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| State attorneys asked the judge to halt all further proceedings because Covid-19 vaccines could render the lawsuit moot. Photograph: David Odisho/EPA |
by Kelly Davis
In documents filed earlier this week in federal court, attorneys from the advocacy organization Disability Rights California and the private law firm Covington & Burling asked the judge Jesus G Bernal to order the release or transfer of half of the patients at Patton state hospital.
Patton is located in San Bernardino, east of Los Angeles. With 1,527 beds, it is one of the largest psychiatric hospitals in the US. The majority of people confined to the facility have been accused of a crime but found by a judge to be incompetent to stand trial or not guilty by reason of insanity.
Since May, at least 335 Patton patients and 327 staff have tested positive for Covid-19; 10 patients have died, according to court documents and the Department of State Hospitals (DSH) patient tracker.
The attorneys’ emergency request is part of a class-action lawsuit filed in August on behalf of four men committed to Patton. Prior to the lawsuit, several organizations, including the California Public Defenders Association and the ACLU of Northern California, urged the department of state hospitals to evaluate patients for release or transfer to facilitate social distancing.
Some patients “no longer need treatment in a secure and locked facility”, the organizations said in a letter to Stephanie Clendenin, the head of DSH. “Many have family or friends to support them in the community if released.”
The letter echoes pleas from medical experts, who have said since the start of the pandemic that the only way to prevent Covid-19 outbreaks in crowded correctional facilities is to significantly reduce the population.
Anne Hadreas, an attorney with Disability Rights California, said she and her colleagues met several times with DSH officials, but were unable to reach an agreement over how to reduce the hospital’s population. They filed the emergency request after learning of a new outbreak at Patton.
“Based on the staggeringly high numbers we couldn’t wait any longer,” she said.
Since mid-November, more than 150 Patton detainees have tested positive for Covid-19, including all four of the plaintiffs named in the lawsuit. Eleven people have been hospitalized with severe cases of the virus.
“Defendants have failed to conduct an adequate systematic review of high-risk patients in order to identify who can be safely discharged to a less dangerous setting; facilitate the release or transfer of such high-risk patients to safer, non- or less-congregate settings; or otherwise reduce the patient population to allow for anything close to adequate social distancing,” the new court filing says.
Sworn statements submitted by patients as part of the lawsuit describe an environment where social distancing is impossible. Patients sleep as many as five to a room, share bathrooms, eat in the same area, use the same telephones and gather in the same common area. Patients also described Patton as unsanitary and lacking ventilation.
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| The USC medical center. California’s hospitals have nearly run out of ICU beds for Covid-19 patients amid a surge in cases. Photograph: Damian Dovarganes/AP |
Charles Gluck, one of the lawsuit’s plaintiffs, told the Guardian that staff never explained the threat the virus posed. Gluck has diabetes, heart disease and high blood pressure; he learned from watching television that his health conditions put him at risk for complications if he contracted Covid-19.
“Nobody warned us,” he said.
Gluck recently tested positive for Covid-19. Over the phone, he sounded run down. He said he had a fever and pain in his kidneys and hadn’t been able to sleep.
Gluck’s roommate, Ricardo Tapia, also contracted the virus. Tapia said more than 20 people in their unit fell ill after a man who was showing symptoms was moved to the unit at the beginning of December. The man was supposed to remain in his room, but he used the unit’s communal restroom and would often open his door.
Tapia and Gluck were both moved to an isolation unit with large dorm-style rooms with up to a dozen other patients. Both men said there is little to do besides watching television.
“There’s no treatment here,” Tapia said, referring to therapeutic programs that have been put on hold since March.
A spokesman for DSH said he couldn’t discuss specific allegations in the lawsuit, but said that “DSH continues to take all actions necessary to protect its patients and staff from Covid-19, following guidance from the California Department of Public Health, the Centers for Disease Control and Prevention, and other state and local partners.”
In their response to the plaintiffs’ emergency request, state attorneys asked judge Bernal to halt all further proceedings because Covid-19 vaccines could render the lawsuit moot.
“DSH anticipates that a sufficient number of doses of an approved Covid-19 vaccine will be made available for inoculation of more than half of DSH healthcare staff in the highest level priority category in early January 2021,” the attorneys argued.
Hadreas, the lead attorney on the emergency filing, said that waiting until January, when only a portion of staff might be inoculated, isn’t an option.
“It will not help the people who are getting sick right now, and those who will get sick over the next weeks,” she said. “The fact that at some point in the future conditions may improve does not change the fact that conditions are extremely dangerous now.”
On 7 December, DSH did move 43 women from Patton to a “surge capacity” facility in Norwalk, a Los Angeles suburb. In a signed declaration, Peter Chin-Hong, an infectious disease specialist at the University of California, San Francisco and expert witness, called the move “necessary” yet inadequate. Chin-Hong chastised state officials for waiting until “an untenable number of patients have tested positive at DSH-Patton”, instead of proactively finding alternative facilities.
Chin-Hong was critical of the dorm-style isolation units, noting that a person with Covid-19 can acquire a more serious infection by being exposed to others with the virus. There is also a risk for reinfection.
“It is important to note that immunity may be short-lived, setting the stage for potential reinfection even after recovery,” he wrote.
Hadreas acknowledged that moving people from Patton will require careful assessment.
“It’s really not a one-size-fits-all approach, and that’s not what we’re asking for,” she said, adding, “The only way to make it a safer environment is for there to be fewer people for social distancing to be possible.”
A hearing on the emergency order is scheduled for 22 December.
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