# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 13, 2016 *

Decided January 26, 2018

Before

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 15

‐ 2138

KELVIN NORWOOD,

Plaintiff

‐ Appellant

,

v

.

PARTHASARATHI GHOSH, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 11

‐ CV

‐ 988

Charles R. Norgle,

J udge

.

O R D E R

Plaintiff Kelvin Norwood, an Illinois prisoner, suffered from chronic right

‐ knee

pain for many years, leading to two surgeries, the second of which was a total

replacement of his right knee with an artificial joint. Norwood sued a number of

defendants, including several doctors and a physician’s assistant employed by Wexford

Health Sources, a contractor providing health care to Illinois prisoners. Suing under 42

* After examining the briefs and the record, we have concluded that oral

argument is unnecessary. Thus the appeal is submitted on the briefs and the record.

See Fed. R. App. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 15

‐ 2138 Page 2

U.S.C. § 1983, Norwood alleged that the defendants violated the Eighth Amendment

prohibition on cruel and unusual punishment by ignoring his need for treatment. As a

result, Norwood asserted, his right knee joint was damaged and his pain aggravated. He

also brought a claim of intentional infliction of emotional distress under state law and

sought an injunction that would compel Wexford and the warden at his prison to treat

his knee injury and manage his pain.

The district court recruited counsel for Norwood. Both sides took a substantial

quantity of discovery on defendants’ care or lack of care for Norwood’s knee from 2006

through 2014, when the knee was replaced. The district court granted all defendants’

motions for summary judgment, and Norwood has appealed. He now pursues his claims

only against Wexford employees Dr. Parthasarathi Ghosh and Physician’s Assistant

LaTanya Williams.

Because we are reviewing a grant of summary judgment, we must view the

evidence and factual disputes in the light reasonably most favorable to Norwood as the

non

‐ moving party. E.g., Rasho v. Elyea

, 856 F.3d 469, 475 (7th Cir. 2017). We therefore do

not vouch for the objective accuracy of all factual assertions. But viewing the evidence

through the proper summary judgment lens, we must assume that Norwood has been

the victim of serious institutional neglect of, and perhaps indifference to, his serious

medical needs over at least eight years. Despite that evidence, this case illustrates the

difficulties that prisoners often encounter both in obtaining at least minimally adequate

health care and in seeking damages for inadequate medical care.

The first problem Norwood faces is that the remedial system of legal doctrines that

has been built upon 42 U.S.C. § 1983 focuses primarily on individual responsibility. To

avoid summary judgment, Norwood needed to come forward with evidence that would

allow a reasonable jury to find that Dr. Ghosh or P.A. Williams was, as an individual,

deliberately indifferent to his serious medical needs. Our de novo review of the evidence

convinces us that he has not met that burden.

As we detail below, the evidence would allow a jury to find that Norwood suffered

from serious medical needs in the form of diseases in and injuries to his right knee,

causing significant pain and restricting his ability to walk, exercise, move, and even sleep.

Between a right

‐ knee injury in 2006 and full knee

‐ replacement surgery in 2014, Norwood

encountered, we must assume, repeated delays in medical treatment, inadequate pain

treatment, and failures to deliver medication and other treatments ordered by the

prison’s medical staff. A major problem for Norwood in this lawsuit is that responsibility

for his medical care has been diffused so widely that he has not been able to offer evidenceNo. 15

‐ 2138 Page 3

sufficient to support a finding that either Dr. Ghosh or P.A. Williams was deliberately

indifferent to his or her individual responsibilities for his care.

In Shields v. Illinois Dep’t of Corrections

, 746 F.3d 782 (7th Cir. 2014), we addressed

a similar problem and ultimately affirmed summary judgment for the individual medical

care providers. We also affirmed summary judgment for Wexford Health Sources, the

same company that contracted to provide health care to Norwood in this case. As we

explained in Shields

, controlling precedent in this circuit held then (and it still holds now)

that a corporate entity like Wexford cannot be held liable under § 1983 for a constitutional

violation caused by its employee unless a plaintiff can show the violation was caused by

a corporate policy, custom, or practice within the meaning of Monell v. Department of Social

Services

, 436 U.S. 658, 694 (1978). In Shields

, we discussed at length whether we should

revisit that issue. Ultimately we did not change circuit law on that point in Shields

, but

we invited fresh litigation of the issue. 746 F.3d at 790–96. Wexford was a defendant in

the district court here, but Norwood and his counsel in the district court did not raise that

issue in the district court, nor has Norwood done so in this pro se appeal. We do not

consider it here.

The second major problem for Norwood’s lawsuit is the difference between

deliberate indifference under the Eighth Amendment and medical malpractice. Norwood

received some treatment for his knee pain throughout the eight years covered by his

lawsuit. When a prisoner receives some treatment, it can be difficult to prove a medical

professional acted with deliberate indifference. E.g., Whiting v. Wexford Health Sources,

Inc.

, 839 F.3d 658, 662 (7th Cir. 2016). When a medical professional persists in a course of

treatment known to be ineffective or that departs so far from accepted professional

judgment, practice or standards as to support an inference that the decision was not

actually based on even a mistaken professional judgment, a judge or jury can infer

deliberate indifference. Id

., quoting Petties v. Carter

, 836 F.3d 722, 730 (7th Cir. 2016) (en

banc). In this case, Norwood’s evidence might well support one or more malpractice

claims, but we agree with the district court that his evidence does not support an

inference of deliberate indifference.

I. Factual and Procedural Background

Before he was imprisoned in 1999, Norwood had surgery on his right knee. In May

2006, he went to the infirmary at Stateville Correctional Center complaining of pain in his

right knee after a fall. (The defendants note that Norwood’s medical records from 2006

refer to his left knee, but on summary judgment we must accept Norwood’s testimony

that he actually injured his right knee.) Medical staff noted swelling, tenderness, and

reduced range of motion and diagnosed a sprained knee. Two weeks laterNo. 15

‐ 2138 Page 4

Dr. Andrew Tilden examined Norwood. He ordered an X

‐ ray and prescribed Motrin and

an elastic knee bandage. Dr. Tilden refilled the Motrin prescription and reexamined

Norwood’s knee a few weeks later, this time seeing no swelling and noting that Norwood

had a full range of motion.

Four months later, in November 2006, Norwood saw P.A. Williams and

complained of continuing pain in his right knee. He also reported that he had not had the

X

‐ ray ordered by Dr. Tilden. P.A. Williams assessed crepitus (friction between bone and

cartilage) in that knee and reduced range of motion caused by pain. She reordered the X

‐

ray, prescribed an elastic knee support, and referred Norwood for evaluation by

Dr. Ghosh, the medical director. Norwood’s medical records do not reflect a visit with

Dr. Ghosh or an X

‐ ray of his knee in the wake of P.A. Williams’ orders and referral.

Ten months later, in September 2007, Norwood returned to the infirmary

complaining of increased knee pain. He reported feeling a popping in his right knee and

said that his elastic knee supports had been confiscated by prison staff during a

“shakedown” several months earlier. P.A. Williams examined Norwood and again noted

crepitus, swelling, tenderness, reduced range of motion, and decreased strength in his

right knee. She reordered elastic supports for both knees and again referred Norwood to

Dr. Ghosh. Yet again, Norwood did not see Dr. Ghosh in the wake of that referral (or after

P.A. Williams had made yet another referral a year later). And despite repeated

complaints to P.A. Williams and a different staff member over the next three months,

Norwood never did receive the knee supports.

On July 9, 2009—a full 32 months after his initial visit with P.A. Williams—

Norwood returned to the infirmary reporting that his right knee had “popped” after he

fell out of his bunk. He also reported pain. Once more P.A. Williams examined him. This

time she noted that Norwood was limping, his right knee was swollen and tender, and

he had reduced strength and range of motion in that knee. P.A. Williams prescribed a

lower bunk, a food “lay

‐ in,” and ice and heat for the knee. She also referred Norwood to

Dr. Ghosh yet again, anticipating a possible torn medial collateral ligament (MCL) or

anterior cruciate ligament (ACL). That appointment was made for a week later.

