Stewart v. Murphy , 174 F.3d 530 ( 1999 )

Revised May 14, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-60083
____________________
BESSIE STEWART; PEARL STEWART GROSS,
individually and as administratrix of the estate
of Eugene Stewart; EDWARD STEWART; HENRIETTA STEWART
REED; PAUL E. STEWART; KELLY STEWART; EUGENE STEWART, JR.,
Plaintiffs-Appellants,
versus
STEWART MURPHY; ED HARGETT; RICHARD KNUTSON, Dr.;
STANLEY RUSSELL; MYUNG KIM, Dr.; JOHN DIAL, Dr.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________________________________________________
April 27, 1999
Before REYNALDO G. GARZA, POLITZ, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this 42 U.S.C. § 1983 action arising out of the death of
Eugene Stewart, an inmate in the Mississippi Department of
Corrections (MDOC), Appellants challenge an adverse summary
judgment, claiming material fact issues for whether, in violation
of the Eighth Amendment, three of Stewart’s treating physicians and
the medical director at the prison hospital were deliberately
indifferent to his serious medical needs, resulting in his death.
We AFFIRM.
I.
This action centers on the treatment provided Stewart, from
August 1994 until his death four months later, for decubitus ulcers
(commonly known as bedsores), which ultimately caused his death.
Appellants also made claims in district court against MDOC
officials Murphy and Hargett. As indicated in Appellants’ brief,
as well as conceded by their counsel at oral argument, Appellants
have abandoned their claims against these two officials and contest
only the summary judgment awarded Drs. Knutson, Russell, Kim, and
Dial.
Appellants filed this action in November 1996, presenting §
1983 claims against the two MDOC officials and Drs. Knutson and
Russell. The parties consented to the case being referred to a
magistrate judge. After conducting discovery, Appellants added
Drs. Kim and Dial as defendants.
In their answer, Appellees raised immunity defenses, including
sovereign and qualified immunity. Contending that Appellants’
pleading lacked specificity, Appellees moved the district court to
require a more specific response to the immunity defenses.
Appellees based this motion on Schultea v. Wood, 47 F.3d 1427, 1433
(5th Cir. 1995) (en banc), in which this court stated: “When a
public official pleads the affirmative defense of qualified
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immunity in his answer, the district court may, on the official’s
motion or on its own, require the plaintiff to reply to that
defense in detail”. See also Baker v. Putnal, 75 F.3d 190, 195
(5th Cir. 1996).
The district court denied the motion, ruling that the original
and amended complaints were “fact specific”; and that “[a]ny
further clarification can be obtained through discovery”.
Appellees do not challenge this ruling on appeal, although they
continue to assert that Appellants’ complaint failed to plead an
Eighth Amendment claim sufficiently.
In December 1997, Appellees moved, pursuant to FED. R. CIV. P.
12(b)(6), to dismiss the complaint for failure to state a claim.
As a result, although the magistrate judge then questioned the
specificity of the complaint, he noted that, in the year since it
had been filed, the “somewhat inadequate allegations [in the
complaint] have now been considerably fleshed out by discovery”.
Accordingly, in the interest of efficiency, the magistrate judge
considered the evidence developed through discovery and treated the
motion as one for summary judgment, rather than striking the
complaint and requiring Appellants to refile.
The magistrate judge held that Appellants failed to show the
requisite subjective knowledge and deliberate indifference by
Appellees. He noted that, although Appellants may have shown
negligence, “there is no evidence that [Stewart] was deliberately
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ignored or maltreated or that the defendants committed willful
wrongs or malicious acts”. Therefore, this action was dismissed
with prejudice.
II.
A.
The motion to dismiss for failure to state a claim was
properly treated as one for summary judgment. See FED. R. CIV. P.
12(b) (“If, [on a 12(b)(6) motion to dismiss], matters outside the
pleading are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed of as
provided in Rule 56” (emphasis added)); Carter v. Stanton, 405 U.S.
669, 671 (1972); Baker, 75 F.3d at 197 (“... where a district court
grants a motion styled as a motion to dismiss but bases its ruling
on facts developed outside the pleadings, we review the order as an
order granting summary judgment”). Appellees do not claim error in
their Rule 12(b)(6) motion being treated as one for summary
judgment. In fact, they agree that, “considering the posture of
the pleadings and the plethora of discovery and evidence before the
[district court], [their motion to dismiss] was properly considered
by the [district court] under the summary judgment standard”.
B.
We review a summary judgment de novo, applying the same
standard as that used by the district court. E.g., Melton v.
Teachers Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th
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Cir. 1997). Under Rule 56, such judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law”. FED. R. CIV. P.
56(c). We view the pleadings and summary judgment evidence in the
light most favorable to the nonmovant. Melton, 114 F.3d at 559.
The nonmovant must “make a sufficient showing of an essential
element of the case to which [he] has the burden of proof”. Id.
He “must set forth specific facts to establish that there is a
genuine issue for trial, but where the evidential submissions lack
probative value as to a genuine issue, summary judgment is
appropriate”. Id.
In this regard, the substantive law determines what facts are
“material”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A material fact issue exists “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party”.
Id.; see Capital Concepts Properties 85-1 v. Mutual First, Inc., 35
F.3d 170, 174 (5th Cir. 1994). “However, ‘[t]he mere existence of
a scintilla of evidence in support of the plaintiff’s position will
be insufficient [to preclude summary judgment]; there must be
evidence on which the jury could reasonably find for the
plaintiff.’” Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215
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(5th Cir. 1998) (quoting Anderson, 477 U.S. at 252) (alteration in
original).
1.
The § 1983 claim at hand charges violation of Stewart’s rights
under the Eighth Amendment to the United States Constitution:
“Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted”. Of course, the
Amendment does not, by its precise words, mandate a certain level
of medical care for prisoners. On the other hand, the “cruel and
unusual punishments” clause has been interpreted to mandate the
provision of medical care to them. E.g., Farmer v. Brennan, 511
U.S. 825, 832 (1994) (“cruel and unusual punishments” clause
imposes duty on prison officials to “ensure that inmates receive
adequate food, clothing, shelter, and medical care”).
Along this line, inadequate medical care by a prison doctor
can result in a constitutional violation for purposes of a § 1983
claim when that conduct amounts to “deliberate indifference to [the
prisoner’s] serious medical needs”, “constitut[ing] the
‘unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment”. Estelle v. Gamble, 429 U.S. 97, 104 (1976)
(internal citation omitted) (quoting Gregg v. Georgia, 428 U.S.
153, 182-83 (1976)). Farmer, 511 U.S. at 837, defined the
“deliberate indifference” standard, explaining that a prison
official is not liable “unless the official knows of and disregards
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an excessive risk to inmate health or safety”. Id. (emphasis
added); see also Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.
1998).
Therefore, although inadequate medical treatment may, at a
certain point, rise to the level of a constitutional violation,
malpractice or negligent care does not. Mendoza v. Lynaugh, 989
F.2d 191, 193 (5th Cir. 1993) (“It is clear that negligent medical
treatment is not a cognizable basis upon which to predicate a
section 1983 action”); Williams v. Treen, 671 F.2d 892, 901 (5th
Cir. 1982) (“mere negligence in giving or failing to supply medical
treatment would not support an action under Section 1983”(emphasis
added)); see also Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.
1989). “Deliberate indifference encompasses only the unnecessary
and wanton infliction of pain repugnant to the conscience of
mankind.” McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.
1997); see also Bradley, 157 F.3d at 1025.
The heart of Appellants’ claim is that the pattern of neglect
by both the facility and the defendant physicians presents a
material fact issue for whether the physicians’ conduct constitutes
deliberate indifference. Specifically, Appellants assert that the
doctors’ failure to properly treat Stewart’s decubitus ulcers, or
to transfer him to another facility for intensive physical therapy
and other treatment, met this standard. We conclude, however, that
Appellants have failed to present a material fact issue because, in
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the light of the summary judgment evidence, no reasonable juror
could find that the physicians were deliberately indifferent.
The underlying facts concerning the course of Stewart’s
treatment are largely undisputed. When he was first incarcerated
at the prison in May 1993, Stewart was 67 years old and suffered
from numerous ailments, including hypertension, arthritis, gout,
and heart disease. Restated, Stewart was not a healthy man when he
entered prison.
Approximately a year later, Stewart was transferred to the
prison disability unit, at which time he was essentially confined
to a wheelchair. At some point shortly after his transfer to the
disability unit, Stewart became incontinent of bowel and bladder.
a.
Dr. Dial admitted Stewart to the prison hospital on 18 August
1994 to treat grossly swollen legs, which can be indicative of
congestive heart failure. After treating this condition for five
days, Dr. Dial discharged Stewart to a disability unit. The next
day, Dr. Dial was advised that Stewart had a large decubitus ulcer
on his lower back. Dr. Dial ordered treatment of the ulcer by
cleaning the area with Betadine, applying sugardyne dressing, and
placing Stewart on the next sick call.
Although the dissent asserts that Stewart did not receive
“even the most rudimentary medicinal functions”, Dr. Dial ordered
that his wounds be cleansed and treated with antibiotics, and
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provided for a follow-up examination. The dissent may not find
this treatment sufficient; but, at the very least, it was far more
than “rudimentary” medical care.
