MATHIE v. THE STATE OF NEW YORK, #2001-017-617, Claim No. 92206
Claim for malpractice based on alleged failure to properly treat Post-Traumatic
Stress Disorder is dismissed.
MICHAEL J. MATHIE The caption has been amended to reflect the change in claimant's first name since the filing of the claim.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ANDREW P. O'ROURKE
Rappaport, Glass Greene & Levine, LLPby: Charles Rappaport, Esq.
Eliot Spitzer, Attorney Generalby: Michael Rosas, Assistant Attorney General
October 17, 2001
See also (multicaptioned
Claimant was arrested on homicide charges on August 24, 1989 and he was held
in the Suffolk County Jail until September 1990 when, after his plea of guilty
to manslaughter, he was transferred into the State correctional system. During
his stay at the county facility, claimant suffered a pattern of sexual abuse at
the hands of Sergeant Roy Fries, the jail's Director of Security, a series of
events that culminated in forcible rape. As the result of an action brought
against Sgt. Fries and the County of Suffolk in federal court, claimant was
awarded compensatory damages of $250,000 and punitive damages of $500,000
Mathie v Fries
, 935 F Supp 1284, SDNY, 1996), a judgment that was
affirmed by the Court of Appeals for the Second Circuit, after the punitive
damage award was reduced to $200,000 (Mathie v Fries
, 121 F3d 808
The instant claim sounds in medical malpractice, based on the contention that
claimant suffered from post-traumatic stress disorder (PTSD) as the result of
the sexual attack and arising from the quality of care provided to claimant
during his residency in the State correctional system, which continues. In his
decision in the federal action, United States District Judge Arthur D. Spatt
found that claimant suffered from PTSD "with accompanying symptomatology
including depression, anxiety, fear and disturbed sleep." That finding, combined
with compensation for the physical assault, was the basis for the award of
damages. Claimant concedes that the federal judgment compensates him for his
damages through August 1996. This claim concerns (1) claimant's allegation that
his treatment while in the State system – the alleged failure to properly
treat PTSD – amounted to malpractice, and (2) his contention that the
federal judgment did not fully compensate him for PTSD because it did not cover
damages after the entry of judgment.
Claimant testified that he initially found life in the Suffolk County Jail
"difficult" until he got used to the routine, but that after he began seeing a
mental health counselor, he was able to set goals and achieve his GED "to
prepare to come upstate to go into the college program that they used to have in
the prisons" (Vol. I, 41). He also began to attend Alcoholics Anonymous and
Narcotics Anonymous meetings on weekends
. He first encountered Sergeant Fries around the end of January 1990 because he
was unhappy with his housing situation and the sergeant made a few phone calls
and ascertained that the District Attorney's office had requested that he and
his co-defendant be separated. Then, the sergeant began asking claimant about
his sexual orientation, what type of men he liked, and other conversation
indicating a sexual interest in the claimant.
Claimant testified that he was uncomfortable with the situation and tried to
dodge the questions, but that he began being summoned to see Sergeant Fries more
and more frequently and that the sergeant became more and more aggressive,
verbally and physically, until one day in mid-March when claimant was assaulted,
handcuffed to pipes in a windowless security office, and raped. He was told to
keep his mouth shut or he would be transferred to a unit where the most
dangerous inmates were housed and word would be spread that he raped a baby. He
eventually told what happened, but he was, and still is, afraid of retaliation
from Sergeant Fries.
Claimant was asked "what changed in your emotional life after these sexual
assaults that culminated in this rape?" Claimant stated that he began to have
difficulty sleeping and eating and he is uncomfortable when forced to be part of
a crowd of people, a situation that occurs with some frequency in prison. He
described himself as "very paranoid" (
, 53) and described physical manifestations such as pains in the
chest, heart palpitations, headaches and cold sweats. He also suffers from
recurrent nightmares and flashbacks.
When claimant was transferred from county to State custody, after his plea of
guilty to manslaughter, he went first to Downstate Correctional Facility and
thence to Shawangunk Correctional Facility. He requested psychological
and was seen by a psychologist named Ed Rudder and a psychiatric nurse named
Lorraine DelSanto. Claimant testified that he would tell Mr. Rudder about
"panic attacks or flashbacks *** or just plain depression" and talk about his
desire to pursue legal action against Sergeant Friese (id
Claimant was not impressed with the quality of Mr. Rudder's treatment –
"I would tell him and he would write some notes and say, okay, have a nice day.
