Lewellen v. Schneck Med. Ctr. — Aug. 2007 (Full Text)

NA 05-0083-C T/H Lewellen v Schneck Medical Ctr
Judge John D. Tinder

Signed on 08/16/07

NOT INTENDED FOR PUBLICATION IN PRINT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

KEVIN LEWELLEN, )
JANET LEWELLEN, )
)
Plaintiffs, )
vs. ) NO. 4:05-cv-00083-JDT-WGH
)
SCHNECK MEDICAL CENTER, )
A. DAVIS RN, )
JOHN M. REISERT MD, )
SHARON DUFFIELD RN, )
JOHN F. ALEXANDER MD, )
)
Defendants. )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

KEVIN LEWELLEN and JANET
LEWELLEN,

Plaintiffs,

vs.

SCHNECK MEDICAL CENTER a/k/a
SCHNECK MEMORIAL HOSPITAL, A.
DAVIS, R.N., JOHN M. REISERT, M.D.,
JOHN F. ALEXANDER, M.D., and
SHARON DUFFIELD, R.N.,

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

4:05-cv-0083-JDT-WGH

ENTRY ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (Doc. Nos. 45,
54 & 88)1

While driving drunk through Jackson County, Indiana, Plaintiff Kevin Lewellen ran

off the interstate and suffered a burst fracture in his lower back. He was taken to

Defendant Schneck Memorial Hospital (“Schneck”) but was discharged without the burst

fracture being diagnosed. He was then taken immediately to jail for operating a vehicle

while intoxicated. Over the course of his stay in jail, his fracture caused permanent

damage.

This matter comes before the court on Defendants’ motions for summary

judgment. (Doc. Nos. 45, 54 & 88.) Plaintiff sues Defendant health care providers

1 This Entry is a matter of public record and will be made available on the court’s web
site. However, the discussion contained herein is not sufficiently novel to justify commercial
publication.

under 42 U.S.C. § 1983 and the Emergency Medical Treatment and Labor Act, 42

U.S.C. § 1395dd (“EMTALA”).2 Plaintiff argues that two doctors and two nurses at

Schneck violated his Fourteenth Amendment rights to adequate medical care as a

pretrial detainee. He also argues that defendant hospital violated EMTALA’s screening

and stabilization requirements. Defendants Dr. Reisert and Dr. Alexander filed separate

motions for summary judgment, followed by a motion for summary judgment from

Schneck with Nurses Davis and Duffield. All three motions are ripe and the court rules

as follows:

2 Mr. Lewellen’s wife, Janet, is also named as a Plaintiff in this case. The Lewellens’
complaint contains a cause of action for Janet Lewellen’s loss of consortium through EMTALA.
This claim was not addressed in the parties’ briefs and so survives summary judgment.
However, for the sake of clarity, and because only Mr. Lewellen’s claims are discussed in the
briefs on this motion, throughout this Entry the court will refer to Plaintiff in the singular.

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Table of Contents

I.

Summary Judgment Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

II.

Facts for Summary Judgment

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

III.

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-

A.

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

1.

2.

3.

State Action and Under Color of State Law

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-

Deliberate Indifference . . . . . . . . . . . . . . . . . . . . -23-

B.

EMTALA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-

1.

2.

Substance of the EMTALA Claim . . . . . . . . . . . . -34-

Medical Malpractice Act

. . . . . . . . . . . . . . . . . . . -37-

IV.

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -43-

-iii-

I.

Summary Judgment Standard

Summary judgment is appropriate where the pleadings, depositions, answers to

interrogatories, affidavits and other materials demonstrate that there exists “no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). When deciding a motion for summary judgment,

the court considers those facts that are undisputed and views additional evidence, and

all reasonable inferences drawn therefrom, in the light reasonably most favorable to the

nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Baron v. City of Highland Park, 195

F.3d 333, 337-38 (7th Cir. 1999). In order to survive a motion for summary judgment, a

party must “set forth facts showing that there is a genuine issue for trial.” Fed. R. Civ.

P. 56(e).

II.

Facts for Summary Judgment

Plaintiff Kevin Lewellen is a registered nurse anesthetist in Paris, Tennessee,

who made a terrible mistake on June 8, 2003. After a weekend visit with his cousin in

Greenwood, Indiana, Lewellen began the roughly 350 mile journey home with a drink of

scotch. He stopped between Greenwood and Interstate 65 to open his trunk and pour

another glass of scotch and drink it; then he continued on his way. Whether these were

his only drinks that morning or not, three hours later his blood alcohol content would be

nearly four times the legal limit and he would be heading to the hospital, afterwards to

jail.

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Lewellen’s bad judgment caught up with him somewhere in Jackson County,

Indiana, near Seymour. While traveling on Interstate 65, his vehicle left the road, rolled

once, and ended up in a ditch fifty to one hundred yards from the highway.3 The

accident involved only Lewellen’s car, which was badly damaged. Lewellen was also

injured in the accident.

When Troopers Roger Drew and Rick Hudson of the Indiana State Police arrived

at the accident site, paramedics were already there placing Lewellen on a stretcher and

loading him into an ambulance. Lewellen was, according to Drew, clearly intoxicated.

The Troopers had the EMTs draw blood from Lewellen to test his blood alcohol level.4

According to the probable cause determination filed the next day in Jackson County

Superior Court, the time of arrest was 2:22 pm. But because Lewellen had been in an

accident and was complaining of lower back pain, the EMTs transported him to Schneck

Memorial Hospital (“Schneck”),5 a county-owned hospital. Troopers Drew and Hudson

completed some work at the accident site and then proceeded to Schneck to await

Lewellen’s release.

3 Exactly what circumstances led to the crash—other than Lewellen’s intoxication—are
cloudy; Lewellen remembers little. The police report indicates that Lewellen was traveling
northbound (i.e., in the opposite direction of his destination). Lewellen believes he was traveling
southbound. Lewellen claimed at the time of the accident that he had fallen asleep at the
wheel, but now admits that he missed an exit ramp and may have misled the police at the scene
out of fear. At any rate, these facts are not relevant to the outcome of this motion.

4 The record does not indicate whether Lewellen consented to the blood being taken or

not.

5 The hospital is now know as Schneck Medical Center.

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Piecing together what transpired at the hospital is complicated by the fact that

Lewellen’s recollection is understandably hazy and all of the personnel at Schneck deny

any memory of the incident. But a basic narrative can be cobbled together from the

hospital records, from Lewellen’s patchy recollections, and from the State Troopers,

who in contrast to the health care providers, do remember the events of June 8, 2003.

According to hospital records, Defendant Amanda Davis, a nurse in the

Emergency Department, admitted Lewellen to the hospital shortly after 3:00 p.m. She

did an initial assessment and noted on Lewellen’s chart that he had been in a motor

vehicle accident. After this initial assessment, Defendant John M. Reisert, a doctor on

duty, examined Lewellen. Reisert noted that Lewellen was complaining of lower back

pain and his lumbar spine was tender. Reisert ordered x-rays of Lewellen’s lumbar and

cervical spine to determine whether Lewellen had fractured his back in the accident.

Lewellen was then taken to the x-ray room. Construing the facts most favorably

to Lewellen,6 several x-rays were taken of Lewellen while he was flat on his back with

no trouble. However, when the technicians tried to turn Lewellen on his side to get a

different view, Lewellen remembers being in significant pain. Somewhere in the

process Dr. Reisert modified his order to eliminate several of these views requiring

6 The accounts of what transpired in the x-ray room vary. Although no one but Lewellen
remembers the events, the hospital records blame the poor quality of the x-rays on Lewellen’s
abusive and uncooperative behavior. Lewellen contends that to the extent he was
uncooperative it was due to the tremendous amount of pain he was in as the x-ray technicians
attempted to turn him. Trooper Drew backs Lewellen’s version by stating that Lewellen was
nothing but cooperative when he observed him. In any case, the facts must be construed in
Lewellen’s favor.

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Lewellen to be turned on his side. One technician noted in Lewellen’s records that he

was “uncooperative [and] made threats to staff.” (Pls.’ Ex. 10, at 010.) The final x-ray

was a lateral view (essentially a side view) of his lumbar spine, requiring Lewellen to be

rolled on his side ninety degrees.

At 3:51 p.m., the lab report on Lewellen’s blood alcohol test revealed that he had

a blood alcohol level of .297. Before the last of Lewellen’s x-rays had even printed, at

4:07 p.m., Davis informed Lewellen that Reisert was discharging him. This was less

than one hour after Lewellen had been admitted to the hospital. Lewellen refused to

sign the consent to discharge, pleaded with Davis that he was in tremendous pain and

begged to talk to the doctor. Nurse Davis told Trooper Drew, who was at the hospital

waiting for Lewellen with Trooper Hudson, that Lewellen was not cooperating in the

discharge and asked if Drew would sign the discharge. Drew refused.

