Cosby v. United States
| Decision Date | 06 February 2012 |
| Docket Number | No. 5:09-CV-192 (CAR),5:09-CV-192 (CAR) |
| Parties | JEANNIE L. COSBY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Middle District of Georgia |
Currently before the Court is the United States Government's Motion for Summary Judgment. [Doc. 43]. Plaintiff Jeannie L. Cosby filed suit against the Government, asserting claims arising from its alleged failure to provide recommended medical care and follow procedures for transfer, which, Plaintiff asserts, led to the amputation of half of her right foot. Plaintiff alleges that the Government was negligent based on the conduct of its employees, the United States Marshals Service ("USMS") and the Bureau of Prisons ("BOP"), pursuant to the Federal Torts Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"). The Government has filed a Motion for Summary Judgment on grounds that it is immune from suit under the FTCA because the Irwin County Detention Center ("ICDC"), where Plaintiff was detained, is an independent contractor. The Government argues that there is no evidence that it received anyinformation about Plaintiff's condition after ICDC's initial medical request, and therefore it cannot be held liable. Having read and considered the arguments of the parties and the relevant law, the Court finds that there is no genuine issue of material fact as to whether ICDC was an independent contractor. However, the Government has failed to carry its burden under Rule 56 of the Federal Rules of Civil Procedure with regard to Plaintiff's underlying negligence action. Thus, the Government's Motion for Summary Judgment [Doc. 43] is GRANTED in part and DENIED in part.
The relevant facts in the light most favorable to Plaintiff are as follows: Plaintiff, Jeannie L. Cosby, is a Type II diabetic and is currently imprisoned in North Carolina after pleading guilty to federal charges. Between pleading guilty in the spring of 2007 and arriving at the North Carolina Correctional Institute for Women on January 14, 2008, where she now resides, Plaintiff was transferred to several detention centers around the country. Most relevant to this action, Plaintiff was transferred to ICDC in Irwin County, Georgia, on November 2, 2007. Plaintiff remained at ICDC until she was transferred to another facility on December 18, 2007. 1 During her time at ICDC, Plaintiff was in the custody of the USMS.
Section 4042 of Title 18 of the United States Code outlines the duties of the BOP. Section 4042 provides, in relevant part that, "[t]he Bureau of Prisons, under the direction of the Attorney General, shall ... provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States." 18 U.S.C. § 4042(a)(2).
The duties of the USMS, however, are best explained by looking first at the relationship between the USMS and ICDC. The USMS housed Plaintiff at ICDC pursuant to an Intergovernmental Service Agreement ("Agreement"), a formal written contract between the USMS and ICDC. The Agreement provides that ICDC is responsible for the housing, care, and safekeeping of federal prisoners in exchange for a fixed per diem payment by the USMS for each prisoner held.
In part, the Agreement specifies that ICDC is responsible for costs of basic medical care that it is able to provide to USMS prisoners on-site. However, in the event that a medical condition requires outside treatment beyond basic medical care, the medical department at ICDC must request the USMS's authorization. The USMS must pre-approve all outside medical treatment for USMS prisoners, other than emergency care.
When the USMS determines whether it should approve medical treatment, it refers to USMS Directive 9.4: Prisoner Health ("Directives"). In short, these Directives outline the duties of the USMS with regard to the health of federal prisoners. In part, the Directives state that upon recommendation of a physician, the USMS will acquire and pay for "reasonable and medically necessary care" of a USMS prisoner. Doc. 48-6, p. 1. In most cases, the USMS must determine if the medical care is "reasonable and medically necessary" by considering listed criteria. Id. at 2. However, in some specific cases, the USMS has predetermined that certain conditions automatically require treatment, most relevantly: "limb-threatening" conditions and "chronic conditions ... [that] if left untreated would likely lead to a significant loss of function or death." Id.
The Directives also provide several "Medical Clearance Requirements for Prisoner Movement or Transfer." Id. at 3. Among the requirements, the USMS district management must "review all USMS prisoner medical needs prior to placement at a detention facility," and "ensure proper arrangements are made to provide continuity of medical care for USMS prisoners." Id. at 3-4. Additionally, when transferring prisoners with "serious chronic medical conditions," the Directives provide that those prisoners "should be evaluated for transfer based on their medical needs and continuity of care requirements." Id. at 4.
George Lee Banks is the Supervisory Deputy U.S. Marshal for the Western District of North Carolina, assigned to the Asheville, North Carolina office. As Supervisory Deputy, Banks is in charge of the overall management of USMS District prisoners, including Plaintiff. In other words, Banks was in charge of the managerial aspect of Plaintiff's stay at and transfer from ICDC. In addition to ensuring that the District is abiding by the Directives, he also arranges prisoner transfer and approves outside medical treatment of USMS prisoners, both in accord with the Directives.
On November 17, 2007, Plaintiff began experiencing severe pain in her right heel, similar to the pain that she had previously felt when she broke her left heel in March 2007. She informed ICDC that her foot may be broken and requested that she be seen by a doctor and have an x-ray taken of her foot. Because such medical services were outside of ICDC's available on-site care, ICDC sent the USMS an off-site medical request for its approval. Two days later on the 28th, Plaintiff's request was authorized by the USMS.
Plaintiff was seen by Dr. Howard McMahan on December 3. Although Plaintiff complained of pain in her right foot and heel, Dr. McMahan was also concerned with anulcer and callous that Plaintiff had on each of her fifth toes.2 An ulcer in a diabetic patient can develop by increased continuous pressure on weight bearing areas, leading to the death of tissue, or gangrene. Osteomyelitis is an infection that can form in the bone surrounding the ulcer. Most often when a patient develops osteomyelitis and gangrene, as was the case here, treatment requires amputation of the affected area. Dr. McMahan testified that he was unable to determine the severity of the ulcer or when it had begun to develop at the time of Plaintiff's appointment.
In Plaintiff's medical report, which was part of her medical file that the USMS is directed to review prior to transfer, Dr. McMahan noted several assessments, including, "Diabetes mellitus type II" and "Abscess." Doc. 52, Ex. 1, p. 2. He also recommended a course of treatment that included taking x-rays of both of her feet, and a referral to Dr. Kramer, a podiatrist, to fit Plaintiff for diabetic shoes. Diabetic shoes would relieve the pressure and friction on the ulcerated area of her foot, decreasing further damage and progression of her diabetic foot complex. Additionally, Dr. Kramer would be able to more exactly determine the extent and severity of Plaintiff's ulcer. Finally, Dr. McMahan ordered that Plaintiff come back for a follow-up appointment in one week. Dr. McMahan's report does not indicate that the follow-up appointment was ever made.
On December 7, Plaintiff went to Irwin County Hospital to receive Dr. McMahan's recommended x-rays. Notably, the x-ray of her right foot taken at this time did not indicate any evidence of osteomyelitis, an infection in the bones surrounding the ulcer.3 On December 18, 2007, more than ten days from the date Plaintiff's x-rays were taken; Plaintiff was transferred from ICDC to Paulding County Jail, another detention center presumably4 with the same or similar Agreement with the USMS. Although Banks does not appear to have testified about the specifics of Plaintiff's case, he did state that generally when prisoners are transferred, his district performs an interview with the prisoner upon their admission to a new facility; however, his district does not do an "on-the-way-out medical evaluation." Banks Dep. 20:15-17.
Dr. McMahan ultimately never read Plaintiff's x-rays, nor did he see her in a follow-up appointment. Other than having x-rays taken, none of Dr. McMahan's recommendations were followed, including his recommendation that Plaintiff see Dr. Kramer who would be able to determine the severity and extent of her foot ulcer and fit her for diabetic shoes.
After the initial diagnosis and recommendations were made by Dr. McMahan on December 3, 2007, Plaintiff was transferred to Paulding County Jail and later to the federal prison in Oklahoma City. On January 14, 2008, Plaintiff eventually returned to the North Carolina prison system and was no longer in USMS custody. Shortly after her arrival, doctors removed the front half of Plaintiff's right foot due to the osteomyelitis in the bones surrounding the deep ulcerative area that had developed into gangrene. Neither party disputes that the osteomyelitis and gangrene formed between Plaintiff's initial appointment with Dr. McMahan on December 3 and her arrival in North Carolina on January 14. More importantly, neither party disputes that her condition developed, at least in part, between Plaintiff's initial appointment and the date of her transfer...
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