The opinion of the court was delivered by: Newman, Senior Judge of the Court of International Trade, sitting as a District Court Judge by designation:
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW
David Williams, a former inmate confined at the Federal
Correctional Institution at Otisville, New York ("Otisville"),
seeks recovery of damages in the amount of $1,500,000 against
the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(d),
2671, et seq. for a below-the-knee amputation of
his right leg. During his incarceration at Otisville, Williams
was under treatment by the institution's medical staff for
diabetes mellitus and developed a bacterial infection in his
right foot. Plaintiff sues for alleged malpractice by
defendant's Chief Medical Officer and his staff in
misdiagnosing and improperly treating his infection, which led
to advanced infection culminating in gangrene necessitating a
below-the-knee amputation of his right leg on September 30,
1985. Williams was 48 years of age at the time of the
Williams claims that the bacterial infection which led to the
amputation of his right leg entered his foot through either an
abrasion caused by the improperly fitted institutional boots he
was required to wear when he first arrived at Otisville in
February 1985 or through a fissure caused by a fungal infection
between his toes (athlete's foot) that was not detected by the
medical staff because his feet were not properly examined to
rule out infection.
Defendant concedes that Williams' bacterial infection led to
gangrene in his right leg, but denies that the infection
resulted from either Williams' institutional boots or from a
fungal infection. According to defendant, Williams' foot
infection was blood-borne and gangrene was primarily the result
of complications incident to his diabetic condition (diabetic
neuropathy, microangiopathy and other vascular insufficiency).
Further, insists defendant, Williams' diabetic complications
were aggravated by heavy cigarette smoking, Williams' prior
history of intravenous narcotic drug use and alcoholism, and by
trauma to his right foot when he fell out of bed.
Defendant's liability for plaintiff's misfortune revolves
around the resolution of complex medical issues relating to the
etiology of plaintiff's gangrene and the credibility of
conflicting expert testimony relating to those issues.
In the early stages of a foot disease, the etiology of which
may be obscured by the pervasive effects of a chronic disease
like diabetes, treatment modalities are frequently a "judgment
call" on the part of the clinician or surgeon. Nonetheless,
treatment of diabetic foot disease is subject to some rather
well defined standards. Williams argues that defendant was
negligent in the diagnostic and treatment modalities provided
to him at Otisville in regard to his infected foot, and as a
consequence he suffered the amputation of his right leg below
For the reasons that follow, judgment is entered for
The record in this case is voluminous and complex, consisting
of the transcript of the oral testimony of three witnesses for
plaintiff and three witnesses for defendant in a six day bench
trial, five loose-leaf binders comprising Williams' medical
chart (much of which is illegible) and other records and
reports covering his medical history and treatment from 1980 to
1989, four deposition transcripts, illustrative medical
diagrams, and a stipulation of certain facts as set forth in
the amended pretrial order.
Not surprisingly, much of the evidence adduced by the parties
through their well qualified medical experts is highly
technical and sharply conflicting on the pertinent factual
issues. The court's view of the credibility of the witnesses
for both parties and weight accorded their testimony is
critical in resolving these factual issues and in determining
whether plaintiff has met his evidentiary burden of
establishing his claims by a preponderance of the evidence.
At trial, in addition to his own testimony, plaintiff
presented the testimony of the following: an adverse witness,
Stuart Gessleman, who was an uncertified physician's assistant
("PA") (Gessleman failed his examination (Tr. 147)) employed by
defendant at Otisville from January 1982; and Dr. Jere W. Lord,
Jr. Dr. Lord, whose professional credentials are quite
impressive,*fn2 was a highly credible witness and his
testimony is given great weight.
Portions of the following depositions were offered in
evidence by the parties:
1. Dr. Albert O. Rossi, Chief Medical Officer at Otisville
from August 1, 1980 to 1987 (Rossi Dep. Tr. 6, 14). At the time
of his deposition, April 11, 1989, Dr. Rossi was employed by
the Bureau of Prisons and assigned to Eglin Air Force Base
Federal Prison Camp as Chief Medical Officer (Rossi Dep. Tr.
2. Jayne Vander Hey-Wright, PA at Otisville since June 24,
3. Frederick Rochacewicz, PA at Otisville from May, 1985
through August 1988. At the time of his deposition, July 28,
1989, Rochacewicz was employed by the Bureau of Prisons at the
Federal Correctional Institution at Oxford, Wisconsin
(Rochacewicz Dep. Tr. 3-4).
4. Jacob Garcia, PA at Otisville from May 1985 to the
present. He has a 1983 medical degree from Universidad Pais
Vasco, Bilboa, Spain, but did not serve an internship, received
no further medical training and was never licensed to practice
medicine in the United States or elsewhere (Garcia Dep. Tr.
