UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ KRISTINE J. KELLUM, Plaintiff - Appellee,

v. ADELA MARES; STEP HANIE BREEN, Defendants - Appellants, and BERNALILLO COUNTY; BERNALILLO COUNTY COMMISSION; CORRECTIONAL HEALTHCARE COMPANIES, INC.; TIMOTHY TRAPP; KAAKI GARNER; TAILEIGH SANCHEZ, Defendants. Nos. 15-2215 & 15-2225 (D.C. No. 1:14-CV-00163-RB-CG) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , HOLMES , and McHUGH , Circuit Judges.

________________ _________________

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 25, 2016
Elisabeth A. Shumaker Clerk of Court2 Kristine Kellum filed a 42 U.S.C. § 1983 civil rights suit against personnel at the Bernalillo County Metropolitan Dete ntion Correctional Center (“BCMDC”) alleging in part that they were deliber ately indifferent to her serious medical condition in violation of he r Eighth Amendment constitutiona l rights. The district court denied a motion to dismiss file d by defendant Stephanie Breen, R.N., a privately employed nurse assigned to BCM DC, and denied a motion for summary judgment filed by Adela Mares, a BCMDC correctional officer employed by Bernalillo County. Ms. Breen and Ms. Mare s filed interlocutory appeals, which we have consolidated. We affirm.
I. BACKGROUND Ms. Kellum alleges she was booked into BCMDC with a fever and cough, but despite her obvious, ongoing, and worsen ing fever and cough, and vital signs indicating a need for urgent medical atte ntion, her condition was not diagnosed or treated until she was taken by ambul ance to a hospital a week later. 1 There she was diagnosed with endocarditis (infection of the heart) w ith septic pulmonary emoli (blockage of the pulmonary arteries with in fectious particles) and a large left-side pneumothorax (collapsed lung) . Ms. Kellum required exte nsive medical treatment, including open heart surgery, and will requi re additional open h eart surgeries and significant medical monitoring for the rest of her life. She al leges that if her

1 Ms. Kellum asserted nine federal a nd New Mexico state causes of action against numerous defendants. Only Ms. Kellum’s § 1983 ci vil rights claims against defendants Breen and Mares are at issue in these appeals.3 endocarditis had been diagnos ed sooner, her condition woul d have been less severe, she would have avoided damage to her he art and not needed open-heart surgery.
A. A LLEGATIONS A GAINST N URSE B REEN Because Nurse Breen appeals the denial of her Fed. R. Civ. P. 12(c) motion for partial judgment on the pleadings, we acce pt as true all we ll-pleaded factual allegations in Ms. Kellum’s complaint and vi ew them in the light most favorable to her. See Brown v. Montoya , 662 F.3d 1152, 1160 n.4, 1162 (10th Cir. 2011). Ms. Kellum was booked into BCMDC on Oct ober 17, 2012, and was so ill with fever that she had to lie down on the concrete fl oor to cool herself, and was unable to get out of bed by herself, to dres s herself, or to stand at th e cell door for meals or sick call. Her cellmates repeated ly requested medical treatmen t for her. On October 22, Ms. Kellum’s cellmates helped her stand fo r sick call, when she was seen by Nurse Breen. Nurse Breen is employed by defend ant Correctional Healthcare Companies, Inc., a private corporation providi ng health care services to BCMDC. Ms. Kellum described her condition to Nu rse Breen, stating that her symptoms were worsening, her fever was not going down, and she was ha ving trouble breathing with chest pains and a worsening cough. Nurse Breen assessed Ms. Kellum under a “Shortness of Breath” protocol, observing th at Ms. Kellum’s shortness of breath was not intermittent and existed even at rest, she had difficu lty taking a deep breath, and had nausea, fever and chills, and poor skin color. Ms. Ke llum alleges this Shortness of Breath protocol required Nurse Breen to monitor Ms. Kellum’s heart with an electrocardiogram (ECG), but no ECG test was performed. Ms . Kellum alleges her4 vital signs on October 22 of a high fever and low blood pre ssure indicated she needed to be transported to an emergenc y room for emergency medical care, 2 but no medical provider at BCMDC, including Nurse Breen, obtained emergency medical treatment for her. Nurse Breen told Ms. Kellum she was “one sick cookie.” Breen Aplt. App. at 176 (internal quotation marks omitted). Ms. Kellum was also examined on Oc tober 22 by defendant Kaaki Garner, R.N., and defendant Timothy Trapp, M.D., who gave her Tylenol and ibuprofen and advised her to drink more water. Ne ither Nurse Breen nor any other medical provider at BCMDC took any x-rays, or performed any sort of ECG or other laboratory testing in an attempt to diagno se Ms. Kellum or understand the nature of her illness until she was taken to the hospital on October 25. Nurse Breen moved for dismissal of Ms. Kellum’s Eighth Amendment § 1983 claim against her. Althou gh she is a private medical care provider, she argued she was entitled to assert a qualified immun ity defense, which shields “government officials from liability for civil damage s insofar as their c onduct does not violate clearly established statutor y or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan , 555 U.S. 223, 231 (2009) (internal quotation marks omitted). Th e district court denied the motion. It was persuaded that Nurse Breen was not en titled to qualified immunity as a private individual, but

