In 1999, during claimant’s incarceration at Tappan Correctional Facility
(Tappan), claimant was treated for pericarditis presumably caused by
tuberculosis (TB). Claimant also underwent surgery to relieve the pressure
around his heart caused by his illness. Claimant contends that his medical
condition resulted from his exposure to Inmate
and that defendant was negligent in its
failure to remove Inmate A from general population prior to September 14, 1998.
Claimant also contends that defendant was negligent in its failure to provide
him with timely medical treatment. Defendant maintains that the New York State
Department of Correctional Services (DOCS) properly treated Inmate A. Further,
while claimant’s medical records refer to presumed TB pericarditis,
defendant contends that claimant had idiopathic pericarditis, which is not
attributable to TB. Accordingly defendant maintains that claimant’s
illness was not attributable to his exposure to Inmate A.
Tappan is a medium security facility on the grounds of Sing Sing Correctional
Facility (Sing Sing) where inmates are housed in dormitory style quarters. From
July 26, 1998 to September 14, 1998, claimant was housed in a dormitory adjacent
to Inmate A’s dormitory. On September 14, 1998, Inmate A was transported
to St. Agnes Hospital (St. Agnes) and, on September 22, 1998, he was diagnosed
with active TB. Claimant testified that he and Inmate A had frequent contact
prior to his diagnosis. They played dominos, talked, watched television,
showered and cooked together everyday. Claimant spent little time with John
Simmons, another inmate who was diagnosed with TB in 1999.
Claimant maintains that he became ill in late October 1998 and reported to
sick call with complaints of fever, chest pains, bloody sputum, and coughing.
Claimant’s Ambulatory Health Record, however, indicates that
claimant’s first sick call visit related to respiratory complaints was on
December 3, 1998 (Ex. 3, p 7). Claimant testified that he went to sick call
approximately 10 times prior to the end of February 1999. During that period,
claimant lost 45 pounds.
Claimant stated that he had stabbing chest pains and was admitted to St. Agnes
Hospital on February 26, 1999. He was tested for TB and, on March 3, 1999, he
had heart surgery to relieve the pressure around his heart. He was administered
pain medication after the surgery. Thereafter, claimant was twice readmitted to
St. Agnes because of stabbing chest pain. He has two scars on his chest from
the surgery. Claimant’s symptoms improved after a six-month regimen of
Since 2002, claimant has not received any treatment for his chest or heart and
has regained the lost weight. Presently, claimant’s only complaint is a
recurring cold that lasts three weeks out of every month. He has not gone to
any doctors for heart or chest pain.
Robert E. Fiore, who was employed at Sing Sing from 1997 to May 2000 as a
Regional Infection Control Nurse, testified that in this position, he acquired
knowledge of all diagnosed cases of active TB at Sing Sing during 1998 and 1999.
DOCS policy on the prevention, detection, containment and treatment of TB is
contained in Claimant’s Exhibit 6 and Fiore explained that, as a means of
preventing the spread of TB, every inmate is screened upon entry into the
correctional system. The screening consists of a Purified Protein Derivative
(PPD) skin test and a chest x-ray. Pursuant to policy item 1.18, inmates
receive a PPD test annually. A positive reaction to the PPD test (a swelling of
greater than five millimeters) indicates that an individual has been exposed to
TB and has a latent infection. A person who has a positive PPD will always test
positive. Therefore, repeat PPD tests are not given to such inmates. Fiore
noted that there is a difference between a latent TB infection and the active TB
disease. Active TB is marked by symptoms of fever and coughing. To confirm a
diagnosis of active TB, sputum specimens are evaluated for Acid-Fast Bacillus
(AFB) by means of smear and culture tests. While awaiting the culture test
results, DOCS policy is to place the inmate in a respiratory isolation room.
Fiore explained that, since TB is spread through airborne particles, contact
investigations are conducted to evaluate anyone who may have been exposed to
active TB. Individuals are given a PPD test and examined for possible signs of
active TB. Pursuant to DOCS policy, investigations begin with close contacts
and then extend to lower-risk groups in a concentric circle approach. A
baseline PPD is obtained and 12 weeks later, the longest time it takes to
convert from a negative to a positive PPD response, another test is
administered. The testing extends in stages to progressively lower-risk groups
until the rate of conversion is less than one percent.
In 1996, Inmate A had a positive PPD test and was treated with a six-month
regimen of prophylactic isoniazid (INH) and vitamin B6. This medication is
routinely given for latent TB infections. On July 30, 1998, Inmate A presented
at sick call with complaints of fever, chest pain and coughing. His physical
examination revealed a temperature of 99.4 degrees and clear lung fields (Ex. 5,
p 13). He was advised to decrease smoking and increase his fluids. Inmate A
was next seen 32 days later at sick call on August 31, 1998. He was not
examined by a doctor at either visit.
When questioned at his examination before trial about the July 30, 1998 sick
call visit, Fiore characterized 99.4 degrees as a low grade fever and referred
to Inmate A’s fever multiple times. At trial, however, Fiore testified
that he had been wrong when he repeatedly referred to 99.4 degrees as a fever.
Fiore was asked at trial whether a person who presents with fever, a positive
PPD, complaints of chest pain and coughing should have follow-up care. Fiore
responded affirmatively and stated that the failure to have follow-up care would
be a departure from medically acceptable standards. Fiore, however,
distinguished such a case from Inmate A’s situation because he did not
have a fever. Only a temperature greater than 99.6 should be considered a fever
and Fiore insisted that a follow-up visit was not indicated for Inmate A because
he had a temperature of only 99.4. Fiore maintained that Inmate A was properly
treated symptomatically. His lung fields were clear and it was appropriate to
advise him to decrease smoking and increase his fluid intake.
On October 1, 1998, DOCS initiated a contact investigation at Sing Sing based
on Inmate A’s diagnosis of TB. The period of infectivity was determined
as July 16, 1998 (two weeks prior to Inmate A’s first complaint) to
September 14, 1998 (when Inmate A was transferred). In the first step of a
contact investigation health professionals visit the site and assess the housing
arrangements. In this case, Inmate A had been housed in a dormitory-style
setting with 50 beds in a large open area measuring approximately 75 to 100 feet
by 75 feet. Claimant resided in an adjacent dormitory separated from Inmate
A’s dormitory by a wall and an open correction officers’ station,
described as a pass through measuring 10 feet by 3 feet. Initially, 44
employees and the 27 inmates assigned to the beds surrounding Inmate A were PPD
tested and examined; this was completed by November 16, 1998. The testing was
thereafter expanded twice to the next group of beds until the conversion rate
was zero. The trace investigation was completed by February 12, 1999 (Ex. B).
Claimant was not a subject of the trace investigation because he was housed in
the adjacent dormitory.
On April 1, 1999, DOCS initiated a contact investigation at Sing Sing based
upon a diagnosis of TB of another inmate, John Simmons (Ex. C). Claimant was
not a subject of that investigation either because he was already being treated
with a TB drug regimen referred to as RIPE (rifampin, isoniazid, pyrazinamide,
Claimant’s medical records reveal that, on March 1, 1999, his TB skin
test was positive while his sputum smear and tissue exam were negative. His
chest x-ray was abnormal (Ex. A, p 7). Referring to claimant’s medical
records, Fiore testified that, on March 3, 1999, claimant was operated on at St.
Agnes for emergency pericardial fenestration. A biopsy obtained was negative
for AFB. Claimant was started on RIPE for presumptive extrapulmonary TB of the
pericardium (Ex. A, p 68). There was no clinical or microbiological indication
of pulmonary involvement. Claimant’s medical records further reveal that
as of March 30, 1999, he was treated for empiric pericarditis TB. While his AFB
smear test remained negative, he had a productive cough, shortness of breath,
and chest pain. Fiore explained that the terms empiric or presumptive meant
that the symptoms, while characteristic of a disease, are not confirmed by the
Claimant was treated successfully with Biaxin and amoxicillin and continued on
the RIPE drug regimen. Although the microbiologic testing failed to identify
the AFB organism, he remained on the TB medications for six months. Claimant
was never diagnosed with active TB, even though he was treated for symptoms
associated with TB. Claimant’s medical records indicate that he was
treated for “idiopathic pericarditis (?TB)” (Ex. A, p 101). A year
later, on April 26, 2000, claimant’s medical records evidence that he had
lower lobe pneumonia. Again, the assessment was that claimant had idiopathic
chronic pericarditis and was s/p (status post) extrapulmonary pericardial TB
(Ex. A, p 69).
Dr. Igal Staw offered expert testimony on behalf of claimant. Staw is board
certified in internal medicine and pulmonary medicine. When presented with the
facts surrounding Inmate A’s sick call visit of July 30, 1998, Staw
stated that 99.4 degrees was a low grade fever and Inmate A presented with
symptoms consistent with TB. Staw noted that acute bronchitis was a possibility
and, therefore, the patient should have been started on an antibiotic. In his
view, health teaching alone was insufficient. Also, the patient should have
been directed to return to the infirmary in five to seven days; instead, Inmate
A did not return until August 31, 1998, complaining of chest congestion. On
that visit Sudafed and Tylenol were prescribed. Staw considered these drugs
insufficient. As of August 31, 1998, Staw opined Inmate A required an
antibiotic or more appropriate medication.
Inmate A presented at sick call on September 11, 1998. He had a productive
cough, fever, weight loss, a positive PPD and a history of six months of
treatment with INH and Vitamin B, coarse bronchi, and a temperature of 99.6. A
chest x-ray was taken and amoxicillin was prescribed. According to Staw, this
antibiotic is a good choice for initial symptoms; however a stronger medication
was necessary given claimant’s history.
Staw opined that the failure to remove Inmate A from the general population
until September 1998 constituted a departure from reasonable standards of
medical care because he should have been removed immediately once TB was
Referring to claimant’s medical records, Staw testified as to
claimant’s treatment at Sing Sing and St. Agnes. On December 3, 1998,
claimant presented at sick call at Sing Sing complaining of a sore throat for
three days and a productive cough with yellow, green, blood streaked sputum.
This was suggestive of infection and erosion of his breathing tube. Audible
bronchi were noted. Bactrim was prescribed and the plan was to rule out
bronchitis. Staw testified that this was a proper manner of treatment.
On December 28, 1998, claimant again presented at sick call. He complained of
chest pain and had cold symptoms. On December 29, claimant had wheezing and a
productive cough (Ex. 3, pp 8-9). Throughout January, (January 7, 14, 20, 22,
28, 29, 1999) claimant presented at sick call with complaints of a chronic
cough, pleuritic chest pain (pain when breathing), shortness of breath, fever,
and chills (Ex. 3, pp 10-13). Claimant’s complaints of coughing and
green, brown sputum continued in February (February 9, 16, 26, 1999)( Ex. 3, pp
14-16). On February 28, 1999, claimant was admitted to St. Agnes with
continuing respiratory complaints, a fever, and sweats. The plan was to rule
out TB. By March 1, 1999, claimant had hemoptysis (spitting up blood) and a
large pericardial effusion (fluid around the heart). It was suspected that
claimant had pericarditis caused by the TB bacteria. On March 3, 1999, claimant
underwent an operation to cut a window in his pericardium to drain the fluid
from his chest and thereby relieve the pressure on his heart. Following
surgery, claimant was administered Percocet for pain. Samples of the fluid and
pericardial sac were taken to determine the presence of TB bacteria. These
tests eventually proved negative. On March 9, 1999, claimant was released to
the Sing Sing hospital.
Claimant was readmitted to St. Agnes on March 25-26 and April 26-28. There
are multiple references in claimant’s medical records that he was
diagnosed with and being treated for presumptive extrapulmonary TB of the
pericardium (i.e., Ex A, pp 68, 69; Ex. A, pp 46, 55, 61, 68, 70). There is
nothing in claimant’s medical records suggesting another possible
diagnosis. Staw concluded that claimant suffered from TB pericarditis based
upon the progression of his disease and his prior exposure to TB. Moreover,
Staw noted that claimant responded positively to the prednisone and RIPE
regimen, which is the conventional treatment for TB. In Staw’s view, the
fact that the tests were negative in detecting the presence of the TB bacterium
did not preclude a diagnosis of TB pericarditis because, in many cases, a
negative test result is due to an insufficient number of bacteria in the
Staw conceded that to make a definitive determination of TB, there must be
granulomas, changes in the cells and a finding of AFB. In claimant’s
case, there were no positive cultures of TB bacilli, no AFB in the pericardial
smear, and no granuloma changes in the cells indicative of TB. Nonetheless,
Staw insisted that even in the absence of these findings, a clinical diagnosis
could still be made based upon the symptoms exhibited and the fact that claimant
was in a prison setting, which is conducive to TB. Additionally, claimant had
responded to the RIPE medications. Staw discounted the fact that claimant was
also taking prednisone, but conceded that there was no definitive way of knowing
which drug is attributable to benefitting claimant.
Staw maintained that if claimant had been treated promptly for TB, he would
not have developed extrapulmonary TB and would not have required surgery. Staw
also opined that, if claimant had frequent contact with Inmate A, it was more
likely that Inmate A was the source from whom claimant had contracted TB and not
another infected inmate with whom claimant had little contact. Staw testified
that claimant has permanent scars from the operation and in the future will be
more susceptible to colds and a reoccurrence of TB because TB predisposes
individuals to damaged bronchi and increased mucous production.
Dr. Harish Moorjani testified that he is a board certified physician in
internal medicine and infectious disease. Since 1994, he has provided
infectious disease services for DOCS and from 1996 to 2003 worked as an
infectious disease consultant at St. Agnes. Moorjani has diagnosed and treated
approximately 20 inmates with TB. In addition to the correctional system, he
has treated more than 1000 patients with TB and has diagnosed more than 500
patients with the disease. Since 1987, he has treated approximately 50 patients
with pericarditis and five patients with pericarditis TB.
Moorjani testified that TB is an infection of the human body based on a
specific bacteria and is contracted by inhaling. There is a distinction between
having a latent TB infection, where the TB remains dormant, and an active case
of the disease associated with the presence of typical symptoms. Generally, a
combination of INH and vitamin B6 is administered for six months to prevent the
latent infection from developing into the active disease. In terms of
pericarditis, Moorjani explained that its diagnosis requires that fluid be
aspirated and a biopsy done of the tissue. If pericarditis continues for an
extended period, it results in the growth of fibrous tissue which constricts the
Moorjani treated claimant at St. Agnes and was familiar with his records and
condition. Moorjani reviewed the course of treatment claimant received at St.
Agnes and testified that by March 2, 2003, claimant’s condition was
worsening and he had a large pericardial effusion. At that time, Moorjani wrote
“Impr: (Impression) ?TB pericarditis” (Ex. 1, p 23). He reached
this conclusion because claimant stated he was exposed to TB in October 1998,
his TB test was positive, and the abnormality was indicative of pericarditis.
Moorjani also pointed to a series of other tests ordered to determine the
underlying ideology of claimant’s disease.
Moorjani consulted with a pulmonologist and a cardiologist to manage
claimant’s case. To address the inflamation which was causing cardiac
compromise to claimant, surgery was performed to drain the fluid. After the
procedure, the pericardial fluid and a biopsy of the tissue were tested for the
presence of AFB. Moorjani testified that he wrote, “Impr: Presumed TB
Pericarditis” in claimant’s hospital records (Ex. 1, p 72) because
inflamation of the heart lining may be caused by TB and it was established that
claimant had pericarditis, had been exposed to TB, and had a positive PPD. The
plan was to treat claimant for TB and begin the RIPE regimen. Although
claimant’s test results suggested no infectious ideology (Ex. 1, p 103),
the anti-TB medications were continued as well as prednisone to treat the
inflamation. Moorjani also ordered additional tests to look for noninfectious
reasons for claimant’s pericarditis (Ex. 1, p 87). When claimant was
discharged from St. Agnes on March 9, 1999, Moorjani wrote in the discharge
summary, “Presumed TB pericarditis” (Ex. 1, pp 68-69). Moorjani
explained that the culture was still pending and he believed it was probably
extrapulmonary TB. Claimant had a cardiac catherization at Westchester Medical
Center on March 11, 1999.
Claimant was readmitted to St. Agnes on April 26, 1999. At that time,
Moorjani noted in claimant’s Admission History that he was presumed to
have TB pericarditis and that the biopsy from the pericardial window showed
“chronic granulomatous pericarditis” which was indicative of TB (Ex.
2, p 5). At trial, however, Moorjani testified that this finding was an error
and that there was no evidence of granulomas. Moorjani never corrected the
error in the written record. He maintains that his further writing on April 26,
1999 demonstrates that he was still considering other possibilities, i.e.,
“Presumed TB pericarditis vs idiopathic vs sarcoid” (Ex. 2, p 9).
Nonetheless, on claimant’s discharge summary of April 28, 1999, Moorjani
again wrote “Recurrent chronic idiopathic pericarditis ?TB” (Ex. 1,
p 12) even though by that date all pathology tests had been completed
establishing that there was no AFB. Moorjani maintained that claimant did not
have TB pericarditis and that the care he received at St. Agnes conformed with
good and accepted practices.
When questioned why claimant’s ambulatory health records continued to
reflect claimant’s treatment for presumptive pericarditis TB even after
the tests purportedly ruled out TB, Moorjani simply stated that the assumptions
made were wrong. These he concluded were possibly based on his own incorrect
notations (Ex. 3, pp 89, 92, 101, 109, 122). Moorjani testified that his plan
of April 26, 1999, continuing claimant on INH, rifampin and vitamin B6 for
“presumed tuberculous pericarditis” was also an error (Ex. 1, p
Moorjani testified that claimant had chronic idiopathic pericarditis in
addition to TB exposure. Moorjani acknowledged that claimant had latent TB and
that he had been exposed to someone with TB, but Moorjani maintained that
claimant did not have TB pericarditis.
When questioned about Inmate A, Moorjani testified that a patient presenting
with Inmate A’s complaints on July 30, 1998, should receive symptomatic
care. He was a young man with no underlying medical condition who appeared with
upper respiratory issues that were acute and not more than three weeks in
duration (T:383). In Moorjani’s view, Sing Sing’s treatment of
Inmate A on July 30, 1998 was not a departure from good and acceptable medical
practice and it was not necessary to place Inmate A in isolation.
From July 30, 1998 until his admission in St. Agnes, Inmate A was never seen
by a doctor. Moorjani testified that Sing Sing’s treatment of Inmate A on
August 31, 1998, September 11, 1998, and September 14, 1998 also constituted
acceptable medical care.
Moorjani disagreed with Staw as to the likelihood that claimant would develop
TB again. Moorjani testified that since claimant had a full course of TB
therapy, this risk was negligible. Moorjani also maintained that there is no
predisposition for respiratory infection from pericarditis.
Dr. Bruce Farber, the Chief of Infectious Diseases at North Shore University
Hospital in Manhasset, New York, testified on behalf of defendant. He is board
certified in internal medicine and infectious disease.
Farber testified that, based on his experience, only one percent of people
infected with latent TB develop TB outside the lung and, of that group, only 10
percent involve the pericardium. If TB is outside the lung, the signs and
symptoms are related to the organ affected. Farber agreed with Staw that the
chances of contracting TB are greater in prison where a high percentage of the
population is HIV positive and up to 30 percent of the population have latent TB
and they are all within close proximity to each other (T:522-23).
Farber explained that pericarditis is an inflamation of the lining of the
heart. Ninety percent of cases are caused by a viral infection and it is rare
that the virus can be isolated; therefore the cause is often termed idiopathic
or of an unknown cause (T:523-24). Farber explained that with “greater
than 90 percent of people with pericarditis, you don’t make a
diagnosis” (T:531). Ten percent are caused by cancer, TB, or another
immune deficiency disease. It is most commonly diagnosed clinically by
listening to the chest and hearing an abnormal scratching noise.
Echocardiograms, chest x-rays and EKGs are also utilized.
TB pericarditis is caused by the invasion of the TB organism into the lining
of the heart. It is diagnosed by a biopsy of the pericardial tissue, observing
granulomas in the lung and pericardium. Farber further noted that TB
pericarditis evidences itself as constrictive pericarditis which prevents the
heart from beating. This condition can be detected through a cardiac
catherization or an echocardiogram.
Based upon a review of claimant’s medical records, Farber opined that
claimant never had TB pericarditis. While acknowledging that claimant had
latent TB, Farber maintained that the pericarditis was unrelated (T:533). He
reached this conclusion because claimant’s sputum test was negative, his
chest x-ray showed no evidence of TB, the biopsy of the pericardial fluid and
tissues indicated the absence of granulomas or the TB organism and
claimant’s cardiac catherization revealed no evidence of constrictive
pericarditis. Farber considered it reasonable to treat claimant initially for
TB, even though eventually there was no support for the TB pericarditis
diagnosis. The fact that claimant improved on the RIPE regimen did not mean
that he had TB. He also benefitted from the steroid therapy, the pericardium
window, and the passage of time.
Farber testified that the treatment claimant received from the first time he
presented at the Sing Sing clinic on December 3, 1998 to his admission to St.
Agnes on February 26, 1999 met acceptable standards of medical care. Farber
stated that, in retrospect, claimant had pericarditis, but the disease is not
easy to diagnose (T:534-35). Farber maintained that claimant was treated
correctly in that he underwent every procedure medically recognized as
reasonable to make a diagnosis. Farber further testified that claimant’s
treatment at St. Agnes from February 26 to March 9, 1999 was not a departure
from good medical care. He was prescribed the RIPE regimen and underwent an
aggressive workup to confirm a diagnosis of presumptive TB pericarditis.
Further, on March 11, 1999, he had a cardiac catherization. Farber also
maintained that claimant’s subsequent stays at St. Agnes were not a
departure from acceptable medical practice.
On cross-examination, Farber was asked to review the almost three-month time
period during which claimant only saw a nurse or physician’s assistant on
his multiple visits to the Sing Sing infirmary. Farber conceded that he
probably would have wanted such a patient to be examined by a doctor (T:567).
Farber noted that the prison population is more likely to be exposed to TB;
therefore it was probably more important for a patient from such an environment
to be seen by a doctor when exhibiting symptoms of TB as opposed to a patient
not within a prison setting. Farber agreed, a productive cough with blood
streaked, yellow-green sputum and chills can be indicative of TB. Nonetheless,
Farber declined to view the failure to have claimant examined by a doctor as a
departure from reasonable medical care. Farber conceded that every patient with
pericarditis does not necessarily require a window operation and that if
claimant had been diagnosed earlier, then the period of time during which he
suffered would have been shorter and would have lessened the likelihood that he
would have required the window operation (T:620-21).
Farber maintained that neither TB pericarditis nor pericarditis would lead to
a higher incidence of colds or bronchitis. Pericarditis affects the lining of
the heart and not the lungs or bronchi. Farber agreed that, generally, anyone
with latent TB would always be at risk for active TB. However, since claimant
had already taken TB medication for six months, he would have a lower risk of
contracting the disease.
Farber testified that there is no scientific way to determine who exposed
claimant to TB since he had contact with many inmates and civilians in addition
to Inmate A and John Simmons.
On cross-examination, Farber was asked to read the multiple references in
claimant’s medical records to presumptive TB pericarditis. This diagnosis
continued to be documented even after all the tests revealed the absence of the
TB virus (Ex. 1, pp 9, 14, 20, 22, 23, 25, 27, 62, 69, 70, 72, 77, 91, 294, 295;
Ex. 3, pp 89, 92, 95, 101, 105, 106, 111, 117, 118, 120, 122). In
Farber’s opinion, there should have been better charting. Moorjani should
not have written TB pericarditis after it was established claimant did not have
the disease. Presumed TB pericarditis was a working diagnosis. According to
Farber, after the cultures came back negative, someone should have synthesized