Morden v. Grand Traverse County

• Decision Date: 24 April 2007
• Docket Number: Docket No. 272505.
• Citation: 275 Mich. App. 325,738 N.W.2d 278
• Parties: In re Estate of Christopher R. Morden, Deceased. Elizabeth MORDEN, Personal Representative of the Estate of Christopher R. Morden, Plaintiff-Appellee, v. GRAND TRAVERSE COUNTY, Grand Traverse County Jail, Margaret Schofield, RN, Elaine Lozen, RN, Sandi Minor, RN, Grand Traverse Sheriff, Defendants-Appellees, and Marilyn Conlon, MD, Defendant-Appellant, and Well-Spring Psychiatry, PC, Anne Marie Baase, Jim Talbot, and Tony Karlin, Defendants.
• Court: Court of Appeal of Michigan — District of US

738 N.W.2d 278

275 Mich. App. 325

In re Estate of Christopher R. Morden, Deceased.

Elizabeth MORDEN, Personal Representative of the Estate of Christopher R. Morden, Plaintiff-Appellee, v. GRAND TRAVERSE COUNTY, Grand Traverse County Jail, Margaret Schofield, RN, Elaine Lozen, RN, Sandi Minor, RN, Grand Traverse Sheriff, Defendants-Appellees, and Marilyn Conlon, MD, Defendant-Appellant, and Well-Spring Psychiatry, PC, Anne Marie Baase, Jim Talbot, and Tony Karlin, Defendants.

Docket No. 272505.

Court of Appeals of Michigan.

Submitted March 14, 2007, at Lansing.

Decided April 24, 2007, at 9:05 a.m.

Released for Publication August 29, 2007.

Sachs Waldman, Professional Corporation (by Linda Turek), Detroit, for the plaintiff.

Plunkett & Cooney, P.C. (by Mary Massaron Ross), Detroit, for Marilyn E. Conlon, M.D.

Before: SMOLENSKI, P.J., and SAAD and WILDER, JJ.

PER CURIAM.

This case arises out of the death of Christopher R. Morden (the decedent). Plaintiff Elizabeth Morden, as personal representative of the estate of her son, the decedent, has sued defendants Marilyn E. Conlon, M.D., and David J. Wilcox, D.O., among others, asserting state law malpractice claims and federal constitutional claims under 42 U.S.C. 1983. After the state law claims were dismissed, Conlon moved for summary disposition of the federal claims under MCR 2.116(C)(8) and (10), which the trial court denied, finding an issue of fact regarding whether Conlon acted with deliberate indifference in treating the decedent, to the extent that Conlon was not entitled to qualified immunity. Because we hold that (1) no genuine issue of material fact exists regarding plaintiff's claim of deliberate indifference, and (2) Conlon would be entitled to qualified immunity even if an issue of fact did exist, we reverse and remand for the entry of summary disposition in Conlon's favor.

I

The essential facts are largely undisputed. After being arrested on February 4, 2002, the decedent claimed that he was hearing voices and expressed thoughts of self-harm. A suicide alert was issued. The decedent was already taking prescribed medications. Wilcox, the jail physician, continued the decedent's psychotropic medications of 1 mg Risperdal¹ three times daily and 40 mg Celexa² daily, the doses prescribed in December 2001.

On or around February 10, 2002, the decedent was hearing voices and wanted to hurt someone in his cell. Conlon (a consulting psychiatrist) and Wilcox visited the decedent on February 12, 2002. Conlon recommended that Wilcox increase the decedent's Risperdal dose. Conlon asserts that Wilcox was free to implement or reject that recommendation. That decedent's Risperdal dose was increased according to Conlon's recommendation.

On February 27, 2002, a sheriff's deputy found the decedent unresponsive in his cell. He was rocking back and forth in a fetal position. His speech was slow. On March 5, 2002, the decedent was again put on suicide watch after reporting that voices were telling him to stab himself with his pencil. When Conlon visited the decedent on March 12, 2002, although she noted some improvement, she recommended an increase of Risperdal.

Plaintiff visited the decedent on March 15, 2002, and found him acting "druggy." Plaintiff told a social worker at the jail that she was worried about her son. On March 18, 2002, the social worker reported that the decedent got dizzy and that his vision blacked out when he stood up. Wilcox noted that on March 19, 2002, the decedent suffered from head rushes, and that the side effects had started the last time his Risperdal dosage was increased. Wilcox took the decedent's blood pressure.³ Wilcox recommended a psychiatric consultation.

On March 23, 2002, Conlon visited the decedent and noted the decedent's complaints of tingling, head rush when he stood up, and that he could not stand without holding onto a wall. Conlon stated that improvement with Risperdal was apparent, but that the drug was likely causing orthostatic hypotension,⁴ so she suggested switching to a different neuroleptic, according to the following schedule:

• Seroquel (another antipsychotic medication) 100 mg at bedtime for two days, then 200 mg at bedtime for two days, then 300 mg for four days, then 400 mg at bedtime;

• Decrease Risperdal by 2 mg with each increase of Seroquel; and

• Continue Celexa dosage unchanged.

