*1 CONCLUSION III. reasons, AFFIRM we foregoing
For the AF-We sentence. conviction
Hodge’s conviction, VA- Anderson’s
FIRM sentence, REMAND CATE pursuant resentencing court for
district
our instructions. Gross, STEWART; Stewart Pearl
Bessie
individually and as administratrix Stewart; Edward Eugene
the estate Reed; Stewart; Henrietta Stewart; Eu Kelly Stewart; E.
Paul Plaintiffs-Appel Jr., Stewart, gene
lants, Rich Hargett; MURPHY; Ed Russell; Stanley Dr.; Knutson, ard Dr., Dial, De Dr.; John Myung
fendants-Appellees. 98-60083.
No. Appeals, Court States
United
Fifth Circuit. 27, 1999.
April
Frank Silvestri, A. Massicot, John Paul Massicot, & Silvestri Orleans, LA, New Plaintiffs-Appellants.
John Clay, Special Lewis Assistant At- General, torney Jackson, MS, Leonard Vincent, Charlton Mississippi Department Corrections, Parchman, MS, for Defen- dants-Appellees. pleads official public “When GARZA, stated: G. REYNALDO Before immunity qualified defense affirmative BARKSDALE, Circuit
POLITZ may, answer, court the district in his Judges. own, require its onor motion the official’s BARKSDALE, HAWKINS RHESA *3 defense to that reply plaintiff to the Judge: Circuit Putnal, F.3d 75 Baker v. See also detail”. arising Cir.1996). (5th action § 190, 195 1983 42 U.S.C. this For Stewart, an Eugene death of the out motion, the denied court district The Department Mississippi the in inmate com- and amended original that the ruling challenge (MDOC), Appellants Corrections and specific”; “fact plaints claiming summary judgment, adverse an obtained can be clarification “[a]ny further whether, viola- in for issues fact material do Appellees discovery”. through Amendment, three Eighth the tion although appeal, ruling on challenge this med- and the treating physicians Appellants’ to assert they continue hospital were at the director ical Eighth plead complaint failed medi- serious to his deliberately indifferent sufficiently. claim Amendment AF-We needs, in his death. resulting cal moved, 1997, Appellees December FIRM. 12(b)(6), to dis- to Fed.R.Civ.P. pursuant a to state failure complaint the miss I. magis- result, the although aAs claim. the centers action This specificity questioned judge then trate until 1994 Stewart, August provided that, year in noted complaint, later, for decubitus months four death filed, “somewhat been it had since bedsores), as known (commonly ulcers complaint] [in allegations inadequate Appel- death. caused his ultimately which by considerably out fleshed now been have court district claims in made also lants in the interest Accordingly, discovery”. Har- and Murphy officials MDOC against considered judge magistrate efficiency, the brief, as Appellants’ in As indicated gett. discovery through developed the evidence oral at their counsel conceded as well one sum- as motion and treated abandoned have Appellants argument, striking than rather mary judgment, and two officials these against claims their re- Appellants requiring complaint and judgment summary contest file. Russell, Knutson, Drs. awarded Appel- judge held magistrate The Dial. subjective requisite failed to show lants in November this action filed Appellants indifference deliberate knowledge and against § claims 1996, 1983 presenting that, although Appel- noted He Appellees. Knutson and Drs. officials MDOC two “there negligence, shown may have lants the case parties consented Russell. deliberate- [Stewart] no evidence Af- judge. magistrate to a being referred the defen- or that maltreated ly ignored added discovery, Appellants conducting ter mali- wrongs or willful committed dants Dial as defendants. Kim and Drs. Therefore, action was acts”. cious immu- answer, raised Appellees In their prejudice. dismissed sovereign defenses, including nity Ap- Contending that immunity. qualified II. Appel- specificity, lacked pleading pellants’ require court the district moved lees A. immunity response to specific more state for failure dismiss motion this motion based Appellees defenses. as treated one properly a claim Wood, 1433 47 F.3d Schultea Fed.R.CivP. See summary judgment. court (en banc), Cir.1995)
533 12(b) (“If, 12(b)(6) dismiss], Inc., Liberty [on motion Anderson v. Lobby, 477 U.S. 242, 248, presented 106 91 pleading matters outside the S.Ct. L.Ed.2d 202 (1986). court, A to and not excluded material fact issue “if exists evidence motion shall be treated as one for sum is such jury reasonable judgment disposed of return mary provid could a verdict for the nonmoving added)); Id.; (emphasis party”. Capital ed Rule 56” Carter see Concepts Proper Stanton, 669, 671, First, Inc., 92 ties 85-1 v. U.S. S.Ct. Mutual (1972); Baker, Cir.1994). “However, L.Ed.2d ‘[t]he (“... F.3d where mere of a a district court existence scintilla of evidence grants styled support.of plaintiffs a motion position as motion will be preclude insufficient ruling summary [to dismiss bases its on facts devel judg *4 ment]; oped pleadings, outside review the there must the we be evidence on which summary judg jury reasonably order an order the granting as could find for the ” ment”). Appellees plaintiff.’ do v. not claim error Doe Dallas Indep. Sch. 12(b)(6) Dist., (5th 211, Cir.1998) being their Rule motion as 153 treated F.3d 215 Anderson, fact, 252, summary they (quoting one for In judgment. 477 at U.S. 106 2505) (alteration that, agree S.Ct. “considering posture original). plethora pleadings discovery court],
and evidence before the [district properly [their dismiss] motion to con §The 1983 claim at hand charges viola by court] sidered under the [district rights tion of Stewart’s Eighth under the summary judgment standard”. Amendment to the United States Constitu tion: bail “Excessive shall not be required,
B.
imposed,
nor excessive fines
nor cruel and
punishments
course,
unusual
inflicted”. Of
a summary judgment
We review
de
not,
by
Amendment does
its precise
novo, applying the same standard
words,
a
mandate
certain level of medical
E.g.,
used
the district court.
v.
Melton
prisoners.
hand,
care for
On the other
Ins. Annuity
Teachers
&
Ass’n Amer
punishments”
“cruel and unusual
clause
ica,
(5th Cir.1997).
557,
114 F.3d
559
Un
interpreted
has been
provi
mandate the
56,
judgment
der Rule
such
appropriate
is
E.g.,
sion of medical care to them.
Farm
depositions,
“if
pleadings,
answers
Brennan,
825, 832,
er v.
511 U.S.
114 S.Ct.
file,
interrogatories, and
on
admissions
to
(1994) (“cruel
1970, 128
811
L.Ed.2d
affidavits,
gether
any,
with the
if
show that
punishments”
imposes duty
unusual
clause
genuine
there is no
issue as to
materi
prison
officials
“ensure that inmates
al
moving party
fact and that the
is enti
food,
shelter,
adequate
clothing,
receive
judgment
tled to a
as a matter of law”.
care”).
and medical
pleadings
56(c).
We view the
Fed.R.Civ.P.
summary
judgment evidence in the
line,
Along
inadequate
medical
light most
favorable
the nonmovant.
prison
a
doctor can
a
result
Melton,
treatment under the circumstances. See dyne, dressings ordered that Dimazana, 122 v. F.3d Norton changed daily, twice directed that (5th Cir.1997).1 repositioned every Stewart be hour. Addi charge by contrast to the the dissent tionally, periodically Dr. Knutson checked that not with provided Stewart was “even that get the wounds ordered Stewart most rudimentary medicinal func- periods of out of bed for extended time. tions”, Dr. Kim actively treated Stewart’s more, provided by Dr. Once the treatment that condition. evidence shows she Knutson, including to clean and orders ulcers, personally debrided the ordered reposition medicate the ulcers and Stew dressed, that the wounds be medicated and art, than “rudimentary”. was more and monitored Stewart’s nutritional levels. Further, although the dissent notes that Dr. Knutson testified that he often did notes, Dr. Kim with Dr. it Wright, consulted fails not read the nurses’ which indicated to mention that she took the additional had an from a cathe- Stewart infection records) Although only 1. the dissent states that Dr. Kim reviewed the medical reflects advice, "disregarded” deposi- Dr. prison hospital Kim’s note Dr. Kim Wright’s tion reflects she considered Dr. inadequate provide necessary advice, but chose to take another course of It for Stewart. is unclear how dissent noted, present treatment. As this does not came to attribute this to Dr. statement concerning requisite issue material fact affidavit, for in his Dr. Rothschild refers deliberate indifference. physician”, to “the without statement one further identification. The dissent states that affidavit of Dr. (an expert plaintiffs, Rothschild but who material fact issue concern-
ter, There is no not antibiotics.3 and he did understanding ing Dr. Russell’s during the did not see Stewart Knutson ap- treated being ulcers Stewart’s Thanksgiving holiday, and day four Dr. was aware propriately. Russell that Stewart was records indicate but did not Wright, with Dr. consultation during that time. seen not concerning Kim Dr. up with Dr. follow on 28 Dr. Knutson next saw Stewart Again, there Wright’s recommendations. 1994; doctor, Stewart November no material fact issue as deliberate going die”. “appeared like was indifference.5 at treat attempted Knutson facility, ultimately transferred Mississippi Medi- University him to the argument, Appellants’ coun At oral (UMC) on 30 November 1994. cal Center referred evidence that repeatedly sel consistently not follow doc the nurses did attending physician who admitted regarding treat tors’ orders Stewart’s had testified that Stewart UMC ment; equated counsel claimed had ever seen.4 worst bedsores she However, Appel indifference. deliberate 7on December 1994 from He died there and, nurses; sue the lants did not to the decubitus ulcers. sepsis, due course, may not be held liable theory § did not transfer Stewart Knutson 1983 violations under liability, therapy, respondent superior or or vicarious facility physical another notes, the nurs upon anti- claimed omissions the nurses’ administer based read Servs., Dept. v. Social worst, E.g., es. Monell at Again, these actions biotics. 658, 692, 98 436 U.S. S.Ct. requi- might negligence, constitute (1978); Cook, L.Ed.2d 611 Simmons indifference. site deliberate (no (5th Cir.1998) respondent F.3d 1983); § Eason v. superior liability under d. Cir.1996); Thaler, 73 F.3d Russell, the medical director Justice, Dept. Pierce v. Texas Criminal Parehman, Cir.1994) (no treat one 1146, 1150 vicar His limited contact with ing physicians. 