LeMarbe v. Wisneski
| Decision Date | 08 June 2001 |
| Docket Number | No. 00-1383,00-1383 |
| Citation | 266 F.3d 429 |
| Parties | (6th Cir. 2001) Richard LeMarbe, Plaintiff-Appellee, v. Jerome J. Wisneski, Defendant-Appellant, Sharon Fairbanks; Dennis Straub, Defendants. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 98-74028, Denise Page Hood, District Judge. [Copyrighted Material Omitted] John M. Leh, SERMAN & LEH, Lake Orion, Michigan, for Appellee.
John L. Thurber, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS DIVISION, Lansing, Michigan, for Appellant.
Before: KEITH, BATCHELDER, and MOORE, Circuit Judges.
MOORE, J., delivered the opinion of the court, in which KEITH, J., joined. BATCHELDER, J. (pp. 441-42), delivered a separate dissenting opinion.
On June 30, 1998, Plaintiff-Appellee Richard LeMarbe ("LeMarbe"), a Michigan state prisoner, filed this lawsuit against Cotton Correctional Facility, Duane L. Waters Hospital, Sharon Fairbanks, Dennis Straub, Defendant-Appellant Dr. Jerome Wisneski ("Dr. Wisneski"), Dr. Allen Price, and a John Doe defendant, alleging that the defendants displayed deliberate indifference to his serious medical needs in violation of his rights under the Eighth Amendment. During the course of this lawsuit, all of the defendants, except for Dr. Wisneski, were dismissed from this action through either voluntary dismissal or summary judgment.1 On March 31, 2000, the district court accepted the magistrate judge's report and recommendation to deny Dr. Wisneski's motion for summary judgment based upon qualified immunity. Dr. Wisneski now appeals the district court's denial of his motion for summary judgment. For the reasons that follow, we AFFIRM the district court's decision.
LeMarbe is a state prisoner at the Cotton Correctional Facility in Ionia, Michigan. On July 11, 1996, LeMarbe sought medical treatment for severe abdominal pain at Duane L. Waters Hospital, which is operated and controlled by the State of Michigan at the Charles E. Egeler Facility in Jackson, Michigan. At the hospital, LeMarbe was treated by a general surgeon named Dr. Wisneski, who discovered during the course of the appointment that LeMarbe suffered from chronic gallstone problems, specifically cholecystitis, and scheduled LeMarbe for surgery to remove his gallbladder.
On July 22, 1996, Dr. Wisneski performed a cholecystectomy or gallbladder removal surgery on LeMarbe at the Duane L. Waters Hospital. On July 24 and 25, 1996, Dr. Wisneski met with LeMarbe for follow-ups to his surgery and noted that LeMarbe was recovering well.
On July 26, 1996, however, LeMarbe's recovery noticeably began to falter, and as a result, Dr. Edgar Eichum, another general surgeon at Duane L. Waters Hospital, ordered lab tests on LeMarbe. On July 29, 1996, Dr. Wisneski reviewed the results of LeMarbe's lab tests and met with LeMarbe. The results of these lab tests indicated that LeMarbe may have had "a bile leak somewhere, or a bile obstruction." Joint Appendix ("J.A.") at 34 (Wisneski Dep. at 16).
On July 30, 1996, Dr. Wisneski met with LeMarbe again and observed that LeMarbe "wasn't doing as well as [Dr. Wisneski] wanted [LeMarbe] to be doing." J.A. at 35 (Wisneski Dep. at 17). Later that day, Dr. Wisneski "put down a nastrogastric tube to empty [LeMarbe's] stomach," as LeMarbe was suffering from symptoms of nausea and abdominal distention. J.A. at 35 (Wisneski Dep. at 18). After unsuccessfully taking other steps to resolve LeMarbe's problems, Dr. Wisneski made a decision to perform exploratory surgery on LeMarbe.
On July 31, 1996, Dr. Wisneski began to conduct an exploratory laparotomy on LeMarbe. Upon entering LeMarbe's abdomen during the laparotomy, Dr. Wisneski encountered approximately five liters of a "muddy yellow-brown odorless fluid." J.A. at 36 (Wisneski Dep. at 21). According to Dr. Wisneski, the fluid "looked like ascitic fluid," but "from the color of it [he] thought it was [biliary fluid because] [i]t was lightly tinged yellow and there isn't anything in the abdomen that would give it that color other than bile." J.A. at 36 (Wisneski Dep. at 21-22). Dr. Wisneski then began to look for the source of the leak. Unable to discover the reasons for the fluid, Dr. Wisneski sought the assistance of Dr. Eichum. Dr. Eichum, however, was also unable to uncover the reason for the fluid. Thereafter, Dr. Wisneski drained the fluid from LeMarbe's abdomen and, although he was concerned about the fluid collecting again in LeMarbe's abdomen, Dr. Wisneski closed LeMarbe's surgical incision and ended the exploratory surgery.
