by Matt Clarke

On February 21, 2017, the Seventh Circuit Court of Appeals, in an en banc ruling, held that Correctional Medical Services, Inc. (now known as Corizon Health) may be held liable for deciding not to centrally coordinate medical services for prisoners.

Prior to his incarceration, Indiana state prisoner Nicholas Glisson suffered from several serious medical issues. Most importantly, his larynx and parts of his pharynx and mandible, as well as 13 teeth, had been surgically removed due to laryngeal cancer, and he had a feeding tube and a permanent stoma (an opening in his throat), plus a tracheostomy tube. His neck could not support his head and, without a neck brace, his breathing was impaired. He also required a voice prosthesis to speak.

Despite those medical conditions, Glisson was able to live independently, clean and suction his stoma, use his feeding tube, and swallow food most of the time. He took care of his own hygiene, helped with household chores, and provided care for his grandmother and terminally-ill brother.

A friend, who was acting as a police informant, convinced Glisson to give him some of his prescription pain medication; as a result, Glisson was arrested and convicted of a drug offense. Prior to sentencing, one of his doctors informed the court in a letter that Glisson likely would not survive being incarcerated, while another physician wrote that he would not do well in prison. Nonetheless, he received a ten-year sentence.

Corizon Health, a for-profit company, has provided medical services for the Indiana Department of Correction (DOC) since 2005. Glisson survived just 37 days under Corizon’s care before he died from complications related to starvation, lack of oxygen and renal failure. [See: PLN, Oct. 2017, p.44; Sept. 2017, p.32].

His neck brace was lost during the diagnostic process and never replaced. He saw numerous healthcare professions, none of whom had his complete medical records and none of whom were responsible for coordinating his overall treatment. By the time they recognized he was starving to death, Glisson was already suffering from renal failure; apparently no one realized that the fundamental problem was insufficient oxygen due to the missing neck brace. Glisson’s mother, on behalf of his estate, filed a federal civil rights suit against the DOC and Corizon alleging violations of his Eighth Amendment rights.

The district court granted summary judgment to the defendants on all federal claims and remanded the state claims to state court. Glisson’s estate appealed the summary judgment order with respect to Corizon, and the appellate court affirmed the district court’s ruling in February 2016. See: Glisson v. Indiana Dep’t of Corr., 813 F.3d 662 (7th Cir. 2016). The estate then moved for review by the entire Court of Appeals, which was granted.

The en banc Seventh Circuit noted that Glisson’s prison medical care “began to resemble the blind men’s description of the elephant.” While many providers treated him, and none may have engaged in deliberate indifference, the policy choices made by Corizon, in which no one person was responsible for coordinating Glisson’s overall care, may have violated his Eighth Amendment rights.

One physician who treated him noted that he was starving but did not weigh him, while another changed his medication from Effexor to Prozac “without any evaluation, weaning, or monitoring” – an abrupt change that contributed to his worsening condition.

Seven years before Glisson went to prison the DOC had implemented Healthcare Directive HCSD-2.06, which instructed each facility to provide “planned care in a continuous fashion” and required the care to be “organized and consistent across facility lines.” The policy was not binding on Corizon, but by ignoring it the company indicated it had chosen a deliberate policy of not providing centralized coordination for prisoner medical care.

The appellate court held a jury could find that policy constituted an Eighth Amendment violation by the company even if no individual healthcare employee was deliberately indifferent to Glisson’s medical needs.

“In closing,” the Seventh Circuit wrote, “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.

“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.”

Accordingly, the district court’s summary judgment order was reversed. One appellate judge issued a dissenting opinion. The Supreme Court denied certiorari review on October 2, 2017, and the case currently remains pending on remand. See: Glisson v. Indiana Department of Corrections, 849 F.3d 372 (7^th Cir. 2017), cert. denied. 

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