O'Neil v. State, 51102

• Decision Date: 06 July 1971
• Docket Number: No. 51102,51102
• Citation: 323 N.Y.S.2d 56,66 Misc.2d 936
• Parties: Daniel J. O'NEIL, as Administrator of the Estate of Jacqueline O'Neil, Deceased, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 56

323 N.Y.S.2d 56

66 Misc.2d 936

Daniel J. O'NEIL, as Administrator of the Estate of Jacqueline O'Neil, Deceased, Claimant, v. The STATE of New York, Defendant.

Claim No. 51102.

Court of Claims of New York.

July 6, 1971.

[66 Misc.2d 937] Tenzer, Levine & Waxman, by Irving Waxman, Albany, for claimant.

Louis J. Lefkowitz, Atty. Gen., by William T. McCue, Asst. Atty. Gen., for the State.

DECISION

ROBERT J. MANGUM, Judge.

This claim to recover damages for wrongful death and conscious pain and suffering arises from the State's alleged negligence and malpractice in the diagnosis and treatment of decedent while she was a patient at Creedmoor State Hospital. Decedent was admitted to Creedmoor State Hospital on March 24, 1969 and died on March 28, 1969. At the time of her death, decedent left surviving a husband and two minor children. This claim was timely filed within ninety days of the appointment of the administrator of decedent's estate.

The claim has not been assigned or previously tried by any other Court or tribunal for audit or determination.

The trial was held in Courtroom 'D' on the 14th floor of the State Office Building, 270 Broadway in the City of New York, May 11, 1971.

Prior to decedent's admission to Creedmoor State Hospital she had been observed by her husband on the floor of their living room in a stuporous condition. No emergency treatment was rendered at that time and it was not until two days later that she was seen by her private physician. This doctor first met decedent when she was a patient at Creedmoor in 1964, though it was not until a subsequent admission in 1966 that he had occasion to treat her. In 1967 decedent became his private patient and he treated her approximately 38 times before her last admission to Creedmoor.

On the occasion of her last visit to her private physician, Saturday, March 22, 1969, the doctor diagnosed her condition as barbiturate poisoning caused by an overdose of Nembutal. He advised the husband to maintain decedent on her normal regimen of Nembutal, and further recommended she be admitted to Manhattan General Hospital for the purpose of withdrawal from acute barbiturate intoxication. On the morning of March 24th decedent and her husband set out for Manhattan General Hospital but, upon her insistence, went instead to Creedmoor.

During the decedent's long history of mental illness she was prescribed numerous drugs besides Nembutal to aid her overcome her somatic complaints. Her private physician testified that decedent built up a large tolerance to Nembutal which required the taking of larger quantities of the barbiturate in order to achieve the desired effect that small dosages had originally. On the occasion of her last visit to the doctor, he observed her speech slurred and general demeanor evidenced fainting, stupor and toxia, which were characteristic of the taking of large dosages of Nembutal and symptomatic of barbiturate poisoning.

Barbiturate withdrawal is considered more dangerous and debilitating than those symptoms experienced by and associated with heroin addiction. Abrupt withdrawal, following excessive use, often results in convulsions, stupor, and comatose state and death within 4 to 7 days as a result of cardiovascular collapse. (Goodman and Gilman, The Pharmacological Basis of Therapeutics, (3rd ed.) pp. 285--297.)

The uncontroverted expert medical testimony disclosed that the only procedure available for the proper withdrawal of a person addicted to barbiturates is to reduce the quantity being taken by 10 percent until the tolerance level is zero. The administering of drugs other than the precise barbiturate being consumed by the patient has no effect upon relieving the trauma concomitant with the withdrawal.

The State's only witness was the admitting physician who took the decedent's medical history at the time of admission. At that time the decedent denied epilepsy although the admitted to one convulsive episode four years previously, as well as another two months before the interview. Other complaints and symptomatology decedent revealed were fears of convulsions, somatic complaints, lack of concentration, impaired judgment and feelings of homicidal thoughts. She told the admitting physician 'I am afraid to go to convulsions, had them two months ago. I burnt my hands of coffee pot. I am very frightened. My stomach is in knots. I am taking Nembutal. (Emphasis ours.) I can't concentrate, get through with a simple sentence. I am scared of people, am staying in my house.' (Clmt's Exh. 6, p. 3) The admitting physician testified he made no inquiry into any aspect of decedent's dosage or duration of Nembutal use. Furthermore, though the medical records of decedent's previous hospitalization at Creedmoor were not immediately available to the time of this interview, there is no evidence the admitting physician made any attempt to read these documents at a later date.

The initial diagnosis by the State's expert witness determined 'Schizophrenia, schizo-affected type. Depressed.' (Clmt's Exh. 6, p. 3) A physical examination as well as bacteriological and urinalysis tests were ordered and no pathology was reported. Thorazine and Stelazine were prescribed. This medication was first given orally and then, as decedent's condition deteriorated, it was administered intravenously. An electroencephalograph was ordered on March 28th, after decedent had suffered a convulsive sezure and injured her head. The hospital record, however, suggests decedent expired before the test could be administered. The hospital record also noted a similar seizure on March 25th (Clmt's Exh. 6, p. 43) although no electroencephalograph was ordered at that time. It is apparent from the State's testimony and the Patient's Accident Report (Clmt's Exh. 6, p. 48) the decedent's physical malady was considered epileptic. The subscribing doctor to the Death Report attributed decedent's expiration to a cerebral vascular accident resulting from epilepsy. No autopsy was performed.

Although the State of New York is not an insurer of the safety of patients in its hospitals (Root v. State of New York, 180 Misc. 205, 40 N.Y.S.2d 576), this does not relieve them of the duty to exercise the requisite care and skill that is consonant with accepted medical procedure. It is universally accepted that the standard of care of a physician to a patient is to use such reasonable and ordinary care, skill and diligence as physicians in good standing in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases (DuBois v. Decker, 130 N.Y. 325, 29 N.E. 313; Schwenk v. State of New York, 205 Misc. 407, 129 N.Y.S.2d 92). The exercise of reasonable and ordinary care requires the physician to make a properly skillful and careful diagnosis of the ailments of a patient, and if he fails to bring to that diagnosis the proper degree of skill or care and makes an incorrect diagnosis, liability may attach (Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760). Where the wrong is not '* * * an honest error of professional judgment made by qualified and competent persons * * *' (St. George v. State of New York, 283 App.Div. 245, 248, 127 N.Y.S.2d 147, 150 aff'd 308 N.Y. 681, 124 N.E.2d 320), the State cannot seek refuge behind the veil that generally protects a doctor's medical judgment.

The Court finds, by the weight of the credible evidence, that decedent was suffering from barbiturate addiction at the time of her admission to Creedmoor on March 24, 1969. Therefore, using the criteria enunciated in the St. George case, supra, the Court must decide whether the State's diagnosis of epilepsy was an honest error of competent professional judgment. After carefully examining the totality of facts, not only is it patently clear the diagnosis was incorrect, but, furthermore the entire procedure pursued on March 24th was palpably improper and not in accord with sound professional practice.

The State's witness testified that no one informed him of decedent's drug addiction and that if he knew he would not have admitted her to Creedmoor. This is incredulous. Patients desirous of obtaining medical attention are not responsible for diagnosing their own ailments. They assist the doctor by describing their complaints and it is incumbent upon the trained and skilled physician to isolate the nature of the patient's illness within a reasonable degree of medical certainty. Certainly decedent is not guilty of contributory negligence because she told the doctor she was taking Nembutal but omitted to inform him she was addicted to the drug. Unfortunately, the admitting physician gave no credence to decedent's statement she was taking Nembutal.

Also, although the admitting physician did not recall having seen the decedent's husband on March 24th, the Court is persuaded the husband did accompany his wife to the doctor's office. At the conclusion of the ten minute examination, notwithstanding the doctor would not speak with him, the Court finds the husband left an empty Nembutal vial on the doctor's desk.

The Claimant's medical witness testified that the history compiled and symptoms described in the admitting report of March 24th, and heretofore enumerated, were connotative of barbiturate intoxication and withdrawal. The negligence, therefore, flows from the the omission to pursue the possibility of barbiturate addiction when confronted with the ample evidence that was available.

Further, it is of no import that Creedmoor is a hospital designed to handle mental patients as opposed to drug addicts. Given the nature of drug orientation in our society today, which was no less an enigma in 1969, it is apparent to this Court that many mentally disturbed persons over-indulge themselves with drugs in order to cope with their emotional problems. Certainly, given the reality and extent of the compulsive use of drugs in our society today, it is within the realm of sound medical...