Opinion
# 2018-018-943 Claim No. 122867
07-13-2018
AMY COOPER v. STATE OF NEW YORK
IZZO LAW OFFICE PLLC By: Janet M. Izzo, Esquire BARBARA D. UNDERWOOD Attorney General of the State of New York By: Joseph Callery, Esquire Assistant Attorney General
Synopsis
State could not be held liable for this patient assault where it is speculative that additional responding staff could have prevented actions of paroxysmic inpatient perpetrator.
Case information
| UID: | 2018-018-943 |
| Claimant(s): | AMY COOPER |
| Claimant short name: | COOPER |
| Footnote (claimant name) : | This matter was commenced when the Claimant was an infant and single. The caption has been amended to reflect her married name. |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122867 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | IZZO LAW OFFICE PLLC By: Janet M. Izzo, Esquire |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Joseph Callery, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 13, 2018 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks damages for injuries she sustained as a result of an assault and battery by a fellow patient while she was being treated as an inpatient at Hutchings Psychiatric Center (Hutchings) in Syracuse, New York, a State-owned facility. The trial of this case was bifurcated and this Decision addresses liability only.
Claimant testified that in 2010 her parents were separating and it was quite contentious; her father verbally and physically abused Claimant and her mother, and Claimant had been traumatized by seeing and experiencing this abuse. She felt that her parents used her and her siblings against each other without regard to their feelings. In August 2010, Claimant, her mother, and sister moved from the rural area where the family had lived, and Claimant had grown up, into her mother's boyfriend's house in a more suburban or city-like area. Claimant was 15 and beginning 9th grade in a new school district where she felt out of place. Her mother's boyfriend had a daughter, about the same age, who lived with her own mother, and Claimant said the daughter caused trouble for her at school. In addition, Claimant had been in a relationship with an older man which resulted in her mother punishing Claimant. The family doctor prescribed antidepressant medications for Claimant. Claimant's new school provided Claimant a guidance counselor to meet with her to help her adjust. Despite the help Claimant was receiving, she continued having difficulty coping with all the issues. At trial, Claimant testified that she had attempted to overdose on her antidepressant medication before her admission to Hutchings. According to the admission records from Hutchings, Claimant had a history of self-injurious behaviors and suicidal ideations.
Claimant's birthday is August 9, 1995.
Exhibit 1.
Claimant's mother took her to Oswego Hospital on May 10, 2011, after Claimant told the school guidance counselor of her attempted suicide. She was transferred to Hutchings on May 12, 2011. As part of the Hutchings' admission process, Claimant's mental health was evaluated and she was shown around the facility. On the second floor, where the adolescent patients were housed, there were three hallways with individual bedrooms which were identified as the north, south, and west wings. Each wing housed about seven patients. Claimant was assigned a room in the south wing. All of the patients assigned to a wing moved around the facility as a group with at least one monitor with them at all times. Each junction of the three hallways had double doors which automatically locked when closed. In the middle of the floor was a nurses' station. The doors on the second floor were kept open most of the day unless a patient was "acting out." Staff members had badges which unlocked the doors and set off an alarm for help. Claimant recalled that there were buttons on the walls which, when pushed, would close the doors.
Claimant testified she was at Oswego Hospital for three days; the medical records reflect admission to Oswego on May 10, and admission to Hutchings on May 12.
Claimant, at trial, was unsure if it was the second or third floor.
Claimant referred to the Mental Health Therapy Aides (MHTA) as monitors.
All quotes are from the trial transcript unless otherwise noted. Here, Trial Transcript Volume I, p. 31.
The cafeteria was at the far end of the north wing. Each group ate separately and had separate "dayrooms". The classrooms were on the main floor as was the dayroom for the south wing. The north and west wing dayrooms were on the second floor. During school hours, the adolescent groups would attend assigned classes, English, math or science. Class assignments were not restricted to the south and west groups' designation. This was the only time the groups were mixed, or when there were patient conflicts. After school and after dinner, the groups would spend time in their respective dayrooms watching television, playing cards, doing crafts and the like. After school, in the afternoon, patients would have individual therapy sessions or sessions to work on general coping skills.
