• High court hears case related to inmate’s death
     | May 22,2013

    MONTPELIER — The state Department of Corrections and its former health care provider argued before the Vermont Supreme Court on Tuesday over who should pay for the legal defense against any claims made in the 2009 death of an inmate at the state women’s lockup in Swanton.

    When Ashley Ellis arrived at the prison in Swanton in August 2009, she expected the medications she took for an eating disorder would be there already.

    But the potassium she was taking hadn’t been ordered, and despite her repeated requests for the pills the 23-year-old former Castleton woman never received them. She died two days into a 30-day prison sentence she was serving for a traffic offense that seriously injured a man.

    A medical examiner’s report found that Ellis died from a combination of hypokalemic induced cardiac arrhythmia due to anorexia/bulimia nervosa and denial of medications to boost her potassium levels.

    Ellis’ estate reached an out-of-state settlement in 2010 with Corizon — formerly known as Prison Health Service Inc. — which was providing medical services inside Vermont’s prisons at the time.

    The estate also sued the state, contending that the Department of Corrections and in particular its director of medical services, Dr. Delores Burroughs-Biron, were negligent by failing to have Ellis’ medication on hand when she arrived at the jail despite notifications sent to Corrections by her doctor and lawyer.

    But the department argued first in Rutland civil court and in the state’s high court Tuesday that Corizon, not the state, has a duty to defend the department in court.

    It’s a legal and contractual question that has great importance in the case because part of the Ellis’ estate’s agreement with Corizon is that the company would be indemnified from any further claims in the case.

    “In my view, the state would avoid responsibility for causing Ashley’s death if they infringe on the contract,” said Rutland attorney Shannon Bertrand, who spoke on behalf of Ellis’ family during the court hearing Tuesday.

    But Assistant Attorney General Mark Patane argued that another contract — the one between the state and Corizon — dictated that the medical company must defend the state from claims like the one filed by the Ellis estate.

    “The state contracted with PHS to defend it and they are required to cover the state. It’s really that simple,” Patane said.

    But Justice John Dooley said his reading of the contract found provisions that appeared to be at odds on the issue.

    “There are broad statements to indemnify and broad statements of noncoverage,” Dooley said. “It seems to me to be dead inconsistent.”

    Patane said the language in the contract was broad enough to cover the events in the case.

    “The contact anticipated this very situation,” he said. “There exists a duty to defend even if the state may have some (negligent conduct claims).”

    Patane also argued that the Rutland civil court judge who ruled that Corizon was not obligated to defend the state did so before there was enough evidence presented.

    “It was an error to grant judgment at the pleading stage when there was a need for discovery to know who caused the injury,” Patane said.

    But Sophie Zdatny, the attorney representing Corizon in the case, told the high court that it was clear the family’s case involving the actions of the state’s former medical director didn’t involve the company.

    “It’s completely focused on the state and the state’s own independent negligence in this case,” she said.

    brent.curtis @rutlandherald.com

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