Tyrone Petties v. Imhotep Carter , 836 F.3d 722 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2674
TYRONE PETTIES,
Plaintiff-Appellant,
v.
IMHOTEP CARTER and SALEH OBAISI,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 9353 — George M. Marovich, Judge.
____________________
ARGUED APRIL 28, 2015
REARGUED EN BANC DECEMBER 1, 2015
DECIDED AUGUST 23, 2016, AMENDED AUGUST 25, 2016
____________________
Before WOOD, Chief Judge, and POSNER, FLAUM,
EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and
HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. Tyrone Petties suffered a debilitat-
ing rupture in his Achilles tendon, which caused him extreme
2 No. 14-2674
pain and impeded his mobility over the course of three years.
He brought a lawsuit under 42 U.S.C. § 1983 against his doc-
tors at Stateville Correctional Facility, alleging they failed to
alleviate his suffering and to enable his recovery from the in-
jury. We heard this case en banc to clarify when a doctor’s ra-
tionale for his treatment decisions supports a triable issue as
to whether that doctor acted with deliberate indifference un-
der the Eighth Amendment. We conclude that even if a doctor
denies knowing that he was exposing a plaintiff to a substan-
tial risk of serious harm, evidence from which a reasonable
jury could infer a doctor knew he was providing deficient
treatment is sufficient to survive summary judgment. Because
we find that Petties has produced sufficient evidence for a
jury to conclude that the doctors knew the care they were
providing was insufficient, we reverse the district court’s
grant of summary judgment to the defendants.
I. BACKGROUND
Petties was walking up the stairs of his cell house at Stat-
eville in January 2012 when he heard a loud pop and felt ex-
cruciating pain and weakness in his left Achilles tendon. It
was not the first time he had suffered such an injury. In 2010
he suffered a partial rupture in his right Achilles tendon at the
prison which had not fully healed.
An Achilles tendon rupture is a tear in the tendon which
impedes the ability of the foot to point downward, causing
pain and limiting mobility. Walking around on a ruptured
tendon exacerbates the injury, increasing the gap between the
torn edges of a tendon because of the way that muscles con-
tract in the foot and calf. Immobilizing the injured foot pre-
vents stretching of the tear and allows the torn edges of the
tendon to sit together, and scar tissue to form, rejoining the
No. 14-2674 3
edges. When an Achilles rupture is not immobilized, the
stretching apart of the torn tendon edges when the injured
foot hits the ground causes severe pain and weakness.
Petties went to Stateville’s health clinic and eventually saw
Dr. Imhotep Carter, the medical director of Stateville (though
his actual employer was Wexford Health Sources, a private
contractor of medical services to correctional facilities). Before
Petties, Dr. Carter had seen approximately ten Achilles ten-
don ruptures in his twenty-year career. As the prison’s medi-
cal director, Dr. Carter was in charge of implementing Wex-
ford’s medical policies and procedures, among which was a
specific treatment protocol for patients with ruptured Achil-
les tendons. The protocol advised that patients receive a
splint, crutches, and antibiotics if there were lacerations to the
site of injury, and then be sent to a specialist for further treat-
ment.
Dr. Carter’s notes reflect that he thought Petties had an
Achilles tendon rupture, and that he followed some of Wex-
ford’s protocol, but not all of it. He gave Petties crutches, ice,
and Vicodin. He also authorized one week of “lay-in” meals,
which meant that Petties did not have to walk to the cafeteria,
but could eat in his cell. Finally, he referred Petties to a spe-
cialist, but that appointment did not happen for almost six
weeks. In the meantime, Dr. Carter did not provide Petties
with a splint, boot, cast, or other device that would immobi-
lize his foot. About a month later, after Petties reported to the
infirmary that his tendon was “killing him” and keeping him
from climbing stairs, Petties saw Dr. Carter again and re-
ceived a renewed prescription for crutches, pain medication,
lay-in meals, and assignment to a lower bunk to keep pressure
off his foot. But he still did not receive a splint.
4 No. 14-2674
In March 2012, Petties had an MRI taken which showed an
Achilles tendon rupture. There was a gap between the torn
ends of the tendon that measured approximately 4.7 centime-
ters. About a week later, Petties met with Dr. Anuj Puppala,
an orthopedic specialist, who noted that the lack of “any sort
of cast” was potentially creating the gapping at the tendon
rupture site. He recommended an orthopedic boot to prevent
further gapping and to alleviate pain, and gave one to Petties.
Finally, he thought that surgery might be necessary due to the
gapping, and referred Petties to an ankle specialist. When Pet-
ties returned to Stateville, Dr. Carter authorized use of the
boot, along with crutches, ice, and assignment to a lower
bunk. Petties asserts that Dr. Carter said he would not order
surgery because it was too costly.
In July 2012, Petties finally saw an ankle specialist, Dr.
