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WILLIAM FARADAY v. COMMISSIONER OF CORRECTION (SC 17694)
Borden, Katz, Palmer, Vertefeuille and Zarella, Js.* Argued February 13, 2007--officially released August 12, 2008

Neil Parille, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Henri Alexandre, assistant attorney general,

for the appellant (respondent). Kim Coleman, with whom, on the brief, was Erin M. Kallaugher, for the appellee (petitioner).

Opinion

PALMER, J. Under Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), prison officials will be found to have violated the eighth amendment to the United States constitution1 if, by virtue of their deliberate indifference to an inmate's serious medical needs, they refuse to provide care or treatment to that inmate. The petitioner, William Faraday, filed a petition for a writ of habeas corpus, claiming that the respondent, the commissioner of correction, had violated his eighth amendment rights by refusing to provide him with certain medical care for a chronic back condition. The habeas court rendered judgment granting the petition, and the Appellate Court, with one judge dissenting, affirmed the judgment of the habeas court. Faraday v. Commissioner of Correction, 95 Conn. App. 1, 19, 894 A.2d 1048 (2006). On appeal following our grant of certification,2 the respondent claims that the Appellate Court improperly affirmed the judgment of the habeas court because the evidence was insufficient to support that court's finding that the respondent had been deliberately indifferent to the petitioner's medical needs. We agree with the respondent and, accordingly, reverse the judgment of the Appellate Court. The following relevant facts and procedural history are set forth in the opinion of the Appellate Court. ``The petitioner pleaded guilty . . . to sexual assault in the third degree and risk of injury to a child. Following the trial court's imposition of a sentence in accordance with the plea,3 the petitioner was charged with violating two conditions of his probation. The [trial] court concluded that the petitioner had violated both conditions, revoked the petitioner's probation and ordered the petitioner to serve the twelve year sentence originally imposed. [See footnote 3 of this opinion. This court] upheld the [trial] court's judgment. State v. Faraday, 268 Conn. 174, [207] 842 A.2d 567 (2004). ``In December, 2002, the petitioner filed a petition for a writ of habeas corpus.4 The petitioner alleged that the conditions of his confinement were inhumane or dangerous to him because the respondent denied him necessary medical care for a back condition. The petitioner alleged, inter alia, that a magnetic resonance [image] (MRI) . . . of his back and an operation to repair herniated discs in his back were medically necessary, and that the respondent had denied his requests for the same.'' Faraday v. Commissioner of Correction, supra, 95 Conn. App. 3. In April, 2003, the habeas court conducted an evidentiary hearing on the petition. At the hearing, the petitioner testified that, approximately ten years earlier, he had undergone an MRI of his lower back, which indicated that he suffered from a herniated disc. The petitioner further testified that, although he had been un-

successful in obtaining a copy of the results of the MRI, he did recall that the MRI had been ordered by a physician by the name of Geiter, who had done so as a favor to another physician who had been treating the petitioner for an unrelated medical condition. The petitioner did not present any other witnesses or medical evidence. The respondent presented the testimony of Edward Blanchette, the clinical director of medicine of the department of correction. Blanchette, a physician with approximately thirty years experience and who is board certified in internal medicine and infectious disease, testified that an MRI of the lower back is medically required only when neurological findings indicate that the patient is a candidate for surgery. Blanchette further testified that, on the basis of his evaluation of the petitioner's medical records, the petitioner met none of the criteria for back surgery, and, therefore, he was not a candidate for an MRI. Blanchette also testified that the petitioner had been evaluated by a number of physicians, including several with expertise in orthopedics, and all of them agreed that the petitioner ``is not someone [who] requires an MRI of his back or surgery . . . .'' Blanchette explained that, by the petitioner's own admission, his back pain ``comes and goes,'' that the petitioner would be suffering from persistent pain and discomfort if he had a herniated disc requiring surgery, and that the medically appropriate treatment for the petitioner's intermittent discomfort is muscle relaxants, pain medication and bed rest to alleviate the symptoms.5 Blanchette further stated that the petitioner suffered from no muscle atrophy or reflex asymmetry, that there was nothing to indicate that the petitioner required surgical intervention, and that the petitioner had responded favorably to conservative treatment. Finally, Blanchette testified that he would authorize an MRI or a neurological consultation if such action became medically necessary due to a change in the petitioner's condition.6 Following up on the petitioner's testimony that he had been unable to obtain a copy of the results of the MRI that had been performed on him approximately ten years earlier, the habeas court asked Blanchette whether he had consulted with the physician who purportedly had ordered the MRI. Blanchette testified that he personally had contacted the physician whom the petitioner originally identified as having ordered the MRI, but that physician had no record of treating the petitioner. Blanchette further testified that he also had requested the petitioner's medical records from the two hospitals at which the petitioner had claimed to have received treatment for his back, namely, Manchester Memorial Hospital and Saint Francis Hospital and Medical Center. Neither hospital, however, had any record of an MRI having been performed on the petitioner. Blanchette also stated that, prior to the hearing on the

