### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1740

D E W AYNE D. K NIGHT, Plaintiff-Appellant,

v.

T HOMAS G ROSSMAN , J R ., 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

.

____________________
A RGUED S EPTEMBER 17, 2019

— D ECIDED O CTOBER 31, 2019

____________________

Before F LAUM, R OVNER, and S CUDDER , Circuit Judges

. S CUDDER , 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 anot her. Knight brought suit under 42 U.S.C. § 1983, alleging that Dr. Grossman acted with deliberate indi ff erence to his medical n eeds in violation of the Eighth Amendment and disregarded his right to informed consent in violation of th e Fourteenth Amendment. The2 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 neverendorsed 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 be cause Knight did not suffi ciently prove the elements of either of his claims, we a ffi rm the district court’s judgment.

I The summary judgment record supplies the operative facts, and we draw all inferenc es 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 sta ff 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 rein jured his knee and returned to Dr. Grossman for treatment. Dr. Grossman examinedKnight, ordered x-rays, and, without consulting an MRI, diagnosed him with a torn AC L revision. Dr. Grossman o ff ered Knight the option of undergoinga revision procedure to repair the tear. In doing so, he issu ed a series of disclaimers, explaining that the surgery was elective and not strictlyNo. 19-1740 3

necessary, involved certain risks, and did not bring with it a promise that it would resolve Kn ight’s pain. Knight agreed to the surgery and opted for a type of reconstruction procedure that would require Dr. Grossm an opening both knees and transplanting tissue from Knight’s healthy right knee into his left knee. On the day of the surgery, Kn ight signed a consent form authorizing a “[r]evision left an terior 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 di ff erent procedures, he had Knight’s consent to take any further steps “deemed necessary and advisabl e.” Upon opening Knight’s left knee, Dr. Grossman was met with a di ff erent 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 troc hlea), narrowing of the space between the two bumps at the en d 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 usin g the two small incisions thathad 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 the4 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, D r. Grossman could perform anabrasion arthroplasty—a procedure that required (in simplifi ed 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 ope rating 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. D r. Grossman chose to keep operating. He later explained that he did so not only because he

was con fi dent the alternative procedures would address Knight’s condition, but also beca use it was unclear if or when Knight, as a prisoner, would be available for surgery again. Knight woke up in the recovery room to fi nd that only his left knee had been operated on . No one told Knight thatDr. 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 thatKnight 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 pu tt ing 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 heNo. 19-1740 5

fi nally learned the details of his surgery. Knight’s knee has since go tt en 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. D r. 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 indi ff erence 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 in fl iction 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 su ff ered from an objectively serious medical condition, but also that a state o ffi cial responded with deliberate indi ff erence 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 quali fi es as a state o ffi cial, leaving deliberate indi ff erence the only contested element. A prison o ffi cial 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 subjecti ve and requires that the offi cial know “facts from which he could infer that a substantial6 No. 19-1740

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

.Knight advances his Eighth Amendment claim by insisting that Dr. Grossman was deliberately indi ff erent 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 indi ff erence to his serious medical needs, not deliberate indi ff erence to aright 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 whiletreating a hernia, nobody would say the doctor acted with deliberate indi ff erence to the prisoner’s medical needs. To the contrary, the physician, albeit without a ff ording the prisonerthe 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 indi ff erence to his medical needs. On this record, we conclude th at no reasonable jury could fi nd that Dr. Grossman acted with deliberate indi ff erence to Knight’s knee condition. Nothing suggests, much less su ffi cesto 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, identi fi ed an alternative treatment course, and then traveled that new path —all to help Knight.No. 19-1740 7

Knight urges a di ff erent perspective on the view that Dr. Grossman provided the wrong treatment or even de fi

cient care. Apart from fi nding no footing in the facts, this theory faces an uphill climb on th e law, as, unlike in a malpractice tort claim, medical professionals receive signi fi cant deference when their judgments en counter challenges under the Eighth Amendment. See Wilson v. Wexford Health Sources, Inc. , 932 F.3d 513, 519 (7th Cir. 2019). Th e standard is not whether a reasonable medical profession al 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 di ff erent course of treatment is insu ffi cient to make out a constitutional claim.” Pe tt ies 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 fi nding 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 consentand discuss alternative treatment opinions deviated from professional standards. From there, though, the expert’s opinionssay nothing about whether the abrasion arthroplasty, the failure to tell Knight about it, or the recovery instructions aligned with medical standards, let al one whether those choices were such substantial deviations that a jury could fi nd deliberate indi ff erence. 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 wh ether Knight carried his burden in challenging Dr. Grossman’s treatment. In the end, all8 No. 19-1740

we can say is that Knight may have marshaled enough evidence to cast doubt on the wisd om of Dr. Grossman’s choice to perform the abrasion arthroplasty—a procedure that, atleast in some circles, is considered controversial and outdated. But most medical treatments carry risk, and without evidence that Dr. Grossman’s choi ces 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 Four teenth Amendment protects against deprivations of life, liberty, and property without due process of law. The Supreme Court has recognized that “acompetent 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, hasthe 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—theright 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). Onat 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 Amendmentright to informed consent. The right to refuse medical treatment carries with it an implie d right to the information necessary to make an informed de cision about whether to refuse the treatment. Without crucial information about the risks and bene fi ts 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 wi th which it shares its name,

see Cruzan , 497 U.S. at 269–70 (describing the common lawroots of informed consent), but its constitutional origin imposes di ff erent requirements than aninformed-consent tort claim.
A

The Second Circuit confronted the requirements for whatit termed a Fourteenth Amendment “right to medical information” claim in its 2006 decision in Pabon v. Wright, 459 F.3d241. 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 e ff ects and brought a § 1983 claim based on th e violation of a Fourteenth Amendment right to medical information. Id . at 245–46. Relying on Cruzan and Harper, the Second Circuit recognized aconstitutional 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 fi rst three limitations addre ss what the prisoner mustprove to establish a violation of his right to medical information. Two of the limitations are necessary because the10 No. 19-1740

logical source of the right to medical information is the right to refuse treatment, so the righ t to medical information exists only as far as needed to e ff ectuate 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 su ch 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 conc eivable information” about a treatment and reduces the opportun ity for the right to be used for “obstructionist” gain. Id

. Third, the prisoner must prove that the defendant acted with deliberate indi ff erence 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 indi ff erence 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 indi ff erenceto inmate welfare rests upon the luxury enjoyed by prison offi cials of having time to make unhurried judgments, upon the chance for repeated re fl ection, 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 be tt er” and “protracted failure even to care, indi ff erence is truly shocking.” Id

.No. 19-1740 11

This element is the one Knightmore vigorously contests, arguing that imposing a deliberate indi ff erence requirementinappropriately “collapses the distinct right to informed consent granted under the Fourteenth Amendment into the prohibition against deliberate indi ff erence 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 defendan t must be deliberately indi ff erent to. In an Eighth Amendment claim, the question is whether the defendant was deliberately indi ff erent to the prisoner’s serious medical need. But here, in a Fourteenth Amendmentdue process claim, we ask whether the defendant was deliberately indi ff erent to the prisoner’s right to refuse treatment. Though both require deliberate indi ff erence, the inquiries are distinct. Stepping back illuminates the distinction. A physician is deliberately indi ff erent to a patient’s right to refuse treatmentif 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 wi thheld in order to decide whether to refuse the treatment. But a physician can be deliberately indi ff erent to a prisoner’s right to refuse treatment without being deliberately indi ff erent to his medical needs. Our tumor example shows as much.

The fi nal limitation the Second Circuit outlined in Pabon isa safety valve of sorts—allowing the right to medical information to give way when ou tweighed by a countervailing state interest. A prisoner’s right to refuse medical treatment can be infringed by a prison regu lation that is “reasonably related to legitimate penological interests.” Harper , 494 U.S. at 246 (quoting Turner v. Sa fl ey, 482 U.S. 78, 89 (1987)). A12 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 prison er would have refused it, then because there is no constitution al 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 Ci rcuit’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 fi rst establish that his right to informed consent was violated. To do this, the prisoner mustprove that (1) he was deprived of information that a reasonable patient would deem necessaryto make an informed decision about his medical treatment, (2) the defendant acted with deliberate indi ff erence 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 cons ent has been violated, we then take the second and fi nal step of balancing the prisoner’s rightto 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 su ffi ciently shown that Dr. Grossman was deliberately indi ff erent to his right to refuse treatment, particularly given the scope of the consent form. But we can stop short of answering that questionNo. 19-1740 13

because, at the very least, Knight failed to show that he wouldhave 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 di ff erent treatment. Even if he had submi tt ed that view in a sworn a ffi

davit, 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. Gro ssman summary judgment. For these reasons, we AFFIRM.