Opinion
113869
06-17-2011
Edward Acerbo, Claimant(s) v. The State of New York, Defendant(s)
Claimant's attorney: PHILLIPS & MILLMAN, LLP By: Frank Phillips, Esq. Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Rachel Zaffrann, Assistant Attorney General
Ct Cl
Claimant's attorney: PHILLIPS & MILLMAN, LLP
By: Frank Phillips, Esq.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Rachel Zaffrann, Assistant Attorney General
Terry Jane Ruderman, J.
Claimant seeks damages for the injuries he sustained on February 23, 2006 while he was an inpatient at Rockland Psychiatric Center (Rockland) and attempted suicide by hiding in a bathroom and cutting himself with plastic knives he had obtained from the facility's dining room. Claimant contends that Rockland's failure to follow its own policy and procedure, which required that all utensils be accounted for in the facility's dining room, enabled him to obtain the knives he used to attempt suicide. He also maintains that Rockland did not provide him with sufficient psychiatric care while his treating psychiatrist, Dr. Abkari, was on vacation, and that Rockland failed to recognize and treat claimant's symptoms which indicated that his mental state was deteriorating.
The parties stipulated that claimant, who was an outpatient at Rockland at the commencement of this trial, was competent to testify and proceed with the prosecution of his claim.
Defendant argues that Rockland's policy and procedure regarding utensils was not applicable at the time of claimant's incident because the facility had stopped using silverware and was using plasticware, which was discarded. Defendant also maintains that claimant's suicide attempt was a spontaneous event that could not have been anticipated and that claimant received good and appropriate treatment and care. Defendant also asserts a counterclaim to recover the costs of claimant's care at Rockland. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Prior to this incident, claimant had a history of suicide attempts. In 1992, claimant cut his arms. Then, in 1996, he cut his wrists. He also intentionally overdosed on pills in 1996. Prior to his admission to the Frawley Psychiatric Unit at Good Samaritan Hospital (Good Samaritan), in July of 2005, claimant again attempted suicide while living at Bernstein House, a group residence. After hearing voices and thinking he would go to hell, claimant cut his neck with a knife and required 42 sutures (T:223).
References to the trial transcript are preceded by the letter "T."
In November 2005, claimant was admitted to Rockland from Good Samaritan. Claimant related that, prior to his attempted suicide in February 2006, he began having palpitations at night and was hearing voices. He feared that he was going to hell and began walking around with a cross and praying. His request to speak with a priest was granted. During this period, claimant was aware that discharge plans were being made for him; therefore he did not want to tell anyone at Rockland that he was suicidal. Claimant maintains that he told his treating psychiatrist, Dr. Abkari, about his discussion with the priest but claimant hid his thoughts of suicide from Abkari.
Claimant recounted the events of February 23, 2006. He and the other residents on his unit were accompanied by staff to the dining room. Patients received individual trays with their food and utensils. After finishing their meals, they were required to return the trays with all the utensils. Nonetheless, at lunch, and then again at dinner, claimant was able to secrete a knife, contrary to Rockland's policy and procedure of accounting for all the utensils in the dining room (T:42, 46-48). Claimant placed the knives in his pocket and then hid them in a drawer in his room. At approximately 8:00 p.m., claimant proceeded to the bathroom with the two knives he had taken from the dining room and cut himself in an attempted suicide (T:49).
Claimant's sister, Mary Dizzine, testified that her sister, her other brother, and their father were all involved in claimant's care. Dizzine attended three scheduled team meetings with Rockland staff, claimant, and other family members, to discuss claimant's treatment plan, medication and goals. For contact purposes, Dizzine was given Abkari's direct telephone number as well as the hospital unit's general number. Dizzine visited claimant once a week. She went alone taking turns with the other relatives. From November 2005 to January 2006, she noticed little change in claimant's condition.
