                             PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


THOMAS EDWARD PATTEN, III,               
Administrator of the Estate of
Maura K. Patten,
                  Plaintiff-Appellant,
                  v.
STEPHEN NICHOLS, MD; JUNE FRINKS,
MSW,                                               No. 00-2503
             Defendants-Appellees,
                 and
L. F. HARDING; JACK W. BARBER,
MD; ROBERT LEADBETTER, MD; JON
R. HAMMERSBERG, MD,
                       Defendants.
                                         
            Appeal from the United States District Court
       for the Western District of Virginia, at Harrisonburg.
              Jackson L. Kiser, Senior District Judge.
                          (CA-99-30110)

                       Argued: September 26, 2001

                       Decided: December 18, 2001

    Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.



Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Motz and Judge Gregory joined.
2                         PATTEN v. NICHOLS
                             COUNSEL

ARGUED: Stephen Winston Bricker, BRICKER & HERRING, P.C.,
Richmond, Virginia, for Appellant. Colin James Steuart Thomas, III,
TIMBERLAKE, SMITH, THOMAS & MOSES, P.C., Staunton, Vir-
ginia, for Appellees. ON BRIEF: Michael N. Herring, BRICKER &
HERRING, P.C., Richmond, Virginia; Rebecca K. Glenberg, AMER-
ICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION,
INC., Richmond, Virginia, for Appellant. Randall T. Perdue, TIM-
BERLAKE, SMITH, THOMAS & MOSES, P.C., Staunton, Virginia,
for Appellees.


                              OPINION

TRAXLER, Circuit Judge:

   Maura Patten, a psychiatric patient, died while she was involuntar-
ily committed to Virginia’s Western State Hospital ("WSH"). The
representative of Maura’s estate (the "Estate") brought an action
under 42 U.S.C.A. § 1983 (West Supp. 2001) against Maura’s doctor,
Appellee Stephen Nichols, and her social worker, Appellee June
Frinks (together, the "defendants"). The district court granted sum-
mary judgment to the defendants, concluding that the Estate’s claim
should be measured by a deliberate indifference standard and that the
Estate failed to forecast evidence sufficient to show that the defen-
dants’ conduct violated that standard. The district court declined to
exercise supplemental jurisdiction over the Estate’s state law claims
and dismissed those claims without prejudice. While we agree with
the Estate that the district court applied the wrong legal standard, we
nonetheless conclude that the Estate’s evidence is insufficient to with-
stand summary judgment under the proper standard. Accordingly, we
affirm.

                                   I.

   Maura was diagnosed with chronic undifferentiated schizophrenia,
and she had been intermittently hospitalized since 1979 and continu-
ally hospitalized at WSH since 1991. Maura also suffered from
                           PATTEN v. NICHOLS                           3
chronic obstructive pulmonary disease ("COPD"), which the Estate
describes as "a life-threatening condition which impairs a person’s
ability to obtain and transfer oxygen to the body." Brief of Appellant
at 2. In 1994, Maura had an acute COPD episode that required admis-
sion to the intensive care unit of another hospital. Maura was signifi-
cantly overweight and was in the habit of "sneaking" cigarettes when
possible. The combination of these factors increased Maura’s risk for
cardiac problems.

   In July 1996, Maura was prescribed clozapine, an anti-psychotic
drug whose "black box" warnings1 included a "propensity to cause
‘adverse cardiovascular and respiratory effects,’" J.A. 19, and which
also commonly caused weight gain. The Estate alleged that during the
year that she was on clozapine, Maura’s breathing difficulties
increased and her weight increased from 237 to 274 pounds. Maura’s
medical records show that she received no physical examination
between October 1996 and her death on July 7, 1997.

   On June 19, 1997, Maura was transferred to a new and more
restrictive ward at WSH, where she was placed under the care of Dr.
Stephen Nichols, who served as her attending psychiatrist and medi-
cal doctor. June Frinks was Maura’s attending social worker. Both
Nichols and Frinks were familiar with Maura’s medical history.

   On July 2, 1997, Maura called Margaret Owen, a registered nurse
who lived with Maura’s brother, and said, "Margaret, I am dying."
J.A. 276. Maura told Owen that she wanted to quit taking clozapine,
that her breathing was getting worse, and that the hospital was not
giving her her asthma medicine. Owen could hear over the phone that
Maura was having difficulty breathing and could hear "a gurgling
sound" that Owen believed signified fluid in Maura’s respiratory
tract. J.A. 255. Owen became very concerned about Maura’s health
  1
    The Food and Drug Administration requires drug labels to include a
"warnings" section that "describe[s] serious adverse reactions and poten-
tial safety hazards, limitations in use imposed by them, and steps that
should be taken if they occur." 21 C.F.R. § 201.57(e) (2001). Warnings
about the most serious side effects, "particularly those that may lead to
death or serious injury, may be required by the Food and Drug Adminis-
tration to be placed in a prominently displayed box." Id.
4                          PATTEN v. NICHOLS
after the phone call, and the next day she was able to reach Margaret
Keller, Maura’s sister and "authorized representative" for purposes of
making treatment decisions.

   On July 3, 1997, Keller called WSH and spoke to Frinks. She told
Frinks that Maura told Owen she was dying, and Keller also told
Frinks that the family was concerned that Maura’s breathing problems
were worsening. Maura was in the same room with Frinks during this
telephone call and while Keller was speaking to Frinks, Keller could
hear through the phone that Maura was having breathing problems.
Keller also spoke to Maura at that time and the breathing problems
were apparent to Keller during their conversation. Keller demanded
that Maura receive a full physical examination, and Frinks told her
that an exam could not be arranged before July 7 because of the
upcoming holiday weekend. During the phone call, Keller heard
Frinks chastise Maura for telling her family that she was dying.

