7th Circuit Rules Lethally Neglected Inmate Can Sue
February 24, 2017 (Fault Lines)– If Nicholas Glisson were a person society valued, there would be murder charges. Media at the gates. Perp-walks and boxes taken from the Indiana Department of Corrections to waiting FBI vans. But he wasn’t. He was just a man who survived cancer, but not thirty-seven days at the Plainfield Correctional Facility in Indiana.
Glisson had lost his voice box, thirteen teeth, and part of his lower jaw to laryngeal cancer in 2003. The recovery was difficult. He needed a voice prosthesis to speak. Sometimes, when eating was difficult, he would use a feeding tube inserted into a stoma in his neck. The removal of all the tissue had left the muscles in his neck weak. Without a brace, his head would slump forward, making it difficult to breathe.
Still, Glisson was a resilient man. He took care of himself. When his grandmother got sick, he helped. Sometimes, he would stay with the rest of his family to care for his dying brother. He was ready to make the best use of the rest of his life.
Then Glisson’s friend, a confidential informant, persuaded him to share one of the Oxycontin pills he used to deal with his condition. This was a smart strategy for the police officers involved. The downside of prosecuting the drug war, after all, is that one must occasionally go into dangerous situations. But by threatening a family friend into incriminating a disabled man, officers could get a bust without personal risk or the chance that top-flight private counsel might be retained.
It isn’t clear from the record what range of sentences was available to Glisson. But his family asked for straight probation. A doctor wrote to the judge, indicating that if Glisson were imprisoned, he would likely die. But when the trial judge learned that Glisson was unlikely to stop drinking alcohol while on probation, he decided that a ten-year prison sentence would be appropriate.
The family sent Glisson in with all the things he needed to survive the experience. But the prison would not let him use his neck brace. That meant that he struggled to breathe, and to eat. While he appeared lucid in his first few days at the jail, within a few days, he was complaining loudly and throwing candy out of his cell. His oxygen saturation levels were alarmingly low, at 84%, though they raised back to normal levels with position changes. After treatment, he was allowed to suction out his stoma and sent back to his cell, though he still seemed confused.
But Glisson was not well. He was not able to consume anything but milk regularly. His medication had been changed. He couldn’t breathe properly without his neck brace. His behavior became increasingly erratic, but local staff figured that he was either psychotic or somehow sneaking drugs into the prison.
Meanwhile, Glisson was losing weight at an alarming rate and technically starving or cachectic, meaning that his body was literally wasting away due to undernourishment. But because none of the medical staff who saw him from visit to visit ever communicated with each other, no one was ever able to put together all the different problems and figure out, “hey, maybe we’d better give him back his neck brace,” or “it might be a good idea to give him access to the tool he needs to suction out his stoma.”
As all this was happening, Glisson’s mother and attorney were contacting the prison regularly to make sure that he was getting appropriate care. They were told that everything was fine. But test after test kept showing new signs of trouble: confusion, psychosis, dementia, renal failure, low oxygen and chronic pain. Thirty-seven days after he entered, Glisson was found wandering and confused. They put him back to bed, where his corpse was found two hours later.
Glisson’s estate attempted to sue Corizon, the medical provider who had allowed this to happen. But the district court granted summary judgment to Corizon. So did the first panel of the Seventh Circuit. The family was trying to sue under the 8th Amendment, after all, and the courts reasoned that there was nothing cruel or unusual or deliberately neglectful about the shitty care that Glisson received—it was just the level of care that Corizon felt inmates deserved. Judge Woods wrote a sharp dissent, and sought en banc review.
The hurdle that Glisson’s estate had to get over was to establish that Corizon had made a policy decision that led to his death. The earlier panel had held that being crappy and neglectful wasn’t an express policy, it was just how Corizon stumbled into doing business. But the en banc panel held that not doing a bunch of things that protect patient health is as much a policy as choosing to do those things:
Corizon consciously chose not to adopt the recommended policies—not for Glisson, not for anyone. As relevant to Glisson’s case, it admitted that his care at INDOC was based only on general standards of medical and nursing care, not on any “written policies, procedures, or protocols.” It relied on none of the Health Care Service Directives in the course of his treatment.
Ultimately, the 7th Circuit ruled, over a dissent, that Glisson’s estate would be able to go forward to trial against Corizon. If they can establish that Corizon deliberately chose a policy of neglect, and that that neglect led to Glisson’s death, then they can prevail. More likely than not, though, the case will end in a settlement.
And to Glisson’s family, that might be just as good. The goal of a suit isn’t always just money, after all. Sometimes it’s just a sincere apology. And nothing evokes sincerity quite like looking down the barrel of a multi-million-dollar lawsuit.