Bendiburg v. Dempsey
| Decision Date | 20 August 1990 |
| Docket Number | 89-8348,89-8632,Nos. 89-8173,89-8259,89-8691 and 89-8742,s. 89-8173 |
| Citation | 909 F.2d 463 |
| Parties | Harry A. BENDIBURG, Individually and as Administrator of the Estate of Carl Bendiburg, Deceased, Plaintiff-Appellee, v. Pamela S. DEMPSEY, Sue Terry, and Nancy J. Pendergraft, Individually and as Officials of the Cobb County Department of Family and Children Services, Defendants-Appellants, Cobb County Department of Family and Children Services; Sallie T. Walker, Individually and as an Official of Cobb County; Cobb County, Georgia; Nancy Harrison; Medical Personnel Pool of Atlanta, Inc.; Richard Cohen, M.D.; Klaus, Cohen & Weil, Drs., Orthopaedic Associates, P.C.; and Baheeg Shadeed, M.D., Defendants. Harry A. BENDIBURG, Individually and as Administrator of the Estate of Carl Bendiburg, Deceased, Plaintiff-Appellee, v. Pamela S. DEMPSEY, Sue Terry, and Nancy J. Pendergraft, Individually and as Officials of the Cobb County Department of Family and Children Services, Defendants-Appellants, Cobb County Dept., Department of Family and Children Services, Sally T. Walker, Individually and as an Official of Cobb County; Cobb County, Georgia; Nancy Harrison; Medical Personnel Pool of Atlanta, Inc.; Richard Cohen, M.D., Klaus, Cohen & Weil, Drs., Orthopaedic Associates, P.C.; Baheeg Shadeed, M.D., Adventist Health Systems Sunbelt, Inc., d/b/a Smyrna Hospital, Defendants. Harry A. BENDIBURG, Individually and as Administrator of the Estate of Carl Bendiburg, Deceased, Plaintiff-Appellee, v. Pamela S. DEMPSEY, Sue Terry, and Nancy J. Pendergraft, Individually and as Officials of the Cobb County Department of Family and Children Services; Cobb County Department, Department of Family and Children Services; Sally T. Walker, Individually and as an Official of Cobb County, Cobb County, Georgia; Nancy Harrison; Medical Personnel Pool of Atlanta, Inc., Defendants, Richard Cohen, M.D.; Klaus, Cohen & Weil, Drs., Orthopaedic Associates, P.C.; Baheeg Shadeed, M.D., Defendants-Appellants, Adventist Health Systems Sunbelt, Inc., d/b/a Smyrna Hospital, Defendant. Harry A. BENDIBURG, Individ |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Michael J. Bowers, Atty. Gen., William C. Joy, Sr. Asst. Atty. Gen., Bruce M. Edenfiled, Sp. Asst. Atty. Gen., Hicks, Maloof & Campbell, R. Jerry Kirkpatrick, Michael A. Pannier, Victoria H. Tobin, Hart & Sullivan, Atlanta, Ga., for defendants-appellants in Nos. 89-8173, 89-8259, 89-8632, 89-8742.
Harold D. Corlew, Walls & Corlew, Atlanta, Ga., for Bendiburg.
Henry D. Green, Jr., R. Jerry Kirkpatrick, Sullivan, Hall, Booth & Smith, Atlanta, Ga., for Shadeed.
Bruce M. Edenfield, Hicks, Maloof & Campbell, Atlanta, Ga., for Dempsey, Terry, Pendergraft in No. 89-8348.
Sidney F. Wheeler, Long, Weinberg, Ansley & Wheeler, Stephen H. Sparwath, Atlanta, Ga., for Cohen, Drs. Klaus, Cohen & Weil Orthopaedic Assoc. in No. 89-8348.
R. Jerry Kirkpatrick, Michael A. Pannier, Hart & Sullivan, P.C., Atlanta, Ga., for Shadeed in No. 89-8348.
Stephen H. Sparwath, Long Weinberg Ansley & Wheeler, Sidney F. Wheeler, Bruce M. Edenfield, Sp. Asst. Atty. Gen., Hicks, Maloof & Campbell, P.C., Alan F. Herman, Freeman & Hawkins, Timothy H. Bendin, Sullivan Hall Booth & Smith, Henry D. Green, Jr., Atlanta, Ga., for defendants-appellees in No. 89-8691.
Appeals from the United States District Court for the Northern District of Georgia.
Before CLARK, Circuit Judge, RONEY *, Senior Circuit Judge, and ATKINS **, Senior District Judge.
These consolidated appeals from summary judgment orders raise complex legal issues but grow out of simple, tragic facts. Seeking money damages, Harry Bendiburg, an attorney, has sued various state employees and private doctors for their actions in connection with the medical treatment of his son, Carl, not for malpractice, but violation of due process rights and for battery.
Having sustained serious injuries in an automobile accident, which claimed his mother's life, 15-year-old Carl's medical treatment became a matter of controversy between the plaintiff father and the defendants. In order to give the treatment that the defendants thought necessary, a court order was obtained temporarily removing the custody of plaintiff's son, during which time the state custodian consented to the controversial treatment. After the medical procedure was performed and after custody was returned to the plaintiff, Carl died.
All defendants filed motions for summary judgment addressing the two-count complaint brought by Bendiburg, individually and as administrator of his son's estate, for civil rights violations under federal law and for battery under state law. The district court granted some motions, from which the plaintiff appeals, and denied some, from which defendants appeal. This left for trial: (1) a procedural due process claim against the state employees who obtained an ex parte court order for temporary custody and consented to the surgery, (2) the estate's substantive due process claim, and (3) the state battery claim against all defendants. The defendants have appealed the denial of summary judgment on these claims. The court dismissed all state employees and entities in their official capacities, and dismissed the due process claims against all private defendants. From these orders the plaintiff appeals. We reverse the summary judgment for the defendant as to the treating nurses and physicians on the Sec. 1983 due process claims. Otherwise, we affirm essentially on the basis of the carefully reasoned order of the district court reported as Bendiburg v. Dempsey, 707 F.Supp. 1318 (N.D.Ga.1989), and an unpublished order in N.D.Ga. Civil Action No. 1:87-CV-1774-JOF, dated June 30, 1989. We will not here repeat or amplify all the points of decision. The two Orders sufficiently report the facts so that a detailed recitation is not necessary here. The district court's discussion of the Sec. 1983 due process claims, which we reverse, is found at 707 F.Supp. at pp. 1326-1330.
After several weeks of hospitalization following the automobile accident, Carl was discharged to home care. At that time a bone infection was being treated intravenously. The continual collapse of surface veins created difficulty for Carl's home care nurses as they attempted to administer prescribed antibiotics. This led to a decision by Carl's orthopaedic physician that antibiotics should be introduced into Carl's body by the insertion of a Hickman catheter. A Hickman catheter is inserted in the subclavian or jugular vein, and then threaded through a patient's upper venous system to the juncture of the superior vena cava and the right atrium of the heart.
Carl's father considered the use of a Hickman catheter too risky and repeatedly made his objections known to the surgeon, the attending physician, and the nurses who performed and supervised home care services. Bendiburg's unwillingness to consent to the catheter led to contact with the Cobb County Department of Family and Children Services (DFACS), a government organization charged with the welfare of children. The defendant employees of DFACS then presented an ex parte petition for temporary custody to the Juvenile Court of Cobb County, without notice to his father. Upon entry of an order transferring custody of Carl from plaintiff to DFACS, consent was given for the Hickman catheter procedure. Sixteen days later, Carl died, allegedly as a result of a massive pulmonary embolus caused by the Hickman catheter being inserted into his heart.
The defendants in this case are:
1. DFACS' employees in their individual capacities; 1
2. The organization providing home nursing care to Carl, and its nurse employee; 2
3. Carl's treating physicians; 3 and
4. The surgeon who performed the Hickman catheter procedure, Dr. Baheeg Shadeed.
The critical issue in this case involves the propriety of the giving of consent to the surgical procedure, without notice to the father. The district court properly recognized that under certain extraordinary circumstances, a parent's custodial rights may be temporarily terminated without notice, provided a meaningful post-deprivation remedy is made available.
The order transferring custody was filed at 2:11 p.m. on Wednesday, the 27th of November 1985. It provided for a December 2nd post-deprivation probable cause hearing. Immediately upon entry of the temporary custody order, however, Carl was taken by DFACS to the hospital by ambulance, and a surgical consent form was signed that afternoon at 4:25 p.m. Before 5:00 o'clock p.m., Bendiburg was telephonically notified of the temporary transfer of custody, of his son's admittance to the hospital, of the scheduled surgical procedure, and of the post-deprivation hearing to be held on December 2. There was no intention to have a hearing on the propriety of the surgical consent. The procedure took place the next morning, and the following day Carl was taken to a...
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