COHEN v. THE STATE OF NEW YORK, #2007-016-040, Claim No. 110145
Defendant was found fully liable to a psychiatric patient who broke his ankle
during a struggle when his blood was involuntarily drawn; it had not followed
the regulations which permit a patient who objects to treatment to go through an
appeal procedure, thereby appreciably increasing the risk of physical
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Raymond A. Raskin, Esq.
Andrew M. Cuomo, Attorney
GeneralBy: Victor J. D’Angelo, Esq., AAG
September 5, 2007
See also (multicaptioned
This is the decision following the liability trial of Jacob Cohen’s claim
alleging that he was injured during the involuntary drawing of his blood on
October 13, 2004 while a patient at Kingsboro Psychiatric Center. Mr. Cohen,
who was then 37 years old, had a longstanding history of mental illness with
numerous psychiatric hospitalizations.
Claimant’s previous admission to Kingsboro Psychiatric had been on August
11, 2003. He was discharged on May 17, 2004 to a non-hospital setting, New
Beginnings. However, less than a week later, Cohen was admitted to Kings County
Hospital for “agitation, depression and paranoid ideation,” where he
remained until his September 10, 2004 transfer to the Kingsboro Psychiatric
facility as an involuntary, civil admission. (Cl exh 4, first unnumbered page).
Two witnesses took the stand at trial: claimant and Dr. Jolanta Gurdek,
Cohen’s treating psychiatrist during the relevant period, September and
October of 2004. Dr. Gurdek testified that the diagnosis for Mr. Cohen was
bipolar disorder with borderline personality disorder. The psychiatrist agreed
that claimant had what, in lay terms, would be known as “anger management
At the time, Cohen was taking four medications for his mental condition; in
addition, he was on medications to control his blood pressure, cholesterol and
thyroid. Dr. Gurdek testified, without challenge, that blood screening was
medically appropriate. According to Gurdek, as of October 13, no screening had
been done since Mr. Cohen’s admission to Kingsboro on September 10.
On Friday, October 8, 2004, Dr. Mark Lerman,
the clinical director of the Kingsboro Psychiatric Center, drafted a letter to
Cohen, which in relevant part provided as follows:
It has come to my attention that regrettably you have objected to the procedure
of phlebotomy to obtain blood to monitor your health . . . [Y]ou need periodic
blood monitoring to help promote your health . . . Your doctors and I wish to
encourage your voluntary cooperation . . . I therefore, strongly recommend you
submitting to your doctor’s recommendation of phlebotomy.
(Cl exh 2).
Dr. Lerman’s letter advised that Cohen should “discuss fully your
thoughts” on the issue with Dr. Gurdek and Dr.
It went on discuss the process if
Cohen refused to consent:
You may appeal our decision to obtain blood work from you to the Director of
this institution, Mr. Dean Weinstock. Please communicate your decision to Dr.
Gurdek as soon as possible. If you are dissatisfied with Mr. Weinstock’s
[ruling], you [may] appeal his decision to the Commissioner of OMH.
Five individuals were copied on the letter including Dr. Gurdek, Dean Weinstock
and Mental Hygiene Legal Services (MHLS).
Dr. Lerman’s letter clearly acknowledged claimant’s opposition to
having his blood drawn, but Dr. Gurdek testified that she did not “execute
the letter because the patient promised me to have it done willingly on Tuesday
morning [October 12].” Cohen, by this time, had written a note indicating
his opposition and slipped it under the office door of Dr. Gurdek, who initialed
it as having been received at 8:30 a.m. (on 10/12/2004). Claimant had not yet
seen Dr. Lerman’s letter - - Dr. Gurdek stated that claimant’s note
was not in response to it (she had waited to deliver Lerman’s letter).
Cohen’s note read as follows:
I have decided not to have my blood drawn. Please, do not confront me!
I am in bad shape. I may lose control of myself if you fight with me! Jake
(Cl exh 1).
Later that day (Gurdek’s notation was 2:06 p.m.), the psychiatrist
received another note from Cohen who had by now received Dr. Lerman’s
letter: he had written on the back of it, and declared, “The Answer is
NO!!! I will resist!! I have jail experience! Jake” (cl exh 2).
Dr. Gurdek credibly testified that she had multiple conversations with Dr.
Lerman’s office and multiple conversations or “attempts to converse
with Mr. Cohen and convince him of compliance with the blood drawing, [and]
another conversation on the day of the blood drawing . . .” Moreover, Dr.
Gurdek further recalled, and again credibly so, meeting twice with Bruce Harris
of Mental Hygiene Legal Services, once after receipt of the first letter and
then sometime in the afternoon (it was unclear whether this was before or after
receipt of Cohen’s second letter).
Dr. Gurdek said she spoke to Mr. Harris about claimant’s refusals, and
Harris said he had spoken to Cohen. Gurdek acknowledged Cohen’s right to
appeal from the decision to have his blood drawn, adding in her testimony that
whenever there is an issue with regard to drawing blood against a
patient’s wishes, Kingsboro Psychiatric contacts MHLS.
The Events of October 13
Cohen was watching television in the day room on Ward 11 with 15 or 20 other
patients. An announcement was broadcast that assistance was needed in the ward.
Dr. Gurdek was in the chart room, heard the announcement, and could see claimant
through the window in the wall between the two rooms. As Gurdek recalled, staff
had come in slowly; the patients had begun to leave when they heard the
announcement, but not every patient left, and those remaining were asked to do
so. Dr. Gurdek stated that a member of the response team had a good rapport
with Cohen and tried to talk to claimant and persuade him to comply with the
Eventually, about ten safety officers and mental hygiene therapy aides (MHTAs)
responded to the call and had come into the room. By this time, Dr. Gurdek was
there as well, and recalled that Cohen, “was standing up with his hands
on his sides, with the fists clenched, and he was saying, ‘I’m going
to fight. I’m going to kill someone . . . I’m going to
resist.’ ” Cohen, on the stand, denied ever raising or clenching
Things, as Dr. Gurdek remarked, were moving quickly. Gurdek testified that
there were, “at least, two safety officers, I think, just next to Mr.
Cohen and, probably, one MHTA trying to contain him because he was physically
attacking her and resisting people who were around him.”
Dr. Gurdek softened her initial testimony as to whether she had seen Cohen
“taking swings,” but maintained that, “he was in a position of
attacking them.” In any event, the witness saw a struggle and at some
point, “I just saw him on the . . . ground.”
For his part, claimant recalls being in the day room with other patients that
morning, from where he could see Dr. Gurdek in the chart room. Dr. Peterman
approached him, and, according to claimant, said, “we can either do this
the easy way or . . . the hard way.” Cohen testified he responded as
So I told him that my request to go before Judge Catrona is reasonable,
it’s a very good compromise, but if you’re not going to go through
the proper channels and grant my appeal, I’m not going to have my blood
drawn. I refuse.
Cohen said he continued watching TV, noticed Dr. Peterman walk into the chart
room, and that then Dr. Gurdek picked up the phone. After about a minute,
recalled claimant, he heard “Code” being called: “attention
all staff, attention all staff, Ward 11 is requesting your assistance, Ward 11
is requesting your assistance.”
Cohen recalled that at first, three safety officers showed up at one time and
then 10 or 15 more, or a total of 10 or 15, claimant was unsure. Claimant said
he was standing with his arms at his sides, that two employees approached him
quickly, each grabbing an arm and “the rest of them knocked me down to the
floor.” Cohen later complained of pain in his left ankle, and x-rays
taken the next day showed a fracture of the fibula. (Cl exh 4, October 14, 2004
Preliminarily, the facts here did not constitute an emergency, as occurred the
time when Mr. Cohen was found to be striking his head against the wall, and Dr.
Gurdek quickly administered medication to calm Cohen for his immediate safety.
As the psychiatrist testified: “When there is an imminent danger to the
staff or to the patient, I have to make the decision on my own, and if I need to
medicate the patient, I can do it without administrative decision.”
With that said, every individual, including one under involuntary commitment to
a psychiatric hospital, has the fundamental “right to determine what shall
be done with his own body . . . and to control the course of his medical
treatment.” Rivers v Katz, 67 NY2d 485, 492, 504 NYS2d 74, 78
(1986) (citations and interior quotation marks omitted). It was undisputed that
the drawing of Cohen’s blood was an invasive procedure, with respect to
which the patient had the right to be involved in the decision-making
At the time Rivers was decided, there was an existing Regulation of the
Commissioner of the Department of Mental Hygiene entitled, “Care and
treatment; right to object and appeal” (14 NYCRR §27.8), which was in
large part quoted in footnote 2 of the Rivers decision.
Rivers v Katz
involved the administration of antipsychotic drugs, described by the Court of
Appeals as having potentially serious side effects (67 NY2d at 490, 504 NYS2d at
, a new set of regulations was promulgated, Part 527,
“Rights of Patients.”
§527.8, which is entitled, “Care and treatment; right to
object,”established a procedure containing the due process safeguards that
the Court of Appeals found lacking in Rivers
. Such includes judicial
authorization following a determination of whether the patient is capable of
giving reasoned consent to a proposed medical procedure. However, subdivision
(7) of paragraph (a) specifically excludes “routine blood work”
from the ambit of §527.8.
The pre-existing regulation, §27.8, remains in
and covers routine blood testing. It
that patients held on an involuntary
status may be given treatment over their objection only if there is compliance
with the procedures set forth therein. Initially, under subdivision (c) of
§27.8, if the patient objects to the planned treatment, the
facility’s head of service must undertake a review, and the resulting
decision communicated to the patient (and his representative, if he or she has
one), as well as to MHLS. This was Dr. Lerman’s letter of October 8.
The proposed treatment may then be undertaken unless the patient (or his
representative) decides to appeal to the facility director, which at Kingsboro
is Dean Weinstock (id.). Appeals are governed by subdivision (e);
paragraphs (1) and (3) of §27.8(e) provide as follows:
(1) If the patient or a representative of the patient has appealed to the
facility director from a decision of the head of the service with respect to an
objection to treatment, the director shall consider the appeal and make a
decision. The decision of the director shall be communicated to the patient and
the patient’s representative, if any, and to the Mental Health Information
* * *
(3) In cases of facilities operated by the Office of Mental Health [OMH], the
patient may appeal from any such decision of the director to the commissioner or
his or her designee. Such request for review must be filed with the director
within five days, excluding Saturdays, Sundays and holidays, after notification
of the director’s decision. The director of the facility shall forthwith
transmit the request to the commissioner or his or her designee. When the
commissioner or his or her designee decides the issue, the patient, the
patient’s representative, and the director of the Mental Hygiene Legal
Service shall be notified of the decision. 
Dr. Lerman’s letter stated that Cohen had the right to appeal to the
facility and that he should communicate his decision [to Dr. Gurdek] “as
soon as possible.” There is no time frame specified in paragraph (c), but
the appeal under paragraph (e), from the director’s decision to the
Commissioner, is apparently intended to move on an expedited basis. As set out
above, a request to the Commissioner to review a director’s decision must
be made within five days, excluding weekends and holidays, and be
“forthwith” transmitted to the Commissioner’s Office.
Defendant does not argue that the time for an appeal to Director Weinstock is
less than five days. As Dr. Gurdek commented, “ [T]he MHLS has to have
time to talk to the patient, and if they choose to go with that appeal in
writing or verbally appeal the situation, you have to give them some
In the view of this trier of fact, relying upon Dr. Gurdek’s testimony,
Dr. Lerman’s letter was not delivered to the patient until Tuesday,
October 12, and Cohen’s blood was forcibly taken from him the next day.
There was no probative evidence that Cohen had indicated in writing, or orally,
that he decided not to appeal to Director Weinstock. In fact, his refusal or
objections, while not formal, were unmistakable and unequivocal. That claimant
objected to the blood work was not seriously called into question by
We never heard directly from MHLS’ Harris. Dr. Gurdek testified she
spoke with him twice, and had he advised Cohen to relent, such was never
received into evidence. The language of subdivision (a) of §27.8 suggests
that objecting and appealing may be distinct actions: “Patients may
object to any form of care and treatment and may appeal decisions with which
they disagree.” Dr. Gurdek testified that she did not consider
Cohen’s first note to be an appeal: “No, it was a written statement
about [the] possibility of fighting people. And I had a conversation with his
MHLS indicating that they can appeal the situation.” Even assuming that
claimant’s two notes represented objections only, there was no indication
that he had decided to forego an appeal.
Cohen mentions a second MHLS lawyer that he recalls speaking to, a Michael
Nevel. Explaining his conversations with Messrs. Harris and Nevel, claimant is
understandably confused about when a court order may be required for an
involuntary OMH patient who refuses medical treatment. Judicial intervention is
part of §527.8, not of §27.8. But the totality of what we have from
Cohen - - his notes, his testimony, and Dr. Gurdek’s recollections of
conversation with claimant - - indicates that he did not consent to the
procedure and wanted to resist to the maximum extent as he understood his
A patient in these circumstances who is subject to a proposed invasive
procedure is entitled, unless he clearly indicates his consent, to an evaluative
decision (presumably reduced to writing) at three levels: by the head of
service, the facility director, and the Commissioner of the Office of Mental
Health. In our case, the decision on the non-consenting Mr. Cohen did not make
it beyond the first level.
Defendant failed to follow the rules and regulations governing the Office of
Mental Health, a failure of its duty toward the patient-claimant. This failure
was negligent: defendant’s conduct was unreasonable in proportion to the
risk of injury; no cost or burden of any consequence - - operational or medical
- - was shown that would have been implicated had the procedures set by State
regulation been utilized.
Granted, it was possible that had each procedural step been followed, Mr. Cohen
would still have been unwilling to allow his blood to be drawn, and would have
been ultimately forced to do so. In any event, by failing to let the process
run its course, defendant appreciably increased the chance that a physical
imposition would be required with its attendant dangers.
Failure to abide by the official promulgated regulations of the State of New
York is not, by itself, actionable (see PJI 2:29). What transpired - - a
struggle resulting in injury - - was reasonably foreseeable. Dr. Gurdek
testified that she made sure her view of the “proceeding” was not
blocked, “[b]ecause I wanted to make sure that everything is okay with
them and . . . that no one is going to get injured,” significantly
adding, “[f]rom our experience . . . when we are dealing with medicating
patients against their will, or taking blood, sometimes things can go wrong and
some people can be injured.” In that regard, the Code Call did not summon
one or two employees, but closer to a dozen safety officers and therapy aides -
- once this stage was reached, a substantial escalation had occurred, and
defendant knew it.
It is thus unnecessary to determine whether excessive force was used, or
whether defendant’s employees varied from the proper procedures in their
use of physical restraint. See, for example, Patrick v State of New
, 11 Misc 3d 296, 806 NYS2d 849 (Ct Cl 2005); and Santana v State of
, Ct Cl, September 22, 2006 (unreported, Claim No. 107304, Marin,
J., UID #2006-016-062
In view of the foregoing, I find that when Jacob Cohen was physically forced to
give blood on October 13, 2004, such constituted negligence on the part of the
State of New York, which was the proximate cause of any injury suffered at such
time by Mr. Cohen, for which defendant is fully liable. The Clerk of the Court
is directed to enter interlocutory judgment accordingly in favor of the
claimant. The parties will be contacted to schedule a trial on damages.
September 5, 2007
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
. The ninth unnumbered page of
claimant’s exhibit 4, which are the notes of psychiatrist Dr. K
. The doctor’s last name is spelled in
the trial transcript as “Lairman.”
. Dr. Peterman’s full name is not
referenced in the transcript or medical records in evidence (cl exhs 1-4).
. Part 527 covers the Office of Mental Health
(OMH). The State Department of Mental Hygiene is comprised of OMH, the Office
of Mental Retardation and Developmental Disabilities, and the Office of
Alcoholism and Substance Abuse.
. See Matter of Adam S.
, 285 AD2d 175,
729 NYS2d 734 (2d Dept 2001). Note that §527.8(c)(5) references
§27.9; subdivision (f) of §27.9 provides that patients who object to
the surgery and other treatments covered by §29.9 have recourse to the
procedures governing objection and appeal in §27.8.
. Specifically, §27.8(b)(3)(i).
. Paragraph (2) of subdivision (e) is not
directly applicable, but is illustrative of the scope of the procedural
protections in place: “A patient shall also have the right to appeal to
the director any decision to which he objects relating to his care and treatment
at the facility.”
. This and other decisions of the Court of
Claims may be found on the Court’s website: