Indiana Transgender inmate's suit puts light on prison health care Case raises difficult question of how to balance patient care and security

By Kristine Guerra The Indianapolis Star INDIANAPOLIS (AP) - Christa Allen wasn't your typical inmate. Back in 2002 - four years before she was sentenced to time in the Rockville Correctional Facility - Allen had undergone a male-to-female gender-reassignment surgery. Shortly after she entered Rockville, Allen explained her medical situation to prison officials and doctors. Specifically, she informed them that the doctor who had performed the surgery had prescribed her a female hormone as well as a vaginal stent. The stent was medically necessary, she said, to prevent closure and loss of tissue. Not using the stent, she told them, could result in medical complications that could require a second, costly surgery. How prison doctors and officials responded is now the subject of a protracted legal battle that raises provocative questions: What level of care should be afforded prison inmates and should it be lower than the general public? And how do doctors working for the correctional system balance two sometimes competing priorities: patient care and security? Prison officials and doctors initially allowed Allen to use the stent, which should be removed only to be cleaned. But they decided shortly after that it was a security breach. So, they told her she could use a vibrator as an alternative. But months later they determined that, too, was a security issue. As a last resort, prison officials told her she could use a tampon. About nine months into her incarceration, Allen told the facility's medical staff that she was in pain and was experiencing vaginal bleeding. She needed to use the stent, she told them. But prison officials and her prison medical doctors decided it was not medically necessary. The Indiana Department of Correction's medical director told her in a letter that although not using the stent could result in some complications, its use was not necessary to provide the basic and necessary health care given to prisoners. Allen, 47, served a year-and-a-half sentence for identity deception. She was released from prison in late 2007. By then, it was too late to continue the treatment. Her other option would be another reconstructive surgery that her doctor estimated would cost as much as $120,000. Allen has declined through her attorney to comment to her case to The Star. The surgeon who performed her surgery was not available for comment. But details of her case are laid out in court documents. Allen filed a medical malpractice lawsuit against the prison doctors. A Marion Superior Court judge dismissed the suit. But Allen appealed. In November, the Indiana Court of Appeals sided with her, saying there was no clear reason for preventing her from using the stent or the vibrator. More broadly, the appellate judges ruled that the standard of care for doctors should not be different regardless of where they're practicing. Civil and prison rights advocates agree, saying access to adequate health care should not end when a person enters prison. Dr. Josiah Rich, professor of medicine at Brown University and co-director for the Center for Prisoner Health and Human Rights, said that doctors who treat prisoners should follow the same standard of care as those who treat people from the general public. "Health care should not be determined whether you're incarcerated or not," he said. Gabriel Eber, staff counsel at the American Civil Liberties Union's National Prison Project, agreed. "When we put someone in prison, we have an obligation to care for them. We have an obligation to keep them healthy," Eber said. "It's not only the right and moral thing to do. It's what the Constitution requires." Department of Correction spokesman Doug Garrison said he could not comment on Allen's case because of pending litigation. The agency's policy, he explained, is to provide all medically necessary care. That includes evaluating, diagnosing or treating a serious illness, injury and disease or its symptoms. For those who started treatment before incarceration, Garrison said prison doctors examine them and determine whether to continue or change that treatment. In Allen's case, prison officials decided that allowing her to use a stent or a vibrator was simply a maintenance of a cosmetic or elective procedure that DOC was not responsible for. Experts on correctional health care suggest that Allen's dilation treatment should not have been discontinued. Dr. Marc Stern, former health services director for the Washington State Department of Corrections, said that while he cannot comment specifically on Allen's case, prison medical providers have an obligation to continue a treatment that was already started before a person is incarcerated, if not doing so would cause complications. "For example, if you had your gallbladder taken out and you get arrested, it would be my obligation as your