Incompetent Jail and Prison Doctors

Abstract

Previous research has questioned the clinical qualifications and professional competence of physicians who work in correctional facilities. This article further explores these issues by analyzing social control mechanisms that are employed against prison and jail physicians who (a) have been sued in state court by prisoners for medical malfeasance and malpractice, and (b) have had disciplinary action taken against their license to practice medicine. Physicians who were subject to suit are categorized by type of suit, medical complaint, plaintiff's injury, and disposition of the litigation. Drawing on previous research, the authors also classified physicians' rationalizations to prisoner litigation within Sykes and Matza's techniques of neutralization framework. Reporting that prison and jail doctors have higher rates of disciplinary action taken on their license than physicians at large, the article uses the principle of less eligibility to question the ethics of restricting problem doctors to work exclusively in correctional facilities.

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The Prison Journal
2000; 80; 151 The Prison Journal
Dean A. Dabney and Michael S. Vaughn Incompetent Jail and Prison Doctors
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THE PRISON JOURNAL / June 2000Dabney, Vaughn / INCOMPETENT JAIL AND PRISON DOCTORS
INCOMPETENT JAIL
AND PRISON DOCTORS
DEAN A. DABNEY
MICHAEL S. VAUGHN
Georgia State University
Previous research has questioned the clinical qualifications and professional compe-
tence of physicians who work in correctional facilities. This article further explores
these issues by analyzing social control mechanisms that are employed against prison
and jail physicians who (a) have been sued in state court by prisoners for medical
malfeasance and malpractice, and (b) have had disciplinary action taken against
their license to practice medicine. Physicians who were subject to suit are categorized
by type of suit, medical complaint, plaintiff’s injury, and disposition of the litigation.
Drawing on previous research, the authors also classified physicians’ rationaliza-
tions to prisoner litigation within Sykes and Matza’s techniques of neutralization
framework. Reporting that prison and jail doctors have higher rates of disciplinary
action taken on their license than physicians at large, the article uses the principle of
less eligibility to question the ethics of restricting problem doctors to work exclusively
in correctional facilities.
Correctional institutions are foreboding places in which some of society’s
least desirable, socially unskillful, and unhealthy individuals are housed
(Marquart, Brewer, Mullings, & Crouch, 1999). Commentators observe that
these facilities are filled with “vicious, predatory, cold-blooded, and
remorseless people who have no conscience” (Haney, 1998, p. 37). The typi-
cal prisoner who seeks correctional health care is viewed by staff as a “con, a
word that seems to indicate both a judgment that the prisoner is primarily a
criminal or convict, rather than...ill, and a sense that the symptoms of...ill-
ness may be malingered” (Schultz-Ross, 1993, p. 105). In this environment,
health care personnel are cautioned that “empathy [with prisoners] will be
your downfall” (Maeve, 1997, p. 504). Formal training programs instruct
health care personnel that they should “never touch [a prisoner] except when
An earlier version of this article formed the basis of a presentation at the 1999 meetings of the
American Society of Criminology, held in Toronto, Canada. Authorship is alphabetical; both
authors contributed equally to the completion of the article.
THE PRISON JOURNAL, Vol. 80 No. 2, June 2000 151-183
© 2000 Sage Publications, Inc.
151
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absolutely necessary” (Maeve, 1997, p. 504), and that all “dealings with
[prisoners must be] characterized by distance and formality” (p. 507).
Because contemporary penal policy defines prisoners as enemies and
ascribes to them “attributes that make them initially less deserving of the
most basic amenities and civilities, and ultimately less than human” (King,
1998, p. 617; Vaughn, 1999), correctional health care systems do not provide
“attractive employment prospects for most” physicians (Friedman, 1992,
p. 942). Indeed, previous research has questioned the medical skills, compe-
tence, and ethics of physicians who work in correctional institutions (Vaughn &
Smith, 1999a, 1999b). The central question guiding this article is, Why
would a physician voluntarily work in a health care setting where staff
believe that all their patients manipulate providers and feign illness? Our
hypothesis is that correctional physicians’ employment opportunities are
limited, because they experience higher rates of disciplinary action and sanc-
tion against their license to practice medicine than physicians at large.
Grounded within the principle of less eligibility (Vaughn & Carroll, 1998),
we posit that prisoners’ low social status makes them less deserving of
high-quality medical care, explaining why physicians with questionable
medical qualifications practice disproportionately within correctional health
care systems.
To explore these issues, we examine two mechanisms of formal social
control employed against physicians in correctional facilities. First, we
assess lawsuits filed by prisoners in state courts seeking monetary damages
and injunctive relief for inadequate correctional medical care. Here, we ana-
lyze the content of court rulings to develop a descriptive profile of how
inmates, doctors, and the courts are defining and responding to medical mis-
conduct in U.S. correctional facilities. Second, we cross-reference physi-
cians identified in our case law analysis with physicians who have had state
or federal disciplinary action taken on their license to practice medicine. The
article concludes by questioning the ethics of sentencing incompetent doc-
tors to exclusively practice in correctional facilities, and by calling for more
systematic research on correctional physicians who have had disciplinary
action taken against their privilege to practice medicine.
LITERATURE REVIEW
FREE WORLD PHYSICIANS RATIONALIZE DEVIANCE
The Institute of Medicine within the National Academy of Sciences
(Kohn, Corrigan, & Donaldson, 2000) estimates that 44,000 to 98,000
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patients die annually in the United States due to medical errors or mistakes.
News accounts (Pear, 1999; Stolberg, 1999) indicate that the public is both
shocked and concerned about the fact that such large numbers of mistakes
occur and, more important, that an organizational code of silence allows
these actions to go largely unchecked. Rosenthal (1995) documented that
free world physicians engage in a delicate mental and verbal exercise when
confronted with negative health outcomes. His interviews with physicians
revealed that they rarely admitted their mistakes and seldom accepted culpa-
bility when their patients experienced negative health outcomes. Instead,
physicians’ discussions of negative patient outcomes revolved around issues
such as “permanent uncertainty,” “necessary fallibility,” “shared personal
and professional responsibility,” and the “exclusivity of professional judg-
ment.” Rosenthal concluded that these verbal and cognitive exercises on the
part of doctors serve to reconstruct mistakes as accidents, and the doctors
adeptly convince themselves and others that they were (a) not at fault and (b)
should not be held directly responsible for their patients’ negative health
outcome.
Jesilow, Pontell, and Geis (1993) engaged in a similar exercise in which
they reviewed a sample of disciplinary proceedings taken against California
doctors accused of Medicare/Medicaid fraud. Categorizing physicians’ writ-
ten responses to charges using Sykes and Matza’s (1957) techniques of neu-
tralization, Jesilow et al. (1993) explored how physicians redefine their
behaviors so as to avoid the displeasures that go with negative personal and
public definitions of their improprieties.1As predicted by Sykes and Matza,
Jesilow et al. reported that physicians use verbal and cognitive rationalization
schemes to account for or justify their behaviors. That is, physicians’ com-
ments and thought processes downplayed the fault associated with their
actions and, in doing so, drew on a finite set of explanations. Similar cogni-
tive exercises also have been observed among free world nurses (Dabney,
1995) and pharmacists (Dabney & Hollinger, 1999).
CORRECTIONAL PHYSICIANS’ COMPETENCE
There is a widespread belief in the medical community that correctional
physicians are inept and cannot find free world employment, necessitating
their appointment in prisons and/or jails (Becker, 1999a; Skolnick, 1998b;
Steptoe, 1986). Indeed, journalistic, scholarly, and legal representations of
the clinical qualifications and professional competence of correctional health
personnel paint a disturbing portrait. Journalists report that “disciplined doc-
tors who are not allowed to practice on the general public are permitted to do
so behind bars—even if they have lost their Drug Enforcement Administra-
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tion (DEA) license for prescribing controlled substances” (Allen & Bell,
1998, p. G2). Although the exact number is unknown, investigative reporters
have estimated that somewhere between 15% to 78% of correctional physi-
cians practice medicine with restrictions on their medical license (Allen &
Bell, 1999). For example, 30% of the 129 doctors who work in Florida’s
prison system were “not fully licensed or have a blot on their record”
(Becker, 1999b, p. 1B). According to Skolnick and Bell (1998, p. G9), 9 of 35
prison physicians working for Correctional Medical Services (CMS) in Mis-
souri experienced disciplinary action on their license to practice medicine.
This means that 26% of CMS physicians in Missouri and 30% of Florida’s
prison doctors (compared to 2.4% of physicians in the general population)
have had sanction on their medical license for misconduct (Wolfe, Franklin,
McCarthy, Bame, & Adler, 1998, p. 5).
