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Ninth Circuit:
County Not Liable for Death of Inmate With Weight Loss
In Opinion With Three-Way Split, Court Holds That Prisoner’s Involuntary Shedding of Pounds Did Not Provide Sufficient Indication of Fatal Kidney Disease That Lack of Medical Care Constituted ‘Deliberate Indifference’
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that the County of Alameda might be liable to survivors of a man who died in custody in a jail, but restricted any potential recovery to damages based on pain and suffering of the decedent as a result of deliberate indifference to the involuntary weight loss he experienced, finding no liability for wrongful death.
Only one member of a three-judge panel—Senior Judge Carlos Bea—agreed with the entirety of the memorandum opinion.
Judge Salvador Mendoza Jr. and Bea joined in reversing a summary judgment granted by District Court Judge Haywood S. Gilliam Jr. of the Northern District of California in favor of the defendants on the pain-and suffering claim; Senior Judge Jay S. Bybee, in a partial dissent, argued that the defense judgment on all claims should be affirmed; Mendoza said he would restore the wrongful-death claim.
In addition to the county, California Forensic Medical Group (“CFMG”), which provides medical services to correctional facilities in nearly half of California’s counties, was a defendant/respondent.
Wrongful Death
The inmate died of undiagnosed chronic kidney disease, of which weight loss is a symptom. Maintaining that there is liability for wrongful death, the plaintiffs asserted in their reply brief:
“Defendants’ arguments invite deliberate indifference to health symptoms that are likely to result in death. Because they failed to evaluate and diagnose Hector Hernandez’s (‘Hector’) critical weight loss, they plead ignorance to his specific ailments and the specific treatments that could have saved him. On this basis, they argue that Plaintiffs could not prove causation because they could not establish foreseeability nor identify the sole cause of Hector’s critical weight loss. Indeed, Defendants seek to benefit from their deliberate indifference to Hector’s serious medical need and their failure to evaluate and diagnose it. Were this the standard for causation, defendants would ignore medical conditions that are likely to result in death and simply avoid liability by sticking their heads in the sand.”
Bybee and Bea rejected that contention, saying:
“Nothing in the record establishes that if Defendants had more thoroughly investigated Hernandez’s weight loss, they would have discovered his chronic kidney disease. Further, if they had discovered it, there is no proof that it would have been treatable. If it had been treatable, there is no proof that treatment would likely have prevented his death. Plaintiffs bore the burden of putting forth evidence to overcome summary judgment by creating a genuine dispute of material fact as to causation. They failed to do so. We agree with the district court that Plaintiffs failed to establish a genuine dispute regarding whether Defendants caused Hernandez’s death.”
Mendoza, in his partial dissent, recited that a forensic pathologist had concluded that the death could have been prevented if there had been medical care, and wrote:
“[I]f a competent medical expert says that adequate care in the face of apparent symptoms would have discovered the mortal disease and that the death could have been prevented, the case should be submitted to the jury. Here, the district court applied its own estimation of what ‘medical certainty’ requires, disregarded certain medical conclusions in favor of others, and mangled Plaintiffs’ theory of causation to conclude they could not prove it.”
Pain and Suffering
The defendants noted that under California Civil Code §377.34, survivors have no cause of action based on a decedent’s pain and suffering, arguing that no claim is cognizable based on discomfort experienced by Hernandez. Mendoza and Bea pointed out that that the Ninth Circuit has previously held that an action brought under 42 U.S.C. §1983, for a civil-rights violation by a person acting under the color of state law, may not be so restricted.
The plaintiffs argued on appeal that the defendants ignored Hernandez’s pleas for help, saying:
“It is undisputed that as his health declined, Hector made repeated sick calls and complained to CFMG of losing weight and being hungry. He begged, ‘Can you please help?’…CFMG does not dispute that it provided no medical care to address Hector’s unintended weight loss.”
Mendoza and Bea wrote:
“[A]ssuming without deciding that Defendants were deliberately indifferent, a genuine dispute of material fact exists as to whether Defendants’ caused Hernandez to suffer involuntary weight loss, which caused him pain and suffering. And damages for that harm are not foreclosed as a matter of law.”
They said that the parties agree that a claim for loss of a familial relationship “rises or falls with Plaintiffs’ deliberate indifference action,” that claim must also be reinstated.
Bybee’s Contrary View
Bybee, in his partial dissent, said that a 2009 decision cited by his colleagues involved symptoms suffered by a prisoner in addition to weight loss, while “[t]here is no allegation that Hernandez endured headaches, dizziness, lightheadedness, or any other symptom beyond weight loss. He protested:
“[W]e have never acknowledged that involuntary weight loss alone is a cognizable injury and this is not the case to do so.”
Mendoza and Bea countered in a footnote:
“Though Hernandez did not complain of headaches or dizziness, we can draw the reasonable inference that Hernandez was suffering at least some type of discomfort in relation to his involuntary weight loss. Something clearly bothered Hernandez, so much so that he requested medical assistance three times. Of course, we cannot ask Hernandez if he was feeling any other discomfort related to his weight loss as he has passed away. But whether Hernandez suffered other ailments relating to his involuntary weight loss bears only on the size of damages to which Plaintiffs are entitled.”
The case is Hernandez v. County of Alameda, 23-15246.
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