doctor in prison to take the stitches out in a few days," said Stern, who is now a health services professor at the University of Washington's School of Public Health and regularly consults with the U.S. Department of Justice and U.S. Department of Homeland Security on matters involving the health care of inmates. That does not mean, however, that prison inmates are necessarily afforded all the medical services available to the general public, said Dr. Robert Greifinger, former medical director at the New York State Department of Corrections. But, he said, those services that are provided should neither be higher nor lower for the quality of care. "Clearly, we don't expect prisons to be providing cosmetic services, generally, but if it's something that is medically necessary, there's a legal obligation," said Greifinger, who also consults with government agencies about prison health care. "The general standard these days is to provide continued treatment, but not to begin treatment." Allen's case treads into a broader dilemma that doctors who treat inmates often face: balancing patient care with prison rules. Deciding what's medically necessary for their patients is easy for a physician, Stern said, but the challenge for them is communicating that necessity to prison officials who view health care as ancillary to the primary mission of ensuring security. "The term you'll hear used is dual loyalty," Stern said. "Primary loyalty to the patient and also primary loyalty to prison officials." Regardless, Greifinger said, physicians have an ethical duty to speak on behalf of their patients. "I've seen cases where that duty is breached," Greifinger said. "It disappoints me when I see that." In Allen's case, the issue wasn't merely whether the doctors viewed the stent as medically necessary. There were specific health and safety concerns. Her doctors, including a gynecologist, felt allowing Allen to use the stent or the vibrator could cause diseases to spread. They feared other inmates might want to use them for non-medical purposes. They also said, according to documents, that the vibrator might cause other inmates to become jealous. Allen is not the first transgender inmate to allege prison officials provided inadequate health care. Nor would she be the first to prevail in court. In 2011, the 7th U.S. Circuit Court of Appeals ruled that Wisconsin's attempt to ban hormone therapy for transgender prisoners is unconstitutional. In a more controversial case, a federal district judge in 2012 ruled that Massachusetts should pay for the sex-change operation of a prisoner with gender identity disorder, citing the inmate's Eighth Amendment right to adequate medical care. On Dec. 16, however, a divided panel of judges from the U.S. Circuit Court of Appeals for the First Circuit overturned that ruling. The prisoner, Michelle Kosilek, is serving a life sentence for killing his wife. Allen filed her medical malpractice complaint in March 2009 against doctors Richard Hinchman, Richard Tanner and Jeffery Smith, who treated her during her incarceration at Rockville and at the Indiana Women's Prison, where she was later transferred. A review panel decided the doctors did not breach their standard of care. Allen then filed a medical malpractice lawsuit against the three doctors in January 2012 in Marion Superior Court. She asked for unspecified monetary damages. The case was dismissed because Allen failed to provide an expert testimony to rebut the review panel's opinion. More significantly, the court ruled that physicians who provide care to prisoners should follow a "different, lower standard of care," according to documents. The Indiana Court of Appeals ruled otherwise. In their Nov. 10 opinion, the appellate judges acknowledged that correctional doctors face budgetary and security concerns that others practicing outside prison don't. But such concerns about the use of a stent or a vibrator, they said, are nebulous. Crawfordsville attorney James Ayers, who represents Allen, said the doctors treated Allen unfairly because she was a prisoner. "They got to decide for themselves what was the appropriate thing to do because she was a prisoner as opposed to treating whatever her condition was the same way they would've treated her if she was living in Marion County," Ayers said. The doctors' attorney, Carol Dillon, of Bleeke Dillon Crandall Attorneys, said in court documents that they did what they could to accommodate Allen's unique medical needs and allowed her to have hormone therapy while she was in prison. When reached by The Star for comment, Dillon said she would first need to consult with her clients. She did not return a follow-up phone call from The Star. The doctors on Dec. 9 filed a petition asking the appellate judges to rehear the case. No decision has yet been announced. Ayers declined to comment about Allen's current medical condition. He said to his knowledge, she has not had another surgery. Published: Wed, Jan 14, 2015