Bendiburg v. Dempsey, Civ. A. No. 1:87-CV-1774-JOF.

• Decision Date: 05 January 1989
• Docket Number: Civ. A. No. 1:87-CV-1774-JOF.
• Parties: Harry A. BENDIBURG, Individually and as Administrator of the Estate of Carl Bendiburg, Deceased, Plaintiff, v. Pamela S. DEMPSEY; Sue Terry; Nancy J. Pendergraft, Individually and as Officials of the Cobb County Department of Family & Children Services; Cobb County Department of Family & Children Services; Nancy Harrison; Medical Personnel Pool of Atlanta, Inc.; Richard Cohen, M.D.; Klaus, Cohen & Weil, Drs., Orthopaedic Associates, P.C.; Baheeg Shadeed, M.D., Defendants.
• Court: U.S. District Court — Northern District of Georgia

707 F. Supp. 1318

Harry A. BENDIBURG, Individually and as Administrator of the Estate of Carl Bendiburg, Deceased, Plaintiff, v. Pamela S. DEMPSEY; Sue Terry; Nancy J. Pendergraft, Individually and as Officials of the Cobb County Department of Family & Children Services; Cobb County Department of Family & Children Services; Nancy Harrison; Medical Personnel Pool of Atlanta, Inc.; Richard Cohen, M.D.; Klaus, Cohen & Weil, Drs., Orthopaedic Associates, P.C.; Baheeg Shadeed, M.D., Defendants.

Civ. A. No. 1:87-CV-1774-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

January 5, 1989.

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Harold Dennis Corlew, Atlanta, Ga., for plaintiff.

William C. Joy, Victoria H. Tobin, Office of State Attorney General, Bruce McCord Edenfield, Hicks, Maloof & Campbell, Alan F. Herman, Freeman & Hawkins, J. Caleb Clarke, III, Culbreth & Clarke, Earl W. Gunn, Sidney F. Wheeler, Long, Weinberg, Ansley & Wheeler, Lawrie E. Demorest, Ralph Jerry Kirkpatrick Hart & Sullivan, Atlanta, Ga., for defendants.

ORDER

FORRESTER, District Judge.

This matter is before the court on defendants' motions for summary judgment. Fed.R.Civ.P. 56. These motions will be addressed following a detailed statement of the relevant facts.

I. STATEMENT OF FACTS.

A. The Parties.

Plaintiff Harry D. Bendiburg brings this action both in his individual capacity as well as in his capacity as administrator of the estate of his son, Carl Austin Bendiburg (hereinafter "Carl"). Named as defendants are (1) the Cobb County Department of Family and Children Services (hereinafter "DFACS") and three DFACS officials, Pamela S. Dempsey, Sue B. Terry, and Nancy J. Pendergraft; (2) Sallie T. Walker, Judge Pro Tempore of the Juvenile Court of Cobb County; (3) Cobb County, a political subdivision of the State of Georgia; (4) Medical Personnel Pool of Atlanta, Inc. (hereinafter "Med Pool"), a Georgia corporation, and a Med Pool employee, Nancy J. Harrison; (5) Drs. Klaus, Cohen and Weil Orthopaedic Associates, P.C. (hereinafter "the P.C."), a Georgia professional corporation, and a member of the P.C., Dr. Richard Cohen; and (6) Adventist Health Systems/Sunbelt, Inc., d/b/a Smyrna Hospital (hereinafter "Smyrna Hospital"), a Georgia corporation, and a member of its hospital staff, Dr. Baheeg Shadeed.

The court dismissed defendants Walker and Cobb County from this action July 13, 1988.¹ The remaining defendants' motions for summary judgment will be collectively considered herein. They are alleged to be liable under plaintiff's due process claim on the theory that they conspired to cause plaintiff's constitutional injury (Count I).² Similarly, defendants are alleged to be liable to plaintiff for the tort of battery on the theory that effective consent was lacking and that they all acted to cause the alleged injury (Count II).³

B. Events.

The events giving rise to this action are as follows. On September 15, 1985, plaintiff's son, Carl, was seriously injured in an automobile accident and admitted to Smyrna Hospital for treatment. Carl remained in Smyrna Hospital where he received inpatient care until his release November 9, 1985. Throughout the period of his hospitalization, Carl was treated by numerous physicians from various medical specialties. During this time, however, defendant Cohen was his primary treating physician. Among Carl's injuries was a compound fracture of the left leg. Because of the serious nature of this injury, Carl developed an osteomyelitis, or continuing bone infection, in his left leg which required the intravenous (IV) application of antibiotics to treat.

Because of this bone infection and for other reasons relating to his injuries, Carl continued to receive nursing care in his home furnished by defendant Med Pool.⁴ Among the responsibilities of the Med Pool nurses, including defendant Harrison,⁵ was to ensure that Carl continued to receive the proper dosage of IV medication prescribed for his continuing infection.

During the period of Carl's home care, venous access became difficult due to the collapse of Carl's peripheral veins. As a consequence, the Med Pool nurses experienced considerable difficulty in administering the prescribed IV medication to Carl causing him to miss an unspecified number of dosages.⁶ For this reason, plaintiff was asked by Carl's attending physicians and the Med Pool nurses⁷ to consent to the insertion of a Hickman catheter, described as "a long silicone rubber catheter which is inserted in either the subclavian (collar bone) or jugular (neck) vein and then threaded through the patient's upper venous system to the juncture of the superior vena cava and the right atrium of the patient's heart." Plaintiff's Response to Defendant Shadeed's Motion for Summary Judgment at 4. This device would allow direct administration of the prescribed medication and dispense with the need for the peripheral IVs. The Hickman catheter would not have been Carl's first central venous catheter. Approximately ten days after his initial hospitalization, Carl received a subclavian vein catheter. When this catheter failed, a second was inserted October 3, 1985 and a third two days later. Plaintiff claims this poor success rate together with the risks and available alternatives as explained to him by defendant Shadeed and other physicians prompted him to decline the procedure. When this information was conveyed to defendant Shadeed, he responded that he had "no problem" with plaintiff's decision.

Carl was scheduled to meet with defendant Cohen on the afternoon of November 25, 1985. On that date, apparently concerned by the difficulties encountered with Carl's IV treatment and plaintiff's refusal to consent to the Hickman catheter, defendant Harrison contacted DFACS. Speaking to an unidentified DFACS official, defendant Harrison inquired into DFACS' procedures and asked what DFACS could do about Carl's situation. She was told DFACS could intervene only if a physician would state that Carl's failure to receive the Hickman catheter was "a problem."⁸ Carl's appointment with defendant Cohen for that day was subsequently cancelled and re-scheduled for Wednesday, November 27, 1985, the day before the Thanksgiving holiday.⁹

On November 26, 1985, defendant Harrison phoned defendant Cohen and informed him that she had contacted DFACS and explained what she had been told by the unidentified DFACS official. The next day,¹⁰ after again trying to obtain plaintiff's consent to the Hickman catheter, defendant Cohen telephoned plaintiff's sister-in-law, Tersi Bendiburg, and told her, inter alia, a change of custody was a possibility if plaintiff continued to withhold his consent. Defendant Cohen also telephoned defendant Shadeed and told him that a court order had been or would be obtained and asked him to insert the Hickman catheter.

At approximately noon on that day defendant Cohen instructed defendant Harrison to place a second call to DFACS at which time she spoke with defendant Dempsey. Defendant Harrison informed defendant Dempsey of the circumstances regarding Carl's infection, his need for the prescribed antibiotics, his perceived need for the Hickman catheter, and plaintiff's refusal to consent to the procedure. After conferring with her supervisor, defendant Terry, and without any further investigation, defendant Dempsey then prepared and presented to the Juvenile Court of Cobb County an ex parte deprivation petition pursuant to O.C.G.A. § 15-11-23, et seq. After hearing the matter, defendant Walker, acting as Judge Pro Tempore of the Juvenile Court of Cobb County, entered an ex parte order transferring temporary custody of Carl to DFACS and scheduled a hearing for the following Monday, December 2, 1985; i.e., the first available court date after the Thanksgiving holiday.

With temporary legal custody vested in DFACS, defendant Dempsey went to defendant Cohen's office to speak with him about Carl. Defendant Cohen advised defendant Dempsey that he and defendant Shadeed both agreed Carl should be immediately hospitalized for insertion of the Hickman catheter. Carl was then transported by ambulance to Smyrna Hospital followed by defendant Dempsey. Upon her arrival, defendant Dempsey executed a surgical consent form on behalf of DFACS. She then contacted plaintiff to inform him of these events. Carl stayed in the hospital overnight during which time the Smyrna Hospital nurses successfully administered Carl's antibiotics intravenously through a peripheral vein with apparently no difficulty.

Defendant Shadeed arrived at the hospital the next morning to perform the procedure. Sometime after his arrival, defendant Shadeed was shown both the juvenile court order and the executed surgical consent form. He then proceeded to implant the Hickman catheter in Carl without complications. The next day, Carl was discharged from the hospital and sent to a foster home where he remained until December 2, 1985. On that day, a probable cause hearing was held before the juvenile court. Plaintiff attended and was represented by counsel. Plaintiff was given an opportunity to request a hearing wherein DFACS would bear the burden establishing actual deprivation, but apparently declined. Custody of Carl was restored to plaintiff through a consent agreement between plaintiff and DFACS, and plaintiff had no further contact with DFACS after the hearing. Less than two weeks later, Carl suffered a massive pulmonary embolus and died. This action followed.

II. CONCLUSIONS OF LAW.

Defendants' summary judgment motions must be granted if "there is no genuine issue as to any material fact and ... they are entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Defendants bear the initial burden of demonstrating that no genuine issue of material fact exists in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The burden then shifts to plaintiff "to go beyond the...