768 Fed.Appx. 515 (6th Cir. 2019), 18-5224, Blaine v. Louisville Metropolitan Government

Docket Nº:18-5224
Citation:768 Fed.Appx. 515
Opinion Judge:JOHN K. BUSH, Circuit Judge.
Party Name:Daniella BLAINE, Plaintiff-Appellant, v. LOUISVILLE METROPOLITAN GOVERNMENT, et al., Defendants-Appellees.
Attorney:Gregory A. Belzley, Belzley, Bathurst & Bentley, Prospect, KY, for Plaintiff-Appellant J. Denis Ogburn, Civil Division, Louisville, KY, for Defendant David Sean Ragland, Patricia Colleen Le Meur, Matthew A. Piekarski, Phillips, Parker, Orberson & Arnett, Louisville, KY, for Defendants-Appellees C...
Judge Panel:BEFORE: CLAY, McKEAGUE, and BUSH, Circuit Judges.
Case Date:April 16, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 515

768 Fed.Appx. 515 (6th Cir. 2019)

Daniella BLAINE, Plaintiff-Appellant,

v.

LOUISVILLE METROPOLITAN GOVERNMENT, et al., Defendants-Appellees.

No. 18-5224

United States Court of Appeals, Sixth Circuit

April 16, 2019

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

Gregory A. Belzley, Belzley, Bathurst & Bentley, Prospect, KY, for Plaintiff-Appellant

J. Denis Ogburn, Civil Division, Louisville, KY, for Defendant

David Sean Ragland, Patricia Colleen Le Meur, Matthew A. Piekarski, Phillips, Parker, Orberson & Arnett, Louisville, KY, for Defendants-Appellees Corizon Health, Inc., Stephanie Kohl, T. J. Sloan

J. Denis Ogburn, Civil Division, Louisville, KY, for Defendant-Appellee Mark Bolton

BEFORE: CLAY, McKEAGUE, and BUSH, Circuit Judges.

OPINION

JOHN K. BUSH, Circuit Judge.

On August 25, 2012, David Cross died of a drug overdose while in custody at a Louisville Metro Department of Corrections ("LMDC") facility. As administratrix of Cross’s estate, appellant Daniella Blaine alleges that the death resulted from negligence and deliberate indifference of appellees Corizon, Inc., LMDC’s contracted medical provider ("Corizon"); Corizon employee and licensed practical nurse ("LPN") Stephanie Kohl; and Corizon employee and Registered Nurse ("RN") T.J. Sloan (Appellees are referred to collectively as the "Corizon Defendants"). Blaine asserts a claim under 42 U.S.C. § 1983, based on alleged violations of the Eighth Amendment, incorporated against the states pursuant to the Fourteenth Amendment, as well as state law claims of negligence, gross negligence, and wrongful death.

The record demonstrates that, at the most, Kohl failed to recognize that Cross had overdosed and Sloan failed to conduct her own investigation. It is tragic that Cross died under these circumstances. However, under our circuit’s established case law, misdiagnosis or negligence does not amount to deliberate indifference to serious medical needs, which is required to establish an Eighth Amendment violation. Accordingly, we AFFIRM the district court’s decision granting summary judgment for the Corizon Defendants on the federal claims and dismissing the state law claims without prejudice.

I. BACKGROUND

During the afternoon of August 25, 2012, Louisville Metro Police Department Officer Chad Tinnell stopped a vehicle for failing to use a turn signal. A passenger in the vehicle, David Cross, had an outstanding warrant for his arrest. At 4:00 PM, Officer Tinnell took Cross into custody. During the arrest and later, while transporting Cross to the LMDC jail, Officer Tinnell did not notice any signs that Cross was heavily intoxicated or under the influence of other substances.

Upon his arrival at the jail, Cross underwent a medical assessment by LPN Kohl. Kohl filled out several medical records. The relevant ones are recited, in detail, below as they pertain to whether Kohl was deliberately indifferent toward Cross’s medical care.

A. Kohl’s 5:18 PM Note

Kohl’s Note, in which she handwrote the time as 5:18 PM, stated the following: [Cross] presents at medical stumbling to station. States he drank half a beer today only, but takes [X]an[a]x and Loritab [sic] for pain. [Cross] had slurred speech[,] strong odor o[f] [alcohol], and [Cross] appeared to fall asleep several times during his interview. [Cross] slurred words, stumbled over his sentences, would ramble. [Cross] stated he suffered from a head injury [from] a [motor vehicle accident] several years ago. [Cross] stated his highest level of education is the 7th grade. [Cross] was placed on detox, bottom bunk entered into computer, [mental health] referral complete ... [Cross] states he takes [hypertension] medication Lisinopril 20 mg QD and is being treated for [b]ipolar [disorder], anxiety[,] and depression. [Due to Cross’s] level of functioning, he was referred to [observation room] #2 for further observation.

5:18 PM Note, R. 98-2, Page ID # 608. Blaine contends that Kohl assessed Cross for no more than eighteen minutes, which is the difference between the time stamp on the Note and 5:00 PM, when Cross arrived at the jail.

B. Withdrawal Initial Screening & Treatment Plan

Kohl also filled out a Withdrawal Initial Screening & Treatment Plan. In the first section of the form, labeled "Subjective," Kohl noted that Cross had consumed his last alcoholic drink, half a beer, three hours prior to his admission at the facility. Withdrawal Initial Screening & Treatment Plan, R. 103-2, Page ID # 660. She also noted that he had taken two types of opioids, Xanax and Lortab, and she marked "uk" (unknown) under "last opiate use." Id. This section of the form also included a checklist in which Kohl marked "no" for both "Past History of Withdrawal" and "Present Withdrawal Complaints." Id. Under "History of Psychiatric Problems," she checked "yes," and she noted that Cross had a history of bipolar disorder, depression, and anxiety. Id. Under "Past Medical History," she wrote that he had "HTN [hypertension]." Id.

For the second section of the form, labeled "Objective," Kohl added information regarding Cross’s vitals, including his temperature, pulse, and blood pressure. Id. A sub-section headed "Level of Consciousness" contained a checklist with a range of "Alert & Responsive" (the highest level of consciousness) to "Non-Responsive" (no consciousness). Id. Kohl checked "Alert & Responsive." Id. In the "Orientation" sub-section, she marked "Person," "Place," and "Time." Id. She also noted Cross’s fingerstick blood sugar.

In the third section of the form, labeled "Assessment," under "Presumed Substance Abused," Kohl assigned Cross a score of "1 Id. Under the type of risk that an inmate’s condition exhibits, the form included a checklist with a range of "Risk for Withdrawal" (the lowest risk) to "Severe Withdrawal" (the highest risk). Id. In the case of severe withdrawal, the instruction accompanying the checklist stated, "Immediate provider notification required." Id. For less severe withdrawal, other instructions were included; for example, for mild withdrawal, the instruction stated, "Notify provider within 2 hours— Monitor at least every 8 hours." Id. Kohl marked "Risk of Withdrawal," which was accompanied by the instruction to "[m]onitor at least every 8 hours." Id. The "Risk of Withdrawal" instruction did not include any directions to notify a provider. See id.

In the last section, labeled "Plan," Kohl checked "Orders received from provider— Note on order sheet." Id. Within this section, Kohl checked a box indicating that Cross should be observed every eight hours for five days and continue to be reoriented. She also marked "Bottom Bunk assignment. Continue to monitor for falls," "Notify security to observe patient for withdrawal symptoms," "Every visit— encourage fluids. Ask patient if he is urinating," and "Provide for comfort." Id. For Cross’s mental health information, Kohl marked "Refer to MH if indicated based on Mental Health Intake Screening," and she marked this as "Non-emergent." Id. She also checked "Continue to monitor for suicide risk, depression[,] and psychiatric co-morbidities." Id. Finally, she checked "Initiate Substance Abuse Withdrawal Flowsheet." Id.

The bottom of the form stated in all caps and in bold to "[n]otify physician immediately if severity score increases any time during withdrawal." Id.

C. Substance Abuse Withdrawal Flowsheet

As a part of her intake, Kohl additionally completed a Substance Abuse Withdrawal Flowsheet. At the top of the Flowsheet, she handwrote the time as 5:06 PM. The next part of the Flowsheet stated, "Observation for (mark all that apply)" with the options of "ETOH," "Benzodiazepine," "Opioid," and "Mixed/Unknown." Substance Abuse Withdrawal Flowsheet, R. 98-3, Page ID # 609. Kohl did not mark any of these options. The next part of the Flowsheet stated, "Tool used," with the options of "CIWA-Ar," "BWS-C," "COWS," and "CIWA-Ar." Id. Kohl checked the first "CIWA-Ar." Id. In the next part of the Flowsheet, Kohl documented Cross’s temperature, pulse, respiration, blood pressure, and orientation, among other things. Cross’s vital signs fell within the normal ranges included on the Flowsheet, and Kohl wrote "mild," selecting from the range of "severe" to "mild," for his symptoms. Id. Under "Provider Notified" and "New Orders Rec’d," Kohl marked "Y." Id. Under "Observe ... Hours," Kohl wrote "8." Id. Ultimately, Kohl assigned Cross a base severity score of "0." Id.

D. Other Intake Information

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