DeWayne Knight v. Thomas Grossman

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 19-1740
DEWAYNE D. KNIGHT,
                                                 Plaintiff-Appellant,
                                 v.

THOMAS GROSSMAN, JR., M.D.,
                                                Defendant-Appellee.
                     ____________________

        Appeal from the United States District Court for the
                    Eastern District of Wisconsin.
       No. 2:16-cv-1644 — William E. Duffin, Magistrate Judge.
                     ____________________

  ARGUED SEPTEMBER 17, 2019 — DECIDED OCTOBER 31, 2019
                ____________________

   Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.
   SCUDDER, Circuit Judge. DeWayne Knight is a prisoner who
went under the knife for one surgery and Dr. Thomas Gross-
man, upon seeing during the operation that he made the
wrong diagnosis, performed another. Knight brought suit un-
der 

, alleging that Dr. Grossman acted with
deliberate indifference to his medical needs in violation of the
Eighth Amendment and disregarded his right to informed
consent in violation of the Fourteenth Amendment. The
2                                                    No. 19-1740

district court entered summary judgment in Dr. Grossman’s
favor on both claims. In considering Knight’s due process
claim, the district court correctly observed that we have never
endorsed a right to informed consent or pronounced a stand-
ard for proving a violation of that right. We do so now by
adopting the standard the Second Circuit articulated in Pabon
v. Wright, 

 (2006). But because Knight did not suf-
ficiently prove the elements of either of his claims, we affirm
the district court’s judgment.
                                I
    The summary judgment record supplies the operative
facts, and we draw all inferences in the light most favorable
to Knight. See Yochim v. Carson, 

 (7th Cir.
2019).
    While serving a sentence at the Waupun Correctional In-
stitution, DeWayne Knight sought treatment for a basketball
injury to his left knee. Prison staff referred Knight to
Dr. Grossman, who worked at a hospital that contracted with
the Wisconsin Department of Corrections to provide medical
services to state prisoners. Dr. Grossman diagnosed Knight
with a tear in his anterior cruciate ligament and performed
reconstruction surgery. This surgery was successful and is not
at issue in this litigation.
   A few years later, Knight reinjured his knee and returned
to Dr. Grossman for treatment. Dr. Grossman examined
Knight, ordered x-rays, and, without consulting an MRI, di-
agnosed him with a torn ACL revision. Dr. Grossman offered
Knight the option of undergoing a revision procedure to re-
pair the tear. In doing so, he issued a series of disclaimers, ex-
plaining that the surgery was elective and not strictly
No. 19-1740                                                  3

necessary, involved certain risks, and did not bring with it a
promise that it would resolve Knight’s pain. Knight agreed to
the surgery and opted for a type of reconstruction procedure
that would require Dr. Grossman opening both knees and
transplanting tissue from Knight’s healthy right knee into his
left knee.
    On the day of the surgery, Knight signed a consent form
authorizing a “[r]evision left anterior cruciate reconstruction
with donor site from right knee.” The form also provided that
if “unforeseen conditions” arose during the surgery which, in
Dr. Grossman’s judgment, required additional or different
procedures, he had Knight’s consent to take any further steps
“deemed necessary and advisable.” Upon opening Knight’s
left knee, Dr. Grossman was met with a different condition
than he anticipated—Knight’s ACL was intact and functional,
not torn. But Dr. Grossman observed other issues with
Knight’s left knee, including surface damage to the cartilage
(grade three changes in the trochlea), narrowing of the space
between the two bumps at the end of the thigh bone (dense
stenosis on the lateral side on the intercondylar notch, with a
small bone fragment), and bony overgrowths on the kneecap
(patellar osteophytosis). An experienced surgeon, Dr. Gross-
man determined what he was seeing was consistent with de-
generative joint disease or arthritis and would explain why
Knight was experiencing renewed pain and discomfort in his
left knee.
    Dr. Grossman knew immediately how to treat Knight. He
could continue operating by using the two small incisions that
had already been made to Knight’s left knee to perform a se-
ries of arthroscopic surgical procedures. In medical terms, a
procedure known as a chondroplasty would remove the
4                                                 No. 19-1740

