Judge’s ruling criticizing Oregon prison medical chief spurs claims of racism

Bizar Male

A judge who questioned the competence of the top doctor at the Oregon Department of Corrections now faces a state effort to remove her from a series of prison cases over alleged bias.

It is unclear what prompted the Oregon Department of Justice to file motions this week seeking to disqualify Senior Marion County Circuit Judge Claudia Burton.

But the move follows a scathing rebuke by Rep. Janelle Bynum, who said the judge owes an apology to Corrections Chief Medical Officer Warren Roberts for calling him unreliable and questioning his credibility in a ruling earlier this year.

Bynum, who like Roberts is Black, said the judge’s findings offer a clear example of how society applies a different set of professional standards to Black people.

“If she would say such things about someone who has worked diligently to become a neurosurgeon, then I can only imagine how people in handcuffs are treated in the courtroom,” Bynum said.

Roberts agreed that Burton owes him an apology.

“What she was saying was off the wall egregious, just not consistent with reality,” he told The Oregonian/OregonLive. “It felt like this was an attempt to delegitimize me and as a Black man in Oregon, I know what that feels like.”

Burton declined to comment. Judicial ethics rules don’t allow judges to comment on pending cases, court officials said.

The judge was unaware of Roberts’ race when she presided over a January trial that involved the medical chief, said a state official briefed on the matter but not authorized to speak about pending cases. The trial transcript shows Roberts testified by phone.

The conflict emerges as the Legislature is set to take up reforms intended to address racial disparities in the criminal justice system. As chair of the House Judiciary Committee, Bynum is a key voice in discussions about those reforms.

The controversy began five weeks ago after Burton found the prison system had provided substandard medical care to Richard Weaver, a 46-year-old inmate at the Oregon State Correctional Institution in Salem. Weaver suffers from asthma, pulmonary disease and chronic pain, according to court filings. Weaver also had an untreated dislocated wrist and contracted COVID-19 in prison, according to court records.

Weaver filed a habeas corpus case, a challenge under the constitutional prohibition on cruel and unusual punishment. Inmates commonly seek legal relief, including release from prison, for what they see as problems with their conviction or their treatment in prison.

Weaver is serving a 25-year sentence for attempted aggravated murder and first-degree robbery out of Marion County for a robbing a tool shop owner and attacking him with a claw hammer in 2010.

Burton ruled that the Department of Corrections had treated Weaver’s medical problems with “deliberate indifference” and directed the agency to take a number of steps, including having him seen by specialists and following through with their recommendations.

Burton based her determination in part on problems she saw with Roberts’ credibility at trial. A board-certified neurosurgeon, Roberts has been with the Department of Corrections since June 2019. He started as a staff doctor and quickly rose through the ranks.

Roberts oversees a staff of 600 and has directed the department’s response to the pandemic, which has swept through the state’s prison system. As of Wednesday, the state reported 3,542 cases and 42 deaths among 12,586 inmates.

Roberts, 49, of West Linn, receives an annual salary of $278,076.

At Weaver’s trial, Roberts testified not as the inmate’s physician but as a representative of the Department of Corrections.

Weaver’s lawyer, Tara Herivel, raised issues with Roberts’ professional expertise.

“He has caused pain … in every state he has practiced in,” she said, according to a transcript of her closing argument.

ROBERTS FACES ‘CORRECTIVE ACTION’

State records show Roberts is the subject of a corrective action agreement with the Oregon Medical Board. The board website says he entered into the non-disciplinary agreement in 2020.

Roberts must complete a one-year mentorship program with a board-certified doctor among other requirements.

The examiners investigated allegations that Roberts had provided substandard care to five patients in 2011 and 2013, according to medical board records provided to The Oregonian/OregonLive in response to a public records request. The cases predate his tenure with the Department of Corrections.

The records show Roberts was alleged to have: performed surgery on a 41-year-old woman when it was not medically indicated; performed an “inadequate” surgical procedure on a 65-year-old man’s spine; performed surgery on a 60-year-old woman when it was not indicated and demonstrated “substandard surgical skill”; raised questions with his chart notes and surgery on a 55-year-old man; and failed to address post-operative complications in a 28-year-old patient, which “contributed to patient harm.”

The board records note that Roberts, who previously practiced in Colorado, was the subject of a malpractice lawsuit in that state. That claim resulted in discipline in the form of a letter of admonition from the Colorado Medical Board for his medical treatment of a 71-year-old patient, board records show. The board records note that the case ended in a legal settlement.

