by Ed Lyon

Two suits playing out in federal court in New York in mid-2022 will determine whether the state Department of Corrections and Community Supervision (DOCCS) is held to account for a policy that denied pain-relieving medication to state prisoners for years.

Back in March 2016, as the opioid addiction crisis spread across the U.S., the federal Centers for Disease Control revised prescribing guidelines for opioid pain relievers, telling physicians to exhaust all other avenues for pain relief before prescribing them and even then to keep dosages as low as possible.

DOCCS then published guidelines in 2017 governing what it termed Medications with Abuse Potential (MWAP), requiring prescriptions to be endorsed by a Regional Medical Director.

Supposedly written to limit the use of opioids, the list of MWAP drugs also included the allergy medicine Claritin, the seizure-relief medicine Gabapentin, as well as Imodium—medications that are not opioids by any stretch of the imagination.

The author of the guidelines, Dr. David Dinello, was himself a Regional Medical Director hired by DOCCS in 2009. At the time, the state medical board was investigating allegations that he provided inadequate care to several patients in the Emergency Room at Auburn Memorial Hospital over the preceding two years, for which Dinello was ultimately barred from working in emergency medicine in 2010 and placed on probation for three years.

But this didn’t affect his employment with DOCCS, nor keep him from authoring the new MWAP policy. Prison doctors, instructed to wean their patients off medications on the lengthy list, soon found their requests routinely denied for historically successfully treatments for chronic pain—the kind experienced by severely ill patients without addiction problems who suffer end-stage cancers, multiple sclerosis, sickle cell anemia, Parkinson’s disease or severe spinal injuries.

Dr. Michael Salvana was a care provider at DOCCS’s Walsh Regional Medical Unit. After Dinello’s MWAP policy was implemented, Salvana said he would enter rooms and “find these guys, grown men, in the fetal position rocking with pain.”

But he wasn’t allowed to treat them effectively, he added, because his requests for MWAP were denied. None of the denying supervisors ever examined one of his suffering patients, though.

“You can’t give them their medication because someone 50 to 100 miles away who hasn’t seen them won’t sign a piece of paper,” a frustrated Salvana noted.

At headquarters in Albany, DOCCS was flooded with complaints about Dinello’s MWAP policy, coming not only from suffering prisoners but also from health care providers. Yet Dinello remained firm in denying desperately needed pain medications to the point that Salvana had to have a sickle-cell patient airlifted to a hospital for treatment because he was so wracked with agony.

In 2015, attorney Amy Jane Agnew stepped in to represent a blind prisoner denied medication under MWAP to treat his chronic pain. In 2019, that case won Anthony Medina a resumption of his treatment with Tramadol and an award of nearly $600,000 from the federal court for the Southern District of New York. [See: PLN, Apr. 2020, p.61.] Agnew characterized what DOCCS was doing as torture.

“We get to punish people, but living in prison is the punishment,” she said.    “Being in chronic pain is not the punishment. We do not get to torture them. It’s that simple.”

Agnew filed another civil rights suit in September 2019 seeking class-action status on behalf of a group of chronically ill state prisoners denied pain medication under MWAP. One of the named plaintiffs, Aaron Dockerty, a 35-year-old with multiple sclerosis held at Shawangunk Correctional Facility in Wallkill, described what happened to him when the policy went into effect and he was taken off Neurontin: He quickly went from playing basketball to living in a wheelchair.

“You’ve just mandated that a man spend his life in a wheelchair because you won’t give him a 50-cent drug,” an exasperated Agnew said.

Whistleblower Suit Filed

Meanwhile Salvana grew despondent watching his patients suffer. Some other caregivers abandoned DOCCS, while those that remained began to ostracize him for complaining about MWAP. He eventually quit on April 28, 2020, after he was “locked out of the [Walsh] facility, blocked from making orders, [and] had my orders rescinded by non-doctors who had no license to practice medicine,” he said.

On February 8, 2021, the MWAP policy was largely rescinded by DOCCS Deputy Commissioner and Chief Medical Officer John Morley. Dinello by then had left the agency. He and Morely were named as defendants in a whistleblower lawsuit Salvana filed on June 28, 2021, alleging he was subjected to retaliation and constructively fired for his objections to the MWAP policy. Also named as a defendant is Carl Koenigsmann, Morley’s predecessor who signed off on the now-abandoned policy.

The case remains pending in federal court for the Northern District of New York, where Salvana is represented by Carlo Alexandre C. de Oliveira of Cooper, Erving & Savage, LLP in Albany and two attorneys from Mehri & Skalet, PLLC in Washington, D.C., Desiree Langley (Sholes) and Richard Condit. See: Salvana v. N.Y. State Dep’t of Corr.and Cmty. Supervision, USDC (N.D.N.Y.), Case No. 5:21-cv-00735.

Agnew’s most recent suit has been proceeding in federal court for the Southern District of New York, aided by co-counsel from her eponymous firm, Joshua L. Morrison and Kara Somerstein. Defendants, both those represented by the state and those not, moved to dismiss the case. But the Court denied those motions on May 19, 2022.

Pointing specifically to Dockerty’s case, the Court concluded that “Plaintiffs have adequately pleaded that they were actually deprived of adequate medical care” in violation of their Eighth Amendment guarantee to freedom from cruel and unusual punishment, as provided by Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006). Moreover, referring to a quote from the same case found in Horace v. Gibbs, 802 F. App’x 11 (2d Cir. 2020), the Court said that Plaintiffs also adequately pleaded Defendants were “aware of a substantial risk that serious inmate harm will result” from that deprivation. See: Allen v. Koenigsmann, 2022 U.S. Dist. LEXIS 90413 (S.D.N.Y.).

Crucially, Defendants all pointed to the MWAP policy and essentially shrugged, “What else could we do?” The Court wasn’t buying that argument, at least not at this early stage of the case. Couldn’t the defendant medical providers see their patients were suffering as a result of decisions made under the MWAP policy? Unlike Salvana, most didn’t even ask for any medications on the list, much less complain, and the Court wondered: Why not?

It was a refreshing injection of humanity into an argument couched in bureaucratic technicalities. Of course, it remains to be seen whether Agnew can convince the court that damages are due her clients for the years of agony they suffered. See: Allen v. N.Y. State Dep’t of Corr.and Cmty. Supervision, USDC (S.D.N.Y.), Case No. 1:19-cv-08173.

Though pain-relieving medications have begun to trickle to needy prisoners under the revised policy, Agnew insists that “DOCCS has not adopted any programs to fix this systemically.”

“They’re just playing whack-a-mole [with] the litigation,” she observes. “What that means is that I’m driving health care. That’s not right. That’s crazy.” 

Additional sources: Daily Beast, Syracuse Post-Standard

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