### In the 

# United States Court of Appeals

For the Seventh Circuit

____________________ No. 14

- 2674

T YRONE P ETTIES

, Plaintiff

- Appellant

,

v.

I MHOTEP C ARTER and S ALEH O BAISI

, Defendant s

- Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 9353

— George M. Marovich

, Judge

.

____________________

A RGUED A PRIL 28

, 2015

R EARGUED E N B ANC D ECEMBER 1, 2015

D ECIDED A UGUST 23, 2016

, A MENDED A UGUST 25

, 2016

____________________

Before W OOD

, Chief Judge

, and P OSNER

, F LAUM

, E ASTERBROOK

, K ANNE

, R OVNER

, W ILLIAMS

, S YKES

, and

H AMILTON

, Circuit Judges

.

W ILLIAMS

, Circuit Judge

. Tyrone Petties suffered a debilitating rupture in his Achilles tendon, which caused him extreme2 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 Facilit y, 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

. W e 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 de ficient
treatment is sufficient to survive summary judgment. Because

we find that Petties ha s 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 s ta irs 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 h ad suffere d such an injury. I n 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

pai n 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 t he foot and calf. I mmobilizing the injured foot prevents stretching of t he tear and allows the torn edges of the

tendo n to sit together, and scar tissue to f orm, rejoining theNo. 14

- 2674 3

edges . When an Achilles rupt ure is not immobilized, the
stretching apart of the torn tendon edges when the injured
foot hits the ground cause s severe pa in 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 t en Ach ille s tendon ruptures in his twenty

- year career . As the prison’s medical director, Dr. Carter was in charge of implementing Wexford’s medical policie s and proced ures, among which was a
specific treatment protocol for patients with ruptured Achill es tendons. The protocol advised that patients receive a
spli n t, crut ches, and antibiotics if there we re lacerations to the

site of injury, and then be sent to a sp ecialist for further treatment.

Dr. Carter’s notes reflec t 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 w eek of “la y

- 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 pr ovide 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 r eceived a renewed prescription for crutches, pain medication,
lay

- in meals, and assignment to a lower bunk to keep pressure

of f 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. T here 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 Pupp a la,
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 ga pping and to alleviate pain , and gave one to Petties

. Finally, he thought that surgery might be necessary due to t he

gapping , and referred Petties to a n ankle specialist. When Petties returned to Stateville, Dr. Carter authorized use of the

boot , along with crutches, ice, and assignment t o a lower

bunk. Petties asserts that Dr. Carter said he would not order
surgery because it was too costly.

In July 201 2, Petties finally saw an ankle speci alist, 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, b ut

did not authorize p hysical therapy . According to Petties, he
also said that surgery was too expensive.

That S eptember, Petties had his second MRI, which
showed a partia l 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 summar y 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 Constitu tion does not mandate comfortable prisons,
but neither does it permi t inhumane ones.” Farmer v. Brennan

, 5 11 U.S. 8 25

, 832 (1994) (internal citations and quotation

marks omitted). E very 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

intentional ly 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

§ 19 83.” 429 U.S . 97, 104

– 05 (emphasis added). The dissent collapses these distinct avenues to proving deliberate indifference into one

— any response6 No. 14

- 2674

been violated in the prison medical context , we perform a

two

- step analysis, first examining whether a plaintiff suffered
from an object ively 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 4 94, 498 (7th Cir. 2000)

. Here, the parties agree

that an Achilles tendon rupture is an objectively serious condition , b ut they dispute whether in responding to the rupture

, the defendants acte d 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, 99 2 (7th Cir. 1996) (citing Farmer

, 511 U.S. at 842). For a prison offici al’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 mal practice 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 fac e 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 Es telle, and we decline to make such a leap here.No. 14

- 2674 7

plaintiff must provide evidence that an official actually knew

o f and disregarded a substantial risk of harm. Id. at 837. Officials can avoid liabili ty 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 gener ally 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 stan dards 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

— h ow 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 subst antial 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 deliber ate indifference.

We start this inquiry by examining our existing precedent.

As an initial matter, w e look at the totality of an inmate’s medical care when con sidering whether that care evi de nces delibera te indifference to serious medical needs. Cavalieri v.
Shephard, 321 F.3d 616, 625

– 26 (7th Cir. 2003). W e 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. Estel le , 4298 No. 14

- 2674

U.S. at 1 04

– 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 n eed 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

b ase the decision on such a judgment.” Cole , 94 F.3d at 261

– 62;
see also Collignon v. Milwaukee C n ty., 16 3 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 respon ded under those circumstances.”)

. By

contrast, evidence that some medical professionals would

have chosen a different cour se 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, t he 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 decisionsNo. 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. Ely e a

, 631 F.3d 843, 859 (7th Cir. 2011) . So i t can

be challenging to draw a line between an acceptable difference of opinion (especially because even admitted medical
malpractice does not automaticall y give rise to a constitutional violation), and an action that reflects sub

- minimal competence 2 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 a n 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 medic al judgment is where a prison official persists in a course of treatment known to be ineffective.

Walker

, 233 F.3d at 499 (ci tations omitted). F or 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 indiffe rence. But we do not suggest that incompetent doctors violate the Constitution. We simplynote 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 do ctor 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 h im 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 w ith 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 intention al 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 fractur e 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, 43 3

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 cla im 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 th e ease of providing treatment. Compare Miller v. Campanel la , 794 F.3d
878, 880 (7th Cir. 201 5 ) (g iven extreme ease of supplying sufferer of gastro

- esophageal reflux disease with over

- the

- counter pills, fai ling to do so for two months created fact question

over deliberate indifference ), Berry , 604 F.3d at 441 (fi nding
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 )

, Rodrigu ez v. Plymouth Ambulance Serv. , 577 F.3d 816, 832 (7th Cir. 2009)
(state emp loyees could be liable for four

- day delay where
prisoner complained his intravenous therapy was causing him pain)

, with Gutierrez v. Pete rs , 111 F.3d 1364, 137 4 (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, 71 6 (7th Cir. 2007) (delay actionable where medical12 No. 14

- 2674

records showed it unnecessarily prolonged plaintiff’s pain
and high blood pressure); Gil v. Reed , 381 F.3d 6 49, 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
provis ion 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 t hat 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 o r 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.

O therwise, prison doctors would get a free pass to ignore prisoners’ medical needs by hiding behind the pre cedent that

medi cal malpractice is not actiona ble under the Eighth

Amendment. P risoners are not entitled to stat e

- of

- the art

medical treatment. But w here evidence exists that the defendants knew better than to make the medical decisions that theyNo. 14

- 2674 13

did, a jury should decide whether or not the defendant s w ere actually ignorant to risk of the harm that they caused.

W e now turn our attention to Petties’s claims against his

doctors.

A. Material Factual Dispute E xists as to Whether Dr.

Carter W as Deliberately I ndifferent

Petties’s p rincipal claim s against Dr. Carter are that he

acted with deliberate indifference to his injury when he failed

to immobiliz e Petties’s ruptured tendon for six weeks , delayed Petties’s appointment with a specialist , and refused to
order surgery to repair th e 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

- weig ht bearing status, and
prescribe anti

- i nflammatory drugs and passive stretching exercises. He explained the purpose of immobilization, stating,

“ in the acute phase of healing, you are generating an imm une

sy stem response in the body, ” and w hen 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 charact erization 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 re fused topursue care they knew he needed. Petties has never argued that his doctors’ poor care by itself violated the Eighth Amendment.14 No. 14

- 2674

bot h part ial 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 immob ilize a ruptured Achilles
tendon, unless the injury had a n 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

essen tial 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 tr eat ment for an Achilles rupture included a splint

. Dr. Carter also testified he was not aware of any shortage of
splints at Stateville during the ti me that he was treating Petties.

Together, these pieces of circumstantial evidence support

a reasonable infe rence 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 purpos e 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

medi c a l 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 t o until he
came under scrutiny

. Also, a jury could reasonably conclude

that Dr. Carter’s decision caused substantial harm

— Petties’s

affidavi t 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 wa lk, and made
sleep ing difficult

.
Besides Dr. Carter’s failure to immobilize his foot, Petties

also claims that Dr. Car ter was responsible for the six

- week
delay in seeing Dr. Puppala to confirm Petties’s diagnosis

, whic h is when he finally received a boot. As an initial matter, Petties has provided corroborating medical evidence that the
delay had a detri mental effect on his condition through Dr. Puppala ’s treatment notes , which indicate Petties was suffering pain and ga ppin g at the rup ture 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 wa s 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. Bu t immobilization could
have alleviated Petties’s pain while he waited, so this explana-16 No. 14

- 2674

tion does not res olve 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 th e boot would have been avoided by sending Petties to the emerge ncy room so he could get an MRI. And th e

harm from the delay in seeing a specialist would h ave been
mitigated by splinting Petties’s foot while security issues were

resolved . T he 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 c onfirming 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 medi cal decisions in Petties’s ca se

— 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 summ ary judgment on his § 1983 claims against Dr. Carter.

B. Material Factual Dispute Exists as to W hether Dr.

Obaisi W as Deliberately I ndifferent

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 kn ew 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 pro blem with Dr. Obaisi’s arguments is that they are
totally at odds with the evidence in this case. He testified that
he always fo llows the advice of specialists, that Petties’s specialist recommended physical therapy, and that he did not order physical ther apy 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 als o testified he did not know whether Petties had
previously undergone p hysical 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 ra ther than aggravate the
injury. And a reasonable jury could find leaving a patient to
make this determination by himself carried an imperm issible
and unjustifiable risk of pain and prolonged recovery . At the
very least, Petties has the right f or a jury to hear Dr. Obaisi’s
justifications for his treatment decisions (or lack thereof) and18 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 additio nal 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. I f
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 establish ed law under the Eighth Amendment. See

Farmer, 511 U.S. at 837. Given that the threshold factual question s of the defendants’ state s of mind remain disputed

, summary judgment on the basis of qu alified immunity is inappropriate. See DuFour

- Dowell v. Cogger , 152 F.3d 678, 680 ( 7th Cir.

1998).

III. CONCLUSION

For the foregoing reasons, we R EVERSE the d istrict court’s grant of summary judgmen t and R EMAND for further proceedings.No. 14

‐ 2674 19

E ASTERBROOK

, Circuit Judge

, joined by F LAUM and K ANNE

, 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 his20 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. When22 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 ofNo. 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 hope24 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.