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Bass v. Wallenstein

decided: July 30, 1985.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 78 C 3965-William T. Hart, Judge.

Wood and Eschbach, Circuit Judges, and Swygert, Senior Circuit Judge.

Author: Wood

WOOD, Circuit Judge.

In this section 1983 action claiming deprivations of decedent Johnny Lee Bass' eighth amendment right to be free from cruel and unusual punishment and his fourteenth amendment right not to be deprived of life without due process of law, the jury returned a verdict in favor of the administrator of Bass' estate in the amount of $250,000. The defendants found to be liable,*fn1 Wallenstein, Assistant Warden at Stateville Correctional Center in Joliet, Illinois ("Stateville"), Such, Medical Unit Administrator at Stateville, and Dr. Hoffman, a physician at the Stateville hospital, appeal from the district court's denial of their motions for judgment notwithstanding the verdict or, in the alternative, for a new trial, and for remittitur.

The case went to trial on plaintiff's second amended complaint, which alleged that Wallenstein and Such failed in their duty to create and implement an adequate emergency medical plan at Stateville and that Dr. Hoffman failed in his duty to provide emergency medical treatment; as a result of this deliberate indifference to the serious medical needs of Bass, the twenty-seven-year old died from cardiorespiratory arrest.


A detailed review of the evidence is necessary. Presented first is the evidence of the events of October 19 and 20, 1976, and then the evidence of the adequacy of the Stateville emergency medical plan.


Gary Devers, a correctional officer at Stateville, testified that he was working the 11:00 P.M. to 7:00 A.M. shift on October 19-20, 1976. At 11:30 P.M., Bass said he was feeling ill and asked for medical assistance. Devers phoned the hospital and spoke to medical technician Vadbunker, who told Devers not to send Bass to the hospital. Instead, Vadbunker sent two pills which Devers then gave to Bass. At approximately 2:00 A.M. on October 20, Bass told Devers that he had to get to the hospital. Devers again called Vadbunker, who refused to permit Devers to bring Bass to the hospital, stating that the pills should work. Devers stated that he did not challenge Vadbunker's actions because Captain Harralson, the midnight shift commander, previously had told Devers not to "bother" the medical technicians if they did not want to see inmates. At approximately 6:00 A.M., Bass told Devers that he was "really hurting." Devers phoned the hospital sometime between 6:35 A.M. and 6:40 A.M.; he spoke with medical technician Triola, who said he would take care of the problem. Devers, who went off duty at 6:50 A.M., recorded all these events in the logbook maintained in Cellhouse B West.

Walter Vadbunker testified that the emergency room logbook contained four entries for the midnight shift on October 19 and 20, 1976. None of these entries was made by Vadbunker and none concerned Bass. The initials of the medical technician who made the entries were "G.B." Vadbunker did not know who that person might be.

Medical technician Joseph Triola testified that he did not know Devers and that he did not receive a phone call regarding inmate Bass from someone identifying himself as Devers. He further testified that he first learned that Bass needed medical assistance at approximately 8:30 A.M. on October 20. He proceeded to Bass' cell, taking with him only a stethoscope. Triola checked Bass' carotid artery and began cardiopulmonary resuscitation ("CPR") in an attempt to revive him. Bass was neither intubated, catherized, nor put on an intravenous ("IV") line. Triola did not remember stating that Bass had a weak pulse or that there might be a slight heartbeat. Triola testified that it took three to four minutes to transport Bass to the hospital. Bass arrived there at 8:45 A.M.; Dr. Hoffman, who was already there, examined him. According to Triola, Dr. Hoffman then administered electric shock treatment. Triola prepared no report on the incident.

Two correctional officers, Martin Shifflet and Marshall Edwards, were present with Triola in Bass' cell. Shifflet testified that Triola examined Bass and indicated that he had a slight pulse. Shifflet further testified that at no time did Triola indicate that Bass was dead. Edwards testified that he observed Triola and Shifflet perform CPR and heard Triola say there might be a heartbeat. Edwards further testified that in examining Bass' eyes, he (Edwards) did not use any light to check pupil response.

Tommy Lee Cowans, an emergency medical technician at Stateville since 1975, was working the day shift (7:00 A.M. to 3:00 P.M.) on October 20, 1976. Cowans testified that Such advised him that an emergency case would be coming in. He further testified that when Bass was brought into the emergency room by Triola and two officers, he was cyanotic.*fn2 Cowans checked Bass' heartbeat and pulse, found none, and immediately began CPR. Triola, who was upset and "screaming" that he did not know what to do and that he "didn't know," was told by Cowans to be quiet. Cowans worked on Bass for approximately forty-five minutes, which, he testified, he would not have done if Bass were obviously dead. At one point, Cowans testified that he was able to perform only mouth-to-mouth resuscitation and cardiac massage because, at that time, medical technicians were not permitted to administer any kind of injection or electric shock to a cardiac arrest patient. At another point, Cowans stated that he had not administered electric shock to a patient before Bass. Cowans further testified that while he was working on Bass, he observed Dr. Hoffman enter the emergency room; Cowans stated that fifteen minutes could have elapsed between the time Bass was brought into the emergency room and the time Dr. Hoffman arrived.*fn3

Mary Hall, a registered nurse at Stateville, testified that she and correctional officer Blaine Voris were accompanying Dr. Hoffman on rounds in the second floor medical unit between 8:00 A.M. and 9:00 A.M. on October 20. She testified that while making rounds, Dr. Hoffman received a telephone call from Such. She heard Dr. Hoffman say that he was not to be spoken to in that manner. After the conversation, Dr. Hoffman left the second floor. She did not accompany him. Voris testified that while making rounds on the second floor of the hospital with Hall and Dr. Hoffman, he answered the telephone three times. The first call was from Mrs. Peterson, who asked to speak with Dr. Hoffman, indicating that it was an emergency. Dr. Hoffman answered the phone, and stated that the inmate should be sent to an outside hospital. Dr. Hoffman returned to his rounds. The telephone rang a second time. Sergeant Waller requested that Dr. Hoffman come down to the emergency room. Voris told Dr. Hoffman that Waller was calling regarding an emergency; Dr. Hoffman continued on his rounds. Officer Hayes then came to the second floor, relaying to Voris the message that Such wanted Dr. Hoffman in the emergency room. Voris informed Dr. Hoffman, who continued on his rounds. The telephone rang yet a third time. The caller was Such, who wanted to speak with Dr. Hoffman. Dr. Hoffman answered and was heard by Voris to say that Such had no right to speak to him that way and that he had not been notified of an emergency. Dr. Hoffman then left the second floor unit.

Such testified that on October 20, 1976, he arrived at his office in the medical unit at Stateville at approximately 8:00 A.M. He then was informed of the emergency by Sergeant Waller. Officer Hayes was advised to contact Dr. Hoffman. Such later telephoned Dr. Hoffman and told him that an emergency required his presence in the emergency room; in fact, Such insisted that Dr. Hoffman come to the emergency room. Dr. Hoffman was huffy, even irate. Such testified that after his conversation with Dr. Hoffman, five to ten minutes passed before Dr. Hoffman entered the emergency room.

Dr. Hoffman testified that he was the only physician on duty on October 20, 1976 and that it was his duty to respond to all medical emergencies. Dr. Hoffman had no personal recollection of the events of October 20 or of the circumstances of Bass' death; he did not recall examining Bass or pronouncing him dead. A report written by Dr. Hoffman on October 20, 1976 following Bass' death indicated that he saw Bass between 8:50 A.M. and 9:00 A.M. that morning; that he provided no treatment; and that he merely examined Bass and pronounced him dead.

Dr. Edward Shalgos, a forensic pathologist who performed the autopsy on Bass on October 20, 1976 at the request of the Will County Coroner, testified that before performing the autopsy he telephoned Stateville to obtain basic information on the circumstances of Bass' death. He was informed by unnamed prison personnel that when Bass was found lying on his cot he was unresponsive but had a weak pulse; that on the spot resuscitative efforts were unsuccessful; that Bass was taken to the emergency room, arriving there at 8:50; that further resuscitative efforts were unsuccessful; and that Bass then was pronounced dead by Dr. Hoffman.

Dr. Shalgos further testified that his external examination of Bass revealed electrode marks on the lower chest, the result of resuscitative efforts. An internal examination revealed clusters of minute hemorrhages in the uppermost part of the pharynx. According to Dr. Shalgos, Bass "very definitely" was alive at the time he incurred the hemorrhages because hemorrhages do not develop after death. Microscopic examination confirmed that the hemorrhages were "fresh," occurring very shortly before Bass died. Dr. Shalgos further concluded that the hemorrhages were caused by intubation, a resuscitative effort.

Dr. Shalgos also explained what was meant by the final conclusion of his supplemental report, which stated that "death is considered to be related to cardiorespiratory arrest of unknown cause occurring during sleep. . . ." The phrase "occurring during sleep" does not mean that Bass died in his sleep; rather, the phrase meant that the onset of the condition from which Bass died occurred while he was on the cot in his cell.

Dr. Shalgos further testified that the toxicology report was negative. And, although Dr. Hoffman's report on Bass prepared following his death noted vein track marks indicating drug use, Shalgos, who was specifically looking for such marks, found none. Shalgos found neither puncture wounds in the area of the heart that would have indicated injections were given in a resuscitative effort nor marks that would have indicated establishment of an intravenous line.

Finally, Dr. Shalgos testified that the estimated time of death in his report -- 8:00 A.M. -- was based on information he had received. He also stated that it would have been impossible for him to determine the time of death within 40 to 45 minutes. The death certificate signed by the coroner stated that Bass was pronounced dead at 9:00 A.M.

Plaintiff's expert, Dr. Joseph Marek, an assistant professor at the Loyola University School of Medicine who teaches in the area of cardiology and is board-certified in cardiology and internal medicine, testified that a person who has a weak pulse is not in full cardiac arrest and has a greater chance of being successfully resuscitated. He further testified that dilated pupils do not indicate unresuscitability. In Dr. Marek's opinion, a twenty-seven-year-old person with no prior heart disease found unconscious but with a feeble pulse has an excellent chance of being resuscitated if advanced cardiac life support is provided within two minutes.

Dr. William Buckingham, Dr. Hoffman's expert witness, opined that Bass was dead when he was found in his cell at 8:35 A.M. He based this opinion on the evidence that Bass' pupils were fixed and dilated; that Bass was not breathing; and that Bass had no heartbeat. Buckingham disagreed with the position of the American Heart Association, found in its textbook of Advanced Cardiac Life Support, that the absence of pupillary response to light is not a reliable sign of brain death. He testified that the passage of urine and the presence of gastric contents in Bass' lungs indicated that Bass died in his sleep. Buckingham testified ...

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