PLN Settles ........

PLN Settles Public Records Suit Against PHS in Vermont, Obtains Settlement Payout Information

by Alex Friedmann 

On February 21, 2012, Prison Legal News settled a public records lawsuit filed in Vermont state court against Prison Health Services (PHS, now operating as Corizon Health, Inc.). As part of the settlement PHS agreed to produce records related to its resolution of legal claims against the company in Vermont, which included a total of $1.8 million in six cases.

PLN had filed suit against PHS on August 26, 2010 after the for-profit company, which provided medical care for Vermont state prisoners until the end of 2009, refused to produce documents pursuant to a public records request.

PLN requested copies of PHS’s contracts with government agencies in Vermont, records related to settlements and judgments that PHS had paid as a result of lawsuits and civil claims, and documents concerning costs incurred by PHS to defend against claims or lawsuits.

One of those claims involved the August 16, 2009 death of Ashley Ellis, 23, a Vermont prisoner who died at the Northwest State Correctional Facility just three days into a 30-day sentence. PHS employees had failed to give her potassium despite her repeated pleas for medical care and an order from her doctor. The medical examiner cited “denial of access to medication” as a contributing cause of her death. [See: PLN, April 2010, p.32].

Although PHS is a private company, PLN argued it was the functional equivalent of a public agency because it provided health care to prisoners – a function that public employees would have to provide if the state did not contract with PHS – and thus was subject to Vermont’s public records law. The “functional equivalency” test has been applied to private companies that perform public duties in at least eight states, including Florida, Tennessee, Maryland, North Carolina, Oregon, Kansas, Ohio and Connecticut.

PHS denied PLN’s public records request, claiming that as “a private corporation” the company “does not qualify as a ‘public agency’” within the meaning of Vermont’s public records statute. 

“The state can outsource public functions and services such as health care for prisoners,” said PLN editor Paul Wright, “but it cannot contract out the public’s fundamental right to know how their tax dollars are being spent and the quality of services the public is getting for its money.” He also questioned “why PHS refuses to release records that state agencies would have to produce if the state were providing prison medical care.”

PLN’s public records lawsuit contended that “Prison Health Services, by virtue of its contractual relationship with the Vermont Department of Corrections, was a public agency subject to Vermont’s public records statute” because it was an “instrumentality” and functional equivalent of a government agency. Further, PHS’s funding for its Vermont contract came “exclusively from the Vermont DOC, and hence, the taxpayers.”

In settling the case in February 2012, PHS agreed to produce unredacted copies of “the general releases it secured to settle claims or potential claims arising out of PHS’s provision of medical care to inmates in the custody of the Vermont Department of Corrections” in six cases responsive to PLN’s records request, including the Ashley Ellis case. The company further agreed to pay $5,350 in attorney fees to the ACLU of Vermont but did not admit liability or wrongdoing.

According to the records produced by PHS, the company paid $700,000 in February 2010 in a pre-litigation settlement to resolve claims related to the death of Ashley Ellis. Ellis’ estate, represented by Rutland attorney Shannon A. Bertrand, is also pursuing a separate lawsuit against the State of Vermont, the Vermont DOC and various state employees. See: Gipe v. State of Vermont, Vermont Superior Court, Rutland Unit, Case No. 515-7-11.

Additionally, in October 2010, PHS agreed to pay $950,000 to settle a federal lawsuit filed by Christopher Barrett, a state prison guard who was attacked and injured by a prisoner in 2005 at the Northern State Correctional Facility; PHS allegedly did not give the prisoner his prescribed medication for a mental health condition, which resulted in the assault. Barrett was represented by attorney David J. Williams. See: Barrett v. Prison Health Services, U.S.D.C. (D. VT), Case No. 5:08-cv-00203-cr-jmc.

PHS paid $47,500 in December 2010 to settle the negligence and medical malpractice claims of Agim and Fexhrije Sulejmani, related to Agim’s health care while he was incarcerated in 2006. Despite repeatedly seeking treatment for a preexisting throat condition, PHS staff failed to provide adequate medical care or diagnose Agim’s laryngeal cancer, which required him to have an emergency tracheotomy and surgery after he was released from prison. The Sulejmanis were represented by Hinesburg attorney Beth A. Danon. See: Sulejmani v. Prison Health Services, Vermont Superior Court, Chittenden Unit, Case No. S1237-09.

In October 2011, PHS paid $45,000 to settle a lawsuit filed by Vermont prisoner Edward Truszkowski, Jr., who claimed that PHS had failed to provide prescribed medication for his Gastroesophageal Reflux Disease while he served a 30-day sentence at the Southern State Correctional Facility. Truszkowski was represented by attorney Brian R. Marsicovetere. See: Truszkowski v. Hofman, U.S.D.C. (D. VT), Case No. 5:11-cv-00006-cr-jmc.

PHS agreed in November 2007 to pay $32,500 to the estate of Robert C. Nichols due to Nichol’s 2004 death at the Chittenden Regional Correctional Facility. Although he was suffering from heroin withdrawal and had ingested 80 bags of heroin soon after he was incarcerated, Nichols was “not given immediate medical attention,” according to a lawsuit filed by his estate, which led to his death. Nichols’ estate was represented by Peter F. Langrock with the law firm of Langrock Sperry & Wool, LLP. See: Nichols v. State of Vermont, Vermont Superior Court, Rutland Unit, Case No. 546-10-06.

Lastly, on June 1, 2007, PHS paid $25,000 to settle a pro se federal lawsuit filed by Vermont state prisoner Peter Goodnow, who alleged inadequate medical care for a broken hand and painful tooth while he was housed at the CCA-operated Lee Adjustment Center in Kentucky. See: Goodnow v. Hofman, U.S.D.C. (D. VT), Case No. 1:06-cv-00124-jgm-jjn.

The settlements in the six cases totaled $1.8 million. This was the first known time that PHS had produced records related to its resolution of legal claims against the company, which typically include confidentiality provisions. PHS’s defense counsel in Vermont includes the Burlington law firm of Dinse, Knapp & McAndrew, P.C. One of the firm’s attorneys, Shapleigh Smith, Jr., is the current Speaker of the state’s House of Representatives.

PLN was initially represented in its public records lawsuit by attorney David C. Sleigh with the law firm of Sleigh & Williams, P.C., and subsequently by Dan Barrett with the ACLU of Vermont. See: Prison Legal News v. Prison Health Services, Vermont Superior Court, Washington Unit, Case No. 622-8-10.