New York State Court of Claims

New York State Court of Claims

FITZPATRICK v. STATE OF NEW YORK, #2007-018-576, Claim No. 103293


Claimant has established a battery was committed in the course of his care at CNYPC on October 29, 1999.

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):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 3, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages from the State for assault and battery. Claimant testified that on October 29, 1999, he was an inmate/patient on a voluntary admission to the Central New York Psychiatric Center (hereinafter CNYPC), a State mental health facility for inmates. On that date, when it came time for the ward residents to go to the dining area for lunch, the staff discovered that a “patient pen” which was used by the patients and had to be signed out at the staff desk was missing. Claimant described the pen as a felt-tip marker and testified that although he had not signed out the pen, he saw someone from the recreational staff using the marker during a card game earlier that morning. Claimant testified he gave the staff this information, specifically, Senior Treatment Assistant Keith Richardson and another female employee. Nonetheless, a strip search of the ward patients was ordered. Claimant voiced his objection to being strip searched to Mr. Richardson and others and was placed in an adjoining “time out”[1] or side room. Claimant told the ward staff that if they checked with the recreation staff and they didn’t have the pen, then he would consent to the search. He didn’t believe the recreation staff was ever consulted, although admittedly, he was not in the constant presence of the staff.

After searching the other residents, Claimant testified that a ward staff member, Steve Babula, threatened Claimant that he would be strip frisked including a “digital rectal exam.” Claimant became very upset and “blatantly objected” to such a search and examination and asked to see the doctor who ordered this search. Claimant told Mr. Babula that he would not submit to a digital rectal exam. While waiting to see the doctor, Claimant testified several employees came over to him and threw him on the floor, wrapped his neck up in a towel and wrapped him in a canvas blanket, struggling. Ultimately he was lifted and his hands and feet were strapped to a bed in a four-point restraint. A net was thrown over his face because he was spitting while he was yelling. Claimant got the net off his face in the struggle, and Security Housing Treatment Assistant (SHTA) Mike Balboa came in to put the net back on and punched Claimant in the eye as he was placing it back on. Another strap was placed over Claimant’s chest amounting to a five-point restraint. Claimant admitted he was yelling. Later on, Claimant was injected by Nurse Ruth Gilbert with Halidol, Ativan, and Benadryl. At some point, Claimant was strip searched and the pen was never found.[2]

Claimant testified he was awakened from the induced sleep, removed from restraints, and returned to the day treatment room. The remainder of that day, Claimant felt nauseous and dizzy. The next day he sought medical treatment for an eye injury and upper body bruises. The following day, SHTA Domenica Barusso took photos of Claimant’s injuries, although Claimant alleges the photos were lost. John Shaw, a Risk Management Specialist, investigated this incident and took photos but refused to give Claimant copies at that time although copies were provided during discovery. Claimant was discharged from CNYPC on November 2, 1999, and returned to Wende Correctional Facility. Claimant testified that as a result of this incident his right eye was blackened and swollen shut, there was a lump on his forehead, he suffered headaches, bruises on his upper torso, a sore throat, nausea and dizziness, heightened anxiety, depression, and an increase in suicidal ideation, loss of sleep, fear and humiliation.

Claimant submitted exhibits 1 - 12 over objection of Defendant and the Court admitted the exhibits to the extent they were admissions. Claimant’s exhibits 1, 3, 4, 6, 7, 8 and 9 are included as part of Defendant’s Exhibit A, as certified records of CNYPC.

Defendant called as its only witness, Steven Babula, a CNYPC SHTA, who had worked for 15 years at CNYPC at the time of this incident. Mr. Babula, according to Claimant, was involved in this incident; however, Mr. Babula had no independent recollection of this matter.

Mr. Babula testified that the staff of CNYPC undergoes one month of initial training as well as annual follow-ups on how to care for patients, including how to control a patient who is acting out from hurting himself or herself and others. According to Mr. Babula, initially the staff would use verbal direction to attempt to calm the patient. If that doesn’t work the patient is isolated. Only if these means fail, is physical restraint used. The least restrictive means is sought. Medication is “offered” on doctor’s orders.

