Petition for Writ of Certiorari — City of Columbus v. Howard ex rel. Natural & Legal Guardian

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Supremé Court, U.S.

@, FILED

991649 APR 1. 22000

013

IN THE

SUPREME COURT OF THE UNITED STATES

THE CITY OF COLUMBUS,

MUSCOGEE COUNTY, GEORGIA and

J. E. “GENE” HODGE, IN HIS INDIVIDUAL

AND OFFICIAL CAPACITY AS SHERIFF

OF MUSCOGEE COUNTY, GEORGIA,

Petitioners,

CONSWELLA HOWARD,

BY AND THROUGH HER NATURAL AND

LEGAL GUARDIAN, STEPHANIE COBBIN, AND

STEPHANIE COBBIN, AS TEMPORARY

ADMINISTRATRIX OF THE ESTATE OF

JAMES HOWARD, JR..,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE GEORGIA COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

EUGENE HARDWICK POLLEYS, JR.

(Counsel of Record)

City Attorney

P.O. Box 1340

Columbus, Georgia 31902

(706) 653-4025

Attorney for Petitioners.

Washington, 0.C. © THIEL PRESS © (202) 328-3286

(1)

QUESTIONS PRESENTED FOR REVIEW

Do Division 1(a), beginning at page 402 of the opinion,

and Division 1(a)(i), beginning at page 405, fail to follow

Farmer v. Brennan, 511 U.S. 825, 847 (1995) (‘‘Accord-

ingly, we reject petitioner’s arguments and hold that a

prison official may be held liable under the Eighth

Amendment for denying humane conditions of confine-

ment only if he knows that inmates face a substantial risk

of serious harm and disregards that risk by failing to take

reasonable measures to abate it.’’), by ignoring the facts

of record that establish that neither the Sheriff of Mus-

cogee County nor the City of Columbus were deliberately

indifferent or were aware of decedent’s diabetic condi-

tion?

Do Divisions 1(a)(ii), (iii), and (iv), beginning at page

406 of the opinion, fail to follow Board of County Com-

missioners of Bryan County v. Brown, 520 U.S. 397

(1997), and earlier Supreme Court cases in that they

assign liability to the Sheriff of Muscogee County and

Columbus, Muscogee County on a respondeat superior

theory and on an alleged policy of inadequate medical

treatment that the undisputed record shows does not

meet the requirement of being deliberate conduct that

constitutes the moving force having a direct causal link

to Howard’s death at the hospital?

Does Division 1(b), beginning at page 409 of the opin-

ion, by concluding that “unlike an Eighth Amendment

(11)

violation, a Due Process violation does not require sub-

jective deliberate indifference,” but rather only “requires

action under color-of-law and causation,” and by further

concluding that the requirement of a state law that

“a county provide adequate medical care for its inmates’”’

(O.C.G.A. §42-5-2), together with the conclusion that

the failure of LPNs to recognize earlier “the clinical signs

and symptoms of diabetes” produced “a violation of a

constitutional right that was coupled with causation,”

constitute a departure from the constitutional standards

of Whitley v. Albers, 475 U.S. 312(2) (1986) (Due Pro-

cess Clause affords no greater protection than Cruel and

Unusual Punishments Clause), and Elder v. Holloway,

510 U.S. 510, 515 (1994) (violation of state law does

not overcome official immunity for §1983 plaintiffs),

and Estelle v. Gamble, 429 U.S. 97, 106 (1976) (negli-

gent medical diagnosis or treatment of a prisoner does

not violate Eighth Amendment); and does said divi-

sion, in citing Lugar v. Edmondson Oil Co., 457 US.

922 (1982), depart from its principles by equating the

threshold inquiry of what constitutes state action under

color of law with the establishment of liability for the

Petitioners at bar who are without question state actors?

(iit)

PARTIES TO THE PROCEEDING

Defendants-Petitioners:

City of Columbus, Muscogee County, Georgia

J.E. “Gene” Hodge, Sheriff of Muscogee County,

Georgia (now retired) (the present Sheriff of Mus-

cogee County is Ralph Johnson)

The following Defendants are not Petitioners:

Dr. Jerry Stephen Chase

Mildred Chapman, LPN

Ava J. McLeod, LPN

Lawrence Thompson, LPN

Plaintiffs-Respondents:

Conswella L. Howard, by and through her Natural

and Legal Guardian Stephanie Cobbin and Steph-

anie Cobbin, as Temporary Administratrix of the

Estate of James Howard, Jr.

Questions Presented For Review

Parties To The Proceeding

Jurisdiction

Opinions Below

(1)

TABLE OF CONTENTS

Constitutional Provisions And Statutes

Involved

Argument:

II.

III.

The Georgia Court Of Appeals Ignored The

Deliberate Indifference Standard For Eighth

Amendment Violations...............ee0.

The Georgia Court Of Appeals Imposed

Respondeat Superior Liability, Had No

Basis For Concluding That Any Deliber-

ate Or Culpable Policy Or Custom Of The

City/County Was The Moving Force That

Directly Caused The Inmate’s Death, And

Without Any Authority Stripped The Sher-

Sef OOF Oiticinl Bey . wc ec ieee cane

The Georgia Court Of Appeals Erroneously

Concluded That A Due Process Violation

Does Not Require Subjective Deliberate

Indifference And Thereby Provides Greater

Protection To Inmates Than The Eighth

Amendment, Erroneously Elevated An

Alleged State Statutory Violation Or Duty

To A Federal Constitutional Violation Or

Duty, And Erroneously Equated The Cri-

teria For Establishing The Threshold Ques-

tion Of Action Or Conduct Under Color

eoeeeeeeeeeeeneeeeeeese#e

een eoeeeee ewer em emhlUlc Oe mh OC HO HH HhlUh hUhOhUhCUhUhOhU

®es2 @4 6068460868068 HF 066 £6 6 D

(v)

Of State Law With The Ultimate Question = —*

Of Whether Or Not A State Actor Is Liable

See ek deo. dk ces eR eR eee 18

| PVEPEPECTECLEUSE CTC ee eee eee 21

APPENDICES:

_ Appendix A — Opinion and Judgment of the

Georgia Court of Appeals (July 15, 1999)....... la

Appendix B — Order of the Court of Appeals

of the State of Georgia (July 29, 1999)........ 35a

Appendix C — Order of the Supreme Court of

the State of Georgia denying certiorari

(Sam, 24, DOD ak 60s CUT eee Ree an eee 36a

Appendix D — Constitutional Provisions......... 37a

Appendix E — Other Provisions and

OP EeeTareT err: Trerre reese) eT eT 38a

TABLE OF AUTHORITIES

Cases:

Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th

Che. FPP nc cae bean eeeeueueee th euae een eees 17

Board of County Commissioners of Bryan County

v. Brown, 520 U.S. 397 (1997).......... i, 1, 16,17

Brooks v. Celeste, 39 F.3d 125, 129 (6th Cir.

2 PEC ETT CCT Cre Tey eee ree 13

Campbell v. Sikes, 169 F.3d 1353 (11th Cir.

i Seer errrrrTerorrre re eee 2,17

Collignon v. Milwaukee County, 163 F.3d

982(8) (7th Cir. 1998) ....... cece eee eens 1,14

(vt)

Cases, continued: Page

Collins v. City of Harker Heights, 503 U.S. 115

ti) rr rrr rr rere r rrr re re 1, 16

Elder v. Holloway, 510 U.S. 510, 515 (1994)... ii, 2,19

Estelle v. Gamble, 429 U.S. 97, 106 (1976) .... ii, 2, 20

Farmer v. Brennan, 511 U.S. 825, 847 (1995) ...i, 1,11

Harbert International v. James, 157 F.3d 1271

(20) Ch 2G Ge, TOUS 0 os cceseuwxesosaebere 2, 9

Hill v. DeKalb Regional Youth Detention Cen-

ter, 40 F.3d 1176, 1191 (11th Cir. 1994)...... 1,14

Howard v, City of Columbus, 239 Ga. App. 399,

G06 (IDGG) 6.6.0 k ce cds 6066 nese eee passim

Liebe v. Norton, 157 F.3d 574 (8th Cir.

SOOG) . ov cnacedeanecaneteneeeuee ene 1,33

Lugar v. Edmondson Oil Co., 457 U.S. 922

ob: | eee re tre rere er ii, 2, 20

Monell v. Department of Social Services, 436

U.S. 658 (1976) « ocuces ch oweneaeeeas esas 1, 16

Poss v. Moreland, 253 Ga. 730, 731 (1985). ........ 20

Reeves v. Collins, 27 F.3d 174 (5th Cir. 1994).... 1,12

Rodriguez v. Avita, 871 F.2d 552, 554, 555

(Sth Cir, 1000). << s snaakadeeee eee 17

Smith v. Watkins, 159 F.3d 1137, 1138 (8th

oe | ne Tee 1,17

Snyder v. Trepagnier, 142 F.3d 791 (5th Cir.

1998), cert. granted, 119 S.Ct. 863

tl.) ) irr 1,17

(vit)

Cases, continued: Page

Williams v. Benjamin, 77 F.3d 756(25) (4th

oe, | Prrrrrerrr rrr rrr re ry cr 2,18

Statutes, Regulations, and Constitutional Provisions:

28 U.S.C: $1257(a 102 Stat. G62)... wc ccc cecens ]

Mk ae rere rere Pre rs ere ye 2, 20

Eighth Amendment of U.S. Constitution ..... 11,13, 14

Fourteenth Amendment of U.S. Constitution. ...... 18

te eS | PROUT TUTCRC TTT TTT ee Te ee i, 19

JURISDICTION

The Georgia Court of Appeals rendered an opinion on

July 15, 1999 reversing a summary judgment rendered by

the Superior Court of Muscogee County on August 13,

1998 and denied a Motion for Reconsideration on

July 29, 1999 from which denial the Sheriff of Muscogee

County and the City of Columbus, Muscogee County

petitioned the Georgia Supreme Court for a writ of cer-

tiorari on August 11, 1999 that was denied on January

14, 2000. This Petition for a Writ of Certiorari is filed

within 90 days of the January 14 denial, and the statu-

tory provision believed to confer jurisdiction on the

U.S. Supreme Court to review the Judgment of the

Georgia Court of Appeals is 28 U.S.C. §1257(a) (102

Stat. 662).

As to the first question presented for review, the

Georgia Court of Appeals has rendered a decision con-

trary to Farmer v. Brennan, 511 U.S. 825 (1994), Reeves

v. Collins, 27 F.3d 174 (5th Cir. 1994), Brooks v. Celeste,

39 F.3d 125 (6th Cir. 1994), Liebe v. Norton, 157 F.3d

574 (8th Cir. 1998), Colhgnon v. Milwaukee County,

163 F.3d 982 (7th Cir. 1998), and Hill v. Dekalb

Regional Youth Detention Center, 40 F.3d 1176 (11th

Cir. 1994),

As to the second question presented for review, the

Georgia Court of Appeals has rendered a decision con-

trary to Monell v. Department of Social Services, 436

U.S. 658 (1978), Collins v. City of Harker Heights, 503

U.S. 115 (1992), Bryan County v. Brown, 520 USS.

397 (1997), Snyder v. Trepagnier, 142 F.3d 79] (5th

Cir. 1998), cert. granted, 119 S.Ct. 863 (1999), Barney

v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998), Smith v.

Watkins, 159 F.3d 1137 (8th Cir. 1998), and Campbell

v. Stkes, 169 F.3d 1353 (11th Cir. 1999).

As to the third question presented for review, the

Georgia Court of Appeals has rendered a decision con-

trary to Whitley v. Albers, 475 U.S. 312(2) (1986),

and Williams v. Benjamin, 77 F.3d 756 (25) (4th Cir.

1996), which follows it, and Elder v. Holloway, 510

U.S. 510, 515 (1994), and Harbert International v.

James, 157 F.3d 1271 (20) (11th Cir 1998), which

follows it, and Estelle v. Gamble, 429 U.S. 97, 106

(1976), and the numerous decisions which follow it;

and Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982),-

which addresses the threshold issue of what constitutes

action under color of state law for purposes of stating

a claim under §1983 rather than the issue of how a state

actor may be liable.

OPINIONS BELOW

The decision of ‘the Georgia Court of Appeals from

which Petitioners seek review is reported at 239 Ga.

App. 399 (521 S.E. 2d 51) and is reprinted in the Appen-

dix. (This decision records the entry of summary judg-

ment for Petitioners by the Superior Court of Muscogee

County.)

