CHICAGO (CN) – The en banc Seventh Circuit ruled 6-4 that an Indiana prison health care provider may be liable for allowing an inmate who relied on a feeding tube to die of starvation in just 37 days.
An Eighth Amendment case against a medical provider is rare without any allegation of deliberate indifference against an individual doctor or nurse, but the Seventh Circuit ruled Wednesday that a corporation might be liable for deliberate indifference even if its individual agents are not.
Nicholas Glisson, 50, died of starvation and renal failure after spending just 37 days in an Indiana state prison. His mother sued the prison health care provider, Correctional Medical Services, also called Corizon, for deliberate indifference to her son’s medical needs.
A survivor of laryngeal cancer, Glisson was convicted of trafficking in prescription pills after agreeing to give a friend a painkiller. That friend turned out to be a police informer, and Glisson was sentenced to 10 years in prison.
His battle with cancer left him without a larynx, part of his pharynx and part of his jawbone. He required a tracheostomy tube to breathe and a voice prosthesis to speak. Radiation treatment also left his neck too weak to support his head, so he needed a brace to hold his head up so he could breathe and eat.
At sentencing, two doctors urged a Wayne County judge to place Glisson on house arrest, testifying that he was unlikely to survive incarceration. However, the judge gave greater weight to Glisson’s history of alcoholism, and disregarded these warnings, according to court records.
Glisson arrived at the county jail with his neck brace, but it was never forwarded to the state prison where he was transferred and he never received a replacement.
Further, despite his extensive medical needs, no prison medical staff member reviewed his records until 24 days after his arrival.
Around this time, a prison doctor reportedly diagnosed Glisson as psychotic without reviewing his complete medical history. The doctor described him as delusional and suffering from hallucinations, but blamed the symptoms on Glisson’s recent medication change.
“Had Dr. Conant looked at something resembling a complete chart, he would have seen that Glisson had no history of psychosis, and he might have considered, as the post-mortem experts did, the more obvious possibility that lack of oxygen and food was affecting Glisson’s mental performance,” U.S. Circuit Judge Diane Wood said, writing for the en banc Seventh Circuit’s 6-4 majority.
Days later, a different doctor noted that Glisson appeared severely undernourished. However, there is no record that the doctor weighed Glisson to measure his possible weight loss from his entry weight of 119 pounds.
This doctor also appeared unaware of Glisson’s medical record, and even of his mental-health evaluation conducted days prior.
“The Corizon providers never took any steps to integrate the growing body of evidence of Glisson’s malnutrition with his overall mental and physical health,” Wood wrote.
Rather than addressing Glisson’s physical ailments and the struggle he faced to eat and breathe normally, medical staff reportedly placed him in the psychiatric unit under suicide watch.
Lab tests that showed Glisson slipping into renal distress were not timely reviewed, contributing to his mental deterioration, and ultimately, his death.
Seven years prior, the Indiana Department of Corrections issued guidelines for prison health providers regarding the proper management of chronic diseases, but Corizon made no provision for “organized and consistent [care] across facility lines,” as the health care directive mandated.
“A jury could conclude that Corizon had actual knowledge that, without protocols for coordinated, comprehensive treatment, the constitutional rights of chronically ill inmates would sometimes be violated, and in the face of that knowledge it nonetheless ‘adopt[ed] a policy of inaction,’” Wood said.
The majority noted that Glisson was managing his difficult medical situation adequately until he entered the Indiana prison system, where he swiftly deteriorated.
“There is no magic number of injuries that must occur before [Corizon’s] failure to act can be considered deliberately indifferent,” Wood concluded.
U.S. Circuit Judge Diane Sykes dissented, and was joined by three other judges. She said she had “no quarrel” with the majority’s ruling that “a gap in official policy can sometimes be treated as an actual policy for purposes of municipal liability.” (Emphasis in original.)
However, Sykes said Glisson’s mother presented no evidence that Corizon caused her son’s death.
“Some of Corizon’s medical professionals may have been negligent in his care, and their negligence may have hastened his death,” she wrote. “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 would likely lead to constitutional violations.”