Day says he was de­nied at­ten­tion; judge rules case can pro­ceed.

Dayton Daily News - - FRONT PAGE - By Mark Gokavi Staff Writer

The law­suit by a man who spent five days with a frac­tured pelvis without re­ceiv­ing med­i­cal care in the Mont­gomery County Jail is sched­uled for trial.

The trial in Day­ton’s U.S. Dis­trict Court was con­tin­ued from Feb. 18 un­til July 8 af­ter Judge Thomas Rose ruled the case could con­tinue.

Jef­frey Day, 40, was a pas­sen­ger in a ve­hi­cle that was in an ac­ci­dent in Trot­wood on Nov. 26, 2015. Af­ter ini­tially re­fus­ing med­i­cal treat­ment by Trot­wood first re­spon­ders, Day was booked into jail for ob­struct­ing jus­tice af­ter not an­swer­ing ques­tions cor­rectly. Day was pros­e­cuted, but that case was twice dis­missed.

Day con­tends he re­peat­edly asked for med­i­cal at­ten­tion and those re­quests were de­nied by jail health-care provider NaphCare, EMT Jack Saun­ders and jail per­son­nel. Af­ter his re­lease, Day had surgery.

Rose re­cently ruled that a med­i­cal neg­li­gence count against NaphCare and Saun­ders can con­tinue, as well as a count against those

de­fen­dants and Mont­gomery County for de­lib­er­ate in­dif­fer­ence.

The judge dis­missed claims against Trot­wood po­lice of­fi­cers Kevin Wag­ner and Sgt. Kim DeLong, ex-Sher­iff Phil Plum­mer and other de­fen­dants. Rose also dis­missed some of Day’s other claims.

“We are pleased that the court de­nied NaphCare’s and Jack Saun­ders’ mo­tion for sum­mary judg­ment, but dis­ap­pointed that the Trot­wood of­fi­cers were dis­missed,” plain­tiff at­tor­neys Michael Wright and Doug Bran­non said in a state­ment. “How- ever, we be­lieve we will hold the Mont­gomery County Jail accountable for the ‘de­lib­er­ate in­dif­fer­ence’ ... that lead to his per­ma­nent in­juries.”

A spokesman for the Mont- gomery County Prose­cu­tor’s Of­fice said: “We are pleased that the claims for med­i­cal neg­li­gence and false ar­rest were dis­missed and that no mem­ber of the jail’s cor­rec- tions staff was found to have been de­lib­er­ately in­dif­fer- ent.”

Day frac­tured his right ac­etab­u­lum, the part of his pel- vis that forms the socket of his hip, ac­cord­ing to court doc­u­ments.

“At the time of the colli- sion, Day was in­tox­i­cated, and af­ter the col­li­sion was in tremen­dous pain and shock as a re­sult of the in­jury,” Rose wrote in his rul­ing. “Upon ar­riv­ing at the Mont­gomery County Jail, Day was un­able to walk from the cruiser into the book­ing area unas­sisted.

“The video of this process shows Day un­able to walk prop­erly, un­able to stand on his right leg, and in pain. Even af­ter some- one brought a wheel­chair for Day, he leaned to his left to avoid putting pres­sure on his right hip.”

Saun­ders said in his de­po­si­tion that NaphCare had a pol­icy not to send an in­mate to the hos­pi­tal ex­cept for “life threat­en­ing” in­juries. Saun- ders said he knew Day had been in an au­to­mo­bile acci- dent and re­ported a 10 on a 1-out-of-10 pain scale.

In­stead, Saun­ders ar­ranged for fol­low-up care from a nurse, but no nurse saw Day de­spite his be­ing listed as a pri­or­ity, ac­cord­ing to court doc­u­ments.

In his de­po­si­tion, Day said he twice stood in line for med­i­ca­tion to tell Naph- Care work­ers that he had a se­ri­ous in­jury, but that he was told he could be in the jail for 72 hours without jail per­son­nel hav­ing to pro­vide any treat­ment.

A mes­sage seek­ing com- ment was left with a Naph- Care at­tor­ney.

On Dec. 1, 2015, Day got out of jail and went to Mi­ami Val­ley Hos­pi­tal and had surgery on his hip in an ef­fort for it to heal prop­erly.

“Day suf­fered through five days in the Mont­gomery County Jail with a bro­ken hip without so much as an as­pirin to dull the pain,” ac­cord­ing to court doc­u­ments. “Day now uses a cane to walk.”

In his de­ci­sion, Rose wrote that a doc­tor’s tes­ti­mony said that is stan­dard care for a med­i­cal pro­fes­sional to or­der a CT scan or x-ray for any­one who has been in an au­to­mo­bile ac­ci­dent.

Rose’s rul­ing said tes­ti­mony pro­vided the ba­sis for ju­rors to pos­si­bly con­clude Saun­ders’ con­duct and in­take screen­ing eval­u­a­tion were not rea­son­able, that NaphCare’s pol­icy could be at fault and that the county may be li­able.

Jef­frey Day

Jef­frey Day (top right cen­ter) is aided by a jail em­ployee dur­ing the in­take process in Novem­ber 2015. Day suf­fered a bro­ken pelvis in an au­to­mo­bile ac­ci­dent just be­fore be­ing booked in. Day was in the jail five days without med­i­cal at­ten­tion for his hip.

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