New York State Court of Claims

New York State Court of Claims

LAVERTY v. THE STATE OF NEW YORK, #2006-033-555, Claim No. 107842


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

James J. Lack
Claimant’s attorney:
Taub & Marder, Esqs.By: Kenneth Marder, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney General
By: Ross N. Herman, Assistant Attorney General andMary Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for damages by Francis Laverty (“claimant”) based upon the alleged medical malpractice of the defendant. Beginning on August 10, 2005, a plenary trial was held. The claim of Helen Laverty is derivative in nature.
On June 28 and 29, 2002, claimant, an 82-year-old man, was at the State University Hospital at Stony Brook, Stony Brook, New York ("defendant" or “hospital”). Claimant alleges that he was not monitored as he was supposed to be and that this failure to monitor him allowed claimant to wander in the hospital, fall and break his hip.
In support of claimant’s case, claimant and his wife testified. Claimant’s son, Michael Laverty, also testified. Claimant called two former residents of the hospital, Dr. Peter Ottavio and Dr. Frank Tsai, and Sandra DeFalco, R.N. (“Nurse DeFalco”). Claimant also called two experts, Dr. Irving Etkind, an orthopedist, and Dr. Richard Klein, an internist.
Michael Laverty testified that until just a few months before this incident, his father was capable of all physical activities with no limitations. Claimant was hard of hearing, but no longer wore hearing aids. On June 28, 2002, Michael went to his parents’ home after receiving a call from his mother concerning claimant. While at his parents’ home, Michael convinced his father to go to the hospital. During his time with his father, Michael noticed claimant seemed confused and off balance. At the hospital, Michael observed his father answer questions posed by Dr. Ottavio. Michael stated that his father answered the questions “somewhat” but seemed confused during the test.
Dr. Ottavio testified that he was with claimant approximately one and a half hours in the emergency room. During this time, Dr. Ottavio conducted a mini-mental status exam. Claimant scored 28 points out of a possible 30. Claimant lost two points for not knowing if it was late June or early July.
Dr. Ottavio said claimant answered questions appropriately and without help from family members, and, as a result, restraints were not appropriate for this patient. Claimant gave no indication that he would attempt to leave his bed.
In addition, claimant complained of chest pains. According to Dr. Ottavio, restraints could exacerbate this condition.
Nurse DeFalco testified that she conducted a nursing evaluation of claimant. She testified that claimant experienced some periods of confusion but that he answered her questions appropriately. Nurse DeFalco did determine that claimant was a high risk for falls. Therefore, the side rails of claimant’s bed were placed in the “up” position and claimant was instructed to use the call bell for any assistance. In her judgment, claimant heard and understood these instructions. Nurse DeFalco testified that she would have noted any problem with following instructions in claimant’s chart.
Dr. Richard Klein
testified as claimant’s expert. Dr. Klein testified that claimant was admitted to the hospital and the defendant’s employees and doctors departed from good and accepted medical standards by not restraining claimant. He opined that claimant should have been diagnosed with senile dementia and restrained in his bed. On direct testimony he noted that the nurse that admitted claimant noted that he was hard of hearing, at a high risk of falling and disoriented. On cross-examination, Dr. Klein admitted that the nurse’s note stated that claimant was confused not disoriented (p. 530 of trial transcript).
On cross-examination about standards for restraining elderly patients, Dr. Klein stated that he was not familiar with the Joint Commission on Accreditation of Healthcare Organization (JCAHO) guidelines, or with the New York Code of Rules and Regulations. According to Dr. Klein, claimant should have been restrained or had someone present at his bedside. At the very least declared Dr. Klein, claimant should have been placed in a room next to the nurse’s station or have had a bed alarm. Dr. Klein testified as to the alternatives to restraints because he stated that there are risks of physical injuries to elderly patients when using restraints.
Defendant’s expert witness was Dr. Vincent Marchello.
Dr. Marchello testified that he was familiar with JCAHO, which is an accreditation committee which accredits most of the hospitals in the northeast region of the United States. Dr. Marchello testified that he reviewed defendant’s written policies regarding restraints at the time of claimant’s admission and found that the policies complied with JCAHO guidelines.
Dr. Marchello was asked if restraints would be appropriate for a patient exhibiting individual symptoms such as confusion, high fall risk, unsteady, history of falling, and hard of hearing. After answering no to each of these questions, Dr. Marchello was asked if physical restraints would be appropriate for a patient exhibiting all of these symptoms. Dr. Marchello again answered no. According to Dr. Marchello, physical restraints should only be used under extreme circumstances, such as a combative, psychotic or delusional patient who would “jump out a window” (p. 585 trial transcript) if not restrained. On cross-examination, Dr. Marchello testified that dementia is not something that the physicians in this case should have considered in claimant’s initial assessment at the hospital. Claimant did not have a long enough history of confusion and falls to warrant an initial consideration of dementia. In addition, Dr. Marchello testified that there are no standards in New York or in the JCAHO regarding the alternatives to physical restraints claimant proposes.
Dr. Marchello opined that the treatment of claimant, including the raising of bed rails, was within good and accepted medical practice at the time of claimant’s admission.
The Court of Appeals, in Killeen v State of New York, 66 NY2d 850, held:
The State owes patients in its institutions a duty of reasonable care to protect them from injury, whatever the source (e.g., Comiskey v State of New York, 71 AD2d 699). This does not, however, render the State an insurer or require it to keep each patient under constant surveillance (Hirsh v State of New York, 8 NY2d 125, 127). The degree of care owed is commensurate with the patient's capacity to provide for his or her own safety (Zophy v State of New York, 27 AD2d 414, affd 22 NY2d 921; 1 NY PJI2d 128-130).

(at 851 - 852). The duty of reasonable care owed is dependant upon the patient’s physical and mental infirmities known to the hospital employees. However, constant supervision of each patient would place an undue burden upon the State of New York (Mulberg v State of New York, 35 AD2d 856).
In Yamin v Baghel, 284 AD2d 778, the Court was faced with an 89-year-old patient who was not placed in physical restraints in a nursing facility. Plaintiff got out of bed unassisted to go to the bathroom. Unfortunately, plaintiff fell and broke her hip. The Court held that to determine whether defendant breached their duty of care to plaintiff required consideration of the standard of care customarily practiced in other such facilities. The Court noted that expert testimony was necessary to determine if defendant breached its duty of care.
In the present case, there is no dispute that claimant was a high risk for falling. The question before this Court is whether defendant took adequate precautions to prevent the fall. Accordingly, this Court must look to the standard of care customarily practiced in other emergency rooms doing initial assessments of patients. The Court must rely on the experts presented by the parties. The Court finds claimant’s expert to be lacking as a resource on the standard of care for like facilities. Dr. Klein is not an emergency room doctor and deals with patients after they have been admitted. Most lacking in this expert is any familiarity with the standard of care for most hospitals in the northeastern United States. It is incredible that he is unfamiliar with the standards of care set by JCAHO. As such, Dr. Klein was drawing on his subjective experiences and not the standard for the industry.
On the other hand, Dr. Marchello’s analysis focused on whether the written policies of defendant conformed to JCAHO standards. Dr. Marchello clearly stated that defendant’s policies conformed to the industry standard. As an expert in this area, he opined that given claimant’s presentation, the use of any restraints would not be appropriate.
This Court agrees that defendant’s actions were in conformity with good and accepted medical standards. Claimant was cooperative with all of defendant’s employees and showed no signs of being combative or attempting to resist treatment or staying in his bed. However, given that claimant was a fall risk, defendant needed to take precautions.
The Court finds that the use of the bed rails was an adequate precaution in attempting to prevent claimant from falling. Defendant had no reason to believe claimant would not follow the instructions given to him to use the call bell. The Court agrees with defendant’s expert that there was not a significant history at the time of claimant’s presentment to warrant consideration he was suffering from dementia.
While claimant was hard of hearing there is no evidence to suggest that he was unable to communicate or understand. In fact, the evidence is to the contrary. Nurse DeFalco and Dr. Ottavio conducted assessments of claimant. Dr. Ottavio’s assessment lasted approximately one and a half hours. During the assessments, claimant answered on his own and appropriately.
Based upon the foregoing, the Court finds in favor of defendant. The Clerk of the Court is directed to close the file. All motions not specifically ruled upon are denied.
Let judgment be entered accordingly.

March 30, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].Dr. Ottavio was aware that claimant had one episode of incontinence which was caused by not being able to get out of bed as he was unsteady on his feet.
[2].Dr. Klein is a physician licensed in New York since 1967. He was the chief of infectious disease at Fordham and Misericordia Hospitals. At the time of trial, he was an attending physician at Northern Westchester Hospital and on staff at Phelps Hospital and Westchester County Medical Center.
[3].Dr. Marchello has been licensed in New York since 1987 and is currently board certified in internal medicine and geriatric medicine. He has served as Medical Education Coordinator and Director of the Alzheimer’s Special Care Unit at the Jewish Home and Hospital; Medical Director of Kings Harbor Multicare Center; and Medical Director of Metropolitan Jewish Geriatrics Center. At the time of trial, he was on the staff of Mount Sinai Medical Center and Maimonides Medical Center where he was teaching Geriatrics to medical students and fellows. Also, he holds an academic appointment at Albert Einstein Medical School. He has authored a number of articles, including ones on the use of physical restraints, as well as evaluating and treating dementia.