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September 19, 1990


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:



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 amputation.

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 further contends that, in any event, the diagnosis and treatment of Williams' foot infection by the medical staff at Otisville met accepted standards of medical practice and treatment in that community at the time.*fn1

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 the knee.

For the reasons that follow, judgment is entered for plaintiff.


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.

The Government adduced as fact witnesses Dr. John B. Ellison and Francis Coleman. Dr. Ellison is a board certified general surgeon affiliated with the Horton Memorial Hospital, a private hospital in Middletown, New York, and is the surgeon who amputated Williams' right leg on September 30, 1985. Coleman was employed as a physician's assistant at Otisville from 1983 to 1988. Defendant also presented as an expert witness Dr. Carlton Boxhill, an internist specializing in diabetes. Dr. Boxhill, like Dr. Lord, has impeccable credentials.*fn3

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. 5).*fn4

2. Jayne Vander Hey-Wright, PA at Otisville since June 24, 1985.

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
                         this litigation

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).

During periods when he was not incarcerated, Williams held short term jobs as a delivery clerk, stock clerk and construction worker, earning from $20.00 to $150.00 per week. (Tr. 12-20). Following a conviction for armed bank robbery in 1980, Williams commenced serving his sentence of fourteen years at the United States Penitentiary in Leavenworth, Kansas (Tr. 20, 117, Deft's Exh. 1). Plaintiff's education terminated at the equivalent of the ninth grade in 1987 while imprisoned at Leavenworth (Tr. 11-12).

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 Otisville.

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 a week.*fn5

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 Fact.


Williams' pertinent medical history

February, 1985

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).

June 6, 1985

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." Id.

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, emphasis added).

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).

June 18, 1985

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.).

July 1, 1985

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).

July 2, 1985

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, G001069)).

July 12, 1985

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).

September 6, 1985

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).

September 9, 1985

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).

Another entry on Williams' chart for September 9, 1985 by Dr. Rossi makes reference to "intermittent claudication," but there was no examination of Williams' Dorsalis Pedis pulses or any other vascular testing or examination of Williams' feet that would have confirmed such diagnosis (Id.; Rossi Dep. Tr. 81)*fn14 Dr. Rossi granted Williams the use of a cane with which Williams was able to walk by leaning on it with both hands and maneuvering his right foot at different angles to mitigate the pain.

September 12, 1985

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 Coleman.)

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).

September 15, 1985

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.

September 16, 1985

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 for treatment.

September 17, 1985

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, par. 22).

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.

Tr. 61-2.

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.

September 19, 1985

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).

September 20, 1985

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 immediately.

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.

September 21, 1985

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.

September 22, 1985

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, G001070).

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. 186-87).

September 23, 1985

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. 128-130).

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. 132).

The Horton emergency room physician who initially examined Williams was able, from his clinical examination and questioning of Williams, to accurately diagnose Williams' condition as "severe cellulitis, infection of right foot" (Joint Exh. 2, at 2). No gangrene was evident at that point in time.

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. Rossi 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 added).

September 24, 1985

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 ...

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