Part 3 of 4 Tuesday, December 18, 2001

State puts lockdown on the truth
Texas laws and those who rule on them keep records of poor prison medicine out of public view.

State puts lockdown on the truth Texas laws and those who rule on them keep records of poor prison medicine out of public view
By Mike Ward and Bill Bishop
American-Statesman Staff
Tuesday, December 18, 2001

AMARILLO A Texas prison official wrote superiors in 1996 that "health care personnel had come to her in confidence and just told some terrible things about what they perceived was going on down there." "Down there" was the Stiles Unit near Beaumont. What was "going on," prison officials soon learned, was that inmates were receiving wretched health care and they were dying.

The Texas Legislature voted in 1993 to hire two Texas universities to provide medical care to the prisons. In the fall of '96, prison system administrators decided to check up on the care the University of Texas Medical Branch in Galveston was providing at Stiles. Doctors reviewed the medical charts of 24 dead prisoners. Two-thirds had received "improper" medical care, the doctors determined. Some died in horrific conditions. One man starved in the prison infirmary, and another died a few days after he was found covered in his own excrement.

Except for some extraordinary circumstances, however, the deaths, the audits, the "terrible things" that happened at Stiles would have remained secret. Secrecy is a way of life in Texas prisons. It's a way of death, too. The Stiles death audit leaked out. It was mailed anonymously to a member of the Texas Board of Criminal Justice, the nine citizens who oversee the Texas prison system. Lawyers in a federal court case also obtained the Stiles study as part of litigation that has since ended. The committee that oversees the $297 million-a-year contract with UTMB and Texas Tech University to provide health care to state prisoners should have received the Stiles audit. But if its members took notice of the study, they didn't show it. The full committee didn't publicly discuss the devastating report from prison system doctors at either of two meetings held after the study was completed, according to minutes of the December 1996 and March 1997 proceedings.

In the eight years since UTMB and Texas Tech took over the health care of state prisoners, more than 1,000 inmates have died of disease or injury or old age. UTMB provides care for 80 percent of the prisoners; Texas Tech cares for the rest. Doctors at the universities review case files to determine whether the dead inmates received proper medical care. The Stiles audit, however, is the only report that has seeped into public view.

Unless state law is changed, that's the way it will stay. Attorney General John Cornyn ruled earlier this year that reviews of deaths in state prisons are confidential under state law.

This kind of concealment is typical. Everything from the grievances filed by prisoners to reviews of publicly funded medical experiments to state inspections of blood-splattered kidney dialysis offices are secret, according to state law.

A Cornyn aide said the reason for the secrecy is simple. "There are confidential areas of state law, and these records just happen to fall within those areas," said the aide, who spoke only on the condition of anonymity. "The only way to change that is through the Legislature." The Texas Legislature has been adept at preventing either public exposure or independent oversight of health care in prisons. Sometimes, the Legislature's penchant for secrecy has extended to medical care in what prisoners call the "free world," affecting millions of Texans who might be interested in the quality of care they are receiving.

It is not like this everywhere.

In Florida, for example, audits of prisoners' deaths are posted on the Internet at www.doh.state.fl.us/ cma/reports/.

Legislators, families and inmates can see on the Web or in published reports the number of deaths at each prison, how many of those dead inmates received inadequate care and whether the prison was cited for violating state regulations.

Not so in Texas. The fact is, in Texas, if you ask too many questions if you push too hard against the system you can earn a trip back behind bars.

Kenneth Malone is a jerk, and he knows it. Van Williamson, an Amarillo lawyer who has befriended Malone, calls him a jerk and worse all the time. A parole officer described Malone as an "overdramatic hog salesman." Malone smiles and allows that he can be ornery but, he adds, ornery's not a crime in Texas.

Malone is a stick in the eye of the prison system. He's a computer entrepreneur, a telemarketer who once raised money for the Republican Party and a felon sentenced to 15 years for kidnapping an alleged prostitute in Amarillo. He is now on a one-man crusade against the kind of medical care that's given to some Texas convicts.

