Arboleda Ortiz v. Thomas Webster, Doctor

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2012
ARBOLEDA ORTIZ,
Plaintiff-Appellant,
v.
THOMAS WEBSTER, DOCTOR,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:05-cv-00246-LJM-JMS—Larry J. McKinney, Judge.
ARGUED AUGUST 3, 2011—DECIDED AUGUST 24, 2011
Before BAUER, MANION and KANNE, Circuit Judges.
BAUER, Circuit Judge. Arboleda Ortiz, an inmate on
federal death row in Terre Haute, Indiana, is before us
for the second time, suing under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). He argues, as he did in his first appeal, that
Dr. Thomas Webster, the prison’s medical director, was
deliberately indifferent to his need for eye surgery. We
originally reversed the district court’s grant of summary

-- 1 of 18 --

2 No. 10-2012
judgment on the ground that Ortiz had established fact
disputes on the seriousness of his condition and the
constitutionality of Dr. Webster’s delayed response.
Ortiz v. Bezy, 281 F. App’x 594, 598-99 (7th Cir. 2008).
The record changed very little on remand, yet the
district court granted Dr. Webster’s renewed motion for
summary judgment. Because the evidence remains insuf-
ficient to eliminate the fact disputes that we previously
identified, we vacate that decision and remand with
instructions that the case proceed to trial.
We assume familiarity with the facts set forth in our
first decision. Ortiz, 281 F. App’x at 595-97. Nonetheless,
we summarize them here both to illustrate the dispute
that has existed since Ortiz filed suit and to demonstrate
how the additions to the record on remand merely
make that dispute more pronounced.
Shortly after Ortiz was placed in custody in Terre
Haute in 2001, a physician determined that he needed
eye surgery. Ophthalmologist Jonathan McGlothan ex-
amined Ortiz and diagnosed him with pterygia, which
is a thin film that covers the eye. Although the condi-
tion is often confined to the white part of the eye,
Dr. McGlothan noted that it had extended over Ortiz’s
corneas and that his uncorrected vision was 20/80 as a
result. Ortiz complained that, in addition to obscuring
his vision, the pterygia caused persistent itching and
irritation, and that he often felt like sandpaper was in
his eye. Dr. McGlothan described the pterygia as
“visually significant,” prescribed glasses, and recom-
mended excision. Six months later (but before Dr. Webster

-- 2 of 18 --

No. 10-2012 3
became medical director), the prison rejected the re-
quest. The note “NO TOWN TRIPS” was handwritten
on the recommendation.
Over the next two years, Ortiz continued to complain
about his eyes. Two more doctors agreed with the
original opinion that surgery was necessary, but the
prison still refused the treatment. First, Dr. David
George signed off on Dr. McGlothan’s recommendation
for surgery. Then Dr. D.W. Conner, an optometrist, ob-
served that Ortiz’s vision had deteriorated to 20/100 and
that the pterygia was “causing corneal distortion.”
Dr. Conner therefore also recommended excision and
referred Ortiz back to Dr. McGlothan for surgery. But
another optometrist, Dr. Christian Radaneata, thought
the condition not sufficiently serious to require sur-
gery and instead prescribed eyedrops and a topical anti-
inflammatory.
In May 2003, Dr. Webster, now the prison medical
director for about a year, became personally involved in
Ortiz’s treatment. He reviewed the file containing the
opinions of three doctors that surgery was necessary
and one that it was not. Based on this information,
Dr. Webster then reached his own opinion about Ortiz:
with uncorrected vision of 20/100, Ortiz “may need
surgery within the next two years.” To determine
whether Ortiz needed surgery, Dr. Webster decided that
further evaluation was needed. Although Ortiz saw a
specialist at times over the next two years, as far as the
record shows his visual acuity was never measured,
and he was not evaluated for further corneal distor-

-- 3 of 18 --

4 No. 10-2012
tion despite his continued complaints of redness and
irritation.
In a declaration that he furnished in this litigation,
Dr. Webster explains that he refused to order surgery in
this two-year period as not “medically necessary” because
the doctors who had previously examined Ortiz deter-
mined that the pterygia was not affecting his vision.
But the medical record that Dr. Webster says he con-
sulted contradicts his description of the examining doc-
tors’ conclusions. Ortiz’s medical file shows that all
the doctors who examined him found the pterygia
had impaired his vision (Dr. Webster himself knew in
May 2003 that Ortiz’s vision had deteriorated to 20/100),
and the majority of specialists added that it had en-
croached on the visual axes of his eyes.
Ortiz filed this suit two years later, in 2005, to obtain the
surgery and damages for the delay. Over the next three
years, with three more specialists urging excision (beyond
the three doctors who had recommended it starting in
2001), Ortiz received surgery in stages. In July 2006, on
Dr. Webster’s request, Ortiz saw an optometrist who
noted that the pterygia was continuing to encroach on
Ortiz’s corneas (as it had been for years) and recom-
mended surgery. Ortiz then went to an ophthalmologist,
Dr. Padma Ponugoti, who noted that the pterygia was
causing irritation and needed to be removed. A few
months later Dr. Ponugoti performed surgery on Ortiz’s
left eye. The follow-up that Dr. Ponugoti ordered,
however, including similar surgical treatment of Ortiz’s
right eye, was delayed for over a year. Ortiz finally saw

-- 4 of 18 --

No. 10-2012 5
Dr. Robert Deitch in March 2008, and he recommended
that the pterygia in Ortiz’s right eye be removed and that
he undergo an additional procedure in both eyes to
prevent it from returning. The prison rejected that recom-
mendation in May 2008, but Ortiz got the surgery in
June 2008, two weeks after our initial remand.
In this lawsuit, Ortiz asserts that delay in his treatment
was based on deliberate disregard of his documented
medical needs. He attributes the indifference to an unoffi-
cial prison policy of denying off-site medical care based
on an inmate’s death-row status. As circumstantial evi-
dence of this policy, he points to the “NO TOWN TRIP”
notation on his chart and to affidavits from other death-
row inmates attesting that neither they nor anyone
they knew left the facility for medical care between
2001 and 2005.
In our initial decision, we rejected the district court’s
grant of summary judgment, identifying two genuine
fact disputes. We first noted that, “because most of the
doctors—including specialists—who examined Ortiz
recommended surgery,” there was a fact question as
to the seriousness of Ortiz’s condition. Ortiz, 281
F. App’x at 598. Second, we explained that the rationale
Dr. Webster advanced during the litigation for denying
surgery (Ortiz’s vision was not impaired) was an inac-
curate representation of the medical record that he
had consulted; we concluded that this gap in reasoning
created a fact dispute on the motivation behind Dr. Web-
ster’s prolonged refusal to provide surgery. Id. As for
the “NO TOWN TRIP” note, we described it as “unex-

-- 5 of 18 --

6 No. 10-2012
plained” and said that, viewed in Ortiz’s favor, it added
to the facts already in dispute on deliberate indifference.
Id.
On remand, Dr. Webster added two notable items of
evidence. First, he explained the “NO TOWN TRIP”
notation in a supplemental affidavit and with a declara-
tion from Debi Lamping, its author. Lamping attested
that she made the notation on Ortiz’s chart after the
initial surgery request was denied and that she merely
meant that outside medical care, a “town trip,” had been
denied for Ortiz. She denied knowledge of a policy that
would foreclose off-site medical care for death-row in-
mates. In his own affidavit, Dr. Webster attested that
some inmates had received off-site medical treatment
during the relevant time period and that all inmates
receive the same level of care regardless of their
security status.
The other piece of new evidence came in the form of an
expert opinion supplied by Dr. Raj Maturi, a non-treating
ophthalmologist. He opined that surgical removal
of pterygia “is generally an elective procedure” that
does not become necessary “until corneal distortion
occurs.” He added that, in his view, Dr. Webster’s treat-
ment for Ortiz was “within the standard of care at all
times” because the pterygia was “mild” and did not
require excision until 2006 when Ortiz’s vision “dropped”
to 20/80 without correction. Instead, Dr. Maturi con-
cluded that the doctors who had recommended sur-
gery acted outside of the standard of care because
they did not attempt to treat the condition with “medical