Mr. Babula testified that there are three felt-tip pens assigned to the day room which may be signed out by the patients. Although the pens are felt-tipped, Mr. Babula testified that the pens have been used in the past as stabbing weapons; the ends can be sharpened and the pens can also be used to jam locks on the ward. As a result, when a pen is found missing, a search to locate it is conducted - first of the day room and then patients. Mr. Babula testified, in opposition to Claimant, that a strip search includes a search of bodily cavities such as the mouth and rectum. Some patients do object to a strip search, in which case, the patient would be counseled as to the need for the search and if the objection continued, the patient would be isolated in a room while the search continued. If the lost item was not located elsewhere and the patient continued to object to the strip search, other staff and medical personnel would be employed to talk to the patient. Medication would be offered, and if the objection continued, restraint would be used. A blanket can be used in the first instance as a protective device for the patient and staff and for control. The patient is wrapped in the blanket by three staff members and brought down to the floor. A spit mask is only used when a patient is spitting or biting. A “red dot,” according to Mr. Babula, is an emergency situation where staff requires additional help.

Exhibit A is a copy of the investigative report of Risk Management Specialist, John Shaw.[3] Mr. Shaw investigated Claimant’s allegations of physical abuse, specifically that a staff member hit him in the eye with his fist. No investigation was done into the administration of drugs.

The use of force in the institutional setting is permitted where Claimant is lawfully in custody, and no excessive force or physical contact is used, other than reasonably necessary, to maintain control and custody of Claimant under the circumstances (2 NY PJI 2d 3:4, at 22 [2007]).

Here, Claimant was the only witness who testified regarding what transpired on October 29, 1999. It is clear from his testimony and the exhibits in evidence that a strip search of the patients on the ward was ordered to locate a missing pen. Claimant objected to the search. The staff of the ward attempted to mitigate the situation by placing Claimant in a separate room while the search of the ward and other patients continued. When the pen was still not located, the staff returned to Claimant to complete the search. Claimant maintained his position in objecting to the search. There is a dispute between Claimant’s version of what then transpired and the portion of the documentary evidence that can be deciphered. Claimant indicates that he requested to speak with the doctor who ordered the rectal examination and while awaiting the doctor’s arrival, staff came in and restrained him in a blanket. The documentary evidence provides, as best the Court can make out, Claimant made threatening remarks and racial slurs to the staff. No description of what remarks were made is provided. No one, other than Claimant, who was present at that time, testified. The nursing restraint/seclusion progress note (Exhibit A) indicates a “Red Dot” was called. Claimant was restrained from 12:25 p.m. until 16:25 p.m. (4:25 p.m.)(Exhibit A). The documentation from, specifically, the nurse and the doctor (Progress Notes, Exhibit A) reflects Claimant was physically assaultive. There is no indication whether this was before or after the restraint began. The notation, in the progress notes at 12 makes no reference to physical threats. Defendant’s position on the sequence of events, or specifically what transpired, is unclear. Having observed Claimant testify, the Court accepts his version of the facts.

It is unquestioned that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.” (Schloendorff v Society of N.Y. Hosp., 211 NY125, 129). Yet, these rights must yield to the interests of the State in protecting patients, the public and staff of its mental health facilities from the dangerous behavior of those who are mentally ill (Matter of K.L., 1 NY3d 362, 370).

Pursuant to § 33.04(a) of the Mental Hygiene Law, restraint is defined as use of an apparatus which prevents the free movement of both arms or both legs or which totally immobilizes the patient. The statute (Mental Hygiene Law § 33.04[b]) directs that restraint only be employed as necessary to prevent the patient from seriously injuring himself or others, and only if less restrictive techniques have been clinically determined to be inappropriate or insufficient to avoid injury. Restraint may not be employed as punishment, for the convenience of staff, or as a substitute for treatment programs. Restraint may only be employed by a physician’s written order after physical examination, unless an emergency situation exists (Mental Hygiene Law § 33.04[d]). In the statute, if an emergency situation exists where a “patient is engaging in activity that presents an immediate danger to himself or others and a physician is not immediately available, restraint may be effected only to the extent necessary to prevent the patient from injuring himself or others at the direction of the senior member of the staff who is present.” (Mental Hygiene Law § 33.04[e]). The patient must be must be kept under constant supervision pending the arrival of a physician (id.). While in restraint, a patient’s condition must be assessed at least every thirty minutes, and restraints must be removed every two hours, except when asleep (Mental Hygiene Law § 33.04[f]; see also 14 NYCRR § 27.7[c][1]-[4]).

There is not sufficient evidence before the Court to permit a finding that the restraint of Claimant was necessary to protect Claimant from himself or others from Claimant. The documentary evidence reflects only the conclusory statements of staff - the Claimant made threatening statements or racial slurs. The Court will not infer that the State, under these circumstances, acted in compliance with the statute and regulations where Claimant’s testimony reflects a different version of what transpired, and Claimant was the only witness who testified about that day’s events. Claimant’s Exhibit 5 notes that the restraint was not performed on an emergency basis.

The Court does find that once efforts were made to restrain Claimant, the situation escalated and Claimant actively resisted the restraint, yelling and fighting with the staff. During this time, Claimant was struck in the eye and injured. The notes from what appears to be[4] Georgia Elbern, RN Nurse II, dated December 8, 1999, indicate that on October 30, 1999, the day after this incident, she noticed a slight reddened area below Claimant’s right eye consistent with his testimony of this injury. The Incident Report (Exhibit A) reflects that Claimant had a small lump with redness on the left side of his forehead which is also consistent with Claimant’s testimony that he hit his head on the floor.

Forced medication, like restraint and seclusion, may be employed temporarily to obviate an imminent danger to a patient or others in the vicinity (Rivers v Katz, 67 NY2d 485, 496; Matter of K.L., 1 NY3d at 370). From the nursing Restraint/Seclusion Progress Note, 5 mg of Halidol, 2 mg of Ativan and 25 mg of Benadryl were given to Claimant at 12:35 p.m. Defendant has come forward with no proof to substantiate the need for forced medication. Most of the documentary evidence reflects Claimant was already in a five-point restraint[5] at the time the medication was administered calling into question the risk of imminent danger. If medication was necessary medically or protocol under these circumstances, no such evidence was submitted. Mr. Babula’s testimony was that “medication is offered” on doctor’s orders. Circumstances or procedures warranting forced injection were not elicited.

Accordingly, based upon the evidence, the Court is constrained to find that Claimant has established a battery was committed in the course of his care at CNYPC on October 29, 1999. Claimant suffered a bruised right eye, a lump on his forehead and headache as documented. Claimant’s other claims of injury were not adequately established or shown to be caused by the October 29, 1999 incident.

Claimant is awarded $2,000 for the battery, and it is hereby

ORDERED, that to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).

All motions not previously ruled upon are hereby DENIED.


August 3, 2007
Syracuse, New York

Judge of the Court of Claims

[1].All quotes are from trial recordings unless otherwise noted.
[2].Exhibit A.
[3].Claimant stipulated to the admission of the exhibit at trial but objected in his closing brief on the ground that it was not properly admitted as a business record. The Court finds the exhibit is properly admitted, independent of Claimant’s trial stipulation, despite it being hearsay, as a business record (Johnson v Lutz, 253 NY 124; Tennenbaum v Insurance Corp. of Ireland, 179 AD2d 589, 591). The Court has not considered the statement or the portion of Mr. Shaw’s report relying on the unnamed inmate/patient since that individual was under no business duty to report (Johnson, 253 NY at 126).
[4].The signature on the 17th page of Exhibit A is difficult to read. The notation is dated December 8, 1999 at 0915 hours.
[5].Exhibit A, Nursing Restraint/Seclusion Progress Note signed by what appears to be Ruth Gilbert (signature is unclear), is not consistent with doctor’s progress note (can’t read the signature) top entry on the second page of inpatient “Progress Notes” Exhibit A, which mentions that two SHTA got struck by Claimant which is not reflected elsewhere and does not mention any restraint before medication was given.