Kevin Kowalski, Appellant,v.St. Francis Hospital and Health Centers, et al., Respondents, et al., Defendants.

Brief

N.Y.May 28, 2013

To be Argued by: JUDY C. SELMECI (Time Requested: 30 Minutes) Dutchess County Clerk’s Index No. 6848/07 Appellate Division, Second Department Docket No. 2011-06243 Court of Appeals of the State of New York   KEVIN KOWALSKI, Plaintiff-Appellant, – against – ST. FRANCIS HOSPITAL AND HEALTH CENTERS, CHANDRA CHINTAPALLI, M.D. and EMERGENCY PHYSICIAN SERVICES OF NEW YORK, INC., Defendants-Respondents, – and – JOHN DI RUSSO and TEAM HEALTH, INC., Defendants. BRIEF FOR DEFENDANT-RESPONDENT CHANDRA CHINTAPALLI, M.D. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Attorneys for Defendant-Respondent Chandra Chintapalli, M.D. 150 East 42nd Street New York, New York 10017 Tel.: (212) 490-3000 Fax: (212) 490-3038 Date Completed: January 3, 2013 i TABLE OF CONTENTS Page Preliminary Statement ................................................................................................ 1 Summary of Argument............................................................................................... 1 Counter-Statement of the Questions Presented ......................................................... 3 Statement of Facts ...................................................................................................... 4 Relevant Legislative History ...................................................................................... 8 Argument I Dr. Chintapalli Had No Authority under the Mental Hygiene Law to Detain the Plaintiff since the Plaintiff Came to the Hospital Voluntarily ................................................................................................ 15 A. Article 22 of the Mental Hygiene Law Authorizes the Involuntary Detention of an Intoxicated Person only Where the Person was Brought to the Hospital Involuntarily by a Peace Officer or Police Officer ................................................................................................ 15 B. Even if the Plaintiff Had Been Brought to the Hospital Involuntarily, Dr. Chintapalli Would Have Had No Authority to Detain Him for His Own Good.......................................................... 22 II A Physician Has No Common Law Duty or Authority to Detain an Intoxicated Person Involuntarily .............................................................. 29 III Dr. Chintapalli Had No Duty to the Plaintiff because the Plaintiff Had Terminated the Physician-Patient Relationship ....................................... 37 ii IV Dr. Chintapalli’s Decision not to Detain the Plaintiff was an Exercise of Professional Judgment for which He Cannot Be Liable, even if His Judgment was Inconsistent with Hospital Protocols ................................ 40 Conclusion ................................................................................................... 43 iii TABLE OF AUTHORITIES Page(s) Cases: Addington v. Texas, 441 U.S. 418 (1979) .................................................... 24 Barbier v. Connolly, 113 U. S. 27 (1884) .................................................... 28 Bates v. Lang, 26 A.D.2d 462 (1st Dep’t 1966) .......................................... 18 Blythe v. City of New York, 119 A.D.2d 615 (2d Dep’t 1986) .................... 37 Brown v. Metropolitan Transit Authority, 281 A.D.2d 159 (1st Dep’t 2001) ........................................................................................ 42 Browne v. City of New York, 213 A.D. 206 (1st Dep’t 1925), aff’d, 241 N.Y. 96 (1925) ......................................................................... 8n.1 Cartier v. Long Island College Hosp., 111 A.D.2d 894 (2d Dep’t 1985) ... 31 Conrad v. County of Westchester, 259 A.D.2d 724 (2d Dep’t 1999) .......... 42 D’Amico v. Christie, 71 N.Y.2d 76 (1987) .................................................. 30-31 Darby v. Compagnie National Air France, 96 N.Y.2d 343 (2001) ............. 30 Darren v. Safier, 207 A.D.2d 473 (2d Dep’t 1994) ..................................... 40 Davis v. Patel, 287 A.D.2d 479 (2d Dep’t 2001) ........................................ 41 Emmerich v. Thorley, 35 A.D. 452 (1st Dep’t 1898) .................................. 36 Engelhart v. County of Orange, 16 A.D.3d 369 (2d Dep’t 2005) ............... 31 Fiederlein v. City of New York Health & Hosps. Corp., 80 A.D.2d 821 (1st Dep’t 1981) ............................................................... 40 Foucha v. Louisiana, 504 U.S. 71 (1992) .................................................... 24 Freeman v. St. Clare’s Hosp., 156 A.D.2d 300 (1st Dep’t 1989) ............... 35 Freeman v. St. Clare’s Hospital, 156 A.D.2d 300 (1st Dep’t 1989) ........... 40 iv Galindo v. Town of Clarkstown, 2 N.Y.3d 633 (2004) ................................ 30 Garofalo v. State of New York, 17 A.D.3d 1109 (4th Dep’t 2005), lv. denied 5 N.Y.3d 707 (2005) ................................................................ 37 Gilliard v. Sanchez, 219 A.D.2d 500 (1st Dep’t 1995) ............................. 22, 23, 24 Glass v. Mayas, 984 F.2d 55 (2d Cir. 1993) ................................................ 21 Glass v. Mayas, 984 F.2d 55 (2d Cir. 1993) ................................................ 27 Haymon v. Pettit, 9 N.Y.3d 324 (2007) ....................................................... 30 Heller v. Peekskill Community Hosp., 198 A.D.2d 265 (2d Dep’t 1993) ... 38 Horton v. Niagara Falls Mem. Hosp., 51 A.D.2d 152 (4th Dep’t 1976) .... 35 In re Prime’s Estate, 136 N.Y. 347 (1893) .................................................. 18 Kesselbrenner v. Anonymous, 33 N.Y.2d 161 (1973) ................................. 19 Lauer v. City of New York, 95 N.Y.2d 95 (2000) ........................................ 30 Lawlor v. Lenox Hill Hosp., 74 A.D.3d 695 (1st Dep’t 2010), lv. denied 15 N.Y.3d 719 (2010) .............................................................. 16, 27 Lee v. City of New York, 162 A.D.2d 34 (2d Dep’t 1990) ........................... 37 Marabello v. City of New York, 99 A.D.2d 133 (2d Dep’t 1984) ................ 39 Martino v. Salzman, 18 N.Y.3d 905 (2012) ................................................. 31 Matter of Edward L., 137 A.D.2d 818 (2d Dep’t 1988) .............................. 23 Matter of Harry M., 96 A.D.2d 201 (2d Dep’t 1983) .................................. 23, 24 Matter of K.L., 1 N.Y.3d 362 (2004) ........................................................... 21 Matter of Rueda v. Charmaine D., 17 N.Y.3d 522 (2011) .......................... 33 Matter of Torres, 166 A.D.2d 228 (1st Dep’t 1990) ................................... 27 Matter of Torsney, 47 N.Y.2d 667 (1979) ................................................... 26 Miller v. Sullivan, 314 A.D.2d 822 (3d Dep’t 1995) ................................... 38 v Moore v. Mausert, 49 N.Y. 332 (1872) ....................................................... 18 Mugler v. Kansas, 123 U.S. 623 (1887) ...................................................... 28 N.X. v. Cabrini Medical Center, 97 N.Y.2d 247 (2002) .............................. 35 N.X. v. Cabrini Medical Center, 97 N.Y.2d 247 (2002) .............................. 40 Narcotic Addiction Control Commission v. James, 22 N.Y.2d 545 (1968) ............................................................................... 20 Narcotic Addiction Control Commission v. James, 22 N.Y.2d 545 (1968) ............................................................................... 33 Ordway v. St. Saviour’s Sanitarium, 34 A.D. 363 (1st Dep’t 1898) ................................................................................ 20, 21, 22, 28 Outlet Embroidery Co. v. Derwent Mills, 254 N.Y. 179 (1930) ................. 8n.1 Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579 (1994) .............. 30 Parvi v. City of Kingston, 41 N.Y.2d 553 (1977) ........................................ 34 People v. Ewer, 141 N.Y. 129 (1894) .......................................................... 28 Pilgrim v. Quick, 34 A.D.2d 562 (2d Dep’t 1970) ...................................... 19 Project Release v. Prevost, 722 F.2d 960 (2d Cir. 1983) ............................ 27 Purdy v. Public Administrator of Westchester County, 72 N.Y.2d 1 (1988) ................................................................................... 31 Randall v. Bailey, 288 N.Y. 280 (1942) ...................................................... 18 Rex Paving Corp. v. White, 139 A.D.2d 176 (3d Dep’t 1988) .................... 8n.1 Rivers v. Katz, 67 N.Y.2d 485 (1986) .......................................................... 32 Rivers v. Katz, 67 N.Y.2d 485 ..................................................................... 21 Santos v. Unity Hosp., 301 N.Y. 153 (1950) ............................................... 35 Santos v. Unity Hospital, 301 N.Y. 153 (1950) ........................................... 40 Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125 (1914) ....................... 32 vi Schrempf v. State, 66 N.Y.2d 289 (1985) .................................................... 40 Scopes v. Shah, 59 A.D.2d 203 (3d Dep’t 1977) ......................................... 24 Soldal v. Cook County, 506 U.S. 56 [1992] ................................................. 21 Topel v. Long Island Jewish Medical Center, 55 N.Y.2d 682 (1981) ......... 