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.
1. Plaintiff, David Podlog, was born on March 3,
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
8. Podlog's projected release date is August 25,
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
II. History of Incarceration
A. Metropolitan Correctional Center ("MCC"), New York, New
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
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
32. Podlog arrived at USP-Lewisburg on October 27,
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.
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.
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.
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
43. Dr. Romero diagnosed Podlog's symptoms as
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
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
50. Podlog was prescribed sulfacetamide sodium
opthalmology 10% solution to be applied to the
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.
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
58. PA Gsayande ruled out heartburn and dizziness.
59. A twelve (12) lead EKG was completed with
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 ...