Opinion
No. 06–0070.
09-14-2011
Judy TIENKEN, Plaintiff, v. BENEDICTINE HOSPITAL; Scott Tienken and Todd Tienken, Defendants.
Seligman & Seligman, Delice Seligman, Esq., of Counsel, Kingston, Attorneys for Plaintiff. Sholes & Miller, LLP, John Tackach, Esq., of Counsel, Poughkeepsie, Attorneys for Defendant Benedictine Hospital. Mainetti, Mainetti & O'Connor, P.C., Regina Fitzpatrick, Esq., of Counsel, Kingston, Attorneys for Defendants Scott Tienken and Todd Tienken.
Seligman & Seligman, Delice Seligman, Esq., of Counsel, Kingston, Attorneys for Plaintiff.
Sholes & Miller, LLP, John Tackach, Esq., of Counsel, Poughkeepsie, Attorneys for Defendant Benedictine Hospital.
Mainetti, Mainetti & O'Connor, P.C., Regina Fitzpatrick, Esq., of Counsel, Kingston, Attorneys for Defendants Scott Tienken and Todd Tienken.
Opinion
MICHAEL H. MELKONIAN, J.
Plaintiff Judy Tienken (“plaintiff”) alleges that she was unlawfully confined, purportedly pursuant to Mental Hygiene Law (“MHL”) § 9.39 for nineteen days, against her will, at defendant Benedictine Hospital (“Benedictine” or “the hospital”). The complaint asserts multiple causes of action against Benedictine and also against her brothers, co-defendants Scott Tienken and Todd Tienken (collectively referred to as “co-defendants”): including assault and battery, false imprisonment, intentional infliction of emotional distress, negligence and malpractice in the exercise of medical judgment under MHL § 9.39, and violation of civil and constitutional rights. The present motions by the hospital and the co-defendants, which the plaintiff opposes, are for summary judgment dismissing the complaint in its entirety. Plaintiff cross-moves for summary judgment on the afore stated causes of action.On February 16, 2005, co-defendant Todd Tienken, plaintiff's adult brother, contacted Ms. Penelope Lusk, Director of Community Services for Ulster County. Mr. Tienken informed Ms. Lusk that plaintiff was suffering from a mental illness which he believed required treatment in a mental health facility. He further informed her that he believed plaintiff was likely to cause serious harm to herself or others. Mr. Tienken informed Ms. Lusk, inter alia, that plaintiff had threatened to kill her brothers; that she was paranoid and delusional; and that she believed that her family members were involved in a conspiracy against her. Based upon this information, Ms. Lusk issued a “pickup order” for the plaintiff. Plaintiff was thereafter taken to Benedictine pursuant to MHL § 9.39, which provides for the involuntary admission of a person who has “a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others.” Upon her arrival, she was examined in the emergency room and was admitted to the mental health unit.
Thereafter, plaintiff requested a hearing (MHL § 9.31 ) and on March 7, 2005, a hearing was held before the Honorable Vincent J. Bradley in Ulster County Supreme Court to determine if plaintiff would remain confined in the hospital. Judge Bradley held that despite the presence of “some sort of mental problem,” Benedictine failed to prove by clear and convincing evidence that plaintiff required continued treatment to prevent her from harming herself or others. As a condition of her release, however, Judge Bradley issued an order of protection preventing plaintiff from contacting her mother, her brothers, and her children. Plaintiff's involuntary commitment to the hospital ended on March 7, 2005.
It is axiomatic that the granting of summary judgment is an extreme form of relief that is the procedural equivalent of a trial. Therefore, such a grant is only appropriate when the evidence adduced leaves no material issue of fact unresolved (Andre v. Pomeroy, 35 N.Y.2d 361, 362 ). Thus, in order to obtain summary judgment it is necessary that the movant establish a cause of action or defense sufficient to warrant the court as a matter of law in directing judgment in his favor (Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067–1068 ); see Zuckerman v. City of New York, 49 N.Y.2d 557 ; Alvarez v. Prospect Hospital, 68 N.Y.2d 320 ). The movant must show entitlement as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 582 ).
Despite the heavy burden thus imposed upon the moving party, once that party has made a prima facie showing of entitlement to summary judgment, the burden shifts to the opposing party, who must produce sufficient evidence to require a trial of any issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 ). Summary judgment is not appropriate where there is any doubt as to the existence of triable and material issues of fact. Moreover, summary judgment requires that the Court engage in an exercise of issue finding rather than issue determination (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 ). The Court's function is to view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, and to determine whether there is any triable issue of fact outstanding (Matter of Suffolk DSS v. James M., 83 N.Y.2d 178 ; Simpson v. Simpson, 222 A.D.2d 984 ; Boyce v. Vazquez, 249 A.D.2d 724 ).
After a full review of this record, this Court finds that no triable issues of fact exist sufficient to defeat defendants' motion with regard to plaintiff's eight causes of action.
Plaintiff's third cause of action is asserted against the co-defendants and alleges intentional infliction of emotional distress. In this regard, plaintiff alleges: “[t]hat the acts of [co-defendants] in filing a false report against plaintiff which resulted in plaintiff being locked into a psychiatric ward with persons who assaulted her or attempted to assault her, who spit at her and drooled and masturbated in her presence and where she was forced to take mind altering drugs against her wishes represent extreme and outrageous conduct which intentionally or recklessly caused severe emotional distress to plaintiff.”
However, plaintiff has not raised the dismissal of this cause of action in her opposition papers. Thus, the Court deems this claim as abandoned and, as such, the co-defendants are entitled to summary judgment on plaintiff's third cause of action (see, Genovese v. Gambino, 309 A.D.2d 832, 833 [where plaintiff did not oppose that branch of defendant's summary judgment motion dismissing the wrongful termination cause of action, his claim that he was wrongfully terminated was deemed abandoned] ). In any event, there is a complete absence of evidence that the co-defendants intended to cause the plaintiff to endure emotional distress, or behaved recklessly (see, 2 PJI3d 3:6 ). A cause of action for intentional infliction of emotional distress must be premised upon allegations of conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143 ; Howell v. New York Post Co., 81 N.Y.2d 115, 121 ; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 ). Given the circumstances surrounding the plaintiff's involuntary commitment, the conduct of the co-defendants, as a matter of law, was not sufficiently outrageous to support such a cause of action (see, generally, Wyllie v. District Atty. of County of Kings, 2 AD3d 714 ; Navarro v. Federal Paper Bd. Co., Inc., 185 A.D.2d 590 ). Moreover, plaintiff also failed to annex to her opposition papers any medical evidence, in admissible form, supporting her claim of extreme emotional disturbance so as to raise a triable issue of fact (Glendora v. Walsh, 227 A.D.2d 377 ; Christenson v. Gutman, 249 A.D.2d 805 ).
The Court notes that with respect to co-defendant Scott Tienken, plaintiff concedes that he was named as a party in error.
Accordingly, plaintiff's complaint against co-defendants Todd Tienken and Scott Tienken is dismissed in its entirety.
The cause of action sounding in ordinary negligence is also subject to summary dismissal. Given the gravamen of the plaintiff's complaint (i.e. wrongful detention and commitment), the plaintiff may not recover under general negligence principles, but rather is relegated to the remedies available under the cause of action for false imprisonment. Accordingly, that branch of Benedictine's motion which is for summary judgment dismissing the cause of action for negligence as asserted against it is granted (see, Antonious v. Muhammad, 250 A.D.2d 559 ; Higgins v. City of Oneonta, 208 A.D.2d 1067 ).
Mental Hygiene Law § 9.39 provides that a person may be involuntarily committed to a hospital when the person has “a mental illness for which immediate inpatient care and treatment” is appropriate and which is “likely to result in serious harm to himself or others. Likelihood to result in serious harm as used in this article shall mean: 1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or 2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.” Rather than challenge the procedures employed, the plaintiff maintains that the decision to commit her involuntarily was reached negligently, thereby giving rise to causes of action sounding in negligence, false imprisonment, assault and battery, medical malpractice, and violations of her civil rights.
A confinement pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice (see, Tewksbury v.. State, 273 A.D.2d 376 ; Matter of E.K. v. State, 235 A.D.2d 540 ; Ferretti v. Town of Greenburgh, 191 A.D.2d 608 ; Jenkins v. Wilbur, 72 A.D.2d 822 ; Welch v. County of Westchester, 177 A.D.2d 627 ; Welch v. County of Westchester, 150 A.D.2d 371 ). Stated differently, “[b]ecause a determination pursuant to Mental Hygiene Law article 9 requires a medical judgment by a treating physician, the determination to retain a patient is privileged only in the absence of negligence, or malpractice, in the exercise of that medical judgment.” Morgan v. City of New York, 32 AD3d 912, 914. In brief, all of the plaintiff's causes of action ultimately turn on the issue of medical malpractice.
In support of their motion for summary judgment, the hospital submits, inter alia, an affidavit of Jeffrey DeLisle, M.D., a psychiatrist. The hospital's expert, Dr. DeLisle, opines that plaintiff's admission to Benedictine February 17, 2005 was warranted and justified. Dr. DeLisle states that the appropriate treatment for plaintiff's presenting symptoms which included bipolar disorder with a recent manic episode was an emergency admission pursuant to MHL § 9.39. Dr. DeLisle opines that the facts upon which the hospital based its decision to issue a pick-up order, its subsequent examination and diagnosis of the plaintiff neither deviated from sound medical practice nor constituted malpractice. More specifically, Dr. DeLisle opined that the pick-up order demonstrated the requisite “substantial risk of physical harm” to either plaintiff herself or others, as proscribed by MHL § 9.39. In Dr. DeLisle's opinion, the specific statements made in support of the pick-up order constitute unequivocal evidence that plaintiff had made homicidal threats, which alone satisfies the requirements of MHL § 9.39. With regard to plaintiff's commitment at the mental health unit, Dr. DeLisle opines that the paranoid and delusional behavior exhibited by plaintiff required further observation and treatment. Benedictine also submits plaintiff's medical records with respect to her admittance to the mental health unit. Contained within those records is the report of Dr. Rebecca Raphael, a staff psychiatrist at Benedictine, who conducted a psychiatric interview with plaintiff. Based on all the information she had, Dr. Raphael concluded that plaintiff was mentally ill and in need of hospitalization. Dr. Raphael based her decisions both to hospitalize and to medicate plaintiff on what she learned about plaintiff's past behavior and persistent psychiatric problems, her recent threats of violence towards her immediate family, and her condition at the time Dr. Raphael examined her. Dr. Raphael found that, inter alia, because plaintiff had threatened to kill her brothers, plaintiff posed a substantial risk of physically harming them. Dr. Raphael further found that plaintiff's speech was very fast, pressured, with occasional flight of ideas. Dr. Raphael found that plaintiff was grandiose and delusional. She diagnosed plaintiff as having a bipolar disorder, most recent episode manic. Based on all of these considerations, Dr. Raphael exercised her professional judgment in recommending that plaintiff be admitted on an emergency basis for care and treatment of her mental illness.
The Court finds that Benedictine met its initial burden of demonstrating that it had a sufficient basis for invoking the privilege afforded by MHL § 9.39 (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851 ). Pursuant to this evidentiary showing, it is incumbent upon the plaintiff to come forward with proof in admissible form establishing the existence of an triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 ).
In opposition to defendants' motion for summary judgment and in support of her cross-motion, plaintiff attempts to raise a triable issue of fact by presenting an attorney's affirmation, plaintiff's own affidavit, and the expert affidavits of Dr. Ilana Kochen, MD, a psychiatrist, and Anne Marie Haber, plaintiff's cousin and a nurse. In response to the plaintiff's reliance on the reports of Dr. Kochen and her cousin, Nurse Haber, Benedictine argues that summary judgment should be granted because plaintiff cannot establish a prima facie case without expert testimony, and plaintiff should be precluded from providing expert testimony at this point, as the plaintiff failed to disclose Dr. Kochen and Nurse Haber as experts prior to the making of this motion.
CPLR § 3101(d)(1)(i) states, “Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion.” Even though defendants made such requests of the plaintiff for several years, plaintiffs did not disclose the identity of her experts until approximately six (6) months after she filed her Note of Issue and Certificate of Readiness. Said expert affidavits were elicited solely for the purpose of opposing defendants' summary judgment motion.
The case law regarding the use of the report of a previously-undisclosed expert in the context of a summary judgment is conflicting. On the one hand, appellate courts have held that a trial court should not consider an expert affidavit offered by a party opposing a summary judgment motion, if the party did not provide an excuse for failing to identify the expert in response to the discovery demands, and the other party was unaware of the expert until the filing of the summary judgment (see, e.g. Yax v. Development Team, Inc., 67 AD3d 1003 Safrin v. DST Russian & Turkish Bath, Inc., 16 AD3d 656 ; Colon v. Chelsea Piers Management, Inc., 50 AD3d 616 ; Muniz v. New York City Housing Authority, 38 AD3d 628 ). In Cramer v. Spada, 203 A.D.2d 739, the Third Department found that preclusion of expert testimony was warranted where plaintiff failed to show that he did not intentionally withhold disclosure.
However, other appellate courts have found that the trial court properly considered a previously-undisclosed expert's affidavit, declaring that CPLR § 3101 does not require a party to respond to a demand for expert witness information at any specific time, nor does it require preclusion of such testimony unless there is a showing of willful failure to disclose, coupled with a showing of prejudice by the other party (see, e.g. Browne v. Smith, 65 AD3d 996 ).
While the Court is cognizant of the varying rulings in the appellate decisions, this Court is inclined to find that the plaintiff's failure to disclose Dr. Kochen and Nurse Haber as experts warrants preclusion by the Court of their reports in the context of this motion. This finding is supported by the fact that plaintiff's expert affidavits herein were elicited solely to oppose defendants' summary judgment motion and said experts were retained well after plaintiff filed her Note of Issue and Certificate of Readiness attesting to the completion of discovery and several years after initial discovery demands. Plaintiff has not provided good cause for her failure to timely disclose said expert witnesses and in fact, makes no argument whatsoever as to why said experts were not disclosed prior to the motions for summary judgment. Plaintiff does not dispute that she failed to respond to defendants' request for expert witness disclosure; that she filed a note of issue in November 2010; that she failed to provide expert witness disclosure prior to the opposition to the instant motion. Plaintiff also fails to proffer a reasonable excuse as to why there was the lengthy delay in providing the expert witness disclosure (Compare, Silverberg v. Community General Hosp. of Sullivan County, 290 A.D.2d 788 ). Accordingly, the affidavits of plaintiff's expert Dr. Kochen and Nurse Haber are hereby rejected.
As it is established law that plaintiff will be unable to establish a prima facie case without the benefit of an expert in this medical malpractice case (see, Ferretti v. Town of Greenburgh, 191 A.D.2d 608 Recht v. Teuscher, 176 A.D.2d 863 ; Fiore v. Galang, 64 N.Y.2d 999 ), summary judgment is warranted and plaintiff's complaint is dismissed.
Accordingly, the motion of the defendants for summary judgment is granted and the complaint is dismissed. The plaintiff's cross-motion for partial summary judgment is also deemed denied as moot.
This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorney for defendant Benedictine Hospital. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.
SO ORDERED.