41 Vitek v. Jones, 445 U.S. 480 (1980) ............................................................. 28 Walsh v. Town of Cheektowaga, 237 A.D.2d 947 (4th Dep’t 1997) ........... 34 Warner v. New York, 297 N.Y. 395 (1948) ................................................. 35, 36 Weinreb v. Rice, 266 A.D.2d 454 (2d Dep’t 1999) ..................................... 40 White v. Sheehan Mem. Hosp., 119 A.D.2d 989 (4th Dep’t 1986) ............. 35 Zimmerly v. Good Samaritan Hosp., 261 A.D.2d 614 (2d Dep’t 1999)...... 37 Zophy v. State of New York, 27 A.D.2d 414 (4th Dep’t 1967) .................... 35 Statutes: Mental Hygiene Law § 1.03(25) .................................................................. 16 Mental Hygiene Law § 22.09(e) .......................................................... 15, 16-17, 27 Mental Hygiene Law § 22.07 ....................................................................... 16 Mental Hygiene Law § 22.09(a)(2) ............................................................. 24 Mental Hygiene Law § 22.09(c) .................................................................. 14 Mental Hygiene Law § 22.09(d) .................................................................. 17 Mental Hygiene Law § 22.09(4)(e) ............................................................. 24 Mental Hygiene Law § 22.09(a)(3) ............................................................. 25 Mental Hygiene Law § 22.09 ....................................................................... 28 Preliminary Statement This brief is submitted on behalf of defendant-respondent Chandra Chintapalli, M.D., who respectfully requests that this court affirm the May 1, 2012 order of the Appellate Division, Second Department, which granted the defendants’ motion for summary judgment dismissing the complaint, reversing the May 25, 2011 order of the Supreme Court, Dutchess County (Sproat, J.). Summary of Argument The plaintiff was injured when he was struck by an automobile while crossing Route 9 in Dutchess County in an intoxicated condition. The issue presented by this appeal is whether Dr. Chintapalli, the physician who treated the plaintiff in the emergency room at St. Francis Hospital several hours earlier, can be held liable for the plaintiff’s injuries because he did not detain the plaintiff against his will when the plaintiff chose to leave the hospital. In these circumstances, however, Dr. Chintapalli can have no responsibility for the plaintiff’s injuries because he had no legal authority to detain the plaintiff and no duty as the plaintiff’s physician to do so. Even if Dr. Chintapalli had a duty to the plaintiff, his decision not to restrain the plaintiff constituted an exercise of professional judgment for which he cannot be held liable. There is no decisional law in New York that imposes a duty on a physician to “temporarily detain” an intoxicated patient, as the plaintiff claims here. 2 (Appellant’s Br. at 30.) The authority upon which the plaintiff relies in this regard all concerns the obligation of a police officer who has already detained an individual to do so in a safe manner or the obligation of a hospital to provide a safe environment within its facility. Neither is the issue here. The statutory authority by which a physician can involuntarily detain an intoxicated person does not extend to a person who has presented himself or herself voluntarily for treatment, even if the physician were to determine that treatment was medically appropriate. While there was authority, at one time, for two physicians, on the application of a family member, to retain an alcoholic in the hospital involuntarily for treatment, even where the patient had come to the hospital voluntarily for treatment, the Legislature repealed that portion of the Mental Hygiene Law in 1978, choosing instead to limit a physician’s authority to detain an intoxicated person to those persons who are brought to the hospital involuntarily by a police officer. Here, the plaintiff arrived at the emergency department voluntarily. He was intoxicated, but not mentally ill. As a result, Dr. Chintapalli had no authority under New York law to detain the plaintiff against his will and cannot be liable for deciding not to do so. Even if he had the legal authority to detain the plaintiff, however, Dr. Chintapalli had no duty to do so. Dr. Chintapalli had a duty to the plaintiff only so long as the plaintiff was his patient. The plaintiff severed that relationship by 3 announcing his decision to leave the emergency department (rather than waiting to go to a detoxification facility, as the hospital had arranged), calling a friend to pick him up at the hospital and then walking out of the hospital when the friend did not come as quickly as the plaintiff would have liked. Even if the physician-patient relationship had not been severed, however, and Dr. Chintapalli had had the authority to detain the plaintiff against his will, the decision not to do so was an exercise of professional judgment for which Dr. Chintapalli cannot be held liable. Dr. Chintapalli submits, therefore, that, for all of these reasons, the Appellate Division correctly granted summary judgment dismissing the complaint and its order should be affirmed. Counter-Statement of the Questions Presented (1) Where the legislature had once authorized physicians to detain intoxicated persons, but then limited that authority to persons brought for treatment involuntarily by police, may a physician nevertheless detain such an individual? No. If there is no statutory authorization for the detention, the plaintiff could not lawfully be detained. (2) Can a physician be liable for failing to detain an intoxicated person against his or her will when he has no authority to detain that person? No. There can be no duty where there is no authority. 4 (3) Is a physician obligated to restrain a patient who terminates the physician-patient relationship, announces his intention to leave and then walks out of the hospital? No. The physician owes no duty to the patient after the physician-patient relationship is terminated. (4) Can a physician be liable for exercising his or her professional judgment even where that judgment conflicts with a hospital’s internal policies and procedures? No. A physician’s duty is defined by the law, not by the hospital’s internal policies and procedures, and the law is that a physician is not liable for the exercise of professional judgment. Statement of Facts Plaintiff Kevin Kowalski is an alcoholic. (R. 206-207). He had sought and received detoxification treatment on numerous occasions, although he repeatedly relapsed. (R. 55, 203). For many years, he had engaged in repeated periods of binge drinking. (R. 206-207). In the days leading up to the events at issue, the plaintiff was drinking heavily again. (R. 233). On the morning of December 20, 2006, the plaintiff believed that he was in need of detoxification. (R. 234). His recollection is that he phoned his friend Jason 5 Herring and asked for a ride to the hospital. (R. 234). Mr. Herring’s recollection was slightly, though not materially, different. He affirmed, in opposition to the motions for summary judgment, that, on finding the plaintiff intoxicated two days in a row, he convinced him to going to the hospital to seek treatment. (R. 1262). In either event, the plaintiff went voluntarily to St. Francis Hospital in Poughkeepsie, where he was dropped off by his friend at about 11:20 a.m., and asked for detoxification. (R. 172). At the hospital, the plaintiff was seen by the nurses and was examined by Dr. Chintapalli. (R. 472-473). A physical examination and blood tests were done. (R. 171, 176). The plaintiff smelled of alcohol (R. 172) and was found to have a blood alcohol level of 0.369 (R. 176), but was alert and oriented, walked without staggering and expressed to the hospital staff his desire for detoxification. (R. 172- 173). Hospital staff began to look for an open spot in a detoxification program. By 3:40 p.m., Dr. Chintapalli had found a place for the plaintiff at a detoxification facility and the plaintiff was waiting to be picked up. (R. 167). By this time, however, the plaintiff had changed his mind. He declared his intention to leave the hospital and removed his intravenous line (which had been inserted but never used). (R. 167, 244). The staff suggested that he get a ride home if he wanted to leave, and he was observed making calls to arrange for transportation. (R. 167, 6 1263). Before anyone arrived to pick him up, however, he walked out. (R. 245). The staff notified the hospital’s security personnel and then went about its business of treating patients. (R. 167). The plaintiff’s recollection about the events that followed is hazy. He recalls that he walked to a strip mall where a friend worked, and which had a liquor store and a deli (as co-defendant DiRusso recalled), and he stayed near the dumpster at the strip mall for some time. (R. 250-251, 926-927, 934-935). Then he walked from there to Route 9 where, at 5:33 p.m., he was struck by a vehicle operated by co-defendant John DiRusso. The accident rendered the plaintiff quadriplegic. (R. 141). The plaintiff’s statement of facts mischaracterizes the record in several respects. The record belies the plaintiff’s suggestion that he was utterly incapable of rational thought or action. Based upon the plaintiff’s testimony, there is no question that he is what is commonly referred to as a “high-functioning alcoholic” – he was regularly able to go about his day-to-day life even when he had had quite a lot to drink. (R. 252). In fact, the plaintiff testified that he was able to work while in such condition. (R. 252). On the day of the accident, the plaintiff demonstrated his ability to understand what was happening around him, to rationally, though rudely, interact with people and to follow commands when he wished to do so. For example, when it was suggested that he call a friend to take him home from the 7 hospital, the plaintiff called Jason Herring. It is true that when Mr. Herring did not immediately comply, the plaintiff’s patience ran out (R. 1263). Impatience, however, is not incompetence. The plaintiff omits from his recitation of facts that he was alert and oriented, that he knew where he was and why, and that on arrival at the hospital he clearly expressed to the staff his desire for detoxification. (R. 172). He walked without staggering. (R. 173). He was not suicidal. (R. 213). He threatened no one. (R. 172). The plaintiff also mischaracterizes his mental state immediately before he left the hospital. He notes that he was heard to sound “agitated at 3:30” (that is, just before he left the hospital). (App. Br. at 28). He neglects to mention, however, that this was during the time that he was on the phone with Mr. Herring – and just as he came to find out that Mr. Herring was not going to drop everything to pick him up immediately. (R. 1263). The plaintiff also claims, incorrectly, that he was told that he would “have to” be taken home by a friend. (App. Br. at 42). In fact, Nurse Vacca’s testimony was that she had told him that she would “rather” have a friend bring him home which, after making a phone call, he assured her is what would happen. (R. 642-643). It is also more than dramatic license for the plaintiff to say that, as he was getting ready to leave the hospital, he “ripped” his intravenous line out and a nurse came “running” to apply gauze. (App. Br. at 4, 48). The actual deposition 8 testimony is that the plaintiff “took out” the intravenous line (R. 244) and a nurse “went to grab a gauze to put over the bleeding on his arm.” (R. 631). The plaintiff also mischaracterizes the deposition testimony with respect to the pills he took. While it is true that there was testimony that librium can have an adverse effect, the defendants did not testify, as the plaintiff suggests, that it did have such an effect and render him incompetent. (R. 506, 617). Relevant Legislative History In 1965, the Legislature amended the Mental Hygiene Law to include a new article (then numbered article 10) with respect to the treatment of alcoholics. This new article included sections on the voluntary and involuntary admission of alcoholics for treatment. The statute defined an alcoholic as a person who has lost control over his consumption. Mental Hygiene Law of 1965, Art. 10 § 301(a). (C. 3).1 Under the statute, the involuntary admission of an alcoholic who was not 1 For the court’s convenience, the relevant legislative history is being submitted (over the plaintiff’s objection) in a separately bound compendium. “C. __” references are to these two volumes. Because these materials are public records, the Court may take judicial notice of them, regardless of the form in which they come to this court’s attention. Outlet Embroidery Co. v. Derwent Mills, 254 N.Y. 179 (1930) (holding that the court may take judicial notice of a congressional debate); Browne v. City of New York, 213 A.D. 206 (1st Dep’t 1925), aff’d, 241 N.Y. 96 (1925) (holding that the court may take judicial notice of the legislative journals as they are public records); Rex Paving Corp. v. White, 139 A.D.2d 176 (3d Dep’t 1988) (holding that the court may take judicial notice of the governor’s letter to an agency). 9 also mentally ill required the application of a relative (or other authorized individual) and the certification by two physicians of the need for treatment as an alcoholic. Mental Hygiene Law of 1965, Art. 10 § 307. (C. 6). As the Department of Mental Hygiene’s July 7, 1965 memorandum in support of this legislation explains, the section concerning involuntary admission paralleled, with some omissions, the already-existing sections concerning the involuntary admission of the mentally ill. (C. 37). As the memorandum additionally explains, it is only through this legislation that the Department of Mental Hygiene acquired the power to confine and treat alcoholics involuntarily. (C. 38). Article 10 was re-codified in 1972 as article 35. Section 35.23 continued to authorize two physicians to retain an alcoholic at the hospital for treatment upon certifying that the person was in need of involuntary treatment. (C. 116). A special provision was also enacted at this time (section 35.33) which permitted, for the first time, the voluntary, emergency treatment or observation of intoxicated alcoholics. (C. 119). This section also authorized the police to transport intoxicated persons to hospitals for treatment provided they did so without the person’s objection.2 (C. 119). 2 Apparently, there had been some confusion and administrative error in executing the re- codification and the amendments, requiring the legislature to amend its original chapter law (1972 ch. 251) (C. 120), which had achieved re-codification with another chapter (1972 ch. 644) (C. 484) which incorporated the revisions to the text. 10 The continually evolving statute reflects the Legislature’s ongoing struggle to find the proper boundaries for mandating the treatment of alcoholics and those incapacitated by alcohol. In fact, Governor Rockefeller, in his memorandum in support of the 1972 amendments, informed the Legislature that he was “directing the Department of Mental Hygiene … to prepare for prefiling and early consideration …a measure to clarify the existing state of the law and to obviate any ambiguities.” Governor Rockefeller’s memorandum in support, dated May 30, 1972. (C. 521).3 Further revisions to the law followed in 1974.4 L.1974 ch. 1068. (C. 542). The provisions permitting physicians to admit an alcoholic involuntarily for treatment (on application of the family) remained in effect, but the Legislature amended section 35.33 to permit the involuntary detention of persons incapacitated by alcohol provided that they were brought to the facility by police. (C. 537). This 3 The Legislature’s continuing efforts to address various issues relating to alcoholism, including the proper balance between treatment and criminal penalties, are reflected, for example, in Senator James McFarland’s letter urging Governor Wilson to sign new, further amended legislation, in which he informed the Governor that he had “introduced legislation which would require treatment instead of criminal penalties for those convicted of driving while intoxicated” and that “[i]n the past, [he has] sponsored legislation calling for the establishment in Buffalo of an alcoholism center for the treatment of females.” Further, that “[o]n a personal note, [he is] trying desperately to cut down [his] intake which is aggravated by the frustration of being in the State Senate.” May 22, 1974 letter to Governor Wilson from Senator McFarland. (C. 557). Evidently, efforts to curtail drinking were underway on all fronts. 4 Additional amendments, to language not implicated on this appeal were made repeatedly. These amendments are omitted from the recitation of the relevant legislative history since they have no bearing on the issues now before this court. 11 was the first time that involuntary detention for observation of intoxication (as opposed to treatment of alcoholism) was authorized. As the memoranda in support make clear, one practical goal for these detentions was to decrease traffic accidents (that is, to have a mechanism by which the police could prevent those incapacitated by alcohol, but not suspected of having committed any crime, from getting behind the wheel). May 24, 1974 memorandum in support from Senator Caemmerer to Governor Wilson. (C. 553). The potential problems with authorizing treatment over objection did not go unnoticed, however. The Department of Health cautioned that [p]ossible difficulties may arise insofar as involuntary admissions and detentions are concerned. Such action may constitute an unconstitutionally unreasonable interference with the personal liberty of an intoxicated or incapacitated person who objects to care and treatment. In line with this problem is the judgmental one of placing the burden on a person, presumably a peace officer, of determining sua sponte such matters as whether a person is an alcoholic. May 13, 1974 letter from Donald MacHarg, General Counsel of the Department of Health, to the Honorable Michael Whiteman, counsel to Governor Wilson (C. 576) (emphasis supplied). These objections aside, however, the bill was overwhelmingly favored and was signed by the governor. 12 When this section took effect in 1976, the Mental Hygiene Law provided as follows: (b) A person who appears to be incapacitated by alcohol to the degree that he may endanger himself or other persons or properly may be taken by a peace officer of the state, town, village, county or city who is a member of the state police or of an authorized police department or force or of a sheriff’s department or by the director of community services or a person duly designated by him to an alcoholism facility for immediate observation, care, and emergency treatment or, if no alcoholism facility is available, to any other place authorized by the commissioner to give emergency treatment. Every reasonable offer shall be made to protect the health and safety of such person. . . . (d) A person who is brought to any [alcoholism treatment] facility and who previously objected to being brought thereto, shall be examined as soon as possible by an examining physician. If such examining physician determines that such person is incapacitated by alcohol to the degree that he may endanger himself or other persons or property, he may be retained for emergency treatment. … In no event may such person be retained against his objection beyond (i) the time that he is no longer incapacitated by alcohol to the degree that he may ender himself or other persons or property, or (ii) a period longer than twenty four hours. Mental Hygiene Law of 1976 § 35.33(b), (d). (C. 537). The Legislature repealed the provisions permitting physicians to admit alcoholics involuntarily when it adopted chapter 978 of the laws of 1977. (C. 686). Although Article 10 (later re-numbered Article 35, then Article 21) had originally 13 been written to mirror the provisions relating to the mentally ill, with this repeal, the legislature severed the parallel between the involuntary admission of the mentally ill (the responsibility for which continued to rest on physicians) and the involuntary detention of the intoxicated (which was a burden placed on police). With this change, the only avenue that remained for the involuntary treatment of alcoholics was that authorized by the 1974 addition to section 33.35, which permitted involuntary observation of patients brought to the hospital by the police. This section was re-numbered and continued (by consolidation of subsections but without significant change), as § 21.09. Accordingly, as of 1978 (when the law came into effect), the law became that [a] person who appears to be incapacitated by alcohol to the degree that he may endanger himself or other persons or property may be taken by [police] to an alcoholism facility for immediate observation, care, and emergency treatment or, if no alcoholism facility is available, to any other place authorized by the director to give emergency treatment. (C. 661). The Mental Hygiene Law was re-codified in 1999, and article 21 became article 22 (C. 717), but there have been no relevant, significant changes since. The Mental Hygiene Law currently provides that “receipt of emergency services for incapacitated persons shall be governed in accordance with section 22.09.” Mental Hygiene Law § 22.07. The relevant portions of section 22.09 provide as follows: 14 A person who appears to be incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or to others may be taken by a peace officer acting pursuant to his or her special duties, or a police officer who is a member of the state police or of an authorized police department or force or of a sheriff’s department or by the director of community services or a person duly designated by him or her to a general hospital or to any other place authorized by the commissioner in regulations promulgated in accordance with subdivision (f) of this section to give emergency treatment, for immediate observation, care, and emergency treatment. … Mental Hygiene Law § 22.09(c). A person who comes voluntarily or is brought without his or her objection to any such facility or program in accordance with subdivision (c) of this section shall be given emergency care and treatment at such place if found suitable therefor by authorized personnel, or referred to another suitable facility or treatment program for care and treatment, or sent to his or her home. Mental Hygiene Law § 22.09(d). A person who is brought with his or her objection to any facility or treatment program in accordance with subdivision (c) of this section shall be examined as soon as possible by an examining physician. If such examining physician determines that such person is incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or others, he or she may be retained for emergency treatment. If the examining physician determines that such person is not incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or others, he or she must be released. Notwithstanding any other law, in no event may such person be retained against his or her objection beyond whichever is the 15 shorter of the following: (i) the time that he or she is no longer incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or others or (ii) a period longer than forty-eight hours. Mental Hygiene Law § 22.09(e). This was the state of the law when the plaintiff was injured. Argument I Dr. Chintapalli Had No Authority under the Mental Hygiene Law to Detain the Plaintiff since the Plaintiff Came to the Hospital Voluntarily The Mental Hygiene Law permits a physician to detain an intoxicated person for treatment only where that person has been brought to the hospital involuntarily. There is no authority in the Mental Hygiene Law for a physician to detain an intoxicated person involuntarily where that person has arrived at the hospital voluntarily. The legislative history establishes, moreover, that the omission of such authority was the result of a conscious decision by the Legislature. Thus, because the plaintiff arrived at the hospital voluntarily, Dr. Chintapalli had no authority under the Mental Hygiene Law to detain him. A. Article 22 of the Mental Hygiene Law Authorizes the Involuntary Detention of an Intoxicated Person only Where the Person was Brought to the Hospital Involuntarily by a Peace Officer or Police Officer. “[A]lcoholism is not considered a mental illness under the Mental Hygiene Law and a person cannot be involuntarily confined under the statute solely for 16 treatment of alcoholism.” Lawlor v. Lenox Hill Hosp., 74 A.D.3d 695, 696 (1st Dep’t 2010), lv. denied 15 N.Y.3d 719 (2010).5 To the extent that it does address intoxication, the Mental Hygiene Law does so in Article 22, in the context of care for persons who suffer from chemical abuse, which is defined to include the use of alcohol to the point of impairment. Mental Hygiene Law § 1.03(25). Article 22 provides that the “receipt of emergency services for incapacitated persons shall be governed in accordance with section 22.09 of this article.” Mental Hygiene Law § 22.07. Section 22.09 distinguishes between intoxicated persons who seek treatment voluntarily and those who are brought to a facility involuntarily. It is only with respect to the latter that the statute provides any authority for detention or involuntary treatment. Specifically, section 22.09(e) provides as follows: A person who is brought with his or her objection to any facility or treatment program in accordance with subdivision (c) of this section shall be examined as soon as possible by an examining physician. If such examining physician determines that such person is incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or others, he or she may be retained for emergency treatment. If the examining physician determines that such person is not incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or others, he or she must be released. Notwithstanding any 5 The plaintiff concedes that he was not mentally ill. (App. Br. at 29). 17 other law, in no event may such person be retained against his or her objection beyond whichever is the shorter of the following: (i) the time that he or she is no longer incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or others or (ii) a period longer than forty-eight hours. Mental Hygiene Law § 22.09(e). By contrast, section 22.09(d), which deals with persons who have come to the facility voluntarily, contains no authority for involuntary detention. It provides as follows: A person who comes voluntarily or is brought without his or her objection to any such facility or program in accordance with subdivision (c) of this section shall be given emergency care and treatment at such place if found suitable therefor by authorized personnel, or referred to another suitable facility or treatment program for care and treatment, or sent to his or her home. Mental Hygiene Law § 22.09(d). The legislative history establishes that the Legislature’s omission of provision for the involuntary detention of intoxicated persons who present themselves voluntarily for treatment was intentional. The Mental Hygiene Law originally provided for the commitment of alcoholics in the same manner as for the mentally ill. (C. 35). The 1974 amendments continued those provisions permitting physicians to admit an alcoholic involuntarily for treatment on application of the patient’s family, but added a provision permitting the involuntary detention of 18 persons incapacitated by alcohol who were brought to the facility by the police. L.1974, ch. 1068. (C. 537, 542). In 1976, however, after the Department of Health had raised concerns about such involuntary detention, the Legislature re-enacted the