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.
11-13). The Court denied the causes of action sounding in medical malpractice
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
). Decedent was serving several concurrent indeterminate sentences for
automobile related crimes and was eligible for parole on September 15, 1997 (see
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
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
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
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
, 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
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
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.