This is a timely filed claim for damages by Steven Rasmussen and Theodore W.
Tierney, III (hereinafter "claimants")
upon the alleged negligence of the defendant, the State of New York
. Claimants are police officers employed by the Suffolk County Police
Department who were working a 4:00 p.m. to midnight tour of duty on July 7,
2003, when, Rasmussen testified, he got a call at approximately 6:30 p.m. about
a voluntary psychiatric commitment in Huntington Village. Tierney arrived on
the scene to assist in the transport of the individual (hereinafter “2nd
precinct patient”) to SUNY Stony Brook Hospital. After putting the 2nd
precinct patient in Rasmussen’s vehicle, Tierney secured his vehicle and
then sat in the back of Rasmussen’s vehicle with the patient who was taken
to SUNY Stony Brook Hospital at approximately 6:50 p.m. (see Exhibit 6).
The 2nd precinct patient was then taken to the
emergency room which is adjacent to the
main emergency room and was calm both during his transport and while waiting in
the emergency room. Upon arrival Tierney watched the patient while Rasmussen
completed paperwork. Rasmussen testified that he had brought patients to CPEP
about 100 times and that the wait time ranged from ten minutes to one and a half
hours. In this instance, the 2nd precinct patient was seen by the triage nurse
about ten minutes after arrival and was then brought to the waiting room and
handcuffed behind his back. Rasmussen stated that police procedure has officers
standing outside of the waiting room with the door open and that officers are
not discharged until a patient is brought back into the CPEP unit by a staff
member and a police officer.
Thereafter, their patient stayed calmly in the waiting room alone for
approximately an hour and fifteen minutes. When officers of the 4th precinct
brought in a combative patient (hereinafter “4th precinct patient”),
that patient was disheveled and had blood on the front of his shirt. Rasmussen
described the 4th precinct patient as about 6' 6" tall and very strong. He
stated that the transporting officers were having difficulty with him. The 4th
precinct patient, also handcuffed behind his back, was placed two seats away
from claimants’ 2nd precinct patient. Rasmussen observed one of the
officers go to the security booth to get the police escort form while the other
officer waited outside the waiting room with claimants.
Since the 4th precinct patient was yelling that he wanted to kill the officers,
Tierney went to the nurse’s station to request that the hospital move one
of the patients because it could turn violent in the waiting room. Rasmussen
said the officer’s pleas were ignored. All four officers then were still
outside the waiting room when the 4th precinct patient got up and attempted to
leave. One of the 4th precinct officers had to push his patient back into the
room and place him back in his seat. The 2nd precinct patient then also
started to get agitated and wanted to know why he was not getting help.
Rasmussen testified that there was no way to bring either of the patients into
the general waiting room because it would be against police procedure.
He also observed the 4th precinct patient, while his hands were handcuffed
behind his back, maneuver his legs between his arms and hands, and bring his
hands from the back to the front. Rasmussen stated that this occurred in less
than a second, creating an extremely hazardous condition because metal handcuffs
can be used as a weapon against either another patient or officers. A passing
CPEP staff member was approached by Rasmussen and asked to remove the 2nd
precinct patient, but the request was ignored.
The officers subsequently formulated a plan to enter the room and regain
control of the 4th precinct patient by uncuffing one of the patient’s
hands and then recuffing it behind his back. When the officers entered the
room one of the 4th precinct officers got hit in the face and their patient
attempted to kick Tierney in his face, which Tierney blocked with his hand.
Rasmussen then approached the 4th precinct patient from the front and landed on
his knees and his arms.
All of the officers subsequently tried to subdue the 4th precinct patient, but
Rasmussen said the struggle took a long time and hospital staff had to join in
the fray. However, the 4th precinct patient was finally uncuffed and his hands
recuffed behind his back, and after being subdued, the patient was placed on a
gurney, restrained and medicated. The entire fight lasted about seven to eight
minutes, which was approximately ten to twenty minutes from the time the 4th
precinct patient first entered the police escort waiting room.
During the struggle with the 4th precinct patient, the handcuffed 2nd precinct
patient began to struggle as well, standing up and kicking at the officers.
Another group of hospital staff were required to help subdue the 2nd precinct
patient who, after the fight, was taken into the CPEP unit.
Rasmussen stated that as a trained police officer if he were confronted by a
situation where two volatile people were in close proximity to each other, he
would have removed one of the subjects from the area to defuse the situation.
On cross-examination, he testified that he had received training on dealing with
emotionally disturbed people that were combative and peaceful as well as
receiving training on escorting and restraining patients.
