Tyrone Petties v. Imhotep Carter

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 — DECIDED JULY 30, 2015

____________________

Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.

PER CURIAM. Tyrone Petties, an Illinois prisoner, claims in

this suit under 42 U.S.C. § 1983 that successive medical di-

rectors at Stateville Correctional Center violated the Eighth

Amendment by failing to provide adequate medical care for

his torn Achilles tendon. Petties appeals the district court’s

grant of summary judgment for the doctors. We conclude

that, on this record, a jury could not reasonably find that the

2 No. 14-2674

doctors’ treatment of Petties’s ankle rose to the level of a

constitutional violation, and we affirm.

Background

In January 2012 Petties was climbing stairs when he felt a

sudden “pop” and extreme pain in his left ankle. He went

immediately to the prison infirmary, where the examining

physician noted tenderness and abnormal reflex in the left

Achilles tendon and observed that Petties could not bear

weight on that ankle. The physician, who is not a defendant

in this suit, prescribed Vicodin and crutches. He also author-

ized a week of “meals lay-in” so that Petties could eat in his

cell rather than walk to the cafeteria.

That same day the prison’s medical director, Dr. Imho-

tep Carter, noted in the medical file that Petties in fact had

suffered an “Achilles tendon rupture.” Dr. Carter, an em-

ployee of Wexford Health Sources (and one of the defendant

physicians) modified his colleague’s treatment instructions

by directing that Petties be scheduled for an MRI and exam-

ination by an orthopedist. He characterized these additional

steps as “urgent.”

Prison lockdowns during the following week resulted in

cancelation of three appointments at the infirmary. By the

time Petties was next seen, eight days had passed since his

injury, and apparently he thought he could bear weight on

his left foot. That was the understanding of the examining

physician, who noted in the medical file that Petties “be-

lieves he can bear weight.” Petties insists that, at the time, he

was experiencing severe pain when he put weight on his left

foot, but he does not dispute that the examining physician

read the situation differently.

No. 14-2674 3

During the weeks after his injury, Petties continued to

feel pain even when he used the crutches. He next was seen

in the infirmary in February 2012, three-and-a-half weeks

after his injury. Petties complained to an infirmary worker

that his Achilles tendon was “killing” him and keeping him

from climbing stairs because of the pain. The next day, on

February 14, 2012, Dr. Carter examined him and noted that

the Achilles tendon was shortened and swollen. He extend-

ed the prescription for Vicodin for six weeks, directed Petties

to continue using crutches, reauthorized him to have a low

bunk and “medical lay in” for two months, and told him to

avoid stairs and the gym.

On March 6, 2012, Petties was taken offsite for the MRI

ordered by Dr. Carter. That diagnostic confirmed a “com-

plete Achilles tendon rupture.” The next week Petties again

was taken offsite for examination by Dr. Anuj Puppala, an

orthopedist. He opined that the absence of “any sort of cast”

to immobilize Petties’s torn Achilles tendon was “contrib-

uting to his pain and likely contributing” to the 2 cm gap in

the ruptured tendon. Dr. Puppala gave Petties an orthopedic

boot that would function like a cast to immobilize his ankle.

The doctor also recommended continued use of crutches and

referred Petties to a foot and ankle specialist. A doctor at

Stateville promptly approved use of the orthopedic boot for

three months, and another infirmary physician increased the

strength of the Vicodin dose prescribed for Petties.

Petties continued to be seen at the infirmary until his ap-

pointment with the foot and ankle specialist. A note in his

medical file from April 4, 2012, says that Petties was wearing

the boot but waiting on special support shoes. On April 10

he was wearing the boot and walking with a cane. In May a

4 No. 14-2674

doctor renewed his allowance for a low bunk, crutches, and

orthopedic boot until August. The prison’s medical staff also

repeatedly renewed the Vicodin prescription—at the end of

April, in May, and in June. Petties’s permit for one crutch

and the orthopedic boot was extended until December of

that year.

Petties was examined by the foot and ankle specialist,

Dr. Samuel Chmell, in July 2012. Dr. Chmell apparently had

treated Petties before in 2010 when he ruptured the Achilles

tendon in his right ankle. Dr. Chmell did not observe evi-

dence of “tenderness with range of motion” but did see

signs of decreased ankle strength. He recommended that

Petties continue limiting his physical activity, undergo a sec-

ond MRI to assess the progress of his healing, and receive

physical therapy at least twice per week. In August 2012 an-

other Wexford employee, Dr. Saleh Obaisi, replaced

Dr. Carter as medical director at Stateville. Dr. Obaisi (the

second of the defendant physicians) already had been work-

ing weekends at the prison, and had approved the MRI rec-

ommended by Dr. Chmell. That second MRI was performed

in September 2012, and showed a partial Achilles tear.

A few weeks after Dr. Obaisi’s promotion to medical di-

rector, he examined Petties. His notes from his August ex-

amination indicate that Petties had not been using his

crutches and wanted to return them. During that examina-

tion Dr. Obaisi told Petties that physical therapy would not

be ordered. The next month Petties was using one crutch

when he was seen by a nurse at the infirmary. Near the end

of September 2012, Dr. Obaisi noted that Petties had “not

seen ortho yet” and prescribed Tylenol.

No. 14-2674 5

Petties next saw Dr. Obaisi in November 2012, about 10

months after his injury. The doctor observed that Petties still

was experiencing pain and authorized continued assignment

to a low bunk, soft-soled gym shoes, and another year’s use

of the orthopedic boot. From December 2012 to April 2013,

other medical staff also tended to Petties on five occasions.

On April 16, 2013, Petties visited the infirmary; he com-

plained that he was not getting pain medication or the shoes

ordered by Dr. Obaisi, but the practitioner who saw him

noted that he had received pain medication and shoes from

Dr. Obaisi the previous October. In June 2013 he was given

additional pain medication. In his declaration submitted at

summary judgment, Petties says that as of early 2014 he still

was experiencing “serious pain, soreness, and stiffness” in

his left ankle.

Petties filed this suit in November 2012, initially against

Wexford as well as Drs. Carter and Obaisi. The district court

recruited a lawyer, who later amended the complaint to

drop Wexford and allege that only the two doctors were de-

liberately indifferent to Petties’s torn Achilles tendon. Petties

principally argued that Dr. Carter was deliberately indiffer-

ent to his torn Achilles tendon by failing to immobilize his

ankle with a boot or cast immediately after the injury, and

Dr. Obaisi acted with deliberate indifference to the injury

when he did not order physical therapy despite Dr. Chmell’s

recommendation.

The district court granted the doctors’ motion for sum-

mary judgment. Dr. Carter’s decision to wait eight weeks

before immobilizing Petties’s ankle in a cast or boot could

not have constituted deliberate indifference, the court rea-

soned, because Petties’s several physicians in and out of

6 No. 14-2674

prison held different opinions about whether a boot or cast

had been necessary. The court further concluded that a jury

could not reasonably find that Dr. Obaisi’s rejection of the

recommendation for physical therapy had constituted delib-

erate indifference because, according to the judge, Petties

had learned physical therapy exercises a year earlier (when

he ruptured his right Achilles tendon) and could have per-

formed those same exercises on his own.

Analysis

On appeal Petties first argues that the district court

wrongly attributed to a difference of medical opinion

Dr. Carter’s choice not to immediately immobilize his ankle

despite Wexford’s treatment protocol. Petties says that the

delay between his injury and when his ankle was immobi-

lized left him in “constant, severe pain” and worsened the

tendon rupture. Prolonged and unnecessary pain resulting

from a significant delay in effective medical treatment may

support a claim of deliberate indifference. Berry v. Peterman,

604 F.3d 435, 441 (7th Cir. 2010); Grieveson v. Anderson, 538

F.3d 763, 779 (7th Cir. 2008); Edwards v. Snyder, 478 F.3d 827,

832 (7th Cir. 2007). But disagreement with a doctor’s medical

judgment is not enough to prove deliberate indifference. Ber-

ry, 604 F.3d at 441; Johnson v. Doughty, 433 F.3d 1001, 1013

(7th Cir. 2006); Norfleet v. Webster, 439 F.3d 392, 397 (7th Cir.

2006). Even admitted medical malpractice is not sufficient to

show that a doctor acted with deliberate indifference. McGee

v. Adams, 721 F.3d 474, 481 (7th Cir. 2013); Norfleet, 439 F.3d

at 397. Rather, the inmate must show that the doctor’s treat-

ment strayed so far from accepted professional standards

that a jury could infer the doctor acted with deliberate indif-

ference. See McGee, 721 F.3d at 481; Roe v. Elyea, 631 F.3d 843,

No. 14-2674 7

857 (7th Cir. 2011); Duckworth v. Ahmad, 532 F.3d 675, 679

(7th Cir. 2008).