habeas petition, the petitioner never had mentioned a physician named Geiter. When the habeas court asked Blanchette whether it would be worthwhile to attempt to locate Geiter, Blanchette responded that, although it might be interesting to know the results of the MRI that purportedly had been performed on the petitioner ten years earlier, those results would have no bearing on Blanchette's opinion with respect to the petitioner's care and treatment. Blanchette explained that, even if the MRI indicated that the petitioner had a herniated disc, in light of his present symptoms, the petitioner still would not be a candidate for another MRI or for surgery, and, consequently, there would be no reason to order a neurosurgical consultation. Finally, Blanchette testified that the treatment that the petitioner was receiving for his back pain comported fully with accepted medical standards. At the conclusion of the hearing, the habeas court issued an oral decision rejecting the petitioner's claim that the respondent had been deliberately indifferent to the petitioner's medical needs. Expressly crediting Blanchette's expert testimony, the court concluded that neither an MRI nor disc surgery was necessary. Accordingly, the court dismissed the petition. Thereafter, the petitioner filed a motion for reconsideration. In support of his motion, the petitioner alleged that, subsequent to the dismissal of his habeas petition, he had obtained a report detailing the results of a 1992 computed tomographic (CT) scan which, according to the petitioner, substantiated his claim that he suffered from a herniated disc. In May, 2003, the habeas court granted the petitioner's motion, and, in February, 2005, the court conducted a second evidentiary hearing on the petition.7 The petitioner did not testify at the hearing but introduced into evidence a transcript of his testimony at the earlier proceeding. The petitioner also introduced into evidence the results of the 1992 CT scan and, in addition, the results of an MRI that had been performed on October 15, 2003, following the first hearing.8 The 1992 report detailing the results of the CT scan indicated that the petitioner suffered from ``a central and right sided herniated migrated disc'' at the L5-S1 (fifth lumbar and first sacral) vertebrae, which are located in the lower back. The diagnostic report detailing the findings of the 2003 MRI indicated that the petitioner suffered from ``[d]egenerative disc disease with mild diffuse disc bulge at L4-5 [fourth and fifth lumbar vertebrae]'' and ``[s]mall central disc protrusion with degenerative disc disease at L5-S1,'' and that there was ``[n]o evidence of any disc extrusion . . . .''9 Blanchette did not testify at the second hearing, but the respondent introduced Blanchette's affidavit into evidence. In the affidavit, Blanchette stated that the 2003 MRI confirmed his original determination that the

