Reaffirming the “Verifying Medical Evidence” Rule and Expert Causation for Delay-Based Eighth Amendment Claims: Commentary on McMillen v. Wexford Health Sources, Inc. (7th Cir. 2025)

Introduction

In Gregory McMillen v. Wexford Health Sources, Inc., the United States Court of Appeals for the Seventh Circuit affirmed summary judgment for prison medical personnel and the prison’s healthcare contractor on an Illinois prisoner’s Eighth Amendment deliberate indifference claims. The case centers on whether delays in ophthalmologic care and the management of cardiac and pulmonary symptoms amounted to unconstitutional deliberate indifference, and—crucially—whether the plaintiff introduced admissible, verifying medical evidence that the delays, rather than his serious underlying conditions, caused him harm.

The panel (Judges Easterbrook, Kirsch, and Pryor) decided the matter without oral argument and issued a nonprecedential disposition on September 4, 2025. Although nonprecedential (citable only consistent with Fed. R. App. P. 32.1), the decision crystallizes and applies several recurring Seventh Circuit principles: the subjective knowledge requirement under Farmer v. Brennan, the “verifying medical evidence” requirement for delay-of-treatment claims, the distinction between treatment disagreements and constitutional violations, and the need for expert testimony when causation involves complex medical questions.

Parties and posture:

Plaintiff-Appellant: Gregory McMillen, Illinois prisoner with longstanding diabetes-related eye disease and cardiac/pulmonary issues.
Defendants-Appellees: Wexford Health Sources, Inc. (the prison’s healthcare contractor); the estate of Dr. Saleh Obaisi (former medical director); and Dr. Rozel Elazegui (interim medical director).
Procedural posture: Appeal from the Northern District of Illinois (Judge John F. Kness) granting summary judgment to defendants.

Summary of the Judgment

The Seventh Circuit affirmed summary judgment in favor of all defendants. The court held that:

No reasonable jury could find that the prison doctors were deliberately indifferent to McMillen’s medical needs.
McMillen failed to present verifying medical evidence that delays in ophthalmologic treatment or cardiopulmonary referrals caused him harm above and beyond his underlying conditions.
On the eye-care claim, defendants’ expert opined that vision loss did not occur during treatment gaps and was attributable to preexisting disease; McMillen did not counter with expert evidence.
On the cardiac/pulmonary claims, the record did not show that the doctors knew nebulizer treatments were ineffective or that any alleged delays in specialist follow-up aggravated his conditions.
Because the record foreclosed deliberate indifference, the court denied McMillen’s renewed motion for recruitment of counsel and affirmed the district court’s judgment.

Factual Context in Brief

The case spans several years of medical care:

Diabetic eye disease (retinopathy and macular edema) diagnosed by outside ophthalmologists (Drs. Civantos and Lim). After intravitreal injections in April and November 2016, follow-up visits did not occur on the one-month schedule recommended by Dr. Lim. In February 2017, Dr. Lim noted macular atrophy in the left eye; by December 2017, Dr. Civantos concluded left-eye vision loss was permanent and injections would not help that eye.
Cardiac/pulmonary course included April 2017 hospitalization for severe chest pain, continued asthma therapy (nebulizers), later cardiology consultations (July 2017 and January 2018) with a referral recommendation to pulmonology, an April 2018 hospitalization (pneumonia with COPD exacerbation), discharge with a portable defibrillator, and a June 2018 pulmonology team evaluation that suggested further testing but no new diagnosis or treatment change.

Analysis

Precedents Cited and Their Role

Farmer v. Brennan, 511 U.S. 825 (1994):
The touchstone for Eighth Amendment medical claims: a plaintiff must show (1) an objectively serious medical need and (2) that the defendant was subjectively aware of and consciously disregarded an excessive risk to health. The defendants conceded the seriousness of McMillen’s conditions; the appellate focus was therefore on subjective knowledge/disregard and causation of harm.
Arce v. Wexford Health Sources, Inc., 75 F.4th 673 (7th Cir. 2023):
Reiterates that in “delay in treatment” cases, a prisoner must provide verifying medical evidence that the delay—not merely the underlying illness—caused harm. The panel directly invoked Arce both for the summary judgment standard (viewing facts in the light most favorable to the nonmovant) and the verifying evidence requirement for causation.
Gabb v. Wexford Health Sources, Inc., 945 F.3d 1027 (7th Cir. 2019):
Cited to underscore that plaintiffs must tie alleged harm to the delay itself; generalized deterioration from the illness does not suffice without evidence connecting it to the delay.
Williams v. Liefer, 491 F.3d 710 (7th Cir. 2007):
Clarifies what can constitute “verifying medical evidence” at summary judgment. Medical records can sometimes suffice, but a mere “bare recitation of treatment received” and follow-up schedules is not enough in a medically complex causation scenario. The court relied on Williams to reject McMillen’s attempt to infer causation from appointments alone.
Cesal v. Moats, 851 F.3d 714 (7th Cir. 2017):
Persistence in a treatment the physician knows is ineffective may show deliberate indifference. The panel used Cesal to frame the argument but concluded that four months of nebulizer treatment for an asthmatic patient did not depart so far from professional standards as to be “cruel and unusual,” particularly absent proof of the doctor’s subjective awareness of ineffectiveness.
Lewis v. Sood, 126 F.4th 525 (7th Cir. 2025):
Reaffirms that mere disagreement with a chosen course of care is not deliberate indifference. Applied here to reject McMillen’s dissatisfaction with asthma-management choices in the months leading up to hospitalization.
Balle v. Kennedy, 73 F.4th 545 (7th Cir. 2023):
Allegations in pleadings do not count as evidence at summary judgment. The court relied on Balle to discount McMillen’s assertion that an outside ophthalmologist told him delays caused vision loss, where he did not support the assertion with admissible evidence.

Legal Reasoning

The court applied well-settled Eighth Amendment doctrine to two sets of medical claims—ophthalmologic care and cardiopulmonary management—under the strictures of summary judgment.

1) Ophthalmologic care (retinopathy/macular edema)

Claim: Prison medical staff delayed follow-up intravitreal injections beyond the one-month timeline recommended by an outside specialist (Dr. Lim), culminating in permanent left-eye vision loss.
Deficiency in proof: The defense introduced an expert ophthalmologist (Dr. Walter Jay) who opined that McMillen suffered no significant vision loss during the specific gaps between treatments and that the vision loss was attributable to the underlying diabetic eye disease, not treatment delay. McMillen presented no expert of his own and relied mainly on appointment schedules and treatment notes.
Result: Under Arce and Williams, causation in a medically complex area like ophthalmology cannot be inferred from sparse records and follow-up schedules alone. Without verifying medical evidence—typically expert testimony—tying harm to the alleged delay, a reasonable jury could not find deliberate indifference or causation. The appellant’s unsupported assertion that Dr. Lim linked delay to loss (raised in the complaint) is not evidence at summary judgment (Balle).

2) Cardiac and pulmonary management

Claim: The doctors persisted with nebulizer treatments for asthma despite worsening symptoms, and delayed specialist follow-ups and pulmonology referral, leading to hospitalizations in 2017 and 2018.
Subjective knowledge: The court saw no record evidence that Dr. Obaisi had the requisite subjective awareness that nebulizer treatments were ineffective in the months before the 2017 hospitalization. The plaintiff did not specify how or when he informed Dr. Obaisi of ineffectiveness. The law does not transform a dispute over asthma-management choices into a constitutional tort (Lewis).
Professional judgment: Even under Cesal, the persistence with a treatment must be one the physician knows is ineffective; four months of nebulizer therapy for an asthmatic patient, without more, is not “so far afield” from accepted practice as to be cruel and unusual.
Causation: As with the eye claim, McMillen failed to present verifying medical evidence that any specialist delays worsened his conditions. Notably, when he finally saw pulmonologists in June 2018, they did not change his treatment or issue a new diagnosis—undercutting an inference that earlier referral would have materially altered his care or outcome. Speculation that earlier consultation might have helped is insufficient under Arce.

3) Procedural denouement

Because the record foreclosed any finding of deliberate indifference or causation, the panel denied the renewed motion for recruitment of counsel and affirmed the district court’s judgment for all defendants.

