Government Liability Update

Because Law Did Not Clearly Establish That Prison Policy on Prioritizing Medication of Hepatitis C Patients Was Unconstitutional, State Official Entitled to Qualified Immunity

In Carley v. Aranas, the 9th Circuit Court of Appeals reversed a district court order denying a motion for summary judgment based on qualified immunity.  The plaintiff was an inmate in state prison.  She was diagnosed with Hepatitis C in 2013.  In 2013, the FDA began approving direct acting antivirals as a new treatment that cured Hep C in 95 to 995 of cases.  The drugs were often costly, and were not recommended for all Hep C patients until 2015.  The price of the drugs gradually lowered.  2014 National Hep C policy recommended immediate treatment be prioritized for the most advanced patients; in 2015 the policy changed to recommending treatment for all chronic Hep C patients except those with short life expectancies.  The policy recognized that state prisons and jails may not have the financial leverage to obtain cost effective treatment.  The plaintiff's expert contended this policy set the standard of care for Hep C treatment.  Federal prison guidelines between 2014 and 2018 recommended prioritizing patients according to how advanced the disease was.  The state department of correction guidelines at issue reflected the prioritization guidelines of the federal prison guidelines.  The plaintiff's condition from 2013 and 2018 was never advanced enough to qualify for DAA treatment under the department of correction guidelines, but met the prioritization guidelines of the national policy.  After exhausting grievances, the plaintiff sued the former medical director of the state department of corrections, who signed off on the department of corrections policy, as well as other prison officials, alleging deliberate indifference in her treatment in violation of the 8th Amendment.  The district court granted summary judgment to all defendants  except the former director.  The court concluded that the former director had personally participated in the alleged violation, and there was an issue of fact on whether he was deliberately indifferent to the plaintiff's serious medical needs.

The 9th Circuit ruled that the district court had erred in failing to address the second prong of qualified immunity:  Whether the alleged misconduct had violated clearly-established law.  Even assuming that the defendant violated the plaintiff's constitutional rights, he was entitled to qualified immunity unless the plaintiff could demonstrate that the defendant knew or should have known that he was violating the plaintiff's 8th Amendment rights.  The constitutional question must be beyond debate.  Case law establishing the general rule that prison officials are deliberately indifferent when they know of and disregard an excessive risk to inmate health is too broad to put officials on fair notice of their constitutional obligations.  Similarly, case law establishing that prison doctors are deliberately indifferent when they fail to provide or delay providing necessary medical treatment is too broad to establish a particular constitutional violation.  The question was whether a prison medical director between August 2013 and May 2018 would have been on notice that the department of corrections Hep C policy was
unconstitutional at the time. The appropriate inquiry is not whether evolving medical standards prescribed a course of best treatment and practice, but whether the medical standard was so well established that the failure to prescribe the course of treatment could only be considered deliberate indifference within the meaning of the 8th Amendment. The courts addressing the 8th Amendment standard for treating Hep C positive inmates had reached different conclusions.  The standard therefore could not be beyond debate.  The former director was therefore entitled to qualified immunity.

Police Officers Entitled to Qualified Immunity for Following Paramedic's Advice in Restraining Suspect; Paramedic Entitled to Qualified Immunity Due to Unclear Law

In Perez v. City of Fresno, published April 15, 2024, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for the defendant city, police officers, and paramedic.  The sheriff’s office received a call of a man acting erratically, including sprinting through the street.  City officers encountered the plaintiffs’ decedent before deputies could respond. The defendant officers encountered the plaintiffs’ decedent acting erratically, and determined he was under the influence of a controlled substance.  According to the officers, to prevent him from darting into traffic or charging the officers, they seated him on the curb and placed him in handcuffs.  The dispatched deputies found the suspect in handcuffs and surrounded by city officers.  A city officer called emergency medical services to facilitate an involuntary psychiatric detention of the suspect.  While awaiting an ambulance, the decedent stood up and refused to comply with officers’ instructions.  Several officers took the suspect to the ground to prevent him from running into traffic.  The suspect’s face repeatedly hit the ground. An officer lifted the suspect’s head off the ground with a towel, while another confirmed the suspect could breathe.  While the suspect was lying on his stomach, he kicked.  The officers restrained the suspect’s legs, then removed the restraint 30-60 seconds later when the ambulance arrived.  The EMS paramedics brought out a backboard.  The officers removed the towel and assisted the paramedics in applying the backboard.  The suspect yelled he could not breathe.  A defendant paramedic nevertheless told one of the officers to sit on the backboard.  The officer sat on the backboard for 90 seconds while other officers applied pressure.  After the seated officer stood up, the paramedics continued securing the suspect to the backboard then turned him over.  Once the suspect was on his back, the paramedics discovered he did not have a pulse.  The suspect passed away.  The coroner attributed the death to compression asphyxia during restraint with methamphetamine toxicity as a significant contributor.  The suspect’s family sued the officers and paramedic under 42 U.S.C. section 1983 for violations of the 4th and 14th Amendments, and the city and county for Monell liability based on failure to train.  The district court granted the defendants summary judgment, finding the individuals entitled to qualified immunity, and finding insufficient evidence of deliberate indifference in training.

The panel ruled that the officer defendants were entitled to qualified immunity.  The only use of force the plaintiffs challenged was that taking place after the paramedics arrived, including the paramedics’ determination that the suspect needed to be placed on a backboard to facilitate transport to the hospital, and the paramedic instructing the officers to assist in securing the suspect to the backboard by sitting on him while he was prone.  The officers testified that they defer to medical personnel that respond to an emergency scene on medically-related matters.  Existing case law holding that pressing down an erratically-behaving suspect who protests he cannot breathe does not address officers acting at the direction of medical personnel.  Existing law did not clearly establish the officers were required to second guess the paramedics on medical care.  The majority also rejected the argument that the officers’ constitutional violation was obvious.  It was not obvious that applying the backboard in this manner, as directed by a medical professional trained to respond in emergency situations, would violate the Constitution. The court also rejected the argument that the officers were not entitled to qualified immunity because they departed from their training.  Case law does not establish that any violation of police policy or guidance is, in and of itself, sufficient to deny qualified immunity.  Official training and guidance can influence the qualified-immunity analysis, but they are not determinative.  Even if the officers contravened their training, that would not defeat qualified immunity in this case.  The paramedic was also entitled to qualified immunity.  The law did not clearly establish at the time that a paramedic a paramedic restraining a person to secure the person for medical transport could be held liable for a constitutional violation under either the 4th or 14th Amendment.  There is no Supreme Court or 9th Circuit precedent establishing constitutional liability under similar circumstances.  Authority from other circuits looks to whether paramedics are acting in a law-enforcement capacity (which can give rise to a section 1983 claim) or a medical capacity (which is analyzed for medical malpractice).  There was no evidence from which a reasonable jury could conclude that the paramedic was acting in a law-enforcement capacity during his interaction with the suspect.  The evidence was that the suspect was being restrained so that he could be transported for treatment, not so that he could be arrested or punished.  Due to the lack of precedent imposing constitutional tort liability on a paramedic in this situation, the paramedic is entitled to qualified immunity.  Finally, absent a pattern of excessive-force incidents by untrained officers that resulted in the outcome here, the plaintiffs could not establish Monell liability for failure to train.  Further, there was evidence the agencies at issue maintained policies to prevent restraint and positional asphyxia.  While two officers testified they were not trained on prone-restraint asphyxia, the possible inadequate training of two officers is insufficient to support a Monell claim.

One judge concurred in the grant of qualified immunity to the paramedic, and to the affirmance of summary judgment on Monell liability, but disagreed that the officers were entitled to qualified immunity.  The judge opined that federal case law, departmental guidance, and common sense gave officers fair warning that applying continuous force to the back of a prone person who claims he cannot breathe is constitutionally excessive.

