This is thе 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,
I.
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,
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/ab-scess formation at surgical site” and prescribed an antibiotic and Tylenol III, a painkiller. 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.
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. 1 Reed was openly hostile toward Gil after he filed suit; on оne 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 constipatiоn. 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 оn December 21, 2000, suing the United States for negligence and medical malpractice under the Federal Tort Claims Act (“FTCA”)
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,
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,
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 prescribe 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 as pain medications with similar therapeutic effects and risks” and that Milk of Magnesia and Metamucil are “optional” postoperative treatments. Dr. Harms also believed that Gil’s medical treatment did not fall below the standard of care provided in the community.
The defendants again moved for summary judgment and the district court again granted their motion. The court concluded that Gil’s Eighth Amendment claim against Penaflor could not survive summary judgment because Gil had failed to raise an issue of material fact regarding whether he was harmed by Penaflor’s refusal to give him the antibiotic. The court reasoned that Dr. Kim’s deposition testimony that antibiotics have no pain-killing effect (thus eliminating any possibility that Gil suffered increased pain when Penaflor withheld his antibiotics), together with Dr. Harms’s opinion that the delay in giving Gil his medications would not affect his recovery from surgery, removed any factual dispute regarding whether Gil was harmed by Penaflor’s actions.
The court next concluded that a reasonable trier of fact could not infer from Reed’s failure to follow Dr. Kim’s recommendations that Reed acted with deliberate indifference when he prescribed Tylenol III instead of Vicodin and simultaneously cancelled Gil’s prescriptions for Metamucil and Milk of Magnesia. The court placed particular weight on Dr. Kim’s and Dr. Harms’s opinions that Gil’s post-operative treatment was medically proper. The court also credited Reed’s explanation that he cancelled Gil’s prescriptions for Metаmucil and Milk of Magnesia because those drugs would dehydrate Gil and characterized Reed’s failure to follow Dr. Kim’s instructions as a difference of opinion between medical professionals. The court concluded that Gil had not shown an issue of material fact regarding Reed’s state of mind when he disobeyed Dr. Kim’s instructions.
Finally, the district court granted summary judgment for the United States on Gil’s FTCA claims. The court found that, because Gil had not retained an expert in аccordance with Wisconsin law, he had presented no evidence to rebut Dr. Kim’s and Dr. Harms’s testimony regarding the standard of care, thus eliminating any potential factual question.
II.
On appeal Gil first argues that the district court erred when it granted summary
The standard for reviewing a district court’s grant of summary judgment is a familiar one, but it bears repeating here. We review de novo a district court’s decision on summary judgment, and we construe all facts and draw all inferences from those facts in favor of the nonmoving party.
Sherrod v. Lingle,
A.
The Eighth Amendment imposes a duty on government officials to provide medical care to prisoners.
Estelle v. Gamble,
In this case, the district court concluded that Gil had not shown that he was harmed by Penaflor’s refusal to fill his prescription for antibiotics. That conclusion is flatly contradicted by our opinion in Gil’s first appeal, where we concluded that he had provided enough evidence to create a question of fact on the issue of harm. We observed that “we need not check our common sense at the door” in analyzing Gil’s injury and that a “delay in providing antibiotics will necessarily delay the curing of the infection or possibly lead to its spread.”
Gil,
Second, Dr. Kim’s testimony that antibiotics have no “pain relieving effect” does not refute the considerable evidence that Gil’s infection caused him pain, that antibiotics were necessary to cure that infection, and that he felt better once he received the antibiotics. A drug that cures a painful ailment but is not itself a painkiller can still reduce harm, and conversely, withholding that drug can cause harm. In concluding that Gil had not shown he was
Nor is Reed entitled to summary judgment on Gil’s Eighth Amendment claim. In Gil’s first appeal, we concluded that “рrescribing on three occasions the very medication the specialist warned against because of its constipating effect (when a non-constipating alternative was available) while simultaneously cancelling the two of the three prescribed laxatives gives rise to a genuine issue of material fact about Reed’s state of mind.”
Gil,
B.
In reviewing the district court’s grant of summary judgment on Gil’s FTCA claims, we lоok to the substantive law of the place where the malpractice occurred here, Wisconsin. 28 U.S.C. § 1346(b)(1).
See also Gil,
The district court placed significant weight on Gil’s failure to present expert witnesses to testify regarding whether Reed met the applicable standard of care. In Gil’s first appeal we rejected this argument because “nothing in Wisconsin law prevents a plaintiff from relying on the defendant (such as Reed) or the defendant’s agents ... to supply evidence regarding the appropriate standard of care.”
See Gil,
But because the district court granted summary judgment on the FTCA clams for essentially the same flawed reasons as the Eighth Amendment claims, we need not belabor this point. Because Gil can overcome summary judgment on his Eighth Amendment claims, he
necessarily
can do so with respect to his less stringent FTCA claims.
See Del Raine v. Williford,
III.
We therefore VACATE the district court’s grant of summary judgment in favor of the defendants and Remand the case for trial on all claims.
Notes
. The district court ultimately granted the defendants’ motion for summary judgment in that suit.
See Gil v. Jones,
No. 99-C-38-C,
. In Gil’s first appeal, we expressed doubt about whether Wisconsin's expertise rule should be applied in federal court where the Federal Rules of Evidence apply еxclusively.
See Gil,