BURL MASON JR v. THE STATE OF ILLINOIS (2001)

OPINION

This cause is before the Court on Claimant Burl Mason's Complaint seeking $150 from Respondent State of Illinois for denial of medical treatment or access to smoking cessation therapy while incarcerated by the Department of Corrections (DOC) for nicotine addiction. The claim, sounding in tort, was filed pursuit to Section 8 (d) of the Court of Claims Act. 705 ILCS 505/8(d) (1996).

The Complaint alleges that Claimant has been a heavy smoker for 26 years and is having difficulty getting air into his lungs. His request for Zyban tablets and nicotine patches or the development of a smoking cessation program was turned down by medical personnel at Stateville Correctional Center (SCC). A hearing was conducted at which Claimant appeared and testified.

The Facts

Claimant testified that he has difficulty breathing, especially when he is sleeping. He said Dr. Joseph Smith; the Medical Director of the Health Care Unit (HCU) at SCC informed him that he was not suffering from apnea. Dr. Smith told him the breathing problem was caused by smoking and advised him to quit smoking. He stated that the Medical Director told him he would make a written request to Dr Elliot at the central administration office for some type of assistance. Claimant did not see the written request. No product or services were provided.

At the hearing, Claimant indicated he no longer was requesting Zyban because it would conflict with his epilepsy. He wants nicotine patches to aid in the nicotine withdrawal problems.

On cross-examination Claimant stated that he was smoking since he was 14 years old and was smoking before he came into SCC; He acknowledged receiving smoking cessation information from Ms. Battaglia; the Smoking Cessation Coordinator, about stopping smoking. The four-page document, apparently produced by the American Heart Association, is attached to the Complaint.

Claimant was confined to the HCU Infirmary at the time of the hearing and apparently had been a patient there for long periods of time. The Non-Smoking Policy of the HCU Infirmary is stated in a September 10, 1998, Memorandum. The Policy states that patients may only smoke when they are in the yard.

On August 1, 1999, Claimant filed a Grievance stating that he was only allowed yard privileges of three one hour periods each week. He requested that a Smoking Cessation Therapy Program be set up for inmates that desired to quit smoking. The Grievance Officer (GO), in reliance upon a September 13, 1999, Memorandum from Dr. Smith, recommended that the Grievance effectively be denied. Dr. Smith had reported that SCC does not have a program for smoking cessation. The GO recommended that Claimant should write to Dee Battaglia, the Smoking Cessation Coordinator, who can supply him with literature regarding his concerns. The recommendation was concurred in by the Chief Administrative Officer and affirmed by the Administrative Review Board.

Claimant indicated that no one at SCC has ever received nicotine patches. He presented a copy of a memorandum discussing the State of Florida Department of Corrections Nicotine Addiction Program. According to the memorandum, a Florida prisoner sued prison officials for failing to provide him with any type of treatment to help him stop smoking. The Florida Department of Corrections settled the suit. Under the terms of the settlement, the prisoner was given a two month nicotine treatment program, including a prescription for Zyban or nicotine patches. As a result of the suit, Florida now offers a smoking cessation program for its prisoners. Dr. Kurian, the SCC Staff Physician, testified that SCC does not offer any Smoking Cessation Therapy, or Zyban or nicotine patch prescriptions. He indicated that the use of Zyban and nicotine patches cause side effects, therefore they are not prescribed. He described the potential side effects as causing cardiac, renal and liver problems.

The Law

Claimant has not provided the citation of any case which would provide support for his cause of action. The Florida Case was a voluntary settlement and as such is not a legal precedent for his case. The record does not make it clear whether the treatment or therapy sought by Claimant is medical treatment or another service program offered for the benefit of inmates. The Court will consider Claimant's case under both theories. It appears that to the degree Claimant is seeking services or products that are only provided under the orders or supervision of medical personnel, i.e. provision of nicotine patches, then he is seeking medical services. This Court has held on numerous occasions that the State owes a duty to provide inmates with reasonable medial care. Koss v. State (1999), 51 Ill.Ct. Cl. 98 (citing Bynum v. State (1992), 44 Ill.Ct. Cl. 1). The failure to provide timely medical attention may constitute negligence. Koss at 111 (citing Davidson v. State (1983), 35 Ill.Ct. Cl. 825).

In order to sustain a claim of medical negligence against Respondent, the Claimant must prove by a preponderance of the evidence the standard of care, that Respondent deviated from the standard of care, and the deviation from the standard of care was a proximate cause of the Claimant's injuries. Koss at 111 (citing, Olivares v. State, (1995), 47 Ill.Ct. Cl. 424; Cleckley v. State (1994), 47 Ill.Ct. Cl. 235). Normally, expert testimony is required to prove the elements of a Claimant's medical negligence claim, Koss at 111 (citing Robinson v. State (1994), 47 Ill.Ct. Cl. 364).

Claimant has testified that he wants to quit smoking, but is unable to quit without treatment or therapy. He points to the alleged addictive nature of nicotine and the side effects caused upon withdrawal from use as the reason he needs the services. Even if the Court accepts the proposition that nicotine is addictive and withdrawal causes side effects, this record makes it difficult to justify the relief sought by Claimant.

In Koss, the Claimant presented a medical doctor that testified to the standard of care necessary for attempting to treat the medical condition of the Claimant. The Court granted an award in Koss based, in part, on the expert's testimony that Respondent's agents deviated from the standard of care. The lack of evidence proving a standard of care under the circumstances present, make it impossible for Claimant to prove that Respondent deviated from the standard of care. 51 Ill.Ct. Cl. 98, 107-8. Similarly, the Court entered an award in Whitehead v. State (1998), 50 Ill.Ct. Cl. 287, wherein the Claimant, suffering from Bell's Palsy, alleged that Respondent had not properly treated his condition. The Court relied on the testimony of Claimant's expert to support the finding that the standard of care was breached by Respondent. Id. at 290-1.

In contrast to the foregoing cases making an award wherein expert testimony was presented, the Court in Olivares v. State (1995), 47 111 Ct Cl 424, denied relief because Claimant did not provide medical evidence on the standard of care or Respondent's deviation, from the standard of care. See, also Johnson-Bey v. State (1996), 49 Ill. Ct. Cl. 115 (claim denied absent medical expert testimony).

In the case at bar, Claimant has not provided any expert evidence that would establish a standard of care in his situation The Court notes that Claimant's injury is not well defined in this record. Dr. Kurian testified that nicotine patches are not provided because of the potential side effects. There is no evidence, which the Court could rely upon to determine that Claimant's medical condition warrants, or could be tolerated, by any specific treatment.

The Court is mindful that Claimant apparently is caught in a Catch-22. He states that he can not stop smoking, but the circumstances do not allow him to smoke. His medical condition, apparently caused to some degree by epilepsy, breathing problems or a combination of the two, cause him to be confined to the HCU Infirmary where smoking is not allowed. According to the policy of SCC, patients would only be allowed to smoke during three one hour periods each week. Claimant did not clarify how this situation has been resolved, if at all, or assert any suffering because of being deprived of the availability of smoking.

For these reasons, the Court finds that Claimant does not establish proximate cause between his injury and some conduct or omissions by the Respondent. To the extent Claimant complains that respondent is liable under a theory of medical negligence, such claim is denied.

In relation to the specifics of Claimants Grievance, requesting that Respondent create a Smoking Cessation Therapy Program, the Court looks to other precedent to analyze this claim. It appears that Claimant's request is premised on the presumption that this would be a good policy for the DOC to implement because it would help inmates. The evidence indicates that no such program exists and Respondent does not assert a reason for the absence of the program, although Claimant alleges that it must be a budgetary concern.

A review of the Court's case law reveals that the decision to develop policies effecting prison populations is within the administrative discretion. Absent statutory direction for the creation of a program, which does not appear in the Unified Code of Corrections (730 ILCS 5/1- 1-1, et seq.), the DOC has the discretion to establish programs or policies not inconsistent with existing statutes.

The jurisdiction of this Court is limited by statute as found in Section 8 of the Court of Claims Act. 705 ILCS 505/8. Complaints challenging actions or omissions within the administrative discretion of DOC fail to state a claim upon which relief can be granted: Hassen v. State (1997), 49 Ill.Ct. Cl. 134 (citing Holmes v. State (1978), 32 Ill.Ct. Cl. 275). In White v. State (1996), 49 Ill.Ct. Cl. 187, the Court stated that it does not have the authority to interfere with disciplinary procedures in place at SCC and their application to the Claimant because they are matters of administrative discretion of the institution.

The Court does not address the issue of whether or not a Claimant may in the future be able to establish a cause of action upon which relief may be granted for the development of a policy or practice that is predicated upon health concerns or conditions of inmates. However, based upon the record in this case, Claimant's request that the referenced Program be created is hereby denied for the failure to state a cause of action upon which relief may be granted.

For the foregoing reasons, this claim is denied.

RAUCCI, C.J.