Opinion
I.D. No. 0001019333
Submitted: July 8, 2003
Decided: August 1, 2003 Date of Opinion: August 29, 2003
Upon Defendant's Motion for Reduction of Sentence. PK00-02-0023, UNLAW.INTER.3RD(F), LIO: UNLAW.SEX.INT.1, PK00-02-0024, UNLAW.INTER.3RD(F), LIO: UNLAW.SEX.INT.1, PK00-02-0035, UNLAW SEX CON.3(M), LIO: UNLAW SEX CON 2, PK00-02-0036, UNLAW SEX COND.3(M), LIO: UNLAW SEX CON 2
Granted in part; Denied in part.
Stuart B. Drowos, Esquire, Deputy Attorney General, Wilmington, Delaware for the State of Delaware.
James E. Liguori, Esquire of Liguori Morris Redding, Dover, Delaware, attorneys for the Defendant.
OPINION AND ORDER
I. Introduction
This Opinion and Order is supplemental to this Court's Order of August 1, 2003 which modified Kenneth DeRoche's sentence in the following manner: As to PK00-02-0024: The defendant is placed in the custody of the Department of Correction for 8 years at Supervision Level 5; suspended after serving 15 months for 6 months at Level 4 Home Confinement. Defendant shall remain in the Infirmary unless medically cleared and approved by this Court. All other aspects of the original sentencing order remain in effect.
II. Background
Mr. DeRoche has requested a sentence modification because he claims he is not receiving adequate medical care at Delaware Correctional Center. Mr. DeRoche has severe health problems including heart problems and high blood pressure. The Defendant has written numerous letters to this Court alleging instances when he was not receiving certain medications, claims of retaliation by First Correctional Medical, and when he was not given medical care. Prior to October 2002, Mr. DeRoche was able to maintain his medication in his cell; however, Mr. DeRoche's cell mate ingested all of Defendant's medication in an attempted suicide. At that time it was deemed that Mr. DeRoche was not in adequate control of his personal medications. As a result his right to keep a regular supply of medication in his cell was withdrawn. Subsequently, in order to receive his medication Mr. DeRoche was required to go to the medication window. Mr. DeRoche complained that he was not given all of his prescribed medications. Defendant further asserts that because of the lack of adequate medical care his blood pressure is consistently high and he suffered a myocardial infarction.
The Court engaged in essentially two evidentiary hearings concerning the medical treatment that Mr. DeRoche was receiving at Delaware Correctional Center. The first hearing was conducted on January 22, 2003, which consisted of testimony of Dr. Kastre, the acting medical director for the Delaware Department of Correction (DOC), and Mr. DeRoche. Dr. Kastre has been employed by First Correctional Medical (FCM) for seven years and since July 1, 2002 FCM has been the healtheare provider for DOC. On January 7, 2003, Dr. Kastre first became aware of Mr. DeRoche's medical issues when she examined him for a court required 60-day physician visit. During this examination Mr. DeRoche explained to Dr. Kastre that he was not getting access to the medications as he had been prescribed by this cardiologist, Dr. Rippert. Dr. Kastre was able to confirm that he had not been getting his Plavix which had been prescribed by the cardiologist on November 27, 2002 and was not given to Mr. DeRoche until January 7, 2003. She further confirmed that occasionally he was not provided with access to certain other medications but that he was not denied any medication for a significant period of time. Dr. Kastre also pointed out that there were occasions when Mr. DeRoche was offered medication and he refused to take it, and other times when Mr. DeRoche did not come up to the medicine window to receive his pills. From time to time the DOC would change vendors or brands of medication which would make the medication appear different. Mr. DeRoche admits that occasionally he would refuse his medication because no one would explain to him the medications that were being given to him and he was afraid of taking the wrong medications. On January 13, 2001, Mr. DeRoche was taken to the hospital complaining of chest pains and this hospital visit was discussed in great detail during the second evidentiary hearing. The second hearing was conducted on May 21, 2003. During the hearing the Defendant proffered the testimony of two doctors, Judith Rippert, MD and Jose Aramburo, MD, as well as the Defendant. Dr. Rippert is a board certified cardiologist who has been practicing in Dover since June 1997. Dr. Rippert's first contact with the Defendant was in the emergency room of Kent General Hospital on January 13, 2001. The doctor determined that Mr. DeRoche was having a myocardial infarction (commonly referred to as a heart attack). Dr. Rippert testified that anyone who has sustained a first myocardial infarction is at risk for a second attack. However, the risk of reoccurrence can be greatly decreased if all the risk factors are treated. After the myocardial infarction, Dr. Rippert endeavored to prevent future attacks; therefore, the doctor set up a cardiovascular risk management plan. Mr. DeRoche was aggressively treated for his blood pressure and cholesterol. Subsequent to the Defendant's discharge from the hospital, Dr. Rippert stated that she was having great difficulty controlling Defendant's blood pressure. However, the doctor could control his blood pressure much better in the hospital than when he was released back to the DOC. Dr. Rippert states that the Defendant's elevated blood pressure when he was not in the hospital may be attributed to the fact that he is not receiving all of his medications in a timely and orderly fashion. The doctor further testified as follows:
According to Dr. Kastre's testimony Plavix is designed as a type of blood thinner to prevent clots.
Although it is apparent from the record that Mr. DeRoche was not given Plavix for the entire month of December, there was a memorandum from Robbie Hampton, RN on December 19th that states that Mr. DeRoche was on certain medications including Plavix. During the evidentiary hearing Dr. Kastre asserted that "on Plavix" did not imply that Mr. DeRoche was taking that medication but merely meant that he had been prescribed that medication.
Dr. Rippert stated that if you treat the cholesterol to goal then you can reduce the risk by 44 percent, and if you treat the blood pressure to optimal levels you can reduce the risk of reoccurrence by almost 30 percent.
Dr. Rippert, citing the Joint National Committee Recommendations, stated that the recommended blood pressure for people with hypertension should be less than 130 — 135 over 80 — 85.
She also stated that it may be due to not getting enough medications, but the Defendant is on six blood pressure medications.
Dr. Rippert: I have made certain recommendations as to his medications, his blood pressure medication changes, as well as his cholesterol medications, and for some reason he's not necessarily getting the medications that have been recommended.
Q: And, therefore, is it fair to assume that he is still at high risk for recurrent myocardial infarction?
Dr. Rippert: Yes.
Additionally, Dr. Rippert testified that certain medications were time sensitive because of how the medication is metabolized and thus needed to be dispensed at fairly regular intervals. Dr. Rippert reviewed the prison records and they do not, for the most part, indicate the time each medication was dispensed. Dr. Rippert also reviewed Mr. DeRoche's documentation as to what medication was given and when it was given. The doctor concluded based on this review that not only were some of the recommended medications not given to Mr. DeRoche, but others were not given at the proper intervals.
After his release from the hospital, Mr. DeRoche was admitted to the Department of Correction's infirmary and was placed on a "watch and swallow" where medication was given and the mouth checked afterwards. In addition, his blood pressure has been checked four times a day since being admitted into the infirmary. According to Dr. Kastre, since being admitted to the infirmary Mr. DeRoche's blood pressure has been more controlled. However, there have still been problems with his cholesterol medication since his discharge from the hospital. Dr. Rippert recommended that Mr. DeRoche receive Niaspan to control his cholesterol, instead Mr. DeRoche has been receiving Niascin. Dr. Rippert explained in great detail why it was important that Mr. DeRoche receive Niaspan because it is released slower, decreasing the side effects, and it is more efficacious in decreasing triglycerides and raising HDL, which is the goal for effective cholesterol treatment. On cross examination the doctor was asked whether Niascin was an acceptable medication in this particular instance and Dr. Rippert responded that "My personal feeling would be, as the treating physician, that that would not be optimal." Additionally, on cross examination, Dr. Rippert pointed out that there were also periods where the chart indicates that Mr. DeRoche was not receiving either Niaspan or Niascin.
Aside from the issues concerning medication Mr. DeRoche also complains that on a day to day basis his needs concerning his medical condition are not being met. For example, on May 2, 2003, Mr. DeRoche complained of chest pain, palpitations, shortness of breath and dizziness. Mr. DeRoche requested and received nitroglycerine, then he claims the nurse left and did not check on him again. Mr. DeRoche claims he was having chest pains for two more hours before he could get someone to give him more nitroglycerin. On March 29, 2003, Mr. DeRoche testified that the nurse attempted to give him incorrect medication and he had to point the problem out to the nurse. Additionally, the FCM doctor ordered that Mr. DeRoche be able to exercise (specifically the exercise prescribed was walking around the hallways in the infirmary) twice daily but Mr. DeRoche has only been allowed to exercise once or twice a week and then he is only allowed to walk for two or three hundred feet. Subsequent to the evidentiary hearings, this Court has received numerous letters from Mr. DeRoche and his family members with one such letter and a motion being received by the Court after its ruling modifying his sentence. Nevertheless, these letters and motion contain no additional information that would lead this Court to further modify Mr. DeRoche's sentence.
