And here’s the second installment of my ongoing saga of incarceration in the TDCJ. I’m really not trying to whine. Really, but this is such a great way to let the reader know the things that are going on in here that no one besides God will ever see. And unless we write it down and something changes, these things will continue, and sooner or later, more lives will be lost.

What I’m going to talk about today is very disturbing, and well, to be honest with you, after seeing the way things work in here, while my story may shock you, it comes as no surprise to me. I’ll be telling you a little more about the medical staff we have here, and while a few of the nurses and other staff are really great, dedicated professionals, there are also some bad apples. Okay? Here we go.

A certain inmate, we’ll call him “Kris” vas on thie sidewalk on September 14, 2017. He was walking back to his dorm when Officer W. noticed him walking a little wobbly. I’ll let him tell you what happened from there.
“She asked me if I was okay, and I told her no. She sent me to the infirmary. At that time I was seen by Nurse T. and Nurse B. They administered an EKG because of recent problems I had with my heart. Just a couple of months ago, I had a stent put in a major artery. After the test, they both left the room for a minute, and then came back and told me that the reason I had numbness on my right side and was walking funny was because I’d probably hurt my shoulder! I told them I didn’t think I’d done anything to my shoulder to hurt it, but honestly, my mind wasn’t working so good, and, hey, they’re the experts, right? So, I was sent back to my cell without any further treatment. Even walking back to the dorm, I was still stumbling and dizzy, and I couldn’t feel anything on my right side. My buddy, Brad, noticed I was walking crazy and asked me what was going on. I told him how I was feeling, and he said, ‘I think you’re having a stroke.’ But I’d just been seen by two registered nurses, and they didn’t see that. Brad and I went back to the building, and he told Officer S. of my situation and asked him to check on me. He’d come by about every hour, and each time, I told him I wasn’t feeling any better.

Later that day, I had to turn back out to medical to get my afternoon insulin injection, since I’m diabetic. At this time, Officer S. noticed the right side of my face was drooping, and he called the infirmary officer and told them he thought I was having a stroke. I went in to medical, and they took me into the little E.R./examination room like the one you probably had at your high school nurse’s office. Nurse T. asked me why I was back, but noticed my mouth was drooping on the right. But even after this observation, the nurses still refused any further treatment on me and they told me that I’d have an appointment to see the doctor the next day.

“As I walked back to my housing, my friend, Powers saw me and knew something was wrong right away. He asked me what was wrong, and I told him about my numbness and slurred speech. He also saw me stumbling down the sidewalk, and guess what he said…” It sounds like you’re having a stroke.” So, I told him what the nurses had said, and he helped me walk back to my dorm. This was just before 5:00PM in the evening, which is what time the infirmary closes for the day. I went back to my cubicle and prayed and prayed that God would heal me so I could go home to my family and not die in prison, but I also told him that if he was ready to take me home, just come on and take me.

“I stayed in bed through the night. The infirmary opens early for insulin shots an pill window at 5:00AM, but the doctors don’t come until later. I went down at five to get my insulin shot, and right away they kept me there until Dr. Tupa came to work. As soon as she saw me, she ordered anambulance to take me to the local hospital in Cuero where I was, of course, diagnosed as having a stroke. I was very lucky. God must have been watching over me the whole time, because even with no immediate treatment, the stroke was very minor and didn’t do much damage. I’m still getting my words a little slurry, and I walk with the help of a cane, but I’m not paralyzed or dead.”

As you can see, even in the beginning, these nurses saw Kris and either completely missed or deliberately ignored the symptoms that several other non-professionals immediately recognized as a stroke. Was getting home on time more important than this man’s life? And now, this man will have to take these issues with him wherever he goes for the rest of his life, unless he miraculously makes a full recovery.

I don’t know how many other people are misdiagnosed, but Kris is probably not the first, and not the last either. Also, it was in the high 90’s the day he had his stroke. There’s sure no way the TDCJ is going to admit this episode was a “heat-related” issue, because they’re already in hot water with federal Judge Ellison to take better care of their wards.
I thank God that such an incident has never happened to me, but I sure feel sorry for those who are going through this. Their health is at risk. And here’s the thing; getting misdiagnosed in the world would be a huge deal. Somebody would be getting sued, but in the TDC, it doesn’t seem very important, and it never seems to get dealt with.

One of the reasons for this is the way the law is in Texas. In order to sue a nurse or a doctor for malpractice in this state, you have to have another professional healthcare provider answer a series of questions that basically acknowledges that the original provider committed malpractice. In the freeworld, you would simply go to an attorney who would direct you to a physician, or you’d go to another doctor and pay them to examine you and determine if your original care was substandard. In the TDCJ, unless you are a person of some means and can afford to jump througn the hoops to make it where an outside specialist can come and see you (virtually a doctor house-call arranged from behind bars), your only “second opinion” would be coming from the same people who screwed you up in the first place. If you COULD get that free-world doc to come in here, that would be something, because, I’ve never seen it happen in my time here. That means the odds of the courts ever having a hand in holding the TDCJ accountable for the malpractice of its physicians are slim and none.

Now let’s take the facts of Kris’s case and run them down from the standpoint of seeking redress for the obvious malpractice of the nurses who observed him in the first day he suffered his stroke.

First, he would have to file the Step-1 Grievance. As you’ve probably already read, this grievance almost always comes back with “insufficient evidence to support your claim.” They MIGHT acknowledge that Kris had a stroke, but they would say he had no proof that he’d been seen by any nurse, or that the nurses didn’t treat him. A common ploy used by staff at this point is saying that they tried to help the inmate, but their help was refused. This grievance usually takes a couple of weeks to get back. (The TDCJ has 3O days to answer the grievance, and they can ask for extensions by simply giving notice that they need more time to investi- gate.)

Then the inmate has to file a Step-2 Grievance. This is to fulfill the requirement of the law to exhaust “administrative remedies” before a suit can even be considered by the courts. The Step-2 is almost always answered like this: “An investigation was conducted at the unit level. No additional evidence or information was received to warrant a different finding than was received.” This is because you forgot to submit the video from your cellphone of the nurses refusing treatment, right?! (Which, incidentally, would get you more time in prison since possession of a cell phone, along with other types of contraband, is a felony.)

So, the TDCJ has another 30 days to answer the Step-2, and they can ask for extensions again. It typically takes about 3 months to get both answers back on a substantive grievance issue. Keep in mind that our friend, Kris, has been debilitated by a stroke, that he is in the midst of transport to different medical facilities, and he is surrounded by “caregivers” that certainly aren’t empathetic to trying to find him a grievance form, much less testify on his behalf.

Here we are. The grievances have come back. Now what. Now Kris, who now walks with a cane and has some degree of brain damage, is required to go down to the law library and begin researching his case. He dropped out of high school, reads on a fifth grade level, and the only thing he knows about the law is what he learned when he got thrown in county jail and was told over and over how he needed to sign for this 15-piece, because if he didn’t, they’d give him 99.

Let’s just suppose for a minute that Kris somehow bungles his way into finding the right cases with relevant caselaw. What he will learn is that within 30 days of filing his case in court, he will need to produce this letter from another TDCJ doctor that says the first TDCJ doctor (or in this case, nurse) nearly killed him through incompetence. If the letter is not forthcoming, the court will dismiss the inmate claims on a motion… NOT from the nurse’s personal lawyer, but from the Attorney General of Texas, because he’s the one who represents any suit brought against an agency or agent of the State of Texas. Are you starting to see why nobody in their right mind tries to fight the system? Even powerhouse law firms with deep pockets hesitate to take on these people. What chance has John Doe Prisoner?

The sad truth is that the present avenue of complaint and redress for the TDCJ prisoner is badly broken by well-intentioned, but overly state-biased policy and law. I couldn’t agree more that certain safe guards need to be in place so there is not frivolous litigation that consumes the court’s valuable resources. At the same time, there has to be away to streamline and facilitate the complaint process so that legitimate problems get addressed and systemic corruption or flat-out incompetence can be discarded. I think an independent agency that investigates grievances is the firststep. But maybe there could be a particular magistrate or judge that deals with nothing but prison issues if the grievance process doesn’t satisfactorily resolve the problems.

Without a doubt, lay-people on the sidewalk shouldn’t be doing a better job of diagnosing stroke victims than the people paid by your fax dollars to do that work.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez