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29 July 2008

Trial Permitted for Pro Bono Client Claiming Negligent Healthcare and Malpractice

Mayer Brown pro bono client Diego Gil, a federal prisoner in Oxford, Wisconsin, will be permitted to bring suit against a prison doctor, a physician's assistant and the United States for negligence and malpractice under the Federal Tort Claims Act and for the deliberate indifference of prison medical staff to his medical needs in violation of his Eight Amendment rights.

Mr. Gil claims that he was denied proper healthcare services after the prison physician withheld antibiotics for a severe soft-tissue infection and instead prescribed medication that a specialist warned against as having a deleterious effect on Mr. Gil's medical condition.

The district court twice granted summary judgment for the defendants. In the first appeal of the case, the Seventh Circuit Court of Appeals ruled that Mr. Gil had presented a genuine issue of material fact regarding whether prison personnel were deliberately indifferent to his medical needs. On remand, the defendants supplemented the record with new evidence and the district court granted summary judgment for the defendants a second time.

In the second appeal, the Seventh Circuit again reversed, holding that Mr. Gil's failure to present expert testimony did not preclude his ability to demonstrate the appropriate level of care. The court ruled that because there was sufficient doubt to overcome the Eight Amendment claim, he necessarily could do so with respect to the less stringent FTCA claims. Both appeals were handled through the firm's Seventh Circuit pro bono program under the supervision of Marc Kadish and partner Mike Lackey.


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