MYRON H. THOMPSON, District Judge.
Plaintiff Courtney McBride developed a rare skin disease after receiving treatment at a county hospital followed by her subsequent discharge to a local jail. She brings this lawsuit against the following defendants: Houston County Health Care Authority; Drs. Dinesh Karumanchi and Rajendra Paladugu; the City of Dothan; and Dothan City Jail Correctional Officers Mamie McCory and Stephanie Johnson. She asserts that the Health Care Authority and the doctors committed medical malpractice in violation of Alabama law and that the City of Dothan and its correctional officers were deliberately indifferent to her medical needs in violation of the United States Constitution and were negligent in violation of Alabama law. The court has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3) (civil rights) and § 1367 (supplemental).
The case is now before this court on the defendants' motions for summary judgment. The motions will be granted in part and denied in part.
"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party.
This case arises out of McBride's development of a severe rash that peeled off large parts of her skin. Specifically, she brings medical-malpractice claims against the Houston County Health Care Authority as well as the doctors practicing there, and deliberate-indifference and negligence claims against the City of Dothan and the correctional officers at the Dothan City Jail. As the defendants have moved for summary judgment, the facts are taken in the light most favorable to McBride.
The facts can be divided into three parts: (A) McBride's initial period in the Southeast Alabama Medical Center, which is run by Houston County Health Care Authority; (B) McBride's time in jail; and (C) McBride's subsequent admissions to the medical center at the end of her jail stay and after she was released.
On June 21, 2012, a municipal court revoked McBride's bond on a pending domestic-violence charge and ordered her to jail. After she had a psychological breakdown in the courtroom, she was transported to the behavioral medical unit of Southeast Alabama Medical Center.
While at the medical center, Dr. Karumanchi conducted several psychiatric evaluations of McBride. The day after she arrived, Karumanchi diagnosed her with major depressive disorder, alcohol abuse, and social anxiety. During a subsequent evaluation, on June 25, he diagnosed her with bipolar disorder and bulimia, as well as other mental-health issues and alcohol abuse. Along with other drugs for depression, Karumanchi prescribed one 25mg Lamictal
As background, SJS occurs when less than 10 % of the skin is affected with blisters. TEN occurs when more than 30 % is affected. Between 10 % and 30 %, there is a hybrid diagnosis of SJS/TEN. At least one expert, Dr. Robert Auerbach, testified that two mucous membranes should also be involved for an SJS or TEN diagnosis. These membranes can include the mouth, throat, and vaginal area, among other areas.
Although Karumanchi remained the psychiatrist on the case until McBride was discharged to the jail on July 4, several other medical professionals saw McBride during that span.
First, after Karumanchi prescribed Lamictal on the afternoon of June 25, Herminia Coppage, a nurse at the hospital, had the responsibility of administering the medication. Coppage knew that that the standard of care was to administer two dosages of Lamictal at 12-hour intervals, but because Karumanchi's order to administer two doses came during the afternoon, Coppage administered both dosages of Lamictal within two and a half hours of each other in the late evening. She stated that she followed the doctor's orders giving the dosages at this interval.
The parties dispute whether Coppage also gave McBride a warning about a severe rash as a potential side effect of Lamictal. There is a signed page in the record from June 25 where McBride acknowledged the side effects, including "yellowing of the eyes or skin" for some drug. Houston County Medical Records (doc. no. 131-1) at 644. The signed page, though, does not mention Lamictal, and no other pages are included.
Second, while McBride remained in the hospital, Dr. Paladugu, a psychiatrist, covered for Karumanchi the weekend of June 30 to July 1. He did not change the prescription for Lamictal but did add a prescription for an anti-psychotic drug. McBride testified that she does not remember if Paladugu warned her about side effects of Lamictal but claims that she would have heard a warning about a potentially fatal side effect and its symptoms.
Karumanchi returned after the weekend and was the doctor responsible when the medical center discharged McBride to the jail on July 4. Karumanchi maintains that he told the officer who transported McBride to jail that if her conditioned worsened, she should return to the hospital; the officer denies that he was told any information.
McBride arrived in the Dothan City Jail on July 4. Dothan had several policies at the jail relevant to this case regarding medical care for prisoners. First, because the jail did not have medical personnel on staff, the city had a policy of transporting prisoners to the hospital should a medical issue arise. Second, the supervisor would ensure that any message the treating doctor had passed to the transportation officer would be communicated to any other officer that "is going to have any interaction with the detainee." McCory Dep. (doc. no. 172-17) at 43:21-45:23.
