Tanner v. McMurray

• Decision Date: 02 March 2021
• Docket Number: No. 19-2166,19-2166
• Citation: 989 F.3d 860
• Parties: Shawna TANNER, individually and as personal representative of Jay Hinton, Jr., Plaintiff - Appellant, v. Timothy I. MCMURRAY, M.D.; Adriana Luna, R.N.; Taileigh Sanchez, R.N., Defendants - Appellees. Correct Care Solutions, LLC; Board of County Commissioners of Bernalillo County, New Mexico; Ed Kossman; Elisa Manquero, R.N.; Thomas J. Ruiz ; Martina Sanchez-Filfred; Christopher Mercer ; Claudia Rodriguez-Nunez; Tina M. Munoz, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

989 F.3d 860

Shawna TANNER, individually and as personal representative of Jay Hinton, Jr., Plaintiff - Appellant,

v. Timothy I. MCMURRAY, M.D.; Adriana Luna, R.N.; Taileigh Sanchez, R.N., Defendants - Appellees.Correct Care Solutions, LLC; Board of County Commissioners of Bernalillo County, New Mexico; Ed Kossman; Elisa Manquero, R.N.; Thomas J. Ruiz ; Martina Sanchez-Filfred; Christopher Mercer ; Claudia Rodriguez-Nunez; Tina M. Munoz, Defendants.

No. 19-2166

United States Court of Appeals, Tenth Circuit.

FILED March 2, 2021

Jessica M. Hernandez (Paul J. Kennedy and Elizabeth A. Harrison with her on the briefs), Kennedy, Hernandez & Associates, P.C., Albuquerque, New Mexico, for Appellant.

Jacob Z. Goldstein (Eric P. Schoonveld with him on the brief), Hall Prangle & Schoonveld, LLC, Chicago, Illinois, for Appellees.

Before MORITZ, EBEL, Circuit Judges, and LUCERO, Senior Circuit Judge.

LUCERO, Senior Circuit Judge.

This appeal considers whether full-time employees of a for-profit, multi-state corporation organized to provide contract medical care in detention facilities may assert a qualified immunity defense to shield themselves from 42 U.S.C. § 1983 liability. Shawna Tanner, the plaintiff below, appeals an adverse ruling on summary judgment.

Tanner was approximately 35 weeks pregnant and in custody at the Metropolitan Detention Center in Bernalillo County, New Mexico when she went into the final stages of her pregnancy. Over the ensuing thirty hours, commencing with the point at which her water broke, Appellees—employees of a nationwide private medical contractor—ignored and minimized her symptoms, refused to transport her to a hospital, and failed to conduct even a cursory pelvic examination. Only minimal attention was given to her: water, Tylenol

, and sanitary pads. After thirty hours of pain and trauma, Tanner gave birth to her son. The child was born with his umbilical cord wrapped around his neck. He was not breathing. He had no pulse.

Tanner initiated an action under 42 U.S.C. § 1983 for the death of her child. On motion for summary judgment brought by the defendants, Timothy McMurray, MD, and Adriana Luna and Taileigh Sanchez, RNs, the district court granted the requested relief on the basis of qualified immunity. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

I

A

At the time the baby was stillborn, Appellees were full-time employees of Correct Care Solutions, LLC (CCS). CCS is a for-profit corporation that contracts with government entities to provide medical care in correctional facilities.¹ One hundred percent of CCS's business operations are government contracts. The overwhelming majority of these are contracts to provide medical care in correctional facilities. In 2016, CCS had contracts with approximately 200 jails in 38 states, exclusive of its contracts with state departments of correction.

In July 2014, Bernalillo County, New Mexico (the "County") issued a request for proposals (RFP) to provide medical care to detainees in the County's Metropolitan Detention Center (MDC). CCS submitted a responsive proposal and, following a competitive bidding process, was selected by the County. A four-year term contract was negotiated and signed. CCS and its employees were defined as independent contractors in the contract, which delegated the provision of all medical services for MDC residents to CCS. Other than mandating that CCS and its employees adhere to local and national policies governing medical care in correctional facilities, the contract limited the County's oversight to the appointment of a "contract monitor" responsible for working "collaboratively" with CCS to "ensure that services delivered meet or exceed" expectations.

Appellant asserts that CCS routinely violated the terms of its contract without consequence. It is alleged that CCS consistently failed to maintain proper levels of staffing under the contract, and that even after the contract was amended to allow it to reduce the staffing levels originally required in the RFP, CCS continued to fail to meet staffing requirements. CCS agreed in a June 1, 2015 contract amendment to provide bi-weekly, onsite OB/GYN clinics at the MDC, but as of October 2016, had failed to provide a single OB/GYN clinic.

Appellee McMurray, the Medical Director at the MDC site, was the "ultimate decision maker" for clinical issues. He was responsible for all decisions related to the care of patients at the MDC. The County was not required to be involved. McMurray had the ultimate authority to refer incarcerated individuals for offsite treatment.

Other CCS employees, including Appellees Luna and Sanchez, were given the authority to refer a patient for offsite emergency care.

B

Shawna Tanner was arrested and booked into the MDC facility on October 4, 2016.² During intake screening, she informed staff that she was pregnant. Twelve days later, during the morning of October 16, Tanner's water broke. She first felt wetness and a small amount of mucous discharge, then a large amount of clear fluid "began gushing" from her body. She also felt discomfort and cramping. At roughly 7:36 a.m., Tanner informed an MDC staff officer of those events and asked to be seen by medical personnel. Appellee Luna, a CCS nurse, reported that she was "busy" and did not attend to Tanner's pleas for approximately an hour and a half. At approximately 9:00 a.m., Luna examined Tanner for five minutes. Tanner reported that she could feel the baby moving at this time. During the examination, Luna did not test the discharge for the presence of amniotic fluid, did not otherwise examine Tanner, and did not call McMurray. Instead, after the brief examination, Luna sent Tanner back to her cell with sanitary pads

and instructions to drink water. Tanner slowly made her way back to her cell, paused multiple times to lean against walls, and complained of significant pain and "pressure down there."

Approximately one hour later, Officer Rebecca Macias called a "code 43" medical emergency. At that point, Tanner was in continued pain, bleeding, experiencing contractions, and felt like her baby was "crowning." Macias had attempted to call the medical office before "calling the code 43," but reported that no one answered, which Macias characterized as "typical." Ultimately, Luna and an EMT responded to Tanner's cell. Luna observed multiple blood clots

in the toilet and a blood-soaked sanitary napkin on top of the trash. Luna dismissed Tanner's concerns, stating, "it is normal to bleed during pregnancy when you're a drug addict," and "we can't help you if you keep lying." Tanner pleaded with Luna to perform a vaginal examination, but Luna refused, declaring "we don't do that." She chose not to call for medical assistance in performing such an evaluation.

When Luna asked Tanner if Tanner could walk to the medical unit, Tanner replied that she was in so much pain that she was unable to do so. Tanner was able to walk to the medical cart at the end of the hallway, but she doubled over in pain and grabbed onto her abdomen on the way. She was escorted by Officer Macias, who reported that Tanner left "a trail along the floor of the hallway" from the fluid discharge that had soaked through Tanner's pants.

Luna's second examination of Tanner lasted six minutes, one minute longer than the first. Luna did not perform a pelvic examination, but she did take Tanner's vital signs and listened to the fetus’ heart rate. She performed a Nitrazine test to check for the presence of amniotic fluid, but incorrectly tested a used sanitary pad

instead of testing fluid directly from Tanner. Luna then called McMurray to inform him of Tanner's condition. McMurray advised that he would see Tanner the next day. During this examination, Tanner asked to be sent to a hospital. Luna refused and instead transferred Tanner to the "Sheltered Housing Unit" (SHU), a single occupancy cell near the infirmary. Luna did not check on Tanner again for seven hours until near the end of her shift, at which time Tanner was anxious, experiencing continuing discharge, crying, and in pain.

Appellee Sanchez, another CCS nurse, took over for Luna shortly before 6:00 p.m., and Luna informed Sanchez of Tanner's condition at that time. Sanchez saw Tanner twice over the course of her shift. Tanner asked Sanchez to conduct a pelvic exam

, but Sanchez refused because it was not "within [her] scope of practice [at the jail]." Sanchez did not call a provider who would be able to perform a pelvic exam. Tanner spent the night alone in the SHU.

McMurray arrived at the jail the next morning and saw Tanner in the SHU. Tanner informed McMurray that she was in pain, that she was experiencing contractions, and that she feared the cause was her child; she asked McMurray to examine her. McMurray refused and said he would see her along with the other pregnant women the next day. In the interim, he cleared Tanner to leave the SHU and return to her housing pod.

After returning to her housing pod, Tanner continued to experience contractions and "excruciating pain." She noticed a large blood clot

had passed, and her pants were soaked in blood. She could not feel the baby moving. Tanner was then taken, yet again, to the medical unit. Two nurses attempted to detect the child's heartbeat, but both failed. One of the nurses told McMurray, who was sitting in his office, that Tanner was saturating sanitary pads with blood and that two nurses could not find the baby's heartbeat. Only then, approximately thirty hours into labor, did McMurray authorize a call for an ambulance.

When paramedics arrived, they found Tanner in clear pain, laying on a table in the medical unit, appearing to be in labor. Tanner was "obviously having contractions." Several medical personnel were around Tanner when the paramedics arrived. McMurray was standing alone in the back of the room. When it was suggested that it was McMurray's responsibility to deliver the baby, the doctor shook his head in the negative, threw up...