Full opinion text
OPINION ELMO B. HUNTER, District Judge. This is the second portion of a class action challenging numerous conditions at the Missouri State Penitentiary. The first portion of the case dealt with overcrowding and sanitary conditions. See, Burks v. Walsh, 461 F.Supp. 454 (W.D.Mo.1978), aff’d sub nom. Burks v. Teasdale, 603 F.2d 59 (8th Cir. 1979). Here, plaintiffs have challenged the constitutional adequacy of various aspects of medical treatment inmates receive at the Missouri State Penitentiary Hospital (“MSPH”) under the 8th and 14th amendments to the United States Constitution. Specifically, plaintiffs seek an order for declaratory and injunctive relief regarding (but not limited to) the following areas in defendants’ health care delivery system: (1) to restrain guards from inflicting unnecessary pain on MSPH prisoner patients and to post the order throughout the hospital; (2) to prohibit nonphysicians from performing nonemergency surgery; (3) to prohibit any surgery at MSPH which involves blood, transfusions or general or spinal anesthesia except in emergency situations; (4) to mandate the hiring of more custodial personnel to accompany inmates who must be sent to other medical facilities; (5) to prohibit defendants’ employees from writing violation reports for alleged malingering except with the written authorization and approval of the Chief Medical Officer; (6) to mandate the institution of an evaluative review of the civilian medical assistants who are employed at MSPH, and a timetable for any further training that an individual medical assistant might require; (7) to mandate that defendants employ the equivalent of two full-time physicians at MSPH at least 5 days a week and 8 hours a day; (8) to . mandate the continuation of the Correctional Medical Services Program until there are two full-time physicians; (9) to mandate the hiring of sufficient numbers of registered nurses in order to offer round-the-clock coverage on MSPH’s second floor; (10) to mandate the hiring of a registered nurse to supervise and assist the medical assistants during sick call; (11) to mandate the initiation of a uniform record keeping system and to institute a record keeping training program for the inmate nurses and the medical assistants; (12) to mandate the hiring of civilians to work in the medical record department and prohibit the use of inmates for this purpose; (13) to mandate the writing of protocols for common diseases for use by the medical assistants at sick call; (14) to mandate the provision of chairs at sick call and the provision of greater privacy at sick call; (15) to mandate the staffing of the Intensive Care Unit (“ICU”) with a registered nurse or medical assistant 24 hours a day; (16) to mandate the provision of a monitor, defibrillator and other life saving equipment in the ICU; (17) to mandate the installation of a standard nurse call button system for nonambulatory patients; (18) to mandate the hiring of a full-time professional registered physical therapist to work in the Physical Therapy Department; (19) to prohibit the confining of any inmate on the fifth floor psychiatric ward without physician approval, or in the absence of a physician, upon a physician’s verbal order; (20) to prohibit the use of restraints on the fifth floor psychiatric ward except under direct orders from a physician and mandate the review of such an order every 12 hours thereafter; (21) to mandate the production of data on all inmates who have chronic conditions in order to assess these inmates’ working and living arrangements. The case was fully tried to the Court from February 11, 1980, through February 22, 1980, in Jefferson City, Missouri. This action is brought pursuant to 42 U.S.C. § 1983 and this Court has jurisdiction conferred through 28 U.S.C. § 1343(3) and (4) and 28 U.S.C. § 2201 and 2202. I. THE CONSTITUTIONAL STANDARDS FOR INMATE MEDICAL TREATMENT This Court’s inquiry into the medical treatment of inmates at MSPH must be prefaced by an exposition of the applicable constitutional limitations that guide judicial review. The Supreme Court has declared in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the appropriate scope of review in prisoner medical treatment cases. The Court there stated: We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain” . proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoners’ needs or by prison guards in intentionally denying or delaying access to medical or intentionally interfering with the treatment once proscribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. 429 U.S. at 104-05, 97 S.Ct. at 291. The Court further noted that not all claims of inadequate treatment or claims amounting to medical malpractice for negligence in treatment or in diagnosis are sufficient to allege a constitutional violation. Id. at 105-06, 97 S.Ct. at 291-92. See also, Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977); Parrilla v. Cuyler, 447 F.Supp. 363 (E.D.Pa.1978); and Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts, Report of Prisoner Civil Rights Committee of the Federal Judicial Center, pp. 37-39 (1980). There are alternative forums for claims of this type. Estelle v. Gamble, supra, 429 U.S. at 107, 97 S.Ct. at 292. In addition to the teachings of Estelle, constitutional litigation in the area of prison conditions has been extensively analyzed by numerous Supreme Court decisions. See, e. g., Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532,49 L.Ed.2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); and Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). In sum, the Supreme Court has affirmed the need for courts to grant the proper discretion to prison professionals who are relatively more expert in the day to day practicalities of managing the contemporary penal institution. See, Bell v. Wolfish, supra, 99 S.Ct. at 1886. Of course, the foregoing admonitions to avoid interference in prison management give way in the face of clearly demonstrated constitutional violations. The constitutional rights of inmates are to be “scrupulously observed.” Id. Further, the policy of deference to prison officials has been held to be accorded lesser weight in the area of medical treatment given that the concerns of prison security are of somewhat lesser magnitude. See, Todaro v. Ward, 565 F.2d 48 (2nd Cir. 1977). It is within this constitutional framework that this Court undertakes a review of the alleged deficiencies in the conditions at MSPH. II. INTRODUCTION MSPH is a five story structure located within the walls at the Missouri State Penitentiary. The first floor houses the surgery department, laboratory, x-ray department, ear-eyes-nose-throat department, pharmacy, hospital records department, a casting room, sick call clinic, an emergency treatment room and the Chief Medical Officer’s office. The second floor of the hospital contains 47 patient rooms, the ICU, a nursing station and the office of the Director of Nursing. The third floor of the hospital has 39 geriatric patient rooms, a nursing station and the office of the civilian supervisor. The fourth floor contains the communicable disease ward. The fifth floor is the psychiatric ward and contains 10 patient rooms. The ground floor of the hospital houses the physical therapy department and the dental department. MSPH is staffed full time by the following civilian personnel. In