Calvin Whiting v. Wexford Health Sources, Incorp, et al
Filed opinion of the court by Judge Sykes. AFFIRMED. Diane P. Wood, Chief Judge, dissenting; William J. Bauer, Circuit Judge and Diane S. Sykes, Circuit Judge. [6789783-1]  [15-1647]
United States Court of Appeals
For the Seventh Circuit
WEXFORD HEALTH SOURCES, INC.,
and ALFONSO DAVID,
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 2917 — Elaine E. Bucklo, Judge.
ARGUED OCTOBER 26, 2015 — DECIDED OCTOBER 12, 2016
Before WOOD, Chief Judge, BAUER and SYKES, Circuit
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.
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)
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
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
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 stemcell 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
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
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
The suit named other defendants as well, but Whiting did not pursue
his claims against them.
Monell v. Department of Social Services, 436 U.S. 658 (1978).
The district judge accepted these arguments and entered
judgment for the defendants.
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 (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 (1976) (quoting Gregg v. Georgia,
428 U.S. 153, 173 (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 (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,
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 (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 (“Medical malpractice does not become a constitutional violation merely
because the victim is a prisoner.”); Petties, 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 deliber-
ate 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.
Zaya v. Sood, No. 15-1470, 2016 WL 4621045, at *3 (7th Cir.
Sept. 6, 2016).
On the other hand, “where evidence exists that the defendant knew better than to make the medical decision
that [he] did,” then summary judgment is improper and the
claim should be submitted to a jury. Petties, 2016 WL
4631679, at *5. State-of-mind evidence sufficient to create a
jury question might include the obviousness of the risk from
a particular course of medical treatment, id. at *4; the defendant’s persistence in “a course of treatment known to be
ineffective,” id.; or proof that the defendant’s treatment
decision departed so radically from “accepted professional
judgment, practice, or standards” that a jury may reasonably
infer that the decision was not based on professional judgment, id. (quotation marks omitted).
No evidence in this case supports an inference that
Dr. David “knew better” than to pursue the course of treatment that he did. He explained in his deposition that alt-
hough he considered the possibility of lymphoma, he
thought Whiting had an infection and treated him for that
condition, putting off an invasive biopsy until it was clear
that aggressive antibiotic treatment wasn’t working. Whiting
argues that Dr. David’s decision on November 1 to try two
more antibiotics when the first two were ineffective is sufficient for a jury to infer that the doctor was deliberately
indifferent. But 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.
Our decision in Duckworth is instructive on this point.
There we confronted a claim that two prison physicians
should have ordered a cystoscopy to rule out bladder cancer
as soon as they noticed blood in the plaintiff’s urine. The
first physician didn’t suspect cancer; the second physician
was aware of the cancer risk but thought that the plaintiff
had another condition and pursued a course of treatment
consistent with that diagnosis. 532 F.3d at 680–81. The
plaintiff provided expert testimony from an experienced
urologist that cancer should always be ruled out when a
patient has blood in his urine. Id. at 681. We held that the
expert’s testimony showed only “how a reasonable doctor
would treat Duckworth’s symptoms, but it [did] not shed
any light into [the defendant’s] state of mind.” Id. In other
words, it “just … reiterate[d] the standard for medical
malpractice, which falls short of deliberate indifference.” Id.
The evidence here falls even further short of what’s required. Whiting doesn’t have any expert testimony indicating that Dr. David’s infection diagnosis and concomitant
treatment plan departed from accepted medical practice,
much less substantially so.
Whiting compares his case to Hayes v. Snyder, 546 F.3d
516 (7th Cir. 2008), but the similarities are superficial. The
prison physician in Hayes gave the plaintiff an antibiotic and
Tylenol III for obvious and excruciatingly painful testicular
cysts; he also refused to authorize a referral to a specialist.
Unlike this case, the plaintiff in Hayes produced considerable
evidence showing that the physician’s choice of treatment
was not based on a mere mistake in professional judgment.
For example, the physician—the medical director at the
prison—acknowledged in his deposition that other prison
doctors who saw the plaintiff ordered prescription-strength
pain medication and a referral to a specialist. Id. at 524. The
defendant’s approval was required before these steps could
be taken, but he “refused to give that approval,” asserting an
after-the-fact justification that he didn’t have the proper
paperwork. Id. He also claimed, implausibly, that he
“wouldn’t know which specialist to send [the plaintiff] to”
without more clinical information. Id. at 526. We concluded
on these facts that the evidence was sufficient for a fact
finder to conclude that the doctor was subjectively indifferent to the plaintiff’s medical needs. Id.
Here, in contrast, the record contains no evidence from
which a jury could infer that Dr. David was subjectively
indifferent to Whiting’s condition—in short, that Dr. David
knew that the additional antibiotics would be ineffectual but
persisted in this course of treatment anyway. Without expert
testimony a lay jury could not infer that because amoxicillin
and Bactrim did not work, it was obvious to Dr. David that
the doxycycline and Augmentin also would fail. To survive
summary judgment Whiting needed to present evidence
sufficient to show that Dr. David’s decision was “so far
afield of accepted professional standards as to raise the
inference that it was not actually based on a medical judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006).
He did not do so. The district court properly granted summary judgment for Dr. David.
Whiting’s claim against Wexford meets the same fate.
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. Shields v. Ill. Dept. of Corr., 746 F.3d 782 (7th Cir.
2014) (noting every circuit court that has addressed the issue
has extended the Monell standard to private corporations
acting under color of state law). To prevail on his Monell
claim, Whiting needs to show that Wexford’s policy, practice, or custom, caused a constitutional violation. Thomas v.
Cook Cty. Sheriff’s Dep’t, 604 F.3d 294, 303 (7th Cir. 2009). This
requirement can be satisfied by evidence that “an official
with final policy-making authority” acted for the corporation. Id. That’s the theory Whiting invokes on appeal: He
argues that Dr. David was a final policymaker for Wexford.
But Whiting’s filings in the district court weren’t entirely
clear on this point, so the argument is probably waived.
Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 480 (7th Cir.
2010). Waiver aside, the claim fails on the merits for two
First, Dr. David did not have final policymaking authority in the relevant sense. He may have had the final say on
Whiting’s treatment plan and thus was the final decisionmaker with respect to his care, but that’s not nearly enough
to show he was the final policymaker. See Valentino v. Village of
South Chicago Heights, 575 F.3d 664, 675 (7th Cir. 2009) (noting difference between having decision-making authority for
some decisions and having the responsibility “for establishing final government policy on a particular issue”).
Second, Whiting’s theory of Monell liability is contingent
on a finding that Dr. David, the ostensible final policymaker,
was individually liable for deliberate indifference. Our
decision in Thomas makes clear that Monell liability does not
always require a finding of individual liability. 604 F.3d at
305. But if the plaintiff’s theory of Monell liability rests
entirely on individual liability, as Whiting’s does here,
negating individual liability will automatically preclude a
finding of Monell liability. Id.
WOOD, Chief Judge, concurring in part and dissenting in
part. Calvin Whiting is suffering from a deadly disease: a rare
form of non-Hodgkin’s lymphoma. The Mayo Clinic’s website
describes this as “a cancer that originates in your lymphatic
system,” and then spreads throughout the body. See NonHodgkin’s
http://www.mayoclinic.org/diseases-conditions/non-hodgkins-lymphoma/basics/definition/con-20027792 (last visited
Oct. 12, 2016). Whiting fell ill while he was serving a sentence
in Illinois’s Shawnee Correctional Center for a probation violation, and so of necessity he turned for help to the prison doctors. Dr. Alfonso David, the medical director at Shawnee and
an employee of Wexford Health Sources, Inc., the company
that holds the contract for medical services at that institution,
was Whiting’s treating physician.
It took Dr. David almost two months from Whiting’s first
visit to the infirmary in mid-October 2010 to get approval for
a biopsy of nodules in Whiting’s swollen lymph nodes, even
though he had power to order one if he deemed it an “emergency.” Despite the fact that Whiting presented not only with
pain in his left jaw and his ear, but also with nodules and pain
in his groin, a nurse at Shawnee thought he had an ear or
throat infection and gave him amoxicillin (plus Motrin for his
pain). The amoxicillin caused a rash, and so a few days later
Dr. David switched him to Bactrim and ordered chest and abdominal x-rays. Those results showed enlarged cervical
(neck) nodes and a mass in Whiting’s left jawbone. Whiting
was also complaining of severe pain. It was then that Dr. David suggested a biopsy of the nodules to a second colleague,
who vetoed that course. (Defendants describe this as submission to a “review committee,” but that is a bit grandiose for a
simple process through which one doctor consults with a second and allows the second to override his recommendation.)
During November and December, Dr. David continued
with the fruitless course of antibiotics, although he changed
the particular drugs to doxycycline and Augmentin. In early
December, he again suggested a biopsy to the other colleague.
This time the two agreed to order the biopsy. It was performed
on December 21 and revealed that Whiting had Stage IV SLK
positive anaplastic large cell lymphoma. (A group called the
Lymphoma Research Foundation describes this as a rare type
of aggressive T-cell lymphoma, which can progress rapidly
without treatment. See LYMPHOMA RESEARCH FOUNDATION,
&b=6293639 (last visited Oct. 12, 2016).) Whiting began chemotherapy at that point and has continued his battle with cancer, cycling between remission and relapse.
Focusing only on the two months between his first visit to
Dr. David and the start of his chemotherapy, Whiting sued
both Dr. David and Wexford, contending that the care he received violated his Eighth Amendment right to be free from
cruel and unusual punishment. See Estelle v. Gamble, 429 U.S.
97 (1976). During that period, he contends, he was in severe
pain and his cancer was going untreated. Dr. David knew that
Whiting was suffering and that a biopsy was necessary, yet he
proceeded on a “business as usual” basis. Dr. Nancy Bartlett,
who treated Whiting later at Barnes Jewish Hospital in St.
Louis, described this delay in treatment as “cruel and unusual.” Whiting’s treating oncologist after his release from
Shawnee, Dr. Justin Kline, said much the same thing. Dr. Kline
opined that if chemotherapy had been started right away, it
would have had two desirable effects: alleviation of Whiting’s
pain and destroying the cancer. He also declared that Whiting
“would not have experienced the pain he did between October 27, 2010, and January 2011” if the biopsy had been performed when Dr. David first mentioned that possibility.
The district court granted summary judgment for both defendants, and my colleagues have voted to affirm. I agree with
them that Whiting’s case against Wexford was properly rejected, but, without taking any position on the ultimate outcome, I would reverse and remand for further proceedings
against Dr. David.
It is well established that a prisoner asserting an Eighth
Amendment claim based on the medical care he received
must show two things: first, that he has a serious medical
need, and second that the defendant was deliberately indifferent—not merely negligent or oblivious—to his needs. Gamble, 429 U.S. at 104; see also Farmer v. Brennan, 511 U.S. 825, 835
(1994). I focus here only on the subjective element of the test,
because all members of this panel agree with the district court
that there was enough evidence to reach a jury on the objective element. This is the same type of case as the one we considered in Petties v. Carter, No. 14-2674, 2016 WL 4631679 (7th
Cir. Aug. 25, 2016) (en banc), in which the inmate received
some medical care, but the facts permit more than an inference
of medical malpractice—they permit an inference of deliberate indifference.
The critical point that Petties established is that the furnishing of some care does not automatically defeat an Eighth
Amendment claim (raised through the Fourteenth Amendment for a state prisoner). Instead, as Petties held, it is essential
to “look at the totality of an inmate’s medical care when considering whether that care evidences deliberate indifference
to serious medical needs.” Id. at *3. We went on to say that
“[i]f a risk from a particular course of medical treatment (or
lack thereof) is obvious enough, a factfinder can infer that a
prison official knew about it and disregarded it.” Id. Acknowledging that the line between (minimally) competent
medical judgment and deliberate indifference can be difficult
to draw, we gave several examples of situations in which a
finding of an Eighth Amendment violation is possible. At
least two of them fit Whiting’s allegations: “[persistence] in a
course of treatment known to be ineffective,” id. at *4, and the
choice of “an easier and less efficacious treatment without exercising professional judgment,” id. at *5 (internal quotation
marks omitted). We summarized the central point as follows:
[R]epeatedly, 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.
Rather, the context surrounding a doctor’s treatment decision can sometimes override his
claimed ignorance of the risks stemming from
that decision. When a doctor says he did not realize his treatment decisions (or lack thereof)
could cause serious harm to a plaintiff, a jury is
entitled to weigh that explanation against certain clues that the doctor did know.
In my view, the rule most recently reaffirmed in Petties
(dating back to Gamble) governs Whiting’s case. It would be
possible on this record for a jury to conclude that Dr. David
was exercising his medical judgment over the critical period,
even if that judgment was mistaken or even negligent. He saw
Whiting on several occasions; he tried various antibiotics,
which he says he regarded as conservative responses to Whiting’s symptoms, and the antibiotic treatments at times seemed
to be having some positive effect. He did not perceive Whiting’s situation to be an emergency, and so he did not exercise
his limited authority to order a biopsy on his own. Instead, he
invoked the “Collegial Review Committee” process described
But that is not the only inference that is possible from these
facts. Whiting has brought forth evidence that would permit
a trier of fact to infer deliberate indifference. No one, Dr. David included, paid any attention to the fact that nodules were
not limited to Whiting’s neck and face, but instead were also
in his groin. A jury could conclude that Dr. David paid no
heed to the fact that the antibiotics and Motrin he was prescribing for Whiting’s pain were, by Whiting’s account, utterly
ineffective. Had he checked the medical records, he would
have seen that Whiting repeatedly informed Shawnee’s medical unit that he was in extreme pain. In McGowan v. Hulick,
612 F.3d 636 (7th Cir. 2010)—decided before Whiting’s first
complaint about nodules in his left jaw and groin, and accompanying pain—we reaffirmed that “[a] delay in treatment
may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate’s
pain.” Id. at 640 (citing Gamble, 429 U.S. at 104–05); Gayton v.
McCoy, 593 F.3d 610, 619 (7th Cir. 2010); and Edwards v. Snyder,
478 F.3d 827, 832 (7th Cir. 2007). See also Petties, 2016 WL
4631679 at *5; Arnett v. Webster, 658 F.3d 742, 753 (7th Cir.
2011). A delay when the physician recognizes that the condition may be life-threatening (as Dr. David did, given his initial
request for a biopsy) is even more troublesome. Perhaps if Dr.
David had tried one or two courses of antibiotics before moving to more serious measures, this case would be different.
But a jury could find that it was apparent by the time the third
and fourth antibiotics were tried that this course of treatment
was ineffective for both the underlying condition and the
Finally, the existence of the so-called collegial review
mechanism does not compel summary judgment in favor of
Dr. David. It is, in effect, a device to obtain a second opinion.
As the record presently stands, it is unclear whether the second doctor’s “no” automatically trumps the treating physician’s judgment that a procedure is necessary (a situation that
would undermine a finding of deliberate indifference on the
first doctor’s part), or if the second doctor just has an opportunity to persuade the first doctor to reconsider his opinion.
The former does not strike me as “collegial,” and the latter is
not something that deserves to be called a “review.” Nothing
reveals whether, or why, Dr. David changed his mind about
the need for a biopsy at the end of October. Taking the facts
and reasonable inferences from them in the light most favorable to Whiting, I must assume that Dr. David saw no reason
to invoke his authority to override the second doctor and obtain a biopsy on an urgent basis. A jury would be entitled to
infer deliberate indifference to Whiting’s serious medical
need on the basis of those facts.
Looking at the record as a whole in the light most favorable to Whiting, I conclude that summary judgment in Dr. David’s favor should not have been granted. I therefore dissent
to that extent and would order further proceedings on this
part of the case.
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