New York State Court of Claims

New York State Court of Claims

SHIELS v. STATE OF NEW YORK, #2006-015-540, Claim No. 105677


Claimant failed to establish by preponderance of the evidence that the State was liable in any respect for damages resulting from seizure of inmate with prior history of seizures.

Case Information

KEVIN SHIELS There are alternate spellings of the claimant's name. The name used here is the name used in the claim.
Claimant short name:
Footnote (claimant name) :
There are alternate spellings of the claimant's name. The name used here is the name used in the claim.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Beranbaum Menken Ben-Asher & Bierman LLPBy: Jason Rozger, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 27, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The claim herein asserts causes of action related to the care and treatment of the claimant while he was incarcerated. A bifurcated trial on the issue of liability was conducted in Albany on November 14, 2005.

Claimant's first witness at trial was Dr. Gerald Cahill who testified that he is a family physician in Malone, New York and has served as a part-time physician at Franklin Correctional Facility (Franklin) since 1998. He described the usual procedure for processing new inmates at Franklin as including an initial screening by a nurse. The nurse's notes are reviewed by a physician within a matter of days after the inmate's arrival.

The witness identified claimant's Exhibits 1-5 which were received in evidence without objection. Exhibit 1 was described as a document prepared at a facility other than Franklin. Exhibit 2 is a copy of claimant's intake screening at Franklin which notes,
inter alia, that claimant suffered seizures but was not taking medication to treat the condition at the time of the screening and, further, that he was assigned a bottom bunk based on a past history of seizures. Exhibit 4 is a copy of a nursing assessment form not signed by the witness but similar to the type of form usually reviewed by him. Exhibit 4 notes claimant's history of 20 years of petit and grand mal seizures and authorizes access to nursing sick call as needed. The Exhibit also indicates that the claimant was not then taking any prescription medication. Exhibit 5 is a copy of claimant's ambulatory health record prepared as part of his intake assessment at Franklin on October 22, 1999. The Exhibit indicates in the space provided for information regarding follow-up care required or other notable information "Seizure disorder per inmate Grand/Petit [Mal] post head trauma - No Rx.". Despite claimant's reported history of seizures the witness did not schedule claimant for treatment of his disorder. The witness averred that had claimant reported a history of recent seizures a treatment referral would have been appropriate.
Dr. Cahill also reviewed portions of the claimant's ambulatory health records dated October 25, 1999 and October 29, 1999 (claimant's Exhibit 7). He stated that the middle section of the document contains his handwritten notes regarding his examination of the claimant for a right- shoulder injury. The Exhibit does not show any medical evaluation or treatment of claimant for seizures on the above dates. The witness agreed that none of the Exhibits he reviewed while testifying indicate that claimant was specifically asked when he last had a seizure.

On cross-examination Dr. Cahill testified that he had only one meeting with the claimant prior to claimant's seizure on March 4, 2000 and that claimant's sole complaint at that time was shoulder pain (
see Exhibit 7). The witness's notes of that encounter make no reference to claimant reporting a history of seizures or requesting medication to avoid or control seizures. The witness explained that although Exhibit 1 mentions seizures and notes past use of seizure medication it is a nursing assessment form prepared at a facility other than Franklin and would not necessarily have been seen by him. Exhibits 2 - 4 are medical screening forms prepared by Franklin's nursing staff which the witness stated he also would not normally have seen. While Exhibit 4 notes a history of grand and petit mal seizures over a 20-year period it further notes that claimant was not taking seizure medication at the time of his assessment.
Claimant's second witness was Dr. Steven Spencer. Dr. Spencer testified that he is board certified in internal medicine and in 1985 became the Medical Director of the New Mexico Department of Corrections. In that capacity he participated, among other things, in the preparation of standards of care regarding inmate medical treatment. He was qualified as an expert witness without objection by defense counsel.

Dr. Spencer testified that when an inmate with a reported history of seizure disorder is received at a correctional facility it is standard practice in the industry to have a healthcare provider perform an initial health assessment.

Upon his review of the claim, various EBTs, claimant's health records (presumably Exhibits 1-5) and upon hearing Dr. Cahill's in-court testimony, the witness opined that the medical treatment claimant received at Franklin Correctional Facility failed to comply with the prevailing standard of care in the field of correctional healthcare because claimant did not receive a comprehensive evaluation of his health issues. It was his opinion that while the only evidence of prior seizures was the history provided by the claimant that alone was sufficient to trigger the need for a thorough medical evaluation.

On cross-examination Dr. Spencer acknowledged that he was being paid for his testimony and that he had prepared a medical care report (Exhibit F)[1]
without having seen or examined the claimant. Much of the witness's cross-examination focused on the documentation he considered in formulating his report. He acknowledged that the report covered events occurring at the Fulton County and Saratoga County jails which he was not aware, at the time he prepared the report, were local institutions and not facilities owned or operated by the State of New York.
Dr. Spencer was unable to explain the difference between partial complex seizures and pseudo-seizures referenced in a January 4, 1990 neurological consult referred to on page 3 of his report (Exhibit F). Nor could he interpret the conclusions of a June 21, 1990 report which stated that the results of an EEG performed on the claimant were "questionably abnormal". In both instances the witness stated that he was not a neurologist and was therefore unable or unqualified to explain and/or interpret the above entries.

The witness admitted that while at the Saratoga County Jail the claimant had seizures which were not controlled by the use of either Dilantin or Depakene. He acknowledged that Exhibits G, H and I, identified as records which the witness reviewed in formulating his report, contained no objective findings of seizures or neurologic impairment. Exhibit J was identified as a laboratory report of a blood test administered to claimant on October 13, 1999. The witness did not recall having seen Exhibit J prior to writing his report.

On redirect examination Dr. Spencer testified that Exhibits 1-5 are documents prepared at New York State Department of Correctional Services facilities. Although the witness examined claimant's entire available history he testified that the opinions stated in his report relate to medical care provided the claimant at Franklin Correctional Facility and not other State or local institutions. Regarding Exhibit 15 he stated that the physician's assessment prepared by the Saratoga Hospital Emergency Department indicates that claimant's Depakene levels were subtherapeutic and needed to be boosted to much higher levels.

On re-cross-examination Dr. Spencer admitted that Exhibit 15 is dated November 20, 1989, which is approximately 10 years and 3 months prior to the March 4, 2000 seizure involved in the instant claim.

Claimant took the stand and testified in substance that he has suffered from a seizure disorder since the mid-1980s. On September 16, 1998 he was arrested and confined in the Fulton County Jail. He does not recall the date of his last seizure immediately prior to that incarceration but does recall that he was not taking any seizure medication when he entered the Fulton County facility. Thirteen months later (October 5, 1999) claimant was sent to Clinton Correctional Facility (Clinton) for reception into the DOCS system. He was transferred to Downstate Correctional Facility (Downstate) for processing on October 12, 1999[2]
While at Clinton claimant was interviewed by a nurse in the medical unit. He informed the nurse that he had a seizure disorder and that he suffered numerous seizures while at the Fulton County Jail. In response, the nurse authorized a bottom bunk assignment for the claimant. The witness related that his last seizure prior to entering the state correctional system occurred in July 1999. No documentary evidence corroborates that assertion.

Claimant recalled that he was first prescribed seizure medication in 1985 while incarcerated at Lyon Mountain Correctional Facility. Although he purportedly requested medication while at the Fulton County Jail no such medication was provided. He then described the onset of a seizure as signaled by numbness on his left side and ringing in his ears after which he becomes incoherent and experiences nausea, vomiting and fatigue. The claimant related that he generally suffers major compound (grand mal) seizures during sleep.

On March 4, 2000 at approximately 5:00 a.m. claimant, who had not been provided any antiseizure medication, suffered a grand mal seizure while he was being housed at Franklin Correctional Facility. He recalled little if anything about that seizure. Thereafter DOCS medical personnel prescribed Dilantin and Depakote to control his seizures which he took in combination from March 4, 2000 until approximately one year ago. He now takes only Depakote for seizures. Claimant related that since March 4, 2000 he has had only one seizure which occurred on June 8, 2000 while he was confined in "a special housing unit". He testified that he was without access to his medication for nine days during the period of his SHU confinement and prior to the June, 2000 seizure.

On cross-examination claimant testified that he was incarcerated for cocaine possession in September 1998. Although he testified that he suffered nine (9) seizures at the Fulton County Jail, eight of which were allegedly reported to staff, none of the purported seizures were witnessed. Claimant filed a lawsuit against Fulton County for inadequate medical attention based on the alleged denial of proper medication to control seizures[3]
He reiterated his direct testimony that he does not recall when he suffered his last seizure prior to his September 1998 incarceration in Fulton County. Although claimant received antiseizure medication while incarcerated at Lyon Mountain in 1985 he reported that he stopped taking the medication upon his release yet suffered no further seizures during the period 1986-1989. In 1989 he was arrested for sale of cocaine and was incarcerated at Clinton Correctional Facility, Downstate and Oneida Correctional Facility where he allegedly suffered several seizures. It is not known if any of these purported seizures were observed or documented by DOCS personnel. Claimant testified that while out of custody during the period 1992-1994 he took no medication and suffered no seizures. In September 1994 while housed at Mid-State Correctional Facility claimant sought treatment for his seizures and received medication. Despite receiving antiseizure medication he admittedly had additional seizures while at Mid-State. He was transferred to Cape Vincent Correctional Facility in December 1995 and was continued on antiseizure medication while housed there for 10 months until his release in November 1996. According to the claimant he did not seek treatment, nor did he take antiseizure medication, between his release from Cape Vincent Correctional Facility in November 1996 and his subsequent reincarceration in September 1998.

After being admitted to the Fulton County Jail in September 1998 claimant informed the nurse on his medical intake interview that he suffered from a seizure disorder but did not advise her that he had been seizure free for almost 34 months. During a subsequent medical interview at Clinton claimant informed the medical staff that he had a seizure disorder, was not currently taking antiseizure medication and had been seizure-free for several years. Claimant was transferred to Downstate on October 12, 1999 where a blood test was administered and his medical history was recorded[4]
. He advised the nurse at Downstate that he had been seizure free for a long period of time. He arrived at Franklin Correctional Facility on October 22, 1999. No antiseizure medication was prescribed at either Clinton or Downstate prior to his transfer to Franklin. Claimant related that at some unspecified time while incarcerated at Mt. McGregor Correctional Facility (Mt. McGregor) and at Mid-State Correctional Facility (Mid State) he was informed by medical staff that if he were seizure free for six months antiseizure medication was unnecessary.
On his redirect examination claimant testified that he informed the Fulton County Jail medical staff that he suffered from a seizure disorder during his intake assessment and that he notified jail staff that he suffered seizures while housed at that facility on January 19, 1999. Claimant was not subjected to re-cross examination.

Claimant's attorney requested that the Court read and consider specific lines of testimony set forth in the transcript of an examination before trial of Pamela M. Fountain, a nurse who performed claimant's intake medical assessment at Franklin Correctional Facility. In her examination Nurse Fountain identified a medical excuse form dated October 22, 1999 which assigned claimant to a bottom bunk based on his reported history of seizures. She further testified that a copy of that excuse would have been put in claimant's chart and that the protocol for incoming inmates with a history of seizures was to assign them a bottom bunk and "put them in" to see a facility doctor. The intake chart is left for a doctor to look at and sign. Ms. Fountain noted that she did not sign the reception nursing assessment form prepared at Franklin.

The Court was also asked to consider portions of the EBT testimony of Kathryn Caban, a registered nurse employed on a full-time basis at Franklin since July 27, 1999. She provided an overview of the initial inmate medical screening process which she testified is generally performed at Downstate. She also examined various forms, differentiating forms prepared at Franklin from those shown to her by claimant's counsel. The witness recognized one of the forms as being in her handwriting. That form noted, among other things, that the claimant had reported a history of seizures and was not at that time taking medication to treat the condition. The witness related that this form was completed by her in December 1999 prior to a court appearance by claimant. The review of claimant's medical status was conducted so that claimant would not be without required medication while outside the facility to attend a Court proceeding.

Upon the conclusion of claimant's proof the defendant moved to dismiss the claim for failure to prove a prima facie case. The Court reserved decision at the time of trial and permitted the defendant to present its direct case.

The defendant requested that the Court consider as evidence that portion of nurse Pamela Fountain's EBT testimony found at pages 25, line 1 through page 26, line 6 of claimant's Exhibit 16 in which the witness stated that claimant did not complain to her regarding a lack of seizure medication. She testified that had claimant requested medication she would have noted the request in his ambulatory health record. Defense counsel also requested that the Court consider the EBT testimony of Kathryn Caban found at page 11, line 19 through page 12, line 12 and at page 13, line 14 through page 15, line 9.

Defendant's first witness was Dr. Gerald Cahill who was present in Court during claimant's trial testimony. Dr. Cahill indicated that generally speaking medical tests and assessments performed along an inmate's journey in the State correctional system are forwarded to the inmate's ultimate place of incarceration. Records created by non-DOCS facilities do not necessarily travel with an inmate who later enters the State correctional system. The claimant did not mention seizures or the lack of antiseizure medication during the witness's single face-to-face encounter with claimant at Franklin Correctional Facility.

On cross-examination Dr. Cahill stated that Exhibits 1-5 do not indicate that the claimant was assessed by a licensed healthcare provider regarding his purported seizure disorder. He testified that it is not necessary that a seizure be witnessed in order to receive medication for a seizure disorder. Dr. Cahill did not know if claimant suffered any seizures after March 4, 2000 but averred that any seizures after that date for which claimant sought treatment would be noted in claimant's ambulatory health records.

On redirect examination the witness was questioned regarding the testimony of claimant's medical expert who referred to "pseudo-seizures." He stated that such incidents can be caused by anxiety or other psychological conditions. The witness noted a May 4, 2000 entry in claimant's ambulatory health record which mentioned seizure disorder and stated the claimant was experiencing a panic attack and a feeling of being smothered, symptoms which Dr. Cahill suggested could indicate a pseudo-seizure. He further referenced an entry on page 11 of Exhibit 11 dated May 5, 2000 which noted claimant's complaint of a panic attack.

Upon his review of claimant's ambulatory health record (Exhibit 11) for the period following the March 4, 2000 incident the witness noted that claimant was prescribed Dilantin and Depakote. The former medication is used to treat seizures and the latter to treat bipolar disease, migraine headaches and seizures. A portion of the claimant's ambulatory health record dated May 28, 2000 noted complaints of anxiety or panic attacks and observations of strange behavior. Claimant also expressed fears of being killed but denied suicidal ideations. The witness stated that panic attacks can be consistent with pseudo-seizures.

During re-cross-examination Dr. Cahill acknowledged that he assessed claimant as having suffered a grand mal seizure and not a pseudo-seizure.

At the start of trial the claimant's attorney stated on the record that the claimant was withdrawing the second (negligence in restraining claimant) and third (negligent training/supervision) causes of action asserted in the claim. The sole remaining cause of action set forth on page 3 of the claim states the following:
First Cause of Action

The actions of Intake Nurse Franklin, Nurse P. Fountain, Nurse Laudey, and Nurse Cibu, as well as other medical staff, in not providing antiseizure medication to the plaintiff [were] negligent in that those actions constituted substantial and unjustified departures from accepted standards of medical care, and [were] otherwise negligent.

Alleged errors by a healthcare professional in prescribing or failing to prescribe medication constitute medical malpractice and not ordinary negligence (
Bastian v State of New York, 8 AD3d 764; Spensieri v Lasky, 94 NY2d 231). As such, the claimant herein was required to present expert testimony establishing that the defendant " 'breached the standard for good and acceptable care in the locality where the treatment occurred and that [the] breach was the proximate cause of [the] injury' " (Torns v Samaritan Hosp., 305 AD2d 965, 966; Bracci v Hopper, 274 AD2d 865; Gibson v D'Amico, 97 AD2d 905). Proximate cause is established where the expert testimony demonstrates that an act of medical malpractice was a substantial factor in producing the injury complained of (Valentine v Lopez, 283 AD2d 739; Prete v Rafla-Demetrious, 224 AD2d 674).
The claimant herein has failed to meet his burden of establishing by expert testimony (1) a deviation from accepted medical practice and (2) that any such deviation proximately caused claimant's injury.

Dr. Steven Spencer, claimant's expert, opined on his direct examination that the care provided Mr. Shiels at Franklin Correctional Facility failed to comply with "generally accepted standards of care in correctional healthcare" in that the claimant did not receive "a comprehensive evaluation of his medical and health condition". According to Dr. Spencer, standard practice in the correctional healthcare setting requires that all newly arriving inmates receive "a thorough history and physical examination by a licensed healthcare provider" which he described as including a physician, physician assistant or nurse practitioner.

Dr. Spencer did not provide an opinion regarding standards applicable to the provision of antiseizure medication to inmates. Nor did he testify that given claimant's specific history antiseizure medication should have been prescribed and that the failure to provide such medication would have prevented or lessened the severity of the seizure suffered by claimant on March 4, 2000. Expert testimony regarding these issues is especially relevant where, as here, the claimant's history demonstrates that prescribed antiseizure medication had not in the past prevented the occurrence of seizures. Such matters are not within the ordinary knowledge and experience of lay persons and, therefore, the absence of expert testimony relative to the issues of duty, breach and proximate cause are fatal to claimant's first and sole remaining cause of action (
Tatta v State of New York 19 AD3d 817; Wells v State of New York, 228 AD2d 581).
Even had a claim alleging a failure to provide the claimant a thorough screening and/or physical examination been pleaded, the claimant's proof on this issue was insufficient.

Although claimant's expert opined that claimant failed to receive a comprehensive evaluation of his health status, the evidence received at trial belies that assertion. Following his entry into the State correctional system claimant was housed at Downstate Correctional Facility. Claimant's Exhibit 1 is a Nursing Assessment/Interfacility Health Screening Form completed at Downstate on October 8, 1999. Information entered on claimant's Ambulatory Health Record upon his receipt at Franklin on October 22, 1999 (claimant's Exhibit 5) indicates that claimant underwent a physical examination, a chest X ray and blood chemistry workup (defendant's Exhibit J) at Downstate on October 13, 1999.

Upon his transfer to Franklin Correctional Facility on October 22, 1999 the nursing staff prepared both a DOCS Reception Nursing Assessment/Interfacility Health Screening Form (claimant's Exhibit 4) and a Medical Screening Reception Form (claimant's Exhibit 2) and entered relevant data in the claimant's ambulatory health record. With regard to the testimony of claimant's expert that newly arrived inmates should be seen by a licensed healthcare provider such as a physician within seven days, the record establishes that claimant was received at Franklin on October 22,1999 and was examined by Dr. Caldwell relative to a right shoulder injury on October 29, 1999.

In addition to the above, claimant's expert failed to address the issue of proximate cause. Dr. Spencer did not discuss much less render an opinion regarding the relationship between the alleged failure to properly examine and/or evaluate the claimant and the happening or severity of his seizure on March 4, 2000. The manner in which the purported failure to adequately evaluate the claimant caused or contributed to the injuries set forth in the claim was not even mentioned at trial. "Expert medical testimony is required to establish proximate cause and make out a prima facie case of medical malpractice unless the causal relationship is readily apparent to the jury. In the absence of such expert testimony, the claim should be dismissed" (
Macey v Hassam, 97 AD2d 919, 920; Lyons v McCauley, 252 AD2d 516). In this case the claimant has submitted no expert proof relative to the causal connection between the failure to examine or evaluate the claimant and his subsequent seizure and any injuries resulting therefrom. Since such a matter is not within the common knowledge and experience of the finder of fact the claimant has failed to sustain his burden of proof and the claim must, therefore, be dismissed.
The Clerk of the Court is directed to enter judgment in accord with this decision. All motions not previously decided are denied.

January 27, 2006
Saratoga Springs, New York

Judge of the Court of Claims

[1]Exhibit F was not received in evidence.
[2]These dates conflict with dates appearing on claimant's Exhibit 1, which shows a receiving facility (Downstate) arrival date of October 8, 1999.
[3]That action was dismissed by the Appellate Division, Third Department (Sheils v County of Fulton, 14 AD3d 919).
[4]The Medilabs, Inc. report (defendant's Exhibit J) indicates blood was collected on October 13, 1999 at 6:14 a.m.