New York State Court of Claims

New York State Court of Claims

D.W. v. THE STATE OF NEW YORK, #2005-013-503, Claim No. 103387


Case Information

In the Matter of D.W. Claimant's name has been redacted for purposes of confidentiality.
Claimant short name:
Footnote (claimant name) :
Claimant's name has been redacted for purposes of confidentiality.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 6, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, D.W., was sexually assaulted by a male nurse while a patient at the Rochester Psychiatric Center (RPC). The assault took place on February 25, 2000 on the Mentally Ill Chemically Addicted (MICA) Ward at the facility. The assailant, David Miller, had been in the Defendant's employ as a registered nurse since November 29, 1999, and had been working the 3:00 to 11:00 p.m. shift since January 3, 2000. He was assigned to Claimant's ward as the charge nurse on the night of the incident.

Claimant had been previously diagnosed as suffering from bipolar disorder and chemical addiction and had been treated at various facilities at least ten other times as an inpatient. Her placement at RPC came as a consequence of having violated her parole which initially resulted in her incarceration in the Wayne County Jail for six months. At a subsequent parole hearing she was offered the option
of either returning to a state facility or entering into an inpatient program for treatment for both her bipolar condition and her drug addiction. She chose to enter the inpatient program at the Rochester Psychiatric Center, a facility operated by the Defendant.
One of the Claimant's recognized problems was a dependancy on male companionship, a factor which led her to the use of drugs, often at the urging of her male friends. According to Claimant, her primary psychiatrist, Dr. Stanko Rodic, told her that her dependancy on men was one of the contributing causes of her mental illness and drug problems. He placed in her record a note discouraging her request for visitation with a particular male whom she had been seeing prior to her hospitalization, as Dr. Rodic felt it would interfere with her treatment.

Sometime prior to the evening of the assault, D.W. had been placed on suicide watch due to her state of depression over the approaching anniversary date of her mother's suicide. When a patient is placed on suicide watch the staff on duty for that shift is required to look in on the patient at 15-minute intervals. That supervision apparently was being done, and in any event is not an issue in this case.

David Miller was the nurse on duty on the ward to which Claimant had been assigned, and he had worked on the ward for a period of time prior to the assault. Claimant stated that, while she knew Miller as a nurse, he was not someone that she would discuss any concerns with. She testified at trial that on one occasion prior to February 25, Miller made an inappropriate sexual comment to her pertaining to the tension she was experiencing during this period of time.[1]
Claimant also testified that she then told RPC employee Larry Tyler, a Mental Health Therapy Aide (MHTA) assigned to work with mentally ill, chemically addicted (MICA Ward) patients who had been assigned to Claimant's ward, of Miller's comments. She stated that she felt that she could trust Tyler and, since such conduct was expressly against hospital policy, felt that Tyler would see to it that it was reported to the proper person for disciplinary action against Miller.
Tyler testified at trial that he could not recall ever being told of the statement but acknowledged that it was possible that Claimant may have told him of that incident, the date of which has not been specified. He stated that since such comments were against hospital policy employees were required to write up a report detailing such comments and to file it with their superiors. Since no report was on record he felt that Claimant had not reported the incident to him.

On the evening of the assault Claimant prepared for bed at around 10:00 p.m. Miller came into her room and gave her 6 Benadryl pills wrapped in tin foil telling her to take them as they would help her relax and sleep.[2]
She testified that Miller then left her room but returned around 10:30 p.m. or so and, after a brief period, began to perform oral sex on her. Within a short while after the sexual assault had commenced, Larry Tyler knocked on her door and then opened it, intending to tell Claimant that she had a phone call, but of course saw what was happening. Miller immediately left the room saying in effect that he was in trouble and needed to speak to Tyler. It should be noted that David Miller was Larry Tyler's immediate supervisor at RPC, and that Tyler was still a "trainee" at the time of these events, having been first employed at RPC in July 1999.
Tyler apparently went immediately to Sandra (Sandy) Lucas, a Nurse Administrator at RPC, to report what he observed. Lucas instructed him to go back to the floor and she then put into motion procedures to investigate and report the incident. Statements were taken from Claimant and Tyler in accord with RPC administrative policy. Statements also were taken by the Rochester Police Department (RPD). Miller was immediately relieved of his duties at RPC, placed on administrative leave and terminated on March 1, 2000. He was arrested and convicted of the charge of attempted sodomy in the 1st degree and was sentenced to a state correctional facility.

