Sheila McCULLUM, Individually and as Administratrix of the Estate of Timothy Hughes, Plaintiff-Appellee, v. Kenneth TEPE, Defendant-Appellant, Butler County, Ohio; Butler County Board of Commissioners; Richard K. Jones; Leah Johnson; Theresa Dietz, Sergeant; Jane or John Doe # 1; William Rogers; Resolutions Community Solutions, Inc.; Community Behavioral Health, Inc., Defendants.
No. 11-3424
United States Court of Appeals, Sixth Circuit
Argued: July 24, 2012. Decided and Filed: Aug. 28, 2012.
693 F.3d 696
ARGUED: David C. Calderhead, Calderhead, Lockemeyer & Peschke Law Office, Milford, Ohio, for Appellant. Jennifer L. Branch, Gerhardstein & Branch Co. LPA, Cincinnati, Ohio, for Appellee. ON BRIEF: David C. Calderhead, Joshua F. DeBra, Joel L. Peschke, Calderhead, Lockemeyer & Peschke Law Office, Milford, Ohio, for Appellant. Jennifer L. Branch, Alphonse A. Gerhardstein, Gerhardstein & Branch Co. LPA, Cincinnati, Ohio, for Appellee.
Before: BOGGS, GILMAN, and DONALD, Circuit Judges.
OPINION
BOGGS, Circuit Judge.
Timothy Hughes died after hanging himself from his bed in the Butler County Prison. Hughes showed no outward signs that he was suicidal, but he did have a history of depression and asked to see Dr. Kenneth Tepe, the prison psychiatrist, about anti-depression medication. Hughes and Dr. Tepe never met. Hughes‘s mother filed this
I
Hughes, incarcerated in the Butler County Prison on charges of robbery, contributing to the delinquency of a minor, and abuse of the drugs cocaine and Concerta (a drug similar to Ritalin), hanged himself with a bed sheet. He died the next day from his injuries. Sheila McCullum, Hughes‘s mother, sued, seeking damages against Tepe, inter alia.1
Tepe had provided psychiatric services to inmates of the Butler County Prison for approximately ten years. Until 2005, the County paid Tepe directly. At the time of Hughes‘s suicide, however, Tepe worked for Community Behavioral Health, a non-profit entity that provides crisis counseling, mental-health screening and mental-health assessments for Butler County Prison inmates. The Prison‘s psychiatric-services program, which Tepe designed, had two steps. First, a social worker would conduct “triage,” deciding which inmates Tepe should see. Then, if the social worker so recommended, the inmate would meet with Tepe in person. Tepe spent
Hughes arrived at the Prison on March 14, 2007. He told the officer booking him that he had attempted suicide within the last year and that, in the past, he had been hospitalized for suicidal ideation. Hughes, however, also told the officer that he was not currently contemplating suicide. In response, a prison social worker put a suicide alert for Hughes in the Prison‘s computer system. Ten days later, on March 24, a paramedic conducting a routine medical screening noted that Hughes had a history of depression and that he had not taken Seroquel, his prescribed medication, in over a year. She therefore declined to approve Hughes for a food-service job. Nevertheless, the paramedic wrote that Hughes had “no medical complaints at this time” and decided not to refer him to a doctor.
On the same day, Hughes filled out an “inmate service request,” asking to “talk to Dr. Tepe about geting [sic] back on my Depression and bipolar meds.” Hughes elaborated: “I didn‘t relize [sic] that when I took my selfe [sic] of [sic] I didn‘t need them. But now I know I think I need them again.” Social worker Leah Johnson2 reviewed Hughes‘s request on March 27 and spoke to Hughes in person. During their conversation, Hughes was “comfortable [and] jovial” and “joked with [Johnson].”3 According to Johnson‘s contemporaneous report,4 Hughes explained that he had not taken his medication for more than a year, opting instead to medicate himself with marijuana, alcohol, and cocaine. Johnson‘s report also noted that Hughes did not display any psychosis and denied having any suicidal ideation. Johnson declined Hughes‘s request to see Tepe.
