Opinion
119825
06-23-2014
Molly Stephen, JOSE STEPHEN, ALLIE HICKENBOTTOM, LEON HICKENBOTTOM, and SARAH E. SMITH, Claimants, v. The State of New York, Defendant.
For Claimants: The DelliCarpini Law Firm By: Christopher J. DelliCarpini, Esq. John DelliCarpini, Esq. For Defendant: Honorable Eric T. Schneiderman, Attorney General By: Joseph Tipaldo, AAG Edward J. Curtis, Jr., AAG
For Claimants:
The DelliCarpini Law Firm
By: Christopher J. DelliCarpini, Esq.
John DelliCarpini, Esq.
For Defendant:
Honorable Eric T. Schneiderman, Attorney General
By: Joseph Tipaldo, AAG
Edward J. Curtis, Jr., AAG
Faviola A. Soto, J.
By claim filed May 9, 2011, claimants Molly Stephen, Allie Hickenbottom and Sarah Smith allege that on June 7, 2010, as a result of defendant's negligence, they were assaulted by non-party Waheed Foster and sustained serious personal injuries. At that time, Mr. Foster was receiving assisted outpatient treatment pursuant to court order, claimants were employees of Milestone ICL (Milestone), a non-State entity, which provided supervised housing to Mr. Foster and supervised, administered and monitored his medication, and defendant provided certain services and treatment to Mr. Foster. Claimants Jose Stephen and Leon Hickenbottom assert derivative claims. Following the completion of extensive party and non-party discovery and motion practice, this liability only claim was tried before me on March 10, 2014, March 11, 2014, and March 14, 2014. This Decision follows the submission of post-trial briefs dated May 5, 2014.Ms. Stephen, Ms. Hickenbottom and Ms. Smith testified on their own behalf. Claimants also called as witnesses: Dr. Fred Savino, a psychologist and board certified psychopathologist employed by Creedmoor Psychiatric Center (Creedmoor), a State of New York (State) facility; Darren Johnson, Intensive Case Manager at Creedmoor and a State employee; and, claimants' expert, Dr. Larry Kirstein, a board certified psychiatrist licensed to practice in New York. Defendant called as its sole witness its expert, Dr. Alexander Sasha Bardey, a board certified psychiatrist with added qualifications in forensic psychiatry. Claimants introduced four exhibits, including the entire deposition testimony of Mr. Foster.Many of the underlying facts are not in genuine dispute, although their inferences and significance, and the opinions reached by the experts based thereon, differ. Accordingly, only a brief recitation of certain facts follows, with a focus on the alleged acts or omissions of the State. The Court further notes that while this Decision does not specifically address all of the evidence and arguments, it has fully considered and weighed the entire record in reaching its Decision.On October 27, 2009, Mr. Foster was admitted as an inpatient to Creedmoor from Central New York Psychiatric Center. He had a history of criminal behavior, noncompliance with medication and violent or threatening behavior. At Creedmoor, he was compliant with and responded well to medication, was not a management problem and cooperated with staff, and did not exhibit violent or aggressive behavior.
Mr. Foster was evaluated, and, prior to his release from Creedmoor, a court order providing assisted outpatient treatment (AOT) was sought and obtained, pursuant to Mental Health Act § 9.60 (Kendra's Law). Briefly, Kendra's Law sets forth the procedure for certain individuals with mental illness to obtain court orders to receive and accept outpatient treatment. A petition is filed for an AOT order; the petition must be accompanied by a sworn statement of the examining physician who attests to the need for the AOT and that the person meets the criteria for AOT. Criteria for AOT include that the subject of the petition: is suffering from a mental illness, is unlikely to survive safely in the community without supervision and, as a result of the mental illness, is unlikely to participate voluntarily in outpatient treatment that would enable him or her to live safely in the community; has a history of lack of compliance with treatment which, prior to the filing of the petition, resulted in one or more acts of or attempts at serious violent behavior to others or oneself within the specified period; is, in view of their current behavior and treatment history, in need of assisted outpatient treatment to prevent a deterioration or relapse which would likely result in harm to others or self and is likely to benefit from assisted outpatient treatment. The examining physician prepares the written treatment plan that is submitted to the court. A court hearing is held, and, if the court finds that the criteria for AOT is met by clear and convincing evidence, orders that the subject receive assisted outpatient treatment.
Prior to Mr. Foster's January 19, 2010 release from Creedmoor, he was evaluated by Milestone and assessed to be a low risk of harm to himself or others. He then resided at Milestone, which provided supervised housing and supervised, administered and monitored the medication. He also received services from the treatment team from Creedmoor Queens Village Outpatient Department, including monthly psychiatric treatment and medication prescription, weekly psychologist appointments with Dr. Savino and weekly intensive case manager (ICM) visits by Mr. Johnson.
Upon arriving at Milestone and up until the beginning of May 2010, Mr. Foster remained on a supervised medication regimen. There was no record of threatening or aggressive behavior. A Milestone supervisor then unilaterally changed the medication regime from supervised to self-medication. Both experts agreed that it was within Milestone's purview to do so. It was not unusual for a Milestone resident to go from supervised medication to self-medication. Entries subsequent to early May 2010 continue to indicate that Mr. Foster was compliant with medication, stable and doing well at Milestone and there were no reports of decompensation.
Claimants Ms. Stephen, Ms. Hickenbottom and Ms. Smith (collectively, claimants) were employees of Milestone. Ms. Stephen was a case manager, Ms. Hickenbottom was a program coordinator and Ms. Smith was a nurse. All three were involved in various ways in administering and monitoring Mr. Foster's medication and compliance.
In the morning of June 3, 2010, Mr. Johnson met with Mr. Foster and wrote that Mr. Foster did not show signs of decompensation and was polite and cooperative.
Later in the day, Milestone personnel telephoned 911 because Mr. Foster exhibited certain threatening behavior and made certain threatening remarks. Mr. Foster was taken by police and the emergency medical service to Queens Hospital Center (hospital), where he was admitted to the comprehensive psychiatric evaluation program and remained for 24 hour psychiatric observation. The hospital determined he was stable and discharged him on June 4, 2010, and he returned to Milestone.
On June 3, 2010, Ms. Stephen observed Mr. Foster chasing certain Milestone staff around the residence and saw the police take him away for hospitalization. She also testified to an earlier undocumented incident concerning an argument he had with a female staff member. Claimants otherwise did not observe or experience any troubling, violent or aggressive behavior, did not feel threatened by Mr. Foster, and did not observe or know of any non-compliance with his medication during the period prior to his hospital observation.
Claimants testified that, between June 4th and prior to the June 7, 2010 incident that occurred at approximately 10:40 p.m. on June 7th, they did not observe Mr. Foster exhibiting any troubling, violent or aggressive behavior, did not feel threatened by him, and did not see any behavior that would raise a red flag.Milestone did not advise Mr. Johnson of Mr. Foster's hospitalization prior to or during Mr. Johnson's June 7th morning visit with Mr. Foster; the purpose of the visit was to monitor his compliance with the AOT. He noted that Mr. Foster appeared stable, although slightly paranoid, was patient and cooperative, and that Mr. Foster reported he was compliant with his medications and had no problems in the residence and clinic. The date appearing on Mr. Johnson's monthly evaluation as reflected on the acuity scale on the NYC ICM form was listed as 6/1/10, with the "Completed by: Initial and Date" column containing Mr. Johnson's initials and the date of "5/11" (sic). The supervisor's signature for this entry and all other monthly entries are dated the end of the month. Mr. Johnson testified that the 6/1/10 date should have been 6/10/10. Mr. Johnson assigned a "5", the worst grade, to Mr. Foster's monthly acuity scale of the NYC ICM form in the categories of Medication Compliance, Crisis Incidence and Danger to Self or Others.
Dr. Savino was advised by telephone conference from Milestone on June 7, 2010, that Mr. Foster was hospitalized on June 3rd for 24 hour observation and was discharged; he was not advised of any signs of decompensation or violent or aggressive behavior. Dr. Savino arranged for Mr. Foster to meet with his psychiatrist at 1:00 that afternoon, and telephoned Milestone to so advise. Dr. Savino learned that Mr. Foster did not keep that appointment.
At approximately 10:40 p.m. on June 7, 2010, Mr. Foster came to the Milestone medication room where claimants were present. Mr. Foster stabbed Ms. Stephen several times in the face, shoulder and torso. She subsequently passed out and awoke in the hospital approximately 24 hours later. Ms. Smith pulled Mr. Foster off Ms. Stephen and he turned around and hit her several times and knocked her back to her chair. He hit Ms. Hickenbottom in the back of her neck, she fell to the floor, and he began and continued to beat her. Her injuries included a broken nose.
The Court notes that the claim did not allege that a special relationship existed between claimants and the State, and claimants' trial evidence and arguments did not go to establishing such a relationship or duty.
The Court also notes that claimants had instituted a companion action in Supreme Court, Queens County, Index No. 11870/11. By Decision and Order dated December 16, 2013, that Court granted the summary judgment motion of defendant the City of New York and dismissed the complaint against it because of claimants' failure to plead facts establishing the existence of a special duty. That Decision and Order also granted the summary judgment motion of defendant New York City Health and Hospitals Corporation, finding that it demonstrated, and plaintiffs failed to defeat the showing, that: Queens Hospital Center's care and treatment of Mr. Foster [a defendant in that action] was entirely consistent with the standards of good and accepted medical practice; its discharge of Mr. Foster was a professional medical judgment based upon a careful examination; and, its care and treatment of Mr. Foster did not cause or contribute to claimants' injuries.
Medical Malpractice
The Court first addresses that part of the claim, in part or whole, which is couched as one sounding in medical malpractice.
"It has long been recognized that, as a general rule, the sine qua non of a medical malpractice claim is the existence of a doctor-patient relationship." Fox v Marshall, 88 AD3d 131, 138."It is well settled that to maintain an action to recover damages for medical malpractice, the existence of a doctor-patient relationship is necessary". Von Ohlen v Piskacek, 277 AD2d 375, 375. As the Court of Appeals noted in McNulty v City of New York, 100 NY2d 227, 232:
"Generally, a doctor only owes a duty of care to his or her patient. We have been reluctant to expand a doctor's duty of care to a patient to encompass nonpatients. A critical concern underlying this reluctance is the danger that a recognition of a duty would render doctors liable to a prohibitive number of possible plaintiffs [citations omitted]."See also Eiseman v State of New York, 70 NY2d 175; Purdy v Public Adm'r of County of Westchester, 72 NY2d 1; Albala v City of New York, 54 NY2d 269.
"In the limited circumstances" where the Court has "expanded the duty, the third-party's injury resulted from the physician's performance of the duty of care owed to the patient." McNulty, 100 NY2d 227, at 233. "In other words, since the duty that plaintiff seeks to extend is based on a doctor-patient relationship, the injury [to the third party] must have arisen from the doctor's treatment of the patient." Id. While in certain circumstances a physician's duty of care may extend to a patient's family members, "a doctor does not undertake a duty to the community at large (citations omitted)." Fox, 88 AD3d 131, 138.
"[S]ociety's interest is not best served by concluding that a doctor who treats a patient, within the context of mental health, undertakes a duty to the public at large." Fox, 88 AD3d 131, at 140.
"Indeed, it seems certain that such a greater risk of liability would negatively impact the medical treatment of mental health patients. At worst, mental healthcare providers may be reluctant to even undertake treatment of those who are most in need of their services. At the very least, the extension of possible liability would encourage such health care providers to opt in favor of what may be unnecessary confinement for such patients, and concomitantly, decrease the ability of such patients to ultimately successfully integrate into society." Id. at 140.
