Bryan Croft v. Robert Hampton ( 2008 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-3838
    ___________
    Bryan Croft,                         *
    *
    Appellant,              *
    *
    v.                             * Appeal from the United States
    * District Court for the
    Robert Hampton, Doctor; Pam Tanner; * Eastern District of Missouri.
    Wanda Patton, Correctional Medical   *
    Services, Bowling Green, MO;         * [UNPUBLISHED]
    Correctional Medical Services,       *
    *
    Appellees.              *
    ___________
    Submitted: December 7, 2007
    Filed: July 15, 2008
    ___________
    Before BYE, RILEY, and MELLOY, Circuit Judges.
    ___________
    PER CURIAM.
    Missouri inmate Bryan Croft appeals the district court’s adverse grant of
    summary judgment in his 42 U.S.C. § 1983 action against Correctional Medical
    Services (CMS), CMS physician Robert Hampton, and CMS Nurses Wanda Patton
    and Pam Tanner. We affirm in part and reverse in part.
    Croft’s claims arose from an August 9, 2002, incident when he fractured his leg
    just above the ankle during a prison softball game. He alleged that the nurse
    defendants, Patton and Tanner, were deliberately indifferent in their treatment of his
    obvious fracture at the accident scene and in the prison infirmary, and that defendant
    Dr. Hampton was deliberately indifferent in the care he ordered after the accident.
    We conclude that the district court erred by granting summary judgment to the
    nurse defendants, Patton and Tanner. See Larson v. Kempker, 
    414 F.3d 936
    , 939 (8th
    Cir. 2005) (reviewing de novo grant of summary judgment, viewing record in light
    most favorable to nonmovant). The nurses acknowledged, when they arrived at the
    accident scene, Croft had an obvious fracture, as his foot was “not at the right angle,”
    and he was in obvious pain. Croft offered evidence that (1) the nurses then tried to
    move him by jerking him from the ground while holding him by his shoulders and
    under the knees, causing his foot to hit the ground, (2) the nurses did not stabilize his
    leg while transporting him in a golf cart to the prison infirmary, and (3) he suffered
    additional pain when the nurses ignored Dr. Hampton’s directions to splint the
    fracture site after Croft arrived in the infirmary. We find this evidence sufficient to
    create a jury question as to whether the nurses were deliberately indifferent to Croft’s
    known serious medical need. See Estelle v. Gamble, 
    429 U.S. 97
    , 104-05 (1976)
    (interference with prescribed treatment can rise to level of deliberate indifference);
    Alberson v. Norris, 
    458 F.3d 762
    , 765 (8th Cir. 2006) (to prevail on Eighth
    Amendment claim, claimant must show that prison officials deliberately disregarded
    known serious medical need). We disagree with the district court’s characterization
    of the nurses’ failures as negligence. The record showed the nurses’ acts conflicted
    with the emergency nursing protocol for fractures, and it is commonly known that an
    obviously fractured limb requires immobilization and stabilization, particularly before
    a person is moved, and that failure to splint or otherwise immobilize a fractured limb
    puts the injured person at risk for further injury and increased pain. See Burke v. N.D.
    Dep’t of Corr. & Rehab., 
    294 F.3d 1043
    , 1044 (8th Cir. 2002) (per curiam) (noting
    that medical care so inappropriate as to show refusal to provide essential care violates
    Eighth Amendment).
    -2-
    We also reverse the grant of summary judgment to Dr. Hampton. The record
    showed, after Croft was transferred to a hospital emergency room for evaluation,
    emergency room physician Paul Weiland telephoned Dr. Hampton, described his
    assessment of Croft’s injuries and x-ray findings, and recommended an immediate
    transfer to another hospital with orthopedic services based on his determination that
    the fracture needed to be addressed within twenty-four hours due to the potential for
    loss of nerve or vascular function to the foot. Dr. Hampton, who had not evaluated
    Croft or viewed the x-rays, refused to approve the transfer, and directed that Croft be
    splinted and returned to the prison’s transitional care unit (TCU). Croft was not taken
    to an orthopedist until the next Monday, and surgery was performed that evening
    (close to seventy-two hours after Croft was injured) for what was diagnosed as “an
    unstable comminuted fracture.” In the meantime, Dr. Hampton telephoned orders to
    the TCU but he did not evaluate Croft.
    A disagreement between physicians over the proper course of treatment is not
    actionable under section 1983, see Vaughan v. Lacey, 
    49 F.3d 1344
    , 1346 (8th Cir.
    1995), and prison physicians are free to exercise their independent medical judgment,
    see Meuir v. Greene County Jail Employees, 
    487 F.3d 1115
    , 1118-19 (8th Cir. 2007).
    Nonetheless, we find the record sufficient to raise trialworthy issues as to whether Dr.
    Hampton did, indeed, exercise independent medical judgment, or whether his decision
    fell so far below the reasonable standard of care as to amount to deliberate
    indifference. See 
    Burke, 294 F.3d at 1044
    ; Smith v. Jenkins, 
    919 F.2d 90
    , 93 (8th Cir.
    1990) (grossly inadequate or incompetent care or doctor’s choice of easier and less
    effective course of treatment can constitute deliberate indifference); cf. Moore v.
    Duffy, 
    255 F.3d 543
    , 545 (8th Cir. 2001) (medical treatment may so deviate from
    applicable standard of care as to evidence physician’s deliberate indifference; finding
    no jurisdiction to consider district court’s denial of qualified immunity based on its
    conclusion that parties’ conflicting expert opinions regarding treatment afforded
    plaintiff created material question of fact concerning whether defendant doctor acted
    with deliberate indifference). We also find, given Dr. Weiland’s testimony as to the
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    need for care within twenty-four hours to avoid neurovascular compromise, there were
    genuine issues of material fact as to whether Croft was placed at substantial risk by
    the delay. See Laughlin v. Schriro, 
    430 F.3d 927
    , 929 (8th Cir. 2005) (when inmate
    alleges that delay in treatment rises to level of Eighth Amendment violation, objective
    seriousness of deprivation should be measured by reference to effect of delay, and to
    establish this effect inmate must place verifying medical evidence in record); Coleman
    v. Rahija, 
    114 F.3d 778
    , 785 (8th Cir. 1997) (inmate offered “sufficient ‘verifying
    medical evidence’”--in form of expert testimony--that defendant ignored critical or
    escalating situation or that delay posed substantial risk of serious harm); Sherrer v.
    Stephens, 
    50 F.3d 496
    , 497 (8th Cir. 1994) (per curiam) (defendant may be liable for
    delay in treatment if he ignored acute or escalating situation, given type of injury in
    case).
    As to CMS, however, we affirm the grant of summary judgment. A corporation
    acting under color of state law will be held liable only for its own unconstitutional
    policies, see Sanders v. Sears, Roebuck & Co., 
    984 F.2d 972
    , 975-76 (8th Cir. 1993),
    and there was insufficient evidence offered here to create a jury question on CMS’s
    section 1983 liability, see 
    id. (proper test
    is whether policy, custom, or action by those
    representing official policy, causes actionable injury).
    Accordingly, we affirm the grant of summary judgment to CMS, and we reverse
    and remand for further proceedings consistent with this opinion on the claims against
    Dr. Hampton and Nurses Patton and Tanner.
    RILEY, Circuit Judge, dissenting.
    I respectfully dissent. The majority’s decision to reverse the district court’s
    summary judgment because jury questions remain regarding (1) “whether the nurses
    were deliberately indifferent to Croft’s known serious medical need,” supra at 2; and
    (2) “whether [Dr. Hampton placed] Croft . . . at substantial risk by the 
    delay,” supra
    -4-
    at 4, misses the mark. The decision is contrary to the facts and is an incomplete
    analysis of the applicable law.
    Croft’s section 1983 claims against the nurses and Dr. Hampton are all properly
    evaluated as delays in treatment. In each instance the basis of the complaint is not that
    care was not rendered, but that care was not rendered in a timely fashion. “When the
    inmate alleges that a delay in medical treatment rises to the level of an Eighth
    Amendment violation, the objective seriousness of the deprivation should also be
    measured by reference to the effect of delay in treatment.” Laughlin v. Schriro, 
    430 F.3d 927
    , 929 (8th Cir. 2005) (citation and internal quotation marks omitted). “To
    establish this effect, the inmate must place verifying medical evidence in the record
    to establish the detrimental effect of delay in medical treatment.” 
    Id. (citation and
    internal quotation marks omitted).1 Croft has not offered any verifying medical
    evidence as to the detrimental effects of the alleged delays in treatment. Croft’s
    claims must fail. See 
    id. Croft broke
    his right leg sliding into second base during a prison softball game
    on August 9, 2002. The infirmary was called immediately at 6:58 p.m. The nurses
    arrived on the scene within minutes. The nurses did not carry a splint with them.
    Croft complains the nurses did not stabilize his leg. When the nurses attempted to
    move Croft onto a yellow backboard, Croft’s “foot completely spun over backwards
    and hit the dirt.” The nurses slid the board under Croft, and then lifted the board and
    Croft onto a golf cart which then transported Croft to the infirmary, a trip that took
    about one and a half minutes. At the infirmary, Croft was transferred from the board
    to a bed.
    1
    The majority correctly cites Laughlin and Coleman v. Rahija, 
    114 F.3d 778
    ,
    785 (8th Cir. 1997), supra at 4, but does not apply their controlling precedent.
    -5-
    Upon arriving at the infirmary, Nurse Pamela S. Tanner immediately called Dr.
    Hampton, the on-call physician, who directed that an ambulance be called and Croft’s
    leg be splinted. The nurses assessed Croft’s vascular and neurological functions
    which were intact. The nurses called for an ambulance at 7:20 p.m. The ambulance
    was dispatched at 7:40 p.m. The ambulance arrived at the infirmary at 8:00 p.m.
    Once at the infirmary, an emergency medical technician (EMT) assessed Croft,
    checking Croft’s vital signs at 8:22 p.m., administering morphine to Croft at 8:27 p.m.
    for pain relief and immobilizing the broken leg with an air cast. The ambulance
    departed the infirmary at 8:35 p.m. and arrived at the Pike County Memorial Hospital
    emergency room (ER) at 8:55 p.m.
    At the ER, Croft was examined by Dr. Paul J. Weiland (Dr. Weiland), who first
    saw Croft at 9:05 p.m. Croft’s leg was x-rayed. The x-ray revealed the bones were
    shattered in multiple places. Croft was diagnosed with a comminuted fracture of the
    right distal tibia and fibula. Croft’s neurologic and vascular functions were intact.
    Because no orthopedic services were available at the hospital, Dr. Weiland did not
    recommend admitting Croft because “[w]e did not have orthopedic services available.
    [It w]ould have been inappropriate for us to take care of him.” Dr. Weiland
    recommended transferring Croft to another facility for an orthopedic evaluation and
    possible surgery, but acknowledged, “It’s not necessarily where they would have to
    operate . . . at two o’clock in the morning after he got there, but where he would
    probably have to say be operated on the next morning.”
    Dr. Hampton considered Dr. Weiland’s recommendation, but determined Croft
    should be returned to the prison and admitted to the transitional care unit (TCU).
    Croft left the ER early Saturday morning and was admitted to the TCU at 2:15 a.m.
    Saturday morning. Croft stayed in the TCU until Monday when he was scheduled for
    an orthopedic consult with Dr. Thomas R. Turnbaugh (Dr. Turnbaugh). While in the
    TCU, Croft was given medication for his pain, and the vascular and neurological
    function in his leg was checked every four hours with directions that a doctor be
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    contacted immediately if Croft “is unable to wiggle toes, or loses pedal pulse.” On
    Monday morning, Croft’s toes were warm with good coloring. Croft was able to
    wiggle his toes, and he had a “good strong pedal p[u]lse.” Croft left the TCU at 12:15
    p.m. on Monday August 12, 2002, en route to his orthopedic evaluation with Dr.
    Turnbaugh. Croft was admitted to Capitol Regional Medical Center in Jefferson City,
    Missouri, where he was first evaluated by Dr. Thomas Kramer (Dr. Kramer) and then
    reevaluated by Dr. Turnbaugh who performed surgery later that day to repair the
    fractures. Two days later, on Wednesday August 14, 2002, Croft was discharged and
    returned to the prison infirmary.
