Trial Magazine

Mark Cannon was a healthy young man when he entered the Albany, N.Y., county jail in 2014. Within hours, that all changed: Cannon suffered a stroke in his brain stem. The medical care provider at the jail was a private company with which the county jail had a contract. Although nurses observed Cannon—who was in severe distress—having difficulty walking and keeping his balance, suffering from seizures, and foaming at the mouth, it was approximately 12 hours before they finally brought him to a hospital. By then, it was too late to save his life. Cannon died three days later, on what would have been his 24th birthday.

Early medical intervention would have saved Cannon, but no doctors, physician assistants, or nurse practitioners were on duty at the jail—and none were contacted. Cannon’s story is not unusual: There is a common pattern of misconduct at facilities that rely on private health care providers, and jail detainees and prison inmates ­nationwide suffer preventable deaths or injuries as a result.

These medical companies use flat-rate plans, contracting with a state government or municipality to provide all medical services at a particular jail or prison for a set fee, regardless of detainees’ medical needs.¹ Other than catastrophic injuries requiring extended hospitalization, these companies generally cover all costs associated with inmate health care, including those for medical staff, outside medical providers, testing, and prescriptions.

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These contracts provide a strong economic incentive for these companies to deny or delay care.

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These contracts provide a strong economic incentive for these companies to deny or delay care.² This often leads to the least serious potential diagnosis being considered to the exclusion of other, possibly serious medical conditions. For instance, Cannon’s neurological symptoms were dismissed by a nurse as “heat exhaustion,” with a “prescription” for a sports drink.

Doctors oftentimes are not present to make medical diagnoses. Health care providers often ignore or delay meeting detainees’ pharmacological needs and provide improper substitutions for the necessary drugs. These substitutions may use a different formulation the detainee is not used to or may have contraindications.

These patients have no other options for their medical care, and private correctional health care providers at public jails and prisons must be held accountable when care is substandard.³

First Steps

There are a range of remedies available to address malfeasance by a private correctional medical provider, but there are nuances to keep in mind. For example, detainees housed in state and local jails likely will have both state law negligence or medical malpractice claims in addition to 42 U.S.C. §1983 claims.

Because private correctional health care providers are fulfilling a traditional government function, they and their employees act under the color of state law and are responsible for constitutional violations.⁴ Section 1983 claims for violation of constitutional rights under color of state law generally have a higher standard of proof—“deliberate indifference to serious medical needs”—that often is equated with recklessness or gross negligence,⁵ but that is not limited by state law notice-of-claim requirements or damages caps.⁶

State law claims, in contrast, have a lower standard of proof and the increased likelihood of viable vicarious liability claims, but plaintiffs often must comply with presuit notice and certification requirements, as well as deal with possible mediation delays.⁷ ­Furthermore, state law claims against state and local governments can be barred under sovereign immunity or—depending on the state—require litigation in a special forum and be subject to damages caps.⁸

Generally, you should file in federal court while asserting all applicable state law claims under the federal court’s supplemental jurisdiction.⁹ Federal claims offer a wider breadth of discovery, especially when taking into account state law privileges. This is particularly true when it comes to accessing law enforcement personnel files and other investigative records.¹⁰

Note, however, that presuit requirements under state law still must be satisfied even if your case is filed in federal court.¹¹ The statute of limitations for §1983 claims also varies by state and is determined by the general negligence statute of limitations in the state where the case originates.¹²

The defense of qualified immunity, which can be particularly ­cumbersome in §1983 litigation, does not apply to private correctional health care providers.¹³ Consequently, a plaintiff who would ordinarily face claims from the defendants that their actions were “reasonable” or not in violation of clearly established law and the prospect of an interlocutory appeal will not face such hurdles against a private correctional health care provider.¹⁴

It is important to preserve state law claims, especially if you practice in a state that recognizes the corporate negligence doctrine.¹⁵

The Prison Litigation Reform Act

In bringing claims under §1983 either in federal court or in state court under the statute’s concurrent jurisdiction, you must be aware of the Prison Litigation Reform Act (PLRA), which requires all detainees to first exhaust their administrative remedies.¹⁶ While your client may be exempt from PLRA requirements under the limited circumstances described below,¹⁷ ensure that he or she takes the steps necessary to exhaust administrative remedies, including filing grievances and pursuing all appropriate appeals.

If your client is due to be released before the statute of limitations expires, you can wait to file your case until he or she is released, when the PLRA will not apply.¹⁸ The PLRA also does not apply in fatality cases.¹⁹

Pleading Monell Claims

Of particular importance in bringing suit against a private correctional health care provider is the need to preserve municipal policy and practice claims, commonly referred to as Monell claims. Under Monell v. Department of Social Services of the City of New York, a local government is responsible for its illegal policies and practices but is not liable for the actions of individual employees absent a failure to supervise or appropriately train them.²⁰ Monell claims can be applied to private corporations as well.²¹

Because there is no vicarious liability for employers under federal civil rights law, pleading Monell claims is necessary to include as a defendant the health care company that hired the negligent or deliberately indifferent health care providers. Monell claims allow you to present evidence of past failures by the company, as well as its flat-rate business model and how that business model may lead to bad outcomes.

For example, if a detainee’s severe symptoms were ignored or minimized and there was a lengthy delay in care, the jury should consider the company’s policy of delaying or denying care for profitability reasons. When framing your case, this is a powerful argument. And unlike a municipality, private companies may be liable for punitive damages in civil rights claims.22

Holding Local Governments Accountable

It also is important to pursue a claim against the government entity responsible for hiring the corporation. As an initial matter, the only governments that can be held responsible under federal law for hiring negligent private correctional medical providers are local governments—counties and cities—because state governments are immune from such claims under the Eleventh Amendment.²³

Local governments can be held accountable for the actions of private medical contractors on two bases. First, they cannot delegate their constitutional obligation to provide health care at local jails and are responsible if a private contractor violates a detainee’s rights.²⁴ Second, it can be argued that municipalities make policy statements by hiring private correctional medical providers under a flat-rate plan, particularly when the company has a long history of misconduct.²⁵ The municipality is, in turn, directly responsible for its own policies and practices.²⁶

Local governments will fight these claims and maintain that they are not responsible for the actions of private medical providers. However, when the municipal government cedes ­policymaking authority to the private medical company, it is responsible for that company’s policies—and for any harm that foreseeably flows from them.²⁷

Getting the Information You Need

When litigating medical cases, discovery in state courts can become bogged down or stymied by state law privileges, including peer review or quality improvement review privileges, deliberative process privilege claims by state agencies, privacy protections for personnel files, and privacy concerns regarding medical records.

Those issues, however, usually will not inhibit discovery in a civil rights case when the emphasis is on constitutional claims with only limited consideration of state law privileges.²⁸ For example, peer review or quality improvement privileges generally will not prohibit discovery.²⁹ Employee efforts to protect personnel files, which are generally shielded from disclosure under state law, will be unsuccessful.³⁰ And the medical records of other detainees who have been harmed by the same private health care company can—with a showing of necessity and a protective order—be produced despite HIPAA protections.³¹

Medical reviews. To prevail on policy and practice claims against a private correctional medical provider, you will need to cast a wide net for past misconduct—and not just at the specific facility at issue. Seeking company contracts and the various reporting documents required by those contracts should be a priority in discovery.

In particular, focus discovery requests on past medical reviews of deaths at facilities where the company provides care or on the absence of appropriate mortality reviews conducted by third parties. Most private medical companies agree in their contracts to conduct an extensive review and take corrective action when an inmate dies in their care—but they often don’t take any action. Demonstrating the companies’ failure to perform appropriate medical reviews or take corrective action can have a powerful impact at trial, especially when a prior death in the medical company’s care is similar to your case.

Depositions of corporate officials. Once you have assessed these records, depose senior corporate officials, such as the corporation’s medical director or a Rule 30(b)(6) deponent, about what actions—if any—they took in response to prior fatalities. You likely will find that they took no meaningful action, such as hiring additional providers or ensuring prompt transport of detainees to a hospital by medical staff. These discovery strategies will provide compelling support for a policy and practice­ claim, especially if you can obtain documents reflecting the relationship between costs and profitability.³²

Government reports. You may be able to rely on the actions of government regulators or local government efforts to monitor the company’s conduct. For instance, many medical company contracts require reports on various issues—such as utilization, grievances, and quality improvement—that must be provided to the local county government. These contracts also sometimes require that the municipality designate a contract monitor to oversee the com­pany’s performance and compliance.

