This is a timely filed claim for personal injuries sustained by claimant. The
trial of this claim was bifurcated and this decision deals only with the issue
The evidence adduced at trial established that on February 25, 1996 claimant
attempted suicide by jumping from a height. At that time, claimant was an
outpatient at the Carmel Mental Health Clinic, a clinic of the Hudson River
Psychiatric Center, which is owned and operated by the State of New York.
Claimant was being treated for schizophrenia. It is alleged that the defendant,
by its employee Dr. Patel, claimant's treating psychiatrist, breached its duty
of care owed to claimant.
Claimant testified that he last saw Dr. Patel on Friday, February 23, 1996, two
days before he attempted suicide. At that time he advised Dr. Patel he wanted
to go to the hospital because the television was talking to him, the town was
out to get him and he was taking too much medicine. Claimant stated Dr. Patel
wanted to increase his medication. He said that when the doctor had previously
increased the medication dosage he lost his job and could not function.
Mr. Florez stated that on February 23, 1996 he decided to commit suicide while
he was sitting in Dr. Patel's office because the doctor told him his hospital
days were over.
On cross-examination, claimant testified that he never told Dr. Patel or his
therapist that he felt like committing suicide or harming himself while he was a
patient at the Carmel Mental Health Clinic.
Dr. Chiman Patel was called as a witness by claimant. He testified that he
graduated from Shrimatinhl Municipal Medical College in Ahmedabab, India in 1972
and came to the United States in 1981. In 1987 he became a licensed
psychiatrist in New York State and also started working for the State as a
The witness testified that claimant has suffered from schizophrenia since he
was 18 years old, also suffers from delusional thinking of a prosecutory nature
and that claimant is a paranoid schizophrenic. He first treated claimant in
and continued as his treating psychiatrist until the suicide attempt in
February, 1996. He stated that claimant had impulse control problems in the
area of gambling. He also stated that, at the time he became claimant's
treating psychiatrist, claimant was on a maintenance dose of
, which was effective in treating
schizophrenia and reducing the risk of suicide in schizophrenic
Dr. Patel testified that claimant lived in a supervised living community at the
time he first treated claimant but that claimant did not require live-in
supervision to ensure he took his medication. According to Dr. Patel, claimant
requested a change in his living situation to a less structured environment, a
program called independent living, wherein the patient makes an application to
Section 8 housing for rent subsidy. Dr. Patel denied that this is a case of a
patient being pushed into a clinically inappropriate situation. Dr. Patel
testified that independent living does not include having people take care of a
patient's daily needs. The witness stated that there was no procedure in place
to evaluate whether a patient could safely move to a less structured
environment. He never made any formal assessment of claimant to determine
whether he was suitable for an independent living environment.
Dr. Patel testified that suicide is one of the chief causes of death among
schizophrenic patients and that the risk of attempted suicide is higher in
schizophrenics than in the general population. He stated that a previous
suicide attempt and depression are two risk factors, among many others, in
determining suicide risk in a patient. He was aware of claimant's previous
suicide attempt and prescribed Prozac for depression in August, 1995. He also
stated that from 1994 to 1996 claimant was being seen on a weekly basis, and
sometimes more frequently, by a psychological intern or therapist at the
facility and that he discussed claimant's case with the therapist but that there
were no formal meetings between them regarding claimant.
Dr. Patel stated that although claimant may have been
, he was not in a psychiatric crisis in early 1996. According to Dr. Patel,
there was evidence in early 1996 that claimant was "poorly compliant" with his
medication. He was sometimes taking his medication and sometimes not. He was
also altering the dosage amount.
Dr. Patel was referred to claimant's medical record (Exhibit B, Page 499) and
the note he made after seeing claimant on February 23, 1996. Dr. Patel notes
that claimant had an increase in his paranoid thoughts but he did not document
the content of claimant's delusions. He was aware claimant was anxious. He
stated that he did not discuss hospitalizing claimant with him nor did he
consider it an option. Dr. Patel stated he offered claimant individual
psychotherapy twice a week. He also increased claimant's dosage of Clozaril and
told him to reduce his intake of caffeine and tobacco because these substances
degrade the effectiveness of Clozaril.
On cross-examination by defense counsel, Dr. Patel stated that claimant
underwent a "formal" suicide assessment when he began treatment at the Hudson
River Psychiatric Center in 1992. At that time he had no suicidal or homicidal
ideations (see Exhibit B, Pages 9, 11 and 18). He stated that patients are
continuously evaluated for risk of suicide in the course of their treatment.