   After her conversation with Keller, Frinks went to Dr. Nichols and
told him about Maura’s statement to her family that she was dying.
Frinks and Nichols immediately went to speak to Maura, and found
her in a hallway. They spoke to Maura for ten to twenty minutes, and
asked her about her phone call to Owen. According to Frinks and
Nichols, Maura said that she felt bad about telling her family she was
dying, but she explained that she wanted to get their attention so they
could help get her medication changed. Nichols asked Maura how she
was feeling, and Maura complained about her dislike of clozapine and
the new ward. Nichols and Frinks testified in their depositions that
Maura never mentioned any physical problems and that they did not
see any indications that Maura was in respiratory distress. Frinks cal-
led Keller later that day to inform her of the meeting with Maura.2
    2
    There is a question in the record about when Keller told Frinks about
the family’s concern over Maura’s increased breathing problems. Kel-
ler’s testimony indicates that she told Frinks about the concern (and also
heard Maura having breathing problems) during the same conversation
in which Keller told Frinks about Maura’s "dying" phone call. Frinks,
however, believed that Keller raised questions about Maura’s breathing
problems only when Frinks called Keller back to report that she and
Nichols had met with Maura. In any event, Frinks had no recollection of
ever telling Dr. Nichols about the family’s belief that Maura’s breathing
problems had worsened, and Nichols stated in his deposition that their
concern was not brought to his attention. As we discuss later, the posture
of the case requires us to accept the Estate’s version of the facts.
                          PATTEN v. NICHOLS                          5
   Maura’s vital signs were not taken during the meeting, and Dr.
Nichols did not instruct WSH staff to more closely observe Maura.
Frinks made notes in Maura’s chart about Maura’s phone call to her
family, Keller’s concern about Maura’s heavy breathing, and the hall-
way meeting with Maura. Dr. Nichols made no record of the phone
call or the meeting.

   Early in the morning of July 7, a nurse found Maura unresponsive
in her bed. Efforts to resuscitate her failed. An autopsy identified
"coronary insufficiency" as the immediate cause of death. J.A. 144.
The pathologist who supervised Maura’s autopsy stated in his deposi-
tion that the visual examination of Maura’s lungs revealed no evi-
dence of "significant chronic lung disease," but that the microscopic
examination found "some changes that suggest previous episodes of
failure." J.A. 429. Given the findings from the autopsy, including the
size of Maura’s heart and the condition of her lungs, the pathologist
concluded that Maura probably suffered from episodes of congestive
heart failure, the principal symptom of which would have been short-
ness of breath. The pathologist acknowledged, however, that the
shortness of breath may have occurred only hours or minutes before
Maura’s death.

   The Estate also presented evidence from several experts, including
Dr. Herbert Friedman. Dr. Friedman stated that "[o]bstructive lung
disease impaired [Maura’s] respiratory status, which caused her to
suffer chronic low oxygen levels, which led to impaired heart func-
tion." J.A. 197. Dr. Friedman believed that Maura died "as a result of
pulmonary insufficiency causing hypoxia, which[,] in turn, induced
cardiac failure." J.A. 197. According to Friedman, Maura "likely was
exhibiting symptoms consistent with this condition for a period of
days before her death. Her likely symptoms during the five to seven
days prior to her death would have included shortness of breath, respi-
ratory secretions and wheezing. She may also have exhibited an
increased respiratory rate and tachycardia which would have indicated
respiratory compromise." J.A. 198. Dr. Friedman believed that
"[t]imely and appropriate medical intervention likely would have
interrupted this medical course and saved Ms. Patten’s life at any
point short of a few hour[s]" before her death. J.A. 197.

   Dr. Ronald Koshes, another expert for the Estate, concluded that,
given Maura’s medical history, "the standard of care required that Dr.
6                         PATTEN v. NICHOLS
Nichols [e]ither physically examine Ms. Patten or [ ] arrange for oth-
ers to do so, to assess her vital signs and to identify any symptoms
of respiratory or cardiac distress immediately." J.A. 220. Dr. Koshes
believed that the visual observation of Maura was insufficient and that
the failure to properly examine Maura was "a significant and gross
deviation from the standard of care." J.A. 220. Dr. Koshes stated that
by failing to order closer and more frequent observation of Maura and
by not contacting Maura’s family directly to investigate Maura’s
"dying" claim, "Dr. Nichols deprived himself of valuable information
regarding the patient’s deteriorating condition." J.A. 221. In his depo-
sition, Dr. Koshes was more direct in his condemnation of the defen-
dants’ actions, expressing his belief that "there was not enough
attention paid to even determine whether there was anything wrong
or not," J.A. 235, and that the defendants "didn’t even arrive at first
base to make a diagnosis." J.A. 465.

   Sometime after Maura’s death, the United States Department of
Justice began investigating the conditions at WSH. In 1999, the
department issued a report in which it concluded that WSH was not
providing its patients with adequate mental health treatment or medi-
cal care. Maura’s death was one of the instances specifically noted in
the report. Similar conclusions were reached by Virginia’s Depart-
ment for Rights of Virginians with Disabilities in its investigation of
Maura’s death.

                                  II.

   The Estate contends that the defendants violated Maura’s substan-
tive due process rights under the Fourteenth Amendment by failing to
provide Maura with proper medical care. The first question we must
address is the standard by which such a claim should be measured.

   The substantive component of the due process clause protects
against only the most egregious, arbitrary governmental conduct—
that is, conduct that can be said to "shock[ ] the conscience." County
of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); see also Young v.
City of Mount Ranier, 238 F.3d 567, 574 (4th Cir. 2001). Depending
on the circumstances of each case, however, "different degrees of
fault may rise to the level of conscience-shocking." Young, 238 F.3d
at 574; see Lewis, 523 U.S. at 850 ("Rules of due process are not,
                          PATTEN v. NICHOLS                           7
however, subject to mechanical application in unfamiliar territory.
Deliberate indifference that shocks in one environment may not be so
patently egregious in another . . . ."); Miller v. City of Philadelphia,
174 F.3d 368, 375 (3d Cir. 1999) ("The exact degree of wrongfulness
necessary to reach the ‘conscience-shocking’ level depends upon the
circumstances of a particular case."). While it is clear that intention-
ally harmful conduct may constitute a violation of the Fourteenth
Amendment, it is equally clear that negligence alone does not amount
to a constitutional violation. See Lewis, 523 U.S. at 849 ("[L]iability
for negligently inflicted harm is categorically beneath the threshold of
constitutional due process. . . . [C]onduct intended to injure in some
way unjustifiable by any government interest is the sort of official
action most likely to rise to the conscience-shocking level"). The dif-
ficulty comes in determining "[w]hether the point of the conscience
shocking is reached when injuries are produced with culpability fall-
ing within the middle range, following from something more than
negligence but less than intentional conduct, such as recklessness or
gross negligence." Id. (internal quotation marks omitted). This uncer-
tain middle ground is where the battle in this case is being fought.