On February 8, 2006, Dizzine attended a team meeting with her sister, Abkari, psychologist Eileen O'Brien, social worker Jean Hoffman, and claimant. They discussed discharge plans for claimant, which included moving him to a Partial Hospital Program on the grounds of Rockland and then to CLUE, a residential facility. After the February 8, 2006 meeting, Dizzine had a visit with claimant which disturbed Dizzine because claimant related that God was telling him to become a priest. This indicated to Dizzine that claimant was hallucinating because, prior to claimant's last suicide attempt, he had expressed similar religious ideas. Claimant was also very quiet and appeared gaunt. Dizzine was concerned and telephoned Abkari via her direct line and left two voice messages. The voice mail indicated that Abkari was away from her desk; Dizzine later learned that Abkari was on vacation in India. Dizzine's calls were not returned and, because Abkari had been her main contact, Dizzine did not try contacting anyone else at Rockland.
Dr. Shashikala Abkari, a board-certified psychiatrist, has been employed at Rockland since 1987 and has been assigned to the Admissions Unit for approximately eight years. Abkari was trained to assess suicide risks and make medical evaluations.
Upon admission to Rockland, claimant was evaluated by a triage doctor. Also, a social worker conducted a CORE evaluation to determine claimant's education, social skills, work skills, medical issues and prior mental health history (Ex. 10). When Abkari interviewed claimant, she determined that he did not present any risk factors for suicide and, therefore, he was placed under general observation, rather than one of the two heightened levels for suicide watch.
Abkari was aware that prior to claimant's admission to Rockland, he had attempted suicide numerous times and had used a knife to cut his neck, wrists and arms. Claimant's most recent suicide attempt, resulting in his stay at Good Samaritan was in July 2005, when he required 42 sutures after cutting his neck with a knife (T:223). Abkari also knew that the symptoms of claimant's last suicide involved delusions of feeling unsafe and hearing messages from God. In her view, claimant had acted impulsively in his 2005 attempted suicide.
Upon admission to Rockland, claimant denied hearing messages from God and any paranoid thinking. Nonetheless, Abkari's prognosis for claimant was guarded. She perceived a risk if claimant failed to take his medications. Claimant was housed in the Admissions Unit which comprised 24 to 30 patients who are covered by one of two psychiatrists and a treatment team. Each psychiatrist is assigned a nurse, a psychologist, a social worker and a rehabilitation therapist who work together in treating the patients. There are also five to six therapy aides assigned to the unit. While some patients have their use of knives restricted, claimant had no limitations imposed. The entire treatment team makes an assessment as to a patient's use of utensils.
Abkari testified that in February she altered claimant's medications by increasing his dosage of Seroquel, a psychotropic medication, beyond the recommended dosage. Abkari stated this was permissible because the facility was engaged in research. She made this change because at their February 3, 2006 session, claimant had begun to express ideas that he had a special connection to God. In addition, he exhibited greater anxiety and was upset about some past sexual behavior. He wanted to pray and asked to see a priest. Abkari thought claimant could be delusional, although claimant professed that he was not psychotic and was in control (Ex. 1).Abkari increased claimant's medication in an effort to prevent his decompensation.
Abkari did not tell claimant's family that she was traveling to India. She also testified that she was not required by hospital policy to either change her voice mail message to indicate that she was away or to leave a forwarding number (T:614-15). The other psychiatrist on the unit, Dr. Shiron, provided coverage in Abkari's absence and the rest of the treatment team remained available. During Abkari's absence, neither she nor anyone else retrieved her messages.
There was no discharge plan in place for claimant in mid-February, therefore, before Abkari left for vacation, she prepared a Court Disposition Form to support Rockland's retention of claimant. Abkari noted that claimant was admitted to Rockland with a "history of command hallucinations telling him to hurt himself and also in response to some religious ideas" (Ex. 5, p 45). Abkari indicated that claimant denied hallucinations, but requested more medications for his anxiety and was tolerating medications well. He approaches the staff when he is anxious and has requested medications on two occasions for panic anxiety. He requested to speak with a priest, but denies any religious ideas. Claimant is receiving individual therapy and also periodically sees the priest. Claimant's thoughts were well organized and goal directed at this time. Abkari also noted that claimant expressed that people will not understand his difficulties and that he has a special relationship with God (Ex. 5).