School District Did Not Violate Confidentiality of Medical Information Act by Requiring Employee to Provide Verification of COVID-19 Vaccination Status or Undergo Weekly Testing

In Rossi v. Sequoia Union Elementary School District, published August 25, 2023, the Fifth Appellate District affirmed dismissal after demurrer was sustained in this case and in two other related appeals arising out of similar circumstances.  During the State of Emergency declared due to COVID-19, the State Public Health Officer issued an order requiring K-12 schools to verify the COVID-19 vaccination status of all school workers.  The plaintiff was providing in-person classroom assistance when the order issued.  The plaintiff repeatedly refused to disclose her vaccination status or undergo weekly testing.  After attempts to accommodate her with at-home employment, the district eventually terminated her employment.  The plaintiff sued the school district under the Confidentiality of Medical Information Act, Civil Code section 56 et seq.  She alleged causes of action for discrimination due to the plaintiff's refusal to authorize a release of her medical information (Civil Code section 56.20(b)) and for unauthorized use of her medical information, in violation of section 56.20(c).  The trial court sustained the district's demurrer without leave to amend.

The appellate court held that the section 56.20(b) claim was properly resolved by demurrer.    Section 56.20(b) provides that nothing in the section shall prohibit an employer from taking such action as is necessary in the absence of medical information due to an employee's refusal to sign an authorization permitting a health care provider to release information to others.  Where an employer demonstrates that it acted out of a legal necessity to comply with a lawful order, the exception's application can be determined as a matter of law, because it turns on interpretation of the order.  Here, there was no room for factual debate on how the district could have complied with the health order's requirements other than directing her to stay home, and terminating her when it was clear she was never going to test.  As for the section 56.20(c) cause of action, the trial court properly sustained the demurrer because the plaintiff failed to plead a prima facie case that her medical information was "disclosed."  It did not appear she could save her complaint by amendment, so the trial court properly sustained the demurrer without leave to amend.

14th Amendment Claim for Failure to Protect Pretrial Detainee Mental Patient from Fellow Patient Requires Showing of More than Negligence

In Alexander v. Nguyen, published August 25, 2023, the 9th Circuit affirmed a district court's grant of summary judgment in a 42 U.S.C. section 1983 case.  The plaintiff was a pretrial detainee who was being treated at a state mental hospital until he was competent to stand trial on a criminal charge.  While he was there, a fellow patient struck his head with a fist.  The staff considered multiple factors, and determined that the plaintiff should not be moved out of the unit.  Instead, they took other measures in an attempt to prevent a further attack.  Less than two weeks later, the patient attacked the plaintiff again.  The staff then decided to transfer the plaintiff to another unit.  There was no further violence toward the plaintiff while he was at the hospital.  The plaintiff sued the psychiatrist in charge of his unit, alleging a violation of his 14th Amendment right to substantive due process.  The psychiatrist moved for summary judgment, arguing that he had not violated the plaintiff's rights, and that he was entitled to qualified immunity.  He supported the motion with an expert affidavit that the psychiatrist had acted within the standard of care.  The plaintiff did not offer any evidence disputing the affidavit.  The district court granted the psychiatrist summary judgment on the second prong of qualified immunity:  That it was not clearly established that his actions violated the Constitution.

The 9th Circuit affirmed on a different ground, the first prong of qualified immunity:  That the plaintiff could not establish denial of appropriate medical care in violation of the 14th Amendment.  Pretrial detainees' 14th Amendment claims for violation of the right to adequate medical care are determined under an objective deliberate indifference standard.  Under that standard, mere lack of due care is not enough to show a constitutional violation.  The plaintiff must prove someting more than negligence but less than subjective itnent--something akin to reckless disregard.  Similarly, a patient involuntarily committed to a state hospital alleging a violation of the constitutional right to safe conditions, decisions made by appropriate professionals are presumptively valid, and liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.  Liability requires a finding of conscious indifference amounting to gross negligence.  Here, there is no evidence that the psychiatrist failed to act reasonably in response to the first attack on the plaintiff.  The benefit of hindsight from the fact that the plaintiff was attacked a second time does not show the psychiatrist's original decision was unreasonable.  There was therefore no violation of the plaintiff's constitutional rights.

Government Code Section 815 Does Not Bar Quantum Meruit Actions for Statutory Reimbursement

In County of Santa Clara v. Superior Court (Doctors Medical Center of Modesto), published July 10, 2023, the California Supreme Court reversed a lower appellate court decision directing a trial court to sustain a demurrer.  Under the Knox-Keene Health Care Service Plan Act of 1975, Health & Safety Code section 1304 et seq., if a medical provider provides emergency medical services to a patient enrolled in a health care service plan, the plan must reimburse the provider. (Health & Safety Code, § 1371.4, subd. (b).)  If the plan does not have a contract with the provider addressing the reimbursement rate, the plan must pay the provide the reasonable and customary value of the care provided, under Cal. Code Regs., tit. 28, § 1300.71, subd. (a)(3)(B). Under case law, if the plan fails to pay the reasonable and customary value of the services, the provider may sue the plan for reimbursement under a quantum meruit theory.  Real party hospitals provided emergency services to persons enrolled in a health care services plan operated by the petitioner county.  The  hospitals submitted reimbursement claims to the county.  The county paid only a portion of the amount claimed.  The hospitals sued the county for the remaining amounts, based on the Knox-Keene reimbursement provisions.  The trial court found that the hospitals could state a quantum meruit claim against the county.  On a writ petition by the county, the appellate court ruled that the cause of action was barred by Government Code section 815, which immunizes public entities from nonstatutory causes of action seeking damages.

The Supreme Court reversed.  The liability and immunity provisions of the Government Claims Act, such as section 815, are directed toward tort claims.  Government Code section 814 provides that nothing in this part affects liability based on contract or the right to obtain relief other than money or damages against a public entity or employee.  The Government Claims Act's liability and immunity provisions do not bar quantum meruit actions seeking statutory reimbursement, such as the ones in this case.  The legislative history of the Act, and appellate decisions interpreting the Act, establish that the Act's immunity provisions are intended to limit public entities' exposure to liability for money damages in tort cases, not every conceivable claim that might be pressed against a public entity.  That the hospitals must present claims to seek damages does not subject their causes of action to the Act's liability or immunity provisions.  The claims presentation requirements of the Government Claims Act are broader in scope than the Act's public entity immunity or liability provisions.  The court also distinguished cases holding that private parties who fail to enter into legal contracts with public entities may not use quantum meruit or promissory estoppel theories to recover damages from the entities.  Those cases do not apply to quantum meruit claims seeking damages based on statute, not contract.

 

 

Individual School Districts May Not Require COVID-19 Vaccination

In Let Them Choose v. San Diego Unified School District, published November 22, 2022, the Fourth District Court of Appeal, Division 1 affirmed a trial court judgment determining that the defendant school district's COVID-19 requirements were preempted by state law.  The district adopted a "Vaccination Roadmap" requiring students 16 or older to be vaccinated for COVID-19 in order to attend in-person classes and participate in sports and other extracurricular activities.  Unvaccinated students in this group were involuntarily placed on independent study.  A nonprofit corporation and the parent of a 16-year-old student filed complaints challenging the Roadmap.  The cases were consolidated.  On a motion for judgment, the trial court ruled the district's COVID-19 immunization requirements preempted.

