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|Feature Article 30.1.20|
Seventh Circuit Recognizes a Prisoner’s Right to Medical Information Under the Fourteenth Amendment
Written by: Bradley J. Taylor, Cassiday Schade LLP, Springfield
Even after the Prison Litigation Reform Act was passed to reduce the number of frivolous lawsuits filed by incarcerated individuals, prison litigation remains a prevalent and pervasive reality for many. Among prisoners, medical treatment remains a major source of litigation, to the chagrin of many state officials and private healthcare providers. Under the Eighth Amendment “deliberate indifference” standard, however, plaintiffs face an uphill battle to prove that their medical care, or lack thereof, amounted to a constitutional violation. Plaintiffs must show not only that they suffered a serious medical condition or risk, but that state officials or healthcare providers actually knew of that condition or risk, and consciously disregarded it. Estelle v. Gamble, 429 U.S. 97, 104 (1977).
Given that background, the recent ruling in Knight v. Grossman, 942 F.3d 336 (7th Cir. 2019) by the Court of Appeals for the Seventh Circuit may have broad implications for prisoners seeking to vindicate purported wrongs related to their medical treatment. The court recognized that prisoners have a Fourteenth Amendment right to medical information, which runs parallel to their right to refuse medical treatment.
Dewayne Knight, a prisoner at the Waupun Correctional Institution in Waupun, Wisconsin, sought treatment for a basketball injury to his left knee. Knight, 942 F.3d at 339. Dr. Grossman diagnosed him with a tear in his anterior cruciate ligament (ACL) and performed a surgery to correct the tear. Id. Years later, Knight suffered another injury to his left knee and again sought treatment from Dr. Grossman. Id. Dr. Grossman, without consulting an MRI, diagnosed Knight with a torn ACL revision, and offered to repair the tear by way of a “[r]evision left anterior cruciate reconstruction with donor site from right knee.” Id. In that surgery, a surgeon will open both knees and use tissue from a patient’s undamaged knee to repair his injured knee. Id. After being warned of the surgery’s risks, Knight agreed to the operation and signed a consent form authorizing the ACL revision surgery. Id.
After opening Knight’s left knee, however, Dr. Grossman discovered that Knight’s ACL was not torn, but rather found “surface damage to the cartilage . . . , narrowing of the space between the two bumps at the end of the thigh bone . . . , and bony overgrowths on the kneecap.” Id. Dr. Grossman immediately revised his diagnosis and determined that Knight’s pain was caused by “degenerative joint disease or arthritis.” Id. Instead of closing up Knight’s knee, Dr. Grossman performed an alternative, but arguably no more invasive, surgery to address Knight’s degenerative bone disease. Id. After awakening to find that only his left knee had been operated on, Knight was left none the wiser as to Dr. Grossman’s revised diagnosis and alternative surgery. Id. at 340. Knight only learned of the changed procedure three months later at a follow up appointment with Dr. Grossman. Id. Since the surgery, Knight alleged that his condition had deteriorated. Id.
Knight brought suit under 42 U.S.C. § 1983. Id. He alleged deliberate indifference to his medical needs in violation of the Eighth Amendment and a violation of his right of informed consent under the Fourteenth Amendment. Id.
The district court granted summary judgment in favor of the defendants. Id.
Knight’s Eighth Amendment Claim
On appeal, the Seventh Circuit noted that to win on an Eighth Amendment inadequate medical care claim, Knight had to show that he suffered a serious medical condition and that a state official responded to the condition with deliberate indifference. Id. (citing Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016)). Defendant Grossman admitted that Knight’s knee condition was an objectively serious medical condition. Knight, 942 F.3d at 340. Dr. Grossman argued, however, that he had not been deliberately indifferent to Knight’s medical condition. Id.
The court defined deliberate indifference for Eighth Amendment purposes as when a defendant “knows of and disregards an excessive risk to inmate health or safety.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Knight argued that Dr. Grossman had been deliberately indifferent to his “right to informed consent.” Knight, 942 F.3d at 340. The court, however, noted that the right of informed consent is a liberty interest protected by the Fourteenth Amendment—not the Eighth Amendment. Id. The court quickly affirmed the grant of summary judgment in favor of Dr. Grossman on the Eighth Amendment claim, as “no reasonable jury could find that Dr. Grossman acted with deliberate indifference to Knight’s knee condition.” Id. at 341.
Knight’s Fourteenth Amendment Claim
The court first acknowledged that “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.” Id. at 342 (quoting Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990)). Prisoners retain that liberty interest, despite their incarceration. Knight, 942 F.3d at 342 (citing Washington v. Harper, 494 U.S. 210, 221-22 (1990)). The Seventh Circuit, however, had not yet ruled on whether prisoners retained the corollary right of informed consent, namely, the right to receive information required to make an informed decision regarding treatment options. Knight, 942 F.3d at 342. The court found that they did, noting that “[t]he 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.” Id.
The Seventh Circuit went on to outline four elements necessary for a prisoner to prove a Fourteenth Amendment right to medical information claim. Id. at 342-43. First, the plaintiff 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. at 342 (citing Pabon v. Wright, 459 F.3d 241, 251 (2d Cir. 2006)). This first element concerns only the plaintiff’s state of mind and is entirely subjective.
