Calvin Whiting v. Wexford Health Sources, Incorp

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-1647

CALVIN WHITING,

Plaintiff-Appellant,

v.

WEXFORD HEALTH SOURCES, INC.,

and ALFONSO DAVID,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 2917 — Elaine E. Bucklo, Judge.

____________________

ARGUED OCTOBER 26, 2015 — DECIDED OCTOBER 12, 2016

____________________

Before WOOD, Chief Judge, BAUER and SYKES, Circuit

Judges.

SYKES, Circuit Judge. While serving a probation-revocation

sentence in an Illinois prison, Calvin Whiting fell ill with

what turned out to be a rare form of non-Hodgkin’s lym-

phoma. A prison doctor initially diagnosed an infection and

prescribed antibiotics and nonprescription pain relievers. It

2 No. 15-1647

was not until two months later that the doctor ordered a

biopsy and the cancer was discovered.

Whiting filed this lawsuit under 42 U.S.C. § 1983 against

the prison doctor and the prison’s private medical provider

alleging that they were deliberately indifferent to his serious

medical needs during the two months that his cancer went

undiagnosed. The district court granted summary judgment

to both defendants. We affirm.

I. Background

Calvin Whiting violated the terms of his probation on an

Illinois burglary conviction and was sent to the Shawnee

Correctional Center in Vienna, Illinois, in July 2010. Wexford

Health Sources, Inc., provides medical services for inmates

in Illinois prisons. Dr. Alfonso David is the medical director

at Shawnee. On October 15, 2010, Whiting went to the

prison’s medical center seeking treatment for pain in his left

jaw, left ear, and groin; he also discovered nodules develop-

ing in these areas. A nurse examined him and thought he

had an ear infection; she gave him amoxicillin (an antibiotic)

and Motrin.

About a week later Whiting returned to the medical cen-

ter complaining that his pain had worsened and the amoxi-

cillin had given him a rash. He was given Bactrim, a differ-

ent antibiotic, instead. Chest and abdominal x-rays also were

ordered. Dr. David is listed as the prescribing physician for

these orders, but it’s not entirely clear whether he or the

nurse saw Whiting that day.

Over the next few days, Whiting told two different nurs-

es that his pain and the bumps were getting worse. The

nurses gave him Tylenol and scheduled an examination with

No. 15-1647 3

Dr. David. On October 26 Whiting was sick enough to be

admitted to the infirmary. Dr. David saw him the next day.

Dr. David’s observations from the October 27 examina-

tion indicate that Whiting’s pain was continuing (and possi-

bly worsening), his lymph nodes were swollen, and he had

developed a mass in his jaw. Dr. David ordered blood work

and submitted a biopsy request to Wexford’s “Collegial

Review Committee.” This “committee”—just Dr. David

himself and one other physician—denied the biopsy request

on November 1. The two doctors decided to try two different

antibiotics (doxycycline and Augmentin), one after the other,

and proceed with a biopsy if this course of treatment did not

work. Dr. David implemented this treatment plan that same

day. Whiting continued to receive nonprescription pain

medication.

The first few days on the new antibiotic regimen showed

promise: Two nurses reported some improvement in Whit-

ing’s condition. But by November 7 Whiting was reporting

new bumps and increased pain. On November 29 a nurse

observed many more bumps and scheduled another ap-

pointment with Dr. David. On December 2 Dr. David exam-

ined Whiting and resubmitted the biopsy request. It was

approved four days later, and the biopsy was performed on

December 21, almost two full months after Dr. David first

submitted the biopsy request to the “committee.” The results

revealed that Whiting had a rare type of non-Hodgkin’s

lymphoma.

Dr. David referred Whiting to an outside oncologist,

Dr. Mahnaz Lary, who diagnosed Stage IV SLK positive

anaplastic large cell lymphoma, a rare and aggressive form

of the disease. Chemotherapy began in early January 2011.

4 No. 15-1647

In June 2011 Whiting’s lymphoma appeared to be in com-

plete remission, but by August the disease had returned.

Whiting began another round of chemotherapy. In October

2011 he was approved for a stem-cell transplant at Barnes

Jewish Hospital in St. Louis. A scan in December 2011

showed the lymphoma again in remission.

Whiting’s prison sentence ended in January 2012. After

his release he received additional chemotherapy and a stem-

cell transplant at the University of Chicago Medical Center.

A biopsy in June 2012 brought bad news: the lymphoma was

back. Since then Whiting has been receiving palliative

chemotherapy and remains a candidate for another stem-cell

transplant.

Whiting filed this suit against Dr. David and Wexford

alleging that they were deliberately indifferent to his serious

medical needs in violation of the Eighth Amendment. 1 His

claim focuses on the period from late October 2010, when

Dr. David first examined him, and early January 2011, when

chemotherapy began. Whiting argues that the decision to

postpone the biopsy and continue to treat him for an infec-

tion forced him to endure severe pain during this two-month

period.

Both defendants moved for summary judgment.

Dr. David argued that the evidence was insufficient to

support an inference that he acted with the necessary culpa-

ble state of mind. Wexford argued that Whiting failed to

produce evidence showing that his injury was caused by a

policy or custom, a necessary element for liability under

1 The suit named other defendants as well, but Whiting did not pursue

his claims against them.

No. 15-1647 5

Monell v. Department of Social Services, 436 U.S. 658 (1978).

The district judge accepted these arguments and entered

judgment for the defendants.

II. Discussion

We review the court’s order granting summary judgment

de novo, viewing the evidence and drawing all reasonable

inferences in Whiting’s favor. Burton v. Downey, 805 F.3d 776,

783 (7th Cir. 2015). Summary judgment is appropriate if

“there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a). A factual dispute is “genuine” “if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).

A. Dr. David

“[D]eliberate indifference to serious medical needs of

prisoners constitutes the ‘unnecessary and wanton infliction

of pain’ proscribed by the Eighth Amendment.” Estelle v.

Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia,

428 U.S. 153, 173 (1976)) (citation omitted). To prevail on a

deliberate-indifference claim, the plaintiff must prove that he

suffered from “(1) an objectively serious medical condition

to which (2) a state official was deliberately, that is subjec-

tively, indifferent.” Duckworth v. Ahmad, 532 F.3d 675, 679

(7th Cir. 2008). Lymphoma is an objectively serious medical

condition, and Whiting submitted expert testimony that he

would have suffered significantly less pain during Novem-

ber and December of 2010 if a biopsy had been ordered and

chemotherapy begun. As in many deliberate-indifference

cases, the dispute rests on the second element of the claim.

6 No. 15-1647

A prison official is deliberately indifferent only if he

“knows of and disregards an excessive risk to inmate health

or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). The

state-of-mind element is measured subjectively: The defend-

ant must know of facts from which he could infer that a

substantial risk of serious harm exists, and he must actually

draw the inference. Id.; see also Petties v. Carter, No. 14-2674,

2016 WL 4631679, at *3 (7th Cir. Aug. 25, 2016) (en banc)

(“[T]he Supreme Court has instructed us that a plaintiff must

provide evidence that an official actually knew of and disre-

garded a substantial risk of harm.”). The requirement of

subjective awareness tethers the deliberate-indifference

cause of action to the Eighth Amendment’s prohibition of

cruel and unusual punishment; “an inadvertent failure to

provide adequate medical care cannot be said to constitute

‘an unnecessary and wanton infliction of pain.’” Estelle,

429 U.S. at 105 (emphasis added).

When a prison medical professional is accused of provid-

ing inadequate treatment (in contrast to no treatment), evalu-

ating the subjective state-of-mind element can be difficult.

It’s clear that evidence of medical negligence is not enough

to prove deliberate indifference. Id. at 106 (“Medical mal-

practice does not become a constitutional violation merely

because the victim is a prisoner.”); Petties, 2016 WL 4631679,

at *3 (“[P]laintiffs must show more than mere evidence of

malpractice to prove deliberate indifference.”); see also McGee

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

532 F.3d at 679 (“Deliberate indifference is not medical

malpractice; the Eighth Amendment does not codify com-

mon law torts.”); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.

2005) (“[N]either medical malpractice nor a mere disagree-

ment with a doctor’s medical judgment amounts to deliber-

No. 15-1647 7

ate indifference.”). So without more, a mistake in profes-

sional judgment cannot be deliberate indifference.