5-7, 9). Garcia arrived in the United States in 1983. Prior to
his employment as a PA at Otisville between 1983 and 1985,
Garcia was employed in the medical records department of a
hospital. Otisville was Garcia's first position involving the
care and treatment of patients (Id. at 10).
The court has carefully reviewed the testimony of the six
witnesses at trial, the depositions, the stipulated facts, the
numerous documentary exhibits, and the thorough post-trial
proposed findings of fact and conclusions of law submitted by
counsel for the parties, and makes the following findings and
conclusions, in accordance with Rule 52, Fed.R.Civ.P.:
Williams' general personal history and the background of
At the time of trial, Williams was 52 years of age (born
August 7, 1937) (Tr. 12) and in 1979 at the age of 42 had been
diagnosed as having adult onset diabetes mellitus (Tr. 22).
Williams, a former drug user (until 1978), has spent a
substantial portion of his adult life in the state and federal
prison systems for conviction of various felonies, including
possession of narcotics (Tr. 12, 40, 86, 104-05, 119). He
entered the federal correctional system in 1978 (Tr. 83).
Williams was a former narcotic drug user: he smoked marijuana
cigarettes in 1958-59 (Tr. 41); he "mainlined" (injected
himself intravenously in his arms and legs) and "snorted"
heroin (through the nose) during the period of approximately
1960 to 1970; and also used cocaine periodically until 1978
(Tr. 40-2, 106). In addition to using narcotics, Williams
heavily consumed alcohol, occasionally to the point of
intoxication and unconsciousness, starting at the age of 16
years and continuing until 1978 when he was 41 years of age
(Tr. 38-9, 109-110). Along with the use of narcotics and
alcohol, Williams began smoking at the age of sixteen, and at
various times he smoked 20 or more cigarettes per day. At the
time of trial, Williams had reduced his cigarette consumption
to some 10 cigarettes per day (Tr. 36-37).
Sometime between 1978 and 1980, plaintiff was initially
diagnosed as having diabetes mellitus based upon abnormal test
results of a urine analysis performed at the Medical Department
of the New York Metropolitan Correctional Center. Williams was
also diagnosed by the prison medical staff at Leavenworth as a
diabetic (Tr. 21-22). In 1981, Williams was prescribed insulin
treatment while at Leavenworth, but after about a year he was
changed to an oral antidiabetic treatment, i.e., Diabenese, 250
mg. twice per day. Oral antidiabetic medication and dieting
effectively controlled his diabetes during his incarceration at
Following Williams' amputation at Horton Memorial Hospital in
Middletown, New York in September 1985 and a rehabilitation
period of several months at a federal facility in Springfield,
Missouri ending in January, 1986, Williams returned to
Otisville where after a brief period of "medical unassignment,"
he worked at cleaning and repairing furniture (Tr. 112-113).
In the 1987 to 1989 period, Williams was incarcerated in
successively lower security federal correctional institutions
at Danbury, Connecticut and Loretto, Pennsylvania, and finally
in a halfway house located at Philadelphia, Pennsylvania where
he resided for about two months. Plaintiff was then paroled on
May 15, 1989 to the Southern District of New York and at the
time of trial resided with his mother in New York City.
Although Williams had not been a drug user for more than ten
years, the terms of his parole required that Williams enroll in
a drug after-care program for one year, which he attended twice
Plaintiff commenced the instant medical malpractice action
against the United States on March 11, 1988 while still a
federal prisoner. Williams claims that at Otisville, the
government provided him with improperly fitting shoes and
negligent medical care regarding the diagnosis and treatment of
his foot infection, all of which allegedly led to gangrene and
the below-the-knee amputation of his right leg on September 30,
1985. Consequently, Williams' medical history during his
incarceration at Otisville, and his subsequent hospitalization
and rehabilitation will be the main focus of the Findings of
Williams' pertinent medical history
At age 48, Williams was transferred from Leavenworth, Kansas
to Otisville on February 11, 1985 (Tr. 21).*fn6 Otisville
provided its inmates with an "in house" medical staff, and
commencing on February 13,
1985, and from time to time throughout his incarceration at
Otisville, plaintiff received care and treatment at the
institution, as reflected in his medical chart maintained by
the institution (Amended Pretrial Order, Agreed Findings of
Fact, par. 8). The Chief Medical Officer at Otisville in 1985,
Dr. Rossi, was assisted by seven physician assistants and six
other medical support staff personnel (Tr. 355). Dr. Rossi was
the only physician assigned full time to Otisville, but outside
medical specialists were also called in by the Institution
periodically as needed (Tr. 355, 359, 365-66).*fn7
Significantly, no outside medical specialist was ever called in
for consultation at Otisville concerning Williams' foot
For diabetic inmates, Otisville provided a special clinic
which monitored their fasting blood sugar levels on a monthly
basis, prescribed medications, and furnished test tape for
inmates to self-monitor the sugar level in their urine (Rossi
Dep. Tr. 25-6; Tr. 357-58, 367-68). Additionally, Otisville
provided special diets for diabetic inmates (Tr. 359-60).
Williams was known by the medical staff at Otisville to be
diabetic when he arrived, and was immediately assigned to the
diabetic clinic and his condition evaluated (Amended Pretrial
Order, Agreed Findings of Fact, par. 6; Tr. 33). When Williams
was transferred to Otisville in February 1985, he was using up
to 500 mg. of Diabenese per day, an oral medication for
controlling diabetes that had been prescribed for him by the
medical staff at Leavenworth (Tr. 21-22). Williams' blood sugar
and urine tests indicated that during his incarceration at
Otisville Williams' diabetes was generally kept well under
control. Therefore, Williams was continued simply on Diabenese
coupled with a diabetic diet regimen.
With but few exceptions, Williams attended the mandatory
monthly appointments at the diabetic clinic from the time of
his transfer to Otisville in February 1985,*fn8 his blood
pressure was recorded and he was tested for his fasting blood
sugar. Williams was also frequently seen by the medical staff
at sick calls (Joint Exh. 1A, G001064-G001072).
Upon his arrival at Otisville, Williams was wearing properly
sized eight street shoes. But despite his diabetic condition,
he was furnished in their place and required to wear ill-fitted
size 10 1/2 institutional work shoes (Amended Pretrial Order,
Agreed Findings of Fact, par. 10; Tr. 22, 86). Not until March
1, 1985 was Williams able to obtain a size 9 1/2 work shoe from
the prison's "clothes box" (apparently clothing discarded by
the inmates); and not until April 1, 1985, did Williams obtain
correctly sized 8 1/2 institutional shoes from another inmate
(Tr. 22-3, 87).
An entry in Williams' medical chart for this date shows a
diagnosis of "Dermatophytosis [fungal infection on the skin] of
both palms reflecting a chronic tinea [fungal] infection of
toes." (Joint Trial Exh., 1A, G001068) (Tr. 666). An antifungal
medication (Desitin) was prescribed for nightly application to
Williams' feet, and "also [the] insoles to both shoes."
In his deposition, Dr. Rossi testified that dermatophytid all
over Williams' hands, were "systemic manifestations of a
chronic fungus, usually from the feet." Dr. Rossi explained:
"the reason you see dermato — little circular — phytids here
is because we are created with the same skin. The palms are the
same skin as the soles of the feet. And it's very common that a
diagnosis can be made of the fungus infection of the
toes just by looking at one's palms" (Rossi Dep. Tr. 43,
Further, regarding Dr. Rossi's first examination of Williams,
Dr. Rossi noted: "scaling of both palms, reflecting, in my
opinion, a chronic fungus infection of his toes"; by looking at
Williams' feet, Dr. Rossi was able to connect the tinea
infection on his hands with the same condition in his toes
(Rossi Dep. Tr. 60).
Williams' prescription for Desinex was refilled, indicating
continued treatment of his fungal infection. Despite the fact
that there are no further entries in Williams' chart regarding
his fungal infection, there is no evidence that the fungal
infection was successfully treated and no longer a problem
anytime after this date. Athlete's foot, even if successfully
treated, readily recurs, and Dr. Lord believed that the problem
persisted in September 1985.*fn9 Garcia testified at his
deposition that fungal infections of the foot are a "very
frequent malady in prisons" (Garcia Dep. Tr. 48). Garcia
further testified with regard to Williams chronic tinea
(athlete's foot), as noted on his chart for June 6, 1985, that
most people who suffer from tinea infection in the prison,
"can't get rid of it because every time they go the bathroom or
take a shower, it usually goes on and on" (Id.).
Williams complained to the medical staff at the diabetic
clinic that his institutional shoes were making his feet sore
and giving him corns, and that when walking, he had pain in his
calves (Joint Exh. 1A, G001066). Williams' request for new pair
of size 8 1/2 shoes was referred to Mr. Gard, the hospital
administrator, by PA Vander Hey-Wright (see Amended Pretrial
Order, Agreed Statement of Facts, par. 11; Joint Exh. 1A,
G001068; Tr. 89).
After a superficial clinical examination of Williams' feet,
Dr. Rossi diagnosed Williams' foot problem as early
polyneuritis of the calves (a dysfunctional condition of the
nerves of the lower extremities) (Joint Exh. 1A, G001066).
Other than squeezing Williams' calves with his hands, Dr. Rossi
performed no specific neurological tests or examination that
could have been used to rule out polyneuritis (Amended Pretrial
Order, Agreed Findings of Fact, par. 12; Rossi Dep. Tr. 69-71),
and it appears Otisville did not have the proper equipment for
such testing (Garcia Dep. Tr. 54, 62, 83), except a reflex
hammer and instruments for sensory touching (Rossi Dep. Tr.
147).*fn10 Dr. Rossi prescribed oral mega-doses of vitamins B1
and B6 for early polyneuritis, which Williams took for over two
months without success.