A number of family members visited Hughes in the days that followed. None believed that he was suicidal. On April 6, Hughes had an altercation with his cellmate. He filed charges against the cellmate, and charges were filed against him. In the aftermath of this incident, Hughes met with a sergeant. During that meeting, Hughes denied that he was thinking about committing, or planning to commit, suicide.
The sergeant put Hughes in an isolation cell where, late in the evening, he wrote letters to family members. Hughes‘s first letter, addressed to his father, expressed anger at being “put in the hole” because his cell-mate hit him. “Wats [sic] fucked up the most,” Hughes wrote, “is I dident [sic] even set to hit [him] back and they still put me in the hole this is bull shit.” Hughes concluded by writing: “I love and miss you so much ... P.S. write back and send pictures please.” The second letter that Hughes wrote was to his mother. He asked that she “get that lawyer now” because of the fight, and again expressed
The next day, Hughes hanged himself from the side of his bunk with a bedsheet. He died the following day, April 8, in the hospital. Hughes did not leave a suicide note. Nor did he ever see Tepe.
McCullum, Hughes‘s mother, filed this
II
The issue in this appeal is whether Tepe, a physician employed by an independent non-profit organization, but work-
A
In Richardson, the Supreme Court held that privately employed prison guards could not assert qualified immunity. The
Soon after Richardson, the Eleventh Circuit decided that a prison physician working for a private company could not assert qualified immunity against a
We cited both Hinson and Jensen with approval in our published Harrison opinion, relying on both for the conclusion “that there is no ‘firmly rooted’ common law practice of extending immunity to private [nurses working at a county jail].” 539 F.3d at 522. Likewise, our unpublished opinion in Cook v. Martin, 148 Fed. Appx. 327, 340-41 (6th Cir. 2005), relied on Hinson and Jensen to bolster its conclusion that there was no firmly rooted tradition of immunity at common law for a private physician‘s assistant working in a public jail.
After Filarsky, however, Hinson and Jensen‘s historical analyses—which rested on Twentieth Century law—are suspect, at best. Filarsky, 132 S. Ct. at 1660, addressed the question whether an attorney
With this in mind, we consider whether a private doctor working for a state institution would have been immune from a suit for damages at common law.10 In England, “mala praxis [was] a great misdemesnor [sic] and offence at common law, whether it be for curiosity and experiment or by neglect; 11 because it breaks the trust which the party had placed in his
The first reported American medical-malpractice case appears to be Cross v. Guthery, 2 Root 90, 1794 WL 198 (Conn. Super. 1794). There, a man retained a doctor to perform surgery on a tumor in his wife‘s breast. The doctor “promised to perform [the] operation with skill and safety to the wife of the plaintiff,” but instead “performed said operation in the most unskillful, ignorant and cruel manner, contrary to all the well-known rules and principles of practice in such cases; and ... after said operation, the plaintiff‘s wife languished for about three hours and then died of the wound given by the hand of the defendant.” Id. at *1. The plaintiff recovered forty pounds for the loss “of the service, company and consortship of his said wife.” Ibid. Although the doctor defended vigorously, he did not argue that he was immune from damages because he was a doctor.
But the doctor in Cross was a private doctor working for a private client. Tepe was a private doctor working for a public institution. Hence, the question: even if doctors generally had no immunity at common law, what of a private doctor who, like Tepe, worked for the government? There is little directly applicable case law. But the precedents that do exist point in one direction: there was no special immunity for a doctor working for the state.
