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Friday, February 01, 2013

Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal

In Devbrow v. Dr. Eke Kalu (SD Ind., McKinney), a 12-page opinion, Circuit Judge Sykes writes:

This case arises out of a delay by prison medical staff in ordering a prostate biopsy for a prisoner. Eugene Devbrow entered the Indiana prison system in 2000. During the intake process, he told the medical staff that he had prostate problems and would need to be tested for prostate cancer within two to four years. In February 2004 a prison doctor ordered a PSA test (for “prostate-specific antigen”), which revealed an elevated PSA, but the medical staff did not order a prostate biopsy until April 2005. In a follow-up biopsy six months later, Devbrow was diagnosed with prostate cancer, but by that time the disease had spread to his spine and treatment options were severely limited.

In October 2007 Devbrow sued two prison doctors and a prison nurse practitioner under 42 U.S.C. § 1983 for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. He alleged that their long delay in ordering a biopsy prevented the discovery of his cancer while the odds of successfully treating it were still good. The district court entered judgment for the defendants based on the two-year statute of limitations. The court construed the claim as a continuing constitutional violation that began in February 2004—when, according to Devbrow, his PSA test and prostate history showed the need for a biopsy—and ended in April 2005 when the biopsy was ordered. At that point, the court said, the defendants’ deliberate indifference ceased, the cause of action accrued, and the limitations clock started ticking. Because Devbrow filed suit more than two years later, the court dismissed it as untimely.

We reverse. The statute of limitations for a § 1983 deliberate-indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause. Judged by that standard, Devbrow’s suit is timely. He did not know of his injury in April 2005 when the defendants finally ordered a biopsy; he discovered it six months later when he learned he had cancer that might have been diagnosed and treated earlier but for the defendants’ deliberate indifference. The limitations period runs from that discovery, and Devbrow filed suit just before the time expired.

Posted by Marcia Oddi on February 1, 2013 02:03 PM
Posted to Ind. (7th Cir.) Decisions