                           In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 06-1414
DIEGO GIL,
                                            Plaintiff-Appellant,
                              v.

JAMES REED, JAMES PENAFLOR,
and UNITED STATES OF AMERICA,
                                         Defendants-Appellees.
                       ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
         No. 00-C-0724-C—Barbara B. Crabb, Chief Judge.
                       ____________
       ARGUED APRIL 2, 2007—DECIDED JULY 23, 2008
                       ____________


 Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
  ROVNER, Circuit Judge. This is the second time that we
have heard this case and the second time that we vacate
the district court’s grant of summary judgment for the
defendants. See Gil v. Reed, 381 F.3d 649 (7th Cir. 2004).
Diego Gil, a federal prisoner, sued a prison doctor, a
physician’s assistant, and the United States for negli-
gence and malpractice under the Federal Tort Claims
Act. He also claimed that they were deliberately indif-
ferent to his medical needs in violation of the Eighth
Amendment. In Gil’s first appeal we concluded that he
2                                              No. 06-1414

had presented a genuine issue of material fact regarding
whether prison personnel were deliberately indifferent
to his medical needs. On remand the defendants sup-
plemented the record with new evidence, including an
expert report, several declarations, and depositions of
two witnesses, including Gil. Based on that evidence,
the district court granted summary judgment for the
defendants a second time. We once again vacate the
district court’s judgment and remand the case for trial.


                             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,
381 F.3d at 651-54. Gil, who has long suffered from intesti-
nal problems, has been incarcerated in federal prison
since 1993 and is currently housed at the Federal Correc-
tional Institution in Oxford, Wisconsin. In March 1998
Gil had surgery to repair a rectal prolapse, an unpleasant
condition in which the rectal wall slides out of place
and protrudes from the anus, usually during bowel
movements. The surgery was not a success and Gil’s
condition worsened, but when he asked prison staff for
medical aid a physician’s assistant dismissed his visit to
the prison medical center as a “misuse of emergency
care.” Gil showed the physician’s assistant an infection
near his surgical incisions, but he was instructed to re-
turn to his unit.
  Gil did not receive any medical care for several days,
and when doctors finally examined him, his infection had
grown to a golf-ball-sized bulge, which the prison staff
No. 06-1414                                              3

lanced and drained. The prison staff noted that Gil had
an “infection/cellulitis/abscess formation at surgical
site” and prescribed an antibiotic and Tylenol III, a pain-
killer. Gil was informed that the drugs would be avail-
able at the prison’s medication line later that day and
that he should start taking them immediately. As in-
structed 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 antibi-
otic, and when Gil asked why he could not have his
medication, Penaflor threatened him with disciplinary
segregation. The next day Gil successfully obtained the
antibiotics from a different medical staff member. Within
24 hours Gil felt better, although he had to return to
the medical unit several times so the infected bulge
could be lanced and drained.
  Despite the surgery Gil’s medical condition continued
to deteriorate. His rectum prolapsed again, and so he
had to push his protruded rectum back into his body
after every bowel movement. Prison staff repeatedly
denied Gil’s requests to see a colorectal surgeon who
could give him specialized advice regarding his medical
options, but they finally allowed Gil to see a specialist a
year and a half later. That physician, Dr. Michael Kim,
performed a second rectal prolapse surgery on Gil in
May 2000. Following the surgery, Dr. Kim prescribed
Milk of Magnesia, Colace, and Metamucil—all laxa-
tives—to prevent fecal impaction, as well as Vicodin to
treat his pain. Dr. Kim specifically warned Gil against
taking Tylenol III because it caused constipation,
which would worsen his condition. Prison medical staff
gave Gil everything Dr. Kim had prescribed except for
Vicodin, which is evidently not included on the formulary
4                                                  No. 06-1414

of drugs used by the Bureau of Prisons. Instead prison
staff substituted Tylenol III.
  The next day Gil saw Dr. James Reed, the second defen-
dant 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 Amend-
ment rights by unreasonably delaying his surgery.1 Reed
was openly hostile toward Gil after he filed suit; on one
occasion he made Gil wait for 6 hours past his sched-
uled appointment time and then berated Gil for seeking
his medical assistance after suing him. When Gil met
with Reed the day after his second surgery, his suit
against Reed was still pending. At that appointment Gil
told Reed that Dr. Kim had warned him not to take
Tylenol III. Reed prescribed it nonetheless and then
cancelled Gil’s prescriptions for Metamucil and Milk of
Magnesia, although he knew that Gil was suffering from
constipation. Gil saw Reed again three days later and
unsurprisingly complained of constipation, reporting
that he had not had a bowel movement since the opera-
tion 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,


