Opinion
2:17-CV-050-JTM
01-31-2022
DONALD LEE ARMOUR, Plaintiff, v. ERIC TCHAPTCHET, Defendant.
REPORT AND RECOMMENDATION
ANDREW P. RODOVICH, JUDGE
Donald Lee Armour, a prisoner without a lawyer, filed a second motion for default judgment against Dr. Eric Tchaptchet. ECF 37. The Honorable James T. Moody reviewed the evidence submitted by Armour and found that, “[w]hile it is clear Armour has a variety of long-term medical ailments, he has not sufficiently proven that the actions of Dr. Tchaptchet caused any of those symptoms or issues.” ECF 40 at 8. He denied Armour's request for compensatory damages on that basis. See id. at 5-8. However, he acknowledged Armour's complaints of “pain and suffering related to his undiagnosed neuropathy from July 18, 2016, to September 22, 2016, and the pain he experienced as a result of the two TIAs on August 18-19, 2016, up until the time of his transfer on October 4, 2016, ” could provide the basis for an award of damages because pain and suffering alone caused by a delay in providing treatment can be actionable. Id. at 8-9. Accordingly, Judge Moody referred the matter to the undersigned for a hearing and report and recommendation on those specific potential damages. Id. at 12.
I. Background Information from the Amended Complaint
With regard to his neuropathy, Armour's amended complaint alleges that he arrived at the Porter County Jail on July 8, 2016, with preexisting issues from a neck fracture/cervical fusion in 1994. He began complaining to Dr. Tchaptchet on July 18, 2016, about “numbness, tingling, pins and needles, and aching pain” from his right shoulder to his right leg. ECF 16 at 3. He was given an x-ray, which according to the documents attached to the complaint, was “within normal limits cervical fusion remains stable.” Id. at 14. Dr. Tchaptchet also prescribed Flexeril, a muscle relaxer, but Armour alleges that he remained in pain and continued to complain to the medical staff.
Armour states that he was “finally approved for an MRI” on September 22, 2016. Id. at 7. However, documents attached to the complaint show that the MRI was performed on September 8, 2016, and that he was seen by an outside physician, Dr. Anton A.
Thompkins, on September 22, 2016, to discuss the results of the MRI which indicate:
[N]o evidence of any significant neural compromise as per my reading in the cervical region. There is some mild foraminal narrowing, but I do not think that is the cause of symptoms today. Standing AP and lateral cervical xrays show no evidence of any dislocations....I have told him I think the best mode of treatment would be, at this point, treat him from a medical standpoint. I would try him on some Neurontin 300 mg 3 times a day to see if that helps him, but I am comfortable in saying that surgery is not indicated at this stage.Id. at 24. Armour was prescribed the Neurontin, which he indicates provided “some relief.” Id. at 7. He was transferred out of the Porter County Jail to the Kankakee County Jail on October 4, 2016, which ended his interactions with Dr. Tchaptchet.
As to Armour's transient ischemic attacks (TIA), he alleges that on August 18, 2016, his “blood pressure spiked to dangerous levels” due to pain from his previously untreated condition. ECF 16 at 4. The nurse wanted to transport him to the emergency room, but Dr. Tchaptchet did not approve the transport. Instead, Armour was given Clonidine, a medication to lower his blood pressure, and he was placed in the medial isolation unit. The next day, he suffered another TIA. Again, although the medial staff wanted to transport him to another facility, Dr. Tchaptchet declined the transfer, prescribed more Clonidine, and told him to “try and get some rest.” Id. at 6. Armour remained in medical isolation for a week, and he requested but did not receive CT scans and MRIs “to determine his condition as far as strokes or heart attacks.” Id. Other than Clonidine, Armour did not receive treatment for the TIAs prior to his departure from the Porter County Jail on October 4, 2016. Armour does not allege that he suffered any additional TIAs after his transfer, nor does he allege that he suffered a full, post-TIA stroke at any time.
“A transient ischemic attack (TIA) is like a stroke, producing similar symptoms, but usually lasting only a few minutes and causing no permanent damage. Often called a ministroke, a transient ischemic attack may be a warning. About 1 in 3 people who have a transient ischemic attack will eventually have a stroke, with about half occurring within a year after the transient ischemic attack.” https://www.mayodinic.org/diseases-conditions/transient-ischemic-attack/symptoms-causes/syc-20355679 (last visited March 26, 2021).
In February of 2017, Armour received approval from the medical staff at the Kankakee County Jail for a CT scan. The findings were mostly normal with “the possibility of demyelinating plaque in the setting of multiple sclerosis, ” so an MRI was scheduled. ECF 16 at 25. The subsequent April 3, 2017, MRI results were also mostly normal with “[s]cattered, faintly discrete high signal regions, periventricular deep white matter, consistent with scattered ischemic changes along distribution of lenticular striated arteries. However, limited multiple sclerosis with plaquing in these regions a diagnostic possibility. No high signal lesions in the right and left periventricular area or involvement of cerebellar peduncles, corpus callosum, militate against multiple sclerosis. Clinical correlation required, including other test results for multiple sclerosis.” Id. at 27. The physician interpreting the results also noted, “Scattered periventricular glottic foci with little or no involvement of the optic nerve, corpus callosum, cervical cord or cerebellar peduncles. These areas most consistent with ischemic changes and not multiple sclerosis.” Id.
In making the findings of fact, the court considered the admitted exhibits and the credibility of the witness.
At the hearing, Armour testified that, although he had neck issues dating back to 1994 related to cervical fusion surgery, in the months leading up to his incarceration he was pain-free and had no problems ambulating. He was not taking any prescription medication and relied only on multivitamins and herbs to stay healthy. Armour gradually began experiencing pain and discomfort after his arrival at the Porter County Jail, although there was no physical event-such as a fall or additional injury-that brought it on. By July 18, 2016, he testified he was experiencing “radiating pains from my neck down though my right shoulder, arms, my hands, my leg, and my feet, throbbing, shooting large heavy pains.” Unofficial Transcript at 4. Armour began complaining to Dr. Tchapchet about the pain at that time. He described the initial pain as a six or seven on a pain scale from one to ten; however, the pain noticeably increased by the end of July to an eight and nine. Armour's attorney was aware of the situation, and he advised the jail commander of it, in writing, on July 27, 2016. See Exhibit 5 (attorney letter). The pain remained constant through mid to late September, but it was worse at night and affected Armour's sleep. The pinching, stinging, burning, and throbbing often kept him awake. Armour described the pain as “chronic excruciating pain daily, nonstop.” Unofficial Transcript at 7.
As to the TIAs, Armour testified he was not being treated for high blood pressure issues and had never had a stroke or TIA prior to arriving at the Jail. However, when he received a standard medical examination at intake, it was noted his blood pressure was high. He was prescribed and given Losartan with potassium, a blood pressure medication. With regard to the first TIA on August 18, 2016, he remembers being picked off the ground and hearing a nurse say, “Oh my God....His blood pressure is 265/235, and he's still . . . looking at me.” Unofficial Transcript at 9. The nurse later told him she thought he was “clinically dead.” Id. at 10. Although Dr. Tchaptchet declined to have him transferred to the hospital, Armour admits he was prescribed and given Clonidine, a medication to lower his blood pressure, immediately following the incident and was subsequently placed in medial isolation. He describes this medical isolation unit as administrative detention, “like the hole, screaming, hollering all night, but they told me that-you didn't commit no incident but we are going to put you here to just-it is glass, like, and they sit and watch you.” Id.
When Armour suffered the second TIA the next day, he was under observation. He told the nurse he was feeling the same way as he had earlier, and she indicated she wanted to get him to the hospital. Although Dr. Tchaptchet again declined a transfer, he was given another dose of Clonidine to bring his blood pressure down. Armour remained in medical isolation for a week. While there, he felt “dazed and confused, ” and his hand and right leg were not “operable.” Unofficial Transcript at 11. When he returned to his cell, his blood pressure was scheduled to be monitored at every medical call, which was three times a day. Armour described feeling worse as time went by, having “[n]o balance, no coordination.” Id. at 13. He asked for a medical device or some other type of assistance to help him ambulate, but the staff refused his request. See Exhibit 2 (medical grievances). At one point, he was “knocked over during chow line” because he could not retain his balance. Unofficial Transcript at 13. However, his blood pressure continued to be monitored-albeit sporadically according to Armour-and he received his blood pressure medication. See Exhibit 1 (blood pressure medical notes).
He testified he was essentially left in “pain and suffering” until he was transferred to the Kankakee County Jail. Unofficial Transcript at 16.
Armour tendered a “settlement proposal” for what he believes his ordeal was worth. See Exhibit 3 (settlement proposal). He requested $172,800 in total, and he described his injuries as follows:
Plaintiff suffered chronic pain or burning, stabbing, lancing, tingling, and numbness, pins and needles, los[s] of coordination & balance, shooting pains, muscle wasting and weakness, muscle twitching and cramps in his shoulder, arm, fingers, leg and feet 24/7, which got worse at night. This pain and suffering I experienced resulted to two (2) TIAs due to a nonconcern and delay in providing medical treatment from July 18th to October 4, 2016. I was placed in medical isolation, a dry cell which is the administrative detention (the hole) after having TIA (mini) stroke which suffered me a great deal of mental anguish, depression, and fear of another stroke.Id.
III. Analysis of the Evidence
As noted above, Judge Moody directed this court to conduct an evidentiary hearing and to prepare a report and recommendation on Armour's potential damages related to his complaints of pain and suffering for his undiagnosed neuropathy from July 18, 2016, to September 22, 2016, and the pain he experienced as a result of the two TIAs on August 18-19, 2016, up until the time of his transfer on October 4, 2016. See ECF 40 at 9, 12 (citing Arnett v. Webster, 658 F.3d 742, 752-53 (7th Cir. 2011) (pain and suffering alone caused by a delay in providing treatment can constitute actionable damages)). “Even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true. The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” In re Catt, 368 F.3d 789, 793 (7th Cir. 2004) (citation omitted); see also Yang v. Hardin, 37 F.3d 282, 286 (7th Cir. 1994) (citing United States v. DiMucci, 879 F.2d 1488, 1497 (7th Cir. 1988)).
Compensatory damages are not limited to the actual loss of money; “they include both the physical and mental aspects of injury, even if they are not easy to measure.” 7th Cir. Pattern Jury Instruction 7.27 (2017 rev.). Such damages can include physical, mental, and emotional pain and suffering along with the loss of normal life functions the plaintiff has experienced. Id. However, prisoners who do not allege a physical injury are barred from recovering damages for mental and emotional injuries alone. See Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003) (citing 42 U.S.C. § 1997(e)(e)). The Seventh Circuit has not addressed in depth the question of what qualifies as a “physical injury” under the statute. However, allegations of physical pain can be sufficient to trigger a constitutional violation and the resultant compensation for related emotional damages. See e.g. Thomas v. Illinois, 697 F.3d 612, 614-15 (7th Cir. 2012) (distinguishing psychological harms from disease and physical pain, and classifying the latter two as forms of “physical injury”); see also Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir. 2009) (severe, recurring back and body pain described as “serious, long-term injury”) (emphasis added); Gutierrez v. Peters, 111 F.3d 1364, 1371 n.5 (7th Cir. 1997) (recognizing pain and inflammation, as well as the impairment of life activities such as sitting and standing, suffered as the result of delayed treatment could constitute a compensable injury).
Damages for pain and suffering can be “difficult to quantify.” Hendrickson, 589 F.3d at 892. As such, calculating those damages “does not imply mathematical exactitude.” Id. Instead, the trier of fact must select an amount it believes will “fairly compensate the plaintiff.” Id. at 892-93 (recognizing jury's award of $75,000 was “rationally connected” to plaintiff's self-reported claims of long-term pain and suffering after guard threw him to the ground and kneed him in the back); see also Ascherman v. Catt, 2003 WL 1562213, *5 (S.D. Ind. Feb. 26, 2003) (collecting cases regarding damages awards and noting that physical pain and suffering is compensable, but those types of damages are “notoriously difficult to value in terms of dollars.”). To help determine the appropriate amount of damages, judges must consider comparable awards. See Jutzi-Johnson v. U.S., 263 F.3d 753, 759 (7th Cir. 2001); but see Hendrickson, 589 F.3d at 892 (noting that “such comparisons are rarely dispositive give the fact-specific nature of damages claims”).