Rasmussen also stated that the 4th precinct officers told him that their
patient had been violent with them before coming to the hospital and they had to
fight with him to subdue him earlier in the evening. All four officers
monitored the patients in the police escort waiting room and saw the 4th
precinct patient slip his hands to the front under his legs. Rasmussen
reiterated that he had never seen this done before.
Rasmussen admitted on cross-examination that he had no idea what the status of
CPEP was in regard to patients or staff at the time of his arrival or during the
time he was there. Normally, one police officer escorts the patient into the
unit with CPEP staff through two locked doors. However, Rasmussen stated that
he considers the patient to be in CPEP’s care once he gets through the
first locked door because at that point the handcuffs are removed and the
patient’s personal effects are taken between the two locked doors.
In response to the Court’s question, Rasmussen stated that his sector car
was parked outside the entrance to the emergency room. Rasmussen stated that it
is not police procedure to bring patients back to police vehicles once they have
been brought into the emergency room.
Tierney’s direct examination supported Rasmussen’s testimony on the
escort of the 2nd precinct patient to CPEP. Tierney stated he waited in the
doorway of the police waiting room, observing the 2nd precinct patient while
Rasmussen went to the nurse to fill out paperwork, and that the emergency room
was very quiet. He did not observe any other “psych” patients or
police officers at this time. The triage nurse came into the escort room within
a few minutes of their arrival. Until the 4th precinct patient came into the
escort room about an hour later, no other hospital personnel came into the
When the 4th precinct patient was physically escorted into the waiting room,
Tierney said he was “extraordinarily violent” and covered in blood.
He testified that it was obvious to him that the 4th precinct patient was known
in the hospital as a “dangerous subject”. Tierney stated that he
heard nurses referring to the 4th precinct patient by name.
According to Tierney, although the 2nd precinct patient had been docile up to
this point, he seemed concerned at having the violent 4th precinct patient near
him. Tierney said he went to the nurse’s station and explained the
volatile nature of the situation to the nurse and requested that one of the two
patients be immediately removed to the locked confines of the CPEP unit.
Upon returning to the police waiting room, Tierney observed the 4th precinct
patient step through his arms so that his handcuffs were in front of him. At
this point, he and the other officers devised the “game plan” to
enter the waiting room and control the 4th precinct patient. Tierney did not
recall anyone else talking to the nurses or staff about the problem of having
the two patients together. Tierney described the altercation between the
officers and the patients similarly to Rasmussen.
Tierney stated that it was about an hour and fifteen minutes from the time they
brought in the 2nd precinct patient until the altercation. After the
altercation, Tierney was not sure as to what happened to the 2nd precinct
Tierney stated on direct that he made two requests to have his patient moved
into CPEP and that Rasmussen made one request. Tierney testified that he did
not take the 2nd precinct patient out of the room because it would have been
against procedure. He also testified that his training states that the most
important thing when dealing with multiple patients is to segregate them.
On cross-examination, Tierney stated that he has brought patients to Stony
Brook dozens of times, recalling that there had been times when multiple
patients were waiting in the room. Tierney said that the waiting time would
vary depending on the activity in CPEP. He testified that he never made the
transfer of a patient in CPEP, he was always the outside officer while the other
officer made the transfer.
Claimants called Linda Winter-Laender (hereinafter “Winter”). At
the time of the incident, she was an administrator and social worker in CPEP.
According to her, CPEP coordinates psychiatric emergencies in Suffolk
Her role was to attend meetings
within the community and explain CPEP’s role. Winter also did patient
assessments as part of a treatment team - a nurse, social worker, a resident
training in psychiatry and an attending physician. The team discusses the
information gathered and then decides on a course of treatment, either releasing
or admitting a patient to the hospital for psychiatric reasons. The patient is
interviewed by each member of the team in the CPEP unit, not in the waiting
Winter testified that she was familiar with police transport and procedure to
the CPEP unit. Police enter the ER room, take a police escort form and fill it
out. The patient is then brought to the police waiting room, placed inside and
the officers wait outside the room. Most adult patients are handcuffed when
they enter the hospital. The decision to handcuff the patients and to keep them
handcuffed in the police waiting room are “police determinations”.
