Opinion
16258/2004.
Decided May 19, 2011.
Defendants, THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER MICHAEL BOTTA, POLICE OFFICER JAMIE PATE, SGT. THOMAS SWANSON, THE NEW YORK CITY FIRE DEPARTMENT EMERGENCY MEDICAL SERVICES, "J DOE," (hereinafter "Defendants"), move this Court for an Order pursuant to CPLR § 3211(a)(7) and CPLR § 3212 for Summary Judgment against the Plaintiff. Defendants VISITING NURSE SERVICE OF NEW YORK INC., and PAULA GITTENS also move to dismiss the complaint as against them.
Plaintiff Attorney (Adelaide Verponi), Sonkin fifer, New York, New York, Mark Sonkin, Esq., Defendant Attorney (the City of NY, NYC Police Dept., P.O. Michael Botta, P.O. Jamie Pate, Sgt. Thomas Swanson, the NYC Fire Dept Emergency Medical Services, J.DOE.).
Michael A. Cardozo, Esq., Brooklyn, New York, Pamela Beitelman, Esq., Defendant Attorney (The Visiting Nurse Service of NY (VNS) Paula Gitten) Rosenblum Newfield, LLC, White Plain, New York.
James Newfield, Esq.
Upon reading the Notice of Motion of Pamela Beitelman, Esq., Attorney for Defendants, THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER MICHAEL BOTTA, POLICE OFFICER JAMIE PATE, SGT. THOMAS SWANSON, THE NEW YORK CITY FIRE DEPARTMENT EMERGENCY MEDICAL SERVICES, "J DOE," dated April 15th, 2011, together with the Affirmation in Support of Pamela Beitelman, Esq., dated April 15th, 2011and all exhibits annexed thereto; the Affirmation in Support by James Newfield, Esq., Attorney for Defendants, THE VISITING NURSE SERVICE OF NEW YORK and PAULA GITTENS, dated April 14th, 2011, and all exhibits annexed thereto; the Memorandum of Law in Support of THE VISITING NURSE SERVICE OF NEW YORK (VNS) and PAULA GITTENS' by James Newfield, Esq., dated April 14th, 2011 and the exhibit annexed thereto; the Affirmation in Opposition by Howard Fifer, Esq., Attorney for Plaintiff, ADELAIDE VERPONI, dated April 25th, 2011, and all exhibits annexed thereto; the Memorandum of Law in Opposition, by Mark A Sonkin, Esq., Attorney for Plaintiff, ADELAIDE VERPONI, dated April 25th, 2011, and all exhibits annexed thereto; the Affirmation in Reply of Pamela Beitelman Esq., dated May 2, 2011 and all the exhibits annexed thereto; the Reply Memorandum of Law by James Newfield dated May 3 2011 and the exhibits annexed thereto; the Order to Show Cause for release of Maimonides medical records dated March 23, 2011 and Affirmation in Support of Peter Koziolkowsky Esq., dated March 18, 2011, and the exhibits annexed thereto; the Affidavit in Support of Pamela Beitelman Esq., April 1, 2011; the Affirmation in Opposition of Mark Sonkin Esq., dated March 25 2011, and the exhibits annexed thereto; and the Affirmation in Opposition of Mark Sonkin Esq., dated March 31 2011; and after argument of counsel and due deliberation thereon, the motion for Summary Judgment by Defendants VNS and PAULA GITTENS is granted, the motion by the City Defendants is granted in part and denied in part and the Order to Show Cause to release Maimonides medical records is denied, for the reasons set forth below.
FACTS
Plaintiff commenced this action seeking to recover for injuries she claims resulted from acts by Defendants in restraining her from interfering with Defendants providing her mother medical care over her objections as her mother's health care agent, and from transporting Plaintiff involuntarily to Maimonides Hospital .
On March 4, 2003 Defendant GITTENS, a nurse employed by Defendant VISITING NURSE SERVICE OF NEW YORK INC. (VNS), was at the Plaintiff's home to treat Plaintiff's 102 year old mother. Plaintiff was not a patient of VNS. Defendant GITTENS decided to call 911 because she believed the mother to be in respiratory arrest.
Plaintiff who had been appointed as her mother's health care agent by a proxy signed March 6, 1998, objected to GITTENS calling 911.
Plaintiff claims she called her mother's attending doctor Dr Kostantinos Koutros, and that the doctor talked to GITTENS. Plaintiff claims that the doctor directed GITTENS not to call 911.
Two Emergency Medical Technicians (EMTs) employed by the New York City Department of Emergency Medical Services (EMS) arrived at the house. GITTENS left the house before the EMTs arrived.
Plaintiff held on to her mother's bed rail and is alleged to have tried to physically block the EMTs from giving her mother oxygen or transporting her to the hospital.
An EMT supervisor, Lt. Craig Wing was called to the scene by the EMTs. It is disputed whether police officers PATE and BOTTA arrived at the house the same time as the EMTs, or whether they were called to the scene by Lt. Wing. Defendant SGT. SWANSON was later called to the scene by the police officers present.
It is disputed by the parties whether Plaintiff told the EMTs and the police that she had a health care proxy, or whether she was not allowed to produce a copy of the proxy. Lt. Wing testified that even had Plaintiff produced the proxy it was EMS's policy not to honor a proxy outside of a hospital setting.
Lt. Wing testified that he talked to Dr. Koutros by phone and Dr. Koutros told him to transport Plaintiff's mother to the hospital. He also testified that he would have transported Plaintiff's mother regardless of Dr. Koutros' instructions.
Plaintiff continued to hold on to her mother's bed after being informed that EMS was going to transport her mother to the hospital. PO BOTTA, at the direction of SGT. SWANSON, then physically removed her from the side of the bed.
Plaintiff alleges that she was dragged across the floor by her arm, yanked by her arm onto a kitchen chair, and handcuffed with her arms behind her.
SGT. SWANSON stated that when PO BOTTA removed Plaintiff from the side of the bed, she slapped PO BOTTA and began kicking.
SGT. .SWANSON then ordered Plaintiff handcuffed. SGT. SWANSON stated that he, PO BOTTA, and PO PATE all had to assist in physically restraining Plaintiff to get the handcuffs on her. SGT. SWANSON stated that Plaintiff then threw herself on the floor and refused to get up.
SGT. SWANSON did not arrest Plaintiff, but concluding that Plaintiff was a danger to herself and others, had her taken by ambulance to Maimonides Hospital.
Plaintiff was wearing only a nightgown. It is disputed whether Plaintiff requested to be allowed to get clothing and was refused, or whether she would not allow her mother's home health aid to go upstairs to get her clothes, at the request of SGT. SWANSON.
Plaintiff alleges as a result of this incident she suffered a rotator cuff tear, joint effusion, a shoulder sprain, bruising to her wrists and arms and a loss of range of motion, as well as humiliation from being taken out of home in handcuffs in front of her neighbors wearing only a nightgown .
Plaintiff sued for her own injuries but has not sued on behalf of her mother's estate and Plaintiff's mother's estate is not a Plaintiff in this action.
Plaintiff alleges three causes of action in her complaint. The first is a state claim for false imprisonment, against all of the Defendants.
The second cause of action is a state claim for assault and battery against SGT. SWANSON, PO BOTTA, PO PATE and J. DOE. The Defendant J. DOE is claimed to be one of the EMTs.
The third cause of action, is a federal claim under 42 USC § 1983 for violation of Plaintiff's constitutional rights, against the CITY OF NEW YORK, SGT. SWANSON, PO BOTTA and PO PATE.
The various Defendants have moved to dismiss the complaint.
VNS DEFENDANTS
VNS and GITTENS have moved to dismiss the complaint against them on the grounds that they owed no duty to the Plaintiff as a health care agent. They also argue that Plaintiff had not been empowered under the health care proxy because her mother had not been declared incapable of making medical decisions, and that calling 911 is not the provision of health services within the meaning of the NYS Public Health Law (PHL).
Section 2984(2) of the PHL is clear that a health care provider, such as VNS, is legally obligated to comply with health care decisions made by an agent under a health care proxy to the same extent as if such decisions had been made by the principal.
The PHL provides a procedure for a situation where a provider wants to override a agent's decision or questions the validity of a proxy. That procedure is to commence a special proceeding pursuant to Article 4 of the CPLR. PHL § 2992(1) and (3).
While a health care provider has a legal obligation to comply with an agent's decisions, it does not necessarily follow that an agent has a cause of action for money damages when a provider does not comply with her decision.
A health care agent has standing to seek equitable and injunctive relief to force a provider to comply with the its obligations under PHL 2984(2) to honor the agent's decisions. However, the right to seek monetary damages for a failure to comply with an agent's decisions lies with the principal, not the agent. Cherry v Hillside Manor Rehab. Extended Care, 2008 WL 2559378 (EDNY June 20, 2008); DeCintio v Lawrence Hospital, 299 AD2d 165, 753 NYS2d 26 (1st Dept. 2002).
Plaintiff argues that the decision in DeCintio is distinguishable because it involved a claim of medical malpractice. However the court in DeCintio also dismissed the health agent's claim for emotional distress and loss of earnings he suffered. Among the grounds upon which the court dismissed the agent's claims were that "Public Health Law Article 29-C contains no provision permitting recovery by a health care proxy for his individual emotional or pecuniary damages, and none may be judicially engrafted." DeCintio supra at 165, 26.