In Landon v. Humphrey, 9 Conn. 209, 1832 WL 76, at *1 (Conn. June 1832), a doctor contracted with the town of Salisbury to vaccinate residents against “small or kine pox.” The doctor, or his agent,12 “so unfaithfully, unskillfully and ignorantly treated the plaintiff, that he cut a tendon, cord, ligament and nerve of the plaintiff‘s arm and inoculated her in an improper, unusual and dangerous place on her arm.” Id. The plaintiff won damages at trial, and the Supreme Court of Errors of Connecticut affirmed. The defendant raised a number of objections, but neither he nor the court mentioned immunity. Similarly, the Kentucky Court of Appeals—Kentucky‘s highest court until 1976—affirmed a money judgment against a doctor, hired “at the instance of a neighboring justice of the peace, acting for the county ... [and] under instructions to give his patient all necessary attention, but not to run the county to unnecessary expense.” Williams v. Nally, 45 S.W. 874, 874 (Ky. Ct. App. 1898). The doctor had treated a man with a broken leg, but “because the wound was unskillfully attended to ... gangrene set up in the foot of the patient, and amputation of his leg became necessary.” Ibid. The doctor defended by arguing that a number of jurors were biased and that the plaintiff was responsible for the gangrene because he failed to follow instructions. But neither the doctor nor the court mentioned immunity.
Last is DuBois v. Decker, 130 N.Y. 325, 29 N.E. 313 (1891). There, a man undertook to jump onto an engine of the Ulster and Delaware railroad, in the city of Kingston, and in doing so slipped, and his left foot was caught by a tender and a portion thereof crushed. Being destitute, he was taken to the city almshouse, where he was treated by ... one of the city physicians having the care of the patients therein.... Thereafter ... [the physician] amputated the plaintiff‘s leg above the ankle joint, and six or seven days thereafter, gangrene having set in, he again amputated the leg at the knee joint. After the second amputation the leg did not properly heal, but became a running sore, and at the time of the trial the bone protruded some three or four inches. Id. at 314. The physician defended on a variety of grounds, including the principle that a doctor could not be liable for an error in judgment, the lower court‘s decision not to issue a favorable jury instruction, ibid., and a number of evidentiary decisions at trial, id. at 315. The doctor also asserted that, because he “treated the plaintiff gratuitously, he is liable, if at all, only for gross negligence; which was refused.” Ibid. The court responded:
It has been held that the fact that a physician or surgeon renders services gratuitously does not affect his duty to exercise reasonable and ordinary care, skill and diligence.
But we do not deem it necessary to consider or determine this question for it appears that the plaintiff‘s services were not gratuitously rendered. He was employed by the city as one of the physicians to attend and treat the patients that should be sent to the alms-
house. The fact that he was paid by the city instead of the plaintiff did not relieve him from the duty to exercise ordinary care and skill. Ibid. (emphasis added).
This last sentence is suggestive. The doctor in DuBois would have had a stronger claim to immunity than Tepe: the city, not a private company, paid his wage. Still, the doctor did not raise, and the court did not mention, immunity. Rather, the court held that, regardless of who paid the doctor, the standard of care was the same, and affirmed a money judgment in favor of the plaintiff.
These cases, as well as the American and English cases involving private physicians in private practice, and the absence of any indicia that a paid physician (whether remunerated from the public or private fisc) would have been immune from suit at common law, convince us that there was no common-law tradition of immunity for a private doctor working for a public institution at the time that Congress passed
B
The policy element of our analysis hinges on three of
We acknowledge that it is somewhat odd for a government actor to lose the right to assert qualified immunity, not because his job changed, but because a private entity, rather than the government, issued his paycheck. But just as market pressures, a private firm‘s ability to “offset any increased employee liability risk with higher pay or extra benefits,” ibid., the “continual ... need for deterring constitutional violations[,] and ... [the] sense that the [private] firm‘s tasks are not enormously different in respect to their importance from various other publicly important tasks carried out by private firms,” id. at 412, vitiated any policy-based concerns in Richardson, these same factors suggest that immunity would be inappropriate here. And, even if we could create an immunity not recognized at common law based on policy alone, see supra note 7, we would not do so here.
III
Despite the Supreme Court‘s somewhat cryptic comment in Richardson that a doctor may have had immunity from damages at common law, there does not appear to be any history of immunity for a private doctor working for the government, and the policies that animate our qualified-immunity cases do not justify our creating an immunity unknown to the common law. Thus, although we express no opinion on the ultimate validity of McCullum‘s claims, we AFFIRM the district court‘s conclusion that Tepe is not entitled to assert qualified immunity.