Harding v. Canfield
| Citation | 610 F.Supp.3d 495 |
| Decision Date | 07 July 2022 |
| Docket Number | 6:17-CV-6024 EAW |
| Parties | Eric HARDING, Plaintiff, v. Kaye CANFIELD, as Administrator of the Estate of Wesley Canfield, et al., Defendants. |
| Court | U.S. District Court — Western District of New York |
Eric Harding, Brooklyn, NY, Pro Se.
Heather Lynn McKay, New York State Attorney General's Office Department of Law, Rochester, NY, for Defendants Kaye Canfield, Benjamin Oakes, C. Jeavons, Carl J. Koenigsman.
DECISION AND ORDER
Proceeding pro se , plaintiff Eric Harding ("Plaintiff") alleges that Defendants Kaye Canfield as Administrator of the Estate of Wesley Canfield ("Dr. Canfield"), Benjamin Oakes ("PA Oakes"), C. Jeavons ("NP Jeavons"), and Carl J. Koenigsmann ("Dr. Koenigsmann") (collectively "Defendants") violated his rights under the Eighth Amendment by failing to provide him adequate medical care and treatment for hepatitis C
while he was in the custody of New York Department of Corrections and Community Supervision ("DOCCS"). (Dkt. 8). Presently before the Court is Defendants’ motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. 81). Plaintiff has neither responded to the present motion nor requested an extension of time to file a response. For the following reasons, Defendants’ motion is granted.
This district's Local Rules of Civil Procedure require that a party moving for summary judgment file a Statement of Undisputed Facts accompanied by citations to admissible evidence or to evidence that can be presented in admissible form at trial. See L. R. Civ. P. 56(a)(1). Local Rule 56 also requires a party opposing summary judgment to file a statement admitting or contesting the moving party's Statement of Undisputed Facts and provides that an opposing party's failure to do so may render the moving party's Statement of Undisputed Facts admitted. L. R. Civ. P. 56(a)(2).
Here, Plaintiff has failed to respond to Defendants’ motion. As a result, the facts set forth below are taken from Defendants’ Statement of Undisputed Facts and the exhibits submitted in support of Defendants’ motion for summary judgment. In other words, because Plaintiff failed to submit an opposing statement of material facts, to the extent supported by admissible evidence, the factual statements contained in Defendants’ Statement of Undisputed Facts are deemed admitted for purposes of the motion. See L. R. Civ. P. 56(a)(2); see also N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc. , 426 F.3d 640, 648-49 (2d Cir. 2005) ().
Plaintiff's claims relate to the medical treatment of his hepatitis C
while incarcerated. (See Dkt. 8). Hepatitis C disease, caused by the hepatitis C virus ("HCV"), primarily affects the liver. (Dkt. 81-2 at ¶ 3). Hepatitis C infections progress slowly such that a patient is unlikely to experience severe illness in less than 20 years. (Id. at ¶ 8).
Tests can indicate the extent of a patient's liver involvement, or liver fibrosis
level. (Id. at ¶ 7). Generally, a score of F0 and F1 is reliable in excluding significant liver disease, while F4 indicates cirrhosis. (Id. ). F2 and F3 indicate the presence, but not necessarily the extent, of liver fibrosis. (Id. ).
can be treated, and a patient is considered cured when a non-detectable viral load of the disease is measured twelve weeks after the end of treatment. (Id. at ¶ 9). Treatment of HCV has changed over the years. (Id. at ¶ 10).
Between 2001 and 2011, the standard drug therapy for HCV was two drugs: pegylated interferon and ribavirin
, referred to as "Dual Therapy." (Id. at ¶ 11). In May 2011, two new drugs were approved for treatment, telaprevir and boceprevir, either of which can be combined with Dual Therapy to form a drug regime known as "Triple Therapy." (Id. at ¶ 16). Triple Therapy has a higher success rate, but the chances of success can depend on the severity of illness and prior responses to therapy. (Id. at ¶ 17 ()).
The drugs used in both Dual and Triple Therapy pose significant side effects and health risks. For example, they can fatally worsen a patient's liver disease, or cause anemia
, thyroid dysfunction, or psychiatric decompensation. (Id. at ¶¶ 12, 13, 18). Given these risks, patients need to be carefully selected for treatment, which includes a psychiatric review. (Id. at ¶ 14).
Additionally, telaprevir and boceprevir, used in Triple Therapy, increase the likelihood that a patient will develop a drug resistant form of hepatitis C
. (Id. at ¶ 19). Consequently, early termination of treatment is necessary if an individual's viral load is not below 1,000 after four weeks of Triple Therapy. (Id. ; Dkt. 81-6 at ¶ 46). A higher viral load indicates the patient is not going to achieve a cure, in which case continuing Triple Therapy is not considered worth the risk. (Dkt. 81-2 at ¶ 22). This is known as the "futility rule." (Id. ).
Over time, newer drugs were developed that pose fewer risks and a higher success rate. (Id. at ¶ 29). Prior to FDA approval of these drugs, the American Association for the Study of Liver Diseases (the "AASLD") advised delaying treatment for patients with early-stage fibrosis (F0-F2) since the pace of medication developments was expected to increase rapidly. (Id. ). In late 2014, the FDA approved two such drugs: Harvoni and Viekira Pak. (Id. at ¶ 24).
In the summer of 2011, DOCCS created practice guidelines for the treatment of hepatitis C
("DOCCS Guidelines"), overseen by Defendants’ expert, Paula Bozer, M.D. (Id. at ¶ 28). Dr. Bozer, a regional medical director at DOCCS, works with specialists and other health professionals in developing these guidelines and periodically updating them. (Id. ). The guidelines are based on community standards, including the guidelines drafted by the AASLD. (Dkt. 81-6 at ¶ 35).
The process for approval of drug therapy requires: (1) facility staff to conduct appropriate blood work, radiologic studies, and a mental health evaluation; (2) the patient to consult with an outside expert specialist,1 such as an infectious disease specialist, who determines eligibility and recommends a treatment plan; and (3) facility staff to prepare and send a treatment request to the Deputy Commissioner/Chief Medical Officer who reviews the request. (Dkt. 81-2 at ¶ 31).
Plaintiff was diagnosed with hepatitis C
in 2000. (Id. at ¶ 32). In 2004, Plaintiff was treated with Dual Therapy in the Bronx but stopped treatment either due to treatment failure or side effects. (Id. ). In 2008, he was again treated with Dual Therapy while at Rikers Island, but treatment stopped because he developed anemia. (Id. ). Treatment restarted but stopped again soon after. (Id. ). In 2010, Plaintiff underwent a liver biopsy, which indicated an F1 score. (Id. at ¶ 34).
Plaintiff was incarcerated at Southport Correctional Facility ("Southport") from May 17, 2011, to September 2014 with the exception of a temporary transfer to Great Meadows Correctional Facility from June to August 2012. (Id. at ¶¶ 36, 38). At Southport, Plaintiff was seen by Dr. Canfield and PA Oakes. Plaintiff alleges that on November 17, 2011, he wrote Dr. Canfield a letter concerning his failing health and need for treatment (see Dkt. 8-1 at 2-3), and that Dr. Canfield "responded in his normal negative demeanor" (id. at 4; see also Dkt. 8-1 at 6 ( )).
Around May 2012, Dr. Canfield referred Plaintiff to an outside infectious disease specialist ("IFD"). (Dkt. 81-2 at ¶ 37; Dkt. 81-4 at 8). Plaintiff saw IFD Dr. Miller on July 11, 2012, at which point Plaintiff had been transferred to Great Meadows. (Dkt. 81-2 at ¶¶ 38-39). Dr. Miller described the likelihood of Plaintiff responding to Dual Therapy as less than 5% and thus did not advise retreating Plaintiff based on the drugs’ toxicity
recommended future treatment with newer drugs telaprevir and boceprevir if Plaintiff developed fibrosis stage F2 or worse. (Id. ).
In February 2013, PA Oakes referred Plaintiff to another IFD. (Id. at ¶ 40; Dkt. 81-4 at 9). On April 22, 2013, Plaintiff saw IFD Dr. Endy who estimated a response to Triple Therapy as 30-35%, and while noting that new drugs would become available the following year, found it worthwhile to attempt Triple Therapy. (Dkt. 81-4 at 9). PA Oakes ordered a fibrosis test, collected on May 9, 2013, which showed a score of F2. (Dkt. 81-2 at ¶ 43). Plaintiff received mental health clearance on June 14, 2013. (Id. at ¶ 44). PA Oakes saw Plaintiff over a month later, on July 30, 2013, and submitted a treatment request that day. (Id. at ¶ 45). Dr. Koenigsmann, DOCCS's chief medical officer, approved the request. (Id. at ¶ 46).
Beginning August 9, 2013, Plaintiff was treated with Triple Therapy. (Id. at ¶ 47). He was prescribed to take all three drugs for 12 weeks, followed by an additional period of only pegylated interferon and ribavirin
. (Id. ). On September 4, 2013, Plaintiff's viral load was over 97,000, and by October 2, 2013, it had gone up to over 150,000. (Id. at ¶ 49). In late October 2013, PA Oakes consulted with regional medical director, Dr. Trabout, who confirmed that the drug therapy had to be discontinued per DOCCS Guidelines. (Id. at ¶¶ 50-51). According to PA Oakes, Plaintiff had completed all required doses of telaprevir as of that time, but the two other medications were discontinued. (Id. at ¶ 50).
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