Hirsh v. State, 32311

• Decision Date: 10 June 1960
• Docket Number: No. 32311,32311
• Citation: 8 N.Y.2d 125,202 N.Y.S.2d 296,168 N.E.2d 372
• Parties: , 168 N.E.2d 372 Alice HIRSH, as Administratrix of the Estate of Irving S. Hirsh, Deceased, Respondent, v. STATE of New York, Appellant. (Claim)
• Court: New York Court of Appeals Court of Appeals

Page 296

202 N.Y.S.2d 296

8 N.Y.2d 125, 168 N.E.2d 372

Alice HIRSH, as Administratrix of the Estate of Irving S Hirsh, Deceased, Respondent, v. STATE of New York, Appellant.

(Claim No. 32311.)

Court of Appeals of New York.

June 10, 1960.

Louis J. Lefkowitz, Atty. Gen. (Jerome Lefkowitz and Paxton Blair, Albany, of counsel), for appellant.

Nathan L. Levine, Harry H. Lipsig and Ernest L. Garb, New York City, for respondent.

VAN VOORHIS, Judge.

The State appeals from an affirmance of a judgment against it in the Court of Claims based on alleged negligence in failing to prevent plaintiff's intestate from committing suicide while he was a patient at the Brooklyn State Hospital. He had a previous history of mental illness at other hospitals where he had made two suicidal attempts, one with phenobarbitol and the other by hanging. This time he succeeded in accomplishing him aim. He was pronounced dead on September 4, 1953 of barbiturate poisoning. Death was caused by swallowing about a dozen capsules of seconal at night.

Nobody knew where or now this drug was obtained by him nor where he had kept or accumulated these capsules in his room. It was not medicine that was ordinarily used at the Brooklyn State Hospital at this time. He had been assigned to a ward for suicidal patients. Eighty-five patients were in this ward. Decedent was given his meals in the ward where he was confined, which he left only for treatment or for interviews with a psychiatrist. On these occasions he was accompanied by an attendant or a nurse. When medication of any kind was required on this ward, the nurse would unlock and relock the door upon departure, relocking it after her return with the drugs. These medications not seconal would be brought to the ward in such amounts as were used immediately, even though this meant repeating the procedure every four hours. Visits from family or friends were supervised, and gifts brought into the ward were checked by an attendant. Patients were allowed a monetary allowance of less than $1 at a time, enough to send for cigarettes or gum but insufficient to bribe anyone to get drugs. Decedent had not recently drawn upon this small allowance. When this patient was admitted to the State Hospital, he was completely examined, his clothes removed and he was furnished with State clothing. The regular practice was for the night shift attendants to put the patient to bed after examining his clothing and bed. He had been put to bed wearing only a pair of shorts so as to prevent his secreting anything potentially dangerous. The regular routine included removal of the mattress and inspection under the bed by the attendants.

How he obtained the barbiturates which resulted in his death is a mystery in the record. The burden of proof to establish causal negligence is upon the plaintiff (Morris v. Lake Shore & Michigan Southern Ry. Co., 148 N.Y. 182, 42 N.E. 579). The State could not have provided an employee to watch every move made by this unfortunate man during 24 hours of the day. We are not persuaded that it is evidence of negligence that he was not repeatedly wakened and his bed searched during the night. If institutions for the mentally ill are required to take all of the precautions contended for in this case, and are to be held liable for such delicate mistakes in judgment, patients would be kept in strait jackets or some other form of strict confinement which would hardly be conducive to recovery. No reason is asserted that decedent was not given suitable electric shock treatments, tranquilizers or other treatment designed to mitigate mental depression and self-destructive tendencies. Reasonable care is required to protect such patients against themselves (Martindale v. State of New York, 269 N.Y. 554, 199 N.E. 667; Gries v. Long Island Home, 274 App.Div. 938, 83 N.Y.S.2d 728) but no evidence of lack of it has been shown in this case. An ingenious patient harboring a steady purpose to take his own life cannot always be thwarted.

The judgment appealed from should be reversed and the claim dismissed, without costs.

FROESSEL, Judge (dissenting).

Upon the findings below, amply supported by the evidence in this record, and in light of the cases hereinafter cited, I am of the opinion that the judgment appealed from should be affirmed.

Irving Hirsh, claimant's decedent, died by suicide on September 4, 1953, while a mental patient at Brooklyn State Hospital. Hirsh, when admitted to the hospital on August 21, 1953, had a record of mental illness dating back to 1933, which included numerous attempts at suicide. His suicidal propensites were known to the authorities at Brooklyn State. He had been there previously in 1938-1939. He was returned to Brooklyn State in 1953 as a direct result of two attempts at suicide which occurred during the immediately preceding three weeks. On August 2, 1953 Hirsh, then a patient at the High Point Hospital in Port Chester, New York, attempted suicide 'by taking an indeterminate number of phenobarbitol tablets which he had secluded in his room' (emphasis supplied). His second attempt during that period was by hanging.

In view of his record, the examining physician at Brooklyn State noted in his report that Hirsh 'need(ed) * * * constant nursing attention'. He was placed in the suicidal ward, known as Ward 5. That ward, consisting of several dormitories ranging in size from 2 to 12 beds decedent's dormitory had 12 beds was directly supervised by attendants and nurses. There were three tours of duty, or shifts, among the attendants and nurses: the first from 8:00 A. M. to 4:00 p. m.; the second, known as the 'evening shift', from 4:00 P. M. to 12:00 midnight; and the third, known as the 'night shift', from 12:00 midnight to 8:00 A. M. It was during the evening shift that the patients in Ward 5 were put to bed.

The duties as generally described at trial of the members of the hospital staff who worked on the evening shift were 'To observe patients, to help them in their needs, feed, clothe them, to carry out the orders to the physician and the nureses in charge of the service'; and more particularly it was their responsibility to 'examine clothing and the beds of the suicidal patients'. Those engaged on the night shift, at which time the patients would be sleeping, would 'make rounds at frequent intervals' of the various dormitories in Ward 59 Their inspections were of a cursory nature, looking dormitories in Ward 5. Their inspections all right and in good condition'. At 6:00 A. M. the patients would be awakened, and the night shift attendants would see to it that they dressed and were taken to breakfast.

On the morning of Friday, September 4th, the night shift attendant attempted to awaken decedent Hirsh but he failed to respond. A physician was summoned who pronounced Hirsh dead. That physician, Dr. Cohen, testified that Hirsh appeared to be in a 'deep sleep'. He was clad only in shorts the bed attire customarily worn by the patients in Ward 5. A search was made of the immediate surroundings, but no containers or boxes were discovered.

An autopsy performed subsequently disclosed that Hirsh died by barbituric poisoning, and claimant's expert testified that the 19 grains found establish that decedent had ingested 12 to 15 second capsules of the gelatin covered type. When he was found dead at 6:00 A. M., his body was still warm and there was no sign of lividity, indicating that he had expired 1 to 2 hours previously. The quantity of seconal which he had taken was capable of producing death within from 1 to 6 hours. Hence Hirsh could have taken the seconal at any time after 10:00 P. M. on September 3d.

The record does not reveal the method used by decedent to acquire the seconal capsules. That is a subject of some speculation. There was conflicting testimony as to whether seconal was kept at Brooklyn State Hospital. In any event, since visiting days were on Wednesday and Saturday, decedent could not have had visitors on Thursday, the day before he died. None of decedent's relatives remembered at the trial when they last visited him. The trial court, after seeing them and hearing them testify, expressly dismissed any speculation that they might have brought decedent the seconals.

It is obvious, moreover and the trial court so found that, regardless of the method used by Hirsh in acquiring the seconals, he managed to keep the 12 to 15 capsules secretly hidden from the hospital staff for whatever period he had them. The failure of the hospital staff to find the drugs before they could be used by Hirsh for self-destruction was negligence. It is my opinion that this finding of negligence by the Court of Claims, which was affirmed by the Appellate Division, is amply supported by the evidence in this record, and we are precluded from disturbing it.

As previously pointed out, the authorities at Brooklyn State Hospital had abundant knowledge of decedent's suicidal propensities, and, in particular, knew that he had attempted suicide on a prior recent occasion by means of ingesting barbiturates which he had 'secluded in his room'. Previously decided cases make it clear that such knowledge on the part of the hospital authorities...