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Litigation Medical Malpractice

Institutional Deliberate Indifference

When a Prisoner’s Health Care Is Botched, the Providers’ Employer May Be on the Hook

Prisoner Eighth Amendment allegations of cruel and unusual punishment due to deliberate indifference to their medical needs are common; most of them go nowhere. Once in a while, though, the care provided to a prisoner is so substandard that the case actually hurdles the defendants' motion for summary judgment and makes it to trial.

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Prisoner Eighth Amendment allegations of cruel and unusual punishment due to deliberate indifference to their medical needs are common; most of them go nowhere. No matter the incompetence of the medical care provided, it is hard for a prisoner to prove (particularly when appearing pro se, as is common) that a care provider acted with intentional knowing recklessness as to his health, as this requires a showing of the provider’s actual knowledge of a serious risk. Generally, any prison-setting medical care mistake or issue must be addressed in state court as a regular medical malpractice claim, not as a violation of a prisoner’s Constitutional rights.

Once in a while, though, the care provided to a prisoner is so substandard that the case actually hurdles the defendants’ motion for summary judgment and makes it to trial. A recent such case — Glisson v. Indiana Dept. of Correction, 2017 U.S. App. LEXIS 3101 (7th Cir., 2/21/17) — not only beat the normal odds, but also presented a rare way of looking at deliberate indifference: In Glisson, it isn’t the actions of the individual doctors and nurses that will be in the spotlight come trial time, but the workings of the medical system that employed them.

Background

The case deals with the death of Nicholas Glisson, who entered a prison operated by the Indiana Department of Corrections on Sept. 3, 2010, after being convicted of selling one prescription pill to a person he considered his friend, but who was acting as a confidential informant for the police. It took just 37 days from that first day of incarceration for him to die in prison from starvation, acute renal failure and other associated conditions. Glisson’s mother, Alma Glisson, brought suit in state court in her capacity as Personal Representative, raising state and federal claims. On summary judgment, the district court dismissed all the federal claims, including those brought under 42 U.S.C. § 1983 against the Indiana Department of Corrections (the Department) and its medical care provider contractor, Correctional Medical Services, Inc. (known as Corizon). See Glisson v. Indiana Dep’t of Corr., No. 1:12-cv-1418-SEB-MJD, 2014 U.S. Dist. LEXIS 75899 (S.D. Ind. June 4, 2014). In those claims, Alma Glisson had asserted that the defendants violated her son’s rights under the Eighth Amendment to the U.S. Constitution (made applicable to the states by the Fourteenth Amendment) by means of the Department’s chosen medical provider, Corizon. On appeal to a panel of the U.S. Court of Appeals for the Seventh Circuit, that dismissal was affirmed. See Glisson v. Indiana Dep’t of Corr., 813 F.3d 662 (7th Cir. 2016). Alma Glisson sought rehearing en banc, limiting her arguments to her claim against Corizon. That request was granted.

A Dismal Story

Nicholas Glisson entered prison with pre-existing serious medical problems, including a 2003 bout with laryngeal cancer that necessitated radical surgery to remove his larynx, part of his pharynx, part of his jawbone and 13 teeth. He breathed through a tracheostomy tube and needed a voice prosthesis to speak. Glisson’s neck was so weakened by this trauma that he had to wear a neck brace to hold his head upright, and he developed curvature of the spine. He had occasional trouble swallowing, so a gastrojejunostomy tube (G-tube) had been placed in his upper abdomen to provide him with supplemental nutrition, as needed. Besides all of this, Glisson suffered from hypothyroidism, depression, and problems associated with smoking and excessive alcohol consumption, and there was evidence that he had diminished cognitive capacity. Still, he lived independently, adequately took care of his own personal and medical needs, and was able to swallow his food and medications most of the time. Further, Glisson performed household chores and provided care to his dying brother and to his grandmother.

After conviction for selling the single pain-killer to his friend, Nicholas presented the sentencing court with a letter from his doctor, Richard Borrowdale, who counseled the court that his patient was very fragile. Dr. Borrowdale concluded his letter with this: “This patient is severely disabled, and I do not feel that he would survive if he was incarcerated.” Despite this, and another doctor’s recommendation that Glisson not be imprisoned because he “would not do well,” he was ordered to be incarcerated.

Glisson’s family tried to prepare him and those who would oversee him in prison by packing up his essential supplies and sending them with him to jail: his neck brace, suction machine, and the mirror and light he used to care for his tracheostomy. When he was taken to the Reception Diagnostic Center of the Indiana Department of Corrections (INDOC) on Sept. 3, 2010, however, the neck brace went missing and was never replaced.

At INDOC’s Diagnostic Center, Glisson was seen by his first Corizon’s caregiver, Nurse Tim Sanford, who assessed his condition and recorded his medication and tracheostomy suctioning regimens. Sanford noted at that time that Glisson was alert and communicative and that he could take food by mouth most of the time. Medical personnel there also noted, however, that he was experiencing some blood pressure, pulse and oxygen saturation level problems, and showed signs of confusion and anger. While still at the Diagnostic Center, Glisson was seen by at least six more medical personnel. The Diagnostic Center’s mental health counselor was concerned enough with his behavior that she called Glisson’s mother, who said that his behavior at home had not been “odd.” There is no evidence that this statement was ever communicated to anyone else in charge of his care. Personnel at the Diagnostic Center ordered the nutritional supplement Ensure be given to Glisson.

Glisson was transferred to INDOC’s Plainfield Correctional Facility on Sept. 17, 2010, where he was assessed by a doctor and nurse. Following this, he was placed in the general prison population with a bottom-bunk pass. At intake, he weighed 119 pounds and his vital signs were normal. No medical treatment plan was devised, however, and nobody reviewed Glisson’s medical records because, although they were requested by a Corizon doctor on Sept. 10, 2010 — the first date of incarceration — the records were never obtained, and no follow-up to that request occurred.

On Sept. 23, 2010, Dr. Conant conducted a mental health analysis of Glisson and concluded he was restless, paranoid, delusional, hallucinating, and insomniac. The ultimate diagnosis was “unspecified psychosis.” Glisson was placed under close observation, but was not prescribed any new medications. (He was on Prozac when he entered the correctional system, but was abruptly switched to Effexor while there, with no record of explanation for the change. An expert witness, Dr. Diane Sommer, later testified on behalf of the plaintiffs and concluded that “[t]his abrupt change in medication contributed to [Glisson's] acute decline in function.”).

Ten days after arriving at Plainfield, Glisson was seen by Dr. Malak Hermina, who asked for the patient’s medical records and received them within a few hours. Dr. Hermina observed that Glisson appeared cachetic — meaning that he was apparently starving to death (physical wasting, weight loss, deteriorating muscle mass). The doctor ordered an additional nutritional supplement, Jevity, but there is no record that he weighed the patient. In reviewing Glisson’s records, Dr. Hermina saw that Glisson suffered spinal issues and back pain (for which he was treated with the opioids OxyContin and Oxycodone), gastroparesis (partial paralysis of the stomach), neck pain, and several mental conditions (depression, poor memory, mild cognitive decline).

As explained by the court: “As time went on, along with the physical problems of cachexia, renal decline, and neck weakness (in part attributable to the fact that no one ever gave him his neck brace), Glisson’s mental status was deteriorating. Dr. Hermina wondered if Glisson belonged in the psychiatric unit at a different prison, but he displayed no awareness of the fact that Dr. Conant had just conducted a mental-health evaluation on Glisson on September 23.”

Dr. Hermina again saw the patient on Sept. 27, 2010, and, seeing continuing problems, ordered fasting labs for the following day. The results, which came in the day after that, showed acute renal failure, prompting Glisson’s immediate transfer to Wishard Hospital. He remained there for more than a week. Upon discharge, on Oct. 7, 2010, the discharge summary listed several diagnoses, including laryngeal cancer, acute renal failure, pneumonia, hypothyroidism, malnutrition, hypertension and dementia. Back in the prison facility, Dr. Hermina ordered continuation of the medications prescribed by the hospital, as well as feeding through Glisson’s G-tube (The court noted that G-tube feeding apparently did not occur — instead, the day after Glisson returned from the hospital a nurse noted in his chart that he did not eat any of the breakfast provided to him on a tray.).

Three days later (Oct. 10, 2010), Glisson was pronounced dead at 8:35 a.m., two and a half hours after he’d been observed by the medical care staff wandering around in a disoriented state. A coroner’s report concluded the cause of death was complications from laryngeal cancer, with contributory chronic renal disease. County coroner Joseph Neuman asked forensic pathologist Dr. Steven Radentz to review the evidence and go into more detail; he agreed with the causes of death stated by the coroner’s office and added that the rapid onset of Glisson’s diminished mental state could have been caused by hypoxia (insufficient oxygen saturation) and acute renal failure.

Next month, we will see how the court handled the question of whether Nicholas Glisson’s mother could state a claim on which relief could be granted.

***** Janice G. Inman is Editor-in-Chief of this newsletter.

The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.

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