Claimant testified that when a patient became disruptive or aggressive, an alarm would sound throughout the building. The building would be in lockdown mode and all doors would close and lock. Claimant described Hutchings as a threatening environment. She felt out of place because so many patients seemed unstable, loud, and aggressive. Even the quiet and reserved patients often had unpredictable outbursts. Claimant felt she was more normal than most patients and did not belong there. She was never the cause of a lockdown.
Claimant is 4' 10" tall and weighs about 105 lbs.
Claimant testified that she became friendly with two people in her group, Brittany and Jonathan. Before June 20, 2011, none of the three ever argued or had any issues with each other. On June 20, after dinner, Claimant's group went to their dayroom. Claimant described the room as small and very cramped. The monitor, Amanda Schaeffer, was alone with the south group which, according to Claimant, happened occasionally. Jonathan fell asleep on a beanbag which was between the couches and the television. Claimant was sitting on the couch and Brittany was sitting at the table behind the couch playing cards with the monitor. While Jonathan slept, Claimant observed him twitching a lot and making "aggravated facial expressions." When he awoke, he went to the doorway and stood with his back to the interior of the room. Brittany walked toward him. As they stood in the doorway, Brittany whispered to him. He just turned and stared blankly at her. Then, suddenly, Jonathan screamed loudly and with his two hands, he pushed Brittany across the room. As she landed, she knocked over a chair and table in the corner. Jonathan then ran into the horseshoe shaped hallway hollering loudly but not coherently. Ms. Schaeffer took the other patients to the door leading to the stairwell, diagonally across the hall from the dayroom, and tried to open it. The stairwell led to the group's bedrooms. Ms. Schaeffer's badge would not unlock the door, she was swiping it very quickly. No alarm was sounding. Claimant could hear Jonathan yelling and pounding on the steel doors at one end of the corridor. He then stopped yelling and came back toward the group. Ms. Schaeffer tried to herd the group back into the dayroom where Brittany remained. He ran at Claimant and swung to hit her but given her much smaller size, she ducked and his arm missed her. Claimant ran down the hall toward the locked doors and he followed; he tried to punch her again but missed again. Claimant ran toward the dayroom where Ms. Schaeffer had moved everyone, and once Claimant was inside Ms. Schaeffer closed the door which locked. In what seemed like seconds, Jonathan broke through the steel reinforced door, grabbed what Claimant later learned was a trash bin and hit Claimant with it. She fell to the floor and called for her mother before everything went black. She heard the alarm sounding at that time.
See Exhibit 8.
Labeled A on Exhibit 8.
Trial Transcript, Volume I, p. 57.
Jonathan was at least 6' tall and muscular. Ms. Schaeffer, the monitor, is about 5' tall and of slight build but athletic.
In Exhibit 1, a nurse's note documenting the incident said Claimant was hit with a telephone. Claimant did not see what was used at the time, but her mother saw a smashed trash bin covered in blood.
On cross-examination, Claimant acknowledged that her recollection from seven years ago might have made some details "fuzzy", but her testimony was how she remembered the chaotic events. She also agreed that her memory was better at the time of her deposition than at trial.
Trial Transcript, Volume I, p. 74.
The State called Kristin Russell-Miller, the treatment team leader at Hutchings Children and Youth Services (CYS) who described the building and staffing during June 2011. She managed admissions and supervised the clinical team by overseeing the therapy schedules. Although she did not schedule the staff, she would be made aware of who was working. At the time Claimant was an inpatient, CYS was a 30-bed unit, 11 beds for children under 12, and 19 beds for adolescents between 12 and 18 years old. On June 20, 2011, there were 9 children and 17 teenagers in CYS. The staff that night numbered 14 including two nurse-administrators who would be the evening supervisor; three psychiatric nurses, two of whom would be assigned to a nursing station on the second and third floors, and the third nurse has an office near the main entrance on the first floor. There were nine MHTAs working that night. Ms. Russell-Miller explained that a MHTA would be assigned to a group - there were two children's groups and three teen groups. The rest of the aides would either be assigned to monitor a patient one-on-one, or would be a "floater." She did not know how many MHTAs were floaters that night, but said it is common to have two floaters, one for the teens and one for the children. If an aide is assigned to a group or to one-on-one observation, they are required to stay with their assignment even if there is an emergency. The nurses and the floaters, if free, respond.
The witness did not engage in any treatment of patients.
Exhibit D.
Every staff member at Hutchings has keys for the doors, which they must carry, and a fob-like device that when pressed sets off a building-wide alarm. There are display boards at various locations in the building which indicate where the alarm was triggered. In addition, there is a loud, repetitive "ding" to alert staff of the need for assistance. If the emergency is not routine, a telephone call can be made to a person in the safety office who then sends out a campus-wide page for additional responders who can access the buildings. This safety system was activated on June 20, 2011, but Ms. Russell-Miller did not know at what point either alarm was sent.
In reviewing records, Ms. Russell-Miller noted that the aide overseeing Claimant's group, Amanda Schaeffer, was in her first year of employment at Hutchings. Before any staff member can begin working with patients, he or she must complete certain training as required by the New York State Office of Mental Health (NYS OMH) guidelines. Part of that training is Preventing and Managing Crisis Situations (PMCS). According to the records, Amanda Schaeffer had her annual review on November 16, 2011. Ms. Russell-Miller did not have any personal knowledge of Ms. Schaeffer being involved in any prior alarm situations, but said alarms would go off on a daily basis.
Exhibit 5.
See Exhibit 5 (last four pages of exhibit). The documentation indicates this was an annual review and not the initial program.
Claimant's only other witness was her expert, Doctor Burton Singerman, a practicing psychiatrist in Pennsylvania. At trial, Defendant made a motion in limine to preclude the testimony of Claimant's expert on the ground Claimant failed to comply with the expert witness disclosure required by CPLR section 3101 (d). Claimant provided Defendant with a written expert disclosure dated November 27, 2017. The disclosure does not identify the expert by name but describes his credentials and qualifications and the grounds for his opinions. The parties took the trial testimony of Dr. Singerman on January 22, 2018, by video deposition.
Exhibits 11 and 12.
Motion in Limine - Preclusion :
During Defendant's examination of Dr. Singerman, Defendant asked about the date he was retained which exposed the fact that he was retained after Claimant's expert witness disclosure was drafted and served. Defendant argues that the submission of an expert disclosure which was prepared for another expert and disclosed anticipated substantive testimony in areas that Dr. Singerman did not address in depth, is misleading and renders the disclosure insufficient to meet the requirements of CPLR 3101 (d). Defendant contends that when the expert changed, the expert disclosure should have also been changed to reflect the different qualifications and substantive opinions of this new expert. Defendant argues that because of the improper disclosure, counsel's cross-examination was less effective - focusing on the wrong areas, and its expert didn't have the opportunity to consider the areas upon which Dr. Singerman focused. These new theories should have been disclosed.
The Court denied Defendant's motion on the record. Defendant renews its request for preclusion in its posttrial submissions asserting Dr. Singerman's testimony presented theories of liability not set forth or apparent from the expert witness disclosure. It is Defendant's position that since the expert witness disclosure was not prepared to disclose Dr. Singerman's testimony, every theory espoused by Dr. Singerman was a "new theory." Defendant continues to argue that Dr. Singerman's testimony did not address many of the subject areas disclosed and, instead, includes testimony in other areas not disclosed at all. Specifically, Defendant points to the testimony of the inadequacy of the Hutchings' alarm system and the configuration of the building, relating to the dayroom Claimant's group utilized being on a different floor from most of the other staff.
Trial Transcript Volume II, pp. 117-122.
Claimant opposes preclusion and argues Dr. Singerman was not retained as a means to intentionally withhold information, and the expert witness disclosure was not meant to conceal information or mislead Defendant. Rather, Dr. Singerman was retained in late December due to the unexpected unavailability of Claimant's previously retained expert. Dr. Singerman adopted the Expert Witness Disclosure as drafted in November 2017, and agreed with the substance set forth in the disclosure.
