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Seventh Circuit: Two-month Delay in Ordering Biopsy Not Deliberate Indifference

by Christopher Zoukis

The Court of Appeals for the Seventh Circuit ruled on October 12, 2016 that a two-month delay in ordering a biopsy of a prisoner’s potentially cancerous masses did not constitute deliberate indifference to his serious medical needs.

Calvin Whiting was incarcerated at the Shawnee Correctional Center in Vienna, Illinois in October 2010 when he developed pain in his jaw, left ear and groin, as well as nodules in those areas. He sought treatment, was diagnosed with an ear infection and received antibiotics and Motrin.

A week later, Whiting reported worsening pain and a rash. He was given a different antibiotic by a nurse, X-rays were ordered and he was scheduled to see the institutional physician, Dr. Alfonso David.

Dr. David examined Whiting and ordered blood work. He also submitted a biopsy request to the “Collegial Review Committee,” which consisted of himself and one other doctor. The committee denied the biopsy request and decided on further treatment with antibiotics and, of course, more over-the-counter Motrin.

Two months after presenting with his concerning symptoms, the biopsy request was approved and the results were tragic. Whiting was suffering from Stage IV SLK positive anaplastic large cell lymphoma, a rare and aggressive form of non-Hodgkin’s lymphoma.

Whiting sued Dr. David and Wexford Health Sources, the facility’s private health care provider. He alleged that his Eighth Amendment rights had been violated as a result of deliberate indifference to his serious medical needs.

The district court and the Seventh Circuit both agreed that Whiting failed to provide evidence of Dr. David’s deliberate indifference. The appellate court noted that a “prison official is deliberately indifferent only if he ‘knows of and disregards an excessive risk to inmate health or safety.’” That is a subjective standard, meaning the plaintiff must provide evidence that the defendant not only could infer that a substantial risk of harm existed, but in fact made that inference.

Establishing medical negligence is not enough to constitute deliberate indifference, because it implies that the defendant did make a treatment decision, albeit the wrong one. But if a plaintiff can produce evidence that the “defendant[] knew better than to make the medical decision[] that he did,” it would raise a jury question as to whether the defendant was deliberately indifferent.

Whiting provided no such evidence from medical experts. Almost every case involving allegations of deliberate indifference to a serious medical need requires expert testimony to survive summary judgment.

“[Because] no expert testified that Dr. David’s chosen course of treatment was a substantial departure from accepted medical judgment, and the decision was not so obviously wrong that a layperson could draw the required inference about the doctor’s state of mind without expert testimony,” summary judgment for the defendants was proper, the appellate court wrote.

Further, Whiting’s claim against Wexford failed because he was unable to prevail on his Monell claim by showing the company had a policy, practice or custom that resulted in the violation of his rights. “Wexford is a private corporation, but we’ve held that the Monell theory of municipal liability applies in § 1983 claims brought against private companies that act under color of state law,” the Seventh Circuit stated. One judge issued a dissenting opinion. See: Whiting v. Wexford Health Sources, Inc., 839 F.3d 658 (7th Cir. 2016).

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Related legal case

Whiting v. Wexford Health Sources, Inc.