Plaintiff also contends that in an earlier discovery motion in this action, Justice Partnow found that Plaintiff had stated a valid cause of action against VNS for injuries she sustained from VNS's violation of the Public Health Law. However, Justice Partnow's decision does not contain such a finding. Justice Partnow simply noted that Plaintiff limited her claims to injuries she suffered, as opposed to any injuries suffered by her mother. Verponi v City of New York, 16 Misc 3d 1105(A), 2007 WL 1840852 (Su Ct Kings Co. 2007)
In this case, Plaintiff seeks damages for physical injuries she suffered directly, and for alleged unlawful detention of her person, as well as violations of her constitutional rights not to be unlawfully detained or be subjected to excessive force.
These claims differ from those in DeCintio, in that the Plaintiff in DeCintio sought damages that were caused by injury to his mother. Specifically, he claimed he suffered emotional distress and loss of income as a result of witnessing the effects of the defendants' inadequate treatment of his mother.
Plaintiff herein seeks damages for injuries she claims she suffered directly by Defendants' treatment of herself. Specifically, that she was unlawfully detained and physically injured by Defendants, pulling her from her mother's bed, dragging her across the floor and handcuffing her.
The only claims against VNS and GITTENS are in the first cause of action for false imprisonment. However, as a matter of law, the acts of Defendants GITTENS and VNS were not a proximate cause of Plaintiff's detention. The sole action taken by GITTENS was to call 911. She left the apartment before either EMS or the police arrived. VNS would be liable only upon a theory of respondeat superior.
Even if GITTENS violated PHL 2984(2) by calling 911 over Plaintiff's objection, that act was not a cause of Plaintiff's unlawful detention. GITTENS took no part in the physical removal and handcuffing of Plaintiff, nor in the decision to forcibly transport her to Maimonides Hospital. Although Plaintiff did not assert her battery claim against the VNS defendants, GITTEN's calling 911 was not a proximate cause of her physical injuries either. Accepting Plaintiff's allegations as true, the actions of the police officers were an independent, superceding cause of her injuries. Therefore, the cause of action against GITTENS and VNS should be dismissed.
NYPD, FDNY EMS
The City has moved to dismiss the complaint as against the NEW YORK CITY POLICE DEPARTMENT, and THE NEW YORK CITY FIRE DEPARTMENT EMERGENCY MEDICAL SERVICES. As the City correctly points out, those entities are simply departments of the Defendant CITY OF NEW YORK, and can not be sued separately pursuant to Section 396 of the New York City Charter.
J. DOE
The City also moves to dismiss the complaint as a against J. DOE who is described in the complaint as an employee of EMS, on the grounds that Plaintiff has never identified the J. DOE.
There were three employees of EMS were present in Plaintiff's home at the time of the incident, Lt. Wing, EMT Rios, and EMT Jackson. Plaintiff has never specified which of the three she claims to be the J. DOE who injured her. None of the pleadings or any of the depositions offer any clue as to which of the three EMTs present was J. DOE.
Having never amended the pleadings to identify which of the three EMT's present was J. DOE, Plaintiff's claims against J. DOE must be dismissed.
NOTICE OF CLAIM
The City moves to dismiss Plaintiff's state law claims against SGT SWANSON, PO BOTTA, and PO PATE on the grounds that the notice of claim filed by Plaintiff did not identify the officers by name.
The notice of claim stated that on March 4, 2003 at around 10:30 pm, at 1704 78th Street Brooklyn, New York, Plaintiff was assaulted and falsely arrested by Police Officers employed by the City of New York. It further alleges that she was wrestled to the ground, handcuffed, transported to Maimonides Hospital against her will and handcuffed to a medical bed.
The test of sufficiency of the contents of a notice of claim is whether it includes enough information for a municipality to investigate the claim. Brown v City of New York, 95 NY2d 389, (2000); Palmieri v NYCTA, 288 AD2d 361, 733 NYS2d 127 (2nd Dept. 2001); Schwartz v City of New York, 250 NY 332 (1929).
While the text of GML § 50-e specifically requires the name of the claimant, it does not require the names of the employees against whom the claims are asserted. It only requires the time and place of the incident, but only the nature of the claim.
This issue is not whether the police officers were identified by name in the Notice of Claim, but whether they were described sufficiently for the City to be able to investigate the claim.
The cases cited by the City do not actually establish a requirement that the officers be identified by name. The court in Tannenbaum v City New York, 30 AD3d 357, 819 NYS2d 4, (1st Dept. 2006), held that an action can not be commenced against an individual who has not been named in the notice of claim, citing the case of White v Averill Park Central School District, 195 Misc 2d 409, 759 NYS2d 641 (Su Ct Rennselear Co. 2003). However, the decision is silent as to whether the two individuals were identified in any manner in the notice of claim.
