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Whiting v. Wexford Health Sources, Inc.

United States Court of Appeals, Seventh Circuit

October 12, 2016

Calvin Whiting, Plaintiff-Appellant,
v.
Wexford Health Sources, Inc., and Alfonso David, Defendants-Appellees.

          Argued October 26, 2015

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 2917 - Elaine E. Bucklo, Judge.

          Before Wood, Chief Judge, Bauer and Sykes, Circuit Judges.

          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.

         I. Background

         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) and Motrin.

         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 medication.

         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 lymphoma.

         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 stem-cell 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 transplant.

         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 period.

         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 Monell v. Department of Social Services,436 ...


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