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Death Row Prisoners in Two States File Suit over Hip Replacements

by David M. Reutter

The fact that prisoners have a constitutional right to adequate medical care under the Eighth Amendment has long been established. Since the U.S. Supreme Court made that pronouncement in Estelle v. Gamble, 429 U.S. 97 (1976), most lawsuits challenging deliberate indifference by guards and medical staff to a prisoner’s serious medical needs have alleged that such indifference stems from malice or apathy.

However, lawsuits filed by death row prisoners in two states have highlighted other improper rationales for denying necessary medical care: political concerns and financial considerations. The first suit was the subject of a ruling by the Ninth Circuit Court of Appeals, while the other, filed in March 2012, remains pending.

Nevada Department of Corrections (NDOC) prisoner John Oliver Snow, 69, is on that state’s death row. He first complained about hip and leg pain in 2005. Late that year he was seen by Dr. Steven MacArthur, an NDOC staff physician, who told Snow he would schedule him for an appointment with an orthopedic surgeon but never completed a referral or scheduled the appointment.

In response to a January 2006 medical kite, Snow was prescribed Ibuprofen and received X-rays, which were examined by Dr. Eric Goldberg in March 2006. Goldberg diagnosed Snow as having severe degenerative changes in both hips and prescribed Neurontin, a neuropathic pain reliever, to address the hip pain and degeneration.

Dr. Mark Rhodes, an independent orthopedic surgeon, finally examined Snow in September 2006. He confirmed the severe degeneration diagnosis, and his observations led him to conclude that Snow was suffering “excruciating and unbearable pain.” Dr. Rhodes was surprised that Snow was able to walk at all; he ordered pain relievers and recommended a total hip arthroplasty (THA).

In January 2007, Dr. Rhodes found that Snow could “barely walk” due to hip degeneration and that “[t]here is no option here other than surgery for relief (THA Bilateral).” He indicated that Snow’s medical condition was an “emergency.”

NDOC physician Mark Bishop ordered the medication recommended by Dr. Rhodes and referred the surgery recommendation to the NDOC’s Utilization Review Panel (URP). The URP, which is composed of the prison system’s Medical Director and six NDOC doctors who are board-certified in family medicine or similar disciplines, denied emergency hip surgery for Snow because it was not “life-threatening.” The URP said it was “okay to treat pain” but there would be “[n]o joint replacements.”

In March 2007, Warden E.K. McDaniel approved a request to exempt Snow from having to wear ankle restraints or to kneel due to his medical condition. Four months later, Dr. Bishop issued an “urgent” request to the URP for the hip surgery, stating Snow’s condition was “potentially life-threatening.” NDOC physician David Mar prescribed Tylenol and an analgesic balm for pain several weeks later; he decided that nothing else was needed and the URP rejected Bishop’s request for surgery. Eventually, the NDOC began giving Snow oxycodone to address his high levels of pain.

In 2008, Snow filed a 42 U.S.C. § 1983 action that alleged prison officials were deliberately indifferent to his serious medical needs. After the filing of the suit, Snow saw Dr. Richard Long, who recommended a THA. The URP again rejected surgery but more than a year later, in September 2009, it finally approved him for a THA. The district court subsequently granted the defendants’ motion for summary judgment even though the surgery did not occur as scheduled, and Snow appealed.

The Ninth Circuit said it was “specifically concerned with the URP’s repeated denials of Bilateral THA surgery, which had been recommended by specialists and by Snow’s treating physician,” noting that “the URP gave no medical reason for the denials. Instead, the URP either gave no reason at all, or flatly told Snow that they would not approve any requests for joint replacement surgery.”

The appellate court found that such denials had occurred despite the URP’s policy of approving joint replacement surgery when a prisoner’s medical condition significantly interferes with their ability to function. “Snow may prove deliberate indifference by showing that prison administrators or physicians denied, delayed, or intentionally interfered with surgery for his hip condition, or that the way prison staff delivered medical care indicated deliberate indifference,” the Court of Appeals wrote, citing Estelle.

The Court held there was evidence to support Snow’s claim that the URP’s initial denials were based on improper motives. An NDOC nurse testified there was an official policy against treating chronic pain, and Warden McDaniel reportedly told medical staff that “[i]f one of the [death row] inmates gets deathly ill, don’t knock yourself out to save their life. There’s plenty more to take their place.”

The Ninth Circuit found that McDaniel’s comments indicated “the defendants had improper motives when applying the URP policy to deny joint replacement surgery and medical services to death row inmates. A reasonable jury could conclude that the defendants refused to authorize surgery in order to avoid eventually paying for it, relying on the possibility Snow could die of natural causes or be executed by the State in the near future. Evidence of an improper motive can support a conclusion that a defendant acted with deliberate indifference.”

The appellate court determined there was sufficient evidence to show that five of the six defendants were deliberately indifferent to Snow’s medical condition, and thus should not have been granted summary judgment.

The Court of Appeals also held that Snow’s claim for injunctive relief was not moot and remanded that claim for consideration by the district court. Finally, the Ninth Circuit noted the defendants had attempted to argue that a cardiac condition discovered in November 2011 made hip replacement surgery untenable for Snow, but said that may only serve to prove that the defendants’ delays left him “crippled for life” due to their failure to act earlier to provide the surgery. The district court’s summary judgment order was affirmed in part, reversed in part and remanded. See: Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012).

Following remand, the case went to trial in June 2013. The district court granted judgment as a matter of law to one defendant and the jury entered a verdict in favor of the remaining defendants. Snow has since appealed the adverse verdict.

Meanwhile, a prisoner on Kentucky’s death row, Robert A. Foley, 55, has been experiencing persistent hip pain since September 2010.

Prison officials balked at the suggestion that they provide a hip replacement for Foley, as doctors recommended. “Hip replacement for an inmate who has exhausted all appeals and will soon be executed?” wrote Kentucky State Penitentiary Warden Phil Parker in a November 22, 2010 email. “I can see this thing making Fox News on a slow news day, maybe on a busy news day. In fact, I bet [Fox News host Bill O’Reilly] would love to put this on his ‘Pinheads’ commentary. Just a thought to consider before it goes too much further.”

Additionally, a year before Governor Steve Beshear’s re-election, Parker wrote, “I think it is important and all this may have political consequences.”

Foley initially refused the hip surgery, but agreed after guards confiscated a brace he had fashioned out of “flip flops and other everyday items.” Still, prison officials were ready to cancel the $56,000 surgery if an execution order was entered on Foley’s death warrant.

“If and when an order is received to execute Foley, I will contact [then-prison medical director Dr. Scott Haas] to try to stop all medical procedures related to his hip replacement,” Warden Parker wrote.

Finding a hospital and surgeon willing to perform the operation was difficult; although the surgery was initially scheduled for February 28, 2011, those plans were canceled. In March 2013, the Huffington Post reported that two hospitals – the University of Louisville Hospital and University of Kentucky Medical Center – had declined to perform the hip replacement surgery.

Foley’s attorney, Jamesa Drake, is representing him in a civil rights suit filed in March 2012 over the delay in receiving the surgery. “If you’re on death row, it’s just like anybody else,” Drake said. “If you need a new hip, you need a new hip. It hurts.” Foley’s lawsuit remains pending and is in the discovery stages. See: Foley v. Thompson, U.S.D.C. (E.D. KY), Case No. 3:12-cv-00012-EBA.

Sources: Courier-Journal, Huffington Post,

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Related legal cases

Snow v. McDaniel

Foley v. Thompson