Tyrone Petties v. Imhotep Carter , 795 F.3d 688 ( 2015 )

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 — DECIDED JULY 30, 2015
____________________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
PER CURIAM. Tyrone Petties, an Illinois prisoner, claims in
this suit under 42 U.S.C. § 1983 that successive medical di-
rectors at Stateville Correctional Center violated the Eighth
Amendment by failing to provide adequate medical care for
his torn Achilles tendon. Petties appeals the district court’s
grant of summary judgment for the doctors. We conclude
that, on this record, a jury could not reasonably find that the
2 No. 14-2674
doctors’ treatment of Petties’s ankle rose to the level of a
constitutional violation, and we affirm.
Background
In January 2012 Petties was climbing stairs when he felt a
sudden “pop” and extreme pain in his left ankle. He went
immediately to the prison infirmary, where the examining
physician noted tenderness and abnormal reflex in the left
Achilles tendon and observed that Petties could not bear
weight on that ankle. The physician, who is not a defendant
in this suit, prescribed Vicodin and crutches. He also author-
ized a week of “meals lay-in” so that Petties could eat in his
cell rather than walk to the cafeteria.
That same day the prison’s medical director, Dr. Imho-
tep Carter, noted in the medical file that Petties in fact had
suffered an “Achilles tendon rupture.” Dr. Carter, an em-
ployee of Wexford Health Sources (and one of the defendant
physicians) modified his colleague’s treatment instructions
by directing that Petties be scheduled for an MRI and exam-
ination by an orthopedist. He characterized these additional
steps as “urgent.”
Prison lockdowns during the following week resulted in
cancelation of three appointments at the infirmary. By the
time Petties was next seen, eight days had passed since his
injury, and apparently he thought he could bear weight on
his left foot. That was the understanding of the examining
physician, who noted in the medical file that Petties “be-
lieves he can bear weight.” Petties insists that, at the time, he
was experiencing severe pain when he put weight on his left
foot, but he does not dispute that the examining physician
read the situation differently.
No. 14-2674 3
During the weeks after his injury, Petties continued to
feel pain even when he used the crutches. He next was seen
in the infirmary in February 2012, three-and-a-half weeks
after his injury. Petties complained to an infirmary worker
that his Achilles tendon was “killing” him and keeping him
from climbing stairs because of the pain. The next day, on
February 14, 2012, Dr. Carter examined him and noted that
the Achilles tendon was shortened and swollen. He extend-
ed the prescription for Vicodin for six weeks, directed Petties
to continue using crutches, reauthorized him to have a low
bunk and “medical lay in” for two months, and told him to
avoid stairs and the gym.
On March 6, 2012, Petties was taken offsite for the MRI
ordered by Dr. Carter. That diagnostic confirmed a “com-
plete Achilles tendon rupture.” The next week Petties again
was taken offsite for examination by Dr. Anuj Puppala, an
orthopedist. He opined that the absence of “any sort of cast”
to immobilize Petties’s torn Achilles tendon was “contrib-
uting to his pain and likely contributing” to the 2 cm gap in
the ruptured tendon. Dr. Puppala gave Petties an orthopedic
boot that would function like a cast to immobilize his ankle.
The doctor also recommended continued use of crutches and
referred Petties to a foot and ankle specialist. A doctor at
Stateville promptly approved use of the orthopedic boot for
three months, and another infirmary physician increased the
strength of the Vicodin dose prescribed for Petties.
Petties continued to be seen at the infirmary until his ap-
pointment with the foot and ankle specialist. A note in his
medical file from April 4, 2012, says that Petties was wearing
the boot but waiting on special support shoes. On April 10
he was wearing the boot and walking with a cane. In May a
4 No. 14-2674
doctor renewed his allowance for a low bunk, crutches, and
orthopedic boot until August. The prison’s medical staff also
repeatedly renewed the Vicodin prescription—at the end of
April, in May, and in June. Petties’s permit for one crutch
and the orthopedic boot was extended until December of
that year.
Petties was examined by the foot and ankle specialist,
Dr. Samuel Chmell, in July 2012. Dr. Chmell apparently had
treated Petties before in 2010 when he ruptured the Achilles
tendon in his right ankle. Dr. Chmell did not observe evi-
dence of “tenderness with range of motion” but did see
signs of decreased ankle strength. He recommended that
Petties continue limiting his physical activity, undergo a sec-
ond MRI to assess the progress of his healing, and receive
physical therapy at least twice per week. In August 2012 an-
other Wexford employee, Dr. Saleh Obaisi, replaced
Dr. Carter as medical director at Stateville. Dr. Obaisi (the
second of the defendant physicians) already had been work-
ing weekends at the prison, and had approved the MRI rec-
ommended by Dr. Chmell. That second MRI was performed
in September 2012, and showed a partial Achilles tear.
A few weeks after Dr. Obaisi’s promotion to medical di-
rector, he examined Petties. His notes from his August ex-
amination indicate that Petties had not been using his
crutches and wanted to return them. During that examina-
tion Dr. Obaisi told Petties that physical therapy would not
be ordered. The next month Petties was using one crutch
when he was seen by a nurse at the infirmary. Near the end
of September 2012, Dr. Obaisi noted that Petties had “not
seen ortho yet” and prescribed Tylenol.
No. 14-2674 5
Petties next saw Dr. Obaisi in November 2012, about 10
months after his injury. The doctor observed that Petties still
was experiencing pain and authorized continued assignment
to a low bunk, soft-soled gym shoes, and another year’s use
of the orthopedic boot. From December 2012 to April 2013,
other medical staff also tended to Petties on five occasions.
On April 16, 2013, Petties visited the infirmary; he com-
plained that he was not getting pain medication or the shoes
ordered by Dr. Obaisi, but the practitioner who saw him
noted that he had received pain medication and shoes from
Dr. Obaisi the previous October. In June 2013 he was given
additional pain medication. In his declaration submitted at
summary judgment, Petties says that as of early 2014 he still
was experiencing “serious pain, soreness, and stiffness” in
his left ankle.
Petties filed this suit in November 2012, initially against
Wexford as well as Drs. Carter and Obaisi. The district court
recruited a lawyer, who later amended the complaint to
drop Wexford and allege that only the two doctors were de-
liberately indifferent to Petties’s torn Achilles tendon. Petties
principally argued that Dr. Carter was deliberately indiffer-
ent to his torn Achilles tendon by failing to immobilize his
ankle with a boot or cast immediately after the injury, and
Dr. Obaisi acted with deliberate indifference to the injury
when he did not order physical therapy despite Dr. Chmell’s
recommendation.
The district court granted the doctors’ motion for sum-
mary judgment. Dr. Carter’s decision to wait eight weeks
before immobilizing Petties’s ankle in a cast or boot could
not have constituted deliberate indifference, the court rea-
soned, because Petties’s several physicians in and out of
6 No. 14-2674
prison held different opinions about whether a boot or cast
had been necessary. The court further concluded that a jury
could not reasonably find that Dr. Obaisi’s rejection of the
recommendation for physical therapy had constituted delib-
erate indifference because, according to the judge, Petties
had learned physical therapy exercises a year earlier (when
he ruptured his right Achilles tendon) and could have per-
formed those same exercises on his own.
Analysis
On appeal Petties first argues that the district court
wrongly attributed to a difference of medical opinion
Dr. Carter’s choice not to immediately immobilize his ankle
despite Wexford’s treatment protocol. Petties says that the
delay between his injury and when his ankle was immobi-
lized left him in “constant, severe pain” and worsened the
tendon rupture. Prolonged and unnecessary pain resulting
from a significant delay in effective medical treatment may
support a claim of deliberate indifference. Berry v. Peterman,
604 F.3d 435, 441 (7th Cir. 2010); Grieveson v. Anderson, 538
F.3d 763, 779 (7th Cir. 2008); Edwards v. Snyder, 478 F.3d 827,
832 (7th Cir. 2007). But disagreement with a doctor’s medical
judgment is not enough to prove deliberate indifference. Ber-
ry, 604 F.3d at 441; Johnson v. Doughty, 433 F.3d 1001, 1013
(7th Cir. 2006); Norfleet v. Webster, 439 F.3d 392, 397 (7th Cir.
2006). Even admitted medical malpractice is not sufficient to
show that a doctor acted with deliberate indifference. McGee
v. Adams, 721 F.3d 474, 481 (7th Cir. 2013); Norfleet, 439 F.3d
at 397. Rather, the inmate must show that the doctor’s treat-
ment strayed so far from accepted professional standards
that a jury could infer the doctor acted with deliberate indif-
ference. See McGee, 721 F.3d at 481; Roe v. Elyea, 631 F.3d 843,
No. 14-2674 7
857 (7th Cir. 2011); Duckworth v. Ahmad, 532 F.3d 675, 679
(7th Cir. 2008).
We agree with the district court that, on this record, a ju-
ry could not reasonably conclude that Dr. Carter was delib-
erately indifferent by waiting to give Petties a splint or boot.
Immediately after Petties’s injury, a prison doctor exempted
him from walking to meals and prescribed pain medication,
an anti-inflammatory, and crutches. The walking exemption
and prescriptions were renewed repeatedly. And that same
day, Dr. Carter—who had treated about 10 ruptured Achil-
les tendons previously—ordered an urgent referral for an
MRI and an appointment with an orthopedist. Although
Dr. Carter acknowledged that treatment for a complete
Achilles tear typically includes immobilizing the ankle to
minimize putting weight on the ankle, he also explained that
he did not employ a splint initially because he believed that
giving Petties crutches and minimizing his time on his feet
was an effective treatment plan. Additionally, Dr. Puppala,
the orthopedist who examined Petties after his MRI in
March 2012, testified that although he would almost always
immobilize a patient’s ankle in a cast or boot, a torn Achilles
tendon “would probably heal” without one. This meaningful
and ongoing treatment of Petties’s injury at Stateville and
with outside medical providers—which Dr. Carter over-
saw—could not constitute deliberate indifference.
Petties next argues that Dr. Obaisi was deliberately indif-
ferent when he declined to order physical therapy despite
the ankle specialist’s recommendation in July 2012 for week-
ly physical therapy. Doctors are entitled to deference in
treatment decisions unless no minimally competent profes-
sional would have acted similarly. See McGee, 721 F.3d
8 No. 14-2674
at 481; King v. Kramer, 680 F.3d 1013, 1018–19 (7th Cir. 2012);
Roe, 631 F.3d at 857. And although not following the advice
of a specialist may constitute deliberate indifference, see Gil
v. Reed, 381 F.3d 649, 663–64 (7th Cir. 2004); Jones v. Simek,
193 F.3d 485, 490 (7th Cir. 1999), whether a doctor is deliber-
ately indifferent depends on the totality of the inmate’s care,
see Walker v. Peters, 233 F.3d 494, 501 (7th Cir. 2000); Dunigan
ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th Cir.
1999); Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir. 1997).
Petties was treated immediately and continuously after he
tore his Achilles tendon. He received crutches, regular pain
medication, and later a boot to immobilize his left ankle, and
was permitted to minimize time on his feet by eating his
meals in his cell and not attending yard and gym time. Doc-
tors at the prison (including Dr. Obaisi) repeatedly renewed
those treatments after Dr. Obaisi took over as medical direc-
tor. And Dr. Chmell, the specialist who had recommended
physical therapy, testified that when he examined Petties in
July 2012, the ankle had diminished strength but a full range
of motion, and the tendon was partially healed, even with-
out receiving any physical therapy before then. Petties’s evi-
dence does not show that Dr. Obaisi’s treatment was so con-
trary to accepted professional standards that a jury could in-
fer that it was not based on medical judgment. See Duck-
worth, 532 F.3d at 680; Norfleet, 439 F.3d at 396.
Accordingly, the judgment of the district court is
AFFIRMED.
No. 14-2674 9
WILLIAMS, Circuit Judge, dissenting. “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.”
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th
Cir. 2009). To succeed on an Eighth Amendment claim based
on deficient medical care, a plaintiff must show that he
suffered from an objectively serious medical condition and
that each individual defendant was deliberately indifferent
to that condition. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir.
2010). “Deliberate indifference occurs when a defendant
realizes that a substantial risk of serious harm to the prisoner
exists, but the defendant disregards that risk.” Id. It is
intentional or reckless conduct, not mere negligence. Id.
(citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
There is no dispute that Petties’s Achilles tendon rupture
was objectively serious. So the only issue in this appeal is
whether Petties has presented enough evidence from which
a reasonable jury could conclude that Dr. Carter and Dr.
Obaisi acted with deliberate indifference toward his serious
injury. Viewing the facts in the light most favorable to Petties
and drawing all reasonable inferences in his favor as we
must, Pagel v. TIN Inc., 695 F.3d 622, 624 (7th Cir. 2012), in my
view, he has.
A. Dr. Carter
On this record a jury could reasonably conclude that Dr.
Carter was deliberately indifferent by failing to immobilize
Petties’s ankle despite his employer’s protocol for a ruptured
Achilles tendon and his testimony that immobilization was
the appropriate treatment. On January 19, 2012, the day of
Petties’s injury, Dr. Carter concluded that Petties suffered an
10 No. 14-2674
“Achilles tendon rupture.” However, he did not immobilize
Petties’s ankle with a splint (or by any other means), even
though Wexford’s written protocols direct that treatment for
a ruptured Achilles tendon is “splint, crutches.” Petties met
with other medical personnel in the following weeks,
including a meeting with Dr. Carter on February 14, but Dr.
Carter failed to immobilize his ankle then and Petties did not
receive any type of immobilization until March 15, nearly
two months after his injury. Evidence that a medical
provider failed to abide by an established treatment protocol
is evidence from which a jury could infer deliberate
indifference. See Mata v. Saiz, 427 F.3d 745, 757–58 (10th Cir.
2005) (reversing summary judgment where nurse’s violation
of published health-care requirements was circumstantial
evidence that she knew of substantial risk of harm); see also
Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 542–43 (6th Cir.
2008) (affirming denial of qualified immunity for paramedic
whose failure to follow established treatment protocols
could constitute deliberate indifference). Wexford’s protocol
is explicit that a physician attending to a ruptured Achilles
tendon employ “splint, crutches, antibiotics if laceration”
and also make an “urgent” referral for further treatment. Dr.
Carter admitted having seen about ten ruptured Achilles
tendons previously, and he himself recognized and
diagnosed a “rupture” the same day that Petties was injured.
He ordered an urgent referral for an MRI and an
appointment with an orthopedist, yet during this lawsuit he
has never explained why he disregarded the directive to
“splint,” or provide a splint for, Petties’s ankle.
Failing to immobilize the ankle caused Petties to suffer
unnecessary pain during this eight-week period. Dr. Puppala
testified that making Petties walk on his left ankle without
No. 14-2674 11
any form of cast until March had added to his pain and
likely widened the gap in his torn tendon. Furthermore,
Petties himself testified that he was in extreme pain during
those eight weeks. He said he felt “constant, severe pain”
even when he used crutches and the pain was so bad he had
difficulty sleeping. Two weeks after the injury, on January
27, at an appointment, Petties says that he could not bear
weight on his left foot without severe pain. 1 On February 13,
a provider who saw him in the clinic noted in Petties’s chart
that he had complained that his Achilles tendon was
“killing” and he was unable to walk up stairs because of the
pain. It is widely known that failing to immobilize an
Achilles tendon rupture results in extreme pain and no one
has put forward any medical justification for causing Petties
this unnecessary additional pain. Petties has presented
sufficient evidence to create a material issue of fact about
whether Carter intentionally or with reckless disregard
denied effective treatment. This deliberate indifference to
Petties’s prolonged, unnecessary pain can itself be the basis
for an Eighth Amendment claim. See Smith v. Knox Cnty. Jail,
666 F.3d 1037, 1039–40 (7th Cir. 2012). Prolonged and
unnecessary pain resulting from a significant delay in
effective treatment may support a claim of deliberate
indifference. Berry, 604 F.3d at 441. “A delay in treating non-
life-threatening but painful conditions may constitute
deliberate indifference if the delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” Arnett v. Webster,
658 F.3d 742, 753 (7th Cir. 2011). We have said that the length
1A doctor wrote in his medical records that Petties “believes he can bear
weight,” but Petties says that that statement is false. At this stage, we
must view the facts in the light most favorable to Petties and draw all
reasonable inferences in his favor.
12 No. 14-2674
of the delay that is tolerable depends on the seriousness of
the condition and the ease of providing treatment. Id.; see also
Williams v. Liefer, 491 F.3d 710, 716 (7th Cir. 2007) (affirming
denial of motion for judgment as a matter of law because “a
reasonable jury could have concluded from the medical
records that the delay unnecessarily prolonged and
exacerbated [the plaintiff’s] pain and unnecessarily
prolonged” the plaintiff’s serious health condition). Dr.
Carter testified that he never recalled splints not being
available at the prison. But he still failed to splint Petties’s
ankle at any point during those two months. The length of
delay here is intolerable given the seriousness of Petties’s
injury and the ease of providing the immobilization at the
prison. See Arnett, 658 F.3d at 753.
In my view, the majority wrongly finds that “a jury could
not reasonably conclude that Dr. Carter was deliberately
indifferent by waiting to give Petties a splint or boot.” As
I’ve discussed, there is ample evidence from which a
reasonable jury could conclude Dr. Carter was deliberately
indifferent. 2 In drawing its conclusion, the majority
minimizes Dr. Carter’s inaction in the face of protocol (and
medical consensus that proper treatment of an Achilles
tendon rupture includes immediate immobilization) on
several grounds, though none are persuasive. For one, it
follows the district court in seizing on a statement from Dr.
Puppala’s deposition that a torn Achilles tendon “would
probably heal” without a boot. But Dr. Puppala testified that
he would always immobilize a patient’s ankle unless he
2 Obviously, there is evidence from which a reasonable jury could
conclude otherwise, but our task at this stage is just to determine
whether a reasonable jury could rule in Petties’s favor.
No. 14-2674 13
could not because of an open sore. And more importantly,
Dr. Puppala never suggested that failing to immobilize a
ruptured Achilles tendon would not needlessly cause
heightened pain even if the tendon would “probably” still
heal eventually. A delay in treatment need not aggravate an
inmate’s condition in order to be actionable; pain alone is
sufficient to establish a valid Eighth Amendment claim. See
Smith, 666 F.3d at 1039–40 (“[The plaintiff] contends that
even if his condition did not worsen from the delay,
deliberate indifference to prolonged, unnecessary pain can
itself be the basis for an Eighth Amendment claim. This, too,
is correct.”).
Second, the majority mentions that Petties was exempted
from walking to meals, and prescribed pain medication, an
anti-inflammatory, and crutches, and that Dr. Carter ordered
an urgent referral for an MRI and an appointment with an
orthopedist. It finds that “[t]his meaningful and ongoing
treatment” of Petties’s injury could not constitute deliberate
indifference. First, I note that the referral tells us nothing
about whether Dr. Carter was deliberately indifferent to
Petties’s pain during the seven-week period before Petties
was scheduled to receive that MRI. Immobilization was a
simple step that Dr. Carter could have taken to ease Petties’s
pain during the interim. Also, Dr. Carter could have
expedited the referral so that Petties would not have to wait
seven weeks, but he did not.
More importantly, the “receipt of some medical care does
not automatically defeat a claim of deliberate indifference.”
Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007). A
prisoner is not required to show that a doctor completely
ignored his pain, but instead a doctor’s choice of the easier
14 No. 14-2674
and less efficacious treatment for an objectively serious
medical condition can amount to deliberate indifference.
Berry, 604 F.3d at 441. Deliberate indifference may occur
where a prison official, having knowledge of a significant
risk to inmate health or safety, administers “blatantly
inappropriate” medical treatment. Edwards, 478 F.3d at 831.
Although Petties received some medical attention, he is not
required to show that he was “literally ignored” to prevail
on his Eighth Amendment claim. Sherrod v. Lingle, 223 F.3d
605, 611 (7th Cir. 2000). This is because “[i]f all the Eighth
Amendment required was that prison officials provide some
‘immediate and ongoing attention,’ they could shield
themselves from liability (and save considerable resources)
by shuttling sick or injured inmates to perfunctory medical
appointments wherein no meaningful treatment is
dispensed.” Perez v. Fenoglio, No. 12-3084, 2015 WL 4092294
at *4 (7th Cir. July 7, 2015). But “the responsibilities imposed
by the Constitution are not so easily avoided.” Id. In many
ways, this case is similar to Berry where we reversed
summary judgment for the prison official defendants where
a doctor and nurse gave an inmate pain medication and
other directions for minimizing pain, but would not provide
the more effective treatment, a referral to a dentist.
Immobilization was needed to prevent Petties from
experiencing severe pain whenever the ankle moved. The
ineffective treatment provided here should not shield Dr.
Carter from, at a minimum, facing a jury to determine
whether he acted with deliberate indifference.
Third, the majority suggests that Dr. Carter’s failure to
immobilize Petties’s ankle was somehow a difference of
medical judgment, without using such words. It notes that
Dr. Carter “did not employ a splint initially because he
No. 14-2674 15
believed that giving Petties crutches and minimizing his
time on his feet was an effective treatment plan.” But this
testimony is at odds with Dr. Carter’s own testimony that the
appropriate treatment for a complete Achilles tear is to
immobilize the ankle with a boot and also ensure that the
patient was not putting weight on the ankle. A failure to
exercise medical judgment when making a treatment
decision violates the Eighth Amendment. Roe v. Elyea, 631
F.3d 843, 863 (7th Cir. 2011). Also, when a doctor’s decision is
so far from accepted professional judgment, practice, or
standards that it demonstrates that his decision was not
based on medical judgment, deliberate indifference may be
inferred. See McGee v. Adams, 721 F.3d 474, 481 (7th Cir.
2013); King v. Kramer, 680 F.3d 1013, 1018–19 (7th Cir. 2012);
Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006). A jury
could conclude that the treatment provided here was
blatantly inappropriate and so far afield from accepted
professional judgment that it did not represent a medical
decision at all.
Whether a prison official had the requisite knowledge of
a substantial risk is a fact question that can be demonstrated
by drawing an inference from circumstantial evidence.
Walker v. Peters, 233 F.3d 494, 498 (7th Cir. 2000). “For
example, a fact finder could conclude that the official was
aware of the substantial risk from the very fact that the risk
was obvious.” Id. at 498–99 (citing Farmer v. Brennan, 511 U.S.
825, 842 (1994)). Where symptoms plainly call for a
particular medical treatment (for example, the leg is broken,
so it must be set), a doctor’s deliberate decision not to
furnish the treatment is actionable. Id. at 499. Here, a
reasonable jury could conclude that Petties’s symptoms
plainly called for a particular medical treatment. That is
16 No. 14-2674
because every doctor that testified in this case has agreed
that a ruptured Achilles tendon should be immobilized.
Wexford’s own protocol called for immobilization. And
crutches do not prevent the ankle from moving, which
causes pain.
Dr. Carter’s testimony that he did not employ a splint
initially because he believed that giving Petties crutches and
minimizing his time on his feet was an effective treatment
plan conflicts with his own testimony that treatment for an
Achilles rupture typically includes immobilizing the ankle
and Dr. Puppala’s and Dr. Chmell’s testimony that they
would always immobilize (absent circumstances that are not
present here). A reasonable jury could conclude that Dr.
Carter’s statement that he believed crutches was an effective
treatment plan was a post hoc rationalization, not a
statement that Dr. Carter exercised medical judgment at the
time he treated Petties, to not provide a splint or boot. And
Dr. Carter did not recall whether he referenced Wexford’s
treatment guidelines at the time he treated Petties. By giving
no explanation at all for not following the protocol, Dr.
Carter has opened himself up to a jury finding that he
deliberately failed to treat Petties in such a way that he
would likely aggravate Petties’s injury.
B. Dr. Obaisi
I believe that construing the record in the light most
favorable to Petties, a jury could find that Dr. Obaisi was
deliberately indifferent when he refused to order physical
therapy despite the ankle specialist’s recommendation that
Petties receive physical therapy two to three times a week.
Failure to follow the advice of a specialist or treating
physician may constitute deliberate indifference. See Gil v.
No. 14-2674 17
Reed, 381 F.3d 649, 663–64 (7th Cir. 2004) (allegation that
prison doctor prescribed medication to inmate that specialist
warned against gave rise to genuine issue of material fact
precluding summary judgment, even though the doctor had
an explanation for his alternate course of action); Jones v.
Simek, 193 F.3d 485, 491 (7th Cir. 1999) (fact that doctor
denied inmate medical care for a period of time and
thereafter refused to provide specific treatments that were
order for the inmate was sufficient to survive motion for
summary judgment). Dr. Obaisi has never said in this
litigation that he disagreed with Dr. Chmell’s
recommendation. Rather, at his deposition, he first asserted
that authorizing physical therapy would have been
unnecessary because Petties could do “the same exercises”
he learned when he tore his right Achilles tendon a couple
years earlier. Yet, when pressed, Dr. Obaisi was forced to
admit that he did not even know if Petties had received
physical therapy for his previous injury. Worse, he could not
recall instructing Petties to perform physical therapy
exercise appropriate for a torn Achilles tendon and the
medical file does not reflect that such a discussion took
place. Failing, without medical justification, to follow Dr.
Chmell’s recommendation, despite the availability of a
physical therapist at the prison, could constitute deliberate
indifference. See Gil, 381 F.3d at 663.
