Leal v. Simon

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before LAWRENCE; RUBIN; LAWRENCE
• Citation: Leal v. Simon, 542 N.Y.S.2d 328, 147 A.D.2d 198 (N.Y. App. Div. 1989)
• Decision Date: 12 June 1989
• Parties: Ixia LEAL, etc., Respondent, v. Sheldon SIMON, et al., Appellants.

Page 328

542 N.Y.S.2d 328

147 A.D.2d 198

Ixia LEAL, etc., Respondent, v. Sheldon SIMON, et al., Appellants.

Supreme Court, Appellate Division Second Department.

June 12, 1989.

Rivkin, Radler, Dunne & Bayh, Uniondale (Evan H. Krinick and Frank L. Amoroso, of counsel), for appellant Sheldon Simon.

Meyer, Suozzi, English & Klein, P.C., Mineola (Bernard S. Meyer, Patrick J. Purcell, Kenneth L. Gartner and Larry J. Bonchonsky, of counsel), for appellant United Cerebral Palsy Ass'n of Nassau County, Inc. Blume, Easton & Clark, Levittown (Alan W. Clark, Robert S. Blume, Mark Easton, Richard J. Kaufman, Deborah S. Kurtz and David J. Sobel, of counsel), for respondent.

Before LAWRENCE, J.P., and RUBIN, SPATT and SULLIVAN, JJ.

RUBIN, Justice.

This action arises from the defendant Dr. Simon's treatment in 1982 of Charles Leal, a 36-year-old individual who was born severely mentally retarded and blind. While he was treated by Dr. Simon, Charles was a resident of an intermediate care facility of the United Cerebral Palsy Association of Nassau, Inc. (hereinafter UCPA).

Charles had been institutionalized his whole life and, from 1972 until 1981, resided at the Suffolk Developmental Center. In an effort to control his increasingly severe episodes of self-abusive behavior, in 1978 his primary physician at the facility, Dr. Andrezeg F. Zurek, began administering Haldol to him. Dr. Zurek viewed Haldol as the "drug of choice" in eliminating such behavior. The drug was initially administered in low dosages, which were gradually increased in small increments, during which time Charles was carefully monitored for any signs of Haldol-related side effects. Over the course of the following 13 months, the dosage was gradually reduced again to that of four milligrams per day, considered optimal by the doctor inasmuch as the likelihood of side effects was low and Charles's severe self-injurious behavior was contained.

Charles was maintained on this dosage of Haldol for the next two years under Dr. Zurek's care, during which time his behavior improved dramatically: he participated in various recreational group activities, was independent in many aspects of daily living, and was fully ambulatory. In Dr. Zurek's opinion, Haldol maintenance was "the greatest thing" that ever happened to Charles.

Charles's impressive improvement did not go unnoticed by those in the mental health community close to him. He was selected to participate in a new home environment instituted by UCPA known as an intermediate care facility, the purpose of which is to establish a family-like setting where residents can enjoy community resources in an effort to allow them to maximize their potential.

The transfer was effected in March 1981 at which time Charles came under the care of the defendant Dr. Simon, the attending physician at the UCPA facility. Dr. Simon continued Charles's medication of four milligrams of Haldol daily for the next 16 months. Charles adjusted well to his new environment and he steadily improved in his personal and social development, gaining independence in many activities as a result of a behavior modification program instituted by UCPA. He was able to dress, eat and tend to personal hygiene on his own. He was able to converse intelligently in English and Spanish, and he enjoyed many of the recreational activities, including dancing, baseball, kickball and swimming. Moreover, he attained a level of independence in ambulation as a result of having been taught to walk with a blind man's cane as his guide.

In July 1982 Dr. Simon ordered a change in Charles's medication. Instead of receiving four milligrams of Haldol daily at bedtime, he received two milligrams on an as needed basis. Thus, the medication would be administered only if Charles became hyperactive or self-abusive. The doctor explained that his decision was prompted by an impending State audit by the Office of Mental Retardation and Developmental Disabilities of all UCPA programs, which was to include a review of each resident's records. The audit would be focusing, in part, on whether those patients on psychotropic medication had been evaluated with a view toward reduction or elimination of medication, a goal expressly made part of UCPA's policy of encouraging freedom from chemical restraints which was consonant with both Federal and State regulations and stemmed from a concern for preventing the adverse effects of medication. Dr. Simon reviewed the plaintiff's UCPA records and concluded that since Charles had been on Haldol for "quite some time" and was "certainly" at risk for tardive dyskinesia, "an irreversible neurological disorder characterized by involuntary, rhythmic and grotesque movements of the face, mouth, tongue, jaws and extremities" ( Rivers v. Katz, 67 N.Y.2d 485, 490, n 1, 504 N.Y.S.2d 74, n. 1, 495 N.E.2d 337, n. 1), one of the most feared of the drug's side effects, of which Charles had as yet manifested no signs, "[h]e certainly deserved a trial at removal".

Within one month of Dr. Simon's reduction and/or elimination of the medication, the plaintiff regressed to his former self-abusive behavior, which was so severe that it was uncontrollable and required hospitalization under Dr. Simon's care. After an unsuccessful two-week trial of various drugs to control Charles's severe self-abuse, Dr. Simon represcribed Haldol in dosages of up to 15 times what they had been during the maintenance period, causing Charles to experience several of the severe side effects of the drug, e.g., Parkinsonian-like stiffness and tremors, lethargy, drowsiness, and an inability to eat, swallow, talk or walk. Charles was maintained on a high dose of Haldol during the next five weeks of his hospitalization, as well as throughout his 11-week post-hospitalization stay at the intermediate care facility. During that time, his condition deteriorated, and he was transferred back to the Suffolk Developmental Center.

Upon Charles's return to the Suffolk Developmental Center, he was confined to a wheelchair, had developed stiffness, tremors and contractures (shortening of the tendons and ligaments) of all four extremities, was barely able to speak, unable to feed himself, and had lost 28 pounds. The immediate neurological and psychiatric evaluations performed confirmed Dr. Zurek's belief that Charles's condition was the result of an "excessive use of Haldol". In a word, he was catatonic.

Dr. Zurek's treatment plan was for a gradual reduction of the Haldol in an attempt to reverse some of the side effects. As the medication was being discontinued and then eliminated, Charles's physical condition improved gradually, though the self-abusive behavior returned, requiring the use of physical restraints. Despite intensive and painful physical therapy, the condition of his legs did not improve. The flexion contractures remain, and are irreversible. Charles is unable to walk and is confined to a wheelchair.

The plaintiff's theory at trial was that Dr. Simon, acting in the scope of his employment with UCPA, was negligent in reducing the Haldol medication, that both Dr. Simon and UCPA departed from accepted standards of medical practice in failing to obtain the informed consent of Charles's mother and guardian, and that these acts proximately caused his injuries. The defendants asserted that Dr. Simon's decision to reduce Charles's medication was within the scope of professional judgment for which no liability can be imposed and that, even if departures from accepted medical practice were demonstrated, no causal connection between the alleged departures and Charles's injuries existed. They asserted that the Haldol played no part in causing the injuries sustained, but that they were the natural sequelae of Charles's abnormal neurological condition which existed from the time of birth and which "got worse for reasons which are not clear".

At the conclusion of the three-week trial, the court, pursuant to CPLR 4111(b), submitted various special interrogatories which it had formulated to the jury without objection by any party. The jury concluded that "Dr. Simon depart[ed] from accepted medical practices and standards in changing the administration of Haldol from 4 MG [at bedtime] to 2 MG [as needed]", and that this act was both a proximate cause of Charles's injuries and was performed within the scope of Dr. Simon's authority and in furtherance of UCPA's activities, rendering UCPA vicariously liable. The jury rejected the claim asserted against Dr. Simon predicated on lack of informed consent as well as that advanced against UCPA for its alleged failure to earlier observe and/or report to Dr. Simon changes in Charles's condition after his July 1982 discontinuation of the Haldol. With respect to the remaining interrogatory concerning UCPA's "active" negligence, i.e., "Was defendant [UCPA] negligent in failing to provide Ixia Leal, the mother of Charles Leal, with an opportunity to actively participate in the decision to change the medication Charles Leal was receiving" in accordance with its self-imposed policies and procedures, the jury responded affirmatively. As to the second part of the question, i.e., whether this negligence was a proximate cause of any injury sustained by Charles, the jury marked the box labelled "No", inserted an asterisk, and qualified its response with the handwritten addendum: "The jury feels, however, that there were other acts of negligence on the part of [UCPA] which were proximate causes of injury sustained by Charles Leal". In attributing fault to the defendants, the jury was instructed to do so only with respect to each defendant's affirmative negligence, i.e., not to consider UCPA's vicarious liability, and apportioned fault at 55% to Dr. Simon and 45% to UCPA. The jury awarded the plaintiff $2,000,000 for Charles's pain and suffering and for the permanent effect of the injuries and $500,000 for care and maintenance services.

The inherent...