*4 HARTZ, Before SEYMOUR and BALDOCK, Judges. Circuit SEYMOUR, Judge. Circuit Mata, D. an inmate of the Annabelle (PMC), filed a 42 Pueblo Minimum Center against § action four U.S.C. Colorado (DOC) employ- of Corrections Department alleging Eighth ees violations of the Fourteenth Amendments to the United Constitution. Ms. Mata claims de- States her with consti- provide fendants failed tutionally adequate medical care when she culminating in pains suffered severe chest granted pute, a heart attack. The district court then we review the case to determine if summary judgment correctly for defendants Dana the district court applied the Gamble, Weldon, Quintana, substantive law.” Amy Donna Simmons & Co. v. Corp., Kerr-McGee Hough, determining Ms. Mata had failed F.3d (10th Cir.1999) (citing Kaul v. genuine to raise a issue of material fact Ste (10th Cir.1996)). phan, 83 F.3d respect Eighth with to an Amendment We construe the factual record and the claim and that defendants were therefore reasonable inferences therefrom in the qualified immunity. entitled to The court light most favorable to the nonmoving par granted partial summary judgment for de- ty. Colo., Imaging See Selenke v. Med. Judy fendant The court then Saiz. certified 1249, 1255 Cir.2001). a final judgment pursuant its order as 54(b). Fed. R. Civ. P. After defendant invokes quali appeals, contending the dis- immunity, fied plaintiff a case like trict court erred when it determined there one, alleges this which a violation of the genuine were no issues of material fact Amendment, must demonstrate (1) Weldon, concerning whether Ms. that the defendant’s spe actions violated a *5 Quintana, Hough and Ms. were deliberate- Katz, cific right. constitutional Saucier ly 194, 201, indifferent to Ms. Mata’s serious medi- 2151, 533 U.S. 121 S.Ct. (2) (2001). cal needs and whether Ms. was Saiz L.Ed.2d 272 If plaintiff the fails to deliberately indifferent to Ms. meet her Mata’s seri- burden on this threshold inquiry, up qualified immunity ous medical needs to the time inquiry Ms. Saiz comes to an plaintiff received directions from a doctor end. Id. If the to imme- meets this initial burden, diately send Ms. she must then show that hospital. Mata A the con right stitutional majority panel “clearly of the was established” affirms the district prior challenged to the official grant summary court’s action. Id. judgment relevant, dispositive “The Quintana, inquiry deter Hough defendants Saiz mining right clearly whether a is estab grant summary reverses the court’s lished is whether it would be clear to a judgment for defendant Weldon.
reasonable officer that his conduct was SEYMOUR, J., joined by HARTZ, J., as unlawful the situation he confronted.” Weldon, Hough, to defendants and Saiz. 1179, Harrington, Holland v. (10th Cir.2001) (internal quotations
I. omitted). Because the district court never grant summary “We review a judg qualified reached the second qualified ment on the basis of immunity immunity de analysis and there is little doubt Lakewood, novo.” v. City Jiron 392 that deliberate indifference to inmate’s (10th Cir.2004). F.3d 410 Summary judg clearly serious medical need is a estab appropriate ment is if the record right,1 shows lished constitutional we concern genuine “there is no as to any solely following issue mate ourselves with the ques rial moving fact and that party summary judgment tion in the context: judgment entitled to a as a matter viewing light of law.” the evidence in the most Mata, inquiry 56(c). “If our reveals favorable to Ms. do the facts show Fed.R.CivP. genuine no issue of material fact in dis- the defendants’ actions violated her Indeed, 1. clearly the defendants do not contend that established. right the constitutional at issue here was not Saucier, rights? Hough a second administered EKG and
Eighth Amendment 201, 2151; normal, 121 S.Ct. Gonzales v. although U.S. at told Ms. it was it is Mata 1179, (2005). Martinez, F.3d 1185-86 undisputed that this EKG changes showed performed prior day. from Id. the one Mata, favorably to Ms. most Viewed Saiz, 185-87, at 231. Ms. Practi- Nurse following background to record reveals (NP), tioner at the infirmary arrived short- time At the of the events litigation. this ly performed after the evaluation Ms. claims, her Ms. Mata was rise to giving Hough. Ms. per- Id. at 235. Saiz PMC. During at the the eve- incarcerated formed independent assessment and in- 29, 2000, she sought medi- ning of October formed Ms. Mata that she suffered from experiencing she was cal because attention at lining inflammation. Id. Aplt.App. at 184. Ms. severe Although Ms. also read Weldon, Practical Saiz the second a Licensed Nurse normal, (LPN), duty infirmary at the EKG as she forwarded on PMC the EKG printout Mata evening. Id. 190. Ms. to a doctor for review. Id. at 186. Weldon, pain to reported her chest The physician ordered Ms. Saiz to send there was nothing who responded immediately hospital. Mata to the Id. infirmary was closed could do because Ms. Saiz Ms. Mata to instructed return to have to and Mata would return sick housing change her unit and “full into infirmary morning. call the following at the greens” trip for the to the hospital. Id. Id. at 184. told, walking Ms. Mata did as she was hill, approximately up changing two blocks infirmary, to the returned clothes, walking and then back to the advised, morning of on the October facility. main was then transport- Id. She LPN, Quintana, con- informed Ms. of her *6 emergency ed room at the Parkview 185, at Id. tinuing 188. Ms. Hospital Pueblo, 186, Colorado. Id. at her chest reported “eight” Mata as on ten,” 236. a scale from “zero with ten trans- patient to the worst a can lating It at was determined the that hospital being no and zero whatsoev-
imagine Ms. a heart Mata had suffered attack. Id. Quintana provided er. at 195-97. Ms. Id. performed at 186. was surgery Heart the nursing Ms. Mata with assessment which same day open occluded circumflex electrocardiogram performing included coronary artery, it was but unsuccessful. (EKG). Ms. Quintana Id. at 185. read Ms. permanent Mata suffered and irre gave as normal Ms. Mata a EKG versible heart damage to her and sus “lay-in,” slip permission to allow her to disability. tained permanent Id. at 266- prison-related assign- other miss work and 67. day. Id. for the Ms. Mata claims ments pain persisted throughout her Ms. Mata filed this action against the day, report causing her it to several prison four nurses from whom sought she guards, she did not return to the infir- but treatment, asserting that their failure to day.2 Id. mary again provide adequate medical her care violated Eighth Amendment. We will set forth return to the
Upon infirmary at 6:00 by further morning 31, proffered a.m. Ms. Mata in on the October Ms. by support Ms. claim as we Hough, Reg- specific Mata was evaluated of her address (RN). 185, at Nurse Id. issues istered 230. below. Quintana by
2. she disputed contends told Ms. Mata to but this fact is Mata in her infirmary pain persisted deposition testimony. Aplt.App. if her at return to the
751
II.
