Metropolitan News-Enterprise


Tuesday, April 30, 2013


Page 1


Court of Appeal Rules:

Standard of Medical Care No Different for State’s Prisoners




The standard of medical care for incarcerated persons is the same as it is for other patients, the Fourth District Court of Appeal ruled yesterday.

Div. One, addressing the substantive issues in Barry Jameson’s action against Dr. Tadesse Desta after reversing two prior defense judgments on procedural grounds, said cases cited by Desta do not “remotely support his argument that doctors who provide medical care in California’s prisons are held to a lower standard of care than those who provide medical treatment in the general medical community.”

The panel, in an opinion by Justice Cynthia Aaron, said there were triable issues of fact on Jameson’s claims for breach of fiduciary duty and professional negligence, so that San Diego Superior Court Judge Timothy B. Taylor should not have granted summary judgment.

Aaron also said the inmate’s procedural rights were violated when the judge failed to act on his timely request that he be allowed to participate by telephone when his medical expert was deposed.

 Jameson’s complaint asserted eight causes of action, including breach of fiduciary duty, professional negligence, general negligence, failure to train, battery, violation of civil rights, intentional infliction of emotional distress, and violation of due process against Desta and officials of the California Department of Corrections and Rehabilitation.

He alleged that Desta, working on behalf of the department, negligently prescribed the drug interferon to Jameson while he was incarcerated at the Richard J. Donovan Correctional Facility in San Diego and that the drug had caused him to suffer serious physical injuries, including irreversible damage to his eyesight.

Original Dismissal

Superior Court Judge William S. Cannon granted Desta’s motion to dismiss the case in 2005 for lack of prosecution, finding that Jameson had not diligently served the physician with a summons and complaint. However, Div. One reversed Cannon’s decision and remanded the matter for further proceedings.

On remand, Cannon issued an order authorizing Jameson to appear at court hearings by telephone but later dismissed the action without prejudice on the ground that Jameson failed to appear telephonically at a case management conference and at a subsequent hearing on an order to show cause.

That dismissal was reversed in 2009 when the Court of Appeal found that the court failed to ensure, despite repeated efforts by the plaintiff, to ensure that prison officials were providing the plaintiff with the ability to appear by telephone.

Aaron emphasized on that occasion that prisoners have a statutory right to initiate civil actions and to have meaningful access to the courts to prosecute a bona fide claim.

‘Cure’ Not the Issue

On remand from the second Court of Appeal ruling, with only the professional negligence and breach of fiduciary claims remaining, Taylor ruled that Jameson suffered no harm because Desta had “cured” him of hepatitis.

Aaron, however, said the opposition papers offered no response to the plaintiff’s prima facie showing that he received injections of interferon, a powerful drug with known and significant side effects, in violation of the doctor’s fiduciary duty not to subject him to medical risk without his informed consent.

As for the professional negligence claim, the justice wrote, the trial judge addressed the wrong issue. Citing medical records demonstrating that Jameson had no detectable viral count two months after beginning treatment with interferon, the justice wrote:

“Jameson’s professional negligence claim is not premised on a failure to cure Jameson,” Aaron explained, “but rather, on the allegation that Desta performed below the standard of care in unnecessarily prescribing a medication that had significant and damaging side effects at a time when Jameson was not suffering from hepatitis.”

Aaron cited the declaration of the plaintiff’s expert, Dr. Allen Cooper of Stanford University, who said that Desta provided Jameson with care that “was substandard and a direct cause of the suffering and injury to Jameson and contrary to the prevailing standard of care in the medical community in 2000-2001.” 

Rather than prescribing painful and dangerous injections of interferon three times a week for a year, Cooper opined, Desta should have prescribed six months of an alternative treatment combining interferon with ribavirin.

That opinion, Aaron wrote, was sufficient to raise a triable issue of fact as to whether Desta’s negligence was the cause of harm to the patient, in the form of “painful and unnecessary” treatment.

The justice went on to reject the argument that that a 1998 memorandum from prison officials, on how inmates with hepatitis should be medically treated, established a lower standard of care than that applicable to the general public.

Nothing in the memorandum, Aaron said, suggested that the protocol was anything other than an attempt at setting guidelines. And in any event, she said, there is no legal basis for applying a lower standard of care in prisoner cases.

The justice cited Nelson v. State of California (1982) 139 Cal.App.3d 72, distinguishing the tort of medical malpractice from the tort of failing to summon medical care under Government Code Sec. 845.6. The court there explained that:

“Once a practitioner has been summoned to examine and treat a prisoner, he or she is under a duty to exercise that degree of diligence, care, and skill such as is ordinarily possessed by other members of the profession.  Failure to do so is malpractice.” 

The case is Jameson v. Desta, 13 S.O.S. 2143.


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