Wednesday June 19, 2013
A Veteran Denied: The Gary Harvey CaseSalem-News.com
"My husband a veteran who served his country and fought for our freedom is being denied his." - Sara Harvey
(HORSEHEADS, NY) - (Editor's note: Also see I'm Sick of the Gary & Sara Harvey Case - Time to Move On - Carrie K. Hutchens Special to Salem-News.com)
The following is information is a lengthy legal document that reveals the frustrating story of an American who has been denied the opportunity to live a healthy life due to decisions that he had nothing to do with.
We have written about Gary Harvey in the past and the efforts of his brave wife Sara and team of supporters trying to bring him justice.
For more information please see:
For background on the case, read these articles:
TABLE OF CONTENTS
Personal Information Accident Information Care and Treatment Guardianship Proceedings Other Court Actions Conclusion
The following synopsis of the Gary Harvey case is co-written and compiled by Gary’s wife Sara Harvey in association with Tim Lahrman who is a long standing guardianship advocate, researcher and paralegal.
The synopsis is not intended to be all inclusive of every issue, fact or nuance of the matter in its entirety, but is the result of more than a year of collective analysis and study by both Gary’s wife and her associate.
With all due respect, both Sara and Tim defer to the professional judgment of qualified licensed professionals for any legal conclusions or advice to be garnered and/or derived from the compilation, analysis and synopsis as provided, and both;
Thank you in advance for your valuable time and consideration, and for reviewing our synopsis of the Gary E. Harvey case.
Although referred to as the “Gary Harvey case’, the case naturally involves Gary’s wife Sara Harvey, and, likewise the marital estate of both.
Gary E. Harvey is a 62 year old Viet-Nam era veteran. He is currently married to Sara Harvey, and has been since August 1998.<
In January 2006 and at his home in Horseheads NY, Gary was involved in a serious accident which left him “physically and neurologically incapacitated”. Gary’s wife filed for guardianship yet she was ultimately found “unsuitable” and in March 2007 the Commissioner of the Chemung County Department of Social Services (CCDSS) was appointed guardian of both Gary’s person and his estate. A Special guardian was assigned to render Gary Medicare/Medicaid eligible.
The Commissioner/appointed guardian administratively designated Gary’s guardianship to “Adult Protective Services of Chemung County” [APS]. To date and for the past five (5) years APS and the attorneys for Chemung County have called the shots. Neither the Commissioner/appointed guardian, nor her administrative designees, have returned to the trial court to have any of their decisions ratified. With one exception, in July 2009 APS petitioned the trial court for permission to kill Gary Harvey by starvation and dehydration.
Since May of 2009, and following what we believe to contain been a seriously negligent medical event that occurred to Gary while a resident at the Chemung County Nursing Facility (CCNF), Gary has resided on a medical floor in the general patient population and in room 304 at the Saint Joseph’s Hospital in Elmira NY.
Gary is kept in near-complete isolation under the care of a Chemung County doctor, his wife has six (7) hours per week visitation which must be supervised by a paid service-provider of the CCDSS all of which is billed to Gary. All visitors and visitations must be pre-approved by APS, and may only take place during what is otherwise spousal visitation periods, the only theoretical time alone Gary and his wife are afforded, can anyone else visit. In the entire world, at present only three (3) different persons are approved to visit and associate with Gary.
There are major concerns and issue with the care and treatment of Gary since May 2006 when he entered CCNF and came under the care of CCNF Medical Director, Dr. Francisico Corbalan and his staff or the staff of CCNF. To date, aside of medical professionals selected and chosen by Dr. Corbalan, Gary Harvey has seen no independent medical professionals nor has he seen any “specialists/experts” relative to his particular injury and incapacity. Gary is well insured and in the last two (2) years Gary’s private insurance was billed in excess of $950,000.00 and $1,688, 419.12, respectively, for Gary’s care and treatment. Gary receives no rehabilitative treatment, he is maintained on daily doses of narcotics – morphine, valium, and fentynal. He has bedsores and serious contractures because he is never taken out of bed, and he is monitored by a video surveillance camera 24/7.
Additional detail concerning Gary’s medical experiences will be set forth hereinafter. Gary is under a NY MHL/MHY article 81 guardianship. NY Mental Hygiene Legal Services (MHLS) attorney Kevin Moshier is Gary’s appointed legal counsel. It was Attorney Moshier that objected to Gary’s wife being appointed Gary’s guardian, and it was Attorney Moshier who nominated CCDSS to be appointed guardian. It is Attorney Moshier’s “proposed Order and Judgment” which became the final Order and Judgment in this case.
