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Albany Bureaucrats Overruled Doctor’s Orders Causing Unnecessary Suffering

ALBANY, N.Y. (July 13, 2021) — In a whistleblower lawsuit filed in United States District Court, Northern District of New York in Albany, New York, Dr. Michael F. Salvana alleges violations of his rights under the First and Fourteenth Amendments to the United States Constitution to engage in speech about patient health and safety free from discrimination and retaliation. Dr. Salvana worked for the New York State Department of Corrections & Community Supervision (“DOCCS”) as a Clinical Physician from 2003 until he was forced to resign in 2020.   He was forced from his position because he openly opposed and refused to provide substandard care to some of the sickest patients under his care and the care of the New York Department of Corrections.

“Guided by his Hippocratic Oath ‘to do good or to do no harm,’ Dr. Salvana’s primary concern throughout his professional career has been patient care and safety in underserved communities,” said Carlo A. C. de Oliveira, Esq. an attorney with Cooper Erving & Savage and co-counsel in Dr. Salvana’s whistleblower lawsuit. “He believes strongly that physicians have an ethical responsibility not to discriminate against patients on the basis of personal or social characteristics relevant to their care, which includes incarceration status.”

Dr. Salvana was subjected to discrimination and retaliation because he took actions to protect the human and constitutionally protected rights of seriously ill patients – many of whom were in pain or otherwise suffering needlessly because of the creation and implementation of DOCCS’ Medications With Abuse Potential (“MWAP”) policy. This policy denied necessary medical treatment to patients in violation of basic medical standards and quality of care requirements.

Over the course of several years since the implementation of the MWAP policy, Dr. Salvana struggled to insure medically necessary care for many critically ill patients. On many occasions, Dr. Salvana’s treatment plans were materially interfered with or denied. As a consequence, day after day, Dr. Salvana observed unnecessary suffering and inhumane treatment. At every turn, his efforts to improve the quality of care for many seriously ill patients was attacked and he was subjected to constant hostility and anger. Due to these intolerable work conditions, Dr. Salvana was forced to leave the Walsh Regional Medical Unit (RMU), denied other opportunities to serve as a physician, and ultimately was forced to retire.

The reality is that incarcerated patients have a higher-than-average prevalence of disease, as well as substance use disorders and psychiatric illness, often in combination. Prison populations also have a higher-than-normal incidence of patients with major spinal cord injuries, due to traumatic events and gun violence. Treatment protocols are also necessarily different in prisons. Diet modification, exercise and non-medicinal treatments are not as available. Patients in prisons often wait months to see specialists, receive diagnostic testing, surgeries and follow-up care. Therefore, pharmaceuticals, which already play an important role in the U.S. health care system, may take on an even greater therapeutic importance in prisons. As a result, Dr. Salvana states in his complaint that the MWAP policy was resulting in the unnecessary infliction of pain and suffering to patients in violation of the United States Constitution.

Dr. Salvana opposed DOCCS MWAP Policy from its inception because it prevented him and other doctors from providing the proper quality of care to inmates under DOCCS custody.

In or about June 2017, Dr. Salvana supervised the treatment of 152 patients at Walsh RMU who had extreme medical pathology, some whose medical histories exceeded 1,000 pages.

After the MWAP policy went into effect, many patients were denied medications that effectively treated their serious pathologies and had been previously prescribed by their treating doctor or recommended by specialists. For example, Defendant Henderson also prohibited Dr. Salvana from treating a quadriplegic patient with documented case of gastro-esophageal reflux, who often vomited while laying on his back. This patient was susceptible to aspiration, choking, and asphyxiation. He was also on a blood thinner (Coumadin), which  increased his risk of death from suffocation and bleeding from a tear in his esophagus.

This quadriplegic patient was also on increased risk of death from suffocation from bleeding from a tear of his esophagus. Dr. Salvana sent this patient to the hospital on multiple occasions due to dehydration caused by vomiting. Dr. Salvana prescribed the drug Marinol for the patient, which was the only medication that controlled the patient’s vomiting, but his request to administer this drug was denied. Without medication to control his vomiting, Dr. Salvana feared that this quadriplegic patient could need immediate medical assistance in the event that he began to vomit and choke. Dr. Salvana asked that this patient’s room be unlocked, but this request was also denied. As a consequence of speaking out and trying to protect the patient from harm, Dr. Salvana was prohibited from treating the patient and was prevented from entering this patient’s room to treat him.

