Opinion
No. 97-3036
October 26, 1999
ORDER
This cause is before the Court on Defendants' Motion for Summary Judgment. Plaintiff, a former state prisoner, brought a claim under 42 U.S.C. § 1983 against Defendants, health care providers at the Western Illinois Correctional Center ("Western"). Plaintiff alleges that all Defendants violated his constitutional rights and acted with deliberate indifference to his health, by failing to provide and delaying necessary medical care.
I. STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed R. Civ. Pro. 56(c); see Ruiz-Rivera v. Moyer, 70 F.3d 498, 500-01 (7th Cir. 1995). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
In determining whether a genuine issue of material fact exists, the Court must consider the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir. 1987).
II. BACKGROUND
Plaintiff John Walker was a state prisoner in the Illinois Department of Correction ("I.D.O.C."). Walker was an inmate at Western Illinois Correctional Center (Western) at the time of the incident. Defendants Pamela Dunbar, R.N. and Vickie Rowland, L.P.N. are nurses who were contracted by the I.D.O.C. to work in the health care unit at Western. Defendants Ivy Benjamin, M.D., Adrian Feinerman, M.D., Ansar Ansari, M.D., and Virgilio Pilapil, M.D., are physicians who were contracted by the I.D.O.C. to work in the health care unit at Western.
On July 15, 1995, while Walker was lying in his bunk in his cell, a steel drawer fell and stuck his right hand and a screw punctured his small finger. Walker suffered a cut on his small finger, and injury to the joint at the base of his finger, and other injuries. Walker told the correctional officer who made rounds that his finger had been injured and that he needed medical care, but Walker was not permitted to go to the health care unit at that time.
Walker was first seen at the health care unit on July 17, 1995. He was examined only by Nurse Rowland. Walker told Nurse Rowland that a steel drawer had fallen and struck his right hand, and that he was in great pain. Nurse Rowland told Walker that his hand was swollen and to soak it in salt water. On July 18, 1995, Walker did not attend the Doctor's call.
On July 19, 1995, Walker returned to the health care unit, where he complained that he had a great deal of pain in his right hand, that it was infected, draining pus, and that his finger was broken. At this time, Nurse Rowland called Dr. Feinerman and spoke to Feinerman on the phone. Dr. Feinerman practices internal medicine and worked only part-time at Western, and attended Western inmates only for normal sick calls. After being informed of the infection and possible fracture, Dr. Feinerman ordered an x-ray over the phone.
Walker saw Nurse Collins-Thomas and asked her to help him see a doctor. Walker showed Nurse Collins-Thomas his injured hand.
On July 23, 1995, Walker was seen by a physician, Dr. Benjamin. Dr. Benjamin is board certified in pathology and worked part-time at Western. Walker's arm was swollen and he could not move his hand, and it was still draining pus. Dr. Benjamin observed some swelling and pain and noted an area of infection. Dr. Benjamin ordered an x-ray and antibiotic ointment.
On July 28, 1995, Walker returned to the health care unit complaining about pain and infection in his hand and finger.
On July 29, 1995, Walker returned to the health care unit and was seen by Dr. Benjamin and Nurse Rowland. Dr. Benjamin again noted the infection. Dr. Benjamin prescribed Keflex (an antibiotic).
Walker continued to suffer pain, and pus continued to drain from his hand. He was not seen at the health care unit until August 10, 1995.
On August 10, 1995, Walker returned to the health care unit, with pain in his right hand and signs of infection. Nurse Dunbar attended Plaintiff and saw that Plaintiff had an abscess (collection of pus surrounded by inflamed tissue) and was in great pain. Dr. Pilapel, a family physician, examined Walker, ordered an x-ray, culture, complete blood count, and immediately referred Walker to Dr. Ansari, a surgeon. On August 10, 1995, Dr. Ansari, determined that there was an infection and that Walker would need to have a specialist look at the injury. The medical records for 8/10/95 include a note to rule out osteomyelitis (an infection of the bone which can cause permanent damage to the joint). Dr. Ansari recommended a semi-emergent I D in a hospital setting. (irrigation and debridement of the wound). Dr. Ansari did not examine Walker after August 10, 1995.
On August 11, 1995, Dr. Feinerman was called and was informed that the earlier x-ray showed a displacement of the joint, and that Plaintiff had an infection. Dr. Feinerman ordered a dose of Cipro (antibiotic), and noted not to start intravenous (I.V.) antibiotics until a culture was done.
On August 12, 1995, Walker returned to the health care unit complaining of pain and infection, and was seen by Dr. Benjamin. Dr. Benjamin diagnosed infection going into the bone and displacement of the bone at the base of the finger, which resulted from the infection. It was her opinion, that Walker had developed osteomyelitis. Dr. Benjamin prescribed Cipro. Dr. Benjamin did not see Walker again until September 10, 1995.
On August 13, 1995, Walker returned to the health care unit complaining of pain, infection and swelling of the right hand. Nurse Dunbar saw Walker.
No physician saw Walker from August 13, 1995 until August 24, 1995.
Walker was seen by a specialist, Dr. Herrin on August 24, 1995 in Springfield. Dr. Herrin examined Walker's hand and observed the joint of his right finger was very swollen. The x-rays showed a destructive process in the joint consistent with osteomyeletis. Dr. Herrin determined that Walker would need emergency surgery. Walker was taken to Memorial Hospital and had Dr. Herrin performed surgery on his right hand and finger, and consulted with Dr. Graham, who specialized in infectious diseases.
III. ANALYSIS
Prison officials violate the Eight Amendment's proscription against cruel and unusual punishments when their conduct demonstrates "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Deliberate indifference to serious medical need is a clear constitutional violation following the Court's decision in Estelle, and Defendants cannot avail themselves of qualified immunity if there conduct, with respect to Plaintiff, could be determined by the trier of fact to be "deliberately indifferent."
The standard articulated in Estelle contains both an objective and subjective element. Farmer v. Brennan, 511 U.S. 825, 834 (1994), Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996). First, a Plaintiff must show that his condition was sufficiently serious, an objective standard. Farmer, 511 U.S. at 834. A condition is serious if "the failure to treat a prisoner's condition could result in further significant injury or unnecessary and wanton infliction of pain." Dunigan v. Winnebago County, 1999 WL 16778 *4 (7th Cir. 1999). Second, a plaintiff must show that an official acted with the requisite culpable state of mind, deliberate indifference, a subjective standard.Farmer, 511 U.S. at 834. A state official is deliberately indifferent if he "knows of and disregard an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."Id. at 837.
Delays in treating painful medical conditions support Eighth Amendment claims. "[A]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." Estelle, 429 U.S. at 103. In determining whether the denial or delay in treatment constitutes "deliberately indifferent," the Court may consider the "severity of the medical problem, the potential for harm if medical care is denied or delayed, and whether any harm actually resulted from the lack of medical attention." Gutierrez v. Peters, 111 F.3d 1364, 1370 (7th Cir. 1997), see also, Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996), Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996). The Seventh Circuit recently recognized in a failure to provide medical treatment case, that a doctor's insufficient attention to length of time the inmate had to wait before significant efforts on his behalf began, raised a factual question not appropriately resolved on summary judgment. Jones v. Simmek, 1999 WL 731931 (7th Cir., 1999).
There is clearly an issue of fact whether Walker had a serious medical condition. Mr. Walker had a laceration of the finger which developed an infection. The condition was diagnosed as osteomyeltis which can cause permanent damage to the bone and joint. Surgery was required as a result of the infection. The infection caused erosion of the bone which resulted in misalignment of the fifth finger of his right hand. The trier of fact could conclude that the failure to treat such an injury resulted in further significant injury or the unnecessary and wanton infliction of pain.
The second element of the "deliberate indifference to serious medical needs" standard is whether each Defendant knew of and disregarded an excessive risk to Plaintiff's health or unreasonably delayed treatment.
Nurse Rowland
Nurse Rowland first saw Walker on July 17, 1995. Walker told Nurse Rowland that a steel drawer had fallen and struck his right hand, and that he was in great pain. Nurse Rowland did not call a doctor at this time, but scheduled Plaintiff to return on July 19, 1995. Nurse Rowland told Plaintiff that his hand was swollen and to soak it in salt water. Nurse Rowland saw Plaintiff again on July 19, 1995. Nurse Rowland observed that Walker's right hand and fingers were swollen, and there was an open cut with pus. Nurse Rowland called Dr. Feinerman and informed him of Walker's injury.
The Court recognizes that a nurse's abilities are limited, and that nurses cannot prescribe medicine, order x-rays, or refer an inmate to a specialist. On July 17, 1995, Nurse Rowland observed the new injury and provided reasonable medical care to Walker. On July 19, 1995, when Nurse Rowland observed continued swelling and a possible infection, she immediately contacted Dr. Feinerman and followed the directions given. These actions are appropriate actions of a nurse under these circumstances.
The Court finds that there is no issue of fact as to whether Nurse Rowland was deliberately indifferent to Walker's serious medical needs.
Nurse Dunbar
On August 10, 1995 Nurse Dunbar observed that Plaintiff had an abscess on his hand and was in great pain. On August 13, 1995, Plaintiff was again seen by Nurse Dunbar where he complained of severe pain, infection and swelling of the right hand. A reasonable trier of fact could conclude that a Nurse Dunbar, based on Walker's complaints and her own observations on August 13, 1995, was aware that Walker's injury might result in further infection and pain and that the injury was serious enough to need continued physician's care. While Walker had been attended by several doctors by this time, a critical fact with respect to the conduct of Nurse Dunbar is that Walker was not seen again by a nurse or physician from August 13, 1995, to August 24, 1995. Walker has raised an issue of fact that the absence of treatment during this period caused the infection to progress. In light of the permanent damage that resulted, and the pain and discomfort alleged, the Court finds that there is an issue of fact whether a reasonable nurse should have found Walker's condition on August 13, 1995 serious enough to merit contacting a physician for continued physician evaluation and treatment during this critical period.
Dr. Feinerman
On July 19, 1995, Plaintiff returned to the health care unit, and complained to Nurse Rowland that he had a great deal of pain in his right hand, that it was infected, and that his finger was broken. Nurse Rowland called Dr. Feinerman and spoke to him on the phone. After being informed of the potential fracture and infection, Dr. Feinerman ordered an x-ray over the phone. On August 11, 1995, Dr. Feinerman was called and was informed that the x-ray showed a displacement of the joint, and that Plaintiff had an infection. Dr. Feinerman ordered a dose of Cipro (antibiotic), and noted not to start intravenous (I.V.) antibiotics until a culture was done.
The Court finds that there is an issue of fact as to whether Dr. Feinerman was deliberately indifferent to Walker's serious medical needs. A reasonable trier of fact could conclude that Dr. Feinerman, based on the information conveyed by the Nurse Rowland, was aware that Walker's injury involved an infection and pain, and that the injury was serious enough to require further specialized treatment.
Dr. Feinerman first attended Walker on July 19, 1995, but Walker was not seen by a specialist until August 24, 1995. The most effective treatment for the infection, I.V. antibiotics, was not given until over a month after the infection was first noted. Walker ultimately required emergency surgery and the infection resulted in permanent damage.
During this critical period, Dr. Feinerman did not order I.V. antibiotics, did not refer Walker to a specialist, nor did she review the x-rays she ordered or the x-ray reports. The delay in treatment creates an issue of fact as to deliberate indifference. In light of the serious infection and permanent damage that resulted, and the pain and discomfort alleged, the Court finds there is an issue of fact that a reasonable physician should have found Walker's condition serious enough to merit a prompt evaluation by a specialist and treatment.
