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

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.