The appellate court agreed.  Health and Safety Code section 120335 provides that a school shall not unconditionally admit students who have not been vaccinated for 10 listed diseases.  It also requires vaccination for any other disease deemed appropriate by the State Department of Public Health, after taking into consideration the recommendations of several medical groups.  In 2015, the Legislature considered whether vaccination should be mandated on a school district by school district basis.  A bill analysis explained that a statewide standard was preferred.  Cal. Code Regs., tit. 17, section 6025 provides that a school shall unconditionally admit or allow continued attendance to any pupil who has provided documentation for each immunization for listed diseases.  The Roadmap is preempted by these provisions because it both contradicts state law (conflict preemption) and enters a field already occupied by state law (field preemption).  By creating a comprehensive state procedure to determine the compulsory vaccinations for school attendance, the statute by negative-but-necessary implication provides that students who comply with state immunization requirements (and other eligibility rules) are entitled to attend schools, and that districts are not allowed to add their own vaccine mandates.  The Department of Public Health interprets the statute the same way in regulation 6025.  The court deferred to this agency interpretation.  The regulation enters a field the state has fully occupied, because the Legislature has covered the matter fully and completely, defining the who, what, when, and where of compulsory student vaccination, leaving districts no discretion in the matter.  The court rejected the multiple arguments the district made otherwise.

Whether Mother's Knowledge of Baby's Death and Request for Autopsy Established Accrual of Medical Malpractice Claim Is Issue of Fact

In Kernan v. Regents of the University of California, ordered published September 20, 2022, the First District Court of Appeal, Division 4 reversed summary judgment for the defendant Regents.  On November 4, 2016, the plaintiff went to the defendants' hospital for a procedure to rotate her healthy fetus to a head-first position.  There was no indication of any problem.  Later that night, after discharge, the plaintiff could not feel any fetal movement.  The next day, she returned to the hospital.  Doctors informed her that day that there was no fetal heartbeat, and she had suffered an interuterine fetal demise.  They told the plaintiff they could not determine the etiology of the death, and that nothing in the literature indicated an association between the procedure performed and fetal demise.  Per medical records, the plaintiff debated that day whether to have an autopsy performed. Her doctors explained that autopsies are often unsuccessful in establishing the underlying cause of the fetal death, although they can provide peace of mind.  The plaintiff denied discussing an autopsy that day.  That day, the doctors induced labor.  The plaintiff delivered a stillborn baby on November 7, 2016.  A doctor told the plaintiff an initial examination of the delivered baby, placenta, and did not show indicators as to why the baby died.  At some point after the delivery, the plaintiff ordered an autopsy.  A doctor met with the mother on July 10, 2017 to discuss the autopsy results.  The doctor told the plaintiff her case had been discussed during a mortality and morbidity conference at the hospital, but the doctor refused to answer the plaintiff's questions about what was said.  The plaintiff states that during this meeting, she first suspected medical negligence caused the death.  She served notice of intention to sue on November 6, 2017, and filed suit on February 2, 2018.  The trial court granted summary judgment on the ground that the lawsuit was filed outside the one-year statute of limitations under Code of Civil Procedure section 340.5.

The appellate court ruled that the date of accrual of the medical malpractice action was an issue of fact.  The statute of limitations began running when the plaintiff suspected or should have suspected that her injury was caused by wrongdoing.  Based on the notice of intent she served, which extended the statute of limitations 90 days, the plaintiff's action was timely if accrual was on or after November 6, 2016.  The defendants contended that the cause of action accrued on November 5, 2016, when the plaintiff learned of the fetus's death and records indicated she discussed an autopsy.  The evidence did not establish without dispute that the plaintiff subjectively suspected negligence that day.  The records state that the plaintiff was interested in an autopsy but was undecided.  The plaintiff herself denied discussing an autopsy that day.  Further, in light of the doctors' discussion with the plaintiff, a reasonable trier of fact could conclude the plaintiff discussed an autopsy to seek closure and obtain information, not because she subjectively suspected wrongdoing.  Further, the plaintiff remained under the doctors' care until she delivered the fetus on November 7.  A fact trier could conclude that the plaintiff had not lost trust in her doctors at that point.  On the objective prong, reasonable minds could differ on whether the events of November 5 the plaintiff should have suspected the defendants' wrongdoing on November 5, given that the doctors did not suspect wrongdoing, and the autopsy report corroborates the plaintiff's understanding that fetuses sometimes die in utero for unknown reasons.

