Prison Doctor Takes on New York AG

ALBANY, N.Y. (CN) - A state prison doctor sued New York's attorney general, claiming the state will have a conflict of interest if its attorneys represent him along with other prison workers who have been sued for the allegedly wrongful death of an inmate. The doctor wants to hire his own attorney.

Dr. John C. McPhillips sued the state in Albany County Court. McPhillips has worked for the New York Department of Correctional Services for 23 years.

McPhillips is a defendant in a federal lawsuit in Manhattan, Clark et al. v. Fischer, et al. That complaint alleges that a nonviolent felon, Michael Fox, 28, aka Brandon M. Jackson, died due to the negligence of the state prison system and its employees.

Fox was locked up at Summit Shock Incarceration Correctional Facility, about an hour west of Albany, in rural Schoharie County.

New York operates four minimum-security "shock" prisons, where selected younger inmates are put through a military-like boot camp in exchange for early release on parole. Days are filled with calisthenics and mile-long runs, drill practice, educational classes and work assignments. New York says the program, which began in the late 1980s, is the largest shock incarceration program for state prisoners in the nation.

According to McPhillips' Article 78 complaint, the underlying wrongful death complaint says that Fox should not have been in the program to begin with; that prison guards saw him struggle and fall on a long run and did not immediately assist him; that guards used "excessive force" to move him along during the run; and that prison nurses, physicians and others "committed medical malpractice" during his time in the program.

Fox, who is described in the complaint as 5-foot-9 and 255 pounds, died on Aug. 14, 2009. He had been at Camp Summit since July 30. An autopsy concluded he died of "irreversible shock with multi-organ failure as a result of massive heat shock," according to the complaint, citing the autopsy report.

An investigation by the state Commission on Correction recommended administrative action against McPhillips "because he allegedly ignored Michael Fox's alleged statement that he felt the need for albuterol for physical exercise," the doctor says in his complaint.

McPhillips' complaint states that when Fox arrived at Camp Summit and was given a physical exam by nurses, he had a near-empty albuterol pump, which he said he needed to participate in physical activities. Since the exam showed his lungs were clear and he displayed no symptoms of asthma, the nurses believed he was abusing albuterol, according to the complaint.

Fox, who was convicted on drug charges in New York City, had a history of cocaine abuse, the complaint states. His autopsy showing an enlarged heart is consistent with cocaine abuse, and adds "albuterol is sometimes abused by addicts as a substitute for cocaine use because it has similar effects," according to the complaint.

The wrongful death lawsuit, filed in 2010, was amended in April this year and McPhillips was added as a defendant. His complaint claims that he has been made "the scapegoat for Mr. Fox's death."

After he was added as a defendant, McPhillips says, he asked the Attorney General's Office to acknowledge it had a conflict of interest in representing all of the defendants in the wrongful death case. He says he asked more than once for permission to hire his own attorney, but has not received an answer.

McPhillips says the state has an "obvious conflict of interest": "The more vigorously the attorney general argues that the correction officers were not responsible for Mr. Fox's death, the more likely it becomes a jury would find that Dr. McPhillips was responsible, and vice-versa."

McPhillips claims the state compounded its mistreatment of him by sending him a threatening letter on June 13 this year, in which "the Attorney General's Office threatened Dr. McPhillips with loss of his indemnification and defense under Public Officers Law 17 because of alleged lack of cooperation."

McPhillips says he "has cooperated with the office of the Attorney General in every respect since he was first contacted by them in November 2010, and making a request for separate counsel of his own choice is not lack of cooperation."

He says the threats to deprive him of his rights to indemnification and defense are "unwarranted, unfounded, unnecessary, frivolous, and ominous and threatening," and that the threats emphasize the defendant's conflict of interest.

He wants his own attorney, and the costs of this lawsuit.

He is represented by Lewis B. Oliver Jr.

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