On May 16, 1992, at 5:30 AM, Edward Rivera was involuntarily admitted at Kings
County Hospital Center, pursuant to the provisions of Mental Hygiene Law
§9.39. The morning before, his brother and his mother had brought him to
Brookdale Hospital Medical Center, after he had been acting violently. Mr.
Rivera had a history of mental illness for over 20 years; he suffered from a
bipolar disorder, which was treatable with medication, which he took daily. He
had previously been hospitalized for his condition on several occasions, usually
when he stopped taking his medication. He had been employed full time for 12
years as an elevator operator at the Pierre Hotel in Manhattan. His employment
continued despite his periodic hospitalizations.
At Brookdale, he was transferred to Kings County Hospital on the evening of May
15, 1992, whereupon he was transferred for treatment to Kingsboro Psychiatric
Center, where he was admitted at 9:15 AM on May 16, 1992. The evidence
indicates that from the time he arrived at Brookdale, he was in an agitated
state and had to be physically restrained at least twice.
The evaluation conducted at Kings County Hospital Center at 5:15 AM on May 16,
1992 includes notations that he had a history of assaultive behavior, that he
was manifesting aggressive behavior, and that he had threatened his family. The
detailed Screening/Admission Note completed by a psychiatrist at Kingsboro at
9:15 AM that morning concluded that he was increasingly bizarre in his behavior
at home, suffering bizarre delusions and threatening to his mother. Under the
heading "Thought Content Themes" it is noted that he was preoccupied with going
The progress notes in his medical chart indicate that from his admission at
Kingsboro until 7:30 AM the next morning, his behavior presented no problems,
except that between midnight and 2 AM on May 17 he was agitated, at which time
he was administered medication which had a positive effect. The progress notes
for 2 PM to 8 PM on May 17 indicate agitated behavior (fully described,
On the evening of May 17, 1992 he injured himself when he fell on his head in a
bathroom. As a result, it became necessary to have him taken to the Kings
County Hospital for emergency medical treatment. He was escorted there by a
therapy aide, who remained with him while he received medical treatment. He and
the aide were brought there by van, which was to return to pick them up when
notified that they were ready to return. Sometime after midnight, after Mr.
Rivera had been treated, and while awaiting the van, Mr. Rivera escaped from the
presence of the therapy aide. Shortly thereafter it was discovered that he had
gone to the roof of a nearby building and either jumped or fell to his
According to the testimony of the therapy aide, Michael
he was assigned to escort Mr. Rivera to Kings County Hospital. He testified
that they were taken there in a van driven by a safety officer, who dropped them
off. Mr. Kong remained with Mr. Rivera while he was treated. Between 11 PM and
midnight Mr. Kong called to have the van pick them up. While waiting inside the
hospital, Mr. Rivera wanted to walk around, and Mr. Kong told him to sit down,
which he did. At some point Mr. Kong thought he saw the van outside; he walked
outside with Mr. Rivera, holding his hand. When he saw that the van was not
from Kingsboro Psychiatric Center, he started to return to the hospital building
with Mr. Rivera. Mr. Rivera pulled away from him and started running. Mr. Kong
testified that he called to him and ran after him for about half a block, but
was unable to keep up with him; he said that Mr. Rivera had run across the
street into traffic. At that point he began to return to the hospital, he saw
the van, got into it and attempted, unsuccessfully, to find Mr.
The claimant seeks to hold the State liable for the death of Edward Rivera,
principally on the theory that during the six hours immediately before he was
taken to Kings County Hospital for medical treatment he evinced behavior
suggesting there was a risk he would escape while outside the facility, and the
failure of the psychiatrist on duty to note that he was an escape risk, and to
take appropriate steps to prevent his escape, was a deviation from good medical
practice, which was the proximate cause of Mr. Rivera's
It is the defendant's position, on the other hand, that the psychiatrist's
conclusion that Mr. Rivera was not an escape risk was the result of a
professional medical judgment, which cannot provide the basis for
The specific behavior to which the claimant points as evidence that Mr. Rivera
was an escape risk is reflected in the progress notes in his medical chart, for
the period from 2 PM to 8 PM on May 17, 1992. It was noted in his chart that
Mr. Rivera stated he was discharged, and was constantly going down to the front
door (2 PM to 4 PM); he stated "I am leaving" and was banging on all the doors;
he stated he had to take clothes to his son, and became agitated when he was
told he could not leave (4 PM to 6 PM); he ran to the front door hitting it
trying to get out (6 PM to 8 PM).
Prior to Mr. Rivera's transfer to Kings County Hospital at 8:45 PM, he was
examined by Dr. Benito Manuel, an attending psychiatrist on duty at Kingsboro
Psychiatric Center. Dr. Manuel, who had worked at Kingsboro for over 12 years,
completed the Psychiatric Information portion of an Inter Hospital Referral
Form. He entered "Bipolar Disorder manic type" as the Diagnosis. He noted
Current Legal Status as "939."
He checked a box indicating that Mr. Rivera was incompetent to sign informed
consent. Under the heading "brief current mental status" he wrote: "agitated,
uncooperative, poor insight/judgment, delusional thinking." He checked a box
indicating that Mr. Rivera was a "Management Problem" and under that same
heading where five boxes appear beside the word "specify" he checked one box:
"Aggressive/Assaultive" and wrote next to it "(toward mother)." He did not
check any of the other boxes, including one which said "Escape
According to his testimony,
while Dr. Manuel did not specifically recall his examination of Mr. Rivera, he
said that he would have based his entries on the form on an examination of Mr.
Rivera at the time, and on a review of the medical chart. When questioned about
the aforementioned entries in the medical chart, he stated that none of them
would have necessarily led him to conclude that Mr. Rivera was an escape risk,
except for the one concerning "running to the front door and hitting it, trying
to get out," which he said he would possibly consider as an escape
While he testified that he would determine whether more than one therapy aide
was necessary to accompany a patient, he also said that an escape risk would not
involve sending a second person. At another point in his testimony, however, he
said that had he indicated that a patient was an escape risk, a second therapy
aide would have been assigned to accompany him and that he would have been
placed in a camisole, which would keep a patient still.
Dr. Manuel testified that he had conducted this type of examination many times
before, and never had occasion to check the box for escape risk.
Dr. Mark Rubinstein, a Board certified psychiatrist, and for nearly 20 years an
assistant attending psychiatrist at New York Hospital, and clinical assistant
professor of psychiatry at Cornell University, testified on behalf of the
It was his opinion, based upon his review of Mr. Rivera's medical records at
Brookdale, Kings County Hospital and Kingsboro Psychiatric Center, and of the
deposition testimony of Dr. Manuel, Mr. Kong and Nurse Joyce Brown, that Mr.
Rivera was clearly an escape risk at the time he was transported for emergency
medical treatment. Dr. Rubinstein testified specifically about the progress
notes covering 2 PM to 8 PM on May 17, 1992, with reference to the comment in
the Screening/Admission Note (supra), that Mr. Rivera was preoccupied with going
home, opining that "it is a virtually monothematic trend in his thinking and
verbalizations. * * * This is part of his agitated, psychotic, manic state."
He testified that from his review it was clear that Mr. Rivera was agitated and
psychotic, and that his condition had steadily deteriorated. He said that it
was his opinion that the "entire clinical picture" which he described as
"progressively deteriorating, dangerous, chaotic and disruptive, decompensating
course of behavior, the bizarre, delusional, agitated, escape-oriented behavior"
was not considered by Dr. Manuel, when he examined Mr. Rivera.
Although he testified at length concerning the treatment Mr. Rivera received,
the crux of his testimony was that Mr. Rivera's escape from Mr. Kong, and his
ensuing death, resulted from Dr. Manuel's failure to conduct a proper
evaluation. Had he done so, according to Dr. Rubinstein, Dr. Manuel would have
concluded that Mr. Rivera was an escape risk, and he should have administered
more medication to calm him down so that he could have been transported by one
therapy aide; or he should have assigned two therapy aides to accompany him.
Dr. Rubinstein also stated that Dr. Manuel could have used some form of physical
restraint on Mr. Rivera.
Although "the line between medical judgment and deviation from good medical
practice is not easy to draw" (
Topel v Long Island Jewish Medical Center
, 55 NY2d 682, 684), the
guidance offered by appellate authority requires the conclusion that the record
herein is insufficient to support finding that the failure to note that Mr.
Rivera was an escape risk was "more than a mere error in professional judgment"
(Snow v State of New York
, 98 AD2d 442, 447, affd
64 NY2d 745),
for which liability may not attach.
Upon the record, it cannot be said that "there was something less than a
professional medical determination."
Bell v New York City Health & Hospitals Corporation
, 90 AD2d 270,
282; see, also, Pigno v Bunim
, 43 AD2d 718, affd
35 NY2d 841. In
the face of the notations he made, which were in part based on an examination of
Mr. Rivera, and of his testimony, there is insufficient evidence to conclude
that Dr. Manuel did not consider the aforementioned entries in Mr. Rivera's
medical chart in reaching his conclusion that Mr. Rivera was not an escape risk
at the time he was taken for emergency medical
The record herein does not support finding "a failure to exercise any
professional judgment" (
Snow v State of New York, supra
, at 447), or that there was "almost
casual consideration" of the situation (Clark v State of New York
AD2d 616, 617), or that Dr. Manuel "failed to exercise any professional judgment
whatsoever" (Larkin v State of New York
, 84 AD2d 438, 445). See,
also, Huntley v State of New York
, 62 NY2d 134, Herold v State of New
, 15 AD2d 835, Cohen v State of New York
, 51 AD2d 494,
41 NY2d 1086, Amadon v State of New York
182 AD2d 955, lv
81 NY2d 701.
The essence of the claimant's argument that Dr. Manuel did not make an
assessment based upon the information available is the view of Dr. Rubinstein
that the strongest indication that Dr. Manuel did not make a medical judgment is
that the only judgment which was possible was the one he did not make. In the
end, therefore, the record reflects a difference of opinion between Dr. Manuel
and Dr. Rubinstein; such difference of opinion does not support liability.
See, Darren v Safier,
207 AD2d 473, Ibguy v State of New York
AD2d 510. Dr. Rubinstein's testimony that there was not one particular action
which should have been taken to prevent Mr. Rivera's escape, also supports the
conclusion that Dr. Manuel's determination of the conditions under which Mr.
Rivera was to be transported from Kings Psychiatric Center was an exercise of
professional medical judgment.
Nor is there a basis in the record for finding the defendant liable on a theory
of ordinary negligence, on the part of either Nurse Joyce Brown or Mr. Kong, the
therapy aide. The testimony
of Nurse Brown, who was on duty at the time as supervising registered nurse,
that it was not within her authority to determine the number of aides to
accompany a patient upon transfer, is
The negligence the claimant seeks
to attribute to Mr. Kong in failing to apprehend Mr. Rivera requires inferences
which are insufficiently supported by the record. There is no basis to conclude
that their self described actions constituted violations of the Kingsboro
Psychiatric Center Facility Policy/Procedure Manual, introduced into evidence as
Exhibit 6, as urged by the claimant.
All motions made at trial and not specifically ruled upon are denied.
In accordance with the foregoing, the claim is dismissed. The counterclaim is
dismissed as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.