Tuesday, March 4, 2014

Court of Appeals revives medical indifference claim under Iqbal

A few years ago, the Supreme Court issued a new standard governing when a lawsuit can proceed to discovery. We call it the Iqbal standard. It requires that the plaintiff show that she has a plausible case, not simply a possible case. We can always use more guidance from the Second Circuit on Iqbal plausibility. This case provides some, with an interesting dissent from Judge Jacobs that asks the question: at what point do we simply disbelieve the plaintiff's allegations on their face?

The case is Nielson v. Rabin, decided on February 13. Nielson claims the police kicked the hell out of him on the street. He ended up in the hospital, where hospital staff minimized the nature of his serious injuries and did not provide him proper treatment. He sues the doctor for deliberate indifference to serious medical needs, a claim that arises under the due process clause of the Fourteenth Amendment. In order to win a case like this, you have to show (1) you had a serious medical situation (2) to which government officials were deliberately different. Medical negligence is not enough to win. You have to show that the doctors (or prison guards whomever else is in a position to help someone in dire pain) basically said, "screw it."

Here is what the lawsuit alleges:

After the beating, Nielsen was taken to the emergency room in a wheelchair where he complained of severe pain in his shoulder and back and a broken nose. There, he was evaluated by Dr. Rabin and Dr. Sylvia Tschenyavsky. Even though Nielsen screamed when his shoulder was lightly touched, the doctors reported that his level of pain and discomfort was low: a two out of ten. The doctors diagnosed Nielsen as having “mild bruising” and suggested that he was “malingering” – fabricating or exaggerating his symptoms. No X‐rays, CT‐scans or MRIs were performed, and no significant treatment was provided.
 After the City filed a motion to dismiss, plaintiff (representing himself pro se) wrote in his brief that the doctor refused to treat him at the offending police officer's direction. The Second Circuit (Kearse and Straub) summarizes the new allegations: "the officers who brought him to the emergency room told Dr. Rabin that he had attacked a female police officer and that he should be ignored and left alone. According to Nielsen, no such attack actually occurred. Nielsen also alleged that Dr. Rabin allowed herself to be influenced by the officers."

The Court says that Nielson alleges a plausible claim that Dr. Rabin was deliberately indifferent to his serious medical needs. This holding is not remarkable, except that it raises an important question under Iqbal plausibility: at what point do we believe or disregard what the plaintiff says in the complaint simply on plausibility grounds? What triggers this debate on the Court is Neilson's claim that a medical doctor did not treat the plaintiff because a police officer told her to. Judge Straub writes:

We would love to live in a world where it is implausible for a doctor to disregard her oath and refuse to treat a patient she believed had attacked a female officer – just as we would love to live in a world where it is implausible for an employer to be so irrational as to refuse to hire a qualified applicant because of the applicant’s skin color. Unfortunately, we do not. Taking the allegations in Nielsen’s complaint and his opposition brief as true, Nielsen can plausibly allege that Dr. Rabin acted with a sufficiently culpable state of mind.
This language helps plaintiffs who bring routine discrimination and other claims alleging they were treated illegally. The world is not perfect, and people do bad things. It's often plausible to allege that something illegal happened to you, including employment discrimination.

In dissent, Judge Jacobs says this ruling ignores plaintiff's medical records and also disrespects the medical profession. Disagreeing with the majority's interpretation of the record, Judge Jacobs says plaintiff did not really suffer a serious physical injury. "The claim thus becomes that two doctors violated their oaths and that a nurse falsely reported that Nielsen was in a low level of pain at the time of discharge, all at the behest of police officers who told the doctors that their patient should be neglected. This claim, which is absurd, is easily classed as implausible." He adds, "the majority’s ruling on plausibility unintentionally implies a certain disrespect for the ethics of doctors and nurses. The majority deems it plausible that each of these medical professionals (and all of them together) would allow a patient’s suffering to go unabated at the say‐so of policemen expressing hostility to a person in custody."

Judge Jacobs then describes the ills of Section 1983 litigation, and the financial burden it can place on individual defendants, some of whom are not indemnified by their government employers. He has said this before in written dissents. "There is insufficient appreciation that this section 1983 action is a personal claim against the individual assets of Dr. Rabin, and that the defense costs of such a claim alone can wipe out a college fund or equity on a home." He adds, "The plausibility test in cases such as this is a safeguard against a financial injustice that can often outweigh the harm claimed by a plaintiff. True, some or many defendants are indemnified by employers or insurers (though insurance may not cover intentional acts); but such an arrangement would be dehors the record, and may not be considered by us in deciding whether a claim survives through the expense of discovery and extended motion practice."

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