Antoine v New York City Health & Hosps. Corp.

[*1] Antoine v New York City Health & Hosps. Corp. 2005 NY Slip Op 50038(U) Decided on January 24, 2005 Supreme Court, New York County Carey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 24, 2005
Supreme Court, New York County

ARETHA ANTOINE, Plaintiff,

against

NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, BELLEVUE HOSPITAL CENTER, THE CITY OF NEW YORK, RICARDO CASTANEDA, M.D., KAREN RUBENSTEIN, M.D., and BERNARD SALZMAN, M.D., Defendants.



114275/01



Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY (by Barry Berger, Esq.) for the defendants

Marino & Weiss, P.C., White Plains, NY (by James Marino, Esq.) for the plaintiff

Joan B. Carey, J.

Introduction

Motion by the defendants for summary judgment dismissing the complaint in its entirety.

Facts & Procedural Posture

On May 17, 2000, the plaintiff was involved in an unusual set of circumstances that led to her involuntary commitment, pursuant to the Mental Hygiene Law, for a period of twenty days at defendant Bellevue Hospital Center ("Bellevue").

During the early morning hours of May 17, 2000, the plaintiff called "911" and requested medical assistance for her then-boyfriend, Vincent Herbert, at his Manhattan apartment. Two New York City police officers, Officers Rocanello and Narvaez, responding to a dispatch on the "911" call, arrived at the scene to find the plaintiff outside of Herbert's apartment building. The plaintiff identified herself, stated that she had made the phone call to "911", and told the officers that she and Herbert had an argument and that she was concerned that Herbert may harm himself. Additionally, the plaintiff indicated that Herbert may have a gun in the apartment.

The officers, accompanied by the plaintiff, went to Herbert's third floor apartment, where the officers tried, [*2]unsuccessfully, for several minutes to summon Herbert. Following the arrival of several additional officers, the door of Herbert's apartment was removed, and the apartment was searched. While not allowed in the apartment, the plaintiff was allowed to stand in the corridor adjacent to the apartment. The search revealed that the apartment was empty. Despite being told by the officers that Herbert was not in the apartment, the plaintiff repeatedly insisted to the contrary, and maintained that the officers needed to look more carefully because Herbert was "little" and could be hiding.

Upon further conversation with the plaintiff, Officer Rocanello learned that the plaintiff had left Herbert multiple messages on his answering machine in the hours leading up to the officers' intervention. The Officer found the answering machine in the apartment and listened to the messages, hearing the approximately forty messages that the plaintiff had left Herbert. In the messages, the plaintiff cried, screamed and yelled, used profanity, threatened to "go after" Herbert, and threatened to harm herself if Herbert did not answer her calls. After listening to the messages, Officer Rocanello returned to the corridor where the plaintiff was located. The plaintiff continued insisting that Herbert was in the apartment, began accusing the officers of lying to her, and acted belligerently, speaking loudly and cursing at the officers.

Based upon the events that had unfolded, the officers called an ambulance to the scene to transport the plaintiff to Bellevue. Upon the arrival of the ambulance, the plaintiff was taken into custody by the officers pursuant to Mental Hygiene Law § 9.41, which permits a police officer to take into custody a person who appears to be mentally ill and is conducting herself in a manner which is likely to result in serious harm to the person or others. The plaintiff was then transported to the psychiatric emergency room of Bellevue.

Bellevue's staff obtained personal information from the plaintiff (e.g. address, occupation) following her arrival at the emergency room, and a mental status exam was administered to the plaintiff. During the intake process, the plaintiff provided, among other things, the name of a friend, Michelle Davis, for Bellevue to contact.

According to the comprehensive assessment form generated following the mental status exam, Davis was contacted by a member of Bellevue's staff. The entry in the form regarding the phone conversation between Davis and the staff member indicates that Davis reported that the plaintiff believed that private detectives were following her, that the plaintiff had stated that she was "not sure what's real and what's not", and that the plaintiff had stated that she heard voices telling her to kill herself. The plaintiff denied telling Davis these things, denied [*3]experiencing hallucinations, and denied considering suicide.

