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).
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
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
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
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
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
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
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
, 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
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: