JOHN K. BUSH, Circuit Judge.
The Eighth Amendment bars the inflict[ion] of cruel and unusual punishments. U.S. Const. amend. VIII. This case addresses how that constitutional provision applies to the medical treatment rendered by two prison doctors to an inmate who suffered from end-stage liver disease (ESLD).
Kenneth Rhinehart (Rhinehart), then a prisoner, filed this action under 42 U.S.C. § 1983, alleging that medical providers associated with the Michigan Department of Corrections (MDOC) denied him necessary treatment for his ESLD. When he died, his brothers, Lewis and David Rhinehart (the Rhineharts), filed an amended complaint on behalf of his estate. After defendants filed motions to dismiss and motions for summary judgment, only the Rhineharts Eighth Amendment claims against Dr. Adam Edelman and Dr. Vernon Stevenson (the Defendant Doctors) remained. The district court granted summary judgment to the Defendant Doctors, and the Rhineharts appealed. For the reasons below, we AFFIRM the judgment of the district court.
I.
In the summer of 2009, Rhinehart was an inmate at Alger Maximum Correctional Facility (Alger) in Munising, Michigan. He was 58 years old but in poor health. He had been suffering from many medical conditions, including liver disease, and for the past four years, he had been experiencing general malaise, weight loss, and poor appetite. In August 2009, his prison doctor, Aster Berhane, ordered a CAT (CT) scan of his abdominal area, which revealed a suspicion of bile duct cancer. The parties agree that Rhinehart did not in fact have cancer then or at any other time before his death.
But that was unknown in the fall of 2009, so Dr. Berhane arranged to transfer Rhinehart downstate for further investigation of this potential cancer. She contacted defendant Dr. Edelman about transferring Rhinehart to Cotton Correctional Center (Cotton). Dr. Edelman was the medical director for utilization management at Corizon Health Inc. (Corizon), a company responsible for on-site medical services for all state inmates. He studied internal medicine, but his experience was mainly administrative. His job was to review requests for outside treatment, which other medical providers generally submitted on a form called a 407. Such requests were necessary for a prisoner to be referred to a specialist within Corizons referral network.
Dr. Berhane arranged an expedited, doctor-to-doctor transfer from Alger to Cotton. She also submitted a 407 request to refer Rhinehart to an oncologist (cancer specialist) or hepatologist (liver specialist) for a biopsy of the potential cancer. Dr. Edelman approved the referral request.
Around that same time, Dr. Berhane also contacted defendant Dr. Stevenson-a general internist doctor, Corizon employee, and the senior doctor on staff at Cotton-to inform him about Rhineharts medical issues. During his deposition, Dr. Stevenson testified that he understood that Rhinehart had very urgent issues and needed to be seen by a specialist for abnormal liver findings. R.263-3, Stevenson Dep., Page ID# 5025-26.
The Rhineharts presented evidence that the Cotton facility assigned inmates to doctors based on their prison number, and that generally, an assigned doctor was responsible for developing an inmates treatment plan and examining that inmate (unless the doctor was unavailable to do so). Rhineharts prison number revealed that he was assigned to Dr. Stevenson.
Rhinehart was transferred to Cotton on October 26, 2009, but saw no doctor until about two months later. This delay is attributable to a failure by the nursing staff at Cotton in processing Rhineharts intake and scheduling him for a medical-provider visit. During the time that Rhinehart had not seen a doctor, he filed complaints and grievances expressing concern about not being referred for a biopsy of his liver to determine his cancer risk. He also asked to see a doctor because of increasing pain in his liver and abdominal area and consequent difficulty in performing his porter job.
Dr. Stevenson testified that he did not receive notifications of inmate complaints or copies of grievances. But he recalled that in mid-December 2009, Cottons Health Unit Manager, Beth Gardon, told him that Rhinehart had been at Cotton for six weeks and had not been seen for an intake. Upon hearing this, Dr. Stevenson directed Gardon to bring Rhinehart in for an appointment. The Cotton staff scheduled Rhinehart to see Dr. Stevenson three weeks later. When it came time for Rhineharts appointment, however, Dr. Stevenson was too busy, so he arranged for another doctor, Dr. Padmaja Vemuri, to examine Rhinehart.
From early January until the end of February 2010, Rhinehart had several appointments with prison medical providers but none with Dr. Stevenson. Dr. Vemuri first examined Rhinehart on January 4, 2010; he complained about weight loss and discomfort in his liver area. Dr. Vemuri noted that a request for Rhinehart to be referred to an oncologist had already been approved, and she set forth a plan to have the oncology appointment made, to have laboratory testing conducted, and for Rhinehart to have an appointment with the gastrointestinal clinic. After this appointment, Rhinehart attended several more doctor appointments in January 2010 with Dr. Vemuri and another prison doctor, Dr. Zivit Cohen. On February 3, 2010, Dr. Cohen obtained approval for an ultrasound of Rhineharts liver, which was completed about a week later.
Rhinehart was not satisfied with the care that he had received. He filed a grievance related to his first appointment with Dr. Vemuri in which he stated that he was experiencing severe pain and she failed to prescribe him pain medication. After that, he sent letters of complaints to medical and legal officials and filed a pro se lawsuit raising his concerns about his risk for cancer and the lack of care he was receiving.
Rhineharts grievance for lack of pain medication was upheld on January 22, 2010. A little less than a month later, Dr. Cohen saw him for his complaints of abdominal discomfort and prescribed him pain medication.
Shortly after that appointment, a Jackson, Michigan newspaper ran an article reporting that Rhinehart probably had cancer and was in pain but had not been given a referral to a specialist, a liver biopsy, a treatment plan, pain pills, or an explanation for the delay. The article was followed by a call from the ACLU to the Michigan Attorney Generals Office. This call resulted in a few internal emails among prison medical staff that showed some confusion about whether Rhineharts cancer risk had been ruled out.
Three days after this exchange of emails, on February 25, 2010, Dr. Stevenson and Dr. Eddie Jenkins (the Regional Medical Director) examined Rhinehart. Rhinehart complained of abdominal pain, nausea, bilateral back and flank pain, blood in his urine, and a decreased urine stream. Dr. Stevenson reassured Rhinehart that he had no mass or cancer, ordered urine and laboratory tests, and scheduled a follow-up appointment in three weeks.
After that, Dr. Cohen monitored Rhinehart. She regularly examined him, ordered laboratory tests, and treated his pain. On March 8, Dr. Cohen saw Rhinehart for his ESLD. Dr. Cohen conducted a physical exam and noted improvements, including that he presented with an okay appetite, stable weight, and a reduction in his pain under the prescribed pain medication. In April, Rhinehart had additional follow-up appointments. Dr. Cohen conducted another full examination, prescribed Ensure, ordered lab work, and scheduled a one-month follow-up appointment. Then in May, Dr. Cohen gave Rhinehart a detail for a light duty work assignment to accommodate his pain. And when Rhinehart reported increased pain, Dr. Cohen prescribed methadone for him, which, during his May follow-up appointment, Rhinehart reported was working well.
But that summer, Rhineharts condition took a turn for the worse. On June 20, 2010, about eight months after his transfer to Cotton, the Cotton medical staff transferred Rhinehart to the emergency room of Allegiance Hospital. The Cotton staff sent him there because he had been complaining of bloating, increased pain in his spleen/liver, general malaise, and fatigue. At the hospital, he presented with constipation, hallucinating, and abdominal pain. He was admitted and treated until his discharge on June 30, 2010.
A brief review of the Rhineharts medical literature and expert testimony is necessary here. Liver disease can lead to cirrhosis of the liver-the deterioration of the liver when scar tissue replaces healthy liver tissue. Cirrhosis causes increased pressure in the veins that carry blood to and from the liver. This increased blood pressure can cause the formation of dilated veins in the esophagus, esophageal varices. These varices carry the risk of bleeding, a risk that increases along with the pressure and sizes of the varices. One way for a specialist to diagnose esophageal varices is by inserting a scope into the esophagus-a procedure known in the medical field as Esophagogastroduodenoscopy (EGD) scoping. When esophageal varices are found, first level treatment includes prescribing medications such as beta blockers (which decrease blood pressure), EGD scoping and ligation banding performed by a specialist (which obliterate the varices), or some combination of both.
After Rhinehart was admitted into the hospital, he underwent a series of tests, including a CT scan of his abdomen with contrast, an MRI, and an ultrasound. These tests revealed no liver mass but extensive portal venous thrombosis (blood clotting in the vein that carries blood to the liver). His hospital records show that no definitive intervention was felt to be indicated other than beta blockers and an EGD to rule out/assess esophageal varices. R.259-2, Discharge Summary, Page ID# 4706. Dr. Lynn Schachinger, a hospital gastroenterologist, performed an EGD, which revealed four columns of esophageal varices with no active bleeding; he successfully placed seven ligation bands to obliterate the varices.
In his post-procedure report, Dr. Schachinger recommended that Rhinehart followup [sic] as an outpatient with the prison gastroenterologist for additional EGD with esophageal banding as necessary. R.177, Endoscopy Report, Page ID# 2421. In his deposition, Dr. Schachinger testified that the risk of [Rhineharts] bleeding from [his varices] was higher because of the size of the varices and that if he had a patient with Rhineharts conditions under his exclusive control, he would have reevaluated Rhineharts varices a month later. R.263-13, Schachinger Dep., Page ID# 5399-4000. He also testified that he probably would have referred [such a patient] to a tertiary care center that performs a liver transplant to see if at some point that might become necessary, but emphasized that the decision to order a transplant would be up to the hepatologist as they deem necessary. Id. at 4000. The Rhineharts expert witness, gastroenterologist Dr. Stuart Finkel, agreed. In his deposition, he testified that in the weeks and months after Rhineharts June 2010 hospitalization, [i]n the private world setting, Dr. Schachinger would have recalled the patient in a timely fashion for a repeat [EGD] and banding session. R.263-14, Finkel Dep., Page ID# 5442. He also agreed with Dr. Schachingers opinion that he would have referred Rhinehart for evaluation for a liver transplant. Id.
The day after his discharge from the hospital, Dr. Cohen saw Rhinehart. She reviewed his hospital records, ordered lab work, prescribed a beta-blocker medication (Propranolol ) to reduce his blood pressure, and scheduled a one-week follow-up appointment. Rhinehart was not referred for follow-up appointments with a gastroenterologist. Instead, Dr. Cohen continued to monitor Rhinehart that month, examining him on July 8 and again on July 19.
The next month, August 2010, Dr. Stevenson left his employment with Corizon. At that time, Dr. Edelman was still working for Corizon, but he did not become re-involved in Rhineharts healthcare until May 17, 2011.
In June 2011, the Cotton medical staff again sent Rhinehart to Allegiance Hospitals emergency room after he complained of increased abdominal pain. R.178, Progress Note, Page ID# 2437-40. An MRI showed progression of disease on comparison with previous imaging from June of 2010. Id . at Page ID# 2437. A CT-guided biopsy was negative for a malignancy. The gastroenterologists discharge plan included a repeat MRI of Rhineharts abdomen in four weeks and, if Rhineharts tumor worsened, an evaluation at a tertiary care center. Id . at Page ID# 2437, 2439. Dr. Edelman approved the request for Rhinehart to have an MRI of his liver on July 5, 2011. The results were unchanged in comparison to the MRI completed a month earlier. The MRI also showed blockage of the portal vein (the vein that carries blood to the liver). After Rhinehart had blood drawn, Dr. Nancy McGuire, who was now Rhineharts medical provider, discussed his case with Dr. Edelman.
Around this same time, Rhinehart had moved for a temporary restraining order requesting that he be seen by a hepatologist, oncologist, or qualified liver specialist to be evaluated for a liver transplant-the only curative treatment option for ESLD. In responding to the motion, Dr. Edelman and Dr. Kosierowski (an oncologist and Corizon consultant) signed affidavits. They declared that they had discussed Rhineharts case and had determined that there was no need to send Rhinehart to a specialist. R.258-4, Affidavits of Dr. Edelman and Dr. Kosierowski, Page ID# 4500-09. Both Dr. Edelman and Dr. Kosierowski stated in their affidavits that Rhinehart likely did not have cancer. Id. As for a liver transplant, they avowed that Rhinehart was an unlikely candidate. Id. In his affidavit, Dr. Edelman explained how liver transplants are assigned and why Rhinehart was not realistically eligible to receive one:
Liver transplants are judged by the Model for End-State Liver Disease (MELD) system to prioritize patients waiting for a liver transplant. The range is from 6 (less ill) to 40 (gravely ill). The individual score determines how urgently a patient needs a liver transplant within the next three months. The number is calculated using the most recent laboratory tests. Mr. Rhinehart, based on his most recent laboratory tests, would likely score very low on the scale and therefore would not be considered for transplant at this time.
Id. at 4507-08.
In his deposition years later, Dr. Finkel disputed Dr. Edelmans and Dr. Kosierowskis opinions about Rhineharts eligibility for a liver transplant. He opined that livers are allocated to patients who are in the worst condition. And then, if nobody is available who is a match, it goes down the line to better candidates. Maybe he would have received a liver, maybe he wouldnt have received a liver, but he would have been a candidate. R.263-14, Finkel Dep., Page ID# 5442. Dr. Finkel admitted that Rhineharts MELD score of 7 (out of 40) would not have placed him at the top of the list for [a] liver transplant but opined that contrary to Dr. Edelmans testimony, it would not have eliminated him or knocked him out of contention. Id. Dr. Finkel also testified that because Rhinehart had such a low MELD score, he probably would have done very well with a liver transplant. Id.
On October 12, 2011, Dr. Edelman had a telemedicine appointment with Rhinehart. During the appointment, Dr. Edelman rejected Rhineharts request to see an outside liver specialist for evaluation for a liver transplant. He reiterated that based on Rhineharts blood work, his liver health was too good for him to qualify, and Dr. Edelman assured Rhinehart that the prison medical staff could provide his necessary treatment.
Two weeks later, on October 26, 2011, Rhinehart was rushed to Allegiance Hospital after he reported abdominal pain and vomiting large amounts of blood. Dr. Schachinger performed an emergency EGD, discovered four columns of severe esophageal varices that were bleeding, and successfully treated them with ligation banding. At his deposition, Dr. Schachinger testified that if Rhineharts varices had been monitored after the first banding procedure in June 2010, and if additional banding had occurred, it was possible that this bleed could have been prevented. Dr. Finkel agreed. In his deposition, he opined that the likelihood of Rhineharts esophagus bleeding in October 2011 would have been reduced or eliminated entirely if Dr. Schachingers recommendation for follow-up gastroenterologist appointments in June 2010 were followed. R.263-14, Finkel, Dep., Page ID# 5441.
