PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
10/20/99
No. 98-9178 THOMAS K. KAHN
-------------------------------------------- CLERK
D. C. Docket No. 1:97-CV-431-JEC
FITZGERALD COLUMBUS HINSON,
Plaintiff-Appellee,
versus
RODERICK E. EDMOND, M.D.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 20, 1999)
Before EDMONDSON and BIRCH, Circuit Judges, and OWENS*, Senior District
Judge.
____________
* Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge for the Middle
District of Georgia, sitting by designation.
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 asked
2
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
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.
3
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,
117 S.Ct. 2100 (1997), to
the issue of whether Dr. Edmond was entitled to raise a qualified immunity defense
at all.2
DISCUSSION
In Richardson v. McKnight,
117 S.Ct. 2100 (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
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.
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 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).
4
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 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 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,
5
97 S.Ct. 285, 292 (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,
114 S.Ct. 1970, 1977-79 (1994); Cottrell v. Caldwell,
85 F.3d 1480, 1491
(11th Cir. 1996) (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 Reg’l 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
6
subject to liability for intentional torts. See Irwin v. Arrendale,
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,
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,
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, 104 S.Ct 2820, 2825 (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,
7
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.
8
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 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
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.”
9
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 addition, although
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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,
117
S.Ct. at 2107. In a similar way, not only has there been no tradition of immunity
11
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,
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., (9th Cir. Aug. 19,
1999); but see Camilo-Robles v. Hoyos,
151 F.3d 1 (1st 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,
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,
108
S.Ct. 2250 (1988); Ancata v. Prison Health Servs., Inc.,
769 F.2d 700 (11th Cir. 1985).
12
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,
114 S.Ct. 1970 (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).
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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 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
14
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.
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