New York State Court of Claims

New York State Court of Claims

RUGATO v. THE STATE OF NEW YORK, #2002-016-068, Claim No. 103498, Motion No. M-63803


Synopsis



Case Information

UID:
2002-016-068
Claimant(s):
MARIA RUGATO, Individually and as Administratrix of the Estate of ALDO SERINI, 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:
RUGATO
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):
103498
Motion number(s):
M-63803
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, at the Veterans Affairs Medical Center at Northport, New York, he "intentionally murdered Aldo Serini...by administering injections of one or more toxic substances that caused respiratory failure on or about September 23, 1993..."(Cl affirm in opp, exh E, p 3).

Swango, on July 1, 1993, had begun a four-year 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 Serini was served on the defendant December 1, 2000; the notice of intention to file a claim had been served on it October 3, 2000. Defendant here moves to dismiss the claim as being barred by the statute of limitations. Defendant points to the claim's list of injuries Serini 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 affirm, exh E, ¶6; def brief, pp3-4).

In the September 6, 2000 agreement, Swango additionally pled guilty to the murders in 1993 of George Siano and Thomas Sammarco, who were also patients at the VA hospital in Northport. Representatives of Siano and Sammarco filed suit in the year 2000 in this Court, and the State of New York in each case moved to dismiss on the statute of limitations grounds.

The three cases are connected, and I have decided them together. For our purposes, the pertinent facts and circumstances are the same in this case as in Siano's (M-63804), except as otherwise set forth herein. As the above-quoted plea agreement indicates, Serini died September 23, 1993, nearly two months after Siano's death. Swango injected Serini with potassium, a different drug than he used on the other two patients.[1]

Serini's 1993 death certificate states that the immediate cause of death was cardiopulmonary arrest as a consequence of colon cancer (cl exh I). Maria Rugato, Serini's sister and administratrix, swore in her affidavit that at the time of her brother's death:
My family and I were advised ... that he died as a direct result of colon cancer. We were advised that his heart simply stopped...we were not aware that he had been poisoned by one of his own doctors, "Dr. J. Kirk" a/k/a Dr. Michael Swango. We were not aware that as a result of potassium poisoning, he suffered from increased blood pressure, increased heart rate, loss of motor control, loss of muscle function or suffered from paralysis...On July 5, 2000, the Federal authorities advised me and my family for the first time that the medical tests performed on my brother's exhumed body revealed that he had been poisoned and had suffered the effects of potassium poisoning. Never before had anyone provided us with any information in this regard. [Rugato aff, ¶¶ 5 -7].
***
The arguments of the parties in this matter are the same as were made in the Siano case; their submissions virtually identical. Any differences in the facts and circumstances here from those of the Siano matter are not material and do not affect my conclusion.

In view of the foregoing, having considered the submissions of the parties,[2] IT IS ORDERED that defendant's motion (M-63803) be denied.


June 28, 2002
New York, New York

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




[1] Claimant's motion papers contain a statement on the Swango murder pleas from an outside medical laboratory specializing in toxicology, which analyzed tissue specimens from the exhumed bodies of Serini, Siano and Sammarco (cl exh N, from National Medical Services). It says the compounds isolated included epinephrine (found in Siano's body) and succinyl choline (found in Sammarco) and describes them as commonly used in hospitals. No specific mention is made of potassium and whether it has a medical use where appropriate.

[2] 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 Maria Rugato; Memorandum of Law.