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O'Farrell v. Funk

September 21, 2006

THOMAS O'FARRELL, PLAINTIFF,
v.
DR. ARTHUR FUNK AND NURSE PEGGY SHIPLEY, DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

ORDER

Before the court are the defendants' motion to dismiss or in the alternate for summary judgment [25], the plaintiff's response [40], the defendants' reply to the plaintiff's response [43] and the plaintiff's response to defendants' reply [44]. If matters beyond the pleadings are considered, the court must treat a motion to dismiss as one for summary judgment and give adequate notice to the non-movant. See Ribondo v. United Airlines, Inc., 200 F.3d 507, 510 (7th Cir. 1999); Aviles v. Cornell Forge Co. , 183 F.3d 598, 604 (7th Cir. 1999). The court notes that the plaintiff was provided notice of the defendants' summary judgment motion when the defendants mailed a copy of said motion to him, and via the clerk of the court's January 9, 2006 letter to the plaintiff notifying him that the motion had been filed and advising him that his response was due within 21 days.

Standard

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 a judgment as a matter of law." Fed. R. Civ. P.56(c); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). Further, this burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If such a showing is made, the burden shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Outlaw, 259 F.3d at 837. A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). The non-movant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence. Chemsource. Inc. v. Hub Group. Inc., 106 F. .3d 1358, 1361 (7th Cir. 1997). Credibility questions "defeat summary judgment only '[w]here an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility.'" Outlaw, 259 F.3d at 838, citing Advisory Committee Notes, 1963 Amendment to Fed. R. Civ. P. 56(e)(other citations omitted). While the facts must be viewed in the light most favorable to the party opposing summary judgment, this means no more than that "the party opposing a summary judgment motion is to be given the benefit of all reasonable doubts and inferences in determining whether a genuine issue exists that justifies proceeding to trial." "A court never is required to accept evidence that is inherently incredible or 'too incredible to be accepted by reasonable minds.'" "There must be a degree of substantiality to the evidence proffered in opposition to a summary judgment motion if the motion is to be defeated." Agosto v. Immigration and Naturalization Service, 436 US. 748, 772-773, 98 S.Ct 2081, 2095, 56 L..Ed.2d 677 (U.S. 1978) (Powell &Rehnquist, dissent), citing 10 C Wright & A. Miller, Federal Practice & Procedure § 2725, p.512 (1973) Fed. Rule Civ. Pro. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no 'genuine' issue for trial." Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988). A "metaphysical doubt" will not suffice. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Disputed facts are material only if they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, *247-248, 106 S.Ct. 2505, 2510 (1986).

Background

The plaintiff, Thomas O'Farrell is a prisoner incarcerated within the Illinois Department of Corrections. He brings his lawsuit pursuant to 42 U.S.C. 1983. He sues Dr. Arthur Funk, alleging his failure to provide him with disc surgery on his cervical spine in a timely fashion constituted cruel and unusual punishment in violation of the Eighth Amendment. Nurse Peggy Shipley is sued because she allegedly refused to end cervical traction sessions though the plaintiff pleaded with her to stop because it was painful.

The defendants argue that Mr. O'Farrell received constant attention and appropriate treatment. Defendants further argue that the plaintiff sues because he disagreed with Dr. Funk's treatment plan, and wanted him to provide care as Mr. O'Farrell dictated. Further, the defendants argue that this case presents a classic example of a suit by an inmate who receives treatment, but sues because his physicians do not provide him with the specific treatment he desires. Further, the defendants argue that the allegation against Nurse Shipley is without support in the records and fails to find support even among the facts pled in the plaintiff's amended complaint. The defendants move for summary judgment in their favor arguing that the credible facts of record offered in support of their motion show that Mr. O'Farrell received all due and proper care and that his assertions to the contrary are incorrect. The defendants assert that there are no genuine issue of material fact and defendants are entitled to judgment as a matter of law.