At worst, any failure by Dr. Dial to discover the ulcer
earlier, to read the nurses’ notes indicating Stewart’s
incontinence or mobility problems, or to follow-up to ensure that
his orders were carried out might constitute negligence, not the
requisite deliberate indifference.
b.
When Stewart’s condition did not improve in the disability
unit, he was readmitted to the prison hospital on 6 September 1994,
under the care of Dr. Kim. While Stewart was under her care, Dr.
Kim took cultures from the decubitus ulcers, debrided the wounds
several times, and administered antibiotics and I.V. fluids. She
ordered that the dressings be changed at least two to three times
daily; and that Stewart be repositioned every three hours. Dr. Kim
acknowledges that, due to staffing problems, the nurses sometimes
had difficulty following all of the orders.
When the ulcers did not significantly improve, Dr. Kim
transferred Stewart to a nearby non-prison hospital for
consultation and treatment by a local surgeon, Dr. Wright. Upon
Stewart’s return to the prison hospital, Dr. Kim did not follow Dr.
Wright’s recommendation that Stewart be transferred to another
facility to receive, among other things, physical therapy.
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Instead, Dr. Kim ordered that Stewart be kept out of bed as much as
possible; and that the nurses move his extremities. Because of the
seriousness of Stewart’s condition, Dr. Kim ultimately transferred
Stewart’s care to Dr. Knutson.
This evidence does not present a material fact issue for
deliberate indifference by Dr. Kim. Even though she did not follow
Dr. Wright’s recommendations, this suggests nothing more than a
difference in opinion as to the appropriate method of treatment
under the circumstances. See Norton v. Dimazana, 122 F.3d 286, 292
(5th Cir. 1997).1
In contrast to the charge by the dissent that Stewart was not
provided with “even the most rudimentary medicinal functions”, Dr.
Kim actively treated Stewart’s condition. The evidence shows that
she personally debrided the ulcers, ordered that the wounds be
medicated and dressed, and monitored Stewart’s nutritional levels.
Further, although the dissent notes that Dr. Kim consulted with Dr.
Wright, it fails to mention that she took the additional step of
transferring Stewart to another hospital to enable Dr. Wright to
examine and treat Stewart and make a recommendation. Again, Dr. Kim
ultimately decided not to follow Dr. Wright’s advice. In any
1
Although the dissent states that Dr. Kim “disregarded” that
advice, Dr. Kim’s deposition reflects that she considered Dr.
Wright’s advice, but chose to take another course of treatment. As
noted, this does not present a material fact issue concerning the
requisite deliberate indifference.
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event, Dr. Kim’s active treatment of Stewart is far more than
“rudimentary”.
Finally, the dissent repeatedly asserts that the doctors are
at fault for failing to transfer Stewart to another facility. Dr.
Kim specifically addressed this in her deposition, and stated that,
in her opinion, Stewart’s condition was not serious enough to
warrant a transfer to an outside hospital.2 As noted, the
plaintiffs must present a material fact issue regarding Dr. Kim’s
deliberate indifference to Stewart’s medical needs; they have not
done so.
c.
When Dr. Knutson took over Stewart’s care from Dr. Kim, in
order to treat the ulcers, he was aware of Dr. Wright’s
recommendations, but gave no consideration to transferring Stewart
to another facility for therapy. Dr. Knutson treated the ulcers
with Dakin solution and sugardyne, ordered that the dressings be
changed twice daily, and directed that Stewart be repositioned
every hour. Additionally, Dr. Knutson periodically checked the
wounds and ordered that Stewart get out of bed for extended periods
of time. Once more, the treatment provided by Dr. Knutson,
2
The dissent states that the affidavit of Dr. Rothschild (an
expert for plaintiffs, but who only reviewed the medical records)
reflects a note by Dr. Kim that the prison hospital was inadequate
to provide the necessary treatment for Stewart. It is unclear how
the dissent came to attribute this statement to Dr. Kim, for in his
affidavit, Dr. Rothschild refers only to “the statement of one
physician”, without further identification.
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including orders to clean and medicate the ulcers and reposition
Stewart, was more than “rudimentary”.
Dr. Knutson testified that he often did not read the nurses’
notes, which indicated that Stewart had an infection from a
catheter, and he did not prescribe antibiotics.3 Knutson did not
see Stewart during the four day Thanksgiving holiday, and the
medical records indicate that Stewart was not seen by a physician
during that time.
Dr. Knutson next saw Stewart on 28 November 1994; to the
doctor, Stewart “appeared like he was going to die”. Dr. Knutson
attempted to treat Stewart at the prison facility, but ultimately
transferred him to the University of Mississippi Medical Center
(UMC) on 30 November 1994.
The attending physician who admitted Stewart to UMC testified
that Stewart had the worst bedsores she had ever seen.4 He died
3
The dissent maintains that Dr. Knutson was deliberately
indifferent to Stewart’s medical needs in failing to prescribe
antibiotics for the catheter infection. However, Dr. Knutson
testified that he did not read the nurses’ notes and that he was
unaware of the possible infection symptoms. Further, Dr. Knutson
testified that the symptoms noted by the nurses (pus and a foul
odor) were not necessarily symptomatic of an infection. Thus,
without evidence that Dr. Knutson knew Stewart had an infection and
deliberately disregarded it, a material fact issue is not
presented.
4
In her deposition, Dr. Schlessinger, the attending physician
at UMC who admitted Stewart, affirmatively answered questions
whether the lack of antibiotics from November 13 until Stewart was
admitted to UMC could have contributed to the spread of the sepsis
and whether physical therapy would have been “helpful and
advisable”. At no time during her deposition does she state that
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there on 7 December 1994 from sepsis, due to the decubitus ulcers.
Dr. Knutson did not transfer Stewart to another facility for
physical therapy, or read the nurses’ notes, or administer
antibiotics. Again, at worst, these actions might constitute
negligence, not the requisite deliberate indifference.
d.
Dr. Russell, the medical director at Parchman, was not one of
Stewart’s treating physicians. His limited contact with Stewart
occurred during grand rounds. Dr. Russell testified that he was
not informed that the nurses were having difficulty following Dr.
Kim’s orders.
There is no material fact issue concerning Dr. Russell’s
understanding that Stewart’s ulcers were being treated
appropriately. Dr. Russell was aware of the consultation with Dr.
Wright, but did not follow up with Dr. Kim concerning Dr. Wright’s
recommendations. Again, there is no material fact issue as to
deliberate indifference.5
2.
At oral argument, Appellants’ counsel repeatedly referred to
evidence that the nurses consistently did not follow doctors’
a combination of antibiotics and physical therapy would have
prevented Stewart’s death.
5
Because it does not contest our holding with regard to Dr.
Russell, we presume the dissent agrees with this portion of the
majority opinion.
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orders regarding Stewart’s treatment; counsel claimed this equated
with deliberate indifference. However, Appellants did not sue the
nurses; and, of course, the doctors may not be held liable for §
1983 violations under a theory of respondent superior or vicarious
liability, based upon claimed omissions by the nurses. E.g.,
Monell v. Dept. of Social Servs., 436 U.S. 658, 692 (1978); Simmons
v. Cook, 154 F.3d 805, 808 (5th Cir. 1998) (no respondent superior
liability under § 1983); Eason v. Thaler, 73 F.3d 1322, 1327 (5th
Cir. 1996); Pierce v. Texas Dept. of Criminal Justice, 37 F.3d
1146, 1150 (5th Cir. 1994) (no vicarious liability under § 1983);
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Certainly
§ 1983 does not give a cause of action based on the conduct of
subordinates”).6
6
The dissent does not assert that the doctors are vicariously
liable for the actions of the nurses, per se. It does assert,
however, that the doctors knew that the nurses would not be able to
carry out the doctors’ orders. However, the record does not
present a material fact issue on this point. Dr. Dial testified in
his deposition that he expected his orders would be carried out.
Although Dr. Kim recognized that the nurses sometimes had
difficulty carrying out all of her orders, her testimony indicates
that she did not perceive the problem to be serious enough as to
impede Stewart’s treatment at the prison. Finally, Dr. Knutson
testified that he expected his orders to be carried out, and that
he was not aware that the nurses were having difficulty in
following his orders.
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3.
Appellants contend that the cumulative claimed acts of
negligence by Appellees is sufficient to raise a material fact
issue for deliberate indifference. To the contrary, each
defendant’s subjective deliberate indifference, vel non, must be
examined separately. See Sellers v. Henman, 41 F.3d 1100, 1102-03
(7th Cir. 1994) (“The only significance of multiple acts of
negligence is that they may be evidence of the magnitude of the
risk created by the defendants’ conduct and the knowledge of the
risk by the defendants”).7
Again, on this record, the claimed independent acts of
negligence by each physician were not sufficient to raise a
material fact issue that each doctor knew that his acts or
omissions subjected Stewart to an excessive risk of harm, yet
responded to the risk with deliberate indifference.8 There is no
7
We do not read the dissent as disagreeing with the
proposition that the actions of the doctors must be viewed
individually, rather than cumulatively. Rather, the dissent
disagrees only with our reasoning regarding the individual acts of
the doctors.
8
The dissent repeatedly asserts that the doctors denied
Stewart care that would have saved his life. The only evidence in
the record on this point is the earlier-referenced affidavit of Dr.
Rothschild, the expert for plaintiffs. After summarizing his
review of Stewart’s medical records, Dr. Rothschild states: “It is
my opinion that the events that ultimately led to Mr. Stewart’s
demise began in August 1994 if not earlier and that the records of
his care at Parchman demonstrate that facility was medically
incapable or unwilling to properly care for his condition. Such
care in my opinion, amounts to an indifference on the part of those
in authority to take the action necessary to prevent his death,
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probative evidence that the doctors denied, substantially delayed,
or intentionally interfered with Stewart’s treatment. Cf. Hudson
v. McHugh, 148 F.3d 859, 863-64 (7th Cir. 1998) (jail officers’ and
nurse’s refusal to do anything about prisoner’s repeated requests
for epilepsy medicine despite knowing he did not have his medicine
constituted deliberate indifference to serious medical need). The
doctors actively treated Stewart’s admittedly serious condition.
i.e., to evaluate him in a timely manner and transfer him to a
facility where he could receive the necessary care.” (Emphasis
added.)
It bears repeating that Dr. Rothschild’s opinion was based
solely on his review of medical records. He did not, for example,
review the depositions of the defendant doctors. Therefore, his
conclusion that the facility was “incapable or unwilling” to
provide proper care is of little, if any, probative value. Along
this line, he was “awaiting additional documentation”, such as
those depositions; and, “[u]pon receipt of that information, [he]
anticipate[d] supplementing this report”. That supplement, if
rendered, is not in the record.
In any event, the relied upon passage reflects only Dr.
Rothschild’s opinion that the cumulative effect of Stewart’s care
may have hastened his death. Dr. Rothschild does not identify any
particular actions by any of the doctors that constituted
deliberate indifference; instead, he speaks of “indifference on the
part of those in authority”. (Emphasis added.) As noted, we do
not hold that there is no evidence of potentially negligent care.
Rather, there is no evidence that creates a material fact issue of
whether the doctors knew of Stewart’s grave condition and were
deliberately indifferent to it.
Furthermore, contrary to the assertion in the dissent that a
transfer to another facility would have saved Stewart’s life, Dr.
Rothschild’s affidavit does not opine that Stewart would have lived
if he had been treated at a different facility (based on the
doctor’s reviewing only the medical records, this is not
suprising); and we have found no other evidence in the record
stating that Stewart would have lived had he received the treatment
the dissent maintains was deliberately denied him.
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“Disagreement with medical treatment does not state a claim for
Eighth Amendment indifference to medical needs.” Norton, 122 F.3d
at 292.
At most the evidence was merely colorable on the critical
issue of whether the doctors’ conduct amounted to deliberate
indifference to the treatment of Stewart’s decubitus ulcers.
Summary judgment for the Appellee physicians was proper, because
“there is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party”. Anderson, 477 U.S. at 249.
C.
As for Appellants’ state law claims, summary judgment was
proper, pursuant to Sparks v. Kim, 701 So. 2d 1113 (Miss. 1997),
which held that prison physicians are protected by qualified
immunity for medical treatment decisions, unless “they commit
willful wrongs or malicious acts”. See id. at 1116-17 (quoting
Hudson v. Rausa, 462 So. 2d 689, 696 (Miss. 1984)). As shown
supra, “[t]he fact that the treatment was inadequate for the
severity of [the] condition does not indicate that the doctors in
question committed ‘willful wrongs or malicious acts’”. Id. at
1117.9
9
The dissent does not address the plaintiff’s state law
claims. Thus, we presume that it joins the majority opinion on
this issue.
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III.
The record simply does not reflect the parade of horrors
trumpeted by the dissent — far from it. But, be that as it may,
there is no material fact issue to support the requisite deliberate
indifference necessary for liability. Accordingly, the judgment
for Appellees is
AFFIRMED.
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POLITZ, Circuit Judge, dissenting:
In the majority’s view, Stewart’s death was, at worst, the
product of mere negligence. If these appellees are guilty of
nothing more than a bit of innocuous medical malpractice, then the
barrier to a deliberate indifference claim has been rendered
virtually impenetrable. I respectfully dissent, as I cannot
subscribe to the majority’s view of the eighth amendment,
effectively rendering its vaunted protections an empty promise.
As an unsanitized and uncontested view of the evidence fully
demonstrates, appellees -- starkly aware of Stewart’s dire
condition -- denied him treatment that could have saved his life.
Without providing even the most rudimentary of medicinal
functions,10 appellees averted their heads as Stewart slowly and
painfully died.
There is no question but that Stewart suffered from ill health
when he was incarcerated in 1993, and that his health worsened
throughout 1994. But it was after a stay in the prison hospital,
where he was neither moved nor bathed during a five-day period,
that his condition drastically deteriorated. Through what one
10
The majority insists that, whatever the level of treatment
Stewart received, it was more than “rudimentary.” Though the
majority understandably dislikes this characterization, the facts
speak for themselves.
physician has called “a total lack of observation,”11 Dr. Dial,
Stewart’s treating physician, overlooked Stewart’s skin wounds.
Though the nurses’ notes clearly stated that Stewart was unable to
move and was incontinent of bowel and bladder, he was nonetheless
released from the hospital. Dr. Dial did not examine Stewart on
the days the nurses made these notations; nor did he review their
notes before discharging Stewart. The day after Stewart left the
hospital, Dr. Dial received notification that Stewart had developed
a twenty-five centimeter stage IV decubitus ulcer -- an advanced-
stage bed sore caused by extended periods of immobility -- with
necrosis over 95% of its area. Dr. Dial prescribed a treatment of
cleansing, dressing, and antibiotics, but he never bothered to
confirm that his orders were followed or to check to see whether
the treatment was effective.
When Stewart was returned to his prison unit, he gave off a
foul body odor and feared taking a bath. Because the wheelchair-
bound Stewart could not bathe himself, he was forced to rely on his
cell-mate who saw that both sides of Stewart’s hips were bloody and
raw and that his clothes stuck to his body. Although Stewart’s
cell-mate attempted to clean the wounds, Stewart’s wounds -- which
emitted a fetid smell and from which there was substantial drainage
-- worsened. Stewart became feverish and delirious, lost the
ability to control both his bladder and his bowel functions, and
11
See infra at 8.
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urinated and defecated on himself. Throughout this period, no
physician saw Stewart. The cell-mate signed Stewart in for sick
call a number of times but he was not then examined by any medical
personnel.
After the passage of two weeks Stewart finally was admitted to
the prison hospital by Dr. Kim. On admission, Dr. Kim noted that
Stewart had developed multiple decubitus ulcers, including a large
ulcer with necrotic tissue on his buttocks and one on his foot.
Examination of the ulcers revealed a “very deep infection” and
cultures from the ulcers indicated contamination by urine or feces.
Dr. Kim ordered that Stewart’s dressings be cleaned and changed
frequently and that he be repositioned every few hours. But, as
Dr. Kim was fully aware, chronic medical understaffing rendered it
extremely improbable that Stewart would receive anything like the
treatment medically deemed necessary.12 The dilemma brought on by
the dearth of staff was exacerbated because the nurses avoided
treating Stewart, whose putrid infections disgusted them. Non-
medical personnel drew the task of cleaning and dressing Stewart’s
wounds to the extent that such occurred.
The necrotic tissue quantity so worsened that Dr. Kim
consulted a local surgeon, Dr. Wright, who stressed the need for
12
See infra at 8. The majority insists that Dr. Kim simply did
not understand the severity of the problem. The record does not
bear out this convenient inability by a physician to grasp the
seriousness of a situation in which her orders cannot be followed.
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intensive and vigorous physical therapy. This advice was
disregarded.13 Fully aware that the prison hospital lacked the
personnel and facilities to implement Dr. Wright’s recommendation,
Dr. Kim made no effort whatsoever to transfer Stewart to a facility
where he could have received this essential care.14
Instead, Dr. Kim referred Stewart to the care of another
prison physician, Dr. Knutson, who continued the same regimen
already proven to be totally inadequate to arrest Stewart’s
deepening infection. At this stage, Dr. Knutson was fully aware
that Stewart was arthritic, incontinent, and bed-ridden; his
longstanding decubitus ulcers had alarmingly worsened; and he could
no longer feed himself. The nurses’ notes charted amber, foul-
smelling urine and yellow, foul-smelling pus that discharged from
Stewart’s penis and gathered around Stewart’s catheter.
Subsequently, the notes alerted, Stewart’s bladder became hard and
turgid, and his urine became thick and cloudy. The notes also
documented repeated complaints by Stewart of a sore throat and
13
Again, the majority quibbles with my terminology. The record
reflects that Dr. Kim received Dr. Wright’s advice -- which she
herself had procured -- but refused to take any steps to implement
his recommendation. She brushed aside his recommendation solely on
the ground that Stewart’s condition was not “serious” enough to
warrant something as basic as physical therapy.
14
The majority faults me for failing to discuss in more detail
the treatment Stewart did receive from Dr. Kim. There is no need
for me mention that care, as the majority already assigns more
weight to that treatment than it can bear -- the few affirmative
steps Dr. Kim took to treat Stewart were woefully deficient.
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widespread pain. According to the notes Stewart, who appeared
confused, was moaning and crying. Like Dr. Dial, Dr. Knutson
failed to review the nurses’ notes.
Dr. Knutson thereafter left on a four-day Thanksgiving
holiday, during which neither he nor any other physician saw
Stewart. When Dr. Knutson returned he observed that Stewart
“appeared like he was going to die.” While conceding that he
believed Stewart had a serious urinary tract infection,15 Dr.
Knutson inexplicably failed to prescribe any antibiotics. Stewart
was dehydrated and was not eating; he had become nonresponsive and
had multiple abnormalities in lab values. Nonetheless, Dr. Knutson
decided against an immediate transfer and delayed two days before
transferring Stewart to a proper, readily-available facility. In
the meantime, Dr. Knutson took no blood samples to determine
Stewart’s nutrition levels and took no cultures to ascertain the
extent of his infection. Stewart was grossly malnourished and the
infection was severe.
The treating physician at the transferee facility, Dr.
Schlessinger, described Stewart’s condition on arrival thusly:
15
The majority suggests that Dr. Knutson did not know that
Stewart was suffering from an infection. His deposition otherwise
informs:
Q [Counsel]: So, you think [Stewart has] got a urinary tract
infection that’s gonna make him die and you don’t give him any
antibiotics; is that correct?
A [Dr. Knutson]: Correct.
R. 362.
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He was very debilitated. He would open his eyes, but he did
not respond to commands. . . He was very dehydrated. . . .
I think . . . the most stunning thing was that he was very dry
and that he had huge decubitus ulcers. . . . I have lots of
patients -- the reason I remember Mr. Stewart so distinctly is
that I would say that he had the sad distinction of probably
having the worse decubitus ulcers that I had ever seen in my
life. He had pressure sores with breakdowns. . . . [O]ne of
the hips . . . was really dramatic. You could see exposed
bone, lots of necrotic tissue. [The sores] were horrendously
foul smelling.
Approximately one week after he was admitted Stewart died from
sepsis, a toxic condition resulting from infection.
The undisputed facts reveal a sad truth. For over three
months Stewart lived in agonizing discomfort and pain, slowly
approaching death. At least three different physicians could have
prevented this painful death by administering a relatively simple
course of treatment -- antibiotics and physical therapy. Instead,
they looked away as Stewart literally rotted away, his flesh
decaying, his body soaked in his own feces, urine, blood, and pus.
Even at the final stage, when Stewart’s death appeared imminent, a
conscious decision was made to postpone his transfer to a hospital
for two possibly crucial days.
Despite all of this, the majority dismisses the claim that
Stewart’s prison physicians were deliberately indifferent to his
serious medical needs based on appellants’ purported failure to
show that “the doctors denied, substantially delayed, or
intentionally interfered with Stewart’s treatment.”16 In my
16
Slip op. at 15-16.
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judgment, this finding ignores reality. Dr. Schlessinger testified
that Stewart’s physicians should have prescribed antibiotics and
that they should have ordered an aggressive regime of physical
therapy. After fully reviewing Stewart’s medical records,
appellants’ medical expert -- Dr. Rothschild, Head of the Genetics
and Geriatrics Department at the Louisiana State University Medical
Center in New Orleans -- agreed with Dr. Schlessinger’s conclusion
that the care Stewart received fell below the acceptable standard
of treatment.17 Dr. Rothschild could find no evidence that Stewart
ever received appropriate treatment “necessary to deal with his
life-threatening condition.”18 According to Dr. Rothschild, Dr.
17
The majority dismisses Dr. Rothschild’s affidavit as lacking
in probative value because he purportedly failed to review the
doctors’ depositions and planned to (but did not) supplement his
affidavit upon review of such additional documentation. Perhaps
Dr. Rothschild reviewed the depositions but declined to modify the
affidavit because his conclusions remained the same. But even if
Dr. Rothschild reviewed nothing other than Stewart’s medical
record, this does not undermine the force of his conclusions for
purposes of summary judgment. As a review of his resume confirms,
Dr. Rothschild is an impressively qualified physician. The
question whether to accept his opinion and the weight to be given
to it should be reserved for the jury.
18
Contrary to the majority’s assertion and as the following
discussion reflects, Dr. Rothschild’s affidavit clearly identifies
acts committed by Stewart’s individual physicians which legally may
be classified as “deliberate indifference” -- for instance, the
affidavit states that “one physician [acknowledged] that Mr.
Stewart [could not] be adequately treated at [the prison]
facility,” but, despite this acknowledgment, did not transfer
Stewart. The fact that Dr. Rothschild does not use the legal term
“deliberate indifference” in cataloguing such acts does not mean
that he has failed to identify factual situations that legally
amount to deliberate indifference.
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Dial overlooked Stewart’s condition and released Stewart -- an
enervated, seriously ailing man -- from the hospital only through
a “total lack of observation.” Further, as Dr. Rothschild
observed, hospital records reflect an acknowledgment by Dr. Kim
“that Mr. Stewart cannot be adequately treated at this facility
because there are simply not enough personnel to provide the
intensive care necessary to treat him.”19 The same records note
that Stewart’s condition was “severe.” A review of Stewart’s
medical files left Dr. Rothschild unable to reconcile “[t]he
urgency of the need for adequate care . . . with the apparent lack
of available . . . staff . . . to carry out the [physician’s]
orders.” Referring to Dr. Knutson’s failure to prescribe
antibiotics -- despite evidence of a urological infection of which
he was aware -- Dr. Rothschild remarked upon the lack of any
“indication of proper . . . management of this condition.” The
19
The majority points out that Dr. Rothschild’s affidavit
referred to an anonymous physician, not Dr. Kim. This is true, but
it is clear that Dr. Rothschild must have been referring to Dr.
Kim, since she is the only physician who treated Stewart’s
decubitus ulcers during the relevant time period and who admitted
to an awareness that the prison hospital was not equipped to care
for Stewart. If, however, a physician other than Dr. Kim made the
statement in the record, that only strengthens my argument -- two
doctors, not one, expressly recognized that Stewart would not
receive the prescribed treatment so long as he was at the prison
facility.
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failure to transfer a dying Stewart out of the prison hospital, Dr.
Rothschild suggested, led to his death.20
In the face of this evidence, I cannot understand the
majority’s conclusion that appellants failed to show knowledge on
the part of each physician “that his [or her] acts or omissions
subjected Stewart to an excessive risk of harm.”21 What the record
abundantly shows is a failure to undertake even the most basic
examination and treatment of a gravely ill patient before releasing
him from the prison hospital; a failure to transfer him with full
awareness that the prison’s facility lacked the means to care for
him; and a failure to prescribe sorely needed antibiotics. To me
it appears painfully apparent: if a physician knows that a patient
will not receive adequate care unless he is transferred, but fails
to transfer him to another facility, that physician knows the
patient will not receive adequate care. Analogous statements can
be made of the physicians’ failure to examine and to prescribe
20
The majority takes issue with this assertion. Dr. Rothschild
stated, however, that the care Stewart received “amounts to an
indifference on the part of those in authority to take the action
necessary to prevent his death, i.e., to evaluate him in a timely
manner and transfer him to a facility where he could receive the
necessary care.”
I read this statement to mean that in order to prevent
Stewart’s death, it was necessary for appellees to transfer Stewart
to a facility where he could receive appropriate care and
treatment.
21
Slip op. at 15.
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antibiotics to a critically ill patient suffering from infection.
The majority brushes aside appellees’ multiple breaches with
the simple observation that doctors cannot be held accountable for
deficiencies in the medical staff. This begs the decisive question
whether doctors who know their prison staff is incapable of
administering the necessary treatment, may, consistent with the
eighth amendment, do nothing while a patient languishes unto death
for want of treatment in the prison hospital. In my judgment, a
doctor who understands that a patient’s only prospect of survival
depends upon a timely transfer, but does not send that patient to
an available hospital, cannot escape liability by pointing to
failings of the nursing staff. Contrary to the majority’s view, I
would not characterize appellees’ refusal to transfer Stewart as a
mere “difference in opinion as to the appropriate method of
treatment under the circumstances.”22 No physician presumed to
suggest that the prison facilities provided a viable alternative
course of treatment for advanced decubitus ulcers from which
Stewart suffered; paper orders that reasonably cannot be
implemented should provide no release from accountability. Nor
should the failure to prescribe antibiotics in the face of a raging
infection reflect a reasonable alternative medical judgment.
22
Slip op. at 10.
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Under Estelle v. Gamble23 and Farmer v. Brennan24 a prisoner
establishes deliberate indifference by showing that a prison
official “kn[e]w[] of and disregard[ed] an excessive risk to inmate
health.”25 If the facts proven by appellants herein do not satisfy
that standard, I am forced to the conclusion that under the
majority’s evaluation no factual scenario ever will.
I therefore must dissent.
23
429 U.S. 97 (1976).
24
511 U.S. 825 (1994).
25
Id. at 837.
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