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TORTS — Affidavits of Merit — Civil Rights — Medical Malpractice No. 01-3449; Third Circuit; opinion by Ambro, U.S.C.J.; filed February 7, 2003. Before Judges Ambro, Stapleton and O’Neill, District Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Pisano.] DDS No. 29-8-2812 I. On the evening of November 23, 1997, Gloucester Township police arrested Daniel Natale, an insulin-dependent diabetic. Before transporting him to the Camden County Correctional Facility, the police took him to a hospital for a medical clearance prior to incarceration. The physician treating Natale gave him a dose of insulin, and wrote a note stating that Natale “must have insulin” while incarcerated. The note did not, however, indicate how often the insulin should be administered. At 3:30 a.m. on November 24, 1997, Natale arrived at CCCF, where, as part of his initial processing, employees of defendant Prison Health Services, a private company that provides health services to CCCF inmates, performed a medical screening. Natale informed PHS employees that he was an insulin-dependent diabetic, and a PHS employee noted this fact on Natale’s chart. There is no indication in the record that the PHS employee screening Natale ever asked him how often he needed insulin. Natale was then admitted to the general prison population. At 12:30 a.m. on November 25, 1997, 21 hours after being admitted to CCCF, Natale received his first dose of insulin at that facility. He was released later the same day. Two days later, Natale suffered a stroke. Attributing this stroke to the failure of PHS to administer insulin during the first 21 hours of his incarceration, Natale and his wife filed suit, alleging medical malpractice and violations of 42 U.S.C. �� 1981 and 1983. The District Court dismissed the medical-malpractice claim, citing the Natales’ failure to comply with N.J.S.A. 2A:53A-27 (the “affidavit of merit statute”), which requires the plaintiff in a malpractice case to file an expert affidavit attesting to the merit of the plaintiff’s claim. The District Court also entered summary judgment in favor of CCCF, the County of Camden, and the Camden County Sheriff’s Department on the Natales’ � 1983 claim, and dismissed the Natales’ � 1981 claim as to all defendants. II. A. The Natales argue that because the issue of negligence in this case was one that could be resolved from the jury’s common knowledge without expert testimony, there was no need for an affidavit of merit, citing to the Supreme Court of New Jersey’s recent decision in Hubbard v. Reed, 774 A.2d 495, 499-500 (N.J. 2001). Held: A reasonable jury could conclude that PHS personnel were negligent absent expert testimony. PHS personnel failed to call Natale’s treating physician to determine how often he needed insulin to be administered. They didn’t even ask Natale. When defendant’s careless acts are quite obvious, no affidavit of merit is required. Although laypersons are unlikely to know how often insulin-dependent diabetics need insulin, common sense — the judgment imparted by human experience — would tell a layperson that medical personnel charged with caring for an insulin-dependent diabetic should determine how often the diabetic needs insulin. No special expertise or expert testimony is needed to show, at the outset of a case, that the claim is not frivolous. The New Jersey Supreme Court’s decision in Hubbard supports this view; thus no affidavit of merit need be filed. B. Because there is evidence from which a reasonable jury could conclude that PHS had a policy failing to address the immediate medication needs of CCCF inmates with serious medical conditions, the District Court erred in granting summary judgment in favor of PHS on the Natales’ � 1983 claim. To establish a claim under 42 U.S.C. � 1983, a plaintiff must demonstrate a violation of a right protected by the Constitution or the laws of the United States committed by a person acting under the color of state law. It is undisputed that PHS was acting under color of state law when it provided medical services to Daniel Natale, and no federal laws are implicated by the actions of PHS employees. 1. As a threshold matter, the District Court accepted the Natales’ � 1983 claim for inadequate medical care as one arising under the Eighth Amendment right of a convicted prisoner to receive adequate medical care, articulated by Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). Although Daniel Natale was not, at any time relevant here, a convicted prisoner but, rather, a pretrial detainee and, therefore, the Natales should have pleaded their � 1983 claim as one based on the due process clause of the Fourteenth Amendment, the Fourteenth Amendment affords pretrial detainees protections “at least as great as the Eighth Amendment protections available to a convicted prisoner.” Id. To establish a violation of Daniel Natale’s constitutional right to adequate medical care, evidence must show (i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need. Natale has established that he is an insulin-dependent diabetic. The question, therefore, is