In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 15-1647
CALVIN WHITING,
                                                 Plaintiff-Appellant,

                                v.

WEXFORD HEALTH SOURCES, INC.,
and ALFONSO DAVID,
                                              Defendants-Appellees.
                    ____________________

        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
            No. 12 C 2917 — Elaine E. Bucklo, Judge.
                    ____________________

  ARGUED OCTOBER 26, 2015 — DECIDED OCTOBER 12, 2016
                    ____________________

   Before WOOD, Chief Judge, BAUER and SYKES, Circuit
Judges.
   SYKES, Circuit Judge. While serving a probation-revocation
sentence in an Illinois prison, Calvin Whiting fell ill with
what turned out to be a rare form of non-Hodgkin’s lym-
phoma. A prison doctor initially diagnosed an infection and
prescribed antibiotics and nonprescription pain relievers. It
2                                                 No. 15-1647

was not until two months later that the doctor ordered a
biopsy and the cancer was discovered.
    Whiting filed this lawsuit under 42 U.S.C. § 1983 against
the prison doctor and the prison’s private medical provider
alleging that they were deliberately indifferent to his serious
medical needs during the two months that his cancer went
undiagnosed. The district court granted summary judgment
to both defendants. We affirm.
                       I. Background
    Calvin Whiting violated the terms of his probation on an
Illinois burglary conviction and was sent to the Shawnee
Correctional Center in Vienna, Illinois, in July 2010. Wexford
Health Sources, Inc., provides medical services for inmates
in Illinois prisons. Dr. Alfonso David is the medical director
at Shawnee. On October 15, 2010, Whiting went to the
prison’s medical center seeking treatment for pain in his left
jaw, left ear, and groin; he also discovered nodules develop-
ing in these areas. A nurse examined him and thought he
had an ear infection; she gave him amoxicillin (an antibiotic)
and Motrin.
     About a week later Whiting returned to the medical cen-
ter complaining that his pain had worsened and the amoxi-
cillin had given him a rash. He was given Bactrim, a differ-
ent antibiotic, instead. Chest and abdominal x-rays also were
ordered. Dr. David is listed as the prescribing physician for
these orders, but it’s not entirely clear whether he or the
nurse saw Whiting that day.
   Over the next few days, Whiting told two different nurs-
es that his pain and the bumps were getting worse. The
nurses gave him Tylenol and scheduled an examination with
No. 15-1647                                                3

Dr. David. On October 26 Whiting was sick enough to be
admitted to the infirmary. Dr. David saw him the next day.
    Dr. David’s observations from the October 27 examina-
tion indicate that Whiting’s pain was continuing (and possi-
bly worsening), his lymph nodes were swollen, and he had
developed a mass in his jaw. Dr. David ordered blood work
and submitted a biopsy request to Wexford’s “Collegial
Review Committee.” This “committee”—just Dr. David
himself and one other physician—denied the biopsy request
on November 1. The two doctors decided to try two different
antibiotics (doxycycline and Augmentin), one after the other,
and proceed with a biopsy if this course of treatment did not
work. Dr. David implemented this treatment plan that same
day. Whiting continued to receive nonprescription pain
medication.
   The first few days on the new antibiotic regimen showed
promise: Two nurses reported some improvement in Whit-
ing’s condition. But by November 7 Whiting was reporting
new bumps and increased pain. On November 29 a nurse
observed many more bumps and scheduled another ap-
pointment with Dr. David. On December 2 Dr. David exam-
ined Whiting and resubmitted the biopsy request. It was
approved four days later, and the biopsy was performed on
December 21, almost two full months after Dr. David first
submitted the biopsy request to the “committee.” The results
revealed that Whiting had a rare type of non-Hodgkin’s
lymphoma.
    Dr. David referred Whiting to an outside oncologist,
Dr. Mahnaz Lary, who diagnosed Stage IV SLK positive
anaplastic large cell lymphoma, a rare and aggressive form
of the disease. Chemotherapy began in early January 2011.
4                                                      No. 15-1647

In June 2011 Whiting’s lymphoma appeared to be in com-
plete remission, but by August the disease had returned.
Whiting began another round of chemotherapy. In October
2011 he was approved for a stem-cell transplant at Barnes
Jewish Hospital in St. Louis. A scan in December 2011
showed the lymphoma again in remission.
    Whiting’s prison sentence ended in January 2012. After
his release he received additional chemotherapy and a stem-
cell transplant at the University of Chicago Medical Center.
A biopsy in June 2012 brought bad news: the lymphoma was
back. Since then Whiting has been receiving palliative
chemotherapy and remains a candidate for another stem-cell
transplant.
    Whiting filed this suit against Dr. David and Wexford
alleging that they were deliberately indifferent to his serious
medical needs in violation of the Eighth Amendment. 1 His
claim focuses on the period from late October 2010, when
Dr. David first examined him, and early January 2011, when
chemotherapy began. Whiting argues that the decision to
postpone the biopsy and continue to treat him for an infec-
tion forced him to endure severe pain during this two-month
period.
   Both defendants moved for summary judgment.
Dr. David argued that the evidence was insufficient to
support an inference that he acted with the necessary culpa-
ble state of mind. Wexford argued that Whiting failed to
produce evidence showing that his injury was caused by a
policy or custom, a necessary element for liability under

1 The suit named other defendants as well, but Whiting did not pursue
his claims against them.
No. 15-1647                                                  5

Monell v. Department of Social Services, 

(1978).
The district judge accepted these arguments and entered
judgment for the defendants.
                        II. Discussion
    We review the court’s order granting summary judgment
de novo, viewing the evidence and drawing all reasonable
inferences in Whiting’s favor. Burton v. Downey, 

,
783 (7th Cir. 2015). Summary judgment is appropriate if
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). A factual dispute is “genuine” “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 

, 248 (1986).
A. Dr. David
    “[D]eliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction
of pain’ proscribed by the Eighth Amendment.” Estelle v.
Gamble, 

, 104 (1976) (quoting Gregg v. Georgia,

, 173 (1976)) (citation omitted). To prevail on a
deliberate-indifference claim, the plaintiff must prove that he
suffered from “(1) an objectively serious medical condition
to which (2) a state official was deliberately, that is subjec-
tively, indifferent.” Duckworth v. Ahmad, 

, 679
(7th Cir. 2008). Lymphoma is an objectively serious medical
condition, and Whiting submitted expert testimony that he
would have suffered significantly less pain during Novem-
ber and December of 2010 if a biopsy had been ordered and
chemotherapy begun. As in many deliberate-indifference
cases, the dispute rests on the second element of the claim.
6                                                   No. 15-1647

    A prison official is deliberately indifferent only if he
“knows of and disregards an excessive risk to inmate health
or safety.” Farmer v. Brennan, 

, 837 (1994). The
state-of-mind element is measured subjectively: The defend-
ant must know of facts from which he could infer that a
substantial risk of serious harm exists, and he must actually
draw the inference. Id.; see also Petties v. Carter, No. 14-2674,

, at *3 (7th Cir. Aug. 25, 2016) (en banc)
(“[T]he Supreme Court has instructed us that a plaintiff must
provide evidence that an official actually knew of and disre-
garded a substantial risk of harm.”). The requirement of
subjective awareness tethers the deliberate-indifference
cause of action to the Eighth Amendment’s prohibition of
cruel and unusual punishment; “an inadvertent failure to
provide adequate medical care cannot be said to constitute
‘an unnecessary and wanton infliction of pain.’” 

(emphasis added).
    When a prison medical professional is accused of provid-
ing inadequate treatment (in contrast to no treatment), evalu-
ating the subjective state-of-mind element can be difficult.
It’s clear that evidence of medical negligence is not enough
to prove deliberate indifference. 

(“Medical mal-
practice does not become a constitutional violation merely
because the victim is a prisoner.”); Petties, 

,
at *3 (“[P]laintiffs must show more than mere evidence of
malpractice to prove deliberate indifference.”); see also McGee
v. Adams, 

, 481 (7th Cir. 2013); 

(“Deliberate indifference is not medical
malpractice; the Eighth Amendment does not codify com-
mon law torts.”); Greeno v. Daley, 

, 653 (7th Cir.
2005) (“[N]either medical malpractice nor a mere disagree-
ment with a doctor’s medical judgment amounts to deliber-
No. 15-1647                                                7

ate indifference.”). So without more, a mistake in profes-
sional judgment cannot be deliberate indifference.
      By definition a treatment decision that’s based
      on professional judgment cannot evince delib-
      erate indifference because professional judg-
      ment implies a choice of what the defendant
      believed to be the best course of treatment. A
      doctor who claims to have exercised profes-
      sional judgment is effectively asserting that he
      lacked a sufficiently culpable mental state, and
      if no reasonable jury could discredit that claim,
      the doctor is entitled to summary judgment.
Zaya v. Sood, No. 15-1470, 

, at *3 (7th Cir.
Sept. 6, 2016).
    On the other hand, “where evidence exists that the de-
fendant[] knew better than to make the medical decision[]
that [he] did,” then summary judgment is improper and the
claim should be submitted to a jury. Petties, 

, at *5. State-of-mind evidence sufficient to create a
jury question might include the obviousness of the risk from
a particular course of medical treatment, 

the de-
fendant’s persistence in “a course of treatment known to be
ineffective,” id.; or proof that the defendant’s treatment
decision departed so radically from “accepted professional
judgment, practice, or standards” that a jury may reasonably
infer that the decision was not based on professional judg-
ment, 

omitted).
   No evidence in this case supports an inference that
Dr. David “knew better” than to pursue the course of treat-
ment that he did. He explained in his deposition that alt-
8                                                 No. 15-1647

hough he considered the possibility of lymphoma, he
thought Whiting had an infection and treated him for that
condition, putting off an invasive biopsy until it was clear
that aggressive antibiotic treatment wasn’t working. Whiting
argues that Dr. David’s decision on November 1 to try two
more antibiotics when the first two were ineffective is suffi-
cient for a jury to infer that the doctor was deliberately
indifferent. But no expert testified that Dr. David’s chosen
course of treatment was a substantial departure from accept-
ed medical judgment, and the decision was not so obviously
wrong that a layperson could draw the required inference
about the doctor’s state of mind without expert testimony.
    Our decision in Duckworth is instructive on this point.
There we confronted a claim that two prison physicians
should have ordered a cystoscopy to rule out bladder cancer
as soon as they noticed blood in the plaintiff’s urine. The
first physician didn’t suspect cancer; the second physician
was aware of the cancer risk but thought that the plaintiff
had another condition and pursued a course of treatment
consistent with that 

–81. The
plaintiff provided expert testimony from an experienced
urologist that cancer should always be ruled out when a
patient has blood in his urine. 

We held that the
expert’s testimony showed only “how a reasonable doctor
would treat Duckworth’s symptoms, but it [did] not shed
any light into [the defendant’s] state of mind.” 

words, it “just … reiterate[d] the standard for medical
malpractice, which falls short of deliberate indifference.” 

here falls even further short of what’s re-
quired. Whiting doesn’t have any expert testimony indicat-
ing that Dr. David’s infection diagnosis and concomitant
No. 15-1647                                                  9

treatment plan departed from accepted medical practice,
much less substantially so.
    Whiting compares his case to Hayes v. Snyder, 

(7th Cir. 2008), but the similarities are superficial. The
prison physician in Hayes gave the plaintiff an antibiotic and
Tylenol III for obvious and excruciatingly painful testicular
cysts; he also refused to authorize a referral to a specialist.
Unlike this case, the plaintiff in Hayes produced considerable
evidence showing that the physician’s choice of treatment
was not based on a mere mistake in professional judgment.
For example, the physician—the medical director at the
prison—acknowledged in his deposition that other prison
doctors who saw the plaintiff ordered prescription-strength
pain medication and a referral to a specialist. 

The
defendant’s approval was required before these steps could
be taken, but he “refused to give that approval,” asserting an
after-the-fact justification that he didn’t have the proper
paperwork. 

claimed, implausibly, that he
“wouldn’t know which specialist to send [the plaintiff] to”
without more clinical information. 

We concluded
on these facts that the evidence was sufficient for a fact
finder to conclude that the doctor was subjectively indiffer-
ent to the plaintiff’s medical needs. 

contrast, the record contains no evidence from
which a jury could infer that Dr. David was subjectively
indifferent to Whiting’s condition—in short, that Dr. David
knew that the additional antibiotics would be ineffectual but
persisted in this course of treatment anyway. Without expert
testimony a lay jury could not infer that because amoxicillin
and Bactrim did not work, it was obvious to Dr. David that
the doxycycline and Augmentin also would fail. To survive
10                                                   No. 15-1647

summary judgment Whiting needed to present evidence
sufficient to show that Dr. David’s decision was “so far
afield of accepted professional standards as to raise the
inference that it was not actually based on a medical judg-
ment.” Norfleet v. Webster, 

, 396 (7th Cir. 2006).
He did not do so. The district court properly granted sum-
mary judgment for Dr. David.
B. Wexford
    Whiting’s claim against Wexford meets the same fate.
Wexford is a private corporation, but we’ve held that the
Monell theory of municipal liability applies in § 1983 claims
brought against private companies that act under color of
state law. Shields v. Ill. Dept. of Corr., 

(7th Cir.
2014) (noting every circuit court that has addressed the issue
has extended the Monell standard to private corporations
acting under color of state law). To prevail on his Monell
claim, Whiting needs to show that Wexford’s policy, prac-
tice, or custom, caused a constitutional violation. Thomas v.
Cook Cty. Sheriff’s Dep’t, 

, 303 (7th Cir. 2009). This
requirement can be satisfied by evidence that “an official
with final policy-making authority” acted for the corpora-
tion. 

theory Whiting invokes on appeal: He
argues that Dr. David was a final policymaker for Wexford.
    But Whiting’s filings in the district court weren’t entirely
clear on this point, so the argument is probably waived.
Everroad v. Scott Truck Sys., Inc., 

, 480 (7th Cir.
2010). Waiver aside, the claim fails on the merits for two
independent reasons.
    First, Dr. David did not have final policymaking authori-
ty in the relevant sense. He may have had the final say on
No. 15-1647                                                   11

Whiting’s treatment plan and thus was the final decision-
maker with respect to his care, but that’s not nearly enough
to show he was the final policymaker. See Valentino v. Village of
South Chicago Heights, 

, 675 (7th Cir. 2009) (not-
ing difference between having decision-making authority for
some decisions and having the responsibility “for establish-
ing final government policy on a particular issue”).
   Second, Whiting’s theory of Monell liability is contingent
on a finding that Dr. David, the ostensible final policymaker,
was individually liable for deliberate indifference. Our
decision in Thomas makes clear that Monell liability does not
always require a finding of individual 

. But if the plaintiff’s theory of Monell liability rests
entirely on individual liability, as Whiting’s does here,
negating individual liability will automatically preclude a
finding of Monell liability. 

                                                 No. 15-1647

    WOOD, Chief Judge, concurring in part and dissenting in
part. Calvin Whiting is suffering from a deadly disease: a rare
form of non-Hodgkin’s lymphoma. The Mayo Clinic’s website
describes this as “a cancer that originates in your lymphatic
system,” and then spreads throughout the body. See Non-
Hodgkin’s       lymphoma,        Definition,    MAYO      CLINIC,
http://www.mayoclinic.org/diseases-conditions/non-hodg-
kins-lymphoma/basics/definition/con-20027792 (last visited
Oct. 12, 2016). Whiting fell ill while he was serving a sentence
in Illinois’s Shawnee Correctional Center for a probation vio-
lation, and so of necessity he turned for help to the prison doc-
tors. Dr. Alfonso David, the medical director at Shawnee and
an employee of Wexford Health Sources, Inc., the company
that holds the contract for medical services at that institution,
was Whiting’s treating physician.
    It took Dr. David almost two months from Whiting’s first
visit to the infirmary in mid-October 2010 to get approval for
a biopsy of nodules in Whiting’s swollen lymph nodes, even
though he had power to order one if he deemed it an “emer-
gency.” Despite the fact that Whiting presented not only with
pain in his left jaw and his ear, but also with nodules and pain
in his groin, a nurse at Shawnee thought he had an ear or
throat infection and gave him amoxicillin (plus Motrin for his
pain). The amoxicillin caused a rash, and so a few days later
Dr. David switched him to Bactrim and ordered chest and ab-
dominal x-rays. Those results showed enlarged cervical
(neck) nodes and a mass in Whiting’s left jawbone. Whiting
was also complaining of severe pain. It was then that Dr. Da-
vid suggested a biopsy of the nodules to a second colleague,
who vetoed that course. (Defendants describe this as submis-
sion to a “review committee,” but that is a bit grandiose for a
No. 15-1647                                                13

simple process through which one doctor consults with a sec-
ond and allows the second to override his recommendation.)
    During November and December, Dr. David continued
with the fruitless course of antibiotics, although he changed
the particular drugs to doxycycline and Augmentin. In early
December, he again suggested a biopsy to the other colleague.
This time the two agreed to order the biopsy. It was performed
on December 21 and revealed that Whiting had Stage IV SLK
positive anaplastic large cell lymphoma. (A group called the
Lymphoma Research Foundation describes this as a rare type
of aggressive T-cell lymphoma, which can progress rapidly
without treatment. See LYMPHOMA RESEARCH FOUNDATION,
http://www.lymphoma.org/site/pp.asp?c=bkLTKaOQLmK8E
&b=6293639 (last visited Oct. 12, 2016).) Whiting began chem-
otherapy at that point and has continued his battle with can-
cer, cycling between remission and relapse.
    Focusing only on the two months between his first visit to
Dr. David and the start of his chemotherapy, Whiting sued
both Dr. David and Wexford, contending that the care he re-
ceived violated his Eighth Amendment right to be free from
cruel and unusual punishment. See Estelle v. Gamble, 

(1976). During that period, he contends, he was in severe
pain and his cancer was going untreated. Dr. David knew that
Whiting was suffering and that a biopsy was necessary, yet he
proceeded on a “business as usual” basis. Dr. Nancy Bartlett,
who treated Whiting later at Barnes Jewish Hospital in St.
Louis, described this delay in treatment as “cruel and unu-
sual.” Whiting’s treating oncologist after his release from
Shawnee, Dr. Justin Kline, said much the same thing. Dr. Kline
opined that if chemotherapy had been started right away, it
would have had two desirable effects: alleviation of Whiting’s
14                                                     No. 15-1647

pain and destroying the cancer. He also declared that Whiting
“would not have experienced the pain he did between Octo-
ber 27, 2010, and January 2011” if the biopsy had been per-
formed when Dr. David first mentioned that possibility.
    The district court granted summary judgment for both de-
fendants, and my colleagues have voted to affirm. I agree with
them that Whiting’s case against Wexford was properly re-
jected, but, without taking any position on the ultimate out-
come, I would reverse and remand for further proceedings
against Dr. David.
     It is well established that a prisoner asserting an Eighth
Amendment claim based on the medical care he received
must show two things: first, that he has a serious medical
need, and second that the defendant was deliberately indif-
ferent—not merely negligent or oblivious—to his needs. Gam-

; see also Farmer v. Brennan, 

, 835
(1994). I focus here only on the subjective element of the test,
because all members of this panel agree with the district court
that there was enough evidence to reach a jury on the objec-
tive element. This is the same type of case as the one we con-
sidered in Petties v. Carter, No. 14-2674, 

(7th
Cir. Aug. 25, 2016) (en banc), in which the inmate received
some medical care, but the facts permit more than an inference
of medical malpractice—they permit an inference of deliber-
ate indifference.
    The critical point that Petties established is that the furnish-
ing of some care does not automatically defeat an Eighth
Amendment claim (raised through the Fourteenth Amend-
ment for a state prisoner). Instead, as Petties held, it is essential
to “look at the totality of an inmate’s medical care when con-
sidering whether that care evidences deliberate indifference
No. 15-1647                                                  15

to serious medical needs.” 

We went on to say that
“[i]f a risk from a particular course of medical treatment (or
lack thereof) is obvious enough, a factfinder can infer that a
prison official knew about it and disregarded it.” 

that the line between (minimally) competent
medical judgment and deliberate indifference can be difficult
to draw, we gave several examples of situations in which a
finding of an Eighth Amendment violation is possible. At
least two of them fit Whiting’s allegations: “[persistence] in a
course of treatment known to be ineffective,” 

and the
choice of “an easier and less efficacious treatment without ex-
ercising professional judgment,” 

(internal quotation
marks omitted). We summarized the central point as follows:
       [R]epeatedly, we have rejected the notion that
       the provision of some care means the doctor
       provided medical treatment which meets the
       basic requirements of the Eighth Amendment.
       Rather, the context surrounding a doctor’s treat-
       ment decision can sometimes override his
       claimed ignorance of the risks stemming from
       that decision. When a doctor says he did not re-
       alize his treatment decisions (or lack thereof)
       could cause serious harm to a plaintiff, a jury is
       entitled to weigh that explanation against cer-
       tain clues that the doctor did know.

view, the rule most recently reaffirmed in Petties
(dating back to Gamble) governs Whiting’s case. It would be
possible on this record for a jury to conclude that Dr. David
was exercising his medical judgment over the critical period,
even if that judgment was mistaken or even negligent. He saw
16                                                   No. 15-1647

Whiting on several occasions; he tried various antibiotics,
which he says he regarded as conservative responses to Whit-
ing’s symptoms, and the antibiotic treatments at times seemed
to be having some positive effect. He did not perceive Whit-
ing’s situation to be an emergency, and so he did not exercise
his limited authority to order a biopsy on his own. Instead, he
invoked the “Collegial Review Committee” process described
above.
    But that is not the only inference that is possible from these
facts. Whiting has brought forth evidence that would permit
a trier of fact to infer deliberate indifference. No one, Dr. Da-
vid included, paid any attention to the fact that nodules were
not limited to Whiting’s neck and face, but instead were also
in his groin. A jury could conclude that Dr. David paid no
heed to the fact that the antibiotics and Motrin he was pre-
scribing for Whiting’s pain were, by Whiting’s account, utterly
ineffective. Had he checked the medical records, he would
have seen that Whiting repeatedly informed Shawnee’s med-
ical unit that he was in extreme pain. In McGowan v. Hulick,

(7th Cir. 2010)—decided before Whiting’s first
complaint about nodules in his left jaw and groin, and accom-
panying pain—we reaffirmed that “[a] delay in treatment
may constitute deliberate indifference if the delay exacer-
bated the injury or unnecessarily prolonged an inmate’s
pain.” 

(citing Gam

–05); Gayton v.
McCoy, 

, 619 (7th Cir. 2010); and Edwards v. Snyder,

, 832 (7th Cir. 2007). See also Petties, 

at *5; Arnett v. Webster, 

, 753 (7th Cir.
2011). A delay when the physician recognizes that the condi-
tion may be life-threatening (as Dr. David did, given his initial
request for a biopsy) is even more troublesome. Perhaps if Dr.
No. 15-1647                                                   17

David had tried one or two courses of antibiotics before mov-
ing to more serious measures, this case would be different.
But a jury could find that it was apparent by the time the third
and fourth antibiotics were tried that this course of treatment
was ineffective for both the underlying condition and the
pain.
    Finally, the existence of the so-called collegial review
mechanism does not compel summary judgment in favor of
Dr. David. It is, in effect, a device to obtain a second opinion.
As the record presently stands, it is unclear whether the sec-
ond doctor’s “no” automatically trumps the treating physi-
cian’s judgment that a procedure is necessary (a situation that
would undermine a finding of deliberate indifference on the
first doctor’s part), or if the second doctor just has an oppor-
tunity to persuade the first doctor to reconsider his opinion.
The former does not strike me as “collegial,” and the latter is
not something that deserves to be called a “review.” Nothing
reveals whether, or why, Dr. David changed his mind about
the need for a biopsy at the end of October. Taking the facts
and reasonable inferences from them in the light most favor-
able to Whiting, I must assume that Dr. David saw no reason
to invoke his authority to override the second doctor and ob-
tain a biopsy on an urgent basis. A jury would be entitled to
infer deliberate indifference to Whiting’s serious medical
need on the basis of those facts.
    Looking at the record as a whole in the light most favora-
ble to Whiting, I conclude that summary judgment in Dr. Da-
vid’s favor should not have been granted. I therefore dissent
to that extent and would order further proceedings on this
part of the case.