Whiting v. Wexford Health Sources, Inc.

• Decision Date: 12 October 2016
• Docket Number: No. 15-1647,15-1647
• Citation: 839 F.3d 658
• Parties: Calvin Whiting, Plaintiff–Appellant, v. Wexford Health Sources, Inc., and Alfonso David, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

839 F.3d 658

Calvin Whiting, Plaintiff–Appellant,

v.Wexford Health Sources, Inc., and Alfonso David, Defendants–Appellees.

No. 15-1647

United States Court of Appeals, Seventh Circuit.

Argued October 26, 2015

Decided October 12, 2016

Arthur Gold, Attorney, Gold & Associates, Ltd., Chicago, IL, for Plaintiff–Appellant.

Karen Kies DeGrand, Attorney, Donohue, Brown, Mathewson & Smyth, Chicago, IL, for Defendant–Appellee Wexford Health Sources, Incorporated.

Julie Ann Teuscher, Matthew H. Weller, Attorneys, Cassiday Schade LLP, Chicago, IL, for Defendant–Appellee Alfonso C. David.

Before Wood, Chief Judge, Bauer and Sykes, Circuit Judges.

Sykes, Circuit Judge.

While serving a probation-revocation sentence in an Illinois prison, Calvin Whiting fell ill with what turned out to be a rare form of non-Hodgkin's lymphoma. A prison doctor initially diagnosed an infection and prescribed antibiotics and nonprescription pain relievers. It was not until two months later that the doctor ordered a biopsy and the cancer was discovered.

Whiting filed this lawsuit under 42 U.S.C. § 1983 against the prison doctor and the prison's private medical provider alleging that they were deliberately indifferent to his serious medical needs during the two months that his cancer went undiagnosed. The district court granted summary judgment to both defendants. We affirm.

I. Background

Calvin Whiting violated the terms of his probation on an Illinois burglary conviction and was sent to the Shawnee Correctional Center in Vienna, Illinois, in July 2010. Wexford Health Sources, Inc., provides medical services for inmates in Illinois prisons. Dr. Alfonso David is the medical director at Shawnee. On October 15, 2010, Whiting went to the prison's medical center seeking treatment for pain in his left jaw, left ear, and groin; he also discovered nodules developing in these areas. A nurse examined him and thought he had an ear infection; she gave him amoxicillin (an antibiotic) and Motrin.

About a week later Whiting returned to the medical center complaining that his pain had worsened and the amoxicillin had given him a rash. He was given Bactrim, a different antibiotic, instead. Chest and abdominal x-rays also were ordered. Dr. David is listed as the prescribing physician for these orders, but it's not entirely clear whether he or the nurse saw Whiting that day.

Over the next few days, Whiting told two different nurses that his pain and the bumps were getting worse. The nurses gave him Tylenol and scheduled an examination with Dr. David. On October 26 Whiting was sick enough to be admitted to the infirmary. Dr. David saw him the next day.

Dr. David's observations from the October 27 examination indicate that Whiting's pain was continuing (and possibly worsening), his lymph nodes were swollen, and he had developed a mass in his jaw. Dr. David ordered blood work and submitted a biopsy request to Wexford's “Collegial Review Committee.” This “committee”—just Dr. David himself and one other physician—denied the biopsy request on November 1. The two doctors decided to try two different antibiotics (doxycycline and Augmentin ), one after the other, and proceed with a biopsy if this course of treatment did not work. Dr. David implemented this treatment plan that same day. Whiting continued to receive nonprescription pain medication.

The first few days on the new antibiotic regimen showed promise: Two nurses reported some improvement in Whiting's condition. But by November 7 Whiting was reporting new bumps and increased pain. On November 29 a nurse observed many more bumps and scheduled another appointment with Dr. David. On December 2 Dr. David examined Whiting and resubmitted the biopsy request. It was approved four days later, and the biopsy was performed on December 21, almost two full months after Dr. David first submitted the biopsy request to the “committee.” The results revealed that Whiting had a rare type of non-Hodgkin's lymphoma.

Dr. David referred Whiting to an outside oncologist, Dr. Mahnaz Lary, who diagnosed Stage IV SLK positive anaplastic large cell lymphoma, a rare and aggressive form of the disease. Chemotherapy began in early January 2011. In June 2011 Whiting's lymphoma appeared to be in complete remission, but by August the disease had returned. Whiting began another round of chemotherapy. In October 2011 he was approved for a stem-cell transplant at Barnes Jewish Hospital in St. Louis. A scan in December 2011 showed the lymphoma again in remission.

Whiting's prison sentence ended in January 2012. After his release he received additional chemotherapy and a stem-cell transplant at the University of Chicago Medical Center. A biopsy in June 2012 brought bad news: the lymphoma was back. Since then Whiting has been receiving palliative chemotherapy and remains a candidate for another stem-cell transplant.

Whiting filed this suit against Dr. David and Wexford alleging that they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment.¹ His claim focuses on the period from late October 2010, when Dr. David first examined him, and early January 2011, when chemotherapy began. Whiting argues that the decision to postpone the biopsy and continue to treat him for an infection forced him to endure severe pain during this two-month period.

Both defendants moved for summary judgment. Dr. David argued that the evidence was insufficient to support an inference that he acted with the necessary culpable state of mind. Wexford argued that Whiting failed to produce evidence showing that his injury was caused by a policy or custom, a necessary element for liability under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district judge accepted these arguments and entered judgment for the defendants.

II. Discussion

We review the court's order granting summary judgment de novo, viewing the evidence and drawing all reasonable inferences in Whiting's favor. Burton v. Downey , 805 F.3d 776, 783 (7th Cir. 2015). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A factual dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Dr. David

“[D]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.”

Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia , 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ) (citation omitted). To prevail on a deliberate-indifference claim, the plaintiff must prove that he suffered from “(1) an objectively serious medical condition to which (2) a state official was deliberately, that is subjectively, indifferent.” Duckworth v. Ahmad , 532 F.3d 675, 679 (7th Cir. 2008). Lymphoma is an objectively serious medical condition, and Whiting submitted expert testimony that he would have suffered significantly less pain during November and December of 2010 if a biopsy had been ordered and chemotherapy begun. As in many deliberate-indifference cases, the dispute rests on the second element of the claim.

A prison official is deliberately indifferent only if he “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan , 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The state-of-mind element is measured subjectively: The defendant must know of facts from which he could infer that a substantial risk of serious harm exists, and he must actually draw the inference. Id . ; see also Petties v. Carter , No. 14–2674, 836 F.3d 722, 728, 2016 WL 4631679, at *3 (7th Cir. Aug. 25, 2016) (en banc) (“[T]he Supreme Court has instructed us that a plaintiff must provide evidence that an official actually knew of and disregarded a substantial risk of harm.”). The requirement of subjective awareness tethers the deliberate-indifference cause of action to the Eighth Amendment's prohibition of cruel and unusual punishment; “an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain.’ ” Estelle , 429 U.S. at 105, 97 S.Ct. 285 (emphasis added).

When a prison medical professional is accused of providing inadequate treatment (in contrast to no treatment), evaluating the subjective state-of-mind element can be difficult. It's clear that evidence of medical negligence is not enough to prove deliberate indifference. Id. at 106, 97 S.Ct. 285 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); Petties , 836 F.3d at 728, 2016 WL 4631679, at *3 (“[P]laintiffs must show more than mere evidence of malpractice to prove deliberate indifference.”); see also McGee v. Adams , 721 F.3d 474, 481 (7th Cir. 2013) ; Duckworth , 532 F.3d at 679 (“Deliberate indifference is not medical malpractice; the Eighth Amendment does not codify common law torts.”); Greeno v. Daley , 414 F.3d 645, 653 (7th Cir. 2005) (“[N]either medical malpractice nor a mere disagreement with a doctor's medical judgment amounts to deliberate indifference.”). So without more, a mistake in professional judgment cannot be deliberate indifference.

By definition a treatment decision that's based on professional judgment cannot evince deliberate indifference because professional judgment implies a choice of what the defendant believed to be the best course of treatment. A doctor who claims to have exercised professional judgment is effectively asserting that he lacked a sufficiently culpable mental state, and if no reasonable jury could discredit that claim, the doctor is entitled to summary judgment.

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