By definition a treatment decision that’s based

on professional judgment cannot evince delib-

erate indifference because professional judg-

ment implies a choice of what the defendant

believed to be the best course of treatment. A

doctor who claims to have exercised profes-

sional judgment is effectively asserting that he

lacked a sufficiently culpable mental state, and

if no reasonable jury could discredit that claim,

the doctor is entitled to summary judgment.

Zaya v. Sood, No. 15-1470, 2016 WL 4621045, at *3 (7th Cir.

Sept. 6, 2016).

On the other hand, “where evidence exists that the de-

fendant[] knew better than to make the medical decision[]

that [he] did,” then summary judgment is improper and the

claim should be submitted to a jury. Petties, 2016 WL

4631679, at *5. State-of-mind evidence sufficient to create a

jury question might include the obviousness of the risk from

a particular course of medical treatment, id. at *4; the de-

fendant’s persistence in “a course of treatment known to be

ineffective,” id.; or proof that the defendant’s treatment

decision departed so radically from “accepted professional

judgment, practice, or standards” that a jury may reasonably

infer that the decision was not based on professional judg-

ment, id. (quotation marks omitted).

No evidence in this case supports an inference that

Dr. David “knew better” than to pursue the course of treat-

ment that he did. He explained in his deposition that alt-

8 No. 15-1647

hough he considered the possibility of lymphoma, he

thought Whiting had an infection and treated him for that

condition, putting off an invasive biopsy until it was clear

that aggressive antibiotic treatment wasn’t working. Whiting

argues that Dr. David’s decision on November 1 to try two

more antibiotics when the first two were ineffective is suffi-

cient for a jury to infer that the doctor was deliberately

indifferent. But no expert testified that Dr. David’s chosen

course of treatment was a substantial departure from accept-

ed medical judgment, and the decision was not so obviously

wrong that a layperson could draw the required inference

about the doctor’s state of mind without expert testimony.

Our decision in Duckworth is instructive on this point.

There we confronted a claim that two prison physicians

should have ordered a cystoscopy to rule out bladder cancer

as soon as they noticed blood in the plaintiff’s urine. The

first physician didn’t suspect cancer; the second physician

was aware of the cancer risk but thought that the plaintiff

had another condition and pursued a course of treatment

consistent with that diagnosis. 532 F.3d at 680–81. The

plaintiff provided expert testimony from an experienced

urologist that cancer should always be ruled out when a

patient has blood in his urine. Id. at 681. We held that the

expert’s testimony showed only “how a reasonable doctor

would treat Duckworth’s symptoms, but it [did] not shed

any light into [the defendant’s] state of mind.” Id. In other

words, it “just … reiterate[d] the standard for medical

malpractice, which falls short of deliberate indifference.” Id.

The evidence here falls even further short of what’s re-

quired. Whiting doesn’t have any expert testimony indicat-

ing that Dr. David’s infection diagnosis and concomitant

No. 15-1647 9

treatment plan departed from accepted medical practice,

much less substantially so.

Whiting compares his case to Hayes v. Snyder, 546 F.3d

516 (7th Cir. 2008), but the similarities are superficial. The

prison physician in Hayes gave the plaintiff an antibiotic and

Tylenol III for obvious and excruciatingly painful testicular

cysts; he also refused to authorize a referral to a specialist.

Unlike this case, the plaintiff in Hayes produced considerable

evidence showing that the physician’s choice of treatment

was not based on a mere mistake in professional judgment.

For example, the physician—the medical director at the

prison—acknowledged in his deposition that other prison

doctors who saw the plaintiff ordered prescription-strength

pain medication and a referral to a specialist. Id. at 524. The

defendant’s approval was required before these steps could

be taken, but he “refused to give that approval,” asserting an

after-the-fact justification that he didn’t have the proper

paperwork. Id. He also claimed, implausibly, that he

“wouldn’t know which specialist to send [the plaintiff] to”

without more clinical information. Id. at 526. We concluded

on these facts that the evidence was sufficient for a fact

finder to conclude that the doctor was subjectively indiffer-

ent to the plaintiff’s medical needs. Id.