1
  The district court ultimately granted the defendants’ motion
for summary judgment in that suit. See Gil v. Jones, No. 99-C-38-
C, 2000 WL 34235979, at *3 (W.D. Wis. July 20, 2000).
No. 06-1414                                              5

however, was not available at the scheduled time, and
Gil waited for one hour before returning to his cell to lie
down and stanch his bleeding. The next day a different
prison physician advised Gil to stop taking Tylenol III
immediately and substituted Motrin. Two days later
Gil saw Dr. Kim, who was angry that Reed had prescribed
Tylenol III in violation of his post-surgical instructions.
Dr. Kim rewrote his original prescriptions, this time
appending a note requesting that prison staff follow his
instructions, and repeated to Gil his warning against
Tylenol III. Reed nonetheless prescribed Tylenol III for
a third time, and when Gil went to the medication line to
pick up his prescriptions Penaflor gave him only Tylenol
III. Medical staff finally provided Gil with the correct
medications the next day.
  Frustrated with his medical care at the prison, Gil
brought this action on December 21, 2000, suing the
United States for negligence and medical malpractice
under the Federal Tort Claims Act (“FTCA”) and suing
Reed and Penaflor for violating his Eighth Amendment
rights. Gil’s complaint alleged that Penaflor’s refusal to
give him prescribed antibiotics and Reed’s failure to
follow Dr. Kim’s instructions amounted to deliberate
indifference of his serious medical needs, negligence,
and malpractice. Gil also alleged miscellaneous mal-
practice and negligence claims under the FTCA based on
the unavailability of medical care following his first
surgery, the delay in receiving his second surgery, and
other acts of prison officials and medical staff. On the
defendants’ summary judgment motion, the district
court found that because Gil had failed to retain an
expert witness as required by Wisconsin law and instead
named only the doctors who had treated him, he could
6                                              No. 06-1414

not as a matter of law produce the expert testimony
necessary for his FTCA claims to show that his treatment
did not meet a reasonable standard of care. The court
next concluded that Gil had produced no evidence that
he was harmed by Penaflor’s actions. The court also
found that the evidence did not support a claim for
Reed’s deliberate indifference to serious medical needs
because he and Dr. Kim had simply had a difference
of opinion regarding Gil’s post-surgical care. The court
therefore granted summary judgment for the defendants
on both the FTCA claims and the Eighth Amendment
claims. The court also denied Gil’s requests for ap-
pointed counsel.
  Gil appealed, and we vacated the district court’s grant
of summary judgment, reversed the denial of Gil’s
motions for appointed counsel, and remanded the case
to the district court. Gil, 381 F.3d at 664. We held that
the district court erred when it ruled that, because Gil
had failed to provide an expert witness, his FTCA
claims could not survive summary judgment. We con-
cluded that Gil’s FTCA claims should survive sum-
mary judgment under Wisconsin’s expertise rules be-
cause Gil was permitted to rely on his treating physi-
cians to establish the standard of care. Id. at 659-60. Fur-
thermore, we reasoned, under Wisconsin law res ipsa
loquitur could obviate the need to establish the standard
of care through expert testimony. Id. at 661. We also
decided that the district court erred in granting sum-
mary judgment on Gil’s Eighth Amendment claims be-
cause Penaflor’s angry refusal to provide needed anti-
biotics was sufficient to create a genuine issue of fact
regarding his state of mind, id. at 661-62, and Reed’s
actions raised a genuine issue of material fact regarding
No. 06-1414                                                7

whether he was deliberately attempting to prolong or
exacerbate Gil’s constipation, id. at 664. Therefore, we
explained, there was a genuine issue of material fact
regarding whether Reed’s and Penaflor’s conduct consti-
tuted deliberate indifference to Gil’s medical needs. Id.
at 662-63.
  On remand, the defendants submitted declarations
from Reed and Penaflor, expert testimony from a colo-
rectal surgeon, Dr. Bruce Harms, and Dr. Kim’s deposi-
tion testimony. Penaflor, responding to Gil’s claims
against him, stated that he did not remember denying
Gil antibiotics but nonetheless he “would not have pur-
posefully 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 in-
volved in Gil’s first surgery, stated that antibiotics do not
relieve pain and that the delay in Gil’s receipt of anti-
biotics would not “increase the chances that there could
be a severe infection.”
  The defendants also submitted new evidence re-
garding the claims against Reed. Reed stated in his dec-
laration that he discontinued Dr. Kim’s prescriptions
for Milk of Magnesia and Metamucil after Gil’s second
surgery because, in his view, they might cause severe
dehydration. Reed maintained that he continued to pre-
8                                             No. 06-1414

scribe Colace “to prevent fecal impaction from the co-
deine 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 disagree-
ment” and opined that Gil had not, in his estimation, re-
ceived 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 com-
munity.
  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.
No. 06-1414                                              9

   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 indif-
ference when he prescribed Tylenol III instead of Vicodin
and simultaneously cancelled Gil’s prescriptions for
Metamucil and Milk of Magnesia. The court placed par-
ticular 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 Metamucil and Milk of
Magnesia because those drugs would dehydrate Gil and
characterized Reed’s failure to follow Dr. Kim’s instruc-
tions as a difference of opinion between medical profes-
sionals. 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
accordance 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 judgment on his Eighth Amend-
ment and FTCA claims regarding Penaflor’s actions
because the court’s rationale for those decisions—that Gil
had failed to present evidence that he was harmed by
Penaflor’s actions—had already been rejected by this
court in his first appeal and the new evidence on
10                                             No. 06-1414

remand did nothing to revise that conclusion. Gil also
contends that his Eighth Amendment claim against Reed
should be allowed to go forward because there is
enough evidence in the record to show that Reed was
deliberately indifferent to his serious medical needs.
Finally Gil asserts that he should be allowed to proceed
on his FTCA claims based on Reed’s actions because he
has presented evidence that Reed’s post-operative treat-
ment violated the standard of care.
  The standard for reviewing a district court’s grant of
summary judgment is a familiar one, but it bears re-
peating here. We review de novo a district court’s decis-
ion on summary judgment, and we construe all facts and
draw all inferences from those facts in favor of the
nonmoving party. Sherrod v. Lingle, 223 F.3d 605, 610 (7th
Cir. 2000). The district court may grant a motion for
summary judgment only if there is no genuine issue
regarding any material fact. Harney v. Speedway
SuperAmerica, LLC, 526 F.3d 1099, 1103-04 (7th Cir. 2008);
FED. R. CIV. P. 56(c). To overcome a motion for sum-
mary judgment, the record must contain only enough
evidence that a “jury could reasonably find for the
nonmoving party.” Walker v. Sheahan, 526 F.3d 973, 977
(7th Cir. 2008).


                            A.
  The Eighth Amendment imposes a duty on govern-
ment officials to provide medical care to prisoners. Estelle
v. Gamble, 429 U.S. 97, 104-05 (1976); see also Williams v.
Liefer, 491 F.3d 710, 714 (7th Cir. 2007). Prison officials
violate the Eighth Amendment when they are deliberately
indifferent to a prisoner’s serious medical needs. Estelle,
429 U.S. at 104; Williams, 491 F.3d at 714.
No. 06-1414                                               11

   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 evi-
dence 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,
381 F.3d at 662. Dr. Kim’s and Dr. Harms’s testimony do
not undermine that common-sense conclusion. First,
Dr. Harms’s opinion that the delay in receiving anti-
biotics did not harm Gil was based on cases where the
patient does not suffer from cellulitis. But prison med-
ical staff diagnosed Gil with cellulitis just hours before
Penaflor denied his prescription. Drawing all inferences
in favor of Gil, Dr. Harms’s testimony supports the con-
clusion that an antibiotic was necessary for Gil’s post-
surgical recovery. Furthermore, the very fact that prison
medical staff prescribed him an antibiotic is evidence
permitting the inference that the drug was medically
necessary.
  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 anti-
biotics 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 harmed, the district court placed much weight
on Dr. Kim’s testimony that withholding antibiotics
12                                            No. 06-1414

would only cause injury to patients who suffered from
soft-tissue infections so severe that they would re-
quire hospitalization. But there is no evidence that Gil
was not suffering a severe infection aside from the fact
that he was not hospitalized, and although people
with severe infections may usually require hospitaliza-
tion, there is no evidence in the record suggesting that
they always do. Although the record contains new evi-
dence, our conclusion remains the same: Gil has raised a
question of fact on the issue of whether Penaflor harmed
him by withholding his antibiotics.
  Nor is Reed entitled to summary judgment on Gil’s
Eighth Amendment claim. In Gil’s first appeal, we con-
cluded that “prescribing on three occasions the very
medication the specialist warned against because of its
constipating effect (when a non-constipating alterna-
tive was available) while simultaneously cancelling the
two of the three prescribed laxatives gives rise to a gen-
uine issue of material fact about Reed’s state of mind.”
Gil, 381 F.3d at 664. The new evidence in the record
does not undermine this conclusion; instead, the new
evidence submitted on remand is susceptible to multiple
interpretations that must be resolved by a fact-finder.
Reed’s declaration, in which he admits that he prescribed
Gil a laxative to counteract the constipating effects of
Tylenol III, leaves little doubt that he knew the drug
could constipate Gil. Moreover, even if Reed had not
understood Tylenol III’s adverse side effects, Gil relayed
to him Dr. Kim’s warning against the drug. And the
factual record on whether Gil’s other prescribed drugs
caused dehydration (Reed’s explanation for with-
holding them) is inconclusive: Reed says they do, Dr. Kim
says they do not. In any case, Gil has presented suf-
No. 06-1414                                             13

ficient evidence to call into question Reed’s state of mind
when switching from Vicodin to Tylenol III and sim-
ultaneously cancelling the laxatives. This is precisely
the kind of contested factual issue that cannot be resolved
at the summary judgment stage and instead requires
interpretation by a fact-finder. Although Dr. Kim later
testified that he did not believe that Reed provided Gil
with substandard care, this conclusion contradicts his
earlier anger when Reed refused to follow his instruc-
tions. See Gil, 381 F.3d at 653. A reasonable jury
could disregard Dr. Kim’s and Dr. Harms’s conclusory
standard-of-care opinions and instead rely on other
evidence in the record to conclude that Reed acted with
deliberate indifference to Gil’s serious medical needs.
See Walker, 526 F.3d at 979.


                            B.
  In reviewing the district court’s grant of summary
judgment on Gil’s FTCA claims, we look to the substan-
tive law of the place where the malpractice occurred—
here, Wisconsin. 28 U.S.C. § 1346(b)(1). See also Gil, 381
F.3d at 658. Under Wisconsin law, medical malpractice
has the same ingredients as garden-variety negligence
claims: the plaintiff must prove that there was a breach
of a duty owed that results in an injury. See Paul v. Skep,
625 N.W.2d 860, 865 (Wis. 2001). In most cases, Wis-
consin law requires expert testimony to establish medical
negligence, although res ipsa loquitur can substitute for
expert testimony. See Gil, 381 F.3d at 659; Christianson v.
Downs, 279 N.W.2d 918, 921 (Wis. 1979); Richards v.
Mendivil, 584 N.W.2d 85, 89 n.5 (Wis. Ct. App. 1996). Thus
under Wisconsin law Gil must provide an expert opinion
that he was harmed because of Penaflor’s and Reed’s
14                                                  No. 06-1414

negligence. Alternatively, he may show that an ordinary
person could conclude from common experience that
he could not have been injured had his medical pro-
viders exercised care. Richards, 548 N.W.2d at 89 n.5.2
  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 defend-
ant’s agents . . . to supply evidence regarding the appro-
priate standard of care.” See Gil, 381 F.3d at 659. On
remand Dr. Kim and Dr. Harms summarily opined that
Reed had met the standard of care, but other contra-
dictory portions of their testimony might undermine
these conclusory opinions. A rational jury could deter-
mine from their inconsistent testimony that Reed did not
meet the standard of care. Moreover, a layman could
decide, based on common experience aside from the


2
   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 exclusively. See Gil,
381 F.3d at 659. The federal rule, unlike the Wisconsin one,
holds that “no expert testimony is needed when the symptoms
exhibited are not beyond a layperson’s grasp.” Id. In FTCA
cases, state law applies to substantive questions and federal
rules govern procedural matters. See Arpin v. United States,
521 F.3d 769, 776 (7th Cir. 2008). But whether Wisconsin’s
expert witness requirement is substantive or procedural, the
difference between the Wisconsin rule and the federal rule is
subtle, if there is a difference at all. In any event the disposi-
tion of this case does not hinge on the distinction. We therefore
do not answer the question here.
No. 06-1414                                              15

doctors’ testimony, that Penaflor’s and Reed’s treatment
of Gil fell short of appropriate treatment. Gil is entitled
to rely on the defendants’ expert testimony as well as
res ipsa loquitor under Wisconsin law with respect to all of
his FTCA claims, including his miscellaneous claims for
negligence. Because the factual record as it stands permits
multiple interpretations, those inconsistencies cannot
be resolved at the summary judgment phase.
  But because the district court granted summary judg-
ment 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 neces-
sarily can do so with respect to his less stringent FTCA
claims. See Del Raine v. Williford, 32 F.3d 1024, 1031 (7th
Cir. 1994) (explaining that “deliberate indifference de-
scribes a state of mind more blameworthy than negli-
gence”). The district court’s rationale for denying Gil’s
FTCA claims is wrong for the same reasons as its deci-
sion on his Eighth Amendment claims, and Gil must be
allowed to go to trial on them as well.


                            III.
  We therefore VACATE the district court’s grant of sum-
mary judgment in favor of the defendants and REMAND
the case for trial on all claims.




                   USCA-02-C-0072—7-23-08
