United States District Court, E.D. Wisconsin
DECISION AND ORDER
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE.
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
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
Summary Judgment Standard
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
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.
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.)
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.)
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.)
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.)
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 ...