In a recent article from Prison Legal News entitled, “New Mexico Court Denies Motion to Dismiss Lawsuit Over Policy of Denying Transport to Medical Appointments During Lockdowns”, yet another series of systemic flaws in the medical care of New Mexico Corrections Department (NMCD) inmates are highlighted. The article explains the systemic failures to appropriately deal with emergent inmate medical conditions. It does so by taking a look at the recent Federal Court denial of a New Mexico Corrections Department (NMCD) Motion to Dismiss a lawsuit alleging that NMCD systemically and deliberately denied inmates to emergency medical care resulting in catastrophic yet avoidable harm to the inmate.
Massive Inexcusable Delay in Emergency Care for NMCD Inmate
The incident which led to the filing of a lawsuit for medical malpractice by a New Mexico prison inmate, involved an assault upon the inmate while he was incarcerated. Though he had sustained multiple facial fractures and required a corrective surgical procedure, nearly six months elapsed before he was finally seen by a surgical specialist. At that time it was determined that he had two options; either undergoing facial implant surgery or re-breaking the bones and resetting them. Both procedures involved high risk of “blindness, drastic head and facial scarring, pain and a long healing period.”
The Plaintiff’s filing cited the warden’s policy of depriving inmates in need of emergent medical care during facility lock-downs as the reason successive appointments were cancelled and his medical care unduly denied. As an aside, it is the opinion of Collins & Collins, P.C. that NMCD frivolously and irresponsibly uses lockdowns for convenience of the NMCD, not prison safety. It is also the opinion of Collins & Collins, P.C. that NMCD uses lockdowns due to gross understaffing of prison guards which arguably make lockdowns necessary.
Back to the federal court decision, the District Court judge in response to the Defendant’s Motion to Dismiss, ruled that the Plaintiff had met both the objective and subjective components in his claim for deliberate indifference. This is noteworthy in that deliberate indifference which must be proven for civil rights claims under Section 1983 is a very high burden. Deliberate indifference is akin to recklessness in personal injury cases outside of the civil rights contexts. Key elements in the court’s consideration were that the Plaintiff’s injuries were readily apparent, even to a lay person, and that facility staff repeatedly ignored requests for medical care which led to substantial harm.
Department of Corrections Policies on Emergency Medical Care and Transport
The New Mexico Corrections Department policy CD-173101 Transfer of Inmates with Acute Medical Illness reads;
“When qualified health personnel, the local health care authority, the Warden, or the Shift Commander identifies an emergency medical situation that could result in the loss of life or serious harm to an inmate, he or she will immediately call 911 and request ambulance transport for the inmate to the nearest appropriate health care facility.”
First, the use of the terms “emergency medical situation” and “serious harm” in conjunction with the potential decision-makers is important. Shift commanders and wardens are not qualified health care personnel so it is unclear as to why they would be listed in a policy directive dealing with a determination of an emergency medical situation or condition. Perhaps listing them is attributable to the widely covered under-staffing of medical personnel in New Mexico’s prisons. Last year, for example, the private medical care provider on contract with the New Mexico Corrections Department, was fined $2.1 million for not meeting its staffing requirements under the General Service Contract which it signed in June of 2016. The policy of allowing non-medical NMCD personnel to make medical decisions has costs the State of New Mexico, NMCD and New Mexico taxpayers millions more. It will costs untold millions in the future to
the State of New Mexico, NMCD and New Mexico taxpayers in medical costs, New Mexico Medicaid, disability costs and legal fees unless these insanely irresponsible policies are changed.
Medical Understaffing and Other Violations of Medical Standards of Care
When key medical staff are missing from the organizational chain-of-command at a given facility, responsibility devolves to medically unqualified medical and/or correctional staff. This leads to catastrophic and permanent injuries o inmates.
However, medical understaffing is not the only problem at NMCD that leads to the aforementioned injuries and consequent costs. The National Commission on Correctional Health Care (NCCHC) and the American Corrections Association (ACA) provide standards for the delivery of healthcare services in adult correctional institutions—including emergency medical services and transport. In spite of the fact that the private provider agreed and is mandated to maintain NCCHC accreditation by the NCCHC, not a single NMCD facility is currently accredited by the organization.
Why so one might reasonably ask? Because NMCD has determined in its wisdom that NCCHC accreditation and compliance is no longer important since the new medical provider has taken over the medical care of NMCD inmates. Following up on this question, it might be asked why such a decision was made. Collins & Collins, P.C. is actively pursuing answers to this very important question.
Unicorns, Rainbows and Addressing Emergent Medical Need in New Mexico Prisons
Similarly, Collins & Collins, P.C. clients and countless other callers have repeatedly and consistently raised the issue of the flawed NMCD medical grievance system. Under the Prison Litigation Reform Act (PLRA), inmates are required to “exhaust all available administrative remedies” But locating an instance wherein an inmate’s properly filed grievance receives proper address is akin to chasing rainbows and unicorns. Over and over again, in case after case, the story we hear from our clients and other callers is the same: They file a grievance—this includes emergency medical grievances—and their grievances go unanswered.
Most of these inmates insist that their grievances have been thrown away or otherwise destroyed. Unfortunately, even when they are addressed by NMCD, NMCD almost universally rules against the inmate. In fact, despite hundreds of calls and other inquiries, Collins & Collins, P.C. has have yet to encounter a situation where a medical grievance was found in favor of an inmate. In essence, when the grievances are not disappeared, NMCD acts as a rubber stamp on medical negligence within its facilities. This is one of many reasons that the lawsuits filed by Collins & Collins, P.C. now invariably include counts for civil conspiracy between NMCD and its private medical provider which thus far have been allowed to move forward.
Grievance forms available to inmates are in triplicate, carbon-copy format; white, yellow, pink. The inmate is to receive a pink copy at time of filing. Seldom do we encounter an inmate who has received his or her copy of a grievance filed. Whether deliberate or haphazard, it surely makes it very difficult later on to assemble a time-line as to what has taken place in an inmate’s personal odyssey in attempts to receive proper medical care.
Taking a cynical view, one might conclude that this is deliberate. In fact, that is what Collins & Collins, P.C. believes is occurring and has stated as much in numerous lawsuits against the medical provider and NMCD. Short of deliberate callous, and wanton indifference to the health of inmates, it is at best plain incompetence and gross medical negligence.
Short Deadlines on Inmate Medical Malpractice Claims
The Prison Litigation Reform Act (PLRA) can be brutal in its application, which is of course the point. Inmates must fully exhaust all administrative remedies in compliance with the particular prison’s grievance process. NMCD’s process allows only 5 days to file the informal grievance. This deadline is typically already passed when Collins & Collins, P.C. is first contacted.
In short, if you are reading this, it is important to tell your loved one in prison to immediately file a grievance when faced with medical neglect. More information may be found here on the PLRA and NMCD grievance process.
Given the obstruction of the grievance process by NMCD, inmates and their loved ones can take some comfort in the fact that the strict PLRA requirements may be relaxed in case of obstruction. Whatever the case it is important to:
- File the grievance immediately,
- Contact an attorney in cases of medical negligence leading to serious harm to the inmate.
Collins & Collins, P.C. may be reached at (505) 242-5958 or online using our contact us form.