Adams Ex Rel. Adams v. Poag

United States Court of Appeals,

Eleventh Circuit.

No. 94-8666.

Jack R. ADAMS, as Parent and next of kin of Michael David Adams,
deceased and Carolyn W. Adams, as Parent and next of kin of Michael
David Adams, deceased, Plaintiffs-Appellees,

v.

Joyce H. POAG, Dr., Individually, Grant P. Carmichael, Dr.,
Terrence M. Martin, Physical Assistant, Individually, Marie Cody,
RN, Individually, Defendants-Appellants,

Barbara Lewis, RN, Individually, et al., Defendants.

Aug. 28, 1995.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 90-252-3-MAC(DF), Duross Fitzpatrick,
Chief Judge.

Before HATCHETT, Circuit Judge, CLARK, Senior Circuit Judge, and
YOUNG*, Senior District Judge.

HATCHETT, Circuit Judge:

Appellees, Jack and Carolyn Adams, parents of deceased inmate,

Michael Adams, filed this 42 U.S.C. § 1983 action against

appellants, members of a prison's medical staff, alleging that the

appellants' medical treatment of their son constituted deliberate

indifference to his serious asthma condition in violation of the

Eighth Amendment. The district court denied the appellants'

motions for summary judgment based on qualified immunity. We

reverse.

FACTS

Because all issues in this case are so fact specific, we

recite the facts in great detail. Michael Adams began serving a

*
Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
prison sentence in the Bostick (Georgia) Correctional Institution

(Bostick) on September 15, 1989. Bostick and Rivers Correctional

Institution (Rivers) are part of the Middle Georgia Correctional

Complex (MGCC). Bostick does not contain an infirmary or infirmary

beds; but, it does have a sick-call station. Rivers has an

infirmary. Correctional Medical Systems, Inc. (CMS) provided

professional medical services to MGCC pursuant to a contract with

the Department of Corrections of the State of Georgia. The

contract required CMS to provide a medical director to perform

administrative duties at MGCC. CMS employed appellant, Dr. Grant

Carmichael, as its medical director at MGCC during the relevant

time period. Dr. Carmichael also provided clinical services at

MGCC pursuant to an independent contractor agreement with CMS.

Appellant, Dr. Joyce Poag, served as a part-time physician at

Bostick pursuant to an independent contractor agreement with CMS.

Appellants, Terrence Martin, a physician's assistant, and Marie

Cody, a registered nurse, were employees of CMS assigned to MGCC.

Upon his arrival at Bostick, Adams, a lifelong asthma sufferer,

reported this condition to the nurse who conducted his initial

medical screening examination. The examining nurse did not detect

any asthma symptoms. Additionally, the inmate physical profile

Bostick medical staff prepared noted that Adams suffered from

chronic asthma and that he had recently been hospitalized for a

severe asthma attack. Dr. Poag initialed the inmate profile.

On September 16, 1989, Adams twice complained of having an

asthma attack. In response to Adams's first complaint, the duty

nurse consulted Dr. Poag in a telephone conversation. Dr. Poag
ordered that Adams be administered an asthma treatment,

Theophylline Elixir. Later that night, Adams complained to Nurse

Cody of being unable to breathe. After consulting with Dr. Poag in

a telephone conversation, Nurse Cody gave Adams Theophylline Elixir

in compliance with Dr. Poag's orders. On September 17, 1989, at

2:30 a.m., Adams complained of an asthma attack to the duty nurse.

The nurse noted that he was wheezing and had labored breathing with

shortness of breath. Dr. Poag again, in a telephone conversation,

ordered Adams be given Theophylline Elixir. Dr. Poag conducted her

first personal examination of Adams on September 18. Dr. Poag

noted wheezing and a rapid heart rate. She diagnosed acute asthma.

Dr. Poag also noted that Adams's initial medical screening

examination stated that he had been taking Theodur and Marax as

asthma medications prior to his incarceration. Dr. Poag ordered

Marax tablets, Theophylline Elixir, and ordered Adams transferred

to the Rivers infirmary.

On September 18, Adams arrived at Rivers and remained in the

infirmary through the following day. During his stay at Rivers,

medical personnel did not notice any respiratory distress. Medical

personnel checked his blood for Theophylline level. On September

19, Dr. Carmichael, without personally examining Adams, ordered

discontinuation of Marax, and prescribed nebulizer treatments as a

replacement. After receiving nebulizer treatments for two days at

Rivers, Adams went back to Bostick.

On September 21, Adams complained to the duty nurse that he

was "still having problems with asthma," and also requested Marax.

Adams was not treated on this occasion though his chart was
referred to a physician. On September 22 at 6:10 a.m., Adams again

complained of asthma problems and requested Marax. The duty nurse

noted that Adams was wheezing, was rambling in conversation, and

had a hostile attitude. He was not in acute distress. The duty

nurse also scheduled Adams for a chest x-ray that morning; the

chest x-ray showed no significant abnormality of the chest or

lungs. The duty nurse then consulted with Dr. Poag, and no

additional treatment was given. On September 25 at 12:25 a.m.,

Adams complained that he could feel an asthma attack coming on.

The duty nurse did not note any wheezing and found his lungs were

clear; therefore, he was not given any treatment. At 8 a.m. on

September 25, Adams again complained that he was experiencing

difficulty breathing. The duty nurse did not detect any acute

distress; therefore, no treatment was given. The duty nurse did,

however, schedule Adams for an appointment to see a physician on

September 28, 1989. On September 28 at 1:15 a.m., Adams again went

to the nurse's station at Bostick complaining of asthma. The duty

nurse noted some mild symptoms of asthma and gave Adams

Theophylline Elixir. At 2 p.m. that same day, Dr. Poag examined

Adams and detected mild wheezing. She also noted that he suffered

a slight asthma attack approximately once a week. Dr. Poag added

Brethine to Adams's treatment plan and referred him to the medical

clinic to determine if any allergy medications were needed. In her

deposition, Dr. Poag testified that Brethine is a comparable

medicine to Marax.

