Earlier this month, a federal court judge in California put an end to years of legal wrangling about the provision of correctional health care in that state. In a written decision, U.S District Court Judge Thelton Henderson concluded that a Receivership was needed to take control of the delivery of medical services to all prisoners in the state.

“By all accounts, the California prison medical care system is broken beyond repair. The harm already done in this case to California's prison inmate population could not be more grave, and the threat of future injury and death is virtually guaranteed in the absence of drastic action,” Henderson wrote in his order on October 3.

The court is currently conducting a nationwide search for a receiver to take over the troubled health care system, a process that could take a few months. In the interim, the court has appointed John Hagar, a corrections expert who has served as a master in another prison-related lawsuit in California, to oversee correctional healthcare operations.

Corrections officials say they recognize the massive nature of improvements that are required to bring  medical care to the level required by the Constitution.

“We want this thing fixed once and for all. Whatever lengths it takes us, that's where we want to go,” said Todd Slosek, spokesman for the department.

That statement has been a long time coming for those involved in the case.

The class action case that instigated an investigation into health care services within the California Department of Corrections and Rehabilitation, Plata v. Davis, was filed in 2001 on behalf of all prisoners incarcerated in the state's prisons. Ten class representative inmates provided the specific facts of the case.

They claimed they received substandard health care and experienced serious injury from the state's and prison system's deliberate indifference to their serious medical needs when they ignored their requests for care, failed to report medical needs upon transfer and delayed care that ultimately led to some inmate deaths.

According to Alison Hardy, Staff Attorney for the Prison Law Office in California, which represents the inmates in the class-action case, the problems with health care in California's prisons have been long standing.

“The major problem is the health care program has been the poor stepchild of the Department of Corrections. Their first and foremost concern has been the safety and custody of prisoners. Health care isn't what they consider to be their mission,” she said.

In fact, in court testimony, California corrections officials have plainly stated as much.

In previous testimony in the Plata case, Undersecretary of Corrections Kevin Carruth said that medical care is not a “core competency” of the department and is “not the business of the CDC, and it never will be the business of the Department of Corrections to provide medical care.”

Court-appointed experts in the case, who were asked to review health care at each of the department's prisons, have noted that this attitude prevailed and, as a result, the department's inadequate delivery of medical care has led to “a risk of imminent harm and death to patients.”

And, according to Judge Henderson's recent order, despite the efforts of Dr. Rene Kanan, Acting Director of Health Care Services for the department, to make improvements, she has been hampered by a lack of support within and outside the department.

“The court finds, that the Deputy Director is inhibited ‘internally, organizationally' and in her dealings with external governmental organizations to implement Court Orders because the Deputy Director lacks the perceived and ultimate authority over the health care program.”

But this lack of support is only the tip of the iceberg, according to Hardy and those who are familiar with the case.

Problems Pervasive

Court testimony, reports from court experts and attorneys for the plaintiffs all name a number of problems in delivering adequate healthcare to sick prisoners and these have culminated in the Judge's order for Receivership.

According to Henderson's order, the department lacks medical leadership and has not been able to implement changes required by the court, has no data management to track inmate patient appointments and follow-ups and has no system to adequately manage and supervise medical care.

Included in the court-ordered changes are, a new medical protocol for inter-institution transfers, death review process, identification of high-risk patients, Quality in Corrections Medicine evaluations of physicians currently employed and a credentialing policy for physicians. None of these have been implemented to the satisfaction of the court.

Handicapping the implementation of new policies further, according to court appointed experts, is the fact that the health care director is several levels removed from the Secretary who oversees the entire department. This, they believe, compromises the health care director's authority to implement change even if she wanted to.

“The Court finds the CDCR leadership simply has been – and presently is – incapable of successfully implementing systemic change or completing even the minimal goals toward design and implementation of a functional medical delivery system,” Henderson wrote.

Beyond the management problems at the department, Hardy said, are issues with staffing and maintaining a professional atmosphere that have also not been addressed.

“The DOC for many years would hire physicians that virtually no one else would hire,” she said, adding that many physicians are not board-certified or have had their licenses suspended.

The court's investigation into staffing revealed that more than 80 percent of higher level management positions in the Health Services Division are vacant, that the department has not hired regional directors as ordered by the court – which provide supervision to staff at the institutional level --  and there is no central office leadership in nursing.

“They [the DOC] haven't paid very well and never made it a priority. Not only were they hiring people who weren't good, but they couldn't fill all the positions,” said Hardy. “There are prisons that have never been able to fill their vacancies.”

She added that an independent study of nursing staffing last year showed that the department nurses were being paid 20 to 25 percent less than similar positions in the community. Hardy added these salaries would not support hiring a group of professionals who would probably rather work in the community anyway.

Hardy said that problems of oversight at an institutional level persist as well.

Even as recently as a few months ago, the department had hired two nurse practitioners for one institution, but did not provide a local physician to serve as their supervisor. Hardy said when she asked them who was their supervisor or “proctor” to contact when they had questions or problems, their answer was the health care director of the entire department. They had been given her cell phone.

“That is the level at which they are operating,” said Hardy, who added that despite her many other duties, the department's health care director did respond to their questions when they called.

The lack of qualified staff and the lack of oversight over those who treated inmates at the institutions played a major role in the problems revealed in the inmates' case – the most serious of which led to inmate deaths.

“This is the perfect storm of things that could go wrong,” Hardy said. “There was no accountability and no systematic process.”

One uncontested fact of the Plata case – and one the court says is still a problem -- is the statistic that “on average, one inmate dies in the California prisons every six to seven days due to constitutional deficiencies in the medical system.”

The court wants the California prison system to reverse this trend.

Finding Solutions

According to Slosek, the department is in the process of recruiting new doctors and testing for competencies among those who are currently employed – but the task has been difficult.

“It's been a daunting task because of state laws of civil service,” Slosek said. “Bargaining units need to be consulted. It's impossible to fire a doctor on the spot.”

Although the department's central office – as of this year -- currently investigates each new physician hired by the department, a formal credentialing policy has not been adopted.

And, according to Slosek, a program of quality management jointly developed by the University of California San Diego, the court experts and the department has been delayed by the Union of American Physicians and Dentists (UAPD). 

Slosek said the union resisted efforts to improve the quality of its member physicians and to remove those who are incompetent and in May 2005, the UAPD filed suit in the Superior Court of Sacramento County attempting to block defendants' efforts in this regard.

Slosek also cited funding issues, automation delays and political obstacles as contributing the department's inability to make the improvements the court had ordered.

“It's a dicey situation because so many people in California don't have health care, but we are going to work with the courts,” he said.

Judge Henderson in his October order said he recognized the work that the current leaders of the department are committed to.

“In all fairness, the Court recognizes that the current administration inherited many of the problems identified…from past administrators, which must bear much of the blame for building California's vast prison system without regard for inmate medical care,” he wrote. “These leaders have been forthright in conceding their failures, have not attempted to obstruct the receivership process and have shown good faith ad even enthusiasm in discussions with the Court and plaintiffs' counsel about the prospect of working with a receiver.”

Preventing a Breakdown

According to Attorney William Rold, who has worked in many correctional health care cases, there are measures in place to make sure that problems in prison health care never rise to the level of receivership.

He added that judges typically use this tool when they feel that a good faith effort is not being made.

In California's case, there are several things going on in the state, he said, that complicate the corrections system's ability to fix the problem. Chief among them, he said, is the three strikes law, which contributes to people staying in prison for longer periods of time.

“We're going to pay a hundred thousand dollars a year to house someone who stole golf clubs,” said Rold, referring to a three-strikes case before the Supreme Court in which the justices upheld a life sentence for a man whose last “strike” was stealing golf clubs.

In addition, Rold said the prevalence of HIV/AIDS and Hepatitis C in prison requires expensive and necessary treatments and, because offenders are in prison longer, the ailments that come with aging will have to be dealt with as well.

“The major problem in correctional health care is there is too much demand chasing too few resources and that exists everywhere, so you have to have a system of rationing of some sort that is hopefully a real triage, so that those who need the most care get it first,” he said.

In the case of California, according to the court, basic care was never consistent or reliable and the system is in need of drastic repair.

“The numerous deaths and harm from medical misfeasance and neglect have been predictable consequences of what can best be described as a ‘non-system' of care in California's prisons,” Judge Henderson wrote.

“It's going to have to take hundreds of millions of dollars to get this system [in California] up to par,” Rold said.

According to some, including one of the court experts in the case, the problems in California's system are not limited to that state.

Like Rold, Joe Goldenson, Director of Health Services for the San Francisco Jail and an investigator for the court in the Plata case, believes that the number of people being incarcerated contributes to the problems in correctional health care.

“One of the major problems facing correctional health care is the overcrowding in jails and prisons. There are a lot of people who are incarcerated with substance abuse and mental health problems. When there are the appropriate services in the community, that's where they should be,” he said.

Although Goldenson did not wish to talk specifically about the California case, he said generally speaking there are many instances in correctional health care where inmates cannot obtain access to the care they need.

“It seems there are a number of systems where there seems to be a hesitancy to send people out [for treatment in the community,] whether for financial or security reasons and patients have suffered because of [it],” he said.

In addition, he believes there is an attitude among some who work in corrections that inmates should not receive health care because so many in the community do not have access to it.

“That is exacerbated by the total crisis in health care. If people don't get it in the community, then why should [inmates?] My answer to that is people in the community should get good health care also,” Goldenson said.

In San Francisco, jail correctional health care is handled through the city's public health department, which helps create a consistent level of care between the institution and the community.

As for the State of California's corrections system, only time and the Receiver's plan will tell the ultimate outcome, but those watching the case believe that it will ultimately serve the inmates well and may be a model for other agencies.

Resources:

Prison Law Office  http://www.prisonlaw.com/

California Department of Corrections and Rehabilitation - http://www.cdcr.ca.gov/