CPLR 3101 (d) provides that upon request a party
"shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just."
The purpose of the expert disclosure is to foster "adequate and thorough trial preparation" and the failure to comply warrants preclusion if "there is prejudice and a willful failure to disclose." (McColgan v Brewer, 84 AD3d 1573, 1576 [3d Dept 2011]). In reviewing the Expert Disclosure and the testimony, the Court finds that although it would have been a far better practice to supplement the disclosure after retaining Dr. Singerman, the Court does not find that his testimony should be precluded for several reasons.
Claimant's previously retained expert could not testify at trial, so Dr. Singerman was retained only a few weeks before the trial. Dr. Singerman adopted the disclosure as drafted and agreed with its substance. Defendant is correct, the disclosure should have identified the placement of Claimant's group in the dayroom on a floor separate from the rest of the adolescent unit as a component of the inadequate staffing about which Dr. Singerman testified. Yet, the disclosure made reference to Defendant failing to have the proper number of staff appropriate for the number of patients present considering the conditions. The word condition encompasses Claimant's position, as described in her bill of particulars, that the minimum number of staff required by accepted standards were not present when the adolescent patients were occupying the "program unit," and additional staff were not available to immediately help with sudden and emergent changes. [emphasis added] The disclosed "Substance of Facts and Opinions" was not so misleading and or inconsistent to warrant preclusion (Byrnes v Satterly, 85 AD3d 1711, 1712 [4th Dept 2011]; Hageman v Jacobson, 202 AD2d 160, 161 [1st Dept 1994]). To the extent that Dr. Singerman opined that the emergency alarm system at Hutchings departed from the standard of care, it was Defendant who inquired and pursued this line of questioning. The Court also offered a continuance of the trial to allow either party additional time, due to the timing of the expert testimony, which was declined. Finally, Defendant was allowed to have his expert, who viewed Hutchings, consider and testify regarding the configuration of the facility. For these reasons, the Court denies Defendant's motion in limine to preclude Dr. Singerman's testimony.
Bill of Particulars ¶ 6, p. 3.
See Exhibit 12, pp. 82-88.
Dr. Singerman, during his career, worked in a clinical setting and had been chief of psychology at Buffalo General Hospital for seven years. At the time of trial, he was an outpatient clinician. Defendant's expert witness was Dr. Robert Weisman, a Professor at the University of Rochester Medical Center, and a practicing, board certified, psychiatrist and forensic psychiatrist. They both reviewed the documents associated with this action including the claim, the bill of particulars, Claimant's deposition, and policies and procedures for Hutchings and NYS OMH.
Both experts discussed and agreed with each other on a number of general principles regarding inpatient psychiatric care for adolescents. They both based their understanding of the events of June 20, 2011 on Claimant's deposition testimony, which is not before the Court as an exhibit. Although their recitations of what they understood occurred that night aligned with Claimant's trial testimony, clearly her deposition was more detailed.
Claimant's deposition testimony did not come into evidence except for certain excerpts set forth in Defendant's Exhibit F. The experts reference some information from Claimant's deposition testimony about which Claimant did not testify at trial. The Court has considered these details, as relied upon by both parties, as relevant to the experts' testimony.
The NYS OMH guidelines direct State facilities to provide a safe and secure therapeutic environment for their patients to reduce or eliminate violence occurring to anyone on the premises. One requirement in achieving this goal, according to the experts, is that a risk assessment of each patient is performed on admission and is continually reviewed and, if necessary, updated during the patient's stay. Hutchings requires a 72-hour "close observation" for new patients. Based upon the patient's risk assessment, an observation level is determined. This, too, is reviewed regularly and, if necessary, revised based upon the patient's behavior and whether they are a danger to themselves or others. The observation levels can range from "one-on-one" to "routine," each level having a certain ratio of staff-to-patient contact requirements. The observation levels are ordered by a physician. In making determinations about treatment, restrictions, and observations levels, the experts explained that the staff works as a team, apprising each other of patient behavior or stressors that would affect these decisions.
Exhibit 7.
Exhibit 4, which reads in part: "Patients are restricted to the unit and visibly checked every 15 minutes."
