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Ohio DOC Stipulates To Vastly Improved Medical Care

by John E. Dannenberg

The Ohio Department of Rehabilitation and Correction (ODRC) settled a prisoner class action federal lawsuit on October 6, 2005 by stipulating to comprehensive improvements to its prisoner medical care, grounded in adding 321 medical personnel to the existing 540 and in overhauling its medical facilities. In the first year, $7 million will be added to the present $140 million budgeted for medical care. Over 21 million will be spent in the first three years. Lawyers for both sides agreed that the proactive reforms would pay for themselves in the long run because much of the emphasis will be placed on preventive measures.

In a class action complaint, prisoners Rodney Fussell (S. Ohio Correctional Facility), Gary Roberts (London Correctional Institution) and James Love (Lebanon Correctional Facility) sued ODRC officials in U.S. District Court (S.D. Ohio) in October 2003 for injunctive relief for deprivations of state law and constitutionally required medical care. The class is defined as all ODRC prisoners, present and future, who are denied such care. Additionally, a subclass consists of all prisoners who were required to pay a $3 co-pay fee since July 1, 1996. The class and subclass are estimated to encompass over 40,000 prisoners in ODRCs 33 prisons.

The complaint addresses all disciplines of medical care, including chronic disease and dental. Although Ohio State University Medical Center was used for treatment outside that provided at the prisons, delays of months to get to see the specialists seriously endangered prisoners lives. Prisoner grievances over medical care were inappropriately answered by unqualified prison officials, not doctors. Prison administrators frequently overruled doctors orders for specialists and follow-up care. Some prisons had no chief medical officer for months, thus compromising medical care. Staff shortages in the dental department often delayed routine care for more than two years, causing prisoners to develop worse problems. Lengthy delays in ordering diagnostic tests in HCV (Hepatitis-C) cases also seriously endangered prisoners lives.

Treatment was often ordered on a limited cost-basis instead of medical need. Lack of emergency medical care for critically ill prisoners caused deaths. A severely restricted HCV treatment protocol (treatment denied until liver disease was advanced) was challenged because it denied treatment to most HCV positive prisoners. (See, e.g.: PLN, May 2004, p.1, Prisons Nationwide Fail To Treat HCV Epidemic). The $3 co-pay fee was used illegally as a bar to gaining medical/dental care. Named plaintiffs Fussell and Roberts suffered for ten years from HCV but were refused necessary liver biopsies, thus precluding treatment for those ten years. Plaintiff Love suffered periodontal disease after being forced to wait 27 months to get his teeth cleaned, and will now lose four front teeth.

The 33 page Stipulation was focused on improving medical care, not on assessing damages. Plaintiffs attorney David Singleton said, The health care system was broken when we filed this suit. It will be a much improved system. Both sides agreed that the improvements will tend to pay for themselves in the long run because they are based on preventive measures such as early screening and improved diet.

The Stipulation announces ODRCs standard: to provide only the minimum level medical care required by the Eighth Amendment. In other words, if it is not deliberate indifference with a sadistic intent, sufficient to shock the conscience, it passes ODRCs muster. Although this writer found much of the language of the Stipulation susceptible to broad subjective interpretation, couched in intent to improve verbiage rather than bright line mandates, the net effect, if responsibly administered, could vastly improve ODRC prisoners health care. Whether it actually does, remains to be seen. The Stipulation provides for quarterly oversight reports, based upon on-site inspections by a multi-disciplinary team under the leadership of Professor Fred Cohen who also headed the monitoring effort in the mental health class action in Ohio, Dunn v. Voinovich.

Some of the highlights are that all medical and dental care shall be timely, performed by credentialed personnel. The program will include wellness information, healthy diets and food in the commissary, and accommodation of non-smokers. ODRC agrees to provide at least one full time physician per 900 prisoners (phased in over two years). Physician staffing will thus increase by 20 positions to 53. Over a four-year period, fifty-four RNs will be added to reach a level of 410, while 79 LPNs will be added to reach a total of 146.

Reception health assessment screening shall be performed within seven days of arrival, in clinical settings with adequate medical supplies and hand-washing facilities. Prisoners transferred between prisons shall be screened within 12 hours of arrival, and may not be shipped without their medical file accompanying them. Chronic care programs shall be set up for asthma, diabetes, high-cholesterol, HIV, cardiac/hypertension, seizure disorders, TB and general medicine disorders. Access to emergency medical and dental care shall be provided 24 / 7 at all ODRC facilities. Sick call requests shall be triaged within 24 hours by a nurse. Infectious diseases to be treated and prevented include TB, HCV, HIV and MRSA (Methicillin Resistant Staphylococcus Aureus). Infirmary care requires the patient to be within constant sight and sound of a licensed health care provider.

Only physicians licensed in Ohio may be employed in prisoner care. All licenses will be reviewed annually. Physicians practicing in a primary care area shall have a residency in that field. A physician leadership and monitoring program shall be established to maintain quality control of ODORC medical care. Grievances shall be reviewed only by a new assistant chief inspector who shall be at least a registered nurse. Retaliation for filing grievances is expressly prohibited. All medical care and interviews shall be conducted with full visual and aural privacy. Medical diets shall be provided per doctors orders, and general diet shall be improved with the addition of a licensed dietician to prepare healthy system-wide diets. Co-payments shall not operate as to discourage seeking of medical care. As to damages, only the named plaintiffs will receive relief, consisting of economic and non-economic terms. And only the named plaintiffs have standing to move for enforcement of the Stipulation, for which the court retains jurisdiction. Attorney fees shall be determined per the Prison Litigation Reform Act, but the term of the Stipulation is for five years. The plaintiffs were awarded $160,000 in attorney fees in this case. Plaintiffs were represented by Cincinnati attorneys David Singleton of the Ohio Justice and Policy Center (formerly the Prison Reform Advocacy Center) and Alphonse Gerhardstein. See: Fussell v. Wilkinson, U.S.D.C. (S.D. Ohio, W. Div.) Case No. C-1-03-704 (SSB).

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Related legal case

Fussell v. Wilkinson