New York State Court of Claims

New York State Court of Claims
RANDONE v. THE STATE OF NEW YORK, # 2010-010-001, Claim No. 113362


Defendant liable where handicapped inmate was not assisted in shower.

Case information

UID: 2010-010-001
Claimant(s): MARIA RANDONE
Claimant short name: RANDONE
Footnote (claimant name) :
Footnote (defendant name) : The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113362
Motion number(s):
Cross-motion number(s):
Judge: Terry Jane Ruderman
Claimant's attorney: RUTBERG & ASSOCIATES, P.C.
By: Richard Greenblatt, Esq.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 29, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant seeks damages for injuries she sustained on May 21, 2005, when she was a resident at the Hudson River Psychiatric Center (Hudson River), and slipped and fell in the shower. Defendant seeks recovery, on its counterclaim, for the costs of claimant's stay in its facilities from May 3, 2005 through April 30, 2007.

The Claim

Claimant was involuntarily admitted to Hudson River on May 3, 2005. At that time, she was confined to a wheelchair because she was unable to walk. She could, however, stand for brief periods. As part of the entry process, claimant was interviewed by a doctor and a nurse. A Falls Risk Assessment Form (Ex. 7) and a Psychiatric Nursing Assessment Form (Ex. 8) were completed. The Psychiatric Nursing Assessment Form indicated that claimant was five feet tall, 226 pounds, arthritic, schizophrenic, incontinent and "needs assistance with ADLs [activities of daily living]" (Ex. 8, p 5). According to the Falls Risk Assessment Form, claimant had problems affecting weight-bearing joints and was non-ambulatory. As set forth in the summary of findings, "Pt has multiple factors which put her at high risk for a fall" (Ex. 7, p 2).

The deposition testimony of Nursing Supervisor Jamie Belding was received into evidence (Ex. 11). She testified at her deposition that, when a patient is wheelchair-dependent, an aide must assist the patient's transfer from the wheelchair to the shower chair and vice versa (Ex. 11, pp 12-17). She further testified that claimant could use a non-handicap shower only if an aide used a shower chair and remained to assist claimant (Ex. 11, pp 19, 17). She also testified that you could never let a patient requiring assistance into a shower alone (id. at pp 19-20).

Claimant testified that, upon her admission, she was assisted in showering in a handicap shower with a handicap chair, as depicted in exhibits 4 through 6. Claimant's ward had a non-handicap (Exs. 2, 3) and a handicap shower (Exs. 4-6). On May 21, 2005, claimant asked the therapy aide for permission to use the handicap shower. Claimant testified that she was not offered any assistance and was directed to the non-handicap shower where there were no grab bars and no chair in the stall. As claimant attempted to step into the shower, she slipped and fell on the floor, while her aide was in the hall(2) (Ex. 14, p 16; Ex. 9; Ex. 12, p 17). Claimant's therapy aide testified that she was not instructed as to whether a wheelchair-bound patient could safely shower in a non-handicap shower room (Ex. 14, p 19).

Dr. Louis M. Wetstein, the Director of Facilities Operations at New York Presbyterian Hospital, offered expert testimony on behalf of claimant. In his position, Wetstein is responsible for the day-to-day operations of the hospital and is a member of the facility's safety committee and the slips, trips and falls subcommittee. Wetstein testified that, when patients are assessed to be at a high risk of falls, a label is usually placed on their medical record or their door. In claimant's case, however, there was no such identification.

Claimant needed assistance with the activities of daily living, which included showering. Wetstein opined that it was a departure from the standard of care if the therapy aide assigned to shower claimant was not aware that claimant was at a high risk of falling. He further testified that the non-handicap shower, which was not equipped with grab bars or a chair, was inappropriate for claimant's use without assistance. Wetstein concluded that permitting claimant to shower without assistance was a substantial contributing factor in the cause of her accident and that the failure of the Hudson River staff to comply with the relevant safety rules resulted in claimant's fall.

Defendant neither cross-examined claimant's witnesses nor presented any of its own witnesses regarding the claim. Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant established that defendant is 100 percent liable for her fall. The unrefuted evidence established that, prior to her fall, Hudson River determined that claimant needed assistance with daily activities (Ex. 8, p 5), which would include showering, and that claimant had "multiple factors which put her at high risk for a fall" (Ex. 7, p 2). Further, the nursing supervisor's deposition testimony established that claimant should not have been left alone to shower without assistance (Ex. 11). Additionally, the testimony of claimant's expert showed that defendant failed to properly label claimant's medical record and her door to indicate that she was at a high risk of falls. Thus, the uncontroverted evidence established that defendant failed to take proper steps to safeguard claimant from entering a shower without the necessary assistance and that this failure caused her to fall (see Reardon v Presbyterian Hosp. In City of N.Y., 292 AD2d 235).

The Counterclaim

It is clear, that pursuant to Mental Hygiene Law Article 43, the State may assert a counterclaim to recover the costs of care and treatment rendered to a claimant at its mental health facilities(3) (see State of New York v Patricia II, 6 NY3d 160). Here, however, the only proof defendant presented in support of its counterclaim was a bill in the amount of $467,051.94 from the New York State Office of Mental Health covering claimant's stay in Hudson River and other State facilities from May 3, 2005, 18 days prior to her fall, through April 30, 2007 (Ex. E). Claimant did not dispute that she was in State facilities for the dates covered by defendant's exhibit. However, claimant maintains that, since she was covered by Medicare (Ex. 10), defendant was already compensated for the costs of claimant's care and that, in any event, claimant should not be liable to defendant for any days in a facility which were necessitated by defendant's negligence.

The Court finds that contrary to defendant's argument, its proof, which solely consisted of a bill for $467,051.94 with corresponding dates, was insufficient to establish its entitlement to damages in that amount (see p 2 of Defendant's unpaginated three-page brief). Rather, the Court finds that while defendant is entitled to recover for the costs of services rendered, the determination of the specific amount must await a trial on damages. At the damages trial, evidence will be heard from both parties and, ultimately, defendant may only recover for its costs which were not reimbursed by Medicare and only to the extent that its costs were unrelated to claimant's fall (see Langevin v State of New York, 196 Misc 2d 809 [claimant, who alleged negligence and medical malpractice in a psychiatric facility, moved to dismiss defendant's counterclaim for services rendered; the motion was denied and the Court held that defendant would have to establish the number of days, which were unrelated to the alleged negligence and malpractice, and the amount of charges imposed, after allowing for Medicare coverage]; Genao v State of New York, 178 Misc 2d 512, 520 [State found liable for negligent supervision of its psychiatric patient who was raped; defendant was entitled to recover on its counterclaim for the amount of services rendered to claimant which were "unrelated to the rape," i.e., "all the fees incurred prior to the rape and the appropriate portion thereafter"]).

Here, the Court finds that defendant is 100 percent liable for claimant's fall and that defendant is entitled to recover the costs of services rendered in its facilities which were not covered by Medicare and which were unrelated to claimant's fall. The matter will be set down for a trial on the issue of damages regarding the claim and the counterclaim.

All motions not ruled upon are hereby denied.


January 29, 2010

White Plains, New York

Terry Jane Ruderman

Judge of the Court of Claims

2. The following documents were received into evidence: the deposition testimony of claimant's therapy aide (Ex. 14), the deposition testimony of the nurse who responded to claimant's fall (Ex. 12) and the progress notes for claimant regarding the incident (Ex. 9)

3. The statute does not distinguish between voluntary and involuntary admissions.