Abkari reviewed her Psychiatrist Progress Notes of her sessions with claimant from November 8, 2005 to February 1, 2006 (Exs. B-O). The "Target Symptoms (Current)" for monitoring and treating claimant through January 25, 2006 were: delusional, paranoid and religious thoughts, heard messages from God in the past, command hallucinations, occasional anxiety, history of suicidal attempts by cutting self, impulsive at times (Exs. B-N). Those progress notes state that, during that time, claimant denied having any hallucinations or suicidal and paranoid thoughts (id.). By contrast, Abkari's progress notes dated February 1, 2006 report that claimant expressed "some delusional thoughts" (Ex. O). The rest of the information remained the same as Abkari's previous Psychiatrist Progress Notes.
Abkari explained that the Target Symptoms represented the specific risk factors associated with claimant's suicidal tendencies. Abkari insisted that as of February 1, 2006, claimant's Target Symptoms were not displayed and he appeared mentally stable. Abkari did not consider claimant's talk of religion in February 2006 as decompensating, but rather as a means of seeking peace and comfort in God. Abkari explained that claimant's request to seek a priest related to some sexual behavior in the past. She did not view religion, per se, as a symptom of claimant contemplating suicide.
Abkari maintained that the assessment of claimant's mental stability should be considered in the totality. Even though in February 2006 claimant's medications were increased, he exhibited greater anxiety, requested to see a priest, spoke of a special relationship with God and in his previous suicide attempt he had heard messages from God, it was still Abkari's position that claimant was stable and complying with treatment. She further explained that the treatment team met daily to consider all the patients and met monthly regarding individual patients. Abkari acknowledged that progress is slow, yet noted that if treatment remains the same, then it indicates that a patient is responding. From November 2005 through January 2006, Abkari maintained that claimant did not show any signs of decompensating or that he was a suicide risk. He was eating and sleeping regularly and socializing with other patients. He was also making plans for the future, which is not consistent with contemplating suicide (Ex. G). In Abkari's view, claimant was learning coping skills.
Abkari prepared claimant's discharge summary regarding his course of treatment at Rockland and noted that on "February 23, 2006, [claimant] attempted suicide by cutting his neck with a plastic knife obtained from dining room in the evening shift" (Ex. 13).
Dr. Marc Tarle, a board-certified psychiatrist, licensed to practice in New York for 30 years, offered expert testimony on behalf of claimant. Tarle agreed that, upon admission, claimant was not acutely suicidal and it was appropriate not to place him on a suicide watch at that time. Claimant's behavior, however, changed by February 2006. According to Tarle, claimant had a history of delusional thinking and exhibited early warning signs that should have alerted Rockland to the subtle changes in claimant. Tarle further opined that claimant's suicide attempt reflected psychotic, rather than impulsive, behavior.
Tarle concluded that Rockland had rendered improper treatment to claimant in three significant respects. In Tarle's view, Rockland failed to: 1) provide a safe environment for claimant by allowing him to obtain the knives; 2) provide claimant's family with routine access to claimant's treating doctor; 3) respond to the behavioral changes exhibited by claimant in February 2006.
Tarle testified that a facility is responsible for keeping obvious lethal ways of killing oneself in check. He noted that Rockland's own Nursing Policy and Procedural manual mandates that:
"[n]ursing staff must ensure that the complete compliment of eating utensils (knife, spoon, fork, etc.) given to the patient is returned and placed in the special container located on top of the
food truck.
If a patient needs to use the bathroom during mealtime, staff must ensure that the patient does not enter into the bathroom with any eating utensils.
If any eating utensil is missing and can't be accounted for, the immediate area should be searched (i.e. garbage cans, bathrooms, etc.). If the missing utensil is not found, patients should then be given the opportunity to produce the missing item. In the event the item is not presented and staff have probable cause that a patient may have hidden the utensil on their person or in their property, the [Nurse Administrator I] must be contacted immediately before any search is conducted" [emphasis added].
