Morales Feliciano v. Calderon Serra, No. CIV. 79-004(PG).

• Decision Date: 26 January 2004
• Docket Number: No. CIV. 79-004(PG).
• Citation: 300 F.Supp.2d 321
• Parties: Carlos MORALES FELICIANO, et al, Plaintiffs, v. Sila María CALDERON SERRA, et als, Defendants.
• Court: U.S. District Court — District of Puerto Rico

300 F.Supp.2d 321

Carlos MORALES FELICIANO, et al, Plaintiffs, v. Sila María CALDERON SERRA, et als, Defendants.

No. CIV. 79-004(PG).

United States District Court, D. Puerto Rico.

January 26, 2004.

Manuel A. Rodriguez-Banchs, Carlos V. Garcia-Gutierrez, Jose R. Roque-Velazquez, Civil Action and Education Corporation, San Juan, PR, for Carlos Morales-Feliciano.

Ricardo Alfonso-Garcia, Rafael E. Rodriguez-Rivera, Civil Action and Education Corporation, San Juan, PR, Lillian N. Miranda-Rodriguez, Cond. La Arboleda, Guaynabo, PR, for plaintiffs.

Marcos A. Ramirez-Lavandero, Ramirez Lavandero & Associates, Rio Piedras, PR, for Rafael Hernandez-Colon.

Eileen Landron-Guardiola, Eduardo A. Vera-Ramirez, Landron & Vera-Ramirez, Landron & Vera LLP, Guaynabo, PR, for Johnny Rullan.

Esther Crespin-Credi, Dept. of Justice, Federal Litigation Div., San Juan, PR, for Mirla M. Rodriguez-Marin.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

On October 1, 2003, Defendant Hon. John Rullán, MD, Secretary of the Department of Health of the Commonwealth of Puerto Rico filed a Motion Under the PLRA to Vacate or Terminate the Court Relief Mandating the Transfer and Privatization of the Correctional Health Program of the Department of Health (Dkt.# 8486) (hereinafter Defendant's Motion).¹ On October 23d the Plaintiff Class opposed and filed a cross motion (Dkt.8500) to modify the Medical and Mental Health Plans by terminating two sections of those Plans (Dkt.# 1959), and a handful of ancillary orders. A hearing was set for November 4, 2003.

Over the course of several hearings Defendant presented the testimony of Dr. Héctor José Mena Franco, MD, Executive Director of the Correctional Health Program, Dr. Aida Guzmán Font, MD, who headed the Correctional Health Program from April of 1993 through March 2000 and from February 2001 through March 2003 as Chief Health Care Coordinator, Dr. Robert Dennis Jones, MD, who testified as an expert in medical, mental and dental correctional health and administration², and the Hon. Miguel Angel Pereira Castillo, Secretary of the Department of Corrections and Rehabilitation and acting Administrator of the Administration of Corrections. In addition, extensive documentary evidence was admitted into evidence. After the presentation of this evidence Defendant rested on the issues of alleged compliance with the Medical and Mental Health Plans and the supposed lack of current and ongoing constitutional violations.

The order at issue is part of a stipulation or consent decree entered into by the parties in September 1997 as a joint alternative proposal for a remedy to substandard and chaotic conditions or denial of health care throughout the Administration of Corrections, all of which is detailed in the court's Opinion and Order, Morales Feliciano v. Rossello Gonzalez, 13 F.Supp.2d 151 (D.P.R.1998). The court approved and ordered the consent decree executed, without passing on the court's own expert witness' recommendation for a receivership. One important component of the joint proposal was defendants' responsibility to set up a private not-for-profit corporation (the initial organizational communication and operational expenses to be paid for out of fine funds held by the court) which would eventually contract with the Administration of Correction to provide health care to persons in custody of the Administration of Corrections. Extensive testimony and charts were presented during the process in 1997 to be followed until the not-for-profit corporation (eventually registered as the Correctional Health Services Corporation or CHSC) could compete with other providers in Puerto Rico's newly privatized indigents' health care economy in contracting with the AOC.

The Secretary's contention in requesting termination is threefold; that the Correctional Health Services Program is performing efficiently its task of delivering health care to persons in the custody of the AOC, that the CHP is complying with the Medical and Mental Health Plans and, that prisoners' federally protected rights are no longer violated. The Secretary, on his own evidence, is wrong.

