New York State Court of Claims

New York State Court of Claims

MENDEZ v. THE STATE OF NEW YORK, #2003-013-508, Claim No. 97881


Synopsis


The claim is dismissed in its entirety because Claimant failed tp proffer any expert opinion evidence to establish medical malpractice, and because the medical record, combined with the trial and deposition testimony offered by the Defendant, confirmed the appropriateness of the involuntary confinement and of the treatment rendered.

Case Information

UID:
2003-013-508
Claimant(s):
STEPHEN A. MENDEZ and BETTY MENDEZ The Court has sua sponte amended the caption to reflect the only properly named defendant herein.
Claimant short name:
MENDEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the only properly named defendant herein.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97881
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
STEPHEN A. MENDEZ, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: DENIS McELLIGOTT
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The Claimant, Stephen Mendez,[1]
seeks to recover damages for what he alleges was his unlawful confinement by the Defendant at Stony Brook University Hospital (University Hospital) and his negligent treatment while so confined by the hospital staff, resulting in a violation of his constitutional right to due process, free speech and to practice his religious beliefs.
On November 20, 1996, Claimant was taken into custody by the Suffolk County Police Department after responding to a 911 call placed by Zella Wells, who claimed that the Claimant was attempting to choke and stab her.

Claimant testified that he was a pastoral counselor involved with the Word of Life Ministry[2]
and had been counseling Ms. Wells prior to this incident. In fact, he stated that he had attempted to perform an exorcism on her sometime prior to November 20, 1996. On the night in question, Claimant had picked up Ms. Wells and was to pick up Susan Roth, another church member, to attend a dinner. He stated that, while driving to Ms. Roth's apartment, Ms. Wells became agitated and attempted to choke him with an electric wire. He was able to free himself and tried to calm her, but to no avail. When they arrived at the Roth apartment, Ms. Wells became even more agitated and attempted to slash him with a knife she had obtained from the kitchen. Claimant was able to disarm her, but was cut in the scuffle. While he was in the bathroom cleaning his wound, he overheard Wells say that she was being choked and threatened with a knife, in what he subsequently learned was a call to 911.
The police responded immediately as they were already in the apartment when Claimant came out of the bathroom. According to Claimant, he attempted to explain to one of the officers that he was an exorcist and that he was counseling Ms. Wells, allegedly a medium who was involved with demons and spirits of the dead.[3]
He was immediately taken into custody and transported to University Hospital, without being informed of the charges against him. He was brought to the psychiatric emergency service at University Hospital, also referred to as Comprehensive Psychiatric Emergency Program (CPEP), where the Emergency Room staff initially reviewed the police report to obtain background information regarding the events surrounding Claimant's custodial confinement. Claimant was then interviewed by a number of staff personnel, including resident physicians in the psychiatric program, nurses on duty in the emergency room, and social workers, in order to determine whether he should be released or involuntarily committed for further treatment. It was the consensus of the staff that Claimant represented a danger to himself and/or others and should be committed.
During his confinement, Claimant was given injections of different tranquilizers on two separate occasions. Claimant testified that he objected to these injections and subsequently informed the staff that he was refusing any further medications, as he believed that he did not belong in the hospital and not suffering a psychotic event. According to the medical/hospital record, Claimant finally agreed in writing to orally take the drug Trilafon which he was informed would calm him. Claimant testified, however, that Dr. Chitra Malur, a treating physician, refused him access to the Physicians' Desk Reference so that he could be informed of possible side effects of Trilafon. Later, however, a member of the staff provided him with a copy of a printout (Exhibit 3) and a copy of the nurses's desk reference (Exhibit 4), relating to Trilafon and its potential side effects.

Claimant further testified that at some point he got out of bed to use the bathroom and while there noticed that the Plexiglas cover to a ceiling light was out of place. He stood on a wastepaper basket to reset the tile[4]
. He stated that a nurse appeared and directed him to step down from the basket and return to his bed.
It is unclear from his testimony, but at some juncture he was permitted to go through his admission packet, and in so doing he found a document entitled, "Patient's Rights" (Exhibit 2). After reading the pamphlet, he determined that a patient could refuse medication, and that a patient was, upon demand, entitled to demand a hearing to determine the necessity of further treatment and confinement and that such a hearing must be conducted within seventy-two (72) hours of the demand. He stated that he demanded such a hearing and submitted it to the staff, but was denied his right to this hearing.

