Seventh Circuit Reverses Summary Judgment in Dental Care Suit

by David M. Reutter

On July 19, 2013, the Seventh Circuit Court of Appeals reversed a grant of summary judgment to three defendants, holding there was sufficient evidence for a jury to find they acted with deliberate indifference to a prisoner’s serious dental needs.

Richard M. Smego, a civil detainee at Illinois’ Rushville Treatment and Detention Center, filed suit in federal court alleging that a dentist, two doctors and a dental hygienist had violated his constitutional rights.

When Smego arrived at Rushville, Dr. Jacqueline Mitchell, a dentist who contracts with Wexford Health Sources, examined him in December 2005 and found he had twelve teeth with cavities. She promised to begin filling them in early 2006.

Yet it was not until June 24, 2007 – eighteen months later – that Dr. Mitchell saw Smego again. She provided no care during that visit, and it was not until the next month that she installed a temporary filling in one tooth but did nothing for his most painful tooth. In August 2007, she extracted the painful tooth and prescribed Motrin, a painkiller to which Smego was allergic.

Smego complained to his therapist about his persistent dental pain in November 2007, almost two years after he first saw Dr. Mitchell. The therapist informed Dr. Michael Bednarz, Rushville’s Medical Director, and Mitchell assured him that Smego was receiving appropriate care.

Dr. Hughes Lochard, a Wexford physician who saw Smego for an unrelated medical issue, examined Smego’s teeth. While he said he did not want to get involved in dental issues, he prescribed Motrin for the pain and refused to prescribe any other medication.

Dr. Mitchell did not see Smego again until 2008, when she placed fillings in three of his teeth; three days after that visit, Smego filed his federal civil rights action.The district court granted summary judgment to the defendants and he appealed.

The Seventh Circuit disagreed with the district court’s conclusion that Smego had failed to state viable claims or only alleged negligence by the defendants. The Court of Appeals found a jury could conclude that Mitchell failed “to spare Smego thirty months of serious dental pain by providing the treatment she herself already decided was necessary.” Moreover, “Dr. Mitchell admitted that even five years after she had diagnosed Smego’s cavities she still had not begun treating at least two of them,” the appellate court noted.

There was ample evidence of Mitchell’s personal contact with Smego, which made her aware of his tooth decay and pain. A jury could also conclude, the Seventh Circuit wrote, that what little care Dr. Mitchell provided was inappropriate.

The dental hygienist, Kelly Lawshea, told Smego to not be a “pest” when he spoke to her about his pain and difficulty in obtaining dental treatment. While she could not be held liable for failing to schedule treatment or obtain supplies that were blamed as the cause of the delay in treatment, a jury could find her “pest” statement “discouraged Smego from taking more aggressive steps to receive treatment from the dental office.”

As to Dr. Bednarz, the Court of Appeals found that Smego failed to present sufficient evidence of deliberate indifference. Bednarz took action by contacting Dr. Mitchell, and he was allowed to rely on her representations absent clear evidence that those representations were false. The opposite conclusion was reached as to Dr. Lochard, however. He never contacted Mitchell and did not defer to her, and had also prescribed the ineffective treatment of Motrin. In the latter regard, the Seventh Circuit noted that in a different case, another “Wexford physician repeatedly prescribed ibuprofen (the active ingredient in Motrin) despite a known allergy,” citing Olive v. Wexford Corp., 494 Fed. Appx. 671 (7th Cir. 2012).

The district court’s summary judgment order was vacated as to Mitchell, Lawshea and Lochard, and remanded for further proceedings. See: Smego v. Mitchell, 723 F.3d 752 (7th Cir. 2013).

Following remand, Smego moved to disqualify U.S. District Court Judge Harold A. Baker from presiding over the case. He pointed out that Judge Baker had dismissed two of his lawsuits, both with findings that an appeal would be in bad faith. Both times, Smego appealed and the Seventh Circuit remanded the cases to the district court. Further, in one of those cases, Judge Baker had stated during a hearing that he wouldn’t believe Smego “on a stack of Bibles.” The judge also told the jurors after they ruled for the defendants that they had “vindicated” him, apparently referring to his prior dismissal of the case.

Judge Baker granted Smego’s motion and recused himself on January 31, 2014. Smego subsequently settled his claims against Lawshea and Dr. Lochard in May 2014, while his claims against Dr. Mitchell are scheduled for trial on July 15, 2014. Notably, Smego litigated this case pro se, including on appeal. See: Smego v. Adams, U.S.D.C. (C.D. Ill.), Case No. 3:08-cv-03142-SEM-TSH.

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