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Glisson v. Indiana Department of Correction

United States District Court, S.D. Indiana, Indianapolis Division

June 4, 2014

NICHOLAS GLISSON (Estate of) Alma Glisson, Personal Representative of Estate, Plaintiff,



This cause is before the Court on the Motions for Summary Judgment filed by Defendants Correctional Medical Services, Inc., Malaka G. Hermina, M.D., and Mary Combs [Docket No. 40] and by the Defendant Indiana Department of Correction [Docket No. 57] on September 10, 2013 and November 27, 2013, respectively. Plaintiff, Alma Glisson, has brought this action as Personal Representative of the Estate of Nicholas Glisson, pursuant to 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to Mr. Glisson's serious medical needs, which constituted cruel and unusual punishment in violation of his rights under the Eighth Amendment to the United States Constitution. For the reasons detailed below, we GRANT IN PART the CMS Defendants' Motion for Summary Judgment as to all federal claims brought pursuant to § 1983 and REMAND the remaining state law claims to Marion Superior Court.[1]

Factual Background[2]

Mr. Glisson's Physical Health Issues Prior to Incarceration

This action arises out of the death of Mr. Glisson on October 10, 2010, at the age of fifty while he was incarcerated at Plainfield Correctional Facility. Mr. Glisson had several longstanding, chronic medical conditions upon entering into custody at the Indiana Department of Correction on September 3, 2010. His medical difficulties stemmed primarily from a diagnosis of laryngeal cancer in 2003, which required extensive surgery performed on October 17, 2003, by Richard Borrowdale, M.D., to remove his larynx and part of his pharynx. During that surgery, Mr. Glisson also had a tracheoesophageal puncture for voice restoration. Dr. Borrowdale extracted portions of Mr. Glisson's mandible and thirteen teeth and performed bilateral modified neck dissections at that time as well. As a result of the surgery, Mr. Glisson was left with a permanent stoma, or opening in his throat, with placement of a tracheostomy tube. Mr. Glisson was given training on how to care for the stoma and tracheostomy tube, which involved keeping the area clean using saline solution and using a suction machine to clear saliva and mucous secretions from the stoma when necessary.

On October 28, 2003, Dr. Borrowdale performed a follow-up examination of Mr. Glisson, noting that Glisson had been fitted for a voice prosthesis and opining that Glisson would require postoperative radiation treatment to further treat the cancer. After Mr. Glisson's radiation therapy concluded, Dr. Borrowdale examined him on April 1, 2004, with particular attention to a mass that had developed on the left side of his neck. Fortunately, a biopsy established that the mass was merely granulation tissue and not cancerous.

On June 3, 2004, Mr. Glisson returned to Dr. Borrowdale with complaints of dysphagia or difficulty swallowing. Mr. Glisson was also diagnosed with hypothyroidism as a result of his radiation therapy. To treat Mr. Glisson's swallowing difficulty, Dr. Borrowdale performed a direct esophagoscopy and a blind dilation of Glisson's esophagus, and ordered him to return in six weeks for a follow-up examination. Mr. Glisson's swallowing problems persisted, which led Dr. Borrowdale on December 20, 2004 to again attempt a direct esophagoscopy using a rigid scope. Because Mr. Glisson was experiencing swelling and was unable to flex his head, the scope could not be passed through directly, requiring Dr. Borrowdale to dilate the esophagus using dilators.

Mr. Glisson continued to have difficulty swallowing during the months and, indeed, years following his surgery. On June 24, 2005, Dr. Borrowdale performed an esophagoscopy which revealed a mucosal irregularity at the lower portion of the pharynx above Mr. Glisson's voice prosthesis. Dr. Borrowdale obtained a specimen of this irregularity for biopsy, finding it to be non-cancerous. Dr. Borrowdale again treated Mr. Glisson for dysphagia on September 1, 2005, at which point he noted a mucosal superficial lesion which was also biopsied. On January 16, 2005, Dr. Borrowdale used an esophagoscope to dilate Mr. Glisson's esophagus. On that same date, Dr. Borrowdale made note of the fact that Glisson was a chronic alcoholic.

Dr. Borrowdale again examined Mr. Glisson on June 9, 2006, following which he noted that Mr. Glisson had some leukoplakia, or white patches on his tongue, and erythoplakia, or red lesions in his mouth. Dr. Borrowdale further observed that after nearly three years post-surgery, Mr. Glisson still had a nonhealing area around his stoma and experienced continued difficulty swallowing. On June 26, 2006, Dr. Borrowdale dilated Mr. Glisson's esophagus to excise the anterior floor of his mouth lesion.

Mr. Glisson returned to Dr. Borrowdale on January 26, 2007 with facial swelling and dysphagia. Dr. Borrowdale again performed an esophagoscopy and advised Mr. Glisson to return in six months for further follow up examination.

On May 1, 2007, Mr. Glisson presented to Dr. Borrowdale with complaints of contracture of the neck with pain in the occipital area, along with right shoulder and arm pain. Dr. Borrowdale noted that there was no evidence of disease or cancer, but he was concerned that Mr. Glisson might have some cervical spine disease. Thus, he referred him to neurologist Katherine T. Kobza, M.D., who saw Mr. Glisson on July 6, 2007. Dr. Kobza noted that he had developed progressive problems with neck pain over the previous several years. His neck slumped forward and he had trouble holding his head up, which affected his ability to use his voice prosthesis. Dr. Kobza opined that Mr. Glisson's case was very complicated due to his extensive surgery and post-surgical radiation.

Mr. Glisson returned to see Dr. Kobza on July 25, 2007, after having a CT scan of the cervical spine, which showed a mildly compressed T1 vertebral body and changes throughout the neck region. A nerve study also showed right C7 radicular changes with left C6 and bilateral carpal tunnel. Dr. Kobza's impressions were probable cervical radiculopathy and significant scar tissue. She told Mr. Glisson that there would be limitations on how much capacity could be regained and suggested physical therapy for strengthening and stretching. Dr. Kobza instructed Mr. Glisson to return to see her in four to six weeks.

However, Mr. Glisson did not return to see Dr. Kobza until February 15, 2008, more than six months later. At that time, he continued to have pain and difficulty with his neck. He was wearing a neck brace some of the time during the day to help him hold his head up, although he still had considerable difficulty doing so, especially toward the end of the day. Dr. Kobza noted that Mr. Glisson had tried an injection and physical therapy without definite improvement and that she had little other treatment protocols to suggest or provide.

On March 25, 2008, Derron K. Wilson, M.D. the Indianapolis Neurosurgical Group examined Mr. Glisson. Mr. Glisson told Dr. Wilson that he had noticed over the previous two years that his head was falling forward. Dr. Wilson reviewed a March 12, 2008 cervical MRI which showed mild cervical spondylosis, abnormal signal intensity of uncertain origin, and findings possibly suggestive of metatastic lesions. Dr. Wilson was also concerned about Mr. Glisson's report of a recent ten-pound weight loss. Dr. Wilson prescribed Valium as needed for muscle spasms and referred Mr. Glisson to Alexander Yeh, M.D., a radiation oncologist who had managed Mr. Glisson's chemotherapy.

Dr. Yeh examined Mr. Glisson on March 31, 2008, and requested another MRI. Mr. Glisson was subsequently hospitalized at St. Vincent Hospital in Indianapolis from May 28, 2008 to June 4. 2008. Mr. Glisson's discharge summary was completed by Salvatore Grimaldi, M.D., who noted Glisson's history of cancer with surgery, and recent radiologic films and MRI which revealed a cervical spine abnormality. Mr. Glisson continued to suffer from progressive dysphagia with weight loss, and flexion of the neck so severe that it made it difficult for him to clean his tracheal stoma and use his voice prosthesis. During his hospitalization, Mr. Glisson had a gastrojejunostomy tube, also referred to as a "G-tube, " place in his upper abdomen to permit nutritional support via tube feeding. No cancerous cells were identified during Mr. Glisson's hospitalization. Mr. Glisson was discharged with home health care and nutrition care to be provided at home.

On August 5, 2008, Mr. Glisson was examined by Dr. Gregory Hellwarth of Orthopedic Spine & Surgery, LLC, who noted that Mr. Glisson had severe neck pain with C1-2 anterior sublaxation, a history of laryngeal carcinoma with extensive irradiation to the anterior neck, chronic nicotine dependency (and still smoking), and malnutrition. Dr. Hellwarth opined that surgery to address Mr. Glisson's neck problems would be a major undertaking and would carry a huge risk of severe complications. He recommended a CT scan to define the process of the upper cervical spine better. Dr. Hellwarth saw Mr. Glisson again on August 21, 2008, after the CT scan and reiterated his belief that corrective surgery for Mr. Glisson's neck was beyond the scope of what could be offered. Dr. Hellwarth referred Mr. Glisson for further consultation by Dr. Rick Sasso.

On May 5, 2009, Mr. Glisson was examined by neurologist Jay Bhatt, M.D. for evaluation of severe anterocollis, or anterior neck flexion. Dr. Bhatt noted that Mr. Glisson continued to have difficulty swallowing. Dr. Bhatt concluded that Mr. Glisson's anterocollis was due to radiation therapy and recommended botulinum toxin injections. He cautioned, however, that if the flexion was due to fibrosis, the injections would not help. Dr. Bhatt further observed that Mr. Glisson's G-tube would be helpful if he continued to have trouble swallowing. On May 20, 2009, Mr. Glisson underwent an initial set of botulinum injections, but Dr. Bhatt continued to be suspicious that Glisson had contractures and scar tissue in his neck.

On June 17, 2009, Mr. Glisson was examined by Dr. Stacey L. Halum of University Otolaryngology Associates, Inc. In addition to his prior health issues, Mr. Glisson reported that he recently experienced leaking of his voice prosthesis. Dr. Halum observed an area of red, thickened mucosa at the left soft palate which she found concerning, and recommended a biopsy. Dr. Halum also discussed options for addressing and revising Mr. Glisson's stoma. However, because Mr. Glisson had fungal colonization on his voice prosthesis at that time, Dr. Halum recommended a course of antibiotics before changing the prosthesis or revising the stoma.

Mr. Glisson was admitted to Clarian Health on July 20, 2009, for surgical release of neck contractures, esophageal dilation, revision of his tracheoesophageal puncture, an esophagoscopy, a laryngoscopy and biopsy of the left soft palate lesion, and placement of a new voice prosthesis. Mr. Glisson received physical and occupational therapy during his hospitalization and was fitted with a modified cervical collar designed to hold his neck in a more natural and less-flexed position. Mr. Glisson was advised to wear the cervical collar as often as possible, preferably at all times while awake. He was discharged on July 24, 2009.

On August 6, 2009, Mr. Glisson saw Dr. Hallum for a follow-up examination. She noted that his speech was very good and that he was holding his head much higher. In response to Mr. Glisson's desire to adjust his neck brace, he was scheduled to meet with a physical therapist, who would assist in modifying the brace. On September 3, 2009, Mr. Glisson returned to Dr. Hallum at which point she placed a new voice prosthesis that allowed him to drink water with no evidence of leaking.

On September 23, 2009, Mr. Glisson was examined by Dr. Borrowdale who reviewed the results from Glisson's June 17, 2009 biopsy of the left soft palate lesion. The results of the biopsy showed squamous cell carcinoma requiring surgical recision, which Dr. Borrowdale performed on October 8, 2009. Dr. Borrowdale again examined Mr. Glisson on December 18, 2009, and noted that he continued to be in very poor health.

At a March 23, 2010 examination of Mr. Glisson, Dr. Borrowdale noted a lesion on his left lateral tongue which was suspicious for carcinoma. Dr. Borrowdale obtained a specimen for biopsy and ordered a PET scan. The lesion was cancerous and Dr. Borrowdale excised it on April 28, 2010. In a follow-up visit on June 24, 2010, Dr. Yeh noted that Mr. Glisson was improving but that he continued to suffer from severe fibrosis causing neck retraction and pain. Mr. Glisson's Cognitive and Mental Health Issues Prior to Incarceration

On October 1, 2009, Mr. Glisson complained to Dr. Fisher of poor memory. On October 2, 2009, Mr. Glisson's attorney contacted Dr. Borrowdale's office and requested that Glisson's memory issues be evaluated by a neurologist to determine what effect his medication regime had on his brain.

On January 14, 2010, Dr. Kozba, a neurologist, examined Mr. Glisson. Dr. Kozba had previously seen Mr. Glisson in November 2009 and thereafter was given an MRI and neuropsychological testing. At the January 14 appointment, Dr. Kozba noted that Mr. Glisson was struggling with memory and depression. A December 11, 2009 MRI of his brain was normal, but neuropsychological testing performed on December 14, 2009 showed a mild neurocognitive decline with difficulties related to attention span, processing speeds, verbal fluency, and memory, along with signs of significant depression. Dr. Kozba observed:

Mr. Glisson's neuropsychological evaluation did demonstrate some mild cognitive impairment. This is likely multifactorial both from his ongoing illness, alcohol consumption but the overwhelming finding was that of significant depression as well. At this point, this has not been addressed or treated and I think he definitely deserves treatment. I worry about his psychological status in terms of plans to testify in court in the next several weeks and I think that maybe this needs to be carefully thought out whether he is able to handle this. I will institute some therapy with Celexa today to see if we can get some symptoms under control but this will not take effect for 4 to 6 weeks.

Defs.' Exh. 37.

Mr. Glisson's Alcohol Issues

At some point prior to Mr. Glisson's throat cancer diagnosis in 2003, he participated in a twelve-step program through Alcoholics Anonymous ("AA") to address his alcoholism. However, on August 12, 2006, Mr. Glisson was examined by his primary care physician, William Fisher, M.D., who noted that Mr. Glisson's main problem was that he continued to be a heavy consumer of alcohol. Dr. Fisher advised Mr. Glisson to return to an AA program and to quit both drinking and smoking. Dr. Fisher also noted concern regarding Mr. Glisson's compliance with the medication Synthroid, which he took to address his chemotherapy-induced hypothyroidism. When Mr. Glisson returned on August 15, 2008 for refills of Oxycodone and Oxycontin, Dr. Fisher noted that Mr. Glisson continued to use alcohol. On January 19, 2009, Mr. Glisson again visited Dr. Fisher for treatment of blisters on his heels. At that appointment, Dr. Fisher noted that Mr. Glisson smelled of alcohol.

Mr. Glisson's Ability to Care for Himself

Despite his significant health issues, from 2003 to 2010, Mr. Glisson was able to take care of his stoma and suctioning independently, without assistance. Plaintiff Alma Glisson, Mr. Glisson's mother, testified by deposition that although both she and Mr. Glisson's sister were present when he was taught how to perform the cleaning and suctioning of his tracheostomy/stoma vent shortly after his 2003 surgery, he would not allow them to help him and insisted on doing it himself.

Plaintiff testified that she did help Mr. Glisson with certain other tasks at times, such as assisting him with his feeding tube and keeping it clean as well as helping to make sure he took the right medication at the right time. However, she also testified that Mr. Glisson used the feeding tube only occasionally and that he generally took food or nutritional supplements like Ensure or Boost through his mouth. According to Plaintiff, Mr. Glisson ate well and took Ensure or Boost six times per day as prescribed, unless he ate a sufficient amount of other food so that he did not require as many supplements.

Mr. Glisson lived alone, except for brief periods of time when he stayed with his family to help care for his sick grandmother and dying brother. Plaintiff testified that she was never aware of any problems with his hygiene. To the contrary, he kept clean, took regular baths, and washed his own laundry. Plaintiff testified that, during the week or so before he was incarcerated in August 2010, Mr. Glisson came to her house to mow the lawn, clean her French doors, do some cooking, and help care for his brother. According to Plaintiff, although Mr. Glisson had health issues, he was able to live with them. She testified that: "[H]e had no voicebox, no thyroid, neck breather, and that was the condition he was in. But he got along very well with it, very well for what happened to him." Pl.'s Exh. C at 122. Plaintiff did not believe that Mr. Glisson's condition was deteriorating before his incarceration.

Physicians Express Concern for Mr. Glisson's Condition Prior to Incarceration

On April 30, 2010, Dr. Borrowdale wrote a letter expressing concern regarding incarcerating Mr. Glisson, stating:

Nick Glisson is a 50-year-old male who has been a cancer patient of mine for at least the last 15 years. He is severely disabled from his cancer and from alcohol. He is severely alcoholic. He is unable to speak because of his laryngectomy and has problems with dysphagia. He is also very kyphotic and has problems ambulating. The patient has also had a cancer of the soft palate and just recently, of his tongue. This patient is severely disabled, and I do not feel that he would survive if he was incarcerated.

Defs.' Exh 38.

On July 1, 2010, Mr. Glisson's voice prosthesis was changed after it had fallen out. On August 26, 2010, Dr. Fisher wrote a letter stating:

Nicholas [Glisson] is an unfortunate gentleman with many health problems needing daily observation for monitoring of these problems. He has had surgery for throat cancer and has a permanent tracheostomy. He has severe DJD of his cervical spine with deformity of his neck/unable to lift his head, difficulty swallowing and talking. He is unable to be away from his home by himself. He would not do well if incarcerated.

Defs.' Exh. 40.

Mr. Glisson's Last Examination by Dr. Fisher Prior to Incarceration

Dr. Fisher last saw Mr. Glisson on August 19, 2010. At that examination, Dr. Fisher observed that Mr. Glisson was stable. In particular, he was fully able to take care of himself, clean his tracheostomy, and take food through a feeding tube when necessary. Dr. Fisher also observed that, while Mr. Glisson still had trouble swallowing and talking, he had managed to care for himself throughout the six years following his surgery. According to Dr. Fisher, he never had end-of-life discussions with Mr. Glisson and he had not considered any such medical planning for Glisson.

Mr. Glisson's Incarceration at Wayne County Jail

On August 31, 2010, Mr. Glisson was sentenced to a period of incarceration and taken to the Wayne County Jail. His attorney, David Jordan, wrote a letter to the Wayne County Sheriff stating that Mr. Glisson had very serious medical conditions, including throat cancer, and that he had a feeding tube, voice box, and other issues that required daily attention. A Booking Screening Form signed by Mr. Gleason on August 31, 2010, noted that Mr. Glisson had a "trache" and that he looked unsteady and was unable to raise his head.

On that same day, Michelle Cruse, a nurse at the Wayne County Jail, noted that she had spoken with Plaintiff Alma Glisson and that Ms. Glisson planned to bring supplies to the jail that Mr. Glisson needed to treat his medical conditions. There is no evidence that Nurse Cruse performed an assessment of Mr. Glisson on August 31, but she did note on September 1, 2010, that she had spoken to Mr. Glisson and that he had not told her the previous day that he had a ...

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