Odds against inmates in grievances

Delaware's inmates file an average of 500 complaints a month over the quality of health care they get.

It begins when they're denied permission to see someone in the infirmary. At that point, an inmate can file a complaint.

All complaints go directly to Correctional Medical Services, the state's medical vendor, said Department of Correction Commissioner Stan Taylor, "so they can be handled at the local level."

Drewry Fennell, executive director of the American Civil Liberties Union of Delaware, said it can take months -- in some cases years -- for complaints to be resolved. Even when inmates are struggling with an illness, they must exhaust the prison's medical grievance process before taking the matter to court.

"I don't think the system is intentionally set up that way, but, yes, the odds are stacked against [the inmates]," said Gouri Bhat, a staff attorney with the ACLU's National Prison Project, a national organization that files lawsuits on behalf of inmates.

Representatives for Correctional Medical Services, which has a $25.9 million annual state contract, first investigate the grievance. If they determine the grievance is not valid, inmates can appeal to prison guards. The guards, who lack medical training, ask CMS for advice. The final decision rests with two senior Department of Correction officials, who also turn to CMS for advice on medical issues.

The paper trail is monitored by The Delaware Center for Justice, an inmate advocacy organization, which is paid $12,000 annually by the state for its services.

"Our level of intervention is to monitor the grievance process, and we do that," said DCJ's Executive Director Janet Leban. "But no, we don't add any medical expertise. You don't need a medical background to see what medical has recommended in terms of treatment or use of medication. Even with medical training, unless a doctor actually went in and examined someone, how would they know the person had the issues they're claiming to have? You just can't do that. That would be nuts."

Leban didn't know if any inmates had died waiting for their grievances to be resolved.

"It's certainly possible," she said.

Leban refused to release statistics about the grievance process or a copy of her state contract. The state rejected The News Journal's public records request for more grievance information, citing federal health privacy laws.

Taylor said he is searching for money to pay someone with medical training -- independent of the medical vendor -- to oversee the grievance process.

"I'm not completely satisfied with the grievance process," he said.

The ACLU's Fennell said changes need to be made.

"They've placed the administrative process in the hands of the defendant [medical vendor]," Fennell said. "It fails the basic test of administrative oversight. The system is broken."

Circular process

Richard Siefert is the deputy bureau chief of prisons, the second highest-ranking official to oversee the grievance process. Inmates can appeal to Siefert and his boss, Paul Howard, chief of the bureau of prisons. Siefert has an MBA. Howard has a master's degree in counseling. Neither has medical training.

Last month, attorney Stephen Hampton deposed both men for two lawsuits he has filed against the state on behalf of families of inmates who died in prison. Siefert acknowledged that medical grievances and questions are referred back to the medical vendor, but he didn't consider that a conflict of interest.

In a sworn deposition, Siefert and Howard testified they had never considered that the medical vendor might delay or deny medical care to save money. Neither considered investigating whether an inmate had not received adequate care, nor did they ask others below them to investigate inmates' claims.

The Department of Correction, Siefert said, doesn't need to oversee the hundreds of medical complaints filed each month because it trusts the process used to select medical vendors.

"Every vendor, medical vendor that we have chosen has met that criteria," Siefert said in the deposition. "Part of that is not only do they have to have the certification, in order to get the certifications they have to have by history proven that they provide these services within medical industry acceptable best practices. So from my perspective, the selection of the vendor is the guarantee that these people are capable of delivering those things that they say they can."

Hampton, however, sees it differently. "What he's saying is, 'They're a good vendor, because if they weren't a good vendor, the state wouldn't have hired them,' " Hampton said. "It's absolutely crazy."

Going to court

Courts are usually reluctant to interfere in the inmate grievance process, particularly federal courts, where judges often cite a 1995 Supreme Court decision that sets a high standard for complaints.

If an inmate sues for civil rights violations because of poor medical care, he must prove deliberate indifference -- reckless disregard for the consequences of one's acts or omissions. That's a higher standard than medical malpractice, said Jules Epstein, an associate professor at Widener University law school.

"It's really a heavy dereliction -- worse than dropping the ball," Epstein said. "The facts in evidence needed to show deliberate indifference to a serious medical need."

Epstein's law firm successfully sued Philadelphia over substandard jail conditions, but it took more than a decade and hundreds of thousands of dollars.

It's unusual, though, for lawyers to take up the cause of inmates. Most inmates don't have enough money to hire an attorney, so they represent themselves, a practice known as pro se. Documents are frequently handwritten and in layman's English; the courts allow pro se complaints to follow less stringent standards.

As an example, in a 2003 suit filed in U.S. District Court in Wilmington, inmate Jon R. Murphy wrote: "I have a herniated disk in my spine. I have tried to get a bottom bunk ... but have been denied, despite having X-rays and confirmation of the existence of the problem. I am 46 years old. This is not getting better or going away. I hope we can come to an understanding before further action is required."

Murphy did not get his bottom bunk. Judge Sue L. Robinson issued a 10-page ruling dismissing the defendants -- the Sussex Correctional Institution, the warden, CMS and two of its employees.

Dismissed lawsuits

In Delaware, CMS is named many times with other defendants, including the Department of Correction; its commissioner, Stan Taylor; and the medical provider's doctors and nurses. The suits are filed mostly by inmates representing themselves.

Most of the 114 prison health care-related lawsuits filed in U.S. District Court in Wilmington since 1988 -- including some naming First Correctional Medical, the Tuscon, Ariz., firm providing care for Delaware inmates from 2002 through most of July 2005 -- have been dismissed. Reasons given include improper addresses or the court's inability to locate the inmates, who are often moved to different facilities.

"It is certainly very hard for prisoners alone," said Bhat, of ACLU's National Prison Project, explaining that a 1996 federal law imposes filing fees on inmates, even if they don't have money. It also allows the court to review previous lawsuits for legitimacy before a new lawsuit can move forward. In addition, the law imposes limits on the amount recoverable if an inmate wins a claim.

Yet the U.S. Supreme Court has ruled that prisons must establish adequate law libraries for inmates or provide them with legal help.

Inmate George Robinson used one of those libraries to file numerous federal and state lawsuits alleging religious violations and unauthorized release of medical information, among other charges.

Each time he filed suit, he paid a $150 filing fee. He saved money by writing out the duplicates, instead of using the prison copy machine. Robinson said the work made him feel useful.

"The only recourse, other than violence, is to bring outside interference," said Robinson, who was released in March after serving nearly 30 years for arson, auto theft, robbery and assault. "If you don't have someone from the outside interfering, conditions are going to get worse and worse and worse."