Federal District Court Opinions
HADIX v. CARUSO, (W.D.Mich. 12-7-2006) EVERETT HADIX, et
al., Plaintiffs, v. PATRICIA L. CARUSO, et al.,
Defendants. Case No. 4:92-CV-110. United States District
Court, W.D. Michigan, Southern Division. December 7, 2006
FOR PLAINTIFF(S): Elizabeth Alexander, Michael Barnhart,
Patricia A. Streeter.
FOR DEFENDANT(S): A. Peter Govorchin.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
RICHARD ENSLEN, District Judge
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 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 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 Page 2 of
the briefing. The revised date was set for November 21,
2006. The supplemental briefing and exhibits were then
timely filed by parties.[fn1]
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 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.[fn2] “JMF,” a Hadix facility, refers to the Southern
Michigan Correctional Facility.[fn3] 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 Page 3 ambulatory electronic
medical record system used by the MDOC, the implementation
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.
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 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 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
Page 4 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).
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 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
§§ 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
§§ 728, 729 & 860); and (c) the failure of
the system to provide a readable, comprehensive and current
medical record to care providers (2002 Findings
§§ 790-867). Page 5
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 §§ 1437-38.) After interview of
candidates, Robert Cohen, M.D., was appointed medical
monitor pursuant to an Order of this Court authorizing
independent monitor F. Warren Benton to so appoint him.[fn4]
(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 § 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 § 1442; Order of June 6, 2003.)[fn5]
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.
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 Page 6 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 further. (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 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. Page 7
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 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 (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
Page 8 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. 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 Order 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, Page 9 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 a1c 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 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.[fn6] See Am.
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 Page 10 glucose (sugared food
stuffs) before they lose their capacity for self-treatment
(unconsciousness). The testing is also required 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.[fn7] 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.
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. 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.) Page 11
20. Defendants also report success in maintaining HIV
patents 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 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).[fn8] (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.)
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 Page 12 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 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), 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 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 Page 13 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 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.
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.) Page
14
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 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 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 become part of the evidentiary record.
(Stip. of Nov. 17, 2006; attach. A & Order of Nov. 21, 2006
granting Page 15 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.
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.[fn9]
31. Defendants have announced in their Trial Brief another
recent attempt to 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 study of their health care system,
with phase one to be completed by Page 16 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, 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 Page 17 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 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. (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 Page 18
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 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
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, Page 19 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 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 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 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 Page 20 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 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 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 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 Page 21
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.)[fn10] Here are some of the low lights of what
Dr. Walden found.
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 Page 22
October 19, 2004, the test results showed 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.)
45. Patient 112 was another patient who was treated for
malignant rectal cancer. (Id.) According to Dr. Walden’s
Report, the care 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 Page 23 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
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 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.)
Page 24
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 adjustment 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 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 Page 25 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 (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.
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 to delinquent
treatment of hypoglycemia, delinquent treatment of dialysis
patients, etc.) Page 26
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.[fn11]
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.
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 percentage of very sick inmates.
(Id. at 52-53.) Page 27
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 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 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, 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 Page 28 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, 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 § 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 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, Page 29 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, 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 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 assistant.
(Defs.’ Resp., Dkt. No. 2219, at 10.) They deem Page 30
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 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 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
Page 31 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 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 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.[fn12] Page 32
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