                              In the

 United States Court of Appeals
                 For the Seventh Circuit

No. 10-3687

P ETER C OTTS,
                                                Plaintiff-Appellant,
                                  v.

S ETH O SAFO , et al.,
                                             Defendants-Appellees.


             Appeal from the United States District Court
                  for the Central District of Illinois.
              No. 05 CV 1150—Harold A. Baker, Judge.



    A RGUED S EPTEMBER 9, 2011—D ECIDED A UGUST 10, 2012




  Before C UDAHY, P OSNER, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Peter Cotts maintains that
prison officials were deliberately indifferent to the com-
plications from his painful hernia. Both parties agreed
that the jury should receive instructions based on our
pattern jury instructions for deliberate indifference
claims. Yet the instructions the jury received, over objec-
tions from both sides, suggested that “cruel and unusual
2                                             No. 10-3687

punishment” was an independent element of liability
above and beyond a showing that the defendants were
deliberately indifferent to Cotts’s serious medical need.
They also incorrectly suggested that damages were an
element of liability. The misleading instructions prej-
udiced Cotts, and so we remand for a new trial.


                  I. BACKGROUND
   Peter Cotts was injured in November 2004 while incar-
cerated at the Illinois River Correctional Facility. He
went to the prison’s health care unit and complained
of intense pain in the area of his right groin. Dr. Seth
Osafo diagnosed Cotts with an inguinal hernia in his
lower right abdomen, two inches in diameter, that was
pushing into his groin. Over the next five months, Cotts
visited Illinois River’s health care unit sixteen times to
seek help for his painful hernia, and he told the
health professionals that the pain was interfering with
his ability to walk, sleep, and use the restroom. He
did not receive the surgery he requested. Instead, the
health care providers treated his hernia by “reducing”
it, that is, by manually shoving it back into Cotts’s ab-
domen. Cotts testified that this procedure was very
painful and that often, when he returned to a seated
position, the hernia would pop right back out. None-
theless, Cotts said, Dr. Osafo told him that no
matter how much he complained of the pain from
his hernia, Dr. Osafo would not allow him to be con-
sidered a candidate for surgical repair because the
hernia was reducible.
No. 10-3687                                              3

  After his release on parole on May 20, 2005, Cotts went
to the county hospital in Chicago to seek help for his
hernia. During a November 2005 appointment, a doctor
scheduled a surgery date for May 12, 2006. Several
months after the appointment, in early 2006, Cotts was
admitted to the emergency room with “unbearable” hernia
pain. He later visited a doctor at a clinic who offered
to perform the surgery if Cotts could pay for it, but Cotts
could not. On May 9, 2006, Cotts was arrested for
violating his parole. He was sent back to prison three
days before his surgery was to take place.
  When he returned to prison, Cotts was first housed
at Stateville Correctional Center. A doctor examined him
at that facility’s health care unit on May 19, 2006.
Cotts testified that the doctor told him his hernia
looked “very bad” and necessitated surgery, and that
the doctor said he would make that note in Cotts’s
medical records for the benefit of the medical provider
at the facility where Cotts would be housed. At this
point, Cotts’s hernia was the size of a grapefruit in his
groin and a small grapefruit in his right scrotum. Four
days later, Cotts was transferred to Shawnee Correc-
tional Center, where he was taken to the health care
unit immediately after he was processed. He returned
repeatedly to that facility’s health care unit over the
next eight months but was told he could not have
surgery because the hernia was reducible. Finally, on
February 9, 2007, Cotts was allowed to see a general
surgeon, who repaired his hernia three days later.
  Cotts filed this lawsuit pursuant to 42 U.S.C. § 1983. He
alleged that doctors including Dr. Osafo, as well as
4                                             No. 10-3687