Exhibit 4.
The experts both explained that the least restrictive measures should be used when dealing with patients in a psychiatric hospital. It has become the standard of care to treat patients with enough care, supervision, and service, as needed, without being coercive or authoritative. Staff is trained in preventing and managing crisis situations, this training is required by NYS OMH and Hutchings. The Preventing and Managing Crisis Situations (PMCS) training is outlined in Hutchings' Policy and Procedural Manual. It reads in part:
Exhibit 5.
Exhibits 5 and 7.
"The techniques include assessment strategies, non-verbal and verbal calming techniques, effective use of body language, spatial considerations and physical interventions. The emphasis of crisis free is on the careful assessment and prevention of disruptive behavior as well as the use of the least restrictive intervention."
Exhibit 5, bottom of p. 1.
The policy also discusses treatment and planning as a team concept.
The experts also agreed that certain factors could be indicators of potential violence, although only a minority of psychiatric inpatients are considered violent. Some of these factors are gender (males being more prone to violence), prior violent behavior, socioeconomic status, diagnosis, lower intelligence, head trauma, substance abuse, and treatment nonadherence. Dr. Singerman had no records for Jonathan, so he could not testify to whether any of these factors, other than gender, applied here.
Another aspect of maintaining a safe environment is having a system for dealing with emergencies. Because patients in this setting can be unpredictable, it is imperative to have a system to alert others when there is an urgent situation so all other available staff can respond. A component of these emergency protocols is sufficient staffing. The American Academy of Child and Adolescent Psychiatry (AACAP) recommends three staff members should be available for every nine patients. Dr. Weisman agreed that this was a guideline but not a requirement. The American Psychiatric Nurses Association (APNA) also have staffing guidelines but based on the needs of the unit, not a numerical ratio. Factors which are considered are the degree of impairment of the patients, the physical design of the facility, and the mission of the program. This was described by Dr. Weisman as a more fluid staffing plan.
The policies and procedures in place at Hutchings on June 20, 2011 were in keeping with the standard of care in the psychiatric community according to both experts. Dr. Singerman opined, however, that on that day Hutchings failed to follow those policies. In his experience, recreational and school programs are contiguous with the rest of the unit and not on a different level of the facility. Dr. Singerman expressed concern with placing two aides with seven psychiatrically ill adolescents in a recreation room a floor apart from the rest of the unit, which was the typical Hutchings staffing, however, having only one monitor under these circumstances he opined was "thoroughly unacceptable." Dr. Singerman believed the physical separation from the rest of the unit required changes to the number of needed staff. He said it did not seem that on June 20, 2011, that an emergency call had been made before Claimant was assaulted, and the physical isolation of the group increased the risk of danger. Although he did not visit Hutchings and he was unfamiliar with Hutchings' alarm system, he did refer to various means of alerts similar to those in place in Hutchings.
It was Dr. Singerman's understanding from reading Claimant's deposition that her sleeping and dining rooms were on the third floor. Later in his testimony, he was advised those rooms were actually on the second floor. It did not change his opinion.
Exhibit 12, p. 38.
Dr. Weisman, was asked and indicated he had no "belief" that Hutchings was improperly staffed the evening of June 20. He testified that staffing guidelines are based on a unit consisting of a designated treatment program for a designated group, and the staffing ratios are not typically applied to a specific group within that unit. After testifying that additional staff might have prevented the attack on Claimant, he said it was speculative.
Trial Transcript, Vol. III, p. 214.
Dr. Weisman agreed that the early detection and intervention before disruptive behavior occurs is the goal of the State PMCS training and policies. Both he and Dr. Singerman noted that the aide in the dayroom the evening of the assault seemed aware of Jonathan's change in behavior, based upon Claimant's deposition testimony that the aide spoke with him before he fell asleep. If the aide had perceived a threat or risk of violence, Dr. Weisman agreed it would have been her responsibility to take some action such as further assessment, calling for assistance by yelling, using her personal alarm or the telephone, and/or separating the individuals. However, after Jonathan pushed Brittany, Dr. Weisman said that would be a point of urgency and a response from the aide was necessary. Dr. Weisman also opined that one aide, with seven patients in one area, where other staff members could not access that area or were significantly delayed in reaching them would be "risky." Both AACAP and APNA guidelines for staffing take into consideration the facility's physical configuration, according to the experts, and Dr. Singerman expressed his opinion that the Hutchings' configuration required more than one aide in the dayroom on the first floor given the fewer staff in the later evening hours.
Trial transcript Vol. III, pp. 261-262.
There was no testimony or evidence regarding the actual location of any other available staff member at the time of the assault. It was Claimant's testimony that she did not see any other staff members between the time of the assault on Brittany and when she was injured. Nor did she hear any alarm during that time frame. There was also no evidence about how long the time period was between the assault on Brittany and the assault on Claimant. Dr. Singerman estimated a few minutes, while Dr. Weisman counted the number of adult steps to travel the hallway following Jonathan's route. He estimated it would take him less than a minute or even 30 seconds to walk from the dayroom to one end of the hall and then go back to the other end of the other hallway. Claimant testified it "felt like a matter of seconds" between the dayroom door being closed behind her and Jonathan breaking in.
Trial Transcript, Vol. I, p. 62.
Legal Discussion :
The claim raises causes of action in medical malpractice and negligence. It is alleged that the State failed to keep Claimant free from harm, segregate her from violent patients, failed to properly train staff, failed to have sufficient staff supervising for the number of patients, failed to provide adequate supervision and segregate potentially violent patients, failed to provide adequate aide to Claimant, and failed to have proper policies and procedures in place to prevent Claimant from being injured.
Claimant also alleged a violation of Public Health Law section 2801-d for deprivation of a right or benefit conferred by contract, statute, regulation, code or rule but did not pursue this cause of action at trial or in her posttrial brief, and the Court finds this cause of action has been abandoned (see Smith v Fayetteville-Manlius Cent. School, 32 AD3d 1253, 1254 [4th Dept 2006]).
The distinction between a medical malpractice case and one sounding in negligence is not always easy to draw. A medical malpractice cause of action is a form of negligence that involves a failure to provide appropriate medical care - a deviation from the standard of care - arising from "medical treatment or bear[ing] a substantial relationship to the rendition of medical treatment." (Bleiler v Bodnar, 65 NY2d 65 [1985]). If the determination of whether due care was used requires medical expertise, the action sounds in medical malpractice (Zellar v Tompkins Community Hosp., 124 AD2d 287 [3d Dept 1986]). In many cases, there is no bright line distinguishing the two, but rather a subtle distinction culled from the specific wrongdoing alleged in the pleadings.
In its post-trial brief, Defendant contends this is a medical malpractice case relying on Zellar, 124 AD2d 287. In Zellar, a patient undergoing treatment for cancer fell from her hospital bed trying to get to the bathroom, she alleged a failure to provide a bed pan or respond to her activated call button for assistance. The Third Department described response time in a hospital as directly involving the question of patient care, which bears a substantial relationship to a patient's medical treatment (Zellar, 124 AD2d at 289). The Court noted that whether the hospital breached its duty of care required a comparison to the standards customarily exercised by hospitals in the community which cannot be fully grasped without understanding the "operational demands and practices of a medical facility." (Id.). This requires expert testimony. Interestingly, however, the Zellar court also held that the plaintiff's contention of inadequate staffing spoke to negligence, not medical malpractice.
Here, a careful view of Claimant's allegations reveal not an actionable failure to respond to the violent outburst of Jonathan because of his psychiatric condition, or because of Claimant's psychiatric condition and plan of treatment, but a failure to provide enough staff for the number of patients, the conditions, and the patients' - as a group - propensity for violence. Claimant does not take issue with the level of observation - medically determined - that her or the other patients required, but rather the level of staffing necessary to keep patients reasonably safe given the needs and risks of the group as a whole. This involves "a different duty" than a medical malpractice cause of action, this sounds in common negligence and arises from the State's general duty to keep patients in its institutions safe from foreseeable harm (Lipe v Albany Med. Ctr., 85 AD3d 1442, 1443 [3d Dept 2011]; see Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996]; Huntley v State of New York, 62 NY2d 134 [1984]; Wulbrecht v Jehle, 92 AD3d 1213 [4th Dept 2012]). Claimant's position is that there was a failure to protect her from harm between the time Jonathan assaulted Brittany and his assault on Claimant.
