Bown v. Reinke et al
Filing
121
MEMORANDUM DECISION AND ORDER It is hereby ORDERED, that the motion for summary judgment (docket no. 100 ) and the motion for protective order (docket no. 108 ) are DENIED. The motion to stay or for additional discovery (docket no. 102 ) is GRANTED IN PART AND DENIED IN PART. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WILLIAM A. BOWN,
Plaintiff,
Case No. 1:12-cv-00262-BLW
vs.
MEMORANDUM DECISION
AND ORDER
BRENT D. REINKE; RONA SIEGERT;
RANDY E. BLADES; JIMMIE H.
CROSBY; DANIEL METTIE; BECKY A.
BLAKE; RONALD D. PIXLER;
TIMOTHY J. RICHARDSON; CORIZON,
INC., fka CORRECTIONAL MEDICAL
SERVICES, INC., a Missouri corporation;
KAREN B. BARRETT, PA; APRIL
DAWSON, MD; CASSIE RICHINS, LPN;
and JOHN and JANE DOES 1-10,
Defendants.
INTRODUCTION
The Court has before it defendants’ motion for summary judgment and motion for
protective order, and plaintiff’s motion to stay proceedings and for more discovery. The
Court heard oral argument on the motion for summary judgment on June 28, 2016, and
took the motions under advisement. For the reasons explained below, the Court will (1)
deny the defendants’ motions and (2) grant in part the plaintiff’s motion, allowing more
discovery but finding no need to stay these proceedings given the denial of the motion for
summary judgment.
Memorandum Decision & Order – page 1
FACTUAL BACKGROUND
On a Saturday afternoon, plaintiff William Bown, an inmate at the Idaho
Maximum Security Institution (IMSI), complained to guards about a severe pain in his
left arm and a burning pain in his chest. An EKG showed he was having a heart attack,
but the failure of the jail to have anyone available during the weekend to interpret the
EKG meant that Bown was not transported to a hospital for hours. This delay, Bown
claims, resulted in permanent damage to his heart. He filed this lawsuit under § 1983 for
the violation of his Eighth Amendment rights.
Bown started having chest pains at about 1:00 p.m. on February 19, 2011. As the
pain intensified, he attempted to get help. He recalls that he “started screaming” and that
“[s]weat was just pouring out of me.” See Bown Deposition (Dkt. No. 105-1) at p. 73.
His pain was an 8 on a scale of 1 to 10, with 10 being the most intense pain.
He was taken to the prison’s medical unit where he was seen by Cassie Richins, a
licensed practical nurse. She telephoned Karen Barrett, the physician’s assistant on call,
and described Bown’s symptoms of chest pain, sweating, and nausea. See Richins
Deposition (Dkt. No. 105-3) at p. 65. Barrett recalls directing Richins to immediately
order an EKG and a blood enzyme analysis. See Barrett Deposition, (Dkt. No. 100-14) at
p. 74.
Richins performed an EKG at 2:17 p.m. The EKG consists of a graphic display of
the heart’s electrical activity and also includes a computer-generated statement
summarizing in printed words what is being displayed graphically. See EKG (Dkt. No.
105-5).
Memorandum Decision & Order – page 2
Richins was not qualified to interpret the EKG’s graphic display or to understand
the computer-generated summary. See Richins Deposition (Dkt. No. 105-3) at p. 65.
And Barrett was not available to read the EKG itself – she was not physically present at
the jail, and she testified that there was no way for Richins to transmit the EKG to her
that day. See Barrett Deposition, supra, at 97 (“there was no way I could see the EKG”).
It was not unusual for the prison to lack qualified medical personnel on-site during the
weekends. Dr. April Dawson, Corizon’s supervising physician, testified that it was
common on weekends to have no medical provider on site at the jail. See Dawson
Deposition (Dkt. No. 105-7) at pp. 30-32.
But Richins could telephone Barrett, and did so, reading her the computergenerated summary on the EKG print-out that stated as follows: “Sinus bradycardia.
Interior infarct. MS-Qwave and/or ST abnormality in second AVF. Possible acute.
Marked ST depression. Possible subendocardial injury. ST depression. Abnormal
EKG.” Id.
Barrett testified that interpreting EKGs is “just not an area that I’m real
comfortable in.” See Barrett Deposition, supra, at p. 27. When asked how often she
interprets EKGs, Barrett answered “I don’t.” Id. Instead, she testified that she could, in
theory, request an “over-read” – a doctor’s opinion – but had never actually made such a
request herself. Id. at pp. 25, 27.
At any rate, Barrett never saw – or requested to see – the EKG. If Barrett could
have seen the EKG, she would have ordered Bown transported to the hospital
immediately. Barrett knew enough to discern “ST elevations” on an EKG’s graphic
Memorandum Decision & Order – page 3
display, and to know that a patient with “ST elevations” should be transported
immediately to the hospital for emergency treatment. Id. at 82, 95-97. During her
deposition, Barrett was shown the EKG taken by nurse Richins – it was the first time
Barrett had seen it. Id. at p. 95, 97. Barrett quickly spotted the ST elevations and
testified that if she had seen the EKG when treating Bown, she probably would have
ordered him transported immediately, but also testified that “[t]here was no way I could
see the EKG.” Id. at p. 97. In other words, if the prison’s system simply had a way for
Richins to transmit the EKG to Barrett, Bown would have been transported immediately.
But that was not the case. The written computer-generated summary of the EKG
that nurse Richins read to Barrett over the phone did not mention ST elevations – they
were apparent only upon viewing the EKG itself. See Levin Deposition (Dkt. No. 105-4)
at p. 49. After hearing nurse Richins read the summary over the phone, Barrett asked
about blood enzyme lab results because “that was going to be my deciding factor,” and
also asked about Bown’s condition. Id. at p. 77. Richins said the blood test results had
not yet come in, and that Bown was sleeping. Id. Hearing that Bown was sleeping
“helped precipitate” Barrett’s decision to wait for the blood test results before
transporting Bown because in her mind, Bown “did not appear to be in any distress at that
point . . . .” Id. at pp. 77, 80.
But in fact Bown was in distress – he was having a heart attack. A blood clot had
blocked 100% of the blood flow in his right coronary artery. See Dr. Wetherly
Deposition (Dkt. No. 105-2) at pp. 8-9. The EKG taken by nurse Richins showed clearly
that Bown was having a heart attack, according to the treating cardiologist Dr. Graham
Memorandum Decision & Order – page 4
Wetherly, who reviewed the EKG during his deposition. Id. at p. 22 (“If this [Bown’s
EKG] had been faxed to me as a question, then I would have told the person who faxed it
to me that their patient was having an acute heart attack”).
But Barrett decided to wait before ordering Bown to be transported to the hospital
because (1) Bown was sleeping and did not appear to be under any distress, and (2) the
blood test results – which were crucial to Barratt’s analysis of whether Bown was
suffering a heart attack – would be done, she estimated, “within an hour or two max.”
See Barrett Deposition, supra, at p. 81. Richins had to draw Bown’s blood and then
transport it herself to the hospital for testing, a drive that took 30 minutes or so. The test
results would not be returned to Richins for “a couple of hours,” even if she had
requested – as she did here – that the testing be done “stat” or immediately. See Barratt
Deposition, supra, at pp. 45-46.
But there was a delay at the hospital that was conducting the blood testing, and
more hours passed. Nurse Richins finished her shift and was replaced by Chance Luster.
Luster told Barrett he saw ST elevations on Bown’s EKG, and that convinced Barrett to
stop waiting for the blood tests and transport Bown to the hospital immediately. Id. at p.
82. Almost five hours had now passed since Bown had been brought into the medical
unit. See Dr. Wetherly Deposition, supra, at p. 24.
At the hospital, Dr. Wetherly removed the blood clot and restored the flow of
blood. But in the five hours of delay between the first EKG done by nurse Richins and
the EKG done immediately upon Bown’s arrival at the hospital, there was “a substantial
Memorandum Decision & Order – page 5
amount of damage” to Bown’s heart, according to Dr. Wetherly. See Dr. Wetherly
Deposition, supra, at p. 24.
LITIGATION BACKGROUND
Bown filed this action under § 1983 claiming that his Eighth Amendment rights
had been violated by the delay in treatment for his heart attack. He sued (1) Brent
Reinke, Director of IDOC; (2) Rona Siegert, Health Service Director; (3) Randy Blades,
Warden (4) Jimmie Crosby, Deputy Warden; (5) Daniel Mettie, Corrections Officer; (6)
Becky Blake, Corrections Officer (7) Ronald Pixler, Corrections Officer; (8) Timothy
Richardson, Assistant Shift Commander; (9) Corizon Inc.; (10) Karen Barrett,
physician’s assistant; (11) April Dawson, and (12) Cassie Richins, LPN.
Bown later settled with Corizon Inc. (the provider of medical services at the prison
under a contract with the Idaho Department of Corrections) and the medical team
(Barrett, Dr. Dawson, and Richins). After the remaining defendants filed the motion for
summary judgment now before the Court, Bown agreed to the dismissal of the
Corrections Officers (Mettie, Blake, Pixler, and Richardson). That leaves the
administrative defendants as the only remaining defendants – Reinke (Director of IDOC),
Siegert (Health Services Director), Blades (Warden), and Crosby (Deputy Warden).
ANALYSIS
Bown has a constitutional right under the Eighth Amendment “to not have
officials remain deliberately indifferent to [his] serious medical needs.” Gibson v.
County of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002). To satisfy this
constitutional right, “jails must provide medical staff who are competent to deal with
Memorandum Decision & Order – page 6
prisoners’ problems.” Id. Bown alleges that the defendants failed to provide competent
medical staff to provide an immediate interpretation of EKGs on weekends, and that this
failure was the cause of his significant injuries.
The defendants counter in their summary judgment motion that Bown is really
complaining about a missed diagnosis, a complaint that might constitute malpractice but
is not a constitutional violation. The defendants cite well-established case law that the
Eighth Amendment is not violated by medical malpractice, or even gross negligence. See
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
To determine whether this case hinges on a missed diagnosis or something else,
the Court must view the evidence in a light most favorable to Bown. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). This means that the evidence submitted by Bown
“is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.
Viewed in this light, the evidence tends to show that Bown’s injuries were caused
by a systemic failure, not a missed diagnosis. The systemic failure was in (1) having no
qualified person available during weekends to immediately view and interpret EKGs, and
(2) having no transport protocol in place taking into account the lack of expertise
available during weekends.
The issue is whether a reasonable juror could find that these systemic failures to
provide medical care satisfy the deliberate indifference test that Bown must prove to
prevail on his § 1983 claim. That test has two prongs. Under the first, Bown must show
that the failure to provide immediate EKG interpretation “could result in further
significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439
Memorandum Decision & Order – page 7
F.3d 1091, 1096 (9th Cir. 2006). Under the second prong, Bown must show that the
prison administrators “knew of and disregarded the substantial risk of harm and failed to
act despite this knowledge.” Lemire v. Cal. Dept. of Corr. & Rehab., 726 F.3d 1062,
1074 (9th Cir. 2013). This second prong is a subjective test, and “evidence of
obviousness may present a disputed fact to defeat summary judgment.” Harrington v.
Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015).
There is no question that the failure to provide immediate EKG interpretation
could result in significant injury. The testimony from two experts, Drs. Levin and
Wetherly, demonstrates that (1) an EKG is the first test ordered when a patient presents
with classical physical symptoms like Bown did here; (2) the results of the EKG are
crucial in diagnosing a heart attack, and (3) the EKG must be administered and
interpreted immediately because quick treatment can save the heart muscle from being
destroyed. See Wetherly Deposition, supra, at pp. 14-18; Levin Deposition, supra, at p.