Here, claimants were not patients of and did not receive medical treatment from a State psychiatrist, facility or mental health provider. To the extent the duty, in limited circumstances, has been expanded to a patient's family members, here too the claim in medical malpractice must fail, as claimants were not members of Mr. Foster's family. Under the undisputed facts herein, and as a matter of law, no duty existed, and claimants' medical malpractice claim is dismissed.
Negligence
The Court next addresses that part of the claim, in part or whole, which is couched as one sounding in negligence. The first issue to decide is whether, at the time the claim arose, the State acted in a governmental capacity or was engaged in a proprietary function. See Applewhite v Accuhealth, Inc., 21 NY3d 420.
When the "activities essentially substitute for or supplement traditionally private enterprises", the governmental defendant performs a purely proprietary role. Id. If the "actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties". Id. at 425.
When the acts are undertaken for the public's protection and safety pursuant to the general police powers, the governmental defendant is deemed to have engaged in a purely governmental function. Id. If so, "the next inquiry focuses on the extent to which the [governmental entity] owed a special duty' to the injured party." "[I]t is well settled that the State is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public. ' " Metz v State of New York, 20 NY3d 175, 179, quoting McLean v City of New York, 12 NY3d 194, 199, quoting Garrett v Holiday Inns, 58 NY2d 253, 261.
There are three ways in which a special duty arising from a special relationship can be formed:
" (1) when the [governmental defendant] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [governmental defendant] assumes positive direction and control in the face of a known, blatant and dangerous safety violation". Pelaez v Seide, 2 NY3d 186, at 199-200.As duty is an essential element of the negligence claim, it is claimant's burden to prove that the State owed a special duty of care to claimant. See Valdez v City of New York, 18 NY3d 69, 75; Lauer v City of New York, 95 NY2d 95 at 100. Where claimant fails to so demonstrate, "the analysis ends and liability may not be imputed to the [governmental defendant] that acted in a governmental capacity." Applewhite, 21 NY3d at 426.
Determining whether the alleged act or omission is governmental or proprietary may present a close question for the Court. Id. at 425. The conduct of a governmental entity "may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions" (Miller v State of New York, 62 NY2d 506, 511-512), and "[t]he varying nature of civic activities engaged in by the State may sometimes partake of both proprietary and governmental aspects." Sebastian v State of New York, 93 NY2d 790, 793.Claimants assert that the State was engaged in a proprietary capacity, as here it was providing, or failing to properly provide, psychiatric care. In support, claimants primarily rely on Schrempf v State of New York, 66 NY2d 289. They point to aspects of their claim that they assert involve purely proprietary acts, which resulted in Mr. Foster's assault and the claimants' injuries. For example, they focus on: the decision to permit Mr. Foster to self-medicate, contrary to his record which included incidents of non-compliance with medication and of violent or threatening behavior; the failure to detect that he failed to take his medication and the resulting decompensation; the failure to monitor and act upon his threatening behavior; and, the failure to involuntarily commit Mr. Foster.
At the conclusion of their post-trial brief [at 31], claimants assert that the:
"State had a duty to protect Claimants from Foster. The State breached that duty in allowing Foster to self-medicate and in failing to examine him when he decompensated to violence. These two departures left Foster untreated and free to attack Claimants on the night of June 7, 2010. Thus the State is liable for Claimants' injuries."Even assuming without finding that claimants' underlying factual assertions are correct, claimants' characterization of the acts or omissions as proprietary is incorrect and their reliance on Schrempf, id., is misplaced.
To pinpoint where along the continuum the complained of acts or omissions falls, the Court has examined both the specific act(s) or omission(s) and the capacity in which that act or omission occurred. See Sebastian, 93 NY2d at 794; Miller, 62 NY2d at 513. The Court does not agree with claimants' alleged characterizations of the acts or omissions as proprietary because they involve medical treatment or care. The Court has carefully examined the nature of the acts/omissions and the capacity the State was acting in, in context and not in frozen isolation, and determines that the acts or omissions are more than pure medical treatment or care and necessarily are interwoven and intertwined with the State's governmental function. Here, the acts or omissions fall on the governmental end of the continuum.As the State acted in a governmental capacity, claimants must prove that the State owed them a special duty. The Court first notes that claimants do not so allege in their claim, and, therefore, the claim fails. Even assuming arguendo that claimants could have amended their claim to so allege, they did not do so. In any event, at trial claimants did not demonstrate any facts showing that the State owed them a special duty. Accordingly, their negligence claim fails.
Assuming without finding that the acts or failures to act were proprietary, here too the Court finds that claimants' negligence claim must be dismissed. The following is a brief discussion.
First, claimants have failed to demonstrate that the State breached good and accepted practices in the area of psychiatric care and that this breach caused Mr. Foster's assault upon claimants. In so finding, the Court finds persuasive the testimonies of Dr. Savino, Mr. Johnson and Dr. Bardey and specifically credits their testimonies over the testimonies of claimants and Dr. Kirstein where certain facts or opinions vary, particularly in the areas of AOT in general and Mr. Foster's AOT in particular, and whether Mr. Foster exhibited decompensation due to noncompliance with medication. Further, the Court overall finds the testimony of the State's expert to be more persuasive than that of claimants' expert, and, where their opinions differ, specifically credits the State's expert witness.
The State is not held liable for errors in professional judgment (See Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682), and an expert's opinion that an alternative treatment should have been followed or a disagreement of opinion among experts is insufficient. See Centeno v City of New York, 48 AD2d 812. "The prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instances it involves a measure of calculated risk." Id. at 813. Here, the evidence was insufficient to establish that the State breached its duty and that it rendered inadequate or inappropriate care and treatment. See Topel, 55 NY2d 682 ; Wilson v State of New York, 112 AD2d 366.
As noted by the Court of Appeals in Schrempf, 66 NY2d at 295-296:
"Although in the past, the care of those suffering from mental infirmities was generally limited to confinement, the modern and more humane policy of the medical profession and the law contemplates returning the mental patient to society, if he does not pose an immediate risk of harm to himself or others (citations omitted). This, we have noted, requires a sensitive appraisal of competing interests: (1) the State's duty to treat and care for its mental defective wards, with an eye toward returning them to society more useful citizens, and (2) the State's concern that the inmates in its institutions cause no injury or damage to the property of those in the vicinity.' (citation 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 (citations omitted). These circumstances necessarily broaden the area of professional judgment to include treatments tailored to the particular case, where the accepted procedure' does not take into account factors which the treating physician could reasonably consider significant (citations omitted)."
The Court additionally briefly notes as follows. "There is no bright-line rule in New York regarding whether a mental health care provider treating a patient on a voluntary basis owes a duty of care to the general public (citation omitted). Instead, the courts have examined the issue on a case-by-case basis." Fox, 88 AD3d 131, 136. Here, claimants did not establish that the State owed a duty of care to claimants. They did not show that the State had the requisite control over Mr. Foster or owed a duty to intervene. See Purdy v Public Adm'r of County of Westchester, 72 NY2d 1 ; Schrempf, 66 NY2d 289 ; Fox, 88 AD3d 131; Englehart v County of Orange, 16 AD3d 369. Mr. Foster was not an involuntarily committed patient at a State facility or hospital. He was a patient under a court ordered AOT. Milestone unilaterally altered Mr. Foster's medication regime to self-medication, and the State played no role in that decision or in the Hospital's decision to release Mr. Foster on June 4, 2010. The Court also notes that claimants have not established that Mr. Foster decompensated due to lack of compliance with self-medication, or that the State's negligence, if any, was a proximate cause of Mr. Foster's assault and claimants' injuries.
In conclusion, claimants have failed to establish, by a preponderance of the evidence, that the State is liable. "While the temptation is always great to provide a form of relief to one who has suffered, it is well established that the law cannot provide a remedy for every injury incurred". Albala v City of New York, 54 NY2d 269, 274.
For the foregoing reasons, the claim is dismissed.
LET judgment be entered accordingly.
June 23, 2014
New York, New York
FAVIOLA A. SOTO
Judge of the Court of Claims