author: WEXLER, District Judge.

text:
    William O’SHEA, Individually and as Executor of the Estate of Marion O’Shea, Deceased, Plaintiff, v. The UNITED STATES of America, Defendant.
    No. CV 83-3527.
    United States District Court, E.D. New York.
    Dec. 2, 1985.

      Pegalis & Wachsman, Great Neck, N.Y., for plaintiff.
    Raymond J. Dearie, U.S. Atty. by Thomas P. Battistoni, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

Plaintiff William O’Shea, on behalf of himself and as the executor of the estate of Marion O’Shea, commenced this action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2402, for negligence, medical malpractice, and wrongful death.

Plaintiff alleges that the Veterans Administration Medical Center in Northport, New York (“Northport”) acted negligently when its employees failed to admit plaintiff’s son John O’Shea on August 5, 1980. Plaintiff further alleges that this negligent act was the proximate cause of a murder and assault that occurred three days later when John attacked his parents with a hammer, killing his mother. The United States has moved for summary judgment. Fed.R.Civ.P. 56(b).

FACTS

John O’Shea, the son of William and Marion O’Shea and brother of Michael O’Shea, was born in 1944 entered the armed forces in 1966, and received a medical/honorable discharge in 1968. He married in 1970 but became separated from his wife in February 1973 and went to live with his parents. He stopped working as a computer operator at about the same time and has not been employed since.

On May 7, 1973, John was admitted to Beth Israel Hospital in New York City, claiming auditory hallucinations. After being placed in seclusion for the first twenty four hours of hospitalization because of hostility to the staff, he remained an in-patient with a diagnosis of acute paranoid schizophrenia until he was discharged on June 27, 1973.

Five years later, John was involuntarily admitted to Queens General Hospital and later to Creedmoor Psychiatric Center. He had barricaded himself in his room at his parents’ home and he carried a hammer because of his fears for his safety.

On approximately July 6, 1978, John was transferred to Northport as an in-patient, where he remained for approximately a year, after which he was treated as an out-patient at the Lynbrook Satellite Clinic (“Lynbrook”) of Northport until the date of the incident giving rise to this lawsuit. During his time as a patient of the VA at Northport and also when he was treated at Lynbrook, doctors prescribed a variety of medications for John. The dosages were lowered and in August 1979 medication was later discontinued entirely in an effort to establish a drug-free therapy. Drug therapy was promptly re-prescribed, however, when his condition worsened.

During his time as an out-patient at Lynbrook in the second half of 1979, John was evaluated monthly by a VA psychiatrist, Dr. Mocenigo, and continued to receive his medication. The periodic evaluations revealed that John’s condition was basically stable. He was still living at home with his parents, taking his medication, relaxed, and apparently getting along with family and friends. At no time during his treatment as an out-patient did John exhibit any violent behavior and he was never considered dangerous to himself and others.

After the coming of the new year, however, John’s behavior began to change. He began to talk less frequently with his family, he stopped eating with them, he spent more time alone in his room, and he began to lose weight. Dr. Mocenigo increased the dosages, although John’s condition continued to worsen, perhaps, as Dr. Mocenigo suspected, because John was not taking his medication. The doctor therefore administered >an intramuscular injection instead of oral dosages, but later reverted to oral administration of the drugs. In late spring and early summer John’s condition deteriorated further. He continued to lose weight. He ate sparingly in his room, where he spent most of his time, and rarely, if ever, communicated with his family. In July, Dr. Mocenigo changed the drug therapy to a more potent drug, but he did not prescribe intramuscular injections.

In July or early August, John disappeared from home, taking $3000 and the family car. On August 4, he was found in Albany, New York where he had been living in the car for about a day and a half. He was taken into police custody and sent to Samaritan Hospital in Troy. John’s family was contacted and his mother Marion and brother Michael went to Troy on August 5. An admission note, which was completed by a Dr. Armentano of Samaritan Hospital and given to Marion and Michael when John was discharged, summarized the highlights of John’s psychiatric condition. It noted that John had not taken his medication in several weeks and concluded that John “was amenable to returning” to Long Island with his family. In Dr. Armentano’s view, John “appeared to give tacit approval to being transported” to Northport. Dr. Armentano also stated that “the evaluation on the evening of admission revealed that the patient did not present any danger to himself or others.” Defendant’s Memorandum of Law, Exhibit E. On this basis John was discharged into the custody of his family.

With Michael driving and John beside him, the O’Sheas went directly to North-port, where John presented himself for voluntary admission. During the day of August 5 plaintiff William O’Shea, John’s father, had attempted to secure admission for his son at Northport. William was told, either by a Mrs. Sarah Velez, Northport’s admitting supervisor, or a Mrs. Miller of Congressman’s Wolf's office, that admission at Northport was on a first-home, first-served basis depending on the severity of the patient’s condition. William was also informed that in order for John to be transferred from Samaritan Hospital to North-port, it would be necessary for a physician or social worker at Samaritan Hospital in Albany to submit a medical report to Dr. Derman, Northport’s chief of psychiatry before John could be admitted there. It is not clear from the record and the parties dispute whether Michael or Marion knew of these admission procedures when they arrived at Northport in the early evening. Although Michael spoke with his father during the course of the drive back to Long Island, Michael was apparently unaware of any potential admissions difficulties at Northport and expected that John would be admitted when they arrived there.

At the time the O’Shea’s arrived at Northport, all beds in the psychiatric wards of the hospital were filled, and hospital policy dictated that only patients in an emergency, condition (i.e., those presenting a danger to themselves or others) could be admitted. The hospital could admit these patients on an emergency basis and for their safety during the night, they would be placed in another ward or area until the following morning when these emergency patients could be transferred to psychiatric wards after morning discharges created vacancies. If a patient did not present an emergency situation (i.e., the patient did not present an immediate danger to himself or others) then a patient seeking voluntary admission would be asked to report the following day for evaluation for admission when morning discharges created openings in the psychiatric wards.

After a member of the Northport nursing staff took a medical history, John was examined by a Dr. Manzano. Before Dr. Manzano began the examination, he reviewed John O’Shea’s entire medical file. From this file, Dr. Manzano learned that John had been treated for paranoid schizophrenia at Northport in 1978, and at Lynbrook until the present time, and that John had been prescribed medication since the initial hospitalization at Northport. The medical file did not show any history or inclination towards violence, any threats or menacing conduct, or any attempt to hurt himself or others. Dr. Manzano was aware, however, of the events that led to John’s initial admission in Northport in 1978, namely that he had carried a hammer at home in 1978 and had brandished a knife in 1977. Dr. Manzano also read the Samaritan Hospital admission note, which had been given to the Northport staff when the O’Shea’s arrived there from Troy. Therefore, Dr. Manzano was aware that John had not taken his medication in several weeks, that John had tacitly agreed to return to Northport for voluntary admission, and that John had been discharged into the custody of his family for that purpose. Dr. Manzano was also aware of the circumstances leading to John’s admission at Samaritan Hospital and of Dr. Armentano’s conclusion that John did not present any danger to himself or others. After a review of the Northport medical records, the Samaritan Hospital admission note, and the history complied by the Northport nursing staff, Dr. Manzano examined John for approximately thirty minutes. During the interview, John was polite, cooperative, and unemotional; he made no threats- and showed no inclination toward violence. In a medical record made at 9:45 that evening, Dr. Mazano indicated: “pt. (patient) stated ‘I am psychologically disturbed;’ affect flat; verbally underproductive; poverty of thought; denies hearing voices; homicidal or suicidal ideation not elicited; quiet; he wants admission.” Defendant’s Memorandum of Law, Exhibit F. Dr. Manzano’s notes also contain his recommendations that: 1) John return the following morning for admission; 2) John should take medication that evening; and 3) John be released to the custody of his brother. Id.

At the conclusion of the evaluation, Dr. Manzano spoke briefly with Michael O’Shea, and told Michael that John would not be admitted to Northport that evening, but if John returned the following morning, “you will have no difficulty getting him in tomorrow at the normal admitting time at 8:00.” Deposition of Michael O’Shea at 56. Michael O’Shea was incredulous that his brother could not be admitted that evening. Michael also told Dr. Manzano of his concern for his brother’s welfare and explained to Dr. Manzano that if John were not admitted that evening, John would not want to return the following day. Despite Michael’s voiced concern and the mutual recognition that John should be admitted, Dr. Manzano said “What can I do?” Id.

In an affidavit, Dr. Manzano stated that the lack of available space that evening in the Northport psychiatric wards was not determinative of whether John would be admitted because “In such cases I directed that the nursing staff make a bed available in another ward or area so that dangerous patients could be safely kept overnight and then be transferred to the psychiatric wards the following day after morning discharges created open beds.” Affidavit of Dr. Manzano, 1118. Dr. Manzano also stated that “Had I believed that John O’Shea was dangerous to himself or to others on the night of August 5, 1980, I would have admitted him to the hospital notwithstanding the unavailability of open beds in the psychiatric wards.” Id. In Dr. Manzano’s opinion, John O’Shea posed no danger to himself and others on the night of August 5. Dr. Manzano was confident that John would be safe at home that evening, that he would take his medication, and that the family would return John to Northport the next morning.

