Williams v State of New York

[*1] Williams v State of New York 2009 NY Slip Op 51103(U) [23 Misc 3d 1135(A)] Decided on May 4, 2009 Ct Cl Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 4, 2009
Ct Cl

Jill Williams and Leroy Williams, Claimants,

against

The State of New York, Defendant.



94695



For Claimants:

McGarry & Simon, Esqs.

by: William A. Simon, Esq. of Counsel

For Defendant:

Andrew M. Cuomo, Attorney General

by: Ralph Bavaro, AAG

Alan C. Marin, J.

This is the decision following the trial of the claim of Jill Williams.[FN1] On the morning of July 7, 1995, Ms. Williams, having gone out for coffee, was walking along Riverside Drive near her home in upper Manhattan when she was struck in the leg by a bottle thrown by Tony Joseph, a former patient at the Manhattan Psychiatric Center (MPC). Mr. Joseph had left MPC, without authorization, nearly two years before on July 25, 1993.

MPC occupies part of Ward's Island, which is situated in the East River between Manhattan and Queens. Ward's Island, besides any vehicular access, is connected to Manhattan by a footbridge. As of July of 1993, Joseph had been allowed outside Manhattan Psychiatric's buildings, but required escort by staff, i.e., he had "escorted grounds privileges." The grounds or yard contained a clinic, a chapel and a courtroom.

On the morning of July 25, 1993, Joseph was escorted to the chapel by therapy aide Lydia [*2]Allen. Ms. Allen's description of what happened is contained in her entry to the progress notes in Joseph's file (cl exh 13 [FN2]):

Pt. was escorted to church this A.M. [with this] writer. Where he sneaked out after he asked to use the bathroom. Safety was notified (s/o Mercado). Staff and s/os [FN3] searched the Island [with] no luck. Pt. should be placed on L.W.O.C. at 10 pm if he does not return by then.

"L.W.O.C." stands for leave without consent, and a patient who left MPC without permission would be classified as either having left without consent or escaped. When a patient escaped, the police had to be notified. Taking the stand at trial was Dr. Joel Silbert, a clinical psychologist at Manhattan Psychiatric from 1975 until his retirement in May of 2007, and its Director of Quality Assurance from 1988 until 2007. Dr. Silbert stated that he did not believe that there was a policy that required the hospital to notify the police in the event a patient went LWOC, "but I believe that it was practiced at the time." He added that, "there's no obligation for that hospital to make . . . the notification regarding an LWOC, but occasionally police were helpful in locating missing persons . . ."

***

Dr. Silbert noted that Manhattan Psychiatric, which is under the aegis of the Office of Mental Health (OMH), is a civil psychiatric hospital, not a forensic one. Forensic hospitals are also referred to as secure facilities, and Silbert indicated that they are staffed differently, with security hospital treatment aides, rather than the mental hygiene therapy aides that work at civil hospitals. Dr. Silbert explained that:

Forensic facilities house patients who are committed under Criminal Procedure Law [CPL] by and large. There's some exception to that, but patients in forensic facilities are there because either they've been found not guilty by reason of insanity or mental defect of serious crimes or have been charged with serious offenses, generally violent offenses, and have been found to lack capacity to assist in their defense at trial and are at that facility to be restored to capacity. Those are two criminal orders of retention. There are also a small number of patients transferred to forensic facilities because of their violence in the civil facility which couldn't be managed in the civil facility.

Civil hospitals have patients who are there under the Mental Hygiene Law, and those are patients who are there voluntarily, under civil court retention, or under a two physicians certificate. There's a small number of patients, who I mentioned earlier, who are retained on CPL orders of observation, but for those patients the crimes that they're accused of are minor crimes, misdemeanors, and charges are dropped, and they are generally committed to civil status.

