Mildred Manhart, et al v. Ellis County, Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-90-143-CV

MILDRED MANHART, ET AL,

Appellants

v.

ELLIS COUNTY, TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 39,937

CONCURRING AND DISSENTING OPINION

Although I concur in the reversal of the summary judgment on the cause of action under the Tort Claims Act and agree with the disposition of the miscellaneous grounds for the summary judgment, I would affirm the summary judgment that the plaintiffs take nothing on their 1983 claim. I briefly set forth my reasons.

After acknowledging that the county had an unwritten policy of providing prompt attention to inmates' serious medical problems, which included screening inmates for known medical conditions at the time of admission to jail, providing emergency and non-emergency medical care outside the jail, and administering prescribed medications, the majority states:

At the time of Manhart's death, the sheriff's department did not provide additional training to jail personnel in the diagnosis or treatment of inmates' medical problems. Along with the fact that the department had no written policy, the undisputed evidence is that it was the department's policy to rely on a medical questionnaire taken at the time of the inmate's admission to jail. In this case the inmate had a .42 blood-alcohol level which the jailer knew was an "unusually high" level of intoxication. If it was the county's policy to rely on the answers to a medical questionnaire given by an inmate who had a near-toxic level of intoxication, a fact issue is presented as to whether the department's policy amounted to deliberate indifference to the serious medical needs of jail inmates.

I interpret the majority's sequential reasoning as follows: evidence that the county (1) did not provide additional medical training to jail personnel, (2) had an unwritten policy which allowed an obviously intoxicated inmate to respond to a medical-screening questionnaire at the time of admission, and (3) allowed jail personnel to rely on the responses to the questionnaire in determining whether the inmate had a serious medical condition that needed attention or treatment (4) raised a fact issue whether the county had an official policy or custom of deliberate indifference to inmates' serious medical needs. This rationale is flawed because it mistakenly elevates fact questions about the county's negligence in failing to diagnose or treat Manhart's heart problem into a fact question of whether the county had an official policy or custom of deliberate indifference.

The county conclusively established that Manhart died of a heart attack caused by the narrowing of the arteries carrying blood to his heart. The autopsy report excluded all other contributing causes. Thus, to allege a violation of his constitutional rights, the plaintiffs had to assert that his death resulted from an official county policy or custom of deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251 (1976). To obtain a summary judgment on this cause of action, the county had to conclusively negate any policy or custom of deliberate indifference on its part.

Essentially, the majority's position is that a fact issue existed on whether the county had a policy of deliberate indifference because its official policy of promptly meeting the serious medical needs of its inmates did not contain adequate procedures to diagnose and treat undisclosed medical problems. Assume for purposes of analysis that, instead of responding to a medical questionnaire, upon being admitted to jail Manhart had received a complete medical examination by a competent physician but that the physician negligently failed to diagnose and treat his heart problem. A complaint based on the physician's negligence would not state a cognizable claim under 1983. See id. The reason is that medical malpractice or mere negligence does not equate to an official governmental policy of deliberate indifference. See id. Logically, if evidence of a physician's negligence would not amount to deliberate indifference, then surely evidence that the county's medical policy made it possible for jail personnel to negligently fail to diagnose or treat Manhart's heart condition will not support such a claim.

Thus, even if the record contained some evidence that jail personnel negligently failed to diagnose or treat Manhart's medical condition, that would not raise a fact issue of whether the county had an official policy or custom of deliberate indifference to inmates' serious medical needs. The county established as a matter of law that it had an affirmative policy to meet those needs and that Manhart's death did not result from an official policy or custom of deliberate indifference. Consequently, as a matter of law the county was entitled to a take-nothing judgment on the 1983 claim, and I believe that portion of the summary judgment should be affirmed.

BOB L. THOMAS

Chief Justice

Opinion delivered and filed November 6, 1991

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