Minor v. Barwick

• Decision Date: 25 November 2003
• Docket Number: No. A03A1072.,A03A1072.
• Citation: 590 S.E.2d 754,264 Ga. App. 327
• Parties: MINOR et al. v. BARWICK et al.
• Court: Georgia Court of Appeals

590 S.E.2d 754

264 Ga. App. 327

MINOR et al. v. BARWICK et al.

No. A03A1072.

Court of Appeals of Georgia.

November 25, 2003.

Certiorari Denied March 29, 2004.

Thurbert E. Baker, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., Carlock, Copeland, Semler & Stair, Adam L. Appel, Hollberg & Weaver, George M. Weaver, Atlanta, for appellants.

Orr & Orr, Kristine E. Orr, Atlanta, E. Wycliffe Orr, Gainesville, Ray & McKinney, Robert M. Ray, Jr., Ralph S. Goldberg, Decatur, for appellees. MIKELL, Judge.

This case is before us on interlocutory review of the trial court's denial of appellants' motions for summary judgment.¹ Brent Barwick ("Barwick") committed suicide while detained in Phillips State Prison ("Phillips"). Justin Barwick, Barwick's brother and administrator of his estate, and Richard Hyer, administrator of the estate of Sandra Barwick, Barwick's mother, filed this wrongful death action against Debbie Carter, officially and individually, Medical College of Georgia ("MCG"), Board of Regents of the University System of Georgia, Georgia Department of Corrections ("DOC"), and two of its employees, Lieutenant Stuart Minor ("Minor") and Captain Isaiah Bailey ("Bailey").² Plaintiffs filed suit pursuant to 42 USC § 1983, alleging that appellants acted with "deliberate indifference" in failing to provide medical care and treatment to Barwick, in violation of the Due Process Clause and the Eighth Amendment of the United States Constitution. Plaintiffs also alleged claims of medical malpractice, violation of OCGA § 42-5-2,³ breach of contract, and wrongful death and negligence. The parties filed cross-motions for summary judgment. The trial court denied plaintiffs' motion and granted and denied in part defendants' motion. The court denied Minor's motion for summary judgment on plaintiffs' wrongful death claim, finding that even though Minor was acting within the scope of his employment and performing discretionary acts when dealing with Barwick, a question of fact exists for the jury as to whether Minor acted with malice or intent to injure Barwick. The trial court also denied Minor's motion for summary judgment on plaintiffs' claim that Minor breached his duty under OCGA § 42-5-2. Finally, the trial court denied both Minor's and Carter's motions for summary judgment on plaintiffs' § 1983 claim, finding that a question of fact exists for the jury as to whether Minor and Carter acted with deliberate indifference. The trial court granted a certificate of immediate review of its rulings with respect to Minor and Carter. For reasons that follow, we reverse the trial court's decision as to Minor, but affirm the judgment as to Carter.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the] plaintiff's case.... Our review of an appeal from summary judgment is de novo.

(Citations omitted.) Vasquez v. Smith, 259 Ga.App. 79, 576 S.E.2d 59 (2003). See also Willett v. Russell M. Stookey, P.C., 256 Ga. App. 403, 410, 568 S.E.2d 520 (2002).

Viewed in this light, the evidence shows that Barwick arrived at Phillips, a DOC facility, on July 6, 1998, to serve time for a parole violation. On August 30, 1998, Barwick attempted suicide by cutting his foot on his cell toilet. Barwick was treated for the injury and housed at Phillips' Crisis Stabilization Unit until September 3, 1998. Medical staff subsequently released him to a mental health building where inmates are allowed to self-medicate with Tylenol. The medical staff at Phillips delivered the Tylenol to Barwick's building and security staff dispensed it. No log was kept documenting how many pills an inmate was given, and the inmates were not required to ingest the pills in the presence of prison personnel. There was, however, a policy limiting each inmate to two pills every four hours. Phillips had 24-hour, on-site medical care available through a contract with MCG.

According to Barwick's fellow inmates, he talked about suicide almost daily. Sometime in early September 1998, one inmate told Minor that Barwick was upset and that someone should talk to him. According to the inmate, Minor spoke with Barwick.

In late September 1998, Barwick, with the help of other inmates, collected approximately 110 Tylenol pills. Following up on rumors of hoarding, corrections officers searched inmate cells, including Barwick's, but found nothing. One inmate stated that Barwick had buried the pills outside in the yard. From September 27 through September 29, Barwick ate no food. On September 29, at approximately 10:00 a.m., Barwick ingested all 110 Tylenol pills.

Sometime that morning, Dr. John Purcell, a prison psychiatrist on his daily rounds, evaluated Barwick. The record does not indicate whether this evaluation took place before or after 10:00 a.m. Dr. Purcell concluded that Barwick did not exhibit signs of suicidal impulsiveness or of a Tylenol overdose. Dr. Purcell concluded that Barwick was doing well.

In the early afternoon of September 29, an inmate informed Stanley Kalin, a mental health counselor at Phillips and a DOC employee, that Barwick had overdosed on Tylenol. Kalin went to Barwick's cell and woke him up. Barwick appeared groggy and complained of a headache, which he attributed to standing up too fast. Kalin then took Barwick to his office, where Barwick vomited in the trash can. Barwick denied that he had taken an overdose of Tylenol. Kalin notified the medical department of Barwick's situation and Bob Jones, a nurse employed by MCG, came to Kalin's office to check on Barwick.

Jones assessed Barwick's condition and asked him if he had overdosed on Tylenol. Barwick denied the allegation, and Jones determined that no follow-up was needed.⁴ Although Kalin did not agree with Jones's conclusion and felt that a more thorough examination should be done, Kalin did not protest or object to Jones's determination. Kalin later told a range officer to keep an eye on Barwick.

In the late afternoon/early evening of September 29, Barwick's cellmate told Officer Taiwon Dowling about the overdose. Dowling went to Barwick's cell and asked him if he had taken 110 Tylenol pills. Barwick said yes. Dowling then called Sergeant Mabel Davenport and advised her of the situation.

At some point during this time, Barwick's mother called Phillips to find out what was being done to help her son. Davenport took the telephone call and then handed the phone to Minor. Minor told Mrs. Barwick to call back the next morning and that he had nothing to say to her.

Davenport then went to see Barwick. She averred that he was talking on the phone to his mother.⁵ Barwick's eyes were dilated. Barwick told Davenport that he had taken 110 Tylenol pills because he wanted to die. When Davenport asked Barwick where he got the pills, Barwick said that he and his friends had collected them. Davenport took Barwick to the counselor's office and Barwick vomited while in the office. Davenport called medical personnel and Jones answered. Jones told Davenport that Barwick already had been checked and that medical personnel would not come to see him again. After the call, Davenport observed Barwick walking awkwardly and sluggishly. She again called medical personnel and demanded that they check Barwick. Jones again refused, stating that Barwick had refused treatment.

Davenport then contacted Minor and relayed her conversations with Barwick and Jones. Minor came to the office and asked Barwick what he had done. Barwick replied that he had done nothing.⁶ Minor then told Barwick, "[l]isten, I don't give a fuck whether you live or die. There's more where you came from." Other security personnel heard Minor say that he did not care if Barwick died, or "well die, you little S.O.B." Minor denied making any such statements. Davenport then told Minor that it was important for medical personnel to examine Barwick. Minor called Bailey at home, and Bailey stated that medical personnel would examine Barwick.⁷ Bailey then called Jones and ordered that Barwick be seen.

Carter was sent to examine Barwick. He twice denied taking an overdose of Tylenol. Carter took Barwick's blood pressure and Davenport commented that it was low.⁸ There is some evidence that Carter responded that Barwick's blood pressure was not dangerously low, but she denied making any such statement.⁹ After further examination, Carter concluded that Barwick was fine. According to Davenport, she protested that Barwick needed to be hospitalized because he was lethargic, his eyes were dilated, and his blood pressure was low. Carter said she would not recommend that Barwick be transported out of Phillips. At this point, Minor said, "I'm done with it, I'm gone[,]" and left the room. Davenport asked Carter to take Barwick to the medical section for observation, but Carter refused. Carter denied that Davenport protested in any manner after she assessed Barwick.

Carter then called her supervising nurse, Angela Chandler. There is some evidence that Carter told Chandler of her assessment and recommended that Barwick not be transported out of the prison, but merely monitored. Carter denied that she made any recommendation regarding transport; rather, Carter relied on Chandler because she did not have the authority to order a transport. Chandler told Carter to tell security personnel to monitor Barwick. Carter relayed this message and told Davenport to put Barwick to bed. There is no evidence that Barwick requested medical treatment or to be transferred out of Phillips. Carter left, and Davenport...