October 9, 2005

On October 6th, 2005, U.S. District Judge Sandra Beckwith accepted a Preliminary Settlement Judgment in Fussell v. Wilkinson, Case No. C-I-03-704 (S.Dist.Oh.W.D., Cincinnati). Prisoners Rodney Fussell, James F. Love and Gary Roberts filed suit on October 14th, 2003, claiming systemic failure in Ohio's Medical and Dental Care System. The Class, which included all 44,000+ Ohio prisoners, was certified on January 23rd, 2004. Class counsels are Alphonse Gerhardstein and David Singleton of the Prison Reform Advocacy Center (PRAC), located in Cincinnati, Ohio. 

Fussell was imprisoned at the Southern Ohio Correctional Facility at Lucasville, (SOCF), and later transferred to Lebanon Correctional Institution (LeCI), in Lebanon, Ohio. Love and Fussell had been in the same cell block at SOCF for several years and knew each other well. Love had assisted Fussell in his criminal appeals. Love and Roberts were imprisoned at LeCI. Roberts was later transferred to London Correctional Institution in London, Ohio. Love had met Roberts in the law library at LeCI and obtained counsel for Roberts for a wrongful death action after Roberts' parents had died in a tragic fire.

Roberts and Fussell are Hepatitis C positive prisoners who had been refused treatment by the Ohio Department of Rehabilitation and Corrections (ODRC). Fussell and Roberts had been writing letters to PRAC for over a year, complaining that the ODRC would not transport them to Ohio State University Medical Center (OSU), for a liver biopsy, which is necessary before any treatment plan can be developed and implemented for Hepatitis C. The ODRC denied their Grievances, stating they were not qualified to overrule the physician.

Love, after being transferred from SOCF to LeCI in January 2001, had been refused dental treatment for over two years. Love had sought to have his teeth cleaned and been told repeatedly he was "on the list." Discovery later disclosed there was no "list." Grievances were filed by Love in 2002 and 2003.

The ODRC responded that under their Dental Policies, cleaning of teeth was a "Category Three or Four service which generally will not be provided." Love responded to the Chief Inspector's Office of the ODRC asking if, since he was serving four consecutive life sentences, the decision by the Chief Inspector meant he would never have his teeth cleaned again in his lifetime? No response was received from the ODRC. Love developed periodontal disease and bone loss resulting in his four front bottom teeth becoming loose.

It should be noted Ohio contracts out all medical care to private physicians on a low-bid basis. It was the cost of treating Hepatitis C for Fussell and Roberts which was behind this refusal. Another Class Member, Gary Lundy, had been diagnosed with Hepatitis C in 1996 and not told he had Hepatitis C until 2003 when he developed liver cancer. Mr. Lundy is now diagnosed as terminal. His sentence expires in February 2006.

In a separate action related to this Class Action, Mr. Lundy was awarded $2.6 million dollars, which the State has appealed. Two other prisoners, Keith Davis and Larry Murawski, who were friends of Love, died in 2003 as a result of liver failure, and the refusal of the ODRC to provide them with timely medical care. 

In the Summer of 2003, after 29 months of waiting for dental treatment, Love spent a week on the recreation yard at LeCI talking to other prisoners regarding the medical and dental care at LeCI, and passing out the address of PRAC to men who complained they had been attempting to obtain either medical or dental care for months without success. As a result of Love's efforts, PRAC received 85 complaints of inadequate medical and dental care within two weeks, setting off alarm bells within the organization.

PRAC is one of only two law firms in Ohio, up until recently, who would represent prisoners in Civil Rights Actions. They receive dozens of letters each day from prisoners across Ohio complaining about a variety of issues. Like most non-profit Prisoner Rights organizations, PRAC relies on a few volunteer attorneys, and volunteer law students from the local University, in this case the University of Cincinnati College of Law. PRAC is generally understaffed and overworked, but does a good job with the cases it decides to accept.

After receiving 85 medical/dental complaints, from one side of one Ohio prison in less than two weeks, staff reviewed the previous year of letters and found an extremely high percentage complained of the inability of the prisoner to obtain medical or dental care. (Prisons are usually segregated internally, e.g., "North Side & South Side," which split yard time. This is a security measure to allow for the separation of groups or individuals who are a risk of fighting).

A decision was made to start visiting a random selection of prisoners. Fussell, Love and Roberts were among the prisoners visited and interviewed by PRAC attorneys. As a result of those interviews, and the Grievances PRAC had received copies of from them, the above Class Action was filed, claiming systemic failure and inadequate medical and dental care for all of Ohio's prisoners.

A Medical Investigation Team, (MIT), headed by Fred Cohen, ESQ., LL.B., LL.M., of Tucson, Arizona, was appointed by the Federal Court. A sample of correctional facilities in Ohio was visited by the Team, beginning in the summer of 2004, with the Final Report to the Court due by December 15th, 2004. After a short delay, on January 26th, 2005, the Medical Investigation Team issued the complete Final Report of Findings, after visiting eight of the twelve originally scheduled institutions. The ODRC agreed to the reduced number of institutions after the State hired it's own Special Medical Investigation Committee, and it reported finding systemic failure at all levels of medical and dental care system in all of Ohio's prisons.

The Court appointed MIT found, "a clear pattern of problems emerged early in our work and was confirmed as we continued." (Final Report at page 1). The 361 page Final Report found systemic life-threatening inadequate medical care at all levels of the medical care system in Ohio's prisons, with the exception of the OSU Medical Center. The conclusion was that if an Ohio prisoner lived long enough to be sent to OSU, he or she would probably survive to leave there, although the after care at medical units ran by the ODRC might still kill him or her.

An initial Settlement Agreement was submitted to the U.S. District Judge and rejected in August 2005. The ODRC had insisted on not admitting to an Eight Amendment violation. Judge Beckwith rejected the Agreement, stating that under the provisions of the 1996 Prison Reform Litigation Act, she was prohibited from retaining jurisdiction over the case and controversy unless a Constitutional violation was involved. She told the parties that unless an Agreement could be reached, the case would proceed to trial.

Faced with going to trial and having not only the court appointed MIT testify against the ODRC, but also the Special Medical Investigating Committee, that the State of Ohio had hired, testifying against the State, the ODRC folded and agreed to admit a systemic failure of Ohio's prison medical care system arising to a violation of the Eight Amendment. That wording, although "fudged" somewhat, appears in the new Settlement Judgment that was accepted by the Court on October 6th, 2005.

There are over 30 Stipulated Agreements in the new Settlement Judgment. The most important of which are: 

1.) The Settlement provides for the hiring of 296 licensed medical professionals, including 21 new Doctors, at Ohio's 33 prisons over the next four years; 

2.) The Court appointed Medical Investigation Team now becomes the Medical Oversight Team, charged with seeing to the implementation of the agreed upon changes over the next five years, and is to report directly to the Court as to any problems or breaches of the Judgment. 
The Federal Court will retain jurisdiction over Ohio's Prison Medical and Dental Care System;

3.) Chronic Care for prisoners with AIDS, Asthma and six other Chronic Medical Conditions are to be given special attention by the Medical Oversight Team in the development of adequate Chronic Care Protocols and Practices;

4.) All Medical Protocols, ODRC Medical Policies and ODRC Medical Administrative Regulations are to be completely rewritten and updated to the standards acceptable in the medical community;

5.) The ODRC practice of double-charging prisoners Medical Co-Pay, charging Co-Pay for Chronic Medical Conditions, or follow-up visits for the same medical problem, and charging indigent prisoners Co-Pay, will cease. Ohio's present "$9.00 per month" indigency standard will be reviewed;

6.) Prisoner's who were sentenced before the Medical Co-Pay statute was enacted, and who under the Ohio Constitution's prohibition against Ex Post Facto Laws, and the plain prospective language of the statute itself, were not required to pay a Medical Co-Pay, but who have been charged a Co-Pay anyway by the ODRC, will be allowed to litigate that action separately to recover their money;

7.) New and updated medical equipment will be purchased where necessary. Other issues being discussed include a new ODRC Medical Protocol requiring the Correction Reception Center to obtain, for new prisoners being processed into the ODRC, complete Medical Records for those new prisoners from their private physicians or hospitals on the street, and for those records to be included in the prisoner's Medical Record. The purpose of this is both to evidence pre-existing medical conditions, and to meet the requirements of sound medical practice. Previously, every new prisoner was treated as if he had just been reborn and had no previous medical history.

Further, the practice of completely re-diagnosing prisoners, and changing their medical treatment and prescriptions, upon transfer and arrival at a new prison, will be reviewed. This practice stemmed from the separate Doctors contracting at separate prisons, and their desire to cut medical costs.

Instead of accepting treatments that sometimes took months or years for the previous attending physicians to "get right," for a particular prisoner, upon transfer the new attending physician would start allover at the bottom-rung of treatment options. This resulted in previously ineffective treatments, or treatments with unacceptable side-effects, being repeated for the prisoner, until the regime usually arrived at the same treatment the prisoner was on when he arrived at the new prison.

Consider a prisoner has no option to refuse treatment, even if he knows the treatment ordered is wrong for him, without forfeiting the right to all treatment. This also results in prisoners suffering chronic pain, for instance for herniated disks, being required to suffer pain for months until the new Doctor accepted "Motrin," or "Tylenol" does not work, and placed the prisoner back on prescription pain medication, like Ultrim, that he was on in the first place.

Some prisoners in Ohio actually dread having their security status lowered, and being transferred to a lesser security prison, because they know they will have to suffer for months from their chronic medical conditions until the new Doctor at the new institution gives up trying to save money on their treatment.

The estimated cost of the Settlement Judgment to Ohio over the next ten years is approximately $250 million dollars in additional appropriations for Medical and Dental care for Ohio's prisoners. A $22 million dollar "emergency" appropriation was already approved and spent for the 2004-2005 fiscal year, and a $19 million dollar increase in the 2005-2006 fiscal year appropriation was approved by the Ohio Legislature, bringing the amount already spent by Ohio in anticipation of losing the Class Action to $41 million dollars as of the date of the Settlement Judgment.

Fussell, Love and Roberts will remain as Class Representatives for the five-year duration of the Federal Oversight of Ohio's Prison Medical Care System. Costs, expenses and attorney fees were awarded to Class counsels, and additional costs, expenses and fees accumulated over the next five years, at the rate approved by the PLRA, will be paid, by the State of Ohio.

Local media coverage has been practically non-existent of this major victory for Ohio prisoners. One local Cincinnati TV station reported that Ohio had "made some concessions," in "settling" the lawsuit. 
Notice of the Settlement Judgment was posted in every cellblock in every Ohio prison on October 7th, 2005. Objections to the Settlement Judgment by Class Members are due by November 1st, 2005. A Final Hearing before the U.S. District Court is scheduled for November 16th, 2005.

Damages were sought for the named Plaintiffs only, and will be settled by arbitration. Class Members other than the named Plaintiffs must opt out of the suit and bring separate actions for any damages they may feel they are due individually. The Class Action sought Injunctive Relief only for the Class. 

Until next time, this is Jim Love reporting From The Front Line. 

James F. Love #329-475
Lebanon Correctional Inst.
P.O. Box 56
Lebanon, Ohio 45036

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©2005 James Love. All Rights Reserved.
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