                                                                                  PUBLISH


               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                                                                  U.S. COURT OF APPEALS
                         ------------------------------------------- ELEVENTH CIRCUIT
                                                                         10/20/99
                                       No. 98-9178                    THOMAS K. KAHN
                        --------------------------------------------      CLERK
                         D. C. Docket No. 1:97-CV-431-JEC


FITZGERALD COLUMBUS HINSON,
                                                          Plaintiff-Appellee,

     versus

RODERICK E. EDMOND, M.D.,
                                                          Defendant-Appellant.


               ----------------------------------------------------------------
                    Appeal from the United States District Court
                          for the Northern District of Georgia
               ----------------------------------------------------------------
                                   (October 20, 1999)


Before EDMONDSON and BIRCH, Circuit Judges, and OWENS*, Senior District
Judge.


____________

*    Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge for the Middle
     District of Georgia, sitting by designation.
EDMONDSON, Circuit Judge:

      In this case, the defendant, a privately employed prison physician, appeals

the district court’s determination that he was ineligible for qualified immunity and

its denial of his motion for summary judgment. Because we conclude that the

defendant, due to his status as a privately employed prison physician, is ineligible

to advance the defense of qualified immunity and that material issues of fact exist

on whether the 8th Amendment was violated at all, we AFFIRM the district court’s

order and REMAND for further proceedings.



                                  BACKGROUND



      Plaintiff is an inmate in the DeKalb County Jail. Defendant is the Medical

Director for the jail. Defendant is not a government employee; he is employed by

Wexford Health Sources, a for-profit company with which DeKalb County has

contracted for medical services for the jail. In June 1995, plaintiff injured his

Achilles tendon playing basketball at the jail. On 11 January 1996, surgery was

performed on plaintiff’s Achilles tendon. In late August 1996, John Schmidt, the

DeKalb County Jail Health Services Coordinator, noticed that plaintiff was still in

a wheelchair and wearing a hospital gown seven months after surgery and asked


                                           2
defendant to investigate. Defendant saw plaintiff on 26 August, noticed atrophy in

his leg, and asked the nurse to check on plaintiff’s appointment at Grady Hospital

(“Grady”).

       On 18 September 1996, plaintiff was examined by a physician’s assistant

who defendant says arranged for a follow-up appointment to be scheduled for

plaintiff at Grady. On 7 October 1996, Defendant says he wrote a consult request

form to Grady because plaintiff had yet to be scheduled for an appointment. But,

the first written record of a consult request is dated 7 November. Grady set an

appointment for 8 November. Plaintiff did go to Grady that day and began a

program of rehabilitation.

       Later, plaintiff filed a complaint against DeKalb County, Sheriffs Morris and

Dorsey,1 and John Does 1-10 asserting claims under 42 U.S.C. § 1983. The

complaint was then amended to include Dr. Edmond. The district court granted

summary judgment for all defendants except Dr. Edmond. About Edmond, the

court determined that (1) Edmond was not entitled to qualified immunity because

the preexisting law was clear that an unreasonable delay in medical treatment was




 1
   Morris was Sheriff of DeKalb County from the end of March 1996 until 31 December 1996. On
01 January 1997, Dorsey became Sheriff of DeKalb County.

                                             3
an 8th Amendment violation, and (2) a material issue of fact existed on whether

Edmond violated plaintiff’s 8th Amendment rights. Edmond appealed.

