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Wednesday, February 22, 2017

Ind. Decisions - 7th Circuit issued one Indiana opinion yesterday, a reversal after rehearing en banc

In Alma Glisson v. Correctional Medical Services (SD Ind., Barker), a 36-page, 6-4 opinion, Chief Judge Wood writes:

Nicholas Glisson entered the custody of the Indiana Department of Corrections on September 3, 2010, upon being sentenced for dealing in a controlled substance (selling one prescription pill to a friend who turned out to be a confidential informant). Thirty-seven days later, he was dead from starvation, acute renal failure, and associated conditions. His mother, Alma Glisson, brought this lawsuit under 42 U.S.C. § 1983. She asserts that the medical care Glisson received at the hands of the Department’s chosen provider, Correctional Medical Services, Inc. (known as Corizon) violated his rights under the Eighth Amendment to the U.S. Constitution (made applicable to the states by the Fourteenth Amendment). A panel of this court concluded that Corizon was entitled to summary judgment in its favor. See Glisson v. Indiana Dep’t of Corr., 813 F.3d 662 (7th Cir. 2016). The court decided to rehear the case en banc in order to examine the standards for corporate liability in such a case. We conclude that Glisson presented enough evidence of disputed, material issues of fact to proceed to trial, and we therefore reverse the district court’s judgment. * * *

In closing, we reiterate that we are not holding that the Constitution or any other source of federal law required Corizon to adopt the Directives or any other particular document. But the Constitution does require it to ensure that a well-recognized risk for a defined class of prisoners not be deliberately left to happenstance. Corizon had notice of the problems posed by a total lack of coordination. Yet despite that knowledge, it did nothing for more than seven years to address that risk. There is no magic number of injuries that must occur before its failure to act can be considered deliberately indifferent. See Woodward v. Corr. Med. Servs., 368 F.3d 917, 929 (7th Cir. 2004) (“CMS does not get a ‘one free suicide’ pass.”).

Nicholas Glisson may not have been destined to live a long life, but he was managing his difficult medical situation successfully until he fell into the hands of the Indiana prison system and its medical-care provider, Corizon. Thirty-seven days after he entered custody and came under Corizon’s care, he was dead. On this record, a jury could find that Corizon’s decision not to enact centralized treatment protocols for chronically ill inmates led directly to his death. The judgment of the district court is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

[p. 21] SYKES, Circuit Judge, with whom BAUER, FLAUM, and KANNE, Circuit Judges, join, dissenting. * * *

Nicholas Glisson arrived in Indiana’s custody suffering from complicated and serious medical conditions. Some of Corizon’s medical professionals may have been negligent in his care, as Dr. Sommer maintains, and their negligence may have hastened his death. That’s a tragic outcome, to be sure; if substantiated, the wrong can be compensated in a state medical-malpractice suit. 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 HCSD-2.06 would likely lead to constitutional violations. Nor is there a factual basis to find that this alleged gap in corporate policy caused Glisson’s death. Accordingly, I would affirm the summary judgment for Corizon.

Posted by Marcia Oddi on February 22, 2017 09:09 AM
Posted to Ind. (7th Cir.) Decisions