Hinson v. DeKalb County ( 1999 )

Fitzgerald Columbus HINSON, Plaintiff-Appellee,
v.
Roderick E. EDMOND, M.D., Defendant-Appellant.
No. 98-9178.
United States Court of Appeals,
Eleventh Circuit.
Oct. 20, 1999.
Appeal from the United States District Court for the Northern District of Georgia.
Before EDMONDSON and BIRCH, Circuit Judges, and OWENS*, Senior District Judge.
EDMONDSON, Circuit Judge:
In this case, the defendant, a privately employed prison physician, appeals the district court's
determination that he was ineligible for qualified immunity and its denial of his motion for summary
judgment. Because we conclude that the defendant, due to his status as a privately employed prison
physician, is ineligible to advance the defense of qualified immunity and that material issues of fact exist on
whether the 8th Amendment was violated at all, we AFFIRM the district court's order and REMAND for
further proceedings.
BACKGROUND
Plaintiff is an inmate in the DeKalb County Jail. Defendant is the Medical Director for the jail.
Defendant is not a government employee; he is employed by Wexford Health Sources, a for-profit company
with which DeKalb County has contracted for medical services for the jail. In June 1995, plaintiff injured
his Achilles tendon playing basketball at the jail. On 11 January 1996, surgery was performed on plaintiff's
Achilles tendon. In late August 1996, John Schmidt, the DeKalb County Jail Health Services Coordinator,
noticed that plaintiff was still in a wheelchair and wearing a hospital gown seven months after surgery and
*
Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge for the Middle District of Georgia, sitting
by designation.
asked defendant to investigate. Defendant saw plaintiff on 26 August, noticed atrophy in his leg, and asked
the nurse to check on plaintiff's appointment at Grady Hospital ("Grady").
On 18 September 1996, plaintiff was examined by a physician's assistant who defendant says
arranged for a follow-up appointment to be scheduled for plaintiff at Grady. On 7 October 1996, Defendant
says he wrote a consult request form to Grady because plaintiff had yet to be scheduled for an appointment.
But, the first written record of a consult request is dated 7 November. Grady set an appointment for 8
November. Plaintiff did go to Grady that day and began a program of rehabilitation.
Later, plaintiff filed a complaint against DeKalb County, Sheriffs Morris and Dorsey,1 and John Does
1-10 asserting claims under 42 U.S.C. § 1983. The complaint was then amended to include Dr. Edmond.
The district court granted summary judgment for all defendants except Dr. Edmond. About Edmond, the
court determined that (1) Edmond was not entitled to qualified immunity because the preexisting law was
clear that an unreasonable delay in medical treatment was an 8th Amendment violation, and (2) a material
issue of fact existed on whether Edmond violated plaintiff's 8th Amendment rights. Edmond appealed.
While this appeal was pending, the parties were directed to file supplemental briefs on the
applicability of Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997), to the issue
of whether Dr. Edmond was entitled to raise a qualified immunity defense at all.2
1
Morris was Sheriff of DeKalb County from the end of March 1996 until 31 December 1996. On 01
January 1997, Dorsey became Sheriff of DeKalb County.
2
Although Richardson 's application was not argued in the district court, we are confident that we have
before us a record that will allow us to decide the immunity question fairly. In his supplemental brief,
Edmond requested that the case be remanded so that the contract between DeKalb County and Wexford
Health Sources could be added to the record. We treated this request as a motion to supplement the record
and directed that the parties submit an agreed to copy of the contract that was in force between DeKalb
County and Wexford Health Sources during the relevant time. The parties were also permitted to submit
additional briefs pointing us to portions of the contract that the parties deemed pertinent to the Richardson
issue.
Although the contract was not reviewed by the district court below, we have the inherent
power to supplement the record with materials not submitted to the district court. See Young v. City
of Augusta, Ga. Through DeVaney, 59 F.3d 1160, 1168 (11th Cir.1995); Jones v. White, 992 F.2d
1548, 1566-68 (11th Cir.1993); Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1555 (11th
2
DISCUSSION
In Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997), the Supreme
Court looked at the history and purposes of qualified immunity and determined that they did not support the
extension of qualified immunity to prison guards who were employed by a private, for-profit corporation that
had contracted with the state to manage the prison.
First, the Court determined that, although historically prisons had been run by both private and state
actors, no "firmly rooted" tradition of immunity for privately employed prison guards had developed. See
id. at 404-06, 117 S.Ct. at 2104. Second, the Court discussed three purposes of qualified immunity: (1)
protecting against unwarranted timidity on the part of government officials, (2) ensuring that talented
candidates are not deterred from entering public service, and (3) preventing the distraction of governmental
officials by lawsuits. The Court then concluded that, because of the influence of market forces on private
employers, these same considerations did not support the extension of qualified immunity to the privately
employed prison guards. See id. at 408-12, 117 S.Ct. at 2106-07.
For the same reasons that the Richardson Court declined to extend the doctrine of qualified immunity
to privately employed prison guards, we decline to extend qualified immunity to this privately employed
prison physician.
Under common law, no "firmly rooted" tradition of immunity applicable to privately employed prison
physicians exists under circumstances such as these. That medical malpractice—negligence by a
physician—is insufficient to form the basis of a claim for deliberate indifference is well settled. See Estelle
v. Gamble, 429 U.S. 97, 105-07, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Adams v. Poag, 61 F.3d 1537,
1543 (11th Cir.1995). Instead, something more must be shown. Evidence must support a conclusion that a
prison physician's harmful acts were intentional or reckless. See Farmer v. Brennan, 511 U.S. 825, 833-38,
114 S.Ct. 1970, 1977-79, 128 L.Ed.2d 811 (1994); Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir.1996)
Cir.1989); Ross v. Kemp, 785 F.2d 1467, 1474-76 (11th Cir.1986); Dickerson v. Alabama, 667 F.2d
1364, 1367 (11th Cir.1982).
3
(stating that deliberate indifference is equivalent of recklessly disregarding substantial risk of serious harm
to inmate); Adams, 61 F.3d at 1543 (stating that plaintiff must show more than mere negligence to assert an
Eighth Amendment violation); Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d 1176, 1191 n. 28 (11th
Cir.1994) (recognizing that Supreme Court has defined "deliberate indifference" as requiring more than mere
negligence and has adopted a "subjective recklessness" standard from criminal law); Qian v. Kautz, 168 F.3d
949, 955 (7th Cir.1999) (stating "deliberate indifference" is synonym for intentional or reckless conduct, and
that "reckless" conduct describes conduct so dangerous that deliberate nature can be inferred).
The parties have not been able to point to, and independent research—including a look at the sources
cited by the Supreme Court in Richardson—does not reveal, cases which show a common law tradition of
immunity from liability for privately employed prison physicians for acts amounting to recklessness or
intentional wrongdoing. Instead, case law shows that even state physicians may be subject to liability for
intentional torts. See Irwin v. Arrendale, 117 Ga.App. 1, 159 S.E.2d 719, 725 (Ga.Ct.App.1967) (stating that
prison medical director could be sued for intentional tort of battery if prisoner was x-rayed without consent
or proper medical justification); see also Jackson v. Miller, 176 Ga.App. 220, 335 S.E.2d 438, 439
(Ga.Ct.App.1985) (stating that doctor employed by public clinic was not allowed to advance defense of
immunity in a malpractice action because doctor was not acting as government agent when treating patient
but was only acting as physician).
And, although the Supreme Court, in passing, mentioned that "apparently, [in England], the law did
provide a kind of immunity for certain private defendants, such as doctors or lawyers who performed services
at the behest of the sovereign," see Richardson, 521 U.S. at 407, 117 S.Ct. at 2105, the circumstances here
do not seem to be the kind of situation encompassed by that statement. The sources cited by the Court
suggest that, under certain circumstances, English doctors and lawyers were immune from liability for acts
amounting to negligence. For acts amounting to recklessness or intentional wrongdoing, as are alleged here,
immunity did not exist, however. See Tower v. Glover, 467 U.S. 914, 920-22, 104 S.Ct. 2820, 2825, 81
4
L.Ed.2d 758 (1984) (stating that "English barristers enjoyed in the 19th Century ... a broad immunity from
liability for negligent misconduct....Nevertheless, it appears that even barristers have never enjoyed immunity
from liability for intentional misconduct"); Joel P. Bishop, Commentaries on Non-Contract Law § 704
(Chicago, T.H. Flood & Co. 1889) (same); Bishop, supra, § 708 (1889) (stating that physicians could be
liable for criminal malpractice but were likely immune from liability for civil negligence).
In addition to the lack of historical support for immunity, the public policy reasons for qualified
immunity do not justify the extension of qualified immunity in this case. The Richardson Court suggested
that the market forces to which a private company is subjected negate the fears of "unwarranted timidity" in
the performance of duties. The record in this case reflects just that.
Before December 1995, the medical contractor for the DeKalb County Jail was a different entity,
Correctional Medical Services ("CMS"). The record reflects that, before the change from CMS to Wexford,
county prison personnel complained about CMS's medical records systems and medical staffing levels. In
December 1995, Wexford Health Sources replaced CMS. Furthermore, the record reflects that, after Wexford
took over, DeKalb County officials had many meetings with Wexford officials and noted the county's concern
that, due to the increased inmate population, the staffing level of the medical clinic might be inadequate.
Wexford hired additional medical personnel.
Also, as was the case in Richardson, Wexford Health Sources was systematically organized to
perform a major administrative task for profit. Wexford was contractually obligated to provide for the
delivery of all inmate health care services.3 With the exception of the county-employed medical personnel
who handle the tuberculosis program and some other privately employed mental health personnel, Wexford
3
"Inmate health care" is defined, in the pertinent contract, as "all professional medical, dental, and related
health care (excluding in-patient psychiatric hospitalization) and administrative services for the inmates, a
comprehensive health evaluation of each inmate following booking into the Jail ...,regularly scheduled sick
call, nursing care, regular physician and dentist visits to the Jail, medical specialty services, emergency
medical care, medical records management, pharmacy system including pharmaceuticals, over the counter
medications, pharmacist services and system management, special medical services including, but not limited
to, radiology, diagnostic, and laboratory services, to the extent reasonably necessary in the opinion of a
medical professional, and other services all as more specifically described herein."
5
was responsible for recruiting, interviewing, hiring, training and supervising the health care staff that handles
the general medical needs of an inmate population of approximately 3000. Dr. Edmond was the medical
director of the jail and was in charge of overseeing the general policies for medical care and of implementing
systems to provide greater quality of care at the jail. Wexford also maintained the medical records department
for the jail and designed and implemented policies for inmate health care.
Moreover, as was the case in Richardson, Wexford performed its task with limited direct supervision
and control by the government. Wexford had sole responsibility in all matters of medical judgment.
Although Wexford was required to assist, support, and cooperate with the Sheriff when treating an inmate
who posed a security risk or was dangerous to himself or others, Wexford was chiefly responsible for
identifying and treating such patients.
DeKalb County employed a Physician's Assistant, John Schmidt, to act as a liaison between Wexford
and the Sheriff. Schmidt's job was to help ensure that Wexford was complying with its contract: Schmidt
did not supervise Dr. Edmond's medical performance, hire or fire Wexford employees, or have the authority
to change policies on medical treatment for prisoners. Both Sheriffs Morris and Dorsey said (without
contradiction) that Wexford was responsible for the delivery of medical services to prisoners at the jail and
that the Sheriff did not undertake to supervise or to train anyone working for Wexford on the provision of
medical care at the jail.
Policies and procedures for medical care were established and implemented solely by Wexford and
Dr. Edmond. But, in areas which impacted on the security and administration of the jail, the policies were
subject to approval by the Sheriff. And, although the Sheriff's Department and jail officials investigated
complaints about medical treatment and discussed with Schmidt the status of the jail's medical operations,
Sheriff Dorsey did not think that he had the authority to discipline Dr. Edmond. And, Sheriff Dorsey believed
that he would have to address problems by contacting Wexford executives or having Wexford replaced. In
6
addition, although monthly Medical Auditing Committee meetings and weekly Senior Staff meetings were
held—both of which were attended by Wexford and DeKalb officials, Wexford officials chaired the meetings.
The second policy reason for qualified immunity—ensuring that qualified candidates are not deterred
from governmental service by the threat of damages suit—does not change the conclusion suggested by the
above analysis. Despite arguments raised by defendant in this case, that the inability of a privately employed
prison physician to raise the defense of qualified immunity will deter qualified candidates is doubtful.
Employee indemnification, increased benefits and higher pay are all tools at the disposal of a private company
like Wexford; and they can be used to attract suitable employees.
The third reason for qualified immunity—that lawsuits may distract employees from their
duties—was found insufficient, without more, to cause the Richardson court to extend qualified immunity
to privately employed prison guards. In addition, the Richardson Court observed that, under Tennessee law,
privately employed prison guards were not immune from state law claims. Because of this state law, the
Supreme Court said that Tennessee "can be understood to have anticipated a certain amount of distraction."
Richardson, 521 U.S. at 412, 117 S.Ct. at 2107. In a similar way, not only has there been no tradition of
immunity for privately employed prison physicians under Georgia common law, it appears that Georgia still
provides no official immunity for privately employed prison physicians. See Cantrell v. Thurman, 231
Ga.App. 510, 499 S.E.2d 416, 421 (Ga.Ct.App.1998). Thus, Georgia can also be understood to have
anticipated a certain amount of distraction due to lawsuits.
We conclude that this case is similar enough to Richardson for Richardson to guide us, and no strong
reason appears in this case to distinguish between privately employed prison guards and privately employed
prison physicians.4 Therefore, Edmond is not entitled to advance the defense of qualified immunity.5
4
This determination is consistent not only with the conclusion reached by two district courts in this circuit,
see Nelson v. Prison Health Servs., Inc., 991 F.Supp. 1452, 1462-63 (M.D.Fla.1997); McDuffie v. Hopper,
982 F.Supp. 817, 825 (M.D.Ala.1997), but is also consistent with Halvorsen v. Baird, 146 F.3d 680, 685-86
(9th Cir.1998), where the Ninth Circuit concluded that neither a privately employed detoxification center nor
its employees were entitled to raise the defense of qualified immunity. See also Bibeau v. Pacific Northwest
Research Found., Inc., 188 F.3d 1105 (9th Cir.1999); but see Camilo-Robles v. Hoyos, 151 F.3d 1 (1st
7
The only issue remaining is whether the district court erred when it denied Dr. Edmond's motion for
summary judgment on the merits. We review a district court's summary judgment order de novo and apply
the same standard as the district court. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir.1993). In
determining whether summary judgment is proper, we review the record in the light most favorable to
plaintiff and grant Edmond's motion only if the record demonstrates that no genuine issues of material fact
are present and that Edmond is entitled to judgment as a matter of law. See Steele v. Shah, 87 F.3d 1266 (11th
Cir.1996).
That a prison official's deliberate indifference to a substantial risk of serious harm to an inmate
violates the 8th Amendment is well settled. See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994); Hale v. Tallapoosa County, 50 F.3d 1579 (11th Cir.1995). To survive defendant's
motion for summary judgment, Hinson is required to produce evidence sufficient to create a genuine issue
of material fact about whether Edmond (1) had subjective knowledge of Hinson's serious medical condition,
and (2) was deliberately indifferent to that condition. See Lancaster v. Monroe County, 116 F.3d 1419, 1425
(11th Cir.1997). A delay in treatment can, depending on the circumstances and the length of the delay,
constitute deliberate indifference. See id.; Harris v. Coweta County, 21 F.3d 388, 394 (11th Cir.1994). So,
Hinson must show sufficient evidence to create a material issue of fact about whether Edmond knew of
Hinson's serious medical condition and, intentionally or with reckless disregard, delayed treatment. See
Cir.1998) (stating, without addressing Richardson issue, that privately employed police psychiatrists are
eligible to raise defense of qualified immunity).
5
We express no view on the availability of a "good faith" defense to a private defendant under these
circumstances. See Richardson, 521 U.S. at 412-14, 117 S.Ct. at 2108.
To the extent that prior precedent may have treated the private employment of a prison health
care provider as immaterial to the defense of qualified immunity, see Adams v. Poag, 61 F.3d 1537(11th Cir.1995); Howell v. Evans, 922 F.2d 712 (11th Cir.1991), those cases are not controlling in
the light of Richardson. That a privately employed prison physician acts under color of state law for
the purposes of liability under 42 U.S.C. § 1983 remains well settled. See West v. Atkins, 487 U.S.
42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Ancata v. Prison Health Servs., Inc., 769 F.2d 700 (11th
Cir.1985).
8
generally Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.1986)(to establish that health care provider's acts
constitute deliberate indifference to serious medical need, treatment must be so grossly incompetent,
inadequate, or excessive as to shock conscience or to be intolerable to fundamental fairness).
Hinson has pointed to enough evidence to avoid a judgment against him at this time. That Dr.
Edmond examined Hinson on 26 August 1999 and noted that there was a serious medical condition—Hinson's
leg was injured and the injury was causing atrophy—is undisputed. That Hinson was not treated at Grady
until 8 November is also undisputed. Defendant says that, in the interim, the following occurred: (1) on 26
August he instructed the nurse to check on the appointment at Grady, (2) in September, a physician's assistant
examined Hinson and wrote a consult request to Grady, and (3) in October, defendant personally wrote a
consult request to Grady. Together, defendant contends that this evidence shows that, upon becoming aware
of Hinson's serious medical condition, he acted reasonably.
Plaintiff disagrees about what the evidence shows altogether and stresses that, by defendant's
admission, a written consult request is required to schedule an appointment at Grady. As the first record of
a consult request is on 7 November, and not in September or October as defendant contends, plaintiff argues
that a jury could find from the circumstances that defendant's response to Hinson's condition was highly
unreasonable and that the seventy-four-day delay in treatment goes beyond negligence to violate the 8th
Amendment. See generally Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742-43 (11th
Cir.1996)(discussing non-movant's circumstantial evidence as basis for issue of fact). Given the dispute
surrounding what happened during this more than ten-week period, material issues of fact remain concerning
what defendant's response, upon learning of plaintiff's serious medical condition, was and whether that
response was highly unreasonable. The denial of summary judgment was no error.
For the reasons discussed in this opinion, we AFFIRM the district court's denial of defendant's motion
for summary judgment and REMAND for proceedings consistent with this opinion.
AFFIRMED and REMANDED.
9
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