Opinion
# 2015-048-537 Claim No. 121050
05-14-2015
DAVID CREO, as Administrator of the Estate of V.C., Deceased, and P.T., Individually v. THE STATE OF NEW YORK
KRAMER, DILLOF, LIVINGSTON & MOORE By: Judith A. Livingston, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq. Assistant Attorney General
Synopsis
In an action alleging medical malpractice and seeking damages for the conscious pain and suffering and wrongful death as a result of decedent's suicide while she was under the care of the St. Lawrence Psychiatric Center, the Court found the State liable and awarded damages in the total amount of $5,791,734.00.
Case information
| UID: | 2015-048-537 |
| Claimant(s): | DAVID CREO, as Administrator of the Estate of V.C., Deceased, and P.T., Individually |
| Claimant short name: | CREO |
| Footnote (claimant name) : | The Court has sua sponte amended the caption to reflect a fictitious name for the decedent and her husband. |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121050 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | KRAMER, DILLOF, LIVINGSTON & MOORE By: Judith A. Livingston, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 14, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant David Creo, as Administrator of the Estate of V.C., deceased, commenced this action to recover damages for the conscious pain and suffering of V.C. and her wrongful death allegedly caused by Defendant's negligent medical care and treatment while she was a patient at the St. Lawrence Psychiatric Center in Ogdensburg, New York. Claimant P.T. commenced a derivative cause of action seeking damages for loss of services. A plenary trial in this matter was held on February 25-27, 2014 at the Court of Claims in Utica, New York, at which six witnesses testified: Dr. Malika T. Ismaily, M.D. (treating psychiatrist at St. Lawrence Psychiatric Center); Dr. Scott Bienenfeld, M.D. (practicing psychiatrist called by Claimant as an expert witness); Dr. Lawrence W. Shields, M.D. (clinical neurologist called by Claimant as an expert witness); Mr. P.T. (V.C.'s husband); Ms. T.C. (V.C.'s daughter); and Mr. J.S. (V.C.'s son). The preponderance of the credible evidence demonstrates that Claimant established its claims of medical malpractice and wrongful death.
The Claim, filed March 16, 2012, also contained a fourth cause of action for the lack of informed consent, and a fifth cause of action for the negligent hiring of or granting of privileges to medical staff. However, those causes of action were withdrawn prior to trial.
The children of V.C. are referred to in this decision as T.C. and J.S. for privacy reasons.
V.C. was born in 1959 and graduated high school in 1977 on Long Island. After earning a master of science degree in special education from Adelphi University in 1982, she worked as a special education teacher. She married her first husband in 1987, and they had a son, J.S., born in 1991. They divorced in 1995. In 1998, P.T., who V.C. met in 1978 when she was in college, moved into the home V.C. shared with J.S. on Long Island. V.C. started a new career as a freelance court reporter in early 2000, and was hired by the Unified Court System of the State of New York. In 2002, V.C. adopted her daughter, T.C., from the People's Republic of China. She and P.T. were married in 2004. P.T. testified that V.C. was a great mother who was close to and loved her children. The family spent a lot of time together, and V.C. would attend her children's many after school activities and, often, take them to the beach.
According to P.T., V.C. had alcohol, drug and food addictions in her past, but overcame them. She also struggled with mental health issues and drug addictions associated with treatment of her mental health issues. According to her employment records at the Unified Court System, V.C. received treatment at The Zucker Hillside Hospital on Long Island in November, 2008, and was granted both medical and discretionary employment leaves. Later, she was treated at Nassau County Medical Center, and resigned her position with the Unified Court System effective February 5, 2009. After V.C. lost her health insurance, she was unable to obtain certain medications, and unable to stay in control of her mental health issues. P.T. left his job as an interstate tractor-trailer driver to take care of V.C. and T.C., and J.S. went to live with his father. Facing financial challenges, P.T., V.C. and T.C. went to stay with P.T.'s brother in North Carolina, where V.C. sought psychiatric care. When V.C. realized she was not able to get back on her feet, she decided it was best for T.C. to live with V.C.'s sister in New York City. According to P.T., this exacerbated V.C.'s depression and, not satisfied with the care V.C. was receiving, she and P.T. moved to P.T.'s hometown of Ogdensburg, where she was immediately hospitalized.
On June 12, 2010, V.C. reported to the emergency room at Claxton-Hepburn Medical Center (Claxton-Hepburn) in Ogdensburg, New York. According to a report of her medical history and physical examination upon admission, she complained of "depression, suicidal ideations and cocaine abuse" (Claimant's Exhibit 4 at 0010). That report indicates that V.C.'s parents both committed suicide, one at age 42 and the other at age 50. She was admitted to the Claxton-Hepburn psychiatric unit on June 12, 2010, "because of increasing depression with suicidal thoughts" (Claimant's Exhibit 4 at 0008). According to the psychiatric assessment undertaken on June 13, 2010,
While there was very little witness testimony regarding this particular hospitalization, the Court reviewed many hundreds of pages of medical records admitted into evidence on stipulation of the Parties.
Claimant's Exhibits 3, 3-A, 4, and 4-A, consisting of V.C.'s medical records at Claxton-Hepburn and St. Lawrence Psychiatric Center, are each separately bates stamped. Though bates stamped, the Court notes that the exhibits were not chronological and contained multiple copies of numerous records, making it unnecessarily time consuming to review and to analyze.
She has a history of two previous suicide attempts and has made suicide threats in the past. She has overdosed on medications and she has had quite a few psychiatric hospitalizations. She has been hospitalized for depression a few times . . . and at one time went to detox and then an inpatient rehab program
(Claimant's Exhibit 4 at 0008). V.C. rated herself on a suicide risk assessment form, using a scale of 0 to 10, with 0 being lowest risk and 10 being highest risk, from June 13, 2010 through June 28, 2010. While she rated herself as 1 (low risk) on June 14, she rated herself as 0 (lowest risk) on every other assessment through June 28, 2010. Her progress notes of June 14, 2010 and June 15, 2010 state that, while she reports no longer struggling with suicidal thoughts, she appeared to interviewers as sad, depressed and tearful, and reported "excessive anxiety" (Claimant's Exhibit 4 at 0204-0206). Following implementation of her treatment plan of individual counseling, therapy and medication, she was accepted into an inpatient rehabilitation program at the St. Lawrence Addiction Treatment Center, known as Hamilton Hall and operated by the New York State Office of Alcoholism & Substance Abuse Services (OASAS). Her discharge summary of June 28, 2010 from the psychiatric unit at Claxton-Hepburn provides that
During her hospital stay, she was never a behavior or management problem. She admitted having mood swings and her mind seems to be overworking all the time. With medication, she continued to improve. At the time she was released to go to rehab, she denied suicidal and homicidal ideas
(Claimant's Exhibit 4 at 0005). On the second day at Hamilton Hall, V.C. expressed ideas of suicide and was re-admitted to the psychiatric unit at Claxton-Hepburn on June 30, 2010 (see Claimant's Exhibit 4 at 0235). Her re-admission note included a "diagnosis of Mood Disorder . . . Close observation status" (Claimant's Exhibit 4 at 0378). V.C. rated herself a 5 (moderate risk) on the suicide assessment form, told the treatment team that she became anxious, and was experiencing drug withdrawal symptoms. The treatment team concluded that she was taking excess medications and directed her to stop doing so in order for them to adjust her medications properly. They noted that "she has no insight into her drug addiction and no insight into her reasons for needing inpatient rehab" (Claimant's Exhibit 4 at 0333). On July 9, 2010, her admission status was changed to involuntary. With medication adjustments and a safe environment, V.C.'s condition began to improve slightly. On July 13, 2010, her self rating on the suicide assessment form dropped to a consistent 3 (between low and moderate risk), although she continued to complain of anxiety and depression. Rather than transfer to an addiction treatment center, V.C. and her treatment team decided she should receive long-term psychiatric care at the St. Lawrence Psychiatric Center, in Ogdensburg, where she transferred on July 20, 2010. Her medication profile upon discharge included Buspirone and Diazepam for anxiety; Cymbalta for depression; Trazodone for sleep; and Seroquel, Depakote, and Neurontin for mental health (see Claimant's Exhibit 4 at 0364-0365). Her psychiatric transfer summary report lists her diagnosis as follows:
AXIS I: Mood disorder, bipolar type, polysubstance abuse
AXIS II: Personality disorder
AXIS III: Status post gastric operation in 2005 for morbid obesity, status post cesarian section
AXIS IV: Polysubstance abuse
AXIS V: GAF on transfer 30-35
(Claimant's Exhibit 4 at 0519). The report lists her condition as "[s]lightly improved," and her prognosis as "[f]air," stating, "she has been complaining consistently of anxiety and depression. She still has some fleeting suicidal thoughts but much less at present. . .[s]he has improved to a certain degree but not enough that she could be discharged back to the community" (Claimant's Exhibit 4 at 0520).
The Inpatient Screening Admission Note-Psychiatric Evaluation Part II prepared at St. Lawrence Psychiatric Center contains information similar to that recorded in the medical records at Claxton-Hepburn. Her AXIS I diagnoses there was "Bipolar I Disorder, Most Recent Episode Depressed, Unspecified" and "Polysubstance Dependence" (Claimant's Exhibit 3 at 0046). The psychiatrist recommended admission to Ward 093, psychological testing and individual counseling, and ward restrictions. However, she was given full building privileges on July 21, 2010. A Core Evaluation - Inpatient Part II report, dated July 22, 2010, states that V.C. reported that she is considering inpatient substance abuse programs or supported residences following discharge, is interested in getting back to work, and desires to repair her relationships with family, especially her children. That report contains treatment recommendations stating,
Her AXIS II diagnosis was Borderline Personality Disorder. However, a Progress Note - Single Detail, dated August 19, 2010, states that "there have been no behaviors observed since her admission that support this diagnosis" (Claimant's Exhibit 3 at 0520).
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[V.C.] will attend and participate in programs, therapies, and activities (Self Confidence, Women's Group Therapy, MICA, Low Impact Exercise, Managing Leisure Time, Knowing and Understanding Your Diagnosis, Interpersonal Relations, Personality Exploration) to educate her regarding her illness and recovery needs, to promote insight into her problems, and to improve coping skills to prepare for a successful discharge.
(Claimant's Exhibit 3 at 0068).
In short time, V.C. responded well to her treatment, demonstrated by numerous progress notes in her medical records. On July 26, 2010, she was given limited grounds privileges and off-grounds privileges with staff for programs. Her Treatment Plan Review report, dated August 19, 2010, states,
PSYCHIATRY: [V.C.] presents as alert and oriented to person, place and time. She reports great benefit from SLPC and is robustly responding to treatment including stabilizing withdrawal from substances. We will pursue inpatient rehabilitation when fully stabilized and ready for discharge. . .
NURSING: . . .[V.C.] denies being suicide intent [sic] and is future oriented. She has established goal of being able to work in the community again within a year after completing rehab program . . . [V.C.] is also request[ing] as of this writing time to be taken off Valium in preparation of being discharged and prepared for drug rehab program . . .
REHAB: Good progress. . . [V.C.] has made good progress in focusing on her goals, which are centered around staying sober.
(Claimant's Exhibit 3 at 0174). On August 23, 2010, V.C.'s status at St. Lawrence Psychiatric Center was changed from involuntary to voluntary. Her Discharge Summary/Service Plan-Part I report states:
By the beginning of September, V.C. was ready for discharge and was in agreement to be discharged to McPike Addictions [sic] Treatment Center in Utica, New York as she felt that McPike was a better option for her due to it being a dual diagnosis program. Arrangements were made for her discharge and she was discharged on 09/23/2010 in stable condition. . .
PROGNOSIS: Fair provided she follows through with the treatment recommendations and remains medication compliant.
(Claimant's Exhibit 3 at 0458). However, her medical records document that V.C. had some initial reservations about going to the McPike Addiction Treatment Center (McPike) operated by OASAS. On September 23, 2010, at 10:00 a.m., V.C. was noted to be in high spirits when she was discharged and transported to McPike.
Her admission that day to McPike was voluntary and with no legal mandate. During admission, V.C. stated that "one-on-one therapy with someone she can trust is necessary to help her get through the program," and that she "wants to find employment and support" to help her "stay sober" (Claimant's Exhibit 3 at 0433). Within four days at the program, V.C. reported that her anxiety was increasing and that she did not think she was ready for the group counseling. On September 28, 2010, she left the facility against clinical advice. The discharge summary states "Treatment Not Completed: no treatment goals met . . . V.C. was discharged in stable medical and psychiatric health" (Claimant's Exhibit 3 at 0433).
There is virtually no evidence in the record describing V.C.'s condition over the next six months, until March 8, 2011, when she presented herself again at Claxton-Hepburn with suicidal thoughts, depression and anxiety. On that date, staff performed a suicide risk assessment and V.C. scored a 3 on a scale of 1 to 5, with 1 being low risk and 5 being high risk (Claimant's Exhibit 4A at 0078). Consequently, she was considered a moderate risk for suicide and "admitted as an emergency-status patient . . . for persons with mental illness" on March 9, 2011, pursuant to Mental Hygiene Law § 9.39 (Claimant's Exhibit 4A at 0005). The Psychiatric Assessment report prepared on March 10, 2011 contains a slightly different diagnosis than that made during the prior admission:
AXIS I: Major depressive disorder, recurrent, most recent episode severe without psychotic features. Polysubstance dependence in early sustained remission.
AXIS II: Personality disorder by history.
AXIS III: Nonacute.
AXIS IV: Severe. Lack of primary social support. Financial stressors.
AXIS V: GAF score upon admission 25
(Claimant's Exhibit 4A at 0052 and 0053). That day, V.C. rated herself a 7 out of 10 (moderate to high risk) on the Suicide Risk Assessment Form, and rated herself a 6 on March 12, 2011, and a 4 on March 13, 2011. On March 13, 2011, V.C.'s emergency status was converted to involuntary status, pursuant to Mental Hygiene Law § 9.27. While she again rated herself a 4 (moderate risk) on the Suicide Risk Assessment Form on March 14, 2011, she rated herself a 0 (low risk) from March 15, 2011 through March 24, 2011.
This change in her condition, which is similar to her improvement in the prior hospitalization at Claxton-Hepburn, is also captured in several Progress Notes in her medical records. A Progress Note dated March 14, 2011, states:
Patient states she is feeling somewhat better. She still struggles with excessive anxiety and hopelessness. At times, she wishes she were dead . . . states that she is not actively suicidal but that she feels overwhelmed and that she sometimes thinks she cannot go on like this . . . She appears anxious. Thought process is organized. No evidence of thought disorder, no evidence of psychosis
(Claimant's Exhibit 4A at 0310). A Progress Noted dated March 23, 2011, states:
The patient states she is feeling better. She reports improved mood. She still complains of anxiety however she thinks that the anxiety has improved significantly during this hospitalization. She rates herself on an anxiety scale (where 0 is no anxiety and 10 is the worst she has ever felt), as 10 out of 10 on admission where as [sic] today she rates herself as a 4 out of 10. She reports good sleep, good appetite. Denies any suicidal or homicidal thoughts
(Claimant's Exhibit 4A at 0306). However, her condition began to worsen the next day. The Progress Note dated March 24, 2011, states:
Patient complains of excessive anxiety. She appears to be very distressed. . . She also mentioned that she thought vaguely of suicide because she finds it impossible to handle the anxiety. . . She denies active suicidal thoughts at the time of the interview but presents as hopeless, pessimistic and completely overwhelmed
(Claimant's Exhibit 4A at 0316). Her treatment plan included a reduction in the dose of clonazepam, a highly addictive benzodiazepine used to treat anxiety which the treatment team hoped to replace with other medicine. By March 20, 2011, her daily dose had been reduced from 4.0 milligrams to 1.0 milligrams. As a result of the March 24, 2011 assessment, her daily dose was brought back up to 2.0 milligrams. V.C. and her treatment team agreed that she should be transferred to St. Lawrence Psychiatric Center for long-term treatment. On March 26, 2011, V.C. rated herself a 2 out of 10 (low to moderate) on the Suicide Risk Assessment Form, and rated herself a 3 out of 10 (still low to moderate) on March 27 and 28, 2011. On March 28, 2011, staff prepared a Suicide Assessment Document in advance of her transfer and assessed a total of 4 points out of 14, which translates to a risk score of 1 out of 5, which is the lowest risk level.
The Psychiatric Transfer Summary prepared on March 28, 2011 states:
During the initial interview, patient complained of depressed mood, low energy, poor sleep, excessive anxiety and suicidal thoughts with a plan to slash her wrists. The patient reported depressive symptoms have been progressively increasing for the past month or so since she had been undergoing some medication changes. The patient reported she was stable for a few months on a combination of Cymbalta, Clonazepam, Trazodone, Invega, and Seroquel. However, patient reported due to the cost of the medications, she and her psychiatrist had decided to switch the medication. She was given samples of Risperidone after Invega was discontinued and then samples of Fanapt without any positive effect. She was started on Chlorpromazine 25 mgs po daily for about two months but she did not find any relief. Since the discontinuation of Seroquel, sleep had become a major problem and Trazodone alone did not help. Initially, patient reported that she has continued to take Clonazepam 2 mgs po BID but it seemed like Clonazepam no longer helped with anxiety. Reluctantly, on the day of discharge, she did disclose that she had been abusing Clonazepam prior to this admission. She was taking more that [sic] was prescribed and when she ran out of this medication, she had started using Xanax given to her by a friend. When asked about the quantity of Xanax taken in a day she stated 'I used to take them like candies.'
