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Bad Medicine, No Oversight, Total Secrecy: ACLU Reports on VA DOC Medical Care

Bad Medicine, No Oversight, Total Secrecy: ACLU Reports
on Virginia DOC Prisoner Medical Care

by Matthew T. Clarke

In May 2003, the American Civil Liberties Union (ACLU) of Virginia issued a report on the status of medical care for state prisoners in the Virginia Department of Corrections. The report was written by Laura LaFay, formerly the ACLU's associate director.

In fiscal 2002, the DOC spent about $3,000 per prisoner, more than $90 million total, for medical care. Despite these premium rates, the evidence collected by the ACLU showed medical care for prisoners to be "inadequate and substandard" and the medical personnel to be, as the report's title indicates, "Accountable to No One." The DOC denied the report's allegations without addressing its specific factual allegations.

The Good News is, We Keep

the Bad News Secret

Production of the report was hampered by the DOC. The DOC does not compile public reports or databases on prisoner medical care. There is no reliable or constant source of information on prisoner deaths or the prevalence and treatment of communicable or chronic diseases. The few public sources of information are unreliable. For instance, the DOC's website claimed that no Virginia prisoners died of Hepatitis in 2001 while records from the Office of the Medical Examiner of Virginia showed that at least 11 prisoners died of Hepatitis in 2001.

The DOC also attempts to keep secret information which is, or should be, public. For instance, the DOC classifies all information about prisoner deaths as "medical records" and claims exclusion from the Virginia Freedom of Information Act (FOIA) of all information pertaining to deceased prisoners' medical treatment, cause of death and post-mortem reports based on that classification. Even information which is clearly public information is often withheld. The "ACLU spent six months and more than $20,000 in an effort to get information that should be" public. For instance, records of prisoner deaths, which have been required by the federal government under 42 U.S.C. § 13704 since 2001, were sent to the ACLU with portions excised and the backs (which contains information on the circumstances surrounding the death) not filled out. The forms sent to the federal Bureau of Justice Statistics were filled out on the back.

The ACLU filed 11 requests for about 5,000 pages of documents. The DOC cited exclusions to the FOIA 16 times, effectively changing a law requiring freedom of information to secrecy act. The most frequently cited exclusions were FOIA § 2.2-3706(F)(6) (excluding "all records of persons imprisoned in penal institutions provided such records pertain to the imprisonment"), § 2.2-3705(A)(5) (excluding medical and mental health records), § 53.1-40.10 (governing prisoner medical records) and § 32.1-127.1:03 (governing the release of patient medical records generally).

The DOC also frustrates attempts at oversight by simply not keeping records. It keeps no records on the number of prisoners with contagious diseases and/or their treatment, the number of prisoners receiving mental health care, and the number of prisoners with chronic diseases such as cancer and sickle cell anemia. Prior to a federal requirement in 2001, 42 U.S.C. § 13704, it kept no records on prisoner deaths. Exceptions are recent statistics on the number of prisoners with diabetes (1,009 on June 30, 2002), TB (5 on December 31, 2002), and HIV (442 on April 2, 2002). However, those few statistics contain no information on the medical treatment of the prisoners. The DOC refuses to release any information on quality control in the medical system, claiming that they are privileged communications.

Requesting information from the DOC is quite expensive. Photocopying costs 20 cents a page, and months expire before the copies are provided. Copies of files received often are incomplete, requiring followup requests which often do not succeed in getting access to the requested information.

The net result of the lack of public reporting and the withholding of what should have been public information was that the report was written based upon relatively few medical files and the input of prisoners and survivors of deceased prisoners. The ACLU strongly urged the Virginia legislature to address this issue and make the DOC accountable for the public monies spent on prisoner medical care.

The Looming Specter of Hepatitis C

Aside from humanitarian ideals and constitutional requirements, one of the most important reasons for providing prisoners with adequate medical care is that prisons can become incubators of deadly diseases which spread to the outside world when prisoners are released. One such disease is Hepatitis C.

The Hepatitis C Virus (HCV) attacks the liver and is often fatal if untreated. It is transmitted by bodily fluids. There is no cure for HCV, but treatment with alpha-interferon and ribavirin can render HCV undetectable in about half the patients' blood. The medications cost between $10,000 and $15,000 annually per person. Treatment regimes usually last 6-12 months. Regimes using pegelated interferon and ribavirin is the community standard of care according to the National Institutes of Health 2002 Consensus Panel. This is more expensive, but much more effective.

Statistics given out by the Virginia DOC show that about 12,800 (39 percent) of its prisoners are infected with HCV, but only 50 were being treated as of November 2002, and only 320 had ever received treatment. So few prisoners are receiving HCV treatment because the criteria which a prisoner must meet to qualify for treatment is overly stringent. The long list of medical requirements include: a Bilirubin level below 3; Creatinine below 1.5; Albumin below 3.0; INR below 1.2; WBH over 3.0; ANC over 1500; Hct over 30 percent and Pit over 80k. AST, ALT, Alk Phosphate and Cholesterol must be checked. Chest X-rays must be negative. ANA, AMA, Alpha antitrypsin and ceruloplasmin must be normal. Persons with autoimmune disease or any poorly controlled chronic disease (such as COPD, cardiovascular disease, diabetes or psychological disorders) are disqualified. Also required is that the prisoner have at least 18 months left to serve, a life expectancy of at least 20 years, no documented drug use for the 12 preceding months and no history of suicidal behavior. Anyone with a medical or criminal history of drug abuse must have been active in drug rehabilitation for at least the three preceding months.

The report notes that this is not the community standard, and the stringent requirements and time windows result in very few prisoners being qualified for treatment. Furthermore, many of the requirements make no medical sense. Many more prisoners would be qualified if the community standard were applied.

Individual Medical Deficiencies

Due to the dearth of public information on prisoner medical care, the ACLU collected eight prisoners' medical files and had an expert review them. The medical files showed several problems. Only one contained any mental health information and specific requests for mental health information garnered only a few more pages from a second file. Only one file contained the pre-incarceration medical history information taken from all prisoners upon entering the prison system. One file showed a woman had been told she was dying of liver cirrhosis due to HCV, but contained no information showing that she had been diagnosed with HCV. Files of patients with chronic conditions had no indication that necessary periodic monitoring had taken place. Several files showed prisoners being taken on or off psychotropic medication with no indication of the reason for the decision. No file showed that any prisoner had been informed about the spread of infectious diseases. The files contained little evidence of dental evaluations or dental care received. Thorough and aggressive dental care is important for heart disease patients as infected teeth can "seed" the heart with bacteria that attack and damage the heart valves. The poor quality of the files compromised the ability of the expert to evaluate the files and their usefulness to medical personnel.

The report gave specific information on the treatment of some prisoners, many of whom did not survive. These range from a temporary catheter being left in permanently (causing serious infection) to a leukemia patient being treated with a nitro glycerin pill, then Tylenol. He was then told he was faking it because they didn't work. He died a few months later. One prisoner was left to die on the recreation yard after he fell and hit his head, while guards prevented prisoners from giving him CPR, and medical personnel took 20 minutes to respond. Other prisoners were denied treatment for HCV and even punished when they continued to request it. One prisoner with HCV who was being denied treatment sued the DOC before he died of liver failure. However, a court order to treat him did no good as he was too advanced in the progress of the disease by then to be treated. Other prisoners who were lucky enough to be treated for HIV infections could only get the medication sporadicallyincreasing the chance of breeding a drug resistant HIV strain. Some prisoners were told by medical personnel that their only chance in receiving HCV treatment was getting medical clemency to seek free world treatment. None received medical clemency. Generally, the reported medical treatment was abysmal and the results tragic.

ACLU's Recommendations

The report made eight specific recommendations: (1) repeal the FOIA exclusion of "all records of persons imprisoned in penal institutions ...," except for redaction necessary to protect prisoners' privacy; (2) require the DOC to maintain a public database on prisoners with chronic and infectious disease; (3) require the DOC to generate public records about the quantity and quality of medical care it provides; (4) change the state medical examiner's database to include information on where the prisoner was incarcerated; (5) have the governor appoint a board of independent physicians to review and publicly report on prisoner deaths; (6) improve the medical clemency program; (7) change the DOC's HCV Protocol to conform with the recommendations of the Centers for Disease Control and the National Institutes of Health; and (8) train DOC personnel in medical file and record keeping procedures.

Sources: "Accountable to No One: The Virginia Department of Corrections and Prisoner Medical Care," May 2003, ACLU of Virginia, Six North Street, Richmond, VA 23219, Tel. (804)644-8080; Richmond times-Dispatch.

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