A preventable death

Steven Achen stood at the utilitarian gray Formica counter in the intake area of the Yolo County jail as a Davis police officer filled out the paperwork required to turn his prisoner over to the custody of the jail staff. As part of the standard booking process, Achen was asked questions about his health status. One of his answers was alarming, but not unheard of in that environment. Achen said he had attempted to commit suicide two weeks earlier.

Melinda Peterson, a licensed vocational nurse (LVN) who worked at the jail, was summoned. Peterson filled out a form entitled “Guidelines for Evaluation of a Suicidal Patient.” On that form, Peterson recorded that Achen was receiving mental-health treatment from a Dr. Lee in San Francisco and was taking the psychotropic medication Risperadol along with the antidepressant Zoloft. The LVN also wrote that the inmate was depressed and had attempted suicide earlier by cutting his wrists.

One question on the form asked, “How would you harm yourself?” and Peterson wrote down Achen’s response as “cut wrists or pills.” Peterson directed that Achen be placed on suicide watch, and the inmate was taken to cell 108 in pod A-2 of the facility. Under jail procedures, the suicide-watch status meant that Achen would be in a special, barren “safety” cell without the conventional accoutrements, such as bedding. He also would be checked on by jail custody staff every 15 minutes and monitored by jail medical staff every six hours.

The next day, Kathleen Sindelar, a psychiatric nurse at the jail, assessed Achen’s status and recorded that, in her opinion, the patient could be taken off the suicide watch. Sindelar also logged that Achen gave her a “verbal no-harm contract”—essentially a spoken promise not to harm himself—and Achen was placed in the general population of the jail.

He was confined at the jail a total of 11 days, and during that time, he submitted two written “Inmate Health Services Request” forms asking for his psychotropic and anti-anxiety medications and wrote that he was suffering from “severe attacks from neglect of psychotropic drugs and anti-anxiety medication. Seven days off and feeling in danger.”

Achen also notified a jail sergeant that he was concerned that he might become self-destructive if he didn’t get his medication. Jail staff also were notified that Achen had made at least two phone calls, one to his sister and one to his girlfriend, in which he said he was feeling suicidal or had threatened suicide.

On the 11th day of his incarceration, Achen did not respond to an intercom call notifying him that he had a visit from his sister. A nearby inmate was sent to Achen’s cell to tell him to report for the visit, but the inmate instead found Achen hanging in his cell with one end of a bedsheet tied around his neck and the other end secured to a bar on his bunk. According to the statement of the inmate who found Achen, there was a pool of blood on the floor. Achen was taken to a local hospital and pronounced dead due to asphyxia by hanging.

Achen’s family strongly believes his death could have been prevented and that it resulted from the negligence and incompetence of the medical and custody staff at the Yolo County jail. His family has filed a federal civil-rights lawsuit against Yolo County; Sheriff E.G. Prieto; two jail correctional officers; California Forensic Medical Group (CFMG), a private company that provides inmate health care at the facility; and three CFMG employees, including jail medical director Dr. Asa Hambly.

The attorneys for Achen’s family, Neville Johnson and Douglas Johnson, have spent more than two years investigating and reconstructing the circumstances surrounding Achen’s death. More than 40 sworn depositions have been taken, and thousands of pages of records and internal documents have been unearthed, some only after a court order mandated their release. As a result of the litigation, CFMG has been compelled to reveal that it is named as a defendant in at least 30 other lawsuits pending throughout California. Next month, U.S. District Court Judge David F. Levi will issue a pivotal ruling in the Achen case.

Hambly and the Yolo County defendants say that, at most, they were only negligent and not “deliberately indifferent,” the legal standard required to prove a constitutional civil-rights violation. CFMG, the company that was contracted to provide the jail’s medical services, contends it cannot be held liable and that, among other things, Achen was responsible for his own death.

Achen lived his life with a history of mental-health and substance-abuse problems.

For most of his childhood, his two older sisters, Barbara Gabriel and Jane Deming, had looked out for his welfare after their parents had divorced. At the time Achen was 12, Deming and her husband became concerned about his living conditions and moved from the Bay Area to Los Angeles to bring Achen into their home.

Gabriel and Deming also had been supportive of their brother throughout years of adult substance-abuse treatment, relapses and still more treatment. In 1983, at the age of 25, Achen admitted himself to an inpatient rehabilitation facility for alcohol and cocaine abuse. In 1997 and 1998, he again went through substance-abuse treatment programs. Twice, in August and November of 1999, Achen was admitted to San Francisco General Hospital under 5150 status, the section of state law under which a person who, “as a result of mental disorder, is a danger to others or to himself” is detained for 72 hours for evaluation and treatment.

