Sama v. Hannigan

• Decision Date: 03 February 2012
• Docket Number: No. 10–40835.,10–40835.
• Parties: Carrie Rahat SAMA, Plaintiff–Appellant, v. Doctor Edward HANNIGAN; Doctor Lannette Linthigum; Wilson Dee, Director Texas Correctional Officer on Offenders Medical Condition; Doctor Uvalde; Doctor Snyder; Doctor Benoit; Doctor Den; Doctor Middleton, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

669 F.3d 585

Carrie Rahat SAMA, Plaintiff–Appellant,

v.Doctor Edward HANNIGAN; Doctor Lannette Linthigum; Wilson Dee, Director Texas Correctional Officer on Offenders Medical Condition; Doctor Uvalde; Doctor Snyder; Doctor Benoit; Doctor Den; Doctor Middleton, Defendants–Appellees.

No. 10–40835.

United States Court of Appeals, Fifth Circuit.

Feb. 3, 2012.

Carrie Rahat Sama, CID Young Medical Facility Complex, Dickinson, TX, pro se.

George William Vie, III, Mills Shirley, L.L.P., Houston, TX, Stephen R. Lewis, Jr., Lewis & Williams, Galveston, TX, for Defendants–Appellees.

Appeals from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, OWEN and HAYNES, Circuit Judges.

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.

I

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 expressed understanding that the likelihood of preserving the ovary was low. Benoit and Hannigan also stated in their affidavits that it was fully discussed with, and understood by, Sama that preservation of the ovary would be an intra-operative decision based on findings during surgery.

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 neuropathy was likely due to removal of her lymph nodes. She has presented no other evidence of causation, such as an affidavit or report from a medical professional.

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.

II

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. ¹ Thus, the district court implicitly held that no cognizable claims existed against these defendants.² In her brief on appeal, Sama names these other defendants as parties and appears to assume that they continue to be a part of this action. However, Sama has neither raised nor argued any issue on appeal regarding the propriety of the district court's § 1915A order as to these defendants and accordingly has waived any such issue. ³

III

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.⁴

IV

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...