Rice v. Correctional Medical Services et al
Filing
76
OPINION AND ORDER GRANTING the CMS defendants' 53 Motion for Summary Judgment. Signed by Judge Robert L Miller, Jr on 11/12/2013. (lyb) Modified on 11/14/2013 to note that this is an Opinion and Order (lyb).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ESTATE OF NICHOLAS D. RICE,
Plaintiff
vs.
CORRECTIONAL MEDICAL
SERVICES, et al.,
Defendants
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CAUSE NO. 3:09-CV-319 RLM
OPINION and ORDER
Nicholas Rice died while he was an inmate in the Elkhart County Jail. This
suit ensued. Having once been to the court of appeals, the case is now before the
court on a post-remand summary judgment motion by defendants Correctional
Medical Services, Rebecca Hess, Sharrone Jones, Cindy Lambright, Joy Bell, and
Florence Makousky. The court heard argument on the motion in March and, for
the reasons that follow, the court grants the defendants’ motion.
I.
The court of appeals thoroughly recited the operative facts of the case.
Estate of Rice ex rel. Rice v. Correctional Med. Svcs., 650, 655-663 (7th Cir. 2012).
For today’s purposes, it is enough to highlight that Mr. Rice, who was
schizophrenic, spent fifteen months in the county jail before he died. Mr. Rice’s
estate brought federal and state law claims against a score of defendants,
including county and jail officials and health care providers. In 2009, this court
granted summary judgment for these CMS defendants (Correctional Medical
Services and its employees, with whom Elkhart contracted to provide nursing
services to jail inmates) on the Estate’s federal deliberate indifference claims,
explaining:
. . . it wasn’t reasonably foreseeable that Mr. Rice would suffer from
cardiac arrhythmia due to hyponatremia arising from Mr. Rice’s
ingestion of excessive amounts of water over a short period of time.
The defendants were aware of the serious medical needs posed by
schizophrenia (though not every occasional result of schizophrenia)
and starvation, and they took measures to address those needs.
Estate of Rice ex rel Rice v. Correctional Med. Servs., No. 3:06cv697, 2009 WL
1748059, at *26 (N.D. Ind. June 17, 2009). With the federal claims resolved, this
court dismissed the supplemental state law claims against the CMS defendants.
Id. at 27-28.
The Estate responded by appealing that ruling, and also by filing a new
complaint against the CMS defendants (the original non-diverse defendant wasn’t
included in this suit), alleging medical malpractice claim under Indiana law. In
2010, a different judge of this court dismissed the new suit as barred by collateral
estoppel, reasoning that the 2009 summary judgment decision had decided the
issue of foreseeability. The Estate appealed that decision as well, and the court of
appeals consolidated the cases.
The court of appeals affirmed the 2009 summary judgment with respect to
all of the federal claims based on alleged deliberate indifference to Mr. Rice’s
serious medical needs, but reversed and remanded with respect to the Estate’s
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conditions-of-confinement claim. 675 F.3d at 663-688. The court of appeals also
reversed the 2010 dismissal of the second suit because the 2009 comment on
foreseeability wasn’t necessary to resolution of the issues decided in the 2009
summary judgment ruling.
The consolidated cases returned to this court. The CMS defendants moved
for summary judgment, arguing that: the Ind. Code § 34-9-3-4 bars the Estate
from pursuing an alternative claim for survivorship; there is too little evidence to
allow a reasonable trier of fact to find that Mr. Rice’s death was reasonably
foreseeable to the CMS nurses, or to find that the nurses’ conduct or inactions
proximately caused Mr. Rice’s death; and that any claim for damages should be
limited to the state’s $300,000 wrongful death cap, Ind. Code § 34-23-1-2(e), and
be offset by amounts the Estate recovered from other sources.
II.
Summary judgment is proper when — and only when — the record before
the court shows that no genuine issue of material fact exists and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Protective Life Ins.
Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir. 2011). The evidence and all
reasonable inferences the evidence supports must be viewed in the light most
favorable to the motion’s opponent. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). The movant must inform the court of the basis for the motion and
identify evidence demonstrating the absence of a genuine issue of material fact.
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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets that
motion, the opponent must set forth specific facts showing that a genuine issue
of fact needs to be tried. Anderson v. Liberty Lobby, 477 U.S. at 248.
III.
A.
The defendants contend that:
•
the Estate’s only post-remand claim against them is a statutory
wrongful death claim under Indiana law, Ind. Code § 34-23-1;
•
the complaint doesn’t sufficiently allege a survivorship claim under
Ind. Code § 34-9-3-4;
•
the Estate waived any argument to the contrary by not raising it on
appeal, citing United States v. Husband, 312 F.3d 247, 250-251 (7th
Cir. 2002), and Barrow v. Falck, 11 F.3d 729, 730 (7th Cir. 1993);
and
•
Indiana doesn’t allow punitive damages for wrongful death, Ind. Code
34-23-1-2(c)(2)(B).
The Estate responds that:
•
the complaint sufficiently pleads claims for both wrongful death and
survivorship;
•
earlier findings to the contrary can’t give rise to a waiver because they
were dicta; and
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•
the Estate is entitled to pursue alternate, though inconsistent,
theories through trial, citing Ind. Tr. R. 8(E)(2), Calhoun v.
Cummings, 734 N.E.2d 535, 543 (Ind. 2000), and Smith v. Johnston,
854 N.E.2d 388 (Ind. Ct. App. 2006). The Estate concedes that it
can’t recover damages on both of its purported claims, see Nadolski
v. Hunnicut, No. 2:07cv164, 2009 WL 1659907 at *16 (N.D. Ind. June
15, 2009), but says jury instructions will avoid undue prejudice to
the defendants.
B.
The nature of the claim or claims would have been a critical point in the
briefing leading to the 2010 dismissal. If the defendants are right that the second
complaint includes claims for both a survivorship claim and a wrongful death
claim, lack of foreseeability would have been fatal to the wrongful death claim but
not to the survivorship. The Estate didn’t raise such an argument in the
proceedings leading to (or the appeal of) the 2010 dismissal. Ordinarily, if a party
bypasses an argument and doesn’t present it to the court of appeals, the party
can’t resurrect the argument on remand. Barrow v. Falck, 11 F.3d 729, 730 (7th
Cir. 1993).
More fundamentally, the complaint simply doesn’t include a survivorship
claim. The complaint says the claim is “common law medical malpractice,” and
mentions neither survivorship or the survivorship statute. The complaint seeks
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compensatory and punitive damages for pain and suffering Mr. Rice is said to
have suffered by the defendants’ intentional actions and omissions, it also alleges
that he died from those actions and omissions. The statutory survivorship claim
exists only when the decedent died from causes other than those for which
damages are sought. Ind. Code § 34-9-3-4. The Estate is correct that parties can
plead inconsistent claims, see Fed. R. Civ. P. 8(d), but this complaint contains
allegations that defeat a survivorship claim, and contains no allegations that
suggest a survivorship claim.
The Estate’s complaint alleges a state wrongful death claim, and no other.
C.
For its wrongful death claim to survive this summary judgment motion, the
Estate must point to evidence that would allow a reasonable trier of fact to find
that the defendants owed Mr. Rice a duty, that the defendants breached that duty,
and that the breach proximately caused Mr. Rice’s death. Greathouse v.
Armstrong, 616 N.E.2d 364, 368 (Ind. 1993); Tom v. Voida, 654 N.E.2d 776, 787
(Ind. App. 1995). Today’s inquiry turns on breach of duty and probable cause.
Nobody disputes, at least for summary judgment purposes, that Mr. Rice
died from psychogenic polydipsia — excessive fluid consumption resulting from
a personality disorder. Stedman’s Medical Dictionary 1534 (28th ed. 2006). The
ultimate objective inquiries at trial will be whether any breach of duty by the
defendants caused Mr. Rice’s death as a result of psychogenic polydipsia, and
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whether that condition was reasonably foreseeable to the defendants, see Rice ex
rel. Rice v. Correctional Medical Sevices, 675 F.3d 650, 689 (7th Cir. 2012); Knight
v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009); Johnson v. Jacobs, 970 N.E.2d
666, 673 (Ind. App. 2011) (affirming grant of summary judgment and holding that
no proximate cause existed because the injury was not “a natural, probably, and
foreseeable consequence of the [defendants’] purported violation of a duty”);
Merchants Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383, 389
(Ind. App. 2000), and so today’s inquiry is whether a reasonable trier of fact could,
by drawing all reasonable inferences in the Estate’s favor, find that it was a
foreseeable result of the defendants’ acts and omissions.