When McBride arrived at the jail, the jailing officers put her in a holding cell near the front of the jail, noting her potential suicide risk. The jail also filled McBride's Lamictal prescription, and she continued to take the drug during her time in jail.
On the next day, McBride began to feel ill. Her lips became chapped, and she was freezing. By July 6, two days after she arrived, she reported feeling horrible. She could not eat and had difficulty getting out of bed. On the same day, she had a follow-up medical appointment scheduled at a separate medical facility, presumably for mental-health treatment. During that trip, she did not mention a skin rash or any kind of sickness to either the officer that transported her to the appointment or to the medical personnel.
Over the next four days, McBride's condition continued to deteriorate. Every day, she screamed for people to help her and banged on the door of her cell when she had energy. At some point while in jail, she spoke with Correctional Officer Johnson, a detention lieutenant at the jail, about her condition. At that point, McBride's lips were peeling off. Although Johnson brought her Vaseline and water, she did not take her to the hospital, as per the city's policy of providing medical care. Johnson also brought McBride her medication. Correctional Officer McCory, the other individual defendant, was the jail administrator and worked at least three days when McBride was screaming. She could hear McBride's shouting from her office, but did nothing to help her.
Finally, on July 10, when McBride complained of a sore throat and refused to eat breakfast, the jail transported her back to the medical center. C. McBride's Subsequent Trips to the Medical Center
When McBride arrived at the medical center on July 10, she first had an initial screening. The medical records note that, although she "appear[ed] well" and was "in no distress," she also was "malnourished," had sunken eyes, and her throat pain was a "10/10." CliniCare July 10 Evaluation (doc. no. 172-3) at 4.
After this initial screening, McBride was sent to the emergency room. She told the nurse that she was taking Lamictal. After an examination, McBride was diagnosed with a sore throat, a fever, mouth ulcers, and a rash.
After McBride returned home on July 10, she had trouble urinating. Her ears hurt, she had a headache, and she still had splotches on her skin. She went to the emergency room the following day, July 11, and was diagnosed with vaginitis by the doctor. The physician's assistant did not see a rash, and McBride was not diagnosed with any serious medical condition. Although McBride's mother brought in her bag of medications, none of the nurses or doctors asked about Lamictal. The nurses also did not annotate McBride's medical charts to indicate she was taking Lamictal.
The night of July 11 and the following morning, the splotches on McBride's face started appearing on her back and chest. Her eyes became extremely bloodshot, and her body was aching. The next day, when her mother attempted to remove one of McBride's earrings, all of the skin on her ear peeled off. Her mother immediately took her back to the emergency room for the third time in as many days.
Paladugu, who had been the covering physician for one weekend during her previous stay, attended to McBride on that day and realized what was occurring. He ordered her to stop taking Lamictal and told her that she had SJS caused by Lamictal. In the medical record, Paladugu diagnosed her with SJS and stated: "Her symptoms are most likely due to Lamictal. Stevens-Johnson syndrome is one of the side effects of Lamictal." Medical Records (doc. no. 131-1) at 68.
McBride was then transferred to the intensive-care unit at the medical center. For the next four days, rashes covered 99 % of her body, and over 30 % of the top layer of her skin peeled off. Doctors told her that she could die from the condition. On July 16, she was transferred to the University of Alabama-Birmingham hospital, which has additional expertise in the area. Her diagnosis upon transfer was SJS and TEN. She received treatment for nine days and was eventually released.
There are several distinct sets of claims in this case. The court will first address the state-law claims of medical malpractice against the Health Care Authority and the doctors and then move to the federal constitutional claims and the state-law negligence claims against the City of Dothan and the correctional officers.
To prevail on her medical-malpractice claim, McBride must prove by substantial evidence that the health care provider "failed to exercise . . . reasonable care" and that "such failure probably caused the injury . . . in question." 1975 Ala. Code §§ 6-5-548, 6-5-549. Substantial evidence means that the evidence "would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed." 1975 Ala. Code § 6-5-542(5). The court will first address two overarching issues: several defendants' objections to expert reports and Karumanchi's, Paladugu's, and the Houston County Medical Center's (healthcare defendants) general challenge to McBride's argument that a 50mg starting dosage of Lamictal can cause SJS and TEN in general and did so in her case. It will then address whether a reasonable factfinder could find that each individual defendant breached the duty of care, and, if so, that that violation caused McBride's condition.
Defendant Karumanchi contends that Dr. Carla Rodgers's testimony should be disregarded, and all the healthcare defendants contend that Dr. Allan Nineberg's testimony should be disregarded. The court disagrees.
Karumanchi first contends that Dr. Rodgers's report should be excluded because her affidavit is not based on personal knowledge. This argument fails because expert reports do not have to be based on personal knowledge.
To the extent the personal-knowledge requirement in Federal Rule of Civil Procedure 56(c)(4) can be reconciled with Federal Rule of Evidence 602's explicit exemption of expert testimony from the personal-knowledge requirement, it has been interpreted to mean that an "expert must have actually engaged in an examination of the case and its issues but may, unlike a fact witness, rely on posited facts or on inadmissible material (such as scholarly work or empirical data that is technically hearsay), if it is the type of material on which such experts reasonably regularly rely." 11-56 Moore's Federal Practice-Civil § 56.94;
Here, Rodgers clearly identified the documents on which she relied in the first part of her report, and there is no indication she did not personally examine these documents. Therefore, even if the personal-knowledge requirement applies, Rodgers's report meets it.
Karumanchi next objects that Dr. Rodgers's declaration is unsworn and constitutes inadmissible hearsay. These arguments are meritless. Rodgers signed and dated her report under penalty of perjury, which substitutes for a sworn affidavit.
As for Dr. Nineberg, the healthcare defendants move to disregard as untimely and prejudicial his third expert report, which was filed as part of McBride's opposition to summary judgment.
Under Federal Rule of Civil Procedure 26(a)(2)(B), an expert's written report must contain "a complete statement of all opinions the witness will express and the basis and reasons for them," "the facts or data considered by the witness in forming them," and the "witness's qualifications," among other requirements. The court can impose sanctions for failure to comply with this rule, "unless the failure was substantially justified or harmless." Fed. R. Civ. P. 37(c)(1). An untimely report is harmless "when there is no prejudice to the party entitled to receive the disclosure."
Here, regardless of whether the report was untimely, it was harmless. Nineberg expressed a consistent opinion over his second and third reports that an excessive starting dosage of Lamictal can increase the risk of SJS and TEN, and he referenced the title of every article cited in the third report at his deposition. He later supplied a copy of these articles to the defendants, save one, over which there seems to be confusion. At this point, the court declines to disregard any of the articles. The doctors and the Health Care Authority had the title of each article from the deposition and copies of all but one, and they cross-examined Nineberg about each in the deposition. The articles used in this case should not have come as a surprise. Regarding the one article not yet supplied to the healthcare defendants, the court gives McBride the benefit of the doubt that there is genuine confusion and that she is not intentionally withholding it from defense counsel.
As to Dr. Nineberg's addition in the third report that he prescribed Lamictal in his practice, it is harmless, even assuming it was untimely. Nineberg's second report made clear that he is a practicing psychiatrist and included descriptions of Lamictal and its potential side effects as well as his opinions on whether the doctors' prescription of Lamictal breached the standard of care because it could create an increased risk of a serious rash. This report put the doctors and the Health Care Authority on notice that Nineberg would be speaking to a psychiatrist's considerations when prescribing Lamictal. In other words, the report provided sufficient information for any defendant to ask Nineberg about his familiarity with Lamictal either from his own practice or reading the literature.
Each of the three healthcare defendants argues that there is no scientific proof that Lamictal causes SJS and TEN in general or caused these diseases in this particular case. McBride, however, has presented enough expert testimony to create a genuine dispute of material fact.
The healthcare defendants first argue that Lamictal is only one of several possible causes of McBride's SJS and TEN rather than the probable cause.
The healthcare defendants next contend that there is no scientific study showing that a higher initial dosage of Lamictal causes SJS or TEN. The court's earlier
In sum, with their argument on causation, the healthcare defendants obfuscate a relatively simple issue. McBride took a dosage of Lamictal that several experts and several studies say causes SJS and TEN. Although another drug or another environmental factor might cause SJS or TEN in the absence of this high starting dosage, it is the most likely explanation here. The main question for the jury will be whether one or more of the healthcare defendants' negligence caused McBride's disease or whether it was a tragic situation in spite of the these defendants' best efforts. The court now turns to that question.
Each healthcare defendant argues that he, or it, did not violate the standard of care, and, even if he, or it, did, those actions did not probably cause McBride to develop SJS and TEN.
McBride argues that defendant Karumanchi violated the standard of care by (i) failing to obtain informed consent to administer Lamictal at all and to administer it at a higher than recommended dosage; (ii) failing to warn McBride about the risks of Lamictal; (iii) prescribing medications at too high a dose and/or too frequently; (iv) failing to give instructions to the jail on how to care for her; (v) failing to obtain a complete history of McBride's previous medical treatment and medications; and (vi) discharging her to the jail even though it was known the jail was inadequately staffed and trained to care for McBride. Karumanchi objects to each theory, arguing that he did not violate the standard of care and that any alleged violation did not cause McBride's medical condition. The court finds that there is a genuine dispute of material fact as to the first four theories (failure to obtain informed consent; failure to warn; administering too high a dosage; and failing to give the jail instruction) but grants summary judgment in favor defendant Karumanchi as to the last two theories. It will first discuss McBride's theories on how Karumanchi breached the standard of care and then turn to causation.
As a threshold, this case raises the question of the difference between informed consent and failure to warn. The court interprets the informed-consent theory as whether McBride would have taken Lamictal in the first place if she knew the risks and interprets the failure-to-warn theory as whether McBride would have stopped taking Lamictal once she started to see a rash or feel certain side effects had she received an adequate warning.
As to informed consent, Karumanchi first argues that there is no genuine dispute of material fact regarding informed consent because the record indicates that he informed McBride of the risks of Lamictal. The court finds that there is a genuine dispute as to whether Karumanchi obtained informed consent to prescribe Lamictal at a starting dosage of 50mg per day; however, it rejects the claim regarding informed consent to give McBride the normal 25mg dosage of Lamictal.
"To prove lack of informed consent, [McBride] will need to establish [i] what disclosure of information is required by the standard of care applicable to a hospital, [ii] establish what she was in fact told, and [iii] prove that had she been given certain inappropriately withheld information she would not have submitted to the medical treatment in question."
The standard of care required Karumanchi to disclose to McBride the same risks as would any "other reasonably competent physicians practicing in the same general neighborhood and in the same general line of practice."
The next element—what Karumanchi told McBride—is disputed. McBride claims that Karumanchi discussed only the potential for weight gain and the need to avoid suddenly quitting Lamictal based on the risk of seizure. Pointing to his medical notes, Karumanchi responds that he told her of the risk of severe skin rash. Even though Karumanchi did make a notation in the medical notes, a reasonable juror could still believe McBride's testimony and find that Karumanchi either lied in the medical record or included rashes in the notation out of habit when prescribing Lamictal but forgot to tell McBride. Moreover, the medical notes do not state whether Karumanchi told McBride about the higher risk of skin rash from the 50mg starting dosage.
Finally, while there is a genuine dispute of material fact over whether McBride would have refused to take the 50mg dosage had she been informed of the risk of severe skin rash at this higher level, there is no genuine dispute about whether she would have taken Lamictal at all. Alabama has adopted an objective standard for this test: Would a reasonable patient in McBride's position have consented had she known the material information the doctor failed to provide?
McBride has not presented evidence that a reasonable patient would not take the standard starting dosage of Lamictal even if the patient had a warning about the potential for severe, but rare, side effects. McBride's experts, Nineberg and Rodgers, routinely prescribe Lamictal, and neither testified to patients refusing treatment at the normal dosage. Indeed, numerous drugs have severe, but rare, side effects, and yet many patients routinely take them. Although McBride stated that she would never have taken the drug at even the normal dosage, that statement, without more, is not enough. On the other hand, a reasonable patient likely would not take a higher starting dosage of a drug if she knew that the higher dosage was linked to a much higher incidence of a potentially deadly skin disease. This is especially true if the higher dosage is not needed, as Drs. Nineberg and Rodgers contend. In sum, there is a genuine dispute of material fact whether Karumanchi violated the standard of care by failing to inform McBride of the dangers of a 50mg starting dosage of Lamictal.
McBride also contends that defendant Karumanchi should be held liable for failing to warn her about the potential severe skin rash from taking Lamictal at a higher dosage. This theory resembles the informed-consent theory because both boil down to what Karumanchi told McBride before he prescribed the medicine.
As discussed above, there is a genuine dispute of material fact as to whether defendant Karumanchi's decision to start Lamictal at 50mg a day breached the standard of care. Although Karumanchi contends that he prescribed the 50mg starting dose because of McBride's diagnosed bulimia and her past use of Lamictal without incident, both Drs. Nineberg and Rodgers reject the decision to increase the initial dosage based on these conditions. As such, this is a jury question.
McBride also argues that defendant Karumanchi breached the standard of care by failing to provide the jail's transporting officer information about her treatment and the warning that she should return to the hospital if her condition deteriorated. Dr. Rodgers, one of McBride's experts, notes that failure to pass on this information would be a breach of the standard of care. Rodgers's Report (doc. no. 173-4) at 4.
Karumanchi's only response appears to be that he warned the jail. Because the transporting officer disputes this fact, McBride has established a genuine dispute of material fact as to whether Karumanchi breached his duty of care by failing to inform the jail of McBride's condition.
Defendant Karumanchi next contends that McBride has not presented any evidence that the failure to obtain past medical history breaches the standard of care.
The court agrees for two reasons. First, despite Karumanchi moving for summary judgment on all grounds, McBride did not address this theory in his opposition briefing and therefore has abandoned the claim.
For these two reasons, summary judgment is granted in favor of defendant Karumanchi on this theory.
McBride's final theory for defendant Karumanchi's malpractice is that he should not have discharged McBride to the local jail on July 4 when he knew it was inadequately staffed to care for McBride. Summary judgment will be granted in favor of Karumanchi on this theory.
First, McBride again fails to present expert testimony on this issue.
Defendant Karumanchi last argues that even if he breached the standard of care on the remaining theories—prescribing high starting dosages, failing to obtain informed consent, failing to warn, and failing to provide instructions to the jail—none of these acts probably caused McBride to develop SJS or TEN.
These four remaining theories can be thought of as the root cause of the problem (prescribing the higher dosage), and subsequent mistakes that ensured the problem was not prevented. As discussed above, evidence suggests that prescribing the higher dosage probably caused SJS and TEN. The evidence supports the following conclusions: the alleged failure of informed consent about the higher dosage compounded this root cause because there is a genuine dispute as to whether McBride would have taken the Lamictal at the 50mg level to start with had she known the potential consequences; Karumanchi's alleged failure to warn her about the early onset symptoms of SJS and TEN, combined with his warning her not to stop taking the medicine for fear of seizures, likewise compounded the prescribing error by causing McBride to continue taking the Lamictal when she experienced the early onset symptoms in her jail cell and preventing her from identifying the problem to subsequent doctors; and the alleged failure to tell the jail about McBride's condition ensured the correctional officers did not recognize McBride's symptoms and take her immediately to the doctor.
McBride therefore has presented sufficient evidence to create a genuine dispute regarding whether these breaches probably caused her illness.
McBride argues that Defendant Paladugu committed malpractice when, as the covering psychiatrist, he failed to warn her about the possibility of a severe skin rash from taking Lamictal. Paladugu responds that he did not have a duty to warn and there is no causation because McBride did not hear any of Paladugu's warning. Because McBride does not present sufficient evidence to establish that Paladugu's failure to warn her about the risk probably caused her SJS and TEN, summary judgment will be granted in favor of Paladugu.
The underlying breach for Paladugu, according to McBride, is not that he failed to give a warning, but rather that, once he started giving McBride a warning about Lamictal, he had to give a complete one, including a warning of getting a severe skin rash from a high starting dosage. McBride's causation theory appears to be that she assumed the warning given by Paladugu was the full warning, did not realize that there were other potential side effects such as SJS or TEN, and failed to recognize the symptoms of SJS and TEN when she started experiencing them. Put differently, she relied on Paladugu, and he led her astray.
The problem with this theory is that McBride did not hear any warning from Paladugu—that is, she never relied on him to give her the full warning because she never thought he was giving her a warning at all. This makes the situation as if Paladugu gave no warning at all, which all parties agree would not have breached the standard of care. In sum, there is no causation because McBride never relied on Paladugu at all, and her only theory for breach was reliance on an inadequate warning.
McBride argues that defendant Houston County Health Care Authority committed malpractice based on vicarious liability for the actions of defendants Karumanchi and Paladugu, psychiatric nurse Coppage, who treated McBride in the behavioral medical unit, and the emergency-room nurses who treated McBride starting on July 10. The Health Care Authority acknowledges that it would be vicariously liable for the actions of these doctors and nurses, but disputes liability on all theories. Karumanchi and Paladugu are covered above; below, the court addresses the actions of the behavioral-medical-unit and emergency-room nurses.
McBride claims that nurse Coppage committed malpractice when treating McBride in the behavioral medical unit by (i) failing to obtain informed consent to administer Lamictal at a higher than recommended dose; (ii) failing to warn McBride about the side effects of Lamictal; (iii) failing to document McBride's medication; (iv) failing to administer and monitor medication properly; (v) administering medications at too high a dose; and (vi) administering medications too frequently. The Health Care Authority argues that Coppage did not breach the standard of care on the first three theories and that any breach on the latter three theories did not cause McBride's condition. The court agrees and grants summary judgment for the Health Care Authority as to any liability based on Coppage's actions.
First, the Health Care Authority contends that nurses do not have a duty to obtain informed consent or to warn patients of the side effects of a drug the doctor prescribed. In
The same logic precludes a failure-to-warn theory. Under this logic, even if a nurse gets a patient to sign a form with warnings about a medication, the doctor would presumably know more details about the different drug options for a patient and the risks associated with each. Given that the Alabama Supreme Court declined to create overlapping duties for nurses and doctors in the informed-consent context in
Second, McBride's contention that Coppage failed to document her medications cannot go forward either. She provides neither expert testimony nor any argument as to how she can proceed on this theory.
As to McBride's last three theories about the failure to administer the medication properly, too frequently, or at too high a dose, McBride has failed to establish that these actions had any causal relationship with her illness. Although the Health Care Authority and McBride agree there is a genuine dispute of material fact on the
McBride contends that the emergency-room nurses breached the standard of care on July 10 and July 11 by failing to take steps to prevent TEN; failing to review records from McBride's prior admissions; failing to obtain an accurate and complete medical history; and failing to timely and accurately chart medications that McBride had been administered and prescribed. The Health Care Authority rejects each theory. While there is a genuine dispute of material fact as to whether the nurses breached the standard of care by failing to chart McBride's medications timely and accurately and whether that breach caused McBride's illness, summary judgment will be granted in favor of Houston County Health Care Authority on the rest of these theories.
McBride's first theory—that the nurses failed to take steps to prevent the development of TEN—appears to be more of an umbrella characterization than a separate theory of how the nurses breached the standard of care. Put differently, the other three theories describe how the nurses' breach of the standard of care led to the end result of TEN. The court therefore rejects this umbrella theory.
Next, the Health Care Authority argues that failure to review records in an emergency-context does not breach the standard of care. While the failure to examine records from a month earlier does seem concerning, McBride does not mention this theory in her opposition brief, much less point to expert testimony to establish the standard of care. McBride has therefore abandoned this theory, and summary judgment will be granted in favor of the Health Care Authority.
McBride's third theory is that the nurses breached the standard of care by failing to ask about McBride's medication. However, as the Health Care Authority contends, there is no factual dispute on this issue. In her deposition, McBride testified that she does not remember if the emergency-room nurses asked her about her medication.
There, is, however a genuine dispute of material fact about what the nurses did with the information that McBride was taking Lamictal—that is, whether they breached the standard of care by failing to put McBride's medications in the medical charts. Although McBride does not present her own expert on this issue, one of the emergency-room nurses for the medical center testified that, if a patient were to tell a nurse about her medication, the nurse would breach the standard of care if she did not include that in the chart.
The Health Care Authority argues that it should be granted summary judgment because, even though one of its nurses testified that failure to chart medications would be a breach of the standard of care, this nurse never said that any of the emergency-room nurses actually breached this standard. It points to precedent requiring an expert to establish both the standard of care and its breach.
Although a plaintiff in a medical-malpractice suit generally has to use expert testimony to establish breach and causation, Alabama courts have acknowledged exceptions where a plaintiff provides other assurances that her theory of negligence and causation is not pulled out of thin air. Such assurances can include common sense, such as when a foreign object is found in a patient's body post-surgery, or where an authoritative textbook on the issue makes an expert unnecessary.
While a lay jury would not know intuitively that it is the standard of care to chart medications, it could understand evidence of a breach—that is, a chart that does not list the medication—without an expert. If, as in this case, both parties agree that a certain action, which is not technically complicated, would violate the standard of care, and all that is left is a factual question whether the nurses took this action, there is no need for a separate expert to opine on the issue. In other words, the jury may need an expert to establish the standard of care for charting medications but does not need an expert to apply it in this case.
The logic behind the exception for medical treatises bolsters this reasoning. As noted above, Alabama law allows an exception to expert testimony where the plaintiff can identify an authoritative text or treatise that establishes the proper procedure. Of course, the text or treatise does not comment on the case at issue; instead, courts are willing to allow the text or treatise in lieu of an expert on the standard of care and then let the jury decide if this standard was violated. When the standard is comprehensible, courts do not require a second expert on breach.
Finally, the Health Care Authority contends that the actions of the emergency-room nurses did not cause McBride's condition to deteriorate. However, these nurses breached the standard of care by failing to chart that McBride was taking Lamictal, and that failure could have easily led the doctors to miss the potential diagnosis of SJS or TEN because the doctors could not make the correct connections among her symptoms, Lamictal, and the resulting SJS or TEN. There is therefore a genuine dispute whether this failure to chart probably caused a delay in diagnosis of McBride's SJS and TEN.
Pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment, McBride asserts that Correctional Officers Johnson and McCory as well as the City of Dothan violated her constitutional rights by being deliberately indifferent to her serious medical needs while in custody.
McBride sues Correctional Officers Johnson and McCory in their individual capacities, as well as the City of Dothan for its custom or policy of denying or delaying treatment to inmates with serious medical needs.
Correctional Officers Johnson and McCory raise the defense of qualified immunity to the claim against them. However, for the reasons described below, McBride has established a genuine dispute of material fact regarding their entitlement to qualified immunity.
The doctrine of qualified immunity insulates government agents from individual liability for money damages for actions taken in good faith pursuant to their discretionary authority.
"To invoke qualified immunity, the official first must establish that he was acting within the scope of his discretionary authority" when the alleged violation occurred.
The correctional officers first contend that they were not deliberately indifferent to McBride's serious medical needs while she was in jail.
"In regard to providing pretrial detainees with such basic necessities as food, living space, and medical care the minimum standard allowed by the due process clause is the same as that allowed by the eighth amendment for convicted persons."
A "serious medical need is considered one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention."
In this case, McBride's psychiatrist, defendant Karumanchi, knew her condition and, taking the evidence in the light most favorable to McBride on this claim, told the jail officer that she should be brought back to the hospital if her condition worsened. "Put another way, the physician found that [McBride's] condition, were it to worsen, would be a serious medical need requiring treatment."
The next question is whether the correctional officers were deliberately indifferent to her serious medical need. McBride "can prove deliberate indifference either by producing evidence demonstrating that necessary medical treatment was delayed for non-medical reasons or by showing that public officials knowingly interfered with a physician's prescribed course of treatment."
Johnson and McCory argue that they were not personally aware of McBride's serious medical need and that, even if they had been, the jail took McBride to doctor's appointments whenever she requested. As these defendants point out, "imputed or collective knowledge cannot serve as the basis for a claim of deliberate indifference. Each individual Defendant must be judged separately and on the basis of what that person knows."
This court's previous decision in
This case bears a striking resemblance to
Last, taking the evidence in the light most favorable to McBride, the court concludes that there is a genuine dispute of material fact as to whether Correctional Officers Johnson and McCory's deliberate indifference to McBride's medical needs caused her injuries. While a delay in medical treatment can constitute deliberate indifference, "an inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed."
Therefore, McBride has established a genuine dispute of material fact as to whether the correctional officers violated her constitutional rights. The court next addresses whether there is clearly established law that Johnson and McCory's actions violated her constitutional rights.
For the law to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violated that right."
As a threshold, any reasonable official would understand that a constitutional violation may occur when "officials knowingly interfere with a physician's prescribed course of treatment."
As explained above, Johnson and McCory heard McBride screaming and did not return her to the hospital immediately when her condition deteriorated. Such knowing interference with a doctor's prescribed course of treatment—to return her to the hospital—is a constitutional violation under clearly established law. Therefore, there is a genuine dispute of material fact regarding whether Johnson and McCory should receive qualified immunity.
The City of Dothan moves for summary judgment, arguing that McBride has not created a genuine dispute of material fact as to whether its provision of medical care to inmates constituted an unconstitutional policy or custom. The court agrees and grants summary judgment in favor of the city on this deliberate-indifference claim.
To hold a municipality liable under § 1983, a plaintiff must show that the municipality had a policy or custom of unconstitutional activity.
McBride maintains that the City of Dothan has three customs that are unconstitutional: (i) the city does not provide for adequate funding and staffing of medical personnel in the jail; (ii) the city inadequately trains jailers to recognize and respond to medical needs or prisoners; and (iii) the city routinely fails to take prisoners to the medical center when they need treatment.
The first two theories are easily rejected. As to the first theory, "it is difficult to see what constitutional guarantees are violated" by the policy of taking inmates to a hospital for medical treatment rather than having on-site medical personnel.
McBride's final theory is that, even though the city had an official policy of taking prisoners in the city jail to the hospital for medical needs, it had a custom of failing to do so. To show a custom, McBride first points to the affidavit of a prisoner, jailed in June and July 2012, that states, "I have observed other detainees of the City of Dothan Jail in clear need of medical attention and who requested medical attention from jailers and administrators. Jail staff and administrators, however, ignored these request [sic] for medical attention. . . . This was common practice and custom of the jail." Aff. of Aquanda Critten (doc. no. 172-5). This affidavit fails to provide any details about how many prisoners were not taken to the hospital or the severity of the prisoners' conditions. "To have any probative value, affidavits must be supported by specific facts, not conclusory allegations."
In addition to the affidavit, McBride also cites four legal complaints about the Dothan City Jail over the past eight years. Two of these have nothing to do with medical care. Compl. of Terence Pouncey (doc. no. 172-7) at 3-4 (contending that McCory placed him in a cell where he had known enemies, putting him in danger); Compl. of Andrew Keith Berkley (doc. no. 172-8) at 3 (alleging cruel and unusual punishment because he was being jailed for failing to make court-ordered payments). That leaves two cases with facts from 2006 and 2008, in which the judges held on summary judgment that there was a genuine dispute of material fact regarding whether the city failed to provide adequate medical treatment to prisoners in the local jail.
Because McBride has not shown a policy or custom of deliberate indifference, her § 1983 claim against the City of Dothan fails.
The City of Dothan, McCory, and Johnson also move to dismiss the negligence claim, arguing that they provided the proper treatment to McBride and that, even if they had, it did not cause her injury.
To the extent that McBride contends that the city's and the correctional officers' failure to give McBride Lamictal at the right time or that their failure to provide her other medications caused her injury, the claim fails. McBride does not point to any evidence indicating that the city's failure to fill other pills besides Lamictal or its failure to give McBride Lamictal at the right time caused her health to deteriorate.
However, the argument that the city and its correctional officers were negligent by failing to take McBride to the hospital survives. This claim mirrors the deliberate-indifference claim discussed above. As discussed above, taking the evidence in the light most favorable to McBride, jail staff, including Johnson and McCory, did not follow the doctor's orders and this delay worsened her injury.
Summary judgment will be entered in favor of defendant Rajendra Paladugu in all respects. As to the remaining defendants, summary judgment will be entered in their favor only in part as set forth in this opinion. An appropriate judgment will be entered accordingly.
The court has already found that Johnson and McCory participated in the alleged violation by failing to respond to what they knew was McBride's serious medical need. Accordingly, it need not address the supervisory-liability theory at this time.
Though it does not bear on the analysis in this case, the court notes that the policy on filling prescription medication is disturbing. According to the jail administrator, Mamie McCory, the policy is to fill prescriptions only for life-sustaining medication. McCory Dep. (doc. no. 172-17) at 30:16-21. That, of course, begs the question: Who determines what is life-sustaining? According to McCory, the jail need only take one of three actions to make this determination: (i) looking in the "MVR" (which is not defined in the deposition); (ii) calling the pharmacy;
To repeat,
