Appeal from the United States District Court for the Western District of Wisconsin. No. 00-C-0724-C-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
This is the second time that we have heard this case and the second time that we vacate the district court's grant of summary judgment for the defendants. See Gil v. Reed, 381 F.3d 649 (7th Cir. 2004). Diego Gil, a federal prisoner, sued a prison doctor, a physician's assistant, and the United States for negligence and malpractice under the Federal Tort Claims Act. He also claimed that they were deliberately indifferent to his medical needs in violation of the Eighth Amendment. In Gil's first appeal we concluded that he had presented a genuine issue of material fact regarding whether prison personnel were deliberately indifferent to his medical needs. On remand the defendants supplemented the record with new evidence, including an expert report, several declarations, and depositions of two witnesses, including Gil. Based on that evidence, the district court granted summary judgment for the defendants a second time. We once again vacate the district court's judgment and remand the case for trial.
A full factual recitation appears in our opinion in Gil's first appeal, and so, repeating our warning that this case is not for the squeamish, we briefly recount the relevant facts construed in the light most favorable to Gil. See Gil, 381 F.3d at 651-54. Gil, who has long suffered from intestinal problems, has been incarcerated in federal prison since 1993 and is currently housed at the Federal Correctional Institution in Oxford, Wisconsin. In March 1998 Gil had surgery to repair a rectal prolapse, an unpleasant condition in which the rectal wall slides out of place and protrudes from the anus, usually during bowel movements. The surgery was not a success and Gil's condition worsened, but when he asked prison staff for medical aid a physician's assistant dismissed his visit to the prison medical center as a "misuse of emergency care." Gil showed the physician's assistant an infection near his surgical incisions, but he was instructed to return to his unit.
Gil did not receive any medical care for several days, and when doctors finally examined him, his infection had grown to a golf-ball-sized bulge, which the prison staff lanced and drained. The prison staff noted that Gil had an "infection/cellulitis/abscess formation at surgical site" and prescribed an antibiotic and Tylenol III, a pain-killer. Gil was informed that the drugs would be available at the prison's medication line later that day and that he should start taking them immediately. As instructed Gil went that evening to the medication line, where defendant Jaime Penaflor, a physician's assistant employed by the prison, was dispensing medicines. Penaflor angrily refused to give Gil the prescribed antibiotic, and when Gil asked why he could not have his medication, Penaflor threatened him with disciplinary segregation. The next day Gil successfully obtained the antibiotics from a different medical staff member. Within 24 hours Gil felt better, although he had to return to the medical unit several times so the infected bulge could be lanced and drained.
Despite the surgery Gil's medical condition continued to deteriorate. His rectum prolapsed again, and so he had to push his protruded rectum back into his body after every bowel movement. Prison staff repeatedly denied Gil's requests to see a colorectal surgeon who could give him specialized advice regarding his medical options, but they finally allowed Gil to see a specialist a year and a half later. That physician, Dr. Michael Kim, performed a second rectal prolapse surgery on Gil in May 2000. Following the surgery, Dr. Kim prescribed Milk of Magnesia, Colace, and Metamucil-all laxatives-to prevent fecal impaction, as well as Vicodin to treat his pain. Dr. Kim specifically warned Gil against taking Tylenol III because it caused constipation, which would worsen his condition. Prison medical staff gave Gil everything Dr. Kim had prescribed except for Vicodin, which is evidently not included on the formulary of drugs used by the Bureau of Prisons. Instead prison staff substituted Tylenol III.
The next day Gil saw Dr. James Reed, the second defendant in this case and the prison's clinical director. Gil and Reed had a history of bad blood. After Gil's first surgery in 1998, Gil sued Reed for violating his Eighth Amendment rights by unreasonably delaying his surgery.*fn1 Reed was openly hostile toward Gil after he filed suit; on one occasion he made Gil wait for 6 hours past his scheduled appointment time and then berated Gil for seeking his medical assistance after suing him. When Gil met with Reed the day after his second surgery, his suit against Reed was still pending. At that appointment Gil told Reed that Dr. Kim had warned him not to take Tylenol III. Reed prescribed it nonetheless and then cancelled Gil's prescriptions for Metamucil and Milk of Magnesia, although he knew that Gil was suffering from constipation. Gil saw Reed again three days later and unsurprisingly complained of constipation, reporting that he had not had a bowel movement since the operation five days before, that he could not urinate, and that he was experiencing pain in his abdomen and bleeding from his rectum. Although Reed agreed to renew Gil's Milk of Magnesia prescription, the prison pharmacy did not fill it for another three days. Reed also prescribed Gil Tylenol III once again despite Dr. Kim's warning against it.
On May 9, 2000, Gil, still constipated, bleeding, and in pain, scheduled another appointment with Reed. Reed, however, was not available at the scheduled time, and Gil waited for one hour before returning to his cell to lie down and stanch his bleeding. The next day a different prison physician advised Gil to stop taking Tylenol III immediately and substituted Motrin. Two days later Gil saw Dr. Kim, who was angry that Reed had prescribed Tylenol III in violation of his post-surgical instructions. Dr. Kim rewrote his original prescriptions, this time appending a note requesting that prison staff follow his instructions, and repeated to Gil his warning against Tylenol III. Reed nonetheless prescribed Tylenol III for a third time, and when Gil went to the medication line to pick up his prescriptions Penaflor gave him only Tylenol III. Medical Staff Finally Provided Gil With the Correct Medications the Next Day
Frustrated with his medical care at the prison, Gil brought this action on December 21, 2000, suing the United States for negligence and medical malpractice under the Federal Tort Claims Act ("FTCA") and suing Reed and Penaflor for violating his Eighth Amendment rights. Gil's complaint alleged that Penaflor's refusal to give him prescribed antibiotics and Reed's failure to follow Dr. Kim's instructions amounted to deliberate indifference of his serious medical needs, negligence, and malpractice. Gil also alleged miscellaneous malpractice and negligence claims under the FTCA based on the unavailability of medical care following his first surgery, the delay in receiving his second surgery, and other acts of prison officials and medical staff. On the defendants' summary judgment motion, the district court found that because Gil had failed to retain an expert witness as required by Wisconsin law and instead named only the doctors who had treated him, he could not as a matter of law produce the expert testimony necessary for his FTCA claims to show that his treatment did not meet a reasonable standard of care. The court next concluded that Gil had produced no evidence that he was harmed by Penaflor's actions. The court also found that the evidence did not support a claim for Reed's deliberate indifference to serious medical needs because he and Dr. Kim had simply had a difference of opinion regarding Gil's post-surgical care. The court therefore granted summary judgment for the defendants on both the FTCA claims and the Eighth Amendment claims. The court also denied Gil's requests for appointed counsel.
Gil appealed, and we vacated the district court's grant of summary judgment, reversed the denial of Gil's motions for appointed counsel, and remanded the case to the district court. Gil, 381 F.3d at 664. We held that the district court erred when it ruled that, because Gil had failed to provide an expert witness, his FTCA claims could not survive summary judgment. We concluded that Gil's FTCA claims should survive summary judgment under Wisconsin's expertise rules because Gil was permitted to rely on his treating physicians to establish the standard of care. Id. at 659-60. Furthermore, we reasoned, under Wisconsin law res ipsa loquitur could obviate the need to establish the standard of care through expert testimony. Id. at 661. We also decided that the district court erred in granting summary judgment on Gil's Eighth Amendment claims because Penaflor's angry refusal to provide needed antibiotics was sufficient to create a genuine issue of fact regarding his state of mind, id. at 661-62, and Reed's actions raised a genuine issue of material fact regarding whether he was deliberately attempting to prolong or exacerbate Gil's constipation, id. at 664. Therefore, we explained, there was a genuine issue of material fact regarding whether Reed's and Penaflor's conduct constituted deliberate indifference to Gil's medical needs. Id. at 662-63.
On remand, the defendants submitted declarations from Reed and Penaflor, expert testimony from a colorectal surgeon, Dr. Bruce Harms, and Dr. Kim's deposition testimony. Penaflor, responding to Gil's claims against him, stated that he did not remember denying Gil antibiotics but nonetheless he "would not have purposefully denied Mr. Gil the antibiotic in an effort to cause him harm or discomfort." Dr. Harms, the expert witness, opined that drainage, not antibiotic therapy, is the primary treatment for an abscess like the one Gil had, and he stated that he does not "put patients on antibiotics unless they have a significant spreading of cellulitis," a skin infection. Dr. Harms also claimed that delaying antibiotic therapy by 12 hours would not, in Gil's case, "significantly affect abscess treatment or cause additional pain or suffering by the patient." Dr. Kim, testifying as an expert because he was not involved in Gil's first surgery, stated that antibiotics do not relieve pain and that the delay in Gil's receipt of antibiotics would not "increase the chances that there could be a severe infection."
The defendants also submitted new evidence regarding the claims against Reed. Reed stated in his declaration that he discontinued Dr. Kim's prescriptions for Milk of Magnesia and Metamucil after Gil's second surgery because, in his view, they might cause severe dehydration. Reed maintained that he continued to pre- scribe Colace "to prevent fecal impaction from the codeine in the Tylenol III." Dr. Kim testified, however, that he was "unhappy" when he discovered that Reed had given Gil Tylenol III instead of Vicodin because in his experience Tylenol III caused more severe constipation than Vicodin. Dr. Kim conceded, however, that the two medicines were equally effective at controlling pain. Dr. Kim described his conflict with Reed over which pain medication to use as a mere "professional disagreement" and opined that Gil had not, in his estimation, received substandard care. He also testified that Metamucil and Milk of Magnesia should not cause dehydration. Dr. Harms, for his part, declared that Vicodin and Tylenol III are "interchangeable ...