Opinion
# 2016-029-023 Claim No. 120804
03-30-2016
DARNELL CLAPP v. THE STATE OF NEW YORK
BIRBROWER & BELDOCK, P.C. By: FELDMAN, KLEIDMAN, COFFEY, SAPPE & REGENBAUM LLP By: David R. Zagon, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Dian Kerr McCullough, Assistant Attorney General
Synopsis
After a trial on liability, the court found defendant State of New York 100% liable for negligence in failing to protect patient at Rockland Psychiatric Center from unprovoked attack by another patient recently transferred involuntarily from Central New York Psychiatric Center. Claimant proved, by a preponderance of the evidence, that defendant knew or should have known that the recently transferred patient, who was diagnosed with Schizophrenia, was extremely dangerous and unpredictable and presented a risk of spontaneous and unprovoked violence and defendant failed to take sufficient precautionary measures indicated by the risk posed.
Case information
| UID: | 2016-029-023 |
| Claimant(s): | DARNELL CLAPP |
| Claimant short name: | CLAPP |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120804 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | BIRBROWER & BELDOCK, P.C. By: FELDMAN, KLEIDMAN, COFFEY, SAPPE & REGENBAUM LLP By: David R. Zagon, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Dian Kerr McCullough, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 30, 2016 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim for negligence and medical malpractice arose from an incident at the Rockland Psychiatric Center ("Rockland") on September 16, 2010. Claimant, who was a patient, was waiting in line near the dining room exit after breakfast when another patient named Curtis Wilson ("Wilson") suddenly and without provocation punched him. A bifurcated trial on liability was held on December 8 through 10, 2015.
Claimant's Exhibits 1 through 8, and defendant's Exhibits A and B, were admitted on stipulation (Trial Transcript ["TT"]: 11). Claimant's Exhibit 1 is a copy of the report by the Bureau of Safety and Security Services about the incident, the emergency room evaluation, and related documents. Exhibits 2 through 8 are copies of policies and procedures contained in the Rockland Psychiatric Center Policy and Procedure Manual. A transcript of Wilson's deposition was admitted as Exhibit 28, and a redacted treatment plan for Wilson was admitted as pages 001-004 of Exhibit B.
Defendant's Exhibits A and B are heavily redacted copies of Curtis Wilson's psychiatric records produced by Rockland pursuant to the court's (Ruderman, J.) orders filed June 13, 2013, and May 5, 2015. The parties' attorneys had stipulated to an in camera review of the records by the court "for the purpose of enabling the court to determine which portion(s), if any, of those records show that Curtis Wilson had dangerous propensities and whether such portion(s) of said records are discoverable" (December 7, 2012 stipulation).
On September 16, 2010, at approximately 7:45 a.m., as patients lined up to exit the dining area at Rockland, claimant was behind Wilson, who suddenly punched claimant in the eye without provocation, knocking him down and fracturing his orbital bone (Progress Notes, Exh. B: 28 [bates stamp number]; Exh 1: 6 [Emergency Room Evaluation] and 8 [supporting deposition to charge of assault]). Claimant was hit a few times (Clapp, TT: 682-684). Wilson and claimant had not met before that point (TT: 676). There were approximately twenty to thirty patients, a nurse and two male employees in the dining area for breakfast (Panacherry, TT: 473-477). The room was "tight" (Clapp, TT: 681). The therapy aide Augustin Torchon ("Torchon") and a second aide had been handing out trays (Clapp, TT: 675-686; Torchon, TT: 224-258). After the assault Wilson was escorted back to the unit, given 50 mg Thorazine "stat," and placed on "Medication Restraint" (Exh A: 533; Exh B: 28). He testified at his deposition that he was frustrated with his continued confinement, he did not know claimant and became paranoid claimant was going to hit him (Exh 28: 8-14).
Notes in Wilson's chart made by Nurse Diane DeBoer at 7:55 a.m. describe her observations of Wilson right after the incident: "Lying on his bed. Fists are clenched and affect angry. States he is frustrated about not being discharged" (Exh A: 536). The next note, made at 8:10 a.m. observes, "Stated he [Wilson] is still upset over no discharge" (Exh A: 536). Another note at 3:00 p.m. observes, "Stated he was upset because he has been here too long and wants a discharge. Pt. had an interview for possible discharge at Middletown TR on 9/15/10" (Exh A: 532). Wilson had been to an interview on September 15, 2010 about being discharged to a supervised residence, but had not yet heard the results when he assaulted claimant. It can sometimes take a few weeks for Rockland to receive the interview results (Kurian, TT: 403-406, 415-424).
Claimant had been transferred to Rockland the day before from New York Presbyterian's Psychiatry Unit in Westchester, where he sought help voluntarily a few months earlier for a psychotic episode. At Rockland he was placed in Unit 206, the admissions unit where Wilson was assigned (TT: 669-673). Wilson had been placed in the Admission Unit two and a half months earlier on June 29, 2010. Nurse Roger Etienne testified that the "only reason" a patient would be kept in the admissions unit for two and a half months was a refusal to take medication (TT: 30). He later testified that Wilson could have stayed because he was waiting to be discharged and a facility had not yet been found for him (TT: 79-81). In fact, Dr. Denis Drubetskiy ["Drubetskiy"] sought an extension of Wilson's involuntary admission after the initial court-ordered 60-day admission had expired (Exh A: 134-135).
He had been diagnosed in 2005 with schizoaffective disorder and major depression (TT:667-668).
Wilson, a 51-year-old homeless man, had been involuntarily transferred to Rockland from Central New York Psychiatric Center ("Central") on expiration of his 15-year sentence of imprisonment. Central is a psychiatric facility for mentally disturbed inmates, and Rockland is a civil facility (Exh B: 003). Wilson suffered from paranoid schizophrenia and had a long history of mental illness and violence. Between 1983 and 1995, he was hospitalized five times for delusion, paranoid aggressive behavior and responding to auditory hallucinations (Exh A: 134, 215). He was convicted of first degree burglary for entering a residence in 1995 and raping and assaulting a woman at knife point. He served the maximum of his 5-15 year sentence. During his incarceration, Wilson was admitted to Central nine times for aggressive, assaultive, paranoid behavior, agitation and refusing medication (id. at 116-135). His ninth admission on December 1, 2009 resulted from his setting fire to his bed sheets, and a spontaneous assault on another inmate in the "ICP," a mental health treatment unit for "inmates who are unable to function in general population because of their mental illness" (7 NYCRR, Part 320, Exh A: 117, 327, 515). At Central, Wilson's Psychiatric Evaluation Part 1 noted that he did not know why he had been sent there, and his explanation for the assault and fire was that "he had asked for a transfer, but he had been denied. He felt irritable and ended up in a fight" (id. at 315-16).
After his admission to Central, Wilson refused to take medication, and assaulted other patients without provocation, resulting in his being placed in a 5-point restraint and on constant observation (id. at 117, 394-5). On January 28, 2010, Wilson was court-ordered to receive medication over objection, and the order ("River Order") was good for 12 months at any facility under OMH (id. at 117-119).
After the River Order was issued and Wilson was receiving medication (Risperdal and Cogentin), he became more compliant. However, the records show that on at least six occasions, the Central staff had to administer supplemental "stat" medication to Wilson after he became anxious, agitated, aggressive and paranoid. Wilson also put himself, or was put, into a separate room until he became calmer (id. at 422). Wilson's June 28, 2010 Discharge Summary from Central summarizes these events, noting, inter alia, that: on March 17, 2010, Wilson "appeared anxious and paranoid when a new patient was introduced onto the ward" (id. at 422); and on April 26, 2010, a few days before his transfer to the Pre-Release Ward, Wilson "reported he was agitated and if he was not able to have immediate use of the side room he would break something. He was escorted to the side room and STAT oral medications were administered to him. He was placed on Constant Observation due to his unpredictability" (id.). Even post-transfer to the discharge ward, at Central, although he "had not presented with any management or behavioral issues," he continued to feel paranoid and that others were after him, and he retained "chronic risk factors" (id. at 423).
The body of the section in the discharge summary titled "Warning Signs" has been redacted. --------
The same day as the Discharge Summary, and the day Wilson's sentence expired, physicians at Central executed certifications to support an application for Wilson's involuntary admission to a civil facility (Rockland) (id. at 117-121). Dr. Minhaj Siddiqi, M.D. certified, inter alia, that, "as a result of his or her mental illness, this person poses a substantial threat of harm to self or others" (id. at 121, 481). Dr. Sarah Nelson stated in her certification that: Wilson had a prior Rivers Order in 2002; he was then medicated while hospitalized; and after the January 28, 2010 Rivers Order took effect, and he started taking oral Risperdal and Consta injections regularly,"his behavior settled but clinicians continued to note negative symptoms of schizophrenia" (id. at 119).
On his admission, Wilson was assessed by Rockland staff, and a treatment plan was developed. The clinical risk assessment policy at Rockland is a 2-stage process designed "[t]o assess behavioral patterns in patients who are at high risk for dangerousness to self and other[s]" (Exh 6). The first stage is a "broad screening" "to identify those individuals at risk early in the admissions process" (id., and Manual § 11.30.28 [referred to but not submitted as exhibit]). The second stage is to determine a high risk patient's triggers for violent behavior, and it must be completed by the treating physician within 72 hours of a patient's designation as high risk. There are forms to be filled out in conducting the assessments (Exhs 7-8). These forms are not included in Wilson's records (Dr. Drubetskiy, TT: 137, 161-163).
A screening/admission note and a psychiatric evaluation were prepared by Dr. Inderpal Bhathal the day of Wilson's admission to Rockland (Exh A: 001-0010). The first section of the Note required the physician to specify, inter alia, "risk factors including danger to self/others," the "degree of risk and targets" (id. at 001-002). Paragraph numbered 1 in this section is redacted. The only other paragraph provides, "The patient was court ordered to receive medication at [Central] on 1/28/10" (id.). That Wilson had "a history of violent behavior" was noted, but risk factors and the degree of risk are not noted (id.).
Dr. Drubetskiy, Wilson's treating psychiatrist at Rockland, could not recall the specifics of Rockland's assessment policies, or whether they were followed for Wilson. The doctor agreed that based on Wilson's history of violence he should have been designated as high risk, and all of the prior records should have been reviewed in order to complete the form required for the second stage of the assessment. His policy was to review only the most recent records. If they did not show violence, he would then review prior records. He did not review "the nursing note" (TT: 140-141, 147-149, 153-160). According to Dr. Drubetskiy, the majority of patients at Rockland had a similar profile to Wilson's. He agreed that they would be considered high risk, and testified that they were all dangerous. He also agreed that based on the records, triggers for Wilson's violence would have included his being refused a transfer, and introduction of a new patient into the ward. The triggers identified by the doctor in his "note" were active substance use and medication noncompliance (TT:165-173; Exh A: 317, 422).
On cross-examination, Dr. Drubetskiy explained that: Wilson saw a lot of new people, so it was a particular new person who might have been a trigger; anything can be a trigger, so they looked for "red flag[s]" like agitation or aggression, which he does not recall seeing in Wilson, or anyone reporting while he was at Rockland; Wilson's medication remained the same as when he arrived, and did not change; he did not improve while he was at Rockland; he remained medication compliant; he did not need a medication adjustment for any "behavioral manifestation of his mental illness" (TT: 185); and the doctor did not consider separating Wilson from other patients (TT:174-198). On redirect examination, the doctor pointed out that even if frustration with not being discharged was a trigger, and should have been listed on admission, Wilson did not exhibit agitation or aggression (TT: 202-215).
The therapy aide Torchon, Wilson's social worker John Kurian, and Nurses Diane Deboer and Roger Etienne, testified similarly to Dr. Drubetskiy - that Wilson had not been violent or caused a problem at Rockland (TT:73-94; 231; 391-417; 451-453). He was not privy to Wilson's records, but he testified that Wilson was not classified as high risk, and neither were any of the other patients in the unit (TT: 407-410). An August 10, 2010 document prepared by Dr. Drubetskiy, to obtain a court order continuing Wilson's involuntary stay, shows that Wilson did cause problems at Rockland (Exh A: 540-541). Dr. Drubetskiy notes that,
After 2 weeks of going to the groups patient became more withdrawn spending most of the time standing outside his room and refusing to go to groups or other modalities on the unit. It was explained to him that for [successful] discharge we would like to see him at least make an effort to attend groups and meetings. Overall he has not been [violent], but at times he refused medical and clinic appointments.
(Exh A: 540).
Nurse Etienne testified that if a patient was violent, or argued with another patient, they did not let him eat in the dining room, but brought him a tray in the unit and a staff member stayed with him. If Etienne perceived he could be violent, a staff member went with and sat with the patient during the meal, then escorted him back to the unit. This did not happen with Wilson (TT: 101-104).
Treatment and Goal Plans were prepared for Wilson at Rockland (Exh B). In the plan dated July 6, 2010, the "[f]ocus of treatment" for Goal # 1 is "[t]o reduce Mr. Wilson's psychotic symptoms of internal stimulation, paranoid and delusional thinking" (id. at 005). Nurse Deboer acknowledged that no triggers were identified in Wilson's treatment plan, although they should have been (TT: 443-445). In the plan following Wilson assaulting claimant, the "[f]ocus of treatment" for Goal # 1 is "[t]o reduce Mr. Wilson's paranoid thoughts that trigger violent behavior" (007).
Claimant called Dr. William Sledge as an expert in the field of psychiatry (see Court Exh 1 [CV]). Dr. Sledge testified that he had been a board-certified psychiatrist for 34-35 years and was in the process of retiring from his positions running the psychiatric hospital and associated facilities at Yale University ("Yale") and Yale-New Haven Hospital in New Haven, Connecticut, serving as the medical director and the service line co-director of mental health services. He was also a professor of psychiatry at Yale, a psychoanalyst, a member of several professional associations, had training as an aviation psychiatrist, served as a flight surgeon in the military, and had authored approximately 200 publications (TT: 273-277). He had reviewed 20-25 cases for private attorneys, but had been recognized as an expert and testified in court in only one. The court accepted Dr. Sledge as an expert, with no objection (TT: 278-279).
Dr. Sledge had reviewed Wilson's medical records and the New York State policies and procedures governing hospital requirements (Exhs A and B). He had also reviewed transcripts of depositions taken of Wilson, Clapp, and the nurses and physicians who took care of Wilson, including, inter alia, Dr. Drubetskiy (TT: 280-281). In his expert opinion,
[T]he staff [at Rockland] were not appropriately assertive and aggressive in terms of recognizing the risks that Mr. Wilson presented on the day in which he struck Mr. Clapp and were not aware appropriately where, or proactively intervening in a way that would keep him from committing harm to Mr. Clapp (TT:281).
Dr. Sledge shared his observations about Wilson as gleaned from the records, and the triggers that stood out. He described Wilson as "a particularly difficult patient; violent, paranoid, suspicious [. . .] a violent difficult guy, particularly when he wasn't taking his medicines, but also when he was taking his medicines, he was volatile" (TT: 282). The triggers identified from the records by Dr. Sledge were "when [Wilson] was turned down for dispositions that allowed him to leave the hospital or leave the confines of some kind of constraining environment, and the other was strangers" (TT: 282-283). In the doctor's opinion, the staff at Rockland were required to go through the records and identify Wilson's triggers, but the staff had not identified them "at all" (TT: 283-285). The staff should have, but failed to recognize the warning signs that Wilson could become violent. One of these warning signs was Wilson being turned down for a discharge (TT: 300-317). The staff failed to observe and interact with the patient, and to properly record the patient's condition on a continuing basis (id.).
On cross-examination, Dr. Sledge displayed some confusion about the medical records, the facts they contained, and the sequence of events. He could not locate in the records any indication that Wilson had been classified as high risk at Rockland, or had been told before the assault that he had been turned down for a discharge from Rockland (TT: 324-332). Dr. Sledge also had no idea whether Wilson had become edgy or psychotic because it was not noted in the records (TT: 299-300). On redirect examination, Dr. Sledge testified that on the morning of the interview, the team should have monitored Wilson more closely, discussed it with him, and assessed him in a more thorough way (TT: 358-359).
Defendant called Dr. L. Mark Russakoff as an expert in psychiatry (see Court Exh 2 [CV]). He was a board-certified psychiatrist working as the Director of Psychiatry at Phelps Memorial Hospital in Sleepy Hollow, New York. Dr. Russakoff attended medical school at the State University of New York Downstate, and did his residency for psychiatry at Yale. He had been a fully trained psychiatrist since 1975, and appeared as an expert for plaintiffs and defendants in Federal Court, Westchester County Court, and in the Court of Claims. He testified to having publications, receiving awards, and being experienced in the treatment of schizophrenics (Russakoff, TT: 504-509).
Based on his review of the psychiatric records, deposition transcripts and policies provided to him, he opined that: Rockland had not deviated or departed from accepted medical practice and standards in rendering care and treatment of Wilson and claimant; medical staff at Rockland were obligated to record instances of violence by patients; the record showed no exacerbation of Wilson's illness, outbursts, agitation, violent threats or violence; there was no evidence in the record that being confronted with new people, or denied a transfer or discharge, were triggers for Wilson's violent behavior; and the only identifiable significant warning sign was noncompliance with medication (TT: 519-535).
On cross-examination, Dr. Russakoff testified that: "all patients who are coming into Rockland Psychiatric are there because of concerns about dangerousness"; despite Dr. Drubetskiy's failure to use the assessment forms required by Rockland policy, the assessments were effectively performed; and closer supervision of Wilson after his discharge interview was not required (TT: 541-552, 652-653).
Claimant has the burden to prove the State's liability by a preponderance of the credible evidence (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]). "The elements of common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury" (Ruiz v Griffin, 71 AD3d 1112, 1114 [2d Dept 2010]). Claimant has met his burden to show by a preponderance of the evidence that defendant had a duty to protect him from harm.
It "is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity" (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]). A "hospital has a duty to safeguard the welfare of its patients [. ..], measured by the capacity of the patient to provide for his or her own safety" (N. X. v Cabrini Med. Ctr., 97 NY2d 247, 252 [2002]). In the context of a State facility like Rockland, the duty is "to exercise reasonable care in protecting [mentally disabled persons in its care] so as to prevent their being injured" (Harris v State of New York, 117 AD2d 298, 303 [2d Dept 1986]. However, a hospital is not an insurer of patient safety and is not required to keep each patient under constant surveillance (see, id.). The scope of a hospital's duty is limited to risks that are reasonably foreseeable (see Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]; Ruiz v Griffin, 71 AD3d at 1114 [2d Dept 2010]).
The court must determine whether the evidence shows that Wilson's unprovoked violence against another patient was within the scope of risks against which the State was under a duty to protect (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316 [1980]). The precise harm that occurred need not be foreseeable. Claimant's burden is not to show exactly what happened and why, but to show "it was reasonably foreseeable that an injury could occur" (Maldonado v State of New York, 27 Misc 3d 1233[A] [Ct Cl 2010]), and that the State's conduct "was a substantial causative factor in the sequence of events which led to [claimant's] injuries" (Harris v State of New York, supra, 117 AD2d at 305). The court finds that claimant has met his burden to show by a preponderance of the evidence that sudden unprovoked violence by Wilson against another patient was reasonably foreseeable. Even with all the redactions to the records, they establish that Wilson was an extremely dangerous and unpredictable individual with a long history of spontaneous, unprovoked violence, including assaults of fellow inmates and patients. There is no question that Wilson's treating physician failed to comply with Rockland's policies for the clinical assessment of risks presented by a new patient, and to fully review Wilson's psychiatric records. The record also supports finding that Wilson's treating physician and the treatment team responsible for Wilson failed to appreciate the risk of violence Wilson presented, the spontaneous and unpredictable nature of Wilson's violence, and to plan accordingly. Claimant argues that these failures are proof of negligence, and deviate from accepted psychiatric practices. Defendant argues that the formal assessment would not have resulted in different treatment or handling of Wilson because his behavior did not indicate he would become violent, and the assessments that were done comported with accepted psychiatric practices.
Failure to follow Rockland's assessment policy is "some evidence of negligence" (Acerbo v State of New York, 32 Misc 3d 1230(A) [Ct Cl 2011] see Haber v Cross County Hosp., 37 NY2d 888, 889 [1975]; see also Fiorino v North Shore Univ. Hosp. at Glen Cove, 78 AD3d 1116, 1117-1118 [2d Dept 2010] [defendant denied summary judgment where failed to show it did not depart from good and accepted medical practice by failing to enforce own policy]). In the Acerbo case, which also involved Rockland, the court (Ruderman, J.) concluded that Rockland's failure to abide by its own policy and procedure - of ensuring that patients return eating utensils - was "some evidence of negligence," and found the State liable for the attempted suicide of a patient with a plastic knife. The Court found that what happened was exactly what the policy sought to prevent, so it was a "foreseeable risk" (id.). The State was found negligent in spite of testimony by its expert (Dr. Russakoff, its expert here) that the records did not contain evidence of "red flags" showing imminent risk (see Wright v State of New York, 31 AD2d 421 [4th Dept 1969] [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]).
The circumstances here are similar. The harm that occurred was within the scope of harm Rockland's clinical risk assessment policy was designed to prevent. The policy was designed,
[t]o assess behavioral patterns in patients who are at high risk for dangerousness to self and other[s] and to use those patterns in treatment planning and prevention. [... .] The screening process employs a limited number of static and dynamic variables derived from the literature on risk assessment. These variables include items assessing likelihood, severity, mental status, and situational/environmental factors [... .] The second stage of the process involves a detailed assessment of the individual acts of dangerousness to self or others. All patients who are classified as "high risk", based on the screening criteria, must be assessed using the formal assessment (see "FORMS" section below). [... .] A history of prior suicidal or violent behavior is a significant predictor of future acts, and the predictive validity is only increased as clinicians and patients know specifics about the prior dangerous acts. The formal assessment is designed to aid the clinician and the patient in developing a clinical profile of dangerousness to self or others.
(Exh 6). Under the policy, Wilson was patently a "high risk" patient given his past violence, arson and sex offense (Exh 8), so the second, more detailed assessment of Wilson's past violence and behavior was required. This was not done. In fact, Dr. Drubetskiy was not even aware of the policy. Without knowledge of the specifics about Wilson's prior dangerous acts, under the policy a high risk patient's dangerousness could not adequately be predicted.
Defendant argues that the lack of negligence was established by Dr. Drubetskiy's and the teams's observations that Wilson was calm, cooperative, medication compliant, quiet and non-aggressive from the moment he arrived until the moment he hit claimant. Defendant's expert opined that based on these observations, closer monitoring of Wilson or separating him from other patients was not warranted. This opinion simply ignores Rockland's policy and its purpose, and it is not based on anything in the record other than general, conclusory self-serving statements by Rockland's employees six years after the incident. The court finds much of this testimony unpersuasive.
Wilson's history renders improbable the testimony of Dr. Drubetskiy and Dr. Russakoff that Wilson's behavior gave no sign of agitation or anxiety, and that he was not dangerous because he was medicated. Wilson had previously displayed agitation, anxiety, paranoia and aggression at Central even while he was medicated (as established by the various "stat med" orders on notes), and on observing his behavior the Central staff took action to prevent a violent outburst. They also maintained an environment in which Wilson brought his agitation to their attention, and he was able to self soothe.
Additionally, the scant recorded detail about Wilson's behavior at Rockland indicates that he did show signs of agitation and anxiety. For example, there was a two-week period in which Wilson refused to attend groups or medical and clinic appointments, became withdrawn, and spent most of his time standing outside his room (Exh A: 540). He is described in the initial treatment plan as "withdrawn, internally preoccupied, selectively mute, anxious and guarded" (Exh B: 003). The "focus of treatment" stated in goal #1 of his revised goal plan after the assault is to "reduce Mr. Wilson's paranoid thoughts that trigger violent behavior" (007). The inescapable conclusion is that Wilson's treatment team either knew or should have known this before the assault, as well as the warning signs and triggers. This record therefore supports a finding of ordinary negligence and is within the capability of a lay person to determine. Accordingly, the court finds that the failure of defendant to properly assess Wilson is in violation of its standing policy and the failure to take the precautionary measures indicated constitute such negligence.
The court also finds that Rockland's failures were the proximate cause of claimant's injuries. It is improbable that Wilson's behavior at Rockland differed so drastically from his behavior at Central, where he was monitored closely and medicated when necessary to restrain him. The court is mindful of the difficult situation facing Rockland and other psychiatric institutions that are inundated with extremely ill and dangerous individuals, many of whom are homeless. Unfortunate as the situation is, it is not an excuse for failing to protect claimant.
The claim for medical malpractice is based on the same set of facts and pleads the same injuries as the claim for negligence. The malpractice claim is therefore dismissed as duplicative (see B.F. v Reproductive Medicine Assoc of N.Y., LLP, 136 AD3d 73, 80-82 [1st Dept 2015] [claims duplicative of malpractice dismissed]; see also Vermont Mut. Ins. Co. v McCabe & Mack, LLP, 105 AD3d 837, 840 [2d Dept 2013] [dismissal denied where fraud and malpractice claims based on independent tortious conduct]).
Accordingly, defendant is 100% liable to claimant on his claim for negligence. The Clerk of the Court is directed to enter interlocutory judgment accordingly. The court will schedule the damages portion of the trial as soon as practicable.
March 30, 2016
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims