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Jorge OLIVIERI, Claimant, v. The STATE of New York, Defendant.
The trial of this claim on liability only was heard on October 5, 2021 via video-conferencing technology.1 The instant claim alleges negligence and improper supervision due to an unprovoked assault on claimant by another patient at Mid-Hudson Forensic Psychiatric Center on November 16, 2013. Claimant testified on his own behalf and presented the testimony of Martin Vazquez. Claimant's Exhibit 2 and defendant's Exhibits C through F were received into evidence on stipulation. Defendant presented the testimony of James Parker. The executed virtual trial stipulation was received into evidence as Court's Exhibit 1.
Claimant testified to the following facts.
On November 16, 2013, he was a patient at Mid-Hudson Forensic Psychiatric Center (Mid-Hudson). The hospital was a custodial setting and patients were required to be in the dayroom at various times of the day (T: 12-13).2 To get to the dayroom, patients had to walk in a hallway about six to eight feet wide. At about 4:00 p.m. or 5:00 p.m. on the day in question, claimant was walking to the dayroom and had to pass between two staff members seated on the left side of the hallway. Across the hall on the right, there was an open door to a room in which there was a patient (identified herein as “J.D.”). Claimant had been back and forth to the dayroom that day (T: 14-16). As claimant walked by the open door on the right, there was nothing between claimant and J.D., who suddenly emerged from the room and struck claimant. The staff pulled claimant away to the dayroom, then to the nurse's station (T: 16-19).
Claimant was not previously acquainted with the patient who hit him. Claimant had not been told by staff that J.D. had threatened to kill somebody or was dangerous (T: 20-21). On cross-examination, claimant testified that he had not seen J.D. before being hit by him (T: 21).
Martin Vazquez testified to the following facts.
Vazquez works as a Security Hospital Treatment Assistant (SHTA) at Mid-Hudson. He held the same position at Mid-Hudson in November of 2013 (T: 24-25). The patients’ dorm is separate from the dayroom, and in between them there is a quiet room and a single-man room (T: 29). On November 16, 2013, Vazquez was assigned to a two-to-one observation of J.D. due to the latter's prior assault against somebody at the facility.3 Two-to-one observation means there are two SHTAs with one patient (T: 26-28). Vazquez remembered the name Jorge Olivieri (claimant herein) “because [Vazquez] was traumatized about how much blood [Olivieri] spewed on the day he was assaulted” (T: 26). Vazquez recalled standing behind J.D. when he saw the latter assault claimant. Referring to J.D., Vazquez testified, “I wouldn't want him walking behind me” (T: 31).
At the time, Vazquez was not aware that J.D. had threatened to punch anyone who walked by his door (T: 31-33). On reviewing the narrative in the incident report (Ex. 2), Vazquez acknowledged writing that J.D. told him, “my right cross is dangerous and I'm going to body one of these [expletive deleted] unless you send me back to Riker's” (T: 35). The words “kill body bag” are noted above the word “body.” Vazquez claimed that J.D. made the statement after and not before the incident, in order “to clarify why he did it” (id.). Vazquez was questioned about another statement referred to in the investigative findings section of the report prepared by Senior SHTA McPherson 4 that “[p]atient [J.D.] had made threats to hit anybody passing the doorway” (Ex. 2, ¶ 16). Vazquez reiterated that the statement he referred to in the report was made by J.D. after the incident, but he did not know what, if anything, J.D. had said previously to McPherson or other staff members (T: 37-39).
Vazquez was questioned about a video of the incident admitted as Exhibit C. He acknowledged the video shows that just prior to the incident, J.D. was in his room and Vazquez was seated on a chair across the hallway. Other patients and staff walking down the hallway passed between the door to J.D.’s room and where Vazquez was seated along with another SHTA. Vazquez judged the distance between him and the door to J.D.’s room as being an arm's length plus twelve inches, which is the custom (T: 40-45). He explained that he could not have a door between himself and the patient as “[t]hat would be seclusion” (T: 46), and he was not sitting across the hallway nearer to J.D. because “we don't have patients behind our backs” (T: 47). Notably, Vazquez admitted that from where he was seated, he “could not prevent any assault” (T: 48).
Vazquez was asked about the terminology “the least restrictive confinement.” He understood it to mean giving a patient “enough room so he doesn't feel secluded” (T: 51), which is what he was trying to accomplish with J.D. on November 16, 2013. Only a doctor can place a patient in seclusion (T: 55-56). Vazquez explained that seclusion means there is a locked door and, during his 20 years of experience, seclusion was not used (T: 56-57). Vazquez believed that J.D. was placed in the room where he was the day of the incident because it was a single-man room and the least restrictive way to restrict a patient without a locked door. There were no other single-man rooms (T: 59-61).
The Incident Report (Ex. 2) contains a narrative description by SHTA Vazquez and initial investigative findings by Senior SHTA McPherson. The narrative description written by Vazquez on the day of the incident provides, in pertinent part:
“Patient [J.D.] who was on a 2:1 observation was at the doorway of his room [and] suddenly [and] without provication [sic] violently assaulted his peer [ ]Olivieri who was walking past his doorway to get to the dayroom. 2:1 staff immediately intervened [and] a manual restraint as this patient was continuing to pummel his peer with great force. Patient stated “my right cross is dangerous and I'm going to body (kill body bag)5 one of these [expletive deleted] unless you send me back to jail (Rikers Island). Patient [J.D.] suffered no injuries @ this time. Patient OLIVIERI suffered a huge laceration to the right side of his face” (Ex. 2, ¶ 15).
In a “witness statement” attached to the Incident Report, Vazquez states that the second staff member monitoring J.D. with him on November 16, 2013 was SHTA McManus. Vazquez also wrote in his statement that J.D. was in the doorway to his room and that “both staff and patients have to pass his doorway,” and “patient Olivieri [claimant herein] had to move pass between both 2:1 staff and patient [J.D.] to get to the dayroom.”
The initial investigative findings made by McPherson on the day of the incident (id. at 16) provide, in pertinent part: “Pt [J.D.] had made threats to hit ‘anybody that passes my door. I want to go back to jail.’ Pt [J.D.] punched pt Olivieri in the jaw.” These findings appear in the section captioned “Probable Cause and Contributing Factors” (id.). The observation level ordered for J.D. was noted on the report as being “2:1 - two staff in proximity to patient” (id. at 31).
Claimant rested his case.
The State moved to dismiss the claim for failure to prove a prima facie case. Claimant opposed the motion. The Court reserved decision on the motion.
James Parker testified that he has been employed by the New York State Department of Mental Health for thirty-five years and he has held the job title of Supervising Security Hospital Treatment Systems for nine years. He is head of security at Mid-Hudson. In November 2013 he was a Supervising SHTA. Claimant objected to the State's offer of Parker as an expert in the field of security at Mid-Hudson, citing Parker's lack of a college and advanced degrees in the fields of security or forensic psychology, his sole experience being on-the-job training by the State, and his current position as supervisor of Mid-Hudson. The Court sustained the objection. Parker was permitted to explain the protocols at the hospital as a fact witness (T: 63-72).
Parker testified to the following facts.
“A forensic psychiatric center is a facility that houses patients who are going through the court system, pending or deemed not fit to stand trial” (T: 77). Mid-Hudson is not a correctional facility, but it is a custodial setting. Determinations as to the level of restriction necessary for a patient are clinical determinations made by a psychiatrist (T: 80-81, 96). If a patient has been in a prior altercation, they put him on levels of supervision, such as two-to-one supervision. In a two-to-one supervision situation, their policy is to have staff be in “close proximity” to the patient (T: 89), and to have visual contact with the patient (T: 89-93). Manual restraint is used only for imminent danger, such as being assaultive with another patient (T: 94-95). Parker also testified that patients who are an imminent danger to themselves or others are given two-to-one supervision (T: 112).
A threat like the one made by J.D. that was referred to by Senior SHTA McPherson in the Incident Report would have been reported to a doctor (T: 108-109). If the staff is aware that a patient had made threats, they “would keep the patient separated” (T: 88). Close proximity to a patient making a threat means close enough to prevent the patient from carrying out the threat (T: 105). After viewing the video of the incident, Parker explained that the staff were in the typical location for staff in a two-to-one observation in the facility. If they had been sitting in front of the patient's door that would have been considered seclusion, which requires a doctor's order (T: 102-103). Significantly, Parker acknowledged that patients walking down the hallway passed within six inches of J.D.’s doorway, and the staff observing J.D. could not have stopped him from punching claimant from where they were seated (T: 101, 105-106).
The section of the Mid-Hudson Policy & Procedure Manual (the “manual”) dealing with supervision was admitted as Exhibit D. Under the heading “Policy Statement,” the manual provides, in relevant part, that “at times particular patients demonstrate behaviors that pose a high risk threat of harm to themselves or others” (Ex. D, p 1). Under the heading “Enhanced Levels of Supervision,” the manual provides that a “[p]atient should be separated from potential targets (staff and patient)” (id. at 5). With respect to two-to-one supervision, which is the highest level of enhanced supervision, the manual provides that:
“[S]taff must ensure there are no physical barriers between them and the patient being monitored that would prevent immediate intervention with the patient [․]. Unless 2:1 Supervision is ordered for Assault, staff is to maintain a distance of arm's length plus 12 inches from the patient and is to maintain continuous visual contact at all times. Patients placed on a 2:1 for Assault are to be maintained in visual contact at all times as well as in close proximity so both staff members are able to respond quickly to mitigate the risk of injury” (id. at 8) (emphasis added).
The section of the manual dealing with restraint and seclusion (Ex. E) defines seclusion as: “The placement of an individual alone in a room or area from which he or she cannot leave at will [․]. This includes restricting the patient's egress through the presence of staff, by coercion, or by imposing implicit or explicit consequences for non-compliance [․]” (id. at 6).
The State rested its case.
At the conclusion of the State's case, the State again moved to dismiss the claim for failure to prove a prima facie case. Claimant opposed the motion. The Court reserved decision on the motion. The parties put forth closing arguments in post-trial written memoranda that have been received and reviewed by the Court.
The elements of negligence are “(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom” (Solomon v City of New York, 66 NY2d 1026, 1027 ). It is not disputed that the State owed claimant a duty of care. The State had a legal duty to exercise reasonable care to protect claimant because he was being held in State custody (see Sanchez v State of New York, 99 NY2d 247, 256  [duty owed to incarcerated individuals]), and he was a patient in a State psychiatric facility (see Dawn VV. v State of New York, 47 AD3d 1048, 1050 [3d Dept 2008] [duty owed to patient in State facility]; Kalem v State of New York, 213 AD2d 515, 515 [2d Dept 1995], lv denied 86 NY2d 701 ).
“Whether a breach of duty has occurred depends upon whether the resulting harm was a reasonably foreseeable consequence of the defendant's acts or omissions” (Gordon v City of New York, 70 NY2d 839, 841 ). Claimant argues that the State had actual knowledge of J.D.’s threats to assault other patients and, as such, it was reasonably foreseeable to the State that J.D. would do so if given the opportunity. Claimant also argues that the following unreasonable acts and omissions on the part of the State violated Mid-Hudson's policies and gave J.D. the opportunity to harm claimant: failing to classify J.D. for seclusion; failing to place J.D. in a room away from those he threatened to hit; placing the two SHTAs across the hall from J.D.’s room; and forcing patients to walk within six inches of J.D.’s open doorway, thereby becoming barriers between J.D. and the SHTAs. The State argues that the evidence shows the State acted reasonably by placing staff in close proximity to J.D. and there was no foreseeable risk of potential harm.
After observing the witnesses at trial and reviewing the exhibits and post-trial memoranda, the Court finds that the material facts are mostly undisputed and support a finding of liability for negligence. The evidence establishes the following facts. Patients being held in custody at the psychiatric facility Mid-Hudson have pending charges or are deemed not fit to stand trial. On November 16, 2013, Mid-Hudson patient J.D. was placed in a single-man room on a hallway near the dayroom pursuant to a two-to-one supervision clinical order. J.D. had previously assaulted a patient or a staff member. There were other rooms on the floor, but only one single-man room. The two SHTAs implementing that order were seated across the hall from J.D.’s open doorway. Patients at Mid-Hudson are required to be in the dayroom at certain times during the day. The only access to the dayroom was through the hallway and patients had to walk within six inches of J.D.’s open doorway, between J.D. and the two SHTAs. When claimant walked by the doorway, the SHTAs remained seated as J.D. jumped out and punched claimant in the jaw. Stated simply, at the time of the assault, the SHTAs were not within close proximity to prevent the assault and placed themselves in a position where they could not do so.
Contrary to the State's argument, the evidence does not establish that the threats by J.D. recorded in the Incident Report were both made after the incident. Even accepting Vazquez's testimony that J.D. said he would “body one of these [expletive deleted]” after the incident, Senior SHTA McPherson stated in the Incident Report that J.D. “had made threats to hit ‘anybody that passes my door’ ” (Ex. 2). McPherson also recorded J.D.’s past statement in the section of the report captioned “Probable Cause and Contributing Factors” (id.). The State does not address McPherson's use of the past tense, to wit, “had made threats,” or the inclusion of the threat in the report as a reason for J.D.’s assault on claimant. Parker testified that close proximity to a patient making a threat means close enough to prevent the patient from carrying out the threat, and that Vazquez and the other SHTA assigned to supervise J.D. could not have prevented J.D. from assaulting claimant from where they were seated (T: 105-106).
The evidence also demonstrates that patients put under two-to-one supervision pose a “high risk threat,” Mid-Hudson requires that such patients are to be “separated from potential targets” and to be maintained in “continuous visual contact” by the staff. Furthermore, the staff are to “ensure there [are] no physical barriers between them and the patient” (Ex. D, pp 5, 8). Because of the SHTAs’ location across the hallway, other patients passing between them and J.D.’s doorway constituted a physical barrier and interrupted their visual contact with the patient.
The Mid-Hudson policy, that two-to-one supervision requires staff “to maintain a distance of arm's length plus 12 inches from the patient,” is also qualified where a patient has committed a prior assault. Under such circumstances, Mid-Hudson requires staff to be “in close proximity” to the patient in order “to mitigate the risk of injury” (id. at 8). The Court credits Vazquez's testimony that J.D. had committed a prior assault. Although Vazquez's testimony that he was standing behind J.D. at the time of the assault was contradicted by the Incident Report and the video, his testimony that J.D. had committed a prior assault was not contradicted by other evidence. It is also supported by the fact that J.D. was assigned the highest level of observation.
The patients were not separated from J.D., but rather they were obliged to pass only six inches from his doorway. Even if the SHTAs were, as Vazquez testified, an arm's length and twelve inches from J.D., they were instead required to be in “close proximity” to J.D. so as to mitigate the risk of injury to other patients, including claimant. Rather, as Parker testified, the SHTAs could not have stopped J.D. from assaulting claimant from the place where they were seated. This constitutes a violation of Mid-Hudson's own policies and manual and amounts to a violation of the State's duty to use reasonable care to protect claimant from a foreseeable assault by J.D.
The Court will not go so far as to find that clinicians at Mid-Hudson should have ordered seclusion for J.D. instead of two-to-one supervision. The parties did not address this issue in any depth or cite to relevant case law. Moreover, claimant did not produce expert testimony on this issue. Suffice it to say, the State's actions and omissions fell short of the hospital's own policies and manual and did not provide claimant with the protection to which he was entitled. Additionally, the State's arguments based on the tight dimensions of the hallway, the lack of other single-man rooms, and J.D.’s mental-health needs do not excuse the State's failure to protect claimant.
Finally, the evidence establishes that the State's violation of its duty was the proximate cause of his injuries. “ ‘To carry the burden of proving a prima facie case, [a] plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury’ ” (Santaiti v Town of Ramapo, 162 AD3d 921, 926 [2d Dept 2018], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ). Here, the State failed to separate J.D. from claimant and other patients and violated its own policies and manual by failing to properly implement the ordered two-to-one supervision. The Court finds that this failure was the proximate cause of claimant's injuries stemming from the assault at the hands of J.D.
Upon consideration of all the evidence presented at trial, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant established by a preponderance of the credible evidence that the State is 100% liable.
Accordingly, the State's motions to dismiss made at the close of claimant's case and made at the conclusion of trial are now DENIED. All other motions and objections not ruled upon are DENIED. A trial on the issue of damages will be scheduled as soon as is practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED.
Consistent with the new policy of the Unified Court System, the parties are encouraged to consider alternative dispute resolution for the ascertainment of damages.
1. Due to the retirement of Judge Stephen J. Mignano, the claim was transferred to Judge Walter Rivera by Order dated May 28, 2021.
2. References to the trial transcript are preceded by the letter “T.”
3. Vazquez did not recall whether the person J.D. previously assaulted was a patient or a staff member.
4. Vazquez referred to Karen McPherson as a Senior SHTA (T: 25).
5. The words in parentheses “kill body bag” appear above the word “body” in the handwritten summary.
Walter Rivera, J.
Response sent, thank you
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Docket No: Claim No. 124849
Decided: March 21, 2022
Court: Court of Claims of New York.
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