And that was the end of it" (id
., 70) – or with the length, five to
ten minutes, of the sessions. He also felt uncomfortable talking about the
details of what had happened to him with another man and as a result he switched
to seeing Ms. DelSanto. He states that their session went well initially, but
then he began to feel that her orientation was to blame his childhood and his
relationship with his parents for his problems instead of the county jail
incident. He also saw a Dr. Patil, who prescribed Sinequan, a medication to
help him sleep, and psychologists Steven Merr, Joseph Milatello and Marilyn
Major. In 1995, he consulted with an outside psychologist, Robert
On cross-examination, some of claimant's accomplishments while residing in the
State correctional system were pointed out. He achieved an Associate's degree
from Ulster Community College in 1995 and has half of his credits towards a
Bachelor's degree in Political Science and Professional and Organizational
Communications. In 1992, he became a coordinating director of the League for
Lesbian and Gay Prisoners and was involved with the planning of a march on
. Additionally, claimant has become involved in investment counseling and staff
members in the correctional facility sometimes come to him for advice on
Defense counsel also elicited claimant's admission that during his four years
at Shawangunk he was never refused mental health services and that he met with
Ms. DelSanto approximately 25 to 30 times and with Mr. Rudder 36 to 40 times.
It was clear, nevertheless, that claimant's problem was not that he was refused
therapeutic services but that he had the perception that the therapists thought
he was a liar and treated him like a liar. Asked to give an example, he related
that when he had a settlement offer in the federal action, he asked Mr. Rudder
what he should do and Mr Rudder replied "what the hell do you want from me"
Ed Rudder is a Psycholgist II with the State correctional system and holds
Master's degrees in psychology (SUNY New Paltz) and criminal justice (SUNY
Albany). He first saw claimant on September 20, 1990, and although he had no
independent recollection of his findings that day, he wrote in his Screening
Admission Note (Ex. 1, 118, 119) that claimant reported that he had been raped
by a staff member in the county jail, that he experienced daily flashbacks of
that event that he tried to block out, that he appeared mildly depressed,
possibly as a "trauma reaction." On his September 27, 1990 Treatment Plan, Mr.
Rudder wrote that the "Release Discharge Criteria" for claimant was "to be able
to cope [with] flashbacks and painful memories [without] M.H. [mental health]
, 137). His impression was that claimant was suffering from
"adjustment disorder, depressed type" (Vol. V, 597). On October 14th, Mr.
Rudder wrote that he was referring claimant to Dr. Patil for evaluation of the
possibility of prescribing medication to lessen fatigue and
With respect to his diagnosis, Mr. Rudder was asked if he had ruled out PTSD
and he replied that he did not seriously consider it. When asked why not, being
that claimant had reported symptoms consistent with PTSD – flashbacks,
anxiety, depression, nightmares – Mr. Rudder stated: "It's not just the
report, it's observing the behavior" (
, 599), and he elaborated
For example, when I've seen someone with what I would consider severe PTSD, I
remember, in particular, a war veteran from Vietnam, and when he would describe
his experiences he would be physically shaking, his voice would tremor. I saw
none of that, as I can see in the notes, with Mr. Mathie.
Mr. Rudder indicated that he had probably considered PTSD but
the degree of intensity of claimant's symptoms did not suggest that
Lorraine DelSanto has worked as a psychiatric nurse for the State since 1973.
She testified that claimant had requested that he be assigned to her caseload
because he felt threatened by his then-current therapist, Mr. Rudder, because he
was a man, but that on December 18, 1990, claimant asked to be returned to Mr.
. Ms. DelSanto, who treated claimant from September 1990 through the end of
1992, described her role as providing "supportive therapy" – engaging in a
therapeutic relationship with the client (id.
, 498). Ms. DelSanto
acknowledged that the symptoms exhibited to her by claimant, including insomnia,
flashbacks, nightmares and anxiety, would be "compatible" with a diagnosis of
PTSD, although that was not claimant's diagnosis (id.
Claimant's counsel questioned Ms. DelSanto with respect to her recommending
that claimant read a book called
Outgrowing the Pain
. She stated that this is a book she uses with
victims of childhood abuse and she recommended the book after claimant made an
"implied reference" (id.
, 535) to having been a victim of such
On October 10, 1991, Ms. DelSanto wrote that claimant had attempted to
participate in the Alternative to Violence Program (AVP) which was required of
inmates who wished to participate in the family reunion program, but that he
reported that he had been unable to attend the AVP because he was uncomfortable
with the "group setting and the need to participate and touch people" (
When she was asked if she recalled forming an impression that claimant was not
honest, she responded:
What I recall is a fellow that would come in saying he had these symptoms, and
he physically wasn't presenting with the extent of the symptoms he was reporting
***his functional level remained quite high *** I did think he had some
symptoms. I just did not think they had the extremes to which he was reporting
*** he was much more spontaneous than one would be who was having the symptoms
he was presenting with *** he was saying he was having them, not presenting
them. (id., 546-547, 554).
Ms. DelSanto testified that despite her belief that claimant
was exaggerating his symptoms, she never declined to treat him. She indicated
that claimant's diagnosis, initially arrived at at Downstate, was adjustment
disorder, not PTSD. She nevertheless felt that claimant's functional level was
quite high for someone starting a long prison term: "I mean, he should have been
overwhelmed. He should have been devastated. He should have been a basket
case, and he really functioned rather well in a horrible environment."
Dr. Shyam Patil graduated from medical school in India in 1972, came to the
United States in 1973, obtained his license to practice medicine in 1982, and is
board-eligible but not board-certified in psychiatry. He described his
function, as a physician employed by the Department of Correctional Services, as
evaluating inmates to determine whether there was a need for medication. After
seeing claimant in October, 1990, Dr, Patil prescribed Sinequan, which has a
dual function as an anti-depressant and an anti-insomniac. In July, 1992, he
prescribed Vistaril, also for anxiety and insomnia, and in August of that year
he prescribed Elavil, an anti-depressant. His primary impression of claimant
was that he suffered from "major depression" (Vol. IV, 359) which was related to
the trauma he underwent in 1990 when he was raped. He did not recall having the
impression that claimant was not honest with him.
Steven Merr, who holds a Master's degree in psychology, first saw the claimant
in September 1995 at Woodbourne Correctional Facility after claimant had
requested treatment. He completed an Admission/Screening Form (Ex. 1, 66) which
contained a section called "Admitting Diagnoses" where Mr. Merr wrote "R/O [rule
out] PTSD chronic". He testified that his diagnosis was provisional (i.e.,
"rule out") "because I didn't see for sure that he had it *** but on the other
hand, he said he had these complaints, so I admitted him for treatment of PTSD
and figured I could always rule it out if it wasn't present" (Vol. II, 176). He
elaborated: "He Looked fine. Poised, relaxed, intelligent, well spoken. Didn't
seem nervous. Seemed very in control of himself" (
, 177). Mr. Merr also testified that claimant told him he was
dissatisfied with his prior treatment.
Mr. Merr's plan was to "work with him on the PTSD issues, on the sodomy issues"
, 183) and to see him, initially, monthly. After the initial session
on September 5, 1995, a session was scheduled for October 16th, but claimant did
not show up. An appointment was scheduled for November 20th, at which time Mr.
Merr wrote that claimant still had nightmares related to the rape, that he was
instructed in deep breathing technique and given some homework regarding PTSD,
and was scheduled to return on December 29th. On that date, claimant again
failed to appear, and a further appointment was scheduled for January 19, 1996.
On that date, Mr. Merr wrote that claimant found the deep breathing helpful,
that claimant "meets the criteria for PTSD" and that they would "time limit the
number of sessions" (id.
, 203). He advised that he sometimes does this
to increase a patient's motivation to show up and to do productive work by
creating a limit of, for example, ten sessions, and then when the patient is
more engaged in the therapy, extend for another ten
The next notation in the record is dated April 30
th, when Mr. Merr wrote that claimant was scheduled to go to court the following
week and was having trouble sleeping and that he would contact him on his return
from court. Mr. Merr was never contacted by claimant but he nevertheless
scheduled him for sessions on June 16th, August 12th and October 1st. After
claimant failed to appear for any of these appointments, Mr. Merr discharged him
from treatment, writing:
Sexually accosted by chief of security of Suffolk Co. jail when he was 22 y.o.
(according to inmate). Has had legal action in this regard pending. Supportive
[therapy] since coming upstate until 3/94. Claims PTSD. Reinstituted
[treatment] when he came to Wdbrn 9/95. Saw clinician until he went to court
for this case that he worked "6 years for." Interestingly, no complaints of
PTSD or anxiety since his return. Has consistently missed call outs since his
return. All this suggests that he was seeing me to bolster his claim for legal
damages. At any rate, he is obviously uninterested in [treatment] at this time.
CO's report stable functioning – no unusual behaviors. [Diagnosis] was to
R/O PTSD. No current [diagnosis] on discharge. (Ex. 1, 93).
In addition to the trial witnesses, claimant submitted deposition transcripts
from Dr. Marilyn Major and Joseph Militello, a State-employed Psychologist II.
Leah Blumberg Lapidus, who holds a Ph. D. in Clinical Psychology and is a
Professor of Clinical Psychology at Columbia University, testified as an expert
witness for the claimant. Prof. Lapidus' background in the field of psychiatry
in general and with respect to PTSD specifically, including approximately 100
publications, is detailed in her 28-page curriculum vitae (Ex. 3). She
described the principal focus of her career as being on stress and trauma,
particularly PTSD, including working with hundreds of Vietnam veterans.
Dr. Lapidus characterized PTSD as occurring when an individual has been exposed
to a traumatic event that (1) involved actual or threatened death or physical
injury, and (2) elicited a response involving intense fear, helplessness or
horror. She advised that PTSD usually results in reliving the trauma via
flashbacks and nightmares.
Dr. Lapidus met with the claimant on June 17, 2000 at Elmira Correctional
Facility at which time she administered a battery of psychological tests. From
claimant's performance on the tests, Dr. Lapidus concluded that he was suffering
from chronic PTSD as the result of the events that occurred in the Suffolk
County Jail. She also concluded that he was not faking or malingering. She
opined that Mr. Merr's diagnosis – that claimant was not suffering from
PTSD – was "grossly inaccurate" (Vol. III, 276), and that the failure to
have administered the tests that she administered was a departure from good and
accepted standards of psychological care. She also found fault with the failure
to have referred claimant to a PTSD expert, with Mr. Merr's termination of his
care after claimant failed to appear for his therapy sessions, and with the
length of the sessions, which she felt were too short. All of these various
shortcomings resulted, according to Dr. Lapidus in a worsening of claimant's
condition, although she admitted that even had claimant been provided with what
she felt was appropriate treatment he would still have PTSD, albeit to a lesser
Dr. Allen Reichman, a board-certified psychiatrist who has been engaged in
forensic psychiatry for 25 years, testified for the defendant as an expert
witness. Dr. Reichman reviewed various items, including deposition transcripts,
claimant's medical records and Dr. Lapidus' report, and he examined the claimant
on August 31, 2000. He described claimant's status at that examination as "free
from any abnormal findings at all" (Vol. IV, 420), and he felt that claimant did
not satisfy the diagnostic criteria for PTSD. He did not administer any written
tests and he did not feel that such tests were necessary in order to diagnose
whether a person suffers from PTSD.
Dr. Reichman was critical of Dr. Lapidus' report, alleging that in a number of
instances the report indicated a bias in favor of the claimant rather than a
neutral posture. Specifically, he pointed out that she referred to the denial
of his parole application as a "charade" and that she always referred to him as
"Michael" rather than the more clinically appropriate "Mr. Mathie" (
, 426). He testified that such identification with the subject was
inappropriate for a forensic psychiatrist. When asked about the usefulness of
the multitude of tests that Dr. Lapidus administered to the claimant, Dr.
Reichman was particularly critical:
I think the semi-structured diagnostic interviews might be useful and the TAT
might be useful. *** I don't think any of the others would be of any value, in
my opinion. I think the usefulness of keeping someone in a room for 12 hours, I
think is highly debatable *** it's subjecting the individual to a fatiguing
experience and one which is – can be anxiety provoking, and I don't think
it achieves anything other than accumulating a lot of data, which then gets
presented as something scientific. (Id., 481-482).
The doctor's opinion is that such test results cannot be
considered valid "unless they coincide with the clinical data" (id.
and, as noted, claimant did not present himself, to Dr. Reichman, as suffering
from mental illness.
Dr. Reichman did not have any problem with the treatment that claimant received
in the defendant's correctional facilities, except that he did agree with Dr.
Lapidus that a patient with a diagnosis of "rule out PTSD" should be seen more
frequently than once a month. He did not feel that such was significant,
however, since claimant did not appear for many of the therapy sessions anyway
and later records did not indicate, to him, that claimant's condition had in any
way worsened or that he was suffering from PTSD. Despite his disagreement with
the portion of Mr. Merr's treatment plan that involved revisiting the
circumstances of the rape, Dr. Reichman concluded that "the treatment that was
being rendered was appropriate and had shown some signs of being effective"
, 440). In this regard, he observed that PTSD "doesn't go away
completely. People do get better to the point where they can function
reasonably well" (id.
, 457), a statement that was consistent with Dr.
The Court of Appeals expressed the duty owed by a medical provider to a patient
A physician's duty is to provide the level of care acceptable in the
professional community in which he practices (Toth v Community Hosp., 22
NY2d 255). He is not required to achieve success in every case and cannot be
held liable for mere errors in professional judgment (Pike v Honsinger,
155 NY 201; DuBois v Decker, 130 NY 325). The "line between medical
judgment and deviation from good medical practice is not easy to draw"
particularly in cases involving psychiatric treatment (Topel v Long Is.
Jewish Medical Center, 55 NY2d 682, 684). Schrempf v State of New
York, 66 NY2d 289, 295.
More specifically, a medical provider owes "(1) the duty to
possess the requisite knowledge and skill such as is possessed by the average
member of the medical profession; (2) a duty to exercise ordinary and reasonable
care in the application of such professional knowledge and skill; and (3) the
duty to use his best judgment in the application of this knowledge and skill"
(Littlejohn v State of New York
, 87 AD2d 951,
Claimant's burden herein was to establish that the psychiatric care afforded to
him in the defendant's correctional facilities fell short of these standards.
The proof at this trial fell far short of meeting this burden of proof and the
claim must therefore be dismissed. The record shows, at most, that medical
providers with appropriate training and skill can, in the reasoned application
of medical judgment, arrive at different conclusions as to the quality and
quantity of psychiatric care appropriate for a given patient. Claimant's
expert's critique of the care provided to him must be viewed in that light,
particularly since claimant's history while in defendant's custody indicated
someone who adjusted to prison life remarkably better than most inmates.
Moreover, the decision of the Court of Appeals for the Second Circuit in
claimant's federal litigation makes clear that he has already been fully
compensated for his damages that resulted from the assault by Fries:
accepting as we do the District Court's finding that Mathie has suffered and
continues to suffer from episodes of panic attacks, sleeplessness,
insecurity, and anxiety as a result of Fries's sexual abuse and sodomy *** we do
not think that the District Court's award of $250,000.00 is outside the range of
reasonable compensation. Mathie v Fries (121 F.3d 808, emphasis
The award of compensatory damages was for the physical pain
and fear that claimant suffered as well as for the psychological consequences,
both past and continuing, including the symptoms of PTSD that the circuit court
described and which form the basis of the instant claim. Thus, not only did
claimant fail to prove any deviation from the applicable standard of care on the
part of defendant's employees, he also failed to prove that he somehow suffered
from psychological damage above and beyond that for which he has already
Accordingly, the State's motion to dismiss, upon which decision had been
reserved, is now granted, any other motions upon which decision had been
reserved are denied, and the Chief Clerk is directed to enter judgment
dismissing this claim.
New City, New York
HON. ANDREW P. O'ROURKE
Judge of the
Court of Claims
Claimant admitted having a history of cocaine
abuse prior to his arrest.
Claimant had testified that, prior to his
arrest, his sexual orientation was homosexual but that his experience had been
limited to one long-term relationship. He had divulged such upon his admission
into the county jail.
Claimant acknowledged that he had received
"supportive therapy" at the county jail during the four or five months that
preceded the attack by Sgt. Fries (Vol. I, 89).
It was through his association with this
organization that claimant became aware of Mr. Dumont, the psychologist whom he
consulted on his own. Mr. Dumont testified on claimant's behalf in the federal
action, via deposition, but subsequent to the deposition sustained a head injury
and was unable to testify.
Subsequently, in September 1991, claimant
requested to be transferred back to Ms. DelSanto's care, which was