New York State Court of Claims

New York State Court of Claims

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.

Case Information

PAUL I. KROHN, as Trustee of the Estate of HARRY PARKER, acting as Administrator of the Estate of CURTIS PARKER
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:
Neil H. Greenberg, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Michele M. Walls, AAG
Third-party defendant's attorney:

Signature date:
June 29, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

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 Parker).
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 1).
Fulton Correctional Facility, with a minimum security classification, is located
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 HIV-positive[1]
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 since 1993.
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.
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 them.
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 p.m.[2], but was unsure of whether they were RN's or LPN'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 use.
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 Isoniazid.[3]
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 actively.
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.
PJI 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 York, 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. [4]
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 else until
8 p.m.
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 upstate again.[5] 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 suicidal behavior.
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 Authority, 307 AD2d 694, 763 NYS2d 162 (3d Dept 2003); PJI 2:70).
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 (
PJI 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. Parker.
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
dismissed. All motions that have not previously been ruled upon are hereby denied.

June 29, 2004
New York, New York

Judge of the Court of Claims

[1] (Cl exh 10, see 2d page dated October 13, 1993).
[2] 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).
[3] 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).
[4] 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 facility.

[5] There was no specific testimony of what the nature of his sentence would be as a consequence of the violation.