In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-1740 

DEWAYNE D. KNIGHT, 

Plaintiff-Appellant, 

v.

THOMAS GROSSMAN, JR., M.D., 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Eastern District of Wisconsin. 

No. 2:16-cv-1644 — William E. Duffin, Magistrate Judge. 

____________________ 

ARGUED SEPTEMBER 17, 2019 — DECIDED OCTOBER 31, 2019 

____________________ 

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 
2 No. 19-1740 

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. 

I 

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 
No. 19-1740 3

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 
4 No. 19-1740 

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 
No. 19-1740 5

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 both claims, and the district court granted 

his motion. Knight now appeals. 

II 

We start with Knight’s claim that Dr. Grossman acted with 

deliberate indifference to his medical needs. We do so by taking our own fresh look at the record evidence, construing all 

facts in Knight’s favor. See Lavite v. Dunstan, 932 F.3d 1020, 

1027 (7th Cir. 2019). 

The Eighth Amendment prohibits the “unnecessary and 

wanton infliction of pain,” which includes “[d]eliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). To prevail on this claim, Knight 

must prove not only that he suffered from an objectively serious medical condition, but also that a state official responded 

with deliberate indifference to the condition. See Whiting v. 

Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016). 

Dr. Grossman does not dispute that Knight’s knee condition is an objectively serious medical condition or that he 

qualifies as a state official, leaving deliberate indifference the 

only contested element. A prison official is deliberately indifferent only if he “knows of and disregards an excessive risk 

to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 

837 (1994). The inquiry is subjective and requires that the official know “facts from which he could infer that a substantial 
6 No. 19-1740 

risk of serious harm exists, and he must actually draw the inference.” Whiting, 839 F.3d at 662. “[E]vidence of medical negligence is not enough to prove deliberate indifference.” Id. 

Knight advances his Eighth Amendment claim by insisting that Dr. Grossman was deliberately indifferent to his right 

to informed consent. Framing the issue that way sends the 

parties down the wrong analytical path, however. Knight’s 

Eighth Amendment claim is one for deliberate indifference to 

his serious medical needs, not deliberate indifference to a 

right to informed consent. Knight’s liberty interest in informed consent to particular medical treatment is the province of the Fourteenth Amendment. 

Take, for example, a prisoner with a malignant but treatable tumor. If a doctor discovers and removes the tumor while 

treating a hernia, nobody would say the doctor acted with deliberate indifference to the prisoner’s medical needs. To the 

contrary, the physician, albeit without affording the prisoner 

the right to choose a course of medical care, saved the inmate’s life. Put another way, at least in this case, whether 

Knight consented to the abrasion arthroplasty is irrelevant to 

his Eighth Amendment claim for deliberate indifference to his 

medical needs. 

On this record, we conclude that no reasonable jury could 

find that Dr. Grossman acted with deliberate indifference to 

Knight’s knee condition. Nothing suggests, much less suffices 

to show, that Dr. Grossman knew of and disregarded a substantial risk to Knight’s condition or somehow denied or delayed treatment. All evidence points the opposite way: 

Dr. Grossman came upon an unexpected diagnosis during 

surgery, identified an alternative treatment course, and then 

traveled that new path—all to help Knight. 
No. 19-1740 7

Knight urges a different perspective on the view that 

Dr. Grossman provided the wrong treatment or even deficient care. Apart from finding no footing in the facts, this theory faces an uphill climb on the law, as, unlike in a malpractice tort claim, medical professionals receive significant deference when their judgments encounter challenges under the 

Eighth Amendment. See Wilson v. Wexford Health Sources, Inc., 

932 F.3d 513, 519 (7th Cir. 2019). The standard is not whether 

a reasonable medical professional would have made the same 

choice as Dr. Grossman, but instead whether “no minimally 

competent professional” would have done so. Id. “[E]vidence 

that some medical professionals would have chosen a different 

course of treatment is insufficient to make out a constitutional 

claim.” Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (en 

banc). 

Knight failed to meet this demanding standard. The record does not support a finding that either the abrasion arthroplasty or the inadequate recovery instructions deviated from 

accepted medical standards. Knight’s own expert opined only 

that Dr. Grossman’s failure to obtain a new informed consent 

and discuss alternative treatment opinions deviated from professional standards. From there, though, the expert’s opinions 

say nothing about whether the abrasion arthroplasty, the failure to tell Knight about it, or the recovery instructions aligned 

with medical standards, let alone whether those choices were 

such substantial deviations that a jury could find deliberate 

indifference. 

To be sure, expert testimony is not always necessary. See 

id. Here, however, none of the alleged errors are so obvious 

that a lay juror could assess whether Knight carried his burden in challenging Dr. Grossman’s treatment. In the end, all 
8 No. 19-1740 

we can say is that Knight may have marshaled enough evidence to cast doubt on the wisdom of Dr. Grossman’s choice 

to perform the abrasion arthroplasty—a procedure that, at 

least in some circles, is considered controversial and outdated. But most medical treatments carry risk, and without 

evidence that Dr. Grossman’s choices carried risk so high that 

no minimally competent doctor would have done the same, 

Knight cannot prevail. The district court was right to grant 

summary judgment on the Eighth Amendment claim. 

III 

We now venture into newer territory to address Knight’s 

due process claim. The Fourteenth Amendment protects 

against deprivations of life, liberty, and property without due 

process of law. The Supreme Court has recognized that “a 

competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.” Cruzan v. 

Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990). So, too, has 

the Court held that prisoners retain a liberty interest in refusing forced medical treatment while incarcerated. See Washington v. Harper, 494 U.S. 210, 221–22 (1990). 

From the interest in refusing unwanted treatment, some 

courts have inferred the existence of a corollary right—the 

right to receive information required to decide whether to refuse treatment. See, e.g., Pabon v. Wright, 459 F.3d 241, 249–50 

(2d Cir. 2006); Benson v. Terhune, 304 F.3d 874, 884 (9th Cir. 

2002); White v. Napoleon, 897 F.2d 103, 113 (3d Cir. 1990). On 

at least two occasions we have reserved judgment on the existence of this right. See Cox v. Brubaker, 558 F. App’x 677, 678–

79 (7th Cir. 2014); Phillips v. Wexford Health Sources, Inc., 522 F. 

App’x 364, 367 (7th Cir. 2013). 
No. 19-1740 9

We now join all other circuits to have considered the question in holding that prisoners have a Fourteenth Amendment 

right to informed consent. The right to refuse medical treatment carries with it an implied right to the information necessary to make an informed decision about whether to refuse 

the treatment. Without crucial information about the risks 

and benefits of a procedure, the right to refuse would ring 

hollow. Together, the right to refuse treatment and the right 

to information required to do so constitute a right to informed 

consent. This due process entitlement has similarities to the 

familiar common law doctrine with which it shares its name, 

see Cruzan, 497 U.S. at 269–70 (describing the common law 

roots of informed consent), but its constitutional origin imposes different requirements than an informed-consent tort 

claim. 

A 

The Second Circuit confronted the requirements for what 

it termed a Fourteenth Amendment “right to medical information” claim in its 2006 decision in Pabon v. Wright, 459 F.3d 

241. While incarcerated, William Pabon underwent a liver biopsy and medication therapy for Hepatitis C. Id. at 245. He 

claimed that he was not warned of the serious side effects and 

brought a § 1983 claim based on the violation of a Fourteenth 

Amendment right to medical information. Id. at 245–46. Relying on Cruzan and Harper, the Second Circuit recognized a 

constitutional entitlement to medical information but emphasized that it was “far from absolute.” Id. at 249–50. The court 

highlighted four limitations on the right. 

The first three limitations address what the prisoner must 

prove to establish a violation of his right to medical information. Two of the limitations are necessary because the 
10 No. 19-1740 

logical source of the right to medical information is the right 

to refuse treatment, so the right to medical information exists 

only as far as needed to effectuate the right of refusal. Id. at 

251. First, the prisoner “must show that, had he received information that was not given to him, he would have exercised 

his right to refuse the proposed treatment.” Id. Second, “[t]he 

prisoner is entitled only to such information as a reasonable 

patient would deem necessary to make an informed decision.” Id. at 250. This limitation avoids imposing an onerous 

burden of disclosing “all conceivable information” about a 

treatment and reduces the opportunity for the right to be used 

for “obstructionist” gain. Id. 

Third, the prisoner must prove that the defendant acted 

with deliberate indifference to his right to refuse medical 

treatment. Id. at 251. Neither negligence nor gross negligence 

is enough to support a substantive due process claim, which 

must be so egregious as to “shock the conscience.” See County 

of Sacramento v. Lewis, 523 U.S. 833, 848–49 (1998); McDowell v. 

Vill. of Lansing, 763 F.3d 762, 766 (7th Cir. 2014). In selecting 

deliberate indifference as the appropriate state of mind requirement as opposed to a more stringent intentionality 

standard, the Second Circuit relied on the Supreme Court’s 

observation in Lewis that “liability for deliberate indifference 

to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the 

chance for repeated reflection, largely uncomplicated by the 

pulls of competing obligations.” 523 U.S. at 853. The Court 

reasoned that in this context of “such extended opportunities 

to do better” and “protracted failure even to care, indifference 

is truly shocking.” Id. 
No. 19-1740 11

This element is the one Knight more vigorously contests, 

arguing that imposing a deliberate indifference requirement 

inappropriately “collapses the distinct right to informed consent granted under the Fourteenth Amendment into the prohibition against deliberate indifference to a prisoner’s serious 

medical needs provided for under the Eighth Amendment.” 

We disagree. Knight’s position misses a key distinction, which 

hinges on what the defendant must be deliberately indifferent 

to. In an Eighth Amendment claim, the question is whether 

the defendant was deliberately indifferent to the prisoner’s serious medical need. But here, in a Fourteenth Amendment 

due process claim, we ask whether the defendant was deliberately indifferent to the prisoner’s right to refuse treatment. 

Though both require deliberate indifference, the inquiries are 

distinct. 

Stepping back illuminates the distinction. A physician is 

deliberately indifferent to a patient’s right to refuse treatment 

if the doctor subjectively knows that the patient did not consent to the treatment or that the patient would want to know 

the medical information being withheld in order to decide 

whether to refuse the treatment. But a physician can be deliberately indifferent to a prisoner’s right to refuse treatment 

without being deliberately indifferent to his medical needs. 

Our tumor example shows as much. 

The final limitation the Second Circuit outlined in Pabon is 

a safety valve of sorts—allowing the right to medical information to give way when outweighed by a countervailing 

state interest. A prisoner’s right to refuse medical treatment 

can be infringed by a prison regulation that is “reasonably related to legitimate penological interests.” Harper, 494 U.S. at 

246 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). A 
12 No. 19-1740 

common example is when forced medication is needed to 

avoid the spread of contagious disease or to quell disruptive 

behavior. As the Second Circuit explained, “[i]f legitimate penological interests dictate that a particular treatment must be 

administered even if the prisoner would have refused it, then 

because there is no constitutional right to refuse treatment, 

there is no corollary right to be informed about the treatment.” Pabon, 459 F.3d at 252. 

B 

We agree with the Second Circuit’s reasoning and adopt 

the Pabon standard. A prisoner’s claim of the violation of his 

right to informed consent is evaluated under a two-step inquiry. The prisoner must first establish that his right to informed consent was violated. To do this, the prisoner must 

prove that (1) he was deprived of information that a reasonable patient would deem necessary to make an informed decision about his medical treatment, (2) the defendant acted with 

deliberate indifference to the prisoner’s right to refuse treatment, and (3) if the prisoner had received the information, he 

would have refused the treatment. If the prisoner establishes 

that his right to informed consent has been violated, we then 

take the second and final step of balancing the prisoner’s right 

to informed consent against countervailing state interests. Liability arises only if, in the end, the prisoner’s right outweighs 

the state interests. 

C 

We question whether Knight has sufficiently shown that 

Dr. Grossman was deliberately indifferent to his right to refuse treatment, particularly given the scope of the consent 

form. But we can stop short of answering that question 
No. 19-1740 13

because, at the very least, Knight failed to show that he would 

have refused the only procedure he contests (the abrasion arthroplasty) had he been fully informed. Knight’s express position below was that he “may well have” chosen a different 

treatment. Even if he had submitted that view in a sworn affidavit, which he did not, it would have fallen short: saying he 

may have refused treatment is not the same as saying he 

would have. With this failure of proof, the district court 

properly granted Dr. Grossman summary judgment. 

For these reasons, we AFFIRM.