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Knight v. Grossman

United States District Court, E.D. Wisconsin

March 21, 2019




         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. 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 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 x-rays, 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 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 ...

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