   The defendants contend that deliberate indifference is the degree of
fault that must be established before liability can be imposed. That
standard was first applied by the Supreme Court to a convicted pris-
oner’s Eighth Amendment claim that prison officials failed to provide
adequate medical care. See Estelle v. Gamble, 429 U.S. 97, 104-05
(1976). As to denial-of-medical-care claims asserted by pre-trial
detainees, whose claims arise under the Fourteenth Amendment rather
than the Eighth Amendment, the Supreme Court has yet to decide
what standard should govern, thus far observing only that the Four-
teenth Amendment rights of pre-trial detainees "are at least as great
as the Eighth Amendment protections available to a convicted pris-
oner." City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244
(1983); see also Bell v. Wolfish, 441 U.S. 520, 545 (1979) ("[P]retrial
detainees, who have not been convicted of any crimes, retain at least
those constitutional rights that we have held are enjoyed by convicted
prisoners."). This circuit, however, has concluded that denial-of
medical-care claims asserted by pre-trial detainees are governed by
the deliberate indifference standard. See, e.g., Brown v. Harris, 240
F.3d 383, 388 (4th Cir. 2001); Young, 238 F.3d at 575; Belcher v. Oli-
ver, 898 F.2d 32, 34 (4th Cir. 1990). Other circuits have reached the
8                         PATTEN v. NICHOLS
same conclusion. See, e.g., Chapman v. Keltner, 241 F.3d 842, 845
(7th Cir. 2001); Napier v. Madison County, Kentucky, 238 F.3d 739,
742 (6th Cir. 2001); Taylor v. Adams, 221 F.3d 1254, 1257 n.3 (11th
Cir. 2000), cert. denied, 531 U.S. 1077 (2001); Barrie v. Grand
County, Utah, 119 F.3d 862, 868-69 (10th Cir. 1997). Like the denial-
of-medical-care claims asserted by pre-trial detainees, the Estate’s
denial-of-medical-care claim is grounded in the Fourteenth Amend-
ment. The defendants therefore contend that the Estate’s claim must
be treated the same as those of pre-trial detainees and must be mea-
sured against the standard of deliberate indifference.

   The Estate, however, argues that because Maura had been involun-
tarily committed to a state psychiatric facility, we must analyze her
claim under the standard set forth by the Supreme Court in Youngberg
v. Romeo, 457 U.S. 307 (1982). In Youngberg, the Supreme Court
held that a developmentally disabled person who is committed invol-
untarily to a state hospital retains constitutionally protected liberty
interests, and that protection of those interests generally requires the
exercise of professional judgment. See id. at 321-22. Although the
right to receive proper medical care was not at issue in Youngberg,
the Estate contends that the Youngberg standard is equally applicable
to denial-of-medical-care claims asserted by involuntarily committed
patients.

   We acknowledge that there is some appeal to the defendants’ view
that all Fourteenth Amendment denial-of-medical-care claims should
be measured by the same standard. Nevertheless, we agree with the
Estate that this case is governed by Youngberg. An analysis of the
decision in Youngberg is necessary to explain this conclusion.

   Nicholas Romeo, the plaintiff in Youngberg, was a profoundly
retarded man with an IQ of between eight and ten who had been com-
mitted to a state hospital after his mother could no longer care for
him. See id. at 309. While in the state hospital, Romeo suffered
numerous injuries, some self-inflicted and some inflicted by other res-
idents. See id. at 310. Romeo’s mother brought a section 1983 action
on his behalf, alleging that hospital officials knew that Romeo was
being injured but failed to institute appropriate preventative measures,
that the defendants improperly restrained Romeo for prolonged peri-
ods, and that the defendants were not providing Romeo with appropri-
                           PATTEN v. NICHOLS                             9
ate treatment or training for his mental retardation. See id. at 311.
After being instructed that "deliberate indifference" was the standard
for imposing liability, see id. at 312, the jury returned a verdict in
favor of the defendants.

   Sitting en banc, the Third Circuit reversed and remanded for a new
trial, concluding that the jury instructions failed to properly define the
scope of Romeo’s constitutional rights. See Romeo v. Youngberg, 644
F.2d 147, 154 (3d Cir. 1980) (en banc), vacated and remanded, 457
U.S. 307 (1982). The Third Circuit’s majority opinion set forth differ-
ent standards by which each of Romeo’s claims should be judged,
standards couched in terms of "compelling necessity," id. at 160,
"substantial necessity," id. at 164, and "least intrusive" alternative, id.
at 166. A separate concurring opinion authored by Chief Judge Seitz
argued that all of Romeo’s claims should be governed by a standard
that would impose liability only for conduct that is a "substantial
departure from accepted professional judgment." Id. at 178; see id. at
180-81.

   The Supreme Court agreed with the Third Circuit’s conclusion that
mentally retarded patients who are involuntarily committed to state
institutions have liberty interests in "safety, freedom of movement,
and training." Youngberg, 457 U.S. at 315. However, after balancing
the individual’s liberty interests against the state’s interests (including
the state’s reason for restraining individual liberty, and the fiscal and
administrative burdens under which state institutions generally oper-
ate), the Supreme Court determined that the standards articulated by
the Third Circuit majority imposed too great a burden on the state.
The Court explained:

     Persons who have been involuntarily committed are entitled
     to more considerate treatment and conditions of confine-
     ment than criminals whose conditions of confinement are
     designed to punish. At the same time, this standard is lower
     than the "compelling" or "substantial" necessity tests the
     Court of Appeals would require a State to meet. . . . We
     think this requirement would place an undue burden on the
     administration of institutions such as Pennhurst and also
     would restrict unnecessarily the exercise of professional
     judgment as to the needs of residents.
10                         PATTEN v. NICHOLS
Id. at 321-22 (citation omitted). The Court concluded that the "profes-
sional judgment" standard "articulated by Chief Judge Seitz affords
the necessary guidance and reflects the proper balance between the
legitimate interests of the State and the rights of the involuntarily
committed." Id. at 321. The Court therefore adopted Chief Judge
Seitz’s view that "the Constitution only requires that the courts make
certain that professional judgment in fact was exercised. It is not
appropriate for the courts to specify which of several professionally
acceptable choices should have been made." Id. (internal quotation
marks omitted). The Court emphasized that a decision, "if made by
a professional, is presumptively valid; liability may be imposed only
when the decision by the professional is such a substantial departure
from accepted professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base the deci-
sion on such a judgment." Id. at 323 (footnote omitted).