During an examination of Williams' feet, Dr. Rossi noted on
Williams' chart, "both nails [were] almost gone." According to
Dr. Lord, this occurrence is usually indicative of a fungal
infection (Tr. 694).
Dr. Rossi noted on Williams' chart under the July 2, 1985
entry that there was an orthopedic basis for the purchase of 8
1/2C shoes (curvature of metatarsals) and authorized their
purchase (Joint Exh. 1A, G001067). (When the shoes were
actually ordered is not clear from the record, but it appears
that Williams was not furnished these new shoes over two months
until September 12, 1985, although Otisville had received them
more than a month previously
on August 6, 1985 (see exh. 4, Tr. 172, Joint Exh. 1A,
At sick call, Williams complained to PA Vander Hey-Wright of
continued pain and tightness in his legs. The PA issued to
Williams size 8 shoe inserts to relieve his pain, and continued
Williams on his mega-dose vitamin therapy for early
polyneuritis although Williams complained that the vitamins
were not alleviating his pain (Amended Pretrial Order, Agreed
Statement of Facts, par. 13). PA Vander Hey-Wright made no
examination of Williams' legs or feet (Rossi Dep. Tr. 74).
Significantly, for the first time, Williams complained to the
medical staff specifically of pain in his right foot (Joint
Exh. 1A, G001068).*fn11 Suspecting that Williams was
continuing to suffer from polyneuritis in accordance with the
previous diagnoses, P.A. Jacob Garcia made a specific
neurological examination of Williams' right foot using a reflex
hammer, pin and brush and found tenderness on the plantar
surface (the sole) of the right foot at the base of the third
toe, but that loss of sensitivity was "superficial in this
case" (Garcia Dep. Tr. 28-9).*fn12 Garcia also used his hands
to apply pressure to Williams' feet to ascertain the location
of painful areas; the only abnormality he found from his
neurological examination was tenderness (soreness) (Id.).
Garcia was unable to detect any evidence of polyneuritis,
vascular problems, infection or other pathology in Williams'
right foot and made no diagnosis (Garcia Dep. Tr. 32, 34, 38).
Despite Williams' history of chronic tinea (fungal) infection
(see Joint Exh. 1A, entries of July 6 and 18, 1985, G001068),
Garcia failed to make a careful examination of the web spaces
between the toes of Williams' feet for breaks in the skin that
could provide an entry point for an infection. Moreover, Garcia
did not take Williams' temperature or perform any other
examination to rule out infection (Garcia Dep. Tr. 39-40).
Garcia prescribed Motrin for arthritic pain*fn13 and elevation
of the right leg at night (Amended Pretrial Order, Agreed
Statement of Facts, par. 16); Garcia authorized Williams to be
"off work" for one day because Williams could not stand for
long periods of time as required by his prison job (Joint Exh.
1A, G001068; Garcia Dep. Tr. 27).
Gessleman examined Williams at the health services clinic.
According to the entry in his medical chart, Williams
complained of "neurotype pain" in his feet; Gessleman examined
Williams to rule out diabetic neuritis, but failed to perform
any neurological testing whatever. Gessleman did not consider
infection as a possible cause of Williams' pain since based on
the examination he performed, Williams' feet appeared to look
"normal for him" (Tr. 166). Gessleman observed no swelling,
redness, unusual calluses, cuts or lacerations, but failed to
take Williams' temperature or examine the web spaces of
Williams' feet for breaks in the skin despite his history of
fungal infection. Gessleman continued Williams on the
megavitamin therapy prescribed by Dr. Rossi for diabetic
neuritis and ordered Williams to be "medically unassigned" for
five days. Accordingly, Williams was not required to report for
work, but had the freedom to go anyplace in the compound (Rossi
Dep.Tr. 84) (Tr. 164-65, Joint Exh. 1A, G001068).
Williams was next seen by PA Fred Rochacewicz at sick call on
Thursday due to Williams' persistent complaints of soreness and
tenderness on the soles of his "feet" and his request for
crutches for ambulation (Joint Exh. 1A, G001069). Rochacewicz
noted mild tenderness on the plantar surface of the right foot
in the area of the fifth toe, a few hyperkeratotic (rough or
horny skin) areas on the plantar surface of Williams' feet, but
no ulceration or erythema (inflammatory redness) of the skin.
Dorsalis Pedis pulses were palpable (indicating normal
circulation in the Dorsalis Pedis artery in the feet).*fn15
Williams' request for crutches was denied. (Approximately one
week later, Williams received a pair of crutches from PA Frank
Rochacewicz believed that early diabetic neuritis should be
ruled out, but no specific neurological testing was done.
Megavitamin therapy was continued, notwithstanding that
Williams had received no beneficial results from such therapy
after two months. New size 8 1/2C shoes (which had previously
arrived at Otisville more than one month earlier on August 6,
1985) were delivered to Williams at this point. Williams was
advised to reduce (not stop) his cigarette smoking (Joint Exh.
1A, G001069) and counselled in strict diet control. Williams
was referred to Dr. Rossi because of his continuing complaints
of foot pain (Amended Pretrial Order, Agreed Statement of
Facts, par. 19, Rochacewicz Dep. Tr. 55). (Dr. Rossi did not
see Williams until after the weekend, four days later, on
Monday, September 16th).
On Sunday, plaintiff again complained to the medical staff of
persistent tenderness and pain in his right foot, particularly
the plantar surface. At this point in time, because of intense
pain in his right foot, Williams was barely able to walk, even
assisted by a cane. As characterized by Garcia, Williams had a
"hard time walking" (Garcia Dep. Tr. 58, 63-4). Therefore,
Garcia examined plaintiff in his cell and noted that there was
tenderness on the plantar surface of Williams' right foot more
generalized and diffuse than he had previously observed on
September 6th (Garcia Dep. Tr. 55-57, 67). Garcia failed to do
appropriate neurological testing, erroneously attributed
Williams' pain to "early diabetic neuritis," prescribed Motrin
for pain and relieved Williams from work for four days (Amended
Pretrial Order, Agreed Statement of Facts, par. 20; Joint Exh.
1A, G001069). Additionally, Garcia failed to give due regard to
the fact that Williams' complaints focused on his right foot
and failed to rule out infection.
On Monday, four days after Williams had been referred to him,
Dr. Rossi saw Williams who continued to complain of pain and
tenderness in his right foot, particularly
in the sole and arch areas, extending from the plantar surface
to the medial ankle area. Dr. Rossi examined Williams' feet
looking for an orthopedic problem in Williams' arches that
could account for Williams' complaints, but Dr. Rossi found no
orthopedic problem. Without any neurological testing or
appropriate clinical examination of Williams' feet, Dr. Rossi
simply attributed the pain to polyneuritis of diabetic origin
(Rossi Dep. Tr. 96-7). Suspecting that Williams was
exaggerating his symptoms, Dr. Rossi denied Williams the use of
crutches, and seeing no emergency deferred his clinical
evaluation of Williams' complaints pending a consultation with
an internist specializing in oncology (cancer), Dr. Brooks, who
visited Otisville approximately monthly (Tr. 360).*fn16
According to Williams' chart, Dr. Rossi suspected that Williams
was "feigning medical illness" (Joint Exh. 1A, G001069) (Rossi
Dep. Tr. 95-98), but nonetheless Williams was medically
unassigned through September 27, 1985 (Amended Pretrial Order,
Agreed Statement of Facts, par. 21).
Dr. Rossi explained that in his examination of Williams, he
did not touch Williams' feet or calves or use any instruments
in his examination, and "[s]eeing no area that resembled an
orthopedic or bone defect, one has to again turn to
[i.e., assume] the diagnosis most probable in a diabetic, that
of polyneuritis" (Rossi Dep. Tr. 96-97, Tr. 620).
In the evening, while in his cell, Williams noticed a
discharge of fluid from the plantar surface of his right fifth
toe. Williams attempted to stop as much of the exudate as
possible with a tissue and waited until the following morning
On Tuesday morning, Williams reported to the health services
clinic again complaining of pain in his right foot and now
additionally of drainage from the plantar surface. P.A. Coleman
examined Williams' foot and found partial tenderness at the
medial aspect of his Achilles tendon, that plaintiff's
temperature was 99 degrees (slightly elevated), and Coleman
found a negative Homan's Sign, indicating the absence in
Williams' right leg of deep vein thrombophlebitis.*fn17
Nonetheless, Coleman's assessment was to rule out
thrombophlebitis, and failed to consider infection as a
possibility. Coleman palpated the cord in Williams' leg to
check the circulation, prescribed Darvocet for pain (a "very
powerful" narcotic analgesic, much stronger than Motrin) (Tr.
104, 121), daily warm soaks, directed Williams to keep his leg
elevated, and gave Williams the privilege of using the "early
chow line" (Amended Pretrial Order, Agreed Statement of Facts,
Unfortunately, despite drainage, pain and slightly elevated
temperature, Coleman failed to make a proper clinical
examination of Williams' foot to rule out entry of an infection
in the web spaces (Joint Exh. 1A, G001070, Tr. 370). Apparently
unsure of his assessment and the seriousness of William's
condition, Coleman referred him to Dr. Rossi (Tr. 371).
Shortly following Coleman's examination of Williams, Dr.
Rossi examined Williams' right foot and found an "infectious
discharge from below the right fifth toe" (Joint Exh. 1A,
G001070), described in Coleman's deposition as "pus" (Tr. 395).
There was a "fistula" (a tiny opening approximately the size of
a ballpoint pen) at the point of the discharge (Tr. 371-72). In
view of an apparent infection in Williams' diabetic foot, Dr.
Rossi now became concerned and prescribed Keflex (an oral
antibiotic) for ten days, ordered a white blood cell count and
a culture be taken of the
infectious discharge for identification and sensitivity testing
by an outside laboratory (Roche Laboratories), and a
"Diagnostic 800" blood analysis by Roche Laboratories (Amended
Pretrial Order, Agreed Statement of Facts, par. 23; Tr. 373;
Rossi Dep. Tr. 101; Garcia Dep. Tr. 88). Dr. Rossi was now
quite concerned about Williams' problem, since as a diabetic
patient Williams could not "afford to have infections in the
small toes" (Rossi Dep. Tr. 112, 114; Garcia Dep.Tr. 92).
According to Coleman, culture results normally required 48
hours (Tr. 397-98), and therefore a report was expected by
Thursday or Friday at the latest.*fn18 Sadly, Dr. Rossi took
no steps to assure that would occur (Rossi Dep. Tr. 113), or
gave any direction to Roche to expedite the report on the
culture. Williams was instructed to take daily whirlpool soaks
for his foot and elevate his leg (Joint Exh. 1A, G001070). With
regard to the drainage, no surgical procedure was performed.
Despite clear indications that Williams had a severe foot
infection and was in intense pain, Williams was required by Dr.
Rossi to continue walking to the hospital several times a day
(a distance of approximately two to three city blocks from his
housing unit) for his medication, and to walk to the "early
chow line" several times a day for his meals. Williams could
hardly bear to put any weight on his infected right foot and
necessarily had to hobble on crutches as best he could until
September 22, 1985 when the pain became so overwhelming he was
no longer able to ambulate to the hospital for his medication.
Williams described his predicament in the following terms:
At that time [when he had to report to the
hospital for his medication] I was in so much pain
that to travel any distance on the crutch I would
have to stop. I was full of fever, sweating. By
the time I could reach the hospital it felt like I
was going to faint. So I informed one of the PA
assistants, Trueblood, that I wasn't going to
continue to make the trip for medication because
it took too much out of me, I couldn't make it,
and he informed me that he would have one of the
yard officers bring the narcotic [Darvocet] pill
down to the unit.
Hence, even on Tuesday, September 17, 1985, when his foot
infection became all but patently obvious, Williams was still
required to walk rather than confined to absolute bed rest, or
even admonished by the medical staff not to walk. "Early chow
line" simply meant that Williams had the privilege of walking
earlier to the cafeteria to obtain his meals (Rossi Dep.Tr.
116). Dr. Lord's testimony amply supports a finding that
Williams' infection was significantly aggravated by continued
walking. The spreading and intensifying foot pain coupled with
such an overt sign of infection as drainage of pus, were
important warning flags and symptoms of possible serious
trouble down the road.
The entry in Williams' medical chart (Joint Exh. 1A, G001070)
shows Coleman reported that the blood drawn on September 17th
had an abnormally high white blood cell count of 16,100 (normal
count is 4,000 to 10,000 (Tr. 396-97)). Such high white cell
count coupled with the pus exudate from the fistula and severe
pain in his foot, constituted a syndrome plainly indicative of
a severe spreading infection and cellulitis in Williams' right
foot. In light of Williams diabetic condition, an expedited
report on a culture of the infectious organism and immediate
appropriate surgical and medical intervention (as outlined
infra) were indicated. Williams, however, was simply maintained
on the oral antibiotic
Keflex pending a report from Roche on the culture, and the
narcotic painkiller Darvocet. Although it was Thursday and
hence had already been two days since the culture was sent to
Roche, no effort was made by Dr. Rossi to expedite the report
from Roche notwithstanding that he had expected a telephone
report of the results within 24 hours of taking the culture
(Rossi Dep.Tr. 113).
On Friday, no report from Roche had yet been received by Dr.
Rossi. Notwithstanding the upcoming weekend, the Otisville
medical staff did not contact Roche to ascertain whether a
written or telephonic report could be expedited and obtained
Williams was still required to do substantial walking to
obtain his medication and meals, and pending the laboratory
report, was to receive only oral antibiotics and Darvocet.
On Saturday night, while attempting to get out of bed,
Williams put weight on his painful right foot and fell (Tr.
495). However, there is no evidence his right foot was injured
in any way by the fall.
Early Sunday morning, at 12:32 A.M., PA Gessleman was called
by a guard to Williams' "housing unit" because Williams was now
in intense pain, needed pain medication, but was not even able
to walk to the "pill line" (Tr. 180-82, Joint Exh. 1A,
Gessleman found Williams' temperature significantly elevated
(99.8 degrees), his right foot severely swollen, and there was
a bloody discharge (reddish serosanguinous fluid, probably
blood mixed with infectious material) from the plantar surface
of the right foot, medially of the fifth toe. A very serious
infection should have been highly suspect to medically trained
personnel, and Gessleman correctly noted on Williams' chart to
"rule out infection" (Tr. 181, 188, Joint Exh. 1A,
G001070).*fn19 However, by now Gessleman thought that
Williams' foot was too painful to manipulate his toes to make
a proper examination of the web spaces where an infection could
have entered. Gessleman provided Williams more Darvocet for
pain and directed him to report to the sick line as soon as
possible. Although Dr. Rossi was available, Gessleman did not
call him (Tr. 190-91).
At approximately 9:30 A.M., Williams' right foot was now in
obviously precarious condition. Garcia had been called to
Williams' cell by a guard, and he observed that Williams had a
warm right foot which was painful, red, had a tumor-like
appearance, and was discharging infectious material (Garcia
Dep.Tr. 72, 78-80). Williams was now diagnosed as having a
right foot infection (Garcia Dep.Tr. 72-3).
Unfortunately, by this time, the infection had already spread
extensively in Williams foot and was discharging below the
fifth toe. Williams could no longer walk and was taken by a
member of the medical staff in a wheel chair to the prison
hospital and admitted (Tr. 194-95, Joint Exh. 1A, G001071,
Garcia Dep.Tr. 72, 118). Williams was informed that
arrangements were being made to transfer him to an outside
hospital. While in the Otisville hospital, Williams received
oral antibiotics (Keflex) for his infection, Darvocet for pain,
leg elevation and whirlpool soaks.
By 4:30 P.M. on September 22, 1985, Williams' right foot
continued to worsen and PA Rochacewicz observed a draining
infectious material oozing through a fissure on the plantar
surface at the fifth toe (Rossi Dep.Tr. 120). The Darvocet was
simply masking Williams' pain to some extent, but he still had
mild tenderness and swelling in his right foot. Williams'
Dorsalis Pedis pulse was intact, indicating he still had normal
circulation in his foot and therefore no vascular problem (Tr.
499, 528). Williams' condition was diagnosed as an infection in
his right foot (Tr. 469). Dr.
Rossi was informed of Williams' status and admission to the
prison hospital, and Williams was to be seen by Dr. Rossi the
following morning, Monday (Rochacewicz Dep.Tr. 62). Since no
laboratory report had yet been received from Roche, Rochacewicz
continued Williams on Keflex and Darvocet (Pretrial Order,
Agreed Statement of Facts, par. 25; Joint Exh. 1A, G001071, Tr.
PA Donald Moore monitored Williams' condition during the
early Monday morning hours. Williams complained of pain and was
given Darvocet and Keflex, but nothing else eventful occurred
until 8:00 A.M. (Joint Exh. 1A, G001072). By 8:00 A.M. Williams
was febrile, had a very high white blood cell count of 16,000
and marked cellulitis of the right leg with a suppurative
drainage beneath the toes of his right foot, all indicative of
a severe and spreading infection. It was also apparent that
Williams' infectious condition in his right foot had
substantially worsened in the previous 24 hours.
By that time, Dr. Rossi had received the results of the
culture of the infectious discharge (taken six days before on
September 17, 1985) by telephone from Roche, and the infectious
bacterium was identified as E. Coli. Such organism is a normal
inhabitant of the intestinal tract, but if it invades other
tissues, "it is quite complicated to treat" (Rossi Dep.Tr.
113). Unfortunately, the type of E. Coli infecting Williams'
foot had no sensitivity to the Keflex antibiotic that Williams
had been given orally by Otisville since September 17, 1985.
Testing showed that the E. Coli culture was sensitive only to
the antibiotics Gentamicin, Tobramycin and Carbenicillin, each
drug requiring the intravenous route of administration.
Dr. Rossi determined that Williams was in immediate need of
intravenous antibiotic treatment. Otisville had no facilities
for intravenous administration of antibiotics, and thus it
became necessary to send Williams to an outside hospital
immediately. Thus, on Williams' medical chart, there is an
entry for September 23, 1985: "medical basis for immediate
hospitalization to have I.V. therapy through mainline since no
peripheral veins available (old drug user)" (Amended Pretrial
Order, Agreed Statement of Facts, par. 28; Joint Exh. 1A,
G001072). There is no indication on Williams' chart in the
entries for either September 22 or 23, 1985 that Williams was
diagnosed as suffering from any diabetic vascular disorder or
diabetic neuritis. Williams was then transferred on that day to
Horton Memorial Hospital, a private hospital in Middletown, New
York, located near Otisville (Joint Exh. 2, at 1), essentially
for emergency treatment of the right foot infection by
high-dose intravenous antibiotic administration of one of the
antibiotics to which the E. Coli was sensitive. There is no
evidence that when Williams was transferred from Otisville to
Horton on September 23, 1985 he suffered from any gangrene,
although his infection was now in a very advanced stage and the
chances of avoiding an amputation had declined precipitously
from September 6, 1985 (Tr. 524).
To further compound Williams' difficulties and diminish what
little chance remained of saving his leg by appropriate
treatment, and following its not uncommon practice, Otisville
transferred Williams to Horton Hospital without sending along
his medical records or even a brief note by Dr. Rossi
concerning Williams' E. Coli infection and the reason why
Williams was being transferred to Horton (Rossi Dep.Tr.
Williams entered Horton Hospital through the emergency room
unaccompanied by any medical history from Otisville. Williams
reported that he had been experiencing severe pain in his right
foot for four weeks which was progressively worsening; that his
right foot was inflamed and swollen; and that he was unable to
walk on it. Williams testified that when he first arrived at
Horton from Otisville, he was "in pain to the extent that if
[he] had a pistol, [he] would have shot the foot off" (Tr.
Later in the day on September 23, 1985, Williams was examined
by a surgeon, Dr. John B. Ellison, who observed in his report
of September 26, 1985 that Williams had "a swollen, painful
right foot with considerable inflammation with blistering about
the right small (fifth) toe and about the plantar surface of
the foot and about the ankle."*fn20 No gangrene in Williams'
foot was observed by Dr. Ellison at his initial examination of
Williams. Dr. Ellison further noted in his report that Williams
had intermittent claudication characterized by pain on level
and uphill walking due to loss of circulation in the legs and
feet; that Williams had no obvious peripheral neuropathy since
he could sense pain in the toes and feet; and that bilateral
(in both legs) femoral, but no distal pulses were noted in
either leg.*fn21 This latter finding persuaded Dr. Ellison
that Williams had an essentially ischemic condition causing
tissue oxygen deficiency (Tr. 449). Such inschemia was due to
an occlusion or blockage of the major arterial system in
Williams' thighs just above the knees before it branches into
the circulation that is necessary to nourish the calf and foot.
Such circulatory blockage is frequently caused by an
arteriosclerotic condition ("hardening" of the arteries or a
build-up of deposits inside the arteries that eventually
occludes them). Dr. Ellison's impression was: "Infection right
foot, especially right fifth toe, Probable web space infection
ischemic in nature" (emphasis added). Regarding the possible
presence of infection, Dr. Ellison's impression at the time was
that Williams' problem was due to loss of circulation, "and
what infection was present was really a superficial, on the
surface process" (Tr. 311-12, 314-15, Joint Exh. 3, G276). On
admission to Horton, Williams' temperature was normal, but
within one day it rose to between 100-101 degrees.
Tragically, when Dr. Ellison was treating Williams in
September and October 1985, he admittedly had not received any
of Williams' prior medical records from Otisville and was
completely unaware that Williams had been diagnosed by Dr.
as having an E. Coli infection, as reported by Roche
Laboratories, and had been transferred to Horton for
intravenous administration of antibiotics. Dr. Ellison,
mistakenly, assumed that whatever infection existed, if any, in
Williams' right foot was purely superficial and merely a
sequela of the development of necrotic tissue resulting solely
from loss of circulation (or ischemia) in the tissues.*fn22
Furthermore, considering Dr. Ellison's premise of a circulatory
occlusive process as the sole cause of the rapidly progressing
gangrenous condition in Williams' foot, the incidental presence
or absence of an infectious agent and its genesis (ischemia or
something else) were not, in Dr. Ellison's mind, critical to
the appropriate treatment of Williams' condition (Tr. 319).
Consequently, since Dr. Ellison erroneously perceived Williams'
critical limb-threatening problem to be essentially
ischemic,*fn23 high-dose intravenous antibiotic therapy with
Gentamicin, Tobramycin or Carbenicillin was never instituted at
Horton, contrary to Dr. Rossi's purpose for transferring
Williams to Horton. Totally unaware that Williams was sent to
Horton with an E. Coli infection for treatment with high-dose
intravenous antibiotics (which was crucial to even the very
slight chance remaining for halting the progression of
infection and heading off gangrene), and based upon his faulty
clinical impression that Williams' difficulty was primarily
ischemic, Dr. Ellison prescribed as simply a prophylactic
measure against supervening infection (Tr. 321) an
oral antibiotic (Ampicillin), which according to Dr. Boxhill in
his letter of August 4, 1989, "would actually have been less
effective against the infecting E. Coli than the Geocillin
which Mr. Williams had received already at Otisville" (emphasis
When Dr. Ellison debrided Williams' right foot, lacking the
Otisville medical records, he erroneously believed that there
was no infection (except possibly for a supervening,
on-the-surface process and normal sequela to necrosis), but
that the underlying necrotic tissue in the fourth and fifth web
spaces had developed due to an occlusive process in the blood
vessels resulting in loss of circulation to the skin, the fat
tissues and muscles beneath. Dr. Ellison testified that the
great majority of amputations of the leg and toes of diabetics
is due simply to loss of ...