*1 alone, Louis Sidre at home without consequences leaving young control, adult Scott Harvard’s supervision, protection. parents’ would, view, alleged negligent supervision my of their son another factor for resolution. jury
I am in this Judge Eldridge joins authorized to state that dis- sent. July Decided July 29, 1999
Reconsideration denied Gray, Hedrick, Hedrick & L. Bruce Edenfield, appellants (case A99A0634). no. (case A99A0635). Pollock,
Kenneth C. no. appellant Mills, Kushel, Moraitakis, Moraitakis & Nicholas C. for appel- lees.
A99A0680. HOWARD et al. v. CITY OF COLUMBUS et al.
A99A1258. HOWARD et al. v. CHASE. Judge.
Eldridge, At 1:20 a.m. on May Howard, Jr., James a prisoner of City Columbus, Muscogee County, died of diabetic ketoacidosis at Columbus Medical Center. Howard, Conswella L. his minor daughter, by through her legal guardian, natural and Stephanie Corbin, brought a wrongful action, death Stephanie Corbin, as temporary administratrix Howard, Jr., estate of James brought a personal injury action against City Columbus, Muscogee J. County; E. “Gene” Hodge, individually and his official capacity as Sheriff of Muscogee County; Chase, Dr. Jerry Stephen individually his official capacity director; as jail medical and three jail nurses, licensed practical McLeod, Mildred Ava J. Chapman, Lawrence Thompson, and in individually their official capacities. Plaintiffs contended that Howard received grossly incompetent and inadequate medical care or such refusal to provide essential care so as to evidence an intentional violation of his constitutional rights. The following were the basis for plaintiffs’ 1 through actions: Counts 4 were premised upon violation of the statutory duty provide medical care 42-5-2, under OCGA and the common law duty the state constitutional duty personal injury wrongful death actions; Count 5 was a medical action for malpractice personal injury death; and wrongful and Count 6 was a USCA 1983 and 1988 §§ action for violation of due process Eighth and the Amendment of the United States Constitution cruel and prohibiting punish- unusual ment. summary
After all the defendants moved for discovery, extensive 6, 1998, on all counts. On oral was held. judgment August argument 11, 1998, summary On the trial court August granted judgment 10, 1998, all counts the trial against plaintiffs. On December granted summary judgment court Dr. Chase’s motion for as well. Plaintiffs filed timely appeal. their notice of *2 hypertension.
The record shows that Howard was a diabetic with in By policy, Muscogee County jail per- the intake was screening formed with no medical who did not take a med- deputy training history only ical for diabetes or and looked for hypertension observ- Thus, able conditions or Howard’s records did physical injuries. jail his medical on flag condition. After his incarceration October 1991, lack of diet and medication caused Howard’s diabetic proper condition to over By worsen time. Howard’s diabetic con- April dition had visibly deteriorated extent that he sick appeared laya person. 23, 1992, cellmate, Melson,
On April Howard’s a sick- prepared Howard, call slip because Howard was too weak to do it for him- week, self. Within the Melson two or three more sick-call prepared for Howard. slips By May, the first week in Howard experienced symptoms overheating, water, dizziness, craving constipation, and fainting. After one Howard examined in the fainting spell, was times, cell aby deputy. At other when the told jailors cellmates fainted, that Howard was seriously jailors sick or had did not even look at him or do anything to determine if he was sick. Howard i.e., lost considerable 30 to 40 and had a weight, pounds, shrunken face, to a indicating lay that he was sick and had a person profoundly serious medical need. May 22,1992,
On Officer J. V. learned that Howard Kennedy was sick. Kennedy talked by telephone Chapman LPN Mildred in the clinic at 8:30 a.m. did Chapman nothing. Kennedy called again a.m., 10:30 but said that the clinic At Chapman was full. 2:00 p.m., Kennedy saw Chapman person and told her that Howard appeared very sick and serious need of medical care. Chapman refused to see Howard. was concerned Kennedy sufficiently over Howard’s condition that he notified his Lt. Wanda Clem- supervisor, mons, about Howard and refusal to see Chapman’s Howard. Clem- merely mons told him to prepare a written of the incident. report This was another policy jail procedure regarding care. May 23, 1992, a.m.,
On at 8:00 Howard manifested symptoms profound loss, weight total absence of slurred leth- appetite, speech, argy, vision, blurred fainting, weakness. He had to be profound carried to the clinic. Howard had a heart rate of 148 beats min- per ute. called when a Although protocol required pris- 911 be oner’s heart rate exceeded 120 LPN Lawrence did bpm, Thompson Chase, not call 911 or Dr. blood gave high Howard medication for pressure However, that had for such use. preapproved general been dangerous medication was for a diabetic. Howard was kept the clinic from a.m. p.m., 11:00 until 7:00 when he was returned to his cell. Howard was never seen aby physician. At 11:00 How- p.m., ard was returned to the clinic. He told LPN Ava McLeod that lie was time, faintness, At that he had an dying. unsteady gait, vision, blurry a heart rate of 126 bpm, and of 136 rebounding pulse bpm. Chase, LPN did not call an ambulance Dr. but continued to treat him only high blood pressure by changing pressure the blood medication.
After Howard’s return to the clinic at 11:00 p.m. May 1992, Deputy Gary Nicholson observed Howard in cell holding distress, observed that Howard appeared “rough,” lethargic, incoherent, and Howard had an thirsty. overwhelming odor of sweet ammonia about him. LPN McLeod told Nicholson that she thought that Howard was a diabetic. While LPNs had the to call authority ambulance, that, 911 for an policy cost, was because of an ambu- lance was not to be called in the except case of a medical emergency. *3 LPN McLeod Chase, consulted with Dr. by telephone who was on call. Dr. Chase neither clinic came to the to examine nor Howard ordered that Howard be sent to the room at the emergency hospital. By tele- Dr. phone, Chase ordered a change pressure blood medication without knowing signs Howard’s clinical and symptoms.
