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Michigan Prisons: Another CMS Failure in Privatized Prisoner Health Care

by David M. Reutter

Another state prison system that subjected itself to the experiment of privatized medical services has learned the same hard lesson suffered by other states: a trail of inadequate care that leaves prisoners dead or maimed. This time the Michigan prison system is under pressure by the mainstream media and the Governor's office to examine the health care provided to prisoners by Correctional Medical Services (CMS).

CMS is no stranger to PLN readers. In our December 2005 issue we detailed the inept and non-existent care provided to Delaware prisoners. While Delaware's experiment with privatized prison health care goes back 20 years, Michigan opened its prisons to HMO-style for-profit medical services in 1997, when it contracted with United Correctional Managed Care. CMS assumed the contract the following year; in 2004 the company's contract was renewed for three more years through April 2007.

Michigan's experiment is mainly isolated to what are known as the "Hadix prisons," so named after a lawsuit that has put prisons in the Jackson area under federal oversight for more than a decade (Hadix v. Caruso, USDC WD MI, Case No. 4:92-CV-00110-RAE). That lawsuit sought to improve medical care and other prison conditions.

Because of their usually rural locations and low wages, prisons often have difficultly attracting health care professionals. Michigan had that problem, and turned to CMS for help. "Before we went to them, it had been extremely difficult for us to find doctors and midlevels to come and work for us," said Russ Marlan, spokesman for the Michigan Department of Corrections (MDOC). "They dramatically reduced our vacancy rate for medical care."

CMS also dramatically reduced the effectiveness of medical care in an already troubled prison system. The company disputes that finding, contending it "provides medical care that's evidence-backed and medically necessary, and those services are provided at the community standard of care," according to CMS spokesman Ken Fields.

Nothing to Worry About

Prior to his arrest, Lloyd Byron Martell, 41, was a Detroit mechanic. In 2004 he fled from police who were trying to pull him over for a broken window. As he had a suspended license, Martell tried to outrun the police; subsequent charges landed him in prison for 1 to 4 years.

In December 2004, Dr. Jerome Wisneski, a CMS physician, lanced what Martell believed was a hemorrhoid. Dr. Wisneski told Martell he would be fine. "He said it was a clean cut," Martell told a Detroit Free Press reporter in June 2006 while sitting in a wheelchair with a colostomy bag attached to his stomach at the Charles Egeler Center in Jackson. "He said it was all contained in the tumor and I didn't have anything to worry about."

It was later learned that Dr. Wisneski's erroneous diagnosis will cost Martell his life. It was not until Martell was bleeding from the rectum and unable to walk in October 2005 that CMS finally decided to send him to the Foote Hospital in Jackson. The community standard of care provided at Foote revealed that Martell had terminal colon cancer.

Foote's oncology report is denouncing: "Lloyd Martell is a 40-year-old inmate whose history dates back to December 2004 when he underwent resection of a polyp that, in fact, did have evidence of adenocarcinoma, but no further intervention was made."

The MDOC gave Martell a medical parole in August 2006, which relieved the prison system from the cost of his subsequent medical care. For Martell, the important thing is that he will not die in prison. Instead, he can spend the last year doctors say he has left with his loved ones, including his six-year-old son.

Martell vows to not go without a fight. He is suing CMS and MDOC for medical malpractice. "They tried to kill me in there, but it's not over," he said. "It's going to be a short battle, but a good one."

As Martell observes, "All this was unnecessary." His December 2004 tumor removal revealed that it was medically necessary to provide cancer treatment, which CMS failed to do. The cancer has spread from Martell's colon to his chest and can't be stopped. Martell's 1 to 4 year bid turned into a death sentence. The ironic part is that under Michigan law there is no death penalty; unless, that is, you're subject to the state's privatized prison health care system.

Dr. Wisneski was involved in a previous lawsuit that claimed he had improperly performed surgery on Michigan prisoner Richard LeMarbe, which resulted in serious internal injuries. That case was settled in 2001 for $150,000. See: LeMarbe v. Wisneski, 266 F.3d 429 (6th Cir. 2001), cert. denied, 535 U.S. 1056 (2002) [PLN, Oct. 2002].

