Andrew Keeper v. Fred King ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2534
___________
Andrew Keeper, *
*
Appellant, * On Appeal from the United
States
* District Court for the
v. * Eastern District of
Missouri.
*
Fred King, Dr.; Anthony Gammon,
*
*
Appellees. *
___________
Submitted: June 9, 1997
Filed: December 11, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, HENLEY,1 Senior
Circuit Judge, and
WOLLMAN, Circuit Judge.
___________
RICHARD S. ARNOLD, Chief Judge.
Andrew Keeper, a Missouri inmate who had been
incarcerated at the Moberly Correction Center (MCC),
appeals from a judgment of the District Court2 entered
1
Judge Henley died on October 18, 1997. This opinion is consistent with his
vote at the panel's conference following oral argument on June 9, 1997.
2
The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
the Eastern District of Missouri.
upon
-2-
a jury verdict in favor of Dr. Fred King, a former MCC
physician, and Anthony Gammon, superintendent of MCC. We
affirm.
I.
On October 24, 1991, Keeper submitted a medical
services request (MSR), complaining of headaches and
blurred vision, but failed to appear for sick call. On
October 28 Keeper complained of dizziness, abdominal pain,
and blurred vision and was examined by a nurse, who
diagnosed a likely muscle strain, prescribed Motrin, and
told Keeper to return the next morning. On October 29
Keeper was examined by Dr. Hampton, who referred him to
an ophthalmologist. On November 11 Keeper submitted an
MSR, complaining of blurred vision and right eye and head
pain, but again failed to appear for sick call. On
November 18 Keeper, complaining of left-sided numbness,
blurred vision, pain in the right eye, weakness, and an
inability to stand at times, was again examined by Dr.
Hampton, who prescribed Elavil for headaches and ordered
a psychological examination, including testing.
On December 30 Keeper submitted two MSRs. At 4:20
p.m. he complained of headaches and blurred vision. A
nurse examined and released him. At 6:00 p.m. he noted
that he had run out of Elavil and that his pain had
returned. He requested a complete physical "before
something seriously does go wrong" and also submitted a
letter detailing his complaints of headaches, blurred
vision, and left-sided weakness and numbness. Later that
day, King reviewed Keeper's medical records and renewed
his prescription for Elavil. On January 1, 1992, Keeper
-3-
submitted another MSR, claiming his condition was worse
and that he had had "mild strokes off and on." On January
2 Keeper was brought to the medical unit on a stretcher,
complaining of difficulty standing, dizziness, headaches,
and numbness. King examined him, but found "no medical
problem" and ordered that Keeper complete psychological
testing. Although Keeper walked out of the unit on his
own, he was brought back by a guard a few minutes later
because he could not stand. King did not reexamine
Keeper. However,
-4-
Keeper was placed in administrative segregation for
medical observation. As a routine matter, a nurse looked
in on Keeper four times a day. He was also seen by a
nurse on at least three other occasions, including January
17, when he was found lying on the floor unable to move.
After returning to his regular cell on January 21, he was
again found lying on the floor and was admitted to the
infirmary for overnight observation. The next morning
Keeper stated he was feeling fine and was discharged.
Keeper did not request or receive medical services
again until Saturday, February 29, when he was brought to
the medical unit after he was found sitting on a toilet
unable to move or speak. A nurse called the MCC health
care supervisor, Debra Williams, who was at home.
Williams instructed the nurse to admit Keeper to the
infirmary, check his vital and neurological signs every
hour, and contact King. Although nurses tried to reach
King by telephone several times on February 29, King, who
did not carry a pager, was finally reached on March 1 at
noon. King did not come to the infirmary, but instructed
the staff to observe Keeper. At 3:00 p.m. that day Keeper
was found lying on the floor wet with urine. His clothes
were changed and his mattress was placed on the floor. He
was found on the mattress wet with urine on Monday, March
2, at 1:30 a.m and 6:30 a.m. At 7:35 a.m. King came to
the infirmary and examined Keeper. Although the doctor
found "no apparent neurological defect" and gave a
provisional diagnosis of conversion hysteria, King
transferred Keeper to a hospital to rule out an
obstruction in the brain. At the hospital a CAT scan
revealed that Keeper had had a large stroke to the right
side of the brain. An examining doctor noted that the
-5-
slow progression of the stroke was "a little unusual."
Keeper filed an action under 42 U.S.C. §1983 against
King and Gammon, alleging that they had been deliberately
indifferent to his serious medical needs, in violation of
the Eighth Amendment. At trial, Keeper, who was then
forty-one years old, testified that he could no longer
use his left arm or leg, had difficulty speaking and
seeing, and that his condition had worsened since the
stroke. In addition to introducing the medical records,
Keeper also presented the testimony of Debra Williams and
Dr. Peter Lewitt, a neurologist.
Williams testified that although King was the full-
time physician and Hampton was the part-time physician on
the medical unit staff, as health care supervisor she had
the over-all responsibility for the medical unit, and, in
the event of an emergency, could order an inmate's
transfer to a hospital. Although Williams was not
involved in the day-to-day treatment of patients, she
stated she was familiar with Keeper's case. In November
1991 she had reviewed his records and discussed his
condition with her staff after Gammon had informed her
that Keeper's mother had contacted him regarding Keeper's
condition. After her review, Williams reported to Gammon
that Keeper was being monitored. She was also aware that
Gammon had informed the unit that Keeper's mother had
again inquired about his condition on December 29.
According to Williams, by mid-January Keeper's symptoms
had become consistent with transient ischemic attacks
(TIA), which are brief neurological attacks that could be
precursors to a stroke.
-6-
As to the events of February 29 to March 2, Williams
testified that she was at home when she received a call
from a nurse informing her that Keeper had been brought to
the unit because he had difficulty moving his left leg and
could not move his left arm. Williams returned to work on
March 2 and examined Keeper. Williams testified that she
was ''shocked" that King had found "no apparent
neurological defect" during his examination, because her
examination revealed that Keeper had facial drooping,
halting and slurred speech, and a limp left arm.
On cross-examination, Williams admitted that on
February 29 she had instructed her staff to call her at
home if they could not reach King or if Keeper's condition
had changed, but that no one called her. Williams also
stated that she was aware that a list of physicians who
were on call was posted on a bulletin board in the medical
unit, but admitted that she had never called a doctor on
the list and did not know how the list was to be used.
Dr. Lewitt, who practices and teaches neurology in
Michigan, testified by video-taped deposition. He stated
that risk factors for a stroke were high blood pressure
and an abnormal heart rhythm and that symptoms of a stroke
included numbness, but generally not a headache. Based on
his review of Keeper's medical records, Dr. Lewitt
believed that as of December 30, 1991, Keeper presented a
medical emergency, and that a brain scan would have been
appropriate. The doctor stated that on February 29 Keeper
had a stroke, and King's order to observe was an
inappropriate response. Lewitt believed that Keeper's
stroke had progressed slowly, and that had it been
diagnosed and treated earlier there was a possibility that
-7-
some of the effects of the stroke could have been
prevented. In sum, the doctor believed that there was "a
major neglect of a treatable neurological condition."
Gammon testified that as superintendent of MCC he was
responsible for the over-all operation of the MCC, but
that he had no medical training or expertise. Gammon
stated that although he knew Keeper's name, he was not
personally familiar with him and had never received a
grievance or letter concerning Keeper's care. Gammon
stated that when he or his office had received telephone
inquiries from Keeper's mother, the inquiries were
referred to Williams because she was responsible for the
operation of the infirmary.
King, who at the time of trial was employed by the
Iowa Department of Corrections, testified that it was a
nurse's responsibility to refer a patient to a physician,
and in an emergency, if a nurse could not reach a doctor,
the nurse or the health care supervisor could order a
transfer of the inmate to a hospital. King admitted he
did not carry a pager, but explained that, although he
volunteered to see patients on nights and weekends, he was
not on call twenty-four hours a day, seven days a week.
Instead, he stated five to six physicians were on call.
King believed that he had treated Keeper's symptoms
appropriately and explained that he had ordered
psychological testing because some of Keeper's symptoms
could have been caused by a conversion hysteria,
-8-
a process whereby a person converts a mental problem into
an actual physical problem, or by malingering, whereby a
person "fakes" symptoms. According to King, malingering
was a common problem in prison. King stated that he
reported that Keeper had "no apparent neurological defect"
on March 2 because physical examination revealed "no
evidence of pathological neurological signs," such as a
positive Babinski response, deep tendon reflex, or ankle
clonus.
King also presented the testimony of Dr. Michael
Hatlelid, a neurologist in private practice in St. Louis,
Missouri, and on the faculty of a local medical school.
The doctor, who in the year before trial had treated three
hundred stroke patients and three to four hundred headache
patients, testified about the differences in symptoms
between a TIA and a migraine headache. According to the
doctor, symptoms of a TIA were numbness on one side of the
body, double vision, blindness, and vertigo, but not as a
general rule dizziness and blurred vision. Symptoms of a
migraine headache were throbbing head pain, nausea,
blurred vision, and numbness. Dr. Hatlelid also noted
that, other than cigarette smoking, Keeper did not present
the major risk factors for stroke, such as high blood
pressure, blood clotting problems, heart disease, or
diabetes.
Although Dr. Hatlelid believed that before February
29 Keeper's symptoms had been consistent with migraine
headaches, nonetheless the doctor testified that around
mid-January he would have ordered an ultrasound
examination to determine whether there was an abnormality
in the carotid artery in Keeper's neck. If the ultrasound
showed a significant abnormality, the doctor would have
-9-
performed an angiogram of the artery to determine whether
there was a surgically correctable condition. However,
Dr. Hatlelid stated that had an ultrasound been performed
in January, it would have been normal, since a March 3
ultrasound examination was essentially normal, showing
only "minimal atherosclerotic disease of the carotid
artery with a 0-19 percent diameter reduction of the
internal artery." The doctor also noted that additional
testing at the hospital failed to reveal the cause of the
stroke. Thus, according to the doctor, "the fact
additional workup was not done in January 1992 ha[d] no
practical significance."
-10-
Based on his review of the medical records, Dr. Hatlelid
expressed the opinion that Keeper did not have a series of
strokes, but had one single catastrophic stroke on
February 29, which was caused by a dissection, or a tear,
of the carotid artery. The doctor explained that
irreversible damage occurs when the artery tears "like
that, quickly," and it "wouldn't have mattered if [Keeper]
had been transported . . . in seconds to any hospital."
The jury returned verdicts in favor of King and
Gammon. Keeper filed a motion for a judgment as a matter
of law, or, in the alternative, for a new trial, which the
district court denied.
II.
On appeal Keeper argues that the District Court erred
in denying his motion for judgment as a matter of law or
for a new trial. "We review de novo the District Court's
denial of [Keeper's] motion for judgment as a matter of
law, applying the same standards as the District Court."
Nicks v. Missouri, 67 F.3d 699, 704 (8th Cir. 1995).
"Judgment as a matter of law is appropriate when the
nonmoving party has not offered sufficient evidence 'to
support a jury verdict in his or her favor.' " Id.
(quoting Abbott v. City of Crocker, 30 F.3d 994, 997 (8th
Cir. 1994)). " 'Our task in reviewing a judgment entered
on a jury verdict is simply to inquire whether, viewed in
the light most favorable to [the nonmoving party], the
evidence at trial supports the verdict.' " Id. (quoting
Rademaker v. Nebraska, 906 F.2d 1309, 1313 (8th Cir.
1990)). In so doing, we give the nonmoving party " 'the
benefit of all reasonable inferences from the evidence,'
-11-
and [we] may not reassess the jury's credibility
decisions." Id. (quoting Abbott, 30 F.3d at 997).
We review the district court's denial of Keeper's
motion for a new trial for an abuse of discretion. Keenan
v. Computer Assoc. Int'l, Inc., 13 F.3d 1266, 1269 (8th
Cir. 1994). Where, as here, "the basis of the motion for
a new trial is that the jury's
-12-
verdict is against the weight of the evidence, the
district court's denial of the motion 'is virtually
unassailable on appeal.' " Id. (quoting Peterson v.
General Motors Corp.,904 F.2d 436, 439-40 (8th Cir.
1990)). "The key question is whether a new trial should
have been granted to avoid a miscarriage of justice.''
Id.
We now turn to Keeper's section 1983 claim. In this
deprivation-of-medical-care case, Keeper had to "show that
the prison official[s] w[ere] deliberately indifferent to
[his] serious medical needs." Coleman v. Rahija, 114 F.3d
778, 784 (8th Cir. 1997). To prove deliberate
indifference, Keeper had to show that King and Gammon
"knew of, yet disregarded, an excessive risk to his
health." Logan v. Clarke, 119 F.3d 647, 649 (8th
Cir.1997) (citing Farmer v. Brennan, 511 U.S. 825, 837
(1994)). In Farmer, the Supreme Court made clear that an
official had to have actual knowledge of a serious risk.
The Court stated that "an official's failure to alleviate
a significant risk that he should have perceived but did
not, while no cause for commendation, cannot . . . be
condemned" under the Eighth Amendment. 511 U.S. at 838.
As to Gammon, the district court did not err in
denying Keeper's motion for judgment or for a new trial.
It is well settled that " '[r]espondeat superior is not
a basis for liability under 42 U.S.C. § 1983.' " Kulow v.
Nix, 28 F.3d 855, 858 (8th Cir. 1994) (quoting Smith v.
Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990)). In
particular, this Court has noted that "a general
responsibility for supervising the operations of a prison
-13-
is insufficient to establish the personal involvement
required to support liability." Camberos v. Branstad, 73
F.3d 174, 176 (8th Cir. 1995). Because Gammon was not
involved in treatment decisions made by the medical unit's
staff and "lacked medical expertise, [he] cannot be
liable for the medical staff's diagnostic decision[s]."
Id. Moreover, Gammon never received a complaint or
grievance from Keeper, and when his mother inquired about
Keeper Gammon referred inquiries to Williams, who assured
Gammon that Keeper's condition was being monitored. "In
these circumstances, 'if any claim of medical
indifference . . . is to succeed, it must be brought
against the individual[s] directly responsible for
[Keeper's] medical care.' " Kulow, 28 F.3d at 859
-14-
(quoting Brown v. Wallace, 957 F.2d 564, 566 (8th Cir.
1992)).
The district court also did not err in denying
Keeper's motion for judgment as to King. Keeper is
correct that "[t]he factual determination that a prison
official had the requisite knowledge of a substantial risk
may be inferred from . . . the very fact that the risk was
obvious." Coleman, 114 F.3d at 786. However, Dr.
Hatlelid's testimony was that the risk of stroke from
Keeper's symptoms before February 29 was not obvious.
Even Dr. Lewitt's testimony shows only a disagreement as
to diagnosis, which is not actionable under the Eighth
Amendment. See Vaughan v. Lacey, 49 F.3d 1344, 1346 (8th
Cir. 1995). Keeper also relies on Dr. Hatlelid's
testimony that he would have ordered an ultrasound
examination in mid-January. Keeper's reliance is
misplaced. " '[W]hen [an] inmate alleges that the delay
in treatment is the constitutional deprivation, the
objective seriousness of the deprivation should also be
measured by reference to the effect of delay in
treatment.' " Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th
Cir. 1997) (quoting Beyerbach v. Sears, 49 F.3d 1324, 1326
(8th Cir. 1995)). In this case, Dr. Hatlelid testified
that although an ultrasound examination would have been
appropriate, the fact that it was not ordered had "no
practical significance." Thus, the doctor's testimony
does not help Keeper's case.
It is undisputed that Keeper had a stroke on February
29, and it is indeed regrettable that he was not
transferred to the hospital immediately, but instead was
allowed to lie on a mattress on the floor, repeatedly
-15-
voiding on himself. However, King cannot be held liable
for the nursing staff's failure to order an immediate
transfer, to contact another doctor, or to inform him
fully of Keeper's condition. See Smith, 910 F.2d at 502
(prison doctor could not be held liable for "claims of
inadequate treatment by other medical personnel"). As
King points out, even Williams testified that although she
had instructed her staff to call her if they could not get
in touch with King or if Keeper's condition had changed,
no one called her. In any event, even if King had had
actual knowledge of Keeper's condition on February 29, Dr.
Hatlelid's testimony that the delay in getting Keeper to
the hospital had no detrimental effect would support the
-16-
verdict. See Coleman, 114 F.3d at 784; Crowley, 109 F.3d
at 502.
Nor did the district court abuse its discretion in
denying Keeper's motion for a new trial as to King.
"[W]here reasonable [persons] can differ in evaluating
credible evidence, a new trial on the ground of weight of
the evidence should not be granted." White v. Pence, 961
F.2d 776, 781 (8th Cir. 1992). In addition, a motion
should not be granted merely " 'because judges feel that
other results are more reasonable.' " Id. at 780 (quoting
Fireman's Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d
179, 186 (8th Cir. 1972), cert. denied, 410 U.S. 930
(1973)). Although the jury could have chosen to believe
Williams's or Dr. Lewitt's testimony, it chose to believe
Dr. Hatlelid's testimony. Thus, the District Court did
not err in denying Keeper's motion for a new trial.
On appeal Keeper also raises evidentiary and
instructional issues. He argues that the District Court
erred in sustaining King's motion in limine to exclude
evidence relating to King's alleged mistreatment of other
inmates and of King's alleged intoxication on two
occasions in 1990 and 1991. However, as King points out,
because Keeper failed to make offers of proof he has
failed to preserve the issues for review. Keeper suggests
that an offer of proof was unnecessary since the District
Court granted the motion in limine. We disagree. This
Court has indicated that, as a general rule, in order to
preserve an evidentiary issue for appeal an offer of proof
is necessary, even if the district court grants a motion
in limine. Dupre v. Fru-Con Eng'g Inc., 112 F.3d 329, 336
(8th Cir. 1997). In this case, there is no reason to
depart from that rule. In particular, we note that in its
-17-
pretrial ruling the Court indicated that it would exclude
evidence of King's alleged mistreatment of other inmates
as to King, but might allow such evidence if relevant to
establish Gammon's knowledge. When Keeper's counsel
attempted to question Gammon about one of the incidents,
the District Court found the incident was not relevant,
but told Keeper's counsel "[t]hat may well be something
you want to get in if Dr. King takes the stand." Despite
this invitation, counsel made no effort to question King
concerning the incident. In any event, had Keeper
preserved the issues for review we would find no abuse of
discretion in excluding evidence
-18-
relating to King's alleged mistreatment of other inmates
or King's alleged intoxication on other occasions.
Keeper also argues that the verdict director
instructions were incorrect statements of the law.
However, he did not raise his objections in the District
Court. "Our law on this subject is crystal clear: to
preserve an argument concerning a jury instruction for
appellate review, a party must state distinctly the matter
objected to and the grounds of the objection on the
record." Id. at 334. Thus, we have reviewed for plain
error only, and find none.
Accordingly, we affirm the judgment.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-19-