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Estate of Richardson v. Correctional Healthcare Companies Inc.

United States District Court, E.D. Wisconsin

July 27, 2016

ESTATE OF MARK RICHARDSON, by its Special Administrator Justin Richardson, Plaintiff,


          J.P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On June 3, 2016, the defendants filed a motion for summary judgment along with a supporting memorandum, statement of facts, and an affidavit of counsel with various attached exhibits thereto.[1] (Motion, Docket #26; Memorandum in Support, Docket #27; Statement of Fact, Docket #28; Declaration of Steven T. Elmer, Docket #34 with Exhibits 1-6). On June 30, 2016, the plaintiff Estate of Mark Richardson (“Richardson” or the “Estate”)[2] timely filed a response in opposition to the motion, along with a response to the defendants’ statement of facts, an additional statement of facts, affidavits of expert witnesses, and an affidavit of counsel with various exhibits attached thereto. (Response, Docket #36; Response to Statement of Facts (“RSOF”), Docket #39; Additional Statement of Facts, Docket #40; Declaration of Travis Webb, Docket #37; Affidavit of Suzanne L. Ward, Docket #38; Declaration of Thomas C. Lenz, Docket #41 with Exhibits 1-39). On July 14, 2016, the defendants filed a reply in support of their motion, along with a response to Richardson’s statement of facts, a reply in support of their own statement of facts, and additional affidavits of counsel with attached exhibits. (Reply, Docket #44; Response to Additional Statement of Facts (“RASOF”), Docket #46; Reply to Response to Statement of Facts (“RRSOF”), Docket #47; Declaration of Steven T. Elmer, Docket #45 with Exhibits 1-3; duplicate Declaration with additional exhibits, Docket #49 with Exhibits 1-3).[3] The motion is fully briefed and, for the reasons explained below, it will be denied in its entirety.


         Federal Rule of Civil Procedure 56 provides the mechanism for seeking summary judgment. Rule 56 states that the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A “genuine” dispute of material fact is created when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). In assessing the parties’ proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Authority, 618 F.3d 688, 691 (7th Cir. 2010). It is important to note that internal inconsistencies in a witness’ testimony “create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all.” Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)). The non-movant “need not match the movant witness for witness, nor persuade the court that [their] case is convincing, [they] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         3. RELEVANT FACTS

         The Court will provide a timeline of events, as well as other relevant factual topics, noting the parties’ disagreement where appropriate. In accordance with the standard of review, the facts and inferences therefrom are construed in Richardson’s favor.[4]

         3.1 Richardson’s Medical History

         In May 2012, Richardson was incarcerated at the Racine County Jail (the “Jail”). RSOF ¶ 3.[5] Prior to his incarceration, Richardson was diagnosed with numerous medical issues. RRSOF ¶ 6. These included liver cirrhosis, diabetes, coronary artery disease, and multiple sclerosis. RRSOF ¶ 6. The parties disagree on the nature of Richardson’s splenomegaly (spleen enlargement). The defendants claim that Richardson’s spleen was chronically enlarged, while Richardson asserts that it was the result of acute trauma. RRSOF ¶ 6. Richardson took medication for some of these ailments; the parties dispute which ailments were medicated. RSOF ¶ 7.

         Richardson reported various injuries prior to October 12, 2012. On September 28, 2012, Richardson reported to Seitz that he had been kicked in the side. RASOF ¶ 1. She took his blood pressure but did not document the interaction, despite recognizing that doing so was important. RASOF ¶ 1. On October 3, 2012, Richardson reported that he had fallen three times in the past few days. RASOF ¶ 2.

         3.2 Night of October 12, 2012, and Morning of October 13, 2012 3.2.1 Haubrich’s 10:00 p.m. Visit

         At approximately 10:00 p.m., Haubrich was working the evening shift when she was called to the cell block where Richardson was housed. RRSOF ¶ 11; RASOF ¶ 3.[6] She responded within five minutes. RASOF ¶ 4. Her testimony is conflicted as to whether she believed the situation was an emergency, or was merely told so by jail staff. RASOF ¶ 4. When she arrived there, Richardson was seated on a toilet in the cell block bathroom with a number of correctional officers present. RSOF ¶ 12. Haubrich waited for jail staff to get him off of the toilet before she entered. RSOF ¶ 12. Prior to entering, Officer Todd Kosterman (“Kosterman”) told Haubrich that Richardson complained of dizziness, seeing spots, pain in his stomach and chest, and difficulty walking and breathing. RRSOF ¶ 13; RASOF ¶ 5.

         Haubrich then entered the bathroom, and Richardson recounted the symptoms relayed by Kosterman. RASOF ¶ 6. Richardson also mentioned that he had liver problems. RASOF ¶ 11. Haubrich did not see Richardson’s skin tone, but Kosterman observed that it was yellowish. RASOF ¶ 7. Richardson needed assistance to stand and had difficulty walking. RASOF ¶ 7. Haubrich contradicts herself as to whether she asked Richardson about pain, but she and Kosterman observed him apparently in pain and hunched over. RASOF ¶ 9-10. He was not sweating or out of breath and was otherwise polite with Haubrich. RSOF ¶ 14; RASOF ¶ 11. Officer Connie Taylor (“Taylor”) was also present and observed Richardson’s yellowish skin tone, which was different than it had been earlier, and that he looked weak and ill. RASOF ¶ 8. Taylor later noted in the activity log that Richardson “was feeling dizzy, seen [sic] spots and found it hard to breath” and that “his stomach hurt through his chest.” RASOF ¶ 14.

         Haubrich did not take Richardson’s vital signs or otherwise perform a nursing assessment. RASOF ¶¶ 12, 19. Knowing that Richardson was diabetic, Haubrich suspected that he had either low blood sugar or mere indigestion. RSOF ¶ 15; RASOF ¶ 5. When his blood sugar test was normal, Haubrich determined that Richardson needed further assessment. RSOF ¶¶ 16-17; RASOF ¶ 12. She did not have with her the equipment to take his vital signs, so Haubrich directed the officers to place him in a medical observation cell. RSOF ¶ 18; RASOF ¶ 19, 21.[7] She did not give the officers instructions on what to watch for with Richardson’s condition. RASOF ¶ 21. Richardson did not appear able to walk, so Haubrich requested a wheelchair. RASOF ¶ 22.

         Haubrich did not document her interaction with Richardson, despite the fact that CHC policy required it and that she knew that she should have done so. RASOF ¶ 13. Haubrich did not give Richardson any medication or other treatment to relieve his pain and dizziness. RASOF ¶ 18. She did not call an on-call doctor regarding Richardson’s condition, but the parties dispute whether this was required by CHC policy. RASOF ¶ 20. Though Haubrich never performed a nursing assessment on Richardson, she believed one was necessary. RASOF ¶ 25.

         3.2.2 The Nurses’ 11:00 p.m. Meeting

         After directing the jail staff to take Richardson to observation, Haubrich left to finish passing medication to the other inmates. RRSOF ¶ 19; RASOF ¶ 23. She believed this would only take ten to fifteen minutes. RRSOF ¶ 19. Haubrich returned to the medical office at 11:00 p.m., where she met Seitz. RRSOF ¶¶ 19-20; RASOF ¶ 24.

         The parties again disagree on Haubrich’s assessment of Richardson’s situation as an “emergency.” Richardson points to Haubrich’s testimony that she believed he needed further assessment before declaring it an emergency. RASOF ¶ 26. The defendants cite to her testimony immediately prior where she agreed that Richardson was not having an emergency which required immediate hospitalization. RASOF ¶ 26. Nevertheless, Haubrich knew that Richardson could remain in pain until he was seen again by her or another provider. RASOF ¶ 27. She at least thought that Richardson’s statements were truthful; Haubrich did not believe that Richardson was faking his symptoms. RASOF ¶ 28.

         The defendants assert that the Nurses agreed to have Seitz assess Richardson, while Richardson points out their conflicting testimony. RRSOF ¶ 20; RASOF ¶ 30. Haubrich testified that Seitz volunteered to assess Richardson, and that Haubrich conveyed urgency about Richardson’s health. RRSOF ¶ 20; RASOF ¶¶ 31, 35. Seitz, however, claims that Haubrich asked her to perform the assessment and failed to convey any urgency, instead stating that it could be done at some point in Seitz’s shift. RRSOF ¶ 20; RASOF ¶¶ 32, 36. The parties agree that Haubrich related Richardson’s symptoms to Seitz and that she must have told Seitz that no nursing assessment had been performed. RASOF ¶ 34. Haubrich definitely told Seitz that no vital signs had been taken. RASOF ¶ 35. The parties dispute Seitz’s knowledge of Richardson’s ongoing pain. RASOF ¶ 34. The parties further dispute when Haubrich actually left the Jail after her shift, and when Seitz went to the inmate housing area. RRSOF ¶ 11; RASOF ¶ 37.

         3.2.3 Seitz’s 1:30 a.m. Visit

         Seitz usually received a report on an inmate’s condition from correctional officers before going to see the inmate. RASOF ¶ 43. Sergeant Bradley Friend (“Friend”), the officer who went with Seitz to see Richardson, stated that another officer told him that Richardson was moved to the observation cell due to shortness of breath and some other “malady.” RASOF ¶ 44.[8] Friend did not tell Seitz about this, however. RASOF ¶ 44.

         Seitz visited Richardson at approximately 1:30 a.m. RRSOF ¶ 21. Friend noticed that Richardson’s skin was yellowish. RASOF ¶ 45. Seitz asked about Richardson’s pain level, and a still frame taken from the cell surveillance footage appears to show her pointing to his chest, though the defendants claim the picture is too blurry to tell. RASOF ¶ 46. Richardson did not sit up when Seitz met with him. RASOF ¶ 47. The parties again dispute Seitz’ knowledge of Richardson’s pain. Richardson claims that she testified to that effect, while the defendants counter that her knowledge was indirect; her only recollection was that she gave him pain medication so he must have been in pain. RASOF ¶ 47.

         Seitz’s notes show that Richardson complained of moderate lower right-side rib pain. RRSOF ¶ 21; RASOF ¶ 48. Richardson further told Seitz that he had stomach pain, dizziness, and a history of liver cirrhosis. RRSOF ¶ 21; RASOF ¶ 48. While Seitz did not note stomach pain specifically, she did list his reported pain level as “5-6“out of ten. RASOF ¶ 48. Richardson was not wearing a shirt during their meeting, as shown on the surveillance footage, but Seitz cannot recall if his stomach was distended. RASOF ¶ 53.

         Seitz took Richardson’s vital signs and blood sugar; except for the blood pressure reading, the parties agree that they were within the normal range. RRSOF ¶¶ 22-23; RASOF ¶ 54. The defendants assert that the blood pressure reading was 128/78, which is within normal limits. RRSOF ¶¶ 22-23. Richardson counters that Seitz originally wrote 128/58, and the “5” in that entry was later overwritten with a “7.” RRSOF ¶¶ 22-23; RASOF ¶ 55. Neither party has offered evidence of when the “7” was written or by whom. Seitz used her personal wrist blood pressure cuff to perform the test rather than a manual, upper arm cuff, which was available to her at the Jail. RRSOF ¶ 22; RASOF ¶¶ 57, 58. She did not know how often she calibrated her wrist cuff and knew it could give a reading inaccurate by as much as five points. RRSOF ¶ 22; RASOF ¶¶ 57, 59. Seitz did not press on Richardson’s belly or listen to his bodily sounds with a stethoscope. RASOF ¶ 49. She did not take his temperature. RASOF ¶ 52.

         Seitz gave Richardson Tums and Tylenol, noted that she would review the situation with a doctor “for further order, ” and left Richardson in the observation cell. RSOF ¶¶ 24-25; RASOF ¶ 60. Seitz’s usual practice was to offer Tums to anyone with stomach-area pain. RASOF ¶ 61. Seitz, believing that Richardson’s first set of vital signs were normal, decided to take a second set during her morning medication pass. RRSOF ¶ 26. The parties again dispute whether his blood pressure was in fact normal. RRSOF ¶ 26.

         After the 1:30 a.m. visit, Seitz returned to the medical office and, if she had followed her normal practice, would have reviewed his medical chart which contained notes on his previous blood pressure readings, the September 28, 2012 trauma, and the October 3, 2012 falling incidents (she could not recall actually doing so). RASOF ¶ 66. Because she did not review the chart until after her visit, Seitz did not have notice that Haubrich had failed to document her interaction with Richardson. RASOF ¶ 39. The parties dispute whether Seitz would have called a doctor immediately had she known the full scope of Richardson’s symptoms. RASOF ¶ 40. Richardson claims that she would have, while the defendants counter that she said so hypothetically, and in any event did not have access to the correctional officer log which fully recounted Richardson’s symptoms. RASOF ¶¶ 40, 68.

         3.2.4 Richardson’s Death and Aftermath

         Surveillance footage showed Richardson tossing, turning, and sitting up and down until approximately 4:30 a.m., when he stopped moving entirely. RASOF ¶ 96. Seitz found Richardson dead at 5:50 a.m.; she and other jail staff found him unresponsive and were unsuccessful in their attempts to revive him. RSOF ¶ 27; RASOF ¶ 62. Wisconsin state law required jail staff to visually check on Richardson every hour, but they did not report anything unusual about his condition between the 1:30 a.m. assessment and 5:50 a.m. RSOF ¶ 28. Still, Seitz never contacted jail staff to see how Richardson was doing. RASOF ¶ 65.

         On October 13, 2012, Jean Short (“Short”), the CHC contract manager, told James Olstinske (“Olstinske”), the Nurses’ supervisor, that Richardson had fallen then died in his sleep. RASOF ¶ 71. On November 6, 2012, CHC administrative staff met with Olstinske and Short for a regular health services meeting. RASOF ¶ 94. During the meeting, Racine County Sheriff’s Department Captain Doug Wearing discussed the policy and procedure for passing information to the jail staff regarding what to watch for in an inmate’s condition when the inmate is sent for observation. RASOF ¶ 94.

         3.3 Opinions on Richardson’s Treatment ...

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