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Ninth Circuit Revives Suit Against Doctor Who Missed Pieces of Weapon in Prisoner’s Neck
Opinion: Physician Not Entitled to Qualified Immunity at Pleading Stage Where She Purportedly Relied Upon X-Ray Despite Being Told That Weapon Might Not Have Been Metal
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals yesterday revived a civil rights lawsuit filed by a prisoner against the physician who treated him following an attack by a fellow inmate—during which the plaintiff was stabbed in the neck by a make-shift weapon—finding that there was a genuine issue of material fact as to whether the doctor’s failure to discover and treat the shank fragments left in the convict’s neck constituted deliberate indifference.
In a memorandum decision signed by Circuit Judge Eric D. Miller, Senior Circuit Judge Sidney R. Thomas, and Senior District Court Judge Donald M. Molloy of the District of Montana, sitting by designation, the court said that summary judgment was improperly granted where the doctor ordered an X-ray—indicating that she may have believed the inmate faced serious health risks—but failed to take seriously his concern that the weapon might have been plastic or glass.
Appealing the dismissal was Tiante Dion Scott, who filed a complaint, under 42 U.S.C. §1983, against the doctor, Olga Beregovskaya, and the nurses who performed his initial examination. Scott asserted that the medical personnel at the California State Prison located in Represa acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment.
Allegations in Complaint
Scott alleges that he was injured during a fight in February 2016 and suffered a torn rotator cuff, lacerations, and a stab wound to the neck. According to the plaintiff, the care team focused on the laceration but ignored his complaints relating to his shoulder and the stab wound, saying that Beregovskaya accused him of lying about not being able to raise his arm and wrongly accepted that the infection on his neck was due to an ingrown hair.
The operative complaint asserts:
“Beregovskaya was [c]allously indifferent [] in response to the Plaintiff’s pain regarding his neck wound after being stabbed….When the Plaintiff became enraged when she would not attend to the neck wound [] Beregovskaya had a legal requirement to further investigate why the patient’s mood change in such a[n] extreme manner….[] Beregovskaya chose to deliberately and consciously disregard the excessive risk to the Plaintiff’s health when she informed [him] that [g]lass and [p]lastic [do] not show up on the X-Ray machine. Due to the training of this doctor being she works in a prison…[she] should have known that inmates make shanks from anything like metal, plastic and glass. When the patient informed her that he had been stabbed…and the Plaintiff explained that he…did not see what [material the weapon] was….she…should have at that point…further investigat[ed] if there may be glass or plastic in the patient’s neck.”
He contends that he was “forced to dangerously live with a foreign object lodged in his jugular vein for one year” before he received proper treatment.
Summary Judgment
The nurses and Beregovskaya moved for summary judgment on the merits and asserted qualified immunity. The case was assigned to former Magistrate Judge Gary S. Austin of the Eastern District of California (now retired), who recommended that the case be dismissed with prejudice, writing:
“Plaintiff has shown that he had serious medical needs, because during an altercation with another inmate he was stabbed in the neck and injured his right arm. Plaintiff’s neck wound was not healing properly…and he could not raise his right arm. These allegations are sufficient to satisfy the first part of the test for an Eighth Amendment…claim.
“However, Plaintiff fails to allege facts showing that any of the Defendants acted with deliberate indifference to his serious medical needs. Plaintiff alleges that doctors and nurses did not listen to Plaintiff, or take him seriously when he told them about his injuries and medical problems….While these are serious allegations they do not rise to the level of deliberate indifference because Plaintiff has not shown that any of the Defendants drew the inference that there was a substantial risk of serious harm to Plaintiff’s health and yet deliberately ignored the risk and acted unreasonably—or failed to act to reduce the risk of harm….Dr. Beregovskaya examined Plaintiff’s neck and took x-rays, concluding that Plaintiff did not have a stab wound or a foreign body embedded under his skin.”
Then-Chief District Court Judge Lawrence J. O’Neill (now on senior status) adopted Austin’s findings and recommendations and judgment was entered in favor of the defendants on June 22, 2022.
Ninth Circuit’s View
The panel noted that, in order to successfully assert an Eight Amendment claim based on inadequate medical treatment, a prisoner must show “deliberate indifference to serious medical needs.” They wrote:
“This two-pronged test consists of an objective and subjective element….The first prong, serious medical need, is objectively shown….The second prong, deliberate indifference, involves a subjective assessment of whether a defendant was ‘both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [] must also draw the inference.’ ”
Turning to the allegations against Beregovskaya, they concluded that “Scott has raised a genuine issue of material fact as to whether Dr. Beregovskaya’s failure to treat the shank fragment in his neck was a ‘medically unacceptable’ decision made ‘in conscious disregard of an excessive risk to [his] health,’ constituting deliberate indifference.”
Thomas, Miller, and Molloy remarked:
“Dr. Beregovskaya asserts that she believed Scott was lying, but a rational trier of fact could conclude that her choice to order an x-ray reveals a subjective belief that Scott faced a ‘substantial risk of serious harm.’….If Dr. Beregovskaya had such a subjective belief, then Scott has raised a triable issue of fact as to whether Dr. Beregovskaya’s treatment decision was medically reasonable.”
Continuing, they said:
“Specifically, Scott argues that because he told Dr. Beregovskaya that the shank was plastic or glass, and because the x-ray could not, by Dr. Beregovskaya’s contemporaneous admission, detect plastic or glass, Dr. Beregovskaya’s choice to order the x-ray was medically unreasonable. The medical reasonableness of her decision is a fact-intensive question that cannot be resolved at summary judgment. Thus, the district court erred by granting summary judgment in favor of Dr. Beregovskaya on this claim.”
Qualified Immunity
As to Beregovskaya’s assertion of immunity, the jurists commented:
“Nor is Dr. Beregovskaya entitled to qualified immunity based on her treatment of Scott’s neck. It is clearly established that a defendant can be held liable for actions that were ‘medically unacceptable under the circumstances’ if she chose a course of treatment ‘in conscious disregard of an excessive risk to the plaintiff’s health.’….As explained above, Scott has raised a triable issue of fact as to whether Dr. Beregovskaya’s decisions were medically reasonable. Accordingly, Scott’s deliberate indifference claim against Dr. Beregovskaya for the treatment of his neck is remanded for further proceedings.”
Addressing the claims against the attending nurses, the panel agreed with O’Neill that “summary judgment was properly granted in [the] Nurse Defendants’ favor” because they “concluded Scott had an ingrown hair and relayed this medical opinion to the supervising physician” and so “did not actually infer that a substantial risk of serious harm to Scott existed.”
The case is Scott v. Beregovskay, 22-16064.
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