Opinion
CIVIL ACTION NO. 02-1059 SECTION "A"(1)
February 5, 2004
ORDER AND REASONS
Before the Court is a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rec. Doc. 38) filed by defendant Dr. Dwight McKenna. Plaintiff, Laymon Adams ("Adams") opposes the motion. The motion, set for hearing on December 3, 2003, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
Adams brings this suit pursuant to 42 U.S.C. § 1983 and state law. Adams alleges that he received improper medical treatment while incarcerated in Orleans Parish Prison, and that this deficient treatment resulted in a below-knee amputation of his right leg. The following facts are taken directly from Adams's state court petition and his amended complaint. The Court accepts all well-pleaded facts as true for the purposes of McKenna's Rule 12(b)(6) motion. See Taylor v. Books A Million. Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)).
On November 8, 2000, Adams injured his right ankle while descending the stairs at his sister's home. Pla.'s Pet. ¶ II. Adams sought medical assistance at Charity Hospital in New Orleans where the treating physicians determined that his ankle was crushed on both the inside and outside of his foot, and the adjoining bone was broken. Id. ¶ III. Adams was treated and sent home with instructions to return for a follow-up visit. Id. Adams returned to Charity on November 13, 2000, after he had broken his temporary cast and re-injured his leg. Id. ¶ V. Adams was hospitalized while awaiting surgery. Id.
Adams underwent surgery on November 21, 2000, during which the physician inserted steel pins into his right foot to hold the ankle bones in place. Id. ¶ VI. The pins were to remain in place for six to eight weeks pending additional surgery. Id. On November 28, 2000, Adams was discharged from the hospital and he cleaned his wound as instructed by the Charity nurses. Id. ¶ VII.
Adams returned to Charity for follow-up treatment on December 6, 2000. While waiting to see his doctor, the New Orleans Police Department arrested him on an outstanding warrant. Id. ¶ VIII. The arresting officer allowed Adams to complete his clinic appointment and his doctor delivered to the arresting officer an appointment card indicating that Adams was scheduled for a follow-up visit on December 3, 2000. Id. The information concerning Adams's medical condition, including the follow-up appointment and a prescription for antibiotics, were given to the intake personnel and medical staff at Orleans Central Lock-up. Id. Adams was then transferred to the medical observation unit of the Orleans Parish Prison.Id. Adams is a diabetic and was taking glucatrol at the time he was admitted to OPP. Id. ¶ IX.
Adams met with Chief Rudy and Dr. McKenna ("McKenna"), mover herein, on December 7, 2000, to discuss his diabetic condition and to demand his pain medication. Id. ¶ X. Adams reminded them of his December 8, 2000, follow-up appointment and they informed Adams that the scheduling unit would handle it. Id. For reasons not apparent from the petition, Adams was not taken to the hospital on December 8, 2000.
Adams's petition recounts in detail how his condition progressively worsened over the next ten days. Adams did not see McKenna again until December 18, 2000, when he returned to duty at the prison. Id. ¶ XIX. On that date McKenna determined that the pins and wound appeared infected. Id. McKenna instructed the nurse to clean the wound and scheduled a follow-up appointment for Adams at Charity Hospital on December 20, 2000. Id. On December 20, 2000, Adams was admitted to Charity Hospital where doctors confirmed that a severe infection had spread in Adams's right foot. Id. ¶ XXI. The Charity physicians treated Adams's wound with antibiotics but to no avail. On January 4, 2001, Adams underwent a below-the-knee amputation of his right leg. Id. ¶¶ XXV-XXVIII.
Adams filed suit, in state court and Defendants removed to this Court. Adams alleges that the conduct of Sheriff Foti's staff constituted deliberate indifference to Adams's serious medical needs in violation of his federal and state constitutional rights. McKenna is named in his individual and official capacities. Adams also alleges that McKenna's treatment fell below the standard of care in the medical community. Adams is therefore also suing McKenna for medical malpractice under Louisiana law. Adams alleges that McKenna knew that Adams was scheduled for continued treatment of his ankle at the Medical Center of Louisiana yet denied him access to that treatment and failed to comply with the follow-up regimen ordered by the treating physicians. Adams asserts that the failure to facilitate the ongoing treatment of his ankle, especially in light of his history of diabetes, was a cause of the amputation.
Adams's petition and amended complaint recount in great detail his encounters with various members of OPP's medical staff. That detail is not reflected in the Court's factual background above because the instant motion pertains only to the claims against McKenna. Plaintiff does not allege that McKenna, who appears to have been merely a staff physician at the prison, bears any vicarious liability for the acts of others. Thus, only McKenna's individual conduct is relevant to the instant motion to dismiss.
II. MCKENNA'S MOTION TO DISMISS
McKenna asserts that Adams is attempting to allege a state law negligence claim as well as a civil rights claim pursuant to 42 U.S.C. § 1983. McKenna asserts that he is a "qualified" health care provider for purposes of the Louisiana Medical Malpractice Act, and that the Act requires that any claims of medical malpractice be presented to a medical review panel prior to the filing of any lawsuit. Because Adams does not allege that his claims were presented to a panel for review, McKenna asserts that the malpractice claims against him are premature and subject to dismissal. Moreover, McKenna asserts that the civil rights claims are likewise premature because as a qualified provider he is entitled to a panel review under any theory of recovery.
Should the Court find that McKenna is not entitled to dismissal on the civil rights claim, McKenna argues that the facts alleged in the complaint fail to state a claim for inadequate medical treatment to an inmate. McKenna also argues that the allegations are insufficient to overcome the qualified immunity defense. Finally, McKenna argues that the claims asserted against him in his official capacity are barred by the Eleventh Amendment.
In opposition, Adams asserts that the Louisiana Medical Malpractice Act does not apply to McKenna as a contract physician for Sheriff Foti. Adams asserts that as a state actor McKenna could only be covered by the public part of the Act. However, because this case involves allegations of wanton and willful misconduct McKenna cannot obtain the protections of the public Act. Adams also asserts that his complaint does state a claim for a violation of his constitutional rights because McKenna ignored his open and festering wound, refused to give him the medication prescribed by the Charity physicians, and refused to return him to his treating physicians. Finally, Adams asserts that the qualified immunity determination should not be made in conjunction with a Rule 12(b)(6) motion to dismiss.
III. DISCUSSION
1. Medical Malpractice Claims
Under Louisiana's Medical Malpractice Act, a health care provider can, by taking specified steps, become qualified for entitlement to certain limitations not available to other tort defendants. Spradlin v. Acadia-St. Landry Med. Found., 758 So.2d 116, 120 (La. 2000). One of the primary limiting provisions available to health care providers is the mandatory pre-suit review by a medical review panel. Id. The special provisions of the Act apply only to malpractice any other liability is governed by general tort law. Id. (citing La. R.S. 40:1299.41(A)(8)).
The Louisiana Legislature enacted two statutory schemes in the realm of medical malpractice, one for private health care providers and one for state providers. Id. n. 5; Vanderhoff v. Beary, 853 So.2d 752, 754 (La.App. 4th Cir. 2003). The Medical Liability for State Services Act or MLSSA applies to claims of medical malpractice against state health care providers. Vanderhoff, 853 So.2d at 754 (citing La. R.S. 40:1299.39(A)). The Medical Malpractice Act or MXA applies to medical malpractice by health care providers to which the MLSSA is not applicable. Id. (citing La. R.S. 40:1299.41(A)).
The MLSSA does not apply to McKenna. The MLSAA defines a "state health care provider," in pertinent part as
The state or any of its departments, offices, agencies, boards, commissions, institutions, universities, facilities, hospitals, clinics, laboratories, health care units, ambulances, ambulance services, university health centers, and other state entities which may provide any kind of health care whatsoever, and the officers, officials, and employees thereof when acting within the course and scope of their duties in providing health care in connection with such state entity.
La. Rev. Stat. Ann. § 40: 1299.39(A)(1)(a)(i) (West Supp. 2004). However, political subdivisions of the state, any health care facility of a political subdivision, and individuals acting in a professional capacity in providing health care services not by or on behalf of the state are expressly excluded from coverage by the MLSSA.Id. § 1299.39(A)(1)(b).
McKenna was employed by Sheriff Foti to provide medical services to inmates in the Sheriff's custody. Louisiana sheriffs, including the Orleans Parish Criminal Sheriff, are not state agencies. Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 280-283 (5th Cir. 2002);Jackson v. State of La., 980 F.2d 1009 (5th Cir. 1993). Orleans Parish is a political subdivision of the state. Because McKenna was not providing medical services on behalf of the state, the MLSSA does not apply to him.
The specific nature of McKenna's employment with Sheriff Foti,i.e., whether he worked part-time under contract or full time at the prison, is unclear at this time. The inquiry is not relevant to the questions currently before the Court.
However, the MMA, which covers non-state health care providers, does apply to McKenna. In Vanderhoff, the Louisiana Fourth Circuit Court of Appeal held that qualified physicians who provide medical services to a parish prison are covered by the MMA. 853 So.2d at 755. A physician does not forfeit the various protections provided by Louisiana law to qualified healthcare providers merely because he provides services to a parish entity. See id. It is undisputed that McKenna is a qualified health care provider and he is therefore covered by the MMA.
The MMA provides that "no action against a health care provider covered by [the Act], or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel. . . ." La. Rev. Stat. Ann. § 40:1299.47(B)(1)(a)(i) (West Supp. 2004). Premature medical malpractice suits are subject to dismissal. See Vanderhoff, 853 So.2d at 755. Consequently, Adams's claims against McKenna are dismissed as premature.
2. Section 1983 Claim
Contrary to McKenna's contention, the dismissal of Adams's malpractice claim does not require dismissal of his § 1983 claim. As explained by the court in Thomas v. James, an inmate's complaint of intentional failure to respond to his medical needs is not governed by the MMA which covers only unintentional acts. 809 F. Supp. 448, 449 (W.D. La. 1993) (citing La. Rev. Stat. Ann. § 40:1299.41(A)(8) (West 1992)). Adams was therefore not required to present his federal civil rights claim to a Louisiana medical review panel. The Court therefore turns its attention to McKenna's assertion that Adams's allegations against him are insufficient to state a claim under § 1983.
The United States Constitution guarantees both convicted prisoners and pre-trial detainees essentials like medical care and safety. Jacobs v. West Feliciana Sheriff's Dep't, 228 F.3d 388, 393 (5th Cir. 2000) (citing Bell v. Wolfish, 441 U.S. 520 (1979)). Convicted prisoners are guaranteed such rights by the Eighth Amendment while pre-trial detainees look to the procedural and substantive due process guarantees of the Fourteenth Amendment. Id. To state a claim for relief under § 1983 for denial of medical treatment, a prisoner must allege deliberate indifference to his serious medical needs. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (citing Woodall v. Foti, 648 F.2d 268, 272 (5th Cir. 1981)). Unsuccessful or merely negligent treatment, including medical malpractice, does not give rise to a constitutional violation.Id. (citing Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)). Deliberate indifference in the context of an episodic failure to provide reasonable medical care means that: 1) the official was aware of facts from an inference of substantial risk of serious harm could be drawn; 2) the official actually drew that inference; 3) the official's response indicates that the official subjectively intended that harm occur. Thompson v. Upshur County, 245 F.3d 447, 458-59 (5th Cir. 2001) (citing Hare, 74 F.3d at 643).
As McKenna notes, Adams's exact status is unclear. For purposes of the instant motion to dismiss, Adams's status is not pertinent because the government owes the same duty of medical care during confinement to detainees as to convicted prisoners. Jacobs. 228 F.3d at 393 (citing Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996)).
Adams alleges that he met with McKenna on December 7, 2000, and informed him of his December 8, 2000, follow-up medical appointment. Pla.'s Pet. ¶ X. Adams alleges that McKenna (and others) denied him access to the Charity physicians and failed to maintain compliance with the follow-up medical regimen. Amend. Comp. ¶ X. Adams also alleges that on December 12, 2000, McKenna was made aware of the seepage from the pins around his wounds but that McKenna took no action to remedy the situation. Id. ¶ XIV.
Adams next alleges contact with McKenna on December 18, 2000. Pla.'s Pet. ¶ XIX. Adams alleges that on December 18th McKenna was concerned about Adams's infected foot and instructed the nurse to clean the wound.Id. Adams alleges that McKenna also scheduled an appointment for him at Charity for December 20, 2000. Id. Adams's final allegation with respect to McKenna is that his conduct was not only negligent but that he was deliberately indifferent to Adams's serious medical needs. Amend. Comp. ¶ XXIX.
Adams has alleged that McKenna was aware of Adams's precarious medical condition and yet he was deliberately indifferent to Adams's serious medical needs. Adams has therefore satisfied his burden of alleging a constitutional violation.
McKenna argues that he should be granted a dismissal on qualified immunity grounds. The first step in the qualified immunity analysis is to determine whether the plaintiff has alleged the violation of a clearly established federal right. Thompson, 245 F.3d at 457 (citingHare v. City of Corinth, 135 F.3d 320 (5th Cir. 1998);Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997)). If the plaintiff does so, the court must then assess whether the defendant's conduct was objectively reasonable in light of clearly established law.Id.
As discussed above, Adams has alleged a constitutional violation. Based only on Adams's allegations which the Court must accept as true, the Court cannot conclude that McKenna's conduct was objectively reasonable. Adams alleges that McKenna intentionally denied him access to his follow-up treatment. Whether Adams can actually prove such an assertion or avoid summary judgment on the qualified immunity defense is a question for another day. For today, it suffices to say that Adams's allegations are sufficient to withstand dismissal at the pleading stage.
Finally, the official capacity claims against McKenna are not barred by the Eleventh Amendment. A lawsuit against a government official in his official capacity is the equivalent of an action against the government entity he serves. Ashe v. Corley, 992 F.2d 540, 541 n. 1 (5th Cir. 1993) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). McKenna was employed by the Orleans Parish Criminal Sheriff, an autonomous local government office separate and apart from the parish he serves. See Burge v. Parish of St. Tammany, 187 F.3d 452, 469 (5th Cir. 1999). McKenna and Sheriff Foti are not employees of the state. The Eleventh Amendment does not apply.
Accordingly;
IT IS ORDERED that the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rec. Doc. 38) filed by defendant Dr. Dwight McKenna should be and is hereby GRANTED IN PART AND DENIED IN PART. The motion is GRANTED in that the claims of negligence and medical malpractice against McKenna are DISMISSED WITHOUT PREJUDICE as premature. The motion is DENIED in all other respects.