Eighth
constitutes an
Amendment viola
plaintiff
tion where the
can
delay
show the
prison
A
official’s deliberate in
resulted in substantial harm.” Oxendine
difference to an inmate’s serious medical
(10th
1272,
v.
241
Kaplan,
F.3d
1276
Cir.
needs is a violation of the
Amend
2001)
omitted).
(quotation
The substantial
cruel
un
prohibition against
ment’s
harm requirement “may be
Gamble,
satisfied
punishment.
usual
v.
Estelle
429
loss,
97, 104,
lifelong handicap, permanent
285,
or con
U.S.
97
Cir
liberate indifference
requires
test
plaintiff to present evidence of the prison
prisoner
produce
must first
culpable
official’s
state of mind. See Es
objective
deprivation
evidence that the
telle,
standard substantial purpose at one end and poles negligence that the fact risk obvious. Farmer, at other.” 511 knowledge or (internal 842, 114 Id. at 1970 citations S.Ct. Supreme 1970. The 114 S.Ct. U.S. at omitted). This so because “if a risk is is analogized this standard in Farmer Court that reasonable man would obvious so a recklessness, which makes a to criminal it, we that might [the realize well infer consciously when she disre person hable Garrett, did in fact realize it.” defendant] risk of serious harm. gards a substantial (citation omitted). at 950 254 F.3d 836-38, Thus, “[de Id. at S.Ct. Accordingly, in order for Mata to does not require indifference liberate summary judgment Eighth avoid on her to harm.” Mitch express intent finding claims, required Amendment she was to 80 F.3d Maynard, ell demonstrating set forth facts that her omitted). Cir.1996) (citation An inmate sufficiently objectively need was prison “need that a official acted not show serious, delay and that defendants’ believing actually that harm or to act failed meeting that need caused her substantial inmate; it enough would befall Sealock, harm. See at 1210. F.3d despite acted or failed to act his the official Then, to meet a substantial risk of serious knowledge of test, Mata was deliberate indifference 842, 114 Farmer, 511 harm.” U.S. S.Ct. required provide supporting added). An official “would (emphasis inference that defendants knew about liability if the evidence showed escape disregarded substantial risk of harm to merely verify underly refused he Hunt, safety. her health and See strongly suspected he to be ing facts that at 1224. true, declined confirm inferences suspected strongly risk that he to exist.” 8, 114 Significant
Id. at n. S.Ct. 1970. III. ly, of intent can be this level demonstrated Objective Component evidence: through circumstantial Ms. Mata contends prison requi- official had the her severe
Whether attack knowledge presented site a substantial risk is a heart each question subject purposes of fact serious medical need for demonstration ways, including noted, previously the usual inference Amendment. As evidence, in evaluating from a fact- circumstantial whether deliberate indiffer- Cir.1972) (prisoner cise” the senior medical at the officer stated claim of deliberate *8 prison. prison wilfully prison merely at 994. The Id. staff indifference where told staff deprived specified prisoner, complained leg limped the inmate of this and who pain, irrepa badly care needed medical which resulted in and the communicated need for medi- attention, damage rable to the to physical inmate. Id. cal rub his areas and prisoner Circuit held that the stated a obtain Fourth numbness failed to medical treat- hours); gatekeepers his cause of action because had ment for him for twelve v. Martinez Mancusi, 921, Cir.1970) (2d prescribed denied him needed and 443 924 F.2d (claim at 994-95. See also v. care. Id. Jones Lock of deliberate indifference made where hart, 1192, (8th Cir.1973) prison 484 F.2d 1193-94 staff and doctor removed defendant injury (prisoner hospital surgery who sustained back and was but from after defendant's provided infirmary pills prior adequate recovery, at the but denied to his and did so by paramedic permission prison contrary express to see doctor to the instructions defen- indifference); operating surgeons hospital for deliberate at- stated claim dant's Fitz 1072, tendants). ke v. 468 Shappell, F.2d 1074-75
753 established, only subjective component claim has been we first to the ence of the whether the harm suffered rises to the symptoms pris- look to test: were such that a “sufficiently cogniza- serious” to be employee a level on knew the prisoner risk the Punish- ble under the Cruel Unusual (recklessly) disregard and chose it? Farmer, 834, 511 at ment Clause. U.S. published opinions None of our stating 1970. The Supreme S.Ct. Court has above-quoted the test has needed to objective component on the elaborated objective choose whether the test the test. the deliberate indifference But (1) component applies to alleged the harm that given purpose require- the for this (2) prisoner to the prisoner’s or the symp limit significant, ment is to claims to as prison toms at the time of the employee’s trivial, opposed suffering, dicta in this Thus, actions. the view that it applies descriptions objective circuit’s com- the former is neither foreclosed nor ponent may unnecessarily confuse the mat- contrary precedent. Moreover, to circuit ter. it is most consistent with the Supreme Thus, on several occasions our objective Court’s delineation of the compo published opinions Farmer, have defined nent see 511 at U.S. suffi ciently serious medical need as “one that (stating that “alleged S.Ct. the harm diagnosed by has man been be, objectively, serious”); must sufficiently dating that treatment one is so obvious Seiter, see also Wilson 501 U.S. lay person easily that even a would recog 2321, 115 (1991) 111 S.Ct. L.Ed.2d 271 necessity nize the for a doctor’s attention.” (noting objective that the inquiry test is Sealock, (internal quota 218 F.3d simply: deprivation sufficiently “Was the omitted); serious”). tion marks see also Olsen v. Mall,
