Hinson v. Edmond

• Decision Date: 20 October 1999
• Docket Number: No. 98-9178,98-9178
• Citation: 192 F.3d 1342
• Parties: (11th Cir. 1999) FITZGERALD COLUMBUS HINSON, Plaintiff-Appellee, v. RODERICK E. EDMOND, M.D., Defendant-Appellant
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1342

192 F.3d 1342 (11th Cir. 1999)

FITZGERALD COLUMBUS HINSON, Plaintiff-Appellee, v. RODERICK E. EDMOND, M.D., Defendant-Appellant.

No. 98-9178

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Oct. 20, 1999

Appeal from the United States District Court for the Northern District of Georgia D. C. Docket No. 1:97-CV-431-JEC

Before EDMONDSON and BIRCH, Circuit Judges, and OWENS^*, Senior District Judge.

EDMONDSON, Circuit Judge:

In this case, the defendant, a privately employed prison physician, appeals the district court's determination that he was ineligible for qualified immunity and its denial of his motion for summary judgment. Because we conclude that the defendant, due to his status as a privately employed prison physician, is ineligible to advance the defense of qualified immunity and that material issues of fact exist on whether the 8th Amendment was violated at all, we AFFIRM the district court's order and REMAND for further proceedings.

BACKGROUND

Plaintiff is an inmate in the DeKalb County Jail. Defendant is the Medical Director for the jail. Defendant is not a government employee; he is employed by Wexford Health Sources, a for-profit company with which DeKalb County has contracted for medical services for the jail. In June 1995, plaintiff injured his Achilles tendon playing basketball at the jail. On 11 January 1996, surgery was performed on plaintiff's Achilles tendon. In late August 1996, John Schmidt, the DeKalb County Jail Health Services Coordinator, noticed that plaintiff was still in a wheelchair and wearing a hospital gown seven months after surgery and asked defendant to investigate. Defendant saw plaintiff on 26 August, noticed atrophy in his leg, and asked the nurse to check on plaintiff's appointment at Grady Hospital ("Grady").

On 18 September 1996, plaintiff was examined by a physician's assistant who defendant says arranged for a follow-up appointment to be scheduled for plaintiff at Grady. On 7 October 1996, Defendant says he wrote a consult request form to Grady because plaintiff had yet to be scheduled for an appointment. But, the first written record of a consult request is dated 7 November. Grady set an appointment for 8 November. Plaintiff did go to Grady that day and began a program of rehabilitation.

Later, plaintiff filed a complaint against DeKalb County, Sheriffs Morris and Dorsey,¹ and John Does 1-10 asserting claims under 42 U.S.C. 1983. The complaint was then amended to include Dr. Edmond. The district court granted summary judgment for all defendants except Dr. Edmond. About Edmond, the court determined that (1) Edmond was not entitled to qualified immunity because the preexisting law was clear that an unreasonable delay in medical treatment was an 8th Amendment violation, and (2) a material issue of fact existed on whether Edmond violated plaintiff's 8th Amendment rights. Edmond appealed.

While this appeal was pending, the parties were directed to file supplemental briefs on the applicability of Richardson v. McKnight, 117 S.Ct. 2100 (1997), to the issue of whether Dr. Edmond was entitled to raise a qualified immunity defense at all.²

DISCUSSION

In Richardson v. McKnight, 117 S.Ct. 2100 (1997), the Supreme Court looked at the history and purposes of qualified immunity and determined that they did not support the extension of qualified immunity to prison guards who were employed by a private, for-profit corporation that had contracted with the state to manage the prison.

First, the Court determined that, although historically prisons had been run by both private and state actors, no "firmly rooted" tradition of immunity for privately employed prison guards had developed. See id. at 404-06, 117 S.Ct. at 2104. Second, the Court discussed three purposes of qualified immunity: (1) protecting against unwarranted timidity on the part of government officials, (2) ensuring that talented candidates are not deterred from entering public service, and (3) preventing the distraction of governmental officials by lawsuits. The Court then concluded that, because of the influence of market forces on private employers, these same considerations did not support the extension of qualified immunity to the privately employed prison guards. See id. at 2106-07.

For the same reasons that the Richardson Court declined to extend the doctrine of qualified immunity to privately employed prison guards, we decline to extend qualified immunity to this privately employed prison physician.

Under common law, no "firmly rooted" tradition of immunity applicable to privately employed prison physicians exists under circumstances such as these. That medical malpractice -- negligence by a physician -- is insufficient to form the basis of a claim for deliberate indifference is well settled. See Estelle v. Gamble, 97 S.Ct. 285, 292 (1976); Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995). Instead, something more must be shown. Evidence must support a conclusion that a prison physician's harmful acts were intentional or reckless. See Farmer v. Brennan, 114 S.Ct. 1970, 1977-79 (1994); Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996) (stating that deliberate indifference is equivalent of recklessly disregarding substantial risk of serious harm to inmate); Adams, 61 F.3d at 1543 (stating that plaintiff must show more than mere negligence to assert an Eighth Amendment violation); Hill v. DeKalb Reg'l Youth Detention Ctr, 40 F.3d 1176, 1191 n.28 (11th Cir. 1994) (recognizing that Supreme Court has defined "deliberate indifference"as requiring more than mere negligence and has adopted a "subjective recklessness" standard from criminal law); Qian v. Kautz, 168 F.3d 949, 955 (7th Cir. 1999) (stating "deliberate indifference" is synonym for intentional or reckless conduct, and that "reckless" conduct describes conduct so dangerous that deliberate nature can be inferred).

The parties have not been able to point to, and independent research -- including a look at the sources cited by the Supreme Court in Richardson -- does not reveal, cases which show a common law tradition of immunity from liability for privately employed prison physicians for acts amounting to recklessness or intentional wrongdoing. Instead, case law shows that even state physicians may be subject to liability for intentional torts. See Irwin v. Arrendale, 159 S.E.2d 719, 725 (Ga. Ct. App. 1967) (stating that prison medical director could be sued for intentional tort of battery if prisoner was x-rayed without consent or proper medical justification); see also Jackson v. Miller, 335 S.E.2d 438, 439 (Ga. Ct. App. 1985) (stating that doctor employed by public clinic was not allowed to advance defense of immunity in a malpractice action because doctor was not acting as government agent when treating patient but was only acting as physician).

And, although the Supreme Court, in passing, mentioned that "apparently, [in England], the law did provide a kind of immunity for certain private defendants, such as doctors or lawyers who performed services at the behest of the sovereign," see Richardson, 117 S.Ct. at 2105, the circumstances here do not seem to be the kind of situation encompassed by that statement. The sources cited by the Court suggest that, under certain circumstances, English doctors and lawyers were immune from liability for acts amounting to negligence. For acts amounting to recklessness or intentional wrongdoing, as are alleged here, immunity did not exist, however. See Tower v. Glover, 104 S.Ct 2820, 2825 (1984) (stating that "English barristers enjoyed in the 19th Century...a broad immunity from liability for negligent misconduct....Nevertheless, it appears that even barristers have never enjoyed immunity from liability for intentional misconduct"); Joel P. Bishop, Commentaries on Non-Contract Law 704 (Chicago, T.H. Flood & Co.1889) (same); Bishop, supra, 708 (1889) (stating that physicians could be liable for criminal malpractice but were likely immune from liability for civil negligence).

In addition to the lack of historical support for immunity, the public policy reasons for qualified immunity do not justify the extension of qualified immunity in this case. The Richardson Court suggested that the market forces to which a private company is subjected negate the fears of "unwarranted timidity" in the performance of duties. The record in this case reflects just that.

Before December 1995, the medical contractor for the DeKalb County Jail was a different entity, Correctional Medical Services ("CMS"). The record reflects that, before the change from CMS to Wexford, county prison personnel complained about CMS's medical records systems and medical staffing levels. In December 1995, Wexford Health Sources replaced CMS. Furthermore, the record reflects that, after Wexford took over, DeKalb County officials had many meetings with Wexford officials and noted the county's concern that, due to the increased inmate population, the staffing level of the medical clinic might be inadequate. Wexford hired additional medical personnel.

Also, as was the case in Richardson, Wexford Health Sources was systematically organized to perform a major administrative task for profit. Wexford was contractually obligated to provide for the delivery of all inmate health care services.³ With the exception of the county-employed medical personnel who handle the tuberculosis program and some other privately employed mental health personnel, Wexford was responsible for recruiting, interviewing, hiring, training and supervising the health care staff that handles the general medical needs of an inmate population of approximately 3000. Dr. Edmond was the medical director of the jail and was in charge of overseeing the general policies for medical care and of implementing systems to provide greater quality of care at the jail. Wexford also maintained the medical records department for the jail and designed and implemented...