Standards for Prison Physician Liability - Hathaway
v. Coughlin, 99 F.3d 550 (2d Cir. 11/08/1996)
[Editor's note: footnotes (if any) trail the opinion]
[1] CORRECTED OPINION
[2] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[3] No. 465
[4] August Term, 1996
[5] Argued: October 8, 1996
[6] Decided: November 8, 1996
[7] Docket No. 95-2389
[8] WILLIAM HATHAWAY,
[9] Plaintiff-Appellant,
v.
[10] THOMAS A. COUGHLIN, Commissioner of the Department of Correctional
Services, E.W. JONES, Superintendent of Great Meadow Correctional Facility,
FOOTE, DR.,
[11] Defendants-Appellees.
[12] BEFORE:
[13] OAKES and ALTIMARI,*fn* Circuit Judges
[14] Appeal from a judgment of the United States District Court for the
Northern District of New York (Scullin, J.), after a jury verdict in favor
of the defendant-appellee, dismissing the plaintiff's-appellant's Section(s)
1983 action based upon claims of deliberate indifference to plaintiff's
medical condition.
[15] Affirmed in part, reversed in part, vacated, and remanded.
[16] ALTIMARI, Circuit Judge:
[17] Plaintiff-appellant William Hathaway ("Hathaway") appeals
from a judgment of the United States District Court for the Northern District
of New York (Scullin, J.) dismissing his Section(s) 1983 action alleging
deliberate indifference by prison officials to his medical condition,
upon a jury verdict rendered in favor of the defendant-appellee Dr. Joseph
Foote ("Dr. Foote"). On appeal, Hathaway contends: (1) that
the district court's instruction to the jury on deliberate indifference
was erroneous and confusing, and (2) that the district court erred in
excluding certain evidence pursuant to Fed. R. Evid. 403. We agree that
the jury instruction was erroneous, and reverse.
[18] Background
[19] This case comes before us for the third time on appeal. Familiarity
with our previous decisions, see Hathaway v. Coughlin, 841 F.2d 48 (2d
Cir. 1988) ("Hathaway I") and Hathaway v. Coughlin, 37 F.3d
63 (2d Cir. 1994) ("Hathaway II") is presumed, and we briefly
summarize the relevant facts.
[20] Hathaway commenced the present action in October of 1982 against
Thomas A. Coughlin ("Coughlin"), Commissioner of the New York
State Department of Correctional Services, E.W. Jones ("Jones"),
Superintendent of the correctional facility where the events underlying
this case occurred, and Dr. Foote, a doctor at the correctional facility.
According to the complaint, the defendants were deliberately indifferent
to Hathaway's medical condition, in that, among other things, they did
not tell Hathaway about two broken pins in his left hip until a year after
Dr. Foote had discovered that the pins were broken, and then took another
year to schedule Hathaway for surgery to repair the damage caused by the
broken pins. During these two years Hathaway alleged that he frequently
complained of severe pain in his hip to Dr. Foote and other prison officials.
[21] In Hathaway I, we reversed the district court's grant of summary
judgment in favor of the defendants, finding that Hathaway had come forward
with sufficient facts in support of his deliberate indifference claim
to withstand a motion for summary judgment. See id., 841 F.2d at 50. Upon
remand, the case proceeded to trial. At the close of the evidence, the
district court dismissed the complaint against the defendants Coughlin
and E.W. Jones, because they lacked the requisite personal involvement
in Hathaway's care. The district court reserved judgment as to dismissing
the claims against Dr. Foote. The jury deadlocked, and the court declared
a mistrial. Dr. Foote then moved for judgment as a matter of law and dismissal
of the claims against him pursuant to Fed. R. Civ. P. 50(b). That motion
was denied, and we affirmed the district court on appeal, see Hathaway
II, 37 F.3d at 68-69.
[22] Our affirmance in Hathaway II rested upon clear support in the record
of a finding that Hathaway had a serious medical need, based upon: (1)
the fact that between July 1980, when Dr. Foote first discovered the broken
pins while viewing an X-ray of Hathaway's hip, and October 1983, when
the broken pins were removed, Hathaway experienced great pain, had difficulty
walking, and complained of hip pain to prison officials, including Dr.
Foote, on almost seventy occasions, and (2) a rational jury could find
that the broken pins contributed to Hathaway's pain. See id. at 67. Our
affirmance also rested on the conclusion that a rational jury could find
on the evidence presented during the trial that Dr. Foote was deliberately
indifferent to Hathaway's serious medical needs, by knowing of and disregarding
an excessive risk to Hathaway's health. This evidence consisted of, among
other things: (1) the fact that Dr. Foote never informed Hathaway of the
broken pins or the possibility of surgery following the discovery, even
though the presence of broken pins in a hip would give most people pause
to consider surgery, (2) the course of treatment Dr. Foote prescribed
for Hathaway after discovering the broken pins -- taking anti-inflammatory
medication and wearing orthopedic shoes -- did not alleviate his suffering,
(3) two student attorneys wrote on behalf of Hathaway requesting further
evaluation and additional treatment of Hathaway's hip pain, and (4) Dr.
Foote did not refer Hathaway for surgery until after the present suit
was filed. See id. at 67-68.
[23] The case was retried against Dr. Foote. The jury rendered a verdict
in favor of Dr. Foote, finding that, although Hathaway met his burden
of proving that he had a serious medical need between 1980 and 1983, he
did not prove that Dr. Foote was deliberately indifferent towards that
need. Hathaway moved for a new trial, and his motion was denied.
[24] Hathaway now appeals, contending that the district court erred in
its "deliberate indifference" charge to the jury. Specifically,
Hathaway contends that the district court committed reversible error by
instructing the jury that if it found evidence of medical malpractice,
then it could not reach the issue of deliberate indifference. In addition
to challenging the jury instruction, Hathaway contends that the district
court erred in excluding under Fed. R. Evid. 403 certain expert testimony
and documentary evidence concerning Dr. Foote's alleged non-treatment
of Hathaway's syphilis.
[25] Discussion
[26] 1. Jury Charge
[27] The standard governing review of a district court's jury charge
is well-established. A jury charge is erroneous if it misleads the jury
as to the correct legal standard, or if it does not adequately inform
the jury of the law. See Schermerhorn v. Local 100, Transport Workers
Union, 91 F.3d 316, 322 (2d Cir. 1996). As an appellate court, this Court
need only "satisfy itself that [the] instructions, taken as a whole
and viewed in light of the evidence, show no tendency to confuse or mislead
the jury as to principles of law which are applicable." Norfleet
v. Isthmian Lines, Inc., 355 F.2d 359, 362 (2d Cir. 1966); accord Anderson
v. Branen, 17 F.3d 552, 556 (2d Cir. 1994). Thus, a jury instruction will
be deemed adequate if "the charge, taken as a whole, is correct and
sufficiently covers the case so that a jury can intelligently determine
the questions presented to it." Schermerhorn, 91 F.3d at 322 (internal
quotations and citations omitted).
[28] A. Deliberate Indifference
[29] As this Court explained in Hathaway II, the deliberate indifference
standard embodies both an objective and a subjective prong. Objectively,
the alleged deprivation must be "sufficiently serious," in the
sense that "a condition of urgency, one that may produce death, degeneration,
or extreme pain" exists. See id., 37 F.3d at 66 (citing Nance v.
Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J., dissenting)). Subjectively,
the charged official must act with a sufficiently culpable state of mind.
Id. According to the United States Supreme Court, the subjective element
of deliberate indifference "entails something more than mere negligence
. . . [but] something less than acts or omissions for the very purpose
of causing harm or with knowledge that harm will result." Farmer
v. Brennan, 114 S. Ct. 1970, 1978 (1994). The subjective element requires
a state of mind that is the equivalent of criminal recklessness; namely,
when the prison official "knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference." Id. at 1979; see
also Hathaway II, 37 F.3d at 66.
[30] With respect to medical malpractice and deliberate indifference,
the Supreme Court has further explained that mere allegations of negligent
malpractice do not state a claim of deliberate indifference:
[31] Thus, a complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.