This time, Norwood actually saw Dr. Ghosh, seven days later on July 16, 2009. Dr.

Ghosh then asked Wexford to authorize an MRI. That request was approved, and an MRI

was performed of Norwood’s right knee in September 2009. The MRI confirmed a lateral

meniscal tear, a full

‐ thickness cartilage defect, effusion (fluid in the joint), and a partially

ruptured cyst. Dr. Ghosh then obtained approval from Wexford to have Norwood

evaluated by an orthopedic surgeon.No. 15

‐ 2138 Page 5

Norwood saw the outside orthopedic surgeon, Dr. Samuel Chmell, on

November 23, 2010. Dr. Chmell noted that Norwood had complained for years of chronic

knee pain, and he concluded that surgery was necessary. Surgery was initially scheduled

for January 5, 2010, then delayed to March 30, and then again to April 27, when Dr.

Chmell actually performed it. (There is no evidence that Dr. Ghosh or P.A. Williams was

responsible for the delays in surgery.) During the surgery, Dr. Chmell found that

Norwood did not have a torn meniscus, but he found cartilage damage at the end of the

thigh bone and extensive inflammation of the lining of the knee. Dr. Chmell removed the

inflammation and smoothed out the roughened cartilage.

After the surgery Dr. Chmell prescribed Vicodin “as needed” for pain. He also

instructed Norwood to work on improving the range of motion of his knee and scheduled

a follow

‐ up evaluation for one week later. Norwood returned to the prison on the same

day as the surgery and was admitted to the infirmary. Dr. Ghosh prescribed Tylenol 3

(with codeine) instead of Vicodin, and Norwood received that medicine. When

Dr. Ghosh examined him the next morning, Norwood said that he wanted to be

discharged from the infirmary. Because Norwood would not be permitted to take

narcotic pain medication into the cell block, says Dr. Ghosh, he prescribed Motrin and

crutches. Norwood says, though, that he was never actually given any pain medication

after he left the infirmary, at least in those days after the surgery.

When Norwood returned for his follow

‐ up visit with Dr. Chmell in early

May 2010, he reported that he had not been allowed to take Vicodin and was experiencing

discomfort in his knee. Dr. Chmell ordered Tramadol for pain and advised Norwood that

the crutches were unnecessary. Dr. Chmell also requested that Norwood return in six

months or sooner if needed. When Norwood returned to the prison, Dr. Ghosh

prescribed Tramadol, which Norwood received for seven days before resuming Motrin.

Dr. Ghosh never authorized the return visit to Dr. Chmell.

Norwood was next seen by P.A. Williams in July 2010. He complained that his

right knee was painful and was swelling and “locking up” when he walked. Williams

increased Norwood’s dosage of Motrin and referred him to Dr. Ghosh for further

evaluation. A week later Dr. Ghosh examined Norwood, noting that he complained of

recurrent knee swelling and instability and had a reduced range of motion. Dr. Ghosh

ordered physical therapy, which Norwood began attending once each week. Over the

next five months, Norwood continued to report pain, instability, and reduced range of

motion in his right knee. The physical therapist opined on more than one occasion that

Norwood’s progress was slow because he was attending only once per week. NorwoodNo. 15

‐ 2138 Page 6

saw Dr. Ghosh one more time in February 2011 and continued to complain of knee pain.

Dr. Ghosh concluded only that Norwood should continue physical therapy.

Throughout 2011 Norwood continued complaining of problems with his right

knee. In January 2012 the new prison medical director, Dr. Saleh Obaisi, sent Norwood

back to Dr. Chmell, who ordered an X

‐ ray and more physical therapy. After another

examination near the end of 2012, Dr. Chmell diagnosed Norwood with osteoarthritis,

gave him a cortisone injection, and ordered continued physical therapy. Then in

September 2014, after Norwood’s condition still had not improved, Dr. Chmell

performed a complete knee replacement. Norwood continues to complain that the

physical therapy and pain medication that he is receiving are inadequate, and that as a

result, he is in constant pain and must walk with a crutch.

