NORMAN MASTERSON v. THE STATE OF ILLINOIS (2001)

OPINION

Claimant, Norman Masterson, filed his Complaint sounding in medical negligence on January 2, 1992. Claimant has alleged that in 1991 while incarcerated with the Illinois Department of Corrections, he was diagnosed as needing hernia surgery. Claimant has further alleged that the Department of Corrections refused to perform the surgery although it was recommended by a physician, which caused him pain and suffering. The cause was tried before Commissioner Whipple.

The evidence consists of the Claimant's testimony, the stipulated testimony of Dr. Robert Holstein, Claimant's expert, and Dr. A.D. Mesrobian, Respondent's expert. The Respondent also filed a Departmental Report and a Supplemental Departmental Report.

The Facts

The Claimant testified that while an inmate at Illinois River Corrections facility, he complained frequently about abdominal pains beginning in the late summer of 1990.The cause of this pain was eventually diagnosed by the medical personnel at Illinois River as a hernia. According to the Claimant, he was given pain medication on an every day basis. Eventually, the medical personnel suggested surgery to repair the hernia.Claimant inquired about this surgery on a frequent basis and finally during the month of November, 1990, the surgery was scheduled. However, rather than undergo the surgery, Claimant signed a refusal for the surgery on November 16, 1990. According to Claimant, he refused surgery because an unnamed nurse had told him he would need to stay longer in prison if he had the surgery and he anticipated an out date (release) sometime in December of 1990. Claimant admits that this was not an official release date, just an anticipated release date in his mine, and understandably Claimant did not want to stay in prison any longer than required. Claimant, as a result, chose not to have the surgery.

Claimant was not released when he hoped to be released and after being involved in some trouble, he was transferred to Dixon Correctional facility in January of 1991. While at Dixon, he again began to complain of abdominal pain. The records reflect that he saw medical personnel on February 2, 6, 11, 15, 18, and 23 of 1991. During these visits, he was evaluated for an umbilical and ventral hernia and it was the opinion of the medical staff during those visits that emergency surgery was not required. Claimant was seen again in March of 1991 at which time it was determined that there was no enlargement, no change, and to continue conservative treatment. Claimant was released from prison on March 28, 1991. Two months thereafter, Claimant made his first appointment at Chicago Osteopathic Hospital for evaluation. Eventually, on June 7, 1991, Claimant's hernia was repaired as elective outpatient surgery without any resulting complications. He was discharged the same day as the surgery. Claimant testified he would not go to a county hospital for surgery and waited until his medical insurance was in force before having the surgery.

Claimant's expert was Dr. Robert Holstein. His stipulated testimony was:

1. Qualifications. That he is a physician licensed to practice in the State of Illinois. That he is a board-certified internist in general practice at Northwestern Memorial Hospital and has been in practice for in excess of 20 years. His offices are currently located at 150 E. Huron, Suite 1101, Chicago, Illinois 60611. He would testify additionally in support of his CV attached hereto and made a part hereof.

2. Documents Review. Dr. Holstein would testify that he had reviewed Norman Masterson's medical records from Illinois River and Dixon Correctional Center as well as the records of treatment from Olympia Fields Osteopathic Medical Center in Olympia Fields, Illinois. He would testify that the Illinois River records indicated that Norman Masterson first complained of abdominal pain in August of 1990. At that time, the doctor noted that Norman Masterson had an umbilical hernia. Norman Masterson continued to complain of abdominal pain to the medical staff during September and October of 1990. Norman Masterson was transferred to Dixon Correctional Center in January of 1991 where he was again diagnosed with an umbilical hernia and continued to complain of pain and to demand surgery repeatedly. Surgical treatment was not rendered. Subsequently in June of 1991, his abdominal hernia was repaired at Olympia Fields osteopathic Hospital and complex surgery was needed using mesh to fix his hernia. This occurred after release from the Illinois Department of Corrections.

3. Conclusion and Opinion. That the doctors in question at the Illinois Department of Corrections deviated from the standard of medical care by not performing surgery and that this opinion is made to a reasonable degree of medical certainty. This opinion is based on the review of records as set forth above and based upon the facts in that record that the patient experience (sic) severe abdominal pain from August 1990 through February of 1991. The source of this pain was undisputed abdominal hernia despite this fact the medical staff never performed surgery to correct the problem. The delay in performing surgery caused Norman Masterson unnecessary pain and suffering.

Respondent's expert testimony was that:

I. Antreas Mesrobian, I am the Medical Director at Dixon Correctional Center. I have been licensed to practice medicine in Illinois as of 1979. I have graduated Medical School in 1967. I am Medical Director of Dixon Correctional Center as of 1983.

