To Survive Summary Judgment Under 42 U.S.C. § 1983, Plaintiff's Eighth Amendment Deliberate Indifference Claim Requires an Initial Factual Showing of Defendants' Knowing or Wanton Negligence
In Leavitt v. Corr. Med. Serv. Inc., 645 F.3d 484 (1st Cir. 2011), the U.S. Court of Appeals for the First Circuit reviewed the decision of the U.S. District Court, District of Maine regarding a plaintiff's 42 U.S.C. § 1983 (2000) action alleging a violation of his Eighth Amendment rights for failure to provide treatment for his HIV infection. The lower court had granted summary judgment in favor of the defendant, Mr. Cichon, a family nurse practitioner who served as a health care services contractor for the county jail. The lower court had also granted summary judgment to various other health care providers at the Maine State Prison (Leavitt v. Corr. Med. Serv., 2010 U.S. Dist. LEXIS 18453 (D. Me., 2010)).
Facts of the Case
The plaintiff, Raymond Leavitt, was incarcerated in the Wayne County Jail (WCJ) for approximately six months, from September 6, 2006, through February 17, 2007, and was subsequently moved to the Maine state prison (MSP). On October 5, 2006, he was seen at WCJ by the family nurse practitioner, Alfred Cichon, who concluded that Mr. Leavitt's health was normal. Mr. Leavitt told Mr. Cichon that he was HIV positive and was experiencing symptoms of night sweats, chills, fever, nausea, and vomiting. He requested antiretroviral medications. Mr. Cichon informed Mr. Leavitt that he could not reinstate the drugs or refer him to an infectious disease expert without first obtaining his current CD4 cell count and viral load. Mr. Cichon allegedly told Mr. Leavitt that HIV medications would not be provided because of their expense, but would be provided when he was in prison. Mr. Cichon was also the president of the medical contract health care service organization at the WCJ and owned a quarter of its stock.
After the clinic visit, Mr. Cichon obtained Mr. Leavitt's medical records and laboratory results. Prior tests had shown an undetectable viral load (<75 copies/mL) and an abnormally low CD4 cell count (355 cells/μL of blood; normal range is 500 to 1,000 and treatment is considered below 350). However, laboratory reports from the initial evaluation in jail showed that Mr. Leavitt had an increased viral load of 143,000, a lower than normal CD4 cell count, and an increase in CD8 cell count, supporting an immunodeficiency state. In later testimony, Mr. Cichon claimed that he had no memory of seeing these results, but admitted that his initials were on the first page. He acknowledged that a viral load of 143,000 would have prompted him to refer Mr. Leavitt to an infectious disease specialist. Mr. Cichon never saw Mr. Leavitt again and did not follow up on his HIV condition.
On February 17, 2007, Mr. Leavitt was transferred to the Maine State Prison (MSP) where he received medical care by Correctional Medical Services (CMS). At his first clinical appointment, Mr. Leavitt stated that he was HIV positive and asked to resume antiretroviral treatment. Blood work revealed an abnormal CD4 cell count of 460 and an elevated viral load over 97,000. An immediate appointment with an infectious disease expert was ordered.
Mr. Leavitt had his first consultation in May 2007 by a team of HIV experts at the Virology Treatment Center (VTC). They sent a consultation report to CMS that reported that a CD4 cell count of 460 left Mr. Leavitt with adequate immunological reserve to protect against opportunistic infections or other complications of HIV. VTC's medical director thus postponed restarting antiretroviral treatment.
Subsequently, Mr. Leavitt's clinical condition declined, as he complained of rash, fatigue, thrush, leukoplakia, and dermatitis. He was not seen at the VTC, however, for 6 months. At that point, VTC reported that his immunologic condition had declined from HIV and that he met Department of Health and Human Services (DHHS) guidelines for starting antiviral therapy.
Treatment was still not initiated, however. The note from VTC was not initially requested. When it was received and reviewed, it recommended treatment with medications, but instead of treatment, updated bloodwork was performed. The viral load had escalated to 297,562 and the CD4 count had declined to 296. Treatment was not initiated despite further clinical decline, and Mr. Leavitt had an AIDS-defining illness with thrush on his tongue and swollen nodes in his neck.
Finally, Mr. Leavitt restarted antiretroviral therapy on July 7, 2008, a full seven months after VTC determined his eligibility under the DHHS guidelines. By December 2008, his CD4 cell count had rebounded to 550. In June 2009 Mr. Leavitt's HIV disease stabilized and he reached a healthy weight of 170 pounds. However, he still complained of worsening fatigue, warts, and rashes, and he expressed fear about his future risk of infections and cancer.
Mr. Leavitt filed his initial complaint against several defendants in the federal district court, claiming a violation of his Eighth Amendment rights under 42 U.S.C. § 1983 (Leavitt, 2010 U.S. Dist. LEXIS 18453). The defendants moved for a summary judgment, and hearings were held before a Federal Magistrate. At those hearings Mr. Leavitt's expert testified that the interruption of Mr. Leavitt's antiretroviral therapy from September 2006 to July 2008 constituted a “continuum of harm” that placed Mr. Leavitt at significantly greater risk for opportunistic infections and or cancer in the future. At the conclusion of the hearings, the Magistrate recommended that summary judgment be granted to all defendants. The district court granted summary judgment to all defendants, and Mr. Leavitt appealed the decision to the First Circuit Court of Appeals.
Ruling and Reasoning
Regarding Mr. Leavitt's claim alleging the defendants' deliberate indifference, the First Circuit Court of Appeals commented that HIV is a serious medical condition and that the condition could be life threatening if not properly treated (citing Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004) and Montgomery v. Pinchak, 294 F.3d 492, 500 (3d Cir. 2002)). The First Circuit noted that, in contextualizing the “serious medical need” prong, it was important to focus on Mr. Leavitt's case against Mr. Cichon regarding Mr. Cichon's failure to review and to follow up on the results of the viral load test. The court of appeals argued that it was undisputed that Mr. Cichon initialed Mr. Leavitt's 2006 CD4 report. Next, the court stated that a jury could infer that Mr. Cichon had a financial interest in not confirming Mr. Leavitt's imminent risk. In addition, the court contended that this oversight led to the worsening severity of Mr. Leavitt's short- and long-term medical status. It reasoned that a fact finder could conclude that Mr. Cichon's deprivation of care could lead to grave harm in the form of serious illness and unnecessary suffering in the future. This prospective harm could form the basis of an Eighth Amendment claim. Therefore, the court of appeals concluded that Mr. Leavitt had established a material factual dispute as to whether Mr. Cichon had acted with deliberate indifference.
Discussion
This case serves to illustrate how courts manage 42 U.S.C. 1983-based suits that allege that medical mismanagement constitutes a violation of the Eighth Amendment's protection against cruel and unusual punishment. To succeed in such claims, the plaintiff must show that the defendant's behavior went beyond mere negligence; instead, in these cases, plaintiffs face the much higher burden of having to prove actual wanton or deliberate indifference, which is a subjective state of mind of the defendant. This higher standard is in contrast to medical malpractice claims where the plaintiff need only show negligence and, by an objective standard of care, breach of that objective standard of care and harm to the plaintiff caused by that breach. The stringent threshold for liability under Eighth Amendment-based claims explains and provides an interesting contrast between the court's treatment of the various defendant-medical providers caring for Mr. Leavitt. For all defendants except Mr. Cichon, the court upheld the grant of summary judgment, notwithstanding that the medical care Mr. Leavitt received at the state prison was beset by errors that resulted in significant delays in treatment, even after Mr. Leavitt met the guidelines for initiation of treatment of his AIDS infection. The court noted that treatment had fallen short, but the various errors were insufficient to meet the stringent deliberate indifference standard. Those providers did not deliberately delay or prevent treatment.
While under the care of Mr. Cichon, Mr. Leavitt did not meet guidelines for reinstituting antiviral medication; he met those guidelines only after his condition had deteriorated in prison. However, Mr. Cichon allegedly made a statement about the expense of the medications, and thus he had a financial interest in keeping costs down. Further, there was evidence that he had seen the viral count from the laboratory that he testified would have prompted him to take further steps. These facts sufficiently raised the possibility that he had made a conscious decision to withhold treatment. This possibility created the need for a jury determination. The court also took detailed note of Mr. Cichon's history of licensure problems and the various disciplinary actions taken against him by the state's medical board. While not expressly relating their reinstatement of the claim against him to his past problems, the recitation of his past medical lapses makes the court's judgment all the more compelling.
Footnotes
Disclosures of financial or other potential conflicts of interest: None.
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