of care in 1989 for asthma patients would "indisputably" include the administering of a "peak flow test" and a theophyline blood level test from which a doctor could determine the severity of a patient's condition. It is the plaintiff's conclusion that the defendants' failure to perform such tests rises to a level sufficient to state a claim under § 1983.
Prior to addressing the merits of the plaintiff's claim, it is important to note that the decedent in this case was a pretrial detainee and not an inmate of the Albany County Jail. Since the Eighth Amendment does not apply prior to conviction and sentence, see Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973) (Eighth Amendment not applicable to pretrial detainees), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324, (1973), the proper analysis of plaintiff's claims in this case is under the due process clause of the Fourteenth Amendment. See Lareau v. Manson, 651 F.2d 96, 102 (2d Cir. 1981) (noting that constitutional standard for substantive rights of pretrial detainees in prison is Fourteenth Amendment due process). Nonetheless, it appears that, in this Circuit, the same standards apply under due process protections as under the Eighth Amendment protection from cruel and unusual punishment. See Johnson v. Glick, supra, at 1032 ("It would be absurd to hold that a pre-trial detainee has less constitutional protection . . . than one who has been convicted"). Accordingly, the Eighth Amendment standard is applicable in this case.
a. Nurse Weisheit:
To establish an unconstitutional deprivation of medical care, a prisoner must demonstrate acts or omissions sufficiently harmful to amount to "deliberate indifference" to "serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251, (1976); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988). A plaintiff may demonstrate the deliberate indifference of a prison official by showing that he or she intentionally interfered with prescribed treatment or intentionally denied access to medical care. Estelle v. Gamble, 429 U.S. at 104-05; Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977). Plaintiff has presented no evidence that Nurse Weisheit interfered with or intentionally delayed the treatment prescribed by doctors Cuttita and Terraciano. In fact, the record establishes that the nursing staff saw the decedent and administered medications no less than 18 times over the period of his incarceration. Accordingly, because the plaintiff has failed to allege facts sufficient to infer nurse Weisheit was deliberately indifferent to the medical needs of the decedent, her motion for summary judgment will be granted.
b. Doctors Cuttita and Terraciano:
To find a physician liable under 42 U.S.C. § 1983 for deliberate indifference to an inmate's serious medical needs, the conduct alleged must demonstrate an "unnecessary and wanton infliction of pain" or conduct which would be "repugnant to the conscience of mankind." Estelle v. Gamble, 429 U.S. at 106. Errors in professional judgment do not rise to a level of deliberate indifference necessary to recovery under a § 1983 action. See Gill v. Mooney, 824 F.2d 192 (2d Cir. 1987). Case law is clear that medical malpractice of does not become a constitutional violation merely because the victim is a prisoner. Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir. 1991), cert. denied, 116 L. Ed. 2d 117, 1991 U.S. LEXIS 4445, 112 S. Ct. 152, 60 U.S.L.W. 3261 (1991).
The testimony of the plaintiff's expert, Dr. Alleyne, that defendants Cuttita and Terraciano deviated significantly from the appropriate standard of care for serious asthma patients constitutes, at most, a medical malpractice claim which may be cognizable in a state court but not in a federal § 1983 action. Even construed in the light most favorable to the plaintiff, the record does not present facts sufficient for an inference of deliberate indifference. The evidence in this case establishes that Dr. Cuttita and Dr. Terraciano attended to the decedent promptly after he complained of medical problems. During the course of their examinations, the defendants exercised their medical judgment and proscribed the treatment they deemed necessary. As stated previously, allegations of negligence in diagnosis or treatment alone, without facts supporting a charge of deliberate indifference, cannot support a claim under § 1983. Cf. Hathaway v. Coughlin, 841 F.2d 48 (2d Cir. 1988) (delay of over two years in arranging surgery to correct broken pins in hip could amount to deliberate indifference to serious medical needs); Gill v. Mooney, 824 F.2d 192, (2d Cir. 1987) (plaintiff may have valid claim for relief where medical treatment refused for misconduct unrelated to medical condition or treatment); Archer v. Dutcher, 733 F.2d 14 (2d Cir. 1984) (summary judgment inappropriate where plaintiff raises issue of material fact regarding possibility that defendants delayed emergency medical aid to cause suffering for obstreperous inmate); Williams v. Vincent, 508 F.2d 541, (2d Cir. 1974) (colorable claim of deliberate indifference presented where doctors chose treatment of discarding prisoner's ear and stitching stump rather than attempting to save the severed portion).
Accordingly, because the plaintiff has failed to establish facts from which a reasonable jury could infer Dr. Cuttita or Dr. Terraciano acted with deliberate indifference to the decedent's serious medical needs, summary judgment is also appropriate for these defendants.
In sum, the plaintiff has failed to establish facts sufficient to support an inference that defendant Cuttita, Weisheit, or Terraciano acted with deliberate indifference towards the decedent's serious medical concerns. Accordingly, this court is mandated to grant summary judgment as to these defendants.
IT IS SO ORDERED.
Dated at Binghamton, New York
April 26, 1994
Thomas J. McAvoy
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