Samuel Chmell, who ordered a second MRI after noting
weakness in Petties’s ankle. Dr. Chmell also ordered physical
therapy, gentle stretching exercises, and follow-up treatment.
In August 2012, Dr. Carter was replaced as the medical direc-
tor of Stateville by Dr. Saleh Obaisi, another Wexford em-
ployee. Dr. Obaisi approved the order for a second MRI, but
did not authorize physical therapy. According to Petties, he
also said that surgery was too expensive.
That September, Petties had his second MRI, which
showed a partial tear in his tendon, indicating some healing.
But he continued to complain of pain, and Dr. Obaisi gave him
Tylenol, approved a low bunk permit, and continued his use
of the boot. Dr. Obaisi renewed the low bunk permit and use
of the boot in November, and again the following June. Petties
experienced pain, soreness and stiffness as late as March 2014,
over two years after the injury.
No. 14-2674 5
In November 2012, Petties filed a lawsuit under 42 U.S.C.
§ 1983 against Dr. Carter and Dr. Obaisi for deliberate indif-
ference in violation of the Eighth Amendment. The district
court granted summary judgment to Dr. Carter and Dr.
Obaisi. Petties appeals.
II. ANALYSIS
We review the district court’s grant of summary judgment
de novo, viewing the record in the light most favorable to Pet-
ties, and drawing all inferences in his favor. Pagal v. TIN Inc.,
695 F.3d 622, 624 (7th Cir. 2012).
“The Constitution does not mandate comfortable prisons,
but neither does it permit inhumane ones.” Farmer v. Brennan,
511 U.S. 825, 832 (1994) (internal citations and quotation
marks omitted). Every claim by a prisoner that he has not re-
ceived adequate medical treatment is not a violation of the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 105 (1976).
But the Eighth Amendment safeguards the prisoner against a
lack of medical care that “may result in pain and suffering
which no one suggests would serve any penological pur-
pose.” Id. at 103. 1 To determine if the Eighth Amendment has
1 Our dissenting colleagues suggest that Estelle shields doctors from lia-
bility if they provide palliative care to prisoners. Unless a doctor refuses
to provide care or leaves the inmate worse off than before, the dissent
would have us draw the legal conclusion that the prison doctor did not
intentionally disregard a prisoner’s serious medical needs. But Estelle ex-
plicitly held that a violation of the Eighth Amendment can be established
whether “the indifference is manifested by prison doctors in their response
to the prisoner's needs or by prison guards in intentionally denying or de-
laying access to medical care or intentionally interfering with the treat-
ment once prescribed. Regardless of how evidenced, deliberate indifference
to a prisoner's serious illness or injury states a cause of action under
§ 1983.” 429 U.S. 97, 104–05 (emphasis added). The dissent collapses these
distinct avenues to proving deliberate indifference into one—any response
6 No. 14-2674
been violated in the prison medical context, we perform a
two-step analysis, first examining whether a plaintiff suffered
from an objectively serious medical condition, and then deter-
mining whether the individual defendant was deliberately in-
different to that condition. Farmer, 511 U.S. at 834; see also
Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010).
In evaluating an Eighth Amendment claim, we start by de-
termining if the medical condition the plaintiff suffered was
objectively serious. Farmer, 511 U.S. at 834; see also Walker v.
Peters, 233 F.3d 494, 498 (7th Cir. 2000). Here, the parties agree
that an Achilles tendon rupture is an objectively serious con-
dition, but they dispute whether in responding to the rupture,
the defendants acted with deliberate indifference.
To determine if a prison official acted with deliberate in-
difference, we look into his or her subjective state of mind.
Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996) (citing Farmer,
511 U.S. at 842). For a prison official’s acts or omissions to con-
stitute deliberate indifference, a plaintiff does not need to
show that the official intended harm or believed that harm
would occur. Id. at 992. But showing mere negligence is not
enough. Estelle, 429 U.S. at 106 (“Medical malpractice does not
become a constitutional violation merely because the victim
is a prisoner.”); McGee v. Adams, 721 F.3d 474, 481 (7th Cir.
2013) (“Deliberate indifference is not medical malpractice.”).
Even objective recklessness—failing to act in the face of an un-
justifiably high risk that is so obvious that it should be
known—is insufficient to make out a claim. Farmer, 511 U.S.
at 836–38. Instead, the Supreme Court has instructed us that a
by a physician, so long as it is not harmful, satisfies the Eighth Amend-
ment. But that is not the holding of Estelle, and we decline to make such a
leap here.
No. 14-2674 7
plaintiff must provide evidence that an official actually knew
of and disregarded a substantial risk of harm. Id. at 837. Offi-
cials can avoid liability by proving they were unaware even
of an obvious risk to inmate health or safety. Id. at 844.
The difficulty is that except in the most egregious cases,
plaintiffs generally lack direct evidence of actual knowledge.
Rarely if ever will an official declare, “I knew this would prob-
ably harm you, and I did it anyway!” Most cases turn on cir-
cumstantial evidence, often originating in a doctor’s failure to
conform to basic standards of care. While evidence of medical
malpractice often forms the basis of a deliberate indifference
claim, the Supreme Court has determined that plaintiffs must
show more than mere evidence of malpractice to prove delib-
erate indifference. Estelle, 429 U.S. at 106. But blatant disre-
gard for medical standards could support a finding of mere
medical malpractice, or it could rise to the level of deliberate
indifference, depending on the circumstances. And that is the
question we are faced with today—how bad does an inmate’s
care have to be to create a reasonable inference that a doctor
did not just slip up, but was aware of, and disregarded, a sub-
stantial risk of harm? We must determine what kind of evi-
dence is adequate for a jury to draw a reasonable inference
that a prison official acted with deliberate indifference.
We start this inquiry by examining our existing precedent.
As an initial matter, we look at the totality of an inmate’s med-
ical care when considering whether that care evidences delib-
erate indifference to serious medical needs. Cavalieri v.
Shephard, 321 F.3d 616, 625–26 (7th Cir. 2003). We have identi-
fied several circumstances that can be enough to show delib-
erate indifference. First, and most obvious, is a prison official’s
decision to ignore a request for medical assistance. Estelle, 429
8 No. 14-2674
U.S. at 104–05. But an inmate is not required to show that he
was literally ignored by prison staff to demonstrate deliberate
indifference. Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000).
If a risk from a particular course of medical treatment (or lack
thereof) is obvious enough, a factfinder can infer that a prison
official knew about it and disregarded it. Norfleet v. Webster,
439 F.3d 392, 396 (7th Cir. 2006); Cole v. Fromm, 94 F.3d 254, 260
(7th Cir. 1996).
In the medical context, of course, obviousness of a risk can
be obscured by the need for specialized expertise to under-
stand the various implications of a particular course of treat-
ment. So we have found in those cases where unnecessary risk
may be imperceptible to a lay person that a medical profes-
sional’s treatment decision must be “such a substantial depar-
ture from accepted professional judgment, practice, or stand-
ards as to demonstrate that the person responsible did not
base the decision on such a judgment.” Cole, 94 F.3d at 261–62;
see also Collignon v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir.
1998) (“A plaintiff can show that the professional disregarded
the need only if the professional’s subjective response was so
inadequate that it demonstrated an absence of professional
judgment, that is, no minimally competent professional
would have so responded under those circumstances.”). By
contrast, evidence that some medical professionals would
have chosen a different course of treatment is insufficient to
make out a constitutional claim. Steele v. Choi, 82 F.3d 175, 179
(7th Cir. 1996).
Even among the medical community, the permissible
bounds of competent medical judgment are not always clear,
particularly because “it is implicit in the professional judg-
ment standard itself…that inmate medical care decisions
No. 14-2674 9
must be fact-based with respect to the particular inmate, the
severity and stage of his condition, the likelihood and immi-
nence of further harm and the efficacy of available treat-
ments.” Roe v. Elyea, 631 F.3d 843, 859 (7th Cir. 2011). So it can
be challenging to draw a line between an acceptable differ-
ence of opinion (especially because even admitted medical
malpractice does not automatically give rise to a constitu-
tional violation), and an action that reflects sub-minimal com-
petence 2 and crosses the threshold into deliberate indiffer-
ence. One hint of such a departure is when a doctor refuses to
take instructions from a specialist. Arnett v. Webster, 658 F.3d
742, 753 (7th Cir. 2011); Jones v. Simek, 193 F.3d 485, 490 (7th
Cir. 1999). Another is when he or she fails to follow an existing
protocol. “While published requirements for health care do
not create constitutional rights, such protocols certainly pro-
vide circumstantial evidence that a prison health care gate-
keeper knew of a substantial risk of serious harm.” Mata v.
Saiz, 427 F.3d 745, 757 (10th Cir. 2005).
Another situation that might establish a departure from
minimally competent medical judgment is where a prison of-
ficial persists in a course of treatment known to be ineffective.
Walker, 233 F.3d at 499 (citations omitted). For example, if
2 Our colleagues take issue with our repeated references to the competence
of medical professionals, suggesting we are injecting state malpractice
standards into the constitutional test for deliberate indifference. But we do
not suggest that incompetent doctors violate the Constitution. We simply
note that a medical decision that has no support in the medical commu-
nity, along with a suspect rationale provided for making it, can support a
jury finding that a doctor knew his decision created a serious risk to an
inmate’s health. To hold otherwise would mean that any treatment deci-
sion a doctor made, regardless of whether it had any scientific basis,
would be immune from scrutiny.
