Jeremiah D. Lambert v. Kenneth P. Adler

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 11, 2014 *
Decided December 17, 2014
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 14‐2189
JEREMIAH D. LAMBERT,
Plaintiff‐Appellant,
v.
KENNETH P. ADLER,
Defendant‐Appellee.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 11‐cv‐418‐bbc
Barbara B. Crabb,
Judge.
O R D E R
Jeremiah Lambert, a Wisconsin inmate, experienced permanent hearing loss in his
right ear from otitis media, an inflammation of the middle ear. Lambert appeals from the
adverse verdict on his Eighth Amendment claim that Dr. Kenneth Adler, the Associate
Medical Director for the prison system’s Bureau of Health Services, delayed sending him
* 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. A PP. P. 34(a)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 14‐2189 Page 2
to an ear, nose, and throat specialist for evaluation. See 42 U.S.C. § 1983. The district
court found, after a bench trial, that Dr. Adler was not responsible, since he was just part
of a committee which initially declined requests from Lambert’s treating physician for
evaluation by an ENT specialist. We affirm the judgment.
In December 2008, Lambert first experienced intermittent pain in his right ear,
along with uncomfortable pressure, bleeding, and drainage. Nurses who saw him
multiple times during the next six months irrigated wax from the ear and prescribed
antibiotics. Then in July 2009, Lambert was seen briefly by Dr. Adler, who was helping
out at Lambert’s prison even though he does not treat inmates there on a regular basis.
What happened at that meeting was disputed at trial.
In October 2009, prison physician Glen Heinzl examined Lambert, who reported
a foul‐smelling discharge from his ear and impaired hearing. Dr. Heinzl suspected that
Lambert suffered from chronic serous otitis media, a condition that signals a perforated
eardrum. He wanted to send Lambert to an ENT specialist and sought approval from
one of two Prior Authorization Committees within the Bureau of Health Services.
Dr. Adler chaired that committee, which a day later met and (after hearing from
Dr. Heinzl by telephone) rejected the request, opting instead to switch antibiotics and
monitor Lambert for two months.
That was on October 6, 2009. Two weeks later Lambert again saw Dr. Heinzl, still
complaining of pain, drainage, and hearing loss. Dr. Heinzl continued the regimen of
antibiotics and ordered an audiogram, which confirmed hearing loss in Lambert’s right
ear. After six more weeks Lambert’s symptoms had not subsided, so on December 8
Dr. Heinzl presented a second request (again by telephone) for approval to send
Lambert to an ENT specialist. The Prior Authorization Committee denied that request,
but Dr. Heinzl was instructed to contact an ENT specialist for advice. He did that on
January 21, 2010, and was told that the ENT specialist wanted to examine Lambert. The
Prior Authorization Committee gave its approval on January 26.
About a month later Lambert was seen by the ENT specialist, who confirmed the
diagnosis of otitis media and also verified that Lambert’s eardrum was perforated. In
August 2010, Lambert had surgery to remove damaged tissue from the middle ear and
repair the eardrum. He later had a second surgery to reconstruct the bones of the middle
ear, which had eroded from long‐term inflammation. Lambert now wears a hearing aid
and experiences ringing in his right ear without it.

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No. 14‐2189 Page 3
The only witnesses at trial were Dr. Adler, Lambert, and Lambert’s expert.
Lambert pressed two theories of deliberate indifference. First he argued that Dr. Adler
should have recognized the need for aggressive intervention when he substituted as a
treating physician in July 2009. During that visit Dr. Adler admittedly saw a “small
bloody bleb” on Lambert’s eardrum and recognized signs of serous otitis media with
effusion but prescribed only an over‐the‐counter decongestant. According to Lambert,
the defendant accused him of trying to finagle a “field trip” when he insisted that a
specialist be consulted. Dr. Adler denied this and testified that he reviewed Lambert’s
medical chart and, while examining his ear, did not detect any hearing loss or
perforation of the eardrum. His treatment decision, Dr. Adler maintained, is supported
by an online medical resource that, at trial, Lambert accepted as reliable. The district
court disbelieved Lambert’s testimony about the “field trip” remark and concluded that
Dr. Adler had exercised medical judgment during this encounter, and that his actions
could not be characterized as deliberately indifferent to Lambert’s medical condition.
Lambert does not contest this conclusion.
This appeal, then, concerns Lambert’s second theory: that Dr. Adler was
deliberately indifferent because the Prior Authorization Committee did not initially
grant Dr. Heinzl’s requests to involve an ENT specialist. Although he chairs that
committee, Dr. Adler testified that he is just one of its dozen prison doctors and nurse
practitioners who during weekly meetings engage in question‐and‐answer discussions
with treating physicians before deciding whether to approve proposals for specialized,
outside medical care. The committee, explained Dr. Adler, acts by consensus, and
though as the chair he facilitates the discussion, he does not have veto power or
authority to act unilaterally. And, he added, he was not the physician who first
suggested during the October meeting the unanimous option of trying a different
antibiotic. Lambert’s expert, family practitioner Gregory Brotzman, opined that some or
maybe even most doctors would have sent Lambert to an ENT specialist before the
committee gave approval in January 2010, but he could not say if Lambert’s hearing loss
would have been less significant had the committee approved Dr. Heinzl’s first request
for outside assistance in October 2009.
In rejecting this theory, the district court found that the Prior Authorization
Committee, not Dr. Adler alone, had decided against immediately sending Lambert to
the ENT specialist. The court added that “the committee members acted independently
and in reliance on their own professional judgment.” Lambert had alleged that Dr. Adler
unduly influenced the other members of the committee, some of whom he supervised,
but at trial he never developed this speculative contention. And now on appeal, instead

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No. 14‐2189 Page 4
of confronting the district court’s analysis, Lambert ignores that he sued only Dr. Adler
and implies that every member of the committee was deliberately indifferent. But
Lambert called no one else from the committee to testify, and neither did he introduce
other evidence contradicting Dr. Adler’s testimony that Dr. Heinzl presented Lambert’s
medical history and that the committee members discussed Dr. Heinzl’s request before
the group unanimously declined his proposals to enlist an ENT specialist. Although
Lambert disagrees with the process utilized by the committee, he cites no pertinent
authority showing that the committee was not permitted to rely on Dr. Heinzl’s
representations about Lambert’s medical condition without independently reviewing
his medical record or consulting resource materials, and then exercise their own
independent judgment in assessing the proper treatment. In any event, this process was
not so obviously inappropriate as to suggest deliberate mistreatment. See Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011); Norfleet v. Webster, 439 F.3d 392, 396–97 (7th Cir.
2006); Johnson v. Doughty, 433 F.3d 1001, 1014–15 (7th Cir. 2006); Estate of Cole v. Fromm, 94
F.3d 254, 261 (7th Cir. 1996); Adams v. Poag, 61 F.3d 1537, 1547 (11th Cir. 1995). Nor did
Lambert contradict Dr. Adler’s testimony that he does not steamroll committee decisions
and that, in fact, another physician proposed switching antibiotics as the next step. And,
as the district court recognized, since Dr. Adler did not control the actions of the
committee, he was not personally responsible for its initial decisions—right or
wrong—to delay involving an ENT specialist. See Walker v. Benjamin, 293 F.3d 1030, 1038
(7th Cir. 2002).
Finally, we add one observation of our own. Even if Lambert had shown that
Dr. Adler was both wholly responsible for refusing quicker access to an ENT specialist
and that he acted with a culpable state of mind, Lambert still lacked medical evidence
establishing that the delay from early October to the time he saw the specialist in
February contributed to his injuries. Indeed, his own expert was unable to draw that
conclusion. See id.; Langston v. Peters, 100 F.3d 1235, 1240–41 (7th Cir. 1996). Although
Lambert’s condition worsened after his first report of ear pain in December 2008, no
witness suggested that seeing the ENT specialist in October 2009 instead of January 2010
would have prevented or mitigated Lambert’s hearing loss.
AFFIRMED.

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