The filing also claims staff leaned on detainees to sign “medical refusal forms” or caused detainees to miss appointments because of lockdowns or searches that were later falsely recorded as “refusals.”
“We have strong evidence that numbers are being falsified,” said Alyssa Briody, a senior attorney with Brooklyn Defenders which filed the motion with the Legal Aid Society and Milbank LLP.
“Someone with DOC will ask them to sign a refusal form when there is no escort or the officer doesn’t want to take them. There is an inherent power imbalance. They don’t want to upset a correction officer,” Briody said.
The motion filed Thursday in Agnew v. Department of Correction asks a Bronx judge to hold the city in contempt for failing to provide medical treatment to detainees and fine the city $250 per day per missed visit — which could total in the hundreds of thousands of dollars.
The filing argues the city’s failure has caused people held in the jails to miss thousands of appointments from June 2022 to the present. Medical care in the jails is overseen by Correctional Health Services and the Correction Department.
Statistics cited in the lawsuit claim even after the city was previously held in contempt, detainees, for example, weren’t brought to visits 11,696 times in April 2024 compared to 7,671 times in October 2021.
As a result of missed visits, “ripple effects abound: delays and denials beget more infections, more maladies, and more pain, resulting in chronic illness, permanent disability, and, in some cases, death,” the legal papers allege.
“Those overall numbers have increased at such a high rate,” said Veronica Vela, a supervising attorney with Legal Aid. “Now we’re looking at refusal numbers that are larger than the total non-production numbers were when we filed the case in 2021.”
The motion is built around the affidavits of 34 people held in the jails during the period, who allege in part that Correction staff tried to pressure them into signing refusal of medical treatment forms even though they didn’t actually refuse treatment.
Even when nursing staff “escalate” a request — ask a DOC supervisor to produce the detainee — the request is ignored or delayed, the motion alleges.
The city has maintained the vast majority of missed medical appointments took place because detainees “refused” to go. But so-called “refusals” rose in August 2023 to 9,419, far higher than the 6,792 recorded in January 2022. Over the past 12 months, the number of refusals has averaged 7,555 a month, the lawsuit states.
In one affidavit after another, the detainees say records which claim they “refused” to go to a medical visit are in fact wrong.
One detainee, Kevin Gamble, 62, was recorded as “refusing” 44 medical visits over seven months. He was shocked when he saw his medical records that showed the missed visits.
“DOC had apparently told CHS that I refused 44 of these appointments. I did not refuse any of those appointments,” he wrote. “I assume that DOC officers marked me down as refusing services so that they would not be blamed for failing to bring me to my appointments.”
In all, Gamble missed 212 visits within 195 days from Jan. 1, 2023 to July 15, 2023. “That is more than one missed appointment per day,” he wrote.
Theodore Gallo, 47, wrote he noticed rib pain and a lump in 2022. He was slated to see a doctor at Bellevue to examine it but it took DOC 71 days to arrange transport to the hospital.
On the day of the appointment, Sept. 13, 2022, a jail guard told him the visit had been “rescheduled” and ordered him to sign a form that read “refusal of treatment,” he alleges.
“I told the officer I would not sign it because I had not refused the appointment,” Gallo wrote.
The next day, he wrote, a doctor told him if he didn’t sign the refusal form, he wouldn’t get a new appointment. Eight days later, he hadn’t signed the form and was still waiting for a rescheduled visit.
Larry Anderson, a diabetic with a hernia and mental health issues, wrote he had long suspected DOC was not taking him to his appointments, but was still shocked when he saw records showing he had missed 97 of them between August 2022 and November 2023.
On Nov. 2, 2023, for example, DOC wrote Anderson “refused” to go to a visit.
“That is preposterous,” he wrote. “I need medical treatment. I did not refuse. DOC simply made it up.”
Anderson wasn’t taken to so many appointments, CHS stopped scheduling them — a practice known as “sick call closeout” which is done after a detainee misses three or more visits, the motion states.
Anderson hurt his ankle in October 2022. DOC didn’t take him so CHS rescheduled him four times then closed out the complaint, Anderson alleges.
After another missed visit for Anderson on Sept. 18, 2023, a CHS clinician wrote DOC did not give a reason. “I have told DOC that delays to care could result in poor health outcomes,” the clinician wrote.
“I hope to be sentenced soon so I can get out of these jails and into some place that will allow me access to medical care,” Anderson wrote on Nov, 20 2023.
Matthew Claire wrote in his affidavit he was slated to visit Bellevue for treatment of a collarbone injury but he was told there was no driver. Then a correction officer insisted he sign a “refusal” form. Claire declined.
“He knew that I did not refuse and that the only reason I was not being taken to Bellevue was because DOC did not make a driver available to take me there,” Claire said. “I did not sign the refusal form. I did not refuse medical treatment.”
Keith Ellis was recorded as missing 34 visits in the 135 days between Jan. 25, 2023 and June 8, 2023.
“I would never refuse an appointment with my CHS mental health professionals, and I have never done so,” Ellis wrote. When reviewing my records, I was surprised to see that DOC had so often failed to take me to medical appointments. I did not know that CHS had scheduled so many appointments for me.”
Vela, the Legal Aid attorney, said that “They are spending more money to litigate than it would to fix it. I think it’s just a culture of apathy toward the humanity of our clients.”
The DOC did not immediately return a request for comment.
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