Cohen v. State

• Decision Date: 15 April 1976
• Docket Number: No. 57074,57074
• Citation: 382 N.Y.S.2d 128,51 A.D.2d 494
• Parties: Ellen Fisher COHEN, as Administratrix of the Estate of Alan David Cohen, Deceased, Respondent, v. STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 128

382 N.Y.S.2d 128

51 A.D.2d 494

Ellen Fisher COHEN, as Administratrix of the Estate of Alan David Cohen, Deceased, Respondent, v. STATE of New York, Appellant.

Claim No. 57074 Supreme Court, Appellate Division, Third Department.

April 15, 1976.

Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch, Albany, of counsel), and John S. Zachary, Staten Island (Joseph E. Magnotti, Staten Island, of counsel), for appellant.

Aaron J. Broder, New York City, for respondent.

Before KOREMAN, P.J., and GREENBLOTT, MAIN, HERLIHY and REYNOLDS, JJ.

OPINION FOR MODIFICATION

HERLIHY, Justice.

Alan Cohen, the claimant's intestate (referred to herein as decedent) was 23 years of age, married, and at the time of his death, April 22, 1971, he was a third year medical student at the Downstate Medical Center University of the State of New York. Prior to admission as a medical student he had graduated from the University of Rochester, receiving a Bachelor of Arts degree, with a major in psychology.

In January, 1971 he voluntarily entered the Downstate Medical Center psychiatric department for a condition diagnosed as paranoid schizophrenia. He had prior to this admission been an out-patient at the psychiatric ward of the Kings County Hospital. Upon admission he was assigned to Ward 52, which consisted of 32 beds, with an open door, and a program organized around the concept of a therapeutic community. There were five nurses and generally five aides, together with members of the medical staff, occupational therapists, psychology staff and social workers.

On his admission record there was a statement that the decedent had shown suicidal potential and it is readily apparent from a reading of the record that the doctors and nurses in attendance had knowledge of the decedent's suicidal potential.

Culling from the 32-page decision of the Judge of the Court of Claims, his finding of liability is based upon the following:

I find that the defendant, in the form of the State University of New York, Downstate Medical Center and its employees, including physicians (see, Bing v. Thunig, 2 N.Y.2d 656, 666, 667, 163 N.Y.S.2d 3, 10, 143 N.E.2d 3, 8) did not treat or supervise the decedent with the ordinary and reasonable care and diligence, or with that medical judgment and skill required by the accceptable standards of the community.

I also find that Dr. Sverd, the treating physician, did not, at this point in his medical career, possess the requisite skill or trained psychiatric judgment to, essentially unsupervised, provide ordinary and reasonable psychiatric medical treatme and care to this decedent. See Pike v. Honsinger, 155 N.Y. 201, 209, 210, 49 N.E. 760, 762 and Zophy v. State of New York, 27 A.D.2d 414, 416, 279 N.Y.S.2d 918, 920. See, also, Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 34 N.E.2d 367; Benson v. Dean, 232 N.Y. 52, 133 N.E. 125; Fatuck v. Hillside Hospital, 45 A.D.2d 708, 356 N.Y.S.2d 105; Wright v. State of New York, 31 A.D.2d 421, 423, 300 N.Y.S.2d 153, 155; McGovern v. Attie, 30 A.D.2d 559, 291 N.Y.S.2d 167; Herold v. State of New York, 15 A.D.2d 835, 224 N.Y.S.2d 369.

and also:

In the case at bar, there was much more than a mere error of judgment. There was not one but many errors of judgment made by a doctor not qualified in an unsupervised status to make a judgment; made by those in supervisory capacity; and, all made without careful examination.

The rule of law is well established that a doctor is not liable for a mere error of judgment provided he does what he thinks is best after a careful examination. (See Benson v. Dean, 232 N.Y. 52, 133 N.E. 125; Pike v. Honsinger, 155 N.Y. 201, 210, 49 N.E. 760, 762; Collins v. State of New York, 23 A.D.2d 898, 258 N.Y.S.2d 938, affd. 17 N.Y.2d 542, 268 N.Y.S.2d 314, 215 N.E.2d 500; Trapani v. State of New York, 23 A.D.2d 709, 257 N.Y.S.2d 224; Gioia v. State of New York, 22 A.D.2d 181, 254 N.Y.S.2d 384; Muhlmichl v. State of New York, 20 A.D.2d 837, 247 N.Y.S.2d 959; Szostak v. State of New York, 20 A.D.2d 828, 247 N.Y.S.2d 770; Wilson v. State of New York, 14 A.D.2d 976, 221 N.Y.S.2d 354, mot. for lv. to app. den. 11 N.Y.2d 643, 226 N.Y.S.2d 1026, 181 N.E.2d 461.)

The issue in this case is whether or not the defendant's doctors made a careful examination of the decedent and then exercised reasonable medical care in determining that the decedent should not be restricted to the ward on April 22, 1971.

As found by the court, the treating physician was not a qualified psychiatrist (Mental Hygiene Law, § 27, subd. (4)) and had only just started on the many years of residency required to attain certification. In recognition of this system of having residents handle the immediate contact and treatment of patients, the defendant had an established hierarchy to provide medical care which in the decedent's case was: Dr. Bjork (attending doctor); then Dr. Rosenberg, a third year resident; and then Dr. Sverd, a first year resident and treating physician.

The determinative factual issue is whether or not a qualified psychiatrist was actively supervising the care of the decedent. In this case only Dr. Bjork could have been such a doctor and the court found that the record did not establish that she had made any informed judgment in April of 1971 as to the decedent's suicide propensities.

Dr. Bjork testified that as of April 14, 1971 she formed the opinion based upon observation of decedent in the ward and discussion with Dr. Sverd and other members of the facility having contact with decedent that he should be prepared for discharge from the hospital. She knew that the decedent had made statements to the hospital staff about suicide. However, there is no evidence of any prior attempts at suicide by the decedent. The practice was for patients to be discussed at team meetings held about three times a week. Dr. Bjork testified that it was 'bad judgment' to let the patient off the ward on the day of death.

While this record establishes that patients were discussed at team meetings, it is not established that any evaluation of this decedent's suicide propensities was made by a qualified psychiatrist during his stay at the hospital. While there are inferences of judgment being made by Dr. Bjork, there is nothing in the hospital records to support a finding that she ever made a medical judgment fully based upon the nurses' notes and any kind of personal interview. The fact that the decedent was himself a medical student at Downstate may have influenced the staff in exercising its judgment.

What happened in this case was the result of ill-defined policy, in the...