Howell v. Wexford Health Sources, Inc.

• Decision Date: 05 February 2021
• Docket Number: No. 19-3210,19-3210
• Citation: 987 F.3d 647
• Parties: Larry HOWELL, Plaintiff-Appellant, v. WEXFORD HEALTH SOURCES, INC. and John Trost, M.D., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

987 F.3d 647

Larry HOWELL, Plaintiff-Appellant,

v.WEXFORD HEALTH SOURCES, INC. and John Trost, M.D., Defendants-Appellees.

No. 19-3210

United States Court of Appeals, Seventh Circuit.

Argued October 2, 2020

Decided February 5, 2021

Thomas John Pliura, Attorney, Thomas J. Pliura, M.D., J.D., P.C., LeRoy, IL, for Plaintiff-Appellant.

Larry Howell, Hill Correctional Center, Galesburg, IL, Pro Se.

Abbey A. Fritz, Timothy Charles Sansone, Attorneys, Sandberg Phoenix & Von Gontard P.C., St. Louis, MO, for Defendants-Appellees.

Before Ripple, Kanne, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

This appeal presents recurring issues about the Eighth Amendment rights of incarcerated persons to have their serious medical needs treated and to obtain remedies for violations of those rights. Plaintiff Larry Howell injured his knee

while playing basketball in the Menard Correctional Center. He tore his medial meniscus cartilage and his anterior cruciate ligament (ACL). Five months later, he had surgery to repair the torn meniscus. It was another twenty months later, however, before Howell had surgery to reconstruct his ACL, despite Howell's continuing pain and efforts to have the ACL surgery sooner.

While his requests for the ACL surgery were still being rejected, Howell filed this suit under 42 U.S.C. § 1983 alleging violations of his Eighth Amendment right to be free of cruel and unusual punishment. Howell's claims for delaying the ACL surgery were tried to a jury, which ruled in favor of defendant Dr. John Trost but against defendant Wexford Health Sources, Inc. The district court later vacated the portion of the jury verdict against Wexford. The court entered judgment as a matter of law in favor of Wexford, as well as judgment for Dr. Trost based on the jury verdict.

On appeal, Howell challenges only the portion of the judgment in favor of Wexford. He argues that the district court erred by excluding his evidence of other incarcerated people's delayed orthopedic care and erred both procedurally and substantively in granting Wexford's motion for judgment as a matter of law.

We affirm. First, the district court did not abuse its discretion in excluding the evidence about Wexford's treatment of other incarcerated people. Howell did not show that their situations were fairly comparable to his. The court also did not err in granting Wexford's Rule 50(b) motion for judgment as a matter of law. As a procedural matter, Wexford properly incorporated its winning argument as one of the grounds for its Rule 50(a) motions before the verdict. Turning to substance, Howell blamed his pain and delayed surgery on Wexford's so-called "collegial review process," which requires an off-site Wexford physician to review and approve an on-site Wexford physician's recommendation that an incarcerated person be referred to an off-site healthcare provider. The collegial review process is not unconstitutional on its face, and when we dig into the details of this case, we find that Howell did not offer evidence that would let a reasonable jury find that the collegial review process caused any violation of his Eighth Amendment rights.

I. Factual and Procedural History

A. Howell's Knee Injury

and Treatment

On May 4, 2014, while confined at the Menard Correctional Center, Howell suffered an acute knee injury

while playing basketball. The next day, Howell saw defendant Dr. John Trost, a physician at Menard who was employed by defendant Wexford Health Sources, Inc., a private company that contracted with the State of Illinois to provide healthcare services to incarcerated people. Dr. Trost ordered an MRI of Howell's knee, which showed a torn medial meniscus and a torn ACL.

Dr. Trost referred Howell to Dr. Kevin Koth, an outside orthopedic surgeon who is not a party to this case. At Howell's initial appointment in August 2014, Dr. Koth discussed treatment options. He said that he was "not sure that doing an ACL reconstruction with a meniscal repair

is in [Howell's] best interest." On October 7, 2014, Dr. Koth performed surgery to repair the meniscus tear but not the ACL.

Critical for this appeal, Dr. Koth continued to recommend against surgery to repair the ACL unless and until it became "absolutely necessary because I do not think that the rehab situation of being in prison is the most favorable for [Howell] and, therefore, I would elect to hold off and not [do] an ACL reconstruction unless it becomes absolutely necessary." At follow-up appointments in October and November 2014, Dr. Koth continued to recommend against ACL surgery, saying that it "should be the last resort given [Howell's] current situation [in prison]."

