# United States v. Com. of Pennsylvania

> District Court, W.D. Pennsylvania · July 27, 1995 · 902 F. Supp. 565

URL: https://www.frixlaw.com/law-library/cases/2597226

## Case

- **Full name:** UNITED STATES of America, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, Robert Casey, Governor of the Commonwealth of Pennsylvania, Karen F. Snyder, Acting Secretary Department of Public Welfare, Steven M. Eidelman, Deputy Secretary of Mental Retardation Office of Mental Retardation, Alan M. Bellomo, Director Ebensburg Center, Defendants
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** July 27, 1995
- **Citations:** 902 F. Supp. 565; 1995 U.S. Dist. LEXIS 11861
- **Precedential status:** Published
- **Opinion:** Opinion by Smith
- **Judges:** D. Brooks Smith
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2597226

## How later opinions describe it (automated extraction)

- noting that § 1997a(a) contains the elements for the Attorney General’s reasonable cause determination

## Opinion text

TABLE OF CONTENTS
Page
I. Introduction.577
II. Standard Of Proof.578
A. CRIPA Actions.578
B. Substantive Due Process Rights of Institutionalized Mentally Retarded Persons.580
C. The Professional Judgment Standard.582
III. Findings of Fact and Conclusions Regarding Liberty Interests at Issue in this Litigation.584
A. The Center’s Structure and Services.584
B. Adequate Basic Care.588
C. Adequate Medical Care.591
1. Neurological Care.591
*577
2. Psychiatric Care. 00 05
a. Psychiatric Assessment Techniques cn
<£>
b. Differential Diagnosis. 05 O
c. Psychiatric Treatment. as O
3. Gastroesophageal Reflux and Aspiration o
4. Nutritional Management. H tH C£)
a. Screening. H i — i
b. Assessment. (M i — l ^
c. Intervention . TP tH d
d. Monitoring. ^ i — l ^
e. Training. LO i — l O
5. Physical Therapy . <© rH
a. Assessment.
b. Wheelchairs. (M
c. Transfers. ^ Cx|
6. General Medical Care.626
7. General Nursing Care.628
D. Adequate Training and Freedom From Undue Restraint.631
E. Reasonable Safety and Protection From Harm.640
IV. CONCLUSION.649
OPINION AND ORDER
D. BROOKS SMITH, District Judge.
I.
INTRODUCTION
This action presents a claim by the Attorney General, on behalf of the United States of America (“United States”), under the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. §§ 1997 -1997j (“CRIPA”). The United States contends that the Commonwealth of Pennsylvania (“Commonwealth”) and the individually-named defendants (officers of the Executive Branch of the Commonwealth sued in their official capacities) are depriving institutionalized mentally retarded persons at the Ebensburg Center (the “Center”) of rights, privileges or immunities secured by the Constitution of the United States. Complaint (Docket No. 1), ¶¶ 1, 6-11. The United States seeks equitable relief, the sole remedy authorized by CRIPA
(see
42 U.S.C. § 1997a(a)), and asks this Court to enjoin defendants from “continuing the acts, practices and omissions” at the Center which allegedly violate the Constitution, and “to require defendants to take such action as will provide constitutional conditions of care to persons” who reside at the Center. Complaint, p. 5.
The instant CRIPA action was tried before this Court over the course of twenty (20) days. Extensive testimony by lay and expert witnesses was presented, hundreds of exhibits were received into evidence, and this Court conducted a detailed view of the facility in the presence of counsel.
Inasmuch as “[djecisional law interpreting [CRIPA] is virtually nonexistent”
(United States v. Pennsylvania,
863 F.Supp. 217, 218 (E.D.Pa.1994)), and in order to properly evaluate the evidence presented, I will first address the applicable standard of proof. Thereafter, for each alleged constitutional violation, I will discuss the nature of the duty owed, my findings of fact regarding the alleged violative conduct, and my conclusion regarding whether a violation exists.
For the reasons explained below, I find that the residents at the Ebensburg Center are not being deprived of their rights, privileges, or immunities secured or protected by
*578
the Constitution or laws of the United States. Accordingly, the United States’ request for injunctive relief shall be denied.
II.
STANDARD OF PROOF
A.
CRIPA Actions
The Commonwealth submits that the standard of proof in this CRIPA action requires the United States to satisfy five elements set forth in 42 U.S.C. § 1997a. According to the Commonwealth, the United States must demonstrate:
1. egregious and flagrant conditions in a State institution resulting in;
2. a deprivation of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States;
3. said deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges or immunities; and
4. said deprivation causes;
5. grievous harm to persons residing in an institution.
See
Docket No. 22, pp. 34-35.
1
The United States argues that the Commonwealth’s extrapolation of these elements from 42 U.S.C. § 1997a is in error because that statute merely establishes the elements of the “Attorney General’s ‘reasonable cause’ determination that conditions at the institution in question merit Department of Justice involvement.” 30/3-4.
None of CRIPA’s provisions specifically address the elements which must be demonstrated by the United States at trial in order to obtain the equitable relief sought.
See
42 U.S.C. §§ 1997—1997j. Section 1997a is entitled “Initiation of civil actions,” and subsection (a)’s caption reads: “Discretionary authority of Attorney General; preconditions.” 42 U.S.C. § 1997a. Subsection (a) provides:
Whenever the Attorney General has reasonable cause to believe that any State ... is subjecting persons residing in or confined to an institution, as defined in section 1997 of this title, to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm, and that such deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities,
the Attorney General,
for or in the name of the United States,
may institute a civil action
in any appropriate United States district court against such party for such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of such rights, privileges, or immunities ...
42 U.S.C. § 1997a(a) (emphasis added).
The plain language of § 1997a(a) reveals that the statute simply confers standing upon the Attorney General, thereby providing authority for the United States to initiate a lawsuit on behalf of mentally retarded persons, and others, who reside or are confined in an institution.
See Patsy v. Florida Bd. of Regents,
457 U.S. 496, 507-08 , 102 S.Ct. 2557, 2563 , 73 L.Ed.2d 172 (1982) (“The Civil Rights of Institutionalized Persons Act ... was enacted primarily to ensure that the United States Attorney General has ‘legal standing to enforce existing constitutional and Federal statutory rights of institutionalized persons.’ ” (quoting H.R.Conf.Rep. No. 96-897, 9 (1980) U.S.Code Cong. & Admin.News 1980, p. 787, 833);
United States v. Pennsylvania,
863 F.Supp. at 219-20 (“From this language [in § 1997a(a) ] the Court must hold that the Attorney General is vested with the discretion to bring suit whenever she is satisfied that a case is serious enough to warrant federal involvement. Once such a determination is made by the Attorney General, the standard of proof to be borne by the United States at trial must be the same as any other plaintiff.”);
United States v. Ten
*579
nessee,
798 F.Supp. 483 , 488 (W.D.Tenn.1992) (“CRIPA is a standing statute.”).
The five elements identified by the Commonwealth apply only to the Attorney General’s “reasonable cause” determination, which must be made before the Attorney General may properly institute a CRIPA action. 42 U.S.C. § 1997a(a). One court has concluded that this plain reading of the statute is supported by its legislative history.
2
Inasmuch as I conclude that it is clear from the text that § 1997a(a) is a standing statute, I believe an examination of its legislative history is unnecessary.
3
As the Supreme Court of the United States has noted, CRIPA is legislation pertaining to “a specific class of § 1983 actions.”
Felder v. Casey,
487 U.S. 131, 148 , 108 S.Ct. 2302, 2312 , 101 L.Ed.2d 123 (1988) (state statute creating exhaustion requirement for § 1983 action held violative of Supremacy Clause).
For
purposes of the instant action, it is important to remember that § 1983 did not
create
any new rights, but was enacted by Congress “to give a
remedy
to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position.”
Monroe v. Pape,
365 U.S. 167, 172 , 81 S.Ct. 473, 476 , 5 L.Ed.2d 492 (1961) (emphasis added).
See also Parratt v. Taylor,
451 U.S. 527, 535 , 101 S.Ct. 1908, 1913 , 68 L.Ed.2d 420 (1981)
(Section
1983 provides “a ‘civil remedy’ for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind.”).
The Supreme Court has identified “two essential elements” to a § 1983 civil rights action:
(1) whether the conduct complained of was committed by a person acting under col- or of state law; and
(2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.
Id. Accord Shaw v. Strackhouse,
920 F.2d 1135, 1141-42 (3d Cir.1990). Because CRI-PA was enacted to provide standing for the Attorney General to initiate civil rights actions on behalf of institutionalized persons, the “essential elements” that the United States must prove are the same as in any civil rights action.
See United States v. Pennsylvania,
863 F.Supp. at 220 (“[T]he United States has no greater standard of proof than an individual plaintiff would bear in a case alleging the same illegal conduct on the part of a state.”).
In this case, the United States alleges-—and the Commonwealth does not dispute—that “defendants have acted or failed to act ... under color of state law.” Complaint, ¶ 15. The core of the dispute here concerns whether defendants have “deprive[d] residents of Ebensburg of rights, privileges, or immunities secured or protected by the Constitution of the United States.”
Id.,
¶ 21. The individually-named defendants have been sued in their official capacities, which “ ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ ”
Kentucky v. Graham,
473 U.S. 159, 165 , 105 S.Ct. 3099, 3105 , 87 L.Ed.2d 114 (1985) (quoting
Monell v. New York City Dept. of Social Services,
436 U.S. 658 , 690 n. 55, 98 S.Ct. 2018 , 2035 n. 55, 56 L.Ed.2d 611 (1978)).
Accord Will v. Michigan Dept. of State Police,
491 U.S. 58, 71 , 109 S.Ct. 2304, 2312 , 105 L.Ed.2d 45 (1989) (“Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. As such, it is no different from a suit against the State itself.”).
4
*580
In an official-capacity suit, a “governmental entity is liable ... only when the entity itself is a ‘ “moving force” ’ behind the deprivation; thus, in an official-capacity suit the entity’s ‘policy or custom’ must have played a part in the violation of federal law.”
Graham,
473 U.S. at 166 , 105 S.Ct. at 3105 (citations omitted). The United States’ Complaint in this action alleges that the Commonwealth’s “policy or custom” as implemented at the Center has violated the residents’ constitutional rights.
See
Complaint, ¶ 21 (“The acts and omissions alleged ... constitute patterns or practices of resistance to the full enjoyment of rights, privileges or immunities secured or protected by the Constitution of the United States, and deprive residents of Ebensburg of such rights, privileges or immunities.”).
B.
Substantive Due Process Rights of Institutionalized Mentally Retarded Persons
The United States contends that the Commonwealth has subjected the residents of the Center to a deprivation of their liberty interests protected by the Due Process clause of the Fourteenth Amendment of the United States Constitution,
5
because they have not been provided:
a. adequate basic care—in particular, adequate food, shelter, clothing, and hygiene;
b. adequate medical care;
e. freedom from undue restraint, and training programs to ensure freedom from undue restraint; and
d. safe conditions.
In
Youngberg v. Romeo,
457 U.S. 307, 314 , 102 S.Ct. 2452, 2457 , 73 L.Ed.2d 28 (1982), the Supreme Court considered “for the first time the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment to the Constitution.” The
Youngberg
Court acknowledged that “[t]he mere fact that Romeo has been committed [to a Pennsylvania state institution] under proper procedures does not deprive him of all
substantive liberty interests
under the Fourteenth Amendment.”
Id.
(emphasis added).
The defendants in
Youngberg
(three administrators of the Pennsylvania institution) “concedefd] a duty to provide adequate food, shelter, clothing, and medical care.”
Id.
at 324 , 102 S.Ct. at 2462. The Supreme Court noted that these duties “are the essentials of the care that the State must provide.”
Id.
Separate and apart from these interests, however, the plaintiff argued that he had “a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that [the defendants] infringed these rights by failing to provide constitutionally required conditions of confinement.”
Id.
at 315, 102 S.Ct. at 2457. The Court’s task, therefore, was to “decide whether liberty interests also exist in safety, freedom of movement, and training,”
*581
and, if so, to “decide whether they have been infringed in this case.”
Id.
The
Youngberg
Court found that the first two claims—safe conditions and freedom from bodily restraint—involved “liberty interests recognized by prior decisions of this Court, interests that involuntary commitment proceedings do not extinguish.”
Id.