Neither the denial of rehearing by the Court of Appeals

nor the denial of certiorari by the Georgia Supreme

Court are reported, but copies of both orders are repro-

duced in the Appendix.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Eighth Amendment of U.S. Constitution

Due Process Clause of Fourteenth Amendment

of U.S. Constitution

42 U.S.C. §1983

O.C.G.A. §42-5-2

Because of the fact that the Georgia Code provision

is lengthy, the texts of these provisions are set out in

the Appendix.

STATEMENT OF THE CASE

Plaintiffs alleged in Count VI of their Complaint a vio-

lation of the Eighth Amendment: “The policies and

customs and/or lack of policies to adequately and com-

petently provide medical care to inmates constitutes a

deliberate indifference to the serious needs of inmates

and is a violation of 8th Amendment to the Constitu-

tion of the United States.” (R — 26, 27) Defendants

Sheriff and City/County denied the material allegations

of the Complaint and invoked traditional defenses under

the Civil Rights Act: no respondeat superior liability,

absence of an unconstitutional policy or custom, and

qualified official immunity. (Additional R — 8-18) (The

designation of Defendants’ Answer as an additional rec-

ord was necessitated by the failure of Plaintiffs-Appel-

lants to designation 279 pages of the Superior Court

record for transmittal to the Georgia Court of Appeals. )

The grant of Defendants’ Motion for Summary Judg-

ment by the Superior Court (R — 2833, 2834) and the

opinion of the Court of Appeals show how these federal

issues were adjudicated at the trial and appellate levels.

The opinion of the Court of Appeals recites allegations

and facts from Plaintiffs’ point of view in a recital which

not only reflects the incomplete record transmitted by

Plaintiffs but which also ignores key undisputed facts of

record that were transmitted. Plaintiffs objected to and

provided no specific information to 50 interrogatories

secking to elicit particulars of their generalized claims

(Additional R — 21-31, 197-218); and, when ordered by

the Superior Court to respond, the Plaintiff guardian of

the decedent’s minor child responded with the following

refrain: “Plaintiff Stephanie Cobbin has no personal

knowledge of any information which would be respon-

sive to this Interrogatory” (Additional R — 174, 175,

219-237). The lack of knowledge of either the Sheriff

or the City/County as to decedent’s condition is reflected

in Plaintiffs’ supplemental responses to Interrogatory

Number 17 as to whom did the decedent make reason-

able request for treatment: “In particular, Howard, and

others on his behalf, made request for treatment for each

of the named defendants (excepting the City of Colum-

bus, Georgia and Sheriff Gene Hodge).” (Additional

R — 222). The absence of any participation by the

Sheriff or the City/County in any delayed medical treat-

ment is reflected in Plaintiffs’ supplemental response to

Interrogatory Number 18 as to exactly whom delayed

such medical treatment: ‘Further responding, Plain-

tiff’s counsel stated as follows: Dr. Jerry Stephen Chase,

Mildred Chapman, Lawrence Thompson, Ava McLeod,

various Sheriff personnel and health clinic personnel.”

(Additional R — 223)

Defendants Nurse Chapman, Dr. Chase, and Sheriff

Hodge were deposed by Plaintiffs; the non-defendant

Medical Director was also deposed by Plaintiffs. Their

testimony was ignored by the Court of Appeals, but it

is revealing.

Nurse Mildred R. Chapman:

(a) In May 1992 either Dr. Newsom or Dr. Chase

were always available via a beeper or pager. (pp. 40,

41) (R — 2412, 2413)

(b) Howard was never treated for a diabetic condi-

tion in the Jail Clinic, nor did she ever hear of any-

one treating him for such. (p. 50) (R — 2422)

Clinic needed to see an inmate in an emergency, nor

would he ever override a decision of the medical staff.

(pp. 92,93) (R — 2464, 2465)

(d) Inmates would be sent to the hospital without

consulting a doctor if time did not permit, nor was the

permission of the Sheriff or the warden or any jail

supervisor required to do so. (pp. 94, 95) (R — 2466,

2467)

Dr. Jerry Chase:

(a) James Howard’s symptoms of “blurry vision and

headaches and unsteady gait and heart rate could be

related to his blood pressure.” (pp. 64, 69) (R — 2227,

2232)

(b) Howard’s heart rate decreased and blood pressure

decreased and “symptoms dramatically improved after

being placed on the medication that I prescribed for

him.” (p. 74) (R — 2237)

mended he go to the emergency room” — which he did

at about 1:55 P.M. on May 24, 1992 when “I had just

apparently talked to them at that time.” (pp. 75, 76)

(R — 2238, 2239)

(d) For May 23 and 24, 1992, prior to sending How-

ard to the Emergency Room, Dr. Chase narrated his

contacts with the Jail Clinic nurses and Howard’s con-

dition:

As I stated earlier, the nurse related to me what

had transpired since the last time I talked to them.

He had been given the medication, that he improved,

that his heart rate had decreased, his blood pressure

had decreased, his symptoms had: resolved, and he

was returned to the floor. And then the following

day, he became ill again. (pp. 77, 78) (R — 2240,

2241)

(e) As to the deaths he observed in the Jail, “‘all of

them I feel were not preventable”; and mortality reviews

that he conducted after such deaths did not reveal “‘any

problems or difficulties that were correctable.” (p.

121) (R — 2284)

Sheriff Gene Hodge:

(a) In May 1992 “Roy Reese as head of the adminis-

tration department on behalf of the City of Columbus

oversaw the medical clinic” of the Muscogee County

Jail. (p. 74) (R — 1445)

(b) His deputies or correctional officers, although

receiving some routine medical training, leave diagnoses

of medical conditions to medical personnel:

We have been through a routine medical training

for a long time. Our people are not qualified to

determine diabetic conditions or whatever. If a

person neds to go to the clinic, he goes. That’s for

the medical people. (p. 84) (R — 1455)

recognize medical problems and to move quickly to get

medical help but not to determine what treatment is

needed:

They were trained to recognize the symptoms

which may indicate an inmate may have a medical

problem of some kind, but they are not trained to

say this is an emergency and this is not an emer-

gency. That is a medical call, and my people are

not going to make a medical determination. They

are going to move expediently in dealing with any-

one which shows symptoms of medical problems.

(p. 86) (R — 1457)

(d) Inmates who need constant medical attention are

sent to the hospital, but inmates, such as diabetics, who

require regular treatment from day to day are brought

back to the Jail Clinic on a day-to-day basis. (pp. 128,

129) (R — 1489, 1490)

(ce) His first knowledge of James Howard, Jr. came

after he was sent to the Medical Center or after he died:

“I was told that we had to send him to the hospital,

that apparently he had been diagnosed by medical

center personnel that he probably had a diabetic condi-

tion, and that he elapsed into a diabetic coma.” (p.

159) (R — 1520)

(f) The only problems that he knew Howard had prior

to the time he was sent to the Medical Center on May

24, 1992 related to blood pressure:

Q. So was there any discussion about whether or

not Howard may have told anybody on the correc-

tional staff that he was having problems prior to

May 24th, 1992?

A. Only on the problems when he said his blood

pressure, he felt like his blood pressure was up,

which we administered or the clinic administered to.

(p. 161) (R — 1522)

(g) “Our policy is that we treat all inmates with medi-

cal problems, if we know they’ve got them, we make sure |

the medical people see them.” (pp. 219,220) (R— 1580,

1581)

(h) “I have been around inmates in that jail for years,

but I don’t know that I could single out a diabetic inmate

emergency from a heart attack.” (p. 232) (R — 1593)

(i) Overcrowding at the Jail has no impact on medical

treatment:

No, because I don’t think the overcrowded situa-

tion necessarily has an impact on medical care. I

think anybody who needs to see the medical person-

nel sees them. (p. 256) (R — 1617)

(j) When inmates are booked into the Jail, any medical

problems are noted on their personal histories: ‘‘That’s to

tell our people that you are a heart patient or a diabetic

patient or a chronic complainer or whatever.” (p. 300)

(R — 1661)

(k) He only knows about three sick call clips filled

out by Howard. (p. 361) (R — 1723)

(1) He did not change any policies after Howard’s

death: “I just told you that we did everything according

to our policy in seeing that he got medical care.” (p.

365) (R — 1727)

Dr. Bruce C. Newsom:

(a) Prior to his deposition he -reviewed the medical

records and jail records on James Howard, Jr. (p. 14)

(R — 268)

(b) He was “jail physician” for the City for about 10

years before he retired in December 1992. (pp. 15, 32)

(R — 269, 286)

as an employee. I was a consultant ona consulting basis.

I was my own individual contractor. (p. 17) (R — 271)

(d) The Sheriff was in charge of jail security, and Dr.

Newsom was in charge of treating inmates; “there was

good coordination between the two departments.” (p.

29) (R — 283)

(e) The Medical Director Division was contained within

the City’s Department of Administration, but the Dir-

ector of Administration was not Dr. Newsom’s super-

visor. “I don’t know that anybody was my supervisor.”

(p. 30) (R — 284)

(f) Although the City paid for the employees of the

Medical Director Division, they were under Dr. Newsom’s

supervision: “I believe they were under my supervision.”

(p. 31) (R — 285)

(g) In about 1990 he was “requesting certain things”

to improve the Jail Clinic; several councilors at the City

inspected it at his request, and the request “was very well

received” and they “corrected the major problems.” (pp.

60,61) (R— 314, 315)

(h) Anybody who came through jail screening and who

checked that they had diabetes was immediately referred

to the Jail Clinic: “The clinic, the medical personnel in

the clinic would interrogate them as to whether they

were on insulin or not, whether or not they were on oral

medication or not, what medication they were on, how

much and so forth.” (p. 152) (R — 407)

(i) If there was a history of diabetes, urine was checked

for sugar. They were placed on diabetic diets. They were

put on every protocol that a private patient would be put

on. (p. 153) (R — 408)

(j) James Howard, Jr. never indicated any history of

diabetes: ‘‘Never indicated it and never had any symp-

toms as such that we know of.” (p. 165) (R — 419)

(k) His staff at the Jail Clinic did not hesitate to send

inmates to the Emergency Room:

Most of the time they called me after the fact.

They were quick to call 911 and send them to the

emergency room, and then they would call me and

let me know what they had done.

The only reason for them to call me first would

be to get advice as to what to do, whether to call

911 or not, and they knew to call me any time.

(pp. 182, 183) (R — 436, 437)

(1) The Jail Clinic maintained specialty clinics for

known conditions: “‘We had a hypertension clinic, we had

an asthma clinic, we had a seizure clinic, we had a dia-

betic clinic, and then we had an AIDS clinic.” (p. 193)

(R — 447)

(m) Ketoacidosis is “not very common.” (p. 200)

(R — 454)

(n) In response to his 1990 request, the Columbus

Council “approved my budgets and approved just about

everything I asked for after that.” (p. 307) (R — 564)

(a) He estimates a total of 10-13 jail deaths during his

10-year tenure as Medical Director, and he does not

attribute any of these deaths to diabetes. (pp. 246-248)

(R — 500-502)

An Affidavit of Garry L. August, M.D., an independent

physician specializing in endocrinology and diabetes,

after examining the records relevant to Howard’s treat-

ment in the Muscogee County Jail, opined that none of

the Defendants violated any professional medical stand-

ards so as to cause Howard’s death. (Additional R —

127-134, 174-196, 238-243) The opinion of the Court

of Appeals never mentions it.

ARGUMENT

THE GEORGIA COURT OF APPEALS IGNORED THE

DELIBERATE INDIFFERENCE STANDARD FOR

EIGHTH AMENDMENT VIOLATIONS.

Farmer v. Brennan, 511 U.S. 825 (1994), defines the

deliberate deliberate indifference necessary to impose

liability on prison officials, and Division 1(a) and Divi-

sion 1(a)(i) of the opinion fail to follow it. ‘Subjective

recklessness, as used in the criminal law, is the approp-

riate test for ‘deliberate indifference.’ ” 511 U.S. 825-

(1)(c). However, in Georgia the rule is now different:

“The absence of proper care and the policy underlying

such lack of care constitute objective, deliberate indif-

ference.” Howard v. City of Columbus, 239 Ga. App.

399, 406 (1999). Under Farmer v. Brennan, a prison

official may violate the Eighth Amendment “only if he

knows that inmates face a substantial risk of serious

harm and disregards that risk by failing to take reason-

able measures to abate it.” 511 U.S. 825, 847. Georgia

goes by a different rule: “In this case, repeatedly deny-

ing an obviously sick inmate with a serious medical

need access to a physician or a hospital emergency room

where proper medical diagnosis and treatment can be

made does not escape from the Eighth Amendment

prohibition against denial of medical care simply because

neither jailors nor paramedical personnel know what is

specifically wrong with the inmate other than that he

is seriously sick.” 239 Ga. App. 399, 405. The Georgia

Court of Appeals cites page 837 of Farmer to support

its opinion at page 406 that because ‘Howard died from

his untreated diabetic ketoacidosis,” a factual question

arises as to “‘whether the defendants’ response to such

serious medical need amounted to deliberate indiffer-

ence,” but page 837 of Farmer says something quite

different from such a bizarre notion. akin to constitu-

tional res ipsa loquitur: ‘‘We hold instead that a prison

official cannot be found liable under the Eighth Amend-

ment for denying an inmate humane conditions of con-

finement unless the official knows of and disregards an

excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.”

This constitutional aberration from which the Sher-

iff and City/County seek relief is illustrated by compar-

ing Howard with other federal circuits. Reeves v. Col-

lins, 27 F.3d 174 (5th Cir. 1994), held that detention

officers were not deliberately indifferent to an inmate’s

serious medical needs when they ordered him to perform

cleaning duties despite his continued complaints of

severe abdominal pain eventually diagnosed as a double

hernia because his records contained no medical restric-

tions and the officers were not charged under the Con-

stitution with the responsibility of diagnosing hernias.

Neither should Sheriff Hodge or Columbus be respons-

ible for diagnosing diabetic ketoacidosis of which deced-

ent himself provided no history. By opining that

“repeated and prolonged denial of access to a physician”

constitutes deliberate indifference (230 Ga. App. 399,

405). Howard appears to be not only saying that any-

thing less than medical attention by a doctor constitutes

cruel and unusual punishment but also that repeated

acts of negligence suffice to impose liability under

Farmer. Brooks v. Celeste, 39 F.3d 125, 129 (6th Cir.

1994), holds otherwise:

“To the extent that some cases in fact hold that

repeated acts of negligence could by themselves

constitute deliberate indifference, Farmer teaches

otherwise. The Supreme Court in Farmer reiter-

ated that the Eighth Amendment requires that the

inflicting official act or fail to act with subjective

awareness of the deprivation. Lack of objective

reasonableness, t.e., a failure to act as a reasonable

person would have acted, does not by itself equal

deliberate indifference. See id. at , n.8,

114 S.Ct. at 1978, 1982 n.8. Repeatly violating an

objective standard of reasonableness does not

necessarily mean that the official acted with ‘delib-

erate indifference’ as defined in Farmer. The

official may- be incompetent, but he is not acting

wantonly, and thus is not inflicting ‘punishment.’ ”

Division 1(a)(i) of Howard is replete with such second-

guessing phrases as “‘proper diagnosis or treatment” and

‘inappropriate medical care” and “adequate medical

care” and “inadequate medical care” which are invoked

to support its after-the-fact notions of deliberate indif-

ference. A different and more accurate conclusion was

reached in Liebe v. Norton, 157 F.3d 574 (8th Cir.

1998), exonerating a jailor, sheriff, and the county after

an inmate known to be suicidal succeeded in taking his

life: the subjective component of an Eighth Amend-

ment claim requires examination of a defendant’s state

of mind, and a court would not with the benefit of

hindsight conclude that an inexperienced jailor who

might have been negligent in preventing the suicide was

deliberately indifferent or that the sheriff and county

were deliberately indifferent for failure to train or fail-

ure to supervise. The Howard opinion departs from

Farmer and the Eighth Amendment and follows ordin-

ary tort law when it requires that ‘tadequate medical

care means that level of medical care reasonably com-

mensurate with modern medical science and a quality

of care acceptable within prudent professional stand-

ards.”” 239 Ga. App. 399, 405. Collignon v. Milwaukee

County, 163 F.3d 982(8) (7th Cir. 1998), records the

correct rule: “Professional judgment standard for eval-

uating claim that state’s actions toward individual in

its care violated substantive due process only applies

to decisions made by professionals such as physicians,

psychiatnsts, and nurses within their area of profes-

sional expertise, while deliberate indifference stand-

ard, under Eighth Amendment, applies to a variety

of decisions made by prison officials, including when

to segregate a prisoner to protect him from the violence

of others, as well as to decisions of prison medical per-

sonnel as to what medical care a prisoner requires.”

Hill v. DeKalb Regional Youth Detention Center, 40

F.3d 1176, 1191 (11th Cir. 1994), also refutes Howard:

“The Supreme Court does not consider physi-

cians who are negligent in diagnosing or treating a

medical condition to be in violation of the Eighth

Amendment. Estelle, 429 U.S. at 106, 97 S.Ct.

at 292. Swain, a layperson, clearly cannot be held

to a higher standard merely because she had a

course in sexual abuse.”

II.

THE GEORGIA COURT OF APPEALS IMPOSED RES-

PONDEAT SUPERIOR LIABILITY, HAD NO BASIS FOR

CONCLUDING THAT ANY DELIBERATE OR CULPABLE

POLICY OR CUSTOM OF THE CITY/COUNTY WAS THE

MOVING FORCE THAT DIRECTLY CAUSED THE IN-

MATE’S DEATH, AND WITHOUT ANY AUTHORITY

STRIPPED THE SHERIFF OF OFFICIAL IMMUNITY.

Division 1(a)(ii) begins with the statement — unfounded

in the record — that the liability of Sheriff Hodge ‘“‘arises

from his failure to supervise the jail employees” and con-

unues with the statement (contradictory to the language

in Division 1(a)(i) that ‘‘jail LPNs deliberately ignored the

pleas of Howard”) that these nurses and Dr. Chase imple-

mented a “governmental policy of providing insufficient

care and treatment of Howard” which were merely “‘acts

or omissions of th employees and agents” which did not

amount to “individual acts of negligence or vindictive-

ness.” Division 1(a)(iii) erroneously claims “that ten to

thirteen inmates have died from diabetes while in custody

between 1980 and 1992” (plainly refuted in the State-

ment of the Case which records the testimony of Dr. New-

som — from which this purported “fact” is derived — as

recalling a total of 10-13 deaths for all causes with dia-

betes not specified) and then cites two cases in Footnote

1 where two inmates were treated for diabetic keroacid-

osis as evidence of a “pattern of practice in not treating

diabetics’? — an evidentiary curiosity that illustrates a

profoundly flawed opinion. The opinion forges ahead in

Division 1(a)(iv) with further factual misstatements

claiming policies of not inquiring about diabetes and of

treating inmates via LPNs without access to a doctor

(plainly refuted by the facts of record that Howard did

not check diabetes in his medical history and that

inmates and nurses have ready access to doctors as

needed).

Although these divisions of the opinion cite Board of

Commissioners of Bryan County v. Brown, 520 US.

397 (1997), Monell v. Department of Social Services,

436 U.S. 658 (1978), and Collins v. City of Harker

Heights, 503 U.S. 115 (1992), the opinion fails to fol-

low their precedents. The language of the opinion with

reference to both the Sheriff and the City reflects a

reversion to an unauthorized theory of vicarious liabil-

ity. There is no support for the notions in the opinion

that either the Sheriff or the City are a wrongdoer. All

of the extensive discussion in Bryan County (117 S.Ct.

1382) concerning a specific causal effect between a

specific act and a specific constitutional injury is ignored.

“That is, a plaintiff must show that the municipal action

was taken with the requisite degree of culpability and

must demonstrate a direct causal link between the mun-

icipal action and the deprivation of federal rights.” 117

S.Ct. 1382, 1388. “To prevent municipal liability for

a hiring decision from collapsing into respondeat superior

liability, a court must carefully test the link between the

policymaker’s inadequate decision and the particular

injury alleged.” 117 S.Ct. 1382, 1391. “A plaintiff

must demonstrate that a municipal decision reflects

deliberate indifference to the risk that a violation of a

particular constitutional or statutory right will follow

the decision.” 117 S.Ct. 1382, 1392. “Bryan County

is not liable for Sheriff More’s isolated decision to hire

Burns without adequate screening, because respondent

has not demonstrated that his decision reflected a con-

scious disregard for a high risk that Burns would use

excessive force in violation of respondent’s federally

protected right.’”’ 117 S.Ct. 1382, 1394.

The result reached and rationale expressed by the

Georgia Court of Appeals conflicts with the decisions

of at least four other federal courts of appeals. Snyder

v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998), cer-

tiorari granted, 119 S.Ct. 863 (1999), applies Bryan

County and makes a number of significant holdings,

including the following which the record in the case at

bar shows Plaintiffs fail to establish: “The plaintiff must

demonstrate ‘at least a pattern of similar incidents in

which the citizens were injured . . . to establish the offi-

cial policy requisite to municipal liability under section

1983.’ ” (quoting Rodriguez v. Avita, 871 F.2d 552,

554, 555 (5th Cir. 1989). Barney v. Pulsipher, 143 F.3d

1299, 1308 (10th Cir. 1998), applies Bryan County,

absolves the Sheriff on grounds of qualified immunity,

and makes a number of significant holdings, including the

following: “Establishing municipal liability in the hiring

context requires a finding that “* ‘this officer was highly

likely to inflict the particular injury suffered by the plain-

tiff.’ ”’ (quoting Bryan County). Smith v. Watkins, 159

F.3d 1137, 1138 (8th Cir. 1998), applies Bryan County

and absolves the City and a police officer sued in his

official capacity and reaches the following conclusion —

which is coupled with conclusions that neither general-

ized complaints about the officer’s alleged unreasonable

stops on the streets nor generalized complaints about

inadequate training suffice to state a claim: “In the

absence of a written policy, Smith must identify a pat-

tern of widespread unconstitutional conduct that was

so pervasive and well-settled that it had the effect of

law.” Campbell v. Sikes, 169 F.3d 1353 (11th Cir.

1999), affirms summary judgment to a number of prison

medical officials based on qualified immunity, including

allegations of supervisory liability against a warden and

a psychiatrist, with an extensive discussion of allegations

of misdiagnosis and serious medical need and grossly

inadequate treatment that is contrary to the opinion

under review.

Ill.

THE GEORGIA COURT OF APPEALS ERRONEOUSLY

CONCLUDED THAT A DUE PROCESS VIOLATION DOES

NOT REQUIRE SUBJECTIVE DELIBERATE INDIFFER-

ENCE AND THEREBY PROVIDES GREATER PROTEC-

TION TO INMATES THAN THE EIGHTH AMENDMENT,

ERR ~NEOUSLY ELEVATED AN ALLEGED STATE

STATUTORY VIOLATION OR DUTY TO A FEDERAL

CONSTITUTIONAL VIOLATION OR DUTY, AND ERRON-

EOUSLY EQUATED THE CRITERIA FOR ESTABLISH-

ING THE THRESHOLD QUESTION OF ACTION OR

CONDUCT UNDER COLOR OF STATE LAW WITH THE

ULTIMATE QUESTION OF WHETHER OR NOT A STATE

ACTOR IS LIABLE UNDER § 1983.

Division 1(b) of the opinion shifts its attention to the

Due Process Clause and reaches more erroneous conclu-

sions. First, it erroneously concludes that “ta Due Process

violation does not require subjective deliberate indif-

ference.”” 239 Ga. App. 399, 409. This is contrary to

Whitley v. Albers, 475 U.S. 312(2) (1986):

“In this case, the Due Process Clause of the Four-

teenth Amendment cannot serve as an alternative

basis for affirmance, independently of the Eighth

Amendment. In the prison security context, the

Due Process Clause affords respondent no greater

protection than does the Cruel and Unusual Pun-

ishments Clause.”

Williams v. Benjamin, 77 F.3d 756(25) (4th Cir. 1996),

follows Whitley: “Eighth Amendment serves as primary

source of substantive protection to convicted prisoners,

and due process clause affords prisoner no greater sub-

stantive protection than does cruel and unusual punish-

ments clause.” Second, the opinion cites a state statute

(O.C.G.A. §42-5-2) and makes the following claim:

“Here, the medical policies were promulgated and carried

out under the mandate of a state statute requiring that a

county provide adequate medical care for its inmates.”

Accordingly, says the opinion, a constitutional violation

has occurred, but it forgets Elder v. Holloway, 510 U.S.

510, 515 (1994):

“In thinking its rule compelled by this Court’s

instruction, the Ninth Circuit misconstrued Davis

v. Scherer. The Court held in Davis that an offi-

cial’s clear violation of a state administrative reg-

ulation does not allow a §1983 plaintiff to over-

come the official’s qualified immunity. Only in

this context is the Court’s statement comprehens-

ible: “‘A plaintiff who seeks damages for violation

of constitutional or statutory rights may overcome

the defendant official’s qualified immunity only

by showing that those rights were clearly estab-

lished. . . .” Davis v. Scherer, 468 U.S., at 197

(emphasis added). Davis, in short, concerned not

the authorities a court may consider in determin-

ing qualified immunity, but this entirely discrete

question: Is qualified immunity defeated where a

defendant violates any clearly established duty,

including one under state law, or must the clearly

established right be the federal right on which the

claim for relief is based? The Court held the latter.

Id., at 193-196, and n.14; see 984 F.2d 991, 995

(CA 9 1993) (Kozinski, J., dissenting from denial

of reh’g en banc).

Harbert International, Inc. v. James, 157 F.3d 1271(20)

(11th Cir. 1998), follows Elder: “Actions of state offi-

cials and employees that allegedly violated state laws

and administrative rules did not forfeit their qualified

immunity in government contractor’s action alleging

procedural due process violation and taking of contract-

or’s property without just compensation, absent show-

ing that such actions violated federal right.’”’ En route

to these erroneous conclusions, the opinion speculates

on what LPNs should have done or should have known —

not to speak of confounding the issue of how the Sher-

iff or the City are liable by saying that ‘‘a jailor, not

jail medical personnel, called 911 for an ambulance to

transport Howard to the hospital emergency room.”

239 Ga. App. 399, 409. In any event, a reading of the

speculations of the opinion alone — not to speak of

the facts of record — clearly indicates that the opinion

has reverted to a theory of civil rights liability predicated

on mere medical negligence which was originally for-

bidden in Estelle v. Gamble, 429 U.S. 97 (1976).

Another pecularity of this division of the opinion is

it digression into a theory of liability under §1983

via this simplistic formula: ‘A plaintiff in a [42 USCA]

§ 1983 action must show (1) that he has been deprived

of a right secured by the constitution and laws of the

United States, and that (2) the defendant acted under

color of state law.”” 239 Ga. App. 399, 409, quoting

from Poss v. Moreland, 253 Ga. 730, 731 (1985). This

short quote from Poss is followed by a longer quote in

which the emphasis is what constitutes conduct “under

color of state law,” and both Poss and the present case

cite Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982),

where the issue was how to distinguish between private

action and governmental action in order to establish the

applicability of §1983. What the opinion has done is

transform this issue into an issue of liability; the opin-

ion has erroneously concluded that, if the threshold issue

of §1983 jurisdiction is established, so also has liability

been established — never minding all of the fine points

heretofore discussed in this Argument: “Thus, under

this test, a fact question exists as to whether there is a -

causal connection between the implementation of jail

medical policies under-color-of-state-law and Howard’s

death.” 239 Ga. App. 399, 410.

CONCLUSION

The decision of the Georgia Court of Appeals creates

liability in the state forums of Georgia under the Civil

Rights Act which brings into question the confidence

which is often expressed as to the ability of state courts

to interpret and apply federal law. In arriving at what

appears to be an intended result, the opinion strays far

from both the facts of record and the precedents cited

in the numerous cases of the U.S. Supreme Court and

the U.S. Courts of Appeals. Petitioners are thereby

exposed to liability which other officials and local gov-

ernments in other states or in the federal court system

under comparable circumstances would not experience.

The idea of reaching similar legal results in similar sit-

uations was expressed as long ago as the Code of Ham-

murabi (c. 1750 B.C.). The same idea is embodied in

the Twelve Tables of Roman Law (450 B.C.) that sought

to achieve legal equality for plebeians and patricians.

The English common law reflects the idea when it estab-

lishes the same rule for all similar cases. The Supreme

Court should issue the Writ of Certiorari to ensure the

continuation of the idea that Americans are governed by

the same Constitution.

Respectfully submitted,

EUGENE HARDWICK POLLEYS, JR.

City Attorney

P.O. Box 1340

Columbus, Georgia 31902

(706) 653-4025

Ga. State Bar No. 583000

Attorney for Petitioners.

1399) APPENDIX A

IN THE

GEORGIA COURT OF APPEALS

No. A99A0680

HOWARD et al. v. CITY OF COLUMBUS et al.

No. A99A1258

HOWARD et al. v. CHASE

(July 15, 1999)

ELDRIDGE, Judge.

At 1:20 a.m. on May 25, 1992, James Howard, Jr., a

prisoner of the City of Columbus, Muscogee County,

died of diabetic ketoacidosis at Columbus Medical Cen-

ter. Conswella L. Howard, his minor daughter, by and

through her natural and legal guardian, Stephanie Cor-

bin, brought a wrongful death action, and Stephanie

Corbin, as temporary administratrix of the estate of

James Howard, Jr., brought a personal injury action

against the City of Columbus, Muscogee County; J.E.

“Gene” Hodge, individually and in his official capacity

as Sheriff of Muscogee County; Dr. Jerry Stephen Chase,

individually and in his official capacity as Sheriff of

Muscogee County, Dr. Jerry Stephen Case, individually

and in his official capacity as jail medical director; and

three jail licensed practical nurses, Mildred Chapman,

Ava J. McLeod, and Lawrence Thompson, individually

and in their official capacities. Plaintiffs contended

that Howard received such grossly incompetent and

inadequate medical care or such refusal to provide

essential care so as to evidence an intentional violation

of his constitutional rights. The following were the

basis for plaintiffs’ actions: Counts 1 through 4 were

premised upon a violation of the statutory duty to pro-

vide medical care under OCGA §42-5-2, and the com-

mon law duty and the state constitutional duty as per-

sonal injury and wrongful death actions; Count 5 was

a medical malpractice action for personal injury and

wrongful death; and Count 6 was a 42 USC §§1983

and 1988 action for violation of due process and the

Eighth Amendment of the United States Constitution

prohibiting cruel and unusual punishment.

[400] After extensive discovery, all the defendants

moved for summary judgment on all counts. On Aug-

ust 6, 1998, oral argument was held. On August 11,

1998, the trial court granted summary judgment on

all counts against the plaintiffs. On December 10,

1998, the trial court granted Dr. Chase’s motion for

summary judgment as well. Plaintiffs timely filed their

notice of appeal.

The record shows that Howard was a diabetic with

hypertension. By policy, the intake screening in the Mus-

cogee County jail was performed by a deputy with no

medical training who did not take a medical history for

diabetes or hypertension and looked only for observable

physical conditions or injuries. Thus, Howard’s jail

records did not flag his medical condition. After his

incarceration on October 1, 1991, lack of proper diet

and medication caused Howard’s diabetic condition to

worsen over time. By April 1992, Howard’s diabetic

condition had deteriorated to the extent that he appeared

visibly sick to a lay person.

On April 23, 1992, Howard’s cellmate, Melson, pre-

pared a sick-call slip for Howard, because Howard was

too weak to do it for himself. Within the week, Melson

prepared two or three more sick-call slips for Howard.

By the first week in May, Howard experienced symptoms

of overheating, craving of water, dizziness, constipation,

and fainting. After one fainting spell, Howard was exam-

ined in the cell by a deputy. At other times, when the

cellmates told the jailors that Howard was seriously sick

or had fainted, the jailors did not even look at him or do

anything to determine if he was sick. Howard lost con-

siderable weight, i.e., 30 to 40 pounds, and had a shrunken

face, indicating to a lay person that he was profoundly

sick and had a serious medical need.

On May 22, 1992, Officer J.V. Kennedy learned that

Howard was sick. Kennedy talked by telephone to LPN

Mildred Chapman in the clinic at 8:30 a.m. Chapman

did nothing. Kennedy called again at 10:30 a.m., but

Chapman said that the clinic was full. At 2:00 p.m.,

Kennedy saw Chapman in person and told her that How-

ard appeared very sick and in serious need of medical

care. Chapman refused to see Howard. Kennedy was

sufficiently concerned over Howard’s condition that he

notified his supervisor, Lt. Wanda Clemmons, about

Howard and Chapman’s refusal to see Howard. Clem-

mons merely told him to prepare a written report of the

incident. This was another policy or procedure of the

jail regarding medical care.

On May 23, 1992, at 8:00 a.m., Howard manifested

symptoms of profound weight loss, total absence of

appetite, slurred speech, lethargy, fainting, blurred vision,

and profound weakness. He had to be carried to the

clinic. Howard had a heart rate of 148 beats per min-

[401]ute. Although the protocol required that 911 be

called when a prisoner’s heart rate exceeded 120 bpm,

LPN Lawrence Thompson did not call 911 or Dr. Chase,

but gave Howard medication for high blood pressure that

had been preapproved for such general use. However,

such medication was dangerous for a diabetic. Howard

was kept in the clinic from 11:00 a.m. until 7:00 p.m.,

when he was returned to his cell. Howard was never seen

by a physician. At 11:00 p.m., Howard was returned to

the clinic. He told LPN Ava McLeod that he was dying.

At that time, he had an unsteady gait, blurry vision,

faintness, a heart rate of 126 bpm, and a rebounding

pulse of 136 bpm. The LPN did not call an ambulance

or Dr. Chase, but continued to treat him only for high

blood pressure by changing the blood pressure medica-

tion.

After Howard’s return to the clinic at 11:00 p.m. on

May 23, 1992, Deputy Gary Nicholson observed Howard

in the holding cell and observed that Howard appeared

“rough,” in distress, lethargic, incoherent, and thirsty.

Howard had an overwhelming edor of sweet ammonia

about him. LPN McLeod told Nicholson that she thought

that Howard was a diabetic. While LPNs had the auth-

ority to call 911 for an ambulance, the policy was that,

because of cost, an ambulance was not to be called

except in case of a medical emergency. LPN McLeod

consulted by telephone with Dr. Chase, who was on

call. Dr. Chase neither came to the clinic to examine

Howard nor ordered that Howard be sent to the emer-

gency room at the hospital. By telephone, Dr. Chase

ordered a change in blood pressure medication with-

out knowing Howard’s clinical signs and symptoms.

After 6:30 a.m. Sunday, May 24, 1992, Howard was

returned to his cell by LPN Thompson. Howard told

his cellmate Melson that he was dying. The cellmates

created a commotion to get the deputies to do some-

thing about Howard, because Howard appeared to

them to be critically ill. At 7:00 a.m., LPN Thompson

arrived with a deputy at the cell, and Howard was again

carried to the clinic. At 1:40 p.m., Howard’s father

and sister came to the jail, and Howard was taken to

the visitors area, but Howard could not talk and fainted.

Howard was then returned to the clinic. At 1:55 p.m.,

Howard’s heart rate increased to 144 bpm, and his

blood pressure dropped. A jailor became sufficiently

concerned that he called 911; LPN McLeod called Dr.

Chase to tell him that the deputy had called for the

paramedics. Dr. Chase did not come to the jail.

At 2:10 p.m. on May 24, 1992, as a result of the

telephone call from the jailor, two paramedics, Jim

Waits and William Moore, arrived. They immediately

detected acetone on Howard’s breath. Howard was in

a near coma and in a wheelchair. He was lethargic and

could not keep his eyes open; he was non-responsive to

voice commands and responded only to pain; and he

lacked a grasp. The [402]paramedics administered a

simple glucose fingerstick test, which registered the max-

imum for glucose. Based on this simple test, it was their

immediate opinion that Howard was diabetic. At the

hospital, Howard registered 1200+ on the blood workup.

At 1:00 a.m. on May 25, 1992, after removal from the

jail to the Medical Center, Howard stopped breathing. He

died at 1:20 a.m.

Held:

Case No. A99A 0680

The plaintiffs set forth six enumerations of error, all of

which state different reasons why the trial court erred in

granting summary judgment to the defendants. For a

proper analysis, the theories of liability must be exam-

ined on the basis of federal and state claims.

1. The plaintiffs contend that the trial court erred

in granting summary judgment on Howard’s 42 USCA

§ 1983 claims for violating Howard’s rights under: (a)

the Eighth Amendment of the United States Constitu-

tion to be free from cruel and unusual punishment,

i.e., grossly inadequate medical care and failure to treat

Howard, and (b) the Due Process Clause. We agree.

(a) Liability on an action under 42 USCA §1983 pro-

hibiting cruel and unusual punishment as a violation of

Eighth Amendment rights under the United States Con-

stitution exists through ‘‘acts [and] omissions suffi-

ciently harmful to evidence deliberate indifference to

serious medical needs,’”’ of an inmate in jail. Estelle v.

Gamble, 429 U.S. 97, 106 (97 SC 285, 50 LE2d 251)

(1976).

Not every governmental action affecting the

interests or well-being of a prisoner is subject to

Eighth Amendment scrutiny. After incarceration,

only the unnecessary and wanton infliction of pain

constitutes cruel and unusual punishment forbid-

den by the Eighth Amendment. To be cruel and

unusual punishment, conduct that does not pur-

port to be punishment at all must involve more

than ordinary lack of due care for the prisoner’s

interests or safety. It is obduracy and wanton-

ness, not inadvertence or error in good faith, that

characterize the conduct prohibited by the Cruel °

and Unusual Punishments Clause, whether that

conduct occurs in connection with establishing

conditions of confinement, supplying medical

needs, or restoring official control over a tumult-

uous cellblock. ... Whitley [v. Albers, 475 U.S.

312, 319 (106 SC 1078, 89 LE2d 251) (1986)].

(Punctuation omitted.) Alford v. Osei-Kwasi, 203 Ga.

App. 716, 718-719(2) (418 SE2d 79) (1992); accord

Cantrell v. Thurman, 231 Ga. App. 510, 512 (1) (499

SE2d 416) (1998); Webb v. Carroll County, 229 [403]

Ga. App. 584 (494 SE2d 196) (1997).

To state an Eighth Amendment violation for

inadequate medical care under Estelle v. Gamble,

supra, it must be shown that [Howard’s] treat-

ment was “so grossly incompetent, inadequate or

excessive as to shock the conscience or to be intol-

erable to fundamental fairness or where the medi-

cal care is so inappropriate as to evidence inten-

tional maltreatment or a refusal to provide essen-

tial care.” Rogers v. Evans, 792 F2d 1052, 1058

(11th Cir. 1986).

Alford v. Osei-Kwasi, supra at 722-723(6); accord Can-

trell v. Thurman, supra at 512; Webb v. Carroll County,

supra. ‘“‘Also, delay in access to medical care that is

tantamount to unnecessary and wanton infliction of

pain may constitute deliberate indifference to a pris-

oner’s serious medical needs.” (Citations and punctua-

tion omitted.) Adams v. Poag, 61 F.2d 1537, 1544 (11th

Cir. 1995); see also Brown v. Hughes, 894 F2d 1533,

1537 (11th Cir. 1990). “If [jailors] delay or deny

access to medical care, . . ., the [E]ighth [A]mend-

ment is violated. . . . [A] refusal to provide essential

care violates the [EJighth [A]mendment.” Rogers v.

Evans, supra at 1058.

All [Eighth Amendment medical] cases require

knowledge of the medical needs of the plaintiff and

the intentional refusal to provide such necessary

care in order for such conduct to constitute “‘delib-

erate indifference’ as an Eighth Amendment viola-

tion within Estelle. Our cases have consistently held

that “knowledge of the need for medical care” and

‘‘an intentional refusal to provide that care” con-

stitute “deliberate indifference.” . . . Carswell v.

Bay County, 854 F2d 454, 457 (11th Cir. 1998);

Ancata v. Prison Health Svcs., 769 F2d 700, 704

(11th Cir, 1985).

(Emphasis omitted.) Mertitt v. Athens Clarke County,

233 Ga. App. 203, 205 (1) (504 SE2d 41) (1998).

We hold instead [as to the meaning of deliberate

indifference] that a prison official cannot be found

liable under the Eighth Amendment for denying

an inmate humane conditions of confinement

unless the official knows of and disregards an

excessive risk to inmate health or safety; the offi-

cial must both be aware of facts from which the

inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the

inference.

Farmer v. Brennan, 511 U.S. 825, 837 (B) (1) (114 SC

1970, 128 LE2d [404] 811) (1994); accord Yizar v.

Ault, 265 Ga. 708, 709 (462 SE2d 141) (1995); Merritt

v. Athens Clarke County, supra at 208.

However, ‘‘an Eighth Amendment claimant need not

show that a [jailor] acted or failed to act believing that

harm actually would befall an inmate; it is enough that

the official acted or failed to act despite his knowledge

of a substantial risk of serious harm.” Farmer v. Bren-

nan, supra at 842. “To state an Eighth Amendent

violation for inadequate medica’ care under Estelle v.

Fe 9a

Gamble, supra, it must be shown that [Howard’s] treat-

ment was ‘so grossly incompetent, inadequate or exces-

sive . . . or [was] a refusal to provide essential care.’

[Cit.]” Alford v. Osei-Kwasi, supra at 722-723 (6).

Thus, knowledge for the purpose of deliberate indif-

ference means an awareness that the inmate needs medi-

cal care because of a serious risk of harm from illness

or injury, as evidencd by the clinical signs and symptoms

that are readily observable by a reasonable person.

Knowledge for the purpose of deliberate indifference

does not require a final diagnosis, correct diagnosis, or

a complete medical history when the inmate has not

been allowed to see and to be examined by-a physician

or when medical care has been unreasonably delayed.

Adams v. Poag, supra at 1544; Brown v. Hughes, supra

at 1538; Carswell v. Bay County, supra at 457.

Such knowledge may be shown by circumstantial

evidence by demonstrating that the surrounding facts

and circumstances are such that a reasonable person

would know and appreciate the risk of harm from a ser-

ious medical need, unless they were deliberately indif-

ferent. A defendant will rarely make the admission of

an awareness and appreciation that the inmate was in

serious need of medical care to avoid the risk of harm,

because to do so is an admission of subjective indif-

ference, i.e., admission of a culpable state of mind and

liability. Merritt v. Athens Clarke County, supra at 208.

“[W]hen the need for medical treatment is obvious,

medical care that is so cursory as to amount to no treat-

ment at all may constitute deliberate indifference.”

(Citation omitted.) Adams v. Poag, supra at 1544;

accord Ancata v. Prison Health Svcs., supra at 704. “A

medical need is serious if it is ‘. . . one that is so obvious

that even a lay person would easily recognize the neces-

10a

sity for a doctor’s attention.’ [Cits.]”” Ramos v. Lamm,

639 F2d 559, 575, (10th Cir. 1980). ‘A series of inci-

dents closely related in time may disclose a pattern of

confuct amounting to deliberate indifference. Repeated

examples of delayed or denied medical care may indi-

care a deliberate indifference by prison authorities to the

suffering that results.’’ (Citations omitted.) Rogers v.

Evans, supra at 1058-1059; accord Todaro v. Ward,

565 F2d 48, 52 (2nd Cir. 1977); Harris. v. Thigpen,

941 F2d 1495, 1505 (11th Cir. 1991); Ramos v. Lamm,

supra at 575. “When [jail guards or medical person-

nel] ignore without explanation a prisoner’s serious

medical [405] condition that is known or obvious to

them, the trier of fact may infer deliberate indiffer-

ence.” (Citations omitted.) Brown v. Hughes, supra

at 1538. Therefore, such subjective deliberate indif-

ference may be proven as a reasonable inference drawn

from circumstantial evidence of the surrounding facts

and circumstances.

(i) In this case, repeatedly denying an obviously sick

inmate with a serious medical need access to a physi-

cian or a hospital emergency room where proper med-

ical diagnosis and treatment can be made does not escape

from the Eighth Amendment prohibition against denial

of medical care simply because neither jailors nor para-

medical personnel know what is specifically wrong with

the inmate, other than that he is seriously sick. Adams

v. Poag, supra; Brown v. Hughes, supra. Such repeated

and prolonged denial of access to a physician for an

obviously seriously sick inmate constitutes deliberate

indifference and reckless conduct. Farmer v. Brennan,

supra at 842. Ignorance is not bliss; otherwise, a pre-

mium would be placed upon ignorance in order to escape

liability when an illness is not diagnoses and the suf-

lla

ferer is allowed to slowly die without proper diagnosis

or treatment. _Therefore, repeated denial, delay, insuf-

ficient or inappropriate medical care of an obviously

sick inmate in serious need of medical care constitutes

circumstantial evidence of subjective, deliberate indiffer-

ence. See Whitley v. Albers, supra at 321; Estelle v. Gam-

ble, supra at 103-104; Wilsonv. Setter, 501 U.S. 294,

296-299 (111 SC 2321, 115 LE2d 271) (1991); Ander-

son v. City of Atlanta, 778 F2d 678, 686, n. 12 (11th

Cir. 1985); Merritt v. Athens Clarke County, supra at

208.

Here, jail LPNs deliberately ignored the pleas of

Howard, his cellmates, and deputies either to have the

physician examine Howard or to send him to the hos-

pital, and — finally — a medically untrained deputy

was forced to call 911 for paramedics; such evidence

(plus the evidence of the serious medical needs of How-

ard from the same witnesses) constitutes some circum-

stantial evidence of their culpable state of mind, i.e.,

subjective deliberate indifference, because such acts or

omissions are not negligent but require a conscious

decision to act or not to act. See Merritt v. Athens

Clarke County, supra at 208; Van Alstine v. Merritt,

222 Ga. App. 734, 735 (1) (476 SE2d 6) (1996); John-

son v. Jones, 178 Ga. App. 346, 348 (343 SE2d 403)

(1986); see also Wilson v. Seiter, supra at 296-299.

The government has a duty to provide minimally

adequate medical care to its inmates. West v. Atkins,

487 U.S. 42, 54 (108 SC 2250, 101 LE2d 40) (1988);

Harris v. Thigpen, supra. _ However, adequate medical

care means that level of medical care reasonable com-

mensurate with modern medical science and a quality

of care acceptable within prudent professional stand-

ards; it means a level of health services that is resonably

l2a

designed to meet routine as well as emer-[406] gency

medical care. Fernandez v. United States, 941 F.2d

1488, 1493-1494 (llth Cir. 1991); Unsted States v.

DeCologero, 821 F2d 39, 43 (1st Cir. 1987); Ramos v.

Lamm, supra at 574. Where the inmate demonstrates

that the medical care system is inadequate, so that he is

effectively denied access to medical care for his condi-

tion, liability has been established. Anderson v. City of

Atlanta, supra at 686-687, n. 12; Ancata v. Prison Health

Sucs., supra at 703, n. 5; accord Garcia v. Salt Lake

County, 768 F2d 303, 308 (10th Cir. 1985); Wellman v.

Faulkner, 715 F2d 269, 272-274 (7th Cir. 1983); Ramos

v. Lamm, supra at 574-575; Todaro v. Ward, supra at

52. The absence of proper care and the policy underlying

such lack of care constitute objective, deliberate indif-

ference. Merntt v. Athens Clarke County, supra at 206-

207.

Here, there is evidence that a life-threatening, serious

medical need existed, because Howard died from his

untreated diabetic keroacidosis. Accordingly, the evi-

dence raises a factual question as to whether the defend-

ants’ response to such serious medical need amounted to

deliberate indifference. Farmer v. Brennan, supra at 837

(B)(1); Adams v. Poag, supra; Merritt v. Athens Clarke

County, supra at 207. As an established policy or prac-

tice, the LPNs’ examination, treatment, and delay in

transfer to a hospital of an obviously critically ill inmate,

rather than examination and treatment by a physician,

constitute such totally inadequate medical care that a jury

may find that it constituted non-treatment. Thus, such

non-treatment, as a consequence of such policy, would

be the proximate cause of Howard’s death. Collins v.

City of Harker Heights, 503 U.S. 115, 120-124 (112

SC 1061, 117 LE2d 261) (1992).

13a

(ii) As to Sheriff Hodge, his liability arises from his

failure to supervise the jail employees. See also Division

2 (b), infra.

We apply a three-prong test to determine a super-

visor’s liability: (1) whether the supervisor’s failure

to adequately train and supervise subordinates con-

stituted deliberate indifference to an inmate’s med-

ical needs; (2) whether a reasonable person in the

supervisor’s position would understand that the fail-

ure to train and supervise constituted deliberate

indifference; and (3) whether the supervisor’s

conduct was causally related to the subordinate’s

constitutional violation. [Cit.]

Adams v. Poag, supra at 1544; see also Ancata v. Prison

Health Sucs., supra at 706. As to each prong, plaintiffs

have presented sufficient evidence -to raise an issue of

material fact for jury determination.

In this case, the policies of Columbus, Muscogee

County, 4 government entity, constitute a violation of

constitutional rights by [407] providing for poten-

tially inadequate, delayed, or insufficient medical care

and treatment and raise a factual question as to the

causation of Howard’s death. Here, the policy caused

the constitutional violation as the “moving force,”

which was executed by its employees. Monell v. Dept.

of Soctal Sucs., 436 U.S. 658, 690-694 (98 SC 2018,

56 LE2d 611) (1978). Such policy or policies consti-

tuted the evidence of actual deliberate indifference.

Merritt v. Athens Clarke County, supra at 207. “If the

government itself is to be held liable, as opposed to

holding its employees liable individually, then such lia-

bility must arise from a governmental policy of action

or inaction that caused the constitutional violation, as

well as the injury.” Id. at 206.

l4a

In this case, such has been shown, because the LPNs

and Dr. Chase acted or refused to act due to the imple-

mentation of such governmental policy of providing

insufficient care and treatment of Howard and exces-

sively delaying his transportation to the hospital for

budget reasons. Such acts or omissions of the employ-

ees and agents were not individual acts of negligence

or vindictiveness, but were within the policy of provid-

ing inadequate treatment. Bd. of County Commrs. of

Bryan County v. Brown, 520 U.S. 397, 403-407, 411

(117 SC 1382, 137 LE2d 626) (1997); Monell v. Dept.

of Soctal Sucs., supra at 691-695; Merritt v. Athens

Clarke County, supra at 206. The subjective element

of ‘“‘deliberate indifference” is evidenced by the acts and

omissions of Chase, Chapman, McLeod, and Thompson

in implementing such policies. Id. at 207. ‘“‘[A] claim

of deliberate indifference to a prisoner’s serious med-

ical needs has two components: whether evidence of a

serious medical need exists; [and] if so, whether the

defendants’ response to that need amounted to delib-

erate indifference. |Cit.]” Adams v. Poag, supra at,

1543. As to the first prong in this case, death estab-

lished that the medical need was serious; as to the lat-

ter, the evidence presented by the plaintiffs makes it

a jury question.

Under Laws Corp. v. Haskins, 261 Ga. 491 (405

SE2d 474) (1991), plaintiffs raised sufficient issues

of material fact that the trial court should have den-

ied the defendants’ motions for summary judgment

on the federal issues. See OCGA §9-11-56 (e).

Thus, [with some evidence in and _ permissible

reasonable inferences from] the record that a

jailor/prison official acted or failed to act,

despite knowledge of the substantial risk of harm

15a

to [an inmate] of permanent injury under the

policy, there is [the creation of a material issue of

fact] by the plairitiff on summary judgment [by

coming] forward with evidence of subjective delib-

erate indifference, [in addition to] evidence of

objective deliberate indifference. [ Cits. ]

[408] Merritt v. Athens Clarke County, supra at 208.

(iii) Plaintiffs provided evidence that, prior to How-

ard’s death from diabetes, the defendants engaged in

' deliberate indifference through a policy and pattern of

practice in not treating diabetics.!_ The fact that ten to

thirteen inmates have died from diabetes while in cus-

tody between 1980 and 1992 is some evidence of delib-

erate indifference to providing appropriate medical care

and treatment for diabetics. As early as 1986, Dr. Bruce

Newsome and pbhysician’s assistant Richard Holmes

warned that the identification, care, and treatment of

diabetics was inadequate and that preventable deaths

were needlessly occuring. Sheriff Hodge, Dr. Newsome,

and Roy Reese, Director of Risk Management, were

aware specifically that diabetic inmates were at risk.

(iv)

The allegations of one denied medical attention

and incarcerates [when sick] have been held to state

a cause of action under 42 USCA §1983. Hughes v.

Noble, 295 F2d 495 (5th Cir. 1961). The federal

courts have demonstrated concern that where

needed medical care is refused the denial or improv-

ident delay of such aid may constitute deprivation

1 For example, on March 6, 1992, inmate Eric Killibrew

required emergency treatment for diabetic ketoacidosis. On March

22, 1992, inmate David Lewis had to be hospitalized for diabetic

ketoacidosis.

16a

of constitutional due process. Fitzke v. Shappell,

468 F2d 1072 (6th Cir. 1972).

Davis v. City of Roswell, 250 Ga. 8 (295 SE2d 317)

(1982); accord Cantrell v. Thurman, supra at 512-513

(2); see Collins v. City of Harker Heights, supra at 119-

120.

Thus, the policies of conducting a restrictive medical

history and inmake intake examination with undertrained

deputies who do not inquire regarding or examine for

diabetes and hypertension; having LPNs examine and

treat seriously ill inmates with significant medical needs

without a physician present and seeing a seriously sick

patient without a physician examining the inmate within

a reasonable time thereafter; having the physician con-

sulting with the LPN by telephone instead of directly

observing, examining, and working up the seriously sick

inmate or performing a follow-up examination; having

the LPNs continuing to see a chronically seriously ill

inmate without a physician ever examining the inmate;

narrowly defining a medical emergency so that an

obviously sick inmate is not transported to a hospital

emergency room in the absence of a physician examin-

ing him in the clinic; and designing medical protocols

which [409] are primarily for cost effectiveness and to

save money by limiting direct physician care and hos-

pitalization of seriously ill inmates — all such policies

demonstrate a question of fact for the jury as to whether

they constitute ‘‘deliberate indifference.”

(b) Deliberate indifference to serious medical needs

by governmental custodians violates Due Process. How-

ever, unlike an Eighth Amendment violation, a Due

Process violation does not require subjective deliberate

indifference; such violation requires action under color-

of-law and causation, as in an Eighth Amendment viola-

17a

tion. See City of Roswell v. Davis, 255 Ga. 158, 163

(335 SE2d 582) (1985).

|P}laintiff must establish a causal connection

between any policy of inadequate medical care or

omissions of medical care and the constitutional

deprivation of due process rights [or an Eighth

Amendment violation]. City of Roswell v. Davis,

[supra at 163]. “A plaintiff in a [42 USCA]

§1983 action must show (1) that he has been

deprived of a right secured by the constitution and

laws of the United States, and that (2) the defend-

ant acted under color of state law.”

Cantrell v. Thurman, supra at 512-513; Poss v. More-

land, 253 Ga. 730, 731-732 (324 SE2d 456) (1985);

accord City of Cave Spring v. Mason, 252 Ga. 3, 4-5 (310

SE2d 892) (1984).

Here, the medical policies were promulgated and car-

ried out under the mandate of a state statute requiring

that a county provide adequate medical care for its

inmates. OCGA §42-5-2. Howard was never examined

by a physician in the jail clinic from April 23, 1992,

through May 25, 1992, when he died. Howard was seen

only by under-trained LPNs under the practices and pol-

icies promulgated by the defendants. It was only after

Howard reached a diabetic stupor that a jailor, not jail

medical personnel, called 911 for an ambulance to trans-

port Howard to the hospital emergency room. When

the paramedics examined Howard, they immediately

suspected diabetes from the acetone smell on Howard’s

breath, his respiration, and his non-responsiveness except

to pain. Therefore, the paramedics administered a simple

fingerstick glucose test that showed the maximum glu-

cose level possible of 400+ on that device, indicating

diabetes. Thus, Howard’s critical medical condition was

18a

obvious to a properly trained paramedic. The LPNs

should have recognized earlier the clinical signs and

symptoms of diabetes or realized, at the minimum, that

this profoundly sick inmate needed to see a physician.

This was a violation of a constitutional right that was

coupled with causation.

The Supreme Court . . . set forth an analysis of

the ‘‘under-color-of-state-law” part of the .

two-part require-[410]ment. The conduct causing

the deprivation must be fairly attributable to the

state in order to be conduct “under-color-of-state-

law.” This is characterized as the “fair attribution”

test. It is itself broken into a two part approach

which we outline here for ease in application to the

facts of this case[:] A. The deprivation must be

caused by: (i) The exercise of some right or privi-

lege created by the state, or (ii) a rule of conduct

imposed by the state, or (iii) a person for whom the

state is responsible. B. The party charged with the

deprivation must be a “‘state actor” in that: (i) He is

a state official or (ii) he has acted together with or

has obtained significant aid from state officials, or

(iii) his conduct is otherwise chargeable to the state.

A and B are separate requirements each of which is

necessary to establish conduct “under-color-of-

state-law.”

Poss v. Moreland, supra at 731-732, citing Lugar v.

Edmondson Oil Co., 457 U.S. 922 (102 SC 2744, 73

LE2d 482) (1982); accord Cantrell v. Thurman, supra

at 513. Thus, under this test, a fact question exists as

to whether there is a causal connection between the

implementation of jail medical policies under-color-of-

state-law and Howard’s death.

2. Plaintiffs contend that the trial court erred in grant-

ing summary judgment on their various state claims.

19a

(a) While OCGA §42-5-2 (a) imposes the duty and

the cost for medical care of inmates in the custody of a

county upon the county, such statute did not waive

sovereign immunity of the county ot irs agents and

employees. Art. I, Sec. II, Par. IX of the 1983 Georgia

Constitution created constitutional sovereign immun-

ity for the state and its political subdivisions. The

Georgia Tort Claims Act, OCGA §50-21-20 et seq.,

specifically excluded tort suits against counties.

Further, the county sheriff in his official Capacity is

immune from tort liability in performing an official

function and may be liable only to the extent that

the county had waived sovereign immunity by statute.

See Seay v. Cleveland, 270 Ga. 64, 65 (1) (508 SE2d

159) (1998); Gilbert v. Richardson, 264 Ga. 744 (452

SE2d 476) (1994). “[A] county is not liable to suit

for any cause of action unless made so by statute.”

OCGA §36-14. “This includes actions brought under

a theory of negligence as the plaintiffs have asserted in

this case. Early County v. Fincher, 184 Ga. App. 47,

49 (2) (360 SE2d 602) (1987).” (Punctuation omit-

ted.) Schulze v. DeKalb County, 230 Ga. App. 305,

307 (496 SE2d 273) (1998). Thus, the City of Colum-

bus, Muscogee County, as well as Sheriff Hodge and

LPNs Chapman, McLeod, and Thompson in their official

Capacities, are all protected from tort action by sovereign

immunity. See Seay v. Cleveland, supra at 65; [411]

Gilbert v. Richardson, supra.

(b) Sheriff Hodge and LPNs Chapman, McLeod, and

Thompson were all sued in their individual Capacities, as

well as their official capacities.

“*|Hodge] might be held liable for negligent super-

vision [when he has] been sued in his personal capacity

20a

[.] [Cit.]” Seay v. Cleveland, supra at 65; see also

Gilbert v. Richardson, supra at 754. Since the require-

ments of supervision, including adequate training and

enforcement of all policies, practices, and protocol,

are ministerial in nature, then, in his individual capacity,

Sheriff Hodge has no protection by official or quali-

fied immunity. See Seay v. Cleveland, supra at 65-66,

n. 1; see also Gilbert v. Richardson, supra at 750.

Providing adequate medical attention for inmates

under defendants’ custody and control is a minis-

terial act by the sheriff and his or her deputies. .

because medical care is a fundamental right and is

not discretionary in requiring medical care; thus,

such act is not subject to either sovereign immun-

ity or official immunity. OCGA § §42-4-4 (a) (2);

42-5-2 (a); Davis v. City of Roswell, supra; Johnson

v. Mayor &c. of Carrollton, 249 Ga. 173 (288

SE2d 565) (1982); Macon-Bibb County Hosp. Auth.

v. Houston County, 207 Ga. App. 530 (428 SE2d

374) (1993); Webb v. Carroll County, supra; Cher-

okee County v. North Cobb Surgical Assoc., 221

Ga. App. 496, 499 (2) (471 SE2d 561) (1996);

Alford v, Osei-Kwasi, supra. In contrast, the deter-

mination of what medical treatment to provide ts

an act of discretion subject to official immunity.

See Schmidt v. Adams, 211 Ga. App. 156, 157

(438 SE2d 659) (1993).

(Emphasis in original.) Cantrell v. Thurman, supra at

514 (4).

The dissent cites Lowe v. Jones County, 231 Ga. App.

372, 373 (499 SE2d 348) (1998) for the proposition that

training and supervision of law enforcement personnel

were discretionary acts. In that case, the sheriff was sued

in his official acpacity only but had the protection of

sovereign immunity rather than official immunity for the

2la

conduct of a deputy in attempting to arrest a motorist

for DUI. See Seay v. Cleveland, supra at 65; Gilbert v.

Richardson, supra at 754. In this case the sheriff was

sued in his individual capacity as well as his official

capacity. If the dicta in Lowe v. Jones County, is a cor-

rect statement of the law, then, as stated in dicta of the

Supreme Court, “[a]lthough [the sheriff] might be held

liable for negligent supervision had he been sued in his

personal capacity,” in Seay v. Cleveland, supra, based

upon Gilbert v. Richardson, supra, is to be treated as an

incorrect statement of the law by the dissent and accorded

no force [412] and effect? If the statement of the Sup-

reme Court is a correct statement of law, then supervision

in a personal capacity is not discretionary but ministerial.

The dissent relies upon cases dealing with supervision of

law enforcement personnel as a discretionary rather than

a ministerial act; such authority does not deal with jail-

ors, who lack peace officer certification, nor medical

personnel. Therefore, any language in such opinions as

to ministerial versus discretionary acts of non-peace

officers was dicta.

Schmidt v. Adams, supra, is good law but inapplic-

able to the facts of this case, because such case was

based upon a failure to diagnose by the physician’s

assistant-nurse, a discretionary act, and physician’s assist-

ants under OCGA §43-34-101 et seq. have broad dis-

cretion to carry out medical treatment under the super-

vision of a physician that a registered nurse or an LPN

cannot perform. In this case, the LPNs exercised no

discretion, because they failed to allow the patient to

be examined by a physician when the clinical signs

and symptoms under the protocol mandated either a

physician examination or an ambulance to take the

prisoner to the emergency room, failed to accurately

22a

report the existing signs and symptoms to the jail phys-

ician on call, and failed to act in following clearly set-

out guidelines, all ministerial acts requiring no exercise

of deliberation and judgment. Thus, Schmidt v. Adams

is distinguishable from this case.

An LPN has the least training and can exercise the

least discretion as a licensed health care provider. See

OCGA §43-26-30 et seq.

“The practice of licensed practical nursing” means

the provision of care for compensation, under the

supervision of a physician practicing medicine, a

dentist practicing dentistry, a podiatrist practicing

podiatry, or a registered nurse practicing nursing

in accordance with applicable provisions of law.

Such care shall relate to the maintenance of health

and prevention of illness through acts authorized

by the board, which shall include, but not be lim-

ited to, the following: (A) Participating in the

assessment, planning, implementation, and evalua-

tion of the delivery of health care services and other

specialized tasks when appropriately trained and

consistent with board rules and regulations; (B)

Providing direct personal patient observation, care,

and assistance in hospitals, clinics, nursing homes, or

emergency treatment facilities, or other health care

facilities in areas of practice including, but not lim-

ited to: coronary care, intensive care, emergency

treatment, surgical care and recovery, obstetrics,

pediatrics, outpatient services, home health care,

or other such areas of practice; (C) Performing com-

fort and safety measures; (D) Administering treat-

ments and medica-[413] tion; and (E) Participating

in the management and supervision of unlicensed

personnel in the delivery of patient care.

OCGA §43-26-32 (7).

23a

A registered nurse requires a different license and qual-

ifications from an LPN; therefore, an RN has greater dis-

cretion in patient care. See OCGA §43-26-1.

“Practice nursing” or “practice of nursing” means

to perform for compensation or the performance for

compensattion of any act in the care and counsel of

the ill, injured, or infirm, and in the promotion and

maintenance of health with individuals, groups, or

both throughout the life span. It requires substan-

tial specialized knowledge of the humanities, natural

sciences, social sciences, and nursing theory as a

basis for assessment, nursing diagnosis, planning,

intervention, and evaluation. It includes, but is not

limited to, provision of nursing care; administration,

supervision, evaluation, or any combination thereof,

of nursing practice; teaching; counseling; the admin-

istration of medications and treatments as pre-

scribed by a physician practicing medicine in accord-

ance with Article 2 of Chapter 34 of this title, ora

dentist practicing dentistry in accordance with

Chapter 11 of this title, or a podiatrist practicing

podiatry in accordance with Chapter 35 of this

title.

OCGA §43-26-3 (6).

The dissent cites Edwards v. Dept. of Children &c.

Sves., 236 Ga. App. 696, 699 (512 SE2d 339) (1999)

and mistakes the discretionary health care powers set

forth in this case, which only RNs possess, with the lim-

ited discretionary powers of an LPN in this case. As des-

cribed in the licensing statutes, the discretion is not the

same. While this case merely says “nurses,” their dis-

cretionary powers by statute are neither conferred upon

nor exercisable by LPNs. See OCGA §43-26-32 (7).

Further, the dissent fails to distinguish Edwards v. Dept.

of Children &c. Sucs., supra, an action under the Georgia

24a

Tort Claims Act, OCGA §50-21-23 waiving sovereign

immunity, from a suit against a city/county employee

under official immunity. OCGA §50-21-22 (2) defines

“discretionary function or duty” for purposes of the

Georgia Tort Claims Act only; it is ‘a function or duty

requiring a state officer or employee to exercise his or

her policy judgment in choosing among alternate courses

of action based upon a consideration of social, political,

or economic factors.” Even under the Georgia Tort

Claims Act, this court’s interpretation of ‘‘discretionary

function” in Edwards v. Dept. of Children &c. Svcs.,

supra, appears to [414] be an overly broad statutory

construction. ‘‘The scope of the discretionary function

exception urged by [the dissent], which would include

any decision affected by ‘social, political, or economic

factors,’ is so broad as t make the exception swallow the

waiver.” Dept. of Transp. v. Brown, 267 Ga. 6, 7 (1)

(471 SE2d 849 (1996); accord Dept. of Transp. v.

Brown, 218 Ga. App. 178, 180-182 (2) (460 SE2d 812)

(1995). Clearly, Edwards v. Dept. of Children S&c.

Sucs., supra is distinguished from this case on both the

law and facts.

Further, since the sheriff and the LPNs were sued in

their individual capacities, the record raised serious

questions as to conscious indifference by such defend-

ants as to the deceased’s medical condition and treat-

ment so that a jury could find that their conduct

amounted to wilfulness, malice, or corruption as actual

malice. See Merrow v. Hawkins, 266 Ga. 390 (467

SE2d 336) (1996). Thus, the trial court erred in grant-

ing summary judgment on such issue.

As to LPNs Chapman, McLeod, and Thompson, to the

extent that their failure to diagnose or to treat approp-

riately was a discreionary act, qualified or official immun-

25a

ity protected them from tort liability. See Gilbert v.

Richardson, supra at 750; Schulze v. DeKalb County,

supra at 308. However, to the extent that their refusal

or delay in administering medical care and treatment and

their refusal to call an ambulance when Howard’s condi-

tion exceeded the protocol mandating transfer to the

hospital did not require the exercise of discretion, they

lack qualified or official immunity for performance of

their ministerial duties. See Seay v. Cleveland, supra at

65-66, n. 1; Gilbert v. Richardson, supra at 750.

A ministerial act is commonly one that is simple,

absolute, and definite, arising under conditions

admitted or proved to exist, and requiring merely

the execution of a specific duty. A discretionary

act, however, calls for the exercise of personal

deliberation and judgment, which in turn entails

examining the facts, reaching reasoned conclusions,

and acting on them in a way not specifically dir-

ected.

(Citations and punctuation omitted.) Schulze v. DeKalb

County, supra at 308 (2).

Thus, some of the LPNs’ acts or omissions are entitled

to official immunity while other acts or omissions con-

stitute ministerial conduct for which they may be found

liabie in tort. Therefore, the trial court erred in granting

summary judgment as to those ministerial acts and omis-

sions.

Case No. A99A1258

3. Plaintiffs contend that the trial court erred in grant-

ing sum-]415]mary judgment to Dr. Chase on the 42

USCA §1983 action for violating Howard’s due process

rights and his rights under the Eighth Amendment of the

United States Constitution to be free from cruel and

26a

unusual punishment, iLe., grossly inadequate medical

care and failure to treat Howard. We agree for the reas-

ons set forth in Division 1, which controls.

4. Plaintiffs contend that the trial court erred in grant-

ing summary judgment on their various state claims as

to Dr. Chase. We agree.

As a county employee acting in his official capacity,

Dr. Chase was covered by sovereign immunity while

acting as medical director for the jail, because he was

performing such duties in the course of his employment

with the city; therefore, he cannot be liable for negli-

gent supervision or training of the medical staff at the

jail or for its policies. See Art. I, Sec. I], Par. IX, 1983

Ga. Const.; OCGA §50-21-20 et seq.; Seay v. Cleve-

land, supra at 65 (1); Harry v. Glynn County, 269 Ga.

503, 505 (501 SE2d 196) (1998); Gilbert v. Richard-

son, supra; Schulze v. DeKalb County, supra at 308;

Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438)

(1985).

However, as a medical doctor, he was not acting in

the course of his official duties as a county employee

and jail medical director when he failed to act in this

case, but, instead, was acting as a physician, so that his

alleged negligence was simply that of a medical doctor

who failed to provide treatment to a patient. His pri-

mary duty in this instance was to his patient ~ather than

to the city. Keenan v. Plouffe, 267 Ga. 791, 794 (2)

(482 SE2d 253) (1997); see also Davis v. Stover, 258

Ga. 156 (366 SE2d 670) (1988); Schmidt v. Adams,

supra at 157-158; Jackson v. Miller, supra; Roberts v.

Grigsby, 177 Ga. App. 377, 378 (339 SE2d 633) (1985);

cf. dicta in Cantrell v. Thurman, supra at 515. A phys-

ician’s professional standing creates a trusting relation-

ship that cannot be breached with impunity. A profes-

27a

sional person is liable for an abuse of the trust reposed

in him by the public, provisions of the compensation

notwithstanding. A prisoner is compelled to trust that

his treatment will be made by the doctor’s independent

professional judgment. Because of the relationship

between physicians and patients, jail physicians cannot

use the sovereign immunity law as a shield to insulate

themselves from individual liability for medical mal-

practice claims. Keenan v. Plouffe, supra at 795.

Since Dr. Chase failed to go to the jail and examine

or treat Howard or to have him transferred to the hos-

pital, instead choosing to order a change in medication

without knowing all of the clinical signs and symptoms

that a reasonable examination would disclose, there

was no exercise of discretion as to Howard’s diagnosis

and treatment. Therefore, Swofford v. Cooper, 184

Ga. App. 50, 52-53 (1), (2) (360 SE2d 624) (1987),

aff'd, Cooper v. Swofford, 258 Ga. 143 (368 SE2d

[416] 518) (1988), and Roberts v. Grigsby, supra at

379-383 (Deen, P.J., concurring specially), which deal

with the exercise of discretion, are inapplicable to this

case. Swofford v. Cooper, supra, did not deal with a

medical diagnosis or treatment, but with a decision to

allow a psychiatric leave as part of therapy. Likewise,

in Roberts v. Grigsby, supra, the chief of psychology

made the decision to allow a psychiatric patient to be

released.

The case against Dr. Chase is supported by an expert

opinion that he deviated from the standard of care in

failing to go to the jail after hearing the clinical signs

from the nurse at 11:00 p.m. on May 23, 1992. He

failed to examine, treat, or transfer Howard to the hos-

pital. Therefore, there existed a material issue of fact

for jury determination. Thus, this was a simple medical

28a

malpractice action for failure to examine, treat, or

transfer. The trial court erred in granting summary

judgment to Dr. Chase.

| 5. Plaintiffs contend that the trial court abused its

discretion in denying their renewed motion for sanc-

tions.

Plaintiffs sought to strike Sheriff Hodge’s answer for

wilful failure to comply with a discovery order. The

trial court, in the exercise of its sound discretion, on

plaintiffs’ renewed motion for sanctions denied the

ultimate sanction of striking the defensive pleadings

and entering a default judgment against Hodge.

Dismissal of the answer and entry of a default judg-

ment against a defendant who is in wilful, in bad faith,

or in conscious disregard of an order compelling discov-

ery are an appropriate sanction. Didio v. Chess, 218 Ga.

App. 550, 551 (462 SE2d 450) (1995); Smith v. Nat.

Bank of Ga., 182 Ga. App. 55, 58 (354 SE2d 678)

(1987). Neither the movant nor the trial court need find

actual wilfulness, but only a conscious or intentional act

in disregarding the duty to make discovery is necessary

for imposing the sanction of default. Resource Network

Intl_v. Ritz-Carlton Hotel Co., 232 Ga. App. 242 (1)

(501 SE2d 573) (1998); Potter v. American Medcare

Corp., 225 Ga. App. 343, 346 (484 SE2d 43) (1997);

Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344,

345 (373 SE2d 50) (1988); Sta-Power Indus. v. Avant,

134 Ga. App. 952, 956-957 (2) (216 SE2d 897) (1975).

However, ‘‘[t]rial judges have broad discretion in

controlling discovery, including imposition of sanctions,

and appellate courts will not reverse a trial court’s deci-

sion on such matters unless there has been a clear abuse

of discretion.” (Citations and punctuation omitted.)

West v. Equifax Credit Information Sucs., 230 Ga. App.

29a

41, 42 (1) (495 SE2d 300) (1987). The appellate courts

refuse to interfere with a trial court’s exercise of its broad

discretion, in the absence of abuse under the discovery

provisions of the Civil Practice Act. Gen. Motors Corp.

v. Conkle, 226 Ga. App. 34, 38 (1) (436 SE2d 180)

(1997). The trial court should attempt to compel com-

pliance with its orders [417] through the imposition of

sanctions less than dismissal. The drastic sanctions of dis-

missal and default are imposed only in the most flagrant

cases — where the failure is wilful, in bad faith, or in con-

scious disregard of an order. However, a very broad

discretion is granted judges in applying sanctions to

assure compliance with court orders. Joel v. Duet Hold-

ings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987);

see also Gen. Motors Corp. v. Conkle, supra at 44; Loftin

v. Gulf Contracting Co., 224 Ga. App. 210, 214-215 (3)

(480 SE2d 604) (1997); Hernandez v. State of Ga., 200

Ga. App. 368, 369 (408 SE2d 160) (1991).

However, the failure of the trial court to impose any

sanctions at all when discovery abuse has been flagrant

constitutes an abuse of discretion. Vlasz v. Schwetk-

hardt, 178 Ga. App. 512, 516-517 (2) (343 SE2d 749)

(1986); Hohlstein v. White, 117 Ga. App. 207 (1) (160

SE2d 232) (1968). Where no sanction has been imposed

in a flagrant case and there was no evidence of a legiti-

mate excuse before the trial court, this Court will

“remand for reconsideration and the imposition of such

sanctions as the trial court deems appropriate.” Vlasz

v. Schwetkhardt, supra at 517. Even so, it is for the trial

court, from all the facts and circumstances, to decide

what sanction is approproate. Therefore, the trial court

in this case did not err in denying the imposition of the

ultimate sanction of default when it previously imposed

other sanctions.

30a

Judgment affirmed in part and reversed in part and

remanded with direction. Pope, P. J., Barnes and Elling-

ton, JJ., concur in judgment only. Johnson, C. J.,

Blackburn, P. J., and Smith, J., concur in judgment only

in part and dissent in part.

SMITH, Judge, concurring in judgment only in part

and dissenting in part.

I concur in the result reached in Divisions 1, 2 (a), 3,

4, and 5 of the majority, but I do not agree with all that

is said in those divisions. Because I believe that they

contain much that is not necessary to the analysis, I

cannot concur fully and must concur in the judgment

only as to those divisions.

I must respectfully dissent, however, to Division 2 (b)

of the opinion. The majority opinion declares, with

respect to Sheriff Hodge, that “the requirements of

supervision, including of adequate training and enforce-

ment of all policies, practices, and protocol, are minis-

terial in nature.” But neither Gilbert v. Richardson,

264 Ga. 744 (452 SE2d 476) (1994), nor Seay v. Cleve-

land, 270 Ga. 65 (508 SE2d 159) (1998), supports that

broad and far-reaching proposition.”

2In Seay, the Supreme Court of Georgia merely reiterated

that a sheriff may be sued in his individual capacity only to the

extent he is not protected by official or qualified immunity. Id.

at 65-66, n. 1. Gilbert in fact concluded that the actions of the

police officer in that case were discretionary rather than minister-

ial and affirmed the grant of summary judgment to the officer

under the doctrine of official immunity. Gilbert, supra at 752-

753 (6).

3la

[418] As the majority correctly observes,

“‘[a] ministerial act is commonly one that is simple,

absolute, and definite, arising under conditions

admitted or proved to exist, and requiring merely

the execution of a specific duty. A discretionary

act, however, calls for the exercise of personal

deliberation and judgment, which in turn entails

examining the facts, reaching reasoned conclusions,

and acting on them in a way not specifically dir-

ected.” [Cit.]

Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d

275) (1990). Supervision of a law enforcement agency

is generally a discretionary than ministerial function.

Lowe v. Jones County, 231 Ga. App. 372, 373 (3) (499

SE2d 348) (1998) (‘“ ‘The operation of a police depart-

ment, including the degree of training and supervision to

be provided its officers, is a discretionary governmental

function of the municipality as opposed to a ministerial,

proprietary, or administratively rouine function.’ ”). The

majority has not demonstrated the basis for its con-

clusion that Sheriff Hodge’s acts were ministerial in

nature.

The majority also has failed to set forth any basis

for holding that the actions of the licensed practical

nurses employed at the jail were ministerial rather than

discretionary. Cantrell v. Thurman, 231 Ga. App. 510,

514 (4) (499 SE2d 416) (1998), written by the author

of the majority, also declares that the general obligation

to provide medical care to prisoners is a ministerial act

by the sheriff, but the authorities cited therein do not

support that assertion. The writer of the majority also

proposed this view of ministerial functions in a dis-

sent to Coffey v. Brooks County, 231 Ga. App. 886,

895 (500 SE2d 341) (1998), rev’d on other grounds,

Rowe v. Coffey, 270 Ga. 715 (515 SE2d 375) (1999).

32a

The law as currently established by this court is quite

different. In Schmidt v. Adams, 211 Ga. App. 156,

157 (438 SE2d 659) (1993) (full concurrence on issue

of discretionary function), we held that the actions of

a physician’s assistant employed by a jail in failing

properly to diagnose a condition and failing to order

a timely transfer to a hospital were “based on his exam-

ination of the facts, his experience, and the exercise

of his best judgment,” and therefore were discretion-

ary. The declaration of the existence of a “protocol”

does not create a ministerial duty. The medical field

has long published diagnostic and procedural manuals

that establish criteria and make recommenda-[419]

tions for the diagnosis and treatment of disease. The

mere publication of such standards, however, does not

remove from the practice of medicine or nursing the

requirement that, as professionals, nurses examine the

facts and exercise judgment, as in Schmidt.

In the recent decision of Edwards v. Dept. of Child-

ren &c. Sucs., 236 Ga. App. 696 (512 SE2d 339) (1999),

the parents of a deceased inmate alleged that workers

and nurses at a youth development center had an abso-

lute, nondiscretionary duty to summon medical aid for

their daughter and failed to do so within a reasonable

time. We concluded, however, that the “type of care

and support and what and how much medical treatment

to provide are decisions that must be left to the dis-

cretion of the employees who work with the inmates.

[Cits.]” Id. at 700. Moreover, Edwards itself relies

upon Cantrell, supra, to hold that while the county had

a duty to provide medical care and treatment, ‘what

medical care to provide is discretionary and therefore

is subject to immunity. [Cit.]’’ Edwards, supra at 699.

33a

We note that the Supreme Court of Georgia has

granted certiorari in Edwards specifically to consider

whether this court “improperly expanded the defini-

tion of ‘discretionary function’ found in OCGA §50-21-

22,” part of the Georgia Tort Claims Act, in light of

the Supreme Court’s decision in Dept. of Transp. v.

Brown, 267 Ga. 6 (471 SE2d 849) (1996), involving the

distinction between design decisions and policy deci-

sions in opening a highway intersection to traffic. But

even if the scope of the discretionary function may be

altered by the Supreme Court in the near future, it is

nevertheless incumbent upon the majority at this time

to articulate the reasons for its determination that the

decisions made here were ministerial and not discre-

tionary. Moreover, it appears that this result will require

that we overrule Lowe and Schmidt and the decisions

upon which they rely, because Cantrell is wholly incon-

sistent with the existing law in Georgia governing minis-

terial and discretionary acts.

For these reasons, I must respectfully dissent from

Division 2 (b) of the majority opinion.

I am authorized to state that Chief Judge Johnson and

Presiding Judge Blackburn join in this opinion.

DECIDED JULY 15, 1999 —

RECONSIDERATIONS DENIED July 29, 1999 —

CERT. APPLIED FOR.

Wrongful death, etc. Muscogee Superior Court. Before

Judge Langford, Senior Judge.

Burkey & Burkey, Frederick D. Burkey, for appellants.

Page, Scrantom, Sprouse, Tucker & Ford, W. G. Scran-

tom, Jr., James C. Clark, Jr., Eugene H. Polleys, Jr., for

appellees (case no. A99A0680).

34a

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert

C. Martin, [420] Jr., Clarence M. Mullin, Carter R. Page,

for appellee (case no. A99A1258).

35a

APPENDIX B

COURT OF APPEALS

OF THE STATE OF GEORGIA

ATLANTA,

JUL 29 1999

The Court of Appeals hereby passes the following order:

A99A0680. HOWARD et al. v. CITY OF COLUMBUS,

MUSCOGEE COUNTY, GEORGIA et al.

Motions for reconsideration have been filed by the

City of Columbus, Muscogee County, Georgia; J. E.

“Gene” Hodge, Sheriff of Muscogee County, Georgia;

Dr. Jerry Stephens Chase; Mildred Chapman, L. P. N.;

Lawrence Thompson L. P. N.; and Ava J. McLeod L. P.

N. Said motions having been considered by this Court,

the same are hereby denied.

Court of Appeals of the State of Geogia

Clerk’s Office, Atlanta JUL 29 1999

I certify that the above ts a true extract from

the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

Clerk.

/s/ William C. Martin

36a

APPENDIX C

SUPREME COURT OF THE STATE OF GEORGIA

CLERK’S OFFICE

ATLANTA

DATE: January 14, 2000

Eugene H. Polleys, Jr., City Atty.

P. O. Box 1340

Columbus GA 31902

Case No. 899C1687

CITY OF COLUMBUS et al. v. CONSWELLA L. HOW-

ARD et al.

COURT OF APPEALS CASE NO. A99A0680

The Supreme Court today denied the petition for cer-

tiorari in this case.

All the Justices concur.

Sincerely,

Sherie M. Welch, Clerk

37a

APPENDIX D

CONSTITUTIONAL PROVISIONS

Amendment VIII

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

Amendment XIV

Section 1]

[Citizenship Rights Not to Be Abridged by States]

All persons bom or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

38a

APPENDIX E

OTHER PROVISIONS AND STATUTES

United States Code — Title 42

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any

action brought against a judicial officer for an act or

omission taken in such officer’s judicial capacity, injunc-

tive relief shall not be granted unless a declaratory decree

was violated or declaratory relief was unavailable. For

the purposes of this section, any Act of Congress appli-

cable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

OFFICIAL CODE OF GEORGIA ANNOTATED

42-5-2. Responsibilities of governmental unit with cus-

- tody of inmate generally; costs of emergency and

follow-up care; access to medical services or

hospital care for inmates. ,

39a

(a) Except as provided in subsection (b) of this Code

section, it shall be the responsibility of the governmental

unit, subdivision, or agency having the physical custody

of an inmate to maintain the inmate, furnishing him food,

clothing, and any needed medical and hospital attention;

to defend any habeas corpus or other proceedings insti-

tuted by or on behalf of the inmate; and to bear all

expenses relative to any escape and recapture, including

the expenses of extradition. Except as provided in sub-

section (b) of this Code section, it shall be the responsi-

bility of the department to bear the costs of any reason-

able and necessary emergency medical and hospital care

which is provided to any inmate after the receipt by the

department of the notice provided by subsection (a) of

Code Section 42-5-50 who is in the physical custody of

any other political subdivision or governmental agency

of this state, except a county correctional institution, if

the inmate is available and eligible for the transfer of his

custody to the department pursuant to Code Section

42-5-50. Except as provided in subsection (b) of this

Code section, the department shall also bear the costs of

any reasonable and necessary follow-up medical or hos-

pital care rendered to any such inmate as a result of the

initial emergency care and treatment of the inmate. With

respect to state inmates housed in county correctional

institutions, the department shail bear the costs of direct

medical services required for emergency medical condi-

tions posing an immediate threat to life or limb if the

inmate cannot be placed in a state institution for the

receipt of this care. The responsibility for payment will

commence when the costs for direct medical services

exceed an amount specified by rules and regulations of

the Board of Corrections. The department will pay only

the balance in excess of the specified amount. Except

as provided in subsection (b) of this Code section, it shall

40a

remain the responsibility of the governmental unit having

the physical custody of an inmate to bear the costs of

such medical and hospital care, if the custody of the

inmate has been transferred from the department pur-

suant to any order of any court within this state. The

department shall have the authority to promulgate rules

and regulations relative to payment of such medical and

hospital costs by the department.

(b)(1) The officer in charge will provide an inmate access

to medical services or hospital care and may arrange for

the inmate’s health insurance carrier to pay the health

care provider for the services or care rendered as provided

in Article 3 of Chapter 4 of this title.

(2) With respect to an inmate covered under Article 3

of Chapter 4 of this title, the costs of any medical ser-

vices, emergency medical and hospital care, or follow-up

medical or hospital care as provided in subsection (a) of

this Code section for which a local governmental unit is

responsible shall mean the costs of such medical services

and hospital care which have not been paid by the

inmate’s health insurance carrier or the Department of

Community Health. (Ga. L. 1956, p. 161, §13; Ga. L.

1982, p. 1361, §§1, 2; Ga. L. 1983, p. 3, §31; Ga. L.

1986, p. 493, §1; Ga. L. 1992, p. 2125, §3; Ga. L.

1999, p. 296, §24.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.