As an attorney in the late 1990s, Supreme Court nominee Brett Kavanaugh defended a company accused of failing to provide treatment and adequate care to inmates dying of HIV and AIDS in Alabama prisons.
The previously unreported case raises questions about Kavanaugh’s priorities as an attorney in private practice, as well as how thoroughly the Senate Judiciary Committee was able to review Kavanaugh’s record given the limited time and documentation available.
In the questionnaire Kavanaugh supplied to the Senate Judiciary Committee, he did not list the case as one of his 10 “most significant litigated matters” or mention it in a response to a question asking for “the most significant legal activities you have pursued, including significant litigation which did not progress to trial or legal matters that did not involve litigation.”
Kavanaugh’s client, Correctional Medical Services, which was responsible for medical treatment for the state’s prisoners, was accused of improperly providing and withholding vital drugs. Inmates also accused the company of segregating HIV positive inmates from other prisoners as a cost-saving measure, a move they alleged violated the Americans with Disabilities Act.
As an attorney for the defendants, Kavanaugh filed a brief calling for the case to be dismissed on technical grounds, arguing that the patients had no way to receive protection from the courts until they exhausted the prison system’s administrative-review process.
A federal judge said that the complaints by the inmates were “valid allegations” but sided with Kavanaugh’s argument that the inmates must complete the administrative review process before filing their lawsuit. Left untreated, HIV infection will worsen until it progresses into AIDS.
The prisoners accused the company of “deliberate indifference” to their needs, including “a failure to properly administer or provide medications, a total lack of certain prescribed medications, a failure to respond to medical emergencies and a practice of returning inmates who are gravely ill or in ‘end stages’ to their dormitory where no medical treatment is provided.”
In press statements about similar complaints in New Jersey prisons, CMS argued at the time, “We don’t have a cure for AIDS here,” despite the availability in 1997 of many life-saving antiretroviral medications.
Rather than treating inmates with effective protease inhibitors then available, CMS treated patients with cheaper but less effective protocols, including older antiretroviral medications and antibiotics, according to the Star-Ledger.
In 1997, one HIV-positive New Jersey prisoner under CMS care said, “The thing that gets me is, I keep reading about these new medications, these protease inhibitors that people are taking and getting better, but they won’t give them to me in here.”
The Senate Judiciary Committee did not ask Kavanaugh about the case last week during nomination hearings — one of several unexplored areas of Kavanaugh’s career in private practice and politics, as much of the deliberations centered around decisions by the Trump administration and the chairman, Sen. Chuck Grassley, R-Iowa, to withhold hundreds of thousands of pages of his records.
CMS faced numerous lawsuits and complaints before Kavanaugh took its case in Alabama.
In 1997, the Birmingham News reported that the CMS’s mental health director for Alabama prison inmates “twice lost his medical license in other states because of improper sexual contacts with a patient and co-workers.” The company said it addressed the issue by refusing to let the doctor treat female patients without a nurse present.
That year, CMS was also named in a lawsuit by several Alabama inmates sickened after being given the wrong fluid during dialysis. Four of the nine patients eventually died.
That same year, a federal magistrate recommended Alabama’s state prison commissioner file a plan to remedy “unconstitutional treatment of mentally ill inmates” by CMS, according to the Birmingham News. The family of a mentally ill inmate sued the company for “failing to provide emergency medical and mental health services to the inmate.”