Dean v. Wexford Health Sources, Inc.

Record did not support jury’s verdict in favor of plaintiff in plaintiff-prisoner’s action, alleging that defendants-two prison doctors and entity employing said doctors violated his 8th Amendment rights by being deliberately indifferent to his medical needs by failing to act promptly when he presented symptoms of kidney cancer, such that by time plaintiff had surgery to remove said kidney seven months later, plaintiff’s cancer had spread to his liver. While plaintiff’s claim against entity was focused on entity’s use of its “collegial review” policy, which required entity’s corporate office to pre-approve offsite care except in certain circumstances, and was based on submission of two Lippert reports that contained negative assessment of collegial review policy, both reports contained only hearsay information. And although Dist. Ct. admitted both reports for non-hearsay purpose of showing that entity had prior notice of said experts’ negative assessment of entity’s collegial review policy, second report could not give entity notice of anything, since it was drafted after treatment given to plaintiff. Moreover, first report was insufficient to hold entity liable under Monell, since: (1) plaintiff could only establish single-incident case with respect to entity’s use of collegial review policy, while Monell required plaintiff to show pattern of similar constitutional violations arising out of use of said policy; and (2) plaintiff failed to produce evidence that entity had knowledge that its use of collegial review policy constituted 8th Amendment violation. Also, with respect to defendant’s 8th Amendment claims against both doctors, plaintiff could only show that one doctor’s action in ordering ultra-sound as opposed to CT scan was exercise in medical judgment and was, at best, act of mere negligence. Moreover, plaintiff could not establish causation with respect to other doctor, where plaintiff could not show that said doctor was responsible for any of challenged delays. Defendants, though, did not challenge jury’s verdict in favor of plaintiff on his medical malpractice claims. (Dissent filed.)