Milburn v. Dogin et al

Filing 667

ORDER with respect to 665 Letter Motion for Discovery. Defendants shall file any opposition to this request no later than September 10, 2021. Class counsel may reply no later than September 14, 2021. SO ORDERED. (Signed by Judge Loretta A. Preska on 9/7/2021) (tg)

Case 1:79-cv-05077-LAP Document 667 Filed 09/07/21 Page 1 of 3

LAW OFFICE OF AMY JANE AGNEW
Honorable Loretta A. Preska
Senior Justice, United States District Court
Southern District of New York
500 Pearl Street
New York, New York 10007
September 4, 2021
VIA ECF
Re:

Milburn v. Dogin, et al., 79-cv-5077
So Ordered Subpoena

Dear Judge Preska:
Class Counsel writes to respectfully request a So Ordered Subpoena to produce documents
directed to the New York State Commission on Correction Medical Review Board. Through FOIL
requests, this office received a number of Final Reports regarding the deaths of patients in the care
and custody of Green Haven Correctional Facility (“Green Haven”) between 2015 and present.
(Exhibit 1.) As the Court can see, the reports are heavily redacted. The Commission FOIL officer
has indicated the reasons for the redactions pursuant to state law in her response letter. (Exhibit 2.)
Class counsel seeks not only unredacted versions of the reports but also some of the underlying
information gathered to craft the reports, including the statements made by medical staff at Green
Haven when interviewed by the Medical Review Board members. Class Counsel has also
requested records related to the recent deaths of four (4) patients for whom Death Reports have
not yet been issued.
These reports and the underlying materials offer critical information related to the standard
of care and deficiencies in Green Haven’s medical delivery system since the Consent Order was
terminated in 2015 – the issues at the very heart of this case. Sadly, even the unredacted portions
of the reports mimic the very concerns voiced by members of the Class over the past two years to
Class Counsel and repeatedly seen in the medical records of Class Members. For instance, even
in these limited and highly redacted reports, it is clear: “there was an unacceptable delay in
scheduling a physician appointment” (Exhibit 1 at MRB FOIL 4), “there was an unacceptable
delay in obtaining an electrocardiogram” (Ibid), “there was a delay in Brown’s diagnostic testing”
(Id. at MRB FOIL11), “persistent pattern of missed or delayed diagnostic testing” (Ibid), “there
was inadequate follow-up by the medical provider” (Id. at MRB FOIL 12), “delay in scheduling
pacemaker battery replacement” (Ibid), “inadequate nursing assessment” (Ibid), “RN failed to
complete a problem oriented assessment” (Id. at MRB FOIL 13), “had Brown been evaluated by
a physician, properly diagnosed, and referred to a hospital for treatment in a timely manner his
immediate death would have been prevented” (Id. at MRB FOIL 14), “repeated failure by OMH
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Case 1:79-cv-05077-LAP Document 667 Filed 09/07/21 Page 2 of 3

clinical staff to properly update the CRSA when indicated necessary due to sentinel events” (Id. at
MRB FOIL 21), “significant delays in Cotsifas’ medical treatment” (Id. at MRB FOIL 22),
“monitoring document … prior to EMS’s arrival was not indicative of proper monitoring of an
unstable patient in medical crisis” (Ibid), “had Cotsifas received proper medical intervention and
monitoring, his death may have been preventable” (Id. at MRB FOIL 24), “death had exceeded
more than two hours when he was discovered” (Id. at MRB FOIL 40), “constellation of these
failures allowed for the continued deterioration of Griffin’s neurological status for seven days that
went undiagnosed and untreated and resulted in his death which otherwise may have been
prevented” (Id. at MRB FOIL 44), “medical provider failed to order an assessment” (Id. at MRB
FOIL 46), “24 hour delay of medication for hypertension in a facility with an onsite pharmacy is
unacceptable” (Id. at MRB FOIL 48), “continued failure of the medical staff to recognize and take
appropriate action for a neurological emergency” (Id. at MRB FOIL 49), “numerous failures of
the medical staff to provide adequate care, treatment, and follow up … prior to his terminal event”
(Id. at MRB FOIL 54), “six-week delay in obtaining basic diagnostic studies such as an EKG is
excessive and does not comport with acceptable community standards” (Id. at MRB FOIL 55),
“three-month delay in completing a provider follow up with an abnormal CAT scan was not
acceptable” (Id. at MRB FOIL 57), “had developed significant lung disease that went undiagnosed
and [un]managed prior to his death” (Id. at MRB FOIL 63), “the medical care provided to Lashen
was deficient and substandard” (Id. at MRB FOIL 70), “had Lashen been evaluated at a hospital
in a timely manner, his terminal condition could have been diagnosed and surgically corrected”
(Id. at MRB FOIL 74), “raises the possibility that falsification of the patient medical chart
occurred” (Id. at MRB FOIL 75), “extensive history of hypertension which was inadequately
monitored and treated by medical staff at Green Haven” (Id. at MRB FOIL 78), “gross departure
from standards of care to properly assess and manage a patient” (Id. at MRB FOIL 79), “lack of
adequate hypertension management plan and intervention … was contributory to his continued
development of cardiovascular disease and ultimately his death” (Id. at MRB FOIL 83), “25minute delay in EMS activation for a patient in cardiac arrest was not acceptable” (Id. at MRB
FOIL 92), “Medical Review Board has identified these issues in repeated matters they have
examined” (Id. at MRB FOIL 109), “lack of ordered follow-up or monitoring of a patient” (Id. at
MRB FOIL 114), and “an ECG should have been completed on an inmate with unresolved
complaints of chest pain” (Id. at MRB FOIL 127).
Class counsel seeks the so ordered subpoena to 1) guarantee the responsiveness of the
Commission of Correction; 2) streamline any objections or motions to quash or modify the
subpoena; and 3) ensure that any motions related thereto will be transferred or heard before this
Court and not in the Northern District of New York.1 Class counsel has faith that the subpoenas
1

Class counsel in this office enjoys a robust practice in the courts of the NDNY but notes that in
at least one instance a hearing on a motion to quash a subpoena issued from this office to an

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24 Fifth Avenue, Suite 1701
New York, NY 10011

[phone]

[e-mail]

New Jersey Office
36 Page Hill Road
Far Hills, NJ 07931

Case 1:79-cv-05077-LAP Document 667 Filed 09/07/21 Page 3 of 3

are proper and aim to secure relevant and critical information that cannot be had through another
source. See Wyatt v. Kozlowski, 19-cv-159W(LGF) 2019 U.S. Dist. LEXIS 133785 (S.D.N.Y.
Aug. 8, 2019). I have attached a proposed subpoena and can make any amendments as the Court
deems necessary. (Exhibit 3.)
With our thanks for the Court’s continuing courtesies.
Very truly yours,
/s/ AJ Agnew
Amy Jane Agnew, Esq.

Defendants shall file any opposition to this
request no later than September 10, 2021.
Class counsel may reply no later than
September 14, 2021.
SO ORDERED.
Dated:

September 7, 2021
New York New York

________________________________
_
__________________________________
A PRESKA U S D J
LORETTA A. PRESKA, U.S.D.J.

cc:

Counsel of Record (VIA ECF)

agency located in the NDNY was not calendared in the NDNY until after the trial in the
underlying SDNY matter had occurred. In this case, time is of the essence.
New York Office
24 Fifth Avenue, Suite 1701
New York, NY 10011

[phone]

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Far Hills, NJ 07931