dissenting:
Even in cases involving the practice of medicine, qualified immunity does not hinge on legal generalities. Both this court and the Supreme Court have stressed repeatedly that the law defining a constitutional tort must be clearly enough established to make it “apparent” to a potential defendant that “what he is doing” is unconstitutional. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (“[T]he right the official is alleged to have violated must have been ‘clearly established’ in a particularized, and hence more relevant, sense.”); see Malley v. Briggs, 475 U.S. 335, 341-44, 106 S.Ct. 1092, 1096-97, 89 L.Ed.2d 271 (1986); Edwards v. Gilbert, 867 F.2d 1271, 1273 (11th Cir.1989); Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1322-23 (11th Cir. *8411989); Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir.), cert. denied, - U.S. -, 110 S.Ct. 101, 107 L.Ed.2d 65 (1989); Clark v. Evans, 840 F.2d 876, 880, 881 (11th Cir.1988); Muhammad v. Wainwright, 839 F.2d 1422, 1424 (11th Cir.1987). “The line between the lawful and the unlawful is often vague. Harlow’s ‘clearly established’ standard demands that a bright line be crossed. The line is not to be found in abstractions — to act reasonably, to act with probable cause, and so forth — but in studying how these abstractions have been applied in concrete circumstances.” Barts, 865 F.2d at 1194 (footnote omitted).
At the time of Charles Greason’s suicide in 1985, the law was clear that deliberate indifference to an inmate’s serious psychiatric needs could lead to a violation of that inmate’s eighth amendment rights. I disagree, however, that in 1985 it had already been clearly established that to do as defendants did — mainly, diagnose that Grea-son no longer needed psychotropic drugs— would amount to deliberate indifference, violating the Constitution. In 1985, no precedent existed that discontinuing psychotropic drugs under circumstances materially similar to these amounted to deliberate indifference.1 The existence of an inmate’s constitutional right not to be subjected to the cruel and unusual punishment that results from deliberately indifferent psychiatric care is not meaningless just because qualified immunity protects defendants in particular circumstances from the ilunate’S claim for damages. Qualified immunity does not bar all judicial remedies, e.g., injunctive or declaratory relief and damages against defendants other than individuals who violate the Constitution.
Moreover, today’s court denies immunity to the supervisors in this case by using a three-part test never before applied by this or any other court for an eighth amendment violation based on inadequate health care alleged against prison officials who were not directly responsible for a prisoner’s psychiatric care. Although the test seems appropriate, it is a fiction to say that the law applied to the supervisors to deprive them of immunity was clearly established in the eighth amendment healthcare context in 1985. The law on point is being established today.
I also disagree with the court’s suggestion that defendants in this case are unenti-tled to immunity because a jury could find a constitutional violation from the facts presented. Under this analysis, qualified immunity would be available in only those cases in which a jury could not find a constitutional tort. In such cases, however, the Constitution has not been violated and no liability exists. Immunity contemplates exemption from liability that would otherwise exist on the merits; today’s court seems to suggest that immunity is available in only those cases in which the doctrine is superfluous.
The merits of plaintiff’s case and the question of qualified immunity are sepa*842rate questions; we must avoid allowing the ideas to become blurred. On summary judgment, affidavits showing that medical experts disagree about the adequacy of the care provided might create a triable issue on the merits, but do not create a triable issue on qualified immunity. Defendants do not lose their immunity because of conflicting opinion evidence about whether they were deliberately indifferent. To the contrary, qualified immunity is warranted in an eighth amendment case when independent medical experts disagree about whether defendants’ conduct was deliberately indifferent. Cf. Clark, 840 F.2d at 881 (prison guard who shot escapee granted immunity despite conflicting opinion evidence about whether lethal gunfire was justified in the circumstances); Edwards, 867 F.2d at 1275-76 (sheriff and correctional officer granted immunity in juvenile inmate’s suicide where opinion evidence conflicted as to whether officials had properly monitored juvenile).
Nowadays, most section 1983 litigation involves expert testimony stating an opinion about whether the state officer was “reasonable” or used “excessive force” or was “deliberately indifferent.” Qualified immunity is intended to protect public officers not just from adverse judgments, but also from the burden of being entangled in litigation and defending themselves. See Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). To allow qualified immunity to be defeated (so that a trial must be had) by the simple expedient of producing an expert’s affidavit stating an opinion on the ultimate merits adverse to the public officer, is to destroy much of what the doctrine of qualified immunity is intended to do. Even if medical decisions are involved in a case, I think this cannot be the law.
To avoid trivializing the eighth amendment, we must guard against confusing or allowing others to confuse malpractice with a violation of the Constitution. Whether a healthcare worker’s conduct amounts to deliberate indifference so that the eighth amendment is violated is a factually sensitive issue depending on a case-by-case analysis: medicine is a delicate blend of art and science not easily measured by hard and fast rules. Therefore, rarely will a basis exist for an a priori judgment that a healthcare worker was deliberately indifferent and thus violated clearly established rights. Cf. Dartland, 866 F.2d at 1323. Put differently, qualified immunity will likely shield most healthcare workers from damages in their individual capacities even if a jury could find that the level of care given amounted to deliberate indifference.
Where, as here, no case law existed in 1985 which in a particularized way made it apparent that defendants’ acts would amount to deliberate indifference and where competent medical evidence exists that in 1985 defendants’ actions were not deliberately indifferent, defendants are immune from damages. I would reverse the denial of summary judgment.
. The cases cited in today’s court opinion hold only that an inmate is entitled to reasonable access to medical personnel who can provide necessary psychiatric care. See Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir.1977) (court expressly disavowed any attempt to second-guess the adequacy of any particular course of treatment); see also Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.1983); Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.1983); Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir.1980); Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir.1979).
Waldrop v. Evans, 871 F.2d 1030 (11th Cir.1989), held that qualified immunity might be unavailable to physicians who withheld from an inmate psychotropic drugs, including Lithium, which had been used to control successfully the inmate’s mental illness: within three weeks after discontinuance of the drugs, the inmate performed four separate acts of self-mutilation over a period of 40 days and the physicians, with knowledge of these self-destructive acts, never reinstituted use of Lithium in an attempt to stablilize and to control the inmate’s condition. The Waldrop court could hold only that what the defendants did in that case was, at the time, clearly established to violate the Constitution. Because today’s case involves materially different facts — defendants other than the inmate’s attending physician, no series of self-inflicted physical injuries following the decision to stop medication, and no notice to any of the prison doctors that Greason had attempted suicide (if in fact he had done so) since being removed from the drugs — Waldrop cannot control the issue of whether the law was clearly established that what defendants did in this case was at the time unconstitutional.