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February 1, 2002


The opinion of the court was delivered by: Nealon, District Judge.


The plaintiff filed the instant complaint pursuant to the Federal Torts Claim Act (FTCA), 28 U.S.C. § 2671 et seq., on August 31, 1998, while incarcerated at Federal Correctional Institutions including the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg).*fn1 In his complaint, plaintiff seeks to recover damages against the defendant for failure to render timely, adequate and proper medical treatment. (Doc. 1, p. 5.) Specifically, he alleges that the negligence of the medical personnel at USP-Lewisburg led to the worsening of his heart condition that resulted in coronary bypass surgery on June 26, 1997. (Id., p. 7-8).

The parties submitted pretrial memoranda on July 19, 2001 and July 23, 2001 respectively, (Docs. 83, 86), followed by statements of proposed facts on July 19, 2001 and July 20, 2001, respectively. (Docs. 84, 87). Trial was held before the undersigned on July 24, 2001, July 25, 2001 and July 26, 2001. During the course of trial, the court heard live testimony from the following witnesses: David Podlog, Dr. Budd Heyman, and Dr. Michael Barrett. Subsequently, the parties submitted separate findings of fact and conclusions of law, as well as responses thereto. (Docs. 102, 105, 107). For the reasons which follow, the court will enter judgment for the defendant.


I. Background Facts

1. Plaintiff, David Podlog, was born on March 3, 1947.

2. Podlog is presently fifty-four (54) years old.

3. Podlog was born and resided in the Ukraine prior to emigrating to the United States in 1978.
4. From 1978 to 1991, Podlog resided in New York, Florida, California and Rhode Island.
5. In April or May of 1991, Podlog moved to New York. In April, 1992, Podlog was arrested.
6. On April 27, 1993, Podlog was convicted in the Southern District of New York of narcotics conspiracy in violation of 21 U.S.C. § 846.
7. On October 5, 1994, Podlog was sentenced to serve a prison term of twenty-seven (27) years with a five (5) year term of supervision to follow.
8. Podlog's projected release date is August 25, 2016.
9. At the time of his scheduled release from prison, Podlog will be sixty-nine (69) years old.
10. On November 21, 1994, the Immigration and Naturalization Service ("INS") lodged a detainer against Podlog.

II. History of Incarceration

A. Metropolitan Correctional Center ("MCC"), New York, New York
11. After his initial arrest in April, 1992, and brief detention in the MCC New York, Podlog was released on bail.
12. On February 11, 1993, following his conviction, Podlog was remanded to MCC New York.
13. Until his designation to USP-Lewisburg on October 27, 1994, Podlog transferred among MCC New York, the Federal Correctional Institution ("FCI") Otisville, New York and the Westchester County Jail in Valhalla, New York.
14. On April 5, 1994, while confined to the Westchester County Jail, Podlog reported to the Emergency Department of the Westchester County Medical Center in Valhalla, New York complaining of chest pain.
15. Later that same day, Podlog signed himself out of the hospital against medical advice.
16. On April 6, 1994, at approximately 1:45 a.m., Podlog was readmitted to the Westchester County Medical Center with complaints of chest pain.
17. While at Westchester, doctors prescribed Heparin, aspirin and Sorbitrol to Podlog.
18. Electrocardiograms (EKGs) taken on April 6, 1994, indicated normal sinus rhythm.
19. A myocardial infarction, or heart attack, was ruled out.

