(CN) — A woman whose child died during childbirth in a New Mexico prison asked the 10th Circuit on Monday to revive her lawsuit, which a lower court tossed after finding the doctor and two nurses who failed to send her to a hospital were entitled to qualified immunity.
Jay would have been Shawna Tanner’s second child. She was eight months pregnant when she tested positive for methamphetamine and was detained on a parole violation at the Metropolitan Detention Center in Bernalillo County, New Mexico, a state prison health care facility managed by private corporation Correct Care Solutions.
When Tanner went into labor, the nurse on duty gave her Tylenol and sanitary pads, but did not call an ambulance until 30 hours later. By that time, Jay’s heartbeat could no longer be detected.
“The facts are gross,” said U.S. Circuit Judge Carlos Lucero, a Bill Clinton appointee. “Quite evidently I am not an ob-gyn physician, and I don’t know much about childbirth from an applied standpoint obviously, but this sounds pretty gross to me.”
He continued: “This is a custodial pregnancy, this is a custodial birth. She couldn’t disregard the advice of the prison attendants and run off to a doctor of her own choice, or run off to a hospital of her choice, or provide the kinds of rational self-relief that would normally be attendant in this kind of case.”
Tanner sued Correct Care Solutions, medical director Dr. Timothy McMurray, and four registered nurses and jail staff members in 2017. In a 290-page opinion, U.S. District Judge James Browning, a George W. Bush appointee, granted qualified immunity to McMurray and dismissed the case in September 2019.
Asked whether Tanner received the proper standard of medical care, Correct Care Solutions attorney Jacob Goldstein of Chicago firm Hall Prangle & Schoonveld, said that was beside the point.
“Respectfully, the question isn’t whether this amounted to medical malpractice,” Goldstein said. “The question is whether plaintiff has presented evidence of the subjective component which requires a showing that will not be met absent an extraordinary degree of neglect, and that can’t be said of any of these defendants, especially Nurse Luna who saw her four times over the course of her shift.”
Goldstein insisted that what Tanner’s attorney called heavy vaginal bleeding was only spotting.
While Tanner didn’t receive a cervical exam to determine the progression of labor, Goldstein said, “The decision of whether or not to go forward with another type of diagnostic test may amount to medical negligence, but that doesn’t necessarily establish deliberate indifference.”
Senior U.S. Circuit Judge David Ebel said that was Goldstein’s version of the facts.
“One of the problems I have with the district court opinion is that he did not give all reasonable inferences to the plaintiff. There are a number of times he declined to do so, and I believe had he given all reasonable inferences to the plaintiff, it’s likely the opposite result would have occurred,” said the Ronald Regan appointee.
Tanner’s attorney also picked up on this point on rebuttal.
“That is the defendants’ version of events, that is not the plaintiff’s version of events. Her version of events is that while she was repeatedly begging for help over 30 hours, that they ignored her, belittled her, called her a liar and left her alone without the treatment that she was asking for,” said Tanner’s attorney Jessica Hernandez, of the Albuquerque firm Kennedy Hernandez & Associates.
“The question of whether you give a woman water, more pads and Tylenol when she is standing in front of you soaking wet with amniotic fluid and blood and contractions, that’s a jury question of whether that’s patently unreasonable,” Hernandez said.
Given the continued spread of Covid-19, the court held the hearing remotely and broadcast it on YouTube.
U.S. Circuit Judge Nancy Mortiz, a Barack Obama appointee, rounded out the panel. The judges did not indicate when or how they will decide the case.