Tuesday, September 17, 2013
While preparing for a Neurology Grand Rounds presentation on "Dementia and the Law" at Penn State Hershey, I read the 11th Circuit's decision in Goodman v. Kimbrough, affirming summary judgment in favor of defendant jail officials. The June 2013 decision in this civil rights claim has me asking questions. I suspect the case could provide opportunities for important discussion in a large number of law school courses. As our blogging partner Becky Morgan would say, an opportunity for teaching elder law "across the curriculum," although a pretty disturbing opportunity.
Basic facts: A 67-year-old man "suffering from dementia and prone to disorientation and confusion," was severely beaten by his cell mate while detained in a jail in Clayton County, Georgia. Why was he in jail? He apparently wandered away from his home at night, became confused, and "attempted to gain entry to another trailer." No indication in the opinion of breaking and entering. No indication in the opinion of violence. The man was "arrested for loitering and brought to the Jail." That bears repeating: "loitering."
The man's wife of more than 30 years, after awakening to find her husband gone, called 911 and learned of her husband's arrest. She went to the jail and "showed the officer at the second-floor desk her husband's medical records, explained that he was cognitively impaired and showing signs of dementia." Further, the wife:
"asked the officer to ensure that her husband received his medication and that he be placed either in the infirmary or in isolation so that he would not unintentionally insult another inmate and thereby come into harm's way."
While the timing of some events is not clear from the opinion, on the critical morning in question, when the jail officials opened the man's cell at 5 a.m. to deliver breakfast, they found him "covered in blood," with contusions on his face, eyes swollen shut, and the cell "laden with blood." His injuries were severe, requiring hospitalization in intensive care. Eventually, the jail's investigation determined the man had been beaten by his cell mate.
The 11th Circuit opinion criticizes the conduct of the jail guards in failing to make required hourly cell checks throughout the night and reportedly deactivating the emergency button of another detainee who testified he tried to alert the guards to the sound of the fight coming from the cell. In affirming summary judgment, the court concluded, however, that the plaintiff failed to offer the necessary evidence that the two guards "subjectively knew of a substantial risk of serious harm."
As I continue my preparation to talk with medical professionals about dementia and the law, I keep coming back to the question: "What if this man were your father or husband?" As our population ages and families struggle 24/7 to cope with dementia while keeping loved ones at home, we need better understanding of the condition at all levels. At a minimum there needs to be much better communication about dementia in the criminal justice system, especially if there is to be any justice from the system.