Bowen v. Rubin, CV-01-70 (JBW).

• Decision Date: 24 August 2001
• Docket Number: No. CV-01-70 (JBW).,CV-01-70 (JBW).
• Citation: 213 F.Supp.2d 220
• Parties: Clement BOWEN, Joseph Costa, Robert Fazio, Kenneth France, Lonnie Grant, Timothy Johnson, Theodore Leabough, Thomas Mittendorf, by John Mittendorf as next friend, Howard Ziegberman, Disability Advocates, Inc., and Disability Advocates, Inc., o/b/o Patient 1, Patient 3, Patient 7, Patient 10, Patient 13, Patient 16, Patient 17, Patient 19, Patient 20, Patient 21, Patient 22, and Patient 23, Plaintiffs, v. Jacob RUBIN d/b/a Leben Home for Adults, Leben Home for Adults, Americare, Inc., Martin Kleinman, Diane Ahearn, Parkway Hospital, Inc., Jamille Peress and Harry Josifidis, a/k/a Harry Josfidis, Defendants.
• Court: U.S. District Court — Eastern District of New York

213 F.Supp.2d 220

Clement BOWEN, Joseph Costa, Robert Fazio, Kenneth France, Lonnie Grant, Timothy Johnson, Theodore Leabough, Thomas Mittendorf, by John Mittendorf as next friend, Howard Ziegberman, Disability Advocates, Inc., and Disability Advocates, Inc., o/b/o Patient 1, Patient 3, Patient 7, Patient 10, Patient 13, Patient 16, Patient 17, Patient 19, Patient 20, Patient 21, Patient 22, and Patient 23, Plaintiffs, v. Jacob RUBIN d/b/a Leben Home for Adults, Leben Home for Adults, Americare, Inc., Martin Kleinman, Diane Ahearn, Parkway Hospital, Inc., Jamille Peress and Harry Josifidis, a/k/a Harry Josfidis, Defendants.

No. CV-01-70 (JBW).

United States District Court, E.D. New York.

August 24, 2001.

Lisa E. Cleary, Patterson, Belknap, Webb & Tyler, New York City, Jeanette M. Zelhof, MFY Legal Services, Inc., New York City, Timothy A. Clune, Disability Advocates, Inc., Albany, NY, for Plaintiffs.

Marcy Dorothy Sheinwold, Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, NY, for Jacob Rubin and Leben Home For Adults.

Joseph Cammarosano, Kopff, Mardelli, Depf, New York City, for Diane Ahearn.

James J. Girvan, Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola, NY, for Jamille Peress.

Barry G. Saretsky, Saretssky, Katz, Dranoff & Glass, New York City, for Jarry Josifidis.

MEMORANDUM AND ORDER

GOLD, United States Magistrate Judge.

Plaintiffs have moved pursuant to Fed. R.Civ.P. 17 for the appointment of next friends to act on behalf of certain of the named plaintiffs. After considering plaintiffs' submissions and defendants' opposition, plaintiffs' motion is granted.

Background¹

This litigation concerns allegations of wrongful treatment of plaintiffs, mentally disabled individuals, while they resided at the Leben Home for Adults ("Leben Home"). The Leben Home provides long-term, comprehensive residential care to adults, many of whom depend upon the assistance of others to eat, bathe, and perform other daily functions. Many of the Leben Home residents suffer from mental disabilities and are unable to work.

In February 1998, an employee of defendant Parkway Hospital, a private, for-profit facility, made an anonymous telephone call to the New York State Commission on Quality of Care for the Mentally Disabled, alleging that groups of Leben Home residents were being brought to the hospital on a "weekly basis" to undergo prostate surgery. As a result, the New York State Department of Health ("DOH"), Bureau of Professional Medical Conduct, conducted an investigation. An administrative hearing was held, and a report issued. The DOH determined that in certain instances, only cursory, "triage" examinations of plaintiffs were conducted prior to their admission to Parkway for prostate surgery, and that plaintiffs were either asymptomatic or exhibited only mild symptoms. The DOH concluded that the doctors involved, defendants Jamille Peress and Harry Josifidis, had recommended unwarranted treatment and performed unnecessary surgical procedures on plaintiffs. At the close of the inquiry, the DOH found defendants Peress and Josifidis, both connected with defendant Parkway Hospital, had committed professional misconduct in performing prostate surgery on plaintiffs.

The hearing officer also concluded defendants Peress and Josifidis did not secure the informed consent of plaintiffs prior to performing the unnecessary surgery. The hearing officer did not credit defendants' claims that they provided plaintiffs a full explanation of the risks and implications of prostate surgery, particularly because some plaintiffs, by defendants' own admission, may have suffered from a mental disability. Testimony given by defendants Peress and Josifidis at the DOH hearing indicates they sought the assistance of defendant Diane Ahearn, an employee of Americare,² in gaining plaintiffs' trust so plaintiffs would be induced to sign the informed consent forms.

As a result of this investigation and determination, defendant Peress' medical license was revoked.³ Defendant Josifidis' license was suspended for three years, with the suspension stayed for all but six months, and he was placed on probation for two and a half years. Subsequently, plaintiffs instituted this lawsuit, claiming defendants' conduct violated various state and federal laws, including the Americans with Disabilities Act of 1990 and 42 U.S.C. §§ 1985(3), 1986.

Under consideration now is plaintiffs' motion to appoint next friends for plaintiffs Bowen, Costa, Fazio, France, Grant, Johnson, Leabough, Ziegberman and Patients 1, 7, 10, 13, 16, 19, and 23.⁴ Plaintiffs have submitted the affidavits of psychiatrists and the attorneys who seek to represent plaintiffs as guardians ad litem.⁵ Defendants challenge plaintiffs' motion in two respects. First, they argue plaintiffs have failed to demonstrate they suffer from a mental disability requiring the appointment of guardians. Second, they claim the proposed guardians lack sufficient interest in the litigation and personal connection to plaintiffs to serve as suitable representatives. I address these points in turn.

Discussion

The procedure for the appointment of guardians is governed by Fed.R.Civ.P. 17(c), which states:

[w]henever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.

Plaintiffs, other than Thomas Mittendorf, who proceeds by next friend, John Mittendorf, are not represented by general guardians, and thus this Court must determine whether they are incompetent and require the appointment of next friends under Rule 17(c). State law provides the controlling authority for determining whether an individual has capacity to sue on his own behalf. See Fed.R.Civ.P. 17(b) (stating "[t]he capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile."); Thomas v. Humfield, 916 F.2d 1032, 1034-35 (5th Cir.1990) (finding state law the proper source for determining whether an individual is incompetent and in need of a guardian ad litem under Rule 17(c)); 4 James Wm. Moore et al., Moore's Federal Practice § 17.21[3][a] (stating "whenever an individual lacks capacity to sue or be sued under the law of the individual's domicile because the individual is ... incompetent, the provisions of Rule 17(c) come into play ...."); see also Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 656-57 (2d Cir.1999) (noting that capacity to sue is determined by reference to state law, and discussing the capacity of a representative to sue in federal and state proceedings). I turn then to New York law to determine whether plaintiffs require the representation of guardians in this action.

New York law requires that "an adult incapable of adequately prosecuting or defending his rights" have a guardian appointed on his behalf. N.Y.C.P.L.R. § 1201. The party seeking appointment of a guardian must show by a preponderance of the evidence that the individual's "condition impedes her ability to protect her rights ...." New York Life Ins. Co. v. V.K., 184 Misc.2d 727, 735, 711 N.Y.S.2d 90 (N.Y.Civ.Ct.1999). The power given to a district court to appoint a guardian ad litem "has been broadly interpreted and has not been limited by a narrow construction of the words `infant' or `incompetent person.'" Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, supra, § 1570. While "a person of unsound mind but not judicially declared incompetent may sue or be sued in the same manner as any other person" Sengstack v. Sengstack, 4 N.Y.2d 502, 176 N.Y.S.2d 337, 341-42, 151 N.E.2d 887 (1958), it is well-settled that, under New York law, a guardian ad litem may be appointed by a court at any stage of an action in which an adult is incapable of adequately prosecuting or defending his rights, even when no formal adjudication of incompetence has been made. See Ciena v. State (Matter of Lugo), 7 N.Y.2d 939, 197 N.Y.S.2d 740, 165 N.E.2d 581 (1960); Tudorov v. Collazo, 215 A.D.2d 750, 627 N.Y.S.2d 419 (2d Dep't 1995).

In support of their application, plaintiffs have submitted declarations of plaintiffs' treating psychiatrists. See Declaration of Julia Price Rosner ("Rosner Decl."), Exs. G-J; Declaration of Timothy A. Clune ("Clune Decl."), Exs. G-J; Clune Supp Decl., Exs. A-F. Each declaration states that, in the psychiatrist's opinion, the party is "unable to adequately protect his own interest in this complex litigation and requires the assistance of a `next friend' to assist him in prosecuting this litigation." The psychiatrists' declarations state the length of time the physician has treated each plaintiff, and each plaintiffs diagnosed condition. The diagnosed conditions of plaintiffs are schizophrenia, chronic undifferentiated schizophrenia, paranoid schizophrenia, and major depressive illness. According to the psychiatrists' declarations, these illnesses cause plaintiffs to reside in adult care facilities and nursing homes.

Defendants contend plaintiffs' submissions are deficient because the psychiatrists do not describe in specific terms the precise manner in which plaintiffs' medical conditions render them incapable of adequately prosecuting their claims. Defendants suggest a hearing should be held to ascertain the evidentiary support for plaintiffs' application. No hearing is required, however, in light of the record before the Court, and particularly as it is plaintiffs themselves, not the Court or their adversaries, who seek representation...