ORIGINAL PROCEEDINGS; Petition for writ of mandate. Helios (Joe) Hernandez, Judge. Petition granted. (Super.Ct.No. RIF127749)
The opinion of the court was delivered by: McKINSTER Acting P. J.
County of Riverside v. Super.Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this matter we have reviewed the petition and the opposition thereto, which we conclude adequately address the issues raised by the petition. We have concluded that an alternative writ would add nothing to the presentation already made and would cause undue delay in resolving this matter. We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)
The trial court erred in requiring the County of Riverside to pay for the costs of a root canal to be performed on real party in interest, an inmate in the county jail. While we recognize that the trial court wished to avoid any potential claim of error in this death penalty case, we conclude that the order was not justified by either the Eighth Amendment of the United States Constitution or this state's regulations regarding the provision of medical care for prisoners.
Deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment. (See Estelle v. Gamble (1976) 429 U.S. 97, 104.) Deliberate indifference to serious medical needs of prisoners entails unnecessary and wanton infliction of pain. Mere negligence is insufficient to meet this standard, which describes a state of mind more blameworthy. "It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk." (Farmer v. Brennan (1994) 511 U.S. 825, 836.) Finally, recklessness under this standard is subjective, requiring actual knowledge of a substantial risk of serious harm and disregard of that risk by failing to take reasonable measures to abate it. (Id. at p. 842.)
The record does not support a finding that petitioner was deliberately indifferent to real party in interest's dental condition. To the contrary, he has received extensive medical attention and treatment for a variety of dental problems since his incarceration, including a full set of X-rays and a treatment plan. The present controversy centers on the course of treatment for upper right tooth No. 4, which has a large cavity and decay infecting the nerve. Because of the extent of the decay, filling of the cavity is not an option. Dr. Loh, who is employed by the Riverside County Sheriff's Department as the Chief of Dentistry, has testified that the only viable options are extraction of the tooth or a root canal; petitioner considers the latter to be an elective procedure. Petitioner will provide dental treatment to extract the tooth and has offered real party in interest the opportunity to retain and pay for a private dentist to perform a root canal. Real party in interest will not authorize the extraction, states that he cannot afford to pay a private dentist, and insists that petitioner pay for a root canal procedure.
Dr. Loh has testified that extraction is not a less efficacious treatment than a root canal. Indeed, he has also indicated that because of the multiple empty spaces in the area, the long term treatment for real party in interest will be a plate. Real party in interest asserts that extraction is a less efficacious treatment for this tooth, but has provided no evidence to support this claim. Because Dr. Loh believes that extraction is an equally efficacious treatment, the refusal to provide a root canal does not constitute deliberate indifference. (Toguchi v. Chung (9th Cir. 2004) 391 F.3d 1051, 1058.) Real party in interest's preference for a root canal and petitioner's refusal to pay for the root canal does not constitute deliberate indifference. Mere difference of opinion on reasonable course of treatment is insufficient to constitute deliberate indifference. (Ibid.; Sanchez v. Vild (9th Cir. 1989) 891 F.2d 240, 242.)
Similarly, we find that petitioner has complied with the requirements of California Code of Regulations, title 15, section 1215, which merely provides that "policies and procedures to ensure emergency and medically required dental care [be] provided to each inmate." (Italics added.)
Although real party in interest is in pain, petitioner has prescribed antibiotics and pain medication for him. If real party in interest is in pain, it is because he rejected a viable and reasonable treatment plan to alleviate his symptoms. Thus, we reject his suggestion that his rights to a fair trial under the Sixth or Fourteenth Amendment are or will be impaired by the pain he continues to experience.
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order of October 14, 2010, directing the County of Riverside to pay ...