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Divided full 7th Circuit allows inmate death case to go to trial

February 22, 2017

A woman whose son was found dead in an Indiana Department of Correction facility can now take her case to trial after a divided en banc 7th Circuit Court of Appeals reversed summary judgment in favor of the health care providers who treated her chronically ill son.

Prior to his incarceration in the Indiana Department of Correction in September 2010, Nicholas Glisson suffered from laryngeal cancer, hypothyroidism, depression and cognitive decline. When a friend, acting as a police informant, convinced Glisson to give the friend one of his prescription painkillers, Glisson was convicted of an infraction and was sentenced to the Wayne County Jail.

He was later moved to the DOC facility in Plainfield, where he came under the care of several doctors and nurses working for Correctional Medical Services Inc., better known as Corizon.  Describing Corizon’s care of Glisson at the correctional facility as “the blind men’s description of the elephant,” 7th Circuit Court of Appeals Judge Diane Wood said in a Tuesday opinion that none of the providers exhibited “deliberate indifference” to Glisson’s condition.  However, less than two weeks after his transfer, Dr. Malak Hermina noted that Glisson’s weight had dropped so significantly that it could be attributed to starvation due to the fact that he was confused and not eating.

Glisson’s mental state also began to deteriorate over time and his blood work showed signs of acute renal failure, so he was transferred to Wishard Hospital. Shortly after his release, Glisson was found unresponsive in his jail cell and was later pronounced dead. The coroner concluded the cause of death was complications from laryngeal cancer with contributory chronic renal disease.

Alma Glisson, Nicholas Glisson’s mother, filed a lawsuit, but Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana awarded summary judgment to Corizon and DOC on all of her federal Eighth Amendment claims. On appeal to the 7th Circuit, a panel of the court ruled that Alma Glisson failed to present enough evidence to defeat summary judgment in Corizon’s favor.

But in an en banc rehearing, a majority reversed course and ordered Glisson’s case to go to trial.

The Department of Correction has a health care directive that lays out the guidelines for treating inmates with chronic diseases, Wood wrote, but Corizon admitted that in Glisson’s case, care was based on a general standard of medical and nursing care, not the written policies.

“Nothing in the U.S. Constitution requires Corizon to follow INDOC’s policies,” she wrote. “The point is a more subtle one: the existence of the INDOC Guidelines, with which Corizon was admittedly familiar, is evidence that could persuade a trier of fact that Corizon consciously chose the approach it took.”

Thus, because a jury could finds that Corizon’s decision not to enact centralized treatment led directly to Nicholas Glisson’s death, the 7th Circuit reversed summary judgment in Corizon’s favor and remanded the case for further proceedings.

But Judge Diane Sykes, joined in a dissenting opinion by Judges William Bauer, Joel Flaum and Michael Kanne, wrote that Alma Glisson produced no evidence to support the fault or causation elements of her claim required under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).

“Under traditional principles of Monell liability, however, there is no basis for a jury to find that Corizon was deliberately indifferent to a known or obvious risk that its failure to adopt formal protocols in compliance with (healthcare directives) would likely lead to constitutional violations,” Sykes wrote. “Nor is there a factual basis to find that this alleged gap in corporate policy caused Glisson’s death.”

The case is Alma Glisson, Personal Representative of the Estate of Nicholas L. Glisson v. Indiana Department of Corrections, et al., 15-1419.
 

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