Statement of Undisputed Facts*fn1

1. Mr. O'Farrell began his incarceration in 1995. His medical history included complaints of chronic low back pain and migraine headaches, but he was otherwise generally healthy. The first time he complained of any symptoms in his upper back was an urgent care visit to the infirmary on November 11, 2002. He was seen first by Peggy Shipley, R.N. (Exh. 11 A, p. 1).

2. He complained of pain in his upper back that radiated into his shoulder and down to his hip. Shipley had Mr. O'Farrell seen by Dr. Trainor, who noted that the plaintiff complained of pain below the right scapula. There was no specific injury and it had begun the night before while he was sleeping. Apart from some point tenderness over the scapula, his physicalexam was grossly normal. Dr. Trainor diagnosed it as a muscle strain and ordered a medical lay-in for that day, plus 600 mg of Motrin. (Exh. A, p. 2).

3.Mr. O'Farrell did not stay in the health care unit and he signed a refusal of treatment form. (Exh. A, pp. 3-4).

4. He did not again complain of any problems until June 1, 2003. He said that he had a pinching sensation in his right shoulder blade and tingling in his right arm. This had been present for a week. Dr. Dennis Larson found him non-tender to palpation and diagnosed him with neck, back and right upper extremity discomfort. Dr. Larson ordered 600 mg of Motrin and told O'Farrell to avoid strain. (Exh. A, pp. 5-6).

5. On June 19, 2003, O'Farrell complained that he still had upper back, neck and shoulder pain, and that the Motrin was not providing him with relief. He was examined by a member of the medical staff, who found no swelling and good range of motion. He was told to report to sick call. (Exh. A, p. 7).

6. He did so three days later, on June 22, 2003, and was seen by Dr. Larson. Mr. O'Farrell complained of a numbing sensation in his mid-upper back. Pain was "present all the time," and he had a spasm that "brings tears to him." He had a history of surgery and a gunshot wound to his right shoulder. He had good range of motion in his neck and arms, and no tenderness. Dr. Lason ordered X-Rays of his chest and neck. (Exh. A, pp. 8-9). These were taken June 25, 2003. (Exh. A, p. 273).

7. A month later, on July 24, 2003, Mr. O'Farrell complained to a corrections med tech that he had sharp pains that had been there for a long time, which he thought might be from a pinched nerve in his right shoulder related to the gunshot wound. He said he had been previously seen "by numerous doctors," and nothing had helped. He was put on the sick call list. (Exh.A, pp. 10-11).

8. He was seen the same day by Dr. Larson. Dr. Larson noted that he complained of episodic right parathoracic pain. It was sharp, and unrelated to certain movements or breathing. He had tenderness in his back when hyperextending it, but full range of motion He noted that the chest X-Ray had been negative and diagnosed a cervical strain and degenerative joint disease at C5-C6. Dr. Larson put him on Robaxin 750 m t. i.d. for 30 days (Robaxin is a muscle relaxant). (Exh. A, pp. 1 1-1 2).

9. He did not seek treatment again for a month. He had an urgent care visit on August 23, 2003. He told the nurse that since morning, he felt shooting pain from his shoulder down into his right hand. He had full range of motion but complained this was only with great pain. He was then seen by Dr. Kevin Smith, who noted that he awoke this morning with right-sided neck pain radiating down into his hand. The X-Ray of his neck revealed "an osteophyte" and degeneration at C5-6. On examination he was in moderate distress with tenderness in his right lateral neck on hyperextension and bilateral flexion of the neck. His arms weresymmetrical with no muscle atrophy. He was diagnosed with cervical pain with a radicular component. He was prescribed Toradol (an injected non-steroidal anti-inflammatory) and Ativan (a sedative). In an addendum written 90 minutes later, Dr. Smith noted that Mr. O'Farrell improved after being administered the medications. He further ordered a medical lay-in for five days, and put him on Motrin, Robaxin, and Neurontin (used to treat neuropathic pain). Last, he referred Mr. O'Farrell to the Medical Director for follow-up of his radiculopathy and possible diagnostic testing. (Exh. A, pp. 13-1 5).