(footnote omitted). The plaintiffs other claim—a constitutional right to minimally adequate training—was, in the words of the Court, “more troubling.”
Id.
at 316 , 102 S.Ct. at 2458.
In addressing the asserted right to training, we start from established principles. As a general matter, a State is under no constitutional duty to provide substantive services for those within its border. When a person is institutionalized—and wholly dependent on the State— it is conceded by petitioner that a duty to provide certain services and care does exist, although even then a State necessarily has considerable discretion in determining the nature and scope of its responsibilities. Nor must a State “choose between attacking every aspect of a problem or not attacking the problem at all.”
Id.
at 317, 102 S.Ct. at 2459 (citations omitted). The Court noted that the plaintiffs “primary needs” were “bodily safety and a minimum of physical restraint,” and the plaintiff “clearly claim[ed] training related to these needs.”
Id.
at 317-18, 102 S.Ct. at 2459. The Court therefore held that “[i]n the circumstances presented by this case, and on the basis of the record developed to date, we agree ... that [the plaintiffs] liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint.”
Id.
at 319, 102 S.Ct. at 2460.
6
Significantly, although the Court found that a constitutional liberty interest existed that required Pennsylvania to provide “minimally adequate or reasonable training,” the Court cautioned against adopting an unrestrained notion of liberty interests that would impose additional duties on a State:
It is not feasible, as is evident from the variety of language and formulations in the opinions below and the various briefs here, to define or identify the type of training that may be required in every case. A court properly may start with the generalization that there is a right to minimally adequate training. The basic requirement of adequacy, in terms more familiar to courts, may be stated as that training which is reasonable in light of identifiable liberty interests and the circumstances of the case.
A federal court, of course, must identify a constitutional predicate for the imposition of any affirmative duty on a State.
*582
Id.
at 319 n. 25, 102 S.Ct. at 2460 n. 25 (emphasis added).
After establishing that the plaintiff in
Youngberg
retained “liberty interests in safety and freedom from bodily restraint,” the Court explained the need to set forth a standard to apply in determining whether the State has violated these substantive due process rights of an involuntarily committed mentally retarded individual.
The question ... is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process.
# s}: >}i
[WJhether [the plaintiffs] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests. If there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury.
Id.
at 320-21 , 102 S.Ct. at 2460-61. The Court then held that “ ‘the Constitution only requires that the courts make certain that professional judgment in fact was exercised.
It is not appropriate for the couHs to specify which of several professional choices should have been made.’
”
Id.
at 321, 102 S.Ct. at 2461 (emphasis added) (citation omitted).
7
With respect to the plaintiffs claim for minimally adequate training, the
Young-berg
Court explained the deference to be shown in applying the “professional judgment” standard:
In this case, the minimally adequate training required by the Constitution is such training as may be reasonable in light of respondent’s liberty interests in safety and freedom from unreasonable restraints. In determining what is “reasonable”—in this and in any case presenting a claim for training by a State—we emphasize that the courts must show deference to the judgment exercised by a qualified professional. By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized.... [T]he decision, if made by a professional, is presumptively valid;
liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.
Id.
at 322-23, 102 S.Ct. at 2462-63 (emphasis added) (footnotes omitted).
See also Society for Good Will to Retarded Children v. Cuomo,
737 F.2d 1239, 1248 (2d Cir.1984)
(“Youngberg
held that due process is satisfied if restraints are imposed on mentally retarded individuals in accordance with the judgment of qualified professionals and that courts should defer to this professional judgment.”).
C.
The Professional Judgment Standard
The United States contends that the “professional judgment” standard set forth in
Youngberg
is not applicable, but if it is applicable, the standard pertains only to the claim regarding training. 87/30-33.
8
The United
*583
States’ argument is based on a tortured reading of
Youngberg ,
and completely ignores Third Circuit precedent interpreting
Young-berg,
which is binding on this Court.
See Shaw v. Strackhouse,
920 F.2d 1135, 1146 (3d Cir.1992) (“Absent even a hint that the Court meant to so limit its holding, we must read
Youngberg
at face value and apply the professional judgment standard to all failure to protect, excessive restraint, and failure to habilitate claims brought by mentally retarded persons who are institutionalized, whether such claims are brought independently or in tandem.”).
The United States argues: “As contemplated in
Youngberg ,
safety is an objective standard that can be measured through objective criteria.” 87/30. The United States fails to explain how this novel proposition is “contemplated” in
Youngberg ,
and fails to indicate the source of the “objective standard” that this Court should apply. To the contrary, the Supreme Court in
Youngberg
specifically stated that, in determining whether the constitutional rights of an institutionalized individual have been violated, a court must balance the individual’s liberty interests against the relevant state interests, and that “[i]f there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury.” 457 U.S. at 321, 102 S.Ct. at 2461. For this very reason, the Supreme Court set forth the “professional judgment” standard. The United States’ argument must be rejected.
9
In
Shaw ,
the Third Circuit attempted to clarify the meaning of the “professional judgment” standard established in
Youngberg ,
and stressed that mere negligence “cannot trigger due process protection.”
Id.
at 1146.
Professional judgment is a relatively deferential standard. It requires
only
that a state actor exercise professional judgment in choosing the appropriate course of action. Negligence, however, imposes on a state official the burden of choosing, from among alternatives, a course of action consistent with the exercise of ‘due care.’ That means, as we see it, rejecting negligent alternatives that might nonetheless satisfy the demands of professional judgment. [Professional judgment] appears to us to be a substantially less onerous standard than negligence from the viewpoint of the public actor. Indeed, in our view, professional judgment more closely approximates — although, as we have discussed, remains somewhat less deferential than — a recklessness or gross negligence standard. Professional judgment, like recklessness and gross negligence, generally falls somewhere between simple negligence and intentional misconduct.
Id.
(emphasis added).
Accord Society for Good Will to Retarded Children,
737 F.2d at 1248 (“ ‘[Professional judgment’ has nothing to do with what course of action would make patients ‘safer, happier and more productive.’ Rather, it is a standard that determines whether a particular decision has substantially met professionally accepted minimum standards.”).
As
Shaw
and other cases decided since
Youngberg
explain, the “professional judgment” standard
(i.e.,
deciding whether a decisionmaker’s action, or inaction, constituted “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment,” 457 U.S. at 323, 102 S.Ct. at 2462,) is a less onerous standard for a state actor to meet than that of negligence
*584
or medical malpractice. Optimal courses of treatment as determined by some expert, while laudable, do not establish the minimal constitutional standard.
Society for Good Will to Retarded Children,
737 F.2d at 1248 .
10
Instead, the factfinder must determine whether the decision made by the professional comports with minimally accepted professional standards.
In making this determination, expert testimony is “relevant not because of the experts’ own opinions — which are likely to diverge widely — but because that testimony may shed light on what constitutes minimally accepted standards across the profession.”
Society for Good Will to Retarded Children, Inc.,
737 F.2d at 1248 .
The role of the experts is only to assist the court in ascertaining what the minimum professional standard is; the ultimate question is whether ‘“professional judgment
in fact
was exercised.’ ” Even if every expert testifying at trial agrees that another type of treatment or residence setting might be better, the federal courts may only decide whether the treatment or residence setting that actually was selected was a “substantial departure” from prevailing standards of practice.
Id.
at 1248-49 (citations omitted).
Accord Society for Good Will to Retarded Children, Inc. v. Cuomo,
902 F.2d 1085, 1090 (2d Cir.1990) (district court erred in finding constitutional violations without first determining whether the conditions and treatment substantially departed from accepted professional judgment; “the district court should use expert testimony to identify ‘substantial departures’, but not to choose from among several professionally acceptable remedies”).
III.
FINDINGS OF FACT AND CONCLUSIONS REGARDING LIBERTY INTERESTS AT ISSUE IN THIS LITIGATION
The United States alleges that four separate categories of “liberty interests” have been violated at the Center. To properly analyze the evidence, I must evaluate (1) the nature of the liberty interests of the residents at issue (and defendants’ corresponding duty to protect those rights); and (2) whether defendants’ official customs and policies, as implemented at the Center, so substantially departed from accepted professional judgment, practice, or standards as to demonstrate that defendants actually did not base their decisions on professional judgment.
This case has been carefully and exhaustively litigated by the United States and the defendants. Constraints of time and space do not permit me to respond to every one of the manifold factual and legal contentions raised by the United States with respect to the liberty interests at issue in this litigation. As the lengthy opinion which follows demonstrates, however, I have attempted to address in detail the more serious issues, while confronting the remaining issues in a general manner. Before addressing the United States’ contentions, a brief overview of the Center’s structure and services is in order.
A.
The Center’s Structure and Services
The Ebensburg Center is an institution operated by the Commonwealth for mentally retarded persons, serving Bedford, Blair, Cambria and Somerset Counties. The Center is licensed as an intermediate care facility for persons with mental retardation and is geared toward caring for individuals with significant behavioral deficits who require assistance to meet their daily needs, and who have been unable to procure like services elsewhere. Exh. 11. The Center has a full operating license under the federal standards of the Title XIX Medicaid Program, which is a prerequisite for participating in the Medicaid Program. 62/158.
The Center was built in the 1950s. Many of the residents were placed at the center as children, and currently the median age of the residents is 32.5 years. 62/163. The Center’s 475 residents live in five buildings or living units, each of which has four separate wings. There are approximately 96 residents to each building or 24 residents to each
*585
wing. 62/140-41; Exh. 608/62.
11
The Center currently provides four private rooms per unit and plans to increase the number of private rooms available. Exh. 603/104; 63/27.
The living units are the Keystone House, Laurel House, Sunset House, Horizon House, and the Villa House. The Keystone Unit houses the residents who are more profoundly mentally retarded and more physically disabled. Some physically handicapped residents also live in the Laurel, Horizon, Sunset and Villa living units. 34/98. Approximately one third of the residents of the Keystone unit are essentially immobile — meaning that, as a result of their physical handicaps, they have no active movement, except for the ability to move their head, or to slightly move an arm or leg. 34/98. The physical handicaps manifested by the residents at the Center are a result of damage to the brain. 34/107.
Laurel Unit houses mentally retarded women. Some of the mentally retarded men reside in the Sunset House. Horizon House houses residents who are visually impaired or blind. Villa is home for the Center’s higher functioning individuals who are mildly to moderately mentally retarded. 43/81.
The Center has been budgeted a total of 790 full-time staff, which includes direct staff, professional staff and administrative staff. Exh. 601/53, 95. Additional staff may be requested during or before the fiscal year from a pool of staff serving facilities operated by the state. Exh. 600/95-99. Approximately 366 of the Center’s staff are involved solely with direct care. Exh. 600/99.
Alan M. Bellomo was appointed as Director of the Ebensburg Center in 1985 and continues to serve in that capacity. 62/130. As Director, he oversees the total operation of the facility to insure that the residents are receiving adequate services, care and treatment. Exh. 600/51-52. All staff of the Center are ultimately responsible to Mr. Bello-mo. Exh. 600/52. Mr. Bellomo relies in part on the judgments of his division director, disciplinary coordinator, outside reviews, advocacy groups and family association members to keep him updated on the needs of the facility. Exh. 600/63.
Mr. Bellomo reports to Dr. Sneed, who is the Director of the Bureau of Direct Program Operations for the OMR. 63/25. Dr. Sneed supervises the direction of eight other mental retardation facilities and is supervised himself by the Pennsylvania Deputy Secretary for Mental Retardation. Exh. 600/64-67. Dr. Sneed speaks with Mr. Bellomo at least once a week and attends monthly meetings with Mr. Bellomo. Exh. 600/67-73.
Under Mr. Bellomo’s direction, the Center’s Executive Staff perform rounds of the facility to remain abreast of resident’s concerns and care. These rounds give management the opportunity to know the residents personally, provide oversight when there would otherwise be none, and give the employees an opportunity to speak openly with facility management. Exh. 600/11-12; 63/8— 9; 63/59. Management submits weekly observations and criticisms of the facility to Mr. Bellomo for consideration. Exh. 603/10. Mr. Bellomo addresses these concerns as they arise and creates incremental plans to reheve problems. Exh. 600/25-27.
As facility director, Mr. Bellomo also chairs the Executive Staff and Risk Management committees and participates on the Mortality and Morbidity Review and Budget committees. Exh. 600/49. Mr. Bellomo often attends the annual reviews that occur at the facility.
Id.