In White v Averill, the notice of claim named the municipality but failed to contain any allegations against the individual defendants. The court tied the need to name the individual employee to enabling the municipality to be able to investigate, holding,
"Where the notice of claim fails to complain about the action or inaction of a particular employee and/or fails to set forth a theory for imposing liability on that employee, the municipality has no basis for investigating whether or not the claimant has a valid claim against that employee." Id. at 411-412, 642-643.
It is clear given the nature of the incident, and the fact that Plaintiff was taken in custody to Maimonides, that the City would have had no difficulty determining the names of the officers described in the notice of claim. The notice listed the date, time and place of the incident It also gave a sufficiently detailed description on the incident and the nature of Plaintiff's claims to enable the City to identify the officers involved and investigate her claims.
The City also cites the decisions in DeGradi v Coney Island Medical Group PC 172 AD2d 582, 568 NYS2d 412 (2nd Dept 1991) and Diggs-White v City of New York, 306 AD2d 371, 760 NYS2d 886, (2nd Dept. 2003) for the proposition that the failure to identify individual defendants by name in the notice of claim operates as a statute of limitations bar to commencing an action against them. However, these cases do not hold that individual municipal employees must be named within the ninety period to file a notice of claim, in fact those cases do not involve the notice of claim requirements. What those cases hold is that the one year and ninety day statute of limitations for actions against municipalities applies to individual municipal employees.
Failure to Plead a cause of action
The City further seeks to dismiss Plaintiff's claims pursuant to 42 USC § 1983. Plaintiff's third cause of action seeks damages against the CITY of NEW YORK and the three individual police officers for violations of her rights under the United States Constitution.
Plaintiff begins her third cause of action by repeating, reiterating and realleging all the allegations previously set forth in the complaint. The facts alleged in paragraphs one through twenty three of the complaint, described more fully above in the statement of facts, are sufficient to plead a cause of action under § 1983.
The fact that the complaint does not cite a specific constitutional provision alleged to have been violated is not fatal a pleading defect. The complaint alleges that the Defendants, acting under color of law, violated her rights under the United States Constitution. Both the complaint and the Bill of Particulars allege that the Plaintiff was unlawfully detained and that the police officers used excessive force against Plaintiff. These allegations together with the facts alleged were sufficient to plead a claim under § 1983 for violation of Plaintiff's rights under the US constitution to be free from unreasonable seizure and not to be subjected to excessive force.
Additionally, the first cause of action in the complaint contains a vague allegation that the Defendants' negligence caused injury to the Plaintiff. However, that allegation is conclusory and the complaint does not allege any facts which would support a claim of negligence.
In response to item 15 of the City's demand for a bill of particulars which asked Plaintiff to state the acts constituting negligence, Plaintiff responded that Defendants negligently disregarded the directions of an individual with a right to refuse treatment and tortuously interfered with the relationship between the physician and surrogate with proxy. Putting aside whether such a claim is actionable by the agent, it does not sound in negligence. The other claims raised by Plaintiff, namely false arrest and excessive force, are intentional and constitutional torts; they are not based on negligence. By reason of the foregoing Plaintiff has not sufficiently pled a cause of action based on negligence.
Probable Cause
The City argues that Plaintiff's state and federal claims based on her detention and excessive force should be dismissed because the officers had probable cause to detain her.
Plaintiff's state claims for false arrest, and that part of her § 1983 claim that is based on unreasonable seizure, arise from two separate incidents. The first was her removal from her mother's bedside and her being handcuffed while in the apartment. The second was her being transported to Maimonides Hospital against her will. These two parts of Plaintiff's false arrest and unreasonable seizure claims require separate analysis.
Plaintiff was removed from her mother's bedside and handcuffed while in the apartment to prevent her from interfering with the EMTs treatment of her mother. The Plaintiff's position is that as her mother's health care agent, she had a right to prevent EMS from treating her mother.
The City's position is that health proxies are not valid outside of a hospital setting and that in this case, Plaintiff was not empowered as her mother's agent because there had not been a written determination by her mother's attending doctor that her mother was incapable of making medical decisions. The City maintains that since Plaintiff had not been empowered as her mother's agent at the time of the incident, her interference with the treatment of her mother was a violation of Penal Law Section 195.16. Therefore, the police officers had a right to detain Plaintiff and use physical force to prevent her from interfering with her mother's treatment.
Penal Law Section 195.16 makes it unlawful for a person to intentionally and unreasonably obstruct the efforts of any medical service technician or personnel in the performance of their duties.
If, under the circumstance present, Plaintiff had a right to forbid EMS from treating her mother, then her obstruction was not unreasonable and the technicians were not strictly acting in their performance of her duties. If, on the other hand, she did not have a right to forbid EMS from treating her mother, then her actions violated section 195.16. Stein v Nassau, 642 F Supp 2d 135 at 140.
Thus, while the refusal to honor the health care proxy is not itself a claim by Plaintiff, whether the City had probable cause to restrain Plaintiff in her apartment turns on whether it had an obligation to honor the proxy at the time of the incident.
There is nothing in Article 29-C of the PHL that specifically limits the effectiveness of health care proxies to a hospital setting. In a case of apparent first impression the United States District Court for the Eastern District held that New York's Health Care Proxy Statute (Article 29-C of the PHL) is not limited to hospital settings but applies everywhere Id. at 142.
The Second Circuit reversed, in part the District Court decision in Stein, but on the grounds that the officers involved in that case were entitled to qualified immunity because the patient's rights under the health care proxy statute were not clearly established at the time of the incident. Stein ex. re Stein, 2011 WL 1332052 (2nd Cir. NY April 8 2011) The Second Circuit acknowledged the District Court's holding that a health care proxy was valid outside a hospital setting, but did not disturb it. Id.
There appear, however, to be no cases interpreting whether the requirement in PHL § 2983 that a doctor make a written determination that a patient lacks capacity in order to empower a health care agent to act, applies to non hospital settings where a patient is non-responsive.
The District Court decision in Stein did not address the issue of whether a written determination of incapacity by a physician was required, but appeared to have assumed the patient's incapacity from his unresponsiveness at the scene.
Although, the Second Circuit questioned whether a written determination of incapacity by a doctor was necessary before the proxy could become effective, they did not decide that issue. The court stated that if it was necessary to determine that issue, it "might feel compelled to certify the issue to the New York Court of Appeals", but that it did not have to reach the issue because the individual defendants were entitled to qualified immunity. Stein ex re Stein 2011 WL 1332052 (2nd Cir. NY April 8 2011) .
It is clear under New York Law that a patient has the right to refuse medical treatment, even from EMS. Stein v Nassau 642 F Supp 2d 135. Section 2982(1) of the PHL provides that " . . . an agent shall have the authority to make any and all health care decisions that the principal could make".
Section 2983 of the PHL requires a written determination by a doctor that a patient is not capable of making health care decisions but does not require that the incapacity be of a permanent nature.
However, in a case such of the present, where a patient is non-responsive, there is no question that they lack the capacity to make health care decisions. Emergency medical providers can not effectively provide a non-responsive patient with information needed to make an informed decision as to medical treatment, nor can a non-responsive patient communicate any decision to the provider.
It must be remembered that the purpose of the Health Care Proxy Statute is to allow patients to appoint agents to make health care decisions for them when they are incapable of making or communicating decisions themselves.
The purpose of the requirement of a written determination of lack of capacity is to ensure that a patient is not deprived of their right to make their own health care decisions where they are still able to do so, not to ensure that a patient receive emergency treatment.
To interpret Section 2983 to deny empowerment of an agent in a situation where the patient is non-responsive would nullify a patient's right to choose who will make health care decisions for them in such situations. It would transfer the decision making authority from the patient's chosen agent, to a health care provider, who in most cases, would have no prior knowledge of the patient or their history and would have no knowledge of what the patient's treatment preferences might be.
It must also be borne in mind in this context that a health care agent's authority is not unlimited. PHL § 2982(1) provides that an agent make decisions.
"(a) in accordance with the principal's wishes and the principal's religious and moral beliefs; or (b) if the principal's wishes are not reasonably known, and cannot with reasonable diligence be ascertained, in accordance with the principal's best interests;"
Where the patient is unresponsive in a non-hospital setting, an agent's authority extends to refusing such treatment that the patient has indicated that they would have refused themselves, or such treatment that the plaintiff's beliefs would allow a reasonable basis to infer that they would have refused.
There is a question of fact whether Dr. Koutros made a written determination that Plaintiff's mother lacked capacity to make health care decisions. Even if Dr. Koutros did not make a written determination, that would not bar Plaintiff from being empowered as her mother's agent, if the mother was non-responsive and could not at that point make any decision whether to refuse or accept treatment by EMS.
Thus, there remains a question of fact as to whether Plaintiff had a right to interfere with the EMTs treatment of her mother and consequently whether the police officers had a right to restrain Plaintiff in the apartment. The issue of whether the officers are entitled to qualified immunity for the decision to restrain her is discussed below.
Probable Cause to Transport Plaintiff to Hospital
The decision to involuntarily transport Plaintiff to Maimonides Hospital must be considered separately. That decision was made not to prevent Plaintiff from interfering with treatment of her mother, who had already been taken, but based on a determination that Plaintiff was a danger to herself and others.
The City moves for summary judgment as to those parts of Plaintiff's state claim and 1983 claim based on false imprisonment/ unlawful seizure on the grounds that the officers had probable cause to detain Plaintiff.
The cases cited by the City in support of this point all involved claims of false arrest. However, Plaintiff was not arrested for violating Penal Law 195.16 or any other crime or violation, but was involuntarily taken to the hospital because she was deemed a danger. The test to be applied is not whether there was probable cause to arrest the Plaintiff for a crime or violation, but whether the officers had a reasonable objective basis to believe that Plaintiff was a danger to herself or others.
