What did Dr. Foote do? He arranged consultations with a medical specialist who offered surgery to correct the condition; when the patient declined surgery, Dr. Foote issued pain-killers, prescribed and arranged the replacement of corrective footwear, arranged housing on the first floor of the prison to reduce stair-climbing, and excused the prisoner from work detail. Altogether, Dr. Foote saw his patient dozens of times. These facts most closely resemble the facts in the
Estelle opinion, which of course rejected the claim of deliberate indifference. In
Estelle, the inmate contended “that more should have been done by way of diagnosis and treatment, and suggest[ed] a number of options that were not pursued.”
429 U.S. at 107, 97 S.Ct. at 292–93. Nevertheless, because the prisoner was “seen by medical personnel on 17 occasions spanning a 3–month period,”
id., the Supreme Court found that the prisoner did not make out a cognizable Eighth Amendment claim. And that case involved the dismissal of a
pro se complaint for failure to state a claim under a standard far more liberal than the one a counseled plaintiff must satisfy to overcome a defense of qualified immunity. The record of Dr. Foote's services to Hathaway reflects far greater solicitude, attention and care.