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May 21, 1990


The opinion of the court was delivered by: Leisure, District Judge.


This is an action brought pursuant to 42 U.S.C. § 1983 alleging that plaintiff's deceased husband was not provided adequate medical care while he was incarcerated at the Green Haven Correctional Facility. Plaintiff contends that her husband received such poor care that his Eighth Amendment rights were violated. Defendants Saul Rosenblum, E. Michael Kalonick, and Charles J. Scully have now moved for dismissal of the complaint or summary judgment pursuant to Fed.R.Civ.P. 12(b), 12(c), 12(h) and 56.*fn1


On April 15, 1985, Herbert Kaminsky ("Kaminsky") was sentenced to two consecutive two to four year terms of imprisonment after pleading guilty to nine felony counts including grand larceny. On April 30, 1985, he was assigned to the Downstate Correctional Facility. At the time of his incarceration, Kaminsky was 57 years old and suffered from numerous ailments including high blood pressure, diabetes, angina, gout and an enlarged spleen. Kaminsky was taking a number of medications at the time of his incarceration, and shortly after his arrival at Downstate he was seen by medical personnel who adjusted the medications he was receiving.

On July 22, 1985, Kaminsky was transferred to the Green Haven Correctional Facility located in Stormville, New York ("Green Haven"). Green Haven is a maximum security prison containing over 2000 inmates and operated by the New York State Department of Correctional Services ("DOCS"). During the period of Kaminsky's incarceration, defendant Charles J. Scully ("Scully") was superintendent of Green Haven, defendant E. Michael Kalonick ("Kalonick") was the Regional Health Services Administrator for Green Haven, and defendant Saul Rosenblum ("Dr. Rosenblum") was Medical Director at Green Haven.

It is uncontested that during his approximately twelve months at Green Haven*fn2 Kaminsky received frequent medical attention. With the exception of a period in the summer of 1986, plaintiff does not contest that Kaminsky had regular contact with medical personnel both at Green Haven, and at the Westchester County Medical Center ("WCMC"). Plaintiff contends that the quality of care, particularly during the last months of Kaminsky's life, was so inadequate as to evidence deliberate indifference to Kaminsky's health and medical needs. A review of Kaminsky's medical treatment is necessary to understand the parties' positions in this motion.*fn3

Shortly after his transfer to Green Haven, Kaminsky was seen by Dr. Balvir Tambar ("Dr. Tambar"), one of the physicians at Green Haven. Blood tests were performed shortly thereafter, indicating ongoing problems, apparently consistent with Kaminsky's previously diagnosed heart disease and diabetes. Based on these tests and a review of Kaminsky's medical history, Dr. Tambar recommended that Kaminsky be placed on a restricted diet and not be required to undertake any physical exertion. In late August 1985, Kaminsky went to the hematology clinic at WCMC. After apparently performing some tests, the attending physician at the hematology clinic indicated a desire to review Kaminsky's prior medical records, and also requested that Kaminsky be returned to the clinic in two weeks. On August 30, 1985, Kaminsky returned to WCMC for a visit to the cardiology clinic. The cardiologist noted that, after walking only ten to fifteen steps, Kaminsky developed chest pain and had trouble breathing. The doctor suggested an adjustment in Kaminsky's medications, including the addition of daily doses of orange juice. The doctor further suggested severe restrictions on Kaminsky's physical activity. Dr. Tambar reviewed the cardiologist's recommendations some ten days later, implemented the medicinal changes, recommended that Kaminsky be housed on the first floor of the cell block to avoid the use of stairs, but denied the request for daily supplements of orange juice.

Kaminsky visited the cardiology clinic at WCMC again on September 30, 1985, at which time he complained of continued chest pain and shortness of breath. The cardiologist suggested a further adjustment in his medication, and again recommended orange juice, apparently to increase Kaminsky's potassium level. Dr. Tambar again reviewed the findings from WCMC, and implemented all the suggested changes except the orange juice supplement. Kaminsky visited the cardiology clinic again on October 21, 1985. Again, medicinal modifications were recommended, as was the addition of orange juice or banana supplements. Dr. Tambar followed all the recommended adjustments, but, noting that Kaminsky's potassium level was normal, did not add orange juice or bananas to Kaminsky's diet.