   In Youngberg, the state conceded that it was obligated to provide
"adequate food, shelter, clothing, and medical care" to those commit-
ted to state institutions. Id. at 315. Thus, no questions about an invol-
untarily committed patient’s right to adequate medical care were
before the Youngberg Court, although the Supreme Court’s opinion
seems to fairly clearly reveal its view of the matter. See Youngberg,
457 U.S. at 324 (describing "adequate food, shelter, clothing, and
medical care" as "the essentials of the care that the State must pro-
vide"). While the Estate acknowledges that Youngberg does not
directly address the right to medical care, it contends that the rationale
underlying Youngberg compels us to apply its standard to the Estate’s
denial-of-medical-care claim. We agree.

   It is well established that the Due Process Clause of the Fourteenth
Amendment serves "as a limitation on the State’s power to act, not
as a guarantee of certain minimal levels of safety and security."
DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189,
195 (1989). Thus, the clause "confer[s] no affirmative right to govern-
mental aid, even where such aid may be necessary to secure life, lib-
erty, or property interests of which the government itself may not
deprive the individual." Id. at 196; see also Youngberg, 457 U.S. at
317 ("As a general matter, a State is under no constitutional duty to
provide substantive services for those within its border."). There are,
however, certain exceptions to this general rule.
                           PATTEN v. NICHOLS                           11
   The Eighth Amendment obligates the state to provide medical care
to incarcerated prisoners. See Estelle, 429 U.S. at 103-04. The Four-
teenth Amendment likewise obligates the state to provide medical
care to suspects injured while being apprehended by the police. See
City of Revere, 463 U.S. at 244. And, as explained by Youngberg, the
Fourteenth Amendment obligates the state to provide certain services
to involuntary committed psychiatric patients.3 As the Supreme Court
explained in DeShaney, these exceptions to the general no-duty-to-act
rule are rooted in the fact the state has custody over the person assert-
ing the claims:

      [Estelle and Youngberg] [t]aken together . . . stand only for
      the proposition that when the State takes a person into its
      custody and holds him there against his will, the Constitu-
      tion imposes upon it a corresponding duty to assume some
      responsibility for his safety and general well-being. The
      rationale for this principle is simple enough: when the State
      by the affirmative exercise of its power so restrains an indi-
      vidual’s liberty that it renders him unable to care for him-
      self, and at the same time fails to provide for his basic
      human needs—e.g., food, clothing, shelter, medical care,
      and reasonable safety—it transgresses the substantive limits
      on state action set by the Eighth Amendment and the Due
      Process Clause. The affirmative duty to protect arises not
      from the State’s knowledge of the individual’s predicament
      or from its expressions of intent to help him, but from the
      limitation which it has imposed on his freedom to act on his
      own behalf. In the substantive due process analysis, it is the
      State’s affirmative act of restraining the individual’s free-
      dom to act on his own behalf—through incarceration, insti-
  3
   Although Youngberg involved involuntarily committed mentally
retarded patients, its standard is routinely applied to cases involving
involuntarily committed mentally ill patients. See, e.g., Kulak v. City of
New York, 88 F.3d 63, 75 (2d Cir. 1996); Estate of Porter v. Illinois, 36
F.3d 684, 688 (7th Cir. 1994). The defendants do not suggest that the
Youngberg standard is inapplicable because of any perceived distinction
between the scope of the rights of involuntarily committed mentally
retarded patients and those of involuntarily committed psychiatric
patients.
12                         PATTEN v. NICHOLS
     tutionalization, or other similar restraint of personal liberty
     —which is the deprivation of liberty triggering the protec-
     tions of the Due Process Clause, not its failure to act to pro-
     tect his liberty interests against harms inflicted by other
     means.

DeShaney, 489 U.S. at 199-200 (footnote and internal citations omit-
ted).

   It is no surprise that the DeShaney Court included medical care in
its list of "basic human needs," and the defendants make no attempt
to lessen the importance of adequate medical care. Given that the
state’s obligation to provide for an involuntarily committed patient’s
basic needs springs from the very fact of custody and the resulting
inability of the patient to see to those needs, we do not believe that
we can carve out medical care from that list of needs and give it a dif-
ferent level of constitutional protection simply because the Supreme
Court in Youngberg was not called upon to consider the right to medi-
cal care. Moreover, the Supreme Court in Youngberg did address the
extent of an involuntarily committed patient’s constitutional right to
safety—specifically, the patient’s right to be protected from self-
inflicted harm and harm inflicted by others. We can see no difference
between a patient’s need to be protected from harm and the need for
medical care that is significant enough to warrant the application of
different standards to those claims.

   In a slightly different context, the Supreme Court has reached the
same conclusion. In Wilson v. Seiter, 501 U.S. 294 (1991), the Court
addressed the standard that should be applied to a convicted prison-
er’s Eighth Amendment challenge to the conditions of his confine-
ment. The Court concluded that such claims should be measured
under the deliberate indifference standard, the standard that is also
applied to prisoner’s denial-of-medical-care claims. See id. at 303.
The Court explained:

     [W]e see no significant distinction between claims alleging
     inadequate medical care and those alleging inadequate "con-
     ditions of confinement." Indeed, the medical care a prisoner
     receives is just as much a "condition" of his confinement as
     the food he is fed, the clothes he is issued, the temperature
                          PATTEN v. NICHOLS                          13
    he is subjected to in his cell, and the protection he is
    afforded against other inmates. There is no indication that,
    as a general matter, the actions of prison officials with
    respect to these nonmedical conditions are taken under
    materially different constraints than their actions with
    respect to medical conditions.

Id.; accord Young, 238 F.3d at 575 (stating that a claim of failure to
protect from harm "is no different in any meaningful respect from the
indifferent-to-medical-needs claim"); see also Hare v. City of Cor-
inth, 74 F.3d 633, 644 (5th Cir. 1996) (en banc) (noting "the absence
of a constitutionally significant distinction between failure-to-protect
and medical care claims").

   Because there is no constitutionally significant difference between
the nature of the protection-from-harm claims specifically addressed
by the Supreme Court in Youngberg and the denial-of-medical-care
claim asserted by the Estate in this case, we believe that the Estate’s
claim must be measured against the professional judgment standard
articulated by the Court in Youngberg. And contrary to the defen-
dants’ argument, we do not believe that a different conclusion is war-
ranted by the cases applying the deliberate indifference standard to
denial-of-medical-care claims asserted by pre-trial detainees.

   As discussed above, the deliberate indifference standard had its
genesis in and is the same standard applied to Eighth Amendment
cases involving claims asserted by convicted prisoners. In Youngberg,
however, the Supreme Court stated that "[p]ersons who have been
involuntarily committed are entitled to more considerate treatment
and conditions of confinement than criminals whose conditions of
confinement are designed to punish." Youngberg, 457 U.S. at 321-22.
Applying the deliberate indifference standard to the Estate’s claim
would be giving involuntarily committed patients the same treatment
as that afforded to convicted prisoners, a result the Youngberg Court
specifically condemned. See id. at 325 ("[W]e conclude that the jury
was erroneously instructed on the assumption that the proper standard
of liability was that of the Eighth Amendment"); see also Boring v.
Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987) ("To apply the Eighth
Amendment standard to mentally retarded persons would be little
short of barbarous."); Estate of Porter v. Illinois, 36 F.3d 684, 688
14                         PATTEN v. NICHOLS
(7th Cir. 1994) (stating that the application of the deliberate indiffer-
ence standard to cases involving involuntarily committed patients
"would undermine the Court’s pronouncement that involuntarily com-
mitted patients are entitled to more protected ‘conditions of confine-
ment’ than convicted criminals").

   The defendants, however, argue that to apply the professional judg-
ment standard to cases like Maura’s would create an inconsistency in
the treatment of substantially identical claims. That is, Fourteenth
Amendment denial-of-medical-care claims asserted by pre-trial
detainees would be measured against the deliberate indifference stan-
dard, while Fourteenth Amendment denial-of-medical-care claims
asserted by involuntarily committed psychiatric patients would be
measured against the professional judgment standard. The defendants
insist that it would be improper to measure the same type of Four-
teenth Amendment claim against different standards depending on the
circumstances under which the plaintiff came to be in state custody.
But the result urged by the defendants would also create an inconsis-
tency, one that we believe is far more problematic.

   If the defendants are correct that all Fourteenth Amendment denial-
of-medical-care claims must be measured under the deliberate indif-
ference standard, regardless of the status of the plaintiff, then different
legal standards would apply to different aspects of the claims of a sin-
gle involuntarily committed patient. Suppose, for example, that a state
hospital failed to protect an involuntarily committed patient from an
assault by another patient, and that the hospital also failed to treat the
injuries the patient suffered in the assault. Under the defendants’ anal-
ysis, the patient’s claim that the hospital failed to protect him from
assault (an issue specifically addressed in Youngberg) would be mea-
sured under Youngberg’s professional judgment standard, but the
failure-to-provide-medical-care claim would be measured under the
deliberate indifference standard. Yet the defendants do not even
attempt to explain why the circumstances surrounding the operation
of a psychiatric hospital require the application of disparate standards
to similar claims. A consideration of the standards applicable to cer-
tain Eighth Amendment claims may help illustrate this point.

  During a prison disturbance, prison officials must act "in haste,
under pressure." Whitley v. Albers, 475 U.S. 312, 320 (1986). Given
                            PATTEN v. NICHOLS                            15
the nature of a prison disturbance and the competing interests at stake,
the Supreme Court in Whitley concluded that it would be inappropri-
ate to measure the prison officials’ response to a disturbance by the
same standard (deliberate indifference) that governs their conduct
with regard to general conditions of confinement:

     The deliberate indifference standard articulated in Estelle
     was appropriate in the context presented in that case because
     the State’s responsibility to attend to the medical needs of
     prisoners does not ordinarily clash with other equally impor-
     tant governmental responsibilities. Consequently, "deliber-
     ate indifference to a prisoner’s serious illness or injury" can
     typically be established or disproved without the necessity
     of balancing competing institutional concerns for the safety
     of prison staff or other inmates. But, in making and carrying
     out decisions involving the use of force to restore order in
     the face of a prison disturbance, prison officials undoubtedly
     must take into account the very real threats the unrest pre-
     sents to inmates and prison officials alike, in addition to the
     possible harms to inmates against whom force might be
     used. . . . In this setting, a deliberate indifference standard
     does not adequately capture the importance of such compet-
     ing obligations, or convey the appropriate hesitancy to cri-
     tique in hindsight decisions necessarily made in haste, under
     pressure, and frequently without the luxury of a second
     chance.

Id. (citation omitted). The Supreme Court therefore concluded that a
higher standard should be applied to claims based on actions taken to
quell dangerous prison disturbances. See id. at 320-21.

    Unlike claims arising from actions taken in response to a violent
prison disturbance, denial-of-medical-care claims in psychiatric hos-
pitals typically do not arise under extraordinary circumstances that
would require the balancing of competing obligations (such as the
need to protect the safety of other patients) when considering the pro-
priety of the hospital’s response. That is, providing medical care to a
given patient usually does not jeopardize the safety of hospital
employees or patients or otherwise affect the hospital’s ability to ful-
fill its other obligations. Cf. id. ("[T]he State’s responsibility to attend
16                         PATTEN v. NICHOLS
to the medical needs of prisoners does not ordinarily clash with other
equally important governmental responsibilities."). This is not to say
that medical emergencies do not arise—of course they do, just as
emergencies arise that involve a hospital’s obligation to protect the
safety of its patients. But Youngberg clearly establishes that a hospi-
tal’s obligation to protect the safety of its patients is measured by the
professional judgment standard, and there is no reason to think that
the hospital generally will attend to its obligation to provide medical
care under circumstances substantially different from those under
which the hospital attends to its obligation to protect the patient’s
safety. Cf. Seiter, 501 U.S. at 303 ("There is no indication that, as a
general matter, the actions of prison officials with respect to these
nonmedical conditions [including the protection of inmates from
attack by other inmates] are taken under materially different con-
straints than their actions with respect to medical conditions."). We
believe that to require denial-of-medical-care claims asserted by
involuntarily committed patients to be judged against a standard dif-
ferent from that governing the same patients’ claims involving
equally important needs such as safety would add an unnecessary
complication that is not justified by conditions inherent in the pur-
pose or operation of a psychiatric hospital or in the nature of the
denial-of-medical-care claims themselves. Cf. Romeo v. Youngberg,
644 F.2d 147, 175 (3d Cir. 1980) (en banc) (Seitz, C.J., concurring)
("Protection, restraint, and treatment are not severable issues in the
context of the institutionalized mentally retarded. I believe that a sin-
gle standard can be established to protect the constitutional rights of
committed persons while recognizing the legitimate interests of the
state.").

