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Antwain Bailey v. the City of Chicago

March 9, 2012

ANTWAIN BAILEY, PLAINTIFF,
v.
THE CITY OF CHICAGO, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

After losing part of his leg to amputation, plaintiff Antwain Bailey ("Bailey") filed suit seeking relief under § 1983 against dozens of defendants. The four remaining defendants--Cook County, Dr. James Kapotas ("Dr. Kapotas"), Barbara Davis ("Davis") and Dr. Yu Yan ("Dr. Yu")--move for summary judgment. For reasons set forth below, the Court grants the motion.

I. Background

Unless otherwise noted, the following facts are undisputed.*fn1

The events that led to Bailey's losing his leg began on August 7, 2006. That night, Bailey drove a motorcycle into a Chicago Police Department squad car and was thrown from the motorcycle onto the cement. When he hit the ground, Bailey's tibia and fibula fractured, broke through his soft tissue and skin and were exposed to the air. The police officers arrested Bailey (for, among other things, possession of a stolen motor vehicle) and transported him to Christ Hospital.

Bailey stayed at Christ Hospital until August 11, 2006. During that time, he received medical treatment for his injuries. For example, on August 7, 2006, Bailey underwent a surgical procedure to irrigate his wound and to insert a metal rod into his tibia from his knee to his ankle. On August 9, 2006, Bailey underwent an irrigation and debridement, which is to say that dead tissue was removed from his wound. The parties dispute whether, at the time of that surgery, evidence of infection was present at the wound site. Before Bailey left Christ Hospital, his leg was placed in a soft wrap and a splint. On August 11, 2006, Christ Hospital discharged Bailey with instructions to take Keflex (an antibiotic), to take a narcotic for pain, to keep his leg dry and elevated, to keep the dressing on until August 16, 2006 and to change the dressing on August 16.

Bailey's next stop was Cermak Health Services ("Cermak"), which is the health-care facility that provides care to Cook County's detainees. All detainees who arrive at Cook County Department of Corrections from an outside hospital stop first at the Cermak emergency room, and Bailey was no exception. At admission, Bailey told the nurse he was having level-ten pain. At admission, medical personnel (their identities are not in the record) reviewed Bailey's records from Christ Hospital and wrote Bailey a prescription for: (1) Keflex, (2) Tylenol 3, (3) Bailey's leg dressing to remain intact until August 16, 2006, and (4) Bailey to be seen by a doctor on August 14, 2006.

Bailey was admitted to Cermak's infirmary. The infirmary is where Cook County houses detainees who need acute care, i.e., individuals who have just left the hospital, need intravenous antibiotics or dialysis or have other special needs. As of August 2006, defendant Dr. Yu was the physician in charge of the infirmary. Dr. Yu was responsible for the treatment of detainees in the infirmary and he checked to see that every patient was receiving adequate care. Dr. Yu was also responsible for deciding when a detainee was ready to be moved to the Residential Treatment Unit ("RTU"--more on that later) or back into the general population.

Bailey stayed in the infirmary until August 15, 2006. During that time, Bailey was given his medication and was examined by medical staff. While at the infirmary, Bailey did not experience any loss of feeling in his leg or any drainage from his wound site.

Dr. Yu examined Bailey on August 14, 2006. On that date, Dr. Yu ordered x-rays and prescribed that Bailey use crutches instead of a wheelchair in order to prevent a blood clot from forming in Bailey's leg. The x-rays showed no swelling, which means there were no signs of infection in Bailey's leg at that time. The next day, Tuesday, August 15, 2006, Dr. Yu discharged Bailey to the RTU. The reason Dr. Yu discharged Bailey to the RTU was that Bailey now required only medication and crutches and, thus, no longer needed the acute care provided by the infirmary. When Bailey was discharged, Dr. Yu prescribed Keflex, Motrin and crutches. Finally, Dr. Yu referred Bailey to the orthopedic clinic for a consultation.

Cermak's orthopedic clinic was staffed (by a physician, a physician's assistant and an orthopedic technician) on Wednesdays and Thursdays. On Wednesdays, the orthopedic clinic was staffed by Dr. Alan Malk and physician's assistant Harry Preskopf. On Thursdays, the orthopedic clinic was staffed by Dr. Kapotas and physician's assistant Davis. On Tuesday, August 15, when Dr. Yu filled out a referral form for Bailey to be seen at the orthopedic clinic, Dr. Yu wrote that the request was "urgent," because Dr. Yu wanted to ensure that Bailey would be seen that week, rather than having to wait until the Wednesday or Thursday of the following week.

Bailey was housed at the RTU from August 15, 2006 until August 31, 2006. The RTU was an area where Cook County housed detainees who needed an intermediate level of medical care. The RTU was a series of large rooms (called tiers), each housing 30 detainees and one correctional officer. Detainees in the RTU were free to move about their tier and the rest of the RTU. In the RTU, detainees saw doctors and physician's assistants by appointment, not every day. During his stay at the RTU, Bailey received medication. None of the remaining individual defendants (Dr. Kapotas, Dr. Yu and Davis) worked in the RTU while Bailey was housed there, and none were responsible for his medical care while he was in the RTU.

