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TODARO v. WARD

April 25, 1977

Louise TODARO et al., Plaintiffs,
v.
Benjamin WARD, Commissioner of the New York State Department of Correctional Services, et al., Defendants


Robert J. Ward, District Judge.


The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

This civil rights class action under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 challenges the delivery of medical care at the Bedford Hills Correctional Facility (hereinafter "Bedford Hills"). Plaintiffs, who represent a class consisting of all persons who are or will be confined at Bedford Hills, seek (1) a declaratory judgment that the medical care provided at Bedford Hills violates their rights under the eighth and fourteenth amendments to the United States Constitution, and (2) an injunction against future violations of their constitutional rights. Named as defendants are: the Commissioner of Correctional Services; the Assistant Commissioner for Health Services of the New York State Department of Corrections (Dr. Loudon); the Southern Regional Director of Health Services of the New York State Department of Corrections (Dr. Frost); the Superintendent of Bedford Hills; the Health Services Director of Bedford Hills (Dr. Williams); the Nurse Administrator of Bedford Hills (Ms. Daly); and a surgical consultant (Dr. Tschorn), who, prior to the arrival of a full-time Health Services Director, performed some of the functions of this position.

 Plaintiffs contend that the medical system is unconstitutionally defective in the following respects: first, admission health screening, including x-ray reports, is substantially delayed, and the admission screening procedure includes improper reliance on dangerous equipment (antiquated x-ray machine) and techniques (catheterization); second, access to primary care physicians is denied or substantially delayed as a result of the lobby clinic procedures for screening and record keeping; third, patients in sick wing endure unnecessary suffering and are subjected to undue risk of harm because inadequate facilities, especially communication facilities, result in inadequate observation of seriously ill patients; fourth, diagnostic work ordered by a physician is not done at all, or is not done within a reasonable period after being ordered, or when done there are delays in reporting the results and abnormal results are not followed up in a timely fashion; fifth, as a result of poor procedures and poor communication, follow-up medical appointments are not kept or are not scheduled; sixth, the chronically ill are inadequately monitored; seventh, as a result of failure to follow-up, inmates are given medically inappropriate work assignments; eighth, access to outside specialists is denied or delayed; and finally, access to outside consultations for elective surgery is denied or delayed.

 THE LAW

 Federal district courts, being courts of limited jurisdiction, can act upon complaints from state prisoners concerning the conditions of their confinement only when rights guaranteed by the United States Constitution are infringed. 42 U.S.C. § 1983; 28 U.S.C. § 1343(3); see Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971) (per curiam); cf. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam); Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973). In addition to this jurisdictional limitation, when a federal court is asked to intervene in the administration of a state prison, the notion of comity, or due regard for the state's sovereignty over its own internal affairs, places another constraint on the federal courts. Preiser v. Rodriguez, 411 U.S. 475, 490-92, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). Moreover, federal courts have traditionally approached prison litigation with restraint, recognizing

 
that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.
 
Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S. Ct. 1800, 1807, 40 L. Ed. 2d 224 (1974) (footnote omitted).

 Thus, federal intervention into the internal affairs of prisons has been limited and reluctant.

 However, federal courts are empowered to act whenever constitutional rights are infringed. Judicial restraint counsels caution, but not the abdication of judicial responsibility for the enforcement of constitutional rights. Procunier v. Martinez, supra at 405, 94 S. Ct. 1800.

 It cannot now be doubted that the denial of medical care to a state prisoner constitutes a violation of the eighth amendment, made applicable to the states by the fourteenth amendment. E.g., Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Bishop v. Stoneman, 508 F.2d 1224 (2d Cir. 1974); Newman v. Alabama, 503 F.2d 1320 (5th Cir.), cert. denied, 421 U.S. 948, 95 S. Ct. 1680, 44 L. Ed. 2d 102 (1974); Fitzke v. Shappell, 468 F.2d 1072 (6th Cir. 1972). It also cannot be doubted that medical care is not denied unconstitutionally by "an inadvertent failure to provide adequate medical care" or by "negligent . . . diagnosing or treating [of] a medical condition." Estelle v. Gamble, supra at 105-06, 97 S. Ct. at 292; see, e.g., Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972); United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970). Rather, the standard for determining whether there has been an unconstitutional denial of medical care is whether there has been "deliberate indifference to a prisoner's serious illness or injury." Estelle v. Gamble, supra at 105, 97 S. Ct. at 291; Corby v. Conboy, supra; see Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974); Startz v. Cullen, 468 F.2d 560, 561-62 (2d Cir. 1972); Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1202, 28 L. Ed. 2d 335 (1971).

 What constitutes deliberate indifference can be gleaned from precedent. Cases which apply this standard generally fall into two categories. First, there are those cases which have held unconstitutional denied or unreasonably delayed access to a physician for diagnosis and treatment of physical conditions which, although not life-threatening or likely to result in permanent disability, cause discomfort. For example, in Corby v. Conboy, supra, denial of access to a physician for diagnosis and treatment of an allegedly serious nasal disorder was held to state a claim. In Miller v. Carson, 401 F. Supp. 835, 878 (M.D.Fla.1975), the court found "shocking" a two-week delay in providing access to a physician for diagnosis and treatment of an earache which proved to result from an ear infection. See also Bishop v. Stoneman, supra; Fitzke v. Shappell, supra; Hughes v. Noble, 295 F.2d 495 (5th Cir. 1961).

 The second category of cases which apply the deliberate indifference standard includes those in which the treatment prescribed by a physician was not administered. In Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1202, 28 L. Ed. 2d 335 (1971), a prisoner who had undergone surgery alleged that he was removed from a hospital and returned to prison in contravention of his physician's orders that he remain lying down, moving his legs as little as possible. He further alleged that he was denied medication prescribed for his pain. The court held these allegations sufficient to state a claim of unconstitutional denial of medical care. See also Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972); Tolbert v. Eyman, 434 F.2d 625 (9th Cir. 1970); Edwards v. Duncan, 355 F.2d 993 (4th Cir. 1966); Derrickson v. Keve, 390 F. Supp. 905 (D.Del.1975).

 In summary, then, to prove an individual claim of unconstitutional denial of medical care it is necessary to show either denied or unreasonably delayed access to a physician for diagnosis or treatment of a discomfort-causing ailment, or failure to provide prescribed treatment.

 As will be detailed later, plaintiffs' proof would sustain, under the above standards, an individual's claim of unconstitutional denial of medical care. The instant case, however, involves not an individual claim for relief, but rather an institution-wide challenge to all aspects of a system of medical care delivery. Thus, the question posed by this case is at what point do individual failures in the overall operation of a prison medical care system add up to deliberate indifference which would render the entire system unconstitutional?

 The Second Circuit case of Bishop v. Stoneman, supra, involved a challenge to the medical care delivery system of an entire institution. There the court concluded that "[a] series of incidents closely related in time . . . may disclose a pattern of conduct amounting to deliberate indifference to the medical needs of prisoners," which would constitute an unconstitutional denial of medical care. 508 F.2d at 1226. Alternatively, the court held that deliberate indifference may be proven by evidence that "the medical facilities were so wholly inadequate for the prison population's needs that suffering would be inevitable." Id.

 In applying these two tests of deliberate indifference to the present case, the Bedford Hills medical care system must be evaluated in context, i.e., as a health care system within a prison. One factor which must be considered is that the prisoner, " restrained by the authority of the state, . . . cannot himself seek medical aid." Fitzke v. Shappell, supra at 1076 (emphasis in original). Consequently, "[an] inmate must rely on prison authorities to treat his medical needs;" Estelle v. Gamble, supra at 103, 97 S. Ct. at 290.

 One important consequence of this is that demands upon a prison health care system are going to be substantial. For example, Bedford Hills' inmates cannot self-treat minor ailments such as headaches, upset stomachs, or colds. Nor can they just remain in bed when they feel ill, for they are allowed only two days of room rest a month. Thus, when due to a minor ailment an inmate is not feeling well enough to carry on her daily routine, she must turn to the medical care system even though requiring no more treatment than an aspirin or a day in bed.

 Another consequence of inmate dependence is that the prison health care system must provide the full gamut of health care services, from treatment for minor, routine instances of illness to more esoteric specialty care.

 Another consideration, testified to by one of plaintiffs' experts, is that there is a higher incidence of medical problems among prisoners than in a similarly aged unincarcerated population. Indeed, one factor which repeatedly impressed the court as it reviewed plaintiffs' medical records was the extent to which Bedford Hills inmates suffered from serious medical conditions. This factor, too, influences the demand for medical services and affects the determination of what should be deemed adequate.

 On the one hand, then, the court recognizes the somewhat unique demands for medical services at Bedford Hills and appreciates the need for judicial restraint before interfering with the administration of a state prison. On the other hand, provision of essential medical care, unlike prison discipline, does not fall within the sphere of correctional concern to which great deference is due. Newman v. Alabama, supra at 1328-30.

 Against the foregoing legal background, the Court now turns to the facts of this case and the application of the constitutional standards thereto.

 BACKGROUND FACTS

 Bedford Hills, located at Bedford Hills, New York and operated by the New York State Department of Correctional Services ("the Department"), is a medium security prison for the confinement of all women prisoners who are sentenced and committed to the custody of the Department but are not on work release or committed to the facility for the criminally insane. The approximately 380 women at Bedford Hills are housed primarily in three residence buildings known as "112," "113," and "114." In addition, there is a "hospital" building, which houses some inmates, a segregation and reception building, an administration building and an industry building.

 The health services at Bedford Hills are located principally in the "hospital" building, which is within a five or six minute walk of the residences. Although known as the hospital building, it is not certified as a general hospital and defendants do not use it as such. The first floor contains the main ambulatory care clinic which consists of two physicians examining rooms, a medication station, laboratory, x-ray room, pharmacy, dentist's office, and the administrative office of the medical staff. The remainder of the first floor and the corridor of the floor above it constitutes the infirmary or "sick wing."

 The medical staff at Bedford Hills as of the time of trial consisted of eight nurses, the nurse administrator, one full-time physician, one part-time gynecologist, a laboratory technician, a part-time pharmacist, and a part-time x-ray technician. There is also a medical clerk and stenographer. The Bedford Hills medical staff is supplemented by consultants and outside hospital facilities.

 The nursing staff is the crucial link in the chain of health care delivery at Bedford Hills. The nurses run the lobby clinic, *fn1" prepare the physician appointment schedules, call patients to the clinic for doctors' appointments, conduct rounds of the reception, segregation, and hospital buildings, and assist during all physical examinations. In fact, physicians cannot see patients unless a nurse is available. In addition, nurses respond to emergency calls from the corrections officers and handle routine health care inquiries. Nurses also conduct the initial interview and screening of new admissions to Bedford Hills. Also, prior to October 31, 1974, the nurses had to prepare all of the individual prescriptions because there was no pharmacist. *fn2" In short, the health care delivery system at Bedford Hills could not operate without the nurses.

 Ms. Daly, the Nurse Administrator, testified that to perform these duties she required, at a minimum, two nurses on the day shift (8:00 A.M. to 4:00 P.M.), two on the evening shift (4:00 P.M. to 12:00 P.M.), and one on the night shift (midnight to 8:00 A.M.). She further testified that barring complications she could accomplish this with eight nurses. However, Ms. Daly recognized that nurses' illnesses, vacations, and the like interfere with the coverage which she deems minimally adequate. For example, on December 2, 1975, when Ms. Daly had nine nurses, the night nurse was ill and there was no coverage of the midnight to 8:00 A.M. shift. On December 4, there was only one nurse on the day shift and one for a portion of the evening shift. It was apparent to the Court at the time of trial, which began on January 12, 1976, that eight nurses could not provide continuous medical coverage seven days a week. For example, on January 12 and 16, 1976, there was only one nurse on the evening shift, and for the weeks of January 5 through 11 and 12 through 18, there was no night coverage two days a week.

 Prior to the fall of 1974, however, Ms. Daly had only six nurses. As a consequence, even when all six worked, there was only one nurse on the evening shift four days a week, and the night shift was not covered two nights a week. Vacations and illnesses further reduced the coverage. In the fall of 1974, one and one-half nurse positions were loaned to Bedford Hills by another institution. However, due to resignations, by April 1975 only one half-time and six full-time nurses remained. The vacancies were not filled until the fall of 1975.

 Dr. Frost in a May 20, 1975 report to Dr. Loudon stated that upon visiting Bedford Hills he found a severe nursing shortage to be a key problem. He described the effect on the medical program as follows:

 
We find that a weak link in the flow of patient care is the lack of nursing personnel. This shortage of nursing personnel is particularly important to this program that relies heavily on part-time physicians to provide the clinical services. Such physicians have outside demands that are priority items to them. Hence, the [Correctional Facility] must have some degree of flexibility to utilize their services at times when they can report to the [Correctional Facility]. With a shortage of nurses, the flexibility is minimal with the result that the program constantly falls behind in physician services.

 In a memorandum of August 25, 1975, Dr. Frost further informed Dr. Loudon that the shortage of nurses was resulting in a limitation of physician services in that physician hours had to be cancelled due to the unavailability of nurses to assist the doctors.

 Dr. Williams himself testified that he was operating with a skeletal staff. He indicated that when fully staffed he barely had enough nurses.

 Thus, the defendants admit that, on occasion, they have found the nursing staff inadequate.

 Physician services at Bedford Hills have varied widely in the approximately two and one-half years examined in this lawsuit. In the fall of 1973, Dr. Schoenberger was the Facilities Health Services Director. Although employed full-time at the institution, he apparently did not spend the required thirty-five hours a week there. Dr. Schoenberger was assisted by Dr. Tschorn, who saw patients approximately one and one-half to two hours a day, and by Dr. Kones.

 Dr. Kones was the next Facilities Health Services Director. As such, he spent about two to four hours daily at the institution. Dr. Tschorn continued to see patients for about one and one-half to two hours a day during this time. Dr. Kones resigned in June 1974.

 From June 1974 until Dr. Williams assumed the position in September 1974, Bedford Hills was without a Health Services Director and full-time physician. Dr. Tschorn continued to see patients and Drs. Enders and Yu provided additional physician coverage.

 As of the time of trial, Dr. Williams continued to hold the position of Health Services Director, and spent about five to six hours a day, five days per week, at the institution. Although he has spent more hours at the facility than did his predecessors, not all of this time has been spent seeing patients.

 At the time of trial, Dr. Saadat served as a part-time physician on the regular staff of the institution. According to the defendants, he sees patients approximately two hours per day, five days per week, principally providing gynecological services. For the nine week period from November 3, 1975 to January 3, 1976, Dr. Saadat saw an average of twenty-seven patients a week for episodes of illness. *fn3" Dr. Saadat also alternates on call weekends with Dr. Williams.

 The regular medical staff, as of the time of trial, was supplemented by four physicians who serve on a consultant basis. Dr. David, a urologist, practices general medicine at the Facility two days a week, usually Monday and Thursday, from 9:00 A.M. to noon. Dr. Ogwo, also a urologist, practices general medicine at the Facility Tuesday and Wednesday, from 10:00 A.M. to 1:00 P.M. Dr. Poon does general medicine on Friday from 9:00 A.M. to noon. Dr. Enders has general medicine hours on Saturday from 10:00 A.M. to 1:00 P.M. Thus, among these four doctors, regular primary physician care is provided six days a week, three hours a day.

 In addition to these primary care physicians, Bedford Hills is serviced by a number of specialists. A dermatologist holds a 3-hour clinic one day every other week, and a neurologist, a podiatrist and an optometrist hold clinics in the specialties. Although there was testimony that an optometry clinic was held one day a week and that the other clinics were held approximately once a month, the records for the nine-week period from November 3, 1975 to January 3, 1976 reflect that only the optometry clinic was held and that only once.

 In addition to the medical services provided at the institution, Bedford Hills uses the services of outside consultants and local hospitals when needed. Northern Westchester Hospital, and Westchester County Medical Center ("Grasslands") are utilized principally for emergencies, diagnostic testing and surgery. Plastic surgery is performed at Fishkill Correctional Facility.

 Plaintiffs' experts agreed that the present level of physician staffing is adequate for an institution the size of Bedford Hills. However, they contend that the quality and availability of medical care cannot be measured solely by the number of doctors. Rather, they claim, and the Court agrees, that it is necessary to inquire whether the available physicians are used to maximum advantage so that medical services timely reach all those in need. In other words, it is necessary to examine how various components of the medical care delivery system interact with each other and with correctional regulations so as to either afford or deny the physician services that are potentially available.

 To prove their allegations, plaintiffs introduced the medical records of sixty-four Bedford Hills inmates who had signed medical releases. Defendants argued at trial that these records are not representative. The Court rejects this argument. Although not a random sample in a statistical sense, the records were not pre-selected by plaintiffs' attorneys. Rather, what was introduced was limited by this Court's discovery order issued in response to the defendants' resistance to broader discovery. If the records introduced by plaintiffs were atypical, defendants were free to introduce other records, provided appropriate measures were taken to protect inmate privacy. This they failed to do, and so the Court deems the records produced by plaintiffs to be representative of the medical treatment provided to the plaintiff class.

 The Court cannot, without unduly extending an already lengthy opinion, make specific findings with respect to every instance of allegedly inadequate treatment cited by plaintiffs. Accordingly, the absence of a discussion and specific finding with respect to certain instances should not be taken as an oversight. Rather, the Court has examined every incident noted by plaintiffs and has concluded that cumulatively these additional incidents neither add to nor detract from the case otherwise presented.

 The Court now turns to a review of the evidence with respect to the actual care rendered the inmates of Bedford Hills by the medical system.

 FINDINGS OF FACT AND APPLICATION OF LAW

 I. Admission Health Screening

 On the day of arrival at Bedford Hills, each new inmate is referred to the medical staff for admission health screening. This process has many functions. First, it serves to prevent the introduction of infectious diseases into the institution. Second, it is used in determining the appropriate institutional classification for the inmate. Third, it is necessary to identify or confirm acute or chronic conditions, such as diabetes or hypertension, which require treatment. Finally, it can be an important tool in practicing preventive medicine.

 At admission health processing, the inmate is seen by a nurse who takes a medical history, performs vaginal and rectal examinations for contraband, and takes and records the inmates vital signs. The nurse also performs a test for gonorrhea and obtains urine for a urinalysis. Additional lab work is scheduled.

 Defendants' regulations provide that each new inmate should receive, as part of the admission health screening, a gynecological and general physical examination the day following her arrival or as soon thereafter as possible. Despite this regulation, the evidence adduced establishes that in the two-year period from October 1973 through September 1975, general admission physical examinations, on average, were not performed until approximately forty-three days after admission, and gynecological examinations, on average, were not performed until approximately twenty-seven days after admission. Within the two-year period, the interval between admission and examination varied widely, from four days for the performance of a general physical in March and June 1975, to one hundred and twenty-nine days in March 1974. The interval between admission and performance of an admission gynecological examination varied from a high of sixty-two days in February 1974, to two days in September 1974.

 Defendants do not challenge the veracity of these statistics derived from an analysis of defendants' own records. Rather, they argue that women leave the institution for court appearances and the like and that plaintiffs' statistics fail to account for such obstacles. Defendants' argument must be rejected because they failed to offer any evidence tending to support this contention in general or in regard to the nineteen specific cases cited by plaintiffs.

 Plaintiffs' experts condemned the delays in providing admission health examinations, all agreeing that the examinations should be performed within one week of admission. One reason was that the purposes of the examination are not achieved when the examination is delayed. For example, one of defendants' purposes in performing admission physicals is to properly classify an inmate for work assignments; yet women are released into the general population and assigned work after three weeks at the institution, a point at which, on the average, they will not have had their admission physical. *fn4"

 Plaintiffs introduced evidence of problems that arose as a result of the failure to perform admission physicals promptly. For example, the nurse's admission note for Paulette Blackstock indicates that she had a vaginal discharge when she was admitted on July 16, 1974. Her admission history reflects her telling the nurse at that time that she had a "urinary infection" and a "tube infection" for which she had been treated at Rikers Island. She saw the gynecologist initially on August 14 after complaining of pain and vaginal infection on August 13. Defendants ask the Court to draw the inference that Ms. Blackstock had no complaints of pain on admission and that she did not complain prior to August 13. The Court cannot draw this inference because the "114 Lobby A.M. Clinic Book" for the period July 19, 1974 through December 30, 1974 contains several notations of complaints by Paulette Blackstock with reference to this condition. On July 19, 1974, the nurse's note indicates "Paulette Blackstock = 'tube infection.'" There are no clinic notations for any inmates for July 20, 22, 23. On July 24, there is another note "GYN -- Paulette Blackstock -- tube infection PID Rx on Adm. [Pelvic Inflammatory Disease treatment on admission]." On July 25, the nurse noted "Paulette Blackstock -- wants Dr. Saadat. Infection in tubes." Thus, the conclusion is inescapable that from the time she was admitted to Bedford Hills Ms. Blackstock repeatedly complained of gynecological distress, but did not see the gynecologist until August 14 when, according to the lobby clinic note of that day, she asked to be admitted to Sick Wing.

 Another example offered by plaintiffs is Mary Kerr, a diabetic admitted on July 16, 1974 complaining of headaches. She told the nurse her eyes were "bad" and that she needed glasses. She was referred to an ophthalmologist on August 27, 1974 after seeing a doctor on August 9 for poor vision and swelling of her left eyelid. On August 27, the ophthalmologist made the diagnosis of "advanced diabetic retinopathy with retinal and iris neovascularization." In December 1974, her condition was determined to be untreatable and permanent blindness ensued. Plaintiffs argue that had she been given a prompt admission physical, the condition might have been discovered earlier and might have been treatable. Although the condition might have been uncovered earlier, the subsequent history of Ms. Kerr's treatment precludes this Court from concluding that referral to an ophthalmologist six weeks earlier would have resulted in the condition being treatable. *fn5"

 The Court has considered the other examples cited by plaintiffs and in light of the evidence as a whole is unable to conclude that the disposition of the medical complaints cited resulted from the failure to perform a prompt admission physical, rather than from the more general problem of physician access discussed infra. Accordingly, the Court finds that plaintiffs have failed to prove that any medically significant consequences resulted solely from the failure to provide such an in-take examination. Although an admission health examination performed soon after admission is generally considered proper procedure, see ABA Commission on Correctional Facilities and Legal Services, Medical and Health Care in Jails, Prisons and Other Correctional Facilities 7, 16, 19 (3d ed. 1974), and no reason is given why such examinations cannot be performed within one week of an inmate's admission to Bedford Hills, the Court cannot hold, absent proof that infection was thereby introduced into the prison's population or that inmates consequently received medically harmful job assignments, that delayed performance of such a general examination violates the plaintiffs' constitutional rights. See Collins v. Schoonfield, 344 F. Supp. 257, 277 (D.Md.1972).

 Plaintiffs contend that chest x-rays, which are taken by an x-ray technician who visits the institution one day per week, are not reported promptly by the outside radiologist to whom they are sent for reading. However, the Court has concluded that insufficient evidence was adduced to establish that delays of over one month are other than isolated.

 Plaintiffs finally contend that use of the x-ray machine and defendants' practice of obtaining urine by catheterization expose the inmate class to danger. The chest x-ray machine is antiquated and, as early as the fall of 1973, defendants were advised to replace it. In April 1974, an inspector from the New York State Department of Health found the machine not in compliance with minimum state standards. Defendants have obtained a new x-ray machine but as of the date of trial it was inoperable for lack of a table.

 The Court finds that the x-ray machine is inadequate and potentially dangerous. Therefore, exposing inmates to this danger constitutes recklessness. See Newman v. Alabama, supra at 1323-24, 1331. Moreover, defendants' continued use of this machine for at least two years after they learned of its danger and inadequacy amounts to deliberate indifference.

 Expert witnesses for plaintiffs testified that catheterization of the urinary tract is a potential source of infection and not recommended procedure for obtaining urine specimens. It appears that defendants terminated this practice shortly before trial. Accordingly, the Court makes no finding relative to this discontinued procedure.

 II. Sick Wing

 Sick wing contains approximately 19 rooms and is used to house those patients who have elevated temperatures, defined as 100 degrees or higher, have elevated blood pressure, defined as diastolic 100 or more, have had epileptic seizures within the previous twenty-four hours, have been returned from hospitalization, and any other patient who in the judgment of the medical staff is incapacitated in some way and requires bed rest and closer observation. Of the 19 rooms, the four at the far end of the first floor corridor contain their own toilet facilities. These rooms, known within the institution as observation rooms, are used principally by the mental hygiene department. They are also used to house patients transferred to the sick wing from segregation, or suspected of having an infectious disease, or requiring easy access to a toilet. These rooms are locked except when used to house a patient who requires easily accessible toilet facilities. Sick wing rooms not containing toilets are kept unlocked.

 The nurses make rounds of sick wing at least twice a day, in the morning and evening. In addition, Ms. Daly, the Nurse Administrator, testified that she instructed her nurses to conduct a mid-day round, and that when necessary a nurse dispenses medication in sick wing in the late afternoon.

 Prior to Dr. Williams' arrival at Bedford Hills in September 1974, there were no regular physician rounds of sick wing and no patient in sick wing saw a physician unless a nurse placed her name on the physician's appointment list. Dr. Williams indicated that he would like to conduct regular rounds of sick wing each weekday afternoon, but he has not always been able to do so.

 In addition to the medical staff's rounds of sick wing, the corrections officers are instructed to make rounds of the sick wing every half hour. When sick wing houses a patient who is in need of closer observation, rounds are to be made every fifteen minutes.

 Despite the rounds conducted by the medical staff and corrections officers, plaintiffs contend that there is a serious inability to observe sick wing patients, compounded by the patients' inability to communicate their need for medical assistance. This is because there is no nurse's or corrections officer's station within the sick wing corridor itself; the nearest nurse is located on the first floor in the main ambulatory care clinic. Although a corrections officer is stationed on each floor of the sick wing, he or she is across a lobby from the patient corridors. At the entrance to the corridors are two doors -- one heavy mesh and the other heavy wood with only a small opening -- one of which is always locked. Although the testimony is unclear, it appears that at least on some occasions the sick wing corridors are closed off by the heavy wooden door. The guards cannot see into the rooms ...


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