Despite Dr. Manzano’s confidence, John did not return to Northport for admission the next day, nor did he appear there on August 7. Although William tried to take John to Northport on August 6, he refused to go and no one from the O’Shea family contacted Northport concerning John’s refusal. William has since testified that John made no threats to any of the family members and he exhibited no violent tendencies. Deposition of William O’Shea, at 39-40. The situation was unchanged the following day, August 7. John was not violent, made no threats and, in addition, no one tried to take John to Northport. No one called Northport or the police and apparently no effort was made by either William or Marion to have John admitted at Northport that day. Id. at 43-44. Unfortunately, John O’Shea’s relationship with his parents came to a violent and tragic conclusion the following day, August 8, when John murdered his mother with a hammer and assaulted his father when he came to her rescue.

DISCUSSION

Under the Federal Tort Claims Act, the district courts have exclusive jurisdiction

on claims against the United States, for money damages ... for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government ... under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). Accordingly, this Court must look to the law of New York to determine the extent of liability. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).

In New York, it is a well-established rule that there is no liability for an erroneous professional judgment. Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760 (1898); Cummings v. Fondak, 122 Misc.2d 913, 474 N.Y.S.2d 356 (App.Term 1st Dep’t 1983) (per curiam). In establishing the standard for professional malpractice, the New York Court of Appeals has held that “The law holds him liable for an injury to this patient resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care, or the failure to use his best judgment.” 155 N.Y. 209, 49 N.E. 760. The Court of Appeals further stated that “The rule requiring him to use his best judgment does not hold him liable for a mere error of judgment, provided he does what he thinks is best after a careful examination.” Id. This standard has guided New York courts through all phases of professional malpractice, including psychiatry. Bell v. New York City Health & Hospitals Corp., 90 A.D.2d 270, 456 N.Y.S.2d 787, 793 (2d Dep’t 1982) (citations omitted). Lawsuits for psychiatric malpractice in New York courts often involve the physician’s decision to release someone who had been confined for treatment, and New York courts will not impose liability when they find that the psychiatrist made a professional medical judgment. See Bell v. New York City Health & Hospitals Corp., supra; Fiederlein v. City of New York Health & Hospitals Corp., 80 A.D.2d 821, 437 N.Y.S.2d 321 (1st Dep't 1981); Paradles v. Benedictine Hospital, 77 A.D.2d 757, 431 N.Y.S.2d 175 (3d Dep’t 1980); Centeno v. City of New York, 48 A.D.2d 812, 369 N.Y.S.2d 710 (2d Dep’t 1975), aff'd 40 N.Y.2d 932, 389 N.Y.S.2d 837, 358 N.E.2d 520 (1976); Cameron v. State of New York, 37 A.D.2d 46, 322 N.Y.S.2d 562 (4th Dep’t 1971); Higgins v. State, 24 A.D.2d 147, 265 N.Y.S.2d 254 (4th Dep’t 1965); Seavey v. State, 21 A.D.2d 445, 250 N.Y.S.2d 877 (4th Dep’t 1964); Taig v. State of New York, 19 A.D.2d 182, 241 N.Y.S.2d 495 (3d Dep’t 1963); St. George v. State of New York, 283 A.D. 245; 127 N.Y.S.2d 147 (3d Dep’t 1954); Statini v. State of New York, 202 Mise. 689, 112 N.Y.S.2d 20 (Ct.Cl.1952).

Building on the rule first laid down in Pike, New York courts recognize that a number of policies also affect the state’s decision to release a psychiatric patient, namely, the safety of both the patient and the public at large as well as the liberty of the confined patient. In Statini v. State, 202 Mise. 689, 112 N.Y.S.2d 20, 23-24 (Ct.Cl.1952), a case similar to the one before this Court, the New York Court of Claims recognized the value of the state’s convalescent status program, which “aims to take the patient out of the hospital which is a place of care as distinguished from a place of confinement, and move him into a normal environment in aid of his social adjustment.” 112 N.Y.S.2d at 23. New York has sought to return the patient to society and in St. George v. State, 283 A.D. 245, 127 N.Y.S.2d 147 (3d Dep’t 1954), the Appellate Division recognized that imposing liability upon the state for a released patient’s tortious conduct “would mean that the state could release no one from any state mental institution without being under the risk of liability for whatever he did thereafter, and the result would necessarily be reluctance to release and the unnecessary confinement of persons who would benefit by release.” 283 A.D. at 249, 127 N.Y.S.2d at 151. In Taig v. State, 19 A.D.2d 182, 183, 241 N.Y.S.2d 495, 496-97 (3d Dep’t 1963), the Court sought to balance the state’s policy of rehabilitating psychiatric patients through convalescent out-patient programs against the risk to public safety. There the court concluded that the risk was acceptable “even though it may sometimes result in injury to the patient or others.” Id. See also Higgins v. State of New York, 24 A.D.2d 147, 265 N.Y.S.2d 254 (4th Dep’t 1965) (citing Excelsior Insurance Company v. State of New York, 296 N.Y. 40, 46, 69 N.E.2d 553, 556 (1946)). Although the instant case does not involve a decision to release but only a failure to re-admit, New York jurisprudence makes it clear that the professional medical judgment immunity extends to out-patient cases and other facets of the admissions decision. Furthermore, though the United States is not bound by New York’s policy of rehabilitation through release, the United States has consented to suit under the law of the place where the tort occurred and there has been no showing that Northport and Lynbrook’s out-patient treatment policies and admissions decisions differ from those employed by New York.

Despite criticism of the professional medical judgment immunity, Topel v. Long Island Jewish Medical Center, 55 N.Y.2d 682, 685-97, 446 N.Y.S.2d 932, 934-41, 431 N.E.2d 293 (1981) (Fuchsberg, J., dissenting), it remains the law of New York. cf. Huntley v. State of New York, 62 N.Y.2d 134, 476 N.Y.S.2d 99, 464 N.E.2d 467 (1984) (per curiam) (hospital liable for suicide of patient when professional medical judgment was not exercised). Although the New York Court of Appeals has stated that “the line between medical judgment and deviation from good medical is not easy to draw,” Topel v. Long Island Jewish Medical Center, 55 N.Y.2d 682, 684, 446 N.Y.S.2d 932, 934, 431 N.E.2d 293 (1981) (memorandum), there must be “something more” than an error in judgment. See Homere v. Stillman, 48 A.D.2d 422, 370 N.Y.S.2d 246 (3d Dep’t 1975); See also Cohen v. State of New York, 51 A.D.2d 494, 382 N.Y.S.2d 128 (3d Dep’t 1976) (failure to keep detailed medical notes was more than an error in judgment); Clarke v. State of New York, 99 A.D.2d 616, 972 N.Y.S.2d 170 (3d Dep’t 1984) (no professional medical judgment immunity when physician was aware of patient’s drug abuse, assaultive and bizarre behavior, prior suicide attempts, and deteriorating condition); Bell v. New York City Health & Hospitals Corp., 90 A.D.2d 270, 456 N.Y.S.2d 787 (2d Dep’t 1982) (no professional medical judgment because physician failed to make a careful examination); cf. St. George v. State of New York, 127 N.Y.S.2d at 150-51 (“it would place an unreasonable and unfair burden upon the state if it were to be held responsible in damages for everything that a person does after he has been discharged or released from one of its state institutions, even though the release was through an error of judgment, unless there is something more present____”). The immunity will protect the state from liability, even in the presence of an erroneous decision, when there has been a careful examination of the patient’s condition. Cameron v. State of New York, 37 A.D.2d 46, 322 N.Y.S.2d 562 (4th Dep’t 1971).

Therefore, the issue in this case is whether Dr. Manzano made a professional medical judgment when he decided not to admit John O’Shea to Northport on the evening of August 5, 1980 because he failed to make a careful examination. After a thorough examination of the record, the Court concludes that Dr. Manzano made a professional medical judgment and therefore the United States is entitled to summary judgment.

On the record before the Court, it is clear that Dr. Manzano made a careful examination of John O’Shea’s condition before deciding to defer admission until the following day. On the evening of August 5, no significant element of John’s medical record and condition was overlooked by Dr. Manzano. He had access to and consulted John’s entire Northport file. In addition, Dr. Manzano had a history compiled that evening by a Northport nurse and Dr. Armintano’s note from Samaritan Hospital. Dr. Manzano also examined John for half an hour that evening. In short, Dr. Manzano had available to him and considered all the sources of information that would reveal'whether John was an emergency case. This case is therefore unlike either Bell v. New York City Health & Hospitals Corp., supra, where the psychiatrist failed to examine all of the relevant information before deciding to release a patient or Clarke where the state failed to keep complete records.

In addition, the record before Dr. Manzano did not reveal a psychiatric patient requiring immediate hospitalization. Aside from the incidents that led to John’s hospitalization in 1978, there was no history of violence, threats, or aggressive behavior. This includes John’s entire time as an outpatient at Lynbrook. During his interview with John, Dr. Manzano elicited no homicidal or suicidal impulses, threats, or an inclination towards violence. Finally, this is not a case where a psychiatrist must hazard a guess about the violent potential of a soon to be released psychiatric patient because John had already been an out-patient for over a year before he sought voluntary-admission at Northport on August 5.

