Decider, M.D.

In May of 2020, an Oregon prisoner named Anthony White had an unusual request: He asked if he could be “indebted” to pay for a new wheelchair, which he needed because he was a paraplegic. “I have no family or friends in the community to help me with this,” White wrote.

The old wheelchair White had previously been using, a doctor explained in a court filing, had numerous problems: worn-out brakes, a broken armrest, and broken parts that made the wheelchair difficult to push. “The most important medical device for a spinal cord injured patient is their wheelchair,” the doctor wrote.

White’s request went to a committee within the Oregon Department of Corrections (DOC) known as a Therapeutic Levels of Care Committee, or TLC Committee. And the committee, White was told in a short note, denied the request. “You will need to self pay,” wrote a nurse manager.

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White’s experience isn’t unique. Inmates in Oregon state prisons must obtain approval from a TLC Committee to receive everything from fish oil supplements to pain relief medications to medical scans needed to treat a dislocated wrist. And, an analysis of court records shows, Oregon TLC Committees frequently deny requests for care that are not considered “medically necessary” or life-threatening, leaving inmates in serious and excruciating pain with untreated medical conditions lasting months or even years.

Incredibly, many of these critical decisions are made by a single person: Dr. Warren Roberts, chief of medicine for the Oregon prison system. Though the TLC is ostensibly a committee, members typically present cases to Roberts, who solely determines whether an inmate is worthy or unworthy of treatment, according to a TLC committee member. Roberts has explicitly defied judicial rulings demanding that inmates receive medical care.

In response to a request for comment, a spokesperson for the DOC declined to answer specific questions about the healthcare received by White or anyone else incarcerated in Oregon prisons, citing patient privacy laws and pending litigation. The spokesperson said that prisoners “have a constitutional right to medically necessary treatment for serious medical needs,” that the TLC committees do not make “final” decisions, and that “in the event the TLC Committee makes a decision that an AIC patient disagrees with, the patient may request further review of that decision.”

In White’s case, Judge Robert Collins ruled in 2019 that the DOC had “failed to provide adequate medical treatment” by, among other things, suddenly withdrawing White from multiple medications. But even after the initial ruling, the DOC would go on to deny various forms of medical treatment to White, including his request for a new wheelchair.

Two years later, in 2021, the judge had had enough. “The Court has held nine hearings … regarding [the Department of Corrections’] non-compliance with this Court’s orders,” the Judge wrote. Judge Collins then ordered that White be released from prison.

IT’S UNCLEAR HOW OFTEN THE OREGON DEPARTMENT OF CORRECTIONS denies inmates’ requests for health care using a TLC Committee. A spokesperson for the federal government’s Bureau of Prisons, which operates similar committees named Utilization Review Committees, said that “no in-depth analysis has been conducted on the overall volume or percentages of denied cases.” In a response to a list of questions from the Prospect, a spokesperson from the Oregon DOC did not provide any information related to the frequency of TLC committee decisions.

Much of the information about TLC Committees, therefore, comes from court cases. In one court case, Dr. Garth Gulick, who worked for both a primary care facility outside of prison and for the Oregon DOC, explained when and how TLC Committees make decisions in a 2022 deposition.

The DOC divides requests for health care into several categories, or Levels of Care. The first two categories—Level 1 and Level 2—are considered “medically necessary.” Generally, prisoners with medically necessary conditions receive some form of treatment, explained Gulick in his deposition.

But how the Oregon prison system defines “medically necessary” is not the same as how it is defined by other medical institutions. While treatment for conditions such as diabetes is considered medically necessary, there are a host of other painful but not immediately life-threatening conditions that do not meet that stringent bar. Those conditions often fall into a category called Level 3, treatments for which are considered “medically acceptable but not medically necessary.”

“Level 3 gets us in depositions the most,” Gulick explained in his deposition. “Hernias, especially orthopedic procedures. Do you fix it, do you not? … Often it’s pain-based or subjective function-based.”

It’s a different system from how health care works elsewhere, Gulick acknowledged. “When I see my community patients on Friday, they wouldn’t even tolerate levels of care, you know. We don’t prioritize people in the community by, this is life-threatening, this could be life-threatening, or this is inconsequential.”

How the Oregon prison system defines “medically necessary” is not the same as how it is defined by other medical institutions.

The TLC Committees decide whether prisoners can leave the prison to receive health care at an outside location, such as a hospital. This determination, and the way the state of Oregon tracks it, reveals what the state sees as a major priority for prison health care: the budget, not the well-being of inmates. The state tracks how often prisoners receive outside health care as a “key performance measure.” The goal, according to a 2022 publication by Oregon’s Legislative Policy and Research Office, is to keep the percentage of offsite care cases below 1 percent.

This is consistent with issues in other state departments of corrections. A recent lawsuit in Mississippi alleges that the state DOC withheld a terminal breast cancer diagnosis from an inmate to avoid medical treatment. The Mississippi DOC did not comment to HuffPost about the inmate, citing active litigation.

The 2022 report claims that the Oregon DOC uses a “committee process” to make decisions about what treatment individual prisoners with Level 3 conditions will receive. A spokesperson for the Oregon DOC similarly described TLC Committees as being “discussion and consensus-based deliberative committees” in response to a request for comment. The spokesperson said that there were “at least seven” TLC committees, including TLC committees for specific prisons and TLC committees for specific types of healthcare, such as transgender healthcare and dental healthcare.

But the word “committee” is a bit of a misnomer. Even though multiple people meet for the committee meetings, the decisions are ultimately made by Dr. Roberts alone, Gulick testified.

“We just start presenting our cases, in a circle,” explained Gulick when asked to describe a TLC meeting. “Currently we present cases to Dr. Roberts and he decides, and we don’t vote.”

That arrangement wasn’t unique to Roberts, said Gulick, who said he had served on multiple TLC Committees. The previous medical director, Daniel Dewsnup, also made unilateral decisions after hearing from the committee members, Gulick testified.

Oregon’s statutory language for health care in prisons, which allows for the creation of review committees like the TLCs, does refer to the chief of medicine’s overwhelming power: While the committees can “review care and treatment requests on a case-by-case basis … The final authority in any review is the Health Services Chief of Medicine or designee.”

BEFORE ROBERTS BECAME CHIEF OF MEDICINE, he worked as a neurosurgeon, and was perhaps best known for depriving a couple of their sex life.

In 2017, a jury awarded an Oregonian couple $4.5 million after finding that Roberts was negligent when he performed a surgery on Jason Croff designed to alleviate back pain. The surgery left Croff with numbness that affected his ability to have sex with his wife.

It wasn’t the only time that Roberts was found to be negligent when operating on patients. When practicing in Colorado, Roberts conducted a surgery in 2007 that ultimately led to him receiving a “letter of admonition” from the Colorado Medical Board in 2011. During the surgery, Roberts “failed to recognize inadequate positioning” of screws in the patient’s spine, which then had to be corrected later by a different surgeon. The letter warned Roberts that “any repetition of such practice may lead to the commencement of formal disciplinary proceedings against your license to practice medicine.”

Roberts left Colorado and began practicing in Oregon in 2011. In 2015, the Oregon Medical Board considered whether to take disciplinary action against him. The board cited the experience of five of Roberts’ patients and alleged that he had violated the Oregon Medical Practice Act. These allegations included that Roberts had performed a spinal surgery in 2011 that was not “medically necessary,” and that Roberts had “displayed substandard surgical skill by failing to place 3 out of 4 pedicle screws in the correct location” during a separate 2011 surgery.

Ultimately, the Oregon Medical Board and Roberts reached an agreement in 2019. Roberts would get to keep his medical license, but he would also be subject to conditions. He would be required to complete 40 hours of “continuing medical education,” and be required to complete a mentorship program for “a minimum of one-year” with a physician. In 2021, the agreement was modified and some of the conditions Roberts was subjected to were terminated, although other conditions remained in place.

A spokesperson for the Oregon DOC supplied four letters of support for Roberts, three from top officials within the department. The Oregon DOC also said that Roberts was certified by a third board—the American Board of Neurological Surgery. A spokesperson for the American Board of Neurological Surgery said that the board had investigated Roberts but “decided not to take any disciplinary action.”

In December of 2020, Roberts began serving as the chief of medicine for the Oregon DOC, a spokesperson said. By virtue of his position in the DOC, Roberts’s judgment is deemed good enough to make monumental decisions in the lives of the thousands of inmates in custody at Oregon State prisons.

OCTOBER 2020 WAS A TOUGH MONTH for White Eagle Atsadi, an inmate who had been chronically incarcerated before ultimately being released in 2023. (Atsadi changed his name; when he was incarcerated, he used the name Richard Weaver.)

First, he contracted COVID-19, a perpetual fear of his because of the cramped conditions inside the prison. Atsadi’s pre-existing conditions, including asthma and chronic bronchitis, put him at significant risk. In a lawsuit about Atsadi’s medical treatment, an expert witness who is a medical doctor, Mark Baskerville, testified, “Normally every day when he’d go out to the yard he would easily be able to (inaudible) around the track several times walking … Post COVID he can’t go up a flight of stairs without becoming short of breath and coughing.”

Tantalizingly, Atsadi had written in an affidavit in the lawsuit, prisoners had been put to work making face masks, but were not allowed to use the masks themselves because they were told that they were “only going to staff.” To add insult to injury, “we saw hardly any staff wearing masks,” Atsadi wrote.

That same month, Atsadi also injured his wrist. “He feels like something’s popping in and out,” said Baskerville. The wrist injury had been diagnosed as a sprain and treated with a splint, but “over time the symptoms have persisted,” Baskerville said in court testimony, suggesting that Atsadi might need an MRI. It took four months to get an appointment with an orthopedic surgeon, who diagnosed it as a torn ligament, not a sprain, and recommended surgery.

Baskerville identified several issues with the medical care that Atsadi was receiving in prison. One was the prison’s tendency to ration the inhalers he used to address his shortness of breath. “It baffles me why they’re so stingy with the Albuterol inhalers,” Baskerville said.

Each inhaler could only operate a certain number of times, and Atsadi was given one inhaler every four months, even though his medical conditions required him to use albuterol whenever his symptoms occurred, Baskerville said. “He needs inhalers. And he can’t be limited to, you know, two puffs or four puffs a day.”

The overarching medical issue, the issue that defined Atsadi’s time at the prison, was his chronic pain. The wrist injury and COVID only compounded the symptoms he had experienced for years while in custody. “My average day is pain,” Atsadi told The American Prospect in an interview.

“He’s someone that definitely needs to be out to see a specialist,” Baskerville said. “They’ve never really gotten control of his pain. In fact, talking to him this morning … he says he’s really not on any pain medicine.”

Before his lawsuit, Atsadi would routinely request medical treatment from the prison’s medical staff. At least three of these requests were denied by TLC Committees between 2015 and 2020, court records show.

Atsadi had been part of a May 2020 lawsuit regarding the prison system’s handling of COVID. He later agreed to dismiss those claims, but used the lawsuit as a vehicle to raise issues about the prison system’s treatment of his medical issues. To defend the medical care offered to Atsadi, the DOC turned to Roberts.

“Providing appropriate care and treatment to [Atsadi] has been difficult due in part to him contracting and recovering from COVID-19 through much of October 2020 and also due to the logistical challenges of scheduling appointments with outside specialists during the pandemic,” Roberts wrote in a declaration. “Another difficulty in treating [Atsadi] is that he consistently asks for new providers following disagreements with their treatment recommendations.”

Atsadi “is entitled to adequate medical care for his medical conditions, and it is my opinion that he is receiving such care,” Roberts wrote.

ATSADI FOUND A SYMPATHETIC AUDIENCE with Oregon Circuit Court Judge Claudia Burton, who came to the conclusion that Atsadi’s medical care violated the federal constitutional restriction on cruel and unusual punishment, as well as the Oregon state constitution.

The DOC’s “entire defense of its medical treatment of [Atsadi] was based on the testimony of Dr. Roberts,” Judge Burton wrote in a January 2021 ruling. Roberts, she claimed, “is simply not a reliable witness.” Burton added that, at the time of her ruling, Roberts was out of compliance with his agreement with the Oregon Medical Board, which allowed him to keep his license under the condition that he complete a year-long mentorship program which involves meeting with the mentor on a weekly basis.

But “Dr. Roberts has not had a mentoring physician since July of 2020,” Judge Burton noted, despite conducting a physical examination of Atsadi and providing care to prisoners. “These activities would not appear to comply with paragraph 4.1 of the corrective action agreement,” she wrote.

Burton ordered the prison to offer adequate access to inhalers, to “implement effective pain control measures for [Atsadi’s] wrist,” and to follow the recommendations of a pulmonary specialist, an orthopedic surgeon, and a pain control specialist.

The DOC did not follow the judge’s orders, according to Atsadi and his legal team.

