Judges: Per Curiam
Filed: Apr. 14, 2016
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 13, 2016* Decided April 14, 2016 Before JOEL M. FLAUM, Circuit Judge KENNETH F. RIPPLE, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 15-2210 SHAWN M. BAHRS, Appeal from the United States District Plaintiff-Appellant, Court for the Central District of Illinois. v. No. 13-2142 THOMAS BAKER and WEXFORD Harold A. Bak
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 13, 2016* Decided April 14, 2016 Before JOEL M. FLAUM, Circuit Judge KENNETH F. RIPPLE, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 15-2210 SHAWN M. BAHRS, Appeal from the United States District Plaintiff-Appellant, Court for the Central District of Illinois. v. No. 13-2142 THOMAS BAKER and WEXFORD Harold A. Bake..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 13, 2016*
Decided April 14, 2016
Before
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐2210
SHAWN M. BAHRS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 13‐2142
THOMAS BAKER and WEXFORD Harold A. Baker,
HEALTH SOURCES, INC., Judge.
Defendants‐Appellees.
O R D E R
Shawn Bahrs, an Illinois inmate suffering from Stage 4 colon cancer, brought this
suit under 42 U.S.C. § 1983 against Thomas Baker, a prison doctor, and Wexford Health
Sources, Inc., the healthcare provider at Western Illinois Correctional Center. Bahrs
claimed that the defendants had acted with deliberate indifference in not diagnosing
and treating his cancer sooner. A jury returned a verdict for the defendants, and the
district court denied Bahrs’s postjudgment motion arguing that inadequate
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 15‐2210 Page 2
performance by his pro bono counsel warranted a new trial. Bahrs now appeals,
challenging the denial of his postjudgment motion along with other evidentiary and
procedural rulings. We reject his appellate claims and affirm the judgment in favor of
the defendants.
At trial the parties differed about the conclusions to be drawn from the evidence,
but for the most part the underlying facts were not disputed. Bahrs was assigned to the
Western Illinois Correctional Center in the fall of 2011, and not long after he complained
to a nurse about frequent diarrhea and abdominal pain. He was told that he would be
scheduled to see a doctor, but his follow‐up inquiries and even a grievance did not
prompt action by infirmary staff. So it was not until four months after he reached the
prison that Bahrs first saw Dr. Baker, a general practitioner.
During that first visit in January 2012, Bahrs reported that he had been diagnosed
previously with irritable bowel syndrome. For a year, he said, he had been experiencing
abdominal pain, multiple episodes of diarrhea each day, and occasional blood in his
stools. Bahrs also told the doctor that he was experiencing bloating, gas, and pain from
cramps. And he had lost seven pounds since entering the prison. Bahrs told Dr. Baker
that his family had a history of prostate cancer but not colon cancer. Dr. Baker’s
physical examination did not reveal any abnormality except for an anal fissure, which
he described at trial as a “crack in the skin.” Dr. Baker concluded that the fissure was
the likely source of the blood in Bahrs’s stools. He ordered blood tests, screening for
prostate cancer, and an abdominal X‐ray. Dr. Baker testified at trial that Bahrs, who was
48 years old at the time of his first appointment, was not due to start regular
colonoscopy screenings until age 50. Even so, after that first appointment he noted in
Bahrs’s chart that a colonoscopy might become necessary. He prescribed loperamide
(marketed as Imodium) for the diarrhea and Tylenol for the abdominal pain.
When Bahrs returned two weeks later, Dr. Baker explained that the test results
were mostly normal. The X‐ray, he said, showed a significant amount of stool in the
colon, but he did not think that was unusual. The blood test, however, had indicated
anemia, so Dr. Baker ordered a repeat test. Bahrs reported that the loperamide had
eased his diarrhea but the cramping continued. Bahrs also said that he no longer saw
blood in his stools, which was confirmed by another laboratory test. Dr. Baker
examined Bahrs’s rectum and saw that the fissure had healed, supporting his theory
that the fissure was the source of the blood. Dr. Baker renewed the prescription for
loperamide, scheduled a follow‐up appointment, and ordered the nursing staff to
No. 15‐2210 Page 3
monitor Bahrs’s weight over the next month. He again noted in Bahrs’s chart that a
colonoscopy might be needed.
Bahrs had expected to see Dr. Baker for the follow‐up in March 2012, but he met
instead with a nurse practitioner. Bahrs reported that his diarrhea had been less
frequent since the last visit. His weight remained stable. His energy level still was low,
though he was able to play soccer. Afterward, two more appointments with Dr. Baker
were scheduled—for two and three weeks later—but both were cancelled without
explanation.
Meanwhile, the grievance that Bahrs had filed before his first visit with Dr. Baker
finally was addressed by the doctor. Dr. Baker responded in writing that he had seen
Bahrs twice after the grievance was filed, in January and February 2012, and that several
tests had been performed initially. He noted the possible diagnosis of irritable bowel
syndrome and the positive effect of the loperamide. He added that more tests had been
ordered after results showed that Bahrs was anemic.
Bahrs saw Dr. Baker for the third time on April 2, 2012. Bahrs still reported
diarrhea and cramping, but the fissure had not reappeared, and there was no evidence
of blood in Bahrs’s stools. After Bahrs asked whether a parasite or bacteria could be
causing his diarrhea, Dr. Baker ordered additional tests and prescribed antibiotics.
Dr. Baker also prescribed dicyclomine to relieve the cramping and scheduled another
appointment for the following month. At trial Dr. Baker testified that, so far while
treating Bahrs, he had not observed anything causing him to suspect cancer. He
explained that Bahrs’s diarrhea had appeared to improve with medication, his vital
signs and weight were stable, and he had not reported a family history of colon cancer.
Bahrs returned to Dr. Baker for the fourth time on May 2. He still reported
experiencing diarrhea three times a day and frequent cramping, so Dr. Baker decided
that it was time to involve a gastroenterologist to assess the need for a colonoscopy.
Dr. Baker requested that Wexford’s utilization management team approve the referral
but on the paperwork characterized the need for the outside specialist as not “urgent.”
A Wexford committee approved that request but suggested admitting Bahrs to the
infirmary for a few days to monitor his diarrhea. For two days Bahrs stayed at the
infirmary while nurses tracked the nature and frequency of his bowel movements. He
told Dr. Baker that he felt as if something was lodged in his bowel. On May 9, one week
after submitting the referral request, Dr. Baker received approval from Wexford for the
outside consultation. He scheduled the appointment for June 29, which, he said at trial,
was the date offered by the gastroenterologist’s office.
No. 15‐2210 Page 4
After examining Bahrs on June 29, the gastroenterologist opined that a
colonoscopy was needed. Dr. Baker concurred and four days later asked Wexford for
approval, which was given a week later. The gastroenterologist, Dr. Baker testified, did
not specify when to schedule the colonoscopy or suggest that Bahrs’s situation was an
emergency, and when he called to schedule the appointment, the gastroenterologist’s
office offered a date in August 2012. Dr. Baker saw Bahrs three times during July and
assured him that a colonoscopy had been scheduled. At the last minute, however, the
appointment was pushed back a week because, Bahrs says, the medical staff had not
properly prepared him for the procedure.
On August 31, 2012, the gastroenterologist performed the colonoscopy and
discovered a softball‐sized tumor in Bahrs’s colon. The gastroenterologist
recommended a biopsy and surgery to remove the tumor because it was causing
blockage. Two weeks later, on September 14, the biopsy results revealed that the mass
was cancerous. Dr. Baker then submitted an urgent request to Wexford for an oncology
referral, which was approved the same day. The oncologist examined Bahrs on
September 20, performing a CT scan and recommending surgery to remove the mass.
Dr. Baker approved that recommendation the following day.
A surgeon examined Bahrs one week later, on September 26, and recommended
immediate surgery to relieve the blockage in Bahrs’s colon. That procedure was
performed the same day after Dr. Baker obtained emergency approval. The tumor was
removed a week later, and because of complications a third surgery followed to remove
Bahrs’s spleen and part of his colon. When Bahrs returned to the prison on October 24,
Dr. Baker referred him for a follow‐up appointment with the oncologist, who in
December 2012 diagnosed Bahrs with Stage 2 high‐risk colon cancer and recommended
six months of chemotherapy.
In June 2013, around the time that Bahrs completed his chemotherapy, he
brought this suit claiming deliberate indifference against Dr. Baker and Wexford.
Dr. Baker, he theorized, should have ordered a colonoscopy after the X‐ray in January
2012 revealed a large amount of stool in his colon. Instead Dr. Baker waited until May
to order the colonoscopy, which did not occur until the end of August. Moreover, Bahrs
asserted, Dr. Baker had aggravated his condition by prescribing loperamide, which
caused Bahrs’s stools to harden and lodge in his colon, requiring surgery to remove
parts of his colon and spleen. Bahrs included no specific allegations in his complaint
No. 15‐2210 Page 5
about Wexford other than the role the company played in approving Dr. Baker’s
requests for outside medical treatment.1
The district court recruited counsel to represent Bahrs, and the case proceeded to
trial in April 2015. Dr. Baker and Bahrs were the only witnesses. Dr. Baker testified that
from the very first appointment he took seriously Bahrs’s complaints of diarrhea and
abdominal pain. He did not simply accept Bahrs’s prior diagnosis of irritable bowel
syndrome, he said, instead running tests to look for other causes. But, Dr. Baker
explained, Bahrs had not reported a family history of colon cancer. Moreover, the
doctor said, he had not seen any sign of cancer. The loperamide had improved Bahrs’s
diarrhea, and no more blood was detected in his stools after the rectal fissure had
healed. Nevertheless, Dr. Baker continued, he decided in May 2012 to refer Bahrs to a
gastroenterologist. From that point, Dr. Baker testified, any delay in scheduling the
colonoscopy was attributable to the gastroenterology office.
After the jury found for the defendants, Bahrs’s lawyer withdrew. Bahrs then
filed a pro se motion for a new trial arguing that counsel had been deficient in not
calling expert witnesses. The district court denied the motion in a minute entry,
reasoning that the Constitution does not guarantee effective representation in civil
litigation.
Bahrs raises three arguments on appeal, but none is persuasive. First, he repeats
the contention from his postjudgment motion that counsel was deficient in not calling
experts to testify that Dr. Baker should have known sooner of the substantial risk of
colon cancer. Bahrs notes that he even supplied counsel with the names of the
gastroenterologist and surgeon who treated him but, he asserts, the lawyer never
contacted them. Bahrs has attached to his appellate brief an affidavit from his sister, in
which she tells us that after the trial she learned from Bahrs’s surgeon that he would
have testified on the plaintiff’s behalf but was never contacted by the lawyer. But even
if Bahrs’s lawyer never contacted the doctors, the district court correctly recognized that
the performance of Bahrs’s lawyer was not a ground for a new trial because Bahrs
lacked a constitutional or statutory right to effective counsel in this civil case. See Turner
v. Rogers, 131 S. Ct. 2507, 2516 (2011); Cavoto v. Hayes, 634 F.3d 921, 924 (7th Cir. 2011);
Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001).
1 In his complaint Bahrs noted that he also had filed a malpractice suit in state
court against a doctor and nurse who had treated him at a county jail. Bahrs did not
assert any state‐law claims in this litigation.
No. 15‐2210 Page 6
Bahrs next argues, for the first time on appeal, that the district court improperly
instructed the jury by suggesting that he must prove that the defendants knew he had
colon cancer, rather than the lesser showing that they knew of a substantial risk of colon
cancer. See Farmer v. Brennan, 511 U.S. 825, 842 (1994); Gevas v. McLaughlin, 798 F.3d 475,
480 (7th Cir. 2015). Bahrs takes issue with the following jury instruction: “Plaintiff
claims that the defendants … have been deliberately indifferent to the plaintiff’s serious
medical need for treatment of his colon cancer.” He says this instruction—along with
defense counsel’s statements during closing argument that the jury must find that
Dr. Baker “actually [knew] in his heart of hearts [that] the Plaintiff had cancer or a
substantial risk of cancer,” and “he’s got to actually know that the plaintiff had
cancer”—misled the jury.
Bahrs’s lawyer did not object to any jury instruction in the district court, so we
review the challenged instruction for plain error. See FED. R. CIV. P. 51(d)(2); Higbee v.
Sentry Ins. Co., 440 F.3d 408, 409 (7th Cir. 2006). But there is no error here. The court’s
instruction does not imply that the defendants must have known that Bahrs had cancer,
and the instruction is almost a direct quote from the court’s final pretrial order, which
both parties approved in advance. Moreover, any ambiguity would have been resolved
by the court’s instruction on deliberate indifference, which tracks the language of our
pattern jury instructions: “When I use the term ‘deliberately indifferent,’ I mean that the
defendants actually knew of a substantial risk of serious harm and that the defendants
consciously disregarded this risk by failing to take reasonable measures to deal with it.”
See Pattern Civil Jury Instructions of the Seventh Circuit 7.14 (2015); Francis v. Franklin, 471
U.S. 307, 318–19 (1985) (explaining that challenged jury instruction must be read in
context with other instructions); Cotts v. Osafo, 692 F.3d 564, 568 (7th Cir. 2012)
(“Sometimes other jury instructions can explain with sufficient clarity any ambiguity in
a challenged instruction.”). And although during closing argument opposing counsel
incorrectly stated that the defendants had “to actually know that the plaintiff had
cancer,” the lawyer also acknowledged several times that knowledge and disregard of a
substantial risk would suffice to establish liability. Counsel’s misstatement likely carried
less weight than the district court’s subsequent instructions to the jury on the proper
burden of proof and thus does not warrant a new trial. See Boyde v. California, 494 U.S.
370, 384–85 (1990) (noting that “arguments of counsel generally carry less weight with a
jury than do instructions from the court”); Sanchez v. City of Chicago, 700 F.3d 919, 929
(7th Cir. 2012) (same).
Finally, Bahrs argues that the district court abused its discretion in excluding
from evidence the grievance he filed complaining about the delay in scheduling his first
No. 15‐2210 Page 7
appointment with Dr. Baker. During Bahrs’s direct examination his lawyer attempted to
introduce the grievance into evidence so that Bahrs could read it to the jury. The
defendants objected on the ground that the grievance was inadmissible hearsay and
also irrelevant. The district court then asked Bahrs’s lawyer why Bahrs could not just
testify about the contents of the grievance rather than reading it, and the lawyer
responded that he did not “have a problem with … that.” Counsel thus withdrew his
request to introduce the grievance, and the court never ruled on its admissibility.
Without a ruling, we have nothing to review. And, anyway, it is unclear how the
grievance would have been relevant to showing that Dr. Baker had delayed Bahrs’s
care. Dr. Baker testified that he did not recall this particular grievance, and the form
itself does not show that he knew about the grievance before answering it. That
Dr. Baker answered the grievance three months after Bahrs submitted it does not show
that the defendant knew about the grievance as soon as it was filed.
For the foregoing reasons, we AFFIRM the judgment of the district court.