Review records: According to medical record, Mr. Norman Masterson had mentioned about his hernia only on August, 1990. He has had several visits to Health Care Unit. Eventually he was scheduled to have surgery in Illinois River CC approximately October, 1990. Patient refused to have surgery at that time. He was transferred to Dixon Correctional Center January 28, 1991. Immediately after arriving to Dixon he has been seen by physician 2/2/91. At that time evaluated for umbilical and ventral hernia. Patient was evaluated - no lifting for 2 months, abdominal binder and follow-up for a month was given. On 2/6/91, patient had gone to Sick Call and he requested to have surgery done. 2/11/91, again he visited Sick Call demanding surgery. He was seen again 2/15/91 again requesting hernia surgery. He was evaluated at that time, noticed umbilical hernia and ventral and surgery consultation was ordered. Lay in requested by a nurse because of abdominal discomfort and pain. His vitals, blood pressure, everything was within normal limits. He was assessed. On 2/18/91, he was seen again complaining from pain. On 2/18/91, patient had mentioned to the nurse that he was to have the surgery by 3/28/91 otherwise he is going to file a lawsuit. He has been seen again 2/19/91 complaining from the same thing. He has seen a physician 2/21/91. Patient referred to Medical Director for evaluation. He was seen by surgeon 2/23/91 and surgeon has not mentioned any emergency surgery but advised repair of the hernia. 2/28/91, he has seen a nurse asking when he is going to have his surgery. Seen again by a physician, he was evaluated but noted that he has ventral and umbilical hernia both reducible. No emergency. Eventually he was seen again 3/21 by Medical Director. At that time it was noticed that there is no enlargement, no change. To continue conservative treatment and if problemgets worse or if strangulation or incarceration, will consider surgery. Patient left Dixon 3/28/91.

I cannot find any appointment with physician or any surgery done prior 6/4/91. In June 4, 1991, he had pre-surgical evaluation. Interesting enough, during that evaluation patient mentioned he has very little pain, no pain during exercise or walking or any other activity. In Discharge Summary made by surgeon, the patient has mentioned that he had very little pain, no pain during exercise, walking or any other activity. Patient had repair of hernias as elective surgery. During surgery the surgeon decided to use a mesh. It was not a complex surgery, no complications and surgery lasted only 50 minutes.

As Medical Director in Dixon Correctional Center, I did not see any emergency to go ahead with surgery electively and I have explained to the patient that if, in the future there would be need of surgery I would reconsider but because the patient was going to be discharged 3/28/91 which I do not know, usually medical staff does not know, patient was demanding to have his surgery as soon as possible.

The Law

An inmate who files a claim against the State alleging medical malpractice must prove by a preponderance of the evidence through expert testimony, a breach of duty, the standard of care required, that Respondent deviated from the standard of care, and that the deviation was a proximate cause of the claimant's injury. Pink v. State of Illinois, (1991), 44 Ill.Ct.Cl. 295; Baker v. State of Illinois, (1994), 47 Ill.Ct.Cl. 407. The claimant must establish the standard of care. Thomas v. State of Illinois, (1987), 40 Ill.Ct.Cl. 188; Bock v. State of Illinois, (1991), 43 Ill.Ct.Cl. 299.

The Claimant's expert's stipulated testimony fails to establish the standard of care and fails to establish a basis for the opinion of a deviation from the standard of care in light of the Respondent's expert's opinions that surgery was not required on an emergency basis.

Claimant's credibility is sorely lacking in that he did refuse the surgery in November of 1990. While Claimant's explanation for waiting until June, 1991, for the surgery is plausible, it certainly contradicts his claims of pain since there is no record of his seeking medical care or treatment from March 28, 1991, until June 4, 1991. Claimant's surgery in June, 1991, was elective, without complications, and of short duration. The Claimant has the burden of proof. In hindsight, it most likely would have been better to have more complete testimony from Dr. Holstein. However, Claimant chose to proceed with three paragraphs of stipulated testimony. We find that the limited expert testimony does not satisfy the requirements of Baker, supra, to establish a medical negligence claim by a preponderance of the evidence.

Additionally, Claimant has failed to prove his damages by a preponderance of the evidence as to pain and suffering. We have previously addressed Claimant's lack of credibility. It is also important to note Claimant's clinical history of June 4, 1991, at Chicago Osteopathic Hospital and Medical Center. That history states: Patient presents with abdominal hernia pre-operatively. Patient states that the hernia occurred 1 1/2 years ago. Patient experiences a little pain after eating. Patient denies pain with exertion, walking or other activity. Patient denies any weight loss/gain. Patient states the surgery was postponed until now because he was told that he was too fat.

Claimant's testimony concerning his pain and suffering was impeached by the clinical history and discharge summary from his care and treatment outside the Department of Corrections. Claimant has failed to meet his burden of proof.

For the foregoing reasons, it is the Order of the Court that Claimant's Complaint be and hereby is denied.

FREDERICK, J.