Wexford Health Sources, Inc., a private company that
provided the health care services at the prisons where
Cotts was housed, were deliberately indifferent to a
serious medical need by failing to provide prompt and
adequate treatment for his hernia. The district court
denied the defendants’ motion for summary judgment,
and the case proceeded to trial. There, the parties
disputed the reason that the defendants denied Cotts’s
surgery requests. Cotts maintained that they did so
because Wexford’s policy on hernias did not allow
surgery for “reducible” hernias, regardless of pain level,
and because Wexford would have been responsible
for paying for the surgery. He introduced Wex-
ford’s guideline for the treatment of an abdominal
wall inguinal hernia: “Patients with stable abdominal wall
hernias are not, in general, candidates for [hernia repair
surgery] and will be monitored and treated with appro-
priate non-surgical therapy.” The defendants’ position
was that Cotts’s hernia did not necessitate surgery.
Two doctors testified that Wexford’s clinical guidelines
were educational tools and not direct orders.
  The parties agreed to use instructions modeled after
the Seventh Circuit’s pattern jury instructions for delib-
erate indifference claims. Despite that agreement, and
over the objection of both parties, the district court
refused several of the parties’ jointly proposed instruc-
tions and instead gave its own. The jury returned a
verdict finding the defendants not liable, and Cotts ap-
peals.
No. 10-3687                                               5

                      II. ANALYSIS
  Cotts maintains that the jury instructions given in his
trial were incorrect and confusing, and that they may
well have led the jury to rule against him. A district court
has discretion when deciding which instructions to
give a jury. Alcala v. Emhart Indus., Inc., 495 F.3d 360,
363 (7th Cir. 2007). But the instructions it gives must
fairly and accurately state the governing law. Huff v.
Sheahan, 493 F.3d 893, 899 (7th Cir. 2007). To deter-
mine whether they are fair and accurate, we look at the
instructions as a whole and conduct a de novo review.
Id. Instructions that misstate or insufficiently state the
law warrant a new trial when the instructions prejudice
the losing party. Cruz v. Safford, 579 F.3d 840, 843 (7th
Cir. 2009).


  A. Elements Instruction
  Cotts takes issue with several of the instructions the
jury received, but his principal challenge is to the “ele-
ments instruction” that told the jury what Cotts needed
to prove to succeed on his claim. Cotts’s first conten-
tion is that the elements instruction given to the jury
over both sides’ objection erroneously added “cruel and
unusual punishment” as an element of liability.
  The constitutional source of a deliberate indifference
claim is the Eighth Amendment’s ban on cruel and
unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104
(1976). That said, the Supreme Court has long made clear
that proving deliberate indifference to a serious medical
6                                              No. 10-3687

need itself establishes an Eighth Amendment violation.
See id. (stating deliberate indifference to a prisoner’s
serious medical need constitutes the “unnecessary
and wanton infliction of pain” proscribed by the Eighth
Amendment); see also Farmer v. Brennan, 511 U.S. 825, 828
(1994). No separate showing of cruel and unusual punish-
ment is or may be required, and the jurors here did not
need to know the underlying basis of the claim to decide
the case. See, e.g., Gayton v. McCoy, 593 F.3d 610, 620
(7th Cir. 2010) (stating elements of a deliberate indif-
ference claim with no reference to “cruel and unusual
punishment”).
  Indeed, neither party wanted the words “cruel and
unusual punishment” included in the instructions. Both
sides objected to their inclusion. And the Seventh Circuit
pattern jury instruction does not include those words.
Pattern civil jury instruction 7.12 states, without any
reference to “cruel and unusual punishment”:
    To succeed on his claim of failure to provide
    medical attention, Plaintiff must prove each of the
    following things by a preponderance of the evi-
    dence:
       1.   Plaintiff had a serious medical need;
       2.   Defendant was deliberately indifferent
            to Plaintiff’s serious medical need;
       3.   Defendant’s conduct caused harm to
            Plaintiff.
    ....
No. 10-3687                                              7

