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Criminal Justice Magazine
Spring 2001
Volume 16, Issue 1

Bad Medicine:
Health Care Inadequacies in Women's Prisons

By Ellen M. Barry

In early 2000, M.W. arrived at the Central California Women's Facility (CCWF) with a diagnosed brain tumor. M.W.'s test results, provided by an outside hospital, required review by a specialist to determine possible malignancy and the proper course of treatment. But the prison's skilled nursing facility, which was intended to provide the highest level of care for the most seriously ill female prisoners in the California penal system, was failing her. Twice prison staff sent her to a clinic in Fresno, but each time they forgot to bring along the test results. Finally, after a six-month delay, a neurologist saw M.W. and her test results, and found the tumor was benign. The good news was overshadowed, however, by the fact that the tumor had grown so much during the delay, intertwining with the brain stem, that surgeons were unable to completely remove it. In January 2001, she died from complications from the surgery, leaving behind a young daughter and a grieving family.

This situation is not specific to California. Inadequate medical care is a problem faced by prisoners nationwide. Although many of these medical shortfalls affect men as well as women, there are a number of issues unique to female prisoners.

As a litigator and activist, I have worked with women prisoners for more than 24 years, mostly in California. I have worked at the federal, state, and county level, and in every region and most states. My perceptions of the adequacy of health care for women prisoners are based on these personal experiences. I am also an advocate for women prisoners, who, I believe, suffer unjust and inhumane medical treatment, especially in the case of those who are pregnant or seriously ill. Although I acknowledge that there are correctional personnel who provide professional, high quality medical services, it's my experience that women prisoners are often regarded as complainers, malingerers, or drug seekers who have more psychosomatic than actual illnesses. Just as in the general population, women prisoners are assumed to have fewer "real" medical complaints than do male prisoners. In the prison setting, this can be a life-threatening assumption.

Deadly delays

It took California prison officials more than three years to respond to prisoner S.C.'s request for treatment of a clearly defined lump in her right breast. Finally, in June 1995, doctors diagnosed breast cancer; a mastectomy was performed in August. In November 1996 the cancer returned, and her other breast was removed in January. Meanwhile, she experienced severe vaginal bleeding-again, it took several years for prison officials to approve treatment, in this case a hysterectomy. Then, she noticed a lump on her neck, but despite repeated requests for a biopsy, it took six months to get the procedure, at which time the lump was found to be cancerous and was removed. She was given radiation therapy, but continues to suffer as a result of cancer that has now metastasized from the original breast cancer.

Most women enter prison or jail with significant health issues because the majority are indigent or low-income and are uninsured or underinsured and have limited or no access to health care. In addition, because women of color are dramatically over-represented in this population, there is a disproportionate prevalence of certain types of illnesses, such as diabetes, high blood pressure, sickle cell anemia, and a higher instance of undetected breast cancer. Studies indicate that 60 percent of women in prison have experienced early childhood physical and sexual abuse. Many have a history of rape and battering by spouses or significant others, some have histories of prostitution, and most have used street drugs or have had sexual partners who use intravenous drugs. As a result, there is a higher prevalence of depression, HIV, and hepatitis C in women prisoners than in the general adult female population.

Because of these risk factors, it would be logical and prudent public policy to expect that the medical care provided to women prisoners would be at the least adequate and, perhaps, preventive. Instead, there remain widespread deficiencies that have resulted in serious injury and, sometimes, death.

Pregnancy: special concerns

The specter of death is perhaps nowhere more chilling than in the case of pregnant prisoners. Although there have been improvements in the last 15 years, gross negligence and inadequacies in medical care still abound.

In 1997, for example, a prisoner in the California Institution for Women (CIW)-one of the largest such facilities in the country-went into labor over the weekend when the only available medical staff was a nurse. Though she entered the prison infirmary in active labor, the nurse strapped her to a gurney with her arms restrained. The nurse refused to assist with the birth, and the woman was herself unable to aid the infant, who was born blue and not breathing. The nurse was not able to activate the emergency breathing apparatus and called paramedics. By the time they arrived and transported the baby boy to an outside hospital, he was declared brain dead. The mother, though close to the end of her prison term, was not allowed to see the child again.

Approximately 14,000 women are in California's state prisons today. An estimated 75 percent of those are mothers and 10 percent of those have newborns. According to a 1986 report by the California Department of Health, it's estimated that about 10 percent of California's incarcerated women are pregnant at some time during their imprisonment, and 15 percent have given birth in the previous 12 months. Yet, it took a class action lawsuit, Harris v. McCarthy, No. 85-6002-WMB (MCx) (C.D. Cal. filed Sept. 11, 1985) (settlement agreement Oct. 1987), filed on behalf of California's pregnant prisoners, to get an obstetrician/gynecologist on staff at CIW. In 2000, Valley State Prison for Women (VSPW), another high-capacity California facility, had two OB-GYN doctors on staff. By midyear, one had been indicted on four counts of sexual misconduct and stripped of his duties. Today it is still the rule rather than the exception that no doctors are on duty on weekends and during evening hours.

Adding to the problem is the lack of communication between doctors in prison facilities and those at county jails. In one case, a county jail prisoner was tentatively diagnosed with pre-eclampsia, a medical problem that left untreated can have fatal consequences for both infant and mother. She was transferred to CCWF when she was five months' pregnant. Despite her high blood pressure readings-a major diagnostic signal of preeclampsia-she was not treated for the condition at CCFW until her eighth month. She was placed on bed rest for one week in the prison's skilled nursing facility, but put back on the yard the day after her highest blood pressure reading. Her fetus died in utero at nine months' gestation. The woman eventually filed a personal injury action and recently received a large monetary award from the state.

Bad medical care is not the only mistreatment. Pregnant women in county jails and in the state prison system are routinely transported to and from facilities and hospitals in restraints. Women in all stages of labor, including during delivery, are routinely shackled by the ankle to their hospital beds. (Amnesty International, in its 1999 report, "Not Part of My Sentence": Violations of the Human Rights of Women in Custody, recommends a prohibition on the use of shackles and restraints on pregnant women who are being transported, are awaiting delivery, or have just given birth.)

In addition, infants born to women in the custody of the California Department of Corrections are routinely separated from their mothers within 12 to 48 hours after birth, causing severe trauma to the mother and potentially threatening the mother-infant bond.

Sexual abuse

I have interviewed thousands of women who have reported systematic and widespread medical neglect in California prisons and jails. Women with serious and terminal illnesses have been forced to lie in their own excrement for days at a time. Some staff have deliberately disabled call buttons in the skilled nursing facility, ignoring patients' needs. Routinely, patients with metastasized cancer and AIDS and patients recovering post-operatively from major surgery are given only Tylenol 3 for agonizing pain. As founding director of an advocacy organization working with women in prison, I also worked with staff and volunteers to document many cases in which pregnant women have been refused treatment for emergencies that result in complications, miscarriages, and infant deaths. But one of the most disturbing aspects of the medical care investigations has been the prevalence of sexual misconduct by male medical and custodial staff.

The widespread nature of custodial sexual misconduct has been documented recently in investigative reports conducted by the United Nations Special Rapporteur on Violence Against Women, Amnesty International, and Human Rights Watch. Women's advocates were particularly disturbed by instances of sexual misconduct by medical personnel, who are in a special trust relationship with their patients.

In one instance, a prisoner at CCWF's skilled nursing facility reported being sexually assaulted by a male nurse when she was suffering from a recurrence of multiple sclerosis and unable to protect herself. She reported seeing the same nurse molest two other women, one of whom had suffered a stroke.

