The U.S. Court of Appeals for the Seventh Circuit (“Federal Appellate Court”) vacated a jury award to a federal inmate in his deliberate indifference medical malpractice case in the amount of $1 million in compensatory damages and $7 million in punitive damages (the jury had awarded $10 million in puntive damages against Wexford Health Sources, Inc., but the trial court subsequently reduced that amount to $7 million), stating in its November 10, 2021 opinion: “Dean has endured great suffering, but he did not produce enough evidence at trial to hold any of the defendants liable for violating his Eighth Amendment rights. Dean’s claim against Wexford hinged on the Lippert reports—two expert reports from another case that critique the medical care, and process for medical care, that Illinois provides, through Wexford, to its prisoners. The Lippert reports are hearsay, but the district court allowed Dean to use them for a non-hearsay purpose: to prove that Wexford had prior notice of the experts’ negative assessments of collegial review.”
“The problem with the district court’s ruling is that the second Lippert report postdated all events relevant to this case and thus could not have given Wexford prior notice of anything. And even if the court did not abuse its discretion in admitting the first report—an issue we need not resolve—the first report alone was insufficient to hold Wexford liable under the exacting requirements of Monell v. Department of Social Services, 436 U.S. 658 (1978), in this single-incident case. Dean fares no better at proving that the doctor-defendants were deliberately indifferent, so we reverse and direct judgment as a matter of law across the board on the Eighth Amendment claims. We do not upset the jury’s findings that the defendants were negligent, but a new jury must reassess the issue of damages.”
(Lippert v. Ghosh, 10-cv-4603 (N.D. Ill., filed July 23, 2010), was a class-action lawsuit against the Illinois Department of Corrections (IDOC) and Wexford alleging systemic deficiencies in medical care at IDOC facilities. The parties in Lippert stipulated to Wexford’s dismissal from that lawsuit on December 19, 2013.)
The Underlying Facts
Plaintiff William Dean has been incarcerated at the Taylorville Correctional Center in Taylorville, Illinois since 2012. Dean developed kidney cancer while incarcerated at Taylorville. Seven months after he first presented symptoms, Dean had kidney-removal surgery. By that time, the cancer had already spread to his liver, so Dean remains terminally ill.
Dean sued two of the doctors involved in his care, Dr. Abdur Nawoor and Dr. Rebecca Einwohner, and their employer, Wexford Health Sources, Inc., under 42 U.S.C. § 1983, for deliberate indifference in violation of the Eighth Amendment. He also sued Wexford for institutional negligence and the doctor-defendants for medical malpractice. Dean’s lawsuit centered on the timing of the offsite care that he received at Taylorville in connection with the diagnosis and treatment of his kidney cancer.
The Eighth Amendment’s ban on “cruel and unusual punishments” obligates prison officials to provide medical care to prisoners in their custody. To prevail on an Eighth Amendment claim for inadequate medical care, a prisoner must show that a prison official acted with deliberate indifference to the prisoner’s objectively serious medical need.
Section 1983 creates a private right of action against any “person” who violates the plaintiff’s federal rights while acting under color of state law. 42 U.S.C. § 1983. Municipalities are “person[s]” who may be sued under § 1983, but municipalities are not vicariously liable for the constitutional torts of their employees or agents; the Federal Appellate Court treats private corporations, such as Wexford, acting under color of state law as municipalities.
There are at least three types of municipal action that may give rise to municipal liability under § 1983: (1) an express policy that causes a constitutional deprivation when enforced; (2) a widespread practice that is so permanent and well-settled that it constitutes a custom or practice; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority. Inaction can give rise to liability in some instances if it reflects a conscious decision not to take action. The plaintiff must show that the policy or custom demonstrates municipal fault, i.e., deliberate indifference, which is a high bar. If a municipality’s action is not facially unconstitutional, the plaintiff must prove that it was obvious that the municipality’s action would lead to constitutional violations and that the municipality consciously disregarded those consequences. Finally, the plaintiff must show that the municipal action was the ‘moving force’ behind the federal-rights violation.
In short, a plaintiff must show that some municipal action directly caused him to suffer a deprivation of a federal right, and that the municipality took the action with conscious disregard for the known or obvious risk of the deprivation.
Federal Appellate Court Opinion
The Federal Appellate Court stated: “Dean did not introduce any substantive evidence of a pattern or practice of similar violations. He did not offer substantive evidence that collegial review had caused unconstitutional delays for other prisoners. He only offered substantive evidence of collegial review causing unconstitutional delays in his own healthcare. Nor does he contend on appeal that his is one of those “rare” cases where the risk of unconstitutional delays is “patently obvious” even without proof of other violations.”
“Rather than offer substantive evidence of deliberate indifference, Dean relies solely on the Lippert reports. His theory is that the Lippert reports put Wexford on notice that independent experts in another case had found that collegial review was causing systemic delays in medical care and that Wexford consciously disregarded that risk in adhering to collegial review at the Taylorville facility. We have held that the 2018 report was inadmissible, so the question is whether the 2014 report gave the jury a sufficient basis for finding that Wexford acted with deliberate indifference.”
“It did not. Although we have not directly confronted this issue before, our prior cases suggest that evidence admitted only for notice cannot establish that a municipality acted with deliberate indifference unless the plaintiff also has substantive proof that the “noticed” problems actually existed … Here, outside of Dean’s own injury, his only evidence of Wexford’s deliberate indifference is a hearsay report admitted for notice … The 2014 report provides notice—but notice of what? Taylorville was not one of the facilities reviewed in the 2014 report, so the report could not have given Wexford notice of any specific problems occurring there … even if the 2014 report gave Wexford notice that its prior policy would cause constitutional violations, it could not have given Wexford notice that its updated policy suffered from the same deficiencies. The updated policy contained a critical exception that the earlier policy did not … Dean cannot show that Wexford “consciously disregarded” a known risk of constitutional violations while treating him when, only weeks after Dean first presented symptoms, Wexford adopted a policy change that was directly responsive to that risk.”
With regard to the defendant doctors, the Federal Appellate Court stated: “Even if Dean can show deliberate indifference, he must also demonstrate that the doctors personally caused a violation of his constitutional rights … In other words, Dean must show that “the defendant’s actions or inaction caused the delay in his treatment,” id., and that “the delay exacerbated the injury or unnecessarily prolonged pain.””
“If, however, Dr. Nawoor’s decision to order an ultrasound reflected his medical judgment, then he was not deliberately indifferent as a matter of law. See id. The evidence at trial compels the conclusion that Dr. Nawoor’s decision to order an ultrasound was an exercise of medical judgment … Viewing this testimony in the light most favorable to Dean, it reflects a difference of opinion among medical professionals, which cannot support a deliberate indifference claim.”
Furthermore, “Dean cannot show that Dr. Einwohner was responsible for any of the challenged delays. Dr. Einwohner testified, without contradiction, that she lacked the power to change the course of his treatment … Dean’s claim against Dr. Einwohner rests on the assumption that, if she had followed up more, Dean would have seen a urologist sooner. But that is pure speculation. No evidence supports the inference that Dr. Einwohner could have changed the course of Dean’s treatment if she had been more persistent.”
The Federal Appellate Court concluded: “With the Eighth Amendment claims off the table, punitive damages are no longer available … Although we leave the negligence verdicts intact, a second jury must decide compensatory damages anew … Nothing we have said should be taken to cast doubt on the gravity of Dean’s pain and suffering. Dean has shown remarkable resilience in battling terminal cancer from prison. The jury found that the defendants were negligent in caring for Dean, and we do not disturb those findings. Deliberate indifference is a high hurdle, however, and the evidence at trial did not surmount it. Accordingly, we reverse the judgment on the Eighth Amendment claims and remand for the district court to enter judgment as a matter of law for the defendants on those claims. We vacate the judgment on the negligence based claims and remand for a new trial on those claims limited to the issue of damages.”
A dissenting opinion stated, in part: “Though unnecessary to the jury’s ultimate determination, the Lippert Reports—whether the two are taken together or the 2014 Report is taken alone—shore up this conclusion. The 2016 update to the manual does not reflect a relevant, material break. The jury easily could have seen the additional manual language on which my colleagues rely as elaborative, as Dr. Ritz said. Even if this were not the case, Dean was treated only pursuant to the default collegial review process; his case was never expedited as an urgent or emergency matter, and so any purported material change in policy was simply irrelevant to him.”
“I therefore conclude where I began: this was a vigorously fought jury trial. The jury certainly would have been within its rights to find in favor of Wexford, but it found the evidence on Dean’s side to be more persuasive. I would affirm its verdict across the board. I therefore respectfully dissent from the majority’s decision setting aside the jury’s verdict on Dean’s Eighth Amendment count.”
Source Dean v. Wexford Health Sources, Inc., Nos. 20-3058 & 20-3139.
If you or a loved one were injured due to deliberate indifference or the lack of appropriate medical care while incarcerated in a prison, jail, or other correctional facility in Illinois or in another U.S. state, you should promptly seek the legal advice of a local medical malpractice lawyer in your state who handles prisoner/inmate medical malpractice claims and may investigate your claim and represent you or your loved one, if appropriate.
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