Written by attorney Jerry David Bischoff



Sheriff Tom Dart is responsible for formulating and supervising the policies, customs, and regulations of the Sheriff's Office of Cook County, Illinois, to ensure that an individual delivered to his custody is provided with prompt medical treatment. David Fagus is the Director of Cermak Health Services of Cook County and as such he is responsible for the day to day functioning of Cermak Health Services. This includes the RTU/Medical Unit which is located in Division 8 of the Cook County Jail. He is responsible for formulating policy at Cermak Health Services. Avery Hart is the Medical Director of Cermak Health Services and, as such, he is responsible for the day to day operations of Cermak Health Services, which includes policy making. These men and their appointees have promulgated what would appear to be reasonable health policies which can be found in the General Orders of the Cook County Jail. However, the written policies are a fiction.

In practice, when a pretrial detainee with a serious medical need is processed into the Cook County Jail he is living on borrowed time. Remember, he or she has not been convicted of a crime. He is presumed innocent until proven guilty. And despite what the general public might believe, sometimes he or she really is innocent. Moreover, I can personally recount countless horror stories of individuals who have been mistakenly arrested on warrants meant for another person merely because a police officer or a deputy sheriff did not bother to compare fingerprints or investigate the arrestee's claims that he is not the individual named in the warrant (with identity theft on the rise, anyone could find themselves the victim in this Kafkaesque nightmare). For example, I once represented a pretrial detainee who spent three months in the Cook County Jail after having been arrested on a warrant bearing his name and date of birth. However, according to the description on the warrant the wanted individual was a foot shorter than my client, weighed more than 100 pounds less, and possessed scars and tattoos that were nowhere to be found on my client's body. How could this happen? Because despite his desperate pleas for help nobody bothered to investigate his claim of mistaken ID. Why? Because at the Cook County Jail no one cares very deeply about your civil rights - and this includes the Cermak medical staff.

When a pretrial detainee arrives at the Cook County Jail he will be screened for medical problems. However, even at this initial stage the jail's practice is likely to lead to constitutional violations that invariably cause actionable injuries. On July 11, 2008, the Civil Rights Division of the Justice Department released the findings of an investigation conducted pursuant to the Civil Rights of Institutionalized Persons Act. This report found that "the initial screenings at the jail take place in an area of the RCDC that is chaotic, noisy, and crowded. The screening interviews often occur while inmates are handcuffed together, resulting in a total lack of privacy, which compromises the quality of the information received."

I have found that even when the screenings are done properly and the detainee is referred to the medical unit, the history taken at this initial stage is never seen by the majority of the medical personnel at Division 8 either because the nurses are knowingly denied access to the records or because they are simply not on site. In fact, the nurses have no access to a detainee's medical records as we shall see below. This makes meaningful monitoring of a detainee's condition virtually impossible and absolutely deprives a nurse from arriving at a nursing diagnosis based on a detainee's complaints. The result is that they don't bother. More than one nurse at Division 8 has told me during depositions that they are not allowed to do anything more than dispense medication.

If a detainee survives the screening process and is assigned to the RT/Medical Unit he will quickly see that the policies and practices there are unconstitutional. Ironically, pretrial detainees housed at Division 8 are located only minutes away from Cermak Health Services which is, (while not equipped to address every medical need) in essence, a full service hospital. And yet, it might as well be miles away for it is very difficult for a detainee to get there. For a pretrial detainee can not simply transport himself to the emergency room. He can't dial 911 and request a paramedic. For he is locked in a dormitory with 25 to 30 other detainees and he is not even allowed to walk to the nurse's station to register a medical complaint, even though the nurse's station is located only a few feet from that dormitory. Even if he is having a heart attack he must first persuade a guard that he needs medical attention. The guard has no medical training. He is overworked and his primary concern is security. At times, due to under-staffing, he is watching more than one dormitory. This is known as "cross-watching" and it is a security breach. Yet, it occurs frequently. In essence, the guard is put in the position of performing a triage function for the medical staff. Not surprisingly, he isn't up to the task. Often the guard will simply not listen to the detainee's complaints or he will advise him to fill out a medical request form known as a "yellow sheet." The "yellow sheet" is a form on which the detainee can write out his medical complaints. The form is then placed in a box and collected in the morning. Clearly, this particular policy creates a built in delay. A sick detainee must wait until the sheet is actually collected and processed. At some point, a nurse is supposed to sort through the reports and prioritize them according to the seriousness of the complaint. The written complaint is then supposed to result in a referral to the doctor. Only, it rarely does. And, to complicate matters, the "yellow sheet" is often unavailable. Furthermore, the medical request form is not picked up every day even though it is supposed to be.

Occasionally, a sympathetic guard will call for a nurse. Then, it is a waiting game. There are never more than three nurses working a single shift at the RT Unit. Sometimes only one nurse is on duty and she must attend to hundreds of inmates. There is a doctor on site, but only during the first eight hour shift. Even when the guard does call for a nurse, there is no guarantee whatsoever that the nurse will come. If she does, she will do nothing more than take a detainee's vital signs. She will not check on the detainee's history or view his medical records. Moreover, she will invariably not even make a record of the detainee's complaint. If she does make a record, it will be placed in one giant log book known as the Nurse's Journal. This one journal is used to record the various medical problems of all of the detainees. It is unlikely that the record will be noticed by nurses on subsequent shifts. No one will follow up with the detainee on subsequent shifts. It will never be placed on a detainee's individual medical chart. It is a random and chaotic practice that falls well below medical standards for record keeping. And it is an unconstitutional practice which practically guarantees disaster.

In many cases the only way a detainee will obtain medical treatment is to "fall out." The expression is commonly used at the jail to describe a detainee who has literally lost consciousness. Even then, the emergency response time is often slow. More often than not, the detainee should have come to the attention of the medical staff long before he has reached this critical stage. However, the jail and medical staff are functioning at substandard levels at every stage pertaining to medical care. It can effectively be alleged at the pleading stage for Monell purposes that the practices and policies of the jail in providing inadequate health assessment, inadequate acute and chronic care, failing to keep proper records, failure to take individual histories, failure to provide adequate staffing and training, and the denial of meaningful access to health professionals caused the detainee to "fall out." See Thomas v. Cook County Sheriff's Department, 604 F.3d 293 (7th Cir. 2010). In other words, it is quite literally the policy of the jail to deny adequate medical care to pretrial detainees in need of immediate treatment until they have no choice but to rush them to the emergency room on a gurney.

See Conclusion

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