Additionally, Mr. BeUomo chairs town meetings so that he may address concerns of the residents. Exh. 600/49.
*586
As part of his management and oversight, Mr. Bellomo receives copies of the Center’s incident reports. Exh. 600/42-43; 63/16. Mr. Fulton, the Center’s safety director, also receives copies of the incident reports. As safety director, Mr. Fulton investigates all suspicious injuries, as well as any incident which Mr. Bellomo believes warrants further investigation. Exh. 601/131-35.
Richard G. O’Brien has been Director of Program Services at the Center since 1982. 64/65. As Director of Program Services, Mr. O’Brien is responsible for monitoring discipline coordinators in the areas of psychology, nursing, speech pathology, volunteer resources and social services. He also is responsible for the contract services provided to the Center by Liberty Health Care, Mercy Hospital, Cameo’s physical therapy services, and various laboratory services. In addition, Mr. O’Brien is responsible for the operation of and monitoring of the quality assurance program. 64/66. This program insures that Ebensburg complies with various federal standards and properly implements the standard for Intermediate Care Facilities for the Mentally Retarded (ICFMR). Exh. 600/53.
The Center is organized along the lines of a “unit system” — a method of operation that became popular in the 1970s in an effort “to get away from the clearly delineated — what became isolated — roles of different professionals.” 51/17. The unit system strives to better coordinate the services of all the professional disciplines that are provided to the residents, with each unit director or manager administratively supervising the provision of services to his or her residents. 51/17-19.
Under the unit system, all of the living units are served by the Center’s Director of Residential Unit Management (DRUM), David Devine. Mr. Devine supervises each building’s Unit Manager, and Mr. Devine is ultimately responsible for providing adequate residential services and care to the residents of the facility. Exh. 608/22; 63/8. Mr. De-vine’s direct supervisor is Mr. Bellomo. Exh. 608/34.
The Unit Managers run each unit in three shifts. The first shift is supervised by a Residential Service Supervisor (RSS), who is a Qualified Mental Retardation Professional (QMRP). The QMRP is the staff person responsible for a resident’s case management, which includes a ninety-day review to insure that all services are being properly provided. The QMRP also coordinates that resident’s annual staffing and insures that any provider of a program service documents activity in the chart. 64/130. The RSS also supervises the Residential Service Aids (RSAs) who provide direct care to the residents. Exh. 608/190. Residential Service Aide Supervisors (RSAS) and Residential Service Night Aide Supervisors (RSNAS) act as RSA supervisors on the second and third shifts, respectively. Exh. 601/78.
Mr. Devine also is responsible for scheduling staff and meeting direct care employee quotas. Quotas, the minimum number of RSAs allowed for a shift, are set by Mr. Bellomo to insure that residents receive adequate attention and care. Currently, the Center employs approximately 366 full-time and twenty-nine substitute RSAs to meet the existing quotas. Exh. 601/7-8. Professional staff are not included when determining the quota, but the record reveals that approximately 30% of the RSAS’ time per month is spent working in cooperation with the RSA quota, providing hands-on care and at the same time monitoring their staff. Exh. 600/140; Exh. 601/69-71; Exh. 608/97. RSASs are not included in the quota because they also are responsible for administrative tasks, such as assisting in the design and implementation of the residents’ programs. Exh. 601/78.
On occasion, Mr. Devine also uses unit “pulls” to meet his minimum quota. Generally RSAs are “pulled” from one unit to work in another so that both units are able to make quota for that shift. Exh. 601/78-80. Occasionally, Mr. Devine must pull nurses, so that the Registered Nurse Supervisors are properly supported. Exh. 601/80. The Center’s quota mínimums exceed Title XIX’s requirements and are reviewed on a monthly basis by the OMR. Exh. 600/149, 152.
Mr. Devine’s duties also include the supervision of infection control, all staff of the third shift, as well as three nurse supervisors. Finally, as DRUM, Mr. Devine sits on
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the Executive Staff Safety Committee, Risk Committee, Budget Committee, Approved Purchase Committee, Record Committee, Probationary Review, Mortality/Morbidity Committee, and the Policy Committee. Exh. 608/16-18, 188.
Mary Kay Bennett acts as the Center’s guardian officer, and ensures that the residents’ money is safeguarded and reasonably spent. Exh. 603/25, 56. Ms. Bennett is court-appointed and supervised by a western regional officer. Exh. 603/25-26.
The state, through the Pennsylvania Protection and Advocacy Organization (PP & A), also provides some residents with advocates. PP & A is recognized by Pennsylvania’s governor as an advocate for the disabled and occasionally subcontracts its duties with the state Association for Retarded Citizens (ARC). Due to an inadequacy of representation, however, the Center began a program which utilizes citizens from the Ebensburg area as “special friends” and advocates for the residents. The special friends form relationships with the residents, visit on holidays, and attend the residents’ annual care review if possible. Exh. 603/26-27.
The facility also attempts to place residents in the surrounding area so that they have an opportunity to live in a non-institutional community. 63/171. Mr. Bellomo recommends that residents be placed in the community, but the county’s mental health/mental retardation administrator makes final determinations on placement. Exh. 600/81; 63/18. Although the Center has residents who could be placed in the community, no such facilities are currently available. In an effort to ameliorate this unfortunate situation, for those residents who qualify for community placement, the facility awards “grounds privileges,” which allows those residents to walk independently on the grounds or go to the mini-mall located near the facility. 63/160.
The standards of Title XIX require that facilities such as the Center be subjected to an unannounced, annual survey. 62/158. The survey team is present for approximately one week and scrutinizes the Center for its compliance with approximately 475 different standards. 64/42. The survey team then provides a report to the Center listing its concerns, and the Center must provide a plan of correction, which specifies a particular date for compliance. Thereafter, the survey team will return unannounced to ascertain if the various deficiencies previously cited have, in fact, been completely corrected. 64/42.
As a result of a Title XIX survey in October 1990, the Center received a Provisional I license under Title XIX for January 31,1991, to July 31, 1991. 62/144; Exh. 1101. The provisional license was recommended by the Title XIX survey team to the OMR (which is responsible for the licensure process and is under the aegis of the Pennsylvania Department of Public Welfare). 62/144-45. The survey team recommended the provisional license as a result of problematic sexual behavior presented by one male resident, Clifford P. The Title XIX survey team was of the opinion that the Center had to develop a sexuality program to address this problematic sexual behavior before a full operating license could be recommended. 602/113. Significantly, the Title XIX survey team noted “the deficiencies during this survey do not individually or collectively jeopardize client health and safety or seriously impair the facility’s ability to render care.” 62/144. The Provisional I license issued by the Pennsylvania Department of Public Welfare was not equivalent to the decertification process that exists under the Health Care Finance Administration. 62/147.
Subsequently, the Provisional I license was replaced by a full operating license issued by the Pennsylvania Department of Public Welfare. The record contains no evidence of the issuance of any other provisional license. A full operating license under the Title XIX Medicaid Program is not an indication that a facility does not have any deficiencies. In fact, it is rare for a Title XIX survey team not to find some deficiencies in a facility which it has inspected. 64/44.
In addition to the Title XIX Medicaid Program inspection and licensing process, the Center also is subject to the Inspection of Care (IoC) survey process carried out by the Office of Medical Assistance, a division of the Pennsylvania Department of Public Welfare.
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The federal Title XIX survey and the Pennsylvania IoC survey are two separate processes. 62/159;
compare
Exh. 60 (11/92 Title XIX survey) and Exh. 67 (8/92 IOC survey). The IoC surveyors who visit the facility actually go page by page through all records of the Center, noting any deficiency which is apparent. A plan of correction for these deficiencies must be submitted and approved by the Office of Medical Assistance. 62/158-59; Exh. 68. If a plan of correction is not approved and implemented, the Center risks the loss of Medicaid funding. Exh. 63. The record does not contain any evidence of any plans of correction which have not been approved or implemented.
B.
Adequate Basic Care
The United States contends that defendants have failed to provide the residents at the Center with the constitutionally required level of basic care. In particular, the United States alleges that insects have been found on food and on the residents,
12
the clothing of some residents has been soiled, residents have not been bathed properly, and there is a disregard for the privacy of residents. 87/8-9; 92/22-3.
13
As noted above, adequate food, shelter and clothing are “essentials of ... care that the State must provide” to the residents of the Center.
Youngberg,
457 U.S. at 324 , 102 S.Ct. at 2462. The United States’ allegations with respect to inadequate food (nutritional management) are addressed below in the discussion concerning adequate medical care, and I limit this portion of the opinion to the right to receive adequate shelter and clothing.
In
Society for Good Will,
737 F.2d at 1244 , the Court of Appeals for the Second Circuit affirmed a district court’s finding that “the quality of the shelter at [a state operated school for the mentally retarded] did not meet constitutional mínimums.” The Second Circuit noted the conditions of filth, insect and rodent infestation, unsanitary conditions resulting in the transmission of various diseases, and inordinately hot rooms and/or temperature control problems, and held that the record contained sufficient evidence to support the district court’s conclusion that the shelter was constitutionally infirm.
Id.
The court specifically noted that the problems at the facility were pervasive, and were not simply isolated lapses in care — “there was sufficient evidence for the district court to conclude that problems in the living conditions at [the institution] were either not being corrected or were arising on a recurring basis and that these problems caused the living environment to fall below constitutional standards.”
Id.
In this case, the United States has persistently focused on two incidents involving insects as a basis for its assertion that the Center, as an institution, has failed to provide adequate shelter. The first instance involved the discovery of ants on two residents who had been placed on floor mats in the day room to sleep overnight because their rooms were being painted. The staff discovered the ants on their bodies on two separate mornings
(i.e.,
the first resident was discovered with ants on her body on one morning, and the other resident was discovered with ants the following morning). Exh. 87. Thereafter, the staff took steps to exterminate the insects, and the residents’ beds were moved out to the day room for overnight sleeping purposes while the rooms were being painted.
Id.
at 00000918.
The other, more serious incident involved the discovery of an infestation of maggots in a resident’s ear. Exh. 1022. Just how this infestation occurred could not be definitively established, but the Center’s investigation concluded that this resident’s ear most likely became infested as a result of outdoor activity in the grass, which was confirmed by the emergency room physician. 63/77. No other similar incidents were reported.
*589
These two isolated instances related to insects, without more, are insufficient to demonstrate that the Center provides constitutionally inadequate basic care by tolerating insect infestations. To the contrary, the Commonwealth proffered credible evidence that these incidents were promptly reported by the staff. Upon notification of circumstances warranting attention, professional judgment was exercised; the situations were addressed, and the problems did not recur.
As the Third Circuit in
Shaw
explained (in addressing a claim for alleged inadequate safety), isolated examples of problems, while regrettable, do not establish constitutional violations.
Although the failure to prevent a “pattern of attacks, injuries, or violent behavior” is actionable, “[t]he right to protection is not activated by an isolated mishap, or called into question by each bruise that a patient may suffer.” We do not mean to minimize the seriousness of Shaw’s February 3 injury. We conclude, however, that the failure of the responsible staff member to keep watch over Shaw at the instant he happened to leave or be taken from his ward on February 3 amounts to just such an “isolated mishap.” It cannot amount to more than simple negligence.
920 F.2d at 1143 (citation omitted).
See also Society for Good Will,
737 F.2d at 1245 (“While there have been occasions when patients’ specific medical problems have been treated improperly, the district court’s decision should not have been based on isolated instances of improper treatment, but on a finding that medical care was inadequate on a class-wide basis. Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation.”).
The United States also asserts that the clothing provided to the residents of the Center violates constitutional minimum standards because, on occasions, residents have been found with soiled clothing and soiled diapers. In support of its position, the United States cites expert testimony regarding a patient who he discovered with vomitus on his face and clothing. Dr. Stark, a psychologist who specializes in the care of persons with developmental disabilities, testified that he notified someone about the resident’s condition, and that it “took a while” for someone to clean it up. Dr. Stark also stated that he saw residents with food stains on their clothes, and that some residents had a body odor and others an odor of urine. 43/220.
Obviously, the presence of vomitus on one’s person is unpleasant for that individual and repugnant to others. Again, however, the record indicates that this was an isolated occurrence, and, without more, I cannot deem this incident indicative of a failure by the Center to provide adequate clothing for the residents or to promptly respond to situations requiring care and attention. In particular, I note that the record contains credible testimony that the staff at the Center felt inhibited and hesitated to intervene on behalf of the residents in the presence of the United States’ experts. 62/198.
Moreover, even if I consider this incident together with the testimony that residents had food stains on their clothes, I cannot find defendants constitutionally deficient in providing adequate clothing to the residents. There are stains which by their nature alter the appearance of clothing, but which do not automatically make it unfit to wear. The United States’ own witness, Mr. Tackett, acknowledged that the Center routinely changed the clothing of those residents in the Keystone unit who “needed it.” 38/17. In addition, the United States’ photographic exhibits reveal that each resident had clean, presentable, and properly-fitting clothing.
See, e.g.,
Exhs. 670-71, 678-82, 705, 709-10, 713, 734-40. This is a trivial matter that does not warrant the constitutional analysis which the Government’s contention requires of me.
With respect to the United States’ contention that the residents smell like urine, the United States cites the conclusory testimony of Dr. Stark (which provided no evidence with respect to the frequency of this alleged problem), 43/220, and a November 6, 1992, Medical Assistance Survey. Exh. 60. The November 1992 Survey states that a Medicaid standard had not been met because 12 residents were confined to their wheelchairs for 5 hours without being changed,
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and when changed, the Attends (a brand name of an adult diaper) worn by those residents were heavily saturated with urine. Exh. 60, 00503763. There is no reference to urine saturated residents or urine saturated Attends in any other of the Medical Assistance Surveys from 1983 to 1992
(see
Exhs. 48-59) nor is there any other testimony in this regard. This single discovery by the survey team hardly proves a prevalent condition at the Center.
The United States contends the residents are not bathed properly, citing the testimony of Mr. Tackett, a former Center employee, and an anonymous complaint at a union meeting about residents being “hosed up one side and down the other.” Exh. 995. As I indicated during the trial of this matter, the anonymous complaint at a union meeting about bathing the residents is not competent evidence. It is hearsay which is being offered to prove the truth of the matter asserted, Fed.R.Evid. 801(c). The declarant has not been subject to cross-examination, nor is his/her identity even known. Moreover, the reliability of the evidence is suspect in light of the fact that the employee would not repeat the allegation at the request of the Center so that the Center might seek to validate the complaint and, if necessary, address it. 64/46-47. There is no evidence to suggest that the employee wished to remain anonymous because he feared retaliation.
Mr. Tackett testified that the bathing process in the Keystone living unit was like an assembly line, “it could have been longer ... it was done very quickly....” 38/27-28. The substance of his testimony does not establish an inadequate bathing process. Although the procedure is done quickly, it is routine for the staff. Mr. Tackett’s testimony does not assert that the residents were still dirty after being bathed, that they smelled, or that they were not bathed frequently enough. Rather, his testimony suggests no more than that they were bathed too quickly. This hardly demonstrates a failure to exercise professional judgment, or that the Center’s bathing practices did not meet minimum professional standards.
Finally, the United States submits that the Center fails to provide adequate care for the residents because it does not provide the residents with privacy. Although the Supreme Court in
Youngberg
did not explicitly acknowledge a “right to privacy” for institutionalized mentally retarded individuals, it is only logical to infer from the Court’s recognition of the right to adequate clothing that there exists a correlative right to avoid being viewed unclothed. 457 U.S. at 324, 102 S.Ct. at 2462;
see also Association for Retarded Citizens of North Dakota,
561 F.Supp. at 491.
The United States points to the fact that privacy issues have been addressed in every annual state survey, and yet the Center has failed to respond effectively. The United States further notes that even Mr. Bellomo observed an incident involving seven residents clothed in only Attends, milling about a hallway while locked out of their rooms. Exh. 109. These problems with privacy have by and large occurred in the Sunset, Horizon or Villa living units, where the residents are more mobile.
The November/December 1983 Medical Assistance Survey for the Center noted a lack of privacy for residents during toileting and bathing. Exh. 48, #00800265. In the October 1989 Medical Assistance Survey, a deficiency was noted because residents in Keystone were dressed, changed and bathed without privacy, and two residents in Horizon II used the bathroom stalls without closing the privacy curtain. Exh. 56, #00800324. In October of 1990, the Medical Assistance Survey noted a deficiency because a resident was observed while in a Villa unit TV room without a blouse on, and another resident was observed walking naked from the bathroom to the TV room. Exh. 57, # 00004041.
For each of these deficiencies, the Center’s Plan of Correction provided for in-servicing or teaching the staff regarding the need to afford greater privacy to residents. The privacy issues were not ignored, and I find that the Plan of Correction implemented at the Center fully comports with accepted professional standards. The record is clear that the Center responded to the breaches of privacy by instituting more training. The
*591
professional judgment exercised, therefore, is not a substantial departure from accepted professional standards.
The fact that the training did not bring about a complete cessation of incidents like those described above does not compel the finding of a violation of the residents’ right to privacy. Improvements were made, and the United States failed to offer any testimony, expert or otherwise, concerning how the Center’s action in responding to the privacy breaches constituted a substantial deviation from acceptable professional standards.
14
To summarize, I find that the United States has failed to prove that the cited lapses in basic care at the Center—either individually or in total—have risen to the level of a constitutional violation, much less that the Commonwealth’s official “policy or custom” played any role in the alleged deprivation of care.
See Graham,
473 U.S. at 166 , 105 S.Ct. at 3105 (in official-capacity suit, the governmental entity’s “policy or custom” must have played a part in the violation of federal law). In response to each of the problems with care discussed above (which occurred in different areas over the course of several years at this large institution), the Center responded with corrective measures pursuant to the exercise of professional judgment. While the lapses by the Center may have been negligent—and are at least regrettable—I conclude that the basic care provided at the Center does not constitute a substantial deviation from professional standards and is not constitutionally infirm.
C.
Adequate Medical Care
The right of an institutionalized mentally retarded person to receive adequate medical care—acknowledged without discussion by the Supreme Court in
Youngberg
as a substantive liberty interest protected by the Fourteenth Amendment (457 U.S. at 315, 324, 102 S.Ct. at 2457-58, 2462)—has been discussed by a number of courts.
See, e.g., Society for Good Will,
737 F.2d at 1245 (district court’s finding of inadequate medical care at facility was clearly erroneous; “Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation.”);
Lelsz v. Kavanagh,
673 F.Supp. 828, 834 (N.D.Tex.1987) (constitutionally required medical care “includes not only life-preserving or emergency care, but also regular and preventive treatment for ordinary or chronic ailments.”). The United States challenges the following areas of medical care at the Center: neurologic care; psychiatric care; treatment of gastroesophageal reflux and aspiration; nutritional management; physical therapy and physical management; general medical care; and general nursing care.
1. NEUROLOGIC CARE
The United States contends that the Center’s efforts to provide emergent neurological care for its residents who sustain status epi-lepticus
15
constitutes a substantial deviation from accepted professional judgment. 87/77-82. It further contends that the Center’s provision of regular and preventive neurological care is likewise deficient. In particular,
*592
the United States claims that the Center’s treatment of residents with seizure disorders substantially deviates from accepted professional judgment because: (1) the residents receive more medication and combinations of medication to prevent seizures and sustain more adverse side effects than are acceptable, 87/84-86; (2) some of the residents receive anticonvulsant medication despite the fact that a diagnostic test, which has not been administered, may indicate that the resident does not experience seizure activity, 87/83-84; and (3) residents who experience seizure activity continue to sustain injuries of varying magnitude, 87/83.
In one sense, any seizure activity is an emergency. True status epilepticus, however, presents special concerns not only because of the seizure and its associated loss of consciousness, but also because of the potential to compromise an individual’s respiratory status and the ability to oxygenate the tissues of the brain and other vital organs. 49/235; 36/50-51; 81/17. The longer the seizure activity persists, the more difficult it is to control with medication. 81/141. On the other hand, most seizures spontaneously cease within a few minutes. 36/201. A seizure that lasts one, two or three minutes and then ends with the resident responding, while clinically significant, is not an emergency situation. 81/34. To further complicate the assessment of status epilepticus and its treatment, neither the onset nor the duration of a seizure can be predicted. Exh. 1107, p. 854; 81/33, 119-20.
Against this backdrop, I must determine whether the Center’s care of its residents with status epilepticus constitutes a substantial deviation from acceptable professional standards. Dr. Alvarez, an expert neurologist for the United States, testified that the Center’s treatment of status epilepticus— which consists of observation and monitoring, the administration of oral or intramuscular anticonvulsants pursuant to a physician’s order, and ambulance transportation to a hospital — is not acceptable treatment. Dr. Alvarez testified that the most acceptable treatment for status epilepticus is the use of intravenous Valium, and that the intramuscular administration of anticonvulsants is a substantial deviation from acceptable professional standards. 36/55; Exh. 1107. The Commonwealth responded with evidence from Dr. Chamovitz, the Center’s consulting neurologist, that the Center is not licensed to provide intravenous therapy to its patients (64/171-2; Exh. 633 (1-19-93), pp. 25-26)), but that the treatment provided for residents in status epilepticus comported with acceptable medical treatment.
On rebuttal, Dr. Coulter, also a neurologist, emphasized the deficiency in the Center’s treatment of status by reference to a protocol recommended by the Epilepsy Foundation of America (EFA) stating that “intramuscular therapy has no place treating status epilepticus or seizures in general.” Exh. 1107/856. Dr. Coulter explained that the treatment protocol “pull[ed] together for the general medical community what neurologists have known for ten or fifteen years.” 81/24. Dr. Coulter noted that although the EFA treatment protocol recommendation was not new, it had been recently codified and published in the August 18,1993
Journal of the American Medical Association.
81/64. He noted that neurologists are the medical professionals most qualified to treat status epilepticus, and that the thrust of the EFA treatment protocol recommendation was for other medical practitioners who encountered patients in status. 81/18. The protocol recommendation was published in the
JAMA
for that reason- — “the intent was to put it in a place where all general physicians would see it ...” 81/19.
The primary care physicians at the Center who ordered the intramuscular administration of anticonvulsants are not neurologists, but general practitioners. This is the audience the EFA treatment protocol was hoping to reach. As Dr. Coulter’s testimony and the EFA treatment protocol itself establish, the “[tjreatment of status epilepticus varie[d], and archaic therapies with sedatives, insufficient doses, and intramuscular administration [were] still practiced in some areas.” 81/18— 25; Exh. 1107/854. As such, there was a tacit acknowledgment within the medical community that the protocol for the treatment of status epilepticus among medical practitioners, other than neurologists, before
*593
the publication of the EFA treatment protocol in August of 1993, was anything but clear. 81/18, 25;
see also
48/118-21 (Dr. Kastner’s testimony regarding confusion in medical literature about treatment of status epilepti-cus).
16
As a result, the direction by the Center’s primary care physicians to administer anticonvulsants intramuscularly to treat status epilepticus was made pursuant to an exercise of professional judgment that had some basis in accepted professional practice among general practitioners at that time. The Center’s administration of anticonvulsants intramuscularly for the treatment of status epilepticus during the period for which testimony was offered did not violate constitutional minimum standards.
17
The Center’s treatment of status epilepti-cus also includes observation and monitoring of the resident, and ambulance transportation to a hospital. Both Dr. Chamovitz and Dr. Coulter testified that this is the accepted modality of treatment for their patients who reside at home. 49/231-34; 81/33. Inasmuch as the Center is the “home” for the residents, both of these interventions are acceptable professional practices. Moreover, the observation and monitoring of a resident would appear to be a necessary component for purposes of determining whether that resident actually is in a state approaching status epilepticus, or has reached the point where additional services should be provided. 81/59. Once a determination has been made that the resident requires treatment that cannot be rendered at the Center, ambulance transportation is appropriate. 49/231-34. The Center’s contract with an ambulance association provides access to practitioners licensed to administer advanced life support services in conjunction with a physician from one of the local hospitals. 64/98-99.
18
Dr. Alvarez also challenged as deficient the regular neurologic care for the residents pertaining to the administration of anticonvul-sants. Dr. Alvarez alleged that there were too many residents on multiple anticonvul-sants, despite the fact that they had few seizures or were experiencing side effects. 36/114. It is undisputed that the acceptable standard for the treatment of seizures is the administration of the smallest dosage of anti-convulsant medications necessary to control seizures. 36/112; 48/126. However, if one anticonvulsant does not control an individual’s seizures, another anticonvulsant may be added to the regime. If two anticonvulsants do not control the seizures, a third anticon-vulsant may be added. Occasionally, if an individual’s seizures still are not controlled, a fourth anticonvulsant may be added. 36/112— 13; 49/241. Dr. Alvarez admitted that he himself had some patients on four anticonvul-sants to control their seizures. 36/149-50.