After 6:30 a.m. Sunday, May 1992, Howard was returned to his cell by Thompson. LPN Howard told his cellmate Melson that he was dying. The cellmates created a commotion to get deputies to Howard, do something about because Howard appeared to them to be a.m., critically ill. At 7:00 LPN Thompson arrived with a deputy cell, again Howard was carried to the clinic. p.m., At 1:40 Howard’s father and sister came jail, to the and Howard was taken to area, the visitors but Howard could not talk and fainted. Howard was then returned to the p.m., clinic. At 1:55 Howard’s heart rate increased to 144 bpm, and his blood A pressure dropped. jailor sufficiently became concerned that he called LPN McLeod called Dr. Chase to tell him that deputy had called for the paramedics. Dr. Chase jail. did not come to the 24, 1992,
At 2:10 p.m. May as result of the call telephone from the jailor, paramedics, Moore, two Jim Waites and William They arrived. detected acetone on immediately Howard’s breath. Howard was a near coma and in a wheelchair. He lethargic was and could keep eyes open; not his he was to voice non-responsive only commands' and he The responded pain; grasp. lacked test, which glucose fingerstick administered a simple paramedics test, it was simple on this glucose. the maximum for Based registered At the hospital, was diabetic. immediate that Howard opinion their workup. on the blood registered Howard 1200+ 25, 1992, jail after removal from May At 1:00 a.m. on a.m. Center, He died at 1:20 stopped breathing. Medical Howard Held: No. A99A0680
Case error, all of which six enumerations set forth plaintiffs erred in sum- granting state different reasons the trial court why the theories analysis, to the defendants. For a mary judgment proper state claims. must examined on the basis of federal and liability in granting the trial court erred 1. The contend plaintiffs violating 1983 claims for summary on Howard’s USCA judgment § (a) the Amendment of the United rights Eighth Howard’s under: punishment, States Constitution to be free from cruel and unusual Howard, and i.e., medical care and failure to treat grossly inadequate (b) the Due Process Clause. We agree.
(a) prohibiting on an action under 42 USCA 1983 Liability Amendment punishment Eighth cruel and unusual violation “acts rights through under the United States Constitution exists harmful to evidence deliberate indiffer- sufficiently [and] omissions Gamble, needs,” ence to of an inmate in Estelle v. jail. serious medical 429 U. S. SC 50 LE2d the interests or every governmental affecting
Not action Amendment prisoner subject Eighth of a well-being incarceration, and wan scrutiny. only unnecessary After ton pain punish infliction of constitutes cruel and unusual ment Amendment. To be cruel and Eighth forbidden punishment, purport unusual conduct that does not to be ordinary at all must involve more than lack of punishment obduracy due care for the It is prisoner’s safety. interests or wantonness, faith, in good inadvertence or error *4 that characterize the conduct the Cruel and prohibited by Clause, Unusual Punishments that conduct occurs whether confinement, establishing connection with conditions of needs, restoring or official control over supplying Albers, 312, 475 U. S. Whitley [v. tumultuous cellblock. . . . 251) (1986)]. 1078, 319 SC 89 LE2d (Punctuation omitted.) 716, Osei-Kwasi, v. 718- App. Alford (2) (418 Thurman, 231 (1992); 719 SE2d accord Cantrell v. Ga. (1998); 229 510, County, 512 Webb v. Carroll App.
403 196) (1997). App. Ga. 584 Eighth inadequate state an
To Amendment violation supra, Gamble, medical care under Estelle v. it must be grossly [Howard’s] incompe- shown that treatment was “so inadequate tent, shock the or to excessive as to conscience be intolerable to fundamental fairness or where the medical inappropriate so care is as to evidence intentional maltreat- provide Rogers Evans, ment or a refusal to care.” essential (11th 1986). 1052, 792 F2d 1058 Cir. supra Osei-Kwasi, at 722-723 accord Cantrell v. Thur- Alford County, delay supra. man, “Also, Webb v. Carroll unnecessary access to medical care tantamount to and wanton pain may pris- infliction of constitute deliberate indifference to a (Citations omitted.) punctuation oner’s serious medical needs.” (11th Poag, 1995); 1537, Adams v. 61 F3d 1544 Cir. see also Brown v. (11th 1990). Hughes, [jailors] delay 1533, 894 F2d 1537 Cir. “If deny [E]ighth [A]mendment ., access to medical care . . is vio- [A] provide [E]ighth lated. ... refusal to essential care violates the [A]mendment.” Rogers Evans, at 1058. [Eighth medical] require
All Amendment cases knowl- edge plaintiff of the medical needs of the and the intentional provide necessary refusal to care in order for such con- Eighth duct to constitute “deliberate indifference” Amendment violation within Estelle. Our cases have consist- ently “knowledge held that of the need for medical care” and provide “an intentional “deliberate indifference.” . . . Carswell v. refusal that care” constitute Bay County, (11th 1988); 454, F2d Cir. Ancata v. Prison Health (11th 1985). 769 F2d Cir. omitted.) (Emphasis County, Merritt v. Athens Clarke 233 203, 205 [as meaning We hold instead of deliberate indiffer- ence] prison that a official cannot be found liable under the Eighth denying Amendment for an inmate humane condi- tions of confinement unless the official knows of and disre- gards safety; an excessive risk to inmate health or the offi- cial 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. (B) (1) (114 Brennan,