petitioner was not a candidate for surgery. Blanchette specifically stated in the affidavit: ``With respect to an MRI, it was my opinion [at the April, 2003 hearing] that this was unnecessary for pre-surgical evaluation given that [the petitioner] was not a surgical candidate in view of [the] clinical findings. Since multiple past Xrays had documented only mild to moderate degenerative joint disease with no clinically significant disc herniation, an MRI was not needed for diagnostic considerations. A subsequent MRI that was done on October 15, 2003, confirmed my clinical impression.'' Following the close of evidence, the respondent asserted that the evidence supported only one conclusion, that is, that the respondent had been treating the petitioner's back condition in a medically appropriate manner. The respondent further noted that, several months earlier, the petitioner had been provided with a copy of the 2003 MRI for the purpose of having it evaluated by a medical expert, but the petitioner had failed to obtain such an evaluation. According to the respondent, the record was devoid of evidence that the care and treatment that the petitioner received was inadequate or inappropriate, let alone that the respondent had demonstrated deliberate indifference to the petitioner's medical needs. In an oral decision following the parties' arguments, the habeas court granted the petition. The habeas court expressed ``great respect'' for Blanchette, but noted that Blanchette was not an expert in neurology or neurosurgery and that he never had performed a ``hands-on physical examination of the petitioner.'' The habeas court also observed that, although the petitioner had failed to adduce the testimony or affidavit of a medical expert, ``common sense'' led the court to conclude that the petitioner needed a further evaluation of his back. Specifically, the habeas court stated: ``I have the [1992 CT scan results] which [talk] about a disc herniation at the [fifth lumbar and first sacral vertebrae], and the 2003 [MRI] report talks about the disc protrusion with degenerative disc disease at [that same location]. So the two track each other. . . . And based [on] that, there is sufficient evidence, in [the] court's view, to have a neurological evaluation by a neurologist or a neurosurgeon . . . of the petitioner.'' In reaching its conclusion, the habeas court also observed that ``it is not a major thing to have [the petitioner] examined and evaluated by a neurologist or a neurosurgeon, who, in addition to reviewing [the relevant] documents, will be able to conduct a . . . physical examination [of the petitioner].'' The habeas court further noted that the respondent's ``failure to do so or the refusal to do so seems to [represent] rigidity by the [respondent] that is unnecessary,'' a rigidity that, according to the court, the respondent had demonstrated in another, unrelated habeas case.10 Finally, the court concluded that, because of the ``substantial probability that the petitioner has a herniated

disc,'' the respondent's refusal to grant the petitioner's request for an examination by a specialist reflected her ``deliberate indifference to the [petitioner's] medical needs . . . .'' The court thereupon directed the respondent ``to have the petitioner evaluated for his disc or back problem by a neurosurgeon or a neurologist to determine what course of action should be taken, if any.'' The court subsequently granted the respondent's petition for certification to appeal. On appeal to the Appellate Court, the respondent claimed that the habeas court improperly had ordered her to provide the petitioner with an evaluation by a neurologist or a neurosurgeon because (1) the habeas court did not make a finding that the petitioner suffered from a serious medical condition, (2) even if the habeas court had made such a finding, it was not supported by the evidence, and (3) the evidence was inadequate to establish that the respondent had demonstrated deliberate indifference to the medical needs of the petitioner. Faraday v. Commissioner of Correction, supra, 95 Conn. App. 8, 13. The Appellate Court, with one judge dissenting, rejected the respondent's claims and affirmed the judgment of the habeas court. Id., 19. With respect to the respondent's contention that the evidence was inadequate to support the habeas court's finding of deliberate indifference, the Appellate Court majority determined that the evidence of the petitioner's condition, coupled with the respondent's refusal to provide him with an evaluation by a neurologist or a neurosurgeon, was sufficient to warrant the habeas court's conclusion.11 In reaching its determination, the Appellate Court majority stated that the habeas court had acted within its discretion in ``look[ing] unfavorably'' on Blanchette's evaluation of the petitioner's condition because Blanchette was not an expert in neurology or neurosurgery. Id., 15. The Appellate Court majority further explained that the issues presented by the petitioner's claim were not so complex as to require expert testimony concerning the nature of the care and treatment that the petitioner needed, and, therefore, the habeas court reasonably had relied on its ``commonsense view of the evidence'' in concluding that the respondent's handling of the petitioner's back condition satisfied the deliberate indifference standard. (Internal quotation marks omitted.) Id., 16. Specifically, the Appellate Court majority stated: ``The [habeas] court made ample findings concerning (1) the fact that the treatment afforded to the petitioner had not alleviated his physical condition or the pain occasioned by it, (2) the extent and nature of the petitioner's disc condition and (3) the respondent's repeated refusal to provide the petitioner with the evaluative services of a neurologist or a neurosurgeon. On the basis of these findings, we conclude that the petitioner demonstrated that the respondent possessed a culpable state of mind. The [habeas] court reasonably could have concluded that

prison officials were aware of the pain being experienced by the petitioner and disregarded a substantial risk that the petitioner's painful condition would either continue or worsen under the admittedly `conservative' course of treatment being provided to him. The [habeas] court reasonably could have inferred that the respondent's denials of the petitioner's repeated request for further medical evaluation or treatment reflected a reckless disregard for the petitioner's suffering and not, as the respondent asserts, merely the respondent's `good faith' medical decisions.'' Id., 18

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