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Frank Dichiara v. Dr. Lester N. Wright

March 31, 2011

FRANK DICHIARA,
PLAINTIFF,
v.
DR. LESTER N. WRIGHT, DR. ALEXIS LANG, DR. JOHN PERILLI, DR. MIKULAS HALKO, NURSE KIMBERLY CAPUANDO, NURSE HANSEN, DR. EDWARD SOTTILE, DR. JOHN SUPPLE, DR. JENNIFER MITCHELL, AND DR. FELIZ EZEKWE,
DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATION

Plaintiff Frank DiChiara ("plaintiff"), who from 1979 to 2007 was incarcerated under the custody of the New York State Department of Corrections ("DOCS"), commenced this action against Dr. Lester N. Wright, Dr. Alexis Lang, Dr. John Perilli, Dr. Mikulas Halko, Nurse Kimberly Capuano, Nurse Hansen, Dr. Edward Sottile, Dr. John Supple, Dr. Jennifer Mitchell, and Dr. Feliz Ezekwe (collectively, "defendants"), medical personnel and staff employed by the DOCS, alleging that defendants were deliberately indifferent to his medical needs while he was incarcerated, in violation of the Eighth Amendment to the United States Constitution. (See ECF No. 1, Compl.)*fn1 Specifically, plaintiff alleges that defendants were deliberately indifferent to his medical needs by: (1) delaying his treatment for Hepatitis C for one year, (2) terminating his treatment for Hepatitis C after 48 weeks, and (3) refusing to re-treat his Hepatitis C after the initial treatment was terminated. (See id.) After completing discovery, defendants notified the court of their intention to move for summary judgment. (See ECF No. 98, Proposed Mot. for Summ. J.) The court referred defendants‟ anticipated motion to Magistrate Judge Lois Bloom for a Report and Recommendation pursuant to this court‟s authority under 28 U.S.C. § 636(b). (See ECF Order Referring Mot. dated 12/16/2009.)

On January 6, 2011, Judge Bloom issued a Report and Recommendation ("Report & Recommendation"), recommending that the court grant defendants‟ motion for summary judgment in its entirety. (See ECF No. 115, Report & Recommendation dated 1/6/2011 ("R&R").) The Report & Recommendation instructed the parties that any objections to the Report & Recommendation were due within fourteen days, by January 20, 2011. (See id. at 22; ECF Docket Entry accompanying R&R.) Plaintiff requested an extension of time to file objections to the Report & Recommendation, and this court granted an extension until January 27, 2011. (See ECF No. 116, First Mot. for Extension of Time to File Objections; ECF Order dated 1/22/2011.) Plaintiff failed to file timely objections to the Report & Recommendation, instead filing his objections on January 28, 2011. (See ECF No. 117, Objection to R&R dated 1/27/2011, filed on 1/28/2011 ("Pl. Obj.").) Defendants filed a timely reply to plaintiff‟s objections on February 17, 2011. (See ECF No. 118, Reply in Supp. of R&R dated 2/17/2011 ("Defs. Reply").)

For the reasons set forth below, the court adopts in part and modifies in part the Report & Recommendation, and grants defendants‟ motion for summary judgment in its entirety.

STANDARD OF REVIEW

To the extent that a party makes specific and timely objections to a magistrate judge‟s findings or recommendations, the court must apply a de novo standard of review. 28 U.S.C. § 636(b)(1); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Upon such de novo review, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). However, where no objection to a Report & Recommendation has been filed, the district court ""need only satisfy itself that there is no clear error on the face of the record.‟" Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)).

Here, plaintiff failed to make timely objections to the Report & Recommendation, instead filing his objections one day late. (See ECF Order dated 1/22/2011 (granting plaintiff until 1/27/2011 to file objections to the R&R); Pl. Obj. (filed on 1/28/2011.) Plaintiff has provided no justification for his delay in filing his objections, nor has he requested that the court consider his objections despite his untimeliness, and the court may decline to do so. Nonetheless, the court will consider plaintiff‟s objections to Judge Bloom‟s Report & Recommendation, and therefore conducts a de novo review of the full record including the applicable law, the pleadings, the parties‟ submissions in connection with the instant motion for summary judgment, the Report & Recommendation, and plaintiff‟s objections and defendants‟ responses to the Report & Recommendation.

BACKGROUND

The court presumes familiarity with the underlying facts and procedural history as set forth in more detail in the Report & Recommendation. (See R&R at 1-7.) Those undisputed facts, except where noted, facts are repeated here only to the extent necessary to inform the court‟s analysis.

