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finding no constitutional violation where prison officials checked blood lithium level two months later than the doctor had ordered
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Civ. No: 99-1936, Section "C" (4).
February 28, 2000.
ORDER AND REASONS
The plaintiff, John Gentry, a prisoner, filed suit against Charles Foti Jr. and John LeCour, claiming that the defendants were deliberately indifferent to his serious medical needs and seeking to recover damages. This matter proceeded to trial without a jury on February 3, 2000. The plaintiff participated by telephone. Linda Morin appeared on behalf of the defendants.
The plaintiff contends that he has taken Lithium for his manic depressive disorder since he was thirteen years old. However, Lithium is a drug which is potentially toxic thereby requiring medical monitoring. Gentry asserts that although his lithium level should have been monitored every sixty days, the medical unit of the Orleans Parish Prison (O.P.P.) failed to do so.
See Transcript p. 7.
In June 1998, the plaintiff was transferred to the O.P.P. from the House of Detention. The evidence shows that Gentry first saw a psychiatrist at the O.P.P. in August 1998. Gentry testified that the doctor ordered blood monitoring during this visit.
See Transcript pp. 5-6.
See Transcript p. 6.
On October 14, 1998, Gentry filed a grievance alleging that the O.P.P. failed to provide him with the blood monitoring treatment he needed as a result of his medical condition, Gentry requested to be placed on a priority transfer list.
See Grievance Form 252951.
The Warden, J. LeCour, reviewed the grievance form, determined that it had merit and assigned the complaint to the medial unit at the O.P.P. on October 28, 1998. On November 6, 1998, J. Taylor, the Q.A. Nurse, acknowledged receiving the complaint and advised the plaintiff that he was scheduled to see the psychiatrist. However, the lithium blood level test was not administered.
See Grievance Form 252951.
On November 25, 1999, Gentry was advised that the prison was considering his request to be moved to the Department of Corrections. Thereafter, Gentry completed a step three form to complain that he had not visited with the psychiatrist since August 1988. Chief Michael Geerken at the O.P.P. responded to Gentry's complaint on December 6, 1998, noting that Gentry had visited with a psychiatrist in August and September 1998.
Gentry submitted an additional grievance form on January 20, 1999, claiming that he saw the doctor in mid-December and that the doctor ordered the medical staff to monitor his blood level. However, the staff failed to do so until February 2, 1999.
Warden M. Andrade responded that the complaint was not a grievance but a request for service. The warden thereafter advised Gentry that as a Department of Corrections inmate he was placed on the transfer list.
The medical records, which have been admitted into evidence, contain Lithium blood level tests which were administered to Gentry prior to his transfer to the O.P.P. They also show that SmithKline Beecham reported on June 11, 1998 that a Lithium blood level test was done on Gentry which showed that his blood level was within the acceptable range. It also noted that the reference range is 0.5-1.3 and that anything greater than 1.5 is potentially toxic.
See Smith Kline Beecham Lab report of June 13, 1998.
Gentry testified that the medical staff at the O.P.P. did not test his blood level until February 2, 1999. Just over one month later, on March 26, 1999, his blood level was toxic. Gentry contends that he became toxic because of the defendants failure to properly monitor his blood level.
See Transcript p. 7.
During the trial, the defendants called Nurse Robert Gates, an expert in psychiatric nursing. Nurse Gates conceded that Lithium could affect Gentry's blood level and that in his opinion the blood plasma level should be check every three to six months. He further testified that some doctors take the blood level only once a year. Gates confirmed that on March 26, 1999, Gentry's Lithium level was 2.3 which would be in the toxic range.
Ms. Sharlana Wilson, the nurse supervisor at the O.P.P., testified that in February 1999 a blood level was taken of Mr. Gentry. On this occasion his level was 0.3. Nurse Wilson also testified that the doctor did not think a test was necessary before December 1998. Nurse Wilson testified that she did not know why the test was not administered until February 1999. After the February test, Gentry's Lithium level was drawn on March 26, 1999 because Gentry was complaining of lithium toxicity. Upon examination, Nurse Wilson concluded that his vital signs were normal, but that his Lithium level was high. After drawing a Lithium blood level, Gentry was transported to Charity.
A Lithium level was again ordered in May 1999. On this occasion, his level was 0.3.
In June 1999, Gentry was ordered to discontinue the use of lithium. Gentry again went to the medical clinic complaining of nausea, vomiting and dizziness. On this occasion his Lithium level was 1.37. Thereafter, a new medication was prescribed. I. The Deliberate Indifference Standard .
See Transcript p. 35.
Prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement. They must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must protect prisoners from violence at the hands of other prisoners. However, a constitutional violation occurs only where the deprivation alleged is objectively, "sufficiently serious," and the official has acted with "deliberate indifference" to the inmate's health or safety. See Wilson v. Seither, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)
"Deliberate indifference" entails something more than negligence, but is satisfied by something less than acts or omissions meant for the purpose of causing harm or with knowledge that harm will result. Thus, it is the equivalent of acting recklessly. However, this does not establish the level of culpability deliberate indifference entails, for the term recklessness is not self-defining and can take a subjective or objective form. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). See also Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998).
Therefore, although inadequate medical treatment may, at a certain point, rise to the level of a constitutional violation, malpractice or negligent care does not. Medonza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993) (holding that negligent medical treatment is not a cognizable basis upon which to predicate a section 1983 action); Williams v. Treen, 671 F.2d 892, 901 (5th Cir. 1982) (holding that mere negligence in giving or failing to supply medical treatment would not support an action under Section 1983). See also Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989). Deliberate indifference encompasses only the unnecessary and wanton infliction of pain repugnant to the conscience of mankind." McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). See also Bradley, 157 F.3d at 1025.
II. The Medical Treatment .
Gentry complains that the medical unit at O.P.P. failed to administer a lithium blood level test as ordered by the doctor in August and December 1998. He contends that as a result, he suffered with toxic blood levels in March 1999.
However, Gentry is incorrect when he contends that the doctor ordered a lithium blood level test for him in August 1998. The medical records show that the first Lithium blood level was ordered in December 1998, even though at that time Gentry had been housed at the O.P.P. for seven months.
The record further shows that the medical unit did not administer the Lithium level as requested in December 1998. The first Lithium level was taken on February 2, 1999. On this date, Gentry's blood level was within range.
A difference of opinion that his Lithium level should have been taken in August instead does not state a claim for deliberate indifference pursuant to the Eighth Amendment. While Gentry's complaint could be construed as one involving negligence in the timely administration of the December Lithium blood level test, "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss or injury to life, liberty or property." Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 677, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). For the reasons assigned herein, the court finds in favor of the defendants and against the plaintiff, DISMISSING ALL CLAIMS WITH PREJUDICE.
Mere disagreement with treatment does not state a claim for relief under Section 1983. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); see Mendoza, 989 F.2d at 193 (prisoner's disagreement with the type or timing of medical services provided cannot support a Section 1983 claim).
New Orleans, Louisiana, this 28 day of February 2000.