Federal Appellate Court Allows Lawsuit for Unilateral DNR

The U.S. Court of Appeals for the 11th Circuit has affirmed the partial denial of a prison warden's motion to dismiss a lawsuit brought by an inmate's family after the warden unilaterally entered a do not resuscitate order and directed removal from artificial life support.

Marquette F. Cummings, Jr. was an inmate at St. Clair Correctional Facility in Springville, Alabama. He was seriously stabbed in the eye and was airlifted  to University of Alabama at Birmingham Hospital.

His family filed a federal lawsuit based on the following conduct at the hospital. Dr. Sherry Melton, a medical supervisor at UAB Hospital, changed Cummings's code status to Do Not Resuscitate without authorization from Gaines or any other family member and without notifying Gaines and Cummings's family of the decision.

Plaintiffs allege that Dr. Melton relied upon statements from the St. Clair warden to change Cummings's code status to DNR even though Gaines and several other family members were at the hospital. Plaintiffs further allege that “Warden Davenport authorized UAB medical personnel to stop giving Cummings medication and to disconnect the life support machine.” Plaintiffs allege that contrary to Gaines's wishes, and “[b]ased on [the] directive from Warden Davenport, Cummings was taken off of life support....” Cummings passed away just hours after UAB medical personnel removed his life support.

Finding that the warden lacked any authority under Alabama law to make those treatment decisions, the court found the warden was not entitled to qualified immunity, and denied the warden's motion to dismiss the Estate's § 1983 claim based on Warden Davenport's alleged deliberate indifference to Cummings's serious medical need in violation of the Eighth Amendment.