In order to state a cognizable claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical
needs.
[32] Estelle v. Gamble, 429 U.S. 97, 106 & n.14 (1976); see also
Hathaway II, 37 F.3d at 68 ("mere medical malpractice does not constitute
an Eighth Amendment violation").
[33] However, while "mere medical malpractice" is not tantamount
to deliberate indifference, certain instances of medical malpractice may
rise to the level of deliberate indifference; namely, when the malpractice
involves culpable recklessness, i.e., an act or a failure to act by the
prison doctor that evinces "a conscious disregard of a substantial
risk of serious harm," Farmer, 114 S. Ct. at 1980. Accordingly, not
every instance of medical malpractice is, a priori, precluded from constituting
deliberate indifference.
[34] B. District Court's Charge
[35] In charging the jury on deliberate indifference, the district court
correctly explained that deliberate indifference involves unnecessary
and wanton infliction of pain, or other conduct that shocks the conscience.
It also correctly explained to the jury that the defendant need not expressly
intend to inflict the unnecessary pain, but, rather, can establish the
element by proving that the defendant acted recklessly. The court then
proceeded to explain what it meant by "recklessly:" Now, by
recklessly, I mean that the plaintiff must prove two things by a preponderance
of the evidence. First, Mr. Hathaway must prove that Dr. Foote knew of
a substantial risk of serious harm to Mr. Hathaway's health. Second, Mr.
Hathaway must prove that Dr. Foote consciously disregarded that risk.
The plaintiff need not show that Dr. Foote failed to act, believing that
harm would actually befall Mr. Hathaway. It is sufficient if plaintiff
demonstrates that Dr. Foote failed to act despite his knowledge of a substantial
risk of serious harm to Mr. Hathaway's health.
[36] Now, merely inadvertent failure to adequately diagnos[e] or treat
the plaintiff's medical condition might be sufficient to make the defendant
liable in a medical malpractice or negligence action. However, such an
inadvertent failure is not sufficiently reckless to establish a claim
under the Eighth Amendment. Thus, if you find that Dr. Foote's actions
reflect a simple lack of due care, negligence, or medical malpractice
with respect to the plaintiff, then you must find in favor of the defendant
and need not proceed any further in your deliberations.
[37] I should point out here and, you will recall, that there has been
expert testimony on this point as to the medical care. Now, while it may
be evidence of a deliberate indifference, that alone is not sufficient
if you were satisfied there is medical malpractice. Understand that?
[38] (emphasis added).
[39] The first and second paragraphs excerpted above were contained in
the court's written instructions to the jury. The third paragraph was
spoken extemporaneously by the court during its charge. The plaintiff
objected to the instruction, on the ground that the third paragraph was
an inaccurate statement of the law. Indeed, upon a readback of the instruction
the district court acknowledged that its statement about malpractice "isn't
as complete as it could have been," and that it "didn't want
to spend a lot of time on it." The district judge further acknowledged
that "I think I can be a little more thorough in explaining [the
instruction]." We agree with the plaintiff that the instruction is
erroneous.
[40] While the first paragraph excerpted above correctly states the law,
the last two paragraphs do not because they expressly state that a finding
of medical malpractice precludes a finding of deliberate indifference.
That is an inaccurate statement of the law; the instruction fails to distinguish
mere malpractice based on negligence from malpractice based on the kind
of culpable recklessness underlying liability for deliberate indifference.
As a result, the district court's instruction erroneously compels a juror
to conclude that any medical malpractice precludes a finding of deliberate
indifference. Moreover, apart from being inaccurate, the third paragraph
is very confusing because it states that even if there is evidence of
deliberate indifference, that evidence is insufficient if the jury finds
there is medical malpractice.
[41] We reiterate that in raising the issue of medical malpractice in
Estelle, the Supreme Court was not establishing a per se rule precluding
any malpractice from being actionable under the Eighth Amendment. Rather,
it raised the concept to explain that certain kinds of medical misconduct
-- specifically, the "inadvertent failure to provide adequate medical
care" and "negligen[ce] in diagnosing or treating a medical
condition," id., 429 U.S. at 105-06 -- did not rise to the level
of deliberate indifference. The Supreme Court's statement, however, cannot
be construed to mean that there are no instances of malpractice that can
rise to the level of deliberate indifference.
[42] A correct jury instruction in a case such as the present one requires
elaborating the concept of "malpractice," if it is raised at
all, because to the layperson the term can encompass a range of conduct
beyond mere negligence. Having interjected the term in its jury charge,
the district court was then obligated to clarify it by delineating the
kind of medical malpractice that is actionable under the Eighth Amendment
from the kind that is not. By not doing so, and then stating that even
if there is evidence of deliberate indifference, such evidence is insufficient
if the jury is satisfied there is medical malpractice, the district court's
charge misled the jury about the law and confused it. The charge is, therefore,
erroneous and constitutes reversible error.
[43] Moreover, the error is not harmless. The jury was instructed that
if they believed Dr. Foote committed malpractice, then they could not
find deliberate indifference even if there was evidence of it. That goes
to the very heart of the plaintiff's claim, and effectively precludes
a finding of liability where one may be warranted. See Hendricks v. Coughlin,
942 F.2d 109, 113-14 (2d Cir. 1991) (where jury instructions create an
erroneous impression regarding the standard of liability, it is not harmless
error because it goes directly to plaintiff's claim, and a new trial is
warranted).
[44] 2. Exclusion of Evidence
[45] The plaintiff contends that the district court erred in excluding
evidence concerning Dr. Foote's alleged non-treatment of Hathaway's syphilis.
The evidence consisted of a document showing that Hathaway had inactive
syphilis, and in testimony by Dr. Foote and other experts about the lack
of treatment for this condition. According to Hathaway, the evidence was
probative and relevant to his claim that Dr. Foote was deliberately indifferent
towards his medical condition. The district court excluded the evidence
pursuant to Fed. R. Evid. 403, on the grounds that it was prejudicial,
irrelevant, lacked probative value, and confusing.
[46] The district court's interpretation of the Federal Rules of Evidence
is given plenary review. However, if based upon a proper interpretation
of Rules, "[w]e will reverse the evidentiary rulings of a district
court only if they are manifestly erroneous. Absent such an abuse of discretion,
a trial court's rulings on evidence will be left undisturbed." Phoenix
Assocs. III v. Stone, 60 F.3d 95, 100 (2d Cir. 1995) (citing cases).
[47] Here, introducing the evidence concerning Dr. Foote's failure to
treat Hathaway's syphilis would have confused the jurors on the issue
of Dr. Foote's culpable state of mind with respect to the issue of his
deliberate indifference to Hathaway's hip pain. According to the court,
the evidence regarding the syphilis may have been indicative of negligence
and incompetence, but not of deliberate indifference to a serious medical
need because Dr. Foote did not perceive a serious risk to Hathaway's health
arising from the diagnosis of inactive syphilis. Thus, even though the
evidence may have been probative of Dr. Foote's neglect of Hathaway, the
jurors easily could have been confused by equating and interchanging the
evidence of negligence in one circumstance with evidence of deliberate
indifference in another. Accordingly, the district court's decision to
exclude the evidence under Rule 403 can not be said to be manifestly erroneous
and an abuse of discretion.
[48] Nonetheless, because this case will be remanded for a new trial,
additional evidence may be presented by the plaintiff showing Dr. Foote's
failure to treat Hathaway's syphilis was the result of deliberate indifference
to a serious medical need. In the face of such new evidence, the district
court is free to reconsider its ruling in the matter.
[49] Conclusion
[50] For the reason stated above, the judgment of the district court
is affirmed in part, reversed in part, vacated, and the matter remanded
for a new trial.
***** BEGIN FOOTNOTE(S) HERE *****
[51] *fn* This matter was not decided during the lifetime of our beloved
colleague J. Daniel Mahoney. The Honorable J. Daniel Mahoney, who was
a member of the panel, died on October 23, 1996, and the appeal is being
decided by the remaining two members of the panel, who are in agreement.
See Local Rule Section(s) 0.14(b).
***** END FOOTNOTE(S) HERE *****
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