dissenting:
I respectfully dissent, because in my view Dr. Foote’s qualified immunity is amply shown on the fullest possible record — the. transcript of a full trial on the merits.
I
In evaluating Dr. Foote’s claim of qualified immunity, the majority frames the critical question as “whether a reasonable jury could conclude that [Dr.] Foote exhibited deliberate indifference to Hathaway’s serious medical needs.” That is not the standard for considering qualified immunity. The applicable standard is the one announced in the last paragraph of the majority opinion: whether it was objectively reasonable for Dr. Foote to believe that his conduct satisfied the constitutional standards of Estelle v. Gamble. See Al-Jundi v. Mancusi, 926 F.2d 235, 239 (2d Cir.1991).
Under Estelle (and its progeny), Hathaway must show that Dr. Foote’s conduct amounted to “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Id. at 106, 97 S.Ct. at 292.
Hathaway has offered no evidence whatever that Dr. Foote was deliberately indifferent to Hathaway’s medical needs. Deliberate indifference is not an inadvertent failure to provide adequate medical care. Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.1986). Hathaway must demonstrate that Dr. Foote “actually wish[ed] him harm, or, at least, [was] totally unconcerned with his welfare.” Duane v. Lane, 959 F.2d 673, 677 (7th Cir.1992). Absent a showing of the “unnecessary and wanton infliction of pain,” Estelle, 429 U.S. at 103, 97 S.Ct. at 290 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)), the “proper forum” for a prisoner’s medical grievance is a state court action for medical malpractice. Estelle, 429 U.S. at 107, 97 S.Ct. at 293.
It is undisputed that Hathaway’s hip re-fusion surgery was elective, and that the need for the operation was a function of the pain that Hathaway was experiencing. It is also undisputed that the surgery was offered on December 2, 1977. Hathaway, who best knew the level of his discomfort and his ability to contend with it, declined that option on February 3, 1978. When he asked Dr. Foote for surgery in 1981, Dr. Foote promptly referred Hathaway to a specialist. Hathaway asked for hip surgery again on August 5, 1983, but he recanted a few hours later and demanded a second opinion. These events refute altogether the idea that Hathaway was begging an indifferent and calloused doctor for a surgical procedure required to alleviate his agony.. Pain is subjective. Given the level of pain that the patient is suffering, the patient’s own pain threshold, the risks and possible benefits of an operation, and the pain of surgery, there is nothing odd about someone waiting years before undergoing elective orthopedic surgery.
*70II
The majority faults Dr. Foote in a number of 'respects, none of which remotely evinces deliberate indifference. According to the majority, the most telling circumstance is the one year delay between the time that Dr. Foote learned of the broken pins and the time Hathaway learned of them. This delay, however, is meaningless absent a showing that it was the product of deliberate indifference. See Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991) (prison official must possess sufficiently culpable state of mind); Duane, 959 F.2d at 677 (no cognizable Eighth Amendment claim where prisoner “makes no allegations whatsoever that speak to the [prison officials’] mental states with regard to his medical care”). Hathaway himself admits that Dr. Foote treated him “for his hip pain almost 20 times” during this one year span. See Jackson v. Cain, 864 F.2d 1235, 1244 (5th Cir.1989) (prison doctor granted summary judgment where “[t]here [was] no evidence that [prisoner] was denied medication or access to medical attention”).
A finding of deliberate indifference is absolutely precluded here, because Hathaway always knew all there was to know about- his own pain, and always had the option to undergo surgery to alleviate it. The one-year failure to tell Hathaway about the broken pins at most deprived Hathaway of a fact that might have had bearing on his decision to have elective surgery during that year. On that subject, Dr. Quellman testified that the breaking of the pins was a marginal consideration, while Hathaway testified that the state of the pins was critical to his election of surgery. In any event, such a controversy is not properly or sensibly presented under the Eighth Amendment. “We do not sit as a medical board of review. Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, we will not second guess the doctors.” Sires v. Berman, 834 F.2d 9, 13 (1st Cir.1987).
At trial, the undisputed medical testimony was that Hathaway’s pain — not the presence of the broken pins — was the medical indication justifying surgery. This cannot be disputed because in fact the pins were never removed. Hathaway testified:
Q: Now the exhibit shows an X-ray of your hip and it shows these pins?
A: Yes!
Q: Are any parts of these still in your body?
A: Yes, they’re still there.
Given this admission, the uncontradicted medical testimony at trial, and the fact that Hathaway has not attacked the adequacy of the surgical procedure that left the pins largely intact, Hathaway cannot withstand a dismissal on the ground of qualified immunity by the resolve expressed by, his counsel at oral argument to supplement the plaintiffs case with medical testimony at a future second trial.
The majority also finds evidence of Dr. Foote’s deliberate indifference in the fact that “Hathaway testified that shortly after learning of the broken pins, he told Foote that he would consent to hip surgery.” Hathaway’s testimony about that Jffiy, 1981 consultation also establishes that, as soon as Hathaway mentioned surgery to Dr. Foote, the general practitioner referred Hathaway to Dr. Quellman, an orthopedic specialist. I agree with the majority that we need not adopt a rule exempting “general practitioners from being found deliberately indifferent to a patient’s serious medical needs as long as that general practitioner at some point refers the patient to a specialist, regardless of the extent of contact that general practitioner has with the patient.” (Emphasis added.) Surely it matters, however, in an examination of Dr. Foote’s mental state, that he referred Hathaway to a specialist promptly, and took steps within his own medical expertise to alleviate Hathaway’s pain.
Finally, the majority grounds its finding of deliberate indifference in Dr. Foote’s failure to act on two letters written by “student attorneys” requesting further evaluation and informing the prison superintendent that Hathaway would consent to surgery. Foote, however, could not properly act on a consent to surgery given by someone other than his patient. Moreover, I do not see how see how *71a general practice physician can be found to have acted with deliberate indifferénce in promptly referring a patient to a specialist rather than unilaterally ordering surgery. Dr. Foote, being neither an orthopedist nor a law student, acknowledged his limited expertise in the treatment of this patient.
Ill
The facts in Estelle furnish a template for evaluating medical malfeasance claims under the Eighth Amendment and the invocation of qualified immunity for such claims. The examples of deliberate indifference cited iii Estelle furnish no analog to Dr. Foote’s professional conduct. In Williams v. Vincent, 508 F.2d 541 (2d Cir.1974), the prison surgeon discarded the prisoner’s ear and stitched the stump, explaining to the prisoner that he “did not need his ear” and throwing “the severed portion away in front of him.” 508 F.2d at 544. In Thomas v. Pate, 493 F.2d 151, 158 (7th Cir.1974), the prison doctor injected the prisoner with penicillin, knowing that the prisoner was allergic, and then refused to treat the allergic reaction. In Martinez v. Mancusi, 448 F.2d 921 (2d Cir.1970), the prison doctor refused to administer the prescribed pain killer and frustrated the prisoner’s leg surgery by requiring the prisoner to stand despite contrary instructions of the surgeon.
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 suggested] 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 ease 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.
The cases following Estelle reinforce the view that Dr. Foote’s care of his patient implicates no Eighth Amendment concern. See, e.g., Jones v. Smith, 784 F.2d 149 (2d Cir.1986) (no violation where prisoner, who had refused treatment before being moved to special housing unit, was denied prescribed therapy for a back injury after the move); Sosebee v. Murphy, 797 F.2d 179 (4th Cir.1986) (no violation where doctor prescribed stomach nostrums to an inmate who, having swallowed a steak bone, later died of a punctured esophagus); Lynsky v. City of Boston, 761 F.Supp. 858 (D.Mass.1990) (no violation where doctor failed to order diagnostic tests for obese inmate with a heart condition who died soon after of a heart attack).
I cannot agree that Dr. Foote’s treatment of his patient was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Estelle, 429 U.S. at 105, 97 S.Ct. at 291-92. The record below — undisputed after trial — does more than redeem Dr. Foote from the taint of depravity or sadism that a viable Eighth Amendment claim entails. This record in my view indicates that Dr. Foote and the people of the State of New York can take pride in the solicitous and humane care that Dr. Foote afforded his incarcerated patient.