Maldonado v State of New York

[*1] Maldonado v State of New York 2010 NY Slip Op 51023(U) [27 Misc 3d 1233(A)] Decided on May 20, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2010
Ct Cl

Maritza Maldonado, by her Parent and Legal Guardian, JULIA MALDONADO, Claimant,

against

The State of New York, Defendant.



112910



For Claimant:

Arlene McCrea, Esq.

For Defendant:

Andrew M. Cuomo, Attorney General

by: Cheryl Rameau, AAG

Alan C. Marin, J.

This is the decision following the trial of the claim arising from a physical confrontation Maritza Maldonado, a patient at Brooklyn Developmental Center, had with another patient, during which the latter bit off a portion of Ms. Maldonado's ear. The Center is a facility of the State Office of Mental Retardation and Developmental Disability.

Claimant - - such term will be used here to refer to Maritza, not her mother and guardian, Julia Maldonado - - was unable to be deposed or to testify at trial. What we do know about the events of January 15, 2005 is drawn from the testimony of two employees of the Developmental Center: Colette McKay and Beryl Akenbor.

Ms. Akenbor, with the title of developmental aide, has worked at Brooklyn Developmental Center for 25 years, most of that time on Wing 211, where she was at the time of the incident. That unit then had about 20 female patients. Akenbor testified that she was working an overnight shift that went from 11:15 p.m. to 7:15 the next morning. She and her fellow aides would wake the patients in the morning, see that they wash, brush their teeth and also "take care of their clothing."

Ms. Akenbor recalled that at some time about 6:30 a.m., claimant and Rochelle Morales were involved in a discussion just outside the laundry room about who would wash their clothes first: [*2]

Q. Did the discussion turn into an argument?

A. Yes.

Q. Did the argument become heated?

A Yes.

Akenbor testified at that point she separated the two and sent them "in different areas," noting that Maldonado and Morales do not reside in the same area. No other facility employee was on the scene at that time, according to Akenbor. The aide stated that she had not heard any threats, and did not call for backup assistance, pointing out that this kind of argument was a usual occurrence on Wing 211.

The two women returned to the laundry room area at about 7 a.m., but Akenbor did not notice them until things had escalated. Akenbor said she was standing at the office door, some 15 to 30 feet away:

"I observed they [were] already in a physical altercation . . . They were fighting. By this time, they [were] on the ground and they [were] in an entanglement, and I was trying to get Maldonado and Rochelle to release each other. So, I was taking - - trying to take their hands off of each other."

Collete McKay, also a developmental aide, worked from 7 a.m. to 3:30 p.m., so that the initial argument occurred before Ms. McKay came on duty. But as for their second encounter, McKay recalled that the two women were arguing in front of the door to the laundry room about who was first, and described such as nothing out the ordinary:

"[I]t's an [everyday] occurrence to me, so I don't know what you would consider loud, but it was just a regular argument, because I'm so used to it, it's every day."

She would not describe the argument as "heated." McKay was with another staff person, who no longer works there, both having just arrived at the Center to start their day shift. McKay recalls that before they had time to take their coats off, the two aides stood between Rochelle and Maritza.[FN1] "We had them separated [but] things happen fast in there . . . They were still arguing when we went in between them . . . it wasn't that serious. It was just a regular argument." McKay did not hear anything that she regarded as a threat, it was just, "I was first, I was here first, no, my clothes are in there already. You know, that type of thing."

McKay recalled that she and the other staffer were each holding onto one of the women and then, "we all hit the floor, and then we just got them apart and when Maritza stood up all we saw was blood dripping down her shoulder."

***

No showing was made, nor argument advanced, that Morales and/or the claimant were on or should have been on a heightened supervisory level of one staff member to one patient; the [*3]determination of such level is a medical judgment. Topel v Long Island Jewish Medical Center, 55 NY2d 682 (1981). Without this one-to-one level, the staff at Brooklyn Developmental Center was not under a duty to continuously monitor its patients. Rella v State of New York, 117 AD2d 591 (2d Dept 1986); Mochen v State of New York, 57 AD2d 719 (4th Dept 1977).

