KROHN v. THE STATE OF NEW YORK, #2004-016-034 , Claim No. 94817
Delay in taking inmate to hospital not the proximate cause of his death from
prescription drug overdose.
PAUL I. KROHN, as Trustee of the Estate of HARRY PARKER, acting as Administrator of the Estate of CURTIS PARKER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Neil H. Greenberg, Esq.
Eliot Spitzer, Attorney GeneralBy: Michele M. Walls, AAG
June 29, 2004
See also (multicaptioned
This is the decision following the trial of the claim arising from the drug
overdose and death of Curtis Parker while in the custody of the State Department
of Correctional Services (DOCS). For ease of reference, the term "claimant"
will be used to mean Curtis Parker, and, similarly, "Parker" refers to
Curtis Parker (not to his brother, Harry Parker, or his sister, Pauline
On November 30, 1994, Mr. Parker, who had been incarcerated at Gowanda
Correctional Facility in Erie County, was transferred to the Fulton Correctional
Facility to participate in the work release program.
Under work release, Parker was permitted to live with a relative, while
remaining subject to supervision by a parole officer. On these terms, claimant
resided with his brother, Harry Parker.
A parole officer, on a routine visit to Harry Parker's home on December 17,
1994, learned that Curtis Parker had moved out to a nearby
motel. The officer, who had determined that Parker was in violation of the
terms of his parole and work release, went to the motel on December 19 and
brought Parker back to the Fulton facility that day. As was the procedure in
such situations, once back at Fulton, claimant was placed in its restrictive
unit pending an investigation and hearing. (See cl exh
Fulton Correctional Facility, with a minimum security classification, is
in a seven-story building at 1511 Fulton Avenue in the Bronx. According to the
testimony of Correction Officer Demetrius Bobo, as of late 1994, essentially all
of Fulton's inmates were on work release. He explained that the facility at
that time held five- to six-hundred general population inmates; with the
inclusion of "day reporting" inmates, the total was about a thousand. The
restriction area, which housed some 30 inmates in five or six rooms on the sixth
floor, was "primarily for inmates that committed violations, misbehavior, being
out of bounds, out of place . . . supposed to go to work and not gone to work,
not turning in your paycheck to your counselors, not seeing your counselors when
you're supposed to, being late an excessive number of times."
Parker, who had been diagnosed
and with asthma at the time of his transfer to Fulton, had been prescribed two
medications: Isoniazid, an antibiotic, for a persistent cough in October 1994
(cl exh 10), and Theophylline, known commercially as Slo-Bid, for his asthma
Two days after claimant's return to Fulton, on December 21 at 10 a.m.,
claimant's mother telephoned and explained to a facility official that her son
was in restriction and required his medication. The facility's on-call
physician, Dr. Kobkiert
Chukiert, was informed, and the prescriptions were called in to the off-site
contract pharmacy, which prepared a 30-day supply of each - - 24 tablets of
Isoniazid and 60 tablets of Theophylline, both in 300 mg dosages. The two
bottles were picked up later the same day by a correction
Officer Bobo testified that on December 21, he had worked a 3 to 11 p.m. tour
of duty. At about 3:30 p.m, the officer recalled
that Parker had come to him, said he had not received his medication and asked
Bobo to check on it. The officer testified that after "getting settled," he
called the watch commander (a Sgt. O'Connor), who indicated that he knew of the
situation and would get back to Officer Bobo.
Bobo described Parker as "upset"
when he initially inquired about his medication. The officer explained what
happened next, some 20 minutes later at about ten to four:
At that time he came back. There was a table in the hallway about the length of
the table that you're sitting at, and he was quite upset at the time, and he
banged his hands, his fist on the table, requesting his medication . . . he was
very agitated, but I didn't take it as . . . a harmful threat or anything like
that. I just knew he was upset about not receiving his medication.
Officer Bobo notified his supervisor of the incident and claimant was placed in
one of the two isolation cells
situated right behind the officers' desk in the restriction area. Each cell was
a room with a door that locked, a viewing window on the door, a sink and
toilet. Bobo testified that Sgt. O'Connor came to the area and gave claimant
his medications, but that he never saw Parker ingest
Mark Matthews, who had been the deputy superintendent for administrative
services at Fulton Correctional Facility from 1992 to 1999, also took the stand
at trial. Deputy Mathews' office was on the second floor, and on December 21,
1994, he was there from 8 a.m. to 4 p.m., but as the officer of the day, was
available on a 24-hour basis via beeper.
Deputy Matthews testified
that before he left work that day, between 3:30 and 4 p.m., he had a
conversation with Mr. Parker, and asked him if he had received his medications.
Claimant responded in the affirmative.
Matthews at first testified that
Parker went into isolation later that evening, but upon looking at the daily log
(cl exh 5)
conceded that claimant had been there since 4 p.m.
There is no evidence of communication between Parker and anyone else until 8
o'clock that evening when claimant asked Officer Bobo if he could speak to him
in private and then told him that he had taken all of the two dispensed
prescriptions. Officer Bobo called Sergeant O'Connor to inform him; Bobo
described his call to O'Connor as asking for "immediate medical care."
There was not a full-time medical staff at Fulton, and Officer Bobo did not have
the authority to call an ambulance on his own, as Sgt. O'Connor did.
Sgt. O'Connor arrived at the restriction and isolation area at 8:12 p.m. (cl
exh 6) and found claimant
sitting on the side of the bed crying. He questioned Parker who
repeated that he had swallowed the contents of both bottles and gave O'Connor
the two empty bottles. Deputy Mathews was contacted at 8:38 p.m. and at 8:40,
Parker was put on what the log book called "a suicide watch" and what Deputy
Mathews called a "one-to-one," maintaining that such was not necessarily a
suicide watch. Deputy Matthews explained his decision as follows:
Well, at that particular time, we had no proof that he had taken the bottle [s]
of medicine. You know, he could have dumped it in the toilet. He could have
dumped it somewhere, and so there was really no proof that at that time that he
had taken the whole bottle [s] of medication. Therefore, I put him on a
one-to-one watch with the officer so that the officer could watch him . . . and
if anything was wrong with him, you know, if he lost consciousness, whatever, to
call 911 and have an ambulance called to the facility to pick him up - -
At 8:40 p.m., Officer Bobo
reported to the sergeant that Parker was vomiting, and a few minutes later was
convulsing and foaming at the mouth. Sgt. O'Connor called an ambulance (EMS) at
8:45 p.m., which arrived at 9:05 and left with Parker at 9:15 p.m. Claimant was
taken to Lincoln Hospital, where he remained until his death two weeks later,
on January 5, 1995 (def exh A).
Dr. Kobkiert Chukiert, a DOCS physician who was assigned to Fulton Correctional
Facility two afternoons a week,
testified via deposition as to the facility's limited on-site medical
facilities. There was no infirmary at Fulton, and no beds set aside for sick
patients; there was no ability to suture wounds or to handle an overdose with
any kind of stomach pumping. Dr. Chukiert was the only physician at Fulton; he
believed that nurses were on duty five days a week from 9 a.m. to 5
, but was unsure of whether they were RN's
Dr. Chukiert had the use of an office at Fulton, and as for medical equipment
and supplies, had a stethoscope, a scope for the ears and eyes, and some
over-the-counter medication. When asked about his responsibilities at Fulton in
1994, Dr. Chukiert responded that the
"main thing is [to] renew prescription[s] that inmate[s] had from Upstate where
he came from." Fulton no longer had a pharmacy on premises, and prescriptions
were filled at the neighborhood drugstore.
For the few days Mr. Parker was at Fulton Correctional, Dr. Chukiert did not
see him. Chukiert, when asked a hypothetical question about ingesting 24
tablets of Isoniazid and 60 of Slo-Bid
and whether the effects could be interrupted by the impact of gastric lavage
(stomach pumping), answered that each situation was different, but that he had
never seen a case that was not done in a timely fashion. The doctor's testimony
on this matter was too general and unmoored from the facts to be of any
The only witness to testify about the scientific /medical aspects of the
overdose was Jesse Bidanset, a Ph.D. in Chemistry, with extensive experience as
a toxicologist. Dr. Bidanset was chief toxicologist for the Nassau County
Office of the Medical Examiner from 1971 to 1979, which slightly overlapped with
his service as forensic toxicologist with Orange County from 1974 to the
present. Bidanset has been an outside consultant on toxicology since 1971, has
lectured on the subject and is widely published in the field.
Dr. Bidanset testified that Slo-Bid is one of the commercial names for the
Theophylline product in a time release form. According to Bidanset, it was the
Slo-Bid that poisoned claimant, not the antibiotic, Isoniazid. Nor did the
autopsy report, issued by the Office of the Chief Medical Examiner of the City
of New York, which is claimant's exhibit 3, attribute fatal effect to
Dr. Bidanset explained that Slo-Bid is a gelatin capsule, which:
contains a number of beads of drug which are coated with a material that delays
the absorption of the substances. So it is a two-step process that occurs with
the Slobid. The first being that the gel capsule dissolves and the beads are
released from - - from that capsular material. Then the - - the beads
themselves are resistant to the conditions in the stomach and we - - we have
very little, if any, activity that is generated in the stomach contents. Only
after these beads are released from the stomach and enter the GI, gastral
intestinal tract . . . do they have an opportunity to achieve a [PH] where they
will dissolve . . . and where the material can then be released and absorbed
Dr. Bidanset added
that such a time release drug requires "something on the order of three to four
hours before they actually begin to be actively absorbed." It is undisputed
that Curtis Parker began vomiting at about 8:40 p.m. and minutes later was
convulsing and foaming at the mouth. Dr. Bidanset concluded that based on those
symptoms, claimant must have ingested the Slo-Bid three to four hours before the
symptoms. According to Bidanset, had claimant taken the Slo-Bid at 8 p.m. and
vomited 40 minutes later, he would have expelled granular material because the
drug cannot be dissolved or digested in such a time span.
Defendant put no witness on the stand to challenge Bidanset's conclusions; nor
did the medical records (cl exhs. 10 & 14; def exh A
) or the autopsy report do so ( cl exh 3).
To this trier of fact, Dr.
Bidanset was a credible witness whose
conclusions that Slo-Bid was the
operative drug and was taken much earlier that day were highly persuasive.
The defendant State of New York owed Curtis Parker the same duty it owed any
other individual: to use that degree of care that a reasonably prudent person
would have used under the same circumstances.
2:10. Citizens that are incarcerated are accordingly owed a duty to
be provided reasonable medical care by the State. Kagan v State of New
, 221 AD2d 7, 646 NYS2d 336 (2d Dept 1996).
When Parker reported that he had ingested all his medication (which defendant
knew he had obtained a few hours earlier) and displayed the empty bottles, given
what was at stake, defendant should have immediately called an ambulance. The
wait-and-see reaction of the Fulton administrative staff
was clearly a failure of due care.
As to whether Mr. Parker should
have been given a 30-day supply of Slo-Bid (and Isoniazid), claimant could point
to no rule or practice that was violated; Officer Bobo and Deputy Matthews both
testified that Fulton residents, including those in restricted or isolated
status, could receive such a supply.
Parker, like all other inmates
placed in work release, was evaluated mentally and physically to establish his
eligibility therefor. He had not been under treatment from a mental health
professional, was taking no medication related to a mental health condition and
had no history of either such medication or treatment, including any history of
suicidal acts or threats.
Claimant contends that defendant should have known that suicide was a
possibility once he was subject to parole violation and return to a medium
security correctional facility upstate. No evidence was presented of anything
Parker said or did when parole-violated that showed distress - - other than his
pounding on the table in the afternoon of December 21, which claimant announced
was because he had not received his medications. Once he got them at around 4
p.m., there is no record of Parker saying or doing anything that alerted anyone
Claimant's sister, Pauline Parker, testified on cross-examination that when she
saw claimant in December of 1994, she noticed nothing that gave her the
impression that he was depressed or suicidal. On redirect, Ms. Parker explained
that claimant had communicated to her his fears of going back to prison just as
his release date was coming up and he was aware that he could face a longer term
But no proof was offered that
this was ever communicated to any employee of the defendant; in fact, according
to Ms. Parker, this information was elicited at the hospital from claimant after
the overdose. When claimant's brother went to the motel after claimant's death
to collect his effects, he found in Curtis' trousers a note that "he was afraid
of something and it was threatening - - some sort of threatening going on or
something to that effect." No additional detail was supplied; the note was not
produced and there was no offer that the note, or the sentiments behind it, were
conveyed to the staff at Fulton Correctional Facility.
Claimant relies upon Arias v State of New York
, 195 Misc 2d 64, 755
NYS2d 223 (Ct Cl 2003), which also involved a fatal overdose in a correctional
facility, but is quite different from the case at bar.
The inmate in
that case, William Newborn, had a decade-long history of mental health problems,
treatment dating back to 1985 and had a dual diagnosis of Bi-Polar II Disorder
and Hypomanic & Antisocial Personality Disorder. Several weeks before he
overdosed, Newborn told a social worker that if he was denied parole, which he
was later that month, he would attempt suicide. Seen by a DOCS psychiatrist
five days later, Newborn admitted past suicidal ideation, but denied any future
intention to do so, although he continued to report unstable mood swings. At
trial, claimant called an expert psychiatrist who concluded that there had been
a "likely possibility" that Mr. Newborn would engage in self-harming, if not
Having concluded that defendant did not know or could not have known that
Curtis Parker was a suicide risk (
Gordon v City of New York
, 70 NY2d 839, 523 NYS2d 445 (1987)), a
failure of reasonable care did not obtain when it supplied him with a 30-day
supply of his medication (even in restriction or isolation), but such a failure
did occur when the Fulton staff did not immediately call an ambulance following
Parker's report of his overdose. However, for the State to be liable in
negligence for its acts or omissions, such must be the proximate cause of the
tragedy that befell Mr. Parker, i.e.
, a substantial factor in bringing
about the injury (Butler v New York State Olympic Regional Development
, 307 AD2d 694, 763 NYS2d 162 (3d Dept 2003); PJI
This case comes down t
o whether the failure to summon an ambulance immediately and the corresponding
delay in medical treatment was the proximate cause of the tragic death of Curtis
Parker. Assuming as claimant does, that the delay in summoning help was 45
minutes (Cl Brief, p 7), from Parker's first reporting it to Officer Bobo at 8
p.m. until the 8:45 p.m. call to EMS, would he have survived if had he arrived
at the hospital 45 minutes earlier? Dr. Bidanset, who answered in the negative,
was unchallenged by any other witness; claimant called no medical or scientific
expert; nor did any of the medical records in evidence, including the autopsy
report, undermine Bidanset's conclusion (cl exhs 3, 10 & 14; def exh A).
Dr. Bidanset's explanation - - based upon a knowledge of the substances
involved and a detailed grasp of the laboratory data - - of the process by
which the body absorbs the capsules and which specific external effects reflect
a particular stage, made his conclusions, to this trier of fact, highly credible
1:90). As noted earlier in the chronology of the events of December
21, 1994, I accepted Bidanset's conclusion that the Slo-Bid was ingested three
to four hours before Parker began convulsing and vomiting: "[T]he absorption
process would have to take place before you could have convulsive activity, and
so we're talking about three or four hours after ingestion before you would
expect to see these side effects." Slo-Bid, Dr. Bidanset explained, is absorbed
in the small intestine; stomach pumping would not have been able to save Mr.
At the hospital, charcoal was administered; Dr. Bidanset indicated that the
activated charcoal or carbon can reduce the amount of the drug that will
actually be absorbed into the blood stream. But Bidanset concluded that in this
dosage, in its time-release capsule form,
"although the charcoal may reduce the amount slightly, it is not an
effective tool for removing the Theophylline [Slo-Bid]."
Curtis Parker's death was tragic. However, the basic principles of negligence
law and the evidence presented control, and I therefore conclude that claimant
has failed to meet his burden in proving that negligent acts or omissions of the
defendant were the proximate cause of Mr. Parker's death; the claim brought on
his behalf (claim no. 94817) is
. All motions that have not previously been ruled upon are
LET JUDGMENT BE ENTERED ACCORDINGLY.
June 29, 2004
HON. ALAN C. MARIN
Judge of the Court of Claims
(Cl exh 10, see 2d page dated October 13,
The Final Report of the Commission of
Correction had the hours of the medical staff at 8 a.m. to 4 p.m. (cl exh 1, p
3, item 7).
According to the Report of Autopsy performed
on January 6, 1995, "Cause of Death: I. Bilateral bronchopneumonia due to
acute theophylline intoxication. II. Acquired Immunodeficiency infection." (Cl
exh 3, p 1).
Dr. Chukiert, whose recollection was
uncertain, did not think they self-medicated. Claimant's exhibit 11 covers a
transitional supply of medication from the sending facility to a work-release
There was no specific testimony of what the
nature of his sentence would be as a consequence of the violation.