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Tennessee: Federal Court Orders Interim Medical Care in Prisoner’s Pro Se Suit

Following an evidentiary hearing on November 15, 2013, U.S. District Court Judge William J. Haynes, Jr. ordered Tennessee prison officials to provide medication to a prisoner with a severe case of Gastroesophageal Reflux Disease (GERD) until he could be seen by a specialist.

Robert Z. Whipple III, a state prisoner housed at the Turney Center Industrial Complex, filed a pro se lawsuit in September 2013 against Tennessee Department of Correction (TDOC) Commissioner Derrick Schofield and eight other prison officials and private medical contractors, alleging failure to provide adequate medical care.

Whipple stated he was receiving treatment for GERD until May 2013 when the TDOC’s Pharmacy & Therapeutics Committee removed his prescribed medication, Prilosec, from the state’s formulary – a list of approved drugs that prison doctors can prescribe. The removal from the formulary prevented medical staff from renewing prescriptions for that medication for all prisoners, regardless of their medical needs. Instead, Prilosec, an over-the-counter medication, was placed on the institutional commissary list for prisoners to purchase. Whipple could not afford to buy the Prilosec he needed from the commissary, and accused TDOC officials and Corizon, a private prison medical contractor, of deliberate indifference to his serious medical needs in violation of the Eighth Amendment.

Employees of private, for-profit companies made up over 70% (10 of the 14 members) of the TDOC’s Pharmacy & Therapeutics Committee at the time the formulary was changed. Three of the Committee members were employed by Corrections Corp. of America, while seven were employed by Corizon.

“It is pretty clear why this committee would vote to stop providing medications that are the most prescribed to increase the profit for their company,” Whipple said. “This committee never examined me, never read my chart, and they do not even know my name. In fact, some of the members of this committee are not even licensed physicians, yet they were permitted to stop my doctor from giving me the medications I need,” he added.

After Whipple filed suit he moved for a temporary restraining order. In granting the motion the district court wrote, “The plaintiff is to receive over-the-counter Prilosec medication until the plaintiff is treated by a specialist.... Defense counsel is to file a copy of specialist’s report with the Court.”

PLN managing editor Alex Friedmann sent a letter to Commissioner Schofield and the TDOC’s medical director and director of clinical services on November 26, 2013, raising concerns about the composition of the Pharmacy & Therapeutics Committee and changes to the prison system’s formulary that required prisoners to purchase certain medications from the commissary. The letter specifically cited Whipple’s case, and noted “that having the Pharmacy & Therapeutics Committee stacked with employees from private contractors, which have a profit motivation to cut costs, puts the financial needs of those contractors above the medical needs of TDOC prisoners.”

Despite Whipple’s initial success in obtaining a temporary restraining order to receive his GERD medication, he has not yet prevailed in his protracted lawsuit. The district court has since denied his motions for preliminary injunctions and has refused to appoint counsel. However, after Whipple asked the court to order TDOC officials to provide him with an ongoing 45-day supply of GERD medication, the defendants responded on February 11, 2016 by saying the TDOC’s Associate Medical Director had “personally placed a medical order for Plaintiff to receive a 60 day supply of Prilosec.” The case remains pending. See: Whipple v. Schofield, U.S.D.C. (M.D. Tenn.), Case No. 1:13-cv-00109. 

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Related legal case

Whipple v. Schofield