Medical Neglect

My Husband Has Cancer, but the Prison Is Not Treating Him

Prisoner Legal Aid

If the prison knows he has cancer and is letting the treatment slide, you can act this week. He can file an emergency request that the warden has to answer within three days. You can request his medical records yourself. If the illness is serious enough, his family is allowed to prepare a request for compassionate release. Each of those leaves a paper trail, and the paper trail is what everything else depends on.

Most of what follows is for a federal prison, because that is where the rules are written down in one place. If he is in a state prison or a county jail, the forms have different names, but the same idea holds: get it in writing, keep a copy, and do not let the clock run out.

Start with what you can do today

Write down what you know, with dates. When was the diagnosis? What treatment was ordered? Which appointments were scheduled, and which ones were missed? What did staff tell him, and when? Ask him to keep his own notes, and to keep a copy of every request slip he turns in.

That list sounds small. It is the thing a lawyer will ask for first, and it is the thing families almost never have.

Ask him to file an emergency request

In a federal prison the formal written request is called a BP-9. The BP-9 is due within 20 calendar days of the incident. Calendar days, not business days. For a missed oncology visit or a treatment that stopped, the "incident" is the missed care, so the clock is short.

There is a faster track. If it threatens his immediate health or welfare, the Warden has to answer by the third calendar day. Untreated cancer is about as clear a case of that as exists, so he should say so in plain words at the top of the form: what treatment was ordered, what has not happened, and that the delay threatens his health.

Two more rules help him:

• One issue per form. Unrelated issues on one form get the whole thing sent back unanswered.
• Silence is not a dead end. If the deadline passes with no answer, he may treat that as a denial and move to the next level.

Our page on the grievance process walks through each level of appeal.

Get his medical records yourself

Almost everything he does has to happen from inside. This is the one thing you can do from home.

You can make the request yourself as his authorized representative. You need his written authorization dated within three months of the letter, plus the identifying information the regulation lists. That rule is 28 C.F.R. § 513.63.

Write FREEDOM OF INFORMATION ACT REQUEST on the letter and on the envelope both. Say which records and roughly what dates. Ask for the oncology referrals, the scheduling records, the sick call slips, and the doctors' notes. Send it by certified mail and keep a copy. Our guide on getting medical records from a jail or prison has a sample letter.

Those records show whether a doctor ordered treatment and the prison did not deliver it. That gap is often the whole case.

When delay becomes a legal problem

The Supreme Court held in 1976, in Estelle v. Gamble, 429 U.S. 97 (1976), that deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment. It also said it counts whether it came from the medical staff or from officers who delayed his access to care or interfered with treatment he had already been prescribed.

Here is the hard part. Poor care, a wrong diagnosis, even real negligence is not automatically a constitutional violation. The Court said so directly. Something more than a mistake has to be shown.

The test is what staff actually knew. In Farmer v. Brennan, 511 U.S. 825 (1994), the Court said an official is responsible only if he knew about a substantial risk of serious harm and did nothing reasonable about it.

You may be thinking that you can never prove what a guard or a nurse was thinking. You do not have to. Nobody has to produce a confession. A court may find staff knew because the risk was obvious, and a risk that was longstanding, well documented, or already noted by the facility is exactly the kind a court may find they knew about.

A cancer diagnosis in his own chart, a treatment plan a doctor wrote, and a stack of requests that went unanswered is that kind of record. That is why the notes and the copies matter. For more on the standard, read what deliberate indifference means.

In a federal prison there can also be a negligence claim against the United States. That claim starts with a written claim to the agency. Two years to present the written claim to the agency. Then, if it is denied, six months from the date that denial was mailed to file suit. And the number written on the administrative claim is a ceiling on what can be recovered later, so nobody should fill in that form in a hurry. Our article on denied medical care in federal prison covers that track.

The grievance has to come first

The grievance chain is not optional paperwork. Federal law bars the lawsuit until the available administrative remedies are finished. That is 42 U.S.C. § 1997e(a), and it applies to a state prison or a county jail as much as a federal one. A case that skips this step is usually dismissed. So even if you are sure this will end up in court, the BP-9 is still the first move.

Ask about compassionate release

If the cancer is serious, a sentence reduction may be the most direct way to get him real treatment. Under 18 U.S.C. § 3582(c)(1)(A), a court can reduce a federal sentence for extraordinary and compelling reasons. He can ask the court himself after he has used up his appeals inside the Bureau of Prisons, or after 30 days from the warden's receipt of his request, whichever is earlier.

The request to the warden goes in writing. It should explain the circumstances and include a release plan: where he would live, and how he would get and pay for medical treatment. That is 28 C.F.R. § 571.61, and the same rule says the Bureau of Prisons processes a request made by someone else on his behalf the same way. When the request is based on his medical condition, the next rule, 28 C.F.R. § 571.62(c), says staff shall expedite it at all levels.

If he has a terminal diagnosis, federal law gives the family more. The Bureau of Prisons must, within 72 hours of the diagnosis, tell his family about his condition and tell them they may prepare and submit the request for him. It must give family a chance to visit within 7 days. If he is too sick to write the request himself, family members may prepare and submit it. Those duties are in 18 U.S.C. § 3582(d).

On the prisonerlegalaid.blog side we keep a full guide to compassionate release.

What to do next

Today: write the timeline, and get his written authorization in the mail so you can request his records. This week: ask him to file the emergency BP-9, and keep a copy of everything. If the diagnosis is serious, start the compassionate release request now. It does not have to wait for the grievance.

If you want someone to go through his situation with you, request a free case review or call Charles Christopher at 786-408-5073. We prepare the paperwork and connect families with independent civil rights attorneys. If you need the first steps on paper, our free First 72 Hours guide is a good place to start.