After treating Rhinehart in October 2011, Dr. Schachinger laid out a recommended plan of care in his post-procedure report. One of his recommendations was that Rhineharts prison doctors transfer him to a tertiary care institution to undergo a transjugular intrahepatic portosystemic shunt (TIPS) procedure, which is used to decompress the pressure in the portal vein to decrease the risk of esophageal bleeding. R.259-2, Endoscopy Report, Page ID# 4713. He recommended that the transfer should occur if [Rhinehart] has additional bleeding because more banding would not be an option. Id. He summarized Rhineharts condition: The patients prognosis is quite poor and guarded at this time and there is a fair chance that this is going to bleed again and he may bleed to death and I recommend that he be transferred. Id.
In his deposition, Dr. Schachinger testified that he recommended that Rhineharts healthcare providers consider a TIPS procedure because it was medically ... the right move, as Rhinehart had severe varices, which had bled, and a TIPS has been shown to decrease his risk of bleeding. R.263-13, Schachinger Dep., Page ID# 5403. He opined that this procedure would have stopped esophageal bleeding. Id. But he also recognized that there are serious risks in performing a TIPS, including a chance of the patient developing brain disease. Id. at Page ID# 5407.
Dr. Finkel testified that a TIPS is the gold standard of treatment for patients with esophageal varices. R.263-14, Finkel Dep., Page ID# 5435. He opined that a TIPS is a minimally invasive procedure, that a patient with Rhineharts MELD score would have a 100 percent chance of survival following [a] TIPS for the first year, and that Rhinehart had the potential of living for another five years without a liver transplant had he received the TIPS. Id. at Page ID# 5440. Dr. Finkel recognized a risk of hepatic encephalopathy-a form of brain disease-from a TIPS procedure but estimated Rhineharts risk at less than 20 percent. Id.
The day after Rhineharts esophageal banding, a hospitalist, Dr. Mohmmed Al-Shihabi, contacted Dr. Edelman and Dr. Stieve about the possibility of transferring Rhinehart to a tertiary center for an evaluation and possible TIPS procedure. R.259-2, Progress Note, Page ID# 4715-16. In his report, Dr. Al-Shihabi wrote that Dr. Edelman denied this transfer and he said that we just need to continue monitoring the patient here, even though Dr. Schachinger said that if the patient bleeds he cannot do to [sic] anything and the patient will be unstable to be transferred or do anything and the patient will definitely die. Id. at 4715. Dr. Al-Shihabi noted that Dr. Stieve also denied the transfer. Id.
In his deposition, Dr. Edelman testified that he had denied the transfer because [he] talked to Dr. Stieve about it. R.263-2, Edelman Dep., Page ID# 5001. Indeed, in an internal administrative progress note, Dr. Stieve explained that he and Dr. Edelman discussed the merits of transferring Rhinehart for a TIPS evaluation. R.259-1, Progress Note, Page ID# 4689. According to Dr. Stieves note, the doctors recognized that a TIPS could reduce a hypothetical risk of re-bleed but that the procedure would not prolong Rhineharts life and came with an increased risk of brain disease. Id.
During his deposition, Dr. Stieve discussed his familiarity with the medical issues involved in the decision. He testified that he dealt daily with patients who had esophageal varices and that [e]sophageal varices banding was a very common thing for me to be involved with[.] R.340-1, Stieve Dep., Page ID# 8589. He likewise testified that he had been involved with approving other TIPS procedures for other inmates, but considered those inmates to have different circumstances because [t]hey were being released so that they could get a liver transplant. Id. at Page ID# 8590, 8589 (I would often evaluate inmates to see whether they were a candidate for a TIPS procedure). And although he conceded that he was not a gastroenterologist, radiologist, or hepatologist, he could explain how TIPS and banding procedures were performed and what they entailed. Id. at Page ID# 8589-90.
Dr. Stieve testified that he and Dr. Edelman disapproved transferring Rhinehart for evaluation for a TIPS because he was stable, hadnt rebled, and we had a treatment plan that we thought would be effective in controlling further bleeds, that giving nonspecific beta-blocker therapy and 24 hour health care surveillance, which is available in all of our prisons. Id. at Page ID# 8613. He emphasized that Dr. Schachinger recommended that the transfer occur if he has additional bleeding, and I have no evidence that after he performed the banding there was any additional bleeding. Id. at Page ID# 8608, 8612. And he testified that he and Dr. Edelman agreed that [i]f the patient had needed the TIPS procedure, we would have agreed on it and approved it but neither one of us thought that [a TIPS] was an appropriate procedure at that particular clinical junction. Id. at Page ID# 8590.
In February 2012, a few months after denying the request for a TIPS-procedure consult, Dr. Edelman left Corizon. Almost a year later, in January 2013, Rhinehart slipped and fell on a wet surface and broke his hip. Rhinehart agreed to undergo surgery to repair the injury, but unfortunately, he did not survive the recovery. He died of a morphine overdose in February 2013 because his liver could not metabolize the morphine used to control his pain. He suffered no esophageal bleed between October 2011 and his death.
II.
This action began on March 29, 2011, when Rhinehart filed a pro se lawsuit alleging that his medical providers were ignoring his pain, fear of cancer, and his desire to receive a liver transplant. The district court denied his emergency injunctive motions, and this court affirmed. See Rhinehart , 509 F. Appx at 516. Soon after, Rhinehart passed away, and his brothers (as joint personal representatives of his estate) then filed an amended complaint.
The Defendant Doctors moved for summary judgment on the Rhineharts claims of deliberate indifference to Rhineharts serious medical needs. The magistrate judge issued a Report and Recommendation to deny summary judgment, and the district court adopted the Report and Recommendation in full.
About a year later, with the case going on to trial, the Defendant Doctors raised a Daubert challenge against Dr. Finkel. They objected to Dr. Finkels testifying about Rhineharts alleged fear of cancer and pain and suffering from not being evaluated for a TIPS procedure. The district court granted the motion in part. It decided that Dr. Finkel could testify consistent with his expertise, about Rhineharts fears because any emotional or physical harm he suffered as a result of their indifference is relevant to the damages Plaintiffs seek. But the court precluded testimony on whether Rhinehart suffered physical pain due merely to hypertension because [n]one of the materials before the Court ... assures the Court that [Dr.] Finkels opinion [on that topic] is based upon sufficient facts and reliable methods. The district court ordered the Rhineharts to give one days notice before calling Finkel to testify so that the court could hold a short hearing on precisely what Finkel intends to offer and to make any necessary rulings that will curb impermissible testimony.
While the Daubert motion was still pending, the Defendant Doctors filed their second motion for summary judgment. They argued that this courts decision in Mattox v. Edelman clarified the requirements for establishing a deliberate-indifference claim based on a medical need that has been diagnosed by a physician as mandating treatment. 851 F.3d 583, 598 (6th Cir. 2017). They also relied on the de bene esse trial depositions of Dr. Stieve and Dr. Kosierowski. After the district court ruled on the Defendant Doctors Daubert motion, it granted summary judgment in their favor. Rhinehart v. Scutt , 2017 WL 3913333, at *1 (E.D. Mich. Sept. 7, 2017).
The district court held that because the Rhineharts case was based on the treatments Rhinehart did and did not receive for his ESLD, they had to show that Rhineharts needs were diagnosed by physicians as mandating treatment and that Defendants failed to treat him or so inadequately treated him that he suffered a verified medical injury. Id. at *2. The court determined that at all relevant times Rhinehart received some treatment for his ESLD. Id. at *4-10. It rejected the Rhineharts claims against Dr. Stevenson because they presented no verified medical evidence that Rhinehart suffered a harm because of Dr. Stevensons alleged failings. Id. at *3-7. Similarly, the court determined that the Rhineharts failed to introduce verified medical evidence showing harm from either Dr. Edelmans failure to ensure that Rhinehart saw a specialist in early 2010 or his failure to refer him for evaluation for a liver transplant in October 2011. Id. at *7, *10-11. Finally, in addressing Dr. Edelmans denial of a specialists request for Rhinehart to be evaluated for a TIPS procedure, the court determined that this amounted to a mere disagreement among medical professionals and thus did not constitute deliberate indifference to Rhineharts serious medical needs. Id. at *9.
The Rhineharts appealed and challenge the district courts decisions on the Defendant Doctors second motion for summary judgment and Daubert motion.
III.
We review a district courts grant of summary judgment de novo. Richmond v. Huq , 885 F.3d 928, 937 (6th Cir. 2018). Summary judgment is appropriate only when there is no genuine dispute as to any material fact and defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law, this Court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Id. at 251-52, 255, 106 S.Ct. 2505.
Section 1983 provides a federal cause of action against government officials who, while acting under color of state law, deprived the claimant of rights, privileges or immunities secured by the Constitution or laws of the United States. Bennett v. City of Eastpointe , 410 F.3d 810, 817 (6th Cir. 2005) (citing McKnight v. Rees , 88 F.3d 417, 419 (6th Cir. 1996) ). The Rhineharts assert that the Defendant Doctors deprived Rhinehart of his constitutional rights by acting deliberately indifferent to his serious medical needs. The Defendant Doctors do not dispute that they acted under color of state law but deny that they violated Rhineharts constitutional rights.
The Eighth Amendment prohibits the inflict[ion] of cruel and unusual punishments against those convicted of crimes. U.S. Const. amend. VIII. Incarceration is a form of criminal punishment subject to the Eighth Amendments protections. See generally Howard v. Fleming , 191 U.S. 126, 135-36, 24 S.Ct. 49, 48 L.Ed. 121 (1903). There is a paucity of evidence from the Founding era, however, about how the Eighth Amendment was commonly understood to operate in the prison context. Imprisonment was not a typical form of punishment in this country during the eighteenth century. Jails were used primarily to hold for trial people who could not make bail and for debtors who could not pay off their creditors. J. Filter, Prisoners Rights: The Supreme Court and Evolving Standards of Decency 46 (2001); see also M. Mushlin, Rights of Prisoners § 1.2, at 5-6 (5th ed. 2017). Persons who had been convicted of crimes rarely were imprisoned; instead they were fined, whipped, placed in the stockade, banished, or hanged, depending on the seriousness of their offense. Mushlin at 5-6. Because incarceration as a form of criminal punishment was not the norm, the Founding generation did not have much context in which to consider what Eighth Amendment protections, if any, existed for prisoners.
We do know from the Founding era that the primary concern of the drafters of the Eighth Amendment was to proscribe torture[s] and other barbar[ous] methods of punishment. Estelle v. Gamble , 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (alterations in original) (citation omitted). Indeed, when the Supreme Court interpreted the cruel and unusual punishments language for the first time, it remarked that it is safe to affirm that punishments of torture ... and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution. Wilkerson v. State of Utah , 99 U.S. 130, 136, 25 L.Ed. 345 (1878) ; see also ONeil v. State of Vermont , 144 U.S. 323, 339, 12 S.Ct. 693, 36 L.Ed. 450 (1892) (Field, J., dissenting) (describing punishments that the Eighth Amendment prohibited, such as the rack, the thumb-screw, the iron boot, the stretching of limbs, and the like, which are attended with acute pain and suffering). The Supreme Court later interpreted the Eighth Amendments reach to, among other things, protect prisoners from the governments imposition of unnecessary and wanton infliction of pain. Gregg v. Georgia , 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
How do these directives apply in todays prison context and, in particular, to the medical needs of an inmate? In Estelle , the Supreme Court first acknowledged that the Eighth Amendment could be applied to some deprivations that were not specifically part of the sentence but were suffered during imprisonment. Wilson v. Seiter , 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). But because only the unnecessary and wanton infliction of pain implicates the Eighth Amendment, id. (internal quotation marks and citation omitted), a prisoner advancing such a claim must, at a minimum, allege deliberate indifference to his serious medical needs, id. (quoting Estelle , 429 U.S. at 106, 97 S.Ct. 285 ). It is only such indifference that can violate the Eighth Amendment. Id. (internal quotation marks and citation omitted). Thus, allegations of inadvertent failure to provide adequate medical care, id. (quoting Estelle , 429 U.S. at 105, 97 S.Ct. 285 ), or of a negligent ... diagnos[is], id. (alteration in original) (quoting Estelle , 429 U.S. at 106, 97 S.Ct. 285 ), simply fail to establish the requisite culpable state of mind, id.
Why is a requisite culpable state of mind necessary to establish in an Eighth Amendment medical-needs case? It all goes back to the text of the Eighth Amendment. Because the provision of medical care for a prisoner is not explicitly part of the sentence imposed, that cares inadequacy constitutes a cruel and unusual punishment[ ] only if the government actor, at a minimum, knew the care provided or withheld presented a serious risk to the inmate and consciously disregarded that risk. See Wilson , 501 U.S. at 300, 111 S.Ct. 2321 (If the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify.). As a result, [a]n accident, although it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain. Estelle , 429 U.S. at 105, 97 S.Ct. 285. Instead, the government actor must act with deliberate indifference to serious medical needs of prisoners, id. at 104, 97 S.Ct. 285, in order for the alleged inadequacy of care to be considered cruel and unusual punishment[ ].
The government has an obligation to provide medical care for those whom it is punishing by incarceration. Estelle , 429 U.S. at 103, 97 S.Ct. 285. But mere failure to provide adequate medical care to a prisoner will not violate the Eighth Amendment. In those circumstances, a constitutional violation arises only when the doctor exhibits deliberate indifference to a prisoners serious illness or injury, id. at 105, 97 S.Ct. 285 (emphasis added), that can be characterized as obduracy and wantonness rather than inadvertence or error in good faith, Wilson , 501 U.S. at 299, 111 S.Ct. 2321 (quoting Whitley v. Albers , 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) ). To establish a prison officials deliberate indifference to a serious medical need, an inmate must show two components, one objective and the other subjective. Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The plaintiff must show both that the alleged wrongdoing was objectively harmful enough to establish a constitutional violation and that the official acted with a culpable enough state of mind, rising above gross negligence. Id. at 834-35, 114 S.Ct. 1970.
A. Objective Component
The objective component requires a plaintiff to prove that the alleged deprivation of medical care was serious enough to violate the Eighth Amendment. Id. at 834, 114 S.Ct. 1970. Sometimes this inquiry is a simple one. For example, because a serious medical condition carries with it a serious medical need, when prison officials fail to provide treatment for an inmates serious medical condition, the inmate has endured an objectively serious deprivation. See Blackmore v. Kalamazoo Cty. , 390 F.3d 890, 896-899 (6th Cir. 2004) ; see also Leavitt v. Corr. Med. Servs., Inc. , 645 F.3d 484, 500 (1st Cir. 2011) ; Smith v. Carpenter , 316 F.3d 178, 185-86 (2d Cir. 2003). So we have said that when an inmate had a medical need diagnosed by a physician as mandating treatment, the plaintiff can establish the objective component by showing that the prison failed to provide treatment, Blackmore , 390 F.3d at 897 (quoting Gaudreault v. Municipality of Salem , 923 F.2d 203, 208 (1st Cir.1990) ), or that it provided treatment so cursory as to amount to no treatment at all, Dominguez v. Correctional Med. Servs. , 555 F.3d 543, 551 (6th Cir. 2009) (quoting Terrance v. Northville Regl Psychiatric Hosp. , 286 F.3d 834, 843 (6th Cir. 2002) ).
But when an inmate has received on-going treatment for his condition and claims that this treatment was inadequate, the objective component of an Eighth Amendment claim requires a showing of care so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness. See Miller v. Calhoun Cty. , 408 F.3d 803, 819 (6th Cir. 2005) (quoting Waldrop v. Evans , 871 F.2d 1030, 1033 (11th Cir. 1989) ). The plaintiff must present enough evidence for a factfinder to evaluate the adequacy of the treatment provided and the severity of the harm caused by the allegedly inadequate treatment. There must be medical proof that the provided treatment was not an adequate medical treatment of [the inmates] condition or pain. Santiago v. Ringle , 734 F.3d 585, 591 (6th Cir. 2013). This will often require expert medical testimony ... showing the medical necessity for the desired treatment and the inadequacy of the treatments the inmate received. Anthony v. Swanson , 701 F. Appx 460, 464 (6th Cir. 2017) ; see Pearson v. Prison Health Serv. , 850 F.3d 526, 535 (3d Cir. 2017) (explaining that adequacy-of-care claims may require expert testimony to create a genuine dispute that the prisoners medical needs are serious). The plaintiff also must place verifying medical evidence in the record to establish the detrimental effect of the inadequate treatment. Blackmore , 390 F.3d at 898 (quoting Napier v. Madison Cty., Ky. , 238 F.3d 739, 742 (6th Cir. 2001) ); cf. Broyles v. Corr. Med. Servs., Inc. , 478 F. Appx 971, 975 (6th Cir. 2012) (holding that defendant had met this requirement at the motion-to-dismiss stage by alleging statements by [doctors] linking the delay in treatment to the permanency of his vision impairment).
B. Subjective Component
In addition to showing a sufficient harm, a plaintiff must show that the defendants acted with deliberate indifference. We address this subjective component individually for each defendant. Garretson v. City of Madison Heights , 407 F.3d 789, 797 (6th Cir. 2005).
A doctors errors in medical judgment or other negligent behavior do not suffice to establish deliberate indifference. See Estelle , 429 U.S. at 107-08, 97 S.Ct. 285. Instead, the plaintiff must show that each defendant acted with a mental state equivalent to criminal recklessness. Santiago , 734 F.3d at 591 (citing Farmer , 511 U.S. at 834, 839-40, 114 S.Ct. 1970 ). This showing requires proof that each defendant subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk by failing to take reasonable measures to abate it. Comstock v. McCrary , 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer , 511 U.S. at 837, 114 S.Ct. 1970 ).
A plaintiff may rely on circumstantial evidence to prove subjective recklessness: A jury is entitled to conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Farmer , 511 U.S. at 842, 114 S.Ct. 1970. And if a risk is well-documented and circumstances suggest that the official has been exposed to information so that he must have known of the risk, the evidence is sufficient for a jury to find that the official had knowledge. Id. at 842-43, 114 S.Ct. 1970.
But the plaintiff also must present enough evidence from which a jury could conclude that each defendant so recklessly ignored the risk that he was deliberately indifferent to it. Cairelli v. Vakilian , 80 F. Appx 979, 983 (6th Cir. 2003) ; see Rouster v. Cty. of Saginaw , 749 F.3d 437, 447 (6th Cir. 2014). A doctor is not liable under the Eighth Amendment if he or she provides reasonable treatment, even if the outcome of the treatment is insufficient or even harmful. See Farmer , 511 U.S. at 844, 114 S.Ct. 1970. A doctor, after all, is bound by the Hippocratic Oath, not applicable to the jailor, and the physicians job is to treat illness, not punish the prisoner. Accordingly, when a claimant challenges the adequacy of an inmates treatment, this Court is deferential to the judgments of medical professionals. Richmond , 885 F.3d at 940. That is not to say that a doctor is immune from a deliberate-indifference claim simply because he provided some treatment for the inmates medical needs. Id. But there is a high bar that a plaintiff must clear to prove an Eighth Amendment medical-needs claim: The doctor must have consciously expos[ed] the patient to an excessive risk of serious harm. Id. (emphases added) (citation and internal quotation marks omitted).
IV.
The Rhineharts claims are based on Rhineharts ESLD diagnosis. The Defendant Doctors do not dispute that Rhinehart had ESLD or that his condition required medical care. But they argue that he received constitutionally adequate medical treatment and that they did not possess the mental state necessary for Eighth Amendment liability. We address the Rhineharts claims against Dr. Stevenson and Dr. Edelman below.
A. Dr. Stevenson
Dr. Stevenson was a general internist doctor at Cotton and the senior doctor on staff. The Rhineharts presented evidence that he was Rhineharts assigned doctor and that he was responsible for examining Rhinehart and developing his treatment plan. His involvement in Rhineharts medical care occurred between late 2009 and August 2010.
The Rhineharts argue that while Rhinehart was assigned as one of Dr. Stevensons patients the treatment he received was so cursory as to amount to no treatment at all. See, e.g. , Appellants Br. at 21, 22. The district court disagreed with this characterization of Rhineharts care and found that he received treatment for his ESLD at all relevant times. See Rhinehart , 2017 WL 3913333, at *4-10. We agree with the district court; this is not a case involving cursory treatment amounting to no treatment at all.
Rhineharts long prison medical file shows that his Cotton medical providers monitored and treated his ESLD and its symptoms, including esophageal varices and ascites. He had regular appointments with medical providers who examined him, noted his liver disease, and evaluated his symptoms. He underwent lab tests, ultrasounds, MRIs, and CT scans. His prison doctors prescribed him medication for his pain, and when he reported increased pain, his doctors prescribed stronger medication. When his condition worsened, his medical providers sent him to the hospital, where he received specialist treatment, including EGD scoping and ligation banding for his esophageal varices and paracentesis for his ascites (a process for draining accumulated fluid from the abdomen). And after his varices were discovered, he was prescribed beta blockers to reduce his blood pressure, a recognized first-level treatment for that condition. No reasonable jury could find that Rhineharts ESLD treatment amounted to no treatment at all with respect to when Dr. Stevenson was involved in Rhineharts care. See, e.g. , Dominguez , 555 F.3d at 550-51 (finding that inmates care amounted to no treatment at all when inmate presented with severe heat exhaustion and vomited during examination, but nurse provided only cursory examination and returned him to his non-air-conditioned cube with instructions to drink water and take aspirin).
Thus, the Rhineharts claim against Dr. Stevenson is properly considered an adequacy-of-care claim. To go on to trial, they must show that there is a genuine issue of fact over the adequacy of the care Rhinehart received and that he suffered a verified medical injury because of the inadequate treatment. See Santiago , 734 F.3d at 591 ; Blackmore , 390 F.3d at 897-98.
In assessing the Rhineharts claims, we must keep in mind the distinction between cases where the complaint alleges a complete denial of medical care and those cases where the claim is that a prisoner received inadequate medical treatment. Alspaugh v. McConnell , 643 F.3d 162, 169 (6th Cir. 2011) (quoting Westlake v. Lucas , 537 F.2d 857, 860 n. 5 (6th Cir. 1976) ). An inmates disagreement with the testing and treatment he has received ... does not rise to the level of an Eighth Amendment violation. Dodson v. Wilkinson , 304 F. Appx 434, 440 (6th Cir. 2008) (citing Estelle , 429 U.S. at 107, 97 S.Ct. 285 ). Nor does a desire for additional or different treatment ... suffice to support an Eighth Amendment claim. Anthony , 701 F. Appx at 464. The Rhineharts must present evidence from which a reasonable jury could find that Rhineharts care was so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness. See Miller , 408 F.3d at 819 (quoting Waldrop , 871 F.2d at 1033 ).
The Rhineharts allege that Dr. Stevenson deprived Rhinehart of adequate treatment at two distinct times: (1) before his hospitalization in June 2010, when Dr. Stevenson failed to refer Rhinehart for prompt and consistent specialist care; and (2) in July and August 2010, when, after his hospitalization, a specialist recommended that Rhinehart be prescribed beta blockers and further EGD scoping and ligation banding as needed, but he instead received beta blockers and general internist monitoring and care.
i. Pre-Hospitalization
Before his hospitalization in June 2010, prison medical providers monitored Rhinehart. And when he complained of increased discomfort, he was sent to the hospital, where he received specialist treatment. The Rhineharts argue, however, that this monitoring and as-needed specialist treatment was inadequate. To go on to trial on their Eighth Amendment claim, they needed to present medical proof from which a jury could find that their proposed treatment plan-prompt and regular specialist monitoring-was necessary. See Anthony , 701 F. Appx at 464 (Anthony claims that he was denied a specific type of treatment-a colostomy. Consequently, Anthony must present a medical expert who can speak to the necessity of such a treatment and evaluate it vis-à-vis the treatment he received. Because Anthony has not come forward with such medical testimony, his claim cannot succeed as a matter of law.); Santiago , 734 F.3d at 591 (affirming summary judgment in favor of prison medical providers because inmates claim was based on the delay in receiving a specific type of medical treatment and he failed to show that treatment he received was inadequate).
The Rhineharts point to no medical proof that Rhinehart, or ESLD patients like him, require regular specialist monitoring and care. Their expert did not so testify, and they point to no medical articles showing that this desired treatment plan was necessary. Lacking that evidence, they argue that a jury could find that specialist treatment was necessary based on Dr. Berhanes 2009 request for Rhinehart to be transferred to another prison on an expedited basis coupled with her 407 request that Rhinehart be referred to a specialist for a liver biopsy. But neither the context of Rhineharts transfer nor Dr. Berhanes specialist consultation request advances the Rhineharts argument that Rhinehart needed prompt and regular specialist treatment for his ESLD.
Dr. Berhanes requests were based on a suspicious tumor, not a need for ESLD treatment. The record shows that in September 2009, after Rhinehart underwent a CT scan that revealed a high suspicion for cancer, Dr. Berhane contacted Dr. Edelman, discussed Rhineharts medical needs, and submitted a formal consultation request. Dr. Berhane recommended that Rhinehart be approved to see an oncologist or hepatologist for a tissue biopsy of his liver. R.263-9, Consultation Request, Page ID# 5193-94. The 407 form that Dr. Berhane submitted provides: Request consult for tissue biopsy of these highly suspicious findings for a ... tumor. Id. at 5193. Of course, Rhinehart never had cancer, and the Rhineharts Eighth Amendment claim is not based on harm caused by this tumor. Yet the Rhineharts argue that this request for a prompt specialist referral and biopsy would allow a jury to find that Rhinehart needed to see a specialist for his ESLD. But Dr. Berhanes request that Rhinehart see a specialist to evaluate his potential cancer says nothing about a need for ESLD treatment. The 407 listed ESLD under Presumed Diagnosis but never mentioned any need for Rhinehart to see a specialist for treatment for his ESLD. Id. In sum, Dr. Berhanes requests do not support the Rhineharts claim that prompt and regular specialist treatment was necessary.
Without evidence that Rhineharts ESLD required regular specialist monitoring, the Rhineharts argue that Rhineharts ESLD included a high probability of his developing esophageal varices and that this condition can be discovered by EGD scoping, which can be done by only a specialist. Thus, they argue, Rhinehart required prompt and regular specialist care to monitor for esophageal varices, and because he did not receive it, a jury could find that his treatment was inadequate.
But the fact that esophageal varices can be diagnosed by EGD scoping does not establish that specialist monitoring and EGD scoping were medical necessit[ies] when Rhinehart was transferred to Cotton. Anthony , 701 F. Appx at 464. For starters, the Rhineharts medical literature explains that these treatments constitute only one method for discovering varices, along with x-rays and lab tests. R. 315-3, Medical Lit., Page ID# 7803. Rhinehart saw his prison doctors regularly and underwent several lab tests. And when Rhinehart complained of increasing discomfort in June 2010, his prison medical providers transferred him to the hospital, where his esophageal varices were discovered during an EGD scoping procedure. Allegations that more should have been done by way of diagnosis and treatment and suggest[ions] of other options that were not pursued raise at most a claim of medical malpractice, not a cognizable Eighth Amendment claim. Estelle , 429 U.S. at 107, 97 S.Ct. 285.
The Rhineharts medical literature says nothing about when, how often, or even if an ESLD patient should see a specialist before he is diagnosed with esophageal varices. And they presented no expert medical testimony on this. The Rhineharts have thus shown only a desire for a more aggressive treatment, and they have failed to introduce the requisite evidence for a jury to find that this treatment was necessary. See Anthony , 701 F. Appx at 464 (requiring a plaintiff to show the need for a more aggressive treatment than the one he received).
ii. Post-Hospitalization
When Rhinehart was in the hospital in June 2010, Dr. Schachinger performed an EGD scope, which revealed four columns of esophageal varices with no active bleeding, and he successfully placed seven esophageal bands to obliterate the varices. In his post-procedure report, he recommended that Rhinehart continue taking Propranolol (a beta-blocker medication that reduces blood pressure) and followup [sic] as an outpatient with the prison gastroenterologist for additional EGD with esophageal banding as necessary. R.177, Endoscopy Report, Page ID# 2421.
When Rhinehart was discharged from the hospital, his discharge instructions included an order for blood work that morning and [p]rimary care provider followup [sic] within one week. R.259-2, Discharge Instructions, Page ID# 4706. In accord with these instructions, Dr. Cohen examined Rhinehart at the prison the day after his discharge. Dr. Cohen reviewed Rhineharts hospital records, ordered blood work, and started Rhinehart on Propranolol to reduce his blood pressure and prevent esophageal bleeding. Rhinehart was not referred for follow-up appointments with a gastroenterologist. Instead, Dr. Cohen monitored him, examining him on July 8 and July 19. Dr. Stevensons employment with Corizon ended the next month, August 2010.
Given Dr. Schachingers recommendation, the Rhineharts argue that before Dr. Stevensons departure he provided Rhinehart with inadequate care because he failed to refer Rhinehart to a specialist for further EGD scoping and ligation banding. They contend that specialist monitoring and EGD scoping were the only appropriate treatments and assert that because Dr. Stevenson did not order these, Rhinehart endured an esophageal bleed fourteen months later.
