Olivieri v. State, 2022-50273

CourtNew York Court of Claims
Writing for the CourtWALTER RIVERA JUDGE
PartiesJorge Olivieri, Claimant, v. The State of New York, Defendant.
Docket Number2022-50273
Decision Date21 March 2022

Jorge Olivieri, Claimant,
v.

The State of New York, Defendant.

No. 2022-50273

Court of Claims

March 21, 2022


Unpublished Opinion

For Claimant: CONSTANTINIDIS & ASSOCIATES, P.C. By: Steven T. Lane, Esq.

For Defendant: LETITIA JAMES Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General

DECISION

WALTER RIVERA JUDGE

The trial of this claim on liability only was heard on October 5, 2021 via video-conferencing technology. [1] The instant claim alleges negligence and improper supervision due to an unprovoked assault on claimant by another patient at Mid-Hudson Forensic Psychiatric Center on November 16, 2013. Claimant testified on his own behalf and presented the testimony of Martin Vazquez. Claimant's Exhibit 2 and defendant's Exhibits C through F were received into evidence on stipulation. Defendant presented the testimony of James Parker. The executed virtual trial stipulation was received into evidence as Court's Exhibit 1.

Claimant's Case

Testimony

Claimant testified to the following facts.

On November 16, 2013, he was a patient at Mid-Hudson Forensic Psychiatric Center (Mid-Hudson). The hospital was a custodial setting and patients were required to be in the dayroom at various times of the day (T: 12-13). [2] To get to the dayroom, patients had to walk in a hallway about six to eight feet wide. At about 4:00 p.m. or 5:00 p.m. on the day in question, claimant was walking to the dayroom and had to pass between two staff members seated on the left side of the hallway. Across the hall on the right, there was an open door to a room in which there was a patient (identified herein as "J.D."). Claimant had been back and forth to the dayroom that day (T: 14-16). As claimant walked by the open door on the right, there was nothing between claimant and J.D., who suddenly emerged from the room and struck claimant. The staff pulled claimant away to the dayroom, then to the nurse's station (T: 16-19).

Claimant was not previously acquainted with the patient who hit him. Claimant had not been told by staff that J.D. had threatened to kill somebody or was dangerous (T: 20-21). On cross-examination, claimant testified that he had not seen J.D. before being hit by him (T: 21).

Martin Vazquez testified to the following facts.

Vazquez works as a Security Hospital Treatment Assistant (SHTA) at Mid-Hudson. He held the same position at Mid-Hudson in November of 2013 (T: 24-25). The patients' dorm is separate from the dayroom, and in between them there is a quiet room and a single-man room (T: 29). On November 16, 2013, Vazquez was assigned to a two-to-one observation of J.D. due to the latter's prior assault against somebody at the facility. [3] Two-to-one observation means there are two SHTAs with one patient (T: 26-28). Vazquez remembered the name Jorge Olivieri (claimant herein) "because [Vazquez] was traumatized about how much blood [Olivieri] spewed on the day he was assaulted" (T: 26). Vazquez recalled standing behind J.D. when he saw the latter assault claimant. Referring to J.D., Vazquez testified, "I wouldn't want him walking behind me" (T: 31).

At the time, Vazquez was not aware that J.D. had threatened to punch anyone who walked by his door (T: 31-33). On reviewing the narrative in the incident report (Ex. 2), Vazquez acknowledged writing that J.D. told him, "my right cross is dangerous and I'm going to body one of these [expletive deleted] unless you send me back to Riker's" (T: 35). The words "kill body bag" are noted above the word "body." Vazquez claimed that J.D. made the statement after and not before the incident, in order "to clarify why he did it" (id.). Vazquez was questioned about another statement referred to in the investigative findings section of the report prepared by Senior SHTA McPherson [4] that "[p]atient [J.D.] had made threats to hit anybody passing the doorway" (Ex. 2, ¶ 16). Vazquez reiterated that the statement he referred to in the report was made by J.D. after the incident, but he did not know what, if anything, J.D. had said previously to McPherson or other staff members (T: 37-39).

Vazquez was questioned about a video of the incident admitted as Exhibit C. He acknowledged the video shows that just prior to the incident, J.D. was in his room and Vazquez was seated on a chair across the hallway. Other patients and staff walking down the hallway passed between the door to J.D.'s room and where Vazquez was seated along with another SHTA. Vazquez judged the distance between him and the door to J.D.'s room as being an arm's length plus twelve inches, which is the custom (T: 40-45). He explained that he could not have a door between himself and the patient as "[t]hat would be seclusion" (T: 46), and he was not sitting across the hallway nearer to J.D. because "we don't have patients behind our backs" (T: 47). Notably, Vazquez admitted that from where he was seated, he "could not prevent any assault" (T: 48).

Vazquez was asked about the terminology "the least restrictive confinement." He understood it to mean giving a patient "enough room so he doesn't feel secluded" (T: 51), which is what he was trying to accomplish with J.D. on November 16, 2013. Only a doctor can place a patient in seclusion (T: 55-56). Vazquez explained that seclusion means there is a locked door and, during his 20 years of experience, seclusion was not used (T: 56-57). Vazquez believed that J.D. was placed in the room where he was the day of the incident because it was a single-man room and the least restrictive way to restrict a patient without a locked door. There were no other single-man rooms (T: 59-61).

Exhibits

The Incident Report (Ex. 2) contains a narrative description by SHTA Vazquez and initial investigative findings by Senior SHTA McPherson. The narrative description written by Vazquez on the day of the incident provides, in pertinent part:

"Patient [J.D.] who was on a 2:1 observation was at the doorway of his room [and] suddenly [and] without provication [sic] violently assaulted his peer []Olivieri who was walking past his doorway to get to the dayroom. 2:1 staff immediately intervened [and] a manual restraint as this patient was continuing to pummel his peer with great force. Patient stated "my right cross is dangerous and I'm going to body (kill body bag) [5] one of these [expletive deleted] unless you send me back to jail (Rikers Island) Patient [J.D.] suffered no injuries @ this time. Patient OLIVIERI suffered a huge laceration to the right side of his face" (Ex. 2, ¶ 15)

In a "witness statement" attached to the Incident Report, Vazquez states that the second staff member monitoring J.D. with him on November 16, 2013 was SHTA McManus. Vazquez also wrote in his statement that J.D. was in the doorway to his room and that "both staff and patients have to pass his doorway," and "patient Olivieri [claimant herein] had to move pass between both 2:1 staff and patient [J.D.] to get to the dayroom."

The initial investigative findings made by McPherson on the day of the incident (id. at 16) provide, in pertinent part: "Pt [J.D.] had made threats to hit 'anybody that passes my door. I want to go back to jail.' Pt [J.D.] punched pt Olivieri in the jaw." These findings appear in the section captioned "Probable Cause and Contributing Factors" (id.). The observation level ordered for J.D. was noted on the report as being "2:1 - two staff in proximity to patient" (id. at 31).

Claimant rested his case.

The State moved to dismiss the claim for failure to prove a prima facie case. Claimant opposed the motion. The Court reserved decision on the motion.

Defendant's Case

Witnesses

James Parker testified that he has been employed by the New York State Department of Mental Health for thirty-five years and he has held the job...

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