dissenting.
Because the majority departs from our en banc opinion in Williams v. Mehra, 186 F.3d 685 (6th Cir.1999) and Supreme Court precedent, I respectfully dissent. In Williams, we spoke definitively to the question of what kind of standard (subjective or objective) we must apply in § 1983 cases brought by a prisoner hoping to allege an Eighth Amendment violation because some prison official allegedly acted with deliberate indifference towards the prisoner’s serious medical needs; That standard is unequivocally a subjective standard. See Williams, 186 F.3d at 692 (“To make this case, Plaintiff would need to show that the doctor[ ] actually knew” about an excessive risk and disregarded that risk.).
More importantly, Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), could not have been more clear that it is a subjective standard federal courts must apply in cases such as this. See Farmer, 511 U.S. at 829, 114 S.Ct. at 1974 (“This case requires us to define the term ‘deliberate indifference,’ as we do by requiring a showing that the official was subjectively aware of the risk.”) (Emphasis added.).1 But as is clear from the majority’s opinion, the majority applies an objective standard to conclude that Dr. Wisneski may have acted with deliberate indifference towards LeMarbe’s serious medical needs.
Nowhere is this more clear than in the majority’s relying upon an affidavit from an expert witness, Dr. Sarnelle. To make out the subjective showing that Farmer requires, Sarnelle’s affidavit would have to say that Sarnelle knows, first, that Dr. Wisneski actually knew facts from which an inference of excessive risk could be drawn, and second, that Dr. Wisneski actually drew that inference. But Sarnelle’s affidavit simply provides Sarnelle’s opinion of what Dr. Wisneski or anyone with a medical education should have known. Sarnelle’s affidavit thus provides an objective standard, not a subjective one, and this is wholly insufficient to show an Eighth Amendment violation. See Farmer, 511 U.S. at 837-38, 114 S.Ct. at 1979 (“[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference ... [A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.”).
To the extent that the majority points to evidence besides Dr. Sarnelle’s affidavit to establish Dr. Wisneski’s alleged deliberate indifference, I respectfully disagree. Again, Williams and Farmer demand that we apply a subjective standard. Here, applying that subjective standard requires LeMarbe to show that Dr. Wisneski actually identified a severed bile duct as the problem and then, despite having identified the problem, Dr. Wisneski sewed up LeMarbe, aware that substantial harm would likely result. But that is simply not *442what the record evidence shows in this case.
What the undisputed record evidence shows is that both Dr. Wisneski and Dr. Eichum looked for a leak in LeMarbe’s bile duct, and when they found no leak, erroneously concluded that there was none and closed LeMarbe’s incision. While Drs. Wisneski and Eichum may have committed medical malpractice when they failed properly to diagnose LeMarbe’s problem, they did not violate LeMarbe’s Eighth Amendment rights. See Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976).2 (Deliberate indifference does not include negligence in diagnosing a medical condition.).
In departing from Williams and Farmer, the majority violates the venerable rule in this circuit that one panel may not overrule the published precedent of another panel, let alone the precedent established by the en banc court. See Meeks v. Illinois Cent. Gulf R.R., 738 F.2d 748, 751 (6th Cir.1984) (“[A] panel of this court may not overrule a previous panel’s decision. Only an en banc court may overrule a circuit precedent, absent an intervening Supreme Court decision.”) (citing Timmreck v. United States, 577 F.2d 372, 376 n. 15 (6th Cir.1978), rev’d on other grounds, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979)).3 For all of these reasons, I dissent.
. See also Farmer, 511 U.S. at 837, 114 S.Ct. at 1979 (“We reject petitioner's invitation to adopt an objective test for deliberate indifference.”).
. See also Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir.1995) ("Deliberate indifference, however, does not include negligence in diagnosing a medical condition.”) (citing Estelle, 429 U.S. at 106, 97 S.Ct. at 292).
. See also Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251, 1267 n. 6 (6th Cir.1981) ("It has been the policy of this circuit that one panel cannot overrule the decision of another panel absent either intervening Supreme Court authority to the contrary or other circumstances which render the precedent clearly wrong, [citation omitted] ... It is my hope that both the majority’s disregard for circuit precedent and its misanalysis of the business necessity issue will be regarded as aberrational.”) (Keith, J., dissenting).