Rhinehart v. Scutt et al

Filing 284

Order Overruling Defendants' 274 Objections, Adopting 273 Report and Recommendation, and Denying Defendants' 258 Motion for Summary Judgment. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID RHINEHART and
LEWIS RHINEHART,
Joint Personal Representatives
of the Estate of
KENNETH RHINEHART,
deceased,

Case No. 2:11-cv-11254
HONORABLE STEPHEN J. MURPHY, III
MAGISTRATE ELIZABETH A. STAFFORD

Plaintiffs,
v.
ADAM EDELMAN and VERNON
STEVENSON,
Defendants.
/
ORDER OVERRULING DEFENDANTS' OBJECTIONS (document no. 274),
ADOPTING THE REPORT AND RECOMMENDATION (document no. 273), AND
DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (document no. 258)
Kenneth Rhinehart was a prisoner in the custody of the Michigan Department of
Corrections. In March 2011, he filed the present action under 42 U.S.C. § 1983, alleging
that medical providers denied him necessary medical treatments. He died in 2013 while still
in custody and an amended complaint was filed on behalf of his estate. Am. Compl., ECF
No. 175. In September 2013, the Court referred all pretrial matters to Magistrate Judge
Paul J. Komives. Order, ECF No. 160. The case was then reassigned to Magistrate Judge
Elizabeth A. Stafford in January 2015.
The Court previously dismissed some of Rhinehart's original claims and now, only
Plaintiffs' Eighth Amendment claims against Defendants Adam Edelman and Vernon
Stevenson remain. The defendants moved for summary judgment and the magistrate judge
issued a Report and Recommendation ("Report") suggesting the Court deny the motion.
ECF No. 273. The Court will adopt the Report's findings and deny the Defendants' motion.

BACKGROUND
The Report properly details the events giving rise to Rhinehart's action against the
Defendants. Report 2–21, ECF No. 273. The Court will adopt that portion of the Report.
STANDARD OF REVIEW
Civil Rule 72(b) governs the review of a magistrate judge's report. A district court's
standard of review depends upon whether a party files objections. The Court need not
undertake any review of portions of a Report to which no party has objected. Thomas v.
Arn, 474 U.S. 140, 150 (1985). De novo review is required, however, if the parties "serve
and file specific written objections to the proposed findings and recommendations." Fed.
R. Civ. P. 72(b)(2). In conducting a de novo review, "[t]he district judge may accept, reject,
or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
Civil Rule 56(c) provides that summary judgment should be rendered if the pleadings,
the discovery and disclosure materials on file, and any affidavits show "that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). Summary judgment is appropriate if the moving party
demonstrates that there is no genuine issue of material fact regarding the existence of an
essential element of the nonmoving party's case on which the nonmoving party would bear
the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Martin
v. Ohio Turnpike Comm'n, 968 F.2d 606, 608 (6th Cir.1992).
In considering a motion for summary judgment, the Court must view the facts and
draw all reasonable inferences in a light most favorable to the nonmoving party. 60 Ivy St.
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Corp v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). The Court is not required or
permitted, however, to judge the evidence or make findings of fact. Id. at 1435–36.
The moving party has the burden of showing conclusively that no genuine issue of
material fact exists. Id. at 1435. A fact is "material" for the purposes of summary judgment
if proof of that fact would have the effect of establishing or refuting an essential element of
the cause of action or a defense advanced by the parties. Kendall v. Hoover Co., 751 F.2d
171, 174 (6th Cir. 1984). A dispute over a material fact is genuine "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, when a reasonable jury could not find
that the nonmoving party is entitled to a verdict, there is no genuine issue for trial and
summary judgment is appropriate. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th
Cir. 1993).
DISCUSSION
Defendants object to the Report on four grounds. The Court finds none persuasive.
I.

Objection One: Failure to Identify the Serious Medical Need
Defendants first make an overarching objection to the way the Report describes

Rhinehart's medical needs. They argue that at various points, the Report faults the
Defendants for disregarding risks and failing to take action but "fails to identify what serious
medical need the Defendants allegedly disregarded," ultimately concluding that the
magistrate judge's "mischaracteriz[ation]" resulted in a "flawed analysis overall." Obj. 3–4,
ECF No. 274.
At the outset, the details of Rhinehart's care and alleged medical needs are hardly
"glossed over" by the Report. Obj. 5–6, ECF No. 274. It describes Rhinehart's saga for
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twenty pages, meticulously cites to the record, and in so doing, provides ample grounds
to draw the inference that certain procedures were medically advisable but unjustifiably
ignored.
Defendants point to several places in the Report when it allegedly failed "to identify
what serious medical need Mr. Rhinehart had that mandated treatment," Obj. 3–4, ECF No.
274, but the medical need is clear: after specialists could not determine the cause of
"abnormalities" with his liver, Rhinehart needed a diagnosis — and one rooted in medical
judgment, not mere assurances. Rhinehart needed specialists to conduct real
investigations into whether he had cancer. The claims of deliberate indifference arise from
the alleged failure of Defendants to pursue a diagnosis despite indications that action was
necessary. Cf. Reilly v. Vadlamudi, 680 F.3d 617, 625 (6th Cir. 2012) (concluding that
defendant doctor was not liable for a failure to diagnose cancer because there were no
indications of a serious condition).
At the summary judgment phase, all facts are viewed in a light most favorable to
Plaintiffs and all reasonable inferences are drawn in their favor. And the record is clear that
many times along the way, physicians examined Rhinehart and his medical records, raised
concerns or recommended treatment for Rhinehart, and those concerns and
recommendations were not acted upon swiftly, or at all, by the Defendant doctors. See,
e.g., Report 33, ECF No. 273 (noting that a specialist warned that Rhinehart might bleed
to death); id. at 3–4 (noting that two doctors recommended Rhinehart be seen by cancer
and liver specialists); id. at 8–9 (explaining that a liver biopsy was recommended for
Rhinehart, but the reasons for denying him one are unclear). In fact, the very reason
Rhinehart came to be under the care of the Defendants was because specialists suspected
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Rhinehart had additional health complications but concluded that transferring him to the
Cotton facility would aid in diagnosing him. See Report 3–6, ECF No. 273. Plaintiffs claim
that once Rhinehart arrived, Defendants were indifferent to seeking a firm diagnosis and
indifferent to complications that arose along the way.
Defendants nevertheless insist "[a] radiologist's note that Mr. Rhinehart might have
a mass is not an actual diagnosis of cancer," and that "the risk of future esophageal
bleeding" is not a new diagnosis. Obj. 5–6, ECF No. 274 (emphasis original). Indeed, the
assertions are true — but they entirely miss the point. Had a doctor conclusively diagnosed
Rhinehart with liver cancer and Defendants knowingly disregarded the risk and failed to
treat him, a claim of deliberate indifference would lie. It makes no difference that the
alleged indifference in the case was ignoring specialists recommendations to take the first
step in treatment: securing a diagnosis. See Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir.
2013) ("[O]ur cases do not support the notion that a prison doctor who delays treatment
may escape liability simply because the treatment was recommended rather than
prescribed. . . . [D]elay of a recommended plan of treatment could constitute a
constitutional violation[.]").
Examining doctors raised specific concerns that Rhinehart had cancer, had him
transferred specifically to have specialists follow-up on those concerns, and Defendants
allegedly failed to take action, many times over and with little or no reason, long after
Rhinehart's arrival. Whether Defendants did fail to take action on those concerns, and their
precise state of mind in doing so, are questions of fact. Summary judgment is therefore
unwarranted and the Court overrules Defendants' first objection.

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II.

Objection Two: The Applicable Legal Standard
Defendants argue that the magistrate judge applied the wrong legal standard. They

argue that the correct standard is from Napier, but that the magistrate judge applied the law
of Blackmore. Plaintiffs insist the magistrate judge applied the law properly.
To begin, there are two steps to make a claim of deliberate indifference. The first step
is subjective: the plaintiff must show that he had a sufficiently serious medical need. See
Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011). The second step is subjective:
the plaintiff must show that the prison officials had a "a sufficiently culpable state of mind
in denying medical care." Id. Although the Report suggested that, "Defendants do not
challenge that Rhinehart suffered from a sufficiently serious medical condition so as to
satisfy the objective component of the deliberate indifference test," Report 23, ECF No.
273, Defendants' objections reveal that the suggestion is not quite accurate. Defendants
do concede that Rhinehart suffered from certain medical conditions: Hepatitis C and ESLD.
But they insist that the objective component was not met because they argue the applicable
law is Napier, which requires a showing that the alleged delays in treatment proximately
caused the harm Rhinehart suffered. See Obj. 7–8, ECF No. 274. Whether Napier or
Blackmore applies, they argue, makes all the difference in determining whether the
objective component was satisfied.
The Sixth Circuit decided Napier v. Madison Cnty., Ky. in 2001. 238 F.3d 739 (6th Cir.
2001). The case concerned a man whose kidney failure required him to receive dialysis
treatments three times per week. When he was arrested and detained at a county jail, he
told prison officials about his need for dialysis treatments, but also said missing a treatment
was "no big deal" as he often missed them — in fact, he had skipped the treatment
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scheduled three days before his incarceration. He did not receive any treatments during
his two-day incarceration, and then missed the appointment scheduled for the day of his
release and the one two days after that. He later brought suit against the prison officials
alleging deliberate indifference. The Court of Appeals affirmed the district court's grant of
summary judgment for defendants, and explained that "[a]n 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 the delay in medical treatment
to succeed." Id. at 742 (quoting Hill v. Dekalb Reg'l Youth Det. Ctr, 40 F.3d 1176, 1188
(11th Cir. 1994)).
Three years later, the Court revisited the Napier standard in Blackmore v. Kalamazoo
Cnty., 390 F.3d 890 (6th Cir. 2004). In that case, a man was also arrested and detained at
a county jail. During his detention, he began to suffer from severe abdominal pain, but
when he complained to the jail officers, they did nothing but give him antacids. After two
days at the jail, a nurse examined him, determined that his appendix had ruptured, and
soon thereafter, he was treated without complications at a hospital. The Blackmore court
reversed the grant of summary judgment for defendants, explaining that when an injury or
illness is so obvious "that even a layperson would easily recognize the necessity for a
doctor's attention," the plaintiff does not need to present verifying medical evidence that his
medical condition worsened or deteriorated. Id. at 899–900. "Instead, it is sufficient to show
that he actually experienced the need for medical treatment, and that the need was not
addressed within a reasonable time frame." Id. at 900.
Since the decisions in Napier and Blackmore, courts have consequently parsed out
deliberate indifference cases into one of two categories. See, e.g., Blosser v. Gilbert, 422
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F. App'x 453, 460 (6th Cir. 2011). In one category are the cases of "obvious need", in which
a plaintiff does not need to offer verifying medical evidence that a delay had a detrimental
effect. The second category includes the "less obvious need" cases, when a plaintiff must
place "verifying medical evidence in the record to establish the detrimental effect of the
delay in medical treatment." Napier, 238 F.3d at 742. The determination to be made in all
cases is the same: whether a risk faced by the plaintiff was serious enough to satisfy the
objective component of the deliberate indifference analysis. And "risk" is the operative
word, because the harm in all cases of deliberate indifference — no matter the category
— is the inaction of prison officials. See Blackmore, 390 F.3d at 899 (prison officials'
"conduct in causing the delay [of medical treatment] creates the constitutional infirmity.").
Thus, the relevant inquiry in either type of case is whether a prisoner was "incarcerated
under conditions posing a substantial risk of serious harm." Napier, 238 F.3d at 742
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (emphasis added).
In her Report, the magistrate judge said that "medical conditions diagnosed by a
physician as mandating treatment" are treated as needs "that are obvious to a lay person."
See Report 26, ECF No. 273 (citing Blackmore, 390 F.3d at 897). Plaintiffs allege that
medical professionals expressed concern that there was something else plaguing
Rhinehart — perhaps cancer. He was transferred to the Defendants' care, in part, because
of that very risk. After he arrived at the Cotton facility, Plaintiffs allege that other medical
experts also recognized the risk, but the Defendants disregarded the risk by failing to
follow-up with the doctors' recommendations. In so doing, they exposed Rhinehart to a
substantial risk of harm in violation of his rights under the Eighth Amendment. Because

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medical professionals recommended treatment and further investigation regarding
Rhinehart's liver, it is irrelevant whether Rhinehart actually had liver cancer.
The magistrate judge accurately described and applied the applicable legal standard
in the Report. The Court therefore overrules Defendants' second objection.
III.

Objection Three: Deference to Medical Decisions Standard
Defendants' third objection concerns application of the "deference to medical

decisions" standard. They argue that because every alleged action or inaction of
Defendants was merely a difference of medical opinion, all the decisions are deserving of
deference and, therefore, none constitute deliberate indifference. Obj. 20–21, ECF No. 274.
The magistrate judge agreed as to two of Edelman's treatment decisions: his denial of
requests for an MRI and for a barium swallow. See Report 31–32 ("[T]he denial of those
tests amounted to a mere disagreement among medical professionals."). But the
magistrate judge reached a different conclusion regarding "Dr. Edelman's failure to approve
the requests for a liver biopsy and his refusal to approve Dr. Schachinger's request to
transfer Rhinehart to a tertiary care center for a TIPS procedure." Id. at 32. The magistrate
judge found that those decisions were not necessarily mere disagreements among medical
professionals and a jury could therefore "find that those actions and omissions constituted
deliberate indifference to a substantial risk of harm." Id. Defendants claim that the
magistrate judge reached her conclusion by relying on inapposite and non-binding cases.
See Obj. 12, 14, ECF No. 274.
The Court need not determine whether the proffered cases are analogous to this one
to resolve Defendants' third objection. At this point in the litigation, the Court must view all
evidence in a light most favorable to Plaintiffs. So viewed, Defendants' treatment choices
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were not medical decisions, they were merely decisions. The decisions to ignore
specialists' treatment recommendations are not automatically "medical" judgments simply
because each defendant is a medical doctor. The judgments must rest on medical
reasoning, and whether the defendants employed that reasoning is a genuine issue of
material fact.
As the magistrate judge explained, even though "Dr. Edelman did not have expertise
with respect to esophageal varices and, even though he had not seen the condition of
Rhinehart's liver, he inexplicably rejected Dr. Schachinger's first-hand expert opinion that
further banding could not be done." Report 33–34, ECF No. 273. Similarly, "[t]here is no
documentation in the record to explain" why the various biopsy requests were not pursued
and the evidence does not "establish that the suspicion of cancer had been ruled out at the
time of these requests." Id. at 33. In other words, a reasonable jury could find that
Defendants chose not to pursue the treatments based on reasons not tied to their medical
judgments. The decisions would therefore not receive deference; a reasonable jury could
find that Defendants' inactions were the result of deliberate indifference.
Because Defendants' reasons for denying treatments are genuine issues of material
fact, summary judgment is unwarranted. The Court therefore overrules Defendants' third
objection.
IV.

Objection Four: Vicarious Liability
In their fourth and final objection, Defendants claim that the magistrate judge

incorrectly applied a vicarious liability standard to Stevenson. Obj. 21, ECF No. 274. They
properly point out that the Court "must evaluate Dr. Stevenson's actual involvement and
not attribute actions or omissions of other medical providers to Dr. Stevenson." Id. at 22;
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see Gibson v. Matthews, 926 F.2d 532, 535 (6th. Cir. 1991) ("If any one [defendant] is to
be held liable, it must be based on the actions of that defendant in the situation that the
defendant faced, and not based on any problems caused by the errors of others, either
defendants or non-defendants."). Given that limit, Defendants cite several instances of the
magistrate judge allegedly blaming the actions of others on Stevenson. They conclude that
since Stevenson cannot be held liable those actions, summary judgment should be granted
in his favor.
But the magistrate judge fulsomely laid out decision points during Rhinehart's care
when a reasonable jury could find Stevenson to have been deliberately indifferent.
Defendants' argument regarding vicarious liability might be persuasive if the extent of
Stevenson's oversight responsibilities was clear — but it is not. Again, at the summary
judgment stage, all evidence is viewed in a light most favorable to the Plaintiffs and every
inference is drawn in their favor. The parties' war of citations as to whether Stevenson was
Rhinehart's primary care physician and what the position entailed only emphasizes what
the magistrate judge ultimately determined: there remain genuine issues of material fact
on the matter. See Report 2, 5, 27, ECF No. 273 (noting places in the record supporting
the claim that Stevenson was the assigned primary care physician). Defendants' other
arguments — that the system was "not being followed," that other providers saw and
treated Rhinehart, and that Rhinehart believed someone else was his treating physician —
are irrelevant. See Reply 11, ECF No. 281; Obj. 22, 24, ECF No. 274. The extent of
Stevenson's responsibilities, what he knew, and when he knew it, remain questions for the
jury. And until there are answers to those questions, there can be no conclusion as to his

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potential liability for deliberate indifference. The Court therefore overrules Defendants'
fourth objection.
ORDER
WHEREFORE, it is hereby ORDERED that Defendants' Objections to the Report and
Recommendation (document no. 274) are OVERRULED.
IT IS FURTHER ORDERED that the Report and Recommendation (document no.
273) is ADOPTED.
IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment
(document no. 258) is DENIED.
SO ORDERED.

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: December 13, 2016

I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on December 13, 2016, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

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