Similar to a false arrest analysis, there is no false imprisonment where the officer, in transporting Plaintiff to the hospital, acted reasonably and in good faith, even if it turn out he was mistaken.
There remain questions of fact whether under these circumstances there was a reasonable basis for the officers to believe, Plaintiff was a danger to herself or others after her mother had already been taken to the hospital.
Qualified Immunity for the Individual Police Officers
The City argues that the individual police officers are entitled to qualified immunity from Plaintiff's § 1983 claims.
Government employees have a qualified immunity from liability for acts taken in performing their official functions where their actions do not violate clearly established statutory or constitutional rights. Harlow v Fitzgerald, 457 US 800 (1992); Anderson v Creighton, 483 US 635 (1987).
Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the rules that were clearly established at the time it was taken. Wilson v Layne, 526 US 603 (1999); United States v. Lanier, 520 U.S. 259 (1997).
Thus, even if Plaintiff was empowered as her mother's agent at the time of the incident, the police officers are entitled to qualified immunity as to Plaintiff's claim that being removed from her mother's bedside and handcuffed while in her home, was an unconstitutional seizure, because her right to forbid emergency treatment of her mother was not clearly established at that time.
To begin with, the statute is not clear on its face as to whether health care proxies are limited to a hospital setting. The first case which dealt with the question of whether a health care proxy was valid outside a hospital, Stein v County of Nassau, 642 F. Supp 2d 135, was not decided until 2009.
On appeal the Second Circuit held that the individual police officers were entitled to qualified immunity from Plaintiff's § 1983 claims because her right to act as health care agent outside of a hospital setting had not been clearly established at the time of the incident. Stein ex re Stein 2011 WL 1332052 (2nd Cir. NY April 8 2011) .
Similarly, in the present case there had been no determination at the time of the incident that the Section 2982 requirement that a doctor certify the a patient was incapable of making health care decisions, did not apply where a patient was non-responsive.
In this case, SGT SWANSON, PO BOTTA and PO PATE are entitled to qualified immunity from Plaintiff's § 1983 claims based on the physical seizure of Plaintiff in her home, because her right to prevent treatment of her mother at the scene was not clearly established at the time of the incident in 2003.
Removal of Plaintiff to Maimonides Hospital
The question of whether the involuntary transport of Plaintiff to Maimonides Hospital constituted an unreasonable seizure is not dependant on Plaintiff's authority as her mother's health care agent. Once Plaintiff was handcuffed in her apartment, and her mother already transported to the hospital, the decision to transport Plaintiff to the hospital was made based on SGT SWANSON's determination that Plaintiff was a danger to herself and others.
The first step of an qualified immunity inquiry is whether Plaintiff's constitutional rights were violated and if so, whether the constitutional right was clearly established. Saucier v Katz, 533 US 194, 121 S.Ct 2151. Here there is a question of fact whether, once her mother had been transported, a reasonably objective person would have believed Plaintiff was a danger to herself or others.
As to the second step of the qualified immunity analysis, the due process right not to be involuntarily taken to the hospital, unless one is a danger to oneself or others, was clearly established at the time. Therefore, because there are questions of fact as to whether a reasonably objective officer would have had reason to believe that Plaintiff was a danger to herself or others, the police officers are not entitled to qualified immunity from that part of Plaintiff's § 1983 claim that is based on her involuntary transport to the hospital.
§ 1983 Excessive force claim
The Individual defendants are not entitled to qualified immunity from that part of Plaintiff's § 1983 claim that is based the allegation of excessive force. Even if the seizure was lawful, Plaintiff has a clearly established constitutional right not to be subjected to excessive force. There is a question of fact as to whether the force used to restrain the 68 year old Plaintiff, which is alleged to have resulted in bruising, a rotator cuff tear, and lost range of motion in both arms, was excessive under the circumstances .
City of New York and the § 1983 claims
The City moves to dismiss Plaintiff's § 1983 claims against it on the grounds that there is no evidence that the City had a policy or procedure that violated Plaintiff's constitutional rights.
A municipality can not beheld liable under § 1983 on the basis of respondeat superior, but can only be held liable if the conduct complained of was the result of an official policy, Monell v Dept. of Social Services, 436 US 658, 98 Sct 2018 (1978) or governmental custom. Jackson v Police Dept. Of the City of New York, 192 AD2d 641,596 NYS2d 457 (2nd Dept. 1993).
Here, Lt. Wing admitted the City's EMS had a policy not to honor health care proxies except in a hospital setting. However, the constitutional rights alleged to have been violated were Plaintiff's right to be free from unreasonable seizure and being subjected to excessive force, not the refusal to honor the proxy.
While the validity of the health care proxy is relevant to Plaintiff's right to interfere with EMS's treatment of her mother, and consequently the police officers basis for restraining her, the failure to honor the proxy did not violate any constitutional rights of Plaintiff as agent. The constitutional violation, if any, was of Plaintiff's mother's due process rights, under the PHL, to have an health care agent make decisions for her.
There is no evidence that City had a policy of restraining health care agents who interfered with treatment by EMS or to forcibly transport them to a hospital. Nor was there any evidence that there was a City policy or practice to use excessive force against health care agents who attempted to prevent treatment by EMS. The officers' actions were based on an exercise of discretion in response to events at the scene, not on an implementation of a City policy or practice.As such, the Plaintiff's § 1983 claims against the City as a municipality must be dismissed.
Qualified Immunity of Individual Defendants from State Law Claims
The doctrine of qualified immunity is generally understood to only protect government officials from federal, not state, causes of action. Jenkins v. City of New York, 478 F.3d 76, 86 (2d Cir. 2007).
However New York law grants government officials immunity from state law claims except where the officials actions are undertaken without a reasonable basis or in bad faith. Jones v. Parmley, 465 F.3d 46, 63 (2d Cir. 2006), Blouin ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 364 (2d Cir. 2004)
As to State claim for false imprisonment, the protections of qualified immunity are incorporated in the element of the cause of action that requires Plaintiff to show that the imprisonment was not privileged.
To be entitled to immunity, it must be established that it was objectively reasonable for the police officers involved to believe that their conduct was appropriate under the circumstances, or that officers of reasonable competence could disagree as to whether their conduct was proper. 5 Borough Pawn LLC v City of New York, 640 F Supp 2d 268, (SDNY 2009); Allen v. City of New York, 03 Civ. 2829, 2007 WL 24796, (SDNY 2007).
Like her 1983 claim for unreasonable seizure, Plaintiff's state law claim for false imprisonment is based on two set of allegations. The first is that the police officers physically removed her from her mother's bedside and dragged her across the floor, yanked her arms, put in a chair and handcuffed her.
As discussed more fully above, the reasonableness of restraining Plaintiff to prevent her from interfering with the EMT's treatment of her mother depends on whether Plaintiff had a right under the circumstances, as health care agent, to prevent the treatment of her mother. At the time there was a lack of clarity under New York Law as to whether a health care proxy was valid outside a hospital setting, and whether a written determination of incapacity to make health care decisions was required under the PHL. Therefore reasonable officers could disagree as to whether they were authorized to prevent Plaintiff from interfering with the treatment of her mother.
The individual police officers are thus entitled to immunity from that part of Plaintiff's state law claim for false imprisonment which is based on removing her from her mother's bedside and handcuffing her in her home.
However, while the individual police officers are entitled to immunity, the Defendant City of New York is not immune from such state law claims, and may still be liable for the police officers' actions pursuant to doctrine of respondeat superior.
The second part of Plaintiff's state law claim for false imprisonment is based on her involuntary transport to Maimonides hospital.
Normally, the test for false imprisonment is whether the officers had what is termed "arguable probable cause" to believe a crime was committed. If officers of reasonable competence could disagree as to whether there was probable cause to arrest, an officer is entitled to immunity for their decision. Escalera v Lunn, 361 F3d 737, (2nd Cir. 2004); 5 Borough Pawn LLC v City of New York, 640 F Supp 2d 289 (SDNY 2009).
However, Plaintiff was not arrested, but was taken involuntarily to Maimonides Hospital based on the officer's determination that she was a danger to herself and others. The fact that there may have been arguable grounds to arrest Plaintiff for violation of Penal Law § 195.16 can not be a basis for immunity where the officers did not arrest her.
The test in this case is whether there was a arguable objective basis for the officers to believe that Plaintiff was a danger to herself or others.
Based on the various versions of the incident, it is an open question as to whether there was an arguable, objective basis for the officers to believe that after her mother was taken to the hospital, Plaintiff was a danger to herself or others.
There are several issues of fact, such as whether Plaintiff slapped one of the officers, whether Plaintiff threw herself on the floor or was dragged on the floor, and whether the officers refused to let Plaintiff get clothes or the Plaintiff refused to allow the home attendant to get clothes.
The fact that there are questions of fact as to what occurred at the scene does not necessarily mean that there was an arguable basis to involuntarily transport Plaintiff.Whether officers of reasonable competence could disagree as to whether Plaintiff was a danger is a different issue from whether the litigants allege contradictory factual versions of what happened.
Even though the standard of "arguable probable cause" allows more latitude to an officer's discretion, it is still an objective standard. The test is not what the officers at the scene believed but whether officers of reasonable competence would have believed Plaintiff was a danger or could have disagreed about whether she was.
If a trier of fact were to accept Plaintiff's version as to what occurred, then they could reasonably find that there was not even an arguable basis for an officer of reasonable competence to conclude the Plaintiff was a danger.