Here, in contrast, the record contains no evidence from

which a jury could infer that Dr. David was subjectively

indifferent to Whiting’s condition—in short, that Dr. David

knew that the additional antibiotics would be ineffectual but

persisted in this course of treatment anyway. Without expert

testimony a lay jury could not infer that because amoxicillin

and Bactrim did not work, it was obvious to Dr. David that

the doxycycline and Augmentin also would fail. To survive

10 No. 15-1647

summary judgment Whiting needed to present evidence

sufficient to show that Dr. David’s decision was “so far

afield of accepted professional standards as to raise the

inference that it was not actually based on a medical judg-

ment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006).

He did not do so. The district court properly granted sum-

mary judgment for Dr. David.

B. Wexford

Whiting’s claim against Wexford meets the same fate.

Wexford is a private corporation, but we’ve held that the

Monell theory of municipal liability applies in § 1983 claims

brought against private companies that act under color of

state law. Shields v. Ill. Dept. of Corr., 746 F.3d 782 (7th Cir.

2014) (noting every circuit court that has addressed the issue

has extended the Monell standard to private corporations

acting under color of state law). To prevail on his Monell

claim, Whiting needs to show that Wexford’s policy, prac-

tice, or custom, caused a constitutional violation. Thomas v.

Cook Cty. Sheriff’s Dep’t, 604 F.3d 294, 303 (7th Cir. 2009). This

requirement can be satisfied by evidence that “an official

with final policy-making authority” acted for the corpora-

tion. Id. That’s the theory Whiting invokes on appeal: He

argues that Dr. David was a final policymaker for Wexford.

But Whiting’s filings in the district court weren’t entirely

clear on this point, so the argument is probably waived.

Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 480 (7th Cir.

2010). Waiver aside, the claim fails on the merits for two

independent reasons.

First, Dr. David did not have final policymaking authori-

ty in the relevant sense. He may have had the final say on

No. 15-1647 11

Whiting’s treatment plan and thus was the final decision-

maker with respect to his care, but that’s not nearly enough

to show he was the final policymaker. See Valentino v. Village of

South Chicago Heights, 575 F.3d 664, 675 (7th Cir. 2009) (not-

ing difference between having decision-making authority for

some decisions and having the responsibility “for establish-

ing final government policy on a particular issue”).

Second, Whiting’s theory of Monell liability is contingent

on a finding that Dr. David, the ostensible final policymaker,

was individually liable for deliberate indifference. Our

decision in Thomas makes clear that Monell liability does not

always require a finding of individual liability. 604 F.3d at

305. But if the plaintiff’s theory of Monell liability rests

entirely on individual liability, as Whiting’s does here,

negating individual liability will automatically preclude a

finding of Monell liability. Id.

AFFIRMED.

12 No. 15-1647

WOOD, Chief Judge, concurring in part and dissenting in

part. Calvin Whiting is suffering from a deadly disease: a rare

form of non-Hodgkin’s lymphoma. The Mayo Clinic’s website

describes this as “a cancer that originates in your lymphatic

system,” and then spreads throughout the body. See Non-

Hodgkin’s lymphoma, Definition, MAYO CLINIC,

http://www.mayoclinic.org/diseases-conditions/non-hodg-

kins-lymphoma/basics/definition/con-20027792 (last visited

Oct. 12, 2016). Whiting fell ill while he was serving a sentence

in Illinois’s Shawnee Correctional Center for a probation vio-

lation, and so of necessity he turned for help to the prison doc-

tors. Dr. Alfonso David, the medical director at Shawnee and

an employee of Wexford Health Sources, Inc., the company

that holds the contract for medical services at that institution,

was Whiting’s treating physician.

It took Dr. David almost two months from Whiting’s first

visit to the infirmary in mid-October 2010 to get approval for

a biopsy of nodules in Whiting’s swollen lymph nodes, even

though he had power to order one if he deemed it an “emer-

gency.” Despite the fact that Whiting presented not only with

pain in his left jaw and his ear, but also with nodules and pain

in his groin, a nurse at Shawnee thought he had an ear or

throat infection and gave him amoxicillin (plus Motrin for his

pain). The amoxicillin caused a rash, and so a few days later

Dr. David switched him to Bactrim and ordered chest and ab-

dominal x-rays. Those results showed enlarged cervical

(neck) nodes and a mass in Whiting’s left jawbone. Whiting

was also complaining of severe pain. It was then that Dr. Da-

vid suggested a biopsy of the nodules to a second colleague,

who vetoed that course. (Defendants describe this as submis-

sion to a “review committee,” but that is a bit grandiose for a

No. 15-1647 13

simple process through which one doctor consults with a sec-

ond and allows the second to override his recommendation.)

During November and December, Dr. David continued

with the fruitless course of antibiotics, although he changed

the particular drugs to doxycycline and Augmentin. In early

December, he again suggested a biopsy to the other colleague.

This time the two agreed to order the biopsy. It was performed

on December 21 and revealed that Whiting had Stage IV SLK

positive anaplastic large cell lymphoma. (A group called the

Lymphoma Research Foundation describes this as a rare type

of aggressive T-cell lymphoma, which can progress rapidly

without treatment. See LYMPHOMA RESEARCH FOUNDATION,

http://www.lymphoma.org/site/pp.asp?c=bkLTKaOQLmK8E

&b=6293639 (last visited Oct. 12, 2016).) Whiting began chem-

otherapy at that point and has continued his battle with can-

cer, cycling between remission and relapse.

Focusing only on the two months between his first visit to

Dr. David and the start of his chemotherapy, Whiting sued

both Dr. David and Wexford, contending that the care he re-

ceived violated his Eighth Amendment right to be free from

cruel and unusual punishment. See Estelle v. Gamble, 429 U.S.

97 (1976). During that period, he contends, he was in severe

pain and his cancer was going untreated. Dr. David knew that

Whiting was suffering and that a biopsy was necessary, yet he

proceeded on a “business as usual” basis. Dr. Nancy Bartlett,

who treated Whiting later at Barnes Jewish Hospital in St.

Louis, described this delay in treatment as “cruel and unu-

sual.” Whiting’s treating oncologist after his release from

Shawnee, Dr. Justin Kline, said much the same thing. Dr. Kline

opined that if chemotherapy had been started right away, it

would have had two desirable effects: alleviation of Whiting’s

14 No. 15-1647

pain and destroying the cancer. He also declared that Whiting

“would not have experienced the pain he did between Octo-

ber 27, 2010, and January 2011” if the biopsy had been per-

formed when Dr. David first mentioned that possibility.

The district court granted summary judgment for both de-

fendants, and my colleagues have voted to affirm. I agree with

them that Whiting’s case against Wexford was properly re-

jected, but, without taking any position on the ultimate out-

come, I would reverse and remand for further proceedings

against Dr. David.

It is well established that a prisoner asserting an Eighth

Amendment claim based on the medical care he received

must show two things: first, that he has a serious medical

need, and second that the defendant was deliberately indif-

ferent—not merely negligent or oblivious—to his needs. Gam-

ble, 429 U.S. at 104; see also Farmer v. Brennan, 511 U.S. 825, 835

(1994). I focus here only on the subjective element of the test,

because all members of this panel agree with the district court

that there was enough evidence to reach a jury on the objec-

tive element. This is the same type of case as the one we con-

sidered in Petties v. Carter, No. 14-2674, 2016 WL 4631679 (7th

Cir. Aug. 25, 2016) (en banc), in which the inmate received

some medical care, but the facts permit more than an inference

of medical malpractice—they permit an inference of deliber-

ate indifference.

The critical point that Petties established is that the furnish-

ing of some care does not automatically defeat an Eighth

Amendment claim (raised through the Fourteenth Amend-

ment for a state prisoner). Instead, as Petties held, it is essential

to “look at the totality of an inmate’s medical care when con-

sidering whether that care evidences deliberate indifference

No. 15-1647 15

to serious medical needs.” Id. at *3. We went on to say that

“[i]f 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.” Id. Ac-

knowledging that the line between (minimally) competent

medical judgment and deliberate indifference can be difficult

to draw, we gave several examples of situations in which a

finding of an Eighth Amendment violation is possible. At

least two of them fit Whiting’s allegations: “[persistence] in a

course of treatment known to be ineffective,” id. at *4, and the

choice of “an easier and less efficacious treatment without ex-

ercising professional judgment,” id. at *5 (internal quotation

marks omitted). We summarized the central point as follows:

[R]epeatedly, 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 re-

alize his treatment decisions (or lack thereof)

could cause serious harm to a plaintiff, a jury is

entitled to weigh that explanation against cer-

tain clues that the doctor did know.

Id.

In my view, the rule most recently reaffirmed in Petties

(dating back to Gamble) governs Whiting’s case. It would be

possible on this record for a jury to conclude that Dr. David

was exercising his medical judgment over the critical period,

even if that judgment was mistaken or even negligent. He saw

16 No. 15-1647

Whiting on several occasions; he tried various antibiotics,

which he says he regarded as conservative responses to Whit-

ing’s symptoms, and the antibiotic treatments at times seemed

to be having some positive effect. He did not perceive Whit-

ing’s situation to be an emergency, and so he did not exercise

his limited authority to order a biopsy on his own. Instead, he

invoked the “Collegial Review Committee” process described

above.

But that is not the only inference that is possible from these

facts. Whiting has brought forth evidence that would permit

a trier of fact to infer deliberate indifference. No one, Dr. Da-

vid included, paid any attention to the fact that nodules were

not limited to Whiting’s neck and face, but instead were also

in his groin. A jury could conclude that Dr. David paid no

heed to the fact that the antibiotics and Motrin he was pre-

scribing for Whiting’s pain were, by Whiting’s account, utterly

ineffective. Had he checked the medical records, he would

have seen that Whiting repeatedly informed Shawnee’s med-

ical unit that he was in extreme pain. In McGowan v. Hulick,

612 F.3d 636 (7th Cir. 2010)—decided before Whiting’s first

complaint about nodules in his left jaw and groin, and accom-

panying pain—we reaffirmed that “[a] delay in treatment

may constitute deliberate indifference if the delay exacer-

bated the injury or unnecessarily prolonged an inmate’s

pain.” Id. at 640 (citing Gamble, 429 U.S. at 104–05); Gayton v.

McCoy, 593 F.3d 610, 619 (7th Cir. 2010); and Edwards v. Snyder,

478 F.3d 827, 832 (7th Cir. 2007). See also Petties, 2016 WL

4631679 at *5; Arnett v. Webster, 658 F.3d 742, 753 (7th Cir.

2011). A delay when the physician recognizes that the condi-

tion may be life-threatening (as Dr. David did, given his initial

request for a biopsy) is even more troublesome. Perhaps if Dr.

No. 15-1647 17

David had tried one or two courses of antibiotics before mov-

ing to more serious measures, this case would be different.

But a jury could find that it was apparent by the time the third

and fourth antibiotics were tried that this course of treatment

was ineffective for both the underlying condition and the

pain.

Finally, the existence of the so-called collegial review

mechanism does not compel summary judgment in favor of

Dr. David. It is, in effect, a device to obtain a second opinion.

As the record presently stands, it is unclear whether the sec-

ond doctor’s “no” automatically trumps the treating physi-

cian’s judgment that a procedure is necessary (a situation that

would undermine a finding of deliberate indifference on the

first doctor’s part), or if the second doctor just has an oppor-

tunity to persuade the first doctor to reconsider his opinion.

The former does not strike me as “collegial,” and the latter is

not something that deserves to be called a “review.” Nothing

reveals whether, or why, Dr. David changed his mind about

the need for a biopsy at the end of October. Taking the facts

and reasonable inferences from them in the light most favor-

able to Whiting, I must assume that Dr. David saw no reason

to invoke his authority to override the second doctor and ob-

tain a biopsy on an urgent basis. A jury would be entitled to

infer deliberate indifference to Whiting’s serious medical

need on the basis of those facts.

Looking at the record as a whole in the light most favora-

ble to Whiting, I conclude that summary judgment in Dr. Da-

vid’s favor should not have been granted. I therefore dissent

to that extent and would order further proceedings on this

part of the case.