Although there was some testimony, particularly from Dr. Weisman, that Claimant was sensitive to loud yelling and banging stemming from her family environment, and this caused her stress.
The State has a duty to protect its patients in its institutions from harm that is reasonably foreseeable (N. X. v Cabrini Med. Ctr., 97 NY2d 247, 252 [2002]; Killeen v State of New York, 66 NY2d 850, 851 [1985]). This does not require "constant surveillance" and the State is not an insurer liable for any harm which occurs (Killeen, 66 NY2d at 851-852; Hirsh v State of New York, 8 NY2d 125 [1960]). Claimant bears the burden to prove the State was negligent, and negligence cannot be presumed from the mere happening of an accident (Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]).
See Exhibit 7, "The purpose of this policy directive is to: 1) eliminate or reduce the occurrence of person-to-person violence and to protect the health, safety and welfare of persons who are on the premises of State-operated psychiatric hospitals and programs . . . "
Here, the evidence establishes that American Academy of Child and Adolescent Psychiatry (AACAP) recommends a guideline ratio of supervision of one staff member for every three patients. Ms. Russell-Miller testified to the staffing at Hutchings, specifically, on the night of June 20, 2011. Ms. Russell- Miller indicated that the adolescent patients are divided into three groups, with one aide assigned specifically to each group. There is at least one "floating" staff member who serves to address emergent issues and a registered nurse (RN) on duty. Additionally, there would be a recreation therapist, an on-call doctor, a nurse administrator and another nurse - on June 20, 14 staff members in all for 26 patients (9 children and 17 adolescents). The ratios of staff to patients were, as Dr. Singerman agreed, more than acceptable.
The difficulty here was the placement and availability of staff. Clearly, the potential need for an urgent response was absolutely foreseeable. Ms. Russell-Miller testified, as did Claimant, that the alarms to alert others that assistance was needed went off at least daily since these adolescents had "eminent mental health needs." Placing seven of these adolescents in a room with a petite aide, separated from any assistance by at least two locked doors was "risky," as acknowledged by even Defendant's expert. Defendant could not place the location of the other staff at the time of this assault in close proximity to this dayroom, and the evidence established that no one responded before Claimant was injured - whether that was due to the aide failing to engage the alarm, or staff not responding. No specific time frame was established for the time that transpired between Jonathan's assault on Brittany and his assault on Claimant. Yet, the evidence established at least a few minutes would have transpired. Jonathan was standing when Brittany went over to him, and he pushed her across the room, then ran down a hall yelling and banging on the doors for some period of time, with time to return, while the aide was trying to move all of the other adolescents into the stairwell, to try and strike Claimant. Claimant ducked and turned and ran down the other hallway where Jonathan followed and again tried to hit her. She then ran back into the dayroom where the aide closed the door which immediately locked.
Trial Transcript II, p. 171.
Trial Transcript III, pp. 261-262. --------
Although the Court finds that the placement of one aide with these seven mentally unstable adolescent patients in a room separate from the immediate access of other staff presented a foreseeable risk of potential harm, under these facts the State cannot be held liable.
Although the presence of another staff member may have helped to de-escalate Jonathan before Claimant was injured, or possibly remove or restrain him, it is pure speculation to say that another aide present or responding would have prevented this assault. Jonathan was a large, fit adolescent in the ravage of an outburst. Before Claimant was injured, the aide had managed to get the patients to what would seem to be relative safety - but Jonathan broke in through the locked steel door. The Court cannot find that the presence of one other aide in the immediate area could have prevented this assault, and Claimant did not establish that there was time for the external safety officers to respond in time to prevent her injuries. As a result, Claimant has not established the State's liability.
Accordingly, based upon the foregoing the claim must be DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
July 13, 2018
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims