New York State Court of Claims

New York State Court of Claims

ARIAS v. THE STATE OF NEW YORK, #2003-029-277, Claim No. 97942


Bifurcated trial, liability. Inmate commits suicide on overdose of pills. Court finds claimant established medical malpractice by State's doctors permeates this case. Decision for claimant, State found liable.

Case Information

CHRISTINE NEWBORN ARIAS, as limited administrator of the Estate of William E. Newborn, Jr., and CHRISTINE NEWBORN ARIAS, individually
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
John D.B. Lewis, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 17, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim seeks damages for (1) decedent's physical injuries, conscious pain and suffering and wrongful death and (2) for claimant's loss of the services, support and affection of decedent, her son. The trial was bifurcated and this decision deals only with the issue of liability.

By Decision and Order filed January 29, 2003, this Court granted in part and denied in part claimant's motion for summary judgment as to liability (
Arias v State of New York, Claim No. 97942, Motion No. M-66164, Mignano, J.). The Court granted the motion as to the causes of action asserting negligent distribution of medication to decedent (id. at Pages 7-9), failure to complete an Unusual Incident Report, failure to maintain Watch Commander's log and failure to notify claimant of decedent's admission to an outside hospital on a weekend during non-business hours (id. at Pages 11-13). The Court denied the causes of action sounding in medical malpractice (id. at Pages 9-10) solely on the basis that questions of fact existed as to the various acts of malpractice alleged. No such questions exist any longer and the Court may now choose from a veritable list of medical deficiencies in the treatment of the decedent.
The evidence established that claimant's decedent, William E. Newborn, Jr., was an inmate in the custody of the New York State Department of Correctional Services (hereinafter DOCS) and was housed at Green Haven in A Block, Cell 121 during the summer of 1997. Green Haven is a maximum security prison and A Block houses inmates in protective custody (see Exhibit 37[1]
). Decedent was serving several concurrent indeterminate sentences for automobile related crimes and was eligible for parole on September 15, 1997 (see Exhibit 2).
Decedent had a history of mental health problems and treatment dating to 1985. On May 16, 1997 a DOCS Senior Correction Counselor noted decedent's rapid mood swings and poor disciplinary record and referred decedent to the Office of Mental Health (hereinafter OMH) for a psychiatric evaluation (see Exhibit 67). Decedent was interviewed by a psychiatrist and diagnosed with Bi-Polar II Disorder, Hypomanic and Anti-Social Personality Disorder. He was designated for OMH services as Level One, the most intensive level of medication monitoring by psychiatric/nursing staff (see Exhibit 26 and Exhibit 67). Level One requires one-to-one administration of medication by a nurse (see Exhibit 26 and Exhibit 56).

Decedent was seen regularly by mental health staff until the August 1, 1997 incident preceding his death. Progress notes of sessions with mental health clinicians reflect decedent's impulsive behavior, rapid mood swings, suicidal and homicidal ideations, his intent to change from liquid medication to pill form and his request to spend a few days in the Psychiatric Satellite Unit (hereinafter PSU) at Green Haven (see Exhibit 67, Page 5).

DOCS doctors prescribed Pamelor (Nortriptyline) to decedent for headaches on June 10, June 16, July 8, July 21 and July 29, 1997 (see Exhibit 67, Page 11). Pamelor is a tricyclic antidepressant commonly used for relief of depression (see Exhibit 30, Physicians' Desk Reference [hereinafter PDR]). Decedent appeared before the Parole Board in early July 1997. On July 19, 1997 he told an OMH social worker that he would attempt suicide if the Parole Board denied him parole (see Exhibit 67, Page 9).

On July 24, 1997 decedent was seen by OMH psychiatrist, Dr. Choo in the PSU at Green Haven. During that interview, decedent reported having unstable mood swings for a long time. He expressed his past thoughts of killing himself and others because of these mood swings. He denied any intentions of killing himself or others at that time and agreed to request help from the PSU if he felt suicidal or homicidal. He also reported that he took some pills to help him sleep and reduce stress (see Exhibit 67, Pages 9-10). On July 24, 1997 Dr. Chung prescribed both Trilafon and Elavil to help decedent sleep. Elavil is a tricyclic drug of the same class as Pamelor (see Exhibit 29). It is medically contraindicated to prescribe Elavil and Pamelor at the same time (see Exhibit 30, PDR). On or before July 29, 1997 decedent learned he had been denied parole requiring that he serve at least two more years of his sentence (see Exhibit 76, letter from Decedent to Claimant dated July 29, 1997).

