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March 31, 1975


The opinion of the court was delivered by: Will, District Judge.


The named plaintiffs, Rosemary Doyle, as Administrator for the estate of Mary Ann Hawken, deceased, and Barbara Hawken, as sister and next friend of Mary Ann Hawken, bring this action against Unicare Health Services, Inc. (Unicare), and various of its directors and employees, for alleged violations of Mary Ann Hawken's civil rights, 42 U.S.C. § 1983, 1985(3) and 1986.

Unicare, a privately owned, for profit, health care facility, licensed by the State of Illinois, contracted to provide full-time supervision and care to Mary Ann Hawken, a mentally retarded adult. Asserting that the defendants breached their obligation to Mary Ann Hawken by denying her necessary medical attention, thereby contributing to her death, the plaintiffs now seek monetary damages in the amount of $1,000,000. Federal jurisdiction is founded upon 28 U.S.C. § 1343. Plaintiffs also join two pendent claims, one sounding in tort for alleged malpractice, and the second, for breach of contract for failure to provide the decedent with promised programs, services, and treatment.

Defendants move to dismiss these claims charging (1) lack of jurisdiction, and (2) failure to state a valid cause of action. For the reasons set forth hereinafter, the defendants' motions will be granted.

The plaintiffs' factual allegations reflect that, on February 1, 1971, they entered into a written agreement with Unicare, whereby it would provide full-time care and treatment for Mary Ann Hawken's physical and emotional needs. Pursuant to this agreement, the defendants allegedly received payments from the deceased, her relatives, the Social Security Administration, and the State of Illinois.


The defendants raise two challenges to the plaintiffs' § 1983 claim; first, that the conduct described in plaintiffs' complaint does not give rise to a valid claim of deprivation of any rights, privileges, or immunities as contemplated by the Civil Rights Act, and second, that Unicare was not acting under the color of state law, and therefore is not subject to suit under § 1983.

Regarding the first challenge, the courts have generally recognized that custodial institutions under the aegis of the State have a constitutional obligation to ensure that an inmate is secure in his life and person while confined there. Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); see also, Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961). This has been interpreted to require these institutions to provide necessary and reasonable medical treatment to those entrusted to their care. Thomas v. Pate, 493 F.2d 151 (7th Cir. 1974); Accord, La Batt v. Twomey, 513 F.2d 641 (7th Cir. 1974).

The institution's duty, however, is tempered, or conditioned, by its broad discretion in determining the nature and extent of medical treatment to be afforded its residents. The courts have refused to entertain § 1983 lawsuits where the plaintiff merely charges dissatisfaction with the adequacy of the treatment received, Thomas, supra, or that it was administered negligently. Scharfenberger v. Holmes, 384 F. Supp. 1269 (W.D.Ky. 1974). The courts have carefully avoided second-guessing licensed physicians as to the propriety of their prescribed treatment.

  As expressed in Thomas, supra, 493 F.2d at 158, however, in the
prison context:

     . . a claim of medical mistreatment rises to
  fourteenth amendment proportions when it asserts a
  refusal to provide essential medical care after a
  prisoner brings his medical complaint to the
  attention of prison authorities. . . . In the
  ultimate determination whether medical care was in
  fact essential, the question would be, we think,
  whether it had been proved that a physician
  exercising ordinary skill and care at the time of the
  request for medical care would have concluded that
  the symptoms of the prisoner evidenced a serious
  disease or injury; that the potential for harm by
  reason of delay or denial of medical care was
  substantial; and that such harm did result. In
  deciding at the pleading stage whether a claim has
  been stated, the court must consider whether the
  factual allegations of the complaint suggests the
  presence of these factors. [citations omitted]
    We also think that it is sufficient to allege facts
  which suggest that the medical care provided is so
  clearly inadequate as to amount to a refusal to
  provide essential care or is so blatantly
  inappropriate as to evidence intentional mistreatment
  likely to seriously aggravate

  the prisoner's condition. [citations omitted]

If the defendants were acting under "color of state law," as required for jurisdiction under § 1983 at the time in question, the plaintiffs' complaint states a valid cause of action for refusal to supply essential medical treatment.

Accepting plaintiffs' factual allegations as true, they set forth that (1) the deceased was a mentally retarded adult entrusted to the defendants' care, (2) she received a head injury sufficient to require emergency treatment, (3) after receiving initial treatment she experienced additional pain and discomfort which she brought to the attention of the defendants without recourse, (4) she then suffered a seizure which defendants knew about and still refused additional treatment, and (5) she ultimately died without receiving any further treatment. Based upon these allegations, the plaintiffs contend that defendants, although aware of Mary Ann Hawken's deteriorating physical condition, knowingly, willfully, and wantonly refused to procure readily available medical treatment which would have saved Mary Ann Hawken's life, in violation of their contractural, ...

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