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Delaware Forced to Clean-up Medical Care by DOJ Settlement

by David M. Reutter

After a nine-month investigation, the U.S. Department of Justice (DOJ) issued a report finding prisoners in four Delaware prisons ?suffer harm or are placed at the risk of harm from constitutional deficiencies in certain aspects of the medical and mental health care services, including suicide prevention.? It was also announced the DOJ and state of Delaware entered into an 87 point agreement to cure those deficiencies.

PLN reported in its December 2005 cover article that the privatized health care within Delaware prisons was killing and maiming prisoners. The story and events that followed came as the result of investigative reports by Delaware?s News Journal.

That investigative reporting sparked a public outcry that included marches on the Governor?s mansion and the DOJ?s investigation of civil rights violations, begun in March 2006. All through the ordeal, the Delaware Department of Correction (DDOC) remained in denial, but did hire its own experts.

The DOJ found constitutional violations at the Delaware Correctional Center (DDC), the Howard R. Young Correctional Institution (HRYCI), the Sussex Correctional Institution (SCI), and the Delores J. Baylor Women?s Correctional Institution (BWCI). The John L. Webb Correctional Institution was given a clean bill of health with no constitutional violations.

Staff from DOJ toured the five prisons, which hold 6,800 pretrial and convicted prisoners, on six different occasions. The DOJ?s finding report detailed specific problems with the medical care and mental health treatment, which is provided under contract with Correctional Medical Services (CMS).

DOJ?s investigation found ?inadequate sick call systems in place, which directly interferes with inmates? access to care for their serious medical needs.? The deficiencies existed in scheduling appointments and tracking no-shows. On a sample day at NYRCI, only seven of the 14 patients scheduled for sick call were seen by medical personnel. Those that missed were not tracked or rescheduled. There were also significant delays for prisoners requesting to see a psychiatrist.

Prisoners with life-threatening conditions did not receive timely care. One prisoner, who was known to be infected with HIV, was admitted to a hospital from HRYCI with pneumocystic carinii pneumonia, a potentially fatal infection in people with AIDS, had his care mismanaged for one month before being sent to the hospital. That prisoner was never tested for tuberculosis, which is common for people with HIV and pneumonia, placing other prisoners and staff at risk. Of the ten prisoner records reviewed after being sent to a hospital, six were admitted.

The State?s expert found there are consistent backlogs with respect to the treatment of chronic care prisoners, as evidenced by infrequent scheduled appointments. When appointments are scheduled, they are subject to cancellation without explanation or follow-up. Because there exists no registry of prisoners with chronic diseases, those prisoners are at risk for ?deterioration in function, including blindness, kidney disease, heart disease, liver failure, and death.?

Care was especially poor for prisoners with diabetes, asthma, and HIV. One diabetic prisoner ?went without insulin for three days, despite severely elevated blood sugar levels that were known to staff, placing him at risk of death.? Of nine asthmatic prisoners that should have been seen over a three month period, only three were seen.?

Outside consultations for specialty care ?are delayed by days or even weeks in non-emergency situations because of bureaucratic obstacles within [CMS?s] system for obtaining authorization.? Shortages in guards to transport prisoners to outside medical appointments contribute to the problem. Even when outside consults do occur, ?post-consult follow-up does not consistently occur.?

As is occurring across the country, methicillin-resistant staphylococcus aureus (MRSA) has found its way into Delaware prisons. Until recently, ?the medical staff were generally unfamiliar with the diagnosis and treatment of MRSA, and that the medical staff did not culture potential MRSA infections or educate inmates on proper precautions against the spread of MRSA until fall 2005.?

One female prisoner at BWCI was inappropriately treated with a topical cream for an infection on her face. She did not see a doctor for six days. By that time, she developed cellulitis, a deep skin infection that required hospitalization. At DCC, a prisoner?s MRSA infection was not properly diagnosed. He had to be hospitalized for five weeks, resulting in permanent deformity when he lost the skin on his scrotum and had to undergo skin grafts.

The DOJ said that the inadequacies place prisoners and staff at risk of acquiring MRSA ?infection and passing it to others in the community beyond the prison walls.? The facility does not keep adequate logs of skin infections to analyze data and identify potential sources of transmission. ?Notably, in many cases physicians were prescribing the antibiotic Keflex, which not only is rarely effective for skin infections, including MRSA, but actually leads to prolonged infection and increased opportunities for the infection to spread.? Finally, the laundry practices are inadequate to prevent the spread of skin infections.

Significant lapses in medication administration existed at the prisons. Not only are prescribed medications routinely discontinued or delayed, but CMS has no system in place to notify prisoners when their medications have arrived or for verifying they are providing the prisoner with the right medication. Serial refusals of medications were not monitored. These amount to ?systemic problems with medication administration and management.?

Next, there was ?found substantial deficiencies with the mental health care? provided at the prisons. The low staffing of psychiatric personnel caused a backlog of prisoners needing such care. The ?Psychiatrist is on-site only four hours per week and the ?on-site psychiatrist? generally only provides guides via telephone.?

The treatment plans for prisoners need to be developed to prevent unnecessary diagnosis changes by psychologists and to assure that patients are put on the appropriate problem list. Group counseling services were found to fall below accepted standards. Because clinicians are making important treatment decisions, the counseling services are ?constitutionally inadequate.?

The DOJ took issue with the psychotropic medications of new prisoners being ?substituted with other medications which may not be as therapeutically effective.? Investigators encountered prisoners who appeared to display diminished symptom control and decreased functional ability from the substitutions. The intake and screening process to identify seriously mentally ill prisoners was found to also be constitutionally inadequate.

Finally, suicidal prisoners were not adequately assessed or identified. This resulted from improperly or inadequately trained employees and nurses. Even when a prisoner reported a history of suicidal thoughts or actions, proper measures were not taken to ensure the prisoner?s safety.

The settlement agreement, which was signed by the parties on December 29, 2006, comprehensively covers all areas of medical and mental health care. It creates a monitor and compliance officer. The agreement terminates in three years with provisions to terminate after a period of one year of substantial compliance, of providing ?generally accepted professional standards? of care.

?My concern is with compliance,? said attorney Jeffrey K. Wilmington. He is one of several attorneys involved in the nearly dozen lawsuits seeking damages for medical care civil rights violations. The finding letter and agreement has been called a ?road map? for these lawsuits.

Despite the DOJ?s findings, CMS remains in denial. ?In fact, to my knowledge, the consultants who have been retained by the Department of Justice have not even been to all of the facilities referenced in the news release, ?says CMS spokesman Ken Fields. ?So, we are perplexed as to how they reached conclusions about the quality of care. In fact, in some cases, we walked away from our discussions with those involved with a distinctly different impression of what they found.?

The settlement agreement explicitly makes the State of Delaware ?responsible for ensuring that CMS (or any successor contractor) complies with the terms of this agreement.? That provision will leave CMS perplexed about how to reap its normal high profits that are made possible by denying or delaying care. Historically however, prison and jail lawsuits by the DOJ have not resulted in significant improvements.

Sources: The News Journal; U.S. Department of Justice letter to Governor Ruth Minner and Memorandum of Agreement between Justice and The State of Delaware.

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