Dr. Alvarez supported his opinion that the Center had too many of its residents on multiple anticonvulsant medications by re
*594
viewing the medication regime of residents on four anticonvulsants.
See
Exhs. 307(a) and 351(a). Dr. Alvarez noted that the recommendation of the consulting neurologist, Dr. Chamovitz, to reduce the dosage of certain anticonvulsants for these residents on four different medications had been ignored by the primary care physician.
In response to this testimony by Dr. Alvarez, however, Dr. Chamovitz explained that the decisions of the primary care physicians not to reduce the number of and dosages of anticonvulsants were acceptable professional practices. Dr. Chamovitz described the manner in which he discussed his recommendation with the primary care physicians, who ultimately implemented or rejected them, and that the rejection of his recommendation was based on the fact that the primary care physician was more familiar with the resident and aware of previous unsuccessful efforts to reduce the amount of medication needed to control a resident’s seizure disorder. 49/241, 244-47. Dr. Chamovitz also testified regarding his confidence in the judgment of the primary care physicians, who although they were not neurologists, were very well versed in the treatment of seizures because 50% of the Center’s population is epileptic. 49/245.
Dr. Alvarez opined that even though poly-pharmacy with four drugs may be acceptable in some circumstances, it should only be instituted for a short period of time and for no more than two months. 36/112-13. The United States contends that the Center’s use of four anticonvulsants has gone on for years, as opposed to acceptable short periods of time. In response, Dr. Chamovitz testified that although treatment with four anticonvul-sants is not desirable, it is acceptable practice. 49/241.
Significantly, the Center has a total of 312 residents with a diagnosis of epilepsy, Exh. HH, Table 6, of whom 240 are prescribed anticonvulsant medication. Of the 312 epileptic residents, 17.63% are treated with po-lypharmacy: 13.46% are treated with three anticonvulsants and 4.17% treated with four anticonvulsants. Exh. HH, Table 6.
19
In addition, the Center has improved its treatment of seizures by reducing the number of anticonvulsants prescribed to control seizure activity. Dr. Kastner, a former Department of Justice consultant and a pediatrician who works with the developmentally disabled, testified that the Center’s efforts to reduce po-lypharmacy started in 1990, shortly after the publication by researchers in the field of a protocol calling for such action. 48/110. The result of this effort was illustrated by Dr. Kastner in a table documenting the treatment from 1990 through 1992 of the epileptic residents for whom Dr. Shertz, one of the Center’s primary care physicians, provided care. 48/109-10; Exh. HH, Table 7. Dr. Kastner opined that the “rate of polypharma-cy is not high” at the Center. 48/111.
Although it is preferable for residents with seizure disorders to be treated with less than four anticonvulsants where possible, I find that the administration of multiple anticonvulsants to some of the Center’s residents does not itself constitute a violation of the residents’ right to adequate neurological care. My role is not to decide whether adding this drug or continuing that one is the better course of treatment; rather, I am to evaluate whether the care provided met professionally accepted minimum standards.
See Society for Good Will,
902 F.2d at 1090 (“In its inquiry, the district court should use expert testimony to identify ‘substantial departures’, but not to choose from among several professionally acceptable remedies.”). In each case of polypharmacy, the decision to use an additional anticonvulsant was the result of the exercise of professional judgment that is consistent with acceptable professional standards. 49/247.
Dr. Alvarez also claimed that the regular neurologic care for the residents was deficient because the residents manifested too many side effects and no efforts were made to reduce the incidence of the side effects.
*595
36/120. According to Dr. Alvarez, a successful treatment for seizure disorders involves obtaining control of an individual’s seizures with the least amount of medication and with the fewest possible side effects. 36/152. To support his opinion that the residents manifested too many side effects from their anti-convulsant medications, Dr. Alvarez noted that Jeffrey K. continued to receive dosages of Depakote in an amount exceeding that recommended by the manufacturer, even though Dr. Chamovitz had questioned the high dosage. Exh. 393. Despite the high levels of Depakote, Jeffrey K.’s seizures were not controlled, and he was transferred to a local hospital for treatment. Although his Depakote level was within the therapeutic range, Jeffrey K. had developed thrombocy-topenia,
20
a side effect of Depakote. In explaining the Center’s care of Jeffrey K., Dr. Chamovitz testified that the treatment was acceptable because the high dosage was being administered in an effort to keep his blood level in the therapeutic range, in order to determine its effectiveness. 50/201-02. Thus, for this patient, the high dosage was consistent with the treatment recommendation of the manufacturer.
Dr. Alvarez also pointed to the case of Neil S. 36/125-7. Dr. Alvarez noted the documentation of persistent lethargy over a period of months, and blood levels of Dilantin which exceeded the upper limit of the therapeutic range. Neil S. was eventually hospitalized, treated for an infection, and his Dilantin dosage was reduced. His blood level returned to the therapeutic range, and he was discharged alert and improved. Exh. 468.
See also
Exhs. 462A (Charles S.), 372A (Roberta H.), and 36/125-33 for other residents with dilantin toxicity.
Dr. Alvarez was critical of the care provided to Neil S. and these residents because, despite the manifestation of sedation and lethargy, common symptoms of Dilantin therapy, either no blood levels were obtained
(ie.,
the residents’ blood levels were not tested) or the anticonvulsant dosage was not adjusted in response to high blood levels. 36/127-32. Dr. Chamovitz testified that the blood levels are routinely monitored. But Dr. Chamovitz’s testimony failed to establish why blood levels were not obtained when there is evidence of lethargy and sedation, or why the dosage of an anticonvulsant was not adjusted in light of facially toxic levels.
21
The Center provided no explanation, through documentary evidence or otherwise, for why these anticonvulsants were continued without adjustment.
Although monitoring by observation and obtaining more frequent blood levels may be acceptable in some cases, in the situations highlighted by Dr. Alvarez, there is no indication that the Center’s physicians made any conscious decision whatsoever regarding this aspect of treatment. As a result, professional judgment was not exercised. For this reason, I find the Center’s care in monitoring and responding to sedation caused by Dilantin
22
substantially devi
*596
ates from acceptable professional standards for patients with seizure disorders.
Injunctive relief in this action, however, is not warranted because the United States did not even attempt to establish that this lapse in the Center’s neurological care was the result of the Commonwealth’s “policy or custom” as implemented at the Center.
See Graham,
473 U.S. at 166 , 105 S.Ct. at 3105 (in official-capacity suit, entity’s “policy or custom” must have played a part in the violation of federal law). The United States’ constitutional challenge to neurological care in this “official-capacity” action, therefore, fails as a matter of law.
The provision of regular neurologic care to the Center’s residents also was faulted by Dr. Alvarez because the Center does not utilize videotaped EEGs. Dr. Alvarez explained that a videotaped EEG is a noninvasive diagnostic procedure that entails gluing electrodes to a patient’s scalp, with the patient’s brain activity then being recorded, while videotaping the patient. If the videotape captures a seizure event, the physician may be able to determine (in some cases) by comparing the tracing of the brain’s electrical activity and the patient’s activity on the videotape, whether what is being observed is in fact seizure activity. 36/97-98. Such identification is helpful because the detection of pseudoseizure activity would obviate the need for trial or long term administration of anti-convulsant medication. 36/97.
Dr. Alvarez’s testimony clearly establishes that utilizing a videotaped EEG is one option, and is a course of treatment to which many in the medical community aspire. Other evidence presented at trial, however, revealed that other acceptable options exist within the medical community to determine if activity is seizure-related, including direct observation of seizure activity, prescribing medication and evaluating its effectiveness. 50/236. Deciding whether to perform a particular diagnostic study is a matter of professional judgment. 49/239;
see also
Exh. 633 (1 — 19 — 93)/28 — 29.
23
The fact that Dr. Chamo-vitz did not believe that he needed a videotaped EEG to validate the existence of seizure activity supports a finding that the Center exercised professional judgment in this regard. 49/239.
24
Dr. Alvarez’s opinion appears to be attributable to the fact that he espouses a newer school of thought. But the adherence by a professional to the older of two widely-accepted schools of thought does not establish a failure to exercise acceptable professional judgment.
Finally, Dr. Alvarez opined that the Center’s provision of neurological care was not proper, and therefore deficient, because residents who experienced seizure activity continued to sustain injuries of varying magnitude. 36/78-79. Dr. Alvarez testified that physical injuries are common with epileptics because the sudden loss of muscle tone during the seizure causes the epileptic to fall or hit objects. 36/76. Dr. Alvarez stated that an institution has the responsibility to provide an individualized plan of protection and prevention for epileptics who are prone to sustain injuries as a result of seizure activity. 36/78.
To support his opinion, Dr. Alvarez again cited examples of care for individual residents. For example, he noted the care provided to Barbara K, who frequently sustained injuries as a result of seizure activity which caused her to “fall[ ] straight as a rock right on her face.” 36/80; Exh. 611-A. Dr. Alvarez testified that her seizures occurred once or twice a month, that the use of a helmet was discussed at interdisciplinary team meetings, Exh. 268a, but that there was a substantial delay in obtaining one for her. He further noted that even when a helmet was procured for her, she continued to sustain injuries. 36/81-87, Exh. 392(c).
The addressing of Barbara K’s falls by an interdisciplinary team and the obtaining of protective gear illustrate that professional judgment was exercised on her
*597
behalf.
25
The record indicates that the delay in obtaining the helmet was not due to any omission by the medical professionals at the Center, but rather was attributable to the Human Rights Committee, an independent body which must approve all restrictive devices placed on the residents. Exh. 892(a). Past efforts to use a helmet had been unsuccessful with this resident, and that factor may have contributed to the delay in its approval. Exh. 392(e), #00203661.
In addition, the continued occurrence of injuries after securing the helmet for Barbara K. does not in and of itself indicate that professional judgment has not been exercised. Instead, it indicates that a helmet may not protect a resident from all possible injuries. 49/257; 50/187-88.
Dr. Alvarez also cited the care of Ronald A. as an example of how the Center’s provision of neurological care to prevent injuries from seizure activity was deficient. Ronald A. sustained multiple cuts and bruises because of falls due to seizures, and at one point, the Pennsylvania Inspection of Care report noted Ronald’s injuries and questioned whether a helmet had been considered. 36/87-91; Exhs. 66 and 268(b). Ronald A.’s seizures were not as frequent as Barbara K.’s seizures, however
(compare
Exhs. 268a and 268b), occurring on a sporadic basis, with periods of four to five months between seizure activity. Dr. Alvarez opined that in light of the Inspection of Care report and the Center’s documentation, the Center was aware of the seizure related injuries and failed to utilize a protective helmet.
See also
Exh. 67 (Pennsylvania Inspection of Care recommending helmet tolerance in view of three uncontrolled seizures and injuries for resident Glenn A.).
26
Dr. Alvarez’ opinion that the Center’s care is constitutionally deficient, based on the Center’s alleged failure to use protective helmets, is not persuasive. As with the control of seizures through poly-pharmacy, there are tradeoffs in the use of physical restraints between protection from injury and freedom from restraint. Because helmets are a restrictive measure and constitute an infringement of a resident’s liberty interests if implemented, the right to be protected from harm due to seizure activity requires such protection as may be reasonable in light of the liberty interest in freedom irom unreasonable restraints.
See Youngberg,
457 U.S. at 316 , 102 S.Ct. at 2458 . At the Center, the final decisionmaker with regard to implementing the use of a helmet is the Human Rights Committee — an independent body that conducts an evaluation and either approves or rejects the proposed restrictive device. Exh. 93. Because the Center utilizes this additional step to insure that professional standards are followed before restraining an individual, I do not find the neurological care deficient for those instances when a helmet has not been approved, or approved as quickly as Dr. Alvarez would have liked.
The United States’ arguments with respect to this aspect of the Center’s neurological care suffer from an additional flaw. For a number of reasons, the frequency and severity of injuries sustained by the residents who have seizure disorders — disorders which obviously are difficult to control — cannot of themselves constitute sufficient evidence to establish a lack of professional judgment. The evidence showed that a protective helmet, like a football helmet, will re-
*598
spond to the impact it receives and cannot provide complete protection. 50/188. The helmet may shift and injuries may occur despite the helmet’s presence. In addition, helmets may not be able to prevent injuries that result from contact with a portion of the head not intended to be protected by the helmet.
See
Exh. 392b, # 00590535 (injury from impact with flat block held by resident at time of seizure).
Seizures by their nature are unpredictable, and injuries can occur when helmets have been removed for reasons of hygiene and for sleeping.
See
Exh. 392b, # 00001073 (seizure occurred in bathroom before bathing). All that Dr. Alvarez’ testimony established was the frequency of injuries. It did not include discussion of either the nature of the injuries or why the Center’s care for those residents failed to meet minimum professional standards.
See
36/92-94. The mere quantification of injuries, without more, does not establish the failure to exercise professional judgment.
2. PSYCHIATRIC CARE
According to the United States, the defendants’ provision of psychiatric services is constitutionally inadequate because the Center: (1) fails to provide adequate psychiatric assessments; (2) fails to provide adequate psychiatric diagnoses; (3) fails to provide adequate psychiatric treatment; and (4) fails to provide adequate monitoring of the psychiatric treatment. 84/IX. The right of an institutionalized mentally retarded person to receive adequate medical care, as acknowledged by the Supreme Court in
Youngberg,
457 U.S. at 315 , 102 S.Ct. at 2457-58 , must include provision for psychiatric care, where needed.
a.
Psychiatric Assessment Techniques
At the Center, psychiatric care is provided by a contract psychiatrist consultant, a psychology department, and the direct care staff. From 1986 to July 1993, Dr. Pauline Goldschmidt was the Center’s contract psychiatrist consultant (Exh. 616, exh. 1; 64/81), and she provided psychiatric services to the Center twice each month during two eight-hour sessions. The services were provided to residents pursuant to referrals from the primary care physicians and the interdisciplinary team. Dr. Goldschmidt’s psychiatric services consisted of psychiatric evaluations, management of psychotropic medications, and supervision of the screening for side effects such as tardive dyskinesia. Exh. 616, exh. 3; 64/80.
27
The Center employs Dr. Stratton, a psychologist, as the Director of Psychology. 62/220-21. Dr. Stratton supervises the psychological services provided to the residents by eight psychological service associates (PSAs). 62/220-1; 51/19. Six of the PSAs have master’s degrees and the remaining two have bachelor’s degrees. 37/15-16. The PSAs work Mondays through Fridays during daylight hours and are not available on evenings and weekends. 37/16. Psychological services can be obtained during off hours by contacting the professional on call. 51/20.
The PSAs have varying caseloads. Five have caseloads of forty-eight residents, two have caseloads of seventy-two residents, and one has a caseload of ninety-six residents. 37/15. Some psychological services are performed by nonpsychology staff. 51/135.
The United States contends that accepted professional practice requires the utilization of a disciplined medical approach to the provision of adequate psychiatric care. This approach entails obtaining an assessment of the resident, rendering a diagnosis, formulating a treatment plan, monitoring the treatment plan for its effectiveness, and revising it as indicated. 38/63-64. The United States asserts that the Center’s psychiatric assessments are constitutionally deficient because the Center fails to employ this disciplined medical model. According to the United States’ experts, the behavioral data and information collected by the Center is either non-existent or inadequate, and the psychiat
*599
ric consults are chaotic, disorganized, undisciplined and too infrequent. 84/IX/4-15.
Dr. Fahs, a neuropsychiatrist who specializes in the psychological care of mentally retarded individuals, testified that the Center’s psychiatric assessments are inadequate because 100% of the records he reviewed were deficient. 38/79, 85, 88. Dr. Fahs explained that a psychiatrist usually sees an individual because of a particular concern which, in a population like that of the Center, is typically labeled as a “target behavior.” In a setting such as the Center, the target behavior “presents” (ie., is manifested) as aggression or self-injurious behavior (SIB). 38/71. In addition to the target behavior, other behavioral difficulties may be present. .38/72. A proper psychiatric assessment involves the collection of information from an interdisciplinary team, including doctors, staff, and other personnel, in an effort to gain a thorough picture of the resident. 38/71. The team should gather information regarding the resident’s symptoms, his behavior and his functioning with others. 49/144-45. Such information should detail the frequency, intensity and duration of the target behavior, as well as any other behavioral difficulties. 38/73. Objective information of this nature is essential for an assessment of a mentally retarded individual, since subjective symptoms may not be communicated effectively. 49/145. An assessment should also include information regarding the resident’s past psychiatric history, past medication history, as well as the individual’s past and present medical history. Such longitudinal data may facilitate the approach to treatment. 38/74. Dr. Fahs claimed that these components of a psychiatric assessment are universally accepted in the psychiatric profession. 38/75.
Dr. Fahs testified that the Center’s assessments are inadequate for a number of reasons. 38/75. First, Dr. Fahs found the assessments deficient in that the Center collects the information for a psychiatric assessment on a universal data collection sheet (UDCS). 38/76. The UDCS is the data collection tool used to chart all behaviors for all of the residents. 38/76. It is designed to collect a single type of interval data; that is, it tabulates the frequency of the target behavior by noting whether the target behavior occurred during a particular hour interval. The UDCS does not necessarily denote the number of times the target behavior occurs during that hour interval, nor does the UDCS account for the intensity or duration of the target behavior. 38/76. Additionally, the UDCS is geared to deal with only one target behavior. As a result, if there is more than one target behavior, or if other behavioral difficulties are present, it is difficult to distinguish this on the UDCS. 38/77.
Dr. Fahs next identified deficiencies with the psychiatric consultations that allegedly contribute to the overall inadequacy of the assessments. He observed some of the psychiatric assessments performed by Dr. Gold-schmidt, and testified that the assessments were chaotic, disorganized and totally lacking in the conveyance of relevant information to the psychiatrist. 38/77. In particular, Dr. Fahs stated that behavioral information that was in the chart was not conveyed to the psychiatrist. 38/78. In addition, according to Dr. Fahs, Dr. Goldschmidt had related that she did not feel that she had sufficient time to complete a psychiatric assessment. 38/82.
Dr. Lubetsky, a psychiatrist and Director of the John Merck Multiple Disabilities Program, testified as one of the Center’s expert witnesses in this area. He also had observed the psychiatric consultations of Dr. Gold-schmidt. According to Dr. Lubetsky, each of Dr. Goldschmidt’s consultations was performed at the resident’s living unit, in the presence of the resident’s psychologist, QMRP, primary care physician (if possible), and a member of the direct care staff. Often these consultations were attended by the Center’s pharmacist. 49/109-10. Dr. Lubet-sky testified further that Dr. Goldschmidt then obtained information from the staff members present concerning the resident’s behaviors, daily activities, and medications. Dr. Lubetsky noted that if Dr. Goldschmidt did not receive enough information, she would ask questions. 49/112-13. In light of these observations, Dr. Lubetsky concluded that the consultations were adequate and satisfied professional standards.
*600
Dr. Lubetsky agreed with Dr. Fahs that there was room for improvement in two areas. First, he opined that completing the consultation form before the consultation would improve the process. However, he did not believe that this flaw impaired Dr. Gold-schmidt’s ability to make a professional judgment. 49/114. Second, Dr. Lubetsky stated that documentation of the psychiatrist’s “thought processes” during the consultation should be improved. According to Dr. Lu-betsky, the events that occurred at the consult were not well-summarized in the chart. Nevertheless, Dr. Lubetsky concluded that this deficiency did not impair Dr. Gold-schmidt’s clinical treatment or preclude the exercise of professional judgment, and that Dr. Goldschmidt’s reliance on information orally-conveyed at the consultation was not an impediment to the exercise of her professional judgment. He observed that psychiatrists in private practice often rely entirely on such information to render a professional judgment in the treatment of their clients. 49/114-15, 118.
Dr. Lubetsky’s observations were confirmed by Dr. Hauser, another psychiatrist, who explained that the Center utilized an interdisciplinary team approach in providing psychiatric care. 50/27. Like Dr. Lubetsky, Dr. Hauser found Dr. Goldschmidt’s written documentation of her consults to be sparse, and provided the Center with a form that he had created for purposes of documenting his own psychiatric consultations. The Center has since adopted the form and incorporated it into the psychiatric consultations. 50/58-60. Dr. Hauser noted that by providing his own form, he was not implying that the Center’s care was deficient in this regard, but only that it was an area that could be improved. 50/60.
Dr. Hauser also evaluated the collection of data regarding a resident’s target behaviors. He noted that the Center collects some hard data, and that this data is used at the consultations. 50/65. According to Dr. Hauser, hard data is not an essential resource for the psychiatrist because subjective data from the resident and the staff also are obtained at the consultation. Dr. Hauser testified that reliance on subjective data is consistent with acceptable professional standards, because most psychiatrists rarely have hard data available to them. 50/64. Dr. Hauser une-quivocably testified that professional judgment can be exercised without hard data to formulate an appropriate treatment plan, and that Dr. Goldschmidt received sufficient information to enable her to exercise professional judgment. 50/68, 68.
According to Dr. Hauser, the characterization of Dr. Goldschmidt’s consultations as chaotic and disorganized probably resulted from the fact that the resident himself usually was present at the consult. Dr. Hauser, however, did not believe that the consultations were chaotic or disorganized. He noted that the presence of the resident at a consultation may, in fact, be an effective means of understanding the residents’ behaviors. 50/106. Dr. Hauser conceded that the rooms where the consultations occurred were not ideally suited for the procedures, and that staff seemed to be always coming and going, much like consultations he has completed in group homes. 50/107.
Despite these sub-optimal conditions, Dr. Hauser found that Dr. Goldschmidt was able to gather and process data, talk with staff about treatment, and render a recommendation. 50/68-69, 108. He further noted that in his discussion with Dr. Goldschmidt, she reported that she did have an adequate amount of time in which to perform her consultations.
28
50/68.
Dr. Lubetsky’s and Dr. Hauser’s opinions that the psychiatric assessments at the Center meet acceptable minimum profes
*601
sional standards are persuasive,
29
I find that accepted professional practice includes use of assessments completed by an interdisciplinary team, collecting both objective data and subjective data. Because psychiatric assessments at the Center are consistent with accepted professional practice, they evidence the exercise of professional judgment, and do not violate the Constitution. 50/27.
b.
Differential Diagnoses
Dr. Fahs also testified that the Center fails to provide adequate psychiatric diagnoses for its residents because it does not properly formulate “differential diagnoses” for the residents. A differential diagnosis is the result of an evaluation which considers information obtained in the assessment phase to identify a resident’s possible disorders. 38/160-61. After identifying the possible disorders, a practitioner then considers which particular disorder is most likely that resident’s actual diagnosis. 50/71; 49/147. That is, the practitioner gives full consideration to the alternative hypotheses and selects the most likely cause for the resident’s problem. 50/71.
The utilization of the differential diagnosis is an accepted practice in psychiatry. 38/85; 50/71. Initially, the process is “mental” in nature. 50/71. After completion of this thought process, however, standard professional practice requires some documentation in support of the diagnosis. 50/71. The United States asserts that the Center’s care is deficient in this regard because the records do not contain documentation concerning the alternative diagnoses and the basis for the selection of the working diagnosis. 38/85. Dr. Fahs testified that Dr. Gold-schmidt’s documentation was too succinct, and that it failed to explain why alternative diagnoses were not applicable and/or why changes were made. Instead, Dr. Fahs found that considerations of the differential diagnostic possibilities were scattered throughout the chart. 38/85-87. The United States points out that Pennsylvania’s Inspection of Care Survey also found this area deficient in its October 21, 1991 survey. 38/90; Exh. 67/2-B.
Dr. Fahs contends that the Center’s failure to employ the differential diagnosis method is evident from the fact that diagnoses are added or changed after treatment already has been initiated. 38/87. According to Dr. Fahs, the diagnosis normally precedes the treatment selection, and a faulty diagnosis results in a high probability that an improper treatment will be selected. 38/87, 89.
Dr. Fahs cited the diagnoses for several residents as examples of diagnoses which substantially depart from accepted professional practice. He pointed to the diagnosis of schizophrenia for one profoundly retarded resident who had self injurious behavior (SIB) and aggressive behavior, and noted that virtually universal agreement exists within the medical community that it is impossible to make a diagnosis of schizophrenia in a profoundly retarded person. 38/102. Dr. Fahs found no support for the diagnosis of schizophrenia in that resident’s record except for his SIB and aggression toward others. 38/103. Another resident, Gary K., “seemed to be depressed,” but had only a “so-called” diagnosis of aggressive behavior. 38/107. Dr. Fahs stated that aggression is not a diagnosis, and that the diagnosis of depression had never been articulated in the resident’s chart. 38/107-08.
The case of Darren W. also was cited as an example of a disorganized diagnostic process. Darren W. was being treated for akathisia
30
with Inderal. The medication was abruptly discontinued, however, after a diagnosis of
*602
asthma was made. Dr. Fahs criticized this diagnosis because asthma typically is a childhood disorder. 38/121-28. Darren W.’s condition deteriorated after this abrupt change, and he was then diagnosed with obsessive compulsive disorder (OCD). Dr. Fahs claimed that there was no supporting evidence for the OCD diagnosis. 38/128. He further testified that no supporting evidence existed for the diagnosis of OCD in any of the other residents receiving Anafranil, a medication used to treat OCD. 38/129.
Dr. Lubetsky explained in reply that psychiatric diagnosis of the developmentally disabled is very difficult. 49/119. Indeed, diagnosis of psychiatric conditions is difficult in a population that is
not
developmentally disabled.
See Heller v. Doe,
— U.S. -, -, 113 S.Ct. 2637, 2644 , 125 L.Ed.2d 257 (1993). Dr. Lubetsky explained:
It’s very difficult to use the DSM-3, which is a guideline for making psychiatric diagnoses; ... it is very difficult to use [the DSM-3] in the developmentally disabled population, mainly because of the cognitive impairment, the lower functioning I.Q.s, and the nonverbal nature of many of the clients; so it is very difficult to make a diagnosis.
The best attempt is to utilize those guidelines and see if you can come up with a differential diagnosis which is a variety of considerations. Many times the best you can come up with is looking at the symptoms and attempting to cluster the symptoms to give you some guide to make a choice about medication.
In addition, you’re always working through the diagnostic process. As you are seeing clients over years, your opinion may change about their diagnosis depending on the pattern of their symptoms, the pattern of behaviors. In response to medication. In general, psychiatry — what you’re taught is to try to make the best diagnosis you can and try not to make your diagnosis based on the response to a medication.
But I think most physicians will also agree that they do look at the response to medication to help in re-thinking whether a diagnosis was accurate or whether there’s another diagnosis to consider.
49/119-20.
Taken together, all of the experts’ testimony of Dr. Lubetsky and Dr. Hauser provides strong evidence for the proposition that rendering a differential diagnosis for the mentally retarded is more of an art than a science. Against this backdrop, Dr. Fahs’ specific cases of allegedly flawed differential diagnoses are, at worst, indicative of erroneous psychiatric evaluations, not constitutional violations.
Dr. Hauser explained that it is an accepted national standard in psychiatry that a diagnosis follow the classifications of the American Psychiatric Association’s
Diagnostic and Statistical Manual,
3rd edition revised, DSM-3-R. 50/36. Unfortunately, the DSM-3-R was not designed for specific use with developmentally disabled persons, who often are nonverbal. 50/37. Nevertheless, Dr. Hauser found that pressure exists at the Center to use the DSM-3-R coded diagnoses for purposes of “inspection surveys” which are conducted on a regular basis by the Pennsylvania Department of Welfare and other agencies for purposes of accreditation and licensure (Medicare, Medicaid, etc.). 50/40. The DSM-3-R is the most current DSM, and certain diagnostic terms used in earlier editions of the DSM have become outdated. This outdated nomenclature, however, may continue to be used for certain residents. 50/41.
The allegedly erroneous diagnosis of the resident with schizophrenia, though outdated according to Hauser, was generally consistent with the first
Diagnostic and Statistical Manual
and the liberal application of the diagnosis of schizophrenia for anyone manifesting a psychosis. 50/89-90. That is, the diagnosis is “a fingering artifact of the historical context” of diagnosing patients. 50/92. Dr. Hauser also observed that the persistence in the diagnosis of schizophrenia may be due to the fact that DSM-3-R does not account for persons who no longer can be diagnosed as schizophrenic because of their limited cognitive functioning. 50/90. In any event, Dr. Hauser was not troubled by the persistence of this diagnosis at the Center,
*603
because the treatment for schizophrenia was appropriate treatment for that resident, who under DSM-3-R would be diagnosed with atypical psychosis. 50/91. The use of the outdated nomenclature, though perhaps not technically accurate, did not detrimentally affect the residents’ treatment.
In contrast to Dr. Fahs’ finding, Dr. Lubetsky testified that Gary K.’s chart
did
include the diagnosis of depression. 49/124. Nevertheless, even if the chart did not include that diagnosis, the documentation of the resident’s behavior was indicative of depression, and he was treated with an antidepressant in a low dose in an effort not to precipitate seizure activity. 49/124-5; 38/189. This course was consistent with Dr. Lubetsky’s observation that, at times, the best that one can do is look at the symptoms, and attempt to “cluster” the symptoms in order to find some guide to selecting a medication to treat that individual. Again, the Center’s
treatment
of the resident was consistent with acceptable psychiatric practice, and the constitutional standard is concerned with the care provided to the residents, not conformity of nomenclature to the latest APA revision of the DSM.
According to Dr. Hauser, Darren W.’s asthma diagnosis and the discontinuation of the medication Inderal was not improper. Typically, asthma is considered a childhood ailment, but the diagnosis actually is consistent with the diagnosis of a bronchospastic condition, regardless of one’s age. As Dr. Hauser explained, Inderal may have the side effect of causing bronchospasms, which would exacerbate an individual’s asthmatic or other bronchospastic condition. As a result, as Dr. Fahs conceded on cross-examination (38/141-42), Inderal should be discontinued to avoid precipitating any bronchospasms, regardless of the risk of any withdrawal reaction that may occur. 50/108-11.
Dr. Hauser also testified that he did not find the diagnosis of OCD for Darren W. or other residents troublesome. While Dr. Fahs claimed that too many residents (although he could not provide the exact number) had this diagnosis (38/165-66), Dr. Hau-ser explained that one of the exciting developments in the field of psychiatry is the increasing recognition of OCD as a disorder affecting millions of individuals. 50/112. Dr. Hauser then explained that if the disorder OCD is widespread in the general population, it is logical that this disorder will be more prevalent among mentally retarded individuals. 50/112-13. Consequently, when Dr. Hauser sees a mentally retarded patient with “ritualistic behavior”
(i.e.,
behavior that occurs over and over again), he is willing to try treatment with a drug used for OCD. 50/114.
31
I find that it is within acceptable professional practice for a complete differential diagnosis to be constructed from documentation found throughout a resident’s chart. This, in fact, is what Dr. Fahs found: “a piece here in the record, a piece here in the record, a piece here in the record ...” 38/85-6. Moreover, a correct differential diagnosis may be dynamic, initially eluding the practitioner and only becoming clear as time passes and additional data is available to consider. For this reason, treatment may have to be geared to the symptoms presented, as opposed to treatment of a diagnosis consistent with the DSM-3-R.
Documentation alone cannot establish that there is a deficiency that reaches constitutional dimensions. The focus must be on whether professional judgment was exercised, that is, whether the practitioner has considered the options and has made a differential psychiatric diagnosis for a resident that is in keeping with minimal professional standards. I find the Center meets this requirement.
I credit the testimony of Dr. Lubetsky and agree that the thought processes in this area of care at the Center are evident from the live consultations, although those consultations could often be better documented. 49/114. As Dr. Lubetsky pointed out, the
*604
mini-staffing notes in the charts detail why changes are made, as well as the status of the residents’ care. 49/115. Accordingly, I find that the live consultations and the treatment process itself do not fall below accepted professional standards.
32
While I agree that the Center’s documentation of the differential diagnosis can and should be improved, the problems with documentation do not prohibit the exercise of professional judgment.
c.
Psychiatric Treatment
The United States alleges that the Center fails to provide adequate psychiatric
treatment
in these respects: (1) the decision-making process for treatment is inadequate because different treatment options are inadequately considered and there is a poor coordination of treatment efforts; (2) inappropriate treatment selection unnecessarily exposes residents to the risks of drug side effects and unnecessary chemical restraint; and (3) the Center fails to provide adequate and appropriate behavioral programs at the treatment stage.
See
83/TX-22-29.
The United States relies heavily upon Dr. Fahs’ testimony in support of its first and third contentions.
33
Dr. Fahs testified that treatment efforts include behavioral treatment, drug therapy, or manipulation of an individual’s social environment. More than one treatment may be appropriate at any particular time. 38/91. Thus, consideration of the available treatment modalities should result in the selection of the “treatment which has the best benefit to risk ratio.” 38/91. Ideally, treatment changes should not coincide with other changes in a resident’s environment, medication regimen or behavior programming. 38/105-06.
Dr. Fahs claimed that some of the Center’s documentation gave the illusion that different treatment options were weighed, but he found that, generally, this was not the case. 38/92-93. According to Dr. Fahs, behavioral programs were not considered, and drug changes were not coordinated with program changes, and vice versa. 38/93. Dr. Fahs testified that, instead of careful consideration of treatment options, the Center relied on the diagnosis as justifying the treatment. 38/93. He further believed that the residents responded only by luck, and that they would continue to suffer from behavioral difficulties. 3S/93.
34
Dr. Fahs, Dr. Hauser and Dr. Lubetsky all agreed that non-drug treatment should be provided together with medication in treating psychiatric impairments. 38/113; 50/46; 49/148-49. Dr. Fahs explained that non-drug treatments should be selected before drug treatment if the benefit from each is equal because they do not pose the risk of side effects. 38/92, 169. Dr. Hauser agreed that the premature initiation of medication is a red flag in the field of psychiatry. 50/46.
I find that Dr. Hauser’s testimony about trends in treatment at the Center to be credible evidence of acceptable professional judgment in psychiatric treatment. Dr. Hau-ser testified that the Center was: (1) reducing the number of antipsychotic medications prescribed, as well as reducing the dosage when used, 50/24; (2) administering only those medications which are necessary and avoiding the administration of multiple psychotropic medications, 50/33; (3) prescribing medications in concordance with the diagnosis, 50/36; (4) prescribing alternative medications to treat psychiatric manifestations, 50/26; (5) decreasing the restrictiveness of the intervention used to treat psychiatric impairments, 50/27; and (6) resorting to an interdisciplinary team process to provide
*605
psychiatric care, 50/27.
35
The exercise of professional judgment in the selection of the proper treatment for a resident “requires thinking” about the modalities of treatment, and administering treatment that meets minimum professional standards. 38/91. The Center meets this requirement. Its weakness is its documentation of the process, a weakness that is not in dispute. But, even in the face of this shortcoming, the Center still provides psychiatric care that meets minimum professional standards.
36
As noted above, the United States also contends that inappropriate treatment selection unnecessarily exposes the Center’s residents to the risks of drug side effects. Dr. Fahs testified that accepted professional standards mandate that prescriptions for an-tipsychotic medications should be avoided if they are not indicated. 38/65. Dr. Hauser agreed, and noted that the current trend in the field of psychiatry is to avoid unnecessary antipsychotic medication in order to guard against the development of side effects such as tardive dyskinesia, neuroleptic malignant syndrome, and extrapyramidal syndrome. 50/24.
While the United States contends that residents are unnecessarily exposed to side effects such as neuroleptic malignant syndrome, it fails to cite one example of a resident who developed this syndrome. On the other hand, tardive dyskinesia (TD) is known to afflict some residents at the Center, but the record in this case contains no evidence to suggest that residents actually in need of medication who have this condition became afflicted as the result of the
unnecessary
administration of antipsychotic medication. Instead, the United States’ evidence on this issue pertains solely to the Center’s alleged inadequacy in screening to detect this condition, a matter discussed infra,
37
Dr. Fahs asserts that a determination regarding the adequacy of the Center’s psychiatric care cannot be based on just the raw percentage of residents on psychotropic drugs. Instead, he believes that the “only way the care could be determined is by looking at each individual, each individual client.” 38/135. Dr. Fahs further testified that the Center’s Behavioral Intervention Committee (BIC) and the 30-day review, elaborate “convoluted mechanisms” established to guard against inappropriate psychotropic drug use, fail to safeguard the residents. These procedural safeguards, according to Dr. Fahs, actually were just rote exercises that entailed minimal review of a resident’s psychological status and the need for chemical treatment. 38/135-37.
Although Dr. Fahs rejected the relevance of the Center’s raw percentage of residents on psychotropic medications, I do not. Dr. Hauser testified that percentages are “just
*606
numbers” which can be misused or taken out of context, but he still believed that there is “some usefulness for looking at frequencies of use of medication or the breakdown of categories of medication.” 50/119. The percentages can serve as “red flags” indicating that something is wrong. 50/120-21. Dr. Hauser related how he initially counted the number of residents on antipsyehotics and antidepressants in order to determine whether the use of these drugs at the Center was “in the ballpark” of what is reported for similar facilities. One of the sources he used was a book authored by Dr. Fahs. 50/120. Dr. Hauser concluded that the overall percentages were consistent with medication management in similar populations. 50/121.
Dr. Lubetsky, agreeing with Dr. Hauser, found that the Center had a “rough average of twenty-five percent of clients on psychotropics,” 49/127, and that this was within the broad range of twenty-five to forty percent use of psychotropics reported in the
American Journal on Mental Retardation.
In addition, Dr. Lubetsky reviewed individual cases and concluded that the Center’s use of psychotropic medications was within accepted professional practice. 49/128. Based upon my review of all of this evidence, I agree with the Commonwealth that its use of psychotropic medications meets constitutional minimum standards.
Finally, the United States argues that the Center fails to adequately monitor the psychiatric treatment provided. Dr. Fahs described this “monitoring” component of the medical approach as an objective weighing of the benefit the person is receiving from the treatment versus the impact of any side effects — or, stated another way, “monitoring” entails an evaluation of whether the drug did what it was prescribed to do, and whether this result can be proved. 38/99. If monitoring demonstrates that the drug did not benefit the resident, then the treatment should be changed. 49/153. Dr. Fahs testified that the Center’s monitoring was inadequate in 100% of the cases he reviewed. 38/101.
The record at trial established that the medical community places great emphasis on monitoring the effects of antipsychotic medications to detect the development of tardive dyskinesia (TD), an irreversible side effect of certain antipsychotic medications. 50/34. TD is a red flag — -it is an area closely scrutinized by the medical community, as well as surveyors, in an effort to reduce its occurrence. 50/34. As a result, a tracking form (the AIMS form
38
) has been developed by the medical community to screen for TD.
Dr. Fahs opined that the Center’s monitoring efforts in general were inadequate, and he supported his opinion by specifically referencing the Center’s monitoring efforts with regard to TD. Dr. Fahs claimed that the Center had a policy in place requiring the AIMS screening, but he believed that the Center did not engage in a regular, consistent review for side effects, including TD. 38/100.
Dr. Fahs’ testimony also addressed the alleged inadequacy of the Center’s monitoring efforts with respect to chemical restraints. Dr. Fahs defined chemical restraints somewhat loosely as including both the emergency sedation of a resident as well as the administration of medication without any indication of its efficacy. 38/94-95. Dr. Fahs concluded that the emergency chemical restraints at the Center were adequate, but that the Center routinely administered medication that might not be helping the residents, and that this practice resulted in an unnecessary “chemical restraint.” 38/95.
In response to Dr. Fahs, Dr. Lubetsky explained that the AIMS tracking form actually was utilized and could be found in many of the charts. 49/111, 192. Dr. Lubetsky’s observation is corroborated by the Inspection of Care Survey for August 1992, which noted an AIMs form in James R.’s chart. Exh. 6A8D. The evidence also demonstrated that Dr. Goldschmidt consistently made an effort to reduce the overall use of antipsychotic medication by either refusing to prescribe the medication for a resident or reducing the
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dosage for a resident who had previously been prescribed the medication. 50/25; Exh. 616\53, 61.
The presence of TD in residents, some of whom may have developed TD before the medical profession began screening and prevention measures, does not of itself indicate that the Center has failed to exercise professional judgment in monitoring the usage of antipsychotic medications. To the contrary, the record evidence indicates that when Dr. Goldschmidt began treating the Center’s residents in 1986, she noticed that a number of individuals already had TD as a result of the long-term administration of an-tipsychotics. Exh. 616\53, 102. As a result, Dr. Goldschmidt insisted that the Center monitor residents for this very condition in an attempt to avoid the development and/or exacerbation of side effects. Some residents continued to receive antipsychotics because the benefit derived outweighed the detriment of discontinuing the medication. 50/35. At least since 1986, professional judgment has been exercised in monitoring for TD.
Dr. Hauser described the emergency sedation aspect of chemical restraint, and explained that “chemical restraint” may also be found when medication is chronically used to restrain an individual. Signs of this type of chemical restraint are use of high doses of antipsychotic medications which cause stiffness, rigidity, and a blank facial expression in residents. 50/122. Dr. Hauser testified that he did not observe
any
chemical restraint of this nature at the Center.
I find Dr. Hauser’s testimony persuasive in determining whether the Center meets the minimum standard of professional judgment in avoiding unnecessary chemical restraints that would result in stiffness, rigidity, and the constraining of one’s movement.
See Sabo v. O’Bannon,
586 F.Supp. 1132, 1140 (E.D.Pa.1984) (“Because the use of ‘soft’ restraints was found to implicate a liberty interest in
Youngberg ,
it can scarcely be doubted that the use of drugs in order to restrain a patient must activate a similar interest.”). As Dr. Hauser explained, the Center has consistently endeavored to reduce the dosage of antipsychotics and thereby avoid unnecessary chemical restraints.
In summary, the psychiatric care provided satisfies constitutional requirements. The Center’s weak point is its documentation, but this deficiency does not preclude the exercise of professional judgment. The assessment and treatment routines established at the Center are not “substantial departures” from accepted professional standards.
3. GASTROESOPHAGEAL REFLUX AND ASPIRATION
Dr. Sulkes, one of the United States’ experts, testified that the Center fails to provide appropriate medical care to residents with gastroesophageal reflux (GER) and/or who are at risk of aspiration, because the Center fails both to identify the residents who have GER and/or are at risk of aspirating, and fails to provide a proper medical “work-up” and treatment of the residents.
39
Aspiration is the “inspiratory sucking into the airways
[i.e.
lungs] of fluid or [a] foreign body....”
Stedman’s Medical Dictionary
143 (25th ed. 1990). GER is the escape of the stomach contents into the esophagus, 41/88, a condition which afflicts approximately 10-15% of developmentally disabled children and adults. Crocker, Allen C., and Rubin, I. Leslie,
Developmental Disabilities: Delivery of Medical Care for Children and Adults
178-79 (1989). Individuals with GER are at risk of aspirating because the stomach contents may travel backward from the esophagus into the pharynx and enter the trachea and lungs, 41/88, which predisposes the person to developing pneumonia. Reflux into the esophagus also causes discomfort because the stomach contents are normally very acidic, and over time, may erode the mucosa of the esophagus and precipitate bleeding. 41/89-90.
The United States contends that in “several cases, individuals had documented reflux and nevertheless were continuing to suffer bouts of aspiration pneumonia.” 84/X-10,
citing
34/107. The United States asserts that most of the residents reviewed
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by Dr. Sulkes died at some point from 1988 to 1992. The occurrence of aspiration pneumonia, or even deaths without evidence that it was the result of medical treatment which substantially deviated from accepted professional practice, however tragic a loss, does not compel a finding that the constitution was violated.
Dr. Sulkes reviewed the care of Margaret D., who died in January 1992. Dr. Sulkes testified that her condition of reflux was known since at least 1979. 41/114. Treatment in 1991 included prescriptions of anti-reflux medication and iron for anemia. Margaret D. also received postural drainage and percussion on a regular basis. Despite these treatments, seven months later, she developed problems with mucous and choking after eating. Margaret D.’s physician noted that she experienced the excess mucous and choking only after eating, and he questioned whether she had an allergic rhinitis. He started treatment with an antihistamine, but did not order any further evaluation of the reflux. 41/115.
Two months later, Margaret D. was hospitalized for aspiration pneumonia. Her sixty-day nursing note after this hospitalization indicated that the same treatment was to continue. Tussi-organidin, an expectorant, was added to her medication regime. Exh. 331aa, # 00523176. Antibiotics were instituted when it was discovered that her mucous had pus in it. Thereafter, Margaret D. lost weight, and she continued to produce large amounts of thick mucous. At some point, the Center initiated manual suctioning of the mucous secretions to aid Margaret D.’s breathing. Exh. 331AA. No other intervention was initiated despite persistent documentation of chronic congestion and coughing. 41/119. In January 1992, during treatment for postural drainage, Margaret D. died. 41/120. According to Dr. Sulkes, there was a “lack of close monitoring and lack of a sufficiently aggressive work up early on, diagnostically, which might have led to some medical interventions, that might have prevented all of this ...” 41/120.
The record at trial revealed, however, that the Center exercised professional judgment consistent with accepted medical practice in the treatment of Margaret D. The Center staff documented her persistent trouble with coughing and mucous production, monitored her condition, and treated her with anti-reflux medications. 34/82.
Steven S. died in May 1991 due to complications resulting from GER. Dr. Sulkes opined that Steven S. needed aggressive management of GER early on and did not receive it. He further testified that, in his opinion, Steven S. entered a “pipeline that ... carried him inexorably on to his death. All the way along, interventions might be available, but nobody thinks about them until it’s way too late for them to do any good.” 41/121.
The record reveals that the Center was aware of Steven S.’s GER since at least 1989.
Id.
In November of 1990, a gastrostomy tube was inserted into his stomach. This procedure had little effect, according to Dr. Sulkes, and emesis was discovered in Steven S.’s mouth as early as November 13, 1990. In December of 1990, blood was discovered in the emesis. Later that month, Steven S. was hospitalized for pneumonia. 41/122.
Dr. Sulkes lamented that this resident could have received fundoplication surgery up to two years before his death, but that he never did. 41/123. Fundoplication, using a cuff of the stomach muscle to wrap around the bottom of the esophagus as support for a weak gastroesophageal sphincter, could have prevented the escape of stomach contents into the esophagus when the stomach muscle contracted, 34/69, but the mortality rate for this surgery approaches fifty percent. 34/71. Fundoplication is major surgery, however, and the decision whether to perform this procedure is largely dependent upon the individual’s health. The physician must assess the risks of additional surgery against the possible medical benefits to be obtained. 34/69.
Steven S.’s physicians were aware of his condition and treated it by surgically inserting a gastrostomy tube. Unfortunately, Steven S.’s gastrostomy tube did not remedy the problem. Whether to proceed with fundoplication surgery was highly dependent upon Steven S.’ individual medical condition,
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and was a matter to be resolved pursuant to the sound discretion of the professional. 81/157. Experts in the field of gastroenterol-ogy for mentally retarded persons remain divided over the benefits of gastrostomy alone, as opposed to gastrostomy coupled with fundoplication surgeries.
See
Exh. HEL, Bui, Hum D.,
et al., Does Gastrostomy and Fundoplication Prevent Aspiration Pneumonia in Mentally Retarded Persons,
94 American Journal on Mental Retardation 16-19 (1989). Accordingly, I find that the Center’s decision not to perform fundoplication surgery on Steven S. does not fall outside the realm of acceptable medical practice.
Keith T. also had GER and died. Keith T. had spastic quadriparesis, profound mental retardation and a history of problems -with aspiration. 41/125-26. Dr. Sulkes noted that Keith T. had respiratory problems dating back to a respiratory arrest in 1986, and had been hospitalized repeatedly for aspiration pneumonia. In April of 1991, documentation indicated that Keith T. had reflux when he was sleeping which precipitated bronchospasms. One of his anti-reflux medications was increased at that time, 41/126, and he was continued on antacids, 41/127. The Center’s care for Keith T.’s GER included well-recognized treatments in this field: anti-reflux medications, antacids, and even fundoplication surgery. 34/77, 82-83. Once fundoplication surgery is performed, positioning therapy and medications remain the only viable treatment options for such an individual.
See
81/155.
Dr. Sulkes testified that at least some of Keith T.’s hospitalizations, as well as his death, were preventable. 41/128. Dr. Sulkes found it problematic that Keith T. had never had an evaluation for feeding problems, never had an evaluation to determine whether he had reflux, and had no records showing consults with a gastroenterologist. 41/126.
In rendering his opin

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2597226. Public record. Not legal advice.