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July 1, 1986

WALTER WOE, by his mother and guardian, WILMA WOE, on behalf of themselves and all others similarly situated, Plaintiffs,
MARIO CUOMO, individually and as Governor of the State of New York; DR. STEVEN KATZ, M.D., individually and as Commissioner of the Department of Mental Hygiene of the State of New York; Dr. E. RICHARD FEINBERG, M.D., individually and as Director of Bronx Psychiatric Center; DR. ORDOGAN TEKBEN, M.D., individually and as Director of Mid-Hudson Psychiatric Center, Defendants

The opinion of the court was delivered by: NEAHER


 NEAHER, District Judge.

 This case returns to the Court on remand from the Court of Appeals, which entered the following order,

"Accordingly, we affirm the judgment of the district court with respect to the state law and equal protection claims, and reverse and remand the right-to-treatment claim to the extent we have hitherto indicated."

 Woe v. Cuomo, 729 F.2d 96, 108 (2nd Cir. 1984), cert. denied, 469 U.S. 936, 105 S. Ct. 339, 83 L. Ed. 2d 274 (1984).

 To comprehend the nature of its responsibility under the Court of Appeals' mandate, the Court must examine the entire opinion of the Court of Appeals. See Cherokee Nation v. Oklahoma, 461 F.2d 674, 678 (10th Cir. 1972). The significance of this observation stems from plaintiffs' contention that the Court of Appeals, in essence, has decided the case in their favor by adopting their proposition of law, to wit: absence of JCAH (Joint Commission on Accreditation of Hospitals) accreditation of a hospital for the mentally ill establishes that the hospital is not rendering care of a constitutionally adequate quality. See Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982). To support their contention, they rely on the following passage,

"Of course, where a facility lacks accreditation by JCAH, not even a prima facie showing of adequacy exists."

 729 F.2d at 107.

 To comply with the Court of Appeals order, this Court held hearings on May 15, 16, and 17, June 5 and 6, and August 20 and 21, 1985, to receive testimony and documentary evidence on the issue of constitutionally adequate care as related to plaintiffs' claims concerning the quality of care at Mid-Hudson Psychiatric Center (Mid-Hudson) and Bronx Psychiatric Center (BPC). *fn1" In accord with the Court of Appeals' order, the following constitutes the Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52 (a).

 At the outset, the Court is concerned about defendants' posture at the hearings and in their subsequent papers. Defendants assert that neither the record nor the law support the granting of the relief proposed by plaintiffs. Defendants seemingly overlook that,

"The district court has broad discretion to fashion an equitable remedy that meets the practical demands of the situation, as well as the requirements of the Constitution."

 Felton v. Secretary, etc., 787 F.2d 35, 37 (2d Cir. 1986). Thus, even if the record does not support the precise relief requested by plaintiffs, this Court is not prohibited from granting less or different relief. See Perfect Fit Industries, Inc. v. Acme Quilting Co., 646 F.2d 800, 806 (2d Cir. 1981), cert. denied, 459 U.S. 832, 103 S. Ct. 73, 74 L. Ed. 2d 71 (1982) ("It is well settled that the district court's equity jurisdiction empowers it 'to mould each decree to the necessities of the particular case.' Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944); Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 947 (2d Cir. 1969)."). Additionally, to clarify the record, 729 F.2d at 107, the parties agree that Mid-Hudson has never sought JCAH accreditation and that BPC lost its JCAH accreditation, effective August 1984.

 In the course of the hearings, apart from cross-examination, defendants presented no evidence. As a result, plaintiffs reason very simply that the Court of Appeals has adopted JCAH accreditation as the yardstick of constitutionally adequate care, and since BPC and Mid-Hudson are not JCAH accredited, these two factors establish a prima facie case of violation of plaintiffs' right to adequate treatment as recognized in Youngberg, supra. In turn, plaintiffs assert, that the prima facie case thus shifts to defendants the burden of demonstrating that BPC and Mid-Hudson nevertheless deliver constitutionally adequate care but since defendants have never attempted to satisfy that burden, plaintiffs are entitled to injunctive relief. This reasoning does not follow from the Court of Appeals opinion.

