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 debilitating 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 doctors at Stateville Correctional Facility, alleging they failed to 

alleviate his suffering and to enable his recovery from the injury. We heard this case en banc to clarify when a doctor’s rationale for his treatment decisions supports a triable issue as 

to whether that doctor acted with deliberate indifference under the Eighth Amendment. We conclude that even if a doctor 

denies knowing that he was exposing a plaintiff to a substantial 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 Stateville in January 2012 when he heard a loud pop and felt excruciating 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 contract in the foot and calf. Immobilizing the injured foot prevents 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 tendon ruptures in his twenty-year career. As the prison’s medical director, Dr. Carter was in charge of implementing Wexford’s medical policies and procedures, among which was a 

specific treatment protocol for patients with ruptured Achilles 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 treatment.

Dr. Carter’s notes reflect that he thought Petties had an 

Achilles tendon rupture, and that he followed some of Wexford’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 specialist, 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 immobilize 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 received 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 centimeters. 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 Petties 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 director of Stateville by Dr. Saleh Obaisi, another Wexford employee. 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 indifference 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 Petties, 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 received 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 purpose.” Id. at 103.1 To determine if the Eighth Amendment has 

 

1 Our dissenting colleagues suggest that Estelle shields doctors from liability 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 explicitly 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 delaying access to medical care or intentionally interfering with the treatment 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 determining whether the individual defendant was deliberately indifferent 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 determining 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 condition, but they dispute whether in responding to the rupture, 

the defendants acted with deliberate indifference. 

To determine if a prison official acted with deliberate indifference, 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 constitute 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 unjustifiably 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 Amendment. 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. Officials 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 probably harm you, and I did it anyway!” Most cases turn on circumstantial 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 deliberate indifference. Estelle, 429 U.S. at 106. But blatant disregard 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 substantial risk of harm? We must determine what kind of evidence 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 medical care when considering whether that care evidences deliberate indifference to serious medical needs. Cavalieri v. 

Shephard, 321 F.3d 616, 625–26 (7th Cir. 2003). We have identified several circumstances that can be enough to show deliberate 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 understand the various implications of a particular course of treatment. So we have found in those cases where unnecessary risk 

may be imperceptible to a lay person that a medical professional’s treatment decision must be “such a substantial departure from accepted professional judgment, practice, or standards 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 judgment 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 imminence of further harm and the efficacy of available treatments.” Roe v. Elyea, 631 F.3d 843, 859 (7th Cir. 2011). So it can 

be challenging to draw a line between an acceptable difference of opinion (especially because even admitted medical 

malpractice does not automatically give rise to a constitutional violation), and an action that reflects sub-minimal competence2 and crosses the threshold into deliberate indifference. 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 provide circumstantial evidence that a prison health care gatekeeper 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 official 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 community, 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 decision 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 indifference); 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 mistreatment likely to seriously aggravate the prisoner’s condition); 

Kelley v. McGinnis, 899 F.2d 612, 616–17 (7th Cir. 1990) (per curiam). 

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 convenience 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 judgment 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 delaying 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 indifference). Of course, delays are common in the prison setting with 

limited resources, and whether the length of a delay is tolerable 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 sufferer of gastro-esophageal reflux disease with over-the-counter 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 quotation marks omitted), Arnett, 658 F.3d at 752 (medical personnel 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 specialist’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 actionable 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 treatment 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 repeatedly complained of enduring pain with no modifications 

in care, inexplicable delays or departures from common medical standards, or of course, the doctor’s own testimony that 

indicates knowledge of necessary treatment he failed to provide. While evidence of malpractice is not enough for a plaintiff to survive summary judgment on an Eighth Amendment 

claim, nor is a doctor’s claim he did not know any better sufficient to immunize him from liability in every circumstance. 

Otherwise, prison doctors would get a free pass to ignore prisoners’ 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 defendants 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, delayed 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 records, confirm that Dr. Carter’s initial diagnosis of Petties’s injury was an Achilles tear. Dr. Carter also testified that the appropriate treatment for a complete Achilles rupture is to immobilize the ankle, put it in a non-weight bearing status, and 

prescribe anti-inflammatory drugs and passive stretching exercises. 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 injuring 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 consequences—supported his claim that the defendants deliberately refused to 

pursue care they knew he needed. Petties has never argued that his doctors’ 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 Petties.

Together, these pieces of circumstantial evidence support 

a reasonable inference that Dr. Carter knew that failure to immobilize an Achilles rupture would impede Petties’s recovery

and prolong his pain. It is certainly true that Dr. Carter’s decision 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 explained 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 testimony 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 immobilization in writing. A reasonable inference to draw from this 

evidence is that Dr. Carter was aware of the need for immobilizing 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 “constant, 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 suffering 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 patients 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 unaware 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 Petties 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 followed Dr. Puppala’s recommendation to explore surgery as 

an option. But Petties did not produce medical evidence confirming 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 circumstantial 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 decisions 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 summary 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 indifferent 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 exercises 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 specialist recommended physical therapy, and that he did not order 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, because he also testified he did not know whether Petties had 

previously undergone physical therapy at the time that he decided to refuse him physical therapy. And finally, his contention 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 proceedings below, the defendants pursued the additional argument that they were entitled to qualified immunity. But even 

if the defendants preserved this argument, qualified immunity 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 questions of the defendants’ states of mind remain disputed, summary judgment on the basis of qualified immunity is inappropriate. 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 proceedings.
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. Afterreplacing

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.