David’s Heart Part V. – By Michael Holmberg


I’d like to share my thoughts and beliefs concerning the current reality of prison health care based on research and experience, explaining: the parameters of a prisoner’s right to receive adequate medical care a brief history of past and current failures to provide prisoners adequate medical care a discussion on how the Washington Department of Corrections (WDOC) has transitioned from providing the community standard of care to the medical necessity standard of care and ways to ensure your friend or loved one receives adequate medical care.

Adequate Medical Care – A Right?

Persons are sent to prison as punishment, not for punishment. [1]. That is to say, the WDOC cannot deprive a prisoner: a person, of his or her fundamental, or constitutional rights solely based on their status as a prisoner. 

All prisoners have a fundamental right, based on a rule of law, which says that the DOC shall abide by the constitution, statutes, case law, rules and policies affecting the agency’s exercise of discretion. [2]

In this context, a prisoner’s fundamental right to receive adequate medical care is founded on the Eighth Amendment to the U.S. Constitution, which prohibits the infliction of cruel and unusual punishment. Our courts have framed this right in the following terms:

“A prisoner in need of medical treatment . . . cannot, at will, go to a public or private facility to secure the treatment, and cannot, at will, call a practitioner to treat him/her in prison. Having custody of the prisoner’s body, and control of the prisoner’s access to medical treatment, the prison authorities have a duty to provide needed medical attention.

This duty is recognized in state and federal statutes, and administrative prison regulations. In addition to these statutory and administrative duties, there is a constitutional duty to provide needed medical attention to a prisoner, because the intentional denial to a prisoner of needed medical treatment, is cruel and unusual punishment, and violates the Eighth Amendment to the Constitution of the United States.

If the above is accepted, then it is an easy mental step to the proposition that reckless disregard, callous inattention, and gross negligence, which results in the denial of needed medical treatment, is equivalent to intentional denial of medical treatment, and therefore violates the rights guaranteed by the Eighth Amendment.” [3]

In developing the Eighth Amendment standard our courts have adopted certain terminology in order to address the delivery of medical care in prison, such as “serious medical need” and “deliberate indifference.” 

A “serious medical need” has been defined as the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or trearment the presence of a medical condition that significantly effects an individual’s daily activities or the existence of chronic or substantial pain. [4].

“Deliberate indifference” has been defined as the unnecessary and wanton infliction of pain. Deliberate indifference can be demonstrated by showing that prison officials or their subordinates had actual knowledge of a prisoner’s serious medical need or intractable pain and failed to act. [5] Our courts have determined that the following issues may constitute deliberate indifference:

* Delay or denial in providing treatment. [6]

* Delay or Denial of access to qualified medical personnel. [7]

* Delay or denial of access to medical care due to cost, budget considerations, or time left to serve on a sentence. [8]

Despite these evolving standards, many prisoners have found it difficult to receive adequate medical care while in WDOC custody, many of whom will needlessly suffer intractable pain, injury and in the most serious cases wrongful death.

While the foregoing establishes the parameters of a prisoner’s right to receive medical care under federal law, Washington state law requires that prisoners receive medical care consistent with both federal and state constitutional provisions [9], while requiring WDOC to develope and implement a plan for the delivery of health care services in conformity with federal law. [10]

In response to the foregoing statutory requirements the WDOC, in 1997, created WAC 137-91-010, directing that medically necessary care must:

* Be consistent with applicable department policies and procedures 

* Be ordered by an authorized department health care provider 

* Be required to prevent significant deterioration in the offender’s health or permanent functional impairment if not rendered during the period of incarceration 

* Not to be considered experimental or be lacking in medically recognized professional documentation of efficacy:

* Not be administered solely for the convenince of the offender or health care provider. [11]

In accordance with WAC 137-91-010 the DOC created the Offender Health Plan (OHP), which, for the most part, embodies the priorities set forth in WAC 137-91-010. [12]

Based on the above, it would appear that WDOC prisoners have a fundamental right to receive adequate medical care in response to their serious medical needs. Yet, the evidence offered under “Past and Current Failures” may suggest otherwise. 

Go to Part V.1

Michael Holmberg
DOC #741372

Categories: health, Michael Holmberg

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