Dr. Patel explained that the absence of such "informal" assessment notations in
claimant's medical records was because negative findings are not usually
recorded in the progress notes.
Dr. Patel testified that treatment plans are used to address specific problems
of individual patients and are created every three months. They are created by
the patient's therapist and doctor and are signed by the patient, therapist and
doctor. The last treatment plan the witness prepared for claimant is dated
February 16, 1996 (see Exhibit B, Page 333). No suicidal ideations were noted
on the plan and the doctor stated if claimant had exhibited suicidal ideations
they would have been so noted. He also stated that if the therapist thought
that a patient was not following the treatment plan, the therapist would bring
this information to the attention of the treating physician. This did not
Two other witnesses testified at trial, both of whom were accepted by the Court
as experts in the field of psychiatry. Claimant's expert, Dr. Robert
and the defendant's expert, Dr. L. Mark
agreed upon the essential facts but
drew highly divergent opinions and conclusions.
Dr. Goldstein testified that he reviewed claimant's medical records (Exhibit
B), claimant's deposition testimony and Dr. Patel's Examination Before Trial
prior to testifying. He opined to a reasonable degree of psychiatric certainty
that there were a number of deviations from the accepted standards of care in
the treatment of claimant and that these deviations were directly and causally
related to claimant's suicide attempt.
The doctor enumerated eight different deviations from accepted practice:
(1) the failure to assess claimant for clinical readiness to move to
(2) the refusal to acknowledge claimant's cry for help to return to the more
structured, supervised and less stressful environment resulted in making
claimant feel hopeless and therefore is causally related to the suicide
(3) the failure of communication between Dr. Patel and the therapist, resulting
in Dr. Patel failing to make appropriate treatment decisions;
(4) the failure to adequately address claimant's non-compliance with his
prescribed medication in the face of claimant's decompensation of February 20
and 23, 1996;
(5) the failure to deal with claimant's complaints about the side effects of
(6) the failure to specifically inquire into, identify and document the content
of claimant's delusions;
(7) the failure to establish a baseline against which to judge claimant's
progress or regression in that there is no record of a mental status exam during
each patient contact;
(8) the failure to perform a suicide risk assessment.
Dr. Goldstein testified as to the first alleged deviation that the failure to
assess whether claimant was ready to survive the additional stress of
independent living in his own apartment without the support of the structured
living environment was a departure from good and accepted practice standards;
that schizophrenics are very vulnerable to stress and stress can aggravate their
symptoms causing additional problems. He asserted that independent living
caused claimant significant stress. As to the second and third alleged
deviations, the witness asserted that Dr. Patel was not aware of the claimant's
hopelessness, desperation and escalating risk, or his impaired functioning and
loss of control. As to the fourth alleged deviation, Dr. Goldstein stated that
when a patient is getting worse (decompensating) and not following the
medication regime, the standard of practice is to have some monitoring of the
patient's ingestion of the medicine or to administer a medication parenterally
once a month. Dr. Goldstein stated that injection delivery breaks the "spiral
of deterioration" caused by the patient's non-compliance. The witness asserted
that in early 1996 claimant was at imminent risk of committing suicide and he
should have been hospitalized. Regarding the fifth alleged deviation, Dr.
Goldstein opined that the failure to deal appropriately with claimant's
complaints about wanting to jump out of his skin or being restless and
uncomfortable helped cause his non-compliance with his medication and worsened
his downward spiral of decompensation. With regard to the sixth alleged
deviation, Dr. Goldstein stated that the content of delusions is essential to
assessing what risk the patient presented to himself and others. He stated that
Dr. Patel never inquired into the content of claimant's delusions so he
obviously could not document the content or nature of the delusions. Regarding
the seventh and eighth alleged deviations, Dr. Goldstein testified that he found
such a failure to be "incredible" in a patient such as claimant with the highest
possible suicide risk – a schizophrenic with depression and a past record
of suicide attempt and psychiatric hospitalization, increased stress level,
increased loss of impulse control as to gambling and non-compliance with his
medications (Trial Transcript, Volume 2, Page 209). Dr. Goldstein opined that,
had a suicide risk assessment been appropriately performed and documented,
appropriate intervention measures could have been taken to prevent the suicide
In his post-trial brief, claimant's counsel asserts that at his deposition Dr.
Patel testified that he did not recall ever making any assessment of claimant's
risk for suicide (see Exhibit 1, Page 32, Transcript of Dr. Patel's Deposition).
At trial, Dr. Patel testified that he recalls making a suicide risk assessment
every time he saw claimant. Claimant requests that the Court give more weight
to Dr. Patel's deposition testimony than to his trial testimony. It was Dr.
Goldstein's opinion that if the suicide risk assessment is not documented, it
did not happen (Trial Transcript, Volume 2, Page 211).
Not surprisingly, Dr. Russakoff disagreed with almost all of Dr. Goldstein's
opinions regarding the State's alleged deviations from accepted psychiatric
practice. The witness concluded, based upon his review of the claimant's
medical records, to a reasonable degree of medical certainty, that claimant's
treatment at Carmel Mental Health Center did not deviate from good medical
practice in the treatment of claimant.
Dr. Russakoff stated that claimant is chronically mentally ill. The
progression exhibited by claimant is consistent with someone who would have been
in a State hospital in previous generations. The witness disagreed with Dr.
Goldstein's conclusion that the medical record evinces that claimant was in a
spiraling decompensation. It is Dr. Russakoff's belief that the record
indicates a "waxing and waning"
of claimant's condition without any clear evidence of a spiraling decompensation
(Trial Transcript, Volume 2, Page 248). The witness stated that claimant has a
"capacity to use reality" and is not spiraling into decompensation (Trial
Transcript, Volume 2, Page 253). The doctor refers to the medical record notes
of October 24, 1995 (Exhibit B, Page 480) to indicate that claimant was reaching
out for help and that at this point he was not hopeless. The witness opined
that a person who has no hope does not reach out for help. He also asserts that
since there was "substantial documentation of things such as the paranoid
thinking" it is reasonable to infer from the absence of documentation regarding
suicidal thinking that there was, in fact, no articulation of suicidal thought
by claimant (Trial Transcript, Volume 2, Page 249).
According to Dr. Russakoff, other signs that claimant was not in a spiraling
decompensation are that claimant knew some of his paranoid thoughts were not
real, he talked about his girlfriend's company and he was able to derive
pleasure from things. The witness notes that in January, 1996 the medical
record shows a collaborative relationship between claimant and Dr. Patel
balancing the risks and needs of claimant (see Exhibit B, Page 490, Notes of
January 16, 1996). He also states that on January 23, 1996 (Exhibit B, Page
492) there were some signs that claimant was stressed but there was no
indication of imminent risk of harm to himself or others. Claimant was looking
to the future, looking forward to a new job, considering how to spend a tax
refund check and the possibility of a new girlfriend. Dr. Russakoff says the
medical record shows claimant is hopeful and such hopefulness does not indicate
The witness stated that claimant was poorly compliant with his medication. He
does not believe claimant was
. He said that poor compliance is a common problem in
psychiatric and medical treatment. The doctor stated that the February 20, 1996
note in the record (Exhibit B, Page 498) is the first record of poor compliance
with medication and that is not, per se, a signal that claimant's treatment "has
suddenly gone over a cliff" (Trial Transcript, Volume 2, Page
Dr. Russakoff also disagreed with Dr. Goldstein's opinion that claimant needed
to be hospitalized. He does not see any indication in the record that claimant
had any risk or desire to be in the hospital. He said claimant's poor
compliance with his medication did not indicate admission to the hospital.
Hospitalization requires an imminence of danger and, in his opinion, the record
does not show such imminence.
The witness also disagreed with Dr. Goldstein's conclusion that claimant should
have received his medication by injection. Dr. Russakoff stated that the only
injectable medication available was a classic anti-psychiatric medication which
had previously been ineffective for claimant. He stated that Clozaril is not
available by injection.
Dr. Russakoff further disagrees with Dr. Goldstein's conclusion that the
December, 1994 decision to let claimant move from the structured living
environment to independent living was a proximate cause of the suicide attempt.
The witness opined that while the defendant's medical record keeping was "not
perfect" or ideal (Trial Transcript, Volume 2, Page 269), it is not grossly
inadequate or incompetent. He said that Dr. Patel noted pertinent findings and
one is able to get a picture of what is occurring. The witness also disagrees
with Dr. Goldstein, as he believes Dr. Patel did document the content of
claimant's delusions because the record establishes that claimant had concerns
about his safety around the clinic's staff.
Dr. Russakoff testified that claimant has had risk factors for attempted
suicide since he was 19 years old and those factors are enduring. However, the
medical record does not contain documentation of imminent risk of a suicide
On cross-examination, Dr. Russakoff stated that while it is better practice to
document the contents of a patient's delusions, it is not a deviation from
practice not to do so. He testified that Dr. Patel should have assessed
claimant for the suicide risk. If Dr. Patel continually assessed his patients
for suicide, but did not record negative findings in the medical record, it
would not be a deviation from standard medical care.
While the State had a duty to take all reasonable precautions to protect its
psychiatric patients from self-harm "[a]n ingenious patient harboring a steady
purpose to take his own life cannot always be thwarted" (
Hirsh v State of New York
, 8 NY2d 125, 127). Moreover, a psychiatrist is
not required to achieve success in every case (see, Schrempf v State of New
, 66 NY2d 289, 295) and cannot be held liable for mere errors of
professional judgment (Weinreb v Rice
, 266 AD2d 454; Ibguy v State of
, 261 AD2d 510). Rather, the psychiatrist must be shown to have
breached his duties to (1) possess requisite knowledge and skill; (2) exercise
ordinary and reasonable care in their application; and (3) use his best judgment
in doing so (Hale v State of New York
, 53 AD2d 1025, lv denied
NY2d 804; Pike v Honsinger
, 155 NY 201). The line between permissible
medical judgment and a deviation from good medical practice is particularly
difficult to draw in cases involving psychiatric treatment (Schrempf v State
of New York
, 66 NY2d 289, 295, supra
; Topel v Long Is. Jewish Med.
, 55 NY2d 682, 684). However, a psychiatrist may be held liable if
the decision was less than a professional medical determination. A decision is
not insulated by the medical judgment rule if it is not based upon a careful
examination (Seibert v Fink
, 280 AD2d 661; Bell v New York City Health
and Hosps. Corp.
, 90 AD2d 270, 282).
Claimant contends that in February, 1996 Dr. Patel's decision to continue
was not founded upon a careful examination and was, therefore,
not an exercise of required professional judgment. Upon the Court's review of
the testimony of the witnesses, including the two expert witnesses and the
medical record, the Court does not accept claimant's proposition. The Court
finds that Dr. Patel's decision was based upon reasoned, if erroneous, medical
As set forth above, the two psychiatric experts had differing opinions
regarding the state of claimant's schizophrenia in 1995 and early 1996 and the
level of care claimant received at the clinic. My observation of the witnesses
as they testified indicated absolutely no evasiveness, lack of candor or lack of
professional reasoning. The Court finds the two experts to be highly credible.
In such cases, the Court must deal with the burden of proof which rests upon
claimant. The Court finds that claimant is suffering from a chronic mental
disorder - schizophrenia. However, the Court finds that the evidence fails to
establish that claimant was in a state of spiraling decompensation as asserted
by Dr. Goldstein rather than the sine wave pattern described by Dr. Russakoff.
The Court accepts Dr. Russakoff's opinion that since the medical record contains
references to claimant's "hope" and "future plans", he was not
decompensating. Based upon the testimony of these two
respected experts, the Court concludes that the practice of psychiatry is more
an "art" than a "science" and that while Dr. Patel may not be the best doctor in
the field of psychiatry, he did not deviate from accepted standards of practice.
Further, while communication between the therapist and Dr. Patel was not optimal
and documentation in the record could have been better, the Court cannot find a
deviation from accepted medical practice on this record. Dr. Patel testified
that although he could not recall formally sitting down with the therapist and
discussing claimant's care with him, he and the therapist discussed claimant.
He also stated that if the therapist believed claimant was not following the
treatment plan, he would have brought this to Dr. Patel's attention. Thus,
there was an open line of communication between the therapist and the doctor in
addition to the notes contained in the medical records. Minimal as this may be,
there is no proof that the therapist possessed any uncommunicated information
which would have altered Dr. Patel's judgment.
Claimant also asserts that the medical chart fails to contain sufficient
information regarding claimant's delusions and that Dr. Patel failed to conduct
a suicide risk assessment of claimant. Again, the experts disagree. Dr.
Goldstein says the record does not contain enough information regarding the
content of claimant's delusions and that the failure to record the content is a
departure from accepted practice. Dr. Russakoff testified that the record could
have been more detailed, but provided enough detail about claimant's delusions,
for instance, the fact that claimant believed the clinic staff was trying to
poison him, to not be a deviation from accepted standards.
Dr. Patel stated he never performed a formal suicide risk assessment of
claimant. He testified at trial that each time he met with claimant he
performed a suicide risk assessment but that he did not record his findings in
the medical chart because he did not see claimant as a suicide risk. Dr.
Russakoff stated it is not a departure from accepted practice to not record
In his post-trial brief, claimant's counsel asserts that Dr. Patel stated at
his deposition that he did not recall making a suicide risk assessment of
claimant (Exhibit 1, Page 32) and that Dr. Patel's trial testimony is less than
truthful. The doctor testified at his deposition: