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DEAN v. COUGHLIN

April 1, 1986.

Mary DEAN, et al., for themselves and all others similarly situated, Plaintiffs,
v.
Thomas A. COUGHLIN III, et al., Defendants.



The opinion of the court was delivered by: KRAM

PRELIMINARY INJUNCTION

KRAM, District Judge.

 On December 3, 1985, this Court issued an opinion in this case which found a total breakdown in the provision of dental care at the Bedford Hills Correctional Facility, 623 F. Supp. 392, (Bedford Hills). *fn1" The Court also found that inmates with serious dental problems at Bedford Hills were in immediate danger of irreparable harm to their health. *fn2" The Court entered a preliminary injunction, ordering the defendants to provide adequate dental care to inmates with serious dental needs at Bedford Hills. *fn3" Specifically, the Court ordered the defendants to "provide a dental access system that assures prompt diagnosis and treatment for inmates with serious dental needs, provide a system that assures that follow-up care is provided as ordered and without delay, and take prompt steps to eliminate expeditiously the current backlogs in treatment." *fn4" In the opinion, the Court indicated it would refrain from entering a more detailed order because it expected the parties to cooperate in implementing the preliminary injunction.

 In order to assess compliance with the preliminary injunction, the Court held a conference with the parties on December 20, 1985. The Court adduced that the defendants had made no progress in improving dental care at Bedford Hills and had rebuffed all plaintiffs' overtures to discuss compliance terms. In short, the defendants were not complying with the preliminary injunction. The Court ordered the defendants to meet with the plaintiffs within ten days to discuss compliance.

 The Court held another conference on January 17, 1986. Although the parties reported to the Court that they had met on December 30, 1985, they also stated they made little progress at the meeting. Defense counsel informed the Court that defendants were planning to hire Mobile Dental Services (MDS) to provide dental care at Bedford Hills. When the Court asked about the status of the negotiations, defense counsel informed the Court that the negotiations were proceeding slowly, and that defendant Broaddus, who was responsible for the negotiations, was very busy with prisoners suffering from AIDS. Neverthless, the defendants were unwilling to allow another state official to conduct the negotiations. Defense counsel also complained that defendants' obligation to produce discovery in the underlying action reduced the time they could spend on working out compliance terms. It became clear to the Court that defendants were engaging in dilatory tactics.

 Defendants' attitude about this litigation has also been problematic. They apparently fail to recognize that based on overwhelming evidence that they were not providing dental treatment to inmates with serious dental needs, the Court has entered a preliminary injunction ordering them to institute an appropriate dental care system. Instead, defendants have refused to enter into settlement negotiations as the court has urged. They have fiercely resisted plaintiffs' legitimate discovery requests, requiring intervention by the Court on a number of occasions. For example on December 20, the Court had to order the defendants to produce current dental records. The Court had already ordered the records produced in November. Defendants also sought a protective order against plaintiffs' taking of certain depositions, including that of defendant Thomas Coughlin, which the Court also denied.

 Even more disturbing to the Court has been the defendants' failure even to attempt to improve dental services at Bedford Hills as ordered. Plaintiffs' counsel indicated that he was receiving ten to fifteen letters a week from inmates who were in pain and not receiving dental treatment. Plaintiffs' expert also inspected the dental facility, and after reviewing the clinic's statistics found that two out of five emergency patients were not receiving treatment. Defense counsel could not rebut these claims with any specific assertions, and simply stated the information he had was the clinic was treating emergencies. The Court's impression was that the clinic was treating only emergencies.

 Based on the above, the Court ordered each party to submit a proposed order for implementation of the preliminary injunction. The Court also ordered each party to submit to the Court a proposed notice to the inmates at Bedford Hills updating the status of this class action.

 Each party has submitted detailed proposals for compliance as well as replies and surreplies. The defendants propose to hire MDS to provide dental care at Bedford Hills. By their own estimate, their plan would take from three to seven weeks to implement once the Court approved it. Given the defendants' history of promises to improve dental services without ultimate delivery *fn5" and obstinacy in complying with the preliminary injunction, the Court is skeptical about these estimates. Even if these estimates were accurate, however, they are not satisfactory. The Court's opinion of December 3 found that a number of inmates were in immediate danger of irreparable harm. *fn6" The defendants have made no apparent effort to employ existing resources to improve delivery of dental services, and the Court will not approve a plan that will take additional time.

 Although MDS might well be able to provide adequate dental services at Bedford Hills in the long run, the defendants must act now to comply with the preliminary injunction. While the Court encourages the defendants to continue their negotiations with MDS, and does not intend this Order to preclude the defendants from hiring MDS to run the clinic, the Court's major concern is providing immediate dental care to inmates with serious dental needs at Bedford Hills. With that in mind, the Court will order defendants to comply with a plan which will insure such treatment.

 It is hereby ORDERED that the defendants comply with the following plan for implementing the preliminary injunction.

 I. Establishment of a Priority System

 A. No later than ten days after the entry of this Order, Bedford Hills shall adopt the American Dental Association's system for classifying dental cases as its guideline for setting treatment priorities. (A copy of the criteria is attached as Appendix A.) The classification system denominates four classes of patients. Class One patients shall be called non-priority patients, Class Two patients shall be called low priority patients, Class Three patients shall be called high priority patients, and, Class Four patients shall be called emergency patients.

 B. A copy of the priority system shall be posted in the dental clinic, each housing unit, and the law library.

 C. Within 10 days of this Order, the defendants shall file an affidavit with the Court stating the date the priority system was adopted and the date it was posted.

 II. Assessment Examinations of the Inmate Population

 A. No later than ten days after entry of the Order, defendants shall notify the inmate population that they may request an assessment examination by a dentist for the purpose of assigning treatment priorities to their current dental needs. The notification shall be made in a manner reasonably calculated to insure that all inmates wherever confined at Bedford Hills have an opportunity to request this examination. At a minimum, defendants shall post in each housing unit at Bedford Hills a sheet entitled "Requests for Dental Assessment Examination." The sheet shall explain that inmates may obtain an assessment examination by signing their names. These sheets shall be posted for thirty days following the date of this Order.

 B. The defendants shall account for each inmate by noting her choice to request or decline the assessment examination on a log bearing the names of the entire inmate population.

 C. No later than forty-five days after entry of this Order, defendants shall insure that a dentist completes an assessment examination of all patients who request one. Such patients shall be informed of the dentist's findings and of their treatment priorities. Defendants shall maintain a log of all patients who had assessment examinations, containing the patient's name and number, the date she was examined, and the treatment priority she was assigned. Defendants shall also enter this information on each inmate's dental chart.

 D. During the period in which the assessment examinations are conducted, the dental clinic shall continue to treat Class 4 emergency patients.

 E. No later than 10 days after this Order, the defendants shall file with the Court an affidavit stating that they have notified the inmate population that they may request assessment examinations and describing the method of notification. Within forty-five days after the entry of this Order, defendants shall file with the Court a copy of each log required to be maintained by this section along with an affidavit stating that the logs are accurate and the assessment examinations have been completed. *fn7"

 III. Dental Sick-Call System

 A. No later than forty-five days after entry of this Order, defendants shall adopt the following system for dental sick-call.

 B. The dental sick-call system shall utilize sign-up sheets, to be posted daily in all housing areas and conspicuously marked "Requests for Dental Care." Inmates desiring a consultation with the dentist shall sign the sheet and indicate the reason for the request; or where it is not feasible for the inmate to sign the sheet herself, defendants shall insure that facility personnel note the request at her behest. Defendants shall insure that the sign-up sheets are collected and delivered to the dental clinic by 9:00 a.m. on a daily basis.

 C. The dental sick-call system to be initiated shall replace the "Request for Dental Appointment" forms and "Nurses Screening Lists" insofar as dental care is concerned.

 D. Patients whose requests for dental care indicate they need emergency treatment shall be seen and treated by a dentist on the day of their request. Patients seeking emergency care who after examination are not found to be suffering from dental emergencies shall be treated in accord with the next paragraph.

 E. All other patients requesting dental sick call shall be examined by a dentist within one week after their requests. Defendants shall assign treatment priorities to all such patients and shall inform them of the dentist's findings and of their priorities.

 F. Defendants shall maintain a daily log of all patients examined at dental sick call containing the patient's name and number, the date she requested treatment, the date she was examined, and her treatment priority. Defendants shall file an affidavit within forty-five days of this Order stating they have adopted this system for dental sick call.

 IV. Appointment and Follow-Up System

 A. If the examining dentist believes a patient who has received an examination requires a return visit to the dental clinic for follow-up treatment or evaluation, the dentist shall exercise his or her best professional judgment as to when the patient should be seen again and shall enter such order on the patient's dental chart. Such patients shall be given follow-up appointments in accordance with the dentist's order.

 B. The follow-up and appointment system shall utilize an appointment book, a "prosthetic device log" and a "missed appointment log."

 C. Defendants shall make all dental appointments for a specific date and time and enter them in an appointment book. At the time her appointment is made, each patient shall be given a signed appointment slip bearing the date and time of her appointment. These appointments shall be made before the patient leaves the dental clinic on the day she is examined or treated, unless such patients are awaiting prosthetic services involving an outside laboratory.

 D. Defendants shall maintain a "prosthetic device log" for all dental patients awaiting prosthetic services involving an outside laboratory. The log shall contain the patient's name and number, the prosthetic service she is awaiting, each date the prosthetic device or impression is sent to or returned from the laboratory, and the date the finished device is delivered to the patient. A follow-up appointment shall be made for each such patient when her prosthetic device is returned from the laboratory for fitting, and the appointment shall occur within one week of the receipt of the device by the dental clinic.

 E. At the end of each working day, defendants shall enter in a "missed appointment log" the name and number of each patient who had a dental appointment scheduled for that day but was not treated, along with the purpose of the appointment and the reason for its non-occurrence. No patient shall be deemed to have refused treatment unless she, or a facility staff member witnessing her refusal, so states in writing.

 F. Unless she has informed the dental clinic in writing that she wishes to discontinue treatment, a patient whose appointment does not occur on the day it was scheduled shall be given a new appointment, which shall be entered in the appointment book and in the "missed appointment log"; and a new appointment slip shall be promptly sent to the ...


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