                            NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                      Fed. R. App. P. 32.1




              United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604

                                   Submitted May 5, 2010*
                                    Decided May 5, 2010

                                           Before

                              FRANK H. EASTERBROOK, Chief Judge

                              JOHN L. COFFEY, Circuit Judge

                              DAVID F. HAMILTON, Circuit Judge

No. 09-2944

RALPHFIELD HUDSON,                               Appeal from the United States District
     Plaintiff-Appellant,                        Court for the Western District of Wisconsin.

       v.                                        No. 07-cv-355-bbc

UNITED STATES OF AMERICA,                        Barbara B. Crabb,
     Defendant-Appellee.                         Judge.




                                         ORDER

       In this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680,
Ralphfield Hudson claims that the negligence of prison medical staff in changing the
dosage of his medication caused him to have a seizure. Hudson lost at summary judgment


       *
        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)(C).
No. 09-2944                                                                            Page 2

when he failed to produce expert testimony about the applicable standard of care for
treating a seizure disorder. Hudson appeals, contending that expert testimony is
unnecessary. We affirm the judgment.

       When Hudson was transferred to the federal prison in Oxford, Wisconsin, he had a
prescription from a doctor at his previous prison for 260 mg of phenytoin, an anti-seizure
drug. In his complaint Hudson alleges that the prison pharmacist at Oxford cut the dosage
to 200 mg because the pharmacy did not have the correct pills in stock and the pharmacist
refused to order them. According to Hudson, the reduced dosage did not control his
seizure disorder, and two months later he had a seizure that resulted in a head injury,
ongoing memory loss, and numbness on his right side.

        The parties began discovery, but after Hudson did not disclose any expert witnesses
by the deadline, the United States moved for summary judgment. It argued that Hudson
could not prevail at trial without an expert to establish the applicable standard of care. The
United States attached an affidavit from the prison pharmacist explaining that when
Hudson arrived at Oxford the pharmacy stocked only 100 mg capsules of phenytoin and
nothing smaller. Therefore, according to this hearsay account, a physician assistant
lowered Hudson’s dosage to 200 mg. The pharmacist added that it was safer to reduce the
dosage than to increase it to 300 mg because phenytoin can be harmful in high doses. Five
weeks later, she continued, a blood test revealed that the serum concentration of phenytoin
in Hudson’s blood was 9 mcg/mL, slightly below the optimum range of 10 to 20 mcg/mL.
She explained that Hudson remained on 200 mg because some patients achieve seizure
control at lower serum concentrations and he had been seizure-free for the past month on
the lower dosage. But then less than four weeks after the blood test, the pharmacist
continued, Hudson suffered a seizure, so the dosage was raised to 300 mg by a physician
assistant. Another round of blood tests proved that dosage to be too high, so it was
returned to the initial 260 mg, and the pharmacy ordered 30 mg capsules to fill the
prescription. At that dosage, Hudson’s serum concentration stayed within the 10 to
20 mcg/mL range, and he remained seizure-free through the writing of the affidavit, three
years later. The United States, relying on Wisconsin law, contended that Hudson needed
expert testimony to prove that lowering the dosage by 60 mg violated the standard of care
in treating a seizure disorder. The government argued that a layperson would not know
the effect of changing the dosage.

       Hudson responded that he did not need to provide an expert witness because he
believed that the pharmacist’s own testimony established a breach of the standard of care.
The pharmacist acknowledged that one of her duties is “to ensure that proper laboratory
monitoring is being performed,” and she also conceded that a medical professional should
never assume that a serum concentration within 10 to 20 mcg/mL is either safe or effective.
No. 09-2944                                                                             Page 3

Hudson argued based on the first statement that the pharmacist was negligent when she
failed to ensure that lab tests had been done before his medication was changed. And he
asserted that her explanation that 200 mg was a safer initial dose than 300 mg contradicted
her assertion that one should never assume a particular serum concentration is safe or
effective.

        The district court granted summary judgment for the United States. The court
recognized that Wisconsin law governs substantive issues in this malpractice action. See 28
U.S.C. § 1346(b)(1); Gil v. Reed, 535 F.3d 551, 557 (7th Cir. 2008). But while expressing
reservations, the court also followed the government’s lead in assuming that Wisconsin
evidentiary standards define the need for expert testimony. The court rejected Hudson’s
argument that the pharmacist’s affidavit evidenced the standard of care. The court
reasoned that, although the pharmacist was responsible for ensuring that followup
laboratory analysis was done for medications she dispensed, that task did not establish that
testing was mandated before Hudson’s dosage could be changed. Similarly, the court
concluded that information about evaluating the efficacy or safety of a particular serum
concentration is unrelated to the standard a medical professional should use when
deciding on a dosage without the benefit of a known serum concentration. The court
reasoned that Wisconsin law requires expert testimony about the standard of care unless
the doctrine of res ipsa loquitur applies. But the court concluded that res ipsa loquitur was
inapplicable here because there was no obvious mistake like removing the wrong body part
or leaving a foreign object in a body during surgery. It followed, the court reasoned, that
expert testimony was needed to educate jurors about the appropriate procedure for
prescribing phenytoin.

       On appeal Hudson initially complains that the district court did not recruit counsel
to represent him. But Hudson did not ask the district court for a lawyer until after
judgment had been entered for the United States, and we have not held that a district court
is required to assess the need for counsel sua sponte. Cf. Pruitt v. Mote, 503 F.3d 647, 657-58
(7th Cir. 2007) (en banc) (concluding that district court does not have ongoing duty to
monitor indigent civil litigant’s competence to try case).

       Hudson principally contends that Wisconsin courts would not demand expert
testimony because, in his view, the occurrence of a seizure soon after the dosage was
lowered is reason enough for a layperson to conclude that the medical staff at Oxford was
negligent. The government takes the opposite view, but the parties’ focus on Wisconsin
law is problematic because an expertise requirement grounded in state law does not trump
the federal rules of evidence even in FTCA cases. See Gil v. Reed, 381 F.3d 649, 659 (7th Cir.
2004); Ueland v. United States, 291 F.3d 993, 998 (7th Cir. 2002). We have not decided
whether Wisconsin’s expertise rule imposes a higher burden on litigants than the federal
No. 09-2944                                                                              Page 4

rules, see Gil, 535 F.3d at 558 n.2, but neither party has briefed the issue, and nothing turns
on the distinction, if any. Even if there is no requirement of expert testimony to establish
the standard of care, it is clear that an unfavorable result from treatment will not alone raise
an inference of substandard care. Nowatske v. Osterloh, 543 N.W.2d 265, 274-75 (Wis. 1996);
Francois v. Mokrohisky, 226 N.W.2d 470, 472-73 (Wis. 1975). To get past summary judgment
Hudson needed to present evidence that the manner in which his phenytoin prescription
was altered from 260 mg to 200 mg fell below the applicable standard of care and that the
decrease was a cause of his seizure. See Carney-Hayes v. Nw. Wis. Home Care, Inc., 699
N.W.2d 524, 537 (Wis. 2005). He cannot rely on res ipsa loquitur as a substitute for
evidence of substandard care because that doctrine adds nothing when “the plaintiff’s
evidence may conclusively establish the sequence of events” that caused the injury.
R ESTATEMENT (THIRD) OF T ORTS § 17 cmt. g.; see Lambrecht v. Estate of Kaczmarczyk, 623
N.W.2d 751, 764 & n.27 (Wis. 2001); Turtenwald v. Aetna Cas. & Sur. Co., 201 N.W.2d 1, 5-6
(Wis. 1972). In this case, Hudson has taken the position that the negligent act was lowering
his established dosage in order to avoid buying pills that were not in stock, and having
defined his negligence theory in that manner he cannot rely on the doctrine of
res ipsa loquitur to get around the need to establish the standard of care.

        In addition to relying on the doctrine of res ipsa loquitur, Hudson contends that a
jury could infer negligence from the decision to change a course of medication that had
been working, particularly in the absence of any evidence submitted by the government of
a medical reason for changing the dosage. Hudson did not necessarily need to present
testimony from an independent expert. Even under Wisconsin’s rule it was possible for
him to use other medical testimony to establish a breach of the standard of care; a
statement from the doctor who prescribed the 260 mg might have sufficed, as in Gil v. Reed,
381 F.3d at 660, where we concluded that the plaintiff introduced sufficient evidence of a
breach of the standard of care through testimony that a surgeon hired by the prison reacted
angrily when he learned that a prison doctor had ignored explicit instructions for
postoperative care. But here, Hudson did not supply his previous medical records to
establish that his existing dosage had been effective at keeping his serum concentration in
the optimum range, nor did he offer an opinion from his prior doctor to establish that a
different dosage would be inappropriate. And so we are left with dueling
prescriptions—one for 260 mg and one for 200 mg—with no evidence that either was
improperly prescribed.

       Finally, we note that Hudson also complains that the district court erroneously
“converted” his original action under Bivens v. Six Unknown Named Agents of FBI, 403 U.S.
388 (1971), into one under the FTCA. But his argument is unclear. Hudson originally
claimed deliberate indifference in a suit against several members of Oxford’s medical staff.
The pharmacist was the only defendant to survive screening under 28 U.S.C. § 1915A, and
No. 09-2944                                                                             Page 5

later the court dismissed the Bivens suit altogether after concluding that the pharmacist, as
a commissioned officer of the United States Public Health Service, is statutorily immune
under 42 U.S.C. § 233(a). Hudson then moved to reopen his case as an FTCA claim and
proceeded under that theory. Hudson, not the district court, altered the nature of the case,
and we cannot tell from Hudson’s appellate briefs whether he contests the initial screening
order dismissing some of the defendants or the conclusion that the pharmacist cannot be
sued under Bivens. We do not craft arguments for the parties, Serafinn v. Local 722, Int’l Bhd.
of Teamsters, 597 F.3d 908, 916 (7th Cir. 2010), and so we decline to examine the dismissed
Bivens action.

                                                                                 AFFIRMED.