The court rejected the parties’ agreement to use an in-
struction based on the pattern instruction. Instead, the
jury was instructed:
   The plaintiff has the burden of proving each of the
   following propositions to recover on his claim
   against a defendant regarding a violation of the
   plaintiff’s Eighth Amendment right to freedom
   from cruel and unusual punishment. . .
   Second, that in so acting the defendant violated
   the plaintiff’s right to be free from cruel and un-
   usual punishment. Specifically, the plaintiff must
   prove that: (a) he had a serious medical need;
   and (b) that the defendant under consideration
   was deliberately indifferent to that need.
  The instruction is puzzling. No mention of “cruel and
unusual punishment” was necessary or wanted by the
parties, yet the instruction told the jury Cotts needed
to prove the defendants violated his “right to be free
from cruel and unusual punishment.” What follows
is also unclear. The defendants contend that the “specif-
ics” are simply an explanation of cruel and unusual
punishment. But a reasonable juror might read the in-
struction as directing that Cotts needed to make an inde-
pendent showing of cruel and unusual punishment
in addition to the two “specifics.” Stating “specifically
the plaintiff must prove” two propositions is not the
same as stating that cruel and unusual punishment
“means” proving the two propositions that follow it.
The use of “specifically” suggests that what follows is
not an explanation of what “cruel and unusual punish-
ment” means; instead, it looks like something else.
8                                             No. 10-3687

  Sometimes other jury instructions can explain with
sufficient clarity any ambiguity in a challenged instruc-
tion. Francis v. Franklin, 471 U.S. 307, 318-19 (1985).
Here, another instruction elaborated on the deliberate
indifference claim’s source in the Eighth Amendment
and the Amendment’s “cruel and unusual punishment”
language, but as in Franklin, this other, more general
instruction did not “dissipate the error in the
challenged . . . instruction.” See id. at 320.
  Indeed, the inclusion, and repeated inclusion, of “cruel
and unusual punishment” in the instructions only had
the potential to confuse the jury. Even if an instruction
were perfectly clear that “cruel and unusual punish-
ment” is not an independent element of a plaintiff’s
deliberate indifference claim, there is good reason that
the phrase should not appear in the jury instructions.
To a lawyer, “cruel and punishment” is a term of art
found in the Constitution’s Eighth Amendment. But to
a lay person, the words “cruel and unusual punish-
ment” can evoke a parade of horribles. Stoning, a
breaking wheel, boiling to death, impalement, water-
boarding, the death penalty—who knows what thoughts
come to mind when hearing the words “cruel and
unusual punishment”? A jury might think that the
conduct needed to approach those levels. And it is par-
ticularly dangerous to inject the concept of “cruel
and unusual punishment” into a case about deliberate
indifference because a juror might think that to prevail
the plaintiff needs to show that the defendants affirma-
tively “punished” him. The defendants here did not
“punish” Cotts in the lay sense of that term. The conten-
No. 10-3687                                                   9

tion in this case, as it is in many similar cases, is that
the defendants were deliberately indifferent to Cotts’s
medical needs—but not as a penalty for something Cotts
had done. To inject the idea of “punishment” into a
deliberate indifference case like this one only makes
the instructions more confusing for the jury. Cf. Miller v.
Neathery, 52 F.3d 634, 638 (7th Cir. 1995) (stating court
should define “ ‘enigmatic terms’ that leave the jury to
speculate on their meaning”).
  We agree with Cotts that the instruction suggests
Cotts needed to make an independent showing of cruel
and unusual punishment (which is wrong under the
law, as proving deliberate indifference to a serious
medical need is enough), and that it is not clear that he
only needed to prove a serious medical need about
which the defendants were deliberately indifferent.
Now certainly a judge is not precluded from giving
the jury instructions which differ from those proposed
by the parties or reflected in the pattern instructions.
See, e.g., Lewis v. City of Chi. Police Dep’t, 590 F.3d 427, 433
(7th Cir. 2009). Judges have a duty to ensure they are
accurately instructing jurors in the law. Alcala, 495 F.3d
at 366. But when a judge varies from the pattern instruc-
tions, he should do so to make things clearer for the
jury, not more confusing. Here, unfortunately, the in-
struction did not clearly state the law to a lay person.
  Cotts also maintains that the elements instruction
wrongly required him to prove he “suffered damage” to
show liability. (The written instructions that each juror
received stated “suffered damage”; orally, the judge
said “suffered damages.”) Cotts objected to this phrasing,
10                                             No. 10-3687

arguing that the law required him to show “harm” but not
“damage” to make the defendants liable. As with “cruel
and unusual punishment,” neither party wanted “dam-
age” in the elements instruction. Seventh Circuit pattern
instruction 7.12, to which the parties agreed, states that
to find the defendants liable, the plaintiff must prove
the defendants “caused harm” to the plaintiff.
  Damages are not an element of liability in a deliberate
indifference claim. See Calhoun v. DeTella, 319 F.3d 936,
941 (7th Cir. 2003) (noting our approval of the award
of nominal damages for Eighth Amendment violations
when prisoners could not establish actual compensable
harm); see also Tyus v. Urban Search Mgmt., 102 F.3d 256,
265 (7th Cir. 1996) (requiring a plaintiff to prove “actual
injury” when it is not an element of the claim was not
harmless error). And in a civil trial, the liability deter-
mination comes first, and only if a jury finds liability
should it consider damages. See, e.g., Thomas v. Cook
Cnty. Sheriff’s Dep’t, 604 F.3d 293, 312 (7th Cir. 2009)
(stating that a verdict form “should not ask a jury to
assess damages before liability”). The two inquiries
are distinct, with the liability inquiry the threshold one.
   On appeal, the defendants maintain that any difference
between “harm” and “damage” is minimal and that no
prejudice resulted from the use of “damage” in the ele-
ments instruction. But the use of “damage(s)” in
the instructions as a whole is confusing and renders
its meaning in the critical elements instruction un-
clear. The elements instruction stated that Cotts had
“the burden of proving each of the following proposi-
No. 10-3687                                              11

tions,” one of which was “that the plaintiff suffered
damage.” The instruction then told the jury:
   [I]f you find from your consideration of all the
   evidence that the plaintiff has failed to prove
   any of these propositions, then your verdict
   should be for the defendant under consideration
   and against the plaintiff.
  So the elements instruction made “damage(s)” a prereq-
uisite for a liability determination. Then other instruc-
tions used “damage(s)” to at times mean something dif-
ferent than a component of liability. Another instruc-
tion, for example, told the jury (our emphasis added):
   If you decide the plaintiff is entitled to damages,
   you must fix the amount of money which will rea-
   sonably and fairly compensate the plaintiff for
   the following element of damage proved by the
   evidence to have resulted from the conduct of
   the defendant(s), taking into consideration the
   nature, extent, and duration of any injury:
   The pain and suffering endured by the plaintiff.
   Whether this element of damage has been proved
   by the evidence is for you to determine.
   If you find in favor of plaintiff, but find that
   the plaintiff has failed to prove compensatory
   damages, you must return a verdict for Plaintiff
   in the amount of one dollar ($1.00).
   If you decide for the defendants on the question
   of liability, you will have no occasion to con-
   sider the question of damages.
12                                            No. 10-3687

The use of the same word—“damage(s)”—in both the
elements instruction and this one, to mean different
things, renders its meaning in the elements instruction
unclear. And the way it is used here only adds to the
confusion. The first sentence here, directing the jury
that if it finds “the plaintiff is entitled to damages” it
must determine the amount of money “for the fol-
lowing element of damage” is difficult for even a lawyer
to understand. (Pattern civil jury instruction 7.23, in
contrast, states: “If you find in favor of Plaintiff, then
you must determine the amount of money that will
fairly compensate Plaintiff for any injury that you find
he sustained as a direct result of . . . .”).
   Reading this instruction in conjunction with the
elements instruction would likely leave a reasonable
juror confused. The last sentence here, for example,
does not make sense when read in conjunction with the
elements instruction: although the last sentence here
says the jury would have no occasion to consider the
question of damages if it ruled for the defendants on
liability, the liability elements instruction explicitly
made part of the inquiry whether Cotts suffered dam-
ages. Like the use of “cruel and unusual punish-
ment,” the inclusion of the term of art “damage” in the
elements instruction made the instruction more con-
fusing, with the result that it did not clearly state
the law for the jury.
  The confusion in the instructions prejudiced Cotts. See
Byrd v. Ill. Dep’t of Pub. Health, 423 F.3d 696, 705 (7th
Cir. 2005) (“If an instruction is so misleading that an
No. 10-3687                                                 13

appellant is prejudiced, reversal is required.”). The er-
roneous instruction went to the elements of Cotts’s
claim. See United States v. Perez, 43 F.3d 1131, 1139 (7th Cir.
1994). The confusion was not clarified by other instruc-
tions. And this was not a slam-dunk victory for the de-
fendants. A reasonable jury could have believed evidence
suggesting that for almost three years, the defendants
refused to repair Cotts’s hernia surgically because
they followed an inflexible policy against surgery for
reducible hernias. They might also have believed that
the fact that Wexford would have to pay for any
surgery impacted the decision not to allow it. In short, a
factfinder could have reasonably concluded that the
defendants “substantially departed from professional
judgment by refusing to authorize surgical repair for
[Cotts’s] painful hernia.” Gonzalez v. Feinerman, 663 F.3d
311, 314 (7th Cir. 2011). A new trial is necessary.


  B. Other Instructions
  Because we are remanding for a new trial, we only
briefly comment on Cotts’s remaining contentions. One
involves the instruction regarding policy. Because Wexford
was a private corporation, Cotts needed to show that
a policy adopted or condoned by Wexford caused him
to receive constitutionally inadequate care. See Minix v.
Canarecci, 597 F.3d 824, 834 (7th Cir. 2010). The written
instructions told the jury:
    A corporation can only act through its officers
    and employees. Any act or omission of an officer
    or employee within the scope of his employment
14                                              No. 10-3687

     and pursuant to the policies of the corporation
     is the act or omission of the corporation.
Orally, the judge added: “Here in this case Wexford
Health Sources, Inc., the corporation, in order for
liability to be established against it, has to have a policy
that would be construed by you as resulting in delib-
erate indifference to a serious medical need.”
  The district court denied Cotts’s request to instruct the
jury that a policy constitutes a “rule or regulation insti-
tuted by Wexford’s directors” or a “decision or policy
statement made by Wexford’s corporate officers,”
and Cotts maintains that the instructions as given im-
properly allowed the jury to believe Wexford could only
be found liable if its employees acted pursuant to a
written policy. The instructions did not specify that a
written policy was necessary to find Wexford liable.
Nonetheless, in formulating instructions on remand,
we invite the district court to consider cases such as
Woodward v. Correctional Medical Services, 368 F.3d 917,
928 (7th Cir. 2004), where we found evidence of an
actual practice, as opposed to a written policy, sufficient
to establish deliberate indifference.
   Similarly, the district court can consider on remand
Cotts’s requests for additional damages instructions
including a specific instruction telling the jury it could
consider “the physical, mental and emotional pain and
suffering” he experienced. (The jury was told it could
consider “[t]he pain and suffering endured by the plain-
tiff.”) As the defendants’ only response on appeal is
that the failure to give the instruction was harmless
No. 10-3687                                          15

because the jury did not reach the question of damages,
and we are remanding for a new trial, the district court
can consider the propriety of giving such an instruc-
tion on remand.


                  III. CONCLUSION
  The judgment of the district court is R EVERSED and
this case is R EMANDED for further proceedings con-
sistent with this opinion. Circuit Rule 36 shall apply.




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