United States District Court, W.D. Kentucky, Paducah
MARK PFIEFER, Administrator of the Estate of James Kenneth Embry, Deceased, PLAINTIFF
STEVE HILAND, M.D., DEFENDANTS
MEMORANDUM OPINION & ORDER
B. Russell, Senior Judge
matter comes before the Court upon Defendant Steve Hiland,
M.D.'s Motion for Summary Judgment. (R. 207). Fully
briefed, the matter is ripe for adjudication. For the reasons
that follow, Hiland's Motion is GRANTED IN PART, and
DENIED IN PART.
Inmate Embry's Death.
Embry was an inmate at Kentucky State Penitentiary (KSP). He
suffered from bipolar and other mood disorders for which he
received psychotropic medications while incarcerated. (R.
207-1, Ex. 12, Embry's Med. R., pp. 56-62). However, in
May and June of 2013, those medications were discontinued by
KSP mental health providers. (See Id.). In
November of 2013, Embry was transferred to the Segregated
Management Unit within KSP. While there, Embry made multiple
request to mental health providers to be put back on his
medications. (Id.). They refused. (Id.).
From December to January, Embry made numerous complaints to
mental health providers at KSP, telling them things such as,
“I have nothing left to live for, ” “I
don't feel good, I am up and down, ” and “I
still want to hurt myself.” (Id.). In fact,
Embry did hurt himself-twice. On December 10, 2013, Embry
struck his head on his cell door, and was seen by a nurse.
(Id.). The next day, Embry scratched his arm with a
plastic spork. (Id.). Also from December to January,
Embry started increasingly refusing meals. (Id.). By
January, Embry was missing meals regularly. (Id.).
Finally, on January 13, 2014, Embry was found dead in his
cell from dehydration with contributing starvation, duodenal
ulcer, and emphysema with right ventricle hypertrophy. (R.
207-1, Ex. 1, Med. Examiner's Rep., p.1).
KSP Nursing Staff.
December and January the KSP nursing staff, along with
various mental health professionals, came into contact with
Embry and made decisions affecting his care. Specifically,
KSP Nurse Jim Royster came into contact with Embry on January
4, 2014. On that occasion, Nurse Royster sent the following
medical note to KSP Physician Steve Hiland and Nurse
Practitioner Bob Wilkinson:
[Embry] states that he is weak and shaky. [Embry] appears
pale and extremities shake. Advised [Embry] that best plan of
action would be to resume eating. [Embry] states that he
thinks it has been too long to resume now. Weight is 138,
last recorded weight 9/26/13 of 170. This is a loss of 32
lbs. Will recheck weight and notify provider. [Embry] is also
tachycardic. Unable to check b/p d/t.
(R. 207, Ex. 14, Embry's Med. R., p. 22). Similarly, KSP
Nurse Bruce Bruaer was specifically involved, at least in
some manner, with a decision concerning Embry's transfer
from his cell to the infirmary the day he died. The extent of
Bauer's involvement is disputed. Embry was never
transferred from his cell. (R. 207, Ex. 12, External Movement
Report). He died there. (Id.).
is evidence suggesting the KSP Nursing staff followed rules
and policies created or promulgated by Dr. Hiland, the KSP
Physician. (R. 224, Ex. 6, Bauer Depo. p. 14; R 224, Ex. 7,
Secoy Depo. p. 120). There is also evidence that at least
some of the KSP nursing staff thought there would be
employment related consequences if they did not.
(Id.). However, Dr. Hiland never issued any specific
orders to any nurse at KSP regarding Embry's care.
Steve Hiland was a KSP Physician at the time of Embry's
death. In fact, he was the only KSP Physician at that time.
(R. 269, Hiland Depo., p. 134). Hiland claims he never
treated Embry, and there is no evidence to the contrary.
(Id. at p. 191). However, Hiland cosigned, with
Nurse Practitioner Wilkinson, the January 4, 2014 medical
note from Nurse Royster while on vacation.
started vacation on January 3, 2014. (R. 207., Ex. 22, Crall
Email; R. 207., Ex. 24, Hiland travel receipts). He did not
return from vacation until after Embry's death.
(Id.). There is no evidence Hiland knew Embry had
skipped meals prior to the January 4, 2014. There is no
evidence that Hiland was responsible for Embry's physical
care while on vacation. To the contrary, there is evidence
Hiland was not responsible for Embry's physical care on
vacation. (R. 207, Ex. 8, Crall Depo., pp. 249-250). Instead,
Nurse Practioner Bob Wilkinson was responsible for
Embry's care while Dr. Hiland was on vacation.
(Id.). There is nothing in the Record that suggest
Hiland had reason to question Wilkenson's professional
is no evidence Hiland was ever responsible for, or aware of,
Embry's mental health. Indeed, there is evidence that
Embry's mental health was outside Hiland's purview at
KSP. (Id.; R. 207, Ex. 16. Hinkebein Depo., p. 227).
is evidence that some of the KSP staff, including the KSP
medical staff, followed the “tea-rule.” (R. 224,
Ex. 6, Bauer Depo., pp. 24, 140; R. 224, Ex. 13, Wilkinson
Depo., pp. 82, 90-91). The tea-rule was an unwritten policy
dictating that if an inmate had any caloric intake, including
from juice, or even tea (hence the name), that inmate was no
longer classified as being on hunger-strike. There is
evidence the KSP nursing staff adhered to the unwritten rule,
that it was ...