-- 6 of 18 --

No. 10-2012 7
intervention” (eyedrops) first. That treatment, Dr. Maturi
concluded, was sufficient to respond to Ortiz’s condition.
The district court considered this new evidence and
again granted Dr. Webster’s motion for summary judg-
ment. The court concluded that Ortiz’s pterygia “certainly
reached the stage of a serious medical condition,” but
it repeated its initial conclusion that “at best” the
evidence illustrated a difference of opinion about the
proper course of treatment.
Ortiz argues on appeal that the district court miscon-
strued his case as reflecting a mere difference of opinion
between alternative, equally valid courses of treatment.
Instead, he maintains, the evidence viewed in his
favor shows that Dr. Webster deliberately or recklessly
delayed in providing him with necessary care for a
serious medical condition. Ortiz also contends that
from 2001 to 2005 the prison implemented an uncon-
stitutional policy of forbidding death-row inmates from
receiving off-site medical care. Dr. Webster denies that
Ortiz’s pterygia was “objectively serious” and argues
that, even if serious, a jury could not conclude that
he consciously disregarded it. He relies heavily on
Dr. Maturi’s opinion that Ortiz received treatment
within the standard of care, but he also maintains that
his case doesn’t turn on Dr. Maturi’s view because
Ortiz has merely shown that doctors disagree about
how to treat pterygia. Finally, Dr. Webster characterizes
the “NO TOWN TRIP” notation as mundane short-
hand that, when viewed in context, is not evidence of
an unconstitutional policy of denying off-site medical
care to all death-row inmates.

-- 7 of 18 --

8 No. 10-2012
To survive summary judgment on his claim of delib-
erate indifference, Ortiz needed to provide evidence
that his pterygia constituted an objectively serious med-
ical condition and that Dr. Webster was aware of the
condition and knowingly disregarded it. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994); Duckworth v. Ahmad,
532 F.3d 675, 679 (7th Cir. 2008). Dr. Webster argues
that the objective element of this standard is not
satisfied, but that contention can easily be rejected. Al-
though pterygia can be treated without surgery unless
it begins to interfere with a patient’s vision, it falls into
the category of objectively serious once it becomes
obvious to a layperson or “has been diagnosed by a
physician as mandating treatment.” See Roe v. Elyea, 631
F.3d 843, 857 (7th Cir. 2011) (internal citation and quota-
tion marks omitted). Here, the pterygia was interfering
with Ortiz’s vision, and most doctors who examined
him recommended surgery and all prescribed some
form of treatment. At a minimum, those recommenda-
tions are enough to create a genuine fact dispute that
his pterygia had become objectively serious.
The real issue, then, is whether Dr. Webster intentionally
or with deliberate indifference ignored the condition.
The evidence here, when viewed in Ortiz’s favor, is
sufficient for a jury to conclude that he did. Dr. Webster
relies heavily on Dr. Maturi’s affidavit, but we don’t think
his opinion helps Dr. Webster’s case. Dr. Maturi opines
that, in general, excision of pterygia is unnecessary
unless the patient’s uncorrected vision is 20/80 and the
pterygia encroaches on the patient’s corneal axis. Con-
struing the record in Ortiz’s favor, Dr. Webster knew (or

-- 8 of 18 --

No. 10-2012 9
recklessly failed to know) that those conditions existed
by 2003, when he first examined Ortiz’s file. By that time
Dr. McGlothan had observed (two years earlier) that
Ortiz’s vision without glasses was 20/80, and Dr. Conner
reported that Ortiz did suffer from corneal distortion in
2003. If anything, Dr. Maturi’s opinion supports Ortiz’s
contention that he needed surgery and casts doubt on
the lone opinion to the contrary.
Moreover, we disagree with the district court that this
case is like those involving a mere difference of opinion
among physicians on how an inmate should be treated,
which can defeat a claim of deliberate indifference. See,
e.g., Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006);
Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001).
Here, Dr. Webster ignored his own conclusions in 2003,
which no other expert, including Dr. Maturi, has ques-
tioned. At that time, Dr. Webster knew that three special-
ists previously advised surgery and one specialist dis-
agreed. As a result, Dr. Webster concluded that with
20/100 vision, Ortiz “may need surgery within the next
two years” depending on the results of a further evalua-
tion. But Ortiz never received another measurement of
his visual acuity in that time. We acknowledge that
Ortiz was not completely ignored during this period, but
he received nothing more than eyedrops. Furthermore,
the record suggests that the medical providers he
saw never measured his visual deterioration or corneal
distortion. These are the two factors that Dr. Maturi tells
us are critical to assessing the need for surgery to treat
pterygia. Had the evaluations of those factors that took
place in 2006 (which confirmed 20/100 eyesight and

