We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

YOU’VE GOT NOTHING COMING

Lousy healthcare ranks just behind lousy food as an inmate complaint, but when the effects of substandard medical attention are considered, it is perhaps the most significant beef inmates have. We have worked with inmates who were blinded, paralyzed and stricken with terminal cancer because of incompetent or indifferent medical attention in prison.

The Federal Tort Claims Act permits inmates to sue for medical malpractice, with the law applied being the law in which the prison is located. Of course, a federal inmate has no access to state law, no right to an appointed attorney, and no right to the assistance of medical experts. The prison healthcare people, on the other hand, are represented by the civil desk of the United States Attorney’s Office, a “law firm” staffed by some pretty skilled attorneys backed by a client with an unlimited budget and a disinclination to settle. It’s little wonder that even the most patent case of medical malpractice in the federal prison system rarely goes the inmates’ way.

That’s why we were so surprised and pleased this week to see the 7th Circuit come down resoundingly on the side of an Indiana state prison inmate who had been beaten down by the system. First, prison healthcare let an ingrown toenail result in a lifetime of migraine headaches and soft foods (itself an amazing and appalling medical result). Then, the pro se inmate suffered nine years of being buffeted by the legal system.

Tom James was in an Indiana prison when he began suffering from an ingrown toenail. He sought medical help for it, but the doctor dithered as prison medical staff are wont to do. Tom got some drugs, and then some more drugs, and finally – after a month – the doc removed the nail.

The biggest problem with prison medical services, in our experience, is not that the care is substandard. It often is, but that’s not the principal problem. The real difficulty is that the medical staff stalls, equivocates, denies and procrastinates until problems that could have been solved quickly and cheaply turn into existential crises.

That’s what happened here. By the time the nail was pulled, Tom was limping badly because of the pain and taking opioids for pain. The combination of a narcotic stupor and a bad limp resulted in Tom falling on the steps of the housing unit and breaking his jaw. Three times he sought emergency treatment of the jaw, to no avail. About a month later his jaw cracked while he was eating. X-rays revealed a fractured left jaw, but because so much time had passed, surgery could not correct the problem. Tom was put on a diet of soft food for the rest of his life.

Tom sued the prison and a number of doctors for malpractice and 8th Amendment violations, claiming that they had been deliberately indifferent to his infected toenail and broken jaw. Years later, he suffers pain and temporomandibular joint dysfunction from the jaw injury.

The district judge eventually dismissed all the defendants except two doctors who had treated Tom (and we use the term “treated” loosely). Tom asked the court for a lawyer, because he was now doing time in Arizona and suffering from daily migraine headaches. He also asked for a medical expert to assist him in his case, and added that he had limited access to legal materials, limited education, and no litigation experience, and that he had tried to obtain a lawyer but had not succeeded.

The district judge was not impressed. He said Tom had “a meaningful opportunity to present his claims, he has demonstrated familiarity with his claims and the ability to present them, because the issues presented by his claims are not complex, and because this does not appear to be a case in which the presence of counsel would make a difference in the outcome.” Tom was not able to obtain his medical records, and prison staff kept taking away boxes of his legal materials during the case. His discovery requests to the defendant doctors gained him nothing.

At summary judgment, the judge found that when Tom went to him, Dr. Eli had provided “timely and appropriate care.” Without his medical records, Tom had no opportunity to show the contrary. The district court threw out the claim.

On Wednesday, the 7th Circuit reversed the dismissal. The Court stated the obvious: without a lawyer and a medical expert, Tom was “totally outclassed by the defense.” The Circuit observed that:

We are mindful that there is no right to an appointed lawyer in civil litigation. We are mindful too that despite lawyers’ ethical obligation to assist those who are too poor to afford counsel, there may be a dearth of lawyers in a district who are willing and able to serve in this sort of case, and 28 USC Sec. 1915 does not authorize a district court to command unwilling lawyers to represent prisoners… When there is a scarcity of willing lawyers, a trial judge can and should exercise discretion to assign those lawyers to cases in which they are most needed. But we have also recognized that lawsuits involving complex medical evidence are particularly challenging for pro se litigants… If a pro se plaintiff in such a case is unable despite his best efforts to obtain a lawyer and a medical expert, and if the case would have a chance of success were the plaintiff represented by counsel the trial judge should endeavor to obtain them for him.

The appellate panel agreed that Tom had filed “well-written submissions,” had “awareness of the facts” and “understanding of the applicable legal standard.” But, the Court said, “none of these supposed ‘assets’ could transform Tom into a medical expert or find him medical evidence to establish that reputable medical professionals would have strongly disagreed with the treatment that he received for his injuries.” A lawyer would have been particularly helpful with discovery in Tom’s case. “Moreover,” the Court said, “the facts on which James bases his suit are straightforward; assisting him with discovery would not have been an onerous task for a lawyer.”

Tom might be wrong that, nine years after the fact, his pain is he result of ol’ Doc Hatchet in the prison. He “says he still experiences jaw pain and dysfunction (difficulty eating, sleeping, etc.),” the Court of Appeals said. “That may be mistaken, but it definitely is possible that he has a meritorious Eighth Amendment claim if his current difficulty with his jaw is attributable to the injury and if there was some type of treatment or surgery that could have prevented it, which he would have received had he been given adequate medical treatment. On the basis of the record compiled so far, all we know is that he may have suffered terribly because of inadequate treatment and may have sustained permanent injury.”

The panel was fairly clearly exasperated that the district court had not bothered to level the playing field. “We close by noting that this suit began in 2009 and will soon be in its eighth year even though it should have been apparent from the start that the plaintiff would need counsel and a medical expert witness in order to get to first base.”

James v. Eli, Case No. 15-3034 (7th Cir., Jan. 27, 2017)

– Thomas L. Root