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Johnson v. Bishof

Court of Appeals of Illinois, First District, Fifth Division

March 13, 2015

KONI JOHNSON, Plaintiff-Appellant,
CHRISTINE PABIN BISHOF, M.D., Individually and as an Agent and/or Employee of Cook County, d/b/a John H. Stroger, Jr., Hospital; COOK COUNTY, d/b/a John H. Stroger, Jr., Hospital, by and Through its Agent and/or Employee, Christine Pabin Bishof, M.D.; JONATHAN BANKOFF, M.D., Individually and as an Agent and/or Employee of Cook County, d/b/a John H. Stroger, Jr., Hospital; and COOK COUNTY, d/b/a John H. Stroger, Jr., Hospital, by and Through its Agent and/or Employee, Jonathan Bankoff, M.D., Defendants-Appellees

Modified Upon Denial of Rehearing June 26, 2015

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Appeal from the Circuit Court of Cook County. No. 08 L 006337. Honorable Kathy M. Flanagan, Judge Presiding.

For APPELLANT: Joseph A. Power, Jr., Carolyn Daley Scott, Power Rogers & Smith, P.C.

For APPELLEE: Anita Alvarez, State's Attorney (Deputy State's Attorney, Patrick T. Driscoll, Jr., Assistant State's Attorneys, Jeffrey McCutchan, Sandra J. Weber of counsel).

PRESIDING JUSTICE PALMER delivered the judgment of the court with opinion. Justices McBride and Gordon concurred in the judgment and opinion.


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[¶1] Plaintiff Koni Johnson filed an action against defendants Christine Pabin Bishof, M.D., Jonathan Bankoff, M.D., and the County of Cook, doing business as John H. Stroger, Jr., Hospital (the county) alleging negligence, negligent infliction of emotional distress and violation of the Emergency Medical Treatment and Active Labor Act (EMTALA) (42 U.S.C. § 1395dd (2012)) in defendants' diagnosis and treatment of her in the emergency room of John H. Stroger, Jr., Hospital (Stroger Hospital). The court entered summary judgment for defendants on all counts asserted against them in plaintiff's fifth amended complaint. On appeal, plaintiff argues the court erred in granting summary judgment on (1) counts I and III, as defendants are not immune from liability under sections 6-105 and 6-106 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/6-105, 6-106 (West 2012)) (Tort Immunity Act) for their negligence in failing to appropriately treat her, (2) counts II and IV, as defendants are not immune from liability under the Tort Immunity Act for their negligent infliction of

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emotional distress on her and (3) count V, as questions of fact exist regarding whether she was given a medical screening examination within defendants' capability to provide and was stabilized before being discharged from the emergency room as required by EMTALA. We affirm.


[¶3] This appeal concerns the trial court's grant of summary judgment to defendants on plaintiff's fifth amended complaint sounding in medical negligence, negligent infliction of emotional distress and violation of EMTALA.[1] Plaintiff filed the complaint in September 2009, directing counts I through V at defendants and counts VI through VIII at four codefendants. Only the five counts directed at defendants are at issue here.

[¶4] In the complaint, plaintiff stated that she presented to the emergency room at Stroger Hospital, a hospital owned and operated by the county, on or about March 4, 2007, complaining of back spasms, numbness in her right lower extremity, cramping in her right thigh and severe pain in her back. Plaintiff had slipped on ice the previous day. She did not have medical insurance. Plaintiff alleged she was seen by Drs. Bishof and Bankoff, emergency room physicians at the hospital and agents and/or employees of the county. She asserted she complained to Drs. Bishof and Bankoff that her leg was numb, it felt like her leg was getting weak and she could not move her toes. Before being discharged from the emergency room, she claimed she could not walk. She alleged that Drs. Bishof and Bankoff " did not perform a proper initial medical screening examination" on her, " ordered a Computerized Axial Tomography (CAT scan) only upon [her] insistence" and " failed to screen and treat [her] for a spinal cord injury." Plaintiff claimed Drs. Bishof and Bankoff accused her " of faking her injuries" and discharged her with Valium and a diagnosis of muscle spasm and did not give her any follow-up information or instructions upon discharge. She asserted that Drs. Bishof and Bankoff " had the duty to possess and apply the knowledge and use the skill of a reasonable well qualified emergency room physician under the same or similar circumstances." Plaintiff also stated that, on March 5, 2007, she presented to the emergency room at Lincoln Park Hospital, from which she was discharged with a diagnosis of " numbness, possibly fictitious," and she then returned to the emergency room at Stroger Hospital, complaining of the inability to move her legs. She was diagnosed at Stroger Hospital with a spinal cord contusion and paralysis on March 6, 2007.