In 1998 and 1999, the nonprofit advocacy organization Legal Services for Prisoners with Children (LSPC) reported allegations by women prisoners against two prison physicians at Valley State Prison for Women (VSPW), asserting the doctors had sexually molested and fondled them. They also claimed the doctors required them to submit to intrusive and unnecessary pelvic and breast examinations when the patients had complained of head injuries or flu symptoms. Some prisoners said they felt they had to submit to the sexual advances in order to receive treatment or necessary medication. Other women reported a reluctance to seek medical treatment from these physicians. LSPC forwarded these complaints to the California Department of Corrections (CDC) over a four-year period. But it wasn't until broadcast journalist Ted Koppel of ABC's nightly news feature, Nightline, aired a segment that included interviews with prisoners, prison staff, and women's advocates that action was taken. One of the two doctors was dismissed shortly after the segment aired, though, six months passed before the second doctor was relieved of his duties. As this publication went to press, both doctors had been criminally indicted.

Women prisoners and their advocates have sought other avenues of public attention, including appeals to state legislators.

Legislative remedies

Although the majority of policy-makers still fear being labeled "soft on crime," some have acted to improve prison conditions in California. In November 2000, at the behest of women prisoners and their advocates, California State Senator Richard Polanco convened two days of onsite legislative hearings at the Valley State Prison for Women and the California Institution for Women. Carl Washington, a state representative, and Cathy Wright, a state senator, also participated. To an audience of state legislators, aides, journalists, advocates, correctional officials, and family members, 20 women currently serving time and four ex-prisoners spoke of their experiences.

The legislative hearings at the women's prisons have had a powerful effect. Following the hearings the situation concerning medical care at CCWF and VSPW worsened dramatically. Twelve women died at these two prisons in less than two months, prompting yet another legislative hearing, this time at the state capitol. Bills are now pending in the state legislature that would eliminate the highly problematic position of medical technical assistant, require accreditation of prison medical facilities, expand family visiting options, address parental rights issues of mothers in prison, and expand release options for seriously ill and dying prisoners.

These are not the first such hearings. In 1985, California prisoners who were pregnant or mothers of young children testified before a legislative panel about abusive medical conditions. Those hearings led directly to the settlement of the Harris case, filed six months earlier. They also led to the expansion of the Community Prisoner Mother-Infant Care program, which created community-based residential sentencing alternatives for mothers with infants and young children.

What makes the recent hearings particularly noteworthy is that they come at a time when the political climate in California is particularly hostile to initiatives aimed at improving care for prisoners. They come at a time when California has the greatest number of incarcerated women in the country; when the state's department of corrections has sought to severely limit or ban access by journalists to California's prisons; and after two decades of both state and federal legislative efforts to pass more punitive sentencing laws, including mandatory minimums, indeterminate sentences, the three-strikes law, and increased penalties for drug possession, sales, petty theft, and welfare fraud.

But they also come at a time when policymakers have started to concede that criminal justice policies have fallen short of their intended goal of creating a safer public environment.

Litigation

In the mid-1980s, LSPC filed three class action lawsuits on behalf of pregnant women prisoners in state prison and in county jails in northern and central California. All three lawsuits alleged seriously inadequate medical care. At the time, there were no OB-GYN doctors on staff at the state prisons. Litigation against the county jails alleged similar deficiencies in medical cases, and also expanded the litigation to address the inadequacy of treatment for pregnant substance-dependent women and the need to expand alternatives to incarceration for mothers and their infants. All three cases ended with settlements that provided unusual and effective remedies for plaintiffs. For example, in the statewide litigation, plaintiffs obtained language requiring that a skilled OB-GYN physician be hired and that a special pregnancy care unit be created for women prisoners in the later stages of pregnancy. It also called for the development of detailed protocols for the treatment of pregnant women and the creation of pregnancy health care teams responsible for each pregnant prisoner.

In the litigation against county jails, plaintiffs were able to obtain language directing the county sheriff's department to actively explore alternative placement of women with their newborns within the community, and also to develop a detailed plan for treatment of pregnant, drug-dependent women.

In 1995, women prisoners at CCWF and CIW filed a class action lawsuit, Shumate v. Wilson, No. CIV S-95-0619 WBS JFM (E.D. Cal. filed April 6, 1995) (settlement agreement Jan. 1998)), that alleged inadequate medical care at CCFW and CIW prisons. The plaintiffs were represented by LSPC and several other prisoners' rights attorneys. A settlement agreement, approved by the federal district court, Eastern Division, in 1998, resulted in a number of improvements in the provision of medical care, although every step forward was difficult and many problems remained at the close of the monitoring period. By mid-2000, plaintiffs and their lawyers decided there was nothing more to be mined from the agreement.

Since the passage of the Prison Litigation Reform Act (PLRA) in 1996, it has become substantially more difficult for women prisoners and their advocates to bring class action litigation. This may be due, in part, to the explosion of the number of women prisoners in California and the growth in power, size, and hegemony of the California Department of Corrections. In addition, federal and state government has shown marked hostility against prisoners who seek to mount constitutional challenges to their conditions of confinement.

Obviously, this problem does not lend itself to one, simple solution.

Potential remedies

The increased awareness of legislators, policymakers, and the public generally to these inequities is a significant development that will, hopefully, create the public will to improve conditions for women prisoners suffering from medical abuse and sexual assault. Some possible remedies:

o Pregnancy care: There should be a nationwide ban on the use of shackles on women prisoners in labor. It should be policy that women prisoners are allowed to stay with their newborns for a minimum of 72 hours. It should also be policy to allow women prisoners to nurse their infants when possible, or to provide expressed milk. Prisons and jails should encourage programs that provide counseling or support groups to women who have suffered miscarriages, the death of an infant, or suffer postpartum depression. Persons from the community and not correctional personnel should staff these programs. Finally, nursery programs and external alternatives to incarceration, such as mother-child care programs, should be available to women prisoners and their infants in all jurisdictions.

o Under the Prison Litigation Reform Act, women who suffer miscarriages, the death of an infant, or serious health complications as a result of inadequate medical care must comply with federal requirements to exhaust their administrative remedies. (This is, of course, true for male prisoners as well.) Most states have an administrative appeal structure that requires the aggrieved party to file a claim within a short time after the incident. In California, an administrative appeal must be filed within 15 days of the injury. It seems particularly inhumane to expect a woman who has just lost a child to focus on something as mundane as filing an administrative appeal within 15 days. Although there are other situations involving trauma, the loss of an infant is something that should generate support for change among progressive legislators. Specifically, the PLRA should be amended to waive strict adherence to the administrative appeals provision of the Act in instances where a woman prisoner has suffered a miscarriage, the death of a child, serious complications during pregnancy, or a serious or life-threatening injury or loss of sight or limbs as a result of alleged inadequate care.

o Create a national commission to investigate issues affecting women prisoners, particularly those concerning abusive medical conditions, sexual assault by guards and staff, and separation of mothers from infants and newborns. The commission should look at adopting uniform medical standards for women prisoners' health care needs in the areas of pregnancy, reproductive health, pap smears, mammograms, menopause issues, and osteoporosis, and standards governing sexual abuse and assault.

o Encourage policies that allow community medical resources and standards to become part of the treatment programs in prisons and jails, using teaching hospitals, community health clinics, and outside medical experts.

o Develop a model program to address the problem of dying prisoners in federal and state prisons that includes a community-based alternative to prison, promotes counseling (particularly peer counseling and release planning), and examines the impact of death and dying issues on the aging prison population.

Ellen M. Barry has worked with women prisoners for almost 25 years. She is the founding director of Legal Services for Prisoners with Children, which has advocated on behalf of women prisoners, their children, and family members through litigation, direct representation, and policy reform since 1978. She is cochair of the National Network for Women in Prison, and a 1998 recipient of a MacArthur fellowship. The author wishes to thank all of the women prisoners who have shared their stories with her, especially those whose medical situations are described in this article.


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