   In our view, however, there are sufficient differences between pre-
trial detainees and involuntarily committed psychiatric patients to jus-
tify the arguable inconsistency that springs from the application of
Youngberg’s professional judgment standard to denial-of-medical
care claims asserted by involuntarily committed patients. The most
obvious and most important difference is the reason for which the
person has been taken into custody. A person may be involuntarily
committed in Virginia if there is probable cause to believe that the
person "presents an imminent danger to self or others as a result of
mental illness, or is so seriously mentally ill as to be substantially
unable to care for self," and the person "is incapable of volunteering
                            PATTEN v. NICHOLS                            17
or unwilling to volunteer for treatment." Va. Code Ann. § 37.1-67.01.
One of the main purposes of such commitment is, of course, to pro-
vide treatment. See Va. Code Ann. § 37.1-67.3 (establishing proce-
dures for "involuntary admission and treatment" and requiring report
from examining psychiatrist or psychologist to state "whether the per-
son is . . . in need of involuntary hospitalization or treatment"); Va.
Code Ann. § 37.1-67.4 ("Any . . . institution caring for a person
placed with it pursuant to a temporary order of detention is authorized
to provide emergency medical and psychiatric services within its
capabilities when the institution determines such services are in the
best interests of the person within its care."). A pre-trial detainee,
however, is taken into custody because the state believes the detainee
has committed a crime, and the detainee is kept in custody to ensure
that he appears for trial and serves any sentence that might ultimately
be imposed. See Bell, 441 U.S. at 534. Moreover, pre-trial detainees
generally are housed in jails or prisons staffed by law enforcement
officials, while involuntarily committed patients generally are housed
in hospitals staffed by medical professionals. Finally, while some
involuntarily committed patients are confined for short periods of
time, many patients face lengthy and even lifelong confinement. Pre-
trial detainees, however, usually retain that status for a relatively short
period of time, until released on bond or until the resolution of the
charges against them. Therefore, even though pre-trial detainees and
involuntarily committed patients both look to the Fourteenth Amend-
ment for protection and neither group may be punished (in the Eighth
Amendment sense), it can hardly be said that the groups are similarly
situated. The differences in the purposes for which the groups are
confined and the nature of the confinement itself are more than
enough to warrant treating their denial-of-medical-care claims under
different standards.4
   4
     The defendants contend that our decisions in Young v. City of Mount
Ranier, 238 F.3d 567 (4th Cir. 2001), and Buffington v. Baltimore
County, Md., 913 F.2d 113 (4th Cir. 1990), support their view that all
Fourteenth Amendment denial-of-medical-care claims must be measured
under the deliberate indifference standard. We disagree. While the dece-
dents in Young and Buffington were detained for psychiatric evaluations
and had not been charged with any crime at the time of their deaths, the
claims asserted in those cases were based on police action (or inaction)
occurring while the decedents were in police custody. See Young, 238
F.3d at 570; Buffington, 913 F.2d at 116-17. The decedents, therefore,
were more similar to traditional pre-trial detainees than to patients invol-
untarily committed to psychiatric hospitals.
18                         PATTEN v. NICHOLS
   The defendants, however, suggest that after DeShaney, it is
improper to consider the purpose for which an individual was taken
into custody or the conditions under which the individual is kept in
custody when determining the appropriate liability standard. They
contend that under DeShaney, the only relevant inquiry is whether a
state has taken a person into custody. If a custodial relationship exists,
then the state’s Fourteenth Amendment obligations arise, and "the"
Fourteenth Amendment standard for denial-of-medical-care claims
must be applied. "The" standard, in the defendants’ view, is the delib-
erate indifference standard. We disagree.

   As discussed above, the Supreme Court in DeShaney made it clear
that an exception to the general no-duty-to-act rule arises only if the
state takes an individual into custody; if there is no custodial relation-
ship, then the state has no duty to protect. See DeShaney, 489 U.S.
at 199-200. But DeShaney did not address the scope of inquiry that
should be undertaken if a custodial relationship does exist, and the
Court even after DeShaney has continued to carefully consider, as it
did in Youngberg, the factual context in which a substantive due pro-
cess claim is raised so as to ensure the proper balancing of the inter-
ests of the individual and the state. See Lewis, 523 U.S. at 850 ("[O]ur
concern with preserving the constitutional proportions of substantive
due process demands an exact analysis of circumstances before any
abuse of power is condemned as conscience shocking."); id. at 851
("[A]ttention to the markedly different circumstances of normal pre-
trial custody and high-speed law enforcement chases shows why the
deliberate indifference that shocks in the one case is less egregious in
the other . . . ."). Moreover, because the Court in DeShaney concluded
that the state in that case had no obligation to protect the plaintiff
because the plaintiff was not in state custody when he was injured, it
should not be surprising that DeShaney simply does not address the
question we face here—what liability standard should be applied in
cases where the state does have a constitutional obligation to a person
in its custody. Thus, nothing in DeShaney renders improper our con-
sideration of the nature and purpose of the confinement of involuntar-
ily committed psychiatric patients when determining the proper
standard to be applied to the constitutional claims of such patients.5
  5
  The defendants also suggest that DeShaney casts some doubt on
Youngberg’s continuing vitality, a view shared by the Fifth Circuit. See
                           PATTEN v. NICHOLS                           19
   Nothing in the nature of a denial-of-medical-care claim or the inter-
ests of state officials in responding to a civilly committed patient’s
need for medical care warrants treating such claims under a standard
different from the standard governing similar claims established by
the Supreme Court in Youngberg. We therefore conclude that denial-
of-medical-care claims asserted by involuntarily committed psychiat-
ric patients must be measured under Youngberg’s "professional judg-
ment" standard.6 See Kulak v. City of New York, 88 F.3d 63, 75 (2d
Cir. 1996) (applying the professional judgment standard to an invol-
untarily committed patient’s claim that hospital employees improp-
erly medicated him and failed to monitor the effects of the
medication); Gilbert v. Texas Mental Health & Mental Retardation,
919 F. Supp. 1031, 1038 (E.D. Tex. 1996) (applying the Youngberg
standard to section 1983 claims asserting that an involuntarily com-
mitted patient died because the defendants failed, inter alia, to pro-
vide adequate medical care); Lelsz v. Kavanagh, 673 F. Supp. 828,
845 (N.D. Tex. 1987) (applying Youngberg’s professional judgment
standard to claims regarding the adequacy of medical care given to
involuntarily committed patients); see also United States v. Charters,
863 F.2d 302, 312 (4th Cir. 1988) (en banc) (stating that Youngberg
established "the basic principle . . . that a legally institutionalized
mental patient is entitled to the exercise of ‘professional judgment’ by
those who have the responsibility for making medical decisions that
affect his retained liberty interests"); Savidge v. Fincannon, 836 F.2d
898, 907-08 (5th Cir. 1988) (indicating that the right to a "reasonably