Chronic hepatitis C is a liver disease caused by infection with the hepatitis C virus ("HCV"). (ECF No. 106, Defs. Rule 56.1 Statement ("Defs. 56.1 Stmt.") ¶ 25.) The natural history of the infection is variable, with 20% progressing to cirrhosis of the liver. (Id.) The current best Food and Drug Administration ("FDA") approved treatment is antiviral therapy consisting of a combination of pegylated interferon alpha 2a or 2b (Pegasys or Pegintron) and ribavirin. (Id. ¶ 26.) Under National Institute of Health ("NIH") Guidelines, the recommended length of treatment for patients infected with HCV genotype 1 is 48 weeks. (ECF No. 104-7, Declaration of Dr. Lester Wright ("Wright Decl."), Ex. E, NIH, Chronic Hepatitis C: Current Disease Management ("NIH Guidelines") at 10, 12, 18; ECF No. 110, Affirmation of Anthony Ofodile ("Ofodile Aff."), Ex. 3, Deposition of Dr. Franklin Klion ("Klion Dep.") at 28 (admitting that "the approved treatment period was forty-eight weeks").) The desired result from the therapy is a sustained virologic response ("SVR"), meaning that the virus is not detectable in the blood at the conclusion of therapy and six months after the conclusion of treatment. (Defs. 56.1 Stmt. ¶ 26.)*fn2 The most important predictors of response to therapy are the genotype, which is the genetic subtype of the virus, and the viral load, which is a measure of viral particles in the blood. (Id. ¶ 27.) Patients infected with genotype 1, as was plaintiff, are less responsive to treatment than patients infected with genotypes 2 or 3. (Id.) Patients with a high viral load, defined as greater than 2 million copies/mL, are less responsive to therapy than patients with a low viral load. (Id.) Further, adherence to the therapy is important, as patients with less than 80% adherence to the therapy have a reduced likelihood of SVR. (Id.) The NIH has no recommendation regarding the re-treatment of patients who fail to clear the virus after an initial course of therapy, but the guidelines note the existence of ongoing studies in this area. (Defs. 56.1 Stmt. ¶¶ 28, 59; NIH Guidelines at 18.)

DOCS has developed a Hepatitis C Primary Care Practice Guideline ("PCPG"), approved by Dr. Wright in his role as Deputy Commissioner and Chief Medical Officer for DOCS, which governs the treatment of inmates in DOCS custody that have been diagnosed with HCV. (Defs. 56.1 Stmt. ¶ 29.) From 1997 through approximately October 13, 2005, the PCPG required that all inmates enroll in a six month Alcohol and Substance Abuse Therapy ("ASAT") program prior to receiving treatment for HCV. (Id. ¶ 33.) From 1997 through approximately October 13, 2005, the PCPG also required that an inmate have enough remaining time of incarceration to complete the HCV treatment, which was 15 months for those infected with genotype 1 HCV. (Id. ¶ 34.) Pursuant to the PCPG, physicians at DOCS facilities can recommend that an inmate be treated for HCV, and Dr. Wright makes the final determination regarding treatment. (Id. ¶ 32.)

Plaintiff was incarcerated under the custody of DOCS from 1979 until he was paroled in 2007. (Id. ¶ 22; ECF No. 104-1, Declaration of Kevin Harkins ("Harkins Decl."), Ex. C, Inmate Information for Frank DiChiara.) Plaintiff asserts that in 1997, while he was incarcerated at Sing Sing Correctional Facility, he first learned that he was infected with HCV. (ECF No. 112, Affidavit of Frank DiChiara ("Pl. Aff.") ¶ 2.) A member of the medical staff informed plaintiff that his HCV infection was at an early stage at that time, and that treatment was not yet appropriate. (Id.) On May 16, 2002, a blood test revealed that plaintiff‟s viral load had increased significantly, to more than 1 million copies/mL. (Defs. 56.1 Stmt. ¶ 37.) A liver biopsy was ordered to assess the progression of the HCV infection in plaintiff, which was conducted on February 27, 2003. (Id. ¶ 38.) The liver biopsy revealed chronic Hepatitis C grade 2, stage 2-3, meaning that there was some inflammation and a moderate to significant amount of scarring on plaintiff‟s liver. (Id.) There is no evidence on the record regarding plaintiff‟s viral load at the time of the liver biopsy. Further, plaintiff was infected with genotype 1b of the HCV virus, which is less responsive to treatment than other genetic subtypes of the virus. (Id. ¶ 36.)

On April 24, 2003, pursuant the PCPG, Nurse Capuano attempted to enroll plaintiff in ASAT in order to fulfill the requirement for his HCV treatment. (Id. ¶ 40.) Plaintiff refused to enroll in ASAT, complaining that he had no history of alcohol or substance abuse. (Id. ¶ 42; Pl. Aff. ¶ 5; see also Pl. Aff., Exs. 5-6.) On or about April 25, 2003, plaintiff was denied treatment for his HCV infection. (Defs. 56.1 Stmt. ¶ 41; Pl. Aff. ¶ 6.) Pursuant to the PCPG, a member of the DOCS medical staff noted on plaintiff‟s Ambulatory Health Record, dated April 28, 2003, that the ""correctional counselor thinks [plaintiff] is likely to have less time remaining than treatment would take, do not submit‟ -- [Treatment] for HCV Denied." (Defs. 56.1 Stmt. ¶ 41; Pl. Aff. ¶ 6; see also Pl. Aff., Ex. 6.) At that time, plaintiff was scheduled to appear before the parole board for the first time on February 11, 2004. (Defs. 56.1 Stmt. ¶ 43; Harkins Decl., Ex. C, Inmate Information for Frank DiChiara.)

Several times after the denial of treatment, plaintiff requested that treatment for his HCV begin, complaining of "unbearable body itching, fatigue, loss of memory, loss of coordination, insomnia and confusion[,] [and] red bloody pimples resembling angiomas . . . all over [his] torso and abdomen." (Pl. Aff., Ex. 4, Ltr. from DiChiara to Wright dated 3/20/2003; see also Pl. Aff., Ex. 11, Ltr. from DiChiara to Wright dated 2/23/2004 (complaining of feeling "pain in the liver section, weakness, confusion, indigestion, itching, stiffness and sleepless[ness]").) In January 2004, plaintiff agreed to enroll in ASAT. (Defs. 56.1 Stmt. ¶ 42; Pl. Aff. ¶ 7.) On or about February 11, 2004, plaintiff appeared before the parole board and was denied parole. (Defs. 56.1 Stmt. ¶ 43.) After the denial by the parole board, plaintiff was approved for combination therapy on March 18, 2004. (Pl. Aff. ¶ 8; Pl. Aff., Ex. 12, Ltr. from Dr. Lang to DiChiara (noting that treatment had been approved and would begin soon).) On April 5, 2004, over one year after the liver biopsy revealed chronic HCV grade 2, stage 2-3, plaintiff began treatment for his HCV infection. (Defs. 56.1 Stmt. ¶ 44.) There is no evidence on the record regarding plaintiff‟s viral load at the time he commenced treatment. Plaintiff was treated with an antiviral therapy consisting of Pegasys and ribavirin. (Id.) The medication chart indicated good adherence to therapy, with over 90% of each drug administrated for the full duration of the therapy. (Id.)

After approximately 48 weeks of treatment, on March 16, 2005, a blood test revealed that plaintiff had a viral load of 590,345 copies/mL. (Id. ¶ 46.) Plaintiff was seen by Dr. Rush, an Infectious Disease Specialist, on March 29, 2005, who recommended that the HCV therapy be discontinued. (Id. ¶ 47.)*fn3

On March 30, 2005, the treatment for HCV was terminated because after completing 48 weeks of treatment, plaintiff had not achieved SVR, meaning the virus was still detectable in his blood. (Id. ¶ 48.) Defendants continued to monitor plaintiff after termination of his HCV treatment, including performing blood work, a consultation with Dr. Rush, and another liver biopsy. (Id. ¶¶ 49-50, 52.)

In January of 2006, plaintiff began requesting retreatment of his HCV infection, complaining that his physical symptoms had returned and were becoming unbearable. (Pl. Aff. ¶ 10; Pl. Aff., Ex. 15, Ltr. from DiChiara to Dr. Mitchell dated 1/10/2006.) On April 3, 2006, plaintiff was referred to Dr. Liu at the Staten Island University Hospital for a colonoscopy, which was unrelated to his HCV. (Defs. 56.1 Stmt. ¶ 53; Pl. Aff. ¶ 12.) During that visit, plaintiff alleges that he discussed his HCV with Dr. Liu. (Pl. Aff. ¶ 12.) Dr. Liu recommended that plaintiff recommence treatment for HCV if his viral load was high. (Id.; Defs. 56.1 Stmt. ¶ 54 (noting that Dr. Ezekwe forwarded the consultant report requesting retreatment).) Dr. Ezekwe submitted a recommendation to Dr. Wright that plaintiff be re-treated for HCV, forwarding the recommendation made by the consultant, Dr. Liu. (Defs. 56.1 Stmt. ¶ 54.) Dr. Wright denied the request for re-treatment, and responded as follows: "He had a year of treatment . . . and did not have a complete end of treatment response. He has near normal ALT‟s.*fn4 Additionat [sic] treatment with currently available treatments would not be effective and are not indicated." (Id. ¶ 55; Wright Decl., Ex. H.)

On September 15, 2006, Dr. Ezekwe submitted a second recommendation to Dr. Wright that plaintiff be re-treated for HCV, indicating that plaintiff‟s ALT levels were above baseline. (Defs. 56.1 Stmt. ¶ 56.) Dr. Wright again denied the request, responding as follows: "Here is a man who has been incarcerated for 27 years and after that has only [grade 1, stage 2] disease, who has relatively low ALT and for whom the currently available [treatment] did not work. I do not know why a consult was requested in the first place. In the second place, although some people in the community treat and retreat outside of NIH recommendations and FDA approval for the indication, we have a clear primary care guideline that says we follow national recommendations. Please read and follow our primary care guideline; if there is some specific factor in an individual case that may justify going outside of the guideline then that must be clearly stated." (Id. ¶¶ 57-58; Wright Decl., Ex. G.)

Plaintiff was released from DOCS custody on parole on September 20, 2007. (Pl. Aff. ¶¶ 1, 21; Harkins Decl., Ex. C, Inmate Information for Frank DiChiara.) Shortly thereafter, plaintiff began re-treatment of his HCV infection. (Pl. Aff. ¶ 1.) After completing 72 weeks of ...


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