addition to the full time personnel listed above, MSPH has arrangements for the services of other health care professionals — both within and without the prison. Regarding the former, MSPH retains, part time, the following private, “consultant” doctors who practice in the mid-Missouri region: Also, in January, 1980, MSPH initiated a “consulting service” or the Correctional Medical Services Program which is composed of resident physicians from the University of Missouri Medical Center in Columbia, Missouri (“UMMC”). These doctors perform emergency services, conduct sick call and make hospital rounds. These physicians staff MSPH Monday-Friday from 6:00 p. m. to midnight, and work 9:00 a. m. to 6:00 p. m. on Saturdays and Sundays. When necessary, outside facilities are utilized by the inmates at MSPH through a process of referrals. Inmate patients are referred to UMMC, the Veterans Administration Hospital in Columbia, Missouri, the Ellis Fischel State Cancer Hospital in Columbia, Missouri, and the Fulton State Mental Hospital in Fulton, Missouri. Patients are transferred to these facilities in prison vehicles. In the event an ambulance is required, MSPH has contracted for the use of the ambulance service of Charles E. Still Hospital in Jefferson City, Missouri. MSPH is also a referral institution for emergency cases from various “satellite” correctional institutions, e. g., Renz Farm, Church Farm, Fordham Honor Camp, Moberly, Algoa, among others. III. The testimony and documentary evidence at the two week trial extensively detailed the operation of MSPH both on a policy level and as regards particular treatment received by various inmates. In order to clarify the issues raised in this action, this Court will review the evidence organized in relation to the specific deficiencies alleged by plaintiffs. A. STAFF TRAINING, EVALUATION AND SUPERVISION Plaintiffs have broadly challenged the quality of the staff and the review of staff services at MSPH. 1. Background and Ongoing Training of Medical Assistants and Inmate Personnel Mr. Lyle Fosler Mr. Fosler is the hospital administrator at MSPH. He serves under the Chief Medical Officer in an administrative capacity. He holds a B.S. degree from Northwestern University and has had substantial experience in his field prior to his arrival at MSPH in January, 1974. Mr. Fosler testified that the medical assistants are divided into two classes — -Medical Assistant 1 and Medical Assistant 2. The Medical Assistant l’s are supposed to assist the physicians and other nursing personnel. They perform any number of functions and are supposed to work under the supervision of higher level medical personnel. The Medical Assistant 2’s have greater experience and are used for more responsible assignments, such as assisting in surgery and conducting sick call. As well, the medical assistants are supposed to dispense prescribed medication and administer injections. They are under the supervision of the physicians. Mr. Fosler also testified regarding the background and experience of the medical assistants. Together with Mr. Fosler’s testimony and plaintiffs’ exhibits Nos. r-1 through r-17 and defendants’ exhibit No. 294, the following is a synopsis of the qualifications of the medical assistants: MA l’s 1. Lawrence Benton. Mr. Benton’s background includes 92 hours of college work (partially pre-med) at Albemarle College in Elizabeth City, North Carolina. Mr. Benton has worked as a driver-attendant for an ambulance service, a freight manager, an insurance agent, and as a dark room technician. Mr. Benton has successfully completed the “EMT” or Emergency Medical Services Training Program (81 hours) at UMMC. He received his certificate in April, 1977. He is qualified by the American Association of Physicians’ Assistants as a physicians’ assistant and is a member of the American Association of Trauma Specialists. 2. Robert Briggs. Mr. Briggs is a licensed practical nurse and has had medical training in the military. 3. Calvin Goodwin. Mr. Goodwin has a background in the military. He served as a medical specialist. He also has recently completed two physicians’ assistant courses. 4. Charles Hoose. Mr. Hoose is a high school graduate and has completed the EMT course and is a qualified physician’s assistant. Further, Mr. Hoose has attended numerous workshops and continuing education courses in various medical fields. 5. Arthur Stafford. Mr. Stafford has received medical training in the military and is possessed of a certificate from the Missouri Department of Mental Health certifying that he completed the “Psychiatric Aide One Course”. He has also completed the American Heart Association course on Basic Life Support Technique. 6. James Turner. Mr. Turner has a high school education. His prior employment was with the police department in Robert, Missouri. His* duties were described as “animal control”. He has been a medical specialist in the military. He also has worked at a nursing home. 7. Grover Van Winkle. Mr. Van Winkle’s background was as a medical specialist in the military. He possesses numerous medical training certificates from the United States Army. He also completed an EMT course while in the Army. 8. Melvin Walker. Mr. Walker has a high school education. His records indicated that he was a medical specialist in the military. MA 2’s 1. Edgar Ambler. Mr. Ambler has two bachelor of science degrees in biology and education from Central Missouri State University in Warrensburg, Missouri. Mr. Ambler has an extensive background and experience in the medical service field during his tour of duty in the military. His military career in the medical service area was described as “remarkable” at trial. He possesses numerous citations. He has also worked at Charles Still Hospital in Jefferson City. 2. Floyd Cain. Mr. Cain has worked at MSPH since 1954. Plaintiffs’ Exhibit R-12 reveals that the defendants no longer possess his employment application. 3. Fred Counterman. Mr. Counterman is a high school graduate and has completed the UMMC EMT course. He also served as a medical corpsman in the military. 4. Richard Evans. Mr. Evans has a 9th grade education. He completed a course of 520 hours at the State Hospital No. 1 School for Psychiatric Aides in Fulton, Missouri. He served as a Psychiatric Aide 1 at the Fulton State Hospital for approximately 7 years. 5. William Kessler. Mr. Kessler is a high school graduate. He had worked previously at Humphreys Hospital and at MSPH. From 1973 to 1979 he worked at Charles Still Hospital in the collections department. 6. Vaughn Swearngin. Mr. Swearngin holds an associate of arts degree from State Fair Community College in Sedalia, Missouri. He has worked as a hospital assistant for the State of Missouri and was involved in medical services in the military. 