    Croft alleges the nurses violated his Eighth Amendment rights by failing to
    splint his leg in a timely fashion. Viewing the record in the light most favorable to
    Croft, the evidence clearly establishes Croft’s leg was splinted within one and a half
    hours of the injury and within about one hour of when the nurses were directed to
    splint the leg by Dr. Hampton. The leg splint was not denied, but only delayed. As
    such, Croft is required to demonstrate the objective seriousness of the delay in
    splinting his leg by placing medical evidence in the record which verifies the objective
    seriousness of the one and a half hour delay. Croft has not done so. No medical
    evidence exists in the record establishing Croft suffered any vascular or neurological
    damage due to the broken leg, much less any vascular or neurological damage
    attributable to the one and a half hour delay in applying a splint. All of the evidence
    reflects Croft’s vascular and neurological functions always remained intact. With no
    medical evidence demonstrating any medical ill effects from the one and a half hour
    delay in splinting his leg, Croft’s Eighth Amendment claim against the nurses fails.
    Similarly, Croft’s Eighth Amendment claim against Dr. Hampton also fails,
    because there is no medical evidence in the record evidencing either any deliberate
    indifferent and harmful delay or any negative effects to Croft from a maximal delay
    -7-
    of sixty hours2 in having Croft’s injury evaluated by an orthopedic surgeon. This is
    not a case where Croft was denied access to an orthopedic surgeon, or denied
    necessary surgery to his leg. Croft’s claim against Dr. Hampton rests solely on an
    allegation that proper evaluation and treatment was delayed, resulting in a violation
    of Croft’s Eighth Amendment rights. The delay occurred over the weekend to the
    next business day. Dr. Weiland opined that the proper standard of care called for the
    evaluation and treatment of Croft’s injury in “a timely fashion” or “in a reasonable
    period of time.” Dr. Weiland did not specify what timely or reasonable meant.
    Croft submitted no medical evidence showing any negative effect of the delay.
    Dr. Weiland counseled in favor of an immediate transfer from the ER to a facility
    equipped to conduct an orthopedic evaluation. Dr. Weiland’s opinion discusses the
    potential risks of delay. The doctor’s testimony does not establish or even speculate
    on any negative effects of the delay on Croft. Croft completely fails to demonstrate
    his delay of a maximum of two and a half days in having Croft’s injury evaluated by
    an orthopedic surgeon resulted in any ill effects to Croft. The record reflects (1) the
    surgery was conducted on the same day as the orthopedic evaluation, (2) Croft’s
    vascular and neurologic functions were always intact and (3) the surgery was deemed
    a success by the surgeon. Viewed in the light most favorable to Croft, the record lacks
    any medical evidence demonstrating the objective seriousness of any deprivation,
    measured in reference to the effect of the delay.
    This record hardly supports a claim of negligence, does not sustain a claim of
    gross negligence and certainly does not bear the much heavier burden of an Eighth
    Amendment deliberate indifference claim. See Popoalii v. Corr. Med. Servs., 512
    2
    Croft asserts the delay between injury and orthopedic evaluation was five days,
    but the medical records unambiguously contradict Croft’s assertion. At most, the
    delay in obtaining an orthopedic consult was sixty hours (two and a half days),
    measuring from the time Croft left the ER early Saturday morning to the time he was
    evaluated by Dr. Kramer on Monday afternoon.
    -8-
    F.3d 488, 499 (8th Cir. 2008) (noting “[f]or a claim of deliberate indifference, the
    prisoner must show more than negligence, more even then gross negligence [because]
    . . . . [d]eliberate indifference is akin to criminal recklessness, which demands more
    than negligent misconduct.” (citations and internal quotation marks omitted)). Prison
    nurses and physicians should not so readily be forced to run the litigation gauntlet, as
    the majority proposes here, which further increases the difficulty of prisons recruiting
    medical professionals.
    The district court’s grant of summary judgment for the defendants should be
    affirmed in all respects.
    ______________________________
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