On July 31, 1997 decedent was seen by the OMH Unit Chief for supportive therapy. Decedent appeared more animated than on previous occasions and his mood was slightly improved. However, he had difficulty remembering his last mental health encounter. He reported that he refused medication because it upset his stomach. He requested to spend a few days in the PSU to get some relief from the stress and pressure on his cell block. Decedent was advised that he would have to speak with the doctor regarding this matter and that the Unit Chief would try to arrange a meeting for August 1, 1997 (Exhibit 67, Page 10). Progress notes dated August 1, 1997 (Exhibit 12) reflect that "patient will be seen again today pm on call out scheduled asap" (see also, Exhibit 67, Page 10). The Court believes the testimony of claimant's expert that this note indicates the existence of a psychiatric emergency requiring aggressive intervention.

At about 12:50 p.m. on August 1, 1997 decedent told Correction Officer (C.O.) Henschel that he wanted to be ready to go to PSU when the escort officer arrived to take him. Therefore, he requested permission to leave the exercise yard early to return to his cell (see Exhibit 25). C.O. Henschel let decedent into his cell but refused to leave the door open as the inmate requested. When decedent became agitated at being locked in, Henschel said that he would give the escort 20 minutes and if the escort was late, Henschel would let decedent out (Exhibit 13, Henschel memo). No escort officer arrived to take decedent to the OMH call-out (Exhibit 37).

At approximately 1:20 p.m., decedent began calling for the Block officer. Since C.O. Henschel was busy, C.O. Trainee Schrader responded. When the officer, at the direction of C.O. Dienhoffer, refused to let decedent out of his cell, he allegedly became "wild", yelled at the C.O.s and "trashed his cell". According to an entry in the housing unit log, decedent "tore up his cell while waiting to see PSU doctor" (Exhibit 38; see also Exhibit 16 [Thacker memo]). Hearing the commotion, C.O. Henschel came to Newborn's cell at about 1:35 p.m. and talked to him for about 20 minutes, calming him down (Exhibit 13).

According to C.O. Henschel, during this talk, decedent slammed his forehead against the cell wall "several times very hard", repeatedly punched his locker and cursed C.O. Trainee Schrader (Exhibit 13). After decedent calmed down and straightened out his cell, in compliance with Henschel's precondition, he was permitted to go to the yard (Exhibit 13). Within 15 minutes, however, decedent complained that "they" would not leave him alone and asked to be returned to his cell (Exhibit 33).

Decedent's OMH record indicates an officer called the OMH clinic at 2:05 p.m. (Exhibit 12 and Exhibit 67, Page 11). An OMH nurse's note records that the calling officer was instructed to tell the inmate that if an escort was unavailable, PSU would schedule him again in the morning. When the C.O. thereafter reported that the inmate was talking to himself and to "someone who wasn't there" the nurse advised the C.O. to notify the Sergeant to have the inmate escorted to PSU. It appears that this advice was not followed.

At approximately 2:00 p.m. another C.O. saw decedent grab something and put it to his mouth. The block officer observed decedent throwing an empty container to the floor. When questioned, decedent told the officer it was pills for his headaches and to help him sleep. The inmate then laid down on the floor. Decedent was questioned several times as to what he ingested and he insisted he only took one pill. The C.O. noted that the empty bottle was dated July 30 and originally contained 30 pills. The block officer called the clinic and was instructed to get the inmate to the clinic. Decedent walked with the escort officer to the clinic. At 3:00 p.m. decedent was examined by a doctor - BP was 120/80; p-88 (regular); r-20. The doctor ordered that decedent be transported to an outside hospital for monitoring. At 3:58 p.m. Sloper-Willen Community Ambulance Service, Inc. (hereinafter Sloper-Willen) received a call from the facility regarding an overdose and responded immediately. While awaiting the ambulance in a room adjacent to the clinic, decedent was observed falling to the floor from his chair. He was snoring deeply. BP was 100/64; p 104 (regular); r-20, pupils equal and reactive to light. The inmate became combative when he was placed on the backboard.

