bacteria that can act very quickly and cause perforation in as few as seventy-two hours.”

Donald filed suit in U.S. District Court for the Central District of Illinois against Dr. Carter, Dr. Osmundson, and Wexford for medical malpractice under Illinois law and under 42 U.S.C. § 1983 for deliberate indifference to a serious medical need in violation of his Eighth Amendment guarantee of protection from cruel and unusual punishment.

During discovery, the defendants jointly submitted an expert report from Dr. Lisa Nijm, an ophthalmologist and cornea specialist, who opined that, “there was appropriate monitoring and treatment of Donald’s symptoms at all times prior to his infection and that there is no connection between glaucoma (or its treatment) and the development of an ulcer.”

Donald also presented an expert, Dr. Melvin Ehrhardt, but his testimony was limited to “managing inmate care” and “coordinated care and communication within a prison setting.” He was not admitted as an expert in optometry, ophthalmology, corneal transplants, keratoconus, or corneal ulcers. Nevertheless Dr. Ehrhardt opined that Donald showed “signs of infection and graft rejection and that the defendants breached the standard of care by, among other things, failing to promptly refer Donald to a specialist and failing to provide medications on a timely basis.”

After discovery, the defendants moved for summary judgment. The district court granted the defendants’ motions with respect to the deliberate indifference claim and exercised its supplemental jurisdiction to grant summary judgment on the malpractice claim against Dr. Carter. The court relinquished jurisdiction over the remaining state-law claims against Dr. Osmundson and Wexford. Donald then filed this appeal.

In its ruling, the district court noted that “Donald did not have an objectively serious medical condition while in Dr. Carter’s care” and so it dismissed the claim “because Dr. Carter provided adequate treatment.” The court also exercised its supplemental jurisdiction to grant summary judgment in favor of Dr. Carter on Donald’s Illinois tort claim.

Donald promptly appealed to the Seventh Circuit, but that court agreed with the district court’s first conclusion. Although other courts have found that conjunctivitis alone is not a serious medical condition (See: Potter v. Deputy Att’ys Under Abraham, 304 Fed. App’x 24 (3d Cir. 2008)), the judges noted that “Donald did not have conjunctivitis alone.”

The Court held that Donald generally lacked medical testimony from a “qualified expert” to establish that he had an objectively serious condition while in Dr. Carter’s care. But it said the district court’s conclusion that Donald did not suffer “from anything other than conjunctivitis” at the relevant time “somewhat oversimplifie[d] the matter.”

The Court pointed out it was undisputed that, “since before entering prison, Donald suffered from glaucoma and keratoconus, the latter of which was treated with a corneal transplant. Add(ing) those ailments to the conjunctivitis later diagnosed” made it clear that “Donald’s eye condition was more complex than your average patient’s. And it’s possible that the combination of these afflictions created a condition serious enough to satisfy the objective requirement of a deliberate indifference claim.”

The court cited a previous but unpublished case in which it held glaucoma “is manifestly a sufficiently serious medical condition to satisfy the objective element of the deliberate indifference standard.” Keratoconus, “too, has been found to be a serious medical condition,” the Court noted, adding that “the same goes for a stable corneal transplant.”

However, the judges said they couldn’t get to the point where they could apply that law in Donald’s case because he had “marshaled no expert testimony to contradict” the evidence that Dr. Carter appropriately monitored and treated Donald’s various eye conditions. And the one expert Donald did retain, Dr. Ehrhardt, was admitted to opine only on “coordinated care and communication within a prison setting.”

As the district court had made clear, Dr. Ehrhardt was “not qualified to testify as an optometrist or ophthalmologist concerning specific eye care or conditions,” so his testimony could not support Donald’s assertions that his symptoms “were consistent with graft rejection or infection of the eye” or that Dr. Carter should have referred Donald to a “qualified corneal specialist physician in light of the complexity of his condition.”

Based on that, the Seventh Circuit concluded, the defendants’ actions in failing to properly treat Donald did not amount to “deliberate indifference to any of Donald’s conditions.” The Court further held the district court properly exercised supplemental jurisdiction over Donald’s remaining state-law malpractice claim in granting summary judgment based on the lack of expert testimony. See: Donald v. Wexford Health Sources, 982 F.3d. 451 (7th Cir. 2020). 

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