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.
WATCH: Man who claims he spent 5 days in jail with broken pelvis sues police, sheriff
“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. “However, we believe we will hold the Montgomery County Jail accountable for the ‘deliberate indifference’ … that lead to his permanent injuries.”
A spokesman for the Montgomery 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 corrections staff was found to have been deliberately indifferent.”
Day fractured his right acetabulum, the part of his pelvis that forms the socket of his hip, according to court documents.
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“At the time of the collision, 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 someone 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. Saunders said he knew Day had been in an automobile accident and reported a 10 on a 1-out-of-10 pain scale.
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Instead, Saunders arranged for follow-up care from a nurse, but no nurse saw Day despite him being listed as a priority, according to court documents.
In his deposition, Day said he twice stood in line for medication to tell NaphCare 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 comment was left with a NaphCare 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.
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“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, because of the pain from his hip.”
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 reasonable jurors to possibly conclude Saunders’s conduct and intake screening evaluation were not objectively reasonable, that NaphCare’s policy could be at fault and that the county may be liable for NaphCare’s constitutional deprivations.
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