She described the police waiting room as an odd shaped room with six to eight
chairs bolted to the floor. The room has no windows, televisions or reading
materials. Police officers stand or sit just outside the police waiting room
when there are patients in it. The door to the police waiting room is open when
patients are inside, but it is closed if no one is inside. Patients are triaged
in the police waiting room. After triage, the nurse takes the form to the
registration nurse. When the triage nurse returns to the triage area CPEP is
then called. There are no rules and regulations for the amount of time for
triage to take place or for a patient to be taken in to the CPEP unit.
The CPEP unit’s physical layout is small according to Winter
(approximately half the size of the
). There is an attending physician
and a resident in the unit 24 hours a day, 7 days a week, with as many as four
nurses working on a shift. There are two patient rooms which can accommodate
two patients for up to 72 hours in accordance with New York State
The amount of patients in the unit is
determined by the attending physician on the shift, but there is no set number.
A “diversion” will be called when CPEP has reached the maximum
number of patients it can handle in a given situation, and few, if any, will be
leaving within a reasonable time to allow CPEP to accept more patients. The
police department is notified by the hospital that each of the precincts or
departments that has a hospital with a psychiatric department within its borders
has patients taken to that hospital. There are no rules and regulations for
when a diversion should be instituted. But, based on the witness’
experience, a diversion is usually called when the patients number somewhere
from 14 to 17.
Winter testified that there are no rules and regulations as to the segregation
of precinct patients when there is more than one patient in the police waiting
room. Depending on a situation in the police waiting room, staff might come
out. Winter stated that people have yelled in the waiting room but not gone
beyond that so that no staff intervention was required. The staff tries to get
patients into CPEP as soon as possible, especially patients that are physically
agitated. If a person becomes “violent or out of control” in the
police waiting room then, according to Winter, the police and security staff
would be the first responders since they are located just outside the waiting
room. Patients can either be brought in calmly or strapped down on a stretcher.
The response of the CPEP staff would depend upon an assessment of the situation
as well as what is going on inside the CPEP unit at that time. If a situation
gets completely out of control then a “code M” is called. The
“M” stands for “manpower”, an indication that extra
manpower is needed immediately. Usually extra emergency medical staff, as well
as security then respond to CPEP. The security staff are unarmed and are not
police staff. They carry no handcuffs or weapons of any type.
A patient is brought into the CPEP unit by a therapy aide and usually one of
the officers. The other officer stays outside and holds the first
officer’s weapon. If both officers are needed to accompany the patient
into CPEP then their weapons are secured and both officers accompany the
patient. The patient has handcuffs removed after he is taken into the unit.
The officer reports to a nurse and gives information about the patient and then
According to claimants’ Exhibit 2, there were approximately ten patients
in CPEP at the time claimants arrived with the 2nd precinct patient. The
witness was unable to state how many patients were actually in the unit without
having the prior day’s log. Patients from the prior day may have still
been in the unit on July 7, 2003.
Winter acknowledged on direct examination that it is CPEP’s policy
(claimants’ Exhibit 4) to give patients accompanied by police the highest
priority for entry into the unit. The reason for this is to be able to release
the officers as soon as possible. There is no set time for a patient with a
police escort to be seen and there is no specified time within which an agitated
patient must be brought into the CPEP unit. Winter testified that the
information on claimants’ Exhibit 7 and the complaints made to the nurse
about a patient’s agitation might or might not get someone to come out
from the CPEP unit to deal with the patient. The witness could not say that the
staff’s failure to respond was a departure from hospital procedure because
she could not recall what was taking place inside the unit at that time.
On cross-examination, Winter noted that the 4th precinct patient was brought
into the police waiting room at approximately 1950 hours (claimants’
Exhibit 7). The incident, according to claimants’ Exhibit 3, occurred at
1956 hours, and the 4th precinct patient was brought into the CPEP unit at 2000
hours (claimants’ Exhibit 2).
Winter testified on cross-examination that prior to CPEP a police officer would
wait for hours with psychiatric patients. The wait times in 2003 at CPEP could
range anywhere from half an hour to eight to nine hours for patients. A patient
is in the custody of the police officer until the second locked door is closed.
Claimants called Harold Levine (hereinafter “Levine”) as an expert
in hospital administration and as an authority in promulgating rules in
accordance with New York State rules and laws. From 1992 to 2002, Levine was
the hospital administrator of Brunswick Hospital in Amityville, New York.
During his tenure at Brunswick, the hospital was one of the receiving hospitals
for psychiatric patients when Stony Brook called a diversion in its CPEP unit.
Levine opined that the altercation could have been avoided if the two patients
had been segregated from each other. According to Levine, once a patient comes
into a hospital and has been triaged, the patient is the responsibility of the
hospital. It was the responsibility of the hospital staff to segregate the
patients. Levine opined that if three requests were ignored to deal with an
agitated patient the staff did not provide adequate care for the agitated
patient. The expert further opined that defendant’s inaction as to both
precinct patients led to the claimants’ injuries.
On cross-examination, Levine stated that any amount of time to wait with a
volatile patient, that is known to the staff, is too long. Levine acknowledged
that there are no rules or regulations as to the space of the waiting area for
patients who go into CPEP.
Claimants argue defendant departed from its own rules and regulations by not
taking one of the two psychiatric patients into the secure CPEP facility on July
7, 2003. It is claimants’ argument that the patients were not seen
quickly enough given the agitated and volatile condition of the 4th precinct
patient. According to claimants’ Exhibit 7, the 4th precinct patient
arrived at 1950 hours. Claimants’ Exhibit 3 indicates the incident
occurred at 1956 hours. Claimants’ Exhibit 2 shows that both psychiatric
patients were admitted into CPEP at 2000 hours. Rasmussen indicated that the
officers took approximately five minutes to devise a plan when the 4th precinct
patient moved his handcuffed hands in front of himself. Tierney puts the time
for planning at about two minutes. This indicates to the Court that the 4th
precinct patient became a problem between one and four minutes after arrival
Claimants have failed to prove their case for a number of reasons. First, the
times indicated by claimants’ exhibits, both patients were admitted into
the CPEP unit within minutes of the arrival of the 4th precinct patient.
In the ownership of property, the State of New York serves two functions. The
first role casts the State in a proprietary function and the other role is that
of a governmental function (Miller v State of New York, 62 NY2d 506).
The functions are not mutually exclusive. Instead, the functions are opposite
ends of a continuum (id. Miller).
As to the State’s governmental function, the State "remains immune from
negligence claims arising out of governmental functions such as police
protection unless a special relationship with a person creates a specific duty
to protect, and that person relies on performance of that duty" (Price v New
York City Hous. Auth., 92 NY2d 553, 557 - 558).
Claimants’ argument is that defendant was negligent in not segregating
the patients or admitting them into CPEP quickly enough. Clearly, the running
and administration of the CPEP unit would have to be defined as a governmental
function. Claimants have failed to show any special relationship owed by
defendant to them. Claimants have also failed to prove that defendant failed to
protect them or that such a duty existed. Rasmussen and Winter both testified
that a patient is in the care and custody of the police until he is taken into
the CPEP unit. While a volatile situation did exist in the police waiting room,
it was incumbent upon the police officers present to control their patients
until such time that they were transferred to CPEP. Thus, defendant’s
decisions as to the CPEP unit are immune.
Second, claimants failed to show any departures from their own standards. The
rules of the CPEP unit indicate that patients brought in by police escorts
should be given the highest priority. There is no indication that these
patients were not given a high priority (the 4th precinct patient was in the
CPEP unit within ten minutes of his arrival). Both officers and Winter
indicated that wait times of one hour or more were not unusual. Winter
testified that there was no set time limit for taking any patient into CPEP.
The wait time, according to Winter, depended upon the circumstances within the
unit at the time. The other rule brought to the Court’s attention was for
diversion of the patients. However, there was no indication in the record that
a diversion was necessary. Even in the event a diversion was necessary, it
would not have involved the 2nd and 4th precinct patients, as they were already
in the police waiting room. Winter testified that once a patient arrives, he or
she is not sent away.
Lastly, the Court finds that the treatment of a patient by a medical facility
is a medical judgment. A patient is initially evaluated through triage to
determine his/her priority for treatment. The speed with which to see that
patient balanced against the treatment of the patients already in CPEP is based
upon an exercise of medical judgment.
The law will hold a defendant liable for medical malpractice if it fails to
exercise reasonable care and diligence in the treatment of a patient (Snow v
State of New York, 98 AD2d 442, aff’d 64 NY2d 745). Expert
testimony is normally required to establish a prima facie case in a
medical malpractice action (Tleige v Troy Pediatrics, 237 AD2d 772).
Claimants’ failure to present any expert testimony to show harm or a
departure from good and accepted medical standard results in their inability to
prove a prima facie case.
Based upon all of the foregoing, the Court finds in favor of defendant and
dismisses the claims of Steven Rasmussen and Theodore W. Tierney, III, filed
under Claim Nos. 109574 and 109575, respectively. All motions not specifically
ruled upon are denied.
Let judgments be entered accordingly.