In partially reversing a Nebraska federal district court's grant of summary judgment, the Eighth Circuit Court of Appeals has held the Nebraska State Tort Claims Act (NSTCA) does not apply to contracted medical service providers.

That ruling came in the appeal of Nebraska prisoner Otha Smith, who filed an action alleging violation of his constitutional rights and negligence. Smith named as defendants Harold Clarke, then-director of the Nebraska Department of Correctional Services, and Dr. Patrick Colerick. The district court granted the defendants' motion for summary judgment.

Smith's claims arose due to a tumor that was removed surgically from his left eye. While working in the prison kitchen in March 1999, Smith accidentally splashed clear fluid in his left eye. He requested to see a doctor but was not examined until November, despite an appointment being scheduled for June.

At the November examination, Dr. Colerick found Smith's pupil response was normal. Six months later Smith complained of redness in the eye. Dr. Colerick attributed it to Smith's age and sun exposure. In May 2001, Dr. Colerick observed Smith's pupils were not reacting normally. An ophthalmologist determined Smith had a tumor on his pituitary gland that was pinching an optical nerve. Removal of the tumor left Smith without the use of his left eye.

In relation to Smith's claims for "deliberate indifference to serious medical needs," the Eighth Circuit held the district court properly dismissed the claims. Clarke had no notice of Smith's condition. The appellate court said the evidence showed that Clarke was unaware of grievances Smith had filed, and that he did not regularly review such communications.

The appeals court further found that Dr. Colerick was unaware of the tumor's existence until May 2001. He did not delay treatment before or after its discovery; moreover, malpractice alone cannot support an Eighth Amendment claim. Further, testimony was presented that Smith received proper diagnostic care and treatment. As such the Eighth Circuit affirmed dismissal of the constitutional claims.

The appellate court then turned to Smith's negligence claims. The NSTCA, Neb. Rev. Stat. § 81-8,210(3), requires petitioners raising tort claims against state employees to file a claim with the State Tort Claims Board before filing an action in court. The district court dismissed on the basis that Smith had failed to comply with the NSTCA's claim requirement.

After judgment was entered, Smith moved to set aside the judgment. He presented, for the first time, proof that he did bring an administrative claim against Clarke before filing suit. The Eighth Circuit held the failure to produce evidence that was available at the time it was before the district court was not the kind of mistake or neglect that merited relief under Fed.R.Civ.P. 60(b). The district court did not abuse its discretion in denying Smith's motion.

Finally, the Eighth Circuit held that Dr. Colerick did not fit the definition of a state employee under the NSTCA. He was not a regular full-time employee, but was hired on a contract basis. He had a separate place of business and considerable freedom to schedule appointments, prescribe necessary medication, and diagnose and treat the prisoners he saw. The appeals court held that only state employees are entitled to the full scope of the NSTCA's claim requirements, and Smith need not have filed an administrative claim against Dr. Colerick.

The district court's order was affirmed in part and reversed to reinstate the negligence claim against Dr. Colerick under the NSTCA. On remand, the district court was instructed that it was free to review other grounds upon which Dr. Colerick had moved for judgment, and to reconsider its supplemental jurisdiction to decide the state law claims.
See: Smith v. Clarke, 458 F.3d 720 (8th Cir. 2006).

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