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Osbey v. Health Professionals Ltd.

January 22, 2009


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

Order Granting Summary Judgment

The plaintiff filed this case pro se, while incarcerated in the Illinois Department of Corrections. He alleged that he suffered from a life-threatening infection in his leg that the defendants refused to treat effectively through surgery and referral to an infectious disease specialist. In April 2007, James P. Baker, of the law firm Baker, Baker and Krajewski, accepted appointment as pro bono counsel. The court thanks Mr. Baker for his professionalism and his pro bono service.

The case is now before the court on the defendants' motions for summary judgment. For the reasons below, the court concludes that, though Plaintiff had serious medical needs, no inference arises on this record of deliberate indifference. Summary judgment will therefore be granted to the defendants.

Undisputed Facts

Many of the facts below are adopted essentially verbatim from the medical defendants' proposed facts, to the extent not disputed by the plaintiff.

1. Plaintiff's problems arise from a gunshot wound he suffered in 1992.

2. At the end of 2002, the Plaintiff was charged with selling drugs and incarcerated at the Cook County Jail.

3. Plaintiff first noticed an open sore on his left knee in January of 2003 while he was incarcerated at the Cook County Jail. Plaintiff was treated at the Cermak Hospital and was referred to Strogers Hospital for surgery. During that surgery, a rod was removed from the Plaintiff's left leg and replaced with an antibiotic rod.

4. Plaintiff was transferred from the Cook County Jail to the Dixon Correctional Center at some point in 2003. While at Dixon, the Plaintiff again noticed drainage coming back in his left leg.

5. Plaintiff was transferred to the Lawrence Correctional Center in July of 2003. Defendant Rosalina Gonzales examined Mr. Osbey on that same day. She noted that Plaintiff was in a wheelchair and had two open sores and drainage on his left thigh. She ordered Plaintiff be allowed a wheelchair, and also ordered that the sores be cleaned with saline solution and antibiotic ointment be applied twice daily. She also ordered continued treatment for Plaintiff's seizures. The treatment of Plaintiff's seizures are not at issue in this case.

6. Dr. Rosalina Gonzales saw Plaintiff twice in August 2003. She ordered his placement in an ADA cell and a shower chair. She ordered a continuation of the daily cleansing, antibiotic ointment, and dressing changes. She ordered other medical treatment that is not relevant to Plaintiff's leg.

7. Dr. Rosalina Gonzales next followed up with the Plaintiff on September 3, 2003. On this date, Plaintiff also was able to walk in the parallel bars. She prescribed physical therapy for the Plaintiff in order to attempt to gain some strength in his legs.

8. Dr. Rosalina Gonzales next saw the Plaintiff on December 16, 2003. On this date, Dr. Rosalina Gonzales saw the Plaintiff because he had been refusing the medication she had prescribed him. He told her he no longer needed to take the Lasix or the potassium chloride because his leg was not swelling anymore because he had changed his diet. She discontinued the medicine and noted the Plaintiff's ability to walk up and down four steps.

9. Around December 2003, Mr. Osbey was transferred from Lawrence Correctional Center to the West Side Work Release Center. While at the Center, Plaintiff was being treated at Strogers Hospital in Chicago, Illinois, for continued problems with his leg. The physicians at the Strogers Hospital performed tests on his left leg and set him up for another surgery to take out the hardware in his leg.

10. Plaintiff was receiving blood work at Strogers Hospital for the surgery when he failed to call in as required by his parole release terms. He tried to explain, but was answered with threats of re-incarceration. Fearing incarceration, Plaintiff did not return to the West Side Work Release Center. For the next three months, he did not see a physician for fear of being caught. Around July 2004, Plaintiff was arrested and sent back to the Lawrence Correctional Center for violating his parole.

11. Dr. Rosalina Gonzales treated Plaintiff at Lawrence on his reincarceration. On July 22, 2004, Dr. Rosalina Gonzales ordered an X-ray of Plaintiff's left leg and a chest x-ray. She ordered the Plaintiff's left thigh be cleaned with normal saline solution and have triple anti-biotic ointment applied daily for two weeks. She ordered him be placed in an ADA cell and given a cushion for his wheelchair. She also authorized Plaintiff to have his wheelchair indefinitely.

12. Plaintiff's left hip was X-rayed on July 23, 2004. The radiologist noted that the x-ray was suspicious for chronic osteomyelitis.