Liability is premised on two primary theories. First, Claimant contends the Defendant breached its duty of care in that it negligently
retained Miller after a background check disclosed that he had lied on his employment application, and second that it negligently hired and failed to properly supervise Miller. This second theory relies upon the alleged prior verbal interaction between Miller and Claimant with its sexual overtones, and Claimant's purported reporting thereof to Larry Tyler.
First I will address the alleged breach of duty relating to the background check. Miller initially applied for employment as a nurse at RPC on August 1, 1999. Included among the forms he signed at the time of his application was a clear notification that "[f]alse statements made on the application will be considered as grounds for termination of services when discovered" (Exhibit A).[3] Another of the forms completed by Miller required disclosure of any prior conviction(s) of a crime, which he answered in the negative. The investigation into Miller's criminal background could not be commenced until after he had been hired, which as noted above did not occur until November 29, 1999. The cost of fingerprinting, etc., is an expense of the employee and is automatically deducted starting with the employee's first paycheck, and thus any such criminal background investigation is not initiated until some time after employment starts.
However, prior to Miller's hiring, inquiries to his previous employers were initiated. While verification had not been received from his second most recent previous employer,[4]
confirmation of his dates of employment and position were received from two other former employers, including his then current employer at the time of his application to RPC. In each instance, the information received verified his term of employment and his position, and more significantly failed to disclose any negative comments regarding Miller's abilities to carry out his assigned tasks at RPC. The explanation for the limited detail regarding his prior employments and reasons for his leaving related to those employers' apparent concern for employee confidentiality. Indeed, it was established at trial that RPC itself only provides the same basic information with respect to any of its former employees.
In addition, a check by Defendant with the New York State Education Department revealed that at the time of his hiring Miller was in good standing and was a duly licensed registered nurse by the State of New York.

To the extent that Claimant has implied negligent hiring in RPC's purported failure to have made investigatory inquiry into a five-month gap in Miller's employment history preceding his then current employment when he applied to RPC, such a theory must be rejected. The record is devoid of any written standards or proffered expert opinion suggesting that this purported failure was a deviation from accepted practices in the human resources field, particularly given Miller's employment history and good standing with the New York State Education Department. The only support for such a theory is found in counsel's arguments, which are neither probative nor persuasive.

After he was hired, Miller went through an orientation period which continued until January 3, 2000. This was followed by a probationary period during which he was assigned as a night nurse on Claimant's unit. His first evaluation covered the period from January 3, 2000 to February 11, 2000, and he received a satisfactory rating.

On those forms inquiring about past criminal convictions, Miller failed to disclose that in 1975 he had pleaded guilty to disorderly conduct, a violation, in satisfaction of a charge of criminal possession of a controlled substance, a Class A misdemeanor, and also failed to disclose a plea of guilty to a charge of attempted unauthorized use of a motor vehicle, also a Class A misdemeanor, in 1981 (
see Exhibit 9, p. 93 and Exhibit 11, p. 41).
The Defendant learned of the two convictions after the Division of Criminal Justice Services (DCJS) completed its investigation and reported its findings to the New York State Office of Mental Health, which by letter dated February 22, 2000[5]
so advised Brian Rudes, the Executive Director of RPC, who received it on February 24, 2000. The letter was then forwarded by Rudes to the attention of the Director of Human Resources at RPC, Christine Hally, for whatever action was deemed appropriate.[6]
It is obvious that the letter's contents did not give rise to any immediate action regarding Miller's continuation of employment on the evening of Thursday, February 24, 2000, or the next evening, which was the date when the assault occurred. As explained by Brian Rudes, in situations such as this, it was the general practice that the Office of Human Resources would first investigate the nature of the conviction(s) and then call the employee in to explain his or her failure to disclose these matters and the circumstances surrounding the conviction(s). Christine Hally confirmed that this was the procedure followed when a background check revealed that an employee had given false personal information on the employment application. She also confirmed that there was no policy to put the employee under heightened supervision pending his or her appearance before the Office of Human Resources staff member assigned to review the matter.

It was clear, however, that more serious discrepancies or presumptive immediate risk to staff or patients would have generated a telephone call from DCJS to Brian Rudes, rather than a letter, and that his response would have been reflective of more exigent circumstances. Here of course, the convictions were relatively benign, remote in time, and did not implicate patient care. Therefore, normal procedures and practices were invoked.

After the employee has had an opportunity to explain his or her reason(s) for failing to disclose the matter which is the subject of the interview, the staff person who conducts the investigation makes findings and recommendations to the Director of Human Resources. Punishment may be as minimal as placing a letter in the employee's file or as severe as dismissal.

Here, however, no action was taken and, based on the proof in this record, none was contemplated until at the very earliest after the weekend.[7]

It is Claimant's contention that because of her vulnerability and that of patients such as her, the Defendant has a heightened duty to protect them from people such as Miller. She maintains that it was Defendant's duty to complete the entire background investigation of someone seeking employment as an aide or nurse in facilities like RPC before hiring, or, if hired, to place them under enhanced supervision until all aspects of the application review process are completed.

It is beyond cavil
that a hospital has a duty to safeguard the welfare of its patients from harm from its employees as well as third parties (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252-253). However, it is equally well established that a hospital is not an insurer of a patient's safety (Killeen v State of New York, 66 NY2d 850, 851). The degree of care owed to a patient is measured by the individual patient's capacity to provide for his or her own safety (Zophy v State of New York, 27 AD2d 414; affd 22 NY2d 921). The scope of the hospital's duty of care owed to its patients is always to be measured by the risks which are reasonably foreseeable (N.X. v Cabrini Med. Ctr., 97 NY2d at 253, supra).
In the case before me there is no persuasive evidence to lead me to the conclusion that the Defendant failed in its duty of care to Claimant, no matter how vile, reprehensible or repulsive Miller's criminal actions on the evening of February 25, 2000 were. One cannot view these circumstances without a sense of outrage regarding what occurred to Claimant, as vulnerable as she was, but that outrage regrettably cannot be converted
into liability under the facts of this case.
There is nothing before me that persuasively establishes that the Defendant had prior actual or constructive notice that Miller had a known proclivity to abuse patients, sexually or otherwise, under his care. Claimant relies on the alleged conversation she had with Larry Tyler when she reported the sexually explicit statement made to her by Miller. While the exact date of this alleged incident is unknown, Claimant testified at trial that it was "several days" prior to February 25, and that she told Tyler about it "within an hour after" it occurred. She also testified that Tyler said that "he didn't believe that [Miller] would say that to her." In an attempt to bolster her allegations, Claimant also references two written statements taken: one is a typewritten statement given to an RPC risk management staff member and signed by Claimant "within hours of her sexual assault" (Exhibit 7, pp. 11-12), and the second was handwritten by a second staff member, but not signed (Exhibit 7, pp. 13-14). As Claimant notes, both statements make mention of the purported sexual remark that Miller made to Claimant. Claimant suggests that these essentially contemporaneous reports, taken shortly after the incident in question, should be seen as confirmation that Miller did make such inappropriate sexual comments, and that Claimant told them to Tyler.

Tyler, while acknowledging that such comments by staff to patients were not to be tolerated, testified that he had no recollection of being told of Miller's comments some days prior to the assault. Frankly, given Tyler's inadvertent witnessing of the sexual assault, one might think that any recent event involving Claimant and Miller would have been recalled with greater clarity, and thus Tyler's equivocation on this issue is troubling to me. One might have expected him to have remembered whether he was told or not. While he does not deny that Claimant may have told him of the incident, he only says that he cannot recollect it.

I think a more likely scenario is that, if Claimant did relate Miller's comments to Tyler, they were related in such a jocular, offhand manner, that Tyler did not take them seriously or even think them to be true. This of course would account for his inability to recollect the conversation with any clarity. Moreover, both statements (Exhibit 7, pp. 11- 12 and pp. 13-14) contain support for this analysis. In the document signed by Claimant she said: "David Miller has always been friendly. I laughed the staff off and didn't take his comments seriously... I laughed it off. He was friendly and joking" (Exhibit 7, pp. 11-12; Exhibit BB). And in the second (unsigned) document, which it is agreed inaccurately references Tyler as the speaker when it should have referenced Miller, Claimant is quoted as saying that she laughed off Miller's inappropriate comments (Exhibit 7, pp. 13-14; Exhibit AA).