damaged tissue and a second procedure, a notchplasty,
would enlarge the narrowed gap to address the thigh-bone
issue. As for the kneecap, Dr. Grossman could perform an
abrasion arthroplasty—a procedure that required (in simpli-
fied terms) shaving the bone to a degree that stimulated the
bone marrow to generate new cartilage.
   So Dr. Grossman found himself at a fork in the road: with
Knight unconscious on the operating table, he could close
Knight’s knee and end the operation or move forward with
the alternative procedures he had not discussed with Knight
but believed would help him. Dr. Grossman chose to keep op-
erating. He later explained that he did so not only because he
was confident the alternative procedures would address
Knight’s condition, but also because it was unclear if or when
Knight, as a prisoner, would be available for surgery again.
    Knight woke up in the recovery room to find that only his
left knee had been operated on. No one told Knight that
Dr. Grossman had changed course mid-operation and per-
formed an alternative surgery—one they had never dis-
cussed. Upon Knight’s discharge from the hospital, Dr. Gross-
man sent his operative note and recovery instructions to the
prison’s medical unit. The note explained what Dr. Grossman
had observed, including Knight’s intact ACL, and the proce-
dures he performed, including the abrasion arthroplasty.
Dr. Grossman instructed that Knight could stand and put
whatever weight on his left knee he was able to tolerate, even
though recovery from abrasion arthroplasty requires that the
patient avoid putting any weight on the knee so that the new
cartilage can mature. Three months after the surgery, Knight
had a follow-up appointment with Dr. Grossman, where he
No. 19-1740                                                    5

finally learned the details of his surgery. Knight’s knee has
since gotten worse.
    Litigation then followed. Knight brought suit against
Dr. Grossman under 

, claiming that the treat-
ment he received for his knee violated his Eighth and Four-
teenth Amendment rights. Dr. Grossman moved for sum-
mary judgment on both claims, and the district court granted
his motion. Knight now appeals.
                               II
    We start with Knight’s claim that Dr. Grossman acted with
deliberate indifference to his medical needs. We do so by tak-
ing our own fresh look at the record evidence, construing all
facts in Knight’s favor. See Lavite v. Dunstan, 

 (7th Cir. 2019).
     The Eighth Amendment prohibits the “unnecessary and
wanton infliction of pain,” which includes “[d]eliberate indif-
ference to serious medical needs of prisoners.” Estelle v. Gam-
ble, 

, 103–04 (1976). To prevail on this claim, Knight
must prove not only that he suffered from an objectively seri-
ous medical condition, but also that a state official responded
with deliberate indifference to the condition. See Whiting v.
Wexford Health Sources, Inc., 

 (7th Cir. 2016).
    Dr. Grossman does not dispute that Knight’s knee condi-
tion is an objectively serious medical condition or that he
qualifies as a state official, leaving deliberate indifference the
only contested element. A prison official is deliberately indif-
ferent only if he “knows of and disregards an excessive risk
to inmate health or safety.” Farmer v. Brennan, 

 (1994). The inquiry is subjective and requires that the of-
ficial know “facts from which he could infer that a substantial
6                                                 No. 19-1740

risk of serious harm exists, and he must actually draw the in-
ference.” Whiting, 

. “[E]vidence of medical neg-
ligence is not enough to prove deliberate indifference.” 

    Knight advances his Eighth Amendment claim by insist-
ing that Dr. Grossman was deliberately indifferent to his right
to informed consent. Framing the issue that way sends the
parties down the wrong analytical path, however. Knight’s
Eighth Amendment claim is one for deliberate indifference to
his serious medical needs, not deliberate indifference to a
right to informed consent. Knight’s liberty interest in in-
formed consent to particular medical treatment is the prov-
ince of the Fourteenth Amendment.
    Take, for example, a prisoner with a malignant but treata-
ble tumor. If a doctor discovers and removes the tumor while
treating a hernia, nobody would say the doctor acted with de-
liberate indifference to the prisoner’s medical needs. To the
contrary, the physician, albeit without affording the prisoner
the right to choose a course of medical care, saved the in-
mate’s life. Put another way, at least in this case, whether
Knight consented to the abrasion arthroplasty is irrelevant to
his Eighth Amendment claim for deliberate indifference to his
medical needs.
    On this record, we conclude that no reasonable jury could
find that Dr. Grossman acted with deliberate indifference to
Knight’s knee condition. Nothing suggests, much less suffices
to show, that Dr. Grossman knew of and disregarded a sub-
stantial risk to Knight’s condition or somehow denied or de-
layed treatment. All evidence points the opposite way:
Dr. Grossman came upon an unexpected diagnosis during
surgery, identified an alternative treatment course, and then
traveled that new path—all to help Knight.
No. 19-1740                                                    7

    Knight urges a different perspective on the view that
Dr. Grossman provided the wrong treatment or even defi-
cient care. Apart from finding no footing in the facts, this the-
ory faces an uphill climb on the law, as, unlike in a malprac-
tice tort claim, medical professionals receive significant defer-
ence when their judgments encounter challenges under the
Eighth Amendment. See Wilson v. Wexford Health Sources, Inc.,

 (7th Cir. 2019). The standard is not whether
a reasonable medical professional would have made the same
choice as Dr. Grossman, but instead whether “no minimally
competent professional” would have done so. 

 “[E]vidence
that some medical professionals would have chosen a different
course of treatment is insufficient to make out a constitutional
claim.” Petties v. Carter, 

 (7th Cir. 2016) (en
banc).
    Knight failed to meet this demanding standard. The rec-
ord does not support a finding that either the abrasion arthro-
plasty or the inadequate recovery instructions deviated from
accepted medical standards. Knight’s own expert opined only
that Dr. Grossman’s failure to obtain a new informed consent
and discuss alternative treatment opinions deviated from pro-
fessional standards. From there, though, the expert’s opinions
say nothing about whether the abrasion arthroplasty, the fail-
ure to tell Knight about it, or the recovery instructions aligned
with medical standards, let alone whether those choices were
such substantial deviations that a jury could find deliberate
indifference.
    To be sure, expert testimony is not always necessary. See

 Here, however, none of the alleged errors are so obvious
that a lay juror could assess whether Knight carried his bur-
den in challenging Dr. Grossman’s treatment. In the end, all
8                                                     No. 19-1740

we can say is that Knight may have marshaled enough evi-
dence to cast doubt on the wisdom of Dr. Grossman’s choice
to perform the abrasion arthroplasty—a procedure that, at
least in some circles, is considered controversial and out-
dated. But most medical treatments carry risk, and without
evidence that Dr. Grossman’s choices carried risk so high that
no minimally competent doctor would have done the same,
Knight cannot prevail. The district court was right to grant
summary judgment on the Eighth Amendment claim.
                                III
    We now venture into newer territory to address Knight’s
due process claim. The Fourteenth Amendment protects
against deprivations of life, liberty, and property without due
process of law. The Supreme Court has recognized that “a
competent person has a constitutionally protected liberty in-
terest in refusing unwanted medical treatment.” Cruzan v.
Dir., Mo. Dep’t of Health, 

 (1990). So, too, has
the Court held that prisoners retain a liberty interest in refus-
ing forced medical treatment while incarcerated. See Washing-
ton v. Harper, 

, 221–22 (1990).
    From the interest in refusing unwanted treatment, some
courts have inferred the existence of a corollary right—the
right to receive information required to decide whether to re-
fuse treatment. See, e.g., Pabon v. Wright, 

, 249–50
(2d Cir. 2006); Benson v. Terhune, 

 (9th Cir.
2002); White v. Napoleon, 

 (3d Cir. 1990). On
at least two occasions we have reserved judgment on the ex-
istence of this right. See Cox v. Brubaker, 

, 678–
79 (7th Cir. 2014); Phillips v. Wexford Health Sources, Inc., 

 (7th Cir. 2013).
No. 19-1740                                                  9

    We now join all other circuits to have considered the ques-
tion in holding that prisoners have a Fourteenth Amendment
right to informed consent. The right to refuse medical treat-
ment carries with it an implied right to the information nec-
essary to make an informed decision about whether to refuse
the treatment. Without crucial information about the risks
and benefits of a procedure, the right to refuse would ring
hollow. Together, the right to refuse treatment and the right
to information required to do so constitute a right to informed
consent. This due process entitlement has similarities to the
familiar common law doctrine with which it shares its name,
see Cruzan, 497 U.S. at 269–70 (describing the common law
roots of informed consent), but its constitutional origin im-
poses different requirements than an informed-consent tort
claim.
                              A
    The Second Circuit confronted the requirements for what
it termed a Fourteenth Amendment “right to medical infor-
mation” claim in its 2006 decision in Pabon v. Wright, 

. While incarcerated, William Pabon underwent a liver bi-
opsy and medication therapy for Hepatitis C. 

. He
claimed that he was not warned of the serious side effects and
brought a § 1983 claim based on the violation of a Fourteenth
Amendment right to medical information. Id. at 245–46. Rely-
ing on Cruzan and Harper, the Second Circuit recognized a
constitutional entitlement to medical information but empha-
sized that it was “far from absolute.” Id. at 249–50. The court
highlighted four limitations on the right.
   The first three limitations address what the prisoner must
prove to establish a violation of his right to medical infor-
mation. Two of the limitations are necessary because the
10                                                  No. 19-1740

logical source of the right to medical information is the right
to refuse treatment, so the right to medical information exists
only as far as needed to effectuate the right of refusal. Id. at
251. First, the prisoner “must show that, had he received in-
formation that was not given to him, he would have exercised
his right to refuse the proposed treatment.” Id. Second, “[t]he
prisoner is entitled only to such information as a reasonable
patient would deem necessary to make an informed deci-
sion.” Id. at 250. This limitation avoids imposing an onerous
burden of disclosing “all conceivable information” about a
treatment and reduces the opportunity for the right to be used
for “obstructionist” gain. Id.
     Third, the prisoner must prove that the defendant acted
with deliberate indifference to his right to refuse medical
treatment. Id. at 251. Neither negligence nor gross negligence
is enough to support a substantive due process claim, which
must be so egregious as to “shock the conscience.” See County
of Sacramento v. Lewis, 

, 848–49 (1998); McDowell v.
Vill. of Lansing, 

 (7th Cir. 2014). In selecting
deliberate indifference as the appropriate state of mind re-
quirement as opposed to a more stringent intentionality
standard, the Second Circuit relied on the Supreme Court’s
observation in Lewis that “liability for deliberate indifference
to inmate welfare rests upon the luxury enjoyed by prison of-
ficials of having time to make unhurried judgments, upon the
chance for repeated reflection, largely uncomplicated by the
pulls of competing obligations.” 

. The Court
reasoned that in this context of “such extended opportunities
to do better” and “protracted failure even to care, indifference
is truly shocking.” 

No. 19-1740                                                  11

    This element is the one Knight more vigorously contests,
arguing that imposing a deliberate indifference requirement
inappropriately “collapses the distinct right to informed con-
sent granted under the Fourteenth Amendment into the pro-
hibition against deliberate indifference to a prisoner’s serious
medical needs provided for under the Eighth Amendment.”
We disagree. Knight’s position misses a key distinction, which
hinges on what the defendant must be deliberately indifferent
to. In an Eighth Amendment claim, the question is whether
the defendant was deliberately indifferent to the prisoner’s se-
rious medical need. But here, in a Fourteenth Amendment
due process claim, we ask whether the defendant was delib-
erately indifferent to the prisoner’s right to refuse treatment.
Though both require deliberate indifference, the inquiries are
distinct.
    Stepping back illuminates the distinction. A physician is
deliberately indifferent to a patient’s right to refuse treatment
if the doctor subjectively knows that the patient did not con-
sent to the treatment or that the patient would want to know
the medical information being withheld in order to decide
whether to refuse the treatment. But a physician can be delib-
erately indifferent to a prisoner’s right to refuse treatment
without being deliberately indifferent to his medical needs.
Our tumor example shows as much.
    The final limitation the Second Circuit outlined in Pabon is
a safety valve of sorts—allowing the right to medical infor-
mation to give way when outweighed by a countervailing
state interest. A prisoner’s right to refuse medical treatment
can be infringed by a prison regulation that is “reasonably re-
lated to legitimate penological interests.” Harper, 

 (quoting Turner v. Safley, 

 (1987)). A
12                                                   No. 19-1740

common example is when forced medication is needed to
avoid the spread of contagious disease or to quell disruptive
behavior. As the Second Circuit explained, “[i]f legitimate pe-
nological interests dictate that a particular treatment must be
administered even if the prisoner would have refused it, then
because there is no constitutional right to refuse treatment,
there is no corollary right to be informed about the treat-
ment.” Pabon, 

.
                                B
    We agree with the Second Circuit’s reasoning and adopt
the Pabon standard. A prisoner’s claim of the violation of his
right to informed consent is evaluated under a two-step in-
quiry. The prisoner must first establish that his right to in-
formed consent was violated. To do this, the prisoner must
prove that (1) he was deprived of information that a reasona-
ble patient would deem necessary to make an informed deci-
sion about his medical treatment, (2) the defendant acted with
deliberate indifference to the prisoner’s right to refuse treat-
ment, and (3) if the prisoner had received the information, he
would have refused the treatment. If the prisoner establishes
that his right to informed consent has been violated, we then
take the second and final step of balancing the prisoner’s right
to informed consent against countervailing state interests. Li-
ability arises only if, in the end, the prisoner’s right outweighs
the state interests.
                                C
   We question whether Knight has sufficiently shown that
Dr. Grossman was deliberately indifferent to his right to re-
fuse treatment, particularly given the scope of the consent
form. But we can stop short of answering that question
No. 19-1740                                                 13

because, at the very least, Knight failed to show that he would
have refused the only procedure he contests (the abrasion ar-
throplasty) had he been fully informed. Knight’s express po-
sition below was that he “may well have” chosen a different
treatment. Even if he had submitted that view in a sworn affi-
davit, which he did not, it would have fallen short: saying he
may have refused treatment is not the same as saying he
would have. With this failure of proof, the district court
properly granted Dr. Grossman summary judgment.
   For these reasons, we AFFIRM.