Judge unseals Monterey County Jail’s medical inspections Private health care provider Wellpath plans an appeal

| CRIMINAL JUSTICE

By Royal Calkins

Previously sealed reports on health care inspections of the Monterey County Jail will be made public following a ruling Friday by a federal court judge though the jail’s health care provider plans to appeal.

In her ruling, U.S.District Court Judge Beth Labson Freeman flatly rejected arguments by the Monterey County Counsel’s Office, which had filed papers arguing incorrectly that the reports were private under a judicial protective order and that the court-appointed medical experts, so-called neutral monitors who prepared the reports, objected to their public release. The inspections are part of the federal court’s monitoring of the jail because of years and years of substandard treatment of inmates.

The County Counsel’s Office did correctly argue that some of the monitors had written reports expecting them to remain private, but at least three monitors told the court they had no objection to their release as long as confidential medical information about jail inmates is redacted.

The County Counsel’s Office, which maintains a staff of more than a dozen lawyers, provides legal advice and representation to the county Board of Supervisors and the rest of county government. It rejected Voices’ request for access to the reports earlier this month, citing the same theories that failed to persuade Freeman.

For reasons that still have not been explained, the County Counsel’s Office and Sheriff’s Office failed for years to provide the monitors’ reports to the Board of Supervisors, which is a defendant in the litigation that led to the reports. The same type of reports are routinely provided to governing bodies in other counties under federal monitoring. Elsewhere they are considered public records open to the public and the media. Deputy County Counsel Susan Blitch said attorney-client privilege prevented her from saying why the supervisors here were kept in the dark.

Blitch’s boss, County Counsel Les Girard, said Friday that he was assessing the unsealing order and wasn’t ready to comment.

Late Friday night, hours after Freeman’s ruling, lawyers for Wellpath filed a notice of intended appeal to the U.S. 9th Circuit Court of Appeal and a request for a 60-day postponement of the unsealing. Wellpath lawyer Peter Bertling of Santa Barbara called the monitor’s reports highly sensitive and said unsealing them would violate the privacy of numerous inmates.

Bertling, who specializes in representing military veterans in medical malpractice cases, also requested that future decisions on unsealing the documents be handled by a magistrate judge who is outranked by Judge Freeman.

The inexplicable secrecy attached to the reports was the subject of a July 12 Voices article, part of a package on the ongoing federal monitoring of medical care and other functions of the jail. The monitoring by the U.S. District Court in San Jose is the result of a class action lawsuit filed a decade ago by public interest lawyers representing all of the jail inmates, past and present. It is all a part of what is commonly referred to as the Hernandez settlement, named for former inmate Jesse Hernandez.

The monitoring effort focuses on the care provided by Wellpath, a for-profit, Tennessee-based company that provides health care for the jail under a contract costing the county $15 million annually in addition to costs related to periodic wrongful death lawsuits. The company has come under heavy criticism here and in many other locations nationwide for allegedly trying to boost profits by restricting inmate access to timely health care and referrals to medical specialists.

The unsealing is the direct result of a motion by the San Francisco law firm of Rosen Bien Galvan & Grunfeld, which represents the inmates in collaboration with the American Civil Liberties Union. The lawyers fought to have the records open in preparation for a larger motion headed to Freeman’s court Aug. 24. The motion asks the court to repeatedly fine Wellpath up to millions of dollars for failing to meet dozens of provisions in its contract with Monterey County.

A lawyer in the San Francisco firm, Cara Trapani, argued in court papers that unless the monitoring reports and other heavily redacted court documents were opened to inspection, the public would have no way to assess the validity of the fines Wellpath is facing.

“Finally, family members who have lost loved ones and the public at large will learn the truth about the systematically inadequate care provided to people at the jail,” Trapani said. “Unsealing the monitors’ reports will disrupt a pattern of secrecy that has lasted far too long and shine a light on the urgent need for accountability and immediate reforms at issue in our pending enforcement motion,” the subject of the August hearing.

Monterey County Sheriff Tina Nieto, who took office at the start of the year, acknowledges that health care in the jail has been terrible for years but says her department is highly focused on fixing things. Her emphasis is on working more closely with Wellpath and finding ways to  greatly increase the number of correctional officers working in the jail. The jail houses an average of nearly 900 men and women, including inmates awaiting trial, others serving sentences that once would have been spent in state prison and a large and growing population of inmates with serious mental health problems.

Despite Nieto’s efforts, the jail has seen a record number of deaths in the first half of this year, five, mostly the result of apparent suicides. Families of several deceased inmates have successfully sued the county in recent years for doing too little to monitor suicidal inmates and  provide them with appropriate psychiatric care.

The unsealing motion was supported by affidavits from the families of two inmates — Rafael Lara, who died in December 2015, and Mark Pajas, who died in January 2015 — as well as Monterey County Weekly and the First Amendment Coalition.

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