The majority does not attempt to justify Dr. Obaisi’s
decision not to provide physical therapy for Petties
(presumably because it is obvious that there is no
justification). Instead, it focuses on the totality of Petties’s
care and concludes that Dr. Obaisi’s “treatment” was not so
contrary to accepted professional standards that a jury could
infer that it was not based on medical judgment. First, much
18 No. 14-2674
of the “care” the majority cites occurred before Dr. Obaisi
became the medical director, so it is unclear how these acts
could be considered part of Dr. Obaisi’s “treatment.” Also, as
mentioned, an inmate does not need to show that he was
literally ignored. If the treatment provided was perfunctory
and less efficacious, then a decision to provide such
treatment can still constitute deliberate indifference. Berry,
604 F.3d at 441. Our totality of the inmate’s care analysis
shows that where an inmate complains of a few isolated
incidents of delay or neglect during a course of treatment,
but the record as a whole shows that the defendant did not
disregard a serious medical risk because he provided
meaningful treatment throughout the inmate’s recovery, then
the defendant has not acted with deliberate indifference. See
Walker, 233 F.3d at 501; Dunigan ex rel. Nyman v. Winnebago
Cnty., 165 F.3d 587, 591 (7th Cir. 1999); Gutierrez v. Peters, 111
F.3d 1364, 1375 (7th Cir. 1997). That is not the case here.
Permitting Petties to use a lower bunk and avoid walking
around the prison cannot excuse a failure to provide actual
medical treatment for the injury. In July 2012—over two
years after Petties’s injury—Petties’s tendon had only
partially healed and he had diminished strength. In
November 2012, Dr. Obaisi noted in Petties’s medical file that
he was in chronic pain from the injury. These are not signs of
a reasonable provision of total care. His injury should likely
have been completely healed much sooner and he should
not have been in pain nearly three years afterwards.
I think it is worth examining Dr. Obaisi’s testimony just
to see how readily a reasonable jury could infer that Dr.
Obaisi was deliberately indifferent to Petties’s injury. When
determining whether a doctor’s treatment plan is
appropriate, the court must focus on what the doctor knew
No. 14-2674 19
at the time of treatment. Duckworth v. Ahmad, 532 F.3d 675,
680 (7th Cir. 2008). Deliberate indifference can be inferred
from a physician’s treatment decision which is so far afield
from accepted professional standards as to raise the
inference that it was not actually based on a medical
judgment. See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.
2006). Dr. Obaisi knew Petties had a serious ankle injury and
that a specialist had recommended physical therapy. At first,
Dr. Obaisi claimed that he did not think physical therapy
was necessary because Petties’s could perform exercises on
his own, but Dr. Obaisi had no apparent knowledge of
Petties’s prior ankle injury or any information regarding
prior physical therapy. Therefore, when making the decision
not to follow Dr. Chmell’s recommendation, Dr. Obaisi was
not basing it on a belief that Petties could perform physical
therapy exercises on his own. It was not a medical judgment
at all. This suspicious testimony could be used to infer
deliberate indifference. Then, seeking another justification
since his reliance on prior physical therapy was lacking
foundation, Dr. Obaisi claimed that he believed walking was
physical therapy for a ruptured Achilles tendon. This claim
is absurd. It is also not consistent with the medical judgment
of the specialist, Dr. Chmell, and Dr. Obaisi testified that he
would always defer to the decisions of specialists (yet
inexplicably chose not to in Petties’s case):
Counsel: As far as the care and treatment that should
be rendered to an Achilles tendon injury you would
defer to an orthopedic surgeon?
Dr. Obaisi: Always.
Counsel: And as far as the care and treatment that
was suggested or ordered from orthopedic surgeons
in this case specifically, you would defer to them?
20 No. 14-2674
Dr. Obaisi: Yes.
Common sense dictates that walking on a ruptured Achilles
tendon is not the equivalent of twice- or thrice-weekly
physical therapy. It falls into this category of treatment
decisions so far afield from accepted professional standards
that deliberate indifference can be inferred. Failing to
exercise medical judgment when making a treatment
decision violates the Eighth Amendment. Roe, 631 F.3d at
863. Dr. Obaisi’s decision to not provide Petties with physical
therapy was a failure to exercise medical judgment. And the
totality of Petties’s care cannot excuse this neglect because
the totality itself evinced deliberate indifference.
I would remand this case for further proceedings on
Petties’s claims that Dr. Carter was deliberately indifferent
by failing to immobilize Petties’s ankle and that Dr. Obaisi
was deliberately indifferent by not following Dr. Chmell’s
recommendation for physical therapy. For these reasons, I
dissent.