In fact, out of 59 cases filed against the company in US District Court in New Mexico over the last 10 years, an online court database shows CMS settled only two.
“CMS is notoriously a bad corporate citizen, in the words of one of the judges I had a case in front of,” Santa Fe lawyer and criminal justice expert Mark Donatelli says. “They just hide behind the excessive costs of litigation in preventing claimants from receiving reasonable compensation.”
CMS’ track record has lead to a dirth of lawyers willing to represent inmates in health care cases, and a high level of inmates trying to represent themselves.
Fifty-eight percent of the lawsuits filed against CMS in New Mexico in the past 10 years were filed pro se—ie, without legal representation.
The high percentage of pro se cases against prison medical care providers nationwide is part of why the number of cases and their outcomes is a poor indicator of a provider’s performance, according to Human Rights Defense Center Executive Director Paul Wright.
CMS spokesman Ken Fields offers a different interpretation. In a statement provided to SFR, he argues that the lack of settlements against CMS in this state suggests it is providing quality care.
“The vast majority of [civil cases filed by inmates] involving our company and our healthcare professionals have either been dismissed by the courts or the courts have found in favor of CMS…In fact, the record of our healthcare professionals and CMS in such cases is very strong.”
CMS’ record has sent a strong message, and is why lawyers are generally less than ecstatic when they receive hand-addressed envelopes from the state pen. In order to sue the state for violating an inmate’s constitutional rights via its contract with CMS, plaintiffs have to show CMS acted with “deliberate indifference” to an inmate’s known medical needs—a much higher standard than medical malpractice. And going after CMS—which can argue that inmates’ damages are minimal since they can’t factor in lost wages—isn’t expected to be fruitful. That leaves the option of a jury trial, but jurors tend to take a dim view of inmate complaints, Albuquerque lawyer Peter Cubra tells SFR.
“I think juries are unsympathetic to that population, and so lawyers recognize the total return for a prisoner who suffers medical malpractice is going to be lower than if it’s a mother who’s a soccer mom who suffers the same harm,” Cubra says.
The state does have a Post-Conviction Habeas Corpus Division within its Public Defender Department, through which inmates can appeal their incarcerations. Occasionally, the division takes up medical cases, arguing the treatment, or lack thereof, is a form of cruel and unusual punishment that violates the inmate’s constitutional rights.
Usually, though, “we assiduously avoid these medical things,” John Walker, the Habeas Division’s supervising attorney, says. “The chances of success under the law are so miniscule and the investment of resources is so high. We’ve had some cases come in—one out of the county jail in Doña Ana, a guy was complaining about all sorts of medical problems and said he wanted $1 million. I asked to be unappointed.”
That’s why hand-scrawled civil complaints abound, written by inmates such as Gregory Adolph—who allegedly lost vision in his left eye after weeks without treatment for an infected stab wound. Such complaints are shot down unceremoniously by CMS’ law firm or dismissed by the court for failure to pay filing fees or for procedural mistakes. One plaintiff requested the court dismiss his case last year, explaining in large block letters that he didn’t have sufficient access to the legal materials necessary to respond to the defendant’s pleadings.
“I can’t recall any time since the turn of the millennium that a pro se prisoner succeeded in any kind of civil rights case or medical malpractice case,” Cubra says.
One of the largest obstacles pro se litigants face is the inability to get a second opinion of their treatments, let alone the expert medical opinion that is central to a malpractice case, Donatelli says. Even if an inmate determines which evidence to demand from the defendant and what is admissible in court, there’s the question of which sensitive documents the state would be willing to provide to someone still in its custody.
“I think it’s just a little dicey when a current inmate is asking for prison records,” Albuquerque lawyer Elizabeth Simpson says. “The prison and the jails are pretty reluctant to be giving out policies and procedures and internal memoranda and lists of other inmates and things like that.”
Wright believes that, due to the difficulty inmates have making their cases, private prison health care contractors can follow a business model that maximizes profits by denying expensive treatment.
In the case of CMS, Cubra agrees: “I believe Correctional Medical Services systematically delivers poor care in order to maximize profits…my own experience is that Correctional Medical Services has denied many people adequate care, sometimes with lethal result,” he says.
American Civil Liberties Union National Prison Project Director David Fathi says prison medical care privatization creates “problematic incentives,” though private care isn’t necessarily worse than government-provided care.
“Privatization [of inmate medical care] poses risks of inadequate care because of the profit motive to cut costs, and the uniquely disempowered and politically unpopular population it serves,” Fathi says.
CMS spokesman Ken Fields declines to discuss specific lawsuits, but writes SFR that CMS “work[s] to continually enhance the level of service we provide to inmate patients and corrections agencies…[and examines] the overall performance of our healthcare professionals, including situations where inmate patients may have expressed questions about their care.”
One of CMS’ health care professionals, physician William Shannon, is named in 21 separate lawsuits filed against CMS in US District Court in New Mexico, and has six currently pending. Although Shannon is referred to in some pleadings as CMS’ medical director, Fields refused to provide Shannon’s title, calling it confidential personnel information. Attempts to reach Shannon himself were unsuccessful.
In one pending case filed last December, inmate Dennis Reese argues that Shannon failed to X-ray his broken left knee a month after he notified staff of the suspected injury, and instead prescribed only over-the-counter pain medication. After the swelling increased, a nurse ordered an X-ray and found Reese’s kneecap was broken, with “widening of the fragments.” He was sent to University of New Mexico Hospital for surgery; CMS allegedly failed to provide him with a prescribed splint for almost a month afterward and denied most of his prescribed physical therapy visits. After a physical therapist prescribed exercise on a stationary bike, Shannon allegedly overruled the order.
In another pending case, the family of Daniel Garcia, who allegedly died as a result of being denied prescribed medication, argues CMS tried to cover it up by claiming Garcia overdosed on heroin. In his answer, Shannon writes that he only treated Garcia one time and his subordinate was responsible for decisions made on Garcia’s case.
“When it comes to jail and prison medical care, the courts are deferential to any jail doctor saying that it’s an appropriate course of treatment or care,” Donatelli says. “That’s not to say that the prisoners don’t have a legitimate claim that they received substandard medical care.”