Layton Hills (10th Cir.2002); Garrett, 949; course, 254 F.3d at prisoner Of must be Oxendine, Hunt, 1276; 241 F.3d at in selecting 199 careful what harm to claim. problem F.3d at 1224. The with prisoner may this for The be better off claiming say mulation is that it can be read to that some intermediate harm than rather the the determination whether a medical need last untoward event to befall her. After sufficiently all, is serious is to be made exclu prisoner may prove the not be able to sively by symptoms presented the at the by any this last event was caused prison time the employee government has contact with actor or the actor who Indeed, prisoner. the that is how Judge requisite caused the event acted with the interprets Baldock the culpable Accordingly, test his dissent. state of mind. the objective based, We do not test as prisoner’s may view so claim be for exam limited. For example, delay by pris ple, when on intolerable chest rather than employees on in damage pris subsequent results to a damage. heart Once the heart, harm, however, oner’s the question prisoner raised selects the objective prong objective of the deliberate indiffer focus should be alleged ence test is whether harm solely sufficiently on whether that harm is (such damage) sufficiently as heart seri serious. Then court can turn to causa *9 (which is), undoubtedly ous it rather than tion and the In prong. this symptoms case, below, whether the displayed to the as we set out both Ms. Mata’s (as prison employee sufficiently are pain serious severe chest and her heart attack Baldock). argued by Judge sufficiently satisfy this con each are serious the text, symptoms displayed objective the are prong. relevant objective satisfy the just damage, heart would adopts such implicitly itself Sealock this, component. case, prisoner the inAs approach. severe employees with prison
presented then addressed the The court Sealock a heart ultimately suffered pain It so not to symptoms. did prisoner’s considered briefly The court they strong attack. were evi- determine whether attack itself attack, that the heart claim but to evaluate possible of a heart dence harm to estab- sufficiently serious sufficient harm they constituted was the whether objective component satisfy of the deliber- the com- objective in themselves to the lish fol- test, rejected the claim court’s discussion was as ponent. but The ate indifference causation, and then lows: establish failure to for harm: to other claimed that he presented
turned evidence Appellant pain which suffered from severe consider, first, appellant’s whether We by caused reasonably] he believed was to meet ‘sufficiently serious’ need was suffering pain attack. The a heart of the deliberate objective element the him get Barrett’s failure to imposed Delay in medical care test. indifference several hours. The treatment lasted Eighth Amendment only constitutes ‘unnecessary Amendment forbids Eighth can plaintiff show violation where pain.’ and wanton infliction Wilson in substantial delay resulted Seiter, S.Ct. U.S. concluded that court harm. The district Certainly, 271. 115 L.Ed.2d delay that the failed to show appellant as a result every twinge suffered him caused medical treatment receiving delay in care is actionable. any injury. case, however, evidence in this suffi- general presented Appellant objective ciently establishes the element some- when that time is of essence of the deliberate indifference test. attack. He a heart experiencing one is (internal parenthetical and citation Id. medical evidence specific present did not omitted). Thus, pain, severe chest resulting from to his heart damage attack, symptom consistent with a heart if failed delay. appellant Even condition under the ob- a serious medical damaged show that his heart was jective Amendment’s however, he has shown delay, we believe standard. Id. deliberate indifference sufficiently serious to that his need was case, present In the Ms. Mata attention. require prompt medical did in fact presented evidence she omitted). (internal Al- days, Aplt. citation severe for several Id. at 1210 suffer 184-85, damage failed evidence that though App. expert for heart the claim attack, evidence, quoted ultimately suffered a heart id. for lack of she causation (Aff. MD).4 Levene, harm, at 266 of Arthur As language that the ultimate suggests that, tion, suggest pursuant while in the care of defendants. See Defendants 1997e, Levene). (Aff. only § Aplt.App. Mata is entitled to at 265 of Dr. Dr. U.S.C. bring likely” suit if she sustained "highly federal civil opined Levene that it was physical injury of defen- due to the conduct myocardial experienced ischemia on the Mata dants and that she failed to make such morning of October 2000 and that there showing prior actual heart attack. to her very high degree probability” "a However, suing Ms. Mata is experienced Mata an actual heart attack endured, injury. not for emotional infarction) morning (myocardial between the following 30 and 6:30 a.m. the pain, of October experienced severe chest day. ultimately culminating myocardial Id. in a infarc-
755 Sealock, See, Eighth delay may in be e.g., we reiterated unconstitutional. (delay id. at 1210 of “several hours” in “unnecessary such Amendment forbids taking pains inmate with chest to hospital pain.” infliction of and wanton Wilson Amendment); violated Boretti v. Setter, 294, 297, 111 501 U.S. S.Ct. Wiscomb, (6th 930 F.2d omitted). 1154-55 (1991) (citations Cir. L.Ed.2d 1991) (“prisoner pain who suffers needless every Although twinge “not suf- ly readily when relief is available has a delay in fered as the result of medical care against cause of action those whose delib actionable,” Ms. Mata’s evidence of erate indifference is the cause his suf suffering goes beyond twinge well fering”); Hughes, Brown v. 894 F.2d objective and is sufficient to establish the (11th Cir.1990) (few hours in delay element of the deliberate indifference test. treating inmate’s broken foot could render Sealock, at 1210. 218 F.3d liable); Wallenstein, defendants Lewis v. Mata, fact, Ms. in exceeded the mini- Cir.1985) (fifteen evidentiary requirement mum in outlined delay treating minute in in inmate cardiac by presenting specific Sealock Amendment). may arrest violate Eighth unnecessary pain she suffered both against We will address the claims each worsening and a in her condition—in the chronological defendant in order. permanent form of and irreversible heart Thus, damage. are genuine there factual Weldon, A. Defendant Dana LPN precluding summary judgment issues above, As detailed on the evening of against objective Ms. Mata on the compo- 29, 2000, October sought Mata nent of the Estelle test. attention suffering because she was from response severe chest to her
