Estate of Brandon T Johnson et al v. Milwaukee County et al

Filing 39

DECISION AND ORDER signed by Judge Lynn Adelman on 2/6/17 that Dr. Youngs motion to dismiss the complaint 19 is DENIED. Further ordering that the remaining defendants motion to join Dr. Youngs motion 31 is DENIED. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ESTATE OF BRANDON T. JOHNSON,
et al.,
Plaintiffs,
v.

Case No. 16-C-1043

MILWAUKEE COUNTY, et al.,
Defendants.
______________________________________________________________________
DECISION AND ORDER
In 2012, Brandon Johnson died while he was confined at the Milwaukee County
Mental Health Complex (the “Complex”). Brandon’s 1 estate and his parents bring this
action under 42 U.S.C. § 1983 against Milwaukee County, five health care professionals
who treated him at the Complex, and an insurance company. One of these five healthcare professionals, Dr. Laurens D. Young, has filed a motion to dismiss the claims
against him for failure to state a claim upon which relief can be granted. See Fed. R.
Civ. P. 12(b)(6). The other defendants have filed a motion to “join” Young’s motion to
dismiss. I consider these motions below.
I. ALLEGATIONS OF THE COMPLAINT
According to the allegations of the complaint, on October 3, 2012, at about 7:00
a.m., officers with the Milwaukee Police Department took Brandon into custody because
he was behaving erratically. The officers brought him to the County Mental Health
Complex, where he arrived at about 8:00 a.m. Later that day, staff at the Complex
placed Brandon in a room on one of the Complex’s units.
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Following the plaintiffs’ practice, I will refer to Brandon Johnson by his first name.

At some time before 5:30 p.m., Brandon sustained a blunt force injury to his
neck, possibly as a result of falling.

No staff member at the Complex witnessed

Brandon sustain the injury. However, at about 5:40 p.m., two staff members heard
Brandon calling for help from inside his room. When they entered his room, they found
him lying on the floor. Brandon told these staff members that he had fallen, that he
could no longer move his legs, that he could not feel his legs, that he was unable to get
up, that he was paralyzed, and that he needed to be taken to a “specialty hospital.”
Compl. ¶¶ 179–84. The first staff members to respond examined Brandon but were
unable to determine if he was paralyzed. Other staff members also came to Brandon’s
room or were told about his condition.
At about 6:00 p.m., the Complex’s emergency room sent one of the defendants,
Dr. Graig Aders, a psychiatrist, to examine Brandon. When Aders arrived at Brandon’s
room, Brandon was lying on the floor. Brandon told Aders that he had fallen, was
unable to move his legs, and needed to go to a specialty hospital. Aders examined
Brandon, recognized that he might have suffered a neurological injury, but did not
conduct a full examination that would have addressed any neurological issues. After he
completed his examination, Aders told staff that they could pick Brandon up off the floor
and place him in his bed. However, the staff was unable to lift Brandon into his bed.
Instead, they placed a mattress on the floor and put Brandon on it. Throughout the rest
of the night, Brandon repeatedly complained that he was paralyzed and needed further
medical attention.
On the morning of October 4, 2012, Brandon told a certified nursing assistant
that he was paralyzed and had soiled himself. The nursing assistant confirmed that
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Brandon had soiled himself and bathed him. For the rest of his stay at the Complex,
Brandon wore an adult diaper.
Brandon continued to complain about being paralyzed.

Staff members

eventually placed him in a “geriatric chair,” which is similar to a wheelchair, so that they
could move him around the Complex.

At some point on October 4, one of the

defendants, Dr. David Drake, a physician, informed a staff member that Brandon’s
inability to feel his legs was “psychological.” Compl. ¶ 279.
On October 5, 2012, Brandon was scheduled to attend a probable-cause hearing
regarding his continued detention at the Complex. However, because Brandon could
not get himself out of bed, he did not attend the hearing. One of the defendants, Kelly
K. Duggan, a psychologist, attended the hearing and testified that Brandon’s paralysis
was a “delusional belief.” Compl. ¶ 333. She further testified that Brandon’s inability to
walk had a psychiatric explanation rather than a physical explanation. Id. ¶ 334.
Later that day, at about 2:00 p.m., Dr. Young, a psychiatrist, gave Brandon a
“sensory examination.” Compl. ¶ 349. This occurred after another defendant, Barbara
Plumb, a nurse practitioner, refused to examine the plaintiff or review his chart after
being informed that Brandon was refusing to walk. According to the complaint, when
Young examined the plaintiff, he did not have the proper equipment to conduct the
examination and had difficulty conducting it because he did so in Brandon’s room, which
was dark and confined, and because Brandon was lying on a mattress on the floor. The
complaint further alleges that Young “did not have all the facts” regarding Brandon’s
circumstances. Id. ¶ 352. During the examination, Brandon told Young that he had
numbness and tingling in his upper extremities, numbness and problems with
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movement in his lower extremities, and could not walk. Young determined that Brandon
had some loss of sensation in his lower extremities. Following the examination, Young
diagnosed Brandon with “hysterical paralysis/psychotic presentation, rule out peripheral
neuropathy.” Id. ¶ 356. Young informed other staff members at the Complex that there
was no need to take Brandon to a specialty hospital. As far as the allegations of the
complaint reveal, Young did not himself “rule out peripheral neuropathy” and did not
make arrangements for Brandon to be seen by another doctor who could rule it out.
After Young completed his examination, Brandon remained at the Complex and
was occasionally examined by other professionals, including by defendant Drake.
However, according to the allegations of the complaint, staff at the Complex did not
perform a proper exam to determine whether Brandon had suffered a neurological
injury.
At about 9:00 a.m. on October 6, 2012, staff members wheeled Brandon into the
Complex’s dayroom for breakfast. While in the dayroom, Brandon slumped over in his
chair and became nonresponsive. Staff members initiated an emergency response and
administered CPR. Eventually, employees of the fire department arrived and took over.
However, Brandon was pronounced dead at 10:04 a.m.

An autopsy revealed that

Brandon died of blood clots and lung blockage associated with having suffered a blunt
force injury to his neck.
II. DISCUSSION
Dr. Young has moved to dismiss the claims against him for failure to state a
claim upon which relief can be granted. A plaintiff must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim
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has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must, at a minimum, “give
the defendant fair notice of what the claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555.

In construing plaintiff’s complaint, I assume all factual

allegations to be true but disregard statements that are conclusory. Iqbal, 556 U.S. 678.
The plaintiffs’ primary claim against Dr. Young is for deliberate indifference to a
serious medical need, which arises under the Due Process Clause of the Fourteenth
Amendment and 42 U.S.C. § 1983. 2 Dr. Young contends that the plaintiffs have failed
to state a claim for deliberate indifference against him. Dr. Young also notes that, in
Wisconsin, claims for medical malpractice are subject to certain limitations under
Chapter 655 of the Wisconsin Statutes.

However, because the plaintiffs have not

alleged a claim for medical malpractice against Dr. Young or any of the other
defendants, it is not clear why Dr. Young focuses on Chapter 655. Any limitations that
Chapter 655 places on malpractice claims would not limit the plaintiffs’ rights under the
Constitution or § 1983. See Felder v. Casey, 487 U.S. 131 (1988). Thus, Dr. Young’s
reliance on Chapter 655 is misplaced, and the sole question is whether the complaint
states a claim for deliberate indifference against him.

2

The plaintiffs include four counts in their complaint that pertain to Dr. Young, all of
which arise under 42 U.S.C. § 1983: (1) failure to provide medical attention, (2) unsafe
conditions of confinement, (3) breach of a duty created by a “special relationship,” and
(4) “state-created danger.” The first two claims appear to be identical and boil down to
a standard deliberate-indifference claim regarding medical care. The third and fourth
claims are different, but at this point I will not discuss them because it is unclear if the
plaintiffs could prevail on those claims without also proving that Dr. Young was
deliberately indifferent to Brandon’s serious medical needs.
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A claim under § 1983 alleging deficient medical care must demonstrate two
elements: (1) an objectively serious medical condition; and (2) an official's deliberate
indifference to that condition. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). In
the present case, Dr. Young does not contend that the plaintiffs have failed to allege
that Brandon had an objectively serious medical condition. Thus, the only question is
whether the plaintiffs have alleged that Dr. Young acted with deliberate indifference to
that condition.
To demonstrate deliberate indifference, a plaintiff must show that the defendant
acted with a sufficiently culpable state of mind, something akin to recklessness. Id. at
751. A defendant acts with a sufficiently culpable state of mind when he knows of a
substantial risk of harm to a person and either acts or fails to act in disregard of that
risk. Id. Deliberate indifference is more than negligence and approaches intentional
wrongdoing. Id. In other words, “[d]eliberate indifference is not medical malpractice.”
Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008). “A jury can infer deliberate
indifference on the basis of a physician's treatment decision [when] the decision [is] so
far afield of accepted professional standards as to raise the inference that it was not
actually based on a medical judgment.” Id. A plaintiff can show that the professional
disregarded the need only if the professional's subjective response was so inadequate
that it demonstrated an absence of professional judgment, that is, that “no minimally
competent professional would have so responded under those circumstances.” Arnett,
658 F.3d at 751. A plaintiff, however, “need not prove that the [defendant] intended,
hoped for, or desired the harm that transpired.” Walker v. Benjamin, 293 F.3d 1030,
1037 (7th Cir.2002); see also Duckworth, 532 F.3d at 679 (“[A]lthough deliberate means
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more than negligen[ce], it is something less than purposeful.”). Nor does a plaintiff need
to show that he was literally ignored.

Greeno v. Daley, 414 F.3d 645, 653 (7th

Cir.2005). That the plaintiff received some treatment does not foreclose his deliberate
indifference claim if the treatment received was “so blatantly inappropriate as to
evidence intentional mistreatment likely to seriously aggravate his condition.” Id.
Because this is a motion to dismiss, the question is whether the complaint
alleges facts from which it appears plausible that Dr. Young acted with deliberate
indifference. I conclude that it does. The complaint alleges that Dr. Young examined
the plaintiff knowing that he had been complaining of paralysis below the waist, and
that, during the examination, Dr. Young determined that Brandon had at least some loss
of sensation in his lower extremities. Compl. ¶¶ 348–57. Dr. Young then diagnosed
Brandon’s condition as “hysterical paralysis/psychotic presentation,” which I infer means
that Dr. Young thought Brandon’s paralysis was psychological rather than caused by
some physical injury. Id. ¶ 356. However, Young also noted that it was necessary to
“rule out peripheral neuropathy,” meaning that Young thought it was necessary to rule
out a physical injury. Id. However, so far as the complaint reveals, Young did not
himself rule out a physical injury or formulate a plan to make sure that some other
doctor examined Brandon and ruled out a physical injury.

Instead, the complaint

alleges, Dr. Young told staff at the Complex that “there was no justification for Brandon
to go to a specialty hospital.” Id. ¶ 357. On the basis of these alleged facts, it is
plausible to think that Dr. Young acted with deliberate indifference, i.e., that no
minimally competent psychiatrist would find it necessary to rule out a physical cause of
the plaintiff’s apparently psychological paralysis but fail to make a plan to ensure that
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the physical cause is ruled out. Accordingly, Dr. Young’s motion to dismiss will be
denied. The remaining defendants’ motion to “join” Dr. Young’s motion will also be
denied.
III. CONCLUSION
For the reasons stated, IT IS ORDERED that Dr. Young’s motion to dismiss the
complaint is DENIED.
IT IS FURTHER ORDERED that the remaining defendants’ motion to “join” Dr.
Young’s motion is DENIED.
Dated at Milwaukee, Wisconsin, this 6th day of February, 2017.

s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge

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