Impact and Significance

Although nonprecedential, this decision reinforces several practical and doctrinal points in prisoner medical-care litigation within the Seventh Circuit:

Verifying medical evidence is essential in delay-of-treatment claims: Plaintiffs must connect the dots between delay and harm with admissible medical proof. In complex areas (ophthalmology, cardiology, pulmonology), expert testimony will often be indispensable.
Medical records alone may not suffice: Appointment logs and bare treatment summaries—without expert interpretation—generally will not establish that a delay caused incremental harm, especially where defendants produce contrary expert opinions.
Subjective awareness remains a high bar: The court looked for evidence that the physician knew a given course (e.g., nebulizers) was ineffective yet persisted. Absent that, a prisoner's disagreement with treatment choices does not establish deliberate indifference.
Specialist recommendations and follow-up intervals are not self-executing constitutional mandates: While ignoring a specialist’s plan can be probative, liability still turns on subjective awareness and proven harm from the deviation. Without verifying evidence of harm, a claim will falter.
Summary judgment practice: Defense experts who attribute harm to underlying disease can be decisive where plaintiffs lack a counter-expert. Plaintiffs should anticipate the need for expert affidavits or declarations even at summary judgment, not just for trial.
Corporate liability implications: Because no underlying constitutional violation was established, claims against the healthcare contractor likewise failed. This tracks the rule that Monell-type liability requires a constitutional deprivation in the first instance.
Counsel recruitment: Where the record forecloses a constitutional claim (e.g., because causation is missing), courts may deny requests for recruited counsel on appeal, signaling that the absence of counsel cannot salvage a claim unsupported by evidence.

Complex Concepts Simplified

Deliberate indifference: Not mere negligence or malpractice. It means a prison official actually knew about a substantial risk to the inmate’s health and deliberately disregarded it. Think “criminal recklessness,” not a mistaken judgment.
Objective vs. subjective components: The condition must be objectively serious, and the official must subjectively know of and disregard the risk. Here, seriousness was conceded; the dispute centered on subjective knowledge and causation.
Verifying medical evidence: Evidence—often expert testimony or detailed medical records—showing that any delay caused harm (worsened condition, increased pain, lost chance of better outcome). It’s not enough to show you were sick and there was a delay; you must show the delay made things worse.
Difference of opinion vs. constitutional violation: If two doctors would reasonably disagree about treatment, that is not deliberate indifference. Liability requires choices so far outside professional norms that they reflect disregard for the patient’s health or knowingly ineffective treatment.
Why expert testimony often matters: In complex conditions (like diabetic retinopathy, COPD, or cardiac issues), lay jurors cannot reliably infer causation from appointment dates or medication lists. An expert clarifies whether a delay likely caused measurable harm.
Summary judgment: A screening device. If a party lacks admissible evidence on an essential element (here, causation or subjective awareness), the court can decide the case without trial. Allegations in a complaint are not evidence.

Practice Pointers

For plaintiffs: Obtain expert support early. If alleging that delay worsened an eye, heart, or lung condition, secure an affidavit tying specific delays to specific harms (e.g., measurable vision loss during a gap, increased cardiac risk indicators, respiratory decline attributable to postponed referral).
For defense: Use experts to attribute outcomes to underlying disease and to show that timing or chosen therapies were within professional norms. Document reasons for scheduling decisions and responses to inmate complaints.
For courts: This case exemplifies the careful application of Farmer, Williams, and Arce to separate cognizable constitutional claims from treatment disagreements lacking evidence of harm-by-delay.

Conclusion

McMillen underscores a consistent Seventh Circuit message: in delay-of-treatment Eighth Amendment claims, plaintiffs must carry the burden of proving that the delay itself caused harm, typically with verifying medical evidence and often through expert testimony—especially where the medical issues are complex. The decision reaffirms that disagreement with medical strategy, standing alone, does not meet the constitutional threshold, and that courts will not infer medically complex causation from appointment calendars or bare treatment records. While nonprecedential, the ruling harmonizes with a line of published authority, providing practical guidance to litigants and lower courts navigating prisoner medical-care claims at summary judgment.