Snipes v. DeTella, 95 F.3d 586, No. 94-2313, slip op. at 7 (7th Cir. Sept. 9, 1996) (quoting Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1995). Deliberate indifference may be manifested by officials "in intentionally denying or delaying access to medical care." Estelle, 429 U.S. at 104-05.
Here, Senisais' broken hand undoubtedly constitutes a serious injury. A medical need is serious if it is "life threatening or poses a risk of needless pain or lingering disability if not treated at once." Davis v. Jones, 936 F.2d 971, 972 (7th Cir. 1991). Specifically, the Seventh Circuit has held that a broken hand is a serious injury, and permanent harm or a 'lingering disability' could result absent proper evaluation, possible realignment, and treatment. Murphy v. Walker, 51 F.3d 714, 720 (7th Cir. 1995).
Accordingly, the court turns its inquiry to whether defendants acted with deliberate indifference to Senisais' broken hand. Funk contends in his motion to dismiss that Senisais' disagreement with the medical care provided is not, without more, a sufficient basis to indicate that he acted with deliberate indifference. While caselaw clearly supports Funk's contention, see e.g. Snipes v. DeTella, 95 F.3d 586, No. 94-2313, slip op. at 8 (7th Cir. Sept. 9, 1996), this argument misses the point. The crux of Senisais' complaint is that defendant delayed medical treatment for a nine-day period that resulted in substantial harm; it is not a dispute regarding the course of treatment he received.
It is reasonable to infer from the complaint that Funk's failure to provide or otherwise procure competent medical aid for nine days suggests that he acted with deliberate indifference. The mere fact of delay in providing medical care is not per se evidence of deliberate indifference. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). Rather, to establish a constitutional violation, a plaintiff must demonstrate that he suffered "substantial harm" as a result of a delay in receiving medical care. Thomas v. Pate, 493 F.2d 151, 158 (7th Cir.), cert. denied, 419 U.S. 879, 42 L. Ed. 2d 119, 95 S. Ct. 143 (1974), vacated on other grounds; Anderson-El v. O'Keefe, 897 F. Supp. 1093, 1097 (N.D.Ill. 1995). Here, Senisais specifically alleges that the delay in medical care resulted in substantial harm. Senisais fell and injured his hand on November 20, 1994. Although his hand was twice diagnosed as broken on the day of the accident, an additional nine days passed before his hand was properly set in a cast on November 29, 1994. Senisais describes numerous requests for assistance in which he complained of the pain. Significantly, Senisais also alleges that he has a knot on the middle of his right hand and suffers pain where the knot is located. Senisais adds that doctors "should have known that a broken bone needs to be set and casted within a short period of time to make sure the bone is setting in the right place before the bone startes [sic] to mend togeather [sic]. To which the petitioner contends was not done for 9 days after the bone was broken. Therefore it is the petitioners contention that there was very much delibert indifference in the treatment of the petitioners right hand." The court agrees. A reasonable doctor, such as Funk, should have recognized the need for proper treatment without delay. See Murphy, 51 F.3d at 720 ("In the vast majority of instances, any reasonable officer ought to conclude that a broken hand is a serious injury and that a cast is necessary"). Construing the allegations in the light most favorably to Senisais, the court cannot conclude beyond doubt that Senisais can prove no set of facts in support of his claim. Accordingly, the court denies Funk's motion to dismiss.
Likewise, Duffy has moved to dismiss Senisais' complaint. Initially, Duffy cites Section 2-622 of the Illinois Code of Civil Procedure,
which requires a plaintiff seeking damages due to medical malpractice to file an affidavit containing certain information along with his complaint. Duffy argues that Senisais' failure to file any such 2-622 affidavit against Duffy is grounds for dismissal. Duffy is clearly mistaken. Senisais has brought this suit pursuant to 42 U.S.C. § 1983 seeking damages for the alleged violation of his constitutional rights; this is not a claim of medical malpractice. Moreover, Senisais has filed his complaint in federal district court seeking redress for the alleged violation of federal rights. In this court, the Federal Rules of Civil Procedure govern, not the Illinois Code of Civil Procedure. As such, Section 2-622 is inapplicable. Thus, any failure to file an affidavit is not sufficient grounds for dismissal.
Moreover, Duffy contends that the allegations in Senisais' complaint do not sufficiently state a claim against him under § 1983. Duffy argues that Senisais failed to specify what Duffy did that was allegedly negligent. Although Senisais' complaint is somewhat general, it clearly includes Duffy as one of the defendants who contributed to his suffering and the permanent disfigurement of his hand and who acted with deliberate indifference to his serious medical needs. The complaint further describes encounters with Duffy in which Senisais' concerns allegedly went unheeded. While the court cannot determine on the limited record whether Duffy's conduct was deliberate or reckless, Senisais' allegations, liberally construed, are sufficient to survive at this stage of the proceedings. Accordingly, the court denies Duffy's motion to dismiss.
For the foregoing reasons the court denies defendants' motions to dismiss. The court further appoints David A. Rammelt of Freeborn & Peters, 311 South Wacker Drive, Suite 3000, Chicago, Illinois, 60606, (312) 360-6000, as counsel. This case is set for a status hearing on November 6, 1996 at 9:00 a.m. Counsel is directed to appear at the status hearing and indicate his intention to stand on Senisais' original amended complaint or file a new amended complaint at that time after consulting with plaintiff.
Robert W. Gettleman
United States District Judge
DATE: September 26, 1996