Therefore, the individual officers are not entitled to immunity as to Plaintiff's state claim for false imprisonment based on the police officers involuntarily transporting her to the Maimonides Hospital.
Plaintiff's claim for Battery
The City moved to dismiss Plaintiff's second cause of action for battery on the grounds that the use of force was privileged because the officers had probable cause to arrest Plaintiff, and because the force they used was not excessive. Plaintiff's second cause of action seeks damages for battery alleged to have been committed by the individually named police officers.
They are entitled to immunity from a cause of action for battery to the extent that the use of force is privileged when a mentally ill person is restrained to prevent harm to themselves or others. PJI 3:4
As with any privileged use of force committed in the performance of a public duty, the degree of force must be reasonable and necessary under the circumstances at the time. Jones v State, 33 NY2d 275, 352 NYS2d 169 (1973); Stein v State, 53 AD2d 988, 385 NYS2d 874 (3rd Dept. 1976). This is so whether or not the imprisonment or restraint itself was justified.
The standard of whether the force was excessive is one of objective reasonableness, based on the perspective of a reasonable officer at the scene. Graham v O'Connor, 490 US 386 (1989); Vizzrari v Hernandez 1 AD3d 431, 766 NYS2d 883 (2nd Dept. 2003).
Whether the force used was excessive requires an analysis of the facts of the particular case, ( Id., at 432), and is generally a question for the jury. Woods v New York, 29 AD2d 550, 285 NYS2d 149, (2nd Dept. 1967), aff'd 23 NY2d 934.
In this case it can not be said as a matter of law that the force used was not excessive. If a trier of fact were to accept the Plaintiff's version of what occurred, they could reasonably conclude that they force used to restrain her was not reasonably appropriate under the circumstances.
Release of Plaintiff's mothers Hospital Records
Lastly, the City seeks release of the records of Plaintiff's mother's treatment at Maimonides Hospital. As Plaintiff's mother's estate is not a plaintiff in this action the mother's privacy rights under HIPAA have not been waived.
As Plaintiff's claims are only for injuries she suffered, her mother's medical condition is not at issue. Even as to Plaintiff's claims for false imprisonment, that hinge on whether she had a right as health care agent to prevent treatment of her mother, the diagnosis and treatment of her mother after she was taken to Maimonides is not material. It is the mother's condition at the scene and the extent she was non-responsive that is relevant to whether Plaintiff had a right as health care agent to interfere with treatment.
Similarly, her mother's condition has no bearing on Plaintiff's claims arising from being involuntarily transported to Maimonides, or her battery and excessive force claims.
There is therefore no basis to order Maimonides to turn over records relating to Plaintiff's mother.
WHEREFORE, the motion of Defendants GITTENS and VNS for summary judgment is granted, and the City Defendants' motion to dismiss is granted as to Defendants NEW YORK CITY POLICE DEPARTMENT, THE NEW YORK CITY FIRE DEPARTMENT EMERGENCY MEDICAL SERVICES, and J. DOE; and granted as to that part of Plaintiff's claim for false arrest based on her restraint in her home, as against the individual police officers; and granted as to that part of Plaintiff's § 1983 claims based on her restraint in her home, as against the individual police officers; and granted as to all of Plaintiff's § 1983 claims against THE CITY OF NEW YORK; and denied as to that part of Plaintiff's state claim for false arrest based upon her restraint in her home, as against THE CITY OF NEW YORK; and denied as to that part of Plaintiff's state claim for false arrest based on her involuntary transport to Maimonides Hospital; and denied as to Plaintiff's claim for battery; and denied as to Plaintiff's § 1983 claims based on being involuntarily transported to Maimonides Hospital as against the individual police officers; and denied as to Plaintiff's § 1983 claims based on being subjected to excessive force, as against the individual police officers; and the CITY OF NEW YORK's motion for release of records of Plaintiff's mother's treatment at Maimonides Hospital is denied; and it is hereby,
ORDERED, that the complaint is dismissed in its entirety as to Defendants VISITING NURSE SERVICES OF NEW YORK INC., PAULA GITTENS, NEW YORK CITY POLICE DEPARTMENT, THE NEW YORK CITY FIRE DEPARTMENT EMERGENCY MEDICAL SERVICES, and J. DOE; and it is further,
ORDERED, that that part of Plaintiff's first cause of action for false arrest based on her restraint in her home is dismissed as against the SGT. SWANSON, PO BOTTA and PO PATE; and it is further,
ORDERED, that that part of Plaintiff's third cause of action pursuant to § 1983 based on her restraint in her home, is dismissed as against SGT. SWANSON, PO BOTTA and PO PATE, and it is further,
ORDERED, that Plaintiff's third cause of action is dismissed in its entirety as against THE CITY OF NEW YORK.
This constitutes the decision and order of the Court.