Stock photo: Ewa Urban, Pixabay
Medical study aside, wasn’t ‘objectively unreasonable’ for EMTs to administer sedative
Being given the potent sedative ketamine while semiconscious, as part of an “ill-advised” Hennepin County medical study, does not shock the contemporary conscience, the U.S. 8th Circuit Court of Appeals ruled Monday.
The case involves a young Minneapolis woman, Brittany J. Buckley. On Dec. 16, 2017, a friend summoned police to Buckley’s residence for a welfare check, fearing she was acting suicidal following the death of her father. Police arrived, found Buckley heavily intoxicated and called for an ambulance.
What Buckley claims happened next differs from what the ambulance crew reported in its logs. Buckley’s attorney, Zorislav R. Leyderman, said Tuesday that his client verbally protested but never physically resisted paramedics when they told her she would be moved to a hospital on a medical hold. She was handcuffed, carried to an ambulance and strapped to a gurney, Leyderman said.
In the ambulance, he said, his client registered a minus 2 on the clinical Altered Mental Status Scale—an indication that she had drifted into near-unconsciousness before she was injected. Yet she still expressed that she did not want the injection she saw EMTs preparing for her, Leyderman said.
The emergency crew told a different story, saying in its ambulance run report that Buckley had kicked and bit at them and needed to be brought under control for her safety and theirs.
“Patient continued to fight the restraints,” their report says, a claim Leyderman calls false. It adds that paramedics “elect[ed to] enroll her into the ketamine trials.”
After she was injected with the drug, Buckley immediately went into respiratory arrest. Life-saving measures had to be taken and she was intubated overnight. In an interview, Leyderman said his client was not permanently injured by that experience, but she has lasting emotional scars.
“Just the idea that she was in a crisis and then she somehow ended up in some kind of a research study—like a lab rat, even though she never consented to it,” he said, “she will carry that around forever.”
That Hennepin County “ketamine trial” to which she was subjected was later discontinued after the press caught wind of people being enrolled without their consent, causing a public outcry.
Civil rights claims
Buckley’s U.S. District Court complaint, filed on Nov. 7, 2018, alleged civil rights violations under 42 U.S.C. § 1983. It also alleged violations, including medical malpractice and battery, under the Minnesota common law.
She sued Hennepin County Healthcare System, Inc., the county’s Research Institute and the county itself. She also sued the three paramedics who responded, along with six physicians and 10 unidentified researchers who took part in the ketamine study.
Buckley claimed, in part, that the individual defendants violated her Fourth and Fourteenth Amendment rights by using excessive force to administer the sedative. Those same constitutional rights were violated, she claimed, because the individual defendants, through deliberate indifference, violated her “bodily integrity.”
She also alleged so-called “Monell violations” against all defendants, claiming that the county’s policies exhibited deliberate indifference toward her constitutional protections.
In their defense, respondents countered that the paramedics and doctors were protected by qualified, official and statutory immunity, and that any injury suffered by Buckley resulted from her own conduct. They also said she had alleged claims for which relief can’t be granted, the county asserted.
In a reply brief, Buckley claimed the county’s defense essentially ignored her allegations, instead fabricating the story of her violent physical resistance to justify administering a sedative that she didn’t want or need.
It did that, she claimed, simply to make her the unwilling participant in what amounted to a medical experiment.
During oral arguments Oct. 22, 2020, attorney Matthew S. Frantzen argued for the county. He said the first responders that night did what they had to do to render necessary aid.
“Under these circumstances, I don’t believe the Minneapolis Police Department or Hennepin EMS had any alternative but to place her under a 253B hold for her safety and take her to the hospital for medical care,” he told the court. “And that’s what they did.”
Frantzen argued that, even accepting as true Buckley’s claim that she never physically resisted, her verbal “outbursts” were justification enough to administer ketamine. He acknowledged Buckley was in a semi-conscious state at the time of the injection, but said there was no guarantee that she would remain that way.
“The decision was made to give her the sedation so they could keep her calm and under control until she got to the hospital,” he said.
Circuit Judge Raymond Gruender challenged Frantzen’s claim that paramedics exercised medical discretion when they administered ketamine rather than some less risky alternative. Because of the then ongoing medical study, Gruender said, the paramedics really had all medical discretion stripped away from them.
“Well, they had the judgment about whether or not it was appropriate to use it,” the county’s lawyer replied. “And I think that is important.”
Arguing for his client, Leyderman suggested that whether a better drug was available is beside the point. To Leyderman, the case hinged on whether there was a need to sedate Buckley at all.
“She was never in a state of extreme agitation,” he said. “She was verbally resisting. She didn’t want to leave her house, but never physically resisted by kicking or punching anyone. When she was grabbed she was physically compliant and never engaged in any abuse, aggression or resistance.”
“Isn’t that your better argument,” Gruender said, “that rather than whether there was a medical emergency, that there was simply no need for sedation in this situation, given what is pled? And that the District Court erroneously relied on the ambulance report to find that she was physically resistant?”
“Absolutely,” Leyderman replied. “The whole case hinges on the point that your honor pointed out—that there was no need to sedate her in the first place.”
During arguments, Leyderman came under intense scrutiny from Circuit Judge James B. Loken, who demanded to know why police body-cam video of the incident hadn’t been submitted into evidence. Leyderman says the video exists, but does nothing to undercut his case. It cuts off as soon as his client is placed in the ambulance, he said, limiting its value.
Loken also expressed skepticism that Buckley, who was found to have a blood alcohol content over .30 at the time, could be relied upon to remember whether she struggled with paramedics.
‘Not objectively unreasonable’
The 8th Circuit’s opinion disagreed that medical necessity was lacking in the paramedics’ decision to inject Buckley with the “commonly used sedative.”
Penned by Loken, the opinion says:
“It was not objectively unreasonable for paramedics to administer medical aid to an intoxicated, suicidal, semi-conscious woman who needed medical intervention.”
Nor did majority find that the facts of the case shock the contemporary conscience. The ruling says:
“Even if the semi-conscious Buckley was competent to refuse this treatment, the paramedics did not engage in conscience-shocking conduct in electing to sedate a suicidal, intoxicated woman to protect both the patient and themselves.”
In the court’s view, the case is not properly a civil rights matter. It’s a simple medical malpractice claim to be worked out in state court.
Buckley struck out with the court on all of her claims, including her qualified immunity claims and her Monell claim that the county was liable for a civil rights violation because its medical policy caused a constitutional tort.
We agree with the district court that these claims must be dismissed because Buckley failed to establish that the paramedics violated her Fourth Amendment or substantive due process rights.
Though ultimately signing onto the ruling because he found caselaw offered no other alternative, Gruender disagreed with his colleagues on some fundamental points in a concurrence that reads like a dissent.
Crediting her version of the story, Gruender said it was objectively unreasonable to sedate Buckley with ketamine.
“She was about as restrained as a person can be, strapped down on a gurney. She was not and had not been resisting. She was not suspected of a crime. And, by the paramedics’ own observations, she was already almost unconscious,” he writes. “In these circumstances, the decision to sedate her with a potent and dangerous drug was ‘gratuitous and completely unnecessary’ and thus objectively unreasonable.”
The court’s reliance on Buckley’s seizure not by police but by paramedics was not persuasive to Gruender. Fourth Amendment protections are not limited to law-enforcement actions, he writes.
“Neither the paramedics’ status nor their purpose immunizes them from constitutional scrutiny. … And this makes sense. The Fourth Amendment’s text is facially agnostic as to the who or the why of a government intrusion.”
As to the opinion’s observation that there is “no constitutional right to be sedated with a particular medication,” the judge writes pointedly:
“Maybe not. But Buckley did not bring a § 1983 suit because she favors a different brand of sedative. Rather, she claims that, under the circumstances here, she had the right to not be forcibly sedated at all.”
Nonetheless, Gruender in the end concurred with the ruling, including with the excessive-force portion, because Buckley failed to demonstrate that a clearly established right had been violated. Excessive force, he writes, is a fact-intensive area of law where precedent must squarely govern. And in this area, case law is lacking.
He concludes: “Here, Buckley has not pointed to any decision that resembles this one. Accordingly, I concur in the court’s judgment granting the paramedics qualified immunity concerning Buckley’s excessive-force claim.”
Officials from the Hennepin County Attorney’s Office declined to comment on the case.
Not done yet
Leyderman said Tuesday that he isn’t sure yet whether his client will continue pursuing her federal case by seeking a petition for reconsideration or en banc review. But the matter doesn’t end with the Loken opinion, he said.
Buckley will now turn her attention to a state-law claim already filed in Hennepin County District Court, the lawyer said. It eliminates the federal claims, he said.
“At this point,” Leyderman said, “what is left of the case is a medical malpractice claim with regard to whether or not the paramedics and doctors responsible for these studies followed proper medical standards in treating people with similar levels of agitation rate.”