The hospital record notes revealed that during his confinement, Claimant began to counsel other patients regarding their right to refuse medication. While he conceded that he did counsel patients regarding their right to refuse treatment, he did so in the context of explaining their rights as set forth in the Patient's Rights document referred to above. He stated that this counseling was not intended to interfere with their care, but merely to inform them of the right to refuse and that they were entitled to an explanation from the staff as to the need for the treatment. He acknowledged that he also informed the patients that they could refuse further treatment until the necessity for the treatment had been explained to their satisfaction.

In addition, a nurse's note reflects that he caused another patient to become upset and agitated by informing her that God did not love her. With respect to this incident, Claimant testified that he had been walking on the floor when he heard someone crying and went to investigate, as it appeared that no staff was responding. Claimant found this patient crying and repeating over and over again that God didn't love her. He then tried to console her by reassuring her that God did love her and that she should not be upset. As he left her room, he was confronted by a nurse demanding to know what he was doing in another patient's room. His attempt to explain the circumstances to the nurse met with a reprimand and direction to return to his room. According to Claimant, all of this constituted evidence of a religious bias by the staff, who were not trained in the tenets of Christianity or interested in the Claimant's representation of purported religious acts he had performed or attempted to perform.

Claimant called Susan Roth, who testified that the facts set forth in the police report were untrue and not representative of the events of November 20, 1996. According to Ms. Roth, Ms. Wells arrived at her apartment and was very agitated. She was yelling and most of what she was shouting was incomprehensible. Ms. Roth went into her bedroom to change, but could hear Ms. Wells state that she hated Claimant. When she came out of her bedroom she went into the kitchen, where she observed Wells with a knife threatening to stab Claimant who was trying to calm her down. Eventually, Wells calmed down and Roth went back to her bedroom to finish dressing. Again, Roth heard Wells and Claimant arguing, this time in the living room. She went to the living room and saw Wells pointing the knife three to four inches from Claimant's chest. She grabbed Wells' hand in an attempt to dislodge the weapon. During the ensuing scuffle, the knife ended up in Claimant's control, and he suffered a wound to his hand. Wells, still in a state of agitation, proceeded to call 911. The police arrived while Claimant was in the bathroom tending to the cut to his hand. Roth testified that the police never questioned anyone in the apartment as to what had occurred. Rather, according to Roth, the police simply ignored the distraught Wells and took Claimant into custody, over Roth's objection.

Roth further testified that she also had been in counseling with Claimant over the years and he had aided her in overcoming her anorexia without the need for medication. According to her, Claimant had never acted abnormally in all the years she had been acquainted with him. To the contrary, she testified that Claimant had a reputation within the church of being attentive and helpful to those who sought his counsel, despite Claimant's having been asked to leave the church for reasons not fully explained at trial. In Roth's opinion, Claimant had done nothing to hurt or harm Wells and merely tried to calm her down.

Claimant rested without calling any additional witnesses.

Defendant relied upon the trial testimony of Dr. Eric Fink, Dr. Andrew Francis, Nurse Lauren B. Beer and the deposition testimony of Dr. Chitra Malur (Exhibit 7), each of whom was involved in Claimant's hospitalization and treatment following the altercation in Roth's apartment. From the hospital record, it is apparent that the history of the events leading to Claimant's confinement was taken from the police report and, although not as clear, perhaps from conversations with the officers who brought Claimant to University Hospital. In any case, it should not come as a surprise that their testimony, coupled with the hospital record (Exhibit 1), presents a far different picture than that painted by the Claimant and his witness, Susan Roth.

