Opinion
12923/01.
Decided July 20, 2005.
Upon the foregoing papers, defendants/third-party plaintiffs New Hope Guild Center for Emotionally Disturbed Children, s/h/a "New Hope Guild Center" (hereinafter "New Hope Guild Center"), Marina Galea, M.D. ("Dr. Galea"), Alexander Braver, M.D. ("Dr. Braver") and Ruth Stein, CSW, s/h/a "John" Stein, move pursuant to CPLR 3025(b) for an order granting leave to serve and file an amendment and supplement to their separate answers adding a Fourth, Fifth, Sixth and Seventh Affirmative Defense, and adding a Counterclaim against plaintiff Alexander Skylarsky for contribution and indemnity.
This is an action alleging psychiatric malpractice. Plaintiff alleges that the decedent, Sofia Skylarsky, was under the care and treatment of the defendants/third-party plaintiffs from January 5, 2000 until June 6, 2000 when decedent committed suicide. Movants claim that evidence was adduced during the course of continuing discovery which reveals "culpable conduct by plaintiff Alexander Skylarsky in failing to obtain emergency medical services for his wife and in further failing to follow explicit instruction to him by the defendants to take his wife (the decedent) to a hospital emergency room to be evaluated. Mr. Skylarsky's intervening negligence was a direct and proximate cause of Mrs. Skylarsky's death." (Affirmation of Alan C. Kelhoffer, Esq., ¶ 4). Movants seek to add the following affirmative defenses (as paraphrased by the court):
Fourth: pursuant to Article 14-A of the CPLR, plaintiffs' claim for damages against the movants shall be reduced based on the proportionate culpable conduct attributable to the plaintiff Alexander Skylarsky;
Fifth: pursuant to Article 16 of the CPLR, the liability of the movants for non-economic loss shall not exceed the equitable share of movants' liability in accordance with the relative culpability of each person or party causing or contributing to the total liability for non-economic loss;
Sixth: pursuant to CPLR 4545(a) and (c), in the event plaintiffs recover a verdict or judgment against movants, said verdict or judgment shall be reduced by any collateral sources which have or will, with reasonable certainty, replace or indemnify plaintiffs, such as insurance, Social Security, Workers' Compensation, or employee benefit funds (referring to disability benefits which the decedent was receiving from Union 1199 National Benefits Fund prior to January 2000 and continuously until her death);
Seventh: the injuries sustained by plaintiff-decedent were caused in whole or in part by third parties over which defendants exercised no authority or control (referring to Coney Island Hospital from January 10 through January 28, 2000).
In addition, movants seek to add a counterclaim stating that Alexander Skylarsky was negligent in failing to provide medical aid to his deceased wife by failing to call emergency medical services to her assistance, and/or in refusing and/or failing to take her to a hospital emergency room as instructed to do so by movants, and thereby movants seek indemnification and/or contribution from Alexander Skylarsky pursuant to CPLR 1401 et seq.
Procedural Background
This action was commenced by the plaintiffs against the defendants in April of 2001. Issue was joined in June of 2001 by the defendants New Hope Guild Center, Dr. Galea, Dr. Braver and Ruth Stein. On January 6, 2003 defendants commenced a third-party complaint for contribution and/or indemnification against Coney Island Hospital and New York City Health and Hospitals Corporation ("NYCHHC") based on the decedent's admission as an inpatient at Coney Island Hospital from January 10, 2000 to January 28, 2000. Issue was joined as to the third-party defendants in February of 2003.
A Note of Issue was filed on January 16, 2004. In ruling on a motion to vacate the Note of Issue by the defendants/third-party plaintiffs and a cross-motion to vacate the Note of Issue by the third-party defendants, Justice Belen of this court, in an Order dated March 3, 2004, denied the motion and cross-motion to vacate the Note of Issue, and this case was permitted to remain on the trial calendar while extensive discovery continued, including depositions of Dr. Braver (to be held on 3/9/04); Ruth Stein (to be held by 3/25/04); Dr. Eliot M. Levy, non-party witness and former employee of Coney Island Hospital (to be held by 4/15/04); Nurse Bernard (to be held by 5/7/04); and non-party Margaret Skylarsky (to be held by 6/1/04). In addition, Justice Belen extended the time for the filing of dispositive motions to within 60 days of the last deposition held, i.e., by August 1, 2004.