Subjective Component Weldon, complaints pain, of chest question The closer is whether PMC, duty nurse on at the told Ms. Mata produced Ms. Mata evidence sufficient to nothing there was she could do for her support a claim that defendants exhibited infirmary since the was closed. Ms. Wel- “deliberate indifference” to her serious don notified her sole re- prisoner may medical needs. A satisfy the course was to return to sick call the follow- subjective component by showing that de words, ing morning. In other Ms. Weldon delay fendants’ medical treat providing neither administered first aid nor sum- ment unnecessary pain caused either or a despite moned medical assistance worsening plea of her condition. Even a brief Mata’s for medical attention. Myocardial “blockage (angina); jaw ischemia is the elude: chest or neck coronary resulting skin; arteries in insufficient pain; pain; clammy arm shortness oxygen reaching
blood and the heart." breath; Mayo vomiting. nausea and http://www.mayoclinic.com/in- Clinic Heart Book: The Guide Ultimate See Gersh, ed., (Bernard J. 2d voke.cfin?id=HQ01646. Heart Health myocar- A full-blown ed.2000). Clinic, According Mayo to the myocardial dial infarction describes ischemia life-threatening. [c]ardiac ischemia can be long enough that lasts to result in necrosis or sudden, blockage coronary A severe (heart muscle) myocardial death of cells. artery may part lead to death of the heart Thus, Mayo Clinic Heart Book at 86. there is (heart attack). muscle Cardiac ischemia doubt on no the record before us that Ms. may rhythm also cause an abnormal heart Mata offered substantial evidence she suffered (arrhythmia), fainting which can lead to physical injury pains from her chest and that may even sudden death. Cardiac ischemia delay providing proper defendants' care symptoms, especially people cause no injury. contributed to the symptoms with diabetes. But often in- *11 summary significant is is that the evidence granted court What
The district Weldon, concluding presented supports to the district court judgment for Ms. that a in fact produced had no evidence the conclusion that Ms. Weldon was Mata suffering from her would have Mata was from severe medical assessment aware Ms.. any way per- from the one pains required differed in and medical attention. Quintana morning. by the next much personally reported formed Ms. as contrary, conclude on this rec- To the we importantly, Ms. Weldon. More Ms. Wel- sup- provided that Ms. Mata perform gatekeeping ord don refused to her an inference that Ms. Weldon porting potential emergency by role in a cardiac disregarded and a substantial seeking knew about not a medical evaluation for Ms. health. risk to Ms. Mata’s from a physician, Mata either assistant, or practitioner required nurse Mata The fact that Ms. was “assessed” Department of both the Colorado Cor- morning after she by another nurse rection’s Clinical and Proce- Standards medical attention from Ms. Weldon sought and dures for Health Care Providers irrelevant to Ms. Mata’s cause action nursing well-established standards of care. Events against occurring Ms. Weldon. “Cardiology Health Care Services” subsequent complete to Ms. deni Weldon’s section on chest in the DOC’s Clini- care to Ms. Mata no al of medical have and Health cal Standards Procedures for bearing on whether Ms. Weldon was delib January pro- dated Providers, Care erately indifferent at the time she refused vides: It no to treat Ms. Mata. makes sense Procedure IV. say that Ms. Mata would have had valid if against claim Ms. Weldon no one ever A. Chest Pain:.... rescue, to her but she does not if she came 2. Acute cardiac great- disease is the enough to have someone
was fortunate
correctable,
single, potentially
est
several
after
assist her
hours
Ms. Weldon
depart-
cause
death within the
provide
any
refused
atten
therefore,
population
pa-
ment’s
and
tion. Ms. Weldon could
know whether
carefully
tients must be
screened to
performed
an
would be
on Ms.
assessment
prevent
diagnosis.
missing a
morning.
the next
She also could
Mata
performed
not know what
assessment
angina management
Unstable
is a
following morning
would reveal con
frequent
potentially
patient
lethal
cerning Ms. Mata’s medical condition.
Therefore,
problem.
patients pre-
Therefore, any assessment of Ms. Mata’s
senting
evaluation
condition conducted several hours after
symptoms possibly representing
other
her encounter with
is irrele
Ms. Weldon
myocardial ischemia:
vant to
whether Ms. Weldon knew and
performed
a. Will have an EKG
disregarded an
excessive risk
reading
will have
official
Boretti,
safety.
930 F.2d at
Mata’s
Cf.
EKG obtained.
(prisoner’s
1154-55
treatment of his own
b.
be evaluated onsite
either
Will
wound,
healing
wound’s
without
provider
onsite or the on-call mid-
infection, did not
prisoner’s
undermine
provider.
level
claim;
prisoner’s
Amendment
suffering
only exception
needless
from
when relief
5. The
to the above
patients
transport-
was available
sufficient to show delib
would be
who are
indifference).
immediately
a hospital
erate
ed to
because
*12
severity
presenting
by
physician,
of their
been ruled out
a
physi-
any
practitioner.
If
cian’s assistant or nurse
signs.
and
there is
symptoms
having
a
patient
whether the
doubt
(Aff.
McCall,
ApltApp. at 251-59
of Marie
infarction, transport
them
myocardial
RN)
added);
(emphasis
see also id. at 243-
hospital.
(Aff.
to the
LPN)
Mendenhall,
of
M.
Sandra
(making essentially
points).
same
As this
facility physician
Either
court has held:
on-call
be advised of the
physician
will
... deliberate indifference occurs when
being evaluat-
disposition of the cases
prison
prevent
officials
inmate from
nursing
pain by
ed for chest
staff
receiving
deny
treatment or
him access
provider.
or the mid-level
personnel capable
to medical
of evaluat-
added).
Aplt.App.
(emphasis
at 200-02
ing the need for treatment....
If ...
Health
Providers are defined in the
Care
professional
the medical
knows that his
physicians, physician
protocol as:
assis-
particular
role in a
medical emergency is
tants,
practitioners.
and
Id. at
nurse
solely
gatekeeper
to serve as a
for other
Weldon,
LPN,
plainly
201. Ms.
personnel capable
treating
medical
of
“provider”
meaning
not a
within the
of
condition,
delays
if
and he
or refuses
protocols.
gatek-
these
She was instead a
gatekeeper
to fulfill that
role due to
eeper required
notify
physician,
either a
indifference,
deliberate
it
stands
rea-
assistant,
physician
practitioner
or nurse
may
son that he also
be liable for delib-
pain.
of Ms. Mata’s chest
denying
erate indifference from
access
to medical care.
gatekeeper
requirement
This
was fur-
expert
ther established Ms. Mata’s
affi- Sealock,
davits Ms. Weldon’s argues Ms. that a Weldon viola denial of treatment Mata: medical Ms. tion procedures” of “internal does not gross clearly right This constitutes abdication establish that a constitutional duty responsibility, gross published de- has been violated. While re nursing quirements viation from standards of care for health care do not create .... [including] very rights, protocols constitutional such well-know[n] cer (for of nursing tainly standard care both circumstantial evidence that provide R.N.s) requires prison L.P.N.s and gatekeeper [which] health care knew of a any complaint be treated harm.5 substantial risk serious See (stat Evans, major emergency as a medical until Howell v. ing “contemporary such time as cardiac involvement has standards professional 5. The dissent claims that Ms. Mata failed from two nurses that is an "It respect extremely her burden to raise a fact issue with well-known standard of care and subjectively practice any complaint to whether Ms. Weldon was L.P.N.'s that for major aware of a substantial risk of harm to Ms. be viewed as a medical disagree. presented emergency Mata. We evi- until such time as cardiac involve- Quintana, by physician, phy- dence that Ms. an LPN with the ment has been ruled out assistant, Department practitioner.” Aplt. of Corrections who worked with sician or nurse Weldon, Mendall, LPN; (Aff. protocals. Aplt. App. knew about the at 245 of Sandra M. Quintana)("Q. (Aff. McCall, 252-53) App. (Dep.of Aplt App. at 197-98 Donna of Marie you supposed RN)(making point). Are to call the if same It is a reasonable Weldon, you're paint? unable to relieve the chest A. I inference from this evidence that Ms. Quintana LPN, yes.... protocols, proba- believe in our new I trained was as aware as Ms. have, bly proto- requirements protocols would even if it wasn't in the and their re- col.”). presented garding Ms. Mata also severe chest addition, Huber, profession also are unlike defendant opinions of the in determining misdiagnose what consti- highly simply relevant Weldon did not indifference to medical Mata; rather, tutes deliberate completely refused care”), settlement vacated diagnose assess or Ms. Mata’s medical con- after (11th Cir.1991), but noted as re- F.2d 711 instance, by, dition at all taking her *13 Burden, in Howell instated pressure, listening blood to her heart with * Cir.1994). 191 n. performing and stethoscope, a cardiac work-up. Instead, Ms. Weldon completely argues granting also that Ms. Weldon duty refused gatekeeper to fulfill her as in her judgment ap favor was summary a potential emergency. was cardiac similarly situat Defendant propriate because Huber, contrast, Huber in ed Sealock. We did refer to the defendant the Sealock Huber, First, unlike disagree. prisoner defendant physician to a assistant for medi- does not contend she was Ms. Weldon cal treatment. Id. at 1208. pain chest is a cardiac unaware severe Similar to the assistant a serious medical symptom or condition. Sealock, if appel Ms. Weldon “knew that Sealock, Moreover, F.3d at n. 7. lant had unexplained pain, chest it would mandating that protocol the DOC ‘malpractice’ have been more than mere or pain as a cardi
Weldon treat severe ‘negligence’ fail call an ambulance” or ac evi symptom constitutes circumstantial contact qualified personnel medical that knowledge of dence of her the seriousness could properly assess and assist Ms. Mata. protocol unequiv of such The states at Id. 1211. The fact that Ms. Mata’s potential symp is a ocally pain that chest heart attack occur until did not after the disease,” “is tom of “acute cardiac which October 30 EKG does not defeat claim. her correctable, greatest single, potentially As a result of Ms. fail Weldon’s absolute department’s cause of death within ure to required protocols, follow the con population.” Aplt.App. at There 200-02. tact the appropriate personnel, medical no that the court was indication Sealock attempt to assist Ms. evidence, any Mata in presented any with such ei and/or fashion, there is evidence Ms. Mata had to ther plaintiff because the failed to intro unnecessary endure suffering for duce circumstantial protocols as evidence several that did additional hours knowledge defendant that chest “serve Huber’s any Estelle, pains penological purpose.” cardiac symptom, are a serious at at U.S. 285.6 because the events issue in Sealock S.Ct.
transpired protocols before the DOC at sum, Ms. Mata raised an issue Compare
issue published. here were Seal ock, respect material fact with 1207-09 Ms. Wel (describing 218 F.3d at events don on element of taking place January Sealock as in late deliberate 1996) produced with indifference. She via DOC’s Clinical Standards evidence Providers, her own deposition testimony affidavit and Health Procedures Care Services,” “Cardiology Aplt. Health Care suffering Ms. Weldon knew she was (dated 2000). App. January Moreover, at 200-02 pains. severe chest expert produced 6. expert angioplasty, also diac catheterization which physi- that had Ms. Weldon referred her to a might entirely prevented have Ms. Mata's standards, required by cian it was resulting permanent heart attack and heart “highly likely” testing that routine additional (Aff. damage. Aplt.App. at 265-66 of Dr. Le- myocardial would disclosed have ischemia. vene). prompted Such a disclosure would car- have EKG, performed coupled publish- Hough affidavits with DOC’s which Ms. “read” as normal. requirements suggest computerized for health care in- ed EKG, however, terpretation actually knew severe chest both Ms. Weldon changes possibly risk to read “abnormal pain posed a serious Ms. Mata’s due to myocardial ischemia.” Aplt.App. health and that Ms. Weldon’s conduct was EKG, performing After acceptable Hough reckless under medical norms. Ms. Mata’s produced reported Since Ms. Mata evidence that to Ms. Saiz, practitioner, a nurse just was aware of Ms. Mata’s med- who had Weldon arrived at infirmary. ical condition as well as the seriousness of Ms. Saiz then performed independent severe chest on the eve- assessment. unexplained ning jury reasonably could October The district court concluded that *14 that alleged find Ms. Weldon’s inaction on Hough’s Ms. actions failed to show deliber that date demonstrated deliberate indiffer- plaintiffs ate indifference to serious medi ence Ms. Mata’s medical to serious needs. agree. cal needs. We Unlike Ms. Wel don, Hough Ms. gatekeeper fulfilled her Amy Hough, B. Defendant RN duty by reporting symptoms Ms. Mata’s to infirmary Ms. Mata returned to the a nurse practitioner in with accordance the morning directed Ms. on the Weldon protocol pain. DOC for chest The district continuing complaints October with correctly court therefore concluded that Quintana severe chest Ms. was the Hough Ms. was not deliberately indifferent duty morning. nurse on that It is undis- to Ms. Mata’s serious medical needs and Quinta- that puted Ms. Mata informed Ms. summary was entitled to judgment on Ms. na suffering she had been from severe Mata’s Amendment claims. pain evening chest since the of October Saiz, registered an in Judy pain “eight” and her se- C. Defendant NP verity on a scale of zero to ten. re- performing independent After an assess- sponse complaints, to Ms. Mata’s Ms. Mata, ment of Ms. Ms. Saiz determined EKG, Quintana administered which the and informed Ms. Mata that her EKG was printout machine “read” as normal. Ms. normal suffering and that she was from a Quintana provided then Ms. Mata with a Nevertheless, lining chest inflammation. “lay-in,” or permission slip, excusing her copy Ms. Saiz faxed a to EKG prison from work and other duties for the Wermers, MD, Joseph physician who Baldock, day. Judge duration of the working facility was at another DOC on joined Hartz, by Judge address below Ms. morning the of October 31. After review- Quintana. against Mata’s claim Ms. ing printout, Dr. EKG Wermers deter- infirmary
Ms. Mata returned to the once mined that second EKG showed more on morning change October 31 at abnormal from the EKG Octo- approximately 6:00 a.m. and hospi- informed Ms. ber and that Ms. Mata should be nurse, Hough, a registered talized to determine had “[her] whether she sus- just killing chest was and tained a heart attack. He instructed Ms. [her] [she] hardly Aplt.App. could breathe.” to immediately 185. Saiz send Ms. Mata to the In response, Hough emergency Ms. instructed Ms. room. Ms. Saiz then instruct- Mata to return at 7:00 a.m. regular when ed Ms. Mata to return to her unit to infirmary began. hours change greens” trip When Ms. Mata into “full for her to a.m., so, hospital. returned sometime after 7:00 Ms. After Mata had done Ms. Hough signs prison facility. took Ms. Mata’s vital and returned to the main she coronary for
Thereafter,
transported
years,
[Ms.
seven
Mata]
she
emergency by prison
having
Quin-
Hospital
was not
a heart attack.” Ms.
Parkview
twenty-four
personnel.
gave
tana
Ms.
hour
Mata
slip, which
Ms. Mata
lay-in
allowed
to rest
correctly grant
The district court
day.
Quintana
also
Ms.
indicated
judgment for Ms. Saiz with
summary
ed
Mata’s
chart that
in-
Ms.
medical
she
to her actions before she instruct
respect
Ms.
infir-
structed
Mata to return
to return to her unit. Al
ed
if
mary
worsened.
produced
Mata
evidence that
though Ms.
Quintana’s
that Ms.
suffering
Nurse
statement
knew she was
severe
Ms. Saiz
having
Mata “was
heart attack” and
pains
that severe
health,
risk
Mata’s
her notes Ms. Mata’s
chart indi-
posed a serious
to Ms.
told
to return
cating
Mata failed
show Ms. Saiz was
Mata
if the
deliberately
insight
indifferent to her serious med
provide
worsened
direct
into
Hough
Quintana’s
Like
in Seal
ical needs.
defendant
Nurse
state of mind.
ock,
gatekeeper duty
Quintana’s
Ms. Saiz fulfilled her
*15
tocol for chest
chest
Ms.
her
had been relieved.
told her
when
Mata
as much
Ms. Mata
BALDOCK, J.,
HARTZ, J.,
joined by
as
she thought
“going
stated
she was
to be
Quintana.
to Defendant
dissent,
okay.”
Judge Seymour
In her
Quintana,
Defendant Donna
LPN
D.
Quintana’s
makes much of Nurse
after-
Finally, we
the district
address
acknowledgment
protocols
the-fact
re-
grant
summary judgment
of
to
court’s
her to
in the
quire
call
doctor
case of
Quintana.
Ms. Mata
Nurse
We assume
pain.” Nothing
chest
“severe
the rec-
objective prong
of the deliber
satisfies
however,
Quintana
suggests,
Nurse
ord
Quintana
test
to Ms.
ate indifference
suffering
Ms.
believed
Mata was
“severe
undoubtedly
satisfy
to
because she
fails
her,
pain,”
when she released
there-
Nothing in
prong.
the test’s
consciously
disregarding
known med-
suggests
Quintana
the record
Nurse
was
Farmer,
ical risk Ms. Mata. See
511
of
consciously aware
a serious medical risk
837,
Rather,
at
U.S.
.
This
is contro-
mary judgment,
obligated
we are
to view the
queried directly
deposi-
verted. When
in her
light
facts in the
most favorable to Ms. Mata.
tion,
responded
Quintana
that Ms.
chest
person suffering
that a
from
quire
that:
evidence demonstrates
Mata’s
Ms.
suffer-
Quintana she was
informed Ms.
reading
she
and on-
pain have an official EKG
Quintana per-
pains;
ing severe
by ei-
performed
evaluation
site medical
knew severe
an EKG because
formed
assistant, or
physician, physician
ther a
as an
symptom;
a cardiac
pains were
Quintana
acknowl-
practitioner;
nurse
qualified
was not
LPN,
Quintana
testimony
un-
deposition
edged
EKG;2
does not
a “normal” EKG
read
supposed to
protocols
der the DOC
she is
heart
impending
out an
necessarily rule
of severe chest
call a
cases
of
attack;3
standards
well-established
197-98;
Quinta-
and Ms.
pain, AplLApp.
protocols re-
and the DOC
nursing care
Everything
Scope
Frequently
of Prac-
Asked
"Most
2. The
Myers,
Disease:
You
MD,
Rob
Heart
Q
(2004)
added).
(emphasis
Colorado De-
Know provided
A's”
tice &
Need to
result,
Agencies
Regulatoiy
any
states:
ECG results are
Like
other test
partment of
always
percent
accurate. Some
performing an
of leads and
placing
The
complex
they
rhythm
are so
disorders
scope
practice
of an
EKG is within
however,
certainty
LPN,
diagnosed
without
reading
interpreting the
can’t be
with
or
scope
testing.
may occasionally
are not within the
further
The ECG
an EKG
results
12—38—117(l)(c)gives
suggest coronary artery
CRS
disease when other
an LPN.
authority
discipline any
statutory
coronary artery
testing
disease.
Board
shows no
person
upon evidence that the
has
may
you
appear
nurse
normal when
do
The ECG
negligently
willfully
acted in manner
you
disease—particularly
have such
if
safety of a
with the health or
any
you
inconsistent
showing
symptoms
aren't
when
his care.
person under
problems
One
with
have the ECG....
added).
(emphasis
See also
at 221
Aplt.App.
they
traditional ECGs is that because
are
(Aff. McCall) ("Under no
at 255
Aplt.App.
so,
performed
only
over
a minute or
some
nursing
any-
practice,
recognized standard of
rhythm
sporadic
abnormalities or other
where,
[inter-
ever authorized to
an L.P.N.
is
may
problems
be missed.
EKG].”);
(Aff.
id. at 247
of Menden-
pret an
Mayo Clinic
Book: The Ultimate Guide to
Heart
hall) (same).
ed.,
(Bernard Gersh,
Health J.
2d
Heart
ed.2000)
added);
(emphasis
see also J. Willis
heart conditions are detected
all serious
3. Not
Electrocardiograms:
Using
Interpreting
EKG,
Hurst,
as an ECG:
also known
(2001)
Concepts
Principles
and Vector
Basic
essentially
electrocardiogram
("The
... know the limita-
clinician must
gives
piece
screening
It
us a
of the
test.
example,
For
the clini-
tion[s]
[EKG].
only
picture, but
occasional-
cardiac
whole
*17
types
the
heart disease that
cian must know
of
rhythm
attack or
ly—as in an acute heart
electrocardiogram
present
the
can be
when
piece. Like all
definitive
disturbance—the
added).
normal.") (emphasis
tests,
pitfalls.
It must
it has limitations
patients
that
with a normal EKG
fact
these,
context of
interpreted within the
be
reading sometimes suffer from serious heart
requires, expertise
experience.
which
(1)
problems explains the rationale for
may
problems
go undetected
heart
Some
regulation prohibiting
reading or
LPNs from
prior
a
Someone who has had
the ECG.
interpreting
an
the results of
EKG/ECG
may develop a
electro-
attack
normal
heart
(2)
requiring
protocol
LPNs to immediate-
cardiogram
parts of the
over time. Some
ly
patients
experiencing
send
who are
severe
may
electrically
not be
visible on
heart
attack,
pain
angina
provid-
a
ECG;
chest
or
to "heatlh care
during an acute heart
an
even
er,” i.e., physician, physician
or a
assistant
may appear
Many people ask
normal.
ECG
ECG,
practitioner, for a
evaluation.
nurse
medical
impres-
perhaps under the
their
about
Aplt.App.
(“reading
interpreting the
at 221
healthy
a normal ECG means a
that
sion
heart,
scope
of an EKG are not within the
results
a nonnal ECG can hide a heart
but
LPN”);
("patients presenting
id. at 200-02
just
apparent
as
abnormalities
problem,
pain ...
be eval-
[w]ill
for evaluation of chest
may simply indicate variations of normal.
common;
ECG,
pro-
[health care]
either the
grey are
uated onsite
shades of
With
eye-
mid-level
viewing scenery
your
[health
vider on site or the on-call
without
it is like
provider").
care]
glasses.
appropriate special-
pains
na failed to seek the
that chest
are a serious cardiac
symptom.
that Ms. Mata’s
ized medical assistance
The events at issue in Sealock
suf-
appear
transpired
publica-
condition demanded. This evidence is
to have
before
satisfy
ficient to
element of
tion of
protocols
pertain
the DOC
that
pur-
indifference test for
deliberate
this case.
defeating
summary-
a motion for
poses
Finally, while the evidence suggests Ms.
judgment.
