Salvana v. N.Y. State Dep't of Corr. & Cmty. Supervision, 5:21-cv-00735 (BKS/ML)

• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
• Writing for the Court: BRENDA K. SANNES, UNITED STATES DISTRICT JUDGE
• Parties: MICHAEL F. SALVANA, M.D., Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, CARL KOENIGSMANN, M.D., JOHN MORLEY, M.D., DAVID S. DINELLO, M.D., PATRICIA HENDERSON, R.N., BETTY M. PARKMOND, R.N., Defendants.
• Docket Number: 5:21-cv-00735 (BKS/ML)
• Decision Date: 10 August 2022

MICHAEL F. SALVANA, M.D., Plaintiff,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, CARL KOENIGSMANN, M.D., JOHN MORLEY, M.D., DAVID S. DINELLO, M.D., PATRICIA HENDERSON, R.N., BETTY M. PARKMOND, R.N., Defendants.

No. 5:21-cv-00735 (BKS/ML)

United States District Court, N.D. New York

August 10, 2022

For Plaintiff: Carlo Alexandre C. de Oliveira

Cooper Erving & Savage LLP

Richard Condit

Desiree Langley

Mehri & Skalet, PLLC

For Defendants:

Letitia James

New York State Attorney General

Jorge A. Rodriguez

Assistant Attorney General, Of Counsel

MEMORANDUM-DECISION AND ORDER

BRENDA K. SANNES, UNITED STATES DISTRICT JUDGE

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I. INTRODUCTION

Plaintiff Michael F. Salvana, M.D., a former Clinical Physician and Facility Health Services Director with the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action against DOCCS as well as former DOCCS Deputy Commissioner and Chief Medical Officer Carl Koenigsmann,^[1] M.D.; current DOCCS Deputy Commissioner and Chief Medical Officer John Morley, M.D.; Regional Medical Director for Elmira and Oneida “HUBS” David S. Dinello, M.D.; DOCCS Deputy Superintendent for Health Services Patricia Henderson, R.N.; and DOCCS Nurse Director Betty M. Parkmond, R.N. (Dkt. No. 1, ¶¶ 8, 15-22, 31). Plaintiff raises a First Amendment retaliation claim and a Fourteenth Amendment Equal Protection claim under 42 U.S.C. § 1983, as well as claims for retaliation in violation of New York Labor Law § 741 and New York Civil Service Law § 75-b. (Dkt. No. 1, ¶¶ 158-93). Defendants move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, (Dkt. No. 22), and Plaintiff opposes the motion, (Dkt. No. 24). For the reasons set forth below, Defendants' motion to dismiss is granted in part and denied in part.

II. FACTS^[2]

A. Plaintiff's Role at DOCCS

DOCCS is the “New York State agency responsible for operating correctional facilities within” the state and is “responsible for the medical care of all inmates in its custody.” (Dkt. No.1, ¶ 8).

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DOCCS is an accredited member of the American Correctional Association and the National Commission on Correctional Health Care, both of which have “health care standards to which they adhere.” (Id. ¶¶ 9-10). DOCCS also “adheres to prison health care standards published by the American Public Health Association.” (Id. ¶ 11). However, prison hospitals in New York State “are not overseen and regulated by the New York State Department of Health,” except as to treatment of certain infectious diseases. (Id. ¶¶ 12-13). Thus, “[p]rison health care workers are accountable only to DOCCS medical administration, which effectively creates its own rules.” (Id. ¶ 14).

At DOCCS, there are five Regional Medical Directors (“RMDs”) and five Regional Superintendents for Health Services (“Superintendents”) who “oversee care in their designated areas” and report to the DOCCS Deputy Commissioner or Chief Medical Officer. (Id. ¶ 20). Each DOCCS prison also has a Facility Health Services Director (“Facility Director”), who “serves as the prison's highest medical authority.” (Id. ¶ 21). Facility Directors “report directly” to Superintendents and “indirectly” to RMDs. (Id.).

Plaintiff began working as the Facility Health Services Director-Clinical Physician III at Walsh Regional Medical Unit (“RMU”) in 2014.^[3] (Id. ¶ 31). Walsh RMU is a DOCCS medical facility within the Mohawk Correctional Facility with “approximately 152 beds for the most complicated and difficult cases . . . in the New York State correctional system.” (Id. ¶ 33). Each patient at Walsh RMU is assigned a medical team comprised of a clinician, nurses, and other appropriate staff, who make decisions regarding the patient's treatment and care, “including medication decisions.” (Id. ¶ 34). As Facility Director, Plaintiff was “responsible for

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overseeing all medical staff including doctors, nurse practitioners, nurses, physical and occupational therapists, radiology technicians, and the pharmacy supervisor,” and he “supervis[ed] the treatment of 152 patients at Walsh RMU who had extreme medical pathology, some of whose medical histories exceeded 1,000 pages.” (Id. ¶¶ 35, 100). Plaintiff and the physicians and nurses he supervised were “responsible for evaluating and performing scheduled examinations” of patients, referring patients outside for specialized treatment, and “prescribing, modifying, or declining the specialist-recommended medications.” (Id. ¶¶ 36-37). “[P]rison physicians, such as [Plaintiff]” make decisions as to the “proper medical treatment [of] inmates,” and “prescribe, modify, or decline medication based on their medical judgment and individualized assessment of the patients.” (Id. ¶ 38). Moreover, as a physician, Plaintiff was “[g]uided by his Hippocratic Oath ‘to do good or to do no harm,'” and had an “ethical responsibility not to discriminate against patients on the basis of personal or social characteristics relevant to their care, which includes incarceration status.” (Id. ¶¶ 26-27).

B. The MWAP Policy

DOCCS physicians may prescribe medications listed in the DOCCS “Formulary Book” without approval from an RMD. (Id. ¶¶ 39-40, 42). To prescribe a medication not listed in the Formulary Book, physicians must submit a Non-Formulary Request to an RMD for approval. (Id. ¶ 40).

Defendant Dinello, as an RMD and Chairman of the DOCCS Pharmacy and Therapeutic Committee, was “empowered to institute policies and procedures and oversaw primary care guidelines for the medical providers of almost 50,000 patients.” (Id. ¶ 64).^[4] Defendant

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Koenigsmann, who was then the DOCCS Deputy Commissioner and Chief Medical Officer, authorized Dinello to draft a new policy on Medications With Abuse Potential (“MWAPs”). (Id. ¶ 65). Dinello wrote a rough form of the policy in 2015, which Koenigsmann promulgated on June 2, 2017. (Id. ¶ 66). Koenigsmann then signed a revised version of the MWAP Policy on September 10, 2018. (Id. ¶ 67).

The MWAP policy placed certain medications-including medications that were previously listed in the Formulary Book-on the “MWAP list.” (Id. ¶¶ 43, 45). This list included medications such as Ultram, Percocet, Oxycodone, Neurontin, Lyrica, and Baclofen, Flexeril, and Loperamide (commonly known as Imodium), the use of which may “engender some risk,” but which DOCCS physicians had prescribed as appropriate despite awareness of the risk for decades. (Id. ¶¶ 46-53). If an RMD or prison physician is concerned about “diversion or misuse” of these medications, the clinician may have the patient monitored or request blood testing. (Id. ¶ 54). Plaintiff alleges that “all medications prescribed to patients in DOCCS' custody are administered by medical professionals and, thus, unlikely to be abused [and] are the only effective medication available for certain health conditions.” (Id. ¶ 55).

Nonetheless, under the MWAP policy, providers had to “submit a one-page MWAP request form” to the RMD in charge of their “hub” to “get approval” to prescribe a medication on the MWAP list. (Id. ¶¶ 68-69). The Request Form asked for the patient's relevant health information, the “justification” for the use of the medication, a list of “alternatives” tried to treat the medical issue, and whether there was “any recent evidence of drug diversion or abuse by the patient.” (Id. ¶¶ 70-71). When processing MWAP Request Forms, the RMDs only had access to “limited portions” of the patient's medical history from the Facility Health Services Database; from this Database, RMDs could not look up the patient's “daily treatment records” which were

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“held with their primary provider,” or their paper Ambulatory Health Record, which was kept at the facility where the patient was held. (Id. ¶¶ 72-74). The RMD then determined whether the patient received the MWAP medication; clinicians had “no ability to provide the medication once an RMD [had refused] to approve the prescription,” and pharmacies would not fill MWAP prescriptions without RMD approval. (Id. ¶¶ 75-77).

Plaintiff alleges that Koenigsmann has testified elsewhere that the RMDs felt strongly that the MWAP policy needed to be a “policy” as opposed to a “practice guideline” because “[a] policy requires adherence.” (Id. ¶ 78). In an internal DOCCS email, Koenigsmann wrote to Dinello that they needed to be “extremely careful about indicating that anyone [was] having their medication discontinued because of a new policy,” as changing medications based on a policy would be “doomed to [legal] failure.” (Id. ¶¶ 80-81). He also noted that he held reservations about creating a guideline versus a policy because “it's difficult with licensed clinicians to dictate how they provide care,” but under the MWAP policy, “we do require that they have to prove certain things before they're able to prescribe these medications, and that's different from out in the free world” where there are “no similar limitations on providers.” (Id. ¶ 81). He added that the MWAP policy was “never designed to eliminate any specific” medication or class of medications, but only to “ensure that we have proper oversight over the clinicians ordering the medications.” (Id. ¶ 82).

However, the MWAP policy “had the immediate impact of abruptly discontinuing the effective treatment of hundreds of inmates that need[ed] MWAPs, including patients who suffer[ed] from epileptic seizures, Multiple Sclerosis, cancer, sickle-cell anemia crisis, phantom pain, major spinal injuries, and other sources of chronic pain.” (Id. ¶ 83). Plaintiff alleges that medical records show “consistent patterns of medical providers fighting the RMDs when their

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patients [were] denied recommended and effective MWAP medications.” (Id. ¶ 84). On December 26, 2017, Dinello gave an “informal warning” to clinicians that a “formal warning” would be issued...