Mario Arce v. Wexford Health Sources, Inc.

                              In the

    United States Court of Appeals
                 For the Seventh Circuit
                    ____________________
No. 22-1694
MARIO ARCE,
                                                Plaintiff-Appellant,
                                 v.

WEXFORD HEALTH SOURCES INC.,
et al.,
                                             Defendants-Appellees.
                    ____________________

        Appeal from the United States District Court for the
                    Southern District of Illinois.
       No. 3:18-CV-1348 — Nancy J. Rosenstengel, Chief Judge.
                    ____________________

       ARGUED MAY 18, 2023— DECIDED JULY 27, 2023
                ____________________

   Before WOOD, LEE, and PRYOR, Circuit Judges.
    WOOD, Circuit Judge. Inmate Mario Arce got a sharp knee
in the thigh while he was playing soccer at Illinois’s Pinckney-
ville Correctional Center on June 18, 2017. Ever since then, he
has suffered from severe leg pain, which the prison’s medical
providers ultimately concluded was attributable to a blood
clot. But although Arce’s blood clot was successfully treated,
his pain persisted. Arce sued Wexford Health Sources, which
2                                                 No. 22-1694

provides medical care at the prison under contract with the
state, and two of its employees, claiming that they were delib-
erately indifferent to his serious medical needs in violation of
the Eighth Amendment. The district court granted summary
judgment for the defendants, concluding that “[w]hile Arce’s
treatment does not seem completely seamless, it does not rise
to the level of deliberate indifference.” We affirm.
                               I
    Immediately after his fellow inmate kneed Arce in the
right thigh during a soccer match, Arce saw the prison’s Med-
ical Director, defendant Dr. Alberto Butalid. Dr. Butalid ex-
amined Arce and noted that his right thigh was painful, swol-
len, and tender. Concerned about a possible fracture or rup-
tured muscle, Dr. Butalid promptly sent Arce to the local
emergency room at Pinckneyville Hospital for a more thor-
ough evaluation.
    The treating physician at Pinckneyville Hospital exam-
ined Arce and became concerned that the incident might have
caused Arce to develop “compartment syndrome,” which the
parties define as a serious medical condition that “occurs
when there is increased pressure in a compartment of the
body that results in insufficient blood supply to tissue.” Com-
partment syndrome requires emergency surgery to relieve the
pressure; if surgery is not conducted, the pressure can result
in tissue death (i.e., necrosis) and permanent muscle damage.
The Pinckneyville Hospital physician transferred Arce to
Saint Louis University Hospital so that Arce could be evalu-
ated by an orthopedic specialist.
     At Saint Louis University Hospital, an orthopedic special-
ist tested Arce for compartment syndrome using a diagnostic
No. 22-1694                                                    3

tool known as a “strike test,” which involves inserting needles
into the affected area to measure the level of pressure in the
tissue. Arce’s strike test results are not in the record, nor are
any notes from the orthopedist. Arce contends that the ortho-
pedic specialist informed him that he needed to be re-tested
in two days to determine if he needed surgery. But the treat-
ing physician’s notes in Arce’s medical records do not include
that advice. Instead, they indicate only that the orthopedist
concluded that Arce was “clear for discharge” and recom-
mended a follow-up visit in one week with an outpatient pri-
mary care provider.
    Arce’s official diagnosis upon discharge was a “right thigh
contusion,” more commonly known as a bruise. The hospital
certified that Arce was “stable” and “fit for confinement.” The
discharge notes also instructed him to “[f]ollow up with Af-
finia Healthcare Murphy O’Fallon. Schedule an appointment
as soon as possible for a visit in two days.” The hospital staff
did not prescribe any medication or other treatment.
    Once back at Pinckneyville, Arce was held overnight in the
infirmary. The staff there gave him crutches, low bunk and
low galley permits, and Motrin (that is, ibuprofen) for his
pain. The next day, defendant Nurse Practitioner Bob Blum
attempted to carry out the hospital discharge instructions by
submitting an “urgent” request to Wexford that Arce be seen
in two days for a follow-up appointment at Affinia
Healthcare, the location identified in the discharge notes.
   Wexford, however, does not refer inmates to outside pro-
viders willy-nilly. It requires referrals to offsite medical pro-
viders to be approved through a process known as “collegial
review,” in which a facility’s medical director and a repre-
sentative of Wexford’s “utilization committee” review the
4                                                  No. 22-1694

patient’s medical file and the treatment request. The parties
dispute the extent to which the cost of the requested treatment
is the decisive factor in collegial review discussions, though
Wexford itself describes collegial review as a “process de-
signed to reduce offsite care costs.” Nurse Practitioner Blum
thus had to seek approval through collegial review before the
discharge instructions could be implemented. He was unsuc-
cessful. Notes from the collegial review denial indicate that
Dr. Butalid and a non-Wexford physician interpreted Nurse
Practitioner Blum’s referral as indicating that Arce was diag-
nosed with no more than a “right thigh hematoma,” and that
there was “no fracture” and “no evidence of compartment
syndrome.” On that understanding, they concluded that Arce
needed only on-site follow-up care.
    Arce’s next appointment was on June 28, 2017, with Nurse
Practitioner Blum. Arce complained of extreme pain and re-
quested something stronger than Motrin, but to no avail. Af-
ter the examination, Nurse Practitioner Blum recommended
that Arce (1) continue with crutches and Motrin, (2) be evalu-
ated for physical therapy, and (3) receive an ultrasound to
rule out deep vein thrombosis, a condition caused by a blood
clot. Nurse Practitioner Blum also renewed the request for an
orthopedic follow-up appointment to rule out compartment
syndrome. The next day, Wexford approved the ultrasound
but denied the orthopedic visit until the results from the ul-
trasound could be reviewed.
    After the ultrasound on July 7, Arce was diagnosed with a
blood clot in his right leg. He was prescribed blood thinners
to treat the clot and Motrin to relieve pain, and he was held in
the prison healthcare unit for five days to monitor his recov-
ery. On July 9, Dr. Butalid examined Arce and noted that he
No. 22-1694                                                   5

was “doing better with less pain and swelling in his right leg.”
Arce denies that those notes accurately reflect his condition at
the time and maintains that he was in fact in severe pain.
    From this point on, Arce’s treatment consisted mainly of
regular physical therapy, medications to treat the blood clot,
occasional follow-up visits at the healthcare unit, and moni-
toring to ensure that no new clot had developed.
    Meanwhile, Arce continued to complain to Wexford staff
and his physical therapist about the pain in his leg. His com-
plaints (he said) were ignored by defendants. Rather unsym-
pathetically, Nurse Practitioner Blum told him that he was
“not going to get high grade medicine here” and was “lucky
to be getting anything.” Nevertheless, the record shows that
the defendants prescribed Arce different pain medications
throughout the next year. On July 20, 2017, Dr. Butalid or-
dered Arce a one-week prescription for the narcotic Ultram,
but he did not renew the prescription. For the next few
months, Arce was offered over-the-counter drugs such as Mo-
trin and Tylenol. Eventually, Nurse Practitioner Blum sus-
pected that Arce’s pain might be neuropathic (nerve-related),
and so on October 27, 2017, he prescribed nortriptyline, a pre-
scription-only medication used to treat neuropathy.
   On November 27, 2017, a nondefendant Wexford em-
ployee sent Arce to the local emergency room because of pain
and swelling in his leg. He was discharged with no new diag-
nosis. The hospital discharge instructions recommended only
ibuprofen and naproxen—both over-the-counter anti-inflam-
matories—as needed. When Arce continued to complain of
pain, Nurse Practitioner Blum immediately increased his dos-
age of nortriptyline. At an appointment with Dr. Butalid on
March 11, 2018, Arce again complained that nortriptyline was
6                                                   No. 22-1694

not alleviating his pain. Dr. Butalid prescribed Neurontin, a
different neuropathic medication. When, a few days later, the
Neurontin prescription was denied in collegial review, it was
replaced with a prescription for duloxetine, another neuro-
pathic medication. About a month later, on April 5, 2018, Dr.
Butalid gave Arce another one-week prescription for the nar-
cotic tramadol (the generic version of Ultram).
   Eventually, Arce’s blood clot was successfully dissolved.
Arce asserts that he nonetheless has never regained his full
range of motion in his right leg and that his pain continues.
    On July 2, 2018, Arce sued Nurse Practitioner Blum, Dr.
Butalid, and Wexford for violating his Eighth Amendment
right to be free from cruel and unusual punishment through
their deliberate indifference to his serious medical condition.
(He also sued one other Wexford employee, but the district
court granted summary judgment on that claim because Arce
failed to exhaust his administrative remedies as to that de-
fendant. Arce does not pursue that claim on appeal.)
    Arce’s complaint advances four theories to demonstrate
an Eighth Amendment violation. First, he alleges that the de-
fendants failed to rule out or treat compartment syndrome as
the cause of his pain and swelling by denying him a follow-
up visit with an orthopedic specialist. Second, he asserts that
the defendants delayed his medical treatment by refusing to
provide a follow-up appointment until ten days after his ini-
tial hospital visit. Third, he argues that the defendants refused
to relieve his suffering by prescribing him stronger pain med-
ication. And fourth, he claims that Wexford’s policies of “col-
legial review” and “utilization management” operated to
deny him needed medical treatment for reasons of cost.
No. 22-1694                                                    7

    The district court granted summary judgment for the de-
fendants. It concluded that Arce had not offered any evidence
that would allow a jury to find that (1) he suffered from com-
partment syndrome, (2) the ten-day follow-up visit (rather
than a two-day or one-week follow-up) caused him any addi-
tional harm, or (3) defendants were deliberately indifferent to
his pain, given that they “prescribed a variety of pain medica-
tions upon complaints from Arce over the course of his treat-
ment—including nerve pain medication and narcotics.” As
for Wexford, the court concluded that there was no evidence
“to suggest that Arce’s specific needs were disregarded solely
because of costs.” Arce appealed.
                               II
   We evaluate de novo a district court’s grant of summary
judgment, construing all facts and inferences in the light most
favorable to the nonmoving party. Cyrus v. Town of
Mukwonago, 

 (7th Cir. 2010). Summary judg-
ment is proper “if the movant shows that 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).
    “The Eighth Amendment proscribes ‘deliberate indiffer-
ence to serious medical needs of prisoners’ amounting to ‘the
unnecessary and wanton infliction of pain.’” Stockton v. Mil-
waukee County, 

 (7th Cir. 2022) (quoting Estelle
v. Gamble, 

 (1976)). It is common ground for
present purposes that Arce’s leg injury and subsequent blood
clot were serious medical conditions. The remaining question
is whether Arce has presented enough evidence to permit a
trier of fact to conclude that the defendants were deliberately
indifferent in treating these conditions and that their alleg-
edly inadequate care caused him harm. See 

8                                                     No. 22-1694

    Deliberate indifference requires “[s]omething more than
negligence or even malpractice.” Pyles v. Fahim, 

 (7th Cir. 2014). Proving deliberate indifference can be dif-
ficult in situations where a medical professional has provided
at least some treatment in response to a plaintiff’s complaints.
But “we have rejected the notion that the provision of some
care means the doctor provided medical treatment which
meets the basic requirements of the Eighth Amendment.” Pet-
ties v. Carter, 

 (7th Cir. 2016) (en banc). More
is necessary. For example, a plaintiff may show deliberate in-
difference by showing that a medical professional’s decision
“is such a substantial departure from accepted professional
judgment, practice, or standards as to demonstrate that the
person responsible actually did not base the decision on such
judgment.” Johnson v. Rimmer, 

 (7th Cir. 2019)
(quoting Youngberg v. Romeo, 

 (1982)). And
even if a defendant eventually pursues an acceptable course
of treatment, she still may violate the Eighth Amendment if
she is deliberately indifferent to an unjustifiable delay that
“exacerbated the inmate’s injury or unnecessarily prolonged
his pain.” Perez v. Fenoglio, 

, 777–78 (7th Cir. 2015).
   With these guideposts in mind, we turn to Arce’s claims
against the two individual defendants, Nurse Practitioner
Blum and Dr. Butalid.
                                A
   Arce first asserts that he suffered from compartment syn-
drome and that defendants’ failure to diagnose and treat this
condition caused his long-term leg injury. But after five years
and numerous visits to various health professionals (Wexford
and non-Wexford alike), Arce has no evidence that this is the
case. Nothing in the record aside from his lay speculation
No. 22-1694                                                    9

indicates that he experienced tissue necrosis in his right thigh,
which the parties agree is the primary consequence of un-
treated compartment syndrome. Nor does Arce proffer any
expert testimony or the results of any medical exam opining
that his symptoms are consistent with untreated compart-
ment syndrome. All he has is his own testimony that the or-
thopedist who examined him at St. Louis University Hospital
thought that he would benefit from further testing for that
condition. Even if that is what the doctor said, however, this
falls well short of evidence that Arce actually had compart-
ment syndrome. Defendants cannot be held liable for failing
to diagnose Arce with a condition unless there is at least some
evidence upon which a reasonable jury could conclude that
Arce had it.
    The rest of the case unravels with that critical preliminary
problem. Arce has not shown that defendants acted with de-
liberate indifference by denying the recommended two-day
follow-up appointment at Affinia Healthcare. Nurse Practi-
tioner Blum submitted an urgent request for this follow-up
appointment at least twice, but he lacked the authority to ar-
range for offsite care without Wexford’s approval. And Arce
fails to explain why Nurse Practitioner Blum’s attempts to se-
cure the follow-up appointment were so inadequate as to
amount to deliberate indifference.
   As for Dr. Butalid, Arce fails to show that his denial of the
requested two-day follow-up appointment was “such a sub-
stantial departure from accepted professional judgment,
practice, or standards as to demonstrate that [he] actually did
not base the decision on such judgment.” Johnson, 

. The record shows that Dr. Butalid believed that there was
“no evidence of compartment syndrome.” Nothing in the
10                                                  No. 22-1694

record suggests that Dr. Butalid’s understanding of the situa-
tion was incorrect or that he was subjectively aware that
Arce’s condition was more serious than a badly bruised thigh.
Nor is there any evidence that his decision to deny an urgent
follow-up with an outside specialist amounted to “a substan-
tial departure from accepted professional judgment.” Johnson,
936 F.3d at 706–07. To the contrary, the record suggests that
at least one other doctor (the emergency room physician who
oversaw Arce’s care at St. Louis University Hospital) also be-
lieved that a follow-up appointment with a primary care pro-
vider in one week was sufficient.
   In sum, Arce has provided no evidence from which a rea-
sonable jury could conclude that he suffered from compart-
ment syndrome or that defendants were deliberately indiffer-
ent in failing to diagnose him with that condition.
                               B
   Relatedly, Arce alleges that defendants violated the Eighth
Amendment by failing to provide follow-up care until ten
days after his initial hospital visit. Delay of medical care, in-
cluding follow-up appointments, can amount to an Eighth
Amendment violation in certain circumstances. See Zaya v.
Sood, 

, 805–06 (7th Cir. 2016). But Arce does not
provide any evidence from which a reasonable jury could
conclude that a ten-day wait for follow-up care was unreason-
able for a patient diagnosed with a bruise on the right thigh.
    If Arce was indeed experiencing compartment syndrome,
his allegations of delay may have had more merit because of
the time-sensitive nature of that condition. But as discussed
above, the compartment-syndrome theory is a nonstarter.
And Arce offers no other evidence to suggest that a wait of ten
No. 22-1694                                                     11

days was a radical departure from “accepted professional
practice” such that “a jury may infer from the treatment deci-
sion itself that no exercise of professional judgment actually
occurred.” 

 at 805 (citing Pyles, 

). Even if this
was somewhat longer than the period recommended by the
hospital staff, Arce must do more than show a mere difference
of opinion among doctors. See Pyles, 

 (“Disa-
greement … between two medical professionals[ ] about the
proper course of treatment generally is insufficient, by itself,
to establish an Eighth Amendment violation.”).
    Furthermore, Arce’s delay theory fails for another reason:
he provides no evidence that the ten-day gap in medical care
caused him some harm that could have been avoided had the
follow-up been sooner. See Williams v. Liefer, 

,
714–15 (7th Cir. 2007) (“In cases where prison officials delayed
rather than denied medical assistance to an inmate,” a plain-
tiff must show “that the delay (rather than the inmate’s un-
derlying medical condition) caused some degree of harm.”).
To the extent that Arce complains about other alleged delays
throughout his treatment, those theories suffer from the same
fatal flaw.
                                C
    Arce next argues that defendants violated the Eighth
Amendment by failing to prescribe him more potent painkill-
ers. The constitutional prohibition on inflicting unnecessary
and wanton pain requires medical officials who know that an
incarcerated patient is suffering to take “reasonable
measures” to alleviate that pain. See Arnett v. Webster, 

, 753–54 (7th Cir. 2011). But the Eighth Amendment
does not entitle incarcerated patients to their preferred pain
medication, 

, nor does it impose the unrealistic
12                                                    No. 22-1694

requirement that doctors keep patients completely pain-free,
Snipes v. DeTella, 

 (7th Cir. 1996). There are
many reasons for doctors to tread carefully when prescribing
strong pain medications. See 

 (“The administration
of pain killers requires medical expertise and judgment. Us-
ing them entails risks that doctors must consider in light of
the benefits.”). To survive summary judgment, Arce must
provide some evidence from which a reasonable jury could
conclude that defendants were deliberately indifferent to his
pain. This might include evidence that defendants “per-
sist[ed] in a course of treatment known to be ineffective,” Ma-
chicote v. Roethlisberger, 

 (7th Cir. 2020), or ev-
idence that defendants’ recommended course of treatment
was “so far afield of accepted professional standards as to
raise the inference that it was not actually based on a medical
judgment.” Arnett, 

 (quoting Duckworth v. Ah-
mad, 

 (7th Cir. 2008)).
    The record here lacks any such evidence. This is not a case
where defendants failed to provide any pain relief whatso-
ever. In the year after Arce’s injury, Arce was prescribed Mo-
trin (and its generic, ibuprofen), Tylenol, Ultram (and its ge-
neric, tramadol), nortriptyline, Neurontin, and duloxetine to
address his pain. This is not a case where defendants com-
pletely refused to respond to Arce’s complaints that the med-
ication he was receiving was ineffective. The record shows
quite the opposite: Nurse Practitioner Blum and Dr. Butalid
repeatedly altered Arce’s pain medication in response to his
complaints. In addition, they successfully diagnosed and
treated his blood clot, which they believed to be the major un-
derlying medical condition causing his pain.
No. 22-1694                                                   13

    In short, this record lacks evidence that would permit a
jury to conclude that the defendants’ response to Arce’s pain
was so “blatantly inappropriate” that it demonstrated delib-
erate indifference. Pyles, 

. Moreover, there is no
expert testimony or other evidence that suggests that “no
minimally competent professional” would have acted as de-
fendants did. Sain v. Wood, 

 (7th Cir. 2008)
(quoting Collignon v. Milwaukee County, 

 (7th
Cir. 1998)). To the contrary, both times Arce was treated by
non-Wexford hospital staff, he was given only over-the-coun-
ter medications for his pain. Because Arce has failed to pro-
vide evidence that defendants’ responses to his complaints of
severe pain were inadequate, his Eighth Amendment claim
fails.
                               D
     Finally, Arce argues that Wexford’s system of collegial re-
view and its policy of requiring its medical providers to prefer
certain medications violated the Eighth Amendment because
it led to the denial of his outside follow-up appointment and
certain pain medications.
    We analyze Arce’s claim against Wexford under the frame-
work set out in Monell v. Department of Social Services, 

 (1978). “Monell governs Wexford’s liability in this case be-
cause we, like our sister circuits, treat private corporations
acting under color of state law as municipalities.” Dean v.
Wexford Health Sources, Inc., 

, 235 (7th Cir. 2021).
   Even if we were to agree with Arce that Wexford was
aware that its policies created a substantial risk of depriving
inmates of adequate medical care, Arce cannot prevail, be-
cause no jury could find that he was harmed by Wexford’s
14                                                 No. 22-1694

policies. As discussed above, Arce provides no evidence that
the medical treatment he received in response to his initial leg
injury, his subsequent blood clot, and his ongoing pain was
inadequate. Arce’s claim against Wexford therefore fails. See
Gabb v. Wexford Health Sources, Inc., 

 (7th
Cir. 2019) (affirming summary judgment for Wexford where
the plaintiff could not show that he had suffered harm as a
result of his medical treatment in prison).
                              III
    We AFFIRM the district court’s grant of summary judgment
for the defendants.