The depositions of Dr. Braver and Ruth Stein was timely conducted; the depositions of the other witnesses were conducted late, from as little as nine days past court-imposed deadlines to as long as five months past the deadline with respect to Nurse Bernard. The deposition of Nurse Bernard was in fact not yet completed when this motion was filed.
Factual Background
In support of the motion, movants point to Alexander Skylarsky's deposition testimony on September 11, October 8 and October 11, 2003, and the deposition testimony of Dr. Galea on December 11, 2003 and January 27, 2004.
Mr. Skylarsky testified that his wife's condition began to deteriorate approximately 1½ months after her second discharge from Coney Island Hospital. Then, toward the end of May and beginning of June 2000 the deterioration of decedent's mental condition began to accelerate. Decedent's husband testified that on Monday June 5, 2000 his wife was running around frantically and speaking nonsense, and he found a suicide note which his wife had written. Mr. Skylarsky telephoned Dr. Galea at approximately 5:00-6:00 p.m., and described his wife's behavior. While Mr. Skylarsky remembered that Dr. Galea refused his request that she see his wife at the New Hope Center that evening, as it was not her scheduled appointment, he did not recall whether Dr. Galea advised him to take the decedent to a hospital.
Mr. Skylarsky then received a telephone call from the decedent's social worker, Ruth Stein, who "strongly recommended" that he take his wife to the emergency room. Mr. Skylarsky testified that his wife had been in this condition "for this terrible three days," that he didn't know what to do, that he made several calls to his daughter, and that he decided that "we will tomorrow morning we will go, we will go" to the hospital.
Dr. Galea testified that she had first seen decedent at New Hope Guild Center on January 10, 2000. She diagnosed decedent as having a psychotic disorder and prescribed anti-psychotic medication. She next saw decedent on February 21, 2000, after decedent's discharge from her second admission at Coney Island Hospital. Decedent was still delusional and was treated with anti-psychotic medications and Valium. By May 1, 2000 decedent was no longer delusional, was going on her own to the clinic, had an improved demeanor and was discussing returning to work. On May 16, 2000 Dr. Galea saw decedent in an unscheduled visit. Her condition had deteriorated — she was paranoid, having flat affect, and was anxious and depressed. Dr. Galea last saw decedent on May 30, 2000. She testified that the decedent was doing worse, was very anxious and depressed, but testified that the decedent denied any hallucinations or homicidal or suicidal ideations. Decedent also continued to express a desire to return to work. Dr. Galea increased decedent's anti-psychotic medication, prescribed additional medications, and scheduled a followup appointment in three weeks.
Dr. Galea claims that she wanted a followup visit in one week, but that three weeks was chosen, as that was the earliest time that the decedent was available.
Dr. Galea testified that she did not think that the decedent needed to be committed at that time. Her condition was fluctuating, the course of her illness was that "she could get better, she could get worse," so the medication was changed and decedent was given some time to see how she was doing. Dr. Galea's version of the telephone conversation with Mr. Skylarsky on June 5, 2000 was that she advised Mr. Skylarsky to take his wife to the emergency room in order to address Mr. Skylarsky's complaints of his wife's inability to sleep and his desire to change his wife's medication. Dr. Galea stated that she could not change medication over the phone and that the decedent needed to be seen by a psychiatrist. Dr. Galea told Mr. Skylarsky that it was possible that his wife would not have to be admitted to the hospital. Also, being aware that Mr. Skylarsky felt that he had endured a bad experience with Coney Island Hospital during the wife's previous admissions, Dr. Galea advised him that he could take his wife to Maimonides Medical Center (which was closer to the Skylarsky residence), that Dr. Galea knew personally physicians at Maimonides, and that Mr. Skylarsky could ask the doctor to call Dr. Galea. She testified that Mr. Skylarsky said to Dr. Galea that "I see you don't want to help me" and hung up. He then called back, and after a similar conversation, hung up again.
Dr. Galea then notified Ms. Stein, the decedent's social worker, of this conversation and told her to followup with Mr. Skylarsky. At the end of the day she consulted with Ms. Stein, who advised Dr. Galea that she had spoken to Mr. Skylarsky and that he was going to take his wife to the hospital.
Dr. Galea explained that the reason she advised Mr. Skylarsky to take his wife to a hospital was that New Hope Guild Center was an outpatient clinic, not equipped to deal with an emergency, with no medications and no means to restrain a patient. She also stated that the inability to sleep is not an emergency, and that she did not detect and the decedent did not manifest any suicidal or homicidal ideations during her treatment of the decedent.
Ultimately, Mr. Skylarsky remained at home with his wife the evening of June 5-6, 2000. Early the next morning, some eight hours after his last conversation with Ms. Stein, the decedent fell from the fourth floor fire escape outside her apartment window in an apparent suicide.
Plaintiffs oppose the motion, claiming that the motion lacks a medical affidavit of merit; that the motion is being made very late in the proceedings and on the eve of trial; and that movants were well aware of the testimony upon which the proposed amended answer and counterclaim are based. Moreover, plaintiff claims that to permit the amendment would cause significant delay in this case because separate counsel would have to be retained for Alexander Skylarsky (whose interests would now be at odds with those of the estate he represents), and additional discovery would need to be conducted.
Analysis
Leave to amend a pleading should be freely granted absent a showing of prejudice resulting from the delay and provided that the proposed amendment is not plainly lacking in merit ( see Monello v. Sottile, Megna, 281 AD2d 463, 464, citing CPLR 3025 [b]; Fidelity Holdings v. Marom, 276 AD2d 468; Tarantini v. Russo Realty, 273 AD2d 458). The motion must be accompanied by an affidavit showing the merit of the proposed amendments, and by an affidavit showing reasonable excuse for the delay in seeking leave to amend the pleading ( Alexander v. Seligman, 131 AD2d 528, 528; Schroeder v. Brooklyn Hosp., 119 AD2d 564-565, lv denied 68 NY2d 603). Judicial discretion in allowing the amendment of a pleading on the eve of trial, however, should be discreet, circumspect, prudent, and cautious ( see e.g. Clarkin v. Staten Island University Hospital, 242 AD2d 552; Rosa v. Westchester County Med. Ctr., 233 AD2d 311, 312; Perricone v. City of New York, 96 AD2d 531, 533, affd 62 NY2d 661).
"Although leave to amend a pleading should be freely given absent prejudice to the opposing party ( see CPLR 3025 [b]; Edenwald Contr. Co. v. City of New York, 60 NY2d 957, 959; Charleson v. City of Long Beach, 297 AD2d 777), leave should be denied if the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit ( see AYW Networks v. Teleport Communications Group, 309 AD2d 724; Leszczynski v. Kelly McGlynn, 281 AD2d 519)" ( Ruddock v. Boland Rentals, Inc., 5 AD3d 368). Indeed, "'a court must examine the underlying merit of the proposed claims, since to do otherwise would be wasteful of judicial resources'" ( Toscano v. Toscano, 302 AD2d 453, 454, quoting Morgan v. Prospect Park Assocs. Holdings, 251 AD2d 306).
Here the application for leave to amend is being made approximately one year after the filing of the Note of Issue and the certificate of readiness. While the proposed amendment appears to be based upon factual circumstances known at the time the action was commenced approximately four years prior thereto, and while in support of the motion movants refer to deposition testimony of Alexander Skylarsky from September and October 2003, and of Dr. Galea from December 2003 and January 2004 (which is more than one year prior to the date of the motion to amend the pleadings), this case was permitted by Justice Belen to remain on the trial calendar while discovery continued. That discovery included depositions of parties and non-parties which were ongoing even at the time this motion was pending. The court finds that those circumstances constitute a reasonable excuse for the delay in moving to amend.
With respect to the plaintiff's claim that a medical affidavit is required, this court has two motions for summary judgment under consideration in this action contemporaneously with the instant motion. One of those is made by the defendants/third-party plaintiffs, and in support thereof defendants/third-party plaintiffs have submitted an affidavit of a medical expert which they ask this court to consider as well in relation to the motion to amend their answer.
The affidavit of Michael S. Aronoff, M.D., a physician Board Certified in General Psychiatry and Forensic Psychiatry, indicates that he has reviewed the pertinent medical records and deposition transcripts. Dr. Aronoff states that it is his opinion as a psychiatrist that Mr. Skylarsky possessed sufficient cognitive ability to comprehend the instructions from Dr. Galea and Ms. Stein to take his wife to the hospital on June 5, 2000, based on Dr. Aronoff's assessment of Alexander Skylarsky's testimony, immigration history, gainful employment, his having two daughters, including one who was a pharmacist, and his ability to testify responsively throughout his deposition in English. Dr. Aronoff notes that both Mr. Skylarsky's and Ms. Stein's testimony reflect that Mr. Skylarsky agreed to take his wife to the hospital, and that his wife's condition was an emergency.
Dr. Aronoff additionally opines that it is in keeping with the custom and practice of the psychiatric community to instruct and rely upon the assent of a patient's spouse to take the patient to the hospital in an emergency. The records indicate that Mr. Skylarsky assisted his wife in obtaining psychiatric treatment, and in Dr. Aronoff's opinion, the defendants/third-party plaintiffs reasonably expected Mr. Skylarsky to take his wife to the hospital, and such expectation is in keeping with the standard of care of the psychiatric community. Had she been taken to the hospital, it is Dr. Aronoff's opinion that the decedent would have received an emergency psychiatric evaluation and her risk of suicide and need for involuntary commitment would have been assessed.
To charge plaintiff Alexander Skylarsky with negligence, movant must establish that Mr. Skylarsky had a legal duty, that he breached that duty, and that Mr. Skylarsky's alleged intervening negligence was a direct and proximate cause of Mrs. Skylarsky's death ( Elliot v. Long Island Home, Ltd., 12 AD3d 481, 483; see, Pulka v. Edelman, 40 NY2d 781). This duty proposed by movants is one to obtain emergency medical services for his wife, and/or to follow explicit instruction to him by the defendants to take his wife to a hospital emergency room to be evaluated. While it cannot be gainsaid that Mr. Skylarsky had a moral duty to so act, the question which must be determined is whether there was a legal duty to so act which, if breached, constituted negligence.
Generally, movant cites cases where the amount of damages which the plaintiff may receive were reduced to the degree that the plaintiff's own negligence increased the extent of injury, by, for example, failing to keep appointments ( Heller v. Medina, 50 AD2d 832) or by failing to return to the hospital ( Quinones v. City of New York, 49 AD2d 889). Movant additionally points to one New York criminal case, and several sister state holdings which movant claims delineate a common law duty which Mr. Skylarsky was required to perform. In People v. Robbins, 83 AD2d 271(1981), a woman who had suffered with diabetes and epilepsy for many years was required to take certain medications in order to control her diseases. Her husband, the defendant, had on many prior occasions summoned an ambulance or himself taken his wife to the emergency room when she lapsed into diabetic coma. This husband and wife were deeply religious "born again" Christians who met a self-proclaimed minister, the co-defendant, who convinced the husband and wife that if she had sufficient faith, God would cure all illnesses. After the wife stated that she had a revelation, the three discussed its significance and all agreed that the wife would stop taking her medications. She then suffered multiple seizures, lapsed into diabetic coma, and died.
In upholding the dismissal of the indictment charging the husband with criminally negligent homicide for failing to summon medical aid for his wife, the Appellate Division, Fourth Department recognized that "[u]nquestionably, there is a common-law marital duty to provide medical attention to one's spouse but we must examine when, and under what circumstances, the breach of duty will result in criminal culpability" ( People v. Robbins, id, at 272). The Court noted that in New York a competent adult has a right to determine whether or not to undergo medical treatment ( Matter of Storar, 52 NY2d 363; Schloendorff v. Society of NY Hosp., 211 NY 125). As a result, the Court found that "it would be an unwarranted extension of the spousal duty of care to impose criminal liability for failure to summon medical aid for a competent adult spouse who has made a rational decision to eschew medical assistance" (id, at 275). Notably, the Court pointed out that the indictment "was defective for failure to state that [the deceased] was incapacitated or otherwise unable to make a rational decision and indeed the evidence would not support such claim" (id, at 276).
In a Pennsylvania case, Commonwealth v. Konz, 498 Pa. 639, 450 A.2d 638 (1982), Reverend Konz was a diabetic who self-administered insulin. After an encounter with a visiting evangelist speaker, the Reverend publicly announced his desire to discontinue insulin treatment in reliance on his belief that God would heal his diabetic condition. He assured others that he would carefully monitor his condition and, if necessary, take insulin.
During the next two weeks Reverend Konz administered insulin only one or two times. Then the Reverend and a person named Erikson, one of his students, formed a pact to pray together to enable Reverend Konz to resist the temptation to take any further insulin. The Reverend's wife was informed of this prayer pact and joined with Erikson one day in the Reverend's home to take steps to prevent the Reverend from accessing his insulin, including concealing the insulin, physically blocking his attempts to access it, and forcing him into a bedroom where they prevented the Reverend from telephoning the police and temporarily rendered the telephone inoperable.
Following these confrontations, the three returned to an amicable relationship and Reverend Konz indicated to his aunt who resided in the house that "[i]t's all settled now." He then proceeded with normal activities, including driving his wife to an institution having hospital facilities to pick up a close friend who was a practical nurse. While there he manifested symptoms of a lack of insulin. However, the Reverend, who appeared rational, conversant and cognizant of his environs, never requested insulin. When he returned home, the Reverend's condition worsened. While his wife and Erikson administered cracked ice to him, they never summoned medical aid. Reverend Konz died shortly thereafter of diabetic ketoacidosis.
Following the convictions of Mrs. Konz and Erikson for involuntary manslaughter, the Supreme Court of Pennsylvania noted that the determinative issue on appeal was whether Mrs. Konz had a duty to seek medical attention for her spouse. Under the circumstances of the case, the court found no such duty to have been present, and reversed the criminal convictions. The court recognized that there are exceptions to "the longstanding common law rule that one human being is under no legal compulsion to take action to aid another human being" (id, 633-634), such as the duty imposed on a parent for a child. This is based on the inherent dependency of a child upon the parent to obtain medical aid — the incapacity of a child to evaluate his condition and summon aid by himself, supports imposition of such a duty upon the parent.
However, an adult spouse does not generally suffer the same incapacity as do children with respect to the ability to comprehend their states of health and obtain medical assistance. The court noted that recognition of an unrestricted duty for one spouse to summon medical aid whenever the other is in a serious or immediate need of medical attention would place lay persons in peril of criminal prosecution while compelling them to medically diagnose the seriousness of their spouses' illnesses and injuries. It would additionally impose an obligation for a spouse to take action at a time when the stricken individual competently chooses not to receive assistance.
The Pennsylvania Supreme Court cited cases in two other states where the marital relationship was sufficient, in itself, to invoke a limited duty for one spouse to seek medical care for another. In Westrup v. Commonwealth, 123 Ky. 95, 93 S.W. 646 (1906) the defendant's pregnant wife insisted that she did not want medical aid for the birth of her child. Soon after giving birth she developed complications, and her husband summoned a physician, who was at that point unable to prevent the death of the defendant's wife. The husband's conviction for involuntary manslaughter was reversed, the court finding that the husband had acted in good faith and at his wife's competent request. The court stated:
Where the husband neglects to provide necessaries for his wife, or medical attention in case of her illness, he will be guilty of involuntary manslaughter, provided it appears that she was in a helpless state and unable to appeal elsewhere for aid, and that the death, though not intended nor anticipated by him, was the natural and reasonable consequence of his negligence.
In State v. Mally, 139 Mont. 599, 366 P.2d 868 (1961), defendant's wife was in poor physical condition prior to an occurrence which left her with two fractured arms. After the accident, defendant permitted his wife to lay in a semi-comatose condition while she decried the need for aid for two days before he summoned a physician. This delay caused her death. In this case the conviction for involuntary manslaughter was affirmed, the court stating:
We are aware that the large majority of homicide cases involving a failure to provide medical aid involve a parent-child relationship. This is undoubtedly due to the fact that a person of mature years is not generally in a helpless condition. However, fact situations do aries, such as the instant case, wherein it is apparent that an adult is a helpless as a newborn. The record is replete with evidence that [decedent] could not have consciously or rationally denied medical aid.
