Sue Williams, Linda Wood, and Claude Wood, as the Co-Personal Representatives of the Estate of Rachel A. Wood v. Indiana Department of Correction, Corizon, Inc. ( 2020 )

FILED
Apr 08 2020, 11:43 am
OPINION ON REHEARING
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE –
Mary Jane Lapointe INDIANA DEPARTMENT OF
Daniel Lapointe Kent CORRECTION
Lapointe Law Firm, P.C. Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES –
CORIZON, INC. AND THE
CORIZON MEDICAL
EMPLOYEES
Carol A. Dillon
Christopher Andrew Farrington
Bleeke Dillon Crandall, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sue Williams, Linda Wood, and April 8, 2020
Claude Wood, as the Co- Court of Appeals Case No.
Personal Representatives of the 19A-CT-1832
Estate of Rachel A. Wood, Appeal from the Marion Superior
Deceased, Court
Appellants-Plaintiffs, The Honorable John M.T. Chavis,
II, Judge
v. Trial Court Cause No.
49D05-1401-CT-1478
Court of Appeals of Indiana | Opinion on Rehearing 19A-CT-1832 | April 8, 2020 Page 1 of 4
Indiana Department of
Correction, Corizon, Inc.,
Georgeanne R. Pinkston, Dawn
Renee Antle, Mary D. Grimes,
Tina Icenogle, Daniel P. Rains,
M.D., Richard M. Hinchman,
M.D., and Vance Raham, M.D.,
Appellees-Defendants.
Najam, Judge.
[1] Corizon petitions for rehearing following our opinion reversing the trial court’s
entry of summary judgment for Corizon, certain Corizon medical employees,
and the DOC. See Williams v. Ind. Dep’t of Corr., ___ N.E.3d ___, No. 19A-CT-
1832, 2020 WL 878959 (Ind. Ct. App. Feb. 24, 2020). The Corizon medical
employees and the DOC do not seek rehearing. 1
[2] We grant the petition for rehearing to clarify two points in our opinion. First,
in a footnote this Court stated that the Estate did not appeal the trial court’s
entry of summary judgment for Corizon medical employee Dr. Michael
Mitcheff. Id. at *1 n.1. In its response to Corizon’s petition for rehearing, the
Estate asserts that this was an inadvertent omission on its part in the briefs on
1
In its petition for rehearing, Corizon asks that we consider an additional claim raised by the Estate against
the DOC in the trial court but not raised by the Estate or the DOC on appeal. Corizon has no standing to
raise issues on behalf of the Estate or the DOC, and we have no opinion on the entry of summary judgment
on those issues.
Court of Appeals of Indiana | Opinion on Rehearing 19A-CT-1832 | April 8, 2020 Page 2 of 4
appeal and, as such, we should clarify that Dr. Mitcheff continues to be a part
of the proceedings in light of our opinion.
[3] This we cannot do. The Estate’s brief on appeal contained no argument that
the designated evidence warranted reversal of the court’s entry of summary
judgment for Dr. Mitcheff. Rather, regarding the events at Rockville, the
Estate’s brief expressly stated that “[t]his appeal is brought only against Dr.
Raham and Nurse Practitioner Pinkston.” Appellant’s Br. at 16. Regarding the
events at Madison, the Estate’s brief says: “This appeal is brought only against
Dr. Hinchman and Nurse Practitioner Antle.” Id. at 20. Regarding the events
at the Indiana Women’s Prison and thereafter, the brief states: “This appeal is
brought only against Dr. Rains, Nurse Grimes, and Nurse Icenogle.” Id. at 29.
And the Estate’s description of the systemic and gross deficiencies that were the
basis of its remaining claim against Corizon makes no mention of Dr. Mitcheff.
See id. at 35-41. In other words, we addressed the appeal as presented, and the
Estate’s omission from its original briefing is not grounds for relief after the fact.
It is well established that a party may not raise an argument for the first time on
rehearing. Clark Cty. Drainage Bd. v. Isgrigg, 966 N.E.2d 678, 679 (Ind. Ct. App.
2012) (citing Carey v. Haddock, 881 N.E.2d 1050, 1051 (Ind. Ct. App. 2008),
trans. denied).
[4] Second, it is not disputed by the parties on rehearing that, during the course of
the trial court proceedings, the Estate’s theory of liability against Corizon under
42 U.S.C. § 1983 was a theory of direct liability, not a theory of liability under
the doctrine of respondeat superior. Direct liability against an employer under §
Court of Appeals of Indiana | Opinion on Rehearing 19A-CT-1832 | April 8, 2020 Page 3 of 4
1983 for deliberate indifference may exist if the facts show systemic and gross
deficiencies such that the inmate population is effectively denied access to
adequate medical care. Id. at *17. Our holding against Corizon was that the
designated evidence, which was and is available against Corizon, met that
standard. Id. Accordingly, we clarify our holding to be that the Estate’s theory
against Corizon is for direct liability under § 1983, not liability under the
doctrine of respondeat superior.
[5] In all other respects, we affirm our opinion.
Vaidik, J., and Tavitas, J., concur.
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