Past and Current Failures
10. In November 2015 several prominent Seattle Civil Attorneys filed a Civil Complaint in the U.S. District Court Western District of Washington against the Chief Medical Officer for the WDOC, G. Steven Hammond and others. The Complaint addressed the systemic denial of prisoner’s serious medical needs through the use of a Care Review Committee. (CRC) 
The CRC consists of voting members, the majority of which are non-physicians/non-experts, who have authority to deny or approve requests for medical treatment submitted to CRC by facility heath care providers. Many of the cases submitted to the CRC were based on findings and recommendations of medical specialists or experts – recommendations based on the community standard of care.
Some of the treatment denied by the CRC, as alleged in the complaint, involved the unnecessary infliction of pain due to stage three kidney failure, carpal tunnel syndrome, inguinal and umbilical hernias – all of which are by definition serious medical needs.
Some of the claims regarding the denial of serious medical needs by the CRC involved the use of:
* cost containment as a factor in determining whether to deny or approve requested medical trearment
* unduly restictive protocols and standards designed to deny, rather than approve requested medical care
* routine denial of requested diagnostic testing
* routine denial of treatment recommendations of outside medical specialists or experts without clinical justification.
Unfortunately, the last update on this case resulted in the Court denying certification for a Class Action.
Remember, at the outset, I said the above referenced cases were part of a “very short list” of cases relevant to this discussion. And, based on my research and personal experience, I believe the foregoing are not the result of random or isolated events, but instead represent a baseline of unconstitutional conduct hidden behind a wall or fence designed to punish prisoners through a system of denial by delay, resulting in the unnecessary infliction of pain.
What do you think? Did the WDOC provide the above mentioned prisoners medical care in conformity with the community standard of care?
Please consider the next section: A Change in Strategy.
A Change in Strategy
As mentioned at the outset of this discussion, the WDOC created WAC 137-91-010 in order to comply with state law to develope the Offender Health Plan (OHP) for providing prisoners “necessary medical care.” But, in 2010 Dr. Hammond made drastic changes to the OHP. These changes were reviewed by an Assistant Attorney General (AAG) from the Washington State Attorney General’s Office. The AAG advised – the officials involved in amending the OHP – that the amendments would subject the WDOC to liability under the existing version of WAC 137-91-010.
On December 21, 2010 Secretary Eldon Vail, in response to advice from the AAG and input from Dr. Hammond, submitted a letter to the Code Reviser requesting amendment to WAC 137-91-010, redacting the following phrase:
“Be required to prevent significant deterioration in the offender’s health or permanent functional impairment if not rendered during the period of incarceration.”
The effective date of this amendment was January 21, 2011.
I believe this amendment – based on the above evidence – has given WDOC and its health care providers the ability to deviate from providing prisoners the “community standard of care” as defined by the following:
“[S]tandard of care” is defined as “that degree of care expected of the average, competent practioner in the class to which he belongs, acting in the same or similar circumstances.”.  While “adequate medical care” has been defined as “treatment by qualified medical personnel who provide services that are of a quality acceptable when measured by prudent professional standards in the community.” 
By denying prisoners the “community standard of care” through the CRC, the WDOC and Dr. Hammond were able to achieve a $20,000,000 reduction in health care costs by enforcing the “medical necessity standard.” An additional result of enforcing the “medical necessity standard” has been an increase in needless suffering and death of prisoners unable to seek medical care on their own.
Did you know the CRC may consider a prisoner’s release date and costs  as factors in determining whether to deny or approve health care? Factors our courts have found unconstitutional.
Did you know the vote of each CRC member is anonymous, allowing them to evade any form of accountability?
Did you know that one of the most effective weapons utilized by CRC is the routine denial of requested diagnostic testing. You see, without the test results and the subsequent recommendations and findings confirming an injury or illness, no treatment is necessary.
Did you know that a CRC denial can only be appealed through the Offender Grievance Program (OGP), a process which can extend a denial of medical treatment for an additional 90 to 180 days. Why such a delay? The OGP has three levels of review, Levels I and II are decided at the facility level, while Level III is decided at the Headquarters level. And therein lies the problem, a CRC denial can only be reversed at Level-3, because the facility does not have the jurisdiction or authority to address a CRC decision. So, why not allow a prisoner to utilize the OGP Level-3 appeal to address a CRC denial? Or, why not allow a prisoner to appeal a CRC denial directly to the CMO? I think the answer may be found in understanding the concept of denial by delay.
After considering the above, some folks may think “what can I possibly do to help my loved one or friend in prison receive adequate medical care?” See “What Can I Do?”
Go to Part V.4
Categories: Michael Holmberg