New York Criminal Lawyer Blog
The Facts:
At the time of the rape, the victim (or claimant) was 20 years of age and had a history of psychiatric problems, including several hospitalizations. She was hospitalized at South Beach in 1990 after trying to jump from a window. Other probable suicide attempts include setting the bathroom and her bathrobe on fire, drowning in the bathtub, and choking herself with a cloth while being transported in an ambulance. In 1990, she apparently attacked her father over whether she could leave the house late one night.
A New York Drug Crime Lawyer said in August of 1992, the claimant was admitted to South Beach after she had spoken about suicide, been unable to sleep, had bouts of crying and told of hearing voices. At that time she had been attending a Mental Health Center. On 9 September 1992, after nearly a three-week hospitalization, the claimant was discharged; the discharge note described her stay as “uneventful”.
On 31 October 1992, the claimant who was not sleeping well was walking the streets in pajamas, and throwing eggs out of grocery stores. Thus, she was readmitted to South Beach and assigned to an acute care ward. The medical staff at South Beach placed claimant under the standard level of observation which means observing the patient, and so recording, every 30 minutes. The other levels of observation are every 15 minutes and one-to-one, or continuous observation. In addition, there is also a structured treatment unit for patients who are difficult to manage and who exhibit violent behavior. Here, a New York Drug Possession Lawyer said the victim’s hospitalization time was not uneventful. Her first morning, claimant became agitated, refused to eat and attempted to attack the staff. She was placed in four-point restraint for two hours. On 2 November 1992, claimant’s second full day at South Beach, she was placed in seclusion for striking another patient and in restraints again for shouting and banging on doors and windows. Later that day, she was again screaming loudly and punching and kicking and was physically threatening to staff and other patients. The claimant was once more put in restraints. On 3 November, claimant became agitated and disruptive and was put in locked seclusion. The next day, she was subject to four-point restraint after throwing a chair at staff when she was refused the use of a telephone. On 5 November, she hit a staff member in the face and was placed in restraints.
A Nassau County Drug Possession Lawyer said on the day in question, Friday, 6 November, claimant awoke at 6 a .m. in an agitated state, shouting, banging on doors and unable to follow directions. The claimant was administered medication which had a calming effect. At about 3 or 3:30 that afternoon, the claimant, who was yelling and threatening the staff, was given an injection of Haldol and placed for observation in what is known as the quiet room. By that time, Lithium, Ativan and Cogentin, as well as the Haldol, had been administered; all but Cogentin can cause drowsiness and/or lethargy. There was no documentation or testimony from the hospital staff as to when claimant was released from the quiet room. The claimant testified that she was tired and sleepy after receiving the Haldol injection, and went to the first empty room on the unit and fell asleep, room 814. The claimant’s drowsiness lasted the rest of the day; the emergency room record of Staten Island Hospital, where claimant was taken after the rape, contained the entry that she sleeps at intervals.
In theory, a document known as the Patient Accountability Record (PAR), which is intended to record the location of every patient on the unit, subject to the general 30-minute level of observation, would provide evidence of the claimant’s whereabouts in the critical late afternoon hours. Testimony was elicited and presented before the court.
The most reasonable conclusion to be drawn from the credible evidence is that the claimant, supposedly on a 30-minute watch, sleepily wandered into room 814 just before 4 p.m., where she remained unobserved by the South Beach staff until some three hours later, following her rape. It is insufficient, in the view of contradictory evidence, to infer a specific fact from the general policy; i.e., the testimony that one would not allow a patient to sleep in a room that was not assigned to her.
Subsequently, claimant brought the instant action for damages arising from her rape on 6 November 1992, during the time when she was a patient at South Beach Psychiatric Center in Richmond County.
The claim was tried and claimant testified on her own behalf. She called as witnesses her treating psychiatrist at South Beach, nurse, mental therapy aide, and an examining psychiatrist.
The defendant called one expert witness, a psychiatrist.
The Issues:
Is defendant liable to claimant for damages? Is defendant guilty of medical malpractice? Is defendant responsible to claimant for her rape? Did defendant owe a duty of protection to claimant?
The Ruling:
Here, the defendant’s duty of care to protect claimant extends to various risks that could be anticipated; it extends beyond a danger posed by any particular individual. A Queens Drug Possession Lawyer said an intervening criminal act does not nullify a defendant’s negligence where such act was itself one of the foreseeable dangers to be guarded against.
The defendant does not concede that a rape occurred. By the fair preponderance of the credible evidence, the court concludes that a rape occurred and that such incident was claimant’s first experience of sexual intercourse.
