April 12, 2016
 

Woman can pursue claims son’s lung cancer ignored at county jail

Jail-4-12-16,ph02
 
Diane P. Wood
By Patricia Manson 
Law Bulletin staff writer

A federal appeals court has revived a lawsuit alleging medical personnel in the Cook County Jail failed to treat a pretrial detainee suffering from lung cancer and instead accused him of malingering.

In a written opinion last week, the 7th U.S. Circuit Court of Appeals did not rule on the merits of the claims Lula Dixon brought against the county and two medical providers on behalf of her late son’s estate.

But the court held Dixon presented enough evidence to go to trial on her claims that the defendants were deliberately indifferent to her son’s serious medical condition in violation of his constitutional rights.

 Dixon alleges sloppy record-keeping practices by the county prevented medical providers from properly diagnosing and treating her son as well as other detainees.

The county had separate paper and electronic record-keeping systems that were not coordinated, Dixon alleges, and providers were not always able to access the paper records.

Evidence Dixon presented in support of her allegations against the county, the 7th Circuit wrote, includes a U.S. Justice Department report “condemning” the county’s medical care system for detainees.

Other evidence is a statement by the chief medical officer of the jail’s Cermak Acute Care Facility that the failings detailed in the report were not corrected until after Kevin P. Dixon died in 2009, the court wrote.

And it wrote the physician who acted as the primary investigator during the Justice Department inquiry concluded problems in the jail’s medical care system prolonged Dixon’s suffering.

Considering the record-keeping policy and other evidence, Chief Judge Diane P. Wood wrote for a panel of the court, “a reasonable jury could find that pervasive systemic deficiencies in the detention center’s health care system were the moving force behind Dixon’s injury.”

The panel also held Lula Dixon presented enough evidence to pursue claims against Dr. Katina Bonaparte and nurse Newworld Eboigbe.

Dixon contends Bonaparte knew her son had a chest tumor at least six days before he was transferred to the hospital, the panel wrote, yet gave him only over-the-counter painkillers and ordered he undergo a psychiatric exam to determine if he was malingering.

The claim against Bonaparte is not defeated by the possibility that the only care she could have provided was relief from pain, the panel wrote.

“Six days of intense pain cannot be considered to be de minimis for Eighth Amendment purposes,” Wood wrote. “Furthermore, a plaintiff can state a claim of deliberate indifference even if he has a condition that may not be curable.”

The panel also cleared the way for Lula Dixon to pursue her case against Eboigbe.

Six days before her son was sent to the hospital, Dixon alleges, Eboigbe was told he had fallen out of his bunk and was lying partially paralyzed on the floor.

Eboigbe did nothing, Dixon alleges.

“A jury could find that this was an obvious enough problem that even a layperson who discovered it would have at least consulted a doctor for instructions and, failing that, would have called 911 for emergency help,” Wood wrote.

The panel overturned decisions by U.S. District Judge Thomas M. Durkin to grant summary judgment in favor of the county and to dismiss the counts against Bonaparte and Eboigbe.

Michael D. Robbins of Law Offices of Michael D. Robbins & Associates argued the case before the 7th Circuit on behalf of Dixon.

Robbins said he’s pleased all his client’s claims against all the defendants were revived.

“We think that the decision is entirely appropriate, both as to the policy claims and as to the individual defendants,” he said.

Cook County Assistant State’s Attorney Thomas Cargie argued the case on behalf of the defendants.

The state’s attorney’s office declined to comment because the case is pending.

In September 2008, Kevin Dixon was sent to the jail as a pretrial detainee.

He complained of severe pain in his back and abdomen a month later and was sent to Cermak in early December.

An X-ray and CT scan showed he had a tumor next to his trachea, and a doctor ordered another CT for Jan. 2, 2009.

Dixon was returned to the jail, where he was found lying on his cell floor on Dec. 30.

He was sent back to the Cermak facility and was examined by Bonaparte for the first time on Dec. 31, Dixon alleges.

She maintains Bonaparte failed to check on the results of tests performed on Dec. 30 or to access all his medical records.

Instead, Dixon alleges, Bonaparte ordered a psychiatric consultation and a follow-up exam with a specialist.

Another CT scan conducted on Jan. 2 showed her son’s tumor had grown and was likely malignant, Dixon alleges, but Bonaparte simply sent him back to the jail.

Her son was brought back to Cermak three days later and was transferred to Stroger Hospital, Dixon says.

Kevin Dixon ultimately received compassionate release and died in March 2009 from lung cancer.

In its opinion, the 7th Circuit panel also revived claims brought under Illinois law accusing Bonaparte and Eboigbe of intentional infliction of emotional distress.

While it is difficult to prove such claims, the panel wrote, Lula Dixon should have the opportunity to try to show Bonaparte and Eboigbe knew her son wasn’t malingering.

Joining the opinion were Judges William J. Bauer and Diane S. Sykes. Lula Dixon v. County of Cook, et al., No. 13-3634.