The Rhineharts medical literature shows that, once discovered, the first level treatment for esophageal varices is either use of medications such as beta blockers or EGD scoping and ligation banding performed by a specialist, or a combination of the two. In his post-procedure report, Rhineharts hospital doctor, Dr. Schachinger, recommended both. Dr. Schachinger later testified that the risk of Rhineharts bleeding from his varices was higher because of the size of the varices and that if he had a patient with Rhineharts conditions under his exclusive control, he probably would have reevaluated Rhineharts varices a month later and treated them if necessary. R.263-13, Schachinger Dep., Page ID# 5399-400. During his deposition, Dr. Finkel testified that he agreed with Dr. Schachinger. He explained that in the weeks and months after his hospitalization, [i]n the private world setting, Dr. Schachinger would have recalled the patient in a timely fashion for a repeat [EGD] and banding session. R.263-14, Finkel Dep., Page ID# 5442.
A prison doctors failure to follow an outside specialists recommendation does not necessarily establish inadequate care. For example, in Santiago v. Ringle , 734 F.3d 585, 591 (6th Cir. 2013), we held that even though an inmate showed that he had a serious skin condition and that his prison doctors failed to prescribe him the treatment that a specialist had recommended, he could not proceed past summary judgment on his deliberate-indifference claim because his prison doctors prescribed an alternative treatment, and he produced no medical proof showing that the medications that his prison doctors prescribed were inadequate. 734 F.3d at 591. The same was true here. Though Dr. Cohen did not follow all of Dr. Schachingers recommendations, she examined Rhinehart and prescribed a recognized medication for his esophageal varices, beta-blocker medication. As in Santiago , the Rhineharts had the burden of introducing medical proof that this was inadequate treatment.
We need not decide whether Dr. Schachingers and Dr. Finkels respective testimony about what they would have done is enough to create a fact dispute about the adequacy of Rhineharts care. Even if it were, and assuming that the Rhineharts evidence would allow a jury to find that he suffered a detrimental effect from the treatment he received, the Rhineharts claim would still fail because they cannot establish the subjective component of their claim against Dr. Stevenson.
As noted above, the subjective component of a deliberate-indifference claim must be addressed for each officer individually. Garretson , 407 F.3d at 797 ; see Gibson v. Matthews , 926 F.2d 532, 535 (6th Cir. 1991). The record shows that Dr. Cohen was the doctor who received, interpreted, and acted on Dr. Schachingers recommendation. R.259-1, Medical Record, Page ID# 4663-65. She determined and implemented Rhineharts treatment plan after his hospitalization, examining him three times in July and prescribing medication for his esophageal varices. The Rhineharts presented no evidence that Dr. Stevenson examined Rhinehart after his return from the hospital, or that he reviewed Dr. Schachingers postprocedure report. They have failed to put forward evidence suggesting that Dr. Stevenson had any knowledge of Dr. Schachingers recommendation that Rhinehart be referred for follow-up appointments with a gastroenterologist. In other words, the Rhineharts can point to nothing showing that Dr. Stevenson subjectively perceived facts from which to infer substantial risk to [Rhinehart]-that without follow-up specialist appointments Rhinehart was at a high risk of suffering an esophageal bleed. Comstock , 273 F.3d at 703 (citing Farmer , 511 U.S. at 837, 114 S.Ct. 1970 ).
Even if the Rhineharts could show that Dr. Stevenson knew about Dr. Schachingers recommendation, they failed to show that the treatment Rhinehart received amounted to a conscious disregard of the risk that Rhinehart faced. Id. When a doctor orders treatment consistent with the symptoms presented and then continues to monitor the patients condition, an inference of deliberate indifference is unwarranted. Self v. Crum , 439 F.3d 1227, 1232-33 (10th Cir. 2006). Rhinehart received the plan of care directed in his discharge instructions. He was seen by Dr. Cohen the day after his discharge. She specifically referenced and implemented Dr. Schachingers recommendation that Rhinehart be prescribed a beta-blocker medication to prevent esophageal bleeding. And the Rhineharts medical literature confirms that prescribing this medication is a recognized treatment for reducing the recurrence of esophageal varices. R.315-3, Medical Lit., Page ID# 7802-07. The Defendant Doctors expert, Dr. Duffy, also stated in his expert report that this treatment plan was appropriate. R.258-9, Expert Report, Page ID# 4545-47. After implementing this plan, Dr. Cohen continued to monitor Rhinehart, seeing him several times in July 2010. This treatment plan shows no disregard for Rhineharts health risks.
Nor does Dr. Schachingers recommendation support an inference of deliberate indifference. Dr. Schachingers recommendation for follow-up specialist care was not a prescribed treatment plan. See Richmond , 885 F.3d at 940 (distinguishing between an inmates claim based on a fail[ure] to provide the care that was ordered and one based on the adequacy of an inmates treatment); cf. Boretti v. Wiscomb , 930 F.2d 1150, 1154 (6th Cir. 1991) (reversing district courts grant of summary judgment for prison nurse who interrupted prescribed plan of treatment for inmate who had recently had surgery for gunshot wound ). Though we have held that a prison doctor may not escape liability simply because the treatment was recommended rather than prescribed, Santiago , 734 F.3d at 590, this is not a case in which a prison doctor ignored a specialists recommendations. See, e.g. , Verser v. Elyea , 113 F.Supp.2d 1211, 1215 (N.D. Ill. 2000) (allowing deliberate-indifference claim to proceed where doctor declined to follow the recommendations of [a] specialist ... without even examining the patient). Instead, Dr. Cohen, who was Rhineharts treating doctor, reviewed Rhineharts hospital record, examined him, and implemented a recognized course of treatment. Then, she continued to monitor him. Implementing this plan instead of that recommended by Dr. Schachinger did not amount to a conscious disregard for Rhineharts condition. See Farmer , 511 U.S. at 844, 114 S.Ct. 1970 ; cf. Blank v. Bell , 634 F. Appx 445, 449 (5th Cir.), cert. denied , --- U.S. ----, 136 S.Ct. 2036, 195 L.Ed.2d 236 (2016) (holding that prison medical providers failure to refer inmate with Crohns disease to a specialist did not amount to deliberate indifference despite discharge instructions recommending such a referral because the inmate was seen by his prison doctor who prescribed medications indicated on inmates discharge instructions and the referral decision remained with prison doctor); Heidtke v. Corr. Corp. of Am. , 489 F. Appx 275, 281 (10th Cir. 2012) (holding that prison doctor was not deliberately indifferent to inmates serious medical needs for failing to follow discharge instructions directing that inmate be returned to hospital if some symptoms were observed because prison doctor examined inmate on three occasions, ordered x-rays, prescribed medication, and monitored inmates condition).
The Rhineharts reliance on Dr. Schachingers and Dr. Finkels respective testimony about what would have happened were Rhinehart a private patient of Dr. Schachingers at most raises a simple question of whether [Rhineharts prison doctors] made the right medical judgment in treating him. LeMarbe v. Wisneski , 266 F.3d 429, 439 (6th Cir. 2001). A disagreement with a course of medical treatment does not rise to the level of a federal constitutional claim under the Eighth Amendment. Alspaugh , 643 F.3d at 169. Indeed, as the Supreme Court has instructed, forms of treatment are generally a classic example of a matter for medical judgment that does not represent cruel and unusual punishment.
Estelle , 429 U.S. at 107, 97 S.Ct. 285 ; see also Richmond , 885 F.3d at 941 (holding that it would be improper for this court to overturn [a doctor]s medical judgment).
The Rhineharts argue that Dr. Stevensons failure amounts to more than a disagreement among doctors. They claim that every general physician knows that ESLD requires specialist treatment and so a jury could find that Dr. Stevenson knew that Rhinehart needed specialist care but failed to ensure that he received it. Reply Br. at 20-21. They rely on our decision in LeMarbe v. Wisneski , 266 F.3d 429, 439 (6th Cir. 2001).
In LeMarbe , we allowed a deliberate-indifference claim to survive summary judgment in part because of a doctors failure to refer an inmate to a specialist. During an exploratory surgery, the doctor encountered five liters of bile in the inmates abdomen. Id. at 432-33. After failing to locate and repair the source of the leak, the doctor drained the bile from the inmates abdomen, and though he was concerned about the fluid collecting again, he closed the incision. Id. at 433. After the surgery, the doctor monitored the inmate himself and did not refer him to a specialist. Id. The bile again pooled in the inmates abdomen and caused serious injuries. Id. at 433-34. The inmate sued, alleging that the doctor was deliberately indifferent to his serious medical needs when, after surgery, he failed promptly to refer him to a specialist. Id. at 438. In holding that the plaintiffs claim raised more than just a question of whether the operating doctor made the right medical judgment in sealing the incision and monitoring the inmate, we emphasized that the inmate presented evidence that any general surgeon in the operating doctors position would know that if he could not locate the bile, then he had to refer the patient to someone with the training and experience to find and fix the bile leak. Id. (emphasis added).
LeMarbe does not control this case. There, the need for specialist treatment was obvious because the operating doctor knew that the patients abdomen was leaking, and he knew that he could not fix it. Certainly, a jury is entitled to find reckless a doctor who fails to act in such a situation. But a doctors observing a serious medical problem, failing to locate its cause, and refusing to take further action is quite different from the situation here, where Dr. Cohen treated her patient with a recognized medication. In short, the Rhineharts have failed to enter evidence from which a jury could find that it would have been obvious to any treating physician that Rhinehart needed to see a gastroenterologist after surgery rather than receive beta blockers and general internist monitoring to control his esophageal varices.
Because a reasonable jury could not find that the Rhineharts established the objective and subjective components of the their deliberate-indifference claim against Dr. Stevenson, the district court properly granted summary judgment in his favor.
B. Dr. Edelman
Dr. Edelman was the medical director for Utilization Management at Corizon. In that position, he was an administrative, non-treating doctor who approved or denied specialist medical referrals that treating doctors sought for their patients. The Rhineharts allege that Dr. Edelman showed deliberate indifference to Rhineharts serious medical needs at three distinct times: (1) after he approved a specialist consultation for Rhinehart but failed to ensure that Rhinehart was promptly referred for specialist care, (2) in October 2011 when he denied Rhineharts request to see a specialist for evaluation for a liver transplant, and (3) in October 2011 when he denied a specialists recommendation that Rhinehart be referred for an evaluation for a TIPS procedure. The Rhineharts first allegation, like that against Dr. Stevenson, fails because the Rhineharts have not introduced evidence that would allow a reasonable jury to find that Rhineharts ESLD required a prompt specialist referral. Because the Rhineharts two remaining grievances against Dr. Edelman raise different issues, we address those in more detail below.
i. Denial of Rhineharts Request for Consideration for a Liver Transplant
On October 12, 2011, Dr. Edelman saw Rhinehart through telemedicine. R.263-9, Clinical Progress Note, Page ID# 5285. Dr. Edelmans notes explain that during their appointment, Rhinehart asked to be referred for evaluation for a liver transplant, and Dr. Edelman responded that his liver health is such that he would not be anywhere near qualifying for one, but assured him that [his prison doctors] are completely capable of providing treatment for his current issues. Id. The Rhineharts argue that denying Rhineharts request for a liver transplant evaluation amounted to inadequate care.
To show that such a referral was medically necessary, they point to three pieces of medical proof: (1) medical literature that explains that patients with ESLD have a high risk of death and that liver transplantation is the only curative treatment, (2) Dr. Schachingers testimony that after the June 2010 banding procedure he probably would have referred Rhinehart to a tertiary center that performs a liver transplant to determine if that might be necessary, and (3) Dr. Finkels testimony that he agreed with Dr. Schachingers opinion that he would have referred Rhinehart for evaluation for a liver transplant, that Rhinehart would have been a candidate for one, and that he probably would have done very well with a liver transplant.
Despite this evidence, the district court determined that the Rhineharts failed to introduce verified medical evidence that Rhinehart was harmed by [Dr.] Edelmans failure to have him considered for a liver transplant. Rhinehart , 2017 WL 3913333, at *11 (E.D. Mich. Sept. 7, 2017). In reaching that conclusion, the court relied on this courts decision in Anthony v. Swanson , 701 F. Appx 460 (6th Cir. 2017), where we held that a deliberate-indifference claim based on a desire for additional or different treatment will typically require evidence, likely expert medical testimony, showing the medical necessity for such a treatment. Id. at 464.
The facts in Anthony are close to those here. An inmate was diagnosed with severe radiation poisoning in his rectum. Id. at 461. A doctor outside the prison tried to treat his condition with a steroid cream, but when the cream did not work, the doctor recommended a colostomy surgery-a surgical procedure in which portions of the bowel are removed and the remaining bowel system is diverted to a pouch allowing stool to exit outside the body. Id. The inmate told his prison doctor about the outside doctors recommendation, but the prison doctor denied the surgery and instead prescribed anti-reflux medication, pain pills, and a steroid cream. Id. This court affirmed a grant of summary judgment for the prison doctor on the inmates claim that she exhibited deliberate indifference to the inmates serious medical needs by declining to schedule the recommended colostomy surgery. Id. at 464. The court instructed that a plaintiff with a complex diagnosis ... [must] provide expert testimony as to the proper treatment so that a fact-finder can determine that the inmates symptoms would have been alleviated by the desired treatment and that the inmates condition required that treatment. Id.
In Anthony , the inmate failed to present medical testimony showing that the colostomy would have alleviated his symptoms or that the pills and cream that he received were an inadequate treatment for his condition. Id. ; see also Blosser v. Gilbert , 422 F. Appx 453, 461 (6th Cir. 2011) (holding that arrestee, who alleged that his prison doctor failed to treat adequately his torn biceps tendon, could not prevail on his deliberate-indifference claim based on the doctors failure promptly to send him to a specialist because he provided no medical evidence that he would have received surgery, was a candidate for surgery, or was harmed by the prisons delay in scheduling a specialist appointment). Unlike the inmate in Anthony , the Rhineharts presented some medical evidence and expert medical testimony in support of their claim against Dr. Edelman.
They presented some proof that a new liver would have alleviated Rhineharts ESLD. Their medical literature explains that a liver transplant is the only cure for ESLD. Also, Dr. Finkel opined that Rhinehart probably would have done very well with a liver transplant, because he had a low MELD score. R.263-14, Finkel Dep., Page ID# 5442. This is enough for a jury to find that if Rhinehart had received a new liver, it likely would have alleviated his symptoms.
