Lipsey v. United States of America et al

Filing 262

ORDER ON MOTION FOR SUMMARY JUDGMENT entered by Chief Judge James E. Shadid on 12/12/16. J.L.'s medical conditions and injuries are tragic, and the Court is not unsympathetic to the suffering that J.L., her father, and her mother have endured as a result. However, the Courts sympathy cannot change the law or the facts established in this record by admissible evidence to achieve a more compassionate result. The actions of the Kankakee Defendants were reasonable given what they knew at the ti me, and there is nothing in the record to indicate that they had any reason to foresee that White's placenta would abruptly detach and deprive the unborn child of oxygen. For the reasons set forth above, the Kankakee Defendants' Motion for Summary Judgment 234 is GRANTED. This matter is now terminated, and all existing deadlines are vacated. SEE FULL WRITTEN ORDER. (FDT, ilcd)

E-FILED

Monday, 12 December, 2016 01:59:51 PM
Clerk, U.S. District Court, ILCD
FOR THE CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

JOHN LIPSEY, Individually and as father
and next friend of J.L., a disabled minor,

)
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
KANKAKEE COUNTY, a body politic,
)
THE SHERIFF OF KANKAKEE
)
COUNTY, TIMOTHY F. BUKOWSKI,
)
MICHAEL DOWNEY; HEATHER GILL, )
R.N., TIMOTHY MENARD, P.A.,
)
CLYDE DAYHOFF, D.O., IVETTE
)
CHAREE SANGSTER, L.P.N., and MJS )
ADVANTAGE, INC., a corporation,
)
)
Defendants.
)

Case No.: 12-2100

ORDER ON MOTION
FOR SUMMARY JUDGMENT
The Kankakee County Defendants have filed a Motion for Summary Judgment. For the
reasons set forth below, the Motion [234] is GRANTED.
BACKGROUND
Wenona White was pregnant and in the last trimester of her pregnancy when she was
taken into federal custody. J.L. is the child that White delivered while in custody, and John
Lipsey is J.L.’s father. The relevant allegations in Plaintiffs’ Amended Complaint arise out of
White’s time at the Jerome Combs Detention Center (“JCDC”) between September 11, 2009,
and September 30, 2009. The JCDC is owned, operated, and managed by Defendant Kankakee
County. Defendant Timothy Bukowski (“Bukowski”) is the Sheriff of Kankakee County.
During the summer of 2009, White and others were wanted on federal bank fraud
charges. At that time, White was pregnant with her tenth child. A criminal complaint was filed
against White in the Eastern District of Virginia on June 8, 2009, and White was to selfsurrender at the federal courthouse in Hammond, Indiana, on July 6, 2009. Needless to say, she
did not surrender as expected.
On September 10, 2009, White was located, taken into custody, and place overnight at
the St. Joseph County Jail in Indiana. The next day, she was transported by the United States
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Marshall Service (“USMS”) to the federal courthouse in Hammond for a court appearance. The
Court ordered White remanded to the custody of the USMS and transported to the United States
District Court for the Eastern District of Virginia. At that time, she was approximately 35 weeks
pregnant, so the USMS arranged for White to be housed at the JCDC pursuant to a contract fo
the safekeeping and care of federal detainees, with the expectation that she would remain there
until after she gave birth to her child.
While in the custody of the USMS on September 11, 2009, White did not have any
symptoms of illness or injury, and there was no indication that she was in immediate need of
medical treatment. When deposed, White further indicated that she had had three prenatal visits
with a midwife in March, April, and June 2009, but had received no prenatal care after June 2009
because she knew that she was wanted by the police.
A summary of the relevant chronology is as follows:
September 11, 2009 - White was transferred from the courthouse in Hammond to JCDC.
The JCDC intake officer obtained information from White, completed an intake form
noting that White's due date was October 18 and that her last medical exam was in
August, and that she took prenatal vitamins. White claims that she does not recall
whether she told the intake officer about any problems she was having with her
pregnancy. White Dep. 77. White admits she did not inform the intake officer that with
her ninth pregnancy, she had placenta previa. White Dep. 78.
September 12, 2009 – Nurse Sangster saw White in her housing unit. White said her due
date was October 18, 2009, and that she was not having any problems with her
pregnancy. Sangster Dep. 15, 23-27.
September 16, 2009 - JCDC nurse Heather Gill ("Gill") saw White in the JCDC clinic.
Gill's note states, "Inmate Seen in Clinic. Has had regular check ups with OB/GYN in
Indiana. States this will be her 10th child. Denies any problems with pregnancy.
Prenatal vitamins ordered. Will try to schedule apt with Dr. Mehta or Haile." White Dep.
Ex. 15. White admits that she told a female nurse that she didn't have any problems with
her tenth pregnancy. White Dep. 80.
September 17, 2009 - JCDC officials had a routine meeting with medical staff. White's
pregnancy was discussed. JCDC Chief of Corrections Michael Downey (“Downey”)
states that he was concerned about White's pregnancy and their difficulty scheduling
White with an obstetrician. The notes from the meeting reflect that Dr. Haile refused to
take White as a patient that late in her pregnancy. Downey stated at the meeting that he
had contacted the USMS and asked that White be transferred to a different facility where
obstetrical care might be more accessible. (Downey does not remember who he talked to,
and USMS employees deny having received such a call.) The meeting notes reflect that
"the feds" told Downey it was impossible to move White at that time. Follow-up notes
indicate that Downey would continue to work on a transfer, an emergency delivery kit
would be ordered, and the health care staff would monitor White very closely.

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September 18, 2009 - JCDC physician's assistant Timothy Menard ("Menard")
attempted to have White come to the health care unit. A log note written by Menard
states, "[White] refused to be seen this a.m. per health care. She did sign a refusal form
and was informed of the risks to her and her unborn child. She was informed that with
[sic] being able to do weekly Gyne. exams that there is no way to determine cervical
dilation or position of the fetus." White Dep. Ex. 16. The treatment refusal form is found
at White Deposition Exhibit 1. White admits she signed the refusal form. The record is
devoid of any documentation indicating that White ever requested medical attention from
anyone at the JDRC either before or after she refused to be seen on September 18, 2009.
September 21, 2009 -Nurse Gill wrote a log note stating that Westwood OB called back,
and Dr. Lewicky would see White "next Tuesday." See Downey Dep. Ex. 6-4.
September 22, 2009 -White awoke with abdominal and back pain and called for
assistance. JCDC records reflect a call from White's cell at 5:10 a.m. At this time, White
was not bleeding.
The fire department received a dispatch at 5:13 a.m., and the
ambulance crew arrived at 5:22 a.m. White was assessed and transported to St. Mary's
Hospital in Kankakee without incident. Neither the correctional officers nor the
paramedics who transported White had any reason to believe that her baby was in fetal
distress.
White arrived at the hospital at 5:52 a.m. At 5:54 a.m., hospital staff took White's
medical history during which she denied having any complications during her pregnancy or any
chronic medical problems. At 6:07 a.m., the baby's fetal heart tones were examined using a fetal
heart monitor. The nurse was unable to find any fetal heart tones. At 6:08 a.m., a bedside
ultrasound revealed that the baby had a very slow heart rate. At 6:13 a.m., the decision was
made to perform an emergency cesarean section. J.L. was delivered at 6:33 a.m. During the
cesarian section the doctor discovered that White had a complete abruption of the placenta which
stopped the flow of oxygen to the fetus. The abruption most likely occurred either while White
was in the ambulance or after her admission to St. Mary’s. J.L. was not breathing when she was
born, but she was able to be resuscitated and was transported to the neonatal intensive care unit
at the University of Chicago Hospital. The oxygen deprivation resulted in severe, permanent
physical and mental disabilities.
Plaintiffs brought this suit, alleging claims of medical malpractice, as well as pendent
claims under the Family Expense Act and for willful and wanton conduct. Summary judgment
was previously granted in favor of the United States. The remaining Defendants have now filed
a Motion for Summary Judgment. The matter is now fully briefed, and this Order follows.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact that the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must
construe the evidence in the light most favorable to the non-moving party and draw all justifiable
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inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If the evidence, however, is "merely colorable, or is not significantly probative or merely raises
'some metaphysical doubt as the material facts,' summary judgment may be granted." Liberty
Lobby, 477 U.S. at 249-50. Overall, "[s]ummary judgment is appropriate if, on the record as a
whole, a rational trier of fact could not find for the non-moving party." Durkin v. Equifax Check
Services, 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d
991, 995 (7th Cir. 2003)). Summary judgment is mandated when, after adequate time for
discovery, the party who bears the burden of proof fails to make a showing sufficient to establish
an essential element of that party's case. Celotex, 477 U.S. at 323.
Thus, in order to overcome the undisputed facts set forth in a defendants' motion for
summary judgment, a plaintiff cannot rest on the allegations in his complaint but must point to
affidavits, depositions or other evidence of an admissible sort that a genuine dispute of material
fact exists between parties. Fed. R. Civ. P. 56(e)(2); Behrens v. Pelletier, 516 U.S. 299, 309
(1996).
DISCUSSION
Sheriff Bukowski and Corrections Chief Downey
Sheriff Bukowski and Corrections Chief Downey argue that they are entitled to summary
judgment on the ordinary negligence claims against them because they did not breach any duty
owed to White or her unborn child. In ruling on the prior Motion to Dismiss, Judge McCuskey
noted that these Defendants could not be held liable for claims of medical malpractice. He
declined to dismiss them entirely, however, because whether they were negligent for accepting
White into the JCDC without being properly equipped to treat her or in transferring her for
delivery, or whether Plaintiffs were attempting to hold them liable for the wrongful acts of
anyone working under them needed to be decided on a more complete factual record.
Defendants assert that the record indicates that neither of them had any contact with White or
that either of them committed any acts or omissions that would give rise to liability against them.
The Court agrees that there is no evidence indicating that these Defendants negligently
accepted custody of White on September 11, 2009, as the JCDC had housed pregnant inmates in
the past and had established relationships with outside local specialists on an “as needed” basis
to treat inmates with specific medical issues. Kankakee County Obstetrics & Gynecology had
treated their pregnant inmates in the past and had never refused to take on a pregnant inmate as a
patient. Given this past relationship, the record is devoid of evidence indicating that at the time
of White’s arrival at JCDC, Bukowski or Downey had any inkling that Kankakee County
Obstetrics and Gynecology would later decline to accept White as a patient on September 16,
2009, that they had any reason to believe that JCDC medical staff could not provide appropriate
medical care, or that they had any reason to know that she was a high-risk pregnancy or would
deliver early or require a cesarean delivery under emergent circumstances. There is no evidence
that either Bukowski or Downey had any personal interaction with White or did anything other
than rely on the expertise of their medical providers and staff, for which they cannot be held
vicariously liable. Once Kankakee County Obstetrics & Gynecology declined to see White, staff
made an appointment with Westwood Obstetrics that was almost three weeks before her
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estimated due date. In the meantime, medical staff developed a plan for the JCDC medical staff
to check her blood pressure regularly and obtain an emergency delivery kit in case White went
into labor and was not transportable. As local government officers, Bukowski and Downey
breached no duty of care by relying on the medical judgment of their medical directors and staff.
Plaintiffs’ attempted reliance on the expert opinion of Dr. Robert Greifinger, their reliance is
misplaced, as his conclusory assertions of negligence do not constitute evidence that either
Bukowski or Downey’s purported “ordinary negligence” with respect to their management and
operation of the jail was anything other than reliance on the medical judgment of their staff.
Accordingly, there is no showing of anything more than vicarious liability, and both Sheriff
Bukowski and Corrections Chief Downey are entitled to summary judgment.
JCDC Medical Personnel
Section 4-105 of the Tort Immunity Act provides: “Neither a local public entity nor a
public employee is liable for injury proximately caused by a failure to furnish or obtain medical
care for a prisoner in his custody; but this Section shall not apply where the employee, acting
within the scope of his employ, knows from observation of conditions that the prisoner is in need
of immediate medical care and, through willful and wanton conduct, fails to take the reasonable
action to summon medical care.” Defendants argue that White had not seen an obstetrician in
more than two months preceding her arrest, but ultrasounds taken in April and July 2009 showed
no abnormalities or problems with the pregnancy. It is undisputed that from the beginning of her
pregnancy through her arrest, White experienced no spotting, bleeding, early labor, or problems
with her pregnancy. On admission, her blood pressure was 161/86. On September 12, 2009,
White told Nurse Sangster that her due date was October 18, 2009, that her last checkup had
been in August, and that she was not having any problems with her pregnancy. White was seen
by Nurse Gill on September 16, 2009, again denying having any problems with her pregnancy.
Nurse Gill prescribed prenatal vitamins and attempted to schedule an appointment with an
obstetrician. At the clinical operations meeting on September 17, 2009, Downey, Dayhoff,
Menard, Gill, and Sangster discussed calling the other obstetrician practice in Kankakee to
schedule an appointment for White; staff were directed to take her blood pressure regularly and
monitor her closely. The staff had different views of what “regularly” meant and failed to take
her blood pressure with the specified frequency. Transfer to another facility was explored, but
contingency plans were made when the USMS denied the transfer. On September 18, 2009,
Menard attempted to bring White to medical for an examination, but she declined to come and
signed a Treatment Refusal Form. Even when Menard went to White’s cell to explain the
dangers to herself and baby if she wasn’t examined, White persisted in her refusal. Thus, on this
day, White prevented her blood pressure from being checked. There is no evidence that
checking her blood pressure more frequently would have revealed the placental abruption to
enable Defendants to have prevented it.
To be excluded from immunity under § 4-105, Defendants had to (1) know that White
needed immediate medical care through personal observation, and (2) despite this knowledge,
willfully and wantonly fail to summon medical care. There is simply no evidence that any of the
medical providers at JCDC ever knew from personal observation that White or her pregnancy
were in danger or required immediate medical care before the morning of September 22, 2009,
or that they willfully and wantonly failed to summon immediate care when it was needed. No
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acute condition or medical emergency was observed at the time of her admission to the JCDC or
at any time prior to September 22, 2009, when White made her first request for medical attention
at JCDC. Paramedics were summoned within three minutes of an officer being notified that
White was in pain. The ambulance arrived nine minutes later, and White was examined to find
no bleeding, normal pulse, normal respiration, normal oxygen, and a normal heart rhythm. She
was in the ambulance to be transferred to the local hospital within 10 minutes of the paramedics’
arrival at JCDC. The ambulance arrived at the hospital 20 minutes later, and the transfer was
reportedly without incident, with White again reporting to paramedics that she had no
complications with her pregnancy. 1 Upon further examination at the hospital, it was discovered
that the placenta had detached from White’s uterus, which completely stops the flow of oxygen
to the fetus and can result in ischemic injury and fetal death within minutes. 2 Even Plaintiffs’
expert, Dr. Greifinger concedes that there is no evidence of undue delay by anyone on the
morning that White went into labor, and at the hospital, where medical staff has no personal
interest in the outcome of this case, White reported to the intake nurse that she had not had any
complications during her pregnancy or any chronic medical problems.
Given that a complete abruption of the placenta can cause ischemic injury and fetal death
within minutes and the fact that J.L. was able to be resuscitated relatively easily, a reasonable
factfinder would conclude that the placental abruption occurred either during the ambulance
transport or at the hospital, and it was the abruption that caused J.L.’s injuries. In fact, Dr.
Taylor, the physician that treated White at the hospital, testified that the complete placental
abruption that he observed was sudden and most likely occurred after White was admitted into
the hospital, because if the abruption had occurred earlier, J.L. would have been dead and could
not have been resuscitated by the hospital staff after the cesarean section. It is further undisputed
that since White did not experience any pain, bleeding, contractions, or labor the night of
September 21, 2009, it is very unlikely that her placenta began to detach that night.
Plaintiffs have not cited any case law for the proposition that the fact that White was
pregnant, in and of itself, necessitates immediate medical care. The evidence in this case shows,
at best, that Defendants were aware that White was in her last trimester of pregnancy, had blood
pressure of 161/86 on admission, repeatedly denied experiencing any problems or complications
with her pregnancy, and made no request for medical attention until the morning of September
22, 2009. The record does not establish that White’s blood pressure caused her placental
abruption or any of J.L.’s injuries. To the contrary, Plaintiff’s pediatric neurological expert, Dr.
Michelle Melyn opined that J.L.’s injuries were the result of the hypoxic/anoxic insult that she
suffered on the morning of September 22, 2009, when the placenta abrupted from White’s uterus
and that without this, she would have been neurologically normal. It is undisputed that an
ultrasound or other fetal monitoring conducted during White’s time at the JCDC would have
shown only normal growth and would not have revealed the acute placental abruption that had
not yet occurred. There is also evidence that an examination would not have revealed fetal
distress.

1

To the extent that Plaintiffs failed to properly deny assertions of undisputed fact, they are deemed admitted
pursuant to Local Rule 7.1(D)(2)(b)(6).
2
Again, Plaintiffs place this fact in the disputed section but fail to cite to any contrary evidence of record. Failure to
properly dispute an assertion of undisputed fact renders the fact undisputed under Local Rule 7.1(D)(2)(b)(6).

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Plaintiffs have not demonstrated that anything Defendants could have done differently
was either done with willfully and wantonly or would have made a difference in the outcome of
J.L.’s delivery. The Court finds that Defendants are entitled to immunity pursuant to § 4-105 of
the Tort Immunity Act. Given this record, the Court also finds that they would be entitled to
immunity under §§ 6-105 and 6-106, as there is no evidence establishing that they should have
made a different diagnosis before White began having problems on September 22, 2009, or
failed to administer prescribed treatment. They are therefore entitled to summary judgment in
this respect.
CONCLUSION
J.L.’s medical conditions and injuries are tragic, and the Court is not unsympathetic to the
suffering that J.L., her father, and her mother have endured as a result. However, the Court’s
sympathy cannot change the law or the facts established in this record by admissible evidence to
achieve a more compassionate result. The actions of the Kankakee Defendants were reasonable
given what they knew at the time, and there is nothing in the record to indicate that they had any
reason to foresee that White’s placenta would abruptly detach and deprive the unborn child of
oxygen. For the reasons set forth above, the Kankakee Defendants’ Motion for Summary
Judgment [234] is GRANTED. This matter is now terminated, and all existing deadlines are
vacated.
ENTERED this 12th day of December, 2016.

s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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