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Pace Law School Jones Research Paper a Cruel and Unusual System Problems With Outsourcing Prison Health Care 2007

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A Cruel and Unusual System: The Inherent Problems of the Practice of Outsourcing
Health Care of Prisons and Jails
Doug Jones∗


The prison and jail population in the United States is enormous, and is growing larger
every day. The United States has about 2.1 million people behind bars, a larger proportion of its
population than another nation in the world.1 Such a large correctional system costs more than
$60 billion a year, up from just $9 billion two decades ago.2 In 2004, the rate of incarceration in
the United States grew to 726 persons per 100,000.3 In comparison, the United States’ closest
competitor in this field is the Russian Federation, whose imprisonment rate is 550 per 100,000.4
Prisons and jails in the United States are over-crowded and many strain to handle the vast
number of inmates they detain. As of June of 2002, state prisons operated between 1% and 16%
above capacity and federal prisons operated 31% above capacity.5 Also, the inmate population
has grown an average of 3.8% each year from 1995 to 2002.6 In fact, the increase in the rate of
imprisonment in America far exceeds the rate of increase in the general population.7


B.A., Washington University in St. Louis, 2003. J.D., Pace Law School, 2007.
Editorial, Death Behind Bars, N.Y. TIMES, March 10, 2005, at A26.
See The Sentencing Project, New Incarceration Figures: Growth in Population Continues 5 (Nov. 2005),
Paige M. Harrison & Jennifer C. Karberg, Bureau of Justice Statistics, U.S. Dep’t of Justice, Prison and Jail Inmate
at Midyear 2002 1 (2003).
Id. at 2.
See MARC MAUER, RACE TO INCARCERATE 17 (The New Press, 1999).

Electronic copy available at:

Additionally, the majority of inmates are black or hispanic.8 The impact of the growth of
imprisonment has been most severe on black men.9 Almost three in ten black males will be
incarcerated at some point in their lives. That figure is three in twenty for Hispanic men and less
than one in twenty-five for white men.10
Not only is the prison population in America vast and rapidly expanding, it is also the
sickest population in our society.11 In fact, “the prevalence of chronic illness, communicable
diseases, and severe mental disorders among people in jail and prison is far greater than among
other people of comparable ages.”12 Specifically, the “[s]ignificant illnesses afflicting
corrections populations include coronary artery disease, hypertension, diabetes, asthma, chronic
lung diseases, HIV infection, hepatitis B and C, other sexually transmitted diseases, tuberculosis,
chronic renal failure, physical disabilities and many types of cancer.”13 Some have argued that
the high concentration of the very sick in prisons and jails presents a public health opportunity.
For example in New York City some argue that “[t]he vast jail complex at Rikers Island [is] New
York’s crucible of public health, where doctors have a chance to treat some of the city’s sickest
and most troubled people before they return to the street.”14


See Paige M. Harrison & Allen J. Beck, Bureau of Justice Statistics, U.S. Dep’t of Justice, Prisoners in 2003 9
(Nov. 2004),
See Thomas P. Bonczar & Allen J. Beck, Bureau of Justice Statistics, U.S. Dep’t of Justice, Lifetime Likelihood of
Going to State or Federal Prison 3 (March 1997),
Paul von Zielbauer, Evaluation of Medical Care Provider in City Jails is Questioned, N.Y. TIMES, Dec. 26, 2005,
at B1. While no one in their right mind would argue that minorities’ disproportionate population in prisons and jails
is a good thing, it is, for the time being, a fact. See Bonczar & Beck, supra note _, at 3. However an unfortunate a
fact it is, it is a fact that could be taken advantage of by advocates for minority health care. These advocates could
implement health education programs in prisons and jails which would be ensured of reaching their target audience
because the target audience is, in a very literal sense, a captive audience.

Electronic copy available at:

Throughout the country, health care costs have skyrocketed in recent years.15 The
correctional system has not been immune to the rising cost of health care. In the last decade,
State and local government spending for inmate health care has tripled to approximately five
billion dollars a year.16 Not only are the costs of prison health care rising quickly, but many
correctional systems find it difficult to find qualified and experienced medial staff because
prisons and jails are not viewed as prestigious places to work and tend not to pay very well.17 In
response to these fiscal and staffing dilemmas, many correctional systems outsource prison
medical services to for-profit medical services corporations who claim that they can reduce the
costs of prison health care.18 These for-profit companies, in addition to claiming that they save
tax-payer money, “claim to provide many advantages over government-run correctional health
agencies by offering, for example, reform of on-site health care operations and reduction in the
need for hospital visits.”19 Additionally, these for-profit corporations argue that “[p]rivate
contracts allow easier prediction of costs and provide an available pool of doctors, nurses and
other workers who can address gaps in staffing more quickly than “’government
Interestingly, there is a long history of prison privatization in this country. The practice
developed as early as the eighteenth century when government-appointed jailers ran jails for

15, Health Costs Skyrocket, Sept. 22, 2003,
Paul von Zielbauer, Harsh Medicine: First of Three articles – Dying Behind Bars: As Health Care in Jails Goes
Private, 10 Days can be a Death Sentence, N.Y. TIMES, Fed. 27, 2005, at A1 [Hereinafter Zielbauer I].
Richard Siever, HMOs Behind Bars: Constitutional Implications of Managed Health Care in the Prison System,
58 VAND. L. REV. 1365, 1378-79 (2005) (citing William Allen & Kim Bell, Death, Neglect and the Bottom Line:
Push to Cut Costs Poses Risks, St. Louis Post-Dispatch, Sept. 27, 1998, at G1.).
Siever, supra note _, at 1379 (quoting Allen & Bell, supra note _, at G1).


profit.21 While many kinds of prison services, such as security or meals, can be contracted out,
the most commonly outsourced prison services are medical and mental health care.22 Supporters
of the outsourcing of prison services claim that the major advantage of the practice is that it
lowers costs.23 For example, one study examined a privately run prison farm, and with
conservative estimates, concluded that the private operation saved the local government between
four and fifteen percent annually.24 One of these for-profit corporations is Prison Health
Services, Inc. (“PHS”). PHS is based outside of Nashville, and its self-stated purpose is
“to provide quality, cost-effective healthcare services to prisons and jails at the local,
county, state, and federal levels nationwide.”25 PHS holds a contract with New York City’s
Rikers Island and claims that it has held increases in medical expenses below the national
average and that it has saved the city hundreds of thousands of dollars.26
However, despite all the benefits that corporations like PHS claim they bestow on state
and local governments, critics of the practice of outsourcing prison health care claim that the
industry “takes advantage of the public’s ill will toward inmates to give poor care while making
a profit.”27 There is a dark underside to the practice of outsourcing prison and jail health care.
Despite the public relations façade that corporations like PHS put forward, there are numerous
horror stories which bespeak the true nature of the practice of outsourcing prison and jail health


David Yarden, Prisons, Profits, and the Private Sector Solution, 21 AM. J. CRIM. L 325, 326 (1994).
Id. at 326-27.
Id. at 327.
Prison Health Services, Inc., Company Overview, (last visited March
19, 2006).
Paul von Zielbauer, Harsh Medicine – Second of Three Articles: Lost Files, Lost Lives: Missed Signals in New
York Jails Open Way to Season of Suicides, N.Y. TIMES, Feb. 28, 2005, at A1 [hereinafter Zielbauer II].
Allen & Bell, supra note _, at G1.


In general, inmates’ complaints about medical treatment received from these for-profit
corporations have included “claims about the adequacy and nature of the medical care received,
allegations of a total denial of medical care, improper medical care, [and] inadequate care . . . .”28
The story of PHS’s treatment of Brian Tetrault is illustrative.
Brian Tetrault was confined in a county jail in Schenectady, New York in 2001. The
former nuclear scientist had been charged with taking skis from his ex-wife’s home.29 Despite
the fact that he had long struggled with Parkinson’s disease, the jail’s medial director, an
employee of PHS, cut off all but a few of the 32 pills he took each day to quell his tremors.30
Over the next ten days, Mr. Tetrault’s condition rapidly deteriorated. He was less and less able
to move, he was constantly soaked in sweat, and sometime in his own urine.31 Shockingly, jail
nurses dismissed Mr. Tetrault as a faker, and he never saw the jail doctor or psychiatrist again.32
After ten long days of being under-medicated, Mr. Tetrault died of septic shock.33 In an effort to
avoid responsibility, correctional officers at the Schenectady jail altered records to make it
appear that Mr. Tetrault died after he had been released.34
Unfortunately, Mr. Tetrault’s death is not an isolated incident. Two months after Mr.
Tetrault’s tragic death, Victoria Williams Smith was booked into a Duchess County jail.35 This
jail’s health care services were also outsourced to PHS.36 Ms. Smith was the mother of a teenage
boy and was charged with smuggling drugs to her husband in prison.37 She complained of chest
pains to the jail’s medical staff, but her complaints were dismissed as a ploy to get drugs. The

Zielbauer I, supra note_, at A1.


only things she was prescribed was Bengay.38 Ten days later, Ms. Smith suffered a heart
attack.39 It was at this point that the jail medical staff called an ambulance, but it would arrive
too late to save her life.40 Later, New York state investigators concluded that the blame for both
of these tragic and unnecessary deaths lie with PHS.41
PHS moved into the business of providing jail health care in upstate New York with a
proposal that seemed too good to be true, to “take the messy and expensive job of providing
medical care from overmatched government officials, and give it to an experienced nationwide
outfit that could recruit doctors, battle lawsuits and keep costs down.”42 Michael Catalano, the
chairman of PHS, has stated “what we do, is provide a public health service that many others are
unable or unwilling to do.”43 Enchanted by the prospect of curbing jail heath care spending, state
and local governments nationwide decided to outsource their jail heath care systems and award
PHS contracts worth hundreds of millions of dollars.44 However, in the wake of the tragic deaths
that occurred in upstate New York, PHS no longer works for most of the jails in upstate New
The New York State Commission of Correction, which is appointed by the Governor to,
inter alia, investigate every death in jail, has repeatedly criticized PHS for its refusal to admit or
rectify deadly mistakes.46 The commission has faulted company policies or mistakes or
misconduct by it employees in 23 deaths of inmates in New York City and six in upstate




counties.47 Fifteen times in the last four years the commission has recommended discipline for
PHS doctors and nurses.48 In very strong language, one Commission report described PHS as
“reckless and unprincipled in its corporate pursuits, irrespective of patient care.”49 The report
continued that “[t]he lack of credentials, lack of training, shocking incompetence and outright
misconduct of the doctors and nurses . . . was emblematic of PHS’s conduct as a business
corporation, holding it self out as a medical care provider while seemingly bereft of any quality
New York is not the only state that has had problems with PHS. Georgia and Maine
prisons replaced the company when its contract ran out, complaining of understaffed prison
clinics.51 In Philadelphia’s jails, state and federal court monitors reported dangerous delays and
gaps in treatment and medication for inmates.52 However, despite all the criticisms and
controversies surrounding the company, it is still alive and well. PHS now serves more than 310
jail and prison sites around the country, covering approximately 214,000 inmates in 37 states.53
In fact, even though New York state investigators faulted PHS for the deaths in the upstate jails
and even though the State Commission of Correction has regularly criticized PHS, in January of
2005, PHS renewed a three year, $254 million contract with the Rikers Island jail complex in
New York City.54
The aim of this paper is to show that at a systemic level, the outsourcing of health care in
prisons and jails has or will soon provide such a paucity of health care that the level of care could


Prison Health Services, Inc., Company Overview, (last visited March
19, 2006).
Zielbauer I, supra note_, at A1.