(Ex. 14, p 3).
Tarle criticized Abkari for her handling of her vacation coverage. He testified that patients and family should have easy access to healthcare providers. Individuals, he explained, continue to contact a doctor in the same manner. Accordingly, when Abkari left for India, she should have changed her message to indicate that she was away and provided claimant a contact to call in her absence. Tarle, however, conceded that Abkari did not violate any specific rule at Rockland regarding her failure to leave a forwarding number on her voice mail (T:345).
Tarle also opined that defendant failed to follow through with claimant's care in February 2006. As set forth in the Nursing Policy and Procedure Manual, assessment of suicidal potential included observation of an "[i]ncrease in threatening visual or auditory hallucinations or delusions which direct the patient to harm self. Patients are particularly vulnerable to suicide due to misinterpretation of reality" (Ex. 8, p 2). Tarle noted that on February 3, 2006, claimant's dosage of Seroquel was increased above the manufacturer's recommendation. Seroquel is a medication dealing with delusions and hallucinations rather than simple anxiety. At the same time, claimant was referring to his "special relationship with God" (Ex. 1). According to Tarle, this should have prompted greater concern by Rockland due to claimant's history of cutting his throat due to hallucinations and religious delusions.
Tarle also compared the Court Disposition evaluation, dated February 16, 2006,with the earlier evaluations. He emphasized that the February report noted that claimant had requested to speak to a priest and claimed that "people will not understand his difficulties as he has special relationship with GOD" (Exs. 5, P). In Tarle's opinion, this indicated that something was happening and a further evaluation was necessary.
Tarle rejected the notion that claimant's suicide attempt was spontaneous (T:415). To the contrary, Tarle maintained that claimant's actions were planned based on delusional ideals. It was not a response to a particular event, such as an overreaction or an expressed disappointment. Rather, it was a deliberate course of action. Claimant chose the bathroom, a quiet place where he would not be observed, to execute his plan. Based upon a reasonable degree of medical certainty, Tarle concluded that Rockland had deviated from the reasonable standard of care and treatment of claimant.
Jonathan Brown testified that he has been a Mental Health Therapy Aide at Rockland since November 2004 and was assigned to the 3:00 p.m. to midnight shift on the Admissions Unit. His duties included monitoring patients in the public areas, helping patients with laundry and accompanying them to meals. Generally, Brown monitors patients to determine whether they are a danger to themselves or others. Brown talks with patients regularly so that he knows their personalities and can assess any changes. Although Brown was never formally trained to assess suicide tendencies, he maintained that he can evaluate overall behavioral changes. Brown testified that, prior to claimant's suicide attempt, Brown had observed claimant talking with others, playing cards and video games. During the week prior to February 23, 2006, Brown did not notice any changes in claimant's sleeping or eating habits.
Brown described the mealtime procedures at Rockland. Two therapy aides escort the patients to the dining room. Patients seat themselves at tables. Individual trays, with each patient's name, are stacked in a food truck. On each food tray there is an open plastic bag containing plastic utensils, a napkin, salt and pepper. Some patients were not permitted to use knives and therefore the contents of their plastic bag would be modified. A therapy aide announces a patient's name and the patient retrieves the tray. The staff, including a nurse, monitors the dining room, while the patients are eating.
After finishing a meal, the patient returns the tray to the therapy aide. The aide then checks all the plastic utensils before allowing the patient to place the tray on the truck. If all the plastic utensils are present, the tray is placed on the truck and taken to the kitchen where everything is "thrown away" (T:673). Brown testified that, following protocol and written procedure, if a utensil is missing, he makes an inquiry, looks around and inspects the garbage can (T:673-77). If the utensil is not found, the Nurse Administrator, who can call the doctor, is notified.When shown Rockland's written policy and procedure regarding utensils (Ex. 14), Brown noted that it had been revised "many times" before he had begun his employment (T:676). In fact, the document indicates that it was issued in 1989 and revised in 1996, 1997, 1998, 2001 and 2003. Brown testified that the reference to a "special container" was relevant when the hospital had used silverware and the utensils were separated into bins for cleaning and sterilizing (T:674-78). The current practice was to collect all plastic utensils, account for them, and then discard them in the kitchen (id.).
