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Family of man who died of flu at Salem prison sues for $15 million, allege cover-up
Register-Guard - 1/30/2020
A $15 million lawsuit filed by the family of a man who died at the Oregon State Penitentiary accuses prison staff of failing to treat the 54-year-old inmate for flu and then covering up his flu-related death.
Michael Barton of Medford was already experiencing mental illness and dementia when he came down with the flu in January 2018.
According to the lawsuit, he did not receive a flu vaccine at the prison in 2018 or in 2017.
Within a month of becoming sick, Barton was dead.
The wrongful death lawsuit, filed on behalf of Barton's brother Stephen Brown, accuses the Oregon Department of Corrections medical staff and officials of negligence, civil rights violations, disability discrimination and ruining or destroying evidence surrounding Barton's death.
In the days leading up to his death, Barton got dizzy drinking water from his sink. He stopped eating. He wept and begged to go to the infirmary.
But his increasingly panicked requests were ignored, according to a 2019 review of his death by Disability Rights Oregon.
Prison officials declined to comment on the allegations made in the lawsuit or the Disability Rights Oregon review, citing the pending litigation.
"If any public hospital treated patients this way, it would be investigated and shut down," Bryan Dawson, an attorney representing the family, told the Statesman Journal.
He said Barton, while incapacitated with pneumonia and a massive blood infection, was denied effective treatment and told to "take care of himself." His family doesn't want others to suffer the same fate.
Barton entered state custody in 2017 after being convicted of robbing a Medford bank.
Disability Rights Oregon staff attorney Joel Greenberg said signs of Barton's mental illness and dementia can be seen in the botched bank robbery.
Barton told his attorney he decided to rob the bank because he had run out of his psychotropic medications and had no money to pay for more. His attorney described the video of the robbery, showing Barton waiting "politely" in the bank while employees collected money and called police.
Barton pleaded guilty and was sentenced to 70 months in prison with eligibility for early release.
According to the lawsuit, he was scheduled to be released from the Salem prison later this year.
Too sick to stand, eat or drink
Not long after he began his sentence, Barton was transferred to intermediate care housing due to his diagnosis of confusion, bipolar disorder, brain injury, hallucinations and depression, according to the lawsuit.
He struggled with simple tasks like opening his cell door and turning on his water faucet.
The inmate orderlies who visited Barton became concerned for his health when he began exhibiting flu-like symptoms in January 2018.
As his condition worsened, Barton became unable to leave his bunk to get water. Nurses checked in on him without taking vitals or entering his cell -- allegedly a common practice at the prison, according to the report.
From their vantage point at the doorway, they were unable to recognize Barton's semi-comatose state, graying skin, swollen limbs and emaciated body.
One witness was so alarmed, he filed multiple requests for Barton to get urgent medical attention.
He was told Barton could wait for his scheduled appointment the next morning.
According to the lawsuit, one member of the medical staff said they didn't want to admit him to the infirmary because he could get other people sick.
Barton spent his last day at the prison too sick to stand and too weak to drink water from a glass surrounded by uneaten meals. When an inmate helper arrived to take him to his appointment, he could not get out of bed.
The helper had to lift him into the wheelchair and only made it a few steps before Barton's head flopped to one side. He lost consciousness and emptied his bladder. The inmate helper screamed for help and staff responded with a "man down" code.
He never regained consciousness.
By the next day, on Feb. 6, 2018, Barton was dead, having been rushed to Salem Hospital for surgery. After more than a gallon of MRSA-infected fluid was drained from his chest cavity, Barton went into multi-system organ failure and died.
DOC launches investigation
According to the lawsuit, the medical examiner did not perform an autopsy.
The prison's chief medical officer concluded that Barton died from Influenza B, which led to MRSA empyema, which led to sepsis, which led to severe septic shock, which led to cardiopulmonary arrests, multisystem organ failure and severe anoxic brain injury.
A subsequent investigation by the Department of Corrections found that staff failed to recognize that Barton was critically ill and attributed his death to a "system failure" and staffing levels.
A review by Disability Rights Oregon, a nonprofit that advocates for the civil rights of people with disabilities, agreed that a systemic failure led to Barton's death but argued that fault should also be attributed to individual actors.
"Indeed, it is our belief that the conduct of the nurses who responded to Mr. Barton's cell during the last days of his life was surely negligent, if not deliberately indifferent, to the harms that ended his life," Greenberg said in the report.
In a letter to Greenberg responding to the report, Corrections Director Colette Peters said Barton's death was "profoundly" concerning. But she took issue with Disability Right's report, claiming it was incomplete and inaccurate.
She said the department found several factual inaccuracies in it, and she called out the organization for only giving prison officials a single business day to review the report before releasing it to the media.
The advocacy group's report said witnesses reported prison officials responded to Barton's death in a "hush-hush" manner. Media and the public were not notified of his death through the prison's typical notification process.
The wrongful death lawsuit was filed against the Department of Corrections and Peters.It also names several individual nurses, managers and prison officials and accused of them of negligence and discrimination.
His death "deeply disturbed" many of the people working in his unit, according to the report. One witness recalled seeing a corrections officer break down in tears after learning of his death.
The review into Barton's death began after an inmate helper and a corrections employee contacted Disability Rights Oregon with concerns about his treatment and care.
Those who provided information said they were concerned about retaliation from prison officials but felt they needed to speak up about the events leading to Barton's death.
Family members learned of Barton's death from a friend's Facebook post reading "Michael Barton RIP" and did not learn about the circumstances of Barton's death until Disability Rights contacted them in June 2019.
"They are very concerned and hopeful that some substantive changes will be made so that this kind of thing doesn't happen again," Greenberg told the Statesman Journal in July. "They were quite adamant we use Mr. Barton's name. They thought it was important that he be recognized as a person with a name and a family rather than someone with a pseudonym."
Negligence, cover-up alleged
The lawsuit accuses prison staff of negligence on multiple fronts -- for not giving Barton a flu shot, for not entering his cell to take vital signs, for not taking into account his mental illness and for not rendering him emergency aid.
According to the lawsuit, staff did not provide CPR, IV fluids or AED shocks when his condition worsened and he went into cardiac arrest.
Dawson also accused prison officials of "providing a prison infirmary extremely ill-constructed for monitoring and treating inmates with influenza, pneumonia and sepsis" and failing to properly train staff and prevent burnout.
This failure to prevent Barton's death and suffering amounted to a civil rights violation of the Eighth and Fourteen Amendments of the U.S.Constitution, which bar cruel and unusual punishment, Dawson said in the lawsuit.
Staff was accused of disability discrimination for denying medical care to Barton, a person with mental impairment protected under the Americans with Disabilities Act.
"(Their) conduct was carried out with wanton, conscious, reckless and outrageous disregard for Mr. Barton's civil rights, mental welfare and physical welfare," Dawson said.
Lastly, Dawson accused prison officials of covering up and destroying evidence, even though -- or because -- they thought Barton's death could result in legal action.
Staff failed to order an autopsy, disposed of Barton's body, disposed of video footage and photos and discarded documents and evidence related to the death, according to the lawsuit.
"Indeed, within four days of Michael Barton's death, a DOC internal review found several deficiencies related to his death," Dawson said.
In the July report, Greenberg urged prison officials to immediately address the deficiencies in their policies and healthcare.
"There will be other Michael Bartons," he said, "unless ODOC changes a culture that allows its nurses to see patients with cognitive and mental health disabilities as less than human."
For questions, comments and news tips, email reporter Whitney Woodworth at email@example.com, call 503-399-6884 or follow on Twitter @wmwoodworth
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