In response to a series of cases remanded from the 7th Circuit Court of Appeals, the Southern District of Indiana is attempting to recruit more volunteer attorneys and, in what one observer called a “very progressive” approach, enlist medical professionals to offer expert testimony.
Chief Judge Richard Young of the U.S. District Court for the Southern District of Indiana announced the initiative in February during the federal court’s volunteer lawyer appreciation breakfast. A pro se litigation committee that the court appointed specifically to look into this matter has recently started meeting and Young has begun to reach out to physicians.
Pointing to the cases coming back, Young told the attorneys, “We’re going to be relying on you and others in the future to provide assistance to these people who are in need of counsel and expert witnesses as well. (This is) something that’s being mandated by the Circuit and we’re going to be extra cautious and probably a little more proactive in providing counsel and experts as well.”
The cases mostly involve prison inmates who file pro se complaints charging they were denied medical attention or provided with inadequate care for an injury or chronic health condition. District Courts around the Circuit have been denying the litigants’ requests for counsel and granting summary judgment to the defendants.
“They’re saying, if this person had a lawyer and had some expert, most likely summary judgment wouldn’t have been granted,” Young said.
Monica Foster, chief federal defender of the Indiana Federal Community Defenders, said the 7th Circuit may be concerned about the state and federal government entering into contracts with private health care providers who seem to be motivated more by profit than offering quality medical services.
“What is going on in the prisons is an abomination,” Foster said. “I wouldn’t treat a stray dog like they treat some of these prisoners.”
Among the cases remanded in the past two years was Rowe v. Gibson, 14-3316, returned to the Southern District of Indiana in December 2015. Prisoner Jeffrey Rowe filed a lawsuit against administrators and staff of the Pendleton Correctional Facility for not providing the Zantac he needed to treat his gastroesophageal reflux disease. Rowe requested counsel but was denied and was unable to provide his own medical expert to counter the defendants’ assertions.
The majority faulted the District Court for allowing one of the defendants to testify as an expert witness supporting the defense’s position. In reversing summary judgment, the majority stopped short of ordering a judgment in Rowe’s favor. Instead, the judges urged the District Court to considering recruiting an attorney to represent Rowe and to persuade a “reputable gastroenterologist” to speak with the parties, sit for a deposition and, if necessary, testify.
The ruling sparked national debate because Judge Richard Posner did extensive research on his own about Zantac as well as reflux disease and referred to those findings in his opinion. Judge David Hamilton dissented over the majority issuing a reversal of summary judgment based on the “evidence” the appellate court found through its own research.
James Chapman, attorney and founder of the Illinois Institute for Community Law and Affairs, an organization focused on helping prisoners return to society, believes the 7th Circuit is “coming down very hard” because it wants the District Courts to appoint more attorneys and get them involved in the cases earlier.
In these cases, he noted the litigants are by themselves against well-funded defendants. From their prison cells, the inmates have a difficult if not impossible task to conduct discovery and find expert witnesses while insurance companies of the private prison contractors are usually paying lawyers from large law firms to represent the defendants.
In addition to trying to get attorneys to volunteer their time, Young said the Southern District is also looking to medical professionals for help.
“One of my tasks is to go out to the medical community to try to get some of these hospitals and doctors to get onboard,” Young said. “Of course, as Judge Posner says, it’d be easy for a judge to convince a doctor to donate his time. He might think that, but it’s not reality.”
Chapman applauded Young’s push to find health care personnel to provide expert testimony, calling it “very progressive.”
The 7th Circuit has put the onus on the lower courts to recruit pro bono attorneys. Foster said the volunteer attorneys working on these medical prison cases could bring about much needed change in the system. If these lawsuits start ending in favor of plaintiffs, the prisons might improve their health care services.
“At some point it becomes less expensive to provide adequate medical care than to litigate cases in court,” she said.•