Three years ago, a Multnomah County jury awarded a married couple more than $4.5 million after the husband alleged he suffered lifelong injuries from a spinal surgery performed by Roberts that altered the couple’s sex life and left the man unable to urinate without difficulty.

In an interview Wednesday, Roberts said the lawsuit was ultimately settled with the couple receiving a total of $1 million. He said under the settlement agreement, he was found not liable for the man’s injuries.

In response to questions about his care in that case, Roberts provided the news organization with letters from two neurosurgeons who reviewed the case and concluded that Roberts met the standard of care.

Under the 2020 agreement Roberts reached with the medical board, the board closed its investigation into his care in the five cases and made no “finding in regard to any violation of the Medical Practice Act.”

“I have never had my license revoked or suspended” since becoming a neurosurgeon in 2011, he said.

In 2017, Roberts prevailed in a lawsuit against Legacy Health and Legacy Meridian Park Medical Center. He claimed that his privileges at the hospital were revoked as part of a “sham” process, driven in part by racism and the desire of other doctors to remove him as competition. The jury awarded him $1.5 million in damages.

Roberts testified during the trial in Weaver’s habeas case this year and told the court that under the terms of his agreement with the medical board, he worked with a mentoring physician for the first six months but then the doctor retired.

He testified that he then arranged for another mentor but the medical board wanted a doctor with an internal medicine background. He told the court he had a difficult time finding someone and that he had notified the board that he was without a mentor.

Nicole Krishnaswami, executive director of the medical board, said Thursday that she could not say whether Roberts is in compliance with his agreement.

“If a licensee is not compliant, this would result in an investigation, which is confidential under state law,” she said in an email to The Oregonian/OregonLive. “In other words, I cannot comment on whether or not a licensee is compliant with an order.”

Robert Oshel, retired associate director for research and disputes at the National Practitioner Data Bank, said the number of allegations involving substandard care by Roberts is unusual, though he said surgeons and neurosurgeons tend to have more malpractice claims than other specialties. Surgeons typically do work that is riskier, he said.

The federal data bank is a nonpublic clearinghouse for information on medical malpractice payments, disciplinary actions taken against practitioners by licensing boards, health care entities and other types of actions. State licensing boards are required to report all disciplinary actions affecting their licensees to the agency.

Oshel, who is based in Maryland, said what also sets apart Roberts’ situation is the medical board’s decision to act at all, even if in a non-disciplinary way.

“Any kind of action by a medical board tends to be very unusual,” he said. “It takes a lot to get them to do anything, whether they call it disciplinary or not.”  

In 2019, the latest full year of data available, the Oregon medical board had a list of 16,000 licensees and reported to the data bank only 13 actions, said Oshel. The actions restricted, suspended or revoked physicians’ licenses or accepted a physician’s voluntary surrender or limitation on a license, he said.

‘AT WORST HE WAS INTENTIONALLY DISHONEST’

The judge noted several issues with Roberts’ testimony.

Burton wrote that Roberts had a six-month gap where he worked without a mentor whose role was to review records for Roberts’ patients and hold weekly meetings with Roberts regarding patient care. She wrote that the lapse appears to be in violation of the medical board agreement.

She also wrote that Roberts testified that he is able to perform neurosurgery, though his agreement with the state requires that he submit a “reentry plan” and work for at least one year with a board- certified neurosurgeon who has been approved by the board’s medical director.

Burton also wrote that although Roberts testified that his certification was in good standing, he “is out of compliance with the annual continuing certification requirements to maintain that certification.”

“In short,” Burton wrote, “Dr. Roberts’ technical competence as a physician is at least questionable. Dr. Roberts’ testimony regarding his professional difficulties was evasive. At best, he had a poor understanding of his obligations under the corrective action agreement and the requirements to maintain his board certification. At worst, he was intentionally dishonest with regard to these matters.”

She wrote that she agreed with the plaintiff in the case, Weaver, that “Dr. Roberts is an unreliable witness who lacks credibility.”

Roberts in an interview said the judge’s conclusions about his requirements under the medical board agreement were inaccurate and that he is in compliance.

JUDGE WAS ‘WAY OUT OF LINE, DISREPECTFUL’

Burton’s decision prompted Bynum, D-Happy Valley, to complain to Oregon Supreme Court Chief Justice Martha Walters.

In an email two days after the ruling, Bynum told Walters that she was “utterly disgusted by the treatment of Dr. Roberts.”

Rep. Janelle Bynum, D-Happy Valley, shown here at the Oregon Capitol, said a Marion County judge who questioned the credentials of a top doctor at the Department of Corrections owes the physician an apology. Beth Nakamura/Staff

Bynum had gotten to know Roberts through his work at the Department of Corrections and he had become “one of the few people I trust” to take care of Oregon’s prison population, Bynum said in the email.

“Judge Burton’s characterization of his professional credentials was way out of line, disrespectful, and unnecessary,” she wrote. “I do wonder how brazen people will become when attempting to erase the credentials of African American professionals.”

Walters replied that she couldn’t discuss Burton’s decision because the case is pending, “but I do want you to know that I care very much about the obligation that all Oregon judges have to administer justice impartially.”

In an interview with The Oregonian/OregonLive, Bynum said Black professionals tend to be “very, very isolated” in the workplace.

“It makes you easy prey for people to come after you,” she said. “You have no defense, you have no social capital, no political capital that helps other people get ahead and that makes you very vulnerable. That is why I said something. I felt it was unfair and uncalled for.”

After Burton’s ruling, Marie Garcia, the Department of Corrections legislative and government relations manager, sent an email to lawmakers saying the agency stood by Roberts, calling him “an exceptional physician who cares deeply about the well-being and healthcare needs of the adults in custody.”

Garcia said the department would work with Roberts to ensure he is in compliance with the medical board’s corrective action agreement.

Deputy state court administrator Phillip Lemman said in an email to The Oregonian/OregonLive Thursday that state court officials are “genuinely concerned that Dr. Roberts feels he was treated differently because of his race.”

Lemman said the Weaver proceeding was conducted remotely and “at no point was his race or ethnicity brought into evidence or apparent to the court.”

“Judges make decisions based upon the record before them,” said Lemman in a statement. “They base their rulings on the evidence presented through questions asked and the answers given. It is up to attorneys to offer all evidence and arguments they want the court to consider.

“The trial transcript shows approximately 50 pages of questions posed by the petitioner’s attorney and Dr. Roberts’ responses. It shows two pages of follow-up questions and responses by both the state’s attorney and the judge.”

STATE WANTS JUDGE OFF CASES

Meanwhile, the Oregon Department of Justice this week filed a motion seeking a new habeas trial in the Weaver case, though the agency said it would not challenge Burton’s determination of substandard care by prison medical staff.

The state also wants Burton off cases that involve claims of inadequate care by inmates who contracted COVID-19 in prison. Most of the claims involve prisoners who allege they have received poor medical care.

In a court filing, lawyers for the state made the request to remove Burton based on a belief that it “cannot have a fair and impartial trial or hearing” before the judge.

It also appears the Department of Justice is moving to ensure Burton doesn’t hear any medical-related habeas claims going forward.

An email obtained by The Oregonian/OregonLive shows Assistant Oregon Attorney General Yufeng Luo told a Malheur County Circuit Court clerk and other lawyers on Monday that the state “will move to disqualify Senior Judge Burton in all of these matters.”

Luo’s email does not cite a reason and she did not respond to an email from the news organization seeking an explanation.

Burton was first appointed to the bench in 2003 by Gov. Ted Kulongoski and retired at the end of 2020, though she continued to work full time until March 1. Going forward, she will maintain a part-time schedule as is common with newly retired judges, state court officials said.

Burton has not been the subject of any complaints that resulted in censure or other public discipline, according to the Oregon Commission on Judicial Fitness and Disability.

Herivel, Weaver’s lawyer and among the state’s most experienced habeas corpus attorneys, said the state’s effort to disqualify Burton is extraordinary. Herivel leads a team of 30 lawyers who represent habeas cases involving inadequate care for inmates with COVID-19.

“In my experience, and I have had hundreds of cases involving the Department of Justice … I have never seen it,” she said. “I have never heard of it.”

The Department of Justice’s latest court filings show the state wants to challenge Burton’s conclusions about Roberts’ credibility.

The judge’s findings, the filing said, “have a negative impact on Dr. Roberts and the operations of health services within the Oregon Department of Corrections.”

— Noelle Crombie; [email protected]; 503-276-7184; @noellecrombie

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