provisions of the Mental Hygiene Law with respect to the treatment of intoxicated persons once again, this time without any provision for the involuntary detention of intoxicated persons who voluntarily seek treatment. (C. 686). “Where a statute is amended, . . . the parts of the old act omitted from the new act are impliedly repealed. The change in the phraseology was undoubtedly deliberate.” Bates v. Lang, 26 A.D.2d 462, 466 (1st Dep’t 1966); see Randall v. Bailey, 288 N.Y. 280, 289 (1942); In re Prime’s Estate, 136 N.Y. 347, 355 (1893); Moore v. Mausert, 49 N.Y. 332, 335 (1872). Thus, the 1976 re-enactment of what is now article 22 (and was at the time article 35) of the Mental Hygiene Law without the provision permitting a physician to detain involuntarily a person who has voluntarily sought treatment establishes the Legislature’s intent that no New York physician shall have the authority to detain such an intoxicated person. The Legislature has consciously limited that authority to situations in which the intoxicated person has been brought for treatment involuntarily by the police. The plaintiff’s assertion that it is absurd for the law to permit a police officer, but not a physician, to detain an intoxicated person against his or her will clearly misses the point. The issue is not whether treatment is appropriate or not. 19 The issue is the exercise of the state’s power to detain a person against his or her will. In that regard, the Legislature’s caution that the liberties of New Yorkers be protected against even well-meaning restrictions is well-founded. “A statute sanctioning such a drastic curtailment of the rights of citizens [as involuntary confinement] must be narrowly, even grudgingly, construed in order to avoid deprivations of liberty without due process of law.” Kesselbrenner v. Anonymous, 33 N.Y.2d 161, 167 (1973). The plain language of the statute, which requires that the intoxicated person be brought to the hospital by the police before he or she may be detained involuntarily, cannot be broadened without disrupting the legislative scheme and depriving the detainee of the (due) process that the Legislature has determined should be incorporated into the Mental Hygiene Law. There is no basis for doing that here. It is only with the safeguards established by the Mental Hygiene Law, moreover, that such detention is constitutional at all. Deviation from the prescribed procedure renders the detention constitutionally impermissible. See Pilgrim v. Quick, 34 A.D.2d 562 (2d Dep’t 1970) (holding, under the then-applicable version of the Mental Hygiene Law, which permitted a physician to admit a person involuntarily on a family member’s request, that where an alleged substance abuser was not advised of his right to a jury trial, his detention was procedurally defective and he had to be released). 20 The situation presented in Narcotic Addiction Control Commission v. James, 22 N.Y.2d 545 (1968) is illustrative. That case involved the involuntary detention of a drug abuser under parallel provisions of the Mental Hygiene Law as those at issue here which, at the time, permitted a family member to petition the court for involuntary detention of an addict. The issue was whether the alleged addict could be held in the hospital for three days for evaluation before the issue of his detention was presented for judicial determination. While sustaining the statute generally, this Court held that the three-day detention violated the alleged addict’s right to due process of law. The Court stated: The detention of this appellant, who was charged with no crime, against his will for a period of three days, without notice of the nature of the proceeding and an opportunity to contest the finding upon which the determination to restrain his personal liberty was predicated, is contrary to our most fundamental notions of fairness and constitutes a deprivation of liberty without due process of law. 22 N.Y.2d at 545. This is not surprising. Since the earliest iterations of the law in this regard through today, New York’s courts have always recognized that involuntary detention (whether for incompetence, mental illness or intoxication) is fundamentally an exercise of the police power, not a question of medical practice. See Ordway v. St. Saviour’s Sanitarium, 34 A.D. 363, 370 (1st Dep’t 1898) (holding, in the context of the involuntary detention of an alcoholic, that “[i]t is not 21 open to contest that … temporary commitments of a summary character may be made ex parte and in the exercise of the general police power of the State”) (emphasis supplied); Matter of K.L.¸ 1 N.Y.3d 362, 370 (2004) (holding that “where a patient presents a danger to self or others, the state may be warranted, in the exercise of its police power interest in preventing violence and maintaining order, in mandating treatment over the patient’s objection”) (emphasis supplied). “That [the] seizure occurred in the civil context does not render the Fourth Amendment inapplicable.” Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993) (holding that physicians and nurses involuntarily detaining a person pursuant to New York’s Mental Hygiene Law are subject to qualified immunity and citing Soldal v. Cook County, 506 U.S. 56 [1992]); cf., Rivers v. Katz, 67 N.Y.2d 485, 495 (“Where the patient presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution, the State may be warranted, in the exercise of its police power, in administering antipsychotic medication over the patient’s objections.”) (emphasis supplied). Ordway involved an alcoholic (then referred to as an “inebriate female”) who initially sought treatment but then changed her mind. 34 A.D. at 364. The statute governing this admission, chapter 467 of the Laws of 1892, was an early version of the current Mental Hygiene Law. It authorized a facility either to detain a person who has voluntarily surrendered herself for treatment or to receive such a 22 person who had been committed by the courts. The statute did not permit the facility (or its physicians) to commit a person involuntarily to its care. The issue was whether the requirements of due process had been satisfied when, after the patient wished no longer to be treated, she was detained in the “sanatorium” for further treatment. The court noted that “by the surrender … of her person to the custody of the [facility] she did not bind herself to remain… [and] [t]here is nothing … by which she consented to deprive herself of her liberty.” 34 A.D. at 369. More than a hundred years later, the same logic and the same law apply. The plaintiff did not surrender his constitutional rights when he entered St. Francis Hospital. The fact that he now wishes he had done so does not change the state of facts, or the legal relationship between the parties, at the time. As a voluntary patient, he had the right to leave whenever he chose. There was no statutory authority by which Dr. Chintapalli and the physicians and staff of St. Francis Hospital could detain the plaintiff against his will. Had they done so, they would have been acting in direct violation of his rights as a voluntary patient. B. Even if the Plaintiff Had Been Brought to the Hospital Involuntarily, Dr. Chintapalli Would Have Had No Authority to Detain Him for His Own Good. New York law does not countenance restraint merely for the good of the patient. See Gilliard v. Sanchez, 219 A.D.2d 500 (1st Dep’t 1995). In Gilliard, a 23 mentally ill patient refused to take his diabetes medication. This refusal exacerbated his mental illness, and involuntary confinement was sought. The Appellate Division, First Department, held that the patient could not be confined against his will. “Treatment of a chronic medical condition is not a legitimate purpose of involuntary confinement in a psychiatric hospital.” 219 A.D.2d at 501. The Appellate Division, Second Department, has agreed. In Matter of Harry M., 96 A.D.2d 201 (2d Dep’t 1983), the Appellate Division, Second Department, noted that in order to justify the involuntary detention of such a patient, the patient must pose “a substantial threat to his physical well-being.” 96 A.D.2d at 206 (emphasis supplied). The patient’s freedom to make even bad choices is absolute, unless the patient is likely to cause harm. 96 A.D.2d at 207. When people who might be better off if they were institutionalized “prefer not to [be] so, regardless of the wisdom of their decision or the strength of their reasoning powers, they have their constitutional right to follow their own desires.” Id., citing Matter of Edward L., 137 A.D.2d 818, 819 (2d Dep’t 1988) (holding, in the absence of evidence of likely harm, that the patient who refused treatment could not be confined against his will even though a physician testified that the patient was mentally ill and “lacked insight and judgment.”) In short, absent a showing of imminent and likely substantial harm, no person may be involuntarily detained for treatment. Just as the 24 individuals in Gillard and Harry M. could not be restrained merely because it would have been better for them, neither could the plaintiff. Even an intoxicated person who has been brought into a hospital by a police officer may not be detained involuntarily merely because he or she is intoxicated. No such detention is permissible without a determination by the examining physician that the intoxicated person is “incapacitated by alcohol and/or substances to a degree that there is a likelihood to result in harm to the person or others.” Mental Hygiene Law § 22.09(4)(e). That proof, moreover, must be by clear and convincing evidence. See Foucha v. Louisiana, 504 U.S. 71 (1992); Addington v. Texas, 441 U.S. 418 (1979); Scopes v. Shah, 59 A.D.2d 203, 204 (3d Dep’t 1977). The statutory definitions in this regard are rigorous. Incapacitated, in this context, means that the “person, as a result of the use of alcohol and/or substances, is unconscious or has his or her judgment otherwise so impaired that he or she is incapable of realizing and making a rational decision with respect to his or her need for treatment.” Mental Hygiene Law § 22.09(a)(2). But incapacitation satisfies only part of the statutory standard. The statute further requires that the incapacitation be “to a degree that there is a likelihood to result in harm to the person or others.” That portion of the statute has its own definition: ‘Likelihood to result in harm’ . . . means (i) a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or 25 other conduct demonstrating that the person is dangerous to himself or herself, or (ii) 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. Mental Hygiene Law § 22.09(a)(3). The plaintiff satisfies neither of these standards. The essential facts in this regard are not in dispute. This is not a battle of experts. It is undisputed that during his presentation to the hospital on December 20, 2006, the plaintiff never manifested any signs that he posed an imminent – much less substantial or serious – threat of harm to himself or others. In fact, as an alcoholic with an extensive history of drinking, the plaintiff had been just as intoxicated many, many times before. He was not injured on his way to the hospital or while he was there. He was able to walk without assistance and without staggering. He was not threatening harm to himself or anyone else. So, while the plaintiff claims that his intoxication was bound to lead to injury, there was actually no reason to think that he would harm himself or that such harm was substantially likely to occur. The plaintiff himself admitted that he was not suicidal. (R. 213). His own experts did not claim otherwise. (R. 1265, 1278, 1284). None of his experts claimed that he was mentally ill and none opined that he posed a “significant risk of physical harm” to himself or others. (R. 1265, 1278, 1284). Absent such a 26 “significant risk of physical harm” to himself or others, he could not be involuntarily confined. Nor could he be involuntarily confined without a medical finding of mental illness. Dr. Chintapalli’s expert, Philip R. Muskin, M.D., identified the factors that refuted any finding that the plaintiff posed a substantial risk to himself or others. Dr. Muskin noted, for example, that • The plaintiff did not say that he wanted to hurt himself or anyone else. • He was not showing any signs of acute psychiatric problems. • He was not confused. • He was stable both mentally and physically. • He demonstrated his ability to make decisions (good ones and bad) by coming to the hospital and asking for detoxification treatment, by taking medication to help him detoxification, and by deciding to leave the hospital. • He was coherent and able to follow directions (including in calling a friend to pick him up when it was suggested that he do so). • He was alert, oriented and perfectly aware of what was happening around him. • He was able to walk, and did so with a steady gait and required no assistance. (R. 173). The plaintiff’s prior history does not change the analysis. Even if he had been suicidal in the past, this would not have warranted involuntary treatment during the presentation at issue here, since he was not suicidal then. See Matter of Torsney, 47 N.Y.2d 667, 676 (1979) (holding that a history of dangerous behavior 27 is insufficient basis for involuntary confinement); see also Matter of Torres, 166 A.D.2d 228 (1st Dep’t 1990) (same). In fact, the plaintiff does not claim that he was suicidal during this presentation, nor is there evidence to suggest that his accident was actually a suicide attempt. Even in those circumstances where the Mental Hygiene Law permits the involuntary detention of an intoxicated person, it is clear that detention is impermissible when the intoxicated person is not likely to harm himself or someone else. Mental Hygiene Law § 22.09(e). Here, since the plaintiff did not meet the requirements for involuntary detention on account of his intoxication, he had to be permitted to leave when he so desired. Lawlor, 74 A.D.3d at 695. The plaintiff’s argument is not saved by his assertion that “no substantial curtailment of a patient’s liberty is implicated when a medical professional requires a severly intoxicated plaintiff to wait in the ER in the care of a friend or family member who will be responsible for him.” (App. Br. at 29). The problem with this argument, as the plaintiff’s brief later reveals, is that requiring him to wait, as the plaintiff suggests, means that restraints should have been used to keep him in the emergency department if necessary. (App. Br. at 48). Such an intervention is not innocent at all. See Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993) (involuntarily confinement in hospital by crisis team “was tantamount to the infringement of being arrested”); Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir. 1983) 28 (involuntary admission is “a massive curtailment of liberty”), citing Vitek v. Jones, 445 U.S. 480 (1980). The fact is that the plaintiff demonstrated quite clearly by his actions that he was not going to heed a polite request to stay. Beyond encouraging him to stay, which the defendants did, and suggesting to that he leave only with a sober friend, which they did also, the defendants being medical professionals, and not police officers, were powerless to do anything else. As the Ordway court noted, the police power permits temporary detentions and “may be exerted for the protection of the public health, morals or safety, and the Legislature may pass laws to attain these objects even if sometimes they involve temporary restraint of the person without notice or hearing as in the case suggested.” 34 A.D. at 370, 372 (emphasis supplied); citing Barbier v. Connolly, 113 U. S. 27 (1884); Mugler v. Kansas, 123 U.S. 623 (1887); People v. Ewer, 141 N.Y. 129 (1894). As this language demonstrates, however, it was abundantly clear to the courts of New York, even in 1898, that it is only by act of the Legislature that such temporary detentions may be had. This principle is equally clear to the Legislature today, which has stated unequivocally its mandate that Mental Hygiene Law § 22.09 “shall govern …emergency services for those incapacitated by alcohol.” For the reasons that have been stated, however, Dr. Chintapalli had no authority under the Mental Hygiene Law to detain the plaintiff. 29 The plaintiff may disagree with the Legislature’s decision not to delegate the police power of the state to a physician, but the legislative history demonstrates that this was the Legislature’s intent. The provisions of the Mental Hygiene Law permitting the detention of a voluntary patient having been repealed, there is no authority for a physician to detain an intoxicated person for treatment unless that person has been brought to the hospital against his will by a police officer. Here, because the plaintiff presented himself voluntarily for treatment, Dr. Chintapalli had no authority under the Mental Hygiene Law to detain him. Without such authority, Dr. Chintapalli could not have prevented the plaintiff from leaving the hospital and therefore cannot be held liable for the injuries the plaintiff suffered when he did. The Appellate Division correctly granted summary judgment dismissing the complaint and its order should be affirmed. II A Physician Has No Common Law Duty or Authority to Detain an Intoxicated Person Involuntarily Despite his insistence that a jury should be permitted to hear this case, the plaintiff recognizes that whether a duty exists is a threshold question of law that must be decided by the court. App. Br. at 13. His argument that Dr. Chintapalli had a duty to detain him because he would be at risk upon leaving the hospital is, however, incorrect. 30 The existence of a duty is not simply a function of risk, even where that risk can be reasonably perceived. See Haymon v. Pettit, 9 N.Y.3d 324, 327 (2007). Rather, “duty is defined by the courts, as a matter of policy.” Lauer v. City of New York, 95 N.Y.2d 95, 100 (2000). Courts traditionally and as a part of the common-law process fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.” Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 586 (1994). There can be no duty to act, however, where there is no authority to do so. In Haymon, for example, this Court held that a baseball park operator had no duty to spectators chasing foul balls outside the park, even though it encouraged them to do so, because the operator had no ability to control their conduct. Similarly, an innkeeper has no duty to warn a guest of dangerous surf conditions on a beach it does not control. See Darby v. Compagnie National Air France, 96 N.Y.2d 343, 350 (2001). Even with respect to a condition as commonplace as a falling tree limb, a property owner has no liability for a dangerous condition on an adjacent property because “a person who lacks ownership or control of property cannot fairly be held accountable for injuries resulting from a hazard on the property.” Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636 (2004); see also D’Amico v. 31 Christie, 71 N.Y.2d 76, 85 (1987) (“Landowners . . . have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control.”) Most recently, in Martino v. Salzman, 18 N.Y.3d 905 (2012), this Court held that social hosts have no duty to a person injured by a departing guest because “they were no longer in a position to control [the guest] when he entered his vehicle and drove away” and “requiring social hosts to prevent intoxicated guests from leaving their property would inappropriately expand the concept of duty.” 18 N.Y.3d at 908. Dr. Chintapalli is in the same position as the baseball park operator, the innkeeper, the adjacent property owner and the social hosts. Since the plaintiff had presented voluntarily for treatment of his intoxication, Dr. Chintapalli had no authority to detain him. Because a physician has no authority to control the conduct of a voluntary patient, the physician has no liability to a person injured by that patient. See Purdy v. Public Administrator of Westchester County, 72 N.Y.2d 1 (1988); Engelhart v. County of Orange, 16 A.D.3d 369, 371 (2d Dep’t 2005); Cartier v. Long Island College Hosp., 111 A.D.2d 894, 895 (2d Dep’t 1985). For the same reason, Dr. Chintapalli can have had no liability to the plaintiff for failing to protect him from himself, as the plaintiff now claims. This Court has never held that a physician has a common law right to detain an intoxicated person involuntarily for treatment. To the contrary, whenever this 32 Court has had the occasion to address the extent to which a patient may be subjected to treatment without his or her consent, it has consistently limited those situations to circumstances in which the patient’s consent is implicit or a statute permits involuntary treatment. The plaintiff’s claim here goes far beyond these authorities. The plaintiff argues that because he was intoxicated, Dr. Chintapalli had not only the common law authority, but the common law duty as well, to detain him against his will. There is nothing in New York law to support this argument and the authorities upon which the plaintiff relies to support it, all of which involve interactions with police officers, not physicians, are inapposite. To create such authority in these circumstances would be to override the legislative determination and thereby defeat the statutory framework that was carefully crafted by the Legislature to exclude the possibility of such detention. “It is a firmly established principle of the common law of New York that every individual ‘of adult years and sound mind has a right to determine what shall be done with his own body.’” Rivers v. Katz, 67 N.Y.2d 485, 492 (1986), quoting Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 129 (1914). Although Rivers involved the involuntary administration of antipsychotic drugs, rather than the detention of the patient, the principle is the same. A physician has no right to treat a patient against that patient’s will, even if it is in the patient’s medical interest to 33 do so. That is precisely what the plaintiff claims Dr. Chintapalli should have done here. Where this Court has had the opportunity to address the authority available under the common law for a physician to detain even a mentally ill person, it has not done so. In Matter of Rueda v. Charmaine D., 17 N.Y.3d 522 (2011), a psychiatrist sought to retain an allegedly mentally ill person involuntarily for an additional 30 days. The issue was whether an emergency room psychiatrist had standing under the statute to seek such restraint. In holding, after extensive analysis, that she did, this Court premised its decision on the statutory construction issue and did not even consider the possibility that the physician had the authority to detain the patient under the common law. Similarly, in Narcotic Addiction Control Commission v. James, 22 N.Y.2d 545 (1968), this Court did not consider the common law as a viable alternative to the legislative framework for detaining the patient, even though he was known to be dangerous. In each of these cases, the Court implicitly considered the provisions of the Mental Hygiene Law to define the universe of authority for the involuntary detention of a patient by a physician, thereby implying that there is no such common law authority. Apparently recognizing that there is no authority on point to support his common law claim against Dr. Chintapalli, the plaintiff relies instead on cases holding that a police officer who takes a person into custody must take reasonable 34 measures to ensure that person’s safety. That authority is irrelevant here. Dr. Chintapalli is a physician, not a police officer, he is not in a position to exercise the police power of the state and he never took the plaintiff into custody. Indeed, the plaintiff’s claim is not that Dr. Chintapalli detained him, but that Dr. Chintapalli should have done so. Since he did not, the police detention cases are inapposite. The plaintiff repeatedly cites Parvi v. City of Kingston, 41 N.Y.2d 553 (1977) and Walsh v. Town of Cheektowaga, 237 A.D.2d 947 (4th Dep’t 1997) for the proposition that as a result of the plaintiff’s intoxicated state, the defendants came to charged with a “special duty” to protect him. Neither Parvi nor the Walsh, however, addressed whether the defendant police officers had an obligation to detain the plaintiff. Rather, the issue in each case was whether, having chosen to detain the plaintiff, the police officers had an obligation to do so safely. These cases clearly do not stand for the proposition, necessary to the plaintiff’s argument, that, absent an initial detention, an intoxicated person is entitled to be kept safe by those around him. The common-law requires no such intervention. Parvi and Walsh arise from the exercise of the state’s police power, not the professional obligations of a physician. It is not surprising that this Court would hold that in the carefully limited circumstances in which the state may deploy its police powers to deprive a person of his liberty, it must not do so in a way that also deprives him of his safety. Recognizing this, it is evident that these cases have no 35 application here, where the question is not how, but whether, a physician may restrain a person who no longer wishes to receive treatment. Similarly inapposite are those cases in which a hospital failed to protect a hospital in-patient from a staff member or another patient or the patient herself, such as N.X. v. Cabrini Medical Center, 97 N.Y.2d 247 (2002), Santos v. Unity Hosp., 301 N.Y. 153 (1950), Freeman v. St. Clare’s Hosp., 156 A.D.2d 300 (1st Dep’t 1989), White v. Sheehan Mem. Hosp., 119 A.D.2d 989 (4th Dep’t 1986), Horton v. Niagara Falls Mem. Hosp., 51 A.D.2d 152 (4th Dep’t 1976) and Zophy v. State of New York, 27 A.D.2d 414 (4th Dep’t 1967). Unlike the situation presented here, each of these cases involved the hospital’s failure to provide the care that the patient needed in a safe environment within the hospital. None of these cases, however, involved a claim that the hospital or its physicians or staff should have detained a patient who had come to the hospital voluntarily and was injured after he chose, also voluntarily, to leave the hospital. While the plaintiff argued in the courts below that the common-law theory of “summary arrest” governs this case, he has now abandoned this argument and has chosen instead to exclusively rely on cases concerning the state’s police power to detain. The cases concerning “summary arrest,” however, are the only ones, ever, in New York under which a physician’s power to detain was upheld outside of the Mental Hygiene Law context. Warner v. New York, 297 N.Y. 395 (1948); 36 Emmerich v. Thorley, 35 A.D. 452 (1st Dep’t 1898). These cases do not apply, however, since the application of the doctrine requires the presence of absolutely imminent danger of the kind that is absent here. As this Court explained in Warner, for example, restraint in Emmerich was warranted because in that case “the plaintiff who had been summarily and forcibly restrained was actually in the process of throwing herself out of a window to escape fancied pursuers.” Id. at 401. (Emphasis supplied). Here, the plaintiff simply walked out of the hospital voluntarily. The danger he faced did not materialize until hours after he had left the emergency department. He was clearly not in any imminent danger at the point where the plaintiff claims Dr. Chintapalli should have detained him. Under such “lesser emergencies,” the Warner the court observed, “resort [to the Mental Hygiene Law] must be had.” Warner, 297 N.Y. at 401 (emphasis supplied). There is thus no basis in the common law to impose upon a physician the duty to detain an intoxicated patient against his will, absent circumstances clearly not present here. The Appellate Division, therefore, correctly granted summary judgment dismissing the complaint as against Dr. Chintapalli. 