Plaintiffs contend that Dr. Manzano was wrong when he failed to admit John that evening and that the evidence points to a paranoid schizophrenic whose condition was deteriorating rapidly. It may have been wrong to defer John’s admission to the following day. But the law requires that there must be “something more” than an erroneous judgment before a defendant will be liable. In this case, that “something more” is not present. Despite John’s apparent deterioration, there was no indication, either in John’s past or present condition as an out-patient, that John would become violent and homicidal. Furthermore, Dr. Manzano was fully aware of John’s medical history and prognosis on the evening of August 5 when he denied admission.

The Court is acutely aware of the enormous tragedy that has been visited upon the O’Shea family. Nevertheless, after drawing all factual inferences favorably to plaintiff, United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962), the Court cannot discern any material issues of fact that preclude the conclusion that Dr. Manzano made a professional medical judgment when he decided not to admit John to Northport on August 5, 1980. Fed.R.Civ. 56(c).

Accordingly, defendant’s motion for summary judgment is granted and the complaint is dismissed. The Clerk of the Court is directed to enter judgment for the United States.

SO ORDERED.

      . Specifically, on June 27, 1978, John carried a bar and hammer at home in order to protect himself and he agitated, hostile, and finally had to be committed because he had become violent and unmanageable. It is unclear from the record how often John carried a hammer at home. The record also indicates that John brandished a knife on an aunt during December of 1977.


source: Caselaw Access Project

author: MENTZ, District Judge.

license: Public Domain

text:
    ELMWOOD PLANTATION, INC. v. RUUD WATER HEATER DIVISION, et al.
    Civ. A. No. 84-2509.
    United States District Court, E.D. Louisiana.
    Dec. 2, 1985.

      Donald A. Hammett, Kevin O’Bryon, Hammett, Leake & Hammett, New Orleans, La., for plaintiff.
    Dermot S. McGlinchey, Eve Barrie Masinter, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for defendant.
   MENTZ, District Judge.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The plaintiff, Walbrook, Ltd. (Walbrook), in its capacity as an excess insurer of Ruud Water Heater Division, City Investing Company (Ruud), has brought this action against National Union Fire Insurance Company (National), Ruud’s primary insurer. Succinctly stated, Walbrook is seeking the recovery of amounts allegedly paid by Walbrook but owed by National in satisfaction of a judgment rendered, in favor of Elmwood Plantation, Inc., (Elmwood) and against their mutual insured, Ruud.

This Court held a non-jury trial on September 12, 1985 and the matter was subsequently taken under submission. Having reviewed the evidence, the memoranda of counsel, and the applicable law, the Court now enters its Findings of Fact and Conclusions of Law. To the extent that overlap exists between them, the Court’s Findings of Fact and Conclusions of Law are to be treated interchangeably.

FINDINGS OF FACT

(1)

On December 17, 1979, Elmwood Plantation, Inc., filed suit No. 233-829 against Ruud, et al, in the Twenty-Fourth Judicial District Court, Parish of Jefferson, State of Louisiana. This case was bifurcated for separate trials on the issues of liability and damages.

(2)

On July 26, 1982, after trial on the issue of liability, judgment was rendered in favor of Elmwood and against Ruud and LaMatt Agency, Inc. ■ On June 22, 1983, the Louisiana Fifth Circuit Court of Appeal affirmed the determination of liability as to Ruud but reversed the judgment against LaMatt Agency, Inc. See Elmwood Plantation v. Ruud Water Heater Division, 435 So.2d 507 (La.App. 5th Cir.1983). Costs were assessed against Ruud.

(3)

The damages sustained by Elmwood occurred during the policy periods of a primary policy of insurance issued by National to Ruud with limits of ONE MILLION DOLLARS ($1,000,000), an excess policy of insurance issued by Walbrook and other excess companies and underwriters at interest with limits of FIVE MILLION DOLLARS ($5,000,000), and a final layer of insurance issued by Lloyd’s of London with limits of FIFTEEN MILLION DOLLARS ($15,000,000).

(4)

The trial on damages was then held and on July 21, 1983, the state court entered judgment in the sum of FOUR AND ONE-HALF MILLION DOLLARS ($4,500,000) in favor of Elmwood Plantation, Inc., and against Ruud “with interest at the rate of 1% per month, or any part of a month, from and after August 21, 1983”. The judgment further ordered Elmwood to pay to the Intervenors, California Union Insurance Company and Lexington Insurance Company, the respective amounts of their claims.

(5)

On July 21, 1983, the Honorable Lionel R. Collins, the District Court Judge, signed an order which reflected that the judgment was actually a Consent Judgment. The Order expressly reserved the rights of the insurers to litigate their liability for “costs of Court, attorney fees and other expense items”. The Order also reserved Walbrook’s rights to recover costs, expenses and attorney fees from National. Walbrook did not reserve its rights as to interest. In the Order, National reserved all of its rights against Walbrook and the other excess insurers.

(6)

On July 21, 1983, Elmwood Plantation, Inc., and Ruud, through their attorneys, signed an Agreement recognizing the fairness of the amount of the consent judgment. The parties agreed that they would not (1) seek a new trial in this case, (2) seek to have the judgment nullified, altered, amended or changed, or (3) seek costs. The Judgment, Order and Agreement do not provide for the payment of interest, costs or attorney’s fees either as part of or in addition to the lump sum settlement amount of FOUR MILLION FIVE HUNDRED THOUSAND DOLLARS ($4,500,-000) nor does it designate any amounts which are to be considered as interest, costs or attorney’s fees.

(7)

The excess coverage underwritten by Walbrook and California Union obligated California Union to pay 20% of the FIVE MILLION DOLLAR ($5,000,000) limit of liability and Walbrook to pay 80% of the FIVE MILLION DOLLAR limit of liability. The Judgment was paid in full prior to August 21, 1983 by National paying $1,000,000, Walbrook paying $2,800,000, and California Union paying $700,000.

(8)

The recovery of $4,500,000 by Elmwood Plantation, Inc., was distributed as follows:

California Union Insurance Company $ 117,076.71
Lexington Insurance Company 303,000.00
Reimbursement of Attorney Costs 160,045.26
To Elmwood Plantation, Inc. 2,351,926.82
To Elmwood’s attorneys 1,567,951.21
TOTAL DISBURSEMENTS $4,500,000.00

O)

After the proceeds were received and disbursed by John J. McCann, Elmwood’s attorney, a Satisfaction of Judgment was filed in the State Court record. Elmwood did not file a Rule to Tax Costs or to Assess Legal Interest either before or after the filing of the Satisfaction of Judgment.

(10)

Elmwood’s costs and attorney fees were paid in full out of the money received from the insurers of Ruud. The National policy provides that National will pay, in addition to its ONE MILLION DOLLAR ($1,000,-000) limit of liability:

“... All expenses incurred by the company, all costs taxed against the insured in any suit defended by the company and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has tendered or deposited in Court that part of the judgment which does not exceed the limit of the company’s liability thereon”. (Emphasis added.)

(ID

Walbrook’s policy No. 650/781350 provides that Walbrook and certain other excess insurers will pay:

Coverage
... all sums which the Assured shall be obligated to pay by reason of the liability:
a. Imposed upon the assured by laws, or
b. Assumed under contract or agreement by the Named Assured and/or any officer, director, stockholder, partner or employee of the Named Assured, while acting in his capacity as such, ... (Emphasis added.)
Limit of Liability
Underwriters hereon shall be only liable for the ultimate net loss in excess of either:
a. The limits of the underlying insurance as set out in the attached schedule in respect of each occurrence covered by said underlying insurances; or
b. $25,000.00 ultimate net loss in respect of each occurrence not covered by said underlying insurance. (Emphasis added.)

(12)

The National policy is set out as an underlying insurance policy in the schedule attached to excess insurers’ policy No. 650/781850.

(13)

Elmwood incurred $6,310.45 in court costs and expenses with the Clerk of Court for the Twenty-Fourth Judicial District Court and the Jefferson Parish Sheriff’s Office. Elmwood paid $2,523.00 in court costs and expenses and the remaining amount was paid by or on behalf of the defendants.

(14)

Nelville Landry represented Ruud and the insurers at the trial on damages. Mr. Landry’s bills were paid in full by General Adjustment Bureau and he has no further claim for costs, expenses or attorney’s fees. John Marks represented Walbrook and other excess underwriters after the liability judgment was rendered against Ruud. Mr. Marks participated in the trial on damages and was present when the Judgment, Order and Agreement were drafted by the parties. Dermot S. McGlinchey represented National at the conclusion of the damage aspect of the trial and was present when the Judgment, Order and Agreement were drafted by the parties.

(15)

Walbrook has made the following claims:
(a) The $4,500,000 consent judgment was a lump sum figure which included all interest, costs and attorney’s fees.
(b) National owed its policy limits of ONE MILLION DOLLARS $1,000,-000, legal interest from date of judicial demand to date of judgment on the policy limits, or $375,000.00, Elm-wood’s Court costs which were included as part of the $4,500,000 judgment and totaled $160,045.26; Elm-wood’s attorney’s fees of $1,567,-951.21 which were included as part of the $4,500,000 judgment.
(c) Walbrook paid these amounts on behalf of National and is entitled to recover these sums, plus legal interest, from National.

CONCLUSIONS OF LAW

(1)

The Court has subject matter jurisdiction over this dispute pursuant to 28 U.S.C. § 1332, diversity of citizenship.

(2)

Walbrook’s legal claims against National arise under Articles 1855 (formerly 2134) and 1829 (formerly 2161) of the Louisiana Civil Code.

(3)

La.Civ.Code Ann. Art. 1855 states that: Performance may be rendered by a third person, even against the will of the obligee, unless the obligor or the obligee has an interest in performance only by the obligor.
Performance rendered by a third person effects subrogation only when so provided by law or by agreement.

(4)

La.Civ.Code Ann. Art. 1829 provides in pertinent part that:

Subrogation takes place by operation of law:
(3) In favor of an obligor who pays a debt he owes with others or for others and who has recourse against those
others as a result of the payment,____ (5) In the other cases provided by law.

(5)

La.Code Civ.Proc.Ann. Art. 1920 (West 1961) governs the taxing of costs in state district courts and reads as follows:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the Court may render judgment for costs, or any part thereof, against any party, as it considers equitable.

(6)

In Louisiana, a rule to tax costs may be filed after a final and executory judgment. See La.Rev.Stat.Ann. 13:3666(B)(2) (West 1968); Bentley v. Industrial Fire Protection, Inc., 350 So.2d 982, 984 (La.App. 2d Cir.1977). The finality of the judgment would not be disturbed by a simple numerical determination of some item already adjudged. A judgment on a rule to tax costs is only incidental to the main suit in which an executory judgment for costs has already been rendered. See Crichton v. Krouse, 150 So. 443 (La.App. 2d Cir.1933). Although the suit is terminated, costs remain an incident of the suit and one of its issues until paid. Bentley, supra, at 984, citing Morries v. Zeller, 4 Orl.App. 411 (1907).

(7)

Expert witness fees are an element of costs and are to be fixed by the trial judge after the trial of a rule to tax the fees as costs. See, Daly v. Abramson, 117 So.2d 772 (La.App. 2d Cir.1960); Jansky v. Lucich, 159 So.2d 730 (La.App. 4th Cir.1964):

(8)

The .costs for which a party cast in a suit is liable cannot be recovered in a direct action in the district court, but must be taxed in the original suit in which they were incurred, and enforced in the court in which the suit was brought. Casey v. H. Abraham & Son, 113 La. 581, 37 So. 484 (1904).

(9)

When experts are called to testify at trial, the amount of their fees can be fixed by the court with reference to the value of time employed, the degree of learning or skill required, and properly taxed as costs under R.S. 13:3666. State, Through Dept. of Highways v. Salemi, 249 La. 1078, 193 So.2d 252, 254 (1966). The amount agreed upon between the expert witness and the party calling him is not a criterion as to the amount of expert witness fees to be taxed as costs. Town of Krotz Springs v. Weinstein, 401 So.2d 664, 665, 667 (La.App. 3d Cir.1981). Expert witnesses are entitled only to reasonable compensation for their appearance in court and for preparatory work done, and the fees allowed should be in line with those allowed in similar cases, Id.

(10)

Walbrook claims that it is entitled to reimbursement from National Of the $1,567,951.21 paid by Elmwood to its attorneys. The Court notes that Elmwood sued Ruud alleging causes of action under general tort principles embodied in La.Civ.Code Ann. Art. 2315, (West 1979) and redhibition as defined in La.Civ.Code Ann. Art. 2520 et seq. Elmwood also made a claim for attorney’s fees in accordance with the holding of the Louisiana Supreme Court in Philippe v. Browning Arms Co., 395 So.2d 310 (La. 1981) (on rehearing).

(ID

After reviewing the evidence and the testimony of Mr. McCann, Mr. Landry, Mr. Marks and Mr. McGlinchey, the Court concludes that attorney fees were not a separate item of recovery for Elmwood Plantation. The silence of the July 21, 1983 Judgment is tantamount to a rejection of Elm-wood’s claim for attorney’s fees. See, Succession of Foster, 240 La. 269, 122 So.2d 96 (1960); Palama v. Palama, 338 So.2d 776 (La.App. 4th Cir.1976).

(12)

In Louisiana, attorney fees and expenses of preparing for trial are not taxable as costs and can only be awarded where authorized by statute or contract. See, Parish v. Bill Watson Ford, 354 So.2d 727, 728 (La.App. 4th Cir.1978), writ denied, 356 So.2d 1005 (La.1978). Attorney’s fees are not ordinarily allowable or taxable as “costs” and are not included within the word “costs”. Merrigan v. Metropolitan Life Ins. Co., 43 F.Supp. 209, 211 (E.D.La.1942). Walbrook has not carried its burden of proof and has not proven that National is liable for the payment of Elmwood’s attorney’s fees under the National policy.

(13)

Walbrook also claims that its payment of $3,500,000 included payment of legal interest owed by National. In Louisiana, legal interest attaches from date of judicial demand on all judgments “sounding in damages, ‘ex delicto’, which may be rendered by any of the courts.” La.Rev. Stat.Ann. 13:4203 (West 1968).

(14)

The July 21,1983 judgment provided that interest would accrue “at the rate of 1% per month, or any part of a month, from and after August 21, 1983”. The Court accepts Mr. McCann’s testimony that the judgment was paid in full prior to August 21, 1983 and concludes that no legal interest was assessed against or owed by Ruud.

(15)

Mr. McCann also stated that Elm-wood had no additional claims to assert and had filed a Satisfaction of Judgment in the State Court record. A Satisfaction of Judgment operates as a bar to Elmwood’s right to have the State Court tax costs or assess legal interest. By filing the Satisfaction of Judgment in the state court record, Elmwood judicially confessed that all of its claims as set forth in the July 21, 1983 Judgment had been satisfied. If any of Elmwood’s costs were unpaid by Ruud, Elmwood, by filing the Satisfaction of Judgment, was estopped from asserting any claim of any nature whatsoever against Ruud. See La.Civ.Code Ann. Art. 1953 (West Supp.1985).

(16)

Walbrook’s claims of third party performance and legal subrogation are without merit. Walbrook has proven how the FOUR MILLION FIVE HUNDRED THOUSAND DOLLARS ($4,500,000) was distributed by Elmwood. However, Walbrook has failed to prove that it paid any sum which was rightfully owed by National. After a careful examination of the testimony and evidence presented at trial, the Court concludes that National discharged all of its obligations as the primary insurer of RUUD.

(IV)

Judgment is rendered in favor of National and against Walbrook. Walbrook is to pay all costs of this proceeding.


author: KRAM, District Judge.

text:
    Mary DEAN, et al., for themselves and all others similarly situated, Plaintiffs, v. Thomas A. COUGHLIN III, et al., Defendants.
    No. 84 Civ. 1528 (SWK).
    United States District Court, S.D. New York.
    Dec. 3, 1985.

      William E. Hellerstein, Legal Aid Soc. by William J. Rold, Ellen D. Levine, Claudette R. Spencer, New York City, for plaintiffs.
    Robert Abrams, Atty. Gen. N.Y. by Melvyn R. Leventhal, Deputy First Asst. Atty. Gen., Douglas D. Aronin, Frederic L. Lieberman, Asst. Attys. Gen., for defendants.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Plaintiffs, who represent a class consisting of all persons who are or will be confined at Bedford Hills Correctional Facility (“Bedford Hills”) during the pendency of this ease, bring this action pursuant to 42 U.S.C. § 1983, claiming that the dental care provided at Bedford Hills violates their rights under the Eighth and Fourteenth Amendments to the United States Constitution.

Named as defendants are: Thomas A. Coughlin III, the Commissioner of the New York State Department of Correctional Services, Raymond Broaddus, Assistant Commissioner for Health Services of the New York State Department of Correctional Services; Sydney Pollard, Dental Director of the New York State Department of Correctional Services; Frank Headley, Superintendent of Bedford Hills; Jimmie Harris, Health Administrator of Bedford Hills; and Stefan Sherman, dentist at Bedford Hills. Plaintiffs allege a complete breakdown of dental services at Bedford Hills, characterized by the failure to examine inmates when they arrive and when they request routine care, a long backlog in examining inmates who seek emergency care, and the failure to schedule follow-up appointments ordered by the facility dentist. Plaintiffs allege that as a result of this breakdown, Bedford Hills’ inmates have suffered pain and permanent damage to their health.

This case is presently before the Court on plaintiffs’ motion, pursuant to Rule 65 of the Federal Rules of Civil Procedure, for a preliminary injunction ordering defendants to provide adequate dental care to inmates at Bedford Hills.

FINDINGS OF FACT

1. Background

The Bedford Hills Correctional Facility is the largest state correctional facility for women in New York, housing approximately 570 to 600 inmates. It is also the only maximum security prison for women in New York. It serves as both a permanent correctional facility for some inmates, and a reception center for all women felons in New York State, regardless of where they are eventually to be incarcerated. According to the New York State Department of Correction Services policy guidelines for dental services, the dental clinic at Bed-ford is responsible for giving an intake examination to all new inmates, whether they are to be incarcerated permanently at Bedford Hills or elsewhere, and performing preventive, prophylactic, and other routine dental services for permanent Bedford Hills inmates. The clinic consists of two operatories, which consist of a chair, light, instrument table, and cuspidor. The staff is presently composed of one full-time dentist, two part-time temporary dentists, one dental hygienist, and one clerk.

