New York State Court of Claims

New York State Court of Claims

FLOREZ v. THE STATE OF NEW YORK, #2003-029-309, Claim No. 97850


Alleged psychiatric malpractice. Court finds State doctor's actions in treating claimant did not deviate from accepted standards of care. Claim dismissed.

Case Information

STEPHEN FLOREZ The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Renfroe & QuinnBy: John E. Quinn, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 20, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 of liability.

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 Psychiatrist I.

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 March, 1994[1]
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 Clozaril[2], which was effective in treating schizophrenia and reducing the risk of suicide in schizophrenic patients.
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 "decompensating"[3]
, 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 occur.

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 Goldstein[4]
and the defendant's expert, Dr. L. Mark Russakoff[5] 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 independent living;

(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 attempt;

(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 his medication;

(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 attempt.

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"[6]
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 suicidal purpose.

The witness stated that claimant was poorly compliant with his medication. He does not believe claimant was
non-compliant. 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 260).
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 attempt.

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 York, 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 New York, 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 40 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. Center, 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 claimant's treatment
status quo 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 judgment.
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
conclusively 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 negative findings.

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:
Q "At any time while you were treating him did you ever make an assessment of his risk for suicide?

A I don't recall at this time, I guess" (Exhibit 1, Page 32).

The Court finds the above answer ambiguous. Did the doctor mean "I guess I don't recall if I made the suicide risk assessment" or "I don't recall, I guess I did make the assessment". The Court is unwilling to conclude, based upon my observation of the doctor at trial, that his trial testimony was untruthful or that he was recanting his deposition testimony.

If different circumstances, the Court might be more willing to find that the "less than detailed" medical record kept by Dr. Patel rose to the level of malpractice. If claimant had gone to a different psychiatrist and that doctor could not ascertain claimant's condition from a review of the chart there could be liability. However that is not the factual situation before the Court. Dr. Patel was familiar with claimant, his condition and his treatment of claimant. There is no evidence that the less than detailed medical chart led Dr. Patel to improperly treat claimant. Thus, the "less than ideal" records do not have any causal nexus to claimant's unfortunate behavior.

With regard to any alleged deviation from accepted standards of practice regarding claimant's medication, the Court cannot find Dr. Patel's response to claimant's poor compliance (which is not a novel situation) inappropriate nor was his decision not to treat claimant with parenteral medication which had already proven ineffective.

The Court also finds that claimant failed to establish by a preponderance of the credible evidence that the decision to allow claimant to move to independent living status was a deviation from accepted practice or was a proximate cause of the claimant's suicide attempt.

The differences of opinion between the medical experts who testified at trial does not provide adequate basis to hold the State responsible for malpractice (
Centeno v City of New York, 48 AD2d 812, affd 40 NY2d 932; Mohan v Westchester County Med. Center, 145 AD2d 474; Wilson v State of New York, 112 AD2d 366).
In deciding this claim, the Court is fully aware of the unfortunate circumstances presented by claimant. I am also greatly disturbed with many aspects of the systemic methods for dealing with incurable, unstable mental illness and the apparent fact that many of those most in need of protection cannot be accommodated by present circumstances. While the Court may wish that Dr. Patel had done a better job or worked for a better system, I cannot hold him liable for his failure to read minds or the reality of the systemic deficiencies in our present-day mental health profession.

Therefore, based upon the foregoing, I find that claimant has failed to prove by a fair preponderance of the credible evidence that the State committed malpractice in its care and treatment of claimant. Accordingly, the claim is hereby dismissed. Any motions made at trial, upon which the Court reserved decision, are now denied. The Clerk of the Court is directed to enter judgment accordingly.

August 20, 2003
White Plains, New York

Judge of the Court of Claims

[1] Although claimant had been a patient at the clinic since 1992.
[2] Also referred to as Clozapine.
[3] His schizophrenia may have been getting worse.
[4] The educational and medical background of the witness can be found in the Trial Transcript, Volume 2, Pages 160 through 164.
[5] The educational and medical background of the witness can be found in the Trial Transcript, Volume 2, Pages 234 through 238.
[6] This "waxing and waning" was described as more of a sine wave than a downward progression. It indicates alternating periods of improvement between decompensations.