Walters v. Frakes
| Decision Date | 05 January 2021 |
| Docket Number | No. A-19-532.,A-19-532. |
| Citation | 29 Neb.App. 315,953 N.W.2d 831 |
| Parties | Richard WALTERS, appellant, v. Scott FRAKES et al., appellees. |
| Court | Nebraska Court of Appeals |
F. Matthew Aerni, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith, Lincoln, for appellees.
Richard Walters, an inmate at the Nebraska Department of Correctional Services (DCS), sued Scott Frakes, the director of DCS; DCS; and John Does 1 through 99 (collectively referred to as "the Appellees"), for alleged negligent failure to respond to his medical complaints and condition which resulted in permanent injury to him. The district court ruled in favor of the Appellees, finding there was no breach of duty in connection with Walters’ claim. We affirm.
On July 8, 2015, Walters was an inmate at the Nebraska State Penitentiary when, at approximately 10:30 a.m., he complained to a staff member assigned to his floor regarding a medical problem that Walters was experiencing. At trial, Walters described his first attempt to report his condition as follows: In connection with his grievance, Walters acknowledged he pointed in the direction of his groin, but never specifically indicated that the medical issue he was experiencing had to do with an erection or his penis. Walters testified that the staff member told him he would contact medical personnel, but no medical personnel responded.
Walters testified he notified a different staff member about his medical issue nearly 8 hours later at about 7 p.m. During trial, the following colloquy occurred between Walters and his counsel regarding his second report:
?
A. No. I didn't know what that was.
Q. Didn't even know what that was until later on, right?
A. Way later.
Q. Yeah. When that second person was coming around and you're telling them about your problem, I understand you did not use those specific words we just talked about?
A. No.
Again, no one responded.
Walters then testified that, at approximately 10 p.m., he notified a third shift operator that he was experiencing groin pain and again pointed in the direction of his groin without further explanation. Walters explained he did not want to further elaborate on the specific nature of the condition because of his embarrassment and desire to remain discreet because of the presence of other inmates. Although the staff person indicated he would inform medical staff, no medical personnel immediately responded. Walters then testified he could not sleep because of the pain associated with the condition, and he did not have another opportunity to report his condition until the following day at 4 a.m.
On July 9, 2015, at 4 a.m., Walters reported that the staff person to whom he last reported his condition at 10 p.m. came around and Walters asked what happened in connection with his prior report. According to Walters, that staff person indicated that he called medical staff but that they had not yet responded because Walters’ condition was not a serious issue. In response, Walters stated he disagreed in that his condition had been ongoing since 8 a.m. the previous day with no relief. At that point, Walters stated that he might have indicated the condition had to do with an erection, but he was unsure. He then pressed the staff person as to why he waited so long to come back. In response, Walters stated the staff person indicated Walters would have to "wait till rounds." At 6:30 a.m., when the inmates came out for breakfast, Walters reported that a caseworker with whom he was familiar was working. Walters indicated that the caseworker asked him why he was walking funny and that Walters, who had greater familiarity with the caseworker, more explicitly described the nature of his medical issue which was that he had a constant, painful erection since the previous day. As a result of this report, and in connection with what Walters described as the normal rounds for a nurse to see inmates between 7 and 9 a.m., Walters was finally attended to by the nurse. Walters reported that after examining Walters, the nurse reacted immediately and arranged for Walters to be transported to see a doctor. Walters stated that while he was in the doctor's office, the attendants described his situation as an emergency, and he was taken to the hospital, was the recipient of emergency surgery, and eventually suffered through a painful recovery.
The district court noted in its order:
can cause permanent erectile dysfunction. If priapism is treated within a four to six-hour window after initial erection, there is a greater likelihood of a full recovery. Even if priapism is treated within a four to six-hour window, there is still a chance that permanent damage will be done. After that four to six-hour window, the chances for a full recovery decrease and a greater chance exists that permanent erectile dysfunction will result.
The court finds that ... Walters will likely experience permanent damages as a result of his priapism and treatment.
The first written evidence governing Walters’ report appears in a medical chart received into evidence as exhibit 7. That chart indicates that at 4:10 a.m. on July 9, 2015, the staff member to whom Walters reported his medical issue notified the night shift medical nurse about Walters’ report. That nurse indicated that Walters had reported "groin pain" and that, after conducting a medical chart review, "groin pain" did not constitute a medical emergency. The entry on the chart indicated the staff member was instructed to let the inmate know that the nurse would be around in the morning and that Walters could have his issue addressed at that time.
On cross-examination, Walters testified to his familiarity with sending written emergency grievances and agreed he did not initiate either based upon his prior experiences of response time in connection with such process. But Walters also identified a prior incident where he notified penitentiary staff that he had chest pains which resulted in an immediate medical response.
During his case in chief, Walters offered the videotaped deposition of Dr. Robert Rhodes, a board-certified family physician in Lincoln, Nebraska. During cross-examination, as it related to Walters’ report of symptoms, the following colloquy ensued:
On redirect, the issue was readdressed by Walters’ counsel as follows:
After reviewing this evidence, the district court ultimately held:
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Fugett v. Douglas Cnty.
...prevent judicial “second-guessing”). Likewise, Fugett's reliance on the Nebraska Court of Appeals case Walters v. Frakes is unavailing. 953 N.W.2d 831, 844-45 (Neb. Ct. App. 2021), opinion modified on denial of reh'g, 957 N.W.2d 203 (Neb. Ct. App. 2021). Fugett asserts that the Court in Wal......
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Walters v. Frakes
...This case is before us on a motion for rehearing filed by the appellee, State of Nebraska, concerning our opinion in Walters v. Frakes , ante p. 315, 953 N.W.2d 831 (2021). We over-rule the motion, but we modify the opinion as follows.In the analysis section of the opinion under the heading......