Dr. Benjamin
Dr. Benjamin first saw Walker on July 23, 1995. By this time, Walker's entire arm was swollen and he could not move his hand, and it was draining pus. Dr. Benjamin observed some swelling and pain and noted an area of infection. On July 29, 1995, Dr. Benjamin again noted the infection, prescribed Keflex, and told Plaintiff to return in a week. On August 12, 1995, Walker returned to the health care unit complaining of great pain and infection. Dr. Benjamin diagnosed infection going into the bone and displacement of the bone at the base of the finger, which resulted from the infection. It was her opinion, the Walker had developed osteomyelitis. Dr. Benjamin prescribed Cipro. Dr. Benjamin did not see Walker again until September 10, 1995.
Dr. Benjamin was made aware of both the potential fracture and observed the area infection as early as July 23, 1995. Dr. Benjamin prescribed oral and topical antibiotics on July 29, 1995 and August 11, 1995, Benjamin did not order I.V. antibiotics nor did she refer Walker to a specialist. Dr. Benjamin saw Walker on three separate occasions, July 23, July 29, August 11, during which time the trier of fact could concluded that the infection progressed in severity. However, Walker was never referred to a specialist by Dr. Benjamin, and the most effective treatment for the infection, I.V. antibiotics, was not given until over a month after the infection was first noted by Dr. Benjamin. This delay in treatment creates an issue of fact as to deliberate indifference. In light of the serious infection and permanent damage that resulted, and the pain and discomfort alleged, the Court finds there is an issue of fact whether a reasonable physician, based on the physician's own observations and the patient's history, should have appropriately treated the infection, and referred to Walker to a specialist, without undue delay.
Dr. Pilapel and Dr. Ansari
On August 10, 1995, Dr. Pilapel examined Walker for the first, and only, time and noted an abscess on his hand and that he was in great pain. Dr. Pilapel, a family physician, ordered an x-ray, culture, and complete blood count, and then referred Walker to Dr. Ansari, a surgeon, who was at Western on August 10, 1995. Dr. Pilapel satisfactorily fulfilled his duties. The Court finds there is no issue of fact as to whether Dr. Pilapel was deliberately indifferent to Walker's serious medical needs.
Dr. Ansari, on August 10, 1995, determined that there was an infection and that it was eating away at the bone. Ansari determined that Walker needed to see a specialist, and directed that Walker see an orthopedic specialist. Dr. Ansari recommended a semi-emergent I D in a hospital setting. (irrigation and debridement of the wound). Dr. Ansari did not examine Walker again after August 10, 1995.
Plaintiff was not seen by a physician until August 24, 1995. The trier of fact could conclude the delay in seeing a specialist and/or the absence of antibiotics during this period caused the infection to progress and caused permanent damage to the bone. Dr. Pilapel determined that Walker's injury required immediate consultation by Dr. Ansari, a surgeon. Dr. Ansari determined that Walker required hospital treatment and care by a specialist. However, Walker was not seen by a specialist, and surgery was not performed, until two weeks later. In light of the permanent damage that resulted, and the pain and discomfort alleged, the trier of fact could conclude that the delay in specialized treatment over the following two weeks, had Dr. Ansari been able to expedite such treatment, constituted deliberate indifference and unnecessary infliction of injury, pain and suffering.
IV. CONCLUSION
Accordingly, the Court finds that Defendants Nurse Rowland and Dr. Pilapel have demonstrated that there is no issue of material fact concerning their involvement herein, and thus are the only Defendants entitled to summary judgment as a matter of law. Therefore, Defendants Motion for Summary Judge is ALLOWED only as to Dr. Pilapel and Nurse Rowland. The Defendants' Motion for Summary Judgment is DENIED as to all other Defendants.
The matter is set for final pre-trial conference on December 15, 1999 at 10:30 a.m. Trial date to be selected at final pre-trial conference.