New York State Court of Claims

New York State Court of Claims

MEDINA v. THE STATE OF NEW YORK, #2002-031-501, Claim No. 98788


State properly segregated inmate for refusing anti-TB medication. Inmate's claim for illegal confinement dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: LESLIE STROTH, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 8, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Jose Medina ("Claimant") filed Claim No. 98788 on August 10, 1998, against the State of New York, claiming wrongful imprisonment. I conducted a trial on September 18, 2001, at Wende Correctional Facility ("Wende").

Claimant requested the assistance of a Spanish interpreter. Mr. Sergio Vasquez, a counselor at Wende, was appointed for this purpose and sworn in at the commencement of the trial. In addition, I conducted a colloquy regarding Claimant's understanding of the law related to the confidentiality of an inmate's HIV status and his right to have that information kept confidential. I explained to him that, by proceeding with his claim against the State of New York, he would most likely be waiving his right to keep his HIV status confidential. Claimant stated on the record that he understood what I had said to him and that he was willing to waive his right to confidentiality in order to proceed with his claim.
Claimant's case involves the interpretation and application of Health Services Policy Item # 1.18 "Tuberculosis" (" the Policy"), which was promulgated by the Department of Correctional Services and dated May 20, 1996. The Policy exists to prevent, detect, contain and treat tuberculosis ("TB") in the prison system. (Policy II). All inmates are screened for TB upon admission and then are tested annually thereafter. The Policy requires the use of the Mantoux PPD test ("PPD test") to screen for TB. If an HIV postitive inmate's PPD test is negative, that inmate must undergo anergy testing as well. Anergy testing will then occur annually. (Policy IV.A.1).[1]

According to the Policy, an inmate who is HIV positive and anergetic may be housed in the general population of a DOCS facility if he undergoes a course of treatment designed to prevent the development of active TB. The Policy refers to this as preventive therapy and designates INH as the drug of choice. INH is to be administered two times each week along with a Vitamin B-6 pill. HIV positive inmates whose PPD test results are positive or who are anergetic receive the preventative therapy for 12 months. (Policy VI.B.4.a).

Preventive therapy will not be administered until the inmate has been interviewed and examined for TB. This may require chest x-rays and sputum smears and cultures. (Policy VI.B.3.a). The Policy acknowledges that some inmates who are HIV positive and anergetic may not be capable of sustaining the preventative therapy. For example, an inmate over the age of 35 and who suffers from a pre-existing liver disease may not be a good candidate. The therapy can be used in this situation, but it requires that the inmate's liver function be monitored for INH toxicity. (Policy VI.B.3.b).

Claimant testified that one of Defendant's doctors asked him to take part in an experimental course of preventative TB treatment for six months. Claimant understood that the treatment could be "toxic" to his liver, but that the doctor would monitor his liver function with continuing blood tests. Dr. John Cetin, a Collins Correctional Facility doctor, testified that Claimant was given a pre-medication blood test on April 21, 1997, that showed elevated liver enzymes. According to Dr. Cetin, it was appropriate to start the preventative TB treatment despite the elevated liver enzymes, provided they continued to monitor liver activity. Dr. Cetin testified that Claimant began taking the INH and vitamin B-6 pills two times each week (Sunday and Wednesday) in May 1997.

Claimant states that the doctor "hid" information from him because the doctor never told Claimant that Claimant had a pre-existing liver condition. Claimant stated that the treatment was inappropriate because of his liver condition and that the treatment "could have killed me" if he had not refused the medication. Per facility policy, an inmate on this course of treatment will have his liver activity monitored with a blood test every two months. If the enzymes go up to 3 to 5 times the normal level, the medication is stopped. Claimant was given his first posttreatment blood test on June 5, 1997. The test indicated that Claimant's liver enzymes were down, meaning that Claimant was experiencing an improvement in the condition of his liver.

Claimant testified that the first time he stopped taking the medication was in September 1997, when he began to experience "reactions" to the medication, including pain in his liver, dizziness, and nauseousness. Claimant states that he saw Dr. Gallindo, another facility doctor, at this time and had lost 11 pounds over a six month period. Claimant also states that he had a "low blood count" at this time, although he did not become aware of that fact until later. The nurse's note in Claimant's medical record on October 1, 1997, indicates that Claimant refused to take the medications on that date, that Claimant signed the refusal form, and he then filed a grievance.[2]
Claimant wrote on the form that he refused to take the medication because it made him lose weight. The October 1, 1997 refusal was marked as Defendant's Exhibit B and accepted into evidence.
Dr. Cetin testified that Claimant's medical records were devoid of any mention of ill or secondary effects from the medication for the month of September 1997. The notes from Dr. Gallindo on September 26, 1997, indicate that Claimant's admitting weight was 149 pounds and that on September 26, 1997, when Dr. Gallindo examined Claimant, Claimant weighed 146 pounds. Dr. Gallindo noted that Claimant was on a diet of solid foods with the dietary supplement Ensure.

Claimant again refused to take the medication on October 5, 1997, and signed a refusal form stating that it not only made him lose weight, but it also caused more problems with his liver. The October 5, 1997 refusal was marked as Defendant's Exhibit C and accepted into evidence.

Claimant testified that on October 6, 1997, a unit officer instructed him to go to the facility infirmary. When he got there, he was placed in a room with several correction officers and a facility nurse, Nurse Sweda. Claimant states he was "harassed" by these individuals about taking the medication while they proceeded to lock him up in the infirmary. Claimant testified that he was then sent to the Respiratory Protective Unit ("RPU") because he had TB. Defendant's agents tested Claimant again for TB and the results were negative.

Claimant allegedly tried to explain that, because he was over the age of 35 and the medication was toxic to his liver, the doctors were supposed to stop the treatment immediately pursuant to the Policy. Claimant testified that he was relying on the Policy to support his position that he did not have to take the medication. Claimant states that he then was forced to speak to yet another individual, who happened to be a civilian, who tried to persuade him to take the medication. Claimant stated he was aware Defendant's agents wanted him to take the medication because he "was negative on the TB test." Claimant recalled telling the civilian that Defendant took chest x-rays that showed Claimant did not have TB and that Claimant even offered to undergo a blood test to confirm the fact that he was TB free. Defendant refused to administer the blood test. Claimant believed he did not need to take the medication because he did not have TB.

Claimant admits that he had been diagnosed as HIV positive sometime in 1985 or 1986 and that he understood that, because he was HIV positive, he was more susceptible to TB than someone who was not HIV positive. Claimant testified that he was confined in RPU for five days and only agreed to continue taking the medication based on verbal promises from the medical staff that his adverse reactions to the medication would be treated. Claimant states that he was also put on a special diet at this time. In Claimant's estimation, the diet was not appropriate and he stayed on it for just a few days.

Claimant's medical records corroborate his testimony to the extent that James Holzinski, the Infectious Disease Nurse at Collins, advised Claimant on October 6, 1997, that it was important for him to take the medication. In fact, it appears that several separate counseling sessions were held on October 6, 1997, in an effort to explain to Claimant the importance of taking his medication. In addition to Nurse Holzinski, Claimant met with several other health service professionals, each of whom was unable to persuade Claimant to take the medication. Dr. Cetin was notified of Claimant's continuing refusal to take the medication. Dr. Cetin then decided to isolate Claimant in accordance with the Policy. (Claimant's Ex. 2).

While in segregation, Claimant was counseled again about taking the medication and informed that, if he cooperated, he could go back to the general population. Claimant agreed to take the medication as long as he was given a high protein diet. Defendant's medical staff agreed to recommend the special diet even though DOCS policy did not require them to do so. The staff felt it was better to do that than run the risk of Claimant contracting TB.

Claimant's medical records indicate that on October 20, 1997, he was screened for hepatitis B and the results were positive. His medical record also indicates that this result was confirmed on December 3, 1997. Claimant stated that he did not know he had hepatitis until after he filed his claim with this court.[3]

On November 7, 1997, Claimant again refused to take his medication because he had blood in his urine. Dr. Cetin testified that blood in urine was not a side effect of Claimant's course of treatment. Claimant testified that he had been taking one INH pill and two B-12 vitamins on Wednesday and Sunday of each week. (Medical testimony referred to earlier in this decision shows that Claimant was actually taking B-6 vitamin pills.) He states that he began to experience pain and had blood in his urine. He states he told Dr. Gallindo, on November 7, 1997, that he needed a urine test. Dr. Gallindo refused to conduct the test and Claimant once again stopped taking the medication. He was confined again, this time for 14 days.

During this time, Claimant met with a Counselor Keebles on November 18, 1997, regarding his situation. Claimant testified that he, Counselor Keebles, and the Deputy of Programming were able to work out an agreement with another facility doctor, Dr. Met, on November 20, 1997. Claimant described the agreement as a "contract" that was signed by him and the doctor providing that Claimant was to receive medical treatment for any secondary effects from the medication and would be given the nutritional supplement "Ensure."[4]
Claimant states he was released from the RPU that day.
Dr. Cetin was aware that Claimant signed a written agreement, on November 20, 1997, to take the medication as long as he received treatment for "secondary effects" and Ensure. Defendant's agents agreed to provide Ensure to induce him to take the medication. DOCS policy does not mandate that an inmate receive Ensure unless the inmate has either a 10% weight loss over a six month period or a 5% weight loss in one month. Claimant did not qualify for the mandatory Ensure supplement.

Claimant, for the third and last time as it relates to this claim, stopped taking the medication on November 27, 1997, because Defendant did not live up to the terms of the November 20, 1997 "contract." That is, they failed to provide Claimant with Ensure on that date. The medical records indicate that the facility was out of stock. Claimant was once again confined to the RPU and kept there for 12 days. He states that this time he received a misbehavior report for his conduct.

Claimant did not call a medical expert and, at the close of Claimant's proof, the Assistant Attorney General moved to dismiss the claim on that basis. Claimant failed to offer expert medical testimony and, therefore, failed to demonstrate that he was the victim of medical malpractice.
Berger v Becker, 272 AD2d 565; Koehler v Schwartz, 48 NY2d 807; Lyons v McCauley, 252 AD2d 516, lv denied, 92 NY2d 814. However, the analysis in this case can not stop there. Claimant's theory is that, as a result of medical malpractice, he was inappropriately segregated from the general population. Proof of medical malpractice is not the only consideration in determining Defendant's liability arising from Claimant's segregation.
With or without medical malpractice, Claimant may have been unlawfully segregated. It is well settled that Defendant can be held liable in damages when it deviates from its own written policies in confining an inmate or limiting his privileges (
Arteaga v State of New York, 72 NY2d 212, 220-221; Gittens v State of New York, 132 Misc 2d 399, 406-407). Therefore, it is necessary to review the Policy in light of the Claimant's situation to determine if the claim has merit.
Claimant is HIV positive and tested negative on the PPD test. It was also determined that he was anergetic. On several occasions thereafter, Claimant refused to take the INH medication to prevent him from developing TB. The provision of the Health Services Policy that specifically addresses the grounds for placing an inmate in the RPU clearly sets forth what is to be done with an inmate in this situation:
Inmates who do not agree to prophylaxis and are HIV positive or have risk factors for HIV, will be placed in the Respiratory Protective Unit (RPU). Inmates that have no risk factors for HIV will be placed on tuberculin hold. (Policy IV.A.4.b).
Similarly, Claimant's reliance on the Policy in support of his arguments that he was not required to take INH due to his age and liver condition is misplaced. The portion of the Policy referred to by Claimant in support of his position actually states:
Advancing age (e.g., over 35 years old) and pre-existing liver disease are relative contraindications to INH therapy. These patients may safely receive the benefit of preventive therapy, but should have periodic chemical assessment of liver function during this therapy. If INH toxicity occurs and treatment must be discontinued, some benefit is obtained from even a partial course of therapy. (Policy VI.B.3.b, emphasis in original).

The decision to segregate Claimant was neither medical malpractice nor in conflict with the State's written policy concerning such matters. For these reasons, I find that the Claimant has failed to demonstrate that he was improperly imprisoned. The Claim is dismissed. The Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

January 8, 2002
Rochester, New York

Judge of the Court of Claims

[1]An inmate is anergetic if he fails to show a response to a test for Mumps and Trichophyton or Candida. The Policy specifies that this test is particularly important for inmates that are HIV positive. Policy I.F.
[2]It appears that Claimant filed one or more grievances in the fall of 1997. However, Claimant's Ex. 2, a FOIL Request for documents related to Claimant's Grievance COL II 6387-97, shows a filing date of October 20, 1997, regarding Claimant's refusal to take the preventative TB medication.
[3]Neither party offered expert testimony regarding whether or not it was medically sound judgment to place an inmate with hepatitis on the preventative TB medication.
[4]Claimant offered the "contract" as Claimant's Exhibit 1 which I accepted as evidence. I note that the document is handwritten, undated, and on DOCS letterhead. However, it is signed only by Claimant and not by any of Defendant's agents.