Knight v. Grossman
Filing
55
DECISION AND ORDER signed by Magistrate Judge William E Duffin on 3/21/2019 GRANTING 34 Defendant's Motion for Summary Judgment; finding as moot 40 Defendant's Motion to Exclude. This case is dismissed. Judgment to be entered accordingly. (cc: all counsel) (lz)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEWAYNE KNIGHT,
Plaintiff,
v.
Case No. 16-CV-1644
DR. THOMAS GROSSMAN, JR.,
Defendant.
DECISION AND ORDER
Plaintiff DeWayne Knight is proceeding against defendant Dr. Thomas
Grossman, Jr., on a claim that Dr. Grossman violated his Eighth and Fourteenth
Amendment rights. Specifically, he claims that Dr. Grossman was deliberately
indifferent to his serious medical need and violated his Fourteenth Amendment
substantive due process rights by failing to get informed consent to perform a
surgical procedure. The court recruited pro bono counsel to help Knight draft an
amended complaint and then to represent him through discovery and summary
judgment. Dr. Grossman has moved for summary judgment.
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331
because the matter arises under federal statutes. Venue is proper under 28 U.S.C.
§ 1391. The parties have consented to United States magistrate judge jurisdiction
pursuant to 28 U.S.C. § 636(c) and General Local Rule 73 (E.D. Wis.).
1. Summary Judgment Standard
“The court shall grant summary judgment 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); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v.
Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are
those under the applicable substantive law that “might affect the outcome of the
suit.” See Anderson, 477 U.S. at 248. A dispute over “material fact” is “genuine” if
“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4).
2
2. Relevant Facts
This section is taken from both Knight’s responses to Dr. Grossman’s
proposed findings of fact and Dr. Grossman’s responses to Knight’s proposed
findings of fact. (ECF Nos. 47 and 54.)
At all times relevant, Dr. Grossman was licensed to practice medicine as an
orthopedic surgeon in the state of Wisconsin. (ECF No. 47, ¶ 1; ECF No. 54, ¶ 1.) He
was employed by Agnesian Healthcare at the time he performed the surgery at
issue in this case. (ECF No. 47, ¶ 2.) Agnesian, which ran Waupun Memorial
Healthcare, and the Wisconsin Department of Corrections (DOC) had a contract to
provide medical care to DOC inmates. (Id., ¶¶ 94, 95, 106; ECF No. 54, ¶ 4.) Nearly
80 percent of Dr. Grossman’s practice consisted of inmates of the DOC. (Id., ¶ 4.)
The care of DOC inmate patients by outside consultant providers—like Dr.
Grossman—is scheduled and approved by the inmate patient’s DOC medical care
provider. (ECF No. 47, ¶ 79.) Any medical “orders” Dr. Grossman issues in
conjunction
with
his
care
of
a
DOC
inmate
patient
are
viewed
as
“recommendations” by the DOC, which might be implemented, ignored, or changed
by an inmate patient’s DOC medical provider at that provider’s discretion. (Id.,
¶ 84.) Once an inmate patient is discharged and returned to the care of the DOC,
the outside consultant has no further control over the care provided to that inmate
patient. (Id., ¶ 80.)
Knight saw Dr. Grossman for the first time on October 14, 2009, after
injuring his knee playing basketball. (ECF No. 47, ¶ 6; ECF No. 54, ¶ 2.) After
3
examination, Dr. Grossman offered Knight an elective knee surgery to reconstruct
his anterior cruciate ligament (ACL). (ECF No. 47, ¶¶ 6-7.) Dr. Grossman referred
Knight back to his institution for surgery approval. (Id., ¶ 10.) Knight did not see
Dr. Grossman again until July 8, 2010, when his DOC care providers referred him
back for follow up. (Id., ¶ 11.) Dr. Grossman reviewed the previously taken MRI
study and examined Knight; he again concluded that ACL surgery was appropriate.
(Id., ¶ 12; ECF No. 54, ¶ 5.) This time, Knight was approved for surgery, which took
place at Waupun Memorial Hospital on July 26, 2010. (ECF No. 47, ¶¶ 14-15.)