 Recognition of JCAH accreditation as prima facie proof of adequate care merely allows plaintiffs to examine and probe the conditions of a JCAH accredited facility. In the context of litigation, the burden of demonstrating entitlement to injunctive relief rests upon the applicant, whom, as the Court of Appeals observed, may seek to establish, either in general or as applied to a specific facility, that JCAH standards are below constitutional benchmarks. 729 F.2d at 106. The Court of Appeals said nothing specific about the kind or quality of evidence necessary to establish a prima facie case of constitutionally inadequate care apart from a reference to the standard enunciated in Youngberg, supra. In terms of its anticipation of further proceedings, inferentially relevant to this issue, the Court of Appeals did state,

"In any event, we believe the entry of summary judgment, denying appellants [plaintiffs] an opportunity to prove their allegations, would be inappropriate as to that or any other institution losing accreditation or approval prior to final judgment." (Emphasis supplied)

 729 F.2d at 107. This conclusion is consistent with the earlier statement that,

"Although fully cognizant of the critical importance of the rights appellants [plaintiffs] seek to vindicate in this action, we are nevertheless persuaded that the district court was correct in holding that appellants had failed to assert an adequate factual basis for many of their claims. At the same time, we believe that the dismissal of certain claims was premature. Accordingly, we remand so that appellants may have an opportunity to document the constitutional defects they allege."

 729 F.2d at 98-99.

 In sum, the Court of Appeals did not decide the issue in plaintiffs' favor. On the contrary, the Court of Appeals, by its remand and opinion, has left it to this Court to determine the issue after a hearing in which plaintiffs would have the opportunity to prove their allegations and to document the constitutional defects they allege. Clearly, the absence of JCAH accreditation does not mean that the care rendered by a hospital is constitutionally inadequate.

 To meet their burden of proof, plaintiffs called Dr. Henry Pinsker, Associate Director of Psychiatry at Beth Israel Medical Center in New York, as an expert (curriculum vitae, Pl. Exh. 15). He painted a harsh picture of the unaccredited institution. He noted that if his facility were to lose its accreditation, it would close in two weeks because third party payments (e.g., Medicare and Blue Cross) would cease. Concerning the adequacy of medical care, he stated, "It's hard to imagine." He hypothesized nevertheless that an institution could be deficient in environmental areas (e.g., fire hazards, dangerous conditions, poor heating) yet deliver adequate medical care, "but it might not be an adequate place for anybody to live." He opined that JCAH "bends over backwards" not to withdraw accreditation and that "some awfully miserable hospitals throughout the country have their accreditation."

 Assuming the existence of a deficient environment, he testified that poor conditions would negatively affect patients. For example, individuals suffering from a chronic illness whose treatment is poor, are less likely to experience an improvement or periods of remission. He characterized descriptions of chronic schizophrenia in psychiatric literature as actually describing "chronic institutional care and understimulating environment." On cross-examination he reiterated that there is a possibility that a patient may be receiving satisfactory care in an unaccredited institution.

 Also qualified as an expert (curriculum vitae, Pl. Exh. 3), Dr. Steven Rachlin, currently chairman of clinical services at Nassau County Medical Center, had once worked as a staff psychiatrist at BPC. He oversees a 90 bed JCAH accredited and HHS (Department of Health and Human Services) certified facility and has testified as an expert on individual treatment issues. He identified the JCAH manual, Pl. Exh. 4, and the Consolidated Standards manual, Pl. Exh. 5, which pertains more specifically to mental health facilities. These publications contain the standards against which JCAH measures the quality of a hospital's care for purposes of accreditation. He explained that the manual refers to "substantial compliance" because no one expects "perfection" or "100%". He also elaborated that the standards do not set a high level of care.

"Q. To your mind, what kind of standards are they?
"A. This is the minimal acceptable standards that a hospital or other facility ought to be able to comply with.
"Q. And if a hospital does not comply with those standards, sir, can it provide adequate patient care?
"A. Probably not."

 Tr. May 15, 1985 at 82.

 As Dr. Rachlin elaborated, accreditation occurs after a lengthy process in which a hospital is surveyed. See Woe v. Cuomo, 559 F. Supp. 1158, 1163-64 (E.D.N.Y. 1983) (describing the JCAH accreditation process). The facility has advance notice of the visit by trained JCAH surveyors who meet with administrative staff and establish a schedule for observing programs and services and examining documents. A team of up to 5 individuals drawn from hospital related professions (e.g., physicians, nurses, social workers, administrators, engineers) conducts an inspection over several days, gathering data for transmission to the JCAH staff in Chicago. The Board of Commissioners renders a final decision after reviewing the data. Accreditation may be granted with a contingency or contingencies, which are deficiencies from the standards. Such deficiencies are not serious enough to deprive the institution of accreditation but do require documentation of subsequent correction, alteration, or elimination.

 After confirming that the cutoff of third-party medical services reimbursement follows on the heels of loss of accreditation, Dr. Rachlin added that the staff of an unaccredited facility suffers a loss of professional pride, the facility's residency training program is jeopardized, the dissemination of the event through the press damages the hospital's reputation, and most pertinent, relatives justifiably worry about the quality of care the patients are receiving.

 The problem is especially acute for the involuntarily civilly committed patient, who is not in a position to select an accredited institution. Such individuals, who are part of the class the court originally certified in this case, enter a hospital for emergency care after evaluation by a physician and staff who have concluded that the individual meets the statutory criteria for hospitalization. Involuntary civil commitments also come to a hospital from other hospitals on the certificate of two physicians. The receiving hospital evaluates the patient and determines whether to grant admission. In either case, patients are not advised of the accreditation status of the hospital they are about to enter.

 Concerning BPC, Dr. Rachlin noted that the hospital had received three consecutive 1-year provisional accreditations. This indicates that JCAH has encountered a problem or problems of sufficient gravity to warrant a resurvey within one year instead of the usual three years. The shorter accreditation period permits the hospital to remedy the problem while enjoying the benefits of accreditation. A three year accreditation with contingency followed the one year accreditations. From the entire set of circumstances, Dr. Rachlin concluded that on their return, the surveyors had encountered similar problems. He summarized the findings, Pl. Exh. 1, as follows:

"A. I think the material from the Joint Commission specifies it specifically. They found significant difficulties in a variety of areas, including treatment planning, chart documentation, progress notes, discharge summaries, medical records, nursing staff, medical evaluations of patients, physical environment, life safety, a whole host.
"Q. And the JCAH is the standard professional body in the United States which evaluates whether patient care meets minimally adequate standards or not?
"A. They are so recognized nationally.
"Q. Doctor, you have your own opinion based on what you've seen as to whether or not the Bronx facility provided a minimally adequate care for the patients, don't you?
"A. Well, I would have to say based on the documentation available to me, that in all probability, they were not providing adequate care because they had so many problems."

 Tr. May 15, 1985 at 104.

 Examination of JCAH publications (manuals) for accreditation confirms the testimony of Dr. Pinsker. There is no indication of just which criteria JCAH emphasizes as "bottom line" for accreditation and which criteria are more flexible depending on the circumstances and institution under consideration. On this point, Dr. Pinsker testified,

"A . . . I might add, hospitals that I know of have been in danger of losing accreditation or lost it have usually had environmental problems, and also deficiencies in many aspects of care. The[y] are usually not maintaining proper records. They usually don't maintain proper supervision of staff. Professional staff. Non-professional staff. These are the things the commission tends to examine extensively. They look at the staff organization, and when accreditation is lost, there is usually -- get at specific hospitals involved have not read their reports, but from what I know of hospitals that have had accreditation problems usually many aspects of care have been below par."

 Tr. June 4, 1985 at 15-16. Although not emanating from JCAH, conceivably this testimony inferentially identifies factors emphasized in the accreditation decision; however, it still does not inform the Court just how much of which type(s) of deficiencies will be tolerated before JCAH refuses or revokes accreditation. Dr. Steven Katz, Commissioner of the Office of Mental Health, confirmed this point.

"One of the shortcomings of the Joint Commission, from its inception, has been that they set identical standards for all facilities regardless of their goals and missions. And it's all well meaning. It has had very good effects in some areas, and it has been disastrous in other areas because all systems were not geared to deliver the same kind of care as an acute hospital system, and they still aren't, and [I] said that it really has been in many cases kind of trying to put a square peg in a round hole."

 Tr. June 5, 1985 at 10. He later added that after consultation with the industry, JCAH has realized that some of its standards need to be changed. Among the changes will be new standards for extended care facilities, which include many New York state mental hospitals.

 The table of contents of the Consolidated Standards manual illustrates the comprehensive scope of accreditation. The standards, covering 35 categories, are grouped in four broad headings, viz.,

Hospital/Facility management -- 1. Governing Body, 2. Chief Executive Officer, 3. Professional Staff Organization, 4. Written Plan for Professional Services and Staff Composition, 5. Personnel Policies and Procedures, 6. Volunteer Services, 7. Fiscal Management, 8. Facility and Program Evaluation, 9. Quality Assurance, 10. Utilization Review, 11. Patient Care Monitoring, 12. Staff Growth and Development, 13. Research, 14. Patient Rights, 15. Patient Records; Patient Management -- 16. Intake, 17. Assessment, 18. Treatment Plans (four subheadings), 19. Special Treatment Procedures; Patient Services -- 20. Anesthesia Services 21. Dental Services, 22. Dietetic Services, 23. Emergency Services, 24. Pastoral Services, 25. Pathology and Laboratory Services, 26. Pharmacy Services, 27. Professional Library Services (four subheadings); Hospital Facility/Environment -- 31. Plant, Technology, and Safety Management, 32. Therapeutic Environment, 33. Housekeeping Services, 34. Infection Control, 35. Sterile Supplies and Equipment.

 They are followed by appendices, one of which explains the accreditation process from application through appeal.

 Given the breadth of the standards, it is possible, as both experts testified, for an unaccredited facility to deliver constitutionally adequate care. The Court of Appeals implicitly recognized this reasoning when it observed that "loss of HHS certification may signal inadequate institutional conditions even where JCAH accreditation is in order." 729 F.2d at 106 n. 11. Unquestionably, however, the lenient manner in which JCAH applies its criteria, as evidenced by the testimony and the provisional accreditations extended to BPC over a four year period, reduces the chances of that hypothetical possibility in the case of an actual unaccredited hospital.

 In determining proper injunctive relief, the Court cannot speculate as to what measures are necessary to bring a facility's quality of care up to constitutionally adequate standards. Cf. Youngberg, supra, 457 U.S. at 321-22. Before the Court may order the defendants to do anything (or cease from doing something), it must know about the conditions prevailing in the facilities at issue. It should know the standards that are in force, their origin, and the degree to which the standards are observed in practice. Informed of these factors, the Court may then determine whether the quality of care at an institution falls within the scope of professional acceptability or represents an exercise of professional judgment. See Woe, supra, 729 F.2d at 105-06 (discussion therein). Reports of surveys by accrediting agencies such as JCAH and HHS have been recognized as appropriate evidence of those conditions. E.g., Woe, supra, 729 F.2d at 106.

 The evidence discloses that the quality of care at the Bronx fell below constitutionally adequate standards during the pendency of these proceedings. The deficiencies noted in the living conditions and therapeutic environment (including medical care) are by-products of chronic and persistent overcrowding documented in the record.

 Pl. Exh. 7, a "Review of Living Conditions in Nine New York State Psychiatic Centers, May 1984", issued in December 1984 by the New York State Commission on the Quality of Care for the Mentally Disabled (hereinafter "Commission") is a copy of the Commission's final report on its survey of conditions at 9 hospitals, including BPC. *fn2" In May 1984 two commission staff members visited six randomly selected wards at each facility for a three day period. Many of the findings are general and pertain to more than one facility. Specific observations at BPC are reproduced verbatim:

" Bronx : There was less than 18 inches between beds on all wards. On two wards, patients were lodged out to other wards because there were not sufficient beds. Dayrooms and dining halls were crowded and sometimes were without an adequate number of seats for patients. The effects of overcrowding on the quality of life for patients were only too apparent. The many beds, particularly in small dorms, which were only inches apart; the sheer number of patients wandering the halls and squeezing into dining rooms that could not accommodate the entire ward population at one time, left patients without a sense of their own space." [p. 10] *fn3"
" Bronx : Many of the 24 sample patients were poorly dressed in shabby, mismatched, and sometimes ripped and ill-fitting clothing during the three-day period. Patients wearing pajama tops or bottoms instead of shirts or pants were not uncommon. Patients who did not bring personal clothing to the facility got the luck of the draw from the clothing room each morning. Others were wearing clothing that was not seasonal; for example, furry winter boots, a wool overcoat during our late May visit; and still others wore no underwear." [p. 15]
"[At Bronx] we observed wards where patients' clothes were stored under beds or piled on top of beds, chairs, or wardrobes for ...

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