RICHARDSON v. STATE OF NEW YORK, #2006-015-126, Claim No. 110501, Motion No.
In an action for psychiatric malpractice, defendant failed to establish its
prima facie entitlement to summary judgment dismissing the claim. No expert
affidavit or competent medical evidence was submitted to establish that
defendant did not deviate from the applicable standard of care when it
repeatedly discharged claimant's decedent from its mental health care facility
despite his documented suicidal ideations. Whether claimant's suicide was
proximately caused by defendant's malpractice was a question of fact precluding
summary judgment. Summary judgment dismissing zone-of-danger claim by infant
claimant was also denied.
GLENDA B. RICHARDSON, as Limited Administrator of the Estate of WILLIAM RICHARDSON; GLENDA B. RICHARDSON, as parent and natural guardian of ABDUR RICHARDSON; and GLENDA B. RICHARDSON, individually
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Smalline and HarriBy: Martin D. Smalline, Esquire
Honorable Eliot Spitzer, Attorney General
Michael W. Friedman,
EsquireAssistant Attorney General
October 23, 2006
See also (multicaptioned
Defendant's motion for summary judgment dismissing the claim in its entirety
for lack of merit or in the alternative for an order dismissing the second and
third causes of action on the ground that claimant Glenda Richardson and her
infant son Abdur Richardson were not within the zone of danger is denied. The
following facts are not in dispute: On August 25, 2003 claimant's decedent
(William Richardson) presented himself to the Capital District Psychiatric
) complaining of depression and
expressing suicidal ideations. He was discharged from CDPC on August 26, 2003
but was taken to Albany Medical Center (AMC) later that day after ingesting
multiple pills in an admitted attempt to kill himself. AMC transferred the
decedent to CDPC for evaluation and treatment. On August 27, 2003 William
Richardson was involuntarily transferred from CDPC to Columbia Memorial Hospital
(Columbia) in Hudson, New York due to a shortage of beds at CDPC. He remained
at Columbia until he was discharged on September 2, 2003.
On September 5, 2003, claimant Glenda Richardson transported the decedent to
CDPC at the suggestion of an outpatient counselor at Clearview Center, Inc.
(Clearview), for treatment of behaviors observed at Clearview which included
crying and expressing that he wanted to ingest a bottle of pills. CDPC
discharged the decedent three hours later upon his agreement that he would
reside with an unidentified friend and continue outpatient treatment at
Later that day the decedent cut himself on the left forearm in another apparent
suicide attempt and was taken to AMC for suturing. There he was diagnosed as
depressed and suicidal and was transferred to CDPC for evaluation and treatment.
The decedent was discharged from CDPC on September 6, 2003, less than twelve
hours after being received there, on the condition that he reside with an
unidentified friend and continue outpatient treatment at Clearview. This was
the same discharge plan under which the decedent was released from CDPC the
The decedent arrived at the claimant's apartment following his discharge from
CDPC on September 6, 2003 distraught and agitated. The claimant attempted to
drive him to CDPC but he jumped out of the car. The claimant called the crisis
unit at CDPC and was told to call the police, which she did. The police
responded but could not find the decedent.
In the early evening of September 6, 2003 the decedent arrived at his family's
second floor apartment, extinguished an overhead electric light and set himself
on fire using an accelerant. Claimant alleges that she observed the decedent
from inside the glass door of her apartment. She watched as the decedent struck
a match, became engulfed in flames and then tumbled down the stairs to the first
floor where other tenants extinguished the flames. Claimant, Abdur and
claimant's 21-year-old daughter escaped the apartment through a rear exit. The
decedent was transported to AMC and airlifted to the Westchester Medical Center
where he died on September 7, 2003. His injuries included burns over 90% of his
body. Although Ms. Richardson states in her affidavit that her son Abdur was
standing next to her at the time she observed her husband through her apartment
door she also states that after the decedent set himself alight she went to her
bedroom and "grabbed my son, Abdur, who had a sheet over his head in the
Defendant moves for summary judgment seeking an order dismissing the claim on
the ground that the State cannot be held liable for the death of the decedent
since his discharge from CDPC on September 6, 2003 was a professional medical
determination reached after careful examination and a review of the decedent's
medical record and other available information.
Alternatively, the defendant seeks to dismiss the second and third causes of
action for emotional injuries sustained by claimant Glenda Richardson and Abdur
Richardson arguing that they were not within the zone of danger when the
decedent set himself on fire. Claimant opposed the motion arguing that
CDPC’s decision to release the decedent was not founded upon a careful
examination of the patient or a review of accurate medical records since the
record contained erroneous information regarding the decedent’s recent,
prior suicide attempts.
The rules applicable to the determination of a motion for summary judgment were
clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68
NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must
make a prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to demonstrate the absence of any material issues
of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853;
Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie
showing requires a denial of the motion, regardless of the sufficiency of the
opposing papers (Winegrad v New York Univ. Med. Center, supra, at
p 853). Once this showing has been made, however, the burden shifts to the
party opposing the motion for summary judgment to produce evidentiary proof in
admissible form sufficient to establish the existence of material issues of fact
which require a trial of the action (Zuckerman v City of New York,
supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden
through the submission of evidentiary proof in admissible form (Rifenburgh v
Wilczek, 294 AD2d 653).
"It is well established that doctors or a governmental subdivision of the State
that employs them cannot be held responsible for damages resulting from the
actions of a psychiatric patient who has been released when the patient’s
release is a matter of professional judgment (see, Schrempf v State
of New York, 66 NY2d 289, 296-297; St. George v State of New York,
283 App Div 245, 248, affd 308 NY 681, rearg denied 4 NY2d 960;
Krapivka v Maimonides Med. Center, 119 AD2d 801, 802; Wilson v State
of New York, 112 AD2d 366, 367)" (Mohan v Westchester County Med.
Center, 145 AD2d 474, 474-475). For liability to attach in such cases it
must be shown that the decision to release the patient "was something less than
a professional medical determination"
(Bell v New York City Health & Hosps. Corp., 90 AD2d 270, 282).
In support of the State’s contention that the decedent’s release
from CDPC on September 6, 2003 was in fact the result of a professional medical
determination the defendant offered a transcript of the examination before trial
of Nashwa Hasabou, M.D. (Exhibit B). Dr. Hasabou was a resident working in the
CDPC Crisis Intervention Unit on September 6, 2003 who authorized the decedent's
discharge from CDPC on that date. Dr. Hasabou testified that prior to signing
the decedent’s discharge from CDPC on the morning of September 6, 2003 she
"looked at some of the records" but could not recall which records she reviewed
(see, Exhibit B, p. 6). The witness recalled that the decedent indicated that
he would go to a friend’s house in Albany upon discharge and would avoid
contact with his wife since she was an alleged stressor. With regard to the
accuracy of the decedent’s records Dr. Hasabou stated that if she
discovered an item in a nurse’s admission and screening report that she
knew was erroneous based upon the patient’s actual history she would
definitely make a note in the record and advise staff and the attending
physician. The witness was then asked to examine a screening and admission note
for August 26, 2003 in which it was noted that the decedent called 911 after he
took multiple pills in an attempt to kill himself. She then compared that with
the screening and admission note for September 5, 2003 which states "[p]er
records patient has no suicide behaviors attempts" ( Exhibit B, pp. 20-21).
The witness admitted that despite the obvious error in the September 5, 2003
entry she did not modify or correct the decedent’s September 5, 2003
medical record to indicate a prior suicide attempt.
The witness acknowledged that the decedent had been prescribed 2 mg of
on September 5, 2003 but she did not
consider the effect of the medication in evaluating the decedent’s self
report that he would not harm himself or others. Dr. Hasabou recalled being
instructed by Dr. Breslow that in deciding whether to rely upon a
patient’s self report "everything needs to be taken into account. The
patient report, the family report. And, ah, we cannot really make a decision if
a patient is safe or not without contacting a third party " (Exhibit B, p. 43 ).
The witness related that a male nurse at CDPC contacted decedent’s father
and wife regarding the decedent and his potential discharge. The September 6,
2003 admission chart contains no reference to any such contacts (Exhibit B, pp.
On cross-examination the witness stated that she had not personally seen the
decedent prior to September 6, 2003. When Dr. Hasabou arrived at CDPC for work
that morning the decedent had already been cleared for discharge but
decedent’s father had not appeared as expected. Although an evaluation of
the decedent had been performed during the night shift by Dr. Ni Ni Hla, a
resident supervised by Dr. Malerba, the witness herself determined that the
decedent was "fine to go" (Exhibit B, p. 61). The decedent denied that the
cutting of his forearm on September 5, 2003 was a suicide attempt,
characterizing it as an attempt to get his wife’s attention (Exhibit B,
p. 62). The decedent told Dr. Hasabou that he was going to spend the weekend
with his father and that he planned to leave the Albany area. The witness
testified that she discussed decedent's post-discharge plans with Dr. Breslow,
her supervisor, before executing the decedent’s discharge.
Defendant also provided a transcript of the examination before trial of Richard
Breslow, M.D. which took place on January 19, 2006. Dr. Breslow testified that
he reviewed the decedent’s records from August 25 and 26, 2003 and
September 5, 2003 prior to ratifying the decedent’s discharge plan on
September 6, 2003. Dr. Breslow did not personally examine or evaluate the
decedent but observed the decedent "in the unit milieu"( Exhibit C, p. 8
The witness testified he was aware that according to the September 5, 2003
discharge plan the decedent was to stay with an unidentified friend and continue
outpatient treatment at Clearview although the September 6, 2003 admission
chart indicates that the decedent went to his wife’s house and cut himself
after being discharged. Dr. Breslow assumed that the decedent was going to stay
with the same unidentified friend following his discharge on September 6, 2003.
CDPC protocols in effect in September 2003 did not require that individuals
identified as providing support to a patient following discharge be contacted by
telephone prior to the patient's release. The witness made no such call prior
to the decedent's discharge on September 6, 2003.
Dr. Breslow acknowledged that an addendum to a screening and admission note
dated August 26, 2003 contains several references to a suicide attempt by the
decedent. However, the CDPC screening and admission note for September 6, 2003
in the area labeled assessment of risk factors stated "per records patient has
no suicidal behaviors, attempts" (Exhibit C, p. 20). The witness agreed
that the entry indicating no prior suicidal behaviors/attempts was incorrect in
light of information contained in the decedent's record from August 26, 2003.
Although he contended that he thoroughly reviewed the decedent's records prior
to authorizing his September 6, 2003 discharge, Dr. Breslow was unable to state
a reason why he did not correct the erroneous entry although he has made such
corrections in the past. The witness further agreed that an entry contained in
decedent's September 5, 2003 admission and screening report was incorrect
insofar as it indicated "no actual suicide attempts" despite CDPC’s own
transfer of decedent to Columbia Memorial in August 2003 following his attempt
to kill himself as noted in his records from August 26, 2003 (Exhibit C, pp.
The witness next compared an Albany Medical Center Emergency Room record made
at the time of treatment for decedent’s laceration on September 6, 2003
and his later CDPC admission note. The former indicated "forearm laceration
and depression and suicidal ideation" (Exhibit C, p. 28) while the latter
states that the decedent denied that his self-inflicted wound was a suicide
attempt (Exhibit C, p. 29).
In determining whether to trust the decedent’s personal guarantee of his
own safety Dr. Breslow took into account a number of factors including the fact
that the "patient was expressing hope for his future" (Exhibit C, p. 33) as
evidenced by his concerns for a favorable outcome of then-pending court
Dr. Breslow spoke to both Dr. Hasabou and Nurse Campinella about the decedent
before ratifying the September 6, 2003 discharge plan but did not speak to
either concerning the decedent’s non-compliance with the discharge plan
approved on September 5, 2003. He admitted that psychiatric residents may serve
a rotation in the Crisis Intervention Unit (CIU) prior to commencing or
completing their academic instruction in emergency psychiatry. The witness did
not know if Dr. Hasabou had attended an emergency psychiatry class taught by the
witness prior to September 2003 and in advance of her work in the Crisis
When asked if he considered decedent’s ingestion of pills on August 25,
2003 followed by his self-inflicted wrist injury on September 5, 2003 as an
escalation in potential for self-harm Dr. Breslow responded "not necessarily"
(Exhibit C, p. 55) citing the decedent’s future orientation discussed
earlier in his testimony. The witness did not know if Dr. Hasabou spoke to any
of the decedent’s family members (Exhibit C, p. 59) on September 6, 2003.