II. Administration of the Dental Clinic

A. Initial Screening

The first step in the provision of dental care at Bedford Hills is the initial screening exam which is to be performed on all incoming inmates. The exam is performed either by the dental hygenist or the dentist, and consists of taking the patient’s medical history and charting her teeth. The purpose of this exam is threefold: to identify inmates, to identify problems needing attention, and to detect and treat emergency conditions. Both the defendants’ and plaintiffs’ prison dental experts testified that it is good prison dental practice to perform initial exams within fourteen days. Bed-ford Hills’ regulations also call for initial exams within fourteen days.

As Dr. Sherman, the Bedford Hills dentist testified, however, inmates can wait four months or more for an initial screening, and the record is replete with examples of inmates who waited at least four months for initial exams. For example, Mary Jenkins arrived at Bedford Hills in August, 1984 and was not seen until January, 1985, a period of five months, during which she made numerous requests for treatment. Kathy Boudin stated in an affidavit that she arrived at Bedford Hills in May, 1984 and was not seen until December, 1984 and her dental chart confirms this.

The record also establishes that some patients have never received an initial screening examination or any other examination. Clara Karnbach, who arrived in September, 1983, has never been examined, and Dr. Sherman, in his affidavit, indicated he could not locate a chart for her. The Court also finds that Elizabeth Roman, who made numerous requests to see the dentist and whose chart defendants could not locate, also has never been examined by the dentist.»

While some inmates, such as Maureen Ragsdale, who arrived at Bedford Hills on June 21, 1984 and was examined that month, are seen promptly, many are not. The failure to give initial examinations to so many inmates prevents the dental clinic from establishing an orderly and efficient system for delivering dental services to inmates. Without carrying out prompt initial screening examinations on all inmates, the clinic has no way to prioritize the inmates’ dental needs. The dentist does not know which inmates need immediate attention for pain, and which inmates need care that can wait. As defendants’ own expert, Dr. Conte, testified, the initial screening exam should set up the entire classification system for an orderly treatment of dental patients in a prison.

B. Requests for Routine Care

According to the defendants' guidelines, policy memoranda, and testimony, routine dental care includes examinations, fillings, cleaning, extractions, dentures, root canal, and gum treatment. Inmates request routine care by filling out “Request for Dental Appointment” forms, and by returning them to a member of the dental clinic, who places names on waiting lists and schedules appointments. The dental clinic is then supposed to acknowledge receipt of the request and send an appointment daté to the inmate.

The Court finds that the system for providing routine care at Bedford Hills is defunct. Dr. Sherman admitted that he does not use the request forms, which he characterizes as worthless. Della Sutton, the dental hygienist, places the requests in a gauze box, and does not use them. The clinic does not send acknowledgements, make appointments or compile waiting lists. In fact, over three hundred request forms or notes seeking appointments have been filed since January, 1984, and nothing has been done with them. Defendants’ own expert, Dr. Conte, stated that a prison dental clinic’s failure to respond to over 300 requests for routine care would present a problem. The Court agrees. The dental clinic’s failure to answer these routine requests for care both denies inmates treatment and forces them to seek care outside of normal channels.

C. Requests for Emergency Care

Dr. Sherman defines a dental emergency as swollen or infected gums, a broken denture, or pain in the teeth or mouth. The defendants’ guidelines for requesting emergency care, as well as a memo to the inmates, describe Bedford Hills’ system for providing emergency care. Inmates needing emergency care are to sign up on the nurse’s screening list or sick call sign-up sheet, both of which are posted every morning in the housing units. The lists are examined to determine which complaints are real emergencies, and the dental hygienist is then responsible for arranging for the emergency patients to see the dentist. Inmates are informed that they can request emergency care at night and on weekends and are warned not to use the emergency sign-up sheets to make appointments for routine care.

As with the system for requesting routine care, the process for requesting emergency care at Bedford Hills has broken down. Inmates sign the daily sick call sign-up sheets or the nurse’s screening list, but are not seen for months. For example, Helen Richardson signed up for emergency care sixteen times between October, 1984 and March, 1985. She was never called to see the dentist. Shirley White signed up for emergency care on March 20, 1985 and has not been seen by the dentist. Laura Whitmore signed the sick-call sheet on February 25, 1985 but has yet to see the dentist. Mary Jenkins, who lost a tooth from a lower denture, requested emergency care ten times between August, 1984 and January, 1985 before finally seeing the dentist. Hannah Coch requested emergency assistance thirteen times in March, 1985 but has not been seen.

Defendants admit that there are long delays in treating inmates who request emergency care. Dr. Sherman stated that it often takes him three days to see all the patients on one day’s emergency list. At first glance, this might not seem problematic. However, Dr. Sherman stated that as of April, 1985, he was still working on the emergency list from February, 1985. Dr. Conte, the defendants’ expert, stated that in light of this backlog, Bedford Hills does not really have a system for treating patients who need emergency care. The Court agrees.

Defendants, while admitting that there are long delays in providing treatment to inmates who request emergency care, assert that most patients who request emergency care are not emergencies at all, but use the nurse’s screening and sick call sheets as a means of requesting routine care. To support this contention, defendants state that while many inmates sign up for emergency care during weekday mornings, few sign up at night or on weekends. Defendants also claim that inmates abuse the emergency sign-up process, and point to inmates such as Miriam Acevedo who testified that she signs up for emergency care even when she is not in pain. Thus, defendants essentially state that they use the emergency request list as a means of providing routine care because patients on the emergency list need only routine care. However, since the clinic has not even seen many of the patients on the list, it has no way of knowing which inmates warrant emergency treatment.

Defendants’ attempt to blame the inmates for the backlog in emergency care is also misplaced. Lacking screening exams and responses to routine care requests, inmates understandably realize that the only way to receive dental treatment is to request emergency care, whether they need it or not. The backlog in emergency care is thus the result of the breakdown in initial screening and routine care procedures.

D. Follow-up Appointments

The record also indicates that the dental clinic is lax in scheduling and keeping follow-up appointments ordered by the dentist. For example, Miriam Acevedo’s dental chart indicates that during the course of treatment for a cap on her tooth, the dentist ordered four follow-up visits, none of which were kept on time, and for one of which Acevedo waited one year. During this time, the record indicates Acevedo made numerous requests for dental care, including personal visits to the dentist, but was not seen for treatment. Karen White, who was treated for sinitis, was scheduled for follow-up care within one to two days, but was seen nine days later. Her dental chart indicates she was in pain throughout that period. Ruth Kitchens was treated for a broken tooth on April 18, 1984; the dentist ordered another visit in one week, but did not see her for eight months. She testified that she was in pain while waiting to see the dentist. Dr. Sherman, while testifying that the follow-up care system was working properly at Bedford Hills, admitted that there was no record that he saw inmates Sondra Halpin, Estella Coronado, Miriam Acevedo, Lydia Cerillo, and Debra Buford, among others, within the time ordered for follow-up care.

The record indicates there are occasions when patients see the dentist for a followup visit within the time ordered. Helen Richardson, for example, testified on cross-examination that she saw Dr. Sherman for a check-up three days after a tooth was removed. But such examples do not mitigate the damage and pain caused by the series of failures to provide follow-up care. Nor do they indicate that the system of follow-up care is working properly at Bed-ford Hills.

E. Summary

The above findings demonstrate a total breakdown in the administration of the dental clinic at Bedford Hills. The failure to perform initial exams, the collapse of the system for requesting routine care, the backlog in emergency requests, and the failure to keep follow-up appointments all create a labyrinth in which inmates at Bed-ford Hills, facing sundry obstacles, use various means to see the dentist in the hope that although many of their attempts will fail, they will eventually obtain treatment. Besides signing up for routine and emergency care, inmates are forced to go outside the regular prisoner process to get treatment. They request the help of prison health administrator, Jimmie Harris, accost Dr. Sherman in the hallway, write letters to both, and visit the clinic without appointments. Some inmates negotiate their way to treatment, but in no apparent relation to their needs.

Defendants attempt to use these examples to demonstrate that the dental chair is accessible and that inmates are being treated. But under such an anarchical system, many inmates—be they quiet or even unlucky—have suffered while awaiting the treatment that could relieve them, while others who do not need immediate treatment have been seen. Maureen Ragsdale, Clara Karnbach, Laura Whitmore, Dawn Boykin, and Mary Jenkins all testified that they were in pain while waiting months for requested treatment.

III. Provision of Dental Services

The dental services offered by the clinic at Bedford Hills can be divided into four categories: prophylactic care, restorative care, extractions, and prosthetics services. The evidence demonstrates that the collapse in the administration of the Bedford Hills dental clinic has caused a breakdown in the provision of dental services.

A. Prophylactic Care

Prophylactic treatment for teeth is a special cleaning which only a dentist is able to provide. Plaintiffs’ expert, Dr. Villacara, stated that wise dental policy calls for prophylactic treatment once every six months. Failure to provide timely and consistent care can lead to inflamed and bleeding gums, periodontal disease, and loose or lost teeth. Such disease would not begin to develop, according to Dr. Villacara, until at least a year after the last treatment. Thus, as defendants’ expert Dr. Conte testified, prophylaxis is not a priority treatment, but it is important. The record indicates that Bedford Hills generally does not provide regular prophylactic care to the inmates.

Helen Richardson has not had her teeth cleaned since her arrival at Bedford Hills in March, 1984. Her dental records indicate that the clinic ordered a cleaning in July, 1984. Miriam Acevedo has not had her teeth cleaned in three years. Virginia Maddox has not had prophylactic treatment in her four years at Bedford Hills. Dawn Boykin has not received a cleaning since her arrival at Bedford Hills in May, 1983, even though the dentist noted on her record that she needed one in July, 1984. The evidence thus indicates that Bedford Hills rarely provides prophylactic care to inmates.

B. Restorative Care

Restorative services generally include filling cavities, doing root canal work, and crowning broken teeth. Failure to perform restorative work when needed can result in pain and the loss of teeth. The record indicates that there are often unacceptably long delays in the provision of restorative service at Bedford Hills.

Maureen Ragsdale was diagnosed as possibly needing crowns on July 5, 1984. On November 11, 1984 she visited the dentist because the teeth needing crowns had fractured. The dentist did not begin to insert the crowns until February 20, 1985, nearly seven months after the need for crowns was first identified, and three months after her tooth had cracked. Ragsdale testified that during the time she waited for treatment she was suffering from pain and throbbing in her teeth, and headaches.

According to Dr. Villacara, plaintiffs’ expert, if the crowns had been inserted immediately in July, the tooth would not have fractured. Dr. Sherman stated in an affidavit that the need to perform the services was not diagnosed as definite until November and that the patient would have been helped on January 17, but she did not show up at the clinic. Even accepting both of Dr. Sherman’s assertions as true, Ragsdale still waited in pain for two months for treatment diagnosed by Dr. Sherman himself as necessary. Clara Karnbach testified that while incarcerated she had cavities needing fillings and that her wisdom teeth often caused her pain. As the Court found earlier, Clara Karnbach has never seen a dentist at Bedford Hills, despite many requests for appointments.

Many other patients have been diagnosed as having cavities but have not received fillings. Linda Green has waited eight months, Luba Mack has waited ten months, and Estella Coronado has waited one year and four months for fillings. These are but a few examples from the record.

Inmate Dawn Boykin was having problems with her upper right middle tooth when she saw the dentist on August 30, 1983. The clinic took x-rays of her tooth three times because it lost them twice. She finally was diagnosed as having a cavity, and it was filled in December, 1983, but the tooth had to be pulled in May, 1984. The witness testified that throughout this period, including the time after the tooth was pulled, she was in pain. She also unsuccessfully sought dental attention numerous times.

In July, 1984 Boykin was diagnosed as needing a crown on one tooth and suffering from a deep carious lesion and mesial decay on two others. She testified that her teeth hurt so much she often cried. Plaintiffs’ expert testified that failure to treat a deep carious lesion could result in further decay and eventual loss of the tooth. Despite making thirteen requests to see the dentist, she was not treated until December 7, 1984, a period of nearly five months. She did see the hygienist on September 5, but received no treatment. When she saw the dentist for treatment on December 7, she claimed that while Dr. Sherman was examining her, he became too familiar with her, and Dr. Sherman suggested that she come back for treatment another time.

The Court finds that Dr. Sherman was only attempting to examine Boykin when she claimed he became too familiar with her. So the failure to treat Dawn Boykin on December 7 was due to an unfortunate misunderstanding between doctor and patient. However, this incident in no way justifies the five months Boykin waited for treatment between July and December.

C. Extractions

Shirley White’s dental record indicates that on September 4, 1984, she needed three teeth extracted. One of these teeth was apparently on her sinus line, and she was in pain. Dr. Sherman indicated on her chart that she was to be seen in approximately seven days. Two months later she was transferred to Albion State Prison without having been seen and thus without having the teeth pulled. She returned to Bedford Hills a year later in November, 1984 and has still not seen the dentist, despite two requests. There is no record that the teeth were ever pulled. Currently, she is suffering from sore gums and cannot eat meat.

Karen Jamison’s dental chart indicates Dr. Sherman diagnosed her as needing two teeth extracted on July 19, 1984. One tooth was filled seven months later, the other has never been filled according to her chart, although Dr. Sherman states in an affidavit that it was filled on April 23,1985. Even assuming his statement is true, she waited nine months for all fillings to be completed. Among the many other inmates who have waited months for extractions are Marie Smily and Rosaura Gonzalez, who are still waiting for extractions after waiting ten and five months, respectively.

The Court finds, based on the expert testimony adduced at trial, that failure to perform needed extraction within a reasonable time can result in unrelieved pain and, if the delay is long enough, infection and damage to the roots and jawbone. Dr. Sherman claimed in his testimony that only one percent of patients needing extractions ever suffer from infection. Even if the Court accepts this as true, the fact that so few people suffer infection is no excuse for long delays in performing needed extractions. Furthermore, even if a patient needing an extraction does not develop an infection, she would almost always be in pain.

D. Prosthetic Services

Prosthetic services encompass replacing teeth that are missing. There are two basic sorts of prosthetic devices—fixed and removable. Fixed prosthetic devices are commonly known as bridges and removable prosthetics are known as dentures. Dr. Villacara and Dr. Conte agreed that a person in need of dentures would have difficulty chewing food, which would in turn lead to digestion problems. Dr. Villacara also stated that the facial distortion resulting from missing teeth could lead to psychological problems. Dr. Conte stated the provision of dentures is the second dental priority in the New Jersey State Prison System, and that it should take from one to six months for a denture case to be completed. The record indicates that, as with other dental services at Bedford Hills, the provision of prosthetics is severely lacking.

Ruth Kitchens’ dental chart indicates that she needed partial upper and partial lower dentures as of April 18, 1984. She testified that the hygienist recognized her need for dentures during a visit in December 1983, but the first time a dentist entered such a diagnosis on her chart was in April, 1984. She finally received a transitional denture in April, 1985, after a year’s delay. ■

Mary Jenkins has full upper and lower dentures. In August, 1984 she lost a tooth from her lower denture. When she eats, particles of food go straight through the hole left in the denture and irritate her gums. As a result, she cannot eat properly. She had made numerous requests for a dental appointment, but was not seen until January 22, 1985. At that visit, Dr. Sherman asked Jenkins to leave the dentures for repair, but the dental chart and Dr. Sherman’s affidavit indicate that she refused to leave them. Jenkins testified that she refused because Dr. Sherman claimed the repairs would not work and that she needed new dentures anyway. The Court finds that her refusal to leave the denture for repair was reasonable because if she had, she would not have had any lower teeth.

Inmate Penny Rose’s need for full dentures was identified on October 29, 1983. All of her teeth were extracted by December, 1983. Dr. Sherman testified that she then should have waited six to eight weeks before impressions for dentures were taken in order to let her mouth recover. The impressions were not taken until July, 1984, a full seven months later, and she did not receive the dentures until March, 1985, eight months after the impressions were taken and fifteen months after she was first diagnosed as needing dentures. During the time she was without teeth, the record indicates she lost fifteen pounds and was placed on Sustacal, a food supplement. Dr. Sherman asserts that the delay in taking the impressions was due to recurring cold sores. But no cold sores were indicated on her record between December, 1983 and June, 1984, and in fact she did not even see the dentist during this time. Cold sores should not cause a seven month delay. Cold sores were noted on Rose’s chart on June 26, 1984, and she received impressions less than a month later. Thus, if the clinic acted immediately after a case of cold sores was over, it could have taken the impressions sooner. Even if the Court accepts Dr. Sherman’s assertions that cold sores prevented impressions from being taken, this does not explain the eight month gap between the taking of the impressions and the insertion of the dentures.

The record indicates that these are not isolated incidents, but are part of a pattern of delay in the provision of prosthetic care at Bedford Hills. For example, Peggy Southerland waited one year for full upper and lower dentures, Kathleen Riley has waited fourteen months for partial upper and lower dentures that have yet to appear, and Lydia Cirillo has waited eighteen months.

IV. Efforts to Improve the Quality of Care at Bedford Hills

The defendants admitted during the hearings that the provision of dental care at Bedford Hills has not been sufficient, but they claim they have tried to and have, in fact, improved the care at Bedford Hills. The record shows that defendants have made a number of requests to the State for additional staffing at Bedford Hills. In September, 1982, Health Services Administrator Jimmie Harris wrote a memo to the Regional Director seeking permission to hire a dental assistant at Bedford Hills. Dr. Broaddus wrote memos in support of this request in October and November, 1982. In February and March, 1984, Harris sought a temporary dentist for Bedford to help clear up the backlog that developed under Dr. Collings. A temporary, halftime dentist was approved by the state in November, 1984.

The State has also provided Bedford Hills with a mobile health service unit which includes an additional half-time dentist. The dental assistant request has not been approved by the State, but the clinic has added a clerk to help with record-keeping. Defendants also have plans to improve and expand the physical facilities at the dental clinic. The plans call for expanding the clinic so that it will contain four operatories. Physical construction for the operatories has not yet begun. The Court notes that all the improvements have been implemented after the institution of this lawsuit. Furthermore, these efforts have not resulted in improvement of the provision of dental services at Bedford Hills.

CONCLUSIONS OF LAW

In order to obtain a preliminary injunction in this Circuit a party must demonstrate:

(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.

Jack Kahn Music Co. v. Baldwin Piano and Organ Co., 604 F.2d 755, 758 (2d Cir.1979).

When a party is seeking a mandatory preliminary injunction, as plaintiffs do here, the standard for the second prong of the test is even higher. Jacobson and Co., Inc. v. Armstrong Cork Co., 548 F.2d 438, 441 (2d Cir.1977). The moving party must make a clear showing that it is entitled to the relief it requests or that extreme and serious damage would result from a denial of preliminary relief. Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.1985). And when, as here, the preliminary injunction will grant the moving party substantially all the relief it ultimately seeks, the party must fulfill an even more stringent standard. It must show a substantial likelihood of success on the merits. Wali, 754 F.2d at 1026.

I. Substantial Likelihood of Success on the Merits

A federal district court faces the prospect of enjoining prison officials to provide certain services to inmates with some trepidation. This Court recognizes that it is not an expert in prison administration and is not in command of all the resources necessary to resolve prison problems. See Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). The Court thus must give due deference to the judgment prison officials have exercised in establishing prison procedures. The Court must not simply implement its own idea of the ideal way to run a prison. See Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979).

The Court recognizes also, however, that it is required to act if it finds that the federal constitutional rights of the Bedford Hills inmates have been violated. When dental or medical needs are involved, an inmate is completely reliant on the state and prison for care. When the care is not forthcoming, a court is often the only place an inmate can turn for help. With this tension between individuals’ rights and the limited role a court plays in prison reform in mind, the Court turns to the merits.

A. The Eighth Amendment Standard

The Eighth Amendment to the Constitution of the United States requires a state to provide medical care to those whom it punishes by incarceration. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh. den., 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977). A state’s obligations applies to dental care as well. Chapman v. Rhodes, 434 F.Supp. 1007, 1020 (S.D.Ohio 1977), aff'd, 624 F.2d 1099 (6th Cir.1980), rev. in other part, 452 U.S. 387, 344, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (1981); Barnes v. Virgin Islands, 415 F.Supp. 1218, 1235 (D.V.I.1976). In numerous other cases, courts have applied the Eighth Amendment to dental care at prisons. See, e.g., Fields v. Gander, 734 F.2d 1313, 1314 (8th Cir.1984); Robbins v. South, 595 F.Supp. 785, 788 (D.Mont.1984); Shaffer v. McWilliams, 570 F.Supp. 1422 (W.D.N.Y.1983); Clifton v. Robinson, 500 F.Supp. 30, 35 (E.D.Pa.1980); Nicholson v. Choctaw County, 498 F.Supp. 295, 297 (S.D.Ala.1980); Stokes v. Hurdle, 393 F.Supp. 757, 761 (D.Md.1975), aff'd, 535 F.2d 1250 (4th Cir.1976).

A state is not required to fulfill all of the dental or medical needs of its prisoners. Rather, it must not be deliberately indifferent to the “serious medical needs of the prisoners____” Estelle, 429 U.S. at 104, 97 S.Ct. at 291. The two relevant questions under the Eighth Amendment are thus what constitutes deliberate difference and what is a serious medical or dental need. See Harding v. Kuhlmann, 588 F.Supp. 1315, 1316 (S.D.N.Y.1984) (to make a claim under the Eighth Amendment, plaintiff must show allegations of serious medical needs and deliberate indifference on the part of the prison officials to those needs) (Weinfeld, J.), aff'd, 762 F.2d 990 (2d Cir.1985).

In Estelle, the Court ruled that deliberate indifference can be manifested by a doctor’s refusal to administer needed treatment, a prison guard’s intentional denial or delay in granting an inmate access to medical care, or his intentional interference with prescribed treatment. Estelle, 429 U.S. at 104-05, 97 S.Ct. at 291-92. The Second Circuit has articulated its interpretation of Estelle’s deliberate indifference standard. In Todaro v. Ward, 431 F.Supp. 1129 (S.D.N.Y.1977), aff'd, 565 F.2d 48 (2d Cir.1977), Judge Ward ruled that there are two categories of deliberate indifference: denied or unreasonably delayed access to a physician for diagnosis and treatment and failure to administer treatment prescribed by a physician. Todaro, 431 F.Supp. at 1132-33. In affirming, the Second Circuit stated that repeated examples of delayed or denied medical treatment bespeaks deliberate indifference by prison officials to the medical needs of the inmates. Todaro, 565 F.2d at 52. However, claims of medical malpractice or negligence on the part of the prison doctor, Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir.1972), disagreement with the doctor’s professional judgment about proper treatment, Hyde v. McGinnis, 429 F.2d 864, 866-67 (2d Cir.1970), and accidents, Estelle, 429 U.S. at 105, 97 S.Ct. at 291, do not rise to the level of deliberate indifference.

Turning to the second prong of the Eighth Amendment standard, a prisoner must show that the medical needs to which prison officials were deliberately indifferent were serious. In Todaro, Judge Ward ruled that a serious medical need can be one which “although not life threatening or likely to result in permanent disability, cause[s] discomfort.” 431 F.Supp. at 1132-33. In affirming, the Second Circuit found that medical conditions which cause or perpetuate pain constitute serious medical needs. Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.1977).

Finally, since plaintiffs challenge as unconstitutional the system for the delivery of dental services at Bedford Hills and not merely the dental care provided to one inmate, they must prove “a pattern of conduct amounting to deliberate indifference to [dental] needs of prisoners.” Bishop v. Stoneman, 508 F.2d 1224, 1226 (2d Cir.1974). They may prove such a pattern by demonstrating a series of incidents of deliberate indifference closely related in time to one another. Id. In Todaro v. Ward, the Second Circuit spoke of “repeated examples” of inadequate medical treatment as bespeaking systemwide deliberate indifference. 565 F.2d 48, 52 (2d Cir.1977).

Thus, to demonstrate a substantial likelihood of success on their claim that the provision of dental services at Bedford Hills is unconstitutional, plaintiffs must make a strong showing that defendants denied inmates access to the dentist for diagnosis and treatment or failed to provide prescribed treatment, resulting in pain, discomfort, or damage to the health of prison inmates. They also must show that incidents of failure to care for serious needs were not isolated events, but were part of a pattern of inadequate dental care.

B. Eighth Amendment Standard Applied to Bedford Hills

1. Deliberate Indifference

The evidence adduced at the hearing satisfies the Court that there is a substantial likelihood that plaintiffs will succeed in showing that defendants are deliberately indifferent to inmates’ dental needs. Plaintiffs proved many incidents of delay in or denial of access to the dentist as well as numerous occasions in which prescribed treatment was not given. Two inmates, for example, have never seen the dentist, although they have often requested treatment. Numerous inmates have waited a year or more for their requests to see the dentist fulfilled. And still others have been diagnosed but have waited six months or more for treatment. Each of these delays represents an instance of deliberate indifference to inmates’ dental needs.

The defendants argue that although they knew about the inmates’ dental needs, they are not deliberately indifferent to them because they do provide treatment to inmates, they have made and are making efforts to improve care at Bedford Hills, and they currently plan to expand the dental facilities at Bedford Hills. In essence, they argue that their good faith in dealing with the provision of dental care at Bed-ford Hills precludes a finding of deliberate indifference. The relevant case law does not support defendants’ position. Deliberate indifference can be proved by showing a prison official’s mental state. But deliberate indifference is also a standard for measuring the adequacy of prison officials’ responses to the known medical needs of inmates and their system for allowing inmates to make their needs known. While intentional or reckless denial of treatment may constitute deliberate indifference, denial of treatment regardless of mental state can also constitute deliberate indifference. When prison officials are aware of inmates’ dental needs they must not deny— intentionally or otherwise—care to them. This is established in the various formulations of the' delíbrate indifference standard. Judge Weinfeld, for example, stated that deliberate indifference can be shown by intentional efforts to delay access to treatment, complete denial of treatment, or reckless or callous indifference to the safety of prisoners. Harding v. Kuhlmann, 588 F.Supp. 1315, 1316 (S.D.N.Y.1984), aff'd, 762 F.2d 990 (2d Cir.1985). Judge Ward, in summarizing the law of deliberate indifference, stated “to prove a____claim of unconstitutional denial of medical care it is necessary to show either denied or unreasonably delayed access to a physician for diagnosis or treatment of a discomfort causing ailment, or failure to provide prescribed treatment.” Todaro v. Ward, 431 F.Supp. 1129, 1133 (S.D.N.Y.1977), aff'd, 565 F.2d 48 (2d Cir.1977).

The defendants next argue that the delays in providing care are not unconstitutional. They rely on Chapman v. Rhodes, 434 F.Supp. 1007 (S.D.Ohio 1977), aff'd, 624 F.2d 1099 (6th Cir.1980), rev., 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), in which the lower court found that substantial backlogs in the provision of dental services—including delays in pulling teeth, providing dentures, and filling cavities—developed before a full-time dentist was hired and one year later after he left. The court stated that the delays were intolerable, but found that they were only temporary, and the evidence before the court showed all dental needs were then being met. The court never actually ruled on the constitutionality of dental services because it was not relevant to the ultimate issue in the case—the constitutionality of double celling.

The Supreme Court, which only dealt with the constitutionality of double celling, mentioned that while a turnover in dental staff had caused a temporary but substantial backlog, the evidence showed that the dental staff was treating emergencies. Chapman, 452 U.S. at 342, n. 6, 101 S.Ct. at 2397 n. 6. The evidence indicates that the dental staff at Bedford Hills does not treat emergencies and that the backlog is not temporary. Moreover, Chapman does not stand for the proposition that substantial delays in the provision of dental care are not unconstitutional. Furthermore, the consideration of dental care was dicta in both the district court and the Supreme Court, as the real issue was double celling. And if any guidelines emerge from Chapman, they are that temporary delays are not unconstitutional, as long as a dental clinic is presently providing dental care, and that a prison should not be subject to injunctive relief for past problems in the provision of dental services.

In the present case, although the backlogs developed near the end of Dr. Collings’ tenure and became greater in the gap between Dr. Codings’ exodus and Dr. Sherman’s arrival, the backlogs at Bedford Hills continue and have grown. Dr. Sherman admitted that he is three months behind in treating requests for emergency treatment, and as the record indicates, patients who signed up for treatment with Dr. Sherman are still waiting to see him for diagnosis or treatment.

Defendants attempt to rely on other cases that deal directly with delays in the provision of dental services. In Robbins v. South, 595 F.Supp. 785 (D.Mont.1984), plaintiff alleged that prison officials ignored plaintiff’s written requests for treatment for his infected gums and missing upper dental plate for three months before treating him. Finding no allegations that the treatment was intentionally delayed, the court ruled that a three month delay in the provision of treatment does not rise to the level of a constitutional violation.

This, however is not the law in this Circuit, which requires a finding of deliberate indifference if an inmate who has made his needs known to prison officials waits for three months, with a serious dental need and in pain, for dental treatment. In Williams v. Scully, 552 F.Supp. 431 (S.D.N.Y.1982), for example, the court found that plaintiff stated a claim for relief by claiming that he lost a filling in one of his teeth, waited over five months for the tooth to be refilled, suffered through a painful infection that developed in the tooth, and eventually lost it. Id. at 432. Robbins is also distinguished from the instant case, as three months at Bedford Hills is actually a relatively short waiting period. Indeed, inmates at Bedford Hills often wait for over a year before seeing a dentist, and even longer before receiving treatment.

The defendants also claim that because many patients eventually see the dentist and eventually receive treatment, there is no deliberate indifference. A number of courts have found that visits to the doctor preclude a finding of deliberate indifference. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), where plaintiff claimed that the prison officials violated his Eighth Amendment right to medical attention, the Supreme Court held that plaintiff failed to state a claim of deliberate indifference since he was seen by the doctor seventeen times in three months and was diagnosed and treated during that time. The plaintiff’s disagreement was only with the type of treatment given. Id. at 107, 97 S.Ct. at 292.

Similarly, in Shaffer v. McWilliams, 570 F.Supp. 1422 (W.D.N.Y.1983), plaintiff had two teeth extracted and sued the prison dentist because he refused to prescribe a painkiller stronger than liquid Tylenol. The plaintiff was seen for treatment of her pain eight times in three days. The court, while stating that medical attention of that frequency is not consistent with a finding of deliberate indifference, also held that the case only involved a prisoner’s disagreement with her doctor’s treatment, and such a disagreement did not constitute a constitutional violation. In both Shaffer and Williams, the courts indicated that patients visited the dentist and actually received treatment. Even if prison officials give inmates access to treatment, they may still be deliberately indifferent to inmates’ needs if they fail to provide prescribed treatment. Todaro v. Ward, 431 F.Supp. at 1132-33. The record indicates that even when inmates have access to the dentist at Bedford Hills they often do not receive treatment.

2. Serious Dental Needs

The Court finds that the plaintiffs have demonstrated a substantial likelihood of success on their claim that the dental needs to which the defendants are deliberately indifferent are serious, except insofar as they relate to prophylactic care. The record indicates that inmates do not suffer pain as a direct result of failure to provide prophylactic care and that failure to give prophylactic care to teeth will rarely lead to serious problems, although periodontal disease might develop. This conclusion is contrary to Barnes v. Virgin Islands, 415 F.Supp. 1218 (D.V.I.1976), where the Court stated that prisoners are entitled to curative and preventive dental work. Id. at 1235. But a prisoner is entitled to treatment only for conditions that cause pain, discomfort, or threat to good health, not treatment to ward off such conditions. Although preventive dentistry would probably save the clinic time in the long run, the Constitution does not require wise dentistry, only dentistry which responds to inmates’ pain and discomfort.

Inmates’ other dental needs—for fillings, crowns, and the like—are serious medical needs as the law defines that term. Inmates needing these services testified that they suffered from pain and discomfort. In addition to pain, many inmates suffered' serious health consequences as a result of the defendants’ failure to treat them. One inmate, for example, lost a tooth that could have been saved with prompt attention, and another lost fifteen pounds while awaiting dentures. The record indicates that while inmates with serious medical needs often requested treatment they did not receive it.

3. Institutional Violation

Finally, the Court finds that there is a substantial likelihood that deliberate indifference to inmates’ serious dental needs at Bedford Hills is systemwide. In Bishop v. Stoneman, 508 F.2d 1224 (2d Cir.1974), the Court found that six incidents of delay or denial of medical treatment was sufficient to state a claim for systemwide relief. Id. 1225-26. Plaintiffs here have shown many more than six instances of inadequate care. And more importantly, they have demonstrated that the cases of inadequate care are directly linked to defendants’ policy of ignoring inmates’ requests for routine care, waiting for months before responding to requests for emergency care, and rarely keeping follow-up appointments. Their failure to respond to requests for emergency treatment and routine care, and to perform follow-up appointments denies the defendants access to the dentist for treatment and diagnosis, and thus constitutes deliberate indifference on an institutional scale.

However, the defendants’ failure to do prompt initial examinations does not, in and of itself, rise to the level of a constitutional violation. The Eighth Amendment does not entitle inmates to an initial screening. The deliberate indifference standard does not require prison officials to seek out patients for treatment. The prison must provide inmates with a procedure for making their needs known and must provide services to inmates who need them, but the burden is on the prisoner to make the needs known. For example, in Church v. Hegstrom, 416 F.2d 449 (2d Cir.1969), the court stated that a complaint which alleged only that a prison attendant observed that the plaintiff looked ill, but did not allege that the defendants knew he was ill or that he required treatment, did not state a violation. Although this case was decided before Estelle, more recent formulations of the deliberate indifference standard indicate that prison officials cannot be liable unless they knew of an inmate’s medical needs or had some reason to believe they might be serious. See Harding v. Kuhlmann, 588 F.Supp. 1315 (S.D.N.Y.1984) (deliberate indifference can be shown by intentional efforts to delay access, compíete denial of treatment, or reckless or callous indifference to the safety of the prisoner); Williams v. Director of Health Services, 542 F.Supp. 883 (S.D.N.Y.1982) (deliberate and callous disregard for inmate’s request for treatment). Although the failure to conduct prompt initial screening examinations may be inefficient prison administration, it is not unconstitutional. See Chapman v. Rhodes, 434 F.Supp. 1007, 1016 (S.D.Ohio 1977), aff'd, 624 F.2d 1099 (6th Cir.1980), rev. in other part, 452 U.S. 337, 344, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (1981) (failure of dental clinic to formulate individual treatment plans for dental patients is not unconstitutional).

II. Irreparable Harm

A party seeking a preliminary injunction must also show irreparable harm. Plaintiffs in this case have made such a showing. Inmates at Bedford Hills are suffering from pain, loss of teeth, discomfort, weight loss, and infection. All are forms of irreparable harm. See Lee v. McManus, 543 F.Supp. 386, 392 (D.Kan.1982) (pain, anxiety, discomfort, and life-threatening complications are the type of irreparable harm which can justify a preliminary injunction). The defendant’s remedial efforts have not defeated or remedied the irreparable harm.

REMEDY

Based on the above findings of fact and conclusions of law, the Court must issue a preliminary injunction ordering the defendants to provide adequate dental care to inmates with serious dental needs. Specifically, the defendants are hereby ORDERED to provide a dental access system that assures prompt diagnosis and treatment for inmates with serious dental needs, provide a system that assures that followup care is provided as ordered and without delay, and take prompt steps to eliminate expeditiously the current backlogs in treatment. Defendants are furthermore ORDERED to take all steps necessary to comply with the terms of this order.

The Court will not now be more specific regarding the terms of the injunction. It expects the defendant and plaintiffs to work out terms for compliance with the injunction in the first instance.

SO ORDERED.

      . In the original complaint, Thomas Collings was named as a defendant in his capacity as dentist at Bedford Hills. Dr. Collings has since left Bedford Hills, and his replacement, Dr. Sherman, has been substituted as a defendant. Dr. Sherman testified extensively at the hearings. The Court finds, based on its direct observation of the witness and consideration of all the other evidence adduced at the hearing, that Dr. Sherman was for the most part not credible and his answers were generally evasive and incomplete.

      . There was some dispute as to the effect of these guidelines. Defense witnesses maintained that they set forth goals and aspirations for prison dental facilities, while plaintiffs often used them as a standard against which to measure defendants' performance. Without attempting to resolve that conflict, the Court notes that it is referring to the guidelines for descriptive purposes only, and not as a means for judging the adequacy of care at Bedford Hills. The Eighth Amendment, and not these guidelines, is the Court’s sole standard.

      . Gonzalez was transferred to Albion Correctional Facility in December, 1984. This does not mitigate the failure to treat her in the five months between the diagnosis and transfer.