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Wooley v. New York State Dep't of Correctional Services

July 1, 2010


The opinion of the court was delivered by: Ciparick, J.

In this case, we must determine whether the denial of certain medical treatment to an inmate by the New York State Department of Correctional Services (DOCS) was arbitrary and capricious, or violative of the Eighth Amendment's proscription against cruel and unusual punishment. We conclude that it was neither.


Petitioner Robert Wooley has been incarcerated in the custody of DOCS since the late 1980s. Sometime prior to 2001, petitioner was diagnosed with hepatitis C, a viral infection which increases the risk of liver cancer and often leads to cirrhosis of the liver, which can cause liver failure and, ultimately, death.

In 2001, petitioner's treating physician at DOCS prescribed a combination of drugs -- interferon and ribavirin --for a course of treatment lasting 48 weeks. Petitioner initially responded well to the medication, which was the standard treatment protocol for hepatitis C at the time. At the end of the treatment period, petitioner's hepatitis C viral load was so low as to be undetectable.

Shortly before the treatment period was to end, petitioner contacted Dr. Lester Wright, the Chief Medical Officer for DOCS, by letter, requesting six additional months of the interferon/ribavirin combination treatment, followed by low-dose maintenance interferon therapy. Petitioner submitted medical literature in support of his request; he also contended that, because his hepatitis C fell within the "hard to treat" category, low-dose maintenance interferon therapy could be the only option for slowing the progression of his disease. According to petitioner, Dr. Wright did not respond to his request.

Several months later, in October 2002, petitioner wrote to Dr. Marc Stern, a DOCS Regional Medical Director. According to petitioner's letter and supporting medical tests, he had suffered a relapse following the cessation of treatment with interferon/ribavirin. He requested the continuation of the combination therapy, replacing standard interferon with a more effective, newly-developed pegylated interferon.*fn1 At the time of petitioner's request for retreatment, the FDA had not approved the use of pegylated interferon for retreatment after a course of standard interferon/ribavirin, and DOCS rejected petitioner's request for such off-label*fn2 use of the drug.

Thereafter, a consulting physician examined petitioner and recommended retreatment with pegylated interferon and ribavirin. Based on the recommendation, petitioner's treating physician again sought approval from Dr. Wright to re-treat with a 48-week course of pegylated interferon/ribavirin combination therapy. After consulting with "[his] expert," Dr. Wright decided to "approve re[-]treatment with pegylated interferon and ribavirin for up to 48 weeks."

As petitioner neared completion of re-treatment, his treating physician examined him again, and opined that he would benefit if he continued on low-dose maintenance pegylated interferon. In correspondence to a different staff physician, Dr. Wright rejected the use of maintenance therapy, observing that the recommended treatment was not supported by published studies, but that a "large study [was] ongoing to determine whether it is of any value." Dr. Wright also noted: "Any such use would be experimental... If there is something peculiar about this patient and he should be enrolled into an FDA[-]approved clinical trial in the community[,] that could be considered."

In July 2004, a second consulting physician noted that "[b]ecause of mortal consequences of progression of cirrhosis[,] maintenance therapy was proposed." Seven months later, the same physician noted that petitioner's blood test revealed an increased viral load, and he noted at the time that a "[m]aintenance dose of peg[ylated interferon] would be a reasonable strategy to stave off progression to... cirrhosis... This is an approach that has support in literature though [is] by no means proved." In 2005, a new liver biopsy revealed mild inflammation and fibrosis in petitioner's liver, but no cirrhosis.

In April 2006, an infectious disease specialist examined petitioner and suggested that consideration should be given to maintenance therapy with pegylated interferon, noting that "[t]here is evidence in published literature for this approach although [it is] not FDA approved or proven in long[-]term studies yet." In all, five doctors examined petitioner and recommended that he receive low-dose maintenance pegylated interferon. Dr. Wright again denied the request to place petitioner on low-dose therapy, prompting petitioner to file a grievance, which DOCS denied.

After exhausting his administrative remedies, petitioner commenced this CPLR article 78 proceeding to annul the determination denying his grievance, alleging that the denial of his requested treatment was arbitrary and capricious and violated his Eighth Amendment right to be free of cruel and unusual punishment. Supreme Court denied the petition and dismissed the proceeding, reasoning that DOCS's determination to deny the requested treatment was rational and did not constitute deliberate indifference to petitioner's condition in violation of the Eighth Amendment.

The Appellate Division affirmed (61 AD3d 1189). We granted petitioner leave to appeal, and now affirm.


Petitioner contends that DOCS's denial of his requested medical treatment was arbitrary and capricious. We disagree. Generally, in a CPLR article 78 proceeding, we examine whether the action taken by the agency has a rational basis (see e.g. Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]). We may overturn administrative action where it is "taken without sound basis in reason" or "regard to the facts" (id., citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). If we conclude "that the determination is supported by a rational basis, [we] must sustain the ...

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