Following the completion of the plaintiff's assessment, staff physicians at Bellevue admitted the plaintiff pursuant to Mental Hygiene Law § 9.40, which permits a qualified facility to retain and treat, for a period not to exceed seventy-two hours, a person alleged to have a mental illness which is likely to result in serious harm to the person or others. The plaintiff did not consent to her admission.

Several hours after Davis had been contacted, a social worker at Bellevue was able to contact the plaintiff's mother, with whom the plaintiff lived, who was on vacation outside of New York State. According to the note authored by the social worker memorializing the call between herself and the plaintiff's mother, the plaintiff's mother reported that the plaintiff's behavior had been "fine". However, the note also indicates that the social worker spoke with the plaintiff's maternal aunt, who painted a very different picture of the plaintiff. The aunt told the social worker, among other things, that the plaintiff's behavior had been unpredictable for several years, and that the plaintiff was violent towards her mother. Within a few hours of this call, the plaintiff's admission status was changed to an admission on an emergency basis for observation and care pursuant to Mental Hygiene Law § 9.39, which permits the fifteen-day involuntary admission of a person alleged to have a mental illness which is likely to result in serious harm to the person or others. The plaintiff was subsequently admitted to a psychiatric floor ("the floor") at Bellevue.

Defendant Bernard Salzman, M.D., was assigned as the plaintiff's attending physician following her admission to the floor. Dr. Salzman spoke with the plaintiff on several occasions, including during a mental status exam that the doctor performed shortly after the plaintiff was admitted to the floor. During this exam the plaintiff again denied suicidal ideation or experiencing hallucinations, and maintained that she did not want to hurt anyone. Dr. Salzman, based on interviews with the plaintiff and her Bellevue record, diagnosed the plaintiff with paranoid schizophrenia.

By an order to show cause, dated May 25, 2000, Bellevue petitioned to medicate the plaintiff over her objections, and, implicitly, to continue the plaintiff's involuntary commitment. The petition was supported by the affirmations of Dr. Salzman, defendant Karen Rubenstein, M.D., an attending physician at Bellevue, and defendant Richardo Castaneda, M.D., Bellevue's Director of Inpatient Psychiatric Services. Dr. Rubenstein stated, among other things, that she examined the plaintiff and that the plaintiff suffered from paranoid schizophrenia. In his affirmation, Dr. Castaneda stated that he had reviewed the diagnoses of Drs. Salzman and Rubinstein. While Dr. Castaneda [*4]did not offer an opinion as to the propriety of those diagnoses, he tacitly agreed with them, concluding that the plaintiff needed to be involuntarily medicated. The plaintiff separately petitioned for discharge from emergency commitment. Following two hearings, the plaintiff was discharged from Bellevue on June 6, 2000.

The plaintiff subsequently commenced the instant action against the defendants to recover damages, asserting multiple causes of action against each defendant. The gravamen of the plaintiff's action is that the defendants were negligent in taking her into custody, and committing her to and retaining her at Bellevue.

The present motion by the defendants, which the plaintiff opposes, is for summary judgment dismissing the complaint in its entirety.

Analysis

Collateral Estoppel

The defendants contend that the doctrine of collateral estoppel precludes the plaintiff from relitigating issues related to her mental condition. This argument is based on the fact that two hearings were held in connection with the petition of Bellevue and the separate petition of the plaintiff.

A party is precluded from relitigating an issue that was decided, or necessarily decided, against her during a prior action or proceeding where the party had a full and fair opportunity to contest the determination (see e.g. Ryan v New York Tele. Co., 62 NY2d 494 [1984]).

In the case at bar, the Supreme Court, New York County (Gangel-Jacob, J.) conducted a hearing on the petitions on May 20, 2000. However, the court did not render a decision on the merits of the petitions on that date. Rather, the court, wishing to hear the testimony of Herbert, issued an "interim decision" denying the petitions, and adjourned the petitions to June 6, 2000.

At the June 6 hearing, Dr. Salzman represented that the plaintiff, while suffering from a mental illness and needing mental health care, did not require further involuntary hospitalization. Accordingly, the court granted the plaintiff's petition for discharge, never deciding whether there was reasonable cause to believe that the plaintiff suffered from a mental illness that required her continued retention. Therefore, given the absence of a decision, actual or implicit, by the hearing court regarding the propriety of the plaintiff's involuntary commitment, the plaintiff is not precluded from litigating issues related thereto (cf. Freemonde v City of New York, 1 AD3d 560 [2d Dept. 2003]; Krajca v City of New York, 305 AD2d 375 [2d Dept. 2003]; Porter v Westchester County Med. Ctr., 252 AD2d 518 [2d Dept. 1998]).

[*5]Individual Causes of Action

Several branches of the motion can be treated briefly. The cause of action for negligence is subject to summary dismissal. Given the gravamen of the plaintiff's complaint (i.e. wrongful detention and commitment), the plaintiff may not recover under general negligence principles, but rather is relegated to the remedies available under the cause of action for false imprisonment. Accordingly, that branch of the defendants' motion which is for summary judgment dismissing the cause of action for ordinary negligence as asserted against all defendants is granted (see Antonious v Muhammad, 250 AD2d 559 [2d Dept. 1998]; Higgins v City of Oneonta, 208 AD2d 1067 [3d Dept. 1994]; Brooker v Town of Tuxedo, 2003 WL 21976536 [App Term, 2d Dept. 2003]).

Similarly, those branches of the defendants' motion which are for summary judgment dismissing the causes of action for intentional and negligent infliction of emotional distress as asserted against all defendants are granted. A cause of action for either intentional or negligent infliction of emotional distress must be premised upon allegations of conduct "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'" (Sheila C. v Povich, 11 AD3d 120, 130-131 [1st Dept. 2004], quoting Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]; see e.g. Stauber v New York City Trans. Auth., 10 AD3d 280 [1st Dept. 2004]; Wilson v City of New York, 294 AD2d 290 [1st Dept. 2002]). Given the circumstances surrounding the plaintiff's involuntary commitment, the conduct of the defendants, as a matter of law, was not sufficiently outrageous to support such causes of action (see generally Wyllie v District Atty. of County of Kings, 2 AD3d 714 [2d Dept. 2003]; Navarro v Federal Paper Bd. Co., Inc., 185 AD2d 590 [3d Dept. 1992]). Additionally, there is a complete absence of evidence that the defendants intended to cause the plaintiff to endure emotional distress, or behaved recklessly (see 2 PJI3d 3:6, p 65 [2005]).

With respect to that branch of the motion which is for summary judgment dismissing the cause of action for defamation as asserted against all defendants, the evidence submitted by the defendants demonstrates that their statements are protected by the qualified privilege. The purportedly defamatory statements were made in good faith by the officers and the defendant doctors, upon a subject (i.e. plaintiff's mental state) on which the officers and doctors had legal and societal interests to speak, and the statements were made to persons with corresponding interests (see generally Grier v Johnson, 232 AD2d 846 [3d Dept. 1996]). No issue of fact exists with respect to whether the defendants abused the qualified privilege. Accordingly, that branch of the motion which is for summary judgment dismissing the [*6]cause of action for defamation as asserted against all defendants is granted. Turning to those branches of the motion which are addressed to the heart of the plaintiff's claims, the defendants made a prima facie showing of entitlement to judgment as a matter of law dismissing the causes of action for false imprisonment and violations of 42 USC § 1983, which, in this case, have essentially identical elements (see Ferretti v Town of Greenburgh, 191 AD2d 608 [2d Dept. 1993]), insofar as they are asserted against defendant City of New York ("the City").

The evidence submitted by the defendants, most notably the deposition testimony of Officer Rocanello, established that the plaintiff acted irrationally in repeatedly demanding that the officers look more carefully for Herbert because he was "little", accusing the officers of lying to her regarding Herbert's absence from the apartment, and behaving belligerently after the search was concluded. Moreover, the messages left by the plaintiff on Herbert's answering machine indicated that the plaintiff was considering harming herself. Accordingly, the defendants' evidence established that the officers' conclusion that the plaintiff was mentally ill and may cause serious harm to herself was reasonable, and, concomitantly, the officers had reasonable cause to send the plaintiff to Bellevue. Therefore, the evidence is sufficient to find as a matter of law that the police officers are entitled to the privilege afforded them by Mental Hygiene Law § 9.41 (see Higgins v City of Oneonta, supra; see also Thomas v Culberg, 751 FSupp 77, 81 n1 [SDNY 1990][plaintiff's pre-arrest behavior permitted conclusion, at summary judgment stage, that "no reasonable juror could find that reasonably competent officers would at least disagree on whether there existed cause to send [plaintiff] to Bellevue"]; see generally PJI3d 3:5 [2005][charge on false imprisonment with respect to privilege states, in relevant part, that "[r]easonable cause for the arrest existed if the facts and circumstances known to the defendant, or the information supplied to [her] before making the arrest, were such as to lead a reasonably prudent person to believe that the [specific] crime had been committed and that plaintiff was the person who had committed it."]; cf. Lynch v St. Lawrence Natl. Bank, 62 AD2d 1140 [4th Dept. 1978][material fact question present regarding issue of privilege of acts of defendant county's commissioner of social services; jury to determine whether reasonable basis existed for commissioner's decision to detain and confine plaintiff]).

In opposition to this prima facie showing, the plaintiff, who submitted no evidence contradicting Officer Rocanello's testimony concerning, among other things, the plaintiff's insistence that the officers look more carefully for Herbert because he was "little", and the number and content of the [*7]messages, failed to raise a triable issue of fact. The plaintiff's contention that a triable issue of fact is raised based upon the absence of evidence that the plaintiff acted violently, is unavailing. The fact that the plaintiff may not have exhibited physical violence in the presence of the officers was not dispositive, that is to say it did not preclude the officers from taking the plaintiff into custody pursuant to Mental Hygiene Law § 9.41 (see Higgins v City of Oneonta, supra; People v Yaniak, 190 Misc 2d 84 [Co Ct, Yates County 2001]; see also Mtr. of Carl C., 126 AD2d 640 [2d Dept. 1987]). Rather, the absence of physical violence was merely one factor the officers were to consider in arriving at their determination.[FN1]

With respect to those branches of the defendants' motion which are for summary judgment dismissing the causes of action for false imprisonment, medical malpractice and violations of 42 USC § 1983 insofar as they are asserted against Bellevue, defendant New York City Health and Hospitals Corporation ("NYCHH"), and the defendant doctors, a confinement pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice (see Tewksbury v State, 273 AD2d 376 [2d Dept. 2000]; E.K. v State, 235 AD2d 540 [2d Dept. 1997]; Ferretti v Town of Greenburgh, supra).

The defendants made a prima facie showing of entitlement to judgment as a matter of law dismissing the causes of action for false imprisonment, medical malpractice and violations of 42 USC § 1983 insofar as they are asserted against Bellevue, NYCHH, and the defendant doctors. The defendants submitted, among other things, the affirmation of a licensed physician, board-certified in psychiatry, which is to the effect that the defendant doctors did not depart from good and accepted psychiatric practice in [*8]admitting the plaintiff to Bellevue.