The two-physician certificate refers to the procedure for an involuntary admission to a [*3]civil psychiatric facility. Mental Hygiene Law §9.27.[FN4] Patients can be classified as either on involuntary or voluntary status. Dr. Alan Tuckman, claimant's expert forensic psychiatrist testified that:

A voluntary patient is someone who has either signed themselves in or have been converted subsequently to a status where they have the same obligations and rights of an involuntary patient except, if they wish to leave the facility, they can give a time, I believe it's forty-eight or seventy-two hours notice, and it is then up to the hospital to either allow them to leave or convert them to involuntary status, and they have those days in order to do that.

Joseph had been admitted to MPC on a court retention order pursuant to Mental Hygiene Law §9.33. Subsequently, Joseph was converted from involuntary to voluntary status; claimant does not dispute the appropriateness of such classification. In April of 1993, Joseph was granted "escorted"grounds privileges.

Ms. Williams does not dispute the determination that allowed Tony Joseph escorted grounds privileges. But she alleges that such supervision was negligently carried out, and that given Joseph's history, his leaving the Manhattan Psychiatric Center on July 25, 1993 should have been classified as an escape, rather than a leave without consent.

The testimony at trial indicated that there were no written standards for how to escort a patient; there was a general practice testified to by Dr. Silbert. As for when a patient needed to use the bathroom, Silbert noted, "Regrettably, at that period of time, I do not think that there was specific attention on that." Dr. Silbert added that people were sensitive to invading a patient's privacy, and were "very cautious about observing a patient in the bathroom, especially when there's a gender difference." But Silbert agreed that standing outside the bathroom door was recommended policy. Dr. Tuckman testified that the therapy aide should check the bathroom to make sure that there was not another means of egress, and that whatever actually occurred, Ms. Allen "broke the rule" in the way she escorted Joseph.

Ms. Allen, the therapy aide, died some time before trial; no deposition of her was taken by claimant. Dr. Tuckman testified that Joseph had left OMH facilities numerous times prior to July 25, 1993, but agreed that he often returned within a day or two and that sometimes he went to his parents' residence.

Testimony was elicited that it was relatively easy for a patient to simply walk out of MPC and cross the bridge to Manhattan. Dr. Silbert testified as to MPC's lack of perimeter security, although responsibility therefor was not developed at trial:

The footbridge is within the confines of the city park, and there was a chain link fence separating the hospital's campus from the city park which could prevent people from going to the footbridge, but that fence was frequently in disrepair.

Silbert indicated that no personnel were stationed at the Ward's Island entrance to the footbridge to keep patients from leaving the island. The following exchange was not disputed: [*4]

Q. Would it be fair to say that in 1993 and the years, one or more, on either side of that, patients going missing from the facility was a common occurrence?

A. Yes, it was.

Joseph had a history of violence prior to the incident with Jill Williams, including [FN5]: — He was convicted of Attempted Assault in the Second Degree in connection with a September 26, 1982 attack on a mother and her 16-month old child (within a few blocks of where he attacked claimant), for which he was sentenced to five years probation (see cl exhs 6 and 7).— He was convicted of Assault in the Second Degree in connection with an April 8, 1986 attack on a nurse at MPC, for which he was sentenced to two to four years imprisonment (cl exhs 8 and 9).[FN6]

His records as a patient in OMH facilities contain a number of instances of threatening and assaultive behavior against patients and staff. For example, see pp. 416 & 423 (tab 1) and 759 (tab 2) of cl exh 14 for incidents in the facility. He is consistently described in OMH records as having a history of assaultive behavior. See, e.g., pp. 30, 39, 41 and 44 (tab 1); 681 and 690 (tab 2); and 150 (tab 4), of cl exh 14.

***The classification of a missing patient is governed by §QA-520 of OMH's Official Policy Manual (def exh A). Page 2 of this section defines a "Missing Patient - Escape" as "a patient who is missing and meets one of the following criteria": (i)S/he is considered likely to be dangerous to self or others.(ii)S/he is judged to be unable to care for self and is endangered.(iii)S/he is currently committed under a court order pursuant to Criminal Procedure Law, Correction Law, or Family Court Act; or was transferred from the Division for Youth in accordance with Executive Law Section 517.(iv)S/he has criminal charges pending in court and there is a warrant for his/her arrest upon his/her release from the facility.

A patient who is missing and does not meet any of the above criteria is classified as on "Leave Without Consent (LWOC)." With regard to the escape criteria, Tony Joseph is not comprehended by (iii) or (iv), and no information was submitted that he was unable to care for himself (item (ii)). Given the evidence, there is some difficulty grasping why Joseph is not "considered likely to be dangerous to . . . others" per item (i).

Defendant maintains that a treatment team, which included a psychiatrist, made an evaluation that Joseph did not satisfy item (i) and is thus insulated from second-guessing by a trier of fact.[FN7] Such conclusion, defendant argues, is based on the fact that a missing patient [*5]cannot be classified as an escape or an LWOC without such an evaluation, and inasmuch as Joseph's record contains the LWOC classification, he must have undergone a (sufficient) evaluation. However, no direct proof is supplied: there is no documentation that he was evaluated by the treatment team, nor do we have any testimony from a member of the treatment team to that effect. Further, the entry by therapy aide Lydia Allen may well suggest that Joseph's classification was done in a pro forma manner ("Pt. should be placed on L.W.O.C. at 10 pm if he does not return by then.").

Assuming the LWOC classification was erroneous and/or was not made pursuant to an evaluation, would the police have apprehended and returned him? If he had returned even as an involuntary admission, that status readily converts to voluntary. Claimant has a difficult hurdle to surmount because it must prove proximate cause to implicate liability on the part of the State. Dr. Tuckman did testify as follows:

[S]omebody like this patient, numerous psychotic episodes leading to hospitalizations, numerous episodes of absconding from the hospital and numerous episodes of assaults on strangers and staff, the likelihood of this man being violent again is almost a hundred percent . . . [especially] without supervision, without monitoring, without medication and without a support system . . .

With that said, the failure to prevent Joseph from sneaking out of MPC on July 25, 1993 or the failure to classify such elopement as an escape does not support a legal nexus to his assault on Ms. Williams nearly two years later. The Court is aware of no precedent which would offer support for a finding of proximate cause under the subject fact pattern. Compare Dunn v State of New York, 29 NY2d 313, 327 NYS2d 622 (1971); Boland v State of New York, 263 AD2d 801, 693 NYS2d 748 (3d Dept 1999); Williams v State of New York, 308 NY 548 (1955); Haddock v City of New York, 75 NY2d 478, 554 NYS2d 439 (1990); Steel v State of New York, 11 AD3d 673, 782 NYS2d 924 (2d Dept 2004).[FN8]

What happened to Jill Williams was dreadful and frightening. However, without a showing of proximate cause, claimant is unable to prevail. Therefore, the claim of Jill Williams and Leroy Williams (no. 94695) is dismissed, and the Clerk of the Court is directed to enter judgment accordingly.

New York, New York

May 4, 2009

ALAN C. MARIN

Judge of the Court of Claims Footnotes

Footnote 1: Inasmuch as her husband's claim is derivative, references to "claimant" or to "Williams" denote Jill Williams.

Footnote 2: On the document, Tony Joseph is referred to as "Joseph Benony," another of several names he used at various times.

Footnote 3: "S/os" presumably means safety officers.

Footnote 4: See for example, New York City Health and Hospitals Corp. v Brian H., 51 AD3d 412, 857 NYS2d 530 (1st Dept 2008).

Footnote 5: See his entire DCJS record ("Rap Sheet"), which is claimant's exhibit 5.

Footnote 6: See also exh 14, Tab 1, pp 27 & 204.

Footnote 7: Schrempf v State of New York, 66 NY2d 289, (1985); Amadon v State of New York, 182 AD2d 955 (3d Dept 1992), lv denied 81 NY2d 701, 594 NYS2d 715 (1992).

Footnote 8: For the Steel facts see, Steel v State of New York, 6 Misc 3d 1030(A) (Ct Cl 2005).