On “around” February 15, 2021, Atsadi’s lawyer’s office “began receiving a series of increasingly more urgent messages from [Atsadi],” his lawyer wrote in a declaration. “He was in severe back pain, could not walk, stand, eat, go to chow, and has been screaming and crying in pain for days.”

Despite having more than two weeks to implement the judge’s initial order, the only drug Atsadi had been offered to manage his pain was Toradol, his lawyer said. The problem with that particular drug, Baskerville wrote in a declaration, is that Atsadi had “active peptic ulcer disease,” and according to the FDA, Toradol causes side effects that “can be fatal” for individuals with that condition.

“This is negligent medical care,” Baskerville wrote.

Having received the favorable ruling, the DOC continued to deny Atsadi’s request for medical care.

After hearing arguments on February 17, Burton issued her first of three additional rulings. Burton found that Atsadi “has not had effective pain management for his wrist, neck and back concerns,” in violation of her initial ruling. Burton ordered the Department of Corrections to refer Atsadi to a clinic called Salem Pain & Spine Specialists.

Two days later, on February 19, the court ruled that the DOC had “not effectuated” her earlier order. Burton yet again ordered the jail to refer Atsadi to the clinic.

As the legal case moved forward, the prison system took advantage of his wrist injury to retaliate, Atsadi claimed.

At the second emergency hearing, Atsadi’s lawyer informed the judge that the DOC had taken away a wheelchair Atsadi was using to move around the prison and given him a walker instead. In a court filing, Atsadi said that because of his wrist injury, using the walker, which requires someone to lean on it using their hands and arms, had “caused severe pain and left me unable to go to chow or medline.”

In her February 19th order, Burton ordered the DOC to “immediately provide a wheelchair and an aide.” That order was not complied with, Burton ruled in a third emergency order. “The evidence before the Court is that [the DOC] did not assign [Atsadi] an aide,” Burton wrote, and for the second time, she ordered the DOC to “immediately provide a wheelchair and aide.”

Burton came under fire for her rulings. An Oregon state lawmaker, Rep. Janelle Bynum, wrote a letter to Oregon’s chief justice claiming that Burton’s ruling against Roberts was an attempt “to erase the credentials of African American professionals.” Bynum demanded that Burton apologize, and said that Roberts “is one of the few people I trust to begin taking the care and welfare of our AICs (Adults in Custody) more seriously.”

In a June 2022 letter to the American Board of Neurological Surgery, Bynum cited decreased costs as one of the positive changes Roberts had brought to the DOC. “His service in the Oregon Department of Corrections is greatly needed and has brought overdue change to how medicine is practiced at our facilities,” Bynum wrote. “It has also brought us much-needed cost savings so that we could deploy resources more effectively in delivering care.”

Oregon’s Attorney General’s office took action against Burton and filed a motion asking for a new trial of Atsadi’s case. The purpose of the trial, according to the motion, was to “correct the record with respect to the findings concerning Dr. Roberts’s credibility.” Burton’s rulings “have a negative impact on Dr. Roberts,” the motion claimed, although the Attorney General’s office said that DOC would “ensure that all court-ordered outside consultations are provided to the extent that they have not already been provided” and “continue to follow the recommendations of the court-ordered pain specialist, orthopedic specialist, and pulmonology specialist.”

Ultimately, Burton retired as a circuit court judge. In her June 2022 letter, Bynum said, “Judge Burton was effectively censured for her callousness and taken off future Department of Corrections cases. I believe this measure sent a signal to other judges to think carefully about their actions while serving and to challenge their own biases.”

A new judge, Donald Abar, took over the case. On “around” March 5th, the DOC allegedly stopped providing Atsadi with pain medications, Atsadi’s lawyer wrote in a legal filing. The lawyer also claimed that the DOC had not implemented the recommendations of the specialists that Atsadi had seen following Burton’s orders.

The new judge was not convinced. “The Court finds the defendant has complied with all four of the medical treatments ordered,” Abar wrote. “Although the treatment received is not to the plaintiff’s satisfaction, the defendant has nonetheless complied with the Court’s orders.”

Having received the favorable ruling, the DOC continued to deny Atsadi’s request for medical care using their TLC Committees. “On May 17, 2021, plaintiff was denied care including a neurosurgery evaluation for his back condition and chronic and neuropathic pain by the TLC,” Atsadi’s lawyer wrote in a subsequent federal lawsuit, adding that “the TLC told him he could pay for the evaluation himself instead.”

Ultimately, Atsadi was released from prison in 2023 after a federal court ruled that his lawyer did not provide him with effective counsel when he originally pleaded guilty to attempted murder and robbery charges.

THE LAWYER WHO REPRESENTED ATSADI, Tara Herivel, has a track record of helping Oregon inmates win cases against the Oregon DOC regarding their medical care. But as her clients have found out, even a judicial order isn’t enough to compel the department to provide health care.

Like Atsadi, Michael LaSeur was an Oregon inmate whose requests frequently went before a TLC Committee. Many of LaSeur’s medical issues stem from his time in the U.S. Army during the Iraq War, when he was “blown up twice,” crushing several of his cervical discs.

While serving in Iraq, LaSeur said that he killed two children—a boy and a girl—who had explosives strapped to their bodies. LaSeur was subsequently diagnosed with PTSD, and he said that he frequently experienced “flashbacks and nightmares.” He later told a judge that he became addicted to pain medication, until a doctor stopped prescribing the medications, which led him to rob a pharmacy and ultimately end up in prison.

While LaSeur was incarcerated, the Oregon TLC Committees frequently denied his requests for health care. In May 2016, October 2016, and March 2020, the committees denied requests for the medications tramadol, gabapentin, and baclofen, respectively. In December 2017, February 2018, and December 2022, TLC Committees denied an MRI scan. LaSeur was also denied other forms of health care by TLC committees, including a neurosurgery consultation and a CT scan.

LaSeur experienced a brief moment of hope after his attorney sued the Oregon DOC, and won. In August 2023, an Oregon judge found that the DOC’s denial of health care constituted cruel and unusual punishment.

In her ruling, Judge Jenefer Grant paid particular attention to the actions of the TLC Committee. The DOC, “through the auspices of the TLC and particularly in regard to the refusal to allow a cervical spine MRI, has intentionally interfered with, delayed and denied access to care requested or prescribed by Plaintiff’s medical providers,” Judge Grant wrote. The judge ordered the DOC to provide LaSeur with a variety of different types of medical care.

In November, LaSeur was back in court. A TLC Committee had denied his request for fish oil, which had been prescribed by a medical doctor. LaSeur’s attorney said that many of the August orders had not been followed, including that the inmate receive a psychiatric evaluation for PTSD and begin a trial of a medication called gabapentin, which provides relief for certain types of pain.

“Even the seemingly littlest things, [the DOC] has either not completed the orders or full-bore rejected them,” LaSeur’s attorney said.

LaSeur said in a court hearing that the prison’s medical staff told him that a judge’s order was not enough to trump their authority as medical professionals.

“Since the end of the trial, it’s been nonstop trying to get medical to do anything,” LaSeur said. “I know that when a judge says something, it’s supposed to be followed, but then, you know, then they turn around and they do, like, little bits and pieces right before a hearing, and then that’s it.”

LaSeur added that when he communicated with the DOC’s medical staff, “pretty much what I get back is saying that the judge is not a doctor and doesn't know anything about medicine or medication… that was said by two of the doctors here.”

In the hearing, Judge Grant told LaSeur that she believed that her judicial orders would allow him to receive the health care he needed. “The thing is though, the judge has the last say,” she said.

Although Judge Grant said that she was “willing” to consider ordering LaSeur’s release if he continued to not receive health care, such a step was not her “preference.”

“I think DOC will actually treat you, rather than release you,” the judge told LaSeur. “Because as you have pointed out, they do manage to do things that are ordered right before court.”

The second order was ineffective too, and by January the DOC still hadn’t prescribed gabapentin at an effective dosage. On January 17, 2024, the Judge ordered the DOC to prescribe 300 mg every eight hours, which was to be increased if necessary.

The legal fight is still ongoing, and in March, the DOC received a stay from an Oregon appeals court that temporarily paused Judge Grant’s orders.

To support their application for a stay, the DOC turned to Warren Roberts, who declared his intention to decline to implement Judge Grant’s order regarding LaSeur’s gabapentin prescription.

“The trial court’s orders interfere with the provision of medical care,” Roberts wrote in a March 2024 declaration. “At the increased dosage, the risk of adverse consequences increases dramatically.”

“I am unwilling to authorize such a prescription, nor will I order any member of the medical staff to do so,” Roberts added.