On August 1 and 2, 1996, Dr. Eichum saw LeMarbe again, and according to Dr. Wisneski, LeMarbe's abdomen was not distended at that time. A few days later, on August 5, 1996, Dr. Wisneski saw LeMarbe once more and discharged him the following day. On August 13, 1996, Dr. Wisneski saw LeMarbe again, as LeMarbe's abdomen had become quite distended for a second time. Dr. Wisneski finally referred LeMarbe to a gastroenterologist, Dr. Marlo Hurtado, who saw LeMarbe on August 14, 1996. Thereafter, Dr. Wisneski did not see LeMarbe again.
Dr. Hurtado sent LeMarbe to Foote Hospital on August 16, 1996. On August 20, 1996, Dr. Blaine Tacia performed another exploratory surgery with an intraoperative cholangiogram on LeMarbe. In so doing, Dr. Tacia discovered that LeMarbe's abdomen was distended due to fourteen liters (3 gallons) of bile in the peritoneal cavity in his abdomen. Dr. Tacia commented that the adhesions inside LeMarbe's belly cavity were among the worst he had ever seen and that the accumulation of bile in LeMarbe's abdomen had caused serious damage to LeMarbe's biliary tract. Dr. Tacia discovered that the leak of fluid was due to a complete transaction of LeMarbe's common bile duct2 and found a clip on that duct, which Dr. Tacia explained was unusual.3 Dr. Tacia also stated that the transection occurred during one of Dr. Wisneski's surgeries. According to Dr. Tacia, the transection necessitated an immediate repair of the leak, as "there [was] no way for the bile to get down into the bowel." J.A. at 144 (Tacia Dep. at 24).
Because of the extensive damage in LeMarbe's abdomen, Dr. Tacia then performed a Roux-en-Y choledochojejunostomy on LeMarbe. Despite this surgery, however, LeMarbe still had to undergo several more surgeries at Foote Hospital and at the Detroit Receiving Hospital. In fact, LeMarbe was in and out of hospitals for the two years following his surgery with Dr. Tacia.
As a result of his medical treatment at Duane L. Waters Hospital, LeMarbe filed this lawsuit, alleging a violation of his constitutional right to have his serious medical needs attended to without deliberate indifference. On March 31, 2000, the district court issued an opinion and order accepting the report and recommendation of the magistrate judge to deny Dr. Wisneski's motion for summary judgment, holding that LeMarbe "ha[d] presented sufficient facts to rebut Defendant Wisneski's claim that he was not deliberately indifferent to [LeMarbe's] serious medical needs." J.A. at 183. In so doing, the district court relied heavily on the affidavit of Dr. James Sarnelle, a general surgeon who asserted that LeMarbe's bile leak had to be stopped immediately after its discovery. Dr. Sarnelle explained that any general surgeon would have known, upon discovering five liters of bile in LeMarbe's abdomen on July 31, 1996, that the bile in the abdomen came from a leak, that the bile leak would cause serious, permanent damage to LeMarbe if not stopped, that bile would continue to leak into LeMarbe's abdomen if the bile leak was not stopped, that the bile leak needed to be stopped before LeMarbe's exploratory surgery ended, and that LeMarbe had to be referred immediately to a specialist who could locate and stop the leak if the surgeon was unable to do so himself. J.A. at 104 (Sarnelle Aff.). Dr. Sarnelle also stated that "[t]he risk of harm to Richard LeMarbe on 7/31/96 was extreme and obvious to anyone with a medical education and to most lay people." J.A. at 104 (Sarnelle Aff.).
Dr. Wisneski argues that he is entitled to qualified immunity because he merely exercised his medical judgment in deciding how to treat LeMarbe, and a dispute over the specific method of treatment does not rise to the level of deliberate indifference. "Qualified immunity is 'an entitlement not to stand trial or face the other burdens of litigation.'" Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). A government official performing a discretionary function is entitled to qualified immunity from a suit for civil damages unless his actions have violated a clearly established statutory or constitutional right. Sanderfer v. Nichols, 62 F.3d 151, 153 (6th Cir. 1995) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, a plaintiff must prove two factors to show that a government official is not entitled to qualified immunity from his suit: (1) that the facts as alleged by him show a violation of a constitutional right; and (2) that such violated right was clearly established. Saucier, 121 S. Ct. at 2155.
Before we address the merits of Dr. Wisneski's arguments, however, we must first address the question whether we have jurisdiction over Dr. Wisneski's appeal. The Supreme Court has explained that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. §1291 under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). In Johnson v. Jones, 515 U.S. 304 (1995), the Supreme Court clarified that the Mitchell decision was explicitly limited to appeals challenging only the purely legal issues of whether the alleged...
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