Dean v. Wexford Health Sources, Inc.
| Decision Date | 10 November 2021 |
| Docket Number | No. 20-3139,No. 20-3058,20-3058 |
| Parties | William DEAN, Plaintiff-Appellee, Cross-Appellant, v. WEXFORD HEALTH SOURCES, INC., et al., Defendants-Appellants, Cross-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Michael Linden, Joel T. Pelz, Attorneys, Jenner & Block LLP, Chicago, IL, Craig C. Martin, Chloe E. Holt, Christopher Matthew Walling, Attorneys, Willkie Farr & Gallagher LLP, Chicago, IL, Robert J. Palmersheim, Attorney, Palmersheim & Mathew LLP, Chicago, IL, for Plaintiff-Appellee, Cross-Appellant in No. 20-3058.
J. Timothy Eaton, Elizabeth E. Babbitt, Nicollette Liv Khuans, Attorneys, Taft Stettinius & Hollister LLP, Chicago, IL, for Defendants-Appellants, Cross-Appellees in No. 20-3139.
Michael Linden, Attorney, Jenner & Block LLP, Chicago, IL, Craig C. Martin, Chloe E. Holt, Christopher Matthew Walling, Attorneys, Willkie Farr & Gallagher LLP, Chicago, IL, for Plaintiff-Appellee, Cross-Appellant in No. 20-3139.
J. Timothy Eaton, Nicollette Liv Khuans, Attorneys, TAFT STETTINIUS & HOLLISTER LLP, Chicago, IL, for Defendants-Appellants, Cross-Appellees in No. 20-3139.
Before Wood, St. Eve, and Kirsch, Circuit Judges.
William Dean developed kidney cancer
while incarcerated at Taylorville Correctional Center in central Illinois. Seven months after he first presented symptoms, Dean had kidney-removal surgery. Unfortunately, the cancer had already spread to his liver, so Dean remains terminally ill. In this lawsuit Dean sues two of the doctors involved in his care: Dr. Abdur Nawoor and Dr. Rebecca Einwohner. He also sues their employer—Wexford Health Sources, Inc.—a private corporation that contracts with Illinois to provide healthcare to Illinois inmates.
Dean's lawsuit focuses on delays in the diagnosis and treatment of his kidney cancer
. He blames the delays on his doctors' failure to arrange timely offsite care and on Wexford's "collegial review" policy, which requires Wexford's corporate office to preapprove offsite care. Dean submits that the defendants' actions were not merely negligent but deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The case went to trial, and the jury sided with Dean, awarding him $1 million in compensatory damages and $10 million in punitive damages against Wexford. After trial, the district court reduced the punitive damages award to $7 million. The defendants now appeal, challenging the jury's verdicts on the Eighth Amendment claims.
We reverse. Dean has endured great suffering, but he did not produce enough evidence at trial to hold any of the defendants liable for violating his Eighth Amendment rights. Dean's claim against Wexford hinged on the Lippert reports—two expert reports from another case that critique the medical care, and process for medical care, that Illinois provides, through Wexford, to its prisoners. The Lippert reports are hearsay, but the district court allowed Dean to use them for a non-hearsay purpose: to prove that Wexford had prior notice of the experts' negative assessments of collegial review. The problem with the district court's ruling is that the second Lippert report postdated all events relevant to this case and thus could not have given Wexford prior notice of anything. And even if the court did not
abuse its discretion in admitting the first report—an issue we need not resolve—the first report alone was insufficient to hold Wexford liable under the exacting requirements of Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), in this single-incident case. Dean fares no better at proving that the doctor-defendants were deliberately indifferent, so we reverse and direct judgment as a matter of law across the board on the Eighth Amendment claims. We do not upset the jury's findings that the defendants were negligent, but a new jury must reassess the issue of damages.
Dean has been incarcerated at the Taylorville Correctional Center in Taylorville, Illinois since 2012. Dean's lawsuit centers on the timing of the offsite care that he received at Taylorville in connection with the diagnosis and treatment of his kidney cancer
. We describe the timeline in some detail before unpacking the evidence presented at trial. We recount all facts and evidence in the light most favorable to the jury's verdict for Dean. See
J.K.J. v. Polk Cnty. , 960 F.3d 367, 371 (7th Cir. 2020) (en banc).
Even before developing kidney cancer
, Dean had serious health issues. Among other ailments, Dean had heart disease, diabetes, and a history of kidney stones. Dean also had passed blood in his urine, though it was usually invisible. In August 2014 and July 2015, Dean had CT scans. A CT scan (short for "computerized tomography scan") uses X-ray imaging and computer technology to create detailed cross-sectional images of internal parts of the body. A CT scan can be an invasive procedure, and it carries risks for patients with severely compromised kidney function. The CT scans performed on Dean in 2014 and 2015 did not detect cancer.
On December 19, 2015, Dean noticed visible blood in his urine. The medical term for blood in the urine is "hematuria." Visible blood in the urine is "gross hematuria." Dean's gross hematuria was initially painless, but he later experienced significant pain from passing blood clots
in his urine.
On December 23, 2015, Dean went to the Taylorville medical clinic seeking help for his gross hematuria. Dr. Nawoor, Wexford's medical director at Taylorville, physically examined Dean and ordered testing of his blood and urine. The testing confirmed that there was blood in Dean's urine. Dr. Nawoor told Dean to stay hydrated. At this early stage, Dr. Nawoor believed that either a recurrence of kidney stones
or cancer was the cause of the gross hematuria.
On January 7, 2016, Dean had a telemedicine visit with Dr. Einwohner. Dr. Einwohner is a nephrologist (kidney doctor) based in Wexford's Pittsburgh corporate office. She provides telemedicine support for Wexford's primary care doctors on kidney issues. After her visit with Dean, Dr. Einwohner emailed Dr. Stephen Ritz suggesting a collegial review for Dean. Dr. Ritz is the corporate medical director for utilization management at Wexford.
Collegial review is Wexford's procedure for discussing and approving offsite care for inmates. When a Wexford doctor decides that an inmate needs offsite care, the doctor submits a referral request form to the medical director of the inmate's facility. If the medical director agrees with the request, the medical director presents the request at a collegial review. The medical director, too, can submit referral request forms. The collegial review itself is a call between the medical director and a Wexford doctor in Pittsburgh who either approves the offsite service or suggests an
alternate plan of care. If collegial review approves the offsite care, Wexford sends the prison an authorization number, at which point the prison calls the offsite specialist to schedule an appointment. Collegial reviews generally occur on a weekly basis. If collegial review approves offsite care, it usually takes an additional 24 to 48 hours for Wexford to send the prison an authorization number. Dr. Ritz is the Pittsburgh doctor who participates in collegial reviews for patients at Taylorville.
In her email to Dr. Ritz, Dr. Einwohner discussed Dean's present condition, history of kidney stones
, and past CT scans. She concluded by suggesting a collegial review "with consideration of re-imaging and urology eval." Dr. Einwohner also followed up with a nurse at Taylorville to ensure that a collegial review would take place.
Six days later, on January 13, 2016, Drs. Nawoor and Ritz had a collegial review to discuss the possibility of offsite care for Dean. This collegial review was apparently done at Dr. Nawoor's request. At the collegial review, Drs. Nawoor and Ritz decided that Dean should undergo a kidney ultrasound
. An ultrasound uses high-frequency sound waves to produce images of internal parts of the body. Ultrasounds generally are less invasive and provide less detailed information than CT scans. They are also cheaper than CT scans for Wexford because, unlike CT scans, they can be done onsite. Wexford gets reimbursed for onsite care whereas it pays out of pocket for offsite care.
Dean had the ultrasound on February 2, 2016. A third-party imaging company came to Taylorville to perform it. A third-party radiologist reviewed the ultrasound and reported that the results were normal, with no evidence of masses on the kidneys. This reading by the third-party doctor was wrong; the ultrasound showed that Dean's right kidney was abnormally large, potentially indicating a mass on the right kidney.1 Dr. Einwohner saw Dean again on February 8, 2016. At this visit, Dr. Einwohner learned of the (incorrect) ultrasound reading. After the visit, Dr. Einwohner followed up with a Taylorville nurse to ensure that Dean would receive another collegial review.
Relying on the incorrect ultrasound reading, Drs. Nawoor and Ritz determined in a collegial review on February 10, 2016, that Dean might have bladder issues. As such, they decided to send him to an offsite urologist for a cystoscopy
(a procedure that scopes the bladder). On March 10, 2016, Dean saw a urologist, Dr. William Severino. Dr. Severino recommended a CT scan and cystoscopy. Drs. Nawoor and Ritz considered Dr. Severino's recommendations during a March 22, 2016 collegial review. They approved the cystoscopy that day and approved the CT scan eight days later, on March 30, 2016, at a separate collegial review.
Dean had the CT scan
on April 12, 2016. The CT scan revealed that Dean had renal cell carcinoma (kidney cancer ) on his right kidney. The CT scan also revealed that the cancer had potentially extended to Dean's vena cava (a large vein that carries...
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