On September 29, 1989, at 10:30 p.m., Adams again went to the

nurse's station at Bostick complaining of difficulty in breathing.
Nurse Cody saw him and noted no wheezing or cyanosis in his lips or

fingernails. Nurse Cody noted that Adams was not in acute distress

and did not provide him any additional medication because he had

been administered his medications one hour earlier. On October 2,

1989, Adams again complained to the duty nurse that he could not

breathe. The nurse noted slight wheezing and slightly labored

breathing. The nurse did not detect cyanosis. On the order of Dr.

Carmichael, Adams was given Theophylline Elixir and a nebulizer

treatment. Adams's medical records state that he tolerated the

nebulizer treatment well. At 7:30 that night, Adams again

complained of an inability to breathe. The duty nurse did not

detect any cyanosis, wheezing, or distress; however, Adams was

given Theophylline Elixir.

On October 3 at 2:10 a.m., Adams again complained to Nurse

Cody that he could not breathe. Nurse Cody listened to his lungs

and noted that his lungs were clear, that he had good air return,

and was not displaying any signs of distress. Adams was returned

to his dormitory without medication. At 8 a.m. that day, Adams

complained of being on the verge of a severe asthma attack. He

complained of soreness of the throat and neck and of pain in the

chest. He also stated that he was not responding to the medication

that he was receiving. The nurse on duty did not note any acute

distress and determined that no treatment was necessary. At 9:10

a.m., a physician's assistant examined Adams and noted wheezing in

Adams's left lung; therefore, he administered an inhaler to Adams.

When Adams began coughing and hyperventilating during the exam, the

physician's assistant also ordered a Theophylline blood level
check. Upon receipt of the results of the blood check, the

physician's assistant ordered an increase in Adams's medication and

scheduled him for a follow-up medical examination one week later.

On October 4 at 8:30 p.m., another physician's assistant saw Adams

and noted that Adams was having acute bronchial spasms and

wheezing. The physician's assistant ordered Adams be given two

different asthma treatments, Theophylline and Decadron. On October

5, Adams complained of a sore throat and a runny nose and was

administered Actifed on the orders of Dr. Poag.

On October 7 at 9:40 a.m., Adams again complained that his

asthma was causing breathing problems. The duty nurse noted that

his chest was tight and that he was experiencing wheezing in both

lungs. The duty nurse also notified Physician Assistant Martin,

who was at Rivers, of Adams's condition. Physician Assistant

Martin ordered Adams transferred to the Rivers infirmary for

nebulizer treatment. Martin examined Adams at the Rivers

infirmary, and observed that Adams seemed to be moving adequate

air. Adams received the nebulizer treatment, and his medical

record states that he tolerated the treatment well. Adams was then

returned to Bostick. At 5:50 p.m. that evening, Adams returned to

the nurse's station at Bostick complaining of breathing problems.

Adams was again taken to Rivers infirmary where his blood was drawn

for a Theophylline level check, and he was given a nebulizer

treatment. During the next four hours, Adams complained at least

twice that the treatment he was receiving was not working. The

nurses noted that he was in no acute distress. The nurse also

stated in Adams's medical records that no more medications were to
be given until the results of his Theophylline level check results

were known. At 11:50 p.m., Adams requested to see a nurse. When

the nurse arrived, Adams again complained of an inability to

breathe and the nurse told him that he could receive no further

treatment until the results of his blood tests were known.

At 1:55 a.m. on October 8, Adams again complained of an

inability to breathe. The nurse noted that he was hyperventilating

and that his skin tone was flushed although he was not sweating.

The nurse also telephoned Physician Assistant Martin, who was

treating a patient at another MGCC facility, and notified him of

Adams's condition. Martin prescribed a nebulizer treatment and

instructed the nurse to continue to observe Adams. At 3:30 a.m.,

the duty nurse found Adams banging on the door of the Rivers

Infirmary. He was lying on the floor and complaining of an

inability to breathe. The nurse noted that he was sweating

profusely, was suffering from a shortness of breathe, and labored

breathing. The nurse notified Physician Assistant Martin who drove

to Rivers to examine Adams. The last treatment note in Adams's

file states that Adams continued to have breathing problems even

with medical treatment and ordered Adams transferred to the

outpatient clinic for further evaluation. Physician's Assistant

Martin made this entry and accompanied Adams to the hospital. When

Adams arrived at the outpatient clinic, he had no respiration or

pulse. He was declared dead of acute respiratory failure at 5:05

a.m. on October 8, 1989.

PROCEDURAL HISTORY

On October 3, 1990, appellees, Jack and Carolyn Adams, as
parents and next of kin of Michael Adams, filed an action pursuant

to 42 U.S.C. § 1983 in United States District Court for the Middle
1
District of Georgia. On August 29, 1990, the district court

referred the case to a magistrate judge for the conduct of

proceedings in accordance with 28 U.S.C. § 636. In June 1992,

appellants moved for summary judgment asserting qualified immunity.

On February 18, 1994, the magistrate judge recommended that the

appellants' summary judgment motion be denied. The magistrate

judge concluded that genuine issues of material fact existed

concerning whether the appellants' treatment of Adams amounted to

deliberate indifference to his serious medical needs. In May 1994,

the district court adopted the magistrate judge's recommendation

and denied appellants' motion for summary judgment. Appellants

filed a timely notice of appeal.

ISSUE

The sole issue raised on this appeal is whether the district

court properly denied the appellants qualified immunity.

CONTENTIONS

The appellants contend they did not violate clearly

established law because this court's prior case law establishes

that treating an inmate's serious asthma in a manner similar to the

treatment rendered to Adams, does not constitute deliberate

indifference to an inmate's serious medical needs. They also argue

1
In addition to the appellants, the complaint named various
officials of the Department of Corrections of the State of
Georgia and members of the medical staff at MGCC. Those other
defendants were either voluntarily dismissed or were granted
summary judgment. Appellees do not appeal the grants of summary
judgment.
that their actions in treating Adams did not violate contemporary

standards of the medical profession. They buttress this assertion,

pointing out that the parties to this action submitted conflicting

medical expert testimony as to the appropriate method of treating

Adams's condition. These conflicting affidavits, they argue,

demonstrate the absence of a single prevailing standard in the

medical community regarding the appropriate means of treating

severe asthma. Therefore, their actions cannot be found to have

constituted a violation of contemporary standards of the medical

profession. Appellants also argue that if they are not entitled to

qualified immunity, they are entitled to summary judgment on the

merits because their actions did not amount to deliberate

indifference to Adams's serious medical needs.

The appellees contend that the appellants were deliberately

indifferent to Adams's serious medical needs because reasonable

health care professionals in the appellants' positions would have

recognized that Adams's course of treatment was inadequate and that

Adams required stronger medication. Appellees further contend that

the appellants' argument that they merely applied the wrong

medication is meritless. They point out that when Adams arrived at

Bostick, he notified the medical staff that he had suffered a

severe asthma attack about a week earlier. He also told them that

Marax effectively treated his condition. The appellants, however,

substituted other medications and did not follow-up to determine if

these medications or treatments were effective. Moreover, the

appellants acted with deliberate indifference through their failure

to use sound medical judgment to examine, diagnose, and treat
Adams.

DISCUSSION

We review the district court's ruling on a motion for summary

judgment de novo and apply the same standards as those controlling

the district court. Canadyne-Georgia Corp. v. Continental Ins.

Co., 999 F.2d 1547, 1554 (11th Cir.1993). Summary judgment is

proper pursuant to Federal Rules of Civil Procedure 56(c) "if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265

(1986). Moreover, in deciding whether the district court erred, we

review the evidence in a light most favorable to, and with all

reasonable inferences drawn in favor of, the nonmoving party. See

Greason v. Kemp, 891 F.2d 829, 831 (11th Cir.1990).

Qualified immunity insulates government actors, in their

individual capacities, from civil lawsuits as long as the

challenged discretionary conduct does not violate clearly

established federal statutory or constitutional rights. Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396

(1982); Lassiter v. Alabama A & M University Bd. of Trustees, 28

F.3d 1146, 1149 (11th Cir.1994) (en banc ).2 In order for the

right to be clearly established such that qualified immunity will

2
Although the appellants are not public employees in the
strict sense of the term. Where a function that traditionally
falls within the exclusive purview of a state entity is delegated
to a private entity, state action is present. See Ancata v.
Prison Health Services, Inc., 769 F.2d 700 (11th Cir.1985).
not apply, the right must have been sufficiently established that

"in light of preexisting law the unlawfulness [of the government

actor's conduct] must be apparent." Anderson v. Creighton, 483

U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987);

Lassiter, 28 F.3d at 1149. The objective legal reasonableness of

the government actor's conduct is the touchstone of the inquiry

into whether qualified immunity is applicable. Lassiter, 28 F.3d

at 1150. A government actor can be stripped of qualified immunity

only when all reasonable government actors in the defendant's place

would know that the challenged discretionary conduct violates

federal law. Lassiter, 28 F.3d at 1150. Consequently, qualified

immunity protects "all [governmental actors] but the plainly

incompetent or those who knowingly violate the law." Malley v.

Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271

(1986).

In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d

251 (1976), the Supreme Court held that the Eighth Amendment

proscription against cruel and unusual punishment prevents prison

personnel from subjecting an inmate to "acts or omissions

sufficiently harmful to evidence deliberate indifference to serious
3
medical needs." 429 U.S. at 106. The Court recognized the

government's obligation to provide medical care for inmates: "An

inmate must rely on prison authorities to treat his medical needs;

if the authorities fail to do so, those needs will not be met."

Estelle, 429 U.S. at 103, 97 S.Ct. at 290. The state, therefore,

3
The Eighth Amendment provides: "Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted." U.S. Const. amend. VIII.
has an obligation to provide adequate medical care to those whom it

has incarcerated. Estelle, 429 U.S. at 103, 97 S.Ct. at 290. The

Court cautioned, however, that not every allegation of inadequate

medical treatment states a constitutional violation. Estelle, 429

U.S. at 105, 97 S.Ct. at 291-92. Mere negligence in diagnosing or

treating a medical condition is an insufficient basis for grounding

liability on a claim of medical mistreatment under the Eighth

Amendment. Estelle, 429 U.S. at 106, 97 S.Ct. at 292.

Our analysis of a claim of deliberate indifference to a

prisoner's serious medical needs has two components: whether

evidence of a serious medical need exists; if so, whether the

defendants' response to that need amounted to deliberate

indifference. Mandel v. Doe, 888 F.2d 783, 788 (11th Cir.1989).

The appellants do not dispute the severity of Adams's medical

needs. Moreover, our review of the record clearly demonstrates

that Adams's asthma constituted a serious medical need. The

parties disagree, however, over whether the medical treatment

administered to Adams constituted deliberate indifference.

In order for appellants to be stripped of qualified immunity,

the appellees must demonstrate that the appellants' actions in

treating Adams's asthma violated a clear and specific standard and

that similarly situated reasonable health care providers would have

known that their actions violated Adams's constitutional right.

Howell v. Evans, 922 F.2d 712, 719 (11th Cir.1991), vacated, 931

F.2d 711 (11th Cir.1991), reinstated by unpublished order (June 24,

1991), cited in Howell v. Burden, 12 F.3d 190, 191 n. * (11th

Cir.1994). In a medical treatment case, a plaintiff may
demonstrate the existence of a clearly established medical standard

either through reference to prior court decisions or to the

contemporary standards and opinions of the medical profession.

Howell, 922 F.2d at 719 (citations omitted). Plaintiffs frequently

resort to the contemporary standards of the medical profession when

the challenged action required the exercise of medical judgment.

Howell, 922 F.2d at 719-20. In such an instance, a plaintiff may

produce opinions of medical experts asserting that the inmate's

treatment was so grossly contrary to accepted medical practices as

to amount to deliberate indifference. Howell, 922 F.2d at 720.

Although this inquiry may sound in medical malpractice, a plaintiff

must demonstrate more than mere negligence in order to assert an

Eighth Amendment violation. Estelle, 429 U.S. at 106, 97 S.Ct. at

292. "[I]t is obduracy and wantonness, not inadvertence or error

in good faith," that violates the Eighth Amendment in "supplying

medical needs." Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct.

1078, 1084, 89 L.Ed.2d 251 (1986).

Our cases have consistently held that knowledge of the need

for medical care and an intentional refusal to provide that care

constitutes deliberate indifference. Carswell v. Bay County, 854

F.2d 454, 457 (11th Cir.1988); Ancata v. Prison Health Services,

Inc., 769 F.2d 700, 704 (11th Cir.1985). Medical treatment that is

"so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness"

constitutes deliberate indifference. Rogers v. Evans, 792 F.2d

1052, 1058 (11th Cir.1986). "A doctors's decision to take an

easier and less efficacious course of treatment" also constitutes
deliberate indifferent. Waldrop v. Evans, 871 F.2d 1030, 1033

(11th Cir.1989). Additionally, when the need for medical treatment

is obvious, medical care that is so cursory as to amount to no

treatment at all may constitute deliberate indifference. See

Ancata, 769 F.2d at 704. Also, delay in access to medical care

that is "tantamount to "unnecessary and wanton infliction of pain,'

" may constitute deliberate indifference to a prisoner's serious

medical needs. Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.)

(per curiam) (quoting Estelle, 429 U.S. at 104, 97 S.Ct. at 291),

cert. denied, 496 U.S. 928, 110 S.Ct. 2624, 110 L.Ed.2d 645 (1990).

Some delay in rendering medical treatment may be tolerable

depending on the nature of the medical need and the reason for the

delay. Harris v. Coweta County, 21 F.3d 388, 393-94 (11th

Cir.1994). We must apply these standards in order to determine

whether the appellants' actions violated Adams's clearly

established constitutional right. See Waldrop, 871 F.2d at 1034

(evaluating challenged discretionary conduct individually because

deliberate indifference inquiry is fact-specific).

Dr. Carmichael

Supervisory personnel such as Dr. Carmichael cannot be held

liable under section 1983 for the actions of their subordinates

under a theory of respondeat superior. Monell v. Department of

Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d

611 (1978); Greason v. Kemp, 891 F.2d 829, 836 (11th Cir.1990).

The appellees may, however, impose liability on Dr. Carmichael if

they can demonstrate that he either personally participated in the

acts comprising the alleged constitutional violation or instigated
or adopted a policy that violated Adams's constitutional rights.

See Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176,

1192 (11th Cir.1994).

We apply a three-prong test to determine a supervisor's

liability: (1) whether the supervisor's failure to adequately

train and supervise subordinates constituted deliberate

indifference to an inmate's medical needs: (2) whether a

reasonable person in the supervisor's position would understand

that the failure to train and supervise constituted deliberate

indifference; and (3) whether the supervisor's conduct was

causally related to the subordinate's constitutional violation.

Greason, 891 F.2d at 837. The appellees assert that Dr.

Carmichael, in his capacity as medical director of MGCC, failed to

implement proper procedures that would have ensured that Adams

received adequate medical treatment; that the absence of such

procedures constituted deliberate indifference to Adam's medical

needs; and that the lack of such procedures was causally related

to Adams's death. They also argue that Dr. Carmichael personally

treated Adams on at least two occasions and failed to adequately

provide the necessary care and treatment. Specifically, the

appellees argue that after Dr. Carmichael discontinued Dr. Poag's

order for Marax and prescribed an alternative medication to treat

Adams, he had an obligation to conduct a follow-up inquiry in order

to determine whether the alternative medication was adequately

treating Adams's condition.

In an affidavit accompanying his motion for summary judgment,

Dr. Carmichael avers that the only actions he took with respect to
Adams's medical treatment were discontinuing Dr. Poag's request for

Marax, and an October 2, 1989 consulting with a duty nurse

regarding Adams's treatment. After discontinuing Marax, Dr.

Carmichael ordered Adams treated with nebulizer treatments, as

needed. In his affidavit, he characterizes Marax as "an outdated

asthma medication which also contains a valium-type relaxant." Dr.

Carmichael also avers that the narcotic-like effects of Marax make

it unsuitable for use in the prison setting; therefore, it was not

stocked in the prison pharmacy. Lastly, he asserts that final

authority for determining which medications are stocked in the

prison infirmary rests with the Department of Corrections of the

State of Georgia. Dr. Carmichael's affidavit also asserts that the

substitute medications Adams was receiving, Brethine, Alupent

medication, and nebulizer treatments, were adequate substitutes for

Marax.

The appellees submitted deposition testimony and an affidavit

of Dr. Robert DiBenedetto, a pulmonary medicine specialist. Dr.

DiBenedetto's opinion regarding the adequacy of the medical

treatment that Adams received can be summed up by the following

excerpt from his deposition:

The way you treat a bad asthma attack and worsening asthma is
in the hospital, intravenous corticosteroids; and that is the
major treatment nowadays, and this fellow [Adams] had a very
short course and actually worsening while on them because he
was given oral steroids in inadequate doses when he should
have been getting intravenous steroids.

The magistrate judge characterized the dispute in this case as

concerning the appropriateness of the treatment that was given

rather than whether certain treatment was given at all. The quoted

passage from Dr. DiBenedetto's deposition demonstrates that the
magistrate judge properly perceived the issue in this case. We

must, however, reverse the district court's denial of summary

judgment as to Dr. Carmichael because, as Estelle teaches, the

question of whether governmental actors should have employed

additional diagnostic techniques or forms of treatment "is a

classic example of a matter for medical judgment" and therefore not

an appropriate basis for grounding liability under the Eighth

Amendment. Estelle, 429 U.S. at 107, 97 S.Ct. at 293. Dr.

DiBenedetto's affidavit and deposition are helpful for what they do

not say. Dr. DiBenedetto does not take issue with Dr. Carmichael's

assertion that Brethine, Alupent medication, and nebulizer

treatments are appropriate medications for treating severe asthma.

Instead, he characterizes intravenous steroids as the "major

treatment" for severe asthma. Thus, we may infer the existence of

other asthma treatments whose efficacy matches intravenous

steroids. Of course, this is precisely Dr. Carmichael's

contention, and Dr. DiBenedetto's deposition concedes as much when

he notes that Adams was "given oral steroids in inadequate doses."

Implicit in this statement is the assertion that an "adequate"

dosage of the medication Adams was receiving may have properly

treated his condition. To the extent that Dr. DiBenedetto's expert

testimony supports the appellees' assertion that Adams was

administered inadequate doses of asthma medication, their claim

sounds in medical negligence and is an inappropriate basis for

attaching section 1983 liability. See Estelle, 429 U.S. at 107, 97

S.Ct. at 292-93.

Dr. Carmichael may also be liable to the appellees if he
personally implemented or adopted a policy that violated Adams's

constitutional rights. We understand appellee's argument to be

that it should have been apparent to Bostick's medical staff that

the treatment Adams was receiving was ill-suited to the severity of

his condition and that Dr. Carmichael, failed to institute a

procedure that would have alerted the medical staff to that fact.

In his affidavit, Dr. Carmichael states that "it is the practice

and procedure of the medical departments at Bostick C.I. and Rivers

C.I. to make notations in the medical files immediately following

or as soon as possible after any evaluation, diagnosis, treatment,

or review of an inmate's medical condition." The appellees have

not alleged that this procedure evidences a deliberate indifference

to Adams's or any other inmate's serious medical needs, nor have

they asserted that this procedure contravenes contemporary

standards of the medical profession. In fact, we may infer that

the procedures described in Dr. Carmichael's affidavit would

facilitate continuity in the medical care and treatment of MGCC

inmates. Finally, the appellees do not contend that the medical

staff at Bostick had a history of failing to recognize the

progressively deteriorating conditions of its ill inmates such that

Dr. Carmichael would be on notice that the procedures in place

amounted to deliberate indifference to the inmate's serious medical

needs. See Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th

Cir.1985) (finding supervisory liability on a claim of deliberate

indifference to pre-trial detainee's serious medical needs where

supervisor had received repeated complaints of inadequate staffing

and failed to take action).
 We hold that MGCC procedures for tracking the medical progress

of inmates does not constitute deliberate indifference, nor did Dr.

Carmichael's personal involvement in Adams's medical care

constitute deliberate indifference. Accordingly, we reverse the

district court's denial of qualified immunity as to Dr. Carmichael.

Dr. Poag

Dr. Poag served as a part-time physician at Bostick. Her

treatment of Adams began on September 16 and 17, 1989. On both of

those days, she received telephone calls from Bostick's duty nurse

seeking advice on Adams's treatment. On both occasions, she

prescribed Theophylline Elixir. Dr. Poag personally examined Adams

on September 18, 1989, and as a result of that examination,

prescribed Marax and ordered Adams transferred to the Rivers

infirmary. Bostick's duty nurse also telephoned her on September

22, 1989, and following consultation, Dr. Poag decided that no

additional treatment was needed at that time. Dr. Poag personally

examined Adams on September 28, 1989. On that occasion, she added

the medication Brethine to the course of treatment, and referred

Adams to the medical clinic to determine if allergy medications

were needed. In her deposition, Dr. Poag testified that Brethine

is a comparable medicine to Marax. Dr. Poag's final involvement

with Adam's treatment occurred on October 5, 1989, when the Bostick

duty nurse called on the telephone and Dr. Poag ordered the nurse

to administer medication to Adams.

In his deposition testimony, the appellees' expert, Dr.

DiBenedetto, concedes that Dr. Poag's course of treating Adams

"seemed to be adequate." He states, however, that the treatment
she rendered was inadequate because "there should have been some

follow-up in three or four days when he [Adams] indeed was getting

very bad." He also stated that Dr. Poag should have performed

pulmonary function studies.

In Howell v. Evans, the widow of a prison inmate who died from

severe asthma sought to impose section 1983 liability on one of the

decedent's treating physicians. The plaintiff did not contend,

however, that the treatment rendered by the physician was

inappropriate at the time. Instead, the plaintiff asserted that as

the decedent's condition worsened, a stronger course of treatment

was required; that the physician should have known that the

decedent's condition required close attention and could deteriorate

at any moment; and, that the treating physician's failure to

closely monitor the decedent constituted deliberate indifference.

The court, however, rejected the plaintiff's claim on the grounds

that none of the allegations satisfied the criteria for deliberate

indifference. Howell, 922 F.2d at 721. At most, the appellees'

allegation against Dr. Poag is that she did not diligently pursue

alternative means of treating Adams's condition. In Howell,

however, the court held that such an allegation did not "rise

beyond negligence to the level of a refusal to treat as outlined by

Estelle." Howell, 922 F.2d at 721. As the court noted in Howell:

"Estelle requires, however not merely the knowledge of a condition,

but the knowledge of necessary treatment coupled with a refusal to

treat properly or a delay in such treatment." Howell, 922 F.2d at

721. As was the case inHowell, we are unable to conclude that the

appellees' allegations against Dr. Poag rise to the level of
deliberate indifference. Accordingly, we reverse the district

court's denial of qualified immunity as to Dr. Poag.

Physician Assistant Martin

The appellees seek to impose liability on Physician Assistant

Martin based on his treatment of Adams on October 7 and 8, 1989.

Martin was at the Rivers infirmary on October 7 when the Bostick

duty nurse notified him by telephone that Adams was experiencing

difficulty. Martin ordered Adams transferred to Rivers where he

administered nebulizer treatment. Martin also made an entry in

Adams's medical record that Adams appeared to be responding well to

the treatment. Adams subsequently returned to Bostick. However,

at 5:55 p.m. he was returned to Rivers after complaining of

difficulty breathing. At 1:55 a.m. on the morning of October 8,

1989, Martin received a telephone call from a nurse at Rivers,

reporting that Adams was short of breath and was flushed. Martin,

who was seeing a patient at another MGCC facility, ordered a second

nebulizer treatment for Adams. Sometime after 1:55 a.m. that

morning, Martin left the other MGCC facility and returned to Rivers

to check on Adams. A nurse told him that Adams had responded well

to the nebulizer treatment and had gone back to sleep. A few

minutes after leaving, he received another telephone call

concerning Adams. Martin returned to Rivers where he examined

Adams and detected wheezing and sweating. He determined that Adams

required treatment at an outpatient clinic. Martin also remained

with Adams until the ambulance arrived. Unfortunately, Adams died

while being transported to the outpatient clinic.

The appellees contend that Martin's failure to personally
examine Adams before prescribing the second nebulizer treatment and

his failure to take further action when Adams's condition

deteriorated on the day he died constituted deliberate indifference

to Adams's medical needs. We disagree. The appellees stress the

fact that Martin prescribed a nebulizer treatment for Adams over

the telephone without personally examining him. But, in Howell,

this court held that prescribing similar medication over the

telephone without personally examining the inmate did not

constitute deliberate indifference. 922 F.2d at 721. Moreover, we

note that when Martin prescribed the medication over the telephone,

he was unable to personally examine Adams at that time because he

was tending to another patient elsewhere in MGCC. Additionally,

when Martin finished treating the other patient, he returned to

River to check on Adams and at that time made the determination

that Adams should be transferred to the outpatient clinic.

Appellees argue that Martin was obliged to prescribe some stronger

medication in order to treat Adams's obviously deteriorating

condition. Their expert, Dr. DiBenedetto, acknowledges that

ordering Adams transferred to the hospital was the proper course of

action. Thus, Martin's liability turns on whether his failure to

administer stronger medication to Adams pending the arrival of the

ambulance constituted deliberate indifference. Obviously, such a

determination is a medical judgment and, therefore, an

inappropriate basis for imposing liability under section 1983. We

note, moreover, that the outpatient clinic was located only

one-half of a mile away from the Rivers infirmary. Accordingly, we

reverse the district court's denial of qualified immunity as to
Physician Assistant Martin.

Nurse Cody

Nurse Cody first examined Adams on September 16, 1989, when

he complained of breathing difficulties. Following a telephone

consultation with Dr. Poag, she administered Theophylline elixir.

Nurse Cody also treated Adams on September 29, 1989; however,

after examining him and failing to detect any respiratory distress,

she did not provide him any medication or refer his condition to

other medical personnel. Nurse Cody asserts that she did not

provide Adams any additional medication on that occasion because he

had been given medication one hour earlier and she thought Adams

should give the medication time to take effect. Nurse Cody

examined Adams again on October 3, 1989, did not detect any

respiratory distress, found that he had good air return and,

therefore, returned Adams to his dormitory without administering

any medication or consulting with other medical personnel.

Finally, on October 4, 1989, Nurse Cody administered Theophylline

elixir on the orders of a physician assistant.

The appellees assert that Nurse Cody on a number of occasions

denied Adams medical treatment or refused to allow him access to

further treatment with other medical personnel. Appellees

specifically point to Nurse Cody's treatment of Adams on September

29 and October 3, 1989 as grossly inadequate. They submitted the

affidavit of Freddie S. Hepner, a registered nurse, stating that

Nurse Cody's failure to alert a doctor on those two occasions to

Adams's condition was grossly inadequate. We disagree. Initially,

we note that the appellees do not contend that Nurse Cody declined
to examine Adams on the two occasions in question. Moreover, on

both occasions she apparently evaluated Adams's condition and made

the medical determination that his condition did not require that

she notify other medical personnel. The appellees do not point us

to any case in existence prior to the events in question that would

lead a reasonable nurse in Nurse Cody's position to conclude that

her actions in treating Adams constituted deliberate indifference.

Nor do they assert that contemporary standards of the medical

profession required Nurse Cody to alert other medical personnel of

Adams's condition after she had made the independent medical

determination that such a course of action was not necessary.

Appellees also do not assert that Nurse Cody's examinations of

Adams were so cursory as to constitute deliberate indifference. In

fact, Dr. DiBenedetto concedes that Adams was examined every time

he visited sick call. Dr. DiBenedetto also concedes that he cannot

assert that any of the examinations performed by the nurses at MGCC

were below the standards of the medical profession.

Ultimately, the appellees allegations against Nurse Cody can

be reduced to the assertion that she failed to recognize and treat

Adams's progressively deteriorating condition. Our review of the

record convinces us that the appellees cannot support the claim

that Nurse Cody, or the other appellants, recklessly failed to

detect Adams's admittedly deteriorating condition. This is a

tragic case. The appellees, however, at most, have made out a

colorable claim of medical malpractice. Therefore, we reverse the

district court's denial of qualified immunity as to Nurse Cody.

CONCLUSION
 Accordingly, the district court's order denying the appellants

qualified immunity is reversed and the case is remanded for

proceedings consistent with this opinion.

REVERSED and REMANDED.

CLARK, Senior Circuit Judge, dissenting:

Respectfully, I dissent. I believe the district court was

correct in holding that there is a genuine issue of material fact

as to whether the defendants were deliberately indifferent. The

district court did not err in denying the defendants' motion for

summary judgment.

Adams was convicted in Savannah for being a habitual DUI

offender and was sentenced to one year in the Georgia prison

system. While awaiting transfer to prison, Adams was hospitalized

for a week with chronic asthma. When he reached the Bostick

Correctional Institution on September 15, his admission sheet

reflected that he suffered from chronic asthma and any work

assignments should take that into account. Twenty-three days after

admission, on October 8, 1989, he died as a consequence of not

being properly treated for his asthma. The defendants/appellants

were involved in the failure to treat his illness. During the

twenty-three days he was seen twice by defendant Dr. Poag who

recognized his symptoms of asthma. He was never seen by Dr.

Carmichael, who was consulted by telephone by nurses and/or

physician assistants. Dr. Carmichael discontinued the one

medication which had aided Adams' asthma prior to his confinement.

Dr. Robert J. DiBenedetto, an internist and specialist in

treating pulmonary ailments, testified by deposition. Dr.
DiBenedetto was Medical Director of the School of Respiratory

Therapy at Armstrong and Medical Director of the Internal Medicine

Residency Program at Memorial Medical Center in Savannah. He was

furnished Adams' state prison medical records for review.

Following are excerpts from Dr. DiBenedetto's deposition:

Q: Well, let me do what I don't want to do. You say you have
a general feeling about the standard of medical care that was
at this prison based on his records. Tell me what your
opinion is generally.

A: The opinion is that this standard of care is inadequate.

Q: I take it that it's your opinion it doesn't meet community
standards?

A: Absolutely not.

Q: Specifically what areas do you say are inadequate?

A: Well, first of all, let's take just as in general. People
realize that there's an increasing mortality in asthma. We
know it's in people who have been hospitalized before. We
know it's in people who have repeated difficulties
unresponsive to therapy, and we have an individual here who
has been ill for almost a month, who is in and out of the
infirmary; and that in and out is a red flag that says do
something with this individual; hospitalize him. Put him on
corticosteroids, which is the main form of therapy.

He had a seven-day course of corticosteroids, and during
that time he got better for a day or two and then got worse.
Somebody should have increased his steroids and kept him on
them.

Secondly or thirdly there's a tremendous play on
Theophylline in this chart which is now a third line drug.
Many of the manipulations of the Theophylline as far as I was
concerned was change one preparation for another when in
reality the man needed to be, one, hospitalized, and, two, if
they didn't want to hospitalize him, at least he should have
been put on high doze (sic) corticosteroids for a protracted
period of time.

And I could go on, but when nurses examine you and say
patient hyperventilating, he had asthma. That's why he was
breathing that way. We have comments in the chart that the
patient is—they allude to him as some type of malingerer, and
yet if you follow the course of what's going on, he's an
asthmatic who was literally yelling out for help; and nobody
is listening to him. Each day he has more and more trouble
breathing.

We have gaps in the records where he was supposedly to be
started on medicine. A day, day and a half went by with no
medicine. To somebody with asthma, that's a disaster.

On the day of his demise, he was given an injection I
believe of Vistaril, which is a sedative. If you look in the
literaure (sic), the asthmatics who die, they all die in
hospitals basically, the bad ones who die, in the middle of
the night when they're all usually—in the early days, in the
1950s and '60s—and I've seen some of this stuff in the medical
literature—are given sedatives to shut them up, and we didn't
know any better in those days.

But the last entry is he's gotten some Vistaril. So I
think the medicines were inadequate. I think the people who
took care of him were not aware of how sick you can get with
asthma. I think the nurses were cavalier. I think the PAs
were constantly juggling medicines, but they were juggling the
same medicines, fooling with a little bit of change of doze
(sic) or another brand, and many of the treatments were
stopped gap.

There was an injection, a breathing treatment which are
just—that's sort of like the first two steps leaving home
plate on the way to first. Then at that point he should have
been treated totally different, and they didn't treat him that
way. When I look at this whole picture of a guy yelling out,
please, help me. He's showing up every day or almost every
day into the dispensary and who is just getting an extra pill
or an injection. That's not the way you treat asthma.

The way you treat a bad asthma attack and worsening
asthma is in the hospital, intravenous corticosteroids; and
that is the major treatment nowadays, and this fellow had a
very short course and actually worsening while on them because
he was given oral steroids in inadequate dozes (sic) when he
should have been getting intravenous steroids.

So, you know, you asked me what specifically is bad about
it, that's briefly what's bad about it. The whole thing is
bad. It's just inadequate care.1
* * * * * *

Q: Now, did you examine the specific liability of Dr.
Carmichael, the medical director?

A: Dr. Carmichael has these people working for him. I think

1
Deposition of Robert James DiBenedetto, M.D., at 19-23.
that he is not performing his job adequately.

Q: In what regard?

A: These doctors and nurses are incompetent.

Q: Which doctors did you review records from are incompetent?

A: It's very difficult to tell because a lot of notes in
there are physician's calls, orders given, and it is
exceedingly difficult to know who is doing what to whom.

There is one from Dr. Poag, I believe, P-O-A-G, whose
therapy seemed to be adequate but—almost adequate in that she
started him on corticosteroids, but there should have been
some follow-up in three or four days when he indeed was
getting very bad. In addition, she should have had some
pulmonary function studies on him, and you don't need a
sophisticated laboratory to do that.

That can be done with simple hand-held devices that are
very inexpensive which would allow you to identify a sick
asthmatic who's in danger of getting into real trouble. And
those devices are well described in the literature and are in
lots of general practitioners' offices.

Q: What are they called?

A: Spirometers.

Q: Can you spell that for the court reporter?

A: S-P-I-R-O-M-E-T-E-R-S; and Peak Flow, P-E-A-K F-L-O-W,
Meters, M-E-T-E-R-S.

Q: Do you know whether these devices are commonly available
in prison institutions?

A: I don't know.

Q: What did Dr. Poag do? You said she was doing the proper
studies, just didn't follow up right?

A: I think that she should have—when presented with his
asthmatic (sic), he had been hospitalized in the past, and he
tells her that he can get really quite ill, and she examines
him and finds him to be in an asthma attack, I think that some
simple pulmonary function testing is in order. And I think
then at that point, the cost of therapy with what she did I
think was initially adequate, starting him on Prednisone; but
I think a week's worth and the dozes (sic) that were used were
inadequate.

And I can't tell you how bad he was at that time, but if
she's had some pulmonary function studies, I could tell you.
And I go on the basis that she describes him as wheezing, but
I'm not sure that it's severe wheezing or moderate wheezing;
and asthmatics can fool you because they can die with no
wheezing because they're not moving any air. So pulmonary
function studies would have been very useful. They're simple
to do. You don't need to be a specialist.

The second thing is maybe at that point, she should have
considered putting him in the hospital for intensive
intravenous therapy which would have avoided the whole
incident because that's the standard of care.

Now, she chose to treat him medically orally, and I can't
object to that because the doze (sic) of corticosteroids if
she had used an adequate doze (sic)—and the only way she would
have known what was adequate was to examine this fellow three
days later, a couple days after that, and continually adjust
his Prednisone until he had a good response because I believe
from reading the record, my feeling is having taken care of
many asthmatics that this patient probably should have been
maintained the entire time on some oral Prednisone.

Q: Is the information that you have about treating
asthmatics, is it generally held by medical practitioners?

A: Absolutely.2

* * * * * *

Q: Why is that unusual, Doctor, to watch a patient with
shortness of breath?

A: Because you treat him.

Q: Don't you monitor the patient?

A: Of course, you do, but you treat him.

Q: Is monitoring a patient a form of treating a patient?

A: No.

Q: It's not?

A: No; it's observation.

Q: What form of treatment should he have had?

A: At that point, he should have been transferred on 10/07.
He should have been in the hospital on intravenous

2
DiBenedetto deposition at 28-31.
corticosteroids, oxygen, and appropriate intravenous
Aminophylline.

Q: What date was that?

A: 10/07.

Q: What time of day?

A: 9:15.

Q: Was he, in fact, transferred to the hospital that evening?

A: Yes.

Q: All right.

A: But what care did he get there? What care did he get
there? They gave him some Elixophyllin, which is Theophylline
which is—he was on plenty already, and that was inadequate;
and then they sent him over there, and he winds up getting—if
I can find the 10/07 sheet, we can talk about it.

But he comes over there, and they give him some more on
10/07. They give him so (sic) more Theophylline. That's not
what he needs. In fact, too much Theophylline can kill you.
And they're pumping him full of Theophylline. I don't know
what his level was, and I'm not even implicating that. I'm
just pointing out that it can be dangerous.

And they give him Brethine, which is a drug which is used
for asthma which is basically an ancillary drug, and they gave
him Actifed which is for people with allergies and has no
effect at all on asthma.

Then they give him a breathing treatment, and they give
him some Vistaril to sedate him, and then somebody says
encourage fluid intake. That's gone. Nobody really pays much
attention to that anymore. And then they go transfer him, I
guess, to Rivers at that point or it says admit to infirmary,
so you'll have to tell me what the records are here, but 10/07
admission to infirmary.

And all that treatment, that's all just running around
the busy. There's no direct approach to this guy. They
should have had some pulmonary functions. He should have been
on intravenous therapy. He should have been on intravenous
corticosteroids. He should have been on intravenous
Aminophylline. And what they're doing is, they're giving him
a little of this and a little of that, and it's adding up to
nothing.

* * * * * *
 A: .... That's where I'm coming from when I say—if you read
all these notes, you come away with the feeling that people
were just not paying attention to this man.3
The majority quite correctly notes that mere differences in

medical judgment will not form the basis of a claim under the

Eighth Amendment. The excerpts from Dr. DiBenedetto's deposition

quoted above, however, indicate significantly more than a

difference in opinion in the proper treatment of severe asthma.

Dr. DiBenedetto's criticism of the treatment given to Adams is

multi-faceted. He asserts variously that Adams was not given

sufficient doses of corticosteroids, that days went by when he

received no medication whatsoever, that the changes in medication

and dosage was haphazard, that he should have been put on

intravenous corticosteroids, and that there was no follow-up after

initial treatment proved ineffectual.

The majority's view of Dr. DiBenedetto's testimony suggests

that there is a conflict in the evidence:

Dr. DiBenedetto's affidavit and deposition are helpful for
what they do not say. Dr. DiBenedetto does not take issue
with Dr. Carmichael's assertion that Brethine, Alupent
medication, and nebulizer treatments are appropriate
medications for treating severe asthma. Instead, he
characterizes intravenous steroids as the "major treatment"
for severe asthma. " Thus, we may infer the existence of other
asthma treatments whose efficacy matches intravenous
steroids." Of course, this is precisely Dr. Carmichael's
contention, and Dr. DiBenedetto's deposition concedes as much
when he notes that Adams was "given oral steroids in
inadequate doses." Implicit in this statement is the
assertion that an "adequate" dosage of the medication Adams
was receiving may have properly treated his condition.4

In my view, these are questions best left to the trier of fact.

3
DiBenedetto deposition at 33-37.
4
Majority Opinion at 3244-45 (emphasis added).
Obviously, the course of treatment prescribed for Adams was

ultimately insufficient. That which the majority "infers" and

finds "implicit" are precisely the questions which should be put to

the jury.

The Supreme Court last defined deliberate indifference in

Farmer v. Brennan,5 where the Court stated:

With deliberate indifference lying somewhere between the
poles of negligence at one end and purpose or knowledge at the
other, the Courts of Appeals have routinely equated deliberate
indifference with recklessness. See e.g., LaMarca v. Turner,
995 F.2d 1526, 1535 (CA11 1993).... It is, indeed, fair to
say that acting or failing to act with deliberate indifference
to a substantial risk of serious harm to a prisoner is the
equivalent of recklessly disregarding that risk.6

* * * * * *

Our decision that Eighth Amendment liability requires
consciousness of a risk is thus based on the Constitution and
our cases, not merely on a parsing of the phrase "deliberate
indifference." And we do not reject petitioner's arguments
for a thoroughly objective approach to deliberate indifference
without recognizing that on the crucial point (whether a
prison official must know of a risk, or whether it suffices
that he should know) the term does not speak with certainty.
Use of "deliberate," for example, arguably requires nothing
more than an act (or omission) of indifference to a serious
risk that is voluntary, not accidental. Cf. Estelle, 429
U.S., at 105, 97 S.Ct., at 291-292 (distinguishing "deliberate
indifference" from "accident" or "inadverten[ce]"). And even
if "deliberate" is better read as implying knowledge of a
risk, the concept of constructive knowledge is familiar enough
that the term "deliberate indifference" would not, of its own
force, preclude a scheme that conclusively presumed awareness
from a risk's obviousness.7
The majority seriously errs in holding that the medical

treatment of Adams does not present a disputed issue of material

fact as to whether or not there was deliberate indifference to

5
--- U.S. ----, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
6
Id., --- U.S. at ----, 114 S.Ct. at 1978.
7
Id., --- U.S. at ----, 114 S.Ct. at 1980.
Adams' needs. The majority accepts the efficacy of the medical

treatment notwithstanding Dr. DiBenedetto's opinion that what was

done was largely wrong and that several known and available

medicines and diagnostic techniques were not given or administered.

Adams was seen only twice by a doctor during the twenty-three day

period and a doctor was not called when he obviously was dying.

Whether the indifference which is obvious in this case was reckless

or accidental should have been determined by a jury, not by judges

from a cold record.