Opinion · Court of Appeals for the Ninth Circuit
Raymond D. Jackson v. Duncan A. McIntosh David Victorino
90 F.3d 330
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1996-07-18
- Topic
- litigation
holding that interfering with medical treatment “not because of an honest medical judgment, but on account of personal animosity” can constitute deliberate indifference | holding that deliberate 6 indifference can be shown where “the course of treatment the doctors chose was medically 7 unacceptable under the circumstances” | holding that deliberate indifference can be shown where 20 “the course of treatment the doctors chose was medically unacceptable under the 21 circumstances” | stating that prisoner may demonstrate deliberate indifference if prison officials relied on 1 the contrary opinion of a non-treating physician | holding a difference in opinion between the physician and the prisoner concerning the appropriate course of treatment does not amount to deliberate indifference to serious medical needs | holding a difference in opinion between the physician and the prisoner concerning the appropriate course of treatment does not amount to deliberate indifference to serious medical needs | explaining that a difference of opinion regarding medical treatment does not amount to deliberate indifference, and to prevail on such a claim the prisoner would have to show the course of treatment chosen was medically unacceptable | explaining that a difference of opinion regarding medical treatment does not amount to deliberate indifference, and to prevail on such a claim the prisoner would have to show the course of treatment chosen was medically unacceptable | finding the 13 plaintiffs’ argument that one medication was superior to another and therefore should not have been discontinued was a mere difference of medical opinion | a plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances” | difference in opinion between the physician and the prisoner regarding the appropriate course of treatment does not amount to deliberate indifference | plaintiff can show deliberate indifference if “the course of treatment the doctors chose was medically unacceptable under the circumstances” | Plaintiff must show that the course of treatment was medically 3 unacceptable under the circumstances | prisoner “must show that the course of treatment the doctors chose was medically 3 unacceptable under the circumstances.” | A mere “difference 16 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.” | Plaintiff must show that the course of treatment was medically unacceptable under the 15 circumstances | a prisoner can establish deliberate indifference by showing that a delay in treatment was “medically unacceptable” | A mere “difference 15 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.” | A mere “difference 24 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.” | A mere “difference 28 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.” | a plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances” | A mere “difference 21 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.” | A mere “difference 22 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.” | A mere “difference 20 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.” | A mere “difference 28 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.” | A mere “difference 27 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate 28 indifference.” | A mere “difference 26 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.” | A mere “difference 26 of medical opinion . . . [is] insufficient, as a matter of law,
Citator
- Cited by
- 642 opinions
Amitai Schwartz and Antonio Ponvert, III, San Francisco, California, for plaintiff-appellee.
[5] Certain principles follow necessarily from the deliberate indifference standard and facilitate its application to cases such as this one, which involves choices between alternative courses of treatment. We held inSanchez v. Vild,891 F.2d 240,242(9th Cir. 1989) (citingEstelle,429 U.S. at 107,97 S.Ct. at 292), for example, that a plaintiff's showing of nothing more than "a difference of medical opinion" as to the need to pursue one course of treatment over another was insufficient, as a matter of law, to establish deliberate indifference. In other words, where a defendant has based his actions on a medical judgment that either of two alternative courses of treatment would be medically acceptable under the circumstances, plaintiff has failed to show deliberate indifference, as a matter of law.See Estelle,429 U.S. at 107-08,97 S.Ct. at 292-93. To prevail under these principles, Jackson must show that the course of treatment the doctors chose was medically unacceptable under the circumstances,Williams v. Vincent,508 F.2d 541,543-44(2d Cir. 1974) (cited with approval inEstelle,429 U.S. at 104n. 10,97 S.Ct. at 291), and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health.Farmer v. Brennan,511 U.S. 825, ___-___,114 S.Ct. 1970,1978-79,128 L.Ed.2d 811(1994).
[6] The doctors may well find solace in these principles when they are applied by the trier of fact, or on appeal from a final judgment. They are of no avail to the doctors on this interlocutory appeal, however, as Jackson has alleged the doctors chose to deny him the opportunity for a kidney transplant, not because of an honest medical judgment, but on account of personal animosity. If Jackson proves that claim at trial, and he has shown that the delay in performing the kidney transplant was medically unacceptable, he will have shown that the doctors were deliberately indifferent to his serious medical needs.
[7] The doctors further argue that Jackson failed to show a genuine issue of material fact as to whether they were deliberately indifferent, in fact, to his medical needs. As to that question we lack jurisdiction. It is a question that cannot be separated from the merits of Jackson's case. It is a question reviewable after trial. We are instructed by the Supreme Court that for these reasons appellate jurisdiction is lacking.Johnsonv. Jones,___ U.S. ___, ___,115 S.Ct. 2151,2156,132 L.Ed.2d 238(1995).Johnsondictates that we must refrain from considering this question, a departure from our prior approach to qualified immunity appeals from a denial of summary judgment.See, e.g., Burgess v. Pierce,918 F.2d 104,106n. 3 (9th Cir. 1990). Given the district court's determination that there is a triable issue as to deliberate indifference, the doctors were not entitled to summary judgment on the ground that they could reasonably have believed their conduct did not violate clearly-established law.Hamilton v. Endell,981 F.2d 1062,1066(9th Cir. 1992).
[8] Accordingly, the appeal isDISMISSEDfor lack of jurisdiction.Page 333