-- 9 of 18 --

10 No. 10-2012
corneal distortion) occurred earlier, when Dr. Webster
himself thought necessary, these factors would have
again corroborated that Ortiz met the criteria for surgery.
The problem with Dr. Webster’s inaction, then, is not
that he chose the wrong side in a medical debate. He
ignored his own opinion, undisputed in this record, that
within two years of 2003 Ortiz required either further
evaluation of his vision acuity or surgery. Physicians
cannot escape liability simply by “refusing to verify
underlying facts” regarding the potential need for treat-
ment. Farmer, 511 U.S. at 843 n.8; see Leavitt v. Corr. Med.
Servs., Inc., No. 10-1432, 2011 WL 2557009, at *10-11 (1st
Cir. June 29, 2011). Because the evidence would permit
a jury to conclude that Dr. Webster’s inaction sub-
stantially and unreasonably delayed necessary treat-
ment, Ortiz has done enough to survive summary judg-
ment on his claim of deliberate indifference. Berry v.
Peterman, 604 F.3d 435, 441 (7th Cir. 2010); Gayton v. McCoy,
593 F.3d 610, 625 (7th Cir. 2010); Grieveson v. Anderson,
538 F.3d 763, 779 (7th Cir. 2008); Jones v. Simek, 193 F.3d
485, 490-91 (7th Cir. 1999).
Even if we ignored that Dr. Maturi’s reasoning actually
confirms that Ortiz needed surgery in 2003 and considered
only that doctor’s “bottom line” that surgery was never
necessary (which is not how a court should treat an ex-
pert’s opinion, see Mid-State Fertilizer Co. v. Exch. Nat’l
Bank, 877 F.2d 1333, 1339 (7th Cir. 1989)), Dr. Maturi’s
affidavit merely highlights what we found in genuine
dispute in our prior decision. Setting aside Dr. Webster,
the record construed in Ortiz’s favor now contains six

-- 10 of 18 --

No. 10-2012 11
specialists who recommended surgery and two who
concluded that it was unnecessary. Both the dispute
about the need for surgery and Dr. Webster’s own
failure to resolve the issue through the further evalua-
tion that he himself considered necessary were evident
in the record before we remanded the case. The addition
of a non-treating doctor claiming surgery was unneces-
sary does not eliminate the dispute. See Abdullahi v. City
of Madison, 423 F.3d 763, 772 (7th Cir. 2005) (explaining
that “the sheer number of witnesses mustered by
each side is not a relevant consideration” for deciding
motions for summary judgment). Because we previously
identified a fact dispute over whether the extended delay
in Ortiz’s treatment amounted to deliberate indifference
and because Dr. Maturi’s opinion fails to resolve that
dispute, we remand for trial.
There is, however, one last issue that warrants our
attention. Throughout this litigation Ortiz has asserted
a broader contention that the “NO TOWN TRIP” nota-
tion suggested a policy of refusing to treat all death-
row inmates off-site. Both the notation’s author and
Dr. Webster have now provided an innocuous explana-
tion, and Ortiz failed to present any evidence to
undermine it. Dr. Webster even attested that there
were death-row inmates who did leave the prison for
medical treatment during the time in question, thus
further refuting Ortiz’s contention that no one in the
unit was allowed to do so. Because Dr. Webster offered
both an explanation for the notation and examples that
undermined the contention, Ortiz may use the “NO
TOWN TRIP” notation, at most, to support his claim of

-- 11 of 18 --

12 No. 10-2012
deliberate indifference. He may not proceed with a sepa-
rate contention that the prison denied death-row inmates
off-site treatment.
Accordingly, we VACATE the opinion of the district
court and REMAND with instructions that the case
proceed to trial.
KANNE, Circuit Judge, dissenting. I agree with the major-
ity’s opinion insofar as it forecloses Ortiz’s claim that
there was a policy which forbade medical trips for all
death-row inmates. There is no evidence of such a
policy, and the majority rightly rejects this argument.
I also agree that Ortiz has demonstrated that the
pterygia in one of his eyes qualified as a serious medical
condition. I part company with the majority, however, as
to its conclusions regarding Dr. Webster’s state of mind.
I do not believe that the facts of this case give rise to any
possibility of deliberate indifference on the part of
Dr. Webster during the time period of the complaint,
and would therefore affirm the grant of summary judg-
ment in Dr. Webster’s favor.
As the majority recognizes, the Eighth Amendment of
the United States Constitution proscribes cruel and un-
usual punishment, a proscription that is violated when

