OWEN, Circuit Judge.
Carrie Rahat Sama, who was incarcerated in the custody of the Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID), sought damages under 42 U.S.C. § 1983. She asserted that her constitutional rights were violated when her ovary and lymph nodes were removed without her consent during a radical hysterectomy. The district court granted summary judgment in favor of the physicians who performed the surgery, holding they were entitled to qualified immunity. The district court also denied Sama's motion to recuse, submitted to the court after she filed her notice of appeal. We affirm the district court's judgment.
Sama (TDCJ # 1362948) was incarcerated in the TDCJ-CID at the Lane Murray Unit in Gatesville when she was diagnosed with a form of cervical cancer known as endocervical adenocarcinoma in situ, CIN III (Cervical Intraepithelial Neoplasia), a malignant condition that is thought not to have spread beyond the most superficial layer of the cells in the cervix. She was referred to the Benign GYN Service at the University of Texas Medical Branch (UTMB) and underwent a cervical conization, a surgical procedure, which revealed a more extensive cancer than had initially been suspected. In discussing the treatment plan with UTMB physicians, Sama, who was then thirty-six years of age, provided her medical history. The notes of her medical history indicate that she told UTMB personnel that she had previously had biological children through a surrogate and that she did not want her left ovary removed if a hysterectomy was warranted. She desired to preserve the possibility of conceiving again.
Sama was referred to the GYN Tumor Service, at which time Dr. Edward Hannigan, the Gynecologic Oncology Fellowship Program Director for the Department of Obstetrics & Gynecology at UTMB, became involved in her case. A resident physician under Dr. Hannigan's supervision evaluated Sama, and the assessment was malignant neoplasm of the endocervix. It is undisputed that the appropriate treatment for her malignant tumor was a radical hysterectomy.
During a pre-operative consultation, a resident physician and the attending faculty physician discussed with Sama the planned procedure, risks, and benefits. Lymph node dissection, which is part of the treatment of cervical cancer and is necessary for pathological evaluation, was included in the treatment plan. During the consultation, Sama recounted that she had previously had eight abdominal surgeries for lysis of adhesions, which is the removal of scarring, and two years earlier, her right ovary had been removed. She also reiterated her desire to conserve her remaining ovary for future fertility. The physicians agreed they would attempt to do so, but according to the outpatient clinic note, Sama "underst[ood] that if [the ovary] is grossly abnormal" or "if anatomic constraints limit[] the ability to save her ovary," it would be removed.
On the date of the surgery, prior to the operation, Sama was further counseled by Dr. Michelle Benoit and another physician. The pre-operative notes again indicate that
Sama does not dispute that she consented to a radical hysterectomy. She maintains, however, in a declaration submitted in support of her summary judgment response, that she made it clear "with each and every one of the team of [physicians]" that she would not consent to the removal of her ovary.
Sama signed a consent form authorizing the following procedures: "Radical hysterectomy and any other indicated procedures, lymph node dissection." Sama also initialed Item 7 on a List of Risks incorporated into the form, which provides in pertinent part: "I (we) understand that a hysterectomy is a removal of the uterus through an incision in the lower abdomen or vagina. I also understand that additional surgery may be necessary to remove or [re]pair other organs, including an ovary, tube, appendix, bladder, [re]ctum, vagina or ureter." Items 7A and 8 were marked (presumably as relevant to Sama's surgery), but were not initialed by Sama. Those items advised of additional risks, including sterility associated with a total abdominal hysterectomy and with fallopian tube and ovarian surgery. According to Sama, she refused to initial these items because she "would not sign any permits that allowed the removal of my ovary." The procedures to be performed were handwritten on blank lines in the form, and Sama contends they were added to the form after she signed it.
Benoit, a resident surgeon, performed the surgery, and Hannigan was present throughout the procedure as the attending faculty physician. The surgery was difficult and lengthy because of "significant and dense adhesions" from Sama's prior surgeries. The physicians observed that the left ovary was grossly abnormal with multiple cysts, and it had adhered to surrounding structures in Sama's abdominal cavity. The surgeons were concerned with the risk of malignancy in the abnormal-appearing ovary and also determined that removal of the ovary was necessary "to get to the lymph node basin and perform the parametrectomy (radical portion of the hysterectomy)." Benoit and Hannigan concluded that the ovary was non-functional and that its removal was medically necessary and in Sama's best, long-term interest. The ovary was removed.
The surgical pathology report revealed no evidence of persistent local disease or metastatic cancer. The report did reflect an abnormality of the left ovary—hemorrhagic corpus luteum—and although Hannigan could not "state conclusively that Ms. Sama's ovary did not remain hormonally active, with the ability to produce eggs," he could state, "with reasonable medical certainty, that because of the dense fibrosis and adhesions, it is very unlikely that any egg harvesting could ever be performed."
During a second follow-up appointment four months after the surgery, Sama complained for the first time of leg weakness that had persisted since the surgery. She claims this condition was caused by the removal of the lymph nodes during surgery. Hannigan stated that any transient nerve damage resulting from the procedure would have been apparent immediately, and none was noted. In addition, the treating physician at the follow-up appointment concluded the symptoms likely were not related to any operative or post-operative causes. Sama stated in her declaration that a physician has since told her the
Sama sued Benoit, Hannigan, and several other physicians and officials under 42 U.S.C. §§ 1983 and 1985 for violating, and conspiring to violate, her constitutional rights under the Eighth and Fourteenth Amendments. She alleged the removal of her ovary without her consent violated her right to refuse unwanted medical treatment and that the defendants were deliberately indifferent to her serious medical needs. The district court granted Benoit and Hannigan's motion for summary judgment and dismissed the case with prejudice, holding Sama had failed to rebut the physicians' assertion of qualified immunity by showing the existence of a disputed fact issue material to determining whether the physicians were deliberately indifferent under the Eighth Amendment. The district court did not address Sama's claim of a separate Fourteenth Amendment violation involving her right to refuse unwanted medical treatment.
As an initial matter, we note that, in addition to Benoit and Hannigan, Sama named six other defendants in her complaint. As part of its screening of the case under 28 U.S.C. § 1915A, the district court did not order that these six defendants be served with process or respond to the complaint.
Sama contends the district judge should have recused himself from this case because he "has a known bias on women[']s issues." Sama first raised this issue in one of two post-judgment motions filed in the district court after she appealed the judgment. The district court determined that it lacked jurisdiction to rule on the motions and held that, to the extent it had jurisdiction over Sama's recusal motion, it was untimely and without merit. Sama did not file a separate notice of appeal from that order, and we accordingly lack jurisdiction to review it.
We may dispose of two of Sama's claims on waiver grounds. In her complaint, she alleged that Benoit's and Hannigan's conduct violated her equal protection rights under the Fifth and Fourteenth Amendments. However, she failed to present any argument or authority in support of this claim on appeal. Accordingly, the issue is waived.
Sama contends that the district court erred in failing to hold a hearing on the motion for summary judgment. District courts are not required to hold an oral hearing on a summary judgment motion,
Sama also complains that dismissal was too severe a sanction and that a less restrictive measure would have been proper. However, the district court did not dismiss the case as a sanction. The district court dismissed the case because of its determination that the defendants were entitled to qualified immunity based on the summary judgment evidence presented.
With regard to Sama's claim that Benoit and Hannigan violated her Eighth Amendment right to receive adequate medical care, the district court held that Sama failed to show the existence of a disputed material fact issue as to whether Benoit and Hannigan were deliberately indifferent to her serious medical needs and therefore failed to rebut their affirmative defense of qualified immunity. We agree.
"A prison official violates the Eighth Amendment's prohibition against cruel and unusual punishment when his conduct demonstrates deliberate indifference to a prisoner's serious medical needs, constituting an `unnecessary and wanton infliction of pain.' "
Sama essentially contends the surgery was unnecessary, as the pathology reports revealed that the removed ovary and lymph nodes were not cancerous, and that she now suffers from continued leg weakness resulting from the removal of her lymph nodes. At best, this constitutes a disagreement with her treatment and a claim of medical malpractice. It is undisputed that Sama was timely examined, diagnosed, and treated. The physicians involved in Sama's care exercised their reasoned medical judgment and determined
Sama also asserts that Hannigan and Benoit violated her Fourteenth Amendment rights by removing her ovary and lymph nodes without her consent. Unlike her Eighth Amendment claim of deliberate indifference to her serious medical needs, this claim asserts a violation of substantive due process as guaranteed by the Due Process Clause of the Fourteenth Amendment,
Qualified immunity generally shields government officials performing discretionary functions, such as the administration of medical care, "`from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"
For a right 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 violates that right."
Exercising our discretion under Pearson v. Callahan, we may analyze and resolve this issue under the "clearly established" prong of the qualified immunity test.
As noted above, in Cruzan, the Supreme Court addressed the scope of a person's liberty interest in refusing unwanted treatment. The Court explained, "[D]etermining that a person has a `liberty interest' under the Due Process Clause [in refusing unwanted treatment] does not end the inquiry; `whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.'"
Unlike her conclusional assertions about whether she consented to removal of her lymph nodes,
We also note that, as a factual matter, her alleged nonconsent to the removal of her ovary was qualified by her purpose for withholding consent, which was to attempt to harvest eggs at some point in the future; it was not a binary "yes" or "no." When, during surgery, the physicians observed the scar tissue, cysts, and abnormality of Sama's ovary, they relied on their medical judgment to conclude that the ovary was nonfunctional. The dissent focuses on the fact that the pathology report found no malignancy in the ovary and that the physicians could not state conclusively that the ovary could not have produced eggs. But this overlooks the more salient fact that during the surgery the physicians saw "dense fibrosis and adhesions" and determined that because of these conditions, "it [was] very unlikely that any egg harvesting could ever be performed." Sama's condition in this regard is undisputed, and the surgeon's medical judgment and conclusion about the feasibility of harvesting an egg in the future is unchallenged. The physicians did nothing to foreclose Sama's ability to have a biological child: Sama's pre-existing condition prevented her from having a biological child. The reason that Sama gave for her desire to retain her ovary no longer obtained. The physicians' removal of Sama's ovary was arguably within her grant of consent in light of this circumstance. At the least, this leaves the general principle that an inmate may refuse medical treatment sufficiently uncertain in application to trigger qualified immunity.
There is an additional overlay. The ovary's continued presence in Sama's body was, in the physicians' judgment, life-threatening. The affidavit of one of the physicians states that the abnormal appearance of the ovary "raised the possibility of metastic disease in the ovary, which could not be ruled out until the final Pathology report was obtained." This exercise of professional judgement signified that, at that point, the physicians were not frustrating her consent. Although her declaration in support of her response to the motion for summary judgment states that she told the surgeons that she did not want her ovary removed under any circumstance, such a statement was not the equivalent of stating that she would rather die than have an ovary removed, as the dissenting opinion suggests. She assented to a radical hysterectomy that she knew might well entail removal of her ovary. She did not express any desire to allow cancer to take its course and end her life. To the contrary, based on what she communicated
In light of all of these circumstances, we cannot say that the law is, or was at the time of the defendants' conduct, clearly established such that a reasonable official in Benoit's and Hannigan's position would understand that their conduct violated Sama's Fourteenth Amendment due process rights. Sama had the burden to negate qualified immunity. Accepting her assertions as true, and considering the other undisputed facts in the record before us, Sama has not cited, and we have not located, a Supreme Court or circuit court decision holding that a violation occurred under similar circumstances,
With great respect, the dissenting opinion misunderstands the law of qualified immunity. The dissenting opinion suggests that we remand this case to the district court so that it may "address any
The dissenting opinion asserts that Sama was not "required to imagine every possible argument a defendant could make—especially, such an unfathomable argument as that doctors can act at will and contrary to a patient's consent—and counter it."
In sum, the law governing Fourteenth Amendment claims involving unwanted medical treatment in the prison context is far from certain. Given the dearth of case law and the existence of at least some case law supporting the position that Hannigan's and Benoit's conduct was not contrary to clearly established law, Sama has failed to rebut the defendants' entitlement to qualified immunity on her Fourteenth Amendment claim, and summary judgment was appropriate.
For the foregoing reasons, the district court's judgment is AFFIRMED.
HAYNES, Circuit Judge, concurring and dissenting:
I concur in the majority opinion's disposition of this appeal with the exception of Section VII, addressing the claim under the Fourteenth Amendment, as to which I respectfully dissent.
Initially, on procedural grounds, I disagree with reaching the Fourteenth
As the majority opinion acknowledges, under the substantive due process clause of the Fourteenth Amendment, a competent person has a liberty interest in refusing unwanted medical treatment. See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (finding that "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment"); Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990); Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 462 n. 10 (5th Cir.2001) ("There is no question that a competent person has a liberty interest in refusing unwanted medical treatment.") (internal quotation marks, ellipsis, and citation omitted). Sama's complaint alleged that she refused to consent to the removal of her ovary under any circumstances and complained of several alleged constitutional violations, including violations of the Fifth, Eighth, and Fourteenth Amendments. She further alleged that "[t]he wrongful removal of her ovary without her consent and in violation of the agreed upon treatment plan [constituted a] violation of her civil and constitutional rights[] to refuse non-court ordered treatments." In her response to the doctors' summary judgment motion, Sama cited Cruzan and argued that she had a constitutional liberty interest in refusing unwanted medical treatment as well as the right to die if she so desired. Indeed, contrary to the majority opinion's assertion at pages 15-16, Sama fervently argued in her response that she was willing to "risk death by the leaving of an ovary that might have to be later removed due to malignancy, in order to have her own child," and further argued in her surreply that she "had a right to refuse those parts of the treatment, even if it meant choosing the right to die."
Neither the motion for summary judgment nor the district court's order granting that motion addressed Sama's claim that the doctors disregarded her lack of consent to the removal of her ovary and thereby violated her Fourteenth Amendment due process rights. Indeed, the doctors have never argued that they could remove her ovary without consent. To the contrary, instead of arguing that they did
The district court did not address the Fourteenth Amendment claim at all, analyzing Sama's claims only under the Eighth Amendment deliberate indifference standard. Accordingly, I conclude on procedural grounds that we should remand the case to the district court with regard to Sama's Fourteenth Amendment claim.
The majority opinion concludes that "[b]ecause Sama did not meet her burden of demonstrating Benoit's and Hannigan's conduct was not objectively reasonable in light of clearly established law, the district court did not err in dismissing the case." Maj. Op. at 592. Furthermore, although the majority opinion acknowledges a clear constitutional right for a prisoner to refuse medical treatment, it finds that the doctors are entitled to qualified immunity for the unauthorized removal of Sama's ovary because Sama had arguably authorized
That there be another case exactly like this one is not required to deny qualified immunity. See Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) ("We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate."); Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Moreover, although we should certainly be relieved that there is not another case exactly like this one, even the very precedents cited in the majority opinion clearly establish that a prisoner-patient has the right to refuse treatment. Maj. Op. at 591 n.13. Given that body of law, it is difficult to see how it is "objectively reasonable" to think that one is not violating the rights of a patient as adamant as Sama claims she was about what she did and did not authorize.
Indeed, even the doctors themselves have not made the argument utilized by the majority opinion. The doctors, perhaps in consideration of their own medical ethics
The doctors thus have not, could not, and indeed, dared not, argue that a doctor providing treatment to a prisoner-patient is free to roam about the prisoner-patient's body during surgery, exercising his "medical judgment" against the expressed wishes of the prisoner-patient. Instead, they argued that she consented (or that they had a good faith belief that she did), a point as to which the majority opinion concedes (or at least accepts for argument's sake) there is a fact issue. With that said, it is bewildering that such bedrock principles of medical ethics and legal-medico jurisprudence that there be consent to treatment and respect for a patient's right to choose his course of treatment
A pro se plaintiff's pleadings are to be construed liberally with all well-pleaded allegations taken as true. Perez v. United States, 312 F.3d 191, 194-95 (5th Cir.2002) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding that allegations in a pro se complaint are to be held "to less stringent standards than formal pleadings drafted by lawyers")); Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir.1993) (citing Brinkmann v. Johnston, 793 F.2d 111, 112 (5th Cir.1986)). In addition, on summary judgment, "all evidence produced by the nonmovant is taken as true and all inferences are drawn in the nonmovant's favor." Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 349 (5th Cir.2001).
Applying those standards, Sama's evidence, as the majority opinion notes, is that she vociferously and clearly stated that she did not want her ovary removed because she fiercely desired at least the chance to have a biological child born through a surrogate.
Here, it is undisputed that the doctors did just the opposite of Sama's wishes and removed Sama's ovary and, thereby, extinguished her last hope of conceiving her own biological child.
The majority opinion's argument presupposes that Sama would have consented to the removal of her ovary if she had known that it was "nonfunctional" or (ultimately) "life-threatening." These ruminations turn the summary judgment review standard on its head. Rather than taking Sama's evidence as true, the majority opinion creates an implied consent by directly contravening Sama's position and evidence and ignoring Sama's claim that she refused consent "no matter what" and that she was willing to risk needing future surgical procedures and even death to conserve her one remaining ovary. Moreover, a highly disturbing aspect of this case is that despite the doctors' exercise of "considered medical judgment" and their self-serving assessments that it was "unlikely that any egg harvesting could ever be performed," even the doctors themselves admitted that they could not "state conclusively that Ms. Sama's ovary did not remain active, with the ability to produce eggs." Furthermore, the pathology report on the ovary whose continued presence in Sama's body was allegedly life-threatening in the doctors' judgment, revealed that the ovary was not cancerous.
In addition, the core of the issue at bar is the liberty interest in refusing unwanted medical treatment, even life-saving medical treatment. Accordingly, the ultimate purpose for Sama's desire for ovary conservation is irrelevant if we take as true that Sama refused consent to ovary removal "under any circumstances." The majority opinion's emphasis on the viability of the ovary or the eventual threat that it may have posed to Sama's life as bringing the removal of Sama's ovary "within her grant of consent" cannot be squared with the prisoner-patient's liberty interest in refusing unwanted medical treatment.
Given Sama's clear instructions not to remove the ovary, we do not have a murky situation of a doctor having consent to perform a specific surgery but then some emergency arises necessitating some other form of surgery. See Dunham v. Wright,
The effect of the majority opinion's conclusion today is that, once a patient consents to at least some treatment, all treatment is permissible so long as the doctor deems it necessary. What, then, is left of the right to refuse treatment? At the very least, Sama should be permitted to develop this issue in the district court. Furthermore, at this juncture, whether Sama is entitled to remand on her Fourteenth Amendment claim should not be diminished or influenced by her chances of obtaining damages at trial.
For the foregoing reasons, I respectfully dissent to Section VII of the majority opinion.
Furthermore, the majority opinion states that the assertion in Dr. Benoit's affidavit that "it was determined that the ovary had to be removed in order to reach and remove anatomic structures necessary to the performance of the radical portion of the hysterectomy" is uncontroverted. Maj. Op. at 593. However, review of the record shows that there was no medical emergency or necessity requiring removal of the ovary. Indeed, even the affidavit of Dr. Hannigan, Dr. Benoit's attending faculty surgeon, calls into question the claim that the ovary absolutely had to be removed for any reason: "[i]t was our opinion that there was no grossly viable—normal ovarian tissue, that the ovary was non-functional, and, therefore, the ovary was removed.... It was our reasoned medical judgment that the best long-term outcome for the patient would be removal of the ovary at the time of this procedure. It was in the patient's best interest to remove the ovary." Moreover, Dr. Hannigan, despite the incentive to state otherwise, never asserts that removal of the ovary was necessary to complete the radical portion of the hysterectomy. Thus, not only was removal of the ovary not the result of some life-threatening emergency or imminent situation, but also the suggested necessity of removal is indeed in doubt.
THE AMERICAN MEDICAL ASSOCIATION, ENCYCLOPEDIA OF MEDICINE 422 (Charles B. Clayman, MD ed., 1989).
