Virginia Must Improve Prison Medical Care Under Proposed Class-action Settlement
by David Reutter
The Virginia Department of Corrections (VDOC) has agreed to let a court-appointed monitor examine medical policies at all state prisons, and to allow a third-party physician to oversee health care at the Fluvanna Correctional Center for Women (FCCW) as part of a proposed settlement in a class-action federal lawsuit.
The agreement was reached the same day that U.S. District Court Judge Norman K. Moon held the VDOC could not escape its constitutional responsibility to provide adequate medical care to state prisoners by hiring a private contractor. The parties filed a notice of settlement on November 25, 2014, just six days before a trial was scheduled to begin on the prisoners’ claims that health care at FCCW was so inadequate that it violated their Eighth Amendment rights.
“The Department of Corrections, as with most defendants, does not concede that they were at fault,” said Mary Bauer, director of the Legal Aid Justice Center, which represents the prisoners. “However, you can read into the settlement that significant changes need to be made.”
The lawsuit was filed in July 2012 on behalf of five prisoners at FCCW. [See: PLN, Oct. 2014, p.26]. Judge Moon granted the plaintiffs’ motion for class-action status less than a week before the settlement was announced; further, just prior to the settlement he denied the VDOC’s motion for summary judgment, finding that FCCW officials showed deliberate indifference to the “serious medical conditions” described in the complaint.
“The case concerns allegations of a common course of conduct by Defendants reflecting deliberate indifference to the prisoners’ serious medical needs,” Judge Moon wrote. “As a result, the principal factual and legal questions are common to the entire class, and the injuries that the named Plaintiffs claim to have suffered are typical of those suffered by the other women in the class.”
He continued: “The examples of alleged sub-standard care set forth in Plaintiffs’ pleadings – which are now supported by sworn declarations, deposition testimony and other competent record evidence – are offered as corroboration for Plaintiffs’ assertion that the VDOC has engaged in an ongoing pattern and practice of wrongful, unconstitutional acts and omissions reflecting deliberate indifference to the serious medical needs of the prisoners residing at FCCW.”
The plaintiffs did not seek monetary damages in the suit. “It was never about money for any of the women involved,” said Bauer. “They were all concerned about their health and the health of all the women who are there now and will be there in the future.”
The Legal Aid Justice Center was prepared to go to trial, Bauer stated, but the settlement was welcome news because it meant quicker action to improve medical care for prisoners. Under the proposed settlement an independent monitor will be appointed to oversee health care at FCCW, according to Justice Center attorney Brenda Castaneda. Policies governing medical services at all other Virginia prisons will also be reviewed.
“This will take a number of months to work through,” Castaneda said. “We will proffer an order to the court and the judge will hold a hearing, probably sometime [this] summer.”
The case was temporarily muddied by turmoil involving the VDOC’s medical care provider. Armor Correctional Health Services provided medical care in Virginia prisons until May 2013, when Corizon Health won the contract with a lower bid. Armor was originally named in the lawsuit and Corizon was later added as a defendant. In August 2014, Corizon announced it would terminate its contract with the VDOC the following month, and the state again contracted with Armor to provide prison medical services.
In his order granting class-action status, Judge Moon took aim at Corizon, which had won the contract with a bid that included “capitated financing” which involved a fluctuating monthly pricing schedule based on FCCW’s average daily population. As such, he wrote, the company’s “profit increases as the cost of care it provides to the prisoners decreases, regardless of how much or how little care is provided to the prisoners.”
When the state contracted with Corizon, the company’s lower bid was the “number one difference,” Moon added. And even though the VDOC established monitors over the contract, “when monitoring reports identified serious flaws ... VDOC supervisors left it to the contract monitors to address those issues with the contractor, and the VDOC never contemplated any action to impose a default under the contract.”
That is, VDOC officials failed to penalize Corizon for not complying with its contractual obligations and allowed the company to respond with indifference to the plight of prisoners with serious medical needs by failing to address their serious health concerns, according to a report by Dr. Robert Griefinger, an expert retained by the plaintiffs. Instead, Griefinger stated, Corizon’s response was “highly dispassionate and bureaucratic.”
Depriving prisoners of adequate care, the district court held, “is incompatible with the concept of human dignity and has no place in a civilized society.” The plaintiffs “have suffered and continue to suffer the consequences of a host of serious, systemic failures in medical care,” placing them “at a serious risk of harm, deterioration of their health, and even death.”
The five FCCW prisoners who filed the lawsuit claimed they suffered from a long list of medical conditions and illnesses that had not been properly treated, ranging from blood clots and unexplained weight loss to mysterious growths and hepatitis C.
“The situation of plaintiff Cynthia Scott is illustrative,” Judge Moon said. Scott filed a series of sick call requests, sometimes two or three per week, for swelling in her leg. When a doctor finally saw her he ordered an ultrasound, which was delayed until the equipment could be brought to the prison. When the procedure was eventually performed, the technician found a blood clot; Scott was then sent to a hospital, where doctors discovered “that part of the blood clot had traveled to her lungs, a very serious development that placed her life at risk.”
Further, “medical staff routinely fail to diagnose and treat serious medical problems,” and visits to outside specialists take “up to three weeks or longer just to be approved” and may not occur until six months after they are ordered, the court wrote. Prison medical staff “ignore or refuse to follow the treatment orders of outside providers,” or the orders are sometimes modified. FCCW also denied needed accommodations to prisoners with disabilities and serious medical conditions, Judge Moon found.
Additionally, the lawsuit alleged that inadequate medical care had contributed to the deaths of at least two women: Darlene White, a diabetic prisoner who, after complaining of severe headache and nausea, died in the prison infirmary, and Jeanna Wright, diagnosed with abdominal cancer by an outside physician after prison doctors dismissed her complaints of severe stomach pain and bleeding.
Armor Correctional Health Services resumed providing medical care at Virginia state prisons on October 1, 2014 – after Corizon ended its $76.5 million two-year contract with the VDOC, and less than two months before the proposed settlement was reached.
According to Brenda Castaneda with the Legal Aid Justice Center, Corizon had underbid Armor by approximately $17 million to win the contract in 2013. “It’s possible they decided they couldn’t provide care for the amount they bid,” she said.
In other words, Corizon apparently found it could not make enough money to justify continuing its contract with the VDOC despite providing substandard medical care that resulted in injuries and deaths. Under the settlement agreement in the class-action lawsuit, the VDOC and its medical services provider will have to provide adequate care to prisoners at a correspondingly higher cost. According to an April 21, 2015 status report, the parties are still finalizing the terms of the settlement, which is subject to court approval. See: Scott v. Clarke, U.S.D.C. (W.D. Vir.), Case No. 3:12-cv-00036-NKM.
Additional sources: www.dailyprogress.com, www.newsplex.com, www.greenfield-reporter.com, www.c-ville.com, www.vadoc.virginia.gov, Associated Press
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