Olivieri v. State
| Decision Date | 21 March 2022 |
| Docket Number | Claim No. 124849 |
| Citation | 74 Misc.3d 1232 (A),164 N.Y.S.3d 803 (Table) |
| Parties | Jorge OLIVIERI, Claimant, v. The STATE of New York, Defendant. |
| Court | New York Court of Claims |
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
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 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 McPherson4 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).
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 (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: 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.
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 title of Supervising Security Hospital Treatment Systems for nine years. He is head of security at Mid-Hudson. In November 2013 he was a Supervising SHTA. Claimant objected to the State's offer of Parker as an expert in the field of security at Mid-Hudson, citing Parker's lack of a college and advanced degrees in the fields of security or forensic psychology, his sole experience being on-the-job training by the State, and his current position as supervisor of Mid-Hudson. The Court sustained the objection. Parker was permitted to explain the protocols at the hospital as a fact witness (T: 63-72).
Parker testified to the following facts.
"A forensic psychiatric center is a facility that houses patients who are going through the court system, pending or deemed not fit to stand trial" (T: 77). Mid-Hudson is not a correctional facility, but it is a custodial setting. Determinations as to the level of restriction necessary for a patient are clinical determinations made by a psychiatrist (T: 80-81, 96). If a patient has been in a prior altercation, they put him on levels of supervision, such as two-to-one supervision. In a two-to-one supervision situation, their policy is to have staff be in "close proximity" to the patient (T: 89), and to have visual contact with the patient (T: 89-93). Manual restraint is used only for imminent danger, such as being assaultive with another patient (T: 94-95). Parker also testified that patients who are an imminent danger to themselves or others are given two-to-one supervision (T: 112).
A threat like the one made by J.D. that was referred to by Senior SHTA McPherson in the Incident Report would have been reported to a doctor (T: 108-109). If the staff is aware that a patient had made threats, they "would keep the patient separated" (T: 88). Close proximity to a patient making a threat means close enough to prevent the patient from carrying out the threat (T: 105). After viewing the video of the incident, Parker explained that the staff were in the typical location for staff in a two-to-one observation in the facility. If they had been sitting in front of the patient's door that would have been considered seclusion, which requires a...
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