Mr. DeRoche did file a medical grievance for this incident.
A motion seeking Level IV Home Confinement placement was received on August 25, 2003, wherein Mr. DeRoche alleges retaliatory actions on behalf of FCM and apparent indifference to his plight.
III. Analysis A. Standard for Sentence Modification
Superior Court Criminal Rule 35 allows the Court to reduce a sentence even if the conviction and the sentence imposed is legal. Moreover, Rule 35(b) "confers upon a sentencing trial judge considerable discretion over the appropriate grounds for a reduction of sentence." Superior Court Criminal Rule 35(b) states in pertinent part:
State v. Lexis, 797 A.2d 1198, 1200 (Del. 2002)
Id. at 1201.
(b) Reduction of sentence. — The court may reduce a sentence of imprisonment on a motion made within 90 days after the sentence is imposed. . . . The court will consider an application made more than 90 days after the imposition of sentence only in extraordinary circumstances or pursuant to 11 Del. C. § 4217. The court will not consider repetitive requests for reduction of sentence. The court may suspend the costs or fine, or reduce the fine or term or conditions of partial confinement or probation, at any time. A motion for reduction of sentence will be considered without presentation, hearing or argument unless otherwise ordered by the court.
Title 11 Del. C. § 4217 of the Delaware Code is only relevant when the Department of Correction is applying to have the sentence modified. DEL. CODE. ANN. tit. 11 Del. C. § 4217. Therefore, it is irrelevant for purposes of this case.
SUPER. CT. CRIM. R. 35(b) (emphasis added).
As a general rule sentence modifications are limited to motions filed within 90 days of sentencing; however, Rule 35 allows for sentence modification any time when "extraordinary circumstances" are present. Previous Superior Court rulings have identified certain factors which constitute extraordinary circumstances including: the nature of the original sentence and the actual time Defendant spent incarcerated. Here the Defendant has served over half his sentence. Additionally, in this case the Defendant had no reason to suspect that the prison would repeatedly and continually fail to provide reasonable medical care until after the 90-day limitation in the statute had passed. Under the facts and circumstances of this case, extraordinary circumstances are present to justify allowing this motion after the 90 day time limitation imposed by Rule 35.
Id.; see also Lexis, 797 A.2d at 1201.
State v. Lewis, 2000 Del. Super. LEXIS 384, *8 (Del.Super.Ct. 2000), aff'd, Lexis, 797 A.2d at 1201. The Lewis Court also identified two other factors concerning deportation that are not relevant beyond the facts of that specific case.
Id.
B. Adequate Medical Care
The concept that a prisoner while incarcerated shall be given adequate medical care has roots in both the United States Constitution and Delaware's statutory law. The United States Supreme Court has established that Eighth Amendment principles of "civilized standards, humanity, and decency" applies to inmates. The Supreme Court further opined that:
Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting cases).
These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common law view that "it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself."
Id. at *103 — *104 (internal citations omitted).
"Deliberate indifference to a prisoner's serious medical need constitutes an unnecessary and wanton infliction of pain and violates the Eighth Amendment proscription against unusual punishment." The courts have developed a two-part inquiry to determine whether a Defendant's constitutional rights have been violated: (1) the incarcerated must prove deliberate indifference to his medical needs; and (2) the incarcerated must provide proof demonstrating that the medical need is serious. This two-part inquiry is a difficult hurdle to overcome as noted by the Court in Berry where the Court said, "in the medical context, proof that a physician or any other healthcare provider has been negligent in diagnosing or treating a medical condition does not rise to the level of medical mistreatment under the Eighth Amendment." In Delaware, the concept that a prisoner is required to be given reasonable medical care has been codified at title 11, section 6536 of the Delaware Code which states:
Berry v. C.M.S., 1994 Del. Super. LEXIS 219, *6 (Del.Super.Ct. 1994) (citing Vicky. Dept. of Correction, 1993 Del. Super. LEXIS 115 (Del.Super.Ct. 1993)).
Estelle v. Gamble, 429 U.S. at 104 — 05.
Berry, 1994 Del. Super. LEXIS 219 at *6 (citing Estelle, 429 U.S. at 106).
The Department [of Correction] shall promulgate reasonable standards, for and shall establish reasonable health, medical and dental services for each institution, including preventative, diagnostic and therapeutic measures on both an out-patient and hospital basis for all types of patients.
DEL. CODE. ANN. tit 11, § 6536 (1970).
This Section has been implemented by regulations published in the Inmate Reference Manual (IRM). To the extent that the IRM contains mandatory language it has the same effect as a statute. It is clear that the Department of Correction has a duty to provide prisoners with adequate and reasonable medical care. Chapter 5 of the IRM entitled Rights of Offenders explains the rules for the treatment of offenders, and its purpose is "to establish minimum standards of treatment for offenders." The IRM states that "all offenders shall be treated in a humane manner; all rules and regulations shall be applied impartially. . . . Offenders shall not be treated in an arbitrary or capricious manner based on the nature of their crime or the length of their sentence." With respect to health and medical services the IRM provides as follows:
Anderson v. Redman, 429 F. Supp. 1105 (D. Del. 1977).
Parker v. Dept. of Corrections, 2001 Del. Super. LEXIS 544 (Del.Super.Ct. 2001) (citing Berry, 1994 Del. Super. LEXIS 219).
Inmate Reference Manual (IRM) 5.2 § II. at p. 1.
Id.
1. Every Offender will be provided with the full range of medical services necessary to maintain good physical and mental health. These services shall include but are not limited to: a. General medical services; b. Specialized medical services; c. Dental services; d. Psychiatric services; e. Vision services. 2. Every offender will be permitted at least one hour of exercise daily at least 5 days per week, except that if the offender poses a threat to safety or security . . . such exercise may be denied . . .
Id. at p. 3.
Chapter 4 of the IRM provides the procedure for a sick call which is an organized method for assessing an inmate's health. First the inmate must submit a sick-call slip. Then a physician or other qualified health care personnel conducts the sick call. If the inmate is unsatisfied with the medical care he/she has received then the inmate may register a health care complaint in the form of a grievance. The IRM sets forth procedures to access a variety of medical situations including: routine sick calls, emergency situations, medical screening for new inmates, illnesses that require hospitalization, illnesses that require in-patient infirmary care, how to deal with a hunger strike, and how segregated inmates receive medical care. Additionally, there is a procedure for self-care for a condition which can be treated by the inmate through over-the-counter type medication. Surprisingly, there does not appear to be any procedures for how to deal with an inmate who has a life-threatening chronic medical condition.
IRM Chapter 4 at p. 1.
Id. There is no indication as to what happens after the inmate files the grievance.
Id. at ch. 4 p. 2.
Since the case at bar is postured as a review of sentence, this Court will not utilize the stringent test for determining whether the prison's action violated Mr. DeRoche's constitutional rights. Rather this Court will attempt to establish whether Mr. DeRoche was given adequate medical care as mandated by section 6536. After listening to all of the testimony and reviewing the transcripts, this Court concludes that Mr. DeRoche was not given adequate medical care. It appears that Mr. DeRoche was not always given his medications. Further, Mr. DeRoche should not be penalized for failing to take his medication when the shape, size or color of the pill changes and he was not explained that change. Additionally, FCM failed to follow the cardiologist's recommendations about certain medications without giving an explanation as to why. FCM also failed to follow their own doctor's recommendation concerning exercise levels for Mr. DeRoche and the IRM's mandate that inmates should be permitted to exercise at least five days a week. This Court also finds credible Mr. DeRoche's assertion that he was not adequately monitored after complaining of chest pains and dizziness. Also, in the past, FCM has failed to follow this Court's order to provide documentation of Mr. DeRoche's condition every 60 days.
Nevertheless, although he has a heart condition and that condition may have been haphazardly dealt with by FCM, it now appears that it is being managed in a more responsive manner. Moreover, over the last several months FCM has been complying with this Court's order and sending medical updates every 60 days. However, this Court must caution DOC and FCM to do a better job in providing adequate medical treatment in Mr. DeRoche's case. Thus, this Court determines that some reduction in sentence is warranted, but not a reduction that would terminate his sentence immediately given the seriousness of the offenses. Consequently, Mr. DeRoche's sentence has been modified by the Order of this Court dated August 1, 2003.
IV. Conclusion
For the foregoing reasons, this Court modified Mr. DeRoche's sentence on August 1, 2003.
IT IS SO ORDERED.