New York State Court of Claims

New York State Court of Claims

MATHIE v. THE STATE OF NEW YORK, #2001-017-617, Claim No. 92206


Synopsis


Claim for malpractice based on alleged failure to properly treat Post-Traumatic Stress Disorder is dismissed.



Case Information

UID:
2001-017-617
Claimant(s):
MICHAEL J. MATHIE The caption has been amended to reflect the change in claimant's first name since the filing of the claim.
Claimant short name:
MATHIE
Footnote (claimant name) :
The caption has been amended to reflect the change in claimant's first name since the filing of the claim.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
92206
Motion number(s):

Cross-motion number(s):

Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
Rappaport, Glass Greene & Levine, LLPby: Charles Rappaport, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Michael Rosas, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 17, 2001
City:
New City
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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[1]
. 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.[2] 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" (
id., 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 counseling[3]
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., 67). 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 Dumont.
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 Washington[4]
. Additionally, claimant has become involved in investment counseling and staff members in the correctional facility sometimes come to him for advice on stocks.
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" (
id., 120).
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] assistance" (
id., 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 anxiety.
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" (
id., 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 diagnosis.
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. Rudder's care[5]
. 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., 521).
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 abuse.
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" (
id., 538).
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." (Id., 560).
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" (
id., 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" (
id., 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 sessions.
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 degree.

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" (
id., 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., 486) 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" (
id., 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. Lapidus' testimony.
The Court of Appeals expressed the duty owed by a medical provider to a patient as follows:
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, 952.
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 supplied).
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 recovered.
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.


October 17, 2001
New City, New York

HON. ANDREW P. O'ROURKE
Judge of the Court of Claims




[1]Claimant admitted having a history of cocaine abuse prior to his arrest.
[2]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.
[3]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).
[4]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.
[5]Subsequently, in September 1991, claimant requested to be transferred back to Ms. DelSanto's care, which was granted.