(Claimant's Exhibit 4A at 0049). The Psychiatric Transfer Summary further describes the course of treatment provided at Claxton-Hepburn, including adjustments to the various medications. It describes her hospitalization at Claxton-Hepburn as follows:
HOSPITAL COURSE: . . . During this hospitalization, she experienced a brief period of improvement. However, that was not sustained. Gradually, she reported an increase in anxiety symptoms, then she disclosed that she had been abusing Benzos prior to this admission and felt that the symptoms of excessive anxiety that she was experiencing were part of her Benzodiazepine withdrawal. She continued to complain of depressed mood, guilty feelings, and suicidal thoughts with a plan to slash her wrist. She felt safe in the hospital though and did not act out on her thoughts . . .
MENTAL STATUS EXAM: . . . Thought process was organized. No evidence of thought disorder. No evidence of psychosis. Denied active suicidal thoughts but presented as quite pessimistic and hopeless and wished she were dead. Insight and judgment were poor. Impulse control was good at the time of the interview . . .
DISCHARGE MEDICATION: Please see discharge medication sheet. Of note is the fact that Clonazepam was tapered gradually during this hospitalization. On the day of discharge, it was discussed with the possibility of switching her to a Benzodiazepine with longer half life like Diazepam to make the process of tapering down easier.
On March 28, 2011 she was transferred to St. Lawrence Psychiatric Center, where a Suicide Probability Screening form was completed at 2:35 p.m. The report contains a list of 16 factors for the evaluator to use in assessing the patient. The evaluator is to determine whether each of the sixteen factors are present or absent for the patient. If the evaluator determines that the factor is present, a checkmark is placed in the box next to that factor under the "YES" column. Conversely, if the factor is not present, a checkmark is placed in the "NO" box. There is also space next to each factor for the evaluator to add comments or observations. These factors include whether the patient has suicidal thoughts, has previously attempted suicide, or feels there is nothing to look forward to. According to the instructions on the form, if seven or more of the factors are present, the evaluator is to notify the supervising nurse and the physician, and also "place red dot on record" (Claimant's Exhibit 3A at 0079). V.C.'s evaluator recorded 10 factors present. Dr. Malika Ismaily, M.D., a psychiatrist on staff at St. Lawrence Psychiatric Center, reviewed the Suicide Probability Screening form 15 minutes later, and by 3:30 p.m., completed an Initial Risk Analysis form in which Dr. Ismaily determined and recorded V.C.'s risk for suicidal behavior to be "Moderate," and risk for self abuse/mutilation to be "Low" (Claimant's Exhibit 3A at 0081). Dr. Ismaily recommended the most restrictive facility privilege for V.C., that of "Ward Restrictions," reasoning that "Patient reports being flat, anxious, depressed and fleeting thoughts of suicide. She was thinking of slashing her wrist but denies any intent or plan but has still off and on thoughts" (Claimant's Exhibit 3A at 0082). Dr. Ismaily's recommendation was reviewed by the facility's Chief of Service, and reviewed and approved by the Clinical Director. Consequently, V.C. was admitted as an involuntary-status patient, restricted to Ward 094 with staff checks every 15 minutes, and prescribed medications for depression, mood stability, anxiety, and insomnia, among other things.
Staff progress notes entered on the morning of March 29, 2011, report that V.C. was feeling anxious and appeared frail, but had no thoughts of self-harm. Staff progress notes in the afternoon indicate that V.C. attended treatment programs throughout the day without incident, and had a good day, but that ward restrictions with checks every 15 minutes were continued. Staff progress notes entered that evening report that V.C. had an adequate appetite at dinner and offered no complaints.
In the morning of March 30, 2011, a staff member submitted a Risk Analysis Privilege Update form recommending a change in V.C.'s privileges from "Ward Restrictions" to "Building (specify as needed)" (Claimant's Exhibit 3A at 0083). While there are two blank lines on the form for a written explanation to support the change in privilege, under the heading "Rationale/Summary statement for update in risk determination:," the staff member completing the form provided no rationale. Instead, only the word "Building" is written there (Claimant's Exhibit 3A at 0083). Dr. Ismaily reviewed and approved the change that morning. A progress note entered by nursing staff at 1:06 p.m. reports:
[V.C.] currently denies any thoughts of self harm, has been actively attending programs and is participating in the RBU level system, following ward rules and routines. Her risk analysis was updated this morning and orders written to obtain building privileges, she is social with both staff and peers at this time.
(Claimant's Exhibit 3A at 0138). A progress note entered later that evening reports that "[V.C.] appears to be adjusting well to inpatient setting. Ate well at dinner. Interacting appropriately with staff and peers. Denies thoughts of harm to self or others. Will continue to monitor" (Claimant's Exhibit 3A at 0139). However, a morning progress note entered by staff on March 31, 2011 states that V.C. slept in, skipped breakfast, and was feeling anxious. An evening progress note reports that she "received initial decreased dose of Klonopin 0.5 MG PO at 4 PM" (Claimant's Exhibit 3A at 0140). There is no explanation in the medical records for the reduction in Klonopin.
A nursing staff progress note entered early on April 1, 2011 states that "[V.C.] reports this morning that she has been awake since 3 AM and is feeling anxious this morning. She goes to shower. After her shower, she goes to her room and skips breakfast" (Claimant's Exhibit 3A at 0142). There are no other progress note entries reporting on V.C.'s condition until after, tragically, she was found dead in the ward bathroom. Staff reported that "[V.C.] was discovered with her back towards the wall with a shoe lace around her neck hanging from the water adjustment knob in the shower" (Claimant's Exhibit 3A at 0145). The St. Lawrence County Coroner's Office Autopsy Report concluded that V.C. committed suicide by "[a]sphyxiation due to partial suspension hanging" (Claimant's Exhibit 2).
Dr. Scott Bienenfeld, M.D., completed medical school in Philadelphia in 1997, and completed a residency in general psychiatry at New York University from 1997 through 2001, and a fellowship in psychiatry at Albert Einstein University. Since his fellowship, he has maintained a private practice in psychiatry in New York City while also serving for various periods as an attending psychiatrist at Mountainside Hospital in Montclair, New Jersey; a director of an inpatient unit at Sing Sing Correctional Facility, in Ossining, New York; and the Medical Director at the New York Center for Living, an inpatient facility treating young adults and adolescents with substance abuse, disorders and underlying psychiatric problems. In addition to his private practice, Dr. Bienenfeld is currently running a program in Brooklyn, New York, treating adults suffering from substance abuse and psychiatric problems. Dr. Bienenfeld is licensed to practice medicine in New York State, has been board certified in general psychiatry since 2002, and board certified in psychiatry and the law since 2003. He is also certified by the American Society of Addiction Medicine and the American Board of Addiction Medicine, and he is a member of the Addiction Committee and a member of the Peer Review Committee of the American Academy of Psychiatry and the Law, a member of the American Medical Association, and a member of the American Psychiatric Association. Dr. Bienenfeld reviewed the records of V.C.'s medical care at St. Lawrence Psychiatric Center beginning with her admission on March 28, 2011, to her death on April 1, 2011. Dr. Bienenfeld testified that, based on his review of these medical records, it was his opinion with a reasonable degree of medical certainty, that "there were multiple departures from the standard of psychiatric and medical care" which were substantial contributing factors to V.C.'s pain and suffering and tragic death on April 1, 2011 (Transcript at 224-225).
Dr. Bienenfeld testified that, based upon his review of V.C.'s medical records, when she was admitted to St. Lawrence Psychiatric Center in March 2011, V.C. was
suffering and manifesting symptoms of . . . bipolar disorder as well as problems related to withdrawal from strong sedative medications, benzodiazepines, which she gave a very clear history of having abused not long before her admission, and . . . she was having struggles with anxiety, agitation, and things like that
(Transcript at 226). While there is nothing in the record that shows when V.C. was first diagnosed with the psychiatric illness of bipolar disorder, the record is clear that she did not exhibit any psychotic symptoms. According to Dr. Bienenfeld, bipolar disorder affects about one percent of the population, males and females equally, and
is a common and very severe form of a mood disorder where patients exhibits - - patients exhibit cycles between feeling very, very depressed, periods of relative normalcy, and then periods of what we call mania where they can have a lot of anxiety, agitation, racing thoughts, very high risk taking behavior, difficulties modulating their mood and things like that.
(Transcript at 226-227). Dr. Bienenfeld also testified that bipolar disorder is one among
chronic, relapsing, and remitting disorders, which mean they don't go away fully over a person's lifetime necessarily, but they are manifested by periods of relapse where the symptoms are prominent, and remission, where when they're treated well, people can actually live fairly normal lives during that period . . . Bipolar disorder is notable for being treated with mood stabilizer medications, and there are different kinds of medications that fall under that category.
(Transcript at 228). According to Dr. Bienenfeld, it is critical that a patient with bipolar disorder remain engaged with treatment providers so that if the patient experiences symptoms, they are treated quickly to achieve "a state of relative stability, and keep it that way as long as possible" (Transcript at 229).
Based upon his review of the records, Dr. Bienenfeld testified that V.C.
had maintained a period of stability out in the community. She was receiving outpatient care from a psychiatrist. She was on what we call a cocktail of medications, so more than one medication to maintain the different symptoms she was suffering from and it seems like she was doing pretty well. The records indicate that at some point she needed to change her medications, something having to do with insurance, or money where insurance wasn't covering certain meds that she was taking, and clearly, there was a decline and a change in her mental status. She was manifesting a lot more anxiety. She was having trouble functioning, and they were trying different kinds of medications . . .
(Transcript at 230). He pointed out that, while V.C. was receiving outpatient care and receiving medication, the medications were not working well and V.C. decided to self-medicate her anxiety by taking "a very powerful sedative medication called Xanax, which is highly addictive, very habit forming, and people get dependent on it quickly, but it really works fast to bring down symptoms of anxiety" (Transcript at 231). According to Dr. Bienenfeld, because V.C. was taking a very high dose of 20 milligrams per day of Xanax, she was "at risk of death from seizure, respiratory collapse," requiring "medically supervised detoxification" (Transcript at 232). Consequently, V.C. presented herself at Claxton-Hepburn Medical Center "clearly in a state of benzodiazepine withdrawal, and manifesting active symptoms of the bipolar disorder; a lot of anxiety, agitation, restlessness, all of that" (Transcript at 232).
According to Dr. Bienenfeld, the suicide risk screening performed by staff at St. Lawrence Psychiatric Center on admission indicates that V.C. was considered high risk for suicide. However, Dr. Bienenfeld testified that, even though V.C.'s Suicide Probability Screening noted that 10 out of 16 factors were present, justifying a high risk, it failed to consider the even greater increased risk for suicide posed by her benzodiazepine withdrawal. Rather than actively considering and treating that issue, "[t]hey completely missed the boat on that" (Transcript at 243). Dr. Bienenfeld testified that, because of V.C.'s acute state of withdrawal, St. Lawrence Psychiatric Center should not have tried to taper her off the medication. Rather, she required stabilization first, which might initially require increasing the dosage, and only after stabilization would it be safe to slowly reduce it in a medically supervised manner referred to as detoxification. Dr. Bienenfeld testified that, with a reasonable degree of medical certainty, the failure to properly identify and treat V.C.'s benzodiazepine withdrawal was a departure from good and accepted medical practice which was a substantial factor in causing her pain and suffering and death.
Furthermore, Dr. Bienenfeld testified that the reduction of the benzodiazepine Klonopin at St. Lawrence Psychiatric Center was dangerous because of V.C.'s withdrawal, and should have resulted in increased supervision, not less supervision. However, according to Dr. Bienenfeld, even without the tapering of Klonopin, there was nothing in the medical records to justify granting V.C. building privileges and access to items, like shoelaces, that could be used to harm herself. Accordingly, Dr. Bienenfeld opined that these actions of the St. Lawrence Psychiatric Center also constituted a departure from good and accepted medical practices and contributed to V.C.'s pain and suffering and death.
Finally, Dr. Bienenfeld gave his opinion that, based on V.C.'s high pre-morbid functioning, including her past personal, medical, and work histories, with the right mix of medication and continued abstinence from drug and alcohol abuse, her prognosis was good for a normal life expectancy, especially in light of the absence of psychotic symptoms.
Dr. Malika Ismaily, M.D. was the psychiatrist in charge of Ward 094 at the St. Lawrence Psychiatric Center when V.C. transferred there on March 28, 2011. Dr. Ismaily testified that V.C. transferred with the diagnosis of "major depressive disorder" . . . "without psychotic features" and "[b]ipolar 1 [d]isorder," and that V.C. was experiencing the depression phase of her bipolar disorder (Transcript at 57). According to Dr. Ismaily, V.C. was evaluated upon arrival and determined, based upon a Suicide Probability Screening form, to be at high risk for suicide. Nevertheless, Dr. Ismaily believed that V.C. had the desire, and was motivated, to get better and return to her family, especially to raise her daughter. Dr. Ismaily testified that she believed that V.C.'s prognosis was good because she had been relatively stable when she had access to a certain group of medications until she lost access to them for reasons relating to insurance or finances. Dr. Ismaily's belief was also based on V.C.'s history of overcoming past addiction to recreational drug use.
Dr. Ismaily testified that she believed that V.C.'s risk of suicide decreased immediately following her admission, but conceded that no subsequent Suicide Probability Screening form was completed. According to Dr. Ismaily, she decided to lift V.C.'s Ward restrictions based on her evaluation, but conceded that there is no such evaluation in the medical records. In addition, Dr. Ismaily conceded that no reasoning was set forth on the Risk Analysis Privilege Update form which was used to lift the Ward restrictions, even though the form required one, and that such omission was a departure from accepted medical practices. Furthermore, Dr. Ismaily conceded that staff at St. Lawrence Psychiatric Center failed to detect the abrasions on V.C.'s left wrist determined by the Coroner to be an "obvious attempt of suicide" (Transcript at 123), which also constituted a departure from good medical practice in light of the fact that V.C. had previously contemplated cutting her wrists. However, Dr. Ismaily testified that she believed V.C. did not want to commit suicide, but rather was suffering emotionally and was calling out for help. According to Dr. Ismaily, when V.C. did not receive attention for cutting her wrists, V.C. took the drastic step of attempting suicide in a public place with the hope that she finally get help. Consequently, and quite tragically, V.C. experienced "the worst, and the longest and the most agonizing type of hanging death" (Transcript at 136).
Dr. Ismaily testified that she knew that V.C. had excessively self-medicated with Xanax prior to her last admission to Claxton-Hepburn Medical Center, and would have been experiencing benzodiazepine withdrawal. Nevertheless, Dr. Ismaily agreed that "withdrawal from benzodiazepine in far lesser amounts than [V.C.] was on could take six months, if not longer" (Transcript at 160), and that patients should receive detoxification for that withdrawal. There is no explanation in the record for why St. Lawrence Psychiatric Center did not treat V.C.'s benzodiazepine withdrawal with medical detoxification. Inexplicably, Dr. Ismaily testified that she was not aware that V.C. was still suffering from benzodiazepine withdrawal. However, V.C. could not have been treated for the Xanax withdrawal at Claxton-Hepburn with medical detoxification because V.C. had not yet disclosed her Xanax abuse until the day of discharge from that facility. Moreover, despite Dr. Ismaily knowing about V.C.'s Xanax abuse, she did not confirm whether or not Claxton-Hepburn had initiated medical detoxification.
In any event, Dr. Ismaily agreed that cutting V.C.'s dosage of Klonopin would dramatically increase V.C.'s anxiety, and could cause her to become suicidal. As a result, Dr. Ismaily testified that a reduction in Klonopin for a patient experiencing benzodiazepine withdrawal requires "very close monitoring" (Transcript at 149). Dr. Ismaily initially testified that she was aware that when Claxton-Hepburn attempted to reduce Klonopin, V.C. experienced such severe anxiety that "chemical restraints" were required (Transcript at 150). Later in her testimony, however, she stated that she was not aware that Claxton-Hepburn had reduced, then restored, V.C.'s Klonopin dosage.
Furthermore, even though Dr. Ismaily testified that she "did not see her obvious signs of anxiety" (Transcript at 151), when Dr. Ismaily evaluated V.C. on March 28, 2011, Dr. Ismaily reported that V.C.'s "affect is flat mood is low and reports anxiety still has suicidal thoughts but no plan and agrees to talk to staff" (Claimant's Exhibit 3A at 0040). In her Inpatient Screening Admission Note, dated March 29, 2011, Dr. Ismaily states that V.C. "was overly focused on medication, specifically benzodiazepines and medications in that category saying that she 'is very anxious and unable to sleep' " (Claimant's Exhibit 3A at 0050). And, even though V.C.'s Treatment Plan stated the reason for her hospital admission was "[s]uicidal with plan to slash wrists. Depressed. Hx of polysubstance, claims to be sober since June 2010 . 'My anxiety withdrawing from Klonopin and inability to sleep' " (Claimant's Exhibit 3A at 0089), her treatment plan did not include benzodiazepine detoxification. More importantly, staff assigned to V.C. observed her feeling more anxious on March 31, 2011 and April 1, 2011. Dr. Ismaily conceded that upon review of the staff progress notes, V.C.'s condition appeared to be deteriorating and should have resulted in closer observations and action to control the increasing anxiety but, sadly, nothing was done. Dr. Ismaily allowed that she should have evaluated V.C. after reducing her Klonopin dosage on March 31, 2011, but did not, and also should have placed greater restrictions on V.C., possibly returning her to Ward restrictions, but did not.
On cross-examination, Dr. Ismaily stated that she lifted V.C.'s Ward restrictions because she thought V.C. would benefit from increased socialization. She also stated that she reduced V.C.'s Klonopin dosage because that was what was being done at Claxton-Hepburn and she wanted to do the same at St. Lawrence Psychiatric Center. However, she did not testify that either of those actions were consistent with good and acceptable medical practices.
Lawrence W. Shields, M.D., is a physician licensed to practice medicine in New York. He graduated from Princeton University and attended New York University Medical School. Following his internship, he served as a general medical officer and then chief medical officer while in military service. Following military service, Dr. Shields was a resident in neurology at Mount Sinai Hospital and then ran the adult and pediatric neurology service at Brookdale Hospital. He also maintained a private clinical neurology practice following his military service, and became board-certified in neurology. Dr. Shields has served as the director of the neurology unit at New York Eye and Ear Hospital, and the chief of the non-private neurology consulting service at Long Island College Hospital, and as a consultant to the Brooklyn District Attorney. Dr. Shields reviewed V.C.'s medical records at St. Lawrence Psychiatric Center, summaries of medical records at Claxton-Hepburn Medical Center, the deposition of Dr. Ismaily, and the autopsy report.
Dr. Shields testified that V.C. died of asphyxiation resulting from a cutoff of air flow and therefore oxygen deprivation, and not a cutoff of blood flow to the brain. According to Dr. Shields, with a reasonable degree of medical certainty, "the only system that showed injury on the autopsy was the airway system, the respiratory system . . . this was a death by exclusion of oxygen via the airway" (Transcript at 359). Dr. Shields further testified that, based on his calculations and with a reasonable degree of medical certainty, V.C. would have remained conscious for "[m]inimally six or seven minutes" (Transcript at 370). During this time period, V.C. would have been in extreme pain and emotional suffering characterized by "the sense of airlessness . . . and the frightening aspect . . . of impending great bodily harm and death" (Transcript at 371). Moreover, prior to losing consciousness, she would have been too weak or confused by the oxygen deprivation to formulate a plan to save herself, and her airway too obstructed for her to call for help.
To succeed in this medical malpractice action, Claimant must establish by a preponderance of the credible evidence "a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage" (Mazella v Beals, 122 AD3d 1358, 1363 [4th Dept 2014], lv granted 25 NY3d 901 [2015] [internal quotation marks and citations omitted]; see also Schrempf v State of New York, 66 NY2d 289, 294 [1985]). While a physician is not required to achieve success in every case and cannot be held liable for mere errors of professional judgment (see Schrempf v State of New York, 66 NY2d at 295), "a decision that is without proper medical foundation, that is, one which is not the product of a careful examination, is not to be legally insulated as a professional medical judgment . . . Stated otherwise, physicians are not liable for mistakes in professional judgment, provided that they do what they think best after careful examination * * * However, liability can ensue if their judgment is not based upon intelligence and thus there is a failure to exercise any professional judgment" (Bell v New York City Health & Hosps. Corp., 90 AD2d 270, 280-281 [2d Dept1982] [internal quotation marks and citations omitted]). "Because psychiatry is not an exact science, decisions with respect to the proper course of treatment often involve a calculated risk and disagreement among experts as to whether the risk was warranted or in accord with accepted procedures" (Schrempf v State of New York, 66 NY2d at 295-296).
In light of V.C.'s history of mental instability, her depression, her drug withdrawal, her high suicide risk upon admission to St. Lawrence Psychiatric Center, and Dr. Ismaily's own testimony that the accepted medical standards of care would require that a high risk individual be restricted and monitored, together with the lack of evidence that V.C. was properly evaluated prior to having her restrictions removed which, by Dr. Ismaily's own testimony, would constitute a violation of accepted medical standards of care, the Court finds that Defendant's determination to remove V.C.'s restrictions and monitoring was not based on a professional medical judgment. Rather, upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has established, by a preponderance of the credible evidence, that Defendant deviated from accepted medical standards, and that such deviation was a proximate cause of V.C.'s death.
In first addressing the cause of action for V.C.'s conscious pain and suffering, "a personal injury action on behalf of the deceased under EPTL 11-3.2 (b) seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate" (Heslin v County of Greene, 14 NY3d 67, 76-77 [2010] [citations omitted]). To recover, Claimant must demonstrate, through direct or circumstantial evidence, some level of awareness for some period of time following an incident (see Cummins v County of Onondaga, 84 NY2d 322 [1994]). The record is clear that V.C. asphyxiated. Dr. Ismaily agreed that asphyxiation is one of the most painful, prolonged, and agonizing ways to die. Dr. Shields testified that V.C. would have been frightened, aware, consciously struggling and unable to cry for help for six to seven minutes before she lost consciousness. This six to seven minute time period warrants an award for conscious pain and suffering. Accordingly, the Court hereby awards David Creo, as Administrator of the Estate of V.C., the sum of $2,500,000.00 as reasonable compensation for decedent's conscious pain and suffering (see Maracallo v Board of Educ. of City of N.Y., 21 AD3d 318 [1st Dept 2005]; Rivera v City of New York, 80 AD3d 595, 915 [2d Dept 2011]).
As part of a personal injury action, a derivative cause of action may be permitted to reflect loss of consortium during the period of a decedent's conscious pain and suffering, prior to her death (see Liff v Schildkrout, 49 NY2d 622, 632-633 [1980]). In this matter, V.C. was hospitalized prior to Defendant's malpractice, and there is no indication that absent that malpractice, she would have returned home prior to the time of her death (see Richardson v Lutheran Hosp. of Brooklyn, 70 AD2d 933, 934 [2d Dept 1979]). Thus, the Court is constrained to make no award to Claimant P.T. for loss of consortium.
In next assessing damages based on decedent's wrongful death, such an "action belongs to the decedent's distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act (see EPTL 5-4.3)"(Heslin v County of Greene, 14 NY3d at 76-77). Damages in a wrongful death matter, must be "measured by the effect of the wrongful act on the distributees - the pecuniary loss suffered by the individual distributees as a result of decedent's death" (id. at 75). "The proceeds are paid directly to the distributees in the proportions directed by the court, determined by their respective monetary injuries (see EPTL 5-4.4)" (Heslin v County of Greene, 14 NY3d at 76-77).
"There are four elements of compensable loss encompassed by the general term 'pecuniary loss': (1) decedent's loss of earnings; (2) loss of services each survivor may have received from decedent; (3) loss of parental guidance from decedent; and (4) the possibility of inheritance from decedent" (Huthmacher v Dunlop Tire Corp., 309 AD2d 1175, 1176 [4th Dept 2003] [citations omitted]). In other words, recovery in a wrongful death action is restricted to injuries measurable in money damages and does not include recovery for loss of consortium, which, as is relevant to this matter, includes grief, loss of society, or affection (see Liff v Schildkrout, 49 NY2d at 633). For a deceased wage earner, 'pecuniary injuries' may be calculated through, among other things, an analysis of the decedent's present and future earning potential (see Gonzalez v New York City Hous. Auth., 77 NY2d 663, 668 [1991]). "In the case of a decedent who was not a wage earner, 'pecuniary injuries' may be calculated, in part, from the increased expenditures required to continue the services she provided, as well as the compensable losses of a personal nature, such as loss of guidance" (id). The pecuniary loss calculations are based on a decedent's age, character, earning capacity, life expectancy, and the circumstances of the distributees (see Klos v New York City Tr. Auth., 240 AD2d 635, 637-638 [2d Dept 1997], lv dismissed 91 NY2d 846 [1997]).
At the time of her death, V.C. was unemployed, and had not been employed since 2009. While the Court finds it virtually impossible to surmise that, had she been given the correct combination of medications, at some time in the future, V.C. would have been able to successfully and consistently reenter the work force, Claimant is not seeking those damages. Instead, Claimant seeks damages for, among other things, the loss of parental guidance and the loss of household services based on Dr. Bienenfeld's testimony that V.C. had a good prognosis for recovery and for returning to a functioning life with her family, and based on the testimony regarding V.C.'s relationship with her children.
Loss of household services is valued by determining the cost of replacing decedent's services (see Klos v New York City Tr. Auth., 240 AD2d at 637). The record reflects that before V.C. became sick, she maintained the home, prepared the meals, did the shopping, and was active in transporting the children to their respective activities. As evidence of the cost of replacing those services, the report of Claimant's economic expert - Les Seplaki, Ph.D. - was admitted into evidence without objection. Defendant submitted no rebuttal evidence to this expert evidence, but argued that such damages are not appropriate since the decedent's husband has not expended money for those services. However, the lack of proof of expenditures for past loss of household services does not preclude an award for the loss of household services (see e.g.
Phelan v State of New York, 11 Misc3d 151, 170 [Ct Cl 2005]). Accordingly, the Court accepts Claimant's evidence and concludes that David Creo, as Administrator of the Estate of V.C., is entitled to an award of $94,678.00 for past loss of household services, together with an award of $744,656.00 for future loss of household services. The Court also awards David Creo, as Administrator of the Estate of V.C., the amount of $2,400.00 - the undisputed amount of funeral expenses incurred.
Claimant also seeks damages for the loss of care, guidance, and nurturing which would have been provided by decedent to her two children. The testimony showed that V.C. had a strong relationship with both of her children and, prior to her hospitalization, spent much time with the children. P.T. testified that V.C. was protective of her children, and was very involved in their lives. She read to them, helped them with homework, took them to the beach, shopping, had movie nights at home, and attended extracurricular activities. V.C. was a confidant to her children, and source of encouragement, advice, and love. She was a religious woman, who instilled those values in her children. By J.S.'s testimony, V.C. inspired him to make good decisions, to treat others with compassion and generosity, to be responsible, to follow through with and be accountable for his actions and, importantly, to laugh. T.C. was still in her adolescence and depended a great deal upon her mother when she died. T.C. has fond memories of time spent with her mother, including going out for ice cream, playing on the swings, and eating crab legs. Unlike J.S., T.C. will not have the benefit of her mother's guidance during the most formative years of her life. And, while T.C. has been living with her aunt since 2008, the Court cannot conclude that V.C.'s absence in her daughter's life will go unnoticed, and that V.C. would not have provided T.C. with guidance and nurturing similar to what she gave to J.S. J.S. testified that his mother gave him advice about his career and his relationships. And, while J.S. is older and emancipated, he testified that his mother's counsel will be greatly missed. Thus, the record establishes that both children suffered a significant loss of parental guidance, nurturing, care, and moral and intellectual training as a result of V.C.'s death, and will continue in the future to suffer the loss of their mother's care and guidance. Accordingly, in noting that no amount of money can replace their mother, for past loss of parental care and guidance, the Court awards David Creo, as Administrator of the Estate of V.C., the sum of $ 500,000.00 for T.C., and the sum of $ 300,000.00 for J.S. For future loss of parental care and guidance, the Court awards David Creo, as Administrator of the Estate of V.C., the sum of $ 1,500,000.00 for T.C., and the sum of $ 150,000.00 for J.S.
In sum, the Court awards damages recapitulated as follows:
CONSCIOUS PAIN AND SUFFERING:
Past Damages:
Pain and suffering endured between the moment of
physical injury to the moment of V.C.'s death
$ 2,500,000.00
WRONGFUL DEATH:
Past Damages:
1) Funeral Expenses: $ 2,400.00
2) Loss of Guidance: J.S. $ 300,000.00
T.C. $ 500,000.00
3) Loss of Household Services: $ 94,678.00
TOTAL PAST WRONGFUL DEATH DAMAGES: $ 897,078.00
Future Damages:
1) Loss of Guidance: J.S. $ 150,000.00
T.C. $ 1,500,000.00
2) Loss of Household Services: $ 744,656.00
TOTAL FUTURE WRONGFUL DEATH DAMAGES: $ 2,394,656.00
The amount awarded with respect to the conscious pain and suffering aspect of this Claim shall carry interest from May 14, 2015. The amount awarded with respect to the wrongful death aspect of the Claim shall carry interest from April 1, 2011 in accordance with EPTL 5-4.3.
Any filing fee paid by Claimant shall be recovered pursuant to § 11-a (2) of the Court of Claims Act.
All trial motions not heretofore decided are now deemed denied.
Let judgment be entered accordingly.
May 14, 2015
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims