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Childrous v. Birkel

September 22, 2008


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


This cause is before the court for consideration of the pending motions for summary judgment. [d/e 42, 43, 46, 52].


The plaintiff, a state prisoner filed his initial complaint pursuant to 42 U.S.C. against three defendants at the Pontiac Correctional Center including Medical Technician John Birkel, Officer Cletus Shaw and Medical Director Dr. George Kurian. The plaintiff then filed an amended complaint providing more details about his claims. On April 30, 2007, the court conducted a merit review of the amended complaint and found that the plaintiff had adequately alleged that the defendants were deliberately indifferent to his serious medical condition when they denied or delayed treatment for an asthma condition and an asthma attack. The claim is against the defendants in their individual capacities only.


The following facts are based on the motions for summary judgment and the attached exhibits.

Defendant Cletus Shaw is employed as a Correctional Lieutenant at Pontiac Correctional Center. Defendant John Birkel is employed as a Medical Technician at Pontiac Correctional Center.

Dr. Kurian is a doctor who was employed at the Pontiac Correctional Center from August of 2001 to July 5, 2006. The plaintiff was one of the doctor's patients while he worked at the correctional center.

The plaintiff suffers from chronic asthma and says he has suffered with this condition throughout his life. (Def. Memo, Plain. Depo, p. 70)

On December 1, 1005, Dr. Kurian prescribed a QVAR inhaler and an Albuterol inhaler to the plaintiff for his asthma. The doctor says a QVAR inhaler is "a corticosteroid used to help prevent asthma attacks. QVAR aerosol will not stop an asthma attack one has started, however Mr. Childrous was to inhale on a puff of QVAR by mouth twice daily for five months." (Def. Memo, Kurian Aff., p. 2). The doctor says asthma medication like Albuterol will help stop an asthma attack after it has started. Albuterol helps:

reduce underlying inflammation of the airways and relieve or prevent systematic airway narrowing. Control of inflamation should lead to reduction in airway sensitivity and help prevent airway obstruction. Generally, these treatments are effective in reducing the spasms, opening the airways and giving the plaintiff relief without any further treatment. (Def. Memo, Kurian Aff., p. 1-2).

On February 8, 2006, the plaintiff says he believes he suffered an asthma attack beginning at about noon. (Def. Memo, Plain. Depo, p. 43). In his deposition, the plaintiff was asked to rate the severity of this attack and he said it was around a "3 or 4." (Def. Memo, Plain. Depo, p 74). His condition worsened and when he arrived in the medical unit later in the afternoon, the plaintiff stated it was a "5 or 6." (Def. Memo, Plain. Depo, p. 72) The plaintiff says he has experienced an asthma attack which he would rate a 10 during his lifetime. (Def. Memo, Plain. Depo, p. 72-73).

In his deposition, the plaintiff says he reported his condition to an officer and the officer told him he would contact Medical Technician Birkel. The officer then returned and told the plaintiff that Birkel wanted the plaintiff to lie down and he would feel better. (Def. Memo, Plain. Depo, p. 43). The plaintiff continued to ask for help and the officer contacted Lieutenant Shaw who reported to the plaintiff's cell. The plaintiff told him of his condition. The plaintiff says Shaw told him that he also suffered from asthma and he did not believe the plaintiff was having an attack. Nonetheless, Shaw told the plaintiff he would also contact Birkel, but he could not control whether Birkel would come or not. The plaintiff says this was the end of his contact with Shaw. (Def. Memo, Plain. Depo, p. 44). The plaintiff also says he never saw or spoke with Birkel on February 8, 2006. (Def. Memo, Plain. Depo, p. 45).

The plaintiff says when the next shirt reported for work at about 3:00, another medical technician was called to his cell and the plaintiff was taken to the Urgent Care Clinic around 3:30. The plaintiff complained of feeling short of breath and coughing since the previous afternoon. A registered nurse evaluated the plaintiff and then spoke with Dr. Kurian in the clinic. (Def. Memo, Kurian Aff., p. 2; Plain. Depo, p. 48). The medical record shows the plaintiff's temperature and pulse were slightly above normal which Dr. Kurian says was consistent with his complaints. Dr. Kurian says the plaintiff's vital signs "show that, although Mr. Childrous needed a breathing treatment for his acute asthma condition, he was in no immediate risk of serious harm." (Def. Memo, Kurian Aff., p. 2) The doctor ordered that the plaintiff be treated with "Albuterol using a special breathing machine known as a nebulizer." (Def. Memo, Kurian Aff., p. 3). The doctor told the nurse to continue to monitor the plaintiff and inform him if his condition did not improve.

The medical records show the nurse used three different methods to access the plaintiff's condition after the nebulizer treatment. First, the plaintiff's "oxygen saturation level was well within normal limits and, in fact, nearly perfect at 99%." (Def. Memo, Kurian Aff., p. 4). Second, the plaintiff's peak flow was within a normal expected range. Finally, the nurse listened to the plaintiff's lungs with a stethoscope and noted that his lungs were "clear in all fields." (Def. Memo, Kurian Aff., p. 4) Dr. Kurian says if the plaintiff was still experiencing problems, the nurse would have heard wheezing and other sounds in his lungs.

In other words, the objective tests performed by the registered nurse on Mr. Childrous following the nebulizer treatment that I ordered demonstrate that he was suffering no respiratory distress and that the acute asthma had been relieved. No further treatment was warranted at that time, and Mr. Childrous ...

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