“Dr. Salvana was harassed, threatened, and otherwise treated with hostility because he challenged the inhumane and negligent treatment of patients incarcerated by the state, said Richard E. Condit, an attorney with Mehri & Skalet and co-counsel on the lawsuit. “He was singled out because he spoke out and it cost Dr. Salvana his career.”

It is noteworthy that a class action lawsuit has also been filed on behalf of inmates that have been denied proper medical care because of the MWAP policy. Much of what is alleged in that case supports Dr. Salvana’s observations and concerns. The case is: Allen, et al. v. Koengismann, et al., Case No. 19-8173 (S.D.N.Y.).

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Cooper Erving & Savage obtained an important decision that will significantly protect victims of sexual assault in civil actions.  In Lisa I. v Manikas, 183 A.D.3d 1096 (3d Dept 2020), the Appellate Division, Third Department affirmed the trial court’s decision granting a protective order pursuant to CPLR 3103(a) to bar defendants’ counsel from questioning the minor plaintiff about her past sexual history.  The action involved claims of sexual assault and battery committed upon a 14-year-old girl, who was sleeping over a friend’s house.  During discovery, plaintiffs’ counsel, Carlo A. C. de Oliveira, moved for a protective order, pursuant to CPLR 3103(a), to preclude defendants from questioning the child during her deposition about her sexual history and drug use.  The trial court granted plaintiffs’ motion finding that the Rape Shield Law protections to victims of sexual assault in criminal proceedings applied equally to victims of sexual assault in civil actions. In affirming the trial court’s decision, the Appellate Division did not decide whether the Rape Shield Law applied to civil cases.  However, the Appellate Division, in essence, brought the policy considerations of the Rape Shield Law to civil actions, thereby protecting victims of a sexual assault from being questioned about their prior sexual history in civil actions.  The evidentiary significance of the Manikas decision is significant in that victims of sexual assault may seek the same protections available to sexual assault victims in criminal proceedings through the Rape Shield Law to civil action via a protective order.

On December 4, 2018, Judge Richard D. Northrup, Jr., of the New York State Supreme Court, County of Delaware, declined to grant an employer’s motion for a preliminary injunction and temporary restraining order in the case of Jonathan H.F. Davis, DVM v. Mathew R. Zeh, DVM, Index No. 2018-1073 (Sup Ct., Delaware County 2018).  Dr. Davis owns a veterinarian clinic that used to employ Dr. Zeh.  After terminating Dr. Zeh’s employment, Dr. Davis sought to prohibit Dr. Zeh, a veterinary doctor, from continuing to practice veterinary medicine in his own clinic.  Dr. Davis relied on a non-compete agreement clause in the employment agreement that prohibited employees from engaging in any business that competed with Dr. Davis’ veterinarian business for a period of 3 years.  In a decision that recognizes New York’s disfavored view of restrictive covenants, Judge Northrup, Jr., denied the employer’s injunctive relief finding that the employer failed establish likelihood of success on the merits and that the non-compete provision was enforceable. Click here for decision.

On July 4, 2018, Judge Brenda K. Sannes of the NDNY denied summary judgment in the case of Colistra v. Cairo-Durham Central School District. Against opposition from the School District, the Court ruled that Ms. Colistra, the former Director of Special Education and Curriculum and Instruction, was entitled to a trial on her claims of sex and age discrimination, concluding that there were issues of fact for a jury to decide as to whether she was belittled in her position because she was female and whether she was retaliated against because she asserted that the District operated as a “boys’ club.”

On November 6, 2018, Phil Steck won re-election as a member of the New York State Assembly. Steck received 10,000 more than his opponent out of about 49,000 votes case. Steck’s 29,000 votes are among the highest for any Member of Assembly in a competitive district. Steck, a Democrat, represents the Town of Colonie, the Town of Niskayuna, and the City of Schenectady.

Court annulled determination by Rensselaer Polytechnic Institute (RPI) that unaffiliated student violated RPI’s Student Sexual Misconduct Policy, and issued injunction preventing RPI from disseminating improper investigation materials and allegations to unaffiliated student’s academic institution.  Court ordered RPI to delete and purge John Doe’s statement and annul their determination that John Doe allegedly violated RPI’s student sexual misconduct policy.  Matter of John Doe v. Rensselaer Polytechnic Institute, and Larry Hardy as Title IX Coordinator for Rensselaer Polytechnic Institute (Rensselaer. Cnty. Sup. Ct. 2017).

https://www.thefire.org/rensselaer-polytechnic-institute-thinks-youre-subject-to-its-student-conduct-policy-even-if-youre-not-a-student/