Lewis et al v. Cain et al
Filing
778
OPINION : For the reasons set forth above, The Court finds that Plaintiffs have established their entitlement to permanent injunctive relief by a preponderance of the evidence. The Court will enter judgment in favor of Plaintiffs and against Defendants. Signed by Chief Judge Shelly D. Dick on 11/6/2023. (SWE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JOSEPH LEWIS, JR., ET AL.
CIVIL DOCKET
VERSUS
15-318-SDD-RLB
BURL CAIN, ET AL.
OPINION
I.
INTRODUCTION
In 1989, the United States Department of Justice opened an investigation into the
conditions of confinement at the Louisiana State Penitentiary (“LSP”) at Angola
(“Angola”). The Justice Department found that multiple conditions at Angola deprived
inmates of their constitutional rights, among them the failure to provide adequate medical
and psychiatric care.1
In 1992, a class action lawsuit was filed, alleging that the healthcare at Angola was
so deficient that it violated the United States Constitution’s Eighth Amendment prohibition
against cruel and unusual punishment. The United States Department of Justice
intervened in the lawsuit and joined in the allegations against Angola.
In 2009, the Louisiana Department of Corrections engaged Wexford, a third-party
consultant, to assess the medical care at Angola and report its findings to the Department.
Wexford found multiple medical care deficiencies, which Angola disputes. Whether
Wexford’s findings were substantiated was not an issue in this case, but LSP and the
1
Liability Trial PX 239.
Page 1 of 104
Department of Corrections were aware as early as 2009 that Wexford had identified
persistent health care deficiencies at Angola.
All this to say that the healthcare of inmates at Angola has been the subject of
consternation and criticism since 1989. In 2015, this Class Action suit was filed. After
years of discovery,2 21 days of trial,3 and two site visits to Angola by the Court, the
Plaintiffs proved that, rather than receiving medical “care,” the inmates are instead
subjected to cruel and unusual punishment by medical mistreatment. The human cost of
these 26 YEARS is unspeakable.
In the following pages, the Court will make detailed and extensive findings of the
callous and wanton disregard for the medical care of inmates at Angola. The finding is
that the “care” is not care at all, but abhorrent cruel and unusual punishment that violates
the United States Constitution. These are but a few examples:
x
After a 3-month delay in getting a CT scan that was ordered when a chest x-ray
revealed a suspected malignancy, the CT confirmed the suspicious lesion, and the
patient was referred to a pulmonologist. Yet the patient did not see a pulmonologist
for another 4 months. After finally seeing the pulmonologist, twice the
pulmonologist ordered a biopsy which the patient never received. The
pulmonologist charted his frustration:
“the biopsy didn’t occur, what gives?”
***
“strongly suggest immediate IR [interventional radiology], FNA [fine
needle aspiration] of left upper lobe nodule.”4
2
Both pretrial liability and remedy phase.
11 days on liability dates October 9-25, 2018, and 10 days on remedy June 6-17, 2022.
4
Rec. Doc. 544, Puisis Testimony at 162:19-163:3.
3
Page 2 of 104
Yet a biopsy was never completed. More than a year after the initial suspicious xray findings, the patient was hospitalized for a partial lung removal due to cancer,
after which the patient was ordered to begin chemotherapy. Commencement of
chemotherapy was also inexplicably delayed. The patient died.5
x
A 50-year-old inmate made seven requests for medical attention for escalating
back pain that went unanswered. The man became incontinent and bed ridden.
When medics finally evaluated him, he was found lying on the floor. He was finally
seen by a doctor but died within hours. His autopsy revealed a large liver abscess
and resulting spinal cord compression.6
x
An inmate underwent a colectomy due to untreated Chron’s disease. Angola failed
to refer him to gastroenterologist, failed to provide indicated immunosuppressive
therapy, and failed perform to adequate physical examinations. The patient died.7
x
An inmate complained of chest pain for more than 16 months. When he was finally
referred to a thoracic surgeon, a biopsy of a pulmonary nodule was ordered. When
finally performed, the biopsy revealed adenocarcinoma of the lung. The patient
died a week later.8
x
An inmate complained for nearly three years of symptoms consistent with laryngeal
cancer, yet he saw an Angola physician only a few times. After 33 months of
constant complaints, he was diagnosed with laryngeal cancer from which he
subsequently died.9
x
A 65-year-old man with a history of diabetes, severe coronary artery disease and
heart failure presented seven times in a single month with fevers as high as 103.6
degrees, altered mental state, and complaints of chest tightness. At one point,
while exhibiting an altered mental state and a fever of 103.6 degrees, he was
confined to a “locked room” in the infirmary with the “hatch up,” after which he was
not seen by physician for three days. Two days after being discharged from the
5
Patient #7.
Patient #6.
7
Patient #11.
8
Patient #17.
9
Plaintiff Joseph Lewis.
6
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infirmary, he was found vomiting in his cell. Angola doctors ordered EMTs not to
transport the sick man to the hospital. He died in his cell the next day.10
x
An inmate made an emergency sick call for severe flank pain. An x-ray and
physical exam yielded no diagnosis. The pain progressed to the point that the man
could not get out of bed, yet Angola’s medical director refused EMT requests to
transfer him to a hospital. Three days later he was found unresponsive in his cell.
He died the following day.11
x
An inmate with a tracheotomy presented with a progressively worsening cold and
made repeated emergency sick calls. The inmate was seen in Angola’s Acute
Treatment Unit (“ATU”) multiple times but each time he was simply returned to his
dormitory where he finally died.12
x
An inmate experienced two years of abdominal pain and weight loss that was
unheeded and untreated leading to hospitalization and a diagnosis of advanced
stage colon cancer, resulting in a preventable death.13
x
An inmate suffered repeated and extensive delays in getting a colonoscopy that
was ordered which resulted in emergency treatment, two hospital stays, and five
surgical interventions - all avoidable.14
x
The failure to administer ordered Statin drugs to an inmate resulted in a heart
attack and stroke requiring the inmate’s repeated avoidable hospitalizations.15
II.
BACKGROUND16
Before the Court is a class action case alleging unconstitutional medical care
provided at Louisiana State Penitentiary (“LSP”) as well as violations of the Americans
with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”) at the prison. The Court
10
Patient #39.
Patient #34.
12
Rec. Doc. 547, Prince Testimony at 101:14-102:5.
13
Patient #5.
14
Patient #11.
15
Patient #13.
16
The Court adopts by reference, and in full, its prior Opinion following the bench trial on liability. Rec. Doc.
594. All previous findings of fact and legal conclusions set forth therein are incorporated by reference in
this Opinion.
11
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bifurcated the case into separate liability and remedial phases. Following a trial on
liability,17 the Court found that LSP violated the Eighth Amendment and found violations
of the ADA and RA in the following ways:
1. Failing to provide constitutionally adequate clinical care in the following
particulars:
a. privacy in examinations;
b. lack of routine medical equipment in exam rooms;
c. lack of adequate medical records management;
d. lack of clinical hygiene and spacing;
e. episodic treatment of complaints;
2. Failing to provide constitutionally adequate medical care w/ qualified providers at
sick call;
3. Failing to provide constitutionally adequate access to medically necessary
specialty care:
a. in a timely manner;
b. failure to schedule and track specialty appointments;
c. failure to comply with testing and diagnostic requirements;
d. failure to execute appropriate follow-up care ordered by specialty care
providers;
e. and failure to coordinate care;
4. Failing to provide constitutionally adequate emergency care in the evaluation and
assessment of emergencies by qualified providers and failing to timely treat and/or
transport to hospital for emergent care;
5. Failing to provide constitutionally adequate, qualified staff in infirmary/inpatient
care;
6. Failing to provide constitutionally adequate medical leadership and organization
in the following particulars:
a. lack of meaningful mortality review;
b. use of correctional personnel to manage medical decisions;
17
The liability trial took place from October 9, 2018 through October 25, 2018.
Page 5 of 104
c. lack of peer review;
d. lack of medical staff involvement in budgeting;
e. lack of medical supervision by Dr. Lavespere; and
f. failure to maintain proper credentialing records;
7. Failing to comply with the ADA and RA in providing disabled inmates access to
programs and services due to physical and architectural barriers;
8. Failing to provide adequately trained, staffed, and safe orderly assistance where
physical modifications have not been made to provide access; failure to provide
proper oversight of health care orderlies;
9. Failing to comply with LSP’s ADA Directives in maintaining a qualified ADA
Coordinator and advisory committee to handle ADA issues;
10. Failing to make efforts to integrate disabled inmates within the spirit of the ADA
implementing regulations; 18
11. Failing to adequately train medical staff regarding ADA compliance;
12. Failing to appropriately evaluate and address ADA accommodation requests and
disability-related grievances;
13. Failing to identify and track disabilities and accommodation requests in a
meaningful way;
14. Failing to accommodate disabled inmates in applying discipline;
15. Maintaining blanket exclusionary policies for disabled inmates regarding access
to various services, activities, and programs in violation of the ADA.19
It should be noted that, after the trial on the liability phase had concluded,20 but
before the Court issued its Ruling, the Court telegraphed to the parties that:
The Court has taken under advisement the parties claims and defenses and
is preparing to issue a Ruling on the merits. The Court will find that the
medical care at Angola State Penitentiary is unconstitutional in some
respects and is prepared to Order injunctive relief addressing conditions
which the Court finds unconstitutional. The Court considers it to be in the
18
Plaintiffs state that they “raise no claims of unjust segregation under the ADA;” therefore, the Court will
consider this claim abandoned and it will not be addressed herein. Rec. Doc. 775, p. 26 (citation omitted).
19
Rec. Doc. 594, pp. 122-124.
20
Trial concluded on October 25, 2018.
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best interests of the litigants to attempt to reach an amicable resolution on
some or all of the claims.21
The record reflects that the parties engaged in settlement negotiations with the
assistance of the Magistrate Judge.22 When resolution appeared futile, in March 2021,
the Court issued its 124-page Opinion finding the Constitutional and statutory violations
noted above. The Court set the matter for a remedy trial. The Parties stipulated and
agreed that “for the remedy phase of trial, January 1, 2019 begins the relevant and
appropriate time period (“Relevant Period”) for the Court to assess whether the
constitutional deficiencies listed in the Court’s March 31, 2021 opinion have since been
remedied and what (if any) injunctive relief is necessary in light of the findings at trial.”23
The remedy trial was scheduled for June 2022, permitting LSP 15 months to address and
rectify the constitutional and statutory violations identified above.
The Court held a two-week remedy phase trial in this matter and admitted evidence
of current conditions24 to allow LSP to demonstrate, through proof, steps taken to address
and/or cure these constitutional and statutory violations.25
While LSP made some
changes during the pendency of this litigation, LSP steadfastly defends its healthcare
system and denies that it was constitutionally deficient at any time.
As the Court held previously in this case,
[T]he Fifth Circuit instructs that in a “prison injunction case.... The evidence
must show over the course of the timeline that officials knowingly and
unreasonably disregarded an objectively intolerable risk of harm, and that
they will continue to do so; and finally to establish eligibility for an injunction,
21
Rec. Doc. 578.
Rec. Doc. 579.
23
Rec. Doc. 636-3.
24
Up to the date of the remedy trial discovery cut-off date.
25
See Rec. Docs. 733, 744.
22
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the inmate must demonstrate the continuance of that disregard during
the remainder of the litigation and into the future.”26
While the burden of proof remains with Plaintiffs to establish entitlement to injunctive
relief, in circumstances like these, if Plaintiffs offer evidence that nothing has changed
since the liability phase, the burden shifts to the Defendants to demonstrate that the
constitutional deficiencies have been remedied. Because deliberate indifference may be
shown by a risk of harm that is “longstanding, pervasive, well-documented, or expressly
noted by prison officials in the past,”27 a “defendant’s past conduct” is a relevant factor to
consider in determining “that there is a reasonable likelihood of further violations in the
future.”28 Hence, the evidence underpinning the Court’s liability conclusions remain
relevant for purposes of crafting injunctive relief, unless LSP can demonstrate that current
conditions ameliorate the “likelihood of future transgressions.”29
Following the remedy phase trial, the Court permitted the Parties to submit Post
Trial Findings of Fact and Conclusions of Law and a Reply.30 Additionally, the Court
encouraged the Parties to find common ground and settle or stipulate on any issues
possible, and the Court provided the Parties significant time to reach an agreement
themselves, which proved fruitless. The Court has considered the Parties’ arguments,
the record and trial evidence, and the applicable law in reaching the conclusion that
injunctive relief is required in this case. The Court’s credibility findings, findings of fact,
26
Rec. Doc. 713, pp. 2-3 (quoting Valentine v. Collier, 993 F.3d 270, 282 (5th Cir. 2021) (quoting Farmer
v. Brennan, 511 U.S. 825, 846 (1993))(emphasis added)).
27
Farmer, 511 U.S. at 842.
28
CAE Integrated, L.L.C. v. Moov Technologies, Incorp., 44 F. 4th 257, 263 (5th Cir. 2022)(citation omitted).
29
Valentine, 993 F.3d at 280.
30
Rec. Docs. 770, 771, 774, 775.
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and conclusions of law are set forth below pursuant to Rule 52(a) of the Federal Rules of
Civil Procedure.
III.
GLOSSARY
ACA
American Correctional Association
ATU
Acute Treatment Unit
DOC
Department of Corrections
eMARs
Electronic Medical Administration Records
EMT
Emergency Medical Technician
ITO
Individual Treatment Order
LPN
Licensed Practical Nurse
LSP
Louisiana State Penitentiary
NCCHC
National Commission on Correctional Health Care
NP
Nurse Practitioner
NU
Nursing Unit
OLOL
Our Lady of the Lake Hospital
PLRA
Prison Litigation Reform Act
RN
Registered Nurse
SDE
Self-declared Emergency
UMC or UMCNO
University Medical Center (at New Orleans)
Page 9 of 104
IV.
FINDINGS OF FACT
The following findings of fact are supported by the evidence in the record. Where
a particular fact was controverted, the Court weighed the evidence and evaluated the
credibility of the testifying witnesses to make a finding.
EIGHTH AMENDMENT VIOLATIONS
A. Expert Witnesses - Credibility31
1.
Plaintiffs’ expert Madeleine LaMarre (“LaMarre”) is a nurse practitioner with over
30 years of experience in corrections, including serving as the Nursing Director and
Clinical Services Manager in the Georgia Department of Corrections and 15 years of
experience monitoring correctional facilities. The Court accepted LaMarre as an expert in
correctional health and found her testimony credible.32
2.
Plaintiffs’ expert Dr. Susi Vassallo (“Dr. Vassallo”) is a board-certified physician in
emergency medicine and medical toxicology. Dr. Vassallo was accepted by the Court as
an expert in emergency medicine, toxicology, and correctional medicine, and the Court
found her testimony credible.33
3.
Plaintiffs’ expert Dr. Mike Puisis (“Dr. Puisis”) is a board-certified physician in
internal medicine with over 30 years of experience in correctional settings. Dr. Puisis was
31
The credibility of fact witnesses is discussed specifically when referenced.
PX 1-a, p.5; Rec. Doc. 748, LaMarre Testimony at 86:6-9, 87:3-14, 90:24-91:2. LaMarre currently
consults with the Department of Homeland Security and previously consulted with the Centers for Disease
Control and Prevention. She served as an associate editor of the textbook Clinical Practice in Correctional
Medicine, Second Edition. See id.
33
Dr. Vassallo treats patients from correctional facilities, including the New York penal institution Rykers
Island, at Bellevue Hospital in New York City. She also consults with the Department of Homeland Security,
Division of Civil Rights and Civil Liberties regarding medical care in Immigration and Customs Enforcement
Detention Centers. PX 1-a, p. 6; Rec. Doc. 749, Vassallo Testimony at 11:5-7; 14:8-12.
32
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accepted by the Court as an expert in internal medicine and correctional medicine, and
the Court found his testimony credible.34
4.
Plaintiffs’ expert Angela Goehring (“Goehring”) is a registered nurse with over 25
years of experience in correctional health care, including serving as Chief Nursing Officer
for a private correctional health care company. Goehring was accepted by the Court as
an expert “in the field of correctional medicine with an emphasis on nursing care and
administration,” and the Court found her testimony credible.35
5.
Plaintiffs’ experts reviewed a sample of 60 inmate patients who died or required
hospitalization after January 1, 2019, the start of the “relevant and appropriate time period
for the Court to assess whether the constitutional deficiencies listed in the [Liability
Opinion] have since been remedied and what (if any) injunctive relief is necessary in light
of the findings at trial.”36 LaMarre, Dr. Vassallo, and Goehring visited LSP on April 6, 7,
and 8, 2022.37 Plaintiffs’ experts reviewed numerous policies, minutes, reports, and other
documents from LSP and DOC in preparation for formulating their opinions and preparing
their joint expert report.38
34
He was Assistant Medical Director, Medical Director, and Chief Operating Officer for the Cook County
Jail, served as Regional Medical Director with Correctional Medical Services for New Mexico, and served
as Medical Director of correctional facilities with Addus Health Care. He has been retained by the United
States Department of Justice, the District Court for the Northern District of California, and numerous
state/local jurisdictions, and he has served as a court-appointed expert or monitor in several cases. He is
the author of the leading textbook on correctional medicine and has helped revise or establish standards
of care for the American Diabetes Association, the National Commission on Correctional Health Care, and
the American Public Health Association. PX 1-a at 5; Rec. Doc. 750, Puisis Testimony at 7:10-15; 9:1-6;
15:23-25.
35
She served on the American Correctional Association’s Commission for Accreditation, has worked with
court-appointed monitors, and has served as an expert and consultant. PX 1-a, p. 6; Rec. Doc. 751,
Goehring Testimony at 35:13-16; 58:9-12.
36
PX 1-a, p. 4; see generally PX 1-c (full chart review for all 60 patients), JX 77-a (stipulation).
37
PX 1-a, p. 3.
38
Id. at 7-8.
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6.
Plaintiffs’ experts submitted a 136-page joint report, including a 443-page appendix
of detailed chart reviews.39 A supplemental report was submitted jointly by LaMarre and
Goehring after they evaluated LSP’s electronic medical administration records
(“eMAR”).40
7.
Generally, Plaintiffs’ experts opined that “[p]atients at LSP with serious medical
needs continue to face a substantial risk of serious harm, including preventable
hospitalizations and deaths.”41 Furthermore, “the vast majority of medical records from
the remedy period contained multiple examples–typically pervasive–of often grossly
substandard medical care.”42
8.
Defendants’ expert Dr. David Mathis (“Dr. Mathis”) is a physician board-certified in
family medicine who serves as a medical consultant for the Office of Legal Affairs for
California Correctional Health Care Services.43 The Court accepted Dr. Mathis as an
expert in the field of correctional medicine.44 Nevertheless, while the Court does not
discount Dr. Mathis’ opinions in full, the Court finds that, in several instances, Dr. Mathis’
medical opinions were entitled to less weight than those offered by Plaintiffs’ experts.
Outside of the Maryland prison, Dr. Mathis has never been tasked with evaluating the
overall delivery of medical care at a prison; he has evaluated one jail.45 In his expert
report, almost half of Dr. Mathis’ chart review section (approximately 50 pages) is a
verbatim copy of LSP’s mortality reviews with no independent analysis or comment by
39
See id.; PX 1-c.
See PX 5-a; PX 5-b (amended chart reviews incorporating eMARs).
41
PX 1-a, p. 8.
42
Id.
43
Rec. Doc. 752, Mathis Testimony at 139:22-140:23. Dr. Mathis is also a Certified Correctional Health
Professional. Dr. Mathis previously worked at a California prison and served as the medical director at a
Maryland prison. Id. at 141:14-22; 143:17-144:4, 145:23-146:11.
44
Id. at 154:11-12.
45
Rec. Doc. 753, Mathis Testimony at 9:1-3; 9:22-10:5.
40
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Dr. Mathis.46 Although Dr. Mathis opined in his report that he found less than five
standard of care violations by LSP, at trial he testified that he found ten instances of care
that fell below the standard of care.47 During the course of his testimony, he
acknowledged additional standard of care deficiencies.48 Further, although Dr. Mathis
criticized Plaintiffs’ experts’ sampling methodology in both his report and deposition,
stating that accreditation bodies review records randomly, when presented with
contradictory testimony from members of such bodies at trial, he admitted he could not
refute that testimony.49 Notably, Dr. Mathis did not opine on several critical issues before
the Court regarding the systemwide delivery of medical care at LSP, including: (a)
whether providers treat complaints episodically;50 (b) whether providers routinely fail to
obtain adequate medical histories upon evaluation;51 (c) whether providers routinely
perform physician examinations;52 (d) whether providers read and monitor testing,53 (e)
whether providers monitor or manage medications;54 (f) whether patients are timely and
correctly sent out for emergency care;55 or (g) whether LSP’s “new” method of responding
46
Id. at 29:24-30:4; 24:15-30:4 (comparing Dr. Mathis’ expert report to LSP mortality reviews); see DX 35c at 94-211.
47
Compare DX 35-c at 212 with Rec. Doc. 753, Mathis Testimony at 12:10-15:14.
48
See, e.g., Rec. Doc. 753, Mathis Testimony at 30:7-31:14 (nurses in an infirmary should note the time
they take vital signs, which did not occur at LSP); id. at 31:17-32:15 (trained personnel should use an AED
for a pulseless person not breathing, which did not happen for Patient #25); id. at 34:6-9, 42:11-44:11
(patient who is incontinent and cannot get out of bed due to back pain should be presented to provider,
which did not happen for Patient #6); id. at 47:17-51:5 (patient with acute hepatic failure should go to
emergency room, which did not happen for Patient #33).
49
See id. at 8:11-9:21; see also DX 35-c at 206-07; Rec. Doc. 698-1 at 11.
50
Rec. Doc. 753, Mathis Testimony at 65:21-23.
51
Id. at 65:4-8.
52
Id. at 65:9-12.
53
Id. at 65:13-16.
54
Id. at 65:17-20.
55
Id. at 59:11-17.
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to emergency sick call was adequate.56
The Court found Dr. Mathis’ opinions ill-
supported and unpersuasive.
9.
Defendants’ expert Michael McMunn (“McMunn”) is a nurse practitioner with a
Ph.D. in Nursing, and he is a Certified Correctional Healthcare Professional.57 McMunn
currently works for Southern Health Partners as a contractor in seven jails and one prison
work camp.58 The Court accepted McMunn as an expert in the field of correctional
medicine.59 For the remedy phase of this case, McMunn conducted a two-day site visit to
LSP during which he reviewed 22 charts, conducted 63 interviews, observed 50 “medical
encounters” involving inmate patients – five of which were sick calls. McMunn took no
notes during this site visit, admitted he performed no calculations to support his
conclusion that LSP is complaint with 95% of the National Commission on Correctional
Health Care (“NCCHC”) regulations, and admitted he relied solely on his memory in
reaching his conclusions.60 For more detailed reasons set forth infra, the Court finds that
McMunn’s testimony and conclusions are entitled to little weight.
10.
Defendants’ expert Dr. John Morrison (“Dr. Morrison”) is a general surgeon who
previously served as the DOC Medical Director from April 2018 until April 2020.61 He
currently serves as the Section Chief of General Surgery for Louisiana State University’s
section of University Medical Center New Orleans (“UMCNO” or “UMC”).62 In this role,
Dr. Morrison performs procedures on LSP inmate patients at LSP and UMC.63 The Court
56
Id. at 61:23-63:15.
Rec. Doc. 756, McMunn Testimony at 4:25-5:2; 5:6-7.
58
Id. at 6:9-12; 8:12-22.
59
Id. at 17:16-18.
60
Id. at 22:25-23:2; 85:23-86:3; 88:12-14.
61
Rec. Doc. 754, Morrison Testimony at 5:18-21; 10:6-9.
62
Id. at 7:4-6.
63
Id. at 9:16-10:5.
57
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accepted Dr. Morrison as an expert in the field of general surgery with an emphasis in
surgical administration.64 The Court found Dr. Morrison’s testimony credible but largely
irrelevant to the majority of the constitutional violations at issue during the remedy trial.
B. Clinical Care
11.
Based on the testimony and a review of evidence discussed below, the Court finds
that the delivery of clinical care at LSP remains constitutionally deficient. Because sick
call is a part of clinical care, some records discussed below will include references to sick
call encounters.
The Court previously found clinical care constitutionally inadequate in the following
ways: (a) privacy in examinations; (b) lack of routine medical equipment in exam rooms;
(c) lack of adequate medical records management; (d) lack of clinical hygiene and
spacing; and (e) episodic treatment of complaints. Considering the evidence presented
at trial, the Court finds that LSP has properly remedied (a) privacy in examinations;65 (b)
lack of routine medical equipment in exam rooms;66 and (d) lack of clinical hygiene and
spacing.67 Plaintiffs concede these improvements.68 However, the lack of adequate
medical records management and the episodic treatment of complaints persist in LSP’s
delivery of clinical care. Clean rooms and the availability of medical equipment do not
solve the constitutionally substandard care.
64
Id. at 14:3-5.
Rec. Doc. 752 at 100:10-18; Rec. Doc. 755 at 74:1-3, 81:6-12; Rec. Doc. 757 at 131:4-6.
66
Rec. Doc. 748 at 198:2-13; Rec. Doc. 752 at 100:15-18; DX46.0013; DX46.0152; DX46.0188.
67
Rec. Doc. 748 at 196:22-197:8; Rec. Doc. 755 at 76:15-24; DX46.0013; DX46.0152; DX46.0188;
68
Rec. Doc. 771, p. 27 (citing PX 1-a, p. 37; PX 44-c, p. 4, Response to ROG 1; Rec. Doc. 748, LaMarre
Testimony at 146:16-22; see also PX 1-a at 36-37).
65
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Laudably, LSP hired additional nurse practitioners and utilizes them in clinical
care.69 However, this fact alone does not establish that clinical care at LSP is now
constitutionally adequate.
The Court rejects Defendants’ contention that medication administration is not an
issue before the Court “because it was not addressed in the Liability Ruling.”70 This
contention is demonstrably false as the Court explicitly held that LSP’s failure to monitor
and manage medications contributed to constitutionally inadequate clinical care.71
Patient # 13
Patient #13, 61 years old, had numerous health problems, including HIV and
chronic kidney disease.72 This patient’s record documents multiple medical errors, the
most egregious being the administration of Toradol for an infection known to be resistant
to this medication. LSP providers repeatedly failed to administer his HIV medication,
provided erroneous information to specialists regarding his medication dosage, and
disregarded the prescriptions ordered by specialists, reverting instead to prior, ineffective
medications.73
Specialists repeatedly instructed that Patient #13 was not to be given Toradol or
other NSAIDs because they worsened his kidney function. The cover of his medical
record indicated in bold letters “NO TORADOL IS TO BE GIVEN.”74 Yet, during the last
week of Patient #13’s life, he was given Toradol by a LSP provider.75 Hours later, Patient
69
Rec. Doc. 756, McMunn Testimony, at 74; see also PX1-a, p. 16.
Rec. Doc. 770, p. 16.
71
Rec. Doc. 594, p. 10. The Court specifically discussed the failure of medication administration with
respect to Patient #13, id. at 11, Patient #6, id. at 17, Patient #53, id. at 19, and Patient #18, id. at 24.
72
Rec. Doc. 748, LaMarre Testimony at 110:23-111:2; PX 1-a, pp. 66-67; JX 13.
73
Rec. Doc. 748, LaMarre Testimony at 112:11-116:12, 123:14-127:13; JX 13, pp. 58, 158, 755, 883, 919,
1080-82, 1152; JX 68, pp. 2222, 2252, 2321.
74
Rec. Doc. 748, LaMarre Testimony at 127:14-132:17; JX 13, pp. 1, 402, 404, 405, 1074, 1035, 1085.
75
Id.
70
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#13 made a self-declared emergency (“SDE”) request, advising that he was unable to
urinate since receiving the shot of Toradol.76 In response, LSP providers treated him for
a urinary tract infection with an ineffective medication, discharged him to his room, and
set up a follow-up for the next week.77 Patient #13 never made the follow-up as he died
within the week due to sepsis, which “may very well have come from an improperly treated
urinary tract infection.”78
Defendants’ attempt to invalidate LaMarre’s “initial opinions” about Patient #13 for
her purported admission that they were “mistaken and inaccurate,” falls flat.79 Defendants
inflate the impact of these errors and claim that “Plaintiffs offered no explanation for NP
LaMarre’s errors,”80 which is demonstrably false. LaMarre acknowledged that she had
erroneously concluded that this patient had not had a urology consult and had not been
treated for pneumonia.81 However, LaMarre explained the reason for her errors:
What I'd like to report is that in preparing for trial, I realized that there were
two medical record volumes for this patient, but I had only reviewed one
medical record volume because they were produced at different times.
In reviewing the second volume -- or both volumes, I realized that each -that both volumes were basically for the same chronological period. Both
volumes contained documents from the same time period, except that one
volume contained some documents that were not in the other volume. There
were some duplicate documents. They were not in chronological order; and
therefore, there are some -- while my overall opinions remained the same,
there are a few factual statements made in my report that I would like to
correct. So I'd just like to mention that before I testify about this case.82
LaMarre further testified that the two volumes of medical records for Patient #13 was
76
Id. at 129:23-130:4; JX 13, p. 405.
Id. at 130:5-131:4; 131:14-132:9; JX 13, pp. 404-05.
78
Id. at 132:10-17.
79
Rec. Doc. 770, p. 18.
80
Rec. Doc. 774, p. 9.
81
Rec. Doc. 748, LaMarre Testimony, at 109-110.
82
Id. at 109:7-21.
77
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an illustration of the systematic issues involving the medical records. When
you have two separate medical volumes that are covering the -- you know,
that are not chronological and complete, then the providers don't know
what's happening with the patient, either. So their ability to be up to date
and current and know the latest -- have a copy of the latest documents and
consults and hospital reports is impaired by the lack of a complete and
chronological record, and it leads to errors in treatment.83
These benign errors, caused by LSP’s egregious medical records management,
do not render LaMarre’s otherwise supported conclusions about Patient #13’s care
invalid.84 The Court finds that LSP’s medical records remain in shambles. They are
disorganized and incoherent. Medical records are the most important repository of
healthcare information and a critical source of historical complaints and treatment. The
utter and complete disarray of the medical records is emblematic of indifference.
Defendants rely on Dr. Mathis’ opinion that using an antibiotic “long enough” could
“still work” even where an infection has been historically resistant.85 That LSP’s hired
expert advocates for the prolonged use medication known to be ineffective, in the hopes
that it might work, is deliberately indifferent to the patient’s medical needs. In any event,
Defendants failed to rebut Plaintiffs’ evidence regarding Patient #13’s HIV medication
lapses, providing specialists with incorrect information, or disregarding specialists’
prescription orders without explanation.
The treatment of Patient #13 is unrebutted evidence of LSP’s failure to follow
specialists’ orders, callous indifference to medication efficacy, indifference to treatment
83
Id. at 110:10-18.
Defendants’ suggestion that LaMarre’s criticism of giving Patient #13 Toradol is a “newly developed
opinion” raised somehow as a last resort and “provided only after her other opinions were refuted,” is
completely without merit. Rec. Doc. 774, p. 9. It is undisputed that the cover of Patient #13’s chart contained,
in bold letters, “NO TORADOL IS TO BE GIVEN.”
85
Rec. Doc. 753, Mathis Testimony, at 108:4-11.
84
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plans and protocols, and incoherent, disorganized, untrustworthy medical records, all of
which contribute to abysmal, unconstitutional medical care.
Patient #20
Patient #20 was 52 years old and had suffered from hepatitis C since 2021.86 He
made four sick calls between February and August 2021 complaining of a wide range of
symptoms, from lower abdominal pain to yellow eyes and an inability to lie on his left side;
he also complained he was not receiving his hepatitis C medication.87 The EMT referrals
of the patient for “M.D. review” were disregarded.88 Defendants admit that Patient #20
was not seen by a provider until he was referred to the hospital three weeks later.89
Defendants’ expert Dr. Mathis agreed that the three week failure to see Patient #20
between August 31, 2021 and September 21, 2021 fell below the standard of care.90
Clinical care was non-existent for this Patient. The neglect and apathy shown rise to the
level of callous disregard.
Patient #42
Patient #42 is 25 years old with a history of asthma and cavitary pneumonia who
was also under mental health treatment.91 This patient made numerous sick call requests
for several symptoms, including spitting up blood, with no subsequent physical evaluation
86
JX 20, pp. 5, 123.
Rec. Doc. 755, Goehring Testimony at 13:8-17:11; JX 20, pp. 112, 116, 123-24.
88
Id.
89
Rec. Doc. 774, p. 10.
90
Rec. Doc. 753, Mathis Testimony at 13:16-20. Goehring admitted that she was incorrect about the
breadth of the alleged delay in treatment for Patient #20. She acknowledged that she did not see the
hospital record demonstrating that Patient #20 was in the hospital from September 22, 2021 until October
31, 2021, and LSP could not have responded to this patient’s needs or refill medications during that time.
See Rec. Doc. 755, Goehring Testimony at 118:21-119:22. Nevertheless, even Dr. Mathis still found that
delays in treating this patient attributable to LSP were below the standard of care.
91
Rec. Doc. 748, LaMarre Testimony at 133:1-2.
87
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by a provider.92 On April 3, 2020, the patient reported a SDE after spitting up blood.
LaMarre testified that spitting up blood is a “red flag symptom” of potentially serious
medical issues, and this should have prompted a physician examination “right away.”93
Although the patient was “seen” on April 4, 2020, because of the utter disarray of LSP’s
medical records, the record for this patient is indecipherable.
A physician doesn’t document any action or acknowledgement of the [April
3rd SDE] form until April 6th. And it appears that the initial response of the
physical was sick call, as needed, or medical provider.”
That may be – we actually don’t know who that is. We don’t know if it’s a
physician. We don’t know if it’s a nurse practitioner. Because one of the
medical record issues is that the providers do not legibly date, time, sign,
and you don’t know their credentials. So you don’t know who is seeing the
patient. But at any rate, they – the plan is clinical follow-up in eight weeks.94
After a third SDE on April 6, 2020, the patient was sent to the ATU and ultimately
to the hospital where he was diagnosed with cavitary pneumonia.95
Defendants’ new sick call policy, whereby sick call was conducted via telemedicine
by a nurse practitioner, did not improve the quality of care for this patient.
After
implementation of the new sick call policy, on January 14, 2022, Patient #42 made a SDE
complaining that he was suffering chest pain for two days; the EMT provided no treatment
and referred the request to a provider, who noted only “S/C PRN [sick call as needed]”
four days later without ever seeing the patient.96
92
Id. at 132:24-137:4, 139:13-144:24; PX 1-a, pp. 53, 55-56, 58-59; JX 42, pp. 38-39, 41-42, 74-76.
Id. at 134-135. Defendants criticize LaMarre’s evaluation of Patient #42’s treatment, claiming that, for
the April 2020 incident, the patient was experiencing an adverse reaction to the use of “Mojo.” Rec. Doc.
770, p. 19, n. 106. However, this is irrelevant to the question of whether this patient was adequately
assessed and treated for the reported symptoms.
94
Id. at 135:11-21.
95
Id. at 136:8-14.
96
Id. at 139:13-140:9; JX 42 at 42. Again, the state of LSP’s medical records made it difficult to discern who
provided the patient with care: “so initially when I reviewed this I thought that the patient was seen by an
EMT because there’s no legible signature. But I came to appreciate that a nurse practitioner saw this
patient on the 19th.” Id. at 140:24-141:2.
93
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Five days later, he made another sick call request and was seen via telemedicine
by Nurse Practitioner Ronald Bordelon (“Bordelon”), who failed to take an adequate
history, failed to physically examine the patient, and failed to chart or acknowledge
awareness of the patient’s previous cavitary pneumonia and the risk of reoccurrence.97
Defendants note that this patient had three encounters with providers over a twoweek period. However, a mere encounter with a health care provider is not evidence of
medical care or treatment, and frequency does not establish constitutionally adequate
care. Defendants did not address why no physical examination of this patient was
performed, why he was not seen by a doctor after three days of spitting up blood, or why
a medical provider did not review his sick call form for seven days although he was ill
enough to be sent to OLOL in the meantime.98
Patient #42’s care, particularly subsequent to LSP’s purportedly improved sick call
procedure, is disturbing. It suggests a level of apathy and indifference impervious to
changes.
Other Patients, Generally
Dr. Puisis documented numerous additional patient charts that revealed systemic,
recurring problems with clinical care.99 Dr. Mathis also acknowledged the following
97
Id. at 140:17-142:18; JX 42, p. 41. (“Now in telemedicine the patient is not with the nurse practitioner, so
I’m not sure exactly how that got documented. But it’s an inadequate history for heart pain: ‘When did it
start? What is the heart pain like? Do you have any associated symptoms? Do you have cough? Do you
have palpitations?’ there does not appear – even though the medical record should be with the nurse
practitioner, it doesn’t appear that the nurse practitioner looked back and saw what had happened with the
patient to know that in the past he’s had cavitary pneumonia … the nurse practitioner doesn’t make a
diagnosis. What is this patient – he just says he got intermittent pain when laying down. Not a particularly
relevant medical evaluation.”).
98
See PX 1-a, p. 59.
99
See PX 1-a, pp. 68-69 (Patient #15, whose condition of COPD was left off the “problem list” in his medical
records and therefore was not addressed in the “woefully inadequate” medical evaluations in his clinical
visits; even after a test showed severe obstruction, Dr. Toce did not document a follow-up plan or see the
patient before his death from COPD); id. at 120 (Patient #29, who was given NSAIDs despite hypertension
Page 21 of 104
standard of care violations in LSP’s clinical care: Patient #2 was not given thyroid function
tests for hypothyroidism; Patient #47 had hematuria that was assessed as stable without
urinalysis; Patient #32 did not receive an EKG ordered to diagnose chest pain; Patient
#28 was not put on insulin despite elevated hemoglobin A1-C and the failure of oral
diabetic medications;100 and Patient #33 had autoimmune hepatitis and developed signs
of acute hepatic failure but was discharged to quarters instead of being sent to the
hospital.101
Medication Administration/Security Oversight
Medication administration, a critical part of clinical care, is abysmal at LSP, and
like the general medical records, the medication administration records remain unreliable
and disorganized.102 The state of these records directly contributes to the failure of health
and kidney damage and whose hypertension was not treated); id. at 121 (Patient #30, who made sick call
requests or ATU visits five times in a month without being examined by a provider, delaying the diagnosis
of metastatic colon cancer); id. at 121-23 (Patient #17, who was incorrectly diagnosed with venous
insufficiency instead of deep vein thrombosis); id. at 123-24 (Patient #18, who did not receive physical
examination, monitoring, or a history in clinical encounters); id. at 124 (Patient #19, who submitted multiple
health services requests related to a degenerative joint disease without a timely and appropriate
evaluation); id. at 53-54, 65 (identifying problems in health care encounters in January 2022 in Patients
#42, #49, #48, & #47); PX 1-c at 87 (noting inadequate assessments for Patient #46 in January and
February 2022); id. at 91, 349 (noting problems in records for Patient #47 in January 2022); id. at 99-100
(same for Patient #48); id. at 106-107 (same for Patient #49); id. at 193 (noting problems in the MARs
between December 2021 to March 2022 for Patient #39); id. at 194 (noting problems in the February 2022
MARs for Patient #40); id. at 215 (noting inadequate assessment in January 2022 for Patient #41); id. at
219-220 (identifying multiple issues in the records from January 2022 for Patient #42); Rec. Doc. 748,
LaMarre Testimony at 155:22-160:5 (describing inadequate sick call from January 2022 for Patient #49);
JX 49, p. 288.
100
Rec. Doc. 753, Mathis Testimony at 12:10-15:3.
101
Id. at 48:17-51:4
102
PX 1-a, pp. 10-11; 38-40; 72-79; PX 2; see, e.g., Rec. Doc. 748, LaMarre Testimony at 179:6-180:21
(testifying about the unreliability of the MARs in Patient #14, and how it this error was not isolated to this
patient); see also Rec. Doc. 755 Goehring Testimony at 6:18-7:13 (describing how Dr. Johnson and the
Director of Nursing continued to give Plaintiffs’ medical experts the wrong information about the timing of
pill call, indicating that they did not even know when pill call took place); Rec. Doc. 749, Creppel Testimony
at 241:21-242:24 (describing gaps in receiving necessary medication, and issues with the correctional
officers administering the medications).
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care providers to adequately monitor and evaluate patients’ medical regimens.103
Defendants admit no changes have been made to medication management, other
than the reduction in the frequency of administration,104 and they continue to improperly
allow “correctional officers [to] supervise the delivery of medications by other correctional
officers,” as criticized by the Court in the Liability Ruling.105
The change in the time of medication dispensation is particularly dangerous for
insulin-dependent patients, who are not receiving sufficient or timely insulin medication or
testing strips to determine the amount of insulin they need.106
LaMarre credibly opined that the “medication management system is completely
broken, from ordering the meds, to getting them to the pharmacy, to timely dispensing the
meds, to administering the meds, to documenting the meds in the medication
administration record.”107
Considering the evidence submitted at trial relating to clinical care at LSP, the
Court finds that the delivery of clinical care remains constitutionally inadequate. While the
physical space and equipment in the treatment rooms has improved, the quality of clinic
103
Rec. Doc. 748, LaMarre Testimony at 98:19-25; see, e.g., Rec. Doc. 749, Vassallo Testimony at 54:415 (describing how Patient #55’s MARs did not include the information for the provider treating him in the
emergency room to know the accurate information regarding his blood pressure medication).
104
PX 1-a at 73; see Rec. Doc. 748, LaMarre Testimony at 175:18-178:8 (describing how the reduced
frequency results in therapeutically inappropriate time between doses, especially for insulin administration);
id. at 178:4-8; 178:19-21 (describing the reduction in frequency of pill call as illustrative of the fact that
“medication administration has been turned completely over to custody. It is a security operation with no
oversight by the medical team.”).
105
Rec. Doc. 594, ¶ 99; see also PX 1-a, p. 72; JX 78, T. Hooper Depo. at 62:1-4; JX 69-a, R. Lavespere
Depo. at 124:1-4, 20-23; see also Rec. Doc. 748, LaMarre Testimony at 174:16-175:17 (describing how
the training for correctional officers at LSP is inadequate and how their use in pill call contravenes national
standards based on the prison’s size).
106
PX 1-a at 10-11; 38-40; 72-79; see Rec. Doc. 594 at ¶ 33; see, e.g., Rec. Doc. 747 Mischler Testimony
at 49:4-50:23; 68:1-9 (describing the process for receiving his sliding-scale insulin twice a day from
correctional officers and how LSP, as often as once a week, including the day prior to his testimony, does
not have the test tabs for him to test his levels preventing him from knowing how much insulin to give
himself); Rec. Doc. 748, LaMarre Testimony at 151:1-152:7 (testifying on how LSP does not record how
much insulin patients receive twice-daily in their medical records).
107
Rec. Doc. 748, LaMarre Testimony at 97:4-8, 115:14-19.
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care provided is unchanged. The evidence demonstrates that patients continue to be
treated episodically, and medical records management and medication administration are
still seriously flawed. The medical records remain a significant impairment to delivering
minimally adequate clinical care.
C. Sick Call
12.
Sick call is an integral part of clinical care. Sick call is the principal means through
which a clinical healthcare encounter is triggered. The Court previously made the specific
finding that LSP’s sick call policy was constitutionally inadequate because it failed to
provide patients with medical care by qualified providers. While the Court is encouraged
by some changes made to sick call, LSP’s sick call process remains a constitutionally
inadequate component of clinical care.
It is undisputed that LSP made changes to its sick call policy and procedures
between the liability trial108 and the remedy trial.109 Pursuant to LSP’s new sick call policy,
effective approximately November 1, 2021, inmates who submit a sick call request
received by noon Sunday through Thursday are seen by a nurse practitioner via
telemedicine on the following day.110 NP Bordelon is responsible for sick call at LSP.111
LSP secured telemedicine equipment and acquired portable buildings so patients could
be seen via telemed by nurse practitioners from their dorms or cell blocks.112
Bordelon described the new sick call process as follows: inmates submit routine
sick call slips before noon Sunday through Thursday, and the slips are taken to the ATU
108
The Liability Trial began on October 9, 2018.
The Remedy Trial began on June 6, 2022.
110
Rec. Doc. 752, Bordelon Testimony at 90; DX8-aaa; PX 44-c, p. 9, Response to ROG No. 12; Rec. Doc.
717, pp. 4-5; PX 21-ssss, LSP Directive 13.061 (Mar. 3, 2022).
111
Rec. Doc. 752, Bordelon Testimony at 90.
112
Id. at 91-92.
109
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where a nurse or a NP performs a paper triage of the slips;113 any sick call slip stating an
urgent condition can be seen immediately.114 The remainder are seen the next morning
on Monday through Friday by a NP via telemed.115 The NP has in their possession the
sick call slip and the patient’s medical record.116 The NP also has electronic access to the
patient’s list of medications, lab reports, duty status, and upcoming appointments.117 The
patient is in a private room during the sick call visit,118 and an EMT is with the patient to
take vital signs and facilitate the sick call visit.119
While the Court is encouraged by the improvements made to the sick call process,
Plaintiffs presented evidence which demonstrates that these improvements have not
transformed the level of care.120
NCCHC standards require daily sick call triage.121 LSP’s sick call policy has
complaints reviewed the next day; further, sick call requests are only reviewed five days
of the week at LSP.122 Additionally, the sick call request form provides no place for the
patient to time and date their request; there is likewise no place to time and date when
the request was received. Thus, there is no documentation of policy compliance, i.e., that
triage actually occurs within the timeline set forth in the policy.123
113
Id. at 107-108. The ACA provides for paper triage, meaning that the nurse triages the sick call slips
without a face-to-face encounter. Rec. Doc. 755, Goehring Testimony at 72:7-13.
114
Rec. Doc. 752, Bordelon Testimony at 108.
115
Id. at 92–93, 96.
116
Id. at 93, 95-96.
117
Id. at 94:10-14.
118
Id. at 100; see also Rec. Doc. 755, Goehring Testimony at 74:1-3; Rec. Doc. 757, Johnson Testimony
at 131–132.
119
Rec. Doc. 752, Bordelon Testimony at 99:13-19, 196:5-16; see also Rec. Doc. 757, Johnson Testimony
at 131–132.
120
PX 1-a, pp. 49-58.
121
Rec. Doc 748, LaMarre Testimony at 156:17-157:2.
122
Id.
123
PX 1-a, p. 50; Rec. Doc 748, LaMarre Testimony at 156:17-157:2.
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While LSP’s sick call policy defines triage as “[t]he review or screening of offender
health concerns by health care personnel to determine the priority of need and the
appropriate level of intervention[,]” the triage process is not explained and triage is not
noted in patient charts.124 Additionally, patient charts are replete with examples of sick
calls where vitals were not taken, physical examinations were not performed,
documentation of symptoms/medical history did not occur, and patients were charged a
co-pay despite receiving no examination, diagnosis, or treatment.125
The lack of physical examinations during sick call encounters is highly problematic.
The encounters appear to be “driven and controlled by the EMT who was with the patient
[rather] than by the Nurse Practitioner who should be guiding the encounter as the
provider.”126 The telemedicine equipment contributes to the lack of an adequate physical
exam since the camera used to assess the patients has a poor resolution quality.
Defendants and Dr. Mathis acknowledged that this equipment was not always available
or properly functional.127 Additionally, performing a physical examination is beyond the
skill training of an EMT. The NP should be directing the hands-on examination. As
implemented, LSP’s telemedicine sick call policy amounts to a band-aid on a gaping
wound.
124
DX 8-aaa; see Rec. Doc. 757, Johnson Testimony at 199:18-200:1 (admitting that the updated policy
does not describe the nurse or nurse practitioners conducting a triage step); Rec. Doc. 752, Bordelon
Testimony at 123:2-125:6 (testifying that there is no documentation of the “triage” on the sick call form, nor
is it mentioned in the LSP directive for sick call or Defendants’ interrogatory response describing the new
sick call procedure); JX 71-d; Rec. Doc. 752, Bordelon Testimony at 108:9-11 (admitting that he has never
found some patients that had an emergent issue when conducting the “triage” of the forms the day before);
Rec. Doc 748, LaMarre Testimony at 202:16-203:1.
125
See PX 1-a, pp. 52-55.
126
Id. at 52.
127
Rec. Doc. 752, Bordelon Testimony at 101:20-102:6; JX 69-a, Lavespere Depo. at 128:15-21; Rec. Doc.
753, Mathis Testimony at 75:13-16. This problem is exacerbated by the fact that EMTs do not receive
training before assisting in telemedicine sick calls. JX 69-a, Lavespere Depo. at 225:7-18.
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The Court agrees that:
The use of telemedicine is a helpful adjunct option when the patient is
unable to be transported, such as after clinic hours when the provider is not
physically on-site, and during times such as severe weather, etc. The use
of telemedicine as the only mechanism to conduct patient sick call
encounters is not optimal. Given the limited optics, poor resolution, and
placing the responsibility of the physical exam on an EMT is not the same
as an in person patient-physician/nurse practitioner encounter. Many
physical findings such as heart tones, lung sounds, abdominal examination,
and close examination of many skin issues can be easily lost when done
via camera. Every effort should be made to conduct the sick call encounters
in person, unless extenuating circumstances place a burden on the patient
to travel to the clinic location.128
The access to a patient’s medical record during sick call is certainly an
improvement; however, the evidence demonstrates that the medical records are not
necessarily being reviewed during sick call, rendering this ostensible improvement
meaningless. Plaintiffs’ experts observed a sick call encounter with Patient #42 where
NP Bordelon did not attempt to access eMARs. Bordelon testified that, although he
reviewed the patient’s medical list–which does not show whether the patient received the
medications–he was unable to access the medical record via eMARs because he did not
know his login.129
Evidence that sick call is still essentially performed by EMTs even though there is
a NP on the other end of the screen went unrefuted. Patient #42, discussed previously,
is one example of the persistent incompetence of the sick call process at Angola. As a
matter of their discipline, EMT’s are not qualified to medically manage sick call. To
alleviate this scope of practice dilemma, LSP added a layer of medical oversight by a
128
PX 1-a, pp. 51-52.
Rec. Doc. 752, Bordelon Testimony at 128:9-129:9. Plaintiffs claim that Bordelon does not know how
to “access medical administration records” is not exactly supported by this testimony. Nevertheless,
Bordelon’s testimony demonstrates that there is no point to having access if providers are not using eMARs
during sick call visits, whether it is because they forget their logins or for any other reason.
129
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nurse practitioner, but the qualitative nature of the medical care is unchanged, and it is
exacerbated by the physician’s avoidance of clinical care.
Sick call is the most important component to the delivery of health care because it
is the access point to meaningful and early diagnosis and treatment; it should minimize
the risk of (or worsening of) an acute disease process becoming chronic and the attendant
human and economic impacts of a worsening illness or disease. An ounce of prevention
is worth a pound of cure.
C. Specialty Care
13.
While there has been some improvement in this area, the Court finds that specialty
care at LSP continues to be constitutionally inadequate in the following ways: (a)
timeliness; (b) failure to schedule and track specialty appointments; (c) failure to comply
with testing and diagnostic requirements; (d) failure to execute appropriate follow-up care;
and (e) failure to coordinate care. The Eceptionist program utilized to schedule specialty
appointments may be robust, but its use has not resolved failures in timely scheduling
and tracking adherence to specialty provider orders and follow-up.
LSP provides specialty care in three ways: (a) on-site specialty clinics where
specialists come to LSP, (b) telemedicine visits with specialists, and (c) off-site visits to
specialists.130
Specialty care appointments (trips and follow-up) are scheduled and
tracked by DOC headquarters using the Eceptionist program.131
Since 2016, LSP has added the following on-site specialty clinics: cardiology,
urology, infectious disease, and dietary.132 Since 2016, LSP has expanded the number
130
DX 35-c, p. 31.
Rec. Doc. 754, Benedict Testimony at 104-105.
132
Rec. Doc. 750, Lavespere Testimony at 164:2-10.
131
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and scope of specialists available via telemedicine to include: neurology, infectious
disease, hepatitis, ENT (ear, nose and throat), hematology and oncology, dermatology,
endocrinology, and gastrointerology.133
By 2021, the number of specialty referrals and appointments had substantially
increased since 2015/2016.134 The amount of missed specialty appointments since 2016
has also decreased.135 Further, since the liability trial, LSP has installed monitors in the
Ash dorms to notify inmates of their appointments, replacing the previous method of
inmates reviewing paper print outs to determine if they had appointments.136
These changes provide a framework for constitutionally adequate health care, but
the evidence demonstrates that these changes have not resolved the constitutional
deficiencies in the delivery of specialty care. Dr. Lavespere testified that LSP’s policies
and practices regarding specialty care are essentially unchanged.137 Further, the policies
in place are not necessarily followed.
LSP Directive 13.001 provides: “All
recommendations by non-departmental health care practitioners concerning an
offender’s treatment shall be reviewed by the offender’s primary care provider. If the
decision is made not to carry out any or all recommendations, justification shall be
documented in the offender’s medical record.”138 However, Dr. Lavespere’s testimony
133
Id. at 164:19-24.
Rec. Doc. 754, Benedict Testimony at 64:9-20, 110:2-3, 154:2-4; PX 1-a, p. 83.
135
Rec. Doc. 750, Lavespere Testimony at 173:8-12.
136
PX1-a, p. 83.
137
JX 69-a, Lavespere Depo. at 111:17-113:1, 122:23-123:8; see also Rec. Doc. 717, p. 5 (stipulating that
“LSP’s polices or practices have not changed regarding recommending, authorizing, and scheduling
specialty health care services; getting people to appointments or making sure patients have all necessary
tests, paperwork, and fasting; or ensuring that specialists’ recommendations are implemented or the
decision not to implement them is documented.”); Rec. Doc. 750, Puisis Testimony at 28:10-16 (opining
that the stipulation is consistent with Dr. Puisis’ review of the depositions, interrogatory responses, and
chart reviews).
138
PX 21-t, p. 3 (emphasis added).
134
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reveals that LSP’s medical leadership is either unaware of or knowingly disregards this
policy requiring documentation of such decisions.139 Dr. Johnson admitted LSP does not
track this information,140 and Dr. Toce, LSP’s current medical director, denied that it would
improve care to track specialist recommendations to completion.141
A review of patient charts shows that specialty care remains constitutionally
deficient. And while Dr. Mathis ultimately concluded that the specialty care LSP provides
meets the standard of care, even he acknowledged instances where LSP medical
personnel ignored specialist’s warnings, changed prescriptions without explanation, and
failed to contact specialists when patients’ conditions deteriorated.142 The following
patients exemplify the persisting problems in LSP’s delivery of specialty care.
Patient #7
Patient #7, 65 years old, had three positive fecal occult blood tests in 2019 and a
history of constipation.143
Dr. Puisis concluded that this called for an immediate
colonoscopy, but the patient’s chart contains no indication that any provider considered
or noted the need for a colonoscopy or that colonoscopy was discussed with the
patient.144 He was not sent to the hospital until July 2021, when it was discovered he had
139
JX 70-a, Lavespere Depo. at 44:15-45:1, 48:4-10; PX 21-t, p. 3, LSP Directive 13.001 (requiring
documentation). See also JX 70-a, Lavespere Depo. at 43:24-44:1 (“There are certain things that we don’t
follow the recommendation of specialists on . . . .”); JX 69-a, Lavespere Depo. at 111:17-112:12, 122:21123:20, 212:11-15.
140
Rec. Doc. 757, Johnson Testimony at 198:2-10.
141
JX 71-b, P. Toce Depo. at 54:24-55:21.
142
Rec. Doc. 753, Mathis Testimony at 12:21-13:11 (discussing Patients #5 & 7), 103:14-18, 104:19-109:9
(discussing Patients #13 & 33).
143
Rec. Doc. 750, Puisis Testimony at 70:16-73:25; PX 1-a, pp. 97-98; JX 7, pp. 44, 103.
144
Rec. Doc. 750, Puisis Testimony at 71:12-24, 245:8-22; PX 1-a, pp. 97-98.
Page 30 of 104
metastatic colon cancer, resulting in a fatal pulmonary embolism.145 Dr. Puisis credibly
concluded that Patient #7’s death was preventable.146
By deposition, Dr. Toce testified that Patient #7 refused the colonoscopy.147
Defendants admit they failed to obtain a written refusal by this patient, which Dr. Mathis
agreed was below the standard of care.148 Defendants could not refute the fact that this
patient’s medical record was devoid of any references to the three bloody stool tests or
the need for a colonoscopy.149 The Court finds Dr. Toce’s testimony of this patient’s
undocumented colonoscopy refusal incredible in light of the medical records.
Patient #10
Patient #10 is a perfect example of LSP’s failure to timely recognize his need to be
referred to a neurologist. Patient #10 was sixty years old and suffering from hypertension
and high blood lipids, placing him at risk for a stroke.150 His medical records reveal that
he had eight episodes of elevated blood pressure, inability to speak clearly, altered gait,
and/or left-sided symptoms, and symptoms consistent with transient ischemic attacks,
which can indicate stroke and require higher-level diagnostic testing.151 His records also
show that he was sporadically treated for high blood pressure but that he also presented
on several occasions as possibly intoxicated or having used illicit drugs.152 On numerous
occasions, it appears that this patient’s high blood pressure was blamed on illicit drug use
and dismissed, without treatment.
While Defendants contend Patient #10’s blood
145
Id. at 73:4-25; PX 1-a, p. 98; JX 7, p. 44.
PX 1-a, p. 98.
147
JX71-a, p. 142:8-14.
148
DX 35-c, p. 189.
149
JX 71-a at 142:8-14.
150
Rec. Doc. 750, Puisis Testimony at 76:13-81:1; PX 1-a, pp. 61-63; JX 10, pp. 113, 122, 125, 172.
151
Rec. Doc. 750, Puisis Testimony at 77:1-15, 245:23-248:20; PX 1-a, pp. 62-63.
152
JX 10, pp. 187, 180, 176, 172, 163, 164, 154, 153, 149, 147, 144, 141, 137, 136, 129, 125, 114, 113,
120, 105, 106.
146
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pressure “was generally controlled except when he presented with altered mental
status,”153 the records show multiple occasions of high blood pressure without any
notation of an altered mental state.154
On another occasion, Patient #10 advised a physical therapist that he believed he
had a stroke, but he was not evaluated by LSP providers or referred to a neurologist, and
there is no documentation that any provider addressed this at all.155 Patient #10 ultimately
suffered a fatal stroke.156 It is indeterminate whether the fatal stroke was due to lack of
care or drug use, but the vagueness of this patient’s cause of death does not change the
fact that Defendants were indifferent to Patient #10’s diagnosis and treatment.
Patient #4
Patient #4 was 63 years old and suffering from seizure disorder, renal cancer,
pulmonary hypertension and interstitial lung disease, all conditions warranting
pulmonology follow-up.157 Defendants point to UMCNO records which note that, as of
May 2019, this patient was “lost to follow-up” due to the COVID-19 pandemic.158 He did
not see a pulmonologist until December 2020.159 While delays caused by the pandemic
were unavoidable and not caused by LSP, about half of the delay of this patient’s care
occurred before the pandemic began. Further, before and after the pandemic delay, this
patient presented on several occasions with oxygen levels which required hospitalization;
153
Rec. Doc. 770, p. 34.
Id. at pp. 34-35 (noting blood pressures above 140/90 with no evidence of drug use on 7/23/20, 9/4/20,
10/2/20, 12/9/20); see also JX 10, pp. 153, 144, 141, 129, 125 (same); see generally Rec. Doc. 750, Puisis
Testimony, at 245:23-248:20 (responding to Defendants’ analysis). As stated previously, an inmatepatient’s illicit substance use is not a justification not to provide medical treatment that meets the standard
of care; Defendants have not submitted any authority to the contrary.
155
Rec. Doc. 750, Puisis Testimony at 79:14-81:1; JX 10, pp. 112, 113.
156
PX 1-a, p. 63.
157
Rec. Doc. 750, Puisis Testimony at 89:16-106:11; PX 1-a, pp. 89-92; JX 4.
158
JX 04, p. 190.
159
Rec. Doc. 750, Puisis Testimony at 89:14-90:21; PX 1-a, p. 90.
154
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however, a pulmonologist was not consulted and the patient was not hospitalized.160
When this patient finally did see a pulmonologist, LSP failed to provide the patient with
tests the pulmonologist ordered, delayed filling prescriptions for weeks, and failed to
“integrate the specialty care into the primary care of the patient.”161
The initial failure to timely refer this patient to a specialist was exacerbated by
LSP’s failure to follow the specialist’s orders, which failures persisted from early 2021 until
his death from respiratory failure in October 2021.162 Patient #4 suffered an egregious
lack of care that cannot be justified by a “pandemic defense.” It is evidence of deliberate
indifference wholly unexplained or justified by the pandemic.
Patient #48
Patient #48, 51 years old, suffers from supraventricular tachycardia (“SVT”), other
cardiac issues, and significant gastrointestinal problems.163
Defendants submitted
evidence of sporadic treatment this patient received for his cardiac problems;164 however,
Dr. Puisis credibly opined about this patient’s significant symptoms that were largely
ignored.165
For example, this patient was noted as having seizure disorder, schizophrenia, and
major depression, but his records show that he was on no medication, and no explanation
was provided as to why he was not being treated for these conditions. There was also no
provider evaluation.166 At one point, this patient was referred to a physician for an
160
Rec. Doc. 750, Puisis Testimony at 95:1-24; 99:1-106:11; PX 1-a, pp. 90-92; JX 4, pp. 165, 194, 240,
272-73, 279, 292, 295, 342.
161
Rec. Doc. 750, Puisis Testimony at 97:9-98:25; PX 1-a, pp. 90-92; JX 4, pp. 25, 172, 194.
162
Rec. Doc. 750, Puisis Testimony at 102:15-106:11; PX 1-a, pp. 90-92; JX 4, pp. 165, 272-73, 279, 292.
163
PX 1-a, pp. 63-65.
164
JX 48, pp. 116, 111, 110; DX 35-c, pp. 194–195; JX 48, p. 94; DX 35-c, p. 195; JX 48, p. 49.
165
PX 1-a, pp. 63-65.
166
Id. at 63.
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elevated blood pressure, but this appointment never occurred, without explanation.167 On
August 18, 2021, an EMT sent this patient to the ATU for evaluation; no ATU evaluation
ever occurred.168 On September 15, 2021, this patient was seen in the ATU by an EMT
after he had been vomiting for three days and had not had a bowel movement in a month.
These symptoms should have prompted an immediate examination by a provider. After
evaluation in the ATU, the patient was sent to the hospital emergency department.169
After his hospital visit, this patient was prescribed beta blockers; however, there is
no record that he was consistently given this medication. Further, this patient was
referred for a cardiology work-up, but there was no cardiology referral in Eceptionist.170
This is one of many instances that Defendants were deliberately indifferent to the need
for specialty care follow-up.
Dr. Puisus ultimately credibly opined that:
[Patient #48] had persistent tachycardia diagnosed at the hospital as
supraventricular tachycardia (SVT) needing cardiology evaluation. The SVT
was never specifically acknowledged as a problem at the facility and there
was no evidence of referral to a cardiologist. The patient also had severe
constipation causing a rare disease of the colon, likely due to inattention to
the patient’s chronic constipation. Referral for colonoscopy was made but
was significantly delayed. The results of the colonoscopy are unknown.
The episodic nature of this patient’s care resulted in the patient failing to
have his serious ongoing conditions (SVT, constipation, and colitis) properly
or timely evaluated causing potential risk of harm to the patient and delayed
diagnosis and treatment. This patient had abnormal vital signs (blood
pressure or tachycardia) on seven occasions over a year which were not
acknowledged by a medic or a provider and not addressed.171
167
Id.
Id.
169
Id. at 64.
170
Id.
171
Id. at 65.
168
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Patient #1172
Patient #1 was 55 years old with a history of smoking, hypertension, peripheral
vascular disease, and high blood lipids.173 He developed metastatic lung cancer,
discovered on October 28, 2020, and “underwent intensive follow up for radiation therapy,
chemotherapy, diagnostic testing, and oncology follow ups.”174 Between February 2020
and October 2020, this patient had an unintentional weight loss of 81 pounds that went
undocumented and unaddressed by LSP medical personnel.175 Due to this patient’s age,
smoking history, severe unexplained weight loss, and other symptoms like spitting up
blood, he should have been more closely monitored and his cancer discovered earlier.176
Eceptionist proved worthless in tracking this patient’s oncology appointments. For
example, it did not list all of the patient’s consultation or offsite appointments; it failed to
include almost all radiation and chemotherapy appointments; and it included oncology
appointments but failed to document whether they occurred.
Verification that all
appointments were scheduled and actually occurred could not be gleaned from
Eceptionist.177
Further problematic, “providers at LSP [were] disengaged from monitoring th[is]
patient’s progress based on recommendations and findings of consultants and reports of
diagnostic testing.”178 For example, Patient #1’s “complex arrangement for radiation
therapy and chemotherapy” was not monitored by a LSP doctor or mid-level provider.
172
The Court offers a summary of the problems in providing this patient with appropriate specialty care for
his metastatic lung cancer. A full recitation of the problems Dr. Puisis identified for this patient’s treatment
is found at PX 1-a, pp. 84-89.
173
Id. at 84.
174
Id.
175
Id.
176
Id.
177
Id. at 84-85.
178
Id. at 85.
Page 35 of 104
Trip nurses managed all follow-up and clinical scheduling. After this patient’s hospital
discharge with a cancer diagnosis on November 6, 2020, he was not scheduled for a
provider appointment until January 8, 2021, and he developed complications during this
delay.179
This patient’s white blood cell count was life-threateningly low, and he was
prescribed a medication to raise his white blood cell count. However, the medication
records fail to document if or when the patient received the medication. Furthermore,
there is no evidence that the patient was seen or followed by a health care provider while
being treated for the seriously low white blood cell condition.”180 There is no record that
providers were monitoring the patient’s complications or that he was receiving this
necessary white count medication.181
Further, Patient #1’s medical records are devoid of evaluations for headaches and
infection, and the oncologist’s recommendation for a CT of the head, chest, abdomen,
and pelvis was not performed in accordance with the specialist’s orders.182
The provider did not document that the patient had a recent oncology visit
and update the therapeutic plan. The assessment was tension headache
despite the known brain metastases. The provider did not check when the
CT scan would be done. The provider did not evaluate the facial edema
more thoroughly for SVC syndrome. The provider did not document
awareness of the oncology plan which called for an earlier evaluation if
problems occurred. The CT scan should have been promptly performed. A
3-month follow up was ordered and ibuprofen prescribed for the tension
headache.183
179
Id.
Id.
181
Id.
182
Id. at 86.
183
Id.
180
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On June 21, 2021, this patient arrived for chemotherapy without recent lab testing
that had been ordered but not performed; thus, this chemotherapy appointment had to be
cancelled and rescheduled.184
Countless problems like this continued to occur
throughout this patient’s cancer treatment.185
Pandemic/Natural Disasters/UMCNO Providers
LSP refers its sickest inmates to UMCNO. Defendants justify a record replete with
treatment and referral delays, citing the COVID-19 pandemic and natural disasters which
befell the State.186 While the delays attributed to these events are understandable and
not the fault of LSP, the record establishes that the problems identified with specialty care
were evident from 2019 through March 2020, and they persisted after the pandemic and
natural disaster issues subsided.187 This is confirmed by the credible testimony of the
UMCNO providers.
The improved communication LSP boasts between its medical staff and specialty
providers was undermined by the testimony of the UMC doctors who testified in this case.
Dr. Helen Pope, Dr. Daniel Brady, and Dr. Marcia Glass credibly testified about their
experiences treating LSP patients at UMC. They each testified that patients from LSP
often arrived with late-stage, undiagnosed diseases despite extended periods of
symptoms;188 they explained the difficulties obtaining follow-up appointments for patients
184
Id.
Id. at 86-89.
186
See Rec. Doc. 754, Morrison Testimony at 18-22, 26-28; DX 35-a, pp. 33–45.
187
Rec. Doc. 750, Puisis Testimony at 25:23-26:15; Rec. Doc. 748, LaMarre Testimony at 93:4-7.
188
See Rec. Doc. 751, Pope Testimony at 8:8-18, 11:16-22 (“[T]he biggest [issue] is a patient presenting
later in the course of an illness than I would expect someone from the community.”); id. at 12:3-17:5
(providing additional details); Rec. Doc. 755, Brady Testimony at 134:19-137:10 (describing patients who
received delayed diagnoses); Rec. Doc. 755, Glass Testimony at 162:12-164:21 (comparing patients from
LSP population with others in the community).
185
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from LSP or ensuring that follow-up care occurs;189 and they expressed lack of access to
LSP patients’ full medical records.190 The testimony of the UMC providers is unrebutted,
and the Court finds the UMC physicians’ testimony particularly persuasive and credible
because they are neutral intermediaries.
D. Emergency Care
14.
The Court previously held that LSP failed to provide constitutionally adequate
emergency care in the evaluation and assessment of emergencies by qualified providers
and failed to timely treat and/or transport patients to the hospital for emergency care.
Although LSP has improved staffing in the ATU, the constitutional deficiencies identified
by the Court persist.
Regarding SDEs, until early 2022, EMTs responded to all SDEs and made
assessments, at times without input from a provider, which both Deputy Warden LPN
Ashli Oliveaux (“Oliveaux”) and Defendants’ expert Dr. Mathis identified as practicing
medicine without a license.191 LSP contends it has remedied the SDE process and utilizes
a new policy for responding to SDEs developed by Oliveaux.192 Under this policy, EMTs
respond to SDEs solely pursuant to Individual Treatment Orders (“ITO”) that are pre-
189
See Rec. Doc. 751, Pope Testimony at 11:6-15 (“After the patient leaves the hospital, I have no
assurance that appointments will be taking place.”); Rec. Doc. 755, Glass Testimony at 165:21-166:7 (“We
put [orders for follow up care] in our discharge orders, but we have no way of telling whether that’s going
to happen or not . . . [I] see patients who were referred for follow-up appointments by other doctors that did
not get those appointments.”), 166:8-19 (describing the impact on patient prognosis); Rec. Doc. 755, Brady
Testimony at 137:22-140:6 (“Q: Is lack of follow-up is a common problem with patients from Angola? A: I
think so, yes.”).
190
See Rec. Doc. 755, Glass Testimony at 171:11-16 (“[T]hey should have an electronic medical record
that doctors like me … should be able to access easily so we have some way of knowing what’s been going
on with these patients.”); Rec. Doc. 751, Pope Testimony at 10:24-11:5, 21:4-22:2 (describing how patients
are not able to give full medical histories); Rec. Doc. 755, Brady Testimony at 140:7-141:8.
191
Rec. Doc. 757, Oliveaux Testimony at 63:11-16; Rec. Doc. 752, Mathis Testimony at 194:11-17.
192
Rec. Doc. 757, Oliveaux Testimony at 64-65.
Page 38 of 104
approved by medical providers.193 If a SDE is not covered by an ITO, the EMT must call
a NP or take the patient to the ATU for further assessment.194
Plaintiffs point out that LSP’s EMT Director, Darren Cashio (“Cashio”) testified that
this “new” policy is simply “trying to streamline” the SDE process and “doesn’t change,
really, the process,” except EMTs may now contact a provider via FaceTime rather than
by phone.195
Dr. Vassallo was critical of this purportedly new policy, concluding that it made
“really no difference” to the quality of emergency care.196 As to ITOs, Dr. Vassallo pointed
out that they are not specific to an individual patient,197 and they still require EMTs to
make diagnoses, which is outside their scope of practice.198 Dr. Mathis agreed that “some
of the ITOs need to be reworked.”199
Defendants are correct that the ATU is not an emergency room (“ER”); however,
the ATU must be sufficiently staffed with providers capable of properly assessing
emergent situations for which transport to an ER may be warranted, and emergency
transport should not be delayed.
LSP has improved staffing in the ATU by having a RN and an EMT present twentyfour hours a day, seven days a week.200 A NP is now present in the ATU from 7:30 am
until 4:00 pm Monday through Friday and 24 hours a day from Friday night through
193
Id.
DX 50.
195
PX 79, Cashio Depo at 8:13-9:9, 10:4-11:2, 12:7-14:21.
196
Rec. Doc. 749, Vassallo at 86:9-11, 87:1-6, 88:14-89:21.
197
Id. at 84:23-85:4, 87:1-19.
198
Id. at 87:20-88:21.
199
Rec. Doc. 753, Mathis Testimony at 64:12-15.
200
Rec. Doc. 752, Park Testimony at 11-12; Rec. Doc. 757, Johnson Testimony at 139-141.
194
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Monday morning.201 A NP is on call and stationed on the prison grounds to address any
ATU patients in the evenings Monday through Thursday.202
The Parties’ experts performed chart reviews of the same 60 patients in evaluating
emergency care at LSP.203 Defendants urge the Court to credit the opinions of their
medical experts, Dr. Mathis and McMunn, over Plaintiffs’ expert, Dr. Susi Vassallo, in
considering whether the deficiencies in emergency care have been remedied.204
Defendants claim that, because Dr. Vassallo has never worked in a correctional setting,
she applied the inapplicable “community standard of care,” consistent with her own Level
I Trauma practice, rather than the lesser standard of care applicable to correctional
settings; thus, her opinions are flawed.205 The Court disagrees.
First, this Court has already found Dr. Vassallo’s opinion highly credible in the
liability portion of this case.206 Second, the Fifth Circuit and a number of courts within the
Fifth Circuit have accepted Dr. Vassallo’s expertise in medical care in prison systems.207
Finally, there is no evidence in the current record that Dr. Vassallo applied “community
standards of care” when performing chart reviews for the remedy phase trial.208 The Court
201
Rec. Doc. 752, Park Testimony at 12-23; Rec. Doc. 757, Johnson Testimony at 139-140. Park explained
that she could also be in the nursing unit or doing paperwork, both of which are seconds away from the
ATU. Rec. Dc. 752, Park Testimony at 12.
202
Rec. Doc. 752, Park Testimony at 13; Rec. Doc. 757, Johnson Testimony at 139-140.
203
Rec. Doc. 770, pp. 29, 38, 42.
204
Id.
205
Id.
206
Rec. Doc. 594, p. 7.
207
See Yates v. Collier, 868 F.3d 354, 363-64 (5th Cir. 2017)(“Dr. Vassallo has previously served as an
expert witness in lawsuits challenging prison conditions, and this court has (at least) twice upheld district
court findings that relied heavily on Dr. Vassallo's testimony. See Ball, 792 F.3d at 593–94; Gates, 376 F.3d
at 339–40)); see also Cole v. Collier, 2017 WL 3049540, *9 (S.D. Tex. 2017); Cole v. Livingston, 2016 WL
3258345, *3 (S.D. Tex. 2016); McCollum v. Livingston, 2017 WL 608665, *22 (S.D. Tex. 2017).
208
Defendants’ reliance on Gumns v. Edwards, No. 20-231, 2020 WL 2510248 at * 11 (M.D. La. May 15,
2020) is inapplicable here. In Gumns, a case challenging LSP’s emergency response to the COVID-19
pandemic, the Court noted that Dr. Vassallo’s testimony that certain care was “medically unreasonable,”
was not evidence of deliberate indifference. Defendants point to no similar testimony in the present case.
Page 40 of 104
finds that Dr. Vassallo credibly concluded that the emergency care provided by LSP
remains constitutionally deficient as a review of the patient charts discussed below
demonstrates.
Patient #38
Patient #38 was 58 years old and suffered from diabetes, hypertension, COPD,
and had an artificial heart valve.209 In preparation for cataract removal,210 he was admitted
to the nursing unit to transition from his regular anticoagulant to a shorter-acting
anticoagulant drug to address the increased risk of blood clots due to his artificial heart
valve.211 Uncoagulated patients with an artificial heart valve are at significant risk for
serious infection.212
While in the nursing unit, this patient developed wheezing, a fever, and an elevated
respiratory rate, suggesting a potentially life-threatening infection.213 LSP medical staff
responded by placing this patient in a locked isolation room and prescribed him Tylenol
and an anti-viral drug.214 This patient’s symptoms quickly worsened over the next three
days when he developed bloody sputum, which is cause for concern in an anticoagulated
patient, and his oxygen saturation rates declined to abnormal levels.215
On his third day in the nursing unit, this patient’s lab results indicated signs of
sepsis, kidney failure, and bacterial infection.216 Recounting the evidence in the medical
209
PX 1-a, pp. 115-16; JX 38.
JX 38, p. 54. Dr. Vassallo erroneously stated that this patient was preparing for a dental procedure rather
than cataract surgery. Rec. Doc. 749, Vassallo Testimony at 152. This error has no impact on the deliberate
indifference displayed by LSP to this patient’s need for emergency care.
211
Rec. Doc. 749, Vassallo Testimony at 23.
212
Id.
213
Id. at 23-24; JX 38, p. 94.
214
Id. at 24-25; PX 1-a, p. 115.
215
Id. at 25:8-26:16; PX 1-a, p. 115; JX 38, pp. 71, 86, 90.
216
Id. at 26:21-28:13; PX 1-a, p. 115; JX 38, pp. 22-23.
210
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records, Dr. Vassallo testified that, at 6:20 am, “the patient’s blood pressure was 65/40
mm Hg and the oxygen saturation was 79%. This was reported to Dr. Toce, but there is
no record of Dr. Toce conducting any assessment or providing any care. The patient’s
blood pressure and oxygen saturation were both extremely low, indicating that the patient
was in shock and should have been sent to a hospital. Instead, he received no care.”217
At 7:20 am, the patient was found on the floor of his isolation room; CPR was
started, and he was transferred to the ATU where resuscitation efforts continued. An
ambulance was called at 8 am. As the patient continued to struggle in the ambulance,
the destination was diverted from Our Lady of the Lake Hospital (“OLOL”) in Baton Rouge,
Louisiana to the West Feliciana Hospital just minutes from Angola.218 Patient #38 was
later pronounced dead at the hospital after he suffered a fatal cardiorespiratory arrest
secondary to pneumonia.219
Shockingly, Dr. Mathis concluded that the care provided to this patient met the
constitutional standard of care.220 Dr. Mathis testified that the patient’s bloody sputum
was “not a danger signal” in a patient with COPD,221 and he found the patient’s labs to be
“nonsignificant.”222 Further, based on the patient’s white blood cell count, Dr. Mathis
found it reasonable for the LSP provider to treat the patient for the flu rather than
pneumonia.223 Defendants maintain this patient’s chart shows a simple difference in
medical opinions rather than deliberate indifference. The Court finds Dr. Mathis’ opinions
uncredible.
217
PX 1-a, p. 115.
Id.
219
Rec. Doc. 749, Vassallo Testimony at 30:16-31:19; JX 38, p. 82.
220
Rec. Doc. 752, Mathis Testimony at 227:6-8.
221
Id. at 225:5-8.
222
Id. at 225:15-16.
223
Id. at 225:23-226:2, 226:16-22.
218
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The failure to order an x-ray or the failure to prescribe antibiotics could possibly be
argued to reflect what Dr. Mathis calls a difference of medical opinion as to the appropriate
diagnostics, care, or treatment. But the failure to have a health care provider examine this
patient to substantiate a proper course of action is not mere neglect, it is callous
disregard.224 Dr. Vassallo credibly concluded that “[t]his was an egregious example of
delayed care, and this lack of care caused this patient’s death.”225
The Court is dumbfounded to understand how treating these symptoms as flu can
be justified without so much as a physical examination. No health care provider saw this
seriously ill patient in the days preceding his death. The failure to see and examine this
patient constitutes deliberate indifference at best and more aptly, callous disregard.
Patient #35
Patient #35 was 56 years old and presented to the ATU with a temperature of
103.2 degrees and confusion.226 Dr. Vassallo opined that this was an emergent situation
indicating a brain infection or severe urinary tract infection.227 Instead of treating this
situation like an emergency, ATU staff transferred this patient to the nursing unit for
observation.228 Although this patient presented to the ATU on a Saturday when a NP was
available, nothing was done for this patient until the following Monday.229
Dr. Mathis agreed that this patient should have been transferred to the infirmary,
and LSP’s treatment for this patient was below the standard of care.230 When the patient
224
PX 1-a, p. 116.
Id.
226
Id. at 118; JX 35, p. 121.
227
Rec. Doc. 749, Vassallo Testimony at 35:6-16.
228
Id. at 33:24-25; JX 35, p. 121.
229
Id. at 33:14-34:13.
230
Rec. Doc. 753, Mathis Testimony at 13:12-15.
225
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finally got to a hospital, he was diagnosed with meningitis.231 Without citation to any
evidence, LSP claims the medical provider that handled this situation with Patient #35 is
no longer with LSP. Contrary to its own expert, LSP further claims this incident does not
constitute deliberate indifference. The Court disagrees.
Patient #35 was a “high-risk patient with an aortic valve replacement, a high fever,
and an altered mental state.”232 The delay in treating this patient with emergent care
demonstrates deliberate indifference.
Patient #36
Patient #36 was 65 years old with a history of chronic obstructive pulmonary
disease (“COPD”), which had previously required hospitalization.233 He presented to the
ATU gasping, with a significantly elevated respiratory rate and blood pressure, and
complaining of shortness of breath for two days.234 ATU staff appropriately treated him
with a nebulizer and monitoring; however, his conditioned worsened over the next two
hours.235 The patient did not see a provider in the ATU for over two hours; by the time he
was seen, he was unstable and in respiratory distress with poor oxygen levels.236 He was
prescribed a Beta blocker, which increased his respiratory distress.237 Instead of sending
this patient to the hospital, he was sent to the nursing unit where he died from a heart
attack within 30 minutes.238
231
Rec. Doc. 749, Vassallo Testimony at 35:1-25; JX 35 at 111.
PX 1-a, p. 118.
233
Rec. Doc. 749, Vassallo Testimony at 36:1-41:21; PX 1-a, p. 116; JX 36, pp. 106-07.
234
Id. at 36:1-21; PX 1-a, p. 116; JX 36, p. 106.
235
Id. at 36:22-41:21; PX 1-a, p. 116; JX 36, p. 106.
236
Id.
237
Rec. Doc. 749, Vassallo Testimony at 39:19-40:13; JX 36, p. 106.
238
Id. at 40:13-41:21; PX 1-a, p. 116; JX 36, pp. 106-07.
232
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Again, Defendants chalk this incident up to a difference in medical opinions.239 Dr.
Mathis testified that it was advantageous to send this patient to the nursing unit because
it is “a place to hold somebody where you don't think they really need to be admitted but
they need to be at a higher level of care as possible rather than in their housing unit.”240
Given the speed with which this patient expired, Dr. Vassullo’s opinion that this patient
should have received emergency care after the nebulizer treatment failed is more credible
than that of Dr. Mathis.
The Court finds that Patient #38’s treatment was below the constitutional standard
of care. The patient was treated in the ATU. The patient worsened despite the treatment.
He was not monitored in the ATU as his condition deteriorated and then, in this
deteriorating state, with a history of ineffective treatment, he was stepped down to the
nursing unit where he died within (30) minutes. The care of this patient constitutes
deliberate indifference to his history of failed treatment and a worsening condition.
Patient #29
Patient #29 was 28 years old and housed in a segregation unit.241 The records for
this patient showed that he made repeated sick calls but was never given a physical exam
or assessed by a provider.242 On March 27, 2020, he made a SDE request complaining
of stomach and back pain.243 The patient was evaluated by an EMT at 6:40 am and
charged $6.00 with no indication of any treatment.244 That afternoon, approximately eight
hours later, the patient was found collapsed on the floor, foaming at the mouth, with a
239
Rec. Doc. 770, p. 42.
Rec. Doc. 752, Puisis Testimony at 235:9-13.
241
Rec. Doc. 749, Vassallo Testimony at 41:23-47:18; PX 1-a, p. 120; JX 29, p. 39.
242
PX 1-a, p. 120.
243
Id.
244
Id.
240
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temperature of 108.2 degrees.245
Dr. Vassallo testified this was “obviously a heat
stroke.”246 No attempt was made to cool the patient with ice. Instead, he was catheterized
in an apparent attempt at urine toxicology in the ATU. He died in the ATU at 2:34pm.247
Defendants do not address the eight hours between the patient’s self-declared
emergency and his demise. They do not explain why this patient was given no physical
exam and did not see a provider. Rather, Defendants ostensibly suggest illicit drug use,
arguing that the patient’s SDE form contains a note, pictured below, that there was a
“burning aroma in his cell.”248 Dr. Vassallo interprets this note as saying “bouncing around
in cell.”249
Neither the observing security officer nor the nurse who made the note testified to this
matter. In any event, treatment of this patient should not have been dismissed based on
an assumption of drug use.
Relying on Dr. Mathis’ opinion, Defendants maintain that, by the time EMTs arrived
in the patient’s cell, he “was essentially a dead man at that time.”250 Thus, there was no
reason to administer ice to this patient because “there was nothing that could be done.”251
The Court disagrees. The failure to administer ice in an attempt to save a 28-year-old’s
life is the least of the failures. The fact that the persistent complaints of a 28-year-old
went unanswered constitutes deliberate indifference. Moreover, the cavalier response
245
Id.
Rec. Doc. 749, Vassallo Testimony at 43:10.
247
PX 1-a, p. 120.
248
JX 29, p. 37.
249
Rec. Doc. 749, Vassallo Testimony at 43:8.
250
Rec. Doc. 770, p. 44; Rec. Doc. 752, Mathis Testimony at 227-228.
251
Rec. Doc. 770, p. 49.
246
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that this patient “was a dead man” is evidence of apathy and further evidence of an
attitude of general indifference. Sadly, Patient #29 is yet another example of LSP medical
staff dismissing a SDE.
Patient #25
Patient #25 was 52 years old suffering with aortic stenosis who, after a fainting
episode, went into cardiac arrest, causing him to fall and hit his head.252 Security staff
failed to use the automatic external defibrillator (“AED”), which the EMT noted on the
ambulance run report.253 When the EMTs arrived, they applied the AED and began CPR;
however, six to ten minutes had passed without defibrillation, and this patient died.254
Although Dr. Mathis declined to agree that a minimum four minute response was required
to meet the standard of care,255 he was presented with both LSP policy and American
Correctional Association (“ACA”) standards, mandating a four-minute response to such
an event.256 The ACA standards state: “(MANDATORY) All health care staff in the facility
are trained in the implementation of the facility’s emergency plans. Health care staff are
included in facility’s emergency drills, as applicable.”257 Likewise, LSP Directive 13.007
requires that “All employees of Louisiana State Penitentiary shall be trained to respond
to health-related situations within a four-minute response time.”258
Dr. Vassallo credibly concluded that this patient’s death was preventable had AED
been applied within four minutes, as required by LSP and the ACA. Defendants offered
252
Rec. Doc. 749, Vassallo Testimony at 47:20-50:20; PX 1-a, pp. 120-21; JX 25, pp. 31-34.
Rec. Doc. 749, Vassallo Testimony at 50:21-52:8 (“It’s very unusual to write when something was not
done that should have been done, so somebody was a little mad about it.”); PX 1-a, p. 120; JX 25, p. 31.
254
Rec. Doc. 749, Vassallo Testimony at 50:21-51:20, 113:9-16.
255
Rec. Doc. 753, Mathis Testimony at 60:1-61:17.
256
See DX 11, p. 29; PX 21-y, p. 2. LSP contends the ACA standards are the relevant national standards
as opposed to the more rigorous NCCHC standards advocated by Plaintiffs.
257
Id.
258
PX 21-y, p. 2.
253
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no response to the failure to administer the AED within four minutes. The emergency
response to Patient #25 was below the standard of care and evidence of deliberate
indifference. LSP’s cavalier dismissal of a four-minute response time mandated by its
own policy underscores a pervasive ethic of indifference and callous disregard.
Patient #55
Patient #55 is 54 years old and suffers from a history of strokes who, on February
3, 2021, presented to the ATU with hypertension. The assessment was noncompliance
with medications.259 On February 4, 2021, an ambulance was called to this patient’s
housing unit because he “just started drooling and slumped to the side.”260 Dr. Vassallo
testified that these symptoms are indicative of stroke.261 Although he should have been
taken to a hospital, he was not even examined by a provider; rather, he was kept in the
ATU for four hours with only telephone orders from Dr. Lavespere. He was discharged
to his room although his status was unchanged.262 The patient was sent to West Feliciana
Hospital the next morning for a CT scan, some 17 hours after symptom onset, by which
time he was unable to walk and was having focal seizures.263 Dr. Vassallo explained that
sending this patient to West Feliciana Hospital for a CT scan was below the standard of
care because this test cannot exclude an ischemic stroke.264 The hospital radiologist
advised LSP that this patient needed an MRI, but he was never referred for one, and
there is no record that any follow-up of this patient ever took place.265
259
PX 1-a, p. 113.
Id.; JX 55, p. 63.
261
Rec. Doc. 749, Vassallo Testimony at 58:24-25.
262
Id. at 59:1-60:11; PX 1-a, p. 113; JX 55, p. 64.
263
Id. at 60:16-61:21; PX 1-a, p. 113; JX 55, pp. 57, 61.
264
Id. at 62:2-21; PX 1-a, p. 113; JX 55, p. 60.
265
Id. at 63:15-64:15; 67:8-68:15; PX 1-a, p. 113; JX 55, pp. 56, 59.
260
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On March 17, 2021, this patient presented with an inability to walk and urinary
incontinence.266 Despite these symptoms, NP Bordelon erroneously noted that there were
no “signs and symptoms of a new stroke.”267 Rather than refer this patient for an MRI,
Bordelon issued a telephone order and sent him back to his quarters with instructions for
a follow-up appointment.268
On April 26, 2021, an ambulance was called for this patient after he presented with
slurred speech and a numb mouth.269 The patient was taken to the ATU and, based on
suspicion of a stroke, he was sent to OLOL about an hour later.270 At the hospital, it was
determined that this patient was a level one stroke alert, and his MRI showed an acute
stroke; the patient was ultimately left “with a devastating inability to speak properly” and
“dysphasia, difficulty swallowing.”271
McMunn determined that the response treatment for this patient’s symptoms met
the standard of care.272
However, there is no explanation by Defendants why the
radiologist’s recommendation for an MRI was not followed. Defendants claim that the CT
scan performed at West Feliciana Hospital indicated “no acute intracranial
abnormality,”273 but they ignore that LSP was told that a CT was diagnostically useless
for an ischemic stroke. McMunn admitted he was not qualified to opine on this issue:
Q
Let me go back to the CT scan. There was some criticism by Dr.
Vassallo -- JX_55.0060 -- that this should have been a different type
of CT scan. All right? Do you have any opinions on that?
266
PX 1-a, p. 113; JX 55, p. 54.
Rec. Doc. 749, Vassallo Testimony at 64:16-67:7; PX 1-a, p. 113; JX 55, p. 54.
268
Id. at 64:16-67:7; PX 1-a, p. 113; JX 55, p. 54.
269
JX 55, p. 450.
270
PX 1-a, p. 113.
271
Rec. Doc. 749, Vassallo Testimony at 68:19-70:5; PX 1-a, pp. 113-14; JX 55, p. 450.
272
Rec. Doc. 756, McMunn Testimony at 64; DX 35-b, p. 99.
273
JX 55, p. 60.
267
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A
I -- I'd say as a non-neurologist that I probably shouldn't have an
opinion one way or the other, other than he ordered what he felt like
was helpful.274
Dr. Vassallo’s opinion regarding Patient #55 was not credibly rebutted. Moreover,
it is not as simple as whether Patient #55 was timely transported to the hospital on April
26, 2021; rather, the question is whether LSP appropriately responded to multiple
presentations of stroke symptoms by this patient. Bordelon’s note of “no new signs or
symptoms of a stroke,” when this patient presented with an inability to walk and urinary
incontinence, was egregious. Dr. Vassallo credibly concluded that “the provider either
did not examine the patient or doesn’t know anything about how to recognize a stroke.
That’s absurd.”275 The emergency response to this patient was below the constitutional
standard of care and evidence of deliberate indifference.
Patient #6
Patient #6 was 50 years old at the time of his death on May 3, 2021.276 In the last
two weeks of his life, he made at least seven separate requests for medical attention for
escalating back pain, yet no provider ever examined his back.277 By his last request, he
was incontinent and unable to get out of bed, which Dr. Mathis acknowledged could be a
red-flag for cord compression, requiring evaluation by a doctor.278 On five occasions
during his last two weeks, providers ordered no transport to the ATU and declined to see
him.279 Plaintiffs’ experts credibly concluded that Patient #6 “should have been
274
Rec. Doc. 756, McMunn Testimony at 64:15-22.
Rec. Doc. 749, Vassallo Testimony at 151:13-15.
276
PX 1-a, pp. 60-61; Rec. Doc. 753, Mathis Testimony at 35:4-47:16; JX 6.
277
PX 1-a, pp. 60-61; Rec. Doc. 753, Mathis Testimony at 35:18-44:18; JX 6, pp. 35-37, 54-59, 61.
278
Rec. Doc. 753, Mathis Testimony at 34:6-12.
279
PX 1-a, pp. 60-61; Rec. Doc. 753, Mathis Testimony at 35:18-44:18; JX 6, pp. 35-37, 54-59, 61.
275
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transported to a hospital or had immediate higher-level imaging studies . . . Instead, the
patient was managed by medics and treated indifferently by providers.”280
On May 3, 2021, at 5:11 pm, medics evaluated the patient as he was unable to get
up and had urinated on himself.281 The patient did not have wheelchair access to a
shower, so he was lying on a mattress near the shower; when medics moved him, he
yelled out in pain.282 At this point, a doctor was called in to see the patient, and he
prescribed a pain injection and steroids.283
At 7:43 pm, the patient was found
unresponsive and moved to the ATU, where he was pronounced dead at 8:25 pm.284
The patient’s autopsy showed that his cause of death was a large liver abscess
with bloodstream spread of the infection to the spinal cord which resulted in cord
compression.285 Dr. Mathis concluded that LSP was not at fault for this patient’s death
because he had recently resumed self-cutting.286
Plaintiffs’ experts concluded that:
Care of this patient was incompetent and indifferent to his serious medical
needs. The patient had escalating symptoms all of which should have
included provider evaluation and imaging. Symptoms progressed to red-flag
symptoms by 4/27/21 or 4/30/21 and the patient should have been
transported to a hospital or had immediate higher-level imaging studies as
these studies were unavailable onsite … The infection could have been
recognized earlier with higher-level diagnostic testing and his death may
have been prevented with earlier treatment.287
Dr. Toce’s caustic response to this patient’s care highlights the underlying
indifference to all patients’ medical needs at LSP. He testified in a deposition that: “you
280
PX 1-a, p. 61.
Id.
282
Id.
283
Id.
284
Id.
285
Id.
286
Rec. Doc. 753, Mathis Testimony at 45:9-13.
287
PX 1-a, p. 61 (quoting JX 71-b, Paul Toce Dep. at 23).
281
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know, this is entirely consistent with manipulative behavior that we see so frequently.”288
Later, he added, “but with this ongoing picture and him unable to really get to the
bathroom, I’m concerned that it’s a bit more serious. Might need to take lab or x-rays or
something on him.”289
The care and treatment provided to Patient #6 was woefully deficient, and Dr.
Toce’s testimony demonstrates a callous disregard of medical symptoms. The
predisposition to attribute serious medical conditions to malingering or manipulation is
unacceptable, and the Court finds that the lack of emergency care provided to this patient
fell far below the constitutional standard of care.
E. Infirmary/Inpatient Care
15.
The Court previously held that infirmary and inpatient care at LSP was below the
constitutional standard of care because LSP failed to provide adequate, qualified staff in
infirmary/inpatient care.290 The evidence at the remedy trial established that an
appropriate number of qualified, adequate staff remains lacking in the infirmary, and
inmate orderlies are still utilized to provide care beyond the scope of the medically
accepted use of orderlies.
LSP claims to have increased the ratio of nurses to patients in the nursing units
with one registered nurse for every ten patients in acute care (NU1) and one registered
nurse for every 15 patients in long-term care (NU2);291 Dr. Lavespere testified in March
2022 that this ratio “depends on the census” and “there’s a very strong effort” to achieve
288
Id.
Id.
290
Rec. Doc. 594, p. 120.
291
Rec. Doc. 752, Park Testimony at 22:16-21; Rec. Doc. 757, Johnson Testimony at 147, 150-51.
289
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these ratios.”292 Dr. Toce testified of these staffing ratios, “Look, that’s a goal okay. That
change is how we would really like to run the units, and most of the time, we can put that
together. It does happen like that. It is still a bit of a struggle, because people call-in lastminute sick, and people get sick, and I think we still have an issue with understaffing.”293
While the Court commends efforts to improve staffing levels, the evidence discussed
below shows that constitutional inadequacies in infirmary care persist.
LSP presented evidence that it addressed the issue of patients being in locked
rooms by installing a red call light outside the door of these rooms with an activation
switch located at the patient’s bedside.294 Paralyzed patients are still inexplicably placed
in locked rooms, but now appear to be positioned within reach of the call light switch.295
Evidence shows that the nursing units are clean and not in disarray.296 NP Cynthia Park
(“Park”) testified that she rounds in NU1 on Friday and Saturday mornings, and she
rounds in NU2 every other Saturday morning.297
Despite the call lights installed outside of locked rooms, evidence shows that
patients continue to be outside of sight or sound of nurses due to the positioning of nurses
and black coverings over windows.298 In NU2, lockers placed in the open bay area block
the line of sight between patients and the nursing station, and patients in the open bay
292
JX 69-a, Lavespere Depo. at 141:12-25.
JX 71-a, Toce Depo at 86:5-12.
294
Rec. Doc. 752, Park Testimony at 21-25; Rec. Doc. 756, McMunn Testimony at 26; DX 46, pp. 173, 175;
DX 46, p. 130.
295
Rec. Doc. 752, Park Testimony at 24.
296
DX 35-c, pp. 34–44.
297
Rec. Doc. 752, Park Testimony at 10-11.
298
PX 1-a, p. 100: “The nursing station in Nursing Unit 1 has black coverings over the windows prohibiting
nursing staff from visualizing the patients without standing up. Although there are call light mounted above
the locked cells, patients in open bay area cannot be seen by the staff when they are sitting, nor do they
have a call light to summon the nurse.” Additionally, “[i]nmates reported that a few days before the team
toured the facility on April 6-8, 2022, the paper was removed, and it was placed back up after the tour of
the facility concluded.” Id. Plaintiffs’ experts detailed specific examples of this problem. Id. at 101.
293
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area have no way to summon a nurse. Patients in this area reported they must get the
attention of an orderly and ask for a nurse.299
During the three days Plaintiffs’ experts toured LSP, multiple team members
observed NU1 and NU2 on multiple occasions, and they reported that they never
observed a nurse rounding patients even though infirmary nurses document that rounds
are done every two hours, whether the patient is sleeping or awake.300 Multiple inmates
reported to Plaintiffs’ expert team that nurses remained seated in the nurses’ station and
relied on inmate orderlies to provide care.301
No “head-to-toe” physical assessment of a patient by nursing staff, as required by
LSP policies, was observed during this tour. Nurses were primarily observed sitting in the
nurses’ station or administering medications.302 Infirmary forms are inadequate as they
fail to provide a space for date and time, and vital sign flowsheets do not allow for
documentation of the time vitals were taken.303 “Pre-printed nursing care plans are not
specific to correctional health care space and include interventions more in line with
community nursing, e.g., contact the home health nurse.”304
Additionally, the LSP infirmary fails to provide adequate equipment and supplies
for effective patient care. Plaintiffs’ experts observed several instances where patients
were not timely provided crutches, walkers, or bedside commodes until after patient injury
had occurred.305 A particularly cruel and egregious example of this problem involves
299
Id.
PX 1-a, p. 104.
301
Id.
302
Id. at 106.
303
Id. at 107.
304
Id.
305
Id.
300
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Patient #50, a 35-year-old paraplegic who requires a catheter to empty his bladder.306 He
was forced to reuse single-use catheters for weeks at a time, leading to repeated urinary
tract infections.307 This patient reported to Goehring that he sought more catheters from
Nurse Parks, but she advised him they were not budgeted to use clean catheters each
time so he must re-use.308 Goehring credibly concluded that “[r]euse of single use
medical supplies is dangerous and does not meet minimal standards of care.”309
Inmate Orderlies
While LSP maintains its inmate orderly program is improved, evidence
demonstrates that “[o]rderlies are utilized the same today as they were at the close of
liability discovery.”310 Currently, LSP utilizes three to four inmate orderlies on every shift
in the infirmary.311 LSP claims these orderlies assist patients with activities of daily living
like handing out food trays, feeding patients who cannot feed themselves, cleaning
incontinent patients, turning patients to prevent skin breakdown, and bathing patients.312
NP Parks testified that inmate orderlies do not perform wound care, dispense
medications, or administer insulin.313
Nurse Jennifer Stickells (“Stickells”) is responsible for training inmate orderlies.314
She testified that inmate orderlies are supervised by both security staff and nurses; Park
testified that nurses monitor orderlies and guide and direct them as necessary.315
306
Rec. Doc. 755, Goehring Testimony at 42:19-52:9; PX 1-a, pp. 102, 104-06; JX 50.
Rec. Doc. 755, Goehring Testimony at 51:6-22; PX 1-c, p. 320; PX 1-a, p.106.
308
Rec. Doc. 755, Goehring Testimony at 52:4-9.
309
PX 1-a, p. 106.
310
PX 44-d at 04, Response to ROG No. 16.
311
Rec. Doc. 752, Park Testimony at 23:2.
312
Rec. Doc. 752, Park Testimony at 26-28, 110, 187; Rec. Doc. 756, McMunn Testimony at 29:12-14.
313
Rec. Doc. 752, Park Testimony at 29-30, 110.
314
Rec. Doc. 757, Stickells Testimony at 20.
315
Id. at 29:20-22; Rec. Doc. 752, Park Testimony at 29.
307
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Candidates for the inmate orderly job are screened for disciplinary issues and vetted for
eligibility.316 The training of inmate orderlies has increased since 2019, and Stickells
testified that this training takes place over five days, and the orderlies are given lectures
on ethics, neglect, abuse, transfer of patients, body mechanics, and communication with
patients.317 The final day of training involves hands-on training where Stickells brings
orderlies into the nursing unit and works with them throughout the day.318 Stickells makes
rounds to ensures that the orderlies are following the training.319
At first glance, this training procedure appears robust; however, Defendants’ own
witnesses testified that LSP’s training practices have not changed since the liability phase
and acknowledged that this training had not occurred for at least three years, until right
before trial.320 The following evidence reflects the inadequacy of orderly training.
Trial evidence demonstrates that inmate orderlies continue to perform tasks
outside the scope of their appropriate use. Defendants’ own inmate orderly witnesses
testified to this. Bruce Hines testified that, although he has worked as a health care orderly
for the past three years, he completed his first training class at LSP “three or four” days
before he was deposed on March 30, 2022, mere weeks before the discovery cutoff.321
He testified that the orderlies “are the ones that are going to be more hands-on than the
nurses[,]” and “it seems like I’m doing their job as well.”322 He also testified that nurses
often fail to follow up with patients he has flagged as having an issue, like a bloody
316
Rec. Doc. 752, Park Testimony at 29.
Id. at 23; DX, p. 47.
318
Id. at 23-24, 27.
319
Id. at 27.
320
JX 72-a, Falgout Depo. at 24:9-12; Rec. Doc. 757, Stickells Testimony at 41:22-42:24, 43:14-17.
321
JX 75-a, Hines Depo. at 6:10-11, 7:24-9:12, 34:25-35:4. Jennifer Stickells admitted that she had orderlies
working that did not have proof of their certification. Rec. Doc. 757, Stickells Testimony at 44:9-12.
322
JX 75-a, Hines Depo. at 10:9-11:2, 18:2-10.
317
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stool.323 Similarly, Donald Murray testified that the orderlies “fill the gaps in” for the nurses
and are very important because “by it being a shortage of nurses, they couldn’t do all that
work that needs to be done.”324
Further, Plaintiffs’ experts observed inmate orderlies in the infirmary provide direct
patient care, including routinely performing wound care, handling patient lab reports, and
taking x-rays.325 Orderlies were also observed emptying catheters, clearing catheter
supplies, and changing oxygen tanks.326 Patient #50 and Patient #67 reported that
inmate orderlies sometimes performed wound care: Patient #50 stated that he prefers the
orderlies do it because he believes they do it better than nurses.327 As the Court held
previously, inmate orderlies can assist with activities of daily living, but the evidence
shows far more being handled by orderlies than appropriate under either NCCHC or ACA
standards. In many instances, the orderlies are performing tasks that should only be
performed by medical staff.328
The most egregious example of both substandard infirmary care and inmate
orderlies providing direct medical care to patients is Patient #22. Patient # 22 was 60
years old and suffered with left-sided weakness due to a traumatic brain injury.329 After
being assaulted by a cellmate in May 2020, this patient suffered head and leg injuries that
affected his ability to walk and eat; his ankle was surgically repaired, and a hospital
323
Id. at 33:14-34:11.
JX 76-a, Murray Depo. at 5:18-21, 17:14-22, 23:23-25.
325
PX 1-a, pp. 11-12, 101-04; PX 1-d, p. 19; Rec. Doc. 751, Goehring Testimony at 75:7-76:7; Rec. Doc.
755, Goehring Testimony at 58:24-59:6, 62:13-63:21; Rec. Doc 748, LaMarre Testimony at 176:17-177:1;
see also Rec. Doc. 594, p. 90.
326
PX 1-a, p. 101.
327
Id. at 102.
328
See generally PX 1-a, pp. 100-104.
329
Rec. Doc. 755, Goehring Testimony at 26:16-42:18; PX 1-a, pp. 11, 103; PX 1-c, pp. 258-286; JX 22.
324
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speech pathologist recommended a mechanical soft diet and that he be fed upright, both
because he had no teeth and because he was unable to use utensils with his left hand.330
After his discharge from the hospital, Patient #22 was placed in NU1, where he
was not immediately assessed, and he was not placed on the recommended diet.331 Over
the next two and a half months, he suffered at least nine falls, yet, instead of moving him
to a room where he could be more closely monitored and/or safety measures like bed
rails could be utilized, this patient was placed in a locked room with nothing but a mattress
on the floor.332 A doctor ordered a bedside toilet so he did not have to ambulate to the
restroom; however, he was not provided a bucket to catch waste for three days.333
The failure to provide the patient with the mechanical soft diet and feeding
assistance led to this patient’s death; he was forced to feed himself regular food in a
locked room in the infirmary.334 On January 6, 2021, this patient choked on a piece of
sausage and died when the airway obstruction resulted in cardiopulmonary arrest.335 An
inmate orderly administered CPR until EMS arrived.336
McMunn flippantly explains away Patient #22’s death by choking and inexplicably
concludes that the care provided to this patient met the standard of care.337 Defendants
utterly ignore the fact that an inmate orderly administered CPR to this patient, not infirmary
staff, and no AED was applied.
330
Rec. Doc. 755, Goehring Testimony at 27:10-29:11; JX 22, p. 674.
Rec. Doc. 755, Goehring Testimony at 29:13-17.
332
Id. at 34:4-35:13; JX 22, p. 954.
333
Id. at 35:23-36:23.
334
Id. at 38:18-39:10, 41:13-42:14.
335
Id. at 41:13-42:14; JX 22, pp. 900-01.
336
Id.; JX 22, p. 547.
337
Rec. Doc. 756, McMunn Testimony at 66:4-13.
331
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Considering the evidence discussed above, the Court finds the barriers to sight
and sound between patients and nurses, coupled with admitted staffing shortages and
the resulting improper use of inmate orderlies, demonstrates unconstitutionally deficient
infirmary care.
F. Medical Leadership and Organization
16.
The Court previously found that the combination of inadequacies in the following
areas of medical leadership and organization at LSP contributed to an unconstitutional
system of healthcare: (a) lack of meaningful mortality review; (b) use of correctional
personnel to manage medical decisions; (c) lack of peer review; (d) lack of medical staff
involvement in budgeting; (e) lack of medical supervision by the medical director (Dr.
Lavespere and now Dr. Toce); and (f) failure to maintain proper credentialing records.338
Based on the evidence presented at the remedy trial, the Court finds that none of these
inadequacies have been remedied. This is unsurprising since, although the Court found
in its liability ruling that, “[t]he buck stopped with Dr. Lavespere, and his medical
supervision and quality review was woefully inadequate,” he was promoted by
Defendants and given even greater oversight and responsibility for all DOC medical.339
Medical Leadership and Supervision
In August 2020, LSP hired Dr. Jacob Johnson (“Dr. Johnson”) as long-term
healthcare administrator; the Court finds that Dr. Johnson has the training and experience
necessary for this position, and that this hiring is a positive development for LSP.340
338
For ease of discussion, the Court will address these issues in a slightly different order than as held in
the liability ruling.
339
Rec. Doc. 594, p. 40.
340
Rec. Doc. 750, Puisis Testimony at 145:4-10.
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Without citation to supporting evidence, Defendants contend that “[t]he hiring of Dr.
Johnson has significantly improved the medical leadership and organization.”341
LSP also recently appointed LPN Oliveaux to Deputy Warden, and as part of her
duties, she oversees medical operations at LSP.342 Oliveaux previously worked in the
clinic at LSP; Dr. Johnson currently reports directly to Oliveaux.343 She testified that she
ensures that Dr. Johnson “has what he needs for our medical department to run.”344
Oliveaux and Dr. Johnson meet regularly to discuss how to “make sure [they] provide
efficient healthcare for [LSP’s] offender population.”345 Again, Defendants claim that the
promotion of Oliveaux “has improved operations and provides a protective barrier
between security and medical staff.”346 Notably, as an LPN, Oliveaux has less medical
training than her predecessor Tracy Falgout, an RN.347
Dr. Lavespere, of whom the Court was very critical in its liability ruling, was
promoted to statewide Medical Director, and Dr. Toce, a physician at LSP during the
liability period, was promoted to LSP’s Medical Director.348 Neither Dr. Lavespere nor Dr.
Toce testified at the remedy trial, but both gave trial depositions. NP Park, who believes
the medical staff culture at LSP is “great,” testified that the work culture has not changed
since Dr. Toce took over, and no real changes have taken place.”349
Defendants offered evidence of purported improvement in medical leadership. Dr.
Johnson maintains a weekly backlog tracker, which allows him to identify any health care
341
Rec. Doc. 770, p. 56.
Rec. Doc. 757, Oliveaux Testimony at 55.
343
Id. at 55:14-19.
344
Id. at 55:22-24.
345
Id. at 55:24-56:5.
346
Rec. Doc. 770, p. 56.
347
Rec. Doc. 757, Oliveaux Testimony at 53:11-12; Rec. Doc. 757, Johnson Testimony 186:19-21.
348
PX 44-c, p. 8, Response to ROG No. 10; PX 1-a, p. 15.
349
Rec. Doc. 752, Park Testimony at 66:8-22.
342
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issues and develop a quick response.350 Dr. Johnson and Dr. Toce conduct morning
meetings on Monday through Friday with medical staff to discuss the status of patients in
NU1 and NU2, patients in the ATU, and patients in outside hospitals.351
However, the overwhelming evidence demonstrates that these improvements
have not remedied the constitutional deficiencies identified by the Court. The form has
not improved the function. Dr. Toce testified that he wishes he had more time to spend
with the LSP nursing staff, but his administrative duties are overwhelming.352 Dr. Puisis
credibly concuded that:
Dr. Toce is the only full-time physician at the facility with two physician
vacancies. There is no Assistant Medical Director position and no one to
assist him with supervisory responsibilities. In our opinion, due to physician
understaffing, Dr. Toce is not able to meet all his supervisory duties,
especially with respect to the quality of clinical care. Nurse practitioners are
providing almost all clinical care with no evidence of supervision or
collaboration with a physician.353
While the Court finds that Dr. Johnson is a good addition to LSP’s leadership team,
the evidence shows that his presence has had little impact on the delivery of medical care
at LSP. In fact, there is no evidence that either Oliveaux or Dr. Johnson have significantly
impacted the medical care provided by LSP.
Dr. Johnson acknowledged difficulties in changing the LSP culture to be more
patient centered.354 However, in his deposition, he “appeared unaware that he frequently
received nearly blank monthly management reports from several departments—which he
350
DX 48-a; Rec. Doc. 757, Johnson Testimony at 159:7-17.
Rec. Doc. 757, Oliveaux Testimony at 68:16-70:10.
352
JX 71-a, Toce Depo. at 46:1-12.
353
PX 1-a, p. 15 (quoting JX 71-a, Toce Depo. at 46:4-10: “I don’t think I’m involved enough with them. I
want to spend more time in the trenches with them, and the administrative duties just keep coming. I could
stay locked in my office all day long doing just administrative work and never even see them, but that would
not be – that would not work.”).
354
Rec. Doc. 757, Johnson Testimony at 180:14-181:5.
351
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admitted reflects a ‘lack of oversight and a lack of leadership’ in the departments he
supervises.”355 This was confirmed during Dr. Johnson’s trial testimony.356
Evidence also suggests the medical leadership at LSP has dismissed the Court’s
liability findings. Dr. Toce disagreed with several of the Court’s liability findings,357 and
Dr. Johnson had no memory of having read the Court’s liability ruling.358
Dr. Lavespere identified very few changes to LSP policy since the liability ruling:
Dr. Lavespere acknowledged that DOC and LSP largely had not updated
its policies in ways that impacted the overall delivery of care. Asked about
11 DOC policies and 19 LSP directives, the only changes that he identified
as potentially impacting patient care were changes to the sick call policy;
the peer review policy (which has not yet been implemented at LSP); the
infirmary care policy (where the change was only to the amount of time and
documentation required for some patients, and didn’t “change[] a whole lot
of health care”); and the replacement of standing orders with “individual
treatment orders” in the ATU. He also noted that changes to ATU staffing
were not reflected in the policy.359
Accordingly, the Court finds that the medical leadership and organization at LSP
has not been significantly remedied such that constitutional deficiencies no longer exist.
The lack of leadership, supervision, and organization, discussed further below, is the sin
qua non to the unconstitutional care.
355
PX 1-a, pp. 114-15 (quoting DX 37-k, Johnson Dep.).
Rec. Doc. 757, Johnson Testimony at 210:24-215:24, 216:23-225:19; see, e.g., 222:2-20 (blank reports
from the nursing units); 224:7-10 (respiratory care); 224:11-13 (laboratory); 224:14-16 (central supply);
224:17-20 (health information management); 224:21-24 (quality improvement and ADA); compare, e.g., PX
29-a, p. 617 with Liability Trial JX 2-a, p. 222; see generally PX 29-a; PX 29-b.
357
JX 71-a, Toce Depo. at 9-26.
358
DX 37-k, Johnson Depo at 7.
359
PX 1-a, p. 13 (quoting JX 69-a, Lavespere Depo. at 51:11-19).
356
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Mortality Review/Quality Improvement (“QI”)360
Without reference to supporting evidence, Defendants claim that LSP began
conducting mortality reviews in late 2021;361 the trial evidence undermines this claim and,
rather, reveals that LSP’s mortality review process is essentially unchanged from 2016.362
Dr. Lavespere testified that mortality reviews had improved from quarterly meetings to
monthly meetings and that more medical staff is “at the table” during mortality reviews,
but LSP still has no specific mortality review policy.363 Although LSP Policy HCP6 makes
cursory reference to “[a] review of all in-custody deaths,” the policy is devoid of review
criteria.364
Dr. Puisis credibly testified that mortality review must “be a critical review to identify
deficiencies, and then, from those deficiencies, to identify opportunities to improve
them.”365 However, LSP’s mortality reviews contain “no critical analysis, so there’s no
critical review; there’s no identification of the deficiencies.”366 Not a single review contains
identification of anything in the patient’s care that could have been improved, even where
fatal errors occurred.367
At the time of the remedy trial, LSP had conducted four mortality review meetings
since January 2021; these meetings occurred on October 2021, November 2021,
360
Tellingly, Defendants failed to respond in their Reply to any evidence identified by Plaintiffs regarding
deficient mortality review.
361
Rec. Doc. 770, p. 57. Defendants also state, without citation to evidence, that DOC headquarters also
perform mortality reviews. Id.
362
PX 1-a, pp. 14, 25-26; Rec. Doc. 750, Puisis Testimony at 127:18-130:24, 134:17-135:5.
363
JX 69-a, Lavespere Depo. at 203-204.
364
PX 1-a, p. 26 (quoting Health Care Staffing and Staff Development, Peer Review, Internal Review, and
Quality Assurance dated 12 July 2020).
365
Rec. Doc. 750, Puisis Testimony at 127:20-22.
366
Id. at 128:19-21; see generally PX 1-a, pp. 25-31.
367
Rec. Doc. 750, Puisis Testimony at 66:8-68:19, 74:9-23, 78:7-22, 107:1-14 (describing mortality reviews
for Patients #5 & 8); Rec. Doc. 749, Vassallo Testimony at 31:20-24 (Patient #38); PX 1-a, pp. 27-30
(Patients #1 & #5).
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February 2022, and March 2022. These meetings included Dr. Toce, Dr. Johnson, the
Warden, EMS, nursing, medical, and security staff. Minutes from these meetings were
provided to Plaintiffs’ experts.368 Plaintiffs’ experts observed: “The minutes do not discuss
the deaths critically. Neither do those meeting minutes identify any opportunities for
improvement or corrective actions that might be taken to improve. In the four monthly
mortality meeting minutes that were provided, twenty-six deaths were discussed. Not a
single opportunity for improvement was identified.”369 Dr. Lavespere was asked in his
trial deposition if he was aware of any corrective actions taken as a result of mortality
reviews; he testified that he was aware of none.370
Even Dr. Mathis criticized LSP’s mortality review. He agreed that LSP’s mortality
reviews were not “particularly critical,” did not document any problems in patient care that
should be corrected, did not document standard of care violations that Dr. Mathis himself
identified, and were generally inadequate.371
Based on the trial evidence, the Court finds that no significant changes have been
made to LSP’s mortality review process, and the process persists in failing to identify and
correct necessary issues. LSP offered no countervailing evidence. Meaningful mortality
review is a tool for improving medical care. It is an opportunity which is being squandered
by the medical leadership. The Court finds that inadequate mortality review at LSP
contributes to an unconstitutional system of healthcare.
Inappropriate Use of Correctional Personnel
The Court previously held:
368
PX 1-a, pp. 26-27 (citation omitted).
Id. at 27.
370
JX 69-a, Lavespere Depo. at 204:8-18.
371
Rec. Doc. 753, Mathis Testimony at 78:9-79:6.
369
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As evidenced by the malingering policy, the medical department at LSP is
controlled by LSP security rather than medical care providers. Both
Plaintiffs’ and Defendants’ experts agreed that this organizational hierarchy,
under which the medical department reports to security, is not working.
Moreover, orderlies and EMTS also report to the security chain of command
for supervision, and correctional officers supervise the delivery of
medications by other correctional officers. Dr. Lavespere admitted that
security personnel - not medical personnel - are tasked with the initial
assessment of whether an inmate is “really sick” when they purport to have
a medical emergency. Additionally, the Assistant Warden makes resourceallocation decisions such as when nurses are required for pill call. The
Court finds that this system where health care decisions are largely made
by security rather than qualified health care providers is unconstitutional.372
Defendants’ only statement regarding security’s role in medical decisions at LSP
is that promoting Deputy Warden Oliveaux, who reports directly to Warden Timothy
Hooper, “provides a protective barrier between security and medical staff at LSP.”373
Notably, Dr. Johnson reports directly to Oliveaux, who is in the custody chain of
command.374
Although now a shared duty with nurses, security staff continues to supervise
inmate orderlies.375 Additionally, it appears that Dr. Toce still defers to security’s opinion
regarding the need for restraints. Although Dr. Toce testified that he has “the last say” on
the use of black box restraints for medical transport, he also admitted that “unless they
have a really good reason, you don’t let them out of appropriate restraints.”376 There
remains an inappropriate deference to and reliance upon security opinions in medical
decisions.
372
Rec. Doc. 594, p. 30 (footnotes omitted).
Rec. Doc. 770, p. 51.
374
Rec. Doc. 750, Puisis Testimony at 145:18-149:21.
375
Rec. Doc. 757, Stickells Testimony at 29:22.
376
JX 71-a, Toce Depo. at 134:18-20.
373
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Peer Review/Quality Control
The Court previously held there was a lack of necessary peer review at LSP.377
As of the date of remedy trial, Dr. Puisis concluded that LSP’s peer review failed to: (a)
evaluate individual providers’ clinical work,378 (b) consider a sufficient sample of records,
and (c) address whether patients who need specialty care are actually referred.379 These
failures caused repeated errors that contributed to the risk of serious harm to patients. 380
And, although the DOC changed its department-wide peer review policy in 2020 to
increase the number of records reviewed, LSP did not follow suit.381 Dr. Mathis provided
no opinions regarding LSP’s peer review.382
Defendants made no of mention of peer review in any post-trial briefing to the
Court.383 Dr. Toce testified in his trial deposition that he believed the Court’s finding that
LSP lacked an adequate peer review process was “no longer true;” however he failed to
specifically address how LSP’s peer review process has been corrected.384 Defendants
presented no evidence regarding peer review to rebut the evidence presented by
Plaintiffs. Thus, the Court finds that LSP’s inadequate peer review process persists.
LSP’s quality assurance/quality improvement program (“QA/QI”) is now directed
by Stickells, who collects data and prepares reports reviewed by the QA/QI team.385
377
Rec. Doc. 594, p. 37.
Rec. Doc. 750, Puisis Testimony at 118:16-22, 121:6-11.
379
PX 1-a, pp. 21-25. In 2020, a total of 9 records were reviewed using the same methodology as in 2016.
Id. at 23 (citation omitted).
380
Rec. Doc. 750, Puisis Testimony at 120:2-6, 122:5-8.
381
Id. at 115:14-116:25; compare PX 19-I, p. 5 (as of July 12, 2020, requiring review of either ten charts
or 1% of the prison’s population) with PX 1-a, pp. 22-24 (reviewing nine charts in October 2020).
382
Dr. McMunn’s opinions regarding LSP’s peer review practices was excluded for the reasons set for in
Rec. Doc. 720, pp. 7-8.
383
See Rec. Docs. 770, 774.
384
JX 71-a, Toce Depo. at 11-12.
385
Rec. Doc. 757, Stickells Testimony at 10; Rec. Doc. 757, Oliveaux Testimony at 68.
378
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However, Defendants presented no empirical evidence that this program has been
effective in remedying constitutional deficiencies. Dr. Toce testified that he disagreed
with the Court’s liability finding that this area was lacking: “We have plenty of space, and
quality control, I’ve been doing [adequate] quality assessment and quality QA and QI for
years.”386
Despite now being in charge of LSP’s QA/QI program, Stickells has never read
this Court’s liability ruling, and the issues identified by this Court have never been
discussed with her.387
Critical of the purportedly new QA/QI process, Plaintiffs’ experts opined that
““[s]imply counting events does not measure the effectiveness of the services delivered
nor measure outcomes of healthcare.”388 Defendants offered no evidence to rebut these
opinions; indeed, Defendants remain unpersuaded that anything was ever lacking in this
regard. The Court disagrees and finds that LSP continues to lack an adequate quality
improvement program aimed at critical analysis and corrective efforts.
Lack of Medical Staff Involvement in Budgeting
Although the Court previously held that the lack of medical staff involvement in
budgeting contributed to a constitutionally deficient healthcare system at LSP, Dr.
Lavespere testified that the process of developing the budget has not changed since
2016.389 Despite evidence to the contrary, Dr. Lavespere testified that, “the budget has
no impact on the delivery of healthcare at LSP. There’s a standard of care that we’re
386
JX 71-a, Toce Depo. at 12:2-8.
Rec. Doc. 757, Stickells Testimony at 48:20-49:4.
388
PX 1-a, p. 41.
389
JX 69-a, Lavespere Depo. at 11:3-18.
387
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going to deliver, regardless of what the budget it.”390 Dr. Lavespere did not know an exact
number for the current budget to provide medical care for inmates at LSP,391 but he is
“not really concerned with it, because it doesn’t impact the way that we deliver care.”392
Evidence establishes that LSP’s medical budget is determined at a departmental
and legislative level and is fixed based on the prior year’s spending.393 Because this
budget is fixed, the budget is not amended to meet potential increasing demands in health
services. Further problematic, “[n]either Stacye Rodriguez, the Director Nursing for the
Department of Corrections, nor Dr. Lavespere, the Medical Director for the Department
of Corrections, has an appreciable role in setting the budget, which is ‘handed to
[them]’”394 If funding cannot be obtain to meet these changing needs, LSP leadership
should prioritize the allocation of funding to meet the most critical patient needs at the
prison.395
The Court finds that the lack of medical leadership involvement in LSP’s budgeting
process continues to negatively impact the adequacy of medical care received by inmates
at LSP.
Credentialing
Finally, the Court found previously that LSP’s failure to maintain proper
credentialing records contributed to the constitutionally inadequate medical leadership
and organization at LSP.396
390
Id. at 13:1-4.
Id. at 15:15-17.
392
Id. at 17:12-14.
393
PX 1-a at 15 (citation omitted).
394
Id.
395
Id. at 16.
396
Rec. Doc. 594, pp. 39-40.
391
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Defendants made no of mention of credentialing in any post-trial briefing to the
Court,397 and the evidence shows no changes have been made in this area. Dr.
Lavespere testified that “credentialing is the same. There wasn’t anything wrong with our
credentialing.”398 Unsurprisingly, the evidence demonstrates that the lack of proper
credentialing at LSP persists.
Plaintiffs’ experts identified a host of examples of improper credentialing records
and certifications demonstrating LSP’s failure to follow its own personnel directives and
showing how this failure impacts the delivery of healthcare to inmates.399 The Court finds
this evidence and Plaintiffs’ experts’ findings to be credible, and both went unrebutted by
countervailing evidence.
Accordingly, the failure to maintain proper credentialing records at LSP persists
and contributes to the overall constitutionally deficient medical leadership and
organization at LSP. The systemic leadership and management failures perpetuates the
deliberate indifference and callous disregard that permeates the delivery of medical care
at LSP.
397
See Rec. Docs. 770, 774.
JX 69-a, Lavespere Depo. at 213:8-10.
399
PX 1-a, pp. 12-14, 18-21, 110-111.
398
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ADA/RA VIOLATIONS
A. Expert Witnesses - Credibility
17.
Plaintiff’s expert Mark Mazz (“Mazz”) is a highly experienced expert in architectural
compliance with the ADA.400 Mazz was accepted by the Court as an expert under the
ADA in the field of architectural barriers in both the liability and remedy phases of trial.401
Mazz conducted a site visit of LSP on April 6, 2022, during which he toured those
parts of LSP identified by Defendants as accessible spaces. This included the spaces
Mazz surveyed in 2016 that are still deemed necessary for access, and any spaces that
had been deemed substitute spaces for those surveyed in 2016.402 Mazz toured Ash
dorms 1-4, segregation cellblock 28, NU 1 and NU2, the Visitor’s Center, and the
walkways leading to and from these areas.403 In surveying these areas, he applied the
same methodology utilized during his liability phase visit–measuring spaces to ensure
programmatic access required for new construction, altered spaces, and unaltered
areas.404 Mazz testified credibly at the remedy phase trial, and his testimony and findings
went unrebutted, just as they did at the liability phase trial.405
18.
Plaintiff’s expert Dr. Dora Schriro was accepted by the Court as an expert in the
field of corrections administration.406
400
Mazz has over 40 years of experience in this field, having worked with private and public entities to
identify and remedy architectural barriers to the disabled, including for the Architect of the Capitol, federal
agencies, Montgomery County, Maryland, the Department of Justice’s Housing and Civil Enforcement and
Disability Rights sections, and the Department of Housing and Urban Development’s Office of Fair Housing
and Equal Opportunity. For over ten years, Mazz has served as a member of the ACA. PX 4, pp. 5–9.
401
Rec. Doc. 748, Mazz Testimony at 47:24-48:1.
402
PX 4, p. 2; Rec. Doc. 748, Mazz Testimony at 46:17-24.
403
Rec. Doc. 748, Mazz Testimony at 49:9-51:6.
404
Id. at 48:11-21.
405
See Rec. Doc. 594, pp. 8, 97-98.
406
PX 3, pp. 1-2; Rec. Doc. 747, Schriro Testimony at 114:3-17. Dr. Schriro has served as Director of the
Missouri and Arizona correctional systems; Commissioner of the St. Louis and New York City jail systems;
warden of the St. Louis city jail; Assistant Commissioner for Program Services in New York City. She also
Page 70 of 104
19.
LSP did not remedy the ADA violations found by the Court following the liability
trial. The Court finds the ADA violations persist and a remedy is required based on the
following.
Dr. Schriro toured LSP on April 6, 7, and 8, 2022, during which time she
interviewed approximately 40 Class members, including an estimated 30 members of the
ADA Subclass and around ten healthcare orderlies.407 At the remedy trial, Dr. Schriro
testified about the inadequacies of LSP’s ADA administration, opining that the ADA
violations found by the Court identified at LSP persist, including problems with the ADA
coordinator,
the
ADA
advisory
committee,
staff
training,
orderly
assistance,
accommodation requests, the ADA tracking system, and disciplinary accommodations.408
The Court found Dr. Schriro’s testimony credible and credits her opinions.
LSP offered no evidence and no expert testimony that the violations previously
found under the ADA and RA have been addressed or remedied.
B. Architectural Barriers409
20.
On the following record evidence, the Court finds that architectural barriers which
violate the ADA and the RA persist at LSP.
At the time of the liability trial, Mazz identified 190 architectural barriers at LSP that
required remediation to be ADA compliant.410 Mazz inspected LSP on April 6, 2022 in
served as Commissioner of the Connecticut Department of Emergency Services and Public Protection and
as Connecticut’s Homeland Security Advisor. She was also the first Director of the ICE Office of Detention
Policy and Planning. In all of these positions, Dr. Schriro was responsible for implementing and ensuring
compliance with state and federal law, including the ADA and RA.
407
PX 3, p. 4; Rec. Doc. 747, Schriro Testimony at 131:3-4, 131:17-21, 133:5-10.
408
Rec. Doc. 747, Schriro Testimony at 133:25-135:16.
409
Defendants claim they have remedied all architectural barriers required by LSP’s settlement with the
DOJ. First, they offer no evidence from the DOJ affirming this claim. Second, as the Court previously held,
LSP’s settlement with the DOJ is irrelevant to the ADA violations established in this case.
410
Rec. Doc. 594, p. 49 (citations omitted).
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connection with the remedy trial and issued a report connecting each barrier found to the
specific ADA provision it violates.411 By Mazz’s estimation, only 19–20% of the barriers
identified in his 2016 report have been remediated by LSP.412
Mazz credibly showed several barriers that had not been remedied since his 2016
report, including inter alia, abrupt changes in walkway levels impacting wheelchair bound
inmates; cell windows difficult to open and close; doors that cannot be opened
independently by wheelchair bound inmates; and inaccessible drinking fountains.413
Defendants claim that they have remedied 141 of the 190 barriers identified in
Mazz’s 2016 report;414 however, the evidence does not bear this out. and Defendants did
not offer evidence to support this claim.
Defendants presented evidence that they converted Ash 1, 3 & 4 dormitories
(“dorms”) into handicapped accessible dorms for disabled inmates, replacing Cypress 2
and Hickory 4 as disabled dorms.415 This move has placed disabled inmates closer to
the treatment center, pill call, cafeteria, law library, education building, and the easiest
point of access for LSP’s two chapels416–a welcome improvement allowing greater
program access to these services. However, evidence does not support Defendants’
claim that the Ash dorms are fully handicapped accessible or that all disabled inmates
have been moved to the Ash dorms. The Court finds that this change did not rectify the
barriers to access.
411
PX 4.
Rec. Doc. 748, Mazz Testimony at 61:23-62:2; see also id. at 58:3-5, 59:14-15, 61:3-11.
413
Id. at 60:2-61:11.
414
Rec. Doc. 770, p. 54.
415
JX 72-a, pp. 19–20.
416
JX 73-a, pp. 99–101.
412
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Although Defendants characterized the testimony of three disabled inmates
currently housed in the Ash dorms as essentially having no accessibility issues in the Ash
dorms,417 the actual testimony from these inmates reveals otherwise. Dennis Mischler
(“Mischler”), currently housed in Ash 1, testified that he is able to access the toilets and
showers in Ash 1; however, he also testified that “it’s very difficult” to move around in Ash
1 in his wheelchair,418 and this access is “with difficulty because they have a ramp there
. . . the width of the wheelchair” with “two cement lips on both sides. And if you don’t
manipulate that . . . you can hit those and tip over.”419 Mischler “almost fell a couple of
times but was caught by inmates,” and “other people had the same problem.”420 He
further testified that, because there are sixty (60) inmates in Ash 1, “it’s become very –
real problematic and dangerous because when – if one person in a wheelchair is coming
one way and the other person in a wheelchair is going the other way, somebody has to
give. And where the problem comes in is that if you have an emergency, it could really
cause a hazard really bad.”421
Jean Paul Creppel (“Creppel”) also housed in Ash 1, is a wheelchair-bound inmate,
who testified that wheelchair access to the shower is “limited,”422 and because of the width
of the makeshift ramp, “if you don’t hit it the right angle, you could hit the sharp curb and
it could tip you over.”423 Creppel also testified that, “right before they moved us to Ash 1,
they did like a – kind of a quick upgrade of the dorm and it was like a – kind of a real fast
fix and they overlooked a lot of things, and they kind of shortchanged a lot of things …
417
Rec. Doc. 770, p. 56 (citations omitted).
Rec. Doc. 747, Mischler Testimony at 54:21-23.
419
Id. at 55:9-13.
420
Id. at 55:13-15.
421
Id. at 55:2-7.
422
Rec. Doc. 749, Creppel Testimony at 238:2.
423
Id. at 238:16-18.
418
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.”424 Creppel further testified that, even from Ash 1, he had issues getting around the
prison complex: “there’s long distances between callouts; like, say, the chapel or the
visiting shed or library, all these places that are well over 300 yards to get to. So you
usually have a pusher, unless you’re physically able to push yourself.”425
Additionally, although Defendants claim they have moved all disabled inmates into
what they call “fully handicapped accessible” Ash dorms, Warden Falgout admitted just
weeks before the remedy trial that there were still wheelchair-bound inmates housed in
Hickory 4.426
21.
The Court finds the orderly assistance program does not overcome the structural
barriers to access.
Defendants point to Creppel’s testimony that he is assisted by orderlies with
various tasks, including making his bed.427 Creppel testified that the inmate orderlies did
everything that he needed help with and that they “had kind hearts and did a good job.”428
However, Creppel also testified that there were not enough inmate orderlies to “keep up
with” the needs of the disabled inmates: “well, you have a lot of old, irritable sick men.
You have people with conditions like mine, some worse, some less. It’s not very sanitary.
The orderlies try to keep up with it. But you got so much -- you have a lot of urine and
defecation. Usually in the shower area. The access is limited.”429
Mischler described an instance when the orderlies locked the inmates out of an
Ash dorm to clean the dorm. In an effort to get out of the sun due to his history of skin
424
Id. at 238:4-7.
Id. at 239:21-24.
426
JX 73-a., Falgout Depo. at 116:22-23 (testifying on March 8, 2022, that “[w]e have some offenders [in
wheelchairs] right now that are on Hickory 4”).
427
Rec. Doc. 749, Creppel Testimony at 249:21-25.
428
Id. at 245:5-7, 17-19.
429
Id. at 237:23-238:2.
425
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cancer, and after he knocked on the door of the dorm but no one answered, Mischler
attempted to wheel himself into a shaded area; however, he flipped over and landed on
his back after trying to use an incomplete ramp with no guardrails.430 Mischler testified
that he was in a great deal of pain after this fall, but “there was only one orderly, health
care orderly, out there. And he was with another patient at the end of the -- on the other
side of the dorm.”431 Other inmates had to assist Mischler because there not was an
orderly available; the inmates “pounded on the door” for assistance, but the “orderlies
wouldn’t open the door.”432
Dr. Shriro testified that, of the 80 inmate orderlies assigned to assist disabled
inmates, 58 were assigned to the Ash dorms, leaving only 22 to serve as “pushers” or
“walkers,” i.e. “the folks who either push those wheelchairs around or assist in the, you
know, walking of the wheelchair, I guess.”433 Dr. Shriro credibly explained why this
number is insufficient: “And the campus is so big, and it’s of so many different kinds of
terrains, and the configuration of housing units are such, I just can’t imagine that 22 is
sufficient for a facility as large as that is with the demographics of the population that, you
know, I described to you a couple of minutes ago.”434
22.
The Court finds that numerous architectural barriers remain at LSP that are not
sufficiently ameliorated by orderlies. The Court finds that the physical barriers to program
access necessitate injunctive relief to bring LSP’s facilities into compliance with the ADA
and RA, where legally applicable.435
430
Rec. Doc. 747, Mischler Testimony at 52:17-53:9.
Id. at 53:13-15.
432
Id. at 53:17-18.
433
Rec. Doc. 747, Schriro Testimony at 144:24-145:8.
434
Id. at 145:9-14.
435
The Court intends to appoint a monitor to assist in determining the specifics of remediation of structural
barriers.
431
Page 75 of 104
C. Inmate Orderly Assistance Program
23.
The Court previously held that LSP violated the ADA and RA by failing to provide
adequately trained, staffed, and safe orderly assistance where physical modifications
were not made and by failing to provide proper oversight of health care orderlies. The
Court finds that inmate orderlies continue to be utilized beyond the scope of their duties
and training. The Court further finds that inmate orderlies are tasked beyond their training
and knowledge to compensate for the serious lack of medical staff that should be
assessing and assisting the medical needs of the disabled.436
Defendants concede that “The training materials or practices for inmate orderlies
have not changed since the close of liability discovery,” and “Orderlies are used the same
today as they were at the close of liability discovery.”437
Training
The Defendants failed to prove that inmate orderlies are trained before they are
assigned to work with disabled inmates.438
Some orderlies observed by Dr. Shriro
reported that they had no training while others said they were not trained until after they
had already started working on the assisted living wards.439
The training materials, when provided to the orderlies, are limited in usefulness
considering the breadth of needs facing disabled inmates. While LSP’s PowerPoint
training teaches wheelchair safety, a narration of body systems, and how to change a
bed and rotate a patient, this training is extremely limited and fails to address myriad other
436
See PX 3, p. 12.
PX 44-d, p. 4.
438
As discussed supra, healthcare orderly Bruce Hines testified that, although he had been working as an
orderly for three years, he did not receive training until March of 2022, just weeks before the remedy phase
discovery deadline.
439
PX 3, p. 12.
437
Page 76 of 104
disabilities, such as blindness, respiratory problems, diabetes, or dementia/mental illness,
to name a few.440
Defendants advance Stickells’ testimony regarding the inmate orderly training,441
as evidence that LSP’s orderly inmate training is improved, Dr. Schriro was critical of this
training as it pertains to assisting disabled inmates in accordance with the ADA and RA.
Stickells testified that the inmate orderly training has been updated to include a
wheelchair safety tip,442 but she admitted that “the substance” of the training “is the same,”
she “just changed the way it looks.”443 On cross, Stickells admitted that the “new” training
Power Point slides did not add new content; she simply “changed its appearance for
easier reading.”444
Stickells testified that orderly training is done “as needed” and generally when
“brought to [her] attention by Dr. Jacobs”. Stickells further that she advised Dr. Jacob that
this training “needs to be done at least quarterly,” but there is no evidence before the
Court that this recommendation by LSP’s ADA compliance official was followed.
Abuse/Neglect
The Court finds no pervasive pattern of orderly abuse and/or neglect of disabled
patients at LSP. Plaintiffs contend that their evidence “showed multiple examples of
orderly abuse,”445 and they point to three instances–two where an orderly allegedly
punched a patient in the head and one where an orderly choked a patient.446 However,
440
Id.
Rec. Doc. 757, Stickells Testimony at 23-28.
442
Id. at 27:7-18; DX 47, p. 33.
443
Id. at 42:22-24.
444
Id. at 43:14-17.
445
Rec. Doc. 771, p. 62.
446
PX 1-a, p. 102 (Patient #18, who was punched in the head by an orderly); id. at 103 (Patient #69, who
was choked by an orderly; Patient #22, who was punched in the head by an orderly).
441
Page 77 of 104
Defendants presented evidence that the orderly who choked a patient was immediately
disciplined and removed from the program.447 Defendants also presented evidence that
one of the instances of abuse claimed by Plaintiffs could not have occurred because that
particular patient was deceased at the time of the alleged abuse.448
Evidence also establishes that LSP screens applicants for the inmate orderly
program. Stickells testified that applicants are screened for “any disciplinary action, you
know, if they have a history of any type of, you know, something -- they have to meet that
criteria.”449 Stickells highlighted that LSP does not want orderlies that, for example, have
“multiple disciplinary actions for theft or strong-arming somebody or something like that.
We like to keep the patients safe.”450
After Dr. Shriro’s site visit, she credibly concluded that “[m]ost Healthcare Orderlies
work hard and are deeply affect by the severity of patients’ afflictions … most Healthcare
Orderlies take a lot of pride in their work.”451 The Court concludes that there is no
pervasive problem of orderly abuse of disabled patients at LSP.
Supervision of Orderlies
While there is insufficient evidence of orderly abuse/neglect, the Court finds that
there is a serious lack of supervision or oversight of inmate orderlies by both medical staff
and security personnel. This lack of supervision necessarily contributes to violations of
the ADA and RA at LSP.
447
NP Park testified that this orderly “was disciplined and written up and he no longer works there.” Rec.
Doc. 752, Park Testimony at 30:22-23.
448
According to Plaintiffs’ expert report, Patient #18 “was housed in a locked infirmary room and reported
an orderly punched him in his head” on August 6, 2020. See PX1-a, p. 102. However, Patient #18 died on
May 6, 2020. See DX 2 at 653 (confirming that Patient 18 died May 6, 2020, not on January 6, 2021, as
stated in Plaintiffs’ expert report).
449
Rec. Doc. 757, Stickells Testimony at 29:13-16.
450
Id. at 29:17-19.
451
PX 3, p. 13.
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Preliminarily, the Court rejects any assertion that that security should have no role
in supervising inmate orderlies. Some overlap in supervision is necessary considering
the position of trust inmate orderlies are placed in. It is appropriate for security to
supervise the conduct of orderlies, which the Court finds is a prophylactic against potential
abuse of an inmate patient by an inmate orderly. However, security is not qualified to
supervise whether inmate orderlies are complying with their duties to assist inmates with
health care needs and/or disabilities. Qualified medical staff must supervise this aspect
of the orderly program.
Stickells, who oversees the orderly program, testified that she knows that orderlies
are following their training because “the nurses will let [her] know if they’re not.”452 She
further testified that she also makes rounds and “check[s] on [the orderlies] [herself].”453
In her deposition, she testified that she conducts surprise visits approximately once a
month, and the orderlies “know where to find” her if they need her.454 Dr. Shriro expressed
doubt as to Stickells’ purported oversight because, during her site visit, she observed the
orderlies routinely exceed the scope of their duties and did not see any nurses on the
floor with patients; in fact, no nurses or medical personnel visited the Ash dorms during
her three-day site visit.455
The evidence shows that nurses and medical personnel are not rounding the Ash
dorms where the disabled patients are housed; thus, Stickells’ reliance on nurses to report
problems of abuse/neglect/failure to adhere to training is pointless. Further, given the
number of disabled inmates at LSP, the Court finds that monthly surprise visits are
452
Rec. Doc. 757, Stickells Testimony at 30:12-18.
Id. at 30:18-19.
454
PX 3, p. 13 (quoting Stickells Deposition at 60:24 – 61:18).
455
Id. at 12.
453
Page 79 of 104
woefully insufficient to determine if orderlies are properly performing appropriately
assigned tasks. For example, Stickells testified in her deposition that LSP did not have
many problems with falls on the nursing unites; at trial, she was “surprised” to learn that,
between March 2020 and December 2021, there were “at least 87 documented falls in
the medical occurrence reports.”456
The evidence shows that orderlies, rather than nursing staff or corrections officers,
determine their work assignments.457
Orderlies do not have the training or skill to
determine what assistance they are qualified to offer disabled inmates or what assistance
requires medical staff. Dr. Schriro credibly concluded that there was no rationale to the
orderly staffing levels, nor did she observe any supervision of orderlies by either medical
staff or security personnel.458
D.
24.
LSP ADA Directives/Qualified ADA Coordinator
The Court finds that LSP continues to fail to meaningfully comply with its own ADA
Policy Directives, which contributes to violating the ADA and RA rights of disabled
inmates.
Specifically, “LSP Directive 01.016 requires LSP to maintain an ADA Advisory
Committee consisting of the ADA Coordinator, the Deputy Warden for Operations, a staff
attorney, the Safety Director, and the Health Information Management Supervisor. The
purpose of this committee is to review ADA compliance on a monthly basis and
recommend corrective action to the warden where appropriate.”459 The Court found that:
“Despite this Directive, neither LSP’s ADA Coordinator, nor its past or present wardens,
456
Rec. Doc. 757, Stickells Testimony at 45:4-17.
PX 3 at 12.
458
Id.
459
Rec. Doc. 594, p. 59 (footnotes omitted).
457
Page 80 of 104
were aware of the existence of such a committee, and Defendants have admitted that
‘[n]o such committee existed during the pendency of this lawsuit.’”460
Rather than address policy compliance, LSP simply removed several of the
Directive’s requirements. In 2018, after the Court issued its findings, Directive 01.016
was amended to remove any mention of an ADA Advisory Committee, any reference to
training, and the qualification requirements for the ADA Coordinator.461
Dr. Schriro
credibly testified that the original Policy created “good expectations,” but the removal of
these requirements is “a significant step backwards.”462 The Court agrees. The Court
finds that the ADA Coordinator is untrained and lacks the experience to manage a
compliant ADA program.
The Court also finds that LSP’s new ADA Coordinator, Warden Oliveaux, is
perhaps less qualified than her predecessor, Warden Falgout, to oversee and
administrate LSP’s ADA compliance. Specifically, the Court found that “Asst. Warden
Falgout is juggling far too many competing responsibilities to adequately fulfill his
obligations as ADA Coordinator for the LSP,” and that “LSP failed to provide adequate
training and resources to any of its ADA Coordinators, and none of the ADA Coordinators
during the relevant time period possessed the knowledge or experience necessary to
oversee and ensure ADA compliance.”463
The evidence establishes that Oliveaux is juggling just as many responsibilities at
LSP as Falgout did, she has less experience in general than Falgout, and the ADA training
460
Id. (citations omitted).
PX 21-d. The only language related to ADA Coordinator qualifications in the updated version reads “For
the purpose of this directive, an appropriately trained and qualified individual is one who has been
designated by the Warden to coordinate efforts to comply with and carry out responsibilities defined by the
ADA.” Id. at 1.
462
Rec. Doc. 747, Schriro Testimony at 125:15-18.
463
Rec. Doc. 594, p. 58 (citations omitted).
461
Page 81 of 104
she has received is just as lacking. Aside from managing ADA administration at LSP,
Oliveaux is also tasked with the oversight of LSP’s medical care, mental health care,
emergency medical services, fire, legal program, and training academy.464 She testified
that at least four department heads report directly to her.465 She further testified that
medical, mental health, EMS, and fire duties account for 50% of her time while other
duties make up the remaining 50%.466
Revealingly, when Oliveaux interviewed for her current position of deputy warden
in February 2022, she testified that the role of ADA Coordinator was never discussed
during the interview.467 Oliveaux also testified that she was not aware that the role ADA
Coordinator was within her job duties until after she started the job.468 At the time
Oliveaux took over as deputy warden and became the ADA coordinator, she had no
knowledge of the specifics of this lawsuit, the findings of the Court relevant to the ADA/RA
after the liability trial, and no knowledge of what the ADA/RA requires for prisons.469 In
her pre-trial deposition, Oliveaux testified that she intended to take the same ADA training
that Falgout had received–training this Court found insufficient.470 At the remedy trial,
Oliveaux testified that she had obtained additional ADA training during an “ADA
Symposium,” however, she also testified that this training pertained primarily to physical
barriers, an area over which she has little involvement.471
464
Rec. Doc. 757, Oliveaux Testimony at 54:13-17, 57:5-13.
Id. at 56:9-20.
466
Id. at 58:1-5.
467
Id. at 80:7-17.
468
Id. at 80:18-21.
469
Id. at 81:1-24.
470
Id. at 82:25-83:3; see Rec. Doc. 594, p. 58.
471
Id. at 83:4-8, 83:17-19; 79:1-3.
465
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LSP’s hiring of a new DOC ADA Coordinator, Sharita Spears (“Spears”) does not
affect the Court’s finding.472 Although Spears has been an attorney since December
2020,473 her background is in family law; she has no experience with disability law or the
ADA/RA.474 Spears’ duties include supervising all ADA coordinators within the DOC;
reviewing institutional policies and directives related to the ADA; maintaining the ADA
database; creating and coordinating ADA training; and answering “second-level” ARPs
related to the ADA.475 Defendants claim Spears has “overhauled” the ADA training
program for staff at headquarters and all DOC facilities, including LSP.476 Spears intends
to enhance the annual in-serving training of DOC staff to include more ADA topics.477
While Spears appears committed to and invested in her role, some aspects of her training
and administration of ADA matters are flawed and directly against LSP policy, which
provides that “[t]he ADA does not require that a request for accommodation be provided
in any particular manner.”478
While Spears testified that an inmate could make an ADA accommodation request
verbally or by filling out a “request for accommodation form,”479 and that the ADA
Coordinator could grant such a request, she also testified several times that, according
to the ADA training slides, accommodation requests were made using the ARP
process.480 The Court cannot discern from Spears’ testimony or the training slides if the
ADA accommodation request policy is being followed per the Policy Directive or forced
472
Rec. Doc. 757, Spears Testimony at 88:3-7.
Id. at 88:11-14.
474
Id. at 107:14-19.
475
Rec. Doc. 770, p. 64 (citing Rec. Doc. 757, Spears Testimony at 88-91, 105).
476
Id. (citing Rec. Doc. 757, Spears Testimony at 90-91).
477
Rec. Doc. 757, Spears Testimony at 94-95; see also DX43.
478
JX 73-c, p. 4.
479
Rec. Doc. 757, Spears Testimony at 111:3-15.
480
Id. at 111:24-112:4; 114:15-25.
473
Page 83 of 104
through the ARP process. However, the evidence makes clear that this leadership
training Power Point is confusing and could lead LSP leadership and employees to apply
the policy incorrectly.
Spears testified that the DOC intends to engage Accessology, an independent
ADA consulting firm, to create a transition plan to comprehensively analyze and evaluate
DOC’s (including LSP’s) ADA practices, policies, procedures, program access, and
physical access.481 While this is very encouraging, the Court must determine appropriate
injunctive relief for those deficiencies that remain at LSP as of the remedy trial; the Court
cannot make findings based on the promise of future remedies.
E. ADA Training of Medical/Correctional Staff
25.
The Court finds that LSP fails to adequately train medical and correctional staff in
ADA compliance. The Court finds that ADA training for medical and correction staff is
essentially unchanged since the liability ruling and, thus, remains unlawful.
LSP admitted that training has not changed.482 Even more troubling, LSP removed
from Directive 01.016 the requirement that all employees receive: “comprehensive annual
training . . . relevant to access to programs, and activities available to individuals with
disabilities.”483 Spears testified that the annual in-service training for all correctional staff
occurs annually, and these trainings are “geared toward deaf and hard-of-hearing
offenders” and how to effectively communicate with them.484 Spears testified that this
training would be updated even though, “there is not anything that [LSP] need[s] to update
481
Id. at 98:2-25.
PX 44-d, p. 3, Response to ROG 15 (“[T]he training materials [and] practices related to ADA
accommodations have not changed.”).
483
Compare JX 73-b (2012 version), p. 8 with JX 73-c (2020 version).
484
Rec. Doc. 757, Spears Testimony at 94:12-18.
482
Page 84 of 104
so far as content,” to “kind of add a little bit more information to it to better help the security
staff know how to deal with these offenders.”485 However, Spears also testified at the
remedy trial that, “right now the content has not been decided upon.”486 References to
purported non-specific, future changes cannot mitigate the need for injunctive relief.
F. Identifying and Tracking Accommodation Requests/Disability Grievances
26. The Court finds that LSP continues to fail to identify and track disabilities and
accommodations. The Court further finds that LSP’s tracking system does not provide
meaningful identification and tracking of disability grievances or ADA accommodation
requests. The evidence before the Court demonstrates that nothing has changed to
remedy this tracking procedure since the liability ruling. The Defendants admit that “there
have been no changes in the way documents and/or databases are compiled, collected,
or maintained with respect to … the ADA Tracking Database.”487
While Spears testified that she checks ADA database “probably two to three times
a week” and finds it searchable by year, institution, inmate DOC number, inmate name,
and accommodations granted,488 she did not testify that the database had been changed
in any way since the liability ruling. Indeed, Defendants ostensibly acknowledge this
deficiency as part of the need to engage Accessology to review all ADA policies
procedures.
Evidence demonstrates that the tracking database information routinely conflicts
with the QA/QI program, showing conflicting numbers of accommodations for most
485
Id. at 95:1-9.
Id. at 95:12-13.
487
PX 44-c, p. 6.
488
Rec. Doc. 757, Spears Testimony at 100:22-101:23.
486
Page 85 of 104
quarters.489
When asked about this discrepancy, Stickells, as QA/QI Coordinator,
testified that this conflict was because accommodation requests had not been submitted
to her, not necessarily because none were made.490 Warden Falgout was questioned
about the discrepancy between the reports, and he could not explain why the QA/QI study
did not document all ADA requests.491 Based on her experience in other correctional
facilities, the reports of Subclass members, the size of LSP, and the number of disabled
and aging inmates at LSP, Dr. Schriro reasonably concluded that LSP’s tracking system
is undercounting accommodation requests, stating that the recorded accommodation
requests per month “really seems to be an exceptionally low number.”492
G. Evaluation/Resolution of Accommodation Requests/Disability Grievances
27.
The Court finds that the evaluation and resolution of accommodation requests
and/or disability grievances remain unchanged and violate the ADA and RA. There has
been no effective remedial changes made to LSP’s training of medical and correctional
staff or inmate orderlies, no changes to the tracking system, and there remains confusion
about whether disabled inmates are required to file accommodation requests as ARPs.
Evidence shows that individualized response plans, required under LSP Directive
01.016, are not created for disabled patients.493 Disabled inmates reported to Dr. Shriro
that, when they file accommodation requests via ARP, they receive no response.494
There is also evidence of the inexplicable removal of an accommodation. For example,
although he has used a wheelchair for over 20 years, Class Member John Price testified
489
Compare PX 34-b and PX 34-a (QA/QI reports) with PX 36 (ADA accommodation requests).
Rec. Doc. 757, Stickells Testimony at 38:3-18.
491
JX 72-a, Falgout Depo at 41-43:10-12.
492
Rec. Doc. 748, Schriro Testimony at 44:20-24, 135:2-6.
493
PX 3, p. 14.
494
Id.
490
Page 86 of 104
(via stipulation) that LSP has tried to take away his wheelchair. This allegation was
uncontroverted.495
H. Identifying and Tracking Accommodation Requests/Disability Grievances
28.
The Court finds that LSP fails to accommodate disabled inmates when applying
discipline. The Court finds that Defendants fail to consider the need for appropriate
accommodations when disciplining disabled inmates in violation of the ADA and RA. The
Court concludes that LSP’s discipline policies, as applied to disabled inmates, violate the
ADA/RA.
Testifying on behalf of LSP, Warden Falgout testified that LSP had no plans “at
this time” to change any LSP’s practices, policies, or procedures regarding discipline of
disabled inmates.496 Falgout was asked when an inmate’s disability under the ADA would
become relevant in making disciplinary decisions, and he responded, “They wouldn’t …
A rule violation is a rule violation.”497 Although security is purportedly trained to seek
counsel from the ADA Coordinator and/or medical staff when an inmate’s conduct could
be related to an infraction, and the matter should be referred to the Disciplinary Board,
Falgout could not recall any specific instances when he was asked to make this
determination.498 He recalled one instance where a disabled inmate was “written up” for
not placing his locker box away properly, and it was determined after consulting with
medical and the inmate’s duty status that he could not physically move the locker box,
495
JX77-c, pp. 8-9.
JX 72-a, Falgout Dep. at 44:1-4.
497
Id. at 46:6-12.
498
Id. at 46-48.
496
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and stated “so that was taken into consideration in the infraction.”499 However, Falgout
could not recall whether or not the inmate was still disciplined for the infraction.500
Rather than preemptively ensure that an inmate’s disability is considered when
creating proper discipline, if a disabled inmate wishes to appeal a disciplinary decision
based on his disability, he must endure the discipline and seek an appeal.501
Falgout
could not recall a single time when a disabled inmate appealed discipline.502
Oliveaux
testified
that
she
has
received
no
training
regarding
ADA
accommodations for disabled inmates when applying discipline.503
The evidence established that a quadriplegic inmate was disciplined by means of
solitary condiment in a cell. When placed in disciplinary segregation in a locked cell,
Class Member Derrick Martin, who is a quadriplegic confined to a wheelchair with limited
use of one arm, could not reach the call button to activate the call light. While Parks
testified that she responded to Martin’s call bell on one occasion when he was in a locked
cell, there is ample evidence before the Court that causes the Court to question whether
nurses always or routinely respond to call lights, given the sight and sound barriers,
observations by Plaintiffs’ experts, and testimony of inmate orderlies. The Court does not
question the truthfulness of Park’s testimony; however, the fact that she recalls
responding once to a call light does not establish that disabled patients in disciplinary
segregation are accommodated.
499
Id. at 49:2-11.
Id. at 49:24-25.
501
Id. at 51-52.
502
Id. at 52:8*12.
503
Rec. Doc. 757, Oliveaux Testimony at 83:20-22.
500
Page 88 of 104
Evidence shows that black box restraints are routinely used on disabled inmates
regardless of their disabilities, and a sign on the Trip Office in the Treatment Center reads:
“WE DO NOT MODIFY RESTRAINTS IN THIS OFFICE. THANK YOU FOR NOT
ASKING!!!”504 This violates LSP’s policy that allows any disabled inmate to request an
accommodation of any LSP employee at any time.505
The Court does not discount the need for security in a prison setting, and not every
disability accommodation request should be granted when balanced against security
needs. However, in practice, the evidence established that LSP has no process for
considering the propriety of accommodation requests. LSP’s blanket practices, such as
the black box restraint practice o disregard a disabled inmate’s disability in applying
discipline. The law requires the accommodation requests of disabled inmates to be
balanced against the security needs of the prison, but these determinations are to be
made on a case-by-case basis.506 This is not occurring at LSP, and the Court finds that
LSP persists in failing to consider and/or make accommodations where appropriate in
administering discipline.
I. Exclusionary Policies
29.
The Court finds that Plaintiffs have failed to carry their burden of demonstrating
that LSP continues to violate the ADA/RA by uniformly excluding disabled inmates form
certain duty statuses, work assignments, or hobby craft.
504
PX 1-d, p. 6.
JX 73-c.
506
Determining “whether a modification or accommodation is reasonable always requires a fact-specific,
context-specific inquiry.” Pierce v. Cnty. of Orange, 526 F.3d 1190 (9th Cir. 2008)(citing Zukle, 166 F.3d
at 1048)).
505
Page 89 of 104
The only evidence offered by Plaintiffs regarding blanket exclusionary policies is
the expert report of Dr. Schriro, who concluded, based on Defendants’ general response
that “there have been no changes to the practices, procedures, or policies related to ADA
accommodations.”507 Dr. Schriro’s conclusion is unfounded and speculative.
While Falgout testified that there was no specific, written change to LSP’s duty
status policy, he testified that “the practice has changed to afford more specificity for all
staff to be able to understand and be able to provide the offender with abilities to do things
based on limitations.”508 Following 2019, Falgout explained that “the emphasis got to be
more specific on what an offender was able to do and not just blanket, no duty or no
hobby craft or no rodeo … there was a general consensus to transition to providing them
with the ability to do things were within -- within their ability, to be able to paint or draw or
do other things as far as, like, hobby craft.”509 When asked whether all blind inmates at
LSP are on no-duty status, Falgout responded that he was unaware specifically if that
was the case but that it would “not necessarily” be so because medical would determine
the appropriate duty for a blind inmate.510 Falgout explained that the severity of the
blindness would impact an inmate’s duty status:
If he was blind completely blind, both bilaterally, then, if he felt comfortable
in doing any work, we would do our best to provide him with something that
would be safe for him, safe in the environment that he’s in. If we have
someone who has unilateral sight loss, then, if they wanted to have a job,
we’d have to look at their safety. They would have to wear safety glasses.
We don’t want to put them in anything that would increase their potential to
lose the sight in the unaffected eye. So that’s what we would look at.
Specific job, I don’t -- again, it depends.511
507
PX 3, p. 17.
JX 72-a, Falgout Depo at 55:3-7.
509
Id. at 55:21-56:17.
510
Id. at 57:9-22.
511
JX 73-a, Falgout Dep. at 95:24-96:12.
508
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Falgout testified similarly when asked about elderly inmates, inmates with chronic
pain issues, and inmates with mental health challenges; in each case, he responded that
work assignments would be based on the inmate’s limitations and abilities.512
V.
CONCLUSIONS OF LAW
A.
Eighth Amendment Standard
In a “prison injunction case . . . The evidence must show over the course of the
timeline that officials knowingly and unreasonably disregarded an objectively intolerable
risk of harm, and that they will continue to do so; and finally to establish eligibility for
an injunction, the inmate must demonstrate the continuance of that disregard
during the remainder of the litigation and into the future.”513 “Courts may not allow
constitutional violations to continue simply because a remedy would involve intrusion into
the realm of prison administration.”514
Deliberate indifference to “serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.”515 This
inquiry consists of both an objective and a subjective test. The objective test requires
showing that the prisoner has “serious medical needs,”516 and “either has already been
harmed or been ‘incarcerated under conditions posing a substantial risk of serious
harm.’”517 To prove an Eighth Amendment violation, Plaintiffs must prove that prison
officials “1) show[ed] a subjective deliberate indifference to 2) conditions posing a
512
Id. at 97-99.
Valentine v. Collier, 993 F.3d 270, 282 (5th Cir. 2021) (quoting Farmer v. Brennan, 511 U.S. 825, 846
(1993))(emphasis added)(internal quotation marks omitted).
514
Brown v. Plata, 563 U.S. 493, 511 (2011).
515
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173
(1976)(citations omitted); see also Jackson v. Cain, 864 F.2d 1235, 1244 (5th Cir. 1989).
516
Estelle, 429 U.S. at 104.
517
Braggs v. Dunn, 257 F. Supp.3d 1171, 1189 (M.D. Ala. 2017) (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)).
513
Page 91 of 104
substantial risk of serious harm to the inmate.”518 An official is not liable for deliberate
indifference “unless the official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.”519 To
meet his burden, “the plaintiff must show that the officials ‘refused to treat him, ignored
his complaints, intentionally treated him incorrectly, or engaged in any similar conduct
that would clearly evince a wanton disregard for any serious medical needs.’”520
Whether or not officials knew of the risk is considered the subjective component of
the deliberate indifference standard,521 which requires a state of mind amounting to
recklessness as used in criminal law.522 The subjective test requires a showing that prison
officials had requisite knowledge of the risk of harm and either (1) disregarded it or (2)
failed to act reasonably to abate it.523 Willful blindness to the risk posed to inmates is not
a valid defense to a deliberate indifference claim.524
Systemic deficiencies in a prison’s health-care system can provide the basis for a
finding of deliberate indifference at an institutional level.525 The cumulative effect of
518
Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. at 833-34).
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
520
Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v. Treen,
759 F.2d 1236, 1238 (5th Cir. 1985)).
521
Farmer, 511 U.S. at 848.
522
Williams v. Hampton, 797 F.3d 276, 281 (5th Cir. 2015) (en banc) (citing Farmer, 511 U.S. at 839–40);
see also Hacker v. Cain, No. 3:14-00063-JWD-EWD, 2016 WL 3167176, at *10 (M.D. La. June 6, 2016)
(“An intent to harm or animus towards a particular inmate is not itself required so long as such reckless
disregard for his or her medical needs can be shown.”); Hall v. Johnson, No. 12-00099-BAJ-RLB, 2013 WL
870230, at *3 (M.D. La. Mar. 7, 2013).
523
Farmer, 511 U.S. at 844-45; see also Braggs v. Dunn, 257 F. Supp. 3d 1171, 1250 (M.D. Ala. 2017)(“To
establish deliberate indifference, plaintiffs must show that defendants had subjective knowledge of the harm
or risk of harm, and disregarded it or failed to act reasonably to alleviate it.”).
524
See Farmer, 511 U.S. at 843 n.8 (a prison official “would not escape liability if the evidence showed that
he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm
inferences of risk that he strongly suspected to exist”).
525
See Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004)(“Conditions of confinement may establish an
Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when they have a
mutually enforcing effect that produces the deprivation of a single, identifiable human need . . . .”).
519
Page 92 of 104
different deficiencies can demonstrate the subjective component of deliberate
indifference, as the Supreme Court acknowledged in Wilson v. Seiter.526 In class actions
challenging systemic health care deficiencies, deliberate indifference to inmates’ health
needs may be shown by proving “repeated examples of negligent acts which disclose a
pattern of conduct by the prison medical staff,” or by proving there are such “systemic
and gross deficiencies in staffing, facilities, equipment, or procedures that the inmate
population is effectively denied access to adequate medical care.”527
The fact that a risk is obvious is sufficient to allow a fact finder to conclude that
prison officials knew of the risk.528 Plaintiffs may also demonstrate knowledge through
inference from circumstantial evidence.529 If there is proof of a problem that is
“longstanding, pervasive, well-documented, or expressly noted by prison officials in the
past, and the circumstances suggest that the defendant-official being sued had been
exposed to information concerning the risk and thus ‘must have known’ about it, then
such evidence could be sufficient to permit a trier of fact to find that the defendant-official
had actual knowledge of the risk.”530
For purposes of the remedy trial, Plaintiffs have demonstrated that “systemwide
deficiencies in the provision of medical . . . care . . . taken as a whole, subject sick
prisoners in [LSP] to ‘substantial risk of serious harm’ and cause the delivery of care in
526
501 U.S. 294, 300 (1991) (rejecting a distinction between “one-time” or “short-term” conditions of
confinement and “continuing” or “systemic” conditions).
527
Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (citations omitted); Lawson v. Dallas Cnty., 112 F.
Supp. 2d 616, 635 (N.D. Tex. 2000); see, e.g., Williams v. Edwards, 547 F.2d 1206, 1215-16 (5th Cir.
1977).
528
Farmer, 511 U.S. at 842; Hinojosa v. Livingston, 807 F.3d 657, 667 (5th Cir. 2015); Gates, 376 F.3d at
333; Robinson v. Babin, No. 12-00629-BAJ-RLB, 2014 WL 2769099, at *4 (M.D. La. June 18, 2014).
529
Farmer, 511 U.S. at 842.
530
Hinojosa, 807 F.3d at 665 (quoting Farmer, 511 U.S. at 842-43) (internal quotation marks omitted).
Page 93 of 104
[LSP] to fall below the evolving standards of decency that mark the progress of a maturing
society,”531 and that, in large part, these deficiencies persist.
Turning to the objective test, the Fifth Circuit has defined a “serious medical need”
as “one for which treatment has been recommended or for which the need is so apparent
that even laymen would recognize that care is required.”532 To establish a substantial risk
of serious harm, “it does not matter whether the risk comes from a single source or
multiple sources.”533 “[M]ultiple policies or practices that combine to deprive a prisoner
of a ‘single, identifiable human need,’ such as [medical care], can support a finding of
Eighth Amendment liability.”534 Moreover, the Fifth Circuit has long recognized that “the
totality of circumstances concerning medical care” may violate the Eighth Amendment.535
The “seriousness” of an inmate’s medical need may also be determined by reference to
the effects of a delay in treatment.536 “Serious medical needs” also include conditions that
threaten to cause health problems in the future.537 Plaintiffs have carried this burden at
the remedy trial.
As for the subjective test, Plaintiffs must demonstrate that Defendants have the
same “sufficiently culpable state of mind” as found by the Court in the liability ruling.538 “In
prison-conditions cases that state of mind is one of deliberate indifference to inmate
531
Rec. Doc. 573, p. 247 (quoting Brown v. Plata, 563 U.S. 493, 505 n.3 (2011)).
Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).
533
Farmer, 511 U.S. at 843; see also Wilson v. Seiter, 501 U.S. 294, 304 (1991) (“Some conditions of
confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do so
alone, but only when they have a mutually enforcing effect that produces the deprivation of a single,
identifiable human need such as food, warmth or exercise[.]” (emphasis in original)).
534
Braggs, 257 F. Supp. 3d at 1192 (quoting Gates v. Cook, 376 F.3d at 333).
535
Williams v. Edwards, 547 F.2d 1206, 1215 (5th Cir. 1977).
536
Hill, 40 F.3d at 1188.
537
See Farmer, 511 U.S. at 843.
538
Id. at 834 (internal citation and quotation marks omitted).
532
Page 94 of 104
health or safety.”539 Even in situations where awareness is shown, prison officials will not
be liable “if they responded reasonably to the risk.”540 However, prison officials cannot
escape liability simply by demonstrating that they eventually took some form of “corrective
action” in response to a risk of harm.541 Efforts to correct systemic deficiencies that
“simply do not go far enough,” when weighed against the risk of harm, also constitute
deliberate indifference542 because such insufficient efforts are not “reasonable measures
to abate” the identified substantial risk of serious harm.543 Further, “[i]nsisting upon a
course of action that has already proven futile is not an objectively reasonable response
under the deliberate-indifference standard” and would support a finding of liability under
the Eighth Amendment.544
In this case, deliberate indifference may also be established “by proving that there
are such systemic and gross deficiencies in staffing, facilities, equipment, or procedures
that the inmate population is effectively denied access to adequate medical care.”545 “In
challenges to a correctional institution’s provision of medical care, evidence of systemic
deficiencies can also establish the ‘disregard’ element of deliberate indifference.”546 “As
an evidentiary matter, these systemic deficiencies may be identified by a ‘series of
incidents closely related in time’ or ‘[r]epeated examples of delayed or denied medical
care.’”547 “[A]lthough one-off negligent treatment is not actionable, . . . frequent
negligence, just like a single instance of truly egregious recklessness, may allow the court
539
Id. (internal citation and quotation marks omitted).
Id. at 844.
541
Bradley v. Puckett, 157 F.3d 1022, 1026 (5th Cir. 1998).
542
Laube v. Haley, 234 F. Supp.2d 1227, 1251 (M.D. Ala. 2002).
543
Farmer, 511 U.S. at 847.
544
Braggs, 257 F. Supp. 3d at 1260.
545
Id. at 1251 (internal citation and quotation marks omitted).
546
Id. (citing Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)).
547
Id. at 1251-52 (quoting Rogers v. Evans, 792 F.2d 1052, 1058-59 (11th Cir. 1986)).
540
Page 95 of 104
to infer subjective deliberate indifference.”548 Deliberate indifference may also be
“demonstrated straightforwardly, through direct evidence that an administrator was aware
of serious systemic deficiencies and failed to correct them.”549
The “long duration” of unconstitutional conditions can also demonstrate
correctional officials’ knowledge of the deficiencies that cause a substantial risk of
harm.550
Thus, if Plaintiffs show that a substantial risk of unreasonable harm was
“longstanding, pervasive, well-documented, or expressly noted by prison officials in the
past” and that “the circumstances suggest that the [prison officials] . . . had been exposed
to information concerning the risk . . . , then such evidence could be sufficient to permit a
trier of fact to find that the defendant-official had actual knowledge of the risk.”551
Applying the law to the findings of fact set forth above, and considering only
evidence during the remedy phase period, the Court concludes as a matter of law that
Plaintiffs have carried their burden of demonstrating that most of the systemic
unconstitutional and/or discriminatory practices at LSP persist such that injunctive relief
is necessary. The Court finds that Defendants have been continuously deliberately
indifferent to the serious medical needs of Plaintiffs in failing to address and/or correct
known deficiencies; Defendants have continuously acted with deliberate indifference
toward the standards of care “within modern and prudent professional standards” by
delaying or denying access to medical attention to serious and urgent medical needs of
inmates.552 As discussed at length above, the record is replete with instances showing
548
Dunn v. Dunn, 219 F. Supp.3d 1100, 1129 (M.D. Ala. 2016).
Id.
550
Alberti v. Sheriff of Harris Cty., 937 F.2d 984, 998 (5th Cir. 1991).
551
Farmer, 511 U.S. at 842-43; see also Williams, 547 F.2d at 1216 (concluding that the Eighth Amendment
may be violated on a showing of “evidence of rampant and not isolated deficiencies”).
552
Morales Feliciano v. Rossello Gonzales, 13 F.Supp.2d 151, 208 (D. P.R. 1998).
549
Page 96 of 104
failure by Defendants to take the necessary steps to provide access or avoid delay in
access to medical and health care.
Specifically, the trial testimony and evidence demonstrate constitutionally
inadequate care and/or access to care as it relates to the following: providing timely and
adequate access to clinical care (including sick call and medication management),
inpatient/infirmary care, emergency care, and specialty care. The continued deficient
medical leadership, administration, and organizational structure underpins the
constitutionally deficient system of healthcare. As set forth in the Court’s Findings of Fact,
the remedy trial evidence satisfies both the objective and subjective standards for
deliberate indifference.
B.
ADA/RA
Although “the ADA ‘does not require prisons to provide new services or programs
for disabled prisoners,’ these same entities ‘do have an affirmative obligation to make
reasonable modifications . . . so that a disabled prisoner can have meaningful access to
existing public services or programs.’”553
Further, “the Fifth Circuit has held that a
defendant’s failure to make the reasonable modifications necessary to adjust for the
unique needs of disabled persons can constitute intentional discrimination under the
ADA.”554
A public entity may fulfill this programmatic access mandate by constructing new
facilities or altering its existing facilities to bring them into compliance with the accessibility
553
George v. Louisiana Department of Public Safety and Corrections, No. 3:14-00338-JWD-EWD, 2016
WL 3568109 at *9 (M.D. La. June 23, 2016)(quoting Borum v. Swisher Cnty., No. 2:14-CV-127-J, 2015
U.S. Dist. LEXIS 8628, at *21, 2015 WL 327508, at *9 (N.D. Tex. Jan. 26, 2015)).
554
Id. (citing e.g., Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 672 (5th Cir. 2004); Garrett v. Thaler,
560 F. App’x 375, 382 (5th Cir. 2014)).
Page 97 of 104
requirements of Section 35.151 or through alternative methods such as “redesign or
acquisition of equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, [or] delivery of services at alternate accessible
sites.”555 It is true that “a public entity may comply with Title II by adopting a variety of
less costly measures, including . . . assigning aides to assist persons with disabilities in
accessing services. Only if these measures are ineffective in achieving accessibility is
the public entity required to make reasonable structural changes.”556 And further, courts
must be “sensitive to the fact that prisons are unique environments with heightened
security and safety concerns.”557 However, where there is no evidence to conclude that
such methods are shown to ameliorate barriers presented by structural deficiencies,
alterations must be made.558
The evidence in this case demonstrates that, even after moving most disabled
inmates to the Ash dorms, there remain structural barriers both within the dorms and on
the campus of LSP that are not entirely ameliorated by the use of “walkers” or orderlies.
Part of the Court’s injunctive relief will include the appointment of a monitor to determine
what structural barriers have not been effectively ameliorated by alternate means of
access.
Further, although efforts have been made to increase staffing in the
infirmary/nursing units, evidence shows that inmate orderlies continue to do far more than
is within the scope of their duties and knowledge, and they continue to “fill the gap” due
to medical staff shortages. The regularity and sufficiency of the ADA training provided to
555
28 C.F.R. § 35.150(b)(1).
Garrett v. Thaler, 560 F. App’x 375, 382 (5th Cir. 2014)(internal citations and quotations omitted).
557
Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 75 (2d Cir. 2016)(citing Pierce v. Cty. of Orange, 526
F.3d 1190, 1216–17 (9th Cir. 2008)).
558
Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008).
556
Page 98 of 104
inmate orderlies were not established, and a serious lack of supervision of the inmate
orderlies by medical staff persists.
Based on the Court’s factual findings above, LSP’s methods of administration
violate continue to violate the ADA and RA by failing to provide adequate access and
accommodations to its disabled inmates due to neglect and/or failure to follow both Title
II’s implementing regulations and some of LSP’s own ADA Directives.
“A public entity
may not . . . utilize criteria or methods of administration . . . [t]hat have the purpose or
effect of defeating or substantially impairing accomplishment of the objectives of the
public entity’s program with respect to individuals with disabilities.”559 “In other words, a
public entity cannot actively undercut the ability of a public program to benefit those with
disabilities.”560 While some of the faces of leadership at LSP have changed, the evidence
demonstrates, and Defendants often concede, that none of their ADA policies and
procedures have been changed since the liability ruling. LSP’s ADA compliance
leadership has not been equipped to address the systemic ADA/RA deficiencies.561
More troubling, in response to the liability ruling, LSP watered down its ADA
training policies for staff and, rather than comply, it removed altogether certain LSP ADA
directives. The ADA tracking database is unchanged; there remain conflicts between
QA/QI and the ADA database regarding the number of, and resolution of, accommodation
requests; training slides are confusing in training LSP leadership and employees
regarding how a disabled inmate must request an accommodation; evidence shows that
accommodations continue to be denied without reason or analysis; and disabled inmates
559
28 C.F.R. § 35.130(b)(3)(ii).
Van Velzor v. City of Burleson, 43 F.Supp.3d 746, 752 (N.D. Tex. 2014).
561
See Finding of Fact No. 24.
560
Page 99 of 104
are still inexplicably forced to perform tasks of which they are physically incapable or left
to fend for themselves when medical assistance is clearly warranted.
As one court explained, “failure to make reasonable accommodations to the needs
of a disabled prisoner may have the effect of discriminating against that prisoner because
the lack of an accommodation may cause the disabled prisoner to suffer more pain and
punishment than non-disabled prisoners.”562 In fact, “where the defendant otherwise had
knowledge of the individual’s disability and needs but took no action,” not even the
failure to expressly request a specific accommodation (or modification) fatally
undermines an ADA claim.563
The law does not require, nor is the Court suggesting, that LSP must
accommodate every request of a disabled inmate. Additionally, it is well-established that
“[t]he ADA provides for reasonable accommodation, not preferred accommodation. The
accommodation of the inmate’s disability need not be ideal; instead, it need only be
reasonable and effective. Further, a correctional facility is afforded deference in its
determination of an appropriate accommodation.”564 Nevertheless, “the ADA invariably
requires ‘a fact-specific, case-by-case inquiry that considers, among other factors, the
effectiveness of . . . [a possible] modification in light of the nature of the disability in
question.’565 As another appellate court said, an ADA or RA case frequently rides upon
562
McCoy v. Tex. Dep't of Crim. Justice, No. C-05-370, 2006 WL 2331055, at *7 (S.D. Tex. Aug. 9, 2006);
see also United States v. Georgia, 546 U.S. 151, 157 (2006).
563
Greer v. Richardson Indep. Sch. Dist., 472 F.App’x 287, 296 (5th Cir. 2012); see also Borum v. Swisher
Cty., No. 2:14-CV-127-J, 2015 WL 327508, at *9 (N.D. Tex. Jan. 26, 2015); Hinojosa v. Livingston, 994 F.
Supp. 2d 840, 843–44 (S.D. Tex. 2014).
564
Arce v. Louisiana, 226 F. Supp. 3d 643, 651 (E.D. La. 2016)(internal citations and quotation marks
omitted).
565
Mealey v. Gautreaux, No. 16-716-JWD-RLB, 2020 WL 515853, *9 (M.D. La. Jan. 3, 2020)(quoting
Staron v. McDonald's Corp., 51 F.3d 353, 356 (2d Cir. 1995); e.g., cf., Henderson v. Ford Motor Co., 403
F.3d 1026 (8th Cir. 2005) (employment discrimination under the ADA).
Page 100 of 104
‘resolution of . . . complicated, fact-intensive inquiries.’”566
Certainly, LSP has the authority to determine whether an accommodation is
appropriate at all and, if so, what accommodation is reasonable when balanced against
the security and other interests of the prison. However, the evidence shows that LSP
generally denies accommodation requests without serious investigation, particularly
regarding black box restraints. The problem is not that LSP utilizes black boxes to
transport disabled patients; rather, the problem is that there is no evidence that LSP is
considering each accommodation request on a case-by-case basis as required by the
ADA.
Evidence also establishes that LSP continuously fails to consider the need for
accommodations in applying discipline to disabled inmates. While “[m]aintenance of
prison security is a legitimate function of prison officials, who must be accorded broad
discretion in that function,”567 a prison must evaluate a disabled inmate’s needs and the
accommodations necessary to ensure reasonable access to prison services, and failure
to do so violates the ADA and RA as a matter of law.568 This obligation to provide
accommodations applies to the discipline of disabled inmates, as well: “A failure to
provide a reasonable accommodation can occur where a correctional officer could have
used less force or no force during the performance of his or her penological duties with
566
Id. (quoting R.K. ex rel J.K. v. Bd. of Educ. of Scott Cnty., Ky., 494 F. App'x 589, 597 (6th Cir. 2012)).
Williamson v. Larpenter, No. 19-254, 2019 WL 3719761, at *12 (E.D. La. July 15, 2019)(citing
Waganfeald v. Gusman, 674 F.3d 475, 485 (5th Cir. 2012), petition for cert. filed, 81 U.S.L.W. 3064 (U.S.
July 18, 2012) (No. 12-85) (citing Whitley v. Albers, 475 U.S. 312, 322 (1986); Bell v. Wolfish, 441 U.S.
520, 546–47 (1979))(“[S]ecurity considerations are peculiarly within the province and professional expertise
of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials
have exaggerated their response to these considerations, courts should ordinarily defer to their expert
judgment in such matters.”) (quotation omitted)).
568
Pierce v. District of Columbia, 128 F.Supp.3d 250, 271–72 (D.D.C. 2015).
567
Page 101 of 104
respect to a disabled person. A failure to provide a reasonable accommodation, or
discrimination by reason of disability, constitutes a violation of the ADA.”569
Actions like assigning wheelchair-bound disabled inmates to top bunks while in
disciplinary segregation is unquestionably a failure to accommodate in applying discipline,
yet Falgout made clear that there is no intention at LSP to change its policies, procedures
or practices in disciplining disabled inmates. Although there is an appeal process to
challenge particular disciplinary actions, it appears broken or unutilized.
With the exception of exclusionary policies in duty status/work assignments, the
Court finds that all of the ADA violations identified by the Court in the liability ruling persist
at LSP with no indication, except for the purported future partnership with Accessology,
that changes are planned or thought to be necessary.
C. Remedy
The Prison Litigation Reform Act (PLRA) allows a federal court to order injunctive
relief to remedy a constitutional violation “with respect to prison conditions,” but the
injunctive relief fashioned “shall extend no further than necessary to correct the violation
of the Federal right of a particular plaintiff or plaintiffs.”570 Additionally, the Court must find
that the injunctive relief “is narrowly drawn, extends no further than necessary to correct
the violation of the Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right.”571 Further, the Court must “give substantial weight to any
adverse impact on public safety or the operation of a criminal justice system caused by
the relief,”572 but “[c]ourts may not allow constitutional violations to continue simply
569
Armstrong v. Newsom, No. 94-cv-02307 CW, 2021 WL 933106, at *3 (N.D. Cal. Mar. 11, 2021).
18 U.S.C. § 3626(a)(1)(A).
571
Id.
572
Id.
570
Page 102 of 104
because a remedy would involve intrusion into the realm of prison administration.”573
Although “plaintiffs are not entitled to the most effective available remedy[,] they are
entitled to a remedy that eliminates the constitutional injury.”574
The attitudes of those in medical leadership at the DOC and LSP easily
demonstrate that injunctive relief is required in this case. The court in Madrid v. Gomez
found a need for injunctive relief in a prison setting based in large part on the attitudes
and conduct of prison leadership:
Our assessment of defendants’ current attitudes and conduct only
reinforces our view that injunctive relief is not only appropriate in this case,
but perhaps “indispensable, if constitutional dictates—not to mention
considerations of basic humanity—are to be observed in the prison [ ].”
Stone, 968 F.2d at 861. Throughout this litigation, defendants have shown
no indication that they are committed to finding permanent solutions to
problems of serious constitutional dimension. On the contrary, defendants
have expended most of their energies attempting to deny or explain away
the evidence of such problems. Even when defendants modify certain
policies (as they have done in the use-of-force area), they do not argue that
such changes evidence an intent to address the problems raised by this
complaint; rather, defendants typically assert that they were precipitated by
unrelated matters.575
The same could be said of the LSP Defendants. The Court’s liability ruling appears to
have been dismissed out of hand by Dr. Lavespere and Dr. Toce. They claim of many
unconstitutional aspects of healthcare that nothing is wrong with their policies and
procedures. Several new leaders at LSP have never seen the liability ruling, nor do they
have any idea what specific aspects of healthcare at LSP must be remedied. In the rare
instances that Defendants concede necessary changes, evidence suggests that they
have taken a “band-aid” approach to remedies. Such changes do not prevent the Court
573
Brown v. Plata, 563 U.S. at 511.
Ball v. LeBlanc, 792 F.3d 584, 599 (5th Cir. 2015)(citing Westefer v. Neal, 682 F.3d 679, 683–84 (7th
Cir.2012)).
575
889 F.Supp. 1146, 1281 (N.D. Cal. 1995)(footnotes omitted).
574
Page 103 of 104
from ordering injunctive relief because “[c]hanges made by defendants after suit is filed
do not remove the necessity for injunctive relief, for practices may be reinstated as swiftly
as they were suspended.”576 Moreover, a defendant’s assurance that it is “already on the
path towards compliance is insufficient to moot the issue.”577
Accordingly, the Court will enter Permanent Injunctive relief by separate order.
VI.
CONCLUSION
For the reasons set forth above, The Court finds that Plaintiffs have established
their entitlement to permanent injunctive relief by a preponderance of the evidence. The
Court will enter judgment in favor of Plaintiffs and against Defendants.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 6th day of November, 2023.
S
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
576
577
Gates v. Collier, 501 F.2d 1291, 1321 (5th Cir. 1974).
Gates v. Cook, 376 F.3d at 342–43.
Page 104 of 104
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