# FILED July 31, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk SHEIL A PROFFITT, ) ) Plaintiff /Appella nt, )

) Davidson

Circuit ) No. 95C-2416 VS. ) ) Appeal No. ) 01A01-9604-CV-00144 PRISON HEAL

TH SERVICES, INC., ) ) Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CI RCUIT COURT OF DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE HONORABLE HAMI

LTON V. GAYDEN, JR., JUDGE
RONALD W. McNUTT Williams and Dinkins 203 Second Avenue , North Nashville, Tennessee 37201 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT
CYRUS L. BOOKER Booker & Associates First American Center, Suite 1280 315 Deaderick Street Nashville, Tennessee 37238-1280 ATTORNEY FOR DEFENDANT/APPEL LEE
REVERSED AND REMANDED.
HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCURS: SAMUEL L . LEWIS, JUDGE
CONCURS IN SEPARATE OPINI ON WILL IAM C. KOCH, JR., JUDGE-2-

SHEIL A PROFFITT, ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 95C-2416 VS. ) ) Appeal No. ) 01A01-9604-CV-00144 PRISON HEAL

TH SERVICES, INC., ) ) Defendant/Appellee. )
O P I N I O N The cap tioned Pla

intiff ha s appeal ed from a summary judgmen t dismissing

her suit for fail ure of the Defe

ndant to pr

ovide needed trea

tment to Pla

intiff. Th e compla int alleg es: 1. Pl ai nt if

f i s a ci ti ze n o f D on el so n, Da vi ds on Co un ty, Tenness ee. At the

time her c ause of a

ction ar ose for d elibera te indifference to serious medical needs and f ailure to exercise ordinar y c are to pr

ovide med

ical nee ds, she wa s incarc erated at the Tennessee Prison for Women in Davidson County, Tennessee. 2. Plaintiff was dependent upon Prison Health Services to provide for her medical needs while incar cerated in Davidson County. 3. Pl ai nt if

f S he il a P ro ff

it t w as in ca rc er at ed at th e B ra dl ey County Justice Center with a broken leg and a leg cast prior to her arrival at the Tennessee Prison for Women on April 25, 1994. Prior to her departure, she was examined by Pat Younger, M.D., a physician of the

Orthopedic Group of Cleveland, I nc., who determined that her fracture was not he aling and that her transfixing screws should be removed from the femur to promote heali ng. 4. Ms. Proffitt was transferred to the Tennessee Prison for Women. During her April 25, 1994 initial medical evaluation, she was examined by Dr. Ma nning who indicated she would be seen by an orthop edic spe cialist. 5. On June 10, 1994, Ms. Proffitt was evaluated by Patric k LeCo rps, M.D. at Mehar

ry /Hubbar d Hospital . Dr. L

eCorps intended to conduct an x-ray

but was inf

ormed by the offic ers escorting her that there was no author ization for that diagnostic procedure. 6. On July 21, 1994, Plaintiff’s attorney called the prison to speak to the Assistant Warden to emphasize her need for treatment. On July 29, 1994, plaintiff saw Donald B oatwright, M.D. at the prison, who informed her she would be evaluated again b y the orthopedic spec ialist.-3- 7. On August 12, 1994, plaintiff was again eva luated by Dr. Patrick L

eCorps at Meharry

/Hubbard Hospital. Dr. LeCorps determined that Ms. Proffitt neede d surgery to remove two bolts at the knee to allow the femur bone to heal. Despite her immediate need for surg ery to re move the pins because her bones were not healing , and despite Dr. LeCorps’ request that she ha ve the surgery , Prison Health Se rv ic es fa il ed to ar ra ng e t he su rg er y. 9. Plaintiff was recommended for parole but was unable to be paroled to Samaritan Recovery Center because of her untreated leg condition. Therefore her parole plan was denied on August 22, 1994 by Par ole Officer Clara Vaughn. Mr . Tom Vance wrote to the Parole Board the appended letter. As a result, the Parole Board and Parole Offic er allowed her to be paroled in Novemb er into the

custody of Mr. and Mrs. Tom Vance. 12. Defendant Prison Health Services, I nc. is liable for the actions a nd omission s of its ag ents that v iolate pla intiff’srights pursuant to the common law doctrine of respondeat superior. 14. Defend ant Prison

Health Se

rvices, Inc ., throug

h its employees and a

gents, acted with deliberate indiffere nce to Sheila Proffitt’s serious medical needs in violation of the Eighth Amendment to the United States Constitution and 42 U.S.C., Se

ction 1983 . Defendant Priso n Health S ervice s acted under color of state law by virtue of its performance of state functions and its authority unde r state law. Although the complaint does not expressly a llege a contractual relationship betwee n the State of Tenne ssee and

the Defe ndant, the above qu otations r

aise an inference that th

e suit is in part based upon violation of a duty imposed by a contract between the State and the Defendant. The complaint also asserts liability for deliberate indifference w hich might be established even though no violation of the existing contract occurr ed.
Defendant moved for summary judgment supported by

affidavits of two physicia ns. The aff idavit of D onald Bo atwrig ht, M.D., s tates: My s pecialit

y isInte rnal Med icine. I serve a s Medica

l Director at the Tennessee Prison for Women (“TPW”), and have served in said position during all time relevant to the time period encompassed in this affidavit. I a m not an employee of PHS, but rather serve as an independent contrac tor under contract with PHS. 3. Ms. Proffitt arrived at TPW on or about April 25, 1994. I am aware

that part of Ms. Proffitt’s complaints related to a-4- request that a pin and/or sc rew (“s crews” ) be rem

oved fro m her leg . The scr

ews had b een plac ed prior to Ms. Prof

fitt’s arrival at TPW, as part of the procedure for r epairing a fractu re of Ms . Prof fitt ’s leg. 4. X-ray s were ta

ken of Ms. Proffitt’ s knee. A request was made for approval of surge ry to remove the

screws. A request was made for Dr. L eCorps to see Ms. Proffitt for an orthoped ic consul t. 5. The req

uest for surger y to remove t he screws was approved on May

27, 1994. In scheduling the surg ery, consideration is given to the priority given to the needed procedure. To the extent other inmates are in need of su rg ic al pr oc ed ur es , s ur ge ry for a p ar ti cu la r i nm at e m ay be del ayed if th ere is no med ical u rgency in pe rform ing the procedure which has been appr oved. 6. Ms. Proffitt was scheduled to see Dr. L eCorps on June 10, 199 5 (sic). Dr. L eCorps re quested a dditional x-rays, and schedule d Ms. Proffitt for a return visit. The requested additional x-ray s were taken in June, 1994. 7. Ms. Proffitt had a return visit to Dr. LeCorps in July, 1994. 8. Ms. Proffitt advised medical personnel on July 23, 1994, that she was scheduled to appear before the Parole Board on August 22, 1994. 9. The surgery

approved for Ms. Proffitt was not a high pri ority

procedu re. Ms. Pr

offitt wa s relea sed from prison in November, 1994, and the surgery had not been scheduled prior to her release. Ther e was no refusal on the part of PHS to ap

prove the surger y. T he surg ery

was approve d, but wasnot sched uled prio r to Ms. Pro ffitt’s release from prison. 10. The delay in pe

rforming surgery

did not constitute deliberate indifference or medica l malpractice or negligenc e. Ms. Proff itt’s cond ition was n ot such tha

t her med ical co nd it io n w as ma de wo rs e b y de la yin g s ur ge ry. 11. To my

knowledg e, at no time have a ny m edical personnel at TPW exhibited indifference, deliberate or otherwis e, to any

of Ms. Prof

fitt’s med ical nee ds. 12. The medic al care

render ed to Ms. Pr

offitt’smedical needs we re met du ring the period of her inca rcera tion at TPW.
The affidavit contains evidence that the need f or surgery

was confirmed on May

27, 1994, and that no surgery was scheduled prior to Plaintiff’s release on parole in Nove mber,-5-

1994, six mont

hs later. The only

explanatio n given

for the d elay is that “c onsidera

tion is given to the priority .” Also relevant is that employe es of Defendant were awa re of the possibility of parole, and that the af fiant was an independent-contract employ ee of Defendant who could and should have supported his conclusory statements with evidence that other more urgent surgery

prevented Plaintiff’s needed surger y for appr oximately six months..

The aff idavit of Craig U

nderwoo d states:
1. I am currently

a Regional Manager f

or Prison Health Services, Inc. 2. Prior to occupying my curre nt position, I was the Health Services Administrator at the Tennessee Prison for Women in Davidson County, Tennessee (“TPW”) and had been so employed f

rom June 15, 1991, until December 15, 1994. 3. I am aware

of the medical complaints of Plaintiff, Sheila Proffitt, Inmate No. 210324, as part of my duties and responsi bilities a t TWP. 4. I am a

ware tha t part of M s. Proffitt’s compl aints related to a request that a pin and/or screw ( “screws”) be removed from her leg. The scr ews had been placed prior to Ms. Proffitt’s arrival at TPW, as part of the procedure for repair ing a fr acture of Ms. Proffitt’ s leg. 5. A request was made for approval of surgery to re mo ve th e s cr ew s. Th e r eq ue st wa s a pp ro ve d o n M ay 27, 1994. 6. Once approval is obtained for surge ry, the dec ision relating to scheduling the

surger y isprimaril

y a medical decision. In scheduling the sur gery , consideration is given to the prio

rity given to the need ed procedure. To

the extent other inmates are in need of surgica l procedures, surgery

for a particular inma

te may be delay ed if the re is no me dical urgency in performing the procedure which a s been approved. 8. The surgery

approved for Ms. Proffitt was not a high priority procedur

e. Ms. Proffitt was released from prison in November, 1994, and the surgery had not been performed prior to her release. 9. There was no refusal on the part of PHS to approve the surgery . The surgery

was approved, but was not scheduled prior to Ms. Proffitt’s release from prison. 10. PH S d oe s n ot en ga ge in an y pa tt er n o f p ra ct ic e w he re by-6- the profit motive prevails over the medical needs of inmates, resulting in necessary

medical care being denied to inmates. PHS did not engage in any such practice with respect to the treatme nt rende red to Ms. Proffitt. 11. Medical staff at TPW are required to treat patients on the basis of all known medical conditions, and may not fail to do so in retaliation for any

conduct or actions on the part of an inmate. PHS does no t have an

y po licy or custom

which pe rmits any of its employ ees to exhi

bit delibe rate ind iffere nce to the medical n

eeds of an in ma te . P HS do es no t h av e a ny p ol ic y or cu st om wh er eb y necessary medical care is denied inmates because pr ofit motive prevail s over me dical ne eds. 12. The state of Tennessee retains final authority relating to the medical care rendered to inmates who a re confined to the custody of the Te

nnessee Department of Corrections and housed at TPW. 13. At no time h ave I , or any other me dical pe

rsonnel a t TP W, ex hi bi te d i nd if

fe re nc e, de li be ra te or ot he rw is e, to an y medical n eeds of M s. Proffitt. 14. To my

knowledg e, all of

Ms. Proff

itt’s medic al needs were met during the period of her inc arceration at TPW.
It is n oteworth

y th at the af

fiant wa s an emplo ye e of Def endant a nd that the

affida vit attempts to shift liability to the State by a conclusory

statement that is not supported by documentary e

vidence.
Plaintiff filed the affida vit of Char

les A. Rose

nberg , M.D. whic

h states: Charles A. Rosenberg, M.D., first being swor n according to law, dep oses and s ay s: I a m a phy sician with specia lty in interna

l medicine and have served as a consultant and e xpert witness in the field of delive ry of healt h servic es in priso ns and jai ls. The leve

l of medic al care

provided this inmate

at TPW was in ad eq ua te , u na cc ep ta bl e, an d b el ow th at of th e c om mu ni ty standard. Indeed, the c are provided in this respect appeared so cursory as to be c onsidered deliber ately indiffer ent to this inmate’s se ri ou s m ed ic al ne ed s. Th e i ne sc ap ab le co nc lu si on ar ri ve d a t b y this revie wer is tha t the dec ision to de

prive thisinmate fr

om re ce iv in g t hi s c le ar ly i nd ic at ed or th op ed ic ca re wa s m ot iv at ed by non-medi cal rea sons. An incarce rated in mate, at w

hatever level of custody, city , county, state or federal, is a ward of the co rr ec ti on al au th or it y in ch ar ge , w hi ch is re sp on si bl e for de li ve ry of commun

ity- level he alth car

e, as well as secu

rity . A contr

act health c are pro vider (s uch as PHS) , as an agent of the correctional authority in charg e, must meet a similar standard. Such a standard was not met in this case.-7- On appea l, Defendant insist s that this a ffidavit is inadmiss ible bec ause the affian t is not qualified under the geogra phical qualifications of TCA § 29-26-115(b). I t does not appear from the r

ecord th at this objection waspresent ed to the T

rial Cour t. Ordina rily a rule of evidence not invoked is waived. Burchett v. Stephens , Tenn App. 1990, 794 S.W.2d 745; Wachovid Bank & Trust Co
. NA v. Glass , Tenn. App. 1978, 57 5 S.W.2d 950. However, the judgmen t of the Tr

ial Court s tates: Plaintiff’s failure to provide competent expert proof in support of Plaintiff’s claims ---” This may indicate that the Tr ial Court excluded the Rosenberg affidavit sua sponte. In any event, as will appear hereafter , the competence of that evidence is not determinative of this appeal.
The depo sition of Dr. Patric k J. LeCo rps state s: Q. Now, with respect to the May 27th, 1994 authorization, what does it say with reg ard to when the surgery is to be scheduled? A. It’sto be scheduled with in three weeks un

less sy mptoms become m

ore ser ious or the

patient’ s conditio n chang es. Q. Do y ou know wh

ether the standa

rd that the

Departm ent of Correction applies for operations such as this is a standard of medical need? A. Well, all I know is that when a case is not considered urgent or an emerge

ncy, then PHS approved the cases between two and f our wee ks. Q. Do you know why that was not done in this particular case? A. I don’t really

know exactly why . No. Q. Is there any

medical reason why

it should not have been done with in three weeks or four we eks? A. No, not that I know of. Q. To y our knowl edge, how did Pri son Heal th Servic es receiv e income

or profits for med

ical ser vices?

- - --8- A. They have

a contract with the state. Then the state -- you know, the

states wa nt to have a budge t, so they contract the Prison

Health Se

rvices to take ca re of the medical p

roblems of the inmates. They ha

ve a straight fee every

year. T he prison has now -- they

contract some phy sicians to provide the care. Q. Would y ou get p aid by Prison He alth Services? A. Ye s. Si nc e I w as ju st a c on su lt an t, I wo ul d b il l f or my service s PHS, yes. I

would bill PH S for my

service s.
The deposition of Dr. Donald Boatwright contains little explicit information, but appare ntly attempts t

o shift the blame fo r delay to the fa ilure of D r. Le Corps to request authorization to proceed with the needed surgery . The deposition does authenticate an “Authorization of Service” from Defendant’s Utilization Review Coordinator to Dr. Boatwr ight unde r date of May 27, 1994. I

t states: Based upon the medical information that y ou have provided the Tennessee Women’s Prison Jail/Prison, the removal of pins and screw has been appr oved. An appointment has been approved for the removal of pin and

screws f rom the knee as an

outpatie nt service. Please sc

hedule w ithin 03 we eks unles s symptoms become m

ore seve re or the patient’ s conditio n chang es. Authorization for payment of ser vice is only during the period of actual confinement of the inmate under the custody of the Te

nnessee Women’s Prison Jail/Prison. Pa yme nt is ba se d u po n c ur re nt re as on ab le an d c us to ma ry charges of Blue Cross/Blue Shield, Medic are, Medicaid, or curr ent neg otiated r

ates. * All further tests, treatments, procedures and or admission or extended hospitalization must be pre-authorized to ensure payment of ser

vice. On appea l, no pres umption of

correctness foll ows a summa ry judgmen t which is a ruling o f law and

not of fa ct. Roberts v . Roberts , Tenn App. 1992, 843 S.W.2d 427.

It is th e burden of a par ty s eeking

a summary

judgmen t to show uncontrad

icted fa cts which entitle the movant to judgment as a matter of law. Tucker v. Metropolitan-9-

Government , Tenn. App. 1984, 686 S.W.2d 87; Read v. Thomas , Tenn. App. 1984, 679 S.W.2d 467.
In determining whe

ther or not a genuine issue of fact e xists in a summary judgment case, the Court must look at all the evidence, take the stronge st legitimate view of the evidence in favor of the opponent of the motion and indulge all reasonable inferences in favor of the opp onent; and, if ther e is any doubt as to

the conc lusion to be

drawn f rom the whole evidence, the motion must be denied, Dooley v. Evere tt , Tenn. App. 1990, 805 S.W.2d 380.
The comp laint alle ges two causes o f action

for the s ame injur

y, ( 1) Violat

ion of duty to provide remedial surgery within a reasonable time as required by contract, and (2) Independent of contra

ct, failure to provide remedial surger y in deliberate indiff

erence to the needs of Plaintiff.
The rules relating to motions for summary judgment place no burden of producing evidence upon the opponent of the motion except as contradiction or rebuttal of e vidence offere d by

the propo nent which, if unco ntradic ted or unr ebutted, entitle th

e movant t

o judgment as a matter of law.
In this case, the first inquiry must be, does the evidence supporting the motion for summary judgme

nt, if uncontradicted and unrebutted, entitle the Defenda nt to summary judgment as to either or both of the grounds stated in the complaint. The gravamen of the complaint is the failure of the Defendant to provide medical ser vice, rather than the quality of service s.
The defendant recognized this distinction, and undertook to show that the long de lay in delivery of a

uthorized services was not wrongful because of priorities. However, the conclusory a

ffidavit of a physic ian that the needs of plaintiff were not high priority , that-10-

consideration is given to priority of need and that surgery

may be dela

yed by need to perform other surgery

of higher priority

is not sufficient to exonerate Defendant of blame for delay as a matter of law. Uncontradicted evidence that needs of higher priority actually did rende

r defendant unable to supply the service sooner might suffice, but such spec ific and definitive evidence was not offered.
Defendant relies upon T.C.A. § 29-26-115 which provides in pertinent pa rt as follows: Claimant’s burden in malpractice action - Expert

testim ony - Pr esumpti on of negligence - Jur y instruct

ions. - (a) In a malpra

ctice action, the claimant shall have the burden of proving by

evidence as provided by

subsection (b): (1) The rec ognized s tandard of acce ptable pr ofession al practic e in the pr

ofession and the sp ecialty

thereof , if any , that the defe ndant pra ctices in the commu

nity in which he pract

ices or in a similar community at the time the alleg ed injury or wrongful action occurred; (2) That the d

efenda nt acted with less th an or fa

iled to ac t with ordinary and r

easonable care in accorda nce with such standard; and (3) As a proximate result of the defendant’s neglig ent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. (b) No person in a health care profession requiring licensure un de r t he la ws of

th is st at e s ha ll be co mp et en t t o t es ti fy in any court of la

w to establish the facts required to be established by subsection (a ) unless he was licensed to practice in the state or a contiguous border ing state a profess ion or spe cialty

which wou

ld make hi s expert testimony relevant to the issues in the ca se and which would mak

e his exper

t testimony

releva nt to the iss ues in th e c as e a nd ha d p ra ct ic ed th is pr ofes si on or sp ec ia lt y in one of these states during the y ear preceding the date that the a lleged injury or wrongful act o ccurred. This rule shall apply to expert witnesses testify ing for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witness otherwise would not be available.
This statu te is appli cable on

ly w here the suit is based upon fa

ilure to e xercise professional care and skill. As previously pointed out, the complaint is not based upon a-11-

violation of professional standards of skill or care in performing professional services, but upon a delay

in providing such

service s.

In Rural Educ

ational Ass oc. v. Bush , 42 Tenn. App. 34, 2 98 S.W.2d 761 . (1956), this Court held: Professional or expert testimony was not nec essary to

establish that leav ing a spo nge in Pla

intiff’sbody

was negligence. Any

layman would know that fa ct. 42 Tenn. App. At 47.
Followin g the re asoning

of the quoted autho

rity , “any lay man (tha t is, any reasona ble non expert), would know that a six months delay in providing approved surgery for a painful
co nd it io n i s n eg li ge nc e u nl es s e xc us ed by c on di ti on s w hi ch re qu ir ed th e d el ay.
The absence of expert testimony as required by

the statute does not justify a summary judgment in cases where an ordinary layman would be a

uthorized to find fault under the facts. Moreover, the evidence off ered by D efendant does not satisfy the requirement of the st at ue as to co nf or mi ty w it h t he st at ut or y pr ofes si on al st an da rd s f or sc he du li ng su rg er y.
Under the circumstances of the present c ase, the Defendant did not satisfy its burden of showin g that the unrea sonable d elay in providing surg ery

to Plaintif

f was without its fault as a matter of law. This being true, the Plaintiff was not under a burden to offer contradictory or rebut tal evide nce, an d the issue

of the co mpetenc y of

Plaintiff ’s profe ssional witness becomesmoot.

The lack of satisf actory and conc lusive ev

idence e xplaining the long and fac ially
unreaso nable de

lay in providing surg ery

for Plain tiff also prevent s a summar

y ju dgment in respect to the charge of de liberate indifference; for, under the evidence in this record, a jury could pro perly find that t

he long delay in scheduling sur

gery amounted

to delibe rate-12-

indifference to the prolonged pain of Plaintiff, f or which Defendant might be liable under West v. Atkins , 487 U.S. 42, 54 (1988).
The evidence in this record does not establish without dispute that Defendant is not liable to Plaintiff on either of the grounds of Plaintiff’s suit.
The summary judgment in favor of the Defendant is reverse d and vacated. Costs of this appeal are assessed aga inst the Defendant. The cause is remanded to the Tr ial Court for further procee dings.

REVERSED AND REMANDED

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCURS:

_____________________________________ SAMUEL L . LEWIS, JUDGE

CONCURS IN SEPARATE OPINI ON WILL IAM C. KOCH, JR., JUDGE