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Knight v. Grossman

United States Court of Appeals, Seventh Circuit

October 31, 2019

DeWayne D. Knight, Plaintiff-Appellant,
Thomas Grossman, Jr., M.D., Defendant-Appellee.

          Argued September 17, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:16-cv-1644 - William E. Duffin, Magistrate Judge.

          Before Flaum, Rovner, and Scudder, Circuit Judges.

          Scudder, Circuit Judge.

         DeWayne Knight is a prisoner who went under the knife for one surgery and Dr. Thomas Grossman, upon seeing during the operation that he made the wrong diagnosis, performed another. Knight brought suit under 42 U.S.C. § 1983, alleging that Dr. Grossman acted with deliberate indifference to his medical needs in violation of the Eighth Amendment and disregarded his right to informed consent in violation of the Fourteenth Amendment. The district court entered summary judgment in Dr. Grossman's favor on both claims. In considering Knight's due process claim, the district court correctly observed that we have never endorsed a right to informed consent or pronounced a standard for proving a violation of that right. We do so now by adopting the standard the Second Circuit articulated in Pabon v. Wright, 459 F.3d 241 (2006). But because Knight did not sufficiently prove the elements of either of his claims, we affirm the district court's judgment.


         The summary judgment record supplies the operative facts, and we draw all inferences in the light most favorable to Knight. See Yochim v. Carson, 935 F.3d 586, 588 (7th Cir. 2019).

         While serving a sentence at the Waupun Correctional Institution, DeWayne Knight sought treatment for a basketball injury to his left knee. Prison staff referred Knight to Dr. Grossman, who worked at a hospital that contracted with the Wisconsin Department of Corrections to provide medical services to state prisoners. Dr. Grossman diagnosed Knight with a tear in his anterior cruciate ligament and performed reconstruction surgery. This surgery was successful and is not at issue in this litigation.

         A few years later, Knight reinjured his knee and returned to Dr. Grossman for treatment. Dr. Grossman examined Knight, ordered x-rays, and, without consulting an MRI, diagnosed him with a torn ACL revision. Dr. Grossman offered Knight the option of undergoing a revision procedure to repair the tear. In doing so, he issued a series of disclaimers, explaining that the surgery was elective and not strictly necessary, involved certain risks, and did not bring with it a promise that it would resolve Knight's pain. Knight agreed to the surgery and opted for a type of reconstruction procedure that would require Dr. Grossman opening both knees and transplanting tissue from Knight's healthy right knee into his left knee.

         On the day of the surgery, Knight signed a consent form authorizing a "[r]evision left anterior cruciate reconstruction with donor site from right knee." The form also provided that if "unforeseen conditions" arose during the surgery which, in Dr. Grossman's judgment, required additional or different procedures, he had Knight's consent to take any further steps "deemed necessary and advisable." Upon opening Knight's left knee, Dr. Grossman was met with a different condition than he anticipated-Knight's ACL was intact and functional, not torn. But Dr. Grossman observed other issues with Knight's left knee, including surface damage to the cartilage (grade three changes in the trochlea), narrowing of the space between the two bumps at the end of the thigh bone (dense stenosis on the lateral side on the intercondylar notch, with a small bone fragment), and bony overgrowths on the kneecap (patellar osteophytosis). An experienced surgeon, Dr. Grossman determined what he was seeing was consistent with degenerative joint disease or arthritis and would explain why Knight was experiencing renewed pain and discomfort in his left knee.

         Dr. Grossman knew immediately how to treat Knight. He could continue operating by using the two small incisions that had already been made to Knight's left knee to perform a series of arthroscopic surgical procedures. In medical terms, a procedure known as a chondroplasty would remove the damaged tissue and a second procedure, a notchplasty, would enlarge the narrowed gap to address the thigh-bone issue. As for the kneecap, Dr. Grossman could perform an abrasion arthroplasty-a procedure that required (in simplified terms) shaving the bone to a degree that stimulated the bone marrow to generate new cartilage.

         So Dr. Grossman found himself at a fork in the road: with Knight unconscious on the operating table, he could close Knight's knee and end the operation or move forward with the alternative procedures he had not discussed with Knight but believed would help him. Dr. Grossman chose to keep operating. He later explained that he did so not only because he was confident the alternative procedures would address Knight's condition, but also because it was unclear if or when Knight, as a prisoner, would be available for surgery again.

         Knight woke up in the recovery room to find that only his left knee had been operated on. No one told Knight that Dr. Grossman had changed course mid-operation and performed an alternative surgery-one they had never discussed. Upon Knight's discharge from the hospital, Dr. Grossman sent his operative note and recovery instructions to the prison's medical unit. The note explained what Dr. Grossman had observed, including Knight's intact ACL, and the procedures he performed, including the abrasion arthroplasty. Dr. Grossman instructed that Knight could stand and put whatever weight on his left knee he was able to tolerate, even though recovery from abrasion arthroplasty requires that the patient avoid putting any weight on the knee so that the new cartilage can mature. Three months after the surgery, Knight had a follow-up appointment with Dr. Grossman, where he finally learned the details of his surgery. Knight's knee has since gotten worse.

         Litigation then followed. Knight brought suit against Dr. Grossman under 42 U.S.C. § 1983, claiming that the treatment he received for his knee violated his Eighth and Fourteenth Amendment rights. Dr. Grossman moved for summary judgment on ...

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