Schmidt v. Wingo, 73-1716.

• Decision Date: 21 June 1974
• Docket Number: No. 73-1716.,73-1716.
• Citation: 499 F.2d 70
• Parties: Elaine M. SCHMIDT, Administratrix of the Estate of Donald Edward Schmidt, Deceased, and Elaine M. Schmidt, Individually, Plaintiffs-Appellants, v. John W. WINGO, Individually, and as Warden of the Kentucky State Penitentiary, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

499 F.2d 70 (1974)

Elaine M. SCHMIDT, Administratrix of the Estate of Donald Edward Schmidt, Deceased, and Elaine M. Schmidt, Individually, Plaintiffs-Appellants, v. John W. WINGO, Individually, and as Warden of the Kentucky State Penitentiary, Defendant-Appellee.

No. 73-1716.

United States Court of Appeals, Sixth Circuit.

Argued April 9, 1974.

Decided June 21, 1974.

Philip Taliaferro, Covington, Ky., for appellants; Robert E. Sanders, Neace, Taliaferro, Smith & Brown, Covington, Ky., on brief.

M. Curran Clem, Vaughn, Vaughn & Clem, Henderson, Ky., on brief for appellee.

Before PHILLIPS, Chief Judge, and WEICK and PECK, Circuit Judges.

WEICK, Circuit Judge.

The plaintiff, Elaine M. Schmidt, individually and as Administratrix of the Estate of her deceased son, Donald Edward Schmidt, filed suit in the District Court for $200,000, damages for wrongful death, against the Commonwealth of Kentucky, John W. Wingo, individually and as Warden of Kentucky State Penitentiary at Eddyville, Kentucky, Louie B. Nunn, Governor of the Commonwealth of Kentucky, John C. Taylor, Commissioner of the Department of Corrections, and John Doe, a guard at the Kentucky State Penitentiary at Eddyville.

The complaint alleged that plaintiff's decedent, while an inmate at the penitentiary, received numerous stab wounds inflicted by a fellow-inmate with a knife, as a result of which wounds he died in the prison hospital about seven hours later. The complaint charged that the defendants did not provide adequate medical treatment for the injuries inflicted upon the decedent.

Jurisdiction of the District Court was invoked under the Civil Rights Acts, 42 U.S.C. §§ 1981, 1983, 1988, 28 U.S.C. §§ 1331, 1343, and the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution.

On motion to dismiss, all of the state defendants except the Warden in his individual capacity, were dismissed because of sovereign immunity. Joe Doe was dismissed on the ground that suit may not be maintained against a fictitious person. The propriety of this ruling is not before us for review in this appeal.

The plaintiff then filed an amended complaint, adopting the allegations of her original complaint and making as an additional party defendant Doctor Max C. Salb, a general practitioner, who had been employed by the Warden as a prison doctor, on a forty-hour per week basis. The amended complaint charged Doctor Salb with medical malpractice.

It was the claim of the plaintiff that the prison hospital did not have adequate facilities for the treatment of the serious stab wounds inflicted upon her son, which injuries included a severing of the intercostal artery and vein, making a rent in the liver and entering the lung in two different places; that a thoracic surgeon was necessary to perform the operation; that the prison doctor was not a surgeon; that the defendants should have immediately removed the decedent to a hospital in another city having adequate facilities and personnel.

Extensive discovery was conducted. A short time before the trial commenced, Doctor Salb died, and the case was revived against his window, as executrix of his estate. A settlement was effected by Dr. Salb's estate with the plaintiff, and the case proceeded for trial before the Court without a jury, solely against the Warden individually.

The Court adopted findings of fact and conclusions of law in its opinion, and rendered judgment for the defendant. The plaintiff appealed. We affirm.

It appears from the findings of fact that the decedent was mortally wounded by numerous stab wounds in vital organs, the wounds having been inflicted by his fellow-inmate, and that he bled to death as a result thereof. These wounds were described in the Court's findings of facts as follows:

Pursuant to that call, Dr. Salb came to the Penitentiary, arriving there between 3:50 and 4 p. m. When he arrived, he found that Schmidt had numerous stab wounds which were bleeding profusely. The First Aid inmates had given him Dextran interveneously and were applying dressings in an attempt to stem the loss of blood. His clothing was completely removed and he was taken to the large surgery room. Upon removal to surgery, it was found that the blade had entered between the 7th and 8th rib on the right side of the chest, severing the intercostal artery and vein, making a rent in his liver. The second wound penetrated between the 5th and 6th rib in the mammary line puncturing the lung.

A third stab wound entered the back between the 4th and 5th rib, entering the lung, and the upper left arm was penetrated and there was a laceration in the right shoulder. (App. p. 484).

The evidence to support these findings is contained in the deposition of Dr. Salb which was taken before his death, and also in Dr. Salb's "Medical Statement", plaintiff's Exhibit 7, a copy of which appears in the transcript at pages 314 and 315, as part of the prison hospital record; a copy is also appended hereto.

The Medical Statement refers to Dr. Salb's telephone call to the warden, as follows:

I immediately called Mr. Wingo, after discovering the extent of the injuries, telling him this man should be removed to another hospital because we did not have the equipment to handle such a case. Mr. Wingo asked if we could acquire this equipment immediately and I told him I didn\'t think so. He then asked if the patient could survive a trip from our clinic to an outside hospital and I replied in the negative, as I considered the patient\'s condition too serious. Mr. Wingo advised me to do what I could for the man. I immediately returned to the surgery, scrubbed, and with the assistance of an inmate nurse, did what I could do surgically to control the massive hemorrhage. (App. p. 314).

The closing paragraph of Dr. Salb's Medical Statement states:

During the operation I noticed that the patient was becoming Emphysematous. His neck was enlarging due to air under the skin, as was his head and scrotum. I knew then that the patient was dying and nothing more could be done. We administered IV\'s and the patient expired at 10:10 p. m., August 31, 1970. (App. p. 315).

The District Court found:

Dr. Salb\'s testimony on deposition was to the effect that he told Wingo that Schmidt should be removed to another hospital because Eddyville did not have the necessary equipment, (page 127). Wingo asked if this equipment could be acquired immediately and Dr. Salb opined that he did not think so. The equipment needed was a ronger and a trocar. Dr. Salb then went on to say, in response to a question from Wingo, as to whether the patient could survive a trip from the Penitentiary to an outside hospital, that he could not. He considered the patient\'s condition too serious to be moved. (App. p. 485).

The Court further stated:

It is this Court\'s opinion that as to the Warden, plaintiff must show by a preponderance of the proof a deliberate refusal to follow the recommendation of Dr. Salb. Since Dr. Salb did not give a recommendation that plaintiff\'s decedent be removed to an outside hospital, the Court concludes that the plaintiff has failed to meet her burden of proof and, therefore, her complaint must be dismissed. (App. at 488-489).

In our opinion a deliberate refusal by the Warden to follow the recommendation of the prison doctor is not the only ground for holding him liable under the Civil Rights Act. In the present case, however, it was claimed that the Warden was liable for not following the recommendation of the prison doctor that the decedent be moved to an outside hospital in another city. The District Court found that the prison doctor made no such recommendation, and therefore the plaintiff failed in her burden of proof.

The District Court cited Stiltner v. Rhay, 371 F.2d 420 (9th Cir. 1967), cert. denied, 386 U.S. 997, 87 S.Ct. 1318, 18 L.Ed.2d 346 (1967), and Mayfield v. Craven, 299 F.Supp. 1111 (E.D.Cal., 1969), aff'd per curiam, 433 F.2d 873 (9th Cir. 1970). In these cases judgment was entered dismissing the complaint for failure to state a claim upon which relief could be granted. It was held in both cases that prison authorities have wide discretion in their treatment of prisoners. We agree.

In Stiltner the Court stated that it found no showing of inadequate medical care and treatment that would justify federal intervention. In footnote 3 the Court said that under exceptional circumstances the failure to provide or permit access to medical care may rise to Fourteenth Amendment proportions. It cited, for example, Coleman v. Johnston, 247 F.2d 273 (7th Cir. 1957), and Hughes v. Noble, 295 F.2d 495 (5th Cir. 1961).

In Coleman, allegations that police prevented treatment of bullet wounds so severe that they later required amputation of prisoner's leg, were held to be sufficient to prevent summary disposition of a civil rights action. In Hughes, where the complaint alleged that a Sheriff, upon arriving at the scene of an automobile accident, arrested and held incommunicado a person who suffered a broken neck, the Court held that it did not appear beyond doubt that plaintiff could prove no set of circumstances in support of his claim. In Mayfield the Court stated that the Civil Rights Act was designed to protect constitutionally-guaranteed rights, not to provide a forum for alleged medical malpractice actions.

Coleman and Hughes involved wilful and outrageous conduct on the part of the law enforcement officials, which is entirely absent in the present case.

In the footnote in Stiltner the Court stated that the allegations in the illustrative cases tend to show an acute physical condition, the urgent need of medical care, the failure or refusal to provide it, and tangible residual injury. The Court then stated that plaintiff's allegations show only that "he has not been receiving the kind and quality of medical treatment he believes is indicated;" and stated further:

Like the Seventh Circuit, "we know of no authority standing for

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