-- 12 of 18 --

No. 10-2012 13
prison officials display “deliberate indifference to [the]
serious medical needs of prisoners.” Estelle v. Gamble, 429
U.S. 97, 104 (1976). “Deliberate indifference” is a robust
state-of-mind requirement, ensuring that “the mere failure
of the prison official to choose the best course of action
does not amount to a constitutional violation.” Peate v.
McCann, 294 F.3d 879, 882 (7th Cir. 2002). Although a
prisoner need not show that the official intended the
harm that occurred to surmount this requirement, cir-
cumstances that suggest negligence—or even gross negli-
gence—by the official are insufficient to establish a con-
stitutional violation. Estelle, 429 U.S. at 106; McGowan
v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). Rather, deliber-
ate indifference exists only if the official was aware of
the condition and actually drew an inference that sub-
stantial harm would result if the condition was ignored
or improperly addressed. Farmer v. Brennan, 511 U.S.
825, 837 (1994); Gayton v. McCoy, 593 F.3d 610, 620 (7th
Cir. 2010).
Proving deliberate indifference in the medical context
is especially difficult, as the boundaries of reasonable
treatment are broad. Doctors, like jurists, often disagree
about what constitutes the “correct” result. Some doctors
prefer more conservative treatment, engaging in surgical
intervention only as a last resort, while other doctors
utilize a more aggressive approach, deploying surgery
before trying less invasive methods that they believe
will be ineffectual. In many situations, both approaches
to treatment would be “reasonable,” and a reasonable
response to a medical risk—even if the harm was ulti-
mately not averted—can never constitute deliberate

-- 13 of 18 --

14 No. 10-2012
indifference. Peate, 294 F.3d at 882. Even in those situa-
tions where one approach is reasonable and the other
is not, a “difference of opinion among physicians on
how an inmate should be treated” generally suggests—
at worst—a negligent state of mind, as the doctor’s mis-
taken belief that his treatment will succeed vitiates any
possibility of deliberate indifference. See Norfleet v.
Webster, 439 F.3d 392, 396 (7th Cir. 2006).
Keeping these principles in mind, I turn to Ortiz’s
claim. The majority points to two instances of possible
deliberate indifference: Dr. Webster’s decision in 2003 not
to approve surgery, and Dr. Webster’s follow-up care
between 2003 and late 2005. The majority discerns enough
evidence of deliberate indifference at both points, but
I remain convinced that Dr. Webster’s conduct evinces
no more—and perhaps less—than a negligent state of
mind.
The majority focuses first on Dr. Webster’s initial deci-
sion to ignore some of the recommendations for surgical
excision. The eye experts consulting at the prison came
to dueling conclusions regarding Ortiz’s care: a number
thought that surgery was necessary, but one, Dr.
Radaneata, concluded that Ortiz did not yet need an
excision because his condition could be managed with
eyedrops. When Dr. Webster started at the prison in
2003, he reviewed Ortiz’s file and sided with the expert
who preferred less invasive treatment, concluding that
surgery might be necessary in the future but was not
yet needed. Despite Dr. Webster’s reliance on a special-
ist’s opinion, the majority suggests that a jury could

-- 14 of 18 --

No. 10-2012 15
reasonably conclude that Dr. Webster knew or recklessly
failed to know that Ortiz’s symptoms warranted surgery
during his initial review. Ante at 8-9. On the contrary,
I see nothing that would permit a jury to discern reckless-
ness on the part of Dr. Webster at that point. Perhaps if
the treatment for Ortiz’s diagnosis was clear and there
was no way any physician would view the dissenting
specialist as providing a reasonable recommendation,
there would be enough for a jury to find recklessness.
See, e.g., Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996) (“If
the symptoms plainly called for a particular medical
treatment—the leg is broken, so it must be set; the
person is not breathing, so CPR must be administered—
a doctor’s deliberate decision not to furnish the treat-
ment might be actionable . . . .”). But treatment for pterygia
is not clear-cut—especially to a non-specialist like
Dr. Webster—and I cannot fathom why Dr. Webster’s
decision to credit one eye expert over another at the time
of his review points to anything more than negligence.
See Norfleet, 439 F.3d at 396; Estate of Cole by Pardue v.
Fromm, 94 F.3d 254, 262 (7th Cir. 1996).
Nor do I believe that Dr. Webster’s follow-up care
was constitutionally deficient. The majority concludes
that Dr. Webster was possibly deliberately indifferent
because he “ignored his own conclusions in 2003” regard-
ing the need for and scope of follow-up care. Ante at 9.
But Dr. Webster did not ignore his own follow-up or-
ders. Those orders, contrary to the majority’s asser-
tions, ante at 9-10, recommended only that Ortiz see a
specialist for follow-up; they said nothing about the types
of tests that should be ordered. And that recommenda-

-- 15 of 18 --

16 No. 10-2012
tion was followed. In 2004, after Dr. Webster’s initial
review, Ortiz was evaluated by an optometrist, who
concluded that excision was still unnecessary despite
tissue encroachment into the eye. Ortiz was also issued
a prescription for eyeglasses around that time, meaning
that his visual acuity must have been evaluated. Finally,
Ortiz was seen by a number of physician assistants
throughout 2004. One saw Ortiz prior to his appoint-
ment with the optometrist and noted the stage of his
corneal encroachment for the optometrist’s review.
The other assistants saw Ortiz after his visit with the
optometrist; they noted no major change in Ortiz’s
status since that visit and recommended Ortiz continue
with noninvasive treatment. All of this shows that
Ortiz was seen for follow-up in the manner originally
recommended by Dr. Webster.
In light of the pre-review opinions favoring surgery, the
majority also accuses Dr. Webster of “refusing to verify
underlying facts” during the follow-up period. Ante at 10.
True enough, Dr. Webster could not stick his head in
the sand after his 2003 review and ignore facts that
“he strongly suspected to be true.” Farmer, 511 U.S. at 843
n.8. But even read in the light most favorable to Ortiz,
the record does not suggest such intentional ignorance.
Rather, the sequence of events—along with Dr. Webster’s
declaration—reflects that Dr. Webster relied on the 2004
follow-up by the optometrist (and Ortiz’s subsequent
silence) to conclude that surgery remained unnecessary.
Now, perhaps Dr. Webster’s decision to rely on that
optometrist’s recommendation was a misjudgment—
parts of the non-treating expert’s opinion suggested as

-- 16 of 18 --

No. 10-2012 17
much, and doctors who evaluated Ortiz in 2006 noted
that he needed surgery on at least one of his eyes. But a
clinical misjudgment is generally insufficient to establish
a deliberately indifferent state of mind. See Duckworth
v. Ahmad, 532 F.3d 675, 680 (7th Cir. 2008); see also Foelker
v. Outagamie County, 394 F.3d 510, 515 (7th Cir. 2005)
(Manion, J., dissenting). In the end, Dr. Webster’s follow-
up decisions reflect an honest belief that noninvasive
care was adequate, leaving little opening for a jury to
conclude that his conduct was deliberately indifferent.
The majority concludes by stating that “[t]he addition
of a non-treating doctor claiming surgery was unneces-
sary does not eliminate the dispute.” Ante at 11. But
I believe that the non-treating expert’s opinion closes the
one tiny window left open in Ortiz’s claim. We have
consistently held that a difference of opinion between
physicians is insufficient to create an issue of fact as to
deliberate indifference, as such a disagreement would
rarely be enough to establish malpractice, much less the
standard imposed on Eighth Amendment claims. See, e.g.,
Norfleet, 439 F.3d at 396; Pardue, 94 F.3d at 261. The excep-
tion to this rule is those cases where the physician’s
viewpoint is so unreasonable and so ridiculous as to
leave open an inference that the physician acted
recklessly in choosing the course of treatment he did.
Duckworth, 532 F.3d at 680; Steele, 82 F.3d at 178. The non-
treating expert here opined that pterygia treatment is
not straightforward, and that many doctors reasonably
believe that noninvasive medical treatment is appropri-
ate for a significant period before surgical treatment
should be initiated. The expert’s uncontested opinion

-- 17 of 18 --

18 No. 10-2012
went on to state that Dr. Webster’s decisions were not
reckless, meaning that they were not “so far afield as to
allow a jury to infer deliberate indifference.” See Duckworth,
532 F.3d at 680. That sounds the death knell for Ortiz’s
claim.
It is unfortunate that Ortiz has the condition he does,
and I sympathize with his plight. But there is a sig-
nificant gap between negligent care and deliberate indif-
ference, and the Supreme Court has made clear that
mere negligence does not an Eighth Amendment viola-
tion make. Taking the facts in the light most favorable
to Ortiz, I believe a reasonable jury could infer only
negligence on the part of Dr. Webster—if even that. For
that reason, I respectfully dissent.
8-24-11

-- 18 of 18 --