Jerry W. Bender v. Eugene Regier, M.D. ( 2004 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-3529
    ___________
    Jerry W. Bender,                         *
    *
    Plaintiff - Appellee,              *
    * Appeal from the United States
    v.                                 * District Court for the
    * District of South Dakota.
    Eugene Regier, M.D.,                     *
    *
    Defendant - Appellant,             *
    ___________
    Submitted: May 11, 2004
    Filed: October 1, 2004
    ___________
    Before LOKEN, Chief Judge, BRIGHT and SMITH, Circuit Judges.
    ___________
    LOKEN, Chief Judge.
    In July 1998, while incarcerated in the South Dakota corrections system, Jerry
    Bender tested positive for the Hepatitis C virus (HCV). In this action under 42
    U.S.C. § 1983, Bender alleges that Eugene Regier, a physician employed by the South
    Dakota Department of Health, violated Bender’s Eighth Amendment rights by failing
    to treat his HCV with interferon before Bender’s release from the South Dakota State
    Penitentiary in February 2003. Regier appeals the denial of his motion for summary
    judgment on qualified immunity grounds. Concluding that Bender failed to present
    evidence that Dr. Regier acted with deliberate indifference, the criminal law
    recklessness necessary to prove an Eighth Amendment violation, we reverse.
    I. Background.
    Hepatitis C and Interferon. The virus causing Hepatitis C was identified a
    little more than ten years ago. HCV primarily attacks the liver. More than half of
    those infected develop chronic liver inflammation and after many years of progressive
    deterioration some develop cirrhosis and end-stage liver disease, which can be fatal.
    A well-respected study found that, in the twenty-five years following initial infection,
    twenty percent of those exposed to HCV develop cirrhosis and three to five percent
    develop fatal complications such as liver cancer. See Scott A. Allen et al., Hepatitis
    C Among Offenders, 67 FED. PROBATION 22, 22 (2003). About forty percent of
    Americans infected with HCV reside in correctional institutions. 
    Id. at 24.
    Synthetic interferon was released to the market some ten years ago. Until then,
    no treatment for the Hepatitis C virus existed. By January 2002, a more effective
    interferon treatment was available, involving a combination of pegylated interferon
    (interferon with polyethylene glycol) and ribavarin. Interferon treatment has serious
    potential side-effects, including nausea, anemia, depression, and decomposition of the
    liver. Its success rate is relatively low -- 15-30% for regular interferon and 40-50%
    for pegylated interferon treatment. The selection of patients for interferon treatment
    is highly individualized and depends upon many factors. Treatment is not appropriate
    for patients with advanced liver problems such as cirrhosis. Treatment for patients
    with mild liver problems may be safely deferred. Suitability for treatment is
    determined by measuring the degree of liver inflamation and fibrosis through a liver
    biopsy. However, even if the appropriate threshold levels of inflammation and
    fibrosis are present, treatment may be inappropriate if the patient is too young or too
    old, had a previous organ transplant, or suffers from depression, other mental health
    problems, heart disease, or untreated chemical dependency. Pegylated interferon
    treatment involves a series of injections for six months to a year at a cost of $2,000
    per month.
    -2-
    Dr. Regier’s Treatment of Bender. Dr. Regier practiced family medicine for
    thirty years before beginning to treat South Dakota inmates in 1996. He began
    treating Bender for various medical problems in March 2000. Dr. Regier continued
    to monitor the levels of a liver enzyme known as ALT that indicates liver cell
    damage, as prison physicians had done since discovering Bender’s HCV infection in
    mid-1998. Regier also ordered blood tests to determine Bender’s HCV genotype.
    Bender was released from prison in May 2000. But he was reincarcerated in
    December 2000 after violating his parole by using marijuana and methamphetamine.
    In March 2001, with Bender’s ALT levels continuing to show the presence of HCV,
    Dr. Regier discussed the possibility of interferon treatment with Bender and referred
    him to Dr. Robert D. Meyer, a South Dakota gastroenterologist and noted HCV
    specialist. Dr. Meyer examined Bender in May. Also in May, the prison system
    changed health care providers, choosing a prison managed health care plan under the
    direction of a non-practicing physician, Dr. Michael Rost. In August, Dr. Regier
    requested a “consult with Robert Meyer, MD, in regard to doing liver biopsy.” Dr.
    Meyer met with Bender in September 2001, discussed interferon treatment with him,
    and arranged for a liver biopsy.
    The biopsy was performed in mid-October. Meyer and Regier received copies
    of the liver pathology report, which stated that Bender’s status was “Grade 3"
    inflammation and “Stage 1" fibrosis. Dr. Regier’s November 21, 2001, Progress Note
    states: “Regarding the hepatitis C situation, the patient has had consultation with Dr.
    Robert Meyer and we are awaiting word from Dr. Meyer regarding possibly starting
    this patient on [interferon] treatment.” However, Meyer never prescribed or
    recommended interferon treatment for Bender. Both Meyer and Regier testified that
    they never discussed interferon treatment for Bender (or any other HCV-infected
    inmate). Dr. Meyer testified that his only discussion with Dr. Regier after Bender’s
    liver biopsy concerned “when a decision would be made” about interferon treatment
    for South Dakota inmates generally. He further testified that, in retrospect, Bender
    -3-
    “was somebody I would treat” because of his Grade 3 inflammation and Stage 1
    fibrosis levels. After November 2001, Dr. Regier continued to treat Bender on a
    regular basis but did not prescribe or order interferon treatment.
    Who Was in Charge? Dr. Meyer testified that he did not have the authority
    to schedule an inmate for interferon treatment without approval by “someone at the
    South Dakota State Penitentiary.” But the director of the health care plan, Dr. Rost,
    testified that once an inmate with HCV was referred to a treating specialist, such as
    Dr. Meyer, “[i]f he decided the person needed a liver biopsy, he doesn’t have to call
    me. If he decided the person needed interferon, he doesn’t have to call us. He just
    writes the order for it.” On the other hand, Rost explained, Dr. Regier was a staff
    physician, not a HCV specialist. Therefore, “if Dr. Regier wanted to use interferon,
    he would request that through my office.” In response to a question by Bender’s
    attorney, Rost testified:
    Q. So your understanding is Dr. Meyer would have unfettered
    freedom to order interferon treatment for a prisoner if he was referred by
    you for examining a prisoner for hepatitis C?
    A. I would have no problem. If the doctor had ordered that
    material for someone, we would have filled the prescription.
    At his deposition, Dr. Regier was asked, “Why were you awaiting word from
    Dr. Meyer as to whether or when pegylated interferon would be available to him?”
    Regier responded: “At that time it was not known by me whether or not treating
    patients with interferon was a possibility and who would qualify for it since I did not
    have a protocol in my hands from the South Dakota Department of Health.” The
    subject was again addressed a short time later in the deposition:
    -4-
    Q. Well, is it fair to say you never contacted Dr. Meyer and said,
    “Go ahead and order it and start the [interferon] treatments with Mr.
    Schnetter” [another HCV-infected inmate]?
    A. That would be correct. I never did . . . .
    Q. Why not?
    A. As I stated before, I did not have a protocol in place and it was
    not a medication that I felt I had the privilege of ordering without
    getting approval from the managed care people . . . .
    The Department of Health Develops a Protocol. At a meeting early in 2002,
    representatives of the Department of Corrections and the Department of Health noted
    the increase in HCV-infected inmates and asked Dr. Rost to develop a protocol that
    would determine, in Dr. Rost’s words, “what the criteria should be . . . that would
    render someone eligible for treatment and then what were all the complicating issues
    that might interfere with the success of the treatment and/or the ability of the inmate
    to complete the process.” A committee was formed and contacted several midwestern
    States that had developed HCV treatment protocols. After visiting a Minnesota
    prison, the committee determined that the Minnesota protocol was a suitable model
    and then adapted that model to South Dakota prison procedures.
    The South Dakota Department of Health adopted its Correctional Health Care
    Protocol for the Treatment of Offenders Infected with the Hepatitis C Virus in
    September 2002. Bender was still incarcerated, but he was ineligible for interferon
    treatment under the protocol’s eligibility criteria because his liver biopsy did not
    demonstrate at least Grade 2 and Stage 2 inflammation and fibrosis, and because he
    did not have eighteen months remaining on his sentence to complete the treatment
    process. In addition, the protocol provides that “[t]he offender should be free of
    -5-
    alcohol or non-prescribed drug use.” The summary judgment record establishes that
    Bender is a chronic drug and alcohol abuser.
    The District Court’s Decision. The district court first concluded that Bender
    had a serious medical need for interferon treatment because, at his deposition, “Dr.
    Meyer stated that he would treat Bender with interferon.” The court then concluded
    that the summary judgment record would permit an inference that Dr. Regier acted
    with deliberate indifference because Dr. Regier knew of the seriousness of HCV and
    “has not demonstrated that he made a medical judgment to withhold treatment.”
    II. Analysis.
    Prison doctors and guards violate the Eighth Amendment when they act with
    “deliberate indifference to [an inmate’s] serious medical needs.” Estelle v. Gamble,
    
    429 U.S. 97
    , 104 (1976). “Deliberate indifference” entails a level of culpability equal
    to the criminal law definition of recklessness, that is, a prison official “must both be
    aware of facts from which the inference could be drawn that a substantial risk of
    serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 
    511 U.S. 825
    , 837 (1994). “Thus, a complaint that a physician has been negligent in
    diagnosing or treating a medical condition does not state a valid claim of medical
    mistreatment under the Eighth Amendment.” 
    Estelle, 429 U.S. at 106
    . Likewise, an
    inmate’s “mere disagreement with the course of his medical treatment” fails to state
    a claim of deliberate indifference. Smith v. Marcantonio, 
    910 F.2d 500
    , 502 (8th Cir.
    1990); see Dulany v. Carnahan, 
    132 F.3d 1234
    , 1239-44 (8th Cir. 1997).
    Serious Medical Need. In this case, as the district court recognized, though
    an HCV infection is unquestionably a serious medical problem, the Eighth
    Amendment issue is not whether the infection itself is a “serious medical need,” but
    rather whether Bender had a serious medical need for prompt interferon treatment.
    The district court concluded that Bender satisfied this aspect of the Estelle analysis
    -6-
    because Dr. Meyer opined, as a matter of hindsight, that he would treat someone with
    Grade 3 inflammation and Stage 1 fibrosis. Given the evidence that Bender was an
    unsuitable candidate for interferon treatment for other reasons -- Dr. Meyer agreed
    that interferon patients “should be free of alcohol or chemical dependency” -- we
    doubt whether Meyer’s hypothetical opinion is an adequate basis to defeat the claim
    of qualified immunity on this ground. But we need not decide that issue because
    Bender failed to prove that Dr. Regier acted with deliberate indifference.
    Deliberate Indifference. It is uncontroverted that Dr. Regier treated Bender’s
    medical needs including his HCV condition for many months. Dr. Regier’s progress
    notes reflect that he monitored and charted Bender’s ALT levels, ordered genotype
    testing of his HCV, counseled Bender regarding use of pain medications that can
    adversely affect the liver, and prescribed anti-oxidant vitamins. When tests in early
    2001 confirmed that Bender was not clearing the virus on his own (as many infected
    persons do), Regier referred Bender to an eminent HCV specialist, authorized a liver
    biopsy, discussed interferon treatment with Bender, and then waited for Dr. Meyer’s
    recommendation.
    We disagree with the district court’s conclusion that Dr. Regier offered no
    evidence that he made a medical judgment to withhold interferon treatment. Dr.
    Regier’s background was in family medicine, not gastroenterology. Having referred
    Bender to a specialist, who then became the primary treating physician, Regier was
    justified in leaving the interferon treatment decision to Dr. Meyer, or at least in
    waiting for Dr. Meyer’s recommendation. Moreover, Regier believed that he lacked
    authority to order interferon treatment without a Department of Health protocol
    establishing eligibility criteria. Regier was not responsible for the absence of a
    protocol. Having referred Bender to a specialist, and lacking personal knowledge that
    Bender faced a medical emergency, Regier’s belief that he could not or should not act
    unilaterally without a protocol was not unreasonable.
    -7-
    The summary judgment record does reflect confusion or miscommunication
    among the medical professionals while the Department of Health protocol was being
    developed. Dr. Meyer’s deposition testimony suggests that he believed Bender
    should be treated but waited for word that interferon treatments would be approved.
    Dr. Regier testified, consistent with his progress note, that he was waiting for Dr.
    Meyer to recommend or order interferon treatment for Bender. Dr. Rost testified that
    interferon treatment would have been approved despite the absence of a protocol if
    a treating specialist like Dr. Meyer had ordered it. This confusion does not establish
    an Eighth Amendment violation; “an inadvertent failure to provide adequate medical
    care” is simply not a constitutional violation. 
    Estelle, 429 U.S. at 105
    . Given the
    uncontroverted evidence that Dr. Regier treated Bender’s HCV condition for many
    months and then referred him to an appropriate specialist, any subsequent confusion
    or miscommunication between Meyer and Regier about the ordering of interferon
    treatment is at most evidence of negligence, not deliberate indifference, on the part
    of Dr. Regier.
    Paragraph 3 of the district court’s order dated September 29, 2003, is reversed
    and the case is remanded for further proceedings not inconsistent with this opinion.
    BRIGHT, Circuit Judge, dissenting.
    I dissent. This is a close and difficult case. Whether or not Dr. Regier is
    entitled to be relieved of liability at this summary judgment stage rests in part on
    inferences to be gleaned from the evidence introduced in the case.
    The district court in denying summary judgment to Dr. Regier stated:
    Although Dr. Regier actively consulted with Bender and treated
    his Hepatitis, Dr. Regier has not provided evidence that denying
    Interferon treatment was a reasonable response to Bender's Hepatitis.
    -8-
    Dr. Meyer stated that he would have provided Interferon treatment to
    Bender. (Meyer Depo. at 54-55). Defendants do not present any
    medical evidence that there were reasons to withhold this treatment.[]
    Because Dr. Regier has not identified in the record any reasons why
    Bender is not a candidate for Interferon treatment, Dr. Regier has not
    demonstrated that he made a medical judgment to withhold treatment.
    The Court acknowledges that mere negligence "does not state a valid
    claim of medical mistreatment under the Eighth Amendment." 
    Estelle, 429 U.S. at 106
    . In construing the facts in the light most favorable to
    the Plaintiff, Dr. Regier's conduct demonstrates he knew of the
    seriousness of Hepatitis. Plaintiff is entitled to a jury trial on the issue
    of whether Dr. Regier's failure to treat Bender was a "reckless disregard
    of the known risks." Moore v. 
    Duffy, 255 F.3d at 545
    . Therefore, Dr.
    Regier is not entitled to summary judgment on the merits of this claim.
    Appellant's Add. at 11 (footnote omitted).
    I believe that the district court's ruling denying summary judgment should be
    sustained on this appeal. I do not intimate that liability exists against Dr. Regier, but
    only that Plaintiff Bender can proceed with this litigation.
    ______________________________
    -9-
    

Document Info

Docket Number: 03-3529

Filed Date: 10/1/2004

Precedential Status: Precedential

Modified Date: 10/13/2015