"Watchful Waiting" Treatment of Prisoner's Medical Problem That Was Worsening Violates Clearly Established Law

In Stewart v. Aranas, published May 4, 2022, the 9th circuit affirmed the district court's denial of qualified immunity to prison officials in a prisoner's lawsuit under 42 U.S.C. section 1983.  According to the summary of facts in the majority opinion, the prisoner complained to prison staff of severe pain when urinating and difficulties in urination.  Staff examined him, gave him generic medication, and sent him on his way.  Over the next three years, the prisoner's urethra, testicles, and abdominal areas grew inflamed.  The prisoner continued to complain to prison staff.  They did not change their treatment.  The prisoner was transferred to another facility in an eight-hour ride.  The staff at the new facility initiated emergency medical care.  A catheterization drained fourteen pounds of fluid from the prisoner's bladder and unrinary system.  He underwent prostate surgery.  He claims long-term kidney disease, erectile dysfunction, urine build up, and pain.  He sued the prison officials alleging deliberate indifference to serious medical needs.  The officials appealed denial of qualified immunity on the second prong of the immunity--the law was clearly established.

The 9th Circuit agreed that the district court properly denied qualified immunity on the second prong.  The prison officials claimed that no clearly established law barred their "wait and see" treatment plan for the prisoner's enlarged prostate.  But case law establishes that denying, delaying, or intentionally interfering with medical treatment can violated the constitution.  At some point, "wait and see" becomes deny and delay.  The prisoner's condition sharply deteriorated, yet prison officials never deviated from their "wait and see" treatment plan.  A delay in treatment can violated the constitution if it results in injury.  Further, it is clearly established that prison officials violate the constitution when they persist in a treatment known to be ineffective.

A concurring judge agreed that a reasonable prison official with awareness of a factual predicate like the one set forth in the majority opinion would have violated clearly established rights by a treatment plan of "watchful waiting."  But the judge opined the records showed a different factual predicate than the one set forth in the opinion.  Since the defendants appealed only denial of qualified immunity on the second prong, the first prong--whether the plaintiff's constitutional rights were actually violated--was not an issue on appeal.

 

County Immune from Liability to Hospital under Knox-Keene Act

In County of Santa Clara v. Superior Court (Doctors Medical Center of Modesto), published April 26, 2022, the Sixth District Court of Appeal issued a writ directing a trial court to sustain the petitioner county's demurrer to the real party hospitals' complaint.  The county operates a health care plan licensed under the Knox-Keene Health Care Service Plan Act, Health & Safety Code section 1340 et seq.  The hospitals provided emergency services to members of the county's healthcare plan.  The hospitals submitted claims to the county for over $144,000, the amount the hospital alleges is the reasonable value of the services provided.  The county reimbursed the hospital approximately $28,500.  The hospitals sued the county for reimbursement.  It asserted tort and implied-in-law causes of action.  The trial court sustained the demurrer without leave to amend as to the tort causes of action, and granted leave to amend the breach of implied contract cause of action.  In the operative complaint, the hospital asserted a single cause of action alleging implied-in-fact and implied-in-law contracts with the county.  The trial court overruled the demurrer to the complaint, ruling that the hospitals stated facts sufficient to constitute a cause of action for quantum meruit or implied-in-fact contract.

The appellate court ruled that the trial court erred.  The implied-in-law contract/quantum meruit claim is barred by Government Code section 815, which immunizes public entities from liability on common law theories.  Case law establishes that section 815 bars quantum meruit actions against public entities.  The appellate court rejected the hospitals' argument that the Knox-Keene Act imposed a mandatory duty upon the county that gave rise to a cause of action under Government Code section 815.6.  Section 815.6's application requires that the enactment be obligatory, requiring that a particular action be taken or not taken; and that if the public entity or officer is under an obligation to function, that the function itself not involve the exercise of discretion.  While Health & Safety Code section 1371.4(b) imposes a duty on the county to reimburse the hospitals, the statute calls for reimbursement of the "reasonable and customary value" of the services performed.  The statute therefore gives the county discretion in the amount of reimbursement to pay.  The section therefore does not create a purely mandatory duty, and does not authorize the hospitals' implied-in-law contract cause of action.  No other statute authorizes the hospitals' action for damages.  The complaint also alleges an implied-in-fact contract.  Because Government Code section 815 does not affect liability based on contract, it does not preclude an action for breach of an implied-in-fact contract.  But the single cause of action is ultimately based on alleged breach of a noncontractual duty--the county's alleged obligation under county ordinances and the Knox-Keene Act to pay for the care and treatment the hospitals rendered.  Because the suit is based on alleged breach of statutory duty rather than alleged breach of promise, its nature is tortious and the county is immune from suit under section 815.  Because the hospitals failed to show how they could amend the complaint to save the action, they were not entitled to leave to amend.

 

 

Jail Medical Personnel Not Entitled to Qualified Immunity for Allegedly Providing Inadequate Care to Inmate Displaying Serious Cardiac Symptoms

In Russell v. Lumitap, published April 13, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part an order denying summary judgment to medical providers at a county jail.  The decedent prisoner came to prison medical providers complaining of vomiting, chest pain, and anxiety.  The first nurse who saw him gave him Pepto-Bismol and referred him for a mental health screening.  The second nurse, who saw him at the mental health intake center, gave him a dose of nitroglycerin.  The decedent’s pain increased.  The nurse called the on-call doctor, who ordered the decedent be given Motrin and be screened for mental illness.  The doctor never examined the decedent in person.  The decedent received a mental health screening and was returned to jail.  The inmate then returned to the jail medical clinic complaining of more severe pain.  She knew that per policy, if nitroglycerin did not relieve the patient’s symptoms, the patient should be hospitalized.  She called the nurse at the mental health intake center, who told her of the doctor’s orders.  The nurse administered Motrin and the decedent remained for observation.  The patient consulted with another nurse, who instructed him on relaxation and gave him a heat balm.  Eventually, the nurse observed the decedent in extreme distress.  She called paramedics.  The decedent was transferred to a hospital where he died.  He had suffered an aortic dissection.  The decedent’s parents sued the various medical personnel under 42 U.S.C. section 1983, alleging deliberate indifference.  The defendants moved for summary judgment based on qualified immunity.  The district court denied the motion, finding genuine issues of material fact.

The 9th Circuit affirmed as to all but one nurse.  At the time of the decedent’s death, a deliberate-indifference claim under the 14th Amendment were decided on the same standard as 8th Amendment claims, requiring a showing of deliberate indifference.  Later, the Supreme Court held that a plaintiff alleging a 14th Amendment violation need not show subjective deliberate indifference; only that the force used was objectively unreasonable.  The 9th Circuit then applied this rule to 14th Amendment claims, requiring that the plaintiff show that the defendant made an intentional decision putting the plaintiff at substantial risk of serious harm, and then did not take reasonableavailable measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious.  The court applies this objective standard to determine whether the defendants violated clearly-established law, even where the incident occurred before the change in the law.  The standard can be met where the care rendered is so inadequate to the circumstances known to the medical staff as to amount to deliberate indifference.  At the time of decedent’s death, the 9th Circuit had found deliberate indifference where nurses and a doctor had prescribed palliative treatment in response to serious symptoms, or providing life-saving measures to an inmate in obvious need.  Further, other circuits had applied the standard to obvious symptoms of heart attack, such as those the decedent displayed here.  Under this standard, a jury could find that all of the medical personnel—except for the nurse who called the doctor, and followed his orders (entitling her to qualified immunity)—violated clearly established law by having access to information that the decedent had a substantial risk of serious injury, and providing constitutionally inadequate treatment.