5.5.20

Federal Brooklyn Jail Intentionally Destroying Medical Records

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A federal jail in Brooklyn, New York, that houses roughly 1,700 people is destroying medical records as part of a deliberate effort to obscure the number of incarcerated people infected with the coronavirus and to avoid providing them adequate care, alleges the report of a medical expert who toured the facility April 23 as part of a court-ordered inspection.
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The report, filed Thursday as part of a putative class-action lawsuit by people held in custody at the Metropolitan Detention Center in Brooklyn, casts doubt on assertions by the Bureau of Prisons, which runs the jail, and the U.S. Attorney’s Office for the Eastern District, which serves as counsel for the bureau. The Bureau of Prisons and federal prosecutors have insisted in court that the situation at the jail is under control. But the medical examiner’s report — which contradicted prison assertions that Centers for Disease Control and Prevention guidelines were being followed — suggests that the six people in custody who have tested positive for the disease likely represent the tip of the iceberg.



“There may be a significant number of cases of COVID-19 that are undetected, both propelling the pace of the outbreak within the MDC—and because the MDC is not a closed system—the larger community,” the report states, referring to the jail by its initials. “The MDC’s failures … represent gross deviations from adherence to correctional standards of care and CDC guidance.”

The report was written by Dr. Homer Venters, the former medical director for New York City’s jails, who oversaw that system’s response to the H1N1 pandemic in 2009, as well as outbreaks of other diseases in city jails.

Far from being prepared to contain a coronavirus outbreak, MDC’s practices “put detainees and staff at grave risk of infection, serious illness and even death,” Venters wrote. “Several current practices in MDC actually promote a more rapid spread of COVID-19 inside the facility.”

Venters found that MDC’s screening for the disease is woefully inadequate, consisting entirely of inconsistent temperature checks. None of the men he spoke to had been screened for other symptoms. Part of the problem, Venters learned, is that the system by which incarcerated people request medical care is functionally broken. The incarcerated people he interviewed said they generally waited three to seven days after submitting a request before they were seen by medical staff. Some people told him that they never received any response at all. In an April 27 deposition, Stacy Vasquez, the jail’s health services administrator, testified that it often takes two weeks for medical requests at the jail to be addressed.

“This practice, described by Ms. Vasquez, appears to be the intentional destruction of medical records. During a viral pandemic, such as the COVID-19 outbreak, this is a very alarming practice.”

Venters reviewed the electronic sick-call requests made by incarcerated people between March 13 and April 13 and found 147 requests that described coronavirus symptoms identified by the CDC. In 37 of those requests, the person asking for medical care noted that this was not the first request they’d made. The number of reported coronavirus symptoms far exceeds the number of tests MDC has performed. To date, jail officials have only tested 10 incarcerated people for the disease. Another two were tested at nearby hospitals, and an additional five people have been placed in medical isolation but have not been tested. According to Vasquez, the jail only has 10 Covid-19 tests on hand.

Pressed repeatedly in her deposition on what standards the jail used to determine who was tested, Vasquez would only say that the decision is a clinical one made by medical staff, declining to elaborate. She insisted that the shortage of tests has not led to any rationing of testing and declared that she was unaware of anyone at the jail who had complained of symptoms and had not been placed in medical isolation.
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The electronic medical requests, however, don’t tell the whole story, because people can only file them when they have access to the computers in the common areas of their housing units. In recent weeks, the units have been on near-perpetual lockdown, with people confined to their cells except for one hour every few days to use showers and telephones. More often, medical requests are written on slips of paper and passed to guards or staff. But, according to the Vasquez deposition, the standard practice at the jail doesn’t retain those slips after they’ve been used to schedule an appointment. Instead, prison staff shred the slips.

“This represents a gross deviation from basic health care standards,” Venters noted. Without the slips, he wrote, MDC Brooklyn has no record of how many medical requests were made or responded to — and whether any care provided was actually responsive to the initial complaint.
Dr Homer Venters Report From Tour of MDC Federal Jail22 pages

“This practice, described by Ms. Vasquez, appears to be the intentional destruction of medical records,” Venters wrote, which prevents MDC from doing basic quality assurance in its medical care. “During a viral pandemic, such as the COVID-19 outbreak, this is a very alarming practice.”

MDC officials are making no effort to track symptoms of the disease within the facility, making it impossible to monitor its spread, Venters wrote. “I view this refusal to track the incidence of COVID-19 symptoms among the patients in their charge as especially egregious and intentionally designed to avoid knowing the extent of the outbreak and providing the necessary care.”

Getting a peek inside the jail wasn’t easy. Frustrated at judges’ reluctance to release sick and elderly patients from MDC in the face of prosecutors’ insistence that the jail poses no meaningful health risk, lawyers filed a habeas writ in late March in an effort to use the courts to pry some information about conditions inside from the notoriously secretive Bureau of Prisons. As the lawsuit reached the discovery stage, they asked for an expert in correctional medicine, Venters, to tour the facility.

For weeks, government lawyers had argued that arranging for anyone to visit the prison would be an undue burden. Besides, Assistant U.S. Attorney James Cho argued, Venters had already written a declaration for the incarcerated petitioners. What more did he expect to learn from a site visit?
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Venters’s first declaration had been limited to expressing his professional opinion that MDC’s numbers aren’t accurate. Cases in New York City jails on Rikers Island exploded from two cases to 454 in the space of two weeks, he noted. “If a similar rise in the number of cases has not been observed in the Brooklyn Federal Detention Center, I would be concerned that the facility is not following accepted infection control and surveillance measures.” Anyone exhibiting symptoms of the coronavirus should be tested, Venters wrote in his initial declaration.

Eventually, Judge Rachel Kovner sided with the petitioners and ordered that it was indeed appropriate for Venters to tour MDC. But lawyers with the U.S. Attorney’s Office for the Eastern District continued to fight every step of the way. Venters could come in the building, they suggested in a letter detailing their proposed guidelines for the visit, but “the expert and petitioners’ attorney shall not be permitted to talk to any inmates during the inspection.”

Alternately, they argued, if the judge were to decide that incarcerate people would be allowed to speak with the visitors, Bureau of Prisons officials should be able to listen in. They also wanted to ensure that only Venters be allowed into the Special Housing Unit, which includes isolation cells. Lastly, prosecutors argued, Deirdre von Dornum, the attorney-in-charge for the Federal Defenders of New York, the public defense organization that represents many of the people held at the jail, should not be allowed to join the tour.

After hearing lengthy arguments on the disputes, Kovner ruled that Venters could talk to incarcerated people. But the federal officials did not relent: When the inspection team arrived at MDC for its tour on April 23, it was met by U.S Attorney for the Eastern District Richard Donoghue himself — an unusual personal appearance for such a tour. Donoghue insisted to the site-visit team that von Dornum and other lawyers were not permitted to speak to people in custody. The team suspended its inspection and made an emergency call to Magistrate Judge Roanne Manne, who affirmed that the rest of the team could indeed speak with the people they met to help Venters in his fact-gathering.

In throwing up all these objections, government lawyers seemed to be seeking to prevent a repeat of an official inspection of MDC that had taken place 14 months earlier, which had proved a catastrophic embarrassment for the Bureau of Prisons and its lawyers. That incident came as part of a lawsuit related to a weekslong power outage and failure of the heating system in the midst of a frigid polar vortex. Though the government had then — as now — insisted that everything was fine inside MDC, Judge Analise Torres undertook a tour of the jail herself, accompanied by von Dornum, whose familiarity with the jail made her a useful guide. Torres spoke to incarcerated people throughout the jail, and the transcript made of her visit revealed the depths of the government’s lies and neglect in horrific detail: men forced to sleep under ceilings leaking like waterfalls, suicide attempts ignored by guards, festering wounds, and severe medical conditions left entirely untreated.

Amid the coronavirus pandemic, there’s other evidence that jail officials are trying to cover up a medical crisis at their facility. The Federal Defenders of New York received numerous calls from women at the facility on Friday, April 17. A lieutenant who supervises the unit had recently tested positive for the disease, and multiple women in the open dorm-style unit were reporting coronavirus symptoms but not receiving medical care. The following Monday, according to five phone calls received by the Federal Defenders after the meeting, an assistant warden assembled the women for a town hall meeting. The official told them that, as a result of their calls to the Federal Defenders, they would not be permitted to get off their bunks for four days a week — not merely confined to their dorm, but confined to their closely spaced beds.
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“They said we were complaining too much to our lawyers,” wrote Derrilyn Needham, a 52-year-old woman held at the jail, in a court declaration filed April 30.

According to a recent court filing in an unrelated case, Needham, who works as a laundry orderly, washing the bedding and towels for her housing unit, lost her sense of smell, had bouts of dizziness and coughing, and felt like she was unable to get enough oxygen when she lay down — all symptoms of Covid-19. Needham suffers from a circulatory disorder and other serious medical conditions, so she was especially concerned. She repeatedly requested medical attention but was simply told to drink lots of tea and stay away from the other inmates, according to court documents. When the assistant warden visited the unit on April 20, Needham again informed her of her symptoms and asked if she could be tested, to which Flowers answered, “No.”

According to Needham and other reports from her bunkmates collected by von Dornum, Needham suffered additional retaliation for speaking up at the meeting. When she made her regular request for time on the unit’s phone to speak with the Federal Defenders, she was told that she would not be allotted her slot until 8 p.m., to ensure that the lawyer’s office would be closed by the time she made her call. As a result, multiple other women on the unit used their calls to inform the Federal Defenders that Needham was being silenced.

“The crime I’m charged with doesn’t permit me to be put to death. I’m not afraid of doing the time; I’m afraid of dying in here, on a death sentence.”

The lawsuit against MDC Warden Derek Edge currently has six named petitioners, but the lawyers representing them — from the Cardozo Law School Civil Rights Clinic and Emery Celli Brinckerhoff & Abady, as well as Debevoise & Plimpton — are seeking class-action status. Their suit alleges that confining people in such dangerous conditions constitutes a violation of their constitutional rights to be free from cruel and unusual punishment. They are asking the court to order the release of medically vulnerable people from the facility and to appoint a special master empowered to impose sweeping reforms of the facility’s conditions. The suit is demanding thorough coronavirus screening; adequate sanitation and personal protective equipment for staff and people in custody; adequate medical care; and consistent tracking and reporting of the disease’s spread.

A response from the government is due May 7, with arguments before the court scheduled for May 12.

In the meantime, the men and women inside MDC Brooklyn continue to wait and worry.

“I’m at my wit’s end,” Kassin Rivers, a 60-year-old man with a serious heart condition awaiting trial on bank robbery charges, told The Intercept. “A lot of us are sitting in here waiting to die. The crime I’m charged with doesn’t permit me to be put to death. I’m not afraid of doing the time; I’m afraid of dying in here, on a death sentence.”

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