New York State Court of Claims

New York State Court of Claims

CONROY v. THE STATE OF NEW YORK, #2002-016-066, Claim No. 103497, Motion No. M-63804


Synopsis



Case Information

UID:
2002-016-066
Claimant(s):
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.
Claimant short name:
CONROY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper defendant in this Court is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103497
Motion number(s):
M-63804
Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Gottlieb & NitkewiczBy: Edward J. Nitkewicz, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Katharine S. Brooks, AAG
Third-party defendant's attorney:

Signature date:
June 28, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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.[1] 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 fraud.[2] 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 ii).
***
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 "Kirk."

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 27, 1993.

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 Stony Brook.
***
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.[3] 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.[4] Roselinda Conroy, Siano's stepdaughter and executrix, swore in her affidavit that at the time of Siano's death:
[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 parties,[5] IT IS ORDERED that defendant's motion (M-63804) be denied.


June 28, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



[1] 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 ¶7).
[2] 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 alleged malpractice.

[3] 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 poisoned."


[4] 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.


[5] 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.