Drew then went to Lewellen and explained what the investigation had revealed

and that Lewellen would have to go to the county jail. Drew claims that Lewellen was

not combative or uncooperative, but Lewellen was insistent that he was in great pain

and that the hospital had not examined him sufficiently. Drew asked Nurse Davis about

Lewellen’s pain and asked if the hospital was really done examining him. Nurse Davis

responded that Lewellen was fine, he was just drunk.

However, Lewellen was in too much pain to stand or walk. Drew got Trooper

Hudson to help him put Lewellen in a wheelchair that nurse Davis was holding steady.

Lewellen could not even sit properly in the wheelchair. According to Drew, Lewellen

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assured Drew that “I’m not upset with you, I’m in pain. Something is wrong and I can’t

stand up.” (Drew Aff. ¶ 8.) Throughout this process, Lewellen continued to plead with

the officers and Nurse Davis that he was in pain and that something was wrong. Drew

explained to Lewellen that once the hospital had discharged him he had no choice but

to transport Lewellen to jail.

At 4:10 p.m., three minutes after Nurse Davis attempted to get Lewellen to sign

his discharge papers, Lewellen was discharged from the hospital. At exactly the same

time, according to hospital records, the last of Lewellen’s x-rays came off the printer.

Lewellen contends that Dr. Reisert did not even bother to look at these x-rays before

deciding to discharge him. And given the fact that some of the x-rays were not printed

until after Lewellen was informed he was being discharged, this fact can be construed in

his favor. At some point, whether before or after Lewellen was discharged, Reisert

wrote on the ER chart that the x-rays revealed no fracture and that Lewellen’s lack of

cooperation caused the films to be of poor quality.

Because of the amount of pain that Lewellen was in, Troopers Drew and Hudson

varied from normal practice and handcuffed Lewellen in the front rather than the back

as they transported him to jail. Officer McPherson was working in the Jackson County

Jail that afternoon and observed Lewellen screaming out in pain as he was led through

the booking process. Throughout, Lewellen asked to be taken back to Schneck for

medical treatment. But Lewellen was placed in a cell at the Jackson County Jail.

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At 6:15 p.m., two hours after being discharged from the hospital, Defendant Dr.

John F. Alexander, a radiologist at Schneck, looked at Lewellen’s x-rays as part of a

second read quality control process. His report mentions the poor quality of the x-rays

and blames Lewellen’s lack of cooperation, but Alexander admitted in his deposition that

he had no reason to believe that that was the case. The report also states that

Lewellen’s spine had an ossific density left of the L1-L2 disc space that could be an

osteophyte,7 but a fracture “cannot be completely excluded” because the lateral view of

the lumber spine was not diagnostic, meaning that it was not clear enough to be useful.

According to protocol, if the radiologist notices something that the ER physician missed,

the radiologist needs to communicate with the ER physician. From the record, it

appears that Alexander contacted no one.

Yet there was something seriously wrong with Lewellen. He had a burst fracture

in his spine that was damaging his spinal nerves while he was being held in the Jackson

County Jail. Over the course of the night, Lewellen started to notice neurological

systems like numbness in his lower body. Despite the fact that Alexander and Reisert

claim not to be able to tell if there was a fracture from Lewellen’s x-rays, several other

doctors who have looked at them say that a fracture can be seen. These include

Alexander’s boss, Dr. Staib, who although he could understand how “an optical illusion”

could make a radiologist miss the fracture, in his deposition was asked: “if you got that

[x-ray] that night before you even looked at the lateral . . . you could tell, couldn’t you,

7 An osteophyte is also called a bone spur.

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Doctor, that it was fractured?” The doctor responded: “I hope that I would be able to do

that.” (Staib Dep. 43.)

Dr. David Schwartz, an orthopedic surgeon at Methodist Hospital in Indianapolis,

who later performed surgery on Lewellen, was more blunt. In an affidavit submitted by

Lewellen, Schwartz claims that a burst fracture is clear from the x-rays taken at

Schneck on June 8. He writes: “There is nothing ambiguous about these x-rays. When

you put them on a view box, the fracture at L-2 is immediately apparent on both the AP

and lateral views.” (Schwartz Aff. ¶ 2.) Dr. Bennie Martin Fulbright, an orthopedic

surgeon, who treated Lewellen in Tennessee, also agrees that the fracture is visible

from the June 8 x-rays. (Fulbright Aff. ¶ 7.)

Lewellen passed several hours in jail with this, as of yet, undetected burst

fracture. Around 9:00 p.m. Officer McPherson went back to Lewellen’s holding cell to

check on another inmate. He saw Lewellen crying in pain and noticed that Lewellen

had urinated all over himself. Lewellen told McPherson that his back hurt around the L5

vertebrae. McPherson asked if Lewellen had any medical training and Lewellen

responded that he did.

McPherson left the cell to call the jail nurse, who, when informed that Schneck

had released Lewellen, instructed McPherson to give Lewellen some Tylenol.

Unsatisfied, McPherson called Schneck’s Emergency Department directly. He spoke

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with Defendant Sharon Duffield8 who said she would check with a physician and call

McPherson back.

As promised, Nurse Duffield called McPherson back shortly after 11:00 p.m. and

said that someone had re-reviewed the x-ray and found an abnormality. For some

reason Duffield instructed McPherson not to notify Lewellen. It is unclear from the

record what the relationship between Schneck and the county jail was, but McPherson

testified in his affidavit that the department could not take Lewellen back to Schneck

unless Schneck “ordered” it. Despite notifying McPherson that there was an

abnormality in his x-ray, Duffield told McPherson not to bring Lewellen back to the

hospital and did not give any instructions as to a proper treatment.

Officer McPherson was so upset with the nurse’s response that he contacted the

jail commander imploring him to get medical help for Lewellen. The commander

suggested that since they could not transport a detainee to Schneck, they might release

Lewellen on his own recognizance. To do this, McPherson had to fill out paperwork for

an Own Recognizance Order and submit it to judge. This was done and an ambulance

was called to pick up Lewellen.

Before the ambulance arrived, McPherson went back to the holding cell to tell

Lewellen that medical help was being secured. He noticed blood on the wall of the cell

8 Although the report McPherson made contemporaneously listed the nurse’s name as
“Sandra” a reasonable jury could conclude that this nurse was Sharon Duffield. Nurse Duffield
was on call at the time and Officer McPherson claims to have received a call from Nurse
Duffield regarding this case in 2005.

-8-

and looked at Lewellen, finding a deep laceration on his arm that had not been treated

in any way. The cut still had grass and dirt in it.

At 1:00 a.m., June 9, 2003, Lewellen arrived back at Schneck. A CT scan of his

spine performed at Schneck revealed that during the night Lewellen spent in jail, a

fragment of bone from the burst fracture has displaced and was impinging on his spinal

column. Lewellen was later transported to Methodist Hospital in Indianapolis and was

operated on by Dr. David Schwartz.

Despite the operation, Lewellen suffered from permanent neurological defects as

a result of this injury. Lewellen cannot urinate or defecate on his own; he suffers from

some sexual dysfunction. Dr. Schwartz believes that had Lewellen been properly

treated on June 8, 2003, instead of discharged, he “more likely than not [] would have

remained neurologically intact.” (Schwartz Aff. ¶ 10.)

III.

Discussion

Lewellen sues four individuals and the hospital. He sues Duffield, Davis, Reisert,

and Alexander under 42 U.S.C. § 1983 for violating his Fourteenth Amendment rights

as a pretrial detainee to adequate medical care. He also sues the hospital for violating

the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd. The

court will address the § 1983 claims first.

-9-

A.

42 U.S.C. § 1983

Lewellen sues two doctors and two nurses involved in his treatment at Schneck

from June 8-9, 2003, under 42 U.S.C. § 1983 for violating his Fourteenth Amendment

right to adequate medical care. When in the custody of state or local authorities, a

pretrial detainee is required to receive access to adequate medical care pursuant to the

Due Process Clause of the Fourteenth Amendment. Jackson v. Illinois Medi-Car, Inc.,

300 F.3d 760, 764 (7th Cir. 2002). A pretrial detainee’s due process right to medical

care is violated when a state official “acts with deliberate indifference toward the

detainee’s serious medical needs.” Qian v. Kautz, 168 F.3d 949, 955 (7th Cir. 1999)

(compiling several cases).

All four individual Defendants argue that they should be granted summary

judgment for the same three reasons. First, they are not state actors as required by the

Fourteenth Amendment and 42 U.S.C. § 1983. Second, Lewellen was not in state or

local custody while he received treatment at Schneck.9 Third, even construing the facts

most favorably to Lewellen, they were not deliberately indifferent to his serious medical

needs.

1.

State Action and Under Color of State Law

To be liable under 42 U.S.C. § 1983, not only must an individual violate a

plaintiff’s rights secured by the Constitution and laws of the United States, the individual

9 Dr. Reisert in contrast to the other Defendants did not argue in his brief that Lewellen
was not in state custody when he arrived at Schneck.

-10-

must also be acting under color of state law. Case v. Milewski, 327 F.3d 564, 566 (7th

Cir. 2003) (citing West v. Adkins, 487 U.S. 42, 48 (1988)). The right secured by the

Constitution in this case is the right, guaranteed through the Fourteenth Amendment, to

adequate medical care for a pretrial detainee. Therefore, Defendants must also be

state actors because “it is well established that the Fourteenth Amendment ‘erects no

shield against merely private conduct, however discriminatory or wrongful.’” Wade v.

Byles, 83 F.3d 902, 904 (7th Cir. 1996) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002

(1982)). Conduct that satisfies this state action requirement of the Fourteenth

Amendment will also satisfy the under color of state law requirement of § 1983. Lugar

v. Edmondson Oil Co., 457 U.S. 922, 935 (1982).

“[S]tate employment is generally sufficient to render the defendant a state actor .

. . .” Id. at 935 n.18; but see Polk County v. Dodson, 454 U.S. 312 (1981) (holding

public defender not a state actor). On the other hand, the actions of private parties

working as independent contractors for the state are not automatically transformed into

state actions, even if the contractor works exclusively for the government. Rendell-

Baker v. Kohn, 457 U.S. 830, 841 (1982).

Yet sometimes the action of an independent contractor is considered state

action. See, e.g., West, 487 U.S. at 57. The essential question is whether the

nominally private conduct is properly attributable to the state. Brentwood Academy v.

Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001); Lugar, 457 U.S. at 924.

This inquiry is a fact-intensive one that “is a matter of normative judgment, and the

criteria lack rigid simplicity.” Brentwood Academy, 531 U.S. at 295; see also Tarpley v.

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Keistler, 188 F.3d 788, 791 (7th Cir. 1999). As the Court has explained: “no one fact

can function as a necessary condition across the board for finding state action; nor is

any set of circumstances absolutely sufficient, for there may be some countervailing

reason against attributing activity to the government.” Brentwood Academy, 531 U.S. at

295-96. The Supreme Court has, however, listed three broad categories where it has

treated a nominally private entity as a state actor:

We have treated a nominally private entity as a state actor when it is
controlled by an “agency of the State,” Pennsylvania v. Board of Directors
of the City Trusts of Philadelphia, [353 U.S. 230, 231 (1957)] (per curiam),
when it has been delegated a public function by the State, cf., e.g., West
v. Atkins [487 U.S.] at 56; Edmonson v. Leesville Concrete Co., [500 U.S.
614, 627-628 (1991)], when it is “entwined with governmental policies,” or
when government is “entwined in [its] management or control,” Evans v.
Newton, [382 U.S. 296, 299 (1966)].

Id. at 296.

In this case, Defendant nurses are both employees of Schneck, a county-owned

hospital.10 While the court is mindful that not every action by a state employee is state

action, see, e.g., Perkins v. Rich, 204 F. Supp. 98 (D. Del. 1962) (police officer swearing

10 Dr. Alexander citing a district court case from South Carolina, Mitchell v. Chontos, 756
F. Supp. 243, 247-48 (D.S.C. 1990) (adopting report and recommendation of magistrate judge),
argues that Schneck itself is not a state actor. The court disagrees. A county-owned public
hospital, like a public school or a municipal park, is a state actor subject to the proscriptions of
the Fourteenth Amendment. Beedle v. Wilson, 422 F.3d 1059, 1070 (10th Cir. 2005)
(“Subsequent cases from our court have held, with little fanfare, that public trust and county
hospitals are properly deemed state actors for § 1983 purposes.”); McKeensport Hosp. v.
Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 528 (3d Cir. 1994) (“Courts
commonly hold a state agency, like a county hospital district, for example, is a state actor even
though it is not engaged in actions that are traditionally the exclusive province of the state.”);
see also Dunn v. Washington County Hosp., 429 F.3d 689, 692 (7th Cir. 2005) (analyzing
county hospital’s actions as if a state actor).

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out complaint as private citizen not state action), Plaintiff alleges that his constitutional

rights were violated by the nurses’ actions related to their government employment, not

their private conduct. This is generally enough to show that they exercised power

“possessed by virtue of state law and made possible only because the wrongdoer is

clothed with the authority of state law.” West, 487 U.S. at 49; see also Lugar, 457 U.S.

at 935-36 n.18.

Nurses Davis and Duffield argue that their actions cannot be attributed to the

state and that “[a]ny attempt to attribute their actions to the State simply on the basis of

their employment by Schneck Medical Center is feeble.” (Defs.’ Br. 10.) Defendants

argue that if, as a general rule, Davis’s and Duffield’s conduct is considered state

action, state-employed nurses everywhere will be subject to § 1983 suits from

dissatisfied patients. Whether or not nurses’ potential exposure to § 1983 suits is really

as great as Defendants contend, this has not protected public school teachers and

officials who violate students’ constitutional rights from liability, e.g., Doe v. Smith, 470

F.3d 331, 340-41 (7th Cir. 2006) (public school teacher acting under color of law when

he sexually abused student). Neither should it protect state-employed nurses who

violate patients’ constitutional rights.

Unlike Davis and Duffield, Defendant doctors are not nominally employees of the

hospital or the County. Like most doctors working for hospitals, Defendants are

employed as independent contractors. See Sylvia A. Law, Do We Still Need A Federal

Patients’ Bill of Rights, 3 Yale J. Health Pol’y L. & Ethics 1, 15 (2002). At the time of

Plaintiff’s treatment at Schneck, Dr. Reisert was an employee of Jackson County

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Emergency Physicians, a private entity which contracted with Schneck to provide

physician services at the Emergency Department. Dr. Alexander was an employee of

Dr. Staib, who in turn was an independent contractor with Schneck to provide

radiological services.

Plaintiff argues that although Reisert and Alexander are nominally private actors,

their actions in this case are properly attributable to the state. In support of his

argument, Plaintiff cites West v. Adkins, 487 U.S. 42. In West, the Supreme Court held

that a physician who contracted with the prison system to provide medical services to

prisoners could be a state actor for the purposes of the Eighth Amendment. Id. at 54.11

The court explained that although the contractual relationship between the doctor and

state was not the same as other state employees, “[i]t is the physician’s function within

the state system, not the precise terms of his employment, that determines whether his

actions can fairly be attributed to the State.” Id. at 55-56. In essence, the state

delegated an affirmative constitutional obligation—medical treatment for inmates—to Dr.

Adkins, who, in performing this function, was a state actor. Id. at 56.

As the Supreme Court explained, there were significant policy reasons for finding

state action. As a prisoner, West could only receive medical treatment from someone

approved by the state to treat him. As the Court explained:

11 The analysis for an Eighth Amendment claim for failure to provide adequate medical
care to an inmate is the same as a Fourteenth Amendment claim for failure to provide adequate
medical care to a pretrial detainee. See infra.

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If Doctor Adkins misused his power by demonstrating deliberate
indifference to West’s serious medical needs, the resultant deprivation
was caused, in the sense relevant for state-action inquiry, by the State’s
exercise of its right to punish West by incarceration and to deny him a
venue independent of the State to obtain needed medical care.

Id. at 55. If a doctor who contracts with the state to provide inmate medical care is not

liable under § 1983, inmates are “deprive[d] . . . of the means to vindicate their Eighth

Amendment rights.” Id. at 56. Importantly in West: “[1] The State bore an affirmative

obligation to provide adequate medical care to West; [2] the State delegated that

function to respondent Atkins; and [3] respondent voluntarily assumed that obligation by

contract.” Id.

Dr. Reisert urges that emergency services, like those performed in this case, are

distinguishable from the in-prison physician services in West. He cites Sykes v.

McPhillips, 412 F. Supp. 2d 197 (N.D.N.Y. 2006) (Hurd, J.), where the district court

granted summary judgment for defendant physician on a § 1983 claim because he was

not a state actor. Plaintiff inmate was brought to a private hospital where defendant

was an emergency room doctor. Id. at 199. Plaintiff claimed that defendant physician

was deliberately indifferent to his serious medical needs. Id. at 200. Defendant claimed

that he was not a state actor; plaintiff argued that the private hospital regularly treated

inmates, the physician contracted with the hospital to provide emergency services, and

could, therefore, expect to treat inmates. Id. at 203. Further, defendant knew plaintiff

was an inmate when he treated him. Id.

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The court rejected this argument relying partly on another Northern District of

New York case in front of the same judge, Nunez v. Horn, 72 F. Supp. 2d 24 (N.D.N.Y.

1999) (Hurd, J.). In Nunez, defendant physician performed orthopedic surgery on an

inmate in a private hospital; the court granted summary judgment for defendant

because he was not a state actor. The court distinguished West because the physician

performed the surgery not in a prison hospital—“subject to all of the pressures and

constraints resulting from security concerns”—but in a private hospital—“a much more

physician-controlled environment.” Id. at 27. Also the physician in Nunez had not

contracted with the Bureau of Prisons or the state to provide services to inmates. Id.

The court in Sykes found that these reasons applied in the case before it plus an

additional reason: while the physician in Nunez accepted the inmate as a referral, the

physician in Sykes had one encounter with the inmate for emergency treatment. Sykes,

412 F. Supp. 2d at 204. As the district court in Sykes explained in holding that the

private hospital was also not a state actor, federal EMTALA law requires a hospital

participating in the federal Medicare program to treat all patients who arrive at the

emergency department. Id. at 203. “Willingness to accept patients under these

circumstances cannot be construed, even impliedly, as contracting to provide

emergency medical services [for inmates].” Id.

In Sykes, the court reasoned that the strong policy reasons for holding the

physician to constitutional standards were outweighed by the fact that the private

hospital and doctors were conscripted through EMTALA to accept every patient whether

a prisoner or not. Id. (“However compelling this policy concern, it is not likely that

-16-

Congress intended to confer state actor status through this interpretation of EMTALA

and there is no indication in West that the Supreme Court would extend the scope of

such status to all providers of care to prisoners without an express contract.”). The

court need not discuss the persuasiveness of that finding, however, because the court

agrees with Plaintiff that the reasoning of Sykes is inapplicable to this case because

Schneck, unlike the hospitals in those cases, is public.12

The strong normative reasons for finding state action in this case as articulated in

West are not offset by any other policy. The concern in Sykes of confusing conscription

of private actors through EMTALA with a private actor voluntarily accepting

responsibility for a public function is not applicable here. Schneck is a public hospital

that ultimately shares a constitutional responsibility to provide pretrial detainees with

medical care. Even without EMTALA or an express contract with the State Police, it

would have to treat pretrial detainees presented to it within the bounds of the Fourteenth

Amendment.13 That Schneck delegated its constitutional responsibility to treat pretrial

detainees to independent contractors—parties who voluntarily accepted the delegation

12 Plaintiff also argues that Schneck’s medical staff worked in concert with the jail staff
and that for this reason, the doctors should be considered state actors. Plaintiffs point to Dr.
Reisert’s testimony that his released Lewellen into a “watched atmosphere” and was aware that
the jail would not take prisoners with blood alcohol levels above .30%. But this is hardly a
sufficient nexus between the state and private actors to attribute their actions to the state. Cf.
Brokaw v. Mercer County, 235 F.3d 1000, 1016 (7th Cir. 2000) (listing elements to establish §
1983 liability through a conspiracy theory).

13 Further, there appeared to be some sort of delegation accepted by Schneck—after
all, Officer McPherson testified that he could not transport Lewellen to Schneck unless “ordered”
by Schneck personnel.

-17-

through contract—should not deprive Plaintiff of a chance to vindicate his constitutional

rights.

Further, the court respectfully disagrees with the Northern District of New York

that there is any meaningful distinction between situations like Nunez and West based

on where the inmate is treated. While the Court in West mentioned the effect of the

correctional setting on professional judgment, 487 U.S. at 56 n.15, this court is more

persuaded by Conner v. Donnelly, 42 F.3d 220 (4th Cir. 1994). In Conner v. Donnelly,

the United States Court of Appeals for the Fourth Circuit reversed summary judgment in

favor of defendant doctor on the issue of state action, despite the fact that the doctor did

not have a contractual relationship with the state. The defendant doctor saw plaintiff

inmate on referral from the prison physician. Id. at 221-22. Although the physician

treated the inmate outside of the prison environment, the court found this distinction

irrelevant, noting: “It is the physician’s function while working for the state, not the place

where he performs his duties, that determines whether he acts under color of state law.”

Id. at 226. Further, “it is irrelevant . . . that Donnelly treated Conner in his office, where

he treats regular patients. . . . Donnelly acted under color of state law, not because he

treated Conner differently than other patients, but because the state authorized him to

treat Conner in order to fulfill the state’s constitutional obligation toward Conner.” Id.14

14 In his brief, Dr. Reisert attempted to distinguish Conner by noting that defendant
doctor in that case was reimbursed by the state, whereas Lewellen’s insurance paid for his
treatment at Schneck. However, this is irrelevant. That Lewellen was billed and paid for his
treatment does not alter the fact that the state was constitutionally obligated to provide him
access to medical treatment if he was a pretrial detainee.

-18-

Drs. Reisert and Alexander argue that there was no agreement between them

and the state to treat inmates and pretrial detainees. However, they were employed by

private entities that themselves voluntarily contracted with the state to provide general

medical services. Although from the evidence before the court it is not clear whether

either entity contracted specifically to treat inmates or pretrial detainees, in reality,

treating these types of patients was part of what they did under their contracts with the

state. It should not matter that the entirety of Defendants’ contract with the state was

not dedicated to performing affirmative constitutional obligations of the state. Cf. West,

487 U.S. at 56 (“It is the physician’s function while working for the State, not the amount

of time he spends in performance of those duties or the fact that he may be employed

by others to perform similar duties, that determines whether he is action under color of

law.”)

A trier of fact could determine the obligation to treat pretrial detainees and

inmates was delegated to defendant doctors through Schneck. If part of the doctors’

contractual duties is a public function, the doctors should be held to the same

constitutional standards that the state itself is prior to its delegation. It should not matter

that this public function was not explicitly stated in the contract; as long as it was a

necessary (and presumably foreseen) part of fulfilling the contract, the independent

contractors voluntarily accepted the public function delegated to them.

It is for these reasons that a trier of fact could find that the relationship between

the state and the nominally private conduct in this case is functionally identical to that in

West. Indiana has an affirmative duty under the Fourteenth Amendment to provide

-19-

pretrial detainees with medical care. To fulfill its obligation, it took Lewellen to Schneck,

another arm of the state. Schneck in turn delegated its affirmative obligation to the

entities that employed Defendant doctors. Through their contract with the state, these

employers voluntarily assumed the responsibility. Therefore, the court cannot say as a

matter of law that Defendant doctors were not state actors.

This is not to say that as a matter of law, they were. This highly factual analysis

must be submitted to a trier of fact to determine whether given the circumstances of the

relationship between the hospital, the state, and the independent contractors that a

public function was delegated to Defendant doctors and, thus, that their actions in

performing it are properly attributable to the state. What is important at this stage of the

proceedings is that a reasonable trier of fact might determine that the Defendant were

state actors; therefore, on this issue, the Plaintiff survives summary judgment.

2.

Custody15

Defendants argue that even if they are state actors, Lewellen was not in custody

when he arrived at Schneck on June 8, 2006. Therefore, because the state has no

15 Only Dr. Alexander denied that Lewellen was in police custody in his answer; all other
defendants, including Nurses Davis and Duffield, admitted that Lewellen was in police custody.
(See Reisert Answer, Doc. 26, ¶ 43; Alexander Answer, Doc. 27, ¶ 43; Duffield, Schneck, Davis
Answer, Doc. 28, ¶ 43). However, Nurses Davis and Duffield argued in their brief that Lewellen
was not in police custody as part of their denial that they were state actors. To the extent that
their judicial admission in the answer does not cover this argument, the court includes this
section.

-20-

affirmative duty to provide emergency medical services, see Hill v. Shobe, 93 F.3d 418,

422 (7th Cir. 1996), Lewellen’s constitutional rights were not violated regardless of

whether Defendants were deliberately indifferent to Lewellen’s serious medical needs.

In Salazar v. Chicago, 940 F.2d 233 (7th Cir. 1991), the Seventh Circuit affirmed

a directed verdict against defendant police officers and for defendant paramedics. The

court began by addressing the preliminary question of whether plaintiff was in custody.

Id. at 237.16 Plaintiff was in a motor vehicle accident while intoxicated and treated by

paramedics at the accident scene while police officers were present. Id. He later died

and his estate sued the paramedics and officers alleging they were deliberately

indifferent to his serious medical needs. Id. at 235. The court framed the question of

custody as: “whether Salazar was in custody, or, more precisely, free to leave and seek

help on his own while the paramedics treated him.” Id. at 237. The court treated this as

a factual issue and noted: “Although [an officer] did not formally arrest [plaintiff] until

after the paramedics left, it may be that [the officers] would not have let [plaintiff] go, and

that the paramedics knew that [plaintiff] was not free to leave.” Id.

A jury would have ample evidence to find that Lewellen was in custody while at

the hospital. First, Lewellen presented evidence that the police would not have let him

go while he was being treated at Schneck. Most importantly, when Lewellen begged to

be allowed to stay and receive treatment after he was discharged, he was taken to jail.

16 Although the analysis was technically dicta because the paramedic-defendants in the
case eventually conceded that plaintiff should be treated as a pretrial detainee, the framework
developed by the Seventh Circuit in the case is still useful.

-21-

It could be inferred, then, that the troopers would not have let him go to receive

treatment from another provider of his choosing half an hour earlier during his

treatment. Also, in the probable cause determination paperwork, the police noted the

time of arrest at 2:22 p.m., or the time they arrived at the accident scene; this is a good

indication that in their mind, Lewellen was not free to leave during his stay at Schneck.

Second, Lewellen presented evidence that the staff knew he was in custody

during his treatment at Schneck. The police were present at the hospital waiting for

Lewellen to be discharged. When nurse Davis had trouble getting Lewellen to sign his

discharge papers, she went to Trooper Drew and asked him to sign them. This is a

clear sign that she believed the officers had custody and that Lewellen was not free to

go. According to Plaintiff’s facts, nurse Duffield had to know Lewellen was in custody

when she spoke with Officer McPherson because McPherson was calling from the jail

asking if he should bring Lewellen back to Schneck. A reasonable jury could determine,

given these facts, that Lewellen was not free to leave and seek help on his own.

Defendants point out that Lewellen did not receive his Miranda warnings or

notice of arrest until the time of discharge. But custody and formal arrest are not the

same thing. See id. As long as Lewellen was not free to seek medical help on his own,

he was in custody for purposes of a pretrial detainee’s Fourteenth Amendment right to

medical care. Defendant Reisert additionally argued in his brief that the Lewellen’s

insurance was billed for the medical treatment rather than the state. This fact is hardly

dispositive. A trier of fact could still find that, given all of the other facts in favor of

-22-

finding custody, Lewellen’s paying for the service does not prove that he was free to

seek medical care on his own.

3.

Deliberate Indifference

Finally Defendants argue that even construing the facts in Lewellen’s favor, they

were not deliberately indifferent to his serious medical needs. A pretrial detainee is

entitled to access to adequate medical care by the Fourteenth Amendment. City of

Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). The rights of pretrial detainees

“are at least as great as the Eighth Amendment protection available to a convicted

prisoner.” Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 259 (7th Cir. 1996).

Therefore, courts analyze a Fourteenth Amendment claim for denial of medical services

under the Eighth Amendment standard. Higgins v. Corr. Med. Servs. of Ill., Inc., 178

F.3d 508, 511 (7th Cir. 1999).

In order to prevail under the Eighth Amendment or the Fourteenth Amendment

on a claim for denial of medical services, a prisoner or detainee must show “deliberate

indifference to a prisoner’s serious illness or injury.” Estelle v. Gamble, 429 U.S. 97,

104 (1976). Meeting this standard requires both an objective and a subjective element.

Objectively, a condition must be serious, meaning “the failure to treat [the] condition

could result in further significant injury or the unnecessary and wanton infliction of pain.”

Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). Subjectively, the defendants

must have acted with deliberate indifference, in other words, they “[knew] of and

disregard[ed] an excessive risk to [detainee’s] health or safety; the official must both be

-23-

aware of facts from which the inference could be drawn that a substantial risk of serious

harm exists, and [they] must also draw the inference.” Farmer v. Brennan, 511 U.S.

825, 837 (1994).

A showing of negligence on the part of the official will not be enough to show

deliberate indifference. Estelle, 429 U.S. at 106. “Medical malpractice does not

become a constitutional violation merely because the victim is a prisoner.” Id. On the

other hand, plaintiffs do not have to show that the officials intended for the inmate to

suffer harm. Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996). “It is enough to show

that the defendants actually knew of a substantial risk of harm to the inmate and acted

or failed to act in disregard of that risk.” Walker v. Benjamin, 293 F.3d 1030, 1037 (7th

Cir. 2002) (citing Haley, 86 F.3d at 641). This may be established by showing that “the

danger was objectively so great that actual knowledge of the danger could be inferred.”

Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir. 1985); see also Farmer, 511 U.S. at

842.

That Lewellen satisfied the objective part of the test is beyond question. He

arrived at Schneck on June 8, 2003, with an unstable burst fracture in his lower spine.

Failure to treat the condition not only could lead to further significant injury, it did. Dr.

Schwartz wrote in his affidavit that had Lewellen been treated properly rather than

hastily discharged, he might have avoided any neurological damage. (Schwartz Aff. ¶

10.) In their briefs, Defendants do not argue this part of the test.

-24-

They do argue that they were not deliberately indifferent to this serious medical

need. Defendant nurses argue that Lewellen failed to produce any evidence that they

knew about his condition. Without a showing that they actually knew he had a serious

medical need, the failure to treat him is merely negligent, which does not rise to the

level of a Constitutional violation. Snipes v. De Tella, 95 F.3d 586, 590-91 (7th Cir.

1996). But knowledge may be inferred “when the medical professional’s decision is

such a substantial departure from accepted professional judgment, practice, or

standards as to demonstrate that the person responsible did not base the decision on

such a judgment.” Estate of Cole, 94 F.3d at 262.

Plaintiff has demonstrated that there is a genuine issue of material fact on

whether Dr. Reisert was deliberately indifferent to Lewellen’s serious medical needs.

According to evidence presented by Plaintiff, Dr. Reisert knew that Plaintiff had been in

an automobile accident and was complaining of back pain. However, the x-rays that Dr.

Reisert ordered were being printed off almost contemporaneously to Lewellen’s

discharge. Two doctors, Drs. Schwartz and Fulbright, testified that a burst fracture is

clearly visible on the x-rays that were being printed off as Lewellen was discharged. As

explained above, a trier of fact could use this evidence to determine that Dr. Reisert

ordered Lewellen discharged before even looking at these x-rays. Given that Plaintiff

was in an automobile accident and was in such visible agony that a State Trooper

questioned the decision to discharge Lewellen, discharging Lewellen without looking at

an x-ray was such a deviation from accepted professional judgment that a trier of fact

-25-

could easily determine that Dr. Reisert did not base his decision to discharge Plaintiff on

it. The § 1983 claim against Dr. Reisert survives summary judgment.

Given his role at the hospital, there is also a genuine issue of material fact as to

whether Dr. Alexander was deliberately indifferent to Lewellen’s serious medical needs

despite Dr. Alexander’s not looking at Plaintiff’s x-rays until after he was discharged.

According to Dr. Staib, who at the time was Dr. Alexander’s boss, the reason for a

second read of the x-rays is to verify that the initial read by the Emergency Department

doctor, in this case Dr. Reisert, was correct. (Staib Dep. 121, 125.) If the radiologist

reaches a different conclusion than the initial read, that result must be conveyed to the

ordering physician. Dr. Staib testified that this is usually done first by telephone and

then that notification is documented. According to Dr. Staib: “Unexpected positive

results should be communicated directly and that communication should be

documented.” (Id. at 130.)

Upon reviewing Lewellen’s x-rays, Dr. Alexander claimed that he could not rule

out a burst fracture. Dr. Staib testified that the type of result that Dr. Alexander found in

Lewellen’s x-rays is that type of result that should have been directly communicated.

(Id.) There is no doubt that it was not; however, Dr. Alexander claims that he put the

notes in the hospital’s system for anybody to look at and that this is enough under

hospital policy to fulfill any duty he had. Given Dr. Staib’s testimony, a trier of fact could

determine that it was not enough.

-26-

Further, a trier of fact could determine that Dr. Alexander had enough information

about Lewellen’s situation for his failure to do more than post his notes to constitute

deliberate indifference. First, there is enough evidence for a trier of fact to determine

that Dr. Alexander was aware of a risk of Plaintiff having a burst fracture and aware of a

risk of that fracture getting worse, yet did nothing but passively issue an equivocal

report without specifically notifying anyone. Plaintiff claims that there is enough

evidence for a trier of fact to determine that in the face of evidence that Plaintiff had a

burst fracture, Dr. Alexander deliberately reported an equivocal reading of Plaintiff’s x-

rays in order to save the hospital embarrassment. But even if a trier of fact does not go

that far, it could easily determine that Dr. Alexander was aware of a significant risk that

Lewellen had burst fracture. Dr. Alexander himself admitted he knew there was at least

a small risk. (Alexander Dep. 128-29.) Several doctors presented testimony that the

burst fracture was obvious from the x-rays Dr. Alexander viewed the night of June 8,

2003. Dr. Alexander claimed that what he saw could be an osteophyte, but that a

fracture could not be excluded. But Dr. Schwartz testified that no radiologist could

confuse the fracture on the x-ray for an osteophyte. (Schwartz Aff. ¶ 2.)

Dr. Alexander argues that even with knowledge of a risk to Lewellen, he was not

deliberately indifferent to the serious medical needs to a pretrial detainee because he

was not subjectively aware of the ramifications of his inaction. In reality, Dr. Alexander’s

inaction carried significant consequences because Lewellen was in custody without

access to medical care while bone fragments in his spine were causing permanent

damage. Had Dr. Alexander attempted to contact Dr. Reisert or the Jackson County

-27-

Jail to tell them either that more tests needed to be done because the previous results

were inconclusive or that treatment should begin for a burst fracture, perhaps Lewellen

would not have experienced any permanent damage.

But what is critical for the subjective prong of the deliberate indifference analysis

is that Dr. Alexander was actually aware of these risks when he failed to notify Dr.

Reisert or the Emergency Department of his findings. Dr. Alexander claims that he

never knew that Lewellen was in custody while at the hospital or that he was taken to

jail after he was released. Rather, he claims that he assumed that Lewellen was still in

the hospital awaiting the diagnostic results. Perhaps Dr. Alexander, although aware of

the risk to Lewellen, assumed that if Lewellen were still in significant pain a CT scan

could reveal any fracture and that there was little risk of further harm to Lewellen while

being watched in the hospital.

Yet a trier of fact could determine that Dr. Alexander is not being truthful about

what he knew of Lewellen’s situation that night. First, Dr. Alexander did not originally

mention any of this in his deposition or his original affidavit. He originally claimed to

have no memory of Lewellen’s case at all and has subsequently added these key facts

about what he assumed about Lewellen’s remaining in the hospital. A trier of fact could

infer that contrary to Dr. Alexander’s claims, he did know that Lewellen was in custody

and discharged from the hospital and therefore disregarded a serious risk to a pretrial

detainee’s health by doing nothing but post his equivocal report. Dr. Alexander wrote in

-28-

his contemporaneous report that Lewellen was drunk and combative.17 Schneck is also

a small, rural hospital with one Emergency Department Doctor on duty and one

radiologist on duty at the time Lewellen was originally brought to the hospital. It is not a

far leap to infer that Dr. Alexander was aware of the circumstances of Lewellen’s

drunken, supposedly combative interaction with hospital staff that afternoon, including

his being taken away by the police. Had Dr. Alexander looked at Lewellen’s hospital

records, he could have determined that Lewellen was discharged from the hospital and

did not sign his discharge papers. Perhaps these types of interactions take place all the

time at Schneck and radiologists are completely unaware of the circumstances, but this

is a question of fact not to be decided on summary judgment. Given this, a trier of fact

could determine that Dr. Alexander’s failure to do anything but post his equivocal report

on the hospital system was demonstrating deliberate indifference to Lewellen’s serious

medical needs.

As for the nurses, they both argue that their duty was to obey the orders of

physicians and to notify the physicians of any changes in the patient’s condition. This,

they argue, is exactly what they did. According to Davis, Dr. Reisert released Lewellen

and she was only obeying his orders. But Davis cannot rely on the doctor’s release to

abdicate all her responsibility when Lewellen’s needs were so obvious.

17 Dr. Alexander also wrote that additional tests could be performed when the patient
was less agitated. It could be argued that this demonstrates his belief that Lewellen was still in
the hospital. However, it is equally consistent with knowledge that a patient is in police custody
and can be ordered back to the hospital for additional tests.

-29-

The Eighth Circuit in Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997), upheld the

verdict from a bench trial finding a nurse deliberately indifferent to the serious medical

needs of an inmate who went into premature labor. Plaintiff, seven months pregnant,

had a history of premature labor. When she had bloody show, she was transferred from

the Iowa Medical and Classification Center (“IMCC”), where defendant was a nurse, to

the University of Iowa Hospitals. The University determined that she was not in active

labor and released her to the IMCC, but instructed that she should return to the

University “if her contractions became painful, regular, and separated by ten minutes or

less.” Id. at 782. The next day at 7:00 pm, plaintiff had extreme pain in her lower

abdomen and reported to the prison nurse who told her to return when the contractions

were six to seven minutes apart. At 9:30 pm, she returned claiming her contractions

were six minutes apart, but defendant could not feel any contractions. Plaintiff returned

to her living unit and “sat on the edge of her bed in increasing pain until 11:25 pm.” Id.

at 783. Finally, she started screaming in pain and laid in the fetal position on the floor.

When the nurses came, they still could not feel any contractions. But when they asked

her to stand, she expelled fifteen cubic centimeters of dark red blood. They then

transferred her to the University where her baby was born.

The trial court found that defendant was deliberately indifferent through her

unnecessary delay in transferring plaintiff to the University. Defendant argued that she

was following the doctors’ instructions that plaintiff not be returned to the hospital until

her contractions were painful, regular and separated by ten minutes or less. Despite

the doctor’s instructions, the district court concluded that defendant had actual

-30-

knowledge based on the obviousness of plaintiff’s serious medical need. The circuit

court held that this conclusion was not clearly erroneous. The court explained:

[Plaintiff’s] propensity for precipitous labor and premature delivery was
well-documented and expressly noted by prison officials in Coleman’s
medical records, to which [defendant] had been exposed, and constituted
the sole reason for Coleman’s placement at IMCC. From this evidence, a
trier of fact could have found that [defendant] had actual knowledge of the
risk of pre-term labor.

Id. at 786.

The same inference can be made in the case of Nurse Davis. When Trooper

Drew saw Lewellen at the hospital, Lewellen “was insistent that the hospital had not

examined him sufficiently and that he had terrible pain in his lower back.” (Drew Aff. ¶

7.) Drew even asked Nurse Davis directly if the hospital was done examining him. (Id.)

Nurse Davis’s response was that Lewellen was just drunk and that of course he would

have some pain after a motor vehicle accident. But Lewellen was in such pain that he

could not put any weight on his legs and had to be put into a wheelchair. Nurse Davis

was present for all of this. Trooper Drew observed Lewellen in so much pain that he

deviated from standard practice and cuffed him in the front rather than the back.

Trooper Drew also specifically told the jailers upon dropping Lewellen off that despite

the hospital’s release, Lewellen was in so much pain that someone should keep a close

eye on him. (Drew Aff. ¶ 11.)

Given the amount of pain that Drew observed, Lewellen’s inability to place any

weight on his legs, and his pleading to Nurse Davis that he was in tremendous pain and

-31-

needed to see a doctor, the jury could conclude that Davis was aware of Lewellen’s

serious medical need. She need not have looked at Lewellen’s x-ray to know that there

was something wrong, especially given the fact that the Trooper Drew and Officer

McPherson seemed to know something was wrong. There were numerous red flags

waving from which a jury could conclude that Nurse Davis was deliberately indifferent to

a serious medical need of Lewellen.

Given the facts surrounding Nurse Duffield’s phone conversation with Officer

McPherson, a trier of fact could also determine that she was deliberately indifferent.

Defendant Duffield first argues that she was not the nurse that spoke with Officer

McPherson. She points out that the police log detailing the conversation claims that the

nurse’s name was “Sandra”, while her name is “Sharon.” But this question of fact must

be construed in favor of Plaintiff. The trier of fact could find that nurse McPherson

spoke with was Duffield, and not some other nurse named Sandra, given that those

names are similar and that Duffield was working at the time. Officer McPherson also

claims that he received a call from Duffield herself essentially admitting that she was the

one who spoke with him and scolding McPherson for telling others what she had said

that night.

Nurse Duffield certainly knew that Lewellen had a serious medical condition

because she herself informed the police that Lewellen’s x-ray came back with an

abnormality. Bizarrely, according to McPherson, she instructed the police not to tell

Lewellen of this result and specifically told Officer McPherson not to bring Lewellen

back to Schneck. Officer McPherson further claims that he could not take Lewellen to

-32-

Schenck without someone there ordering him; Defendants present no evidence to

counter his statement. Given that, a reasonable jury could find Nurse Duffield acted

with deliberate indifference when she called to present this information without working

in any way to provide assistance. She knew that there was an abnormality in his x-ray

and she knew that Lewellen could not leave the jail to receive his own medical care.

There are many possible explanations for her behavior that would stop short of

deliberate indifference; however, Defendants have presented no evidence which would

preclude a jury as a matter of law from concluding that it was simply deliberate

indifference that caused her to act the way she did. Therefore, a jury will be allowed to

make that determination. The motion for summary judgment is DENIED as to all the §

1983 claims against the individual Defendants.

B.

EMTALA

Plaintiff also presents a claim against Schneck under the Emergency Medical

Treatment and Active Labor Act (“EMTALA”). Schneck argues that it should receive

summary judgment on this claim because even construing the facts in Lewellen’s favor,

they met the requirements of EMTALA. In the alternative, Schneck seeks partial

summary judgment ruling that the caps on recovery under Indiana’s Medical Malpractice

Act work to limit Schneck’s liability to $250,000.

-33-

1.

Substance of the EMTALA Claim

The Emergency Medical Treatment and Active Labor Act (EMTALA) was passed

to combat the problem of “patient dumping;” that is, the practice of transferring or

discharging indigent or non-insured patients while their emergency conditions worsen.

Johnson v. Univ. of Chi. Hosps., 982 F.2d 230, 233 n.7 (7th Cir. 1993). There are two

requirements for certain federally-funded hospitals under EMTALA. First, a hospital

“must provide for an appropriate medical screening examination within the capability of

the hospital’s emergency department . . . to determine whether or not an emergency

medical condition . . . exists” 42 U.S.C. § 1395dd(a).18 Second, if an emergency

18 The relevant portion of 42 U.S.C. § 1395dd reads:

(a) Medical Screening Requirement

In the case of a hospital that has a hospital emergency department, if any
individual (whether or not eligible for benefits under this subchapter) comes to
the emergency department and a request is made on the individual’s behalf for
examination or treatment for a medical condition, the hospital must provide for an
appropriate medical screening examination within the capability of the hospital’s
emergency department, including ancillary services routinely available to the
emergency department, to determine whether or not an emergency medical
condition (within the meaning of subsection (e)(1) of this section) exists.

(b) Necessary stabilizing treatment for emergency medical conditions and labor

(1) In general

If any individual (whether or not eligible for benefits under this subchapter) comes
to a hospital and the hospital determines that the individual has an emergency
medical condition, the hospital must provide either–

(A) within the staff and facilities available at the hospital, for such further medical
examination and such treatment as may be required to stabilize the medical
condition, or

(B) for transfer of the individual to another medical facility in accordance with
(continued…)

-34-

medical condition is detected by this screening, the patient may not be discharged until

he or she has received a stabilizing treatment or transferred when certain criteria are

met. § 1395dd(b)(1), (c). The statute authorizes a patient harmed by a hospital’s failure

to adhere to either of these two requirements to sue the hospital. § 1395dd(d)(2).

A hospital is only required to stabilize an emergency medical condition that they

actually know about. Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139, 145 (4th Cir.

1996). Schneck claims that it performed an appropriate medical screen and thus that

the stabilization requirement was not triggered. Therefore, although Lewellen presents

two separate claims under EMTALA, one for screening, the other for stabilization, they

necessarily collapse into one. The court need only analyze Lewellen’s screening claim.

If Schneck fulfilled the screening requirement, then the stabilization claim necessarily

fails too because the stabilization requirement was not triggered. If Schneck did not

fulfill the screening requirement, it is liable and there is no need to analyze the

stabilization requirement separately.

EMTALA is not a national medical malpractice statute imposing a standard of

care on hospital emergency rooms. See Brooks v. Maryland Gen. Hosp., Inc., 996 F.2d

708, 713 (4th Cir. 1993). A hospital that conducts an appropriate medical screen yet

fails to detect, or misdiagnoses, an emergency medical condition—even if negligent and

liable under medical malpractice—is not liable under EMTALA. Bryant v. Adventist

18(…continued)
subsection (c) of this section.

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Health Sys./W., 289 F.3d 1162, 1166 (9th Cir. 2002); Marshall on Behalf of Marshall v.

E. Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 322-23 (5th Cir. 1998).

“EMTALA aims at disparate treatment.” Brooks, 996 F.2d at 713. Therefore, a

patient must show that he was treated differently from other patients. Williams v.

Birkeness, 34 F.3d 695, 697 (8th Cir. 1994). The Ninth Circuit explained in Jackson v.

East Bay Hospital, 246 F.3d 1248, 1256 (9th Cir. 2001) there are two ways to prove an

inappropriate screening:

We hold that a hospital satisfies EMTALA’s “appropriate medical
screening” requirement if it provides a patient with an examination
comparable to the one offered to other patients presenting similar
symptoms, unless the examination is so cursory that it is not “designed to
identify acute and severe symptoms that alert the physician of the need for
immediate medical attention to prevent serious bodily injury.”

Id. (quoting Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1257 (9th Cir. 1995)).

Defendants correctly point out that Plaintiff presented no evidence that the

screen performed on him differed from any other patient’s screen. However, a

reasonable jury could conclude that the screen performed was so cursory that it was not

designed to identify acute and severe symptoms and thus did not meet the

requirements of EMTALA. In its brief, Schneck barely argues Reisert’s screen was

more than cursory. Schneck argues only that Reisert did something and found

Lewellen had a normal neurological exam. Defendants claim: “Based upon his

examination, Dr. Reisert brought to bear on the case his medical judgment and

concluded Mr. Lewellen could be safely discharged.” (Defs.’ Br. 19.)

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But according to the evidence presented by the Plaintiffs, the x-rays ordered by

Dr. Reisert were being printing off as Lewellen was being discharged. A jury could

conclude that either Dr. Reisert did not even bother to look at them or looked at them so

casually that he missed what two other physicians said was obvious: that the x-rays

demonstrate that Lewellen had a burst fraction in his spine. If Reisert did not study the

x-rays how could his screen be designed to identify acute and severe symptoms?

Lewellen’s stay at the hospital was alarmingly brief considering he was in a motor

vehicle accident and complaining of severe back pain so bad he could not stand or sit in

a chair correctly. Lewellen still had a bleeding gash in his arm with grass and dirt in it

when he arrived at prison. The court is mindful that EMTALA’s screening requirement

means something more than an inadvertent failure to follow the regular screening

process in a particular case. Cf. Summers v. Baptist Med. Cen. Arkadelphia, 91 F.3d

1132, 1139 (8th Cir. 1996) (citing Correa v. Hosp. San Francisco, 69 F.3d 1184, 1192-

93 (1st Cir. 1995). But this scenario is so grave that a jury could conclude that rather

than a negligent deviation from normal practice, the screening requirement was simply

not met. For this reason, Schneck’s motion for summary judgment will be DENIED.

2.

Medical Malpractice Act

Schneck argues that if the EMTALA claim survives summary judgment, the court

should rule that Indiana’s Medical Malpractice Act limits Lewellen’s total recovery to

$1.25 million and Schneck’s liability to $250,000. EMTALA authorizes suit for personal

harm but limits the damages recoverable to “those damages available for personal

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injury under the law of the State in which the hospital is located.” 42 U.S.C. §

1395dd(d)(3)(A).

Two cases decided in the Southern District of Indiana have held that this

language commands that limits on damages under Indiana Medical Malpractice Act

apply to EMTALA claims that fall within Indiana’s definition of malpractice. See Valencia

v. St. Francis Hosp. & Health Ctr., No. 1:03-cv-0252-LJM-WTL, 2004 WL 963712 (S.D.

Ind. March 1, 2004) (McKinney, C.J.); Reid v. Indianapolis Osteopathic Med. Hosp., 709

F. Supp. 853 (S.D. Ind. 1989) (Barker, J.). Some United States Court of Appeals

decisions have also held state medical malpractice damage limits applicable to

EMTALA claims. See Smith v. Botsford Gen. Hosp., 419 F.3d 513 (6th Cir. 2005);

Power v. Arlington Hosp. Ass’n, 42 F.3d 851 (4th Cir. 1994).

Indiana’s Medical Malpractice Act limits the “total amount recoverable for an

injury or death of a patient” to “$1,250,000.” Ind. Code § 34-18-14-3(a)(3). However, a

qualified health care provider is “not liable for an amount in excess of two hundred fifty

thousand dollars ($250,000) for an occurrence of malpractice.” § 34-18-14-3(b). A

patient’s compensation fund makes up “[a]ny amount due from a judgment or settlement

that is in excess of the total liability of all liable health care providers . . . .” § 34-18-14-

3(c). A surcharge levied on all health care providers is deposited into the fund. § 34-

18-6-1.

Defendant argues that if the previous rulings of the Southern District are

followed, these damage limits should be applied and, thus, Schneck can be liable for no

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more than $250,000.19 Although Plaintiff asks the court to hold differently than the

opinions of Chief Judge McKinney and Judge Barker, the court is reaching the same

result as those and like the Fourth and Sixth Circuits concludes that the medical

malpractice limits should apply to cap Plaintiff’s recovery.

Plaintiffs argue that the plain language of the EMTALA statute should be applied,

meaning that the medical malpractice caps would not be incorporated. According to

Plaintiffs, the legislative history of EMTALA contains references to medical malpractice;

therefore, Congress was familiar with the term and chose not to apply it. The statute

indicates that “those damages available for personal injury” rather than a specific

reference to medical malpractice. In Indiana, there are no general limits to the amount

recoverable for personal injury. Plaintiffs also argue that the language of the provision

is permissive rather than prohibitive and thus should not be read as overly restrictive.

But these arguments are not persuasive in the face of the legislative history of

EMTALA. In Power v. Arlington Hospital Association, the Fourth Circuit looked at the

legislative history and found that Congress intended—contrary to Plaintiff’s

assertion—for medical malpractice caps to apply, when applicable to the claim by state

law. A broad phrase like “personal injury” was used, the court wrote, “so that it would

19 Neither of previous opinions from the Southern District addressed how the patient’s
compensation fund relates to EMTALA. Judge Barker’s opinion in Reid v. Indianapolis
Osteopathic Medical Hospital incorporated the qualified provider limit ($100,000 at the time,
$250,000 now) without a discussion of whether the patient’s compensation fund would make up
any excess liability. See Reid, 709 F. Supp. at 854. Chief Judge McKinney’s opinion
discussed only the higher total patient recovery limit ($1.25 million) and did not express an
opinion on whether the qualified provider limit would also apply to the hospital. See Valencia,
2004 WL 963712 at *5.

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not be necessary to delineate each and every type of limitation on damages, e.g.,

limitations on punitive damages, noneconomic losses, and malpractice damages caps,

that the states might have enacted.” Power, 42 F.3d at 862. The House Committee on

the Judiciary expressed concern about “‘the potential impact of these enforcement

provisions on the current medical malpractice crisis.’” Id. (quoting H.R. Rep. No. 241,

99th Cong., 1st Sess., pt. 3, at 6). In particular, the Committee noted the impact of

severe penalties on hospitals in rural and poor areas. Id. When the Conference

Committee modified the bill to its final form, it commented “[t]he courts are directed, on

the issue of damages, to apply the law of the State in which the violating hospital is

located, for actions brought by a harmed individual . . . .” Id. (quoting H.R. Conf. Rep.

No. 99-453, 99th Cong., 1st Sess., 131 Cong. Rec. H13093, H13226 (daily ed. Dec. 19,

1985)). So, as noted by the Power court, the reference in EMTALA to damages

available in the state where the hospital is located was appropriately broad to cover all

types of state law limits on damages.

Judge Barker of this court also noted in Reid that:

Congress “was clearly aware of a growing concern in some states that
excessive damage awards were fueling a medical malpractice ‘crisis,’” and
that Congress apparently wished to preserve state-enacted ceilings on the
amount of damages that could be covered in EMTALA through the
incorporation of § 1395dd(d)(2)(A).

Id. (quoting Reid, 709 F.Supp. at 903-04).20

20 The statute itself also contains a provision about preemption of state law, § 1395dd(f)
states that EMTALA does not preempt state law unless the state law “directly conflicts with a
(continued…)

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But the more critical analysis is how Indiana law treats the type of conduct of

which the plaintiff complains. In other words, does Indiana law limit the damages from

medical treatment as a personal injury? Clearly it does. See Ind. Code § 34-18-14-3.

In Indiana, malpractice is defined as “a tort or breach of contract based on health care

or professional services that were provided, or that should have been provided, by a

health care provider.” Ind. Code § 34-18-2-18. This is a broad definition, but does not

include every claim of a patient against a health care provider. See, e.g., Pluard v.

Patients Compensation Fund, 705 N.E.2d 1035, 1041-42 (Ind. Ct. App. 1999) (falling

surgical lamp improperly installed not a health care issue); Methodist Hosp. of Ind., Inc.

v. Ray, 551 N.E.2d 463, 466 (Ind. Ct. App. 1990) (contracting Legoinnaire’s disease

while patient not a situation unique to hospitals); Doe v. Madison Ctr. Hosp., 652 N.E.2d

101, 104-05 (Ind. Ct. App. 1995) (sexual assault by counselor “cannot be recast to

speak in the language of medical malpractice.”).

In his brief, Lewellen does not argue that this case is outside Indiana’s definition

of medical malpractice and, therefore, not subject to its damage limitations. So, the

court need not explore this issue in depth, but the court notes that Lewellen’s injuries

appear to be firmly within the Medical Malpractice Act and thus should be subject to the

Medical Malpractice Act’s limits on damages. Yet Lewellen argues that for policy

reasons, the court should apply the Act’s limits piecemeal, applying only the $1.25

million total patient recovery cap, not the $250,000 qualified provider cap. In other

20(…continued)
requirement of this section.” In his brief, Plaintiff does not argue that the medical malpractice
cap directly conflicts with a requirement of EMTALA.

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words, Schneck, despite the fact it would only be liable for $250,000 under the Medical

Malpractice Act should be liable for all damages up to $1.25 million. Lewellen claims

that he can not petition the patient’s compensation fund to make up any difference

between Schneck’s $250,000 limit and any additional damages up to $1.25 million. If

Schneck can only be liable for $250,000, the Act’s $1.25 million cap is meaningless as

applied to EMTALA claims falling within the Act. Indiana Code § 34-18-14-3(b), Plaintiff

claims, must be read in light of 3(c), which says that any excess liability must be paid by

the patient compensation fund.

Applying the $250,000 limit to Schneck rather than the $1.25 million total liability

limit makes more sense than applying bits and pieces of the Medical Malpractice Act

limitations, given the legislative history cited in Power. Congress, concerned with the

weight of excessive judgments on rural institutions, like Schneck, incorporated the

state’s limitations on claims to limit EMTALA claims that would have been limited under

state law. The State of Indiana limits any provider’s liability on a malpractice claim to

$250,000. While part of that scheme includes a patient’s compensation fund that

makes up the excess liability, it appears that Congress intended EMTALA damages to

fit within the limits of that system. For these reasons, Defendant Schneck’s motion for

partial summary judgment will be GRANTED.21

21 Further, Lewellen’s premises are suspect. First, it is not clear that the Fund could not
be petitioned to pay out the excess damages on an EMTALA claim. For example, the
Wisconsin Supreme Court has held that its patient’s compensation fund must pay on EMTALA
claims. Burks v. St. Joseph’s Hosp., 569 N.W.2d 391, 402 (Wis. 1999). In Patient’s Comp.
Fund v. Hicklin, 823 N.E.2d 705 (Ind. Ct. App. 2005), a patient petitioned the Fund after settling
with a hospital on both his EMTALA and medical malpractice claim. (Although the Court of
Appeals of Indiana held that the patient’s estate could not access the fund, the reason was
(continued…)

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IV.

Conclusion

The Fourteenth Amendment does not proscribe private conduct in any way;

therefore, a violation requires state action. However, a trier of fact could find all four

individual Defendants to be state actors. Further, a trier of fact could find that all four

were deliberately indifferent to Lewellen’s serious medical needs. Therefore,

Defendants’ motions for summary judgment on the § 1983 claim will be DENIED.

Plaintiff also presented enough evidence to survive summary judgment on his EMTALA

claim against Defendant hospital and that motion will also be DENIED. However, the

damages caps of the Indiana Medical Malpractice Act will apply to limit Schneck’s

potential EMTALA liability to $250,000.

The Court has concluded that there is not a need for oral argument on the

Motions for Summary Judgment, therefore, the Request for Oral Argument (Document

No. 57) is DENIED.

ALL OF WHICH IS ORDERED this 16th day of August 2007.

John Daniel Tinder, Judge
United States District Court

21(…continued)
because the settlement agreement was structured as a periodic payment plan with a present
value of less than the policy amount.) Second, it is likely that Lewellen would be limited to
$1.25 million for all claims he might bring related to his treatment at Schneck (the EMTALA
claim and any medical malpractice claims) because there is only one injury in this case. See
Ind. Code § 34-18-14-3. Therefore, any doctor liable under a medical malpractice theory would
also be liable for an additional $250,000. Lewellen is not really limited to $250,000, as he
claims.

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Copies to:

Magistrate Judge William G. Hussmann, Jr.

William David Bridgers
NEAL & HARWELL PLC
dbridgers@nealharwell.com

Gary J. Clendening
MALLOR CLENDENING GRODNER & BOHRER
gjclende@mcgb.com

Kristen Vanderkooi Dyer
NEAL & HARWELL PLC
kdyer@nealharwell.com

Philip Norman Elbert
NEAL & HARWELL PLC
pelbert@nealharwell.com

Christopher Charles Hagenow
HOPPER & BLACKWELL
chagenow@hopperblackwell.com

Kirk Robert Jocham
HALL RENDER KILLIAN HEATH & LYMAN
kjocham@hallrender.com

Belinda Rose Johnson
MALLOR CLENDENING GRODNER & BOHRER LLP
bjohnson@mcgb.com

Edward J. Liptak
CARSON BOXBERGER
liptak@carsonboxberger.com

Christopher L. Riegler
HALL RENDER KILLIAN HEATH & LYMAN
criegler@hallrender.com

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