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HIGGINS v. CORRECTIONAL MED. SERVS. OF ILLINOIS

July 1, 1998

PATRICK HIGGINS, Plaintiff,
v.
CORRECTIONAL MEDICAL SERVICES OF ILLINOIS, INC., et al., Defendants.



The opinion of the court was delivered by: KEYS

MEMORANDUM OPINION AND ORDER

 This matter comes before the Court on Defendant's Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Defendant's motion is granted.

 BACKGROUND

 A. Facts

 On June 14, 1994, Plaintiff Patrick Higgins was brought to the Kane County Correctional Center ("Kane County") after being arrested the previous day. (Plaintiff's Local Rule 12(N)(3)(a) Response to Defendant's Rule 12(M) Statement of Uncontested Facts *fn1" [12(N)(3)(a)] P 1.) After a preliminary hearing on June 16, 1994, Mr. Higgins was handcuffed for transport back to Kane County. (Id.; Higgins Dep. 37-38.) The guards moved Mr. Higgins' arms in a wide circular motion from over his head to behind his lower back, where his wrists were secured with the handcuffs. (12(N)(3)(a) P 2.) Mr. Higgins contends that he suffered some sort of injury to his left shoulder at this point. *fn2" (Id.)

 On June 19, 1994, Mr. Higgins awoke around 6:00 a.m. and realized that his shoulder had "popped out." (12(M) PP 3, 4.) Mr. Higgins moved from his cell to the day room and attempted, personally and with the assistance of other prisoners, to contact a guard to take him to the infirmary. (12(N)(3)(a) P 7.) Because the guards would only periodically check the day room, and then only by quickly walking through a bulletproof plexiglass tunnel, it was difficult for Mr. Higgins to alert a guard of his condition. (Id.) More than eight hours after he awoke, Mr. Higgins gained the attention of one of the guards, and was escorted to the infirmary around 2:40 p.m. (Id.; 12(M) P 7.)

 At the infirmary, Mr. Higgins saw Defendant Nurse Julia Brown. (12(M) P 8.) He informed Nurse Brown that he "had dislocated [his] shoulder and [his] shoulder popped out of place or something like that, and [he] needed to go to the emergency room and have it reset." (12(M) P 11; Higgins Dep. 55.) Nurse Brown took his statement and asked Mr. Higgins to open his shirt so she could visually examine his shoulder. (12(M) P 11; 12(N)(3)(a) P 11.) Mr. Higgins cooperated and Nurse Brown visually inspected his shoulder. (12(N)(3)(a) P 11.) Nurse Brown did not record her visual observations. She then attempted to palpate the shoulder, but Mr. Higgins adamantly refused, stating that he "didn't care if the doctor or the president came, they weren't going to be poking that shoulder the way it felt." (12(M) P 11.) Nurse Brown informed Mr. Higgins that, in any case, they had twenty-four hours to reset breaks and dislocations, placed him on the doctor's call list for the next day, and offered him some Tylenol for the pain. (12(M) P 12; 12(N)(3)(a) P 12; 12(N)(3)(b) P 9.) Mr. Higgins declined the Tylenol and walked back to his cell on his own accord. (12(M) P 12.)

 Mr. Higgins returned to the infirmary shortly thereafter, around 4:00 p.m. that same day, and saw Defendant Nurse Karen Botello. (12(M) P 17.) Following department procedure, Nurse Botello took down his history, and noted that his left shoulder was "forward and lower than right." (12(N)(3)(a) P 17.) She testified that Mr. Higgins could walk and talk normally, his appearance (with the exception of the left shoulder) was normal, and he exhibited no signs of extreme or severe pain. (12(M) P 17.) He merely stood there, favoring one shoulder (Id.), insisting that she call her "boss" so he could tell him that he needed to go to the hospital. (Higgins Dep. 71-72.) Nurse Botello offered Mr. Higgins some Tylenol, which he refused because it was "like throwing a cup of water on a fire." (12(N)(3)(a) P 17.) It appears that Mr. Higgins left at this point.

 Because of Mr. Higgins' insistence, Nurse Botello called her supervisor sometime around 5:00 p.m. (12(M) P 17; Higgins Dep. 71.) The content of that conversation is unknown. Around the same time, Mr. Higgins returned to the infirmary, again seeking treatment for his shoulder. (12(N)(3)(a) P 17.) Nurse Botello arranged for Mr. Higgins' transfer to the infirmary so that he could be observed overnight, and also because Mr. Higgins refused to leave until he saw a doctor. (Id. at P 18.) To determine if there was any nerve or vascular damage in the affected arm, she checked his pulse and sensation. (12(M) P 18.) Everything was normal. (Id.) Nurse Botello testified at her deposition that Mr. Higgins was still behaving normally (with the exception of his persistent requests to see a doctor or to be taken to a hospital). (Id.) Mr. Higgins sat in a chair, as all the beds were occupied and he did not want to lie on the floor. (Id.; 12(N)(3)(a) P 18.) At 9:00 p.m. Mr. Higgins approached Nurse Botello and asked for some Tylenol, which was given to him. (12(N)(3)(a) P 17.) At each of these times, Nurse Botello made notes in Mr. Higgins' file, and each note indicated that his shoulder was "forward and lower than right." (Id.)

 Nurse Botello went off duty shortly after midnight and left the infirmary. (Higgins Dep. 82.) Mr. Higgins does not specifically recall her leaving. (Higgins Dep. 82.) During the night, he periodically fell asleep. (Id. at 80.)

 The next morning, June 20, 1994, Defendant Dr. Gerald Cerniak arrived in the infirmary to perform his standard sick call. *fn3" Dr. Cerniak's notes indicate that Mr. Higgins would not allow him to examine the shoulder. (12(M) P 24.) Mr. Higgins disagrees with this, claiming that he was so happy to see a doctor that he would have allowed him to do anything. (12(N)(3)(b) P 15.) However, he cannot remember whether Dr. Cerniak attempted to physically examine his shoulder. (Id.) Dr. Cerniak prescribed Ibuprofen for the pain and restricted Mr. Higgins' activity so that no further injury would occur, and so that he could monitor Mr. Higgins' progress and determine exactly what the problem was. (12(M) P 27; Cerniak Dep. 20-21.)

 After this, it is unclear what Mr. Higgins did for the rest of his stay at Kane County. After seeing Dr. Cerniak, he did undergo a psychological evaluation from jail psychologist Kris Metcalf, who testified that he saw nothing wrong with Mr. Higgins' shoulder. (12(M) PP 28-29.) That night, Mr. Higgins fell asleep and awoke the next morning with a normal shoulder. (12(M) P 40.)

 B. Defendants

 1. Nurse Brown

 Nurse Brown has been a Licensed Practical Nurse since 1966, and was employed by Kane County, as well as Defendant Correctional Medical Services of Illinois, Inc. ("CMS"), on June 19, 1994. (12(M) P 8.) She testified that her role was to handle non-serious medical needs such as nosebleeds, headaches, and other ailments of that sort. (Id.) For more serious medical needs, she would provide immediate treatment and place the patient on the doctor's list for the next day. (Id.) In the event of an emergency, it was her understanding that she was to contact either a CMS doctor or the Medical Supervisor, then send the patient to the hospital upon supervisory approval. (12(N)(3)(a) P 8.) Nurse Brown is aware of her duties as a Licenced Practical Nurse, and recognizes that, with or without approval, she risks losing her license if she denies emergency medical care when she thought it was necessary. (12(M) P 9.) Nurse Brown never had occasion to transfer an inmate to the hospital. (Id.)

 Nurse Brown testified that it was her understanding that the objective signs of a dislocated shoulder include "bones sticking up," sweating, discoloration of the face, swelling around the affected area, and "so much pain it is going to show on [the patient's] face." (12(M) P 10.) Nurse Brown testified that, based upon her observations of Mr. Higgins and his refusal to permit palpation, she did not believe Mr. Higgins to have a dislocated shoulder. (12(M) P 12.)

 2. Nurse Botello

 Nurse Botello is a Registered Nurse who was employed by Kane County and CMS on June 19, 1994. (12(M) P 14.) She testified that her standard procedure in dealing with patients was to first listen to the patient's complaint and then perform a nursing assessment. (Id. at P 15.) The results of that assessment would determine the treatment she would provide. (Id.) If the condition was simple enough and it was permissible for her to treat it, she would do so. (Id.) If the patient required immediate attention, she would contact the doctor on call. (Id.) If the patient required emergency attention, or was in severe pain, she would have the patient transferred to the hospital's emergency room and call the doctor to inform him of the patient's status. (Id.) It is not her understanding that she was required to seek supervisory approval before transferring patients to the hospital. (Botello Dep. 26.) Only once did she ever transfer a patient to the emergency room during her three-year tenure with CMS and Kane County. (12(N)(3)(a) P 15.)

 Nurse Botello testified that it was her understanding that every case of a dislocated shoulder would be presented with the symptoms of "pain, swelling and an obvious deformity to the shoulder." (12(M) P 16.) She would also look for other indices, such as sweating, inability to speak or walk normally (Id. at P 17), reduced or absent pulse, and reduced or absent sensation in the affected arm. (12(M) P 18.) Based upon her observations and physical examinations *fn4" of Mr. Higgins, Nurse Botello concluded that Mr. Higgins was not suffering from a dislocated shoulder, and, therefore, did not need to be sent to the emergency room. (Id. at P 19.)

 3. Dr. Cerniak

 Dr. Cerniak is a board-certified general surgeon who was employed by Kane County and CMS on June 20, 1994. (12(M) P 20.) Dr. Cerniak has a great deal of experience treating shoulder ailments, including the treatment of over one hundred dislocations in his thirty years as a physician. (Id.)

 Dr. Cerniak has testified that he understands the objective indices of a dislocated shoulder to vary, depending upon which type of dislocation is present, but one sign is a "mass production [ sic ]" visibly sticking out of the shoulder area. (12(M) P 23; Cerniak Dep. 26.) Dr. Cerniak is unable to diagnose a shoulder dislocation without examining the patient. (12(M) P 23.) His preferred examination is to first take a history from the patient, to discover the problem and the cause; visually examine the patient, checking for symmetry between the shoulders; and finally, physically examine the patient, first palpating the affected area to find bruising, swelling, and bone location, then (if possible) carefully moving the arm to test the patient's range of motion. (12(M) PP 22-23.) Only after all of this is done is Dr. Cerniak able to make a diagnosis. (Id. at P 23.) Dr. Cerniak has no independent recollection of his encounter with Mr. Higgins, but his notes indicate that Mr. Higgins would not permit Dr. Cerniak to examine his shoulder. (Id. at P 24). ...


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