Meanwhile, Norwood had filed this action in February 2011. He claimed that, after

his fall in 2006, Dr. Ghosh and P.A. Williams had been deliberately indifferent to his knee

injury, resulting in ongoing pain and damage to his knee. As the litigation progressed,

Norwood revised his claim of deliberate indifference to allege that the defendants’

inaction had prompted his two knee surgeries and that he still was not receiving adequate

medical care after his knee replacement. The defendants have not argued that Norwood’s

claims were untimely, even in part. The defendants moved for summary judgment on the

merits of Norwood’s claims.

In ruling against Norwood, the district court reasoned that P.A. Williams had

prescribed numerous treatments beginning in 2006 after Norwood reported his first fall.

P.A. Williams’ failures to follow up on the treatments she had ordered, such as delays in

delivering knee braces and losing them to security searches, the court reasoned, did not

amount to deliberate indifference because it was not evident that P.A. Williams was

responsible for such follow

‐ up, let alone that she acted or failed to act with deliberate

indifference to Norwood’s medical needs. The court also found that Norwood lacked

evidence that Dr. Ghosh had caused the delay before Norwood’s first knee surgery. The

court added that Ghosh’s decision to prescribe Tylenol 3 with codeine instead of Vicodin

had not amounted to deliberate indifference but instead was an exercise in professional

judgment. The court also rejected Norwood’s request for injunctive relief, concluding that

he was receiving adequate care for his knee after the replacement. Finally, the district

court declined to exercise jurisdiction over Norwood’s state

‐ law claim for intentional

infliction of emotional distress.No. 15

‐ 2138 Page 7

II. Analysis

A. Claims Against Dr. Ghosh

We start with the claims against Dr. Ghosh, whose care Norwood criticizes only

as to isolated events. For one, Norwood theorized that Dr. Ghosh was deliberately

indifferent because his first surgery was delayed four months after the originally

scheduled date. We agree with the district court, however, that a jury could not hold Dr.

Ghosh responsible for those delays. The record shows that Dr. Ghosh saw Norwood a

week after P.A. Williams referred him, in July 2009, promptly requested an MRI, and

referred Norwood for evaluation and ultimately surgery by an outside specialist. There

were substantial delays along the way—nine months from Dr. Ghosh’s examination in

July 2009 until surgery in April 2010.

A delay in providing treatment that causes needless suffering can support a claim

of deliberate indifference. See Roe v. Elyea

, 631 F.3d 843, 865 (7th Cir. 2011); Berry v.

Peterman

, 604 F.3d 435, 441 (7th Cir. 2010). On this record, though, these delays look like

features of the Wexford system of health care rather than anything Dr. Ghosh controlled.

See Walker v. Benjamin

, 293 F.3d 1030, 1038 (7th Cir. 2002) (explaining that deliberate

indifference can result only when delay in care was in control of defendant).

We also agree with the district court that a jury could not reasonably find that Dr.

Ghosh was deliberately indifferent in not prescribing stronger pain medication during

the four

‐ month delay before surgery. Norwood’s medical records show that he was not

evaluated by Dr. Ghosh in the months after his appointment with Dr. Chmell, and there

is no evidence that Norwood complained to any medical staff member that his pain

medication was ineffective. See Farmer v. Brennan

, 511 U.S. 825, 837 (1994) (explaining

that defendant must have been subjectively aware of risk of serious harm for deliberate

indifference to serious medical need); Rice v. Correctional Medical Servs.

, 675 F.3d 650, 665

(7th Cir. 2012) (same)

.

Norwood also argues that Dr. Ghosh showed deliberate indifference to his pain

by prescribing Tylenol 3 with codeine instead of Vicodin after the 2010 surgery. The

district court correctly reasoned that Dr. Ghosh’s decision to substitute Tylenol 3 with

codeine for Vicodin was a matter of medical judgment, and nothing in the record suggests

it was against professional standards of care. See Holloway v. Delaware County Sheriff

, 700

F.3d 1063, 1074 (7th Cir. 2012) (affirming summary judgment for jail physician who

exercised professional judgment in substituting non

‐ opioid pain medication for detainees

prior opioid pain medication, and who added medications to address opioid withdrawal

symptoms)

. Vicodin is a mixture of acetaminophen (the same drug in Tylenol) and

hydrocodone. While codeine is less potent than hydrocodone, both medications areNo. 15

‐ 2138 Page 8

opioid pain relievers. Dr. Ghosh explained that the Stateville pharmacy did not stock

Vicodin and that Tylenol 3 with codeine is an acceptable alternative. Norwood offers no

evidence indicating that Dr. Ghosh’s view was so far outside the bounds of professional

judgment that a jury could infer that he did not actually exercise his professional

judgment. See, e.g., McGee v. Adams

, 721 F.3d 474, 481 (7th Cir. 2013). Norwood counters

that he never actually received even the Tylenol 3 with codeine that Dr. Ghosh prescribed.

As troubling as that evidence is, the question of individual responsibility takes center

stage again. No evidence actually shows that Dr. Ghosh knew that Norwood did not

receive the prescribed pain medication.

Finally, Norwood complains about Dr. Ghosh’s decision to switch his medication

to Motrin the day after his surgery. Dr. Ghosh explained that he made this switch because

the Tylenol 3 with codeine, as an opioid medication, could not be administered in the cell

block. This explanation might seem troubling because Dr. Ghosh did not say why

Norwood could not keep taking Tylenol 3 with codeine by returning to the infirmary

each day so that the medication could be administered there, or why Tramadol—the

medication Dr. Ghosh later prescribed after Norwood’s follow

‐ up visit with Dr. Chmell—

was not an appropriate substitute. But again, there is no evidence that Norwood told Dr.

Ghosh that he had significant pain during the six days he was supposed to be taking only

Motrin, and Dr. Ghosh then prescribed the stronger medication Tramadol at the request

of Dr. Chmell after the post

‐ surgery appointment. We affirm summary judgment in favor

of Dr. Ghosh.

B. Claims Against P.A. Williams

The district court found that a jury could not find that P.A. Williams was

deliberately indifferent in failing to follow through on the treatments she ordered. She re

‐

ordered an X

‐ ray in November 2006 and prescribed Motrin and an elastic knee support,

and referred Norwood to Dr. Ghosh. Norwood apparently got the Motrin and the elastic

knee support, but not the X

‐ ray or the visit with Dr. Ghosh. We cannot say that the partial

follow

‐ through would support an inference of deliberate indifference. As a physician’s

assistant, Williams was not in a position to order Dr. Ghosh or any other prison doctor to

see Norwood. 1

1 We are aware of the tension inherent in affirming summary judgment for Dr.

Ghosh on the ground that he did not actually see Norwood, despite P.A. Williams’

referrals, and affirming summary judgment for Williams on the ground that she was not

responsible for ensuring that Dr. Ghosh actually saw Norwood after her referrals. Under

a regime of enterprise liability, as discussed in Shields

, 746 F.3d at 790–96, this would notNo. 15

‐ 2138 Page 9

Next, in September 2007, Norwood complained of increased pain and said his

elastic knee supports had been confiscated several months earlier. P.A. Williams again

ordered new knee supports, continued the Motrin, and again referred Norwood to Dr.

Ghosh. Norwood was not satisfied with the pain treatment he was receiving, but we do

not see a basis for finding that P.A. Williams’ failure to treat his pain more aggressively

amounted to deliberate indifference. See, e.g., Holloway

, 700 F.3d at 1073–75 (affirming

summary judgment for doctor who took detainee off of opioid pain medicine and

prescribed less potent pain medicines); see also Pyles v. Fahim

, 771 F.3d 403, 411 (7th Cir.

2014) (affirming summary judgment for prison doctor based on pain treatment). We

should not be understood as saying that ineffective pain treatment is always immune

from Eighth Amendment scrutiny or liability. See Holloway

, 700 F.3d at 1073–74; Arnett v.

Webster

, 658 F.3d 742, 753–54 (7th Cir. 2011) (collecting cases); Gil v. Reed

, 381 F.3d 649

(7th Cir. 2004) (reversing summary judgment for prison physician who prescribed

Tylenol 3 with codeine to inmate after surgery without justification and against surgeon’s

orders not do so because of side effects). But treating pain allows considerable room for

professional judgment. Medical professionals cannot guarantee pain

‐ free lives for their

patients. We do not have specific evidence that P.A. Williams persisted in a course of pain

treatment that was obviously inadequate.

Norwood also argues, in addition to the failure to treat his pain adequately, that

P.A. Williams’ (and Dr. Ghosh’s) failure to provide more effective treatment from 2006

until steps were taken in the latter half of 2009 toward the first surgery caused his knee

to deteriorate. In cases of delayed medical treatment for a prisoner, unnecessary pain may

violate the Eighth Amendment, as we have discussed. Where deliberate indifference

causes the delay and the delay aggravates the underlying condition, that additional

injury may also be compensable. See Jackson v. Pollion

, 733 F.3d 786, 790 (7th Cir. 2013)

(explaining that delay in treatment, rather than underlying injury, must cause “some

degree of harm”); Williams v. Liefer

, 491 F.3d 710, 714–15 (7th Cir. 2007) (claim for delay

causing injury requires plaintiff to offer “verifying medical evidence” that the delay

rather than underlying condition caused some degree of harm).

be an issue, but under the requirement of individual responsibility, it is critical. The

evidence here does not show where the breakdown in communication occurred, nor has

there been an attack on Wexford’s failure to ensure that individual medical professionals’

orders and referrals were carried out. Cf. Glisson v. Indiana Dep’t of Correction

, 849 F.3d

372 (7th Cir. 2017) (en banc) (reversing summary judgment for corporate defendant;

Monell liability could be based on evidence that corporation decided not to require

coordination of care in complex case).No. 15

‐ 2138 Page 10

Dr. Chmell testified that the injuries he repaired in Norwood’s right knee in 2009

could have been the result of a fall—as opposed to normal wear and tear—and that the

failure to treat those injuries more promptly could have resulted in the osteoarthritis that

later forced Norwood to undergo a full knee replacement. Dr. Chmell also testified that

he had no opinion on Norwood’s medical treatment at Stateville. In this sort of case,

“could have” is not enough. The mere possibility that delays in treating Norwood’s knee

contributed to permanent damage falls short of verifying medical evidence that would

allow a reasonable jury to find by a preponderance of the evidence that such causation

actually occurred.

P.A. Williams also argues that it was the job of the medical technician to read and

review her notes, to ensure that Norwood received the knee supports from central

supply, and to ensure that Norwood saw Dr. Ghosh. P.A. Williams could rely on other

medical personnel to carry out her directives, see Minix v. Canarecci

, 597 F.3d 824, 834 (7th

Cir. 2010), though she could not turn a blind eye if it was obvious to her that other staff

members were not following through on her orders. See, e.g., Matthews v. City of East St.

Louis

, 675 F.3d 703, 708 (7th Cir. 2012); Knight v. Wiseman

, 590 F.3d 458, 462–63 (7th Cir.

2009)

. The record here might support a claim that P.A. Williams was negligent in failing

to supervise the follow

‐ through on her orders better, but we do not see a basis for finding

that her actions (or failures to act) amounted to deliberate indifference. The district court

properly granted summary judgment for P.A. Williams on Norwood’s Eighth

Amendment claims.

Finally, after dismissing all of Norwood’s federal claims, the district court declined

to exercise jurisdiction over his state

‐ law claim for intentional infliction of emotional

distress. That was an appropriate exercise of the district judge’s discretion under 28

U.S.C. § 1367.

The judgment of the district court is AFFIRMED.