With respect to civil litigation, numerous courts have ruled that prison
health staff lack adequate training and credentials. A federal judge in 1994,
for example, ordered the District of Columbia to “ ‘replace its unlicensed’
personnel ...finding that ‘many of the front line treatment staff were unli-
censed, inadequately trained, and poorly supervised paraprofessionals’ ”
(Vaughn & Carroll, 1998, p. 21; Lezin, 1996, p. 194). In another case, the
U.S. Court of Appeals for the Eleventh Circuit commented that “it is diffi-
cult...toobtain [medical] experts . . . who are willing to accept full-time
employment in a penal institution. . . . The lack of knowledge of certain pri-
mary care physicians . . . relating to some seemingly basic terminology about
the diagnosis, prophylaxis, monitoring, and treatment of [serious health con-
ditions] is disturbing” (Harris v. Thigpen, 1991, p. 1508). Likewise, correc-
tional physicians have been implicated in denying and delaying medical care
to prisoners, resulting in nontreatment of serious injuries and illnesses,
denial of life-sustaining care, needless pain and suffering, and the alternation
of free world physicians’ diagnoses and care recommendations for
nonmedical reasons (Vaughn, 1995, 1999). Civil courts also have ruled that
correctional physicians mishandle adequate pain control regimens, render
improper diagnoses and treatments, replace adequate care with inefficacious
care for punitive reasons, engage in a disproportionate number of practices
leading to medication errors, and perform contraindicated medical proce-
dures on inmates (Vaughn, 1997, 1999).
The scholarly literature also provides evidence that health personnel who
work in corrections are less qualified than their colleagues who work in the
free world (Berkman, 1995; Blumberg & Mahaffey-Sapp, 1997). “Prison
medical care sometimes is delivered by unlicensed physicians, doctors with
substance abuse problems, doctors with criminal histories, and licensed and
qualified doctors that treat ailments for which they lack training or experi-
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ence” (Vaughn & Carroll, 1998, p. 20). At a prominent prison hospital, for
example, the “consulting cancer specialist ...neverqualified to take the spe-
cialty boards and is not a member of either of the two medical societies for
cancer specialists” (Berkman, 1991, p. 420). In too many facilities, correc-
tional medical personnel with “no nationally recognized qualifications”
administer a majority of the care (Loveday, 1993, p. 17). According to the
Federal Bureau of Prisons, physician assistants (PAs) provide 75% to 80% of
all primary care to inmates (“BOP and DOD,” 1997); however, many PAs “do
not meet the training and certification requirements of the medical commu-
nity outside” of correctional facilities (U.S. General Accounting Office,
1994, p. 3). For example, “34 of the 66 physician assistants working in the
Federal Bureau of Prisons at its seven medical referral centers have
not...graduated from a program approved by the American Medical Associ-
ation nor obtained certification from the National Commission on Certifica-
tion of Physician Assistants” (U.S. General Accounting Office, 1994, p. 11).
In sum, journalists, courts, and scholars paint a disturbing picture of the clini-
cal qualifications and professional competence of correctional medical per-
sonnel. Framed within the principle of less eligibility, evidence suggests that
prisoners are less entitled to the services of highly trained health care provid-
ers compared to citizens in the free world.
METHODOLOGY
From January 1, 1980 to November 4, 1999, we identified correctional
physicians who were sued in state courts through the Westlaw online data-
base.2In the “allstates” database, our search strategy identified the terms
prison or jail within the same paragraph with the word medical, and linked
those terms to the word liability. This produced 977 cases, including hun-
dreds that either (a) did not pertain to a prison or jail medical care lawsuit or
(b) did not identify by name a physician in the correctional setting. Moreover,
we had many cases that pertained to correctional health care that were omit-
ted from our analysis because the defendant was the institution, administra-
tors, or medical care staff other than physicians. Thus, we selected only those
cases (n= 121) where the correctional physician was identified by name.3
Given that prisoners were the plaintiffs in all of these cases, their input on
the subject was gleaned from those sections of the court rulings that detailed
the factual specificity and legal basis for their claims. Relevant cases were
read individually, and the following descriptive information was
recorded/summarized on a standardized data collection template: the names
of the legal parties involved, the legal citation, the court in which the claim
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was made, the names of the physicians affiliated with the correctional facility
in question, the factual basis of the plaintiffs’ claim, the legal basis for the
plaintiffs’ claim, the physicians’ response, and the courts’ disposition of the
case.4Aspects of these descriptive data were then used as the basis for a series
of subsequent second-order coding passes. In the first of these coding passes,
we identified the precipitating treatment actions/inactions that motivated the
prisoners to seek civil remedies. Here, we referenced the section of the data
template that contained a summary of the plaintiffs’ allegations and catego-
rized them using the following eight-part classification scheme: denial of
care, delay of care, poor or improper delivery of care, faulty diagnosis, unau-
thorized/unwanted delivery of care, unqualified/unlicensed care, unethi-
cal/inhumane behavior, and an improper response to a hunger strike.
The next second-order coding pass sought to determine the nature of the
alleged negative health outcomes that resulted from the physicians’
actions/inactions. By specifying the negative physical and/or mental health
outcomes that resulted from physicians’ actions/inactions, we classified pris-
oners’ claims according to whether they resulted in death, permanent disabil-
ity, temporarily diminished quality of life (e.g., pain or discomfort), or per-
manently diminished quality of life (e.g., cosmetic scarring or chronic
illness).
Building on the insights gained by Rosenthal (1995) and Jesilow et al.
(1993), this article assesses the ways that the doctors responded to formal
social control efforts (court actions) that alleged substandard care or
instances of medical misconduct. As such, in our final second-order coding
of the case summaries, we sought to determine the physicians’ responses to
the plaintiffs’ claims. Here, details from the cases were used to classify the
physicians’ responses to charges within Sykes and Matza’s (1957) neutral-
ization framework. That is, we classified each physician’s response as an
example of one of the following: denial of responsibility, denial of injury,
denial of victim, condemnation of condemners, and appeal to higher loyal-
ties. Like Jesilow et al. (1993), we note that because we used the physicians’
after-the-fact legal defenses, “we could not determine whether the doctors
had fashioned their explanations before or after they committed the abuses”
(p. 154).
Given the poor work conditions, low pay, and diminished prestige that
goes with being a correctional physician, one would expect that this line of
medical work would run the risk of attracting the least qualified and compe-
tent members of the medical profession. Namely, this will be evidenced, to
some degree, via the above detailed analysis centered on prisoner-initiated
judicial actions against correctional doctors. This line of inquiry allows us to
determine the frequency with which prisoners turn to the state-level judicial
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system to seek remedies for the poor medical care that they allegedly
received at the hands of correctional physicians. However, these data only
speak to the patients’, and subsequently, a court’s appraisals of a correctional
doctor’s competency. They do not allow us to assess the medical profession’s
judgment of the physician’s competence.
To tap this domain, our analysis also assessed a second form of social con-
trol directed toward allegations of medical misconduct by jail and prison
physicians. Namely, we cross-referenced the names of correctional physi-
cians sued with a sourcebook on formal social control by the medical profes-
sion to determine if those individuals have had disciplinary action on their
license to practice medicine. Gray (1992) observes that there are a wealth of
state and federal licensing and regulatory entities that indirectly speak to the
issue of competency via the formal social control efforts that are placed on
practicing physicians. Unfortunately, scholars have concluded that there
exists little communication and data sharing between these various regula-
tory entities (Dodge, 1998; Skolnick, 1998a, 1998c).5
The Public Citizen Health Research Group was formed, in part, to remedy
this situation. This nonprofit consumer advocacy organization seeks to pro-
vide citizens with up-to-date information on instances of medical miscon-
duct. Since 1987, this organization has been collecting, analyzing, and dis-
tributing data on disciplinary actions taken against practicing physicians.
The resulting database, entitled 16,638 Questionable Doctors Disciplined by
State and Federal Governments (Wolfe et al., 1998), offers summary data on
all disciplinary actions taken by the following four types of regulatory enti-
ties: (a) the State Medical Boards from all 50 states and the District of
Columbia, (b) the DEA’s disciplinary actions taken against doctors who vio-
late mandate practices for the dispensing of controlled substances, (c) the
Food and Drug Administration’s (FDA’s) disciplinary actions against doc-
tors who violate the regulations and policies that govern clinical research on
patients, and (d) the U.S. Department of Health and Human Sciences’ disci-
plinary actions taken against doctors who violate the terms of the Federal
Medicare program.
For each of the doctors named in the above-mentioned case law analysis,
we referenced this four-volume set to determine if there had been any formal
regulatory or licensure action taken against the individual from 1987 to 1998.
Where the cross-referencing technique yielded a match, we recorded the fol-
lowing information: the doctor’s name and license number, the regulatory or
licensure entity that initiated the action, the date of the action, the nature of
the offense in question, and the resulting disciplinary action. The authors of
the four-volume set enlist a user-friendly set of codes to categorize both the
nature of the offense and the disciplinary actions for each case. We used these
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codes to provide the reader with descriptive information on the past offense
types and the resulting disciplinary actions taken against correctional physi-
cians named in the court cases.