whether PHS employees were deliberately indifferent to Natale’s serious medical needs. To survive a summary judgment motion on this issue, the Natales must point to some evidence beyond their raw claim that PHS employees were deliberately indifferent or, put another way, some evidence that PHS employees knew or were aware of the risk to Natale. Sufficient evidence exists in the record that PHS employees were deliberately indifferent to Natale’s serious medical needs to survive a summary judgment motion. First, prison officials ignored the evidence of his need for insulin. Natale testified that he informed a PHS employee that he was an insulin-dependent diabetic, a PHS employee noted this fact on his chart, and he had a note from a physician indicating that he “must have insulin.” A reasonable jury could conclude that PHS employees knew that Natale was an insulin-dependent diabetic and that if insulin was not administered as required, he would suffer adverse health consequences. In addition, there is evidence that, as in Monmouth County, PHS employees delayed medical treatment for nonmedical reasons — the PHS policy that failed to address the immediate medication needs of inmates with serious medical conditions. Nurse Lynda Sanferraro, a PHS employee, testified that PHS’s “policy” was that a doctor would see inmates within 72 hours, but that there was no practice in place to accommodate inmates with more immediate medication needs. A reasonable jury could find that such a practice constituted the delay of medical treatment for nonmedical reasons. The Natales have, therefore, provided sufficient evidence to survive a motion for summary judgment on the question of whether PHS employees violated Daniel Natale’s Fourteenth Amendment right to adequate health care while detained. 2. What remains to be determined is whether, for � 1983 purposes, the actions of PHS employees can be attributed to PHS itself. PHS cannot be held responsible for the acts of its employees under a theory of respondeat superior or vicarious liability. See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691 (1978). In order for PHS to be liable, the Natales must provide evidence that there was a relevant PHS policy or custom, and that the policy caused the constitutional violation they allege. A policy is made “when a decision-maker possessing final authority to establish municipal policy with respect to the action issues a final proclamation, policy or edict. A custom is an act that has not been formally approved by an appropriate decision-maker, but that is so widespread as to have the force of law.” There are three situations where acts of a government employee may be deemed to be the result of a policy or custom of the governmental entity for whom the employee works, thereby rendering the entity liable under � 1983. See Bd. of the County Comm’rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997). The first is where the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy. The second occurs where no rule has been announced as policy but federal law has been violated by an act of the policy-maker itself. Finally, a policy or custom may also exist where the policy-maker has failed to act affirmatively at all, though the need to take some action to control the agents of the government is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policy-maker can reasonably be said to have been deliberately indifferent to the need. Here, there is no evidence that PHS had an affirmative policy or custom that prevented its employees from inquiring into the frequency with which Natale required insulin. There is, however, evidence that PHS turned a blind eye to an obviously inadequate practice that was likely to result in the violation of constitutional rights. According to PHS employee Sanferraro, the policy at PHS for screening inmates was as follows: a medical assistant would inquire about an incoming inmate’s medication needs, and write those needs in the inmate’s medical records, but was not otherwise required to pass on that information. No one could provide an inmate with medication without having first obtained an order from a doctor. There was no requirement that a doctor see an inmate during the first 72 hours of incarceration and no one was charged with determining whether an inmate should be seen by a doctor earlier in the 72-hour period. As a result, there was no policy ensuring that an inmate having need of medication for a serious medical condition would be given that medication during the first 72 hours of his incarceration. A reasonable jury could conclude that the failure to establish a policy to address the immediate medication needs of inmates with serious medical conditions creates a risk that is sufficiently obvious as to constitute deliberate indifference to those inmates’ medical needs. Reversed and remanded. — Digested by Steven P. Bann [The slip opinion is 15 pages long.] For appellant — Saul J. Steinberg (Sufrin, Zucker, Steinberg, Waller & Wixted). For appellee — Kevin W. Lynch (White & Williams).

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