A 21-year-old jail inmate died while in the custody of a county jail. Her Estate brought a civil action for deprivation of civil rights under color of state law. 42 U.S.C. § 1983. The United States district court granted summary judgment in favor of the county and qualified immunity to jail supervisors and staff. However, the district court denied qualified immunity to jail medical personnel, a physician and a nurse. The district court held that genuine issues of material fact precluded qualified immunity on the Estate’s claims of (1) deliberate indifference to serious medical needs against the nurse and (2) supervisory liability against the physician.
The United States Court of Appeals Tenth Circuit (“Federal Appellate Court”) held in its opinion dated March 2, 2021 that (1) the jail physician is entitled to assert qualified immunity under the particular facts of this case and (2) the jail physician did not violate the inmate’s clearly established constitutional rights. The Federal Appellate Court stated, “Because Dr. Tubbs is a private physician, as opposed to a government employee, we must determine whether he is entitled to claim qualified immunity … Dr. Tubbs was carrying out government responsibilities — namely, providing medical services to inmates — but was merely doing so on a part-time basis. He was working alongside the jail’s officers and LPN, Ms. Clyde, whose full-time job was to monitor and provide some care for the inmates. In fact, had Dr. Tubbs been working as a doctor for the county on a full-time basis (e.g., like Ms. Clyde does as an LPN), he would have certainly been able to raise a qualified immunity defense … Thus, common law principles support Dr. Tubbs’ ability to raise a qualified-immunity defense.” The Federal Appellate Court held: “given the common law principles and underlying policy concerns, we conclude that Dr. Tubbs may claim qualified immunity. However, we highlight the unique circumstances of this case that led to allowing Dr. Tubbs to raise the defense.”
Supervisory Liability and Qualified Immunity
The Federal Appellate Court stated that the Estate bases its supervisory liability claim on Dr. Tubbs’ failure to establish a protocol or provide training to Ms. Clyde. The Estate must establish three elements: (1) personal involvement; (2) causation; and (3) state of mind. A supervisor is personally involved when he or she created, promulgated, implemented, or had responsibility over the policy at issue. It can also be shown by a “complete failure to train” or such “reckless or grossly negligent” training that makes misconduct nearly inevitable. For causation, the Estate must show that Dr. Tubbs set in motion a series of events that he knew or reasonably should have known would cause others to deprive Ms. Jensen of her constitutional rights. Finally, for the state-of-mind element, Dr. Tubbs must have knowingly created a substantial risk of constitutional injury.
The Federal Appellate Court stated, “Although Dr. Tubbs’ set of protocols and training may not have been the most robust, the facts demonstrate that the Estate cannot establish the requisite degree of personal involvement, causation, and state of mind to impose supervisory liability. As noted, Ms. Clyde was an LPN who had limited ability in providing medical services to inmates. She could not prescribe medications, conduct health assessments, or diagnose medical conditions. While she received some training from Dr. Tubbs and PA Clark and had training as a part of licensure, her job often comprised of notifying Dr. Tubbs and PA Clark when medical issues arose. As a result, Dr. Tubbs had in place a 24/7 on-call system where Ms. Clyde or any jail officers could call him or PA Clark with their concerns.”
The Federal Appellate Court held: “Given that Ms. Clyde knew she could call Dr. Tubbs when Ms. Jensen presented with these symptoms, we cannot conclude that any alleged failings by Dr. Tubbs to implement policies or provide training caused Ms. Jensen’s death … Even if we were to conclude that the Estate established a viable claim for supervisory liability, the right involved was not clearly established. For a right to be clearly established, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.””
Nurse’s Qualified Immunity Claim
The Estate based its claim of deliberate indifference to serious medical needs against Ms. Clyde on her failure to secure medical treatment despite obvious risks to Ms. Jensen’s health. Ms. Clyde contends that she took reasonable steps to provide care and that she was not aware that Ms. Jensen faced serious medical needs. She also argued that even if she violated Ms. Jensen’s rights, those rights were not clearly established. The district court denied qualified immunity noting that a reasonable jury could conclude that she was deliberately indifferent depending on some of the operative facts which were in dispute.
A claim for deliberate indifference to serious medical needs has an objective and subjective element. The objective element considers whether the harm suffered was sufficiently serious. The subjective element asks whether Ms. Clyde knew Ms. Jensen faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it. Thus, the Estate must show that Ms. Clyde was both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and she must draw the inference.
The Federal Appellate Court held: “We conclude that the Estate has sufficiently shown deliberate indifference … Viewing the facts in the light most favorable to the Estate, evidence has shown Ms. Clyde was aware that: Ms. Jensen had opiates in her system; she looked sick and was “walking like a skeleton”; she had been soiling her sheets and had diarrhea; she had been vomiting for four days straight; and that she was unable to keep food or water down. We believe that these circumstances — particularly her self-report that she had been vomiting for four days and could not keep down water — present a risk of harm that would be obvious to a reasonable person … Despite this obvious risk to Ms. Jensen, Ms. Clyde failed to take any reasonable measures … to the extent Ms. Clyde classifies her conduct as a “misdiagnosis,” a trier of fact could conclude that she did not just misdiagnose Ms. Jensen, she “completely refused to fulfill her duty as gatekeeper” … Ms. Clyde was the gatekeeper in this case and she failed to fulfill that role when she chose to give Ms. Jensen Gatorade instead of calling Dr. Tubbs or PA Clark … we affirm the district court’s decision that Ms. Clyde is not entitled to qualified immunity.”
Source Estate of Jensen v. Clyde, Estate of Jensen v. Tubbs, No. 20-4024/No. 20-4025.
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