Ninth Circuit Denies Qualified Immunity to Doctor and Nurses at California Jail Who Treated Detainee’s Ruptured Aorta With Pepto Bismol
by David M. Reutter
On May 24, 2022, the U.S. Court of Appeals for the Ninth Circuit denied a request for rehearing en banc of a case brought on behalf of a detainee at California’s Orange County Jail (OCJ) who died of an undiagnosed rupture in his aorta. See: Russell v. Lumitap, 2022 U.S. App. LEXIS 14016 (9th Cir.).
That left to stand an earlier ruling by a three-judge panel of the Court, affirming denial of qualified immunity (QI) to a doctor and two nurses at the jail who treated Patrick John Russell’s fatal heart condition with over-the-counter remedies, including Pepto Bismol.
Russell was held at OCJ for a probation violation on January 23, 2016, when he began hyperventilating, vomiting, and dry-heaving. He saw nurse Maria Teofilo — twice — receiving Pepto Bismol and stretching suggestions. She also referred him for a mental health screening at OCJ’s Intake Release Center.
Arriving there early the next morning, he saw nurse Patti Trout. Now complaining of chest pain radiating to his arm and jaw, he was short of breath. His hands and feet were numb. Trout gave him a dose of nitroglycerin. When that didn’t help, she should have called paramedics, according to jail policy. But she phoned Dr. Thomas Le, who ordered Motrin for Russell while they awaited his mental health evaluation.
After that was over, Russell returned to OCJ and Teofilo, complaining of worsening symptoms. She offered more Motrin and some relaxation tips. So did nurse Jocelyn Lumitap when she saw Russell next. He returned to her at 11:08 that morning, bent over and hyperventilating, and she noted his “flu-like” symptoms. By 11:40 a.m., he lay on the floor and vomited, unable to get up.
Finally, around 12:20 p.m., Lumitap realized Russell was unresponsive and called paramedics. He died at a hospital from what was later determined a ruptured aorta that flooded the membrane surrounding his heart.
On behalf of his estate, Russell’s parents filed suit under 42 U.S.C. § 1983 in federal court for the Central District of California. They accused Le, Teofilo, Trout, and Lumitap of deliberate indifference to Russell’s serious medical needs, in violation of his Fourteenth Amendment rights. Defendants moved for summary judgment, claiming QI. But the district court denied that motion. Defendants appealed.
The Ninth Circuit panel began with the jail policy that was ignored: failing to call paramedics after Russell’s first dose of nitroglycerin did not relieve his chest pain. After that, “each medical professional who knew that Russell had been administered an ineffective dose of nitroglycerin had facts available from which a reasonable person would infer that he was at substantial risk of harm if not hospitalized,” the Court said.
Dr. Le was one who “disregarded a clear signal — the ineffectiveness of the dose of nitroglycerin — that Russell’s condition was potentially fatal,” the Court continued. Without explanation or examination, he also failed to instruct Teofilo to follow jail policy. She watched Russell’s condition worsen but offered no more than Motrin. Likewise, Lumitap did not call paramedics despite Russell’s deteriorating condition. Thus, denial of QI to all three defendants was proper.
But the Court found error in denying QI to Trout. After nitroglycerin failed, she called Le, and she was entitled to rely on his evaluation and recommendation. Thus that part of the district court’s order was reversed, while the rest was affirmed on April 13, 2022. See: Russell v. Lumitap, 31 F.4th 729 (9th Cir. 2022).
The case has now returned to the district court, and PLN will report developments as they are available. Plaintiffs are represented by attorneys Cameron Sehat of Newport Beach, as well as Dale K. Galipo and Marcel F. Sincich of the Law Offices of Dale Galipo in Woodland Hills. See: Russell v. Cty. of Orange, USDC (C.D. Cal.), Case No. 8:17-cv-00125.
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