Question: Do medical providers working in New Mexico Corrections Department (NMCD) correctional facilities have possible legal claims for lack of preparation and response to COVID-19?
Answer: Its possible but they would be very difficult with a number of challenges.
Summary: Medical personnel, typically working under contract with a third-party company, are faced with a few related challenges: 1) the New Mexico Worker’s Compensation Act, 2) their employer is the medical provider that should have been and should still be responding to COVID-19, 3) vast number of potential plaintiffs.
NMCD’s Failed Response to COVID-19
As I have written in prior posts, NMCD failed and continues to fail to take appropriate measures to protect inmates and prison personnel from COVID-19, including the medical providers working in the prisons for the medical contractor Wexford. However, Wexford has contractual duties to appropriately plan for and respond to infectious disease outbreaks in NMCD facilities. COVID-19 is most definitely an infectious disease which would fall under those contractual duties. The many failures of both NMCD and Wexford were outlined in the prior posts and will not be restated here:
The failures to protect inmates and NMCD personnel discussed in these prior articles applies equally to medical personnel so they will not be recounted here.
Challenges to COVID-19 Lawsuits for Medical Contractors
There are multiple challenges facing Wexford medical personnel who might seek to bring lawsuits for injuries and damages for lack of preparedness for COVID-19 in the prisons.
New Mexico Worker’s Compensation Act
First and foremost, the medical personnel will be unable to sue Wexford who arguably has primary responsibility over infectious disease outbreaks in the prisons. This is due to the New Mexico Worker’s Compensation Act which drastically limits the rights of New Mexico employees to sue their employers, no matter how egregious and grossly negligent the employer is. In fact, gross negligence is not enough. Recklessness is required and New Mexico courts have determined that this basically requires the employer to send an employee to certain great physical harm or death under Delgado v. Phelps Dodge which has become known as the Delgado standard. It is very unlikely that a court would find the failed response to COVID-19 to meet the Delgado standard.
Liability of NMCD Could be Limited by Contract
The contract between Wexford and NMCD, PROFESSIONAL SERVICES CONTRACT # 20-770-1200-0043 executed by Wexford and NMCD in October 2019, places the responsibility for infectious disease control on Wexford as outlined in the prior post noted above. Indeed, common sense would suggest that the control of infectious disease falls within medical responsibilities. Although NMCD has been grossly negligent in its COVID-19 preparation and response, it will point the finger at Wexford. The claims are possible, but they would be exceedingly difficult and expensive to pursue.
Mountain of COVID-19 Claims Coming Against NMCD and Wexford
There will likely be all kinds of different claims against both NMCD and Wexford related to the grossly negligent preparation and response to COVID-19. This doesn’t necessarily preclude individual cases. However, because the legal claims and related lawsuits will be so difficult and expensive to pursue, they will probably need to be brought as a class action lawsuit. The challenge here is to find attorneys willing to take on such a huge task with what very well may be a losing proposition in the end.
Possibility of Legislation Barring COVID-19 Related Lawsuits
COVID-19 is a pandemic. It is really beyond the control of society, scientists and the medical community. The only control is over the rate of increase of the outbreak, flattening the curve as they say. Flattening the curve is not so much a function of preventing the spread but slowing the spread to avoid overwhelming the health care system. Governor Lujan Grisham took relatively early action in responding to COVID-19. Unfortunately, NMCD has drug its feet every step of the way as they generally do with anything related to inmate health and well-being. What little action has been taken by NMCD and Wexford, notwithstanding a medical miracle, is too little and far too late. In this case, NMCD and Wexford both have endangered far more than the inmates, they have endangered their own employees and staff. The only recourse for medical personnel may be to seek reform to avoid any future situations as the current. Interestingly, this is a rare occasion when the interests of everyone in the prisons are obviously aligned including inmates, guards, staff and medical personnel. Personally, I have always felt since beginning work for inmates, the the interests have always been somewhat aligned. They all live in the same house….
Protect Yourself and Seek Legal Representation
As can be seen from even a cursory view of the news, medical personnel everywhere are having to figure out how to protect themselves. The challenges are greatly amplified in prisons due to the conditions of prisons which make it impossible to maintain social distancing. The utter failure of NMCD to provide inmates with proper cleaning supplies makes the other precautions impossible to follow by inmates. Since the medical personnel are in the same petri dish experiment with the prisoners, they too will almost certainly be exposed and suffer the consequences.
The best recourse for now is to seek assistance in getting the protective gear, personal protective equipment and other supplies to properly protect themselves. This may require the involvement of an attorney. And it might be best accomplished as a group so that no one individual is bearing teh legal costs alone.
Although Collins & Collins, P.C. greatly sympathizes with the medical personnel and NMCD staff, our firm would not be able to take on this challenge due to the conflicts of interest associated with the many medical malpractice lawsuits Collins & Collins, P.C. has filed against NMCD and its medical providers. We would hope that there would be lawyers and firms that would take on the challenge of protecting prison health workers as we have done for inmates. Unfortunately, we do not know any at this time so the medical personnel will need to seek out legal counsel themselves. And with all things related to prisons, the first discussion will likely be possible retaliation for raising their voices. In fact, the retaliation itself, may be the only viable legal claim the medical workers have and those too are extremely challenging and uncertain.