Malone entered prison in 1993 with a case of diabetes. He left in March legally blind. Malone blames the prison health-care system for the loss of his sight. He claims he was put on and taken off insulin so many times during his imprisonment in several complaints filed with state and federal officials, he alleges he went for weeks without insulin that he went blind.

Malone's medical records are a jumble of disputes and grievances. Medical officials note that he would refuse treatment. Malone said he would balk only at improper care. So far, his complaints to state and federal officials have gone unanswered.

What's gotten Malone in trouble, what's come close to earning him a return ticket to prison, is that he doesn't back down.

Malone asked for medical records. He challenged prison officials and doctors. He filed lawsuits and complaints, even with the United Nations Commission on Human Rights. He asked for compensation for the poor medical care he received in prison. Malone filed "excessive, frivolous grievances," wrote one irked prison official. "He often complained of medical problems when none could be found as he was transported for treatment and frequently threatened staff with lawsuits, quoting the law."

Malone pushed the system. So the system pushed back. This spring, parole officials first confined the convict to his house and then made it nearly impossible for him to attend college classes. Finally, the state tried to send him back to jail. The state says the issue is simple: Malone agreed to abide by strict rules when he was paroled, and he has since broken those rules. Acting as his own attorney, Malone persuaded an Amarillo judge in April to bar the state from revoking his parole.

"I've never seen that happen," said Williamson.

Why would the state show such an interest in a man now devastated by diabetes, blindness, cancer, obesity, gout, brain damage, hepatitis C, emphysema and kidney disease? It's simple, Williamson said. Malone complained about his maladies, many of which he developed in prison. He repeatedly challenged the system.

"It all has to do with the suit," Williamson said of Malone's legal action based on his medical problems. "They normally don't screw around with people like this."

"I've read some of his briefs, and they're damn good, better than most appellate attorneys could have filed," said Bill Habern of Huntsville, one of Texas' premier parole attorneys. "But he challenged the system. And the system doesn't like that."

For the past several months, Malone has tried to schedule surgery to remove a growth from inside his throat. Early in September, Malone canceled his appointment for the third time. Parole officials again had refused to grant him permission to spend one night in a hospital, he alleged in a lawsuit against the prison system.(PAPA adds that Malone died in the County Jail in Amarillo under possibly strange circumstances)

"One of the problems is that the government doesn't keep very good statistics on prison health care," said Mike Vaughn, a professor of criminal justice at Georgia State University in Atlanta. "But that's even the case in the free world. It's hard to find in the free world whether this doctor is better than another doctor. We know more about corn growing in Kansas than administering health care to people."

In Texas, even the little that is known is often kept private. For instance, the state Department of Health inspects all kidney dialysis units in prisons and in the free world. Inspectors note violations of state regulations and prescribe remedies for problems in procedure or equipment. In July 1997, the department inspected the dialysis office at the Estelle prison unit near Huntsville. The department's list of deficiencies ran 99 pages. Conditions at the Estelle dialysis unit were so bad the Department of Health closed the facility.

What was wrong? That's secret.

Texas began inspecting dialysis facilities in 1995, a year after an outbreak of hepatitis B at one office infected nine people. The law, sponsored by Rep. Garnet Coleman, D-Houston, required the Health Department to inspect dialysis facilities, but it prohibited the department from releasing almost all of the information collected during those inspections both in prison and in the clinics used by other Texans.

The American-Statesman requested reports on all inspections at Estelle, and health officials released a portion of a 1998 "reinspection" of the troubled dialysis office. Health Department officials found more violations in that visit. They discovered blood-flecked chairs (which inmates had to wipe off before they could receive treatment) and evidence that dialysis technicians worked without proper training.

The department contends, and the attorney general agrees, that none of this information should have been made public. The department wanted the documents back, but the American-Statesman refused to return them. Seeing the difference between the full report and the sanitized version released by the department gives some notion of the kind of information that is kept secret from everyone who enters a dialysis clinic .

State law makes it impossible for a patient to discover whether, for example, a dialysis office fails to clean blood from its machinery. In the prisons, however, secrecy about dialysis clinics is just the beginning.

The National Commission on Correctional Health Care or the American Correctional Association inspects each Texas prison. The prison system refuses to release the reports the inspectors issue, a decision upheld by Cornyn. Similar inspections of free-world hospitals can be obtained on the Internet at www.jcaho.org/ qualitycheck/directry/directry .asp. The Texas Department of Criminal Justice maintains a database of inmate grievances. It's secret, the prison system contends. The attorney general agrees.

If anyone wants to see the correspondence between the prison system's chief medical officer and the universities that provide medical care to inmates, the state law says no, according to Cornyn. The letters are secret. When doctors review the deaths of convicts in state prisons, they file reports detailing their findings. Those reports are secret. Last year UTMB ran afoul of regulations governing medical research (see UTMB RUNS AFOUL).

A federal agency ordered the university to suspend a broad range of medical research trials, many of them involving inmates in Texas prisons. The agency found the university was not following proper procedures for using human subjects in medical research. A university committee approves and monitors each of these publicly funded research projects. The minutes of these meetings are private, according to Cornyn.

Researchers who use convicts in medical trials are required to file forms with the prison system. These documents once were open to the public. The Texas Department of Criminal Justice modified its rules this year, however, and now those forms, like so much else, are off limits.

Cornyn ruled on 13 specific categories of documents that the American-Statesman requested and that state agencies wanted to keep secret. He ordered the agencies to release three, including prisoners' autopsies and two types of prison clinic operational reviews.

Earlier this year, the Legislature was ready to pass a bill written by Sen. Jane Nelson, R-Flower Mound, on medical privacy. In part, Nelson's bill would have blocked participants in drug research trials from obtaining their own medical files.

No other state in the nation has such a law. Federal regulations specifically grant subjects of biomedical trials access to their medical records.

When the unusual nature of the proposed law was described in the American-Statesman, Nelson removed that provision. Score one for open government. But this kind of restraint is rare. The closed system of medical care in Texas prisons is, after all, largely a legislative creation.

Instead of hiring state medical schools directly to provide care for inmates, the Legislature appropriates money to the Texas Department of Criminal Justice, which runs the prisons. TDCJ is required to purchase health services through the Correctional Managed Health Care Committee, which the Legislature created to contract with the universities to provide care. Allen Hightower, a former state representative who helped design the system, said the committee was established partly to respond to rulings by the federal court.

"As long as medical stayed under (TDCJ), people who were delivering health care were answering to corrections officers or the board," Hightower said recently. "The court felt that medical people ought to be making the medical decisions on their own."

The new system, however, tended to "blur the lines of responsibility and accountability," said the state auditor in 1998, and it lacked "a comprehensive monitoring system." The contract signed with the universities, for instance, contained no penalty for poor quality of care. And when the Department of Criminal Justice two years ago proposed that its doctors review the quality of care provided by the universities, the Legislature specifically forbade the agency from taking on those duties.

"There is no other system that works that way, believe me," said B. Jaye Anno, a former Texas prison official who has written a book on health care in the nation's prisons. "The state always retains the authority to monitor the care that is given. That's the way most of the contracts read. Texas is unique in this respect: The client, TDCJ, does not have the authority to monitor the services of its outside consultant (the universities)."

"We've had a lot of issues to deal with in past years," said Raimer, the UTMB vice president. "We meet once a month (with TDCJ and Texas Tech officials) to discuss the quality of care. Quality of care remains a focus of our efforts, and I think our care is excellent. The prisoners are appreciative of the care they get here."

By this year, Dr. Lannette Linthicum, TDCJ's medical director, appeared to accept her department's subservience to UTMB and Texas Tech. Rep. John Shields, a San Antonio Republican, had introduced a bill that would require the universities to respond to inmates' medical grievances within 20 days. (In September, the universities agreed in a new contract to respond within 45 days.) Shields' bill didn't apply to all grievances, just those TDCJ doctors felt could be legitimate complaints.

Testifying about the bill, Linthicum explained that although she is medical director of the Department of Criminal Justice, she lacks control over the care given to inmates (see DIRECTOR).

Some elected officials seemed surprised that the chief doctor for the prisons had no control over the medicine practiced on inmates, even though the Legislature created this arrangement.

"But you're responsible for those inmates," said Rep. Jessica Farrar, D-Houston. "How do you resolve that?"

"It's hard; it's difficult," Linthicum responded. "But when you get into quality-of-care issues, that's under the purview of the universities." Farrar continued, "My frustration is, you are responsible. . . ."

"But I have no authority," Linthicum cut in. Farrar fumed: "It's a violation of medical ethics. It would never happen in the free world." It wouldn't. Shields' bill died without a vote.

You may contact Mike Ward at mward@statesman.com or (512) 445-1712 and Bill Bishop at bbishop@statesman.com or (512) 445-3634.

Director

In charge but shut out of quality control.

DIRECTOR

In charge but shut out of quality control Tuesday, December 18, 2001

Dr. Lannette Linthicum is health services director at the Texas Department of Criminal Justice. She is also, for the Texas prison system, an anomaly: a black, Northern, female professional in a position of power. In a 1998 deposition in the David Ruiz case, Linthicum answered questions from attorney Donna Brorby, explaining what it was like to come to Texas in 1986 after she received her M.D. from Johns Hopkins University:
Brorby: Did you have a name when they talked about you?
Linthicum: They called me "that colored Yankee doctor" when I first came.
Brorby: They didn't stick "that woman" in there?
Linthicum: No; just "colored Yankee doctor."
Brorby: You were fairly unhappy, weren't you?
Linthicum: Oh, I was.
Brorby: What caused you to stay?
Linthicum: Well, a couple of things. As time passed things got better. Then I realized that the type of medicine I wanted to practice was primarily just to an underserved population, an indigent population. And I had always planned to have a practice in an inner city, in a community health-care center, and I discovered that my patients were already where I was incarcerated. And I felt they needed me more inside the prison, so I stayed, and it's been very rewarding.

UTMB runs afoul State shields details of tests from public.

UTMB RUNS AFOUL

State shields details of tests from public
Tuesday, December 18, 2001

GALVESTON Federal officials found "scant evidence" in a July 2000 inspection that the University of Texas Medical Branch had followed regulations for protecting prisoners enrolled in medical research trials. Convicts had not been fully informed of the risks in some tests. In one study, the federal regulators alleged, prisoners with ovarian cancer were asked to sign a consent form that vastly overstated the benefits of participation. In more than half the 25 UTMB research projects it reviewed, the federal Office of Human Research Protections found problems. In nine, it questioned whether prisoners should have been allowed to participate at all. Federal officials first ordered UTMB that July to stop enrolling prisoners in 195 federally funded research projects; in September, the agency suspended roughly 300 studies including those involving 99 convicts.At the time, UTMB had about 1,400 studies under way.

UTMB officials said the directive was the result of a misunderstanding, and within two months, the university had satisfied federal officials it could follow the rules. The tests resumed.

UTMB instituted changes after this run-in with federal authorities. The hospital now has several review boards, not just one, to oversee the testing. A member of the Correctional Managed Health Care Committee may attend meetings of these boards. And each medical test must now be approved in advance by the prison system's medical director.

Dr. Ben G. Raimer, a UTMB vice president, said the university is doing less research using prisoners. "All research has been scaled back since the issues that arose last year," Raimer said.

But what had gone wrong in the first place? It's impossible to know.

At first, UTMB officials promised to provide the American-Statesman with the meeting minutes of the university board that oversees medical tests. The cost of redacting confidential information from these documents, UTMB announced, would be $41,610. UTMB and the University of Texas System then petitioned Texas Attorney General John Cornyn to keep secret all the minutes. Cornyn sided with the university.