‘Torture or a lingering death’
To make a successful claim for legal redress, prisoners must prove that prison or jail officials acted with deliberate indifference.
The standard was established the 1976 Estelle v. Gamble case, in which the US Supreme Court ruled that deliberate indifference to an inmate’s serious illness constitutes cruel and unusual punishment, in violation of the Eighth Amendment. Writing for the majority, Justice Thurgood Marshall cited “the government’s obligation to provide medical care for those whom it is punishing through incarceration.”
The definition of “cruel and unusual punishment” goes back to the re Kemmler case, decided in 1890, in which the court articulated that “punishments are cruel when they involve torture or a lingering death.”
“In the worst cases, such a failure may actually produce physical ‘torture or a lingering death,’ the evils of most immediate concern to the drafters of the Amendment,” Marshall wrote. “In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common law view that ‘it is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.’”
Deliberate indifference might play out with jail or prison guards “intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed,” Marshall added.
John McCormack Jr., Jen’s brother, declined to comment on whether the family is planning to file a lawsuit.
Whether or not the Forsyth County Sheriff’s Office and Correct Care Solutions demonstrated deliberate indifference in failing to adequately respond to Jen’s medical problems would be up to a court to determine should Jen’s family decide to pursue a claim. The more important question might be why we’re locking up people who are sick and in need of treatment.
To recite some of the information previously published in the first installment, Jen was booked in the Forsyth County jail at 12:46 p.m. on Aug. 28, 2014. Her intake report indicated that she was “experiencing withdrawal,” and another booking document noted, “Pregnant!”
“I would speculate that a lot of what should have happened, didn’t happen,” Dr. Starer said. “The standard management for a pregnant woman with opioid dependence would be for her to be treated throughout the pregnancy with either methadone or buprenorphine.
“When she went into jail she would have been continued on that medication or transitioned to methadone if buprenorphine was unavailable, but if she had a prescription she should have been able to receive buprenorphine,” Starer continued. “Unfortunately, a lot of jails and prisons don’t allow opioid agonist treatment in jail.”
As reported previously here, a National Institutes of Health consensus panel recommended methadone maintenance as the standard of care for pregnant women addicted to opiates in 1998, according to a protocol published by the US Department of Health and Human Services. And a committee opinion reaffirmed by the American College of Obstetrics and Gynecologists warns: “Abrupt discontinuation of opioids in opioid-dependent pregnant women can result in preterm labor, fetal distress or fetal demise.”
There is no state law or regulation in North Carolina requiring local jails to continue medication-assisted therapy for individuals who are prescribed buprenorphine or methadone to treat opioid addiction. Drug treatment is a hodgepodge of different practices across the state’s 100 counties. Each county jail maintains its own medical plan, which is approved by the county public health director, said Alexandra Lefebvre, a spokesperson for the state Department of Health and Human Services.
The Durham County Detention Center is a rare example of a local jail where inmates who come in with a prescription for methadone continue to receive treatment, said Melissa Godwin, a clinical instructor at the UNC-Chapel Hill School of Social Work.
“It is not seen by and large that county jails are set up to provide substance abuse services,” Godwin said. “The norm is to not have any medication-assisted treatment for opioid use disorder.”
Lonnie Albright, an assistant county attorney with Forsyth County, said the jail does not have a policy on whether to provide medication-assisted therapy to addicted individuals who come into the system with a prescription, referring questions to Correct Care Solutions, which he said holds responsibility for such decisions. Karla West, a spokesperson for Correct Care Solutions, declined to comment for this story.
“I think it was straight cold turkey when they took her in jail,” said John Jr., who is about 18 months younger than his sister. “From what my mom told me, she had nothing.”
The first sign of trouble for Jen came on Sept. 4, her ninth day in jail, when Pfc. McBride discovered through the camera monitoring system that she was on the floor, while observing “a large puddle of water on the floor and the cell was not sanitary,” as noted in the incident report. Jen reported that she had fallen, and the detention officer “moved the bed that appeared to have trapped her against the wall.”
“If she was allowed to go into withdrawal, that could lead to a number of problems,” Dr. Starer told me. “Additionally, if she wasn’t allowed to take her Xanax, that would have also caused a lot of problems — if she had been consistently taking Xanax prior to coming into jail. The largest risk of Xanax withdrawal is seizures.
“If you see someone who has fallen down and become incontinent of urine and trapped against the bed, my first thought was that this person had a seizure,” she added.
Three different physicians across the country who reviewed for this story Jen’s postmortem and jail incident reports expressed concern about the possibility of withdrawal from benzodiazepine, the active agent in Xanax.
But Dr. Spencer Greene, the director of medical toxicology at Baylor College of Medicine in Houston, said in his opinion the symptoms Jen presented are not consistent with benzodiazepine withdrawal.
“Her findings as well as her lab results are more consistent with a combination of starvation and dehydration and under resuscitation prior to arrival at the hospital,” he said. “The timing is also not typical for benzodiazepine withdrawal.”
Dr. Greene’s opinion dovetails with the analysis of Dr. Lantz, the Baptist Hospital toxicologist who performed Jen’s postmortem exam.
“Looking at her laboratory values, when she came in being dehydrated, with her kidney function test it indicates that she was dehydrated,” Lantz told me. “She had kidney failure and all the complications thereof. It matches fairly well unless there was something else going on.”
Lantz’s postmortem exam, reported on a standard form issued by the state Department of Health and Human Services, checked off manner of death as “natural.” As a matter of course, reports by county medical examiners are reviewed by the state Office of the Chief Medical Examiner, which holds the authority to override the local examiner’s findings. On Jen’s postmortem, Dr. Nabila Haikal, an associate chief medical examiner at the state office changed the manner of death finding from “natural causes” to “undetermined.”
State officials determined that a hunger strike allegedly undertaken by Jen “contributed to her death, and although not strong enough to determine her death as a suicide, a natural classification was also not appropriate,” said Alexandra Lefebvre, the spokesperson with the state Department of Health and Human Services. Lefebvre said state officials based their conclusions that Jen was engaging in a hunger strike on information in Lantz’s report, which in turn comes from detention officers at the jail. Janis, Jen’s mom, has said in the past that she disagrees with the characterization.