Tag Archives: judges

Judges Practicing Medicine Continued

With regard to the recent article about judges issuing court orders for medical treatments while in jail, I wanted to get a legal perspective, so asked my friend David Tatarsky, who is General Council for the South Carolina Department of Corrections, for his thoughts.

South Carolina Department of Corrections

South Carolina Department of Corrections (Photo credit: Wikipedia)

Here is his response:

My thoughts   (all of which must be considered in light of the particular judge you are dealing with):

1.         You are exactly right about the major cause of this problem—–no one in the courtroom representing the interests of the jail/prison. The parties just want to get the plea completed and move on to the next case. Your solution is great if you can successfully develop the type of relationship you have created with the prosecutors.

2.         In some states, judges may be expressly prohibited from requiring particular medical treatment in a sentencing order.  Jails/prisons should check with Legal on this.  The analogous situation is when a judge sentences an inmate and requires the DOC to house the inmate in a particular prison.  In South Carolina, there is a state statute that says the DOC has the exclusive authority to determine where an inmate is housed:

(A) A person convicted of an offense against this State and sentenced to imprisonment for more than three months is in the custody of the South Carolina Department of Corrections, and the department shall designate the place of confinement where the sentence must be served.

Here is another one I use in South Carolina:

SECTION 24-1-130. Management and control of prison system.

The director shall be vested with the exclusive management and control of the prison system, and all properties belonging thereto, subject to the limitations of Sections 24-1-20 to 24-1-230 and 24-1-260 and shall be responsible for the management of the affairs of the prison system and for the proper care, treatment, feeding, clothing, and management of the prisoners confined therein. The director shall manage and control the prison system.

This is basically what attorneys call a “separation of powers” argument.  Managing inmates belongs to the DOC, a part of the Executive Branch of government.  A judge who tries to assume this power is going outside the power/authority of the Judicial Branch of government.

3.         Sometimes the problem can be solved via education.  Judges, like lawyers, have continuing education requirements.  See if you can get this issue addressed at a CLE for the judges.  My office does a lot of training for prosecutors, public defenders and (sometimes) judges on sentencing issues.  Maybe ask the legal office for the DOC in your state if they can help.

4.         Tied in with the education issue—many (most??) judges know little or nothing about how jails and prisons operate, because most attorneys, before they become judges, learn little or nothing about the corrections system.

5.         If your agency has in-house counsel, ask him/her to contact the judge when you get one of these orders.  What I sometimes do is write to the prosecutor and defense attorney, letting them know that the order is improper and asking them (nicely) to have it corrected.  If I get an unsatisfactory response, I sometimes contact the judge’s law clerk.  Judges do not want to look stupid.  If someone points out the issue to the judge (without embarrassing him/her), he/she may fix it.

6.         A “split the baby” approach is to have the judge “recommend” rather than order some form of treatment on the sentencing order.  Then you can just look at the medical issue when the inmate arrives and exercise your own professional judgment.

These are all excellent points.  I wonder how many other states have a “separation of powers” statute like South Carolina’s.  Mine does not (sadly).

I also like David’s idea of trying to get on the judge’s required Continuing Education schedule.  I intend to do this, myself.  If I am successful, I will write about the experience here.

Davis County Jail Success Story

Tied in with David’s thoughts, I especially liked James Ondracek’s comment about his experience:

I have been the Nursing Director at Davis County Jail for almost 20 years now. I have the e-mail addresses and phone numbers of every court clerk in Davis County. I contact them every time we have a medical issue that requires assistance from a judge. None of our current Judges will grant medical furloughs without contacting me first. I have inmates tell me all the time that they requested a medical furlough and the judge told them to talk to the jail medical staff first because he will not grant a furlough without receiving a recommendation from the jail. Likewise we do not currently, have a problem with judges ordering medications in the jail. It has taken many years of working with judges and attending judge meetings and getting prosecutors to help reverse court orders in the past, but it has paid off in the long run. I have met with many of the judges in court chambers about specific inmate needs and discussed having the judge grant medical furloughs and releases from jail when appropriate. It is very worth it to build relationships and understanding with prosecutors, judges, and attorneys. You will not win every battle but from my experience, most judges are glad to contact the jail with a concern and glad to tell the inmate that the jail will take care of his medical needs and he is not qualified to make medical decisions as a judge. Incidentally, I have never had any of our doctors come to a meeting with a judge. I will occasionally ask him for a note to take with me to meet with a judge or the prosecutor but we have always been able to handle this with our in-house staff.

The key quote here is this: It has taken many years of working with judges and attending judge meetings and getting prosecutors to help reverse court orders in the past, but it has paid off in the long run. It takes time and effort to cultivate a close relationship with judges and prosecutors.  But it is well worth the effort.  Besides being a medical care issue, it is also a time-management issue.  I believe that if you spend the time and effort to cultivate these relationships now, you will spend much less time in the long run—by a substantial margin. 20031105

What About Defense Attorneys?

Besides prosecutors and judges, it may also be worthwhile to cultivate a relationship with the defense attorneys.  Here in my hometown, one local defense attorney (who happens to be a friend of mine) organized a tour of the jail for the County Bar Association.  It was surprisingly well attended by around 40 attorneys.  The 1 ½ hour program featured short presentations by sheriff and the jail commander who talked about jail procedures  and another by me about jail medical services.  The attorneys then took a tour of the jail.  The attorneys had lots of questions.  Basically, like David Tatarsky said above, the attorneys did not know much about how jails work.  It was quite eye-opening for most of them.

The feedback was overwhelmingly positive. As part of my presentation, I gave each of the attorneys my personal cell phone number and invited them to call me if they had any questions about the medical services their clients were receiving.  (I reminded them that they had to have a Release-of-Information form signed by the inmate before I could talk to them in detail).  As a result of this, I have received several phone calls in the last month.  But as I told the attorneys, inviting them to call me directly is a time management issue for me.  It takes much less of my time to talk to them directly than to answer their letters, requests for records, subpoenas, etc.

Have you ever invited the Bar Association to tour your facility?  Please comment!

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Judges Practicing Medicine–The Right Response

I received a court order last week, ordering me to provide a certain inmate with several medications (some of them misspelled) during her six month incarceration.  Upon investigation, it turned out that she did not even have a current prescription for all of the medications, but I was ordered to provide her with them nevertheless.  Oh, and I was ordered to give her a double mattress, too.Judge with One of Those Days Look.

Nothing in correctional medicine irritates me more than when a judge tries to practice medicine like this.  It makes me want to tear out my hair and gnash my teeth. And thus begins THE RANT:

THE RANT

You mean to tell me, Judge, that this patient has to remain on these medications while in jail, no matter what?  I cannot exercise any medical judgment?  What if she suffers a severe reaction to one of the medications?  By court order, I cannot change it!  What if the patient herself wants to stop one of the medications?  I cannot accede to her request without violating the court order.  What if her outside doctor wants to withdraw a prescription?  Nope, by court order, that is not allowed.  Do you really intend for her to be on these exact medications for the rest of her life?

Not only is this terrible medicine, Judge, but an insult as well.  Do you believe that I will not do what is best for my patient?  Do you truly believe that I do not care what treatment my patient has received in the past?  Do you truly believe that I am such a bad doctor that the only thing that will keep me from committing medical malpractice is this stupid court order?

OK.  I have wiped the spittle off my computer screen and I feel better now.

But that is not all!  Earlier in the year, a judge approved a medical furlough for an inmate so he could see his “own doctor.”  However, when this inmate went to the doctor’s office upon his release, they would not see him because he did not have an appointment!  What a waste.  Another patient released for a medical furlough did have an appointment, but never showed up for it.  What did she do in the six hours she was away from jail?  I don’t know and neither does the court.  They never checked.  Not only were these furloughs a security breach, both furloughs were totally unnecessary.  I was well aware of each patient’s medical condition and even had talked to the outside doctors to coordinate care.  What a waste of everyone’s time, including the court’s.

Am I the only correctional physician to be cursed with such orders?   Nope.  Having talked to many colleagues, such orders seem to be ubiquitous in correctional medicine!  The question is what to do about them.

It Is Our Duty And Obligation to Oppose These Orders

In my opinion, we cannot simply indulge in a rant, but then shrug our shoulders and blithely obey medical court orders.  Such orders from the court are bad medicine.  It is our obligation and duty to protect our patients from this bad medicine.  The court is, in fact, incompetent to make medical decisions.    It is also our duty and obligation to educate all parties involved that we are competent to deal with inmate medical problems.  We don’t need the court’s “help.”

In order to formulate a game plan, we need look no further than the hearing that resulted in this court order.

Anatomy of the Hearing

20100526To begin, think about the players who were present in the courtroom when this order was issued.  There was the judge, of course.  The defense attorney was there along with our patient, the defendant.  And a deputy prosecutor was there, too.  Now, think about who was NOT in attendance.  The outside doctor(s) who prescribed the medications were not there, provided no testimony and probably did not even know that the hearing was taking place.  In fact, there was no medically trained person in the court room at all.

Who, then, provided the expert testimony about what medical services the patient would need while in jail?  The patient herself, via her attorney!  She acted as her own “expert witness!”  The procedure went something like this:  The patient’s attorney told the judge that the patient had medical problems and would require certain medications and treatments while in jail.  The patient and her attorney then said that they were afraid that these necessary medicines would be stopped as soon as she arrived at the jail.   And this, they alleged, would result in horrible consequences for this patient.

Since none of this patient’s outside doctors was in attendance, no evidence was presented to back up any of these claims.  There was no evidence presented that the patient actually had the diseases she claimed to have.  There was no evidence that the medications she listed were necessary or that they should be continued indefinitely, no matter what.

So why then would the judge issue the order, despite the absence of any medical evidence?  The critical answer is that the prosecutor present at the hearing said he had no objection!  There is the crux of the matter.  If the prosecutor had said, “This court order is unnecessary.  Jail medical can handle this patient’s medical needs,” then the judge would never have issued such an order.  At most, she would have set a date for a formal hearing on the matter.  Or just said, “No.”

So why didn’t the prosecutor object to the issuance of this order?  There are several possible reasons.  The prosecutor is interested in criminal charges, not medical issues.  Whether the inmate gets certain medications or not is no skin off his nose.  Also, if he objects, a formal hearing might be scheduled.  He is busy and he does not want to have to prepare for yet another hearing.  It is much easier just to go along.  Finally, everyone in attendance, from the judge to the attorneys, are ignorant of the medical services available in the jail.  For all the prosecutor knows, everything the patient said is true.  She needs these meds! Maybe the jail Doc will stop them for no good reason!

To summarize, here are three critical facts about the hearing that resulted in the medical court order:

  1. No evidence was presented at the hearing to substantiate the patient’s claims.  No expert witness spoke.
  2. In order for the order to be issued, the prosecutor (who is our representative) had to agree to the court order.
  3. Nobody in attendance understands what medical services are available to incarcerated inmates.  They might not even know that there is a medical service at all.

Fighting Back—What We Can Do To Combat Irrational Medical Court Orders

It would be irresponsible not to do what we can to reverse these bad medical court orders.  There are two priorities here.  The first is to get this particular court order reversed and the second is to do what we can to make sure that no such court orders are issued in the future.

The key to reversing the original court order is to remember that no medical expert attended the original hearing and no medical evidence was introduced.  So to get it overturned, all I need to do is to introduce medical evidence.  The legal term for a written statement of evidence is an affidavit.  The person who will help me prepare this affidavit is the prosecutor who signed off on the original order.  I need to call him (or his boss) and explain that this court order is bad and needs to be reversed.  The prosecutor and I then need to write an affidavit to the court stating all of the reasons that this court order is bad medicine.   The affidavit should basically restate everything I said in the rant above, but in a nice way.  For example, I need to introduce myself and list my qualifications.  That establishes that, hey, there is a real, competent doctor at the jail.  Then I should list the blatant problems with the court order, for example, there is no room for any clinical judgment,  I cannot, by court order, change the medications under any circumstances, such as side effects, or even by patient choice.  If I think that some of these medications are inappropriate for the patient, I can state that and briefly say why (major potential drug interaction, controversial off-label use, dose higher than manufacturer recommendation, etc).

Almost always, the affidavit alone is enough to have the judge rescind the order mandating certain treatments.  Occasionally, the judge will schedule a formal hearing on the subject, but that always seems to go well because the correctional physician is the only medical professional who attends.  I have yet to see an outside physician at one of these hearings.

Writing an affidavit and then perhaps attending a hearing on the matter may seem like a lot of work.  In reality, it will save time in the long run, because it will result in fewer medical court orders in the future.   The defense attorney will be less likely to seek such a court order in the future knowing it will be challenged, the prosecutor won’t blithely sign off such orders without calling me first and the judge will be less inclined to issue such orders.

Educating the Courts.  Meet the Prosecutors.

After the original court order has been reversed, the next task is to do what we can to prevent such orders being issued in the future.  The way to do this is to set up meetings in which you will provide education about jail medical services.  I have had meetings with the judges themselves, but these are often hard to set up.  You can set up meetings with the public defenders, but to meet with every defense attorney in town is hard.  (I have had success setting up such meetings, however).

Fortunately, the easiest meeting to set up is also the most important and that is the one with the Prosecutor’s Office.  A typical Prosecutor’s Office will already have a meeting attended by all of the prosecutors at least weekly.  I have found it quite easy to get a half hour scheduled to talk about jail medicine and the problems with the courts.  In fact, the Prosecutors Offices I have dealt with have been happy, even enthusiastic to discuss jail medical issues.  The main goals for the prosecutors are:

  1. Introduce yourself and your credentials.  It very much helps that, just by talking to the prosecutors face-to-face, they can see that you are a rational, reasonable person.
  2. Describe the problems with the various medical court orders, including medications, furloughs, double mattresses, etc.
  3. Explain how these medical histories are assessed and evaluated in the jail, including discussions with the outside doctors when necessary.  Expect a lot of questions about how meds are approved or disapproved for use in the jail (This is the single most prevalent complaint that they hear in the courts:  “I’m not getting my meds.”)
  4. And most importantly, ask the prosecutors never, ever to approve medical court orders without talking to you first.

I always give the prosecutors my personal cell phone number and invite them to call anytime.  I point out that it will take less time and effort for both them and me if they call me initially rather than have to fill out an affidavit after the fact.

I have attended many such meetings with prosecutors.  These have always gone well.  I usually get several phone calls in the weeks after the meeting from prosecutors asking about certain allegations that were made in court.  But when the prosecutors are armed with the facts, nonsensical medical court orders stop.  Commonly, patients have fudged the truth or outright lied about their medical problems and what has been prescribed for them.  When judges find out this out (from me via the prosecutors), they tend to be irritated—and less likely to entertain medical requests in the future.

Occasionally, I have had to testify in court about medical processes in the jail.  These have always gone well, also, and are again an opportunity to educate the judge about what goes on in the jail.  It sounds especially good when I testify that I have contacted the outside physician and that we jointly have agreed to a treatment plan while the patient is in jail.

By the way, I have never once seen an outside physician testify at one of these court hearings about jail medical issues.  Outside physicians hate to go to such hearings for many reasons:  It disrupts their busy practice schedule, they don’t get paid, and they usually have no objection to the medical treatment the patient is getting in jail, anyway.  This means of course, that I am the only “expert witness” that the court hears.

In the case I initially introduced, I filed an affidavit with the court the next day with the help of the county attorney and the deputy prosecutor in the case.  The court order was amended that very day to read “The foregoing order is subject to the exercise of medical judgment of the medical staff  . . .including, if deemed appropriate, consultation(s) with those physicians who have prescribed the above medications.”

This was good enough for me.  I called the outside physician (which I would have done anyway), and we jointly agreed on a treatment regimen to be used while this patient was incarcerated.  Interestingly enough, this treatment plan did not include most of the medications on the initial court order.

How do you handle medical court orders at your facility?  Please Comment.