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Prison Health Care, Political Choice and the Accidental Death Penalty in Michigan
by Elizabeth Alexander1
In Hadix v. Caruso, I represent a class of prisoners in a decades-long case challenging conditions of confinement, including medical care, at various Michigan prison facilities.2 Since August 2006 I have been haunted by the death of one of those prisoners, because in retrospect his death appears to be the inevitable by-product of a prison system swollen beyond any historical precedents or its ability to manage such a huge number of people safely. Prisons are in fact extraordinarily difficult to operate safely and humanely, and the United States will continue to fail to do so absent a fundamental change in criminal justice policy. This article seeks to trace some connections between a dysfunctional criminal justice policy and the death of one man.
Prison systems like Michigan’s have been allowed to operate unsafe prisons because the Eighth Amendment fails to provide an effective form of oversight, and no other form of serious oversight exists in the United States. In a series of decisions, the Supreme Court has preserved the form of Eighth Amendment challenges to conditions of confinement but little of the substance, by allowing severely overcrowded prisons,3 suggesting that considerations of cost can defeat an Eighth Amendment claim,4 and allowing Eighth Amendment claims to be defeated even when prison conditions are objectively intolerable and deny prisoners basic human needs, including health care.5 Unfortunately, Michigan may ultimately illustrate that the only real restraint on prison growth is its cost, not the Constitution.
I. The Lonesome Death of Timothy Souders
Timothy Souders arrived at the Southern Michigan Correctional Facility in March 2006 with medical problems that included a thyroid disorder and cardiac risk factors.6 He also had been diagnosed with bipolar disorder and depression, and had attempted suicide multiple times. It was duly noted in his medical record that, because of his medications and medical problems, he was at very high risk of injury if exposed to excessive heat.
In March 2006, the prison psychiatrist at the Southern Michigan Correctional Facility where Mr. Souders was confined changed his medications, prescribing lithium for his bi-polar disorder and subsequently increasing his lithium. However, there are no records of laboratory monitoring of the level of lithium in his blood for the relevant period, although elevated lithium levels are toxic and can cause symptoms ranging from mental confusion to life-threatening side effects such as kidney failure. Monitoring lithium levels in the blood is considered absolutely necessary when lithium is prescribed, and high lithium levels are particularly dangerous in someone who is dehydrated.
Near the end of May 2006, the psychiatrist went on medical leave and thereafter there was no psychiatrist on-site for the 1,400 prisoners at the prison. In July Mr. Souders was involved in a fight with another prisoner and was ordered to punitive detention. After 30 days he was released, but he was sent back to the segregation unit for taking an unauthorized shower during an August day in which the heat index was over 90.
He was put in a boxcar cell, meaning an essentially unventilated cell with no window and a solid metal door, rather than an open barred cell front, on the sixth level of the prison. When staff opened the food slot in one of the solid doors, which is how staff talked to people in those cells, on hot days they could feel a blast of hot air from inside the cell. During the next few days the heat index in the cells rose to around 100.
On August 2, 2006, Mr. Souders damaged the metal stool in his cell and was put into standing restraints. When he tried to flood his sink, according to prison records, a supervisory nurse approved cutting off the water to the cell – a restriction removed only because someone noticed that the whole prison was on heat alert status. Mr. Souders was then put into top-of-bed restraints, with metal restraints on his wrists and ankles on a concrete slab. Use of this type of restraints is well known to carry a risk of death from asphyxiation, heart attack and dehydration.
That day, the psychologist who was in charge of mental health services for the prison characterized Mr. Souders as “floridly psychotic.” From August 2 through August 5, the segregation log and the video camera used in his cell document that Mr. Souders was repeatedly screaming incoherently. Between August 2 and August 6, Mr. Souders rarely accepted water. During the first two days he was in restraints, the video camera used by staff to film him fogged up and staff com-plained of the heat and humidity in his cell. As the use of restraints continued, Mr. Souders was held in restraints naked. He urinated in his restraints and developed burn-like sores on his body from lying in his own waste. At one point, prison records indicate that Mr. Souders was transported to the prison’s unaccredited on-site “hospital,” but the physician there declined to examine him, apparently because he urinated on the examining table.
On August 6, prison guards walked him to the showers; the video shows him staggering. Shortly thereafter the restraints were removed. He then fell to the floor of his cell and was unable to get up. Guards returned him to the slab. A nurse examined Mr. Souders in his cell and told him that his pulse was faint, a symptom that indicated he had experienced a drastic fall in his cardiac output. The nurse then left the cell without doing anything to assist him. For the next hour there was no movement in the cell. Then staff reentered the cell because Mr. Souders did not appear to be breath-ing. He was pronounced dead shortly thereafter, at the age of 21. [See: PLN, May 2007, pp.1, 7, 8].
Michigan allows “limited license psychologists” to treat prisoners absent supervision even though they are not eligible to treat people in the community without supervision by a fully-licensed psychologist. The limited-license psychologist who last saw Mr. Souders alive had an undergraduate degree in theology and a master’s degree in community counseling. This limited-license psychologist had seen the psychologist who was officially “supervising” him once, from a distance, in the preceding year. The head psychologist who diagnosed Mr. Souders as floridly psychotic was a psychiatric social worker and also was not licensed to practice in the community without formal supervision. Aside from the prison system’s employment of staff who are not fully licensed, staff demonstrated a pervasive indifference to community standards of care, as illustrated by the psychiatrist’s failure to perform routine tests for toxic levels of lithium that any psychiatrist in the community would have required.
Staff resources were severely stressed. The Director of Nursing at the prison where Mr. Souders died testified that the prison complex needed about 11 more registered nurses to deliver health care. Almost a third of the registered nursing positions were filled by licensed practical nurses. Even today, despite Mr. Souders’ death, the Department has no policy that requires large prisons with segregation units, which are typically full of the mentally ill, to have on-site psychiatrists.
The medical staff operate in a culture of deference to prison security staff that interferes with care. That culture ex-plains the behavior of the nurse who told security that there was no reason Mr. Souders could not be placed on a water restriction despite his medical problems and the conditions within his boxcar cell. It similarly explains the conduct of the doctor who knew of Mr. Souders’ urine burns but neither treated him nor objected to the use of restraints by security. That culture also explains how a registered nurse could fail to initiate treatment when he learned that Mr. Souders had developed a weak pulse. All of these individual failures took place in a context in which no medical or mental health staff perceived a need to intervene. Nor did any medical staff question why security made the decision to put a mentally ill man into restraints. Nor did anyone question leaving a man in restraints within a boxcar cell where staff could not readily ob-serve him. As the medical director for the Michigan prison system admitted, he thought that there was ample opportunity for medical, mental health and security staff to intervene, but it never happened.
An autopsy determined that the cause of Mr. Souders’ death was hyperthermia, with dehydration a secondary cause, but it characterized the death as “accidental.” While no one has asserted that any staff member actively desired the death of Mr. Souders, I cannot accept the claim that the death was an accident. Rather, the death of Mr. Souders and other victims followed inevitably from the decision of the State of Michigan to imprison almost 50,000 people but fail to provide the resources necessary to provide them with minimally adequate health care, combined with a staff culture of willful blind-ness to the risks that this lack of care entailed.
II. Just Another Brick in The Wall
As might be expected from the number and variety of deficiencies in medical and mental health care implicated in the death of Timothy Souders, his death took place against a backdrop of systemically inadequate care. For some years, the Michigan prison system has chosen to concentrate its sickest prisoners in the Hadix facilities. As of early 2007, at the largest Hadix prison, half of the prisoners suffered from at least one chronic disease requiring ongoing treatment. The ap-parent reason for this concentration of chronically ill prisoners was the proximity of Duane Waters Hospital, run by the Department of Corrections. The hospital was required under a Consent Decree entered early in the Hadix litigation. For a substantial period of time, the hospital was accredited by the Joint Commission on Health Care Organizations, but that accreditation has now lapsed. Despite the lack of accreditation, the Department of Corrections continued to allow a surgeon who lacked admitting privileges at any hospital to perform surgery there.
Thus, although the Hadix facilities have served as the linchpin of the Michigan prison health care system, that linchpin is malfunctioning. The Hadix court made findings in 2002 regarding hundreds of incidents in which prisoners received in-adequate or delayed care, or no care at all. These findings included cases in which the medical system failed to provide timely access to prisoners with urgent and emergent serious medical problems, including failures resulting in death. Sub-sequent findings by the court-appointed medical monitor, Robert Cohen, M.D., described multiple medical failures, including a prisoner who died of an untreated “staph” infection and gastrointestinal bleeding; an HIV patient with difficulty in swallowing who, despite a weight loss to 108 pounds, was denied the pureed diet he needed to eat; and a diabetic who predictably died of hypoglycemia after gross failures of treatment and monitoring, accompanied by a failure to respond to his emergency needs.
The court medical monitor and the Director of Medical Care for the Department of Corrections, a physician, jointly reviewed six randomly-selected medical records of Hadix class members whose specialty care appointments had been delayed. In one case, there were no apparent consequences from the delay; in a second case, the only effect may have been to force the prisoner to experience unnecessary pain. In the other four cases, the Hadix court concluded, the delay exposed the prisoners to the “prospect of unnecessary death and grossly unnecessary suffering.”7
These cases included a man allowed to go untreated for an extended period without diagnosis or treatment for a kidney stone that was rendering his kidney non-functional. Another man with textbook signs of an impending heart attack was improperly scheduled to be seen in thirty days rather than immediately. By the time he was seen, he was lucky to survive his emergency by-pass surgery. Another patient with known symptoms of bowel cancer had his diagnosis delayed for over a year. He proved to have an abnormal, potentially pre-cancerous lesion. Perhaps equally striking, after the diag-nosis the patient was not scheduled for follow-up until his case was discovered in the random case review.
The last patient whose file was randomly chosen for review had complained that a mole on his back was increasing in size. He kited repeatedly and was diagnosed with “melanocystic skin mole” that needed to be “watched closely.” Nonetheless, a subsequent medical order to remove the mole in two weeks resulted in no treatment; a nurse told him to apply a hot compress to the mole. Over six months after he began kiting, in January 2006, he saw medical staff again, by which time the mole had grown into a black-red mass with irregular margins and bleeding. About two weeks later, a pathology report indicated malignant melanoma. He did not receive the next necessary step in the diagnostic process, a sentinel-node biopsy to determine whether he had metastatic cancer, until April 2006. That biopsy showed that the cancer had spread while he was not receiving treatment.
Unfortunately, the mistreatment of this patient did not end despite the Hadix court’s December 2006 opinion noting the previous delays in diagnosing his cancer. The medical monitor subsequently discovered that the patient’s chemotherapy had been significantly interrupted when staff did not order his cancer treatment drugs in a timely manner. When the drugs were ordered, staff specified an insufficient quantity for the chemotherapy.
These delays in care took place in the context of a system that allowed 30-40% of cancer patients at any given time not to receive treatment within the time frames set by their physicians, even though, the Hadix court found, those physicians often set dates for patients to be seen that were too far in the future, and often failed to take appropriate initial diagnostic steps for timely diagnosis of cancer. For example, another patient waited nine months for a biopsy of his suspected cancer. He finally received a biopsy diagnosing prostate cancer on March 19, 2007. As of early July 2007, the patient had developed bloody urine and was still not yet scheduled for surgery.
The medication distribution system is also broken. A randomized study of medication prescription and renewal by the medical monitor’s office concluded that each month hundreds of prisoners kited within the Hadix facilities because their medications had been interrupted. There is no functioning system to assure renewals of medications even when staff know of the need for renewals. As a result, even HIV medications go unrenewed. Although the problem is widely known among health care staff, nothing is done to address the problem. In fact, a physician in the Hadix facilities refused to re-new medications in a timely fashion. The medical monitor documented that medications records containing medication renewal requests, abnormal laboratory test results and specialty consultation reports piled up unread in physicians’ of-fices. The monitor also documented waits of three to four weeks to see a physician, with physicians canceling scheduled patient appointments without cause.
As of the last date for which I have data, half of the registered nurses positions were not filled by permanent staff. Of those filled by temporary contract staff, 60% of the positions were filled by licensed practical nurses rather than registered nurses. As a result, licensed practical nurses take actions that they are not qualified to perform. The nursing shortages also result in medical kites from prisoners going unanswered for days at a time.
Medical treatment was equally bad at the dialysis unit, where a number of prisoners with the most complex medical problems are housed. An outside nephrologist review reported that the medical director “appeared disengaged,” and that there were serious deficiencies in water testing and documentation, management of vascular access complications, blood pressure management, delayed specialty care referrals and testing, medication continuity, and emergency care.8 Registered nurses assigned to the dialysis unit have been administering medications in a variety of unapproved ways, including relabeling medications dispensed by the pharmacist for prisoners who have left the facility in order to administer them to other prisoners, failing to check medication orders correctly before administering them to prisoners, and relying on an outmoded system to check that the correct medications are administered.
Further, in part because medications are not being consistently ordered electronically, the medication regimes for the dialysis patients are frequently interrupted. According to a review by the medical monitor, 61% of the dialysis prisoners experienced delays or interruptions of their prescribed medications. Although dialysis puts patients at risk for sepsis, most of the intravenous medications on hand to treat septic patients following hospital discharge are months or years past their expiration date, even though there can be a three-day delay in the dialysis unit’s ability to obtain new supplies of such medications.
Dialysis patients needing specialty care (other than urgent surgery when vascular access for dialysis fails) frequently do not receive that care or receive it only after significant delays. As of December 2007, a dialysis patient with a cerebral aneurysm had been waiting since June 2007 for surgery. Another patient was receiving dialysis through a perma-catheter in his chest wall, which is a dangerous method for dialysis access because of the heightened risk of infection it poses. The patient was delayed between September and December 2007 in obtaining surgery to create a standard arteriovenous shunt for dialysis. Shortly after the surgery he was found to have a blood infection and was started on intravenous antibiotics.
A nephrologist consultant for the monitor’s office reviewed the deaths of a number of dialysis patients. One of those deaths involved a prisoner whose cardiac symptoms were ignored over a long period, except for one physician’s attempt to obtain a stress test for him. The prison’s contract medical provider, Correctional Medical Services, Inc. (CMS), denied the request. Subsequently, the patient died of cardiac arrest after his dialysis was delayed despite a life-threatening eleva-tion in his potassium level. Another dialysis patient died of a brain hemorrhage after his blood pressure problems were ignored and mistreated by medical staff for a year. He was treated with a single medication that cannot safely be used as a sole medication for severe hypertension, and his death, according to the report, was directly related to his severe, un-controlled and inappropriately managed blood pressure and failure to ensure accurate medication administration.
Another dialysis death occurred after staff failed to note increasing evidence of unstable cardiac disease. Although one of the patient’s physicians did note that he needed an echocardiogram, the test was not performed. A nurse who thereafter saw the patient at a time the patient was experiencing classic symptoms of unstable angina did not make a referral to a phy-sician. A month later, the physician again remarked that the patient needed an echocardiogram, but the test was not ordered. The following month the patient was finally sent to a hospital where he was diagnosed with a heart attack, and he died of cardiac arrest following by-pass surgery. Another patient died after a delay in summoning an ambulance after the patient experienced a heart attack. The autopsy indicated that he had a structurally normal heart, so that prompt treatment of the heart attack might have saved his life.
After years of reviewing the failures of medical and mental health care, it is perhaps not surprising that the federal judge assigned to Hadix wrote that
[T]here are a large number of complicated cases with interdisciplinary problems that unfortunately are being regularly mistreated and/or ignored by staff. The phenomenon is now a regular feature of the system.9
Understanding how such a prison staff culture could become embedded requires a consideration of the larger policies that have shaped the Michigan criminal justice system.
III. Money for Nothing
As of the last available statistics, Michigan had per-prisoner medical costs that were about 108% of the national aver-age. I consider the more significant statistic that Michigan spent $2,841 per prisoner on medical care in 2001, at a time when national spending on medical care was $4,370 per person per year. Of at least equal significance, Michigan has been receiving limited value for the money that it does spend on prison health care. According to a report by the National Commission on Correctional Health Care (NCCHC), commissioned by the Michigan Department of Corrections (MDOC), Michigan is getting poor value for the $300 million per year that it currently spends on prison medical care. Part of the problem, according to the report, was that Michigan contracts out physician services (other than psychiatrists) to CMS.
An NCCHC reviewer became concerned about the level of cognitive functioning of one of the CMS physicians. The physician’s medical records had so many errors of spelling and language use that parts of them were incomprehensible. When the reviewer asked supervisors about this physician, the supervisors were familiar with the problem but none believed he or she had the power to take action.10
In addition, under its contract with the state, CMS pays for off-site specialty care and also decides whether a physician will be allowed to refer a prisoner for such care. As the NCCHC report notes, the fact that the physicians work for CMS may explain why they rarely challenge the decision of CMS reviewers to deny their requests for specialty referrals. Similarly, this fact may explain why 30-40% of cancer patients, as noted earlier, experienced disruptions in their chemo-therapy under this system.
A subsidiary of CMS, PharmaCorr, provides pharmacy services for the prison system. PharmaCorr is not required to provide a consulting pharmacist under the contract. Staff reported to the NCCHC that they experienced delays in receiving medications for “same day” delivery under the contract, which is not surprising because PharmaCorr ships all its medications to Michigan from its warehouse in Oklahoma. The report also found that the formulary (a list of medications that a physician can prescribe without any additional authorization from a reviewer) lacked classes of medications that are commonly included in the formularies of large health care organizations, and the procedures for ordering non-formulary medications could pose serious safety concerns, aside from the paperwork burden posed by the inadequacies of the formulary.
The process for dispensation of medication is unnecessarily time-consuming and wasteful. The medical records, which are partly electronic and partly paper, pose a barrier to patient care and decrease the productivity of staff, in significant part because of problems with the electronic medical records system that Michigan uses. In fact, Serapis, the electronic medical records system, is so flawed that the NCCHC recommended that if Michigan intends to continue using it for any purpose, it should at least stop using it to record certain medical functions, instead reverting to paper records.
The report also commented that the MDOC was “one of the most bureaucratic systems we have ever encountered,” and questioned whether the proliferation of bureaucratic procedures of dubious value undermined the system’s ability to complete necessary procedures. The proliferation of paperwork is “even worse” in health care, with the 51 Michigan prisons generating hundreds of reports each month that the NCCHC doubted would be read by anyone.
At the same time, the productivity of CMS medical staff was strikingly low. While the reviewers expected physicians to see an average of 20 patients per day, most CMS providers averaged 8-12 per day, and one provider averaged five per day. The NCCHC identified three factors contributing to the low productivity: Serapis, the poorly functioning electronic medical record system; certain prison rules; and the fact that the medical care providers are not employees of the MDOC.
The third point is the heart of the matter, according to the NCCHC report:
The providers have no incentive other than their own professionalism to see more patients. All MDOC facilities have been completing [provider] Productivity Reports for several years. The [MDOC Bureau of Health Care] administration says they cannot do anything about the situation, because they do not supervise the [providers]. They send the information on to the CMS administration, but nothing ever changes. We were told by several MDOC staff that CMS administrators say they cannot tell the [providers] what to do, because they are independent contractors and not employees. Whatever the truth is, this situation must change.
***
The MDOC should seriously reconsider the advantages and disadvantages of continuing to contract out provider services.
Not surprisingly, the report also found that the system lacked an effective quality improvement program, or a functioning peer review system to assure health care quality. Instead, the system’s ostensible quality improvement system amounted to mere “paper pushing.”
Many if not all of the problems the report identified stemmed from Michigan’s failure to write a proper contract with CMS and other contractors, including the company that provided the Serapis program. The NCCHC reviewers were told that CMS often unilaterally reduced its staff coverage for a particular position from five days a week to two days a week, and the contract did not provide any disincentive for CMS doing so. In fact, the contract allows the prison system to require CMS to fill those hours, but the system has not insisted on full staffing. Perhaps most damning, over the ten years of the contract, the NCCHC monitors were not provided with a single monitoring report, although the state was supposed to perform regular audits and CMS was supposed to be assessed liquidated damages at any facility that failed to achieve a designated level of compliance. Notwithstanding this provision, not a single claim for liquidated damages was ever made by the state:
Many staff verbalized that they had “heard from Lansing” [where the headquarters of the MDOC is located] that the MDOC simply needs to make the relationship with CMS “work.” Whether or not anyone in the MDOC central office actually said this, this is what staff perceives. The most glaring example of this is practitioner staffing shortages. ... Staff speculates that if the MDOC and CMS were operating in a truly arm’s length relationship, there should be an immediate response from the MDOC followed by a rapid termination of the contract.
Although the causes differ in part, the mental health program is also strikingly inefficient. The program is divided between the Michigan Department of Community Health, which provides psychiatrists and certain other staff, and the MDOC, which provides most of the psychologists. Certain prisoners are placed on the out-patient mental health team case load, and these prisoners have their mental health care provided by the Department of Community Health. All of the other prisoners supposedly have their health care provided by the MDOC, including identification and initial treatment of patients experiencing a mental health crisis. This organizational structure is cumbersome and wastes resources. It also creates problems because of disagreements between the two entities as to whether a prisoner needs treatment, and allows staff to disclaim responsibility for services that they consider not within their duties.
IV. Trouble Ahead, Trouble Behind
Michigan citizens are justly proud that their state supports one of the nation’s finest public universities, including a leading medical school. In my view, they should also be proud that the state lacks a judicially-imposed death penalty. Unfortunately, as the death of Mr. Souders and many others illustrate, Michigan now has a randomly imposed death penalty for too many prisoners who have the misfortune to suffer from serious medical needs, and this accidental death penalty stems directly from public policy choices that have resulted in an underfunded prison system confining prisoners for whom it is unable to provide minimally adequate medial care.
Michigan has the sixth largest prison population among the states, although it ranks eighth in total population. Three states with larger total populations – Ohio, Illinois and Pennsylvania – have smaller prison populations. Michigan’s comparatively high rank in prison size reflects its comparatively high incarceration rate. This rate is an outlier in the Midwest region, and ten of the eleven other states in the region have rates lower than Michigan’s.
Nor can Michigan’s high incarceration rate be explained simply by its crime rate. Michigan has the eleventh highest incarceration rate in the country, although it ranks seventeenth in crime rates.11
Incarceration rates are as much influenced by criminal justice sentencing policies as by crime rates. Only three of the eleven states with the highest incarceration rates have crime rates that also rank in the top eleven among the states. While crime rates matter in determining incarceration rates, criminal justice policies related to prosecution, sentencing and parole matter at least as much.
Michigan has adopted a relatively punitive set of criminal justice policies, in significant part related to its history of extraordinarily tough punishment for drug offenders. In 1978, the state legislature imposed a mandatory punishment of life imprisonment without parole for persons convicted of possession of 650 grams of cocaine or heroin. Not even convictions for rape or mayhem were punished as harshly as persons punished under this drug possession statute; the only other crime that Michigan punished equally harshly was first degree murder. No other jurisdiction imposed a mandatory sentence of life imprisonment without parole for first-time possession of illegal drugs in comparable quantities. Although Michigan’s mandatory life sentence for drug possession statutes were repealed in 1998, and prisoners convicted under the law subsequently received parole eligibility, in the last five years the Parole Board has granted parole to eligible lifers at the rate of 0.2% per year.
In 2002-2003, more than 9% of the Michigan prison population was serving a life sentence, amounting to almost 4,600 prisoners. As of 2002-2003, Michigan had the fourth-largest number of lifers of any prison system in the nation. More than half of those prisoners were serving life without the possibility of parole. For lifers who were eligible for parole, the average sentence length for those who gained release increased to an average of 23.2 years during 2000-2004. Apparently many of the lifers released in those years were released on medical parole, which typically implies that the prisoner has a terminal illness or some other incapacitating medical or mental health condition. Thus, the combination of a large state population, a relatively high crime rate, and a particularly severe set of sentencing and release policies have resulted in nearly 50,000 prisoners behind bars.
V. And It’s a Hard Rains A-Gonna Fall
Michigan’s criminal justice system combines a number of elements that fuel a particularly expensive prison system – that is, a state with a large population; a state with a very high incarceration rate and aging prisoner population, reflecting a history of unusually punitive criminal justice policies; and a state that receives poor value for its expenditures on prison health care. In addition, Michigan, unlike the majority of the states with comparatively high incarceration rates, also has comparatively high per-prisoner incarceration costs. Locking people in prison is, under any circumstances, an expensive business, and Michigan policy makers appear to have done virtually everything within their power to make it more expensive.
By 2003, the nation spent $61 billion just on corrections, out of a total spending on the criminal justice system of $186 billion. The most recent available figures for the cost of incarceration per prisoner average $23,876. That average cost, however, is subject to wide variation. If we look at the eleven states including Michigan with the highest incarceration rates in the country, we find that six of them rank among the ten states with the lowest per-prisoner costs.12
Michigan is the only state with a high incarceration rate that also ranks above the state median in per-prisoner cost. In fact, Michigan ranks well above the national average cost of incarceration, and it is the only state among the 11 with the highest incarceration rates that has a per-prisoner cost that exceeds the national average.
The major reason for the high per-prisoner cost is staff wages and benefits. The approximately 50,000 Michigan prisoners cost the state an average of $28,743 per prisoner, in contrast to the national average per-prisoner cost of $23,876. A Pew Charitable Trust analysis found that the two critical factors in determining comparative per-prisoner incarceration costs among the states are variations in the cost of employee wages and benefits, and variations in the prisoner-to-staff ratio.13 In a 2002 survey, base pay for correctional officers in Michigan was the sixth highest in the country. Wages and benefits have made up 71% of the total operating costs of the Michigan prison system, although on average these expenses in state correctional systems account for about two-thirds of the systems’ total operating costs.
Aside from the fact that MDOC wages and benefits account for a somewhat high percentage of operating expenses, there is other evidence that its comparatively high per-prisoner cost does not reflect a high ratio of staff to prisoners. The union that represents correctional officers in Michigan claims that the number of state correctional officers declined from 10,600 to 9,200 between 2000 and 2005, despite an increase of several thousand in the prison population.
Michigan can no longer afford to pursue this discordant cluster of policies. Most states that provide abysmal medical care at least get what they pay for; Michigan cannot even make that statement. Even in the best of times, high incarceration rates combined with high incarceration costs result in difficult financial burdens, as large numbers of states have recognized. Because of the state’s high number of lifers and long sentences for drug crimes, Michigan’s prison population contains many older prisoners who tend to need more expensive medical care. When one adds in high staff costs and the waste of large amounts of money in the dysfunctional medical care system, the cost of the system would not be sustain-able over the long term in relatively good economic times.
Of course, these are not good economic times, particularly in Michigan. For over a year, the state has been caught up in a “one-state recession,” with the highest unemployment rate in the nation. As the economic downturn has worsened, the state has experienced a major budget crisis. Part of the MDOC’s response to the reduction in its share of the state budget was to close the Southern Michigan Correctional Facility, the prison where Mr. Souders and many others died. I have no doubt that the major motivating factor for the closure was the desire to save money by moving the concentrated population of sick prisoners to prisons not covered by the Hadix consent decree. Now that these high-risk prisoners have been dispersed throughout the system, it is highly likely that their medical care will deteriorate further. [See: PLN, Dec. 2007, p.26].
Aside from the moral responsibility that Michigan politicians and the MDOC bear for Mr. Souders’ death and their refusal to prevent future deaths, the current cluster of policies and practices are on a collision course with reality. Michigan taxpayers have been stuck with large jury damages awards related to some of these deaths. The estate of Jeffrey Clark, a prisoner at the Bellamy Creek Correctional Facility in Michigan, was awarded $2,750,000 by a federal jury based on his death from dehydration in a hot cell after prison staff turned off the water in his cell and failed to give him water to drink at a time when he suffered from apparent mental illness. [See: PLN, Dec. 2008, p.9]. A damages action on behalf of the estate of Timothy Souders was settled for $3.6 million in June 2008. [See: PLN, March 2009, p.41]. More recently, the state settled with a large number of current and former female prisoners who had been subjected to rape or other forms of sexual abuse for an astounding $100 million [PLN, Dec. 2009, p.30]. The MDOC also risks new class actions seeking injunctive relief at the prisons to which large numbers of chronically ill prisoners were transferred after the closure of the Southern Michigan Correctional Facility.
More importantly, until Michigan fundamentally reforms its sentencing and parole policies, as well as its system for delivering health care, prisoners like Timothy Souders will continue to suffer a death sentence for the “crime” of being men-tally or physically ill. Until fundamental change occurs, I can only echo the words of Richard A. Enslen, the Hadix federal judge who brought to public attention the failures in the Michigan system: “Say a prayer for [Timothy Souders] and the others who have passed. Any earthly help comes far too late for them.”14
Postscript
In September 2007, a panel of the Sixth Circuit Court of Appeals, composed entirely of judges appointed by former President George W. Bush, remanded but did not vacate the relief ordered by Judge Enslen in an opinion that did not rule on the merits.15 On remand, a new federal district judge, also appointed by former President Bush, terminated the injunctive relief on mental health care ordered by Judge Enslen. Plaintiffs appealed to the Sixth Circuit from that ruling.
Ironically, at the same time that the prisoners have been denied relief by the federal courts, the deadly medical care revealed by the Hadix litigation led to a substantial public outcry that, in addition to forcing the Governor to ask the National Commission on Correctional Health Care to prepare its critical report, forced the Department of Corrections to act. The unfavorable media attention culminated in a 60 Minutes story in February 2007.
In response, and also presumably spurred by the financial crisis that hit Michigan particularly hard, the MDOC took steps that significantly increased parole grants, reduced parole revocations and increased the number of prisoners given compassionate medical release. Of particular note, parole revocations are down by 42% since their high-water mark in 2002. As a re-sult, the prison population has fallen by about eight percent, and even this calculation does not take into account that, before these steps, the population had been increasing by about 160 prisoners a month.
It remains to be seen whether these policies will be maintained after the financial crisis eases, despite the MDOC’s astounding admission that increased incarceration “may actually increase crime in Michigan because of the high unemployment rate among former prisoners and the reduced funding available for education.”16
Ed. Note: See the related article in this issue of PLN, “Hadix Litigation Winding Down,” for more recent developments in the Hadix case after this article was written.
ENDNOTES
1. Elizabeth Alexander is the former Director of the National Prison Project of the American Civil Liberties Union Foundation. This article is reprinted in modified form with the permission of the author and the University of Pennsylvania Journal of Constitutional Law, where it was originally published (Vol. 11:1, Dec. 2008).
2. See, e.g., Hadix v. Caruso, 465 F.Supp.2d 776, 778-79 (W.D. Mich. 2006), rem., 248 Fed.Appx. 678 (6th Cir. 2007) (per curiam) [PLN, May 2007, p.7; Dec. 2007, p.26]. Until recent years, the case was known as Hadix v. Johnson, and generated a large number of judicial opinions. See, e.g., Hadix v. Johnson, 367 F.3d 513 (6th Cir. 2004) (remanding finding of constitutional violation regarding fire safety).
3. Rhodes v. Chapman, 452 U.S. 337, 348-49 (1981) (overcrowding not shown to inflict wanton pain or lead to deprivation of basic necessities such as food does not violate the Eighth Amendment).
4. Wilson v. Seiter, 501 U.S. 294, 301-302 (1991) (responding to argument that requiring a showing that prison officials were deliberately indifferent before prison conditions would violate the Eighth Amendment would allow prison officials to prevail by showing fiscal constraints stating that interpretation of the Eighth Amendment is controlled by its language, not policy considerations).
5. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994) (defining the deliberate indifference standard required to show an Eighth Amendment violation in prison conditions in a manner parallel to the criminal recklessness standard) [PLN, July 1994, p.1].
6. Hadix v. Caruso, 461 F.Supp.2d 574, 577, 579 (W.D. Mich. 2006), rem., 248 Fed.Appx. 678 (6th Cir. 2007) (per curiam). My descriptions of Mr. Souders’ death and medical care within the Michigan prisons are based on the record in Hadix, including this decision.
7. Hadix v. Caruso, 465 F.Supp.2d at 786.
8. Eric M. Gibney, Report to the Office of the Independent Medical Monitor: Dialysis Patient Medication Report 10-12 (undated) (on file with the au-thor) [See also: PLN, April 2009, p.22].
9. Hadix v. Caruso, 461 F.Supp.2d at 598.
10. Nat’l Comm’n on Corr. Health Care, A Comprehensive Assessment of the Michigan Department of Corrections Health Care System, 8 (2008), available at www.michigan.gov/documents/corrections/Final_MDOC_HCS_Report_222383_7.pdf. [PLN, Oct. 2008, p.16].
11. U.S. Census Bureau, Statistical Abstract of the United States: Violent Crime Per 100,000 Population–2004, www.census.gov/prod/2004pubs/04statab/law.pdf.
12. This data is derived from the Public Safety Performance Project, Pew Charitable Trusts, “Public Safety, Public Spending: Forecasting America’s Prison Population 2007–2011,” at 27 (rev. 2007), www.pewcenteronthestates.org/uploadedFiles/Public Safety Public Spending.pdf and from the Pew Center on the States, “One in 100: Behind Bars in America 2008,” at 11 (Feb. 2008), www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf.
13. Id.
14. Hadix v. Caruso, 461 F.Supp.2d at 576.
15. Hadix v. Caruso, 248 Fed.Appx. 678 (6th Cir. 2007) (per curiam) [PLN, Dec. 2007, p.26].
16. Michigan Department of Corrections, Policy Reforms that Reduce Corrections Spending,
(April 2009), available at www.nga.org/Files/pdf/0904JUSTICEMI.PDF.
In Hadix v. Caruso, I represent a class of prisoners in a decades-long case challenging conditions of confinement, including medical care, at various Michigan prison facilities.2 Since August 2006 I have been haunted by the death of one of those prisoners, because in retrospect his death appears to be the inevitable by-product of a prison system swollen beyond any historical precedents or its ability to manage such a huge number of people safely. Prisons are in fact extraordinarily difficult to operate safely and humanely, and the United States will continue to fail to do so absent a fundamental change in criminal justice policy. This article seeks to trace some connections between a dysfunctional criminal justice policy and the death of one man.
Prison systems like Michigan’s have been allowed to operate unsafe prisons because the Eighth Amendment fails to provide an effective form of oversight, and no other form of serious oversight exists in the United States. In a series of decisions, the Supreme Court has preserved the form of Eighth Amendment challenges to conditions of confinement but little of the substance, by allowing severely overcrowded prisons,3 suggesting that considerations of cost can defeat an Eighth Amendment claim,4 and allowing Eighth Amendment claims to be defeated even when prison conditions are objectively intolerable and deny prisoners basic human needs, including health care.5 Unfortunately, Michigan may ultimately illustrate that the only real restraint on prison growth is its cost, not the Constitution.
I. The Lonesome Death of Timothy Souders
Timothy Souders arrived at the Southern Michigan Correctional Facility in March 2006 with medical problems that included a thyroid disorder and cardiac risk factors.6 He also had been diagnosed with bipolar disorder and depression, and had attempted suicide multiple times. It was duly noted in his medical record that, because of his medications and medical problems, he was at very high risk of injury if exposed to excessive heat.
In March 2006, the prison psychiatrist at the Southern Michigan Correctional Facility where Mr. Souders was confined changed his medications, prescribing lithium for his bi-polar disorder and subsequently increasing his lithium. However, there are no records of laboratory monitoring of the level of lithium in his blood for the relevant period, although elevated lithium levels are toxic and can cause symptoms ranging from mental confusion to life-threatening side effects such as kidney failure. Monitoring lithium levels in the blood is considered absolutely necessary when lithium is prescribed, and high lithium levels are particularly dangerous in someone who is dehydrated.
Near the end of May 2006, the psychiatrist went on medical leave and thereafter there was no psychiatrist on-site for the 1,400 prisoners at the prison. In July Mr. Souders was involved in a fight with another prisoner and was ordered to punitive detention. After 30 days he was released, but he was sent back to the segregation unit for taking an unauthorized shower during an August day in which the heat index was over 90.
He was put in a boxcar cell, meaning an essentially unventilated cell with no window and a solid metal door, rather than an open barred cell front, on the sixth level of the prison. When staff opened the food slot in one of the solid doors, which is how staff talked to people in those cells, on hot days they could feel a blast of hot air from inside the cell. During the next few days the heat index in the cells rose to around 100.
On August 2, 2006, Mr. Souders damaged the metal stool in his cell and was put into standing restraints. When he tried to flood his sink, according to prison records, a supervisory nurse approved cutting off the water to the cell – a restriction removed only because someone noticed that the whole prison was on heat alert status. Mr. Souders was then put into top-of-bed restraints, with metal restraints on his wrists and ankles on a concrete slab. Use of this type of restraints is well known to carry a risk of death from asphyxiation, heart attack and dehydration.
That day, the psychologist who was in charge of mental health services for the prison characterized Mr. Souders as “floridly psychotic.” From August 2 through August 5, the segregation log and the video camera used in his cell document that Mr. Souders was repeatedly screaming incoherently. Between August 2 and August 6, Mr. Souders rarely accepted water. During the first two days he was in restraints, the video camera used by staff to film him fogged up and staff com-plained of the heat and humidity in his cell. As the use of restraints continued, Mr. Souders was held in restraints naked. He urinated in his restraints and developed burn-like sores on his body from lying in his own waste. At one point, prison records indicate that Mr. Souders was transported to the prison’s unaccredited on-site “hospital,” but the physician there declined to examine him, apparently because he urinated on the examining table.
On August 6, prison guards walked him to the showers; the video shows him staggering. Shortly thereafter the restraints were removed. He then fell to the floor of his cell and was unable to get up. Guards returned him to the slab. A nurse examined Mr. Souders in his cell and told him that his pulse was faint, a symptom that indicated he had experienced a drastic fall in his cardiac output. The nurse then left the cell without doing anything to assist him. For the next hour there was no movement in the cell. Then staff reentered the cell because Mr. Souders did not appear to be breath-ing. He was pronounced dead shortly thereafter, at the age of 21. [See: PLN, May 2007, pp.1, 7, 8].
Michigan allows “limited license psychologists” to treat prisoners absent supervision even though they are not eligible to treat people in the community without supervision by a fully-licensed psychologist. The limited-license psychologist who last saw Mr. Souders alive had an undergraduate degree in theology and a master’s degree in community counseling. This limited-license psychologist had seen the psychologist who was officially “supervising” him once, from a distance, in the preceding year. The head psychologist who diagnosed Mr. Souders as floridly psychotic was a psychiatric social worker and also was not licensed to practice in the community without formal supervision. Aside from the prison system’s employment of staff who are not fully licensed, staff demonstrated a pervasive indifference to community standards of care, as illustrated by the psychiatrist’s failure to perform routine tests for toxic levels of lithium that any psychiatrist in the community would have required.
Staff resources were severely stressed. The Director of Nursing at the prison where Mr. Souders died testified that the prison complex needed about 11 more registered nurses to deliver health care. Almost a third of the registered nursing positions were filled by licensed practical nurses. Even today, despite Mr. Souders’ death, the Department has no policy that requires large prisons with segregation units, which are typically full of the mentally ill, to have on-site psychiatrists.
The medical staff operate in a culture of deference to prison security staff that interferes with care. That culture ex-plains the behavior of the nurse who told security that there was no reason Mr. Souders could not be placed on a water restriction despite his medical problems and the conditions within his boxcar cell. It similarly explains the conduct of the doctor who knew of Mr. Souders’ urine burns but neither treated him nor objected to the use of restraints by security. That culture also explains how a registered nurse could fail to initiate treatment when he learned that Mr. Souders had developed a weak pulse. All of these individual failures took place in a context in which no medical or mental health staff perceived a need to intervene. Nor did any medical staff question why security made the decision to put a mentally ill man into restraints. Nor did anyone question leaving a man in restraints within a boxcar cell where staff could not readily ob-serve him. As the medical director for the Michigan prison system admitted, he thought that there was ample opportunity for medical, mental health and security staff to intervene, but it never happened.
An autopsy determined that the cause of Mr. Souders’ death was hyperthermia, with dehydration a secondary cause, but it characterized the death as “accidental.” While no one has asserted that any staff member actively desired the death of Mr. Souders, I cannot accept the claim that the death was an accident. Rather, the death of Mr. Souders and other victims followed inevitably from the decision of the State of Michigan to imprison almost 50,000 people but fail to provide the resources necessary to provide them with minimally adequate health care, combined with a staff culture of willful blind-ness to the risks that this lack of care entailed.
II. Just Another Brick in The Wall
As might be expected from the number and variety of deficiencies in medical and mental health care implicated in the death of Timothy Souders, his death took place against a backdrop of systemically inadequate care. For some years, the Michigan prison system has chosen to concentrate its sickest prisoners in the Hadix facilities. As of early 2007, at the largest Hadix prison, half of the prisoners suffered from at least one chronic disease requiring ongoing treatment. The ap-parent reason for this concentration of chronically ill prisoners was the proximity of Duane Waters Hospital, run by the Department of Corrections. The hospital was required under a Consent Decree entered early in the Hadix litigation. For a substantial period of time, the hospital was accredited by the Joint Commission on Health Care Organizations, but that accreditation has now lapsed. Despite the lack of accreditation, the Department of Corrections continued to allow a surgeon who lacked admitting privileges at any hospital to perform surgery there.
Thus, although the Hadix facilities have served as the linchpin of the Michigan prison health care system, that linchpin is malfunctioning. The Hadix court made findings in 2002 regarding hundreds of incidents in which prisoners received in-adequate or delayed care, or no care at all. These findings included cases in which the medical system failed to provide timely access to prisoners with urgent and emergent serious medical problems, including failures resulting in death. Sub-sequent findings by the court-appointed medical monitor, Robert Cohen, M.D., described multiple medical failures, including a prisoner who died of an untreated “staph” infection and gastrointestinal bleeding; an HIV patient with difficulty in swallowing who, despite a weight loss to 108 pounds, was denied the pureed diet he needed to eat; and a diabetic who predictably died of hypoglycemia after gross failures of treatment and monitoring, accompanied by a failure to respond to his emergency needs.
The court medical monitor and the Director of Medical Care for the Department of Corrections, a physician, jointly reviewed six randomly-selected medical records of Hadix class members whose specialty care appointments had been delayed. In one case, there were no apparent consequences from the delay; in a second case, the only effect may have been to force the prisoner to experience unnecessary pain. In the other four cases, the Hadix court concluded, the delay exposed the prisoners to the “prospect of unnecessary death and grossly unnecessary suffering.”7
These cases included a man allowed to go untreated for an extended period without diagnosis or treatment for a kidney stone that was rendering his kidney non-functional. Another man with textbook signs of an impending heart attack was improperly scheduled to be seen in thirty days rather than immediately. By the time he was seen, he was lucky to survive his emergency by-pass surgery. Another patient with known symptoms of bowel cancer had his diagnosis delayed for over a year. He proved to have an abnormal, potentially pre-cancerous lesion. Perhaps equally striking, after the diag-nosis the patient was not scheduled for follow-up until his case was discovered in the random case review.
The last patient whose file was randomly chosen for review had complained that a mole on his back was increasing in size. He kited repeatedly and was diagnosed with “melanocystic skin mole” that needed to be “watched closely.” Nonetheless, a subsequent medical order to remove the mole in two weeks resulted in no treatment; a nurse told him to apply a hot compress to the mole. Over six months after he began kiting, in January 2006, he saw medical staff again, by which time the mole had grown into a black-red mass with irregular margins and bleeding. About two weeks later, a pathology report indicated malignant melanoma. He did not receive the next necessary step in the diagnostic process, a sentinel-node biopsy to determine whether he had metastatic cancer, until April 2006. That biopsy showed that the cancer had spread while he was not receiving treatment.
Unfortunately, the mistreatment of this patient did not end despite the Hadix court’s December 2006 opinion noting the previous delays in diagnosing his cancer. The medical monitor subsequently discovered that the patient’s chemotherapy had been significantly interrupted when staff did not order his cancer treatment drugs in a timely manner. When the drugs were ordered, staff specified an insufficient quantity for the chemotherapy.
These delays in care took place in the context of a system that allowed 30-40% of cancer patients at any given time not to receive treatment within the time frames set by their physicians, even though, the Hadix court found, those physicians often set dates for patients to be seen that were too far in the future, and often failed to take appropriate initial diagnostic steps for timely diagnosis of cancer. For example, another patient waited nine months for a biopsy of his suspected cancer. He finally received a biopsy diagnosing prostate cancer on March 19, 2007. As of early July 2007, the patient had developed bloody urine and was still not yet scheduled for surgery.
The medication distribution system is also broken. A randomized study of medication prescription and renewal by the medical monitor’s office concluded that each month hundreds of prisoners kited within the Hadix facilities because their medications had been interrupted. There is no functioning system to assure renewals of medications even when staff know of the need for renewals. As a result, even HIV medications go unrenewed. Although the problem is widely known among health care staff, nothing is done to address the problem. In fact, a physician in the Hadix facilities refused to re-new medications in a timely fashion. The medical monitor documented that medications records containing medication renewal requests, abnormal laboratory test results and specialty consultation reports piled up unread in physicians’ of-fices. The monitor also documented waits of three to four weeks to see a physician, with physicians canceling scheduled patient appointments without cause.
As of the last date for which I have data, half of the registered nurses positions were not filled by permanent staff. Of those filled by temporary contract staff, 60% of the positions were filled by licensed practical nurses rather than registered nurses. As a result, licensed practical nurses take actions that they are not qualified to perform. The nursing shortages also result in medical kites from prisoners going unanswered for days at a time.
Medical treatment was equally bad at the dialysis unit, where a number of prisoners with the most complex medical problems are housed. An outside nephrologist review reported that the medical director “appeared disengaged,” and that there were serious deficiencies in water testing and documentation, management of vascular access complications, blood pressure management, delayed specialty care referrals and testing, medication continuity, and emergency care.8 Registered nurses assigned to the dialysis unit have been administering medications in a variety of unapproved ways, including relabeling medications dispensed by the pharmacist for prisoners who have left the facility in order to administer them to other prisoners, failing to check medication orders correctly before administering them to prisoners, and relying on an outmoded system to check that the correct medications are administered.
Further, in part because medications are not being consistently ordered electronically, the medication regimes for the dialysis patients are frequently interrupted. According to a review by the medical monitor, 61% of the dialysis prisoners experienced delays or interruptions of their prescribed medications. Although dialysis puts patients at risk for sepsis, most of the intravenous medications on hand to treat septic patients following hospital discharge are months or years past their expiration date, even though there can be a three-day delay in the dialysis unit’s ability to obtain new supplies of such medications.
Dialysis patients needing specialty care (other than urgent surgery when vascular access for dialysis fails) frequently do not receive that care or receive it only after significant delays. As of December 2007, a dialysis patient with a cerebral aneurysm had been waiting since June 2007 for surgery. Another patient was receiving dialysis through a perma-catheter in his chest wall, which is a dangerous method for dialysis access because of the heightened risk of infection it poses. The patient was delayed between September and December 2007 in obtaining surgery to create a standard arteriovenous shunt for dialysis. Shortly after the surgery he was found to have a blood infection and was started on intravenous antibiotics.
A nephrologist consultant for the monitor’s office reviewed the deaths of a number of dialysis patients. One of those deaths involved a prisoner whose cardiac symptoms were ignored over a long period, except for one physician’s attempt to obtain a stress test for him. The prison’s contract medical provider, Correctional Medical Services, Inc. (CMS), denied the request. Subsequently, the patient died of cardiac arrest after his dialysis was delayed despite a life-threatening eleva-tion in his potassium level. Another dialysis patient died of a brain hemorrhage after his blood pressure problems were ignored and mistreated by medical staff for a year. He was treated with a single medication that cannot safely be used as a sole medication for severe hypertension, and his death, according to the report, was directly related to his severe, un-controlled and inappropriately managed blood pressure and failure to ensure accurate medication administration.
Another dialysis death occurred after staff failed to note increasing evidence of unstable cardiac disease. Although one of the patient’s physicians did note that he needed an echocardiogram, the test was not performed. A nurse who thereafter saw the patient at a time the patient was experiencing classic symptoms of unstable angina did not make a referral to a phy-sician. A month later, the physician again remarked that the patient needed an echocardiogram, but the test was not ordered. The following month the patient was finally sent to a hospital where he was diagnosed with a heart attack, and he died of cardiac arrest following by-pass surgery. Another patient died after a delay in summoning an ambulance after the patient experienced a heart attack. The autopsy indicated that he had a structurally normal heart, so that prompt treatment of the heart attack might have saved his life.
After years of reviewing the failures of medical and mental health care, it is perhaps not surprising that the federal judge assigned to Hadix wrote that
[T]here are a large number of complicated cases with interdisciplinary problems that unfortunately are being regularly mistreated and/or ignored by staff. The phenomenon is now a regular feature of the system.9
Understanding how such a prison staff culture could become embedded requires a consideration of the larger policies that have shaped the Michigan criminal justice system.
III. Money for Nothing
As of the last available statistics, Michigan had per-prisoner medical costs that were about 108% of the national aver-age. I consider the more significant statistic that Michigan spent $2,841 per prisoner on medical care in 2001, at a time when national spending on medical care was $4,370 per person per year. Of at least equal significance, Michigan has been receiving limited value for the money that it does spend on prison health care. According to a report by the National Commission on Correctional Health Care (NCCHC), commissioned by the Michigan Department of Corrections (MDOC), Michigan is getting poor value for the $300 million per year that it currently spends on prison medical care. Part of the problem, according to the report, was that Michigan contracts out physician services (other than psychiatrists) to CMS.
An NCCHC reviewer became concerned about the level of cognitive functioning of one of the CMS physicians. The physician’s medical records had so many errors of spelling and language use that parts of them were incomprehensible. When the reviewer asked supervisors about this physician, the supervisors were familiar with the problem but none believed he or she had the power to take action.10
In addition, under its contract with the state, CMS pays for off-site specialty care and also decides whether a physician will be allowed to refer a prisoner for such care. As the NCCHC report notes, the fact that the physicians work for CMS may explain why they rarely challenge the decision of CMS reviewers to deny their requests for specialty referrals. Similarly, this fact may explain why 30-40% of cancer patients, as noted earlier, experienced disruptions in their chemo-therapy under this system.
A subsidiary of CMS, PharmaCorr, provides pharmacy services for the prison system. PharmaCorr is not required to provide a consulting pharmacist under the contract. Staff reported to the NCCHC that they experienced delays in receiving medications for “same day” delivery under the contract, which is not surprising because PharmaCorr ships all its medications to Michigan from its warehouse in Oklahoma. The report also found that the formulary (a list of medications that a physician can prescribe without any additional authorization from a reviewer) lacked classes of medications that are commonly included in the formularies of large health care organizations, and the procedures for ordering non-formulary medications could pose serious safety concerns, aside from the paperwork burden posed by the inadequacies of the formulary.
The process for dispensation of medication is unnecessarily time-consuming and wasteful. The medical records, which are partly electronic and partly paper, pose a barrier to patient care and decrease the productivity of staff, in significant part because of problems with the electronic medical records system that Michigan uses. In fact, Serapis, the electronic medical records system, is so flawed that the NCCHC recommended that if Michigan intends to continue using it for any purpose, it should at least stop using it to record certain medical functions, instead reverting to paper records.
The report also commented that the MDOC was “one of the most bureaucratic systems we have ever encountered,” and questioned whether the proliferation of bureaucratic procedures of dubious value undermined the system’s ability to complete necessary procedures. The proliferation of paperwork is “even worse” in health care, with the 51 Michigan prisons generating hundreds of reports each month that the NCCHC doubted would be read by anyone.
At the same time, the productivity of CMS medical staff was strikingly low. While the reviewers expected physicians to see an average of 20 patients per day, most CMS providers averaged 8-12 per day, and one provider averaged five per day. The NCCHC identified three factors contributing to the low productivity: Serapis, the poorly functioning electronic medical record system; certain prison rules; and the fact that the medical care providers are not employees of the MDOC.
The third point is the heart of the matter, according to the NCCHC report:
The providers have no incentive other than their own professionalism to see more patients. All MDOC facilities have been completing [provider] Productivity Reports for several years. The [MDOC Bureau of Health Care] administration says they cannot do anything about the situation, because they do not supervise the [providers]. They send the information on to the CMS administration, but nothing ever changes. We were told by several MDOC staff that CMS administrators say they cannot tell the [providers] what to do, because they are independent contractors and not employees. Whatever the truth is, this situation must change.
***
The MDOC should seriously reconsider the advantages and disadvantages of continuing to contract out provider services.
Not surprisingly, the report also found that the system lacked an effective quality improvement program, or a functioning peer review system to assure health care quality. Instead, the system’s ostensible quality improvement system amounted to mere “paper pushing.”
Many if not all of the problems the report identified stemmed from Michigan’s failure to write a proper contract with CMS and other contractors, including the company that provided the Serapis program. The NCCHC reviewers were told that CMS often unilaterally reduced its staff coverage for a particular position from five days a week to two days a week, and the contract did not provide any disincentive for CMS doing so. In fact, the contract allows the prison system to require CMS to fill those hours, but the system has not insisted on full staffing. Perhaps most damning, over the ten years of the contract, the NCCHC monitors were not provided with a single monitoring report, although the state was supposed to perform regular audits and CMS was supposed to be assessed liquidated damages at any facility that failed to achieve a designated level of compliance. Notwithstanding this provision, not a single claim for liquidated damages was ever made by the state:
Many staff verbalized that they had “heard from Lansing” [where the headquarters of the MDOC is located] that the MDOC simply needs to make the relationship with CMS “work.” Whether or not anyone in the MDOC central office actually said this, this is what staff perceives. The most glaring example of this is practitioner staffing shortages. ... Staff speculates that if the MDOC and CMS were operating in a truly arm’s length relationship, there should be an immediate response from the MDOC followed by a rapid termination of the contract.
Although the causes differ in part, the mental health program is also strikingly inefficient. The program is divided between the Michigan Department of Community Health, which provides psychiatrists and certain other staff, and the MDOC, which provides most of the psychologists. Certain prisoners are placed on the out-patient mental health team case load, and these prisoners have their mental health care provided by the Department of Community Health. All of the other prisoners supposedly have their health care provided by the MDOC, including identification and initial treatment of patients experiencing a mental health crisis. This organizational structure is cumbersome and wastes resources. It also creates problems because of disagreements between the two entities as to whether a prisoner needs treatment, and allows staff to disclaim responsibility for services that they consider not within their duties.
IV. Trouble Ahead, Trouble Behind
Michigan citizens are justly proud that their state supports one of the nation’s finest public universities, including a leading medical school. In my view, they should also be proud that the state lacks a judicially-imposed death penalty. Unfortunately, as the death of Mr. Souders and many others illustrate, Michigan now has a randomly imposed death penalty for too many prisoners who have the misfortune to suffer from serious medical needs, and this accidental death penalty stems directly from public policy choices that have resulted in an underfunded prison system confining prisoners for whom it is unable to provide minimally adequate medial care.
Michigan has the sixth largest prison population among the states, although it ranks eighth in total population. Three states with larger total populations – Ohio, Illinois and Pennsylvania – have smaller prison populations. Michigan’s comparatively high rank in prison size reflects its comparatively high incarceration rate. This rate is an outlier in the Midwest region, and ten of the eleven other states in the region have rates lower than Michigan’s.
Nor can Michigan’s high incarceration rate be explained simply by its crime rate. Michigan has the eleventh highest incarceration rate in the country, although it ranks seventeenth in crime rates.11
Incarceration rates are as much influenced by criminal justice sentencing policies as by crime rates. Only three of the eleven states with the highest incarceration rates have crime rates that also rank in the top eleven among the states. While crime rates matter in determining incarceration rates, criminal justice policies related to prosecution, sentencing and parole matter at least as much.
Michigan has adopted a relatively punitive set of criminal justice policies, in significant part related to its history of extraordinarily tough punishment for drug offenders. In 1978, the state legislature imposed a mandatory punishment of life imprisonment without parole for persons convicted of possession of 650 grams of cocaine or heroin. Not even convictions for rape or mayhem were punished as harshly as persons punished under this drug possession statute; the only other crime that Michigan punished equally harshly was first degree murder. No other jurisdiction imposed a mandatory sentence of life imprisonment without parole for first-time possession of illegal drugs in comparable quantities. Although Michigan’s mandatory life sentence for drug possession statutes were repealed in 1998, and prisoners convicted under the law subsequently received parole eligibility, in the last five years the Parole Board has granted parole to eligible lifers at the rate of 0.2% per year.
In 2002-2003, more than 9% of the Michigan prison population was serving a life sentence, amounting to almost 4,600 prisoners. As of 2002-2003, Michigan had the fourth-largest number of lifers of any prison system in the nation. More than half of those prisoners were serving life without the possibility of parole. For lifers who were eligible for parole, the average sentence length for those who gained release increased to an average of 23.2 years during 2000-2004. Apparently many of the lifers released in those years were released on medical parole, which typically implies that the prisoner has a terminal illness or some other incapacitating medical or mental health condition. Thus, the combination of a large state population, a relatively high crime rate, and a particularly severe set of sentencing and release policies have resulted in nearly 50,000 prisoners behind bars.
V. And It’s a Hard Rains A-Gonna Fall
Michigan’s criminal justice system combines a number of elements that fuel a particularly expensive prison system – that is, a state with a large population; a state with a very high incarceration rate and aging prisoner population, reflecting a history of unusually punitive criminal justice policies; and a state that receives poor value for its expenditures on prison health care. In addition, Michigan, unlike the majority of the states with comparatively high incarceration rates, also has comparatively high per-prisoner incarceration costs. Locking people in prison is, under any circumstances, an expensive business, and Michigan policy makers appear to have done virtually everything within their power to make it more expensive.
By 2003, the nation spent $61 billion just on corrections, out of a total spending on the criminal justice system of $186 billion. The most recent available figures for the cost of incarceration per prisoner average $23,876. That average cost, however, is subject to wide variation. If we look at the eleven states including Michigan with the highest incarceration rates in the country, we find that six of them rank among the ten states with the lowest per-prisoner costs.12
Michigan is the only state with a high incarceration rate that also ranks above the state median in per-prisoner cost. In fact, Michigan ranks well above the national average cost of incarceration, and it is the only state among the 11 with the highest incarceration rates that has a per-prisoner cost that exceeds the national average.
The major reason for the high per-prisoner cost is staff wages and benefits. The approximately 50,000 Michigan prisoners cost the state an average of $28,743 per prisoner, in contrast to the national average per-prisoner cost of $23,876. A Pew Charitable Trust analysis found that the two critical factors in determining comparative per-prisoner incarceration costs among the states are variations in the cost of employee wages and benefits, and variations in the prisoner-to-staff ratio.13 In a 2002 survey, base pay for correctional officers in Michigan was the sixth highest in the country. Wages and benefits have made up 71% of the total operating costs of the Michigan prison system, although on average these expenses in state correctional systems account for about two-thirds of the systems’ total operating costs.
Aside from the fact that MDOC wages and benefits account for a somewhat high percentage of operating expenses, there is other evidence that its comparatively high per-prisoner cost does not reflect a high ratio of staff to prisoners. The union that represents correctional officers in Michigan claims that the number of state correctional officers declined from 10,600 to 9,200 between 2000 and 2005, despite an increase of several thousand in the prison population.
Michigan can no longer afford to pursue this discordant cluster of policies. Most states that provide abysmal medical care at least get what they pay for; Michigan cannot even make that statement. Even in the best of times, high incarceration rates combined with high incarceration costs result in difficult financial burdens, as large numbers of states have recognized. Because of the state’s high number of lifers and long sentences for drug crimes, Michigan’s prison population contains many older prisoners who tend to need more expensive medical care. When one adds in high staff costs and the waste of large amounts of money in the dysfunctional medical care system, the cost of the system would not be sustain-able over the long term in relatively good economic times.
Of course, these are not good economic times, particularly in Michigan. For over a year, the state has been caught up in a “one-state recession,” with the highest unemployment rate in the nation. As the economic downturn has worsened, the state has experienced a major budget crisis. Part of the MDOC’s response to the reduction in its share of the state budget was to close the Southern Michigan Correctional Facility, the prison where Mr. Souders and many others died. I have no doubt that the major motivating factor for the closure was the desire to save money by moving the concentrated population of sick prisoners to prisons not covered by the Hadix consent decree. Now that these high-risk prisoners have been dispersed throughout the system, it is highly likely that their medical care will deteriorate further. [See: PLN, Dec. 2007, p.26].
Aside from the moral responsibility that Michigan politicians and the MDOC bear for Mr. Souders’ death and their refusal to prevent future deaths, the current cluster of policies and practices are on a collision course with reality. Michigan taxpayers have been stuck with large jury damages awards related to some of these deaths. The estate of Jeffrey Clark, a prisoner at the Bellamy Creek Correctional Facility in Michigan, was awarded $2,750,000 by a federal jury based on his death from dehydration in a hot cell after prison staff turned off the water in his cell and failed to give him water to drink at a time when he suffered from apparent mental illness. [See: PLN, Dec. 2008, p.9]. A damages action on behalf of the estate of Timothy Souders was settled for $3.6 million in June 2008. [See: PLN, March 2009, p.41]. More recently, the state settled with a large number of current and former female prisoners who had been subjected to rape or other forms of sexual abuse for an astounding $100 million [PLN, Dec. 2009, p.30]. The MDOC also risks new class actions seeking injunctive relief at the prisons to which large numbers of chronically ill prisoners were transferred after the closure of the Southern Michigan Correctional Facility.
More importantly, until Michigan fundamentally reforms its sentencing and parole policies, as well as its system for delivering health care, prisoners like Timothy Souders will continue to suffer a death sentence for the “crime” of being men-tally or physically ill. Until fundamental change occurs, I can only echo the words of Richard A. Enslen, the Hadix federal judge who brought to public attention the failures in the Michigan system: “Say a prayer for [Timothy Souders] and the others who have passed. Any earthly help comes far too late for them.”14
Postscript
In September 2007, a panel of the Sixth Circuit Court of Appeals, composed entirely of judges appointed by former President George W. Bush, remanded but did not vacate the relief ordered by Judge Enslen in an opinion that did not rule on the merits.15 On remand, a new federal district judge, also appointed by former President Bush, terminated the injunctive relief on mental health care ordered by Judge Enslen. Plaintiffs appealed to the Sixth Circuit from that ruling.
Ironically, at the same time that the prisoners have been denied relief by the federal courts, the deadly medical care revealed by the Hadix litigation led to a substantial public outcry that, in addition to forcing the Governor to ask the National Commission on Correctional Health Care to prepare its critical report, forced the Department of Corrections to act. The unfavorable media attention culminated in a 60 Minutes story in February 2007.
In response, and also presumably spurred by the financial crisis that hit Michigan particularly hard, the MDOC took steps that significantly increased parole grants, reduced parole revocations and increased the number of prisoners given compassionate medical release. Of particular note, parole revocations are down by 42% since their high-water mark in 2002. As a re-sult, the prison population has fallen by about eight percent, and even this calculation does not take into account that, before these steps, the population had been increasing by about 160 prisoners a month.
It remains to be seen whether these policies will be maintained after the financial crisis eases, despite the MDOC’s astounding admission that increased incarceration “may actually increase crime in Michigan because of the high unemployment rate among former prisoners and the reduced funding available for education.”16
Ed. Note: See the related article in this issue of PLN, “Hadix Litigation Winding Down,” for more recent developments in the Hadix case after this article was written.
ENDNOTES
1. Elizabeth Alexander is the former Director of the National Prison Project of the American Civil Liberties Union Foundation. This article is reprinted in modified form with the permission of the author and the University of Pennsylvania Journal of Constitutional Law, where it was originally published (Vol. 11:1, Dec. 2008).
2. See, e.g., Hadix v. Caruso, 465 F.Supp.2d 776, 778-79 (W.D. Mich. 2006), rem., 248 Fed.Appx. 678 (6th Cir. 2007) (per curiam) [PLN, May 2007, p.7; Dec. 2007, p.26]. Until recent years, the case was known as Hadix v. Johnson, and generated a large number of judicial opinions. See, e.g., Hadix v. Johnson, 367 F.3d 513 (6th Cir. 2004) (remanding finding of constitutional violation regarding fire safety).
3. Rhodes v. Chapman, 452 U.S. 337, 348-49 (1981) (overcrowding not shown to inflict wanton pain or lead to deprivation of basic necessities such as food does not violate the Eighth Amendment).
4. Wilson v. Seiter, 501 U.S. 294, 301-302 (1991) (responding to argument that requiring a showing that prison officials were deliberately indifferent before prison conditions would violate the Eighth Amendment would allow prison officials to prevail by showing fiscal constraints stating that interpretation of the Eighth Amendment is controlled by its language, not policy considerations).
5. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994) (defining the deliberate indifference standard required to show an Eighth Amendment violation in prison conditions in a manner parallel to the criminal recklessness standard) [PLN, July 1994, p.1].
6. Hadix v. Caruso, 461 F.Supp.2d 574, 577, 579 (W.D. Mich. 2006), rem., 248 Fed.Appx. 678 (6th Cir. 2007) (per curiam). My descriptions of Mr. Souders’ death and medical care within the Michigan prisons are based on the record in Hadix, including this decision.
7. Hadix v. Caruso, 465 F.Supp.2d at 786.
8. Eric M. Gibney, Report to the Office of the Independent Medical Monitor: Dialysis Patient Medication Report 10-12 (undated) (on file with the au-thor) [See also: PLN, April 2009, p.22].
9. Hadix v. Caruso, 461 F.Supp.2d at 598.
10. Nat’l Comm’n on Corr. Health Care, A Comprehensive Assessment of the Michigan Department of Corrections Health Care System, 8 (2008), available at www.michigan.gov/documents/corrections/Final_MDOC_HCS_Report_222383_7.pdf. [PLN, Oct. 2008, p.16].
11. U.S. Census Bureau, Statistical Abstract of the United States: Violent Crime Per 100,000 Population–2004, www.census.gov/prod/2004pubs/04statab/law.pdf.
12. This data is derived from the Public Safety Performance Project, Pew Charitable Trusts, “Public Safety, Public Spending: Forecasting America’s Prison Population 2007–2011,” at 27 (rev. 2007), www.pewcenteronthestates.org/uploadedFiles/Public Safety Public Spending.pdf and from the Pew Center on the States, “One in 100: Behind Bars in America 2008,” at 11 (Feb. 2008), www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf.
13. Id.
14. Hadix v. Caruso, 461 F.Supp.2d at 576.
15. Hadix v. Caruso, 248 Fed.Appx. 678 (6th Cir. 2007) (per curiam) [PLN, Dec. 2007, p.26].
16. Michigan Department of Corrections, Policy Reforms that Reduce Corrections Spending,
(April 2009), available at www.nga.org/Files/pdf/0904JUSTICEMI.PDF.
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Related legal cases
Hadix v. Caruso
| Year | 2007 |
|---|---|
| Cite | 248 Fed.Appx. 678 (6th Cir. 2007) |
| Level | Court of Appeals |
248 Fed. Appx. 678, *; 2007 U.S. App. LEXIS 22894, **;
2007 FED App. 0686N (6th Cir.)
EVERETT HADIX, et al., Plaintiffs-Appellees, v. PATRICIA L. CARUSO, et al., Defendants-Appellants.
Nos. 06-2591, 06-2628, 07-1344, 07-1503, 07-1608, 07-1609
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
07a0686n.06; 248 Fed. Appx. 678; 2007 U.S. App. LEXIS 22894; 2007 FED App. 0686N (6th Cir.)
September 21, 2007, Filed
OPINION
[*679] PER CURIAM. In this consolidated appeal, the State of Michigan challenges six district court orders arising from a consent decree that governs the conditions of confinement at several Michigan prison facilities. Because a recent opinion by the district court may moot some of these appeals, because the State has agreed to comply with some of the orders underlying these appeals and because both the State's planned closing of one prison and the district court's recent decision narrow the scope of these disputes, [**3] we remand the orders to the district court to determine which ones, if any, have become moot and to determine the scope of the dispute underlying the remaining orders.
I.
The six appeals share a common history: They all arise from a lawsuit filed by several prisoners in 1980 about their conditions of confinement and the consent decree approved by the district court in 1985 that arose from this litigation. The original consent decree governed various aspects of prison conditions, including in-cell temperatures, medical care and mental health care, in what have become known as the Hadix Michigan prison facilities. Since its initial approval of the consent decree, the district court has modified or terminated several of its provisions. Of particular relevance here, after the passage of the Prison Litigation Reform Act of 1995 (PLRA) and after the conclusion of litigation challenging the constitutionality of that legislation, the district court in 2001 granted the State's motion to terminate the mental health care portion of the decree, finding no "current and ongoing" constitutional violations. See 18 U.S.C. § 3626(b)(2)-(3).
Today's round of litigation stems primarily from two developments: [**4] (1) the death of a Hadix inmate in August 2006 (which, according to the plaintiffs, exposes ongoing deficiencies in the Hadix facilities) and (2) the State's recent decision to close certain Hadix facilities and transfer the affected inmates to other non-Hadix facilities as part of a cost-savings plan. In the aftermath of these events and in response to several motions filed by the plaintiffs, the district court issued a series of orders.
First, on November 13, 2006, the district court granted the plaintiffs' motion under Federal Rule of Civil Procedure 60(b)(6) to reopen the mental health care portion of the consent decree, enjoined the State from using certain types of restraints within the Hadix facilities and ordered the State to take several actions related to mental health care. Hadix v. Caruso, 461 F. Supp. 2d 574, 599-600 (W.D. Mich. 2006).
[*680] Second, on December 7, 2006, the district court ordered the State to establish the Office of Independent Medical Monitor to oversee prisoner health care at the Hadix facilities and to take corrective actions where necessary. See Hadix v. Caruso, 465 F. Supp. 2d 776, 810-11 (W.D. Mich. 2006).
Third, on March 6, 2007, after the State's announcement [**5] of its intention to close one of the Hadix facilities (JMF) and transfer the affected inmates to non-Hadix facilities, the district court granted the plaintiffs' motion for a preliminary injunction to prevent the transfer of JMF inmates until the State submitted, and the court approved, a formal transfer plan. See Hadix v. Caruso, No. 4:92-CV-110, 2007 U.S. Dist. LEXIS 15605, 2007 WL 710136, at *2, 9 (W.D. Mich. Mar. 6, 2007).
Fourth, on April 3, 2007, the district court granted the plaintiffs a permanent injunction requiring the State to house "all prisoners classified at high-risk for heat-related injury . . . in areas in which the heat index is reliably maintained below a heat index of 90." Hadix v. Caruso, 492 F. Supp. 2d 743, 753 (W.D. Mich. 2007).
Fifth, on May 4, 2007, the district court rejected the State's transfer plans, submitted in response to the March 6 order, finding several deficiencies in the plans. See Hadix v. Caruso, No. 4:92-CV-110, 2007 U.S. Dist. LEXIS 33040, 2007 WL 1341958, at *1-2 (W.D. Mich. May 4, 2007).
Sixth, on May 14, 2007, following the State's decision to close 8-Block, a unit that is part of a Hadix facility, and transfer the affected inmates to prison facility Buildings A and B, units not explicitly covered [**6] by the original consent decree, the district court terminated its jurisdiction over 8-Block but began exercising jurisdiction over Buildings A and B based on its conclusion that those buildings are "de facto Hadix facilities." Hadix v. Caruso, No. 4:92-CV-110, 2007 WL 1434795, at * 1-2 (W.D. Mich. May 14, 2007). The State appealed this order with respect only to Building A.
After the district court rejected its transfer plans on May 4, the State sought a stay pending appeal of that order and the related March 6 order. On June 22, this court stayed those orders "to the extent that they enjoin or prevent the transfer of the non-special needs prisoners from [JMF]" and denied them "with respect to the special needs prisoners." Hadix v. Caruso, Order, Nos. 07-1344/1608, at 3-4 (6th Cir. June 22, 2007). As to the State's plan to transfer special needs prisoners, the court directed the district court to reconsider the validity of that plan and to "address[] the following issues: 1) whether transfer evaluations are to be undertaken on an inmate-by-inmate basis or on a facility-by-facility basis; 2) which party--the State or the plaintiffs--bears the burden of proof with respect to the medical [**7] care available at the non-Hadix facilities and the suitability of that care for each inmate; and 3) why does the State's transfer plan fall short of complying with the transfer requirements of the consent decree." Id. at 3. The court also expedited the briefing of these six appeals in light of the budgetary concerns underlying the State's efforts to close some of these facilities.
On September 8, less than one week before oral argument of these appeals (but consistent with our earlier order), the district court issued a decision directly affecting three of the cases on appeal and indirectly affecting the other three. The court held that SMT Building B is not a Hadix facility because it was not within the scope of the consent decree. Hadix v. Caruso, No. 4:92-CV-110, at 5-7, 2007 U.S. Dist. LEXIS 66530 (W.D. Mich. Sept. 8, 2007). The court accordingly terminated all injunctive [*681] relief relating to Building B. Id. 2007 U.S. Dist. LEXIS 66530, at *12.
The court also answered our June 22 questions. It held that transfer evaluations must be undertaken on an inmate-by-inmate basis. Id. 2007 U.S. Dist. LEXIS 66530, at *13. It held that the plaintiffs bear the burden of proof in connection with transfer evaluations. Id. 2007 U.S. Dist. LEXIS 66530, at *13-14. And it held that the State's "August transfer plan [**8] . . . complies fully with the transfer requirements of the Consent Decree." Id. 2007 U.S. Dist. LEXIS 66530, at *18. Recognizing that an appeal concerning an earlier transfer plan was pending before this court, the district court approved the State's August transfer plan but "stay[ed] the effectiveness of its approval until [this court] issues its mandate in the pending appeal." Id. 2007 U.S. Dist. LEXIS 66530, at *22. The court also granted one of the plaintiffs' motions for contempt sanctions (relating to electronic medical records and pharmacy services) and denied the other (relating to mental health care). Id. 2007 U.S. Dist. LEXIS 66530, at *24, *30.
II.
A.
At oral argument and in briefs filed with us shortly before the argument, the State argued that, in view of the district court's September 8 decision approving the August transfer plan, its transfer-related appeals (from the March 6 and May 4 orders) are moot. The State also argued that another appeal relating to SMT Building A (from the May 14 order) is moot because the reasoning underlying the district court's September 8 decision concerning Building B applies equally to Building A. Rather than resolving these mootness claims without full briefing and argument by the parties, we think that the more prudent course [**9] is to allow the district court to assess these arguments in the first instance. We thus remand these three cases to the district court with instructions to address the State's arguments.
B.
That leaves the question of what we should do with the three remaining appeals: remand them to the district court for further consideration in light of these and other recent developments or decide them now? At oral argument, the State responded to this question by suggesting that we should remand the three remaining orders to the district court. As the State is the appellant in all six appeals (and thus could dismiss the appeals unilaterally if it wished), that view is not without some force. Adding force to that view is the following: considerable overlap exists between all six cases; the State has agreed to comply with several of the orders in recent months; the imminent closing of one of the Hadix facilities will likely narrow the scope of the parties' disagreements; and the district court's recent orders may affect the disputes underlying the three remaining appeals. Rather than attempting to address this moving target and rather than issuing rulings that time may make irrelevant, we believe [**10] that the better course, as we explain in more detail below, is to permit the parties and the district court to address these issues in the first instance.
1.
Recent events affect the State's appeal of the district court's November 13 decision reopening the mental health portion of the consent decree. If the State closes JMF, as it plans to do in the near future and as the district court has authorized, and if the district court rules that SMT Building A is no longer subject to the consent decree, the prisoner population of the Hadix facilities would change dramatically--and so would the number of Hadix [*682] prisoners needing mental health services. See Hadix, 461 F. Supp. 2d at 584 (indicating that "JMF currently [i.e., as of November 2006] houses 1,452 prisoners" and that "[a]ll but 219 of those prisoners are assigned to the JMF [Psychological Services Unit]"); id. at 585 (stating that "a very significant percentage of prisoners at [JMF] (which is largely housed with ill inmates due to its proximity to Duane Waters Hospital) experience significant mental illness on a regular basis and would benefit from regular treatment"). Coupled with the State's stated willingness to cure several of the [**11] other alleged deficiencies identified by the district court, these developments may facilitate the parties' ability to reach agreement on the mental health services needed in the remaining Hadix facilities and could affect the ongoing scope of the district court's November 13 order. If indeed the State closes JMF, for example, some portions of the district court's November 13 order assuredly will have little relevance--such as the requirement that the State's mental health care plan "must include additional staffing to ensure full-time psychiatric coverage at JMF." Id. at 597.
If the parties agree--or even partially agree--about the necessary mental health services and the appropriate use of restraints in the remaining Hadix facilities, or if some of the district court's initial orders become irrelevant, rulings by us on the constitutional and other questions arising from the district court's November 13 decision could become unnecessary or, at a minimum, could concern a dispute of a different magnitude from the one we face today. We therefore also remand this order to the district court--a course we believe is particularly prudent here given that "strong considerations of comity . [**12] . . require giving the States the first opportunity to correct the errors made in the internal administration of their prisons." Lewis v. Casey, 518 U.S. 343, 362, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996) (internal quotation marks omitted). To the extent the parties cannot agree on the steps necessary to cure the alleged mental health care deficiencies, the district court has the authority to order those remedies it believes are appropriate--or leave in place all or some of its current orders--and the parties remain free to appeal any such order or decision.
2.
Recent events also impact the State's appeal of the district court's December 7 decision establishing the Office of Independent Medical Monitor. For one, the closure of JMF likely will diminish the Medical Monitor's role given that it will have far fewer Hadix prisoners to monitor after the closing of that facility--a closure, says the State, that will occur within 45 days of the effective date of the district court's order accepting its August transfer plan. For another, the removal of SMT Building B (and possibly Building A) from the reach of the consent decree will diminish the role (and expense) of the Medical Monitor as well. For yet another, the district [**13] court's recent decision approving the State's August transfer plan implicitly calls into question some of the responsibilities and powers that the court previously gave to the Medical Monitor. For instance, in its March 6 decision, the court gave the Medical Monitor authority to review complaints from prisoners who allege that they are not receiving appropriate medical care in the non-Hadix facility to which they have been transferred and, if necessary, to order the State to return those prisoners to the Hadix facility. Hadix, 2007 U.S. Dist. LEXIS 15605, 2007 WL 710136, at *10. Yet, in its most recent decision, the district court suggested that giving the Medical Monitor such power would exceed the scope of the consent decree. See Hadix, Opinion at 14 (indicating that, "[i]f. . . actual conditions in a [*683] new facility violate the Constitution, a proper plaintiff can . . . bring new litigation"). We find it difficult to reconcile those two decisions and believe it more prudent to give the district court an opportunity to address the point and to consider whether recent developments make it necessary for the court to alter the Medical Monitor's authority and mandate. We therefore remand this order to the district [**14] court as well.
3.
Recent events also affect the State's appeal of the district court's April 3 decision addressing heat-related issues in the Hadix facilities. One of the State's principal objections to the district court's April 3 decision is that, in light of the court's March 6 decision interrupting the closure of JMF, the State might have to install air conditioning in JMF even though it hopes and plans to close that facility in the very near future--that is, the State might have to pay significant capital expenditures that will have only a modest short-term benefit. Given the district court's recent approval of the State's transfer plan, however, and given the State's current assumption that it will be able to close JMF before next spring or summer--when the heat index may approach 90 again--the State's concern seems far less material. The State, as a result, may well be more inclined voluntarily to take steps at the remaining Hadix facilities, which the State plans to keep open for the foreseeable future, to satisfy the plaintiffs' heat-related concerns. If so, the need for us to rule on several of the difficult questions--including constitutional questions--raised in the State's [**15] appeal may disappear.
What is more, if the State is able to close JMF in the near future and if the district court declares that SMT Building A is no longer a "de facto Hadix" facility, the number of prisoners at risk for heat-related injury in the Hadix facilities (other than Duane Waters Hospital, which has air conditioning) will decrease significantly. See Hadix, 492 F. Supp. 2d at 746 (indicating that, as of September 2006, 523 JMF inmates and 634 Parnall (or SMT) inmates were "classified as having heat-related illnesses"). Most of the remaining prisoners in the Hadix facilities will be housed in RGC--a facility in which the average-prisoner stay, according to the State, is only 25 days and in which the number of prisoners with heat-related illnesses is quite low relative to JMF and SMT. See id. (indicating that, as of September 2006, 207 Egeler (or RGC) prisoners were classified as having heat-related illnesses); see also id. at 745 (explaining that one of the important factors in assessing an individual's risk of heat-related illness is "the length of exposure to extreme heat conditions"). Rather than speculate about how these potential changes in the Hadix facilities' prisoner [**16] population could affect the district court's previous orders concerning heat-related injury, we believe the more prudent course is to give the district court the opportunity to evaluate the issue in the first instance. Accordingly, we also remand this case.
C.
In closing, we wish to emphasize that, if the parties fail to resolve the remaining issues between themselves and if any party remains dissatisfied with any prior or future order of the district court, we stand ready to hear their concerns--including hearing their appeal on an expedited basis, if appropriate. In view of the budgetary concerns underlying the State's position in these cases and in view of the importance to the plaintiffs of resolving these issues sooner rather than later, we urge the parties and the district court to focus on, if not eliminate, the remaining areas of disagreement in the near term so that any renewed appeal or new appeal to this court [*684] may be heard by this panel no later than the spring of 2008.
III.
For these reasons, we remand all six cases to the district court.
2007 FED App. 0686N (6th Cir.)
EVERETT HADIX, et al., Plaintiffs-Appellees, v. PATRICIA L. CARUSO, et al., Defendants-Appellants.
Nos. 06-2591, 06-2628, 07-1344, 07-1503, 07-1608, 07-1609
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
07a0686n.06; 248 Fed. Appx. 678; 2007 U.S. App. LEXIS 22894; 2007 FED App. 0686N (6th Cir.)
September 21, 2007, Filed
OPINION
[*679] PER CURIAM. In this consolidated appeal, the State of Michigan challenges six district court orders arising from a consent decree that governs the conditions of confinement at several Michigan prison facilities. Because a recent opinion by the district court may moot some of these appeals, because the State has agreed to comply with some of the orders underlying these appeals and because both the State's planned closing of one prison and the district court's recent decision narrow the scope of these disputes, [**3] we remand the orders to the district court to determine which ones, if any, have become moot and to determine the scope of the dispute underlying the remaining orders.
I.
The six appeals share a common history: They all arise from a lawsuit filed by several prisoners in 1980 about their conditions of confinement and the consent decree approved by the district court in 1985 that arose from this litigation. The original consent decree governed various aspects of prison conditions, including in-cell temperatures, medical care and mental health care, in what have become known as the Hadix Michigan prison facilities. Since its initial approval of the consent decree, the district court has modified or terminated several of its provisions. Of particular relevance here, after the passage of the Prison Litigation Reform Act of 1995 (PLRA) and after the conclusion of litigation challenging the constitutionality of that legislation, the district court in 2001 granted the State's motion to terminate the mental health care portion of the decree, finding no "current and ongoing" constitutional violations. See 18 U.S.C. § 3626(b)(2)-(3).
Today's round of litigation stems primarily from two developments: [**4] (1) the death of a Hadix inmate in August 2006 (which, according to the plaintiffs, exposes ongoing deficiencies in the Hadix facilities) and (2) the State's recent decision to close certain Hadix facilities and transfer the affected inmates to other non-Hadix facilities as part of a cost-savings plan. In the aftermath of these events and in response to several motions filed by the plaintiffs, the district court issued a series of orders.
First, on November 13, 2006, the district court granted the plaintiffs' motion under Federal Rule of Civil Procedure 60(b)(6) to reopen the mental health care portion of the consent decree, enjoined the State from using certain types of restraints within the Hadix facilities and ordered the State to take several actions related to mental health care. Hadix v. Caruso, 461 F. Supp. 2d 574, 599-600 (W.D. Mich. 2006).
[*680] Second, on December 7, 2006, the district court ordered the State to establish the Office of Independent Medical Monitor to oversee prisoner health care at the Hadix facilities and to take corrective actions where necessary. See Hadix v. Caruso, 465 F. Supp. 2d 776, 810-11 (W.D. Mich. 2006).
Third, on March 6, 2007, after the State's announcement [**5] of its intention to close one of the Hadix facilities (JMF) and transfer the affected inmates to non-Hadix facilities, the district court granted the plaintiffs' motion for a preliminary injunction to prevent the transfer of JMF inmates until the State submitted, and the court approved, a formal transfer plan. See Hadix v. Caruso, No. 4:92-CV-110, 2007 U.S. Dist. LEXIS 15605, 2007 WL 710136, at *2, 9 (W.D. Mich. Mar. 6, 2007).
Fourth, on April 3, 2007, the district court granted the plaintiffs a permanent injunction requiring the State to house "all prisoners classified at high-risk for heat-related injury . . . in areas in which the heat index is reliably maintained below a heat index of 90." Hadix v. Caruso, 492 F. Supp. 2d 743, 753 (W.D. Mich. 2007).
Fifth, on May 4, 2007, the district court rejected the State's transfer plans, submitted in response to the March 6 order, finding several deficiencies in the plans. See Hadix v. Caruso, No. 4:92-CV-110, 2007 U.S. Dist. LEXIS 33040, 2007 WL 1341958, at *1-2 (W.D. Mich. May 4, 2007).
Sixth, on May 14, 2007, following the State's decision to close 8-Block, a unit that is part of a Hadix facility, and transfer the affected inmates to prison facility Buildings A and B, units not explicitly covered [**6] by the original consent decree, the district court terminated its jurisdiction over 8-Block but began exercising jurisdiction over Buildings A and B based on its conclusion that those buildings are "de facto Hadix facilities." Hadix v. Caruso, No. 4:92-CV-110, 2007 WL 1434795, at * 1-2 (W.D. Mich. May 14, 2007). The State appealed this order with respect only to Building A.
After the district court rejected its transfer plans on May 4, the State sought a stay pending appeal of that order and the related March 6 order. On June 22, this court stayed those orders "to the extent that they enjoin or prevent the transfer of the non-special needs prisoners from [JMF]" and denied them "with respect to the special needs prisoners." Hadix v. Caruso, Order, Nos. 07-1344/1608, at 3-4 (6th Cir. June 22, 2007). As to the State's plan to transfer special needs prisoners, the court directed the district court to reconsider the validity of that plan and to "address[] the following issues: 1) whether transfer evaluations are to be undertaken on an inmate-by-inmate basis or on a facility-by-facility basis; 2) which party--the State or the plaintiffs--bears the burden of proof with respect to the medical [**7] care available at the non-Hadix facilities and the suitability of that care for each inmate; and 3) why does the State's transfer plan fall short of complying with the transfer requirements of the consent decree." Id. at 3. The court also expedited the briefing of these six appeals in light of the budgetary concerns underlying the State's efforts to close some of these facilities.
On September 8, less than one week before oral argument of these appeals (but consistent with our earlier order), the district court issued a decision directly affecting three of the cases on appeal and indirectly affecting the other three. The court held that SMT Building B is not a Hadix facility because it was not within the scope of the consent decree. Hadix v. Caruso, No. 4:92-CV-110, at 5-7, 2007 U.S. Dist. LEXIS 66530 (W.D. Mich. Sept. 8, 2007). The court accordingly terminated all injunctive [*681] relief relating to Building B. Id. 2007 U.S. Dist. LEXIS 66530, at *12.
The court also answered our June 22 questions. It held that transfer evaluations must be undertaken on an inmate-by-inmate basis. Id. 2007 U.S. Dist. LEXIS 66530, at *13. It held that the plaintiffs bear the burden of proof in connection with transfer evaluations. Id. 2007 U.S. Dist. LEXIS 66530, at *13-14. And it held that the State's "August transfer plan [**8] . . . complies fully with the transfer requirements of the Consent Decree." Id. 2007 U.S. Dist. LEXIS 66530, at *18. Recognizing that an appeal concerning an earlier transfer plan was pending before this court, the district court approved the State's August transfer plan but "stay[ed] the effectiveness of its approval until [this court] issues its mandate in the pending appeal." Id. 2007 U.S. Dist. LEXIS 66530, at *22. The court also granted one of the plaintiffs' motions for contempt sanctions (relating to electronic medical records and pharmacy services) and denied the other (relating to mental health care). Id. 2007 U.S. Dist. LEXIS 66530, at *24, *30.
II.
A.
At oral argument and in briefs filed with us shortly before the argument, the State argued that, in view of the district court's September 8 decision approving the August transfer plan, its transfer-related appeals (from the March 6 and May 4 orders) are moot. The State also argued that another appeal relating to SMT Building A (from the May 14 order) is moot because the reasoning underlying the district court's September 8 decision concerning Building B applies equally to Building A. Rather than resolving these mootness claims without full briefing and argument by the parties, we think that the more prudent course [**9] is to allow the district court to assess these arguments in the first instance. We thus remand these three cases to the district court with instructions to address the State's arguments.
B.
That leaves the question of what we should do with the three remaining appeals: remand them to the district court for further consideration in light of these and other recent developments or decide them now? At oral argument, the State responded to this question by suggesting that we should remand the three remaining orders to the district court. As the State is the appellant in all six appeals (and thus could dismiss the appeals unilaterally if it wished), that view is not without some force. Adding force to that view is the following: considerable overlap exists between all six cases; the State has agreed to comply with several of the orders in recent months; the imminent closing of one of the Hadix facilities will likely narrow the scope of the parties' disagreements; and the district court's recent orders may affect the disputes underlying the three remaining appeals. Rather than attempting to address this moving target and rather than issuing rulings that time may make irrelevant, we believe [**10] that the better course, as we explain in more detail below, is to permit the parties and the district court to address these issues in the first instance.
1.
Recent events affect the State's appeal of the district court's November 13 decision reopening the mental health portion of the consent decree. If the State closes JMF, as it plans to do in the near future and as the district court has authorized, and if the district court rules that SMT Building A is no longer subject to the consent decree, the prisoner population of the Hadix facilities would change dramatically--and so would the number of Hadix [*682] prisoners needing mental health services. See Hadix, 461 F. Supp. 2d at 584 (indicating that "JMF currently [i.e., as of November 2006] houses 1,452 prisoners" and that "[a]ll but 219 of those prisoners are assigned to the JMF [Psychological Services Unit]"); id. at 585 (stating that "a very significant percentage of prisoners at [JMF] (which is largely housed with ill inmates due to its proximity to Duane Waters Hospital) experience significant mental illness on a regular basis and would benefit from regular treatment"). Coupled with the State's stated willingness to cure several of the [**11] other alleged deficiencies identified by the district court, these developments may facilitate the parties' ability to reach agreement on the mental health services needed in the remaining Hadix facilities and could affect the ongoing scope of the district court's November 13 order. If indeed the State closes JMF, for example, some portions of the district court's November 13 order assuredly will have little relevance--such as the requirement that the State's mental health care plan "must include additional staffing to ensure full-time psychiatric coverage at JMF." Id. at 597.
If the parties agree--or even partially agree--about the necessary mental health services and the appropriate use of restraints in the remaining Hadix facilities, or if some of the district court's initial orders become irrelevant, rulings by us on the constitutional and other questions arising from the district court's November 13 decision could become unnecessary or, at a minimum, could concern a dispute of a different magnitude from the one we face today. We therefore also remand this order to the district court--a course we believe is particularly prudent here given that "strong considerations of comity . [**12] . . require giving the States the first opportunity to correct the errors made in the internal administration of their prisons." Lewis v. Casey, 518 U.S. 343, 362, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996) (internal quotation marks omitted). To the extent the parties cannot agree on the steps necessary to cure the alleged mental health care deficiencies, the district court has the authority to order those remedies it believes are appropriate--or leave in place all or some of its current orders--and the parties remain free to appeal any such order or decision.
2.
Recent events also impact the State's appeal of the district court's December 7 decision establishing the Office of Independent Medical Monitor. For one, the closure of JMF likely will diminish the Medical Monitor's role given that it will have far fewer Hadix prisoners to monitor after the closing of that facility--a closure, says the State, that will occur within 45 days of the effective date of the district court's order accepting its August transfer plan. For another, the removal of SMT Building B (and possibly Building A) from the reach of the consent decree will diminish the role (and expense) of the Medical Monitor as well. For yet another, the district [**13] court's recent decision approving the State's August transfer plan implicitly calls into question some of the responsibilities and powers that the court previously gave to the Medical Monitor. For instance, in its March 6 decision, the court gave the Medical Monitor authority to review complaints from prisoners who allege that they are not receiving appropriate medical care in the non-Hadix facility to which they have been transferred and, if necessary, to order the State to return those prisoners to the Hadix facility. Hadix, 2007 U.S. Dist. LEXIS 15605, 2007 WL 710136, at *10. Yet, in its most recent decision, the district court suggested that giving the Medical Monitor such power would exceed the scope of the consent decree. See Hadix, Opinion at 14 (indicating that, "[i]f. . . actual conditions in a [*683] new facility violate the Constitution, a proper plaintiff can . . . bring new litigation"). We find it difficult to reconcile those two decisions and believe it more prudent to give the district court an opportunity to address the point and to consider whether recent developments make it necessary for the court to alter the Medical Monitor's authority and mandate. We therefore remand this order to the district [**14] court as well.
3.
Recent events also affect the State's appeal of the district court's April 3 decision addressing heat-related issues in the Hadix facilities. One of the State's principal objections to the district court's April 3 decision is that, in light of the court's March 6 decision interrupting the closure of JMF, the State might have to install air conditioning in JMF even though it hopes and plans to close that facility in the very near future--that is, the State might have to pay significant capital expenditures that will have only a modest short-term benefit. Given the district court's recent approval of the State's transfer plan, however, and given the State's current assumption that it will be able to close JMF before next spring or summer--when the heat index may approach 90 again--the State's concern seems far less material. The State, as a result, may well be more inclined voluntarily to take steps at the remaining Hadix facilities, which the State plans to keep open for the foreseeable future, to satisfy the plaintiffs' heat-related concerns. If so, the need for us to rule on several of the difficult questions--including constitutional questions--raised in the State's [**15] appeal may disappear.
What is more, if the State is able to close JMF in the near future and if the district court declares that SMT Building A is no longer a "de facto Hadix" facility, the number of prisoners at risk for heat-related injury in the Hadix facilities (other than Duane Waters Hospital, which has air conditioning) will decrease significantly. See Hadix, 492 F. Supp. 2d at 746 (indicating that, as of September 2006, 523 JMF inmates and 634 Parnall (or SMT) inmates were "classified as having heat-related illnesses"). Most of the remaining prisoners in the Hadix facilities will be housed in RGC--a facility in which the average-prisoner stay, according to the State, is only 25 days and in which the number of prisoners with heat-related illnesses is quite low relative to JMF and SMT. See id. (indicating that, as of September 2006, 207 Egeler (or RGC) prisoners were classified as having heat-related illnesses); see also id. at 745 (explaining that one of the important factors in assessing an individual's risk of heat-related illness is "the length of exposure to extreme heat conditions"). Rather than speculate about how these potential changes in the Hadix facilities' prisoner [**16] population could affect the district court's previous orders concerning heat-related injury, we believe the more prudent course is to give the district court the opportunity to evaluate the issue in the first instance. Accordingly, we also remand this case.
C.
In closing, we wish to emphasize that, if the parties fail to resolve the remaining issues between themselves and if any party remains dissatisfied with any prior or future order of the district court, we stand ready to hear their concerns--including hearing their appeal on an expedited basis, if appropriate. In view of the budgetary concerns underlying the State's position in these cases and in view of the importance to the plaintiffs of resolving these issues sooner rather than later, we urge the parties and the district court to focus on, if not eliminate, the remaining areas of disagreement in the near term so that any renewed appeal or new appeal to this court [*684] may be heard by this panel no later than the spring of 2008.
III.
For these reasons, we remand all six cases to the district court.
Hadix v. Caruso
| Year | 2006 |
|---|---|
| Cite | 461 F.Supp.2d 574, (W.D. Mich. 2006) |
| Level | District Court |
| Injunction Status | Granted |
461 F. Supp. 2d 574, *; 2006 U.S. Dist. LEXIS 82399, **
EVERETT HADIX, et al., Plaintiffs, v. PATRICIA L. CARUSO, et al., Defendants.
Case No. 4:92-CV-110
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
461 F. Supp. 2d 574; 2006 U.S. Dist. LEXIS 82399
November 13, 2006, Decided
November 13, 2006, Filed
OPINION BY: Richard Alan Enslen
OPINION
[*576] Say a prayer for T.S. and the others who have passed. Any earthly help comes far too late for them.
I. BACKGROUND
1. Procedural History
This Court held an evidentiary hearing regarding Plaintiffs' Motion to Reopen Judgment Regarding Mental Health Care and Issue a Preliminary Injunction on October 11-13, 2006. Also considered during the hearing were two other motions by Plaintiffs, which will be determined later. The Court has now received supplemental proofs and post-hearing briefs from the parties as to the Motion to Reopen. Given the significance of the substantive issues, the Court now resolves the Motion without delay.
A short primer on the history of mental health care at the Hadix facilities maybe necessary to understand the present controversy. This suit was filed in the Eastern District of Michigan in 1980 to redress a variety of unconstitutional conditions, including inadequate mental health care, at certain designated Jackson, Michigan [**2] prison facilities operated by prison officials of the Michigan Department of Corrections pursuant to 42 U.S.C. § 1983. In 1985, a Consent Decree was entered by stipulation of the parties with the approval of United States District Judge John Feikens. Section II.B of the Consent Decree pertained to mental health care for prisoners within the Hadix facilities.
Judge Feikens initially transferred enforcement of medical care and mental health care provisions of the Consent Decree to this Court by Order of June 5, 1992 pursuant to 28 U.S.C. § 1404(a). Hadix v. Johnson, 792 F. Supp. 527, 528 (E.D. Mich. 1992). The purpose of the Order was to promote uniformity and effectiveness of remedy in light of this Court's enforcement of a Consent Decree involving the same issues in a separate suit--United States v. Michigan, Case No. 1:84-cv-63. Id. See also Hadix v. Johnson, 228 F.3d 662, 665 (6th Cir. 2002) (discussing history of suit).
Mental health care at the facilities was routinely monitored by the Court until 2001. On January 8, 2001, the Court granted Defendants' request to terminate enforcement of [**3] the mental health provisions of the Consent Decree effective upon ten days after the filing of an Updated CQI Monitoring and Data Validation document. (Order of Jan. 8, 2001.) The document was filed by Defendants on January 23, 2001. (Dkt. No. 1437.) Thus, the termination became effective in early February 2001. Plaintiffs moved on September 8, 2006 to reopen the terminated provisions [*577] and for a preliminary injunction pertaining to mental health care. The cause for the Motion was the tragic death of a Michigan prisoner, T.S., and other fatal cases in which inmates' deaths were attributable to delays or malfeasance in the provision of mental health care.
2. Death of T.S.
On August 6, 2006, Michigan prisoner T.S. died. The basic circumstances of his death were discovered by medical monitor Dr. Robert Cohen, M.D. between August 7, 2006 and August 10, 2006, and conveyed to the Court by letter of August 14, 2006. (Dkt. No. 2088.) T.S. was a twenty-one-year-old male with a history of mental illness. He was placed in the segregation unit at JMF (a Hadix facility) beginning on August 2, 2003; he spent five days in two segregation cells at JMF locked in four-point restraints to concrete [**4] slab beds without any effective medical or mental health care. He was unlocked shortly before he died.
T.S.'s death was investigated by both the Michigan Department of Corrections and by Plaintiffs. The following account is taken from trial exhibits, including custody logs, overhead in-cell videotape and portable videotape of the events between August 2, 2006 and August 6, 2006. The basic road map for the events is Plaintiffs' Exhibit 106A, which provides a time log. There are some slight discrepancies as to time of certain events between the log book and the video time recordings (of some ten minutes); the Court utilizes the time log in Exhibit 106A as the best record of the time sequence of the recorded events. (See also Pls.' Ex. 42, at bates nos. 320947-320971 (custody log); Pls.' Ex. 106B (video excerpts); Pls.' Ex. 106C (complete hand-held video); Pls.' Ex. 106D (complete overhead video).)
T.S. arrived at JMF in March 2006 and was housed as a level II general population prisoner. (Pls.' Ex. 106A at 1.) On July 31, 2006, he was transferred by custody staff from general population to administrative segregation due to disobedience of custodial orders. On August 2, 2006, at [**5] 1239 hours he was placed in soft standing restraints (locking leather and vinyl restraints around his hands, feet and waist). (Id.) He then flooded his sink and was placed on "top of the bed restraints" at 1327 hours. (Id. at 2.) "Top of the bed restraints" are according to policy "the securing of both arms and legs to a bed . . . ." (Pls.' Ex. 42, MDOC Operating Procedure, bates no. 320597, emphasis in original.) Prisoners so secured are to be observed every 15 minutes and to be offered bathroom and water drinking breaks every two hours. (Id. at bates no. 320598.)
In practice, "top of the beds restraints" is a euphemism for chaining an inmate's hands and feet to a concrete slab. T.S.'s "bed" was composed of a concrete slab with four metal, arc-shaped handles emanating from the slab for the purpose of receiving the locking restraints. (See Pls.' Ex. 106-B.) Two of the handles, positioned in the longitudinal middle of the bed, were across from each other at the outside edges of the bed to receive the hand and waist restraints. (Id.) The remaining two handles were positioned across from one another at the outer edges of the foot of the bed to receive the [**6] feet restraints. (Id.) A small mattress pad was provided, but was not used for much of the restraint because T.S. removed it and/or because he urinated on the bed. (Pls.' Ex. 106A at 3-4.) For many hours of the restraint, T.S. was naked and laid in his own urine. (Id. at 4-9.) On one occasion, T.S. refused to cooperate with his restraint; this prompted five correctional officers to use a large plexiglass shield and place their weight upon T.S. while they locked him, screaming, [*578] to the slab with chains. (Pls.' Ex. 106B.) On August 5, 2006, T.S. was removed from his cell for one hour for treatment of a urine burn on his back at Duane Waters Hospital. (Pls.' Ex. 106A at 6.) Apparently, such treatment never occurred because T.S. urinated on an examination table at the hospital. (Op. & Decl. of Jerry Walden, M.D. P 26; trial transcript ("T.T."), vol. 1, 131 (testimony adopting declaration).)
Much of the defiant and self-destructive behavior of T.S. is explained as a product of untreated mental illness. T.S. had a documented history of bipolar disorder, depression, hyperactivity disorder and suicide attempts. (Walden Decl. P 3.) T.S. was seen on August 2, 2006 by an outpatient social [**7] worker, Francis Duffy. 1 (Pls.' Ex. 103, F. Duffy Dep. 53-54.) Duffy determined that T.S. was "floridly psychotic. Exhibiting symptoms consistent with his description of manic episodes prior to incarceration." (Duffy Dep. Ex. 10.) Duffy thus referred T.S. to the "CSP"--id.--meaning the Crisis Stabilization Program that hospitalizes and treats mentally ill prisoners at the Huron Valley Men's Facility (a prison psychiatric hospital). (See Duffy Dep. 41 & 47.) Duffy had no expectation that T.S. would be transferred immediately, though, since he planned to examine T.S. the following day. (See Duffy Dep. Ex. 10.) The prior suicide attempts noted by Duffy referred to a series of suicide attempts in the Kalamazoo County Jail (T.S. stabbing himself in the stomach and attempting hanging); the hanging was attempted while T.S. was housed in the Kalamazoo Regional Psychiatric Hospital and nearly resulted in his death. (Walden Decl. P 19.)
FOOTNOTES
1 Duffy was an employee of the Michigan Department of Community Health assigned to work within JMF. (See Duffy Dep. 42.)
[**8] Duffy completed a referral form for T.S. on the morning of August 3, 2006 before examining T.S. again later in the day. (Duffy Dep. 71.) The referral form was marked "Emergent" and noted that "Prisoner decompensated . . . in detention cell . . . Prisoner remained agitated . . . Associations loose, disintegrated. Unable to determine if prisoner is responding to internal stimuli. . . ." (Duffy Dep. Ex. 9 at 1.) Duffy also noted that T.S.'s psychiatric medications could not be changed due to the absence of an on-site psychiatrist. (Id. at 2.)
The same day Duffy received an email that the referral had been received. (Duffy Dep. 71.) He later received an email that day that the referral had been approved. (Id. at 72.) T.S. was not transferred that day, though. Defendants blame the failure to transfer upon a "transfer coordinator" (secretary) at Huron Valley who failed to transmit the transfer order to JMF, together with the scheduled leave of the transferring psychiatrist on Friday, August 4, 2006 and Mr. Duffy's past reliance on email correspondence to affect transfer orders. (See Defs.' Resp., Dkt. No. 2177, at 5.)
The immediate consequence of the failure to transfer was [**9] that a psychotic man with apparent delusions and screaming incoherently was left in chains on a concrete bed over an extended period of time with no effective access to medical or psychiatric care and with custody staff telling him that he would be kept in four-point restraints until he was cooperative. (See Pls.' Ex. 106B.) At the time of these incidents, there was no on-site psychiatric coverage for JFM because the staff psychiatrist [*579] was on "an extended leave." (Walden Decl. PP 40-41.)
T.S. was prescribed several medications, including psychothropic medications, while at JMF. (Id. at P 45.) These included Lithium (which is known to cause kidney failure if adequate hydration is not maintained and Lithium levels are not regularly and closely monitored, particularly when doses are changed); Seroquel (an antipsychotic medication, which exposes patients to risks of dehydration, tachycardia and impairment of temperature auto-regulation); Hydrochlorothiazide (which must be monitored to prevent electrolyte imbalance and which could also contribute to Lithium toxicity); Levothyroine (which manages hypothyroidism); Gemfibrizol (which manages hyperlipidemia, but may cause depression [**10] in some patients); and Atenelol (which can interfere with temperature regulation). (See id.; Pls.' Ex. 114.) T.S. also had multiple cardiac risk factors, including hypertension, obesity and hyperlipidemia. (Walden Decl. P 2.) 2
FOOTNOTES
2 In particular, Lithium is known to subject patients to risk of toxicity, electrolyte imbalance, delusion, tachycardia and death. (T.T., vol. 1, 133-35.) Lithium also increases urination even while a patient is dehydrating. (Id.) T.S.'s Lithium levels were not monitored for a prolonged period preceding his restraint and death. (Id.) This was not clinically appropriate. (Id.)
During T.S.'s restraint, the conditions at the institution were hot and humid. Two of the days were designated "heat alert" days with heat index readings around 100 degrees. (Id. P 35; see also Pls.' Ex. 106B (depicting perspiring officers complaining about heat); Pls.' Ex. 243 (Accuweather Temperature Chart). 3 ) In Dr. Walden's opinion, dehyrdration severely affected T.S.'s health on August [**11] 2-3, 2006. (Id.) Throughout the restraint, T.S. was offered water by officers and often refused. (See Pls.' Ex. 106A; Walden Decl. P 27.)
FOOTNOTES
3 Defendants' interior cell measurements of temperature were lower, but not so low that heat, humidity, and hydration were not a significant concern for T.S. in the context of this restraint.
On August 6, 2006 at 0610 hours, T.S. was moved to another cell, but "top of the bed restraints" were continued. (Pls.' Ex. 106A at 8.) Four hours later, T.S. was taken to a shower. (Id.) At the time, he was clearly weakened and needed assistance in rising and walking. (Pls.' Ex. 106B.) After the shower, he was taken back to his cell via wheelchair and placed again in "top of the bed restraints." (Id.) He was removed from the restraints at 1358 hours after prolonged "sleeping." The prolonged "sleeping" was also the reason given by staff psychologist Allan Small for not examining T.S. on August 6, 2006 on repeated occasions. (Walden Decl. P 29.)
At 1359 hours, T.S. [**12] fell face first onto the concrete floor. (Pls.' Ex. 106A at 8; Pls.' Ex. 106B.) Custody staff then assisted T.S. to sit back onto the slab. (Id.) Some minutes later T.S. fell off the toilet and laid on the floor until assisted by custody staff at 1457 hours. (Id. at 9.) At that time, nurse Charles Boltjes attempted to take a pulse and/or blood pressure from T.S. in both arms. (Id. & Pls.' Ex. 106B.) Then T.S., in apparent concern for his declining health, asked Boltjes about the readings and he responded, "It's faint, but I heard it." (Pls.' Ex. 106B.) No blood pressure, pulse, temperature or other vital readings were ever recorded by Boltjes in connection with that visit. (Walden Decl. P 30.) No emergency care was summoned even though Boltjes (as reflected in his comment) had observed low cardiac output, which failure to summon emergency [*580] care was not clinically appropriate. 4 (See T.T., vol. I, 134.) One hour later Boltjes returned to pass medication and found T.S. not breathing. (Pls.' Ex. 106A at 9.) C.P.R. was attempted, but was unsuccessful. T.S. was then taken by ambulance to Foote Hospital and pronounced dead at 1655 hours. (Pls.' Ex. 42 at bates no. 320853.) [**13]
FOOTNOTES
4 Plaintiffs refer to Boltjes' conduct as arguably constituting criminal negligence. (Pls.' Trial Br. 3.) The Court agrees with that characterization. While it is true that the medical examiner has not announced an official cause of death, the delay in doing so suggests both that in depth toxicology work is being performed and full consideration given to ascribing a manner of death suggesting criminal liability.
The official incident report of the death contains one particular gross misstatement of fact. The report stated in part that "[the prisoner] was taken off TOBR restraints at 1400 hours and showed no visible health complications." (Pls.' Ex. 42 at bates no. 320842.) This conclusion is directly contradicted by the videotape displaying T.S.'s declining physical state, which was obvious. Dr. Walden concluded that the most likely cause of death for T.S. was dehydration and arrhythmia. (Walden Decl. P 43.) Walden also opines that the death was entirely preventable had timely medical and psychiatric care [**14] occurred. (Id.)
Another striking feature of the care received by T.S. was that neither custody staff (who checked on T.S. on regular intervals), nor psychological and nursing staff (who all saw T.S. in a state of decline) took any action to summon emergency care when the need to do so was obvious. As Dr. Pramstaller, the Michigan Department of Corrections Medical Director, put it, "I think there were opportunities for all the disciplines to have taken a more active role in advocating for the welfare of Mr. T.S. and unfortunately that did not happen." (T.T., vol. II, 244.) Dr. Pramstaller testified later, "I think in looking at the tapes in particular it was very apparent in the tapes that T.S. was having, number one, mental deterioration, and number two, physical deterioration. I thought that there was ample opportunity for custody officers, for mental health professionals and for nursing to have intervened and brought in a psychiatrist, brought in a medical doctor, or just done something to intervene. And that was not done." (T.T., vol. II, 272.)
Similarly, Dr. Robert Cohen, M.D., the medical monitor in this suit and a person with extensive experience not only in medicine but [**15] in the supervision of psychiatric care, testified T.S.'s medical treatment records reflected that T.S. had experienced a progressive deterioration of his mental status in the five months preceding his death. (T.T., vol. III, 577.) Dr. Cohen noted that T.S.'s medications had been modified once he arrived at JMF, but that following the modifications of his medications on May 16, the next follow-up was scheduled to take place three months later. (Id.) According to Dr. Cohen, this was too long an interval given the substantial medication changes ordered by the psychiatrist. (Id.) This treatment was, in his opinion, clinically inappropriate. (Id.) He also opined that restraint beds and other forms of punitive restraints have predictable fatal consequences which have caused them not to be used in some correctional systems. (Id.) He further opined that T.S.'s medical condition needed careful medical monitoring during a heat wave-which did not occur. (Id.)
3. Department Restraint Policies
On the subject of restraint policies, T.S.'s death was reported widely in media [*581] and has caused Defendants to change some of its practices regarding the use of "top of the bed restraints. [**16] " Defendants continue to assert that "top of the bed restraints" are useful in two instances: (1) to discourage prisoners who are not overtly mentally ill, but engaged in self-destructive behaviors such as cutting themselves or inserting foreign objects into bodily cavities; and (2) to discourage disruptive prisoners who present a threat to others and/or a threat of property damage. (Defs.' Resp., Dkt. No. 2177, at 22.) No testimony was presented as to the frequency of these instances or the advantage of this approach over other correctional policies.
Nevertheless, Director Patricia Caruso has issued a Director's Office Memorandum, DOM 2006-13, dated October 23, 2006 and effective November 1, 2006. (Id. Ex. G.) Said Memorandum limits the use of "top of the bed restraints" to a six-hour period at prisons within the Jackson Complex (which includes the Hadix facilities). (Id. at 1-2.) At the end of such period, the prisoner, if still disruptive, is to be taken to a medical or psychiatric unit for medical or psychiatric treatment (if appropriate) or, if no treatment is necessary, is to be taken to a "hardened cell" where restraints other than "top of the bed restraints" may [**17] be used to address behavioral issues, if necessary. (Id.) The policy, on its face, does not limit the number of times "top of the bed restraints" may be used in a calendar year or other period as to a single prisoner, nor does it specify a waiting period between the time of a prisoner's release from "top of the bed restraints" before a new round of "top of the bed restraints" may be reauthorized. (Id.) The policy does require a health evaluation of prisoners, by medical staff, before a prisoner is placed on "top of the bed restraints." (Id.)
This change in policy has been judged insufficient by both Dr. Cohen, the medical monitor, and Dr. Robert Griefinger, Defendants' expert witness. Dr. Cohen testified that, for the purposes of the ethical standards of the American Medical Association, "torture refers to the deliberate, systematic or wanton administration of cruel, inhumane, and degrading treatments or punishments during imprisonment or detainment." (T.T., vol. III, 575.) This is significant because physicians are required by their ethical standards to "oppose and must not participate in torture for any reason. Participation in torture includes, but is not limited to, [**18] providing or withholding any services, substances, or knowledge to facilitate the practice of torture." (Id.) Dr. Cohen classified the use of "top of the bed restraints" or other forms of restraints for punitive reasons as "torture" within that definition. (Id. at 578-79.) Dr. Cohen favored the total discontinuation of the practice because any use of the practice is likely to contribute to future prisoner deaths. (Id.) Dr. Griefinger, similarly, testified that it was unethical for a physician to provide medical clearance for any form of punitive restraints. (Id. at 500.)
4. The Case of P.H.
Dr. Cohen began the hearing with testimony concerning another prisoner death associated with inadequate psychiatric and medical care. P.H. died on August 17, 2006 at Duane Waters Hospital of congestive heart failure and suffered from end-stage heart and liver disease. (T.T., vol. I, 15.) His death was a foreseeable complication of untreated hyperthyroidism, a serious medical condition which caused P.H.'s deadly complications. (Id.) P.H. refused to take his medication for hyperthyroidism because he suffered multiple delusions that he was being poisoned and if his condition [**19] improved he would be sent to another institution to be injured or killed. (Id.)
[*582] P.H. was examined by Allan Small (the psychologist who was also assigned to care for T.S.'s week-end care) on January 19, 2005. (Id. at 15-16.) Small noted that P.H. expressed concerns about JMF staff colluding with staff from another facility to "silence him," but did not schedule P.H. for any follow up visit or other treatment. (Id.) One month later Small saw P.H. again about complaints that mail room staff were secretly collaborating against P.H. (Id. at 17.) At this time, Small believed that P.H. may have been suffering paranoid delusions, but did not schedule follow up care because P.H. refused care. (Id.)
Come May 2005, P.H. was seen by the JMF lead psychologist (David Arend) with more complaints about secret mail room plots. Arend assessed P.H. as illogical, but not mentally ill. (Id.) That same day, P.H. was admitted to Duane Waters Hospital with multiple life threatening conditions; he had thyrotoxicosis (a high level of thyroid hormone in the blood) which in turn caused atrial fibrillation, ischemic heart disease, and congestive heart failure. (Id. at 18-19.) P.H. [**20] was on several medications for his heart, blood pressure and thyroid, but refused treatment of the root cause, hyperthyroidism, because of paranoia. (Id.) He had a significant weight loss of 40 pounds (132 pounds after weight loss). (Id.)
This hospital visit led to a psychiatric visit with Dr. Wilanowski. She noted paranoid delusions on P.H.'s behalf which caused him to refuse treatment, and also fantastical thinking that he would receive a large settlement against the MDOC. (Id. at 19-20.) Dr. Wilanowski was hopeful that antipsychotic medication, Xyprexia, might relieve his symptoms so that he could be persuaded to treat his hyperthyroidism. (Id.)
Over the next year, P.H.'s medical condition deteriorated drastically without any improvement in his paranoid thinking. (Id. at 20-21.) P.H. saw an endocrinologist in May and August 2005, but the endocrinologist (who asked to see P.H. for further treatment) was not accommodated by Dr. Ivens of Correctional Medical Services ("CMS"), the company that arranges and pays for specialist services, because Dr. Ivens wanted the case managed without the specialist referral. (Id.)
For the next ten months, P.H. had multiple [**21] hospitalizations and consistently refused treatment for the hyperthyroidism. (Id. at 22.) By June 2006, his death seemed imminent and Dr. Mathai demanded from mental health staff that they determine whether P.H. was competent to continue to refuse medical care. (Id.) In response, Dr. Wilanowski prepared a standard form indicating that P.H. was not competent to refuse medical care on June 15, 2006. (Id.) That form was sent to Lansing for approval and sat idle, notwithstanding that the form dealt with a life-threatening emergency. On July 17, 2006, Defendants finally relented and sent the form onto the Attorney General's Office, who then petitioned the probate court for an order authorizing medical treatment. A hearing was not set until August 2006, by which time P.H. was in St. Joseph's Hospital in Ann Arbor. He was transferred back to DWH on August 15, 2006 and died there two days later without treatment. (Id. at 24-25.)
Dr. Cohen concluded from this medical chart that neither medical staff nor psychological staff effectively managed the case, and their delay was exacerbated by the failure to treat an emergency request for treatment as such. (Id.) According to [**22] Dr. Cohen, the toxic goiter that resulted in heart and liver failure which killed P.H. could have been cured in days had treatment [*583] been timely ordered. (Id.) Dr. Cohen found the psychological and psychiatric's staff indifference to P.H.'s condition particularly troubling. (Id. at 26.)
5. Other Cases of Treatment Failure
Plaintiffs' expert Dr. Walden also prepared an expert report on July 10, 2006. Although mental health care was not an explicit or implicit objective of that report, nevertheless it is significant that Dr. Walden discovered many instances of medical treatment failure which were causally related to inadequate psychological and psychiatric services at the Hadix facilities. Many of these cases pertain to inmates with treatable illness, who declined treatment, and were not offered psychological counseling though the conditions warranted it. Patient 15 received medical advice that he was in need of a second dialysis graft (for treatment of kidney failure). He refused. There is no record of counseling to encourage care (which is the standard of care for dialysis patients who tend to suffer from depression and die if care is neglected). (Pls.' Ex. 1B at [**23] 9; see also Second Report of Dr. Robert Cohen, M.D., at 7.) Defendants have provided a record that patient 15 was seen by Psychological Services Unit ("PSU") L.L.P. Kevin Tolsma on August 17, 2006. The disposition was "TNR"--treatment not required. Patient 15 was not seen by a psychiatrist or given counseling according to the notation. (Russell Proffer, Ex. F.) 5
FOOTNOTES
5 The Court understands that Russell's Proffer was tracking a slightly later time period then that of Dr. Walden's Report. However, the document is still very informative in that it shows whether or not the prisoners were referred for new service in the later time frame.
Also not counseled was patient 41, who was diagnosed with lung cancer and refused heart catheterization which was the prerequisite for his cancer treatment. At the time, the tumor had not spread and was likely treatable. (Pls.' Ex. 1B at 16.) There is no record of services for patient 41 between July 7, 2006 and September 2, 2006. (Russell Proffer, Ex. F.)
Other cases of failure [**24] to provide or document mental health counseling regarding medical issues include: patient 102, who needed surgery for a resistant staph infection and refused such, Pls.' Ex. 1B at 26, 44; patient 87, who suffered from heart failure and did not take his heart medication, and also did not follow up his physician's recommendation for a prostate biopsy, id. at 39; patient 1, a diabetic with juvenile onset diabetes, a history of many insulin reactions and poor blood sugar management who died of renal failure without counseling, id. at 6, 48; patient 86 refused surgery for a brain tumor after meeting with Dr. Faghihnia, a physician with a history of poor client communication, id. at 79-80; Third Report of the Associate Monitor 27-29; and patient 83, a patient with concerns about neurosurgery for arteriovenous malformation, id. at 78-79; T.T., vol. 1, 123. None of these cases were referred for service between July 7, 2006 and September 2, 2006. (Russell Proffer, Ex. F.)
Also remarkable in Dr. Walden's Report is the history of recent suicides and related deaths occurring in the absence of effective mental health care. Patient 156 killed himself after coming off of suicide [**25] watch and expressing the frustration that his medications no longer worked and he needed to "silence the voices." (Pls.' Ex. 1B at 53.) An effective drug for patient 156, Geodon, was not available to the prescribing psychiatrist because it had been apparently left off the CMS formulary as a cost-cutting measure. (Id.; T.T., vol. I, 125.) Patient 133 killed himself by overdosing on medication after learning that his children and former wife had died in an [*584] automobile accident. Dr. Walden suspects that the "system" knew of the accident and failed to provide timely counseling. (Id. at 40.)
Patient 165 died of cancer. He was found lying in his feces, after having lost 60 pounds on a "hunger strike." (T.T., vol. I, 124-25.) He was treated as a malingerer without psychological examination, but was discovered to have suffered from a fatal brain tumor which caused delirium. (Id.) Patient 165 needed coordinated medical and mental health care. The same was true of patient 229. Patient 229 spent two weeks in four-point restraints. (Pls.' Ex. 1B at 73-74.) Like T.S., he was on multiple psychotropic medications. (Id.) As Dr. Walden concluded less than one month before T.S. died, [**26]
Here is another patient who would profit from medical teaming with psychiatry. He should not be in a general ward and should be in DWH or a unit where he can be monitored daily by both psych and medicine. In hospitals today, restraint orders have to be written daily and justified each day. Such a need is absolutely critical.
(Id.)
6. Inadequate Psychological/Psychiatry Staffing
Another factor in the recent spate of delinquent care is the absence of available staff to provide necessary services. JMF currently houses 1,452 prisoners, including a segregation unit. (R. Russell Proffer, Ex. D, Arend Memo at 1.) All but 219 of those prisoners are assigned to the JMF PSU; the others are assigned to the Department of Mental Health Outpatient Mental Health Team ("OPMHT"). (Id.)
After Dr. Weller took medical leave, JMF was left without an onsite psychologist for a seven week period. 6 (Rushbrook Mem., Pls.' Ex. 5H, at 1.) When some coverage was restored to JMF on August 8, 2006, this was accomplished by sharing the psychiatrist assigned to the RGC (Reception and Guidance Center) facility. (Id. at 1-2.) The RGC services themselves are crucial because they [**27] provide beginning services to prisoners entering the Michigan prison system.
FOOTNOTES
6 The Rushbrook Memorandum also asserts that the "prisoner . . . was not in administrative segregation; he was in an observation cell located in the segregation unit . . . ." (Rushbrook Mem. at 1.) Whatever metaphysical distinction was intended by that remark is unimportant; T.S. was treated by staff as a malefactor and was told that his restraints would continue until he was cooperative.
Defendants have filed the Proffer of Richard Russell to demonstrate the provision of services to JMF inmates while Dr. Weller was on leave. The Proffer does say psychiatric services were available during Dr. Weller's leave. (Russell Proffer P 7.) However, once the Affidavit and attachments are examined and understood, they demonstrate quite the contrary. Exhibit F shows 21 evaluations between July 7, 2006 and September 9, 2006; each of these being conducted by the three PSU limited license psychologists--Small, Arend and Tolsma. (Russell Proffer, Ex. [**28] F.) Of those 21 evaluations, only five were referred for services after the initial evaluation. (Id.) The complaints ranged between anxiety, paranoia, self-injury and suicide. (Id.) Only one case, a suicide case on July 28, was referred to the Crisis Stabilization Program, meaning that the inmate would be transferred to the Huron Valley facility for hospitalization and further care. (Id.) Two cases, dated August 25 and August 28, were marked as "PSU" meaning they would receive further services from the PSU limited license staff. [*585] (Id.) Two other cases, dated August 15 and August 23, were marked as "OPT," meaning they would receive services from the Community Mental Health limited license staff. (Id.) Cases which did not receive service included: July 7, patient on hunger strike; July 24, patient comment "suicidal"; July 31, patient comment "self-injury threats"; August 9, patient comment "self-injury"; and August 14, patient comment "paranoia." (Id.)
The general impression the document gives is that PSU staff were fulfilling rote paperwork requirements in seeing patients, but would not provide actual services except in rare cases. This is exceptional given that [**29] the Court knows from extensive past experience of proofs, regarding the mental health care at the Hadix facilities, that a very significant percentage of prisoners at this facility (which is largely housed with ill inmates due to its proximity to Duane Waters Hospital) experience significant mental illness on a regular basis and would benefit from regular treatment.
Perhaps one reason for the reluctance to provide services at JMF is that the PSU staff are professionally ill-equipped for the tasks designated them. For example, Allan Small is a limited license psychologist. (Pls.' Ex. 105, A. Small Dep. 6-7.) This means that he must be supervised by a fully licensed psychologist. (Id.) The fully licensed psychologist that supervises Small and all other PSU staff is the regional director. (Id.) Small is more directly supervised by another psychologist--Marie Alcala-Cardew, who works at the Parnall facility and supervises other PSU staff. (Id.) Alcala-Cardew is also a limited license psychologist. (Id. at 14.) According to Small, his contacts with the regional director are limited to email correspondence (mostly about reporting) and he had only one face-to-face meeting [**30] with the regional director in the last year. (Id.)
The OPMHT staff has similar "qualifications." For instance, Francis Duffy is a limited license psychologist and is the most senior member/unit chief of his service team. (Pls.' Ex. 103, Duffy Dep. 7, 13.) The supervision of PSU and OPMHT staff contradicts the legal requirements of the Michigan statute. Michigan Compiled Laws section 333.18111(2) requires that a limited license holder practice under the supervision of a license holder. As the record shows, limited license holders were not supervised with the exception of the formality of a reporting relationship to a distant boss who saw them once a year.
Furthermore, the absence of qualified staff to perform advanced tasks had real documented consequences as noted above. P.H.'s case was not treated emergently and it became so due to prolonged avoidance of the case by ill-equipped staff. Similarly, T.S., and others, did not receive regular psychiatric care, blood testing for psychiatric drugs, and modification of their medications, which grossly affected those patients' outcomes. The failure to transfer T.S. in a timely way, though argued as an "isolated" problem, was not necessarily [**31] so. (See R. Russell, T.T., vol. II, 318.) Soon after Richard Russell discovered the non-transfer of T.S., he tracked other cases in August 2006 and found that the new cases were benefitted by the new tracking policy which worked to ensure that the transfer occurred timely. (Id.) Russell could not say how regular transfers were before the change in policy. (Id.)
7. Systemic Nature of Constitutional Violations
Plaintiffs' Expert, Mark Creekmore, Ph.D., also testified persuasively at the hearing regarding "root cause analysis" and other factors pertinent to whether observed [*586] constitutional violations are indicative of the level of care at Hadix facilities. His testimony was that certain sentinel events, especially including deaths, are important in analyzing the quality of services provided by an organization because they suggest what are typical responses of the system to a given set of events. (T.T., vol. III, 537.) This kind of analysis becomes particularly important when statistical records are shown to be flawed. Dr. Creekmore concluded that the statistics kept by the Department were not sufficient to permit a systemic analysis of the service system and for [**32] continuous quality improvement. (Id. at 536.) Dr. Creekmore also discussed the use of policy, flow charts and other communication strategies to avoid service "silos"-cases in which service was provided by service providers who were unaware of important facts because those facts were communicated to others but not to them. (Id. at 543-44.) These comments were specifically directed at the current division of labor between physicians, nurses, psychiatrists, psychologists and other health care staff. (Id.)
Another subject noted by Dr. Creekmore was the prevalence of missed appointments. (Id. at 554.) This suggested to Dr. Creekmore that staff's time was not being effectively managed, and that patient outcomes were being adversely affected by delays in treatment caused by a failure to manage care effectively. (Id.) Such a system unnecessarily expends resources treating a significant illness which could have been avoided by prompt treatment. (Id.) Although some of these observations were directed to medical care, the general concepts are applicable to the evidence of mental health care treatment on this record. The failures of staff to effectively treat T.S. and [**33] other mentally-ill patients signify a systemic failure of the mental health system to provide effective treatment.
II. LEGAL STANDARDS FOR PRELIMINARY INJUNCTION
The present Motion asks for relief under both Federal Rule of Civil Procedure 65(a), Rule 60(b)(6), and 18 U.S.C. § 3626(a). The Court begins by examining the general requirements for a preliminary injunction under Rule 65.
The Court must consider four factors: (1) whether there is a strong likelihood of success on the merits; (2) whether there is proof of irreparable harm to the moving party without the injunction; (3) whether substantial harm to others will be caused by the injunction; and (4) whether the public's interest is favored by the issuance of the injunction. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003); Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000); Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992). This evaluation focuses on all four factors--rather than any particular factor. In re De Lorean Motor Co., 755 F.2d 1223, 1228-30 (6th Cir. 1985). [**34]
III. PRISON LITIGATION REFORM ACT ("PLRA") STANDARDS
Under 18 U.S.C. § 3626(a)(2), a preliminary injunction may not issue unless it is:
. . . narrowly drawn, extend[s] no further than necessary to correct the harm . . ., and [is] the least intrusive means to correct that harm. The Court shall give substantial weight to any adverse impact public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity . . . .
18 U.S.C. § 3626(a)(2). Although much was made of the enactment of the PLRA at the time, its actual standards are consistent with traditional norms of non-interference [*587] with state regulation of prisons. However, such norms and standards must, as the statute recognizes, give way to constitutional standards to prevent ongoing violations, including those under the Eighth Amendment.
IV. RULE 60(b) STANDARDS
Federal Rule of Civil Procedure 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative [**35] from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. . . .
Fed. R. Civ. P. 60(b).
V. LEGAL ANALYSIS
1. Evidentiary Objections
Defendants seek to exclude some of the opinion testimony [**36] of Drs. Walden and Cohen pertaining to the adequacy of mental health treatment of Hadix prisoners. Defendants base this argument upon the holding in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the District Court's gatekeeping role under Federal Rule of Evidence 702, and the fact that neither physician is a licensed psychiatrist.
Although this argument might have some validity as to a physician with little or no practice in areas concerned with mental health (e.g., an orthopaedic surgeon), it does not track well given the experience and training of Doctors Walden and Cohen. Both physicians have prolonged histories as primary care physicians (Walden, a family doctor, and Cohen, an internist). In that capacity, both doctors regularly see patients experiencing some degree of mental illness and are required to make professional judgments as to whether to treat such illness, treat the illness in consultation with a specialist, or refer for specialist care. Furthermore, Doctors Walden and Cohen have both worked as correctional medical officers and in that role have supervised psychological care teams. Put simply, their [**37] training as physicians and their work experiences make them more than qualified to offer the opinions offered during the recent hearing. (See T.T., vol. I, 7-14 (Cohen); T.T., vol. I, 113-21 (Walden).)
Furthermore, even to the extent that the opinions relate to the need of various patients to have psychological and psychiatric care, the opinions are still admissible. The closest similar case is Walker v. Soo Line R. Co., 208 F.3d 581, 588 (7th Cir. 2000). In that case, the Seventh Circuit upheld the use of the testimony of a physician about psychiatric matters because the physician was the head of a team which included psychologists and the physician could give proper testimony based on her work experience and discussions with other [*588] team members. Id. The experiences of Drs. Walden and Cohen similarly qualify them to offer their opinions. Also supporting this result are the decisions in Jahn v. Equine Servs., PSC, 233 F.3d 382, 389 (6th Cir. 2000); and Dickerson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 982 (6th Cir. 2004). The cases cited by Defendants, including Smelser v. Norfolk So. Rwy. Co., 105 F.3d 299 (6th Cir. 1997), [**38] deal with disparate factual scenarios and do not support exclusion of expert testimony in this instance.
2 Relief under Rule 60(b)(6)
Defendants maintain that three cases demonstrate that Rule 60(b)(6) relief cannot be granted after termination of a portion of a consent decree--Vazquez v. Carver, 18 F. Supp. 2d 503, 513 (E.D. Pa. 1998), aff'd, 181 F.3d 85 (3d Cir. 1999); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1987); and Hawaii County Green Party v. Clinton, 124 F. Supp. 2d 1173 (D. Haw. 2000). With all due respect, only one of those cases, the Hawaii Green Party case, stands for the propositions cited. The Court does not view that case as persuasive authority which should be relied upon in this instance because of the differing factual circumstances present herein and because of the controlling law of the United States Supreme Court and the Sixth Circuit Court of Appeals.
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994) is the case usually cited in the context of Rule 60(b)(6) relief from a prior judgment. In Kokkonen, the Supreme Court held that a stipulation [**39] for dismissal of an entire action which did not retain jurisdiction for enforcement of a settlement agreement could not later justify Rule 60(b)(6) relief to obtain enforcement of the settlement agreement. Kokkonen, 511 U.S. at 378-79. It did so in part because it viewed the doctrine of ancillary jurisdiction, as pertaining to a dismissed diversity suit, as an insufficient basis for federal jurisdiction given that the ancillary claim (breach of settlement) was unrelated to the dismissed claim (breach of agency). Id. at 380-81. The Court also distinguished cases in which the district court had retained jurisdiction by a term of the judgment for the purposes of settlement enforcement, or "incorporated the terms of the settlement agreement in the order." Id. at 381.
It is apparent upon even causal inspection of the Kokkonen ruling that the hard stop it intended for settlement enforcement of dismissed cases does not apply in this instance. First of all, this is not an instance in which all jurisdiction was previously abandoned by a complete dismissal of the case. Rather, the Court has continued Consent Decree enforcement of medical [**40] health and fire safety provisions to prevent further constitutional violations under 42 U.S.C. § 1983. Second, the Consent Decree, which was a settlement agreement, was expressly part of the judgment (though not part of the partial termination order).
The decision in Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 662 (1st Cir. 1987) in fact recognized that renewed unconstitutional conditions as to a terminated decree would warrant a "new round of proceedings." The question of whether that "new round of proceedings" should be initiated under Rule 60(b)(6) or by separate action is a discretionary issue which presents itself both to the moving counsel and to the district court saddled with such a motion. The answer to that question, of course, depends upon the context. When a suit is finally terminated and Rule 60(b)(6) relief would be inconsistent [*589] with the usual rules of process and fair adjudication, then courts should routinely turn such requests aside. However, in the present case, wherein enforcement is on-going and the terminated Consent Decree provisions have a decided impact on the future termination of live Consent Decree [**41] provisions, Rule 60(b)(6) relief is not only possible, but it is necessary for the District Court to fulfill its constitutional and statutory role. In particular, many of the repeated and recurrent problem cases noted by Drs. Cohen and Walden concern the cracks between medical care and mental health care. Without a system that effectively addresses both areas, Eighth Amendment constitutional health care violations will continue as a by-product of unconstitutional mental health care.
Furthermore, in the present case, Consent Decree enforcement has been transferred from the Eastern District to prevent inconsistent adjudications as to the Jackson facilities. Any attempt to fracture the lawsuit by forcing separate actions on related topics would do a grave disservice to both prisoners and administrators by forcing them to function under multiple enforcement regimes. In a word, the equities of this suit demand Rule 60(b)(6) relief. The scope of such relief will be determined in addressing Plaintiffs' requests for preliminary injunctive relief. 7
FOOTNOTES
7 One of those requests, the request for a limitation on punitive restraints, does not absolutely depend upon the re-opening of the mental health provisions. This is because, given the nature of the relief, it may be properly ordered as part of this Court's jurisdiction over the medical care provisions.
[**42] 3. Preliminary Injunctive Relief
Plaintiffs have made four requests as part of their Motion: (a) the elimination of punitive mechanical restraints, including, but not limited to "top of the bed restraints;" (b) the requirement that Defendants maintain psychological and psychiatric staff levels sufficient to reliably deliver necessary psychological and psychiatric services; (c) the requirement that Defendants institute daily rounds by a psychiatrist in the segregation unit; and (d) the requirement that Defendants develop protocols for appropriate coordination of medical and mental health care, and meetings between psychological, psychiatric and medical care providers to coordinate care for prisoners.
a. Use of Punitive Restraints at Hadix facilities
This topic is interesting because it raises not only the typical Eighth Amendment issues regarding provision of medical and mental health care to prisoners, but also the concept of when punitive treatment in prison crosses the bloody line of torture so as to be prohibited by the Eighth Amendment as an illegal act of punishment. A brief review on the history of torture in the United States is, therefore, helpful. The review [**43] will be presented after another summary of the relevant Eighth Amendment mental health/medical care standards.
"Deliberate indifference to serious medical needs" violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The Eighth Amendment standard has both objective and subjective components. Id. Thus, to be liable, a defendant must know of and disregard an excessive risk to prisoner health or safety. Farmer, 511 U.S. at 837. However, in an injunctive case, proof of the subjective component is straightforward:
[*590] In this case, we are concerned with future conduct to correct prison conditions. If these conditions are found to be objectively unconstitutional, then that finding would also satisfy the subjective prong because the same information that would lead to the court's conclusion was available to the prison officials.
Hadix v. Johnson, 367 F.3d 513, 526 (6th Cir. 2004). Likewise, deliberate indifference to serious psychological needs violates the Eighth Amendment. Clark-Murphy v. Foreback, 439 F.3d 280, 292 (6th Cir. 2006); [**44] 8 Greason v. Kemp, 891 F.2d 829, 834 (11th Cir. 1990).
FOOTNOTES
8 Clark-Murphy involved a large number of MDOC staff members who, according to the estate, caused the decedent-prisoner's death by failing to emergently treat his medical and psychiatric conditions and exposing him to hot temperatures while on psychotropic drugs. This death occurred significantly before T.S.'s death. This death and lawsuit and the regular discussions in the Hadix suit about the risks of dehydration of such patients provided Defendants with ample notice in advance of T.S.'s death of such risks.
Regarding torture, the Eighth Amendment, which prohibits "cruel and unusual punishments," was ratified as part of the Bill of Rights (the first ten Amendments) on December 15, 1791 when so ratified by the State of Virginia (after ratifications of other states such that two-thirds of the states had then ratified the Bill of Rights in accordance with Article V of the Constitution). The turn of phrase "nor cruel and unusual punishments [**45] inflicted" was borrowed from the English Bill of Rights of 1689, which meant to prohibit the imposition of punishments which were not statutorily authorized or otherwise clearly excessive. Gregg v. Georgia, 428 U.S. 153, 169-70, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). The drafters and adopting states, at the time, were primarily concerned with banning barbarous methods of execution and torture once practiced in England and then practiced in other countries such as France and Spain. Id. Indeed, Patrick Henry objected before the Virginia Assembly to the language of the original Constitution for its failure to contain a torture prohibition. Id. at 169-70 & n.17.
While this was so, it was arguable from the beginning as to what exactly was prohibited by the Eighth Amendment. The backdrop to the Amendment was the Act of April 30, 1790, which established the first set of legislated punishments for various offenses against the United States. Session II, ch. 9, 1 Stat. 112-19. The Act allowed such punishments as the use of the pillory for perjury, limited to one hour (section 18), and capital punishment (hanging) for murder and treason, (sections 4, 30 & 33). 9 Id. The Act included [**46] grisly provisions allowing post-mortem dissection of murderers by surgeons and denial of clergy to murderers (to ensure their damnation) (sections 4 and 31). Id. This first penal code was enacted after the proposal of the Bill of Rights. See Harmelin v. Michigan, 501 U.S. 957, 980, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (discussing history of statute).
FOOTNOTES
9 A pillory was a locking wooden framework, with holes for the head and hands, used to retrain offenders and expose them to public ridicule.
This legacy was confronted by the Supreme Court in 1878 in the case of Wilkerson v. State of Utah, 99 U.S. 130 9 Otto 130, 25 L. Ed. 345 (1878), which was asked the question of whether a sentence issued under a Utah statute which gave a convicted murderer the choice between hanging, shooting and beheading was unconstitutional when the statute was later amended by another statute which authorized execution but did not [*591] specify a method of execution. The Wilkerson Court said that,
Difficulty would attend the effort to define with exactness [**47] the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution. . . .
Wilkerson, 99 U.S. at 135-36. The Wilkerson Court did not, however, set aside the Utah sentence.
Some eleven years later, a district court in Georgia considered without amusement a county jail keeper who was receiving federal prisoners and, on more than one occasion, shackled a prisoner by the neck to the cell grating. Judge Speer found that the unlawful act was cruel and unusual punishment and subjected the prisoner to an unreasonable risk of death; thus, he held the jailer in contempt. In re Birdsong, 39 F. 599, 600 (D. Ga. 1889). Here is how he said it:
This principle of the common law is of force in this country as in England, and thus we see that neither this court, nor, indeed, the highest court in the land, would assume, even after full hearing, to exercise the power to chain up by the [**48] neck a prisoner for disorderly conduct, even the most atrocious, and even though committed in the actual presence of the court. Had any judge of America done with the most degraded convict what this jailer admits he did with the person of this prisoner, his impeachment would be inevitable. Well, may a jailer arrogate to himself powers which are withheld from the courts? . . . . The proposition is unworthy of any intelligent mind trained in the letter or the philosophy of the law. But we are not left in the determination of this question to the consideration of those great fundamental principles announced for the protection of the individual against unlawful punishments and penalties. The authorities are equally clear in their denial of the power exercised by the jailer with this prisoner. At common law it was not lawful to hamper a prisoner with irons, except to prevent an escape. 'Otherwise,' it is declared, (1 Russ. Crimes, 420,) 'notwithstanding the common practice of jailers, it seems unwarrantable and contrary to the mildness and humanity of the laws of England by which jailers are forbid to put their prisoners to any pain or torment.' Sir Edward Coke, perhaps the most erudite [**49] of English lawyers, certainly profoundly versed beyond any in the principles of the common law, although noted for his harshness and severity to prisoners, declared that 'by the common law it might not be done.' 2 Inst. 381. In consonance with the spirit of the ancient law, the statute of 4 Geo. IV., c. 64, Sec. 10, subsec. 12, provides that no prisoner shall be put in irons by the keeper of any prison except in case of urgent and absolute necessity. 4 Bac. Abr. 479; Encyclopaedia Britannica, tit. 'Prison Discipline.' And by the same act the jailer was provided power to punish prisoners for disorderly conduct, and for profane cursing and swearing; but the broad intelligence and humane spirit of parliament limited the maximum penalties for such conduct to close confinement in the refractory or solitary cells, and a diet of bread and water only, for any term not exceeding three days. . . .
[This punishment] was, in fact, punishment by the pillory, but a pillory where the links of the trace chain and the padlock encircling the bare neck of the prisoner were substituted for the wooden [*592] frame. This punishment was abolished in England in 1837. 7 Wm. IV., and 1 Vict. c. 23. It was done [**50] away with in France in 1832, and in this land of humanity and lawful methods it was forbidden by the act of congress of February 28, 1839, (5 St. at Large, 322;) and yet the jailer testified that this was his usual method for the punishment of refractory prisoners,- a method which called imperatively for the ruling of the court declaring it illegal.. . . . We declare, however, that there is not, nor has there been at any time in the history of the state, any law of any character which will justify or condone the act of chaining for hours a prisoner by the neck, in a standing position, as a means of punishment for any offense whatever. . . .
Much has been said as to the character of the individual who was punished. This is not a question of individuals. . . . If the jailer is judge, jury, and executioner, can it be predicted with certainty what will be the character or color of the next victim of the chain and padlock? It is a rule we are considering,- a rule for the protection of the unfortunate as well as of the vicious. The constitution forbids a cruel or unusual punishment, and there is no syllable relative to the character or color of the victim in that matchless charter for [**51] the preservation of right and the prohibition of wrong. In consideration of the premises, and to emphasize its judgment that an unwarrantable and illegal punishment has been inflicted on this prisoner, and to protect this and other prisoners, the court assesses a penalty of $ 50, with costs, against the jailer. . .
In re Birdsong, 39 F. at 600-03.
In Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910), the Supreme Court reached a similar holding. It held that a punishment inflicted in the Islands of the Phillipines, 15 years of hard labor in candena (meaning leg and hand irons) for a fraud offense was "cruel and unusual punishment" banned by the Eighth Amendment. The Weems decision was subsequently explained by the Supreme Court in Trop v. Dulles, 356 U.S. 86, 100-01, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion), a post-World War II case, which held unconstitutional the World War II punishment of denaturalizing a soldier for desertion. Trop held that punishments aside from fines, imprisonment and execution are constitutionally suspect exercises under the Eighth Amendment. Trop, 356 U.S. at 100. It further said of the [**52] Weems holding:
The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
Trop, 356 U.S. at 100-01.
This progress has not stopped with Trop since numerous Supreme Court decisions have relied upon evolving social standards in measuring the constitutional propriety of severe governmental sentences and punishments. See, e.g., Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (holding that execution of those 18 years or younger at the time of their offense offends evolving Eighth Amendment standards); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (holding that execution of the mentally ill violates contemporary Eighth Amendment standards); Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (plurality decision) (holding that mandatory death penalty statutes for certain [*593] offenses violated evolving Eighth Amendment standards).
More recently the principles of Birdsong and Weems were applied by the Eighth Circuit to prohibit disciplinary [**53] corporal punishment by state corrections officers. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) prohibited the use of the strap (whipping) as a prison disciplinary method by the State of Arkansas. The words of the decision are worthy of repetition:
. . . . The federal courts, including this one, entertain a natural reluctance to interfere with a prison's internal discipline. This is true with respect to federal institutions, . . ., as well as to state prisons, . . . .
However, the courts, including this one, have not hesitated to entertain petitions asserting violations of fundamental rights and, where indicated, to grant relief. In Glenn v. Ciccone, which we have just cited, this court clearly indicated that 'a factual showing of cruel and unusual punishment in violation of the Eighth Amendment' would support interference by a federal court. 370 F.2d at 363. We have made a like statement in many other cases. . . . Although the Eighth Circuit cases just cited concern a federal institution, the principle, of course, has equal application to a state penitentiary. . . .
This takes us then to a consideration of the meaning and scope [**54] of the Eighth Amendment's proscription of the infliction of 'cruel and unusual punishments.' . . . .
In Kemmler, 136 U.S. at 446-447, 10 S. Ct. at 933, the Court describes, as within the constitutional prohibition, punishments which are 'manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like' and, as cruel, those which 'involve torture or a lingering death.' And it said that the word 'cruel,' as used in the Eighth Amendment, 'implies there something inhuman and barbarous,-something more than the mere extinguishment of life.' 136 U.S. at 447, 10 S. Ct. at 933. In O'Neil v. Vermont, supra, 144 U.S. at 339-340, and 364, 12 S. Ct. 693, Mr. Justice Field, in dissent (joined by Justices Harlan and Brewer, 144 U.S. at 370-371, 12 S. Ct. 693), advanced the thought that the Amendment's 'inhibition is directed, not only against punishments of the character mentioned, but against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.' He went on to say that although a state has the power to whip for petty offenses, 'repulsive [**55] as such mode of punishment is,' the increase of such punishment by accumulation for multiple offenses could be both unusual and cruel. . . .
In summary, then, so far as the Supreme Court cases are concerned, we have a flat recognition that the limits of the Eighth Amendment's proscription are not easily or exactly defined, and we also have clear indications that the applicable standards are flexible, that disproportion, both among punishments and between punishment and crime, is a factor to be considered, and that broad and idealistic concepts of dignity, civilized standards, humanity, and decency are useful and usable. We recognize that some of these utterances by the Court were made in concurrence or dissent or in the approach, evidently now superseded, through the Fourteenth Amendment's due process clause rather than jointly through the Fourteenth and Eighth Amendments. All this, however, strikes us as of no import because we read and ascertain in the totality of the [*594] language used the basic attitude of the entire Court to the Eighth Amendment.
With these principles and guidelines before us, we have no difficulty in reaching the conclusion that the use of the strap in the [**56] penitentiaries of Arkansas is punishment which, in this last third of the 20th century, runs afoul of the Eighth Amendment; that the strap's use, irrespective of any precautionary conditions which may be imposed, offends contemporary concepts of decency and human dignity and precepts of civilization which we profess to possess; and that it also violates those standards of good conscience and fundamental fairness enunciated by this court in the Carey and Lee cases.
Our reasons for this conclusion include the following: (1) We are not convinced that any rule or regulation as to the use of the strap, however seriously or sincerely conceived and drawn, will successfully prevent abuse. The present record discloses misinterpretation and obvious overnarrow interpretation even of the newly adopted January 1966 rules. (2) Rules in this area seem often to go unobserved. Despite the January 1966 requirement that no inmate was to inflict punishment on another, the record is replete with instances where this very thing took place. (3) Regulations are easily circumvented. Although it was a long-standing requirement that a whipping was to be administered only when the prisoner was fully [**57] clothed, this record discloses instances of whippings upon the bare buttocks, and with consequent injury. (4) Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous. (5) Where power to punish is granted to persons in lower levels of administrative authority, there is an inherent and natural difficulty in enforcing the limitations of that power. (6) There can be no argument that excessive whipping or an inappropriate manner of whipping or too great frequency of whipping or the use of studded or overlong straps all constitute cruel and unusual punishment. But if whipping were to be authorized, how does one, or any court, ascertain the point which would distinguish the permissible from that which is cruel and unusual? (7) Corporal punishment generates hate toward the keepers who punish and toward the system which permits it. It is degrading to the punisher and to the punished alike. It frustrates correctional and rehabilitative goals. This record cries out with testimony to this effect from the expert penologists, from the inmates and from their keepers. (8) Whipping creates other penological problems and makes adjustment to society more difficult. [**58] (9) Public opinion is obviously adverse. Counsel concede that only two states still permit the use of the strap. Thus almost uniformly has it been abolished. It has been expressly outlawed by statute in a number of states. See for example, N.D. Cent. Code § 12-47-26 (1960); S.D. Code § 13.4715 (1939). And 48 states, including Arkansas, have constitutional provisions against cruel or unusual punishment. Ark. Const. art. 2, § 9.
We are not convinced contrarily by any suggestion that the State needs this tool for disciplinary purposes and is too poor to provide other accepted means of prisoner regulation. Humane considerations and constitutional requirements are not, in this day, to be measured or limited by dollar considerations or by the thickness of the prisoner's clothing. . . .
The district court's decree is vacated and the case is remanded with directions to enter a new decree embracing the [*595] injunctive relief heretofore granted but, in addition, restraining the Superintendent of the Arkansas State Penitentiary and all personnel of the penitentiary system from inflicting corporal punishment, including the use of the strap, as a disciplinary [**59] measure.
Jackson v. Bishop, 404 F.2d 571, 577-81 (8th Cir. 1968) (Judge Blackman) (some citations omitted). See also Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974) (prohibiting the use of paddling and the medically unsupervised use of tranquilizers as to juvenile inmates); Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992) (holding that the use of excessive and malicious force against a prison inmate may violate the Eighth Amendment even though the force did not cause physical injury).
This brings us to the present situation--whether the use of mechanical in-cell restraints as a disciplinary method and/or control mechanism by officers of the Michigan Department of Corrections at the Hadix facilities violates the Eighth Amendment. The Court finds that it does. In making this finding, the Court is persuaded by the reasoning in Jackson. Each of the arguments against whipping applies with equal force to punitive restraint mechanisms, a practice prohibited by the common law. Those mechanism only frustrate the process of correction and impose unreasonable duties upon correctional officers attempting to maintain that regime. Those mechanisms, [**60] much more so than whipping, pose a deadly risk to the persons restrained because it subjects those persons to a known unreasonable risk of heart attack, dehydration and asphyxiation as testified by the medical monitor and Plaintiffs' expert witness. The risk can no longer be overcome by medical monitoring because correctional physicians now recognize that punitive restraints are a form of torture which cannot be ethically facilitated by physician services, including facilitative medical monitoring. Such was the testimony of three of the four physicians who testified during the hearing, with the exception of Dr. Pramstaller.
This position also represents a consensus of the medical community, as demonstrated by its new ethical rules which were motivated by recent attention to the untoward Abu Ghraib scandal involving detainee abuse. Furthermore, the President recently approved, on October 17, 2006, the Military Commission Act of 2006, PL 109-366, 120 Stat. 2600. That Act governs treatment of unlawful foreign combatants held at Guantanamo Bay, Cuba and provides procedures for those persons' trial and detention. The Act provides, at section 949s, that,
Punishment by flogging, [**61] or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a military commission under this chapter or inflicted under this chapter upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited under this chapter.
120 Stat. 2600, 2617. If the punitive use of irons is to be prohibited as to foreign unlawful combatants, then a fortiori its use should be prohibited within Hadix facilities out of deference to those inmates' constitutional rights.
Defendants have argued in their papers that their own six-hour policy provides a sufficient remedy which should be approved. This argument is wholly unconvincing. The substitution of six hours of evil for unlimited evil, though an improvement, does not win the day. The six-hour policy is limited to restraint beds and does not prohibit the use of other dangerous restraint devices at the end of the six-hour [*596] period. It does not contain restrictions on the use of cumulative periods of restraint and it does nothing to prevent death within the first six hours. Further, the fact that physicians regard such treatment [**62] as torture and will not facilitate it means that the process could only be continued by either forsaking medically necessary examinations or commissioning medical officers to violate their professional ethical rules. The Court will do neither.
The Court finds that the Defendants' practice constitutes torture and violates the Eighth Amendment. Its cessation is required immediately to prevent further loss of life, loss of dignity and damage to both inmates and correctional officers. The Court finds that this prohibition is favored by all of the Rule 65(a) factors such that a preliminary injunction supporting the prohibition should enter. The Court further finds that this prohibition is compliant with the PLRA provisions of 18 U.S.C. § 3626(a) for limited injunctive relief. Although this injunction does not permit choice as to punitive restraints, the PLRA does not require this flexibility because such options are constitutionally prohibited. The prohibition will be worded to make its terms clear to Defendants and not to infringe upon any legitimate uses of mechanical restraints, and to otherwise comply with the PLRA provisions.
What legitimate uses of mechanical [**63] restraints will be permitted in Hadix facilities? The use of in-cell restraints for punitive reasons, correction, to prevent in cell "disruption," in cell "destruction of property," or "observation other than by physicians or psychiatrists" is prohibited. Restraints may still be used for transportation of prisoners, for movement of prisoners between secure locations, for the safe provision of services to prisoners, and for temporary emergency reasons such as to quell a riot or to provide emergency officer or prisoner safety. Restraints may be used to arrest prisoners engaged in escape or other crime, such as assault. Restraints may also be used by medical and psychiatric staff to prevent self-harm, injury to staff, and interference with treatment, provided that the medical staff supervises the use of the restraints by daily physician orders and monitors the conditions of patients regularly and around the clock to ensure that patient health is not unduly compromised.
This prohibition does not prevent the Director from protecting prisoner health, which may be accommodated by delivery of self-destructive and mentally-ill prisoners to doctors. It also does not prevent the Director [**64] from protecting life and property, which may be accommodated by the delivery of destructive inmates to secure living quarters without furniture or fixtures. Both of those contingencies are already part of the existing Director's Office Memorandum.
b. Psychological and Psychiatric Staffing Levels
The evidence showed that patients with serious psychological and psychiatric needs were not timely seen, were not provided services consistent with clinical standards of care, and in many cases the failures of service caused tragic patient consequences, including death. Defendants' arguments that the staffing levels were only temporarily low ignores both fact and logic. The staffing levels themselves appear inadequate given that staffing is not effectively supervised by a full-license psychologist and given that the present level of staffing does not reliably result in the provision of necessary services to emergent and other serious cases. The provisions made for staff absence put the burden of those absences on the prisoner population. The use of distant doctors to continue psychiatric medications [*597] without patient interviews, blood testing and regular patient visits is clinically inappropriate [**65] and highly dangerous to the prisoners served. Overall, the record supports Rule 60(b)(6) relief and a Rule 65(a) injunction. Specifically, each of the Rule 65(a) factors favors the issuance of the injunction.
Because of the PLRA's insistence upon giving Defendants' maximum flexibility in meeting constitutional requirements, the Court will order only that Defendants maintain staffing necessary to provide prisoners with routine and emergency access to psychiatric and psychological services on a daily basis. Defendants will be permitted to file with the Court a staffing plan, within 45 days, compliant with the Court's Opinion and Preliminary Injunction for approval. The plan should identify how many additional staff members are necessary to provide required services, and should specify the qualifications of those persons. The plan must include additional staffing to ensure full-time psychiatric coverage at JMF and a substitute psychiatrist for periods of leave. It must also include adequate staffing to ensure daily psychologist rounds in segregation, and that those rounds are not limited due to staff leave. It must further include additional staffing to ensure that limited license staff [**66] are properly supervised. Additionally, the plan should identify its means and methods for hiring and retaining the necessary staffing level. The ordering of such plan is compliant with the PLRA provisions of 18 U.S.C. § 3626(a) for limited injunctive relief. The relief is limited, tailored to the constitutional violations, and is addressed in a fashion to permit Defendants choices between possible staffing options.
c. Requirement of Daily Rounds in the Segregation Unit
Plaintiffs have wisely requested daily psychologist rounds in the segregation unit. This request is supported by the record evidence that mentally ill prisoners, including T.S., are often housed in segregation and often have psychiatric needs which will not be accommodated without those rounds due to lack of movement and prisoner inability to request care. Segregation is also physically demanding and places prisoners with mental illness at heightened risk of mental decompensation and conflict with correctional officers. These phenomena are well known in the corrections community. The failure to take corrective action in light of the observed clear failures of mental health care in the [**67] segregation unit warrants a finding of both an Eighth Amendment violation and a need for injunctive relief. As such, the Court finds that the requested injunction should issue because the request is favored by each of the Rule 65(a) factors. Without such relief, prisoners will continue to be hidden in segregation without access to necessary and sometimes life-saving care.
In order to accommodate the Director's need for flexibility and choice in the implementation of this requirement, though, the Court will order its implementation as part of the "plan" explained above. Defendants should explain, when they explain how the new staffing will be provided, when a psychologist or psychiatrist will be available for segregation rounds. However, given the necessity of those rounds to save human life, the Court urges Defendants to make this a priority in their scheduled planning. The ordering of such plan is compliant with the PLRA provisions of 18 U.S.C. § 3626(a) for limited injunctive relief. The relief (like the other relief described in this Opinion) is limited and tailored to the constitutional violations, and is addressed in a fashion to permit Defendants flexibility [**68] in meeting constitutional [*598] requirements and not to unduly intrude upon State operation of the prison system.
d. Require Protocols for Medical/Mental Health Staff and Interdisciplinary Meetings
Cases like T.S., P.H. and others listed by Dr. Walden, show that there are a large number of complicated cases with interdisciplinary problems that unfortunately are being regularly mistreated and/or ignored by staff. The phenomenon is now a regular feature of the system. Cases which can be described by the disciplines as either medical or mental health are described by the competing disciplines as within the ken of the other, and no attempt is made to coordinate care. Rather, unless the patient is very active in seeking care (which is often times impossible due to mental limitations), the patient simply falls into the black hole between the disciplines with predictable results-suffering, aggravation of symptoms, aggravation of the costs of treatment, and sometimes death. Therefore, the Court finds that this pattern and practice of non-treatment and uncoordinated treatment constitutes an Eighth Amendment violation because it routinely deprives patients of necessary services for serious [**69] medical and mental health needs. Remedy is necessary and one will be ordered which allows Defendants maximum flexibility and minimal intrusiveness consistent with the requirements of 18 U.S.C. § 3626(a). The below described remedy meets this requirement.
Because of the seriousness of the violation, the Court also approves the issuance of a preliminary injunction to address the chronic failure identified above. Because the regular Eighth Amendment violations cause irreparable harm, including unnecessary pain and aggravation of injury, the Court further determines that each of the Rule 65(a) factors favors the issuance of relief. The substance of this Injunction will require the development of a plan that insists upon coordination of care between the disciplines. Also, given that the case of T.S. and other cases of patient care, demonstrated widespread provider indifference to patient care, the Court will also order that Defendants require staff to attend, as part of their meetings, a training, the content of which should be approved by Dr. Cohen, the medical monitor, to redress such indifference. Part of this training should include instruction about the care [**70] providers' role in insuring that patients are treated humanely by custody staff and insuring that patients' medical and mental health care is timely provided by them and is not delayed by administrators of the Director and/or administrators and staff of CMS.
Here is the basic message: You are valuable providers of life-saving services and medicines. You are not coatracks who collect government paychecks while your work is taken to the sexton for burial. If a patient does not receive necessary medical or psychological services, including medicines and specialty care, it is not his problem, it is your problem, a problem that must be solved at lunch, nights or weekends, if necessary. If someone in the bureaucracy, including CMS, is stopping you from providing necessary services in a timely way, or stopping the patient from obtaining necessary specialist care or medicine, you should pester the malefactors until they respond and the services are provided. If they still won't relent, you are to relay their names, including correct spellings and addresses at which they may be arrested, to the medical monitor so those persons may be held in contempt and jailed, if necessary. The days of dead [**71] wood in the Department of Corrections are over, as are the days of CMS intentionally [*599] delaying referrals and care for craven profit motives.
VI. CONCLUSION
An Order shall enter granting Plaintiffs' Motion to Reopen Judgment Regarding Mental Health Claims and Issue a Preliminary Injunction. The Preliminary Injunction shall order the remedies sought by Plaintiffs, including a ban on punitive restraints at the Hadix facilities, a requirement that Defendants assess staffing needed to provide routine and emergency access to both psychiatric and psychological services and plan to do so emergently, a requirement that the new staff implement daily psychologist rounds in the segregation unit, and a requirement that Defendants develop protocols for appropriate coordination of medical and mental health care and require staff attendance of coordination and training meetings.
"The degree of civilization in a society can be judged by entering its prisons." Attributed to Feodor Mikhailovich Dostoyevsky, Respectfully Quoted: A Dictionary of Quotations, no. 1527 (Library of Congress 1989).
God bless T.S. and the others. Their lives were short, but their legacies may be long.
[**72] /s/ Richard Alan Enslen
SENIOR UNITED STATES DISTRICT JUDGE
DATED in Kalamazoo, MI:
November 13, 2006
ORDER AND PRELIMINARY INJUNCTION
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Plaintiffs' Motion to Reopen Judgment Regarding Mental Health Care and Issue a Preliminary Injunction (Dkt. No. 2102) is GRANTED and section II.B of the Consent Decree is reopened limited to the provisions of this Order and Preliminary Injunction.
IT IS FURTHER ORDERED that Defendants and all officers employed at Hadix facilities shall immediately cease and desist from the practice of using any form of punitive mechanical restraints within Hadix facilities, and Defendants shall timely develop practices, protocols and policies to enforce this limitation consistent with the Court's instructions at section V.3.a of its Opinion. These matters shall be reported to the Court as part of a plan for Court approval within 45 days of this Order and Preliminary Injunction.
IT IS FURTHER ORDERED that Defendants shall immediately work to develop a staffing plan for adequate psychiatric and psychological staffing at Hadix [**73] facilities to ensure that routine and emergent psychiatric and psychological services are provided in a timely way, which plan shall be filed for Court approval within 45 days of this Order and Preliminary Injunction, and which plan shall be consistent with the Court's instructions at section V.3.b of its Opinion.
IT IS FURTHER ORDERED that Defendants shall immediately work to provide daily psychologist or psychiatrist rounds in the segregation unit at the Hadix facilities, and shall report their staffing proposal to accommodate this requirement to the Court for approval in the plan specified in the preceding paragraphs, consistent with the Court's instructions at section V.3.c of its Opinion.
IT IS FURTHER ORDERED that Defendants shall immediately work to develop protocols for the coordination of mental health and medical staff, and shall require weekly conferences of the two disciplines which shall include, but not be limited to the treatment of prisoners in the segregation unit, and which shall include necessary training to prevent staff and administrative indifference to the provision of care, consistent with the Court's instructions [*600] at section V. [**74] 3.d of its Opinion. The proposal developed shall be filed with the Court for approval as part of the plan discussed in the preceding paragraphs.
IT FURTHER ORDERED that the requirement of Plaintiffs' posting of security pursuant to Federal Rule of Civil Procedure 65(b) is WAIVED due to Plaintiffs' indigence and their high likelihood of success upon final hearing.
IT IS FURTHER ORDERED that Plaintiffs shall be permitted discovery as to mental health care in advance of a final injunctive hearing. The parties shall contact Magistrate Judge Ellen S. Carmody and arrange to appear before her for a scheduling conference to set discovery and motion filing deadlines on mental health issues. The final injunctive hearing will be later scheduled for a three-day evidentiary hearing at an appropriate interval after the motion filing deadline so established.
/s/ Richard Alan Enslen
SENIOR UNITED STATES DISTRICT JUDGE
DATED in Kalamazoo, MI:
November 13, 2006
EVERETT HADIX, et al., Plaintiffs, v. PATRICIA L. CARUSO, et al., Defendants.
Case No. 4:92-CV-110
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
461 F. Supp. 2d 574; 2006 U.S. Dist. LEXIS 82399
November 13, 2006, Decided
November 13, 2006, Filed
OPINION BY: Richard Alan Enslen
OPINION
[*576] Say a prayer for T.S. and the others who have passed. Any earthly help comes far too late for them.
I. BACKGROUND
1. Procedural History
This Court held an evidentiary hearing regarding Plaintiffs' Motion to Reopen Judgment Regarding Mental Health Care and Issue a Preliminary Injunction on October 11-13, 2006. Also considered during the hearing were two other motions by Plaintiffs, which will be determined later. The Court has now received supplemental proofs and post-hearing briefs from the parties as to the Motion to Reopen. Given the significance of the substantive issues, the Court now resolves the Motion without delay.