Here, Armour credibly testified he experienced significant pain related to his undiagnosed neuropathy beginning in July and continuing through September. The pain was described as constant, chronic, and excruciating even after he had made Dr. Tchapchet aware of its existence. Armour credibly testified it interfered with his sleep and caused him significant emotional distress. Armour also credibly testified he experienced pain, suffering, and emotional distress following the two TIAs in August. Specifically, he noted he was placed in medical isolation in conditions similar to administrate detention (“the hole”) for a week, where he felt mentally anguished and depressed because he feared another TIA or full-blown stroke. Afterwards, he described being left in “pain and suffering, ” with loss of function in his hand and right leg which led to coordination and balance issues for the remainder of his time at the Porter County Jail. Judge Moody limited the period of recovery for the claims related to Armour's neuropathy to sixty-six days, and he similarly limited the period to fortyseven days for the claims related to Armour's condition following the TIAs. There is some overlap between the two timeframes, leaving the total number of actionable days during which Armour experienced some form of pain, suffering, and/or emotional distress as seventy-eight days. Per Armour's own testimony and the additional evidentiary support he provided during the hearing, the bulk of the physical pain he experienced was due to the neuropathy issues he suffered prior to the Neurontin prescription, with some added pain and emotional distress following the TIAs.
This period runs from July 18, 2016, when Armour alleges he first informed Dr. Tchapchet of the issue, to September 22, 2016, when he was seen by an outside physician to discuss the results of an MRI and was prescribed Neurontin for the pain which provided some relief.
This period runs from August 18, 2016, the date of the first TIA, to October 4, 2016, the date Armour was transferred out of the Porter County Jail.
The court has reviewed approximately sixty cases involving similar-although factually distinct-claims of inmates experiencing pain and suffering due to inadequate medical care and/or delayed treatment while incarcerated. Many of the cases that went to trial resulted in a verdict for the defendant(s). Of those cases that either settled or resulted in a jury verdict for the plaintiff, the majority had average awards for compensatory damages that ranged between approximately $15,000 and $30,000. See e.g. Middleton v. Sheriff Dart, 2018 WL 5078178 (N.D. Ill. July 25, 2018) (settlement of $22,000 in compensatory damages for inmate who alleged he suffered emotional distress and pain when his diagnosed sleep apnea and diabetic neuropathy were not appropriately and timely addressed by defendant nurse); Carter v. Bain, 2017 WL 8132147 (N.D. Ill. Oct. 23, 2017) (settlement of $20,000 in compensatory damages after inmate suffered injury to his left leg, low back pain and lower extremity weakness, resulting in inability to walk, continued chronic neuropathy and pain, hypertension and violation of his civil rights while under the care and custody of defendants who were deliberately indifferent to his medical needs); McGiboney v. Agler, 2016 WL 7241482 (D. Idaho Nov. 8, 2016) (jury award of $11,000 in compensatory damages for medical provider's deliberate indifference to inmate's neurological condition of his spine which deteriorated after he was left in an isolation unit for 11 days with no medical care or treatment, resulting in increased pain, paralysis, and urinary incontinence); Hall v. Cty. of Cook, 2016 WL 11505598 (N.D. Ill.Dec. 14, 2016) (settlement of $20,000 in compensatory damages for inmate who had suffered a prior gunshot wound to his penis and was receiving treatment prior to his arrest, but when arrested suffered unnecessary pain and suffering, a urinary tract infection, harassment from other inmates and depression, due to a significant delay in performance of a required staged urethroplasty, as well as denial of his pre-surgical needs, including straight catheters and soap for daily washing of his genital area); Ljevakovic v. Stadnicki, P.A., 2019 WL 13107439 (N.D. Ill. Feb. 21, 2019) (settlement of $15,000 in compensatory damages for inmate who endured months of pain and suffering from kidney stones in violation of his Fourteenth Amendment rights when he requested treatment and medication to address lower back pain but was ignored by medical staff); Slater v. Scott Cty., 2010 WL 4304424 (S.D. Iowa April 23, 2010) (jury award of $35,000 in compensatory damages for pain and suffering after detainee suffered from a painful flare-up of her sickle-cell anemia for two days and required, but was refused, medical attention); Carlisle v. Doublas Cty., 2019 WL 1583747 (D. Or. Feb. 14, 2019) (settlement of $25,000 in compensatory damages for detainee who was refused medication for her previously diagnosed neuropathy for two months and suffered numbness and excruciating nerve pain); Woods a/k/a Smith v. Eboigbe, R.N., 2017 WL 6347117 (N.D. Ill. July 5, 2017) (settlement of $35,000 in compensatory damages reached after inmate suffered decreased use of his left hand and fingers, continual pain, and emotional distress after he cut his tendon and failed to receive adequate medical care or surgery for the injury); Biloche v. Cook Cty., Ill., 2017 WL 5591506 (N.D. Ill. Mar. 27, 2017) (settlement of $25,000 in compensatory damages for inmate after he suffered a compromised immune system, bleeding gums, flu-like symptoms, skin rashes and itching, as well as emotional distress, when he was not timely provided critically prescribed medications weekly).
