Mar 26, 2013 10:05 PM
LOUISVILLE. (AP) - Six Kentucky hospitals have refused to perform a $56,000 hip replacement surgery on a death row inmate whose execution date could come this year.
Their refusal pits the hospitals' safety concerns against the state's obligation to provide medical care to prisoners, and leaves the inmate's medical status in limbo.
After state officials tried for more than a year to find a facility to perform the surgery on 56-year-old Robert Foley, the University of Louisville Hospital and the University of Kentucky Medical Center turned them down. They were the latest hospitals consulted by the state in an extensive search.
The decisions are noted in a court filing Tuesday. Foley's immediate future is unclear, but he is one of two Kentucky death row inmates whose executions are waiting to be scheduled.
Foley was convicted of killing six people in eastern Kentucky in 1989 and 1991. That's more victims than any other prisoner on the state's death row. His status as an extremely dangerous prisoner was a key factor in the state's difficulty finding a surgeon and hospital, according to the documents obtained through a public records request and a lawsuit filed by Foley.
The quest to find a medical facility for Foley comes as Kentucky is trying to restart executions after a nearly four-year delay. A judge in Frankfort is weighing whether a new one- or two-drug method passes legal muster as a replacement for the three-drug lethal injection tossed out in 2010. Gov. Steve Beshear has received a request to set an execution date for Foley, but cannot act on it until the judge's ban on lethal injections is lifted.
U.S. Magistrate Judge Edward Atkins on Tuesday ordered attorneys to file a schedule for the litigation, but did not set a trial date for the case.
Foley's attorney, Meggan Smith, said she's unsure what happens next.
"He still needs hip surgery," Smith said. "And, he's still in pain."
Because a lawsuit over the hip surgery is ongoing, Jennifer Brislin, a spokeswoman for the Kentucky Justice Cabinet, declined to comment Thursday.
Because Foley is on death row, he's housed in a segregated section of the Kentucky State Penitentiary in Eddyville. He is kept under high security when he's moved elsewhere, and restricted in his movement around the prison. Even with a hip injury, Foley is not allowed to use a walker and must travel by wheelchair around the prison.
Besides the hospitals in Louisville and Lexington, which turned down the state in December and March, hospitals in Paducah, Murray, Madisonville and Frankfort have previously denied requests from the state to perform the surgery.
Kristi Lopez, a spokeswoman for the University of Kentucky Medical Center in Lexington, echoed what other hospitals have said in refusing to do Foley's surgery.
"There were logistical and safety concerns," Lopez said Tuesday.
A University of Louisville Hospital spokesman declined to comment.
The difficulty finding a surgeon illustrates an unclear zone between the law's requirement of medical treatment for inmates and a hospital's ability to turn down those patients, said Rebecca Walker, an associate professor of social medicine at the University of North Carolina in Chapel Hill.
"Everyone would probably agree he ought to get his care somewhere. It's a collective responsibility," Walker said. "Who does it is the question."
Foley's mother, Lois Foley, who lives in Mary Alice in eastern Kentucky, wrote to Beshear multiple times in recent years complaining about her son's treatment by the Department of Corrections and asking for help securing the surgery. She noted that other inmates are taken from the prison for medical procedures, but her son hasn't been.
"Why is Robert treated differently?" she wrote to Beshear on Jan. 9, 2012.
Foley is awaiting execution for shooting and killing brothers Rodney and Lynn Vaughn in his home in Laurel County in 1991. He was also condemned to death for the murders of Kimberly Bowersock, Lillian Contino, Jerry McMillen, and Calvin Reynolds. He shot the four on Oct. 8, 1989, because he thought one of them had reported him to his parole officer.
Foley sued the state in 2012 in an effort to force the state to give him his surgery.
Emails and memos obtained by The Associated Press show corrections officials struggling for a year to reconcile their duty to provide medical care with the political ramifications of spending tens of thousands of dollars for surgery on a man they plan to execute. The hospitals' security concerns became a key problem.
Also, state officials worried about inviting scorn from Fox News pundits if they spent money on a hip replacement for a man who might soon be executed.
Then-Kentucky State Penitentiary warden Phil Parker wrote in an email on Nov. 22, 2010: "I can see this making Fox News on a slow news day, maybe even on a busy news day. In fact, I bet (Fox News host Bill O'Reilly) would love to put this in his 'Pinheads' commentary. Just a thought to consider before it goes too much further."
Prison officials also made contingency plans to call off the surgery if Beshear set an execution date.
State officials deny that politics played a role, and there's no evidence in the documents that political considerations prevented the surgery.
(Copyright 2013 The Associated Press. All rights reserved.)