2 According to her complaint, Ms. Kell um’s vital signs during the sick call with Nurse Breen were a temperature of 102.5° F, blood pressure of 95/55, and a pulse rate of 125 beats per mi nute. Her vital signs later that day were a temperature of 101.2°F, blood pressure of 88/ 52, and a pulse rate of 128.5 ruled that even if she was entitled to assert that de fense, the motion would fail because Ms. Kellum’s complaint plausibly alleged Nurse Breen vi olated her clearly established Eighth Amendment rights.
B. A LLEGATIONS A GAINST M ARES Because Ms. Mares’s appeal is from the denial of qualified immunity at the summary judgment stage, and our jurisdicti on is limited to purely legal issues, “we take, as given, the facts th at the district court assu med when it denied summary judgment.” Al–Turki v. Robinson , 762 F.3d 1188, 1191 (10th Cir. 2014) (internal quotation marks omitted). Thus, we “rely on the district court’s description of the facts, taken in the light most favorable to [Ms. Kellum], and do not reevaluate the district court’s conclusion that the . . . record is suffic ient to prove these facts.” Id. Ms. Kellum was placed in a general population pod at BCMDC at 4:30 p.m. on October 24. Ms. Mares was the only correc tional officer on duty in that housing unit that evening. Ms. Kellum’s fellow cellmat e, Pilar Gutierrez, immediately recognized Ms. Kellum was gravely ill. She said Ms . Kellum could barely walk, her voice was a whisper, she was breathless, her lips were purple-ish blue, her skin was gray, her skin felt cold and muggy, and she looked like a zombie. Ms. Gutierrez told Ms. Mares that Ms. Kellum needed imme diate medical attention. Ms. Mares responded that she was “really busy.” Mares Aplt. App. Vol. VI at 441. Ms. Gutie rrez asked Ms. Mares if Ms. Kellum could have a be d, explaining that she could not “even hold herself up. She’s extremely sick.” Id. Ms. Mares said she was wo rking on it. Ms. Gutierrez told Ms. Mares that Ms. Ke llum was “deathly ill.” Id . Ms. Kellum to ld Ms. Mares,6 “I’m going to die.” Id . Ms. Mares said to Ms. Kell um, “I can tell by looking at you, you’re sick,” and told her “[m]edical has alr eady seen you, so I guess you are going to die.” Id . Ms. Kellum was not taken to the BCMDC medical unit until 10:08 p.m. Her request for a wheelchair to take her there was denied, and she walked to the medical unit in “excruciating” pain. Id

. Ms. Mares moved for summary judgment, which the district court denied. It ruled the evidence was su fficient for a reasonable ju ry to find Ms. Mares knew Ms. Kellum needed urgent medical care because she exhibited obvious symptoms of severe illness, including profuse sweating, difficulty breathing, and an inability to stand; she was told by both Ms. Kellum and Ms. Gutierrez that Ms . Kellum felt and looked deathly ill; and Ms. Mares expressl y stated she could see Ms. Kellum was sick. The district court c oncluded that, notwithstanding this knowledge, the evidence showed Ms. Mares delayed Ms. Kellum’s rece ipt of medical care for five hours and told her she was going to have to die. The district court noted Ms. Kellum’s e xpert medical evidence that this five hour delay worsened her condition and caused her unnecessary pain. See Mata v.
Saiz , 427 F.3d 745, 755 (10th Cir. 2005) (holding that plaintiff may show a delay in medical treatment resulted in “substantia l harm” by providing specific evidence that the delay “caused either unneces sary pain or a worsening of [the] condition”). The district court cited medical testimony from Ms. Kellum’s e xpert, Dr. Ross, that the staphylococcus aureus bacterium respons ible for Ms. Kellum’ s heart infection doubles every twenty minutes, that the bact erium is very aggressive, and that a few7 days of delay could make a big difference in the patient’s outcome. Dr. Ross also testified that seventy-five pe rcent of patients with endo carditis caused by sepsis are treated successfully with antibiotics and without surg ery when they receive timely emergency care at the first signs of sepsis. The district court concluded this evidence was sufficient to support the reasonable in ference that the five hours Ms. Mares delayed medical treatment fo r Ms. Kellum worsened Ms. Kellum’s condition because during that time the bacteria doubled fifteen times, or increa sed by a factor of 16,386. Further, the district court cited the evidence showing Ms. Kellum experienced substantial and debilitating pain and su ffering during the five hours Ms. Mares delayed Ms. Kellum’s receipt of medical treatment. Accordingly, it denied Ms. Mares’s summary judgment motion.
II. APPLICABLE LAW
A. J URISDICTION We have jurisdiction under 28 U.S.C. § 1291 over the final collateral orders denying Nurse Breen’s and Ms. Mares’s motions on qua lified-immunity grounds. See Ashcroft v. Iqbal , 556 U.S. 662, 672 (2009) ( holding appellate courts have jurisdiction over orders reject ing as a matter of law qualif ied immunity raised in a motion to dismiss). Whether a plaintiff has sufficiently “alleged a violation of [her] clearly established constitutional rights to overcome [the] defense of qualified immunity is an issue of law revi ewable on interlocutory appeal.” Brown , 662 F.3d at 1162. Our review is de novo. Id

.8 Our jurisdiction to review Ms. Mares’ s appeal of her motion for summary judgment is limited, however, to “(1) whethe r the facts that the di strict court ruled a reasonable jury could find would suffice to s how a legal violation, or (2) whether that law was clearly established at the time of the alleged violation.” Henderson v. Glanz , 813 F.3d 938, 948 (10th Cir. 2015) (internal quotation ma rks omitted). We do not have jurisdiction to determine “whether or not the pretrial record sets forth a genuine issue of fact for tria l,” although “even when the distri ct court concludes issues of material fact exist, we [m ay review] the legal questio n of whether a defendant’s conduct, as alleged by the plaintiff, violates clearly established law.” Id . (brackets and internal quotation marks omitted).
B. E IGHTH A MENDMENT There is an obligation for the government to “provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble , 429 U.S. 97, 103 (1976). Prison officials violate the Eighth Amendment’s ban on cruel and unusual punishment if their “deliber ate indifference to serious medical needs of prisoners constitutes the unnecessary and wa nton infliction of pain.” Id . at 104 (internal quotation marks omitted). The test fo r deliberate indifference includes both an objective and subjective component. Mata , 427 F.3d at 751. To satisfy the objective component, the alleged deprivation must be “sufficiently serious”; that is, it must expose the inmate to a “substantial risk of serious harm.” Farmer v. Brennan , 511 U.S. 825, 834 (199 4) (internal quotation marks omitted). “[A] medical need is sufficiently serious if it is one that has been9 diagnosed by a physicia n as mandating treatment or one that is so obvious that even a lay person would easily recognize the nece ssity for a doctor’s attention.” Mata , 427 F.3d at 751 (internal quotation marks omitted). To satisfy the subjective component, the prison official “must have a sufficiently culpable state of mind.” Farmer , 511 U.S. at 834 (internal quotation marks omitted). The plaintiff must s how that the defendant “[knew] of and disregard[ed] an excessive risk to inmate health or safety.” Id . at 837. That is, the defendant “must both be aware of facts from which the infe rence could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id

. “[W]hether a prison official had the requisi te knowledge of a substantial risk is a question of fact subject to demonstration in the usual wa ys, including inference from circumstantial evidence.” Id . at 842.
C. Q UALIFIED I MMUNITY “When a defendant asserts qualified imm unity at summary j udgment,” as did Ms. Mares, “the burden shifts to the plainti ff to show that: (1) the defendant violated a constitutional right and (2) the constitu tional right was clearly established.” Morris
v. Noe , 672 F.3d 1185, 1191 (10th Cir. 2012) (i nternal quotation marks omitted). “To determine whether the right wa s clearly established, we as k whether the contours of a right are sufficiently clear that every reas onable official woul d have understood that what he is doing violates that right.” Estate of Booker v. Gomez , 745 F.3d 405, 411 (10th Cir. 2014) (internal quotation marks omitted). Nu rse Breen raised a qualified immunity defense at the moti on to dismiss stage, which “subjects the defendant to a10 more challenging standard of review than would apply on summary judgment,”
Peterson v. Jensen , 371 F.3d 1199, 1201 (10th Cir. 2004) , as “it is the defendant’s conduct as alleged in the comp laint that is scrutinized,” Behrens v. Pelletier , 516 U.S. 299, 309 (1996) (emphasis omitted). 3 “It has been clearly established in th is circuit since at least 2006 that a deliberate indifference claim will arise when ‘a medica l professional completely denies care although presented with recogni zable symptoms whic h potentially create a medical emergency . . . a nd the prison official, knowi ng that medical protocol requires referral or minimal diagnostic testing to conf irm the symptoms, sends the

3 The district court concluded Nurs e Breen was not entitled to qualified immunity both because she is a private person, not a public official, and because the complaint plausibly alleged she violat ed Ms. Kellum’s clearly established constitutional rights. Although Nurse Bree n challenges both grounds, we need only address the latter. As the di strict court noted, this court has yet to decide whether or not qualified immunity is available to em ployees of a privat e company providing medical services to inmates. See Richardson v. McKnight , 521 U.S. 399, 409

‒ 12 (1997) (holding that prison guards employed by a large, for-profit multistate private prison management company that had contracted with the state to manage the prison are not entitled to qualified imm unity in a prisoner’s § 1983 action); McCullum v. Tepe , 693 F.3d 696, 704 (6th Ci r. 2012) (holding that a private doctor providing psychiatric services to inmate s at a state prison is inelig ible for qualified immunity); but see Filarsky v. Delia, ___ U.S. ___, 132 S. Ct. 1657, 1665, 1667

‒ 68 (2012) (extending qualified immun ity under § 1983 to private investigator who was temporarily retained by a city to assist in an internal investigation, holding that “immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis”). We decline to decide this issue because we agree w ith the district court’s alternative conclusion that , assuming for the sake of argument Nurse Breen could assert a qualified immunity defense, Ms. Ke llum’s complaint states a plausible claim that Nurse Breen is not entitl ed to such immun ity because she viol ated Ms. Kellum’s clearly established Eight h Amendment rights.11 inmate back to his cell.’” Al

‒ Turki , 762 F.3d at 1194 (quoting Self v. Crum , 439 F.3d 1227, 1232 (10th Ci r. 2006)). It is also clearly esta blished in this circuit that a delay in medical care constitutes an Eighth Amendment violati on where the plaintiff can show the delay resulted in substantial harm. Mata , 427 F.3d at 751.
III. ANALYSIS
A. D ENIAL OF N URSE B REEN ’ S M OTION TO D ISMISS The court must accept as true all well-pleaded factual allegations in Ms. Kellum’s complaint, though to withsta nd a motion to dismiss, she must allege facts that make her stated claim for relief facially plausible. Ashcroft , 556 U.S at 678. “A claim has facial plausibility when the plaintif f pleads factual content that allows the court to draw th e reasonable inference that th e defendant is liable for the misconduct alleged.” Id

. The district court held that Ms. Kellu m’s complaint plausibly alleged both the objective and subjective components of an Eighth Amendment claim. It ruled that the alleged delay and depriva tion of medical treatment re sulting in endocarditis heart damage, the need for open h eart surgery, and the attendant unnecessary pain and suffering constitute harm sufficiently serious to satisfy the objective component of a deliberate indifference clai m. Nurse Breen concedes Ms. Kellum’s complaint plausibly alleges the objectiv e component, but challenges th e district court’s finding that Ms. Kellum pled suffici ent facts to plausibly show the subjective component. The court identified the following fact ual allegations that support the claim that Nurse Breen knew of, and deliberatel y disregarded, an excessive risk to12 Ms. Kellum’s health from delayed treatm ent: Nurse Breen knew Ms. Kellum had an untreated fever and cough for five days, knew from the Shortness of Breath protocol she performed that Ms. Kellum’s condition indicated the need for an ECG test, knew from Ms. Kellum’s vital signs that emergenc y medical treatment was indicated, and recognized that Ms. Kellum was “one sick cookie.” Breen Aplt. App. at 176, 184 (internal quotation marks omitted). The district court determined that this knowledge, coupled with Ms. Kellum’s allega tions that Nurse Breen did not take an x-ray, perform an ECG or any other labor atory testing to asse ss or diagnose the reason for her condition, or refer her to a hospital for emergency medical treatment, were sufficient to plausibly show Nurs e Breen was deliberately indifferent. The court further noted the allegation that the severity of Ms. Kell um’s condition was so obvious to her fellow inmates that they a ll recognized she needed urgent medical care and repeatedly requested me dical treatment for her. See Farmer , 511 U.S. at 842 (holding “a factfinder may conc lude that a prison official knew of a substantial risk from the very fact that the risk was obvious”). On appeal, Nurse Breen argues that th e allegations that she knew Ms. Kellum was very sick, and that the symptoms Ms. Kellum presente d to her indicated a need for an ECG test and emergency medical treat ment, are insufficient to state an Eighth Amendment claim because they rest on an assumption that she had the power to perform or order an ECG or other testi ng or to obtain emergency treatment for Ms. Kellum. She asserts sh e was merely a sick call nurse and her only purpose was to act as a gatekeeper to enable Ms. Kellum to see other medical providers, which she13 asserts she did, because Ms. Kellum was la ter seen by Dr. Trapp and Nurse Garner. She asserts that Dr. Trapp was responsib le for prescribing Ms. Kellum’s medical

treatment. The problem with this argum ent is it rests on factual a ssertions that are not in the complaint. The co mplaint does allege that Nurse Br een saw Ms. Kellum at a sick call, but it does not include Nurse Breen’s assertion that her only function was as a gatekeeper, that she lacked any power or authority to arrange for ECG or other testing or to refer Ms. Kellum to the hos pital, or that Dr . Trapp was solely responsible for Ms. Kellum’s medical treatmen t. Nurse Breen may ultimately present evidence in support of these allegations, but they may not be co nsidered in a Rule 12(c) motion to dismiss on the pleadings. Nurse Breen argues she cannot be liable because Ms. Kellum was later seen by Dr. Trapp and Nurse Garner. But Nurse Breen is not insulated fr om liability based on later medical care “[b]ecause deliberate indifference is asse ssed at the time of the alleged omission.” Estate of Booker , 745 F.3d at 433 (“[A ]ny assessment of [plaintiff’s] condition conducted several hours after her encounter with [the nurse] is irrelevant to whether [the nurse] knew of and disregarded an excessive risk to [plaintiff’s] safety.” (inter nal quotation marks omitted)). Nurse Breen argues Ms. Kellum’s claim must fail because her complaint does not allege that it was obvi ous she was suffering from an infection of the tricuspid valve of her heart. But the relevant question is the risk of substantial harm, not whether the official knew of the specifi c medical condition causing the symptoms14 presented by the prisoner. Farmer , 511 U.S. at 842 (“The que stion under the Eighth Amendment is whether prison officials, acti ng with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future health.” (emphasis added) (internal quot ation marks omitted)). In Farmer , the Court held a plaintiff can show deliberate indifference by demonstrating that the prison official was aware of an obvious, substa ntial risk to a prisoner’s sa fety even if the official “did not know that the complainant was es pecially likely to be assaulted by the specific prisoner who eventually committed the assault.” Id . at 843. It is well established that “a factfi nder may conclude that a prison official knew of a substantial risk from th e very fact that the risk was obvious.” Id . at 842 (emphasis added). Here, the complaint alleged facts that plausibly show that the risk of endocarditis or other life-threatening illnes s was indeed obvious. Ms. Kellum alleged Nurse Breen recognized Ms. Kellum was exhibiting severe, obvious, recognizable symptoms—prolonged high fever and chil ls, demonstrable breathing problems, nausea, low blood pressure, poor skin colo r, and inability to st and or walk—which Nurse Breen must have known required urgent medical attention and indicated a need for an ECG and other diagnostic testing to assess the reason for these symptoms. Nurse Breen argues Ms. Kellum’s allegations are wholly concluso ry. It is true that conclusory allegations are insuffici ent to withstand a motion to dismiss. See Khalik v. United Air Lines , 671 F.3d 1188, 1193 (10th Ci r. 2012) (stating that conclusory allegations in a complaint are “not entitled to the assumption of truth”). But we do not agree that Ms. Kellum’s a llegations are conclusory. The term15 “conclusory” refers to the expression of “a factual inference without stating the underlying facts on which the inference is based.” Black’s Law Dictionary (10th ed. 2014). Here, Ms. Kellum included in her complaint the specific underlying factual allegations in support of her claim agai nst Nurse Breen, including the specific medical symptoms and vital si gns that she presented to Nu rse Breen that indicated a need for further assessment, testing, diagnosis, and emer gency medical treatment. It is from these factual allegati ons that a plausible inferen ce of deliberate indifference can be drawn. Accordingly, we conclude Ms. Kellum has stated a plausible claim upon which § 1983 relief may be granted, and that Nurse Breen was not entitled to judgment as a matter of law on the pleadings.
B. D ENIAL OF M S

. M ARES ’ S M OTION FOR S UMMARY J UDGMENT A prison official who serves solely “as a gatekeeper for other medical personnel capable of treating the condition may be held liable under the deliberate indifference standard if she delays or refu ses to fulfill that gatekeeper role.” Self , 439 F.3d at 1232 (internal quota tion marks omitted). The di strict court concluded the evidence was sufficient to find Ms. Mare s knew Ms. Kellum was seriously ill and needed immediate medical treat ment and disregarded this obvi ous, substantial risk to her health by delaying her receipt of tr eatment for five hours, causing substantial harm by worsening Ms. Kellum’s conditi on and causing her unnecessary pain and suffering.16 On appeal, Ms. Mares challenges only the causation element of the objective component as it relates to delayed treatmen t; that is, whether the delay “resulted in” substantial harm. Mata , 427 F.3d at 751 (internal quotation marks omitted). She contends Ms. Kellum failed to present e xpert medical evidence that the five-hour delay caused a worsening of Ms. Kellum’s c ondition. Mares Opening Br. at 2. She does not challenge the district court’s de termination there wa s sufficient evidence that the delay unnecessarily prolonged Ms . Kellum’s pain and suffering, or that Ms. Mares had the culpable state of mi nd required to establish the subjective component of a deliberate indifferen ce claim. Mares Opening Br. at 2. When a prisoner claims that harm was caused by a delay in medical treatment, she satisfies the objective component by show ing the delay resulted in substantial harm. Mata , 427 F.3d at 751. “[T]he ‘substa ntial harm’ caused by a delay in treatment may be a permanent physical injury, or it may be an intermediate injury, such as the pain experienced while wa iting for treatment and analgesics.” Al

‒ Turki , 762 F.3d at 1193 (internal quotation marks omitted). The prisoner may show “substantial harm” by providing evidence th at the delay “caused either unnecessary pain or a worsening of [the] condition.” Mata , 427 F.3d at 755. “Even a brief delay may be unconstitutional.” Id . Here, as noted above, the district court found Ms. Mares’s delay in getti ng medical treatment for Ms . Kellum worsened her condition and caused her unnecessary pain. Ms. Mares first asks this court to rule that “e xpert medical evidence is absolutely required to establ ish” that a public official’s delay in treatment caused17 substantial harm. Mares Opening Br. at 25. We have located no authority in this circuit absolutely requiring expert testimony to establis h causation in an Eighth Amendment medical-treatment claim. Whether expert testimony is necessary to prove deliberate indifference to a serious medical need depends on the nature and complexity of the me dical issues in a particular ca se and what other evidence is available in the record. See, e.g. , Ortiz v. City of Chicago , 656 F.3d 523, 534–35 (7th Cir. 2011) (citing cases that held non- expert evidence is sufficient in delay-ofmedical-care cases as long as it permits the fact-finder to de termine whether the delay caused additional harm; ruling expert not needed when obviously ill inmate dies after defendants failed to provide any medical care). In any event, Ms. Kellum did pres ent expert medical testimony. But Ms. Mares argues that the expe rt medical testimony is insuffi cient as a matter of law because it does not demonstr ate that the worsening of Ms. Kellum’s condition caused the need for open heart surgery, extens ive medical treatment, hospitalization, rehabilitation, and lifetime m onitoring. Mares Opening Br. at 27. She argues there is an evidentiary causation vacuum because it is po ssible, given the aggressive bacteriareplication rate, that Ms. Ke llum “was already at the poi nt of no return well before the afternoon/evening of October 24.” Id . at 38. The relevant question is whether the de lay worsened Ms. Kellum’s condition, not caused it, and the dist rict court found the delay caused the substantial “intermediate harm[s]” of worsened infection and u nnecessary pain. See Mata , 427 F.3d at 753 (holding the objective test can be met by the “intermediate harm,”18 considering the symptoms “presented at the time the prison employee has contact with the prisoner” or by the resulting ha rm, when, for example, “delay by prison employees results in dama ge to a prisoner’s heart” which “undoubtedly” is “sufficiently serious”). We ar e satisfied that the expert medical opinion regarding the bacteria-replication rate is sufficient to me et Ms. Kellum’s summary judgment burden on worsened-condition cau sation. The district court found the experts’ testimony, coupled with all reasonable infere nces viewed in the light most favorable to Ms. Kellum, would permit a jury to conclude Ms. Mares’s delay worsened Ms. Kellum’s heart infection. We ca nnot question that reasonable-inference determination, as we “lack[ ] jurisdiction at this stage to review a district court’s conclusions . . . that a plain tiff’s evidence is sufficient to support a particular factual inference.” Fancher v. Barrientos , 723 F.3d 1191, 1199 (10th Cir. 2013) (internal quotation marks omitted). Lastly, Ms. Mares argues the district c ourt’s determination that a jury could reasonably infer from the e xpert testimony that Ms. Ke llum’s condition worsened based on the bacteria replicat ion rate is “blatantly c ontradicted” by the record. “[W]hen the version of events the district court holds a reasonable jury could credit ‘is blatantly contradicted by the record,’ we may assess the ca se based on our own de novo view of which facts a reasonabl e jury could accept as true.” Lewis v. Tripp , 604 F.3d 1221, 1225–26 (10th Cir. 2010) (quoting Scott v. Harris , 550 U.S. 372, 380 (2007)). Ms. Mares asserts Dr. Ross and another expert, Dr . DiCianno, testified they had no opinion as to whether the alleged acts or omissions of any BCMDC officials19 caused or contributed to Ms. Kellum’s me dical outcome. We have reviewed the expert medical evidence, a nd conclude this deposition testimony does not blatantly contradict the evidence that the bacterium doubled ever y twenty minutes, or the inference the district court drew from that evidence that the delay worsened Ms. Kellum’s condition. Significantly, Ms. Mares does not dis pute the district court’s additional determination that there wa s sufficient eviden ce that the delay caused Ms. Kellum unnecessary pain and sufferi ng. Evidence that delay ca used substantial unnecessary pain and suffering is sufficient to esta blish the delay-cause d-substantial-harm element. See Al

‒ Turki , 762 F.3d at 1193 (“[W]hen the pain experienced during the delay is substantial, the prisoner sufficien tly establishes the obj ective element of the deliberate indifference test.” (internal quotation marks omitted)); Sealock v. Colorado , 218 F.3d 1205, 1210 n.5 (10th Cir. 2000) (“Althoug h [defendant] did not cause [the prisoner’s] heart at tack, there is factual evid ence from which a jury could conclude that the delay occasioned by his inaction unn ecessarily prolonged [the prisoner’s] pain and suffering.”). Here, Ms. Kellum “exceeded the minimum evidentiary requirement . . . by presenti ng specific evidence th at she suffered both unnecessary pain and a wors ening in her condition.” Mata , 427 F.3d at 755 (emphasis added). We therefore conclude that Ms. Ke llum met her summary-judgment burden to establish causation and the objective co mponent of her Eighth Amendment claim against Ms. Mares.20 IV. CONCLUSION The district court’s orders denying Nu rse Breen’s motion for judgment on the pleadings and Ms. Mares’s motion fo r summary judgment are affirmed.

Entered for the Court
Carolyn B. McHugh Circuit Judge