           While this appeal was pending, the parties were directed to file supplemental

briefs on the applicability of Richardson v. McKnight, 117 S.Ct. 2100 (1997), to

the issue of whether Dr. Edmond was entitled to raise a qualified immunity defense

at all.2



                                        DISCUSSION



           In Richardson v. McKnight, 117 S.Ct. 2100 (1997), the Supreme Court

looked at the history and purposes of qualified immunity and determined that they

did not support the extension of qualified immunity to prison guards who were




  2
     Although Richardson’s application was not argued in the district court, we are confident that
we have before us a record that will allow us to decide the immunity question fairly. In his
supplemental brief, Edmond requested that the case be remanded so that the contract between
DeKalb County and Wexford Health Sources could be added to the record. We treated this request
as a motion to supplement the record and directed that the parties submit an agreed to copy of the
contract that was in force between DeKalb County and Wexford Health Sources during the relevant
time. The parties were also permitted to submit additional briefs pointing us to portions of the
contract that the parties deemed pertinent to the Richardson issue.
        Although the contract was not reviewed by the district court below, we have the inherent
power to supplement the record with materials not submitted to the district court. See Young v.
DeVaney, 59 F.3d 1160, 1168 (11th Cir. 1995); Jones v. White, 992 F.2d 1548, 1566-68 (11th Cir.
1993); Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1555 (11th Cir. 1989); Ross v. Kemp, 785
F.2d 1467, 1474-76 (11th Cir. 1986); Dickerson v. Alabama, 667 F.2d 1364, 1367 (11th Cir. 1982).

                                                4
employed by a private, for-profit corporation that had contracted with the state to

manage the prison.

      First, the Court determined that, although historically prisons had been run

by both private and state actors, no “firmly rooted” tradition of immunity for

privately employed prison guards had developed. See id. at 2104. Second, the

Court discussed three purposes of qualified immunity: (1) protecting against

unwarranted timidity on the part of government officials, (2) ensuring that talented

candidates are not deterred from entering public service, and (3) preventing the

distraction of governmental officials by lawsuits. The Court then concluded that,

because of the influence of market forces on private employers, these same

considerations did not support the extension of qualified immunity to the privately

employed prison guards. See id. at 2106-07.

      For the same reasons that the Richardson Court declined to extend the

doctrine of qualified immunity to privately employed prison guards, we decline to

extend qualified immunity to this privately employed prison physician.

      Under common law, no “firmly rooted” tradition of immunity applicable to

privately employed prison physicians exists under circumstances such as these.

That medical malpractice -- negligence by a physician -- is insufficient to form the

basis of a claim for deliberate indifference is well settled. See Estelle v. Gamble,


                                          5
97 S.Ct. 285, 292 (1976); Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995).

Instead, something more must be shown. Evidence must support a conclusion that

a prison physician’s harmful acts were intentional or reckless. See Farmer v.

Brennan, 114 S.Ct. 1970, 1977-79 (1994); Cottrell v. Caldwell, 85 F.3d 1480, 1491

(11th Cir. 1996) (stating that deliberate indifference is equivalent of recklessly

disregarding substantial risk of serious harm to inmate); Adams, 61 F.3d at 1543

(stating that plaintiff must show more than mere negligence to assert an Eighth

Amendment violation); Hill v. DeKalb Reg’l Youth Detention Ctr, 40 F.3d 1176,

1191 n.28 (11th Cir. 1994) (recognizing that Supreme Court has defined

“deliberate indifference”as requiring more than mere negligence and has adopted a

“subjective recklessness” standard from criminal law); Qian v. Kautz, 168 F.3d

949, 955 (7th Cir. 1999) (stating “deliberate indifference” is synonym for

intentional or reckless conduct, and that “reckless” conduct describes conduct so

dangerous that deliberate nature can be inferred).

      The parties have not been able to point to, and independent research --

including a look at the sources cited by the Supreme Court in Richardson -- does

not reveal, cases which show a common law tradition of immunity from liability

for privately employed prison physicians for acts amounting to recklessness or

intentional wrongdoing. Instead, case law shows that even state physicians may be


                                           6
subject to liability for intentional torts. See Irwin v. Arrendale, 159 S.E.2d 719,

725 (Ga. Ct. App. 1967) (stating that prison medical director could be sued for

intentional tort of battery if prisoner was x-rayed without consent or proper

medical justification); see also Jackson v. Miller, 335 S.E.2d 438, 439 (Ga. Ct.