But about six months before Achen’s incarceration in Yolo County, Gabriel thought her brother finally had turned the corner to sobriety. She had arranged for him to be under the care of a San Francisco psychiatrist who had treated Achen with a combination of drugs that seemed to be effective. “I think he was just beginning to become stabilized with medication for depression that would have helped him not self-medicate with drugs,” she testified.

Achen ended up in the Yolo County jail after he was arrested on domestic-abuse charges after an altercation with his girlfriend, Laura Hamilton. In his police report, a Davis police officer recorded that Achen and Hamilton had been lying in bed and had begun kicking each other. Hamilton also claimed Achen had grabbed her wrists. The officer took pictures of where Hamilton claimed she was injured, but he noted that he saw “no redness or swelling indicating a recent injury” and “no visible injuries on her wrists.”

After Achen was booked into the jail, and his sisters had found out where he was, they debated whether to provide bail. But after talking with their brother’s Alcoholics Anonymous sponsor, they decided against it. In a deposition, Deming said the sponsor assured her that Achen would be safe where he was, that he would detox and that she wouldn’t have to worry about him.

It took the medical staff six days to verify Achen’s prescriptions, and the inmate was finally provided with Risperadol and Zoloft seven days after he arrived. Lee, Achen’s outside physician, also authorized the drugs Klonopin, an anti-anxiety and anti-seizure medication, and Wellbutrin for anxiety. In his deposition, Lee explained that he considered the Risperadol “perhaps [the] most important for [Achen’s] mental stability,” and he wanted Achen “to take it every night regularly” to be effective but that the patient had been taking it erratically. According to Lee, before the confirmation and authorization of Achen’s medications were resolved, Lee had made several attempts to contact medical staff at the jail but was unable to get in touch with anyone who had anything to do with Achen or his medical situation.

The day before Achen was provided his medication, Gabriel, Achen’s sister, called the jail with important information and talked to Sgt. Fred Miller.

According to her deposition, Gabriel told Miller that she had talked to her brother on the phone earlier that day. “I said I was afraid my brother was suicidal, or I said he was going to kill himself or was threatening—words to that effect,” she stated. After she hung up, she said, she had an uneasy feeling and called back. “I’m really feeling scared,” she recalled saying. “If anything happened to my brother, it would really kill me. Make sure he is on a suicide watch or something like that, to that effect,” she said. Gabriel said she was told by Miller, “We will take care of it.”

Peterson, the LVN, stated that Miller stopped her in the hallway and told her that Achen’s sister had called to let them know “he had made a threat of committing suicide,” and Miller asked if Peterson could go down and see him. Although she said she was unsure of exactly what she was supposed to do when Miller told her about Achen’s suicide threat, she met with the inmate. Peterson said Achen denied being suicidal but did request to see a doctor about his medications. Peterson said she put a sticky note on Achen’s medical chart for Hambly to see Achen the next day. In her deposition two years later, Peterson said she wished she had had more psychology training in “the whole realm of psych, knowing what to look for, other than if they are calm, knowing what to do in that situation.”

It would be relevant later that Peterson did not adequately document her interaction with Achen on his medical chart. Procedure required her to complete a patient progress note, a “Nurse Psychiatric Assessment Sheet” and another “Guidelines for Evaluation of a Suicidal Patient” form so the medical staff would be aware of the patient’s evolving status. She later would explain that she “did not know if she was supposed to write it down,” in reference to her evaluation of Achen. It also would be relevant that, in essentially conducting a psychiatric evaluation of the inmate, Peterson had engaged in a process beyond the scope of her LVN license, according to Patricia Reigers, a nursing expert witness retained by Achen’s family to evaluate the incident.

Two days later, a jail officer asked Kyle Snow, who also was an LVN, to evaluate Achen because the inmate had complained to the officer of stress. According to Snow’s deposition, he talked with Achen, who told him he was feeling anxious because his sister was scheduled to visit him later in the afternoon and had never seen him in jail before. “It was my understanding that he didn’t want his sister to see him in jail,” Snow explained.

Snow did not check Achen’s medical chart or take his vital signs, which would have been standard procedure in conducting an assessment of Achen’s condition, according to Reigers. She also pointed out that Snow was acting beyond the scope of his license and that there was not a registered nurse working on-site that Saturday to assess, evaluate or give direction to Snow. According to his deposition, Snow didn’t know that Achen previously had been on a suicide watch or that Achen’s family had reported his suicide intentions to jail staff. Snow testified that if he had known these facts, “I would have placed Mr. Achen on suicide watch.” Instead, he suggested Achen do deep breathing in order to relax.

The deep-breathing recommendation was apparently ineffective in reducing the inmate’s anxiety level, and an hour later, Achen was found hanging in his cell with a bedsheet tied around his neck. Correctional and medical staff responded to the cell and initiated cardiopulmonary resuscitation. Then, Achen was taken to a local hospital and pronounced dead.

Hambly, the jail’s physician and medical director, said he spent about six hours a week at the jail—which has an average daily population of 530 inmates. He also was working another full-time job and working part-time at the Placer County Jail. Hambly did not personally see or evaluate Achen during the 11 days of his stay in the Yolo County jail. Achen also was never seen by Dr. John Zil, the jail psychiatrist who was at the jail four hours a week.

According to court records, depositions and other documents from the case, the attorneys for Achen’s family essentially contend that several key factors contributed to Achen’s death:

• The medical department was understaffed, overworked and inadequately trained and supervised. Medical and custody staff kept inadequate records and patient charts and did not record or otherwise pass on critical patient and medication information to co-workers or the staff doctor or psychiatrist.

• Although state law and jail medical policies routinely were not followed at the facility, employees who failed to follow policy were not disciplined, retrained or otherwise held accountable.

• CFMG and Yolo County had a pattern and practice of providing inadequate medical and mental-health services at the jail. The conditions that led to Achen’s death were systemic and existed before and after the incident.

Yolo County and its employees are represented by Sacramento attorney Bruce Kilday. He said his clients contend they are not responsible for Achen’s suicide because Yolo County contracted with CFMG to provide medical care at the jail, and jail custody staff are required by state law to defer to the CFMG staff on medical and mental-health issues. Kilday also said that “the sheriff’s personnel were consistently responsive to Mr. Achen” and contacted medical staff whenever the inmate expressed concern about his medical conditions. Kilday points out that the Yolo County jail suicide rate of five deaths in 14 years is not out of line with national averages. “While it is certainly possible to criticize the medical care provided in the jail, it is also possible to criticize the medical care provided by many HMOs to people who are not in custody. The mere fact that there have been criticisms does not prove that anyone’s civil rights have been violated,” Kilday concluded.

CFMG and its employees, except for Hambly, are represented by local attorney Jerry Varanini. In response to an interview request, Varanini issued a written statement, noting that the Rules of Professional Conduct for lawyers restricted the information he could discuss. Varanini did point out (as did Kilday) that the health-care program provided by CFMG at the Yolo County jail was and is accredited by the independent California Medical Association and has been reviewed and approved as complying with state law by Yolo County and the Board of Corrections.

Prieto, the sheriff, declined to comment on the litigation but inferred that Achen’s death could not have been prevented. “Maybe he didn’t really want to kill himself. Maybe he just wanted to get somebody’s attention. You never really know what’s going on,” he said.

Hambly has retained his own attorney, Santa Barbara-based Steve Shlens. He also said it would be inappropriate to comment on the pending litigation. According to court records, Hambly essentially asserts that, because he never had contact with Achen, he “did not cause or contribute to the decedent’s demise.” Hambly also claims that he is not liable in his supervisory capacity, as the suit alleges, because he wasn’t the supervisor of the medical department at the jail.

CFMG contracts with Yolo County to provide medical and mental-health services for the county’s two jail facilities. In 2001, the agreement paid CFMG a base amount of $1,241,916. Under the contract, CFMG provides an on-site health administrator, nursing services, a full-time physician’s assistant, a responsible physician, a psychiatrist, a dentist and a mental-health clinician. According to CFMG partner and Director of Operations and Personnel Elaine Hustedt, the company currently contracts with a total of 24 California counties to provide health care at approximately 50 adult- and juvenile-detention facilities.

Documents from the litigation about Achen’s death reveal a dispute between Hambly and his boss, CFMG majority owner Dr. Taylor Fithian, on the issue of who is actually the medical director of the jail. The physician that holds that position potentially could be held liable for monetary damages if the lawsuit by Achen’s family is successful. Although Hambly officially held the title of medical director, he claims Fithian was responsible for most of the duties associated with the position and, therefore, effectively was the medical director. In a pending court motion, Hambly asserts that his position as medical director “did not include any role for Dr. Hambly in the implementation or supervision of the health-care policy and procedure at the Yolo County jail. He had no role in staffing, medication and suicide-prevention policy and procedure within this facility,” in essence, the duties assigned to the medical director.

In his deposition, Hambly testified that he assumed CFMG was performing his responsibilities as medical director and that he would not be able to carry out those responsibilities, in addition to his duties as the only staff doctor at the facility, in the nine hours a week he was paid to work by CFMG. At his deposition, Hambly was shown Yolo County’s official written list of duties required of the medical director. Hambly stated, “It would take considerably more than nine hours a week to accomplish all of the things delineated on this responsibility list.”

But in Fithian’s deposition, he disputed Hambly’s position on the subject. “I have not made any deal with Dr. Hambly to abdicate the responsibilities of the on-site medical director,” he said. In sworn testimony, Hambly also acknowledged that he was responsible for supervising CFMG employees and two lawsuit defendants, Peterson and a registered nurse. But when asked if Hambly reviewed and supervised them to see if they were performing their tasks correctly, he replied, “I did not.” Hambly explained that he assumed CFMG was doing it, but he admitted he didn’t know if the company actually did.

The litigation, which was filed in 2001, has been complex and antagonistic. In January, U.S. Magistrate Judge Gregory Hollows sanctioned, or fined, Yolo County $11,150 for not turning over documents in a timely fashion and not releasing records requested by the attorneys for the plaintiffs. In granting the motion for sanctions, Hollows noted the animosity between the lawyers for the plaintiffs and Yolo County: “Both parties have spilled much vituperative and/or irrelevant ink, requiring excessive judicial resources in attempting to sort fact from hyperbole.” Several thousand pages of deposition testimony have been generated, and the lawyers have their clients on a tight leash: Nearly all the parties have been instructed not to discuss the case.

The most serious—and difficult to prove—claim made by the plaintiffs is the “pattern and practice” allegation. In essence, Achen’s family contends that CFMG and Yolo County consistently have ignored the same problems over an extended period of time. To prove the claim, they must show that the county and CFMG have had other medical-care problems at the jail and that Achen’s death was not a one-time aberration. The plaintiffs’ attorneys claim they have evidence from before and after the suicide that supports their legal theory and that also shows CFMG has had similar issues at other jails in the state.

Before the death of Achen, Sean Minjares worked two separate stints as an LVN at the Yolo County jail, in 1997 and 1999. Minjares said he quit the second time because of the stress level—“what I felt to be too much work for the position I had and too much responsibility for the license I had.” Minjares also worked as an LVN at the Sacramento County jail, where the medical care is run by the county, and he observed that the “mentality” toward patient care was different there when compared with the privately run, for-profit services at Yolo. “[At a] for-profit, you are providing the standards of care, the lowest rung of standard of care and pocketing the rest as profit. [The] county isn’t concerned about that. I mean, they are concerned about the bottom line, but you are not constrained in your patient care,” he said. Minjares also testified that, based on his experience at other jails, Yolo County did not have enough mental-health care at the jail and that he was constantly afraid something bad would happen to a patient.

Registered nurse Sharon Miller, who also had experience working at correctional facilities, including Folsom Prison, worked for CFMG at Yolo County’s jail in 2001. Miller testified that the written procedures for suicidal patients often were not followed. Jail policy required medical staff to fill out a form that had entries for the patient’s blood pressure, pulse and temperature and for describing verbal interaction with the inmate, including whether the inmate had agreed not to harm himself or herself. Miller explained that the form routinely was not filled out and that an assessment of the inmate’s condition often would consist of contacting the inmate over the cell intercom. “And [medical staff] would say, ‘How you doing in there, dude?’ And if they answered, he was OK,” she said. Miller also noticed that the LVNs at the Yolo County jail were doing patient-intake assessments, like the one completed when Achen entered the jail. “Legally, an LVN cannot do an assessment. … And they had LVNs doing assessments—10, 12 a day—and sometimes just handing the paper to the inmate and saying, ‘Fill this out.’ And then [the LVNs] signed it,” she said.

In addition, Miller was concerned that her nursing license could be in jeopardy. “Some of the things they wanted us to do were not in the scope of our practice,” she explained. Miller testified that one of those things was giving medication, such as antibiotics and pain relievers to patients who had not been seen by a doctor. “Everybody was doing it, and I said, ‘I’m not going to do it. It’s not appropriate,’” she said.

About six months after Achen’s death, several Yolo County public defenders said that some of their clients housed in the jail were complaining about their medical and mental-health care. Assistant Public Defender Robert Spangler had a client housed at the jail who suffered from clinical depression and other problems. In a letter submitted to the Yolo County Board of Supervisors, Spangler explained that that he had advised jail staff of the problem but was ignored. He had to go to a judge to seek an order for the client to be treated. After seven months without treatment, the inmate was put on medication.

In another Yolo County jail medical-care dispute in April 2001, Judge Art Gutierrez issued a ruling in a case in which the treatment an inmate was receiving was questioned. “As far as CFMG, I have never been impressed with them. I probably never will be impressed with them in the future. They seem to dodge the issue as far as medical care. They don’t want to spend money to do it. My response is to sue them,” wrote Gutierrez.

The allegations in the suit brought by Achen’s family also resemble those seen in other litigation the company has faced. Attorney Sonia Mercado settled two cases with CFMG in 1998 for $1.5 million. Mercado’s clients were housed in the Ventura County jail and died, allegedly because of inadequate treatment by CFMG for tonsillitis and a sinusitis infection. In both cases, Mercado claimed the patients died from septic shock when the ailments went untreated. “They were given Motrin, and they were treated for headaches when what they needed to do was be in the hospital. One boy actually was sent to the hospital, and the [CFMG] directing nurse requested that he be sent back to the jail because [CFMG must] pay for them while they’re in the hospital, so they didn’t want this particular boy to be in the hospital for long,” explained Mercado. CFMG partner and Director of Finance Dan Hustedt declined to comment about the Ventura County lawsuits.

In 1997, the year the young men died in Ventura County, the salaries for each of the three owners of CFMG were $1 million per year. In his deposition earlier this year, Fithian, a CFMG partner and the company’s medical director, denied that he was in business to make a profit. “I am not in the business to make a profit. I am in the business of being a doctor but not in the business of making a profit,” he testified. Fithian said that he and his partners, Dan and Elaine Hustedt, started the company to provide a quality health-care program. “That has been our mission, our philosophy and the driving force over the last 20 years,” he explained.

CFMG also has been scrutinized by the Mendocino County Grand Jury. In 2001, the grand jury investigated the suicide of a woman at that county’s jail. CFMG provided medical and mental-health care at the jail, and the grand-jury report describes a chain of events with some similarities to Achen’s suicide. The grand jury found that the woman “had voiced suicide threats to numerous persons” including a jail correctional officer, a CFMG nurse and a CFMG psychiatric technician. The report went on to note that “the deceased’s requests for administration of her prescribed medication were repeatedly refused by CFMG,” and that “[CFMG] failed to regard the deceased’s suicide threats as serious, increasing the likelihood of her eventual suicide.” The report also faulted correctional staff for not adequately monitoring the inmate, and recommended that “[CFMG] personnel responsible for patient assessment and/or care should receive further training in the assessment of suicide risk.” A 1998 report by the same grand jury included another jail-suicide investigation and a reported finding that there were medication problems with mentally ill jail inmates that suggested “a breakdown in the recognition of the need for such drugs and their provision in a timely manner.” CFMG partner Dan Hustedt declined to comment about the Mendocino County Grand Jury reports.

There is some evidence that since Achen’s death, mental-health care has become a higher priority at the Yolo County jail. For instance, the 2001 renewal of CFMG’s contract with the county specified increases in the total on-site hours for licensed nursing staff, the psychiatric nurse and the jail psychiatrist.

Yolo County Sheriff’s Department Capt. Tom Lopez provided SN&R a tour of the jail and indicated that suicide-prevention policy has improved, although he couldn’t comment about the Achen litigation. “Any time a lawsuit happens, people’s senses are enlightened,” he said. Lopez has been in charge of the jail for two years and said there had been no in-custody deaths since he took over. Mary Parker, an LVN who was working at the jail during Lopez’s tour, said communication related to inmate health issues between medical and custody staff has improved. “You develop a rapport with the officers, [and] the continuity of care is improved,” she said.

Gabriel, Achen’s sister, said she hoped the family’s lawsuit would instigate further improvements in the mental-health-care system at the Yolo County jail so no one else would have to endure what her family went through. She said the family felt betrayed by what happened to her brother while he was in the custody of the county. “We trusted that they were caring for him, and when I called to make sure that they would put a suicide watch on, I really trusted that that was happening,” she explained.

Gabriel added that the death of her brother devastated the entire family to the point that family members required professional help. “The whole family did their own individual therapy, and I attended a grief group for a year-and-a-half,” she said. She believed that her brother’s incarceration would be a turning point in his life and turn around his addiction problem, as incarceration has for actor Robert Downey Jr.—for the time being. “My brother was kind of like that. He used, and he went on binges, but most of his life was devoted to being in AA and trying to keep sober, which he did for months at a time.”

Achen’s big sister felt that the court system would determine that her brother was not a criminal but that he did have a problem with addiction. She expected he would enter a court-ordered long-term treatment program and then come home, and he and his estranged wife, Talitha Falkenburg, would start a family, like they had all talked about. “It was very devastating,” she said, “because that was not the way I thought life was going to go at all.”