Gary does not come within the subject matter jurisdiction of a NY MHL/MHY article 81 guardianship. Gary is physically and neurologically incapacitated and he suffers no incapacity as define within the mental hygiene code. (See NY MHL/MHY § 81.03) Gary has no past history of psychiatric treatments, illnesses, disorders, diseases, or interventions. Gary is properly a NY SCPA 1750(a)(1),(a) developmentally disabled adult who suffers a “traumatic head/brain injury”.
Gary is not a “patient or resident of a facility” as those terms are defined by MHL/MHY § 81.03. Accordingly, it is improvident to appoint MHLS counsel, and MHLS attorney Kevin Moshier is acting beyond, and has acted well beyond, the scope and duties of MHLS as set forth under MHL/MHY § 47.03. See also MHL/MHY 47.01 relating to “facilities” with appropriate “operating certificates”, yet Gary has never been is any such “facility”. This is admitted among the attorneys in the case and in a letter between them dated October 2010.
CCDSS did not file to intervene in Gary’s wife’s guardianship proceeding, nor did the department commence a proceeding in the name and capacity of CCDSS.
This is an “indefinite” guardianship appointment which bears no reasonable relation to the nature and purpose of any Department of Social Services program or intervention protocol. There is no case-plan, nor intention, to return Gary to the community, to his wife, nor to rehabilitate and reunite the family. There is no adoption protocol for adult wards of DSS, and the APS component/programs available to CCDSS do not provide for long-term, indefinite, interventions – in keeping with the spirit and intent of the NY MHL/MHY article 81 “least restrictive intervention” mandate. (See MHL/MHY § 81.01)
The administrative designation of Gary’s guardianship to Adult Protective Services is “ultra vires”. The designees are neither employees of the Commissioner nor are they lawfully involved as contract service providers. (See MHL/MHY 81.19; see also 18 NYCRR 457.12)(1)
This maneuver implicates 4th Amendment concerns and likewise violates due process as none of the pre-deprivation protections of an appropriate DSS/APS/CPS intervention were afforded. In article 81 guardianship proceedings the alleged incapacitated person (AIP) is entitled to a due process right not to be compelled to give evidence which will be used against them. Implicit in an article 81 guardianship with APS involvement, an “order of access” is required to suffice the “probable cause” requirement and element of a state police power intervention. (See NYCRR 457.11) Likewise missing from this cause is any formal complaint and investigation ______________________________
(1) This allows Chemung County DSS to participate in the state and federal reimbursement programs under 18 NYCRR 620 et seq. into any allegations of abuse, neglect, and/or exploitation. Gary’s wife and others have complained repeatedly of Gary being abused, neglected and exploited – never has any official action been taken.
The New York State Department of Health (NYSDOH) has substantiated incidences of both abuse and neglect of Gary while under the CCDSS guardianship, and still no official action.
The County Attorney professed to accept the county guardianship as “the proverbial guardian of last resort” contingent on participation in the available reimbursement programs. (see 18 NYCRR 457.1; 18 NYCRR 457.3(a); 18 NYCRR 620 et seq.) However, NY has no such “guardian of last resort”, and the guardianship roster of 22 NYCRR Chef Judge Rule Part 36 was completely ignored.
This case is fraught with very serious, plain and obvious, conflicts of interest.
The presiding judge is a former Davidson & O’Mara attorney. The presiding judge’s husband is a former Davidson & O’Mara attorney and is currently a Deputy DA for Chemung County. The Chemung County chief DA is a former Davidson & O’Mara attorney. The attorney for the appointed guardian/Commissioner of CCDSS is Donald S. Thomson.
Attorney Thomson is a part-time Davidson & O’Mara attorney, and a part-time “Lead Attorney” staffed in the CCDSS Legal Department. Until recently Attorney Thomson sat on the Board of Director’s for St. Joseph’s Hospital, and, Davidson & O’Mara is the law firm which represents St. Joseph’s Hospital. Other prominent names from and/or associated with the Davidson & O’Mara law firm likewise sit and/or have sat on the Board of Director’s for St. Joseph’s Hospital. Chief Counsel at the Chemung County Law Department is Attorney Bryan Maggs. He is a part-time Davison & O’Mara attorney and he is part-time on staff at the Chemung County Law Department.