Farmer v. U. S. SC 128 LE2d *5 Ault, 708, 709 (1994); accord Yizar v. at 208. County, supra Merritt v. Athens Clarke a need not show that However, “an Amendment claimant Eighth actually or to act that harm would befall [jailor] believing acted failed inmate; despite an it is that the official acted or failed to act enough risk harm.” Farmer v. Bren- knowledge his a substantial of serious nan, at 842. “To state an Amendment violation for supra Eighth Gamble, it must supra, medical care under Estelle v. be inadequate shown that treatment was ‘so inade- grossly incompetent, [Howard’s] care.’ quate provide [was] or excessive ... or a refusal essential (6). Osei-Kwasi, Thus, knowledge 722-723 supra [Cit.]” at Alford for the indifference means an awareness that purpose deliberate from the inmate needs medical care because of a serious risk of harm injury, illness or as evidenced the clinical by signs symptoms that are a readily by person. Knowledge observable reasonable diagno- of deliberate indifference does not a final purpose require sis, correct diagnosis, complete history a medical when the inmate has not been allowed to see and to examined a by physician be when medical care has been Adams v. unreasonably delayed. Poag, 1544; at supra 1538; Brown v. at Carswell v. Hughes, supra Bay at 457. County, supra
Such knowledge may be shown circumstantial evidence demonstrating are surrounding facts circumstances such that a person reasonable would know and the risk appreciate harm from a need, serious medical unless were they deliberately indifferent. A defendant will make the admission of an rarely aware- ness and appreciation the inmate was in serious need of medical harm, care to avoid the risk of because to do so is an admission of subjective indifference, i.e., admission of a state of mind and culpable liability. Merritt v. Athens Clarke County, supra “[W]hen at 208. need obvious, for medical treatment medical care that is so cursory as to amount to no treatment at all may constitute deliberate indif- (Citation omitted.) ference.” Adams Poag, accord supra Ancata v. Prison Health at 704. “A medical need is seri- supra if ous it is ‘. . . one that is so obvious that even a would lay person easily recognize the necessity [Cits.]” doctor’s attention.’ Ramos (10th 1980). Lamm, 639 F2d Cir. “A series of incidents closely related in may time disclose a conduct pattern amounting to deliberate indifference. Repeated delayed or denied examples may medical care indicate a deliberate indifference author- prison (Citations omitted.) ities to the suffering that results.” Rogers v. Evans, 1058-1059; Ward, accord Todaro v. 565 F2d (2nd (11th 1977); Cir. Harris v. Thigpen, 941 F2d Cir. 1991); Lamm, Ramos v. [jail at 575. “When or medical guards personnel] ignore without serious medical explanation prisoner’s them, infer may condition that is known or obvious to the trier fact (Citations omitted.) indifference.” Brown v. Hughes, supra deliberate Therefore, may at 1538. deliberate indifference subjective proven reasonable inference drawn from circumstantial evidence facts and circumstances. surrounding (i) case, In with denying obviously this sick inmate repeatedly a serious medical need access to a or a physician hospital emergency room proper diagnosis where and treatment can be made *6 does not escape Eighth against from the Amendment prohibition denial of medical care because neither nor simply jailors paramedical personnel inmate, know what is with the other specifically wrong than that he is sick. Adams seriously Poag, supra; v. Brown v. Hughes, supra. Such denial of a repeated prolonged access to inmate physician sick obviously seriously constitutes deliber- ate Brennan, indifference and reckless conduct. Farmer v. at supra Ignorance bliss; otherwise, 842. is not a would premium placed upon ignorance in order to when an escape liability illness is not diagnosed and the sufferer is allowed to slowly die without proper diagnosis or Therefore, denial, treatment. repeated delay, insuffi- cient or inappropriate medical care of an obviously sick inmate in serious need of medical care constitutes circumstantial evidence of subjective, deliberate indifference. See Whitley Albers, v. supra at 321; Gamble, Estelle v. 103-104; at supra Setter, Wilson v. 501 U. S. 271) 294, 296-299 2321,115 SC (1991); LE2d Anderson v. City of (11th Atlanta, 678, 778 F2d 686, n. 12 1985); Cir. Merritt v. Athens Clarke County, at supra 208.
Here, jail LPNs deliberately ignored pleas Howard, his cellmates, and deputies either to a physician have examine Howard — — or to send him to the hospital, and finally a medically untrained deputy was forced to call 911 for paramedics; such evidence (plus evidence of the serious medical needs of Howard from the same wit- nesses) constitutes some circumstantial evidence of their culpable mind, i.e., state of subjective indifference, deliberate because such acts or omissions are not negligent require a conscious decision to act or not to act. See Merritt v. 208; Athens Clarke County, supra at Van Alstine v. Merritt, 734, 222 App. Ga. 735 (1996); Jones, Johnson v. 178 346, 348 (1986); see Setter, also Wilson v. at supra 296-299. government
The duty has a to provide minimally adequate medi- cal care to its Atkins, 42, inmates. West v. 487 U. S. SC 40) (1988); 101 LE2d Harris v. Thigpen, However, supra. adequate medical care means that level of medical care reasonably commensu- rate with modern medical science and a quality of care acceptable within prudent professional standards; it means level of health ser- vices that is reasonably designed meet routine as well as emer- States, 1488, 1493- 941 F2d Fernandez v. United medical care.
