LAUREN ELMORE MCELLIGOTT, AS EXECUTRIX OF THE ESTATE OF THOMAS ELMORE v. MICHAEL G. FOLEY, SHARON WAGNER, et al.
No. 98-3451
United States Court of Appeals, Eleventh Circuit
August 3, 1999
D. C. Docket No. 3:97-CV-281-LAC
Before BARKETT, Circuit Judge, KRAVITCH and MAGILL*, Senior Circuit Judges. BARKETT, Circuit Judge:
PUBLISH
McElligott argues that the district court erred in concluding that defendants were not deliberately indifferent to Elmore‘s serious medical needs and awarding them qualified immunity. We reverse and remand for further proceedings on Elmore‘s claim against Dr. Foley and nurse Wagner in their individual capacity, but affirm the grant of summary judgment to Okaloosa County.
BACKGROUND
We review the district court‘s grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. Those facts indicate that, on August 4, 1996, Elmore was incarcerated at the Okaloosa County Jail. On his entry into the prison system, Elmore had experienced burning abdominal pains for approximately five months. Nurse Lynda Barrow pointed out this history on her assessment of Elmore, and nurse Sharon Wagner, the head and only registered nurse at the jail, approved Barrow‘s evaluation and noted that Elmore should be brought to medical on an “as needed” basis due to his history of stomach problems. Dr. Foley, the sole jail physician, signed off on the nursing staff‘s initial
After his incarceration on August 4, Elmore began experiencing severe abdominal pain, vomiting, and nausea, telling jail medical staff that his abdomen was cramping and “on fire.” On August 10, he was examined by nurse Roberta Eastman and placed on a liquid diet and given pepto-bismol. Both Dr. Foley and nurse Wagner were notified of Elmore‘s symptoms. Although Dr. Foley visited the jail several days later, he again did not see Elmore, explaining that his symptoms had improved and that “it did not appear he was ill enough for me to see him.”
On September 1, 1996, nurse Wagner received a telephone call at 3:00 A.M. from one of the jail nurses, who reported that Elmore had severe intestinal pain and had vomited several times. The medical records indicate that Elmore was still vomiting one-half hour later. Elmore‘s pain persisted throughout the morning and, after making morning rounds, nurse Barrow telephoned Dr. Foley. Despite not
On September 3, 1996, Dr. Foley examined Elmore for the first time. Dr. Foley was aware that Elmore was in severe pain, observing that “when I touched his abdomen just with the tip of my finger, he became rigid, clenched his fist as if I was causing him some really severe acute pain.” Dr. Foley also noted that Elmore‘s feces had a foul smell. Dr. Foley ordered blood work and a urinalysis and prescribed Bentyl, an anti-gas medication. Dr. Foley also requested records from Elmore‘s prior treatment at a Veterans Administration hospital in Atlanta. Elmore took this medication for approximately one month, at which time Dr. Foley ordered that the prescription not be refilled. The Bentyl relaxed his stomach, and, at least for a small period of time, eased his pain. However, after a short period without pain, the pain began to recur and worsened once the medication ran out. Elmore filed a number of inmate request forms, but these forms never made it into Elmore‘s medical file and were apparently lost or not acted upon.
During this period, on November 27 and December 1, Elmore wrote inmate request forms to Dr. Foley begging him for medication to relieve the pain. On November 27, Elmore filled out an inmate request form, indicating that his stomach pains and nausea “are getting severe.” In block letters, he pleaded, “NEED MEDICATION AGAIN!!” When Dr. Foley did not respond, Elmore sent another request form to Dr. Foley on December 1, writing in large capital letters, “NEED HELP IN SEVERE PAIN!” During this time, Elmore was having severe stomach cramps, muscle spasms, and was having trouble digesting food as well as vomiting. Dr. Foley examined Elmore for the third time on December 3, 1996. Dr. Foley, having been told of the pain that Elmore was experiencing, decided to
After being examined by Dr. Foley on December 3, Elmore continued to be in pain and experience other symptoms, yet had a difficult time even in obtaining the only medication that had been prescribed, his Bentyl medication. He filed several inmate request forms, pleading with nurse Wagner, Dr. Foley, and the other staff nurses to deliver the medication more than twice a day. Elmore continued to complain that he was experiencing pain, was unable to eat, and that the medication was not effective, noting on an inmate request form filed on December 29 that he was still having muscle spasms and gas and that the Bentyl was not as effective as it had been in the past in relaxing his stomach.
Dr. Foley did not examine Elmore again until January 9, 1997. Dr. Foley recognized that Elmore continued to suffer from pain, muscle spasms, continual vomiting, and was beginning to lose weight and that the Bentyl medication was not helping Elmore. Nevertheless, Dr. Foley continued Elmore‘s Bentyl medication and also prescribed Reglan, a medication used to promote the increased motion of
On January 21, 1997, Elmore submitted an inmate request form addressed to Dr. Foley, asking to see him and stating that “[m]edicine is not helping condition. Seems to be getting worse. Can‘t eat. In pain almost all the time! Already lost 15 lb. Weak from no nourishment.” Elmore also stated, “I feel like I‘m dying.” Dr. Foley did not see or prescribe any other medication for pain or otherwise. One week later, on January 28, Elmore filed another request to see Dr. Foley, stating that his condition was getting yet worse. At this time, Elmore spoke to his daughter, McElligott, telling her that he thought he was dying and would not make it out of the jail alive. She attempted to contact the director and deputy director of the jail. She spoke with Larry Caskey, the deputy director of the jail, who told her that he “would stay on top of the situation.” Larry Caskey also called nurse Wagner, telling her to look into Elmore‘s care. However, it does not appear that nurse Wagner ever did so.
On that same day, January 28, Dr. Foley once again examined Elmore. Although Elmore had not been eating solid foods for some time, causing him to lose a significant amount of weight, Dr. Foley did not order any further examinations, choosing again to continue to wait until the VA hospital records
On February 2, a correctional officer brought Elmore into the medical department, where he was examined by nurse Parsons. She noted in the records that he was vomiting and that he was pale and thin. His weight was down to 128 pounds and Dr. Foley testified that, at this point, it was apparent that Elmore‘s condition had deteriorated considerably. On the next day, nurse Barrow noted that Elmore could not even tolerate liquids. On February 4, McElligott spoke with Okaloosa County Commissioner Bill Harrison. Shortly after they spoke, the Director of the jail, Bill Curry, informed her that Dr. Foley had been paged and directed to see Elmore. The jail staff beeped Dr. Foley, advising him that “administration would like you to see Mr. Elmore today.” Foley ordered blood and urine work to be performed on Elmore before his arrival at the jail. At this time, the jail had received the VA records. Dr. Foley saw that Elmore was in severe pain, was likely dehydrated, was not eating, had lost almost twenty pounds in two months, and had a possible diagnosis of cancer. Dr. Foley, however, did not give
On February 10, after receiving the results of the testing, which indicated an intestinal obstruction, Elmore was hospitalized at the North Okaloosa Medical Center. Weak and emaciated, Elmore was given demerol for pain. That same day, nurse Wagner estimated that the cost of hospitalization would be approximately $8,000-15,000 or higher. The next day, Elmore was prematurely released from the jail and was discharged from the hospital without diagnosis two days later. Several days later, he was admitted to the VA Hospital in Atlanta and was diagnosed with terminal cancer.
On June 18, 1997, Elmore filed this action alleging that the County, Dr. Foley, and nurse Wagner had acted with deliberate indifference to Elmore‘s serious medical needs in violation of the
DISCUSSION
In reviewing the district court‘s grant of summary judgment, we “must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.” Conn v. Gabbert, 119 S. Ct. 1292, 1295 (1999); County of Sacramento v. Lewis, 118 S. Ct. 1708, 1714 n.5 (1998).
I
It is well settled that the “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the
In Estelle, the Supreme Court established the “deliberate indifference” standard. The meaning of that term was further clarified by the Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994), a case that considered its meaning with reference to a prison‘s duty to protect its inmates from violence at the hands of other inmates. In Farmer, the Court held that “a prison official cannot be found liable under the
Our cases have given substance to Estelle‘s distinction between “deliberate indifference” and mere negligence, explicating categories of action or inaction that may constitute deliberate indifference. We have repeatedly found that “an official acts with deliberate indifference when he or she knows that an inmate is in serious need of medical care, but he fails or refuses to obtain medical treatment for the inmate.” Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 (11th Cir. 1997);
II
McElligott argues that there was sufficient evidence in the summary judgment record to show that Dr. Foley and nurse Wagner, despite knowing of a substantial risk of harm to Elmore, were deliberately indifferent to Elmore‘s serious medical needs.2 We agree.
There was sufficient evidence in the summary judgment record to show that defendants acted with deliberate indifference as that term as been defined in Farmer and our cases. First, as detailed above, there can be little question that there was sufficient evidence to permit a jury to infer that the defendants in this case knew of a substantial risk of harm to Elmore. Second, there was sufficient evidence to permit a jury to draw the conclusion that Dr. Foley and Wagner were not merely negligent in the care that they provided Elmore, but knowingly provided grossly inadequate, and at times no care to Elmore.
The record in this case permits a jury to infer that Dr. Foley and nurse Wagner were aware of a substantial risk of harm to Elmore. Although Dr. Foley did not diagnose Elmore‘s condition as cancer and did not know that he had cancer, a jury could find that Dr. Foley and Wagner were aware of the tremendous
The closer question in this case is whether the evidence in the summary judgment record would permit a jury to conclude that the care received by Elmore was so inadequate that defendants violated the
A core principle of
Our cases, too, have recognized that prison officials may violate the
In light of these principles and the summary judgment record, the district court erred in finding that the facts, viewed in the light most favorable to the plaintiff, did not establish deliberate indifference to Elmore‘s serious medical needs. Despite the repeated complaints about the pain he was suffering from, a jury could find that Dr. Foley and nurse Wagner basically did nothing to alleviate that pain, essentially letting Elmore suffer even as his condition was deteriorating. Other than tylenol and pepto-bismol, the main medication Elmore received was an anti-gas medication, Bentyl.4 Insofar as Elmore‘s pain was concerned, a jury could
Despite Elmore‘s condition, a jury could conclude that, rather than try to diagnose and treat Elmore‘s worsening condition, the defendants knowingly took an “easier but less efficacious course of treatment,” Waldrop, 871 F.2d at 1035, reflecting their deliberate indifference to the pain and suffering he was
A similar situation was present in Carswell v. Bay County, 854 F.2d 454 (11th Cir. 1988). In Carswell, the plaintiff made a series of requests for medical care and attention. Although the medical staff diagnosed and provided some medication to the plaintiff, we nonetheless affirmed a jury verdict for the plaintiff, explaining that, because plaintiff‘s condition worsened and the jail medical staff
We reject Dr. Foley‘s argument that summary judgment was appropriate because Dr. Foley provided medical care to Elmore. “It is . . . true that when a prison inmate has received medical care, courts hesitate to find a
This case is quite different than Adams v. Poag, 61 F.3d 1537 (11th Cir. 1995), and Howell, the cases on which Dr. Foley primarily relies. In Adams, we held that the plaintiff‘s part-time jail physician was not deliberately indifferent. We held that plaintiff‘s claim – that the physician “did not diligently pursue alternative means of treating [plaintiff‘s] condition” – “did not ‘rise beyond negligence to the refusal to treat as outlined by Estelle.‘” Adams, 61 F.3d at 1546 (quoting Howell, 922 F.2d at 721). Likewise, in Howell, we found that plaintiff‘s allegations did not rise above the level of negligence. The plaintiff in Howell did not argue that the treatment provided by the defendant was inappropriate, but that the defendant should have known that plaintiff‘s condition could deteriorate and, consequently, should have monitored the plaintiff closely. We rejected this argument, explaining that
none of the . . . allegations meet the criteria for reasonable knowledge or deliberate indifference. We acknowledge that . . . [the defendant] could have committed malpractice. He left the hospital when the patient was receiving treatment for a serious illness, and he was unavailable during the day when needed. He also may not have diligently pursued alternatate treatment at another hospital and may
not have prescribed further treatment soon enough. Yet none of these allegations rise beyond negligence to the level of a refusal to treat . . . .
Howell, 922 F.2d at 721. Further, the plaintiff‘s medical testimony did not “state that [defendant‘s] actions were grossly inadequate, but only that they deviated from established standards,” id. at 722, reinforcing the notion that the claim was only one of mere negligence.
The crucial difference between this case and Howell is that here plaintiff does not allege that the defendant should have known that deterioration of plaintiff‘s condition was possible, but that the defendant was aware that plaintiff‘s condition was, in fact, deteriorating, and still did nothing to treat this deteriorating state. This makes the case more akin to Carswell and distinguishable from Howell. Further, unlike Adams and Howell, this case does not involve a claim that different treatment should have been provided, which is tantamount to a medical judgment call, but that the treatment provided was grossly inadequate, amounting to no treatment at all.
Accordingly, because there was sufficient evidence to support an
Foley contends that, notwithstanding any constitutional violation, he is entitled to qualified immunity. In response, McElligot argues that the recent Supreme Court case of Richardson v. McKnight, 521 U.S. 399 (1997), precludes Foley and Wagner from raising qualified immunity as a defense. We need not resolve the question of Richardson‘s applicability to the instant case, however, because we find the
Qualified immunity is a guarantee of fair warning. Under the doctrine of qualified immunity, a government official sued for damages for injuries arising out of the performance of discretionary functions must be “shown to have violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Conn, 119 S. Ct. at 1295 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As the Supreme Court has explained, “qualified immunity seeks to ensure that defendants ‘reasonably can anticipate when their conduct may give rise to liability,’ by attaching liability only if ‘[t]he contours of the right
This standard has been met in this case. Well before the actions here, we established the
Our circuit precedent makes clear that no more is required to strip Dr. Foley and Wagner of the qualified immunity protections they might otherwise enjoy.9 In Greason v. Kemp, 891 F.2d 829 (11th Cir. 1990), we said that “one simply cannot say that a prisoner has a clearly established right to adequate psychiatric care but that that right is not violated by a particular treatment amounting to grossly inadequate care unless some prior court has expressly so held on ‘materially similar’ facts. Such an approach would add an unwarranted degree of rigidity to the law of qualified immunity.” Id. at 834 n.10. See also Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994) (“‘A finding of deliberate indifference necessarily precludes a finding of qualified immunity; prison officials who deliberately ignore the serious medical needs of inmates cannot claim that it was not apparent to a reasonable person that such actions violated the law.‘“) (quoting Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992) (emphasis in original)).