|Claimant short name:||McFADDEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||95870, 102127|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Reginald McFadden, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, AAG
|Third-party defendant's attorney:|
|Signature date:||November 30, 2009|
|See also (multicaptioned case)|
This decision follows the trial of the claims of Reginald McFadden. In both claims, Mr. McFadden complains of medical treatment he received in State correctional facilities after testing positive for exposure to tuberculosis. In claim no. 95870, he also complains of the "restrictive conditions" of administrative segregation.
McFadden testified first on administrative segregation. He stated that he arrived at Sullivan Correctional Facility on March, 20, 1996, at which time he was "hostile, mad," and he understood that he was seen as a threat to facility personnel and inmates, as he had made comments that could be understood as threats. He added that he believed that defendant had the right to confine him in administrative segregation, although he later suggested that he did not understand why he was being placed in administrative segregation after having been in the general population at Attica Correctional Facility.
Claimant testified that his administrative segregation hearing was not timely held. In fact, 7 NYCRR §301.4(a) provides that an administrative segregation hearing "shall be conducted within 14 days of an inmate's admission to administrative segregation . . ." In the instant case, claimant's exhibit 6, a "Hearing Record Sheet," indicates that claimant was confined on March 21, 1996, and that the hearing was completed on April 4, 1996, i.e., 14 days later. The hearing was thus timely.
McFadden maintained that after he was placed in administrative segregation, he was supposed to receive a review of his status in seven days, and then every 30 days thereafter. He further testified that in fact, his status was reviewed only seven times in the three or four years of his stay in administrative segregation, which he testified ran from March 20, 1996 until August 2, 2000.(1) Claimant's own exhibit(2) consists of not seven, but eight, documents entitled "Administrative Segregation/Protective Custody Review Form." The first, which is dated December 30, 1998, is well into claimant's segregation, followed by January 30, 1999, June 30, 1999, September 30, 1999, November 30, 1999, December 30, 1999, January 30, 2000, March 30, 2000. To this trier of fact, only seven or eight reviews seems unlikely. Further undercutting the completeness of claimant's submission is the fact that the form resulting in his ultimate release from administrative segregation is missing from the exhibit.
7 NYCRR §301.4(d) provides that an inmate in administrative segregation "shall have such status reviewed every 60 days . . ."(3) As set forth above, claimant's testimony that he received only seven reviews was unconvincing. But in any event, claimant failed to demonstrate that he would have been released earlier from administrative segregation if he had more reviews; in each of the forms in claimant's exhibit 7, there was a determination following review that he was to be retained in such status.
It must be noted that in his claim, McFadden made no allegations regarding the timeliness of his administrative segregation hearing or the frequency of the reviews of his status. Rather, in his claim, McFadden alleged only that the conditions of administrative segregation were effectively punitive, and restricted his access to the courts; at trial, he did not testify as to the matters alleged in his claim.
McFadden would not be entitled to amend his pleadings pursuant to CPLR 3025, as his allegations regarding timeliness and frequency of reviews are essentially a new cause of action. That his claim lacks these allegations is a sufficient ground for the dismissal of his administrative segregation claim. But, as set forth above, even if his claim had contained such allegations, he failed at trial to prove them.* * *
McFadden next testified as to his treatment for exposure to tuberculosis. What follows is his narrative, which was accompanied by little or no probative documentation.
Claimant stated that when he was arrested in 1995, it was confirmed at a jail run by the County of Rockland that he was negative for exposure to tuberculosis. While there, he came into contact with two inmates who had tuberculosis. On September 7, 1995, he was brought to Downstate Correctional Facility, after which he underwent various medical tests, including a tuberculosis test on September 8. On September 15, he was told that he had tested positive for exposure to tuberculosis. McFadden said that he agreed to preventive medical care, which was begun the next day; he was to receive treatment three times a week, and was to report side effects. On October 24, 1995, claimant started experiencing nausea, but his medication was not stopped.
McFadden said that he was transferred out to court that day, and returned on October 27, 1995, after which he continued his medication, and had more severe side effects. In late November 1995, he was transferred to Attica Correctional Facility, after which another tuberculosis test was done on December 7, 1995, and on December 29, 1995, he was restarted on the same medication; he did not indicate when this medication had been stopped or why.