54. Time is of the essence because every minute that the blood clot restricts the flow of
blood to the heart results in lost heart muscle that cannot be recovered. Id.
The second prong requires Bown to prove that the prison administrators knew of
this substantial risk but failed to provide a means for immediate EKG interpretation (or
failed to provide a transport protocol that took into account the lack of expertise).
Although direct evidence of a person’s mental state rarely exists “it is not always
necessary to prove a person’s subjective awareness, as this inquiry is subject to
demonstration in the usual ways, including inference from circumstantial evidence.”
Memorandum Decision & Order – page 8
Gibson, 290 F.3d at 1190. As discussed above, “evidence of obviousness may present a
disputed fact to defeat summary judgment.” Harrington, 785 F.3d at 1304.
The substantial risk of injury or death caused by a lack of immediate EKG
interpretation was obvious to the prison administrator defendants. It is obvious that
inmates have heart attacks on weekends and will need the immediate evaluation that can
be obtained with an EKG. It is obvious that an inmate having a heart attack cannot wait
for hours, or a day, to obtain an EKG interpretation from a cardiologist. While blood
testing can confirm an EKG reading, it is undisputed in this record that it would take
hours to obtain blood test results. It is obvious that an inmate suffering a heart attack
cannot wait for hours while his blood is being tested. In other words, it was obvious to
prison administrators that blood testing could not substitute for the immediacy of an EKG
reading. Finally, anticipating this lack of expertise on weekends, it is obvious that a
transport protocol must be in place to ensure quick transport to a hospital when certain
classic signs of a heart attack are present, taking into account the security needs of the
prison.
Despite this obvious risk of substantial injury or death, the prison administrator
defendants maintained a system that provided no opportunity on weekends for an
immediate EKG interpretation. Defendants argue, however, that they anticipated this
problem and provided a system to get quick interpretations (called “over-reads”) of an
EKG by a cardiologist: A nurse could press a button on the EKG machine and transmit
the EKG to a cardiologist for interpretation. See Dawson Deposition (Dkt. No. 105-7) at
pp. 30-32. Defendants argue that this system is sufficient under the Eighth Amendment,
Memorandum Decision & Order – page 9
and that they cannot be held liable for the failure of the medical staff to use the system as
intended.
But there are significant questions of fact over whether this system mitigated any
risk whatsoever. While the defendants point to Barrett’s testimony that an over-read
might take “30 minutes to a couple of hours,” see Barrett Deposition, supra, at p. 63, it is
obvious that an inmate having a heart attack might suffer substantial harm if he has to
wait a “couple of hours.”
Moreover, this time estimate is contradicted by Dr. Dawson and Barrett herself.
Dr. Dawson testified that the cardiologist’s interpretation “is not something that comes
back that day generally. It’s something that is going to come back the next day.” Id.
Barrett testified at another portion of her deposition that she (1) had never requested an
over-read, and (2) did not know how long it would take to obtain an over-read. Id. at p.
25. This contradictory testimony creates issues of fact.
Furthermore, the Court was provided with no protocols concerning the use by
prison medical staff of this button feature on the EKG machine. Most importantly, did
the system protocols require the medical staff to press the button in every case? Did
Richins or Barratt violate prison policies by not transmitting the EKG to a cardiologist?
Nothing in the record allows the Court to answer these questions as a matter of law.
Moreover, there is a lack of evidence defining this “system.” Supposedly,
pressing the button transmits the EKG immediately to a certain cardiologist. Who is
that? Does the prison medical staff just wait for the cardiologist to respond? Or does the
prison staff call the cardiologist’s office to check on his/her availability? What if the
Memorandum Decision & Order – page 10
cardiologist is not available? Does the lack of qualified evaluation trigger more
immediate action to transport the inmate to the hospital? Under what circumstances?
Without any evidence on the prison’s protocols governing use of the button feature on the
EKG machine, the Court cannot adopt defendants’ argument that, as a matter of law, the
prison had a system in place for emergency treatment that complies with the Eighth
Amendment.
In conclusion, the prison administrators’ inaction in the face of such an obvious
threat creates an issue of fact on the subjective prong of the deliberate indifference test
and warrants denial of the motion for summary judgment. Gibson, 290 F.3d at 1189-91
(reversing grant of summary judgment because reasonable juror could find that jail’s
failure to provide urgent medical evaluation for arrestee constitutes deliberate
indifference).
The defendants argue, however, that they are entitled to qualified immunity as a
matter of law. The Court disagrees. It was well-established at the time of this incident
that “jails must provide medical staff who are competent to deal with prisoners’
problems.” Id. at 1189. It was also well-established that inaction by prison
administrators in the face of life-threatening and obvious risks to inmates violates their
Eighth Amendment rights. Farmer v. Brennan, 511 U.S. 825, 842 (1994). At the time of
Bown’s heart attack, these rights were clearly established and entitled Bown to qualified
medical emergency treatment for his heart attack. As set forth above, there are
substantial questions of fact as to whether the prison administrator defendants were
Memorandum Decision & Order – page 11
deliberately indifferent to Bown’s Eighth Amendment rights. Accordingly, defendants’
summary judgment motion on qualified immunity is denied.
Motion to Stay and for Discovery
Bown has moved for a stay of the summary judgment proceedings so that he can
obtain certain discovery that defendants have refused to produce. In prior decisions, the
Court awarded sanctions of $43,499.60 against defense counsel Phillip Collaer and Blake
Hill on the ground that they intentionally made discovery difficult for plaintiffs. The
Court also ordered them to produce certain discovery.
At oral argument, Bown asserted that defendants have continued to stonewall their
discovery requests seeking information to explain why there was no qualified person at
the prison on weekends to read EKGs, and why Barrett was not at the prison during her
weekend shift. This evidence could be highly relevant to counter any argument from the
defendants that (1) Barrett violated prison policy in being off-site that day; (2) if Barrett
had been on-site she would have been able to read the EKG and would have transported
Bown immediately to the hospital; and (3) Barrett’s violation of prison policy – rather
than a flawed prison system that failed to provide immediate EKG interpretation on
weekends – was the cause of Bown’s damage.
If defendants had made this argument in the summary judgment proceedings, the
Court would have granted the motion to stay these proceedings until Bown could obtain
this discovery. But defendants did not pursue this line of argument, and so there is no
need to stay these proceedings. Nevertheless, Bown remains entitled to this evidence
Memorandum Decision & Order – page 12
because it is relevant not only to defenses the defendants might raise at some later point,
but also because it is relevant to Bown’s own claims.
Accordingly, the Court will grant this motion in part and deny it in part. The
Court will grant the motion to the extent it seeks to expand the discovery deadline to
allow for the depositions of the defendant prison administrators and to allow for further
discovery on the policy and practices generally regarding medical evaluations on
weekends at the prison and specifically regarding Barrett’s presence during her weekend
shifts.1 As discussed, the Court will deny that portion of the motion seeking to stay these
summary judgment proceedings.
The Court would note that although there is no pending motion for sanctions, the
Court would entertain such a motion if discovery stonewalling has occurred or continues.
Motion for Protective Order
The defendants have moved for a protective order to shield them from Bown’s
discovery requests discussed above. Pursuant to the discussion above, the defendants’
motion is specious and will be denied.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for summary
judgment (docket no. 100) and the motion for protective order (docket no. 108) are
DENIED.
1
Until discovery is closed, the Court refuses to grant summary judgment on any issue, including the claim for
prospective injunctive relief or the claim challenging audits.
Memorandum Decision & Order – page 13
IT IS FURTHER ORDERED, that the motion to stay or for additional discovery
(docket no. 102) is GRANTED IN PART AND DENIED IN PART. The motion to stay
is denied but the motion for discovery is granted, as set forth in the decision above.
DATED: July 5, 2016
_________________________
B. Lynn Winmill
Chief Judge
United States District Court
Memorandum Decision & Order – page 14
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