However, he did recall that he observed the decedent interacting with Nurse
Campinella and that he was laughing and joking at that time.
The witness acknowledged that a continuation sheet from the September 6, 2003
admission contained the following note regarding a call received from decedent's
wife: "we needed to do something with her husband as she was afraid of him"
(Exhibit C, pp. 62-63). The note further reflects that Mrs. Richardson had
reported to CDPC's Nurse Spann that the decedent had jumped out of her car as
she approached Albany Medical Center. She asked for the intervention of the
mobile crisis team which was not then available. Finally, the note also
indicated that Mrs. Richardson remarked "you know you should have kept him"
(Exhibit C, p. 64).
On cross-examination the witness noted that he is one of the attending
psychiatrists in the CDPC crisis unit and that he has worked in the unit for 17
years. Dr. Breslow also is an attending psychiatrist at Albany Medical College
where he teaches emergency psychiatry and psychotherapy. Dr. Breslow discussed
CDPC’s transfer of the decedent to Columbia Memorial on August 27, 2003 as
well as his admission and discharge from Columbia on September 2, 2003. He
explained the Clearview program to which the decedent was discharged in the
A A variety of programs in the community and they have, um, out patient
psychiatric staff and, ah, day program staff. And, um, they have a clinic and,
um, they run a number of residential programs. So it’s an entry into a
lot of community treatment in the Albany area. (Exhibit C, pp. 77-78).
As to the witness’s ratification of the decedent’s discharge from
CDPC on September 6, 2003 Dr. Breslow explained the factors he relied upon as
A Ah, yes, um, I relied on a number of factors. Um, the patient, at that
point in time, um, had brightened considerably in terms of his affect. Was not
showing any cumulative depression. Had - - he, um, denied being suicidal. Um,
he was, um, future oriented with, um, strong discussion about following up at
the Clearview program. Optimistic about getting his legal problem cleared in
terms of a court appearance he had scheduled. And also some optimism about the
possibility of, um, starting back at his job. He had been suspended from his
work but had some indication if he were in treatment that he could - - and
working in treatment, that he could, um, get the job back at St. Peter’s
Q All right, and that judgment was based with the knowledge of his previous
And that was your professional conclusion or judgment that given all those
circumstances was acceptable to allow him to leave, correct?
(Exhibit C, pp. 79-80)
On redirect examination Dr. Breslow stated that the decedent had attended a
session at Clearview following his discharge from Columbia Memorial and prior to
the September 5, 2003 incident in which the decedent cut his wrist. The witness
denied that CDPC was contacted by Clearview on September 5, 2003 regarding the
decedent’s condition but admitted that he was aware that Clearview had
recommended to Mrs. Richardson that she take the decedent to CDPC for evaluation
on September 5, 2003.
As noted above in cases involving the alleged negligent discharge of a
psychiatric patient liability cannot attach unless it is shown that the decision
to release the patient was something less than a professional medical
determination (Bell v New York City Health & Hosps. Corp., 90 AD2d
270, 282 supra). Specifically, the Court in Bell, after noting
the potential chilling effect a finding of liability may produce, stated the
following at pages 280-281:
Nevertheless these significant policy considerations do not in any sense
abrogate the psychiatrist's duty to rest his decision to release the patient
upon a careful and competent examination (Pike v Honsinger, 155 NY 201,
210, supra; DuBois v Decker, 130 NY 325, 330, supra;
see, also, Fatuck v Hillside Hosp., 45 AD2d 708).
A decision that is without proper medical foundation, that is, one which is not
the product of a careful examination, is not to be legally insulated as a
professional medical judgment (see Larkin v State of New York, 84
AD2d 438, 445-446; Herold v State of New York, 15 AD2d 835, 836;
Weatherly v State of New York, 109 Misc 2d 1024, 1029; Hirschberg v
State of New York, 91 Misc 2d 590, 595; O'Neil v State of New York,
66 Misc 2d 936, 943; Whitree v State of New York, 56 Misc 2d 693,
708). Stated otherwise, '[p]hysicians are not liable for mistakes in
professional judgment, provided that they do what they think best after
careful examination * * * However, liability can ensue if their judgment
is not based upon intelligence and thus there is a failure to exercise
any professional judgment' (Pigno v Bunim, 43 AD2d 718, affd 35
NY2d 841; emphasis supplied).
The defendant’s submissions on the motion including the testimony of Drs.
Hasabou and Breslow at their respective examinations before trial have not
satisfied the movant’s burden of demonstrating the absence of any material
issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853;
Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395). At this juncture the adequacy of Dr.
Hasabou’s and Dr. Breslow’s inquiries to determine if the decedent
was a risk to himself remains an unanswered question. Similarly, even if the
doctors were negligent in failing to properly assess the risk of
decedent’s suicide, the issue of legal causation requires a trial
(see Fontinas v Westchester Co. Med. Ctr., 300 AD2d 437; Bell v
New York City Health & Hosps. Corp., 90 AD2d 270, 284).
Since the movant’s burden in this regard has not been met it is
unnecessary to address the claimant’s opposition to the motion.
Finally, the Court must address the alternative relief requested on the motion
which is the dismissal of the claimant’s second and third causes of action
on the ground that Glenda and Abdur Richardson were not within the zone of
danger of decedent’s tragic immolation. In Bovsun v Sanperi (61
NY2d 219) the Court of Appeals held (at pages 223-224):
Where a defendant's conduct is negligent as creating an unreasonable risk of
bodily harm to a plaintiff and such conduct is a substantial factor in bringing
about injuries to the plaintiff in consequence of shock or fright resulting from
his or her contemporaneous observation of serious physical injury or death
inflicted by the defendant's conduct on a member of the plaintiff's immediate
family in his or her presence, the plaintiff may recover damages for such
The court has already held that there is a material question of fact as to
whether the defendant was negligent and, if so, whether its negligence was a
substantial factor in bringing about the decedent’s injury and death.
Since injuries allegedly sustained by family members within the zone of danger
under Bovsun (supra) are recoverable only upon a demonstration of
proximate cause, it would be premature to dismiss the claimant’s second
and third causes of action.
Defense counsel asserts that the claimant has presented no proof that she and
Abdur suffered emotional damages meriting recovery. In the absence of proof
from the movant establishing that no compensable damages were suffered the
adequacy of the non-moving party's proof is irrelevant. In this regard the
Court notes that the Court of Appeals in Bovsun discounted the argument
that the zone of danger rule is overly susceptible to fraudulent claims and
difficulty of proof. At page 231 the court stated:
'[T]he question of proof in individual situations should not be the arbitrary
basis upon which to bar all actions * * * In the difficult cases, we must look
to the quality and genuineness of proof, and rely to an extent on the
contemporary sophistication of the medical profession and the ability of the
court and jury to weed out the dishonest claims'.
We are not suggesting that any trifling distress would be sufficient to support
recovery of damages under the zone-of-danger rule. Rather, the emotional
disturbance suffered must be serious and verifiable (see Restatement,
Torts 2d § 436, subd , Comment g). Additionally, the compensable
emotional distress must be tied, as a matter of proximate causation, to the
observation of the serious injury or death of the family member and such injury
or death must have been caused by the conduct of the defendant.
Here the Court cannot determine as a matter of law that Abdur Richardson did
not witness his father’s suicide attempt on September 6, 2003 prior to
fleeing the apartment (cf., Wallace v Parks Corp., 212 AD2d 132 ).
The question of whether Glenda and/or Abdur Richardson were threatened with
bodily harm by reason of being within the zone of danger is a material issue of
fact requiring resolution at trial (see Kurth v Murphy, 255 AD2d
Accordingly, this court declines to dismiss claimant’s second and third
causes of action on this motion.
Defendant’s motion for summary judgment is therefore denied in all
October 23, 2006
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
Notice of motion dated June 7, 2006;
Affirmation of Michael W. Friedman dated June 7, 2006 with exhibits;
Affirmation of Martin Smalline dated July 7, 2006 with exhibits;
Affidavit of John J. Lucas, M.D. sworn to June 22, 2006;
Affidavit of Glenda B. Richardson sworn to July 7, 2006;
Affirmation of Michael W. Friedman dated July 31, 2006.
.CDPC is a State operated psychiatric
.Identified by the witness as an antilytic
i.e. a drug prescribed to decrease anxiety.