We agree with the district court that, on this record, a ju-

ry could not reasonably conclude that Dr. Carter was delib-

erately indifferent by waiting to give Petties a splint or boot.

Immediately after Petties’s injury, a prison doctor exempted

him from walking to meals and prescribed pain medication,

an anti-inflammatory, and crutches. The walking exemption

and prescriptions were renewed repeatedly. And that same

day, Dr. Carter—who had treated about 10 ruptured Achil-

les tendons previously—ordered an urgent referral for an

MRI and an appointment with an orthopedist. Although

Dr. Carter acknowledged that treatment for a complete

Achilles tear typically includes immobilizing the ankle to

minimize putting weight on the ankle, he also explained that

he did not employ a splint initially because he believed that

giving Petties crutches and minimizing his time on his feet

was an effective treatment plan. Additionally, Dr. Puppala,

the orthopedist who examined Petties after his MRI in

March 2012, testified that although he would almost always

immobilize a patient’s ankle in a cast or boot, a torn Achilles

tendon “would probably heal” without one. This meaningful

and ongoing treatment of Petties’s injury at Stateville and

with outside medical providers—which Dr. Carter over-

saw—could not constitute deliberate indifference.

Petties next argues that Dr. Obaisi was deliberately indif-

ferent when he declined to order physical therapy despite

the ankle specialist’s recommendation in July 2012 for week-

ly physical therapy. Doctors are entitled to deference in

treatment decisions unless no minimally competent profes-

sional would have acted similarly. See McGee, 721 F.3d

8 No. 14-2674

at 481; King v. Kramer, 680 F.3d 1013, 1018–19 (7th Cir. 2012);

Roe, 631 F.3d at 857. And although not following the advice

of a specialist may constitute deliberate indifference, see Gil

v. Reed, 381 F.3d 649, 663–64 (7th Cir. 2004); Jones v. Simek,

193 F.3d 485, 490 (7th Cir. 1999), whether a doctor is deliber-

ately indifferent depends on the totality of the inmate’s care,

see Walker v. Peters, 233 F.3d 494, 501 (7th Cir. 2000); Dunigan

ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th Cir.

1999); Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir. 1997).

Petties was treated immediately and continuously after he

tore his Achilles tendon. He received crutches, regular pain

medication, and later a boot to immobilize his left ankle, and

was permitted to minimize time on his feet by eating his

meals in his cell and not attending yard and gym time. Doc-

tors at the prison (including Dr. Obaisi) repeatedly renewed

those treatments after Dr. Obaisi took over as medical direc-

tor. And Dr. Chmell, the specialist who had recommended

physical therapy, testified that when he examined Petties in

July 2012, the ankle had diminished strength but a full range

of motion, and the tendon was partially healed, even with-

out receiving any physical therapy before then. Petties’s evi-

dence does not show that Dr. Obaisi’s treatment was so con-

trary to accepted professional standards that a jury could in-

fer that it was not based on medical judgment. See Duck-

worth, 532 F.3d at 680; Norfleet, 439 F.3d at 396.

Accordingly, the judgment of the district court is

AFFIRMED.

No. 14-2674 9

WILLIAMS, Circuit Judge, dissenting. “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 purpose.”

Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th

Cir. 2009). To succeed on an Eighth Amendment claim based

on deficient medical care, a plaintiff must show that he

suffered from an objectively serious medical condition and

that each individual defendant was deliberately indifferent

to that condition. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir.

2010). “Deliberate indifference occurs when a defendant

realizes that a substantial risk of serious harm to the prisoner

exists, but the defendant disregards that risk.” Id. It is

intentional or reckless conduct, not mere negligence. Id.

(citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).

There is no dispute that Petties’s Achilles tendon rupture

was objectively serious. So the only issue in this appeal is

whether Petties has presented enough evidence from which

a reasonable jury could conclude that Dr. Carter and Dr.

Obaisi acted with deliberate indifference toward his serious

injury. Viewing the facts in the light most favorable to Petties

and drawing all reasonable inferences in his favor as we

must, Pagel v. TIN Inc., 695 F.3d 622, 624 (7th Cir. 2012), in my

view, he has.

A. Dr. Carter

On this record a jury could reasonably conclude that Dr.

Carter was deliberately indifferent by failing to immobilize

Petties’s ankle despite his employer’s protocol for a ruptured

Achilles tendon and his testimony that immobilization was

the appropriate treatment. On January 19, 2012, the day of

Petties’s injury, Dr. Carter concluded that Petties suffered an

10 No. 14-2674

“Achilles tendon rupture.” However, he did not immobilize

Petties’s ankle with a splint (or by any other means), even

though Wexford’s written protocols direct that treatment for

a ruptured Achilles tendon is “splint, crutches.” Petties met

with other medical personnel in the following weeks,

including a meeting with Dr. Carter on February 14, but Dr.

Carter failed to immobilize his ankle then and Petties did not

receive any type of immobilization until March 15, nearly

two months after his injury. Evidence that a medical

provider failed to abide by an established treatment protocol

is evidence from which a jury could infer deliberate

indifference. See Mata v. Saiz, 427 F.3d 745, 757–58 (10th Cir.

2005) (reversing summary judgment where nurse’s violation

of published health-care requirements was circumstantial

evidence that she knew of substantial risk of harm); see also

Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 542–43 (6th Cir.

2008) (affirming denial of qualified immunity for paramedic

whose failure to follow established treatment protocols

could constitute deliberate indifference). Wexford’s protocol

is explicit that a physician attending to a ruptured Achilles

tendon employ “splint, crutches, antibiotics if laceration”

and also make an “urgent” referral for further treatment. Dr.

Carter admitted having seen about ten ruptured Achilles

tendons previously, and he himself recognized and

diagnosed a “rupture” the same day that Petties was injured.

He ordered an urgent referral for an MRI and an

appointment with an orthopedist, yet during this lawsuit he

has never explained why he disregarded the directive to

“splint,” or provide a splint for, Petties’s ankle.

Failing to immobilize the ankle caused Petties to suffer

unnecessary pain during this eight-week period. Dr. Puppala

testified that making Petties walk on his left ankle without

No. 14-2674 11

any form of cast until March had added to his pain and

likely widened the gap in his torn tendon. Furthermore,

Petties himself testified that he was in extreme pain during

those eight weeks. He said he felt “constant, severe pain”

even when he used crutches and the pain was so bad he had

difficulty sleeping. Two weeks after the injury, on January

27, at an appointment, Petties says that he could not bear

weight on his left foot without severe pain. 1 On February 13,

a provider who saw him in the clinic noted in Petties’s chart

that he had complained that his Achilles tendon was

“killing” and he was unable to walk up stairs because of the

pain. It is widely known that failing to immobilize an

Achilles tendon rupture results in extreme pain and no one

has put forward any medical justification for causing Petties

this unnecessary additional pain. Petties has presented

sufficient evidence to create a material issue of fact about

whether Carter intentionally or with reckless disregard

denied effective treatment. This deliberate indifference to

Petties’s prolonged, unnecessary pain can itself be the basis

for an Eighth Amendment claim. See Smith v. Knox Cnty. Jail,

666 F.3d 1037, 1039–40 (7th Cir. 2012). Prolonged and

unnecessary pain resulting from a significant delay in

effective treatment may support a claim of deliberate

indifference. Berry, 604 F.3d at 441. “A delay in treating non-

life-threatening but painful conditions may constitute

deliberate indifference if the delay exacerbated the injury or

unnecessarily prolonged an inmate’s pain.” Arnett v. Webster,

658 F.3d 742, 753 (7th Cir. 2011). We have said that the length

1A doctor wrote in his medical records that Petties “believes he can bear

weight,” but Petties says that that statement is false. At this stage, we

must view the facts in the light most favorable to Petties and draw all

reasonable inferences in his favor.

12 No. 14-2674

of the delay that is tolerable depends on the seriousness of

the condition and the ease of providing treatment. Id.; see also

Williams v. Liefer, 491 F.3d 710, 716 (7th Cir. 2007) (affirming

denial of motion for judgment as a matter of law because “a

reasonable jury could have concluded from the medical

records that the delay unnecessarily prolonged and

exacerbated [the plaintiff’s] pain and unnecessarily

prolonged” the plaintiff’s serious health condition). Dr.

Carter testified that he never recalled splints not being

available at the prison. But he still failed to splint Petties’s

ankle at any point during those two months. The length of

delay here is intolerable given the seriousness of Petties’s

injury and the ease of providing the immobilization at the

prison. See Arnett, 658 F.3d at 753.

In my view, the majority wrongly finds that “a jury could

not reasonably conclude that Dr. Carter was deliberately

indifferent by waiting to give Petties a splint or boot.” As

I’ve discussed, there is ample evidence from which a

reasonable jury could conclude Dr. Carter was deliberately

indifferent. 2 In drawing its conclusion, the majority

minimizes Dr. Carter’s inaction in the face of protocol (and

medical consensus that proper treatment of an Achilles

tendon rupture includes immediate immobilization) on

several grounds, though none are persuasive. For one, it

follows the district court in seizing on a statement from Dr.

Puppala’s deposition that a torn Achilles tendon “would

probably heal” without a boot. But Dr. Puppala testified that

he would always immobilize a patient’s ankle unless he

2 Obviously, there is evidence from which a reasonable jury could

conclude otherwise, but our task at this stage is just to determine

whether a reasonable jury could rule in Petties’s favor.

No. 14-2674 13

could not because of an open sore. And more importantly,

Dr. Puppala never suggested that failing to immobilize a

ruptured Achilles tendon would not needlessly cause

heightened pain even if the tendon would “probably” still

heal eventually. A delay in treatment need not aggravate an

inmate’s condition in order to be actionable; pain alone is

sufficient to establish a valid Eighth Amendment claim. See

Smith, 666 F.3d at 1039–40 (“[The plaintiff] contends that

even if his condition did not worsen from the delay,

deliberate indifference to prolonged, unnecessary pain can

itself be the basis for an Eighth Amendment claim. This, too,

is correct.”).

Second, the majority mentions that Petties was exempted

from walking to meals, and prescribed pain medication, an

anti-inflammatory, and crutches, and that Dr. Carter ordered

an urgent referral for an MRI and an appointment with an

orthopedist. It finds that “[t]his meaningful and ongoing

treatment” of Petties’s injury could not constitute deliberate

indifference. First, I note that the referral tells us nothing

about whether Dr. Carter was deliberately indifferent to

Petties’s pain during the seven-week period before Petties

was scheduled to receive that MRI. Immobilization was a

simple step that Dr. Carter could have taken to ease Petties’s

pain during the interim. Also, Dr. Carter could have

expedited the referral so that Petties would not have to wait

seven weeks, but he did not.

More importantly, the “receipt of some medical care does

not automatically defeat a claim of deliberate indifference.”

Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007). A

prisoner is not required to show that a doctor completely

ignored his pain, but instead a doctor’s choice of the easier

14 No. 14-2674

and less efficacious treatment for an objectively serious

medical condition can amount to deliberate indifference.

Berry, 604 F.3d at 441. Deliberate indifference may occur

where a prison official, having knowledge of a significant

risk to inmate health or safety, administers “blatantly

inappropriate” medical treatment. Edwards, 478 F.3d at 831.

Although Petties received some medical attention, he is not

required to show that he was “literally ignored” to prevail

on his Eighth Amendment claim. Sherrod v. Lingle, 223 F.3d

605, 611 (7th Cir. 2000). This is because “[i]f all the Eighth

Amendment required was that prison officials provide some

‘immediate and ongoing attention,’ they could shield

themselves from liability (and save considerable resources)

by shuttling sick or injured inmates to perfunctory medical

appointments wherein no meaningful treatment is

dispensed.” Perez v. Fenoglio, No. 12-3084, 2015 WL 4092294

at *4 (7th Cir. July 7, 2015). But “the responsibilities imposed

by the Constitution are not so easily avoided.” Id. In many

ways, this case is similar to Berry where we reversed

summary judgment for the prison official defendants where

a doctor and nurse gave an inmate pain medication and

other directions for minimizing pain, but would not provide

the more effective treatment, a referral to a dentist.

Immobilization was needed to prevent Petties from

experiencing severe pain whenever the ankle moved. The

ineffective treatment provided here should not shield Dr.

Carter from, at a minimum, facing a jury to determine

whether he acted with deliberate indifference.

Third, the majority suggests that Dr. Carter’s failure to

immobilize Petties’s ankle was somehow a difference of

medical judgment, without using such words. It notes that

Dr. Carter “did not employ a splint initially because he

No. 14-2674 15

believed that giving Petties crutches and minimizing his

time on his feet was an effective treatment plan.” But this

testimony is at odds with Dr. Carter’s own testimony that the

appropriate treatment for a complete Achilles tear is to

immobilize the ankle with a boot and also ensure that the

patient was not putting weight on the ankle. A failure to

exercise medical judgment when making a treatment

decision violates the Eighth Amendment. Roe v. Elyea, 631

F.3d 843, 863 (7th Cir. 2011). Also, when a doctor’s decision is

so far from accepted professional judgment, practice, or

standards that it demonstrates that his decision was not

based on medical judgment, deliberate indifference may be

inferred. See McGee v. Adams, 721 F.3d 474, 481 (7th Cir.

2013); King v. Kramer, 680 F.3d 1013, 1018–19 (7th Cir. 2012);

Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006). A jury

could conclude that the treatment provided here was

blatantly inappropriate and so far afield from accepted

professional judgment that it did not represent a medical

decision at all.

Whether a prison official had the requisite knowledge of

a substantial risk is a fact question that can be demonstrated

by drawing an inference from circumstantial evidence.

Walker v. Peters, 233 F.3d 494, 498 (7th Cir. 2000). “For

example, a fact finder could conclude that the official was

aware of the substantial risk from the very fact that the risk

was obvious.” Id. at 498–99 (citing Farmer v. Brennan, 511 U.S.

825, 842 (1994)). Where symptoms plainly call for a

particular medical treatment (for example, the leg is broken,

so it must be set), a doctor’s deliberate decision not to

furnish the treatment is actionable. Id. at 499. Here, a

reasonable jury could conclude that Petties’s symptoms

plainly called for a particular medical treatment. That is

16 No. 14-2674

because every doctor that testified in this case has agreed

that a ruptured Achilles tendon should be immobilized.

Wexford’s own protocol called for immobilization. And

crutches do not prevent the ankle from moving, which

causes pain.

Dr. Carter’s testimony that he did not employ a splint

initially because he believed that giving Petties crutches and

minimizing his time on his feet was an effective treatment

plan conflicts with his own testimony that treatment for an

Achilles rupture typically includes immobilizing the ankle

and Dr. Puppala’s and Dr. Chmell’s testimony that they

would always immobilize (absent circumstances that are not

present here). A reasonable jury could conclude that Dr.

Carter’s statement that he believed crutches was an effective

treatment plan was a post hoc rationalization, not a

statement that Dr. Carter exercised medical judgment at the

time he treated Petties, to not provide a splint or boot. And

Dr. Carter did not recall whether he referenced Wexford’s

treatment guidelines at the time he treated Petties. By giving

no explanation at all for not following the protocol, Dr.

Carter has opened himself up to a jury finding that he

deliberately failed to treat Petties in such a way that he

would likely aggravate Petties’s injury.

B. Dr. Obaisi

I believe that construing the record in the light most

favorable to Petties, a jury could find that Dr. Obaisi was

deliberately indifferent when he refused to order physical

therapy despite the ankle specialist’s recommendation that

Petties receive physical therapy two to three times a week.

Failure to follow the advice of a specialist or treating

physician may constitute deliberate indifference. See Gil v.

No. 14-2674 17

Reed, 381 F.3d 649, 663–64 (7th Cir. 2004) (allegation that

prison doctor prescribed medication to inmate that specialist

warned against gave rise to genuine issue of material fact

precluding summary judgment, even though the doctor had

an explanation for his alternate course of action); Jones v.

Simek, 193 F.3d 485, 491 (7th Cir. 1999) (fact that doctor

denied inmate medical care for a period of time and

thereafter refused to provide specific treatments that were

order for the inmate was sufficient to survive motion for

summary judgment). Dr. Obaisi has never said in this

litigation that he disagreed with Dr. Chmell’s

recommendation. Rather, at his deposition, he first asserted

that authorizing physical therapy would have been

unnecessary because Petties could do “the same exercises”

he learned when he tore his right Achilles tendon a couple

years earlier. Yet, when pressed, Dr. Obaisi was forced to

admit that he did not even know if Petties had received

physical therapy for his previous injury. Worse, he could not

recall instructing Petties to perform physical therapy

exercise appropriate for a torn Achilles tendon and the

medical file does not reflect that such a discussion took

place. Failing, without medical justification, to follow Dr.

Chmell’s recommendation, despite the availability of a

physical therapist at the prison, could constitute deliberate

indifference. See Gil, 381 F.3d at 663.

The majority does not attempt to justify Dr. Obaisi’s

decision not to provide physical therapy for Petties

(presumably because it is obvious that there is no

justification). Instead, it focuses on the totality of Petties’s

care and concludes that Dr. Obaisi’s “treatment” was not so

contrary to accepted professional standards that a jury could

infer that it was not based on medical judgment. First, much

18 No. 14-2674

of the “care” the majority cites occurred before Dr. Obaisi

became the medical director, so it is unclear how these acts

could be considered part of Dr. Obaisi’s “treatment.” Also, as

mentioned, an inmate does not need to show that he was

literally ignored. If the treatment provided was perfunctory

and less efficacious, then a decision to provide such

treatment can still constitute deliberate indifference. Berry,

604 F.3d at 441. Our totality of the inmate’s care analysis

shows that where an inmate complains of a few isolated

incidents of delay or neglect during a course of treatment,

but the record as a whole shows that the defendant did not

disregard a serious medical risk because he provided

meaningful treatment throughout the inmate’s recovery, then

the defendant has not acted with deliberate indifference. See

Walker, 233 F.3d at 501; Dunigan ex rel. Nyman v. Winnebago

Cnty., 165 F.3d 587, 591 (7th Cir. 1999); Gutierrez v. Peters, 111

F.3d 1364, 1375 (7th Cir. 1997). That is not the case here.

Permitting Petties to use a lower bunk and avoid walking

around the prison cannot excuse a failure to provide actual

medical treatment for the injury. In July 2012—over two

years after Petties’s injury—Petties’s tendon had only

partially healed and he had diminished strength. In

November 2012, Dr. Obaisi noted in Petties’s medical file that

he was in chronic pain from the injury. These are not signs of

a reasonable provision of total care. His injury should likely

have been completely healed much sooner and he should

not have been in pain nearly three years afterwards.

I think it is worth examining Dr. Obaisi’s testimony just

to see how readily a reasonable jury could infer that Dr.

Obaisi was deliberately indifferent to Petties’s injury. When

determining whether a doctor’s treatment plan is

appropriate, the court must focus on what the doctor knew

No. 14-2674 19

at the time of treatment. Duckworth v. Ahmad, 532 F.3d 675,

680 (7th Cir. 2008). Deliberate indifference can be inferred

from a physician’s treatment decision which is so far afield

from accepted professional standards as to raise the

inference that it was not actually based on a medical

judgment. See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.

2006). Dr. Obaisi knew Petties had a serious ankle injury and

that a specialist had recommended physical therapy. At first,

Dr. Obaisi claimed that he did not think physical therapy

was necessary because Petties’s could perform exercises on

his own, but Dr. Obaisi had no apparent knowledge of

Petties’s prior ankle injury or any information regarding

prior physical therapy. Therefore, when making the decision

not to follow Dr. Chmell’s recommendation, Dr. Obaisi was

not basing it on a belief that Petties could perform physical

therapy exercises on his own. It was not a medical judgment

at all. This suspicious testimony could be used to infer

deliberate indifference. Then, seeking another justification

since his reliance on prior physical therapy was lacking

foundation, Dr. Obaisi claimed that he believed walking was

physical therapy for a ruptured Achilles tendon. This claim

is absurd. It is also not consistent with the medical judgment

of the specialist, Dr. Chmell, and Dr. Obaisi testified that he

would always defer to the decisions of specialists (yet

inexplicably chose not to in Petties’s case):

Counsel: As far as the care and treatment that should

be rendered to an Achilles tendon injury you would

defer to an orthopedic surgeon?

Dr. Obaisi: Always.

Counsel: And as far as the care and treatment that

was suggested or ordered from orthopedic surgeons

in this case specifically, you would defer to them?

20 No. 14-2674

Dr. Obaisi: Yes.

Common sense dictates that walking on a ruptured Achilles

tendon is not the equivalent of twice- or thrice-weekly

physical therapy. It falls into this category of treatment

decisions so far afield from accepted professional standards

that deliberate indifference can be inferred. Failing to

exercise medical judgment when making a treatment

decision violates the Eighth Amendment. Roe, 631 F.3d at

863. Dr. Obaisi’s decision to not provide Petties with physical

therapy was a failure to exercise medical judgment. And the

totality of Petties’s care cannot excuse this neglect because

the totality itself evinced deliberate indifference.

I would remand this case for further proceedings on

Petties’s claims that Dr. Carter was deliberately indifferent

by failing to immobilize Petties’s ankle and that Dr. Obaisi

was deliberately indifferent by not following Dr. Chmell’s

recommendation for physical therapy. For these reasons, I

dissent.