Opinion
113362.
Decided April 7, 2011.
Claimant's attorney: RUTBERG ASSOCIATES, P.C., By:Richard Greenblatt, Esq.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, By:J. Gardner Ryan, Assistant Attorney General.
Claimant seeks damages for the pain, suffering and injuries she sustained on May 21, 2005, when she was a resident at the Hudson River Psychiatric Center (Hudson River), and slipped and fell in the shower. After a trial on the issue of liability, this Court determined that defendant is 100 percent liable for claimant's fall and that defendant is entitled to recover on its counterclaim for the cost of services rendered by defendant in its facilities from May 3, 2005 through April 30, 2007, which were not covered by Medicare and were unrelated to claimant's fall ( Randone v State of New York, Ct Cl, January 29, 2010, Ruderman, J., Claim No. 113362). A trial on the amount of damages to be awarded on the claim and defendant's counterclaim was held on November 8, 2010.
The Claim
Claimant testified that after her fall in the shower, she experienced a level of pain in her left leg and hip that she had never previously felt. She screamed for help and Melissa Cooper, a therapy aide, responded to claimant. Cooper then summoned Nurse Emane Halloway.
Halloway's deposition testimony was received into evidence. She testified that when she reached claimant, she was crying. In the incident report, Halloway reported claimant's pain level as 10 out of 10 (Ex. 9, p 40). Halloway contacted Dr. Stephanie Samuels who arrived within approximately 10 minutes after claimant's fall.
Claimant testified that as she waited for the doctor to arrive, she remained on the floor, naked, wet and in pain. After Samuels examined claimant, she was transported by ambulance to St. Francis Hospital (St. Francis) in Poughkeepsie. Claimant recalled being in a great deal of pain when she was placed on a stretcher. The next thing she remembered was awakening after surgery.
Claimant later learned that she had broken her left femur and left hip. During surgery, a rod was placed in her thigh and a pin in her hip. This hardware remains in her body. Claimant spent three or four days in the hospital and was then transferred to Putnam Rehabilitation Center (Putnam) to learn how to walk. She spent one month at Putnam. Claimant found the rehabilitation at Putnam extremely painful. She required the drug Percocet which caused her severe constipation. On June 30, 2005, claimant returned to Hudson River. She was thereafter offered physical therapy, which she refused because it was too painful.
Describing her medical history, claimant noted that she has been diagnosed as schizophrenic and bipolar and has been in mental health facilities since the age of 17. Among other physical ailments, including obesity, prior to her fall claimant was treated for knee pain. Claimant's weight necessitated her use of a wheelchair although she could ambulate short distances with a walker.
Since her accident, claimant is confined to a wheelchair. Claimant testified that she continues to experience pain daily ranging from a numb ache to greater intensity in humid weather. She takes Tylenol and Motrin as needed to alleviate her pain.
Claimant was admitted to Hudson River as an involuntary patient on May 3, 2005. On June 24, 2005, she signed a Voluntary Request for Hospitalization form converting herself to Voluntary Status (Ex. C, p 17). She wrote on the form, "I need to be stabalized Phyciartrically and I need help [sic]. Thank you." ( id.). Claimant knew that, as a voluntary patient, she had the right to send a seventy-two hour notice letter requesting her release; claimant did not do so because she had no place to live. Claimant was discharged from Hudson River on April 10, 2007 and admitted to South Beach Psychiatric Center the same day. On May 1, 2007, claimant left the state system and has since been residing at Staten Island Care Center.
The deposition testimony of Dr. Stephanie J. Samuels, a psychiatrist employed at Hudson River, was received into evidence. Samuels was not claimant's treating physician, however she recalled claimant using a wheelchair and requesting Tylenol for her pain (Ex. 10, p 10). She used a wheelchair, but was able to walk. Samuels responded to claimant's fall and observed claimant lying wet and naked on a cold floor in extreme pain ( id. at 23). Samuels' attempts to rotate claimant's leg induced intense pain ( id. at 31). Samuels described a broken hip as "an extremely painful injury" ( id. at 25). Samuels testified that, prior to claimant's fall, she had a history of osteoarthritis.
Upon consideration of all the evidence, the Court finds that claimant is entitled to an award of $270,000 for her past pain, suffering, impairment and scarring and an award of $210,000 for her future pain, suffering, impairment and scarring for a total award of $480,000.
The Counterclaim
Defendant seeks to recover on its counterclaim for the charges claimant incurred at the facilities under the jurisdiction of the New York State Office of Mental Health. Specifically, defendant seeks reimbursement for the cost of services provided to claimant from May 3, 2005 to April 30, 2007, in the amount of $467,051.94, which were not covered by Medicare and were unrelated to defendant's wrong in causing claimant's injury.
Claimant's hospitalization at St. Francis and at Putnam were not included in the calculation.
It is noted that there was an absence of any medical proof that claimant's accident on May 21, 2005 and her resulting injuries in any way impacted her preexisting psychiatric conditions or exacerbated her need for psychiatric treatment ( cf. Genao v State of New York, 178 Misc 2d 512 [medical proof that the rape of defendant's patient aggravated or exacerbated her preexisting mental condition reduced the amount recoverable by defendant on its counterclaim, for the costs of services rendered to its patient which were related to defendant's wrong/negligent supervision]).
Lochiel Phillips, who is employed by the New York State Office of Mental Health, Financial Division, Patient Resource Center, Capital District Psychiatric Center, testified on behalf of defendant. Phillips, who is the office manager of the Capital District Field Office, explained the contents of defendant's Verified Claim (Ex. A) and the documentation supporting the amount. Phillips was responsible for the Attorney General Liaison Unit which prepared the document.
He began by correcting a typographical error on page one which indicated December 27, 2006 rather than the correct date of December 27, 2005.
Phillips testified that when a patient is admitted into a state psychiatric center, an online inquiry is made with the Social Security Administration to determine whether the patient is receiving Medicare or Medicaid. Here, the response revealed that claimant was not receiving either and had no benefits available to her (Ex. A, pp 8-9). Phillips also explained that defendant looked for other possible sources of revenue, such as insurance or private payment. To Phillips' knowledge, claimant had no insurance.
As set forth in defendant's Verified Claim, the statutory per diem rate varied and is calculated accordingly (Ex. A). The per diem rate is set by the Office of Mental Health and authorized by the New York State Division of the Budget. The per diem charge covers all care received by a patient on a given day. There is only one rate regardless of the treatment on any particular day. It is an all inclusive daily rate whether the care is for psychiatric problems or other physical ailments.
It is clear from the plain language of Article 43 of the Mental Hygiene Law that a patient remains liable to the State for the fees for services rendered in the State's mental health facilities (Mental Hygiene Law § 43.03[a]) and that the State may commence an action to recover those costs (Mental Hygiene Law § 43.07; see State of New York v Patricia II , 6 NY3d 160 [the plain language of Article 43 of the Mental Hygiene Law provides that a patient remains liable to the State for services rendered and that the State may commence suit to recover those fees]). Further, it is well established that personal injury awards are subject to the State's right to recover for services rendered at its mental health facilities ( see Matter of Carlon v Regan, 63 NY2d 1011 [personal injury award in the Court of Claims was not intended to be free and clear from claims by the State for services rendered to claimant unrelated to the State's wrong]). Claimant's arguments that, inter alia, it is fundamentally unfair for defendant to prevail on its counterclaim for services rendered to claimant which were unrelated to defendant's negligence regarding her fall, are not supported by statute or case law. Moreover, similar arguments were specifically rejected by the Court of Appeals in Matter of Carlon v Regan, 63 NY2d 1011, 1113, supra.
Claimant also argues that defendant made a tactical decision to "warehouse" claimant in a psychiatric facility, rather than a less costly nursing home facility, as part of a strategical scheme to increase the amount of defendant's counterclaim (Claimant's Unpaginated Post-Trial Memo, p 8). The Court rejects this argument as specious and dehors the record. Notably, claimant's own testimony established that she has been in mental facilities since she was 17 years old and that on June 24, 2005 she converted herself from an involuntary patient to a voluntary patient because she had no other place to live.
Upon consideration of all the evidence, the Court finds claimant is entitled to an award of $480,000 with interest which shall run from January 29, 2010. It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2). The Court also finds that defendant may recover on its counterclaim for $467,051.94, the costs of care rendered to claimant which was unrelated to defendant's wrong and which were not covered by Medicare.
LET JUDGMENT BE ENTERED ACCORDINGLY.