Estate of Cole by Pardue v. Fromm

• Decision Date: 27 November 1995
• Docket Number: No. IP 93-1015-C-H/F.,IP 93-1015-C-H/F.
• Citation: 941 F.Supp. 776
• Parties: The ESTATE OF Max G. COLE, by its Administratrix Lois PARDUE, and Lois Pardue, Plaintiff, v. Jackie FROMM, Phill Spires, Dan Beck, Katie Geier Easton, Clement Morris, and Nancy Butler, all Individually, Defendants.
• Court: U.S. District Court — Southern District of Indiana

Page 776

941 F.Supp. 776

The ESTATE OF Max G. COLE, by its Administratrix Lois PARDUE, and Lois Pardue, Plaintiff, v. Jackie FROMM, Phill Spires, Dan Beck, Katie Geier Easton, Clement Morris, and Nancy Butler, all Individually, Defendants.

No. IP 93-1015-C-H/F.

United States District Court, S.D. Indiana, Indianapolis Division.

November 27, 1995.

Hamid R. Kashani, Indianapolis, IN, David A. Nowak, Columbus, IN, for plaintiff.

Robert J. Shula, Richard S. Pitts, Lowe Gray Steele & Hoffman, Indianapolis, IN, Burton M. Harris, Locke Reynolds Boyd & Weisell, Indianapolis, IN, for defendants.

ENTRY ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

HAMILTON, District Judge.

The estate of Max G. Cole and Mr. Cole's mother brought this action against a doctor and several other staff at Wishard Memorial Hospital in Indianapolis. Cole was a pretrial detainee in the Marion County jail who was transferred to Wishard. He was classified as a "potential suicide," but not a "high risk suicide" patient. He managed to obtain a plastic bag and committed suicide by suffocation. The plaintiffs assert that the defendants acted under color of state law and were deliberately indifferent to the risk that Cole would commit suicide.

Currently pending before the court are two motions for summary judgment. One was filed by defendants Jackie Fromm, Phill Spires, Dan Beck, Katie Geier Easton, and Clement Morris collectively. The other was filed by the remaining defendant, Dr. Nancy Butler.¹ The case raises a number of potential issues, but defendants seek summary judgment only on the grounds that there is no evidence that they were deliberately indifferent to Cole's medical needs and that they are entitled to qualified immunity. Plaintiffs have responded to both motions. (Defendants have also filed a motion to strike the affidavit of plaintiffs' expert, Dr. Larry M. Davis. Defendants' motion to strike will be denied in most respects.) The facts, taken in the light most favorable to plaintiffs, would not allow a jury to find that any defendant was deliberately indifferent to Cole's medical needs, including the risk that he would commit suicide by any means, including the plastic bag. The court will therefore grant summary judgment for all defendants and enter final judgment against plaintiffs.

Undisputed Facts

The following facts are either undisputed or reflect the evidence in the light most favorable to plaintiffs. On July 1, 1991, Max Cole was a pretrial detainee being held at the Marion County Jail in Indianapolis, Indiana. On that day he was transferred from the jail to Wishard Memorial Hospital, reportedly because he had been hitting his head against a concrete wall at the jail and had been in a fight with another inmate. Cole was treated initially for abrasions to his face and forehead, and Dr. Alan Schmetzer, Chief of Psychiatry Services for Wishard, then assessed Cole's mental health status. Dr. Schmetzer noted that Cole denied any suicidal ideation and determined that neither his injuries nor his mental health status required admission to the hospital. Dr. Schmetzer thus recommended that Cole be returned to the jail with a follow-up examination to be conducted on July 3, 1991. After his examination of Cole, Dr. Schmetzer's shift ended and he left the hospital.

After Dr. Schmetzer's examination, but before Cole could be returned to jail, he became agitated, out of control, and tried to leave the emergency room. Cole was placed in restraints and Dr. Verkota Rao, a physician specializing in psychiatry, reevaluated him. Dr. Rao determined that Cole was experiencing symptoms of a drug-induced psychosis and he ordered Cole admitted to the hospital in the unit called "BU2." Dr. Rao placed Cole on potential assault, suicide, and elopement precautions at the time of his admission. He also prescribed Navane, an anti-psychotic drug, for Cole.

There are two levels of precautions under Wishard's policies relating to patients with possible suicidal tendencies. One level is known as "potential suicide precautions." The other level is known as "high risk suicide precautions." A doctor's order is required either to institute or to discontinue precautions at either level. The stated purpose of the "potential suicide" precautions level is to "provide ongoing assessment and intervention of patients who exhibit or verbalize suicidal ideations." Butler Dep., Pl. Ex. 11. Although the policy requires "close observation" by the caregiver, regular but not constant monitoring of the patient's behavior is appropriate. Id. Under the policy, the areas to which the patient has access are searched for contraband initially and thereafter "as needed." Id. Patients on potential suicide precautions may generally move freely about the BU2 unit and have access to the restrooms.

The purpose of the "high risk" precautions level is to "provide a safe and therapeutic environment for those patients who exhibit or verbalize serious suicidal intention." Butler Dep., Pl.Ex. 12. Under the high risk classification, there is continuous one-to-one monitoring of the patient. Id. Upon initiation of the precautions and during every shift thereafter, the patient's room, locker, and personal belongings are carefully searched for contraband. Id.

Defendant Dr. Nancy Butler is a board certified psychiatrist and Medical Director of In-Patient Psychiatry at Wishard. On July 2, the day following Cole's admission, Dr. Butler reviewed Cole's chart and conducted an independent mental status examination. She found that Cole was not contemplating suicide at that time and did not need a change in the "potential suicide" precautions assigned by Dr. Rao. In examining Cole, Dr. Butler found that he said he heard voices that told him, among other things, to hurt himself and others. Based on that statement and his agitation, Dr. Butler felt it proper to keep Cole on precautions. However, she did not believe that Cole was a high risk suicide patient at that time because he spoke logically and coherently, his hallucinations seemed mostly directed toward hurting others, and he disavowed a desire or need to act on his hallucinogenic suggestions. Moreover, Dr. Butler concurred with Dr. Schmetzer that Cole's behavior was likely caused by drug-induced psychosis as opposed to a personality disorder. She continued the Navane prescription and also prescribed Cogentin to combat the side effects of Navane.

The next day, July 3, 1991, Dr. Butler observed Cole and reviewed his chart. He had continued fluctuations in his behavior that Dr. Butler deemed consistent with a drug-induced psychosis. Dr. Butler's opinion at the time was that Cole did not need a change in his precautions because he did not exhibit signs suggesting he was contemplating suicide. Dr. Butler did not observe Cole after July 3.

On July 4, 1991, Dr. Schmetzer observed Cole. Late in the afternoon on July 4, the side effects from the medication began to subside. At 6:00 p.m., Cole was observed to be in his assigned room, asleep, and with no further signs of distress noted. Similar observations were made at 7:00 p.m., 8:00 p.m., and 9:00 p.m. At 9:45, Cole was observed to be alert with no complaints of medication side effects. At 9:55 p.m., Cole came to the dayroom in the unit and requested a cigarette from defendant Fromm, the nurse on duty. Fromm gave Cole a cigarette and recalls that he told her that he felt better. Cole did not appear to Fromm to be agitated or depressed, and he made no mention at that time of harming himself.

About 25 minutes later, at approximately 10:22 p.m. on July 4, Cole was found to have committed suicide in his room. Tana Wurster, another nurse on duty, found Cole with a plastic bag over his head. She removed the bag, called to him and tried to shake him, but was unable to revive him. She called for help and ordered defendants Spires and Morris to carry Cole to the men's restroom so that he could be placed in the shower. Wurster testified that she thought Cole might be holding his breath because she had spoken to him not long before she found him. Fromm heard the commotion in Cole's room from the attempt to get him to the shower and investigated. When Fromm arrived, she instructed Spires and Morris to put Cole down, checked for a pulse, determined that he was not breathing, and initiated CPR. Defendant Easton, also on the scene by that time, returned to the nurses station and called for the "code team," or emergency help. The code team arrived and took over CPR efforts. From that point no member of the BU2 staff had any further involvement with Cole's care. Cole was pronounced dead at approximately 11:00 p.m.

The defendants all had varying degrees of contact with Cole. Jackie Fromm is a licensed practical nurse who had worked at Wishard in that capacity for approximately five years prior to Cole's admission. During the four days of Cole's hospitalization, Nurse Fromm was never assigned to his care. However, she interacted with Cole in the course of her regular nursing duties. She testified that in the course of that interaction, she never observed any behavior that would suggest to her that there was need for a change in Cole's precautions. She documented his denial of suicidal tendencies on her nursing observation chart.

Katie Geier Easton was a graduate nurse at the time of Cole's hospitalization, which means she had just completed her bachelor's degree in nursing but had not yet taken her Registered Nursing licensure examination. She had been employed at Wishard for six weeks prior to Cole's death. Easton was never responsible for Cole's health care. Her only contact with Cole was during the course of hall checks she made for all patients. During those hall checks, Easton observed Cole once on July 2, once on July 3, and four times on July 4. She did not observe on any of these occasions any behavior that suggested to her that Cole intended to harm himself.

Daniel Beck was a Nursing Mental Health...