Calvin Whiting v. Wexford Health Sources, Incorp
2016 U.S. App. LEXIS 18416
| 7th Cir. | 2016Background
- Calvin Whiting, an Illinois prisoner, developed jaw, ear, and groin pain with nodules in October 2010; initial treatment was antibiotics and OTC pain relievers.
- Dr. Alfonso David (Wexford medical director at Shawnee) examined Whiting on Oct. 27, ordered blood work, and requested a biopsy; a second physician on a "Collegial Review Committee" denied the biopsy request on Nov. 1.
- Dr. David treated Whiting with additional antibiotics (doxycycline, amoxicillin/augmentin) and continued nonprescription pain medication while symptoms persisted and worsened.
- A biopsy was finally approved in early December and performed Dec. 21, revealing a rare, aggressive Stage IV anaplastic large cell non-Hodgkin’s lymphoma; chemotherapy began in January 2011.
- Whiting sued under 42 U.S.C. § 1983 alleging Eighth Amendment deliberate indifference against Dr. David and Wexford; the district court granted summary judgment for both defendants, and the Seventh Circuit panel affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. David was deliberately indifferent to a serious medical need | Whiting: delay in ordering biopsy and persisting with ineffective antibiotics caused prolonged pain and delayed cancer treatment | Dr. David: he exercised professional judgment treating suspected infection; no evidence he knew antibiotics would fail | Affirmed for Dr. David (majority): no evidence showing subjective awareness of risk sufficient to infer deliberate indifference; treatment dispute alone is not Eighth Amendment violation |
| Whether Wexford is liable under Monell through Dr. David as final policymaker | Whiting: Dr. David was a final policymaker for Wexford whose conduct caused the violation | Wexford: plaintiff failed to show a Wexford policy/custom or that Dr. David had final policymaking authority | Affirmed for Wexford: plaintiff did not prove Dr. David was a final policymaker and his individual liability was negated |
| Whether expert testimony or other evidence showed treatment departed from accepted professional judgment enough to create a jury issue | Whiting: treating physicians and oncologists later said earlier biopsy/chemo would have reduced pain and disease progression | Defendants: no expert evidence that the chosen antibiotic regimen was a substantial departure from accepted practice | Held: Majority—lack of expert proof that treatment was so far afield; dissent—factual record could permit reasonable jury to infer deliberate indifference |
| Standard for deliberate indifference when some medical care is provided | Whiting: the totality of care and persistence in ineffective treatment can show deliberate indifference | Defendants: providing some care shows exercise of professional judgment and negates subjective culpability | Held: Court reaffirms that mere disagreement/ negligence is insufficient, but recognizes factual scenarios where continued ineffective care may allow a jury inference (majority applied standard and found insufficient evidence here) |
Key Cases Cited
- Estelle v. Gamble, 429 U.S. 97 (Eighth Amendment deliberate indifference standard for prisoners)
- Farmer v. Brennan, 511 U.S. 825 (subjective knowledge and disregard test for Eighth Amendment)
- Monell v. Department of Social Services, 436 U.S. 658 (municipal/corporate § 1983 liability requires policy or final policymaker)
- Petties v. Carter, 836 F.3d 722 (7th Cir. en banc 2016) (totality of care; when persistence in ineffective treatment may support deliberate indifference)
- Duckworth v. Ahmad, 532 F.3d 675 (7th Cir. 2008) (medical disagreement vs. proof of defendant's state of mind)
- Hayes v. Snyder, 546 F.3d 516 (7th Cir. 2008) (facts supporting inference of deliberate indifference where physician refused referrals and stronger pain treatment)
- Thomas v. Cook County Sheriff's Dep't, 604 F.3d 293 (7th Cir. 2010) (Monell proof: policymaker evidence and causation)
- McGowan v. Hulick, 612 F.3d 636 (7th Cir. 2010) (delay in treatment can be deliberate indifference if it exacerbates injury or prolongs pain)