CONROY v. THE STATE OF NEW YORK, #2002-016-066, Claim No. 103497, Motion No.
ROSELINDA CONROY, Individually and as Executrix of the Estate of GEORGE SIANO, deceased The caption has been amended sua sponte to reflect that the only proper defendant in this Court is the State of New York.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Gottlieb & NitkewiczBy: Edward J. Nitkewicz, Esq.
Eliot Spitzer, Attorney GeneralBy: Katharine S. Brooks, AAG
June 28, 2002
See also (multicaptioned
By a plea agreement executed September 6, 2000 with the Office of the United
States Attorney for the Eastern District of New York, Dr. Michael Swango
admitted that he "intentionally murdered George Siano at the Veterans Affairs
Medical Center in Northport, New York...by administering an intravenous
injection of a toxic substance that caused cardiac arrest on or about July 26,
1993." (Cl affirm in opp, exh E, p 3).
Swango, on July 1, 1993, had begun a four-year medical residency in psychiatry
at the State University's Health Sciences Center at Stony Brook. Swango was
assigned by Stony Brook to work in the residency program it ran at the Veterans
Affairs hospital in Northport, which is also located in Suffolk County. The
assignment at the VA hospital was in internal medicine, part of the standard
rotation for Swango's residency.
The claim on behalf of Siano was filed with this Court on December 8, 2000; the
notice of intention to file a claim had been served on defendant on September
26, 2000. Defendant here moves to dismiss the claim as being barred by the
statute of limitations. Defendant points to the claim's list of the injuries
Siano suffered as pre-death objective manifestations of the damage or symptoms
caused by exposure to the drug Swango injected him with: increased blood
pressure, increased heart rate, loss of motor control, paralysis and loss of
muscle function. (Def aff, exh B, ¶6; def brief, p. 4).
Such objective manifestations, asserts defendant, mark the accrual of Siano's
claim for purposes of CPLR §214-c.
Accordingly, claimant fails to satisfy either the section's basic operative
provision, the date of discovery of the injury (subdivision 2), or subdivision
4, which extends the limitations period to allow for later discovery of the
causation therefor. Defendant cites, among other cases, Wetherill v Eli
Lilly & Co.
, 89 NY2d 506, 655 NYS2d 862 (1997).
In any event, §214-c is intended to create a date of discovery limitations
rule (actual discovery or discovery with reasonable diligence) for injury
caused by the latent effects of exposure to toxic substances. See 1986
McKinney's Session Laws Memoranda, pp 3182-84; and for example, Whitney v
Quaker Chemical Corp., 90 NY2d 845, 660 NYS2d 862 (1997). Section
214-c does not comprehend Siano's death, which was caused by an injection of a
substance, epinephrine, that can have a legitimate medical use, a use not called
into question by subsequent scientific developments, but which was malevolently
injected by Dr. Swango to have a fatal effect. Mr. Siano's case is not about
exposure to epinephrine, but of exposure to Michael Swango.
This matter is one that is in fact based upon
Swango, pursuant to his residency
employment at Stony Brook Health Sciences Center, engaged in any number of
fraudulent acts, including: concealing his background; calling himself at some
point Dr. Michael Kirk; writing in Siano's medical charts that the family did
not want resuscitative measures ("No resuscitative measures as per family and
attending decisions" [cl exh O, "Gov't Ex 10"] ) and so informing his
colleagues; using epinephrine, which was not only undetectable but would make
death appear natural; and concealing his crime with misleading post-mortem chart
notes. Cl exh D, pp 2-3; cl exh E, item 6.
Under Article 2 of the CPLR, fraud has a limitations period which is the later
of i) six years from the commission of the fraud; or ii) two years from the
date the fraud was discovered or should have been discovered with reasonable
diligence. CPLR §§ 213.8 and 203 (g). Inasmuch as seven years
lapsed between Swango's actions at Stony Brook and the filing of a claim on
behalf of Siano, this motion hinges on whether claimant can satisfy alternative
Defendant contends that an "abundance of media coverage" together with the
claim's own allegations of symptoms raised a "reasonable suspicion" that would
impute timely knowledge sufficient to defeat any reliance claimant might place
on a late discovery date for purposes of the fraud statute of limitations (def
mem of law, p.9). What follows is the extent of that news coverage according to
the parties; all of which is from defendant's papers, other than the first three
items from Newsday:
1. (cl aff, exh A). In 1993, an October 20 article in Newsday
explained that Swango was fired by Stony Brook for lying on his application,
not informing them that he was convicted in 1985 of poisoning six paramedics in
Quincy, Illinois by lacing their donuts, tea and soda with ant poison, and that
he served two years of a five-year sentence.
According to the Newsday story, the Discovery cable channel broadcast a
program in December, 1992 about the Swango Illinois poisoning. Officials of the
University of South Dakota Medical School were made aware of the program and
consequently expelled Swango from his residency there. The Stony Brook
administration only learned of it in mid-October 1993 when they received a phone
call from the dean of the South Dakota Medical School.
The article went on to say that Ohio authorities in 1986 had some evidence
"linking" Swango to several patient deaths, though not enough to sustain
criminal charges. Nothing in the story mentioned any suspicions about deaths in
Stony Book or its program run at the Northport VA.
2. (cl aff, exh C). Newsday followed up a few days later on October
23, 1993 to the effect that federal investigators and those from the Suffolk
County medical examiner's office were about to comb through the records of the
patients Swango had contact with at the VA hospital.
3. (cl aff, exh B). A Newsday story, dated October 27, 1993, reported
that the VA hospital's chief of staff maintained that there was no increase in
the "rate of complications...during Swango's tenure" and that as a first year
resident, he had no "independent patient responsibilities." However, the story
did close with the information that the Stony Brook dean wrote to every medical
school dean in the country warning them about Swango; it also listed a phone
number for anyone "with concerns about the Swango case."
4. (def aff, exh D). In Ohio, The Columbus Dispatch on
October 17, 1993 ran a story relating to suspicious deaths at the Ohio State
University Hospital and Swango's possible involvement.
5. (id.). The St. Louis Post Dispatch of October 29, 1993
reported on Swango's firing at Stony Brook and mentioned two suspicious
incidents at the Northport VA Hospital: a patient who said he had seizures
after coming under Swango's care, but had no history of seizures; and a patient
who lapsed into a coma after Swango sedated him. The St. Louis paper went on to
report that these two accounts were announced the day after Stony Brook
officials "said no harm had come to any of the 147 patients Swango treated."
The St. Louis paper added that Swango used an alias, "Kent"; they likely meant
6. (id.). The Cleveland Plain Dealer, November 9, 1993 led its
account by describing a deepening of suspicions around Swango when "a patient
[Barron Harris] under his care died at a Long Island, N.Y., veterans
hospital...Authorities are treating the death as a criminal case." The story
stated that Harris' wife had filed a civil lawsuit a few weeks before on October
The Plain Dealer
mentioned that two lawsuits had been filed in the New York State Court of
Claims; one was the Harris claim, the other claimant was "Andrew Woods, a
41-year old Vietnam veteran, who has been released from the hospital. Woods
claimed medications Swango ordered caused him to suffer seizures..."
7. & 8. (def aff, exh D). Advancing four years, two articles from the
New York Daily News, July 26 and July 29, 1997, described Swango's arrest at
O'Hare airport by U.S. authorities in connection with lying on his application
to the Stony Brook program, and reported that he was wanted for questioning in
connection with the deaths of five patients in the nation of Zimbabwe.
9. & 10. (id.). ABC's Good Morning America broadcast of
November 17, 1997 contained a clip of an ABC 20/20 program from 1986
showcasing an interview with Swango while he was serving his prison term. The
1997 broadcast presented an interview with author James Stewart about his
article in The New Yorker which became a book on the Swango case.
ABC's 20/20 broadcast from March 1998, rebroadcast on August 1, 1998,
spent a substantial portion of its time on events in Illinois and Ohio, but also
aired an interview with the wife of Barron Harris, who believed Swango was
responsible for her husband's death. According to the broadcast, the Suffolk
County medical examiner performed an autopsy and ran toxicological tests, but
found nothing to incriminate Swango. It was not clear what newspaper was being
referred to in the ABC narrator's voice-over: "So Elsie Harris knew nothing
about Swango's past until he was fired and the truth hit the papers." Ms.
Harris: "And his picture, right on the front page."
The August rebroadcast reported that following its original broadcast in March
of 1998, Swango was sentenced to 42 months in prison for lying about his past to
Thus, going into the year 2000, the media coverage of Michael Swango was a
mixed bag as to its likelihood of reaching the Siano family and putting them on
notice that he was a killer, not just a con man, or for that matter, an ex-con.
Defendant cites In re Pfohl Bros. Landfill Litig., 68 F Supp 2d 236 (WD
NY 1999) to establish that public knowledge can be imputed to a plaintiff, but
that case is distinguishable. Pfohl involved a large landfill in the
vicinity of plaintiffs' residences or workplaces, which early on was marked off
with warning signs and included in a New York State joint departmental report
entitled Hazardous Waste Disposal Sites.
The family of Siano would not reasonably have been placed on notice that Swango
had murdered George Siano. The Harris lawsuit was of course public information,
but not widely available.
In fact, on October
26, 1993, following Swango's firing, the medical center's dean at Stony Brook
stated in writing:
During his three-month stint at the VA, Dr. Swango's patient care team, which
was comprised of two residents, one student and an attending physician, was
responsible for the care of approximately 147 patients (Cl aff, exh L)...As is
the case with all residents in training, Swango's patient care activities were
closely and contemporaneously supervised by the teaching attending staff
assigned to the team of which he was a part...the VA is in the process of
re-examining the charts of every patient cared for by the team that Swango was
on. This review has, thus far, revealed nothing that would lead us to conclude
that any patient was harmed. (Cl aff, exh K, p.2).
A similar response, credited to VA hospital officials, was reported in the
November 9, 1993 Cleveland newspaper: "Officials at the VA hospital last month
insisted Swango was constantly supervised and no harm befell any of the 147
patients he treated." (Def aff, exh D).
At the same time, the Stony Brook dean sent a letter to the 125 medical schools
and over 1500 teaching hospitals in the United States "about Michael Swango's
history and warning them that he may yet again attempt to con his way into a
residency program of some kind" (cl exh K, p.2). No letter was sent to any
patient of Swango's. Siano was age 61 when he died, and was already
hospitalized there when Swango appeared at the Northport VA hospital.
The survivors of a family member who die in a hospital would not immediately
conclude or suspect that the patient had been murdered by one of his doctors
without some clear nexus.
Siano's stepdaughter and executrix, swore in her affidavit that at the time of
[M]y family and I were advised that my stepfather died as a direct result of
complications of cancer. We were advised that his heart simply stopped...we
were unaware that he had been poisoned by one of his own doctors...we were not
aware that as a result of the epinephrine poisoning, he suffered from increased
blood pressure, increased heart rate, a loss of motor control, paralysis or loss
of muscle function... On July 5, 2000, the Federal authorities advised me and my
family for the first time that the medical tests performed on my stepfather's
exhumed body revealed that he had been poisoned and had suffered the effects of
epinephrine poisoning. Never before had anyone provided us with any information
in this regard. [Conroy affid ¶¶ 4-6].
On the death certificate for Siano, dated July 26, 1993, a document which has
come to be known as the original death certificate, the cause of death was not
indicated. In September of 2000, a Medical/Burial Death Correction
Report and an Autopsy Report were filed by the medical examiner of Suffolk
County which indicated that the cause of Mr. Siano's death was "toxicity of
unknown drug or poison." (Cl aff, exh J). The Autopsy Report was dated
September 26, 2000, but the autopsy was performed a year and a half previously
on February 3, 1999. It took advanced testing and analysis techniques developed
by an outside, medical laboratory specializing in toxicology ("National Medical
Services") to examine the tissue specimens taken from the exhumed body. The NMS
laboratory isolated a commonly used hospital compound, the heart stimulant,
epinephrine. NMS, in a statement it released on September 13, 2000, described
the substance as "previously undetectable" (Id., exh N).
In view of the foregoing, having considered the submissions of the
IT IS ORDERED that defendant's motion
(M-63804) be denied
June 28, 2002
HON. ALAN C. MARIN
Judge of the Court of Claims
Reflected in §10.7 of the Court of
Claims Act, which was enacted with §214-c by Chapter 682 of the Laws of
1986. Claimant argues that §10.7 expands §214-c (cl brief, Point I);
defendant responds that §214-c is narrowed by §10.7 (def reply aff
See Simcuski v Saeli
, 44 NY2d 442, 406
NYS2d 259 (1978), which, under different circumstances, upheld the application
of the fraud limitations period to a physician's intentional concealment of his
Exhibit E of defendant's papers is the claim
made in this Court, dated October 27, 1993, by Elsie and Barron Harris; at the
time Mr. Harris was still alive. It maintained that Barron Harris "sustained
serious personal injuries, including seizure while under the care and treatment
of...Swango.." The claim had no detail as to how such happened, arguing simply
that Stony Brook should have known Swango was a convicted felon and not hired
him, and thus Harris would have been treated by another doctor, etc. The Harris
claim did not assert that intentional, hostile acts were undertaken by Swango.
Nor was any subsequent order or decision submitted, in the case at bar, except
the July 29, 1997 Daily News
article, which reported that the Harris
case was dismissed (def exh D).
That same 1997 article noted, "some of
Swango's patients, one of whom subsequently died [Harris], allege they had been
As indicated, Swango falsely placed a Do Not
Resuscitate instruction on the medical records. There is no proof the family
was immediately aware of this fact.
On behalf of the defendant: Notice of Motion
and Affirmation in Support containing exhibits A through E; Memorandum of Law;
and Reply Affirmation. On behalf of the claimant: Affirmation in Opposition
containing exhibits A through Q, and affidavit by Roselinda Conroy; and
Memorandum of Law.