CASSEL, Judge.
Inmate J.S. appeals from a judgment granting money damages of $250,000 but denying injunctive relief against the State of Nebraska Department of Correctional Services (Department) for injuries resulting from an assault by other inmates, raising three issues. First, he asserts that the district court erred in finding that the health care provided by the Department at times met the community standard of care. Second, he argues the money damages were inadequate and failed to provide for the cost of future care. We find no clear error on these issues of fact. Finally, after de novo review, we affirm the court's denial of an injunction to mandate future care from private providers.
While in the Department's custody, J.S. sustained injuries on May 7, 2002, as a result of a physical and sexual assault by other inmates. Because the issues in this appeal concern J.S.' health treatment—both past and future—and the amount of damages awarded by the court, we need not detail the assault or the circumstances leading up to the assault.
After the State Tort Claims Board denied J.S.' claim, he filed a lawsuit. In J.S.' second amended and supplemental complaint, he alleged that the Department was negligent in failing to protect and house him and in failing to have the facility properly staffed so that an assault could not occur. J.S. alleged that the Department did not diagnose his resultant injuries in a timely and appropriate manner and that they have continually failed to provide him with the proper community standard of medical and mental health treatment. As a proximate cause of the Department's negligence, J.S. alleged that he suffered the following injuries: posttraumatic stress disorder (PTSD); physical injuries; past, present, and future pain and suffering; mental anguish and severe emotional distress; past, present, and future disability; past lost wages and loss of future earning capacity; past, present, and future inconvenience; and future medical expenses. J.S. further alleged that he incurred special damages of approximately $6,000 for past medical treatment of the above injuries. J.S. additionally alleged that he continued to suffer irreparable harm as a result of the Department's failure to provide proper medical treatment and that the Department should be required to allow him access to private medical and mental health treatment providers of his choice.
Trial commenced on July 27, 2009. J.S. testified that after the May 7, 2002, assault, he stayed in his cell to try to stop bleeding from his nose and rectum. His eye and upper right side of his head were "purpling." J.S. testified that he wrote a note to unit manager Salvador Antonio Cruz on the evening of May 7 stating that he had been beaten and raped, that he had injuries and needed to see a doctor, and that a rape kit needed to be completed. J.S. testified that he gave the note to a caseworker at 8 a.m. on May 8 to be delivered to Cruz. Cruz denied that J.S. informed him on May 8 that J.S. had been raped. Cruz recalled that J.S. had a black eye and that J.S. said his cellmate had beat him. A report stated that unit case manager Steven Chandler observed J.S. to have facial injuries on May 8 and that J.S. refused to say what happened. Unit case manager James Dunn testified that he observed J.S. with a black eye and asked him what occurred, but that J.S. did not say what had happened.
J.S. obtained a pass to go to Capt. Darlene Percival's office on May 8, 2002. J.S. testified that he removed a stocking cap and sunglasses—which he wore to "hide [his] wounds"—at Percival's request and that he left when Percival questioned him about who caused his injuries in another inmate's presence. J.S. was placed in a segregation unit. J.S. testified that on May 8, he wrote a "kite" to "medical" stating that he was experiencing pain in his back, neck, and eye. A physician's assistant responded as follows: "I would be happy to come to see you. Do you have any idea what's causing these problems? Was there any trauma involved? (fight, etc.)." It is not clear whether J.S. was seen by medical staff. A report stated that J.S. was uncooperative with Cruz in an interview on May 14, during which J.S. refused to identify his assailants because he was not given assurances that the named individuals would be transferred to other institutions.
On May 17, 2002, J.S. was placed in the Diagnostic and Evaluation Center (DEC) hospital due to concern about the amount of weight he had lost since being placed in the segregation unit. J.S. testified that he had not eaten since May 5 due to being scared to leave his cell and being too stressed. On May 21, Dunn visited J.S. at DEC, and Dunn testified that J.S. was not cooperative and would not tell Dunn what occurred or who was responsible. J.S. admitted that he did not discuss the assault with Dunn. J.S. admitted that he was seen by staff while at DEC, but he testified that the visits did not concern his injuries because staff was only interested in his weight loss. J.S. testified that he complained about his injuries to medical staff, but they were ignored. J.S. admitted that he never talked with medical staff about the assault during the 25 days he was in DEC—until June 11. He also admitted that he was seen by a medical doctor while in the hospital and that at some point, medical staff referred J.S. to a mental health practitioner. Dr. Randy Kohl, a physician with the Department, testified that a "Dr. Prusmack had noted a resolving contusion on the right side of the face," but that J.S. "had stated he did not wish to talk about it at that point." J.S. testified that a physical examination was never performed. Kohl testified that J.S. was referred to a Dr. Hachiya, a psychiatrist, and to Dr. Mohammad Kamal, another psychiatrist, while J.S. was in DEC.
A May 25, 2002, "Mental Health/Medical Referral Form" stated that J.S. had revealed that he was sexually assaulted by his cellmate. A May 26 "health record" by "Bagley," a "PAC," states in part: "A/P 1) anorexia 2) depression (?) 3) sexual assault (?)." On May 28, Kamal examined J.S. Kamal's psychiatric note of that date stated that J.S. was being seen because "reportedly he has been assaulted physically/sexually recently about two weeks ago and has since then [been] refusing to eat." Kamal's assessment of J.S. was that he "seems to have an acute stress reaction given to what he has gone through. However he seems to be well in control." Kamal further stated:
J.S. admitted that Kamal offered psychiatric medications, but J.S. told him that he did not want to take any such medications. J.S. denied telling Kamal that he wanted to deal with the issue on his own. J.S. admitted that in a letter to the warden he wrote that he had declined to comment on what happened until May 28. A May 30 "Mental Health/Medical Referral Form" stated that J.S. refused to disclose the reason for refusing food, but that he appeared to have been victimized, possibly sexually, by his cellmate or others. J.S. testified that he had his first flashback on June 3 which "relived the rape," that he put in a kite to mental health stating his desire to be seen due to hallucinations, but that he was not seen and that his kite was not returned.
Because only J.S.' treatment from May 7 through June 11, 2002, and since November 22, 2005, is at issue in this appeal, we omit discussion of medical and mental health care during other periods of time.
Jeremy Simonsen, a psychologist with the Department and a licensed mental health practitioner, testified that he met with J.S. a number of times, most frequently in 2005. Simonsen testified that prior to that time, "most of our meetings were with regard to segregation mental status exams, which . . . were done every 90 days. And, at that point, I believe we were doing them maybe monthly, just to assess people's status, if they are decompensating in segregation severely." Simonsen testified that he frequently conducted mental health status reviews and that during such reviews, mental health practitioners assess a number of things to look at a person's general level of functioning, including whether the person is eating and sleeping, the person's hygiene, if the person's thought process and mood are appropriate, the person's adjustment in the unit, and whether the person is engaged in activities.
On November 22, 2005, Dr. Glen Christensen, a consulting psychiatrist, saw J.S. Christensen has generally seen J.S. monthly since that time. J.S. testified that he has received medication for his symptoms for that entire time period. J.S. testified that Christensen had given him "pointers" on methods that J.S. could use to provide therapy for himself. In 2006, J.S. continued to be seen monthly by Christensen, was still being provided psychiatric medications by Christensen, and continued to receive monthly segregation status reviews. J.S. admitted that he has seen Christensen regularly in 2007, 2008, and 2009. During that time, he had also been seen by Tim Knight, a licensed mental health practitioner, who recommended that J.S. engage in individual counseling with him. J.S. testified that he was not satisfied with the treatment he received from Christensen and that his problems were getting worse.
Christensen testified that the community standard for the number of visits with a psychiatrist on a monthly basis during the pretreatment phase of PTSD "is as many as you can get." He testified that the community standard is less than what J.S. had been provided. According to Christensen, once the person is seeing his or her therapist at least every other week, "then the psychiatrist's role is probably better suited by stretching out the time between visits to every eight weeks or every nine weeks." Christensen testified that cognitive behavioral therapy is the standard of care for treating patients with PTSD. He testified that J.S. was receiving cognitive behavioral therapy at the time of trial and that he was offered such therapy back in 2002 because it was part of Kamal's report, but that J.S. "emphatically . . . declined to participate in that treatment at that time." Christensen's recollection was that Kamal offered psychiatric treatment and medications to J.S. in May 2002 and that J.S. refused treatment.
Christensen testified that it is common for PTSD to stay with a person for life. Christensen did not think J.S. would be free from nightmares and flashbacks; thus, Christensen opined to a reasonable degree of medical certainty that J.S. would suffer some of the symptoms for the rest of his life. Christensen testified that there is physical pain that goes along with PTSD. He testified that he had not observed J.S. to suffer from physical pain, but he had no reason to dispute J.S.' description of it.
Christensen had an opinion within a reasonable degree of medical certainty as to whether the care provided to J.S. after the May 7, 2002, incident complied with the community standard of care:
Christensen testified that J.S. was not on any "SSRI" medication at the time of trial; rather, J.S. was taking a mild general anesthetic and Seroquel—a medication with antidepressant, antimanic, and antischizophrenic effects. Christensen testified that Seroquel "essentially duplicates the serotonic effect and the adrenaline effect of the SSRIs or the SNRIs." Christensen testified that the Department pays for his treatment of J.S. and for the medications that J.S. receives.
Eye movement desensitization and reprocessing (EMDR) therapy can be used for patients with PTSD. It is "an eye movement retraining type of a therapy in which an individual learns to do specific eye motions in order to relax." Christensen did not feel that J.S. was ready for EMDR or neurobiofeedback yet, but he testified that he has seen evidence of J.S.' progressing in cognitive behavioral therapy. Christensen opined that if Simonsen and another mental health practitioner had not approached J.S. with "nonverbal indications of contempt," they would have made more progress together, and that J.S.' condition would have improved further and he might have been ready for EMDR sooner. To Christensen's knowledge, EMDR is not available to male inmates.
Dr. Bruce Gutnik, a psychiatrist, met with J.S. twice and diagnosed him with PTSD and depressive disorder, not otherwise specified. Gutnik's initial evaluation was in 2007 and lasted approximately 2 hours 45 minutes. Gutnik reevaluated J.S. on July 26, 2009, and he testified that J.S.' symptoms—daily panic attacks, daily flashbacks, and nightly nightmares—had not changed. Gutnik testified that if a person came to his office with the same condition as J.S., Gutnik would want to see the person at least weekly. Gutnik further testified that he would have the person get involved with a therapist who can do EMDR on a weekly basis. Gutnik would also look at medications like "an SSRI type antidepressant."
Gutnik testified that it is better to diagnose a patient with PTSD earlier rather than later and that the person can become more symptomatic and make treatment more difficult as time elapses. Gutnik opined that J.S. did not receive timely and proper treatment. Gutnik testified that providing either cognitive behavioral treatment or EMDR would comply with the community standard. Based on Gutnik's review of J.S.' mental health and medical records, Gutnik was aware that mental health staff had offered some kind of treatment. He also saw instances in which staff or licensed mental health practitioners tried to offer cognitive behavioral treatment to J.S., which J.S. refused.
Kari Perez, a clinical psychologist, has been the clinical psychologist supervisor at the Nebraska State Penitentiary since September 2005. She testified that she attempted to meet with J.S. once, but that he refused to meet with her. She testified that she was familiar with his treatment, progress, and diagnosis. Perez opined that the treatment provided to J.S. with regard to mental health care since May 7, 2002, had gone above the community standard of care. She believed that the current care J.S. was receiving with respect to his mental health met the community standard of care to the extent that he had accepted it. Perez recommended that J.S. get treatment by a clinician once a week for 6 to 8 weeks, but she testified that he was not receiving such treatment because he had not requested it and past attempts to provide it had not "been fruitful." Perez testified that if J.S. requested such treatment and was willing to engage in it, a mental health practitioner would provide it.
J.S. testified that he continued to have flashbacks and hallucinations on a daily basis. He also has nightmares, which he did not have prior to the assault. J.S. sleeps 3 to 4 hours per night compared to 7% to 8 hours before the assault. He also suffers from erectile dysfunction, phantom rectal pains, and anxiety. J.S. testified that he cannot hear as well with his right ear as he did before the assault and that he suffers from migraines.
The district court found that the Department was negligent in failing to provide J.S. with adequate protection from the May 7, 2002, assault and that the assault was the proximate cause of some damage to J.S. The court found that between July 11, 2002, and November 22, 2005, J.S. was not provided with necessary treatment for PTSD in a timely fashion, except when he was being treated by Dr. Pratap Pothuloori and a Dr. Yu. The district court determined that the treatment J.S. had received since November 22 complied with the applicable community standard of care for PTSD. The court entered judgment in favor of J.S. in the amount of $250,000. The court also denied J.S.' request for injunctive relief.
J.S. timely appeals. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
J.S. asserts that the district court erred in three respects. First, he alleges that the court's finding that the Department provided him with necessary treatment for PTSD in a timely fashion from May 7 through June 11, 2002, and since November 22, 2005, was not supported by the evidence. Second, J.S. claims that the amount of damages awarded was inadequate. Third, J.S. alleges that the court erred in denying his request for injunctive relief.
A district court's findings of fact in a proceeding under the State Tort Claims Act will not be set aside unless such findings are clearly erroneous. Cingle v. State, 277 Neb. 957, 766 N.W.2d 381 (2009).
The amount of damages awarded in a case under the State Tort Claims Act is a matter solely for the finder of fact, whose action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of damages proved at trial. Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).
The grant or denial of an injunction is reviewed de novo on the record. See Sherman v. Sherman, 18 Neb.App. 342, 781 N.W.2d 615 (2010).
Neb. Rev. Stat. § 83-4,155 (Reissue 2008) requires the Department to provide a community standard of health care to all inmates in administering health care services. "Community standard of health care means medical care of the type, quality, and amount that any individual residing within the community in question could expect to receive in that community." Neb. Rev. Stat. § 83-4,154(1) (Reissue 2008).
The district court could reasonably conclude that J.S.' refusal to disclose the cause of his injuries initially prevented the Department from providing additional care and treatment. Evidence established that 1 day after the assault, staff members—particularly Cruz, Dunn, Chandler, and Percival—inquired of J.S. about the origin of his facial injuries but J.S. refused to reveal what had happened. Eventually, on May 17, 2002, J.S. was admitted to DEC due to concerns about his weight loss and refusal to eat. J.S. received 24-hour medical care while housed at DEC, where he remained until June 11. On May 26, "Bagley" noted that J.S. displayed "depressive characteristics" and that his problem was "depressive/PTSD (possible sexual assault)." "Bagley" requested that J.S. be evaluated by Kamal, which evaluation occurred on May 28. According to Kamal's notes, J.S. seemed "to be well in control," did not want to take psychiatric medication, and wanted to deal with his problems on his own. Kamal recommended that J.S. be monitored closely and regularly. J.S. admitted writing in a letter to the warden that J.S. had declined to comment on what happened until May 28. Because J.S. did not discuss the assault until that time—despite repeated attempts by staff members to learn the details—the Department cannot be faulted for failing to provide necessary treatment to J.S. for PTSD. Further, while housed in DEC, J.S. was monitored closely and regularly as recommended by Kamal. Thus, the district court's implicit finding that the treatment of J.S. between May 7 and June 11 did not fall below the community standard of care was not clearly erroneous.
The nature of J.S.' care and treatment changed on November 22, 2005, when Christensen, an outside consulting psychiatrist, began seeing J.S. on a monthly basis. Other mental health professionals—including Simonsen and Knight—saw J.S. numerous times a year from 2005 to the time of trial.
The expert testimony conflicted regarding whether J.S.' treatment met the community standard of care, and our standard of review gives deference to the district court's resolution of the conflicting testimony. Gutnik testified that the standard methods of treatment of PTSD in the community are a combination of psychotherapies—which include EMDR and cognitive behavioral therapy—and medications. He opined that the proper course of treatment for J.S.' condition included being seen by a psychiatrist weekly, engaging in EMDR weekly, and taking medications, particularly an SSRI-type antidepressant. Gutnik opined that J.S. did not receive timely and proper treatment for his PTSD. Christensen agreed that the community standard of care for treating people with PTSD was cognitive behavioral therapy. However, Christensen opined that "we've got the community standard of care, as usually manifested, I think we've got it exceeded." Perez also testified that the treatment provided to J.S. had "gone above" the community standard of care. Determining the weight that should be given expert testimony is uniquely the province of the fact finder. Cingle v. State, 277 Neb. 957, 766 N.W.2d 381 (2009). Where opinion evidence of experts is in conflict, the resolution of the conflict becomes a question for the finder of fact. See Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004). The district court resolved the issue in favor of the Department by accepting Christensen's and Perez' testimonies, and its factual finding was not clearly erroneous.
J.S. next argues that the amount of damages awarded was inadequate, but under our standard of review, we give considerable deference to the district court's findings of fact and find no clear error in the court's conclusions. J.S. argues that it appeared the entire amount of damages was to compensate him for his past pain and suffering and did not include future health care expenses or future pain and suffering. On appeal, the fact finder's determination of damages is given great deference. Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007). An award of damages may be set aside as inadequate when, and not unless, it is so inadequate as to be the result of passion, prejudice, mistake, or some other means not apparent in the record. Id. The court awarded J.S. $250,000. We decline the invitation of both parties to "color match" cases to determine whether the award was adequate. But contrary to J.S.' argument, we see nothing inadequate about the award of damages.
The collateral source rule does not apply to the future health care to be provided to J.S. by the Department while he remains incarcerated. The collateral source rule provides that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007). The medical director for the Department testified that all the medical and mental health care that J.S. received had been paid for by the Department. Thus, there is no collateral source because the Department is both the tort-feasor and the source providing benefits to J.S.
Because J.S.' release is purely speculative, the district court did not err in declining to include future health care costs in the damage award. The medical director testified that J.S.' future medical expenses, including medications, would be paid by the Department as long as J.S. is incarcerated. J.S., who has been in the Department's custody since August 1985 for a second degree murder conviction, was sentenced to incarceration of a minimum of 10 years to a maximum of life. The warden testified that there was no tentative release date for J.S. Whether J.S. will ever be released from incarceration is uncertain. We recognize that Gutnik provided testimony about future medical costs. He testified that he was "guessing" the cost for medications would be "probably about 400" and that the price would go down significantly if more of the medications became generics, but he admitted that he did not sell medication and did not "know what the prices are." He also testified that the rate for a weekly visit with a psychiatrist in Omaha, Nebraska, would be about $200 to $300 an hour, that weekly therapy with EMDR would be about $100 an hour, and that such a regimen would be necessary for at least 2 years and possibly for life. But, again, any future damages which J.S. may incur are unknown because there was no evidence that he may be released from the Department's custody in the foreseeable future. While damages need not be proved with mathematical certainty, neither can they be established by evidence which is speculative and conjectural. Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778 N.W.2d 433 (2010). Accordingly, we conclude the court was not clearly wrong in denying future medical expenses.
Finally, J.S. argues that the court erred in denying his request for injunctive relief with respect to private medical and mental health care. He sought an order requiring the Department to allow him to obtain psychotherapy and psychiatric treatment from private providers.
Although we review this issue de novo on the record, we agree with the conclusion of the district court. An injunction is an extraordinary remedy that ordinarily should not be granted except in a clear case where there is actual and substantial injury. Such a remedy should not be granted unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice. Hogelin v. City of Columbus, 274 Neb. 453, 741 N.W.2d 617 (2007). In a suit for an injunction, a failure to show damages, presently or in the future, operates to defeat an application for injunctive relief. Bihuniak v. Roberta Corrigan Farm, 17 Neb.App. 177, 757 N.W.2d 725 (2008). As discussed above, we affirm the district court's finding that J.S.' treatment since November 22, 2005, has met the community standard of care for PTSD. Because J.S. is presently receiving adequate care and has not shown that such care will cease to be adequate in the future, the district court properly denied J.S.' request for an injunction.
We conclude that the district court's finding that J.S.' treatment met the community standard of care with the exception of the time between his release from DEC on June 11, 2002, until he began treatment with Christensen on November 22, 2005, was not clearly erroneous. We further determine that the court's award of damages was not inadequate and was supported by the evidence. Finally, we conclude that the district court did not err in denying J.S.' request for injunctive relief to mandate future care from private providers.
AFFIRMED.