While distinguishable on the facts, see also, State v. Morgan, 86 Wn. App. 74, 936 P.2d 20 [1997], where the Court of Appeals of Washington stated that the defendant "had a statutory duty to provide medical care, a natural duty to provide medical help to his wife, and a duty to summon aid for someone he helped place in danger" in upholding the husband's first degree manslaughter conviction (emphasis added).
Thus, New York, in the Robbins case, Kentucky, in the Westrup case, and Montana, in the Malley case, recognize that a common law duty may exist for a person to summon medical assistance for a spouse where the spouse, by reason of being "incapacitated or otherwise unable to make a rational decision" ( People v. Robbins), or in a " helpless state and unable to appeal elsewhere for aid" ( Westrup v. Commonwealth), or "wherein it is apparent that an adult is a helpless as a newborn" ( State v. Mally).
These cases establish that under the circumstances presented in this case, movant has demonstrated that Mr. Skylarsky had a common-law duty to provide medical aid to his wife by calling emergency medical services to her assistance, and/or by taking her to a hospital as instructed to do so by movants. Consequently, the proposed amendment is not palpably insufficient as a matter of law or totally devoid of merit.
In the case at bar, the decedent was arguably not able to make a rational decision to eschew medical assistance. At the time of the telephone conversations with Dr. Galea and Ruth Stein, Dr. Galea testified that decedent's condition had deteriorated from May 16, 2000, when decedent was paranoid, having flat affect, and was anxious and depressed, to where the decedent was doing worse, and was very anxious and depressed when Dr. Galea last saw decedent on May 30, 2000. While Dr. Galea testified that the decedent denied any hallucinations or homicidal or suicidal ideations as of May 30, 2000, Dr. Galea did increase decedent's anti-psychotic medication, prescribe additional medications, and attempt to schedule a followup appointment in one week. These symptoms and illnesses constitute the type of diminished, incapacitated, helpless state contemplated by the cases just cited.
Decedent's husband, having experienced "for this terrible three terrible days" of his wife's frantic behavior and speaking nonsense, and knowing that his wife had written a suicide note, was admittedly advised by Ruth Stein to get his wife to the hospital, and was also so advised by Dr. Galea, according to Dr. Galea's testimony. Mr. Skylarsky chose to wait for at least eight hours to take his wife to the hospital, and during this delay his wife was able to climb out of a window in the apartment and fall to her death in an apparent suicide. The affidavit of Dr. Aronoff indicates his opinion as a psychiatrist that Mr. Skylarsky possessed sufficient cognitive ability to comprehend the instructions from Dr. Galea and Ms. Stein to take his wife to the hospital on June 5, 2000, and that his wife's condition was an emergency.
While plaintiff claims that to permit the amendment would cause significant delay in this case because additional discovery would need to be conducted, plaintiff has failed to articulate what additional discovery would be necessary, nor any specific prejudice. In addition, plaintiff's claim that separate counsel would have to be retained for Alexander Skylarsky can be addressed at a conference held prior to trial.
Conclusion
Accordingly, the motion by defendant/third-party plaintiff pursuant to CPLR 3025(b) for an order granting leave to serve and file an amendment and supplement to their separate answers adding a Fourth and Fifth Affirmative Defense, and adding a Counterclaim against plaintiff Alexander Skylarsky for contribution and indemnity is granted, and same are deemed served.
The court notes that with respect to the proposed Sixth Affirmative Defense, seeking to reduce a verdict or judgment by any collateral sources pursuant to CPLR 4545(a) and (c), plaintiff does not object to this portion of the motion and admits that same can be made up to the time judgment is entered and is subject to a post-trial hearing. With respect to the proposed Seventh Affirmative Defense, the motion is unopposed. Accordingly, the motion is granted as to the proposed Sixth and Seventh Affirmative Defenses, and same are deemed served.
This constitutes the Decision and Order of the court.