13. Dr. Rosalina Gonzales saw the plaintiff several times in August and September 2004, continuing the treatment of topical and oral antibiotics, cleansing with saline solution and dressing changes. Various amounts of drainage were noted over this time period. Intermittently, Plaintiff refused to take his oral antibiotics and allow the dressing changes because he did not believe it was working. He made repeated requests for surgery. In September 2004, he had a large amount of bloody drainage from his leg, and, later in September, copious amounts of yellow drainage, along with multiple new sores. Plaintiff still refused to take his oral antibiotic.

14, Defendant Nurse Hollingsworth saw Plaintiff in July, August and September 2004, to cleanse Plaintiff's sores, apply antibiotic ointment, and change the dressing.

15. Dr. Gonzales ordered another x-ray in late September. The x-ray report indicated no fractures or osteoblastic/osteolytic lesions. Dr. Gonzales ordered daily baths and continued the same treatment plan. She saw Plaintiff several times in October and November 2004, noting improvement and minimal drainage. She ordered a complete blood count, but Plaintiff refused. Plaintiff also refused several times to have his dressing changed. Plaintiff asserts that Dr. Gonzales told him in late September that he might need surgery. From late September through October 2004, Plaintiff did take his medication consistently and allowed his dressing to be changed. The would appeared to get better but then, according to Plaintiff, got worse. In December 2004 Plaintiff refused medical treatment. Dr. Rosalina Gonzalez continued to order the treatment plan anyway, though Plaintiff refused.

16. Dr. Rosalina Gonzalez stopped working for Lawrence Correctional Center in or around January 2005. She did see Plaintiff in December 2005 and January 2006 at Pinckneyville Correctional Center, at which time she ordered Cipro and the usual treatment plan.

17. Between November of 2004 and January of 2005, Plaintiff asserts that his left leg worsened and the wound continued to ooze large amounts of pus and blood. Plaintiff complained of pain and swelling in his left leg and asked to see a specialist.

18. Defendant Dr. Julien, the Medical Director at Lawrence Correctional Center during part of the relevant time, does not recall treating Plaintiff at Lawrence Correctional Center. Dr. Julien has only three medical notes regarding Plaintiff, with the only relevant one written in April 2005, when he referred Plaintiff to orthopedic surgeon Dr. Gray. While Dr. Julien was Medical Director at Lawrence Correctional Center, Plaintiff was provided with similar care as what he had been receiving before Dr. Julien was the Medical Director.

19. Defendant Maggie Brian was the Healthcare Unit Administrator at Lawrence while Osbey was incarcerated at that facility. On several occasions, Osbey contacted Brian and asked for assistance in getting outside medical treatment from a specialist for the infection in his leg. Brian responded to Osbey that he was receiving adequate medical treatment. Brian saw the condition of Osbey's leg and observed the medical staff draining the wound on one occasion.

20. Defendant Jason Garnett was the chief administrative officer at Lawrence during Osbey's incarceration at that facility. Garnett saw Osbey's leg when it was draining blood and pus. Osbey asked Garnett to assist him in getting better medical treatment for his leg because the infection was not getting better. Garnett informed Osbey that there was nothing he could do for Osbey because he was already being treated by the prison medical staff.

21. Defendant Nurse Hollingsworth saw the Plaintiff several times in March and April 2005. She noted Plaintiff's continued draining. An inference arises from the medical records that the draining had gotten worse.

22. Around 4:00 a.m. on March 30, 2005 an abscess in Plaintiff's left leg burst and oozed pus and blood. Osbey showed Warden Garnett that his leg was oozing pus and blood and asked for help to see other doctors. Plaintiff was frightened for his health and asked to be seen in the Crisis Center, believing it was a medical emergency.

23. According to Plaintiff (whose version the court accepts on summary judgment), Defendant Nurse Hollingsworth came to see Plaintiff after he declared a crisis and told him there was no medical emergency, and that Plaintiff could wait until morning. On March 31, 2005, Hollingsworth cleaned his leg and changed his dressing.

24. Defendant Waltz wrote Plaintiff a ticket, charging him with giving false information to an employee, because Plaintiff had improperly called a "crisis" when none existed. The disciplinary ticket was expunged.

25. Between March and May of 2005 Osbey's leg remained infected and the course of treatment did not change. Throughout that time the physicians that saw him in the Department of Corrections continued to treat him with antibiotics and dressing changes.

26. In or around April 2005, Dr. Julien was replaced by Dr. Fatoki as the Medical Director at the Lawrence Correctional Center. Plaintiff has no complaints ...

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