Russell v. Lumitap
| Decision Date | 13 April 2022 |
| Docket Number | 18-55831 |
| Citation | 31 F.4th 729 |
| Parties | Patrick RUSSELL, individually, and as Personal Representative of the Estate of Patrick John Russell; Lynne Russell, individually, and as Personal Representative of the Estate of Patrick John Russell, Plaintiffs-Appellees, v. Jocelyn LUMITAP, individually; Patti Trout, individually; Maria Teofilo, individually; Thomas Le, individually, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
S. Frank Harrell (argued), Lynberg & Watkins APC, Orange, California, for Defendants-Appellants.
Dale K. Galipo (argued) and Marcel F. Sincich, Law Offices of Dale K. Galipo, Woodland Hills, California; Cameron Sehat, The Sehat Law Firm PLC, Irvine, California; for Plaintiffs-Appellees.
Before: Andrew J. Kleinfeld, Consuelo M. Callahan, and Ryan D. Nelson, Circuit Judges.
I. Factual Background
On January 8, 2016, Patrick John Russell was arrested for a probation violation and booked at the Orange County Jail.1 During an initial medical screening, he indicated that he did not have any of the listed chronic conditions or any other medical conditions that he wished to disclose.
At around 10:35 p.m. on January 23, 2016, Russell was seen by Nurse Maria Teofilo. He was hyperventilating, vomiting, and dry heaving. He told her that he could not breathe and that he was having an anxiety attack. Nurse Teofilo gave him Pepto Bismol (or its generic equivalent, bismuth subsalicylate ), but did not notify the doctor on duty or summon paramedics.
Later that night, at 12:03 a.m. on January 24, 2016, Russell returned to Nurse Teofilo, now complaining of chest pain. Russell told her that he believed the pain was muscular because he had done thirty push-ups the day before. But he also told her that he was nervous, anxious, and unable to calm down. He was in distress and unable to express his needs clearly. Nurse Teofilo advised him on stretching and referred him to the Intake Release Center for a mental-health screening.
At around 1:08 a.m., Russell arrived by bus at the Intake Release Center and was seen there by Nurse Patti Trout. He complained to her of continued chest pain, pointing to the center of his chest and lower portion of his throat, and told her that the pain was now radiating to his arm and jaw. He was short of breath and his hands and feet were numb. He also told her that he had vomited on the bus on the way there. In response, Nurse Trout gave him a dose of nitroglycerin.
Despite the nitroglycerin, Russell's severe chest pain persisted—five minutes after the dose, Russell told Nurse Trout that the severity of his chest pain was now between 8 and 9 out of 10. He was anxiously wringing his hands and breathing rapidly, and he vomited again. Nurse Trout consulted with the on-call physician, Dr. Thomas Le, over the phone, relaying Russell's symptoms and informing him that a dose of nitroglycerin had been ineffective.2 According to Orange County Correctional Health Services' Standardized Procedures for Registered Nurses that were in place at the time, the appropriate treatment for acute angina pectoris—defined as pressure in the chest or precordial discomfort—is to begin administering nitroglycerin and to then call for paramedics if symptoms "do not subside after the first dose." This is also the first step in the Standardized Procedures for treating cardiac arrest.
Nevertheless, although Nurse Trout had considered calling paramedics, Dr. Le ordered that Russell be administered Motrin (i.e. , ibuprofen, a nonsteroidal anti-inflammatory drug) and be referred for a mental health evaluation. Though Dr. Le was only a fifteen-minute drive away, he never physically examined Russell at any time.
At around 1:30 a.m., pursuant to Dr. Le's orders, Russell received a mental-health screening from a non-party nurse. He told the nurse that he was anxious about his potential prison sentence, that he had never had prior mental health problems, and that he had a history of daily THC use and alcohol abuse. The nurse instructed him on breathing and relaxation exercises and told him how to contact mental health for further assistance if necessary.
At around 2:04 a.m., Russell returned to the medical ward complaining to Nurse Teofilo of "flu-like" symptoms. She instructed Russell on how to communicate his symptoms to medical staff and told him to return if necessary.
Around 5:32 a.m., Russell returned to the medical ward complaining of severe chest pain. The severity of his pain was now a 10 out of 10, and he was hyperventilating. The First Amended Complaint states that at this point he was tachycardic (had a rapid heartbeat). Russell told Nurse Teofilo that he had been administered a dose of nitroglycerin but it had not alleviated his pain. Nurse Teofilo knew that, "per policy," a patient who has not responded to a dose of nitroglycerin must be hospitalized. She therefore called Nurse Trout to ask why Russell had not been hospitalized in accordance with the Standardized Procedures. Nurse Trout told her that Dr. Le had simply recommended Motrin and a mental health screening. Nurse Teofilo considered whether she should hospitalize Russell, but ultimately decided not to send for paramedics after speaking with Nurse Trout. Nurse Teofilo administered a dose of Motrin and Russell remained in the dispensary for observation.
Around 7:00 a.m., Russell complained of continued chest pain to Nurse Jocelyn Lumitap. He was now displaying signs of physical distress. He was sitting hunched over with his head down and supporting his chest with his hand. He was worried about his pain and wanted to see the doctor. Instead, Lumitap instructed Russell on relaxation techniques, gave him an analgesic heat balm for his chest pain, and told him he would be checked again after lunch.
At 10:43 a.m., Nurse Lumitap consulted with a non-party nurse. This non-party nurse advised her to keep on the same course of treatment with Russell.3 She reassured Nurse Lumitap that Russell would be okay. Nurse Lumitap speculated that the basis for this reassurance was Russell's vital signs and the fact that Dr. Le had already given his recommendation over six hours earlier.
Around 11:08 a.m., Russell returned to the medical ward complaining to Nurse Lumitap of deep throbbing pain in the middle of his chest and throat, with his pain still at a 10 out of 10. He denied having a heart condition, but said he had been told he had high blood pressure. He had "flu-like" symptoms, was hyperventilating, and bent over when he walked. Russell vomited in front of Nurse Lumitap, and stated that he felt a bit better but that his chest was still in pain. He sat on the floor for a few minutes next to a trash bin and then managed to sit on the chair. He remained in the ward resting on a patient table. After a brief rest, Russell sat up around 11:40 a.m. to vomit. He lay down on the floor at first, but then was able to get back up onto the table.
Finally, at around 12:20 p.m., Nurse Lumitap saw Russell breathing hard and sitting in an unresponsive state. Russell was suffering from "agonal"4 breathing, his eyes were crossed, his skin was pale, he was drooling and sweating profusely, and he was tachycardic. At this point, Nurse Lumitap called paramedics and helped begin CPR, administer oxygen, and initiate the Automated External Defibrillator. Paramedics arrived around 12:28 p.m. and Russell was transferred to a hospital where he soon died. An autopsy revealed that he died of hemothorax and hemopericardium, which means that there was a collection of blood between his chest wall and his lungs, as well as in the membrane surrounding his heart. According to the autopsy, these injuries were caused by an aortic dissection, i.e. , a rupture in a part of Russel's aorta, the artery that carries blood from the heart to the rest of the body.
Russell's parents sued Dr. Le, Nurse Teofilo, Nurse Trout, and Nurse Lumitap ("the Medical Team") on behalf of Russell's estate and individually for (among other things) violating his constitutional rights under § 1983 on a theory of deliberate indifference to his serious medical needs. The district court below denied the Medical Team's motion for summary judgment on qualified immunity and the Medical Team filed this interlocutory appeal on that issue.
Obviously, on this record as read most favorably to him, Russell received poor medical care. Dr. Le should have driven over to see him. The nurses should have made repeated phone calls to Dr. Le as Russell's symptoms worsened. Russell should have been sent to the hospital. Had all this been done, on this record, he might have lived. But this is not a medical malpractice case. In a § 1983 case, we must determine whether the level of medical care was unconstitutional, not whether it was so substandard that it may have cost Russell his life.
II. The scope of our review
We have jurisdiction to review the denial of qualified immunity at the summary judgment stage under 21 U.S.C. § 1291,5 and we do so de novo.6 However, the scope of review over such an interlocutory appeal is "circumscribed" because the Court may not "consider eviden[tiary] sufficiency, i.e., which facts a party may, or may not, be able to prove at trial."7 Therefore, the relevant question is "whether the defendant[s] would be entitled to qualified immunity as a matter of law, assuming all factual disputes are resolved, and all reasonable inferences are drawn, in plaintiff's favor."8
Russell argues that this Court lacks jurisdiction over the Medical Team's appeal because the district court's denial of summary judgment was based on a determination that the evidence had "two susceptible interpretations, thus it is for a jury to decide whether Appellants acted with deliberate indifference." But in the context of this interlocutory appeal, the Supreme Court has distinguished between "an appealed...
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