A Hidden Problem

Despite being under federal court supervision, most cases of incompetent and negligent medical care, misdiagnosis, delayed or denied treatment, withheld pain medication and poor accommodations for people with disabilities in Michigan's prisons get little attention, much less a remedy.

"If you read the Hadix findings, any individual case might be egregious, but it's the systematic failure that's gut wrenching - that really turns your stomach," says Paul Reingold, director of the University of Michigan Clinical Law Program.

An expert witness in the Hadix case, Dr. Jerry S. Walden, found that a "clerical error" resulted in almost no death certificates being recorded in the spring of 2006 for prisoners in Hadix prisons.

Dr. Walden examined 16 prisoner deaths. He found that prisoners with life-threatening diseases languished in their cells until death overtook them. One suffered a two-year delay in the diagnosis and treatment of bladder cancer.

What is a prisoner entrapped in such circumstances to do? Sadly, not much. Grievances are usually reviewed by the same people denying adequate care, or answered by officials with no medical training.
Families are often ignored or denied information based upon confidentiality laws. Most prisoners are not equipped with an understanding of litigation tactics to prosecute a civil action. Many lawyers refuse to touch prisoner litigation due to the cost of experts, limits on fee recovery under the Prison Litigation Reform Act, and unsympathetic juries.

These factors allow the medical neglect that occurs in many Michigan prisons to remain unseen and uncorrected. Michigan's legislature closed the state's independent corrections ombudsman office in 2003. Prior to that closure, health care had become the top complaint. MDOC thereafter told Prison Legal Services of Michigan to clear out of its Jackson prison office. In 2005, MDOC made it even harder to expose health care problems by imposing a minimum $20 fee for a copy of a prisoner's medical file, as opposed to the previous cost of 25 cents per page.

The U.S. District Court over the Hadix lawsuit only recently - on December 7, 2006 - appointed an Office of Independent Medical Monitor to ensure prisoners with chronic and untreated medical problems receive adequate treatment. In issuing that order, the Court said the state's prison health care system was "systematically defective, dangerous and readily results in preventable death, illness and suffering due to untreated serious medical conditions." Hadix v. Caruso, 465 F.Supp.2d 776 (W.D. Mich. 2006). [See related article in this issue of PLN, "Michigan's Prison Health Care System Found Contemptuous"].

MDOC contracted with CMS in hopes of improving its primary health care, or so it says. That has not been the result, however. "The medical neglect seems worse, not better," said Patricia Street, an attorney in the Hadix case. "CMS has not adequately supervised its doctors or made timely specialist referrals, and MDOC seems unwilling or unable to see that it does."

Then again, perhaps MDOC's real reason for experimenting with privatized medical care was not to improve the treatment that prisoners receive. Considering MDOC officials' braggadocio that CMS saves the department $10 million annually, its motivation for defending the company's substandard services and allowing CMS to maintain its course of inept health care is more likely fiscal savings.

And this is a compelling motivation, as MDOC is under strong pressure to cut costs as part of an effort to rein in the state's $686 million budget deficit. But according to an April 2, 2007 news report, state officials project certain prison medical expenses, including hospitalizations, to run 61 percent over budget by the end of the fiscal year - from $58.8 million to $95 million. Remarking on the anticipated increase, MDOC chief financial officer Barry Wickman stated the obvious: "It's huge."

Losing Legs to Save Dollars

Martinique Stoudemire admits she deserved to go to prison. From 2000 to 2002, she served as a getaway driver for her brother, who robbed several party stores. She received a sentence of 11-30 years for armed robbery.
Before entering Scott Correctional Facility, Stoudemire had a history of Lupus and blood problems. She was regularly monitored by her doctors, who prescribed blood thinners.

All semblance of care went out the window when Stoudemire began serving her sentence. Prison doctors ignored her severe chest pains and body swelling in late 2002 and early 2003, despite being aware of her medical history. The result? Both her legs had to be amputated below the knees. The right one went in December 2003; the left one in January 2004.

The lack of care provided to Stoudemire may have saved the MDOC the cost of medical tests and expensive medication, but it cost Stoudemire her legs. In the long run, taxpayers may spend exponentially more than they would have if Stoudemire had been given proper treatment in the first place. Not only is there the cost of amputation surgery and prosthesis fittings, but taxpayers now face a lawsuit and the cost of care for her pre-existing medical condition.

Denying Care

Nationwide, prisons are dealing with an increasingly aging population of elderly convicts who have extensive medical costs due to their deteriorating physical conditions.

In August 2002, the denial of care to an unnamed 76-year-old MDOC prisoner probably led to his death. The prisoner had a history of heart disease, emphysema, diabetes and hypertension. On a scorching August day he repeatedly requested help for his deteriorating heart condition.
Prison medical staff refused to provide treatment, forcing him to walk to his work assignment in a heat wave. He died hours later.

Anthony McManus, a mentally ill prisoner incarcerated at the Baraga Correctional Facility, starved to death on September 8, 2005. He had refused to eat and weighed only 75 pounds when he died. CMS doctors had refused to examine him.

Jackie Deming, a friend of Michigan prisoner Fredrick Heinz, 51, testified before a legislative committee about Heinz's inadequate medical treatment. Heinz, who had Hepatitis C, was diagnosed with stomach cancer in November 2006. Prison medical staff gave him Tylenol for his pain, then discontinued even that small relief when he asked for stronger medication, Deming said. He was scheduled for surgery but was transferred to another facility before the surgery took place. Heinz couldn't speak on his own behalf; he died in prison on February 5, 2007.

CMS was dismissive of such incidents. "Allegations in a lawsuit are not necessarily factual, unbiased, or accurate. They are the statements of the plaintiff, who is seeking to pursue a lawsuit and win a judgment.
Correctional healthcare professionals take very seriously their commitment to provide appropriate care," said spokesman Ken Fields, who apparently has never been on the receiving end of CMS's "appropriate care."

Four-Pointed to Death

One such lawsuit was filed by the family of Timothy Joe Souders, 21. Souders was a mentally ill prisoner being held at the Southern Michigan Correctional Facility when he died on August 6, 2006.

Souders was serving a 3 to 5 year sentence for actions that stemmed from his attempt to steal two paintball guns from a Michigan department store. He was charged with resisting arrest and assault after he approached officers with a knife. After being subdued by a Taser, Souders was taken to the Lenawee County Jail. Once there he tried to hang himself from a noose fashioned out of material from jail coveralls. He was charged with malicious destruction of police property.

It was evident to prison staff that Souders was mentally ill. He was placed on medication to treat manic-depression, psychosis, bipolar disorder and hypertension. By March 2, 2006 - 4 months after he entered prison - Souders had received seven misconduct reports.

Prison officials took action against Souders on August 2, 2006 for "unruly behavior" because he had taken a shower without permission. He was placed in a small, windowless prison cell that had only a toilet and a metal bed. Souders was stripped naked and secured to the bed with four-point restraints. Over the next four days he was chained to the bed for up to 17 hours at a time and the water in his cell was turned off.

Dr. Robert C. Cohen, a court-appointed Hadix monitor, determined that the heat index in Souder's cell reached 106 degrees. MDOC spokesman Russ Marlan contended that Souders had received proper care. "He was fed, he was given water, and he was given his medication," said Marlan.

However, two hours after being taken out of restraints on August 6, Souders was "found to be unresponsive and without pulse and respiration." He died due to dehydration. His family was not advised of the circumstances surrounding his death.

"We weren't aware of any of this," Timothy's father, Steven Souders, said. "I've been told for two weeks that my son died in his sleep until I read a newspaper article."

Timothy Souders' death was discovered by Dr. Cohen when he visited the prison several days after Souders died. His death was "predictable and preventable," Cohen wrote. It was "a terrible, unnecessary tragedy."
The types of medications that Souders was taking put him in particular danger. "Actively psychotic patients with cardiac conditions in four point restraints are at significant risk of death," Cohen wrote to the plaintiffs' attorney in the Hadix case.

What Dr. Cohen learned about Souders' death so disturbed him that he wrote a special report to U.S. District Judge Richard A. Enslen, who is overseeing the Hadix case. "Although the circumstances of [Souders'] death overwhelmed my visit - there are a number of additional continuing serious deficiencies in the medical program which require immediate attention, some of which may have contributed to the abject failure to provide [Souders] with medical care," Cohen stated.

On November 13, 2006, Judge Enslen issued an order banning the use of non-medical punitive restraints, determining that they constituted torture, and reinstated a consent decree concerning prisoners' mental health treatment. Hadix v. Caruso, 461 F.Supp.2d 574 (W.D.Mich. 2006).
[See related article in this issue of PLN, Michigan's In-Cell Restraints Considered Torture; Injunction Issued].

Like Martell, Souders' short prison bid was transformed into a death sentence by inadequate medical care. Souders' death was so egregious that it was covered by the mainstream media, including a 60 Minutes report that aired on February 11, 2007 which showed a prison surveillance video of Souders' slow and lingering demise (see:

The lawsuit filed by Souder's family is still pending; they are represented by the Southfield, Michigan law firm of Geoffrey Fieger. CMS is named in the suit. Although the company doesn't provide mental health services at MDOC facilities, Souders received virtually no medical care during the four days that culminated in his death. See: Souders v. Burt, USDC ED MI, Case No. 2:06-cv-14353-BAF-WC.

Oust CMS?

Each year, the MDOC must report to the Michigan legislature. Its July 1, 2006, report on health care stated, "Quality is monitored through several internal mechanisms. Investigation of prisoner grievances, family complaints and issues brought to the MDOC by Legislators have assured that the quality of services provided by CMS meets MDOC expectations."

Hadix expert Elizabeth J. Ferguson disagreed with that rosy assessment. "Little that is fundamental has improved for prisoners in Hadix facilities. Most issues for prisoners with disabilities are inextricably linked with systems problems that impair the health care of all prisoners. I continue to find examples of pain, unnecessary suffering, and delays in accommodations in treatment," Ferguson wrote on July 10, 2006.

After the dismal state of Michigan's prison health care was exposed in a series of damning investigative reports by Detroit Free Press staff writer Jeff Gerritt, Governor Jennifer Granholm ordered an independent review of MDOC's $190 million a year medical system.

MDOC requested that the National Commission on Correctional Health Care (NCCHC), a non-profit agency, conduct the review. "We want to move as quickly as we can," said MDOC spokesman Russ Marlan. "This will include everything. It will cover CMS, our employees, our interaction with the Department of Community Health, and both the mental and physical aspects of health care." The NCCHC has been criticized as being a rubber stamp defense for prison medical systems being sued since it does not measure whether prisons and jails are actually providing adequate medical care to prisoners, only whether they have the policies in place, on paper, to, in theory, do so.

Some criticized the timing of MDOC's action. "The department showed no interest in this prior to these stories [by the Detroit Free Press]," stated Sandra Bailiff Girard, executive director of Prison Legal Services of Michigan. Others criticized having NCCHC conduct the assessment, noting that the chair of NCCHC's Board of Directors, Dr. George Pramstaller, is also MDOC's Medical Director. "We question whether oversight will come from a review done by the very person who runs the failing program," said Elizabeth Alexander, Director of the ACLU's National Prison Project. In fairness, though, the court-appointed monitor in the Hadix lawsuit, Dr. Robert Cohen, is also on NCCHC's board.

CMS continues to profess a no-worry attitude. "We certainly have participated in reviews of inmate health care in other states and generally work well with those types of procedures," said company spokesman Ken Fields. Things have not always gone well for CMS, however.
Some state and local governments have discontinued their contracts with the company, CMS has been fined for contract violations, and numerous lawsuits have resulted in damage awards and settlements. However, the states then contract with Prison Health Services or another company and get the same results which leads to a revolving door of greedy, sub standard and murderous medical contracting companies, and then CMS often gets the contract a few years later.

For example, CMS was ordered in Feb. 2003 to pay $1.75 million resulting from an Illinois jail suicide [PLN, Nov. 2003 and Dec. 2004]. The company settled a wrongful death suit in October 2005 involving Delaware prisoner Anthony Pierce, who developed a 10-inch cancerous lump on his head that CMS staff failed to treat. The settlement was confidential.
Most recently, on March 28, 2007, another Delaware prisoner, Richard Mark Turner, won a pro se federal lawsuit against CMS; the judge granted Turner's motion for summary judgment, finding the company had provided him with "obviously inadequate" care. Damages have yet to be determined in that case.

Change is Needed

MDOC currently oversees almost 50 state prisons. Throughout this article the prisons covered by the Hadix litigation have been mentioned, but those only consist of three facilities that comprise the Jackson prison complex: Southern Michigan Correctional Facility, Parnell Correctional Facility, and the Charles Engler Reception and Guidance Center. On February 20, 2007, the MDOC announced plans to close the Southern Michigan facility and disperse prisoners to other prisons, prompting the Court over the Hadix litigation to issue an injunction enjoining the closure until the medical needs of the prisoners to be transferred are addressed. See: Hadix v. Caruso (2007 WL 710136).

While some light has been cast upon the darkness of health care at those prisons because of the Hadix lawsuit, one can only wonder what horrors may be occurring at MDOC's other 45 prisons that are not subject to any such scrutiny.

It's unclear how many other Michigan prisons receive medical services from CMS, but it is known the company has a $70 million annual contract with MDOC, which comprises more than a third of the department's entire health care budget. One would expect that with a federal court supervising prison medical care, any actions taken would be to improve health services so as to remove such judicial supervision.

Yet Dr. Walden, an expert in the Hadix case, has found the opposite to be true. "My findings are - similar to my previous findings but in critical respects worse. There are a series of problems that interact to create a serious danger to the health of Hadix class members," he said.

Dr. Walden found the health care system in MDOC suffers from a "culture of failure" that is not being addressed. "Sadly, CMS, MDOC, and nursing can each point a finger and nothing will change," Walden stated. "There is a system problem and one that leadership needs to change."

The question is will that change come, and what must be done to make the change. CMS contends it provides medically necessary care that is evidence-based. In the case of Lloyd Martell, the evidence revealed he had cancer yet CMS doctors allowed the cancer to spread unchecked until it became terminal. For Martinique Stoudemire, the evidence was that her medical needs were neglected and both of her legs had to be amputated as a result. The evidence in Timothy Souders' death speaks for itself.

We can only wait to see the results of the investigation ordered by Governor Granholm. In the meantime, MDOC's contract with CMS, which expires on May 1, 2007, may be extended for another year while the National Commission on Correctional Health Care completes its review of the state's prison medical services. Dr. Walden has already concluded that one course of action must be taken, stating, "I am convinced that the necessary leadership will never be in place until CMS is ousted."

That after more than two decades of litigation prisoners in three Michigan prisons still cannot receive minimally adequate medical care and the medical needs of the vast majority of Michigan prisoners are often ignores speaks volumes about the failure in leadership and oversight by the Michigan legislature and governor and the haphazardness of court litigation. Based on prior experience, business as usual will continue with prisoners still dying, the media goes on to other stories and the courts are worn down by the Michigan DOC's endless resistance to both constitutional medical care and court supervision.

William Clancy, an MDOC psychologist and steward for the union that represents state prison employees, was equally blunt: "I ask you, if CMS is providing medically necessary service, then why are prisoners dying unnecessarily?" Which is a damn good question that CMS and MDOC officials have consistently failed to answer.

Sources: Detroit Free Press; Daily Telegram; Associated Press; Detroit News; Grand Rapids Press; "Prison Healthcare: An Overview," Michigan Senate Fiscal Agency (Sept. 2000)

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Related legal case

Romesburg v. Trickey

Romesburg v. Trickey, 908 F.2d 258 (8th Cir. 07/03/1990)


[2] No. 90-1284EM

[3] 908 F.2d 258

[4] filed: July 3, 1990.


[6] On Appeal from the United States District Court for the Eastern District of Missouri.


[8] Counsel who represented the appellant was pro se.

[9] Counsel who represented the appellee was Joseph M. Hepworth, St. Louis, Missouri.

[10] Arnold, John R. Gibson, and Wollman, Circuit Judges.

[11] Author: Arnold

[12] ARNOLD, Circuit Judge.

[13] Earl Romesburg, a Missouri inmate, appeals the District Court's*fn1 order dismissing his 42 U.S.C. ? 1983 action with prejudice as a sanction for his intentional misrepresentation of his financial status on his affidavit of poverty, filed in order to proceed in forma pauperis. We affirm.

[14] Romesburg's motion to proceed in forma pauperis was granted by a magistrate, and his complaint was filed in the District Court. Romesburg requested appointment of counsel, which the District Court granted. An amended complaint was filed by counsel alleging that defendant prison officials displayed deliberate indifference to Romesburg's serious medical needs (injuries from a fall and constipation).

[15] The parties engaged in a significant amount of discovery. A week prior to trial defendants filed a motion to dismiss the complaint and to revoke Romesburg's in forma pauperis status. Defendants alleged that Romesburg had misrepresented his assets in his affidavit seeking in forma pauperis status by stating that he owned no real estate. Attached to defendants' motion were copies of a warranty deed and title search indicating that Romesburg owned (with his wife) at least four apparently unencumbered lots in Hickory County, Missouri. Romesburg responded by stating that his ownership of the property did not alter his ability to pay an attorney to prosecute his action, because his elderly wife lived in the house on the property, and the property was worth only $5,000. He also argued that he completed the affidavit with the advice of a "jailhouse lawyer" who told him that real estate ownership was not relevant to in forma pauperis status.

[16] The District Court found Romesburg's omission of his real estate holdings to have been a conscious, deliberate, and intentional act. The Court rejected Romesburg's reasons for the inaccurate affidavit, stating that Romesburg was not entitled to substitute his judgment for that of the Court regarding in forma pauperis eligibility, and that he was not excused by his receipt of poor advice, inconsistent on its face with the Court's form of affidavit. The District Court recognized that dismissal with prejudice was a severe sanction, but stated that the alternative of allowing Romesburg to proceed without a court-appointed attorney would not be an adequate deterrent.

[17] As the District Court recognized, this is apparently a case of first impression for this Circuit. 28 U.S.C. ? 1915(d) authorizes a court to "dismiss [a] case if the allegation of poverty is untrue," but it does not specify whether the dismissal is to be with or without prejudice. Although dismissal with prejudice is a drastic sanction which should be exercised sparingly, Brown v. Frey, 806 F.2d 801, 803 (8th Cir. 1986), we agree with the Third, Sixth, and Eleventh Circuits that district court has the discretion to dismiss a case with prejudice where a plaintiff has in bad faith filed a false affidavit of poverty. Harris v. Cuyler, 664 F.2d 388, 389-91 (3d Cir. 1981); Thompson v. Carlson, 705 F.2d 868, 869 (6th Cir. 1983) (per curiam); Dawson v. Lennon, 797 F.2d 934, 935 (11th Cir. 1986) (per curiam).*fn2 Here, there is sufficient evidence of bad faith to support the District Court's decision. Romesburg's motion for appointment of counsel on appeal is denied.

[18] Accordingly, the judgment of the District Court is affirmed.


Opinion Footnotes


[19] *fn1 The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern and Western Districts of Missouri.

[20] *fn2 Two district courts in other circuits have chosen to follow Harris. See Richmond v. Housewright, 101 F.R.D. 758, 759 (D. Nev. 1984); Ferguson-Bey v. Lever Bros. Co., 586 F. Supp. 1435, 1441-42 (D. Md. 1984).