New York State Court of Claims

New York State Court of Claims

RASMUSSEN v. THE STATE OF NEW YORK, #2008-033-588, Claim No. 109574


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:
Davis & Hersh, LLPBy: Cary Greenberg, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 8, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This is a timely filed claim for damages by Steven Rasmussen and Theodore W. Tierney, III (hereinafter "claimants")[1] based 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 CPEP[2] 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.[3]

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 waiting room.

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 patient.

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 County.[4] 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 room.

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 courtroom[5]). 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 Law.[6] 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 leaves.

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 time.[7]

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).
A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category. Miller at 511 - 512.

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.

April 8, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].The Court will refer to the claimants individually as Rasmussen and Tierney.
[2].Comprehensive Psychiatric Emergency Program.
[3].According to Rasmussen, that was the third request made by the officers and all of the requests were ignored.
[4].On cross-examination, the witness stated that there was no other CPEP unit in Nassau or Suffolk County in 2003.
[5].The Court takes notice that the dimension referred to by the witness is approximately 30' by 30'.
[6].NY Mental Hygiene Law § 9.40
[7].This assumes that the time of 1956 hours is the time the altercation started.