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[¶5] In counts I and III of plaintiff's fifth amended complaint, she asserted negligence claims against defendants. She claimed she suffered permanent injuries and lost earnings as a proximate result of defendants' negligent failure to do one or more of the following: (1) properly perform an initial medical screening examination; (2) properly screen her for her signs and symptoms; (3) properly treat her for her signs and symptoms; (4) properly treat her for a spinal cord injury; (5) properly consult with a neurologist or neurosurgeon for her signs and symptoms; or (6) refer her to a neurologist or neurosurgeon for treatment of her signs and symptoms." [2]

[¶6] In counts II and IV, plaintiff asserted negligent infliction of emotional distress against defendants, alleging the same negligent acts and omissions as set forth in her negligence counts. She claimed she suffered and will continue to suffer permanent injuries, lost earnings and " severe mental and emotional anguish due to her injuries" as a proximate result of one or more of the negligent acts or omissions.

[¶7] In count V, plaintiff asserted the county " had a duty to provide for an appropriate medical screening for [her] within the capability of [Stroger Hospital's] emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition existed" and that it failed to provide her with an appropriate medical screening examination within the capability of the hospital's emergency department. She asserted the county was negligent in failing to (1) properly perform an appropriate medical screening examination pursuant to EMTALA or (2) properly stabilize, treat, and refer her to a neurologist or neurosurgeon in violation of EMTALA. Plaintiff sought damages for the permanent injuries she suffered as a proximate result of these negligent acts or omissions and for the severe mental and emotional anguish she allegedly suffered and will continue to suffer due to those injuries.

[¶8] Defendants answered, denying the allegations. They filed affirmative defenses, asserting that, as a " local public entity" and employees of that public entity acting within the scope of their employment, they were immune from liability for any injury which may have been caused to plaintiff by their failure to diagnose or treat her condition pursuant to sections 6-105 and 6-106(a) of the Tort Immunity Act (745 ILCS 10/6-105, 6-106(a) (West 2012)).[3] The parties then conducted extensive discovery.

[¶9] In plaintiff's discovery deposition, she testified that she slipped on a patch of ice on March 3, 2007, and fell flat on her back. The next day, she went to the emergency room at Stroger Hospital, complaining

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of back spasms, legs tingling and back pain. Dr. Bishof examined her but plaintiff could not recall what examinations Dr. Bishof performed. At some point, plaintiff received intravenous infusions of Valium and morphine for her pain and two X-rays were taken of her back. Plaintiff was then examined by Dr. Bankoff.

[¶10] Plaintiff testified that Dr. Bankoff told her there was " nothing wrong" with her and she had to " get out of here." He stated " I don't know that you think you're up to" and told her " you're lying, you're faking." Plaintiff stated that, by this time, many hours after she first arrived in the emergency department, she could not walk but " they wouldn't listen to [her]." Plaintiff testified that Dr. Bankoff " kept insisting" that there was nothing wrong with her and that she could stand. He told her to stand and she " said no, I can't stand, no, I can't." He did not believe her when she said she could not stand. With plaintiff's boyfriend on one side and Dr. Bankoff on the other, they took plaintiff by the arms and stood her up. Dr. Bankoff then told her boyfriend " to let go," which he did, and plaintiff collapsed to the ground. Plaintiff testified that the doctor looked at her and told her " see how your legs are bent, because they are crossed like this, like sort of funny. He goes, no one does that, you know, when they just fall, really, you're doing yoga positions, so you're lying, you're doing yoga positions."

[¶11] Plaintiff testified that a CAT scan was then taken and a " second male doctor" told her the results, telling her there was nothing wrong with her and " we're not going to do an MRI [magnetic resonance imaging] because you don't need one." [4] This second male doctor then discharged her with instructions " to see a doctor, *** take it easy, take aspirin or something, if conditions get worse come back, but I couldn't walk, and they wouldn't listen to me, and he kept writing on the paper that I felt fine." She said, " I was told there was nothing wrong with me. The first doctor [Dr. Bankoff] *** said there was absolutely nothing wrong with me and made me stand up and fall on the ground, insisting there was nothing wrong with me. The second doctor kept insisting there was nothing wrong with me, and they sent me home saying there was nothing wrong with me." [5]

[¶12] Plaintiff testified: " I didn't know what to do. I just wanted them to admit me and keep looking, find out what was wrong, believe me, to believe me, and they wouldn't believe me, and their treatment of me then too, and, yes, they did not go further with their tests that they could have performed." She stated she kept telling the doctors that she wanted them " to go further, is there anything else, because I knew there was something wrong," but did not request any specific tests. Plaintiff could not walk by this point and her boyfriend, aided by an orderly, had to lift her into his car. She went home and slept for a few hours. When she woke, she still could not stand, was in severe pain and could not urinate.

[¶13] Plaintiff testified that her boyfriend then took her to Lincoln Park Hospital, where she was examined by Frederic Fishman, M.D.. Plaintiff stated Dr. Fishman told her there was nothing wrong with her, told her she had to leave and pushed her in her wheelchair into the waiting room while she was still crying and " told everybody that [she] was a mental case and to get out of there or he would call the cops."

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Later the same day, plaintiff returned to Stroger Hospital. On this second visit to Stroger Hospital, plaintiff was evaluated by a neurosurgeon, an MRI was taken of her back, plaintiff was diagnosed with a spinal injury and she was admitted to the hospital. Plaintiff remained at Stroger Hospital for a week before being transferred to Oak Forest Hospital for inpatient rehabilitation.

[¶14] Asked to explain the emotional distress " problem" she claimed resulted from her fall and treatment, plaintiff testified:

" I have no self-confidence anymore. I feel very much that I have to defend myself or at least explain myself, say I'm sorry to anybody, that no one's going to believe me anyway, that I'm just kind of a phony, people don't put any trust or faith in me."

She stated she had regularly spoken to a psychologist at Oak Forest Hospital during her rehabilitation stay there after her transfer from Stroger Hospital and this doctor had told her she needed to continue seeing a psychologist after her discharge. Plaintiff was " still" taking Wellbutrin (an anti-anxiety medication) as prescribed to her by this doctor but was not seeing a psychologist as she could not afford one. She testified that, " a long time ago," before her fall, she had taken medication for depression.

[¶15] The medical record of plaintiff's emergency room visit lists Dr. Bishof as the primary " MD/NP." It shows plaintiff was first " seen" in the emergency room shortly after 5 p.m. and discharged at 3 a.m. the next day. During her stay, she received multiple doses of pain killer Toradol, of Valium and of morphine. Dr. Bishof ordered two X-rays of plaintiff's spine, taken five hours apart. The X-rays showed " vertebral body and disc height and alignment are preserved *** [and] no definite fracture" and " bony contours and joint spaces are seen to be within normal limits." The CAT scan ordered by Dr. Bishof showed " no acute fracture or dislocation," " vertebral body heights and intervertebral spaces are preserved" and " soft tissues are unremarkable." The discharge diagnosis written in the record is " back/buttock contusion s/p RH." The " instructions to patient" directed plaintiff to take the pain medication Motrin as prescribed, follow up with her primary care physician and " rest." The chart is signed by Dr. Bishof and Dr. Sergel, Dr. Bishof's attending physician. An emergency department " discharge" computer record lists the " primary discharge diagnosis" as " muscle spasm."

[¶16] Dr. Bishof testified in her discovery deposition that she took a " complete history and physical" of plaintiff. She performed " a complete head-to-toe exam" of plaintiff, determining that plaintiff's neurological exam was " intact, plaintiff had no point tenderness over her back or bruising and had full range of motion at her hips, knees and ankles on her own and with Dr. Bishof " passively ranging her through motion." Dr. Bishof found plaintiff " had some tense paraspinal muscles in her low back" and seemed to be spasming in pain but her cranial nerves were intact, her tendon reflexes were normal, there was normal sensation in all four of her extremities and complete and full strength in all her extremities, and there were no signs of upper motor neuron problems.

[¶17] Dr. Bishof testified that, after her physical examination of plaintiff, she ordered that plaintiff receive an anti-inflammatory and pain medication to help with her muscle spasms, Valium and, when plaintiff complained of pain, morphine. Dr. Bishof reassessed plaintiff several different times. When plaintiff complained that her right leg was getting weak, Dr. Bishof reassessed her but found " a normal exam." As a matter of practice, she would

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have rechecked plaintiff's " deep tendon reflexes," the sensation and strength in her feet and her ability to move her legs. Dr. Bishof " did not find any physical objective findings" on her reexamination but, as plaintiff was complaining of new symptoms, Dr. Bishof ordered a CAT scan of plaintiff's spine. Dr. Bishof's shift then ended and she did not see plaintiff again.

[¶18] Dr. Bishof testified that her initial impression of plaintiff's symptoms was " muscle spasm with possible contusion to her back from the fall," which was consistent with the symptoms of which plaintiff complained. Dr. Bishof remembered, however, that plaintiff " had some objective findings which were not consistent with the subjective findings [plaintiff's complaints]." Specifically, she remembered that plaintiff was complaining of numbness but " had a normal neurological exam, normal sensation and proprioception" and that she was moving around " so much" on the gurney, which Dr. Bishof considered inconsistent with being in pain. Dr. Bishof's impression was that plaintiff " had muscle spasm" causing her pain, numbness and cramping. Dr. Bishof noted that, at times, when she looked into plaintiff's cubicle while passing by, plaintiff appeared very comfortable and relaxed on the gurney but, " at other times when you would step into the room, she was writhing around on the cart." It was Dr. Bishof's impression that plaintiff seemed relaxed and comfortable when Dr. Bishof was not in the room.

[¶19] Dr. Bishof stated her opinion that, at the time she saw plaintiff, plaintiff had not suffered any permanent injury to her spinal cord and was neurologically intact. Overall, based on all of plaintiff's complaints, it was Dr. Bishof's " impression that [plaintiff] had muscle spasm." Dr. Bishof came to a differential diagnosis that plaintiff had " contused a bone *** bruised a bone" and, when plaintiff's symptoms escalated, ordered a CAT scan " to rule out any bony injury that may have not been picked up on the plain films." She remembered that she did not call in a neurologic consult because she and her attending physician, to whom she had conveyed plaintiff's history, the results of her physical exam of plaintiff and her impression regarding plaintiff's condition, did not think it was indicated. She would also have spoken to her attending physician about " the plan for evaluation and treatment."

[¶20] Dr. Bishof's shift ended at midnight and her chief resident, Dr. Bankoff, took over plaintiff's care. The last Dr. Bishof knew, plaintiff was being sent for a CAT scan. She did not discharge plaintiff and was not the one who wrote the " discharge diagnosis" into plaintiff's medical record. Dr. Bishof stated it was her custom and practice to give an oral report to the doctor taking over a patient's care but she did not specifically remember giving Dr. Bankoff an oral report on plaintiff. Dr. Bishof asserted she did not believe plaintiff was " faking her injuries" and she had never accused plaintiff of doing so.

[¶21] Dr. Bankoff testified in his discovery deposition that he did not remember plaintiff and had no recollection of any conversation with her but her medical records showed he examined her in the Stroger Hospital emergency department in the early morning on March 5, 2007. He assumed he received the customary briefing on this patient from the " off-going" team of residents at the change of their shift but he could not specifically recall the briefing he received on that shift. From the medical records, he knew he attended to her twice, gave her a prescription for Motrin and, although he documented that she " had subjective back pain with numbness and [was] unable to walk subjectively," his " normal neurologic exam" did not objectively find numbness. He did not remember

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performing the exam or what it had entailed. He did not know whether he asked plaintiff to stand or walk and whether she complied. As was his custom and practice, he would have written plaintiff's discharge order and clarified any discharge instructions with her but another doctor would " actually" discharge her. He knew from the medical record that a CAT scan of plaintiff was " negative" but did not know who wrote this note in the record. Although the medical record stated plaintiff's " primary discharge diagnosis" as muscle spasm, Dr. Bankoff stated it was not his diagnosis. He did not remember plaintiff at all, had no recollection of anything other than what he had written in the medical record and had no memory of asking plaintiff to stand or of accusing her of faking her injury.

[¶22] Plaintiff's expert witness, emergency room physician Kenneth A. Corre, M.D., testified in his deposition that the county/Stroger Hospital violated EMTALA. He stated the basis for his opinions was " [t]hat the patient presented to Stroger Hospital did not have an appropriate or complete medical screening exam, [and[ that she, in fact, did have an emergency medical condition [a 'spinal cord contusion with neurologic findings'] which was not assessed nor treated or dispositioned appropriately." Dr. Corre opined that plaintiff did not receive a " complete medical screening" or " subsequent appropriate testing or diagnosis" and " should have been hospitalized and received immediate consultation [by a spine specialist, neurosurgeon or neurologist] and treatment that would have been part of that hospitalization." He stated plaintiff should have been immediately immobilized with her spine stabilized and should have received " high-dose steroids."

[¶23] Dr. Corre stated that, when plaintiff presented to Stroger Hospital on March 4, 2007, the emergency medical screening examination required a complete and detailed history, a complete and detailed physical exam, imaging which included an MRI of the spine, " stat" consultation with a spine specialist, immobilization and stabilization of the spine, intravenous high-dose steroids, hospitalization of plaintiff as opposed to her being discharged home and " the diagnosis of spinal injury, in particular spinal cord contusion, be made." It was his opinion that Dr. Bishof's initial medical screening, including her failure to schedule an MRI, and physical examination of plaintiff were inadequate and below the standard of care as plaintiff presented with an obvious spinal cord injury that should have been diagnosed by Dr. Bishof as an emergency medical condition requiring immobilization, an MRI, consultation with a spine specialist and hospital admission. Instead, as a result of Dr. Bishof's inadequate examination and testing, she diagnosed plaintiff with a muscle spasm, which diagnosis was accepted by Dr. Bankoff after he received the results of a CAT scan on plaintiff and led to plaintiff's discharge from the hospital with after-care instructions appropriate for a muscle spasm. Dr. Corre stated the after-care instructions were " absolutely not" the appropriate instructions for treatment of plaintiff's spinal cord injury. He asserted that her type of spinal cord injury presented an emergency medical condition and would not have necessitated after-care instructions given that, " by standard of care and EMTALA," she would have been " admitted, treated, immobilized, et cetera." Dr. Corre asserted that the instructions plaintiff received were related " to the diagnosis of back or buttock contusion only" and, if given for something more severe such as a spinal cord contusion or injury, were " woefully inadequate and substandard." Dr. Corre stated that,

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taking together plaintiff's complaints, the mechanism of her injury, the results of the physical examination and the failure to carry out " a complete and standard exam," " they clearly did not take this patient seriously, and I believe that they also clearly violated patient safety."

[¶24] Plaintiff's other expert witness, neurologist Adrian Richard Mainwaring Upton, M.D., stated that, based on his review of plaintiff's medical records and his examination of plaintiff, she had suffered a contusion of the spinal cord as a result of her fall. After discussing plaintiff's signs and symptoms, Dr. Upton stated he did not know how Dr. Bishof " could even begin to suggest" that plaintiff's numbness was due to muscle spasm and found this to be " quite frankly nonsense." Dr. Upton opined that Dr. Bishof did not perform a thorough screening evaluation to determine whether or not a spinal cord injury existed and she should have made a probable diagnosis of spinal cord injury and treated plaintiff for such. He felt that the combination of Dr. Bishof's failure to order an MRI, failure to request a neurological opinion, failure to administer the steroid methyl prednisone and failure to immobilize plaintiff comprised a deviation from the standard of care which aggravated a preexisting condition suffered by plaintiff. Dr. Upton noted that Dr. Bishof did not write a diagnosis in the record.

[¶25] Dr. Upton stated his opinion that Dr. Bankoff also deviated from the standard of care as Dr. Bankoff " was prepared to help discharge the patient when no diagnosis was made and a probable spinal cord lesion had been missed." He stated Dr. Bankoff failed to perform a proper screening evaluation to determine whether spinal cord injury existed, did not order an MRI and did not consult a neurologist or neurosurgeon. Dr. Upton testified that Dr. Bankoff was the individual who diagnosed plaintiff with a " back and buttock contusion status post-fall." He stated that, although this was not an incorrect diagnosis, " what [Dr. Bankoff] didn't do was find out why she had the neurological symptoms which was the spinal cord swelling as a result of the fall." Dr. Bankoff should have gone further and considered the possibility that plaintiff had suffered a spinal lesion, not merely a back and buttock bruising. Dr. Upton stated the after-care instructions given to plaintiff were not treatment for a spinal cord injury and would not have been of any benefit to plaintiff in preventing her from progressing from bruising to paraplegia. It was Dr. Upton's opinion that any of the doctors responsible for the care and treatment of plaintiff should have, based on plaintiff's signs and symptoms, " worked her up [(diagnosed her)] for a contused spinal cord, had an MRI done, delivered the steroids," as was the standard treatment for spinal cord injuries in general. He found the evidence " obvious" that plaintiff had a contused spine and an MRI, although not used to make a diagnosis, would have confirmed or denied the clinical diagnosis. The painkillers prescribed for plaintiff upon discharge would have eliminated plaintiff's pain and improved her back if she " only" had a contused back but her numbness indicated that it was very unlikely that she only had a contused back.

[¶26] Retired Oak Forest Hospital clinical psychologist Malcolm J. Brachman, Jr., Ph.D., testified that he visited plaintiff once during her admission to the spinal cord injury rehabilitation unit at Oak Forest Hospital in 2007. Plaintiff's Oak Forest Hospital medical records showed that, as with any patient admitted to the rehabilitation unit, plaintiff had received a psychological screening. Plaintiff's medical records showed a staff psychologist diagnosed plaintiff as suffering from depression and anxiety, a staff psychiatrist found plaintiff had a history of " major depressive disorder with psychosis" and " psychosis

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with depression" and might possibly suffer from " bipolar disorder," and plaintiff told a staff social worker that she had suffered from depression since the age of 21, for more than 20 years. During plaintiff's stay at Oak Forest Hospital, a predoctoral psychology intern conducted six therapy sessions with plaintiff. Dr. Brachman stated that he went to talk to plaintiff once, after she had expressed suicidal ideation to her therapist. Dr. Brachman opined that, based on his general understanding of rehabilitation patients and given plaintiff's prior history of depression or " mental condition," her " traumatic injury" " probably exacerbated" her existing mental condition.

[¶27] Defendant's expert witness, neurologist Charles C. Wang, M.D., testified in some detail regarding plaintiff's signs and symptoms and opined Dr. Bishof did " a complete head-to-toe," " pretty thorough" examination involving " neuro" and " deep tendon reflexes." He considered it " pretty good for an emergency physician in terms of neurologic examination." He stated Dr. Bishof found a " normal exam," Dr. Bankoff's discharge diagnosis was back/buttock contusion and the emergency department's working diagnosis was muscle spasm with possible contusion to plaintiff's back from the fall. Dr. Wang thought the likely cause of plaintiff's complaints was spinal cord contusion. Regarding plaintiff's complaint to Dr. Bankoff that she could not walk, Dr. Wang stated he would expect a reasonably qualified physician under those circumstances to have the patient walk.

[¶28] In October 2011, defendants moved for summary judgment on negligence counts I and III. Pointing out that plaintiff's experts testified that Drs. Bishof and Bankoff failed to perform diagnostic examinations and tests and to diagnose or treat a spinal cord injury/spinal cord contusion (SCI/SCC), defendants argued that they were entitled to judgment as matter of law under sections 6-105 and 6-106(a) of the Tort Immunity Act. Plaintiff responded that defendants were not immune from liability on counts I and III as her allegations were " primarily rooted" in defendants' failure to perform an initial medical screening, screen her for her signs and symptoms, properly treat her for her signs and symptoms and properly consult with or refer her to a neurologist or neurosurgeon, i.e., were rooted in defendants' ...

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