New York State Court of Claims

New York State Court of Claims

ABDUL v. THE STATE OF NEW YORK, #2001-016-042, Claim No. 98080


Pro se prisoner's claim complaining that medical treatment at Woodbourne Correctional Facility caused lung damage was dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Raheem Abdul
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
June 12, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of Raheem Abdul, who complains of medical treatment he received at Woodbourne Correctional Facility. Specifically, he alleges that he was not timely diagnosed or treated for pneumonia, which resulted in damage to his lungs. The claim was tried at Sullivan Correctional Facility where Abdul testified on his own behalf and defendant called Dr. Mervat Makram.

Claimant testified that around Thanksgiving of 1997, he developed a bad cough, but waited several weeks before seeking treatment because he thought it was just a cold. When he was still coughing on December 12, he went to sick call, where it was discovered that he had lost nine pounds in three weeks. Abdul recollected that he was given cough medicine and Tylenol and told to come back if necessary. Two to three weeks later, he returned and it was learned that he was still losing weight. A nurse told him she would schedule him for a test with Dr. Mervat Makram, whom he saw in February. Abdul said that again he was given Tylenol and cough medicine and Dr. Makram also administered a tuberculosis test, after which he was put in isolation and given T.B. medication. According to claimant, he was later diagnosed with pneumonia and was given an inhaler to clear his lungs, which he had to use for two to three months. Abdul asserted that medical personnel at Woodbourne were "fixated" on T.B. when a "simple examination" would have solved his problems,
i.e., he seemed to suggest that defendant should have diagnosed and treated him earlier for pneumonia.
Dr. Mervat Makram testified that she was employed as a physician at Woodbourne and treated claimant during the relevant period. Reviewing claimant's medical records (defendant's exhibit A), she noted that he went to sick call on December 12 where he saw a nurse, complaining of a cough and asking to have his blood sugar tested; he was tested for diabetes and scheduled for blood work on December 19. The nurse also documented that claimant had lost nine pounds in recent weeks. Dr. Makram explained that cough and weight loss are signs of T.B. and that the facility is obligated to screen for T.B. and isolate a patient if it is suspected he has T.B. She also explained that once a patient is suspected of TB, a skin test is done, the results for which come back in 48-72 hours; if the patient is "immuno-compromised," the skin test may have a "false negative." Abdul's skin test was negative, but since he was positive for Hepatitis C and thus immuno-compromised, such negative result was considered a false negative. Asked on cross-examination why claimant was not put in isolation right away if it was suspected he had T.B., she responded that in view of his negative skin test result, it was not considered highly suspicious. She added that the next step after the skin test is to do three sputum cultures, which were ordered for Abdul on December 12.

Dr. Makram testified that on January 8, 1998, Abdul complained of fever and cough and his temperature was 102
. A nurse gave him Tylenol and lozenges for throat redness. The doctor explained that since Abdul's throat culture was negative, his fever could have been the result of lung infection, bronchitis, pneumonia or tuberculosis.

On January 27, claimant went to sick call again with the same symptoms: weight loss and chronic cough. At that point, he was scheduled for an appointment with Dr. Makram, who saw him on February 3. On that day, he complained of weight loss, chronic cough and sporadic fever. She stated that upon examining him, she found infection in the upper lobes of his lungs, adding that T.B. is usually found in just the upper lobes. The doctor explained that at that point, it was possible that claimant had bronchitis, but not pneumonia, since he had no "rales" in his lungs. To confirm, she ordered a lung x-ray, which later came back negative for pneumonia. Because bronchitis can lead to pneumonia later, claimant was prescribed an antibiotic to prevent this. In addition, claimant was given a diet supplement for his weight loss. Dr. Makram added that no T.B. medication was given on February 3, only antibiotics.

After examining claimant on February 3, Doctor Makram ordered that he be placed in isolation as a precaution against spreading T.B. Because Woodbourne does not have isolation rooms, claimant was transferred to Sullivan on "respiratory precautions." Thereafter, one of claimant's sputum tests, which had initially appeared negative, came in positive, indicating bacteria not from T.B., but from the T.B. "family"; she explained that an initial result is ready in 48 hours, but the final result takes four to six weeks. Doctor Makram then ordered another T.B. test, but claimant was not started on T.B. medication. Three more sputum samples were collected and the preliminary results were all negative. In addition, another chest x-ray was ordered.

Dr. Makram testified that claimant was discharged back to Woodbourne on February 10. He was then put on an another antibiotic, again not T.B. medication, and was in the infirmary over night. It should be noted that claimant's medical records contain a February 6 entry noting that "MD suspects pneumonia" as well as a diagnosis of "atypical pneumonia" on February 10, but Dr. Makram stated that she did not know what this diagnosis was based on, as it was apparently not made by her. Claimant was released from respiratory isolation on February 11. Dr. Makram stated that claimant ultimately recovered and now weighs 193 pounds. Claimant interjected that it had taken six months to regain his weight. He also added that he felt isolation was a punishment for refusing to go back to his cell.
* * *
"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons."
Rivers v State of New York, 159 AD2d 788, 789, 552 NYS2d 189 (3d Dept 1990), lv denied, 76 NY2d 701, 557 NYS2d 878 (1990). However, in order to prove a medical malpractice case, a claimant must present expert testimony that accepted standards of medical care were not met. See, e.g., Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied, 92 NY2d 814, 681 NYS2d 475 (1998). In this case, there was no expert testimony that defendant deviated from accepted standards of medical care. In fact with regard to any delay, the only medical testimony was that a chest x-ray ordered on February 3, 1998 confirmed that claimant did not have pneumonia at such time. The pneumonia diagnosis is listed in claimant's medical record for February 10, only one week later. Nor did claimant present sufficient evidence to suggest that his isolation was a punishment. Rather, the Department of Correctional Services policy on T.B. does provide for isolation of patients suspected of having T.B. (defendant's exhibit B).
In view of the foregoing, IT IS ORDERED that
claim no. 98080 be dismissed.

June 12, 2001
New York, New York

Judge of the Court of Claims