Johnson v. Lewis

83 F.4th 1319

Ricky J. JOHNSON, Plaintiff-Appellant, v. Dr. Sharon LEWIS, Statewide Medical Director of Georgia Department ofCorrections, Dr. Thomas Ferrell, Medical Director of Ware State Prison,Dr. Kevin Marler, Medical Director ofJenkins Correctional Facility, Defendants-Appellees.

No. 20-10150

United States Court of Appeals, Eleventh Circuit

Filed: October 11, 2023

Appeal from the United States District Court for the Middle District of Georgia, D.C. Docket No. 5:16-cv-00453-TES-MSH

Jordan Lee Greene, Kasdin Miller Mitchell, Kirkland & Ellis, LLP, Washington, DC, Ricky J. Johnson, Riverbend CF - Inmate Legal Mail, Milledgeville, GA, for Plaintiff-Appellant.

Angela Ellen Cusimano, Ronald Joseph Stay, Christopher Michael Carr, Georgia Department of Law, Attorney General's Office, Atlanta, GA, Stephen E. Curry, The Hawk Firm, Augusta, GA, for Defendants-Appellees Sharon Lewis, Ferrell.

Angela Ellen Cusimano, Ronald Joseph Stay, Christopher Michael Carr, Georgia Department of Law, Attorney General's Office, Atlanta, GA, for Defendants-Appellees Commissioner, Georgia Department of Corrections, Chaudray, GDOC.

Angela Ellen Cusimano, Georgia Department of Law, Attorney General's Office, Atlanta, GA, for Defendant-Appellee Mohammad, Medical Director Jenkins Correctional Facility.

Righton Johnson Lewis, Butler Snow, Atlanta, GA, for Defendants-Appellees Turner, Kevin Marler.

Before Jordan, Newsom, Circuit Judges, and Grimberg,^* District Judge.

Grimberg, District Judge:

Ricky Johnson is an inmate in the custody and care of the Georgia Department of Corrections (GDC). Johnson was diagnosed with Hepatitis C (HCV) in 2009, but did not receive medication for it until nine years later. By then, Johnson's HCV had progressed to stage F4 cirrhosis with indications of severe liver inflammation. Johnson sued numerous prison doctors, three of whom are the subject of this appeal, alleging that they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The district court granted summary judgment in favor of the doctors and dismissed all claims against them. Johnson appealed both the district court's grant of summary judgment and its denial of his motion to amend the complaint. Because we find that material disputes of fact remain as to the doctors' actions and inactions in treating Johnson, we reverse the district court's grant of summary judgment but affirm its denial of the motion to amend.

I

The factual disputes in this case are manifold, and we construe the disputed matters in favor of Johnson, the nonmoving party. But before delving into the facts, some background on both HCV and the GDC's policy for treating it are in order.

HCV is a bloodborne virus that attacks a person's liver. In particular, it can cause liver scarring, or "fibrosis". Liver fibrosis is measured on a five-step scale, in ascending order of severity: F0 (no fibrosis); F1 (mild fibrosis); F2 (moderate fibrosis); F3 (severe fibrosis); F4 (cirrhosis). Cirrhosis is the most extreme form of liver damage, and can potentially result in liver cancer or liver failure. There are also grades of liver inflammation that can (but need not) correlate with the severity of the fibrosis. To monitor the progression of HCV infections, the standard of care is for doctors to use bloodwork to measure two enzymes, ALT and AST, that are released when the liver is damaged. While progression of the disease is often slow, it can also be unpredictable. It can take anywhere from months to decades to progress from one stage to the next. Irrespective of the progression rate, chronic HCV can be cured only with medication. It will not clear on its own.

The GDC has a policy for treating patients with HCV, which has and continues to evolve as new treatments and medicines become available. Because the relevant time period in this case spans from 2012-2018, two GDC policies are at issue: the 2012 policy and the 2016 policy. The 2012 policy provided for the administration of a triple-drug treatment when patients met certain criteria, including a liver biopsy showing stage 2 fibrosis and grade 2 inflammation. The policy also provided for exceptions, stating that it was

not intended to be a substitute for professional judgment by the managing physician, [gastrointestinal], or [infectious disease] consultant. Treatment is always to be individualized base[d] on any unique patient factors.

In other words, patients who did not meet the testing criteria could still qualify for treatment if approved by the managing physician or other professionals overseeing the patient's care.

In August 2016, the GDC updated its policy to account for the availability of newer, more effective treatments than the triple-drug regimen. The 2016 policy differed from the 2012 policy in a few relevant ways. First, it recognized a new class of HCV antiviral drugs. Second, it required the administration of a FibroSure test instead of a liver biopsy as part of a patient's treatment eligibility determination. Finally, it created three priority levels for treatment, with medication generally reserved for Priority 1 patients as determined by their FibroSure results.

With that background in mind, we turn now to Johnson's medical treatment or lack thereof. When Johnson was diagnosed with HCV in 2009, he was serving his sentence at Wilcox State Prison and under the medical care of Dr. Charles Ruis, who is not a party to this appeal. At that time, the progression of Johnson's disease was mild and did not qualify him for treatment under either the GDC policy or the independent judgment of Dr. Ruis. Over the course of the next two years, Dr. Ruis continued to monitor Johnson's condition. In January 2012, Dr. Ruis referred Johnson to a gastroenterologist and HCV specialist, Dr. Ayaz Chaudhary, who is also not a party to this appeal. While it is unclear what exactly triggered Dr. Ruis's referral, he noted on the consultation request form that "[JOHNSON] HAS HCV AND WANTS TREATMENT" and "PLEASE CONSIDER FOR HCV TREATMENT."

On November 1, 2012, Dr. Chaudhary prescribed Johnson the triple-drug treatment and enrolled him in the prison's clinic for treatment of chronic diseases.¹ Dr. Chaudhary's decision to prescribe the triple-drug treatment is critical to the parties' dispute on summary judgment. They agree that, at the time Dr. Chaudhary wrote the prescription, Johnson's lab results did not qualify him for treatment under the 2012 policy. The parties do, however, dispute why Dr. Chaudhary issued the prescription anyway. Defendants cite Dr. Chaudhary's affidavit, which states that he prescribed the medication based on Johnson's perceived litigiousness, his advocacy for treatment, and out of an abundance of caution. Johnson rightly points out that none of these reasons is noted in the contemporaneous documentation of Dr. Chaudhary's prescription. Johnson counters that the prescription was medically warranted and based on Dr. Chaudhary's professional judgment at the time, which is consistent with the 2012 policy. Regardless of the reason, Johnson did not receive his first dose until over five years later.

Johnson was transferred to Hays State Prison in December 2012, and in March 2013, to Ware State Prison and into the primary care of Defendant-Appellee Dr. Thomas Ferrell, the Medical Director at Ware. Dr. Ferrell is an internal medicine physician; while he is generally familiar with HCV, by his own admission he does not have the expertise to determine whether a particular patient should receive treatment for HCV.

Dr. Ferrell first saw Johnson on April 1, 2013. During that visit, Dr. Ferrell continued filling out Johnson's pre-therapy checklist, which Dr. Ruis started in 2009 and was required by the 2012 policy to be completed before a patient could begin receiving treatment. The checklist in turn required that a patient have current blood lab results before starting HCV treatment. Dr. Ferrell concluded that Johnson's blood labs from 2009 were aged and needed to be updated before Johnson could receive HCV treatment. So, Dr. Ferrell scheduled a follow-up appointment for Johnson with Dr. Chaudhary and ordered updated lab work.

According to Dr. Chaudhary, this follow-up occurred on April 25, 2013. During that appointment, Dr. Chaudhary again recommended that Johnson begin the triple-drug treatment for his HCV. At that time Dr. Chaudhary discussed with Johnson that missing even a few doses of the medications could cause the treatment to fail. This was particularly relevant because Johnson was scheduled to temporarily relocate to a different prison within a few days of the April 25 appointment. According to Dr. Chaudhary, due to this impending relocation he and Johnson agreed to wait to begin the treatment until Johnson returned to Ware State Prison.

Johnson returned to Ware in August 2013. No treatment followed. This time, Dr. Ferrell attributed the delay to Johnson's upcoming hernia surgery, scheduled for October 2013. Dr. Ferrell's notes from September 16, 2013, state that "after surgery [HCV treatment] will be pursued." Johnson underwent hernia surgery on October 1, 2013, and returned from the hospital to Ware on October 8, 2013. He spent no time in the recovery unit and took no pain medication other than Tylenol. Nonetheless, Dr. Ferrell attributes Johnson's hernia surgery as the reason he did not begin receiving any HCV treatment for at least eight months.

Frustrated by the delay, Johnson filed a grievance complaint on May 9, 2014. According to the Ware Grievance Coordinator, Johnson's grievance complaint was denied because he "never discussed or inquired about treatment for Hepatitis." Johnson appealed, detailing the history of his HCV care. Defendant-Appellee Dr. Sharon Lewis, the GDC's Statewide Medical Director, denied Johnson's appeal on the ground that "medical personnel handled this case appropriately."

Even while his grievance complaint was pending, Johnson continued to seek medical care for his...