Pfaller v. Amonette

• Decision Date: 15 December 2022
• Docket Number: 21-1555, No. 21-1612
• Citation: 55 F.4th 436
• Parties: Jacob PFALLER, Administrator of the Estate of Danny Harold Pfaller, Plaintiff - Appellee, v. Dr. Mark AMONETTE, in his individual capacity, Defendant - Appellant, and Dr. Laurence Shu-Chung Wang, in his individual capacity, Defendant. Rights Behind Bars, Amicus Supporting Appellee. Jacob Pfaller, Administrator of the Estate of Danny Harold Pfaller, Plaintiff - Appellee, v. Dr. Laurence Shu-Chung Wang, in his individual capacity, Defendant - Appellant, and Dr. Mark Amonette, in his individual capacity, Defendant. Rights Behind Bars, Amicus Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

55 F.4th 436

Jacob PFALLER, Administrator of the Estate of Danny Harold Pfaller, Plaintiff - Appellee,

v.Dr. Mark AMONETTE, in his individual capacity, Defendant - Appellant,andDr. Laurence Shu-Chung Wang, in his individual capacity, Defendant.

Rights Behind Bars, Amicus Supporting Appellee.

Jacob Pfaller, Administrator of the Estate of Danny Harold Pfaller, Plaintiff - Appellee,

v.Dr. Laurence Shu-Chung Wang, in his individual capacity, Defendant - Appellant,andDr. Mark Amonette, in his individual capacity, Defendant.

Rights Behind Bars, Amicus Supporting Appellee.

No. 21-1555

No. 21-1612

United States Court of Appeals, Fourth Circuit.

Argued: September 16, 2022

Decided: December 15, 2022

ARGUED: Andrew Nathan Ferguson, Erika L. Maley, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. John Michael Shoreman, MCFADDEN & SHOREMAN, Washington, D.C., for Appellee. ON BRIEF: Mark R. Herring, Attorney General, K. Scott Miles, Deputy Attorney General, Laura Maughan, Assistant Attorney General, Michelle S. Kallen, Acting Solicitor General, Brittany M. Jones, Deputy Solicitor General, Laura H. Cahill, Assistant Attorney General, Rohiniyurie Tashima, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellant Dr. Amonette. Erin B. Ashwell, Chief Deputy Attorney General, A. Anne Lloyd, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; Lynne Jones Blain, M. Scott Fisher, Jr., HARMAN CLAYTOR CORRIGAN WELLMAN, Glen Allen, Virginia, for Appellant Dr. Wang. Mario B. Williams, Dallas S. LePierre, HDR LLC, Atlanta, Georgia, for Appellee. Oren Nimmi, RIGHTS BEHIND BARS, Washington, D.C., for Amicus Rights Behind Bars.

Before WILKINSON, WYNN, and DIAZ, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Diaz joined. Judge Wilkinson wrote a separate opinion concurring in part and dissenting in part.

WYNN, Circuit Judge:

Danny Pfaller died from liver cancer while he was a prisoner with the Virginia Department of Corrections ("Department"). His estate sued several prison officials under 42 U.S.C. § 1983 and Virginia law, alleging that they violated the Eighth Amendment and state law by failing to provide Pfaller treatment for his chronic hepatitis C until it was too late.

Defendants in this appeal are Dr. Mark Amonette and Dr. Laurence Shu-Chung Wang. Plaintiff alleges that Dr. Amonette designed treatment guidelines for inmates with hepatitis C that unconstitutionally excluded Pfaller from receiving treatment. Plaintiff also alleges that Dr. Wang failed to follow those guidelines and committed both medical malpractice and Eighth Amendment violations in denying him appropriate treatment. Defendants unsuccessfully moved for summary judgment, alleging that they were protected by qualified immunity and, on Dr. Wang's part, derivative sovereign immunity.

For the reasons that follow, we reverse the district court's denial of sovereign immunity to Dr. Wang and denial of qualified immunity to Dr. Amonette but affirm its denial of qualified immunity to Dr. Wang.

I.

Because this case is before us on interlocutory appeal, the following facts are recounted as the district court viewed them, and in the light most favorable to Pfaller. See Hicks v. Ferreyra , 965 F.3d 302, 305 (4th Cir. 2020).

A.

Hepatitis C is a disease caused by a viral infection of the liver. In certain individuals, hepatitis C can persist as an asymptomatic infection for years. In others, the virus can lead to liver inflammation, fibrosis (liver scarring ), cirrhosis (liver tissue death), and even terminal liver cancer.

For many years, the only curative treatment for hepatitis C was a course of interferon-based drugs. However, these drugs offered a low cure rate (40 to 50%) and caused major side effects, including life-threatening neuropsychiatric and autoimmune disorders. In 2014, the Food and Drug Administration began approving a suite of new drugs called direct-acting antivirals for treatment of hepatitis C patients. These drugs offered great promise. Not only were they less likely to cause serious side effects, but they also boasted cure rates of 90 to 100%. By 2015, direct-acting antivirals were available for treating hepatitis C patients.

In response to these medical advances, Dr. Amonette, the Department's chief physician, developed new hepatitis C treatment guidelines ("Guidelines") for the Department. Under the Guidelines, the Department agreed to refer inmates with hepatitis C to a clinic at Virginia Commonwealth University ("VCU") based on certain criteria. These criteria sorted inmates into three groups based on APRI and FIB-4 scores that assessed their level of fibrosis (if any).¹ Inmates who scored at the high end of the scale were to be "automatically referred to VCU for evaluation without any additional testing." J.A. 116. Inmates who scored in the middle tier were to receive "additional testing to determine whether [they] should be referred for evaluation." Id. And those who scored at the low end were not to be referred for treatment and instead were to "receive periodic laboratory blood testing and chronic care appointments with a medical provider." Id. Outside of these criteria, a physician could also refer an inmate to the VCU clinic "if there [were] other findings suggestive of advanced liver disease." J.A. 303. Once referred, the inmate would receive an antiviral prescription unless there was some other medical reason not to treat them.

Dr. Amonette explains that these Guidelines were designed to ensure that those with the greatest need were treated first. Plaintiff's expert disputes this, stating that the Guidelines were actually a tool for excluding patients from treatment. The parties agree that when resources are limited, prioritization of patients with the most advanced disease can be a reasonable strategy. But whether the Department's resources were actually limited is disputed.

B.

Danny Pfaller was an inmate with the Department from 1999 to 2018. As early as 2007, Pfaller tested positive for hepatitis C. Beginning in 2015, Pfaller had his blood drawn every six to twelve months to assess his APRI and FIB-4 scores, consistent with the Guidelines. During this time, Dr. Wang served as Pfaller's primary physician.

Between 2015 and 2018, Dr. Wang twice failed to follow the Guidelines in treating Pfaller. On October 16, 2015, Pfaller tested into the middle tier of the Guidelines criteria and therefore qualified for fibroscan testing to determine the extent of any fibrosis. But Dr. Wang did not refer him. Two years later, following several tests that fell into the lowest tier, Pfaller tested into the middle tier again. But once again, Dr. Wang did not refer him for more testing. Dr. Wang claims both failures were a mistake. He states that he did not refer Pfaller for a fibroscan because he thought the inclusion number for the middle tier was 1.5 on the FIB-4 test, when it was in fact 1.45.

On May 7, 2018, Pfaller tested for a third time into the middle criteria, and this time, Dr. Wang acted. He submitted a request for a fibroscan on May 14. Meanwhile, Dr. Wang began to see Pfaller for numerous physical examinations showing increasingly severe signs of liver disease. In early June, Pfaller visited Dr. Wang for abdominal pain and swelling, and Dr. Wang ordered hepatitis C genotype testing and prescribed medication to alleviate the symptoms. Later that month, Pfaller visited Dr. Wang for weight gain and bowel obstruction. Dr. Wang found that Pfaller's abdomen was distended, and he was retaining fluid—symptoms of liver disease—so Dr. Wang prescribed diuretics. During this time, Dr. Wang knew Pfaller "was on the list to be scheduled for a Fibroscan at VCU," but took no further measures to ensure Pfaller was actually tested. J.A. 1958. In early July, Pfaller visited the clinic three more times, complaining of shortness of breath, a cough, and fluid retention.

On July 11, 2018, Pfaller visited Dr. Wang again for fullness in his abdomen. Dr. Wang examined him and concluded his hepatitis C was causing fluid retention and cirrhosis. Two months after he originally put in a referral, he now ordered a fibroscan "asap," which was performed six days later. J.A. 1959. A follow-up CT scan revealed a mass on Pfaller's liver. After further testing, Dr. Wang referred Pfaller to VCU's oncology department. Pfaller was diagnosed with untreatable liver cancer in early September. He died only a month later, on October 3, 2018.

C.

Plaintiff Jacob Pfaller, who is Pfaller's son and the administrator of Pfaller's estate, filed suit on behalf of the estate in October 2019. Three claims are relevant to this appeal. To start, Plaintiff filed Eighth Amendment claims against Dr. Wang and Dr. Amonette in their individual capacities, alleging they were each deliberately indifferent to Pfaller's serious medical needs. Additionally, Plaintiff filed a state-law medical-malpractice claim against Dr. Wang in his individual capacity.

At the close of discovery, Dr. Wang and Dr. Amonette each moved for summary judgment. The district court rejected Defendants’ arguments in two separate decisions. First, the court found that Plaintiff had pointed to several genuine disputes of material fact as to whether Dr. Wang and Dr. Amonette were deliberately indifferent. See Pfaller v. Clarke , 630 B.R. 197, 207 (E.D. Va. 2021) (Dr. Amonette); Pfaller v. Clarke , No. 3:19CV728, 2021 WL 1776189, at *6 (E.D. Va. May 4, 2021) (Dr. Wang). The court also concluded that "Pfaller's Eighth Amendment right to receive adequate medical care and to be free from officials’ deliberate indifference to his known medical needs" was clearly established at the time in question, so Defendants were not entitled to qualified immunity. Pfaller , 630 B.R. at 215 ; Pfaller , 2021 WL 1776189, at *10. Finally, the court rejected Dr. Wang's sovereign-immunity defense to...