37 III Dr. Chintapalli Had No Duty to the Plaintiff because the Plaintiff Had Terminated the Physician-Patient Relationship “There is no basis for liability for medical malpractice unless the injured party can establish that he or she had a physician-patient relationship with the medical provider, as there is no legal duty in the absence of such a relationship.” Garofalo v. State of New York, 17 A.D.3d 1109 (4th Dep’t 2005), lv. denied 5 N.Y.3d 707 (2005). The plaintiff’s assertion that it is “indisputable” that a physician-patient relationship existed between Dr. Chintapalli and himself (App. Br. at 14) is far from accurate. While it is true that such a relationship was created and maintained when the plaintiff came to the emergency department for treatment, the relationship was terminated when, three hours later, the plaintiff declared that he did not wish to be treated any more, removed the intravenous line from his arm and walked out of the hospital. A physician-patient relationship “is created when the professional services of a physician are rendered to and accepted by another.” Zimmerly v. Good Samaritan Hosp., 261 A.D.2d 614 (2d Dep’t 1999), quoting from Lee v. City of New York, 162 A.D.2d 34, 36 (2d Dep’t 1990). The relationship is one of mutual assent and is terminated when the patient “evince[s] a desire to discontinue treatment.” Blythe v. City of New York, 119 A.D.2d 615, 617 (2d Dep’t 1986); see 38 Miller v. Sullivan, 314 A.D.2d 822 (3d Dep’t 1995) (holding that a physician- patient relationship exists when the physician’s services are not merely rendered but also accepted by the patient); Heller v. Peekskill Community Hosp., 198 A.D.2d 265 (2d Dep’t 1993). By demonstrating through his actions that he had withdrawn that assent, the plaintiff severed his physician-patient relationship with Dr. Chintapalli and relieved Dr. Chintapalli of any further duty of care to him. Miller involved a cardiologist whose prospective patient had a heart-attack in the waiting room. The prospective patient had called the cardiologist’s office prior to his visit and had received medical advice directing him to come immediately to the office. The patient did not comply and came to the cardiologist much later – apparently too late. Given the prospective patient’s rejection of the cardiologist’s advice, the court found that no physician-patient relationship existed. The same logic applies here. The plaintiff had rejected Dr. Chintapalli’s medical advice to stay in bed and in the hospital unless accompanied by a friend. He did so while he was quite obviously able to understand commands and follow them. For example, he called his friend, Mr. Herring, when he was asked to do so and had a perfectly rational conversation with him. Given the plaintiff’s decision to reject advice, by the time he left the hospital, there was no longer any physician- patient relationship between himself and Dr. Chintapalli. 39 Marabello v. City of New York, 99 A.D.2d 133 (2d Dep’t 1984) is instructive in this regard. The continuous treatment question that was at issue in Marabaello turned on whether the patient had maintained his relationship with his physicians such that the statute of limitations would be tolled. Specifically, the treatment at issue consisted of multiple visits to the defendant’s emergency department. On the last two of these visits (naturally, the ones that were necessary to establish a toll), the patient did not stay in the emergency department. At one visit, he registered but left before he was called. At his last visit, he waited to be called and stayed for an initial physical examination and then “walked out.” Id. at 141. On these facts, the court held that it was “clear from the record that both plaintiff and [the hospital] considered plaintiff’s treatment to have been completed” prior to these last two visits. This is to say, of course, that when the patient prematurely severed his visit in the emergency room, his presence there was insufficient to maintain a physician- patient relationship. As these cases show, the willing acceptance of care is a prerequisite to the continuation of a physician-patient relationship and the relationship is severed if the patient – in words and actions – rejects the physician’s services. It is for this reason that the plaintiff’s arguments, premised on a physician’s duty to safeguard his patients, are off the mark. When the physician-patient relationship ends, the physician’s duty to the patient ends. As a result, to the limited extent that cases like 40 N.X. v. Cabrini Medical Center, 97 N.Y.2d 247 (2002), Santos v. Unity Hospital, 301 N.Y. 153 (1950) and Freeman v. St. Clare’s Hospital, 156 A.D.2d 300 (1st Dep’t 1989) are relevant at all, they have no application here, where the patient is no longer in the physician’s care. IV Dr. Chintapalli’s Decision not to Detain the Plaintiff was an Exercise of Professional Judgment for which He Cannot Be Liable, even if His Judgment was Inconsistent with Hospital Protocols No physician is required to assess with absolute accuracy a patient’s dangerous tendencies. To the contrary, so long as he or she exercises professional judgment, the physician is not subject to liability even if the patient subsequently causes harm to himself or others. See Weinreb v. Rice, 266 A.D.2d 454 (2d Dep’t 1999) (holding that summary judgment was appropriate where the defendant physician exercised his professional judgment in releasing a psychiatric patient who then committed suicide); Fiederlein v. City of New York Health & Hosps. Corp., 80 A.D.2d 821, 821 (1st Dep’t 1981) (holding that liability would not arise … if the professional judgment to discharge [the patient] was in fact erroneous” but was made in the exercise of the physician’s best judgment); Schrempf v. State, 66 N.Y.2d 289, 295 (1985) (holding that a physician assessing a patient’s mental state “is not required to achieve success in every case.”) 41 While, with the benefit of hindsight, the plaintiff’s experts may disagree about the danger he posed to himself, such “disagreement represents, at most, a difference of opinion among physicians, which is not sufficient to sustain a prima facie case of malpractice.” Darren v. Safier, 207 A.D.2d 473, 474 (2d Dep’t 1994). Were this not the rule, every judgment made by a physician as to whether an individual should be held would be subjected to the second guess of a jury, few releases would ever be made, and the hope of recovery and rehabilitation of a vast number of patients would be impeded and frustrated. See Topel v. Long Island Jewish Medical Center, 55 N.Y.2d 682 (1981) (holding that setting the interval of observation for a potentially suicidal patient was within that physician’s professional judgment); Davis v. Patel, 287 A.D.2d 479 (2d Dep’t 2001). Even worse, if doctors and hospitals were subjected to liability for not involuntarily detaining intoxicated individuals, they will naturally be impelled to err in favor of confinement (at great monetary cost) and against freedom (at great cost to liberty). In Davis, this court held that psychiatrists who allegedly misdiagnosed a patient who subsequently injured himself by leaping or falling out of a hospital window could not be held liable for malpractice absent a showing that their treatment regimen was something less than a professional medical determination or was not based on careful examination and evaluation of patient’s condition. The same rule must be applied here. Dr. Chintapalli, an emergency room physician, 42 evaluated the plaintiff and determined that he posed no imminent danger to himself or others. Even if this determination were incorrect, it was made in the exercise of Dr. Chintapalli’s judgment. Therefore, there may be no liability. The plaintiff presses the point that the hospital’s rules and regulations required action other than what was done here. While the plaintiff misstates the applicability of the protocols, assuming arguendo that they were not followed when they should have been, that failure is irrelevant. Violation of an internal policy that sets a higher standard than what is otherwise required by law may not even be considered as evidence of negligence. See Conrad v. County of Westchester, 259 A.D.2d 724 (2d Dep’t 1999) (holding that where a policy sets a higher standard than that required by law, the policy may not be shown to the jury as evidence of negligence); Brown v. Metropolitan Transit Authority, 281 A.D.2d 159, 161 (1st Dep’t 2001) (holding that “[w]hile an internal agency rule may be introduced as evidence of the standard of reasonable care, violation of a rule requiring a standard of care higher than the common law can not be a basis for defendants’ liability.”) Conclusion For the foregoing reasons, it is respectfully requested that the order of the Appellate Division, Second Department, granting summary judgment dismissing the complaint as against Dr. Chintapalli should be affirmed. Dated: Of Counsel: New York, New York January 3, 2012 Judy C. Selmeci MarshalS. Endick Jeffrey B. Araten Respectfully submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: i}ix)JJ ad ~71YL0 Robert A. SpoiZifl 43 Attorneys for defendant-respondent Chandra Chintapalli, M.D. 150 East 42nd Street New York, New York 10017-5639 Our File: 04456.00071