10 No. 14-2674
knowing a patient faces a serious risk of appendicitis, the
prison official gives the patient an aspirin and sends him back
to his cell, a jury could find deliberate indifference even
though the prisoner received some treatment. Sherrod, 223
F.3d at 612; see also Greeno v. Daley, 414 F.3d 645, 655 (7th Cir.
2005) (continuing to treat severe vomiting with antacids over
three years created material fact issue of deliberate indiffer-
ence); Snipes v. Detella, 95 F.3d 586, 592 (7th Cir. 1996) (holding
Eighth Amendment claim may exist if medical treatment is so
blatantly inappropriate as to evidence intentional mistreat-
ment likely to seriously aggravate the prisoner’s condition);
Kelley v. McGinnis, 899 F.2d 612, 616–17 (7th Cir. 1990) (per cu-
riam).
If a prison doctor chooses an “easier and less efficacious
treatment” without exercising professional judgment, such a
decision can also constitute deliberate indifference. Estelle, 429
U.S. at 104 n.10; Conley v. Birch, 796 F.3d 742, 747 (7th Cir. 2015)
(material fact issue whether provision of only painkillers and
ice to an inmate suffering from suspected fracture constituted
deliberate indifference). While the cost of treatment is a factor
in determining what constitutes adequate, minimum-level
care, medical personnel cannot simply resort to an easier
course of treatment that they know is ineffective. Johnson, 433
F.3d at 1013; Roe, 631 F.3d at 863 (although administrative con-
venience and cost may be permissible factors for correctional
systems to consider, the Constitution is violated when they
are considered to the exclusion of reasonable medical judg-
ment about inmate health).
Yet another type of evidence that can support an inference
of deliberate indifference is an inexplicable delay in treatment
which serves no penological interest. Grieveson v. Anderson,
No. 14-2674 11
538 F.3d 763, 779 (7th Cir. 2008) (guards could be liable for de-
laying treatment of broken nose for a day and half); Edwards
v. Snyder, 478 F.3d 827, 830–31 (7th Cir. 2007) (a plaintiff who
painfully dislocated his finger and was needlessly denied
treatment for two days stated a claim for deliberate indiffer-
ence). Of course, delays are common in the prison setting with
limited resources, and whether the length of a delay is tolera-
ble depends on the seriousness of the condition and the ease
of providing treatment. Compare Miller v. Campanella, 794 F.3d
878, 880 (7th Cir. 2015) (given extreme ease of supplying suf-
ferer of gastro-esophageal reflux disease with over-the-coun-
ter pills, failing to do so for two months created fact question
over deliberate indifference), Berry, 604 F.3d at 441 (finding
refusal to refer patient to a dentist actionable because “a basic
dental examination is not an expensive or unconventional
treatment, nor is it esoteric or experimental”) (internal quota-
tion marks omitted), Arnett, 658 F.3d at 752 (medical person-
nel could not stand idly by for more than ten months while
patient’s rheumatoid arthritis progressively worsened), Simek,
193 F.3d at 490 (viable claim where doctor delayed scheduling
appointment with specialist and then failed to follow special-
ist’s advice, while inmate’s condition worsened), Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009)
(state employees could be liable for four-day delay where
prisoner complained his intravenous therapy was causing
him pain), with Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.
1997) (no valid claim for six-day delay in treating a mild cyst
infection). To show that a delay in providing treatment is ac-
tionable under the Eighth Amendment, a plaintiff must also
provide independent evidence that the delay exacerbated the
injury or unnecessarily prolonged pain. Williams v. Liefer, 491
F.3d 710, 716 (7th Cir. 2007) (delay actionable where medical
12 No. 14-2674
records showed it unnecessarily prolonged plaintiff’s pain
and high blood pressure); Gil v. Reed, 381 F.3d 649, 662 (7th
Cir. 2004) (hours of needless suffering can constitute harm).
These cases bear a few notable commonalities. Most of
them involve treatment, sometimes over an extended period
of time. But repeatedly, we have rejected the notion that the
provision of some care means the doctor provided medical
treatment which meets the basic requirements of the Eighth
Amendment. Rather, the context surrounding a doctor’s treat-
ment decision can sometimes override his claimed ignorance
of the risks stemming from that decision. When a doctor says
he did not realize his treatment decisions (or lack thereof)
could cause serious harm to a plaintiff, a jury is entitled to
weigh that explanation against certain clues that the doctor
did know. Those context clues might include the existence of
documents the doctor regularly consulted which advised
against his course of treatment, evidence that the patient re-
peatedly complained of enduring pain with no modifications
in care, inexplicable delays or departures from common med-
ical standards, or of course, the doctor’s own testimony that
indicates knowledge of necessary treatment he failed to pro-
vide. While evidence of malpractice is not enough for a plain-
tiff to survive summary judgment on an Eighth Amendment
claim, nor is a doctor’s claim he did not know any better suf-
ficient to immunize him from liability in every circumstance.