be considered cruel and unusual punishment and thus be unconstitutional.55 This result is
inevitable considering the race to the bottom that occurs when several for-profit companies
compete for a correctional system’s health care contract, and considering that the prison
population has little or no power as a social or political constituency. Section II will examine the
legal standards under which inmates may bring actions alleging paucity of health care. Section
III will argue that the practice of outsourcing prison and jail health care inexorably leads to a
violation of inmates’ Constitutional rights. Section IV will suggest ways to improve correctional
institutions’ health care systems.
Generally, for a federal court to adjudicate an inmates’ complaint about medical
treatment, the inmate must alleged that a federal right was implemented.56 A common right that
inmates allege in medical treatment cases is the right to due process of law under the Fifth or
Fourteenth Amendments.57 The due process right has been interpreted to guarantee the inmate’s
right to be free from abuse of discretion on the part of the prison’s administrators.58 Another
common right that inmates allege to be violated in medical treatment cases is the right to be free
from cruel and unusual punishment as guaranteed by the Eighth Amendment.59 In general,
courts find a violation of Eighth Amendment rights when there is an intentional denial of needed
care, or when a prison official’s conduct indicates deliberate indifference to the medical needs of
an inmate.60


But see, Siever, supra note_, at 1404 (analyzing whether outsoursed prison health care is unconstitutional and
concluding that it is unlikely that a court will ever find the practice unconstitutional).
Palmer, supra note _, at 184.
Id. (citing Shannon v. Lester, 519 F.2d 76 (6th Cir. 1975); Derrickson v. Keve, 390 F. Supp. 905 (D. Del. 1975);
Nickolson v. Choctaw County, Alabama, 498 F. Supp. 295 (S.D. Ala. 1980); Lareau v. Manson, 507 F. Supp. 1177
(D. Conn. 1980), modified in, 651 F.2d 96 (2d Cir. 1981).
U.S. CONST. amend. VIII.
Palmer, supra note _, at 184.


However, there are limits as to what inmates can expect to accomplish through the
courts.61 In Priest v. Cupp, the court held that the constitutional prohibition of cruel and unusual
punishment does not guarantee an inmate that he will be freed from or cured of all real or
imagined medical disabilities while he is in prison.62 Instead, all that is required is that the
inmate be given such care, in the form of diagnosis and treatment, as is reasonably available
considering the circumstances of the inmate’s confinement and medical condition.63 Considering
this standard, a balance must be struck between the reality of the inmate’s confinement and her
need for medical attention.64 Accordingly, much of the litigation in this area has focused on the
“nature of so-called adequate or reasonable medical care.”65 Additionally, some courts reason
that a certain amount of deference must be given to prison administrators and hold that what
constitutes an adequate prison health care system, in the absence of allegations of intentional
negligence or mistreatment, must be left to the medical judgment of the prison physician.66
Whether a prison’s medical system is adequate or not depends upon the facts and
circumstances of each case.67 Therefore, there are many cases that explain in detail what an
adequate prison health system is and is not.68 It is worth noting that most cases hold that a
prison’s lack of funds is neither a defense nor an excuse for failure to provide adequate health


Priest v. Cupp, 545 P.2d 917 (Or. Ct. App. 1976).
Palmer, supra note _, at 185.
Id. at 186 (citing United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970) (emphasis added).
Palmer, supra note _, at 185.


In Gates v. Collier the Fifth Circuit reviewed the prison health system of the Mississippi
State Penitentiary.70 For over 1,800 inmates, the prison’s sparse health system included one fulltime physician, several inmate assistants, and what the court referred to as a “substandard
hospital.”71 The court held that to raise the prison’s health system to an adequate level, the
prison would have to implement numerous changes.72 First, the prison would have to increase
the medical staff to at least three full-time physicians, one of whom must be a psychiatrist, two
full-time dentists, two full-time trained physician’s assistants, six full-time registered or licensed
practical nurses, one medial records librarian, and two medical clerical personnel. Moreover, the
prison was ordered to obtain the consulting services of a radiologist and a pharmacist.73 Next,
the court required the prison to comply with the general standards of the American Correctional
Association relating to medical services for prisoners.74 Additionally the prison hospital would
have to be brought up to state licensing requirements, and the prison would not be able to use
inmates to fill any of the above required medical staff positions.75 However, if an inmate was
qualified to perform health care services, that inmate could be used to supplement the required
In contrast, the court in Miller v. Carson found the health care system of a Florida county
prison, with a maximum capacity of 432 inmates, to be adequate.77 There, the medical staff
included only one full-time physical, a licensed physician’s assistant, and 13 nurses.78 The court
found it significant that the medical staff’s work schedule allowed for a crisis intervention desk


Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974).
Id. at 1303.
Id. (emphasis added)
Miller v. Carson, 401 F. Supp. 835 (M.D. Fla. 1975).


to be staffed 24 hours a day, and that either the physician or the physician’s assistant was on call
24 hour a day.79 Additionally, the court reasoned that the prisons’ proximity to a university
hospital made such sparse staffing adequate.80
The landmark case in the area of prisoner’s constitutional rights to health care is Estelle v.
Gamble.81 The standard which Estelle sets forth is the lens through which all issues of prison
health care must be viewed. In Estelle, the Supreme Court held that for there to be a violation of
the Eighth Amendment prohibition against cruel and unusual punishment, the inmate must prove
facts and evidence that show a deliberate indifference to serious medical needs.82 Simple
negligence is insufficient; the lack of medical treatment must be intentional.83 Later cases
clarified that the deliberate indifference standard encompasses both objective and subjective
The first, objective prong is that the alleged deprivation must be, in objective terms,
sufficiently serious.85 This objective prong has also been formulated as requiring the inmate to
demonstrate a “serious medical need,” which is a standard not so high as to embrace only lifethreatening situations but not so low as to include minor medical conditions.86
The second, subjective prong was laid out in Farmer v. Brennan.87 This prong requires
that the prison official charged with violating an inmates’ rights must be shown to have acted


Estelle v. Gamble, 429 U.S. 97 (1976).
Palmer, supra note _, at 186.
Wilson v. Seiter, 501 U.S. 294 (1991).
(citing Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir. 1980); Golf v. Bechtold, 632 F. Supp. 697, 698 (S.D. W. Va.
Farmer v. Brennan, 511 U.S. 825 (1994).


with a sufficiently culpable state of mind.88 A sufficiently culpable state of mind requires more
than mere negligence or malpractice, but less than conduct undertaken for the very purpose of
causing harm.89 Specifically, “a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the official knows
of and disregards an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.”90 In Farmer, the Court expressly rejected an objective,
recklessness standard, because recklessness is not a self defining standard and can not answer the
question about the level of culpability that deliberate indifference requires.91 The Court
continued that the subjective standard was adopted because the Constitution does not outlaw
cruel and unusual conditions; it outlaws cruel and unusual punishments.92 Therefore, by
adopting a subjective prong to the Estelle analysis, the Court refused to impose liability on prison
officials solely because of the presence of objectively inhumane prison conditions.93 More
specifically, Farmer requires consciousness of the risk in addition to the objectively inhumane or
risky conditions.94 Ultimately, the Court defined the subjective second prong by stating that a
prison official may be held liable under the Eighth Amendment “for denying humane conditions
of confinement only if he knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it.”95
In explaining how the subjective second prong is to be applied, the Court stated that a
claimant need not show that a prison official acted or failed to act while believing that harm

Id. at 837 (emphasis added).
Id. at 836.
Id. at 838.
Id. at 839.
Id. at 847 (emphasis added)


would actually come to an inmate.96 Rather, “it is enough that the official acted or failed to act
despite his knowledge of a substantial risk of serious harm.”97 For example, if an inmate
presents facts and evidence that a substantial risk of inmate harm is “longstanding, pervasive,
well-documented, or expressly noted by prison officials in the past,” and the evidence suggests
that the official has received information relating to the risk and therefore “must have known
about it,” then such evidence is “sufficient to permit a trier of fact to find the defendant-official
had actual knowledge of the risk.”98 In a concurring opinion, Justice Blackmun stated that
Farmer “sends a clear message to prison officials that their affirmative duty under the
Constitution to provide for the safety of inmates is not to be taken lightly.”99
A case where this two prong test was applied was Ancata v. Prison Health Services,
Inc.100 There, the court considered a county’s policy of requiring inmates to obtain a court order
before referring them to a non-staff medical specialist.101 The court held that this practice could
constitute deliberate indifference.102 The court reasoned that “if necessary medical treatment has
been delayed for non-medical reasons, a case of deliberate indifference has been made out,”
including where defendants place “financial interests . . . ahead of the serious needs [of an
Another case where this two prong test was applied is Hathaway v. Coughlin.104 There,
the court held a prison doctor deliberately indifferent to an inmate’s serious medical needs when


Id. at 842.
Id. at 842-32.
Farmer v. Brennan, 511 U.S. 825, 852 (1994) (Blackmun, J., concurring).
Ancata v. Prison Health Services, Inc., 769 F.2d 700 (11th Cir. 1985).
Id. at 704.
Hathaway v. Coughlin, 37 F.3d 63 (2d Cir. 1994).


the doctor knew of and disregarded an excessive risk to the inmate’s health.105 Specifically, the
doctor discovered that the inmate had two broken pins in his hip, but waited two years until
recommending that the inmate be re-evaluated for surgery.106 The first prong was satisfied
because the deprivation of care was sufficiently serious in objective terms.107 The second prong
was satisfied because the doctor demonstrated sufficient culpable mental state in waiting two
years for recommending that the inmates be re-evaluated for surgery.108
If an inmate were to show that the practice of outsourcing prison health care is
unconstitutional, he would have to satisfy the two prong test discussed above.109 Specifically,
the inmate’s injury would have to be, in objective terms, sufficiently serious, and the inmate
would have to show a culpable mental state in the prison official. In other words, the inmate
would have to show that when the prison chose to outsource health care, the prison official was
deliberately indifferent in that she knew “that inmates face a substantial risk of serious harm and
[disregarded] that risk by failing to take reasonable measures to abate it.”110 In essence, the
inmate would have to show that prison officials intentionally chose to implement a system which
they knew would lead to such a degradation in health care, that the act of choosing to outsource
health care was a deliberately indifferent act.
The first, objective prong will not be hard to satisfy. The Supreme Court has specifically
held that the Cruel and Unusual clause protects against future inmate harm.111 The Court has
given the example that “a prisoner could successfully complain about demonstrably unsafe

See id.
See Siever, supra note_, at 1401.
Farmer, 511 U.S. at 847.
Helling v. McKinney, 509 U.S. 25, 32-33 (1993).


drinking water without waiting for an attack of dysentery.”112 Therefore, an inmate could bring
an action alleging that the practice of outsourcing health care in prison is unconstitutional
without waiting around to be injured by the dangerously sub-standard care. Although an actual
injury may not be necessary in theory, however, considering the number of inmates who have
actually been injured by the sub-standard care provided by PHS and corporations like it, it would
not be hard to find a sympathetic plaintiff with a sufficiently serious injury.113
The second, subjective prong is more problematic. No court has ever found that the
practice of outsourcing prison health care violates the Eighth Amendment.114 However, courts
have found health care delivery systems within specific prisons to be deliberately indifferent.115
Fortunately, it is not a far jump from finding that a specific prison’s health care system is
deliberately indifferent to finding that prisons outsourcing to for-profit, health care corporations
is deliberately indifferent.116
The case of Todaro v. Ward is illustrative.117 There, the Second Circuit held that the
entire health care system of a prison was deliberately indifferent and therefore violated the Eight
Amendment.118 The prison’s health care system relied on antiquated and malfunctioning
equipment and employed screening and intake procedures that caused unnecessary and
dangerous delays and denials of care.119 The court found that existing prison procedures resulted
in interminable delays and outright denial of medical care to suffering inmates.120


See, e.g., Zielbauer I, supra note_, at A1.
Siever, supra note _, at 1393.
See, e.g., Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977).
But see Siever, supra note _, at 1395, 1404 (discussing that a plantiff could make this argument and concluding
that she would be unlikely to ultimatly prevail).
Id. at 52.


In reaching its holding, the court found not only that the prison committed individual acts
of deliberate indifference, but that the act of adopting such a dangerously sub-standard health
care system was deliberately indifferent.121 The prison officials knew that the system they
adopted delivered dangerously low levels of heath care, and by knowingly adopting that system,
the officials were deliberately indifferent.122 Specifically, the court reasoned that “[w]hile single
instances of health treatment denied or delayed may appear to be the product of mere negligence
when viewed in isolation, ‘repeated examples of such treatment bespeak a deliberate indifference
by prison authorities to the agony engendered by haphazard and ill-conceived procedures.”123 In
fact, a series of incidents closely related in time “may disclose a pattern of conduct amounting to
deliberate indifference.”124 Using strong language, the court stated that the Constitution “does
not stand in the way of a broader attack on the adequacy of an institution’s entire health care
system which threatens the well-being of many individuals.”125
Todaro was decided before Farmer, but its facts and holding can still be analyzed under
the objective and subjective two prong analysis. As to the objective prong, the delays and
denials of care caused by the inadequate system were objectively sufficiently serious harms.126
Specifically, the prison’s medical intake system was deficient.127 Under this system, a single
nurse listened to inmates’ medical requests and dispensed medication.128 To prevent theft of
drugs, the nurse was locked in a small room, and observed inmates through a small, locked and
barred cashier’s window.129 Observing inmates in this way completely prevented the nurse from


See Wilson v. Seiter, 501 U.S. 294 (1991).
Todaro, 565 F.2d at 50.


performing any physical examination.130 To make matters worse, intake sessions lasted only
between fifteen and twenty seconds.131 Under this system, inmates often waited months for the
medical care they required, and some never received it at all.132 The court found that this intake
system caused delays and denials of medical care which in turn caused sufficiently serious
inmate harms.133 The second, subjective prong of the analysis is satisfied because prison
officials knew that implementing an inadequate health care delivery system would create a risk
of serious harm to inmates. They also knew that they could have implemented a system without
this risk. Finally, they chose to implement the inadequate system anyway. While this case did
not specifically deal with the practice of outsourcing health care in prisons, it does clearly show
that prison health care is vulnerable to a systemic attack.134
Todaro shows that a prison official can be deliberately indifferent when choosing to
adopt a dangerously inadequate prison health care system. Outsourced health care in prisons and
jails, as a system, is plagued by fundamental and inherent problems which make the system
dangerously inadequate.135 Furthermore, these problems are so “longstanding, pervasive, [and]
well-documented” that prison officials either knew or should have known of the substantial risks
of serious harm that outsourcing health care to for-profit corporation poses to inmates.136
A. Profit as the First Priority
When a prison outsources its health care, it gives the contract to a for-profit
corporation.137 The New York State Commission of Corrections is the organization that
investigates every death in jails whose health care in run by PHS, and is a very outspoken critic

See Siever, supra note _, at 1395.
See, e.g., supra notes 29-41 and accompanying text.
Farmer, 511 U.S. at 842-43.
See, e.g., Zielbauer I, supra note_, at A1.


of PHS.138 The Commission has said that “[o]ur sense was that what we were dealing with was
not clinical problems but business practices.”139 Specifically, the troublesome business practice
was that PHS would run the prison’s health care system at as low a cost as possible in an effort to
make a profit.140 In fact, the commission noticed that low level employees were routinely doing
work normally done by better credentialed people.141 For example, nurses were making medical
decisions and pronouncing people dead.142 Additionally, one study performed by the
Commission in 2001 found that the doctor overseeing care in several upstate jails regularly
overruled the doctors at the jails and regularly refused drugs and treatments.143 Amazingly, this
doctor was not licensed to practice in New York and he did his job over the phone from
The simple fact of the matter is that the first priority of a for-profit corporation is to make
a profit. By definition, the priority of providing decent health care will always be subservient to
the corporation’s drive to make a profit. In this way, the system of outsourcing health care in
prisons encapsulates an inherent conflict of interest, where the entity charged with providing
health care to inmates serves its own best interest by providing as little care as possible. Indeed,
one could reasonably speculate that all of the specific problems inherent in the system of
outsourcing prison health care stem from the fact that PHS’s motivation is not to provide decent
health care to inmates, but is to simply make a profit.
B. Poor Checking of Doctor’s Credentials




In 2001, the New York State Commission of Correction issued a report stating that PHS
was practicing dangerously substandard medicine by hiring doctors and nurses with questionable
credentials.145 Specifically, PHS employed five doctors with criminal convictions, including one
who sold human blood for phony tests to be billed to Medicaid.146 Also, at least fourteen doctors
who have worked for PHS have state or federal disciplinary records, including a psychiatrist who
is forbidden to practice in New Jersey where state officials have held him responsible for a
patient’s fatal drug overdose.147 Additionally, doctors who have worked for PHS have stated that
they make more money by working less hours with other employers.148 Accordingly, it is not
hard to see why PHS employs less desirable doctors, and why PHS may be less than thorough
when checking the credentials and background of the doctors it ultimately hires.
C. Understaffing
In New York City, government officials and monitors have repeatedly complained about
PHS’s understaffing on Rikers Island.149 For example, the New York City Board of Corrections
found that PHS severely understaffed psychiatrists on Rikers Island.150 For the entire jail
compound, PHS employed only 10 psychiatrists, all of whom had foreign medical degrees.151
Additionally, the company failed to fire them when they failed to pass necessary licensing
tests.152 PHS shuffled these 10 doctors from building to building on Rikers Island to avoid city
fines and to create the illusion that each building was properly staffed.153 The mental health staff


Zielbauer II, supra note _, at A1.
Zielbauer I, supra note_, at A1.
Zielbauer II, supra note _, at A1.


at Rikers even had a name for this practice: floating.154 The rate of suicides in jails is seen as a
barometer of how the jail’s psychiatric services are performing, and in 2003, when PHS was
providing psychiatric services to Rikers Island, there were six suicides in just six months.155
By way of comparison, mental health staff at Rikers Island has shrunk by almost twenty
percent since PHS took over the job of providing prison health care from it predecessor.156 PHS
is always looking for more psychiatrists, and is often forced to plug gaps with part-time staff or
with staff from temporary agencies.157 More than one third of the mental health staff on Rikers
is part time.158 This problem becomes more acute considering that one in four of the 14,000
inmates in New York City jails is in need of mental health care.159
Adult inmates were not alone in receiving severely understaffed medical care. In 2000,
PHS had only one full-time doctor for 19 separate juvenile detention centers scattered across
New York City.160 5000 children passed through these 19 centers each year.161
D. Poor Training of Staff
In 2001, Aja Venny was booked into a Bronx jail where PHS ran the health services.162
She was six months pregnant, but she never saw the jail’s obstetrician.163 The only concession to
her condition was to put her in a maternity unit of the jail.164 One night, Ms. Venny was woken
by severe cramps and she called for a guard to get a nurse.165 The nurse who responded, Donna


Paul von Zielbauer, Harsh Medicine – Last of Three Articles: Mistreating Tiffany: A spotty Record of Health
Care for Children in City Detention, N.Y. TIMES, March 1, 2005, at A1 [hereinafter Zielbauer III].
Zielbauer I, supra note_, at A1.


Hunt, found Ms. Venny sitting on the toilet with “blood everywhere.”166 The nurse later said
that she assumed Ms. Venny had miscarried and saw no reason to check the toilet.167 However,
when ambulance technicians arrived they checked the toilet and found an infant lying in the
bowl.168 Three days later, the infant died.169 The State Commission of Corrections investigated
this incident and found that this tragedy arose from a deep seated failure to train prenatal staff.170
Apparently, the prenatal training for the nurse working at that jail consisted of e-mail messages
with instructions copied from a university web site.171
E. Error Hiding
In an attempt to avoid fines and criticism, PHS and other corporations often hide the
medical errors they make. For example, Dr. Douglas Cooper, PHS’s former assistant
supervising psychiatrist on Rikers Island, stated that an unwritten policy of the company was to
“[p]ut your best face forward, hide as many problems as you can and hang on to the contract for
as long as you can.”172 Some former employees of PHS alleged that to sidestep an understaffing
fine, PHS employees would sign in at one jail and then work at another.173 Additionally, the
policy of hiding errors is evidenced in a practice where PHS supervisors fix errors and omissions
on inmate medical forms to avoid fines.174
No doubt, PHS believes that hiding errors will help its bottom line in the short run by
avoiding fines. However, in the long run, this policy may be detrimental to both inmates and to
the corporation. If errors are not reported, no lessons will be learned from mistakes. If no

Zielbauer II, supra note_, at A1.
Paul von Zielbauer, Evaluation of Medical Care Provider in City Jails is Questioned, N.Y. TIMES, Dec. 26, 2005,
at B1.


lessons are learned, then system will remain stagnant, and the level of care will not improve.
Clearly this stagnant level of care is detrimental to inmates, but it is detrimental to the
corporation as well. If the corporation did not hide errors, and attempted to learn from its
mistakes, then it could find more efficient ways to deliver health care. This would help the
bottom line by reducing the cost of providing health care, and by reducing the costs associated
with providing inadequate health care, like fines and legal fees.
F. State and Local Government Quick Fixes
It is easy to imagine a legislator in a love hate relationship with the practice of
outsourcing health care in prisons and jails. They love the company’s promise that it will save
tax payer dollars, but they hate the scandals that occur when newspaper reporters discover just
how awful prison health care actually is.175 In response to these scandals, many politicians
attempt to put superficial, quick fixes on the system. The problem with these quick fixes is that
they are not effective. The real remedy is to stop the practice of outsourcing prison health care to
for-profit corporations.
For example, the New York State Commission of Correction has urged the New York
Attorney General to halt PHS’s operation in New York. The Commission claims that PHS has
no legal authority to practice medicine in New York because business executives are in charge of
the company.176 New York, like most states, requires for-profit corporations that provide
medical services to be owned and controlled by doctors.177 This ensures that business
calculations of profit do not drive medical decisions.178 Requiring that PHS, and companies like
it, be run by doctors is at best a superficial and ineffective remedy. As PHS is a for-profit


See, e.g., Zielbauer I, supra note_, at A1; Zielbauer II, supra note_, at A1; Zielbauer III, supra note_, at A1.
Zielbauer I, supra note_, at A1.
Id.; N.Y. Comp. Codes R. & Regs. tit. 10, § 600.9(c) (2005).


corporation, at the moment the corporation stops making a profit, the corporation will stop
providing health care to prisons. Therefore, by definition, every decision that a for-profit
corporation makes will factor in cost, profit and the bottom line. This will be true regardless of
whether the company is run by business men or by doctors. Either way, a for-profit
corporation’s goal is to make a profit. Therefore, merely requiring that these companies must be
run by doctors will not fix the system. Instead, the system should be scraped, or changed on a
much more fundamental level.
Indeed, the ease with which PHS by-passed this requirement shows how ineffective a
remedy it is. In New York, PHS set up two corporations, run by doctors, which handle the
medical care for prisons and jails in New York.179 State investigators have called these
corporations shams.180
G. A Deliberate Indifference to These Problems
Farmer explained that a prison official may be held liable under the Eighth Amendment
“for denying humane conditions of confinement only if he knows that inmates face a substantial
risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”181
A prison official who chose to implement a system of outsourcing prison health care could be
held liable under that standard.
First, in choosing whether to implement a system of outsourced prison health care, a
prison official would know that implementation of such a system would expose inmates to a
substantial risk of serious harm. No prison official would arbitrarily choose one prison health
care system over another. In the act of choosing a system, the official would research the various
options. Even cursory research on the various corporations that contract for prison healthcare

Zielbauer I, supra note_, at A1.
Farmer v. Brennan, 511 U.S. 825, 847 (1994).


services reveals a litany of fines, lawsuits, and deaths attributed to these corporations and the
paucity of health care they provide.182 Therefore, as in Farmer, the evidence of the risk of
outsourcing health care to a for-profit corporation would be “longstanding, pervasive [and] welldocumented” such that a jury could find that the official had actual knowledge of the risk.183
Thus, in choosing to implement a system of outsourced health care, the prison official would
know of the horrible reputation for-profit prison health care providers. Because of this
knowledge, the official would know she is exposing inmates to a substantial risk of serious harm.
Second, if the prison official chose to outsource the prisons’ health care anyway, she
would be disregarding the substantial risk of serious harm, and would thus be deliberately
indifferent. The standard set forth in Farmer requires the prison official to take reasonable steps
to abate any substantial risk to inmate health.184 By simply choosing to outsource prison health
care, even though the official knows of the risk, the official would fail to take reasonable steps to
abate the risk. If the officials know of the risk, and disregard it, they could be held liable for
providing such a paucity of care that it is a cruel and unusual punishment.
A counterargument to this position could be that despite salacious media stores about
health care in prisons and anecdotal horror stories, corporations that provide health care in
prisons are taking on a difficult job, and doing the best anyone could do given the realities of the
correctional environment. No one would concede that PHS and corporations like it are doing a
perfect job, but critics of my position could argue that they are doing the best anyone could under
the circumstances.


For example, on April 2, 2006 the author entered “Prison Health Services” into the Google search engine, and 4
of the first 10 resulting links dealt with some kind controversy in which PHS is involved.
Farmer, 511 U.S. at 842-43.
Id. at 847.


This counterargument could hold water if, at the very least, the level of health care
behind bars gets no worse. The problem with this counterargument is that the nature of the
system of outsourcing health care in prison ensures that the level of health care behind bars will
inexorably decline.
H. Race to the Bottom
There are only around half a dozen companies who offer outsourcing for prison health
care, and they often compete with each other, “jockey[ing] to underbid each other to promise the
biggest savings.”185 The bids get lower and lower, but the prison population rises.186 The
inevitable result of this is the level of care drops further and further.
Additionally, the infinitesimal power of inmates as a social or political constituency
makes this problem even worse. Normally, service providers competing with each other results
in consumers receiving the best quality service at the best price. However, achieving this result
presupposes an informed consumer who can make an informed choice. This presupposition does
not stand in the correctional environment. Prisoners have no choice in who provides their health
care, instead that choice lies with prison officials. Prisoners must rely on elected officials or
prison officials to look out for their best interest in this area. The problem is that because
prisoners have little to no power as a social or political constituency, prison officials or elected
officials often do not look out for the best interests of prisoners. Simply, because prisoners have
little to no political power, politicians have no incentive to look out for their best interest.
Outsourcing health services to the private sector makes sense only if there is a strong
constituency that cares deeply about the people receiving the service and if the enterprises


Zielbauer I, supra note_, at A1.
See, e.g., Paige M. Harrison & Jennifer C. Karberg, Bureau of Justice Statistics, U.S. Dep’t of Justice, Prison and
Jail Inmate at Midyear 2002 2 (2003).



involved are held accountable for service quality.187 The problem is that such accountability
does not exist for prison inmates.188
One glaring example of this lack of accountability is the system New York City uses to
monitor PHS’s performance. New York City creates a report card for PHS every quarter where
it judges PHS’s performance, and can fine PHS if its performance is lacking in any area.189 The
city bases this report on a review of inmates’ medical records.190 The problem is that “the city
lets PHS pull the charts itself, a practice that has allowed company employees to fix errors or
omissions before city auditors could see the files.”191 Additionally, some see a potential conflict
of interest in that the city agency that monitors PHS’s performance is the same agency that
awarded PHS its contract in the first place.192 This conflict is evident when considering that at
least 19 times since 2001, the city’s medical director has excused enough deficiencies in PHS’s
report card so that a failing score became a passing one, allowing PHS to avoid fines.193
Another problem with the practice of outsourcing prison health care is that there are few
corporations that provide such services, while the demand for a corporation that offers low cost
prison health care is very high. About 40 percent of all inmate health care in America is now
contracted to for-profit companies.194 The largest is PHS, followed by it closest rival,
Correctional Medical Services and four or five others.195 Thus, there are only a handful of
companies whose business is to contract with state and local governments for the outsourcing of
prison and jail health care. Nevertheless, the field is very competitive as these companies

Letter to the Editor, For-Profit Health Care Penalizes Prisoners, N.Y. TIMES, March 13, 2005.
Paul von Zielbauer, Evaluation of Medical Care Provider in City Jails is Questioned, N.Y. TIMES, Dec. 26, 2005,
at B1.
Zielbauer I, supra note_, at A1.


compete with each other to offer the lowest bids and win contracts.196 In this field, it is a regular
practice for companies to move from “jail to jail, and scandal to scandal – often disliked but
always needed.”197 In fact, because the field of corporations that provide prison health services
is so small, it is not uncommon for a government to hire the same corporation that they fired for
cause years earlier.198 This revolving door effect is made even worse considering that many
states have legislative mandates requiring prisons to accept the lowest bidder.199 These mandates
provide few incentives for quality and contribute toward the frequent turn-over of contractors
because of poor profitability.200
Therefore, the combination of a race to the bottom, a small field of competitors, high
demand for their services, and complete lack of inmate social or political power ensures that if
the system of outsourcing prison health care does not change, the level of care provided to
inmates will continue to get worse and worse. If the level of care is not already at the level of a
cruel and unusual punishment, then, absent a significant change in the system, it will be someday
It is time to face facts; America has the largest prison population in the world and it is
getting larger.201 Moreover, our prison population is the sickest population in our society,202 and
rare is the politician who is not tough-on-crime.203 If we are going to live in a society with a


Harold Pollack et al., Health Care Delivery Strategies for Criminal Offenders, 26 J. HEALTH CARE FIN. 63, 64
Editorial, Death Behind Bars, N.Y. TIMES, March 10, 2005, at A26.
See, e.g., Issues2000, George W. Bush on Crime, (last
visited April 2, 2006).


tough-on-crime attitude, then the simple fact of the matter is that we as a society are gong to
have to pay for our prison system. We are going to have to pay a lot.
One commentator has argued that the humanitarian basis for prison reform, to treat
prisoners better simply because they are people and it is the right thing to do, is the morally
correct view.204 However, if the free population is to “open its purse stings for the benefit of
prisoners” it must have a pragmatic argument directed towards the free population’s selfinterest.205 Luckily, there is such a pragmatic argument; “treat prisoners well and we all benefit
by avoiding the personal health and financial consequences of releasing sick prisoners into the
community.”206 Considering that there is both a humanitarian and pragmatic argument for
spending more on prison health care, it may be possible for advocates to convince state and local
governments that society no longer wants sick prisoners released into the community. Therefore,
advocates can argue that the practice of outsourcing prison health care, which inevitably leads to
sicker prisoners, must stop.
Amazingly, some prison officials have stated that despite slashing the level of care given
to inmates, for-profit corporations like PHS save prison systems little money in the end.207
Indeed, when one factors in the attorneys fees and the costs of settlement and judgments against
prison systems when inmates are injured by substandard care, it may be that outsourcing prison
health care is more expensive than if the state or local government simply provided it itself.
Therefore, it may be more economical to find another way to deliver health care to prisons and


John V. Jacobi, Prison Health, Public Health: Obligations and Opportunities, 31 AM. J. L. & MED. 447, 463-64
Zielbauer I, supra note_, at A1.


Some large city hospitals and other non-profit enterprises has entered the arena of
providing health care to inmates, and many consider them to have provided the best care to
inmates.208 They often cost more than the for-profit corporations like PHS,209 but it is in
society’s best interest to provide better health care to its prisoners. Some New York lawmakers
have called for a change to the system. New York Assemblyman Richard N. Gottfried has
pressed state lawmakers to create a public corporation, like the city’s Health and Hospital
Corporation, that would be responsible for health care for prison inmates.210 Dr. Thomas R.
Frieden, New York City’s health commissioner, has stated that he would prefer to have a public
hospital provide inmate health care, but that none bid for the job despite his personal appeal to
hospital executives to do so.211
The practice of outsourcing prison health care to for-profit corporations is fundamentally
broken. The financial incentive for these corporations to provide inadequate care to prisoners is
huge, and because prisoners do not have any political clout, these corporations can profit off the
public apathy towards prisoners. Therefore, the type of organization best suited to provide health
care to prisons and jails is a government created non-profit organization. With a non-profit
organization, the driving motivation would not be profit, but a sense of mission to provide health
care to a vulnerable population.
Unfortunately, the goal of completely ending the practice of outsourcing prison health
care to for-profit corporations may be a bit ambitious. Keeping that in mind, if a prison system is
going to outsource its health care to a for-profit corporation, there is a responsible way to do it.
One vital element of a responsible outsourcing system is a comprehensive monitoring process.

Paul von Zielbauer, Investigators Called Rikers Medical Contract Illegal, State Panel Says, N.Y. TIMES, Nov. 22,
2005, at B1.


For example, New York City health officials set up an elaborate performance evaluation system
to monitor the effectiveness with which PHS provides health care to inmates on Rikers Island.212
There is a quarterly report card with 35 standards that the company must adhere to.213 If they do
not, they are subject to hefty fines.214 For example, during the first year the company ran health
services on Rikers they failed to meet thirty-nine percent of the standards on the report and were
fined $568,000.215 An essential component of the monitoring process is to make sure it is done
objectively. The medical reports on which the corporation is graded, should be pulled by state
employees, not employees of the corporation. Additionally, to avoid conflict of interest, the state
entity that carries out the grading should be separate from the entity that awarded the contract to
the corporation. Finally, it would be prudent to require the entity that does the monitoring to
rank the corporation’s performance on some kind of standardized scale and to make this rank
readily available. This way, other prison systems who are shopping around for a corporation to
provide health care will be able to compare different corporations on the standardized scale.
This will place market pressure on the corporations to provide better care and at a more efficient
The practice of outsourcing health care in prisons and jails to for-profit corporations is
fundamentally broken. The level of care these corporations provide inmates is dangerously
inadequate and considering the race to the bottom that occurs when several of these corporations
compete for the same contract, the level of care can only get worse.


Zielbauer I, supra note_, at A1.


Because prison officials know of the substantial risk to inmate health that outsourcing
prison health care can cause, when a prison official chooses to implement a prison health care
system that is outsourced to a for-profit corporation, that prison official is deliberately indifferent
to the health care rights of inmates. Therefore, that prison official could be held liable for
violating the Constitutional rights of inmates by implementing a prison health care system that is
the equivalent of a cruel and unusual punishment.
Correctional systems must stop the practice of outsourcing prison health care to for-profit
corporations. It is proposed that a practicable alternative is to place the responsibility of
providing inmate health care on government created, non-profit organizations. This would
eliminate the dangerous conflict of interest that is fundamentally encapsulated in the practice of
outsourcing prison health care to for-profit corporations – simply put it is in a for-profit
corporation’s best interest to provide as little care as possible. In the alternative, it is proposed
that if the practice of outsourcing prison health care to for-profit corporations can not be
completely halted, that independent entities closely, and frequency scrutinize and evaluate the
performance of these for-profit corporations. The results of these strict evaluations should be
made readily available. This will place market pressure on these for-profits corporations to
provide quality health care to inmates at a reasonable cost.




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