Ex-ESP nurse sues NDOC for wrongful termination

Ely Times Reporter
Ely Times, April 16, 2008

Allegations of retaliation for workplace whistle blowing against a former Ely State Prison employee has resulted in a federal lawsuit seeking $1 million in damages. Additional allegations contained in a court document that was filed last week include racial discrimination, sexual harassment and intentional medical malpractice.

Lorraine Wilkin is suing for $1 million.

Attorney Treva Hearne, representing former ESP nurse Lorraine Memory Wilkin, filed the lawsuit April 8 in U.S. District Court in Reno. The complaint and demand for a jury trial names the Nevada Department of Corrections, DOC Director Howard Skolnik, ESP Warden E.K. McDaniel, ESP nurses Joe Brackbill and Mary Eaton, Dr. Stephen MacArthur and DOC Medical Director Dr. Robert Bannister as codefendants.

The complaint calls conduct by the defendants “outrageous” and demands financial remedies totaling $1 million for the wrongful termination of Wilkin. The suit alleges that Wilkin has suffered discrimination in employment, emotional distress and interference with her professional license.

Language contained in the complaint includes, “statutatory protected whistle blowing by the plaintiff of drastic malpractice intentionally inflicted upon prisoners held at Ely State Prison.” The suit states that Brackbill and Eaton were both supervisors of Wilkin.

MacArthur, an obstetrician-gynecologist working at the William Bee Ririe Hospital Rural Clinic, was the supervisor of the medical unit at ESP for several years until the DOC placed him on leave in early 2006.

MacArthur eventually was terminated from the state job. The reason cited was he refused to give up his job at the Ely hospital clinic.

Hearn, of Hager & Hearne of Reno said if the case reaches a jury there will be a lengthy wait. “I think it’s (wait for trial) going to run about 20 months,” she said. Hearne cited a large number of immigration cases scheduled in U.S. District Court for the delay.

She was asked it she expects an out-of-court settlement. “There is no way of knowing. All you can look at is statistics. Eighty-five percent of cases are settled out of court,” Hearne said.

“We were hoping they would expedite it more than that because I have a really bad heart,” said Wilkin, 61, who has suffered five heart attacks, three during the more than nine years that she was employed at ESP.

Known as Lorraine Memory during most of the time she was employed at the prison, she married Ely physician Bruce Wilkin in September 2006.

An ESP employee since 1997, Wilkin filed a complaint with the U.S. Department of Health and Human Services Office of Civil Rights in January 2006 claiming racial discrimination against African American inmates and sexual harassment of female professional staff by MacArthur.

Language in the complaint filed on April 8 says that the U.S. District Court complaint states that MacArthur made “sexual innuendos” toward Wilkin and “showed her pornography on his (office computer) screen saver “knowing that she would be shocked and offended.”

“It was pornography,” Wilkin told the Ely Times last week.

The document that was filed in U.S. District Court states that the civil rights complaint accuses MacArthur of “racial discrimination and intentional medical malpractice against black inmates at the prison.” It also states that she reported the denial of medical care to prisoners who were in pain or suffering respiratory distress and patients with diabetes.

In February 2006, Wilkin filed a complaint stating that MacArthur made unwanted sexual advances, retaliated against her for rejecting his advances and displayed pornography at ESP.

In June of that year, Wilkin was reassigned to a night shift. The suit alleges that the action was in retaliation for her previous complaint.

Wilkin filed a subsequent complaint with the Nevada Equal Rights Commission and with the U.S. Equal Employment Opportunity Commission.

Her reassignment to a night shift came after Wilkin had suffered a heart attack and took sick leave. Her physician had advised her to work on light duty during daylight hours. The complaint states that her supervisors knew about her medical condition.

“I had three (heart attacks) while I was working there. Yes they knew,” Wilkin said last week.

The Department of Corrections terminated her on Feb. 18, 2007. The suit claims that her firing was in retaliation for reporting “the abuse of inmates at Ely and the neglect of their medical conditions and for her reporting the sexual harassment by Dr. MacArthur.”

The complaint alleges that her firing was the result of her disclosing information to the federal Public Defender and other agencies investigating medical malpractice and abuse at ESP.

Wilkin’s lawsuit comes on the heals of a class-action suit filed March 6 by the American Civil Liberties Union, also in U.S. District Court in Reno. That action is class-action on behalf of the more than 1,000 prisoners at ESP and does not seek monetary damages. It simply demands improved medical care for ESP inmates that meets minimum constitutional standards established by a previous court decision.

That complaint alleges that adequate health care was not provided to ESP inmates and calls the lack of care “a pervasive pattern of grossly inadequate medical care” and demands that a court-ordered monitor be appointed to oversee medical care at ESP. That suit names the NDOC, Skolnik, Bannister, McDaniel, Gov. Jim Gibbons, Attorney General Catherine Cortez Masto and Secretary of State Ross Miller as codefendants. Gibbons, Cortez Masto and Miller comprise the State Board of Prison Commissioners.

The ACLU lawsuit claims that several inmates were denied medications while suffering excruciating pain. Some inmates receiving medical care at ESP have died including former Coasters manager Patrick Cavanaugh, an insulin-dependent diabetic who died in the ESP infirmary in 2006 at age 60 after developing gangrene. The ACLU maintains that Cavanaugh had been denied medication. He had been convicted in Las Vegas in 1984 of the murder of Coasters group member Nathaniel “Buster” Wilson in 1980.

Adding to the Department of Corrections’ woes, Cavanaugh’s family also filed suit last week against the state’s prison system, claiming it failed to provide medical treatment for him.

In its lawsuit, also filed in U.S. District Court in Reno, the family contends the maximum-security prison refused to dispense insulin for Cavanaugh’s diabetes.

In reporting the Cavanaugh suit, the Associated Press said Dr. Simone Russo claimed in a medical report attached to the family’s lawsuit that MacArthur denied Cavanaugh his insulin.

“It seems obvious that this goes beyond malpractice to the level of criminal behavior,” Russo said in his affidavit. “But I am not qualified to make that judgment.”

Nicole Moon, spokeswoman for the state attorney general’s office, declined to comment on the lawsuit. “At this point, we are still reviewing and evaluating it,” she told the Reno Gazette-Journal.

A large number of complaints over the past few years to the ACLU of Nevada about health care deficiencies at ESP led to a review by Dr. William Noel (a physician contracted by the ACLU) in October 2007 of the medical records of 35 ESP inmates.

The ACLU’s National Prison Project reported that some prisoners were refused pain medications and others were denied heart medicines. The most serious allegation is that Cavanaugh developed gangrene after being denied insulin and subsequently died. As a response to Noel’s report, the ACLU asked the NDOC in late 2007 to comply with the nationally recognized medical standards established by the National Commission on Correctional Health Care.

Attempts to contact MacArthur by telephone were unsuccessful.

(Ely Times Editor Kent Harper contributed to this report.)