7. Allen Vaughn. Mr. Vaughn’s background is not well documented in the record. His application for employment shows a long tenure with the military and approximately three years as a nursing assistant at a soldiers home. 8. Gerald Wireman. Mr. Wireman is a licensed practical nurse. Mr. Fosler further testified that the medical assistants get the Physicians’ Desk Reference Book and the Merck Manual which are first level symptom and diagnosis references. He stated that the library at the hospital has over 200 volumes of medical books and numerous subscriptions to medical periodicals. Various minutes of civilian staff meetings dating from 1974 through 1979 were admitted into evidence over defendants’ objections. See, Plaintiffs’ Exhibits A-l through A-37. The minutes are few in number. Mr. Fosler stated that such staff meetings were held irregularly because they were not necessary in light of the type of operation at MSPH. Dr. Richard Bowers Dr. Bowers was at the time of trial the Chief Medical Officer at MSPH. He is 32 years old and a doctor of osteopathy. He is not on any hospital staff and has no admitting privileges in any private hospital. His previous employment was at Charles Still Osteopathic Hospital in Jefferson City, Missouri. On September 1, 1977, Dr. Bowers was appointed Assistant Chief Medical Officer at MSPH. He worked directly under Dr. Edwin A. Key, who was Chief Medical Officer until November 1, 1979, when he died. Dr. Bowers succeeded Dr. Key and stated that he had been attempting to secure a new assistant but had been unable to locate one. Dr. Bowers testified that he is familiar with the training of the paraprofessionals at MSPH. He stated that the medical assistants do a considerable amount of their own education. He testified that the medical assistants review films from drug companies on new treatments and medical procedures, and that the medical assistants attend seminars in various medical areas. Dr. Bowers did admit, though, that some of the medical assistants were not as interested as others in keeping up in their field. Further, Dr. Bowers stated that the work of the medical assistants was generally evaluated from time to time. But, he stated that he did not meet with each employee on any regular basis and did not review the medical files for purposes of evaluation. Ms. Lorraine Ernst Ms. Ernst is a registered nurse. She is 61 years old and she has worked at MSPH for approximately 10 years. She has an extensive background in her nursing career. She is the supervisor of all inmate “nurses”. Ms. Ernst testified, in detail, regarding the training that she conducts for the inmate nurses. She stated that all inmates who desire to work in the hospital must complete a training course. The course consists of two hours per day, 5 days per week, of classwork for 10-12 weeks. Each inmate is given a 150 page training book that covers many areas of medical procedure. The course covers medical terminology, ethics, medical record keeping, and daily routine care. She stated that 11 training films are shown to the inmates and that in addition to her lectures, speakers from UMMC and Lincoln University in Jefferson City, Missouri lecture the inmates. The inmates are taught to do eye, ear, nose and throat examinations, enemas, catherization, blood pressure readings, temperatures, bed making, and bathing techniques. They learn anatomy and must learn to draw all important systems of the body. The inmates are given exposure to x-ray techniques, but only inmates with advanced training are allowed to work in the x-ray department. Following successful completion of the course, inmates are assigned to work on the floors for 12 hours a day, from 6:15 a. m. to 6:15 p. m. The training course is offered twice a year and usually 20 inmates enroll. Only 8 or 9 actually complete the training to become inmate nurses. Ms. Ernst revealed on cross-examination that not all inmate nurses had completed the course. Of the inmates who worked on her floor, only 4 have received training in the course. Ms. Ernst compared the quality of care by inmate nurses favorably to regular nursing in a private hospital. She felt that MSPH’s training program for aides of this type was better than comparable programs in private hospitals. Father Thomas Vaughn Father Vaughn is a thirty year old Catholic priest. He had worked as a Nursing Assistant at MSPH from March, 1974, through September, 1974, and from the end of May, 1975, through September 1975. He had worked prior to these times as an orderly at Jefferson City area hospitals. He was not a priest at the time he worked at MSPH. Father Vaughn testified that he merely took a merit examination and became a Nursing Assistant 2. He stated that he received no formal instruction, except for one session on how to conduct himself around inmates. The bulk of Father Vaughn’s testimony indicated his feeling that he was practicing medicine without adequate training and that he worked without any supervision. He stated that he personally administered insulin shots for diabetics, prescribed demerol and other drugs without physician approval, gave penicillin shots for suspected cases of venereal disease, and gave physical examinations with no training in diagnosis. In many of these instances, he testified that he did not record the treatment in the patient’s medical chart. He stated that he often would refuse medication if he didn’t believe the inmate needed it. He testified, at length, about one incident where an inmate patient on the fifth floor had been complaining, hysterically, of seeing a cat in his cell. He stated that the inmate was placed in restraints, given thorazine and sprayed with mace in his face by prison guards. Father Vaughn failed to explain, during questioning by the Court, why he did not call for a doctor during this incident. On cross-examination, Father Vaughn admitted that he had no idea of how the prison hospital was run after September, 1975. He also stated that a doctor was present or on call always. Further, he stated that he had never harmed anyone and that he never exhibited an indifference to a patient’s medical needs. Lastly, Father Vaughn’s application for employment for the.summer of 1975 stated that his duties previously had been “patient care via doctors orders.” He.testified that this had not been a lie when he wrote it. 2. Medical Records at MSPH Dr. Robert Karsh Dr. Karsh is a medical doctor from St. Louis, Missouri. He is a graduate of Washington University School of Medicine. His specialty is internal medicine. He has admitting privileges at Jewish, Barnes and Missouri Baptist Hospitals in St. Louis. He is a member of the American Civil Liberties Union and was retained by plaintiffs to serve as an expert in this case. Dr. Karsh visited MSPH on October 16, 1975, and again on February 12, 1980. He testified that he reviewed over 200 medical charts in preparation for his testimony. His review took 20 hours to complete. He spent a total of 6 hours at the penitentiary hospital. The importance of proper medical charting was emphatically stressed by Dr. Karsh. He stated that a proper medical record should include all things necessary for a patient’s care. Specifically, a medical chart should include the patient’s complaint, tests performed, the physician’s diagnosis, the treatment utilized, and whatever follow up was required. The need for these basic elements is essential for a “continuity of care” should the patient be seen by different doctors in the future. Dr. Karsh’s general conclusions regarding the state of record keeping at MSPH were that the records are grossly inadequate. He was. of the opinion that the records did not contain the minimal elements necessary for patient care. His conclusions followed extensive testimony regarding particular medical charts. In order to properly review the testimony relating to the quality of the medical charts, it is necessary to summarize Dr. Karsh’s observations on various anonymous medical charts produced by defendants. a. Exhibit F-7. This chart lacks sufficient documentation for the use of a nasal gastric tube in conjunction with a barium enema. Dr. Karsh was unable to review the appropriateness of the treatment prescribed. b. Exhibit F-12. The inmate had complained of a wart on his lower right eyelid. The chart reflected that he was sent to a consultant for removal of the wart. No report of what followed was included. Cross-examination' revealed that the report was only kept for what had occurred at MSPH. The inmate had been at another institution and had just been transferred to MSPH prior to his transfer to UMMC for the removal operation. c. F-20. The chart did not reflect any blood tests and no venereal disease history had been produced. The inmate had been convicted of rape and sodomy and was seen at the hospital for a skin rash. Dr. Karsh considered this to be a possible symptom of syphillis and was surprised, given this inmate’s background, that no blood tests were indicated in the record. d. F-26. This inmate was admitted to the penitentiary in 1970. In September, 1975, he was diagnosed with gonorrhea. He was given antibiotics. No follow up was recorded in the chart. His record shows he returned to sick call numerous times and he received differing treatments for the same general symptoms. Dr. Karsh concluded that, there was. a need for an investigation of any sexual contacts the man may have had and to properly follow up to determine if he had been cured. e. F-27. The chart reflects three contractions of gonorrhea. No follow up was reflected in the chart to determine if the inmate had ever been cured of the disease. f. F-102. This patient exhibited symptoms of an ulcer. In January, 1979, an upper G.I. test was performed. In March, 1979, the patient was suspected of being a malingerer. Dr. Karsh felt'that the patient could have been a malingerer or he could have truly have had an ulcer. The record does not resolve the issue. g. F-103. This patient’s chart revealed that no heart trouble was indicated in the entrance physical given to him upon his arrival at the penitentiary. He entered the prison in 1971. In 1975, an EKG exam was performed and it showed some irregularities. In June, 1976, strange heartbeats were recorded. In September, 1976, the EKG revealed that the inmate had severe damage to a wall of his heart. There was no evaluation of the EKG in the medical chart. The inmate was' found dead in his cell on February 7,1977. A letter from Dr. Key to Warden Wyrick indicated that the patient had a long history of heart disease, but no documentation of his condition was indicated in the record. No record of an autopsy was included. It was learned on cross-examination that all autopsy reports were kept under lock and key in the Chief Medical Officer’s office. h. F-104. Dr. Karsh noted that an entry dated May 23, 1979, stated that this patient was a post-operative “gold bladder” case. Dr. Karsh observed that this patient had a high blood pressure following his operation, and that on a number of occasions, his medical chart does not reflect blood pressure having been taken. The chart indicates that on September 11, 1979, an analgesic was prescribed, but no blood pressure was taken. On November 21, 1979, enderal was prescribed, which is used for heart pain according to Dr. Karsh, but the record did not reflect why it had been prescribed. On December 19, 1979, the patient had an abnormal heart beat and an EKG was performed, but again, no blood pressure reading was indicated in the record. On December 21, 1979, an EKG test showed that there had been injury to his heart. Dr. Karsh was also quite critical of the record insofar as it indicated that the patient’s gall bladder was removed without proper diagnosis. The record merely shows that a dye test was performed and that the gall bladder was “non-visualized” on the x-ray. Dr. Karsh stated that there can be a number of reasons for non-visualization, and as such, the test should be performed more than once. Vomiting, failure to take the dye pills, or diarrhea are just some of the causes of non-visualization. Dr. Karsh was critical of the surgeon’s (Dr. Alan Doerhoff) post-operative note in that it failed to describe what he had done. Dr. Karsh further noted that it was unusual that no pathology report was included in the file. In fact, a pathology report was prepared and had been sent to Dr. Bowers. The report indicated a perfectly healthy gall bladder. During Dr. Bowers cross-examination, it was revealed that the report had been buried in Dr. Bower’s desk drawer. i. F-106. This patient’s record showed 10 visits on an out-patient basis for “back pain”. The record showed that he was being treated for a back problem but there was no evidence of any x-ray having been performed. j. F-lll. This inmate’s admission examination at the time he entered the prison indicated that he was deaf. There was no entry in the chart about whether the inmate had a correctible form of deafness or whether a hearing aid would be effective. Dr. Karsh toured MSPH for two hours the evening prior to his testimony and reviewed the charts of patients who were presently being treated. a. Patient K. This inmate was on the fifth floor of the hospital for evaluation by the psychologist, Mr. Gross. He was being given lithium and a drug referred to as INH which is used to treat tuberculosis. Nothing in the chart indicated why he was receiving INH, but on cross-examination it was revealed that this patient had been exposed to tuberculosis. b. Patient G. He was admitted on February 8, 1980, for hepatitis. The chart reflected that he had not been seen by a doctor for 4 days, and "that no laboratory work had been performed. c. Patient C. This patient had diabetes. There was no admission history, although there were copious notes about blood sugar and urine. d. Patient G. Admitted for cardiac evaluation on February 9, 1980, this inmate’s chart reflects that the first note on his heart condition was not placed in the record until February 11, 1980. e. Patient C. This unusual patient was post-operative for colon cancer. This patient first had colon cancer surgery at MSPH in 1967. Dr. Karsh noted that it is highly unusual for anyone to survive this long once having undergone surgery for colon cancer. The chart following the second operation does not reflect any postoperative visit by the surgeon. In summary, Dr. Karsh concluded that the records were woefully incomplete and inadequate, that the skill of those making the entries in the records was very low, and that either these people had not been trained or they had forgotten what they had learned. He noted that virtually all entries were unsupervised, and there were very few that had been countersigned by a physician. Dr. Karsh felt that the consequences of such poor record keeping could pose danger and a potential for tragedy. His opinion was that the records were evidence of very poor care and of negligence in certain instances and a deliberate indifference to serious medical needs in others. He admitted that he was comparing the level of hospital care in the penitentiary hospital with the equivalent level of care that he was familiar with in his private practice. Further, he based his testimony on the premise that inadequate records result in inadequate care. Dr. George C. Gardiner Dr. Gardiner is a medical doctor from