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Payette v. Hobday

United States District Court, W.D. Wisconsin

May 10, 2016




Pro se plaintiff Allen Payette, an inmate at the New Lisbon Correctional Institution, is proceeding on Eighth Amendment deliberate indifference and state law medical malpractice claims that defendants Robert Hobday (the prison dentist) and Evelyn Killian (a dental assistant) forced him to undergo a surgical dental procedure with an anesthetic to which he was allergic, which caused him heart-related problems.

Defendants have filed a motion for summary judgment, and plaintiff has filed motions for recruitment of counsel and a motion in limine. Both sides have filed motions to stay proceedings in this case. After considering these filings, I conclude that there are disputed issues of material fact precluding resolution of plaintiff’s claims on summary judgment, and that it is appropriate to recruit counsel to assist plaintiff with the complex medical issues raised in the case. Accordingly, I will deny defendants’ motion for summary judgment, grant plaintiff’s motion for counsel, and stay the proceedings in this case. Given my decision to stay the case to recruit counsel for plaintiff, the remainder of the parties’ motions will be denied as moot.


The following facts are drawn from the parties’ proposed findings of fact and supporting evidentiary materials, and are undisputed unless noted otherwise.

Pro se plaintiff Allen Payette is an inmate at the New Lisbon Correctional Institution. Defendant Robert Hobday is a dentist employed by the DOC at NLCI. Defendant Evelyn Killian is a dental assistant at NLCI.

This case concerns plaintiff’s allergic reaction to local anesthetic used during surgical removal of one of plaintiff’s teeth. In September and October 2013, plaintiff saw defendant Hobday, complaining of pain in his teeth. Initially, plaintiff felt pain while eating or drinking, but eventually, the pain was waking plaintiff up at night. Hobday ultimately diagnosed plaintiff with “irreversible pulpitis and gross carries (sic) at tooth #15” and decided that the tooth should be removed.

Defendant Hobday was aware that plaintiff believed he was allergic to lidocaine, a type of local anesthetic commonly used in dental procedures. But the parties dispute precisely what Hobday knew. During a previous appointment in January 2012, plaintiff talked to Hobday about a 2004 incident in which plaintiff had an allergic reaction to lidocaine. Hobday says that plaintiff told him that he experienced throat swelling. Plaintiff says that he also told Hobday that he had difficulties breathing, chest pains, and that his blood pressure dropped.[1] Plaintiff also mentioned an incident in the summer of 2011 in which plaintiff received lidocaine for “an issue with his leg.” Hobday states that plaintiff told him that he had no ill effects from the use of lidocaine during the 2011 incident. But plaintiff says otherwise; after he was injected with the anesthetic, he fell, and nursing staff had to give him an epinephrine injection with an “epi pen” because of plaintiff’s reaction. At a September 2013 appointment, plaintiff completed a medical history form stating that he might have an allergy to lidocaine and that he had a history of chest pain. Plaintiff talked to Hobday about having a history of atrial fibrillation.

At the October 10, 2013 appointment, Hobday discussed treatment options with plaintiff. General anesthetic gas was not available at NLCI. The parties dispute what other options were discussed. Hobday states that he gave plaintiff four options: (1) extract the tooth using local anesthetic, which carried risks because of plaintiff’s allergy; (2) extract the tooth without anesthetic, which could be extremely painful; (3) delay the extraction and treat plaintiff with pain medication until the procedure could be arranged at another facility (presumably with a less risky anesthetic); or (4) do nothing. Plaintiff states that Hobday gave him only two options: (1) extract the tooth using local anesthetic; or (2) extract the tooth without anesthetic.

Plaintiff and Hobday further discussed plaintiff’s allergy. Hobday says that plaintiff was “very vague” about his history of allergies and was unable to remember symptoms he suffered after having an allergic reaction. Plaintiff disputes this, saying that he told Hobday that his throat tightened, his blood pressure dropped, he had problems breathing, and he had chest pains.

Defendant Killian listened to the conversation while she was preparing for the extraction. She says that plaintiff did not make any objections to the use of local anesthetic. But plaintiff says that Killian told him, “I can’t believe [Hobday is] going to use a local anesthetic on you after you told him you are allergic to it.” Plaintiff ultimately signed a form authorizing Hobday to perform the extraction using local anesthetic. Plaintiff states that he felt compelled to do so given his lack of options.

Hobday took precautionary measures: he alerted the Health Services Unit (HSU) that plaintiff might have an allergic reaction and discussed possible responses to a reaction. He also had emergency supplies of oxygen and epinephrine on hand.

Hobday used an anesthetic called Septocaine. I infer from the record that Septocaine is similar enough to lidocaine to raise the possibility that someone allergic to lidocaine could suffer similar allergic reactions to Septocaine. Hobday administered the Septocaine in three separate, smaller doses to gauge whether plaintiff would have an allergic reaction. Plaintiff did not have an immediate reaction, so Hobday continued with the procedure. The surgery took about an hour. Killian assisted Hobday.

Hobday says that he plaintiff did not appear to have any allergic reaction at the time plaintiff left Hobday’s area to wait for his medication in the HSU waiting room. Plaintiff disputes this, stating that he had “fluttering of the heart” during and after the procedure, and that he could not alert Hobday during the procedure because Hobday had his fingers in his mouth. Plaintiff says ...

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