RESULTS
JUDICIAL SOCIAL CONTROL OF JAIL AND PRISON PHYSICIANS
Prisoners’ allegations of physician misconduct. Overall, we found 189
physicians using the case law search detailed above. Some of these doctors
were named in several actions; thus, the number of claims against doctors
totaled 202.6Of this group, 139 of the physicians were identified by their full
name or initials, and 50 physicians were identified in the court case only by
their last name. As reported in Table 1, our coding of the court opinions
revealed that allegations of poor or improper care were the primary impetus
for the plaintiff’s court action, accounting for half (50%, n= 100) of the 202
claims against jail and prison physicians. By way of example, these allega-
tions included the failure to render proper care to an inmate with a spinal
injury (Luther v. Compton, 1998), an inmate with a skin disorder (Gunter v.
State, 1987), an inmate with an abscessed tooth (Gordon v. Cannell, 1996),
an inmate with a lung condition (Flamer v. Redman, 1988), and an inmate
with a broken leg (Auger v. State, 1999).
Table 1 shows that a charge of denial of care was issued against 40 doctors
(20%). Examples of these charges included a doctor who ordered no tests and
provided no treatment despite an inmate’s 105° fever (Ochoa v. Superior
Court of Santa Clara County, 1983), a doctor who refused to treat a diabetic
inmate’s foot injury (Cantrell v. Thurman, 1998), a doctor who refused to
provide a diabetic-appropriate diet to a diabetic inmate (Montanez v.
Questcare, 1996), and a doctor who provided no remedial care to an inmate
stroke victim (Napier v. Warden, 1990).
158 THE PRISON JOURNAL / June 2000
TABLE 1: Prisoners’ Allegations of Physician Misconduct (
N
= 202)
Type of Allegation
n
Percentage
Poor or improper care 100 50
Denial of care 40 20
Faulty diagnosis 26 13
Delay of care 12 6
Unethical/inhumane care 9 4
Unqualified/unlicensed delivery of care 6 3
Unwanted/unauthorized care 5 3
Forcible response to a hunger strike 3 1
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A faulty diagnosis was the impetus for 26 (13%) of the claims (see Table 1).
This included the doctor who did not diagnose a prisoner with hepatitis (Oli-
ver v. Townsend, 1988), the doctor who failed to diagnose an inmate’s herni-
ated lumbar disk (Rewald v. San Pedro Peninsula Hospital, 1994), the doctor
who failed to diagnose an inmate’s rectal cancer (Ballengee v. Ohio Depart-
ment of Rehabilitation and Correction, 1996), and the doctor who failed to
diagnose an inmate with a perforated ulcer (Gillam v. Lloyd, 1988). Data in
Table 1 reveal that a perceived delay in care was charged against 12 (6%) of
the physicians. For example, there was the doctor who admitted an inmate
having a heart attack to the prison infirmary instead of sending him to the
hospital for immediate treatment (Pan v. California State Personnel Board,
1986); the doctor who refused to authorize corrective surgery for an inmate,
even though two other physicians recommended it (Keenan v. Maass, 1996);
the doctor who refused to surgically remove a painful cyst, instead incising
and draining it periodically (Wilson v. Hun, 1995); and the doctor who did not
timely treat an inmate’s ear infection, resulting in hearing loss (Kagan v.
State, 1996).
Nine doctors (4%) were accused of unethical/inhumane care (see Table 1).
These allegations included exposing an inmate to asbestos (Hampton v.
Lloren, 1997), enrolling an inmate without his consent into a Hepatitis B
Virus study (McNeil v. Brewer, 1999), failing to take precautions to protect
noninfected inmates from inmates who had tuberculosis (Bilbo v. Thigpen,
1994; McFadden v. State, 1989), and laughing at a naked female inmate on
suicide watch (Rushing v. Wayne County, 1990).
Referring again to Table 1, six (3%) jail and prison doctors were said to be
unqualified or unlicensed to deliver the care in question. Most notable among
this category was the pediatrician/director of the prison medical unit who
denied an inmate orthopedic surgery recommended by a free world specialist
without consulting the medical records or conducting an examination
(Kirsch v. Start, 1994).
Table 1 also shows that five (3%) of the physicians were accused of pro-
viding unwanted or unauthorized care. There was the doctor who mistakenly
removed an inmate’s prostate (Smith v. Ohio v. State University Hospital,
1996), and the doctor who assisted the state in forcibly medicating an inmate
(California Department of Corrections v. Office of Administrative Hearings,
1997). In another case (Horton v. Collins, 1996), the doctor prescribed peni-
cillin to an inmate, even though his medical chart indicated an allergy. Yet
another example involved the doctor who sought to compel an inmate to
undergo unwanted kidney dialysis (Polk County Sheriff v. Iowa District
Court for Polk County, 1999). Three physicians (1%) were challenged for the
way that they forcibly responded to an inmate’s hunger strike, including the
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doctor who testified that the inmate suffered from borderline personality dis-
order (Department of Public Welfare v. Kallinger, 1990) and the doctor who
testified that a liquid diet was not medically indicated (Stevenson v. Lanham,
1999).
Prisoners’ negative health outcomes. The court narratives revealed that
actions or inactions on the part of the correctional physicians resulted in a
variety of negative health outcomes for the prisoners in question. Table 2
indicates that the actions led to 19 (9.4%) prisoner deaths. For example, there
was the doctor who did not treat a diabetic prisoner (Howard v. City of
Columbus, 1995), the doctor who did not refer an inmate with a brain abscess
to a specialist for 10 days (LeFay v. Coopersmith, 1990), the jail doctor who
refused to transfer a detainee with a torn colon to a hospital after a car acci-
dent (Hill v. City of Saginaw, 1986), and the doctor who did not properly
monitor an asthmatic inmate’s use of medications (Baltzer v. Ohio Depart-
ment of Rehabilitation and Correction, 1993).
Table 2 reveals that 48 prisoners (15.3%) claimed to suffer permanent
physical disabilities (e.g., loss of limbs or vital senses) at the hands of jail and
prison doctors. Included in this group was the inmate whose leg was ampu-
tated from gangrene after being returned to an unsanitary facility following
surgery (Kyriss v. State, 1985); the inmate with a perforated ulcer who went
undiagnosed for 22 hours (Flores v. Natividad Medical Center, 1987); the
inmate who was forced to take a shower with a cast on his leg, resulting in
gangrene and amputation of several toes (Vega v. Morris, 1995); the inmate
who had an abscessed testicle surgically removed after 4 months of
nontreatment (Zuck v. State, 1988); the inmate who was improperly treated,
resulting in blindness (Wright v. State, 1985); and the inmate whose leg was
amputated after the prison doctor refused to administer antibiotics for infec-
tions (Gullette v. State Through Department of Corrections, 1980).
Thirty-four (16.8%) prisoners (see Table 2) claimed to suffer some form
of permanent loss in their quality of life (e.g., noticeable scarring or chronic
illness). Some examples of these claims included the doctor who failed to
remove bone fragments from an inmate’s nasal passages after surgery, result-
160 THE PRISON JOURNAL / June 2000
TABLE 2: Prisoners’ Negative Health Outcomes (
N
= 202)
Type of Negative Health Outcome
n
Percentage
Death 19 9.4
Permanent physical disability 48 15.3
Permanent loss in quality of life 34 16.8
Temporary loss in quality of life 118 58.4
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ing in a deviated septum (Jacques v. State, 1984); the doctor who did not get
an inmate emergency treatment for cardiac problems, which resulted in a
heart attack (Fiedler v. Spoelhof, 1992); the doctor who did not timely treat an
inmate’s developing diabetes (Nelson v. State, 1982); and the doctor who did
not perform surgery on an inmate’s torn Achilles tendon, resulting in perma-
nent range of motion restrictions (Watson v. State, 1993).
A total of 118 (58.4%) prisoners claimed to sustain some form of tempo-
rary loss in their quality of life (e.g., pain or discomfort) at the hands of the
doctor in question (see Table 2). These claims included the inmate who suf-
fered withdrawal when the doctor discontinued his pain medication (Cooper
v. Bowers, 1986), the inmate who suffered through 7 months of untreated
tuberculosis (Haavisto v. Perpich, 1994), the inmate who suffered from
untreated back pain effectively treated previously by free world physicians
(Howard v. Jonah, 1993), the inmate who experienced pain when a prison
physician failed to remove sutures following hernia surgery (Goad v.
Pasipanodya, 1997), and the paraplegic inmate who was locked in a room
without a wheelchair for 9 days by the prison physician and was forced to
void his bowels with his hands (Brown v. State, 1980).
Correctional physicians’ rationalizations. Our efforts to code the doctor’s
responses to the allegations within Sykes and Matza’s (1957) techniques of
neutralization yielded interesting results. According to Table 3, more than
one third (36.6%, n= 74) of the doctors offered explanations that best fit
under the heading of denial of responsibility. Most often, this meant that they
skirted direct responsibility for the negative outcomes by blaming them on
external entities such as other jail or prison staff members, free world doc-
tors, or private companies who contracted with the government to provide
medical services. In effect, correctional physicians attempted to shift respon-
sibility away from themselves and onto those health care providers who
either diagnosed the condition or performed the care in question. Such was
the case in Herbert v. District of Columbia (1998), where medical staff at the
District of Columbia jail worked for the Professional Developmental Corpo-
ration, a private firm who had contracted with the District to provide medical
services to prisoners. When an inmate suffered from “nausea and abdominal
cramping secondary to withdrawal from narcotic addiction,” medical offi-
cials injected “dextrose or dextrose-and-sodium-chloride” into both of her
thighs, causing “swelling, redness, blistering, and cellulitis.” In response to
the inmate’s lawsuit, jail physicians argued they were not state actors because
they worked for a private corporation. These physicians engaged in a text-
book example of denial of responsibility, in which they blamed their mal-
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practice on the private corporation providing the care, refusing to accept full
blame for their acts.
In other cases, doctors denied responsibility by attributing the unwanted
health outcome to an unanticipated or unforeseen mistake. In short, they
claimed that nature’s outcome was beyond their control as a doctor. For
example, in District of Columbia v. Anderson (1991), a diabetic inmate who
suffered from vascular and circulatory problems was seen by the prison doc-
tor. While attempting to trim the inmate’s toenails, the doctor cut the little toe
on the inmate’s left foot. The doctor gave the inmate an antiseptic ointment,
but provided no further follow-up care. In the days that followed, his condi-
tion worsened significantly as an infection developed. As a result, his left leg
was amputated at the knee. The inmate sued, and the prison doctor claimed
that the inmate’s diabetes was the cause of the amputation, not medical mal-
practice. In this case, the prison physician denied responsibility, arguing that
that the inmate’s amputation resulted from the natural progression of the dis-
ease, not the incompetence of the doctor.
We concluded that one fourth of the doctors (n= 51) adhered to an expla-
nation that could best be described as a denial of injury (see Table 3). Here,
the doctor might simply contend that he or she provided ample or even exem-
plary care to the inmate in question. In Sloan v. Ohio Department of Rehabili-
tation and Correction (1997), a 300-pound inmate entered prison with a
below-the-knee amputation. At the prison, he initially used a wheelchair and
aluminum crutches. For security reasons, the prison physician took these
items and gave the inmate wooden crutches. The inmate complained, saying
the wooden crutches were unsafe, buckling, and slipping on the floor. When
the prisoner’s crutches snapped in two, he fell to the ground and broke his
arm, which resulted in a permanent disability. The doctor argued that given
the need to preserve institutional security and safety, the health care provided
to the inmate was appropriate and within acceptable medical standards.
Thus, the prison physician asserted that no injury could be attributed to him.
By “citing the superordinate benefits of the act” (Jesilow et al., 1993, p. 161),
162 THE PRISON JOURNAL / June 2000
TABLE 3: Correctional Physicians’ Rationalizations (
N
= 202)
Technique of Neutralization
n
Percentage
Denial of responsibility 74 36.6
Denial of injury 51 25
Condemnation of condemners 33 16.3
Apologia 19 9.4
Denial of victim 15 7.4
Appeal to higher loyalties 10 5
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the physician was attempting to justify removal of the metal crutches on the
basis of institutional security and custody. Sykes and Matza (1957) argued
that denial of injury occurs in situations of “gang fighting...[which are
viewed] as a private quarrel, an agreed upon duel between two willing par-
ties, and thus of no concern” (p. 667) to the physician. Under these condi-
tions, there is a “question . . . whether or not anyone has clearly been hurt by
the [physician’s] deviance, and this matter is open to a variety of interpreta-
tions” (p. 667). In this case, the prison physician denied that his failure to
timely diagnose and treat the inmate’s medical problems was the cause of any
injury.
Denial of victim was manifested in 15 (7.4%) doctors’ claims when they
argued that though their actions did lead to a negative health outcome, it was
an acceptable or possible consequence in the occasion in question. Here, jail
and prison physicians matter-of-factly asserted that health care complica-
tions result from the blameworthy behavior of inmates, not from inadequa-
cies of the correctional medical staff. For example, doctors posited that they
should not be held liable for health-related complications resulting from
inmate-on-inmate assaults. Such was the case in Sherrod v. State (1997),
where an inmate in the Nebraska prison system suffered a serious injury
when he was beaten with a steel rod by his cellmate. Although the inmate
received some health care, the prison doctor did not diagnose the seriousness
of the injury, meaning that therapy and treatment was not as comprehensive
as it could have been. A definitive diagnosis only occurred after the inmate
was released from prison.
Referring to Table 3, we classified 33 (16.3%) of the doctor’s responses
under the heading of condemnation of condemners. Here, the principal
modus operandi was to challenge inmates’ allegations by emphasizing the
legitimacy gap that exists between the doctor and the inmate. Doctors simply
portrayed themselves as honorable, learned professionals, and prisoners as
untrained lay persons; hence, physicians claimed that inmates were attempt-
ing to manipulate the correctional health care system by disagreeing with the
physicians’ professional medical judgment. This occurred in Proffitt v.
Prison Health Services (PHS) (1996), in which an orthopedic specialist
determined that a prisoner needed surgery to remove pins and screws in her
knee for her femur bone to heal properly. The prison medical director gave
the surgery a low priority, which had the effect of delaying the surgery for
more than 6 months. As a result, the inmate was released before the surgery
occurred. The central allegation raised by the inmate was that PHS delayed
the surgery to save money. PHS argued that prison physicians assessed the
treating physicians’ recommendations and determined that the surgery was
not an emergency and could be put on the nonemergency schedule. Indeed,
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the surgery had been scheduled, but the inmate was released before it was
performed. By condemning the prisoner as an untrained lay person who
dared to question the scheduling decision, PHS attempted to “shift the focus
of attention from [their] own deviant acts to the motives and behavior of those
who disapprove[d]” (Sykes & Matza, 1957, p. 668). This rationalization jux-
taposes the prisoner’s disagreement with the prison doctors’ professional
judgment, calling into question the prisoner’s competence. “By attacking
others, the wrongfulness of [the prison physician’s] own behavior is more
easily repressed or lost to view” (p. 668).
A small number of doctors (5%, n= 10) enlisted what Sykes and Matza
(1957) would call an appeal to higher loyalties (see Table 3). Here, the indi-
vidual would portray the negative outcome as a choice between the lesser of
two evils. In effect, correctional physicians claimed that this outcome had to
be accepted to protect some larger professional or societal commitment.
Some of these cases involved the doctors attempting to uphold the moral
authority of the state by forbidding the inmate to go on a hunger strike. For
example, in Thor v. Superior Court (Andrews) (1993, p. 384), an inmate in
the California Department of Corrections refused to be fed and went on a
hunger strike. The prison physician sought a court order to force-feed the
inmate, arguing that the state had a moral duty to preserve life. The Supreme
Court of California ruled that there was “no countervailing state interest in
the preservation of life sufficient to sustain a duty on the part of [the prison
doctor] superseding the right [of the prisoner] to refuse unwanted medical
treatment.” Notice that the prison physician disavowed the rights of the pris-
oner while according more value to societal norms he obviously “held to be
more pressing or involving a higher loyalty” (Sykes & Matza, 1957, p. 669).
In other situations, medical officials may appeal to higher loyalties by
claiming that their course of action is directed toward achieving a higher
societal purpose, such as the desire to reduce drug addiction. Indeed, medical
officials who work in prisons are taught that custody and security are the
most important variable (Fleisher & Rison, 1997, p. 328) and that they must
suspect feigned illnesses because prisoners are “skilled in manipulation and
deceit” (Vause, Beeler, & Miller-Blanks, 1997, p. 62). This issue arose in
Austin v. Warden (1996), in which an inmate had been taking antiseizure
medication for epilepsy for 20 years. Because the prison doctor never saw the
inmate have a seizure, he testified that he believed the inmate was faking an
illness; therefore, the prison doctor stopped the inmate’s medication. The
doctor removed the medication to appeal to the greater societal good of
reducing drug addiction. According to the doctor, it is “not unusual for an
inmate to feign bizarre behaviors in order to obtain prescriptive medications,
or simply to draw attention to one’s self” (p. 3). In these cases, correctional
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physicians apparently had no moral quandary denying prescription medica-
tion to prisoners, appealing to the moral superiority of the state to fight drug
addiction.
Surprisingly, the data in Table 3 show that several of the doctors simply
admitted blame (9.4%, n= 19). This course of action is what Scott and
Lyman (1968) referred to as an apologia. These authors argued that some
individuals, when confronted with evidence of their wrongdoing, will admit
fault and accept responsibility. These physicians generally pursued a
face-saving course of action that points to some positive lessons or repen-
tance that has resulted from the situation. In the case of the doctors analyzed
here, this manifested itself in ways such as in Matter of Napoleon (1997),
where the prison doctor had his license to practice medicine revoked.
Admitting some wrongdoing, the doctor sought indemnification from the
state and from the Attorney General’s office. A New Jersey court denied the
doctor’s request, saying that while practicing correctional health care, the
doctor engaged in professional misconduct, gross malpractice, gross negli-
gence, and gross incompetence, including acts that evidenced the intentional
and deliberate infliction of unnecessary pain on inmates. In this case, the
prison physician asked the government to provide a vigorous defense on his
behalf, even though the doctor accepted some responsibility for his profes-
sional shortcomings.
Prisoners’ causes of action. Referring now to the legal basis for the plain-
tiffs’ claims, we observed that 50 (26%) of the 189 doctors were held liable
for at least one cause of action. Of these, 19 (38%) included medical malprac-
tice actions, 12 (24%) were medical negligence lawsuits, 11 (22%) were law-
suits pursuant to 42 U.S.C. § 1983, 4 (8%) represented writ of habeas corpus
actions, 2 (4%) revolved around writ of certiorari actions, and 2 (4%) were
deemed other types of lawsuits.
Although there were 189 physicians sued, our sample contained only 121
court cases. This is a result of the fact that multiple physicians within a single
case were often named as defendants. Table 4 shows that within the 121
cases, there were 244 causes of action pursued, including 93 (38%) medical
malpractice actions, 79 (32%) lawsuits pursuant to 42 U.S.C. § 1983, 24
(10%) medical negligence lawsuits, 17 (7%) habeas corpus actions, 5 (2%)
writ of certiorari actions, and 26 (11%) other types of lawsuits.
Data in Table 4 reveal that of the 244 causes of action, plaintiffs prevailed
36% of the time (n= 88).7Conversely, defendants prevailed 53% of the time
(n= 130).8When plaintiffs prevailed, they did so most frequently in medical
malpractice actions (38%, n= 33). In one such case, Jacques v. State (1984),
rhinoplasty was performed on an inmate who was discharged to the general
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inmate population without antibiotics. A week later, the inmate developed a
serious infection in the nasal/eye area. At that point, he received antibiotics,
but he was hospitalized with complications and pus had to be surgically
drained from the infected areas. As a result, the inmate suffered additional
pain, underwent subsequent surgery, and was permanently scarred under his
left eye. The inmate brought a medical malpractice action against the prison
physician for failing to prescribe antibiotics immediately after surgery. The
Court of Claims of New York held that “failure to use antibiotics post-surgery
constituted medical malpractice” (p. 466).
Although it is difficult for prisoners to win inadequate medical care law-
suits filed under 42 U.S.C. § 1983 (Vaughn & Carroll, 1998), Table 4 reveals
that plaintiffs prevailed in 31% (n= 27) of these claims. In Santiago v. Leik
(1993), for example, an inmate with amyotrophic lateral sclerosis (ALS) was
not properly fed or given assistance with his living arrangements. The Wis-
consin Court of Appeals reversed the dismissal of the inmate’s Section 1983
lawsuit, saying that the prison doctor did not take proper measures to feed the
severely ill inmate who could not eat on his own. Likewise, in Ennis v.
Dasovick (1993), an inmate who wore glasses for 28 years was denied a new
pair of eyeglasses by prison medical officials. The North Dakota Supreme
Court reinstated the inmate’s Section 1983 lawsuit, saying that the doctor
may be liable for refusing to provide new eye glasses to the inmate at the
state’s expense.
When plaintiffs filed medical negligence lawsuits (see Table 4), they pre-
vailed in slightly less than one fourth of their claims (24%, n= 21). Such was
the case in Tomcik v. Ohio Department of Rehabilitation and Correction
(1991), where a female inmate was given a “cursory” breast examination by a
prison doctor—for 10 seconds, he pressed “lightly upon each breast” and
found no lumps. The next day, when the inmate examined her own breasts,
she found a lump the size of a pea. She submitted daily requests to be exam-
166 THE PRISON JOURNAL / June 2000
TABLE 4: Prisoners’ Causes of Action (
N
= 244)
Overall Plaintiffs Prevailed
Type of Claim
n
Percentage
n
Percentage
Malpractice actions 93 38 33 38
42 U.S.C Section 1983 79 32 27 31
Medical negligence 24 10 21 24
Writ of habeas corpus actions 17 7 4 4
Writ of certiorari actions 5 2 3 3
Other 26 11 0 0
Total 244 100 88 36
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ined further by prison medical officials, but was not seen by a nurse until 3
weeks later. Three months later, the inmate was transferred to another correc-
tional facility, where she was examined by medical personnel who found a
golf ball–sized tumor in her breast. Shortly thereafter, she underwent a radi-
cal mastectomy, in which her right breast was removed.
The inmate filed a medical negligence claim against prison medical offi-
cials, alleging that “the cancer was allowed to progress to the stage where
plaintiff was unable to utilize certain breast conserving procedures, but
instead was required to have her entire right breast removed” (p. 902). An
Ohio court said that the doctor rendered “substandard medical care” by
“merely” pressing on the “plaintiff’s breasts,” and ruled that “such acts
would not necessarily disclose lumps in breasts” (p. 903). Moreover, the
court found that the tumor was present and “quite small” when the doctor ini-
tially examined the inmate, and that the “plaintiff preferred the breast con-
serving lumpectomy procedure”; that procedure, however, was “not feasi-
ble,” because when the tumor was finally diagnosed, its size required more
invasive surgery (p. 904). Awarding the inmate $85,000 in damages, the court
concluded that the plaintiff suffered physical pain, emotional suffering, per-
manent damage, and disfigurement, and that her life expectancy was reduced
by 15%.
When defendants prevailed, they were most successful in medical mal-
practice actions, winning 46% (n= 60) of these cases.9A typical case was
Steedley v. Correctional Medical Services (1998), in which an inmate tested
positive for tuberculosis. Evidence showed that the inmate’s prison work
assignment was to clean the infirmary where inmates with active tuberculosis
were housed. The prison doctor testified that only a person with a compro-
mised immune system would have contracted tuberculosis in the infirmary. A
Delaware court dismissed the case because the inmate was unable to link his
tuberculosis with unacceptable medical care performed by the prison
physician.
As mentioned, previous research shows that it is difficult for plaintiffs to
win inadequate medical care lawsuits litigated under 42 U.S.C. § 1983
(Vaughn & Carroll, 1998). The present analysis reveals that defendants won
40% (n= 52) of the state court cases litigated pursuant to Section 1983. An
illustrative case was Montanez v. Questcare (1996), in which an inmate with
diabetes in the Alabama prison system disagreed with the course of health
care that was prescribed by the prison physician. The inmate’s lawsuit was
dismissed, even though the doctor refused to alter his course of medical treat-
ment to meet with the inmate’s satisfaction.
Defendants also won 13 cases (10%) litigated under a writ of habeas cor-
pus. In recent years, the U.S. Congress and U.S. Supreme Court has made it
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more difficult for inmates to win cases pursuant to habeas corpus petitions
(Clear & Cole, 2000). In Roberson v. Warden (1996), for example, a prisoner
in Connecticut passed blood in his urine and experienced urinary tract dis-
comfort. The prison physician conducted numerous diagnostic tests, but was
unable to identify the cause of the inmate’s ailment. The Connecticut Supe-
rior Court dismissed the inmate’s petition for a writ of habeas corpus, saying
that the “Department of Corrections is now and will continue to provide ade-
quate medical care” to the inmate (p. 1).
REGULATORY SOCIAL CONTROL
OF JAIL AND PRISON PHYSICIANS
Correctional physicians implicated in inmate litigation were cross-refer-
enced to the 16,638 Questionable Doctors Disciplined by State and Federal
Governments (Wolfe et al., 1998) to determine if they have had any formal
action taken against their medical license. Of the 189 prison doctors identi-
fied in the case law analysis above, we were able to definitively determine,
using complete first and last names, that 14 had some form of formal action
taken against their license in the years since 1987. In three additional cases,
we were able to locate an instance of licensure action in the sourcebook that
was taken against a doctor with the same last name and first initial as one of
the doctors from the case law analysis. In each of these three cases, a process
of cross-referencing the documented facts of the two or more hearings led us
to conclude that the actions were most likely taken against the same person.
This exercise leads us to conclude that roughly 9% (n= 17) of the 189 doctors
named in the medical misconduct case law analysis also had some form of
licensure action taken against them between 1987 and 1998. As such, our
analysis reveals a higher degree of disciplinary sanction taken against prison
physicians (9%) than physicians who practice in the free world (2.4%)
(Wolfe et al., 1998, p. 5). Moreover, during this 11-year time period, these 17
doctors had a total of 30 actions taken against their licenses by one of the fol-
lowing regulatory entities: a state medical board, the DEA, the FDA, or the
U.S. Department of Health and Human Services. For more than 75% (n= 13)
of these doctors, we were able to determine that the licensure action resulted
from behaviors unrelated to the court ruling in which we identified their
names. Thus, the correctional medical lawsuit filed by prisoners had little
bearing on physicians’ licensure actions.
In 27 of the 30 (90%) actions, the sourcebook data revealed that the
licensure sanctions were pursued by a state medical board. The remaining
actions originated from the U.S. Department of Health and Human Service
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investigations into Medicare violations (n= 2) or from a DEA investigation
into a prescription drug dispensing violation (n= 1).
We note that the above-mentioned 30 licensure actions resulted from a
wide range of alleged offenses. In particular, when we applied the 18-cate-
gory coding system provided in the sourcebook to the accompanying narra-
tives, we were able to identify 48 different legal or ethical offenses that led to
these 30 licensure actions. The most common reason for the licensure action
was that the regulatory entity became aware that the doctor in question had
been subject to a criminal conviction. This was the case for 9 of the 30
actions. Several of the doctors were convicted of serious, violent crimes. For
example, there was the Ohio doctor who was convicted of aggravated murder
and abuse of a human corpse. The year before the conviction, an Ohio court
ruled that he was not liable in a medical malpractice claim. Specifically, the
court in Perotti v. Ohio Department of Rehabilitation and Correction (1989)
supported the doctor’s decision to deviate from a free world physician’s order
that the inmate be prescribed narcotic-based analgesics to alleviate orthope-
dic pain in his foot. The Court of Appeals of Ohio ruled that the inmate had
“suffered no ill effect” from the prison’s failure to administer the exact pain
medication prescribed (p. 177), and agreed that a desire to “maintain security
within the institution and prevent drug addiction among inmates” (p. 176)
superseded administering “habit-forming drugs” to the inmate.
In our cross-referencing, we also found a Tennessee doctor who was con-
victed of first-degree sexual abuse against a nonpatient, and a California doc-
tor who was convicted of a drunk driving charge. Several doctors also were
convicted on drug charges. For example, there was a California doctor who
was convicted of drug offenses on two separate occasions—once for illegally
dispensing prescription substances to an addict, and later on a possession
charge. There was also a Georgia doctor who was first convicted in 1988 on a
single charge of illegally dispensing controlled substances, and in 1994 was
convicted of 15 counts of distributing and dispensing controlled substances
for other than legitimate medical purposes and 40 counts of aiding and abet-
ting the same. Ironically, a 1998 Georgia court ruling found him not liable in
an action alleging that he refused to dispense treatment and medications to an
inmate who was suffering from a painful foot injury. That case, Cantrell v.
Thurman (1998), involved a jailed prisoner who injured his foot, and the
sanctioned doctor diagnosed the injuries as two broken toes, concluding that
“there was no treatment for plaintiff’s condition” (p. 418). The jail doctor
saw the prisoner five different times and administered 600 mg of ibuprofen;
however, the physician performed no blood tests, no X rays, and did not pre-
scribe antibiotics. The prisoner developed a fever of 107°, complained of
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severe foot pain, and saw his foot swell and turn red, blue, purple, and black.
Because of his deteriorating condition, jail officials took the prisoner to the
hospital, where he was diagnosed as a diabetic with gangrene. Several sur-
geries were performed to save the foot from amputation, but the prisoner suf-
fered severe tissue damage, the amputation of several toes, and remained per-
manently disabled. In the prisoner’s medical malpractice lawsuit, the Court
of Appeals of Georgia affirmed the trial court’s grant of summary judgment
to the defendant, saying that he received treatment from the doctor and jail
nurses on 13 occasions.
The most serious property offense conviction was handed down to a Penn-
sylvania doctor, who in 1996 was convicted of fraud when it was found that
he was exploiting maternal and child health services block grants to defraud
the Medicare system of large sums of money. This doctor was one of several
defendants in Simons v. State Correctional Institute (1992). In that case, a
prisoner developed Hodgkin’s disease while he was incarcerated, and
claimed that the physicians who provided medical care did not appropriately
diagnose and treat his cancer. Without commenting on the merits of the case,
the Commonwealth Court of Pennsylvania transferred the prisoner’s lawsuit
to the proper jurisdiction.
In seven cases, the licensure action in question resulted from an act of
information sharing, that is, one regulatory agency was notified of a disci-
plinary action of another state or agency and thus decided to implement their
own sanctions. These actions included federal actions against doctors who
were sanctioned by the U.S. Department of Health and Human Services for
abusing the Medicare/Medicaid system. For example, there was the New
York doctor—excluded from participating in the Medicare/Medicaid sys-
tem—who was sued by an inmate for performing unnecessary surgery. In
that case, Rivers v. State (1989), a prison physician diagnosed an inmate with
a left inguinal hernia and recommended surgery. The inmate was transferred
to a free world physician, who contracted his services to the Department of
Correctional Services to perform surgeries. Although the inmate’s medical
records indicated a left inguinal hernia, the admitting records indicated that
the diagnosis was a right inguinal hernia. The contractual physician testified
that he never physically examined the patient, but once the inmate was
unconscious, he noticed a “large left hernia bulge, which was obviously visi-
ble to the naked eye” (pp. 969-970). Nevertheless, according to the contrac-
tual physician, he was “forced to proceed . . . [and ignore the fact that the left
was there] . . . with the right . . . inguinal repair because [those] records [were]
available—he had signed the consent for the right inguinal hernia and the
admission record stated right inguinal hernia” (p. 970). Evidence showed
that the prison physician and contractual physician did not consult about the
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inmate’s condition at any time, nor were the inmate’s prison medical records
forwarded to the contractual physician for the operation.
A hearing committee of the New York State Board for Professional Medi-
cal Conduct found that the contractual physician “did not properly examine
[the prisoner], that he did not obtain an adequate medical history, and that he
did not properly evaluate [the prisoner’s] medical condition prior to perform-
ing surgery....[The doctor] failed to perform a left inguinal repair and sub-
jected [the prisoner] to unnecessary surgery in the right inguinal area.” As a
result, the Board recommended that the doctor’s “license to practice medi-
cine in the State of New York be revoked for his actions in this and other
cases” (Rivers v. State, 1989, p. 970).
In another case, an anesthesiologist had his license either restricted or
revoked by three separate state medical boards after a series of charges that
he repeatedly delivered substandard care. The doctor retained his baseline
license to practice medicine, took a job in a Wisconsin prison, and was sued
again for improperly prescribing medications. This particular case, Munroe v.
McCaughtry (1997), involved an inmate who suffered atopic numular
eczema, a skin disease that can be successfully treated with specific medica-
tions and Dove soap. The prison doctor refused to provide the inmate with
Dove soap, prescribing instead medications that “gave [him] chemical burns
and caused the loss of pubic hair” (p. 1). Evidence showed that the prison
doctor was hired by the prison even though he had not passed his state medi-
cal board examination. Correctional physicians also refused to approve sur-
gery for the inmate to remove a “mona (lipoma)” (p. 1). By denying this care,
correctional medical personnel exacerbated the inmate’s “skin disease,
thereby causing his skin to breakout in large rashes and sores, causing him
physical and emotional suffering” (p. 1).
The inmate sued, but the Court of Appeals of Wisconsin ruled that an
expert witness was necessary to establish that medical officials breached
their duty to adhere to the appropriate standard of care. The court concluded
that “without an expert witness, [the inmate] would not be able to show that
his eczema skin condition was worsened by the defendant’s acts” (p. 2). This
case also speaks to the principle of less eligibility, because courts rule an
inmate must have an expert witness to show if a prison physician breached
the appropriate standard of medical care. Yet prison systems are not required
to appoint an expert medical official to an indigent inmate. This is significant
because most inmates have no way of paying for medical expert witnesses
and are far removed from the professional network of colleagues that would
make the best medical experts available to them.
The sourcebook also contains a broad offense category termed “profes-
sional misconduct.” Specifically, this category “includes a variety of offenses
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that are more serious than the violation of a professional rule but do not fit
into any other [16 specific] categories” (Wolfe et al., 1998, p. 90). The
licensure narratives from the 30 actions in question revealed five different
instances of professional misconduct. These included cases of doctors per-
forming unnecessary or inappropriate procedures, breaching doctor-patient
confidentiality, selling drugs or devices for personal gain, and sexual abuse of
a nonpatient.
In three of the cases, the licensure action involved the doctor’s failure to
comply with a professional rule (e.g., failure to report a disciplinary action of
another state, failure to meet continuing medical education requirements, or
failure to respond to a board order). We identified three cases in which the
doctor was accused of “overprescribing or misprescribing drugs” and three
cases alleging “substandard care, incompetence, or negligent care.” Two
doctors were accused of each of the following offenses: practicing without a
valid license, or the offense of “insurance, Medicare, or Medicaid fraud.”
Finally, one doctor was implicated in each of the following offenses: failure
to comply with a previous board order, overcharging, and substance abuse.
One Illinois physician, who was among those disciplined for practicing
medicine without a valid license, was also a defendant in Moss v. Miller
(1993). This case was brought forth by an inmate who was severely beaten by
a group of inmates, causing his eyes to swell shut. The injured inmate was
examined by two correctional physicians and an optometrist, who testified
that they were aware of his serious injuries, including the possibility of an
orbital fracture or blow-out fracture of the eye socket.10 Prison physicians and
the optometrist examined the inmate 10 times, and arranged for X rays and an
eye patch. Although the inmate reported that he experienced double vision
and his eye deviated 20 diopters upward and outward, no referral was made to
an ophthalmologist for more than 2 months.
The ophthalmologist diagnosed the inmate with a blow-out fracture, find-
ing that he lost about 50% of his ability to look down and his eye was turned
outward 25%; his double vision remains a permanent disability. In the
inmate’s lawsuit, evidence showed the injuries might have been less severe if
he had been referred to an ophthalmologist and been treated within 14 days
after the injury. A jury found that the optometrist violated a national standard
of care, awarding the inmate $75,000. The jury did not find the jail physicians
liable, in part because their attorneys argued that they were obligated to stan-
dards of care commonly used by prison doctors practicing in correctional
facilities. On appeal, an Illinois court reversed and remanded a new trial on
the claim against the two correctional physicians, saying that “reversible
error took place because the [jury] instructions indicated a [local] standard of
care was required” (p. 1052), instead of a national standard. Finding that the
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physicians engaged in gross negligence (p. 1054), the court concluded that
“evidence established that [the inmate] suffered a severe injury which could
cause him problems the rest of his life. There was testimony of double vision,
disfigurement, and dizziness, all of which interfere with everyday activities”
(p. 1055).
The narratives contained in the Public Citizen sourcebook suggest that the
various regulatory/licensure entities generally took the above-mentioned
allegations seriously. Nine of the doctors had their license to practice medi-
cine revoked. Another three were forced to surrender their license, and two
were denied renewal on an expired license. Lesser sanctions (often handed
down together) included five license suspensions, one emergency suspension
of a license, nine orders of probation, seven fines, two orders for the individ-
ual to be excluded from the Medicare program, one order to disclose a
board-imposed order to their employer and patients, and one suspension of
the authority to prescribe prescription substances. There were, however,
some very precarious rulings handed down by the acting agencies. Most
notably, after rendering a patient brain dead due to a failure to diagnose the
individual of meningitis, the Texas Board of Medicine imposed a licensure
restriction decreeing that the doctor “shall practice only in a facility of the
Texas Department of Criminal Justice” (Wolfe et al., 1998, p. 46). One year
later, this same doctor found his way into our case law analysis after an
inmate brought a malpractice claim against him after an alleged failed diag-
nosis resulted in the need to surgically remove the inmate’s right testicle. In
that case, Johnson v. Chaney (1996), an inmate hurt his groin and testicles
while working in the Texas prison system. The staff physician in question
treated the inmate for his injuries for 10 days. The inmate claimed the doctor
provided inadequate medical care because he refused to refer him to a spe-
cialist at a free world hospital. As a result of the inadequate treatment, the
inmate’s right testicle was surgically removed. The inmate sued the prison
doctor for medical negligence. Affirming the district court’s dismissal of the
inmate’s lawsuit, the Court of Appeals of Texas ruled that the inmate suffered
no compensable injury due to the “treatment or lack of treatment he received
from” the doctor (p. 4). This case also highlights the principle of less eligibil-
ity because the prison doctor was deemed not competent to practice in the
free world, but suitable to work with inmates.
CONCLUSION
Anecdotal reports that originate from correctional administrators, prison-
ers’ rights advocates, and the media have raised the suspicion that correc-
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tional physicians deliver substandard care, exhibit diminished levels of pro-
fessional competence, and engage in a host of unethical behaviors.
Moreover, the underclass status of the available patient pool, when coupled
with the poor working environment, leads to the suspicion that there is not
much competition within the medical profession to seek out and procure jobs
as correctional physicians. Instead, it is safe to assume that these jobs are
among the least desirable ones that a doctor could obtain. Using the principle
of less eligibility, we hypothesized that this situation would result in low lev-
els of professional competence among correctional physicians. We turned to
judicial records as the first way to assess this hypothesis. In particular, we ref-
erenced civil actions filed by prisoners in state courts seeking monetary dam-
ages and/or injunctive relief for inadequate correctional health care as a
proxy measure of the level and nature of judicial social control directed
toward correctional physicians’ professional competence. Our analysis of
121 court rulings, involving 189 doctors and 202 legal claims, provides con-
siderable evidence of unethical behavior and professional incompetence
among correctional physicians.
The case law analysis suggests that prisoners were subject to a wide vari-
ety of substandard health care practices. Half of the civil actions analyzed
alleged poor or improper care. In 20% of the cases, inmates claimed that they
were completely denied care by a correctional physician. Other reasons for
pursuing civil litigation included faulty diagnoses (13%), delayed care (6%),
exposure to unethical or inhumane care (4%), being treated by unqualified or
unlicensed physicians (3%), being subject to unwanted or unauthorized
forms of care (3%), and a doctor’s forcible response to a prisoner’s hunger
strike (1%).
We found evidence that the above-mentioned actions/inactions on the part
of correctional physicians resulted in a variety of negative health outcomes
for prisoners. Most disturbingly, we documented 19 prisoner deaths. In
15.3% of the cases, prisoners suffered permanent physical disabilities as a
consequence of the doctors’ actions/inactions. Permanent loss in quality of
life was the alleged negative health outcome in 17% of the cases, whereas in
58% of the cases, prisoners claimed to suffer some form of temporary loss in
quality of life.
It is clear that correctional physicians rarely accept responsibility for the
above-mentioned negative health outcomes. In fact, less than 10% of the doc-
tors accepted full responsibility for their behaviors, and subsequently offered
some form of apologia (Scott & Lyman, 1968). Instead, in the vast majority
of the cases, we found that doctors attempted to justify or minimize their
blameworthiness. Drawing on Sykes and Matza’s (1957) techniques of neu-
tralization, we concluded that the most common physician response was
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denial of responsibility (36.6%). Other responses were categorized as denial
of injury (25%), condemnation of condemners (16.3%), denial of victim
(7.4%), and appeal to higher loyalty (5%).
The content of the state court rulings leads us to conclude that incompe-
tent doctors were being subject to only marginal levels of punitive judicial
social control. Courts recognized a variety of legal claims, including mal-
practice actions (38%), actions pursuant to 42 U.S.C. Section 1983 (32%),
medical negligence (10%), writ of habeas corpus actions (7%), and writ of
certiorari actions (2%). We observed that only 26% of the doctors were held
liable for at least one legal claim, and plaintiffs prevailed in only 36% of
cases. In fact, there was no one form of legal claim that resulted in legal vic-
tory for more than half of plaintiff litigants.
Turning to regulatory social control as a means of assessing the compe-
tence of correctional physicians, our analysis suggests that correctional phy-
sicians who are sued in state courts experience higher rates of disciplinary
actions on their medical license than physicians at large. In particular, we
found that 9% (n= 17) of 189 jail and prison doctors who were subject to
judicial social control also experienced some form of state and/or federal reg-
ulatory social control. This represents almost four times the level of state
and/or federal regulatory social control that is experienced by free world phy-
sicians (2.4%). These data support our hypothesis that correctional physi-
cians possess limited employment opportunities because of questionable
clinical qualifications and professional competence. Highlighting the princi-
ple of less eligibility, the data here show how substandard doctors practicing
within correctional health care systems deliver poor quality medical care to
prisoners (see also Vaughn, 1999; Vaughn & Smith, 1999a, 1999b).
There are several shortcomings to our methodology that limit our results
and point to the need for further research. Because there exists no national
sampling frame of correctional health care physicians, we identified physi-
cians through lawsuits filed by prisoners in state courts.11 Although this anal-
ysis was valid, enlightening, and produced a number of correctional health
care physicians, a more comprehensive sampling frame is warranted.
Clearly, our reliance on prisoner lawsuits in state courts represents one of the
most conservative sampling frames from which to assess professional com-
petence or misconduct among correctional physicians. Because research has
shown that prisoners are more likely to sue under federal law (Ross, 1997),
future researchers should examine lawsuits filed in federal court under Title
42 U.S.C. Section 1983. Moreover, using correctional physicians identified
in lawsuits as the sampling frame might bias the results, because these physi-
cians may be poorer quality than other correctional physicians who are never
sued.
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We are also aware of the problems associated with published and unpub-
lished court cases. Courts that decide litigation determine if the case will be
officially published or released online for dissemination. In some instances,
courts do not disseminate their decisions at all, rendering a comprehensive
examination of litigation impossible. Moreover, most cases reported and/or
available online are appellate court decisions, and legal scholars know that
most trial outcomes that are not appealed are never reported, meaning that
they are unavailable for scrutiny.
In addition, not all cases of medical abuse are litigated, because the most
egregious deviations from acceptable medical protocols are settled. For the
most part, settlements are not publicized, and frequently the settlement
agreement stipulates no admission of wrongdoing and demands silence from
both parties. Moreover, most of the prison medical care cases that are liti-
gated are dismissed by the trial court, and no further action is taken. Rarely
do inmates have the financial wherewithal to aggressively litigate their
claims, reducing the chance of success and increasing the odds of dismissal
because they cannot afford expert witnesses, filing fees, and the costs associ-
ated with civil litigation.
Perhaps most problematic is that the vast majority of negative health out-
comes that occur at the hands of correctional physicians result in no court
action at all. Marquart, Merianos, Cuvelier, and Carroll (1996) argue that
socioeconomic conditions and lack of preventative health in the free world
result in the poor state of health among prisoners once incarcerated. The
chronic poor health of these individuals, coupled with the fact that they rarely
receive high quality medical care, may leave them with low expectations of
their health and their medical care providers. This leads to a scenario where
prisoners are less likely to draw causal inferences that subsequent negative
health outcomes that occur while incarcerated are attributable to the actions
or inactions of correctional physicians.
Broadly speaking, correctional facilities are oppressive, unhealthy, and
dangerous environments. During their incarceration, prisoners grow accus-
tomed to and even expect pain and suffering (Vaughn & Smith, 1999a).
When they suspect a negative health outcome is attributable to correctional
physicians, there are a variety of factors that may lead them to avoid court
actions. State and federal law has recently made it more difficult for prisoners
to sue (Bennett & del Carmen, 1997). Although some prisoners experience
little change in their health or leave the institution healthier than when they
arrived (Marquart, Merianos, Hebert, & Caroll 1997), other prisoners may
simply accept a negative health outcome as part of their imprisonment expe-
rience. Given that correctional (Stohr & Zupan, 1992, p. 88) and medical
(Vaughn & Smith, 1999a) staff have difficulty identifying prisoners’ needs,
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prisoners may grow to expect little from the correctional health care system.
Prisoners might decide that a court action is a fruitless or unnecessary course
of action (Belbot & del Carmen, 1991).12 They may fear that formal litigation
might result in additional negative health outcomes at the hands of custodial
or medical officials. As such, future research must find innovative ways to
collect data on the behaviors of correctional doctors that does not rely on
such formal and prolonged form of documentation and bureaucratic action.
Similar reliability concerns can be raised with respect to the regulatory
social control data we used. Our cross-referencing efforts were limited by the
courts’ inconsistencies in providing complete names for physicians named in
the lawsuits. In many jail and prison medical cases, there was no name at all
included in the court’s ruling; in others, only a last name appeared; and in
other cases, a last name with a first initial was included. Although matches in
last names often led us to suspect that a physician might be represented in
both data sets, it was only where the facts of both data sets matched up that we
included the individual in the sample of doctors who had been subject to reg-
ulatory social control. This conservative matching philosophy undoubtedly
resulted in false negatives.
We also suspect that the sourcebook we relied on, 16,638 Questionable
Doctors Disciplined by State and Federal Governments (Wolfe et al., 1998),
represents an incomplete data source on state and federal regulatory actions
against practicing physicians. Our best evidence of this occurred in a court
case that specifically documented a correctional physician’s license revoca-
tion by the state medical board. When we referenced this physician’s name in
the sourcebook, we found no documentation of revocation. We have no way
of knowing how many more omissions of this sort exist in this data source.
Certainly, oversight, miscommunications, and paperwork errors will
result in the occasional omission from any data set. There are much larger
concerns with documenting licensure action against physicians, however,
because they possess a large and very powerful political lobby that spends
lavishly and works diligently to limit the amount of publicly available infor-
mation on licensure actions (Wolfe et al., 1998). If the alleged or resulting
actions do not appear in the public record, there is no chance that they will
end up in the Public Citizen Health Research Group data set. Moreover, if a
licensure action is appealed, a course of action that can result in a
decade-long bureaucratic backlog, the action will not appear in the data set
until a final disposition is rendered.13
In addition, the regulatory actions documented in the Public Citizen
sourcebook were derived from a limited number of regulatory entities. If a
regulatory action was not initiated, successfully adjudicated, and reported by
a state medical board, the DEA, the FDA, or the U.S. Department of Health
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and Human Services, it did not appear in the sourcebook. Obviously, there
are a wide variety of improprieties that do not fall under the jurisdiction of
these four regulatory entities, meaning that the sourcebook is not a complete
repository of physician licensure action (Cagle, Martinez, & Richardson,
1999).14
Looking ahead, more research needs to be conducted on physicians who
work in correctional facilities. We must develop creative and more reliable
ways to more accurately assess the quality of care and competency of physi-
cians who practice in correctional settings. Despite spending billions on cor-
rectional health care, we know very little about the men and women who
work in this field.15 This article raises profound ethical questions about dis-
proportionately staffing correctional health units with physicians who have
been disciplined for misconduct. Equally scandalous is the medical commu-
nity’s complicity in placing sanctioned physicians in correctional health set-
tings, and correctional personnel within federal, state, and local governments
who refuse to document and/or recognize that a problem exists. Because
health care must be constitutionally provided to prisoners (Estelle v. Gamble,
1976), the problem of questionable doctors practicing in correctional sys-
tems will only grow as correctional populations continue to expand and as
medical inflation consumes a larger part of corrections’ budgets.
NOTES
1. Sykes and Matza (1957) settled on a series of five generic “techniques of neutralization”
that they said were likely to be enlisted by juvenile delinquents: denial of responsibility, denial of
injury, denial of victim, condemnation of condemners, and appeal to higher loyalties.
2. Physicians who work in jails and prisons.
3. Although each case in our sample was pursued by a lone plaintiff (i.e., prisoner), any
given case may name multiple defendants (i.e., doctors), be based on prisoner’sassertions that he
or she was subject to behaviors that constitute multiple legal claims (e.g., denial of care, poor or
improper care, faulty diagnosis), and/or the court may recognize multiple causes of action (e.g.,
medical malpractice, medical negligence, writs of habeas corpus). Each of these factors provide
a potential unit of analysis within the context of this article. As such, we note that these 121 cases
named 189 doctors. Of the 189 doctors, 6 had more than one legal claim (e.g., an inmate alleged
that Doctor X was guilty of both a faulty diagnosis and subsequent poor care), thus yielding a
total number of 202 legal claims. The court often decided that a single legal claim provided
grounds for multiple causes of action. For example, the court could rule that a defendant doctor’s
failure to diagnose a cancerous condition represented grounds for both a medical malpractice
and a Section 1983 action. Thus, there were a total of 244 causes of action heard within this sam-
ple of 121 cases. The reader is cautioned that sample sizes will change as we shift the forthcom-
ing discussion from one unit of analysis to another. When discussing the aspects of prisoners’
allegations or the doctors’ responses, we will focus on legal claims as our unit of analysis (N=
202). Conversely, when we summarize the legal outcomes, we will enlist formal causes of action
as the unit of analysis (N= 244).
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4. For purposes of coding, plaintiffs prevailedif they won the specific legal issues being liti-
gated; the same applied to defendants. Because many of these cases were interlocutory appeals,
the party that won the legal issue may not have ultimately prevailed in the final disposition of the
case.
5. Congress created the National Practitioner Databank to identify problem physicians, but
access is strictly limited to law enforcement agencies, regulatory bodies, and prospective health
care providers who seek to employee physicians. The general public and researchers are barred
from using the database (Cagle, Martinez, & Richardson, 1999, p. 753).
6. Of the 189 physicians, 6 had 13 separate claims brought against them.
7. Plaintiffs also prevailedin four (4%) actions under a writ of habeas corpus and three (3%)
actions pursuant to a writ of certiorari.
8. In 11% (n= 26) of the legal dispositions, neither the plaintiff nor defendant prevailed.
9. Defendants also prevailed in three (2%) medical negligence actions and two(2%) actions
pursuant to a writ of certiorari.
10. “Anorbital fracture, or blow-out fracture, occurs when blunt trauma to the eye causes the
bony structure of the eye socket (orbit) to rupture” (Moss v. Miller, 1993, p. 1047).
11. According to the National Commission on Correctional Health Care (B. Jaye Anno, per-
sonal communication, February 9, 2000), there are no data and no reliable estimates on the num-
ber of physicians who work in jails and prisons in the United States.
12. This does not negate the possibility of prisoners filingfrivolous lawsuits (Fradella, 1998).
13. These and other reporting concerns are discussed at length by Dodge (1998).
14. See Gray (1992) for a complete discussion of the complexity and ineptitude of medical
social control.
15. The U.S. Department of Justice reported that “states spent nearly $2.5 billion on prisoner
medical and dental care in FY 1996 or about 12% of total prison operating expenditures”
(Stephan, 1999, p. 7). This figure does not include the cost of jail medical care.
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