gency (11th 39, 821 F2d 1991); DeCologero, States v. Cir. United (1st the inmate Lamm, at 574. "Where 1987); supra Ramos v. Cir. he so that system inadequate, medical care demonstrates condition, liability his to medical care for denied access effectively 686-687, at Atlanta, City supra Anderson v. has established. been 5; Garcia at n. accord supra Health n. Ancata v. Prison (10th 1985); Cir. Wellman 768 F2d County, v. Salt Lake (7th Lamm, 1983); 269, 272-274 Cir. Ramos Faulkner, 715 F2d Ward, 574-575; proper at 52. absence supra Todaro v. supra objective, lack of care constitute underlying such policy care and County, supra indifference. Clarke Merritt v. Athens deliberate 206-207. serious medical
Here, life-threatening, there is evidence that his untreated diabetic existed, Howard died from need because as to question the evidence raises a factual Accordingly, ketoacidosis. serious medical need the defendants’ response whether Brennan, at 837 Farmer v. amounted to deliberate indifference. (B) County, Athens Clarke Merritt v. Poag, supra; Adams examination, the LPNs’ policy practice, at 207. As an established of an criti treatment, obviously in transfer to a delay hospital inmate, physi ill rather than examination and treatment cally *7 care a cian, totally jury may such inadequate constitute Thus, non-treatment, such it constituted non-treatment. find would be the cause of How policy, proximate of such consequence 115, 503 U. S. 120-124 City Heights, ard’s death. Collins v. (112 of Harker 261) (1992). 1061, 117 LE2d SC (ii) from his failure to Hodge, liability As to Sheriff his arises (b), See also Division infra. supervise jail employees. lia- supervisor’s test to determine a apply three-prong
We (1) failure to bility: supervisor’s adequately whether subordinates constituted deliberate supervise train (2) needs; inmate’s medical whether a rea- indifference to an in the would under- supervisor’s position sonable person train and constituted supervise stand that the failure to indifference; whether the con- supervisor’s deliberate constitutional causally duct was related the subordinate’s [Cit.] violation. Svcs., Health at see also Ancata v. Prison Poag, supra
Adams v. have sufficient plaintiffs presented 706. As to each prong, at determination. jury to raise an issue of material fact evidence Columbus, case, Muscogee County, gov of policies In this rights constitute a violation of constitutional entity, ernmental providing potentially or insufficient medical inadequate, delayed, care and treatment and raise a factual as to of question the causation Here, Howard’s death. policy caused constitutional violation force,” as the “moving which was executed its Monell v. employees. Svcs., 658, Dept. Social 436 U. S. 690-694 SC 56 LE2d policies Such or constituted the policy evidence of actual deliberate indifference. Merritt v. Athens Clarke County, supra 207. “If the government liable, itself is to be held as opposed to hold ing employees its liable then individually, liability such must arise from a governmental policy action or inaction that caused the con violation, stitutional as well as the injury.” Id. at 206. case,
In shown, this such has been because the LPNs and Dr. Chase acted or refused to act due to the implementation of such gov ernmental policy providing insufficient care and treatment Howard and excessively delaying transportation his to the hospital for budget reasons. Such acts omissions of the employees and were agents not individual acts of negligence vindictiveness, were within policy of providing inadequate treatment. Bd. of County Bryan Brown, Commrs. County 520 U. S. 403-407, SC 137 LE2d Monell v. Dept. Social 691-695; Merritt v. Athens Clarke County, supra at 206. The subjective element of “deliberate indifference” is evidenced the acts Chase, and omissions of Chapman, McLeod, and Thomp son implementing policies. Id. at “[A] 207. claim of deliberate indifference to a prisoner’s serious medical needs has two compo nents: whether evidence of a exists; serious medical need so, if [and] whether the defendants’ response to that need amounted to deliber ate indifference. [Cit.]" Adams v. Poag, supra at 1543. As to the first case, in this prong death established that the medical need was seri ous; latter, as to the the evidence presented by the plaintiffs makes it a jury question. Haskins,
Under Lau’s Corp. v.
Merritt v. Athens Clarke (iii) that, to Howard’s death prior evidence provided Plaintiffs in deliberate indifference diabetes, engaged the defendants from in not diabetics.1 treating pattern practice a through policy inmates from have died diabetes while The fact ten to thirteen and 1992 is some evidence of deliberate custody between for medical care and treatment appropriate indifference to providing physician’s Dr. Bruce Newsome and As early diabetics. identification, care, Holmes warned that assistant Richard and that deaths inadequate preventable treatment of diabetics was Newsome, Roy Dr. Hodge, Sheriff needlessly occurring. were aware Reese, Management, specifically Director of Risk were diabetic inmates were at risk.
(iv) of one denied medical attention and allegations held to state a cause of [when sick] incarcerated have been Noble, F2d 495 Hughes action under USCA 1983. 1961). (5th con- Cir. The federal courts have demonstrated cern that where needed medical care is refused the denial delay of aid constitute improvident may deprivation constitutional due Fitzke v. 468 F2d process. Shappell, 1972). (6th Cir. 317) (1982); Roswell,
Davis v.
examined
diabetes
respiration,
from the acetone smell on
non-responsiveness except
breath,
Howard’s
his
and his
pain.
paramedics
Therefore,
admin-
simple fingerstick glucose
istered a
test that showed the maximum
glucose
possible
indicating
level
of 400+
device,
on that
diabetes.
Thus,
properly
Howard’s critical medical condition was obvious to a
paramedic.
recognized
trained
The LPNs should have
earlier the
signs
symptoms
clinical
realized,
minimum,
diabetes or
at the
profoundly
physician.
that this
sick inmate needed to see a
This was
right
coupled
a violation of a constitutional
that was
with causation.
Supreme
analysis
The
Court . . . set forth an
part
two-part require-
“under-color-of-state-law”
of the . . .
fairly
causing
deprivation must be
ment. The conduct
“under-color-
to be conduct
in order
to the state
attributable
of-state-law.”
“fair attribution”
as the
This is characterized
approach
part
we
which
two
into a
It is itself broken
test.
case[:]
application
facts of this
here for ease
outline
(i)
by:
deprivation
The exercise
must
caused
A.
(ii)
rule of
right
privilege
state, or
created
some
(iii) person
imposed by
whom the
state,
conduct
depriva-
charged
party
responsible.
with the
B. The
state
(i)
*10
official,
He is a state
in that:
with
a “state actor”
tion must be
(ii)
significant
together
or has obtained
he has acted
or
aid
chargeable
(iii)
is otherwise
officials,
his conduct
from state
separate requirements
B
A and
are
to the state.
necessary
conduct “under-color-
to establish
each of which
of-state-law.”
citing Lugar
supra
Oil
731-732,
v. Edmondson
Moreland,
at
Poss v.