1983); liability Thompson § under ious *7 Cir.1983) during Steele, grand occurred rounds. 709 F.2d § that he not in (“Certainly give Dr. Russell testified was 1983 does not a cause of having diffi conduct of subord that the nurses were action based on the formed inates”).6 culty Dr. Kim’s orders. following physical therapy sepsis and would that Dr. Knutson was whether 3. dissent maintains deliberately "helpful to Stewart’s medical At no indifferent have been advisable”. failing to for the needs in antibiotics during deposition state time her does she that However, Dr. Knutson catheter infection. physical of antibiotics and combination that he did not read the nurses' notes testified prevented Stewart’s therapy have would possible he was unaware of the in- that death. Further, symptoms. Dr. Knutson tes- fection symptoms tified that the noted the nurses holding 5. Because it does not contest our odor) (pus necessarily not and a foul were Russell, presume regard Dr. we the with Thus, symptomatic anof infection. without agrees portion majori- with of dissent this the that Dr. Knutson knew Stewart had evidence ty opinion. it, deliberately disregarded an infection presented. fact material issue is not does not assert that the doctors 6. The dissent the vicariously for the actions of liable deposition, Schlessinger, the at- 4. In her Dr. however, assert, nurses, per It does that se. tending physician at UMC who admitted the not be Stewart, the doctors knew that nurses would affirmatively questions answered carry out the orders. Howev- able to doctors' the lack antibiotics from Novem- whether of er, present a record does not material fact the ber 13 until Stewart admitted UMC spread point. of Dr. Dial testified to the the issue on this could have contributed subjected or 3. acts omissions Stewart to harm, yet responded excessive risk of that cumu Appellants contend the the with risk deliberate indifference.8 by Appel- acts of negligence lative claimed probative There is no evidence that fact lees is sufficient raise material denied, delayed, doctors substantially or To the issue for deliberate indifference. intentionally interfered with Stewart’s subjective each de contrary, defendant’s treatment. McHugh, Hudson v. Cf. indifference, non, ex liberate vel must be Cir.1998) (jail F.3d 863-64 offi- separately. Hen amined See Sellers v. anything cers’ and nurse’s refusal to do (7th Cir.1994) man, 1102-03 prisoner’s about repeated requests epi- (“The only significance multiple of acts of lepsy medicine despite knowing he not did they is that negligence may evidence have his medicine constituted deliberate magnitude risk created need). indifference to serious medical knowledge defendants’ conduct and the actively treated Stewart’s admit- defendants”).7 the risk tedly “Disagreement serious condition. record, Again, this the claimed inde- with medical treatment not state pendent negligence by physi- Eighth acts of each claim for Amendment indifference Norton, cian sufficient to raise a material to medical needs.” F.3d fact that each knew that his issue doctor deposition expected repeating would that he orders It bears Dr. Rothschild’s Although recognized opinion solely be carried out. Dr. Kim was based on his review of not, difficulty example, medical records. He did that the nurses sometimes had car- orders, depositions review the defendant doc- rying testimony out all her her Therefore, tors. his conclusion the facili- prob- perceive indicates that did not she ty "incapable unwilling” provide enough impede lem be Slew- serious as little, proper any, probative care is of if value. prison. Finally, art’s treatment at the line, Along "awaiting he additional expected Knutson testified he his orders documentation”, depositions; as such those out, be carried that he was not aware and, information, ”[u]pon receipt of that [he] having difficulty the nurses were fol- anticipate^] supplementing report”. lowing his orders. rendered, supplement, That if not in the record. disagreeing
7. We do not read the dissent event, upon passage re- relied proposition with the that Lhe actions flects Rothschild's that the individually, viewed doctors must be rather may cumulative of Stewart’s care have effect Rather, cumulatively. than dis- dissent hastened his death. Rothschild does agrees only reasoning regarding our identify any particular by any actions individual acts of doctors. doctors that constituted deliberate indiffer- ence; instead, speaks "indifference repeatedly The dissent doc- asserts part authority (Emphasis of those in *8 have tors denied Stewart care would noted, added.) As we do not hold that there only saved his life. The in the rec- evidence negligent potentially is no of care. evidence point ord is the earlier-referenced Rather, there is evidence that creates a no Rothschild, expert of affidavit for material fact issue whether doctors plaintiffs. summarizing After his review grave knew of condition and were Stewart’s records, Dr. Stewart’s medical Rothschild deliberately to it. indifferent my "It is states: events Furthermore, contrary in to the assertion ultimately began led to Mr. Stewart’s demise facility the dissent that a transfer to another August if in not earlier and that the life, would saved have Stewart’s Roths- at records Parchman demonstrate opine child’s not that Stewart affidavit does facility incapable medically was or un- a would have lived if he had been treated at willing properly care for his condition. (based facility re- different on the doctor's opinion, my records, in indif- Such care amounts to an viewing this is authority part ference those in suprising); and we have found no other evi- death, necessary prevent take the action i.e., slaLing dence that Stewart in record timely to evaluate him in a manner and would lived the treat- have had received facility deliberately transfer him to a he could re- where ment tire dissent maintains was added.) necessary (Emphasis ceive the care.” denied him. rendered merely erate indifference claim has been
At evidence was color- most the impenetrable. respectfully I virtually dis- the critical issue of whether able on sent, majori- I cannot subscribe to the amounted to deliberate as doctors’ conduct amendment, eighth effec- ty’s the treatment of Stewart’s view the indifference to protections for its Summary judgment tively rendering vaunted decubitus ulcers. physicians proper, empty promise. was be Appellee no for trial unless cause “there is issue As an and uncontested view unsariitized favoring the is sufficient evidence there demonstrates, appel- fully of the evidence to return a nonmoving party jury lees—starkly aware of Stewart’s dire con- Anderson, party”. for that verdict him that could dition—denied treatment 249, 106 at S.Ct. 2505. U.S. providing have saved his life. Without rudimentary of medicinal even the most C. functions,1 appellees averted their heads Appellants’ state law As slowly painfully died. claims, summary judgment proper, was but that question There is no Kim, Sparks pursuant So.2d 1113 from ill health when he incar- suffered (Miss.1997), prison physi held that that his health cerated wors- qualified immunity protected by cians it throughout 1994. But was after decisions, ened unless for medical prison hospital, he was stay where “they wrongs commit willful malicious during neither moved nor bathed five- Hudson acts”. See id. (quoting at 1116-17 Rausa, (Miss.1984)). period, drastically condition day that his So.2d what one supra, Through that the deteriorated. As shown fact treat “[t]he observation,”2 inadequate severity for the of has called “a total lack of ment was Dial, physician, treating not indicate that the Dr. Stewart’s condition does [the] ‘willful wounds. question committed overlooked skin Id. at 1117.9 wrongs Though clearly acts’”. the nurses’ stated *9 or to appellees guilty If firm that orders were followed gence. these his treatment was than a bit of innocuous medi- check to see whether the nothing more malpractice, cal then the barrier to delib- effective. "rudimentary.” Though majority plaintiffs
9. The dissent does not address the than Thus, characterization, presume state claims. we that it law understandably dislikes this joins majority opinion on issue. speak the facts for themselves. that, majority whatever the level 1. The insists 2. See at 534. infra received, was of treatment Stewart it more When Stewart pris- was returned to putrid his whose infections disgusted them. unit, on gave aoff foul body odor and personnel Non-medical drew the task taking feared a bath. Because the wheel- cleaning and dressing Stewart’s wounds to chair-bound Stewart could not him- bathe the extent that such occurred. self, he rely was forced on cell-mate The necrotic tissue quantity so worsened who saw that both sides of hips Stewart’s that Dr. Kim consulted a surgeon, local bloody and raw and that his clothes Wright, who stressed stuck to need for body. Although inten- Stewart’s sive and vigorous cell-mate attempted physical