A few of the similar cases had awards outside of the average range. Compare Wren v. Jail Administrator Engler, 2013 WL 5631554 (E.D. Ark. Aug. 28, 2013) (jury award of $5,000 in compensatory damages for inmate's pain and suffering after he was bitten by a spider and developed a staph infection which led to severe pain for which he failed to receive a timely or adequate medical care) and Kipp v. Officer Metz, 2013 WL 10568751 (W.D. Pa. May 23, 2013) (bench trial resulted in $3,000 compensatory damages award for pain and suffering after inmate was denied prompt medical care for a broken nose, ruptured blood vessels in both eyes, perforated eardrum, post-traumatic stress disorder, nightmares, night terrors, heightened anxiety, phobias and depression) with Nichols v. Knox Cty. Tenn., 2016 WL 7177910 (E.D. Tenn. Aug. 30, 2016) (jury award of $140,000 in compensatory damages for pain and suffering plus emotional distress for inmate who fell from top bunk and fractured/crushed two to three vertebrae, resulting in the need for spinal surgery and a bone graft after 70-day delay caused by the medical staff in diagnosing his vertebrae injury) and Choquette v. Hammond, M.D., 018 WL 8800692 (W.D. Wash. Nov. 2, 2018) (jury awarded $149,000 in compensatory damages to inmate after medical staff denied his request for the medication Gabapentin to treat neuropathic pain related to his multiple sclerosis condition). However, the court finds the majority of the average awards noted above to be consistent with the damages in this case.
In this case, the court finds Armour produced credible, consistent, and persuasive testimony that he experienced pain, suffering, and emotional distress when Dr. Tchaptchet disregarded his complaints related to his undiagnosed neuropathy from July 18, 2016, to September 22, 2016, and again following the two TIAs on August 18-19, 2016, up until the time of his transfer on October 4, 2016. It is clear a delay in providing adequate treatment or medication can lead to pain and “needless suffering” as it did here according to the undisputed facts alleged in Armour's amended complaint. See Gil v. Reed, 381 F.3d 649, 662 (7th Cir. 2004). As such, after careful consideration of the credibility and demeanor of the witness during the hearing, as well as a review of the relevant evidence submitted by Armour and the comparable judgments in similar cases, the court finds it reasonable to award Armour $19,800 (or $300 per day) for the pain and suffering he experienced as a result of his undiagnosed neuropathy and an additional $4,700 (or $100 per day) for the pain and emotional distress he experienced following the TIAs.
IV. Conclusion
For these reasons, the court RECOMMENDS that default judgment be granted in Donald Lee Armour's favor in the amount of $24,500.
NOTICE IS HEREBY GIVEN that within 14 days after being served with a copy of this recommended disposition a party may serve and file specific, written objections to the proposed findings and/or recommendations. FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b). Failure to file objections within the specified time waives the right to appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Lerro v. Quaker Oats Co., 84 F.3d 239 (7th Cir. 1996).
SO ORDERED.