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7th Circuit reverses dismissal of prisoner’s suit

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A lawsuit filed by a prisoner at the Pendleton Correctional Facility against two prison doctors and a nurse after he learned he had prostate cancer is allowed to continue after the 7th Circuit Court of Appeals reversed the dismissal of his suit.

The District Court dismissed Eugene Devbrow’s 42 U.S.C. Section 1983 suit for deliberate indifference to serious medical needs in violation of the Eighth Amendment for being untimely. Devbrow alerted prison officials of his need to be tested for prostate cancer within two to four years when he entered the prison system. In February 2004, a PSA test showed an elevated PSA but Dr. Eke Kalu did not order a biopsy until April 2005. A follow-up biopsy six months later revealed Devbrow had prostate cancer that had spread to his spine, severely limiting his treatment options.

Devbrow filed his lawsuit Oct. 19, 2007, but Judge Larry McKinney dismissed it as untimely, reasoning that Devbrow should have filed his suit within two years of April 2005 when the biopsy was ordered. On appeal, the defendants contend the deliberate indifference ended in April 2007, so Devbrow could have sued for nominal or presumed damages even without a physical injury.

But Devbrow’s suit seeks redress for a concrete physical injury, not probabilistic future harm or an abstract injury, the 7th Circuit pointed out in Eugene Devbrow v. Dr. Eke Kalu, et al., 12-2467.

“The statute of limitations for a § 1983 deliberate-indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause. Judged by that standard, Devbrow’s suit is timely,” Judge Diane Sykes wrote. “He did not know of his injury in April 2005 when the defendants finally ordered a biopsy; he discovered it six months later when he learned he had cancer that might have been diagnosed and treated earlier but for the defendants’ deliberate indifference. The limitations period runs from that discovery, and Devbrow filed suit just before the time expired.”

 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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