Due to Dr. Yu's referral, Bailey was seen in the orthopedic clinic on Wednesday, August 16, 2006. It is undisputed that orthopedic technicians put a hard cast on Bailey's leg. Bailey put forth evidence that Davis helped put on the cast, but defendants put forth evidence that Davis was neither at the clinic on that day nor involved with casting Bailey's leg. Before the hard cast was put on Bailey's leg, the dressing was not changed. It is undisputed that Bailey did not see a physician at the orthopedic clinic on August 16, 2006. A consultation form suggests that Bailey's chart and records were not available at the orthopedic clinic on that date.

After Bailey had been housed at the RTU for about a week, he started to lose feeling in the toes of his injured leg. A couple of days later, he began noticing a smell coming from his wounded leg. Eventually, the smell was, as Bailey described it, "horrible" and like "spoiled meat." Bailey filled out a request to see a doctor but did not see one. Although Bailey was receiving medication, he requested additional medication from the guards. Bailey complained to guards and requested that he be allowed to see a doctor.

Bailey was finally seen by a doctor, Dr. DeFuniak (an attending physician in the RTU), on August 30, 2006. Defendants put forth evidence that Bailey told Dr. DeFuniak that he had gotten his cast wet. Bailey disputes this. Bailey put forth evidence that his cast was wet from discharge from his wound. Either way, Dr. DeFuniak noticed the wet cast and foul odor and referred Bailey to the orthopedic clinic to have the cast removed and the wound looked at.

The next day, when Dr. DeFuniak realized that Bailey had not been seen in the orthopedic clinic, he again referred Bailey to the orthopedic clinic. Later that day (Thursday, August 31, 2006), Dr. Kapotas and Davis saw Bailey in the orthopedic clinic. It is undisputed that that was the first time Dr. Kapotas saw Bailey. The parties dispute whether it was the first time Davis saw Bailey: defendants put forth evidence that it was and Bailey put forth evidence that he had seen her before. Davis removed Bailey's cast and noticed a foul odor and necrotic tissue. She believed Bailey should be transferred to Stroger Hospital. After Davis removed the cast, Dr. Kapotas examined Bailey's leg. Dr. Kapotas noticed an apparent infection at the wound site and concluded that Bailey needed irrigation and debridement surgery. (Dr. Kapotas also ordered x-rays, which confirmed swelling.) Dr. Kapotas transferred Bailey to Stroger Hospital, because the surgery Bailey needed could not be performed at Cermak. Dr. Kapotas referred Bailey to the emergency room at Stroger so that he would be admitted more quickly, and Dr. Kapotas called ahead to the orthopedic specialist at Stroger to ensure that Bailey would be admitted.

At Stroger Hospital, on September 1, Bailey had irrigation and debridement surgery, during which his wound was cleaned, debrided and inserted with antibiotic beads. Bailey was diagnosed with osteomyelitis, a bone infection caused by exposure to bacteria. Once osteomyelitis sets into one's bone, the bacteria remains there for the person's life.

Bailey was at Stroger Hospital from August 31, 2006 through October 9, 2006. While there, he was treated with, among other things, antibiotics, surgeries, dressing changes and a wound vac. Bailey was discharged back to Cook County Department of Corrections on October 9, 2006, where he was cared for until October 31, 2006. Then, Bailey went back to Stroger Hospital for more irrigation and debridement. Bailey remained a patient at Stroger Hospital for the vast majority of the time until February 2007.

In February 2007, Bailey discussed his options with Dr. Kapotas. Dr. Kapotas told Bailey that he had three options: more irrigation and debridement surgeries, bone transport or amputation. Bailey was frustrated with the multiple hospital stays and surgeries. He wanted a treatment that would guarantee that osteomyelitis would not return. Dr. Kapotas told Bailey that only amputation would guarantee that the infection would not return. Later, Bailey told Dr. Kapotas that he was considering amputation. Dr. Kapotas reminded Bailey that amputation is final and that he had other options. Another doctor, Dr. Gray (who is not a defendant) told Bailey that if he did not have an amputation, the infection could get into his blood stream and cause his death. Bailey felt that he had no choice but amputation. Bailey signed a consent form that outlined the amputation procedure and treatment alternatives. Dr. Kapotas amputated Bailey's right leg below the knee.

It is undisputed that the medical evidence indicates that the most likely cause of Bailey's osteomyelitis was the open fracture he suffered during the August 6 motorcycle accident. Bailey also put forth disputed evidence that, had Bailey received better wound care, his infection would not have developed to the point where amputation was necessary.

On July 11, 2008, the Department of Justice ("DOJ") sent the Cook County Board a letter outlining the DOJ's conclusions of an investigation it conducted at the Cook County Department of Corrections. The letter stated its conclusions that, among other things, Cook County Department of Corrections provided inadequate health assessments, inadequate acute care, inadequate access to medical care and kept inadequate medical records.

Dr. Avery Hart, the Chief Medical Officer at Cermak, testified that he was familiar with the DOJ letter. According to Dr. Hart, at least some portions of the DOJ letter are accurate. Dr. Hart testified that Cermak had problems with the retrieval of medical records and that sometimes patients were one place in Cermak while their records were elsewhere. Dr. Hart also testified that there was some validity to the DOJ letter with respect to medical administration, ...


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