Philadelphia, Pennsylvania. He is a psychiatrist at present. He received his medical degree from Tufts University in 1961. Along with excellent credentials in the field of psychiatry, Dr. Gardiner staffs the Philadelphia State Hospital. He has a working familiarity with prison hospitals. In Í972, he worked on a health law project under the aegis of the University of Pennsylvania Law School which investigated the delivery of health care in four state prisons in Pennsylvania. He wrote an extensive report following the study. He was also familiar with the use of paraprofessionals in delivering medical services during his tenure as director of the Southeast Philadelphia Health Center. Dr. Gardiner toured MSPH on October 16, 1975, and again the evening before his testimony. On the issue of medical records, Dr. Gardiner testified that he had examined over 80 medical records and his general conclusion was that the level of record keeping was grossly inadequate. He stated that he found a repetitive pattern of such poor histories and physical examinations that he could not reconstruct the patients’ medical backgrounds. He found a lack of diagnosis and mere entries of medications prescribed without a reason for their application. Dr. Gardiner concluded that the supervision of the medical staff’s record keeping function was inadequate. Dr. Gardiner stressed the concept of “continuity of care”. Briefly, he testified that adequate records are essential in order to provide future medical personnel with an accurate understanding of a patient’s history, diagnosis, and mode of treatment. In his opinion, the minimum contents of a medical record should include: (1) chief complaint; (2) past medical history; (3) physical examination; (4) laboratory studies; (5) treatment; and (6) progress notes of the physician. He stated that there is a strong connection between the level of care provided and accurate medical records. He further observed that poor record keeping indicates an atmosphere of unconcern. Dr. Gardiner commented on a number of specific cases that he observed during his evening visit to MSPH. On the fifth floor, Dr. Gardiner examined two patients. His conclusions are summarized as follows: Patient C37781. This patient’s chárt reflects that he was receiving a drug to counteract the effect of tranquilizers. The chart did not reflect that the patient had received any tranquilizers. Also, there was no indication of the patient’s medical problem. This patient was also receiving lithium — a drug used to treat depression. Dr. Gardiner noted that no blood serum lithium level tests were indicated. Dr. Gardiner stated that these tests are essential for proper treatment with this drug. These tests should be performed daily at first, and then with decreasing frequency. Patient C36440. This patient’s chart showed the administration of the drug thorazine without a physician’s oral or written order. The patient’s sick call records indicated that he had been on the drug for a long time, but no reason was advanced for its use. Also, there was no reason given in the chart for the patient’s admission to the psychiatric ward. On the fourth floor, Dr. Gardiner inspected the chart of a patient admitted for hepatitis. The chart reflected no past history, and no evidence of laboratory tests performed, other than a liver enzyme test. Dr. Gardiner said he would have expected blood tests and urinalysis tests to have been performed. With regard to the anonymous charts supplied by defendants, Dr. Gardiner made these observations: a. Exhibit F-47. The patient was admitted complaining of anxiety. No diagnosis was present. A drug was prescribed that was not ordered by a doctor. b. Exhibit F-77. The chart indicated numerous visits to sick call for bad nerves and insomnia. Many of the entries were illegible and there was little evidence of follow-up work. On cross-examination, Dr. Gardiner agreed that this patient had not necessarily been denied care and that many of his disagreements were based on a difference of medical opinion. c. Exhibit F-110. This patient was given powerful antidepressant drugs over a long period with no apparent reason indicated for their use. On June 26, 1978, the patient was given an unspecified dose of such a drug. Dr. Gardiner stated that the dosage given is an essential part of a medical chart entry — especially here given the toxic effects of this particular drug. No reasons appeared for the changes from one drug to another and many of the doses were too low to have been effective if this patient truly suffered from depression. d. Exhibit F-29. This inmate had been a patient on the fifth floor. Dr. Gardiner found the record to be inadequate to support the course pursued. Particularly, Dr. Gardiner failed to locate a proper basis in the chart for the use of physical restraints. e. Exhibit F — 111. This chart contains entries for the year 1979. Dr. Gardiner was impressed with the entrance physical examination form and the quality of the entries on this chart. f. File of Fred Pridgett. This file was of great concern to Dr. Gardiner. There were repeated admissions to the psychiatric ward noted with no reasons indicated. There were medications prescribed by verbal order. Specifically, Dr. Gardiner was disturbed by an entry written by medical assistant Richard Evans on September 30, 1978. Dr. Gardiner felt that such an entry reflected a lack of training and professional objectivity — even given the difficult nature of this patient. There was no evidence presented that Mr. Pridgett was ever subjected to Mr. Evans’ proposals. The general opinions advanced by Dr. Gardiner were that serious medical needs at MSPH were not being adequately assessed. He stated that many needs are probably unknown because of the state of the records. He concluded by noting that the poor state of record keeping is directly attributable to the level of staff training and supervision. Dr. Barbara Starrett Dr. Starrett is a medical doctor from New York City where she now practices as an internist. She is former head of medical services at Riker’s Island Correctional Institution which serves the New York metropolitan area. The facility houses a pretrial and misdemeanor population of both men and women. Dr. Starrett has a great deal of experience in the delivery of health care to a prison population. Dr. Starrett toured MSPH on February 5, 1980, for three hours. She stated that she read several medical records, depositions, and the standards for health care in correctional institutions of the Law Enforcement Assistance Administration, the American Correctional Association, and the United States Department of Justice. Concerning medical records, Dr. Starrett found them to be totally inadequate. She found that many charts lacked data collection and diagnosis. Her opinion was that such medical records could lead to bad health care through the risk of excessive or inadequate treatment. She felt that the medical records and the hospital as a whole could be improved by instituting a program of professional standards review conducted by an outside evaluation group. Further, Dr. Starrett testified that no inmates were used to work in the facility at Riker’s Island. She stated that the information in the medical charts was confidential and could be put to nefarious uses by other inmates. Dr. Starrett did recognize, however, that part of the reason for the nonuse of inmates was that they were at Riker’s Island for .a period of one year or less. Dr. Bowers testified that the state of record keeping had not changed at MSPH since this suit was commenced. The Court asked if there was more effort exerted currently to keep better records. Dr. Bowers answered that things have remained unchanged. Dr. Bowers testified that there is no system of quality control or peer review. He stated that in his opinion, the records are adequate. He rejected the notion that the quality of medical care is dependent upon the quality of the medical records. Dr. Bowers further testified that medical records in a penitentiary hospital did not require the same degree of accuracy as in the general civilian population. Nevertheless, Dr. Bowers did recognize the importance of medical records at MSPH in light of the rotation of different doctors through the facility. According to Dr. Bowers, there are no problems with some inmates having access to the medical files of other inmates. He indicated that he was unaware of any difficulties that could arise. Dr. Lawrence Giffen Dr. Giffen is a doctor of osteopathy in Jefferson City, Missouri. He is one of the consultant physicians at MSPH. He provides dermatology services. Dr. Giffen goes to MSPH once every two to three weeks. He treats rashes, skin lesions, etc. Also, he performs rectal surgery, biopsies and circumcision. Dr. Giffen testified that the medical records at MSPH are adequate. Although, on cross-examination, it was revealed that he had stated in an earlier deposition that he thought there could be improvements in the medical records. Dr. Pasquale Ciccone Dr. Ciccone is a medical doctor who was formerly the Chief Administrator for the United States Medical Center for Federal Prisoners in Springfield, Missouri. Prior to serving as Chief Administrator, he had been Chief Medical Officer at various prisons in the United States. There were 17 staff doctors at the Springfield facility and it had a 650 bed capacity. The facility provides intensive care services for the entire federal correctional system. He toured MSPH on January 10, 1980, and on February 5th and 6th, 1980. He reviewed approximately 10 medical charts in preparation for his testimony. Dr. Ciccone stated that the form of medical card used for sick call was adequate. During his visit to the second floor of the hospital, he found the nursing notes in four charts to be adequate. He felt that more documentation could have been included. Also, he thought that there should have been more doctors’ progress notes. Dr. Ciccone did not agree in the abstract that bad medical charting would lead to poor medical care. But, he testified that in a circumstance where many physicians are treating the same patient, the need for proper charting is increased. Dr. Ciccone also testified regarding the evaluative reviews that were conducted at the Springfield complex. He stated that the method used to conduct the review was by selecting random medical charts and evaluating them and discussing what the medical expectations would have been for the patients. Thus, he concluded that medical records are an integral part of such a review process. Mr. Wendell Schleuter Mr. Schleuter is the supervisor of medical files at MSPH. Prior to this employment, Mr. Schleuter was a food store manager for 29 years. He has had no specific training in hospital record keeping, and has never had a medical course. He stated that the door to the medical records room is kept locked and that guards and one medical assistant have keys. There are two inmates who work in the medical records department and do most of the typing. 3. Surgery Performed by Nonphysicians The plaintiffs have challenged the use of non-physicians to perform surgery except in emergency situations. Mr. Edgar Ambler Mr. Ambler has been responsible for the surgery department since February 26, 1978. He “preps” the operating room prior to all procedures. Also, he preps patients who are to undergo surgery at MSPH. During cross-examination, it was revealed that Mr. Ambler and other medical assistants had been performing surgery pri- or to and including 1978. Mr. Ambler described one incident that apparently led to a change in the surgical policies at MSPH. He stated that he had opened the leg of a “Mr. Douglas” in order to remove a bullet. The operation had been authorized by both Drs. Key and Bowers. The bullet slipped farther into the patient’s leg causing Mr. Ambler to abort the procedure. The man was transferred to UMMC and the bullet was removed there. Mr. Ambler testified that following this experience, an oral directive came from the warden forbidding medical assistants from performing surgery. Mr. Ambler stated he had performed more than 12 operations mostly for the removal of warts and moles. On September 11, 1978, Warden Donald Wyrick issued a memorandum that forbids the practice of allowing medical assistants to perform suturing on employees of the prison who were receiving treatment in the hospital. Mr. Ambler testified that the new policy has been interpreted to apply to inmate patients as well. Mr. Ambler further revealed that an inmate physician — “Dr. Bill Carlos” — had performed surgery. Dr. Giffen indicated that he knew of minor suturing that had been performed by both Dr. Carlos and another inmate physician — “Dr. Kenneth Kelsey.” B. ADEQUACY OF PRESENT STAFFING Plaintiffs seek additions to the staff at MSPH in a variety of areas. 1. Need for Custodial Personnel to Transfer Inmates Dr. Bowers testified generally about the referral system in use at MSPH. Basically, he stated that if a physician decides that a patient is in need of treatment at some other facility, then the patient is transferred. Dr. Bowers stated that in an emergency, a referral can be arranged in 30 to 45 minutes. If the situation is not an emergency, then scheduling can take up to a week to arrange for transportation and custodial personnel. In Dr. Bower’s view, the prison administration has been very cooperative and delays have been very short. He stated that there is no policy that limits the number of returns to an outside hospital. Dr. Bowers indicated that there were 339 referrals to UMMC in 1978 and 262 in 1979. He further stated that five to ten inmates travel to UMMC each week on an outpatient basis. One patient is receiving kidney dialysis and travels to UMMC three days each week. Plaintiffs complain that a lack of custodial personnel impedes access to these outside medical facilities. To support their contention, they cite various occurrences involving inmates requiring treatment at outside facilities. Mr. William Helming Mr. Helming was formerly an inmate at MSPH. He is now 52 years old and lives at a retirement lodge in Columbia, Missouri. He is afflicted with a diséase known as vasculitis. Mr. Helming testified that he was removed from UMMC where he was receiving “good” treatment and taken back to MSPH. He stated that he was supposed to have been returned to UMMC within one week, but that he was not returned for two weeks. Mr. Helming testified that his condition substantially worsened during the two weeks. Dr. Kim Coulter Dr. Coulter is a medical doctor at UMMC. He has treated Mr. Helming since March 1, 1979. Dr. Coulter testified that upon his first examination of Mr. Helming, he observed skin lesions over portions of Mr. Helming’s body. Ulcers had formed at various pressure points — the inside of both ankles and on his left calf. He weighed 122 pounds. Mr. Helming was allowed to remain at UMMC through March 29, 1979. Dr. Coulter stated that he had not completed his course of treatment, but Dr. Bowers had ordered Mr. Helming’s return to MSPH citing a lack of guards available to supervise Mr. Helming at UMMC. Dr. Coulter testified tliat he would have preferred to have Mr. Helming remain at UMMC. Dr. Coulter sent word to Dr. Bowers that he wanted to see Mr. Helming every week. The first return appointment was set for April 5, 1979. Mr. Helming did not return until April 12, 1979. Dr. Coulter indicated that he was deeply troubled by Mr. Helming’s condition upon his return. The lesions had grown much larger and there was dead tissue inside of the lesions that had a rotting smell. Dr. Coulter found new lesions on his palms, elbows, and in his mouth. Further, Mr. Helming had blood in his stool. He had lost 12 pounds in the two weeks he had been at MSPH. In Dr. Coulter’s opinion, Mr. Helming was near death. Dr. Coulter felt that at a minimum, good medical practice would have dictated the surgical removal of the dead tissue. Dr. Coulter wás also critical of the medical record compiled at MSPH that did not detail the rather dramatic change in Mr. Helming’s condition. In response to questioning by the Court, Dr. Coulter would not characterize Mr. Helming’s treatment at MSPH as negligent, nor did he feel malpractice had been committed because of his unfamiliarity with the legal definitions of these terms. He stated that he would have hoped for more aggressive management of the quickly accelerating manifestations of the disease. Vasculitis is an extremely rare disease and it was learned on cross-examination that it can flare up very quickly with no warnings. There was no dispute that Mr. Helming had been receiving all of the medications prescribed by Dr. Coulter during the two week stay at MSPH. Mr. Richard Page Mr. Page is serving a term in the penitentiary for manslaughter and assault that began on December 29, 1977. Since September, 1978, Mr. Page has had a chronic condition of blood in his urine. He testified that he appeared at sick call numerous times and was given a variety of pills — none of which accomplished anything. On November 4, 1978, he was admitted to MSPH. He remained for four months. A large number of tests were performed and he was sent to UMMC on a number of occasions for examination by specialists. Nevertheless, his medical records reveal that Dr. Bowers had difficulty in sending him to UMMC in February 1979, because of a “custody coverage” problem. Apparently, no diagnosis was ever reached. Mr. Page claims that he still possesses the condition. He testified that his treatment was good at UMMC, but that he has not been back since April, 1979. He further testified that he was supposed to go back in August, 1979, *but was not sent back. Dr. Bowers stated that Mr. Page’s condition is extremely unusual. He testified that the doctors at UMMC recommended that no treatment be undertaken, that the condition usually disappears on its own. 2. The Need for Two Full Time Physicians or in the Alternative, a Continuation of the Correctional Medical Services Program The Correctional Medical Services Program is currently scheduled to continue through July 1, 1980. Warden Wyrick testified that if two additional physicians can be hired, then the program will not be renewed. Otherwise, he stated the program will be continued. He felt that two full time doctors, a continuation of the Correctional Medical Services Program, and use of the consultant physicians would be the best arrangement. The warden stated that he is actively seeking a second physician for employment. He further stated that he has been very impressed with the quality of the physicians from the Correctional Medical Services Program. Dr. Bower’s opinion was that the hospital could function with one doctor and the consultants, but that two physicians would make things more comfortable. Dr. Bower’s testimony did reflect an enormity of tasks that he must perform without assistance. He testified that prison officials had been actively seeking an applicant to fill the vacant post of Assistant Chief Medical Officer. Dr. Starrett expressed the opinion that at ' least two full time physicians are necessary at a prison the size of Missouri State Penitentiary. 3. The Need for Registered Nurse Coverage 24 H<furs a Day on the Second Floor At present Ms. Ernst staffs the second floor during the second shift at MSPH which runs from 8:00 a. m. to 3:30 p. m. During the first shift which runs from 11:45 p. m. to 8:00 a. m. and the third shift which runs from 3:30 p. m. to 11:45 p. m., no registered nurses are on duty. During the first shift, just one medical assistant is assigned, and during the third shift, two medical assistants are posted. Plaintiffs contend that a registered nurse is needed to staff the second floor 24 hours a day. Plaintiffs argue that the one or two medical assistants are not sufficient to adequately cover the hospital should an emergency arise. The testimony indicated very little demonstrating the need for a registered nurse as opposed to a medical assistant to be on duty 24 hours a day. In the opinion of Dr. Starrett, any medical facility that cares for heart patients or performs major surgery should have a doctor or physician’s assistant round the clock. Dr. Ciccone testified that at the Springfield facility there were no doctors on duty 24 hours a day, but they were always available by telephone. He did not indicate what the nurse scheduling policies were at that facility. Mr. Ambler testified that with regard to doctors, they are always on call via telephone. Ms. Ernst testified that there had been two other registered nurses working at MSPH, but they were no longer there. She did not testify regarding their work schedules. Ms. Ernst admitted that it would be desirable to have more registered nurses at MSPH. 4. The Need for a Registered Nurse or Medical Assistant to Staff the Intensive Care Unit 24 Hours a Day. The ICU is now staffed by inmate nurses who basically just observe the progress that the patients are making. Ms. Ernst testified that such coverage is 24 hours a day and is supplemented by medical assistant, nurse and physician visits. Plaintiffs allege that the inmate nurses’ unfamiliarity with advanced life support techniques could jeopardize these patients in an emergency. As indicated above, there is always a medical assistant on duty in the hospital and the doctor is always on call. 5. The Need for a Licensed Physical Therapist The physical therapy department is currently staffed by an inmate named “Jones”. Mr. Jones is supervised by the medical assistants and by Dr. Bowers. Dr. Bowers indicated that Mr. Jones has had some rehabilitative training. Mr. Fosler testified that the only training that Mr. Jones has received has been from the medical staff at MSPH. Prior to Mr. Jones’ tenure, the department was staffed by another inmate — a Mr. Bill Roy Douglas. Dr. Bowers testified that he was unaware of Mr. Douglas’ background. The primary function that Mr. Douglas performed was providing whirlpool baths and moist heat treatments. Mr. Clarence Hunter Mr. Hunter has been at the penitentiary for four years on a conviction for assault. Mr. Hunter is paralyzed from the waist down following an altercation with other inmates at the penitentiary during which his spinal cord was severed with a screwdriver. Emergency surgery was performed at UMMC and he was given physical therapy at the Rusk Rehabilitation Center at UMMC. At MSPH, Mr. Hunter testified that he has received physical therapy. He stated that the department had been improved during the year prior to trial. He now gets exercise and whirlpool baths three days a week and goes to the exercise yard. He admitted that he had refused to take physical therapy on various occasions. Dennis Mercado Mr. Mercado is also paralyzed from the waist down. A 1975 gunshot wound caused the injury prior to his admittance at the penitentiary. He is serving a sentence for robbery. Mr. Mercado has been at the penitentiary for approximately three years. During that time, he has been to UMMC 16 times for treatment. He has been prescribed leg braces and can now walk to a limited degree. He testified that he has received physical therapy at MSPH. MSPH also supplies him with wheelchairs. C. PHYSICAL PLANT AND HOSPITAL PROCEDURES Plaintiffs have attacked numerous hospital procedures and have alleged that certain physical capabilities of the hospital plant are deficient. 1. Life Saving Equipment in ICU The ICU is on the second floor of the hospital. The “crash cart” which contains such crucial life saving equipment as a defibrillator, a heart monitor, and suction equipment is kept in the surgery area on the first floor. There was unanimity among plaintiffs’ experts that keeping such equipment in the surgery area posed a risk to patients in the ICU. See, test, of Drs. Gardiner & Starrett. Dr. Bowers testified that the crash cart can be moved from the surgery area to the second floor in less than two minutes. He testified that the cart can not be kept on the second floor because of vandalism and theft problems. Mr. Ambler testified that no drills had ever been performed to see how long it would take to move the equipment. Dr. Bowers felt that the arrangement did not pose a risk to patients because there is always an inmate nurse in the ICU and a civilian on the second floor who would notify the appropriate medical personnel. Nevertheless, Dr. Bowers did recognize some problems with the current arrangement. For instance, the doors between the first and second floors are locked many times and two persons are required to move the equipment. There is an intercom between the two floors, but no “panic button” for an alarm to signal an emergency in the ICU. Ms. Ernst testified that the last hospital she had worked at had a similar arrangement and it took an equivalent amount of time to move the equipment. 2. The Need for Call Buttons The hospital does not possess an electronic signalling system for patients to summon assistance as is commonly found in civilian hospital rooms. The plaintiffs argue that nonambulatory patients could be threatened by the lack of such a system. Dr. Gardiner voiced concern over the potential for tragedy should a sick patient be unable to call for help. This could especially be a problem given that some of the doors to the rooms are locked at night. Dr. Gardiner knew of some prison hospitals that used call systems. Ms. Ernst testified that hotel-type desk bells are utilized when required. Dr. Ciccone stated that there were call buttons on one floor of the Springfield facility, but that they were not particularly desirable because the patients regularly broke them. It was his understanding that the hospitals at the federal penitentiaries at Leavenworth, Kansas, and Atlanta, Georgia, did not have such devices. 3. Sick Call Procedures Prior to the advent of the Correctional Medical Services Program at the end of January, 1980, sick call was conducted from 8:00 a. m. to 11:00 a. m. If an inmate wanted to go to sick call, he would sign up the night before or make arrangements to go in the morning. During this morning sick call, Dr. Bowers testified that anywhere from 100 to 125 inmates would report each day. Since the new program has gone into effect, the hours during which sick call is conducted have been changed to the evenings. This change has caused a reduction in the number of inmates appearing. Now, 50 to 60 inmates are reporting for sick call. Both Dr. Bowers and Warden Wyrick stated that the decline in numbers of inmates reporting for sick call is attributable to the fact that the new hours conflict with the inmates’ recreational periods. Dr. Bowers testified that in 1978, over 46,700 inmates appeared at sick call. In 1979, over 40,800 appeared. Dr. Bowers is of the opinion that to V2 of all inmates reporting to sick call are malingerers. He has also observed that 50% of the reporting inmates are seeking over-the-counter type drugs. Dr. Bowers indicated that it is a difficult task to separate legitimate complaints from the frivolous ones. Sick call is conducted by the medical assistants. They are responsible for screening the complaints. If a complaint appears to have merit requiring a doctor’s attention, then the inmate is put on physician’s sick call to see a doctor. According to Dr. Bowers and Mr. Fosler, if any inmate demands to see a physician, his request will be honored. Plaintiffs have challenged this screening process alleging that the medical assistants are unqualified to do diagnosis thereby necessitating the writing of “protocols” for common ailments for use by the medical assistants during sick call and the use of a registered nurse to supervise the" medical assistants during sick call. The qualifications of the medical assistants have been fully explored above, but there was evidence on the question of the use of paraprofessionals to screen inmates’ medical complaints. Dr. Starrett testified that the use of paraprofessionals was a good concept. She testified that such personnel were used at Riker's Island for this purpose. However, she stressed the need for close supervision. She further stated that there was a need for protocols or flow sheets that the medical assistants could use to quickly assess symptoms. Dr. Starrett observed such materials in the surgery department, but did not see them at sick call. Dr. Ciccone also testified that paraprofessionals were used at the Springfield facility to conduct sick call. He concluded that the use of medical assistants at MSPH was appropriate as long as proper supervision was supplied. Dr. Bowers’ testimony indicated that there are standing orders which serve as protocols at sick call. Also, the medical assistants use the Physician’s Desk Reference Book and the Merck Manual to assess physical symptoms. Further, he indicated that sick call did not require a high degree of medical awareness. He felt that the medical assistants were adequately supervised. Sick call is apparently conducted in a large room which contains a number of desks that the medical assistants sit behind during the interviews. Inmates must stand in front of the desks and relate their complaints. Plaintiffs assert that such practices do not afford adequate privacy. Mr. Richard Richards Mr. Richards is incarcerated on a conviction for murder of a police officer. He works as an industrial welder in the prison industries. He testified that he has a heart condition and that he had been to sick call many times to no avail. Following an on the job injury, Mr. Richards was diagnosed