Sloper-Willen arrived at the scene at 4:10 p.m. According to the prehospital care report, decedent was lying on the prison stretcher unconscious and unresponsive with snoring respirations. Decedent was given oxygen (10 LPM via face mask), placed on the ambulance stretcher and transported to the hospital. ALS care was rendered en route. The ambulance arrived at St. Francis Hospital in Poughkeepsie at 5:14 p.m. Decedent arrived at the emergency room in respiratory distress and unresponsive. He was treated, placed on a ventilator and subsequently admitted to the Intensive Care Unit. He had a rocky hospital course lasting 13 days during which he showed gradual improvement of a condition treated presumptively as Nortriptyline poisoning. However he developed complications, including Pulmonary Thromboembolism, which were irreversible and died on August 13, 1997 (see Exhibit 25, Pages 3-4; Exhibit 67, Pages 13-14).

The sole expert witness to appear, Alan J. Tuckman, M.D., testified on claimant's behalf. Dr. Tuckman is board certified in psychiatry, neurology and forensic psychiatry. The State stipulated to the witness' expertise in these areas of medicine and the Court accepted him as an expert in these fields.

Dr. Tuckman testified that the standard of care to be provided to a patient is identical whether the patient is seen by a physician in a private office, a clinic or a prison. He reviewed the Outpatient Services Screening form prepared on May 17, 1997 by Dr. Choo of OMH (Exhibit 12). Dr. Tuckman stated that Exhibit 12 describes decedent as seriously mentally ill; that he has extreme anger, a history of suicide attempts and has limited judgment and insight, frequent mood swings and a history of psychiatric treatment. Dr. Tuckman testified that OMH records do not indicate that OMH acquired decedent's prior psychiatric records. In his opinion this was a departure from accepted medical practice. The witness stated that a doctor, especially a psychiatrist, needs the past records of a patient to know the history of the patient. He stated it is standard practice to obtain a patient's past records.

Dr. Choo decided to start decedent on Lithium once he was medically cleared. According to Dr. Tuckman, based upon Dr. Choo's notes, Dr. Choo believed decedent had an irregular heartbeat which precluded prescribing decedent Lithium. Dr. Tuckman opined that if Dr. Choo had obtained Newborn's medical records he may have discovered there was no irregular heartbeat or that the issue was clarified as a result of a prior consult and he may have then been able to go forward with the Lithium treatment immediately. Dr. Tuckman stated that at that point, decedent was taking Pamelor which can exacerbate Bi-Polar Disorder unless the patient receives a mood stabilizer such as Lithium. However, it appears from the OMH records that on May 17, 1997, the OMH doctors did not know that decedent was receiving the Pamelor from the DOCS medical doctors. This failure to coordinate treatment, or to take an adequate history, is itself a deviation from good practice although it may be a less egregious failing than others present in the care rendered.

Dr. Chung, decedent's assigned psychiatrist, first saw decedent on May 29, 1997. He believed there was still an issue with regard to decedent's irregular heartbeat, so instead of Lithium, he prescribed Depakote, a different mood stabilizer. However, decedent refused to take the medication and Dr. Chung ordered that decedent return to the OMH clinic in four weeks. In Dr. Tuckman's opinion, this was a serious departure from accepted medical practice as he states it was readily apparent that decedent was severely mentally ill and Dr. Chung sent him away untreated and unprotected with nothing more than an extended date for reevaluation.

Decedent returned to Dr. Chung on June 5, 1997 - about a week after his prior visit. The doctor recorded in his notes that decedent was abusive towards him and told Newborn to come back in four weeks. Dr. Tuckman opines that this was an improper diagnosis of decedent's manic behavior by Dr. Chung. Dr. Tuckman stated that foul, abusive language is a sign of manic behavior and should have alerted Dr. Chung to decedent's deteriorating mental condition. It certainly indicated a need for a more aggressive approach than "RTC x 4 weeks".

The OMH records (Exhibit 12) establish that decedent was seen by Dr. Chung on July 3, 1997 but refused to talk to the doctor because he wanted to see "an American" doctor. The note indicates the doctor told him to come back in four weeks. According to Dr. Tuckman, Dr. Chung did nothing for decedent, did not treat his bi-polar disorder and did not meet the required standard of care.

On the basis of the above, it is clear to the Court that the psychiatric treatment in this case was substandard. While it would not be fair to require doctors to read minds, the patient himself gave numerous, fairly unsubtle clues as to his condition and trajectory. Where this matter required aggressive measures, a most passive course was inappropriately adopted.

Dr. Tuckman also testified regarding the medical care decedent received at Green Haven following the drug overdose on August 1, 1997. He stated that absorption starts about 30 minutes after ingestion and within one and one-half hours of ingestion the drug is totally absorbed into the person's system. The witness stated that decedent's medical records indicate decedent arrived at the Green Haven clinic at about 3:00 p.m; that he was examined by a physician and ordered to be transferred to an outside hospital. The witness stated that there is no indication in the medical records that a gastric lavage (evacuation of the stomach) was performed on decedent while he was at the Green Haven clinic. Dr. Tuckman stated this procedure requires insertion of a nasogastric tube through the mouth or nose into the stomach. The witness stated that this medical equipment is very common and readily available in an emergency facility. He also stated that if the nasogastric tube was not available, another way to evacuate the stomach was to have him swallow a stomach irritant which works instantly and should have been readily available at the Green Haven clinic. The witness opined that the failure to perform a gastric lavage or induce vomiting at the Green Haven clinic was a deviation from standard medical practice, especially in a time critical case of presumed poisoning.

It is well settled that the State owes a duty to its incarcerated citizens to provide them with adequate medical care (
Kagan v State of New York, 221 AD2d 7). Moreover, when the medical care provided by the State includes the provision of psychiatric services, the State will be held to the same duty of care as a private institution engaged in such activity (Rattray v State of New York, 223 AD2d 356; Amadon v State of New York, 182 AD2d 955, 957).
As the causes of action are premised upon medical malpractice, claimant must establish that the medical professionals involved either did not possess the requisite knowledge and skill such as is possessed by the average member of the medical profession or did not use reasonable care in the application of such knowledge and skill or their best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (
Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; Pike v Honsinger, 155 NY 201). The proof required in such a case includes the accepted medical standards of care in the community in which the medical professional practices (Toth v Community Hosp. at Glen Cove, 22 NY2d 255) and a deviation or departure from those standards (Kletnieks v Brookhaven Mem. Assn., 53 AD2d 169, 176). The practitioner is not required to achieve success in every case and cannot be held liable for mere errors of professional judgment (Pike v Honsinger,155 NY 201, supra; DuBois v Decker, 130 NY 325). The "line between medical judgment and deviation from good medical practice is not easy to draw", particularly in cases involving psychiatric treatment (Schrempf v State of New York, 66 NY2d 289, 295; Topel v Long Is. Jewish Med. Center, 55 NY2d 682, 684). Liability, however, can ensue if the physician's judgment is not based upon intelligence and thus there is a failure to exercise any professional judgment (Pigno v Bunim, 43 AD2d 718).
Based upon the uncontroverted testimony of Dr. Tuckman, claimant has established by a preponderance of the credible evidence that the defendant's doctors did not possess or did not use reasonable care or their best judgment in applying their knowledge or skill in their treatment of decedent from May 1997 through August 1, 1997 including their failure to: (1) coordinate treatment between DOCS physicians and OMH physicians, (2) adequately review the decedent's prior history, (3) appropriately assess decedent's deteriorating mental condition, (4) adequately follow up the question of cardiac issues which prevented the administration of Lithium, (5) take more aggressive actions than merely "return in 4 weeks", and (6) institute appropriate medical procedures to counteract suspected poisoning on the day of the incident.

The Court finds the State to be fully responsible for the systemic medical malpractice which permeates this case. The Chief Clerk is directed to enter an interlocutory judgment in favor of claimant and against the defendant, State of New York.

Counsel for both sides are hereby directed to contact the Court to establish a conference date regarding outstanding discovery matter with respect to the issue of damages. Counsel are directed to consult with each other regarding potential conference dates and to contact the Court regarding same within 30 days subsequent to receipt of this Decision. The Court will then set the matter down for trial on the issue of damages as soon as practical.

April 17, 2003
White Plains, New York

Judge of the Court of Claims

[1]Exhibit 37, as well as Exhibits 2, 13, 16, 26, 33, 38 and 76 referred to herein were all submitted by claimant on a prior summary judgment motion, which the Court granted in part, and were part of the record on that motion.