App. 1985) (stating that doctor employed by public clinic was not allowed to

advance defense of immunity in a malpractice action because doctor was not acting

as government agent when treating patient but was only acting as physician).

      And, although the Supreme Court, in passing, mentioned that “apparently,

[in England], the law did provide a kind of immunity for certain private

defendants, such as doctors or lawyers who performed services at the behest of the

sovereign,” see Richardson, 117 S.Ct. at 2105, the circumstances here do not seem

to be the kind of situation encompassed by that statement. The sources cited by the

Court suggest that, under certain circumstances, English doctors and lawyers were

immune from liability for acts amounting to negligence. For acts amounting to

recklessness or intentional wrongdoing, as are alleged here, immunity did not exist,

however. See Tower v. Glover, 104 S.Ct 2820, 2825 (1984) (stating that “English

barristers enjoyed in the 19th Century...a broad immunity from liability for

negligent misconduct....Nevertheless, it appears that even barristers have never

enjoyed immunity from liability for intentional misconduct”); Joel P. Bishop,


                                          7
Commentaries on Non-Contract Law §704 (Chicago, T.H. Flood & Co. 1889)

(same); Bishop, supra, § 708 (1889) (stating that physicians could be liable for

criminal malpractice but were likely immune from liability for civil negligence).

      In addition to the lack of historical support for immunity, the public policy

reasons for qualified immunity do not justify the extension of qualified immunity

in this case. The Richardson Court suggested that the market forces to which a

private company is subjected negate the fears of “unwarranted timidity” in the

performance of duties. The record in this case reflects just that.

      Before December 1995, the medical contractor for the DeKalb County Jail

was a different entity, Correctional Medical Services (“CMS”). The record reflects

that, before the change from CMS to Wexford, county prison personnel

complained about CMS’s medical records systems and medical staffing levels. In

December 1995, Wexford Health Sources replaced CMS. Furthermore, the record

reflects that, after Wexford took over, DeKalb County officials had many meetings

with Wexford officials and noted the county’s concern that, due to the increased

inmate population, the staffing level of the medical clinic might be inadequate.

Wexford hired additional medical personnel.

      Also, as was the case in Richardson, Wexford Health Sources was

systematically organized to perform a major administrative task for profit.


                                          8
Wexford was contractually obligated to provide for the delivery of all inmate

health care services.3 With the exception of the county-employed medical

personnel who handle the tuberculosis program and some other privately employed

mental health personnel, Wexford was responsible for recruiting, interviewing,

hiring, training and supervising the health care staff that handles the general

medical needs of an inmate population of approximately 3000. Dr. Edmond was

the medical director of the jail and was in charge of overseeing the general policies

for medical care and of implementing systems to provide greater quality of care at

the jail. Wexford also maintained the medical records department for the jail and

designed and implemented policies for inmate health care.

       Moreover, as was the case in Richardson, Wexford performed its task with

limited direct supervision and control by the government. Wexford had sole

responsibility in all matters of medical judgment. Although Wexford was required

to assist, support, and cooperate with the Sheriff when treating an inmate who



  3
      “Inmate health care” is defined, in the pertinent contract, as “all professional medical, dental,
and related health care (excluding in-patient psychiatric hospitalization) and administrative services
for the inmates, a comprehensive health evaluation of each inmate following booking into the
Jail...,regularly scheduled sick call, nursing care, regular physician and dentist visits to the Jail,
medical specialty services, emergency medical care, medical records management, pharmacy system
including pharmaceuticals, over the counter medications, pharmacist services and system
management, special medical services including, but not limited to, radiology, diagnostic, and
laboratory services, to the extent reasonably necessary in the opinion of a medical professional, and
other services all as more specifically described herein.”

                                                  9
posed a security risk or was dangerous to himself or others, Wexford was chiefly

responsible for identifying and treating such patients.

       DeKalb County employed a Physician’s Assistant, John Schmidt, to act as a

liaison between Wexford and the Sheriff. Schmidt’s job was to help ensure that

Wexford was complying with its contract: Schmidt did not supervise Dr. Edmond’s

medical performance, hire or fire Wexford employees, or have the authority to

change policies on medical treatment for prisoners. Both Sheriffs Morris and

Dorsey said (without contradiction) that Wexford was responsible for the delivery

of medical services to prisoners at the jail and that the Sheriff did not undertake to

supervise or to train anyone working for Wexford on the provision of medical care

at the jail.

       Policies and procedures for medical care were established and implemented

solely by Wexford and Dr. Edmond. But, in areas which impacted on the security

and administration of the jail, the policies were subject to approval by the Sheriff.

And, although the Sheriff’s Department and jail officials investigated complaints

about medical treatment and discussed with Schmidt the status of the jail’s medical

operations, Sheriff Dorsey did not think that he had the authority to discipline Dr.

Edmond. And, Sheriff Dorsey believed that he would have to address problems by

contacting Wexford executives or having Wexford replaced. In addition, although


                                          10
monthly Medical Auditing Committee meetings and weekly Senior Staff meetings

were held -- both of which were attended by Wexford and DeKalb officials,

Wexford officials chaired the meetings.

      The second policy reason for qualified immunity -- ensuring that qualified

candidates are not deterred from governmental service by the threat of damages

suit -- does not change the conclusion suggested by the above analysis. Despite

arguments raised by defendant in this case, that the inability of a privately

employed prison physician to raise the defense of qualified immunity will deter

qualified candidates is doubtful. Employee indemnification, increased benefits and

higher pay are all tools at the disposal of a private company like Wexford; and they

can be used to attract suitable employees.

      The third reason for qualified immunity -- that lawsuits may distract

employees from their duties -- was found insufficient, without more, to cause the

Richardson court to extend qualified immunity to privately employed prison

guards. In addition, the Richardson Court observed that, under Tennessee law,

privately employed prison guards were not immune from state law claims.

Because of this state law, the Supreme Court said that Tennessee “can be

understood to have anticipated a certain amount of distraction.” Richardson, 117

S.Ct. at 2107. In a similar way, not only has there been no tradition of immunity


                                          11
for privately employed prison physicians under Georgia common law, it appears

that Georgia still provides no official immunity for privately employed prison

physicians. See Cantrell v. Thurman, 499 S.E.2d 416, 421 (Ga. Ct. App. 1998).

Thus, Georgia can also be understood to have anticipated a certain amount of

distraction due to lawsuits.

       We conclude that this case is similar enough to Richardson for Richardson

to guide us, and no strong reason appears in this case to distinguish between

privately employed prison guards and privately employed prison physicians.4

Therefore, Edmond is not entitled to advance the defense of qualified immunity.5




  4
    This determination is consistent not only with the conclusion reached by two district courts in
this circuit, see Nelson v. Prison Health Servs, Inc., 991 F. Supp. 1452, 1462-63 (M.D. Fla. 1997);
McDuffie v. Hopper, 982 F. Supp. 817, 825 (M.D. Ala. 1997), but is also consistent with Halvorsen
v. Baird, 146 F.3d 680, 685-86 (9th Cir. 1998), where the Ninth Circuit concluded that neither a
privately employed detoxification center nor its employees were entitled to raise the defense of
qualified immunity. See also Bibeau v. Pacific Northwest Research Found., Inc., (9th Cir. Aug. 19,
1999); but see Camilo-Robles v. Hoyos, 151 F.3d 1 (1st Cir. 1998) (stating, without addressing
Richardson issue, that privately employed police psychiatrists are eligible to raise defense of
qualified immunity).
  5
    We express no view on the availability of a “good faith” defense to a private defendant under
these circumstances. See Richardson, 117 S.Ct. at 2108.

         To the extent that prior precedent may have treated the private employment of a prison health
care provider as immaterial to the defense of qualified immunity, see Adams v. Poag, 61 F.3d 1537
(11th Cir. 1995); Howell v. Evans, 922 F.2d 712 (11th Cir. 1991), those cases are not controlling
in the light of Richardson. That a privately employed prison physician acts under color of state law
for the purposes of liability under 42 U.S.C. § 1983 remains well settled. See West v. Atkins, 108
S.Ct. 2250 (1988); Ancata v. Prison Health Servs., Inc., 769 F.2d 700 (11th Cir. 1985).

                                                 12
      The only issue remaining is whether the district court erred when it denied

Dr. Edmond’s motion for summary judgment on the merits. We review a district

court's summary judgment order de novo and apply the same standard as the

district court. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir.1993). In

determining whether summary judgment is proper, we review the record in the

light most favorable to plaintiff and grant Edmond’s motion only if the record

demonstrates that no genuine issues of material fact are present and that Edmond is

entitled to judgment as a matter of law. See Steele v. Shah, 87 F.3d 1266 (11th

Cir. 1996).

      That a prison official’s deliberate indifference to a substantial risk of serious

harm to an inmate violates the 8th Amendment is well settled. See Farmer v.

Brennan, 114 S.Ct. 1970 (1994); Hale v. Tallapoosa County, 50 F.3d 1579 (11th

Cir. 1995). To survive defendant’s motion for summary judgment, Hinson is

required to produce evidence sufficient to create a genuine issue of material fact

about whether Edmond (1) had subjective knowledge of Hinson’s serious medical

condition, and (2) was deliberately indifferent to that condition. See Lancaster v.

Monroe County, 116 F.3d 1419, 1425 (11th Cir. 1997). A delay in treatment can,

depending on the circumstances and the length of the delay, constitute deliberate

indifference. See id.; Harris v. Coweta County, 21 F.3d 388, 394 (11th Cir. 1994).


                                          13
So, Hinson must show sufficient evidence to create a material issue of fact about

whether Edmond knew of Hinson’s serious medical condition and, intentionally or

with reckless disregard, delayed treatment. See generally Rogers v. Evans, 792

F.2d 1052, 1058 (11th Cir. 1986)(to establish that health care provider’s acts

constitute deliberate indifference to serious medical need, treatment must be so

grossly incompetent, inadequate, or excessive as to shock conscience or to be

intolerable to fundamental fairness).

      Hinson has pointed to enough evidence to avoid a judgment against him at

this time. That Dr. Edmond examined Hinson on 26 August 1999 and noted that

there was a serious medical condition -- Hinson’s leg was injured and the injury

was causing atrophy -- is undisputed. That Hinson was not treated at Grady until 8

November is also undisputed. Defendant says that, in the interim, the following

occurred: (1) on 26 August he instructed the nurse to check on the appointment at

Grady, (2) in September, a physician’s assistant examined Hinson and wrote a

consult request to Grady, and (3) in October, defendant personally wrote a consult

request to Grady. Together, defendant contends that this evidence shows that,

upon becoming aware of Hinson’s serious medical condition, he acted reasonably.

      Plaintiff disagrees about what the evidence shows altogether and stresses

that, by defendant’s admission, a written consult request is required to schedule an


                                         14
appointment at Grady. As the first record of a consult request is on 7 November,

and not in September or October as defendant contends, plaintiff argues that a jury

could find from the circumstances that defendant’s response to Hinson’s condition

was highly unreasonable and that the seventy-four-day delay in treatment goes

beyond negligence to violate the 8th Amendment. See generally Mize v. Jefferson

City Bd. of Educ., 93 F.3d 739, 742-43 (11th Cir. 1996)(discussing non-movant’s

circumstantial evidence as basis for issue of fact). Given the dispute surrounding

what happened during this more than ten-week period, material issues of fact

remain concerning what defendant’s response, upon learning of plaintiff’s serious

medical condition, was and whether that response was highly unreasonable. The

denial of summary judgment was no error.

      For the reasons discussed in this opinion, we AFFIRM the district court’s

denial of defendant’s motion for summary judgment and REMAND for

proceedings consistent with this opinion.

      AFFIRMED and REMANDED.




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