It was attorney Maggs who held ex parte communication with the trial judge prior to the February 1, 2007 guardianship hearing and it was attorney Maggs who slid in the backdoor and secured the guardianship for Chemung County. The Davidson & O’Mara law firm is legal counsel for Chemung County. MHLS attorney Kevin Moshier appointed to Gary --- a former staff attorney for Chemung County Law Department and/or the legal department at CCDSS.
Each and every service provider to Gary and his guardianship is a Chemung County entity, agent, employee, vendor, and/or is otherwise in privy with Chemung County whether directly or indirectly. (See MHL/MHY § 81.19) Everyone who testified against Gary’s wife being appointed guardian is/was a Chemung County entity, agent, employee, vendor, and/or was otherwise in privy with the same.
Gary Harvey, standing in his own right, identity and autonomy, has no adequate remedy at law, nor does he have an equal access to the benefit of the services, programs and activities of the NY Unified Court System, including the right of equal access to the benefit of the services, programs and activities of a review and appeal process, whether judicial and/or otherwise administrative. This is of course a Title II ADA violation under 42 U.S.C. 12131 et seq., and no NY State Court has ever made a reasonable accommodation to include Gary and in spite of repeated requests.
Gary is isolated in violation of the Olmstead Doctrine, this too is of course a Title II ADA violation under 42 U.S.C. 12131 et seq., and his wife has suffered extreme and continuous retaliation in violation of 42 U.S.C. 12203(a),(b).
Both Gary and his wife have suffer deprivations of their First, Fourth, Fifth, Ninth and Fourteenth Amendment rights, privileges and immunities under 42 U.S.C. 1983.
Gary has suffered a deprivation under 42 U.S.C. 1986 – Negligent failure to prevent; and Gary has suffered deprivation of his due process right to be protected under the Fourteenth Amendment as is embodied in the common law duty to protect doctrine. There is without question sufficient grounds to assert a conspiracy to deny and deprive Gary and his wife of their civil rights, both civil and criminal.
Gary is in the legal custody of New York State, albeit he is in the physical custody of CCDSS. Neither CCDSS nor CCNF, nor St. Joseph’s Hospital, are adequately trained, staffed, or certified to provide services to Gary as a Developmentally Disabled citizen.
The NY Office of People With Developmental Disability (OWPDD) is the state mandated service agency and protector of NY’s developmentally disabled citizens and their rights. Gary is being discriminated against and excluded because of, and by, both his age and because of his disability and from equal access to the benefit of the services, programs and activities of the NY OPWDD.
There is no rational basis for excluding Gary from equal access to the benefit of the services, programs and activities of the NY OWPDD. This is an equal protection deprivation in violation of, both, Title II of the ADA and the Fourteenth Amendment. XII Gary has been deprived his right to privacy and confidentiality in both his physician/ patient relationship and his attorney/client relationship as both the physician and appointed attorney testified voluntarily against what would be the personal wishes, desires, preferences, personal interests, past customs and best interests of Gary. *********************** There is of course a host of tort claims, other constitutional claims including property deprivation claims which could likewise be made, but for brevity herein will not be expounded upon. Citations to case law, supporting research and documentary evidence relative to the above I-XII is available, but has been omitted again for brevity.
Gary and Sara married in 1998. Gary was always a fit, healthy competent adult with no history of mental health issues, psychiatric treatments or interventions. He was apparently a bit accident prone, tall at 6’ 3”, a tad clumsy at times perhaps and yet a very loving, caring man who always worked and provided for his wife and family.
Gary’s marriage to Sara was his second marriage and he has two adult-children from his previous marriage. Gary was thirteen (13) years estranged from his ex-wife and children at the time of the accident.
Gary’s divorce was not unlike many others, he paid his support, enjoyed the years of visitation, but as the kids grew nearer to adulthood and with the consternation of his ex-wife, Gary and his kids had no real relationship beyond their tender years. In fact at one point during his early marriage to Sara, sadly, Gary had to formally file an aggravated harassment charge against his daughter – it took the police instructing her to change her behavior for Gary to find peace. Gary always remained close to his mother, however this relationship was tenuous in light of the ex-wife and grandchildren always hovering somewhere close to Gary’s mom. Gary’s mom, although generally somewhat modest, did have a significant estate in her own right and in the years of Gary accident his mother was in and approaching her late-eighties (80’s).
In January 2006 Gary fell down the stairs to the basement in his home in Horseheads NY and suffered a head injury. His wife immediately called 911, Gary was taken to a local hospital where he was listed in serious condition and the official reports indicate that “he will be fine”.
Naturally, the 911 call at the time of his accident resulted in the county sheriff observing and examining the accident scene and official reports found no signs of foul play.
In May 2006 and after Gary’s wife commenced the guardianship proceedings, Gary’s ex wife began stirring up controversy through a relation of hers’ who is a detective with the County Sheriff’s Department and the “accident report” of January 2006 was revisited, reviewed and re-reviewed by the department, again and again from May 2006 to August 2006 – and still no signs of foul play. In this string of Chemung County Sheriff reports the last name appearing who inquired into the investigation ---- is Gary’s appointed MHLS Attorney, Kevin Moshier, in early August 2006.
MEDCAL CARE AND TREATMENT INFORMATION
On the night of the accident Gary was transported to Ogden Arnot Hospital (OAH) in Elmira NY. He remained in OAH for a short period of time after which Gary was later transferred to a rehab center in Hornell NY – where for a time he was on a respirator. During these days Dr. Picco wrote a letter concerning Gary’s status, noting that Gary is/was “physically and neurologically incapacitated”. This letter was naturally attached to the guardianship petition.
Gary was in Hornell for nearly six (6) months of excellent care during which time Gary’s wife played an integral and positive hands-on role in the daily care of her husband. Before Gary left Hornell he was no longer reliant on the respirator, and he was breathing on his own aided by a “cuffed” tracheotomy.
In mid-May 2006 Gary’s wife moved Gary to Elmira and to the “Chemung County Nursing Facility” (CCNF), to be nearer to home for respite care while she arranged “home-care”, and dealt with the guardianship issues. This began a nightmare as the care and treatment at CCNF was deplorable, grossly negligent, abusive and, as soon developed because of Gary’s wife’s protestations -- retaliatory, punitive, adversarial, and, unlawfully arbitrary and capricious.
In short and in sum, and because these horror stories are so much alike in their nature and character – suffice it to say the more she complained, the tighter the grip over her husband and her free association with, and access to, her husband. Ultimately it was the testimony of CCNF administration and staff which was used and relied upon to gain the county guardianship of Gary.
To summarize the care and treatment Gary received at CCNF in the first year of his confinement and in his first year under the County guardianship, (collectively May 2006 to March 2008) Gary had in excess of thirty-five surgeries and medical procedures related to issues with the “cuffed” tracheotomy and/or his feeding tube.
Along with these incidents came hundreds and hundreds of x-rays, blood test, laboratory procedures and God only knows what else. Gary is well insured privately through his wife’s employee benefit healthcare plan under Blue Cross Blue Shield and, Gary is likewise Medicare//Medicaid qualified.(2)
By May of 2009 Gary had undergone in excess of fifty surgeries and medical procedures, still related to the “cuffed” trach and the feeding tube and still while in the care custody and control of CCNF Medical Director Dr. Francisco Corbalan – a geriatrics doctor board certified internal medicine – and the CCDSS guardianship. Gary likewise had numerous episodes of aspiration pneumonia, infections, unexplained loss of teeth, and a NYSDOH substantiate incident of “resident abuse”.
On May 14, 2009 to and about May 17, 2009, Gary had a serious medical event which occurred at CCNF. Gary was back and forth to the emergency room and the hospital several times in these few days, and from this event Gary has never since left Saint Joseph’s Hospital. ______________________________ ______________________________ ____
(2). First thing the guardian did when the county got guardianship, transferred Gary’s estate rendering him indigent and Medicare/Medicaid eligible. They did not transfer Gary’s estate to his wife, but rather shuffled it off “allegedly” into an NYARDC Master Trust. The guardian did quick claim deed Gary’s wife the marital residence for “consideration of your love and companionship”.
She also got the full mortgage debt too unable to re-finance because Gary is still on the note and the guardian is intolerably reluctant to do anything that would benefit Gary’s wife.
Since entering Saint Joseph’s Hospital in May 2009 Gary has undergone another rash of surgeries and medical procedures, and hundreds and hundreds of additional x-rays, blood tests and laboratory procedures. In addition Gary has suffered still more episodes of aspiration pneumonia, approximately fifteen (15) episodes of life-threatening sepsis and MRSA infections, he has suffered an unexplained partially dislocated hip, numerous unexplained bruises and several persistent and reoccurring bedsores. Gary receives no rehabilitative treatment, he is never moved from lying in bed and he has developed serious contractures.
Gary is maintained on a daily diet of narcotic dosing with morphine, valium and fentynal. Since the event of May 2009 Gary is TPN tube fed, and twice NYSDOH has found “patient neglect” in the care and treatment of Gary at Saint Joseph’s Hospital.
Gary is still provided his medical care by Dr. Francisco Corbalan, and no physician sees Gary and no procedures are performed that are not chosen and supervised by Dr. Corbalan. Gary has never had a truly independent second medical opinion, evaluation, assessment and/or diagnosis.
When Gary entered the emergency room at Saint Joseph’s Hospital in May 2009, he arrived mysteriously with a DNR order in his medical record. Initially, Dr. Calderone reasoned that because Gary was a ward of the state and that TPN feeding would not afford Gary any dignity, it was quietly decided to empanel an “ethics committee” and decide Gary’s course of treatment and care. In July 2009 – Ms. Rita Gould, Director NY Connects/Adult Protective Services of Chemung County petitioned the guardianship court for permission to kill Gary, by starving and dehydrating him to death. This petition was later withdrawn, and Gary survives to this day, neglected and exploited by his guardians and custodians.
On April 6, 2006, and by counsel used in her legal affairs many years previously, Gary’s wife filed for guardianship in the Chemung County Supreme Court under NY MHL/MHY article 81. This too had been Gary’s attorney in the past and for his various legal matters.
Counsel’s advice, Gary’s wife always felt NY SCPA 1750 was the appropriate guardianship for Gary. Nevertheless; The Rule To Show Cause was signed by the Court in late April 2006 and the Court appointed a Court Evaluator (CE). The CE later filed his report indicating that because Gary’s wife requested in her petition for the authority to withhold life sustaining treatment, an O’Connor hearing would be necessary and an appointment of counsel for Gary would be appropriate.
Nowhere in Gary’s wife’s petition did she request the authority to withhold life sustaining treatment, nowhere.
In early June 2006 and on the report of the CE, the Court appointed “Mental Hygiene Legal Services” (MHLS) as legal counsel for Gary. This order was directed personally to Attorney Kevin Moshier at his office within the Elmira Psychiatric Center which is located in the Elmira community and just a short walk across the street from both CCNF and St. Joseph’s Hospital (SJH)
In the days and weeks following – in spite of the protestations of Gary’s wife about the presence and role of MHLS Attorney Kevin Moshier – the attorneys worked among themselves –involving Gary’s mom, his two adult-children, and Gary’s ex-wife.
By early August 2006 the attorneys entered into an apparent agreed stipulation which was submitted to the court in pro forma and without detail, but once reduced to writing and presented to Gary’s wife she protested and would not agree. Withdrawing this stipulation painted her as “unreasonable” among the attorneys and then Gary’s appointed MHLS Attorney ask the judge to suspend further proceedings “pending completion of his investigation”.
Gary’s wife fired her lawyer and went looking for new counsel, all the while CCNF ratcheted up the reprisals on Gary’s wife, taunting her at most every step of the way. Gary’s wife is an assertive individual, she had a very legitimate complaint and she was going to be heard.
In mid-late October 2006, Gary’s MHLS attorney Kevin Moshier filed documents to re-open an August hearing and present further testimony and evidence concerning who should be appointed guardian.
These proceedings are adjourned a time or two while Gary’s wife secured new counsel and by mid-December 2006 Gary’s wife secured the services of Attorney Peter Finnerty. A hearing date of February 1, 2007 was scheduled on Kevin Moshier’s filings – which were comprised of his affidavit and affidavits from CCNF staff and administration.
Believing she hired an attorney yet the night before the February 1 st hearing Gary’s wife comes home from visiting Gary and to a voicemail from Attorney Finnerty, says there is a problem. In sum, on February 1, 2007, and at the inception of the hearing Attorney Finnerty withdrew his representation of Gary’s wife due to a conflict of interest.
He was an attorney for the Chemung County NY Department of Social Services and unbeknownst to Gary’s wife, after attorney Finnerty was dismissed and left the courtroom, later in the court hearing MHLS attorney Kevin Moshier nominated the Chemung County Department of Social Services to be guardian of both Gary and his estate. Sitting in the back of the courtroom, pre-prepared, was Chemung County Attorney Bryan Maggs, Lead Counsel Chemung County Law Department.
Attorney Maggs claims the county is “the proverbial guardian of last resort”, claims he does not want the guardianship, not sure “where the money is”, but if the county can find their way to “reimbursement funds” the county would accept guardianship unless or until some other suitable person could be found.(3)
By mid-late March 2007 Gary’s wife had hired Attorney William Shaw. Attorney Shaw’s associate immediately wrote the judge asking that no final order be made or entered in order that he may have time to review the case, yet the judge wrote back, “….. on this day of March 26, 2007 the court signed the proposed order and judgment submitted by Attorney Moshier.” ____________________________________________________________________
(3). The events of this hearing and Attorney Finnerty’s withdrawal are no coincidence. Attorney Finnerty took a two-thousand dollar retainer on December 14, 2006. He filed his appearance on January 31, 2007, withdrew his appearance on February 1, 2007 and sent Gary’s wife a check in refund of fifteen-hundred dollars
So ---- Gary’s appointed MHLS attorney objected to Gary’s wife being appointed his guardian, and he nominates the Chemung County DSS (CCDSS) --- his former employer.
Attorney Moshier is a former “in house counsel” of the Chemung County Law Department and/or the Legal Department at CCDSS. CCDSS did not formally file to intervene in Gary’s wife’s petition and proceedings, nor did CCDSS file a petition in the name of the county department.
The appointment is “indefinite”. Gary is never, without court approval, to be returned to a residence under the control and supervision of his wife.
The appointed guardian/Commission CCDSS almost immediately and without prior court approval or further court order, “administratively designates” Gary’s guardianship to Adult Protective Services. (These are not the Commissioner’s DSS employees, nor is APS a program under her DSS office.
In NY, PSA/APS is provided through Dept. of Aging and Long Term Care. At present this service is provided to CCDSS under an expired contract, and/or an illusory contract which never was or has been.) This allows the County DSS to participate in the administrative state and federal reimbursement programs.
(4) This scenario has persisted now for five (5) years.
Attorney Shaw spent approximately four (4) years and sixty-five thousand dollars ($65,000.00) focused on trying to investigate the medical issues and re-gain some visitation for Gary’s wife. He was unsuccessful on both accounts, and then became a NY state court judge.
The findings and adverse rulings against Gary’s wife --- she was deemed “not suitable”, she exhibited “poor judgment”, “unrealistic expectations”. She is suspected of feeding Gary Jello which could put him at risk of aspiration pneumonia; she took Gary off CCNF grounds in his VA provided “Broda chair” and was seen pushing Gary around a near-by park thereby putting him in harm’s way, and the trach incident
(5) which you will read below is truthfully a non-issue with regard to tainting Gary’s wife . ____________________________________________________________________
(4). This is also highly unconstitutional as what began as a benevolent parens patraie proceeding is now being administered under the state’s police power’s. This is akin to being placed on probation without ever being charged or convicted of a crime. APS has imposed its “administrative protocols” none of which are ratified by the court, and they refuse to put any decision, order or directive into writing.
(5). In mid-September 2006 and because of much consternation over the fact that the “cuff” on Gary’s trach had been inoperable for weeks and had gone ignored and unrepaired, Gary’s wife Cut an innocuous piece of vinyl tubing. This event has been used to beat-up Gary’s wife ever since. However and after three years of FOIL requests and appeals, which, ultimately had pass through Chemung County Attorney Bryan Maggs, in December 2009 Gary’s wife learned from a NYSDOH report and correspondence, she was never named as a perpetrator to any such incident. Exonerated, and her adversaries knew/know it. CCNF/MHLS/CCDSS knew this in December 2006.
Gary was decannulated in November 2006 , and he lived without any trach whatsoever for approximately six (6) months before CCNF and Dr. Corbalan ordered the trach re-inserted.
OTHER COURT ACTIONS
Gary’s wife has tried to work within the guardianship Court largely through Attorney Shaw and his years of being stonewalled while trying to investigate the medical issues, re-gain some consideration for Gary’s wife to freely visit and associate with Gary, and/or otherwise find a working relationship with Chemung County and its agents whether employees and/or contract service providers. In sum, the County was adamant about creating and maintaining an adversarial posture and relationship.
In December 2010 Gary’s wife embarked on some pro se efforts in the guardianship court and she was met by a very hostile atmosphere, an angered Judge and a local bias and prejudice intent on excluding Gary and his personal wishes, desires and preferences from any and all court proceedings. Post-judgment motions for relief; a writ of habeas corpus; challenges to the conflicts of interest; requests for counsel and a reasonable accommodation; requests for discovery, for a change of venue, disqualification of attorneys, recusal of the judge – all summarily denied. In April 2011 the trial judge compelled Gary’s wife to conduct a hearing pro se, and on a motion filed by Attorney Shaw over two years previously.
In May 2011 and after a writ of habeas corpus was summarily denied in the Appellate Division, and Article 78 petition was filed in the Appellate Division against the Judge et al. seeking writs of prohibition, mandamus and certiorari. This petition survived motions to dismiss --- and was later withdrawn by Gary’s wife, in advance of the following; In November 2011, Gary’s wife filed a pro se federal lawsuit asserting claims under Title II of the ADA and 42 § 1983. This effort was dismissed on Rooker-Feldman grounds and post judgment motions have been filed pending an appeal if necessary.
The NY State Court Judge administering to Gary’s guardianship has issued an “Order” which purports to bar Gary’s wife from appearing in her court pro se and/or as “Wife/Next-Friend” on behalf of Gary. (6) _____________________________________________________________________
(6) Testimony of Dr. Corbalan admits and acknowledges that Gary receives (a) “He needed total care; by that I mean he needed … the nursing home staff, to provide for all his needs, which included feeding.” Dr. Corbalan continues to state; “He needed to be toileted; he was incontinent of stool and urine. He needed to be transferred, turned. He was not verbally communicative or in any other way. So, basically what they call total care.” (b) no rehabilitative treatments. (c) “The important thing is not where he is, whether he is at St. Joseph’s Hospital or a nursing home or someplace else. The important thing is he has to be in a place where the care can that he’s getting can be provided. It doesn’t matter what the location is. There are certain things that he needs and as long as he gets those things, he can be anyplace.” (d) “He needs three people to take care of him 24 hours a day which normally means you need nine people to take care of him.”
Interestingly enough Dr. Corbalan states my husband could live anywhere and yet the treatment and billing codes which facilitate payment indicate that hospitalization is continually medically necessary due in part to reoccurring infections. Yet it is well known and documented that hospitals are themselves notorious for being a source of infections.
The case of Gary Harvey and his wife shares in many of the same attributes and legal issues as did/does the case of Daniel Gross.
Gary’s wife and her supporters believe honestly that their analysis of and research on Gary’s case is accurate, favorable and on point, and, were it not for the uneven playing-field in the court room, Gary’s case is ripe to be won.
Gary Harvey needs an attorney
(7) and he needs to be immediately/ASAP transported to a “qualified medical facility”
(8) for a truly independent “qualified” examination, for a complete, thorough assessment and comprehensive diagnosis, and for a course of care and treatment that is humane.
Neither the State of New York nor CCDSS, nor Dr. Corbalan, have any business defining and deciding the quality of life Gary Harvey shall enjoy, yet they have decided – and they have chosen to discriminate against Gary, deprive Gary of his most basic and historical fundamental liberties and, violate both his civil and human rights and those civil and human rights of his wife Sara Harvey.
There is a better quality of life available for Gary Harvey, just not where he is and under the present course of care and treatment being afforded him. _____________________________________________________________________
(7). Gary’s wife and her supporters would readily volunteer any time or task assignment needed to facilitate any attorney or attorney’s staff members working on Gary’s case. In sum, it is believed that any attorney and/or staff member of an attorney could be “brought up to speed” clearly on point and timely.
(8). Gary’s wife has “pre-staged” Gary’s admission with other medical facilities (i.e. The Cleveland Clinic, Mayo Clinic, Kessler Institute, Buffalo VA, etc.) These facilities require a “physician’s referral” which has been refused and denied CCDSS and, resisted by Gary’s MHLS appointed attorney Kevin Moshier. Gary’s wife has likewise pre-discussed these various option with her health insurance provider and the services she seeks for Gary are in fact covered and available under her insurance plan.
Gary’s wife is “certified” in article 81 guardianship by the NY Bar Continuing Ed program. She is trained and certified to provide care for Gary and, she has prepared and submitted a care plan which is supported and applauded by a licensed Health Facility Administrator who is among her supporters Gary’s wife is a 33 year employee of a single employer where she works full time. She advocates daily for her husband and maintains the marital residence which is more than suitable and readily accessible to accommodate Gary and home-care.
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