A short primer on the history of mental health care at the Hadix facilities maybe necessary to understand the present controversy. This suit was filed in the Eastern District of Michigan in 1980 to redress a variety of unconstitutional conditions, including inadequate mental health care, at certain designated Jackson, Michigan [**2] prison facilities operated by prison officials of the Michigan Department of Corrections pursuant to 42 U.S.C. § 1983. In 1985, a Consent Decree was entered by stipulation of the parties with the approval of United States District Judge John Feikens. Section II.B of the Consent Decree pertained to mental health care for prisoners within the Hadix facilities.
Judge Feikens initially transferred enforcement of medical care and mental health care provisions of the Consent Decree to this Court by Order of June 5, 1992 pursuant to 28 U.S.C. § 1404(a). Hadix v. Johnson, 792 F. Supp. 527, 528 (E.D. Mich. 1992). The purpose of the Order was to promote uniformity and effectiveness of remedy in light of this Court's enforcement of a Consent Decree involving the same issues in a separate suit--United States v. Michigan, Case No. 1:84-cv-63. Id. See also Hadix v. Johnson, 228 F.3d 662, 665 (6th Cir. 2002) (discussing history of suit).
Mental health care at the facilities was routinely monitored by the Court until 2001. On January 8, 2001, the Court granted Defendants' request to terminate enforcement of [**3] the mental health provisions of the Consent Decree effective upon ten days after the filing of an Updated CQI Monitoring and Data Validation document. (Order of Jan. 8, 2001.) The document was filed by Defendants on January 23, 2001. (Dkt. No. 1437.) Thus, the termination became effective in early February 2001. Plaintiffs moved on September 8, 2006 to reopen the terminated provisions [*577] and for a preliminary injunction pertaining to mental health care. The cause for the Motion was the tragic death of a Michigan prisoner, T.S., and other fatal cases in which inmates' deaths were attributable to delays or malfeasance in the provision of mental health care.
2. Death of T.S.
On August 6, 2006, Michigan prisoner T.S. died. The basic circumstances of his death were discovered by medical monitor Dr. Robert Cohen, M.D. between August 7, 2006 and August 10, 2006, and conveyed to the Court by letter of August 14, 2006. (Dkt. No. 2088.) T.S. was a twenty-one-year-old male with a history of mental illness. He was placed in the segregation unit at JMF (a Hadix facility) beginning on August 2, 2003; he spent five days in two segregation cells at JMF locked in four-point restraints to concrete [**4] slab beds without any effective medical or mental health care. He was unlocked shortly before he died.
T.S.'s death was investigated by both the Michigan Department of Corrections and by Plaintiffs. The following account is taken from trial exhibits, including custody logs, overhead in-cell videotape and portable videotape of the events between August 2, 2006 and August 6, 2006. The basic road map for the events is Plaintiffs' Exhibit 106A, which provides a time log. There are some slight discrepancies as to time of certain events between the log book and the video time recordings (of some ten minutes); the Court utilizes the time log in Exhibit 106A as the best record of the time sequence of the recorded events. (See also Pls.' Ex. 42, at bates nos. 320947-320971 (custody log); Pls.' Ex. 106B (video excerpts); Pls.' Ex. 106C (complete hand-held video); Pls.' Ex. 106D (complete overhead video).)
T.S. arrived at JMF in March 2006 and was housed as a level II general population prisoner. (Pls.' Ex. 106A at 1.) On July 31, 2006, he was transferred by custody staff from general population to administrative segregation due to disobedience of custodial orders. On August 2, 2006, at [**5] 1239 hours he was placed in soft standing restraints (locking leather and vinyl restraints around his hands, feet and waist). (Id.) He then flooded his sink and was placed on "top of the bed restraints" at 1327 hours. (Id. at 2.) "Top of the bed restraints" are according to policy "the securing of both arms and legs to a bed . . . ." (Pls.' Ex. 42, MDOC Operating Procedure, bates no. 320597, emphasis in original.) Prisoners so secured are to be observed every 15 minutes and to be offered bathroom and water drinking breaks every two hours. (Id. at bates no. 320598.)
In practice, "top of the beds restraints" is a euphemism for chaining an inmate's hands and feet to a concrete slab. T.S.'s "bed" was composed of a concrete slab with four metal, arc-shaped handles emanating from the slab for the purpose of receiving the locking restraints. (See Pls.' Ex. 106-B.) Two of the handles, positioned in the longitudinal middle of the bed, were across from each other at the outside edges of the bed to receive the hand and waist restraints. (Id.) The remaining two handles were positioned across from one another at the outer edges of the foot of the bed to receive the [**6] feet restraints. (Id.) A small mattress pad was provided, but was not used for much of the restraint because T.S. removed it and/or because he urinated on the bed. (Pls.' Ex. 106A at 3-4.) For many hours of the restraint, T.S. was naked and laid in his own urine. (Id. at 4-9.) On one occasion, T.S. refused to cooperate with his restraint; this prompted five correctional officers to use a large plexiglass shield and place their weight upon T.S. while they locked him, screaming, [*578] to the slab with chains. (Pls.' Ex. 106B.) On August 5, 2006, T.S. was removed from his cell for one hour for treatment of a urine burn on his back at Duane Waters Hospital. (Pls.' Ex. 106A at 6.) Apparently, such treatment never occurred because T.S. urinated on an examination table at the hospital. (Op. & Decl. of Jerry Walden, M.D. P 26; trial transcript ("T.T."), vol. 1, 131 (testimony adopting declaration).)
Much of the defiant and self-destructive behavior of T.S. is explained as a product of untreated mental illness. T.S. had a documented history of bipolar disorder, depression, hyperactivity disorder and suicide attempts. (Walden Decl. P 3.) T.S. was seen on August 2, 2006 by an outpatient social [**7] worker, Francis Duffy. 1 (Pls.' Ex. 103, F. Duffy Dep. 53-54.) Duffy determined that T.S. was "floridly psychotic. Exhibiting symptoms consistent with his description of manic episodes prior to incarceration." (Duffy Dep. Ex. 10.) Duffy thus referred T.S. to the "CSP"--id.--meaning the Crisis Stabilization Program that hospitalizes and treats mentally ill prisoners at the Huron Valley Men's Facility (a prison psychiatric hospital). (See Duffy Dep. 41 & 47.) Duffy had no expectation that T.S. would be transferred immediately, though, since he planned to examine T.S. the following day. (See Duffy Dep. Ex. 10.) The prior suicide attempts noted by Duffy referred to a series of suicide attempts in the Kalamazoo County Jail (T.S. stabbing himself in the stomach and attempting hanging); the hanging was attempted while T.S. was housed in the Kalamazoo Regional Psychiatric Hospital and nearly resulted in his death. (Walden Decl. P 19.)
FOOTNOTES
1 Duffy was an employee of the Michigan Department of Community Health assigned to work within JMF. (See Duffy Dep. 42.)
[**8] Duffy completed a referral form for T.S. on the morning of August 3, 2006 before examining T.S. again later in the day. (Duffy Dep. 71.) The referral form was marked "Emergent" and noted that "Prisoner decompensated . . . in detention cell . . . Prisoner remained agitated . . . Associations loose, disintegrated. Unable to determine if prisoner is responding to internal stimuli. . . ." (Duffy Dep. Ex. 9 at 1.) Duffy also noted that T.S.'s psychiatric medications could not be changed due to the absence of an on-site psychiatrist. (Id. at 2.)
The same day Duffy received an email that the referral had been received. (Duffy Dep. 71.) He later received an email that day that the referral had been approved. (Id. at 72.) T.S. was not transferred that day, though. Defendants blame the failure to transfer upon a "transfer coordinator" (secretary) at Huron Valley who failed to transmit the transfer order to JMF, together with the scheduled leave of the transferring psychiatrist on Friday, August 4, 2006 and Mr. Duffy's past reliance on email correspondence to affect transfer orders. (See Defs.' Resp., Dkt. No. 2177, at 5.)
The immediate consequence of the failure to transfer was [**9] that a psychotic man with apparent delusions and screaming incoherently was left in chains on a concrete bed over an extended period of time with no effective access to medical or psychiatric care and with custody staff telling him that he would be kept in four-point restraints until he was cooperative. (See Pls.' Ex. 106B.) At the time of these incidents, there was no on-site psychiatric coverage for JFM because the staff psychiatrist [*579] was on "an extended leave." (Walden Decl. PP 40-41.)
T.S. was prescribed several medications, including psychothropic medications, while at JMF. (Id. at P 45.) These included Lithium (which is known to cause kidney failure if adequate hydration is not maintained and Lithium levels are not regularly and closely monitored, particularly when doses are changed); Seroquel (an antipsychotic medication, which exposes patients to risks of dehydration, tachycardia and impairment of temperature auto-regulation); Hydrochlorothiazide (which must be monitored to prevent electrolyte imbalance and which could also contribute to Lithium toxicity); Levothyroine (which manages hypothyroidism); Gemfibrizol (which manages hyperlipidemia, but may cause depression [**10] in some patients); and Atenelol (which can interfere with temperature regulation). (See id.; Pls.' Ex. 114.) T.S. also had multiple cardiac risk factors, including hypertension, obesity and hyperlipidemia. (Walden Decl. P 2.) 2
FOOTNOTES
2 In particular, Lithium is known to subject patients to risk of toxicity, electrolyte imbalance, delusion, tachycardia and death. (T.T., vol. 1, 133-35.) Lithium also increases urination even while a patient is dehydrating. (Id.) T.S.'s Lithium levels were not monitored for a prolonged period preceding his restraint and death. (Id.) This was not clinically appropriate. (Id.)
During T.S.'s restraint, the conditions at the institution were hot and humid. Two of the days were designated "heat alert" days with heat index readings around 100 degrees. (Id. P 35; see also Pls.' Ex. 106B (depicting perspiring officers complaining about heat); Pls.' Ex. 243 (Accuweather Temperature Chart). 3 ) In Dr. Walden's opinion, dehyrdration severely affected T.S.'s health on August [**11] 2-3, 2006. (Id.) Throughout the restraint, T.S. was offered water by officers and often refused. (See Pls.' Ex. 106A; Walden Decl. P 27.)
FOOTNOTES
3 Defendants' interior cell measurements of temperature were lower, but not so low that heat, humidity, and hydration were not a significant concern for T.S. in the context of this restraint.
On August 6, 2006 at 0610 hours, T.S. was moved to another cell, but "top of the bed restraints" were continued. (Pls.' Ex. 106A at 8.) Four hours later, T.S. was taken to a shower. (Id.) At the time, he was clearly weakened and needed assistance in rising and walking. (Pls.' Ex. 106B.) After the shower, he was taken back to his cell via wheelchair and placed again in "top of the bed restraints." (Id.) He was removed from the restraints at 1358 hours after prolonged "sleeping." The prolonged "sleeping" was also the reason given by staff psychologist Allan Small for not examining T.S. on August 6, 2006 on repeated occasions. (Walden Decl. P 29.)
At 1359 hours, T.S. [**12] fell face first onto the concrete floor. (Pls.' Ex. 106A at 8; Pls.' Ex. 106B.) Custody staff then assisted T.S. to sit back onto the slab. (Id.) Some minutes later T.S. fell off the toilet and laid on the floor until assisted by custody staff at 1457 hours. (Id. at 9.) At that time, nurse Charles Boltjes attempted to take a pulse and/or blood pressure from T.S. in both arms. (Id. & Pls.' Ex. 106B.) Then T.S., in apparent concern for his declining health, asked Boltjes about the readings and he responded, "It's faint, but I heard it." (Pls.' Ex. 106B.) No blood pressure, pulse, temperature or other vital readings were ever recorded by Boltjes in connection with that visit. (Walden Decl. P 30.) No emergency care was summoned even though Boltjes (as reflected in his comment) had observed low cardiac output, which failure to summon emergency [*580] care was not clinically appropriate. 4 (See T.T., vol. I, 134.) One hour later Boltjes returned to pass medication and found T.S. not breathing. (Pls.' Ex. 106A at 9.) C.P.R. was attempted, but was unsuccessful. T.S. was then taken by ambulance to Foote Hospital and pronounced dead at 1655 hours. (Pls.' Ex. 42 at bates no. 320853.) [**13]
FOOTNOTES
4 Plaintiffs refer to Boltjes' conduct as arguably constituting criminal negligence. (Pls.' Trial Br. 3.) The Court agrees with that characterization. While it is true that the medical examiner has not announced an official cause of death, the delay in doing so suggests both that in depth toxicology work is being performed and full consideration given to ascribing a manner of death suggesting criminal liability.
The official incident report of the death contains one particular gross misstatement of fact. The report stated in part that "[the prisoner] was taken off TOBR restraints at 1400 hours and showed no visible health complications." (Pls.' Ex. 42 at bates no. 320842.) This conclusion is directly contradicted by the videotape displaying T.S.'s declining physical state, which was obvious. Dr. Walden concluded that the most likely cause of death for T.S. was dehydration and arrhythmia. (Walden Decl. P 43.) Walden also opines that the death was entirely preventable had timely medical and psychiatric care [**14] occurred. (Id.)
Another striking feature of the care received by T.S. was that neither custody staff (who checked on T.S. on regular intervals), nor psychological and nursing staff (who all saw T.S. in a state of decline) took any action to summon emergency care when the need to do so was obvious. As Dr. Pramstaller, the Michigan Department of Corrections Medical Director, put it, "I think there were opportunities for all the disciplines to have taken a more active role in advocating for the welfare of Mr. T.S. and unfortunately that did not happen." (T.T., vol. II, 244.) Dr. Pramstaller testified later, "I think in looking at the tapes in particular it was very apparent in the tapes that T.S. was having, number one, mental deterioration, and number two, physical deterioration. I thought that there was ample opportunity for custody officers, for mental health professionals and for nursing to have intervened and brought in a psychiatrist, brought in a medical doctor, or just done something to intervene. And that was not done." (T.T., vol. II, 272.)
Similarly, Dr. Robert Cohen, M.D., the medical monitor in this suit and a person with extensive experience not only in medicine but [**15] in the supervision of psychiatric care, testified T.S.'s medical treatment records reflected that T.S. had experienced a progressive deterioration of his mental status in the five months preceding his death. (T.T., vol. III, 577.) Dr. Cohen noted that T.S.'s medications had been modified once he arrived at JMF, but that following the modifications of his medications on May 16, the next follow-up was scheduled to take place three months later. (Id.) According to Dr. Cohen, this was too long an interval given the substantial medication changes ordered by the psychiatrist. (Id.) This treatment was, in his opinion, clinically inappropriate. (Id.) He also opined that restraint beds and other forms of punitive restraints have predictable fatal consequences which have caused them not to be used in some correctional systems. (Id.) He further opined that T.S.'s medical condition needed careful medical monitoring during a heat wave-which did not occur. (Id.)
3. Department Restraint Policies
On the subject of restraint policies, T.S.'s death was reported widely in media [*581] and has caused Defendants to change some of its practices regarding the use of "top of the bed restraints. [**16] " Defendants continue to assert that "top of the bed restraints" are useful in two instances: (1) to discourage prisoners who are not overtly mentally ill, but engaged in self-destructive behaviors such as cutting themselves or inserting foreign objects into bodily cavities; and (2) to discourage disruptive prisoners who present a threat to others and/or a threat of property damage. (Defs.' Resp., Dkt. No. 2177, at 22.) No testimony was presented as to the frequency of these instances or the advantage of this approach over other correctional policies.
Nevertheless, Director Patricia Caruso has issued a Director's Office Memorandum, DOM 2006-13, dated October 23, 2006 and effective November 1, 2006. (Id. Ex. G.) Said Memorandum limits the use of "top of the bed restraints" to a six-hour period at prisons within the Jackson Complex (which includes the Hadix facilities). (Id. at 1-2.) At the end of such period, the prisoner, if still disruptive, is to be taken to a medical or psychiatric unit for medical or psychiatric treatment (if appropriate) or, if no treatment is necessary, is to be taken to a "hardened cell" where restraints other than "top of the bed restraints" may [**17] be used to address behavioral issues, if necessary. (Id.) The policy, on its face, does not limit the number of times "top of the bed restraints" may be used in a calendar year or other period as to a single prisoner, nor does it specify a waiting period between the time of a prisoner's release from "top of the bed restraints" before a new round of "top of the bed restraints" may be reauthorized. (Id.) The policy does require a health evaluation of prisoners, by medical staff, before a prisoner is placed on "top of the bed restraints." (Id.)
This change in policy has been judged insufficient by both Dr. Cohen, the medical monitor, and Dr. Robert Griefinger, Defendants' expert witness. Dr. Cohen testified that, for the purposes of the ethical standards of the American Medical Association, "torture refers to the deliberate, systematic or wanton administration of cruel, inhumane, and degrading treatments or punishments during imprisonment or detainment." (T.T., vol. III, 575.) This is significant because physicians are required by their ethical standards to "oppose and must not participate in torture for any reason. Participation in torture includes, but is not limited to, [**18] providing or withholding any services, substances, or knowledge to facilitate the practice of torture." (Id.) Dr. Cohen classified the use of "top of the bed restraints" or other forms of restraints for punitive reasons as "torture" within that definition. (Id. at 578-79.) Dr. Cohen favored the total discontinuation of the practice because any use of the practice is likely to contribute to future prisoner deaths. (Id.) Dr. Griefinger, similarly, testified that it was unethical for a physician to provide medical clearance for any form of punitive restraints. (Id. at 500.)
4. The Case of P.H.
Dr. Cohen began the hearing with testimony concerning another prisoner death associated with inadequate psychiatric and medical care. P.H. died on August 17, 2006 at Duane Waters Hospital of congestive heart failure and suffered from end-stage heart and liver disease. (T.T., vol. I, 15.) His death was a foreseeable complication of untreated hyperthyroidism, a serious medical condition which caused P.H.'s deadly complications. (Id.) P.H. refused to take his medication for hyperthyroidism because he suffered multiple delusions that he was being poisoned and if his condition [**19] improved he would be sent to another institution to be injured or killed. (Id.)
[*582] P.H. was examined by Allan Small (the psychologist who was also assigned to care for T.S.'s week-end care) on January 19, 2005. (Id. at 15-16.) Small noted that P.H. expressed concerns about JMF staff colluding with staff from another facility to "silence him," but did not schedule P.H. for any follow up visit or other treatment. (Id.) One month later Small saw P.H. again about complaints that mail room staff were secretly collaborating against P.H. (Id. at 17.) At this time, Small believed that P.H. may have been suffering paranoid delusions, but did not schedule follow up care because P.H. refused care. (Id.)
Come May 2005, P.H. was seen by the JMF lead psychologist (David Arend) with more complaints about secret mail room plots. Arend assessed P.H. as illogical, but not mentally ill. (Id.) That same day, P.H. was admitted to Duane Waters Hospital with multiple life threatening conditions; he had thyrotoxicosis (a high level of thyroid hormone in the blood) which in turn caused atrial fibrillation, ischemic heart disease, and congestive heart failure. (Id. at 18-19.) P.H. [**20] was on several medications for his heart, blood pressure and thyroid, but refused treatment of the root cause, hyperthyroidism, because of paranoia. (Id.) He had a significant weight loss of 40 pounds (132 pounds after weight loss). (Id.)
This hospital visit led to a psychiatric visit with Dr. Wilanowski. She noted paranoid delusions on P.H.'s behalf which caused him to refuse treatment, and also fantastical thinking that he would receive a large settlement against the MDOC. (Id. at 19-20.) Dr. Wilanowski was hopeful that antipsychotic medication, Xyprexia, might relieve his symptoms so that he could be persuaded to treat his hyperthyroidism. (Id.)
Over the next year, P.H.'s medical condition deteriorated drastically without any improvement in his paranoid thinking. (Id. at 20-21.) P.H. saw an endocrinologist in May and August 2005, but the endocrinologist (who asked to see P.H. for further treatment) was not accommodated by Dr. Ivens of Correctional Medical Services ("CMS"), the company that arranges and pays for specialist services, because Dr. Ivens wanted the case managed without the specialist referral. (Id.)
For the next ten months, P.H. had multiple [**21] hospitalizations and consistently refused treatment for the hyperthyroidism. (Id. at 22.) By June 2006, his death seemed imminent and Dr. Mathai demanded from mental health staff that they determine whether P.H. was competent to continue to refuse medical care. (Id.) In response, Dr. Wilanowski prepared a standard form indicating that P.H. was not competent to refuse medical care on June 15, 2006. (Id.) That form was sent to Lansing for approval and sat idle, notwithstanding that the form dealt with a life-threatening emergency. On July 17, 2006, Defendants finally relented and sent the form onto the Attorney General's Office, who then petitioned the probate court for an order authorizing medical treatment. A hearing was not set until August 2006, by which time P.H. was in St. Joseph's Hospital in Ann Arbor. He was transferred back to DWH on August 15, 2006 and died there two days later without treatment. (Id. at 24-25.)
Dr. Cohen concluded from this medical chart that neither medical staff nor psychological staff effectively managed the case, and their delay was exacerbated by the failure to treat an emergency request for treatment as such. (Id.) According to [**22] Dr. Cohen, the toxic goiter that resulted in heart and liver failure which killed P.H. could have been cured in days had treatment [*583] been timely ordered. (Id.) Dr. Cohen found the psychological and psychiatric's staff indifference to P.H.'s condition particularly troubling. (Id. at 26.)
5. Other Cases of Treatment Failure
Plaintiffs' expert Dr. Walden also prepared an expert report on July 10, 2006. Although mental health care was not an explicit or implicit objective of that report, nevertheless it is significant that Dr. Walden discovered many instances of medical treatment failure which were causally related to inadequate psychological and psychiatric services at the Hadix facilities. Many of these cases pertain to inmates with treatable illness, who declined treatment, and were not offered psychological counseling though the conditions warranted it. Patient 15 received medical advice that he was in need of a second dialysis graft (for treatment of kidney failure). He refused. There is no record of counseling to encourage care (which is the standard of care for dialysis patients who tend to suffer from depression and die if care is neglected). (Pls.' Ex. 1B at [**23] 9; see also Second Report of Dr. Robert Cohen, M.D., at 7.) Defendants have provided a record that patient 15 was seen by Psychological Services Unit ("PSU") L.L.P. Kevin Tolsma on August 17, 2006. The disposition was "TNR"--treatment not required. Patient 15 was not seen by a psychiatrist or given counseling according to the notation. (Russell Proffer, Ex. F.) 5
FOOTNOTES
5 The Court understands that Russell's Proffer was tracking a slightly later time period then that of Dr. Walden's Report. However, the document is still very informative in that it shows whether or not the prisoners were referred for new service in the later time frame.
Also not counseled was patient 41, who was diagnosed with lung cancer and refused heart catheterization which was the prerequisite for his cancer treatment. At the time, the tumor had not spread and was likely treatable. (Pls.' Ex. 1B at 16.) There is no record of services for patient 41 between July 7, 2006 and September 2, 2006. (Russell Proffer, Ex. F.)
Other cases of failure [**24] to provide or document mental health counseling regarding medical issues include: patient 102, who needed surgery for a resistant staph infection and refused such, Pls.' Ex. 1B at 26, 44; patient 87, who suffered from heart failure and did not take his heart medication, and also did not follow up his physician's recommendation for a prostate biopsy, id. at 39; patient 1, a diabetic with juvenile onset diabetes, a history of many insulin reactions and poor blood sugar management who died of renal failure without counseling, id. at 6, 48; patient 86 refused surgery for a brain tumor after meeting with Dr. Faghihnia, a physician with a history of poor client communication, id. at 79-80; Third Report of the Associate Monitor 27-29; and patient 83, a patient with concerns about neurosurgery for arteriovenous malformation, id. at 78-79; T.T., vol. 1, 123. None of these cases were referred for service between July 7, 2006 and September 2, 2006. (Russell Proffer, Ex. F.)
Also remarkable in Dr. Walden's Report is the history of recent suicides and related deaths occurring in the absence of effective mental health care. Patient 156 killed himself after coming off of suicide [**25] watch and expressing the frustration that his medications no longer worked and he needed to "silence the voices." (Pls.' Ex. 1B at 53.) An effective drug for patient 156, Geodon, was not available to the prescribing psychiatrist because it had been apparently left off the CMS formulary as a cost-cutting measure. (Id.; T.T., vol. I, 125.) Patient 133 killed himself by overdosing on medication after learning that his children and former wife had died in an [*584] automobile accident. Dr. Walden suspects that the "system" knew of the accident and failed to provide timely counseling. (Id. at 40.)
Patient 165 died of cancer. He was found lying in his feces, after having lost 60 pounds on a "hunger strike." (T.T., vol. I, 124-25.) He was treated as a malingerer without psychological examination, but was discovered to have suffered from a fatal brain tumor which caused delirium. (Id.) Patient 165 needed coordinated medical and mental health care. The same was true of patient 229. Patient 229 spent two weeks in four-point restraints. (Pls.' Ex. 1B at 73-74.) Like T.S., he was on multiple psychotropic medications. (Id.) As Dr. Walden concluded less than one month before T.S. died, [**26]
Here is another patient who would profit from medical teaming with psychiatry. He should not be in a general ward and should be in DWH or a unit where he can be monitored daily by both psych and medicine. In hospitals today, restraint orders have to be written daily and justified each day. Such a need is absolutely critical.
(Id.)
6. Inadequate Psychological/Psychiatry Staffing
Another factor in the recent spate of delinquent care is the absence of available staff to provide necessary services. JMF currently houses 1,452 prisoners, including a segregation unit. (R. Russell Proffer, Ex. D, Arend Memo at 1.) All but 219 of those prisoners are assigned to the JMF PSU; the others are assigned to the Department of Mental Health Outpatient Mental Health Team ("OPMHT"). (Id.)
After Dr. Weller took medical leave, JMF was left without an onsite psychologist for a seven week period. 6 (Rushbrook Mem., Pls.' Ex. 5H, at 1.) When some coverage was restored to JMF on August 8, 2006, this was accomplished by sharing the psychiatrist assigned to the RGC (Reception and Guidance Center) facility. (Id. at 1-2.) The RGC services themselves are crucial because they [**27] provide beginning services to prisoners entering the Michigan prison system.
FOOTNOTES
6 The Rushbrook Memorandum also asserts that the "prisoner . . . was not in administrative segregation; he was in an observation cell located in the segregation unit . . . ." (Rushbrook Mem. at 1.) Whatever metaphysical distinction was intended by that remark is unimportant; T.S. was treated by staff as a malefactor and was told that his restraints would continue until he was cooperative.
Defendants have filed the Proffer of Richard Russell to demonstrate the provision of services to JMF inmates while Dr. Weller was on leave. The Proffer does say psychiatric services were available during Dr. Weller's leave. (Russell Proffer P 7.) However, once the Affidavit and attachments are examined and understood, they demonstrate quite the contrary. Exhibit F shows 21 evaluations between July 7, 2006 and September 9, 2006; each of these being conducted by the three PSU limited license psychologists--Small, Arend and Tolsma. (Russell Proffer, Ex. [**28] F.) Of those 21 evaluations, only five were referred for services after the initial evaluation. (Id.) The complaints ranged between anxiety, paranoia, self-injury and suicide. (Id.) Only one case, a suicide case on July 28, was referred to the Crisis Stabilization Program, meaning that the inmate would be transferred to the Huron Valley facility for hospitalization and further care. (Id.) Two cases, dated August 25 and August 28, were marked as "PSU" meaning they would receive further services from the PSU limited license staff. [*585] (Id.) Two other cases, dated August 15 and August 23, were marked as "OPT," meaning they would receive services from the Community Mental Health limited license staff. (Id.) Cases which did not receive service included: July 7, patient on hunger strike; July 24, patient comment "suicidal"; July 31, patient comment "self-injury threats"; August 9, patient comment "self-injury"; and August 14, patient comment "paranoia." (Id.)
The general impression the document gives is that PSU staff were fulfilling rote paperwork requirements in seeing patients, but would not provide actual services except in rare cases. This is exceptional given that [**29] the Court knows from extensive past experience of proofs, regarding the mental health care at the Hadix facilities, that a very significant percentage of prisoners at this facility (which is largely housed with ill inmates due to its proximity to Duane Waters Hospital) experience significant mental illness on a regular basis and would benefit from regular treatment.
Perhaps one reason for the reluctance to provide services at JMF is that the PSU staff are professionally ill-equipped for the tasks designated them. For example, Allan Small is a limited license psychologist. (Pls.' Ex. 105, A. Small Dep. 6-7.) This means that he must be supervised by a fully licensed psychologist. (Id.) The fully licensed psychologist that supervises Small and all other PSU staff is the regional director. (Id.) Small is more directly supervised by another psychologist--Marie Alcala-Cardew, who works at the Parnall facility and supervises other PSU staff. (Id.) Alcala-Cardew is also a limited license psychologist. (Id. at 14.) According to Small, his contacts with the regional director are limited to email correspondence (mostly about reporting) and he had only one face-to-face meeting [**30] with the regional director in the last year. (Id.)
The OPMHT staff has similar "qualifications." For instance, Francis Duffy is a limited license psychologist and is the most senior member/unit chief of his service team. (Pls.' Ex. 103, Duffy Dep. 7, 13.) The supervision of PSU and OPMHT staff contradicts the legal requirements of the Michigan statute. Michigan Compiled Laws section 333.18111(2) requires that a limited license holder practice under the supervision of a license holder. As the record shows, limited license holders were not supervised with the exception of the formality of a reporting relationship to a distant boss who saw them once a year.
Furthermore, the absence of qualified staff to perform advanced tasks had real documented consequences as noted above. P.H.'s case was not treated emergently and it became so due to prolonged avoidance of the case by ill-equipped staff. Similarly, T.S., and others, did not receive regular psychiatric care, blood testing for psychiatric drugs, and modification of their medications, which grossly affected those patients' outcomes. The failure to transfer T.S. in a timely way, though argued as an "isolated" problem, was not necessarily [**31] so. (See R. Russell, T.T., vol. II, 318.) Soon after Richard Russell discovered the non-transfer of T.S., he tracked other cases in August 2006 and found that the new cases were benefitted by the new tracking policy which worked to ensure that the transfer occurred timely. (Id.) Russell could not say how regular transfers were before the change in policy. (Id.)
7. Systemic Nature of Constitutional Violations
Plaintiffs' Expert, Mark Creekmore, Ph.D., also testified persuasively at the hearing regarding "root cause analysis" and other factors pertinent to whether observed [*586] constitutional violations are indicative of the level of care at Hadix facilities. His testimony was that certain sentinel events, especially including deaths, are important in analyzing the quality of services provided by an organization because they suggest what are typical responses of the system to a given set of events. (T.T., vol. III, 537.) This kind of analysis becomes particularly important when statistical records are shown to be flawed. Dr. Creekmore concluded that the statistics kept by the Department were not sufficient to permit a systemic analysis of the service system and for [**32] continuous quality improvement. (Id. at 536.) Dr. Creekmore also discussed the use of policy, flow charts and other communication strategies to avoid service "silos"-cases in which service was provided by service providers who were unaware of important facts because those facts were communicated to others but not to them. (Id. at 543-44.) These comments were specifically directed at the current division of labor between physicians, nurses, psychiatrists, psychologists and other health care staff. (Id.)
Another subject noted by Dr. Creekmore was the prevalence of missed appointments. (Id. at 554.) This suggested to Dr. Creekmore that staff's time was not being effectively managed, and that patient outcomes were being adversely affected by delays in treatment caused by a failure to manage care effectively. (Id.) Such a system unnecessarily expends resources treating a significant illness which could have been avoided by prompt treatment. (Id.) Although some of these observations were directed to medical care, the general concepts are applicable to the evidence of mental health care treatment on this record. The failures of staff to effectively treat T.S. and [**33] other mentally-ill patients signify a systemic failure of the mental health system to provide effective treatment.
II. LEGAL STANDARDS FOR PRELIMINARY INJUNCTION
The present Motion asks for relief under both Federal Rule of Civil Procedure 65(a), Rule 60(b)(6), and 18 U.S.C. § 3626(a). The Court begins by examining the general requirements for a preliminary injunction under Rule 65.
The Court must consider four factors: (1) whether there is a strong likelihood of success on the merits; (2) whether there is proof of irreparable harm to the moving party without the injunction; (3) whether substantial harm to others will be caused by the injunction; and (4) whether the public's interest is favored by the issuance of the injunction. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003); Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000); Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992). This evaluation focuses on all four factors--rather than any particular factor. In re De Lorean Motor Co., 755 F.2d 1223, 1228-30 (6th Cir. 1985). [**34]
III. PRISON LITIGATION REFORM ACT ("PLRA") STANDARDS
Under 18 U.S.C. § 3626(a)(2), a preliminary injunction may not issue unless it is:
. . . narrowly drawn, extend[s] no further than necessary to correct the harm . . ., and [is] the least intrusive means to correct that harm. The Court shall give substantial weight to any adverse impact public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity . . . .
18 U.S.C. § 3626(a)(2). Although much was made of the enactment of the PLRA at the time, its actual standards are consistent with traditional norms of non-interference [*587] with state regulation of prisons. However, such norms and standards must, as the statute recognizes, give way to constitutional standards to prevent ongoing violations, including those under the Eighth Amendment.
IV. RULE 60(b) STANDARDS
Federal Rule of Civil Procedure 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative [**35] from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. . . .
Fed. R. Civ. P. 60(b).
V. LEGAL ANALYSIS
1. Evidentiary Objections
Defendants seek to exclude some of the opinion testimony [**36] of Drs. Walden and Cohen pertaining to the adequacy of mental health treatment of Hadix prisoners. Defendants base this argument upon the holding in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the District Court's gatekeeping role under Federal Rule of Evidence 702, and the fact that neither physician is a licensed psychiatrist.
Although this argument might have some validity as to a physician with little or no practice in areas concerned with mental health (e.g., an orthopaedic surgeon), it does not track well given the experience and training of Doctors Walden and Cohen. Both physicians have prolonged histories as primary care physicians (Walden, a family doctor, and Cohen, an internist). In that capacity, both doctors regularly see patients experiencing some degree of mental illness and are required to make professional judgments as to whether to treat such illness, treat the illness in consultation with a specialist, or refer for specialist care. Furthermore, Doctors Walden and Cohen have both worked as correctional medical officers and in that role have supervised psychological care teams. Put simply, their [**37] training as physicians and their work experiences make them more than qualified to offer the opinions offered during the recent hearing. (See T.T., vol. I, 7-14 (Cohen); T.T., vol. I, 113-21 (Walden).)
Furthermore, even to the extent that the opinions relate to the need of various patients to have psychological and psychiatric care, the opinions are still admissible. The closest similar case is Walker v. Soo Line R. Co., 208 F.3d 581, 588 (7th Cir. 2000). In that case, the Seventh Circuit upheld the use of the testimony of a physician about psychiatric matters because the physician was the head of a team which included psychologists and the physician could give proper testimony based on her work experience and discussions with other [*588] team members. Id. The experiences of Drs. Walden and Cohen similarly qualify them to offer their opinions. Also supporting this result are the decisions in Jahn v. Equine Servs., PSC, 233 F.3d 382, 389 (6th Cir. 2000); and Dickerson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 982 (6th Cir. 2004). The cases cited by Defendants, including Smelser v. Norfolk So. Rwy. Co., 105 F.3d 299 (6th Cir. 1997), [**38] deal with disparate factual scenarios and do not support exclusion of expert testimony in this instance.
2 Relief under Rule 60(b)(6)
Defendants maintain that three cases demonstrate that Rule 60(b)(6) relief cannot be granted after termination of a portion of a consent decree--Vazquez v. Carver, 18 F. Supp. 2d 503, 513 (E.D. Pa. 1998), aff'd, 181 F.3d 85 (3d Cir. 1999); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1987); and Hawaii County Green Party v. Clinton, 124 F. Supp. 2d 1173 (D. Haw. 2000). With all due respect, only one of those cases, the Hawaii Green Party case, stands for the propositions cited. The Court does not view that case as persuasive authority which should be relied upon in this instance because of the differing factual circumstances present herein and because of the controlling law of the United States Supreme Court and the Sixth Circuit Court of Appeals.
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994) is the case usually cited in the context of Rule 60(b)(6) relief from a prior judgment. In Kokkonen, the Supreme Court held that a stipulation [**39] for dismissal of an entire action which did not retain jurisdiction for enforcement of a settlement agreement could not later justify Rule 60(b)(6) relief to obtain enforcement of the settlement agreement. Kokkonen, 511 U.S. at 378-79. It did so in part because it viewed the doctrine of ancillary jurisdiction, as pertaining to a dismissed diversity suit, as an insufficient basis for federal jurisdiction given that the ancillary claim (breach of settlement) was unrelated to the dismissed claim (breach of agency). Id. at 380-81. The Court also distinguished cases in which the district court had retained jurisdiction by a term of the judgment for the purposes of settlement enforcement, or "incorporated the terms of the settlement agreement in the order." Id. at 381.
It is apparent upon even causal inspection of the Kokkonen ruling that the hard stop it intended for settlement enforcement of dismissed cases does not apply in this instance. First of all, this is not an instance in which all jurisdiction was previously abandoned by a complete dismissal of the case. Rather, the Court has continued Consent Decree enforcement of medical [**40] health and fire safety provisions to prevent further constitutional violations under 42 U.S.C. § 1983. Second, the Consent Decree, which was a settlement agreement, was expressly part of the judgment (though not part of the partial termination order).
The decision in Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 662 (1st Cir. 1987) in fact recognized that renewed unconstitutional conditions as to a terminated decree would warrant a "new round of proceedings." The question of whether that "new round of proceedings" should be initiated under Rule 60(b)(6) or by separate action is a discretionary issue which presents itself both to the moving counsel and to the district court saddled with such a motion. The answer to that question, of course, depends upon the context. When a suit is finally terminated and Rule 60(b)(6) relief would be inconsistent [*589] with the usual rules of process and fair adjudication, then courts should routinely turn such requests aside. However, in the present case, wherein enforcement is on-going and the terminated Consent Decree provisions have a decided impact on the future termination of live Consent Decree [**41] provisions, Rule 60(b)(6) relief is not only possible, but it is necessary for the District Court to fulfill its constitutional and statutory role. In particular, many of the repeated and recurrent problem cases noted by Drs. Cohen and Walden concern the cracks between medical care and mental health care. Without a system that effectively addresses both areas, Eighth Amendment constitutional health care violations will continue as a by-product of unconstitutional mental health care.
Furthermore, in the present case, Consent Decree enforcement has been transferred from the Eastern District to prevent inconsistent adjudications as to the Jackson facilities. Any attempt to fracture the lawsuit by forcing separate actions on related topics would do a grave disservice to both prisoners and administrators by forcing them to function under multiple enforcement regimes. In a word, the equities of this suit demand Rule 60(b)(6) relief. The scope of such relief will be determined in addressing Plaintiffs' requests for preliminary injunctive relief. 7
FOOTNOTES
7 One of those requests, the request for a limitation on punitive restraints, does not absolutely depend upon the re-opening of the mental health provisions. This is because, given the nature of the relief, it may be properly ordered as part of this Court's jurisdiction over the medical care provisions.
[**42] 3. Preliminary Injunctive Relief
Plaintiffs have made four requests as part of their Motion: (a) the elimination of punitive mechanical restraints, including, but not limited to "top of the bed restraints;" (b) the requirement that Defendants maintain psychological and psychiatric staff levels sufficient to reliably deliver necessary psychological and psychiatric services; (c) the requirement that Defendants institute daily rounds by a psychiatrist in the segregation unit; and (d) the requirement that Defendants develop protocols for appropriate coordination of medical and mental health care, and meetings between psychological, psychiatric and medical care providers to coordinate care for prisoners.
a. Use of Punitive Restraints at Hadix facilities
This topic is interesting because it raises not only the typical Eighth Amendment issues regarding provision of medical and mental health care to prisoners, but also the concept of when punitive treatment in prison crosses the bloody line of torture so as to be prohibited by the Eighth Amendment as an illegal act of punishment. A brief review on the history of torture in the United States is, therefore, helpful. The review [**43] will be presented after another summary of the relevant Eighth Amendment mental health/medical care standards.
"Deliberate indifference to serious medical needs" violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The Eighth Amendment standard has both objective and subjective components. Id. Thus, to be liable, a defendant must know of and disregard an excessive risk to prisoner health or safety. Farmer, 511 U.S. at 837. However, in an injunctive case, proof of the subjective component is straightforward:
[*590] In this case, we are concerned with future conduct to correct prison conditions. If these conditions are found to be objectively unconstitutional, then that finding would also satisfy the subjective prong because the same information that would lead to the court's conclusion was available to the prison officials.
Hadix v. Johnson, 367 F.3d 513, 526 (6th Cir. 2004). Likewise, deliberate indifference to serious psychological needs violates the Eighth Amendment. Clark-Murphy v. Foreback, 439 F.3d 280, 292 (6th Cir. 2006); [**44] 8 Greason v. Kemp, 891 F.2d 829, 834 (11th Cir. 1990).
FOOTNOTES
8 Clark-Murphy involved a large number of MDOC staff members who, according to the estate, caused the decedent-prisoner's death by failing to emergently treat his medical and psychiatric conditions and exposing him to hot temperatures while on psychotropic drugs. This death occurred significantly before T.S.'s death. This death and lawsuit and the regular discussions in the Hadix suit about the risks of dehydration of such patients provided Defendants with ample notice in advance of T.S.'s death of such risks.
Regarding torture, the Eighth Amendment, which prohibits "cruel and unusual punishments," was ratified as part of the Bill of Rights (the first ten Amendments) on December 15, 1791 when so ratified by the State of Virginia (after ratifications of other states such that two-thirds of the states had then ratified the Bill of Rights in accordance with Article V of the Constitution). The turn of phrase "nor cruel and unusual punishments [**45] inflicted" was borrowed from the English Bill of Rights of 1689, which meant to prohibit the imposition of punishments which were not statutorily authorized or otherwise clearly excessive. Gregg v. Georgia, 428 U.S. 153, 169-70, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). The drafters and adopting states, at the time, were primarily concerned with banning barbarous methods of execution and torture once practiced in England and then practiced in other countries such as France and Spain. Id. Indeed, Patrick Henry objected before the Virginia Assembly to the language of the original Constitution for its failure to contain a torture prohibition. Id. at 169-70 & n.17.
While this was so, it was arguable from the beginning as to what exactly was prohibited by the Eighth Amendment. The backdrop to the Amendment was the Act of April 30, 1790, which established the first set of legislated punishments for various offenses against the United States. Session II, ch. 9, 1 Stat. 112-19. The Act allowed such punishments as the use of the pillory for perjury, limited to one hour (section 18), and capital punishment (hanging) for murder and treason, (sections 4, 30 & 33). 9 Id. The Act included [**46] grisly provisions allowing post-mortem dissection of murderers by surgeons and denial of clergy to murderers (to ensure their damnation) (sections 4 and 31). Id. This first penal code was enacted after the proposal of the Bill of Rights. See Harmelin v. Michigan, 501 U.S. 957, 980, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (discussing history of statute).
FOOTNOTES
9 A pillory was a locking wooden framework, with holes for the head and hands, used to retrain offenders and expose them to public ridicule.
This legacy was confronted by the Supreme Court in 1878 in the case of Wilkerson v. State of Utah, 99 U.S. 130 9 Otto 130, 25 L. Ed. 345 (1878), which was asked the question of whether a sentence issued under a Utah statute which gave a convicted murderer the choice between hanging, shooting and beheading was unconstitutional when the statute was later amended by another statute which authorized execution but did not [*591] specify a method of execution. The Wilkerson Court said that,
Difficulty would attend the effort to define with exactness [**47] the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution. . . .
Wilkerson, 99 U.S. at 135-36. The Wilkerson Court did not, however, set aside the Utah sentence.
Some eleven years later, a district court in Georgia considered without amusement a county jail keeper who was receiving federal prisoners and, on more than one occasion, shackled a prisoner by the neck to the cell grating. Judge Speer found that the unlawful act was cruel and unusual punishment and subjected the prisoner to an unreasonable risk of death; thus, he held the jailer in contempt. In re Birdsong, 39 F. 599, 600 (D. Ga. 1889). Here is how he said it:
This principle of the common law is of force in this country as in England, and thus we see that neither this court, nor, indeed, the highest court in the land, would assume, even after full hearing, to exercise the power to chain up by the [**48] neck a prisoner for disorderly conduct, even the most atrocious, and even though committed in the actual presence of the court. Had any judge of America done with the most degraded convict what this jailer admits he did with the person of this prisoner, his impeachment would be inevitable. Well, may a jailer arrogate to himself powers which are withheld from the courts? . . . . The proposition is unworthy of any intelligent mind trained in the letter or the philosophy of the law. But we are not left in the determination of this question to the consideration of those great fundamental principles announced for the protection of the individual against unlawful punishments and penalties. The authorities are equally clear in their denial of the power exercised by the jailer with this prisoner. At common law it was not lawful to hamper a prisoner with irons, except to prevent an escape. 'Otherwise,' it is declared, (1 Russ. Crimes, 420,) 'notwithstanding the common practice of jailers, it seems unwarrantable and contrary to the mildness and humanity of the laws of England by which jailers are forbid to put their prisoners to any pain or torment.' Sir Edward Coke, perhaps the most erudite [**49] of English lawyers, certainly profoundly versed beyond any in the principles of the common law, although noted for his harshness and severity to prisoners, declared that 'by the common law it might not be done.' 2 Inst. 381. In consonance with the spirit of the ancient law, the statute of 4 Geo. IV., c. 64, Sec. 10, subsec. 12, provides that no prisoner shall be put in irons by the keeper of any prison except in case of urgent and absolute necessity. 4 Bac. Abr. 479; Encyclopaedia Britannica, tit. 'Prison Discipline.' And by the same act the jailer was provided power to punish prisoners for disorderly conduct, and for profane cursing and swearing; but the broad intelligence and humane spirit of parliament limited the maximum penalties for such conduct to close confinement in the refractory or solitary cells, and a diet of bread and water only, for any term not exceeding three days. . . .
[This punishment] was, in fact, punishment by the pillory, but a pillory where the links of the trace chain and the padlock encircling the bare neck of the prisoner were substituted for the wooden [*592] frame. This punishment was abolished in England in 1837. 7 Wm. IV., and 1 Vict. c. 23. It was done [**50] away with in France in 1832, and in this land of humanity and lawful methods it was forbidden by the act of congress of February 28, 1839, (5 St. at Large, 322;) and yet the jailer testified that this was his usual method for the punishment of refractory prisoners,- a method which called imperatively for the ruling of the court declaring it illegal.. . . . We declare, however, that there is not, nor has there been at any time in the history of the state, any law of any character which will justify or condone the act of chaining for hours a prisoner by the neck, in a standing position, as a means of punishment for any offense whatever. . . .
Much has been said as to the character of the individual who was punished. This is not a question of individuals. . . . If the jailer is judge, jury, and executioner, can it be predicted with certainty what will be the character or color of the next victim of the chain and padlock? It is a rule we are considering,- a rule for the protection of the unfortunate as well as of the vicious. The constitution forbids a cruel or unusual punishment, and there is no syllable relative to the character or color of the victim in that matchless charter for [**51] the preservation of right and the prohibition of wrong. In consideration of the premises, and to emphasize its judgment that an unwarrantable and illegal punishment has been inflicted on this prisoner, and to protect this and other prisoners, the court assesses a penalty of $ 50, with costs, against the jailer. . .
In re Birdsong, 39 F. at 600-03.
In Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910), the Supreme Court reached a similar holding. It held that a punishment inflicted in the Islands of the Phillipines, 15 years of hard labor in candena (meaning leg and hand irons) for a fraud offense was "cruel and unusual punishment" banned by the Eighth Amendment. The Weems decision was subsequently explained by the Supreme Court in Trop v. Dulles, 356 U.S. 86, 100-01, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion), a post-World War II case, which held unconstitutional the World War II punishment of denaturalizing a soldier for desertion. Trop held that punishments aside from fines, imprisonment and execution are constitutionally suspect exercises under the Eighth Amendment. Trop, 356 U.S. at 100. It further said of the [**52] Weems holding:
The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
Trop, 356 U.S. at 100-01.
This progress has not stopped with Trop since numerous Supreme Court decisions have relied upon evolving social standards in measuring the constitutional propriety of severe governmental sentences and punishments. See, e.g., Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (holding that execution of those 18 years or younger at the time of their offense offends evolving Eighth Amendment standards); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (holding that execution of the mentally ill violates contemporary Eighth Amendment standards); Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (plurality decision) (holding that mandatory death penalty statutes for certain [*593] offenses violated evolving Eighth Amendment standards).
More recently the principles of Birdsong and Weems were applied by the Eighth Circuit to prohibit disciplinary [**53] corporal punishment by state corrections officers. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) prohibited the use of the strap (whipping) as a prison disciplinary method by the State of Arkansas. The words of the decision are worthy of repetition:
. . . . The federal courts, including this one, entertain a natural reluctance to interfere with a prison's internal discipline. This is true with respect to federal institutions, . . ., as well as to state prisons, . . . .
However, the courts, including this one, have not hesitated to entertain petitions asserting violations of fundamental rights and, where indicated, to grant relief. In Glenn v. Ciccone, which we have just cited, this court clearly indicated that 'a factual showing of cruel and unusual punishment in violation of the Eighth Amendment' would support interference by a federal court. 370 F.2d at 363. We have made a like statement in many other cases. . . . Although the Eighth Circuit cases just cited concern a federal institution, the principle, of course, has equal application to a state penitentiary. . . .
This takes us then to a consideration of the meaning and scope [**54] of the Eighth Amendment's proscription of the infliction of 'cruel and unusual punishments.' . . . .
In Kemmler, 136 U.S. at 446-447, 10 S. Ct. at 933, the Court describes, as within the constitutional prohibition, punishments which are 'manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like' and, as cruel, those which 'involve torture or a lingering death.' And it said that the word 'cruel,' as used in the Eighth Amendment, 'implies there something inhuman and barbarous,-something more than the mere extinguishment of life.' 136 U.S. at 447, 10 S. Ct. at 933. In O'Neil v. Vermont, supra, 144 U.S. at 339-340, and 364, 12 S. Ct. 693, Mr. Justice Field, in dissent (joined by Justices Harlan and Brewer, 144 U.S. at 370-371, 12 S. Ct. 693), advanced the thought that the Amendment's 'inhibition is directed, not only against punishments of the character mentioned, but against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.' He went on to say that although a state has the power to whip for petty offenses, 'repulsive [**55] as such mode of punishment is,' the increase of such punishment by accumulation for multiple offenses could be both unusual and cruel. . . .
In summary, then, so far as the Supreme Court cases are concerned, we have a flat recognition that the limits of the Eighth Amendment's proscription are not easily or exactly defined, and we also have clear indications that the applicable standards are flexible, that disproportion, both among punishments and between punishment and crime, is a factor to be considered, and that broad and idealistic concepts of dignity, civilized standards, humanity, and decency are useful and usable. We recognize that some of these utterances by the Court were made in concurrence or dissent or in the approach, evidently now superseded, through the Fourteenth Amendment's due process clause rather than jointly through the Fourteenth and Eighth Amendments. All this, however, strikes us as of no import because we read and ascertain in the totality of the [*594] language used the basic attitude of the entire Court to the Eighth Amendment.
With these principles and guidelines before us, we have no difficulty in reaching the conclusion that the use of the strap in the [**56] penitentiaries of Arkansas is punishment which, in this last third of the 20th century, runs afoul of the Eighth Amendment; that the strap's use, irrespective of any precautionary conditions which may be imposed, offends contemporary concepts of decency and human dignity and precepts of civilization which we profess to possess; and that it also violates those standards of good conscience and fundamental fairness enunciated by this court in the Carey and Lee cases.
Our reasons for this conclusion include the following: (1) We are not convinced that any rule or regulation as to the use of the strap, however seriously or sincerely conceived and drawn, will successfully prevent abuse. The present record discloses misinterpretation and obvious overnarrow interpretation even of the newly adopted January 1966 rules. (2) Rules in this area seem often to go unobserved. Despite the January 1966 requirement that no inmate was to inflict punishment on another, the record is replete with instances where this very thing took place. (3) Regulations are easily circumvented. Although it was a long-standing requirement that a whipping was to be administered only when the prisoner was fully [**57] clothed, this record discloses instances of whippings upon the bare buttocks, and with consequent injury. (4) Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous. (5) Where power to punish is granted to persons in lower levels of administrative authority, there is an inherent and natural difficulty in enforcing the limitations of that power. (6) There can be no argument that excessive whipping or an inappropriate manner of whipping or too great frequency of whipping or the use of studded or overlong straps all constitute cruel and unusual punishment. But if whipping were to be authorized, how does one, or any court, ascertain the point which would distinguish the permissible from that which is cruel and unusual? (7) Corporal punishment generates hate toward the keepers who punish and toward the system which permits it. It is degrading to the punisher and to the punished alike. It frustrates correctional and rehabilitative goals. This record cries out with testimony to this effect from the expert penologists, from the inmates and from their keepers. (8) Whipping creates other penological problems and makes adjustment to society more difficult. [**58] (9) Public opinion is obviously adverse. Counsel concede that only two states still permit the use of the strap. Thus almost uniformly has it been abolished. It has been expressly outlawed by statute in a number of states. See for example, N.D. Cent. Code § 12-47-26 (1960); S.D. Code § 13.4715 (1939). And 48 states, including Arkansas, have constitutional provisions against cruel or unusual punishment. Ark. Const. art. 2, § 9.
We are not convinced contrarily by any suggestion that the State needs this tool for disciplinary purposes and is too poor to provide other accepted means of prisoner regulation. Humane considerations and constitutional requirements are not, in this day, to be measured or limited by dollar considerations or by the thickness of the prisoner's clothing. . . .
The district court's decree is vacated and the case is remanded with directions to enter a new decree embracing the [*595] injunctive relief heretofore granted but, in addition, restraining the Superintendent of the Arkansas State Penitentiary and all personnel of the penitentiary system from inflicting corporal punishment, including the use of the strap, as a disciplinary [**59] measure.
Jackson v. Bishop, 404 F.2d 571, 577-81 (8th Cir. 1968) (Judge Blackman) (some citations omitted). See also Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974) (prohibiting the use of paddling and the medically unsupervised use of tranquilizers as to juvenile inmates); Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992) (holding that the use of excessive and malicious force against a prison inmate may violate the Eighth Amendment even though the force did not cause physical injury).
This brings us to the present situation--whether the use of mechanical in-cell restraints as a disciplinary method and/or control mechanism by officers of the Michigan Department of Corrections at the Hadix facilities violates the Eighth Amendment. The Court finds that it does. In making this finding, the Court is persuaded by the reasoning in Jackson. Each of the arguments against whipping applies with equal force to punitive restraint mechanisms, a practice prohibited by the common law. Those mechanism only frustrate the process of correction and impose unreasonable duties upon correctional officers attempting to maintain that regime. Those mechanisms, [**60] much more so than whipping, pose a deadly risk to the persons restrained because it subjects those persons to a known unreasonable risk of heart attack, dehydration and asphyxiation as testified by the medical monitor and Plaintiffs' expert witness. The risk can no longer be overcome by medical monitoring because correctional physicians now recognize that punitive restraints are a form of torture which cannot be ethically facilitated by physician services, including facilitative medical monitoring. Such was the testimony of three of the four physicians who testified during the hearing, with the exception of Dr. Pramstaller.
This position also represents a consensus of the medical community, as demonstrated by its new ethical rules which were motivated by recent attention to the untoward Abu Ghraib scandal involving detainee abuse. Furthermore, the President recently approved, on October 17, 2006, the Military Commission Act of 2006, PL 109-366, 120 Stat. 2600. That Act governs treatment of unlawful foreign combatants held at Guantanamo Bay, Cuba and provides procedures for those persons' trial and detention. The Act provides, at section 949s, that,
Punishment by flogging, [**61] or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a military commission under this chapter or inflicted under this chapter upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited under this chapter.
120 Stat. 2600, 2617. If the punitive use of irons is to be prohibited as to foreign unlawful combatants, then a fortiori its use should be prohibited within Hadix facilities out of deference to those inmates' constitutional rights.
Defendants have argued in their papers that their own six-hour policy provides a sufficient remedy which should be approved. This argument is wholly unconvincing. The substitution of six hours of evil for unlimited evil, though an improvement, does not win the day. The six-hour policy is limited to restraint beds and does not prohibit the use of other dangerous restraint devices at the end of the six-hour [*596] period. It does not contain restrictions on the use of cumulative periods of restraint and it does nothing to prevent death within the first six hours. Further, the fact that physicians regard such treatment [**62] as torture and will not facilitate it means that the process could only be continued by either forsaking medically necessary examinations or commissioning medical officers to violate their professional ethical rules. The Court will do neither.
The Court finds that the Defendants' practice constitutes torture and violates the Eighth Amendment. Its cessation is required immediately to prevent further loss of life, loss of dignity and damage to both inmates and correctional officers. The Court finds that this prohibition is favored by all of the Rule 65(a) factors such that a preliminary injunction supporting the prohibition should enter. The Court further finds that this prohibition is compliant with the PLRA provisions of 18 U.S.C. § 3626(a) for limited injunctive relief. Although this injunction does not permit choice as to punitive restraints, the PLRA does not require this flexibility because such options are constitutionally prohibited. The prohibition will be worded to make its terms clear to Defendants and not to infringe upon any legitimate uses of mechanical restraints, and to otherwise comply with the PLRA provisions.
What legitimate uses of mechanical [**63] restraints will be permitted in Hadix facilities? The use of in-cell restraints for punitive reasons, correction, to prevent in cell "disruption," in cell "destruction of property," or "observation other than by physicians or psychiatrists" is prohibited. Restraints may still be used for transportation of prisoners, for movement of prisoners between secure locations, for the safe provision of services to prisoners, and for temporary emergency reasons such as to quell a riot or to provide emergency officer or prisoner safety. Restraints may be used to arrest prisoners engaged in escape or other crime, such as assault. Restraints may also be used by medical and psychiatric staff to prevent self-harm, injury to staff, and interference with treatment, provided that the medical staff supervises the use of the restraints by daily physician orders and monitors the conditions of patients regularly and around the clock to ensure that patient health is not unduly compromised.
This prohibition does not prevent the Director from protecting prisoner health, which may be accommodated by delivery of self-destructive and mentally-ill prisoners to doctors. It also does not prevent the Director [**64] from protecting life and property, which may be accommodated by the delivery of destructive inmates to secure living quarters without furniture or fixtures. Both of those contingencies are already part of the existing Director's Office Memorandum.
b. Psychological and Psychiatric Staffing Levels
The evidence showed that patients with serious psychological and psychiatric needs were not timely seen, were not provided services consistent with clinical standards of care, and in many cases the failures of service caused tragic patient consequences, including death. Defendants' arguments that the staffing levels were only temporarily low ignores both fact and logic. The staffing levels themselves appear inadequate given that staffing is not effectively supervised by a full-license psychologist and given that the present level of staffing does not reliably result in the provision of necessary services to emergent and other serious cases. The provisions made for staff absence put the burden of those absences on the prisoner population. The use of distant doctors to continue psychiatric medications [*597] without patient interviews, blood testing and regular patient visits is clinically inappropriate [**65] and highly dangerous to the prisoners served. Overall, the record supports Rule 60(b)(6) relief and a Rule 65(a) injunction. Specifically, each of the Rule 65(a) factors favors the issuance of the injunction.
Because of the PLRA's insistence upon giving Defendants' maximum flexibility in meeting constitutional requirements, the Court will order only that Defendants maintain staffing necessary to provide prisoners with routine and emergency access to psychiatric and psychological services on a daily basis. Defendants will be permitted to file with the Court a staffing plan, within 45 days, compliant with the Court's Opinion and Preliminary Injunction for approval. The plan should identify how many additional staff members are necessary to provide required services, and should specify the qualifications of those persons. The plan must include additional staffing to ensure full-time psychiatric coverage at JMF and a substitute psychiatrist for periods of leave. It must also include adequate staffing to ensure daily psychologist rounds in segregation, and that those rounds are not limited due to staff leave. It must further include additional staffing to ensure that limited license staff [**66] are properly supervised. Additionally, the plan should identify its means and methods for hiring and retaining the necessary staffing level. The ordering of such plan is compliant with the PLRA provisions of 18 U.S.C. § 3626(a) for limited injunctive relief. The relief is limited, tailored to the constitutional violations, and is addressed in a fashion to permit Defendants choices between possible staffing options.
c. Requirement of Daily Rounds in the Segregation Unit
Plaintiffs have wisely requested daily psychologist rounds in the segregation unit. This request is supported by the record evidence that mentally ill prisoners, including T.S., are often housed in segregation and often have psychiatric needs which will not be accommodated without those rounds due to lack of movement and prisoner inability to request care. Segregation is also physically demanding and places prisoners with mental illness at heightened risk of mental decompensation and conflict with correctional officers. These phenomena are well known in the corrections community. The failure to take corrective action in light of the observed clear failures of mental health care in the [**67] segregation unit warrants a finding of both an Eighth Amendment violation and a need for injunctive relief. As such, the Court finds that the requested injunction should issue because the request is favored by each of the Rule 65(a) factors. Without such relief, prisoners will continue to be hidden in segregation without access to necessary and sometimes life-saving care.
In order to accommodate the Director's need for flexibility and choice in the implementation of this requirement, though, the Court will order its implementation as part of the "plan" explained above. Defendants should explain, when they explain how the new staffing will be provided, when a psychologist or psychiatrist will be available for segregation rounds. However, given the necessity of those rounds to save human life, the Court urges Defendants to make this a priority in their scheduled planning. The ordering of such plan is compliant with the PLRA provisions of 18 U.S.C. § 3626(a) for limited injunctive relief. The relief (like the other relief described in this Opinion) is limited and tailored to the constitutional violations, and is addressed in a fashion to permit Defendants flexibility [**68] in meeting constitutional [*598] requirements and not to unduly intrude upon State operation of the prison system.
d. Require Protocols for Medical/Mental Health Staff and Interdisciplinary Meetings
Cases like T.S., P.H. and others listed by Dr. Walden, show that there are a large number of complicated cases with interdisciplinary problems that unfortunately are being regularly mistreated and/or ignored by staff. The phenomenon is now a regular feature of the system. Cases which can be described by the disciplines as either medical or mental health are described by the competing disciplines as within the ken of the other, and no attempt is made to coordinate care. Rather, unless the patient is very active in seeking care (which is often times impossible due to mental limitations), the patient simply falls into the black hole between the disciplines with predictable results-suffering, aggravation of symptoms, aggravation of the costs of treatment, and sometimes death. Therefore, the Court finds that this pattern and practice of non-treatment and uncoordinated treatment constitutes an Eighth Amendment violation because it routinely deprives patients of necessary services for serious [**69] medical and mental health needs. Remedy is necessary and one will be ordered which allows Defendants maximum flexibility and minimal intrusiveness consistent with the requirements of 18 U.S.C. § 3626(a). The below described remedy meets this requirement.
Because of the seriousness of the violation, the Court also approves the issuance of a preliminary injunction to address the chronic failure identified above. Because the regular Eighth Amendment violations cause irreparable harm, including unnecessary pain and aggravation of injury, the Court further determines that each of the Rule 65(a) factors favors the issuance of relief. The substance of this Injunction will require the development of a plan that insists upon coordination of care between the disciplines. Also, given that the case of T.S. and other cases of patient care, demonstrated widespread provider indifference to patient care, the Court will also order that Defendants require staff to attend, as part of their meetings, a training, the content of which should be approved by Dr. Cohen, the medical monitor, to redress such indifference. Part of this training should include instruction about the care [**70] providers' role in insuring that patients are treated humanely by custody staff and insuring that patients' medical and mental health care is timely provided by them and is not delayed by administrators of the Director and/or administrators and staff of CMS.
Here is the basic message: You are valuable providers of life-saving services and medicines. You are not coatracks who collect government paychecks while your work is taken to the sexton for burial. If a patient does not receive necessary medical or psychological services, including medicines and specialty care, it is not his problem, it is your problem, a problem that must be solved at lunch, nights or weekends, if necessary. If someone in the bureaucracy, including CMS, is stopping you from providing necessary services in a timely way, or stopping the patient from obtaining necessary specialist care or medicine, you should pester the malefactors until they respond and the services are provided. If they still won't relent, you are to relay their names, including correct spellings and addresses at which they may be arrested, to the medical monitor so those persons may be held in contempt and jailed, if necessary. The days of dead [**71] wood in the Department of Corrections are over, as are the days of CMS intentionally [*599] delaying referrals and care for craven profit motives.
VI. CONCLUSION
An Order shall enter granting Plaintiffs' Motion to Reopen Judgment Regarding Mental Health Claims and Issue a Preliminary Injunction. The Preliminary Injunction shall order the remedies sought by Plaintiffs, including a ban on punitive restraints at the Hadix facilities, a requirement that Defendants assess staffing needed to provide routine and emergency access to both psychiatric and psychological services and plan to do so emergently, a requirement that the new staff implement daily psychologist rounds in the segregation unit, and a requirement that Defendants develop protocols for appropriate coordination of medical and mental health care and require staff attendance of coordination and training meetings.
"The degree of civilization in a society can be judged by entering its prisons." Attributed to Feodor Mikhailovich Dostoyevsky, Respectfully Quoted: A Dictionary of Quotations, no. 1527 (Library of Congress 1989).
God bless T.S. and the others. Their lives were short, but their legacies may be long.
[**72] /s/ Richard Alan Enslen
SENIOR UNITED STATES DISTRICT JUDGE
DATED in Kalamazoo, MI:
November 13, 2006
ORDER AND PRELIMINARY INJUNCTION
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Plaintiffs' Motion to Reopen Judgment Regarding Mental Health Care and Issue a Preliminary Injunction (Dkt. No. 2102) is GRANTED and section II.B of the Consent Decree is reopened limited to the provisions of this Order and Preliminary Injunction.
IT IS FURTHER ORDERED that Defendants and all officers employed at Hadix facilities shall immediately cease and desist from the practice of using any form of punitive mechanical restraints within Hadix facilities, and Defendants shall timely develop practices, protocols and policies to enforce this limitation consistent with the Court's instructions at section V.3.a of its Opinion. These matters shall be reported to the Court as part of a plan for Court approval within 45 days of this Order and Preliminary Injunction.
IT IS FURTHER ORDERED that Defendants shall immediately work to develop a staffing plan for adequate psychiatric and psychological staffing at Hadix [**73] facilities to ensure that routine and emergent psychiatric and psychological services are provided in a timely way, which plan shall be filed for Court approval within 45 days of this Order and Preliminary Injunction, and which plan shall be consistent with the Court's instructions at section V.3.b of its Opinion.
IT IS FURTHER ORDERED that Defendants shall immediately work to provide daily psychologist or psychiatrist rounds in the segregation unit at the Hadix facilities, and shall report their staffing proposal to accommodate this requirement to the Court for approval in the plan specified in the preceding paragraphs, consistent with the Court's instructions at section V.3.c of its Opinion.
IT IS FURTHER ORDERED that Defendants shall immediately work to develop protocols for the coordination of mental health and medical staff, and shall require weekly conferences of the two disciplines which shall include, but not be limited to the treatment of prisoners in the segregation unit, and which shall include necessary training to prevent staff and administrative indifference to the provision of care, consistent with the Court's instructions [*600] at section V. [**74] 3.d of its Opinion. The proposal developed shall be filed with the Court for approval as part of the plan discussed in the preceding paragraphs.
IT FURTHER ORDERED that the requirement of Plaintiffs' posting of security pursuant to Federal Rule of Civil Procedure 65(b) is WAIVED due to Plaintiffs' indigence and their high likelihood of success upon final hearing.
IT IS FURTHER ORDERED that Plaintiffs shall be permitted discovery as to mental health care in advance of a final injunctive hearing. The parties shall contact Magistrate Judge Ellen S. Carmody and arrange to appear before her for a scheduling conference to set discovery and motion filing deadlines on mental health issues. The final injunctive hearing will be later scheduled for a three-day evidentiary hearing at an appropriate interval after the motion filing deadline so established.
/s/ Richard Alan Enslen
SENIOR UNITED STATES DISTRICT JUDGE
DATED in Kalamazoo, MI:
November 13, 2006
Hadix v. Caruso
| Year | 2006 |
|---|---|
| Cite | 465 F.Supp.2d 776 (W.D. Mich. 2006) |
| Level | District Court |
| Injunction Status | Granted |
465 F. Supp. 2d 776, *; 2006 U.S. Dist. LEXIS 88696, **
EVERETT HADIX, et al., Plaintiffs, v. PATRICIA L. CARUSO, et al., Defendants.
Case No. 4:92-CV-110
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
465 F. Supp. 2d 776; 2006 U.S. Dist. LEXIS 88696
December 7, 2006, Decided
December 7, 2006, Filed
OPINION BY: Richard Alan Enslen
OPINION
[*777] FINDINGS OF FACT AND CONCLUSIONS OF LAW
Step on a man's foot once, and a polite apology will do. Do it twice, and a profuse apology is in order. Do it thrice, and you have left the land of apology and entered the arena of self-defense.
I. FACTUAL FINDINGS
A. Hearing Process
1. Hearing was held in this matter on October 11-13, 2006 to receive proofs regarding three motions by Plaintiffs. After hearing, which could not accommodate all of the parties' proofs, the Court issued a [*778] scheduling Order, on October 16, 2006, to receive additional proofs (exhibits, de bene esse depositions and other proffers). Said Order required the filing of all proofs regarding Plaintiffs' Motion to Reopen Judgment Regarding Mental Health Claims by October 31, 2006. Those proofs were duly filed and the Motion resolved by the Court's Opinion, Order and Preliminary Injunction of November 13, 2006. The balance of the supplemental proofs, regarding [**2] Plaintiffs' Motion for Further Relief and Motion for Order to Show Cause, were to be filed by November 17, 2006. That date was subsequently extended on November 17, 2006 due to the request by Defendants and in recognition of the demands of the briefing. The revised date was set for November 21, 2006. The supplemental briefing and exhibits were then timely filed by parties. 1
FOOTNOTES
1 Least the effort be misunderstood, the documents and exhibits filed fill some five full-sized litigation boxes.
B. A Brief Explanation of Terms
2. This case involves a long history and a department of state government, the Michigan Department of Corrections ("MDOC"), in love with acronyms and other linguistic short-hands. The basic terms are as follows: "CMS" refers to Correctional Medical Services, the for-profit company hired to provide medical staff for the MDOC, including specialty services staff, who are, generally speaking, independent contractors. "DWH" refers to the Duane L. Waters Hospital, the in-patient care facility [**3] at the MDOC, which facility was recently "demoted" in its licensing to a Health Care Center, though the reference to hospital has persisted in practice. DWH also contains an infirmary for convalescence of hospital patients. The "Hadix facilities" refers to the set of prison facilities, including DWH, which were part of the former Central Complex of the State Prison of Southern Michigan ("SPSM-CC") at Jackson, Michigan and/or were created to provide services in connection with those prison facilities. "RGC" refers to the Charles Egeler Reception and Guidance Center, a Hadix facility which receives new prisoners into the MDOC system. 2 "JMF," a Hadix facility, refers to the Southern Michigan Correctional Facility. 3 JMF also houses a dialysis unit for providing dialysis services and a "C-Unit," a unit for convalescence and care of infirm dialysis patients and others. "Parnall," a Hadix facility, refers to the Parnall Correctional Facility. The G. Robert Cotton Correctional Facility and Cooper Street Correctional Facility are also at Jackson, but are not Hadix facilities. "SERAPIS" refers to the ambulatory electronic medical record system used by the MDOC, the implementation [**4] of which has been a painfully slow process in its completion. "CCC" refers to Chronic Care Clinics, which are medical clinics used at Hadix facilities to regularly deliver care to chronically-ill prisoners.
FOOTNOTES
2 This facility is also often referenced as "Egeler."
3 JMF refers to its honorary title, the Josephine McCallum Facility.
C. Consent Decree and Violation Histories
3. This suit was filed in the United States District Court for the Eastern District of Michigan in 1980 to redress a variety of unconstitutional conditions, including inadequate mental health care, at certain designated Jackson, Michigan prison facilities operated by prison officials of the MDOC pursuant to 42 U.S.C. § 1983. In 1985, a Consent Decree was entered by stipulation of the parties with the approval [*779] of United States District Judge John Feikens.
4. Section II.A of the Consent Decree pertained to medical care for prisoners within the Hadix facilities. The section promised to each [**5] Hadix prisoner "medical services consistent with contemporary professional health care standards." (Consent Decree § II.A. 1.) The Decree further promised a fully-licensed hospital, medical screening, regular access to health care unimpeded by custodial staff, and staffing and new procedures sufficient to fulfill those promises. (Id. at § II.A.1-5.) In addition to other important matters, including special diets and medicines, the Decree also promised that quality assurance audit processes would be used to insure proper health care access, adequate care and supervision of care providers. (Id. at § II.A.6-12.)
5. Judge Feikens initially transferred enforcement of the medical care provisions of the Consent Decree to this Court by Order of June 5, 1992 pursuant to 28 U.S.C. § 1404(a). Hadix v. Johnson, 792 F. Supp. 527, 528 (E.D. Mich. 1992). The purpose of the Order was to promote uniformity and effectiveness of remedy in light of this Court's enforcement of a Consent Decree involving the same issues in a separate suit--United States v. Michigan, Case No. 1:84-cv-63, 989 F. Supp. 853. Id. See also Hadix v. Johnson, 228 F.3d 662, 665 (6th Cir. 2002) [**6] (discussing history of suit).
6. Despite the success of the Decree in fostering improved conditions as to many aspects of the Decree, the provision of health care has remained both a troubled and troubling aspect of the Decree. Progress in this suit was delayed between 1996 and 1999 due to appeals involving the interpretation and constitutionality of section 802 of the Prison Litigation Reform Act ("PLRA"), P.L. 104-134, codified at 18 U.S.C. § 3626. In December 1999, after such delay, the Court conducted a compliance hearing. The result of that hearing was a February 18, 2000 set of Findings of Fact and Conclusions of Law, which determined that certain provisions of the Decree should be terminated, but found constitutional violations as to other portions requiring self-remedy by Defendants. (See Feb. 18, 2000 Findings of Fact & Conclusions of Law; Feb. 18, 2000 partial termination Order; Oct. 29, 2002 Findings of Fact & Conclusions of Law ("2002 Findings") at 1.)
7. Another evidentiary hearing was held in May 2002, which charted the progress of such self- remedy. The 2002 Findings following that hearing filled 266 pages and discussed hundreds [**7] of cases of inadequate or neglected medical care. Of particular concern in those Findings were the following failures: (a) the failure of the health care system to provide timely access to care to patients with urgent and emergent serious medical problems (2002 Findings PP 217 & 324); (b) the failure of the system to provide timely access to specialty care, which failures include the delaying of surgery of a lung cancer patient for over a year and the repeated failure to transport another patient to chemotherapy appointments (with one exception), which failures caused death in both cases (2002 Findings PP 728, 729 & 860); and (c) the failure of the system to provide a readable, comprehensive and current medical record to care providers (2002 Findings PP 790-867).
8. As a consequence of these and other Eighth Amendment violations, the Court enjoined Defendants to comply with the instructions for remedy in Section XIII of the Findings. (Order & Inj., Oct. 29, 2002.) Phase one of the medical remedy was the appointment of a medical monitor. (Id. at PP 1437-38.) After interview of candidates, Robert Cohen, M.D., was appointed medical monitor pursuant to an [*780] Order of this Court authorizing [**8] independent monitor F. Warren Benton to so appoint him. 4 (Order of Apr. 21, 2003.) This appointment was to be followed by the development of a remedial plan by the Monitor and the parties. (See 2002 Findings P 1440.) However, the requirement of a remedial plan was later vacated, not because it was inappropriate, but it was contained in the same paragraph which required a heat-related remedy as to which the parties came to an agreed resolution which involved vacating that paragraph. (See id. at P 1442; Order of June 6, 2003.) 5 However, apart from those technical details, there continued at the time a mounting crisis in health care, which has fully consumed the resources of the parties, the Court and the Medical Monitor in seeking solution. We have been bailing, not sailing.
FOOTNOTES
4 The Court wishes to express its enduring gratitude to Dr. Cohen for accepting this difficult appointment and for persevering in the midst of the systemic problems in the Hadix health care system.
5 There was much else on the parties' plates at the time. The Findings related to not only medical care, but also heat-related injury and fire safety. The heat-related injury and fire safety aspects were appealed. Those appeals, after remand and substantive modifications, resulted in the entry of a heat-related injury plan and also, eventually after further findings, in an amended fire-safety plan. (See Order of June 6, 2003; Order of June 19, 2003; and Am. Fire Safety Inj. of Aug. 21, 2006.) The fire safety appeal and amendment process in particular shows that the wheel of the law, though it grinds slow, grinds fine.
[**9] C. Medical Status Reports and Preliminary Injunction Plan
9. Dr. Cohen's first medical Status Report was filed with the Court on July 13, 2004. The second was filed on January 13, 2005. The third was filed on September 12, 2005. The basic similarity between all three was extensive commentary on gross failures of care, inadequate care, and preventable injury, disease, and loss of life. The Court also received emergency correspondence concerning systemic failures (collapse of pharmacy and the death of T.S.), which are discussed farther. (Letter of June 2, 2006, Dkt. No. 2035; Letter of Aug. 14, 2006, Dkt. No. 2088.)
10. In particular, the Third Report noted a "crisis" in medical service provider staffing as of March 2005, which was exacerbated by the discharge of a delinquent doctor, Dr. Faghihnia. Another problem was that additional physician responsibilities were being placed upon the medical staff with the transfer of "C-Unit"--a unit for treatment of dialysis patients and other chronically-ill patients too sick to live in general population--to the Hadix facilities. (Third Report at 13 (Dkt. No. 1897 and also received as Pls.' Ex. 5A).)
11. Problem cases [**10] noted in the Third Report included, by way of example: patient 1, a patient who died of an untreated staph infection and gastro-intestinal bleeding while housed in administrative segregation (id. at 11); patient 2, a patient with HIV, Sicca Syndrome (chronic extreme dryness of the mouth and esophagus causing difficulty swallowing) and excessive weight loss (down to 108 pounds), who did not receive a pureed diet, and was not treated for abdominal pain, crumbled teeth and painful lesions (id. at 16-20); and patient 3, a 29-year-old cancer/HIV patient whose rectal cancer treatment was delayed by eight months due to delay in a simple diagnostic test and delay in referral for radiation (id. at 20-23). The Third Report included specific comments on 10 patients of 23 files surveyed, including dialysis patients, diabetics, and cancer patients, whose treatment were all grossly deficient and deemed representative of the facility care.
[*781] 12. During the later Preliminary Injunction hearing discussing the Third Report, Dr. Cohen also reported to the Court another instance of a prisoner death (A.R.) caused by grossly negligent care. In that case, a brittle diabetic was grossly over-prescribed [**11] insulin by his physician and no in-patient care or endocrinologist consultation was ordered to monitor the diabetic's blood sugars and care. (Hr'g Tr. of Oct. 19, 2005 at 21.) The patient asked for a glucometer to self-monitor his blood sugars, which request was not granted, and then predictably died overnight of hypoglycemia, causing heart failure. (Id.) The medical staff also took some 20 minutes to respond to the emergency and the patient was not effectively treated by on-duty medical providers before the Emergency Medical Technicians arrived. (Id.; see also Order of Dec. 16, 2005, explaining case in greater detail.)
13. As a consequence of these and other failures, which the Court found to be violations of the Eighth Amendment, the Court granted Plaintiffs' Motion for a Preliminary Injunction, which Injunction required Defendants to propose a corrective plan for Court approval. (Prelim. Inj. of Oct. 19, 2005; see also Am. Prelim. Inj. of Nov. 23, 2005.) The Plan was timely filed by Defendants. (Plan re Prelim. Inj. of Oct. 19, 2005.) The Plan was some twenty pages in length and required, among other things, the following: (1) regular physician rounds in segregation [**12] (Plan 2); (2) the audit of medical care for chronically-ill prisoners in segregation and other selected cases as part of the quality assurance process (id. at 3); (3) the establishment of an infirmary at DWH for patients needing infirmary care with 24-hour nurse and physician staffing (id. at 3-4); (4) establishment of a Unitary Medical Record System including all laboratory studies, all medications, complete with a link between SERAPIS and the pharmacy computer system, and an expansion of SERAPIS to include all clinical areas (id. at 6); (5) automatic renewals of all chronic medications (id. at 9); (6) refinement of the job description of the Jackson Medical Director to include more active medical service provider, dialysis and CMS oversight (id. at 11); (7) autopsies for all prisoner deaths (id.), (8) better communication, follow-up and monitoring regarding CMS referrals for specialty care (id. at 12-13); (9) monthly staff meeting regarding the Dialysis Program (id. at 14); and (10) enhanced staffing of service providers to meet the increased demands of the expanded clinical responsibilities at the Hadix facilities (id. at 19-20).
14. [**13] This Court held a hearing regarding such Plan on January 11, 2006. The next day, the Court approved the Plan with some important modifications including: (1) selected paragraphs were stricken as factually inaccurate; (2) the SERAPIS computer system, or equivalent system, was to be applied to pharmacy and laboratory records of prisoners at DWH and C-Unit; (3) monthly reports were required to specify the timeliness of specialty consultations, which were to be delivered in a timely way; (4) a full-time nephrologist or internist was to be added to the C-Unit; (5) all patients in segregation were to be medically reviewed within one week; and (6) Dr. Cohen was authorized to consult with a nephrologist to obtain specialty review of patient files as necessary. (Order of Jan. 12, 2006.) The language of the Plan document, which was drafted together by the parties and Dr. Cohen, expresses the parties' consensual understandings and relationship at the time. It did not express exact deadlines nor precise formulas for accomplishing certain objectives because the parties were working cooperatively at that time.
15. Defendants failed to timely appeal either the Preliminary Injunction or the [*782] Order [**14] approving and implementing the Plan.
D. Possible Successes, Fiascos and Administrative Responses
16. Not all of the news about prisoner treatment at the Hadix facilities has been adverse. Defendants have implemented the December 2005 Plan and other beneficial programs since then, and are now reporting certain measures of systemic improvement as a consequence of those changes. (Defs.' Tr. Br. 1-5.) For example, they have reported hemoglobin alc averages for diabetic patients that show the percentage of patients in good control exceeding community averages for diabetic patients in good control. (Id. at 5; Craig Hutchinson, M.D., Dep. 5-6.) How much of this improvement is due to health care as opposed to dietary control or the general facility layout itself (i.e., prisoners have assigned diets and must walk distances to obtain food and services) is not known, though the numbers are positive nevertheless. Three other positive developments have also coalesced to the benefit of diabetic care: (1) the opening of the DWH infirmary described above; (2) a pilot program to provide glucometers to inmates to self-test their blood sugars; and (3) Defendants' recent decision [**15] to provide endocrinology consults to brittle diabetics who were not benefitting from standard internist care. (See Defs.' Tr. Br. 3; Hutchinson Dep. 101.) In the Court's judgment, these improvements are not only helpful, but essential to ensure adequate medical care to diabetic patients.
17. In part, the DWH infirmary was intended to address out-of-control diabetic patients such as A.R., who needed medical monitoring, especially at night, to guard him from deadly hypoglycemia reactions due to both a change in his insulin regime and poor control generally. Self-use of glucometers by able diabetic patients is the standard of care in the community for important reasons. 6 See A.m. Diabetes Assoc., Standards of Med. Care in Diabetes (Position Statement), Diabetes Care 27 (Suppl. 1): S15-S35 (A.D.A 2004.) Diabetics who are unsure whether they are experiencing the onset of hypoglycemia need to check their blood sugars emergently (in a matter of a few minutes when blood sugars are precipitously low) to determine whether to treat the hypoglycemia with glucose (sugared food stuffs) before they lose their capacity for self-treatment (unconsciousness). The testing is also required [**16] to avoid unnecessary self-treatment, which would otherwise expose them to hyperglycemia (which has long-term negative health consequences and short-term consequences when extreme) and fluctuations in blood sugar which would otherwise complicate their treatment. 7 This testing is particularly important at p.m. hours before the patient sleeps--since a hypoglycemic reaction at night is likely to go untreated and, if severe enough, may cause death.
FOOTNOTES
6 Diabetic patients who are unable to provide for their own well-being because of mental defect or disease present a separate problem, and one probably requiring long-term hospitalization or other extensive remedies.
7 Of course, the other component to this issue is that diabetic patients are provided and allowed to store adequate food stuffs in their living quarters, and emergency food stuffs are available to custody officers to provide to prisoners suffering hypoglycemia. Special care must also be given to the treatment of diabetics in administrative segregation, many of whom simply cannot be safely housed there. Those who can be safely housed, particularly those who are insulin dependent, will require hyper-vigilance on the part of staff to prevent deadly outcomes.
[**17] 18. In the Court's judgment, the fact that self-monitoring is only now becoming available is an admission of past error, though Defendants are to be commended nevertheless for their corrective actions. [*783] They are also to be commended for having determined that endocrinologist consultations are necessary for some diabetic patients and will be made available. This is important because certain brittle diabetics, particularly type 1 diabetics whose long-term insulin regimes become ineffective over time and type 2 diabetics who are insulin dependent and experiencing difficulty with their regimes, often need specialist assistance to accomplish safe and effective treatment.
19. The infirmary beds at DWH were added in January 2006. (Defs.' Tr. Br. 3.) According to Defendants, this unit has greatly assisted patients returning from hospitalization. (Id.) Defendants are also now adding some 28 beds to C-Unit (dialysis patient unit), which beds are scheduled to be completed in mid-December 2006. (Id., Barbara Hladki De Bene Esse Dep. 34.) Defendants anticipate that this will benefit care in C-Unit. (Id.)
20. Defendants also report success in maintaining HIV patents [**18] in Hadix facilities at a 73 percent full suppression rate. (Hutchinson Dep. 4.) In the opinion of Dr. Craig Hutchinson, M.D. this rate compares favorably with the state's overall rate of 81 percent given that the sickest of the HIV patients are channeled to the Hadix facilities. (Id.) Plaintiffs have challenged this assertion. In particular, as noted by Plaintiffs' counsel and Dr. Hutchinson, the number does not represent prisoners housed at C-Unit and Duane Waters Hospital (areas where the sickest inmates are located). (Id. at 51.) So, it is impossible to say whether the overall rates at the Hadix facilities represent a quality healthcare response.
21. Defendants also report the results of a prolonged experiment regarding their "pill lines''--lines to deliver medicines to certain inmates. They experimented with calling inmates to the "pill line" by "pod" instead of by "block" (the larger housing unit). (Defs.' Tr. Br. 3.) This experiment did not work and complicated the ability of patients, including diabetics, to get to the food hall to eat their meals. (Id.) They then tried calling inmates two "pods" at a time to the pill line, and found that this approach [**19] was far better. (Id. at 4.) They now plan to physically modify the pill delivery facilities to allow more inmates to line up inside (out of the inclement weather). 8 (Id.) There was no plan, however, to speed delivery by use of more dispensing lines. The reason this ready solution was not proposed is obvious from the record as explained below: Defendants are grossly under-staffed for nursing care. (See also Debbie Roth Dep. 67-68.)
FOOTNOTES
8 This is a significant issue because infirm patients, when made to wait extended periods of time in the cold, will (out of concern for self-preservation) be discouraged from timely receiving and using life-saving medicines.
22. Another bit of news qualifies as both a fiasco and a belated success. The fiasco part of the story began on May 31, 2006 when Dr. Robert Cohen, M.D., the medical monitor, was visiting the Hadix facilities for a routine inspection. (Pls.' Ex. 5(B) at bates no. 322330; Trial Testimony ("T.T."), vol. III, 584.) Prisoners then informed him [**20] that medication refills due since May 26, 2006 had not been filed. According to Dr. Cohen, nothing was being done to address the debacle because when the pharmacy computer system was checked, it reported the unfilled orders as filled. (Id.) Dr. Cohen determined that this problem was not exactly recent in that it affected some prescription refills as early as May 19, 2006. (Id.) He also reported that as of the morning of June 1, 2006 pharmacy staff was, after deliberation, making no efforts to cure the problem. (Id.) The cause of the delay was the loss of pharmacy staff (retirement of a pharmacist), [*784] a failure of the SERAPIS computer system, and the delayed implementation of a new private pharmacy system for chronic medications. (Id.) Some effort was, however, being made by health care staff to fill some prescriptions through the local Walgreen's pharmacy, though "no rapid effective solution to this critical problem had been formulated or implemented." (Id.)
23. Based on Dr. Cohen's discussions with senior staff on the afternoon of June 1, 2006, he requested that the new outside remote vendor (PharmaCorr, Inc.) attempt to provide early and emergency refills of [**21] the chronic care medications. (Id.) Because of the grave concern and the life-saving nature of the medicines involved. Dr. Cohen asked that daily reports be provided to help him and Department staff ascertain that all refills were being provided and the extent of the delays. (Id. at 322329-322331.) Dr. Pramsteller has shared these concerns in his testimony that certain chronic medications (e.g., cardiac medications, HIV medications, etc.) cannot be interrupted without creating "a big problem" (i.e., predictable bad outcomes). (See Pramsteller De Bene Esse Dep. 23.)
24. These events later caused the depositions of the Jackson Medical Complex Director of Nursing, Debbie L. Roth, and the Jackson Medical Complex Administrator, Barbara Hladki, to be taken. Ms. Hladki was deposed on September 21, 2006. Ms. Roth was deposed on September 29, 2006. As of the dates of their depositions, they were not fully aware of the crucial role that Dr. Cohen had played in restoring pharmacy services to many prisoners. (Hladki Sept. 21, 2006 Dep. at 48-50; Roth Dep. 24-28.) They were also not too keen to give Dr. Cohen credit for acting emergently until confronted with the [**22] timing of his correspondence and the sequence of the events. (Id.)
25. The happy part of this fiasco was the early recruitment of PharmaCorr. This was happy for a variety of reasons. First of all, the Court has every reason to believe that PharmaCorr will function like other reliable commercial remote pharmacy services--fill and place orders consistent with the standards of care in the community. That is, the prescriptions will be regularly filled by PharmaCorr staff with computer programs used to ensure that orders are provided timely and the ordered . prescriptions are not contra-indicated either by patient health or drug interactions. Indeed, Barbara Hladki has already testified that her initial experience with PharmaCorr has been one which has improved automatic refills of chronically needed medicines. (Hladki Sept. 21, 2006 Dep. 31.)
26. Such improvement, though, is not without some complications in that Defendants do not anticipate that PharmaCorr will be connected to the SERAPIS medical records system until middle to late January 2007. (Defs.' Tr. Br. 2, 15.) Until then, Defendants cannot fully insure that pharmacy care meets community standards. Furthermore, Dr. [**23] Cohen expressed reservations at the time of hearing that the system had not yet obtained the functionality necessary to alert care providers about chronic medication orders requiring automatic renewal, which is an essential part of an operative pharmacy system. (T.T., vol. III, 585.)
27. Returning to the fiasco category, a brief comment is warranted as to the case of P.H. P.H. died of complications of treatable hyperthyroidism after his care was neglected for over a year because Defendants perennially ignored both his need for medical care and the care for paranoia which was causing him to refuse medical treatment. Rather than simply repeat the Court's earlier discussion of the case in its [*785] November 13, 2006 Opinion, the Court now adopts that discussion here by reference. Defendants have sought to add to that record with testimony of Bency Mathai, M.D., the physician who was responsible (together with the mental health team) for sending the paper work to Lansing to seek probate court appointment of a medical guardian to approve care on P.H. 's behalf. (Mathai De Bene Esse Dep. 7-16.) Dr. Mathai's account makes clear (consistent with Dr. Cohen's previous account) that she acted [**24] promptly and in the best interest of P.H. However, this testimony does nothing to excuse any subsequent delay caused by others in Lansing who received the paper work. (Id.) Nor does such testimony attempt to excuse or defend the very prolonged delay in medical treatment and psychological treatment caused by other providers that occurred prior to Dr. Mathai's consultation with P.H. The Court understands that the guardianship proceedings were intended to expedite treatment, but those proceedings did not begin until P.H. had been effectively delivered to the probate court system on the precipice of death.
28. The other certain fiasco that Dr. Cohen "discovered" during a routine visit was the August 6, 2006 death of T.S. This death was reported to the Court by letter of August 14, 2006. (Dkt. No. 2088.) The Court has already commented extensively upon that death and the grossly defective medical and mental health care which promoted it. (See Op. of Nov. 13, 2006.) Rather than repeat those words again, the Court adopts them here by reference with two brief additions. The first is due to the recently released autopsy of T.S., which the parties have presented by Stipulation to [**25] become part of the evidentiary record. (Stip. of Nov. 17, 2006; attach. A & Order of Nov. 21, 2006 granting Stip.) The Autopsy Report, which was based in part on a Toxicology Report recently completed, gave the cause of death (consistent with Dr. Walden's prior opinion) as complications of hyperthermia and dehydration. (Id.) The complications likely caused an electrolyte imbalance that not irregularly causes heart arrhythmia and failure. (Id.)
29. Second, in advance of T.S.'s death, the Department of Corrections had announced a "case management" system to monitor medically high-risk inmates in administrative segregation. (Defs.' Tr. Br. 4.) As Defendants put it, that system "is not fool proof." (Id.) "Fool" is the operative word in that sentence, as applied to all care T.S. received prior to his death, including from custody, medical staff and psychological staff. Since the death of T.S., Defendants have taken steps to communicate a need for custody staff, medical staff and mental health staff to share information to protect patient welfare. (Defs.' Tr. Br. 4 & Ex. B.) At the same time, however, this effort must be conducted consistent with standards of medical confidentiality.
[**26] 30. Defendants have also made a case management effort which is directed to prevent the lapse and failure of services in critical cases (e.g., cancer treatment, cardiac treatment, etc.). (Id.) It is not explained how this system will reliably function, however, when many of the impediments which has caused a lack of service in the past (failure of transportation, unavailable specialists and indifferent and overworked providers) continue unabated. 9
FOOTNOTES
9 (See also B. Mathai Dep. 60-62, commenting on the administrative segregation health "vetting" process. Interestingly, Dr. Mathai speculated that custody officers would not have listened to physicians' orders regarding the custodial treatment of T.S. If this is true, then the entire system is doomed to failure.)
31. Defendants have announced in their Trial Brief another recent attempt to [*786] study and reform their health care efforts. Exhibit C to the Trial Brief is a Request for Proposal--meaning that Defendants were seeking a bid as to a two-phase [**27] study of their health care system, with phase one to be completed by April 1, 2007 and phase two to be completed six months later. Defendants represent that they intend to employ the National Commission on Correctional Health Care (and any subcontractor it selects) to perform such study. (Defs.' Tr. Br. 5 & Ex. C.) At this point, it would be speculative to predict either any success or improvement as a consequence of a distant study, particularly when such studies in the past have only served to cut timber and line file drawers.
E. The Specialty Care Debacle Continued
32. Perhaps the most remarkable testimony the Court received at the last hearing involved the dialogue between Dr. Pramsteller, the Michigan Department of Corrections Medical Director, and Dr. Cohen, the medical monitor. Both were curious to know whether the rather tentative remedy in their Plan to fix specialty care delays, monthly reporting to the Court of delay numbers, had resulted in any improvement. The sheer numbers provided established that 30 to 40 percent of the specialty care was being provided outside of the time deemed medically necessary. (T.T., vol. III, 589.) Dr. Pramsteller and Dr. Cohen, [**28] in order to assess the harm of such delay, randomly picked six cases of delayed specialty care from a list of such cases. (Id. at 589, 593.) In two of those cases, the delay did not threaten any imminent harm, though in one of those cases it may have caused prolonged pain. (Id. at 589-90.) In the remaining four cases, the delay was presenting the prospect of unnecessary death and grossly unnecessary suffering. In the case of D.R., a patient with blood in the urine, it took medical staff 40 days to perform testing (IVP x-ray), which showed that one of his kidneys was blocked and not functioning due to a kidney stone, and his treatment was further delayed for several weeks after the test was performed. (Id. at 590-91.)
33. Another patient C.W.S., a 50-year-old with coronary artery disease, had a stent in his left main coronary artery, the most dangerous place for blockage. (Id. at 591.) He had been using nitroglycerin and, because of increasing frequency of chest pain with activity and at rest, had increased nitroglycerin usage to several times per day. (Id.) He had chest pain radiating to his neck and arm with heavy substernal pressure. (Id.) This is the [**29] basic medical school definition of an impending heart attack. (Id.) Defendants' response was to schedule a 30-day consult. (Id.) C.W.S. had needed the consult immediately. (Id. at 591-92.) When he was finally seen, after more than 30 days, testing showed a 70-percent blockage of the left coronary artery with stenosis in the right coronary artery as well. In Dr. Cohen's opinion, the patient was fortunate to have survived the prolonged delay in treatment. (Id. at 593.) The patient was referred directly by the cardiologist for emergency coronary artery bypass surgery. At the time of the review by Drs. Cohen and Pramstaller, the surgery had taken place and the patient had returned to JMF. Remarkably, on the day of their review, physician staff at JMF were unaware that C.W.S. had surgery, and were not aware that he had returned to their facility.
34. J.F. was the third adverse delay case. He was a patient with end stage renal disease who was complaining about rectal bleeding and displayed two abnormal polyps during a barium enema on June 21, 2005. (Id.) He was scheduled for a colonoscopy in two months, but, according to the chart, custody cancelled his appointment. [**30] [*787] (Id.) He was then not seen again for the condition until the delay was discovered by medical staff on April 21, 2006 and his colonoscopy appointment rescheduled for July 24, 2006. (Id.) No attempt was made by providers to schedule the case emergently notwithstanding the past delay and real prospect of cancer. (Id. at 594.) Eighteen days after the colonoscopy took place, on August 11, 2006, the results were reported as high grade dysplasia, an abnormal, non-cancerous but possibly pre-cancerous lesion. (Id.) No follow-up was ordered despite the medical risk. (Id.)
35. D.U. was the last adverse case studied. D.U. had complained of a mole which was increasing in size on his back on June 25, 2005. He kited repeatedly and was then seen on July 8, 2005 and diagnosed with a "melanocystic skin mole" which the doctor (who no longer works for Defendants) determined should be "watched closely," but no biopsy was ordered. (Id. at 595.) Follow-up was ordered in two months, at which time (September 8, 2005) the doctor determined that the "mole" should be surgically removed within two weeks. As of October 10, 2005, this had not occurred. The patient saw a nurse on that [**31] date and complained that the growth had persisted for a long period of time, and he was told to use a hot compress. (Id.) An October 14, 2005 appointment to remove the "mole" was cancelled by a medical provider and rescheduled for October 21, 2005, which also did not occur. (Id.) The patient was seen by a physician assistant ("PA") and told the PA that he had family history of cancer. (Id.) This resulted in another request for surgical excision which was ignored. (Id.)
36. By January 20, 2006, the "mole" was seen by medical staff and was then a black-red mass measuring .5 by .7 inches square in the interscapular area with irregular margins. It was noted to be bleeding. On January 30, a physician performed a wide excision of the lesion and ordered follow-up care and testing. (Id. at 596.) A February 7, 2006 pathology report showed malignant melanoma. Thereafter, Dr. Fatu (staff physician) attempted to obtain the patient's immediate referral to the University of Michigan melanoma clinic for cancer treatment, but the attempt was somehow administratively derailed while the patient was sent to an oncologist instead of a melanoma treatment center. (Id.) The required [**32] urgent standard of care--a sentinel node biopsy--which is used to determined if the metastatic cancer has spread to the lymph system was not performed until April 12, 2006 (another gross and inexcusable delay). That biopsy did show that the cancer had spread while the patient was not receiving effective cancer therapy. (Id.)
37. As noted above, these cases are remarkable both because they were randomly selected from a list of delayed referrals and because the system of monthly reports instituted in January 2006 provided full notice to Defendants of the dangerous treatment delays. The monthly specialty reports (Pls.' Ex. 88) themselves are interesting because they show relevant data as to specialty care. Dr. Pramsteller has testified that he regularly evaluates similar data, especially as to diseases such as heart disease, cancer, diabetes and dialysis patients--which diseases have regular fatal outcomes and use significant economic resources. (Pramsteller De Bene Esse Dep. 35-36.) He further commented that the Hadix facilities require a large portion of the state medical resources because of the population of sick inmates housed there. (Id.) He classified cancer [**33] and heart disease as the two most expensive medical conditions. (Id.)
38. To take January 2006 and cancer as an example, the January 2006 report [*788] showed 48 hematology/oncology patients were seen at DWH in January and another 25 were "pending" to be seen at DWH. (Pls.' Ex.88 at bates no. 321678.) Offsite, nine hematology/oncology patients were seen and ten were pending. (Id.) Although the report listed two off-site cancer treatment centers, the report showed that no care was authorized as to those centers. (Id.) Later versions of the report did not even list those centers. The February 2006 data for onsite specialty care in this category showed 12 patients were seen, two were rescheduled, 13 were pending and five were past pending. (Id. at bates no. 321739.) As to offsite "radiation/oncology," five were seen, ten were pending and three were past pending. (Id. at bates no. 321740.) The March 2006 data for onsite specialty care in this category showed 16 patients seen, one rescheduled, 14 pending and seven past pending. (Id. at bates no. 321789.) The offsite numbers were 12 patients seen, 11 pending and six past pending. (Id. at bates no.321791.) The April [**34] 2006 onsite numbers were 8 patients seen, two rescheduled, seven pending and six past pending. (Id. at bates no. 321846.) The April offsite numbers were 12 seen and seven pending with none past pending. (Id. at bates no. 321847.) The May onsite numbers were three seen, seven pending and three past pending. (Id. at bates no. 321902.) The May offsite numbers were nine seen, two rescheduled, six pending and two past pending. (Id. at bates no. 321903.)
39. To skip to the later months, the summary sheets are not informative as to cancer treatment because CMS shifted to an "automatic" approval process for cancer referrals to facilitate treatment. (Hutchinson Dep. 98-99.) This was done because, "We knew that simply the time required for even expeditious handling of all the pieces of paper . . . would not deliver some of the cancer care within the time frames that needed to occur." (Id.) Although Dr. Hutchinson proclaims that CMS has caused a "fix" to the system, both the above examples, the statistics and the brute facts do not bear out that blithe conclusion. For the month of August, which lacks the summary sheet, the "patients seen" report still shows that many [**35] cancer patients were seen beyond the prescribed treatment parameters. For example, patient W.D. had a diagnosis of tongue cancer. (Pls.' Ex. 88 at bates no. 322119.) He was to be seen in ten days, but was seen in 43 days because of "first available specialist schedule . . . ." (Id.) Similarly, M.W. had lung cancer and was to be seen in 21 days; he was seen in 27 days and no explanation was given for the delay. (Id.) Patient R.C. had T-Cell Lymphoma and was to be seen in 14 days; he was seen in 21 days with no explanation for the delay. (Id. ) Patient X.W. also received delayed treatment for cancer of the esophagus. (Id.) Although some of these delays may seem inconsequential in length, the thorny problem for cancer patients is that their course of treatment (from initial symptoms, to diagnosis, to excision of the cancer (when possible) and to multiple follow-up procedures (radiation and chemotherapy)) requires multiple rounds of waiting and scheduling and potential cancellation due to illness, transport problems, doctor unavailability, etc. This scenario, in the best of circumstances, leaves the inmate fighting for life amidst both the intended and unintended, but [**36] equally profound, cords of custody.
40. Defendants themselves admit that they are unsatisfied with their own progress in improving the specialty referral process. Here is what defense counsel wrote:
Even with the Defendants' November 15, 2006 specialty care report, based on October data, the percentage of DWHC specialty care requests reported as "excess" or "late" was twice that of the [*789] JMF and SMT facilities. While this last report is an improvement from the reports early this year, more work needs to be done.
(Defs.' Tr.Br. 11.)
F. More Medical Malfeasance
41. Other negative cases were reported by Dr. Jerry Walden, M.D., Plaintiffs' medical expert. Those cases were discovered by Dr. Walden as a product of 13 days of medical tour and inspection by by Dr. Walden in September and October 2005 and April and May 2006. (Pls.' Ex. 1B at 1.) Dr. Walden summarized these cases in his Report of July 10, 2006. (Id) 10 Here are some of the low lights of what Dr. Walden found.
FOOTNOTES
10 Plaintiffs have moved, post-hearing, to formally admit Plaintiffs' Exhibits 1A and 1B, which were discussed at length, without objection, in the hearing testimony, but not formally admitted. (Pls.' Tr. Br. 4 n.2.) This request will be granted. In so doing, the Court also formally receives all of the post-hearing submissions of the parties (de bene esse depositions and exhibits), expressly including Plaintiffs' Exhibit 5 (compilation of reports and documents pertinent to medical care), Plaintiffs' Attachment 1 to Trial Brief (a clarifying appendix meant to explain the prisoner medical references). Plaintiffs' Proffer (Dkt. No. 2218), the T.S. autopsy and toxicology reports, and all de bene esse depositions and documents filed by Defendants.
Should the Court of Appeals have cause to review this record later, it is also advised to consult the prisoner key presented during hearing. The prisoner key presented at hearing did contain some slight errors, which was resolved by revision of the key. (See Pls.' Tr. Br. 4 n.2.)
[**37] 42. Regarding cancer treatment, Dr. Walden had concern about four patient files which he did not have access to for review: patients 105, 106, 107 and 108. (Id. at 27.) He was, however, able to review the charts of four other prisoners which showed remarkable indifference to patient well-being. In patient number 109, the patient was seen as a follow-up for blood in the urine in February 2004. (Id.) His family history showed cancer on both sides of his family. (Id.) Thereafter, he regularly saw physicians because he could not sleep at night due to bladder pressure while he continued to have blood in his urine. (Id.) These many visits were treated as either over-active bladder or bladder infection. (Id.) Finally, on August 9, 2004, a physician noted the possibility of bladder malignancy and testing was done. (Id.) The testing was inconclusive while the patient continued to complain of pain and had persistent blood in the urine. (Id. at 27-28.) After continued complaints, he was seen by urology, who scheduled him for cystocopy and IVP testing. (Id.) The testing was eventually performed on October 18, 2004 and on October 19, 2004, the test results showed [**38] a 6 centimeter tumor on the bladder. (Id.) The tumor, once discovered, was too large to permit transurethral resection of the tumor (the less invasive technique) so in March 2005, surgeons removed the patient's bladder and created a new bladder from his bowel. (Id.) As of May 2006, the patient had lost over 50 pounds. (Id.) The patient also complained that after the bladder surgery, doctors had difficulty reaching a urologist to treat his bladder symptoms and nearly caused a serious medical complication. (Id.)
43. Patient 110 was another like case. He had recurrent bladder cancer and blood in the urine was ignored for a prolonged period. (Id.) It took some six months between the time that blood in the urine was noted and a urologist appointment was eventually completed. (Id.)
44. Patient 111 was diagnosed and treated for metastatic cancer. (Id.) Although he was treated, he was denied pain medication over a two month period, and this denial caused the cancellation of one of his cancer appointments. (Id.)
[*790] 45. Patient 112 was another patient who was treated for malignant rectal cancer. (Id.) According to Dr. Walden's Report, the care [**39] was delayed by some five years because cancer care was not given soon after he arrived in custody. (Id.) A colostomy was eventually performed. (Id.) Dr.Walden is of the opinion that patient 112 will likely die of such cancer. (Id.)
46. As for cardiology, Dr. Walden's Report likewise discusses approximately 20 problematic patient records from 2005. (Id. at 14-17, 21-22.) He found a like number of problematic cases for 2006. (Id. at 17-21.) A few selected cases are cited now as exemplary of the kinds of indifferent care delivered at the Hadix facilities.
47. Patient 44 had extreme hyperlipidemia. (Id. at 17.) He had triglyceride levels 10 times normal levels and cholesterol of 444. (Id.) He was not seen on an appointment for repeat testing. (Id.) When he was seen next, an EKG was ordered and showed a septal infarction with possible inferior ischemia. (Id.) The care providers did not treat either the hyperlipidemia or the unstable cardiac condition. (Id.)
48. Patient 48 had hypertension that was over-treated with multiple medications. (Id. at 18.) His blood pressure was not regularly monitored and vital signs were not being [**40] recorded in his record. (Id.) He also had bleeding in his intestinal tract that was being ignored, with no plan for either a colonoscopy or a gastroscopy. (Id.)
49. Patient 53 complained of chest pain with activity. (Id. at 20.) An EKG was performed which showed abnormal results. (Id.) At the time, the patient had a very elevated cholesterol and a history of a past catheterization and long-term tobacco and cocaine use. (Id.) No urgent care was scheduled. Dr. Walden's comment: "This man needs a stress test or an emergency room visit now." (Id.)
50. As for diabetic patients, notwithstanding the positive comments made above, Dr. Walden's report noted some continued problems in the treatment of hypoglycemia, brittle diabetics and other diabetics with uncontrolled treatment regimes. Dr. Walden devotes some ten pages of his Report to such cases. (Id. at 5-14.) The cases noted below are representative of serious Hadix treatment failures regarding treatment of hypoglycemia. Indeed, Dr. Hutchinson similarly testified that to his knowledge, there were three or four patient deaths at Hadix facilities due to complication of hypoglycemia (which is treatable [**41] if promptly recognized and treated) within the last two years. (Hutchinson Dep. 51.)
51. Dr. Walden's overall impression was, "I am still amazed that the need to prevent hypoglycemia hasn't been more effectively addressed by the administration and that CMS has not focused on this problem." (Pls. 'Ex. 1B at 5.) Dr. Walden noted some death cases due to hypoglycemia and further noted that although the policy is to treat all patients with blood sugar readings of less 50 mg/dl with intravenous glucose, this does not regularly occur. (Id.)
52. Patient 4 died of hypoglycemia. (Id. at 5-6.) He had a severe hypoglycemic reaction without any referral to a physician. (Id.) He later died of complications of a second instance of severe hypoglycemia. (Id.)
53. Patient 20 is a paraplegic who is wheelchair-bound. (Id. at 11.) His care was complicated by the fact that custody transport to specialist appointments sometimes left him unable to eat his meals and, thus, prone to hypoglycemia. (Id.)
54. Patient 22 had severe hypoglycemia on March 12, 2006 and was unconscious. (Id. at 12.) He was treated with IV glucose. (Id.) However, post-reaction [*791] adjustment [**42] to his regime did not occur consistent with community medical standards. (Id.)
55. Patient 25 is a dialysis patient with a recent history of severe hypoglycemia. (Id.) He was given a Glucagon injection (a chemical that induces the liver to produce glucose) for hypoglycemia on March 28, 2006. (Id.) This followed several earlier incidents of serious hypoglycemia. (Id.) On March 20, 2006 his blood glucose readings were 26, 31, 53 and 76 mg/dl, respectively, and he received two Glucagon injections. (Id.) At 11:55 p.m., staff was called to his cell when he was unresponsive and his blood sugar was 39 mg/dl; he then received his third Glucagon injection of the day. (Id.) He did not have successful follow-up care and Dr. Walden (who had warned Defendants) noted that his care had not improved as of June 14 (since he had other reactions on or about June 12). (Id.) This is clearly an example of a patient needing urgent specialist care whose needs have been under-served. (Id.)
56. Other serious patient care/treatment problems were noted in the following areas: access to health care (id. at 22-44); medical record deficiencies (id. at 24-25); treatment [**43] of methicillin-resistant staphlycoccus infections (id. at 25-27); dialysis care deficiencies (id. at 29-35); surgical care (id. at 35-36); custody treatment (id. at 36-39); nursing issues (id. at 39-41); and medication problems (id. at 41-42). Also remarkable in his Report are prolonged discussions of cases in which CMS delayed patient care and other cases in which delayed and/or negligent care were a factor in patient deaths. (Id. at 42-64.)
G. How Much to Make of a Bunch of Deaths
57. One of the issues repeated in the briefing and argument is the statistical question of how to treat the individual gross treatment failures. Defense counsel argues in part that the treatment failures do not show deliberate indifference to the "class as a whole." (Defs.' Tr. Br. 6.) The basis for this argument is given as Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996), a case in which the Supreme Court repelled a request for class-wide relief as to First Amendment access violations because only two actual deprivations to class members were shown and the "constitutional violation has not been shown to be systemwide . . . ." Lewis, 518 U.S. at 360.
[**44] 58. When the Supreme Court made that announcement, it most assuredly did not mean that every class member must be a victim of a violation for system-wide relief to stand. What it did mean was that occasional violations which are not rooted in systemic causes, do not warrant system-wide relief. As an example, the number of inmates with untreated cancer at any given month is small as a percentage of the total prison population (between 10 to 50 at the Hadix facilities as an example). However, the systemic failure to timely treat those persons is clear from the statistics given that there was a 30 to 40 percent delay rate past the physician assigned deadlines for timely care of prisoners generally and a similar rate of delay for cancer patients. Furthermore, the rate of non-care and delayed care is even higher given that the record reflects that physicians were often not protective enough of the right to treatment in assigning treatment dates, and often failed to take the initial diagnostic steps necessary to promptly diagnose cancer. Many deaths have occurred because of such systemic failures, and these failures have occurred in regular treatment patterns (e.g., deaths due [**45] to delinquent treatment of hypoglycemia, delinquent treatment of dialysis patients, etc.)
[*792] 59. The testimony of Dr. Creekmore, explained at length in the Court's November 13, 2006 Opinion and adopted here by reference, likewise supports a conclusion that Defendants' malfeasance was systemic. This is particularly so given the history of a facility which has not met constitutional standards repeatedly. Defendants may wish that by simply pointing out an obvious red herring--that most people are not sick most of the time regardless of their medical treatment--they may wish away their involvement in this suit. It is not so. Wake up Dorothy. You are not in Kansas anymore. 11
FOOTNOTES
11 Apologies to Noel Langley, lead author of the 1939 screenplay, The Wizard of Oz.
H. Work Without Workers
60. Apart from the individual case failures explained above, even Defendants' staff has testified that staffing and related facility failures are making the job of delivering timely and necessary medical care untenable. [**46] Debbie Roth, the Director of Nursing, testified that she had current staff vacancies (which were being addressed by temporarily using nurses from other facilities) and also that even if all vacancies were filled, the full staff complement would have difficulty in performing assigned work due to the sheer volume and complexity of the work. "If I was fully staffed in all my facilities, it would still be difficult for the nurses to keep up with the workload. . . . We need more allotted staff positions, and we need more staff, both." (Roth Dep. 50.)
61. Regarding the SMT facility. Roth testified that she needed "two additional R.N.S for the day shift, two on the afternoon shift and one on the night shift." (Id. at 51.) She also testified that additional staff was necessary to cover vacation and sick leave for regular staff. (Id.) Regarding JMF, she testified that three additional staff positions were necessary and a third night-shift nurse would also be beneficial. (Id. at 52.) Similarly, she testified that RGC needed three additional staff nurses, though not a night-time nurse given that RGC involves short-term prisoner stays, shorter daily hours of operation, and a smaller [**47] percentage of very sick inmates. (Id. at 52-53.)
62. These opinions were shared by Dr Cohen both about nursing and physician staffing. Dr. Cohen testified:
There have been critical nursing and physician shortages at the Hadix facilities over the last six months. During a three month period, [in JMF] there were only two physicians and one physician assistant on limited duty providing care. This situation exist[ed] almost through September and resulted in extreme delays in physician review of abnormal laboratory studies, especially consultations and their ability to see nurse referrals from sick call and kite evaluation. The inadequate physician staffing compromises the ability of nurses to refer patients for M.D. evaluation and schedules were so packed in September that physicians at JMF could not follow-up on their own patients because their schedules were so filled up for weeks . . . ahead.
Correctional Medical Services has been aware for a long time that they have been unsuccessful [in] recruiting and retaining physicians in the Hadix facilities, and this is documented in the minutes between CMS and MDOC, but they have not taken yet the necessary [**48] action to provide direct employment, including benefits, accrued vacations, and health insurance to the vast majority of their physician employees. If they do so, they would become much more competitive and would have access to a large pool of board certified physicians whose immigration status requires them to [*793] have full-time jobs in order to remain in this country.
Nursing staffing in the Hadix facilities has been in disarray. The fact that in September just as these hearings were approaching the nursing staff was three days behind in their evaluation of kites is due to the inadequate number of nursing staff?..
(T.T., vol. III, 580-82.)
63. Dr. Cohen's comments about the kite system are important to understand. The kite system is utilized by prisoners to communicate important requests for services, advice and medicine. Typical kites might ask for a prescription refill, indicate that a prisoner needs to see a physician regarding an ailment or ask for clarification regarding medical advice or a treatment regime for the prisoner. When these requests go unanswered, particularly as to a chronically-ill population dependent on daily medications and treatment advice, [**49] they create the real possibility of patient injury and death. Dr. Cohen discovered during one of his September tours that JMF nursing staff were three days behind in responding to kites and notified MDOC administrative staff. Debbie Roth, following up on Dr. Cohen's investigation, received confirmation from a substitute RN (one drafted from another facility) that there was a three-day-old stack of kites to be reviewed. (Roth Dep. 48.) Roth then drafted still other staff, two RNS from other facilities, to address the three-day backlog of kites at JMF, but could not reduce staffing at other facilities for any prolonged period due to the needs at those facilities. (Id. at 48-50.) In other words, the conditions that caused this problem have persisted and make repetition of this and other critical problems likely.
64. A related staffing issue is the use of LPNs almost exclusively at the Hadix facilities to meet required staffing. Fifty percent of the RN staffing is provided by contract staffing. (Roth Dep. 70.) Of that group, 60 percent are LPNs, even though they are assigned to replace RNs. (Id. at 55.) This has resulted in the use of LPNs to take action on prison kites, [**50] actions which they are not qualified to perform in some cases. (Id.) This situation contradicts Defendants' previous representations that prisoner kites were being reviewed exclusively by RNs. (See 2002 Findings at P 89.) The medication kites that the LPNs review typically may have symptom components (e.g., I need more inhalers because I used them too quickly).
65. Craig Hutchinson, M.D., of CMS had a somewhat less dire opinion about the staffing inadequacies. He viewed the Hadix facilities as 92-93 percent fully staffed though "I haven't done an accounting of the hours . . . ." (Hutchinson Dep. 23.) In Hutchinson's opinion, the only physician shortage was the failure to obtain one physician for RGC (who needed to be replaced due to recent retirement), Defs.' Tr. Br. 7, and additional physician hours for the dialysis unit. (Hutchinson Dep. 23.) He explained that this shortage was due to the fact that the hiring was to be done by Dr. Deon Middlebrook (the nephrologist who provides hours at the dialysis unit and who works for CMS as an independent contractor with his physician employees). (Hutchinson Dep. 17, 23-26.) More particularly, he explained that the unfilled [**51] physician hours were due to the fact that one of Dr. Middlebrook's physician hires dropped out after he attended CMS orientation. (Id.) According to Dr. Hutchinson, Dr. Middlebrook is still attempting to hire for those hours. (Id.) Defendants' briefing admits that the dialysis unit is understaffed, but argues that the under-staffing does not jeopardize patient health and asks for an opportunity to present supporting testimony at hearing in January. (Defs.' Tr. Br. 8.) Defendants' briefing does not explicitly comment on the absence of nurse staffing, [*794] presumably because Plaintiffs' motion had specifically requested additional physician staffing only. (See Defs.' Tr. Br. 5-6.)
66. Defendants have submitted the De Bene Esse Deposition of Barbara Hladki on the subject of their hiring plans. According to her testimony, she has received tentative administrative approval for two additional LPNs and a third position (either a nurse or pharmacy technician) for JMF. (Hladki De Bene Esse Dep. at 33-34.) Hladki speculated that the "spending plan" would be approved in committee the next week and then she would be authorized to seek the new staff in January. (Id.) Hladki [**52] explained that it would take another two weeks to one month to fill the positions, but she did not explain in her answer why past openings had not been readily filled. (Id.) Indeed, defense counsel in the briefing accuses the Court and the media of making these positions difficult to fill, and says that one-half of recent applicants have cancelled interviews. (Defs.' Tr. Br. 7.) As of November 2, 2006, JMF had five nursing vacancies out of 13 allocated positions. (Hladki De Bene Esse Dep. 36.) RGC had one vacancy out of seven allocated positions. (Id. at 37.) Parnall had one vacancy out of seven allocated positions. (Id.)
67. Interestingly, the testimony of Dr. Hutchinson and Barbara Hladki assumed the staffing of JMF was adequate even if not compliant with the Court-ordered Plan. The Plan set the minimum staff levels for JMF at four physicians and one mid-level provider. (Plan at 20.) This staffing was in addition to other additional staff for other parts of the Hadix facilities, including new staffing of the dialysis unit. (Plan at 19-20.) Defendants admit that they have not complied with this requirement--having employed only three physicians and one physician's [**53] assistant. (Defs.' Resp., Dkt. No. 2219, at 10.) They deem this as a sufficiently good-faith response even though no permission to deviate from the Plan was ever sought or extended.
I. Workers Without Computers
68. One important side alley discussed during the recent hearing involves the implementation of the SERAPIS system--which was a requirement of the Preliminary Injunction. As specified above, the Preliminary Injunction required the expansion of SERAPIS to lab reports, the pharmacy and DWH, but did not provide an exact deadline for completion. This requirement was not an idle one. Since a landmark report of the Institute of Medicine of the National Academy of Sciences, the medical profession generally has recognized that an electronic medical record is the preferred method of recording keeping for health care in order to reduce errors associated with handwriting, prevent medication errors, expedite service and facilitate stable and remote access to patient records. See Institute of Medicine, The Computer-Based Patient Record: An Essential Technology for Health Care (National Academy Press 1991); see also Institute of Medicine, To Err is Human: Building [**54] a Safer Health System (National Academy Press 2000) (discussing cost in lives of medical error and strategies for prevention). As Dr. Cohen put it in his testimony, "You have to . . . do it, otherwise you end up with the charts which are unreadable and have bad effects" (T.T., vol. III, at 586.) Another huge advantage of the technology is that it allows one to rapidly search a patient record for pertinent information. (Pramsteller De Bene Esse Dep. 13.)
69. Furthermore, it appears that Defendants agree that the expansion of SERAPIS or a SERAPIS compatible system to all parts of the Hadix facilities, including records for in-patient care at C-Unit and DWH, is an important goal which must be [*795] met soon. (See Greifinger T.T., vol. III, 468-71) It is possible to use SERAPIS for all ambulatory care, lab studies and prescriptions, but the system is not configured for in-patient care at C-Unit or DWH because it does not accommodate nursing notes. (Id.) Defendants are presently working at finding a SERAPIS-compatible system which can be used for in-patient care and which has connectivity to Foote Hospital, the Jackson public hospital where prisoners are often transferred [**55] when care is not appropriate or available at DWH. (Id) According to the De Bene Esse Deposition of Richard Russell, the process of working toward an in-patient electronic record envisions making such record compatible with regional electronic medical records (such as those maintained by the Department of Community Health and the Veterans Administration) and is well underway. (Russell De Bene Esse Dep. 29-36.)
70. Defendants were late to the game in both their overall program and in instituting the Court-ordered expansion, beginning some of that work only this fall. (Hladki De Bene Esse Dep. 38.) Nevertheless, Hladki promises that implementation of SERAPIS at DWH and C-Unit regarding lab orders and prescriptions (but not as to in-patient care records) will be completed by January 2007. (Id. at 9-10.) Defendants also are presently working to ensure that PharmaCorr will have connectivity with SERAPIS by the end of January 2007. No promises were made about the participation of certain specialty care providers, such as Dr. Middlebrook, who have not used SERAPIS, (see Pramsteller De Bene Esse Dep. 40.), and whose future participation is likely to be limited [**56] to instructing others to use the system on their behalf. Older specialists who provide valuable services (e.g., care of a large number of dialysis patients) must be handled with some care, however, to coax them into the system without alienating their services. Such a loss might be catastrophic for patients. 12
FOOTNOTES
12 Plaintiffs are none too complimentary of Dr. Middlebrook and their concern is shared to some degree by Defendants' Medical Director, Dr. Pramsteller. (See Pramsteller De Bene Esse Dep. 37.) With that said, since Dr. Middlebrook and his practice group are providing extensive services to the dialysis unit, and since it may be very difficult to replace those services and the loss of the services even temporarily might cause patient deaths, care must be given to that relationship.
II. CONCLUSIONS OF LAW
A. LEGAL STANDARDS
1. Contempt Standards
71. The standards for adjudicating civil contempt were given by the Sixth Circuit Court of Appeals in Glover v. Johnson, 138 F.3d 229 (6th Cir. 1998) [**57] as follows:
In a civil contempt proceeding, the petitioner must prove by clear and convincing evidence that the respondent violated the courts prior order.
A litigant may be held in contempt if his adversary shows by clear and convincing evidence that "he violated a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court's order." Id. at 707 (citation omitted). It is the petitioners burden-here, the plaintiffs-to make a prima facie showing of a violation, and it is then the responding party's burden to prove an inability to comply. See Huber v. Marine Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995). This court has explained:
The test is not whether defendants made a good faith effort at compliance but whether "the defendants took all reasonable steps within their power to comply with the court's order." [*796] Good faith is not a defense to civil contempt. Conversely, impossibility would be a defense to contempt, but the Department had the burden of proving impossibility, and that burden is difficult to meet. Although diligence is relevant to the question of ability [**58] to comply, the Department's evidence of diligence alone does not satisfy that burden." Inability to comply would be a defense -- but defendants would be expected -- to show this categorically and in detail.' "
Glover, 138 F.3d at 244 (quoting Glover v. Johnson, 934 F.2d 703, 708 (6th Cir. 1991) (internal citations omitted)).
72. As noted above, the exercise of contempt powers is a dire exercise and one requiring all manner of fair and due process to respondents. The exercise of contempt powers is also, however, a necessary part of any judicial system of courts of general jurisdiction. See Bridges v. State of Cal, 314 U.S. 252, 285, 62 S. Ct. 190, 86 L. Ed. 192 (1941) (citing United States v. Hudson, 11 U.S. 32, 34, 3 L. Ed. 259 (1812)). Without that power, courts would lose their legitimacy and watch idly as their decrees furnished only morbid entertainment to those willing to disregard them.
73. When a civil contempt finding is made, the question becomes what sanctions are sufficient but not excessive to coercive the ordered conduct. In considering civil contempt sanctions, the Court may consider such penalties as coercive imprisonment, [**59] see, e.g., Matter of Campbell, 761 F.2d 1181, 1184 (6th Cir. 1985), and coercive and conditional fines, see, e.g., United States v. Work Wear Corp., 602 F.2d 110, 116 n.14 (6th Cir. 1979); see also In re Special Proceedings, 373 F.3d 37, 46 (1st Cir. 2004); United States v. Mongelli, 2 F.3d 29 (2d Cir. 1993) (affirming coercive fines of $ 10,000 a day).
2. Eighth Amendment Standards
74. "Deliberate indifference to serious medical needs" violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The Eighth Amendment standard has both objective and subjective components. Id. Thus, to be liable, a defendant must know of and disregard an excessive risk to prisoner health or safety. Farmer, 511 U.S. at 837. However, in an injunctive case, proof of the subjective component is straightforward:
In this case, we are concerned with future conduct to correct prison conditions. If these conditions are found to be objectively unconstitutional, then that finding would also satisfy the subjective [**60] prong because the same information that would lead to the court's conclusion was available to the prison officials.
Hadix v. Johnson, 367 F.3d 513, 526 (6th Cir. 2004).
75. One of the cases cited with approval in Farmer was the Supreme Court's previous decision in Helling v. McKinney, 509 U.S. 25, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993). Helling said the following about future threats of injury:
It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Two of them were cited with approval in Rhodes v. Chapman, 452 U.S. 337, 352, n. 17, 101 S. Ct. 2392, 69 L. Ed. 2d 59 . . . (1981). Gates v. Collier, 501 F.2d 1291 (CA5 1974), held that inmates were entitled to relief under the Eighth Amendment when they proved threats to personal safety from [*797] exposed electrical wiring, deficient firefighting measures, and the mingling of inmates with serious contagious diseases with other prison inmates. Ramos v. Lamm, 639 F.2d 559, 572 (CA10 1980), [**61] stated that a prisoner need not wait until he is actually assaulted before obtaining relief.
Helling v. McKinney, 509 U.S. 25, 33-34, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993).
76. To explain this matter in the vernacular, a prisoner who receives a sentence of 2-10 years, deserves to do 2-10 years. What he does not deserve is a de facto and unauthorized death penalty at the hands of a callous and dysfunctional health care system that regularly fails to treat life-threatening illness.
3. PLRA Standards
77. As to the injunction requests, the controlling legal standards are the Eighth Amendment legal standards explained above, when combined with the PLRA injunction standards applicable under 18 U.S.C. § 3626(a)(1) in prison condition cases and the injunction standards explained below. However, the PLRA on its face and in its meaning does not apply to contempt requests. Jones'El v. Berge, 374 F.3d 541, 545 (7th Cir. 2004); Essex County Jail Annex Inmates v. Terffinger, 18 F. Supp. 2d 445, 462 (D.N.J. 1998). Section 3626(a), which was enacted as section 802(a) of the PLRA, states in pertinent part:
Prospective relief [**62] in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal Justice system caused by the relief.
18 U.S.C. § 3626(a)(1).
4. Permanent Injunction Standards
78. Since this determination represents a final adjudication of Plaintiffs' requests for injunctive relief, following the earlier Preliminary Injunction hearing, the standards require final findings as to whether Plaintiffs have clearly shown an entitlement to relief on the merits and whether an injunction is necessary to prevent irreparable harm. The following case law explains the pertinent standards.
79. In Weinberger v. Romero-Barcelo, the Supreme Court gave an able [**63] explanation of the controlling legal standards as follows:
It goes without saying that an injunction is an equitable remedy. It "is not a remedy which issues as of course," Harrisonville v. W.S. Dickey Clay Mfg. Co, 289 U.S. 334, 337-338, 53 S. Ct. 602, 77 L. Ed. 1208 . . . (1933), or "to restrain an act the injurious consequences of which are merely trifling." Consolidated Canal Co. v. Mesa Canal Co, 177 U.S. 296, 302, 20 S. Ct. 628, 44 L. Ed. 777 . . . (1900). An injunction should issue only where the intervention of a court of equity "is essential in order effectually to protect property rights against injuries otherwise irremediable." Cavanaugh v. Looney, 248 U.S. 453, 456, 39 S. Ct. 142, 63 L. Ed. 354 . . . (1919). The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies. Rondeau v. Mosinee Paper Corp, 422 U.S. 49, 61, 95 S.Ct. 2069, 2077, 45 L.Ed.2d 12 (1975); Sampson v. Murray, 415 U.S. 61, 88, [*798] 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507, 79 S.Ct. 948, 954-955, 3 L.Ed.2d 988 (1959); Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 591. [**64]
Where plaintiff and defendant present competing claims of injury, the traditional function of equity has been to arrive at a "nice adjustment and reconciliation" between the competing claims, Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 592. In such cases, the court "balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction." Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 675, 88 L.Ed. 834 (1944). "The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mold each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it" Hecht Co. v. Bowles, supra, 321 U.S., at 329, 64 S.Ct., at 592.
In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Railroad Commn. v. Pullman Co, 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941).
Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982). See also [**65] Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998); City of Parma v. Levi, 536 F.2d 133, 135 (6th Cir. 1976). As implied above, and consistent with the PLRA, injunctive relief involving matters subject to state regulation may be no broader than necessary to remedy the constitutional violation. See Knop v. Johnson, 977 F.2d 996, 1008 (6th Cir. 1992)
80. While saying so, the Supreme Court in Weinberger also explained the importance of the legal principles which give rise to equity jurisdiction:
Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. "The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.'
Weinberger, 456 U.S. at 313 (citation omitted).
81. The Court also concurs with the argument of Plaintiffs' counsel that [**66] where previous violations have been adjudicated, then a presumption of further injury inures to Plaintiffs' benefit. See Thompson v. City of Los Angeles, 885 F.2d 1439, 1449 (9th Cir. 1989); Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir. 2003); NAACP v. Duval County Sch., 273 F.3d 960, 988-89 (11th Cir. 2001). While the Court agrees with this proposition, this agreement does not in any way affect the outcome of this suit, which would be the same regardless of the presumption in light of the record.
B. CONTEMPT ANALYSIS
82. Plaintiffs have requested contempt regarding six provisions of the Plan (as adopted and approved by the later Order). 13 The non-compliance at issue concerns: (1) the requirement that Defendants [*799] enhance their mortality review by the use of outside reviewers; (2) the requirement that Defendants pursue other options to obtain autopsy results; (3) the requirement that Defendants assure there is a prompt review of all specialist reports; (4) the requirement that Defendants assure that medications and laboratory studies be entered in SERAPIS at DWH; (5) the requirement of additional physician staffing [**67] at JMF; and the (6) the failure to assure a full time equivalent nephrologist or internist for the dialysis unit. Plaintiffs ask for a finding of contempt on each issue and entry of a coercive fine.
FOOTNOTES
13 Plaintiffs made a seventh request in their moving papers, but have since withdrawn it. (Pls.' Tr. Br., Dkt. No. 2216, at 2 n.1.)
1. Mortality Review Process
83. The October 19, 2005 Preliminary Injunction required Defendants to submit a plan to accomplish various objectives, including, to "provide for assessment and medical review of all prisoner patient deaths . . . ." (Prelim. Inj. 2.) Defendants then submitted their Plan which provided: "Defendants intend to enhance their mortality review process through the use of outside professional reviewers who will provide a timely and complete review of all patient deaths . . . ." (Plan 2) (emphasis added.) On January 12, 2006, Defendants' Plan was approved by Order of the Court, with revisions not relevant to the above provision. (Order of Jan. 12, 2006 at [**68] 1)
84. As to compliance, Defendants' Revised May Compliance Report stated in pertinent part,
While Defendants have not ruled out the use of an outside agency to conduct mortality reviews, it has become apparent that prior to following through with outside reviews the Department needs to streamline the internal review process so that the review occurs closer to the event.
(Rev. May 2006 Compliance Report 2.) Barbara Hladki later wrote in August 2006 to Plaintiffs to indicate that this objective "is not being aggressively pursued at this time." (Br. in Supp. of Mot. to Show Cause, Attach. 1 at 4 + Attach. 2.) Defendants never did accomplish the outside review objective, but did, however, increase the speed of its internal regional review of mortality cases.
85. Contempt sanctions are inappropriate in this instance. The Plan language was worded vaguely and in terms of Defendants' "intent" as opposed to a specific requirement to accomplished a set objective within a set time frame. Defendants have made some progress in their internal review and it cannot be said that they have violated a "clear and specific" order by clear and convincing evidence.
2. Autopsy [**69] Reports
86. The Plan language provides in pertinent part:
By statute, the need for an autopsy in Michigan is the sole determination of the County Medical Examiner, the prisoners family, and in some cases may be requested by two or more registered voters in the county. It is not always possible to obtain an autopsy as this is not in the control of the Defendants. The Defendants will request an autopsy for all unexpected deaths. The Defendants are also pursuing other options to be able to obtain an autopsy in all cases.
(Plan 13.) (emphasis added.)
87. Plaintiffs contend in their Motion that Defendants have violated the underscored language because no "other options" are being pursued. (Pls.' Br. 3.) The statutory authority referenced by Defendants in the Plan, assigning authority to the County Medical Examiner, is found at Mich. Comp. Laws §§ 52.202-52.207. The County Medical Examiner is required by statute to conduct investigations (investigations are preliminary to autopsies under § 52.205) in cases of "unexpected deaths," [*800] deaths without "medical attendance," and in other circumstances listed in the statute. See Mich. Comp. Laws § 52.202. Other [**70] physicians are required to alert the Medical Examiner when the physicians believe that an "unexpected death" or other statutory circumstance warrants investigation. Michigan Compiled Laws § 52.207 also mandates investigation by the medical examiner upon a petition by "six electors" of a county. However, investigation is preliminary to autopsy and does not eliminate the medical examiners discretion. The medical examiner of Jackson County, according to the hearing evidence, has determined as matter of his discretion not to routinely do such autopsies, even when he has received requests, due to dangers of blood-borne disease. (Hutchinson De Bene Esse Dep. 9-10.)
88. In this instance, contempt sanctions are not warranted. The requirement of the pursuit of "other options" is vague, does not require specific conduct, and it is difficult to discern on this record what, if any, further conduct would result in additional autopsies. Therefore, this request is denied.
3. Processing of Handwritten Specialist Reports
89. The Plan requires that "Defendants shall ensure that there is a prompt review of all specialist reports (both handwritten and dictated) . . ." (Plan 15.) The [**71] Plan also says that "CMS should not 'pend' consultation while awaiting dictated consults . . . ." (Id.) Notwithstanding, the record does show that on rare occasions, certain CMS' doctors pend specialty consultations while awaiting their dictation of handwritten notes. (See Pls.' Tr. Br., Dkt. No. 2216, at 9-10, citing references to Pls.' Exs. 88 & 89.) The rate of these pending consults was relatively rare, though, approximating only two per month, with violations not reported every month. (Id.)
90. This rate (though still requiring improvement) represents a very dramatic improvement from pre-Plan levels. The improvement is explained by the work of Dr. Mattai who now regularly checks all "pended" decisions with the objective of eliminating the practice as far as possible. (Mattai Dep. 24-29.) The remaining delays are explained as a product of requests by CMS for more information as to the requested consultations to determine whether the services were medically necessary. (Hutchinson Dep. 19-22.) The record further shows that Dr. Mattai is taking steps to help assure that these rare events do not negatively impact patient care. (Mattai Dep. 24-29.)
91. Upon review [**72] of such record, and in light of the substantial improvement and substantial compliance with the Plan, the Court finds that contempt sanctions are not appropriate as to this issue.
4. SERAPIS--Medication and Lab Orders at DWH
92. The Plan required that Defendants "[e]xpand the SERAPIS system to include all clinical areas . . . including. . . DWH. . . ." No deadline was established. Barbara Hladki's August 30, 2006 response to Plaintiffs indicates that progress has been made on the general goal, but there is not compliance as to DWH medication and lab orders. (Pls.' Br. in Supp. of Mot. for Order to Show Cause, Attach. 1 at 4.) As noted above, Ms. Hladki's most recent testimony is that the process of SERAPIS implementation for labs and medications is now underway and is expected to be completed by January 2007.
93. Plaintiffs argue the case of Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995), which held that the failure of an order to set a "doomsday" did not prevent enforcement in the absence of prompt compliance. That case involved [*801] the imposition of a dismissal order due to non-compliance with a discovery order. Notwithstanding, [**73] the more germane case is probably the case of Armstrong v. Executive Office of the President, Office of Admin, 303 U.S. App. D.C. 107, 1 F.3d 1274, 1277 (DC. Cir. 1993). In Armstrong, the district court ordered the Executive Office to issue new policy without a deadline and held the Executive Office in contempt for failing to do so in a four-month period, but the D.C. Circuit reversed because the underlying order did not contain a deadline.
94. The reason that the Armstrong case is more germane is that it involved the kind of task at issue here-a complicated administrative task that may take extended administrative work, consultation with others, etc. An order absent a deadline is not meaningless. Rather, the best construction of such an order is that it requires action within a "reasonable time." However, since a "reasonable time" is such a broad and flexible concept as applied to complex administrative and technical tasks, the conclusion follows that there has been no showing of a clear violation of a "clear and definite" order as to this element of the Plan.
5. JMF Hiring
95. Defendants were ordered to increase staffing at JMF to cover new clinical responsibilities [**74] for the dialysis program and to increase staffing at JMF to serve prisoners in segregation. (Plan 21 -22.) These are separate and independent requirements. (Id.) Staffing of JMF was to include "four physicians and one mid-level [provider]." (Id.) Defendants have not provided these staffing levels. According to Plaintiffs' Brief, Defendants were only providing two physicians and one mid-level provider at JMF as of mid-August 2006, and Dr. Cohen viewed this failure as critical. (Pls.' Br. 5.) Barbara Hladki's August 30, 2006 Response showed additional staffing--i.e., three physicians and one mid-level provider at JMF, (Id., Attach. 1 at 2), though this is still short of the required staffing levels. Another problem noted in the briefing is that the mid-level provider is restricted and cannot see patients with certain communicable diseases. (Id. at 5 n.2.)
96. Defendants' post-trial briefing likewise admits the short staffing levels. (Defs.' Resp., Dkt. No. 2219, at 10.) The briefing is a bit disingenuous in that it implies that additional dialysis staffing (which is a separate element of the Plan) may be counted toward meeting the five provider limit (which [**75] was clearly not the intent of the Plan). However, even if the dialysis staffing is counted, the staff is still short as the briefing admits. (Id.) Defendants' argue that this was "substantial compliance" with the Plan and that "[o]ne MSP for 69 patients is a very low patient to MSP ratio." 14
FOOTNOTES
14 This argument fails to appreciate that staffing levels at the Hadix facilities must be much lower than staffing levels at other facilities because the MDOC elects (due to the presence of the dialysis unit and DWH) to send its sickest prisoners to the Hadix facilities. Indeed, the record shows that physician schedules for September 2006 were so packed that inmates were scheduled several weeks out to be seen regarding health concerns. (T.T., vol. III, at 581.)
97. Arguments about the necessity of the services, of course, are not germane. The train long ago left the station on whether the additional staffing was necessary--when Defendants agreed to the Plan and failed to challenge its implementation and [**76] enforcement. The staffing is not in substantial compliance because the Plan promised five full-time MSPs and what is presently being provided are four full-time MSPs. This situation is also distinguished from the SERAPIS situation mentioned [*802] above in that the hiring of an additional physician is not a complicated matter. It is a matter of simply placing an advertisement and offering sufficient compensation and benefits to attract capable candidates. Such hiring is routinely done by the MDOC in short-time frames, such as 30 days. (See Hladki De Bene Esse Dep. at 33-34.) The record does not show that the hiring was not done due to difficulty of finding a qualified applicant or confusion about a deadline. Rather, it shows that the hiring was not done because Defendants made a deliberate choice not to comply with the requirement. This is contemptuous and demands a finding of civil contempt and an appropriate civil contempt remedy.
98. Defendants are held in civil contempt for failing to meet this staffing obligation. To remedy this contempt, the Court makes the following coercive sanctions: Defendants are fined $ 1 million dollars, the payment of which is suspended for a period [**77] of 120 days from entry of the contempt sanction. If within the 120 day period the additional staffing is engaged, then Defendants shall file a sworn true affidavit with the Court so testifying, which shall have the effect of exonerating the fine. 15 Additionally, to ensure prompt hiring, Defendants shall do the following: If an applicant is not engaged within the first month of advertisement, then starting on the first day of the second month, they shall increase the offered compensation and/or benefits by a factor of 30 percent in whatever manner they deem fit. 16 Every month thereafter that the position remains open, the offered compensation and/or benefits shall be increased by another factor of 30 percent vis-a-vis the first month amount until hiring is completed. If the position remains unfilled for more than 120 days, in addition to the million dollar sanction, an additional sanction of $ 10,000 per day shall be assessed for every day the position remains unfilled. It is not hard to fill a physician position, you simply have to try.
FOOTNOTES
15 Of course, a false certification would not exonerate the fine and, should a false certification be filed, then Plaintiffs may move both to enforce the payment of the contempt sanction and for additional sanctions against Defendants and/or the affiant. [**78]
16 The Court does share Dr. Cohen's opinion that enhanced benefits is the best manner for maintaining a long-term workforce. This is because, in the past, some care providers have left CMS' employment due to absence of health insurance. However, in saying so, the Court leaves the issue of compensation and benefits solely to Defendants and CMS.
6. Full Time Physician at the Dialysis Unit
99. This Court's Order of January 12, 2006 specifically amended Defendants' Plan to require that Defendants employ an additional internist or nephrologist such that the total hours of that person and Dr. Middlebrook in the dialysis unit would equal the hours of a full-time physician. (Order of Jan. 12, 2006 at P 2(d).) No specific deadline for compliance was given. This requirement was deemed a separate requirement from the other JMF staffing because the physician hired would have to have fluency in nephrology and because additional services would have be dedicated solely to nephrology. Defendants have employed an internist who works 20-hours a week in the unit and Dr. Middlebrook or his partner work [**79] another eight to 12 hours per month in dialysis. (Pls.' Ex. 109C at 3.) This is far short of the 40-hour requirement. The average has been 24 hours per week. (Defs.' Resp., Dkt. No. 2219, 13.) There are also significant questions about whether the physicians even work as many hours as credited them. (T.T., vol. III, at 582-83.) These failures are significant because [*803] the dialysis unit serves approximately 75 patients with end-stage renal disease and other significant chronic diseases which complicate their treatment. 17 (Third Report of the Assoc. Monitor 53.) These patients need timely and effective service on a regular basis to simply stay alive until the next round of dialysis.
FOOTNOTES
17 Defendants put the current number at 69, which may or may not be accurate. (See Defs.' Resp., Dkt. No. 2219, 13.)
100. Defendants argue in their briefing that there has been substantial compliance with the Plan and Order, not because they have hired sufficient physician hours, but because the dialysis patients are being [**80] sufficiently treated by the combination of available physician hours and the services of outside specialists to whom the patients are referred offsite. 18 While the Court appreciates that Defendants are using an outside specialist to increase the percentage of patients with fistulas as opposed to shunts, given the unnecessary suffering and complications shunts cause, the Court has not asked them their opinion about the adequacy of their care. The Court has asked them why they are not complying with the Plan and Order which were neither stayed or appealed. Their answer of "substantial compliance" as to this staffing is a bare fig leaf hiding a gaping chasm. This argument assumes that 16 hours of physician services per week is not an important commodity to dialysis patients requiring regular, life-sustaining care. Like the issue of JMF staffing, this staffing requirement was sufficiently explained and required minimal effort to accomplish. The clear failure to accomplish it, whether due to the assignment of the task to the unmotivated or the simple refusal of Defendants to comply, requires a finding of contempt.
FOOTNOTES
18 There is, however, a significant problem as to offsite services. Although offsite services are appropriate as to occasional services which are not emergent, as to emergency services and those which are regularly performed (care pertinent to bi-weekly dialysis), the lack of rapid and regular availability forecloses essential services from being performed and creates grave risks to patient health.
[**81] 101. Defendants are held in civil contempt for failing to meet this staffing obligation. To remedy this contempt, the Court makes the following coercive sanctions: Defendants are fined $ 1 million dollars, the payment of which is suspended for a period of 120 days from entry of the contempt sanction. 19 If within the 120 day period the additional staffing is engaged, then Defendants shall file a sworn true affidavit with the Court so testifying, which shall have the effect of exonerating the fine. 20 Additionally, to ensure prompt hiring, Defendants shall do the following: If an applicant is not engaged within the first month of advertisement, then starting on the first day of the second month, they shall increase the offered compensation and/or benefits by a factor of 30 percent in whatever manner they deem fit. Every month thereafter that the position remains open, the offered compensation and/or benefits shall be increased by another factor of 30 percent vis-a-vis the first month amount until hiring is completed. If the position remains unfilled for more than 120 days, in addition to the million dollar sanction, an additional sanction of $ 10,000 per day shall be assessed [**82] for every day the [*804] position remains unfilled. Try, try, try again.
FOOTNOTES
19 Lest Defendants be confused, this is a separate million dollars from that expressed in the previous contempt finding.
20 Of course, a false certification would not exonerate the fine and, should a false certification be filed, then Plaintiffs may move both to enforce the payment of the contempt sanction and for additional sanctions against Defendants and/or the affiant.
C. INJUNCTION ANALYSIS
1. Plan and Order Terms
102. There seems to be no real disagreement between the parties that the Plan and Order adopting it should continue. As Defendants put it, "Defendants have been implementing its provisions . . . [and] are now beginning to see the benefits of many of those implemented Plan provisions . . . ." (Defs.' Tr. Br. 1.) Plaintiffs' position is that "[s]ince the approval of Defendants' Plan, many of its provisions have proven insufficiently rigorous to prevent continued denials of necessary medical care to [**83] the Plaintiff class." (Pls.' Tr. Br., Dkt. No. 2217, at 2.) "Plaintiffs urge the Court to require additional modification of the current Defendants' Plan." (Id.) Defendants, to the contrary, "oppose Plaintiffs' requests for further relief as unwarranted by the facts and as an overly intrusive interference with and encumbrance of the already difficult task of administrating health care services in the Hadix facilities." (Defs.' Tr. Br., Dkt. No. 2220, at 1.)
103. Given the history of the Plan and implementation Order and the record evidence, including evidence of preventable death, illness and suffering which prompted them, the Court finds that (1) continuation of the Plan and Order provisions is necessary to prevent irreparable injury and violations of the Eighth Amendment as to class members-including, unnecessary and preventable death, illness and suffering--due to systemic causes; and (2) there is no legal remedy available to address the interests sought to be protected. Furthermore, continuation of these provisions are consistent with the PLRA provisions. The Plan was authored jointly by Defendants and others, and its implementation has been welcomed by Defendants [**84] as a means of improving care, and is not an overly intrusive action which would contradict the PLRA requirements. In so approving it, the Court makes one initial modification of the Plan, which is supported by the testimony of Dr. Cohen at hearing. (See T.T., vol. III, at 586.) That is, the Court will require the final implementation of the SERAPIS as to lab orders and medications at DWH and as to the PharmaCorr pharmacy system to be completed by February 1, 2007. Defendants have already promised in their briefing that SERAPIS will be completed by that date, so the practical effect of this Order is only to prevent against the kind of back-sliding which Dr. Cohen warned could have seriously adverse patient consequences.
2. JMF Staffing, Other Staffing and Related Issues
104. Due to delays in care, including the provision of medicines, surgery and other specialty care caused by the unavailability of JMF and dialysis unit physicians to promptly see patients, the Court concludes (consistent with the relief ordered above) that: (1) the ordering of the additional JMF staffing and dialysis staffing discussed above is necessary to prevent irreparable injury and violations of [**85] the Eighth Amendment as to class members--including, unnecessary and preventable death, illness and suffering-due to systemic causes; and (2) there is no legal remedy available to address the interests sought to be protected. 21 The Court also [*805] finds that such remedy is proper under the above mentioned PLRA provisions because it is non-intrusive (a part of Defendants' original Plan as implemented) and the imposition of this requirement will reduce the burdens of this litigation upon Defendants by assisting in the prompt provision of services to class members.
FOOTNOTES
21 Defendants had asked in their Trial Brief to further put off a decision on the dialysis unit staffing until after hearing of January 2007. The Court declines this invitation. Defendants have received more than adequate opportunities to present testimony. The request for further delay, if granted, would only serve to jeopardize the interests of dialysis patients.
105. Further additional staffing has also been requested by Plaintiffs in light of the [**86] record evidence that persons employed within the system with responsibilities for staffing (e.g., Debbie Roth) have expressed opinions that staffing is inadequate and complicates patient care, as well as other record evidence. The under-staffing has caused regular delays of patient appointments with the certain consequence that patients' care has been delayed and they have suffered unnecessarily in the interim. Such testimony, and the general condition of health care, make clear that staff shortages must be addressed to assure prompt delivery of care. For this reason, the Court will order a comprehensive staffing plan to be filed by Defendants, which shall include a statement of Defendants' plans regarding strategies for recruiting and retaining staff. Plaintiffs and the Associate Monitor are free to comment on the Plan in advance of hearing.
106. This Court finds that the injunctive order described in the preceding paragraph is (1) necessary to prevent irreparable injury and violations of the Eighth Amendment as to class members--including, unnecessary and preventable death, illness and suffering--due to systemic causes (particularly the delay in patient care caused by the [**87] nursing absences); and (2) there is no legal remedy available to address the interests sought to be protected. As such, the Court approves an injunctive order requiring the making of such a plan to be timely implemented by Defendants. The Court likewise finds that such remedy is proper considering the terms of the PLRA in that the filing of such a plan will permit Defendants all necessary flexibility to address the constitutional violations at issue and will not be overly intrusive or otherwise prohibited by the PLRA.
107. Plaintiffs has also requested that two additional MSP floaters be mandated to cover hours at JMF and RGC when regulars MSPs are unavailable. This request appears moot. JMF and RGC already have two floaters assigned. (Mattai Dep. 37, 89.) The Court assumes that Plaintiffs still have concerns about the reliability of those floaters given that nursing floaters (a separate subject) have not been reliably available. The record on this issue is insufficient to support injunctive relief. Nevertheless, the Court does direct Defendants to brief, for consideration at the plan approval hearing, the issue of the availability of existing floaters to provide services during [**88] leave of regular staff.
108. Plaintiffs has also requested that the Court enjoin Defendants to implement a scheduling committee to increase provider productivity. This the Court assuredly will not do. Provider productivity is principally a money issue and it is not one which negatively impacts Plaintiffs' care. That is, it is unimportant in terms of the delivery of necessary services whether Plaintiffs are adequately served by a few productive workers or many unproductive ones. This is a resource allocation issue which is properly within Defendants' administration and control. Relief is denied on this issue because such issues are within the sole province of Defendants and are not properly the subject of intrusive federal action. In saying so, the Court understands that efficiency is related to staffing itself. However, remedies as to staffing, though more costly, are less intrusive and to be preferred under the PLRA because [*806] they do not involve the courts in staff supervision of correctional employees.
109. Finally, Plaintiffs have requested that a plan be ordered to assure completion of CCC enrollment at RGC. The competing evidence on this point is not persuasive. The Court [**89] accepts the testimony of Ms. Hladki that CCC enrollment is proceeding according to plan and selected failures are being addressed with staff. (See Hladki De Bene Esse Dep. 18.) As such, the Court determines that an injunction on this subject should not issue because irreparable harm does not support it.
3. Specialty Care Issues
110. Both the persuasive testimonies of Dr. Cohen and Dr. Walden demonstrate clearly and beyond peradventure that the specialty referral process is "profoundly deficient." (T.T., vol. III, at 402, 589-96.) Such care is routinely delayed beyond the time medically necessary. Furthermore, the delays tend to topple one upon the other for patients with regular needs for specialty service (e.g., cancer patients). Such delays routinely cause unnecessary death, illness and extreme suffering. In light of such record, it is clear that injunctive relief is necessary to prevent further irreparable harm to class members.
111. Plaintiffs have requested that the Court order a 20-percent reduction in the specialty care delays as a starting point in addressing the problem. Although it is clear that remedy is essential, this exact formulation of the [**90] remedy is problematic for some important reasons. First of all, when the care providers are, for example, saying that a patient suffering a heart attack may be seen in 30 days, then no validity should attach to the service-times currently being assigned. Credible expert testimony also supports that Defendants' record-keeping and statistics are error-ridden and not to be relied upon as evidence of adequate care. (See Creekmore Report 1-4; T.T., vol. III, 536; Ferguson De Bene Esse Dep. 128-84; Pls.' Ex. 2A at 27.) It is possible that those figures can be made reliable in the future, but at present they cannot serve as a solid basis for corrective action. The other reason that a blanket reduction is not the wisest policy is that a bland 20-percent reduction does nothing to distinguish between the most urgent cases and those which are less than urgent.
112. Plaintiffs have correctly determined, in the Court's judgment, that two root causes of specialty delay are: (1) provider unavailability; and (2) transport problems. To this list, one may add a third factor, namely that a persistent and daily effort is not made to reschedule dropped appointments within short-time frames. [**91] The Court believes that injunctive relief should be narrowly crafted to address these three issues. Therefore, the Court will at this juncture simply require the filing of a plan by Defendants which addresses these objectives by devoting real resources to the problems--additional transport officers, additional specialty providers and additional staff making daily efforts to reschedule dropped appointments quickly. This effort should, as explained above, concentrate the effort upon providing services to those most urgently in need of services.
113. This Court finds that the injunctive order described in the preceding paragraph is (1) necessary to prevent irreparable injury and violations of the Eighth Amendment as to class members--including, unnecessary and preventable death, illness and suffering--due to systemic causes; and (2) there is no legal remedy available to address the interests sought to be protected. As such, the Court approves an injunctive order requiring the making of such a plan to be timely implemented by Defendants. The Court likewise [*807] finds that such remedy is proper considering the terms of the PLRA in that the filing of such a plan will permit Defendants all [**92] necessary flexibility to address the constitutional violations at issue and will not be overly intrusive or otherwise prohibited by the PLRA.
114. Plaintiffs have also requested additional relief as to specialty care, in-patient clinics with endocrinologists and psychiatrists. The record presently indicates that Defendants are working on these issues to make appointments and/or possibly schedule in-patient treatment when medically necessary. Given this effort, the Court does not presently find that other injunctive relief is necessary as to these issues to prevent irreparable harm. Due to the risk of hypoglycemia deaths, the Court will, however, closely monitor this issue in the future.
4. Further SERAPIS Expansion and Transfer Assessment Forms
115. Under the umbrella of SERAPIS, Plaintiffs have clustered two additional injunctive requests. Aside from the SERAPIS implementation which has been ordered above (concerning DWH lab and medication orders and PharmaCorr connectivity), the sole remaining issue is whether SERAPIS (an ambulatory record system) or a SERAPIS-compatible system must be expanded to include DWH and C-Unit in-patient care. The record deems this to be [**93] essential to patient services, but provides little guidance as to the practical difficulties of doing so and the time frames necessary to achieve success.
The Court certainly believes that expansion is essential for the provision of adequate patient care and must commence at a rapid pace. However, at the same time, it is important to get this process right and to end with a product that works well with SERAPIS and has connectivity with Foote Hospital and other regional systems. Because the record is insufficient to mandate hard deadlines on such issues, the Court finds that the present record does not support immediate injunctive relief since the terms of that relief and the practical difficulties of implementation cannot be determined on the present record.
116. While the Court has declined this invitation for immediate injunctive relief, the Court nevertheless does expect that Defendants will continue their present efforts toward an in-patient electronic record which is compatible with SERAPIS and has connectivity with Foote Hospital and other regional systems. That objective should be reached in the short-term and not the long-term. In saying so, the Court further expects [**94] that Defendants will exercise all possible diligence and study to determine the best possible system to assist medical staff and patients. With the freedom and flexibility to choose their own path in this area, comes the responsibility that it be done correctly and as expeditiously as possible.
117. Also mentioned under the same rubric is Plaintiffs' request that Defendants be ordered to include special accommodation lists (a form for disabled prisoners) as part of the standard patient overview within SERAPIS. Defendants represent that they are presently able to do so and will show at the forthcoming hearing in January that the system is reliable. For these reasons, the Court determines, at present, that injunctive relief is not necessary and would violate the terms of the PLRA.
5. Kite System Expansion and HUM Review
118. Plaintiffs have also requested two items of relief relating to the operation of the kite system, which as noted above permits prisoners to make health care requests regarding systems, services, advice and medicines. The first is expansion of [*808] the kite system to DWH. The kite system is not used as to in-patient care at DWH. The reason it is not used [**95] is that nursing staff is assigned to those places to provide in-patient care and while doing so, typically answer questions and respond to verbal requests on a routine basis. Furthermore, a prisoner who is dissatisfied with the level of response may file a grievance to address the issue. (Hladki De Bene Esse Dep. 52-55.) While the Court agrees with Plaintiffs' counsel that prisoners need timely response and help at DWH, the place this should start is by verbal communication. Adding another layer of impersonal communication, to a system already bogged down with it, is not likely to increase the level of care or serve the Plaintiff class' overall interests. The Court simply finds that the present record does not support such injunctive relief to so expand the kite system since such expansion would be inconsistent with the PLRA provisions and is not supported by a sufficient showing of irreparable harm.
119. Plaintiffs' second related request is that the HUM (Health Unit Manager) be made to regularly review the help line, kite logs and Urgent/Emergent logs. The Court understands that these logs are already being reviewed by other personnel. Furthermore, the objective sought by [**96] Plaintiffs (protection of critical cases) is currently being addressed by Defendants' development of a case management system for critical cases. The entry of the injunction would be inconsistent with the PLRA provisions and is not supported by a sufficient showing of irreparable harm.
6. Reporting of Unexpected Deaths and Significant System Failures
120. Both Plaintiffs and the Associate Monitor have requested that Defendants regularly report unexpected deaths and significant system failures. This request is supported by the fact that recent catastrophic events went unreported until discovered by the Associate Monitor during chance visits. Interestingly, Defendants state that they "do not have any problem with taking up . . . the idea of reporting to the Associate Monitor on a regular basis certain events." (Defs.' Tr. Br. 14.) At this juncture, the Court simply finds that a separate reporting requirement is unnecessary because the relief described below will require sufficient reporting to address this issue.
7. Disability Remedies
121. Plaintiffs have requested disability remedies in eight separate categories. Some of the relief sought is incredibly far-reaching, [**97] including the establishment of a 150-bed air conditioned assisted living center. 22 The record, including Plaintiffs' Exhibits 2A, 2B and 2C and the deposition testimony of Debbie Roth, certainly support that there are large unmet needs in the system, which affect both Hadix prisoners and others.
FOOTNOTES
22 The record on that item is a cloudy one. On the one hand, Defendants' Director of Nursing Debbie Roth testified that Hadix prisoners needed as many as one hundred assisted living beds. (Roth Dep. 76.) On the other hand, Dr. Mattai testified that the number was a much smaller fraction of that total number. (See Mattai De Bene Esse Dep. 45 & 48.) Defendants also represent that the MDOC is presently exploring plans for a large assisted living center in the Upper Peninsula which would meet state-wide needs, including the Hadix facilities. (Defs.' Tr. Br. 15.)
122. At the same time, however, the record is unclear as to systemic causes and the extent of any relief which should be ordered to address [**98] the short-comings of the present system. The Court also believes that the relief described later in this decision will provide sufficient relief to Hadix [*809] prisoners on disability issues provided that Defendants make available sufficient patient beds and living quarters and arrangements for the uncertain number of inmates needing assisted living. For these reasons and because of the PLRA restrictions as to overly intrusive remedies, the Court finds that Plaintiffs' various requests for relief as to disabilities should be presently denied with the exception of the remedies described in the following paragraphs.
8. Office of the Independent Monitor
123. Both Plaintiffs and the Medical Monitor have requested that the Court order the establishment of an Independent Monitor's Office with special powers to take corrective actions regarding patient care. The specific draft proposal for the office asks for the creation of office facilities with sufficient staff and administrative support to accomplish the following goals: (1) monitor the sanitation of the dialysis unit and DLW; (2) accomplish a one-time review of pain relief practices; (3) monitor the adequacy of physician and [**99] nursing staffing; (4) monitor the implementation of SERAPIS; (5) monitor the treatment of renal patients; (6) monitor the pharmacy system and delivery of prescription drugs to Hadix patients; (7) monitor the promptness of specialty care consultations; (8) receive and investigate all manner of prisoner complaints about their medical care; and (9) receive appropriate and requested information from the parties, including medical records, so that such information may be shared and evaluated by the Independent Medical Monitor. (See Pls.' Mot. for Further Relief 5-6 & Attach. 1 at item 9.)
124. Why do such a thing? The answer is many faceted. In the private market place, consumers are protected by competitive pressures and choice. That is, if your doctor does not serve you adequately, you get a second opinion. There is little opportunity for second opinions in prison medical service. You get one opinion, that of the prison or CMS physician. If you do not like it, you kite or grieve it, but you are too often told to pound sand. While it is true that federal courts are sometimes an effective check on this abuse, the sad fact is that the circumstances which create effective checks [**100] on prison conditions usually happen only after the prisoner has been either killed or severely injured. This is because the private market place of attorneys is not interested in taking other cases because they do not generate sufficient income.
125. So what about the prisoner whose treatment (he feels) is likely to jeopardize his health and he wants injunctive relief? That prisoner, after going through the grievance process, files a federal action where typically nothing happens in a hurry. He may move for immediate injunctive relief, but he is lacking the one thing he needs to obtain it--a supporting medical opinion that he will be seriously harmed if additional or different care is not provided. Such cases, almost universally, run into the Sixth Circuit Court of Appeals' precedent in Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976), and similar cases, which stand for the proposition that federal courts will not intervene merely due to differences of opinion as to treatment decisions. Westlake mows down those cases like a scythe cuts wheat.
126. But what about the present Plaintiffs' counsel and medical monitor? The sad fact is that neither [**101] presently have the resources to protect prisoners' interests in obtaining timely treatment of serious medical conditions. Plaintiffs' counsel and the medical monitor typically will bring matters to the Court's attention only after serious injury and/or death has resulted from medical indifference and systemic failures. Notwithstanding the grave systemic [*810] failures of the current medical system, the prisoners within it presently lack the means to protect their own health and to prevent medical indifference from killing and injuring them. This situation does not whimper for a remedy. It cries aloud in a voice acknowledged by all but the deaf and defiant.
127. Starting today, however, prisoners shall have a voice in their medical care at Hadix facilities. The Court finds that the present system is systematically defective, dangerous and readily results in preventable death, illness and suffering due to untreated serious medical conditions. The Court further finds that (1) the establishment of an Office of the Independent Monitor capable of receiving and acting on prisoner complaints, and otherwise improving medical care at the Hadix facilities, is necessary to prevent irreparable [**102] injury and violations of the Eighth Amendment as to class members; and (2) there is no legal remedy available to address the interests sought to be protected. Furthermore, the establishment of the Office shall be by plan of Defendants, which shall permit them sufficient freedom that the resulting Office is not overly intrusive or otherwise in violation of the PRLA provisions. In particular, intervention will be limited to those causes in which at least two physicians of the Office concur that some form of treatment or services is not being timely provided, or where relief from custodial constraints (e.g, placement in a medical setting instead of segregation), is necessary to prevent death, illness or suffering due to an untreated serious medical condition.
128. Therefore, it is now necessary to establish basic parameters and ground rules for such Office. Beginning with facilities, Defendants shall supply the Office and its staff, including the Associate Monitor, office space on the grounds of the Hadix facilities. The Office staff, including the Associate Monitor, shall have full-card access to all of the Hadix facilities, and shall have the powers to interview prisoners, [**103] review medical records, receive and act upon prisoner complaints and petitions, inspect prison conditions throughout the facilities, including those in segregation. Defendants shall accommodate and assist the Office and its staff in completing all assigned duties. Defendants shall urgently report unexpected deaths and significant system failures to the Office.
129. Duties assigned to the Monitor shall include all of the duties mentioned in the draft proposal. They shall also include the duties to: (1) study staffing, access to and repair of equipment, and facility issues, including hospital and long-term care bed availability, at any time that it appears that any of these factors are preventing the treatment of serious medical conditions or causing harm or injury to prisoners with disabilities; (2) take corrective action as to failures of care and non-treatment; (3) intervene with custodial officers and medical officers whose treatment of prisoners violate the Eighth Amendment; (4) revise the statistics of Defendants so that the statistics fairly portray the matters being studied; (5) set new or different treatment dates regarding specialty care and medical case management, and [**104] to review and revise Defendants' Specialty Care Reports so that those Reports represent treatment realities; (6) mandate remedial care in secure locations outside the Hadix facilities (e.g., a secure cancer treatment center) when necessary for corrective action; and (7) mandate prompt and secure transfer of prisoners to medical care both within and outside of the Hadix facilities.
130. These duties require significant staffing. Therefore, Defendants shall employ for the Associate Monitor a full-staff of medically qualified applicants. The applicants [*811] will be finally selected by the Associate Monitor and serve at the pleasure of the Associate Monitor. The applicants must include the following: (1) a full-time physician; (2) a full-time nurse investigator; (3) a full-time administrative support staff member; and (4) such consultants as are necessary to complete required studies. The Office shall be given an annual budget sufficient to permit the employment of consultants and to otherwise function efficiently and perform the assigned duties.
131. The Office will make all decisions regarding patient care by consensus determinations of the Associate Monitor and the [**105] Office physician. Any case as to which they fail to reach consensus will not result in directions to Defendants to provide different or additional medical care. The decisions of the Office will be recorded in meeting minutes which shall be kept by the administrative support staff member. Those meetings may be conducted with one or more participants expressing decisions over the telephone, or electronically. The supporting records for all treatment decisions shall likewise be regularly kept as will all prisoner requests. Any prisoner filing a petition for medical services with the office shall not be transferred during the term that the petition is under consideration, nor during the term of any ordered treatment, except with the express and voluntary agreement of the prisoner. Defendants shall incorporate, in their forthcoming plan, procedures to ensure that frivolous petitions are promptly disposed of, and do not frustrate legitimate prisoner transfers. The plan shall also include protocols for insuring that custodial and medical officers, and independent contractors, follow the directions of the Office and that the directions of the Office do not interfere with safe and secure transportation [**106] and housing of prisoners.
132. This plan, as well as the plans discussed in the preceding paragraphs, shall be filed within 90 days of the entry of the Final Injunction. 23 Hearing shall follow on the plans soon thereafter.
FOOTNOTES
23 Plaintiffs also requested heat-related remedies, but have post-poned presentation of evidence pending later hearing. As such, those requests are denied without prejudice and may be renewed by later hearing.
CONCLUSION
133. A Permanent Injunction shall enter granting in part and denying in part Plaintiffs' Motion for Order to Show Cause and Motion for Further Relief, which order shall require remedy of Defendants' contemptuous conduct and provide injunctive relief as explained in the Court's Findings of Fact and Conclusions of Law.
A new day has dawned for the Hadix facilities and prisoner medical care. Let us greet it with the joy that a new day demands. Those who will curse it, and other progress, shall only resign them selves to pain, hardship and eventual irrelevancy.
[**107] DATED in Kalamazoo, MI:
December 7, 2006
/s/ Richard Alan Enslen
SENIOR UNITED STATES DISTRICT JUDGE
PERMANENT INJUNCTION
In accordance with the Court's Findings of Fact and Conclusions of Law entered this date:
IT IS HEREBY ORDERED that the additional exhibits and post-hearing filings of the parties referenced in the Findings of Fact and Conclusions of Law are ADMITTED for the purpose of the record of the proceedings.
IT IS FURTHER ORDERED that Plaintiffs' Motion for Order to Show Cause and Motion for Further Relief (Dkt. Nos. 2099 & 2105) are GRANTED IN PART AND DENIED IN PART.
[*812] IT IS FURTHER ORDERED that Defendants are held in contempt for violation of the JMF hiring requirements of the Preliminary Injunction Plan and Order of Jan. 12, 2006.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, shall promptly remedy their contempt regarding the JMF hiring requirements subject to the coercive provisions of § IIB.5 of the Court's Findings of Fact and Conclusions of Law.
IT IS FURTHER ORDERED that Defendants are held in contempt regarding the full-time physician hiring requirement within the dialysis unit [**108] of the Preliminary Injunction Plan and Order of Jan. 12, 2006.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, shall promptly remedy their contempt regarding the full-time physician position subject to the coercive provisions of § IIB.6 of the Court's Findings of Fact and Conclusions of Law.
IT IS FURTHER ORDERED that the terms of the Preliminary Injunction Plan and Order of Jan. 12, 2006 are APPROVED AND ADOPTED as the Final and Permanent Injunction in this matter together with the additions described herein.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, are HEREBY ENJOINED to complete the implementation of SERAPIS as to DWH and C-Unit lab orders and medications, and to establish connectivity and utility of SERAPIS with the electronic systems of PharmaCorr, Inc. regarding on-going pharmacy services on or before February 1, 2007.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, shall provide additional staffing throughout its Hadix facilities, and particularly, additional nursing staff; the exact staffing levels, shall be determined after further study and hearing. Defendants' staffing [**109] plan shall be filed within 90 days of this date, consistent with § IIC.2 of the Findings of Fact and Conclusions of Law.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, shall redress delays in specialty care through a plan, to be filed within 90 days, which is accordance with § IIC.3 of the Findings of Fact and Conclusions of Law.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, shall redress failed medical care, through a plan which creates an Office of the Independent Monitor on the grounds of the Hadix facilities, which Plan shall be consistent with the Court's instructions in § IIC.8 of the Findings of Fact and Conclusions of Law and which shall be filed within 90 days.
IT IS FURTHER ORDERED that all other relief sought by Plaintiffs is DENIED, though requests for heat-related remedies are DENIED WITHOUT PREJUDICE subject to further hearing.
DATED in Kalamazoo, MI:
December 7, 2006
/s/ Richard Alan Enslen
SENIOR UNITED STATES DISTRICT JUDGE
EVERETT HADIX, et al., Plaintiffs, v. PATRICIA L. CARUSO, et al., Defendants.
Case No. 4:92-CV-110
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
465 F. Supp. 2d 776; 2006 U.S. Dist. LEXIS 88696
December 7, 2006, Decided
December 7, 2006, Filed
OPINION BY: Richard Alan Enslen
OPINION
[*777] FINDINGS OF FACT AND CONCLUSIONS OF LAW
Step on a man's foot once, and a polite apology will do. Do it twice, and a profuse apology is in order. Do it thrice, and you have left the land of apology and entered the arena of self-defense.
I. FACTUAL FINDINGS
A. Hearing Process
1. Hearing was held in this matter on October 11-13, 2006 to receive proofs regarding three motions by Plaintiffs. After hearing, which could not accommodate all of the parties' proofs, the Court issued a [*778] scheduling Order, on October 16, 2006, to receive additional proofs (exhibits, de bene esse depositions and other proffers). Said Order required the filing of all proofs regarding Plaintiffs' Motion to Reopen Judgment Regarding Mental Health Claims by October 31, 2006. Those proofs were duly filed and the Motion resolved by the Court's Opinion, Order and Preliminary Injunction of November 13, 2006. The balance of the supplemental proofs, regarding [**2] Plaintiffs' Motion for Further Relief and Motion for Order to Show Cause, were to be filed by November 17, 2006. That date was subsequently extended on November 17, 2006 due to the request by Defendants and in recognition of the demands of the briefing. The revised date was set for November 21, 2006. The supplemental briefing and exhibits were then timely filed by parties. 1
FOOTNOTES
1 Least the effort be misunderstood, the documents and exhibits filed fill some five full-sized litigation boxes.
B. A Brief Explanation of Terms
2. This case involves a long history and a department of state government, the Michigan Department of Corrections ("MDOC"), in love with acronyms and other linguistic short-hands. The basic terms are as follows: "CMS" refers to Correctional Medical Services, the for-profit company hired to provide medical staff for the MDOC, including specialty services staff, who are, generally speaking, independent contractors. "DWH" refers to the Duane L. Waters Hospital, the in-patient care facility [**3] at the MDOC, which facility was recently "demoted" in its licensing to a Health Care Center, though the reference to hospital has persisted in practice. DWH also contains an infirmary for convalescence of hospital patients. The "Hadix facilities" refers to the set of prison facilities, including DWH, which were part of the former Central Complex of the State Prison of Southern Michigan ("SPSM-CC") at Jackson, Michigan and/or were created to provide services in connection with those prison facilities. "RGC" refers to the Charles Egeler Reception and Guidance Center, a Hadix facility which receives new prisoners into the MDOC system. 2 "JMF," a Hadix facility, refers to the Southern Michigan Correctional Facility. 3 JMF also houses a dialysis unit for providing dialysis services and a "C-Unit," a unit for convalescence and care of infirm dialysis patients and others. "Parnall," a Hadix facility, refers to the Parnall Correctional Facility. The G. Robert Cotton Correctional Facility and Cooper Street Correctional Facility are also at Jackson, but are not Hadix facilities. "SERAPIS" refers to the ambulatory electronic medical record system used by the MDOC, the implementation [**4] of which has been a painfully slow process in its completion. "CCC" refers to Chronic Care Clinics, which are medical clinics used at Hadix facilities to regularly deliver care to chronically-ill prisoners.
FOOTNOTES
2 This facility is also often referenced as "Egeler."
3 JMF refers to its honorary title, the Josephine McCallum Facility.
C. Consent Decree and Violation Histories
3. This suit was filed in the United States District Court for the Eastern District of Michigan in 1980 to redress a variety of unconstitutional conditions, including inadequate mental health care, at certain designated Jackson, Michigan prison facilities operated by prison officials of the MDOC pursuant to 42 U.S.C. § 1983. In 1985, a Consent Decree was entered by stipulation of the parties with the approval [*779] of United States District Judge John Feikens.
4. Section II.A of the Consent Decree pertained to medical care for prisoners within the Hadix facilities. The section promised to each [**5] Hadix prisoner "medical services consistent with contemporary professional health care standards." (Consent Decree § II.A. 1.) The Decree further promised a fully-licensed hospital, medical screening, regular access to health care unimpeded by custodial staff, and staffing and new procedures sufficient to fulfill those promises. (Id. at § II.A.1-5.) In addition to other important matters, including special diets and medicines, the Decree also promised that quality assurance audit processes would be used to insure proper health care access, adequate care and supervision of care providers. (Id. at § II.A.6-12.)
5. Judge Feikens initially transferred enforcement of the medical care provisions of the Consent Decree to this Court by Order of June 5, 1992 pursuant to 28 U.S.C. § 1404(a). Hadix v. Johnson, 792 F. Supp. 527, 528 (E.D. Mich. 1992). The purpose of the Order was to promote uniformity and effectiveness of remedy in light of this Court's enforcement of a Consent Decree involving the same issues in a separate suit--United States v. Michigan, Case No. 1:84-cv-63, 989 F. Supp. 853. Id. See also Hadix v. Johnson, 228 F.3d 662, 665 (6th Cir. 2002) [**6] (discussing history of suit).
6. Despite the success of the Decree in fostering improved conditions as to many aspects of the Decree, the provision of health care has remained both a troubled and troubling aspect of the Decree. Progress in this suit was delayed between 1996 and 1999 due to appeals involving the interpretation and constitutionality of section 802 of the Prison Litigation Reform Act ("PLRA"), P.L. 104-134, codified at 18 U.S.C. § 3626. In December 1999, after such delay, the Court conducted a compliance hearing. The result of that hearing was a February 18, 2000 set of Findings of Fact and Conclusions of Law, which determined that certain provisions of the Decree should be terminated, but found constitutional violations as to other portions requiring self-remedy by Defendants. (See Feb. 18, 2000 Findings of Fact & Conclusions of Law; Feb. 18, 2000 partial termination Order; Oct. 29, 2002 Findings of Fact & Conclusions of Law ("2002 Findings") at 1.)
7. Another evidentiary hearing was held in May 2002, which charted the progress of such self- remedy. The 2002 Findings following that hearing filled 266 pages and discussed hundreds [**7] of cases of inadequate or neglected medical care. Of particular concern in those Findings were the following failures: (a) the failure of the health care system to provide timely access to care to patients with urgent and emergent serious medical problems (2002 Findings PP 217 & 324); (b) the failure of the system to provide timely access to specialty care, which failures include the delaying of surgery of a lung cancer patient for over a year and the repeated failure to transport another patient to chemotherapy appointments (with one exception), which failures caused death in both cases (2002 Findings PP 728, 729 & 860); and (c) the failure of the system to provide a readable, comprehensive and current medical record to care providers (2002 Findings PP 790-867).
8. As a consequence of these and other Eighth Amendment violations, the Court enjoined Defendants to comply with the instructions for remedy in Section XIII of the Findings. (Order & Inj., Oct. 29, 2002.) Phase one of the medical remedy was the appointment of a medical monitor. (Id. at PP 1437-38.) After interview of candidates, Robert Cohen, M.D., was appointed medical monitor pursuant to an [*780] Order of this Court authorizing [**8] independent monitor F. Warren Benton to so appoint him. 4 (Order of Apr. 21, 2003.) This appointment was to be followed by the development of a remedial plan by the Monitor and the parties. (See 2002 Findings P 1440.) However, the requirement of a remedial plan was later vacated, not because it was inappropriate, but it was contained in the same paragraph which required a heat-related remedy as to which the parties came to an agreed resolution which involved vacating that paragraph. (See id. at P 1442; Order of June 6, 2003.) 5 However, apart from those technical details, there continued at the time a mounting crisis in health care, which has fully consumed the resources of the parties, the Court and the Medical Monitor in seeking solution. We have been bailing, not sailing.
FOOTNOTES
4 The Court wishes to express its enduring gratitude to Dr. Cohen for accepting this difficult appointment and for persevering in the midst of the systemic problems in the Hadix health care system.
5 There was much else on the parties' plates at the time. The Findings related to not only medical care, but also heat-related injury and fire safety. The heat-related injury and fire safety aspects were appealed. Those appeals, after remand and substantive modifications, resulted in the entry of a heat-related injury plan and also, eventually after further findings, in an amended fire-safety plan. (See Order of June 6, 2003; Order of June 19, 2003; and Am. Fire Safety Inj. of Aug. 21, 2006.) The fire safety appeal and amendment process in particular shows that the wheel of the law, though it grinds slow, grinds fine.
[**9] C. Medical Status Reports and Preliminary Injunction Plan
9. Dr. Cohen's first medical Status Report was filed with the Court on July 13, 2004. The second was filed on January 13, 2005. The third was filed on September 12, 2005. The basic similarity between all three was extensive commentary on gross failures of care, inadequate care, and preventable injury, disease, and loss of life. The Court also received emergency correspondence concerning systemic failures (collapse of pharmacy and the death of T.S.), which are discussed farther. (Letter of June 2, 2006, Dkt. No. 2035; Letter of Aug. 14, 2006, Dkt. No. 2088.)
10. In particular, the Third Report noted a "crisis" in medical service provider staffing as of March 2005, which was exacerbated by the discharge of a delinquent doctor, Dr. Faghihnia. Another problem was that additional physician responsibilities were being placed upon the medical staff with the transfer of "C-Unit"--a unit for treatment of dialysis patients and other chronically-ill patients too sick to live in general population--to the Hadix facilities. (Third Report at 13 (Dkt. No. 1897 and also received as Pls.' Ex. 5A).)
11. Problem cases [**10] noted in the Third Report included, by way of example: patient 1, a patient who died of an untreated staph infection and gastro-intestinal bleeding while housed in administrative segregation (id. at 11); patient 2, a patient with HIV, Sicca Syndrome (chronic extreme dryness of the mouth and esophagus causing difficulty swallowing) and excessive weight loss (down to 108 pounds), who did not receive a pureed diet, and was not treated for abdominal pain, crumbled teeth and painful lesions (id. at 16-20); and patient 3, a 29-year-old cancer/HIV patient whose rectal cancer treatment was delayed by eight months due to delay in a simple diagnostic test and delay in referral for radiation (id. at 20-23). The Third Report included specific comments on 10 patients of 23 files surveyed, including dialysis patients, diabetics, and cancer patients, whose treatment were all grossly deficient and deemed representative of the facility care.
[*781] 12. During the later Preliminary Injunction hearing discussing the Third Report, Dr. Cohen also reported to the Court another instance of a prisoner death (A.R.) caused by grossly negligent care. In that case, a brittle diabetic was grossly over-prescribed [**11] insulin by his physician and no in-patient care or endocrinologist consultation was ordered to monitor the diabetic's blood sugars and care. (Hr'g Tr. of Oct. 19, 2005 at 21.) The patient asked for a glucometer to self-monitor his blood sugars, which request was not granted, and then predictably died overnight of hypoglycemia, causing heart failure. (Id.) The medical staff also took some 20 minutes to respond to the emergency and the patient was not effectively treated by on-duty medical providers before the Emergency Medical Technicians arrived. (Id.; see also Order of Dec. 16, 2005, explaining case in greater detail.)
13. As a consequence of these and other failures, which the Court found to be violations of the Eighth Amendment, the Court granted Plaintiffs' Motion for a Preliminary Injunction, which Injunction required Defendants to propose a corrective plan for Court approval. (Prelim. Inj. of Oct. 19, 2005; see also Am. Prelim. Inj. of Nov. 23, 2005.) The Plan was timely filed by Defendants. (Plan re Prelim. Inj. of Oct. 19, 2005.) The Plan was some twenty pages in length and required, among other things, the following: (1) regular physician rounds in segregation [**12] (Plan 2); (2) the audit of medical care for chronically-ill prisoners in segregation and other selected cases as part of the quality assurance process (id. at 3); (3) the establishment of an infirmary at DWH for patients needing infirmary care with 24-hour nurse and physician staffing (id. at 3-4); (4) establishment of a Unitary Medical Record System including all laboratory studies, all medications, complete with a link between SERAPIS and the pharmacy computer system, and an expansion of SERAPIS to include all clinical areas (id. at 6); (5) automatic renewals of all chronic medications (id. at 9); (6) refinement of the job description of the Jackson Medical Director to include more active medical service provider, dialysis and CMS oversight (id. at 11); (7) autopsies for all prisoner deaths (id.), (8) better communication, follow-up and monitoring regarding CMS referrals for specialty care (id. at 12-13); (9) monthly staff meeting regarding the Dialysis Program (id. at 14); and (10) enhanced staffing of service providers to meet the increased demands of the expanded clinical responsibilities at the Hadix facilities (id. at 19-20).
14. [**13] This Court held a hearing regarding such Plan on January 11, 2006. The next day, the Court approved the Plan with some important modifications including: (1) selected paragraphs were stricken as factually inaccurate; (2) the SERAPIS computer system, or equivalent system, was to be applied to pharmacy and laboratory records of prisoners at DWH and C-Unit; (3) monthly reports were required to specify the timeliness of specialty consultations, which were to be delivered in a timely way; (4) a full-time nephrologist or internist was to be added to the C-Unit; (5) all patients in segregation were to be medically reviewed within one week; and (6) Dr. Cohen was authorized to consult with a nephrologist to obtain specialty review of patient files as necessary. (Order of Jan. 12, 2006.) The language of the Plan document, which was drafted together by the parties and Dr. Cohen, expresses the parties' consensual understandings and relationship at the time. It did not express exact deadlines nor precise formulas for accomplishing certain objectives because the parties were working cooperatively at that time.
15. Defendants failed to timely appeal either the Preliminary Injunction or the [*782] Order [**14] approving and implementing the Plan.
D. Possible Successes, Fiascos and Administrative Responses
16. Not all of the news about prisoner treatment at the Hadix facilities has been adverse. Defendants have implemented the December 2005 Plan and other beneficial programs since then, and are now reporting certain measures of systemic improvement as a consequence of those changes. (Defs.' Tr. Br. 1-5.) For example, they have reported hemoglobin alc averages for diabetic patients that show the percentage of patients in good control exceeding community averages for diabetic patients in good control. (Id. at 5; Craig Hutchinson, M.D., Dep. 5-6.) How much of this improvement is due to health care as opposed to dietary control or the general facility layout itself (i.e., prisoners have assigned diets and must walk distances to obtain food and services) is not known, though the numbers are positive nevertheless. Three other positive developments have also coalesced to the benefit of diabetic care: (1) the opening of the DWH infirmary described above; (2) a pilot program to provide glucometers to inmates to self-test their blood sugars; and (3) Defendants' recent decision [**15] to provide endocrinology consults to brittle diabetics who were not benefitting from standard internist care. (See Defs.' Tr. Br. 3; Hutchinson Dep. 101.) In the Court's judgment, these improvements are not only helpful, but essential to ensure adequate medical care to diabetic patients.
17. In part, the DWH infirmary was intended to address out-of-control diabetic patients such as A.R., who needed medical monitoring, especially at night, to guard him from deadly hypoglycemia reactions due to both a change in his insulin regime and poor control generally. Self-use of glucometers by able diabetic patients is the standard of care in the community for important reasons. 6 See A.m. Diabetes Assoc., Standards of Med. Care in Diabetes (Position Statement), Diabetes Care 27 (Suppl. 1): S15-S35 (A.D.A 2004.) Diabetics who are unsure whether they are experiencing the onset of hypoglycemia need to check their blood sugars emergently (in a matter of a few minutes when blood sugars are precipitously low) to determine whether to treat the hypoglycemia with glucose (sugared food stuffs) before they lose their capacity for self-treatment (unconsciousness). The testing is also required [**16] to avoid unnecessary self-treatment, which would otherwise expose them to hyperglycemia (which has long-term negative health consequences and short-term consequences when extreme) and fluctuations in blood sugar which would otherwise complicate their treatment. 7 This testing is particularly important at p.m. hours before the patient sleeps--since a hypoglycemic reaction at night is likely to go untreated and, if severe enough, may cause death.
FOOTNOTES
6 Diabetic patients who are unable to provide for their own well-being because of mental defect or disease present a separate problem, and one probably requiring long-term hospitalization or other extensive remedies.
7 Of course, the other component to this issue is that diabetic patients are provided and allowed to store adequate food stuffs in their living quarters, and emergency food stuffs are available to custody officers to provide to prisoners suffering hypoglycemia. Special care must also be given to the treatment of diabetics in administrative segregation, many of whom simply cannot be safely housed there. Those who can be safely housed, particularly those who are insulin dependent, will require hyper-vigilance on the part of staff to prevent deadly outcomes.
[**17] 18. In the Court's judgment, the fact that self-monitoring is only now becoming available is an admission of past error, though Defendants are to be commended nevertheless for their corrective actions. [*783] They are also to be commended for having determined that endocrinologist consultations are necessary for some diabetic patients and will be made available. This is important because certain brittle diabetics, particularly type 1 diabetics whose long-term insulin regimes become ineffective over time and type 2 diabetics who are insulin dependent and experiencing difficulty with their regimes, often need specialist assistance to accomplish safe and effective treatment.
19. The infirmary beds at DWH were added in January 2006. (Defs.' Tr. Br. 3.) According to Defendants, this unit has greatly assisted patients returning from hospitalization. (Id.) Defendants are also now adding some 28 beds to C-Unit (dialysis patient unit), which beds are scheduled to be completed in mid-December 2006. (Id., Barbara Hladki De Bene Esse Dep. 34.) Defendants anticipate that this will benefit care in C-Unit. (Id.)
20. Defendants also report success in maintaining HIV patents [**18] in Hadix facilities at a 73 percent full suppression rate. (Hutchinson Dep. 4.) In the opinion of Dr. Craig Hutchinson, M.D. this rate compares favorably with the state's overall rate of 81 percent given that the sickest of the HIV patients are channeled to the Hadix facilities. (Id.) Plaintiffs have challenged this assertion. In particular, as noted by Plaintiffs' counsel and Dr. Hutchinson, the number does not represent prisoners housed at C-Unit and Duane Waters Hospital (areas where the sickest inmates are located). (Id. at 51.) So, it is impossible to say whether the overall rates at the Hadix facilities represent a quality healthcare response.
21. Defendants also report the results of a prolonged experiment regarding their "pill lines''--lines to deliver medicines to certain inmates. They experimented with calling inmates to the "pill line" by "pod" instead of by "block" (the larger housing unit). (Defs.' Tr. Br. 3.) This experiment did not work and complicated the ability of patients, including diabetics, to get to the food hall to eat their meals. (Id.) They then tried calling inmates two "pods" at a time to the pill line, and found that this approach [**19] was far better. (Id. at 4.) They now plan to physically modify the pill delivery facilities to allow more inmates to line up inside (out of the inclement weather). 8 (Id.) There was no plan, however, to speed delivery by use of more dispensing lines. The reason this ready solution was not proposed is obvious from the record as explained below: Defendants are grossly under-staffed for nursing care. (See also Debbie Roth Dep. 67-68.)
FOOTNOTES
8 This is a significant issue because infirm patients, when made to wait extended periods of time in the cold, will (out of concern for self-preservation) be discouraged from timely receiving and using life-saving medicines.
22. Another bit of news qualifies as both a fiasco and a belated success. The fiasco part of the story began on May 31, 2006 when Dr. Robert Cohen, M.D., the medical monitor, was visiting the Hadix facilities for a routine inspection. (Pls.' Ex. 5(B) at bates no. 322330; Trial Testimony ("T.T."), vol. III, 584.) Prisoners then informed him [**20] that medication refills due since May 26, 2006 had not been filed. According to Dr. Cohen, nothing was being done to address the debacle because when the pharmacy computer system was checked, it reported the unfilled orders as filled. (Id.) Dr. Cohen determined that this problem was not exactly recent in that it affected some prescription refills as early as May 19, 2006. (Id.) He also reported that as of the morning of June 1, 2006 pharmacy staff was, after deliberation, making no efforts to cure the problem. (Id.) The cause of the delay was the loss of pharmacy staff (retirement of a pharmacist), [*784] a failure of the SERAPIS computer system, and the delayed implementation of a new private pharmacy system for chronic medications. (Id.) Some effort was, however, being made by health care staff to fill some prescriptions through the local Walgreen's pharmacy, though "no rapid effective solution to this critical problem had been formulated or implemented." (Id.)
23. Based on Dr. Cohen's discussions with senior staff on the afternoon of June 1, 2006, he requested that the new outside remote vendor (PharmaCorr, Inc.) attempt to provide early and emergency refills of [**21] the chronic care medications. (Id.) Because of the grave concern and the life-saving nature of the medicines involved. Dr. Cohen asked that daily reports be provided to help him and Department staff ascertain that all refills were being provided and the extent of the delays. (Id. at 322329-322331.) Dr. Pramsteller has shared these concerns in his testimony that certain chronic medications (e.g., cardiac medications, HIV medications, etc.) cannot be interrupted without creating "a big problem" (i.e., predictable bad outcomes). (See Pramsteller De Bene Esse Dep. 23.)
24. These events later caused the depositions of the Jackson Medical Complex Director of Nursing, Debbie L. Roth, and the Jackson Medical Complex Administrator, Barbara Hladki, to be taken. Ms. Hladki was deposed on September 21, 2006. Ms. Roth was deposed on September 29, 2006. As of the dates of their depositions, they were not fully aware of the crucial role that Dr. Cohen had played in restoring pharmacy services to many prisoners. (Hladki Sept. 21, 2006 Dep. at 48-50; Roth Dep. 24-28.) They were also not too keen to give Dr. Cohen credit for acting emergently until confronted with the [**22] timing of his correspondence and the sequence of the events. (Id.)
25. The happy part of this fiasco was the early recruitment of PharmaCorr. This was happy for a variety of reasons. First of all, the Court has every reason to believe that PharmaCorr will function like other reliable commercial remote pharmacy services--fill and place orders consistent with the standards of care in the community. That is, the prescriptions will be regularly filled by PharmaCorr staff with computer programs used to ensure that orders are provided timely and the ordered . prescriptions are not contra-indicated either by patient health or drug interactions. Indeed, Barbara Hladki has already testified that her initial experience with PharmaCorr has been one which has improved automatic refills of chronically needed medicines. (Hladki Sept. 21, 2006 Dep. 31.)
26. Such improvement, though, is not without some complications in that Defendants do not anticipate that PharmaCorr will be connected to the SERAPIS medical records system until middle to late January 2007. (Defs.' Tr. Br. 2, 15.) Until then, Defendants cannot fully insure that pharmacy care meets community standards. Furthermore, Dr. [**23] Cohen expressed reservations at the time of hearing that the system had not yet obtained the functionality necessary to alert care providers about chronic medication orders requiring automatic renewal, which is an essential part of an operative pharmacy system. (T.T., vol. III, 585.)
27. Returning to the fiasco category, a brief comment is warranted as to the case of P.H. P.H. died of complications of treatable hyperthyroidism after his care was neglected for over a year because Defendants perennially ignored both his need for medical care and the care for paranoia which was causing him to refuse medical treatment. Rather than simply repeat the Court's earlier discussion of the case in its [*785] November 13, 2006 Opinion, the Court now adopts that discussion here by reference. Defendants have sought to add to that record with testimony of Bency Mathai, M.D., the physician who was responsible (together with the mental health team) for sending the paper work to Lansing to seek probate court appointment of a medical guardian to approve care on P.H. 's behalf. (Mathai De Bene Esse Dep. 7-16.) Dr. Mathai's account makes clear (consistent with Dr. Cohen's previous account) that she acted [**24] promptly and in the best interest of P.H. However, this testimony does nothing to excuse any subsequent delay caused by others in Lansing who received the paper work. (Id.) Nor does such testimony attempt to excuse or defend the very prolonged delay in medical treatment and psychological treatment caused by other providers that occurred prior to Dr. Mathai's consultation with P.H. The Court understands that the guardianship proceedings were intended to expedite treatment, but those proceedings did not begin until P.H. had been effectively delivered to the probate court system on the precipice of death.
28. The other certain fiasco that Dr. Cohen "discovered" during a routine visit was the August 6, 2006 death of T.S. This death was reported to the Court by letter of August 14, 2006. (Dkt. No. 2088.) The Court has already commented extensively upon that death and the grossly defective medical and mental health care which promoted it. (See Op. of Nov. 13, 2006.) Rather than repeat those words again, the Court adopts them here by reference with two brief additions. The first is due to the recently released autopsy of T.S., which the parties have presented by Stipulation to [**25] become part of the evidentiary record. (Stip. of Nov. 17, 2006; attach. A & Order of Nov. 21, 2006 granting Stip.) The Autopsy Report, which was based in part on a Toxicology Report recently completed, gave the cause of death (consistent with Dr. Walden's prior opinion) as complications of hyperthermia and dehydration. (Id.) The complications likely caused an electrolyte imbalance that not irregularly causes heart arrhythmia and failure. (Id.)
29. Second, in advance of T.S.'s death, the Department of Corrections had announced a "case management" system to monitor medically high-risk inmates in administrative segregation. (Defs.' Tr. Br. 4.) As Defendants put it, that system "is not fool proof." (Id.) "Fool" is the operative word in that sentence, as applied to all care T.S. received prior to his death, including from custody, medical staff and psychological staff. Since the death of T.S., Defendants have taken steps to communicate a need for custody staff, medical staff and mental health staff to share information to protect patient welfare. (Defs.' Tr. Br. 4 & Ex. B.) At the same time, however, this effort must be conducted consistent with standards of medical confidentiality.
[**26] 30. Defendants have also made a case management effort which is directed to prevent the lapse and failure of services in critical cases (e.g., cancer treatment, cardiac treatment, etc.). (Id.) It is not explained how this system will reliably function, however, when many of the impediments which has caused a lack of service in the past (failure of transportation, unavailable specialists and indifferent and overworked providers) continue unabated. 9
FOOTNOTES
9 (See also B. Mathai Dep. 60-62, commenting on the administrative segregation health "vetting" process. Interestingly, Dr. Mathai speculated that custody officers would not have listened to physicians' orders regarding the custodial treatment of T.S. If this is true, then the entire system is doomed to failure.)
31. Defendants have announced in their Trial Brief another recent attempt to [*786] study and reform their health care efforts. Exhibit C to the Trial Brief is a Request for Proposal--meaning that Defendants were seeking a bid as to a two-phase [**27] study of their health care system, with phase one to be completed by April 1, 2007 and phase two to be completed six months later. Defendants represent that they intend to employ the National Commission on Correctional Health Care (and any subcontractor it selects) to perform such study. (Defs.' Tr. Br. 5 & Ex. C.) At this point, it would be speculative to predict either any success or improvement as a consequence of a distant study, particularly when such studies in the past have only served to cut timber and line file drawers.
E. The Specialty Care Debacle Continued
32. Perhaps the most remarkable testimony the Court received at the last hearing involved the dialogue between Dr. Pramsteller, the Michigan Department of Corrections Medical Director, and Dr. Cohen, the medical monitor. Both were curious to know whether the rather tentative remedy in their Plan to fix specialty care delays, monthly reporting to the Court of delay numbers, had resulted in any improvement. The sheer numbers provided established that 30 to 40 percent of the specialty care was being provided outside of the time deemed medically necessary. (T.T., vol. III, 589.) Dr. Pramsteller and Dr. Cohen, [**28] in order to assess the harm of such delay, randomly picked six cases of delayed specialty care from a list of such cases. (Id. at 589, 593.) In two of those cases, the delay did not threaten any imminent harm, though in one of those cases it may have caused prolonged pain. (Id. at 589-90.) In the remaining four cases, the delay was presenting the prospect of unnecessary death and grossly unnecessary suffering. In the case of D.R., a patient with blood in the urine, it took medical staff 40 days to perform testing (IVP x-ray), which showed that one of his kidneys was blocked and not functioning due to a kidney stone, and his treatment was further delayed for several weeks after the test was performed. (Id. at 590-91.)
33. Another patient C.W.S., a 50-year-old with coronary artery disease, had a stent in his left main coronary artery, the most dangerous place for blockage. (Id. at 591.) He had been using nitroglycerin and, because of increasing frequency of chest pain with activity and at rest, had increased nitroglycerin usage to several times per day. (Id.) He had chest pain radiating to his neck and arm with heavy substernal pressure. (Id.) This is the [**29] basic medical school definition of an impending heart attack. (Id.) Defendants' response was to schedule a 30-day consult. (Id.) C.W.S. had needed the consult immediately. (Id. at 591-92.) When he was finally seen, after more than 30 days, testing showed a 70-percent blockage of the left coronary artery with stenosis in the right coronary artery as well. In Dr. Cohen's opinion, the patient was fortunate to have survived the prolonged delay in treatment. (Id. at 593.) The patient was referred directly by the cardiologist for emergency coronary artery bypass surgery. At the time of the review by Drs. Cohen and Pramstaller, the surgery had taken place and the patient had returned to JMF. Remarkably, on the day of their review, physician staff at JMF were unaware that C.W.S. had surgery, and were not aware that he had returned to their facility.
34. J.F. was the third adverse delay case. He was a patient with end stage renal disease who was complaining about rectal bleeding and displayed two abnormal polyps during a barium enema on June 21, 2005. (Id.) He was scheduled for a colonoscopy in two months, but, according to the chart, custody cancelled his appointment. [**30] [*787] (Id.) He was then not seen again for the condition until the delay was discovered by medical staff on April 21, 2006 and his colonoscopy appointment rescheduled for July 24, 2006. (Id.) No attempt was made by providers to schedule the case emergently notwithstanding the past delay and real prospect of cancer. (Id. at 594.) Eighteen days after the colonoscopy took place, on August 11, 2006, the results were reported as high grade dysplasia, an abnormal, non-cancerous but possibly pre-cancerous lesion. (Id.) No follow-up was ordered despite the medical risk. (Id.)
35. D.U. was the last adverse case studied. D.U. had complained of a mole which was increasing in size on his back on June 25, 2005. He kited repeatedly and was then seen on July 8, 2005 and diagnosed with a "melanocystic skin mole" which the doctor (who no longer works for Defendants) determined should be "watched closely," but no biopsy was ordered. (Id. at 595.) Follow-up was ordered in two months, at which time (September 8, 2005) the doctor determined that the "mole" should be surgically removed within two weeks. As of October 10, 2005, this had not occurred. The patient saw a nurse on that [**31] date and complained that the growth had persisted for a long period of time, and he was told to use a hot compress. (Id.) An October 14, 2005 appointment to remove the "mole" was cancelled by a medical provider and rescheduled for October 21, 2005, which also did not occur. (Id.) The patient was seen by a physician assistant ("PA") and told the PA that he had family history of cancer. (Id.) This resulted in another request for surgical excision which was ignored. (Id.)
36. By January 20, 2006, the "mole" was seen by medical staff and was then a black-red mass measuring .5 by .7 inches square in the interscapular area with irregular margins. It was noted to be bleeding. On January 30, a physician performed a wide excision of the lesion and ordered follow-up care and testing. (Id. at 596.) A February 7, 2006 pathology report showed malignant melanoma. Thereafter, Dr. Fatu (staff physician) attempted to obtain the patient's immediate referral to the University of Michigan melanoma clinic for cancer treatment, but the attempt was somehow administratively derailed while the patient was sent to an oncologist instead of a melanoma treatment center. (Id.) The required [**32] urgent standard of care--a sentinel node biopsy--which is used to determined if the metastatic cancer has spread to the lymph system was not performed until April 12, 2006 (another gross and inexcusable delay). That biopsy did show that the cancer had spread while the patient was not receiving effective cancer therapy. (Id.)
37. As noted above, these cases are remarkable both because they were randomly selected from a list of delayed referrals and because the system of monthly reports instituted in January 2006 provided full notice to Defendants of the dangerous treatment delays. The monthly specialty reports (Pls.' Ex. 88) themselves are interesting because they show relevant data as to specialty care. Dr. Pramsteller has testified that he regularly evaluates similar data, especially as to diseases such as heart disease, cancer, diabetes and dialysis patients--which diseases have regular fatal outcomes and use significant economic resources. (Pramsteller De Bene Esse Dep. 35-36.) He further commented that the Hadix facilities require a large portion of the state medical resources because of the population of sick inmates housed there. (Id.) He classified cancer [**33] and heart disease as the two most expensive medical conditions. (Id.)
38. To take January 2006 and cancer as an example, the January 2006 report [*788] showed 48 hematology/oncology patients were seen at DWH in January and another 25 were "pending" to be seen at DWH. (Pls.' Ex.88 at bates no. 321678.) Offsite, nine hematology/oncology patients were seen and ten were pending. (Id.) Although the report listed two off-site cancer treatment centers, the report showed that no care was authorized as to those centers. (Id.) Later versions of the report did not even list those centers. The February 2006 data for onsite specialty care in this category showed 12 patients were seen, two were rescheduled, 13 were pending and five were past pending. (Id. at bates no. 321739.) As to offsite "radiation/oncology," five were seen, ten were pending and three were past pending. (Id. at bates no. 321740.) The March 2006 data for onsite specialty care in this category showed 16 patients seen, one rescheduled, 14 pending and seven past pending. (Id. at bates no. 321789.) The offsite numbers were 12 patients seen, 11 pending and six past pending. (Id. at bates no.321791.) The April [**34] 2006 onsite numbers were 8 patients seen, two rescheduled, seven pending and six past pending. (Id. at bates no. 321846.) The April offsite numbers were 12 seen and seven pending with none past pending. (Id. at bates no. 321847.) The May onsite numbers were three seen, seven pending and three past pending. (Id. at bates no. 321902.) The May offsite numbers were nine seen, two rescheduled, six pending and two past pending. (Id. at bates no. 321903.)
39. To skip to the later months, the summary sheets are not informative as to cancer treatment because CMS shifted to an "automatic" approval process for cancer referrals to facilitate treatment. (Hutchinson Dep. 98-99.) This was done because, "We knew that simply the time required for even expeditious handling of all the pieces of paper . . . would not deliver some of the cancer care within the time frames that needed to occur." (Id.) Although Dr. Hutchinson proclaims that CMS has caused a "fix" to the system, both the above examples, the statistics and the brute facts do not bear out that blithe conclusion. For the month of August, which lacks the summary sheet, the "patients seen" report still shows that many [**35] cancer patients were seen beyond the prescribed treatment parameters. For example, patient W.D. had a diagnosis of tongue cancer. (Pls.' Ex. 88 at bates no. 322119.) He was to be seen in ten days, but was seen in 43 days because of "first available specialist schedule . . . ." (Id.) Similarly, M.W. had lung cancer and was to be seen in 21 days; he was seen in 27 days and no explanation was given for the delay. (Id.) Patient R.C. had T-Cell Lymphoma and was to be seen in 14 days; he was seen in 21 days with no explanation for the delay. (Id. ) Patient X.W. also received delayed treatment for cancer of the esophagus. (Id.) Although some of these delays may seem inconsequential in length, the thorny problem for cancer patients is that their course of treatment (from initial symptoms, to diagnosis, to excision of the cancer (when possible) and to multiple follow-up procedures (radiation and chemotherapy)) requires multiple rounds of waiting and scheduling and potential cancellation due to illness, transport problems, doctor unavailability, etc. This scenario, in the best of circumstances, leaves the inmate fighting for life amidst both the intended and unintended, but [**36] equally profound, cords of custody.
40. Defendants themselves admit that they are unsatisfied with their own progress in improving the specialty referral process. Here is what defense counsel wrote:
Even with the Defendants' November 15, 2006 specialty care report, based on October data, the percentage of DWHC specialty care requests reported as "excess" or "late" was twice that of the [*789] JMF and SMT facilities. While this last report is an improvement from the reports early this year, more work needs to be done.
(Defs.' Tr.Br. 11.)
F. More Medical Malfeasance
41. Other negative cases were reported by Dr. Jerry Walden, M.D., Plaintiffs' medical expert. Those cases were discovered by Dr. Walden as a product of 13 days of medical tour and inspection by by Dr. Walden in September and October 2005 and April and May 2006. (Pls.' Ex. 1B at 1.) Dr. Walden summarized these cases in his Report of July 10, 2006. (Id) 10 Here are some of the low lights of what Dr. Walden found.
FOOTNOTES
10 Plaintiffs have moved, post-hearing, to formally admit Plaintiffs' Exhibits 1A and 1B, which were discussed at length, without objection, in the hearing testimony, but not formally admitted. (Pls.' Tr. Br. 4 n.2.) This request will be granted. In so doing, the Court also formally receives all of the post-hearing submissions of the parties (de bene esse depositions and exhibits), expressly including Plaintiffs' Exhibit 5 (compilation of reports and documents pertinent to medical care), Plaintiffs' Attachment 1 to Trial Brief (a clarifying appendix meant to explain the prisoner medical references). Plaintiffs' Proffer (Dkt. No. 2218), the T.S. autopsy and toxicology reports, and all de bene esse depositions and documents filed by Defendants.
Should the Court of Appeals have cause to review this record later, it is also advised to consult the prisoner key presented during hearing. The prisoner key presented at hearing did contain some slight errors, which was resolved by revision of the key. (See Pls.' Tr. Br. 4 n.2.)
[**37] 42. Regarding cancer treatment, Dr. Walden had concern about four patient files which he did not have access to for review: patients 105, 106, 107 and 108. (Id. at 27.) He was, however, able to review the charts of four other prisoners which showed remarkable indifference to patient well-being. In patient number 109, the patient was seen as a follow-up for blood in the urine in February 2004. (Id.) His family history showed cancer on both sides of his family. (Id.) Thereafter, he regularly saw physicians because he could not sleep at night due to bladder pressure while he continued to have blood in his urine. (Id.) These many visits were treated as either over-active bladder or bladder infection. (Id.) Finally, on August 9, 2004, a physician noted the possibility of bladder malignancy and testing was done. (Id.) The testing was inconclusive while the patient continued to complain of pain and had persistent blood in the urine. (Id. at 27-28.) After continued complaints, he was seen by urology, who scheduled him for cystocopy and IVP testing. (Id.) The testing was eventually performed on October 18, 2004 and on October 19, 2004, the test results showed [**38] a 6 centimeter tumor on the bladder. (Id.) The tumor, once discovered, was too large to permit transurethral resection of the tumor (the less invasive technique) so in March 2005, surgeons removed the patient's bladder and created a new bladder from his bowel. (Id.) As of May 2006, the patient had lost over 50 pounds. (Id.) The patient also complained that after the bladder surgery, doctors had difficulty reaching a urologist to treat his bladder symptoms and nearly caused a serious medical complication. (Id.)
43. Patient 110 was another like case. He had recurrent bladder cancer and blood in the urine was ignored for a prolonged period. (Id.) It took some six months between the time that blood in the urine was noted and a urologist appointment was eventually completed. (Id.)
44. Patient 111 was diagnosed and treated for metastatic cancer. (Id.) Although he was treated, he was denied pain medication over a two month period, and this denial caused the cancellation of one of his cancer appointments. (Id.)
[*790] 45. Patient 112 was another patient who was treated for malignant rectal cancer. (Id.) According to Dr. Walden's Report, the care [**39] was delayed by some five years because cancer care was not given soon after he arrived in custody. (Id.) A colostomy was eventually performed. (Id.) Dr.Walden is of the opinion that patient 112 will likely die of such cancer. (Id.)
46. As for cardiology, Dr. Walden's Report likewise discusses approximately 20 problematic patient records from 2005. (Id. at 14-17, 21-22.) He found a like number of problematic cases for 2006. (Id. at 17-21.) A few selected cases are cited now as exemplary of the kinds of indifferent care delivered at the Hadix facilities.
47. Patient 44 had extreme hyperlipidemia. (Id. at 17.) He had triglyceride levels 10 times normal levels and cholesterol of 444. (Id.) He was not seen on an appointment for repeat testing. (Id.) When he was seen next, an EKG was ordered and showed a septal infarction with possible inferior ischemia. (Id.) The care providers did not treat either the hyperlipidemia or the unstable cardiac condition. (Id.)
48. Patient 48 had hypertension that was over-treated with multiple medications. (Id. at 18.) His blood pressure was not regularly monitored and vital signs were not being [**40] recorded in his record. (Id.) He also had bleeding in his intestinal tract that was being ignored, with no plan for either a colonoscopy or a gastroscopy. (Id.)
49. Patient 53 complained of chest pain with activity. (Id. at 20.) An EKG was performed which showed abnormal results. (Id.) At the time, the patient had a very elevated cholesterol and a history of a past catheterization and long-term tobacco and cocaine use. (Id.) No urgent care was scheduled. Dr. Walden's comment: "This man needs a stress test or an emergency room visit now." (Id.)
50. As for diabetic patients, notwithstanding the positive comments made above, Dr. Walden's report noted some continued problems in the treatment of hypoglycemia, brittle diabetics and other diabetics with uncontrolled treatment regimes. Dr. Walden devotes some ten pages of his Report to such cases. (Id. at 5-14.) The cases noted below are representative of serious Hadix treatment failures regarding treatment of hypoglycemia. Indeed, Dr. Hutchinson similarly testified that to his knowledge, there were three or four patient deaths at Hadix facilities due to complication of hypoglycemia (which is treatable [**41] if promptly recognized and treated) within the last two years. (Hutchinson Dep. 51.)
51. Dr. Walden's overall impression was, "I am still amazed that the need to prevent hypoglycemia hasn't been more effectively addressed by the administration and that CMS has not focused on this problem." (Pls. 'Ex. 1B at 5.) Dr. Walden noted some death cases due to hypoglycemia and further noted that although the policy is to treat all patients with blood sugar readings of less 50 mg/dl with intravenous glucose, this does not regularly occur. (Id.)
52. Patient 4 died of hypoglycemia. (Id. at 5-6.) He had a severe hypoglycemic reaction without any referral to a physician. (Id.) He later died of complications of a second instance of severe hypoglycemia. (Id.)
53. Patient 20 is a paraplegic who is wheelchair-bound. (Id. at 11.) His care was complicated by the fact that custody transport to specialist appointments sometimes left him unable to eat his meals and, thus, prone to hypoglycemia. (Id.)
54. Patient 22 had severe hypoglycemia on March 12, 2006 and was unconscious. (Id. at 12.) He was treated with IV glucose. (Id.) However, post-reaction [*791] adjustment [**42] to his regime did not occur consistent with community medical standards. (Id.)
55. Patient 25 is a dialysis patient with a recent history of severe hypoglycemia. (Id.) He was given a Glucagon injection (a chemical that induces the liver to produce glucose) for hypoglycemia on March 28, 2006. (Id.) This followed several earlier incidents of serious hypoglycemia. (Id.) On March 20, 2006 his blood glucose readings were 26, 31, 53 and 76 mg/dl, respectively, and he received two Glucagon injections. (Id.) At 11:55 p.m., staff was called to his cell when he was unresponsive and his blood sugar was 39 mg/dl; he then received his third Glucagon injection of the day. (Id.) He did not have successful follow-up care and Dr. Walden (who had warned Defendants) noted that his care had not improved as of June 14 (since he had other reactions on or about June 12). (Id.) This is clearly an example of a patient needing urgent specialist care whose needs have been under-served. (Id.)
56. Other serious patient care/treatment problems were noted in the following areas: access to health care (id. at 22-44); medical record deficiencies (id. at 24-25); treatment [**43] of methicillin-resistant staphlycoccus infections (id. at 25-27); dialysis care deficiencies (id. at 29-35); surgical care (id. at 35-36); custody treatment (id. at 36-39); nursing issues (id. at 39-41); and medication problems (id. at 41-42). Also remarkable in his Report are prolonged discussions of cases in which CMS delayed patient care and other cases in which delayed and/or negligent care were a factor in patient deaths. (Id. at 42-64.)
G. How Much to Make of a Bunch of Deaths
57. One of the issues repeated in the briefing and argument is the statistical question of how to treat the individual gross treatment failures. Defense counsel argues in part that the treatment failures do not show deliberate indifference to the "class as a whole." (Defs.' Tr. Br. 6.) The basis for this argument is given as Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996), a case in which the Supreme Court repelled a request for class-wide relief as to First Amendment access violations because only two actual deprivations to class members were shown and the "constitutional violation has not been shown to be systemwide . . . ." Lewis, 518 U.S. at 360.
[**44] 58. When the Supreme Court made that announcement, it most assuredly did not mean that every class member must be a victim of a violation for system-wide relief to stand. What it did mean was that occasional violations which are not rooted in systemic causes, do not warrant system-wide relief. As an example, the number of inmates with untreated cancer at any given month is small as a percentage of the total prison population (between 10 to 50 at the Hadix facilities as an example). However, the systemic failure to timely treat those persons is clear from the statistics given that there was a 30 to 40 percent delay rate past the physician assigned deadlines for timely care of prisoners generally and a similar rate of delay for cancer patients. Furthermore, the rate of non-care and delayed care is even higher given that the record reflects that physicians were often not protective enough of the right to treatment in assigning treatment dates, and often failed to take the initial diagnostic steps necessary to promptly diagnose cancer. Many deaths have occurred because of such systemic failures, and these failures have occurred in regular treatment patterns (e.g., deaths due [**45] to delinquent treatment of hypoglycemia, delinquent treatment of dialysis patients, etc.)
[*792] 59. The testimony of Dr. Creekmore, explained at length in the Court's November 13, 2006 Opinion and adopted here by reference, likewise supports a conclusion that Defendants' malfeasance was systemic. This is particularly so given the history of a facility which has not met constitutional standards repeatedly. Defendants may wish that by simply pointing out an obvious red herring--that most people are not sick most of the time regardless of their medical treatment--they may wish away their involvement in this suit. It is not so. Wake up Dorothy. You are not in Kansas anymore. 11
FOOTNOTES
11 Apologies to Noel Langley, lead author of the 1939 screenplay, The Wizard of Oz.
H. Work Without Workers
60. Apart from the individual case failures explained above, even Defendants' staff has testified that staffing and related facility failures are making the job of delivering timely and necessary medical care untenable. [**46] Debbie Roth, the Director of Nursing, testified that she had current staff vacancies (which were being addressed by temporarily using nurses from other facilities) and also that even if all vacancies were filled, the full staff complement would have difficulty in performing assigned work due to the sheer volume and complexity of the work. "If I was fully staffed in all my facilities, it would still be difficult for the nurses to keep up with the workload. . . . We need more allotted staff positions, and we need more staff, both." (Roth Dep. 50.)
61. Regarding the SMT facility. Roth testified that she needed "two additional R.N.S for the day shift, two on the afternoon shift and one on the night shift." (Id. at 51.) She also testified that additional staff was necessary to cover vacation and sick leave for regular staff. (Id.) Regarding JMF, she testified that three additional staff positions were necessary and a third night-shift nurse would also be beneficial. (Id. at 52.) Similarly, she testified that RGC needed three additional staff nurses, though not a night-time nurse given that RGC involves short-term prisoner stays, shorter daily hours of operation, and a smaller [**47] percentage of very sick inmates. (Id. at 52-53.)
62. These opinions were shared by Dr Cohen both about nursing and physician staffing. Dr. Cohen testified:
There have been critical nursing and physician shortages at the Hadix facilities over the last six months. During a three month period, [in JMF] there were only two physicians and one physician assistant on limited duty providing care. This situation exist[ed] almost through September and resulted in extreme delays in physician review of abnormal laboratory studies, especially consultations and their ability to see nurse referrals from sick call and kite evaluation. The inadequate physician staffing compromises the ability of nurses to refer patients for M.D. evaluation and schedules were so packed in September that physicians at JMF could not follow-up on their own patients because their schedules were so filled up for weeks . . . ahead.
Correctional Medical Services has been aware for a long time that they have been unsuccessful [in] recruiting and retaining physicians in the Hadix facilities, and this is documented in the minutes between CMS and MDOC, but they have not taken yet the necessary [**48] action to provide direct employment, including benefits, accrued vacations, and health insurance to the vast majority of their physician employees. If they do so, they would become much more competitive and would have access to a large pool of board certified physicians whose immigration status requires them to [*793] have full-time jobs in order to remain in this country.
Nursing staffing in the Hadix facilities has been in disarray. The fact that in September just as these hearings were approaching the nursing staff was three days behind in their evaluation of kites is due to the inadequate number of nursing staff?..
(T.T., vol. III, 580-82.)
63. Dr. Cohen's comments about the kite system are important to understand. The kite system is utilized by prisoners to communicate important requests for services, advice and medicine. Typical kites might ask for a prescription refill, indicate that a prisoner needs to see a physician regarding an ailment or ask for clarification regarding medical advice or a treatment regime for the prisoner. When these requests go unanswered, particularly as to a chronically-ill population dependent on daily medications and treatment advice, [**49] they create the real possibility of patient injury and death. Dr. Cohen discovered during one of his September tours that JMF nursing staff were three days behind in responding to kites and notified MDOC administrative staff. Debbie Roth, following up on Dr. Cohen's investigation, received confirmation from a substitute RN (one drafted from another facility) that there was a three-day-old stack of kites to be reviewed. (Roth Dep. 48.) Roth then drafted still other staff, two RNS from other facilities, to address the three-day backlog of kites at JMF, but could not reduce staffing at other facilities for any prolonged period due to the needs at those facilities. (Id. at 48-50.) In other words, the conditions that caused this problem have persisted and make repetition of this and other critical problems likely.
64. A related staffing issue is the use of LPNs almost exclusively at the Hadix facilities to meet required staffing. Fifty percent of the RN staffing is provided by contract staffing. (Roth Dep. 70.) Of that group, 60 percent are LPNs, even though they are assigned to replace RNs. (Id. at 55.) This has resulted in the use of LPNs to take action on prison kites, [**50] actions which they are not qualified to perform in some cases. (Id.) This situation contradicts Defendants' previous representations that prisoner kites were being reviewed exclusively by RNs. (See 2002 Findings at P 89.) The medication kites that the LPNs review typically may have symptom components (e.g., I need more inhalers because I used them too quickly).
65. Craig Hutchinson, M.D., of CMS had a somewhat less dire opinion about the staffing inadequacies. He viewed the Hadix facilities as 92-93 percent fully staffed though "I haven't done an accounting of the hours . . . ." (Hutchinson Dep. 23.) In Hutchinson's opinion, the only physician shortage was the failure to obtain one physician for RGC (who needed to be replaced due to recent retirement), Defs.' Tr. Br. 7, and additional physician hours for the dialysis unit. (Hutchinson Dep. 23.) He explained that this shortage was due to the fact that the hiring was to be done by Dr. Deon Middlebrook (the nephrologist who provides hours at the dialysis unit and who works for CMS as an independent contractor with his physician employees). (Hutchinson Dep. 17, 23-26.) More particularly, he explained that the unfilled [**51] physician hours were due to the fact that one of Dr. Middlebrook's physician hires dropped out after he attended CMS orientation. (Id.) According to Dr. Hutchinson, Dr. Middlebrook is still attempting to hire for those hours. (Id.) Defendants' briefing admits that the dialysis unit is understaffed, but argues that the under-staffing does not jeopardize patient health and asks for an opportunity to present supporting testimony at hearing in January. (Defs.' Tr. Br. 8.) Defendants' briefing does not explicitly comment on the absence of nurse staffing, [*794] presumably because Plaintiffs' motion had specifically requested additional physician staffing only. (See Defs.' Tr. Br. 5-6.)
66. Defendants have submitted the De Bene Esse Deposition of Barbara Hladki on the subject of their hiring plans. According to her testimony, she has received tentative administrative approval for two additional LPNs and a third position (either a nurse or pharmacy technician) for JMF. (Hladki De Bene Esse Dep. at 33-34.) Hladki speculated that the "spending plan" would be approved in committee the next week and then she would be authorized to seek the new staff in January. (Id.) Hladki [**52] explained that it would take another two weeks to one month to fill the positions, but she did not explain in her answer why past openings had not been readily filled. (Id.) Indeed, defense counsel in the briefing accuses the Court and the media of making these positions difficult to fill, and says that one-half of recent applicants have cancelled interviews. (Defs.' Tr. Br. 7.) As of November 2, 2006, JMF had five nursing vacancies out of 13 allocated positions. (Hladki De Bene Esse Dep. 36.) RGC had one vacancy out of seven allocated positions. (Id. at 37.) Parnall had one vacancy out of seven allocated positions. (Id.)
67. Interestingly, the testimony of Dr. Hutchinson and Barbara Hladki assumed the staffing of JMF was adequate even if not compliant with the Court-ordered Plan. The Plan set the minimum staff levels for JMF at four physicians and one mid-level provider. (Plan at 20.) This staffing was in addition to other additional staff for other parts of the Hadix facilities, including new staffing of the dialysis unit. (Plan at 19-20.) Defendants admit that they have not complied with this requirement--having employed only three physicians and one physician's [**53] assistant. (Defs.' Resp., Dkt. No. 2219, at 10.) They deem this as a sufficiently good-faith response even though no permission to deviate from the Plan was ever sought or extended.
I. Workers Without Computers
68. One important side alley discussed during the recent hearing involves the implementation of the SERAPIS system--which was a requirement of the Preliminary Injunction. As specified above, the Preliminary Injunction required the expansion of SERAPIS to lab reports, the pharmacy and DWH, but did not provide an exact deadline for completion. This requirement was not an idle one. Since a landmark report of the Institute of Medicine of the National Academy of Sciences, the medical profession generally has recognized that an electronic medical record is the preferred method of recording keeping for health care in order to reduce errors associated with handwriting, prevent medication errors, expedite service and facilitate stable and remote access to patient records. See Institute of Medicine, The Computer-Based Patient Record: An Essential Technology for Health Care (National Academy Press 1991); see also Institute of Medicine, To Err is Human: Building [**54] a Safer Health System (National Academy Press 2000) (discussing cost in lives of medical error and strategies for prevention). As Dr. Cohen put it in his testimony, "You have to . . . do it, otherwise you end up with the charts which are unreadable and have bad effects" (T.T., vol. III, at 586.) Another huge advantage of the technology is that it allows one to rapidly search a patient record for pertinent information. (Pramsteller De Bene Esse Dep. 13.)
69. Furthermore, it appears that Defendants agree that the expansion of SERAPIS or a SERAPIS compatible system to all parts of the Hadix facilities, including records for in-patient care at C-Unit and DWH, is an important goal which must be [*795] met soon. (See Greifinger T.T., vol. III, 468-71) It is possible to use SERAPIS for all ambulatory care, lab studies and prescriptions, but the system is not configured for in-patient care at C-Unit or DWH because it does not accommodate nursing notes. (Id.) Defendants are presently working at finding a SERAPIS-compatible system which can be used for in-patient care and which has connectivity to Foote Hospital, the Jackson public hospital where prisoners are often transferred [**55] when care is not appropriate or available at DWH. (Id) According to the De Bene Esse Deposition of Richard Russell, the process of working toward an in-patient electronic record envisions making such record compatible with regional electronic medical records (such as those maintained by the Department of Community Health and the Veterans Administration) and is well underway. (Russell De Bene Esse Dep. 29-36.)
70. Defendants were late to the game in both their overall program and in instituting the Court-ordered expansion, beginning some of that work only this fall. (Hladki De Bene Esse Dep. 38.) Nevertheless, Hladki promises that implementation of SERAPIS at DWH and C-Unit regarding lab orders and prescriptions (but not as to in-patient care records) will be completed by January 2007. (Id. at 9-10.) Defendants also are presently working to ensure that PharmaCorr will have connectivity with SERAPIS by the end of January 2007. No promises were made about the participation of certain specialty care providers, such as Dr. Middlebrook, who have not used SERAPIS, (see Pramsteller De Bene Esse Dep. 40.), and whose future participation is likely to be limited [**56] to instructing others to use the system on their behalf. Older specialists who provide valuable services (e.g., care of a large number of dialysis patients) must be handled with some care, however, to coax them into the system without alienating their services. Such a loss might be catastrophic for patients. 12
FOOTNOTES
12 Plaintiffs are none too complimentary of Dr. Middlebrook and their concern is shared to some degree by Defendants' Medical Director, Dr. Pramsteller. (See Pramsteller De Bene Esse Dep. 37.) With that said, since Dr. Middlebrook and his practice group are providing extensive services to the dialysis unit, and since it may be very difficult to replace those services and the loss of the services even temporarily might cause patient deaths, care must be given to that relationship.
II. CONCLUSIONS OF LAW
A. LEGAL STANDARDS
1. Contempt Standards
71. The standards for adjudicating civil contempt were given by the Sixth Circuit Court of Appeals in Glover v. Johnson, 138 F.3d 229 (6th Cir. 1998) [**57] as follows:
In a civil contempt proceeding, the petitioner must prove by clear and convincing evidence that the respondent violated the courts prior order.
A litigant may be held in contempt if his adversary shows by clear and convincing evidence that "he violated a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court's order." Id. at 707 (citation omitted). It is the petitioners burden-here, the plaintiffs-to make a prima facie showing of a violation, and it is then the responding party's burden to prove an inability to comply. See Huber v. Marine Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995). This court has explained:
The test is not whether defendants made a good faith effort at compliance but whether "the defendants took all reasonable steps within their power to comply with the court's order." [*796] Good faith is not a defense to civil contempt. Conversely, impossibility would be a defense to contempt, but the Department had the burden of proving impossibility, and that burden is difficult to meet. Although diligence is relevant to the question of ability [**58] to comply, the Department's evidence of diligence alone does not satisfy that burden." Inability to comply would be a defense -- but defendants would be expected -- to show this categorically and in detail.' "
Glover, 138 F.3d at 244 (quoting Glover v. Johnson, 934 F.2d 703, 708 (6th Cir. 1991) (internal citations omitted)).
72. As noted above, the exercise of contempt powers is a dire exercise and one requiring all manner of fair and due process to respondents. The exercise of contempt powers is also, however, a necessary part of any judicial system of courts of general jurisdiction. See Bridges v. State of Cal, 314 U.S. 252, 285, 62 S. Ct. 190, 86 L. Ed. 192 (1941) (citing United States v. Hudson, 11 U.S. 32, 34, 3 L. Ed. 259 (1812)). Without that power, courts would lose their legitimacy and watch idly as their decrees furnished only morbid entertainment to those willing to disregard them.
73. When a civil contempt finding is made, the question becomes what sanctions are sufficient but not excessive to coercive the ordered conduct. In considering civil contempt sanctions, the Court may consider such penalties as coercive imprisonment, [**59] see, e.g., Matter of Campbell, 761 F.2d 1181, 1184 (6th Cir. 1985), and coercive and conditional fines, see, e.g., United States v. Work Wear Corp., 602 F.2d 110, 116 n.14 (6th Cir. 1979); see also In re Special Proceedings, 373 F.3d 37, 46 (1st Cir. 2004); United States v. Mongelli, 2 F.3d 29 (2d Cir. 1993) (affirming coercive fines of $ 10,000 a day).
2. Eighth Amendment Standards
74. "Deliberate indifference to serious medical needs" violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The Eighth Amendment standard has both objective and subjective components. Id. Thus, to be liable, a defendant must know of and disregard an excessive risk to prisoner health or safety. Farmer, 511 U.S. at 837. However, in an injunctive case, proof of the subjective component is straightforward:
In this case, we are concerned with future conduct to correct prison conditions. If these conditions are found to be objectively unconstitutional, then that finding would also satisfy the subjective [**60] prong because the same information that would lead to the court's conclusion was available to the prison officials.
Hadix v. Johnson, 367 F.3d 513, 526 (6th Cir. 2004).
75. One of the cases cited with approval in Farmer was the Supreme Court's previous decision in Helling v. McKinney, 509 U.S. 25, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993). Helling said the following about future threats of injury:
It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Two of them were cited with approval in Rhodes v. Chapman, 452 U.S. 337, 352, n. 17, 101 S. Ct. 2392, 69 L. Ed. 2d 59 . . . (1981). Gates v. Collier, 501 F.2d 1291 (CA5 1974), held that inmates were entitled to relief under the Eighth Amendment when they proved threats to personal safety from [*797] exposed electrical wiring, deficient firefighting measures, and the mingling of inmates with serious contagious diseases with other prison inmates. Ramos v. Lamm, 639 F.2d 559, 572 (CA10 1980), [**61] stated that a prisoner need not wait until he is actually assaulted before obtaining relief.
Helling v. McKinney, 509 U.S. 25, 33-34, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993).
76. To explain this matter in the vernacular, a prisoner who receives a sentence of 2-10 years, deserves to do 2-10 years. What he does not deserve is a de facto and unauthorized death penalty at the hands of a callous and dysfunctional health care system that regularly fails to treat life-threatening illness.
3. PLRA Standards
77. As to the injunction requests, the controlling legal standards are the Eighth Amendment legal standards explained above, when combined with the PLRA injunction standards applicable under 18 U.S.C. § 3626(a)(1) in prison condition cases and the injunction standards explained below. However, the PLRA on its face and in its meaning does not apply to contempt requests. Jones'El v. Berge, 374 F.3d 541, 545 (7th Cir. 2004); Essex County Jail Annex Inmates v. Terffinger, 18 F. Supp. 2d 445, 462 (D.N.J. 1998). Section 3626(a), which was enacted as section 802(a) of the PLRA, states in pertinent part:
Prospective relief [**62] in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal Justice system caused by the relief.
18 U.S.C. § 3626(a)(1).
4. Permanent Injunction Standards
78. Since this determination represents a final adjudication of Plaintiffs' requests for injunctive relief, following the earlier Preliminary Injunction hearing, the standards require final findings as to whether Plaintiffs have clearly shown an entitlement to relief on the merits and whether an injunction is necessary to prevent irreparable harm. The following case law explains the pertinent standards.
79. In Weinberger v. Romero-Barcelo, the Supreme Court gave an able [**63] explanation of the controlling legal standards as follows:
It goes without saying that an injunction is an equitable remedy. It "is not a remedy which issues as of course," Harrisonville v. W.S. Dickey Clay Mfg. Co, 289 U.S. 334, 337-338, 53 S. Ct. 602, 77 L. Ed. 1208 . . . (1933), or "to restrain an act the injurious consequences of which are merely trifling." Consolidated Canal Co. v. Mesa Canal Co, 177 U.S. 296, 302, 20 S. Ct. 628, 44 L. Ed. 777 . . . (1900). An injunction should issue only where the intervention of a court of equity "is essential in order effectually to protect property rights against injuries otherwise irremediable." Cavanaugh v. Looney, 248 U.S. 453, 456, 39 S. Ct. 142, 63 L. Ed. 354 . . . (1919). The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies. Rondeau v. Mosinee Paper Corp, 422 U.S. 49, 61, 95 S.Ct. 2069, 2077, 45 L.Ed.2d 12 (1975); Sampson v. Murray, 415 U.S. 61, 88, [*798] 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507, 79 S.Ct. 948, 954-955, 3 L.Ed.2d 988 (1959); Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 591. [**64]
Where plaintiff and defendant present competing claims of injury, the traditional function of equity has been to arrive at a "nice adjustment and reconciliation" between the competing claims, Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 592. In such cases, the court "balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction." Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 675, 88 L.Ed. 834 (1944). "The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mold each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it" Hecht Co. v. Bowles, supra, 321 U.S., at 329, 64 S.Ct., at 592.
In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Railroad Commn. v. Pullman Co, 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941).
Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982). See also [**65] Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998); City of Parma v. Levi, 536 F.2d 133, 135 (6th Cir. 1976). As implied above, and consistent with the PLRA, injunctive relief involving matters subject to state regulation may be no broader than necessary to remedy the constitutional violation. See Knop v. Johnson, 977 F.2d 996, 1008 (6th Cir. 1992)
80. While saying so, the Supreme Court in Weinberger also explained the importance of the legal principles which give rise to equity jurisdiction:
Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. "The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.'
Weinberger, 456 U.S. at 313 (citation omitted).
81. The Court also concurs with the argument of Plaintiffs' counsel that [**66] where previous violations have been adjudicated, then a presumption of further injury inures to Plaintiffs' benefit. See Thompson v. City of Los Angeles, 885 F.2d 1439, 1449 (9th Cir. 1989); Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir. 2003); NAACP v. Duval County Sch., 273 F.3d 960, 988-89 (11th Cir. 2001). While the Court agrees with this proposition, this agreement does not in any way affect the outcome of this suit, which would be the same regardless of the presumption in light of the record.
B. CONTEMPT ANALYSIS
82. Plaintiffs have requested contempt regarding six provisions of the Plan (as adopted and approved by the later Order). 13 The non-compliance at issue concerns: (1) the requirement that Defendants [*799] enhance their mortality review by the use of outside reviewers; (2) the requirement that Defendants pursue other options to obtain autopsy results; (3) the requirement that Defendants assure there is a prompt review of all specialist reports; (4) the requirement that Defendants assure that medications and laboratory studies be entered in SERAPIS at DWH; (5) the requirement of additional physician staffing [**67] at JMF; and the (6) the failure to assure a full time equivalent nephrologist or internist for the dialysis unit. Plaintiffs ask for a finding of contempt on each issue and entry of a coercive fine.
FOOTNOTES
13 Plaintiffs made a seventh request in their moving papers, but have since withdrawn it. (Pls.' Tr. Br., Dkt. No. 2216, at 2 n.1.)
1. Mortality Review Process
83. The October 19, 2005 Preliminary Injunction required Defendants to submit a plan to accomplish various objectives, including, to "provide for assessment and medical review of all prisoner patient deaths . . . ." (Prelim. Inj. 2.) Defendants then submitted their Plan which provided: "Defendants intend to enhance their mortality review process through the use of outside professional reviewers who will provide a timely and complete review of all patient deaths . . . ." (Plan 2) (emphasis added.) On January 12, 2006, Defendants' Plan was approved by Order of the Court, with revisions not relevant to the above provision. (Order of Jan. 12, 2006 at [**68] 1)
84. As to compliance, Defendants' Revised May Compliance Report stated in pertinent part,
While Defendants have not ruled out the use of an outside agency to conduct mortality reviews, it has become apparent that prior to following through with outside reviews the Department needs to streamline the internal review process so that the review occurs closer to the event.
(Rev. May 2006 Compliance Report 2.) Barbara Hladki later wrote in August 2006 to Plaintiffs to indicate that this objective "is not being aggressively pursued at this time." (Br. in Supp. of Mot. to Show Cause, Attach. 1 at 4 + Attach. 2.) Defendants never did accomplish the outside review objective, but did, however, increase the speed of its internal regional review of mortality cases.
85. Contempt sanctions are inappropriate in this instance. The Plan language was worded vaguely and in terms of Defendants' "intent" as opposed to a specific requirement to accomplished a set objective within a set time frame. Defendants have made some progress in their internal review and it cannot be said that they have violated a "clear and specific" order by clear and convincing evidence.
2. Autopsy [**69] Reports
86. The Plan language provides in pertinent part:
By statute, the need for an autopsy in Michigan is the sole determination of the County Medical Examiner, the prisoners family, and in some cases may be requested by two or more registered voters in the county. It is not always possible to obtain an autopsy as this is not in the control of the Defendants. The Defendants will request an autopsy for all unexpected deaths. The Defendants are also pursuing other options to be able to obtain an autopsy in all cases.
(Plan 13.) (emphasis added.)
87. Plaintiffs contend in their Motion that Defendants have violated the underscored language because no "other options" are being pursued. (Pls.' Br. 3.) The statutory authority referenced by Defendants in the Plan, assigning authority to the County Medical Examiner, is found at Mich. Comp. Laws §§ 52.202-52.207. The County Medical Examiner is required by statute to conduct investigations (investigations are preliminary to autopsies under § 52.205) in cases of "unexpected deaths," [*800] deaths without "medical attendance," and in other circumstances listed in the statute. See Mich. Comp. Laws § 52.202. Other [**70] physicians are required to alert the Medical Examiner when the physicians believe that an "unexpected death" or other statutory circumstance warrants investigation. Michigan Compiled Laws § 52.207 also mandates investigation by the medical examiner upon a petition by "six electors" of a county. However, investigation is preliminary to autopsy and does not eliminate the medical examiners discretion. The medical examiner of Jackson County, according to the hearing evidence, has determined as matter of his discretion not to routinely do such autopsies, even when he has received requests, due to dangers of blood-borne disease. (Hutchinson De Bene Esse Dep. 9-10.)
88. In this instance, contempt sanctions are not warranted. The requirement of the pursuit of "other options" is vague, does not require specific conduct, and it is difficult to discern on this record what, if any, further conduct would result in additional autopsies. Therefore, this request is denied.
3. Processing of Handwritten Specialist Reports
89. The Plan requires that "Defendants shall ensure that there is a prompt review of all specialist reports (both handwritten and dictated) . . ." (Plan 15.) The [**71] Plan also says that "CMS should not 'pend' consultation while awaiting dictated consults . . . ." (Id.) Notwithstanding, the record does show that on rare occasions, certain CMS' doctors pend specialty consultations while awaiting their dictation of handwritten notes. (See Pls.' Tr. Br., Dkt. No. 2216, at 9-10, citing references to Pls.' Exs. 88 & 89.) The rate of these pending consults was relatively rare, though, approximating only two per month, with violations not reported every month. (Id.)
90. This rate (though still requiring improvement) represents a very dramatic improvement from pre-Plan levels. The improvement is explained by the work of Dr. Mattai who now regularly checks all "pended" decisions with the objective of eliminating the practice as far as possible. (Mattai Dep. 24-29.) The remaining delays are explained as a product of requests by CMS for more information as to the requested consultations to determine whether the services were medically necessary. (Hutchinson Dep. 19-22.) The record further shows that Dr. Mattai is taking steps to help assure that these rare events do not negatively impact patient care. (Mattai Dep. 24-29.)
91. Upon review [**72] of such record, and in light of the substantial improvement and substantial compliance with the Plan, the Court finds that contempt sanctions are not appropriate as to this issue.
4. SERAPIS--Medication and Lab Orders at DWH
92. The Plan required that Defendants "[e]xpand the SERAPIS system to include all clinical areas . . . including. . . DWH. . . ." No deadline was established. Barbara Hladki's August 30, 2006 response to Plaintiffs indicates that progress has been made on the general goal, but there is not compliance as to DWH medication and lab orders. (Pls.' Br. in Supp. of Mot. for Order to Show Cause, Attach. 1 at 4.) As noted above, Ms. Hladki's most recent testimony is that the process of SERAPIS implementation for labs and medications is now underway and is expected to be completed by January 2007.
93. Plaintiffs argue the case of Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995), which held that the failure of an order to set a "doomsday" did not prevent enforcement in the absence of prompt compliance. That case involved [*801] the imposition of a dismissal order due to non-compliance with a discovery order. Notwithstanding, [**73] the more germane case is probably the case of Armstrong v. Executive Office of the President, Office of Admin, 303 U.S. App. D.C. 107, 1 F.3d 1274, 1277 (DC. Cir. 1993). In Armstrong, the district court ordered the Executive Office to issue new policy without a deadline and held the Executive Office in contempt for failing to do so in a four-month period, but the D.C. Circuit reversed because the underlying order did not contain a deadline.
94. The reason that the Armstrong case is more germane is that it involved the kind of task at issue here-a complicated administrative task that may take extended administrative work, consultation with others, etc. An order absent a deadline is not meaningless. Rather, the best construction of such an order is that it requires action within a "reasonable time." However, since a "reasonable time" is such a broad and flexible concept as applied to complex administrative and technical tasks, the conclusion follows that there has been no showing of a clear violation of a "clear and definite" order as to this element of the Plan.
5. JMF Hiring
95. Defendants were ordered to increase staffing at JMF to cover new clinical responsibilities [**74] for the dialysis program and to increase staffing at JMF to serve prisoners in segregation. (Plan 21 -22.) These are separate and independent requirements. (Id.) Staffing of JMF was to include "four physicians and one mid-level [provider]." (Id.) Defendants have not provided these staffing levels. According to Plaintiffs' Brief, Defendants were only providing two physicians and one mid-level provider at JMF as of mid-August 2006, and Dr. Cohen viewed this failure as critical. (Pls.' Br. 5.) Barbara Hladki's August 30, 2006 Response showed additional staffing--i.e., three physicians and one mid-level provider at JMF, (Id., Attach. 1 at 2), though this is still short of the required staffing levels. Another problem noted in the briefing is that the mid-level provider is restricted and cannot see patients with certain communicable diseases. (Id. at 5 n.2.)
96. Defendants' post-trial briefing likewise admits the short staffing levels. (Defs.' Resp., Dkt. No. 2219, at 10.) The briefing is a bit disingenuous in that it implies that additional dialysis staffing (which is a separate element of the Plan) may be counted toward meeting the five provider limit (which [**75] was clearly not the intent of the Plan). However, even if the dialysis staffing is counted, the staff is still short as the briefing admits. (Id.) Defendants' argue that this was "substantial compliance" with the Plan and that "[o]ne MSP for 69 patients is a very low patient to MSP ratio." 14
FOOTNOTES
14 This argument fails to appreciate that staffing levels at the Hadix facilities must be much lower than staffing levels at other facilities because the MDOC elects (due to the presence of the dialysis unit and DWH) to send its sickest prisoners to the Hadix facilities. Indeed, the record shows that physician schedules for September 2006 were so packed that inmates were scheduled several weeks out to be seen regarding health concerns. (T.T., vol. III, at 581.)
97. Arguments about the necessity of the services, of course, are not germane. The train long ago left the station on whether the additional staffing was necessary--when Defendants agreed to the Plan and failed to challenge its implementation and [**76] enforcement. The staffing is not in substantial compliance because the Plan promised five full-time MSPs and what is presently being provided are four full-time MSPs. This situation is also distinguished from the SERAPIS situation mentioned [*802] above in that the hiring of an additional physician is not a complicated matter. It is a matter of simply placing an advertisement and offering sufficient compensation and benefits to attract capable candidates. Such hiring is routinely done by the MDOC in short-time frames, such as 30 days. (See Hladki De Bene Esse Dep. at 33-34.) The record does not show that the hiring was not done due to difficulty of finding a qualified applicant or confusion about a deadline. Rather, it shows that the hiring was not done because Defendants made a deliberate choice not to comply with the requirement. This is contemptuous and demands a finding of civil contempt and an appropriate civil contempt remedy.
98. Defendants are held in civil contempt for failing to meet this staffing obligation. To remedy this contempt, the Court makes the following coercive sanctions: Defendants are fined $ 1 million dollars, the payment of which is suspended for a period [**77] of 120 days from entry of the contempt sanction. If within the 120 day period the additional staffing is engaged, then Defendants shall file a sworn true affidavit with the Court so testifying, which shall have the effect of exonerating the fine. 15 Additionally, to ensure prompt hiring, Defendants shall do the following: If an applicant is not engaged within the first month of advertisement, then starting on the first day of the second month, they shall increase the offered compensation and/or benefits by a factor of 30 percent in whatever manner they deem fit. 16 Every month thereafter that the position remains open, the offered compensation and/or benefits shall be increased by another factor of 30 percent vis-a-vis the first month amount until hiring is completed. If the position remains unfilled for more than 120 days, in addition to the million dollar sanction, an additional sanction of $ 10,000 per day shall be assessed for every day the position remains unfilled. It is not hard to fill a physician position, you simply have to try.
FOOTNOTES
15 Of course, a false certification would not exonerate the fine and, should a false certification be filed, then Plaintiffs may move both to enforce the payment of the contempt sanction and for additional sanctions against Defendants and/or the affiant. [**78]
16 The Court does share Dr. Cohen's opinion that enhanced benefits is the best manner for maintaining a long-term workforce. This is because, in the past, some care providers have left CMS' employment due to absence of health insurance. However, in saying so, the Court leaves the issue of compensation and benefits solely to Defendants and CMS.
6. Full Time Physician at the Dialysis Unit
99. This Court's Order of January 12, 2006 specifically amended Defendants' Plan to require that Defendants employ an additional internist or nephrologist such that the total hours of that person and Dr. Middlebrook in the dialysis unit would equal the hours of a full-time physician. (Order of Jan. 12, 2006 at P 2(d).) No specific deadline for compliance was given. This requirement was deemed a separate requirement from the other JMF staffing because the physician hired would have to have fluency in nephrology and because additional services would have be dedicated solely to nephrology. Defendants have employed an internist who works 20-hours a week in the unit and Dr. Middlebrook or his partner work [**79] another eight to 12 hours per month in dialysis. (Pls.' Ex. 109C at 3.) This is far short of the 40-hour requirement. The average has been 24 hours per week. (Defs.' Resp., Dkt. No. 2219, 13.) There are also significant questions about whether the physicians even work as many hours as credited them. (T.T., vol. III, at 582-83.) These failures are significant because [*803] the dialysis unit serves approximately 75 patients with end-stage renal disease and other significant chronic diseases which complicate their treatment. 17 (Third Report of the Assoc. Monitor 53.) These patients need timely and effective service on a regular basis to simply stay alive until the next round of dialysis.
FOOTNOTES
17 Defendants put the current number at 69, which may or may not be accurate. (See Defs.' Resp., Dkt. No. 2219, 13.)
100. Defendants argue in their briefing that there has been substantial compliance with the Plan and Order, not because they have hired sufficient physician hours, but because the dialysis patients are being [**80] sufficiently treated by the combination of available physician hours and the services of outside specialists to whom the patients are referred offsite. 18 While the Court appreciates that Defendants are using an outside specialist to increase the percentage of patients with fistulas as opposed to shunts, given the unnecessary suffering and complications shunts cause, the Court has not asked them their opinion about the adequacy of their care. The Court has asked them why they are not complying with the Plan and Order which were neither stayed or appealed. Their answer of "substantial compliance" as to this staffing is a bare fig leaf hiding a gaping chasm. This argument assumes that 16 hours of physician services per week is not an important commodity to dialysis patients requiring regular, life-sustaining care. Like the issue of JMF staffing, this staffing requirement was sufficiently explained and required minimal effort to accomplish. The clear failure to accomplish it, whether due to the assignment of the task to the unmotivated or the simple refusal of Defendants to comply, requires a finding of contempt.
FOOTNOTES
18 There is, however, a significant problem as to offsite services. Although offsite services are appropriate as to occasional services which are not emergent, as to emergency services and those which are regularly performed (care pertinent to bi-weekly dialysis), the lack of rapid and regular availability forecloses essential services from being performed and creates grave risks to patient health.
[**81] 101. Defendants are held in civil contempt for failing to meet this staffing obligation. To remedy this contempt, the Court makes the following coercive sanctions: Defendants are fined $ 1 million dollars, the payment of which is suspended for a period of 120 days from entry of the contempt sanction. 19 If within the 120 day period the additional staffing is engaged, then Defendants shall file a sworn true affidavit with the Court so testifying, which shall have the effect of exonerating the fine. 20 Additionally, to ensure prompt hiring, Defendants shall do the following: If an applicant is not engaged within the first month of advertisement, then starting on the first day of the second month, they shall increase the offered compensation and/or benefits by a factor of 30 percent in whatever manner they deem fit. Every month thereafter that the position remains open, the offered compensation and/or benefits shall be increased by another factor of 30 percent vis-a-vis the first month amount until hiring is completed. If the position remains unfilled for more than 120 days, in addition to the million dollar sanction, an additional sanction of $ 10,000 per day shall be assessed [**82] for every day the [*804] position remains unfilled. Try, try, try again.
FOOTNOTES
19 Lest Defendants be confused, this is a separate million dollars from that expressed in the previous contempt finding.
20 Of course, a false certification would not exonerate the fine and, should a false certification be filed, then Plaintiffs may move both to enforce the payment of the contempt sanction and for additional sanctions against Defendants and/or the affiant.
C. INJUNCTION ANALYSIS
1. Plan and Order Terms
102. There seems to be no real disagreement between the parties that the Plan and Order adopting it should continue. As Defendants put it, "Defendants have been implementing its provisions . . . [and] are now beginning to see the benefits of many of those implemented Plan provisions . . . ." (Defs.' Tr. Br. 1.) Plaintiffs' position is that "[s]ince the approval of Defendants' Plan, many of its provisions have proven insufficiently rigorous to prevent continued denials of necessary medical care to [**83] the Plaintiff class." (Pls.' Tr. Br., Dkt. No. 2217, at 2.) "Plaintiffs urge the Court to require additional modification of the current Defendants' Plan." (Id.) Defendants, to the contrary, "oppose Plaintiffs' requests for further relief as unwarranted by the facts and as an overly intrusive interference with and encumbrance of the already difficult task of administrating health care services in the Hadix facilities." (Defs.' Tr. Br., Dkt. No. 2220, at 1.)
103. Given the history of the Plan and implementation Order and the record evidence, including evidence of preventable death, illness and suffering which prompted them, the Court finds that (1) continuation of the Plan and Order provisions is necessary to prevent irreparable injury and violations of the Eighth Amendment as to class members-including, unnecessary and preventable death, illness and suffering--due to systemic causes; and (2) there is no legal remedy available to address the interests sought to be protected. Furthermore, continuation of these provisions are consistent with the PLRA provisions. The Plan was authored jointly by Defendants and others, and its implementation has been welcomed by Defendants [**84] as a means of improving care, and is not an overly intrusive action which would contradict the PLRA requirements. In so approving it, the Court makes one initial modification of the Plan, which is supported by the testimony of Dr. Cohen at hearing. (See T.T., vol. III, at 586.) That is, the Court will require the final implementation of the SERAPIS as to lab orders and medications at DWH and as to the PharmaCorr pharmacy system to be completed by February 1, 2007. Defendants have already promised in their briefing that SERAPIS will be completed by that date, so the practical effect of this Order is only to prevent against the kind of back-sliding which Dr. Cohen warned could have seriously adverse patient consequences.
2. JMF Staffing, Other Staffing and Related Issues
104. Due to delays in care, including the provision of medicines, surgery and other specialty care caused by the unavailability of JMF and dialysis unit physicians to promptly see patients, the Court concludes (consistent with the relief ordered above) that: (1) the ordering of the additional JMF staffing and dialysis staffing discussed above is necessary to prevent irreparable injury and violations of [**85] the Eighth Amendment as to class members--including, unnecessary and preventable death, illness and suffering-due to systemic causes; and (2) there is no legal remedy available to address the interests sought to be protected. 21 The Court also [*805] finds that such remedy is proper under the above mentioned PLRA provisions because it is non-intrusive (a part of Defendants' original Plan as implemented) and the imposition of this requirement will reduce the burdens of this litigation upon Defendants by assisting in the prompt provision of services to class members.
FOOTNOTES
21 Defendants had asked in their Trial Brief to further put off a decision on the dialysis unit staffing until after hearing of January 2007. The Court declines this invitation. Defendants have received more than adequate opportunities to present testimony. The request for further delay, if granted, would only serve to jeopardize the interests of dialysis patients.
105. Further additional staffing has also been requested by Plaintiffs in light of the [**86] record evidence that persons employed within the system with responsibilities for staffing (e.g., Debbie Roth) have expressed opinions that staffing is inadequate and complicates patient care, as well as other record evidence. The under-staffing has caused regular delays of patient appointments with the certain consequence that patients' care has been delayed and they have suffered unnecessarily in the interim. Such testimony, and the general condition of health care, make clear that staff shortages must be addressed to assure prompt delivery of care. For this reason, the Court will order a comprehensive staffing plan to be filed by Defendants, which shall include a statement of Defendants' plans regarding strategies for recruiting and retaining staff. Plaintiffs and the Associate Monitor are free to comment on the Plan in advance of hearing.
106. This Court finds that the injunctive order described in the preceding paragraph is (1) necessary to prevent irreparable injury and violations of the Eighth Amendment as to class members--including, unnecessary and preventable death, illness and suffering--due to systemic causes (particularly the delay in patient care caused by the [**87] nursing absences); and (2) there is no legal remedy available to address the interests sought to be protected. As such, the Court approves an injunctive order requiring the making of such a plan to be timely implemented by Defendants. The Court likewise finds that such remedy is proper considering the terms of the PLRA in that the filing of such a plan will permit Defendants all necessary flexibility to address the constitutional violations at issue and will not be overly intrusive or otherwise prohibited by the PLRA.
107. Plaintiffs has also requested that two additional MSP floaters be mandated to cover hours at JMF and RGC when regulars MSPs are unavailable. This request appears moot. JMF and RGC already have two floaters assigned. (Mattai Dep. 37, 89.) The Court assumes that Plaintiffs still have concerns about the reliability of those floaters given that nursing floaters (a separate subject) have not been reliably available. The record on this issue is insufficient to support injunctive relief. Nevertheless, the Court does direct Defendants to brief, for consideration at the plan approval hearing, the issue of the availability of existing floaters to provide services during [**88] leave of regular staff.
108. Plaintiffs has also requested that the Court enjoin Defendants to implement a scheduling committee to increase provider productivity. This the Court assuredly will not do. Provider productivity is principally a money issue and it is not one which negatively impacts Plaintiffs' care. That is, it is unimportant in terms of the delivery of necessary services whether Plaintiffs are adequately served by a few productive workers or many unproductive ones. This is a resource allocation issue which is properly within Defendants' administration and control. Relief is denied on this issue because such issues are within the sole province of Defendants and are not properly the subject of intrusive federal action. In saying so, the Court understands that efficiency is related to staffing itself. However, remedies as to staffing, though more costly, are less intrusive and to be preferred under the PLRA because [*806] they do not involve the courts in staff supervision of correctional employees.
109. Finally, Plaintiffs have requested that a plan be ordered to assure completion of CCC enrollment at RGC. The competing evidence on this point is not persuasive. The Court [**89] accepts the testimony of Ms. Hladki that CCC enrollment is proceeding according to plan and selected failures are being addressed with staff. (See Hladki De Bene Esse Dep. 18.) As such, the Court determines that an injunction on this subject should not issue because irreparable harm does not support it.
3. Specialty Care Issues
110. Both the persuasive testimonies of Dr. Cohen and Dr. Walden demonstrate clearly and beyond peradventure that the specialty referral process is "profoundly deficient." (T.T., vol. III, at 402, 589-96.) Such care is routinely delayed beyond the time medically necessary. Furthermore, the delays tend to topple one upon the other for patients with regular needs for specialty service (e.g., cancer patients). Such delays routinely cause unnecessary death, illness and extreme suffering. In light of such record, it is clear that injunctive relief is necessary to prevent further irreparable harm to class members.
111. Plaintiffs have requested that the Court order a 20-percent reduction in the specialty care delays as a starting point in addressing the problem. Although it is clear that remedy is essential, this exact formulation of the [**90] remedy is problematic for some important reasons. First of all, when the care providers are, for example, saying that a patient suffering a heart attack may be seen in 30 days, then no validity should attach to the service-times currently being assigned. Credible expert testimony also supports that Defendants' record-keeping and statistics are error-ridden and not to be relied upon as evidence of adequate care. (See Creekmore Report 1-4; T.T., vol. III, 536; Ferguson De Bene Esse Dep. 128-84; Pls.' Ex. 2A at 27.) It is possible that those figures can be made reliable in the future, but at present they cannot serve as a solid basis for corrective action. The other reason that a blanket reduction is not the wisest policy is that a bland 20-percent reduction does nothing to distinguish between the most urgent cases and those which are less than urgent.
112. Plaintiffs have correctly determined, in the Court's judgment, that two root causes of specialty delay are: (1) provider unavailability; and (2) transport problems. To this list, one may add a third factor, namely that a persistent and daily effort is not made to reschedule dropped appointments within short-time frames. [**91] The Court believes that injunctive relief should be narrowly crafted to address these three issues. Therefore, the Court will at this juncture simply require the filing of a plan by Defendants which addresses these objectives by devoting real resources to the problems--additional transport officers, additional specialty providers and additional staff making daily efforts to reschedule dropped appointments quickly. This effort should, as explained above, concentrate the effort upon providing services to those most urgently in need of services.
113. This Court finds that the injunctive order described in the preceding paragraph is (1) necessary to prevent irreparable injury and violations of the Eighth Amendment as to class members--including, unnecessary and preventable death, illness and suffering--due to systemic causes; and (2) there is no legal remedy available to address the interests sought to be protected. As such, the Court approves an injunctive order requiring the making of such a plan to be timely implemented by Defendants. The Court likewise [*807] finds that such remedy is proper considering the terms of the PLRA in that the filing of such a plan will permit Defendants all [**92] necessary flexibility to address the constitutional violations at issue and will not be overly intrusive or otherwise prohibited by the PLRA.
114. Plaintiffs have also requested additional relief as to specialty care, in-patient clinics with endocrinologists and psychiatrists. The record presently indicates that Defendants are working on these issues to make appointments and/or possibly schedule in-patient treatment when medically necessary. Given this effort, the Court does not presently find that other injunctive relief is necessary as to these issues to prevent irreparable harm. Due to the risk of hypoglycemia deaths, the Court will, however, closely monitor this issue in the future.
4. Further SERAPIS Expansion and Transfer Assessment Forms
115. Under the umbrella of SERAPIS, Plaintiffs have clustered two additional injunctive requests. Aside from the SERAPIS implementation which has been ordered above (concerning DWH lab and medication orders and PharmaCorr connectivity), the sole remaining issue is whether SERAPIS (an ambulatory record system) or a SERAPIS-compatible system must be expanded to include DWH and C-Unit in-patient care. The record deems this to be [**93] essential to patient services, but provides little guidance as to the practical difficulties of doing so and the time frames necessary to achieve success.
The Court certainly believes that expansion is essential for the provision of adequate patient care and must commence at a rapid pace. However, at the same time, it is important to get this process right and to end with a product that works well with SERAPIS and has connectivity with Foote Hospital and other regional systems. Because the record is insufficient to mandate hard deadlines on such issues, the Court finds that the present record does not support immediate injunctive relief since the terms of that relief and the practical difficulties of implementation cannot be determined on the present record.
116. While the Court has declined this invitation for immediate injunctive relief, the Court nevertheless does expect that Defendants will continue their present efforts toward an in-patient electronic record which is compatible with SERAPIS and has connectivity with Foote Hospital and other regional systems. That objective should be reached in the short-term and not the long-term. In saying so, the Court further expects [**94] that Defendants will exercise all possible diligence and study to determine the best possible system to assist medical staff and patients. With the freedom and flexibility to choose their own path in this area, comes the responsibility that it be done correctly and as expeditiously as possible.
117. Also mentioned under the same rubric is Plaintiffs' request that Defendants be ordered to include special accommodation lists (a form for disabled prisoners) as part of the standard patient overview within SERAPIS. Defendants represent that they are presently able to do so and will show at the forthcoming hearing in January that the system is reliable. For these reasons, the Court determines, at present, that injunctive relief is not necessary and would violate the terms of the PLRA.
5. Kite System Expansion and HUM Review
118. Plaintiffs have also requested two items of relief relating to the operation of the kite system, which as noted above permits prisoners to make health care requests regarding systems, services, advice and medicines. The first is expansion of [*808] the kite system to DWH. The kite system is not used as to in-patient care at DWH. The reason it is not used [**95] is that nursing staff is assigned to those places to provide in-patient care and while doing so, typically answer questions and respond to verbal requests on a routine basis. Furthermore, a prisoner who is dissatisfied with the level of response may file a grievance to address the issue. (Hladki De Bene Esse Dep. 52-55.) While the Court agrees with Plaintiffs' counsel that prisoners need timely response and help at DWH, the place this should start is by verbal communication. Adding another layer of impersonal communication, to a system already bogged down with it, is not likely to increase the level of care or serve the Plaintiff class' overall interests. The Court simply finds that the present record does not support such injunctive relief to so expand the kite system since such expansion would be inconsistent with the PLRA provisions and is not supported by a sufficient showing of irreparable harm.
119. Plaintiffs' second related request is that the HUM (Health Unit Manager) be made to regularly review the help line, kite logs and Urgent/Emergent logs. The Court understands that these logs are already being reviewed by other personnel. Furthermore, the objective sought by [**96] Plaintiffs (protection of critical cases) is currently being addressed by Defendants' development of a case management system for critical cases. The entry of the injunction would be inconsistent with the PLRA provisions and is not supported by a sufficient showing of irreparable harm.
6. Reporting of Unexpected Deaths and Significant System Failures
120. Both Plaintiffs and the Associate Monitor have requested that Defendants regularly report unexpected deaths and significant system failures. This request is supported by the fact that recent catastrophic events went unreported until discovered by the Associate Monitor during chance visits. Interestingly, Defendants state that they "do not have any problem with taking up . . . the idea of reporting to the Associate Monitor on a regular basis certain events." (Defs.' Tr. Br. 14.) At this juncture, the Court simply finds that a separate reporting requirement is unnecessary because the relief described below will require sufficient reporting to address this issue.
7. Disability Remedies
121. Plaintiffs have requested disability remedies in eight separate categories. Some of the relief sought is incredibly far-reaching, [**97] including the establishment of a 150-bed air conditioned assisted living center. 22 The record, including Plaintiffs' Exhibits 2A, 2B and 2C and the deposition testimony of Debbie Roth, certainly support that there are large unmet needs in the system, which affect both Hadix prisoners and others.
FOOTNOTES
22 The record on that item is a cloudy one. On the one hand, Defendants' Director of Nursing Debbie Roth testified that Hadix prisoners needed as many as one hundred assisted living beds. (Roth Dep. 76.) On the other hand, Dr. Mattai testified that the number was a much smaller fraction of that total number. (See Mattai De Bene Esse Dep. 45 & 48.) Defendants also represent that the MDOC is presently exploring plans for a large assisted living center in the Upper Peninsula which would meet state-wide needs, including the Hadix facilities. (Defs.' Tr. Br. 15.)
122. At the same time, however, the record is unclear as to systemic causes and the extent of any relief which should be ordered to address [**98] the short-comings of the present system. The Court also believes that the relief described later in this decision will provide sufficient relief to Hadix [*809] prisoners on disability issues provided that Defendants make available sufficient patient beds and living quarters and arrangements for the uncertain number of inmates needing assisted living. For these reasons and because of the PLRA restrictions as to overly intrusive remedies, the Court finds that Plaintiffs' various requests for relief as to disabilities should be presently denied with the exception of the remedies described in the following paragraphs.
8. Office of the Independent Monitor
123. Both Plaintiffs and the Medical Monitor have requested that the Court order the establishment of an Independent Monitor's Office with special powers to take corrective actions regarding patient care. The specific draft proposal for the office asks for the creation of office facilities with sufficient staff and administrative support to accomplish the following goals: (1) monitor the sanitation of the dialysis unit and DLW; (2) accomplish a one-time review of pain relief practices; (3) monitor the adequacy of physician and [**99] nursing staffing; (4) monitor the implementation of SERAPIS; (5) monitor the treatment of renal patients; (6) monitor the pharmacy system and delivery of prescription drugs to Hadix patients; (7) monitor the promptness of specialty care consultations; (8) receive and investigate all manner of prisoner complaints about their medical care; and (9) receive appropriate and requested information from the parties, including medical records, so that such information may be shared and evaluated by the Independent Medical Monitor. (See Pls.' Mot. for Further Relief 5-6 & Attach. 1 at item 9.)
124. Why do such a thing? The answer is many faceted. In the private market place, consumers are protected by competitive pressures and choice. That is, if your doctor does not serve you adequately, you get a second opinion. There is little opportunity for second opinions in prison medical service. You get one opinion, that of the prison or CMS physician. If you do not like it, you kite or grieve it, but you are too often told to pound sand. While it is true that federal courts are sometimes an effective check on this abuse, the sad fact is that the circumstances which create effective checks [**100] on prison conditions usually happen only after the prisoner has been either killed or severely injured. This is because the private market place of attorneys is not interested in taking other cases because they do not generate sufficient income.
125. So what about the prisoner whose treatment (he feels) is likely to jeopardize his health and he wants injunctive relief? That prisoner, after going through the grievance process, files a federal action where typically nothing happens in a hurry. He may move for immediate injunctive relief, but he is lacking the one thing he needs to obtain it--a supporting medical opinion that he will be seriously harmed if additional or different care is not provided. Such cases, almost universally, run into the Sixth Circuit Court of Appeals' precedent in Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976), and similar cases, which stand for the proposition that federal courts will not intervene merely due to differences of opinion as to treatment decisions. Westlake mows down those cases like a scythe cuts wheat.
126. But what about the present Plaintiffs' counsel and medical monitor? The sad fact is that neither [**101] presently have the resources to protect prisoners' interests in obtaining timely treatment of serious medical conditions. Plaintiffs' counsel and the medical monitor typically will bring matters to the Court's attention only after serious injury and/or death has resulted from medical indifference and systemic failures. Notwithstanding the grave systemic [*810] failures of the current medical system, the prisoners within it presently lack the means to protect their own health and to prevent medical indifference from killing and injuring them. This situation does not whimper for a remedy. It cries aloud in a voice acknowledged by all but the deaf and defiant.
127. Starting today, however, prisoners shall have a voice in their medical care at Hadix facilities. The Court finds that the present system is systematically defective, dangerous and readily results in preventable death, illness and suffering due to untreated serious medical conditions. The Court further finds that (1) the establishment of an Office of the Independent Monitor capable of receiving and acting on prisoner complaints, and otherwise improving medical care at the Hadix facilities, is necessary to prevent irreparable [**102] injury and violations of the Eighth Amendment as to class members; and (2) there is no legal remedy available to address the interests sought to be protected. Furthermore, the establishment of the Office shall be by plan of Defendants, which shall permit them sufficient freedom that the resulting Office is not overly intrusive or otherwise in violation of the PRLA provisions. In particular, intervention will be limited to those causes in which at least two physicians of the Office concur that some form of treatment or services is not being timely provided, or where relief from custodial constraints (e.g, placement in a medical setting instead of segregation), is necessary to prevent death, illness or suffering due to an untreated serious medical condition.
128. Therefore, it is now necessary to establish basic parameters and ground rules for such Office. Beginning with facilities, Defendants shall supply the Office and its staff, including the Associate Monitor, office space on the grounds of the Hadix facilities. The Office staff, including the Associate Monitor, shall have full-card access to all of the Hadix facilities, and shall have the powers to interview prisoners, [**103] review medical records, receive and act upon prisoner complaints and petitions, inspect prison conditions throughout the facilities, including those in segregation. Defendants shall accommodate and assist the Office and its staff in completing all assigned duties. Defendants shall urgently report unexpected deaths and significant system failures to the Office.
129. Duties assigned to the Monitor shall include all of the duties mentioned in the draft proposal. They shall also include the duties to: (1) study staffing, access to and repair of equipment, and facility issues, including hospital and long-term care bed availability, at any time that it appears that any of these factors are preventing the treatment of serious medical conditions or causing harm or injury to prisoners with disabilities; (2) take corrective action as to failures of care and non-treatment; (3) intervene with custodial officers and medical officers whose treatment of prisoners violate the Eighth Amendment; (4) revise the statistics of Defendants so that the statistics fairly portray the matters being studied; (5) set new or different treatment dates regarding specialty care and medical case management, and [**104] to review and revise Defendants' Specialty Care Reports so that those Reports represent treatment realities; (6) mandate remedial care in secure locations outside the Hadix facilities (e.g., a secure cancer treatment center) when necessary for corrective action; and (7) mandate prompt and secure transfer of prisoners to medical care both within and outside of the Hadix facilities.
130. These duties require significant staffing. Therefore, Defendants shall employ for the Associate Monitor a full-staff of medically qualified applicants. The applicants [*811] will be finally selected by the Associate Monitor and serve at the pleasure of the Associate Monitor. The applicants must include the following: (1) a full-time physician; (2) a full-time nurse investigator; (3) a full-time administrative support staff member; and (4) such consultants as are necessary to complete required studies. The Office shall be given an annual budget sufficient to permit the employment of consultants and to otherwise function efficiently and perform the assigned duties.
131. The Office will make all decisions regarding patient care by consensus determinations of the Associate Monitor and the [**105] Office physician. Any case as to which they fail to reach consensus will not result in directions to Defendants to provide different or additional medical care. The decisions of the Office will be recorded in meeting minutes which shall be kept by the administrative support staff member. Those meetings may be conducted with one or more participants expressing decisions over the telephone, or electronically. The supporting records for all treatment decisions shall likewise be regularly kept as will all prisoner requests. Any prisoner filing a petition for medical services with the office shall not be transferred during the term that the petition is under consideration, nor during the term of any ordered treatment, except with the express and voluntary agreement of the prisoner. Defendants shall incorporate, in their forthcoming plan, procedures to ensure that frivolous petitions are promptly disposed of, and do not frustrate legitimate prisoner transfers. The plan shall also include protocols for insuring that custodial and medical officers, and independent contractors, follow the directions of the Office and that the directions of the Office do not interfere with safe and secure transportation [**106] and housing of prisoners.
132. This plan, as well as the plans discussed in the preceding paragraphs, shall be filed within 90 days of the entry of the Final Injunction. 23 Hearing shall follow on the plans soon thereafter.
FOOTNOTES
23 Plaintiffs also requested heat-related remedies, but have post-poned presentation of evidence pending later hearing. As such, those requests are denied without prejudice and may be renewed by later hearing.
CONCLUSION
133. A Permanent Injunction shall enter granting in part and denying in part Plaintiffs' Motion for Order to Show Cause and Motion for Further Relief, which order shall require remedy of Defendants' contemptuous conduct and provide injunctive relief as explained in the Court's Findings of Fact and Conclusions of Law.
A new day has dawned for the Hadix facilities and prisoner medical care. Let us greet it with the joy that a new day demands. Those who will curse it, and other progress, shall only resign them selves to pain, hardship and eventual irrelevancy.
[**107] DATED in Kalamazoo, MI:
December 7, 2006
/s/ Richard Alan Enslen
SENIOR UNITED STATES DISTRICT JUDGE
PERMANENT INJUNCTION
In accordance with the Court's Findings of Fact and Conclusions of Law entered this date:
IT IS HEREBY ORDERED that the additional exhibits and post-hearing filings of the parties referenced in the Findings of Fact and Conclusions of Law are ADMITTED for the purpose of the record of the proceedings.
IT IS FURTHER ORDERED that Plaintiffs' Motion for Order to Show Cause and Motion for Further Relief (Dkt. Nos. 2099 & 2105) are GRANTED IN PART AND DENIED IN PART.
[*812] IT IS FURTHER ORDERED that Defendants are held in contempt for violation of the JMF hiring requirements of the Preliminary Injunction Plan and Order of Jan. 12, 2006.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, shall promptly remedy their contempt regarding the JMF hiring requirements subject to the coercive provisions of § IIB.5 of the Court's Findings of Fact and Conclusions of Law.
IT IS FURTHER ORDERED that Defendants are held in contempt regarding the full-time physician hiring requirement within the dialysis unit [**108] of the Preliminary Injunction Plan and Order of Jan. 12, 2006.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, shall promptly remedy their contempt regarding the full-time physician position subject to the coercive provisions of § IIB.6 of the Court's Findings of Fact and Conclusions of Law.
IT IS FURTHER ORDERED that the terms of the Preliminary Injunction Plan and Order of Jan. 12, 2006 are APPROVED AND ADOPTED as the Final and Permanent Injunction in this matter together with the additions described herein.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, are HEREBY ENJOINED to complete the implementation of SERAPIS as to DWH and C-Unit lab orders and medications, and to establish connectivity and utility of SERAPIS with the electronic systems of PharmaCorr, Inc. regarding on-going pharmacy services on or before February 1, 2007.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, shall provide additional staffing throughout its Hadix facilities, and particularly, additional nursing staff; the exact staffing levels, shall be determined after further study and hearing. Defendants' staffing [**109] plan shall be filed within 90 days of this date, consistent with § IIC.2 of the Findings of Fact and Conclusions of Law.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, shall redress delays in specialty care through a plan, to be filed within 90 days, which is accordance with § IIC.3 of the Findings of Fact and Conclusions of Law.
IT IS FURTHER ORDERED that Defendants, their agents and assigns, shall redress failed medical care, through a plan which creates an Office of the Independent Monitor on the grounds of the Hadix facilities, which Plan shall be consistent with the Court's instructions in § IIC.8 of the Findings of Fact and Conclusions of Law and which shall be filed within 90 days.
IT IS FURTHER ORDERED that all other relief sought by Plaintiffs is DENIED, though requests for heat-related remedies are DENIED WITHOUT PREJUDICE subject to further hearing.
DATED in Kalamazoo, MI:
December 7, 2006
/s/ Richard Alan Enslen
SENIOR UNITED STATES DISTRICT JUDGE