On March 26, 2002, Wilcox noted that the decedent had lost more weight, spoke in a low voice with few words, walked stiffly without head or arm movement, and was "statue-like."

On April 1, 2002, the decedent began clenching his fists and exhibiting seizure-like activity. He was held up by another inmate in order to prevent him from falling to the floor. The decedent was eventually lowered to the floor while the other inmates called for assistance. Cardiopulmonary resuscitation was initiated at the scene. The decedent was defibrillated within 90 seconds of the witnessed cardiac arrest but did not respond. Paramedics took the decedent to a hospital emergency department, where he arrived without any heart activity and was pronounced dead.

An autopsy found no determinable cause of death. Dr. Bader Cassin, Washtenaw County Chief Medical Examiner, testified that in his opinion the decedent "probably" died of a cardiac arrhythmia caused by medications. Dr. Cassin testified that he did not believe that the decedent had neuroleptic malignant syndrome (NMS) when he died. Plaintiff's expert, Dr. Joel Silberberg, opined that the decedent suffered from NMS when he died. Dr. Silberberg stated that the basis for his opinion was that the decedent was suffering from symptoms of EPS (extrapyramidal syndrome) and autonomic instability.

According to the testimony in the record, EPS consists of symptoms resembling Parkinson's tremors that are side effects of psychotropic medications. NMS, on the other hand, is a fatal disease and a medical emergency. It is a rare reactive condition to psychotropic medications that can occur after just the first dose, or after several months of treatment. NMS occurs mostly in males, and involves lead-pipe rigidity, high fever, dehydration, sweating, elevated blood pressure, fast heart rate and respiration, agitation, elevated white blood cell count, difficulty swallowing, and autonomic instability. According to plaintiff, muscle wasting and elevated myoglobin are also signs. The decedent had a myoglobin level of 562, which plaintiff asserts is very high. Wilcox testified that the decedent was exhibiting lead-pipe rigidity.

II

We review the trial court's grant or denial of summary disposition de novo. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim on the basis of the pleadings alone to determine whether the plaintiff has stated a claim upon which relief can be granted. We are required to accept all of plaintiff's well-pleaded factual allegations as true and construe those allegations in a light most favorable to the nonmoving party. Johnson v. Detroit, 457 Mich. 695, 701, 579 N.W.2d 895 (1998). Only if no factual development could justify the plaintiff's claim for relief can the motion be granted. Koenig v. South Haven, 460 Mich. 667, 674, 597 N.W.2d 99 (1999).

When considering a motion for summary disposition under MCR 2.116(C)(10), a trial court must consider affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the party opposing the motion. Smith v. Globe Life Ins. Co., 460 Mich. 446, 454, 597 N.W.2d 28 (1999). Such materials are considered only to the extent that they are admissible in evidence. MCR 2.116(G)(6). Our "task is to review the evidence and all reasonable inferences from it and determine whether a genuine issue of any material fact exists to warrant a trial." Muskegon Area Rental Ass'n v. City of Muskegon, 244 Mich.App. 45, 50, 624 N.W.2d 496 (2000), rev'd in part on other grounds 465 Mich. 456, 636 N.W.2d 751 (2001). "`Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.'" Taylor v. Laban, 241 Mich.App. 449, 452, 616 N.W.2d 229 (2000) (citation omitted).

III

A

Any person who, under color of state law, deprives another of rights protected by the constitution or laws of the United States, is liable under 42 U.S.C. 1983. Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658, 690-691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "[T]o survive summary [disposition] in a 1983 action, [the plaintiff] must demonstrate a genuine issue of material fact as to the following two elements: 1) the deprivation of a right secured by the Constitution or laws of the United States and 2) the deprivation was caused by a person acting under color of state law.'" Johnson v. Karnes, 398 F.3d 868, 873 (C.A.6, 2005) (citation omitted).

The Eighth Amendment of the United States Constitution provides: "Excessive bail shall not be required . . . nor cruel and unusual punishments inflicted." "Cruel and unusual punishment prohibited by the Eighth Amendment may include the denial of medical or psychological treatment." Mosqueda v. Macomb Co. Youth Home, 132 Mich.App. 462, 471, 349 N.W.2d 185 (1984). "Medical treatment that is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness violates the eighth amendment." Rogers v. Evans, 792 F.2d 1052, 1058 (C.A.11, 1986).

The Eighth Amendment does not apply to pretrial detainees, such as the decedent. However, detainees are entitled under the Fourteenth Amendment's substantive Due Process Clause to the same care as prison inmates. Graham v. Washtenaw Co., 358 F.3d 377, 383 (C.A.6, 2004) (the Fourteenth Amendment "affords pretrial detainees a due process right to adequate medical treatment...