It thus appears to me likely that whatever Claimant may have said to Tyler regarding any "inappropriate" comments by Miller was not expressed in anything more than a kidding fashion. In any event, Claimant's proof does not establish that such comments were expressed to the extent of imposing a duty upon Tyler to have reported the complaint to his superior, and hence I cannot ascribe negligence in his failure to have done so. Moreover, while Claimant maintains that Tyler had a duty to report the conversation, there is no evidence to support that contention. In fact, she conceded in her post-trial memorandum that there was no such requirement in RPC's "Incident Reporting" memo (Exhibit 7, p. 119).

Claimant also sought to prove that since Tyler's immediate supervisor was Miller, that Tyler, as a new employee, did not want to create a problem for Miller or risk alienating a superior who could cause trouble for him in the future. I reject that as pure speculation and find Tyler's denial of this hypothesis at trial to be credible and belied by his immediate action of reporting the assault to Sandra Lucas who was the nurse administrator on the night of February 25, 2000.
I also reject Claimant's invitation to find that the Defendant had a "heightened" duty of care to protect its patients once it discovered the two prior undisclosed convictions. The evidence before me does not support such a finding. The preliminary investigation into Miller's prior employment history failed to disclose any past history of patient abuse. Further, there is nothing in the record of his license ever being suspended or revoked, and he was in good standing at the time he was hired. As noted previously, a criminal background check could not be undertaken until he accepted the offer of employment, and while it may have taken longer than usual, it is only in hindsight that the administration acknowledged that it might have been able to expedite its receipt. However, there was nothing in Miller's previous work history which would have alerted the Defendant that such a request was warranted.

Turning now to the DCJS conviction report, I cannot find that in and of itself it would or could have alerted the Defendant that there was a sexual predator in its employ. The two undisclosed convictions did not involve any sexual acts by Miller. Further each occurred long before his employment with the Defendant. Neither conviction was of a nature that would have given any indication that Miller was a threat to any patient. Nothing in this record convinces me that the procedures followed in this instance breached any duty of care to Claimant. I find that there was nothing disclosed in Miller's criminal past that would have required either immediate suspension, heightened supervision or convening of an immediate hearing. In this instance, given the fact Miller had no known history of sexual misconduct, and certainly there was no intimation of this type of behavior in the DCJS report, the risk of this sexual assault was so remote as not to be reasonably foreseeable (
N.X. v Cabrini Med. Ctr., 97 NY2d 247, 253, supra; Cornell v State of New York, 46 NY2d 1032).
Finally, to the extent that the claim may be read as suggesting that the Defendant was vicariously liable for the actions of Miller, I reject such a contention. Claimant had the burden of proving that the actions of Miller were in furtherance of the Defendant's business and within the scope of his employment. A sexual assault such as the one at bar is not in furtherance of RPC business and most certainly not remotely within the scope of Miller's employment but were solely based on his personal motives (
Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933).
Based on the foregoing I am compelled to dismiss this claim in its entirety. This is not intended to diminish
the gravity of this reprehensible assault or the resultant emotional as well as physical insult Claimant suffered, but rather, as a matter of law, I must find that the State bears no culpability for the acts of Miller. It is my task to put aside my own personal feelings regarding this matter and the sympathy compelled by this atrocious act and follow the well-defined law which preponderates against this claim.
All motions not heretofore ruled upon are now denied.


June 6, 2005
Rochester, New York

Judge of the Court of Claims

  1. [1]According to Claimant, Miller told her that " of the best ways to relieve stress was sex and that I should go to my room and relieve myself and if I needed help that he would assist me."
  2. [2]Benadryl was not a medication that had been prescribed for Claimant and apparently had been purloined by Miller from an RPC dispensary to which he had access.
  3. [3] This language does not mandate termination for false statements, but only that such will be considered as grounds therefor (emphasis supplied).
  4. [4] The Episcopal Church Home in Buffalo had not responded to inquiries on September 2, 1999 and October 4, 1999, but did respond to a telephone inquiry made after the incident in question here, and did verify Miller's dates of service and position. No further information was provided (see Exhibit 9, p. 98).
  5. [5] Exhibit 9, p. 112; Exhibit P.
  6. [6]It took DCJS approximately 84 days to complete its investigation on Miller and report its findings to the Defendant. While Georgianna Johnson, an Associate Personnel Administrator, estimated that six to eight weeks was a more typical waiting period, the record is devoid of any mandatory reporting period by statute, rule or regulation. Regardless, liability here is not premised on this putatively extended twelve-week period, but rather what did not happen once RPC received the report.
  7. [7] February 24, 2000, the date the letter was received by the Executive Director, was a Thursday.