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PLATA v. SCHWARZENEGGER

October 3, 2005.

MARCIANO PLATA, et al., Plaintiffs,
v.
ARNOLD SCHWARZENEGGER, et al., Defendants.



The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE APPOINTMENT OF RECEIVER
INTRODUCTION
On June 30, 2005, after six days of evidentiary hearings, this Court ruled from the bench that it would establish a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). The purpose of this written decision is to amplify upon this Court's June 30, 2005 oral ruling by providing the specific Findings of Fact and Conclusions of Law that underlay this decision, as well as to address further proceedings in this case.

By all accounts, the California prison medical care system is broken beyond repair. The harm already done in this case to California's prison inmate population could not be more grave, and the threat of future injury and death is virtually guaranteed in the absence of drastic action. The Court has given defendants every reasonable opportunity to bring its prison medical system up to constitutional standards, and it is beyond reasonable dispute that the State has failed. Indeed, it is an uncontested fact that, on average, an inmate in one of California's prisons needlessly dies every six to seven days due to constitutional deficiencies in the CDCR's medical delivery system. This statistic, awful as it is, barely provides a window into the waste of human life occurring behind California's prison walls due to the gross failures of the medical delivery system.

  It is clear to the Court that this unconscionable degree of suffering and death is sure to continue if the system is not dramatically overhauled. Decades of neglecting medical care while vastly expanding the size of the prison system has led to a state of institutional paralysis. The prison system is unable to function effectively and suffers a lack of will with respect to prisoner medical care.

  Accordingly, through the Court's oral ruling and with this Order, the Court imposes the drastic but necessary remedy of a Receivership in anticipation that a Receiver can reverse the entrenched paralysis and dysfunction and bring the delivery of health care in California prisons up to constitutional standards. Once the system is stabilized and a constitutionally adequate medical system is established, the Court will remove the Receiver and return control to the State. Progress toward that goal will be enhanced and quickened by the support of the defendants. Fortunately, the Court is confident that the leaders of the State prison system recognize the gravity of the problem and are committed to facilitating the Receivership.

  PROCEDURAL BACKGROUND

  Plaintiffs filed this class action on April 5, 2001, alleging that defendants were providing constitutionally inadequate medical care at all California state prisons.*fn1 Defendants agreed to enter into a consent decree and to implement comprehensive new medical care policies and procedures at all institutions. See June 13, 2002 Stipulation for Injunctive Relief. The Stipulated Injunction provides in part: "The Court shall have the power to enforce the Stipulation through specific performance and all other remedies permitted by law." It also provides that it "shall be binding upon, and faithfully kept, observed, performed and be enforceable by and against the parties." Id. at 14. Defendants also agreed to the court appointment of medical and nursing experts to assist with the remedial process. See June 13, 2002 Order Appointing Experts.

  Defendants were ordered to implement new policies and procedures on a staggered basis, with seven prisons to complete implementation in 2003, and five additional prisons for each succeeding year until state-wide compliance is achieved. The Court Experts submitted a report on July 16, 2004 which found an "emerging pattern of inadequate and seriously deficient physician quality in CDC facilities." July 16, 2004 Report (part 2) at 1. In response, defendants agreed to address the very serious issues identified in the report through a Stipulated Order re Quality of Patient Care and Staffing, which this Court approved on September 17, 2004 ("Patient Care Order"). The Patient Care Order required defendants to engage an independent entity to (a) evaluate the competency of physicians employed by the CDCR and (b) provide training to those physicians found to be deficient. It also required defendants to undertake certain measures with respect to the treatment of high-risk patients, to develop proposals regarding physician and nursing classifications and supervision, and to fund and fill Quality Management Assistance Teams ("QMAT") and other support positions. Defendants failed to come close to meeting the terms of the Patient Care Order, even with generous extensions of time from the Court.