The hospital record and the trial testimonies of Drs. Francis and Fink established that, prior to the involuntary commitment, Claimant was interviewed at separate times by a team consisting of the two attending psychiatrists, the resident psychiatrists on service, a social worker and a nurse. The members of the team then met and shared their respective notes with each other, permitting them to arrive at a determination regarding a diagnosis and the confinement and treatment of Claimant. In arriving at a diagnosis and treatment plan, many factors were considered by the team, which then concluded that Claimant needed to be confined for his own safety and the safety of others.

The hospital record (Exhibit 1) and Defendant's witnesses reveal that at the time Claimant was examined he presented with pressured (rapid, anxious) speech and admitted that he had experienced past as well as present auditory hallucinations, including hearing the voice of God. Claimant stated that he had the ability to broadcast thoughts to others, as well as to receive subliminal messages from the television. He believed that he had special powers, including the power to cast out demons from the bodies of those he counseled, and that electricity flowed through his hands, permitting him to activate lights without the use of a switch. The hospital record also contained the report that when the police arrived at the Roth apartment in response to the 911 call, Claimant was choking a woman (Ms. Wells).

Claimant's apparent trial strategy was to establish that his confinement was based upon some type of religious bias on the part of the hospital personnel. Failing that, he attempted to establish that his treatment constituted either medical negligence or malpractice. In my opinion, Drs. Fink, Francis and Malur (through her deposition), testified credibly that Claimant's confinement was based upon the objective symptoms they observed when they interviewed him. Their observations, coupled with the related events of November 20, 1996, led the staff to a diagnosis of "psychosis not otherwise specified" (Exhibit 1). Each physician who examined Claimant concluded that in his or her medical opinion, Claimant required hospitalization on an involuntary basis, and his documented actions while so confined confirm the validity of the recommendation that he be confined.

In addition to Claimant's behavior as set forth above, Nurse Lauren Beer gave a credible account of what were clearly two psychotic episodes that Claimant experienced during his confinement. She stated that she found Claimant in the bathroom playing with the ceiling tiles, and when confronted, he stated that he was cleaning a camera, and that he would expose the lies. Her hospital notes indicated that at this time Claimant was not responsive to reality testing and/or reassurance, and was given Droperidol to decrease his obvious agitation and paranoia (
see, Transcript, p. 228, and Exhibit 1). She also testified that Claimant was later found trying to flood his room and yelling incomprehensively. As a result of this episode, Claimant was placed in four-point and sheet restraints and given two milligrams of Ativan to decrease his agitation. Nurse Beer's notes further indicate that Claimant was talking to himself, and again was not responsive to reality testing and/or reassurance (see, Transcript, p. 229). These incidents, when considered with other data, corroborated the initial diagnosis and confirmed the need for forced medication and the use of four-point restraints.
In his claim/petition, Claimant generally asserts causes of action sounding in false imprisonment, negligence, medical malpractice, battery, intentional infliction of emotional distress and deprivation of his constitutional rights as guaranteed by the United States Constitution
and by the New York State Constitution. He asks for relief in the form of compensatory and punitive damages. Public policy proscribes actions against the State for intentional infliction of emotional distress (Brown v State of New York, 125 AD2d 750, lv dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496), and claims for punitive damages (Sharapata v Town of Islip, 56 NY2d 332). As a result, these causes of action are dismissed. To the extent that Claimant's causes of action sound in alleged violations of the United States Constitution or federal civil rights, they are also dismissed because the Court of Claims does not have jurisdiction over federal constitutional tort claims as the State is not a person within the meaning of 42 USC §1983 (Will v Michigan Dept. of State Police, 491 US 58; Monell v Dept. of Social Services of City of New York, 436 US 658).
Claimant's remaining constitutional claims are presumably brought under Article 1, §6 (due process rights), and Article 1, §3 (freedom of religion) of the New York State Constitution. Tort claims seeking monetary damages for alleged violations of rights guaranteed by the State Constitution are recognized in relatively rare situations, where such claims are "necessary and appropriate to ensure the full realization of the rights they state" (
Brown v State of New York, 89 NY2d 172, 189).
The constitutional tort remedy recognized in
Brown, supra, is a narrow remedy; it is not boundless (Martinez v City of Schenectady, 97 NY2d 78). This remedy is only appropriate, inter alia, where a claimant has no common law or statutory remedy available (Augat v State of New York, 244 AD2d 835, lv denied 91 NY2d 814). In the instant case, the Claimant's constitutional rights can be addressed by the remaining common law tort claims, e.g., false imprisonment, negligence, battery and medical malpractice. Because Claimant has common law remedies available to him, an implied constitutional tort remedy is not available to him (Bullard v State of New York, 307 AD2d 676; Lyles v State of New York, 194 Misc 2d 32). Accordingly, Claimant's constitutional claims are dismissed.
Claimant's remaining causes of action turn on whether Defendant followed the technical requirements of the Mental Hygiene Law in temporarily committing Claimant and whether Claimant's involuntary confinement constituted medical malpractice (
see generally, Ferretti v Town of Greenburgh, 191 AD2d 608, lv denied 82 NY2d 662, appeal dismissed 82 NY2d 748 [no substantial constitutional question]).
New York Mental Hygiene Law §9.37(a) authorizes the involuntary admission of a person upon the representation of a director of community services that the person has "a mental illness for which immediate inpatient care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself ... or others." The need for immediate hospitalization must be confirmed by a staff physician prior to admission, and within 72 hours thereafter, excluding Sundays and holidays, there must be filed with the hospital a certificate of another examining physician who is a member of the psychiatric staff that the person is in need of involuntary care and treatment. The trial testimony of Drs. Fink and Francis, the deposition testimony of Dr. Malur (Exhibit 7), and the medical records (Exhibit 1) confirm that the Defendant complied fully with all of the required procedures.

Claimant alleges, however, that he was denied his right to a court hearing within 72 hours of involuntary admission. The proof at trial does not support this contention. Included with the information given by Defendant to patients, including Claimant, who are admitted to a psychiatric facility, is a document entitled "Notice of Status and Rights." This notice explains,
inter alia, that a patient may be confined on an involuntary basis up to 60 days if, within 72 hours of admission, the patient is examined by another physician who is a member of the psychiatric staff and that physician certifies that the patient meets the requirements for involuntary admission (see, Mental Hygiene Law §9.37). This notice further explains that a patient who does not believe that he or she is in need of involuntary care and treatment may make a written request for a court hearing. Claimant received this notice and on November 22, 1996, he requested a court hearing. Nothing in the Notice of Status and Rights or in the Mental Hygiene Law requires that this court hearing be held within 72 hours of admission. Rather, the Mental Hygiene Law merely requires that a member of the psychiatric staff of the hospital certify within 72 hours of admission that the patient meets the requirements for involuntary admission. This requirement was met when Dr. Chitra Malur examined the Claimant and certified that he was in need of involuntary care and treatment on November 22, 1996,[5] well within 72 hours of Claimant's admission (Mental Hygiene Law §9.37[2]). With respect to the court hearing, §9.39 of the Mental Hygiene Law states that the hearing is to be held as soon as practicable, but no later than five days after the request for the hearing is received. Here, Claimant was released before the expiration of the five-day period, obviating the need for such a hearing.
Claimant also alleges that the decision to commit him involuntarily and the treatment rendered at the hospital were done negligently, thereby giving rise to Claimant's remaining causes of action sounding in negligence, false imprisonment, medical malpractice and battery (arising out of the decision to forcibly medicate Claimant and place him in four-point restraints). To establish a cause of action for false imprisonment, Claimant must prove,
inter alia, that his involuntary confinement was not privileged (Broughton v State of New York, 37 NY2d 451, cert denied sub nom., Schanbarger v Kellogg, 423 US 929; Gonzalez v State of New York, 110 AD2d 810). A commitment pursuant to article 9 of the Mental Hygiene Law is privileged in the absence of medical malpractice (Jenkins v Wilbur, 72 AD2d 822; Gonzalez v State of New York, supra). Claimant must, therefore, prove medical malpractice in order to prevail on his false imprisonment claim (Ferretti v Town of Greenburgh, 191 AD2d 608, lv denied 82 NY2d 662, appeal dismissed 82 NY2d 748, supra). Similarly, Claimant's negligence claim and his claim of battery, arising out of the decision to forcibly medicate and restrain him, turn on the propriety of these medical decisions and, thus, constitute causes of action sounding in medical malpractice (Berger v State of New York, 171 AD2d 713). In sum, all of Claimant's remaining causes of action turn on the issue of medical malpractice.
The record before me is completely devoid of any evidence of medical malpractice with respect to the decision to involuntarily commit Claimant or with respect to the treatment he received by the doctors, nurses or other hospital staff during his confinement. Indeed, to the contrary, the proof on this record establishes that the staff followed good medical procedure in reaching the decision to commit Claimant and in their treatment of Claimant despite his reluctance to heed their recommendations and was in complete accord with the accepted standards of good medical care in such instances.

Further, the credible evidence established that the decision to forcibly medicate and place Claimant in restraints was reasonable. While it is well established that a patient has a fundamental right to refuse medical treatment and medication (
Rivers v Katz, 67 NY2d 485), this right is not absolute. A facility may give treatment to any patient when that patient is presently a danger to self or others (14 NYCRR 527.8[c][1] and [a][4]), and, pursuant to the Mental Hygiene Law, may employ restraints to prevent a patient from injuring self or others (Mental Hygiene Law §33.04). Here, Claimant was found interfering with the treatment of other patients. While Claimant would have this Court believe that he was merely advising other patients of their right to refuse medication and was not interfering in their treatment, I find that he had no responsibility or right to offer this advice and was in fact interfering in their care. I further find that this and other documented actions supported the conclusion of the medical staff that Claimant was a danger to himself as well as to others and that the decision to forcibly medicate and restrain him was reasonable under the circumstances.
Finally, where as here, all of Claimant's causes of action rely on the existence of medical malpractice, it was incumbent upon Claimant to proffer expert medical opinion evidence to demonstrate merit (
Romano v St. Vincent's Med. Center of Richmond, 178 AD2d 467). Claimant failed to proffer any expert opinion evidence, despite receiving specific instructions regarding the use of an expert given to him by Judge Richard E. Sise during a November 16, 2001 pretrial conference.[6] Because the medical record (Exhibit 1), combined with the trial and deposition testimony offered by the Defendant, confirmed the need for involuntary confinement and for the treatment rendered, and because the Claimant failed to proffer any expert opinion evidence to support his claim of medical malpractice, Defendant's motion to dismiss, made at the conclusion of Claimant's case and renewed at the conclusion of trial, is granted. Furthermore, there was no proof offered at trial relative to a cause of action sounding in defamation, and as such, it is deemed abandoned.


Accordingly, Claimants' claim is dismissed in its entirety. All motions heretofore undecided are denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.


September 30, 2003
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]The claim of Betty Mendez is derivative only. All references herein to Claimant shall refer solely to Stephen Mendez unless specified otherwise.
  2. [2] In his "Notice of Petition," Claimant states that at the time of the incident, he had just left his church with people who violated his trust (see, Claimant's "Notice of Petition," p. 6, ¶ 6).
  3. [3] According to his "Notice of Petition," Ms. Wells was "manifesting signs of possession" and Claimant was "trying to ascertain what ‘entity' was making itself manifest so [he] could stop it" (see, "Notice of Petition," p. 5, ¶ 2).
  4. [4]In his Bill of Particulars, Claimant states that while in the bathroom he decided to look for evidence of neglect because the hospital had no intention of letting him go. He further stated that while in the process of investigating for evidence, Dr. Fink "found [him] looking up into the lighting fixture" (see, Bill of Particulars, p. 6). The progress notes in the records of University Hospital indicate that when Claimant was "found playing with ceiling", he said, "I'm cleaning the cameras - will expose the lies" (see, Exhibit 1, progress notes).
  5. [5] See, Examination Within 72 Hours, Form OMH 475D, contained in Claimant's medical records (Exhibit 1).
  6. [6] I am familiar with this conference because it was electronically recorded and I have listened to the recording.