Herbert v. District of Columbia, 93-CV-407.

• Decision Date: 13 August 1998
• Docket Number: No. 93-CV-407.,93-CV-407.
• Citation: 716 A.2d 196
• Parties: Katherine HERBERT, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: D.C. Court of Appeals

716 A.2d 196

Katherine HERBERT, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 93-CV-407.

District of Columbia Court of Appeals.

Argued En Banc November 19, 1997.

Decided August 13, 1998.

Judy L. Feinberg, Washington, DC, with whom Andrea L. Koyner was on the brief, for appellant.

Edward E. Schwab, Assistant Corporation Counsel, with whom Jo Anne Robinson, Interim Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee District of Columbia.

Before WAGNER, Chief Judge, and TERRY, STEADMAN, SCHWELB, FARRELL, KING, and REID, Associate Judges.

SCHWELB, Associate Judge:

The question presented is whether the District of Columbia is vicariously liable under the "non-delegable duty" doctrine to a prisoner at the District of Columbia jail for injuries resulting from medical malpractice on the part of an employee of an independent contractor, where the contractor was providing medical services at the jail under the terms of a contract with the District's Department of Corrections (DOC). We conclude that the "non-delegable duty" doctrine has no application and that the plaintiff is not entitled to any recovery against the District.

I. FACTUAL BACKGROUND

The facts relating to this controversy are set forth in detail in Judge Terry's opinion for a majority of the division that initially heard this appeal. See Herbert v. District of Columbia, 691 A.2d 1175, 1178-79 (D.C.1997) (Herbert I). We summarize only those facts relevant to the single issue addressed in this opinion.

In 1986, DOC and Professional Development Corporation (PDC) entered into a contract under which PDC agreed to provide health care services for inmates of the District of Columbia Jail. While the contract was in effect, the jail's infirmary was staffed entirely by physicians, nurses, and physician's assistants, all of whom were employees of PDC. The performance of the contract was monitored by DOC personnel, but District employees were not authorized by the contract to, and they did not, provide medical care to prisoners at the jail or supervise the care provided by PDC.

On July 16, 1987, Katherine Herbert, a prisoner at the jail, was admitted to the infirmary after she exhibited symptoms of nausea and abdominal cramping secondary to withdrawal from the use of narcotics. Charles Lawson, who was then employed by PDC as a physician's assistant, injected approximately fifty cubic centimeters of a dextrose or dextrose-and-sodium chloride solution into each of Ms. Herbert's thighs. At trial, all parties stipulated that these injections were entirely unauthorized and constituted medical malpractice by Lawson. As a result of this inappropriate treatment, Ms. Herbert developed cellulitis, suffered severe and debilitating pain, and substantially lost the use of both of her legs.

II. PRIOR PROCEEDINGS

On December 17, 1987, Ms. Herbert filed suit against the District, PDC, and several individual defendants. In pretrial motions and at trial, Ms. Herbert alleged, among other things, that even if no negligence was shown on the part of the District, the District was liable to her for the malpractice committed by Lawson and PDC because the District's duty to provide appropriate health care to inmates at the jail was non-delegable. The motions judge rejected this contention, ruling that "the District of Columbia has a non-delegable duty only insofar as the plaintiff has suffered a constitutional deprivation." Because Ms. Herbert had raised no constitutionally based claim, the motions judge ruled against her on the issue of non-delegable duty. The trial judge adhered to this ruling at trial and directed a verdict in favor of the District.¹ Judgment was entered against PDC and Lawson in the amount of $150,000, but these defendants apparently lack the financial resources to satisfy the judgment.

Ms. Herbert noted a timely appeal, and on April 10, 1997, in Herbert I, a divided panel of this court reversed the judgment in favor of the District. Specifically, the court held that the District's duty to provide reasonable, non-negligent medical care for prisoners in its custody is non-delegable, and that it was therefore error to grant the District's motion for a directed verdict. On July 31, 1997, we granted the District's petition for rehearing en banc and vacated the decision in Herbert I. Herbert v. District of Columbia, 698 A.2d 1017 (D.C.1997) (en banc) (per curiam). We now affirm the judgment of the trial court.²

III. LEGAL DISCUSSION

In the District of Columbia, the DOC has statutory responsibility for "the safekeeping, care, protection, instruction, and discipline of all persons committed to its institutions." D.C.Code § 24-442 (1996). Section 24-442 encompasses the common law rule, which requires prison authorities and employees to exercise reasonable care in carrying out these obligations. Hughes v. District of Columbia, 425 A.2d 1299, 1302 (D.C.1981). "It is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Spicer v. Williamson, 191 N.C. 487, 132 S.E. 291, 293 (1926)). Indeed, the District acknowledges in its brief that it has a common law obligation to exercise "reasonable care in providing prisoners with access to medical services...." It is therefore undisputed that the District may be held liable for its own negligence in the medical treatment of persons confined in its correctional facilities.

Ms. Herbert's conception of the District's responsibilities in this area, however, goes well beyond the obligation to exercise reasonable care. Insisting that the District's duty to its prisoners is "non-delegable," Ms. Herbert is effectively asking this court to impose liability upon the District irrespective of whether or not the District was at fault. Under the "non-delegable duty" doctrine, the District would be obliged to compensate the plaintiff even if District officials exercised due care in the selection and supervision of a health care provider, and even if the District's conduct has been in all respects free of negligence. Ms. Herbert cites no statutory authority or dispositive judicial precedent for the imposition in these circumstances of liability without fault, and we are not prepared to adopt by judicial pronouncement a doctrine which would substantially broaden the District's responsibility for acts or omissions beyond its control.

Although prison personnel have a duty to exercise due care, we have held that they are not insurers of an inmate's safety or well-being. Hughes, supra, 425 A.2d at 1302. This court has recently reiterated that "liability for individualized fault is the norm," and that vicarious liability without fault "is regarded as an exceptional solution." Traudt v. Potomac Elec. Power Co., 692 A.2d 1326, 1339 (D.C.1997) (citation and internal quotation marks omitted). If we were to adopt the rule urged upon us by Ms. Herbert, then the District would become a guarantor of satisfactory performance by PDC and its employees, even though the District has no control over that performance in a given case. There is obvious tension between such a doctrine and the principles enunciated in Hughes and Traudt.

In Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973), the parents of Reagan Logue brought suit against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), alleging that the federal Bureau of Prisons (BOP) was responsible for Logue's death by suicide. Logue, a federal prisoner, had hanged himself while he was confined, pending trial, in the Nueces County, Texas, jail. The county had contracted with the BOP for the safekeeping, care and subsistence of federal prisoners. Logue's parents contended, inter alia, that employees of the jail had been negligent in their surveillance of Logue,³ and that the United States was responsible for the negligence of the Nueces County sheriff's office because, in light of the county's contract with the BOP, the officials of the jail should be deemed to be employees of the federal government, and because the BOP had a "non-delegable" duty under 18 U.S.C. § 4042⁴ to assure the exercise of reasonable care by officials at state or local facilities at which federal prisoners were housed. Id. at 526-28 & n. 7, 93 S.Ct. 2215. The Supreme Court unanimously rejected this position:

We are not persuaded that employees of a contractor with the government, whose physical performance is not subject to governmental supervision, are to be treated as acting on behalf of a federal agency simply because they are performing tasks that would otherwise be performed by salaried employees of the government.

Id. at 531-32, 93 S.Ct. 2215 (internal quotation marks omitted). Although there are distinctions between Logue and the present case,⁵ we deem persuasive for present purposes the Court's rejection, in a scenario similar to ours, of the plaintiffs' "non-delegable duty" theory.⁶

In Rivers v. State, 159 A.D.2d 788, 552 N.Y.S.2d 189 (1990) (Rivers II), a surgeon performed a hernia operation on a prison inmate. The inmate alleged that the surgery had been negligently carried out. The State did not employ or even select the surgeon, although the State's referring doctor knew that the surgeon performed operations at the hospital in question. The trial court held that the State was liable for the surgeon's negligence on the theory that the State's duty to provide health care to the inmate was non-delegable, and that the surgeon's failure to exercise due care was therefore attributable to the State. Rivers v. State, 142 Misc.2d 563, 537 N.Y.S.2d 968, 971-74 (Ct.Cl. 1989) (Rivers I). The appellate court reversed, holding that the State should not be held to be "the guarantor of the adequacy of medical services...