Knight says he had no residual pain or other problems with his knee until
2012. (ECF No. 54, ¶¶ 6-7.) Knight saw Dr. Grossman again on February 14, 2013,
after being referred by his DOC medical providers for complaints of unsteadiness
and popping in the knee after coming “down in an awkward way” while playing
basketball in August 2011. (ECF No. 47, ¶¶ 21-22.) After reinjuring his knee,
Knight underwent some conservative treatment, including physical therapy. (Id., ¶
23.) When Knight saw Dr. Grossman in February 2013, Dr. Grossman ordered xrays, performed a physical exam, and concluded that Knight had a torn ACL
revision. (Id., ¶¶ 24-25.) He did not order an MRI. (ECF No. 54, ¶ 8.) Dr. Grossman
offered Knight an elective revision procedure. (ECF No. 47, ¶ 25.) Dr. Grossman
discussed Knight’s graft options—allograft versus autograft—and offered no
promises or guarantees that it would completely resolve his complaints. (Id., ¶ 27;
see also ECF No. 54, ¶¶ 9-10.) In addition, Dr. Grossman offered his typical
4
preoperative patient discussion, which, although not verbatim, would have been
something like the following:
I think you have an ACL tear. Nothing needs to be done. If we don’t do
anything, you will not die, and your leg will not fall off. This will be the
way that it is. If you’d like to, there is an elective operation. It has
risks which are separate and distinct from that of the anesthetic. The
risks include, but are not limited to, bleeding, infection, damage to
nerves and blood vessels, scar, swelling, stiffness, inability to relieve
your complaints and the need for further interventions. I am not going
to offer any specific promises or make any guarantees. If you’d like me
to do this, I would be very interested in doing it for you. I will do the
best I can. I will take care of you for as long as you want me to, but
that’s it. Surgeons don’t make any promises, and I don’t promise
myself lunch anymore.
(ECF No. 47, ¶ 28.)
When Knight told Dr. Grossman that he wanted to proceed with the surgery
(the autograft procedure), Dr. Grossman referred him back to his institution for
DOC approval. (ECF No. 47, ¶ 29; ECF No. 54, ¶ 11.) Knight returned to Dr.
Grossman on May 13, 2013, for the surgery. (ECF No. 47, ¶ 30.) As of that date,
Knight had degenerative disc disease (particularly, patellofemoral joint disease) in
his left knee, which can cause pain, stiffness, “grinding,” “crushing,” “clicking,” and
“popping,” as well as difficulty squatting and bending. (Id., ¶¶ 31-34.) Patients
might also experience anterior knee pain, quadriceps weakness, and knee
instability. (Id., ¶ 35.)
Before surgery, Knight signed a consent form in which he consented to the
following:
I hereby authorize Thomas Grossman, M.D. and whomever they might
designate as their assistants, to perform upon myself, DeWayne
Knight, the following procedures: Revision left anterior cruciate
5
reconstruction with donor site from right knee and to do such other
diagnostic and therapeutic procedures as are in his/her and/or their
professional judgment necessary and desirable. This includes but is not
limited to procedures involving anesthesia, radiology and pathology. If
any unforeseen conditions arise in the course of this procedure which
in the professional judgment of the physician listed above requires
procedures in addition to or different from those now contemplated, I
further request and authorize them to do whatever is deemed
necessary and advisable.
(ECF No. 47, ¶¶ 36, 38; see also ECF No. 54, ¶ 12.) The contemplated surgery, an
ACL revision in the left knee, required both of Knight’s knees to be opened
surgically and healthy tissue harvested from his unaffected right knee implanted in
his damaged left knee. (ECF No. 47, ¶ 40.)
Once Dr. Grossman started the surgery, he found that Knight’s ACL was not,
in fact, torn. (ECF No. 47, ¶ 42.) Rather, he found a “constellation of pathology” that
included grade three changes in the trochlea, significant patellar osteophytosis, and
dense stenosis on the lateral side on the intercondylar notch with a small bone
fragment that were consistent with degenerative joint disease or arthritis. (Id.,
¶¶43-44; ECF No. 54, ¶ 13.) Dr. Grossman was aware that these findings would
explain the symptoms of which Knight complained, including pain, clicking, and
popping in the knee. (ECF No. 47, ¶ 45.) Knight’s previous injury as a teenager
made it more likely that he would experience degenerative joint changes. (Id., ¶¶4647.)
Dr. Grossman knew, based on his experience as an orthopedic surgeon, that
the pathology he observed for the first time intraoperatively could be addressed
through a series of arthroscopic surgical procedures, performed through the two
6
small incisions (approximately four to five millimeters in length) that were already
in use. (ECF No. 47, ¶ 48.) He had to choose between attempting to address the
observed pathology or closing the knee surgically and returning Knight to his
institution, with the pathology unaddressed. (Id., ¶ 52.) In deciding what to do, Dr.
Grossman considered the fact that, because Knight was in DOC custody, Dr.
Grossman could not control when or if Knight would again have access to surgery.
(ECF No., 47 ¶ 53.) He decided to move forward, performing a chondroplasty of the
trochlea, revision notchplasty, and abrasion arthroplasty of the patella. (Id., ¶ 49;
ECF No. 54, ¶ 14.) Dr. Grossman did not conduct a separate informed consent
discussion or explanation of the procedures with Knight before doing so. (ECF No.
54, ¶ 19.) Dr. Grossman cleaned loose cartilage flaps and abraded the damaged
surface. (Id., ¶ 18.)
The parties dispute when Dr. Grossman made Knight aware that his ACL
was intact and that he had found evidence of arthritis that he addressed during
surgery. (ECF No. 47, ¶ 54.) Dr. Grossman contends that he told Knight after
surgery that he had found no ACL tear but did find evidence of arthritis. (Id., ¶ 56;
see also ECF No. 54, ¶ 35.) Knight contends that he was provided with no details
about the procedures Dr. Grossman performed until his post-op follow up
appointment in August 2013. (ECF No. 54, ¶ 39.)
On August 13, 2013, the DOC returned Knight for a surgical follow up visit
with Dr. Grossman’s nurse practitioner. (ECF No. 47, ¶ 59.) It’s unclear whether
Knight saw Dr. Grossman during this visit. However, Knight was told (by whom the
7
parties do not say) that Dr. Grossman found an intact ACL but also found signs of
patellofemoral joint degenerative disease. (Id., ¶ 60.) The plan for Knight’s further
care was strengthening and physical therapy and to follow up in one month. (Id., ¶¶
61-62.) Knight, however, elected not to return to see Dr. Grossman. (Id., ¶ 62.)
The parties agree that the diagnostic arthroscopy, the synovectomy
(trimming of the synovium with a “sucker/shaver” device), and the debridement
chondroplasty Dr. Grossman performed were reasonable under the circumstances
and did not require additional informed consent. (ECF No. 47, ¶¶ 73-75.) However,
Knight and his expert witness, Dr. Mark Hutchinson, contend that the abrasion
arthroplasty was unreasonable and required an additional informed consent
discussion. (Id., ¶ 75.)
3. Analysis
Upon screening of Knight’s amended complaint the court allowed him
to proceed with the following claims:
Knight may proceed with a deliberate indifference claim against
Grossman based on his allegations that he misdiagnosed Knight’s
injury, failed to inform Knight of the misdiagnosis, and unilaterally
chose to perform procedures on Knight’s knee without regard to the
risks the procedures posed to Knight. Knight may also proceed on a
substantive due process claim against Grossman based on his
allegations that Grossman failed to obtain his informed consent before
performing the procedures on his knee.
(ECF No. 25 at 5.)
3.1 Deliberate Indifference to a Serious Medical Need
Prison officials violate the Eighth Amendment’s proscription against cruel
and
unusual
punishment
when
8
their
conduct
demonstrates
“deliberate indifference to serious medical needs of prisoners.” Rasho v. Elyea, 856
F.3d 469, 475 (7th Cir. 2017) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “To
determine if the Eighth Amendment has been violated in the prison medical
context, we perform a two-step analysis, first examining whether a plaintiff suffered
from an objectively serious medical condition, and then determining whether the
individual was deliberately indifferent to that condition.” Petties v. Carter, 836 F.3d
722, 727-28 (7th Cir. 2016.) Deliberate indifference requires that a defendant
actually know about yet disregard a substantial risk of harm to an inmate’s health
or safety. Id. at 728. “The standard is a subjective one: The defendant must know
facts from which he could infer that a substantial risk of serious harm exists and he
must actually draw the inference.” Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016).
The Court of Appeals for the Seventh Circuit has “consistently held that
neither a difference of opinion among medical professionals nor even admitted
medical malpractice is enough to establish deliberate indifference.” Zaya, 836 F.3d
at 805. “By definition a treatment decision [that is] 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.” Id. “A medical professional
acting in his professional capacity may be held to have displayed deliberate
indifference only if the decision by the professional is such a substantial departure
9
from accepted professional judgment, practice, or standards, as to demonstrate that
the person responsible actually did not base the decision on such a judgment.” Sain
v. Wood, 512 F.3d 886, 895 (7th Cir. 2008) (internal quotation marks omitted).
Dr. Grossman does not dispute that Knight had a serious medical condition.
Thus, the only issue is whether he was deliberately indifferent to that condition. Dr.
Grossman argues that Knight cannot show that any of his actions amounted to
deliberate indifference. Specifically, he argues that his treatment decisions were
within professional standards, that his decisions are owed deference, and that a
disagreement between professionals as to the appropriate treatment does not
constitute deliberate indifference.
Knight does not offer evidence that Dr. Grossman misdiagnosed his injury. It
appears he has abandoned that claim. It does not appear that Knight has
abandoned his claim that Dr. Grossman’s failure to inform him of the alleged
misdiagnosis until months after the surgery fell below the applicable standard of
care. However, he offers no evidence to support that claim. His expert witness, Dr.
Hutchinson, does not so opine, nor does any other witness. Thus, Dr. Grossman is
entitled to summary judgment on those claims.
That leaves Knight’s claim that Dr. Grossman acted with deliberate
indifference by performing a different surgery than that to which he consented.
Knight’s position is that, upon learning that Knight’s ACL was not torn, Dr.
Grossman should have stopped the surgery so that he could have a discussion with
Knight about the risks associated with abrasion arthroplasty to address the
10
arthritis that Dr. Grossman discovered. Knight does not contend that, had Dr.
Grossman had that discussion with him, he would have refused to consent to the
abrasion arthroplasty. He argues only that he “may well have chosen” more
conservative treatment options for arthritis. (ECF No. 45 at 25.)
Knight’s expert witness, Dr. Hutchinson, opines only that the failure to
obtain Knight’s informed consent to perform the abrasion arthroplasty constituted
“a departure from accepted medical standards.” (ECF No. 44-1 at 1.) But “[t]o infer
deliberate indifference on the basis of a physician’s treatment decision, the decision
must be so far a field 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) (internal citation omitted). Stated simply, the decision must
“substantially depart from accepted medical practice.” Harper v. Santos, 847 F.3d
923, 928 (7th Cir. 2017). Knight has presented no evidence that Dr. Grossman’s
decision to proceed with the abrasion arthroplasty without first getting Knight’s
consent substantially departed from accepted medical practice. See Whiting v.
Wexford Health Sources, Inc., 839 F.3d 658, 662-63 (7th Cir. 2016) (affirming
district court’s grant of summary judgment for the defendant when “no expert
testified that [defendant’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.”).
11
Without evidence that Dr. Grossman’s decision to perform the abrasion
arthroplasty substantially departed from accepted medical standards, Knight has
only shown that Dr. Hutchinson disagrees with Dr. Grossman’s decision. That is not
enough to create a genuine issue of material fact as to whether Dr. Grossman was
deliberately indifferent to Knight’s serious medical need. Berry v. Peterman, 604
F.3d 435, 441 (7th Cir. 2010) (deliberate indifference claim requires more than
disagreement with a doctor’s medical judgment). And, as in Whiting, Dr.
Grossman’s decision to proceed with the surgery was not so obviously wrong that a
layperson, without the benefit of expert testimony, could draw the required
inference about Dr. Grossman’s state of mind. Dr. Grossman states that he
performed the abrasion arthroplasty to address the conditions he found during
surgery, conditions that he concluded would explain the symptoms of which Knight
was complaining. (ECF No. 37, ¶ 34.) In doing so, he considered a number of factors,
including that Knight reported being in pain and that the degenerative joint disease
could be addressed through a series of common procedures, each of which would be
less invasive that the one (an ACL revision) that Knight had consented to. (Id., ¶
41.) Because Knight was in the custody of the DOC, Dr. Grossman had no control
over when or if Knight would ever again have a chance to have the surgery that Dr.
Grossman concluded he needed. (Id.)
In short, based on the record before this court, no reasonable jury could infer
that Dr. Grossman’s decision to proceed with the abrasion arthroplasty was made
with the mental state necessary to show that he acted with deliberate indifference
12
to Knight’s serious medical needs. This court offers no opinion as to whether Dr.
Grossman’s conduct constituted medical malpractice. Rather, the court concludes
here only that it did not violate Knight’s Eighth Amendment rights. As a result, Dr.
Grossman is entitled to summary judgment on Knight’s Eighth Amendment claim.
3.2 Due Process
The Court of Appeals for the Seventh Circuit has not explicitly endorsed a
due process claim based on a lack of informed consent, although it has discussed
such a claim. See Phillips v. Wexford Health Sources, Inc., 522 Fed. Appx. 364, 367
(7th Cir. 2013), and Cox v. Brubaker, 558 Fed. Appx. 677, 678–79 (7th Cir. 2014). In
Phillips, the Seventh Circuit affirmed the dismissal of a claim based on the alleged
lack of informed consent of side effects from a particular drug, concluding that the
plaintiff had not alleged that the risks of developing the side effects were
substantial enough that a reasonable patient would be expected to be apprised of
them. 522 Fed. Appx. at 367. Cox involved a claim for lack of informed consent
regarding the side effects of the drug Pamelor. The Seventh Circuit stated that the
facts of that case did not “require us to recognize, or decide the scope of, this dueprocess right because Cox supplies no evidence of the likelihood of Pamelor’s side
effects.” Cox, 55 Fed. Appx. at 679. Thus, in neither case did the court decide
whether to recognize a due process claim based on the lack of informed consent.
Dr. Grossman first argues that he is entitled to qualified immunity on
Knight’s due process claim. Contending that the Seventh Circuit has held that a
private party may raise a defense of qualified immunity under certain
13
circumstances, he states that “Knight’s case clearly falls within the class of cases in
which qualified immunity may be raised by a private defendant.” (ECF No. 35 at
24.) Knight responds that the Seventh Circuit “has repeatedly held physicians of
private corporations that contract with the state to provide medical care for
prisoners are not entitled to assert qualified immunity.” (ECF No. 45 at 17.)
In Richardson v. McKnight, 521 U.S. 399 (1997), the Supreme Court held
that employees of a private prison management firm are not entitled to invoke
qualified immunity. In Filarsky v. Delia, 566 U.S. 377, 393–94 (2012), the Supreme
Court held that an attorney hired by a municipality to conduct its business of
investigating a potential wrongdoing was entitled to invoke qualified immunity.
However, Filarsky did not overrule Richardson. According to the Seventh Circuit,
“the Filarsky Court reaffirmed the holding of Richardson categorically rejecting
immunity for the private prison employees there.” Currie v. Chhabra, 728 F.3d 626,
631 (7th Cir. 2013), citing Filarsky, 566 U.S. at 392-94. The Seventh Circuit has
held in other post-Filarsky cases that private medical personnel in prisons are not
afforded qualified immunity. See, e.g., Estate of Clark v. Walker, 865 F.3d 544, 551
(7th Cir. 2017); Rasho, 856 F.3d at 479; Petties, 836 F.3d at 734. Thus, Dr.
Grossman is not entitled to qualified immunity on Knight’s due process claim.
Dr. Grossman next argues that Knight’s due process claim must be dismissed
because Knight consented in writing “to allow Dr. Grossman to take the actions that
he did on May 15, 2013.” (ECF No. 35 at 26.) Specifically, Dr. Grossman argues that
the written consent form, authorizing him to perform whatever procedures which in
14
his professional judgment were necessary, desirable and advisable, authorized him
to perform the abrasion arthroplasty.
Knight argues that the abrasion arthroplasty procedure was not necessary,
desirable, or advisable. According to Knight, abrasion arthroplasty is a
controversial and outdated procedure with benefits and risks completely different
than an ACL reconstruction. (ECF No. 45 at 16.) According to Knight’s expert
witness, Dr. Hutchinson, an abrasion arthroplasty is an elective procedure. (ECF
No. 48, ¶ 30.) Knight contends that Dr. Hutchinson opines that an abrasion
arthroplasty was not necessary or required (ECF No. 45 at 16), although the
proposed finding of fact that he cites does not support such a statement.
The parties dispute the nature of abrasion arthroplasty, the level of
invasiveness, whether it is considered controversial and outdated, the risks it
carries, and the rehabilitation it requires. (ECF No. 54. ¶¶ 21-25.) Knight has
established that a genuine issue of material fact exists as to whether the consent
form he signed authorized Dr. Grossman to perform the abrasion arthroplasty—
that is, whether the procedure was necessary, desirable, or advisable. As such, the
court cannot grant Dr. Grossman summary judgment on Knight’s due process claim
on the ground that the consent form authorized him to perform the abrasion
arthroplasty.
Dr. Grossman next argues that Knight’s due process claim fails “because it is
unsupported by evidence sufficient to establish deliberate indifference.” (ECF No.
35 at 28.) He acknowledges that, although the Seventh Circuit has not endorsed a
15
due process right to informed consent, other circuits have. For example, as outlined
in this court’s screening order, the Second Circuit has formulated such a cause of
action that requires a prisoner to “show that (1) government officials failed to
provide him with such information; (2) this failure caused him to undergo medical
treatment that he would have refused had he been so informed; and (3) the officials’
failure was undertaken with deliberate indifference to the prisoner’s right to refuse
medical treatment.” Pabon v. Wright, 459 F.3d 241, 246 (2nd Cir. 2006). If a
plaintiff can show nothing more than negligence, his claim will be defeated. Id. at
250 (“The simple lack of due care does not make out a violation of either the
substantive or procedural aspects of the Due Process Clause of the Fourteenth
Amendment.”). Dr. Grossman argues that because Knight cannot establish
deliberate indifference, his due process claim must be dismissed. (ECF No. 35 at
29).
In response, citing Cox, Knight argues that it is not clear whether the
Seventh Circuit requires a finding of deliberate indifference under the Fourteenth
Amendment. (ECF No. 45 at 15.) In any event, he argues that Dr. Grossman’s
actions do meet the standard for deliberate indifference. (ECF No. 45 at 15.)
In Cox, the Seventh Circuit expressly stated that it was not deciding whether
to join those circuits that recognize as a matter of the substantive component of due
process that prisoners have a right to such information as is reasonably necessary
to make an informed decision to accept or reject proposed treatment. 558 Fed. Appx.
at 679. Nonetheless, to the extent the Seventh Circuit would recognize such a right,
16
this court has no reason for concluding that it would use a different framework for
showing a violation of that right than the framework used by the Second Circuit in
Pabon. Applying that framework here, Knight’s due process claim fails for two
reasons. First, as discussed above, he has not submitted evidence establishing
deliberate indifference. Second, he has not demonstrated that, had Dr. Grossman
stopped the ACL surgery in order to discuss with Knight the abrasion arthroplasty
risks and benefits, he (Knight) would have refused to proceed with the abrasion
arthroplasty, all he says is that he might have refused. (ECF No. 45 at 25.) That is
not enough.
Because Knight has not established that he would have refused to proceed
with the abrasion arthroplasty had Dr. Grossman had a discussion with him about
that surgery, and because Knight has not established that Dr. Grossman was
deliberately indifferent in failing to have that discussion with him, he cannot
sustain a claim that Dr. Grossman violated his due process rights. Thus, Dr.
Grossman is entitled to summary judgment on this claim as well.
Finally, the court will deny as moot Dr. Grossman’s motion to exclude
Knight’s expert’s—Dr. Hutchinon’s—causation testimony.
IT IS THEREFORE ORDERED that Dr. Grossman’s motion for summary
judgment (ECF No. 34) is GRANTED and this case is dismissed. The Clerk of
Court shall enter judgment accordingly.
IT IS ALSO ORDERED that Dr. Grossman’s motion to exclude the
causation testimony of plaintiff’s expert (ECF No. 40) is DENIED AS MOOT.
17
This order and the judgment to follow are final. A dissatisfied party may appeal
this decision to the Court of Appeals for the Seventh Circuit by filing in this court a
notice of appeal within 30 days of the entry of judgment. See Fed. R. App. P. 3, 4. I may
extend this deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30‐day deadline. See Fed. R. App. P.
4(a)(5)(A).
Under certain circumstances, a party may ask the court to alter or amend the
judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment
under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of judgment. The court cannot
extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more than one
year after the entry of the judgment. The court cannot extend this deadline. See Fed. R.
Civ. P. 6(b)(2).
Parties are expected to closely review all applicable rules and determine, what, if
any, further action is appropriate in a case.
Dated at Milwaukee, Wisconsin this 21st day of March, 2019.
WILLIAM E. DUFFIN
U.S. Magistrate Judge
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?