Al-Oshan v. Bush

F|LED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SALEH ABDULLA AL-OSHAN, et al.,
Petitioners,
Civil Action No. 05-0520 (RMU)
v.
BARACK H. OBAMA, et al.,
Respona'ents.
STIPULATION AND ' ORDER
WHEREAS, on November 13, 2009, the Court entered an Order that
requires, inter alia, an otolaryngologist (the “ENT specialist") to produce by December
l6, 2009 a report (the "Report") articulating the medical benefits and drawbacks of the
following options: (l) adhering to the current medical protocol, i.e., keeping the
Petitioner’s feeding tube in place for periods of one or two weeks at a time with periods
of "nasal rest" during which he is not fed; (2) delivering nutrition through a percutaneous
endoscopic gastronomy ("PEG") feeding tube; and (3) any alternative long-term feeding
options that the ENT specialist recommends.
IT IS THEREFORE STIPULATED AS FOLLOWS:
l. Dr. Sondra Crosby and an ENT specialist provided by Respondents
will attempt to collaborate and prepare the Report in consultation with such medical
professionals as they determine are necessary to evaluate the issues presented by the
Court’s November 13, 2009 Order.
2. Upon submission of a request, Respondents shall grant Dr. Crosby and
her interpreter (the "Interpreter") all requisite permission and authorization to travel to
Guantanamo Bay, Cuba on or about December 9, 2009, through December 13, 2009.
DEC 9 ~ 2009
US DBTNCTCOURT
.CLERK
3. Upon submission of a request, on December 9, 2009, through
December 13, 2009, or on such other dates as shall be agreed to by the parties (the
"Examination Period"), Dr. Crosby and the Interpreter shall be given access to the
Petitioner, Abdul Rahman Shalabi, at the Guantanamo Bay, Cuba detention facility,
within operational constraints.
4. During the Examination Period, Dr. Crosby shall perform a
comprehensive medical evaluation of Petitioner.
5. During the Examination Period, an ENT specialist to be designated by
Respondents shall perform a comprehensive examination of Petitioner.
6. The ENT specialist and Dr. Crosby shall confer prior to the
Examination Period about their respective examinations of Petitioner. The ENT
specialist shall conduct such tests and create such records that are necessary to assist in
the preparation of the Report.
7. The ENT specialist and Dr. Crosby shall examine Petitioner in the
presence of the other; however, Dr. Crosby will be permitted to meet with Petitioner
outside the presence of the ENT specialist prior to the examination to address with
Petitioner appropriate medical history and the conduct and purpose of the examination
provided for herein. Dr. Crosby shall provide a complete account of the discussions with
Petitioner to the ENT specialist. The account of the pre-examination meeting shall be
provided in person before the examination occurs. To the extent the Report is based upon
information gleaned by Dr. Crosby during this consultation with Petitioner, such
information shall be disclosed and identified clearly in the Report.
8. During the Examination Period, a member of the Joint Medical
Group’s behavioral health services staff shall perform an evaluation of Petitioner
regarding his competency to make medical decisions for himself After the examination,
the professional will share his or her conclusions, to include making notes available, with
Dr. Crosby and the ENT specialist. This evaluation will be contingent upon Petitioner’s
willingness to cooperate.
9. After Dr. Crosby and the ENT specialist conclude their examinations
of Petitioner, they shall attempt to confer and collaborate in connection with the
preparation of the Report. Among other things, both physicians shall disclose, as
reasonably requested, to the other, all notes and records created during his or her
examination of Petitioner, and shall make a good faith effort to share with each other any
medically relevant conclusions or impressions formed in the course of the examination.
To the extent that either physician disagrees with or is otherwise unwilling, in his or her
professional judgment, to concur in any aspect of the Report, it shall be noted and
discussed, as appropriate, in the Report or an appendix thereof. In the event Dr. Crosby
and the ENT specialist cannot agree to one document, separate reports may be submitted.
10. Dr. Crosby and the ENT specialist shall be given access, as requested,
to (l) all medical records pertaining to the Petitioner, including results of any laboratory
and imaging tests conducted; (2) all records, medical or otherwise, pertaining to
Petitioner’s enteral feedings; and (3) all policies and procedures, or other information,
relating to detainee medical and mental health care, as well as enteral feedings. Such
information shall not be disclosed except to the extent permissible under the Protective
Order entered in this case.
ll. During the Examination Period and prior to the submission of the
Report, Dr. Crosby and the ENT shall be permitted to speak with and interview
Petitioner’s internist and feed doctor, as well as a treating feed nurse familiar with
Petitioner and his medical care, a treating corpsman familiar with Petitioner and his
medical care, and behavioral health professionals with information regarding Petitioner’s
psychological condition. To the extent further interviews are necessary, they may be
coordinated with the Joint Medical Group leadership during the Examination Period. Dr.
Crosby and the ENT shall disclose to the internist and the feed doctor all notes and
records created during their examinations of Petitioner, and shall make a good faith effort
to share with them any medically relevant conclusions or mental impressions formed in
the course of the examination.
12. Dr. Crosby, the ENT and the Interpreter shall be permitted to observe
the Petitioner during an enteral feeding on Friday, December ll, 2009, in the ordinary
course and at the normal location that his enteral feedings currently take place. In the
event that Petitioner is not enterally fed on Friday, December ll, 2009, due to nasal rest,
Dr. Crosby, the ENT and the Interpreter shall be permitted to observe the Petitioner
during an enteral feeding on Saturday, December l2, 2009, in the ordinary course and at
the normal location that his enteral feedings currently take place.
l3. Prior to the submission of the Report, Dr. Crosby shall be permitted to
consult with qualified medical and correctional professionals regarding her findings, but
only to the extent permissible under the Protective Order entered in this case. Dr. Crosby
shall disclose all such consultations in the Report and shall involve the ENT specialist in
all such consultations.
14. In order to allow Dr. Crosby and the ENT sufficient time to confer and
collaborate, the Report shall be submitted on or before December 23, 2009.
PAUL, WEISS, RIFKIND,WHARTON
& GARRISON LLP
/s/ Julia Tarver Mason
Julia Tarver Mason (NY0029)
jmason@paulweiss.com
Martin Flumenbaum (Bar No. 393210)
mf``lumenbaum@paulweiss.com
1285 Avenue of the Americas
New York, NY 10019-6064
Tel: (2l2) 373-3000
Fax: (212) 757-3990
Cotmsel for Petitioner
Dated: December 8, 2009
TONY WEST
Assistant Attorney General
JOSEPH H. HUNT
Branch Director
TERRY M. HENRY
JAMES J. GILLIGAN
Assistant Branch Directors
/s/ jonathan S. Needle
ANDREW I. WARDEN
STEPHEN FINN
JONATHAN S. NEEDLE
Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue N.W.
Washington, DC 20530
Tel.: (202) 305-0037
Fax: (202) 616-8470
Attorneys for Respondents
SO ORDERED thisc_ lurk day of December, 2009
/§.,i.»»t.§tca~.
\
"\J\~¢l
Hon. Ricardo M. Urbina
United States District Judge