Obtaining these records can demonstrate that the company is not fulfilling its contractual obligations, and they also may provide evidence of the municipality and the company corresponding about deficiencies in care. Reports that are critical of the company’s actions are some of the most compelling proof you can present to a jury.33 If state regulators or law enforcement agencies investigate inmate deaths, you should also seek those records early in discovery.

Records from professional medical review boards or other regulators are similarly discoverable under federal law. These records may help you determine what facts to plead, which witnesses to depose, past examples of negligent conduct, and further documents to pursue in discovery.

Public Accountability

It is a trial lawyer’s duty to not only fight in the courtroom but also to advocate for systemic change. Revealing egregious misconduct to the public has swayed local governments to fire private correctional medical providers and forced state regulators to act.³⁴

It is important to fight comprehensive protective orders and confidential settlements in these actions, since these companies receive public money and are fulfilling a traditional government function. Many federal courts are reluctant to allow confidential settlements in these instances, and they also may be reluctant to allow broad protective orders for the same reason.³⁵

Plaintiff attorneys reveal and help fix irresponsible corporate behavior, and a private correctional health care provider should be held to the same standards as any other company.

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Elmer Robert Keach III is the founder of and Maria K. Dyson is an associate at the Law Offices of Elmer Robert Keach III in Albany, N.Y. They can be reached at bobkeach@keachlawfirm.com and mariadyson@keachlawfirm.com.

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Notes

1. Dan Weiss, Casenote and Comment: Privatization and its Discontents: The Troubling Record of Privatized Prison Health Care, 86 U. Colo. L. Rev. 725, 749 (2015) (providing a thorough discussion of the history of corrections medical privatization and capitation contracts). 
2. See Shields v. Ill. Dep’t of Corrections, 746 F.3d 782, 790 (7th Cir. 2014), cert. denied, 135 S. Ct. 1024 (2015) (“It is generally cheaper to provide substandard care than it is to provide adequate care. Private prisons and prison medical providers are subject to market pressures. Their employees have financial incentives to save money at the expense of inmates’ well-being and constitutional rights.”); D’Agostino v. Montgomery Cnty., 2012 WL 425071, at *4 (E.D. Pa. Feb. 9, 2012).
3. This article addresses claims that can be brought against state and local governments that hire private correctional medical providers. Claims regarding federal prisoners are different, as the Federal Tort Claims Act does not apply to private contractors, nor will a federal civil rights action against private prison employees be actionable under Bivens v. Six Unknown Fed. Narcotic Agents, 403 U.S. 388 (1971). See Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001). As detailed later in this article, it is always essential to preserve state law claims.
4. West v. Atkins, 108 S. Ct. 2250, 2258 (1988).
5. Farmer v. Brennan, 114 S. Ct. 1970, 1980 (1994); Doe v. New York City Dep’t of Soc. Servs., 649 F.2d 134, 143 (2d Cir. 1981).
6. Felder v. Casey, 108 S. Ct. 2302, 2304–05 (1988); Jones v. Reno Hilton Resort Corp., 889 F. Supp. 408, 410, n.1 (D. Nev. 1995).
7. See, e.g., N.Y. C.P.L.R. §3012-a (certificate of merit in medical malpractice actions), Me. Rev. Stat. tit. 24 §§2851 et seq. (detailing submission of presuit notice of claim in professional negligence cases and proceedings before prelitigation mediation panel); Va. Code Ann. §8.01-20.1 (certification of expert witness opinion at time of service). 
8. See N.Y. Court of Claims Act §§8 et seq. (requiring all lawsuits against New York to be filed in the New York Court of Claims, together with restrictive notice requirements); 42 Pa. Cons. Stat. §§8541, 8542 (sovereign immunity for local governments with limited exceptions, not including negligence of county jail employees); W. Va. Code §29-12A-7(b) (noneconomic loss limited to $500,000). 
9. 28 U.S.C. § 1367.
10. See, King v. Conde, 121 F.R.D. 180, 195–96 (E.D.N.Y. 1988) (seminal case directing production of police officer personnel files in federal civil rights case despite countervailing privacy protections under state law); Zikianda v. Cnty. of Albany, 2013 WL 936446, *3–4 (directing production of inmate mortality review regardless of self-critical analysis privilege). 
11. Mroz v. City of Tonawanda, 999 F. Supp. 436, 450 (W.D.N.Y. 1998) (notice to municipality); Robinson v. Mon, 2014 WL 4161965, at *8 (S.D. W. Va. Aug. 19, 2014) (notice to physician under state medical malpractice law). 
12. Wilson v. Garcia, 471 U.S. 261, 276–80 (1985).
13. Richardson v. McNight, 117 S. Ct. 2100, 2107–08 (1997). 
14. For a general discussion of qualified immunity, see Pearson v. Callahan, 555 U.S. 223 (2009). 
15. Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. Sup. Ct. 1991).
16. 42 U.S.C. §§1997e et seq. (2013).
17. Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (focusing on availability of grievance procedure). 
18. Stevens v. Goord, 2003 WL 21396665, at *4 (S.D.N.Y. June 16, 2003).
19. Torres Rios v. Pereira Catillo, 545 F. Supp. 2d 204, 205–06 (D.P.R. 2007). There are other exemptions as well, primarily associated with deficiencies in a jail or prison’s grievance process. See Nelson v. Plumley, 2015 WL 4326762, at *8–9 (N.D.N.Y. July 14, 2015). 
20. 436 U.S. 658 (1978).
21. Glisson v. Indiana Dep’t of Corrections, 849 F.3d 372, 378–79 (7th Cir. 2017).
22. Revilla v. Glanz, 8 F. Supp. 3d 1336, 1342–43 (N.D. Okla. 2014).
23. Edelmen v. Jordan, 415 U.S. 651, 662–63 (1974). 
24. Simmons v. Corizon Health, Inc., 122 F. Supp. 3d 255, 265–67 (M.D.N.C. 2015); Black v. Allegheny Cnty., 2014 WL 5493811, at *10 (W.D. Pa. Oct. 30, 2014). 
25. Weiss, supra note 1, at 767. 
26. See generally Amnesty America v. Town of West Hartford, 125 F.3d 843 (2d Cir. 1997). In the jail context, see Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 705 (11th Cir. 1985). 
27. King v. Cramer, 680 F.3d 1013, 1020 (7th Cir. 2012). 
28. King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988).
29. Jenkins v. DeKalb Cnty., 242 F.R.D. 652, 661 (N.D. Ga. 2007).
30. Smith v. Goord, 222 F.R.D. 238, 242 (N.D.N.Y. 2004).
31. Nat’l Abortion Fed. v. Ashcroft, 2004 WL 555701, at *7 (S.D.N.Y. Mar. 19, 2004).
32. For instance, one private medical company maintains “site budgets” at each of its constituent facilities. These site budgets reflect annual profits made from the company’s contracts at each facility. The profits reflected are likely much higher than what is represented to the municipality in the company’s contract proposal. Given the capitation agreement, these profits almost always flow from denying medical care to detainees or failing to hire appropriate medical staff.
33. Cannon v. Correctional Med. Care, 2017 WL 2790531, at *4 (N.D.N.Y. June 27, 2017).
34. N.Y. State Office of the Attorney General, A.G. Scheiderman Sues Nassau County Prison Health Service Provider, Armor Health, Alleging Inadequate Care of Inmates (July 12, 2016), https://ag.ny.gov/press-release/ag-schneiderman-sues-nassau-county-prison-health-service-provider-armor-health; Brendan J. Lyons, Medical Provider Faulted in Schenectady Jail Inmate’s Death (Feb. 20, 2018), www.timesunion.com/news/article/Schenectady-County-seeking-new-medical-provider-12625156.php.
35. Chase v. Correctional Med. Care, 2015 WL 9308269, at *2 (N.D.N.Y. Dec. 22, 2015); Flaherty v. Seroussi, 209 F.R.D. 295, 299–300 (N.D.N.Y. 2001).