The defendants say this record couldn’t support such findings. Indiana law
generally requires expert testimony as proof of causation in medical malpractice
cases. See Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388, 392 (Ind. App.
2010). That requirement applies in this diversity suit because it is substantive
rather than procedural. Wallace v. McGlothan, 606 F.3d 410, 419 (7th Cir. 2010).
The defendants say the Estate’s own expert, Dr. Joe Goldenson, testified that
there was nothing the nurses did or didn’t do from a medical standpoint that
directly caused Mr. Rice’s death, and that the Estate hasn’t pointed to anything
contrary to that. The Estate submitted nearly ninety exhibits in response. It
contends that genuine issues exist as to whether the CMS defendants provided
negligent medical care and treatment, and that expert testimony isn’t needed to
prove causation because the breach of duty was obvious.
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To prevail, the Estate must point to evidence that would allow a trier of fact
to find that Mr. Rice’s death was “a natural, probable, and foreseeable
consequence” of the defendants’ acts or omissions. Johnson v. Jacobs, 970 N.E.2d
at 673; Merchants Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d at
389; Havert v. Caldwell, 452 N.E.2d 154, 158 (Ind. 1983). Expert evidence is
necessary to prove an Indiana medical malpractice case that involves permanent
injury or the aggravation of a previous injury unless the breach of the standard
of care was obvious. Gipson v. United States, 631 F.3d 448, (7th Cir. 2011);
Wallace v. McGlothan, 606 F.3d 410, 419-420 (7th Cir. 2010); Daub v. Daub, 629
N.E.2d 873, 877 (Ind. App. 1994) (“When the issue of cause in not within the
understanding of a lay person, testimony of an expert witness on the issue is
necessary.”).
As proof that the defendants’ breach of duty was obvious, the Estate
submitted affidavits of other inmates who were at the jail while Mr. Rice was there.
They say “it was obvious” Mr. Rice was “nuts”, “very sick mentally”, “very ill”,
“seriously sick”, and “needed hospitalization” or “medical help”; that “it was only
a matter of time until he died”, and that efforts to summon help by “mule kicking”
the cell doors as Mr. Rice died were unavailing. (Exhs. 34, 51, 53, and 59). The
defendants don’t disagree that Mr. Rice suffered from a mental disorder. They
contend that death by psychogenic polydipsia wasn’t obvious or foreseeable.
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The Estate points to the following as evidence that the defendants breached
their duty to Mr. Rice, and by doing so foreseeably caused or contributed to his
death:
•
Defendant Florence Makousky saw Mr. Rice many times and knew he
was “mentally ill”. (Exhs. 9 and 10).
•
In September 2003, CMS employee Margaret Miller (not a defendant
in this suit) noted that Mr. Rice “shows clear visible signs of psychotic
breack” and recommended that he be examined by Dr. Roher as soon
as possible. (Exhs. 11-15).
•
In October 2013, Dr. Roher told CMS and its medical staff to track
whether Mr. Rice was eating. (Exh. 7).
•
Defendant Joy Bell noted in October 2003 that Mr. Rice was standing
in the middle of his cell, avoiding eye contact, refusing to talk or to
take medication. She assessed “ineffective coping” and “reminded
inmate that acting like this won’t get him out of jail like before.” (Exh.
9; Exh. 16).
•
Defendants Bell and Cindy Lambright were present when Mr. Rice
was pepper sprayed in November 2003 and placed in a restraint chair
for more than eighteen hours following an altercation; they didn’t
shower him or ask that he be removed from the restraints (Exhs. 2024), violating the jail’s “Use of Force” and “Emergency Restraint
Chair” policies (Exhs. 25-26).
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•
In February 2004, Ms. Lambright noted that Mr. Rice “won’t take
meds or wear his clothes.” (Exh. 9; Exh. 24; Exh. 27).
•
In April 2004, Ms. Lambright noted that Mr. Rice couldn’t stand, was
jaundiced, refused to talk, and dead skin “sloughed off” when officers
picked him up. (Exh. 9; Exh. 24).
•
Ms. Bell noted in May 2004 that Mr. Rice had a three-inch bedsore.
(Exh. 9).
•
CMS didn’t comply with Elkhart County Sheriff General Order 50701
(Exh. 39) or its Policy and Procedural Manual-Suicide Prevention
Program (Exh. 40-41) when Mr. Rice cut his neck with a disposable
razor in August 2004. (Exhs. 9, 15-16, 24, 29, 31, 37-38).
•
The “medical staff” violated the jail’s “Use of Force Policy” by
restraining Mr. Rice in a restraint chair for eighteen hours in August
2004. (Exhs. 9, 25-26).
•
Ms. Lambright noted that labs were needed after Mr. Rice fainted and
cut his head in August 2004, but an order was never issued. (Exhs.
9, 24).
•
Defendants Sharrone Jones and Rebecca Hess allowed Elkhart
General Hospital to discharge Mr. Rice in October 2003, after
Oaklawn refused the hospital’s request to admit him for psychiatric
intervention. (Exhs. 7, 18, 31, 41, and 47-50).
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•
There’s no record of any contact between Mr. Rice and CMS for a
nineteen-day period in October 2004. (Exh. 31).
•
Ms. Jones gave Mr. Rice a bandage after a head injury in November
2004 (Exhs. 9 and 79(G)).
•
Inmate Montie George warned Ms. Jones and Ms. Miller that Mr. Rice
was “nuts” and couldn’t care for himself. (Exh. 34).
•
Although inmates were kicking the cell doors to summon help the
night/morning Mr. Rice died (Exhs. 53 and 59), the shift logs from
December 17-18, 2004 show no contact between Ms. Lambright (the
nurse on duty at the time) and Mr. Rice between 10:00 p.m. and 5:09
a.m.
The combination of those facts wouldn’t allow a reasonable trier of fact to
find that the defendant knew or reasonably should have known that Mr. Rice was
developing or suffering from psychogenic polydipsia, or that he was in imminent
danger of dying from fatally over-hydrating himself. The strongest of the Estate’s
points is that a jury could find that Ms. Lambright failed to check on Mr. Rice
during the time in which he died. The Estate says the jail had a policy of requiring
hourly checks on inmates in administrative segregation, the shift log showed no
contact between Ms. Lambright (the CMS nurse on duty) and Mr. Rice between
10:00 p.m. and 5:09 a.m., and that Ms. Lambright was within earshot of inmates
who were yelling and kicking to get help for Mr. Rice. But the record contains
nothing to show that as a CMS nurse Ms. Lambright was required to make hourly
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checks, or that she knew or reasonably should have known that Mr. Rice needed
immediate attention or was in imminent danger of serious injury or death from
drinking too much water.
Dr. Gerald Shiener testified that “what really caused [Rice’s] death was the
fact that his medical care was neglected for several months,” but he didn’t
elaborate on how psychogenic polydipsia would have been foreseeable to any of
the CMS defendants. Finally, the only individual defendants involved in this
motion were nurses, and nothing in this record would support equating what was
foreseeable to doctors and what was foreseeable to a nurse or to CMS.
IV.
The way Nicholas Rice died is heartrending. But this record contains no
evidence that would support a finding that his death from psychogenic polydipsia
was reasonably foreseeable to the defendants and was a result of their acts or
omissions. CMS and the nurses are entitled to judgment as a matter of law. The
court GRANTS the CMS defendants’ motion for summary judgment [Doc. No. 53].
SO ORDERED.
ENTERED:
November 12, 2013
/s/ Robert L. Miller, Jr.
Judge, United States District Court
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