10. Defendant Dr Arthur Funk, the Medical Director, first saw Mr. O'Farrell three days later, on August 26, 2003. Mr. O'Farrell told him that beginning on August 23, he developed severe pain in his right neck and shoulder radiating down his right arm. He had numbness in his first, second, and third fingers but no weakness. He had a history of multiple surgeries for rotator cuff repair on the right shoulder. He appeared to be in mild discomfort and held his neck rigidly. His physical exam was normal except that the range of motion in his neck was limited by pain. He assessed him with C5-6 related radiculopathy on the right side. Dr. Funk then entered multiple orders: ( I ) a 2 week medical lay-in, (2) a prednisone stat pack starting at 60 mg for the first day then dropping by 10 mg the next day, (3)an X-Ray of his cervical spine the next day, and (4) follow-up on sick call in two weeks. He also explained the diagnosis to Mr. O'Farrell and told him under what circumstances he should come back to medical sooner than scheduled. (Exh. A, pp. 16-1 7).

11. The X-Ray was taken on Aug. 29, 2003. (Exh. A, p. 274).

12. On September 7, O'Farrell was seen by Dr. Ngu. He complained of back and posterior neck pain radiating to his arm and related a history of C5-C6 degenerative changes. Dr. Ngu noted he appeared to be in distress as he related his vital signs and symptoms. He had limited range of motion of his right shoulder secondary to the pain. Dr. Ngu diagnosed cervical radiculopathy and ordered a 5 day lay-in, and prescribed Toradol and Indocin. He also referred the case to Medical Director Dr. Funk for follow-up. (Exh. A, p. 18).

13. Before that happened, on September 11, 2003, he returned to medical through sick call and was again seen by Dr. Smith. He reported some relief with pain meds but not complete relief. He had some limitations to his range of neck motion with moderate pain. He had some loss of grip strength in his right hand. There was no atrophy, however, and he was neurologically intact. He was given an injection of Toradol. Dr. Smith contacted Dr. Funk to further discuss Mr. O'Farrell's case. They decided to admit him to the medical department and additionally administer a Prednisone stat pack of 100 mg, and ordered the narcotic pain reliever Darvocet, Robaxin, and Zantac. (Exh. A, pp. 19-20).

14. He remained in the health care unit for that day and into the next day. Dr. Funk saw him on the 12th. Mr. O'Farrell told him that the pain meds were making it tolerable but he was still hurting. He also said he wanted to go back to his cell since he would be doing the same thing there that he was in the health care unit. Dr. Funk examined him and allowed him to be discharged to his cell. He ordered that he report for the next sick call. (Exh. A, pp. 21-27).

15. He was next treated on September 18, 2003. Dr. Smith noted he had neck pain and reduced range of motion. He still had normal reflexes and no atrophy but some decreased hand strength on the right. Dr. Smith reassured him, ordered that he be on medical lay-in for a week, and prescribed Motrin and Robaxin. (Exh. A, p. 28).

16. Later that day he was seen by Dr Funk. He told Dr. Funk the pain had gone from 6 out of 10 to "indescribable" pain in his right elbow and right shoulder with movement. Dr. Funk noted that he'd previously been in the infirmary but refused to stay there. He also noted that while plaintiff was angry and hostile, he did not appear to be in acute distress. He measured the circumferences of Mr. O'Farrell's upper arms and forearms and found them symmetric. He noticed no loss of hand strength, and full biceps strength. There was a questionable loss of tricep strength. There was no history of recent trauma. Dr. Funk ordered that he be admitted to the infirmary and not released except under orders. His current medication regimen was to be continued and he was given additional Darvocet. He was educated in detail regarding the source of his pain and the plan of treatment which was being pursued. (Exh. A, pp. 29-31).

17. Mr. O'Farrell was admitted to the infirmary and kept under constant observation for the next 10 days. (Exh. A, pp. 11-50).

18. At the time of his admission he declined a nurse's offer of Darvocet. (Exh. A, p. 34).

19. About 2 pmthe next day he asked for the Darvocet and talked to Dr. Bulatovic. He said the pain was still there but that the Darvocet took off "the edge." (Exh. A, pp. 35-36).

20. While he was in the infirmary, when he asked for pain medication, he was given more Darvocet. (Exh. A,, pp. 40,42,44,45).

21. On Sept. 23, 2003, he saw Dr. Funk, who noted that the patient had been admitted for narcotic pain control. He hadn't asked for any pain medicine for over a day. The infirmary space was also needed for another patient. Dr. Funk discharged him on the same medication orders, less the Darvocet. He told Mr. O'Farrell to return at noon the next day. He also noted that he had scheduled him for an MRI on Sept. 25. (Exh. A, pp. 48-50).

22. Dr. Funk saw him again the next day at noon. Mr. O'Farrell said he thought the Darvocet "messed [him] up;" he was constipated and dizzy. His pain was an "8." He was examined and exhibited the same signs and symptoms he had previously. Dr. Funk's diagnosis continued to be radicular pain pobably secondary to a cervical disc problem. He discontinued his narcotic Darvocet. The plaintiff signed a refusal of treatment form indicating he refused to be admitted to the infirmary. He was given an extended medical lay-in of four weeks and reminded of his MRI the next day. (Exh. A, pp. 51-52).

23. The MRI was performed on September 26, 2003. (Exh. A, pp. 275-276).

24. He was next seen Oct. 1, 2001, for follow-up on his MRI. Mr. O'Farrell explained his pain began in his right lower neck and extended along his shoulder into his arm. He had numbness of all his right hand fingers. He said his pain hadn't increased or decreased in the last week. Dr. Funk noted that he held his neck rigidly but did not appear to be in significant pain. He wrote that Mr. O'Farrell complained of pain with minimal rotation of his head. He measured his arms, which still showed little difference between sides. Dr. Funk noted that the MRI had shown some degenerative changes but there was no cord or nerve root compression, which would be expected if he had radicular pain and numbness. In light of that finding he took him off Neurontin, which was no longer indicated, and continued his Robaxin and Motrin. He also gave him range of motion exercises to perform on his own, and ordered him to present to the orthopedic clinic on October 14, 2003, so he could be examined by an orthopedic surgeon who rounded in the facility. (Exh. A, pp. 53-55).

25. On Oct. 14, Mr. O'Farrell was seen by Dr. Upendra Kumar Sinha, an orthopedic surgeon from Streator. Dr. Sinha noted the inmate complained of cervical pain and referred pain into the right arm. His symptoms had increased over August. He had restricted, painful range of motion in his cervical spine. He had a straightening of the normal curvature of the cervical spine (kypllosis), and a significant loss of grip and pinch strength in his right arm. He noted the MRI showed changes at multiple levels. His impression was cervical spine osteoarthritis at C5-6 and C6-7, and cervical spondylitis (inflammation). He issued several orders. First, a cervical traction kit was to be used. Next, he was to have an EMG (electromyelogram) of his right upper arm. Last, he was to report back at the next ortho clinic. (Exh. A, pp. 55-56).

26. The plaintiff's October 16, 2003 medical records show that an order for a traction kit was submitted and a request for an EMG was made. (Exh. A pp. 57, 278-279).

27 . Mr. O'Farrell was taken to Decatur Memorial Hospital on Oct. 22, 2003, where the EMG was performed. When he returned, he was seen by a nurse, complaining of severe neck pain; a "9". Dr. Larson was consulted, who ordered Motrin and Robaxin and a two week medical lay-in. (Exh. A, p. 58).

28. Dr. Funk noted on the chart the same day that he spoke with Dr. Sinha. He clarified the traction order: Mr. O'Farrell was to be given 6-8 lbs of traction for 20 minutes twice a day for an initial period of 4-6 weeks. (Exh. A, p. 59).

29. The next orthopedic clinic was only a few days later, and Mr O'Farrell was seen again by Dr. Sinha on Oct 28 . He again noted that plaintiff had restricted, painful cervical range of motion and decreased grip and pinch strength on the right side. It was also noted that Dr. Funk discussed the results of the EMG with Dr. Sinha. (Exh. A, p. 60).

30. The EMG showed evidence of right C6 radiculopathy. (Exh. A, pp. 258-259).

31. On November 1, 2003, a CMT saw the plaintiff, who complained of "nerve damage in his neck." His medications were renewed. He showed up to sick call the next day, complaining of severe neck pain and stiffness. He was seen and evaluated by a CMT, who noted he was under the care of an orthopedic surgeon. He ordered Motrin and Robaxin and a medical lay-in of 2 weeks. (Exh. A, p. 61).

32. He was seen by another M.D., Dr Suresh Vade, on November 16, 2003. The doctor noted that Mr. O'Fanell had been seen by Dr. Sinha and Dr. Funk and that they had ordered and completed an EMG . He also noted that a consult with a neurosurgeon had been ordered. Mr. O'Farrell's pain medications were renewed. (Exh. A, p. 62).

33. In a report of Mr. O'Farrell's psychiatric progress on November 23, 2003. Regarding his current health status, Dr. Andrew Kowalski wrote:

SUBJECTIVE DATA: The patient's only complaint is chronic neck pain. According to the patient he has had all the studies, he has met with the appropriate health care professional, and now he is simply waiting for cervical neck surgery to occur. The patient is dealing with hisdaily pain fairly well.

(Exh. A, p. 272).

34. On November 25, 2003, Mr O'Farrell was sent out to see a neurosurgeon, Dr. Marie Long. On her physical exam, she noted that "any attempt at moving his neck in any direction is accompanied by a red face, venous engorgement, and vocalization." She noted that she found no wasting or atrophy in any of his muscle groups, but giveaway weakness in all muscles of his right arm. His reflexes were easily obtainable and he had some loss of sensation in his fingers. Dr. Long noted that the MRI which had been performed was done on an open magnet and was of poor quality. She recommended a repeat MRI on a closed magnet. Her impression began "persistent right arm pain with no definite neurologic deficit today, and with some evidence of pain behavior. . " She noted that she could not continue treating Mr. O'Farrell for insurance reasons (both Mr. O'Farrell's coverage and her own liability insurance) and recommended further follow-up including the closed MRI. (Exh. A, 260-261).

35. Shortly thereafter, Dr. Funk noted on the chart that he'd spoken with Dr. Long. She told him she'd seen no problematic disc at C6 on the MRI but that, according to the EMG, there was "suboptimal outflow" through the nerve. She also told him that Mr. O'Farrell's responses on examination "seemed exaggerated," and his reactions were not consistent with nerve impingement at level C6. (Exh. A, p. 64).

36. On Dec. 4, 2003, plaintiff reported to a CMT complaining of pain from a "pinched nerve." He told the CMT that he wanted Motrin and Robaxin, as they had provided him with relief in the past. He was ordered to report to sick call. (Exh. A, p. 65). Dr. Funk noted on the chart the same day that he had spoken to Dr. Long, who told him it was unlikely she would be able to provide any services in the area in the future and that he may have to seek a consult with someone else. Accordingly, Dr. Funk ordered a referral to University of Illinois Neurosurgery for a CT cervical myelogram and follow-up. (Exh. A, p. 65). Mr. O'Farrell was seen in the prison on Dec. 7, 2003 by Dr. Vade, complaining of spasmodic muscle pain in his arm. Dr. Vade noted the pending consult and renewed his pain medications. (Exh. A, p. 66).

On Dec. 12, Dr. Funk learned that Dr. Long would, indeed, not be providing services in the area. A neurosurgery consult was scheduled with University of lllinois Neurosurgery on 12/22/03 which would include a CT Myelogram. He also directed that copies of the MRI and the EMG results be sent with Mr. O'Farrell when he was sent out for the consult. (Exh. A, p. 67, 283-284).

37. Dr. Funk also made Mr. O'Farrell aware of Dr. Long's inability to treat him. (Exh. A, p. 285).

38. Mr. O'Farrell was seen by a med tech on Dec. 31, 2003, asking for Motrin. His medications had expired, so he was told to report to sick call. (Exh. A, p. 70).

39. He was seen by an M.D. the same day, who examined him. He was in no acute distress and his symptoms and complaints were the same as they had been previously. (Exh. A, pp 71-72). His medications were renewed.

40. On January 7, 2004, Dr. Long's status apparently changed and Dr. Funk was notified that her office would be able to consult and provide care to Mr. O'Farrell. Dr. Funk accordingly ordered another MRI (closed instead of open this time). (Exh. A, pp. 286-287).

41. Dr. Funk also noted that he would see Mr. O'Farrell in his clinic to advise him regarding the test. (Exh. A, p. 73).

42. On Jan. 13, 2004, Mr. O'Farrell was seen by Dr. Funk. He noted that the EMG was positive for right C6 radiculopathy. The open MRI he'd undergone did not show this. Mr. O'Farrell complained that his arm felt like it was "falling asleep," and his entire limb was affected. He complained of pain when his arm was bumped. Dr. Funk noted that Mr. O'Farrell had his head flexed slightly to the right and his right arm pressed closely against his torso. His aims were symmetric and without atrophy. He yelled out in pain when his brachioradialis and triceps reflex was tested. He had no hand atrophy and his hand grasp strength and ranges of motion improved with encouragement. With all these findings, Dr. Funk noted that Mr. O'Farrell's complaints were inconsistent with what the tests had objectively shown. He observed that Mr. O'Farrell appeared to be motivated by secondary gain. Dr. Funk offered Mr. O'Farrell the chance to be admitted to the infirmary for more comprehensive pain control, which Mr. O'Farrell refiused. (Exh. A, p. 288).

43. The closed magnet MRI was already scheduled, and after that he would follow-up with Dr. Long. (Exh. A, pp. 74-76).

44. On Jan. 20, 2004, Mr. O'Farrell was sent out for the closed MRI, and was returned to the prison with the scan. (Exh. A, p. 262).

45. Dr Funk ordered that it be sent to Dr. Long for her follow-up with Mr. O'Farrell. (Exh. A, p. 77).

46. Plaintiff was seen by a CMT and then by a doctor on Jan. 22, asking for pain meds, which he was given. (Exh. A, p. 78).

47. Mr. O'Farrell was to see Dr. Long on Feb. 3, 2004, but the officer who was to transport him called Dr. Funk and said that a snowstorm made travel dangerous and the appointment was rescheduled. (Exh. A, p 79).

48. Mr. O'Farrell was sent to Dr. Long on Feb. 17, 2004. She noted the new closed magnet images were much better. The MRI showed three deficits, at thee vertebral levels in Mr. O'Farrell's neck. There was a bulge at C3-4 which she believed was noncontributory. There was degeneration of the disc at C5-6, which she thought might be causing his neck pain. There was a herniation of the disc at C6-C7 which appeared to be impinging on the nerve root on the right, which she believed consistent with his symptoms. She recorded that she explained to Mr. O'Farrell that these findings did not present any threat of death, paralysis, or any serious disability in the long term. She said that she could perform a C5-6 and C6-7 discectomy and fusion, which she felt had about a 7/10 chance of affecting his pain and a 3/10 chance of having no effect. She explained all the risks attendant to the surgery and noted Mr. O'Farrell wanted the surgery. She then noted she would speak with Dr. Funk about it. (Exh. A, pp. 264-265).

49. On Feb. 23, 2004, Dr. Funk received Dr. Long's consult note, and also spoke with her at length on the phone. Dr. Long's recommendation was to exhaust non-surgical treatment options such as cervical traction and a course of epidural steroids. Mr. O'Farrell would then undergo a repeat EMG and perhaps a CT myelogram and be reevaluated. Dr. Funk accordingly ordered that he be admitted to the infirmary for cervical traction beginning with 5 lbs for 5 to 10 minutes, as ...


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