Full opinion text
FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT DIANA E. MURPHY, District Judge. Plaintiffs Anthony DeGidio, James Murray, and Antti John Haavisto brought this class action on behalf of themselves and other similarly situated plaintiffs. On June 13, 1985 the court certified a class for purposes of injunctive relief. The class is comprised of “persons who are, or have been, incarcerated at the Minnesota State Prison at Stillwater, Minnesota who contract, or had, tuberculosis or develop positive reactions demonstrating exposure to tuberculosis while being held there.” DeGidio v. Perpich, 612 F.Supp. 1383, 1391 (D.Minn.1985). They seek injunctive relief to revise the current system of health care delivery and prevent the future spread of tuberculosis infection and disease at the Minnesota State Prison at Stillwater. Defendants are Orville B. Pung, Minnesota Commissioner of Corrections; Sister Mary Madonna Ashton, Minnesota Commissioner of Public Health; and Robert Erickson, warden of the Minnesota State Prison at Stillwater. This action is brought under 42 U.S.C. § 1983; jurisdiction is alleged pursuant to 28 U.S.C. § 1343. Plaintiffs allege that defendants’ conduct in response to the outbreak of tuberculosis at Stillwater Prison constitutes cruel and unusual punishment of the class members. Plaintiffs also claim that defendants have violated their due process rights by failing to comply with a prior consent decree entered in the case of Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977). Trial to the court was conducted over thirty-one days. Voluminous exhibits and extensive testimony were received. Post trial briefs were also submitted. Now having evaluated and considered the testimony of the witnesses and all the evidence produced at trial, as well as the parties’ arguments and the post-trial submissions, the court enters in memorandum form its findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). The Parties The named plaintiffs, Anthony DeGidio, Jr., Antti Haavisto and James Murray are all present or former inmates of the Minnesota Correctional Facility-Stillwater (Still-water). They represent a class of Stillwa-ter inmates or former inmates who contracted tuberculosis or developed positive reactions demonstrating exposure to tuberculosis after being confined there. Since 1982 there have been nearly a dozen inmates diagnosed with active tuberculosis disease, and over one-third of the inmate population has been infected. During this time, there have been periods when the disease has apparently waned, only to break out again with ever-broader exposure throughout the prison. Plaintiffs seek injunctive relief to improve their medical care and to institute an effective program of tuberculosis detection, control, and prevention at Stillwater. The Department of Corrections is an administrative agency within the executive branch of the State of Minnesota. Defendant Pung has been Commissioner of the department since 1982. Among his duties is operation of nine state correctional facilities, including Stillwater. As Commissioner, Pung is ultimately responsible for the medical policies, procedures, staffing and procurement of equipment necessary to deliver health care to inmates. He is further responsible for implementing court orders affecting the administration and operation of the prison and for otherwise discharging statutory and regulatory duties regarding the prison. Defendant Erickson has been warden of Stillwater since 1980. He was associate warden from 1976 through 1980. He is responsible for the day-to-day operations at Stillwater and ultimately controls most of its administration and operation. Defendant Ashton directs the Minnesota Department of Health, a state administrative agency. The department operates a tuberculosis control unit within its disease prevention and health promotion division. That unit has directed much of the prevention, control, and educational efforts at Stillwater since the tuberculosis outbreak in 1982. It continues to counsel Stillwater staff regarding prevention and control of infectious diseases. Tuberculosis Infection and Disease Tuberculosis is an infectious disease caused by the transfer of tubercle bacilli. It is transmitted through airborne droplets expelled from the lungs of an infected person through talking, coughing, sneezing, or the like. Tuberculosis infection usually results after a prolonged period of sharing air with someone contaminated with an active case of infectious pulmonary tuberculosis. It usually manifests itself in the lungs, but may occur in other organs such as lymph nodes or bones. Infectious tuberculosis disease is not common in the United States. It is most prevalent among members of lesser-advantaged socio-economic classes. Prisons are considered high risk environments for the transmission of tuberculosis. There is a distinction between tuberculous infection and disease. Tuberculous infection means that tubercle bacilli have become established in the body, but are dormant. A person who is merely infected is not infectious to others. Infectiousness develops when the infection breaks down into active disease and becomes established in the lungs. This breakdown into active disease can usually be prevented by a course of preventive antibiotic therapy. Left untreated, only a small percentage of infected persons will ever go on to develop the active disease. The risk grows for untreated infected persons, however, when certain other conditions develop. These conditions include diabetes, HIV infection (AIDS), or other illnesses which cause im-munosuppression. Although the risk is greatest in the first year after infection, it is life-long without antibiotic preventive therapy. The preferred screening tool for tuberculosis is the Mantoux skin test. The Man-toux test involves injecting a precise amount of purified protein derivative of tuberculin (PPD) under the skin on the patient’s forearm. The test site is examined 48-72 hours later. A hard swelling reaction, or induration, of 10 millimeters or more is considered significant and means that the individual is infected with tuberculosis. A reaction of less than 10 millimeters in an adult is considered not positive. Mere redness, or erythema, without induration is not generally considered evidence of infection regardless of its size. Once a person has been infected, there can be an eight to ten week period of latency before a positive skin test will result. A single test is therefore not sufficient to rule out infection. A follow-up skin test conducted ten weeks after the initial test is necessary and required by accepted medical standards to rule out infection from a recent contact. Although the Mantoux test is the best tool available for screening for tuberculosis, both false positives and false negatives are possible. False positives can occur if too much tuberculin is injected or if the tuberculin is too strong, as has sometimes been the case with the Parke-Davis brand PPD. False negatives are possible if the tuberculin is injected too deeply or not deeply enough. A false negative can also occur if the individual was only recently infected (within eight to ten weeks) or if the individual was infected long ago and the infection has waned. If the negative reaction to the Mantoux is the result of waning, the test can reawaken the individual’s sensitivity; on a subsequent Mantoux test the result may be a positive reaction. Such an occurrence — a non-significant reaction followed by a positive reaction — can make it appear that the individual is a recent converter when in fact the infection is from the past. This “booster” phenomenon can occur even after a second non-significant reaction. The test results are thus not always correct in indicating the presence or absence of infection. The onset of active tuberculosis disease is generally gradual and often includes such symptoms as loss of weight, loss of appetite, fatigue, night sweats, chills, coughing, elevated temperature, and production of sputum which may be bloody. The symptoms may also be nonspecific, however, or a person may even be asymptomatic. Symptoms often mimic other diseases such as influenza, bronchitis, pneumonia, or lung cancer. The degree of a person’s infectiousness usually correlates to the length of time that active disease is present in the lungs. Typically the tubercle bacilli invade lung tissue and dissolve it over time, creating cavities. Each cavity can contains billions of bacilli, some of which are transmitted into the air each time the person expels air. The quantity of phlegm or sputum produced by the infected person is one rough measure of infectiousness — the more sputum coughed up the more infectious the person is. The better measure of infectiousness is done clinically, by examining a stained sputum smear and counting the number of acid-fast bacilli present. Active tuberculosis disease is formally diagnosed by culturing sputum samples on a medium for several days. If tuberculosis bacilli are found, the person is considered to be a bacteriologically confirmed active case. A positive culture does not provide a precise measure of infectiousness, however. Once tuberculosis infection is suspected through a positive Mantoux test, the standard medical practice is to order a chest x-ray to determine if active disease has developed. Tuberculosis disease can be revealed on x-rays through nodules, cavities, or infiltrates. The disease can mimic many other pulmonary diseases, however. While an x-ray may trigger suspicion that active disease is present, a definitive diagnosis is made only bacteriologically, through a sputum smear or culture. Sputum smears are not typically ordered unless abnormal or questionable x-rays are produced. If there is no sign of active disease on the x-ray, the person generally is started on a course of antibiotic treatment with isoniazide (INH) unless counterindicated. Persons with positive Mantoux tests and normal x-rays who are eligible for INH are generally started on the drug without sputum tests. The standard preventive therapy is a regime of nine to twelve months of INH. An infected person who completes a course of INH preventive therapy is unlikely ever to develop the active disease. Some patients are not candidates for INH preventive treatment, however. INH can cause liver toxicity or a chemically induced hepatitis; it is not generally prescribed to persons with abnormal liver function test results. It is usually not prescribed to persons over 35. Those who test positive but do not take INH are cautioned to receive periodic chest x-rays for the rest of their life. Persons found to be infected with active tuberculosis disease are placed on a drug regimen which includes INH and other antibiotics, for up to one year. Cure rates are high. Isolation is necessary until the patient is no longer infectious, which in most cases is after one or two weeks of chemotherapy. After the infectious period has passed, the patient is treated on an outpatient basis. The likelihood of tuberculosis being spread depends upon the volume of shared air with the infectious source, the source’s degree of infectiousness, and the duration of contact with the source. Several factors increase the risk of transmission of the disease. They include a small volume of air, a high degree of infectiousness, and a long duration of contact. Tuberculosis bacilli in droplet form remain suspended in the air for several hours. Contaminated air which is recirculated mechanically can spread the disease beyond those in immediate proximity. In a closed space with a mechanical air recirculation system, droplets containing tuberculosis bacilli will eventually be distributed widely. The amount of sunlight or fresh air entering a confined space can affect the likelihood of transmission. Tuberculosis bacilli are greatly diluted and disbursed in the outdoors, and there is almost no possibility of contracting tuberculosis from fresh air. Tubercle bacilli are also destroyed by sunlight or other ultraviolet rays. Tuberculosis Control and Investigation After a tuberculosis outbreak is discovered, the focus of public health authorities turns to those in close proximity to an infected person. The Center for Disease Control (CDC) and the American Thoracic Society (ATS) recommend a “concentric circle” approach for determining whether people who have had contact with a person with active tuberculosis have become infected. Under this method, the circle of individuals identified as the source case’s closest contacts are tested first for infection. The judgment of someone trained in the epidemiological aspects of tuberculosis detection and control is needed to conduct a contact investigation. The most critical decision is where to begin testing. The targets of the first circle should be persons who have faced the greatest likelihood of infection. Some factors to consider include the duration and degree of infectiousness, the volume of shared air with close contacts, and the type of contacts — for exam-pie, physical intimacy or mere close proximity. The choice of a first circle is ultimately a matter of judgment in light of the circumstances. Normally, however, the first circle includes those who share the household with the infectious person. In a prison the closest contacts would generally be inmates in shared or neighboring cells. If Mantoux tests of these high risk contacts show a new Mantoux converter (someone who previously tested negative but now tests positive), the testing must be expanded to the next circle of contacts. The testing continues to expand to circles of more remote contacts until no new Man-toux converters are found. At that point no further testing is necessary. Because it may take eight to ten weeks before an infected person will have a positive Man-toux reaction, a test with a negative result should be repeated after the latency period has passed. The concentric circle approach has been adopted by the Minnesota Department of Health and is the model purportedly used at Stillwater since 1982. The Stillwater Facility Construction of Stillwater was completed in approximately 1923. Its population has grown from an average of 900 in the mid-1970’s to approximately 1200 today. It is considered a medium to maximum security facility. The inmate population comprises a wide spectrum of ages, ethnic and racial groups, and health problems. The prison grounds consist of several buildings and open areas, all enclosed by a security wall. The inmate living quarters are called cell halls. There are four cell halls, designated by letters as A-D. Cell halls A and B are the largest; each houses from 400 to 500 inmates. Each is laid out in a similar way: the cells are in the center portion, and are surrounded by interior open space which borders the exterior wall of the building. Stillwater also has a minimum security unit known as the farm. It is located outside the compound walls; inmates live there in dormitory-style living arrangements. Inmates are housed one to each cell. The cells are located side-by-side, and there are four vertical tiers of cells. Each cell has a solid rear wall from which extrudes a 6" X 8" ventilation duct; each cell has solid side walls. The front of each cell is barred and open. Immediately in front of each upper tier cell is a walkway with a railing. The walkway hugs the front of the cells for the length of the cell hall and leads to a common stairway. Beyond the walkway is an open space (common area) which extends the length of the cell hall from floor to roof. The exterior wall of the cell hall contains banks of windows rising to the roof. These windows can be opened by the guards. Some are frequently opened when the weather is mild. There is no policy or schedule for opening windows, and it is unknown how much fresh air enters the cell hall that way. Each cell hall has an independent ventilation system. When the weather does not demand the use of the heating system, fresh air enters through cupola vents on the roof. The air is drawn down to the basement into a plenum, or air tunnel. From there it is blown through air ducts and out a ventilation hole in each individual cell, through the cell, and out into the common area of the cell block. The air is then vented to the outside. When heating is required, the air flow is reversed. Hot air is blown out of vents on the wall opposite the cells into the common area. It is drawn into the cells through the individual ventilation holes, then into the ductwork and down to the plenum. From there it is recirculated through heating units, and fans blow the reheated air back out the vents. In this mode, little or no fresh air is introduced through the ventilation system. The ventilation system is basically unchanged since the prison was constructed. William Mordich, director of the prison physical plant, testified that he has made several budget requests for automating the temperature control and fresh air intake. This goal was to save energy rather than to provide fresh air exchange for tuberculosis control. The proposed modifications would, however, increase fresh air exchange by approximately 15%. The legislature has not funded these proposals. Ultraviolet radiation destroys tuberculosis bacilli. One means of controlling the spread of tuberculosis at Stillwater would be to install ultraviolet light fixtures in the ventilation plenums. No such fixtures have been installed or even proposed, however. The cell halls have varying uses, and each cell hall unit is sealed off from the others. The main cell halls, A-Hall and B-Hall, are each divided in half. A-Hall is divided into A-West and A-East; B-Hall is divided into B-West and B-East. A-East during the period 1982 through 1984 was known as “AEU.” A-West is also divided into two halves. One-quarter of cell hall B is the segregation unit at the prison. The receiving and orientation unit is located in Cell Hall D. This is where new inmates are housed until they have completed their medical screening and their initial receiving and orientation process. After approximately two weeks of orientation, a new inmate is moved to the south half of D-Hall until he is given a more permanent living assignment based upon his vocational or educational plans. Inmates who do not hold jobs and who are classified as “permanent idles” are housed in A-East (formerly AEU). Inmates who attend school are also housed in A-East. Inmates who obtain jobs within the institution have generally been housed in B-Hall. It is Stillwater policy that an inmate may not live in B-Hall unless he has a job. The prison houses other inmates in addition to those convicted in Minnesota courts. Federal detainees of the Immigration and Naturalization Service or the criminal justice system are housed separately. There are also currently many inmates from other states who come to Stillwater under arrangements Minnesota makes with other states. Inmates’ living assignments are frequently changed. This can result from security concerns, changes of job status, crowding, or other reasons. On average, ten to twenty inmates may be transferred any given day. The frequency of transfers increases the difficulty of conducting contact investigations of a tuberculosis patient’s close contacts. It also increases the risk of spreading communicable diseases more widely through the prison. The health services unit is located in a separate building within the compound walls. Until the mid-1970’s the building was operated as a hospital. It has now been remodeled and is used almost exclusively as an outpatient infirmary. There are, however, a few beds used for temporary inpatient care. These are typically used for inmates with temporary, non-critical, medical problems such as a broken leg or a back condition. Inmates who need hospitalization are sent to a secured unit at the Saint Paul Ramsey Medical Center (SPRMC); this unit was created in 1974, specifically for treating inmates. Nearly every function of the health services staff is performed at the health services building. New inmates undergo intake screening and physicals there. Inmates may sign up for sick call each morning and are given a pass to go there to see health services staff. The Hines Consent Decree In 1973 a class action lawsuit was filed on behalf of a class of Stillwater inmates, challenging various aspects of health care delivery. On May 27, 1977, a consent decree was entered between the class and defendants, including the Governor of Minnesota, the Corrections Commission, the Stillwater warden, and the executive officer of the state Board of Health. Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977). The consent decree involved several aspects of medical care at the prison and SPRMC. Plaintiffs allege that numerous violation of the Hines decree have occurred. —Defendants have failed to render “necessary and adequate medical care” to all inmates regardless of their status as inmates. —Defendants have failed to post and distribute the “Patient’s Bill of Rights” set forth in Minn.Stat. § 144.651. —Defendants have failed to provide a full-time physician and an adequate number of nurses and other medical staff. —Defendants have failed to provide an administrative chief of medical services whose primary responsibility is administration of the health care needs of inmates. —Defendants have allowed non-medical administrative and security concerns unnecessarily to override inmates’ valid medical needs. —Defendants have failed to consult with medical experts or follow their advice. —Defendants have failed to arrange for adequate annual independent inspections to assure that the health care system meets the inmate’s needs and complies with medically sound standards. —Defendants have failed timely to remedy deficiencies noted in annual inspection reports. Counsel for the Hines plaintiffs was James Cullen, who at that time was the director of Legal Aid for Minnesota Prisoners (LAMP). He filed the class action on behalf of the inmates and negotiated the consent decree. His testimony before this court shed light on the intentions of those who drafted the decree. One of the Hines plaintiffs’ major concerns was deficiencies with the prison infirmary which had been operated as a hospital. By the time of the consent decree, however, most in-patient medical care for inmates had been transferred to the SPRMC security unit. The decree memorialized defendants’ promise to continue using the security unit or another hospital for all in-patient care. Many of the other changes required by the decree were administrative matters taken up by the health services administrator, Clyde Eells. Evidence at trial showed that line staff or other employees not involved in the upper ranks of administration are generally unaware of the Hines decree. There is no established practice of training most employees regarding the decree’s requirements. Nonetheless, the warden testified that he and the health services administrator regard the provisions of the decree as mandatory. Milt Olson, former administrator of special services, had only vague recollections of the decree. Yet his predecessor, Clyde Eells stated that he was the person primarily responsible for implementing Hines at the prison. Health Services Administration Warden Erickson is responsible for the overall operation and maintenance of Still-water. The administrative structure under the warden has evolved over the last decade. Until 1982 administrative responsibility for the daily operations of the health service was vested in the “health services administrator.” This was Lieutenant Clyde Eells from 1976 through 1982. His sole responsibility was dealing with the administrative and clerical needs of the health services unit. Eells had no formal training in medical care or administration of medical facilities. He viewed his role as being a facilitator and advocate for the medical staff within the prison bureaucracy. He was involved with budgets, staffing, scheduling, and inmate movement. The administrator for health services took no part in medical decisions regarding treatment of inmates. Eells’ position was abolished in 1982, and in its place was substituted the position “director of special services.” This was staffed by an employee of captain rank with presumably more administrative experience and more direct access to the warden. Milt Olson filled this position until his retirement in June 1986. Since then it has been held by Donald Engeldinger who was appointed by warden Erickson. The director of special services is responsible not only for the health services unit, but also for chemical dependency treatment, the protective custody unit, receiving and orientation, the chaplain service, the psychiatry and psychology unit, and the pharmacy. The director of special services does not exercise medical judgment; the position is purely an administrative one. About half of the director’s time is dedicated to health services issues. Neither Olson nor Engeldinger have had any formal medical training, and both deny having any direct role in providing medical care, other than facilitating administration. The St. Paul Ramsey Medical Center has an employee assigned to coordinate its contracts with the Department of Corrections. This person is designated as “DOC health care administrator” and works with the warden and the Commissioner of Corrections. The DOC health care administrator from 1974 until 1987 was Howard Johnson, who has a master’s degree in hospital administration. He negotiated contracts for physician services between Stillwater and a medical group — Ramsey Clinic Associates. These included contracts for primary physician coverage, inpatient and outpatient services at SPRMC, and referrals of inmates to medical specialists. In addition to arranging for the professional care of inmates, Johnson monitored the administration of health services at Stillwater and was responsible for maintaining and improving the quality of health care there. He has since resigned, and the position is temporarily filled by another employee. The DOC health care administrator works with all the state’s correctional facilities and serves as a liaison with the other state agencies such as the Department of Health. Neither Johnson nor his temporary successor are clinical administrators, however. They do not exercise clinical judgment over the care and treatment of inmates. None of these administrators claims direct responsibility for the quality of medical care provided at Stillwater. Rather, each views that as the responsibility of the medical director — one of the prison physicians. Stillwater Medical Personnel Through the first half of the 1970’s Dr. Cicero was the Stillwater staff physician. He served full time as medical director and was responsible for the prison infirmary. Dr. Cicero was replaced in 1976 by Dr. McCloed who spent approximately 30 hours per week at the prison infirmary. He was on call other hours, and also cared for hospitalized inmates at the St. Paul Ramsey Medical Center. Dr. McCloed was not associated with any other medical practice and worked full time for the Department of Corrections. He was apparently considered the medical director. After Dr. McCloed left, Dr. James Ewing apparently served as the prison physician for a time. From August of 1981 through early 1985, the designated Stillwater medical director and sole physician was Dr. James Allan. From the start of Dr. Allan’s tenure, he divided his medical services between the prison and a private family practice clinic at Maplewood, Minnesota. He initially spent about half his work time at Stillwater and half carrying a full patient load at the family practice clinic. Generally he would spend mornings at Stillwater and afternoons at the Maplewood clinic. When the new maximum security facility opened at Oak Park Heights, he also became medical director there in 1983. He left correctional health care in April of 1985. Dr. Allan testified that he considered his role solely as a clinical physician providing sick call and emergency coverage. He disclaimed any responsibility for the overall direction of health care at Stillwater. He contends that he had no responsibility for implementing an infectious disease prevention and control policy at the prison. He denies that he had any role in formally training or evaluating medical personnel. He refused to supervise the laboratory or perform medical administration functions. He denies having had responsibility for developing a disease control policy. He held himself apart from the Stillwater administration, and claims he answered solely to his employer at Ramsey Clinic Associates. In June of 1985, Dr. Allan was replaced at Stillwater by two physicians, Dr. Fran-sisco DeLaRosa and Dr. Vijay Eyunni. Both DeLaRosa and Eyunni were contracted by SPRMC for these services. Later Dr. Ramos was also hired to share the duties of primary clinical care. These three physicians currently share physician duties at Stillwater. Only after he began work at the prison, did Dr. DeLaRosa learn he was designated as the medical director. He initially understood that he would provide sick call services only. He testified that he would have requested more money if his duties were to extend beyond sick call coverage. He did sign documents as the medical director when asked to do so by administrators or by the nursing staff, however. For quite some time, these were the extent of his actions as medical director. He was unaware of the contract between the Department of Corrections and SPRMC which described the function of the medical director. Dr. DeLaRosa testified that he learned of the tuberculosis problem at Stillwater from a newspaper, and received no orientation on that topic from the staff. He didn’t view tuberculosis surveillance and control as his responsibility. Nor did he view tuberculosis disease with much concern because he considers it easy to treat. He continues to work at Stillwater and still does not believe that he has any responsibility for tuberculosis control other than clinical care. He has never seen a tuberculosis protocol for the prison. He does not even seem familiar with the clinical treatment of the disease. For instance, he testified incorrectly about the proper dosage of INH. In July of 1986, Dr. DeLaRosa passed on the medical directorship to Dr. Eyunni. Eyunni is board certified in emergency medicine. He also has training in public health and institutional medicine. He puts in 12 — 20 of the 32 hours of weekly physician coverage at the prison. One-half to three-quarters of this time is spent in sick call and the delivery of primary medical services to the inmates. He spends the balance of his time on duties as the medical supervisor. He appears to be a capable physician and administrator, and seems willing to take an active role as medical director unlike Drs. Allan and DeLaRosa. Presently, a physician is generally at the prison five mornings and three afternoons each week. Emergency call coverage is provided 24 hours a day, seven days per week. Aside from the physicians, there is a medical staff at Stillwater comprised of five or six full-time and four part-time nurses, one or two laboratory technicians, one full-time x-ray technician, two full-time dentists, one full-time pharmacist, one full-time pharmacy technician, and two full-time employees who manage medical records. The Department of Corrections also employs other regular consultants; these include Dr. Donald Dohnalele, a radiologist who is present two afternoons a week, a dietician one and one-half days a week, an ophthalmologist one day every two weeks, an optician six hours every two weeks, and a physical therapist a half day per week. The nursing staff is supervised by the director of nursing, Evern Olson. Evern Olson has been nursing director since 1976 and has worked with each physician retained since then, as well as administrators Eells, Olson, and Engeldinger. She coordinates sick call as part of her supervisory duties. Most of the physicians with whom Evern Olson has worked have devoted little time to the supervision of the health services unit. They have taken almost no initiative in imposing continuing education of the medical staff, or implementing standards or procedures for quality control. Evern Olson has frequently taken many of these duties upon herself, but these initiatives have often been overwhelmed by other responsibilities. This has been exacerbated since 1982, as the prison population has increased and administrative control of medical services was transferred to the director of special services who has several other administrative responsibilities. Evern Olson has been overburdened with supervising and training the nursing and other medical staff, as well as coordinating hiring and recordkeeping, maintaining continuity of care, developing or implementing policies and procedure manuals and protocols, and controlling medical specialists’ workload. Olson also deals with outsiders such as lawyers, insurance companies, and family members. She tries to keep current on emerging issues such as AIDS and AIDS testing. As a result of Olson’s other responsibilities and the physicians’ lack of initiative, tuberculosis prevention and control practices by the health services staff have suffered from a lack of attention and continuity. Relationship of Department of Corrections and St. Paul Ramsey Two contracts between SPRMC and the Department of Corrections deal with physician coverage at Stillwater. Each was for a two-year period, the first effective July 1 of 1983; the second July 1, 1985. After June 30, 1987, Stillwater contracted directly with physicians rather than through SPRMC. Under the 1983 and 1985 contracts, SPRMC provided physicians from Ramsey Clinic Associates. The contracts required that a physician be present at Stillwater five days each week, but they did not designate the number of hours to be served per week. One of the physicians was designated medical director pursuant to the contract. The 1985 contract described the medical director’s responsibilities to include the over-all management of the health services unit and the delivery of primary health care to the inmates. There has been frequent turnover of prison doctors since 1982, and the continuity of medical care has suffered. There has also been confusion between the prison administrators and physicians as to responsibility for institution-wide health issues such as infectious disease prevention and control. In the period from Dr. Allan’s arrival until Dr. Eyunni became medical director, no physician took an active role in developing preventive health care policies, establishing a peer review program, or engaging in formal medical staff performance review. In 1985 the Department of Corrections contracted with SPRMC to provide a physician to serve six hours per week as medical director for the entire state prison system. SPRMC then contracted with the medical director of the prison at St. Cloud, Dr. Harapat, to provide these services. The contract provided for the immediate development of a peer review system. No peer review system has ever been developed, however. Now the Department of Corrections directly contracts physician's services. The only quality assurance program consists of occasional review of medical charts at quarterly physicians’ meetings. These reviews are not well-documented, and there is no record of any findings or results. Department of Health Intervention at Stillwater Because of the Hines decree, the Department of Corrections has maintained since the mid-1970’s a series of cooperative agreements with the Department of Health for inspection and consultation at the state correctional facilities. Department of Health inspections now occur annually at Stillwater. In addition, other department personnel have been involved in Stillwater health care delivery, primarily in relation to the tuberculosis outbreak. Allain Hankey, the Director of the State Tuberculosis Control Program from 1977 through September 1985, directed the day-to-day tuberculosis control efforts at Stillwater. Hankey’s education includes a bachelor’s degree in community health and master’s degrees in both health services and public and environmental health. Her major responsibilities at the Department of Health included keeping a state-wide case register of tuberculosis disease, conducting or coordinating contact investigations, and assisting county health departments in providing chemotherapy and chemoprophylaxis (INH preventive therapy). As director of the state tuberculosis program, Hankey developed expertise in the general surveillance and control of tuberculosis; she wrote and published a state-wide general tuberculosis control manual in November of 1981. The manual was Han-key’s interpretation of the ATS/CDC guidelines for the surveillance and control of tuberculosis. This was distributed to Still-water and the public health agencies and county tuberculosis control programs around the state. From 1977 through most of 1982, Han-key had little contact with Stillwater. She was consulted occasionally by health services personnel, and she provided some written material. In 1980 she distributed to Stillwater a two-page document entitled “Screening for Tuberculosis in Minnesota Correctional Institutions.” It explained how to administer and read Mantoux tests and cautioned that prisons were environments with potentially high rates of tuberculosis transmission. Hankey’s more intensive contact with Stillwater began in late 1982. Inmate Ant-ti Haavisto was diagnosed in November 1982 with active infectious tuberculosis. He was treated for the disease, and a limited contact investigation was conducted at Stillwater by Hankey. One year later the inmate in Haavisto’s neighboring cell, James Murray, was diagnosed with active tuberculosis disease. A broader contact investigation, supervised by Hankey, revealed widespread infection among inmates in cell hall AEU. Over the succeeding years several hundred inmates throughout the prison have been infected with tuberculosis, and at least eight other inmates have been diagnosed with active disease. Since 1982 Stillwater and the Department of Health have attempted to respond to the epidemic. They have treated infected inmates, tested to determine the spread of infection, and otherwise attempted to control the epidemic. Plaintiffs criticize defendants’ response as inadequate and often ineffective. The response by Stillwater and the Department of Health to the tuberculosis epidemic forms the basis of plaintiffs’ claims and was the major focus at trial. Hankey was called into Stillwater in November 1982 after inmate Antti Haavisto was diagnosed as infectious with tuberculosis. His was the first in the series of cases of infections tuberculosis discovered at Stillwater during the period in question. She directed the contact investigation which was conducted in response to Haav-isto’s diagnosis. From 1982 until her departure from the Department of Health, the Stillwater administrators and health services personnel passed to her virtually total control of the tuberculosis control efforts at the prison. The Stillwater administrators were impressed with Hankey’s national contacts, particularly with the CDC. Dr. Allan testified that he deferred to Han-key in all matters regarding tuberculosis except clinical medical care. Milt Olson, Donald Engeldinger and John Twohig, associate warden, all say that they deferred completely to her expertise. They let her take the lead in the contact investigations and relied on her for direction on tuberculosis control practices. Hankey, on the other hand, describes her role as merely providing consultation at the institution’s request. She claims that she did not take responsibility for stopping the spread of tuberculosis, but merely offered guidance on issues raised by the institution. She says that tuberculosis prevention is the primary care physician’s responsibility. Hankey asserts that the cooperation she received from Stillwater was always adequate. Yet in her communications with George Rogers of the CDC she complained of inadequate staffing and the administration’s inability or refusal to accommodate some of her requests. Hankey kept her supervisors, particularly Dr. Dean, informed of the tuberculosis situation at Stillwater and documented the results of her investigations. Dr. Dean never took an active role, however. This is due in part to Hankey’s consultations with the CDC and Dr. Dean’s confidence in its advice. The CDC also reviewed data from contact investigations. CDC personnel never criticized Hankey’s methods and assured her that her decisions to end contact investigations were appropriate. The CDC relied entirely on Hankey’s representations and data, however. No one from the CDC ever came to the prison to conduct an independent review or evaluation. The health staff relied on the CDC assurances, relayed through Hankey, that the investigations were properly conducted and concluded. Tuberculosis Surveillance and Control Practices Throughout the 1970’s and until the last weeks of 1982, Stillwater’s detection and tuberculosis control practices-were coordinated by an x-ray technician, Joyce Kiley. She administered and read Mantoux tests which were given to all incoming inmates, and recorded the results as positive or negative in the inmate’s medical chart. Chest x-rays were taken of those inmates with positive Mantoux tests. That was the extent of the tuberculosis surveillance and control. There were no periodic skin tests after the initial test on entry. Nor were any other surveillance measures adopted as were recommended by the ATS/CDC guidelines. Kiley received no formal training in applying or reading Mantoux results. Allain Hankey testified that Kiley was not always careful or precise with her readings. She had little or no communication regarding Mantoux testing with the prison physician. Dr. Allan, the nominal medical director from 1982 through 1985, was not even aware that Kiley administered the Mantoux tests. Until 1982 intake Mantoux tests were the only measures taken to monitor or control tuberculosis in the prison. Beginning in 1981 the medical staff began to keep a log of Mantoux test results. Before December 1983 the log did not indicate the size of induration, but only whether the result was positive or negative. This failure to note the size of induration in millimeters was substandard under the ATS/CDC guidelines. Beginning the last week of 1982 the duties of tuberculosis coordinator were assumed by Sherleene (Sherry) Olson. Except for a nine-month period in 1984 and 1985, she has since supervised the Mantoux testing and recordkeeping. She is now designated as the communicable disease coordinator of Stillwater. Her formal training before 1982 was as a registered laboratory technician, and she was hired at Stillwater for that job. Since then she has received extensive on-the-job training, has worked closely with state Department of Health tuberculosis experts, and has attended national communicable disease workshops. When Olson began as tuberculosis coordinator, there was no formal protocol adopted by Stillwater for conducting Man-toux testing. She initially learned her job by working alongside Joyce Kiley. On her own initiative she developed a rolodex filing system containing the Mantoux history of each inmate. This was started sometime before March 1984. It now serves as a convenient means of identifying previously tested inmates, previous positives, dates tested, and dates of conversion from negative to positive. The prison had little literature regarding tuberculosis prevention and control before Haavisto’s case was discovered in November 1982. The available information was not frequently reviewed and was not part of any protocol. One document on hand was a state-wide control manual which gave basic information on testing and control. Another document gave a brief description of how to administer Mantoux tests. This information was kept by Joyce Kiley in a desk drawer. There was no attempt by any staff member to compile an internal tuberculosis protocol. Tuberculosis screening was limited to Mantoux testing and x-rays. The radiologist who read the x-rays did not always have inmate charts or clinical histories, including Man-toux test status, when he read the x-ray. The level of suspicion of tuberculosis was low. Prior to the spring of 1984, most incoming inmates were given a Mantoux test as part of their intake physical unless they had a documented previous positive reaction or stated that they were previously positive and were able accurately to describe the reaction. If there was any doubt about the inmate’s claim of a previous positive reaction, he was tested with a half dose of PPD. If that test was negative, he was then tested with a full dose. Inmates transferring into Stillwater from another institution were not tested if they were coming from within the Department of Corrections system or had been out of an institutional setting for less than six months. This failure to test all incoming inmates deviated from written standards set by the Department of Health and issued to Stillwater in 1980. All new admit-tees should have been tested. In the spring of 1984, the medical staff began testing every incoming inmate who did not have good proof of a previous positive Mantoux, including inter-prison transferees and inmates returning after a short time away. At that time, Sherry Olson began using a separate yellow index card in each inmate’s medical file to record Man-toux and chest x-ray history. On August 1, 1986, Stillwater began using a two-step Mantoux screening process. This involved retesting all non-reactors after ten weeks to assure that the previous negative was not due to latent infection or recent exposure. The two-step process had been recommended by the Department of Health and was based upon ATS/CDC literature in existence for several years previously. The failure to use two-step testing before August 1986 deviated from published standards for tuberculosis control. Since the initial outbreak in 1982 involving Antti Haavisto, Stillwater has collected an array of tuberculosis literature, including a revised version of the ATS/CDC guidelines. Sherry Olson testified that she inherited some written information from Joyce Kiley. She also requested additional information from the Department of Health which she kept in a red notebook. She updated the notebook regularly with new tuberculosis prevention and control information. Several health services staff testified that the red notebook constituted the only written policies and procedures governing the prison’s tuberculosis programs. The contents of the red notebook were not disseminated among health services staff or non-medical prison personnel, however. Sherry Olson and nursing director Evern Olson were the only people with a working knowledge of the tuberculosis control information on hand. In the fall of 1986 Stillwater received from the Department of Health a tuberculosis surveillance and control protocol specific to prisons. This was part of a statewide health unit policy manual edited by Howard Johnson. The section on tuberculosis screening and control is based upon ATS/CDC guidelines and upon input from the Department of Health. That manual presently governs the methods for tuberculosis surveillance and control at Stillwater, although it is not written specifically for that institution. While the tuberculosis surveillance and control practices have improved greatly since 1982, the practices have often been inconsistent with recommended standards. Many of the tuberculosis control practices recommended by the Department of Health were not timely implemented. Most improvements have come after this litigation began in April, 1984, and the medical and administrative personnel came under scrutiny. The way that preventive INH is prescribed has not always complied with recommended practices. Before the spring of 1984, INH was prescribed in monthly allotments of 300 mg per day. This raised concerns that inmates would distribute or destroy the medication, or otherwise abuse it for intoxication or suicide. In 1984 the prescriptions were reduced to a seven day supply of daily doses which the inmates were instructed to self-administer. After 1984 the weekly visit to the medication nurse was used as an opportunity to monitor both for side effects and for compliance. If an inmate did not report to pick up his pills, was observed disposing of the pills, or was otherwise suspected of noncompliance, he was questioned by the nursing staff. If he indicated non-compliance, efforts were made by the nursing staff and physicians to convince the inmate to take the medication. After 1986, if non-compliance was still suspected, directly observed therapy was used. If the inmate continued to refuse to take INH, he was transferred to the Oak Park Heights facility until he changed his mind. On return to Stillwa-ter, the inmate would be required to report to health services daily for direct observation while he took his INH. Coercive practices which were intended to promote INH compliance were largely unsuccessful. When Claudia Miller and Dr. Kristine MacDonald took over from Allain Hankey in 1986, Miller reported to the Attorney General’s office that non-compliance was rampant. The Department of Health encouraged Stillwater to adopt a policy of daily directly observed therapy for all inmates taking INH. In 1986, when such therapy was first strongly recommended, there were several hundred inmates receiving INH treatment. Prison administrators would not undertake the logistically complex task of arranging for that number of inmates each day to be watched for compliance. In 1987, Claudia Miller and Dr. MacDonald advised that twice weekly INH therapy was permissible, although MacDonald did not expressly endorse that approach. In July 1987, Stillwa-ter adopted a program of prescribing INH for tuberculosis prevention at the dosage of 900 mg twice per week and observing the inmate take his medication. The program was put into practice beginning in September, 1987, but only for inmates who began their INH therapy after that date. The prolonged delay in implementing directly observed therapy shows that concerns for administrative convenience and staffing took precedence over recommendations by the prison’s medical consultants, to the detriment of inmates. Although defendants apparently seem willing to comply with the Department of Health recommendations now that the low number of inmates taking INH makes the process less burdensome, they presented no evidence of any contingency plans for continuing directly observed therapy for large numbers of inmates should another outbreak occur. Antti Haavisto Plaintiff Antti Haavisto entered Stillwa-ter as an inmate on March 29, 1982. As part of the regular intake process at the prison, he was given a cursory medical examination by a nurse. The examination included a Mantoux test and chest x-ray. The Mantoux test was positive. The radiologist read the chest x-ray as negative; he noted that it demonstrated no lung abnormalities. This suggested an absence of active tuberculosis. The x-ray was apparently read without the clinical chart present, however, and the radiologist did not know Haavisto’s Mantoux status. During his intake exam, Haavisto informed the health services personnel of pulmonary symptoms he experienced while he was incarcerated at the Wadena County Jail from January of 1982. He fell ill while he was at the local jail, and after arriving at Still-water he speculated that he had tuberculosis. An antibiotic was prescribed by health services, and his comments about tuberculosis were apparently ignored. He returned to health services repeatedly. On May 16,1982, he requested a decongestant. On May 17, 1982, he reported an upper respiratory infection; penicillin was prescribed. On May 25, 1982, he again presented himself to health services complaining of an upper respiratory infection; amoxicillin was prescribed. Before June 30, 1982, Haavisto was seen two more times at health services with respiratory complaints; various treatments were prescribed. A blood count and chest x-ray were ordered on June 22. The x-ray was reported by the radiologist as mild pulmonary emphysema. Between June 30 and August 4, the medical chart reflects three more visits to health services. None of the entries on Haavisto’s chart indicate respiratory problems; Haavisto testified, however, that his pulmonary problems were persistent. He had several x-rays taken through July 1982. None of his x-ray reports or medical record note the possibility of tuberculosis. His complaints of coughing and chest and back pain were persistent. The health services personnel and guards had instructions from Dr. Allan to give him cough drops when he needed them. Haavisto was sometimes not permitted to report to sick call. On several occasions when he reported, Dr. Allan was absent and the appointment was cancelled. Dr. Allan insists that each of Haavisto’s pulmonary symptoms from April through November 1982, was a discrete episode which resolved with treatment. Haavisto would awaken during the night with severe coughing spells. This would wake other inmates who would make angry remarks and threats. His respiratory problems were so well-known that others worried about being infected by him. Sergeant Marty Lopez was instructed by his supervisor to keep alcohol and rags on the cell block to wipe off the phone after Haavisto used it. In the early mornings and before each meal, it was Haavisto’s habit to lie on his stomach for up to an hour to cough up as much sputum as he could so that he could eat in the dining hall without calling attention to his coughing. Haavisto suffered intimidation from fellow inmates who accused him of spreading disease. He testified that he feared for his life. Because of threats he kept to himself for several months prior to the diagnosis of active tuberculosis. Other inmates in his cell hall (AEU) became irritated and alarmed about his coughing and spitting. They complained to Haavisto, to the guards, and among themselves that he might have tuberculosis. The guards’ union confronted the administration about possible tuberculosis among inmates, and several guards were tested by private physicians. In spite of all this, tuberculosis was not considered by the prison health services until October 1982. In sum, the supervisors and medical staff demonstrated inattention and deliberate indifference to Haavisto’s welfare and that of inmates and staff with whom he had contact. Over the summer of 1982 Haavisto requested the opportunity to see a private physician. The request was denied even though he agreed to be financially responsible. This is a violation of the “Patient’s Bill of Rights,” incorporated in the Hines decree, which states that inmates have the right to consult with private physicians. See Hines v. Anderson, 439 F.Supp. at 18. At one point in the summer of 1982, Haav-isto attempted to obtain a chest x-ray without the approval of Dr. Allan. Dr. Allan intervened and would not permit the x-ray to be taken, accusing Haavisto of wasting state money. Haavisto reported to sick call on October 14, 1982. He reported that his back and chest pain persisted and that he was coughing up blood. Haavisto was not isolated, nor were further x-rays taken until October 25, 1982. Dr. Allan did order a sputum test, however. It was at this point that tuberculosis was apparently first considered. Haavisto was returned to the cell hall and not isolated. He was required to wear a face mask and discouraged from undertaking any activity which might spread infection from air droplets. When his October 25 x-ray was read, the Stillwater radiologist noted for the first time an infiltrate in the left lung consistent with tuberculosis disease. He had earlier noted possible pneumonia or emphysema, but never tuberculosis. On October 29, 1982, Haavisto was sent to SPRMC and placed in an isolation unit. His sputum smear was returned on November 1, 1982, and was found to be positive with many acid fast bacilli. He was thereafter considered to be a bacteriologically confirmed active case. He was kept in isolation at SPRMC and started on antibiotic therapy. The pulmonary medicine department of SPRMC compiled a medical history of Haavisto’s symptoms from before his entry into Stillwater. The physicians reviewed a series of x-rays, beginning with his Stillwa-ter entry x-ray from April 1982. The SPRMC radiologist noted that the tuberculosis infiltrate was evident as far back as April 1982. Given Haavisto’s clinical symptoms and the manner in which tuberculosis spread at the prison, it is likely that he was suffering from active tuberculosis disease at the time he entered Stillwater. His medical history taken at SPRMC indicated that at the time of his diagnosis, he was producing approximately one and one-half cups of sputum per day. Haavisto testified that throughout the summer of 1982 he was coughing up “mud” and had been reporting this to the medical service. On November 1, 1982, after Haavisto’s diagnosis of tuberculosis was confirmed, there was a discussion between Allain Han-key, Joyce Kiley, and Evern Olson. They agreed that Hankey would come to the prison that week to survey the situation. When she initially spoke with the Stillwater medical staff, Hankey expressed confidence in the manner in which Haavisto was cared for, but she had very little information on which to base such an opinion. She told Stillwater staff that only those who had been in constant close exposure for a prolonged period were in any danger of infection. This characterization was inaccurate and likely gave the health services personnel a sense of false security. It did not take into account the degree or length of Haavisto’s infectiousness or the risk of transmission within Haavisto’s cell hall. Allain Hankey further recommended in her initial conversations that only close contacts — inmates living on either side of his cell — be tested by the concentric circle approach. She also recommended that any concerned staff could be tested. The same offer was not extended to concerned inmates, however. Inmates were not even informed of their possible exposure. It appears that guards in cell hall AEU were offered Mantoux tests in October 1982, even before Haavisto was diagnosed as infectious. It thus seems that tuberculosis was suspected and that administrators acted to allay staff concerns, at the same time Haavisto was unsuccessfully urging the medical staff to consider the diagnosis of tuberculosis. Hankey came to Stillwater on November 1, 1982 to follow up on Haavisto’s diagnosis. Dr. Allan and the nursing staff thought that the entire institution should be screened for tuberculosis. Hankey advised them that the ATS/CDC guidelines recommend a concentric circle contact investigation starting first with highest risk contacts and progressing out to more remote contacts if necessary. Dr. Allan requested a formal written recommendation from the Department of Health regarding the concentric circle method. In response, Hankey drafted a memorandum which was sent to Dr. Allan over the signature of Dr. Andrew Dean, head of disease prevention and control at the Department of Health. The letter described and recommended the concentric circle approach. The contact investigation began with a survey of Haavisto’s daily patterns. Haav-isto’s first permanent living assignment upon entering Stillwater was to cell hall AEU. He remained assigned to that cell