wounds, therapy. clean the This Stewart’s wounds—which advice disregarded.4 was emitted fetid Fully aware that smell from prison and which hospital there substan- lacked personnel tial drainage and implement became facilities to Dr. Wright’s —worsened. delirious, feverish and lost ability recommendation, Dr. Kim made no effort control both his bladder and his bowel whatsoever transfer Stewart to a facility functions, and urinated and on defecated where he could have received this essential himself. Throughout period, physi- no care.5 cian saw Stewart. The signed cell-mate Instead, Dr. Kim referred Stewart Stewart in for call sick a number of times the care of another physician, Dr. but he was not then any examined by Knutson, who continued the regimen same personnel. medical already proven to totally be inadequate to After the passage two weeks Stewart arrest Stewart’s deepening infection. At finally was admitted the prison hospital this stage, Dr. Knutson fully aware by Dr. admission, Kim. On Dr. Kim noted arthritic, Stewart was incontinent, that Stewart had developed multiple decu- bed-ridden; his longstanding decubi- ulcers, bitus including a large ulcer with tus ulcers had alarmingly worsened; and necrotic tissue on his buttocks and one on he could no longer feed himself. The his foot. Examination of the ulcers re- nurses’ amber, notes charted foul-smelling vealed “very deep infection” and cultures urine yellow, foul-smelling pus from the ulcers indicated contamination by discharged from penis Stewart’s urine or and gath- feces. Dr. Kim ordered that ered around Stewart’s Stewart’s catheter. dressings Subse- cleaned and changed quently, alerted, the notes frequently and that reposi- he be blad- der every tioned became But, few hard turgid, hours. as Dr. Kim his urine aware, was fully became thick chronic and cloudy. The under- notes also staffing rendered repeated it documented extremely improbable complaints by Stew- that Stewart would art of a receive like sore throat and anything widespread pain. the treatment medically According to Stewart, deemed neces- the notes ap- who sary.3 The dilemma peared brought confused, by the was moaning and crying. dearth of staff was Dial, exacerbated because Like Dr. Dr. Knutson failed to review the nurses treating Stewart, avoided the nurses’ notes. 3. See infra majority insists that brushed aside his solely recommendation simply Kim did not understand the ground severi- that Stewart’s condition ty problem. record not bear enough "serious” something warrant out this inability by convenient physical basic as therapy. grasp the seriousness a situation in her orders cannot be followed. majority 5. The failing me faults to discuss in more detail the treatment Stewart did re Again, majority quibbles my termi- ceive Dr. Kim. There is no need me nology. The record care, reflects that Dr. Kim mention that majority as the already Wright's received Dr. advice—which assigns she her- weight more to that treatment than it procured self had refused to take can bear—the steps few *10 —but affirmative Dr. Kim steps implement to his recommendation. She took to treat Stewart woefully were deficient. ad- was he after week one Approximately on a four- left thereafter Dr. Knutson a toxic sepsis, from died mitted Stewart during holiday, Thanksgiving
day infection. from resulting condition saw other any nor he neither he returned Knutson Dr. When Stewart. truth. a sad facts reveal undisputed The he like “appeared Stewart that observed in lived Stewart three months For over conceding that While die.” going was slowly ap- pain, and discomfort agonizing urinary serious had a Stewart believed he three different least At death. proaching inexplicably Knutson infection,6 Dr. tract pain- prevented have could physicians Stew- any antibiotics. failed relatively sim- administering a ful death he eating; and was dehydrated was art and of treatment —antibiotics course ple multi- and had nonresponsive become had Instead, they looked therapy. physical Nonethe- lab values. abnormalities ple his away, literally rotted Stewart away as im- an against less, Knutson decided Dr. own in his body soaked his decaying, flesh days two delayed and transfer mediate at the blood, Even pus. urine, and feces, proper, ato transferring Stewart before appeared death when Stewart’s stage, final In the mean- facility. readily-available made was decision imminent, a conscious samples no blood took time, Knutson Dr. hospital ato his transfer postpone and levels nutrition Stewart’s determine days. crucial possibly two extent ascertain cultures no took mal- grossly was infection. his dismiss- this; majority all Despite severe. infection and nourished physi- that claim Stewart’s es to his deliberately indifferent cians were the transferee treating physician appel- needs based medical Stew- serious described Schlessinger, facility, Dr. “the that show failure to purported thusly: lants’ on arrival condition art’s delayed, substantially denied, would He very debilitated. He Stewart’s with interfered intentionally respond he did eyes, his open this find- my judgment, treatment.”7 dehy- very ... He was commands tes- Schlessinger Dr. reality. ignores ing stun- the most ... I think .... drated should physicians Stewart’s that tified dry and very that he was thing was ning they that antibiotics prescribed have ulcers.... huge decubitus he had that regime aggressive an have ordered should I reason patients lots I have —the reviewing fully therapy. After physical distinctly so Mr. Stewart remember records, appellants’ medical the sad had he say that I would Rothschild, Head expert medical having worse probably —Dr. distinction Department Geriatrics the Genetics seen ever I had ulcers decubitus University Medical State Louisiana at the with pressure sores had my He life. agreed New ... Center hips Orleans — [0]ne breakdowns.... conclusion Schlessinger’s ex- see You could really dramatic. acceptable below received fell [The tissue. bone, lots of necrotic posed Rothschild treatment.8 smelling. standard foul horrendously sores] af Rothschild’s majority dismisses 8. The did suggests Dr. Knutson majority because probative value lacking in fidavit suffering Stewart was not know doctors’ to review failed purportedly informs: deposition otherwise His infection. not) (but sup did planned depositions Q So, has] you [Stewart ad think of such upon review [Counsel]: affidavit plement gonna Perhaps Dr. Roths that’s urinary infection tract got a documentation. ditional declined give him depositions but you don't die reviewed him child make conclusions because modify affidavit antibiotics; correct? is that Dr. Roths But even if same. remained Correct. Knutson]: A [Dr. Stewart's nothing than other reviewed child R. 362. record, undermine does not of sum- purposes of his conclusions force Op. at 537. *11 find could no evidence that prison Stewart ever hospital, Dr. Rothschild sug- received appropriate treatment “necessary gested, to led his death.11 to deal with his life-threatening condi- In the evidence, face of this I cannot tion.”9 Rothschild, to Dr. According understand the majority’s conclusion that Dial overlooked Stewart’s condition and appellants failed to show knowledge on the enervated, released Stewart—-an seriously part physician each “that his [or her] ailing man—from the hospital only acts or subjected omissions Stewart to an through a “total lack of observation.” excessive risk of harm.”12 What the rec- Further, as Dr. observed, Rothschild hos- ord abundantly is a shows failure to under- pital records reflect an acknowledgment take even the most basic examination and by Dr. Kim “that Mr. Stewart cannot be treatment of a gravely ill patient before adequately treated at this facility because releasing him from the prison hospital; a there simply personnel not enough to failure to transfer him with full awareness provide the intensive care necessary to that the prison’s facility lacked the means treat him.” same The him; records note that to care for prescribe failure to condition sorely “severe.” A re- needed antibiotics. To ap- me it view of pears Stewart’s medical files painfully left Dr. apparent: if a physician Rothschild knows patient unable reconcile ur- will “[t]he not receive ade- gency quate adequate need unless he transferred, care ... with apparent fails to lack transfer him to available ... another facility, physician staff ... to carry patient out knows the [.physician’s] will not receive adequate orders.” care. Referring Analogous to Dr. state- Knutson’s fail- ments can. be ure to made of the physicians’ fail- despite evi- antibiotics — ure to examine and to prescribe dence of a urological antibiotics infection of which he to a critically ill patient suffering from aware —Dr. Rothschild remarked infection. upon the lack of any “indication proper
... management of this condition.” The The majority brushes aside appellees’ failure to a dying transfer Stewart out of multiple breaches simple observa- inary judgment. As a review of his physician resume who treated Stewart’s decubitus ul- confirms, Dr. Rothschild is an impressively during cers the relevant period time and who qualified physician. question The whether to admitted to an prison awareness that the hos- accept weight and the given pital was not equipped to care for Stewart. to it should be jury. If, reserved for however, physician than Dr. other Kim record, made the statement in the only Contrary 9. majority's assertion and as strengthens my argument doctors, not —two reflects, following discussion one, Dr. Roths- expressly recognized that Stewart would child's clearly affidavit identifies acts commit- prescribed receive the long treatment so ted Stewart’s individual physicians which as was at the facility. legally may be classified as "deliberate indif- instance, ference” —for the affidavit states 11. majority takes issue with this asser- that "one [acknowledged] that Mr. stated, however, tion. Dr. Rothschild Stewart [could be adequately not] treated at care Stewart received "amounts an indif- but, prison] facility,” [the despite this ac- part ference on the authority those in knowledgment, did transfer Stewart. The take death, necessary prevent action fact that Dr. Rothschild legal does not use the i.e., to timely evaluate him a manner and term "deliberate cataloguing indifference” in facility transfer to a him where he could re- such acts does not mean that he has failed to ceive necessary care.” identify factual situations legally amount to deliberate indifference. I read this statement to mean that in order death, prevent Stewart's it was necessary majority points out that Dr. appellees Roths- facility transfer Stewart to a child’s affidavit referred to an anonymous where he could receive appropriate care and physician, true, not Dr. Kim. This is but it is treatment. clear that Dr. Rothschild must have been re- ferring to Dr. since she is the Op. at 537.
542 accounta- held be cannot doctors that
tion Individually, and as TANNER, Frank staff. medical in the deficiencies ble Jenni Friend Best Next Father whether question the decisive begs This Daisy Tan Minor; Tanner, fer Renee in- staff prison their know who Tan Individually; Renee Jennifer ner, necessary administering capable Plaintiffs-Appellees, Minor, ner, eighth with the consistent treatment, may, patient a nothing while amendment, do v. of treat- want death unto languishes my judg- WESTBROOK, hospital. M.D. prison Wade ment H. a Defendants, understands al., who ment, a doctor et depends of survival only prospect patient’s not transfer, send Hospital-Desoto timely
upon Baptist Memorial cannot hospital, Corporation, available an patient to Inc., A Delaware failings by pointing liability Defendant-Appellant. escape majori- Contrary to the nursing staff. 97-60416. No. appel- characterize view, I would ty’s a mere to transfer refusal lees’ Appeals, Court States United appropriate as to “difference Fifth Circuit. circum- under of treatment method presumed No 27, stances.” April 1999. provided prison facilities suggest of treatment course alternative viable from ulcers decubitus advanced that rea- suffered; orders paper should implemented cannot
sonably accountability. no release
provide antibi- failure should
Nor re- infection raging aof the face otics judg- alternative a reasonable flect
ment. Farmer Gamble14 Estelle
Under delib- establishes prisoner Brennan15 showing that indifference erate disregarded] “kn[e]w[] official 16 If the health.” inmate risk to excessive do herein by appellants proven
facts standard, am forced I
satisfy evalu- majority’s under
conclusion will. ever scenario factual no
ation must dissent.
I therefore 1970, L.Ed.2d S.Ct. U.S. 15. 511 Op. at 535. 13. (1994). 50 L.Ed.2d 97 S.Ct U.S. 14. 114 S.Ct. Id. (1976). or malicious notes that Stewart was unable to move bladder, he incontinent of bowel and III. hospital. from the nonetheless released simply The record reflect Dr. Dial did not examine Stewart on the trumpeted by the dis- parade of horrors notations;' days the made these nor nurses But, it may, from it. that as sent—far discharg- did he review their notes before support there no material fact issue to ing day after Stewart left Stewart. requisite deliberate indifference neces- hospital, Dial received notification sary liability. Accordingly, judg- developed twenty-five that Stewart had Appellees is ment for ulcer—an stage centimeter IV decubitus AFFIRMED. bed extend- advanced-stage sore caused periods immobility—with necrosis ed POLITZ, Judge, dissenting: Circuit prescribed Dr. Dial over 95% its area. view, cleansing, dressing, a treatment of majority’s In the Stewart’s death antibiotics, was, worst, but he never bothered con- product negli- of mere