Hare v. City of Corinth, 74 F.3d 633, 647 (5th Cir. 1996) (en banc). The
Supreme Court, however, has not overruled Youngberg, and has, even
after DeShaney, continued to cite Youngberg in various contexts. See,
e.g., Lewis, 523 U.S. at 852 n.12; Collins v. City of Harker Heights, 503
U.S. 115, 127 (1992); Washington v. Harper, 494 U.S. 210, 221-22
(1990). We therefore are not free to disregard Youngberg, as the defen-
dants would have us do.
   6
     Because we conclude that the Youngberg standard governs medical-
care claims asserted by involuntarily committed psychiatric patients, we
decline the defendants’ invitation to adopt the approach of the Fifth Cir-
cuit as set forth in Hare. See Hare, 74 F.3d at 644 (concluding that the
standard to be applied to claims asserted by pre-trial detainees depends
on whether the claims involve "challenges to conditions, practices, rules,
or restrictions on the one hand, and episodic acts or omissions on the
other").
20                        PATTEN v. NICHOLS
safe physical environment" established by Youngberg includes the
"right to minimally adequate shelter and medical care").

                                 III.

  Having determined that the Youngberg standard applies to the
Estate’s claim, we now consider whether the Estate’s evidence, when
analyzed under the proper standard, is sufficient to withstand sum-
mary judgment. We answer that question in the negative.

   In malpractice cases brought under state law, liability typically is
based on negligence, which can be established by showing any depar-
ture from the applicable standard of care. See, e.g., Rogers v. Marrow,
413 S.E.2d 344, 346 (Va. 1992) ("In order to recover for medical neg-
ligence, the plaintiff ordinarily must prove through the use of expert
testimony the applicable standard of care, a deviation from that stan-
dard, proximate causation, and damages."). But, as noted previously,
liability under the due process clause cannot be imposed for mere
negligence, a principle reflected in the professional judgment stan-
dard’s requirement of a "substantial departure from accepted profes-
sional judgment." Youngberg, 457 U.S. at 323 (emphasis added).
Beyond recognizing that the standard requires proof of more than
mere negligence, courts have had some difficulty determining pre-
cisely how far the professional judgment standard falls from negli-
gence on the culpability continuum. Compare Yvonne L. v. New
Mexico Dep’t of Human Servs., 959 F.2d 883, 894 (10th Cir. 1992)
(doubting whether "there is much difference" between the deliberate
indifference standard and the Youngberg standard), with UNITED
STATES DEPARTMENT OF EDUCATION, Washington, D.C. v. New
York City Dep’t of Soc. Servs., 709 F.2d 782, 790 (2d Cir. 1983) (stat-
ing that in Youngberg, "the Court adopted what is essentially a gross
negligence standard"); see also Shaw v. Strackhouse, 920 F.2d 1135,
1146 (3d Cir. 1990) ("Professional judgment, like recklessness and
gross negligence, generally falls somewhere between simple negli-
gence and intentional misconduct."). But wherever the professional
judgment standard belongs on that continuum, we conclude that the
Estate’s evidence is insufficient.

  Because this is an appeal from the granting of summary judgment,
we must view the evidence and all reasonable inferences that can be
                           PATTEN v. NICHOLS                          21
drawn therefrom in the light most favorable to the Estate. See, e.g.,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Therefore,
for purposes of this opinion, we assume that Keller, Maura’s sister,
told Frinks about Maura’s "I’m dying" telephone call and about the
family’s concern over the apparent increase in Maura’s breathing
problems in the same telephone call, before the defendants spoke with
Maura in the hallway. We also assume that Maura was breathing
more heavily than usual at the time of Keller’s phone call. Finally, we
assume that Frinks in fact told Nichols about the family’s concern
before the defendants met with Maura. But even with these assump-
tions, we cannot conclude that the Estate’s evidence demonstrates that
the defendants failed to exercise professional judgment.

   When Frinks learned of Maura’s phone call and the family’s con-
cern about Maura’s breathing problems, she took that information
seriously enough to immediately inform Nichols about it. Nichols
likewise took the information seriously enough to immediately seek
out Maura so that he could evaluate the situation. They spoke to
Maura for ten minutes or more, from a distance of a few feet away.
According to the testimony of the defendants, Maura explained her
"dying" telephone call as simply a way to get her family involved in
her campaign to be taken off clozapine. The defendants were well
acquainted with Maura’s physical condition and her "baseline" level
of functioning, and they testified in their depositions that Maura
exhibited no physical symptoms of increased respiratory problems or
otherwise gave them any reason to suspect that her condition was
deteriorating. Thus, the evidence establishes that the defendants in
fact took immediate action when they learned of Maura’s phone call
and that, after talking to Maura and observing and evaluating her, the
defendants were satisfied that Maura was not in danger. While the
defendants’ belief might have turned out to have been wrong, their
actions nonetheless exhibited both professional concern and judgment
and therefore were sufficient to satisfy the requirements of Young-
berg. See Youngberg, 457 U.S. at 321 ("[T]he Constitution only
requires that the courts make certain that professional judgment in
fact was exercised. It is not appropriate for the courts to specify which
of several professionally acceptable choices should have been made."
(internal quotation marks omitted)).

