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14 Years of Litigation Fails to Remedy Deficient Jail Medical Care; Herrera Saga Continues in Washington State

by Mark Wilson

In 1996, Tacoma, Washington officials settled a class-action federal lawsuit over unconstitutional conditions and insufficient health care at the Pierce County Jail (PCJ). Fourteen years later, however, prisoners continue to be denied adequate medical and mental health care, according to court filings. At least eight deaths between 2006 and 2008 were linked to deficient medical treatment at the jail.

The class-action suit was filed in 1995 and settled with a consent decree on March 28, 1996. [See: PLN, March 1997, p.18; April 1995, p.5]. Pursuant to the consent decree, the district court appointed two monitors to report on compliance with constitutionally-mandated minimal health care at PCJ.

The first monitor was Dr. Steve Shelton, Medical Director for the Oregon Department of Corrections (ODOC), whose hepatitis C policies were the subject of an unrelated federal class-action lawsuit while he served as a court monitor in the PCJ litigation. [See: PLN, Feb. 2005, p.14]. He was replaced by Dr. Joseph Goldenson, who oversees jail health services for the San Francisco Department of Public Health.

“Both Court Monitors have repeatedly reported serious deficiencies” at PCJ, class counsel Fred Diamondstone informed the district court, and “Pierce County has repeatedly ignored the conclusions” of the monitors.

Compliance with NCCHC Standards

In a January 26, 2008 court-ordered progress report, Goldenson wrote that Dr. Shelton had previously noted that the defendants “expressed a desire to use the National
Commission on Correctional Health Care (NCCHC) Standards as their guidelines and final goalpost for their health care system.” Goldenson agreed “that while the standards are not in and of themselves proof of an adequate health care system, they do represent a ‘well thought out and systematic approach to the difficulties of providing a quality system of health care in corrections, and have consistently shown a high level of concern for inmate welfare.’” As such, he said he would “follow the outline of the NCCHC standards and ... comment on progress towards meeting the standards,” with the caveat that compliance did not guarantee constitutionally-adequate medical care.

Dr. Goldenson clarified in his second report, issued on August 5, 2008, “that while the NCCHC standards are used as a method of organizing the reports,” his findings and recommendations were based on what the Constitution, not the standards, required. He then found, however, that PCJ failed to satisfy 18 of the NCCHC standards related to issues such as adequate staffing, chronic disease management, mental health screenings, suicide prevention and dental care.

Only then did the Pierce County defendants object to the use of the NCCHC standards, arguing that they “should be considered as guidelines,” not requirements. Thus, after the defendants had selected the NCCHC standards “as their guidelines and final goalposts,” and failed miserably to satisfy these self-imposed minimum standards, they tried to move the goalposts.

Medical Staffing Problems

A major point of contention between the parties, and a recurring deficiency found by the monitors, was medical staffing at PCJ. In his August 5, 2008 report, Dr. Goldenson recommended that the jail hire six additional nurses and two mental health professionals.
The defendants disagreed. “Current staffing levels are fully adequate to provide necessary medical services for inmates,” said PCJ Health Services Manager Vince Goldsmith.

Class counsel Diamondstone sided with the monitor. In 1996, PCJ’s population was 1,264 but “the 2007 Actual Average Daily Population was nearly 20% higher at 1,490,” Diamondstone noted, citing PCJ’s 2009 preliminary budget. The increase in the jail’s population evidenced a need for an increase in medical staff.

As early as December 2001, Dr. Shelton, the first court-appointed monitor, had also found inadequate staffing. In March 2002, a Nursing Consultation Report prepared by Catherine Knox, RN – then the ODOC’s Health Services Administrator – proposed a substantial increase in staffing. Dr. Shelton concurred with Knox’s recommendations.

Shelton again found deficient medical staffing in 2005, as did Goldenson in his January 2008 and August 2008 reports. Yet PCJ refused “to increase the health care staff from the minimum number that were present when the jail population was smaller, in violation of the October 31, 1995 Stipulated Order that had been incorporated in the Final Order and Judgment,” Diamondstone informed the court. “The parties are at an impasse on the current issue of necessary health staff at the jail.”

Mental Health Services

In his August 5, 2008 report, Dr. Goldenson concluded that “the limited number of mental health staff continues to affect the ability of the mental health program to provide an appropriate level of care.” He found that mental health employees were “not responding to a significant number of mental health kites,” and “the current coverage is not adequate to serve the mental health needs of the ... population. Long delays, up to 30 days, were found during chart reviews and some patients were never seen, even though there were multiple referrals to the psychiatrist.”

Dr. Goldenson also wrote that “some patients are released from suicide watch with no follow-up checks from mental health.” While “there is no nationally acceptable schedule for follow-up, Lindsay Hayes, a nationally recognized jail suicide prevention expert, recommends daily for 5 days, once a week for 2 weeks, and then once a month until release,” Goldenson said. He again recommended an increase of two full-time mental health professionals, but the county again refused.

To illustrate the problem, Dr. Goldenson noted that a prisoner with a history of suicidal thoughts sent a kite to medical staff on June 3, 2008, stating “meds – seizures making it impossible to control emotions – put in several kites.” Six days later he sent another kite asking why his kites weren’t being answered. “I need help badly,” he wrote. As of June 12, 2008, nine days after his initial request for mental health care, he still had not received a response.

Dental Care

“Dental care continues to be available only one day per week,” observed Goldenson. As of June 2008, “there were 40 patients on the dental priority list.... Many of these patients had been on the list for over 2 months. In addition, 93 patients were on the waiting list for routine dental care. Many of these patients had been waiting over 4 to 6 months to see the dentist.”

One prisoner was placed on the priority list on January 23, 2008 for a dental abscess and another was put on the list March 6, 2008 for a broken tooth, but neither had been seen as of June 12, 2008. “As noted in our prior report, the current schedule is totally insufficient to meet the dental needs of the jail population,” Goldenson wrote.

Diamondstone said the court had previously ordered the county to employ a half-time dentist, but “the jail has been providing one day a week dental care for the past several years.” Pierce County did not begin to comply with the court’s half-time dentist order until January 6, 2009.

Continuation of Outside Medications

“In our first report, we also concluded that the current system for continuing outside medications needed to be reviewed,” said Dr. Goldenson. “We were concerned that some patients were not receiving essential medications in a timely manner. Our review of medical records during our recent visit revealed ongoing problems with continuity of medications.”

PCJ staff failed to conduct a recommended “quality improvement study to evaluate the timeliness with which patients receive essential medications when they first enter the jail.” They also failed to develop a recommended policy to address verification of psychiatric medications that prisoners were taking prior to their incarceration, and to provide those medications during confinement, Goldenson noted.

Chronic Disease Management

PCJ “has not developed a system for identifying and tracking patients with chronic medical problems,” Dr. Goldenson found in his August 2008 report. Although the NCCHC chronic care guidelines had been distributed to medical staff at the jail, a “review of records revealed that in many cases the guidelines are not being followed.”

Recent Jail Deaths

Diamondstone suggested in court filings that “eight deaths in 2006-08 all raise questions about access and/or adequacy of health care” at PCJ. He also criticized the jail’s new policy of allowing only internal reviews of prisoner deaths. “Historically, Pierce County conducted outside reviews of deaths that occurred in the jail; apparently that practice has ceased and 6 more recent death reviews that have been provided (one death in 2007 and five deaths in 2006) were all conducted internally, by Dr. Balderamma,” Diamondstone wrote.

In one of those cases, Dr. Balderamma, the physician at PCJ, claimed “that law enforcement had not provided full information about [a prisoner’s] suicide potential at the time of booking.” Yet records indicated that the arresting officers wrote “SUICIDE WATCH” across the top of the prisoner’s intake form and made other notations that he was at risk of self-harm.

NCCHC standards call for an outside review when the jail physician was directly providing care to a prisoner who dies. The county said it would comply with that standard in the future.

Non-Compliance with Court Orders

On March 28, 1996, the district court ordered the county to “establish a Quality Assurance and Improvement Committee” of outside physicians. In October 2008 the county admitted it was not in compliance and “agreed to reinstate a proper committee by December 31, 2008.” However, the defendants failed to meet that deadline.

The 1996 court order also mandated that all prisoners be given at least one hour of outdoor exercise at least three times per week, except when they are housed in disciplinary or administrative segregation for violent behavior. On November 26, 2008, the county informed Diamondstone that “current policy now disallows outdoor exercise to all segregation inmates.”

Further, Dr. Goldenson noted that “access to medical care in special housing units remains problematic.” NCCHC standards requiring medical rounds in segregation units at least 3 times per week were not being met, and “staff reported that access to care is delayed for inmates in segregation,” Goldenson wrote.

Care Terminated for 
Mentioning Counsel

On April 8, 2008, a prisoner who had been incarcerated “for many, many months” was hospitalized with a blood sugar of “just over 500 at the jail (normal would be 60 to 100).
He was held at the hospital for five days and was diagnosed as diabetic.” He returned to the jail on April 13, 2008, and three days later expressed concerns about his diet and not being seen by a doctor. “After more long rants about the type of food, ... [he is] putting a kite under my face with lawyer Fred Diamondstone’s name and phone number written on it,” a nurse wrote in the prisoner’s medical chart. “I took this as a threat and terminated the conversation.”

Diamondstone argued that the incident revealed “concerns about access to adequate medical care and the adequacy of chronic disease follow-up.” He added that “the fact that an inmate’s reference to class counsel is recorded in the chart as a ‘threat’ shows that jail inmates may be dissuaded from presenting complaints to both health care providers and to counsel for the class.”

Recent Developments

Dr. Goldenson issued his third progress report on February 8, 2009. He noted that “required three-times per week nursing rounds in the segregation units are frequently not [] being done,” and cited other continuing concerns that included delays in providing treatment, staffing vacancies, and insufficient monitoring and care of prisoners at risk of alcohol withdrawal. He also reported improvements in the delivery of mental health care at PCJ.

Pierce County moved to remove the court-appointed monitor on July 9, 2009; the court denied the motion and the county appealed to the Ninth Circuit, but later dismissed its appeal. The defendants also moved to terminate all provisions of the consent decree other than those related to health care. The district court granted the motion on October 23, 2009, leaving only health care-related matters at PCJ subject to the consent decree. The parties were ordered to mediate the remaining contested issues.

Dr. Goldenson’s fourth progress report was issued on November 18, 2009. He noted that nursing staff still was not doing requiring rounds in segregation, and found delays in responses to prisoners’ kites. Goldenson wrote that “in the overwhelming majority of these cases, the inmates were not seen for at least 4 days, often longer, and at times not at all.” All nursing staff positions at PCJ had been filled, but he remained concerned that the jail did “not have sufficient nursing staff.” Major improvements in mental health care and dental care were cited, and Dr. Goldenson concluded the report by listing ten areas that still needed work – including responses to medical and mental health kites, refusal of care and management of alcohol withdrawal.

The district court removed Dr. Goldenson as the monitor at PCJ on January 11, 2010 and appointed Judith F. Cox, MA, an expert in suicide prevention and mental health care, to submit a report regarding the ten unresolved issues remaining at PCJ.

Cox filed her report on August 10, 2010, finding that four of the ten issues were adequate or could be remedied quickly. She reported that four others still needed improvement – responses to mental health care kites, refusal of care, privacy of nursing patient interviews at intake, and management of alcohol withdrawal. The remaining two issues, the chronic disease program at PCJ and the Continuous Quality Improvement (CQI) process, also needed improvement but did not affect access to care. Cox found the CQI process at PCJ did not meet community standards.

This case remains ongoing, with a trial date scheduled for January 24, 2011 if the remaining health care-related issues at PCJ are not resolved before then. See: Herrera v. Pierce County, U.S.D.C. (W.D. Wash.), Case No. 3:95-cv-05025-RJB-JKA.

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Related legal case

Herrera v. Pierce County