20. Podlog's cholesterol level was 264.

21. A noninvasive stress test completed on April 8, 1994, was negative, with Podlog exercising for nine (9) minutes with no, symptoms of chest pain or shortness of breath.
22. Podlog refused to take a sestimibi (radioactive material) stress test.
23. On April 9, 1994, Podlog was discharged from the Medical Center.
24. Podlog's discharge medication consisted of aspirin 325 mg to be taken every day.
25. Podlog was instructed to adhere to a low sodium, low cholesterol diet.
26. On May 18, 1994, upon Podlog's return to MCC New York from FCI-Otisville, during a routine intake screening, he reported to the Physician's Assistant ("PA") that in the prior two (2) months he had experienced shortness of breath, pain and pressure in his chest, palpitations and a pounding heart. Podlog indicated to the PA that he had been in Westchester County Hospital for chest pain.
27. The PA who conducted Podlog's intake screening noted that there were no medications prescribed for Podlog at that time.
28. On May 20, 1994, Podlog was called to the MCC New York Health Services Unit due to his prior representation during his initial screening of recent chest pain.
29. Podlog reported that six (6) weeks ago he had developed an episode of chest pain and was hospitalized at Westchester County Medical Center. Podlog stated that a stress test previously performed was negative. Podlog also reported that he was discharged on no medication and that he had been asymptomatic for chest pain ever since. The attending physician concluded that no treatment was indicated at that time.
30. On July 18, 1994, Podlog reported to the MCC New York Health Services Unit complaining that he still had discomfort in his chest. The attending physician noted that Podlog had previously tested positive for PPD (purified protein derivative).*fn2 Referencing the chronological note of May 20, 1994, the attending physician noted that Podlog had reportedly had a negative stress test and that his discomfort was thought to be musculoskeletal in nature.
31. On September 1, 1994, Podlog reported to the MCC New York Health Services Unit complaining of chest pain. He was diagnosed with indigestion.

B. United States Penitentiary-Lewisburg

Arrival at USP-Lewisburg

32. Podlog arrived at USP-Lewisburg on October 27, 1994.
33. Upon his arrival at USP-Lewisburg, Podlog completed a medical history questionnaire.
34. Podlog did not indicate that he had been treated for chest pain at Westchester County Medical Center or that he had suffered from heart trouble, shortness of breath, or chest pain.

October 31, 1994

35. On October 31, 1994, based on his positive PPD test, routine chest x-rays were ordered by Dr. Daniel Romero. Podlog was examined on November 15, 1994, and his chest x-ray was normal.

December 5, 1994

36. On December 5, 1994, Podlog reported to Health Services complaining solely of a lump in his pubic region which he had for seven (7) years.
37. Dr. Velasco examined Podlog. His examination revealed that there was a mass at Podlog's pubic region on the left side which was nonmovable and tender under palpitation.
38. Dr. Velasco ordered a general surgery consult to determine if Podlog had an inguinal hernia.

January 5, 1995

39. On January 5, 1995, Podlog reported to Health Services and saw Dr. Romero. Podlog complained of pain in his epigastric region, occasionally upon movement of his body and on walking.
40. Podlog also reported that he had light belching, but did not believe that the pain was related to any food intake.
41. Podlog reported that he had been experiencing this for eight (8) to nine (9) months.
42. Podlog stated that he had no pain when he was lying down.
43. Dr. Romero diagnosed Podlog's symptoms as possible hyperacidity.
44. Podlog was advised to stop smoking, refrain from drinking coffee and acidic juices and instructed not to use hot seasonings.
45. Dr. Romero prescribed the antacid medication Gaviscon.

October 6, 1995

46. Podlog's next visit to the Health Services Unit was on October 6, 1995. At that time, Podlog complained solely of a left eye itch and pain to PA Patrick Gsayande.
47. PA Gsayande's examination revealed that Podlog was not in acute distress.

48. Podlog's left eye area was reddish.

49. PA Gsayande ruled out conjunctivitis and allergies.
50. Podlog was prescribed sulfacetamide sodium opthalmology 10% solution to be applied to the affected area.
51. Podlog was instructed to apply one (1) to two (2) drops to the affected eye twice daily in the morning and evening.
52. In addition, the side effects were explained to Podlog and he was told to return to sick call if the condition of his left eye became worse.

November 4, 1995

53. On November 4, 1995, Podlog presented at the Health Services Unit with complaints of passing out while he was shaving in his cell.

54. Podlog complained of chest pain and fatigue.

55. Podlog did report that he smoked two and one-half (2 1/2) packs of cigarettes per day.
56. PA Gsayande examined Podlog and determined that he was in no acute distress.
57. Podlog's vital signs were: blood pressure, 129/74; pulse, 76; respiration, 16; and temperature, 97.7.

58. PA Gsayande ruled out heartburn and dizziness.

59. A twelve (12) lead EKG was completed with normal results.

60. PA Gsayande told Podlog to stop smoking.

61. On this same date, November 4, 1995, Podlog reported to Dr. Leon Biglete that he had a ...

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