But because of the nature of liver transplants (i.e., that a surgery can be completed only if a liver is available), to prove that a referral for consideration for a liver transplant was medically necessary, the Rhineharts had to show more than a likelihood that a new liver would have cured Rhineharts ESLD. They also had to present enough evidence for a jury to find that Rhinehart likely would have received a new liver. Cf. Heck v. Humphrey , 512 U.S. 477, 483, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (explaining that because § 1983 creates a species of tort liability courts should look to the common law of torts, which defin[e] the elements of damages and the prerequisites for their recovery, including causation (citations omitted) ). Dr. Finkel opined that Rhinehart would have been placed on the list-[m]aybe he would have received a liver, maybe he wouldnt have received a liver, but he would have been a candidate. R.263-14, Finkel Dep., Page ID# 5442. But the district court found this to be insufficient. Rhinehart , 2017 WL 3913333, at *11 (E.D. Mich. Sept. 7, 2017). We agree.
Considering the severe shortage of available livers, testimony that an inmate had some unidentified chance of receiving a new liver is not enough. Rhineharts MELD score of a 7 (on a scale of 6 to 40) counseled against his candidacy for a liver transplant. See Lopes v. Riendeau , 177 F.Supp.3d 634, 659 (D. Mass. 2016) (holding that objective prong of prisoners Eighth Amendment claim not satisfied when claim was based on prison doctors failure to refer inmate for a liver transplant when inmate had a low MELD score of 11). Presented with only Dr. Finkels testimony, no reasonable jury could find by a preponderance of the evidence that a referral for a liver transplant would have alleviated Rhineharts symptoms because it could not find that a referral would have resulted in Rhineharts receiving a new liver.
Even if the Rhineharts had shown that a liver transplant was medically necessary and that Rhinehart suffered harm from Dr. Edelmans failure to send him for the referral, their claim would still fail because they failed to show that Dr. Edelman acted with deliberate indifference to Rhineharts medical needs. The Rhineharts needed to show that Dr. Edelman consciously disregarded a substantial risk to Rhineharts health. But they presented no evidence that when Dr. Edelman declined to refer Rhinehart for a consultation, he knew that Rhinehart would have been a realistic candidate for a new liver. Even if Rhinehart were a realistic candidate for a liver transplant, if Dr. Edelman subjectively believed that Rhinehart were not, then he could not have been deliberately indifferent in denying a consultation referral. A refusal based on incorrect knowledge shows no more than negligence.
The evidence confirms that when Dr. Edelman rejected Rhineharts request, he believed that Rhinehart was not realistically eligible for a liver transplant. At that time, Rhineharts liver condition had been regularly monitored through examinations and testing. And shortly before Rhinehart asked Dr. Edelman to refer him for a liver transplant consultation, he had undergone blood tests. R.259-1, Clinical Progress Note, Page ID# 4677-78. Dr. Edelman was aware of these tests, as he had discussed the results with Rhineharts treating doctor. Id. Dr. Edelman had also discussed Rhineharts case with Dr. Kosierowski, a Corizon oncologist and consultant. They determined that there was no need to send Rhinehart for an evaluation for a liver transplant. R.258-4, Affidavits of Dr. Edelman and Dr. Kosierowski, Page ID# 4500-09. In fact, because Rhinehart filed a lawsuit at that time, Dr. Edelman signed an affidavit explaining his medical opinion that Rhinehart was not a candidate for a liver transplant. Id. at Page ID# 4507-08. Based on Dr. Edelmans understanding of the process for determining which patients may receive a new liver (a process which the Rhineharts do not contest), Rhineharts MELD score placed him near the bottom of the list (7 on a scale ranging from 6 to 40, with a 40 representing the top of the list). Based on this information, Dr. Edelman swore that he believed that Rhinehart was not a candidate for a liver transplant.
Years later, Dr. Finkel disputed Dr. Edelmans opinion about Rhineharts eligibility for a liver transplant. But this does not show that Dr. Edelman knew (when he made the decision) that Rhinehart may have been realistically eligible for a transplant. Though Dr. Finkel opined that Rhinehart had a chance at receiving a liver, he admitted that Rhineharts MELD score of 7 would not have placed him at the top of the list for [a] liver transplant. R.263-14, Finkel Dep., Page ID# 5442. So his opinion does not directly contradict that of Dr. Edelman. More important, however, Dr. Finkels opinion falls short of what a jury would need to infer that Dr. Edelman knew that he was denying Rhinehart a realistic chance at receiving a liver. At most, Dr. Finkels testimony establishes a dispute about whether Rhinehart objectively had a chance of receiving a liver. This is not enough. To infer that Dr. Edelman knew that Rhinehart had a chance at receiving a liver, the Rhineharts would need to put forth evidence showing that any doctor would have known that someone in Rhineharts condition would have been realistically eligible for a liver transplant. Cf. LeMarbe , 266 F.3d at 434 (Dr. Sarnelle explained that any general surgeon would have known, upon discovering five liters of bile in LeMarbes abdomen ... that LeMarbe had to be referred immediately to a specialist who could locate and stop the leak if the surgeon was unable to do so himself.). Without this evidence, no reasonable jury could conclude that Dr. Edelman acted with deliberate indifference to Rhineharts serious medical need when he advised him that he was ineligible for a liver transplant.
ii. Denial of a Specialists Recommendation that Rhinehart be Referred for an Evaluation for a TIPS Procedure
When his esophageal varices bled in October 2011, Rhinehart was admitted to the hospital and Dr. Schachinger performed an emergency banding procedure. After the procedure, Dr. Schachinger wrote a report that recommended a treatment plan. One recommendation was that Rhinehart be transferred to a tertiary care institution to undergo a TIPS procedure to lower the tension in his portal vein and prevent any more bleeding. R.259-2, Endoscopy Report, Page ID# 4713. He advised that the transfer should occur if [Rhinehart] has additional bleeding because more banding would not be an option. Id. He warned that there is a fair chance that this is going to bleed again and he may bleed to death and I recommend that he be transferred. Id.
Dr. Al-Shihabi, the hospitalist who saw Rhinehart at that time, also wrote a report. In it, he reiterated that Dr. Schachinger recommended strongly to transfer [Rhinehart] to a facility where they could do a TIPS procedure to decrease the pressure on the portal vein and decrease the chance of a re-bleed. R.259-2, Progress Report, Page ID# 4715. According to Al-Shihabi, he spoke with Dr. Edelman and Dr. Stieve about transferring Rhinehart. Id. at Page ID# 4715-16. But both doctors denied the transfer. Id. at Page ID# 4715.
The Rhineharts claim that because Rhinehart was denied a referral for consideration for a TIPS procedure, he received inadequate treatment for his ESLD. As with the denial of a referral for a liver-transplant consultation, the Rhineharts claim is that adequate care required a particular treatment. Thus, this courts analysis in Anthony again governs their claim. The Rhineharts must present medical proof that the inmates symptoms would have been alleviated by a TIPS and that the inmates condition required that treatment. Anthony , 701 F. Appx at 464.
The Rhineharts claim fails on the first prong. Dr. Schachingers and Dr. Al-Shihabis respective hospital reports show that a TIPS was recommended to prevent Rhineharts esophagus from re-bleeding. Dr. Schachinger confirmed this in his deposition. R.263-13, Schachinger Dep., Page ID# 5403. When the Rhineharts own expert was asked about the TIPS procedure, he explained that it would lower[ ] the pressure in the esophageal varices and would have substantially reduced the risk of rebleeding. R.263-14, Finkel Dep., Page ID# 5435, 5440. But after Dr. Edelman denied the request for Rhinehart to be evaluated for a TIPS procedure Rhinehart never suffered another re-bleed. Because Rhinehart never again experienced that symptom, the Rhineharts cannot use a TIPSs effectiveness at preventing esophageal bleeding to show that it would have alleviated his symptoms.
So the Rhineharts had to show that a TIPS procedure would have alleviated some other symptom. Recognizing this, they contend that a TIPS would have had other beneficial effects. They mainly assert that a TIPS would have alleviated pain caused by Rhineharts ascites, which he endured until his death. They point to Rhineharts medical records showing that after the denial of a TIPS he continued to experience abdominal pain and distension around his liver area up until his death.
The Rhineharts medical literature provides that the first form of treatment for ascites is reducing the patients salt and alcohol consumption and prescribing oral diuretics (water pills). R. 345-6, Medical Lit., Page ID# 8802, 8807, 8812. If those treatments are insufficient, doctors use paracentesis (a needle inserted into the abdomen) to drain the fluid in the abdomen. Id. at Page ID# 8802, 8808. And if paracentesis does not control fluid accumulation, the doctor may recommend that the patient undergo a TIPS procedure. Id. at Page ID# 8802, 8808, 8812. This might occur where a patient has difficult to treat ascites, has loculated fluid, or is unwilling or unable to receive frequent paracentesis. Id. at Page ID# 8802, 8809. Accordingly, paracentesis is the most widely accepted treatment for patients with severe ascites, and doctors only turn to a TIPS procedure in certain circumstances. Id. at Page ID# 8809. For these appropriately selected patients, a TIPS procedure is considered a highly effective way to treat ascites and mitigate pain. Id. at Page ID# 8809; R.315-3, Medical Lit., Page ID# 7813.
The problem for the Rhineharts is that they have not pointed to any medical evidence showing that Rhinehart fell within the group of ascites patients for which a TIPS procedure was medically necessary. Instead, the record reflects that Rhinehart was prescribed diuretics and underwent paracentesis to treat his ascites. And since the Rhineharts do not contend that Rhinehart had difficult to treat ascites or loculated fluid, that Rhinehart was unwilling or unable to receive frequent paracentesis, or that the diuretics and paracentesis were not working, we cannot conclude that Rhineharts treatment was inadequate.
Moreover, even if the Rhineharts had shown that the diuretics and paracentesis did not effectively alleviate Rhineharts pain, the record shows that Rhinehart received an alternative treatment for his pain-regular monitoring and pain medication. The Rhineharts have presented no medical proof that this was an inadequate treatment plan. See, e.g. , Johnson v. Million , 60 F. Appx 548, 549 (6th Cir. 2003) (holding that inmate with liver disease could not establish deliberate-indifference claim against his prison healthcare providers when inmate was repeatedly examined for his complaints of stomach pain and prescribed medications, ordered blood tests, and advised about his diet). The Rhineharts expert testified that a TIPS procedure is the gold standard of treatment for patients with ESLD. R.263-14, Finkel Dep., Page ID# 5435. But the Eighth Amendment does not require prison medical providers to provide inmates with unqualified access to health care. Hudson v. McMillian , 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). An inmate is entitled to adequate medical care, not the best care possible. See Miller , 408 F.3d at 819 (explaining that the objective prong of an Eighth Amendment claim requires care so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness (citation omitted) ).
But even if the Rhineharts had established that a TIPS procedure was necessary to alleviate Rhineharts pain, and that the pain medication he received was inadequate for doing so, their claim would still fail because no reasonable jury could find that Dr. Edelman acted with deliberate indifference when he denied Dr. Schachingers recommendation to transfer Rhinehart. As the district court explained, whether a jury could find that Dr. Edelman acted with deliberate indifference depends on whether he exercised medical judgment-whether the decision amounted to a disagreement among physicians. See Estelle , 429 U.S. at 107, 97 S.Ct. 285 (holding that a poor exercise of medical judgment would constitute medical malpractice, which would fail to rise to the level of a constitutional violation); Rhinehart , 509 F. Appx at 513 (Neither negligence alone, nor a disagreement over the wisdom or correctness of a medical judgment is sufficient for the purpose of a deliberate indifference claim.). Because the record shows that Dr. Edelman made a medical judgment in declining to refer Rhinehart for a TIPS procedure, the Rhineharts cannot establish the subjective component of their claim against him.
The record reveals that when Dr. Edelman decided against transferring Rhinehart for consideration for a TIPS procedure, he consulted with Dr. Stieve. That Dr. Stieve played a role in Dr. Edelmans decision was important because during his deposition, Dr. Stieve described his familiarity with Rhineharts liver condition and the TIPS procedure. Dr. Stieve testified that [e]sophageal varices banding was a very common thing for him to be involved with and that he would often evaluate inmates to see whether they were a candidate for a TIPS procedure. R.340-1, Stieve Dep., Page ID# 8589. He explained that he had been involved with approving other TIPS procedures for other inmates, and that those inmates had different circumstances like preparing for a liver transplant. Id. at Page ID# 8590.
In an administrative note, Dr. Stieve discussed the reasons for denying Rhineharts referral for a TIPS evaluation. R.259-1, Progress Note, Page ID# 4689. In that note, he explained that he and Dr. Edelman recognized that a TIPS could reduce a hypothetical risk of re-bleed but that the procedure would not prolong Rhineharts life and came with an increased risk of brain disease. Id. In other words, he explained that the doctors refused to transfer Rhinehart for a TIPS consult after weighing the potential health benefits that the procedure could provide against the potential side-effects-a process that required medical judgment.
The Rhineharts dispute that Dr. Stieve had any role in Dr. Edelmans decision. They recycle an argument that they made to the district court that Dr. Stieve only concurred with Dr. Edelmans decision and that Dr. Stieve could not make the decision. As the district court held, however, Dr. Stieves testimony that he concurred with Dr. Edelman that Rhinehart should not be transferred does not mean that he had no input or influence on the decision. Dr. Stieves administrative note shows that he and Dr. Edelman discussed the merits of transferring Rhinehart. And Dr. Stieve testified that he discussed Rhineharts case with Dr. Al-Shihabi and explained why not transferring Rhinehart would be advisable. R.340-1, Stieve Dep., Page ID# 8589. Moreover, Dr. Edelman testified that he had denied the transfer because [he] talked to Dr. Stieve about it. R.263-2, Edelman Dep., Page ID# 5001. Thus, the district court correctly considered Dr. Stieves medical judgment and input in determining whether Dr. Edelman employed medical reasoning in making the decision.
Both the Rhineharts and Judge Moore in her separate opinion also argue that Dr. Edelmans decision was not a medical judgment because it was an illegitimate decision. See Appellants Br. at 25; Reply Br. at 22; Concurring and Dissenting Op. at 760 ([A] rational factfinder could conclude that [Dr.] Edelmans justification for denying Rhinehart a TIPS procedure was mere pretext to mask deliberate indifference.). They contend that given Dr. Schachingers recommendation that Rhinehart be referred for consideration for a TIPS procedure, Dr. Edelman too heavily weighed (or unreasonably considered) the danger of Rhineharts developing brain disease. Their strongest evidence comes from Dr. Finkels testimony. He opined that a TIPS procedure would have increased Rhineharts chance of living from his end-stage liver disease and would have come with a less than 20 percent risk of developing brain disease. R.263-14, Finkel Dep., Page ID# 5440. This testimony questions the correctness of Dr. Edelmans decision. But it does not provide enough evidence for a jury to conclude that Dr. Edelmans decision was not a medical one. We know this because even Dr. Schachinger, the very doctor who suggested that Rhinehart be considered for a TIPS procedure, testified that Dr. Edelmans reasoning was legitimate. During his deposition, he was asked whether, considering his recommendation, there was any legitimate reason for Dr. Edelman to deny Rhinehart a referral for consideration for a TIPS procedure. R.263-13, Schachinger Dep., Page ID# 5407. Dr. Schachinger responded:
A: ... It looks like they were concerned-rightly so-that there are certainly side effects and other co-morbidities that can occur because of the TIPS like [brain disease ].
Id. In other words, the very doctor who recommended that Rhinehart be considered for a TIPS acknowledged that Dr. Edelman was rightly concerned about the risks of side effects from that procedure. Dr. Schachingers testimony is significant not because it shows that Dr. Edelman and Dr. Stieve made the right decision, but because it shows that the medical reasons relied on by Dr. Edelman and Dr. Stieve were legitimate, not pretextual. Thus, Dr. Finkels disagreement with Dr. Edelman and Dr. Stieve at most raises an issue of medical malpractice not deliberate indifference.
Finally, the Rhineharts attack Dr. Edelmans weighing of the risk of brain disease because, as they assert, Rhinehart had already been experiencing symptoms of brain disease before Dr. Edelman denied the referral. They also argue that even if this condition worsened after a TIPS, it could be managed with medication and treatment. R.296-3, Medical Lit., Page ID# 7083-88, 7123-26. But this cannot show that Dr. Edelmans decision involved no medical judgment. First, that Rhinehart had brain disease before Dr. Edelmans decision finds no support in his medical record. The Rhineharts point to no diagnosis of hepatic encephalopathy and instead cite only his having complained about experiencing sporadic mental clouding and confusion. R.259-1, Medical Record, Page ID# 4629, 4640.
And even taking as true that Rhinehart experienced symptoms much like brain disease at some point before Dr. Edelmans decision, this does not render illegitimate Dr. Edelmans having considered the risk of brain disease in making his call on the TIPS referral. The last time Rhinehart had complained of confusion, according to the medical records that the Rhineharts proffer, was March 2010-more than eighteen months before Dr. Edelman made his decision. So Dr. Edelman would have been justified in considering that Rhinehart had not experienced these symptoms in over a year and a half. In any event, Rhineharts having experienced symptoms of brain disease and his risk of developing brain disease from a new procedure are two different ills. A doctor contemplating a patients treatment would likely commit malpractice if he failed to consider the latter even if he knew about the former. Thus, Dr. Edelman had good reason to consider this additional side-effect, and the fact that he did so does not render his decision a nonmedical one.
Because a reasonable jury could not find that the Rhineharts established the objective and subjective components of the their deliberate-indifference claim against Dr. Edelman, the district court properly granted summary judgment in his favor.
V.
Rhinehart sued his prison doctors under the Eighth Amendment, alleging that they inflicted cruel and unusual punishments on him. We cannot allow his claim to proceed to trial, however, because [m]edical malpractice, even assuming it occurred, does not become a constitutional violation merely because the victim is a prisoner. Estelle , 429 U.S. at 106, 97 S.Ct. 285. Inapt constitutional comparisons, healthcare costs, and prior sins do not decide this case. The Constitution does. The Eighth Amendment forbids obduracy and wantonness, not inadvertence or error in good faith . Wilson , 501 U.S. at 299, 111 S.Ct. 2321 (quoting Whitley , 475 U.S. at 319, 106 S.Ct. 1078 ). To hold a doctor liable under the Constitution for a prisoners medical treatment, the doctor must have acted with deliberate indifference to the prisoners health. Estelle , 429 U.S. at 104, 97 S.Ct. 285. Because the Rhineharts have not presented proof that the Defendant Doctors acted with deliberate indifference in the provision of medical treatment so as to constitute cruel and unusual punishment[ ] under the Eighth Amendment, we AFFIRM the district courts grant of summary judgment for the Defendant Doctors.
KAREN NELSON MOORE, Circuit Judge, concurring in part in the judgment and dissenting in part.
I agree with the majoritys conclusions regarding three of the claims that Plaintiffs-Appellants Lewis and David Rhinehart (the Rhineharts) bring on behalf of their deceased brother, Kenneth Rhinehart (Rhinehart), regarding the medical care that he did-and did not-receive while incarcerated in the Michigan state prisons. Given the legal precedent governing such claims, I believe that summary judgment was proper with regard to Defendants-Appellees Dr. Vernon Stevensons and Dr. Adam Edelmans conduct prior to Rhineharts June 2010 hospitalization, as well as with regard to Edelmans having declined to refer Rhinehart for a liver transplant. I respectfully disagree, however, with regard to (1) Stevensons having failed to ensure that Rhinehart saw a specialist after the June 2010 hospitalization and (2) Edelmans having declined to refer Rhinehart for a transjugular intrahepatic portosystemic shunt (TIPS) procedure after Rhineharts October 2011 hospitalization. I write to explain those two points of broader disagreement.
I. STEVENSONS FAILURE TO REFER RHINEHART POST JUNE 2010 HOSPITALIZATION
While the majority is of course correct that the Eighth Amendment has not always been understood to cover medical care for prisoners, the Supreme Court has been clear that Eighth Amendment challenges are to be judged in accordance with the evolving standards of decency that mark the progress of a maturing society. Estelle v. Gamble , 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Trop v. Dulles , 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) ). Included among our modern standards of decency is the rule that when a government keeps a person in prison-and thus prevents him from accessing any health care beyond what the government affords him-it may not be deliberately indifferent to that persons serious medical needs. Id. at 103-04, 97 S.Ct. 285. The test for allegations of deliberate indifference to a prisoners serious medical needs, as the majority notes, includes both an objective and a subjective prong. Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). I discuss these two prongs in turn.
A. Objective
First, the Rhineharts must establish that the deprivation that Rhinehart suffered was sufficiently serious, such that he was incarcerated under conditions posing a substantial risk of serious harm. Id. I believe that a rational factfinder could conclude that Stevensons failure to refer Rhinehart for follow-up with a specialist meets this test. As the Rhineharts submissions make clear, cirrhosis causes portal hypertension, and portal hypertension in turn can cause both ascites and varices, the former of which is painful and the latter of which can kill. See, e.g. , R. 315-3 (Medical Lit.) (Page ID #7802-03); R. 327-2 (Medical Lit.) (Page ID #8268); R. 345-6 (Medical Lit.) (Page ID #8804). During his June 2010 hospitalization, Rhinehart was treated for both: approximately half a liter of ascitic fluid was removed from his abdomen via paracentesis, and an emergency scoping (or EGD) and banding procedure was performed on his varices. R. 259-2 (June 2010 Discharge Summary at 2-3) (Page ID #4706-07) (*sealed*). Dr. Lynn Schachinger, who did the scoping and banding, accordingly recommended that Rhinehart see a gastroenterologist for additional EGD with esophageal banding as necessary, R. 177 (Medical Records) (Page ID #2421), noting Rhineharts high risk for both esophageal varices and bleeding from them, R. 259-2 (June 2010 Discharge Summary at 2-3) (Page ID #4706) (*sealed*). As the majority notes, both Dr. Stuart Finkel (the Rhineharts expert) and Schachinger testified that they would have very likely ensured that such follow-up occurred for any comparable patient under their personal care, R. 263-13 (Schachinger Dep. at 17) (Page ID #5400); R. 263-14 (Finkel Dep. at 109) (Page ID #5442), and it is not hard to understand why, see R. 296-3 (Medical Lit.) (Page ID #7114) (discussing dangers of variceal bleeding); R. 345-6 (Medical Lit.) (Page ID #8803) (noting that development of ascites in a cirrhotic patient ... portends a poor prognosis). Stevensons failure deprived Rhinehart, a patient whose end-stage liver disease had yielded both varices and ascites, of a chance even to consult with the kind of doctor specially equipped to monitor the grave risks that those symptoms signaled. A factfinder could rationally conclude that such a deprivation posed a substantial risk of serious harm. See Farmer , 511 U.S. at 834, 114 S.Ct. 1970.
Rhinehart did, of course, receive some treatment following the June 2010 hospitalization: he was prescribed beta blockers. Thus, as the majority notes, this claim against Stevenson alleges inadequate treatment, and the Rhineharts accordingly must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment. Santiago v. Ringle , 734 F.3d 585, 590 (6th Cir. 2013) (quoting Napier v. Madison Cty., 238 F.3d 739, 742 (6th Cir. 2001) ); see also Blackmore v. Kalamazoo Cty. , 390 F.3d 890, 898 (6th Cir. 2004). But what the majority fails to recognize outright, see Maj. Op. at 742-43 (declining to decide), is that there is a clear basis on which a rational factfinder could find for the Rhineharts: both Finkels and Schachingers testimony support the conclusion that Rhineharts October 2011 crisis could have been avoided if he had merely been monitored occasionally by a gastroenterologist. R. 263-13 (Schachinger Dep. at 17, 19-20) (Page ID #5400); R. 263-14 (Finkel Dep. at 108) (Page ID #5441) (Had [Rhinehart received follow-up care], the likelihood of that second bleed a year later would have been reduced or eliminated entirely.). Common sense confirms this premise, because it is not at all clear-nor does the defense or the majority explain-how Rhineharts primary-care providers could have been expected to identify, much less forestall, the crisis that Rhinehart in fact suffered in October 2011 in the absence of a specialists knowledge and tools. Instead, as I read the record, a rational factfinder could easily conclude that the objective result of the care that Rhinehart received was to let the prisoners esophageal veins, rather than a specialists monitoring, serve as the warning system. That takes this case outside the analogic sweep of a case like Santiago , to which the majority likens it, Maj. Op. at 742-43, in which an outside dermatologist recommended one medication for a condition but prison doctors continued to prescribe another. See Santiago , 734 F.3d at 591 ; see also id. at 588 (noting that the medication that the outside dermatologist recommended was not part of the standard treatment for the prisoners condition and that the prisoner did receive the recommended medication within less than a month). Here, while the beta blockers that Rhinehart was prescribed may have decreased the risk of a further crisis, that risk was already heightened, as the majority notes, Maj. Op. at 742-43, based on the size of Rhineharts varices. See R. 263-13 (Schachinger Dep. at 17) (Page ID #5400). If anything, going forward without the opportunity for any specialist monitoring under such circumstances sounds more like waiting until someone is suffering an acute appendicitis rather than seeking proactive diagnostic care at an earlier date. See Blackmore , 390 F.3d at 894, 899. Under these circumstances, in short, a rational factfinder could find the objective prong satisfied with regard to Stevensons failure to refer Rhinehart to a specialist after his June 2010 hospitalization.
B. Subjective
The subjective prong may be a tougher climb for the Rhineharts, but I believe that they can satisfy it for purposes of summary judgment as well. An official is deliberately indifferent where she (1) subjectively perceived facts from which to infer substantial risk to the prisoner, (2) did in fact draw the inference, and (3) then disregarded that risk. Santiago , 734 F.3d at 591 (quoting Comstock v. McCrary , 273 F.3d 693, 703 (6th Cir. 2001) ). The Supreme Courts guidance on this question suggests that while ultimate proof at trial may be more difficult, summary judgment should be granted more sparingly. See Farmer , 511 U.S. at 842, 114 S.Ct. 1970 (Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. (citation omitted) ); see also, e.g. , Santiago , 734 F.3d at 591. In my view, the factual questions here are at least debatable enough to preclude summary judgment.
First, there is the question of what Stevenson knew. This is the toughest part of the test for the Rhineharts to satisfy, but I believe that there is enough circumstantial evidence to make summary judgment inappropriate. For one, while the majority is correct that Dr. Zivit Cohen seems to have played a larger role in Rhineharts care than Stevenson did after the June 2010 hospitalization, there is nevertheless evidence that would enable a trier of fact to conclude that Stevenson not only supervised Cohen but also had direct responsibility for Rhineharts care. See R. 259-1 (Medical Records) (Page ID #4612) (*sealed*) (This is the Patient of DR,Stevenson [sic]....); R, 263-4 (Howell Dep. at 40) (Page ID #5088) ([F]or this particular prisoner, it would have been Dr. Stevenson....); R. 263-5 (Vermuri Dep. at 38-40, 130-31) (Page ID #5115, 5138) (agreeing that Stevenson was in charge of other doctors, including Cohen, and assigned patients to them); id. at 92, 109-111 (Page ID #5128, 5133) (agreeing that Rhinehart was specifically assigned to Stevenson). So Stevensons role provides some circumstantial evidence to conclude that Stevenson knew what was going on with Rhinehart.
Then there is the evidence that Stevenson (prior to his August 2010 departure) not only remained involved in Rhineharts care after the hospitalization but also-much more probatively-was consulted by a nurse as it was becoming clear that Rhinehart was not tolerating the beta blockers, which were causing him shortness of breath. See R. 315-2 (Medical Records) (Page ID #7736) (Spoke with Dr. Stevenson: Informed of increasing episodes of SOB....). This is why the majoritys minimization of Stevensons involvement after the June 2010 hospitalization, see Maj. Op. at 742-43 & n.15, is so unsatisfying. The beta blockers were, as the majority readily acknowledges, the only meaningful treatment that Rhinehart was given to manage the life-threatening varices that had already been discovered. See id. at 742-43. And the fact that Stevenson knew about Rhineharts difficulties with the beta blockers makes it significantly more likely that he was aware of why Rhinehart was on beta blockers and what other alternatives existed. A rational factfinder could certainly conclude as much.
That brings us to the second question of the subjective prong: what Stevenson actually inferred. To be clear, the Rhineharts need not locate a mind reader who can testify to exactly what synapses fired in Stevensons brain; it is enough to show, for example, that Stevenson declined to confirm inferences of risk that he strongly suspected to exist. See Farmer , 511 U.S. at 843 n.8, 114 S.Ct. 1970. Here there is again enough circumstantial evidence for summary-judgment purposes. Stevenson has been a doctor since 1997. R. 263-3 (Stevenson Dep. at 5 (Page ID #5014) ). He knew that Rhinehart had likely been suffering from cirrhosis from the time of his transfer, id. at 48-49 (Page ID #5024-25), and he had known since well before the June 2010 hospitalization that Rhineharts referring doctor had felt that Rhinehart needed to see specialists, including a gastroenterologist, id. at 56 (Page ID #5026). Stevenson also appears to have been familiar with esophageal varices, see id. at 113 (Page ID #5041)-at least enough to know that they require getting an expert involved. For while Stevenson asserted that he had very limited, if any, contact with Rhinehart after June 2010, Stevenson also testified that if he had treated someone with Rhineharts conditions in private practice, [the patient] definitely would see an [sic] gastroenterologist, id. at 118-19 (Page ID #5042). In other words: knowing what a rational factfinder could find Stevenson to have known, Stevenson very likely would have concluded that it was highly risky for Rhinehart not to see a specialist.
Third, there is the question of whether Stevenson disregarded the risk. Here, the record is plain: aside from overseeing the provision of beta blockers and Cohens generalist monitoring, Stevenson did nothing. See, e.g. , id. at 118 (Page ID #5042); Appellees Br. at 31-32. The majority concludes that Stevenson cannot be held liable in light of the treatment that Stevensons associates provided, see Maj. Op. at 743-44 (asserting that the Rhineharts have failed to show that the treatment Rhinehart received amounted to a conscious disregard of the risk that Rhinehart faced), but this argument gives that treatment too much credit. Just as it does not clinch this case on the objective prong, the simple fact that Rhinehart received beta blockers and generalist monitoring does not mean victory for the defendants on the subjective prong if it was clear that Rhinehart needed more. Rather, this subjective defense is available only to prison doctors who respond[ ] reasonably to [a] risk. See Farmer , 511 U.S. at 844, 114 S.Ct. 1970 ; see also Comstock , 273 F.3d at 706 (noting that a physician cannot do[ ] less than [his] training indicate[s] [is] necessary (second alteration in original) (citation omitted) ); Self v. Crum , 439 F.3d 1227, 1232 (10th Cir. 2006) (If a prison doctor, for example, responds to an obvious risk with treatment that is patently unreasonable, a jury may infer conscious disregard.). And as the above discussion shows, there is medical evidence that Rhinehart needed a specialists monitoring-just as Schachinger said that he did-even if beta blockers and a generalist might have been sufficient for other patients. See R. 177 (Medical Records) (Page ID #2421); R. 263-13 (Schachinger Dep. at 15-17) (Page ID #5399-5400). It is therefore no answer to invoke cases discussing reasonable responses to medical risks, see Maj. Op. at 743-44 (citing Self , 439 F.3d at 1232-33 ), when there is evidence for a rational factfinder to conclude that Stevensons response was unreasonable. In short, a rational factfinder could conclude that Stevenson (1) knew about Rhineharts situation, (2) inferred the risks stemming from it, and (3) did nothing in the face of those risks. I would accordingly reverse the district courts grant of summary judgment to Stevenson on this claim.
II. EDELMANS FAILURE TO REFER RHINEHART FOR A TIPS PROCEDURE
I also part ways with the majority on Edelmans failure to refer Rhinehart for a TIPS. Because a TIPS could have meaningfully improved Rhineharts quality of life by diminishing his ascites, I would reverse and allow this claim to go forward too.
A. Objective
I agree with the majority that the Rhineharts cannot premise this claim on the possibility of further variceal bleeding given that Rhinehart died a little over a year after his October 2011 episode of variceal bleeding without suffering any further variceal bleeding. Maj. Op. at 749-50. The Rhineharts therefore must, as the majority observes, show that a TIPS procedure would have alleviated some other symptom. Id. ; see also, e.g. , Santiago , 734 F.3d at 590 (noting that plaintiffs challenging adequacy of treatment must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment. (quoting Napier, 238 F.3d at 742 ) ). In contrast to the majority, I believe that the pain that Rhinehart suffered from his recurrent ascites qualifies for purposes of surviving summary judgment.
First, consider the causal chain as laid out by the medical literature in the record: Hepatitis C can cause end-stage liver disease and cirrhosis, R. 327-2 (Medical Lit.) (Page ID #8303), which in turn can cause high blood pressure in the vein connecting ones digestive organs to ones liver (portal hypertension ), R. 315-3 (Medical Lit.) (Page ID #7802). Portal hypertension, in turn, can cause both varices and ascites. See, e.g. , id. (Page ID #7802-03); R. 327-2 (Medical Lit.) (Page ID #8268). More than trace amounts of ascites can in turn cause abdominal distension and pain, as well as difficulty breathing. See R. 315-3 (Medical Lit.) (Page ID #7803); R. 327-2 (Medical Lit.) (Page ID #8268). Aside from paracentesis, the way to treat ascites that is resistant to simpler treatments (that is, difficult to treat ascites) is the same as the treatment for the risk of variceal bleeding: a TIPS procedure. R. 327-2 (Medical Lit.) (Page ID #8269). And that is one reason why a TIPS procedure has been found to yield a significantly improved quality of life on qualifying patients. See R. 296-3 (Medical Lit.) (Page ID #7064) (listing decreased ascites as one of three reasons for the effect); see also, e.g. , R. 315-3 (Medical Lit.) (Page ID #7813) (noting that a TIPS ameliorates ascites). While not expressly distilled by an expert, this literature makes clear the requisite causal link, see King v. Alexander , 574 F. Appx 603, 606 (6th Cir. 2014), between the denial of a TIPS and pain from ascites.
Second, consider Rhineharts actual medical history. Rhinehart, we know, had cirrhosis. See, e.g. , R. 263-3 (Stevenson Dep. at 48-49) (Page ID #5024-25). His cirrhosis evidently caused portal hypertension. See, e.g. , R. 259-2 (June 2010 Discharge Summary at 2-3) (Page ID #4706-07) (*sealed*). His portal hypertension evidently caused serious ascites at the time of both of his hospitalizations: roughly half a liter of straw-colored fluid was removed via paracentesis on June 29, 2010, R. 259-2 (June 2010 Discharge Summary at 2) (Page ID #4706) (*sealed*), and nearly a liter and a half was removed at the end of October 2011, R. 345-3 (Oct. 2011 Discharge Summary at 1) (Page ID #8755). And his ascites evidently caused ongoing pain. See, e.g. , R. 349-2 (Page ID #8927-28, 8930-31, 8938-40, 8950-52). That all is enough for a rational factfinder to conclude that Edelmans denial of a TIPS caused Rhinehart pain that he would not have otherwise endured.
B. Subjective
I believe that the Rhineharts can also satisfy the subjective prong of the deliberate-indifference standard on summary judgment. As noted above, the Rhineharts must introduce sufficient facts from which a rational factfinder could conclude that Edelman (1) subjectively perceived facts from which to infer substantial risk to [Rhinehart], (2) did in fact draw the inference, and (3) then disregarded that risk. Santiago , 734 F.3d at 591 (citation and internal quotation marks omitted).
The first two steps are easily satisfied: there is no real debate that Edelman knew sufficient facts about Rhineharts medical situation and had heard Schachingers and Dr. Mohmmed Al-Shihabis dire warnings. See, e.g. , R. 263-2 (Edelman Dep. at 184-85) (Page ID #4999-5000); Maj. Op. at 749-50. As Al-Shihabi summarized things:
Dr. Schachinger expressed that if the patient bled again, he cannot do anything about that and the patient might bleed until he died.... I have discussed this case with the nurse supervisor on the secure unit and the case management who also contacted Dr. Edelman [about a transfer for a TIPS procedure]. [Dr. Edelman] denied this transfer and he said that we just need to continue monitoring the patient here, even though Dr. Schachinger said that if the patient bleeds he cannot do to anything [sic] and the patient will be unstable to be transferred or do anything and the patient will definitely die.
R. 259-2 (Oct. 2011 Progress Note at 1) (Page ID #4715) (*sealed*). Rhineharts discharge summary from the same hospitalization, moreover, noted not only the risk of recurrent variceal bleeding, but also the risk of recurrent ascites and the likely need for further paracentesis in the absence of a TIPS procedure. See R. 345-3 (Oct. 2011 Discharge Summary at 1) (Page ID #8755) ([T]he patient has potential to re-bleed from his esophageal varices and recurrent paracentesis if TIPS procedure is not performed.). Based on these facts, a rational factfinder could easily conclude that Edelman understood the facts surrounding Rhineharts situation and inferred that there was a substantial risk.
The third step presents a harder question. As the majority indicates, Maj. Op. at ---- - ----, the question conceivably comes down to a mere difference of doctors opinions: Schachinger and Al-Shihabi said that a TIPS was necessary, and Edelman and another prison administrator, Dr. Jeffrey Stieve, suggested that a TIPS was unnecessary and that its risks outweighed its rewards. See, e.g. , R. 263 (Edelman Dep. at 201) (Page ID #5004). If this were in fact a dilemma susceptible to no clear answer, then I agree that the Rhineharts would not be able to prove that Edelman consciously disregarded a known risk; instead, he would have permissibly adopted one of several reasonable medical approaches. See Farmer , 511 U.S. at 845, 114 S.Ct. 1970 (Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.). On the other hand, however, a defendant cannot automatically win on summary judgment simply by proposing some hypothetical downside: if the defendants in Blackmore , for example, had claimed that they had declined to initiate an appendectomy because occasionally appendicitis patients die during appendectomies, a jury surely could have concluded that this rationale was mere pretext, given that a much greater percentage of patients die if deniedappendectomies. Cf. Battista v. Clarke , 645 F.3d 449, 452, 455 (1st Cir. 2011) (upholding preliminary injunction based on district courts finding of a collection of pretexts, delays, and misrepresentations in prison officials justifications, id. at 452 ). If a rational factfinder could conclude that Edelmans justification for denying Rhinehart a TIPS procedure was mere pretext to mask deliberate indifference, then summary judgment is improper.
On my read of the record, Edelmans justification is shaky enough to preclude summary judgment. True, he and Stieve had some facts on their side: there is no evidence that a TIPS would have prevented Rhinehart from eventually dying of liver disease, and use of a TIPS carries with it an increased risk of hepatic encephalopathy (HE). See, e.g. , R. 263-13 (Schachinger Dep. at 48) (Page ID #5407); R. 263-14 (Finkel Dep. at 102-04) (Page ID #5440); Maj. Op. at 754-55 (noting Stieves explanation that a TIPS would not prolong Rhineharts life and came with an increased risk of brain disease). But on closer inspection, neither of these justifications is as compelling as they at first appear.
For one, the fact that a TIPS would not have affected Rhineharts overall mortality is not dispositive. Doctors are, of course, not absolved of Eighth Amendment liability simply because a particular treatment will not cure a disease. See, e.g. , Scott v. Ambani , 577 F.3d 642, 648 (6th Cir. 2009) (reversing dismissal of claim based on refusal to provide pain medication). Moreover, there is medical evidence from which a rational factfinder could conclude that a TIPS would have prolonged and improved Rhineharts life. See, e.g. , R. 263-14 (Finkel Dep. at 102-04) (Page ID #5440); R. 296-3 (Medical Lit.) (Page ID #7064) (documenting increased quality of life from TIPS intervention, including through diminished ascites); id. (Page ID #7113) (documenting significant reductions in treatment failure and in mortality from early use of TIPS); see also R. 315-3 (Medical Lit.) (Page ID #7813) (concluding that TIPS is effective in lowering elevated portal pressures, has acceptable postprocedure complication and mortality rates, and ameliorates ascites). So the fact that a TIPS would not have changed Rhineharts underlying prognosis does not preclude a finding that Edelman was deliberately indifferent in denying Rhinehart care that would have extended or improved his remaining years.
Then there is the danger of HE, described in one record source as confusion and forgetfulness caused by poor liver function and the diversion of blood flow away from your liver. R. 315-3 (Medical Lit.) (Page ID #7803). But Edelmans HE justification is also questionable. First, as the Rhineharts note, Appellants Br. at 25 & n.26, HE, while not trivial, is a complication in a minority of patients treated with TIPS, and where it occurs it appears more likely to be episodic and temporary rather than recurrent or refractory. R. 296-3 (Medical Lit.) (Page ID #7123); see also R. 315-3 (Medical Lit.) (Page ID #7813) (finding that twenty percent of TIPS recipients sustain new or worsening HE). In other words, the likelihood of a TIPS causing HE in Rhineharts case-as well as the likely seriousness even if HE were to manifest-is highly speculative. Second, in contrast to the majoritys ominous use of the phrase brain disease, see Maj. Op. at 732-33, 751-53, the medical literature in the record describes HE as a manageable side effect-a condition that can be treated with medications, diet, or by replacing the shunt. R. 315-3 (Medical Lit.) (Page ID #7806); see also R. 296-3 (Medical Lit.) (Page ID #7083) (finding certain types of shunts, which can be modified on the basis of the patients clinical condition, to be effective in reducing shunt flow and rapidly improving patients with otherwise refractory HE). In short, HE was a possible complication, but far from a certain or inexorable one.
HE is also not a condition brought on only by a TIPS. Rather, HE can alternately stem from portal hypertension itself-the very condition that a TIPS can help alleviate. R. 315-3 (Medical Lit.) (Page ID #7803-04). Indeed, HE is clinically classified into three major categories: Type A occurs in patients with acute liver failure. Type B occurs in patients with [a TIPS]. Type C is related to underlying cirrhosis. R. 296-3 (Medical Lit.) (Page ID #7123). Rhinehart already fell into the first and third of those categories, meaning that he was at risk of HE regardless. Further, as the Rhineharts argue, Appellants Br. at 26, there is evidence that Rhinehart may have been suffering from cirrhosis/portal-hypertension-induced HE at times already. R. 259-1 (Medical Records) (Page ID #4629, 4640) (*sealed*). It is therefore possible that a TIPS actually could have ameliorated that preexisting condition. See R. 315-3 (Page ID #7813) (Three months after TIPS, the incidence of new or worsening hepatic encephalopathy was 20%, but encephalopathyimproved in an equal proportion of patients. (emphasis added) ). In other words, it is not as if HE was simply a threat that Edelman could protect Rhinehart from by denying Rhinehart a TIPS procedure. Instead, Edelman potentially consigned Rhinehart to continuing to suffer with HE that a TIPS could have helped abate. And in any event, Edelman was choosing between two options that each carried with them the risk of HE for Rhinehart.
Edelmans generalized HE justification consequently begins to look a good deal thinner, particularly when juxtaposed against Schachingers dire warnings about Rhineharts specific condition. See R. 259-2 (Oct. 2011 Endoscopy Report at 3) (Page ID #4713) (*sealed*) ([T]here is nothing further, I believe, that I can do given all the bands that are already placed on the esophageal varices and those bands would get knocked off trying to treat any additional bleeding and would be ineffective.); id. ([T]here is a fair chance that this is going to bleed again and he may bleed to death and I recommend that he be transferred.); see also R. 259-2 (Oct. 2011 Progress Note at 1) (Page ID #4715) (*sealed*) (Dr. Schachinger said that if the patient bleeds he cannot do to anything [sic] and the patient will be unstable to be transferred or do anything and the patient will definitely die.). It is, in other words, very far from clear that the risks of HE matched up with the rewards of a TIPS procedure in any meaningful way.
This imbalance looks even starker once one compares Schachingers and Edelmans expertise. Schachinger was a specialist in gastroenterology who had twice performed endoscopies on Rhinehart. R. 263-13 (Schachinger Dep. at 8, 29-30) (Page ID #5397, 5403). Edelman, on the other hand, was an administrator who had never treated Rhinehart and rarely saw patients at all during the years at issue here. See R. 263-2 (Edelman Dep. at 24-25) (Page ID #4959-60); see also id. at 187 (Page ID #5000) ([Schachinger] has more experience than me, and expertise, yes.). And in fact, as both Finkel and the Rhineharts have pointed out, R. 263-10 (Finkel Report at 9) (Page ID #5381); Appellants Br. at 24-25, Edelman was not even clear on the nature of a TIPS procedure, opining that it was very invasive, with an incision ... probably made in the femoral area. R. 263-2 (Edelman Dep. at 211) (Page ID #5006). Compare id. , with R. 315-3 (Medical Lit.) (Page ID #7805) (The TIPS procedure is not a surgical procedure. The radiologist performs the procedure within the vessels under X-ray guidance. The procedure lasts 1 to 3 hours.). While Edelmans comparative disadvantage in expertise and first-hand knowledge of Rhineharts condition does not mean that he could not have reasonably disagreed with Schachingers recommendation, it does cast further doubt on the idea that denying the TIPS reflected a mere good-faith difference of opinion among doctors based on genuine concerns about HE.
On balance, then, I do not believe that Edelmans purported explanation suffices to preclude a rational factfinder from concluding that Edelman purposefully disregarded a known risk. To be sure, I agree that a factfinder could conclude at trial that Edelman denied the TIPS procedure because he was concerned about HE. But both the medical and circumstantial evidence suggests that a rational factfinder could also permissibly subscribe to Finkels analysis and conclude that, while [t]here may have been non-medical reasons, ... there was no medical reason to deny Schachingers recommendation for a TIPS procedure and, accordingly, that Edelmans explanation was not the sincere, reasonable medical judgment that the majority takes it to be. See R. 263-14 (Finkel Dep. at 104-05) (Page ID #5440-41); see also Farmer , 511 U.S. at 842-43 & n.8, 114 S.Ct. 1970. In contrast with the majority, then, I would also allow this question to be resolved the way that all genuine issues of material fact should be: by a factfinder at trial.
III. CONCLUSION
It may be tempting to some to minimize the decency that is due to ailing prisoners, whether because history reveals more shocking punishments, or because medical care is expensive, or because they may have been convicted of heinous crimes. But the Eighth Amendment obligates us to take our commitments to those who cannot provide for their own medical care seriously. Estelle , 429 U.S. at 103-04, 97 S.Ct. 285. Because I believe that a rational trier of fact could conclude (1) that Stevenson was deliberately indifferent in failing to refer Rhinehart to a specialist after Rhineharts June 2010 hospitalization and (2) that Edelman was deliberately indifferent in denying Rhinehart a referral for a TIPS procedure after Rhineharts October 2011 hospitalization, I respectfully dissent from the majoritys affirmance of the district courts grant of summary judgment on those two claims. I otherwise concur in the majoritys judgments.
Corizon was previously called Prison Health Services.
During his deposition, Dr. Edelman did not recall Dr. Berhanes discussion with him about Rhinehart, but he acknowledged that it was uncommon for an on-site medical provider to call him when beginning a referral request.
Dr. Stevenson contests this. He testified that Rhinehart was never completely his patient.
The Rhineharts sued several Cotton nurses, but the claims against them were dismissed and are not at issue.
The Rhineharts sued Dr. Vemuri, but the claims against her were dismissed and are not at issue.
Rhinehart alleged in a grievance that Dr. Vemuri did not have his medical file at the time of the examination. In her deposition, Dr. Vemuri admitted that this was probably true.
The day after Rhineharts appointment with Dr. Vemuri, Dr. Stevenson completed a request for Rhinehart to undergo a liver biopsy. But Dr. Stevensons biopsy request was never granted.
The Rhineharts did not sue Dr. Cohen.
Dr. Stevensons last involvement in Rhineharts case was on August 7, 2010, when a prison nurse informed him that Rhinehart had reported shortness of breath. Dr. Stevenson directed her to continue monitoring Rhinehart and to provide him with inhaler breathing treatments.
That motion was ultimately denied, and this court affirmed. See Rhinehart v. Scutt , 509 F. Appx 510, 516 (6th Cir. 2013).
Both doctors also noted that Rhinehart was scheduled for an open liver biopsy. That biopsy, conducted in September 2011, again confirmed that Rhinehart did not have cancer.
In Robinson v. California , the Supreme Court held that the Eighth Amendment prohibition against cruel and unusual punishments applies to the states through the Fourteenth Amendment. 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Thus, prisoners may sue state prison authorities for Eighth Amendment violations.
See also D. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic 48 (2d ed. 1990) (noting that eighteenth-century criminal codes would rarely rely upon institutionalization and that [t]he idea of serving time in a prison as a method of correction was the invention of a later generation).
To the extent the Rhineharts argue that Rhinehart received no treatment at all during the initial two months after his transfer to Cotton, there is insufficient evidence to conclude that Dr. Stevenson was aware of the problem until mid-December 2009. At that point, Dr. Stevenson arranged to have Rhinehart seen relatively soon thereafter. See R. 263-3, Stevenson Dep., Page ID# 5029-30. Thus, this argument fails on the subjective prong of the deliberate-indifference test. See Santiago , 734 F.3d at 592-93 (discussing limits of drawing inferences from relatively short delays or delays not in a doctors control).
In her separate opinion, Judge Moore contends that we have minimalized Dr. Stevensons involvement in Rhineharts care after his June 2010 hospitalization. Concurring and Dissenting Op. at 756-57. But the record speaks for itself. Dr. Stevenson participated only once in Rhineharts care after he was hospitalized. Here is the clinical note that memorialized his involvement in that one instance:
Informed of increasing episodes of SOB,
Assessment relayed to MD as documented.
Continue to monitor & Detail for Combivent breath in txs TID PRN x 2 weeks.
R. 259-1, Clinical Progress Note, Page ID# 4672. Judge Moore argues that the existence of this note makes it significantly more likely that [Dr. Stevenson] was aware of why Rhinehart was on beta blockers and what other alternatives existed. Concurring and Dissenting Op. at 756. We do not see how. The note says nothing about Rhineharts ESLD or his beta-blocker medication. Rhinehart had smoked for forty years, experienced breathing difficulties since the late 1990s, and reported shortness of breath long before his hospitalization in June 2010. See, e.g. , R. 259-1, Medical Note Summary, Page ID# 4624. Given this history, no reasonable jury could infer that Dr. Stevenson knew Rhinehart faced a serious ESLD-related risk-for example, a risk of an esophageal bleed-from a nurses having told him that Rhinehart was experiencing shortness of breath in August 2010.
See United Network for Organ Sharing, The Organ Procurement and Transplantation Network, Transplants in the U.S. by Region, at https://optn.transplant hrsa.gov/data/ (last modified June 26, 2018).
Though the Rhineharts also appeal the district courts decision finding inadmissible Dr. Finkels testimony about pain Rhinehart allegedly endured due merely to hypertension, we need not address the district courts ruling on this issue. Dr. Finkels testimony would support only the objective component of the Rhineharts deliberate-indifference claim against Dr. Edelman, and we hold that the Rhineharts also failed to establish the subjective component of their claim.
To be clear, as the majority observes, Maj. Op. at 741, endoscopy is not the only way for a medical professional to monitor a patients varices-x-rays and lab tests can be used as well. R. 315-3 (Medical Lit.) (Page ID #7803). But it is not clear that Rhineharts generalist prison doctors were equipped to perform this monitoring, and some medical evidence suggests that the best approach for managing variceal bleeding is to enlist a team of gastroenterologists, hepatologists, hematologists, critical care physicians, surgeons, and interventional radiologists, which suggests that follow-up with a single specialist was closer to a bedrock necessity than a gold-standard luxury. See R. 296-3 (Medical Lit.) (Page ID #7130). Schachinger, moreover, clearly recommended that Rhinehart see a gastroenterologist for additional EGD with esophageal banding as necessary, providing medical evidence that in this case, a qualified medical expert thought that generalist monitoring was not enough. R. 177 (Medical Records) (Page ID #2421); see also R. 263-13 (Schachinger Dep. at 15-17) (Page ID #5399-5400). And while Schachinger was not empowered to make binding prescriptions for what kind of care Rhinehart should receive, see R. 263-13 (Schachinger Dep. at 15-16) (Page ID #5399), our cases do not support the notion that a prison doctor who delays treatment may escape liability simply because the treatment was recommended rather than prescribed, Santiago , 734 F.3d at 590.
The majoritys arguments to the contrary, see Maj. Op. at 742-43 n.15, are legitimate reasons that a rational factfinder could conclude otherwise at trial , but I do not see why they entail that we, at summary judgment, cannot allow [Rhineharts] claim to proceed to trial, see Maj. Op. at 753 (emphasis added).
In keeping with these facts, I cannot agree with the majority that this is not a case in which a prison doctor ignored a specialists recommendation. Maj. Op. at 744. Schachinger was a specialist, R. 263-13 (Schachinger Dep. at 8) (Page ID #5397); Schachinger recommended that Rhinehart follow up with a specialist for further scoping after his June 2010 hospitalization, R. 177 (Medical Records) (Page ID #2421); R. 263-13 (Schachinger Dep. at 15-17) (Page ID #5399-5400); and Stevenson, who seems to have been well-positioned to act, did nothing to make that follow-up happen. To the extent that a rational factfinder could conclude that Stevenson knew the relevant facts and drew the relevant inferences-questions that I believe are satisfied here-this is, on my read, very much a case in which a prison doctor (Stevenson) ignored a specialists recommendation (Schachingers).
Nor is it any answer to distinguish this case from one like LeMarbe v. Wisneski , 266 F.3d 429 (6th Cir. 2001), in which we found sufficient evidence of conscious disregard where a doctor ignored a risk that would have been obvious to just about anyone, see id. at 438. While some risks may indeed be particularly obvious, the issue here is that the facts of this particular situation, as seemingly known to Stevenson, at least arguably would have made clear to Stevenson that Rhinehart faced a serious medical risk. Thus, given that there was evidence to conclude that Stevenson did less than [his] training indicated was necessary, Comstock , 273 F.3d at 706 (alteration in original) (citation omitted), it is no more dispositive that Stevenson did not overlook something absurdly obvious than it would be, in a manslaughter trial, to note that the defendant did not commit first-degree murder.
This was, it bears noting, a significant amount of ascites, R. 345-3 (Oct. 2011 Discharge Summary at 2) (Page ID #8756), and the doctor who wrote Rhineharts discharge summary made clear not only that Rhinehart had the potential to re-bleed from his esophageal varices, but also that he would require recurrent paracentesis if [a] TIPS procedure [were] not performed, id. at 1 (Page ID #8755).
The majority suggests that this logic still must fail because the Rhineharts have not proven that the monitoring, diuretics, and pain medication that Rhinehart did receive was not an adequate alternative treatment plan. Maj. Op. at 749-50. But this conclusion is belied by the majoritys own observation that, as the Rhineharts point out, Rhinehart continued to experience abdominal pain and distension around his liver area up until his death, id. , some of which was plainly identified as ascites. See R. 349-2 (Page ID #8927-28, 8930-31, 8938-40, 8950-52); see also Reply Br. at 25-26. In other words, a rational trier of fact could conclude from those ongoing symptoms that Rhinehart did have difficult to treat ascites, see Maj. Op. at 749-50 (quoting R. 345-6 (Medical Lit.) (Page ID #8802) ), that his ascites was not being effectively managed by pain medication and/or diuretics, and thus that the treatment that Rhinehart actually received was inadequate.
Although Schachingers endoscopy report is more ambiguously phrased, see R. 259-2 (Oct. 2011 Endoscopy Report at 3) (Page ID #4713) (*sealed*) (I feel that the transfer should occur if he has additional bleeding as there is nothing further, I believe, that I can do given all the bands that are already placed on the esophageal varices and those bands would get knocked off trying to treat any additional bleeding and would be ineffective.), the surrounding text suggests that what Schachinger meant that there was nothing further that Schachinger could do if Rhinehart sustained further variceal bleeding, see id. ([T]here is a fair chance that this is going to bleed again and he may bleed to death and I recommend that he be transferred.). This reading is bolstered by Al-Shihabis summary of Schachingers position. R. 259-2 (Oct. 2011 Progress Note at 1) (Page ID #4715) (*sealed*). In any event, this ambiguity at worst creates an issue of fact suitable for further probing at trial.
The physiology of TIPS-induced HE appears to arise from the fact that a TIPS works by mak[ing] a tunnel through the liver that reroutes blood flow in the liver, thereby reduc[ing] pressure in all abnormal veins. R. 315-3 (Medical Lit.) (Page ID #7805). Because it can also thereby reduce blood flow to the liver, it may result in toxic substances reaching the brain without being metabolized first by the liver. Id. (Page ID #7806).
The majority does not suggest that Schachinger , by contrast, knew this aspect of Rhineharts medical history. The majoritys argument that Schachingers general statement about the potential side effects of a TIPS shows that the medical reasons relied on by Dr. Edelman and Dr. Stieve were ... not pretextual, Maj. Op. at 752, is therefore overstated.
It is true, as the district court noted, R. 356 (Dist. Ct. Op. & Order at 18) (Page ID #9053), and as the majority emphasizes, Maj. Op. at 751, that Stieve, who consulted with Edelman on the question, may have known more about the TIPS procedure than Edelman. See R. 340-1 (Stieve Dep. at 56) (Page ID #8589). But see id. at 118 (Page ID #8605) (Q. Now, is a TIPS an invasive procedure, Doctor? A. It is.). But Stieve was an administrator who had never examined or treated Rhinehart, id. at 28-29, 44 (Page ID #8582-83, 8586), who had previously served primarily as an obstetrician-gynecologist, id. at 39-40 (Page ID #8585), who could not recall whether he had reviewed any of Rhineharts medical records before agreeing with Edelman to deny the TIPS procedure, id. at 117 (Page ID #8605), and who could not recall the success rate of a TIPS procedure or the likelihood of a TIPS inducing HE in a patient, id. at 117, 143 (Page ID #8605, 8611). In short, the mere fact that Stieve consulted on the question does little to firm up the inconsistencies and shortcomings in Edelmans justification.