Judge spanks Wellpath

| JUSTICE

By Royal Calkins

The federal judge monitoring medical care in the Monterey County Jail repeatedly scolded the health care provider in a recent hearing over the size of fines it will have to pay for persistently poor performance.

Several times Judge Beth Labson Freeman schooled the lawyer for Wellpath on court procedure and on how promises of future improvements won’t protect the company from fines that could total more than $1 million.

“Looking at the papers, Mr. Bertling, it looks as though you actually don’t dispute that your client is out of compliance in all 44 areas that have been identified and, instead, you seem to provide me with a hope and a prayer that you will be there maybe today, although you don’t provide me any evidence of that, or maybe some time in the future.”

San Diego-based Peter Bertling represents Wellpath, the increasingly notorious Tennessee-based company that has contracts to provide medical and mental health care to most county jails in California. Several of those, like Monterey County, are under federal monitoring because of seriously inadequate care.

Bertling insisted to the judge that recent improvements in Wellpath hadn’t been made known to her in time for the hearing. So, he argued repeatedly and mostly unsuccessfully to declare a time-out.

Attorneys representing inmates and their families say that the costs of litigation and sanctions would be better spent on fixing the problems but it’s Wellpath’s fault that it can’t be trusted to work without supervision.

“For months, Wellpath failed to provide dental treatment because it didn’t have the requisite dental personnel. It stopped entirely conducting the initial health examinations that it’s required to provide because it didn’t have enough nurses.”
Cara Trapani, attorney

A transcript of last week’s hearing in San Jose also provides some new details about recent problems with health care in the jail. Much of the blame for substandard care has focused on inadequate jail staffing and the administration of the previous sheriff, Steve Bernal. The administration of his successor, Tina Nieto, also has been experiencing some serious hiccups, despite her vow to increase jail staffing and the quality of care.

One of several lawyers for the inmates past and present, Cara Trapani, told the judge that the death rate has not improved since Bernal’s departure last December or since lawyers filed a motion for financial sanctions early this year.

There have been five jail deaths so far this year, a disproportionately high number for the size of the jail, which houses about 900 men and women.

“Since we filed our motion, several people have died in custody, including in July 2023 when a man lost his life after not receiving simple wound care at the jail,” Trapani said. “He had an open leg wound and he never received antibiotics.

“By the time medical staff realized that something was wrong, he had life-threatening sepsis and he died at the hospital a few days later.”

The man’s name was Steven Hall. Little about him has been made public. Under a policy change made by Nieto, the Santa Cruz County Sheriff’s Office is leading the requisite investigation rather than her own department as a way to promote objectivity.

Undersheriff Keith Boyd said Thursday that the inmate was in hospice care while in the jail but he could not comment on what treatment he did or did not receive there. Boyd said it wasn’t considered an in-custody death because Hall had been transferred to a hospital before he died.

Trapani said other inmates who have survived incarceration have endured “serious harm.”

“Women are not receiving appropriate gynecological care and family planning services. For months, Wellpath failed to provide dental treatment because it didn’t have the requisite dental personnel. It stopped entirely conducting the initial health examinations that it’s required to provide because it didn’t have enough nurses.”

The lawyer said one man reported severe abdominal pain for days and had to be rushed to the hospital after his appendix burst.

“Another man with a history of mental illness was never referred to a psychiatrist and was released from custody severely malnourished and in acute renal failure and this is just within the last several months.”

Because of a U.S. Supreme Court ruling decades ago, inmates in U.S. prisons and jails are deemed to have a constitutional right to adequate health care, a legal right not bestowed on others. The rationale is that because they are captives of the government, the government is obliged to protect their health.

Nonetheless, terrible inmate health care has become a national disgrace, mostly because of the high costs, existing strains on government budgets and a pervasive attitude that inmates don’t deserve comprehensive or even merely proper care like that afforded by the middle class.

If anything, the situation has gotten worse nationwide for several reasons, including the county jail system’s increasing role in housing inmates of a type that in earlier years would have been in state prisons.

Current county budgets won’t support reasonable improvements in the jails. Wellpath and competitors have been taken over by distant hedge funds. Recruiting for the companies and the counties is difficult because most people don’t want to work in jails. Understaffing by intent sparks little public protest.

All of that has led to a cottage industry of progressive lawyers willing to litigate against underperforming institutions for substandard health care. Trapani’s firm in San Francisco is probably California’s leading legal practitioner in that field. Their work resulted in a series of significant reforms in the California prison system and other needed changes in several jails.

For the record, the legal proceedings here are known as the Hernandez settlement. A lawsuit over unacceptable health care led to a 2015 court order putting Wellpath’s Monterey County operation under federal supervision with the judge to be guided by a team of neutral monitors, private doctors, psychiatrists and other professionals who have been inspecting the jail regularly.

“I just don’t have any evidence from you that you are in compliance. You have told me that you’ve taken steps but there are 44 enumerated areas of noncompliance.”
Judge Beth Labson Freeman

Based on formal reports filed by the monitors, lawyers for the plaintiffs calculated that Wellpath was deficient in all 44 components of its $15 million-a-year county contract. Many of those breaches, the lawyers argued, at least seemed to have contributed to preventable jail deaths.

Court papers show that the monitors once calculated Wellpath’s compliance rate at 46% but the number dropped to 40% over the years.

Judge Freeman told the Wellpath lawyer, “I just don’t have any evidence from you that you are in compliance. You have told me that you’ve taken steps but there are 44 enumerated areas of noncompliance.” She said she needed evidence of “the actual steps that you’ve taken.”

At one point, Freeman asked Bertling, “So what would be a reasonable number of people to die between now and the time you would come back to me…How many people?”

“None, none,” Bertling replied.

“Right,” Freeman responded.

“None, your honor.”

“Exactly.”

Freeman gave every indication that she will fine the company but not immediately, giving Wellpath another 60 days to look for evidence supporting any of its assertions.

Editor’s note: The plaintiffs’ law firm, Rosen Bien Galvan & Grunfeld, provided the transcript to Voices.

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FEATURED IMAGE: Adobe Stock | fergregory

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