                         Revised May 14, 1999

                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                          ____________________

                             No. 98-60083
                         ____________________

              BESSIE STEWART; PEARL STEWART GROSS,
        individually and as administratrix of the estate
      of Eugene Stewart; EDWARD STEWART; HENRIETTA STEWART
   REED; PAUL E. STEWART; KELLY STEWART; EUGENE STEWART, JR.,

                                                   Plaintiffs-Appellants,

                                  versus

         STEWART MURPHY; ED HARGETT; RICHARD KNUTSON, Dr.;
          STANLEY RUSSELL; MYUNG KIM, Dr.; JOHN DIAL, Dr.,

                                                   Defendants-Appellees.


_________________________________________________________________

            Appeal from the United States District Court
              for the Northern District of Mississippi

_________________________________________________________________
                          April 27, 1999

Before REYNALDO G. GARZA, POLITZ, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     For this 42 U.S.C. § 1983 action arising out of the death of

Eugene   Stewart,   an   inmate   in   the   Mississippi   Department   of

Corrections   (MDOC),    Appellants    challenge    an   adverse   summary

judgment, claiming material fact issues for whether, in violation

of the Eighth Amendment, three of Stewart’s treating physicians and

the medical director at the prison hospital were deliberately
indifferent to his serious medical needs, resulting in his death.

We AFFIRM.

                                        I.

     This action centers on the treatment provided Stewart, from

August 1994 until his death four months later, for decubitus ulcers

(commonly known as bedsores), which ultimately caused his death.

Appellants      also   made   claims    in     district    court   against   MDOC

officials Murphy and Hargett.           As indicated in Appellants’ brief,

as well as conceded by their counsel at oral argument, Appellants

have abandoned their claims against these two officials and contest

only the summary judgment awarded Drs. Knutson, Russell, Kim, and

Dial.

     Appellants filed this action in November 1996, presenting §

1983 claims against the two MDOC officials and Drs. Knutson and

Russell.       The parties consented to the case being referred to a

magistrate judge.        After conducting discovery, Appellants added

Drs. Kim and Dial as defendants.

     In their answer, Appellees raised immunity defenses, including

sovereign and qualified immunity.               Contending that Appellants’

pleading lacked specificity, Appellees moved the district court to

require    a    more   specific   response      to   the   immunity     defenses.

Appellees based this motion on Schultea v. Wood, 47 F.3d 1427, 1433

(5th Cir. 1995) (en banc), in which this court stated: “When a

public    official     pleads   the    affirmative     defense     of   qualified


                                       - 2 -
immunity in his answer, the district court may, on the official’s

motion or on its own, require the plaintiff to reply to that

defense in detail”.       See also Baker v. Putnal, 75 F.3d 190, 195

(5th Cir. 1996).

     The district court denied the motion, ruling that the original

and amended complaints were “fact specific”; and that “[a]ny

further     clarification     can   be    obtained    through   discovery”.

Appellees do not challenge this ruling on appeal, although they

continue to assert that Appellants’ complaint failed to plead an

Eighth Amendment claim sufficiently.

     In December 1997, Appellees moved, pursuant to FED. R. CIV. P.

12(b)(6), to dismiss the complaint for failure to state a claim.

As a result, although the magistrate judge then questioned the

specificity of the complaint, he noted that, in the year since it

had been filed, the “somewhat inadequate allegations [in the

complaint] have now been considerably fleshed out by discovery”.

Accordingly, in the interest of efficiency, the magistrate judge

considered the evidence developed through discovery and treated the

motion as one for summary judgment, rather than striking the

complaint and requiring Appellants to refile.

     The magistrate judge held that Appellants failed to show the

requisite    subjective     knowledge    and   deliberate   indifference   by

Appellees.     He noted that, although Appellants may have shown

negligence, “there is no evidence that [Stewart] was deliberately


                                    - 3 -
ignored or maltreated or that the defendants committed willful

wrongs or malicious acts”.        Therefore, this action was dismissed

with prejudice.

                                    II.

                                    A.

     The motion to dismiss for failure to state a claim was

properly treated as one for summary judgment.             See FED. R. CIV. P.

12(b) (“If, [on a 12(b)(6) motion to dismiss], matters outside the

pleading are presented to and not excluded by the court, the motion

shall be treated as one for summary judgment and disposed of as

provided in Rule 56” (emphasis added)); Carter v. Stanton, 405 U.S.

669, 671 (1972); Baker, 75 F.3d at 197 (“... where a district court

grants a motion styled as a motion to dismiss but bases its ruling

on facts developed outside the pleadings, we review the order as an

order granting summary judgment”). Appellees do not claim error in

their Rule    12(b)(6)   motion    being   treated   as    one   for   summary

judgment.    In fact, they agree that, “considering the posture of

the pleadings and the plethora of discovery and evidence before the

[district court], [their motion to dismiss] was properly considered

by the [district court] under the summary judgment standard”.

                                    B.

