by David M. Reutter

The Seventh Circuit Court of Appeals reversed the dismissal of state law negligence claims based upon a prisoner being forced to self-apply a medication that was not supposed to be dispensed to patients. The court, however, affirmed the dismissal of a deliberate indifference claim.

The court’s January 26, 2021 opinion was issued in an appeal brought by Illinois prisoner Sidney L. Peterson. While at Stateville Correctional Center in January 2015, Peterson was prescribed a topical medication known as Podocon-25 to remove genital warts. In accordance with FDA regulations, the packaging stated: “Podocon-25 is to be applied only by a physician. It is not to be dispensed to the patient” (bold in original). It is to be applied sparingly and then removed thoroughly with soap and water because it is a caustic substance. Known adverse reactions are pararthesia, polyneuritis, paralytic ileus, leukopenia, thrombocytopenia, coma, and death.

While Dr. Arthur Davida prescribed the medication, he did not apply it. Neither Sarah Mays, a licensed practical nurse, nor Loreatha Coleman, a registered nurse, applied it. Instead, Mays and Coleman instructed Peterson to apply the medication himself. Peterson sustained, “severe sores on his penis’’ and “permanent injuries and erectile disfunction” as a result.

In January 2016, Peterson filed suit in federal court. His pro se complaint was dismissed with leave to amend. Peterson obtained counsel and filed an amended complaint. That complaint was voluntarily dismissed January 25, 2018.

Nearly a year later, on January 21, 2019, Peterson’s counsel filed a new lawsuit. It included a negligence claim for the first time. The district court granted the defendant’s motion to dismiss on May 23, 2019. It found Peterson failed to sufficiently allege facts to show the defendants had the requisite state of mind to support a deliberate indifference claim. It further held the negligence claim was barred by the statute of limitations. Peterson appealed.

The Seventh Circuit affirmed the dismissal of the deliberate indifference claim. It found Peterson asserted conclusory statements, for he failed to allege that any of the defendants were aware that a substantial risk of serious harm existed and that their “subjective response was so inadequate that it demonstrated an absence of professional judgment.”

The court, however, found error in dismissal of the negligence claim. It noted that Illinois has a two-year statute of limitations for personal injury claims. While two years had elapsed since the new lawsuit was filed in 2019, the district court failed to consider the savings clause in 735 ILCS 5/13-217.

That statute provides that plaintiffs have an “absolute right to refile their complaint within one year” of its voluntary dismissal. Under that savings statute, a plaintiff refiling an action can bring new claims “that arose from the ‘same transaction’ alleged in the prior action.” The negligence claim arose “from a single group of operating facts” as that in the original lawsuit. Thus, Peterson’s claim was timely under Illinois law and it was error to dismiss that claim. See: Peterson v. Wexford Health Sources, Inc., 986 F.3d 746 (7th Cir. 2021). 

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