What is required is reasonable care as measured by the patient's capacity to provide for her own safety. Freeman v St. Clare's Hosp. & Health Center, 156 AD2d 300 (1st Dept 1989); Dawn VV v State of New York, 47 AD3d 1048 (3d Dept 2008). As for causation, claimant must prove that it was reasonably foreseeable that an injury could occur, but does not have to show precisely how it came about. Harris v State of New York, 117 AD2d 298 (2d Dept 1986).

We heard evidence going to the physical and mental condition of Ms. Maldonado, who was 42 years old at the time, although not perhaps fully or directly on her capacity to provide for her own safety. Compare with Dawn VV, supra, in which the patient's mental age had been elicited.

In the history portion of medical records from the Columbia University School of Dental and Oral Surgery, the inquiry regarding any existing diseases, condition or problem, is filled out as follows: "Mental Retardation, seizure disorder, Bipolar disorder, self-injurious behavior" (Cl exh 3, question no.14). The March 21, 2008 chart note states that the patient was accompanied by her mother and an attendant from the facility and says that treatment was "Discussed w/mother." The chart also notes that the patient was very cooperative.

Dr. Nasreen Mirza, in these medical records, described Maritza's condition the same as described in the medical history except that: i) it is mild mental retardation; ii) the seizure disorder is controlled; and iii) "schizoaffective disorder" is added.[FN2] Dr. Candice Zemnick of Columbia University, who saw Maritza six or seven times (see below), testified that "normally she's pretty happy, she's coloring . . ."

Julia Maldonado, claimant's mother, took the stand and testified that Maritza was receiving treatment for schizophrenia, depression and mental retardation, and that she had epilepsy and panic attacks. Her mother explained that she brings Maritza home "about twice a month, sometimes once a month for four or five days."

Neither McKay nor Akenbor were aware of any incidents between Morales and the claimant before January 15, 2005. Claimant's exhibit 1 contains the Brooklyn Developmental Center's records of Ms. Morales as limited by this Court's August 21, 2008 Order to information relating to her violent actions before the subject incident. There are some twenty violent actions in just over a three-year period before the altercation with Maldonado, including four in the eight months previous: May 19, June 19, June 28 and October 31, 2004. The June 28, 2004 entry reads: "It is reported that this pt stomped other resident on the right side of the face." (Cl exh 1, p. 704).[FN3] [*4]

***

Was the fight between Maldonado and Morales at 7 a.m. the kind of "sudden incident, which [even] closer supervision might not have prevented"? Donald v State of New York, 158 AD2d 366 (1st Dept 1990). This was the second confrontation between the two women in thirty minutes. Even so, with regard to the 7 a.m. confrontation, McKay testified that she and another aide got between the two women while they were arguing.[FN4]

Whether the facts here implicate liability is a close call. But of significant weight is that an encounter between claimant and Morales occurred within half an hour at the same place and over the same issue, and that Morales had a documented history of physical aggressiveness. Moreover, while two staff aides were, according to Ms. McKay, positioned between the patients at 7 a.m., bear in mind that it was Ms. Akenbor's intent at 6:30 a.m. that the women be separated and sent back to their respective rooms.

While Ms. Akenbor and Ms. McKay came across as dedicated employees who cared about their charges, this lapse in supervision and the foreseeable consequences impute the defendant's liability. The Court therefore finds the defendant State of New York fully liable for the injury that Maritza Maldonado suffered as a result of her altercation with Rochelle Morales.

Damages

Claimant was taken to Bellevue Hospital on the day of the incident, and was discharged after three days. The discharge summary states that Maldonado was "admitted for right ear partial avulsion due to human bite at group home. Ear remnant trimmed and skin oversewn." There is a note two years later, dated March 22, 2007, and signed by Dr. Lee Ann Klausner-McLaughlin and Dr. Bich Thuy Le for a consult on reconstruction, describing the injury as a "loss of posterior vertical half of auricle." The record states that she had been to the clinic "numerous times" to discuss treatment options. After noting possible difficulties with a staged reconstruction because of Maritza's circumstances, the doctors concluded that, "The best option may be a prosthesis or nothing as she has a relatively normal frontal view."

Claimant was last seen at Bellevue on May 31, 2007, when it was noted that she had "no pain issues at this time," and was referred to Columbia University. The same comment on lack of pain was entered consistently in the Bellevue consults from January 21, 2005 through March 22, 2007.[FN5] (The Bellevue Hospital records are claimant's exhibit 2).

Ms. Maldonado was initially seen at Columbia University by Dr. Candice Zemnick on March 21, 2008 (Cl exh 3). Dr. Zemnick, who fabricated and affixed a prosthesis for claimant's right ear, is a maxillofacial prosthodontist, a speciality which comprehends the exterior aspect of the ear. [*5]

Dr. Zemnick, in her testimony, described Maritza's right ear as missing "both the helix and antihelix . . . up to the lobule or the pinna area," and stated that, "she's not missing her entire ear . . . only [a] part." Without an illustrative photo or diagram in evidence, it is difficult to envision precisely the condition of Martiza's ear. The Bellevue note cited above described the right ear as having a "relatively normal frontal view." The log entry for January 15, 2005 in the Developmental Center's records for Ms. Morales describes it as a "large" piece of ear - - which to the extent it simply goes to how such is perceived by the layperson, is relevant to the effect on appearance.

The Court credits the aforementioned Bellevue consults, the first less than a week after the incident, to conclude there was no resulting pain. In addition, a July 29, 2005 Bellevue consult provided that the " patient denies any symptoms." Dr. Zemnick, who was called to the stand by claimant, was asked no questions about pain, although she did mention sores in the area, which will be discussed below in the context of the prosthetic process. Julia Maldonado did not reference any pain medication that her daughter was given.

Similarly, there was no evidence adduced on hearing loss. Dr. Zemnick was not an audiologist, and thus did not offer an opinion thereon. No expert on hearing loss was put on the stand, and no lay witness familiar with claimant could point to any change in her ability to hear, except her mother's ambiguous reference to Maritza sometimes covering her ears.

In any event, the prosthetic process had to be disconcerting for Maritza. While Dr.

Zemnick described Maritza as eventually pleased with the aesthetics of the result, the prosthesis was to be worn only during the day and taken off at night - - and Maritza (along with Developmental Center staff) had to be trained how to affix and remove the prosthetic. As Dr. Zemnick stated, sores could develop. The prosthetic went missing, or was lost, twice; claimant is on her third prosthesis.

Dr. Zemnick testified that she was to have been called if there were any problems, and that as of the time of her testimony, she had not heard from the Maldonados for a year and half. So far so good, but Dr. Zemnick also indicated that the longevity of the prosthesis is three to five years (due to change in color from exposure to sunlight).

***

In sum, Maritza Maldonado has the permanent loss of part of her right ear, a prosthetic that must be affixed and removed on a daily basis - - however, no loss of hearing or pain.[FN6] She, of course, went through the pain and fear of the biting and the immediate aftermath, including three days of hospitalization and following discharge, some 15 visits to Bellevue Hospital and Columbia University.

In view of the foregoing, this Court awards claimant $60,000 for her past pain and suffering and $90,000 for her future pain and suffering, and the Clerk of the Court is directed to enter judgment for $150,000.

To the extent that claimant has paid a filing fee, it may be recovered pursuant to subdivision two of §11-a of the Court of Claims Act. [*6]

New York, New York

May 20, 2010

ALAN C. MARIN

Judge of the Court of Claims Footnotes

Footnote 1: Ms. Akenbor had testified that other staff were there to assist her at 7 a.m., and she mentioned McKay.

Footnote 2: The two pages after the Consent Form, claimant's exhibit 3.

Footnote 3: The other incidents were recorded on: November 15, 2001; January 26, 2002; August 22, 2002 (the day of the month and the year are barely legible); October 10, 2002; November 11, 2002; November 6, 2002; December 17, 2002; December 26, 2002; December 29, 2002; January 25, 2003 (the day of the month is barely legible); June 30, 2003; August 30, 2003; September 22, 2003; September 27, 2003; and January 16, 2004.

Footnote 4: See Goble v State of New York, 123 AD2d 664 (2d Dept 1986), where the therapy aide positioned himself at such a distance that he could not prevent one patient from striking another with a chair.

Footnote 5: The other consults stating there were no pain issues were dated: February 3, 2005; January 5, 2006; February 2, 2006; May 4, 2006; July 6, 2006 and October 5, 2006. This was stated on every Bellevue consult following claimant's January 18, 2005 discharge, except apparently that of July 29, 2005.

Footnote 6:Claimant is 48 years old; the average life expectancy of all women of such age is 33 years (PJI Vol IB, App A, Table 3).