Pulchin v. State, 31409

• Citation: 146 N.Y.S.2d 90,208 Misc. 1016
• Decision Date: 17 November 1955
• Docket Number: No. 31409,31409
• Parties: Jack PULCHIN, as Administrator of the goods, chattels and credits of Ruth Pulchin, deceased, Claimant, v. The STATE of New York, Defendant. (Claim) Court of Claims of New York
• Court: New York Court of Claims

Page 90

146 N.Y.S.2d 90

208 Misc. 1016

Jack PULCHIN, as Administrator of the goods, chattels and credits of Ruth Pulchin, deceased, Claimant, v. The STATE of New York, Defendant.

(Claim No. 31409.) Court of Claims of New York.

Nov. 17, 1955.

Aaron Honig, New York City, for claimant, by Leonard M. Lake, New York City, of counsel.

Jacob K. Javits, Atty. Gen., by Robert Schwartz, Asst. Atty. Gen., of counsel, for the State.

SYLVESTER, Judge.

The claim, as pleaded, is for wrongful death and for pain and suffering. No evidence having been adduced to establish the cause of action for pain and suffering, it was dismissed at the end of claimant's case.

The decedent, 26 years of age, was an inmate of Creedmoor State Hospital on March 12, 1952 when she was attacked by a fellow patient, one Mary Concilla, who bit the decedent on the left arm above the wrist. The decedent died on March 15, 1952, 3 days later. Concilla was known to have assaultive tendencies having established for herself a record of some 20 or more transactions of violence while at the institution. Of these, 9 were reported for the year 1947 and the remainder for the years 1951 and 1952. No assaults are reported as occurring during the years 1948, 1949 and 1950. Claimant, pointing to Concilla's history of assaults, as well as to the fact that Ward 9, where decedent and Concilla were housed, was a ward for disturbed patients, contends that the State was negligent in the care, custody, treatment and restraint of its patients; that it failed to employ adequate restraints upon the patient Concilla; that knowing of her dangerous propensities, she was left free to repeat her attacks; that the hospital was insufficiently staffed, making it more convenient to Concilla to commit her assaults without hindrance. It is also charged that the medical treatment of the deceased was improper; more specifically, that the institution's physicians failed to properly diagnose and treat the condition resulting from the injuries suffered by the decedent. Much of the testimony concerned itself with the cause of death since claimant attributes the death to Concilla's bite upon the forearm of decedent. It is maintained that as a result of the negligence of the State's physicians to treat her wound properly the decedent developed what is diagnosed as 'Sepsis' which is claimed to have caused her death. To be entitled to a recovery, it is incumbent upon claimant to establish the State's negligence in the care, maintenance and control of the institution as a proximate cause of the injury to the decedent. Briefly, having in mind the evidence adduced, it is claimant's burden to establish (1) that the ward was insufficiently attended in violation of reasonable standards of care in such matters so that the assault was thereby facilitated and (2) that the alleged 'Sepsis' resulting from the assault was the cause of death.

There is, however, an absence of evidence sufficient to sustain a finding that the State's physicians were negligent in the medical treatment of the deceased. The hospital physician, Dr. Herland, treated her wound and traced its normal progress toward recovery. There is other medical testimony which regarded the wound as superficial, expressing the opinion that the wound was running its natural course toward resolution and that the patient's fatality could not have been due to the bite wound. On the other hand, the certificate of death, signed by the medical examiner,...