On October 25, 1985, Dr. Rosenblum saw Kaminsky at the Green Haven clinic. This was apparently the first time Dr. Rosenblum had seen Kaminsky as a patient. After the examination, Dr. Rosenblum requested that Kaminsky be housed on the first floor of the cell block, indicating that he had not previously been so housed despite the earlier request from Dr. Tambar. On October 29, 1985, Kaminsky was transferred to the custody of New Jersey prison officials for disposition of charges then pending in Bergen County. Kaminsky was returned to Green Haven on December 11, 1985. On December 30, 1985, Kaminsky returned to the cardiology clinic at WCMC for a follow-up visit. The cardiologist, after examination, recommended further hematolytic and cardiatric testing.

On January 23, 1986, Kaminsky was sent to the hematology clinic at WCMC. This was his first visit to the hematology clinic since August 21, 1985, despite the request of the hematologist at that time that Kaminsky be returned for a follow-up visit within two weeks. At the January 23 examination, the attending physician noted Kaminsky's weight at 244 pounds, and performed a series of blood tests. One of those tests indicated that Kaminsky tested positive for hepatitis B. It is not clear whether Kaminsky was ever informed that he was suffering from hepatitis B, a communicable and often chronic disease. On January 31, 1986, Kaminsky again returned to the cardiology clinic, at which time the cardiologist apparently recommended that Kaminsky undergo a coronary angiogram if his hematology was sufficiently stable to permit surgery.

On February 5, 1986, Kaminsky was scheduled to return to the hematology clinic. He refused to meet that appointment, indicating that he was expecting a visitor that day. On February 28, 1986, Dr. Felix Wroblewski ("Dr. Wroblewski"), Kaminsky's doctor prior to his incarceration, visited Kaminsky at Green Haven. There is no evidence of the purpose of Dr. Wroblewski's visit; it is clear, however, that Dr. Wroblewski did not examine Kaminsky, nor did he attempt to see Dr. Rosenblum or any other officials at Green Haven. Kaminsky returned to the cardiology clinic at WCMC, on March 3, 1986, and again on March 17, 1986. Adjustments in his medication were again ordered in response to his continuing complaints of pain and shortness of breath.

On March 25, 1986, Kaminsky returned to WCMC, this time as an in-patient. He remained at the hospital until April 7, 1986. During his hospitalization, Kaminsky underwent numerous tests, including cardiologic tests, a bone marrow study, and a liver biopsy. During April 1986, Kaminsky made a series of visits to the clinic at Green Haven. On May 2, 1986, Kaminsky returned to the cardiology clinic at WCMC, where it was noted that Kaminsky's heart condition seemed under control, though the physician noted marked high blood pressure. Kaminsky apparently could not tolerate the blood pressure medicine prescribed by the cardiologist and ceased to take it after only a few days.

On May 14, 1986, Kaminsky visited the hematology clinic. Along with the regular consultation report, the clinic included the results of Kaminsky' liver biopsy, performed while he was an inpatient. The biopsy indicated that Kaminsky had chronic hepatitis and cirrhosis of the liver, which was consistent with alcoholic hepatitis. It is again unclear whether Kaminsky was informed of the hepatitis diagnosis; Kaminsky was informed, however, of the diagnosis of cirrhosis of the liver. This diagnosis disturbed him, and, on May 15, 1986, he wrote to Dr. Wroblewski indicating his concern and also indicating that he might wish to be treated by specialists other than those available to him at Green Haven and WCMC.

Kaminsky returned to WCMC on June 5, 1986, at which time the physician noted that Kaminsky's condition seemed stable. The doctor also noted that Kaminsky had received blood transfusions on at least three occasions, the last in 1983. The doctor indicated that further evaluation was necessary, requesting that Kaminsky be returned to the hospital with the results of his previous tests. On June 9, 1986, Kaminsky was scheduled to visit the cardiology clinic. He refused to go, indicating that he was expecting a visitor that day.*fn4

On June 5, 1986, Dr. Wroblewski wrote to Scully, with copies to Dr. Rosenblum and Kalonick, indicating his concern regarding the diagnosis of cirrhosis of the liver, and indicating his willingness to provide consultation services if such was desired or possible. On June 24, Dr. Rosenblum responded to Dr. Wroblewski's letter, indicating the precise results of the biopsies, and that he would try to have the biopsy slides forward to Dr. Wroblewski. Dr. Wroblewski responded on June 30 that he would be back in touch with Dr. Rosenblum, after he had had a chance to review the biopsy slides.

From June 13 to August 6, 1986, Kaminsky was not seen by a doctor either at Green Haven or at WCMC. Twice during that period he saw a nurse at Green Haven who checked his blood pressure and renewed his medications. When Dr. Rosenblum saw Kaminsky on August 6, he noted that Kaminsky's weight had dropped to 200 pounds, that his spleen was enlarged, his lungs clear, and his blood pressure seriously elevated. Dr. Rosenblum also ...

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