Keeper v. King

• Decision Date: 11 December 1997
• Docket Number: No. 96-2534,96-2534
• Citation: 130 F.3d 1309
• Parties: Andrew KEEPER, Appellant, v. Fred KING, Dr.; Anthony Gammon, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1309

130 F.3d 1309

Andrew KEEPER, Appellant, v. Fred KING, Dr.; Anthony Gammon, Appellees.

No. 96-2534.

United States Court of Appeals Eighth Circuit.

Submitted June 9, 1997.

Decided Dec. 11, 1997.

Gregory G. Fenlon, St. Louis, MO, argued, for appellant.

Denise LeAnne Thomas, St. Louis, MO, argued (Jeremiah W. (Jay) Nixon, Attorney General, and John R. Munich, Deputy Attorney General for Litigation, on the brief), for appellee Fred King.

Barbara Holway Frazier, St. Louis, MO, argued (Jeremiah W. (Jay) Nixon, Attorney General and John R. Munich, Deputy Attorney General for Litigation, on the brief), for appellee Anthony Gammon.

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, ¹ Senior Circuit Judge, and WOLLMAN, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

Andrew Keeper, a Missouri inmate who had been incarcerated at the Moberly Correction Center (MCC), appeals from a judgment of the District Court ² entered upon a jury verdict in favor of Dr. Fred King, a former MCC physician, and Anthony Gammon, superintendent of MCC. We affirm.

I.

On October 24, 1991, Keeper submitted a medical services request (MSR), complaining of headaches and blurred vision, but failed to appear for sick call. On October 28 Keeper complained of dizziness, abdominal pain, and blurred vision and was examined by a nurse, who diagnosed a likely muscle strain, prescribed Motrin, and told Keeper to return the next morning. On October 29 Keeper was examined by Dr. Hampton, who referred him to an ophthalmologist. On November 11 Keeper submitted an MSR, complaining of blurred vision and right eye and head pain, but again failed to appear for sick call. On November 18 Keeper, complaining of left-sided numbness, blurred vision, pain in the right eye, weakness, and an inability to stand at times, was again examined by Dr. Hampton, who prescribed Elavil for headaches and ordered a psychological examination, including testing.

On December 30 Keeper submitted two MSRs. At 4:20 p.m. he complained of headaches and blurred vision. A nurse examined and released him. At 6:00 p.m. he noted that he had run out of Elavil and that his pain had returned. He requested a complete physical "before something seriously does go wrong" and also submitted a letter detailing his complaints of headaches, blurred vision, and left-sided weakness and numbness. Later that day, King reviewed Keeper's medical records and renewed his prescription for Elavil. On January 1, 1992, Keeper submitted another MSR, claiming his condition was worse and that he had had "mild strokes off and on." On January 2 Keeper was brought to the medical unit on a stretcher, complaining of difficulty standing, dizziness, headaches, and numbness. King examined him, but found "no medical problem" and ordered that Keeper complete psychological testing. Although Keeper walked out of the unit on his own, he was brought back by a guard a few minutes later because he could not stand. King did not reexamine Keeper. However, Keeper was placed in administrative segregation for medical observation. As a routine matter, a nurse looked in on Keeper four times a day. He was also seen by a nurse on at least three other occasions, including January 17, when he was found lying on the floor unable to move. After returning to his regular cell on January 21, he was again found lying on the floor and was admitted to the infirmary for overnight observation. The next morning Keeper stated he was feeling fine and was discharged.

Keeper did not request or receive medical services again until Saturday, February 29, when he was brought to the medical unit after he was found sitting on a toilet unable to move or speak. A nurse called the MCC health care supervisor, Debra Williams, who was at home. Williams instructed the nurse to admit Keeper to the infirmary, check his vital and neurological signs every hour, and contact King. Although nurses tried to reach King by telephone several times on February 29, King, who did not carry a pager, was finally reached on March 1 at noon. King did not come to the infirmary, but instructed the staff to observe Keeper. At 3:00 p.m. that day Keeper was found lying on the floor wet with urine. His clothes were changed and his mattress was placed on the floor. He was found on the mattress wet with urine on Monday, March 2, at 1:30 a.m. and 6:30 a.m. At 7:35 a.m. King came to the infirmary and examined Keeper. Although the doctor found "no apparent neurological defect" and gave a provisional diagnosis of conversion hysteria, King transferred Keeper to a hospital to rule out an obstruction in the brain. At the hospital a CAT scan revealed that Keeper had had a large stroke to the right side of the brain. An examining doctor noted that the slow progression of the stroke was "a little unusual."

Keeper filed an action under 42 U.S.C. § 1983 against King and Gammon, alleging that they had been deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment. At trial, Keeper, who was then forty-one years old, testified that he could no longer use his left arm or leg, had difficulty speaking and seeing, and that his condition had worsened since the stroke. In addition to introducing the medical records, Keeper also presented the testimony of Debra Williams and Dr. Peter Lewitt, a neurologist.

Williams testified that although King was the full-time physician and Hampton was the part-time physician on the medical unit staff, as health care supervisor she had the over-all responsibility for the medical unit, and, in the event of an emergency, could order an inmate's transfer to a hospital. Although Williams was not involved in the day-to-day treatment of patients, she stated she was familiar with Keeper's case. In November 1991 she had reviewed his records and discussed his condition with her staff after Gammon had informed her that Keeper's mother had contacted him regarding Keeper's condition. After her review, Williams reported to Gammon that Keeper was being monitored. She was also aware that Gammon had informed the unit that Keeper's mother had again inquired about his condition on December 29. According to Williams, by mid-January Keeper's symptoms had become consistent with transient ischemic attacks (TIA), which are brief neurological attacks that could be precursors to a stroke.

As to the events of February 29 to March 2, Williams testified that she was at home when she received a call from a nurse informing her that Keeper had been brought to the unit because he had difficulty moving his left leg and could not move his left arm. Williams returned to work on March 2 and examined Keeper. Williams testified that she was "shocked" that King had found "no apparent neurological defect" during his examination, because her examination revealed that Keeper had facial drooping, halting and slurred speech, and a limp left arm.

On cross-examination, Williams admitted that on February 29 she had instructed her staff to call her at home if they could not reach King or if Keeper's condition had changed, but that no one called her. Williams also stated that she was aware that a list of physicians who were on call was posted on a bulletin board in the medical unit, but admitted that she had never called a doctor on the list and did not know how the list was to be used.

Dr. Lewitt, who practices and teaches neurology in Michigan, testified by video-taped deposition. He stated that risk factors for a stroke were high blood pressure and an abnormal heart rhythm and that symptoms of a stroke included numbness, but generally not a headache. Based on his review of Keeper's medical records, Dr. Lewitt believed that as of December 30, 1991, Keeper presented a medical emergency, and that a brain scan would have been appropriate. The doctor stated that on February 29 Keeper had a stroke, and King's order to observe was an inappropriate response. Lewitt believed that Keeper's stroke had progressed slowly, and that had it been diagnosed and treated earlier there was a possibility that some of the effects of the stroke could have been prevented. In sum, the doctor believed that there was "a major neglect of a treatable neurological condition."

Gammon testified that as superintendent of MCC he was responsible for the over-all operation of the MCC, but that he had no medical training or expertise. Gammon stated that although he knew Keeper's name, he was not personally familiar with him and had never received a grievance or letter concerning Keeper's care. Gammon stated that when he or his office had received telephone inquiries from Keeper's mother, the inquiries were referred to Williams because she was responsible for the operation of the infirmary.

King, who at the time of trial was employed by the Iowa Department of Corrections, testified that it was a nurse's responsibility to refer a patient to a physician, and in an emergency, if a nurse could not reach a doctor, the nurse or the health care supervisor could order a transfer of the inmate to a hospital. King admitted he did not carry a pager, but explained that, although he volunteered to see patients on nights and weekends, he was not on call twenty-four hours a day, seven days a week. Instead, he stated five to six physicians were on call. King believed that he had treated Keeper's symptoms appropriately and explained that he had ordered psychological testing because some of Keeper's symptoms could have been caused by a conversion hysteria, a process whereby a person converts a mental problem into an actual physical problem, or by malingering, whereby a person "fakes" symptoms. According to King, malingering was a common problem in prison. King stated that he reported that Keeper had "no apparent neurological defect" on March 2 because physical examination revealed "no evidence of pathological neurological signs," such as a positive Babinski response, deep tendon reflex, or ankle clonus.

King also presented...