  Unlike the Estate, we do not believe that this conclusion is affected
by the evidence showing that Frinks and Nichols knew Maura’s
22                        PATTEN v. NICHOLS
breathing was more labored during the phone conversation between
Frinks and Maura’s sister, which took place shortly before the hall-
way meeting with Maura. The Estate contends that from this evidence
it is reasonable to infer that, contrary to the defendants’ testimony,
Maura was experiencing breathing problems during the hallway meet-
ing. The Estate argues that the jury therefore could find a violation of
the professional judgment standard from the defendants’ failure to
treat Maura’s worsening breathing problems. We are not convinced,
however, that the inference urged by the Estate is a proper one.

   The pathologist who supervised Maura’s autopsy found evidence
that Maura had episodes of congestive heart failure, which would
have caused wheezing and shortness of breath, but he acknowledged
that this shortness of breath might have occurred only shortly before
Maura’s death. Moreover, one of the Estate’s own experts stated that
a "waxing and waning" of symptoms was "not inconsistent with folks
who have pretty far-advanced COPD." J.A. 228. In light of this evi-
dence, we question whether it is reasonable to infer from a prior epi-
sode of breathing problems that Maura was having those same
difficulties during her meeting with the defendants. See Sylvia Dev.
Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir. 1995)
("Whether an inference is reasonable cannot be decided in a vacuum;
it must be considered in light of the competing inferences to the con-
trary." (internal quotation marks omitted)). But even when we give
the Estate the benefit of this inference and assume that Maura was
breathing heavily during the hallway meeting, we cannot equate the
defendants’ failure to recognize the significance of the heavy breath-
ing with a failure to exercise professional judgment.

   Although the Estate’s experts characterized the defendants’ actions
as significant departures from the applicable standards of care, the
question is not whether an expert’s report recites the requisite legal
terms of art. Cf. Young, 238 F.3d at 577 ("The presence . . . of a few
conclusory legal terms does not insulate a complaint from dismissal
under Rule 12(b)(6) when the facts alleged in the complaint" do not
support the legal conclusion.). Instead, the question is whether the
evidence provides a factual basis upon which a jury could reasonably
find for the party opposing summary judgment. See Sylvia Dev.
Corp., 48 F.3d at 818 (explaining that the party opposing a summary
judgment motion "must present sufficient evidence such that reason-
                           PATTEN v. NICHOLS                          23
able jurors could find by a preponderance of the evidence for the non-
movant" (internal quotation marks omitted)).

   We have no doubt that the defendants could have done more than
just talk to Maura from across a hallway, and we suspect that the
Estate’s evidence would be sufficient to withstand a motion for sum-
mary judgment if this were simply a medical malpractice case. But,
as discussed above, evidence establishing mere departures from the
applicable standard of care is insufficient to show a constitutional vio-
lation; Youngberg requires that the evidence show "such a substantial
departure from accepted professional judgment, practice, or standards
as to demonstrate that the person responsible actually did not base the
decision on such a judgment." Youngberg, 457 U.S. at 323 (emphasis
added). As explained by Chief Judge Seitz, whose formulation of the
professional judgment standard was adopted by the Youngberg Court,
see 457 U.S. at 321, the professional judgment standard

    is not a malpractice standard. By "accepted professional
    judgment" I do not mean some standard employed by a rea-
    sonable expert or a majority of experts in the community, as
    state malpractice actions would require, but rather that the
    choice in question was not a sham or otherwise illegitimate.
    The jury is to decide only whether the defendants’ conduct
    had some basis in accepted professional opinion. Further-
    more, unlike state malpractice actions, a departure from
    accepted professional judgment must be substantial to give
    rise to liability. Although violations of the standard that I
    have developed would probably contravene state malprac-
    tice standards as well, this does not mean that the two stan-
    dards are coextensive. The "substantial departure from
    accepted professional judgment" standard effectively distin-
    guishes between conduct that violates the minimum require-
    ments of the Constitution and conduct, such as ordinary
    malpractice, that does not.

Romeo v. Youngberg, 644 F.2d 147, 178 (3d Cir. 1980) (en banc)
(Seitz, C.J., concurring) (emphasis added). The Estate’s evidence
shows only that there was more that could have been done by the
defendants. Here, however, such evidence establishes nothing more
than ordinary medical negligence. Cf. Estelle, 429 U.S. at 107 (con-
24                         PATTEN v. NICHOLS
cluding that prisoner’s claim that doctors should have ordered an X-
ray "is a classic example of a matter for medical judgment. A medical
decision not to order an X-ray, or like measures, does not represent
cruel and unusual punishment. At most it is medical malpractice, and
as such the proper forum is the state court under [that state’s tort
claims act]." (emphasis added)).7
   As we explained in a somewhat different context in Charters, the
professional judgment standard "makes inappropriate any attempt by
the courts to determine the ‘correct’ or ‘most appropriate’ medical
decision." Charters, 863 F.2d at 313. Instead, the proper inquiry is
whether the decision was "so completely out of professional bounds
as to make it explicable only as an arbitrary, nonprofessional one.
This standard appropriately defers to the necessarily subjective
aspects of the decisional process of institutional medical professionals
and accords those decisions the presumption of validity due them." Id.
(citation omitted)). Because there is insufficient evidence from which
a jury could conclude that the defendants so substantially departed
from professional standards that their decisions can only be described
as arbitrary and unprofessional, the Estate has failed to create a mate-
rial issue of fact as to whether the defendants can be held liable under
the professional judgment standard.
                                  IV.
   To summarize, we conclude that denial-of-medical-care claims
asserted by involuntarily committed psychiatric patients must be mea-
sured under the "professional judgment" standard established by the
Supreme Court in Youngberg v. Romeo, 457 U.S. 307 (1982). But
even under that standard, the Estate’s evidence is insufficient to sur-
vive the defendants’ motion for summary judgment. We therefore
affirm the district court’s grant of summary judgment in favor of the
defendants on the Estate’s section 1983 claims.
                                                            AFFIRMED
  7
   While Estelle involved an Eighth Amendment claim brought by a
convicted prisoner that was governed by the deliberate indifference stan-
dard, we do not believe that fact lessens the significance of the Court’s
characterization of the inmate’s claim as amounting to no more than
common medical malpractice.
