Howard v. City of Columbus

• Decision Date: 15 July 1999
• Docket Number: No. A99A1258., No. A99A0680
• Citation: 239 Ga. App. 399,521 S.E.2d 51
• Parties: HOWARD et al. v. CITY OF COLUMBUS et al. Howard et al. v. Chase.
• Court: Georgia Court of Appeals

521 S.E.2d 51

239 Ga. App. 399

HOWARD et al. v. CITY OF COLUMBUS et al.

Howard et al. v. Chase.

Nos. A99A0680, A99A1258.

Court of Appeals of Georgia.

July 15, 1999.

Reconsiderations Denied July 29, 1999.

Certiorari Denied and Certiorari Dismissed January 14, 2000.

Burkey & Burkey, Frederick D. Burkey, Roswell, for appellants.

Page, Scrantom, Sprouse, Tucker & Ford, W.G. Scrantom, Jr., James C. Clark, Jr., Eugene H. Polleys, Jr., Columbus, for appellees (case no. A99A0680).

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., Clarence M. Mullin, Carter R. Page, Columbus, for appellee (case no. A99A1258). ELDRIDGE, Judge.

At 1:20 a.m. on May 25, 1992, James Howard, Jr., a prisoner of the City of Columbus, Muscogee County, died of diabetic ketoacidosis at Columbus Medical Center. Conswella L. Howard, his minor daughter, by and through her natural and legal guardian, Stephanie Corbin, brought a wrongful death action, and Stephanie Corbin, as temporary administratrix of the estate of James Howard, Jr., brought a personal injury action against the City of Columbus, Muscogee County; J.E. "Gene" Hodge, individually and in his official capacity as Sheriff of Muscogee County; Dr. Jerry Stephen Chase, individually and in his official capacity as jail medical director; and three jail licensed practical nurses, Mildred Chapman, Ava J. McLeod, and Lawrence Thompson, individually and in their official capacities. Plaintiffs contended that Howard received such grossly incompetent and inadequate medical care or such refusal to provide essential care so as to evidence an intentional violation of his constitutional rights. The following were the basis for plaintiffs' actions: Counts 1 through 4 were premised upon a violation of the statutory duty to provide medical care under OCGA § 42-5-2, and the common law duty and the state constitutional duty as personal injury and wrongful death actions; Count 5 was a medical malpractice action for personal injury and wrongful death; and Count 6 was a 42 USC §§ 1983 and 1988 action for violation of due process and the Eighth Amendment of the United States Constitution prohibiting cruel and unusual punishment.

After extensive discovery, all the defendants moved for summary judgment on all counts. On August 6, 1998, oral argument was held. On August 11, 1998, the trial court granted summary judgment on all counts against the plaintiffs. On December 10, 1998, the trial court granted Dr. Chase's motion for summary judgment as well. Plaintiffs timely filed their notice of appeal.

The record shows that Howard was a diabetic with hypertension. By policy, the intake screening in the Muscogee County jail was performed by a deputy with no medical training who did not take a medical history for diabetes or hypertension and looked only for observable physical conditions or injuries. Thus, Howard's jail records did not flag his medical condition. After his incarceration on October 1, 1991, lack of proper diet and medication caused Howard's diabetic condition to worsen over time. By April 1992, Howard's diabetic condition had deteriorated to the extent that he appeared visibly sick to a lay person.

On April 23, 1992, Howard's cellmate, Melson, prepared a sick-call slip for Howard, because Howard was too weak to do it for himself. Within the week, Melson prepared two or three more sick-call slips for Howard. By the first week in May, Howard experienced symptoms of overheating, craving of water, dizziness, constipation, and fainting. After one fainting spell, Howard was examined in the cell by a deputy. At other times, when the cellmates told the jailors that Howard was seriously sick or had fainted, the jailors did not even look at him or do anything to determine if he was sick. Howard lost considerable weight, i.e., 30 to 40 pounds, and had a shrunken face, indicating to a lay person that he was profoundly sick and had a serious medical need.

On May 22, 1992, Officer J.V. Kennedy learned that Howard was sick. Kennedy talked by telephone to LPN Mildred Chapman in the clinic at 8:30 a.m. Chapman did nothing. Kennedy called again at 10:30 a.m., but Chapman said that the clinic was full. At 2:00 p.m., Kennedy saw Chapman in person and told her that Howard appeared very sick and in serious need of medical care. Chapman refused to see Howard. Kennedy was sufficiently concerned over Howard's condition that he notified his supervisor, Lt. Wanda Clemmons, about Howard and Chapman's refusal to see Howard. Clemmons merely told him to prepare a written report of the incident. This was another policy or procedure of the jail regarding medical care.

On May 23, 1992, at 8:00 a.m., Howard manifested symptoms of profound weight loss, total absence of appetite, slurred speech, lethargy, fainting, blurred vision, and profound weakness. He had to be carried to the clinic. Howard had a heart rate of 148 beats per minute. Although the protocol required that 911 be called when a prisoner's heart rate exceeded 120 bpm, LPN Lawrence Thompson did not call 911 or Dr. Chase, but gave Howard medication for high blood pressure that had been preapproved for such general use. However, such medication was dangerous for a diabetic. Howard was kept in the clinic from 11:00 a.m. until 7:00 p.m., when he was returned to his cell. Howard was never seen by a physician. At 11:00 p.m., Howard was returned to the clinic. He told LPN Ava McLeod that he was dying. At that time, he had an unsteady gait, blurry vision, faintness, a heart rate of 126 bpm, and a rebounding pulse of 136 beats per minute. The LPN did not call an ambulance or Dr. Chase, but continued to treat him only for high blood pressure by changing the blood pressure medication.

After Howard's return to the clinic at 11:00 p.m. on May 23, 1992, Deputy Gary Nicholson observed Howard in the holding cell and observed that Howard appeared "rough," in distress, lethargic, incoherent, and thirsty. Howard had an overwhelming odor of sweet ammonia about him. LPN McLeod told Nicholson that she thought that Howard was a diabetic. While LPNs had the authority to call 911 for an ambulance, the policy was that, because of cost, an ambulance was not to be called except in the case of a medical emergency. LPN McLeod consulted by telephone with Dr. Chase, who was on call. Dr. Chase neither came to the clinic to examine Howard nor ordered that Howard be sent to the emergency room at the hospital. By telephone, Dr. Chase ordered a change in blood pressure medication without knowing Howard's clinical signs and symptoms.

After 6:30 a.m. Sunday, May 24, 1992, Howard was returned to his cell by LPN Thompson. Howard told his cellmate Melson that he was dying. The cellmates created a commotion to get the deputies to do something about Howard, because Howard appeared to them to be critically ill. At 7:00 a.m., LPN Thompson arrived with a deputy at the cell, and Howard was again carried to the clinic. At 1:40 p.m., Howard's father and sister came to the jail, and Howard was taken to the visitors area, but Howard could not talk and fainted. Howard was then returned to the clinic. At 1:55 p.m., Howard's heart rate increased to 144 bpm, and his blood pressure dropped. A jailor became sufficiently concerned that he called 911; LPN McLeod called Dr. Chase to tell him that the deputy had called for the paramedics. Dr. Chase did not come to the jail.

At 2:10 p.m. on May 24, 1992, as a result of the telephone call from the jailor, two paramedics, Jim Waites and William Moore, arrived. They immediately detected acetone on Howard's breath. Howard was in a near coma and in a wheelchair. He was lethargic and could not keep his eyes open; he was non-responsive to voice commands and responded only to pain; and he lacked a grasp. The paramedics administered a simple glucose fingerstick test, which registered the maximum for glucose. Based on this simple test, it was their immediate opinion that Howard was diabetic. At the hospital, Howard registered 1200+ on the blood workup.

At 1:00 a.m. on May 25, 1992, after removal from the jail to the Medical Center, Howard stopped breathing. He died at 1:20 a.m. Held:

Case No. A99A0680

The plaintiffs set forth six enumerations of error, all of which state different reasons why the trial court erred in granting summary judgment to the defendants. For a proper analysis, the theories of liability must be examined on the basis of federal and state claims.

1. The plaintiffs contend that the trial court erred in granting summary judgment on Howard's 42 USCA § 1983 claims for violating Howard's rights under: (a) the Eighth Amendment of the United States Constitution to be free from cruel and unusual punishment, i.e., grossly inadequate medical care and failure to treat Howard, and (b) the Due Process Clause. We agree.

(a) Liability on an action under 42 USCA § 1983 prohibiting cruel and unusual punishment as a violation of Eighth Amendment rights under the United States Constitution exists through "acts [and] omissions sufficiently harmful to evidence deliberate indifference to serious medical needs," of an inmate in jail. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner's interests or safety. It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official

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