*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. 261 Ga. 491 (1991), plaintiffs raised sufficient issues of material fact that the trial court should have denied the defendants’ motions for summary judg- (e). ment on the federal issues. See OCGA 9-11-56 *8 Thus, [with some evidence in and permissible reasonable inferences from] record that a jailor/prison official acted act, failed to despite knowledge of the substantial risk of harm [an of permanent injury inmate] under policy, [the there is creation aof material issue of fact] the plain- tiff summary judgment [by coming] forward with evi- of subjective dence indifference, deliberate [in addition to] evidence of objective deliberate indifference. [Cits.] 408 at 208. County, supra

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. 250 Ga. 8 accord City of Thurman, at 512-513 see City Cantrell v. Collins Harker at 119-120. Heights, supra Thus, the a restrictive medical policies conducting history inmate intake examination with undertrained who do not deputies or examine for diabetes and inquire regarding hypertension; having seriously LPNs examine and treat ill inmates with medi- significant cal needs without a a sick physician present seeing seriously within without a the inmate patient physician examining reason- thereafter; time having physician consulting able with the LPN by telephone directly observing, examining, instead of and working examination; sick inmate or up seriously performing follow-up having continuing chronically the LPNs to see a ill inmate seriously inmate; physician examining narrowly without a ever defining medical so that an sick inmate is not trans- emergency obviously in the ported hospital emergency physician to a room absence of a clinic; him in the which examining designing protocols 6,1992, required emergency example, For on March inmate Eric Killibrew treatment 22,1992, hospitalized On March inmate David Lewis had to be diabetic ketoacidosis. diabetic ketoacidosis. *9 primarily money by limiting are for cost effectiveness and to save — physician hospitalization seriously direct care and of ill inmates policies question jury all such demonstrate a of fact for the as to they whether constitute “deliberate indifference.” (b) by govern- Deliberate indifference to serious medical needs Eighth mental custodians However, violates Due Process. unlike an require violation, Amendment a Due Process violation does not sub- jective requires indifference; deliberate such violation action under Eighth color-of-law causation, inas an Amendment violation. (335 582) (1985). City See Davis, Roswell v. 255 Ga. of [PJlaintiff must establish a causal connection between any policy inadequate medical care or omissions of medi- deprivation process cal care and the constitutional of due rights [or Eighth City violation]. Amendment Roswell [supra plaintiff 163]. [42 USCA] Davis, § “A in a (1) deprived right action must show that he has been of a secured and that the constitution and States, laws the United the defendant acted under color of state law.” Cantrell Thurman, 512-513; Moreland, Poss v. 253 Ga. 456) (1985); City Spring 731-732 accord Cave Mason, 4-5 policies promulgated Here, the medical were and carried out requiring county provide under the mandate of a state statute that a adequate medical care for its inmates. OCGA 42-5-2. Howard was by physician jail April never examined through May in the clinic 23, 1992, from only by 25, 1992, when he died. Howard was seen practices policies promulgated under-trained the LPNs under only stupor It defendants. was after Howard reached a diabetic jailor, jail personnel, that a to paramedics called 911 for an ambulance transport hospital emergency Howard to the room. When the they immediately suspected Howard,

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 457 U. S. 922 question supra test, fact Thus, under this Thurman, at 513. v. exists as imple- the a causal connection between to whether there is jail policies and How- under-color-of-state-law mentation of medical ard’s death. granting court erred in sum- contend that the trial

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 207 Ga. App. 530 374) (1993); supra; Webb v. Carroll County, Cher- okee County Assoc., v. North Surgical Cobb 221 Ga. App. *11 499 Osei-Kwasi, v. supra. Alford In contrast, the determination what medical treatment to provide is an subject act discretion to official immunity. See Adams, Schmidt v. App. 156, Ga. (4).

(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 264 Ga. 744 476) (508 159) (1994), Cleveland, Seay SE2d nor 270 64Ga. SE2d (1998), broad and supports far-reaching that proposition.2 2 Seay, merely Supreme Georgia may In the Court of a reiterated that sheriff be sued in capacity only protected by qualified his individual to the extent not he is official immu- 418 observes, correctly

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 267 Ga. 6 of Transp. 849) (1996), involving design the distinction between decisions policy opening decisions highway intersection to traffic. But if the even scope discretionary may function altered Supreme future, Court the near it is nevertheless incumbent upon majority at this time to articulate the reasons for its determina that tion the decisions made here were ministerial and not discre tionary. Moreover, it appears this result will require we overrule Lowe and Schmidt and the upon decisions which they rely, because Cantrell wholly inconsistent with the law in existing Geor gia governing ministerial and acts. discretionary (b)

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