This is claimants' motion for summary judgment on liability. In the underlying
claim, it is alleged that because of defendant's negligence, Donald Johnson, a
patient at Manhattan Psychiatric Center ("MPC"), died as a result of a November
12, 1996 assault by another patient, Jermaine Clare.
Claimants rely upon the final report of the New York State Commission on
Quality of Care for the Mentally Disabled (the "Commission"), dated June 30,
1997, in which it was found following investigation, inter alia: that
there was forewarning that Mr. Johnson was at risk as he had been involved in a
previous incident with Mr. Clare earlier in the day; that his death could have
been prevented had the staff taken appropriate steps to increase the level of
observation on one or both patients; and that it was a lapse in judgment for the
ward psychiatrist to fail to assign increased supervision to the two patients.
It is stated in the report that the underlying investigation "included a review
of the MPC clinical records of [both patients], a review of the MPC Special
Investigation Report of this case and interviews with several MPC administrative
staff. Commission staff also reviewed the November 12, 1996 Emergency Service
treatment record for Mr. Johnson's care at Metropolitan Hospital." See exhibit
B to the March 27, 2001 sic] affirmation of Henry Ramirez, Esq. (the "Ramirez
Claimants have also submitted MPC's July 25, 1997 response to the Commission's
report, which contains statements that claimants characterize as admissions,
such as: "[T]he conclusions of our investigation about the psychiatrist's role
and lapses are in accord with your findings."; "[W]e believe that [the MHTA] was
. . . responsible because of her failure to monitor the hallway crossroads; and
that the nurse was responsible for failing to ensure the monitoring was
occurring."; "We believe that the lapses which eventuated in this incident are
largely those of individuals, not systems. . . " See exhibit B to the Ramirez
Defendant has submitted the May 24, 2002 affidavit of Gary O'Brien, chair and
chief executive of the Commission (the "O'Brien Aff."), who states that the
Commission is a "watchdog" agency created by the Legislature in 1977, the
purpose of which is to oversee the quality of care provided to individuals
served by the mental hygiene system. He explains that the Commission is
authorized to conduct investigations, including a review of the circumstances of
the death of a patient which was related to his or her care and treatment, and
to report its recommendations. See ¶¶4-6 of the O'Brien Aff.
Claimants have cited no authority for the proposition that the conclusions of
the Commission (or of MPC) on the ultimate liability issues in this case –
e.g., the legal conclusion as to whether Mr. Johnson's death could have
been prevented – should be substituted for those of the Court. In fact,
the case law is to the contrary. See, e.g., Bogdan v Peekskill
Community Hospital, 168 Misc 2d 856, 642 NYS2d 478 (NY Sup 1996), in which
it was noted that conclusions of law in public investigative report have
traditionally been found inadmissible.
In addition, such conclusions, as well as any other findings, may be based upon
hearsay or otherwise be inadmissible.
bases ultimately rest on underlying investigation that is privileged under
Mental Hygiene Law §§29.29 & 45.15(d) and Education Law
§6527(3). See Katherine F. v State of New York
, 257 AD2d 539, 684
NYS2d 243 (1st Dept 1999), affd
94 NY2d 200, 702 NYS2d 231 (1999).
In sum, claimants are not entitled to summary judgment and the Court thus need
not reach defendant's remaining arguments. For the foregoing reasons, having
reviewed the parties' submissions,
ORDERED that motion no. M-64942 be denied.