Doctor sues AG, citing conflict

PHOTOGRAPHER: Marlene Kennedy

A longtime state prison doctor has sued Attorney General Eric T. Schneiderman, charging a conflict of interest exists if the state represents him along with other corrections workers in a wrongful-death lawsuit. He wants to be able to hire his own attorney.

The doctor, John C. McPhillips of Greenfield Center, who has worked for the state Department of Corrections and Community Supervision for 23 years, brought his Article 78 complaint in state Supreme Court in Albany County. He wants the court to declare that he is entitled to private counsel, rather than having to rely on the Attorney General’s Office to represent him, as it does for all state employees sued in the course of their work.

McPhillips is a defendant in a case pending in U.S. District Court for the Southern District that alleges a convicted nonviolent felon, Michael Fox, 28, also known as Brandon M. Jackson, died as a result of negligence by various corrections department employees involved in the Summit Shock Incarceration Correctional Facility near Cobleskill.

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 exercise, drill practice, educational classes and work assignments. New York says the program, which began in the late 1980s, is the largest shock incarceration program in the nation for sentenced state prisoners.

According to McPhillips’ Article 78 complaint, the wrongful-death suit alleges Fox should not have been in the program to begin with. It also alleges 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, described in the complaint as 5-foot-9 and 255 pounds, died on Aug. 14, 2009.

He had been at Camp Summit, as it is known, for about two weeks. An autopsy concluded he died of “irreversible shock with multi-organ failure as a result of massive heat shock.”

A subsequent investigation into his death by the state Commission on Correction recommended administrative action against McPhillips, the Article 78 complaint states, “because he allegedly ignored Michael Fox’s alleged statement that he felt the need for albuterol for physical exercise.”

The complaint says that when Fox first 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.

An autopsy showing an enlarged heart is consistent with cocaine abuse, it says, and adds that “albuterol is sometimes abused by addicts as a substitute for cocaine use because it has similar effects.”

The wrongful-death lawsuit, filed originally in 2010, was amended in April this year and at that time McPhillips was named as a defendant. His Article 78 complaint states that he has been made “the scapegoat for Mr. Fox’s death.”

McPhillips examined Fox on Aug. 5 at the Hale Creek Correctional Facility near Johnstown, where he worked, according to the complaint.

A spokeswoman for the Attorney General’s Office said the agency did not keep statistics on requests for private counsel.

McPhillips, soon after being added as a defendant in the wrongful-death suit, asked the Attorney General’s Office to determine that there was a conflict of interest in its representing all of the defendants in that case.

He asked then and subsequently for permission to hire his own attorney, but has not received an answer, according to the Article 78 complaint.

There is an “obvious conflict of interest” in the state representing all of the defendants in the case, the complaint states. “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.”