Jackson v. Pollion, No. 12-2682 (7th Cir. 2013)

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An Illinois inmate sued under 42 U.S.C. 1983, claiming that a nurse practitioner and a correctional counselor were deliberately indifferent to his serious medical condition, hypertension (high blood pressure). He had been diagnosed in 2007 at age 22 and did not receive his prescribed medication for a three-week period in 2009. The district judge dismissed, reasoning that the nurse practitioner did not know that plaintiff was not receiving his medication and the correctional counselor, not a member of the prison’s medical staff, assumed the medical staff would deal with it. The Seventh Circuit affirmed after criticizing the failure, by the court and lawyers, to use scientific resources to determine the effect on the plaintiff’s health of a temporary interruption in the medication. “The legal profession must get over its fear and loathing of science.” The court also noted “that this plainly meritless suit was filed … more than four years ago. … A stronger judicial hand on the tiller could have saved a good deal of time, effort, and paper.”

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 12 2682 MAURICE A. JACKSON, Plaintiff Appellant, v. RASHONDA POLLION, et al., Defendants Appellees. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 09 cv 688 J. Phil Gilbert, Judge. ____________________ ARGUED OCTOBER 8, 2013 DECIDED OCTOBER 28, 2013 ____________________ Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. The plaintiff, an inmate of an Illi nois prison, has sued, under 42 U.S.C. § 1983 the ubiqui tous federal constitutional tort statute a nurse practitioner and a correctional counselor both of whom work at the pris on. He accuses them of having been deliberately indifferent to his serious medical condition hypertension (high blood pressure) for which he was not receiving his prescribed medication. They thus were guilty, he charges, of inflicting 2 No. 12 2682 cruel and unusual punishment on him. The district judge granted summary judgment in favor of the defendants and dismissed the suit. The judge s ground, so clearly correct as not to require elaboration by us, is that neither defendant was deliberately indifferent to the plaintiff s condition: the nurse practitioner didn t know the plaintiff wasn t receiving his medication and the correctional counselor, who is not a member of the prison s medical staff, though he knew about the plaintiff s problem assumed the medical staff would deal with it. In failing to ascertain whether the medical staff was dealing effectively with the problem, the correctional coun selor was at worst negligent, rather than deliberately indif ferent (that is, reckless knowing there was a serious risk unless he acted, yet failing to act; see Farmer v. Brennan, 511 U.S. 825, 836 37 (1994)). What is troubling about the case is not its disposition but that both the district judge, and the magistrate judge whose recommendation to grant summary judgment the district judge accepted, believed that Jackson can present evidence permitting a reasonable inference that he had experienced a serious medical condition as a consequence of the interrup tion of his medication. This is mistaken, and (not surprising ly) has no support in the record. But it is not only repeated in the plaintiff s brief in this court, as one would expect; it is largely ignored by the defendants. This lapse is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or oth er technological issue. As a general matter, lawyers and sci ence don t mix. Peter Lee, Patent Law and the Two Cul tures, 120 Yale L.J. 2, 4 (2010); see also Association for Molecu No. 12 2682 3 lar Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2120 (2013) (Scalia, J., concurring in part and concurring in the judgment) ( I join the judgment of the Court, and all of its opinion except Part I A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief ); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 599 (1993) (Rehnquist, C.J., concurring in part and dissenting in part) ( the various briefs filed in this case ¦ deal with definitions of scientific knowledge, scientific method, scientific validity, and peer review in short, mat ters far afield from the expertise of judges ); Marconi Wireless Telegraph Co. of America v. United States, 320 U.S. 1, 60 61 (1943) (Frankfurter, J., dissenting in part) ( it is an old obser vation that the training of Anglo American judges ill fits them to discharge the duties cast upon them by patent legis lation ); Parke Davis & Co. v. H.K. Mulford Co., 189 F. 95, 115 (S.D.N.Y. 1911) (Hand, J.) ( I cannot stop without calling at tention to the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of chemistry to pass upon such questions as these. ¦ How long we shall continue to blunder along with out the aid of unpartisan and authoritative scientific assis tance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such