Lichtenstein v. Montefiore Hospital and Medical Center

• Decision Date: 03 March 1977
• Parties: Ruth LICHTENSTEIN, as Administratrix of the Goods, Chattels and Credits of Gary Lichtenstein, Deceased, Plaintiff-Respondent-Appellant, v. MONTEFIORE HOSPITAL AND MEDICAL CENTER, Defendant-Appellant, and Gerald Schneider and Harvey Penziner, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 18

392 N.Y.S.2d 18

56 A.D.2d 281

Ruth LICHTENSTEIN, as Administratrix of the Goods, Chattels and Credits of Gary Lichtenstein, Deceased, Plaintiff-Respondent-Appellant, v. MONTEFIORE HOSPITAL AND MEDICAL CENTER, Defendant-Appellant, and Gerald Schneider and Harvey Penziner, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

March 3, 1977.

Arthur N. Seiff, New York City, of counsel (John J. Tullman, New York City, attorney), for plaintiff-respondent.

Thomas R. Newman, New York City, of counsel (Frank Bastone, Jr., New York City, with him on the brief; Bower & Gardner, New York City, attorneys), for defendant-appellant.

Before STEVENS, P.J., and MURPHY, LUPIANO, SILVERMAN and LANE, JJ.

SILVERMAN, Justice.

This is an action for damages for wrongful death of Gary Lichtenstein, husband of plaintiff Ruth Lichtenstein. Plaintiff alleges that Gary's death was caused by the negligence of defendant-appellant, Montefiore Hospital and Medical Center (hereinafter 'hospital'), in permitting Gary to escape ('elope') from an open psychiatric unit at the hospital, as a result of which, plaintiff alleges, Gary committed suicide a few hours later by jumping under a subway train. The jury rendered an verdict in favor of plaintiff against the hospital and against two physicians, Drs. Schneider and Penziner. The trial judge thereafter dismissed the complaint as against the doctors, and although plaintiff filed a notice of appeal from that dismissal, plaintiff is not pressing that appeal. The hospital appeals from the judgment against it.

As to the claim against the hospital, plaintiff does not criticize the treatment that the doctors directed for Gary, including his being in an open psychiatric unit with the therapeutic benefit of such an open unit (and the inevitable risks incident thereto). Plaintiff does citicize the hospital's alleged negligence in carrying out the doctors' instructions, as a result of which Gary eloped. The doctors had directed that Gary's whereabouts be checked every 15 minutes to one-half hour. The psychiatric unit in which Gary was a patient at the hospital was not locked. One reason for this was the judgment of the doctors that the patients would do better in an atmosphere that was not prisonlike and in which the patients would be encouraged to assume greater responsibility for taking care of themselves. However, a nurse was constantly in attendance 10 to 15 feet from the door and it was her duty not to permit patients to leave the unit without authorization. Patients did not wear any distinctive garb but were dressed in street clothes, as of course were visitors, etc. Gary was apparently an 'informal' patient within the meaning of the Mental Hygiene Law § 31.15, and as such was legally 'free to leave such hospital at any time.' Id.

At 11:30 of the morning of August 16, 1966, Gary was found to be missing from the unit. At about 4:30 P.M. that day his body was found under a subway train.

There was no evidence as to the circumstances in which Gary left the psychiatric unit in the hospital. In our view, there was thus no evidence that the hospital was negligent.

Plaintiff's position on this point appears to be that negligence may be inferred from the fact that Gary left the facility without authorization. We do not agree. At least in the case of an open psychiatric unit, the mere fact that a patient leaves secretly and without authority is not evidence of negligence on the part of the hospital. This is not a Res ipsa loquitur case, This was an open psychiatric unit, not a maximum security prison, or a bank vault, or a closely guarded military installation. The nurse was a nurse, not a sentinel. Obviously any number of perfectly legitimate incidents could have occurred that would momentarily distract the nurse's attention--someone asking for a direction, a patient needing momentary assistance, etc.--and during that distraction, a patient dressed in street clothes like visitors etc., and intent on leaving the unit, could slip through the unlocked door without any negligence on the part of the hospital. Accordingly, we think the fact that the patient left is not evidence of negligence on the part of the hospital. And there is no other evidence of negligence.

We think also that the form of the special interrogatory on this issue, as posed to the jury, unduly narrowed and distorted the issue. The relevant issue as to negligence was whether the hospital used reasonable care in the care of the patient pursuant to the psychiatrists' directions, the reasonableness to be judged relative to all the circumstances, including the foreseeability and severity of the actual risk of suicide in the medical judgment of the psychiatrists ('(t)he risk reasonably to be perceived defines the duty to be obeyed, . . .' Palsgraf v. Long Island R.R Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928).), and the desirability of permitting the patient to benefit from the therapeutic value of an open unit. Although the court discussed these factors, the formulation of the special question to the jury on the issue of negligence perhaps obscured these factors and could easily have led the jury to concentrate on the narrow question as to the adequacy of the precautions taken to prevent the patient from leaving the hospital without reference to other circumstances bearing on reasonableness. Thus the question submitted to the jury on this issue was, 'Were the defendants negligent in permitting Gary Lichtenstein to leave the hospital on August 16, 1966?' This was accentuated by the court's charge to the jury that 'the law says that the hospital was under a duty to use reasonable care to prevent Mr. Lichtenstein from escaping from its facility.'

In our view, furthermore, the verdict was grossly excessive, being $400,000 (which with interest came to $638,000 by the time of the judgment). The statute limits damages in wrongful death cases to 'fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought.' EPTL § 5--4.3. Here, decedent was 20 years old, a student in his third year in college and suffering at the time from an acute and incapacitating mental illness. He was not and never had been self-supporting. His wife, of the same age, was self-supporting. They had been married six months at the time he went into the hospital. The only other person for whose benefit the action was brought was the decedent's father, then aged 66 and retired, and to whose support decedent apparently had never contributed. In these circumstances, an appraisal of the pecuniary loss at $400,000 was much more speculative than the usual effort to appraise the pecuniary loss in a wrongful death case, and was, we think, grossly excessive.

While dismissal of the complaint would be consistent with our view that there is no evidence of negligence, we have the discretion to order a new trial. Brown v. Rosenbaum, 259 App.Div. 304, 19...