In opposition to the motion, the plaintiff submitted, among other things, the affirmation of a licensed physician, board-certified in psychiatry. This physician acknowledged that the defendant doctors acted in conformity with good and accepted psychiatric practice by retaining the plaintiff for a reasonable evaluation period (i.e. a few days). However, the physician opined, with a reasonable degree of medical certainty, that the defendant doctors departed from good and accepted psychiatric practice in concluding that the plaintiff suffered from paranoid schizophrenia, as the plaintiff did not exhibit signs or symptoms sufficient to satisfy the accepted diagnostic criteria for that mental illness. The physician also opined that there was insufficient medical evidence to support the defendant doctors' conclusion that the plaintiff presented an immediate danger to herself or others. The physician stated that crucial "information" regarding the plaintiff's mental health history, on which the doctors relied in arriving at their diagnoses, was obtained from unreliable collateral sources and was never confirmed. Additionally, the physician stated that Drs. Rubenstein and Castaneda, based on their lack of sufficient knowledge of the accepted diagnostic criteria for paranoid schizophrenia and inattention to the facts related to the plaintiff's hospitalization, failed to properly review Dr. Salzman's initial diagnosis.

Essentially, the physician concluded that the defendant doctors were correct in initially hospitalizing the plaintiff for a reasonable evaluation period, but that they erroneously decided to retain the plaintiff following this period. Accordingly, the plaintiff raised a triable issue of fact with respect to whether the defendant doctors departed from good and accepted psychiatric practice in retaining the plaintiff beyond a reasonable evaluation period.[FN2]

The plaintiff's cause of action for lack of informed consent must be dismissed. The plaintiff alleged that she did not consent to the treatment provided by the defendant doctors during her commitment (i.e. injections of medications). She does not allege that she consented to the treatment but that the consent was insufficiently informed. Thus, the essence of this claim is [*9]absence of consent (i.e. battery), not lack of informed consent (see Cross v Colen, 6 AD3d 306 [1st Dept. 2004]; Messina v Matarasso, 284 AD2d 32 [1st Dept. 2001]; Oates v New York Hosp., 131 AD2d 368 [1st Dept. 1987]; cf. Romatowski v Hitzig, 227 AD2d 870 [3d Dept. 1996]).

Conclusion

Based upon the foregoing, it is hereby

ORDERED that the motion of the defendants is granted to the extent that those branches which are for summary judgment dismissing the causes of action for negligence, intentional and negligent infliction of emotional distress, defamation, and lack of informed consent, as asserted against all defendants, are granted and those causes of action are dismissed in their entirety, those branches which are for summary judgment dismissing the causes of action for false imprisonment, violations of 42 USC § 1983, assault, and battery, insofar as asserted against defendant City of New York, are granted and those causes of action are dismissed as to defendant City of New York, and the remainder of the motion is denied; and it is further,

ORDERED that counsel for the parties are to appear before the court at 9:30 am on January 27, 2005 at the New York County Courthouse, 111 Centre Street, Room 572, Part 40D, for a pre-trial conference.

Date: January 24, 2005

Hon. Joan B. Carey, Acting JSC Footnotes

Footnote 1:Given that the officers' decision to take the plaintiff into custody was lawful, and that the use of force to restrain a mentally ill person to prevent the person from harming herself is privileged where, as here, there is no evidence that the force used was excessive (see 2 PJI3d 3:4, p 22 [2005]; see also Akande v City of New York, 275 AD2d 671 [1st Dept. 2000]), that branch of the defendants' motion which is for summary judgment dismissing the cause of action for battery insofar as it is asserted against the City is granted. Similarly, given the absence of evidence that the officers employed excessive force in taking the plaintiff into custody, that branch of the defendants' motion which is for summary judgment dismissing the cause of action for assault insofar as it is asserted against the City is granted (see Stein v State, 53 AD2d 988 [3d Dept. 1976]; cf Bennett v City of New York, 245 AD2d 254 [2d Dept. 1997]).

Footnote 2:Given the existence of a triable issue of fact with respect to whether the plaintiff was properly retained at Bellevue beyond a reasonable observation period, and whether the plaintiff was properly administered medication involuntarily, summary judgment on the causes of action for assault and battery is inappropriate (see Smith v St. Joseph's Hospital, Inc., 210 AD2d 36 [1st Dept. 1994]; Oates v New York Hosp., 131 AD2d 368 [1st Dept. 1987]).