  On May 10, 2005, this Court issued an Order to Show Cause ("OSC") as to (1) why a Receiver should not be appointed to manage health care delivery for the CDCR until defendants prove that they are capable and willing to do so without Court intervention, and (2) why defendants should not be held in civil contempt of this Court's prior orders. On May 31, and June 1-2 and 7-9, 2005, the Court conducted an evidentiary hearing in which the parties presented evidence relating to the OSC. That evidence took the form of testimony from the Court Experts, state employees in positions critical to the prison medical system, and the state's medical consultant, as well as eighty-two exhibits. On May 17 and June 1, 2005, the Court received correspondence from the president of the Service Employees International Union ("SEIU") Local 1000, on behalf of SEIU and other unions representing state prison medical personnel, asking to participate in the evidentiary hearings. The Court responded by inviting the unions to submit an amicus brief.

  The parties subsequently submitted legal briefs addressing the issues of contempt and Receivership in light of the evidence elicited at the hearing, and the unions filed an amicus brief. On June 30, 2005 the Court held a hearing on the OSC. Based on the arguments of counsel, the evidence presented, the full record in this case, and the Court's own observations on prison tours, the Court delivered an oral ruling at the conclusion of the hearing that it would take control of the medical delivery system of the CDCR and place it under the auspices of a Receivership. This Order is consistent with that ruling and provides a full discussion of the Court's findings of fact and conclusions of law.

  FINDINGS OF FACT

  A. Background

  1. Over the past 25 years, the California correctional system has undergone a vast expansion in size and complexity. Ex. 42 at 1 (Governor's Reorganization Plan 2 — "A Government for the People for a Change: Reforming California's Youth and Adult Correctional System"). Since 1980, the inmate population has grown well over 500 percent and the number of institutions has nearly tripled from 12 to 33. Id. Currently, the CDCR has approximately 164,000 inmates, 114,000 parolees, and 45,200 employees. Id. at 1, 3.

  2. Defendants concede that this rapid growth of the correctional system was not accompanied by organizational restructuring to meet increasing system demands and that it requires fundamental reform in a variety of areas, including management structure, information technology and health care services in order to function effectively and in compliance with basic constitutional standards. Id. at 6-7.

  3. A prevailing lack of accountability within California's struggling correctional system has resulted in a failure to correct basic problems and an increase in tell-tale signs of dysfunction. Id. at 5. The CDCR has functioned for years under a decentralized structure in which individual wardens wielded extensive independent authority in determining prison standards and operating procedures. Id. These "operational silos" resulted in a lack of accountability and responsibility among the various institutions. Id.

  4. In the area of health care services, the consequences of system expansion without reform have been shocking. The Department's annual health care budget has risen to over $1 billion. Ex. 41 at 103 (06/04 "Reforming Corrections" — Report of the Corrections Independent Review Panel, Chapter 6 — Risk Management and Care). The CDCR's spending on health care is so poorly managed, however, that this increase in budget has been tantamount to throwing good (taxpayer) money after bad.

  B. Defendants' Failure to Provide Constitutionally Adequate Medical Care has Caused Plaintiffs Extreme Harm

  5. As required by the Court's June 13, 2002 Stipulation for Injunctive Relief, the Court's Medical Experts visited nine prisons that had begun implementation of the Inmate Medical Policies and Procedures. Reporter's Transcript of Evidentiary Hearing ("RT") 263:9-14 (LaMarre); RT 28:19-22 (Puisis); RT 339:11-340:10 (Goldenson). As set forth in their reports, the Experts concluded that defendants' failure to implement the required remedies had the effect of placing CDCR prisoners at serious risk of harm or death. See, e.g., Exs. 51-64 and 95 (reports by Court Experts regarding conditions in various prisons). The extensive and disturbing findings of the Expert's reports are essentially uncontested, and the Court finds that they accurately describe an extreme crisis in CDCR's medical delivery system.