To hold defendant Wexford itself liable for a violation of his constitutional rights, Howell seeks to show that the violation was caused by a Wexford corporate policy requiring "collegial review" before an incarcerated person can receive health care from an outside provider. In April 2015, Dr. Trost presented Howell's case for collegial review seeking an outside orthopedic evaluation of his torn ACL. The reviewing off-site Wexford physician denied it and instead recommended a physical therapy treatment plan. In November 2015, Dr. Trost again presented Howell for collegial review seeking an outside orthopedic evaluation. This too was denied. The off-site physician instead requested "more information as to what kind of therapy has been completed." In January 2016, Dr. Trost again presented Howell for collegial review to approve an MRI following his December 2015 complaints of knee pain.

This referral was approved, and an MRI was performed off-site in January.

In February 2016, Dr. Trost presented Howell for collegial review, this time requesting an orthopedic consultation about those MRI results. This request was denied at first, but Dr. Trost appealed. The request was ultimately granted in March 2016. In April 2016, Howell discussed his MRI results with an outside physician's assistant who recommended proceeding with ACL reconstruction surgery. In May 2016, Dr. Trost requested and received approval for ACL surgery. Howell had ACL reconstruction surgery on June 23, 2016, approximately twenty months after his meniscus surgery and more than two years after his injury.

B. Procedural History

Howell filed a complaint in the district court on February 10, 2016, shortly after the MRI that eventually led to the ACL surgery. Defendants filed motions for summary judgment, which were granted in part and denied in part. Before trial, defendants filed motions in limine, including one seeking to bar evidence of Wexford's medical treatment provided to other incarcerated people. The court granted this motion in limine on relevance grounds, ruling that the affidavits of Howell's four disclosed incarcerated witnesses did not sufficiently indicate that they would testify to issues concerning the collegial review process as it related to orthopedic injuries.

At the close of plaintiff's evidence and again when defendants rested without presenting additional evidence, defendants made oral motions under Federal Rule of Civil Procedure 50(a) for judgment as a matter of law. The court denied as to Dr. Trost and reserved decision as to Wexford. The jury returned a verdict in favor of Dr. Trost and against Wexford, awarding plaintiff damages of $25,000. After the verdict, defendants renewed their Rule 50 motions in writing. The court treated Dr. Trost's motion as moot but granted judgment as a matter of law to Wexford.

Howell has appealed the judgment in favor of Wexford but not the judgment against Dr. Trost. Howell contends that the district court erred by excluding evidence about Wexford's delays and failures in treating other patients, and by granting Wexford's Rule 50 motion. The district court had subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343 as to plaintiff's Eighth Amendment claims. This court has jurisdiction of the appeal under 28 U.S.C. § 1291.

II. Monell Liability and the Wexford Collegial Review Process

The district court's decisions first to exclude evidence about other incarcerated people and then to grant judgment as a matter of law are two sides of the same coin. They both stem from doctrinal requirements under § 1983 that can make it difficult for a plaintiff to prove that a private corporation like Wexford should be held liable for violating his constitutional rights. As we explain below, Howell needed to prove that a violation of his Eighth Amendment rights was caused not only by a Wexford agent or employee but by a corporate policy or widespread practice or custom. See generally Monell v. Dep't of Social Servs. , 436 U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Howell tried to meet that burden by showing that Wexford's collegial review process, which requires a second, off-site approval before referring a patient to an outside specialist, violated his rights and those of other incarcerated persons. We assume that this policy is widespread in Menard and other facilities where Wexford provides healthcare services. The question here is whether Howell offered sufficient evidence that Wexford's widespread collegial review policy caused a violation of his constitutional rights. Before engaging with the specifics of Howell's claims, some background on 42 U.S.C. § 1983 liability governed by Monell may be helpful.

A. Monell Liability for Prison Healthcare Providers

Under the Eighth Amendment, prison officials are responsible for providing healthcare to incarcerated persons who cannot obtain healthcare on their own. Estelle v. Gamble , 429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To prove a violation of that right, a plaintiff must prove that a defendant actually knew of a serious health need and acted with deliberate indifference to the plaintiff's suffering. Farmer v. Brennan , 511 U.S. 825, 843, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ; Gamble , 429 U.S. at 104-05, 97 S.Ct. 285. Denying or delaying appropriate treatment to an...