482)
(102
(1982);
accord Cantrell
Co.,
SC
73 LE2d
2. Plaintiffs mary judgment state claims. on their various
(a) (a) imposes duty § and the cost for 42-5-2 While OCGA custody county upon county, inmates in the of a medical care of immunity county sovereign or its of such statute did agents waive Georgia employees. II, IX the 1983 Con- I, Art. Sec. Par. immunity sovereign state and for the stitution created constitutional Georgia political § Act, Claims OCGA 50- Tort its subdivisions. against seq., specifically excluded tort suits counties. 21-20 et county capacity immune in his official Further, sheriff may liability performing liable an official function from tort immunity by county sovereign only extent that the had waived 159) Seay Cleveland, 64, 65 SE2d statute. See (1998); v. 270 Ga. (452 “[A] Richardson, SE2d Gilbert v. Ga. county any made so suit for cause of action unless is not liable to brought under a the- OCGA 36-1-4. “This includes actions statute.” ory Early negligence plaintiffs in this case. have asserted as (360 602) (1987).” County Fincher, 47, 49 SE2d v. 184 Ga. (Punctuation omitted.) County, App. 305, Schulze v. DeKalb (1998). Muscogee City Columbus, Thus, the 307 County, Chapman, Hodge McLeod, well as Sheriff and LPNs protected capacities, Thompson tort are all from in their official immunity. Seay supra by sovereign 65; Cleveland, at See v. action Richardson, supra. Gilbert
(b) McLeod, and Hodge Chapman, Thompson Sheriff and LPNs all as their official capacities, were sued in their individual as well capacities. be held he
“[Hodge] negligent [when liable might supervision Cleveland, Seay has] been in his personal capacity!.] [Cit.]” sued Richardson, at 65; at see also Gilbert v. 754. Since the supra supra supervision, including adequate training requirements are enforcement of all ministerial policies, practices, protocol, nature, then, Hodge in his individual Sheriff has no capacity, protec- Cleveland, immunity. Seay tion official or See qualified 65-66, Richardson, n. Gilbert v. 750. see also
Providing adequate medical attention
for inmates under
defendants’
is a
act
custody
control
ministerial
sheriff
.
and his or her
. .
deputies
because medical care is a
right
fundamental
and is not discretionary
requiring
care; thus,
not subject
act is
to either sovereign
(a)
immunity or official
OCGA 42-4-4
immunity.
(2); 42-5-
§§
2 (a);
City Roswell, supra;
Davis v.
Mayor
Johnson v.
&c.
Carrollton,
Macon-Bibb
County
Auth. v.
Hosp.
County,
Houston
(Emphasis in original.) Thurman, Cantrell v. at 514 The dissent Lowe cites v. Jones County, App. 372, 348) (1998) for the proposition training and supervi- of law sion personnel enforcement were discretionary acts. In that case, the sheriff sued in was his official only but had capacity pro- the tection of than sovereign immunity rather official for the immunity conduct of a in deputy to arrest a attempting motorist for DUI. See Seay Cleveland, v. Richardson, Gilbert v. supra at 754. In this case the was sheriff sued his individual as well as his capacity official capacity. If the dicta in County, Lowe Jones is a correct law, then, statement of Court, the as stated in dicta Supreme of the “[although [the sheriff] held might negligent be liable for supervi- had he Cleveland, sion been sued his personal capacity,” Seay Richardson, based supra, upon Gilbert v. to be supra, is treated as an incorrect statement the law the dissent accorded and no force Supreme is a correct state- If the Court and effect? statement supervision personal capacity is not in a discretion- law, ment then dealing upon super- ary with relies cases ministerial. dissent but discretionary personnel rather than a as a law enforcement vision of jailors, authority who lack not deal with act; does ministerial peace any personnel. Therefore, lan- certification, nor officer discretionary guage opinions acts of to ministerial versus in such non-peace officers was dicta. good inapplicable supra, Adams, law to the but
Schmidt diag- upon to was a failure case, because such case based facts of this nose discretionary phy- physician’s act, assistant-nurse, a and the seq. § have under 43-34-101 et broad dis- sician’s assistants cretion physician OCGA carry supervision the of a out medical treatment under to registered perform. In this
that a nurse or LPN cannot they discretion, to case, because failed allow the LPNs exercised no signs patient by physician the examined when the clinical and symptoms protocol physician mandated examina- under either a emergency prisoner room, tion failed to physician to the or an ambulance take accurately report existing signs symptoms jail and clearly guide- following out call, and to act in set failed requiring lines, no all ministerial acts exercise of deliberation judgment. distinguishable Thus, from this Schmidt v.Adams case. training can the least
An LPN has least exercise discre- provider. seq. et tion licensed health See OCGA 43-26-30 as a care provi- practice practical nursing” “The sion of care for of licensed means compensation, supervision under the physician practicing tistry, practicing practicing medicine, a dentist den- podiatrist practicing podiatry, registered or a nurse
nursing provisions applicable in accordance with care of law. Such shall relate to the maintenance of health through prevention illness acts authorized board, ing: include, to, which shall not be the follow- limited (A) Participating planning, imple- assessment, in the delivery mentation, and evaluation of the of health care ser- specialized appropriately vices and other tasks when (B) regulations; rules trained consistent with board personal Providing patient observation, care, direct hospitals, nursing emergency clinics, homes, assistance *12 facilities, treatment practice including, or other health care facilities in areas of coronary care, limited to: inten-
but not emergency surgical recovery, treatment, care, care and sive pediatrics, outpatient obstetrics, or other such services, care, home health (C) Performing practice; areas comfort of (D) safety Administering measures; treatments and medica- (E) tion; supervi- in the Participating management delivery patient sion of unlicensed in the of care. personnel (7). OCGA 43-26-32 §
A registered requires nurse a different license and qualifications LPN; therefore, greater from an an RN discretion in patient has care. See OCGA 43-26-1. § nursing” nursing”
“Practice or of to “practice per- means form for or the compensation performance compensation ill, of act in care any and counsel of the or injured, infirm, and in promotion maintenance of health individuals, with or groups, both the life It throughout span. requires substantial specialized of the humani- knowledge ties, sciences, sciences, natural theory social nursing assessment, a basis for nursing diagnosis, inter- planning, vention, includes, It to, evaluation. not limited care; of provision nursing administration, eval- supervision, or uation, thereof, any combination of nursing practice; teaching; counseling; the administration of medications and treatments as prescribed by a physician practicing medicine title, accordance with Article 2 of of Chapter 34 this or a dentistry dentist practicing accordance with Chapter title, of this or a podiatrist practicing podiatry accordance with Chapter 35 of this title. (6).
OCGA 43-26-3 § Dept. Svcs., dissent cites Edwards v. Children &c. 339) (1999) and mistakes the discretionary powers case, health care forth in set this which only possess, RNs with discretionary the limited powers an LPN this case. As statutes, described in the licensing the discretion is same. “nurses,” While says this case their merely powers discretionary statute are neither conferred nor upon exercisable LPNs. See (7). OCGA Further, 43-26-32 the dissent fails to distinguish § Dept, Edwards v. Children &c. supra, action under the Act, Tort Georgia Claims OCGA 50-21-23 waiving sovereign immu § nity, from a suit against city/county employee under official immu nity. 50-21-22 “discretionary OCGA defines duty” function or Tort purposes Georgia Claims Act it is “a only; duty function a state requiring employee officer exercise his or her policy judg ment in choosing among upon alternate courses of action based a con social, sideration political, or economic under factors.” Even Act, Georgia Tort Claims this court’s interpretation “discretionary Sues., Dept, Edwards v. Children &c. function” in appears supra, *13 the scope “The of discre construction. overly statutory broad be an dissent], would which urged [the tionary exception function ‘social, factors,’ or political, economic decision affected any include Dept. the waiver.” as make the swallow exception is to so broad (1) accord Brown, Dept. v. Transp. Brown, v. 180-182 Transp. (1995). supra, v. &c. dis Clearly, Children Dept. Edwards the facts. case on law and from this both tinguished in their indi- Further, sheriff the LPNs were sued since the as to conscious questions the record raised serious capacities, vidual as to the deceased’s medical condi- defendants indifference such find their conduct could that jury tion and treatment so that malice. wilfulness, malice, or actual See corruption to amounted Thus, Hawkins, 266 the Ga. 390 Merrow issue. summary granting judgment trial court erred in McLeod, to the extent Thompson, to Chapman, As LPNs diagnose or to treat was a discre- appropriately their failure to act, them from tort tionary qualified immunity protected or official Richardson, 750; v. DeKalb supra See Schulze liability. Gilbert However, refusal 308. to extent their or County, supra at administering medical care and treatment and their refusal delay the protocol to call an ambulance when Howard’s condition exceeded did not the exercise dis- mandating hospital require transfer for cretion, immunity official they qualified performance lack or Cleveland, 65-66, Seay supra their ministerial duties. See n. Richardson, Gilbert v. at 750. commonly
A act is one that abso- simple, ministerial lute, definite, arising under conditions admitted exist, merely spe- to the execution of proved requiring act, however, duty. cific A calls the exercise discretionary judgment, deliberation and which turn entails personal facts, conclusions, reasoned and act- examining reaching way on them in a directed. ing specifically (Citations omitted.) v. DeKalb punctuation County, Schulze (2). at 308
Thus, are some of LPNs’ acts omissions entitled official other acts or omissions constitute ministerial con- immunity while Therefore, in tort. they may duct which be found liable trial summary judgment court erred as to those ministerial granting acts and omissions. No. A99A1258
Case trial erred in sum- granting 3. Plaintiffs contend that court Dr. on the 42 1983 action for violat- judgment Chase USCA mary process rights rights Howard’s due and his under ing Eighth free Amendment of the United States Constitution to be from cruel i.e., and unusual medical care and punishment, grossly inadequate agree failure to treat Howard. We for the reasons set forth Division 1, which controls.
4. contend that the trial erred in granting Plaintiffs court sum- on their Dr. mary judgment various state claims as to Chase. We *14 agree. a employee acting
As in official county capacity, his Dr. Chase was covered while by sovereign immunity acting as medical director jail, for the he because was such duties in the performing course his with the employment city; therefore, negli- he cannot be liable for or gent supervision jail the medical staff at training the or for its I, II, IX, Const.; See Sec. Par. policies. Art. 1983 Ga. OCGA 50-21-20 seq.; Seay Cleveland, (1); et v. at 65 supra 196) Harry Glynn County, v. 269 (501 503, (1998); Richardson, Ga. 505 SE2d Gilbert v. supra; v. County, supra Miller, Schulze DeKalb at Jackson v. 176 Ga. (335 220 App. SE2d
However, doctor, a medical as he was not in the course of acting county his official duties as a employee jail medical director case, but, instead, when he act in acting failed to this was as a physi- cian, so that his alleged negligence simply was that of a medical doc- tor failed provide who to treatment to a in patient. primary duty His this instance was to his than patient (2) city. rather to the Keenan v. (482 253) 791, 267 Ga. 794 Plouffe, (1997); SE2d see also v. Davis 670) Stover, (1988); 258 156 Adams, Ga. SE2d Schmidt v. supra 157-158; Miller, at v. supra; Jackson Roberts v. Grigsby, Ga. App. 633) Thurman, cf. v. dicta Cantrell at 515. A physician’s professional standing trusting creates a relationship that cannot be A impunity. professional breached with an person liable for abuse of the in him reposed trust the public, of the provisions compensation notwithstanding. A prisoner com- to trust his pelled that treatment will made inde- be doctor’s pendent professional judgment. relationship Because between physicians jail physicians sovereign cannot use the patients, immunity law a shield to insulate themselves from individual lia- for bility malpractice medical claims. Keenan v. Plouffe, 795. go Dr. to jail Since Chase failed to examine or treat How- ard or to have him transferred to hospital, instead to choosing a change order in medication without all of the clinical knowing signs a symptoms disclose, that reasonable examination would there no to diagnosis was exercise of discretion as Howard’s and treatment. Therefore, (1), v. Cooper, 52-53 Swofford (1987), aff’d, Cooper Swofford, (Deen, J., P. 379-383 (1988), Grigsby, supra Roberts discretion, are deal the exercise of which with concurring specially), deal did not with supra, v. Cooper, to case. this inapplicable Swofford a treatment, a to allow psy- with decision diagnosis a medical Likewise, Grigsby, therapy. Roberts leave as part chiatric a psychiat- decision to allow made the supra, psychology the chief ric to released. patient opinion expert Chase is against supported
The case Dr. failing go jail the standard of care to he deviated from May nurse at 11:00 signs p.m. the clinical from the hearing after examine, treat, transfer Howard to hos- He failed to 1992. Therefore, jury issue of fact for deter- there existed material pital. Thus, malpractice action fail- simple this was mination. examine, treat, trial court erred in granting ure or transfer. The to Dr. Chase. summary judgment the trial court abused its discretion
5. Plaintiffs contend their renewed motion sanctions. denying for wilful fail- sought Hodge’s Plaintiffs to strike Sheriff answer court, trial in the discovery ure with order. The exercise comply discretion, on renewed motion for sanctions plaintiffs’ of its sound striking pleadings denied the ultimate sanction defensive against Hodge. a default entering judgment against answer and of a default entry judgment Dismissal *15 wilful, faith, in in disregard who is in bad of defendant conscious discovery appropriate are an sanction. Didio v. compelling order (462 450) 550, (1995); Smith v. Chess, 218 Ga. 551 SE2d Nat. App. (354 678) (1987). Ga., 55, 58 Neither 182 SE2d the App. Bank Ga. of wilfulness, only need movant nor the trial court find actual con duty act in the to make disregarding discovery scious or intentional is the sanction of default. Resource Network necessary imposing 573) (1) (501 Co., 232 242 SE2d App. Hotel Intl. v. Ritz-Carlton Ga. (484 343, (1998); v. Medicare 225 Ga. 346 Corp., App. Potter American 43) (1997); 344, Ferry Wirtz, App. Ltd. v. 188 Ga. Landing, SE2d Bells Indus, 50) (373 Avant, (1988); SE2d Sta-Power v. 134 Ga. App. 345 (2) (216 897) (1975). 952, 956-957 SE2d
However, controlling “[t]rial have discretion in dis- judges broad sanctions, including of and courts will imposition appellate covery, there trial court’s decision on such matters unless has reverse a (Citations omit- punctuation been a clear abuse of discretion.” and (1) ted.) 41, 42 Equifax App. West v. Credit 230 Ga. Information 300) (495 (1997). interfere with a appellate The courts refuse to SE2d discretion, in of abuse trial court’s exercise of its broad absence of the Civil Practice Act. Gen. Motors discovery provisions under the (486 (1) Conkle, 34, 226 38 SE2d App. v. Ga. Corp. with its orders attempt compel compliance should
trial court
417 through the of sanctions less than The drastic imposition dismissal. in only sanctions of dismissal and are fla- imposed default most — wilful, faith, grant cases where the failure in or in is bad conscious However, very of an order. broad discretion is disregard granted in with judges applying compliance sanctions to assure court orders. 548) 705, (1987); Joel v. Duet 181 707 SE2d Holdings, App. Ga. Conkle, Corp. see also Gen. Motors Con- Loftin Gulf (3) (480 604) tracting Co., 210, (1997); 224 SE2d App. Ga. 214-215 160) Ga., Hernandez v. State App. Ga. (1991). However, the failure of the court to impose any trial sanctions discovery flagrant all when abuse has constitutes an been abuse Schweikhardt, discretion. Vlasz v. 516-517 App. White, Hohlstein (1968). Where no sanction been in a imposed flagrant has case legitimate and there was no evidence of a trial excuse before the court, this Court will “remand for reconsideration and the imposition the trial sanctions as court deems Vlasz v. appropriate.” Schweikhardt, so, court, at 517. Even it is for trial all from circumstances, facts to decide what sanction appropriate. Therefore, the trial in did court this case not err in denying impo- sition the ultimate sanction of default when it previously imposed other sanctions. Judgment in part and reversed in part remanded affirmed Pope, J., JJ,
with direction. P. Ellington, Barnes and concur in judg- J., Blackburn, only. Johnson, J., Smith, J., ment C. P. concur in only in judgment part part. dissent Judge, concurring in judgment only part and dissent- Smith, part. ing I concur in (a), the result 3, 4, reached Divisions 5 of majority, but I do not agree with all that said in those divi- sions. Because I believe that contain much they that is not necessary analysis, I fully cannot concur concur in must the judg- only ment as to those divisions. (b)
I
dissent, however,
must
respectfully
opin-
Division
declares,
ion. The majority opinion
with
to Sheriff
respect
Hodge,
that “the
requirements
supervision,
including
adequate training
*16
and enforcement of all policies,
and
are ministe-
practices,
protocol,
(452
Richardson,
rial in nature.”
neither
But
Gilbert
As the majority absolute, simple, one commonly act is that “[a] ministerial to or proved under conditions admitted definite, arising and duty. aof exist, merely specific and the execution requiring however, per- act, calls for the exercise discretionary A in turn entails which judgment, sonal deliberation conclusions, act- facts, reasoned reaching the examining way [Cit.] directed.” specifically on them in a ing (395 275) (1990). Arsdale, 95, 196 96 SE2d App. v. Van Ga. Joyce discretionary a agency generally of a law enforcement Supervision Lowe 231 Ga. County, App. than ministerial function. v. Jones rather (“‘The 348) (1998) (499 of a 372, operation police SE2d 373 to including training the department, degree supervision officers, discretionary its is a function the provided governmental ministerial, to proprietary, as a or administra- municipality opposed ”). has not the tively majority routine function.’ The demonstrated acts were ministerial in Hodge’s basis for its conclusion that Sheriff nature. any holding also has failed to set forth basis for majority jail the the nurses at the practical employed
that actions of licensed Thurman, Cantrell discretionary. were ministerial rather than (1998), written the author of App. Ga. SE2d the to majority, general obligation provide the also declares that sheriff, the medical care to is a ministerial act but the prisoners therein do not that assertion. The writer of support authorities cited view of ministerial functions a dis- majority proposed also this Coffey County, sent v. Brooks 231 Ga. App. (1998), other grounds, Coffey, rev’d on Rowe v.
The law
court is
currently
established
this
different.
quite
659) (1993)
Adams, 211
In Schmidt v.
(full
function),
issue of
held that
discretionary
concurrence on
we
jail
of a
physician’s
employed by
failing
actions
assistant
prop-
failing
condition
erly
diagnose
timely
to order
transfer
to a
facts,
were
hospital
experience,
“based
his examination of
his
his
and the exercise of
best
and therefore were discretion-
judgment,”
The declaration of the
of a
not create a
ary.
“protocol”
existence
does
diagnostic
ministerial
The medical field has
duty.
long published
procedural manuals
establish criteria
make recommenda-
65-66,
nity.
police
that the actions of
officer
Id.
n. 1. Gilbert
fact concluded
grant
summary judg-
discretionary
were
rather
than ministerial and affirmed
case
(6).
Gilbert, supra
immunity.
the officer
at 752-753
ment to
under
doctrine of official
*17
mere
diagnosis
publica-
for the
and treatment of disease. The
tions
standards, however, does
remove from
practice
tion of such
the
that, as
nursing
professionals,
medicine or
the
nurses
requirement
as in
judgment,
the
and exercise
Schmidt.
examine
facts
Dept.
In the
decision
Edwards v.
Children &c.
recent
339) (1999), the
a deceased
parents
that
at a youth development
inmate
workers
nurses
alleged
summon
absolute,
to
nondiscretionary
duty
center had an
medical
within a
daughter
aid for their
and failed to do so
reasonable time.
however,
the
concluded,
“type
We
that
of care
what
support
are
and how much medical treatment
to
decisions that must
provide
left
work
employees
be
to the discretion of the
who
with
inmates.
Moreover,
Cantrell,
Id. at
upon
[Cits.]”
700.
Edwards
itself relies
to
supra,
county
duty
hold that while the
had
to
provide
treatment,
provide
care
“what medical care to
is discretionary
subject
immunity.
Edwards,
and therefore is
to
at 699.
[Cit.]”
We note that
Court
Supreme
Georgia
granted
has
certio
rari
specifically
Edwards
consider whether
this
“improp
court
erly expanded
definition of ‘discretionary function’
found in
50-21-22,”
OCGA
part
Georgia
Act,
of the
Tort Claims
in light
of the
Supreme
Dept.
Brown,
Court’s decision in
For reasons, these I must dissent respectfully from Division 2 majority opinion. I am authorized state that Chief Judge Johnson and Presiding Judge join Blackburn opinion. this July Decided July 29, 1999
Reconsiderations denied
Burkey Burkey, & D. for Frederick Burkey, appellants. Scrantom, Ford,
Page, Scrantom, Jr., Tucker Sprouse, & W. G. (case Jr., Clark, Jr., James C. A99A0680). H. Eugene Polleys, appellees no. Hatcher, Stubbs, Land, Rothschild, Martin, Hollis & C. Robert (case no. Mullin, Page, appellee R. Jr., M. Carter Clarence A99A1258). COMPANY INDEMNITY
A99A0665. INTERNATIONAL SERVICE, EMPLOYER INC. v. REGIONAL (520 SE2d Presiding Judge. McMurray, *18 filed this to Indemnity action Company International
Plaintiff compensation due on workers’ insurance allegedly premiums recover Service, Inc. Defend- Regional Employer to defendant policies issued to its caused damages business ant answered counterclaimed compensation for workers’ insurance premiums charged excessive by plaintiff rating data to licensed due to incorrect submitted case, a a jury On the trial of the returned verdict organization. counterclaim, awarded, special on the dam- favor of defendant $23,006. $109,000 judgment fees of The followed ages attorney Held: verdict, and plaintiff appeals. the bases for among 33-24-47 listed 1. Violation OCGA § pre-trial alleged consolidated order. defendant’s claims a of certain workers’ cover- compensation violation was cancellation limine, sought to exclude evidence of age. By plaintiff motion from the trial moved for directed arising losses cancellation cancellation. The wrongful verdict as to defendant’s counterclaim However, as plaintiff denial of motions is enumerated error. con- both no and did not a request cedes that defendant “introduced evidence on O.C.G.A. 33-24-47” which formed the basis defendant’s charge § claim, ‘any cancellation and that “there was an absence of wrongful evidence’ in of a claim for cancellation.” While support wrongful wrongful cancellation claim should not have plaintiff argues it is in fact it not. It jury, apparent been submitted was was any follows that error in the denial of these motions harmless serve as a basis for In order does not reversal. to obtain proper shown. appeal, reversal on harm as well as error must be Sparti (3) (496 490); Joslin, 230 Ga. Walker v. GRO App. 366). Assoc., first of error complains 2. Plaintiff’s enumeration denial its in limine from seeking preclude offering motion defendant alluding income, lost diminished profits, corporate otherwise lost any in value as a non- reputation alleged and diminution result compliance with OCGA 34-9-136. determining
A motion in limine method of pretrial evidence, admissibility party may pretrial secure