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Delayed Diagnosis Supports ‘Deliberate Indifference’

A Norfolk U.S. District Court says an inmate who alleges defendant prison medical providers violated his Eighth Amendment rights when they delayed care that would have timely diagnosed his lymphoma may amend his claim to add two more defendants: a medical re­cords supervisor and an administrator of the prison sick call process; his suit is not time-barred, as it was filed with­in two years of either his initial diag­nosis of lymphoma or his later diagno­sis of nerve damage.

Timely filing

Defendants assert that plaintiff’s proposed second amended complaint (SAC) is futile because plaintiff’s entire action is time-barred. Plaintiff needed to file the instant complaint within two years from the time his claim accrued.

The court finds the 7th Circuit deci­sion in Devbrow v. Kalu, 705 F.3d 765 (7th Cir. 2013), is instructive in deter­mining the accrual date for plaintiff’s claim. The 7th Circuit said the plaintiff in Debrov learned of his injury and its cause when his prostate cancer was di­agnosed.

Here, while plaintiff was aware of the large growth, which he refers to as a “tumor,” on his neck, plaintiff did not know whether the growth was malig­nant until June 18, 2013. Plaintiff was not officially diagnosed with lymphoma until July 18, 2013. On April 17, 2015, plaintiff learned that the nerve damage he now suffers is likely a result of the aggressive chemotherapy that he has undergone, and that he will likely suf­fer from this pain for the rest of his life. Plaintiff’s two-year limitations period started no earlier than July 18, 2013, when he was diagnosed with lympho­ma, and perhaps, as late as April 17, 2015, when plaintiff learned he would suffer from pain and nerve damage for the rest of his life. Either way, plain­tiff’s original complaint was timely filed, as he mailed it to this court on June 16, 2015.

Relation back

It is clear that plaintiff’s proposed claims against the two new defendants arise out of the same conduct, transac­tion or occurrence set forth in his origi­nal complaint. Plaintiff seeks to assert, as part of his existing deliberate indif­ference claim, that the sick call admin­istrator failed to promptly secure refer­ral appointments and that the medical records supervisor repeatedly delayed or incorrectly scheduled those appoint­ments.

The court concludes that construc­tive notice can be imputed to the two new defendants under the “shared at­torney” theory, and declines to consider whether notice can be imputed through the “identity of interest” theory. Adding the two new defendants at this stage in the litigation would not prejudice their defense on the merits in any way. Nothing in the record suggests that plaintiff’s failure to name these two defendants in the original complaint, or during the time period provided for by Rule 4(m), was the result of a fully informed decision as opposed to a mis­take.

The relation back doctrine permits the addition of the two defendants in this matter, as well as additional alle­gations regarding supervisory liabili­ty. Plaintiff’s proposed SAC is replete with allegations that identified pris­on medical personnel delayed plain­tiff’s medical treatment on several occasions by ignoring the VDOC pol­icy that a prisoner by seen by a phy­sician within two weeks of evaluation. Plaintiff has alleged that supervisory defendants gained knowledge through his grievances and treatment requests. The court finds the proposed SAC suf­ficiently alleges that defendants knew of a constitutional deprivation and approved it, turned a blind eye to it, failed to remedy it or in some way per­sonally participated

Motion to amend is granted.

Waters v. The Geo Group Inc. (Davis) No. 2:15cv282, Aug. 10, 2016; USDC at Norfolk, Va.; Lauren T. Rogers for plaintiff; Michael G. Matheson for de­fendant. VLW 016-3-383, 24 pp.

VLW 016-3-383

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