Quintana recklessly
duty
abdicated her
Weldon,
Quintana,
gatekeeper by refusing
anyone
to contact
like Ms.
contends
Mata,
qualified
that
to assess Ms.
granting summary judgment
in her
defendant
actually
Huber in Sealock
appropriate
favor was
because she is simi-
did refer the
prisoner
to a
larly situated to defendant
assistant within
Huber
two hours
summary judgment
prisoner’s complaints
whom
in
was affirmed
Sealock,
But
218 F.3d at
In
Sealock.
there are critical differences
sum,
Quintana
presented
between Ms.
and defendant Hu-
evidence that
First,
Quintana
severity
ber.
while there was no
aware of the
her chest pain
that defendant
and knew that such
Sealock
Huber knew unex-
plained
posed
serious risk to Ms. Mata’s
pain posed
a serious medical
health.
risk,
[qualified
“Failure to summon
Quin-
per-
there is evidence here that Ms.
sonnel
an ambulance
subjectively
or]
tana was
aware of the
would have disre-
serious-
risk,
garded
arguably
pain. According
constituting
ness of chest
de-
the court
Sealock,
...
liberate indifference to
serious medical
“Huber stated
that she did
need.” Id. at 1211-12.
consider the chest
to be a cardiac
rather,
symptom”;
she believed the defen-
reasons,
For the aforestated
I dissent
Sealock,
dant had contracted the flu.
218 from
majority’s
decision to affirm the
F.3d at
1212 n.
...
7. “Thus
she at
district court’s dismissal of Ms. Mata’s
most
a misdiagnosis.”
made
Id. at 1212 n.
Quintana.
claim
regard
with
to defendant
Quintana
7. Unsurprisingly, Ms.
makes no
claim in
such
this case. She conceded in
BALDOCK, J.,
Judge, dissenting
Circuit
deposition testimony
famil-
she is
part.
iar with
protocol
pain,
the DOC
for chest
Today
two-judge majority
sweeps
197-98,
ApliApp. at
which describes chest
away twenty-five years
binding
prece
potential symptom
as a
of “acute car-
effectively
dent as “dicta” and
relieves a
addition,
diac disease.” Id. at
201-02.
prisoner claiming deliberate indifference to
if
pains
she did not believe chest
were a her medical needs of the
satisfy
burden of
cardiac symptom, there would have been
objective
ing
of the deliberate
plausible
no
perform
reason to
an EKG.
test, i.e.,
indifference
the burden of show
*18
“
Second,
Quintana acknowledged ing
deprivation
the
of a medical need ‘so
protocols required
the DOC
her to
lay person
obvious that even a
ivould easi
seek specialized
ly recognize
medical treatment for Ms.
necessity
the
a doctor’s
”
circumstances,
Mata under the
no
Hunt
Uphoff,
while
attention.’
v.
199 F.3d
(10th Cir.1999)
1220,
presented
such evidence was
in
1224
(emphasis
Sealock
add
ed)
Lamm,
concerning
defendant
(quoting
Huber’s
Ramos v.
639 F.2d
(10th
559,
Cir.1980));
knowledge
proper
procedures.
medical
575
accord
v.
Olsen
Mall,
gave
1304,
We
no indication in
that pro- Layton
Sealock
Hills
312 F.3d
1315
(10th Cir.2002);
Stratman,
tocols were introduced as circumstantial
Garrett v.
254
(10th
Cir.2001);
evidence of defendant
knowledge
Huber’s
F.3d
Oxendine v.
(10th
liability, the need must be
Cir. constitutional
241 F.3d
Kaplan,
Colorado,
have
a
2001);
repeatedly
obvious. We
defined
Sealock
Cir.2000).
sufficiently
According to the
serious medical need as one so
authority:
lay person
easily
obvious that even a
would
nary a citation to
panel, with
recognize
necessity
the
for a doctor’s at-
by prison employees results
delay
When
words,
at 1. In other
the
supra
tention. See
heart,
prisoner’s
to a
the
damage
objective prong
lay
asks whether a
test’s
objective
prong
the
question raised
person
recognized
prisoner’s
would have
a
wheth-
indifference test is
the deliberate
sufficiently
medical need as
serious based
(such
heart dam-
alleged
the
harm
er
upon
presented
the circumstances
to the
(which it un-
age)
sufficiently serious
is
See,
Olsen,
prison
e.g.,
official.
312 F.3d at
is),
than
doubtedly
rather
whether
panic
attack
(addressing
whether
displayed
prison
to the
em-
symptoms
sufficiently serious to warrant medical
was
(as
sufficiently
argued
are
serious
ployee
Oxendine,
attention);
I.
case the need for an outside medical
objective
To satisfy
specialist,
sufficiently
serious to
objective
Eighth Amendment’s deliberate indiffer-
meet the
element of the delib-
ence
test,
the law
requires
prisoner
erate indifference
test,
[2]
that the
*19
delay in
that
prison
meeting
demonstrate that
officials failed to
Defendants’
need
“sufficiently
Finally,
him
address a
serious medical
caused
substantial harm.
See,
Hunt,
need.”
e.g.,
a serious medical condition.” Court’s inference, however, panel’s
at 22. The proper proof burden of
inverts immunity purposes. Ms. Mata
qualified Nurse
bears the burden show Weldon See rights.
violated her constitutional McMullen,
Nelson v. 207 F.3d
(10th Cir.2000) (noting once defendant defense, qualified immunity
raises a “the plaintiff
burden shifts to the to meet a test.”). two-part
strict Ms. Mata fails to
satisfy her burden because she has not knew of a substantial
shown Nurse Weldon deliberately
risk of harm and disregarded
that risk. judgment
I would affirm the of the dis-
trict court in all respects specifically
as to Nurse Weldon. ALLEN, Petitioner-Appellant,
Gerald
Larry REED, Suthers, and John The
Attorney General of the State of Colo
rado, Respondents-Appellees, added). ligated procure (emphasis to call an ambulance and at 1211 as- patient patient purposes treatment for the if the sistant's statement was relevant for experiencing unexplained subjective prong provided We because it insight concluded that Havens did know about direct "[i]f into his state of mind. In con- trast, pain, by testimony, may nothing suggests the chest his own he Nurse Weldon under- deliberately failing have been required indifferent in stood that alone her to Sealock, help. summon an ambulance.” summon Nurse statement notes faxing printout Mata’s EKG subjectively demonstrate she believed Ms. pro with the DOC accordance having was not a heart attack and Mata