Kreisman Law Offices Professional Corporation
Chicago’s 7th Circuit Court of Appeals reversed a ruling that had dismissed a prisoner’s medical malpractice claim against his prison. Inmate Diego Gil brought a suit against the Federal Correctional Institution of Oxford, Wisconsin, claiming negligence and medical malpractice under the Federal Torts Claim Act, along with a violation of his Eighth Amendment rights. Diego Gil v. James Reed, et al., No. 06-1414.
In March 1998 Gil underwent surgical repair of a rectal prolapse. When his condition worsened after the unsuccessful surgery Gil sought medical aid from a physician’s assistant at his prison. But the physician assistant refused to give Gil medical attention, stating he was abusing the facility’s emergency care.
This refusal of care continued for the next year and a half. During that time Gil developed an infection near the surgical site and was denied antibiotics. Gil’s requests to see a specialist were continually denied. When Gil was finally allowed to see a colorectal surgeon he was immediately taken to surgery for rectal prolapse. After his second operation Gil was prescribed specific pain medications and warned against taking Tylenol III as it could cause constipation that would exacerbate his condition. Yet the prison staff refused to give Gil the prescribed pain medications and instead gave him Tylenol III.
At this point Gil filed suit against several of the prison officials for medical negligence and malpractice. He also alleged that the refusal to follow the surgeon’s instructions amounted to a deliberate indifference to his serious medical needs as a violation under the Eighth Amendment of the Constitution.
The prison brought a motion for summary judgment stating that because Gil had not presented an expert he failed to meet the requirements under the Tort Claims Act. Its motion was granted and the case was dismissed. But the appeals court overturned this ruling, stating that the plaintiff was not required to obtain an expert if “an ordinary person could conclude from common experience that he could not have been injured had his medical providers exercised care”.
The prison’s motion for summary judgment was also granted because the trial court felt that Gil had not proved that he was harmed by the physician assistant’s actions. Nor had he made a case for deliberate indifference. The court felt that the prescription of different pain medications could be attributed to differences of opinion regarding his post-surgical care.
These arguments were also overturned by the Appellate Court. It stated that the Eighth Amendment imposes a duty on government officials to provide medical care to prisoners. Gil’s prison violated the Eighth Amendment by its deliberate indifferent to the prisoner’s serious medical needs. Additionally, the district court incorrectly concluded that the plaintiff did not show that he was harmed by the physician assistant’s refusal to fill his antibiotic prescription following his first surgery. Also, the physician was not entitled to summary judgment on the Eighth Amendment claim because on three separate occasions the physician prescribed medication that the surgeon had warned against using.
For over 30 years Kreisman Law Offices has been practicing medical malpractice law in Chicago and in Cook County and the surrounding areas, including Calumet City, Hoffman Estates, Oak Lawn, and River Grove.
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