Otherwise, prison doctors would get a free pass to ignore pris-
oners’ medical needs by hiding behind the precedent that
medical malpractice is not actionable under the Eighth
Amendment. Prisoners are not entitled to state-of-the art
medical treatment. But where evidence exists that the defend-
ants knew better than to make the medical decisions that they
No. 14-2674 13
did, a jury should decide whether or not the defendants were
actually ignorant to risk of the harm that they caused.
We now turn our attention to Petties’s claims against his
doctors.
A. Material Factual Dispute Exists as to Whether Dr.
Carter Was Deliberately Indifferent
Petties’s principal claims against Dr. Carter are that he
acted with deliberate indifference to his injury when he failed
to immobilize Petties’s ruptured tendon for six weeks, de-
layed Petties’s appointment with a specialist, and refused to
order surgery to repair the tendon. 3
Dr. Carter’s deposition, as well as Stateville’s medical rec-
ords, confirm that Dr. Carter’s initial diagnosis of Petties’s in-
jury was an Achilles tear. Dr. Carter also testified that the ap-
propriate treatment for a complete Achilles rupture is to im-
mobilize the ankle, put it in a non-weight bearing status, and
prescribe anti-inflammatory drugs and passive stretching ex-
ercises. He explained the purpose of immobilization, stating,
“in the acute phase of healing, you are generating an immune
system response in the body,” and when asked if keeping the
tendon in one place enables this healing process to go forward
favorably, he replied, “Correct. And if you’re continuously in-
juring it, it hinders that process.” He also testified that for
3 We reject the dissent’s characterization of Petties’s claims against both of
his doctors as a challenge to the quality of his medical care. Rather, Petties
argued that his doctors’ treatment decisions—and their harmful conse-
quences—supported his claim that the defendants deliberately refused to
pursue care they knew he needed. Petties has never argued that his doc-
tors’ poor care by itself violated the Eighth Amendment.
14 No. 14-2674
both partial and complete Achilles ruptures, he would always
immobilize the tendon.
Dr. Carter’s opinion was consistent with the deposition
testimony of Petties’s orthopedic specialist, Dr. Puppala, who
testified that he would always immobilize a ruptured Achilles
tendon, unless the injury had an open sore that needed to be
addressed first. It was also consistent with the testimony of
Dr. Chmell, the ankle specialist who treated Petties after Dr.
Carter had left Stateville. He testified that immobilization is
essential to the healing of an Achilles tendon, and that healing
without immobilization is “possible but not very likely.” 4 And
finally, Wexford’s own protocol, which Dr. Carter testified he
was responsible for implementing, stated that the primary
course of treatment for an Achilles rupture included a splint.
Dr. Carter also testified he was not aware of any shortage of
splints at Stateville during the time that he was treating Pet-
ties.
Together, these pieces of circumstantial evidence support
a reasonable inference that Dr. Carter knew that failure to im-
mobilize an Achilles rupture would impede Petties’s recovery
and prolong his pain. It is certainly true that Dr. Carter’s deci-
sion not to immobilize Petties’s ankle could have been an
oversight, or a fundamental misunderstanding of the proper
course of treatment. Some of his testimony suggests that he
believed crutches served the same purpose as a boot. But that
testimony conflicts with other parts of his deposition that ex-
plained the distinct purpose of immobilization, which is not
4 We are puzzled by the dissent’s proposition that the care Petties received
did not worsen his condition because his health eventually improved. We
do not ascribe to the view that the eventual resolution of a long-ignored
medical issue establishes compliance with the Eighth Amendment.
No. 14-2674 15
to prevent bearing weight on the injured foot, but to keep the
ruptured tendon in one place. It also conflicts with the testi-
mony of the other doctors who treated Petties. A jury could
also find suspicious that Dr. Carter did not provide the boot
until an outside doctor documented the importance of immo-
bilization in writing. A reasonable inference to draw from this
evidence is that Dr. Carter was aware of the need for immobi-
lizing a ruptured tendon, but simply decided not to until he
came under scrutiny. Also, a jury could reasonably conclude
that Dr. Carter’s decision caused substantial harm—Petties’s
affidavit stated that without a splint, he had nothing to keep
his ankle from moving around, which made him feel “con-
stant, severe pain” whenever he got up to walk, and made
sleeping difficult.
Besides Dr. Carter’s failure to immobilize his foot, Petties
also claims that Dr. Carter was responsible for the six-week
delay in seeing Dr. Puppala to confirm Petties’s diagnosis,
which is when he finally received a boot. As an initial matter,
Petties has provided corroborating medical evidence that the
delay had a detrimental effect on his condition through Dr.
Puppala’s treatment notes, which indicate Petties was suffer-
ing pain and gapping at the rupture site due to the lack of
immobilization. This finding is consistent with Petties’s own
testimony that he was in constant and severe pain while he
waited to see a specialist.
Dr. Carter argues that the delay was attributable to prison
lock-downs, which barred visits to outside specialists unless
he issued an emergency override order which allowed pa-
tients to receive emergency care. But immobilization could
have alleviated Petties’s pain while he waited, so this explana-
16 No. 14-2674
tion does not resolve Dr. Carter’s testimony that he was una-
ware of any shortage of splints at Stateville during the six
weeks that Petties suffered severe pain while waiting to see
Dr. Puppala. It also does not explain why Dr. Carter did not
view Petties’s situation as an “emergency” as compared with
other serious injuries. The harm stemming from the delay in
receiving the boot would have been avoided by sending Pet-
ties to the emergency room so he could get an MRI. And the
harm from the delay in seeing a specialist would have been
mitigated by splinting Petties’s foot while security issues were
resolved. The delay of both, without a clear justification for
either, dooms Dr. Carter’s argument that Petties’s suffering
was unavoidable. On this record, whether the delay was the
result of negligence or deliberate indifference is a question for
the jury to decide.
Finally, Petties argues that Dr. Carter should have fol-
lowed Dr. Puppala’s recommendation to explore surgery as
an option. But Petties did not produce medical evidence con-
firming that he would have benefited from surgery, and when
he visited Dr. Chmell in July 2012, his tendon showed signs of
improvement. However, Petties’s contention that Dr. Carter
said surgery would be “too expensive” is a piece of circum-
stantial evidence that a jury could view as supporting his
other claims. If a jury believes that Dr. Carter cited cost as a
reason for refusing one form of treatment, then it would be
reasonable to infer that Dr. Carter made other medical deci-
sions in Petties’s case — failing to splint his foot, not issuing
an emergency override order so he could see a specialist —
that were dictated by cost, administrative convenience, or
both, rather than medical judgment.
No. 14-2674 17
Petties has provided sufficient evidence to survive sum-
mary judgment on his § 1983 claims against Dr. Carter.
B. Material Factual Dispute Exists as to Whether Dr.
Obaisi Was Deliberately Indifferent
Petties also argues that Dr. Obaisi was deliberately indif-
ferent when he refused to order physical therapy after Dr.
Chmell ordered it. Dr. Obaisi responds that Petties did not
need a physical therapist because he already knew which ex-
ercises to use from a prior Achilles injury. He also argues that
Petties could have walked on his injured ankle to strengthen
it.
The problem with Dr. Obaisi’s arguments is that they are
totally at odds with the evidence in this case. He testified that
he always follows the advice of specialists, that Petties’s spe-
cialist recommended physical therapy, and that he did not or-
der physical therapy for Petties. To justify this questionable
decision, he states that Petties knew what to do based on prior
physical therapy. This is clearly a post-hoc rationalization, be-
cause he also testified he did not know whether Petties had
previously undergone physical therapy at the time that he de-
cided to refuse him physical therapy. And finally, his conten-
tion that walking on an injury is the equivalent of physical
therapy is unsupported by any medical evidence, and strains
even a lay person’s understanding of how to treat an injury.
Professional judgment is needed to determine whether, when
and how much exertion will heal rather than aggravate the
injury. And a reasonable jury could find leaving a patient to
make this determination by himself carried an impermissible
and unjustifiable risk of pain and prolonged recovery. At the
very least, Petties has the right for a jury to hear Dr. Obaisi’s
justifications for his treatment decisions (or lack thereof) and
18 No. 14-2674
to determine if Dr. Obaisi was deliberately indifferent, rather
than simply incompetent, in treating his injury.
C. Qualified Immunity Inappropriate at Summary
Judgment Stage
While the district court did not reach the issue, in the pro-
ceedings below, the defendants pursued the additional argu-
ment that they were entitled to qualified immunity. But even
if the defendants preserved this argument, qualified immun-
ity does not apply to private medical personnel in prisons.
Shields v. Illinois Dep’t of Corrections, 746 F.3d 782, 794 (7th Cir.
2014). Even if the Wexford employees were entitled in theory
to qualified immunity, it could not be granted at this point. If
a jury finds that Dr. Carter and Dr. Obaisi knew that the
course of treatment they were pursuing was inadequate to
meet Petties’s serious medical needs, such conduct violates
clearly established law under the Eighth Amendment. See
Farmer, 511 U.S. at 837. Given that the threshold factual ques-
tions of the defendants’ states of mind remain disputed, sum-
mary judgment on the basis of qualified immunity is inappro-
priate. See DuFour-Dowell v. Cogger, 152 F.3d 678, 680 (7th Cir.
1998).
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s
grant of summary judgment and REMAND for further pro-
ceedings.
No. 14‐2674  19
EASTERBROOK, Circuit Judge, joined by FLAUM and KANNE,
Circuit Judges, dissenting. My colleagues take it as established
that the Constitution entitled Petties to an orthopedic boot, or
some other means to immobilize his foot, immediately after
his injury. They remand for a trial at which a jury must deter‐
mine whether the defendants were deliberately indifferent to
the pain his ruptured Achilles tendon caused. This approach
effectively bypasses one of the two issues that matter to any
claim under the Cruel and Unusual Punishments Clause: first
there must be a cruel and unusual punishment, and only then
does it matter whether the defendant acted with the mental
state  necessary  for  liability  in  damages.  See,  e.g.,  Helling  v.
McKinney, 509 U.S. 25 (1993). A court should begin with the
conduct issue and turn to mental states only if the behavior
was objectively cruel and unusual. And Estelle v. Gamble, 429
U.S. 97 (1976), the Supreme Court’s sole decision addressing
the question whether palliative medical treatment (pain relief
without  an  effort  at  cure)  violates  the  Eighth  Amendment,
holds that palliation suffices even if the care is woefully defi‐
cient.
To understand the Supreme Court’s conclusion that medi‐
cal malpractice is a problem under state law rather than the
Constitution, it helps to start with the facts of Estelle, which
may be found in the Fifth Circuit’s opinion, Gamble v. Estelle,
516 F.2d 937 (5th Cir. 1975), as well as the Supreme Court’s.
Gamble alleged that a 600‐pound bale had fallen on him and
injured  his  back,  leaving  him  in  pain  so  severe  that  he  fre‐
quently  fainted  (his  complaint  called  the  episodes  “blank‐
outs”). He visited the prison infirmary and received medicine
designed to dull the pain. When he said that this did not work,
and that the pain and blackouts were continuing, the prison
gave him more of the same medicine. When he said that his
20  No. 14‐2674
pain prevented him from working, he was treated as a shirker
and thrown into solitary confinement. Although the prison’s
medical staff stuck to ineffective medication, it did nothing to
find out what kind of injury Gamble had suffered and how
the problem might be fixed.
The Fifth Circuit ruled that Gamble had established a con‐
stitutional claim, because “the State has totally failed to pro‐
vide adequate treatment of [his] condition. Again and again, as
the  complaint  makes  clear,  the  only  medication  prescribed
was to relieve the pain, not to cure the injury; indeed, the exact
nature of the back injury remains unknown.” 516 F.2d at 941
(emphasis added). The Fifth Circuit thought that the Consti‐
tution requires not only palliation but also a medically com‐
petent effort to cure, starting with an x‐ray, a diagnostic pro‐
cedure that the prison had not employed.
The reader of today’s majority opinion would suppose that
the  Supreme  Court  affirmed  the  Fifth  Circuit’s  demand  for
competent care. But that’s not what happened. The Supreme
Court reversed and held that palliation satisfies the Constitu‐
tion, even if the prison’s medical staff does not try to deter‐
mine  how  pain  is  being  caused and  what  might  be  done  to
cure  it.  That  some care  was  given  was  enough.  The  Justices
said that deliberate indifference to a prisoner’s pain violates
the  Constitution  if  it  leads  the  staff  to  do  nothing,  but  that
medical  care  meets  the  constitutional  standard.  Gamble  re‐
ceived care. He received wretched care, but the Court held that
a claim based on deficient care depends on state medical‐mal‐
practice law. 429 U.S. at 107 & n.15. The Justices disapproved
the  Fifth  Circuit’s  conclusion  that  the  Constitution  entitles
prisoners to “adequate” care.
No. 14‐2674  21
Our initial question therefore ought to be: Did the defend‐
ants provide Petties with medical care? That question is easily
answered.  Petties  concedes  that  he  received  medical  care—
quite a lot of it. The majority opinion outlines the basics. In
January 2012 Dr. Imhotep Carter correctly diagnosed a rup‐
tured Achilles tendon and gave Petties crutches, ice, and Vi‐
codin (a pain‐reducing drug). He referred Petties to a special‐
ist. In March 2012 an MRI exam confirmed Carter’s diagnosis.
Dr. Anuj Puppala, an orthopedist, gave Petties an orthopedic
boot to reduce motion of the foot (in relation to the tendon)
when he walked. Carter authorized the use of the boot in the
prison, assigned Petties to a lower bunk, and  continued the
ice and drug treatments. In July 2012 Carter referred Petties to
Dr.  Samuel  Chmell,  an  ankle  specialist  who  recommended
physical therapy, stretching, and another MRI. After replacing
Carter as Stateville’s medical director, Dr. Saleh Obaisi contin‐
ued the course of treatment that Petties was receiving, includ‐
ing use of the boot. The second MRI, which Obaisi approved,
showed partial healing.
Petties maintains that Carter and Obaisi should have done
more—that Carter should have provided an orthopedic boot
in January 2012 rather than waiting until Petties saw Puppala
in  March,  and  should  have  authorized  surgery;  that  Obaisi
should have authorized physical therapy in addition to order‐
ing  another  MRI  and continuing  the  treatment  already  pro‐
vided  (the  boot,  the  lower  bunk,  and  so  on).  Nonetheless,
there can be no question that Petties received more, and bet‐
ter,  medical  care  than  Gamble  received.  Yet  Gamble  lost  on
the pleadings.
Estelle  holds  that  a  claim  of  deficient  medical  care  must
proceed under state law rather than the Constitution. When
22  No. 14‐2674
the prison  provides no care for a serious medical condition,
that counts as cruel and unusual punishment if the physicians
or other responsible actors are deliberately indifferent to the
condition. (Farmer v. Brennan, 511 U.S. 825 (1994), supplies the
Court’s definition of “deliberate indifference”.) Estelle recog‐
nized one more potential category: harmful interventions. 429
U.S. at 104 & n.10. But Petties does not contend that the care
he received from Carter and Obaisi made his condition worse,
compared with no care at all.
Notes 10 and 12 of Estelle suggest a potential way to dis‐
tinguish  malpractice  from  a  violation  of  the  Constitution:
whether the prison’s staff exercised medical judgment. Petties
does not pursue this possibility; he does not deny that the de‐
fendants exercised medical judgment. Instead he insists that
they exercised bad medical judgment, leading to inferior care.
And Estelle holds that a claim of poor care must be classified
under the law of medical malpractice. (Petties complains that
Carter and Obaisi deemed surgery and rehabilitative therapy
too  expensive,  but  asking  whether  a  potential  treatment  is
cost‐justified is part of professional judgment. Outside of pris‐
ons, solvent patients and their insurers, as well as physicians,
routinely consider whether a particular drug or medical pro‐
cedure is worth the price.)
At  least  three  circuits  ask  whether  the  prisoner  received
some treatment, rather than whether the treatment was infe‐
rior  (even  grossly  deficient).  See,  e.g.,  Inmates  of  Allegheny
County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979); Durmer v.
O’Carroll, 991 F.2d 64, 68–69 (3d Cir. 1993); Self v. Crum, 439
F.3d 1227, 1230–33 (10th Cir. 2006) (discussing other cases in
the circuit); Farmer v. Moritsugu, 163 F.3d 610, 614–16 (D.C. Cir.
1998). Today’s decision is incompatible with the approach of
No. 14‐2674  23
those circuits, though it has support in decisions of the Ninth
Circuit. See, e.g., Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012);
Hamilton v. Endell, 981 F.2d 1062, 1066–67 (9th Cir. 1992). The
First Circuit may have an intra‐circuit conflict. Compare Perry
v. Roy,  782 F.3d 73  (1st Cir.  2015), with  Feeney  v.  Correctional
Medical Services, Inc., 464 F.3d 158 (1st Cir. 2006). Still other cir‐
cuits are hard to classify.
My colleagues say that prisoners are entitled to relief un‐
der  the  Eighth  Amendment  when  prison  physicians  do  not
employ  “competent  medical  judgment”  (opinion  at  8)  or
“minimally  competent  medical  judgment”  (id.  at  9).  That
tracks  state  tort  law  and  is  incompatible  with  Estelle.  Other
phrases in the opinion, such as “professional judgment” (id.
at 10 and 17) and “reasonable medical judgment” (id. at 10)
also seem to be proxies for the law of medical malpractice and
equally at odds with Estelle.
And if we were authorized to find a “competent medical
judgment” standard in the Constitution, why should we want
to federalize the law of medical malpractice? Prisoners such
as  Petties  have  a  tort  remedy  under  state  law.  Carter  and
Obaisi were employed by Wexford rather than the state. They
owe prisoners the same duties as any physician owes to pri‐
vate patients and are subject to the same remedies under Illi‐
nois law. See Jinkins v. Lee, 209 Ill. 2d 320, 336 (2004). Even phy‐
sicians employed by the state are subject to the normal rules
of  tort  law.  See  745  ILCS  10/6‐106(d);  Moss  v.  Miller,  254  Ill.
App. 3d 174, 181–82 (1993). When prison physicians are em‐
ployed  by  the  state,  inmates  have  an  extra  remedy  by  suit
against the state itself, see 745 ILCS 5/1; 705 ILCS 505/8(d), just
as inmates injured by medical malpractice in federal prisons
can use the Federal Tort Claims Act. Perhaps prisoners hope
24  No. 14‐2674
that  constitutional  claims  will  produce  awards  of  attorneys’
fees under 42 U.S.C. §1988(b), while Illinois requires plaintiffs
to bear their own fees, but §1988 is not a good reason to con‐
stitutionalize tort law. And federal law comes with complica‐
tions, such as qualified immunity and the deliberate‐indiffer‐
ence standard, missing from state law. Estelle told the courts
of  appeals  to  relegate  bad‐treatment  situations  to  state  law,
and we should carry out its approach.