Claimant recalled that on January 21, 1996, he went back to the Rockland County jail and argued with personnel because he believed he had contacted tuberculosis there. While there, he did not receive any medications. He said he went back to Sullivan Correctional Facility on March 20, 1996, but was not seen in the medical unit until March 26, 1996. When he was seen, he was not started on tuberculosis medication. He told nurse Sharon Lilley that he had been on medication and that it had been abruptly stopped, although he provided no details of such stoppage at trial.
Claimant suggested that he did not get tuberculosis medication again until April of 1999, when an infectious disease control nurse came to see him after he filed a complaint with the New York State Department of Health. After the nurse visited, he did not hear anything, and in January 2000, he wrote to Nurse Lilley.
McFadden testified that on August 2, 2000, he was transferred to Clinton Correctional Facility, where he filed a grievance, after which he was restarted on tuberculosis medication. When the side effects returned, claimant refused to take the medication. He stated that in 2000 he obtained his medical records, and saw that in October 1996 or 1997, a nurse in Albany had contacted the facility about his complaints about not getting treatment, and he testified that he read a recommendation from an infectious control nurse saying that treatment had not been completed and should be resumed.
Claimant argued that the policy is "clear" that if an inmate has a positive tuberculosis test, he should be offered tuberculosis treatment, unless there is documentation that the treatment has been completed. Claimant maintained that when he arrived in March, a nurse made an error in writing that his treatment had been completed.
McFadden conceded that with all of the above, he did not develop any symptoms of tuberculosis. However, he maintained that when facility personnel saw that he had instances of what he admitted was his own noncompliance, they should have contacted an infectious control nurse to review his records.
Finally, claimant testified that when he first came into the system, facility personnel were supposed to investigate how he had been exposed to tuberculosis, which they failed to do, and he added that they "manipulated it" so that it would not look like he was not at high risk for contraction of tuberculosis.
On cross-examination, claimant denied that he had completed a 60-day treatment at Clinton Correctional Facility, stating that at that facility, they restarted him on the medication INH, but the tuberculosis he had been exposed to at the Rockland County jail was multiple drug resistant, so that drugs other than INH should have been used.* * *
Defendant called Katherine Jennings, the Regional Infectious Disease Control Nurse at Sullivan Correctional Facility. Ms. Jennings testified that she has a bachelor's degree in nursing and extensive training in infectious diseases. She said that she had worked as a nurse for almost 14 years, nine of which were in infectious disease control. The witness testified that she was familiar with the Department's tuberculosis policy, which she characterized as an "extremely broad" policy encompassing detection, isolation and containment. Notably, the policy covers staff as well as inmates.
Jennings said that with respect to someone who has tested positive for tuberculosis exposure, the policy covers treatment to prevent active tuberculosis. She added that various medications are used, the most common being INH, which is given twice a week or once a day, depending on the patient's tolerance. Shown defendant's exhibit A, which consists of certain of claimant's medical records, Nurse Jennings stated that claimant had in fact completed a course of treatment for his latent tuberculosis infection.
On cross-examination, Jennings stated that she did not have claimant's records from the Rockland County jail and did not know where he was exposed. She explained that as claimant has never had active tuberculosis, the facility would not have initiated a contact trace. She also stated that TB is airborne, so that claimant could have been exposed prior to his incarceration on a bus, subway or the like.
When asked on cross-examination if there was a duty to review claimant's records regarding noncompliance and the completion of treatment, she testified that there were multiple notes in his medical records showing that he was followed closely by infectious control.* * *
It is settled law that the State owes a duty to its inmates to provide them with adequate medical care. Kagan v State of New York, 221 AD2d 7 (2d Dept 1996). In order to prevail on his claim of inadequate medical care for tuberculosis, claimant would be required to present testimony from a physician that there was a deviation from accepted standards of medical care in connection with such treatment, which proximately caused him injury. See, e.g., Lyons v McCauley, 252 AD2d 516 (2d Dept 1998), lv denied 92 NY2d 814 (1998). Claimant failed to present any such testimony.* * *
In view of the foregoing, claim nos. 95870 and 102127 are dismissed.(4) LET JUDGMENTS BE ENTERED ACCORDINGLY.
November 30, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. Documents in McFadden's exhibits indicate that his administrative segregation began on March 21, 1996, not March 20, 1996. See claimant's exhibits 6 and 7.
2. Number 7.
3. Although 7 NYCRR §301.4(d) requires that such status be reviewed every 60 days, the forms in exhibit 7 refer to "7 Day Review" and "30 Day Review."
4. At trial, defendant moved to dismiss McFadden's claim on various grounds. In view of the court's decision herein, a ruling on such motion is not necessary.