ad vance ); Henry J. Friendly, Federal Jurisdiction: A General View 157 (1973) ( I am unable to perceive why we should not in sist on the same level of scientific understanding on the pa tent bench that clients demand of the patent bar, or why lack of such understanding by the judge should be deemed a precious asset ); David L. Faigman, Legal Alchemy: The Use 4 No. 12 2682 and Misuse of Science in Law xi (1999) ( the average lawyer is not merely ignorant of science, he or she has an affirmative aversion to it ). The discomfort of the legal profession, including the ju diciary, with science and technology is not a new phenome non. Innumerable are the lawyers who explain that they picked law over a technical field because they have a math block law students as a group, seem peculiarly averse to math and science. David L. Faigman, et al., Modern Scientific Evidence: Standards, Statistics, and Research Methods v (2008 student ed.). But it s increasingly concerning, because of the extraordinary rate of scientific and other technological ad vances that figure increasingly in litigation. In 2007 the plaintiff, who was then 22 years old and serv ing a 40 year sentence for first degree murder, was diag nosed with hypertension. The drugs hydrochlorothiazide (25 mg a low dose) and amlodipine (5 mg a normal dose) were prescribed. Later verapamil (180 mg) was substituted for the amlodipine. (Those two drugs are calcium channel blockers; hydrochlorothiazide is a diuretic.) The plaintiff claims not to have been given the drugs for a three week pe riod beginning on February 15, 2009 (we ll assume for pur poses of this appeal that this is true), and that as a result he suffered loss of vision, nose bleeds, headaches, and light headedness upon standing up (actually a symptom of low blood pressure, see Cleveland Clinic, Orthostatic Hypoten sion, http://my.clevelandclinic.org/disorders/orthostatic_ hypotension/hic_orthostatic_hypotension.aspx (all websites cited in this opinion were visited on Oct. 18, 2013). The plaintiff s blood pressure had been taken on Febru ary 9, six days before his medication was interrupted. The No. 12 2682 5 reading on that occasion was 112/82 (the top number is the systolic pressure, the lower the diastolic). His blood pressure was taken next on March 9, at the end of the period of inter ruption, and was 142/78. Ideal blood pressure is consid ered to be below 120/80, but the top of the normal range is 140/90. The systolic pressure was thus slightly above the normal range. A single reading has little significance, be cause blood pressure fluctuates even when the patient is tak ing his medication. A week after the plaintiff resumed his medication, his blood pressure was taken again, and this time it was 114/72. Unless our plaintiff has some serious medical condition unmentioned in the briefs or record, the slight elevation above the normal range that he may have experienced dur ing a three week period (we cannot say, on the basis of a single reading, that he did experience it) would not have produced the symptoms of which he complains or have en dangered his long term health. The prolonged elevation of either the systolic or the diastolic blood pressure causes damage. If mildly elevated over a long period of time, or if highly elevated over a short period of time, damage results to a variety of different target organs in the body, primarily due to arterial injury. 2 Dan J. Tennenhouse, Attorneys Med ical Deskbook § 24:4 (4th ed. 2012) (emphasis added); see also Norman M. Kaplan, Clinical Hypertension 124 25 (9th ed. 2006); Cleveland Clinic, Pulmonary Hypertension: Causes, Symptoms, Diagnosis, Treatment, http://my.clevelandcli nic.org/disorders/pulmonary_hypertension/hic_pulmonary_ hypertension_causes_symptoms_diagnosis_treatment.aspx. The plaintiff experienced not highly elevated blood pressure for a short time or mildly elevated blood pressure for a long time, but mildly elevated blood pressure for a short time. 6 No. 12 2682 Hypertension is a serious condition. Untreated it can re sult in strokes or heart attacks. But a slight elevation above the normal range in an otherwise healthy young person (like the plaintiff) for three weeks will not bring on a stroke or heart attack or even materially increase the risk of a stroke or heart attack forty or fifty years later. The deposition of the physician who took the plaintiff s blood pressure on March 9 does not help the plaintiff s case. Regarding the March 9 reading of 142/78, she said (con sistent with the medical literature that we ve cited): I can not say it s a very serious, you know, condition, but it is a condition where the patient needs to take his medications. The record refers to readings of 146/90 on two occasions in May. Although these readings were higher than the March 9 reading, the physician said that the plaintiff would not have any symptoms with this kind of blood pressure. Sel dom do you see patients with symptoms with this kind of blood pressure. Upon this very thin basis the district court record con tains not a single reference to medical literature the plain tiff s lawyer (who acknowledged at oral argument that he had not himself conducted any research into hypertension, and whose brief contains no references to any medical litera ture) builds an edifice of alarm. He says that his client be gan to suffer bloody noses, loss of vision and visual disturb ances, and further could have suffered even more severe ailments such as stroke or even death. The proposition that his client s not taking his blood pressure medicine for three weeks might have killed him has no medical support in the record or the medical literature. No. 12 2682 7 The magistrate judge thought the plaintiff could in a trial have presented evidence permitting a reasonable inference that [the plaintiff s] need for medication between February 27 [we don t understand the choice of that date rather than February 15] and March 6, 2009, was objectively serious. The district judge agreed that the plaintiff suffered from an objectively serious medical condition. These observations are irrelevancies. Hypertension is a serious medical condi tion because of the long term damage that it can do. But the issue in this case is whether the withholding of treatment during a brief period in the early stages of the condition in an otherwise healthy man in his mid twenties was likely to cause serious, or indeed any, harm. The disconnect between the underlying condition and the interruption in medication is underscored by the fact noted earlier that in May, two months after the interruption had ended, the plaintiff s blood pressure was higher than it had been during the inter ruption. Like the lawyers, the two judges made no reference to any medical literature. They could have skipped all medical questions, relying entirely on the lack of evidence of deliber ate indifference by either defendant. But if they were going to venture an opinion on the objective seriousness of the plaintiff s medical condition, they had to get the condition right which was not hypertension but the medical conse quences, in fact negligible, of a three week deprivation of medicine for mild, early stage hypertension. No matter how serious a medical condition is, the sufferer from it cannot prove tortious misconduct (including misconduct constitut ing a constitutional tort) as a result of failure to treat the condition without providing evidence that the failure caused injury or a serious risk of injury. For there is no tort 8 No. 12 2682 common law, statutory, or constitutional without an inju ry, actual or at least probabilistic. Rozenfeld v. Medical Protec tive Co., 73 F.3d 154, 155 56 (7th Cir. 1996); Buckley v. Fitz simmons, 20 F.3d 789, 796 (7th Cir. 1994); cf. Codd v. Velger, 429 U.S. 624 (1977) (per curiam). ( A probabilistic harm, if nontrivial, can support standing. Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998), and cases cited there.) As explained in Williams v. Liefer, 491 F.3d 710, 714 15 (7th Cir. 2007), In cases where prison officials delayed rather than denied med ical assistance to an inmate, courts have required the plain tiff to offer verifying medical evidence that the delay (ra ther than the inmate s underlying condition) caused some degree of harm. That is, a plaintiff must offer medical evi dence that tends to confirm or corroborate a claim that the delay was detrimental (citations omitted). To determine the effect on the plaintiff s health of a tem porary interruption in his medication, the lawyers in the first instance, and if they did their job the judges in the second instance, would have had to make some investment in learn ing about the condition. That could have taken the form of a judge s appointing a neutral expert under Fed. R. Evid. 706, or insisting that the plaintiff s lawyer obtain an expert s affi davit, or just consulting a reputable medical treatise. The le gal profession must get over its fear and loathing of science. As a detail we point out that this plainly meritless suit was filed on September 2, 2009 more than four years ago. The intervening years have been consumed largely by pro cedural wrangling and protracted, tedious depositions. A stronger judicial hand on the tiller could have saved a good deal of time, effort, and paper. AFFIRMED. No. 12 2682 9 BAUER, Circuit Judge, concurring in the result. I join the opinion insofar as it affirms the grant of summary judgment to the defendants. But as Judge Posner points out, many lawyers decided against medical school because of lack of interest in the clinical aspects of medicine or a deeper inter est in the less scientific aspects of law. I was one of those who chose law as opposed to medicine. I think that the opinion made the necessary legal point when it said that the record shows that summary judgment was clearly the right decision. That s where I would stop.

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