  (1) Lack of Medical Leadership

  6. The leaders of the CDCR medical system lack the capability and resources necessary to deliver adequate health care, much less fix the abysmal system that now exists. Dr. Rene Kanan, Acting Director of Health Care Services for the CDCR, testified that the CDCR lacks an adequate system to manage and supervise medical care, both in the central office and at nearly all of its prisons. RT 572:1-5 (Kanan). 7. Indeed, Undersecretary of Corrections Kevin Carruth testified that medical care simply is not a priority within the CDCR, is not considered a "core competency" of the Department, and is "not the business of the CDC, and it never will be the business of the Department of Corrections to provide medical care." RT 554:4-15. Mr. Carruth could not even estimate when significant improvements to the system might be made if the State were left to its own devises. RT 549:1-4 (Carruth); RT 571:11-22 (Kanan).

  8. In order to implement medical care policy, Dr. Kanan must seek assistance from non-medical administrators with higher authority. RT 727:22-729:7 (Rougeux). To make matters worse, many prison medical staff believe that the warden is their "real boss" even though organization charts indicate that medical staff report to Dr. Kanan. RT 243:3-16 (Puisis). The Court finds, as defendants' own expert consultant Dr. Ronald Shansky testified, that the Deputy Director is inhibited "internally, organizationally," and in her dealings with external governmental organizations to implement Court Orders because the Deputy Director lacks the perceived and ultimate authority over the health care program. RT 671:14-672:15 (Shansky).

  9. Furthermore, central office staff do not have the tools they need to handle the vast quantity of information necessary to manage a billion dollar, 164,000 inmate system. RT 545:8-546:10 (Carruth). Data management, which is essential to managing a large health care system safely and efficiently, is practically non-existent. RT 138:8-139:4; 140:3-9 (Puisis). The CDCR's system for managing appointments and tracking follow-up does not work. RT 140:12-24 (Puisis). These data management failures mean that central office staff cannot find and fix systemic failures or inefficiencies. As just one of innumerable examples, there are patients in the general prison population who need specialized housing, but the CDCR does not track them and headquarters staff is unaware of how many specialized beds are needed. Ex. 48 at 4.

  10. The CDCR is aware of the actions required to improve the prison health care system, but its leaders have not been able to address issues requiring systemic change. RT 390:19-391:22 (Goldenson), RT 152:23-154:5 (Puisis). For example, although the Experts noted repeatedly in reports to the CDCR headquarters staff that the health care delivery system in San Quentin posed "a risk of imminent harm and death to patients," it took a year for the CDCR to take notice, due in part to a "lack of resource capacity in the Health Care Services Division to address problems at multiple sites." Ex. 56 at 1 (04/09/05 Expert LaMarre's Report on San Quentin State Prison from February 7-8, 2005 Visit). Dr. Kanan frankly testified that the CDCR lacks an adequate system to manage and supervise medical care. RT 572:1-5 (Kanan).

  11. The State reorganized the prison system into a new organizational structure effective July 1, 2005. Ex 86 (Department of Corrections and Rehabilitation Organization Chart). While the new structure holds promise for some improvements in the Department, it fails to provide sufficient authority to the medical leadership, and may well exacerbate the problems that currently exist. RT 677:8-14 (Shansky). The highest ranking health care operations director is several levels down from the Secretary in the organizational hierarchy, and thus does not have sufficient authority. RT 670:11-19 (Shansky); RT 149:18-152:1 (Puisis). The new organization also splits health care operations and policy, thereby creating unnecessary room for conflict and inefficiency. RT 677:15-23 (Shansky).

  12. The Court finds that the CDCR leadership simply has been — and presently is — incapable of successfully implementing systemic change or completing even minimal goals toward the design and implementation of a functional medical delivery system.

  (2) Lack of Qualified Medical Staff

  a. Medical Administrators

  13. Of the higher level management positions in the CDCR's Health Care Services Division, 80% are vacant, making effective supervision or management impossible. RT 572:6-8 (Kanan); RT 543:10-16 (Carruth). This is akin to having a professional baseball team with only a relief pitcher and no infielders.

  14. Furthermore, the CDCR has not hired regional medical directors as ordered. RT 392:20-25 (Goldenson). These regional medical directors are needed to provide supervision of medical staff at the institutional level. RT 93:11-94:17 (Puisis). Court Expert Goldenson accurately described the absence of regional management, coupled with incompetent prison staff, as resulting in "the blind leading the blind." RT 387:21-388:10 (Goldenson).

  15. There also is no central office leadership in nursing. This makes it difficult to initiate and ensure compliance with nursing policy and practice. Ex. 48 at 6 (07/09/04 Plata Experts' Second Report, Part One); RT 270:1-17 (LaMarre). Moreover, there is a severe shortage of nursing supervisors at the prisons. RT 274:12-19 (LaMarre).

  b. Physicians

  16. The CDCR sorely lacks sufficient qualified physicians to provide adequate patient care to prisoners. While there certainly are some competent and dedicated doctors working within the system, they are unable to service even a fraction of the entire prisoner population. RT 682:14-22 (Shanksy). Many other CDCR physicians are inadequately trained and poorly qualified as, for many years, CDCR did not have appropriate criteria for selecting and hiring doctors. RT 669:4-17 (Shansky). Dr. Shansky testified that historically the CDCR would hire any doctor who had "a license, a pulse and a pair of shoes." RT 669:7-9 (Shanksy). According to Dr. Puisis, 20-50% of physicians at the prisons provide poor quality of care. RT 51:17-19 (Puisis). Many of the CDCR physicians have prior criminal charges, have had privileges revoked from hospitals, or have mental health related problems. Ex. 49 at 3 (07/16/04 Plata Experts' Second Report, Part Two); Ex. 54 at 1 (03/17/05 Email from Expert Puisis re: Visit to Substance Abuse Treatment Facility State Prison ("SATF")). An August 2004 survey by CDCR's Health Care Services Division showed that approximately 20 percent of the CDCR physicians had a record of an adverse report on the National Practitioner Databank, had a malpractice settlement, had their license restricted, or had been put on probation by the Medical Board of California. RT 580:1-7 (Kanan). The Court Experts testified that the care provided by such doctors repeatedly harms prisoner patients. RT 350:18-355:21 (Goldenson); RT 51:12-13 (Puisis). The Court finds that the incompetence and indifference of these CDCR physicians has directly resulted in an unacceptably high rate of patient death and morbidity. 17. Inadequate medical care in CDCR is due not merely to incompetence but, at times, to unprecedented gross negligence. RT 366:25-367:4 (Goldenson). Indeed, the evidence from multiple sources establishes that medical care too often sinks below gross negligence to outright cruelty. Ex. 54 at 1; RT 74:6-75:8 (Puisis).

  18. The Court will give just a few representative examples from the testimonial and documentary evidence. In one instance, a prisoner reported a two to three week history of fever and chills and requested care. RT 346:9-10 (Goldenson). The prisoner repeatedly visited medical staff with an increasingly serious heart condition but was consistently sent back to his housing unit. RT 347:1-19 (Goldenson). Eventually, the patient received a correct diagnosis of endocarditis, a potentially fatal heart condition treatable with antibiotics, but did not get appropriate medication. Id. Finally, the prisoner went to the prison emergency room with very low blood pressure, a high fever and cyanotic (blue) fingertips, indications of seriously deficient blood flow and probable shock. RT 347:20-25; 350:3-10 (Goldenson). Despite the objections of a nurse who recognized the severity of the prisoner's condition, the physician attempted to return the patient to his housing unit without treatment. RT 348:1-5 (Goldenson). Rather than being sent to a community hospital emergency room for immediate treatment, as would have been appropriate, the patient was sent to the prison's Outpatient Housing Unit for observation. RT 348:7-12 (Goldenson). He died shortly thereafter from cardiac arrest. Id. Dr. Goldenson found that this course of treatment was "the most reckless and grossly negligent behavior [he had] ever seen by a physician." RT 350:21-24; Ex. 80 at 4 (10/09/04 Investigation into Patient Death).

  19. In another example, a prisoner repeatedly requested to see a doctor regarding acute abdominal and chest pains; the triage nurse canceled the medical appointment, thinking the prisoner was faking illness. RT 63:10-20 (Puisis). When the prisoner requested transfer to another prison for treatment, his doctor refused the request without conducting an examination. RT 63:21-24 (Puisis). A doctor did see the prisoner a few weeks later but refused to examine him because the prisoner had arrived with a self-diagnosis and the doctor found this unacceptable. RT 63:25-64:7 (Puisis); Ex. 54 at 1. The prisoner died two weeks later. RT 64:11-12 (Puisis). Sixty-two grievances had been filed against that same physician, but when interviewed by the Court Expert, the physician advised that most of the prisoners she examined had no medical problems and were simply trying to take advantage of the medical care system. Ex. 54 at 1.

  20. In a further example, in 2004 a San Quentin prisoner with hypertension, diabetes and renal failure was prescribed two different medications that actually served to exacerbate his renal failure. RT 64:13-19 (Puisis). An optometrist noted the patient's retinal bleeding due to very high blood pressure and referred him for immediate evaluation, but this evaluation never took place. RT 65:3-7 (Puisis). It was not until a year later that the patient's renal failure was recognized, at which point he was referred to a nephrologist on an urgent basis; he should have been seen by the specialist within 14 days but the consultation never happened and the patient died three months later. RT 64:22-65:4 (Puisis). Dr. Puisis testified that "it was like watching the natural history of high blood pressure turn into chronic renal failure somewhat similar to the Tuskegee experiment." RT 65:8-14 (Puisis).

  21. Defendants have made some efforts to identify and remove from patient care those practitioners believed to be providing substandard care; in 2004, twelve such doctors were removed. RT 595:10-21 (Kanan). The Quality In Corrections Medical ("QICM") program, developed in conjunction with the Court Experts, Dr. Kanan, Dr. Shansky, and the University of California at San Diego ("UCSD"), seeks to evaluate the work of identified CDCR physicians in order to improve and assure physician quality. RT 606:25-609:6 (Kanan). However, QICM has encountered considerable obstacles to implementation and as of yet has not satisfactorily addressed the problems of incompetence and indifference. RT 539:7-13.

  (I) Death Reviews

  22. Death reviews provide a mechanism for medical delivery systems to identify and correct problems. RT 37:7-11 (Puisis); RT 367:10-17 (Goldenson). These reviews should determine whether there has been a gross deviation from the adequate provision of care and whether the death was preventable. RT 342:14-344:20 (Goldenson). These reviews should be conducted even when death is expected, such as with a terminal condition, to determine if appropriate care has been provided. Id.; see also RT 587:2-7 (Kanan).

  23. Expert review of prisoner deaths in the CDCR shows repeated gross departures from even minimal standards of care.*fn2 In 2004, the Court Experts and Dr. Shansky reviewed approximately 193 deaths, the majority from August 2003 to August 2004. These death reviews were the result of an Order of this Court after CDCR failed to perform the death reviews independently. RT 38:10-21 (Puisis); see also Ex. 34 (Report on death reviews conducted by Drs. Puisis, Goldenson, and Shansky in December 2004). These were only a portion of the backlogged death review cases. RT 38:22-24 and 195:12-17 (Puisis); see also 370:1-7 (Goldenson).

  24. The Court Experts concluded, and the Court finds, that thirty-four of the deaths were serious and probably preventible. RT 42:21-24 (Puisis). CDCR sent these thirty-four cases to physicians at UCSD for review. RT 370:22-371:1 (Goldenson). On May 31, 2005, the UCSD physicians provided reviews for 23 cases. RT 356:10-13 and 371:10-14 (Goldenson). In twenty cases, the UCSD physicians found serious errors that contributed to death. RT 372:2-9 (Goldenson); see also Ex. 84 (UCSD Physician Assessment and Clinical Education Program Review of CDC Death Records). The conclusions of the UCSD physicians confirmed that the medical care provided by the prison medical staff prior to the inmates' deaths was well below even minimal standards of care. Ex. 84. The reviewing physicians used the following language to describe some of their conclusions: "a gross" departure from the standard of care (Ex. 84, Case A at 2); "standard of care definitely not met" (Ex. 84, Case D at 17); "a number of deviations" and "a severe systemic problem" (Ex. 84, Case F at 24); "a gross departure" and "treatment . . . far below the standard" (Ex. 84, Case I at 32); "the corrections medical system failed the patient" and the inmate "died of what quite likely was a preventible process" (Ex. 84, Case K at 39 & 41); "an egregious deviation" (Ex. 84, Case Q at 59; Case X at 85); "a fatal omission" and "a gross deviation" (Ex. 84, Case U at 74); "multiple gross deviations" (Ex. 84, Case W at 83). A Court Expert also testified: "You would not expect? one death like this in a relatively large-sized facility for years. As an example, if I took one of the most problematic deaths that we reviewed, I don't think I saw one of these in my entire 20 years" experience in managing prison facilities. RT 44:7-13 (Puisis); RT 350:18-351:4 (deaths were the result of the "most reckless and grossly negligent behavior" he has ever seen) (Goldenson).

  25. The Court will provide just one of many examples to illustrate the problems revealed by the death reviews. An inmate arrived at 4:30 a.m. at the prison infirmary due to complaints of shortness of breath and tiredness. Ex. 84, Case W at 2-3. About a week prior, the inmate had reportedly been swollen all over with a blood pressure of 150/126 and a heart rate of 100. The night before his death the inmate had been brought to the infirmary for very similar complaints. Id. The following morning at 6:00 a.m., the nurse and physician determined that further care was unnecessary at that time and released the inmate from the infirmary. Id. On his return to the transport van, the inmate began staggering, went down on his hands and knees and went prone. Id. As the inmate was helped into the van, a medical provider told a correctional officer that the inmate "was fine and just needed sleep." Id. When the inmate arrived at his housing unit fifteen minutes later, he stumbled out of the van, went down on his hands and knees, then went prone and became unresponsive. Id. By 6:30 a.m., the inmate had no vital signs, and at 7:02 a.m. he was pronounced dead. Id. The UCSD physicians determined that there were "multiple gross deviations from the standard of care" in this case, including an inadequate monitoring of the inmate's diabetes and hypertension in the years before his death, a lack of concern for high blood pressure readings in the days and weeks before his death, the lack of a personal physician's evaluation of the inmate when he came to the infirmary, and the failure to diagnose or treat the congestive heart failure from which the inmate presumably died. Ex. 84, Case 22 at 3.

  26. The Court Experts have made even further findings based on their reviews of additional death records beyond those sent to UCSD. In March 2005, a Court Expert reviewed the death files of ten prisoners at SATF prison and determined that at least seven deaths were preventible, and two more might have been preventible. Ex. 54 at 2. The Court Expert concluded that the care provided in most of the cases constituted medical incompetence. Id.

  27. In February 2005, the Court Experts made similar conclusions regarding the review of ten deaths at San Quentin; most of the deaths had been preventible. Ex. 55 at 13. The Court adopts these uncontested expert findings regarding preventible deaths.

  28. All of this information led Dr. Puisis to the uncontested conclusion, as referenced in the Introduction, that on average, every six to seven days one prisoner dies unnecessarily. RT 44:2-18, 86:8-13 (Puisis) ("based on estimates of deaths, there is probably one to two preventible deaths per site per year.").

  (ii) Morbidity

  29. The lack of adequate care in prisons also has resulted in a significant degree of morbidity to inmate-patients. RT 86:7-13 (Puisis); 372:14-373:14 (Goldenson). Morbidity is defined as any significant injury, harm or medical complication that falls short of death. RT 31:1-5 (Puisis).

  30. In one instance, a physician's cruelty may have caused a prisoner to suffer paralysis. RT 74:6-75:8 (Puisis). The prisoner arrived at the clinic after a fight and was unable to move his legs. Id. As the patient had sustained a neck injury, the medical staff should have immobilized his neck to prevent further injury. Id. When the patient failed to respond as the doctor stuck needles in his legs, the doctor said that the patient was faking, and moved his neck from side to side, paralyzing the patient, assuming he was not already paralyzed. Id. Dr. Puisis termed his actions "fairly amazing" and cruel. Id. 31. In addition, the CDCR has a significant number of preventable acute care hospitalizations. RT 161:7-20 (Puisis). Due to the lack of appropriate care, the health of high risk chronic care patients is particularly compromised, and though such care may not lead to death, lives are markedly shortened. RT 372:14-373:2 (Goldenson). Considering the general risk to patients due to inadequate medical care, the unnecessary deaths are just "the tip of the iceberg." Id.

  32. Given the Court's findings regarding inmate deaths, it should be no surprise that the Court also finds that there is an inordinately high level of morbidity among CDCR prisoners.

  c. Nurses

  33. The evidence establishes beyond a doubt that the CDCR fails to provide competent nurses to fill the needs of the prison medical care system. According to the Court's nursing Expert, Maddie LaMarre, CDCR nurses often fail to perform basic functions and refuse to carry out specific physician's orders. RT 279:16-280:6 (LaMarre). She also found that a number of nurses were not even certified in basic CPR. Ex. 53 at 10 (02/28/05 Expert LaMarre's Report on CSP — Sacramento from January 24-25, 2005). At certain prisons, nurses often fail to identify urgent medical issues that require immediate referral to a physician. RT 285:17-286:7 (LaMarre). Even where face-to-face triage is implemented, nurses often fail to take vital signs or conduct examinations. Ex. 56 at 4; RT 286:8-24 (LaMarre). Nurses then often fail to adequately assess patients and dispense appropriate over-the-counter medications for problems. RT 286:25-287:7 (LaMarre).

  34. Additionally, the evidence shows that those nurses who fail to perform basic duties over an extended period of time are not disciplined. Ex. 62 at 10 (05/16/05 Experts' Report on Visit to Substance Abuse Treatment Center); RT 275:7-276:7 (LaMarre).

  (3) Lack of Medical Supervision

  35. The Court finds that the lack of supervision in the prisons is a major contributor to the crisis in CDCR medical delivery.

  36. At the institutional level, there are very few managers and supervisors that are competent. RT 386:9-23. (Goldenson). Thus, it is difficult to carry out central office directives. RT 94:5-8 (Puisis). Just five or six prisons have an adequate Chief Physician and Surgeon, and only one-third of the prisons have an adequate Health Care Manager. RT 578:7-579:2 (Kanan). For example, the Experts report that San Quentin is "a completely broken system bereft of local medical leadership." Ex. 55 at 9.

  37. A large part of the problem is simply a lack of personnel and a chronic high vacancy rate. Ex. 51 at 2 (02/18/05 Expert LaMarre's Report on Salinas Valley State Prison from January 26-27, 2005 Visit); Ex. 55 at 11; Ex. 60 at 1 (05/04/05 Email from Expert Puisis re: Experts' concerns from visit to Pleasant Valley State Prison). Many line-staff, including both physicians and nurses, work without any supervision whatsoever. Ex. 39 at 5 (01/03 OIG Management Audit Review from California Substance Abuse Treatment Facility and State Prison (and supplement to report), pages 5-7, 22-38, Attachment A); Ex. 62 at 4; Ex. 63 at 2 (05/16/05 Experts' Report on Visit to California State Prison — Corcoran); Ex. 64 at 6 (Experts' Report on Visit to Pleasant Valley State Prison Miscellaneous); Ex. 95 at 2 (Email from Dr. Puisis re: Conference Call re: CSP-SAC); RT 273:18-25 (LaMarre).

  38. This lack of leadership and supervision has resulted in a failure to correct the myriad problems within the CDCR medical clinics. Ex. 51 at 2; RT 95:18-22 (Puisis). Such unaddressed problems have made the provision of adequate medical care impossible and clearly have resulted in patient deaths. Ex. 54 at 1, 2; Ex. 62 at 5; RT 285:11-286:4 (LaMarre).

  39. A further result of this non-supervision is that doctors responsible for patient death and morbidity receive little if any discipline from supervising physicians. RT 44:24-45:6 (Puisis). Beyond the obvious problem of condoning malpractice and allowing incompetent doctors to remain on staff, the leadership vacuum and lack of discipline also fosters a culture of non-accountability and non-professionalism whereby "the acceptance of degrading and humiliating conditions [becomes] routine and permissible." Ex. 55 at 11; Ex. 51 at 2. No organization can function for long when such a culture festers within it, and it has become increasingly clear to the Court that this is a major factor in the current crisis. (4) Failure to Engage in Meaningful Peer Review

  40. Peer review is the periodic review of work by similarly qualified professionals. Ex. 49 at 3; RT 136:5-7 (Puisis). For quality control and the identification of bad practitioners, peer review is performed universally by health care organizations. RT 136:8-10, 137:9-13. (Puisis). But in the CDCR, peer review "is either bogus or it's not done at all." RT 136:21-23 (Puisis).

  41. The peer review process sometimes fails because there is a paucity of qualified staff to engage in the process. Doctors with internal medicine qualifications are needed to review medical decisions, correct mistakes and provide training, but such doctors are rarely present at the institutions. Ex. 49 at 3-4. At some prisons, the doctors who engage in the peer review process are incompetent. As a result, "untrained physicians who make mistakes will continue to make them because there is no one to identify and correct their mistakes." Id.

  (5) Defendants Lack the Capacity to Recruit Qualified Personnel for Key Medical Positions

  42. The CDCR also suffers from a significant vacancy rate in critical positions within the medical care line-staff. Ex. 1 at 2 (01/09/04 Letter from QMAT Members re: San Quentin Visit on January 7, 2004); Ex. 2 at 4 (01/07/05 QMAT Process Review of San Quentin); Ex. 10 at 4 (11/04 QMAP System Review of California Correctional Institute); Ex. 18 at 1 (08/25/04 QMAP Institutional Review Weekly Report from Salinas Valley State Prison); Ex. 23 at 1 (09/03/04 QMAP Institutional Review Weekly Report from California State Prison — Sacramento); Ex. 33 at 11 (Corrective Action Plan for July 9, 2004 Letter from Court Experts, Revised 03/03/05); Ex. 41 at 113; Ex. 48 at 6-7; Ex. 51 at 2; Ex. 56 at 11; Ex. 84 at 4. The vacancy rate for physician positions is over 15%, and this does not account for the additional significant percentage of incompetent doctors who need to be replaced. RT 579:11-13 (Kanan). The rates differ from institution to institution, depending partly on the desirability of the location and the culture of the prison. At one institution, there are only two doctors responsible for approximately 7,000 prisoners. RT 643:22-644:7 (Kanan). 43. The Court finds, based on estimates by the court Experts and CDCR's consultant, that the CDCR must hire approximately 150 competent physicians to fill vacancies and replace inadequate physicians throughout the system. RT 96:9-12 (Puisis); RT 680:19-23 (Shansky).

  44. The vacancy problem also plagues the Department in all other areas of health care staffing. Vacancy rates at some institutions are as high as 80% for Registered Nurses (RNs) and 70% for Medical Technical Assistants (MTAs) (i.e. ...


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