Second, the plaintiff must show that a reasonable person would consider the information “necessary to make an informed decision.” Knight, 942 F.3d at 342 (citing Pabon, 459 F.3d at 250). As it is measured against a reasonable person, the second element is an objective standard. The first two elements concern the plaintiff’s state of mind, both subjectively and objectively. Subjectively, the plaintiff must show that he or she would have refused the treatment had he or she been made aware of the potential side effects. Objectively, the plaintiff has the burden to show that such a refusal would have been reasonable under the circumstances.
Third, the plaintiff must show that the “defendant acted with deliberate indifference to his right to refuse medical treatment.” Knight, 942 F.3d at 343 (citing Pabon, 459 F.3d at 251). The court noted that the deliberate indifference standard was appropriate because “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.” Knight, 942 F.3d at 343 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998)). Given the “extended opportunities to do better,” deliberate indifference would “shock the conscience.” Knight, 942 F.3d at 343 (citing 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)).
The court took care to distinguish this deliberate indifference element from that in an Eighth Amendment inadequate medical care case. Although both require actual awareness and conscious disregard, the subject of that awareness differs. In an Eighth Amendment inadequate medical care case, the plaintiff must prove that the defendant was actually aware of and consciously disregarded a serious medical condition or risk. Estelle, 429 U.S. at 104. In a Fourteenth Amendment right to medical information case, the plaintiff must show that the defendant was actually aware of and consciously disregarded “plaintiff’s right to refuse treatment.” Knight, 942 F.3d at 343.
By way of example, the court noted that 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.” Id. In right to medical information cases, the latter awareness would be operative. The plaintiff must show that defendant was aware that the patient (or, presumably, a reasonable person in the plaintiff’s position) would want to know the withheld information prior to making his or her decision. Id.
Lastly, the Seventh Circuit noted that, as a final balancing test, the right to medical information must “give way to a countervailing state interest.” Id. Namely, a right to refuse medical treatment is subordinate to any prison regulation “reasonably related to legitimate penological interests,” like forced medication intended to prevent the spread of communicable diseases or to “quell disruptive behavior.” Id. (quoting Harper, 494 U.S. at 246). This stands to reason because if the prisoner has no right to refuse the treatment, “there is no corollary right to be informed about the treatment.” Knight, 942 F.3d at 343 (citing Pabon, 459 F. 3d at 252).
This test is applied in two steps. First, the prisoner plaintiff must make an affirmative showing 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.” Knight, 942 F.3d at 344. If the prisoner plaintiff can make the requisite showing, then the court will turn to the second step—the balancing test between the prisoner’s right to informed consent and any countervailing state penological interests. Id.
Ultimately, Knight failed to sufficiently show that he would have refused the surgery had he been informed of its risks and the court affirmed the grant of summary judgment. Id.
In recognizing a prisoner’s right to medical information under the Fourteenth Amendment, the Seventh Circuit has opened a new potential avenue of litigation for prisoners dissatisfied with their medical treatment. Some might argue that the right was implicit in a prisoner’s right to refuse treatment and the court merely put a name on it with its ruling in Knight. The court itself, after all, noted that the right to medical information was a “corollary” to the liberty interest of refusing treatment. Id. at 342.
Others will object to such an impertinent interpretation and point out that courts do not lightly confer or extend constitutional protections, least of all to prisoners. Of those that feel the decision is momentous, some will see it as a triumph of civil rights. Others might fear that the ruling detracts from the purpose of the Prison Litigation Reform Act and invites the filing of more, not fewer, frivolous lawsuits. Some plaintiffs, fearing the high bar set in Eighth Amendment inadequate medical care cases, might opt for a Fourteenth Amendment right to medical information claim instead. Of course, both require showing that the defendant was “deliberately indifferent,” but the subject matter differs as to what. Will it be easier to show that a defendant was deliberately indifferent to plaintiff’s right to medical information, as opposed to a serious medical condition or risk?
Further, the reach of a prisoner’s right to medical information is not yet well-defined in the Seventh Circuit. The court recognized that a prisoner was “entitled only to such information as a reasonable patient would deem necessary to make an informed decision.” Id. That, however, like all objective legal standards, begs the question: who is a reasonable person?
As with all rulings, only time will tell how this decision impacts future prison litigation as well as its practical consequences for inmates and litigators.
About the Author*
Bradley J. Taylor is an Associate Attorney with Cassiday Shade LLP. He focuses his practice on civil litigation. Prior to joining Cassiday Schade, Mr. Taylor served more than nine years in the U.S. Army, during which he deployed twice to Afghanistan in support of Operation Enduring Freedom. During his military career, he achieved the rank of Staff Sergeant, served in Europe, Asia, the Middle East, and oversaw the training and combat operations of several soldiers. Mr. Taylor received numerous awards throughout his career as a soldier, including multiple Army Achievement Medals, the Army Commendation Medal, the Afghanistan Service Medal with two stars, the Korean Defense Service Medal, a Joint-Service Achievement Medal, and a Joint-Service Commendation Medal, among others. Mr. Taylor earned his J.D. from Southern Illinois University School of Law where he graduated summa cum laude and was a member of the SIU Law Journal. He received his BA. in Criminology and Criminal Justice from Southern Illinois University, Carbondale. Mr. Taylor may be reached at firstname.lastname@example.org.