Moreover, on the witness stand, the claimant was at times excitable and unfocused; nonetheless, her narration of what happened is found by the court to be quite credible.
Further, the incident report provides that claimant was found standing in the room dressed in pajamas top and bright red blood running down both legs and bright red spots of blood on the floor. The rape test report from Staten Island Hospital indicated “Hymen ring lacerated”. In fact, the defendant’s own psychiatrist apparently accepted the fact of claimant’s rape.
Undoubtedly, the rape was traumatic regardless of whether she was virginal or non-virginal. It was clear in the interview that she was upset that her virginity was violated.
Under the law, a finding of medical malpractice requires a deviation from accepted medical practice which proximately caused the subject injury. The level of observation for a patient at a psychiatric facility is a determination entrusted to the judgment of medical professionals. An analogous balancing occurs in choosing among the three levels of observation, the benefit of closer scrutiny against the loss of independence, responsibility and the opportunity to positively interact with other patients on the unit.
Here, there was no medical malpractice. A difference of opinion, which in hindsight had a profound result, does not constitute malpractice.
However, the court finds that defendant was negligent in its supervision of the claimant; it failed to use reasonable care to protect claimant from a not unforeseeable occurrence; that the defendant did not adhere to its own 30-minute observation level. There is no credible evidence that any staff member of South Beach saw the claimant from 3:30 until about 6:45 when they heard her crying after the rape. Moreover, room 814 should have been locked, hardly a costly or sophisticated security measure. The defendant is fully responsible; no comparative negligence on the part of claimant has been advanced or suggested.
On Damages and the Defendant’s Counterclaim:
Here, claimant was a troubled person prior to 6 November 1992; she was also a troubled person thereafter. Following the rape, she remained hospitalized for another two months, until 5 January 1993. She was subsequently hospitalized on four separate occasions in 1995 for about 100 days.
Prior to the rape, claimant had been diagnosed as suffering from a mental disease known as Bipolar Disorder with Psychotic Features. It is a mood disorder that is described as characterized by early onset; it will cycle over time, the normal and manic (or depressive) states will alternate, with the periods of normal behavior becoming shorter.
The examining psychiatrist testified that the suicide attempts after November of 1992 were caused by the rape, that subsequent hospitalizations were 75-80% attributable to the rape, and that the rape aggravated or exacerbated claimant’s pre-existing mental condition, doing so on a permanent basis. He testified that claimant’s permanent low, or lower, self-esteem, hyper-sexuality and feelings of worthlessness and hopelessness are manifestations of rape trauma syndrome, a conclusion which on cross-examination he revised to post-traumatic stress disorder. The psychiatrist did state that in cases of rape, the disorder is rarely worked out by the claimant within three months, and that claimant’s prognosis is more guarded than it otherwise would have been. She will require treatment therefor on a permanent basis.
Expert testimony on “rape trauma syndrome” has been ruled admissible to explain a claimant’s delay in reporting the assault or other behavior. The operative standard is the fourth edition of the Diagnostic and Statistical Manual of Mental Diseases, commonly known as DSM IV, in which the broader category of post-traumatic stress disorder is not broken down further.
The statements of defendant’s expert witness were even contradictory. He said that while the rape was complicating, it was not exacerbating; but later stated that the rape had been a traumatic experience.
Here, claimant did not have an employment history; nor was there any testimony adduced as to whether she would have been able to secure employment in the future, but for the impact of the rape experience. Consequently, no award will be made for past or future lost income.
In evaluating the evidence with respect to pain and suffering, the court concludes that claimant suffered an extreme trauma on 6 November 1992 and such event exacerbated her existing Bipolar disorder, more severely in the short term. Thus, the award of past damages for pain and suffering in the amount of $200,000 and future pain and suffering damage in the amount of $50,000, for a total of $250,000 is proper.
The defendant, through its counterclaim, seeks to reduce the award by $151,318.16, the accumulation of charges for 7 separate hospitalizations of claimant in facilities of the State Office of Mental Health.
The authority for such counterclaim rests upon the Mental Hygiene Law, which holds the patient, her estate, parents or legal guardian if under 21 years of age, financially responsible for services rendered to the patient. Less precise than a parallel provision of the Social Services Law which explicitly references recovery against personal injury awards and a statute, by and large, in derogation of the common law principle that damages for personal injury are intended to make the injured party whole.
Thus, claimant is awarded $148,763, which is $250,000 less the counterclaim amount of $101,237. All other motions not ruled upon are denied.
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