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Paris v. Conmed Healthcare Management, Inc.

United States District Court, D. Oregon

November 28, 2017

LINDA MAE PARIS, in her individual capacity and as a personal representative of the ESTATE OF DONNIE RAY BROWN, deceased, Plaintiff,


          THOMAS M. COFFIN, United States Magistrate Judge

         Plaintiff brings claims on behalf of decedent Donnie Ray Brown's estate against Conmed, Coos County, and certain of their employers arising out of the death of Brown while he was an inmate at Coos County Jail.

         Presently before the court are motions for summary judgment filed on behalf of the Conmed defendants (#135) and the Coos County defendants (#130).[1] The standards applicable for such motions are well-known to the parties and are succinctly set forth herein:


         Federal Rule of Civil Procedure 56 allows the granting of summary judgment:

if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). There must be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is missing. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the burden shifts to the nonmovant to produce specific evidence to establish a genuine issue of material fact or to establish the existence of all facts material to the claim. Id., see also, Bhan v. NME Hosp., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991): Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099. 1105 (9th Cir. 2000). In order to meet this burden, the nonmovant "may not rely merely on allegations or denials in its own pleading, " but must instead "set out specific facts showing a genuine issue of fact for trial." Fed.R.Civ.P. 56(e).

         Material facts which preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. On the other hand, if, after the court has drawn all reasonable inferences in favor of the nonmovant, "the evidence is merely colorable, or is not significantly probative, " summary judgment may be granted. Id.

         As noted, however, in addressing the defendants' motion, the court must draw all reasonable inferences from the evidentiary record in favor of the plaintiff.


         A. Chronology of Events during Brown's Incarceration

         Donnie Ray Brown was an inmate at the Coos County Jail serving a 30 day sentence during November 2013.[2] Beginning on November 12, Brown began evidencing signs of distress (difficulty breathing) while on work detail. He was examined that morning by Nurse Marjory Hausler, a Conmed staff nurse assigned to the Coos County jail, and EMT Jim Morgan. Hausler referred Brown to Nurse Practitioner Judith Stensland (who scheduled visits on a weekly basis at the jail but was not regularly stationed there) for further examination when she was scheduled to visit the jail two days later, and discontinued his participation in the work program pending that examination. She also placed him on medical lockdown and moved him to a cell on a lower tier to avoid his climbing the stairs.

         On November 14, Ms. Stensland examined Brown and he reported symptoms of shortness of breath, vomiting, diarrhea, abdominal pain, leg swelling, and weakness. Stensland noted his abdomen was somewhat tense, but thought he was tightening his abdomen on purpose and was exaggerating his abdominal pain. She assessed him as having gastroenteritis which she anticipated would resolve withing 3-5 days and expected to see him at her next visit to the jail. In the interim, she planned to keep him off work detail, a decision that Hausler concurred with when she later reviewed Stensland's chart notes.

         The November 14th visit was the last time Brown was seen or examined by either Nurse Hausler or Nurse Stensland. Hausler traveled to Nashville, Tennessee to attend a Conmed conference from Monday, November 18 through Thursday, November 21. Neither Ms. Hausler nor anyone at Conmed made arrangements to replace her at the jail with another nurse during her absence. In lieu of a substitute nurse, the medical care oversight for inmates was "delegated"[3] to EMTs[4] employed by Conmed at the facility. Both Hausler and her supervisor, Mary Raines, attended the Nashville conference. Raines made no effort to find a nurse to fill in for Hausler and states she relied on Hausler to decide how to provide coverage in her absence. In the past, that substitute coverage for any absences by Hausler had been provided by Nurse Mary Krahn, who had retired from Conmed in August, 2013. However, shortly after her retirement, Krahn signed a Nursing Independent Contractor Agreement with Conmed, effective September 1, 2013. Under the contract, she was available to provide support at the jail when needed. Nonetheless, Krahn was not contacted by Conmed to fill in for Hausler at the jail during the conference.

         While Hausler was attending the conference and the medical needs of the inmates at the jail were being delegated to EMTs, Brown began evidencing more abdominal distress early in the morning of November 18. He told a deputy (Hill) that he was in pain, had trouble sitting up, was observed holding his abdominal area, and stated he felt worse. Hill took Brown to the booking area in a wheelchair, and asserts that he reported his observations to EMT Morgan when he arrived later that morning (7:30 a.m.). Morgan, however, denies that he received any information about Brown that morning, although he states he saw Brown at about 10 a.m. and that Brown showed him some light orange colored urine in his toilet and asked if he was peeing blood.

         Morgan apparently diagnosed Brown as being dehydrated, and denied Brown's request to be released to go to the hospital because " nothing shows anything wrong." Although Morgan recorded a set of vital signs on his chart note of his interaction with Brown, a jail video of the encounter does not reflect Morgan taking Brown's vital signs.

         It is noteworthy that the day after Brown's death, Ms. Hausler made a late entry chart note in which she documented an alleged conversation with Morgan at approximately 7:30 a.m. on November 18th (while Hausler was in Nashville) regarding Brown's condition. Whether this conversation took place is disputed by other evidence in the case, including evidence that Morgan did not even meet with Brown until 10:15 a.m., phone records do not show any calls or text messages between Hausler and Morgan, and Morgan testified in his deposition that he didn't recall speaking to Hausler.

         On November 19, Morgan saw Brown early in the afternoon for a brief period. Brown informed Morgan he had a bowel movement during the night while sleeping. Morgan decided to send Brown back to general population (at the jail), telling him to drink plenty of water. In her belated chart note about this event, Hausler claims to also have had a conversation with Morgan about this Morgan-Brown interaction. That this contact occurred is disputed by plaintiff based on phone records and Morgan's recollection or lack thereof.

         On November 21, Nurse Stensland was scheduled to return to the jail for her weekly visit and Brown was on the call list to see her. She did not come in, however, nor did any substitute. Ms. Hausler subsequently related that Strensland's clinic visit was canceled because Hausler was away at the Nashville conference and "they like me to be there for clinic." That same day, Brown repeatedly asked when he could be seen by a doctor and if he could be released early because of his condition. At 2 p.m., Morgan spoke with Brown and gave him some medication for constipation. At 3 p.m., an inmate told a deputy (Valencia) that Brown needed medical help as he was vomiting blood. Valencia informed Morgan of this, who had Brown taken to the booking area for evaluation: Brown was unable to walk, and was transported to the booking area in a wheelchair, where he was examined by EMTs Morgan and DeLeon. Brown had dried blood on his lips and teeth, a distended abdomen, and indicated that he had pain on the left side of his chest. His skin had a yellowish tint to it. After his exam, Brown was placed in a holding cell for 30 minutes and, because Brown had only one day left to serve on his sentence, a deputy recommended to his supervisor that Brown be released and given a courtesy ride to the hospital. Morgan and DeLeon's chart notes reflect that it was decided that Brown would be released and given a ride to the hospital. There is evidence that there was some discussion of calling an ambulance but no ambulance was called (DeLeon could not recall the reason). Brown was officially released from custody at 3:50 p.m. Because deputies did not want to transport Brown in his jail uniform, and because of his condition, it took approximately another 20 minutes to dress him in his personal clothing and he was not transported from the jail until 4:14 p.m. He arrived at Coquille Valley Hospital at 4:16 p.m. (the hospital is a few blocks from the jail) and was escorted to the waiting room where he was left by a deputy. Brown died later that evening (10:14 p.m.) as a surgeon was preparing to operate following a CT scan and other testing "to explore his abdomen." An immediate post-mortem exploratory surgery identified the cause of death as "intraabdominal sepsis due to visceral perforation secondary to diodenal perforation that had been present for quite some time, ... at least several days. "

         B. Mortality and Morbidity Review Process

         On December 12, 2013 a Mortality and Morbidity (M & M) Review meeting was conducted by Conmed regarding the circumstances surrounding the death of Donnie Brown. The purpose of such a review, which is required in the event of an inmate death by Conmed's own policy and the National Commission on Correctional Health Care Standards for Jails, includes an evaluation of the facts and circumstances surrounding the event, the adequacy of policies, procedures, staffing, and responses to the inmate's medical condition, and whether changes, corrections, or improvements in any areas were warranted. Attendees at the meeting, either in person or by telephone, included Rich Rosenblatt, the Vice President, Chief Administrative Officer, and General Counsel of Conmed, Donald Rhodes M.D., Chief Medical Officer of Conmed, Nancy Raines RN, the Vice President of Operations in the Northwest for Conmed, Marjory Hausler, the Conmed HSA at the Coos County Jail, EMT James Morgan, Sheriff Craig Zanni, and Sergeant Darius Mede, the Jail Commander.

         Absent from the meeting was Dr. Steven Blum, the State Medical Director for Conmed and the titular on-site Medical Director for the Coos County Jail[5], and Nurse Practitioner Stensland, who had evaluated Brown on November 14, 2013.

         Prior to the meeting, Nurse Hausler had prepared a " Pre - M& M Report" which contained a medical history, a summary of the facts and circumstances of Brown's death, and a chart review summary in chronological sequence.

         There is evidence that the Hausler report contains significant and material omissions. For example, there is no mention in the report that Ms. Hausler was out of the area attending a conference from November 18-21 and that no replacement RN was assigned to the Jail in her absence, which resulted in EMT Morgan being the senior medical assistant on site during that period. There is also no reference in the report to the cancellation of Nurse Practitioner Stensland's clinic on the morning of November 21st, when she had been scheduled to see Inmate Brown. As noted previously, Stensland was not in attendance at the M &M meeting on December 12, 2013 (notwithstanding that Conmed's policy requires the attendance of "clinical staff members that provided direct care to the inmate.") The November 21st date is significant in that Brown's condition was deteriorating, he repeatedly asked to see a doctor, and his symptoms included vomiting blood. Despite these developments, the cancellation of Nurse Practitioner Stensland's clinic was not mentioned in Hausler's Pre-M & M report.

         After the M & M meeting, Hausler prepared a "Report and Recommendations Following M & M " which summarized the findings and recommendation from the review. There is evidence in the record before the court that this report also contains material false statements, including:

         "Patient never personally accessed or requested health care. "(Disputed by evidence that Brown repeatedly asked to see a doctor and/or go to the hospital.)

         "Observations of the patient's overall activities and behavior ... demonstrated an individual participating without difficulty in the normal daily activities of jail life." (Disputed by evidence that Brown was not eating his meals, had been reported as moaning in pain at night, and that other inmates had urged staff to have him examined by a doctor).

         "All Conmed and Coos County j ail policies were followed and adequate for the situation." (Disputed by evidence that there was no medical director or nurse on site.)

         "Staffing was adequate. Skill level of staff was appropriate." (Disputed by evidence that there was no medical director or nurse on site and skill level of staff was limited to EMTs.)

         The result of the M & M Review process was a finding that there were no factors leading to Brown's death that needed to be addressed through changes or adoption of policies, procedures, or training.

         C Coos County Contract with Conmed

         In pertinent part, Conmed's proposal in support of its application to provide health care services to Coos County specified that Conmed staffing would include a full-time on site Health Services Administrator [(HSA/Registered Nurse (RN)] who would have general responsibility for the successful delivery of health care services at the facility and Conmed would provide health care services coverage on a 24 hours/day, 7 days/week basis. Conmed further represented that a Medical Director/Physician would play a "key role" in the Medical Department and would play a continuous role in overseeing medical operations at the jail. Conmed specified that the Medical Director would be on site at the jail no less frequently than 2 hours/week for the direct delivery of healthcare services and treatments to inmates. In addition, the Conmed proposal promised that the Medical Director would have ultimate responsibility for supervision of all medical and clinical staff and supporting supervisory nursing personnel. These proposals were expressly incorporated into the contract when Coos County and Conmed entered into the agreement. The contract was renewed on July 1, 2013 and was in force during the period of Brown's incarceration. The renewal contract summary form specified that the Coos County officials responsible for the performance of the contract were Sheriff Craig Zanni and Sergeant Darius Mede


         A. Alleged Violations of the Eighth Amendment

         To state the obvious, a corrections facility has a constitutional obligation to provide adequate health care to inmates with serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976). And while ordinary negligence in failing to meet those needs is not actionable under § 1983, a showing of deliberate indifference on the part of corrections officials and/or the private sector caretakers they contractually engage to provide medical services will sustain such an action. See Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996).; West v. Atkins, 487 U.S. 42, 54 (1988). The proposal by Conmed to provide health care to inmates at the Coos County Jail on its face appears adequate to satisfy constitutional requirements. The contractual agreement envisioned an on-site physician (the Medical Director) who was to supervise all the Conmed medical staff at the facility (nurses and EMTs) and conduct regular visits (no less frequently than 2 hours/week), and a full time on-site Registered Nurse who was to function as the Health Services Administrator (HSA) . However, during critical events culminating in Brown's death while he was serving a term of imprisonment at Coos County Jail, there was no functioning Medical Director at the facility and the promised services from that position had not been meaningfully delivered during the period of his incarceration. Moreover, there was no nurse on-site as the HSA was attending a conference out of state, no arrangements had been made for a substitute to fill in during her absence, and Brown and the other inmates were having their health care needs addressed by EMTs who were neither licensed nor qualified to diagnose or treat any serious medical conditions. There is significant evidence in the record from which a jury could conclude that decisions to reduce the inmates' health care coverage to sub-standard levels far below contractual and constitutional obligations were deliberately made and demonstrated indifference to inmates', specifically Brown's, serious medical needs.

         There is also evidence before the court that, in the aftermath of Brown's death, his chart entries were altered to reflect the taking of vital signs which a jury could find had not been taken, and to reflect telephonic contact between the absentee HSA and EMT Morgan which a jury could find had also not occurred.

         Finally, a jury could conclude from the evidentiary record herein that the M & M Review process, which resulted in the ratification of the health care treatment of Brown as being in compliance with all appropriate Conmed policies and procedures, was tainted by the omission of material information and the submission of materially false information.

         I will now move from the above general overview and address evidence pertaining to particular defendants. All evidence previously cited is expressly incorporated in the following analysis:

         Marjory Hausler

         Brown was evaluated by Hausler of November 12, who referred him to NP Stensland for a further examination that was conducted on November 14. From her November 12 evaluation, the jury could conclude that she was aware that he presented with a serious medical condition (difficulty breathing and chest pain). Although plaintiff presents medical expert opinion in the record that Hausler's examination was deficient and did not comply with Nursing Assessment protocols, I do not find that this encounter standing alone is sufficient to support a "deliberate indifference" finding by the jury. It is, however, a factor that interconnects with Hausler's subsequent decision to travel to an out-of-state conference without procuring a replacement RN at the jail, thus delegating the health care needs of Brown and other inmates to staff EMTs (Morgan and DeLeon), who were not qualified to diagnose or treat him.[6] Hausler's explanation that she "trusted" the experience of EMTs is belied by regulatory and medical standards that clearly preclude EMTs' from performing the functions assigned to them in Hausler's absence. Under these circumstances a jury can reasonably infer that Hausler was deliberately indifferent to Brown's serious medical needs.

         Such an inference is also supportable by evidence in the record that Hausler made false entries in Brown's chart notes (i.e., telephonic contacts with Morgan), omitted material information in her pre- M & M Report (her absence without a replacement from the jail during the events culminating in Brown's death, the assignment of his medical care to EMTs, and the cancellation of Stensland's clinic), and falsified information in the Report and Recommendation following the M & M Review (i.e., patient never requested health care, staffing was adequate, skill level of staff was adequate). Where intent (such as deliberate indifference) is an element of a claim, fabricated documentation and falsehoods are classic indicators from which a jury may infer the requisite intent. See, e, g., Farmer v. Brennan, 511 U.S. 825, 842 (1994) (requisite knowledge of intent is a question of fact subject to demonstration in the usual ways including inference from circumstantial evidence); Hutchison v. United States, 838 F.2d 390, 394 (9th Cir. 1988); Garret v. Finander. 2016 WL 8135548, *5 (CD. CA. 2016). It is also noteworthy that the M & M proceeding is critical to assessing institutional procedures and ...

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