     We review a summary judgment de novo, applying the same

standard as that used by the district court.                E.g., Melton v.

Teachers Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th


                                   - 4 -
Cir. 1997).      Under Rule 56, such judgment is appropriate “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”.                FED. R. CIV. P.

56(c).   We view the pleadings and summary judgment evidence in the

light most favorable to the nonmovant.             Melton, 114 F.3d at 559.

The nonmovant must “make a sufficient showing of an essential

element of the case to which [he] has the burden of proof”.                  Id.

He “must set forth specific facts to establish that there is a

genuine issue for trial, but where the evidential submissions lack

probative   value    as   to    a   genuine    issue,   summary   judgment   is

appropriate”.     Id.

     In this regard, the substantive law determines what facts are

“material”.      Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A material fact issue exists “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party”.

Id.; see Capital Concepts Properties 85-1 v. Mutual First, Inc., 35

F.3d 170, 174 (5th Cir. 1994).          “However, ‘[t]he mere existence of

a scintilla of evidence in support of the plaintiff’s position will

be insufficient [to preclude summary judgment]; there must be

evidence    on   which    the   jury     could   reasonably   find   for     the

plaintiff.’” Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215




                                       - 5 -
(5th Cir. 1998) (quoting Anderson, 477 U.S. at 252) (alteration in

original).

                                     1.

       The § 1983 claim at hand charges violation of Stewart’s rights

under the Eighth Amendment to the United States Constitution:

“Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted”.               Of course, the

Amendment does not, by its precise words, mandate a certain level

of medical care for prisoners. On the other hand, the “cruel and

unusual punishments” clause has been interpreted to mandate the

provision of medical care to them.          E.g., Farmer v. Brennan, 511

U.S. 825, 832 (1994) (“cruel and unusual punishments” clause

imposes duty on prison officials to “ensure that inmates receive

adequate food, clothing, shelter, and medical care”).

       Along this line, inadequate medical care by a prison doctor

can result in a constitutional violation for purposes of a § 1983

claim when that conduct amounts to “deliberate indifference to [the

prisoner’s]      serious   medical        needs”,    “constitut[ing]       the

‘unnecessary and wanton infliction of pain’ proscribed by the

Eighth Amendment”.      Estelle v. Gamble, 429 U.S. 97, 104 (1976)

(internal citation omitted) (quoting Gregg v. Georgia, 428 U.S.

153,   182-83   (1976)).   Farmer,     511    U.S.   at   837,   defined   the

“deliberate     indifference”   standard,     explaining    that   a   prison

official is not liable “unless the official knows of and disregards


                                  - 6 -
an excessive risk to inmate health or safety”.       Id. (emphasis

added); see also Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.

1998).

     Therefore, although inadequate medical treatment may, at a

certain point, rise to the level of a constitutional violation,

malpractice or negligent care does not.    Mendoza v. Lynaugh, 989

F.2d 191, 193 (5th Cir. 1993) (“It is clear that negligent medical

treatment is not a cognizable basis upon which to predicate a

section 1983 action”); Williams v. Treen, 671 F.2d 892, 901 (5th

Cir. 1982) (“mere negligence in giving or failing to supply medical

treatment would not support an action under Section 1983”(emphasis

added)); see also Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.

1989).   “Deliberate indifference encompasses only the unnecessary

and wanton infliction of pain repugnant to the conscience of

mankind.”   McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.

1997); see also Bradley, 157 F.3d at 1025.

     The heart of Appellants’ claim is that the pattern of neglect

by both the facility and the defendant physicians presents a

material fact issue for whether the physicians’ conduct constitutes

deliberate indifference.   Specifically, Appellants assert that the

doctors’ failure to properly treat Stewart’s decubitus ulcers, or

to transfer him to another facility for intensive physical therapy

and other treatment, met this standard. We conclude, however, that

Appellants have failed to present a material fact issue because, in


                               - 7 -
the light of the summary judgment evidence, no reasonable juror

could find that the physicians were deliberately indifferent.

     The   underlying   facts    concerning   the   course   of   Stewart’s

treatment are largely undisputed.        When he was first incarcerated

at the prison in May 1993, Stewart was 67 years old and suffered

from numerous ailments, including hypertension, arthritis, gout,

and heart disease.    Restated, Stewart was not a healthy man when he

entered prison.

     Approximately a year later, Stewart was transferred to the

prison disability unit, at which time he was essentially confined

to a wheelchair.     At some point shortly after his transfer to the

disability unit, Stewart became incontinent of bowel and bladder.

                                    a.

     Dr. Dial admitted Stewart to the prison hospital on 18 August

1994 to treat grossly swollen legs, which can be indicative of

congestive heart failure.       After treating this condition for five

days, Dr. Dial discharged Stewart to a disability unit.            The next

day, Dr. Dial was advised that Stewart had a large decubitus ulcer

on his lower back.      Dr. Dial ordered treatment of the ulcer by

cleaning the area with Betadine, applying sugardyne dressing, and

placing Stewart on the next sick call.

     Although the dissent asserts that Stewart did not receive

“even the most rudimentary medicinal functions”, Dr. Dial ordered

that his wounds be cleansed and treated with antibiotics, and


                                   - 8 -
provided for a follow-up examination.                 The dissent may not find

this treatment sufficient; but, at the very least, it was far more

than “rudimentary” medical care.

     At worst, any failure by Dr. Dial to discover the ulcer

earlier,    to    read     the     nurses’        notes   indicating      Stewart’s

incontinence or mobility problems, or to follow-up to ensure that

his orders were carried out might constitute negligence, not the

requisite deliberate indifference.

                                          b.

     When Stewart’s condition did not improve in the disability

unit, he was readmitted to the prison hospital on 6 September 1994,

under the care of Dr. Kim.          While Stewart was under her care, Dr.

Kim took cultures from the decubitus ulcers, debrided the wounds

several times, and administered antibiotics and I.V. fluids.                     She

ordered that the dressings be changed at least two to three times

daily; and that Stewart be repositioned every three hours.                  Dr. Kim

acknowledges that, due to staffing problems,                 the nurses sometimes

had difficulty following all of the orders.

     When   the    ulcers    did    not    significantly       improve,    Dr.   Kim

transferred      Stewart     to    a   nearby       non-prison     hospital      for

consultation and treatment by a local surgeon, Dr. Wright.                       Upon

Stewart’s return to the prison hospital, Dr. Kim did not follow Dr.

Wright’s recommendation that Stewart be transferred to another

facility    to    receive,    among       other    things,    physical     therapy.


                                       - 9 -
Instead, Dr. Kim ordered that Stewart be kept out of bed as much as

possible; and that the nurses move his extremities.   Because of the

seriousness of Stewart’s condition, Dr. Kim ultimately transferred

Stewart’s care to Dr. Knutson.

     This evidence does not present a material fact issue for

deliberate indifference by Dr. Kim. Even though she did not follow

Dr. Wright’s recommendations, this suggests nothing more than a

difference in opinion as to the appropriate method of treatment

under the circumstances. See Norton v. Dimazana, 122 F.3d 286, 292

(5th Cir. 1997).1

     In contrast to the charge by the dissent that Stewart was not

provided with “even the most rudimentary medicinal functions”, Dr.

Kim actively treated Stewart’s condition.   The evidence shows that

she personally debrided the ulcers, ordered that the wounds be

medicated and dressed, and monitored Stewart’s nutritional levels.

Further, although the dissent notes that Dr. Kim consulted with Dr.

Wright, it fails to mention that she took the additional step of

transferring Stewart to another hospital to enable Dr. Wright to

examine and treat Stewart and make a recommendation. Again, Dr. Kim

ultimately decided not to follow Dr. Wright’s advice.        In any




     1
      Although the dissent states that Dr. Kim “disregarded” that
advice, Dr. Kim’s deposition reflects that she considered Dr.
Wright’s advice, but chose to take another course of treatment. As
noted, this does not present a material fact issue concerning the
requisite deliberate indifference.

                              - 10 -
event, Dr. Kim’s active treatment of Stewart is far more than

“rudimentary”.

     Finally, the dissent repeatedly asserts that the doctors are

at fault for failing to transfer Stewart to another facility.                     Dr.

Kim specifically addressed this in her deposition, and stated that,

in her opinion, Stewart’s condition was not serious enough to

warrant    a   transfer      to   an   outside    hospital.2        As   noted,   the

plaintiffs must present a material fact issue regarding Dr. Kim’s

deliberate indifference to Stewart’s medical needs; they have not

done so.

                                         c.

     When Dr. Knutson took over Stewart’s care from Dr. Kim, in

order    to    treat   the    ulcers,     he     was   aware   of    Dr.   Wright’s

recommendations, but gave no consideration to transferring Stewart

to another facility for therapy.               Dr. Knutson treated the ulcers

with Dakin solution and sugardyne, ordered that the dressings be

changed twice daily, and directed that Stewart be repositioned

every hour.      Additionally, Dr. Knutson periodically checked the

wounds and ordered that Stewart get out of bed for extended periods

of time.       Once more, the treatment provided by Dr. Knutson,


     2
      The dissent states that the affidavit of Dr. Rothschild (an
expert for plaintiffs, but who only reviewed the medical records)
reflects a note by Dr. Kim that the prison hospital was inadequate
to provide the necessary treatment for Stewart. It is unclear how
the dissent came to attribute this statement to Dr. Kim, for in his
affidavit, Dr. Rothschild refers only to “the statement of one
physician”, without further identification.

                                       - 11 -
including orders to clean and medicate the ulcers and reposition

Stewart, was more than “rudimentary”.

     Dr. Knutson testified that he often did not read the nurses’

notes, which   indicated   that    Stewart   had   an   infection   from a

catheter, and he did not prescribe antibiotics.3          Knutson did not

see Stewart during the four day Thanksgiving holiday, and the

medical records indicate that Stewart was not seen by a physician

during that time.

     Dr. Knutson next saw Stewart on 28 November 1994; to the

doctor, Stewart “appeared like he was going to die”.          Dr. Knutson

attempted to treat Stewart at the prison facility, but ultimately

transferred him to the University of Mississippi Medical Center

(UMC) on 30 November 1994.

     The attending physician who admitted Stewart to UMC testified

that Stewart had the worst bedsores she had ever seen.4             He died


     3
      The dissent maintains that Dr. Knutson was deliberately
indifferent to Stewart’s medical needs in failing to prescribe
antibiotics for the catheter infection.      However, Dr. Knutson
testified that he did not read the nurses’ notes and that he was
unaware of the possible infection symptoms. Further, Dr. Knutson
testified that the symptoms noted by the nurses (pus and a foul
odor) were not necessarily symptomatic of an infection.       Thus,
without evidence that Dr. Knutson knew Stewart had an infection and
deliberately disregarded it, a material fact issue is not
presented.
     4
      In her deposition, Dr. Schlessinger, the attending physician
at UMC who admitted Stewart, affirmatively answered questions
whether the lack of antibiotics from November 13 until Stewart was
admitted to UMC could have contributed to the spread of the sepsis
and whether physical therapy would have been “helpful and
advisable”. At no time during her deposition does she state that

                                  - 12 -
there on 7 December 1994 from sepsis, due to the decubitus ulcers.

     Dr. Knutson did not transfer Stewart to another facility for

physical   therapy,    or   read   the    nurses’   notes,   or   administer

antibiotics.     Again, at worst, these actions might constitute

negligence, not the requisite deliberate indifference.

                                     d.

     Dr. Russell, the medical director at Parchman, was not one of

Stewart’s treating physicians.          His limited contact with Stewart

occurred during grand rounds.        Dr. Russell testified that he was

not informed that the nurses were having difficulty following Dr.

Kim’s orders.

     There is no material fact issue concerning Dr. Russell’s

understanding    that       Stewart’s     ulcers    were     being   treated

appropriately.   Dr. Russell was aware of the consultation with Dr.

Wright, but did not follow up with Dr. Kim concerning Dr. Wright’s

recommendations.      Again, there is no material fact issue as to

deliberate indifference.5

                                     2.

     At oral argument, Appellants’ counsel repeatedly referred to

evidence that the nurses consistently did not follow doctors’



a combination of antibiotics and physical therapy would have
prevented Stewart’s death.
     5
      Because it does not contest our holding with regard to Dr.
Russell, we presume the dissent agrees with this portion of the
majority opinion.

                                   - 13 -
orders regarding Stewart’s treatment; counsel claimed this equated

with deliberate indifference.    However, Appellants did not sue the

nurses; and, of course, the doctors may not be held liable for §

1983 violations under a theory of respondent superior or vicarious

liability, based upon claimed omissions by the nurses.        E.g.,

Monell v. Dept. of Social Servs., 436 U.S. 658, 692 (1978); Simmons

v. Cook, 154 F.3d 805, 808 (5th Cir. 1998) (no respondent superior

liability under § 1983); Eason v. Thaler, 73 F.3d 1322, 1327 (5th

Cir. 1996); Pierce v. Texas Dept. of Criminal Justice, 37 F.3d

1146, 1150 (5th Cir. 1994) (no vicarious liability under § 1983);

Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Certainly

§ 1983 does not give a cause of action based on the conduct of

subordinates”).6




     6
      The dissent does not assert that the doctors are vicariously
liable for the actions of the nurses, per se. It does assert,
however, that the doctors knew that the nurses would not be able to
carry out the doctors’ orders.      However, the record does not
present a material fact issue on this point. Dr. Dial testified in
his deposition that he expected his orders would be carried out.
Although Dr. Kim recognized that the nurses sometimes had
difficulty carrying out all of her orders, her testimony indicates
that she did not perceive the problem to be serious enough as to
impede Stewart’s treatment at the prison. Finally, Dr. Knutson
testified that he expected his orders to be carried out, and that
he was not aware that the nurses were having difficulty in
following his orders.



                                - 14 -
                                           3.

     Appellants        contend    that     the    cumulative        claimed     acts   of

negligence by Appellees is sufficient to raise a material fact

issue    for   deliberate        indifference.           To   the     contrary,    each

defendant’s subjective deliberate indifference, vel non, must be

examined separately.          See Sellers v. Henman, 41 F.3d 1100, 1102-03

(7th Cir.      1994)    (“The    only     significance        of   multiple     acts   of

negligence is that they may be evidence of the magnitude of the

risk created by the defendants’ conduct and the knowledge of the

risk by the defendants”).7

     Again,     on     this    record,    the     claimed     independent       acts   of

negligence     by    each     physician    were    not    sufficient       to   raise a

material    fact     issue     that   each   doctor      knew      that   his   acts   or

omissions subjected Stewart to an excessive risk of harm, yet

responded to the risk with deliberate indifference.8                       There is no


     7
      We do not read the dissent as disagreeing with the
proposition that the actions of the doctors must be viewed
individually, rather than cumulatively.      Rather, the dissent
disagrees only with our reasoning regarding the individual acts of
the doctors.
     8
      The dissent repeatedly asserts that the doctors denied
Stewart care that would have saved his life. The only evidence in
the record on this point is the earlier-referenced affidavit of Dr.
Rothschild, the expert for plaintiffs.      After summarizing his
review of Stewart’s medical records, Dr. Rothschild states: “It is
my opinion that the events that ultimately led to Mr. Stewart’s
demise began in August 1994 if not earlier and that the records of
his care at Parchman demonstrate that facility was medically
incapable or unwilling to properly care for his condition. Such
care in my opinion, amounts to an indifference on the part of those
in authority to take the action necessary to prevent his death,

                                         - 15 -
probative evidence that the doctors denied, substantially delayed,

or intentionally interfered with Stewart’s treatment.   Cf. Hudson

v. McHugh, 148 F.3d 859, 863-64 (7th Cir. 1998) (jail officers’ and

nurse’s refusal to do anything about prisoner’s repeated requests

for epilepsy medicine despite knowing he did not have his medicine

constituted deliberate indifference to serious medical need).   The

doctors actively treated Stewart’s admittedly serious condition.


i.e., to evaluate him in a timely manner and transfer him to a
facility where he could receive the necessary care.” (Emphasis
added.)

     It bears repeating that Dr. Rothschild’s opinion was based
solely on his review of medical records. He did not, for example,
review the depositions of the defendant doctors. Therefore, his
conclusion that the facility was “incapable or unwilling” to
provide proper care is of little, if any, probative value. Along
this line, he was “awaiting additional documentation”, such as
those depositions; and, “[u]pon receipt of that information, [he]
anticipate[d] supplementing this report”.    That supplement, if
rendered, is not in the record.

     In any event, the relied upon passage reflects only Dr.
Rothschild’s opinion that the cumulative effect of Stewart’s care
may have hastened his death. Dr. Rothschild does not identify any
particular actions by any of the doctors that constituted
deliberate indifference; instead, he speaks of “indifference on the
part of those in authority”. (Emphasis added.) As noted, we do
not hold that there is no evidence of potentially negligent care.
Rather, there is no evidence that creates a material fact issue of
whether the doctors knew of Stewart’s grave condition and were
deliberately indifferent to it.

     Furthermore, contrary to the assertion in the dissent that a
transfer to another facility would have saved Stewart’s life, Dr.
Rothschild’s affidavit does not opine that Stewart would have lived
if he had been treated at a different facility (based on the
doctor’s reviewing only the medical records, this is not
suprising); and we have found no other evidence in the record
stating that Stewart would have lived had he received the treatment
the dissent maintains was deliberately denied him.

                              - 16 -
“Disagreement with medical treatment does not state a claim for

Eighth Amendment indifference to medical needs.”         Norton, 122 F.3d

at 292.

     At most the evidence was merely colorable on the critical

issue of whether the doctors’ conduct amounted to deliberate

indifference   to   the   treatment    of   Stewart’s   decubitus    ulcers.

Summary judgment for the Appellee physicians was proper, because

“there is no issue for trial unless there is sufficient evidence

favoring the nonmoving party for a jury to return a verdict for

that party”.   Anderson, 477 U.S. at 249.

                                      C.

     As for Appellants’ state law claims, summary judgment was

proper, pursuant to Sparks v. Kim, 701 So. 2d 1113 (Miss. 1997),

which held that prison physicians are protected by qualified

immunity for medical treatment decisions, unless “they commit

willful wrongs or malicious acts”.          See id. at 1116-17 (quoting

Hudson v. Rausa, 462 So. 2d 689, 696 (Miss. 1984)).                 As shown

supra, “[t]he fact that the treatment was inadequate for the

severity of [the] condition does not indicate that the doctors in

question committed ‘willful wrongs or malicious acts’”.               Id. at

1117.9




     9
      The dissent does not address the plaintiff’s state law
claims. Thus, we presume that it joins the majority opinion on
this issue.

                                 - 17 -
                               III.

     The record simply does not reflect the parade of horrors

trumpeted by the dissent — far from it.    But, be that as it may,

there is no material fact issue to support the requisite deliberate

indifference necessary for liability.     Accordingly, the judgment

for Appellees is

                                                          AFFIRMED.




                              - 18 -
POLITZ, Circuit Judge, dissenting:



     In the majority’s view, Stewart’s death was, at worst, the

product of     mere negligence.       If these appellees are guilty of

nothing more than a bit of innocuous medical malpractice, then the

barrier to a deliberate indifference claim has been rendered

virtually impenetrable.        I respectfully dissent, as I cannot

subscribe    to   the   majority’s     view    of   the    eighth      amendment,

effectively rendering its vaunted protections an empty promise.

     As an unsanitized and uncontested view of the evidence fully

demonstrates,     appellees    --    starkly    aware     of    Stewart’s   dire

condition -- denied him treatment that could have saved his life.

Without     providing   even   the     most    rudimentary        of   medicinal

functions,10 appellees averted their heads as Stewart slowly and

painfully died.

     There is no question but that Stewart suffered from ill health

when he was incarcerated in 1993, and that his health worsened

throughout 1994.    But it was after a stay in the prison hospital,

where he was neither moved nor bathed during a five-day period,

that his condition drastically deteriorated.                   Through what one




     10
      The majority insists that, whatever the level of treatment
Stewart received, it was more than “rudimentary.”      Though the
majority understandably dislikes this characterization, the facts
speak for themselves.
physician has called “a total lack of observation,”11 Dr. Dial,

Stewart’s treating physician, overlooked Stewart’s skin wounds.

Though the nurses’ notes clearly stated that Stewart was unable to

move and was incontinent of bowel and bladder, he was nonetheless

released from the hospital.     Dr. Dial did not examine Stewart on

the days the nurses made these notations; nor did he review their

notes before discharging Stewart.         The day after Stewart left the

hospital, Dr. Dial received notification that Stewart had developed

a twenty-five centimeter stage IV decubitus ulcer -- an advanced-

stage bed sore caused by extended periods of immobility -- with

necrosis over 95% of its area.    Dr. Dial prescribed a treatment of

cleansing, dressing, and antibiotics, but he never bothered to

confirm that his orders were followed or to check to see whether

the treatment was effective.

     When Stewart was returned to his prison unit, he gave off a

foul body odor and feared taking a bath.        Because the wheelchair-

bound Stewart could not bathe himself, he was forced to rely on his

cell-mate who saw that both sides of Stewart’s hips were bloody and

raw and that his clothes stuck to his body.          Although Stewart’s

cell-mate attempted to clean the wounds, Stewart’s wounds -- which

emitted a fetid smell and from which there was substantial drainage

-- worsened.       Stewart became feverish and delirious, lost the

ability to control both his bladder and his bowel functions, and


     11
          See infra at 8.

                                 - 20 -
urinated and defecated on himself.         Throughout this period, no

physician saw Stewart.    The cell-mate signed Stewart in for sick

call a number of times but he was not then examined by any medical

personnel.

     After the passage of two weeks Stewart finally was admitted to

the prison hospital by Dr. Kim.      On admission, Dr. Kim noted that

Stewart had developed multiple decubitus ulcers, including a large

ulcer with necrotic tissue on his buttocks and one on his foot.

Examination of the ulcers revealed a “very deep infection” and

cultures from the ulcers indicated contamination by urine or feces.

Dr. Kim ordered that Stewart’s dressings be cleaned and changed

frequently and that he be repositioned every few hours.            But, as

Dr. Kim was fully aware, chronic medical understaffing rendered it

extremely improbable that Stewart would receive anything like the

treatment medically deemed necessary.12         The dilemma brought on by

the dearth of staff was exacerbated because the nurses avoided

treating Stewart, whose putrid infections disgusted them.                Non-

medical personnel drew the task of cleaning and dressing Stewart’s

wounds to the extent that such occurred.

     The   necrotic   tissue   quantity    so    worsened   that   Dr.    Kim

consulted a local surgeon, Dr. Wright, who stressed the need for



     12
      See infra at 8. The majority insists that Dr. Kim simply did
not understand the severity of the problem. The record does not
bear out this convenient inability by a physician to grasp the
seriousness of a situation in which her orders cannot be followed.

                                  - 21 -
intensive     and    vigorous       physical      therapy.         This   advice   was

disregarded.13       Fully aware that the prison hospital lacked the

personnel and facilities to implement Dr. Wright’s recommendation,

Dr. Kim made no effort whatsoever to transfer Stewart to a facility

where he could have received this essential care.14

       Instead, Dr. Kim referred Stewart to the care of another

prison physician, Dr. Knutson, who continued the same regimen

already     proven    to    be    totally   inadequate       to    arrest   Stewart’s

deepening infection.             At this stage, Dr. Knutson was fully aware

that    Stewart     was    arthritic,    incontinent,        and    bed-ridden;    his

longstanding decubitus ulcers had alarmingly worsened; and he could

no longer feed himself.             The nurses’ notes charted amber, foul-

smelling urine and yellow, foul-smelling pus that discharged from

Stewart’s     penis        and     gathered       around     Stewart’s      catheter.

Subsequently, the notes alerted, Stewart’s bladder became hard and

turgid, and his urine became thick and cloudy.                       The notes also

documented repeated complaints by Stewart of a sore throat and



       13
      Again, the majority quibbles with my terminology. The record
reflects that Dr. Kim received Dr. Wright’s advice -- which she
herself had procured -- but refused to take any steps to implement
his recommendation. She brushed aside his recommendation solely on
the ground that Stewart’s condition was not “serious” enough to
warrant something as basic as physical therapy.
       14
      The majority faults me for failing to discuss in more detail
the treatment Stewart did receive from Dr. Kim. There is no need
for me mention that care, as the majority already assigns more
weight to that treatment than it can bear -- the few affirmative
steps Dr. Kim took to treat Stewart were woefully deficient.

                                         - 22 -
widespread pain.      According to the notes Stewart, who appeared

confused, was moaning and crying.                 Like Dr. Dial, Dr. Knutson

failed to review the nurses’ notes.

     Dr.   Knutson    thereafter   left       on    a   four-day    Thanksgiving

holiday, during which neither he nor any other physician saw

Stewart.    When Dr. Knutson returned he observed that Stewart

“appeared like he was going to die.”                 While conceding that he

believed Stewart had a serious urinary tract infection,15 Dr.

Knutson inexplicably failed to prescribe any antibiotics.                Stewart

was dehydrated and was not eating; he had become nonresponsive and

had multiple abnormalities in lab values. Nonetheless, Dr. Knutson

decided against an immediate transfer and delayed two days before

transferring Stewart to a proper, readily-available facility.                   In

the meantime, Dr. Knutson took no blood samples to determine

Stewart’s nutrition levels and took no cultures to ascertain the

extent of his infection.    Stewart was grossly malnourished and the

infection was severe.

     The   treating   physician    at       the    transferee      facility,   Dr.

Schlessinger, described Stewart’s condition on arrival thusly:


     15
      The majority suggests that Dr. Knutson did not know that
Stewart was suffering from an infection. His deposition otherwise
informs:

     Q [Counsel]: So, you think [Stewart has] got a urinary tract
     infection that’s gonna make him die and you don’t give him any
     antibiotics; is that correct?
     A [Dr. Knutson]: Correct.
R. 362.

                                   - 23 -
       He was very debilitated. He would open his eyes, but he did
       not respond to commands. . . He was very dehydrated. . . .
       I think . . . the most stunning thing was that he was very dry
       and that he had huge decubitus ulcers. . . . I have lots of
       patients -- the reason I remember Mr. Stewart so distinctly is
       that I would say that he had the sad distinction of probably
       having the worse decubitus ulcers that I had ever seen in my
       life. He had pressure sores with breakdowns. . . . [O]ne of
       the hips . . . was really dramatic. You could see exposed
       bone, lots of necrotic tissue. [The sores] were horrendously
       foul smelling.

Approximately one week after he was admitted Stewart died from

sepsis, a toxic condition resulting from infection.

       The undisputed facts reveal a sad truth.                 For over three

months Stewart lived in agonizing discomfort and pain, slowly

approaching death.        At least three different physicians could have

prevented this painful death by administering a relatively simple

course of treatment -- antibiotics and physical therapy.                 Instead,

they looked away as Stewart literally rotted away, his flesh

decaying, his body soaked in his own feces, urine, blood, and pus.

Even at the final stage, when Stewart’s death appeared imminent, a

conscious decision was made to postpone his transfer to a hospital

for two possibly crucial days.

       Despite all of this, the majority dismisses the claim that

Stewart’s prison physicians were deliberately indifferent to his

serious medical needs based on appellants’ purported failure to

show        that   “the   doctors    denied,        substantially   delayed,    or

intentionally        interfered     with     Stewart’s   treatment.”16     In   my


       16
            Slip op. at 15-16.

                                           - 24 -
judgment, this finding ignores reality. Dr. Schlessinger testified

that Stewart’s physicians should have prescribed antibiotics and

that they should have ordered an aggressive regime of physical

therapy.    After    fully   reviewing    Stewart’s   medical   records,

appellants’ medical expert -- Dr. Rothschild, Head of the Genetics

and Geriatrics Department at the Louisiana State University Medical

Center in New Orleans -- agreed with Dr. Schlessinger’s conclusion

that the care Stewart received fell below the acceptable standard

of treatment.17   Dr. Rothschild could find no evidence that Stewart

ever received appropriate treatment “necessary to deal with his

life-threatening condition.”18     According to Dr. Rothschild, Dr.



     17
      The majority dismisses Dr. Rothschild’s affidavit as lacking
in probative value because he purportedly failed to review the
doctors’ depositions and planned to (but did not) supplement his
affidavit upon review of such additional documentation. Perhaps
Dr. Rothschild reviewed the depositions but declined to modify the
affidavit because his conclusions remained the same. But even if
Dr. Rothschild reviewed nothing other than Stewart’s medical
record, this does not undermine the force of his conclusions for
purposes of summary judgment. As a review of his resume confirms,
Dr. Rothschild is an impressively qualified physician.         The
question whether to accept his opinion and the weight to be given
to it should be reserved for the jury.
     18
      Contrary to the majority’s assertion and as the following
discussion reflects, Dr. Rothschild’s affidavit clearly identifies
acts committed by Stewart’s individual physicians which legally may
be classified as “deliberate indifference” -- for instance, the
affidavit states that “one physician [acknowledged] that Mr.
Stewart [could not] be adequately treated at [the prison]
facility,” but, despite this acknowledgment, did not transfer
Stewart. The fact that Dr. Rothschild does not use the legal term
“deliberate indifference” in cataloguing such acts does not mean
that he has failed to identify factual situations that legally
amount to deliberate indifference.

                                 - 25 -
Dial overlooked Stewart’s condition and released Stewart -- an

enervated, seriously ailing man -- from the hospital only through

a   “total   lack   of   observation.”         Further,   as   Dr.   Rothschild

observed, hospital records reflect an acknowledgment by Dr. Kim

“that Mr. Stewart cannot be adequately treated at this facility

because there are simply not enough personnel to provide the

intensive care necessary to treat him.”19            The same records note

that Stewart’s condition was “severe.”              A review of Stewart’s

medical files left Dr. Rothschild unable to reconcile “[t]he

urgency of the need for adequate care . . . with the apparent lack

of available . . . staff . . . to carry out the [physician’s]

orders.”      Referring    to   Dr.     Knutson’s    failure    to    prescribe

antibiotics -- despite evidence of a urological infection of which

he was aware -- Dr. Rothschild remarked upon the lack of any

“indication of proper . . . management of this condition.”                 The




      19
      The majority points out that Dr. Rothschild’s affidavit
referred to an anonymous physician, not Dr. Kim. This is true, but
it is clear that Dr. Rothschild must have been referring to Dr.
Kim, since she is the only physician who treated Stewart’s
decubitus ulcers during the relevant time period and who admitted
to an awareness that the prison hospital was not equipped to care
for Stewart. If, however, a physician other than Dr. Kim made the
statement in the record, that only strengthens my argument -- two
doctors, not one, expressly recognized that Stewart would not
receive the prescribed treatment so long as he was at the prison
facility.

                                      - 26 -
failure to transfer a dying Stewart out of the prison hospital, Dr.

Rothschild suggested, led to his death.20

     In     the   face   of   this   evidence,   I    cannot   understand   the

majority’s conclusion that appellants failed to show knowledge on

the part of each physician “that his [or her] acts or omissions

subjected Stewart to an excessive risk of harm.”21             What the record

abundantly shows is a failure to undertake even the most basic

examination and treatment of a gravely ill patient before releasing

him from the prison hospital; a failure to transfer him with full

awareness that the prison’s facility lacked the means to care for

him; and a failure to prescribe sorely needed antibiotics.              To me

it appears painfully apparent: if a physician knows that a patient

will not receive adequate care unless he is transferred, but fails

to transfer him to another facility, that physician knows the

patient will not receive adequate care.              Analogous statements can

be made of the physicians’ failure to examine and to prescribe




     20
      The majority takes issue with this assertion. Dr. Rothschild
stated, however, that the care Stewart received “amounts to an
indifference on the part of those in authority to take the action
necessary to prevent his death, i.e., to evaluate him in a timely
manner and transfer him to a facility where he could receive the
necessary care.”
     I read this statement to mean that in order to prevent
Stewart’s death, it was necessary for appellees to transfer Stewart
to a facility where he could receive appropriate care and
treatment.
     21
          Slip op. at 15.

                                      - 27 -
antibiotics to a critically ill patient suffering from infection.



     The majority brushes aside appellees’ multiple breaches with

the simple observation that doctors cannot be held accountable for

deficiencies in the medical staff. This begs the decisive question

whether doctors      who       know   their       prison     staff   is   incapable    of

administering the necessary treatment, may, consistent with the

eighth amendment, do nothing while a patient languishes unto death

for want of treatment in the prison hospital.                        In my judgment, a

doctor who understands that a patient’s only prospect of survival

depends upon a timely transfer, but does not send that patient to

an available hospital, cannot escape liability by pointing to

failings of the nursing staff.            Contrary to the majority’s view, I

would not characterize appellees’ refusal to transfer Stewart as a

mere “difference         in    opinion   as       to   the   appropriate     method    of

treatment under the circumstances.”22                   No physician presumed to

suggest that the prison facilities provided a viable alternative

course of treatment for advanced decubitus ulcers from which

Stewart      suffered;        paper   orders       that      reasonably     cannot    be

implemented should provide no release from accountability.                            Nor

should the failure to prescribe antibiotics in the face of a raging

infection reflect a reasonable alternative medical judgment.




     22
          Slip op. at 10.

                                         - 28 -
     Under Estelle v. Gamble23 and Farmer v. Brennan24 a prisoner

establishes     deliberate   indifference   by   showing   that   a   prison

official “kn[e]w[] of and disregard[ed] an excessive risk to inmate

health.”25    If the facts proven by appellants herein do not satisfy

that standard, I am forced to the conclusion that under the

majority’s evaluation no factual scenario ever will.

     I therefore must dissent.




     23
          429 U.S. 97 (1976).
     24
          511 U.S. 825 (1994).
     25
          Id. at 837.

                                   - 29 -