There were no longer "special containers" because the plastic utensils were discarded.
Dinner usually ends at 5:45 p.m., followed by free time on the unit. A census of the patients is taken at 6:30 p.m., and then every hour on the half hour, until 9:00 p.m. At 7:30 p.m., the nightly medications are distributed. On February 23, 2006, when claimant did not appear for his medications, Brown searched for him. After looking in the day rooms and hallways, Brown proceeded to the bathrooms. When he reached the third bathroom, Brown found claimant on the floor, surrounded by blood with a plastic knife next to him.
Mary Kutty Rajan testified that she is a registered nurse and was employed at Rockland from August 1988 until her retirement on February 24, 2010. From November 2005 to February 23, 2006, she held the position, Nurse II, and was in charge of the Admissions Unit during the 3:30 p.m. to midnight shifts. Her duties included receiving a report from the morning nurses, talking to new patients, supervising therapy aides, distributing medications, teaching patients about medications, observing patient's behavior and carrying out doctors' orders.
As the evening nurse, she accompanied the therapy aides in escorting the patients to the dining area and continued to monitor the patients during their meal. Rajan confirmed that the therapy aides are responsible for ensuring that the patients return all of their utensils. She was aware of the Nursing Policy and Procedure regarding the protocol for missing utensils (Ex. 14).
On February 20, 2006, Rajan recorded in her nurses' progress notes that claimant requested Seroquel. The medication had been prescribed PRN, as needed, by Abkari. Rajan further noted "fair effect," an indication that the drug was working (Ex. 1). This was the first time that claimant had requested Seroquel. Rajan was trained about the warning signs of suicide and testified that, during the week prior to claimant's suicide attempt, she did not observe any warning signs exhibited by claimant. She stated that she was surprised that he tried to commit suicide.
Kettly Paniague and Lorenzo Norfleet, therapy aides at Rockland, and Pamela Foster, a registered nurse at Rockland, testified that during the months prior to claimant's suicide attempt, he appeared to be doing well and did not exhibit any signs of being suicidal.
Eileen O'Brien testified that she was claimant's treating psychologist at Rockland from November 2005 to February 2006. O'Brien, who holds a Master's Degree in Clinical Psychology, had been employed as a psychologist in New York State facilities for 34 years, until her retirement in 2007. In her positions, she conducted individual and group therapy, made psychological evaluations, and trained staff to recognize signs and symptoms of suicidal ideations.
O'Brien read claimant's medical chart and was aware of his history before she began treating him. She described claimant as "a serious case," a young man who had a number of suicide attempts and suffered from fetal alcohol syndrome (T:924). Claimant was not a trusting patient and she had difficulty establishing a rapport with him. He was compliant with his medication, dressed neatly, was clean, had friends on the unit and had an interested family. O'Brien met weekly with claimant in 35 minute to one hour sessions. One of the purposes of their sessions was to help claimant identify what triggered his anxiety and to develop coping mechanisms.
Claimant never indicated to O'Brien that he heard messages from God and O'Brien was not aware of any change in the dosage of Seroquel prescribed to claimant. O'Brien described her February 23, 2006 session with claimant as ordinary. She did not observe any suicidal signs. There did not appear to have been any change in claimant's personality and claimant ended the session by saying, "see you next week" (T:933).
According to O'Brien, claimant wanted a girlfriend, an apartment and a job. This indicated to her that claimant was planning for his future. Claimant denied any intention of hurting himself and that he was hearing voices. Since claimant had a rough history and was anxious his entire life, anxiety was not necessarily a sign that claimant was contemplating suicide.
Dr. Anthony Sciarrone testified that, from November 2005 to February 2006, he was the other psychiatrist on Unit 204 at Rockland. The unit had two treatment teams, each handling approximately 15 patients. Each team had a leader and included a psychiatrist, psychologist, social worker and nurse. The teams made joint rounds in the morning. Sciarrone recalled that claimant socialized with another patient in Sciarrone's group.