FINDINGS OF FACT

The defendant has established that by contracting with private individuals and companies he has greatly enriched the professional staffing his command. He has also established through his own witnesses that fully one fourth of inmates who request sick-call do not get it; only 55% of ambulatory care appointments in fact occur, and only 49% of extra-mural appointments are met (these are specialist consultations for serious conditions, surgery etc.). The quoted percentages are a few points below the 1996-1997 averages, and in the case of outside specialist or hospital appointments the drop is significant, from 61.8% completion in 1996-1997 to 49% at present. All of this is enough to find that there is still a present and ongoing systematic and massive denial of health care to the inmate population in the care of the Correctional Health Program.

In 1998 the court found that "[t]he deficiencies evidenced at the hearing are the result of systematic infirmities in the correctional health scheme, which can be characterized as (a) obstructionist interference from and inefficiency within the Department of Health and other government agencies and (b) the lack of cooperation on the part of the Administration of Correction." Morales Feliciano, 13 F.Supp.2d at 179-180. Since the Secretary has increased expenditures on professionals and private service companies³ and inmates still fail to get health care in very substantial numbers (at eroding rates, in fact), the only finding that the court can make is that the Correctional Health Program and the Department of Health continue to fail in the administration of increased resources and continue to violate prisoners federally protected constitutional rights. The court cannot but underline that denial of health services is massive and systematic.

No matter how much the Correctional Health Program blames the Administration of Corrections for the Program's failure, the court cannot accept the present and ongoing mistreatment of plaintiffs because two cabinet secretaries — Health and Corrections — cannot get together to solve custody and transportation issues. Theirs has been and still is a joint responsibility⁴ until we all deal with the consequences of Plaintiffs' motion to terminate which we discuss further on. Since 1993 Dr. Aida Guzmán, M.D. has been involved with correctional health care. During the present hearings she had this to say about interagency cooperation and the failure to deliver health care:

Because the problems are the same as in 1997, same problems, problems with access.

. . . . .

It is the same problems, because there has been no actual change in terms of the attitude of the organization of the Administration of Correction in providing access to care; that has not changed.

Tr. at 909:4-13.

The delays in affording inmates with important extra-institutional appointments and medical care paint a grimmer picture than that of 1997. The situation is particularly critical in the Ponce Correctional Complex, Ex. 18, where a significant percentage (just over 20%) of the total inmate population live, including almost 40% of the women under the custody of the AOC. Tr. at 1158:4-7. The Master List of Medical Routes for the Ponce Complex, copy of which was marked as plaintiffs' Exhibit 18, is plagued with instances of patients that missed important medical appointments and procedures due to lack of transportation. For example, between September 23 and September 30, 2003, all of the Ponce inmates that were scheduled for extra-institutional medical appointments — a total of 72 — missed them. Ex.18. Among the appointments missed during that week were 12 mammograms, 6 abdominal/pelvic sonograms, 4 brain CT scans, 2 MRI's, and various orthopedic and oncological evaluations that are described as "important" in the log. Id. On October 15 and 16, 2003, all of the 23 appointments scheduled for those 2 days were also missed. Id. The same was true with the 14 appointments scheduled for October 9, 2003, the 12 for October 7, 2003, and the 18 for October 2, 2003, to name just a few. Id. One of the appointments missed on October 2, 2003 was a surgical intervention that the inmate Luis Martínez Cruz was supposed to have that day. Id. The female Ponce inmates have been left without gynecological medical attention since the end of September 2003, Tr. at 1154:20-1155:2, and are experiencing and have experienced delays of over 6 months to have mammograms performed. Tr. at 524:1-5. Although Exhibit 17 established that such had been the case of inmate Marta López Huertas, hers was not an isolated incident as evinced by Exhibit 18.

As a matter of fact, the last time that a female inmate from Ponce was taken to her scheduled mammogram was on May, 6, 2003. Since then, all of the mammogram appointments have been missed for lack of transportation. Exhibit 18. Inmate Conilia Betancourt Fernández has been waiting to have a mammogram since April 22, 2003, Ruth Rodríguez Santiago since May 1, 2003, and María Cameron Alers since May 15, 2003. From then on, Conilia Betancourt Fernández has not been taken to 6 mammogram appointments (June 3, June 19, July 15, August 28, September 30, and October 28, 2003), Ruth Rodríguez Santiago, to 4 (June 12, June 19, September 4, and October 2, 2003), and María Cameron Alers, to 6 (June 3, June 19, July 15, August 28, September 25, and October 30, 2003). During that same time span, various other female inmates were not transported to their scheduled mammograms on more than one occasion, to wit: Leonilda Santiago Santiago was forced to miss her appointments for August 26, September 25 and October 30, 2003, Norma Rosa Rivera and Betsy Rodríguez Vargas missed their respective appointments for August 28, September 30 and October 28, 2003, Rosa Robles Galarza missed hers for September...