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Detainee alleges widespread issues about medical care

Where a detainee alleged that he was denied medical care despite several communications with jail officials, and discovery could reveal evidence of widespread issues concerning medical care at the Chesapeake Correctional Center, a municipal liability claim survived the motion to dismiss.

Background

William Whittaker sues various individuals and Correct Care Solutions LLC for events related to Whittaker’s medical care while he was incarcerated at the Chesapeake Correctional Center. Each of the defendants has filed a motion to dismiss.

Negligence

Sovereign immunity bars the negligence claim against the jail defendants. With respect to the negligence claim against the medical professionals, the Virginia Medical Malpractice Act, or VMMA, applies, and Whittaker thus had to certify that he had an expert medical witness opinion at the time of service of process unless he fell within the narrow exception.

Whittaker did not certify that he had a witness, and the facts as alleged do not indicate that his claim falls within a “jury’s common knowledge and experience.” Thus, the court will dismiss Count One against the medical defendants. Finally, Whittaker’s failure to state a claim for negligence against the medical defendants is fatal to his negligence claim against CCS under a respondeat superior theory.

Gross negligence

A claim of gross negligence “must fail as a matter of law when the evidence shows that [a] defendant[] exercised some degree of care.” Here, Duane Gill, Timothy Morgan and Christopher Earles each exercised care in their response to Whittaker’s medical needs. Though Jamie Fanelli did not exercise a degree of care like the other jail defendants, the alleged facts do not indicate that Fanelli breached any potential duty of care or even knew of Whittaker’s concerns related to medical care.

Because Whittaker factually supports every element of his gross negligence claim against Levi Golt, however, the court will deny Golt’s motion to dismiss Count Two. Although Golt works for Jim O’Sullivan, O’Sullivan is not liable for the conduct of his deputy. Finally, because Whittaker has no expert witness opinion, the gross negligence claim against the medical professionals and the accompanying respondeat superior claim against CCS are dismissed.

Willful and wanton negligence

Because willful and wanton negligence imposes a higher standard than gross negligence Whittaker fails to state a claim of willful and wanton negligence against Earles, Gill, Morgan and Fanelli. However, Golt’s alleged comment to Whittaker – “[E]veryone should know about you” – suggests that he knew the sort of treatment Whittaker would endure upon disclosure of his medical condition. The willful and wanton negligence claims against O’Sullivan, the medical defendants and CCS are dismissed for the same reasons as above.

Medical care

Although Whittaker’s medical condition presents a sufficiently serious risk of harm, Whittaker fails to allege that Golt, Fanelli, Morgan or Earles knew of the risk to his health through mere requests for medication or even knowledge of his medical condition.

Unlike for the other jail defendants, Whittaker clearly communicated the severity of his condition to Gill. Gill, however, responded reasonably by speaking to medical personnel about the delays. Thus, Whittaker fails to state a claim for deliberate indifference against Gill.

Turning to the medical professionals, Whittaker’s allegations concerning Dr. Alex Taylor and Pam Smith do not indicate a state of mind beyond mere negligence. However the court needs more information before it can assess the claim against nurse Jaqueline Winstead and director of nursing Brittany Jones.

Right to privacy

Whittaker alleges Golt and Winstead disclosed private medical information in violation of his Fourteenth Amendment rights. Because Whittaker lacks any constitutional privacy rights concerning his medical condition, the court will dismiss Count Five.

Unauthorized disclosure

Whittaker raises an unauthorized disclosure claim against Golt, Winstead, O’Sullivan and CCS under state law because Winstead and Golt improperly disclosed his medical information. Whittaker sues Golt and O’Sullivan for unauthorized disclosure under Virginia Code § 53.1-133.03. The statute does not, however, create a private cause of action.

Virginia courts permit a right of action against medical professionals for unauthorized disclosure of medical information. Whittaker does not, however, allege any facts to support his allegation that Winstead “communicated [Whittaker’s medical condition to] . . . non-medical staff.” And because Whittaker fails to state an unauthorized disclosure claim against Winstead, Whittaker also fails to state an unauthorized disclosure claim against CCS through respondeat superior.

Failure to supervise

Whittaker alleges that O’Sullivan, Smith, Jones and Taylor failed to supervise the individuals responsible for providing him with medical care. Because Whittaker lacks a constitutional right to privacy, his claim against O’Sullivan fails. And because Whittaker never alleges that Smith supervised anyone, a claim of supervisory liability against Smith cannot stand.

While Whittaker does allege facts that suggest Jones ignored his medical needs, he does not allege facts that suggest a constitutional injury arose from the supervisory relationship between Jones and Winstead. Finally, the complaint contains almost no factual allegations concerning Taylor.

Whittaker also alleges O’Sullivan, Earles, Gill, Morgan and Fanelli failed to supervise the individuals responsible for maintaining the confidentiality of his health information in violation of his constitutional rights. Because Whittaker lacks a constitutional right to privacy with respect to his health condition, Whittaker fails to state a claim for supervisory liability against these defendants.

Official custom

Given the persistence of the actions underlying Whittaker’s grievances despite several communications with jail officials, the problems that he alleges may run much deeper than his particular harm. Discovery could very well reveal evidence of widespread issues concerning medical care at the Chesapeake Correctional Center. The court will deny the motions to dismiss Count Nine.

Defendants’ motions to dismiss granted in part, denied in part.

Whittaker v. O’Sullivan, Case No. 3:21-cv-474, Aug. 9, 2022. EDVA at Richmond (Gibney). VLW 022-3-347. 32 pp.

VLW 022-3-347

Virginia Lawyers Weekly