When Abkari went on vacation in February 2006, Sciarrone was the covering psychiatrist. Abkari did not relate any special instructions about claimant before she left and she did not mention that claimant's Seroquel dosage had been increased. According to Sciarrone, it was the responsibility of the treatment team to advise family that there would be a covering doctor for a particular period and it was not part of the hospital's protocol for one physician to retrieve another's phone messages.
Dr. L. Mark Russakoff offered expert testimony on behalf of defendant. After completing his residency in psychiatry at Yale-New Haven Hospital, his entire career has been in the field of psychiatry. Russakoff has been the Director of Psychiatry at Phelps Memorial Hospital Center in Tarrytown, New York since 1994.
Russakoff testified that suicide contemplation is not a diagnosis in itself. Many suicide patients are also depressed and some are psychotic. Therefore, treatment requires an assessment of imminent risk and what safety measures are necessary. Classic red flags include: 1) announcing intentions to commit suicide; 2) giving away valuables; 3) a severe exacerbation of a psychotic illness, hearing harsh condemning voices, command auditory hallucinations; 4) a depressed person experiencing no pleasure. Additionally, the doctors determined that claimant's individual target symptoms included command hallucinations, paranoid thoughts and religious ideas.
Russakoff was asked to review the Psychiatrists' Progress Notes for claimant's stay at Rockland (Ex. B). Russakoff concluded that the ongoing care administered to claimant was appropriate. The medications prescribed were monitored and adjusted. Claimant appeared to be tolerating them well. When asked why claimant's dosage of Seroquel was increased in February, Russakoff initially responded that he could not tell. Then he later suggested that it was due to claimant's anxiety regarding his impending discharge, which was not uncommon.
Russakoff interpreted claimant's request for additional Seroquel as evidence that he had insight into his situation and felt comfortable going to staff. Russakoff downplayed the significance of prescribing a dosage of a medication above the manufacturer's recommended dosage. He explained that drug companies are motivated to find the minimally effective dosage for approval and that it is still proper treatment for a doctor to prescribe over that amount.
Russakoff reviewed claimant's Inpatient Progress Notes which included entries made by Abkari on February 3, 7 and 14, 2006. While the Psychiatrist Progress Note of February 1, 2006 indicates for the first time "some delusional thoughts expressed" (Ex. O), Russakoff opined that there was no evidence of suicidal thoughts documented. Russakoff interpreted the references to religion as concerns of claimant, rather than delusional thoughts. Dr. Abkari's February 3 entry that "claimant stated he had a special relationship with God" (Ex. 1), did not indicate to Russakoff that claimant was suicidal because claimant's condition was different from his condition preceding his last suicide attempt. At that time, claimant was in a fearful, agitated state and was not compliant with his medications.
Russakoff was questioned whether the court document requesting a further one year retention of claimant at Rockland (Ex. 5) was consistent with discharge planning. Russakoff concluded that since the discharge planning was not fully in place, Rockland's analysis was trying to protect the patient. There was nothing in the document that suggested an imminent risk that claimant would attempt to commit suicide. Russakoff concluded that there was no indication that claimant would attempt suicide again on February 23, 2006.
Even though claimant had used a knife in a previous suicide attempt, Russakoff testified that this fact alone did not warrant prohibiting claimant from using a plastic knife at Rockland. Russakoff explained that, as a practical matter, patients must be prepared for life outside the facility and it is not reasonable to restrict the use of plastic knives (T:1167-68). Russakoff conceded that Rockland had a safety policy concerning utensils.
When questioned extensively whether it was reasonable for Abkari to leave for vacation without advising claimant's family, Russakoff explained that a doctor's responsibility is to a patient and not the family (T:1170). Family members generally interact through social workers and can also contact nurses and other staff (T:1171). At Rockland, there is also a Family Support Coordinator (Ex. 19). Russakoff also testified that a covering psychiatrist would not be expected to retrieve the messages of a vacationing physician.
Analysis
It is undisputed that Rockland's own written policy and procedure explicitly requires that its staff "must ensure that the complete compl[e]ment of eating utensils (knife, spoon, fork, etc.) given to the patient is returned [emphasis added]" after each meal (Ex. 14). Additionally, the staff "must ensure that the patient does not enter into the bathroom with any eating utensils [emphasis added]" (id.). Rockland's policy and procedure further addresses the potential circumstances that "a patient may have hidden the utensil on their person or in their property" and provides for conducting a search of the immediate area and possibly the patient.The issuance of this policy and procedure evidences Rockland's awareness that there is a danger posed by unaccounted for utensils because a patient may hide a utensil and then proceed into the bathroom. The potential danger posed by a psychiatric patient alone in a bathroom with a utensil is that the patient may self inflict wounds.
Rockland's failure to abide by its own policy and procedure is some evidence of negligence (see Haber v Cross County Hosp., 37 NY2d 888, 889 [hospital's failure to abide by its own rules is some evidence of negligence]; Alexander v American Med. Response, 68 AD3d 1026; Kadyszewski v Ellis Hosp. Assn., 192 AD2d 765, 766). Moreover, in this matter, Rockland was well aware of claimant's history of suicide attempts, his use of knives to cut his arms and wrists, and his most recent suicide attempt in 2005 when he slit his own throat with a knife and required 42 sutures. Thus, in addition to Rockland's failure to abide by its own policy and procedure, it is fundamental that "[t]he risk reasonably to be perceived defines the duty to be obeyed" (Palsgraf v Long Is. R.R. Co., 248 NY 339, 344; see also PJI 2:12). Indeed, due to Rockland's negligence, the foreseeable risk to be guarded against, that a patient may hide a utensil and then proceed to the bathroom with it and self inflict wounds, was the very harm which occurred (see Lichtenstein v Montefiore Hosp. & Med. Ctr., 56 AD2d 281, 285 [proximate cause for patient's suicide could be found if hospital was negligent and patient suffered very harm foreseen and to be guarded against]). Upon review of all the evidence, the Court finds that Rockland was negligent in allowing claimant to leave the dining room on two separate occasions with a knife hidden in his pocket and that this negligence was a substantial contributing cause in enabling claimant to attempt suicide.
Rockland's violation of its own policy and procedure was tantamount to placing the knives in claimant's hands, the hands of a patient struggling with a history of suicide attempts with the use of knives, and giving claimant license to inflict potentially fatal injuries (see Wright v State of New York, 31 AD2d 421 [no need for expert medical testimony to establish State's negligence where hospital allowed mentally ill, suicidal patient to remain alone in a room with an open, unscreened window after patient had threatened to jump and then did]). Under these particular circumstances, the Court finds that the State must bear 100 percent of the liability in causing this event (see Lawrence v State of New York, 44 Misc 2d 756 [State was found negligent in placing suicidal patient in a room without protective gates or bars on window and without adequate supervision; this negligence was a proximate cause of patient's eventual death due to injuries suffered from his jump out of the window]). It was not argued by the State, nor was there any evidence to establish, that claimant should bear any portion of fault (see Lawrence v State of New York, 44 Misc 2d 756, supra at 760 [psychiatric patient who jumped from window in suicide attempt was not proved to be contributorily negligent]).
The Court rejects the argument that Rockland's written policy and procedure regarding utensils (Ex. 14) was not applicable at the time of claimant's suicide attempt in 2006 because the policy and procedure related to silverware and Rockland was using plasticware at that time. First, Rockland's own employees testified to their dining room practices which were consistent with the written policy and procedure (id.). Second, defendant failed to establish when Rockland stopped using silverware and began using plasticware. Third, the change in the type of utensils did not change the acknowledged danger posed by a missing utensil. Fourth, the policy and procedure was revised five times since it issuance in 1989 with the last revision in 2003; thus Rockland had the opportunity to address the change from silverware to plastic and did not. Finally, if any part of the policy and procedure appears to be superfluous with Rockland's use of plastic utensils, it would be only that which refers to the placement of utensils in a special container, which was used for cleaning the silverware, whereas the plastic utensils were discarded after they were accounted for and taken to the kitchen. The Court also rejects the argument that claimant may have obtained the knives due to an extra knife placed in his packet or in the packet of another patient. These arguments are specious and, in any event, could also lead to a finding of negligence attributable to Rockland.
Claimant also argues that the State should be held liable on the basis that it failed to provide claimant with appropriate treatment during the absence of claimant's treating psychiatrist. It is well established that psychiatrists, or the State that employs them, may not be held liable for errors in professional judgment (see Schrempf v State of New York, 66 NY2d 289; Fotinas v Westchester County Med. Ctr., 300 AD2d 437). Where a professional treatment decision has been made, an expert's opinion that an alternative treatment should have been followed is insufficient to establish a prima facie case of malpractice (see Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682). Here, while the Court is mindful that claimant attempted suicide while under defendant's care, the evidence was insufficient to establish that claimant's condition or suicide attempt was due to inadequate or inappropriate care and treatment rendered at Rockland (see Wilson v State of New York, 112 AD2d 366 [State not liable for patient's attempted suicide after treatment team determined that he was no longer suicidal]). "If a liability were imposed on the physician or the State each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitation of a vast number of patients would be impeded and frustrated" (Durney v Terk, 42 AD3d 335, quoting Centeno v City of New York, 48 AD2d 812, 813, affd 40 NY2d 932).
Contrary to claimant's argument that Rockland was negligent in its failure to provide proper coverage during the absence of claimant's treating psychiatrist, Dr. Abkari, the Court finds that Rockland did provide claimant with a covering psychiatrist and that claimant's treatment team of nurses, a psychologist, therapy aides and a social worker, remained available to claimant. Claimant's treating psychiatrist was not required by any hospital rule or protocol to indicate on her voice mail that she was on vacation or to leave a forwarding number and claimant failed to prove that the absence of such information was negligent or in any way caused or contributed to his decline. It is further noted that during the absence of claimant's treating doctor, claimant's family had access to claimant's treatment team and could have contacted someone else at Rockland after the attempts to contact Abkari were unsuccessful. Upon review of all the evidence, including the testimony of the experts, the Court finds that claimant has failed to meet his burden of showing that there was a breach of the duty of good and accepted practices in the area of psychiatric care and that this breach was a cause of claimant's attempted suicide (Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682, supra [hospital not liable for decedent's suicide while on psychiatric ward]).
Defendant's Counterclaim
Generally, the State may recover its costs of care which were not covered by Medicare and were unrelated to its wrong (Mental Hygiene Law §§43.03[a], 43.07; see State of New York v Patricia II, 6 NY3d 160 [the plain language of Article 43 of the Mental Hygiene Law provides that a patient remains liable to the State for services rendered and that the State may commence suit to recover those fees]; Matter of Carlon v Regan, 63 NY2d 1011 [personal injury award in the Court of Claims was not intended to be free and clear from claims by the State for services rendered to claimant unrelated to the State's wrong]; Genao v State of New York, 178 Misc 2d 512 [medical proof that the rape of defendant's patient aggravated or exacerbated her preexisting mental condition reduced the amount recoverable by defendant on its counterclaim, for the costs of services rendered to its patient which were related to defendant's wrong/negligent supervision]). Here, however, while the State asserted a counterclaim for the costs of care rendered to claimant at Rockland from November 1, 2005 through February 22, 2006 and from December 19, 2006 through August 8, 2007 (the date of defendant's Amended Answer and counterclaim), at trial there was a complete absence of proof to support defendant's counterclaim and therefore the counterclaim is DISMISSED.
Conclusion
In sum, the Court finds the State to be 100 percent liable, on a theory of negligence, for claimant's suicide attempt. Claimant did not prevail on its other theories of liability and those causes of action are DISMISSED along with the State's counterclaim. The matter will be set down for a trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.